noting that 21 under current Ninth Circuit case law, a “finding that 25,000 national jobs is sufficient presents a close 22 call”
How later courts described this case
- noting that 21 under current Ninth Circuit case law, a “finding that 25,000 national jobs is sufficient presents a close 22 call”
- stating that the “ALJ must do more than state 12 conclusions. He must set forth his own interpretations and explain why they, rather than the 13 doctor’s, are correct”
- “It is the nature of bipolar 1 disorder that symptoms wax and wane over time”
- holding that an ALJ cannot selectively rely on some entries 26 in plaintiff’s records while ignoring others
Written by the judges who cited it.
The opinion
1
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7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 EASTERN DIVISION
11
12 KRISTINE S. R., ) No. ED CV 19-1540-PLA
)
13 Plaintiff, ) MEMORANDUM OPINION AND ORDER
)
14 v. )
)
15 ANDREW M. SAUL, COMMISSIONER )
OF SOCIAL SECURITY )
16 ADMINISTRATION, )
)
17 Defendant. )
)
18
19 I.
20 PROCEEDINGS
21 Kristine S. R.1 (“plaintiff”) filed this action on August 16, 2019, seeking review of the
22 Commissioner’s denial of her applications for a period of disability and Disability Insurance
23 Benefits (“DIB”) and for Supplemental Security Income (“SSI”) payments. The parties filed
24 Consents to proceed before a Magistrate Judge on September 9, 2019, and September 24, 2019.
25 Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on June 18,
26
27 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses
plaintiff’s (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birth
28
1 2020, that addresses their positions concerning the disputed issue in the case. The Court has
2 taken the Joint Submission under submission without oral argument.
3
4 II.
5 BACKGROUND
6 Plaintiff was born in 1971. [Administrative Record (“AR”) at 25, 217, 221.] She has no past
7 relevant work experience. [Id. at 25.]
8 On February 10, 2016, plaintiff protectively filed an application for a period of disability and
9 DIB and for SSIpayments, alleging in both that she has been unable to work since September 1,
10 1999.2 [Id. at 15; see also id. at 217-20, 221-30, 241-49.] After her applications were denied
11 initially and upon reconsideration, plaintiff timely filed a request for a hearing before an
12 Administrative Law Judge (“ALJ”). [Id. at 155-57.] A hearing was held on September 10, 2018,
13 at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [Id.
14 at 38-74.] A vocational expert (“VE”) also testified. [Id. at 71-73.] On October 9, 2018, the ALJ
15 issued a decision concluding that plaintiff was not under a disability from September 1, 1999, the
16 alleged onset date, through October 9, 2018, the date of the decision. [Id. at 15-27.] Plaintiff
17 requested review of the ALJ’s decision by the Appeals Council. [Id. at 215-16.] When the Appeals
18 Council denied plaintiff’s request for review on June 28, 2019 [id. at 1-5], the ALJ’s decision
19 became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.
20 2008) (per curiam) (citations omitted). This action followed.
21
22 III.
23 STANDARD OF REVIEW
24 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s
25 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial
26
27
2 At the September 10, 2018, hearing, plaintiff amended her alleged onset date to February
28
1 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622
2 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
3 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means
4 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a
5 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations
6 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible
7 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d
8 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the
9 entire record as a whole, weighing both the evidence that supports and the evidence that detracts
10 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum
11 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)
12 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ
13 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”
14 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80,
15 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must
16 be judged are those upon which the record discloses that its action was based.”).
17
18 IV.
19 THE EVALUATION OF DISABILITY
20 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable
21 to engage in any substantial gainful activity owing to a physical or mental impairment that is
22 expected to result in death or which has lasted or is expected to last for a continuous period of at
23 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting
24 42 U.S.C. § 423(d)(1)(A)).
25
26 A. THE FIVE-STEP EVALUATION PROCESS
27 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing
28 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468
1 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).
2 In the first step, the Commissioner must determine whether the claimant is currently engaged in
3 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry,
4 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the
5 second step requires the Commissioner to determine whether the claimant has a “severe”
6 impairment or combination of impairments significantly limiting her ability to do basic work
7 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has
8 a “severe” impairment or combination of impairments, the third step requires the Commissioner
9 to determine whether the impairment or combination of impairments meets or equals an
10 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P,
11 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the
12 claimant’s impairment or combination of impairments does not meet or equal an impairment in the
13 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient
14 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the
15 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past
16 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets
17 this burden, a prima facie case of disability is established. Id. The Commissioner then bears
18 the burden of establishing that the claimant is not disabled because there is other work existing
19 in “significant numbers” in the national or regional economy the claimant can do, either (1) by
20 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part
21 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue
22 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920;
23 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257.
24
25 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS
26 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since
27
28
1 February 10, 2016, the amended alleged onset date.3 [AR at 18.] At step two, the ALJ concluded
2 that plaintiff has the severe impairments of morbid obesity; schizoaffective disorder, bipolar type;
3 post-traumatic stress disorder (“PTSD”); lumbar degenerative disc disease; and left knee
4 degenerative joint disease. [Id.] At step three, the ALJ determined that plaintiff does not have an
5 impairment or a combination of impairments that meets or medically equals any of the impairments
6 in the Listing. [Id.] The ALJ further found that plaintiff retained the residual functional capacity
7 (“RFC”)4 to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),5 as follows:
8 [She] can stand and/or walk for two hours in an eight hour workday with normal
breaks; can never climb ladders, ropes, and scaffolds; can occasionally climb ramps
9 and stairs; occasionally stoop, kneel, crouch, balance, never crawl; must avoid
vibration; high, exposed places; and working around machinery with unguarded
10 moving parts. In addition, [she] can understand, remember and carry out simple
instructions and make simple work related decisions; can tolerate occasional
11 interaction with co-workers, is unable to interact with the general public, and can
tolerate occasional changes in a routine work setting.
12
13 [Id. at 20-21.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ
14 concluded that plaintiff has no past relevant work. [Id. at 25, 71.] At step five, based on plaintiff’s
15 RFC, vocational factors, and the VE’s testimony, the ALJ found that there are jobs existing in
16 significant numbers in the national economy that plaintiff can perform, including work as a “lens
17 gauger” (Dictionary of Occupational Titles (“DOT”) No. 716.687-030), as a “table worker” (DOT
18
19 3 The ALJ concluded that plaintiff met the insured status requirements of the Social
Security Act through September 30, 1999. [AR at 18.]
20
4 RFC is what a claimant can still do despite existing exertional and nonexertional
21
limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9thCir. 1989). “Between steps
22 three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which
the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149,
23 1151 n.2 (9th Cir. 2007) (citation omitted).
24 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
25
category when it requires a good deal of walking or standing, or when it involves sitting most of the
26 time with some pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of these activities.
27 If someone can do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.”
28
1 No. 739.687-182), and as a “circuit board assembler” (DOT No. 726.689-110).6 [AR at 26, 72.]
2 Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset
3 date of September 1, 1999, through October 9, 2018, the date of the decision. [Id. at 27.]
4
5 V.
6 THE ALJ’S DECISION
7 Plaintiff contends that the ALJ erred when he failed to properly evaluate the opinions of
8 plaintiff’s treating psychiatrist, David Desai, M.D. [JS at 4.] As set forth below, the Court agrees
9 with plaintiff, in part, and remands for further proceedings.
10
11 A. LEGAL STANDARD
12 “There are three types of medical opinions in social security cases: those from treating
13 physicians,examiningphysicians,and non-examining physicians.” Valentine v. Comm’r Soc. Sec.
14 Admin.,574F.3d685,692(9thCir.2009);seealso 20 C.F.R. §§ 404.1502, 404.1527.7 TheNinth
15 Circuithasrecentlyreaffirmedthat“[t]hemedicalopinionofaclaimant’streatingphysicianisgiven
16 ‘controllingweight’solongasit‘iswell-supportedbymedicallyacceptableclinicalandlaboratory
17 diagnostictechniquesandisnotinconsistentwiththeothersubstantialevidencein[theclaimant’s]
18
19
6 Although not at issue herein, the Court observes that the VE testified there are 22,000 and
20 24,000 positions in the national economy for the occupations of lens gauger and table worker,
respectively. See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (noting that
21
under current Ninth Circuit case law, a “finding that 25,000 national jobs is sufficient presents a close
22 call”).
23 7 The Court notes that for all claims filed on or after March 27, 2017, the Rules in 20 C.F.R.
§ 404.1520c (not § 404.1527) shall apply. The new regulations provide that the Social Security
24 Administration “will not defer or give any specific evidentiary weight, including controlling weight,
to any medical opinion(s) or prior administrative medical finding(s), including those from your
25
medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating
26 source,” as well as what is customarily known as the treating source or treating physician rule.
See 20 C.F.R. § 404.1520c; see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). However,
27 the claim in the present case was filed before March 27, 2017, and the Court therefore analyzed
plaintiff’s claim pursuant to the treating source rule set out herein. See also 20 C.F.R. § 404.1527
28
1 case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. §
2 404.1527(c)(2))(secondalterationinoriginal). Thus, “[a]s a general rule, more weight should be
3 given to the opinion of a treating source than to the opinion of doctors who do not treat the
4 claimant.” Lester, 81 F.3d at 830; Garrison, 759 F.3d at 1012 (citing Bray v. Comm’r Soc. Sec.
5 Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)); Turner v. Comm’r of Soc. Sec., 613 F.3d
6 1217, 1222 (9thCir. 2010). “The opinion of an examining physician is, in turn, entitled to greater
7 weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan v. Comm’r
8 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
9 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical
10 opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan,528F.3d
11 at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific and
12 legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan,528
13 F.3d at 1198). When a treating physician’s opinion is not controlling, the ALJ should weigh it
14 according to factors such as the nature, extent, and length of the physician-patient working
15 relationship, the frequency of examinations, whether the physician’s opinion is supported by and
16 consistent with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see
17 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standard
18 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence,
19 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th
20 Cir. 1998). The ALJ “must set forth his own interpretations and explain why they, rather than the
21 [treating or examining] doctors’, are correct.” Id.
22 Although the opinion of a non-examining physician “cannot by itself constitute substantial
23 evidence that justifies the rejection of the opinion of either an examining physician or a treating
24 physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians,
25 psychologists, and other medical specialists who are also experts in Social Security disability
26 evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray, 554
27 F.3d at 1221, 1227 (the ALJ properly relied “in large part on the DDS physician’s assessment” in
28 determining the claimant’s RFC and in rejecting the treating doctor’s testimony regarding the
1 claimant’s functional limitations). Reports of non-examining medical experts “may serve as
2 substantial evidence when they are supported by other evidence in the record and are consistent
3 with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
4
5 B. DR. DESAI’S OPINIONS
6 Dr. Desai, plaintiff’s treating psychiatrist, treated plaintiff from January 14, 2016, to April 25,
7 2018. [AR at 344-74, 496-636, 772.] During that period, and based on the treatment records that
8 are included in the Administrative Record, he saw plaintiff at least twenty-seven times
9 (approximately twice a month through September 2016 and once a month after that through
10 August 2017). [Id.] On April 25, 2018, Dr. Desai provided a “Recommendation Letter for SSI
11 Disability Income” (“Letter”) in which he “verified” that he had treated plaintiff since January 14,
12 2016, for her schizoaffective disorder - depressed, PTSD, and generalized anxiety disorder.8 [Id.
13 at 772.] The Letter stated that plaintiff has “severe depression/anxiety/difficulty concentration
14 [sic]/irritability/poor social interaction.” [Id.] It further stated that because of her symptoms, plaintiff
15 has “moderate difficulty in following & comprehending instructions, inability to do complex and
16 variable tasks of different nature, sensitive to criticism, difficulty getting along with coworkers due
17
18
8 The letterhead on the Letter represents Dr. Desai’s name in the caption heading and in the
19 signature block as “Desai David MD.” [AR at 772.] In contrast, his treatment records indicate that
they were electronically signed by “DESAI, DAVID,” generated by “David Desai,” and/or that plaintiff
20 was “checked out” by “David Desai.” [See, e.g., id. at 500.] Additionally, Dr. Desai’s practice group
is reflected in the treatment records and one facsimile cover sheet as “Inland Psychiatric Medical
21
Group,Inc.” (alternatively “IPMG”), while in the Letter it is merely stated as “Inland Psychiatric Medical
22 Group.” [Compare, e.g., id. at 349, 495, 496, with id. at 772; but see id. at 343 (facsimile cover sheet
from the “Inland Psychiatric Medical Group” medical records department).] Finally, the heading of
23 the Letter indicates that “Desai David MD” is a “Diplomat of American Board for Psychiatry &
Neurology” [id. at 772], while the correct terminology is “Diplomate of American Board of Psychiatry
24 & Neurology,” as reflected on Dr. Desai’s biography on the IPMG website. See, e.g.,
http://www.inlandpsych.com/ providers/david-desai (last visited June 29, 2020). It appears to the
25
Court, therefore, that the Letter may have been prepared by someone other than Dr. Desai and then
26 submitted to him for his signature. On the date that the Letter was dated, and as of the date of the
hearing (when plaintiff’s counsel first submitted the Letter to the ALJ) [AR at 41], plaintiff was
27 represented by a different law firm from the one that is representing her in this appeal. [See id. at 15.]
In any event, it appears that Dr. Desai signed the Letter and the Court, therefore, accepts that it
28
1 to irritably [sic], unable to carry out job responsibilities independently or with supervision.” [Id.]
2 Dr. Desai opined that in his “professional opinion, [plaintiff] will benefit from SSI benefit [sic] due
3 to her chronic mental illness which is holding her from obtain [sic] any job & I strongly recommend
4 it.” [Id.]
5 The ALJ gave “partial weight” to Dr. Desai’s Letter:
6 The assessment of [plaintiff’s] limited to [sic] ability to interact with coworkers and
the general public are adopted in the above residual functional capacity assessment.
7 These limitations are supported by the objective medical evidence and consistent
with evidence from other medical and nonmedical sources, as discussed in this
8 decision. However, the undersigned adopts different mild to moderate mental
limitations because mild to moderate limitations are most consistent with [her]
9 medical records as discussed in this decision. Further, the State agency
psychological consultants opined [plaintiff] only had mild to moderate mental
10 limitations as discussed above, which are inconsistent with [Dr. Desai’s] opinion.
11 [Id. at 24-25.]
12
1. The Parties’ Contentions
13
Plaintiff argues that the ALJ erred when he failed to adopt Dr. Desai’s treating opinions
14
because (1) the ALJ failed to explain how he determined that Dr. Desai’s opinions regarding
15
plaintiff’s “poor social interaction, severe anxiety, and sensitivity to criticism, correlated with the
16
ALJ’s varying RFC limitations with respect to coworkers, supervisors, and the general public; and
17
(2) the ALJ failed to provide specific and legitimate reasons supported by substantial evidence
18
when he discounted Dr. Desai’s treating opinions and gave greater weight to the mild to moderate
19
social limitations found by the State agency medical consultants who reviewed the record because
20
their opinions were the “most consistent” with the medical records.
21
22
a. The ALJ’s Failure to Explain the RFC Social Limitations
23
Plaintiff acknowledges that the ALJ adopted Dr. Desai’s opinions regarding the limitations
24
in her ability to interact with coworkers and the general public when he assessed occasional
25
interaction with coworkers, and no interaction with the general public. [JS at 6 (citing AR at 24).]
26
She notes, however, that Dr. Desai “did not distinguish between the three subcategories of
27
interacting with supervisors, coworkers, and the general public,” but instead generally “found poor
28
1 social interaction,” as well as severe anxiety and sensitivity to criticism. [Id. (citing AR at 722).]
2 She argues that the ALJ “failed to explain how or why Dr. Desai’s statements correlate with
3 limitations in interacting with coworkers and the general public, but not supervisors” -- a “glaring
4 [omission] . . . given that handling criticism is a main component of interacting with supervisors.”
5 [Id. (citing Program Operations Manual System DI (“POMS”) 25020.010, which lists “accept
6 instructions and respond appropriately to criticism from supervisors” as a mental ability “critical for
7 performing unskilled work”).] Plaintiff asserts, therefore, that the “ALJ’s determination that adopts
8 Dr. Desai’s medical findings to assess limitations in social interaction with coworkers and the
9 general public, but not with supervisors, is unsupported.” [Id. at 7.] In the alternative, plaintiff
10 argues that even if Dr. Desai intended to limit plaintiff with respect to interacting with coworkers
11 and the general public, but not with respect to supervisors, the ALJ (who “claimed to have adopted
12 Dr. Desai’s opinions regarding [plaintiff’s] social interaction deficits”) still failed to explain why
13 plaintiff -- who is totally precluded from interacting with the general public -- is otherwise able to
14 interact with coworkers occasionally “or up to one-third of the workday.” [Id.]
15 Defendant responds that the ALJ “reasonably accounted for the unspecified difficulty Dr.
16 Desai opined [with respect to interaction with others] by restricting Plaintiff to occasional interaction
17 with coworkers, [thus] addressing the only specific category of interaction Dr. Desai identified in
18 his opinion,” and then went a step further by precluding any interaction with the public. [Id. at 13
19 (citing AR at 21, 772).] He states that the ALJ’s RFC limitations to occasional interaction with
20 coworkers and no interaction with the public, are supported by the September 14, 2016, opinion
21 of Dr. Walls, “who found that Plaintiff could tolerate limited contact with coworkers and accept
22 supervision, but that due to anxiety around strangers, she would not be successful dealing with
23 the public.” [Id. (citing AR at 112-13, 117-18).] Defendant notes that Dr. Walls stated that Dr.
24 Desai’s mental status examination findings were “essentially normal,” and that other medical
25 evidence of record from the same period reflected that plaintiff “did not mention active mental
26 symptoms at her treatments” and that “[o]bjective findings remained [in] normal range.” [Id. (citing
27 AR at 112, 465-67, 470-73, 481, 645).] He states that based on the evidence as a whole,
28 including the medical opinion evidence and plaintiff’s admitted daily activities (taking care of her
1 twelve-year-old child, regularly socializing with family and friends), “the ALJ reasonably determined
2 that Plaintiff would have the most difficulty dealing with strangers and thus would be better able
3 to interact with coworkers and supervisors than the general public.” [Id. at 14.]
4 Plaintiff replies that Dr. Desai assessed “a global difficulty in social interaction” and that
5 nothing in his Letter “distinguished that [plaintiff] would have no difficulty interacting with
6 supervisors; that she could tolerate occasional interaction with coworkers; and that she is
7 precluded from interacting with the public.” [Id. at 19.] Plaintiff deems it “debatable” as to whether
8 the opinions of Dr. Walls and Dr. Prout – the two non-examining State agency psychological
9 consultants -- even rise to the level of substantial evidence, but asserts that even if they do, “the
10 question here is whether the ALJ committed legal error in evaluating Dr. Desai’s opinions.” [Id.
11 (citing Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)).]
12 In light of the Court’s decision to remand for reconsideration of the medical evidence of
13 record generally, and Dr. Desai’s Letter and treatment records specifically, as discussed below,
14 it will not address these arguments herein.
15
16 b. Weight Given by the ALJ to the Reviewing Consultants
17 Plaintiff takes issue with the ALJ’s determination to assess mild to moderate mental
18 limitations, because he found mild to moderate limitations to be “most consistent” with the medical
19 records and the assessment of the State agency medical consultants who reviewed the record.
20 [Id. (citing AR at 24-25).] She argues that this is not a specific and legitimate reason based on
21 substantial evidence for rejecting a treating doctor’s opinions. [Id. at 8 (citing Lester, 81 F.3d at
22 830-31).] Specifically, she contends that this reason “lacks specificity as a matter of law,” because
23 saying that medical opinions are not supported by sufficient objective findings or are contrary to
24 the conclusions mandated by the objective findings, “does not achieve the level of specificity our
25 prior cases have required, even when the objective factors are listed seriatim.” [Id. (citing
26 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)).] Plaintiff also
27 observes that the ALJ’s determination that the medical records reflect only a mild to moderate
28 degree of severity in her mental limitations is in error, and cites to numerous records from Dr.
1 Desai reflecting either poor symptom control [id. at 8-9 (citing AR at 344, 349, 354, 359, 364, 501,
2 506, 512, 535, 541, 547, 554, 561, 592, 636)], or fair symptom control [id. (citing AR at 370, 496,
3 518, 523, 529, 568, 576, 584, 600, 609, 618, 627).] She further argues that case authority has
4 found that “a fair limitation is sufficiently severe enough to merit consideration,” and “still signifies
5 the presence of significant functional loss.” [Id. at 9 (citing Edlund v. Massanari, 253 F.3d 1152,
6 1154-55 (9th Cir. 2001))9.] Plaintiff states that even if fair control indicates an abatement of
7 symptoms, “periodic periods of assumed cessation of symptoms is not inconsistent with disability,”
8 and notes that at all times she was given a global assessment of function (“GAF”) score of 40.10
9 [Id. (citations omitted).] Plaintiff concludes that the ALJ’s claim that the medical record supports
10 “a mild to moderate degree of functional loss is unsupported,” and asserts that the ALJ erred when
11 he failed to articulate any legitimate reason supported by substantial evidence for discounting Dr.
12 Desai’s opinions. [Id. at 10 (citation omitted).]
13 Defendant responds that the ALJ reasonably gave only partial weight to Dr. Desai’s
14 opinions and greater weight to the opinions of the two State agency consultants, Maurice Prout,
15 Ph.D., and P. Walls, M.D., “who were familiar with requirements of Social Security disability, and
16 whose opinions were more consistent with the record as a whole.” [Id. (citing AR at 19-24, and
17 others).] He states that, as found by the ALJ, Dr. Desai “routinely described” plaintiff’s mental
18 status examinations as “unremarkable” or “generally normal,” and notes that although Dr. Desai
19 stated in his Letter that plaintiff “has been unable to work since 1995,” that was “20 years before
20 he began treating her, due to chronic mental illness.” [Id. (citing AR at 345, 349-50, 354-55, 364-
21 65, 371, 497, 513).] Defendant also points out that the ALJ acknowledged Dr. Desai’s opinion that
22 plaintiff’s symptoms result in poor interactions with others, and asserts that the ALJ properly
23
24 9 The court in Edlund noted that the definition of “fair” reflects that the ability to function “in
this area is seriously limited but not precluded,” for purposes of the ALJ’s step two assessment
25
of the severity of an impairment. Edlund, 253 F.3d at 1154 n.4, 1159. In this case, the ALJ
26 determined at step two that plaintiff’s mental impairments were severe.
27 10 In light of the Court’s determination herein, the issue of plaintiff’s consistently low GAF
score (which was assessed at intake to range from a low of 40 to a high of 55) [AR at 345], and
28
1 concluded that Dr. Desai’s opinions were “overly restrictive in light of the grossly normal clinical
2 findings on mental status examination.” [Id. (citing AR at 19-20, 23-24).] Defendant specifically
3 asserts the following:
4 In contrast to Dr. Desai’s opinion that Plaintiff was unable to perform any work due
to “chronic mental illness,” the ALJ pointed out that the doctor’s mental status
5 examination findings were grossly normal. Indeed, Dr. Desai’s own treatment notes
repeatedly described Plaintiff’s mental status as “unremarkable” and “generally
6 normal.” While Plaintiff complained of anxious/fearful thoughts and depressed
mood, Dr. Desai consistently noted that she nevertheless “had normal appearance,
7 attitude, mood and affect, speech, thought process, perception, thought content,
cognition, insight, judgment and average intelligence.” This inconsistency between
8 Dr. Desai’s opinion and the doctor’s own clinical findings was a valid basis for
discounting his opinion.
9
10 [Id. at 12 (citing AR at 23, 24 and others).]
11 Defendant also contrasts Dr. Desai’s findings of irritability, depression, and anxiety,
12 resulting in poor social interactions, with Dr. Desai’s mental status examinations reflecting “normal
13 moods, insight and judgment,” and “which the ALJ reasonably found indicated no more than
14 moderate limitation in the area of social interaction.” [Id. at 14-15 (citing AR at 19).] Defendant
15 submits that the ALJ’s explanation that Dr. Desai’s “mental status examinations showed Plaintiff
16 usually had normal mood and affect, cognition, intelligence, attitude, and thought content, which
17 indicated only mild limitation with regard to concentrating, persisting, or maintaining pace,” was
18 reasonable. [Id. (citing AR at 19).] Defendant contends that although the ALJ “referred back to
19 his previous discussion [at step two] as to how Plaintiff’s medical records showed only mild to
20 moderate limitations,” rather than repeating his previous detailed step two explanation, this “was
21 sufficient to enable the Court to discern the ALJ’s reasoning.” [Id. (citations omitted).] Defendant
22 again suggests that the ALJ “reasonably accounted for the presence of any functional loss from
23 Plaintiff’s ongoing symptoms by limiting her to a reduced range of simple work” -- again because
24 Dr. Desai said plaintiff had “poor to fair control of her symptoms, yet he also consistently described
25 Plaintiff’s mental status examinations as ‘unremarkable’ and ‘generally normal’ and observed her
26 to have normal cognition, activity, and appearance, cooperative demeanor, clear speech, logical
27 thought process, average intelligence, and normal insight and judgment.” [Id. at 16-17 (citing AR
28 at 19-20, 23-24).]
1 She points out that because the ALJ did not articulate plaintiff’s daily activities as a basis
2 for discounting Dr. Desai’s opinions, defendant’s suggestion that this was a valid reason is “post-
3 hoc rationale [that] should be rejected.”11 [Id. at 19-20 (citing Orn v. Astrue, 495 .3d 625, 630 (9th
4 Cir. 2007)).] In any event, plaintiff argues that activities at home are different from work activities,
5 and defendant “does not explain how interacting with family and friends somehow results in no
6 limitation in interacting with supervisors, occasional interaction with coworkers, and no interaction
7 with the general public.” [Id. at 20 (citations omitted).]
8
9 2. Analysis
10 At step two, the ALJ rejected Dr. Desai’s opinions (that plaintiff would have moderate
11 difficulty in following and comprehending instructions, doing complex and variable tasks of different
12 natures, and carrying out responsibilities independently or with supervision; was sensitive to
13 criticism; and would have difficulty getting along with coworkers), in favor of the mild to moderate
14 mental limitations found by the State agency consultants. [AR at 19-20.] Specifically, with respect
15 to his determination that plaintiff had only a mild limitation in understanding, remembering, or
16 applying information, the ALJ relied primarily on the fact that Dr. Desai’s mental status
17 examinations generally reflected that plaintiff “demonstrated average intelligence and cognition.”
18 [Id. at 19 (citing id. at 347, 349-50, 352, 355, 356, 370-71).] Similarly, with regard to
19 concentrating, persisting, or maintaining pace, the ALJ accepted the opinion of the State agency
20 consultants that plaintiff had mild limitations, based almost exclusively on the fact that Dr. Desai’s
21 mental status examinations reflect that plaintiff “had largely normal findings for mood and affect,
22 cognition, intelligence, attitude, and thought content.” [Id. (citing id. at 347, 349-50, 352, 355,
23
24 11 The Court agrees. “Long-standing principles of administrative law require [this Court] to
review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ -- not
25
posthocrationalizationsthatattempttointuitwhattheadjudicatormayhavebeenthinking.” Bray,
26 554 F.3d at 1225-26 (emphasis added, citation omitted); Pinto v. Massanari, 249 F.3d 840, 847
(9thCir.2001)(“[W]ecannotaffirmthedecisionofanagencyonagroundthattheagencydidnot
27 invoke in making its decision.”). The Court will not consider reasons for discounting medical
opinion evidence that were not given by the ALJ in the decision. See Trevizo, 871F.3dat 677&
28
1 356).]
2 The ALJ, however, did not explain how plaintiff’s “average intelligence and cognition,” and
3 unremarkable or “largely normal” mood and affect, attitude, and thought content as reported during
4 consultations with her psychiatrist means that plaintiff -- contrary to her psychiatrist’s opinion -- is
5 therefore no more than mildly limited in her ability to understand, remember, or apply information,
6 and in her ability to concentrate, persist, or maintain pace. That is, the ALJ does not explain how
7 “average intelligence and cognition” equates to mild limitations in the “ability to understand,
8 remember, or apply information”; or how unremarkable mood and affect, attitude, and thought,
9 equate to mild limitations in the ability to concentrate, persist, or maintain pace. The ALJ’s
10 conclusory statements simply do not amount to a specific and legitimate reason for discrediting
11 Dr. Desai’s opinion. Garrison, 759 F.3d at 1012 (stating that the “ALJ must do more than state
12 conclusions. He must set forth his own interpretations and explain why they, rather than the
13 doctor’s, are correct”).
14 This is especially true where, as here, the ALJ focused on only select portions of Dr.
15 Desai’s treatment notes -- the mental status examinations -- as a basis for his decision and
16 altogether omitted or discounted consideration of the fact that additional significant information in
17 the same records reflecting unremarkable mental status examinations (as well as in Dr. Desai’s
18 other records not mentioned by the ALJ (or by the psychological consultants)) is not consistent
19 with the ALJ’s determination to discount Dr. Desai’s opinions. For instance, a review of the
20 records relied on by the ALJ to support his determination for only mild limitations [AR at 19 (citing
21 id. Ex. 1F at 6, 8-9, 11, 14-15, and 29-30)], reflects that at the four treatment visits covered by
22 those notes, including plaintiff’s initial psychiatric evaluation in January 2016 [id. at 344-47 (Ex.
23 1F at 6)], while the mental status examination itself may have reflected “unremarkable” or
24 “generally normal” findings, the corresponding treatment notes -- which were significantly more
25 detailed -- reflected poorly or fairly controlled symptoms as follows:
26 • January 14, 2016 [Ex. 1F at 6]: plaintiff’s symptoms were described as constant,
27 poorly controlled, and worsening; she described functioning to be very difficult; she
28 presented with “anxious/fearful thoughts, depressed mood, difficulty concentrating,
1 difficulty falling asleep, difficulty staying asleep, diminished interest or pleasure,
2 easily startled, excessive worry, fatigue, feelings of guilt, hallucinations (auditory),
3 paranoia, restlessness and thoughts of death or suicide” [AR at 344]; Dr. Desai
4 independently found plaintiff to be “positive” for these symptoms [id. at 345];
5 • January 27, 2016 [Ex. 1F at 8-9, 11]: plaintiff’s symptoms were described as
6 constant, poorly controlled, and worsening; she described functioning to be very
7 difficult; Dr. Desai independently found plaintiff to be “positive” at this visit for
8 irritability; anxiety; feeling down, depressed or hopeless; hallucinations; little interest
9 or pleasure in doing things; and paranoia [AR at 349-50], but found her negative for
10 suicidal ideation [id. at 350];
11 • February 5, 2016 [Ex. 1F at 14-15]: plaintiff’s symptoms were described as
12 constant, poorly controlled, and as a continuation of her initial symptoms [AR at
13 353]; Dr. Desai independently found plaintiff to be “positive” at this visit for anxiety;
14 excessive worry; and feeling down, depressed, or hopeless; but found her negative
15 for hallucinations and suicidal ideation [id. at 354]; and
16 • April 22, 2016 [Ex. 1F at 29-30]: plaintiff’s symptoms were described as occurring
17 intermittently, “fairly” controlled, and as an improvement of initial symptoms [AR at
18 370]; Dr. Desai, however, also found plaintiff to be positive at this visit for anxiety
19 and hallucinations, but negative for suicidal ideation [id. at 372.]
20 Clearly, plaintiff’s “average intelligence and cognition,” and her unremarkable mood and affect,
21 attitude, and thought at various treatment visits, was considered by the ALJ in isolation, and not
22 with respect to Dr. Desai’s treatment record as a whole.
23 In fact, an ALJ must consider all of the relevant evidence in the record and may not point
24 to only those portions that bolster his findings. See, e.g., Holohan v. Massanari, 246 F.3d 246
25 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely on some entries
26 in plaintiff’s records while ignoring others). As the Ninth Circuit recently explained, with respect
27 to mental health issues, “symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d
28 at 1017; see also Attmore v. Colvin, 827 F.3d 872, 878 (9th Cir. 2016) (“It is the nature of bipolar
1 disorder that symptoms wax and wane over time”). “Cycles of improvement and debilitating
2 symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out
3 a few isolated instances of improvement over a period of months or years and to treat them as a
4 basis for concluding a claimant is capable of working.” Garrison, 750 F.3d at 1017 (citing Holohan,
5 246 F.3d at 1205); see also Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011) (citations
6 omitted) (“There can be a great distance between a patient who responds to treatment and one
7 who is able to enter the workforce, and that difference is borne out in [the] treatment notes. Those
8 notes show that although [plaintiff] had improved with treatment, she nevertheless continued to
9 frequently experience bouts of crying and feelings of paranoia. The ALJ was not permitted to
10 ‘cherry-pick’ from those mixed results to support a denial of benefits.”). Individuals with a mental
11 health issue “experience fluctuations in their symptoms, so any single notation that a patient is
12 feeling better or has had a ‘good day’ does not imply that the condition has been treated.” Scott,
13 647 F.3d at 740 (citation omitted) (in the context of a bipolar disorder).
14 Thus, “[r]eports of ‘improvement’ in the context of mental health issues must be interpreted
15 with an understanding of the patient’s overall well-being and the nature of her symptoms.”
16 Garrison, 759 F.3d at 1017 (citing Ryan, 528 F.3d at 1200-01); see also Holohan, 246 F.3d at
17 1205 (“[The treating physician’s] statements must be read in context of the overall diagnostic
18 picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression
19 makes some improvement does not mean that the person’s impairments no longer seriously affect
20 her ability to function in a workplace.”).
21 Here, the same treatment notes that contain mental status examination findings describing
22 plaintiff as having “average intelligence and cognition,” and “unremarkable” or “normal” mood and
23 affect, attitude, and thought content (among other things) during appointments with her
24 psychiatrist, also indicate that at the four visits relied on by the ALJ between January and April
25 2016 -- and, indeed, at all of her visits to Dr. Desai from January 2016 through late 2017 -- plaintiff
26 consistently presented to Dr. Desai with fairly or poorly controlled symptoms, including, among
27 other things, anxiety, depressed or anxious mood, fearful thoughts, diminished interest, and with
28 reports of hallucinations and/or suicidal ideation. [See also AR at 498 (positive for weight gain;
1 feeling down, depressed or hopeless; hallucinations; paranoia); 503 (positive for difficulty initiating
2 and maintaining sleep); 506 (positive for fatigue; difficulty initiating and maintaining sleep; anxiety;
3 feeling down, depressed or hopeless; suicidal ideation; mental status examination reflected
4 anxious mood); 512 (positive for difficulty initiating and maintaining sleep; anxiety; feeling down,
5 depressed or hopeless; hallucinations); 518 (positive for feeling down, depressed or hopeless);
6 525 (positive for fatigue; anxiety; feeling down, depressed or hopeless; little interest or pleasure
7 in doing things); 531 (positive for fatigue); 537 (positive for fatigue; difficulty maintaining sleep);
8 543 (positive for weight gain; anxiety); 549 (positive for anxiety); 556 (positive for anxiety;
9 excessive worry).] These reports of plaintiff’s ongoing symptoms continue throughout the
10 remainder of Dr. Desai’s treatment record and, even on the last visit in the record before the ALJ
11 and this Court, on August 2, 2017, plaintiff was positive for fatigue; feeling down, depressed, or
12 hopeless; with feelings of guilt; and with little interest or pleasure in doing things. [Id. at 638; see
13 also id. at 557-643.]
14 While a conflict between treatment notes and a provider’s opinion remains a legally sound
15 reason to discount that opinion, in this case it was improper for the ALJ to rely on “normal” or
16 “unremarkable” mental status examination findings when the treatment notes as a whole showed
17 persistent symptoms -- fluctuating between poorly and fairly controlled -- related to plaintiff’s
18 severe impairments of schizoaffective disorder-bipolar type, and PTSD. Garrison, 759 F.3d at
19 1017 (reasoning that the ALJ cannot rely on isolated evidence of improvement when the record
20 as a whole shows continuing cycles of debilitating and less severe symptoms); Attmore, 827 F.3d
21 at 875 (“We cannot affirm . . . by isolating a specific quantum of supporting evidence, but must
22 consider the record as a whole.”). Instead, the ALJ must analyze seemingly inconsistent
23 references in the treatment notes “in the context of the overall diagnostic picture” that the provider
24 has drawn. Holohan, 246 F.3d at 1205. In this case, that holistic analysis did not take place.
25 The ALJ here made passing reference to the fact that plaintiff’s “bipolar symptoms were not
26 well controlled at some points in 2016.” [AR at 23 (emphasis added).] He then cited to the
27 following records:
28 • February 24, 2016, mental status examination reflecting that plaintiff’s mood was
1 depressed with constricted affect [id. at 359-60];
2 • March 3, 2016, treatment note reflecting that plaintiff presented with anxious/fearful
3 thoughts and her mental status examination reflected had a depressed mood,
4 diminished interest or pleasure, auditory hallucinations, and paranoia [id. at 364-65];
5 • September 27, 2016, treatment note reflecting that plaintiff presented with
6 anxious/fearful thoughts, depressed mood, excessive worry, and thoughts of death
7 or suicide (the ALJ neglected to mention, however, that plaintiff had deliberately
8 “cut” herself the prior day) [id. at 561-62; see also id. at 763 (emergency department
9 record noting that plaintiff had made approximately 10 superficial cuts on her left
10 wrist with a razor due to anxiety about a dentist appointment the following day).]
11 The ALJ also stated, however (based, apparently, on Dr. Desai’s April 22, 2016, finding that
12 plaintiff’s symptoms at that point were “fairly controlled”), that “[b]y April 2016, [plaintiff] was able
13 to control her symptoms fairly.” [Id. at 23 (emphasis added) (citing id. at 370).] That, however,
14 does not mean that at the previous visit, the next visit, or at all future visits between April 2016 and
15 August 2017, plaintiff’s symptoms were “fairly controlled” -- as discussed above, this simply was
16 not the case.12 Yet, the ALJ concluded, based on these few examples, as well as on his
17 previously discussed “normal” or “unremarkable” mental status evaluations, that “the objective
18 mental health medical evidence regarding plaintiff’s schizoaffective disorder, bipolar type, and
19 [PTSD] disorder supports the above mental residual functional capacity assessment.” [Id. at 23-
20 24.]
21 The Court finds that the ALJ discounted Dr. Desai’s findings regarding plaintiff’s continuing
22
23 12 Indeed, at the prior visit on March 23, 2016, the mental status examination reflected a
depressed mood, constricted affect, auditory hallucinations, and paranoid thoughts (in addition to
24 average intelligence and normal cognition and insight), and Dr. Desai found plaintiff positive for
fatigue; anxiety; feeling down, depressed or hopeless; hallucinations; little interest or pleasure in
25 doing things; and paranoia [AR at 364-65]; at the subsequent visit on April 28, 2016, he
determined (as he had on April 22, 2016), that the symptoms were fairly controlled but continuing;
26
and plaintiff was positive for weight gain; feeling down, depressed, or hopeless; hallucinations; and
27 paranoia. [Id. at 496.] By the next visit, however, on May 6, 2016, Dr. Desai found that plaintiff’s
symptoms were poorly controlled and occurring constantly, and that plaintiff was positive for
28 difficulty initiating and maintaining sleep. [Id. at 501.]
1 and fluctuating poorly or fairly controlled symptoms without any sort of specific and legitimate
2 explanation supported by substantial evidence, but based instead on the existence of “normal” or
3 “unremarkable” mental status evaluation findings that had little relation to plaintiff’s symptoms or
4 limitations. The ALJ failed to conduct a holistic analysis to consider all of Dr. Desai’s treatment
5 records reflecting plaintiff’s symptoms and, as a result, erred in finding -- without substantial
6 evidence -- that plaintiff’s “normal” or “unremarkable” mental status examination findings were
7 indicative of only mild mental limitations. The ALJ simply did not consider Dr. Desai’s April 2018
8 Letter in the context of the overall diagnostic picture.
9 Additionally, with respect to the fact that the ALJ gave more weight to the non-examining
10 opinions of Dr. Prout and Dr. Walls than to Dr. Desai, who had a long-term treating relationship
11 with plaintiff, the Court notes that Dr. Prout and Dr. Walls only reviewed three of Dr. Desai’s
12 treatment records -- those dated January 14, 2016, February 24, 2016, and April 22, 2016. [Id.
13 at 97-98 (Dr. Prout -- who determined based on these three records that plaintiff’s mental
14 impairment was non-severe), 112-13 (Dr. Walls).] In fact, Dr. Walls on reconsideration not only
15 reviewed only these three mental health treatment notes, but he also noted that although plaintiff
16 alleged worsening of her mental health condition at reconsideration, the additional medical records
17 he had obtained and reviewed from Pinnacle Medical Group (where plaintiff obtained care related
18 to her physical impairments), did not mention “active mental symptoms” or an “increase in
19 paranoia” as was alleged by plaintiff. [Id. at 112-13.] Dr. Walls did not obtain and review any
20 additional records from Dr. Desai from April 2016 through the time of his review in September
21 2016. Nevertheless, the ALJ gave great weight to the opinions of these psychological consultants
22 “because the opinions are based on a review of the case record that includes medical reports
23 about [plaintiff’s] particular impairments,” because they “have an understanding of Social Security
24 disability program policies and their evidentiary requirements,” and because their opinions are
25 supported “by the objective medical evidence or other medical evidence,” which reflected only “a
26 few instances of more concerning mental symptoms that were transitory, as discussed in this
27 decision.” [Id. at 24.] The fact is, these psychological consultants reviewed only three of the six
28 mental health treatment notes that were generated in the first four months of plaintiff’s treatment
1 by Dr. Desai, and were never provided with later notes, some of which reflected “more concerning
2 mental symptoms,” transitory or otherwise continuing.
3 Neither did the ALJ weigh Dr. Desai’s opinion with respect to the nature, extent, and length
4 of the physician-patient working relationship, the frequency of examinations, whether his opinion
5 is supported by and consistent with the record, and his area of specialization. Trevizo, 871 F.3d
6 at 676; see 20 C.F.R. § 404.1527(c)(2)-(6). Dr. Desai had treated plaintiff for almost two years
7 at the time of the hearing (and more than two years at the time he wrote his Letter), had seen her
8 approximately twenty-seven times (at first bi-monthly) and later monthly from January 2016
9 through August 2017, and is a licensed psychiatrist. In contrast, Dr. Prout is a psychologist who
10 reviewed only three of Dr. Desai’s twenty-seven treatment records before determining that plaintiff
11 did not have a mental medically determinable impairment [AR at 83, 84], and Dr. Walls is
12 apparently an M.D. (with no indicated specialization), who also reviewed only three of the twenty-
13 seven treatment records, and who -- like the ALJ -- relied on Dr. Desai’s finding on April 22, 2016,
14 that plaintiff’s symptoms “were said to be fairly controlled,” as well as on unrelated physical health
15 records, to discount plaintiff’s allegations of disabling mental health symptoms and limitations.
16 The Court finds that the reports of these non-examining psychological consultants do not
17 serve as substantial evidence as they are not supported by the overall evidence of record or
18 consistent with it. Andrews, 53 F.3d at 1041. Therefore, the ALJ did not provide specific and
19 legitimate reasons, supported by substantial evidence, for discounting Dr. Desai’s treating opinions
20 in favor of the opinions of the non-examining psychological consultants, and erred when he failed
21 to weigh Dr. Desai’s opinion according to the requisite factors when he determined that Dr. Desai’s
22 treating opinion was not controlling. Trevizo, 871 F.3d at 676.
23 Remand is warranted on this issue.
24
25 VI.
26 REMAND FOR FURTHER PROCEEDINGS
27 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at
28 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where
1 the record has been fully developed, it is appropriate to exercise this discretion to direct an
2 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding
3 issues that must be resolved before a determination can be made, and it is not clear from the
4 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly
5 evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021.
6 In this case, there is an outstanding issue that must be resolved before a final determination
7 can be made. In an effort to expedite these proceedings and to avoid any confusion or
8 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand
9 proceedings. First, because the ALJ failed to provide specific and legitimate reasons for
10 discounting the opinion of Dr. Desai, the ALJ on remand shall reassess the medical opinions of
11 record, including the opinions of Dr. Desai. The ALJ must explain the weight afforded to each
12 opinion and provide legally adequate reasons for any portion of an opinion that the ALJ discounts
13 or rejects. Second, the ALJ, on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s
14 subjective allegations and either credit her testimony as true, or provide specific, clear and
15 convincing reasons, supported by substantial evidence in the case record, for discounting or
16 rejecting any testimony. Third, based on his reevaluation of the entire medical record, and
17 plaintiff’s subjective symptom testimony, the ALJ shall determine plaintiff’s RFC. Finally, the ALJ
18 shall proceed to step five to determine, with the assistance of a VE if necessary, whether plaintiff
19 can perform any other work existing in significant numbers in the regional and national
20 economies.13 See Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017).
21 /
22 /
23
24
25 13 Nothing herein is intended to disrupt the ALJ’s findings regarding the following issues: (1) that
plaintiff has at least the severe impairments of morbid obesity; schizoaffective disorder, bipolar
26
type; post-traumatic stress disorder (“PTSD”); lumbar degenerative disc disease; and left knee
27 degenerative joint disease; (2) that she is capable of no more than a range of light work with at
least the RFC limitations found in the instant decision; or (3) his step four finding that plaintiff has
28 no past relevant work.
1 VIL.
2 CONCLUSION
3 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the
decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further
proceedings consistent with this Memorandum Opinion.
6 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the
Judgment herein on all parties or their counsel.
8 This Memorandum Opinion and Order is not intended for publication, nor is it
9] intended to be included in or submitted to any online service such as Westlaw or Lexis.
0 Jake K. Mramet-
11} DATED: June 30, 2020
PAUL L. ABRAMS
12 UNITED STATES MAGISTRATE JUDGE
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