“‘Where 26 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision 27 should be upheld.”
How later courts described this case
- “‘Where 26 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision 27 should be upheld.”
- “The ALJ must make specific findings 28 relating to the daily activities and their transferability to conclude that a claimant’s 1 daily activities warrant an adverse credibility determination.”
- remanding for an award of benefits is appropriate only in rare ] || circumstances
- reversing 2 where ALJ “developed his evidentiary basis by not fully accounting for the context 3 of materials or all parts of the testimony and reports”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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COREY A. W.,1 Case No. SA CV 19-02286 RAO
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Plaintiff,
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v. MEMORANDUM OPINION AND
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ANDREW M. SAUL, Commissioner of
15 Social Security,
16 Defendant.
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I. INTRODUCTION
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Plaintiff Corey W. (“Plaintiff”) challenges the denial by the Commissioner of
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Social Security (“Defendant”) of her application for supplemental security income
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(“SSI”). She contends that the Administrative Law Judge (“ALJ”) erred when he
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determined that her anxiety disorder would impose essentially no functional
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limitations on her ability to work and when he rejected her subjective symptom
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testimony. For the reasons stated below, the decision of the Commissioner is
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REVERSED, and the matter is REMANDED.
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27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B)
and the recommendation of the Committee on Court Administration and Case
28 Management of the Judicial Conference of the United States.
1 II. SUMMARY OF PROCEEDINGS
2 On November 9, 2015, Plaintiff constructively filed a Title XVI application
3 for SSI, alleging that she had been disabled since January 1, 1998. (Administrative
4 Record (“AR”) 135-43.) Her application was denied initially and upon
5 reconsideration, and she requested and was granted a hearing before an ALJ. (AR
6 45-69, 81-95.) Following a hearing on October 18, 2018, at which Plaintiff appeared
7 with counsel, the ALJ found that Plaintiff had not been disabled at any time from her
8 alleged onset date through November 9, 2018, the date of decision. (AR 12-44.) The
9 ALJ’s decision became the Commissioner’s final decision when the Appeals Council
10 denied Plaintiff’s request for review. (AR 1-6.) This action followed.
11 III. DISCUSSION
12 Plaintiff contends that the ALJ erred at step four of the sequential disability
13 evaluation when he (1) rejected the opinions of the examining and reviewing
14 psychologists that Plaintiff’s social anxiety would limit her ability to interact with
15 others; and (2) discounted Plaintiff’s testimony regarding the limitations imposed by
16 her anxiety. (JS at 4-11, 15-20.)
17 The ALJ followed the five-step sequential evaluation process to assess whether
18 Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d
19 821, 828 n.5 (9th Cir. 1995). Although he found that Plaintiff’s anxiety was a severe
20 impairment, he concluded that it did not meet or equal any impairment listed in the
21 regulations that would by itself establish disability. (AR 17.) Before proceeding to
22 step four, the ALJ found that Plaintiff had the residual functional capacity to perform
23 “a full range of work at all exertional levels” with one non-exertional limitation,
24 namely, that she would “likely miss work or leave early from work at least one day
25 a month due to separation anxiety from” her mother. (AR 19.) In reaching this
26 finding, the ALJ rejected Plaintiff’s testimony that she experienced debilitating panic
27 attacks, could not go places alone, had difficulty interacting with non-family
28 members, found it hard to follow instructions in social situations, and did not handle
1 stress well. (AR 19-20.) At step five, the ALJ adopted the testimony of a vocational
2 expert, who opined that an individual with Plaintiff’s age, lack of work experience,
3 and residual functional capacity would be able to perform work existing in the
4 national economy. (AR 24.) Accordingly, the ALJ found that Plaintiff was not
5 disabled. (AR 24-25.)
6 A. The Examining and Reviewing Psychologists’ Opinions
7 Plaintiff contends that the ALJ erred when he rejected the limitations found by
8 the examining and reviewing psychologists. (JS at 4-11.)
9 The ALJ is responsible for assessing a claimant’s RFC “based on all of the
10 relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c); see
11 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing SSR 96-8p,
12 1996 WL 374184, at *5 (July 2, 1996)). In doing so, the ALJ may consider any
13 statements provided by medical sources, including statements that are not based on
14 formal medical examinations. See 20 C.F.R. §§ 404.1513(a), 404.1545(a)(3). An
15 ALJ’s determination of a claimant’s RFC must be affirmed “if the ALJ applied the
16 proper legal standard and his decision is supported by substantial evidence.” Bayliss
17 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); accord Morgan v. Comm’r of Soc.
18 Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
19 In February 2016, psychologist Dr. Jessica Durr evaluated Plaintiff. (AR 278-
20 83.) Dr. Durr had no medical records to review, but reported Plaintiff’s own account
21 that she had suffered from anxiety for most of her life, could only urinate when at
22 home, had been seen by a psychiatrist for approval to start hormone therapy (and was
23 taking Estridiol, an estrogen hormone), and had “too much anxiety” to take a driver’s
24 test. (AR 279, 280.) Upon examination, Plaintiff was oriented, her thoughts were
25 organized, and her mood appropriate although her affect was labile. (AR 280.)
26 Notably, Plaintiff was “extremely upset and tearful” when she was told her mother
27 had to leave the room during testing but with encouragement was able to complete
28 the testing. (Id.) Plaintiff “did well” on tests that measured her memory,
1 concentration/attention span, insight and judgment, and fund of knowledge. (AR
2 281-82.) Dr. Durr concluded that Plaintiff would have the ability to understand and
3 carry out simplistic and detailed instructions, make simplistic work-related decisions,
4 and interact appropriately with supervisors, coworkers, and peers. (AR 282-83.) Dr.
5 Durr cautioned that the anxiety that Plaintiff suffered when separated from her
6 mother would cause her to “call in, miss shifts, or try to leave early,” which, in the
7 doctor’s view, would create difficulty over time in the job market. (AR 283.) The
8 ALJ gave “great weight” to Dr. Durr’s opinion, noting that her assessment of
9 Plaintiff’s functional limitations was “essentially the same” as the ALJ’s. (AR 23.)
10 Plaintiff contends nevertheless that the ALJ erred by not accepting additional
11 limitations implied by Dr. Durr’s opinion. In Plaintiff’s view, the ALJ’s
12 determination that she would miss work “at least one day a month” due to
13 separation anxiety conflicts with Dr. Durr’s finding that Plaintiff would call in, miss
14 shifts, or try to leave early because of her separation anxiety. Plaintiff argues that,
15 clearly, she would experience anxiety more than once a month because her mother
16 could not be at work with her. (JS at 6-7.)
17 The Court would agree that Plaintiff’s reading is more plausible, particularly
18 considering Dr. Durr’s subsequent warning that Plaintiff’s absenteeism would
19 ultimately create difficulty for her at work. Nevertheless, the Court cannot find that
20 the ALJ’s interpretation was unreasonable. The ALJ was permitted to take into
21 account the fact that Plaintiff appeared to calm down and was able to finish the tests
22 given by Dr. Durr, as well as Dr. Durr’s opinion that Plaintiff would be able to
23 interact appropriately with other people in the workplace. As such, the Court must
24 defer to the ALJ’s decision regarding the functional scope of Dr. Durr’s opinion.
25 See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“‘Where
26 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision
27 should be upheld.”) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).
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1 Plaintiff also contends that the ALJ erred in rejecting the opinions of the state
2 agency reviewing psychologists. For the following reasons, the Court agrees.
3 In March 2016, Dr. Brady Dalton reviewed Plaintiff’s medical records,
4 including Dr. Durr’s evaluation, and concluded that Plaintiff would “work best in
5 low-stress, structured environments with predictable work tasks and with minimal
6 social contacts with others.” (AR 54.) After Plaintiff sought reconsideration, in
7 July 2016, Dr. McWilliams reviewed the updated medical record and opined that
8 Plaintiff would be moderately limited in most aspects of social interaction and
9 concluded that she could “deal with the public and get along with people at work if
10 the contact was brief.” (AR 66.)
11 The ALJ gave “some weight” to the reviewing opinions but declined to adopt
12 the functional limitations assessed therein on the ground that they were inconsistent
13 with the record as a whole. (AR 23.) By way of explanation, the ALJ pointed out
14 that the reviewing doctors’ conclusion that Plaintiff would be moderately limited in
15 her ability to interact with the public and accept instruction was in conflict with Dr.
16 Durr’s report that Plaintiff exhibited cooperative behavior and successfully
17 completed testing in her mother’s absence. (Id.)
18 The ALJ’s reasoning for rejecting the reviewing opinions is not supported by
19 substantial evidence. The limitations found by Drs. Dalton and McWilliams were
20 based on their review of all of Plaintiff’s medical records through July 2016.
21 Although the reviewing doctors noted Dr. Durr’s February 2016 evaluation (AR 47,
22 49, 51, 53, 60), they also relied on subsequent treatment notes that Dr. Durr had not
23 seen, which established that Plaintiff continued to experience panic attacks related
24 to her inability to use public restrooms and had been prescribed citalopram and
25 alprazolam. (AR 62-63.) Because the ALJ failed to address record evidence
26 that undermined his residual functional capacity determination, his decision was in
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1 error. See Reddick v. Chater, 157 F.3d 715, 722-24 (9th Cir. 1998) (reversing
2 where ALJ “developed his evidentiary basis by not fully accounting for the context
3 of materials or all parts of the testimony and reports”). Accordingly, remand is
4 warranted on this issue.
5 B. Plaintiff’s Subjective Symptom Testimony
6 Plaintiff contends that the ALJ erred when he rejected her testimony that she
7 could not work due to her anxiety. (JS at 15-20.) For the following reasons, the
8 Court agrees.
9 Where, as here, the claimant has presented evidence of an underlying
10 impairment and the ALJ did not make a finding of malingering (see AR 19), the ALJ
11 must “evaluate the intensity and persistence of [the] individual’s symptoms . . . and
12 determine the extent to which [those] symptoms limit [his] . . . ability to perform
13 work-related activities.” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *4.
14 In assessing the intensity and persistence of symptoms, the ALJ “examine[s] the
15 entire case record, including the objective medical evidence; an individual’s
16 statements . . . ; statements and other information provided by medical sources and
17 other persons; and any other relevant evidence in the individual’s case record.” Id.
18 at *4. The ALJ must provide specific, clear and convincing reasons for rejecting the
19 claimant’s statements. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017)
20 (citation omitted). The ALJ must identify what testimony was found not credible and
21 explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d
22 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at
23 834.
24 Plaintiff testified that she had suffered from anxiety and panic attacks, even
25 while at home, for six or seven years. (AR 33.) She testified that she had initially
26 2 More generally, the Court is not convinced by the ALJ’s reasoning that Plaintiff’s
27 ability to cooperate with a psychologist, while knowing, one assumes, that her mother
is waiting close by, is evidence that she can interact appropriately on a daily basis
28 with strangers.
1 done poorly at school due to bullying and other reasons but later did well when she
2 was in an independent study program. (AR 33-34.) Despite her academic ability,
3 Plaintiff testified that she did not apply to college because she “just can’t.” (AR 34.)
4 After the ALJ informed her that she had “a brain between those ears” and was “an
5 attractive woman,” Plaintiff testified that she was having a panic attack right at that
6 moment. (AR 35.) In the written reports that she submitted with her SSI application,
7 Plaintiff stated that she “rarely” left the house due to social anxiety, could not go out
8 in public for more than two hours at a time, and spent her time sitting and talking
9 with her family or playing video games on the Internet. (AR 158, 160, 161.)
10 In his decision, the ALJ found that Plaintiff’s testimony would not impose any
11 additional functional limitations beyond missing work once per month. (AR 19-21.)
12 The ALJ rejected Plaintiff’s account of her limitations on two grounds. Neither of
13 them withstands scrutiny.
14 First, the ALJ found that “some of the physical and mental abilities and social
15 interactions required in order to perform [her reported daily activities] are the same
16 as those necessary for obtaining and maintaining employment and are inconsistent
17 with the presence of a debilitating condition.” (AR 20.) In that regard, the ALJ
18 noted that Plaintiff was able to groom herself, prepare simple meals, spend time with
19 family, and play video games online. (Id.) This was not a convincing reason for
20 rejecting Plaintiff’s testimony.
21 That Plaintiff could perform these, very minimal, activities on her own
22 schedule and, more importantly, in her own house with her own family, does not
23 establish that she could work eight hours a day, five days a week on someone else’s
24 schedule, in a different location, and with unfamiliar people. The crux of Plaintiff’s
25 claim for disability is that she suffers from social anxiety. The ALJ simply failed to
26 address how her home activities would transfer to a workplace setting. See Orn v.
27 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“The ALJ must make specific findings
28 relating to the daily activities and their transferability to conclude that a claimant’s
1 daily activities warrant an adverse credibility determination.”) (internal quotation
2 marks omitted).
3 Second, the ALJ found that Plaintiff had not received the type of medical
4 treatment one would expect for a totally disabled individual. (AR 20.) The Court
5 construes this to mean that the ALJ believed Plaintiff’s treatment was conservative.
6 Generally speaking, this is a legitimate reason for discounting a claimant’s
7 credibility. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (holding ALJ
8 properly found treatment with over-the-counter pain medication was reason to
9 discount claimant’s testimony). The record, however, does not support the ALJ’s
10 reasoning.
11 The only mention the ALJ made in his decision about Plaintiff’s course of
12 treatment was a citation to a December 2016 visit note in which she reported “doing
13 well” on Citalopram. (AR 22.) The ALJ did not explain in what way Plaintiff’s
14 prescribed use of Citalopram constituted conservative treatment for an anxiety
15 disorder. Furthermore, the ALJ did not address the record evidence showing that
16 Plaintiff also at times had been prescribed Valium, Xanax, Ativan, Terazosin, and
17 Propanolol for anxiety. (AR 433, 441-44, 511.) Additionally, though the record
18 shows that Plaintiff reported doing well at times, at other times she experienced
19 vomiting during a panic attack and requested an increase in her medication dosage
20 due to an explained increase in her anxiety “for the past 5 days.” (AR 426, 489.)
21 Because the ALJ failed to provide specific, clear, and convincing reasons for
22 discounting Plaintiff’s subjective limitation testimony, remand is warranted on this
23 issue.
24 C. Remand for Further Administrative Proceedings
25 Plaintiff seeks an award of benefits. (JS at 25.) Because further administrative
26 review could remedy the ALJ’s errors, remand for further proceedings, rather than
27 an award of benefits, is warranted here. See Brown-Hunter v. Colvin, 806 F.3d 487,
28 495 (9th Cir. 2015) (remanding for an award of benefits is appropriate only in rare
] || circumstances). In particular, when, as here, “the record as a whole creates □ □ . doubt
2 || as to whether the claimant is, in fact, disabled within the meaning of the Social
3 || Security Act,” the Court retains flexibility to remand for further proceedings. Id.
4 || (citation omitted). On remand, the ALJ should reconsider Plaintiff's residual
5 || functional capacity in light of the Court’s decision. The ALJ is free to obtain further
6 || evidence, included the use of a testifying doctor or a reviewing doctor, supplemental
7 || reports from treating, examining, and reviewing doctors, or any other mechanism that
g || the ALJ deems appropriate.
9 || IV. CONCLUSION
10 IT IS ORDERED that Judgment shall be entered REVERSING the decision of
11 || the Commissioner denying benefits and REMANDING the matter for further
12 || proceedings consistent with this Order.
13 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
14 || Order and the Judgment on counsel for both parties.
Is Rapetls, 4,
16 || DATED: September 30, 2020 SS
V7 ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE
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19 NOTICE
90 || THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.
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