Dawn Renee Emerick v. Andrew Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 SOUTHERN DIVISION

11 DAWN RENEE E.,1 ) Case No. 8:20-cv-00581-JDE

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12 )

Plaintiff, ) MEMORANDUM OPINION AND

13 ) ORDER

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14 v. )

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15 ANDREW SAUL, ) )

Commissioner of Social Security, )

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17 Defendant. )

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19 Plaintiff Dawn Renee E. (“Plaintiff”) filed a Complaint on March 23,

20 2020, seeking review of the Commissioner’s denial of her application for

21 supplemental security income (“SSI”). The parties filed a Joint Submission (“Jt.

22 Stip.”) regarding the issues in dispute on February 3, 2021. The matter now is

23 ready for decision.

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1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P.

27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and

Case Management of the Judicial Conference of the United States.

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1 I.

2 BACKGROUND

3 Plaintiff initially filed for SSI on August 6, 2004, alleging disability

4 commencing April 1, 1991. AR 53, 68, 173-74. At the initial level of review, she

5 was granted SSI on December 22, 2004. AR 53, 68, 174. Plaintiff was later

6 incarcerated in the Orange County Jail and then two women’s institutions from

7 August 2014 until July 2016. AR 229-30. She was treated for mental disorders

8 during her incarceration, and on parole. AR 229-30, 333-47.Shortly after

9 release, on July 28, 2016, she re-filed for SSI, again alleging the April 1, 1991

10 disability onset date. AR 18, 36, 38, 149-57. On November 15, 2018, after her

11 application was denied initially and upon reconsideration (AR 66, 80), Plaintiff,

12 represented by counsel, appeared and testified before an Administrative Law

13 Judge (“ALJ”), as did a vocational expert (“VE”). AR 36-51.

14 On January 28, 2019, the ALJ found Plaintiff was not disabled. AR 18-

15 28. The ALJ found that Plaintiff had not engaged in substantial gainful activity

16 since the application date and had severe impairments of deep vein thrombosis,

17 right knee strain, chronic obstructive pulmonary disease, schizoaffective

18 disorder, and bipolar disorder. AR 20-21. The ALJ also found Plaintiff did not

19 have an impairment or combination of impairments that met or medically

20 equaled a listed impairment (AR 21-23), and she had the residual functional

21 capacity (“RFC”) to perform light work2 except she could (AR 36):

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23 2 “Light work” is defined as

lifting no more than 20 pounds at a time with frequent lifting or

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carrying of objects weighing up to 10 pounds. Even though the weight

25 lifted may be very little, a job is in this category when it requires a good

deal of walking or standing, or when it involves sitting most of the time

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with some pushing and pulling of arm or leg controls. To be considered

27 capable of performing a full or wide range of light work, [a claimant]

must have the ability to do substantially all of these activities.

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1 Occasionally lift and carry 20 pounds, frequently lift and carry 10

2 pounds. Stand and walk with normal breaks for a total of 6 hours of

3 an 8-hour workday. Sit with normal breaks for a total of 6 hours of

4 an 8-hour workday. Occasionally balance, stoop, kneel, crouch, and

5 climb. No crawling, climbing ladders, ropes, or scaffolds. No

6 unprotected heights, dangerous moving machinery, or operating a

7 motor vehicle. No concentrated exposure to humidity, wetness,

8 dusts, odors, fumes, pulmonary irritants, or extremes in cold and

9 heat. Limited to unskilled work, simple tasks, and only occasional

10 interaction with coworkers, supervisors, and general public.

11 The ALJ next found that Plaintiff has no past relevant work. AR 26. The

12 ALJ found that Plaintiff, at 49 years old on the application date, was defined as

13 a “younger individual,” but that she subsequently changed age category to

14 “closely approaching advanced age.” AR 27. The ALJ also found that she has

15 at least a high school education and is able to communicate in English. AR 27.

16 The ALJ next found that, if Plaintiff had the RFC to perform a full range

17 of light work, a Medical-Vocational rule would direct a finding of “not

18 disabled.” AR 27. However, because Plaintiff’s ability to perform all or

19 substantially all the requirements of light work has been impeded by additional

20 limitations, the ALJ consulted the testimony of the VE. AR 27. Considering

21 Plaintiff’s age, education, work experience, RFC, and the VE’s testimony, the

22 ALJ concluded Plaintiff was capable of performing jobs that exist in significant

23 numbers in the national economy, including: assembler of small products

24 (Dictionary of Occupational Titles (“DOT”) 706.684-022), packer, (DOT

25 920.687-166) and mail clerk (DOT 209.687-026). AR 28. Thus, the ALJ

26 concluded Plaintiff was not under a “disability,” as defined in the SSA, since

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20 C.F.R. § 416.967(b); see also Aide R. v. Saul, 2020 WL 7773896, at *2 n.6 (C.D.

28 Cal. Dec. 30, 2020).

1 her application was filed. AR 28.3

2 The Appeals Council denied Plaintiff’s request for review of the ALJ’s

3 decision, making the ALJ’s decision the agency’s final decision. AR 1-7.

4 II.

5 LEGAL STANDARDS

6 A. Standard of Review

7 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s

8 decision to deny benefits. The ALJ’s findings and decision should be upheld if

9 they are free from legal error and supported by substantial evidence based on

10 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

11 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

12 Substantial evidence means such relevant evidence as a reasonable person

13 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504

14 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a

15 preponderance. Id. To assess whether substantial evidence supports a finding,

16 the court “must review the administrative record as a whole, weighing both the

17 evidence that supports and the evidence that detracts from the Commissioner’s

18 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the

19 evidence can reasonably support either affirming or reversing,” the reviewing

20 court “may not substitute its judgment” for that of the Commissioner. Id. at

21 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even

22 when the evidence is susceptible to more than one rational interpretation, [the

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3 The ALJ did not discuss the prior disability determination, and neither the

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decision, nor the Joint Stipulation, indicate whether a presumption of continuing

25 disability attached to it. Underlying documentation indicates the Administration

found that presumptive disability was not appropriate for Plaintiff’s claim. See, e.g.,

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AR 53. It appears Plaintiff’s benefits were suspended under the regulations upon her

27 incarceration, and after 12 months of continuous suspension, they were terminated.

See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th Cir. 2008).

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1 court] must uphold the ALJ’s findings if they are supported by inferences

2 reasonably drawn from the record.”), superseded by regulation on other

3 grounds as stated in Thomas v. Saul, 830 F. App’x 196, 198 (9th Cir. 2020).

4 Lastly, even if an ALJ errs, the decision will be affirmed where such

5 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to

6 the ultimate nondisability determination,” or if “the agency’s path may

7 reasonably be discerned, even if the agency explains its decision with less than

8 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).

9 B. The Five-Step Sequential Evaluation

10 When a claim reaches an ALJ, the ALJ conducts a five-step sequential

11 evaluation to determine at each step if the claimant is or is not disabled. See

12 Ford v. Saul, 950 F.3d 1141, 1148-49 (9th 2020); Molina, 674 F.3d at 1110.

13 First, the ALJ considers whether the claimant currently works at a job

14 that meets the criteria for “substantial gainful activity.” Molina, 674 F.3d at

15 1110. If not, the ALJ proceeds to a second step to determine whether the

16 claimant has a “severe” medically determinable physical or mental impairment

17 or combination of impairments that has lasted for more than twelve months.

18 Id. If so, the ALJ proceeds to a third step to determine whether the claimant’s

19 impairments render the claimant disabled because they “meet or equal” any of

20 the “listed impairments” set forth in the Social Security regulations at 20

21 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec.

22 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). If the claimant’s impairments do

23 not meet or equal a “listed impairment,” before proceeding to the fourth step

24 the ALJ assesses the claimant’s RFC, that is, what the claimant can do on a

25 sustained basis despite the limitations from her impairments. See 20 C.F.R.

26 § 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p.

27 After determining the claimant’s RFC, the ALJ proceeds to the fourth

28 step and determines whether the claimant has the RFC to perform her past

1 relevant work, either as she “actually” performed it when she worked in the

2 past, or as that same job is “generally” performed in the national economy. See

3 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot

4 perform her past relevant work, the ALJ proceeds to a fifth and final step to

5 determine whether there is any other work, in light of the claimant’s RFC, age,

6 education, and work experience, that the claimant can perform and that exists

7 in “significant numbers” in either the national or regional economies. See

8 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can

9 do other work, she is not disabled; but if the claimant cannot do other work

10 and meets the duration requirement, the claimant is disabled. See id. at 1099.

11 The claimant generally bears the burden at steps one through four to

12 show she is disabled or meets the requirements to proceed to the next step and

13 bears the ultimate burden to show she is disabled. See, e.g., Ford, 950 F.3d at

14 1148; Molina, 674 F.3d at 1110. However, at Step Five, the ALJ has a

15 “limited” burden of production to identify representative jobs that the claimant

16 can perform and that exist in “significant” numbers in the economy. See Hill v.

17 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

18 III.

19 DISCUSSION

20 The parties present five disputed issues4 and accompanying sub-issues (Jt.

21 Stip. at 7-48), reordered as:

22 Issue No. 1: Did the ALJ improperly ignore or discredit:

23 (a) the treating physician evidence of Dr. Chau Ton-That and Dr. Mary

24 Poonen,

25 (b) case manager Susan Gondos’s testimony, and

26 (c) Plaintiff’s testimony about her subjective complaints;

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4 Plaintiff presents her requested remedy as a sixth issue. Jt. Stip. at 48-51.

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1 Issue No. 2: Did the ALJ fail to develop the record by failing to:

2 (a) develop and evaluate an earlier period of records during Plaintiff’s

3 incarceration,

4 (b) obtain updated consultative examinations, and

5 (c) obtain an opinion from a medical expert (“ME”);

6 Issue No. 3: Did the ALJ err by failing to provide a consultative examiner

7 (“CE”) Plaintiff’s medical records;

8 Issue No. 4: Did the ALJ mischaracterize and/or ignore evidence of record;

9 and

10 Issue No 5: Did the ALJ err in assessing Plaintiff’s RFC by:

11 (a) failing to account for functional limitations,

12 (b) properly account for Plaintiff’s age, and

13 (c) relying on a hypothetical to the VE that did not incorporate Plaintiff’s

14 limitations.

15 A. Consideration of Treating Physician Evidence.

16 In Issue No. 1, Plaintiff contends the ALJ improperly ignored Dr. Ton-

17 That’s treating physician evidence and improperly ignored or discredited the

18 treating physician evidence of Dr. Poonen. Jt. Stip. at 22-25, 35-37.5

19 1. Applicable Law

20 In determining a claimant’s RFC, an ALJ must consider all relevant

21 evidence in the record, including medical records, lay evidence, and “the effects

22 of symptoms, including pain, that are reasonably attributable to the medical

23 condition.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)

24 (citation omitted).

25 Three types of physicians may offer opinions in Social Security cases:

26 those who treated the plaintiff, those who examined but did not treat the

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5 Plaintiff raises aspects of these challenges in some of the other disputed issues.

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1 plaintiff, and those who did neither. See 20 C.F.R. § 416.927(c); Lester v.

2 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). A treating physician’s

3 opinion is generally entitled to more weight than an examining physician’s

4 opinion, which is generally entitled to more weight than a nonexamining

5 physician’s. Lester, 81 F.3d at 830.

6 When a treating or examining physician’s opinion is uncontroverted by

7 another doctor, it may be rejected only for “clear and convincing reasons.” See

8 Ford, 950 F.3d at 1154. Where such an opinion is contradicted, the ALJ must

9 provide only “specific and legitimate reasons” for discounting it. Id.; see also

10 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Moreover, “[t]he ALJ

11 need not accept the opinion of any physician, including a treating physician, if

12 that opinion is brief, conclusory, and inadequately supported by clinical

13 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord

14 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The weight

15 accorded to a physician’s opinion depends on whether it is accompanied by

16 adequate explanation, the nature and extent of the treatment relationship, and

17 consistency with the record as a whole, among other things. 20 C.F.R.

18 § 416.927(c).

19 “The regulations do not prescribe a fixed time period for when evidence

20 is considered no longer relevant.” Amanda Simone M. v. Comm’r Soc. Sec.,

21 2020 WL 1450428, at *4 (E.D. Wash. Mar. 25, 2020). Although SSI benefits

22 are not payable until one month after the date on which an application is filed,

23 the regulations indicate that the Agency will develop a complete medical

24 history of a claimant “for at least the 12 months preceding the month in which

25 you file your application unless there is reason to believe that development of

26 an earlier period is necessary or unless you say that your disability began less

27 than 12 months before you filed your application.” See 20 C.F.R. §§ 416.335,

28 416.501, 416.912(b); see also Vivianlynne Q. v. Comm’r Soc. Sec., 2020 WL

1 4746228, *5 (W.D. Wash. Aug. 17, 2020) (medical opinions rendered outside

2 the period at issue can have probative value in ascertaining a claimant’s RFC

3 after her alleged onset date).

4 2. Analysis

5 i. Dr. Ton-That

6 On May 2, 2013, Dr. Ton-That completed a complete psychiatric

7 evaluation of Plaintiff. AR 817-19. He provided a detailed summary of her

8 psychiatric history, including depressive, episodic symptoms that developed

9 since she was 25 years old, mood elevation since she was 30, and numerous

10 hospitalizations6 for her psychiatric condition. AR 817. Dr. Ton-That

11 estimated her severity as “moderate.” AR 817. He explained her mental status,

12 including noting that signs of depression and depressed mood were present.

13 AR 818. He diagnosed her with “Bipolar 1, Most Recent Episode Depressed

14 Moderate” along with hypothyroidism. AR 818. Dr. Ton-That prescribed

15 medications of hydroxyzine pamoate, olanzapine, and sertraline to treat her

16 mental health. AR 818.7

17 Thereafter, Dr. Ton-That treated Plaintiff monthly for at least a year. AR

18 820-45. While treatment notes reflect some improvement, they also indicated

19 that her condition was “episodically present,” at times worsening, and

20 described her varyingly as wary, tense, “unhappy,” appearing with a depressed

21 mood, “minimally communicative,” disheveled, and anxious. 830, 832, 836,

22 838, 840, 842, 844. For most of the treatment period, he treated her with the

23 same psychotropic medications that he started at the first encounter, and later

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6 By July 2014, Plaintiff had at least 10 hospitalizations for her condition. AR

25 346, 450.

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7 At the time of the November 2018 hearing, Plaintiff was still taking

27 hydroxyzine pamoate (Vistaril) and sertraline (Zoloft), and additionally ziprasidone

(Geodon) and aripiprazole (Abilify), for her mental condition. AR 42-43.

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1 added lurasidone and quetiapine. AR 833, 839, 841. Toward the end of Dr.

2 Ton-That’s treatment in June 2014, he documented Plaintiff’s three-day stay at

3 the University of California - Irvine Healthcare (“UCI”) “due to hearing voices

4 episodes” and upon examination stated that “[p]sychotic or borderline

5 psychotic process appear[ed] to be present.” AR 844; see also AR 761. He also

6 added “Schizoaffective Disorder, Bipolar Type” as a diagnosis. AR 844.

7 Finally, throughout the treatment period, the doctor consistently opined

8 that Plaintiff was “unable to work.” AR 820, 822, 824, 826, 828, 830, 832, 834,

9 836, 838, 840, 842, 844.

10 Having carefully reviewed the record, the Court agrees with Plaintiff that

11 the ALJ erred by failing to provide any discussion of Dr. Ton-That’s

12 evaluation, treatment notes, or opinion that she could not work. Although an

13 ALJ need not discuss everything in the medical record, an ALJ must discuss

14 significant and probative evidence that is contrary to the ALJ’s findings and

15 explain why it has been rejected. See Robbins, 466 F.3d at 883; Vincent v.

16 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (the ALJ must discuss significant

17 and probative evidence and explain why it was rejected); Alvarez v. Astrue,

18 2012 WL 282110, at *3 (C.D. Cal. Jan. 26, 2012) (“If the RFC assessment

19 conflicts with a medical source opinion, the ALJ must explain why the opinion

20 was not adopted.”). The failure to discuss or even mention Dr. Ton-That’s

21 medical opinion evidence, let alone provide any reason for discounting it, was

22 error. See Garrison, 759 F.3d at 1012-13 (“an ALJ errs when he rejects a

23 medical opinion or assigns it little weight while doing nothing more than

24 ignoring it”); Lester, 81 F.3d at 832-33 (“The Commissioner is required to give

25 weight not only to the treating physician’s clinical findings and interpretation

26 of test results, but also to his subjective judgments[;]” failing to do so is error).

27 Defendant postulates three arguments why Plaintiff’s claim fails: (1)

28 there was no medical opinion from Dr. Ton-That concerning Plaintiff’s ability

1 to work (Jt. Stip. at 26, 28); (2) the record as a whole demonstrates Plaintiff’s

2 mental status-findings were unremarkable (Jt. Stip. at 28); and (3) his treatment

3 notes were of limited relevance because they predated her application by two

4 years or more (Jt. Stip. at 28). Because the ALJ ignored Dr. Ton-That entirely,

5 the Court cannot rely on those reasons to discount him. See Garrison, 759

6 F.3d at 1010 (district court’s review is limited to only grounds relied upon by

7 ALJ) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Orn v.

8 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (the court may review only “the

9 reasons provided by the ALJ in the disability determination and may not

10 affirm the ALJ on a ground upon which [s]he did not rely.” (citation omitted)).

11 However, even were the Court to consider the proffered reasons, they

12 are insufficient. First, as noted above, Dr. Ton-That repeatedly opined that

13 Plaintiff could not work as late as June 2014. AR 820, 822, 824, 826, 828, 830,

14 832, 834, 836, 838, 840, 842, 844. That his opinion was found within his

15 progress notes is immaterial. See Marsh v. Colvin, 792 F.3d 1170, 1172 & n.1

16 (9th Cir. 2015) (rejecting Commissioner’s argument that doctor’s clinical

17 progress notes were not a “medical opinion,” and finding ALJ prejudicially

18 erred by not mentioning them in the written decision).

19 Second, although the Commissioner has summarized some of the

20 unremarkable findings in Dr. Ton-That’s treatment notes, he ignores other

21 evidence noted above. It is well settled that it is the ALJ’s duty to weigh that

22 medical evidence, and the Court declines to so in the first instance. See

23 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (it is ALJ’s obligation

24 to analyze and weigh the evidence, whereas the Court is charged with

25 reviewing ALJ’s decision to determine whether it is supported by substantial

26 evidence and is free from legal error); Lambert v. Saul, 980 F.3d 1266, 1277

27 (2020) (“the ALJ must provide sufficient reasoning that allows us to perform

28 our own review, because the grounds upon which an administrative order

1 must be judged are those upon which the record discloses that its action was

2 based”) (internal quotation marks and citations omitted).

3 Third, and finally, the timing of Dr. Ton-That’s opinion and notes is not

4 a persuasive reason for ignoring them. Defendant correctly notes that Plaintiff

5 protectively re-filed her application for SSI in July 2016, and that SSI benefits

6 would not have been payable until one month later. Jt. Stip. at 13, 28; AR 18,

7 36, 38, 149; see 20 C.F.R. §§ 416.335, 416.501. From that, Defendant argues

8 Dr. Ton-That’s treatment notes, which predated Plaintiff’s application date by

9 two years or more, were of little relevance. Jt. Stip. at 28. However, as

10 mentioned, regulations provide that the Agency will consider Plaintiff’s

11 complete medical history “at least” 12 months before the application was filed,

12 and even earlier if there is reason to believe that development of an earlier

13 period is necessary. See 20 C.F.R. § 416.912(b) (emphasis added). Here, there

14 was ample reason not to ignore the doctor’s medical evidence considering

15 Plaintiff alleged disability beginning April of 1991 and was previously found

16 disabled. AR 18, 36, 38, 149. Dr. Ton-That’s evaluation, treatment notes, and

17 opinion were in the record, well within the relevant period, and near the period

18 the Agency should “at least” consider. Accordingly, they should have been

19 considered and addressed in the decision. See e.g., Dervin v. Astrue, 407 F.

20 App’x 154, 155-56 (9th Cir. 2010) (in cases of chronic mental impairment, the

21 ALJ is required to gather all records of past treatment, and account for

22 previous determinations that claimant suffered from a mental disorder and was

23 unable to work); Jay S. v. Comm’r Soc. Sec., 2020 WL 5231025, *2 (W.D.

24 Wash. Sept. 2, 2020) (“[a]lthough SSI payments may not be paid for periods

25 earlier than the application date, this does not render the alleged onset date

26 irrelevant when charting the history and severity of plaintiff's functional

27 limitations”); Vivianlynne Q., 2020 WL 4746228 at *5; Melinda M. v. Saul,

28 2020 WL 4194987, *5 (E.D. Wash. July 20, 2020) (“limiting the review of the

1 evidence to the date of application and forward, thereby ignoring the

2 claimant's alleged onset date of disability, is inconsistent with the Regulations

3 and internal agency policy”); Joseph H. v. Saul, 2020 WL 1557297, *3 (E.D.

4 Wash. Apr. 1, 2020) (ALJ erred by giving no weight to 2015 exam that

5 predated the application because the exam nonetheless occurred after the 1990

6 alleged onset date); Michael G. C. v. Comm’r Soc. Sec., 2019 WL 6907790, *2

7 (W.D. Wash. Dec. 19, 2019) (“Although the Social Security Administration is

8 only required to include medical sources for the 12 months preceding the

9 application date in the record, the ALJ is required to evaluate all medical

10 opinions actually included in the record.”).

11 Finally, this error is not harmless. The harmless error analysis may be

12 applied where even a treating source’s opinion is disregarded without

13 comment. See Marsh, 792 F.3d at 1173. An error is harmful unless the

14 reviewing court “can confidently conclude that no reasonable ALJ, when fully

15 crediting the [evidence], could have reached a different disability

16 determination.” Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1056

17 (9th Cir. 2006). Here, Dr. Ton-That was Plaintiff’s treating physician, and he

18 appears to be the only medical source of record to opine Plaintiff was unable to

19 work. The Court cannot confidently conclude that Dr. Ton-That’s consistent,

20 repeated statements that Plaintiff could not work during the relevant period

21 would not have made a difference in the decision. Id.; Molina, 674 F.3d at

22 1115; see also Rebecca W. v. Saul, 2019 WL 7819669, at *13 (E.D. Wash.

23 Aug. 19, 2019) (error in disregarding treating source without comment harmful

24 where it was only medical source that opined claimant had physical limitations

25 that restricted her ability to use her arm for repetitive work); Janice M. v.

26 Comm’r Soc. Sec. Admin., 2018 WL 7142180, at *5 (D. Or. Oct. 16, 2018)

27 (opinions of consulting physicians cannot justify failure to address examining

28 physician).

1 ii. Dr. Poonen

2 While on parole, Plaintiff was treated by Dr. Poonen, a psychiatrist, on a

3 near monthly basis from her initial “[c]risis [i]ntervention” in July 2016, at

4 least until October 16, 2018. AR 333-337. Dr. Poonen administered Plaintiff

5 psychotropic medication, changed medication to accommodate her developing

6 condition, discussed her diagnosis, evaluated her mental health, and completed

7 notes of her treatment. See, e.g., AR 337-45.

8 In the decision, the ALJ refers to five progress notes “from the California

9 Department of Corrections” (“CDC”) ranging from April 18, 2017, to May 15,

10 2018, and provides a brief summary of the most positive findings. AR 25-26.8

11 The ALJ then stated that the medical record indicated Plaintiff’s symptoms

12 were being treated and stabilized and that there was little additional evidence

13 to support a greater RFC. AR 26. The ALJ concluded with a blanket statement

14 that the limitations set forth in the decision “give generous consideration” to

15 Plaintiff’s history of schizoaffective and bipolar disorder. AR 26.

16 After review of the record, the Court agrees with Plaintiff that this is

17 insufficient to discount Dr. Poonen’s treatment evidence.

18 First, the ALJ does not mention or acknowledge Dr. Poonen as a

19 treating source, examine whether any of the progress notes constitute an

20 opinion, or assign any relevant weight to Dr. Poonen or her findings. As

21 noted, although an ALJ need not discuss everything in the medical record, an

22 ALJ must discuss significant and probative evidence that is contrary to the

23 ALJ’s findings and explain why it has been rejected. See Robbins, 466 F.3d at

24

25 8 Earlier in the decision, at Step Two, it appears the ALJ also relied on the

CDC records in determining Plaintiff’s “paragraph B” criteria. AR 21-22. That is not

26

entirely clear, however, as at one point the ALJ discusses the psychiatric consultative

27 examination but the citation (Exhibit 8F/3-6) corresponds to the CDC list of

appointments Plaintiff had while on parole, not the examination. See AR 22, 334-37.

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1 883; Garrison, 759 F.3d at 1012-13; Lester, 81 F.3d at 832-33; Vincent, 739

2 F.2d at 1395; see also Marsh, 792 F.3d at 1173 (“an ALJ cannot in its decision

3 totally ignore a treating doctor and his or her notes”).

4 Second, although the ALJ mentioned certain records and cited some by

5 exhibit page number, it is unclear which findings the ALJ intended to refer to,

6 and by which medical provider. AR 25-26. The records are interspersed with

7 detailed findings from at least four clinical social workers, M. Gupta, A. Kohi,

8 M. Maciel, and S. Sairsingh, along with Dr. Poonen’s findings. AR 333-45.

9 Due to the combined nature of the treatment records, it is impossible to

10 determine which findings the ALJ was attempting to address, and by whom

11 those findings were made. Without an indication of the provider by name, it

12 not possible to meaningfully review the ALJ’s discussion of the CDC records

13 as they pertain to Dr. Poonen. See Lambert, 980 F.3d at 1277; Brown-Hunter,

14 806 F.3d at 492 (federal courts “demand that the agency set forth the reasoning

15 behind its decisions in a way that allows for meaningful review”); Blakes v.

16 Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (citations omitted) (“We require

17 the ALJ to build an accurate and logical bridge from the evidence to her

18 conclusions so that we may afford the claimant meaningful review of the

19 SSA’s ultimate findings.”).

20 Third, the CDC records also contain a psychiatric evaluation of Plaintiff

21 upon her admission and treatment for crisis intervention. AR 345-47. It is

22 unclear whether the evaluation was done by Dr. Poonen or a clinical social

23 worker under her supervision, but the ALJ’s decision makes no mention of it

24 and does not indicate it was considered. As this evaluation discusses significant

25 effects of Plaintiff’s symptoms that are attributable to her condition, and it is

26 relevant in understanding Plaintiff’s treatment with Dr. Poonen going forward,

27 it should have been discussed. See Robbins, 466 F.3d at 883; Garrison, 759

28 F.3d at 1012-13; Lester, 81 F.3d at 832-33; Vincent, 739 F.2d at 1395.

1 Finally, because the ALJ failed to mention Dr. Poonen or adequately

2 discuss the CDC records in a way such that the Court could meaningfully

3 assess prejudice, the Court cannot conclude the error was harmless. See

4 Brown-Hunter, 806 F.3d at 492 (if ALJ fails to specify reasoning, reviewing

5 court will be unable to meaningfully review without substituting its conclusion

6 for the ALJ’s, or speculating as to grounds for the ALJ’s conclusions; in such a

7 situation, “such error will usually not be harmless”); Marsh, 792 F.3d at 1173

8 (remanding where ALJ did not mention treating doctor’s findings in clinical

9 progress notes because court could not “confidently conclude” the error was

10 harmless).

11 As a result, the Court finds the ALJ erred in failing to provide legally

12 sufficient reasons for discounting the evidence of the treating physicians set

13 forth above and finds the errors were not harmless.

14 B. Remand is appropriate.

15 The decision whether to remand for further proceedings is within this

16 Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000)

17 (as amended). Where further proceedings would serve no useful purpose or

18 where the record has been fully developed, a court may direct an immediate

19 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004);

20 Harman, 211 F.3d at 1179 (noting that “the decision of whether to remand for

21 further proceedings turns upon the likely utility of such proceedings”). A

22 remand for further proceedings is appropriate where outstanding issues must

23 be resolved before a determination of disability can be made and it is not clear

24 from the record that the claimant is disabled. See Bunnell v. Barnhart, 336

25 F.3d 1112, 1115-16 (9th Cir. 2003).

26 Here, the Court concludes remand for further proceedings is warranted.

27 Plaintiff’s challenge to the treating physician evidence is repeated under

28 different legal theories in the Joint Stipulation, the assessment of that evidence

1 affects other interrelated issues raised, and Plaintiff alleges the record is not

2 fully developed.9 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)

3 (“Because we remand the case to the ALJ for the reasons stated, we decline to

4 reach [plaintiff’s] alternative ground for remand.”); Augustine ex rel. Ramirez

5 v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need

6 not address the other claims plaintiff raises, none of which would provide

7 plaintiff with any further relief than granted, and all of which can be addressed

8 on remand.”); see also Vaughn v. Berryhill, 242 F. Supp. 3d 998, 1010 (E.D.

9 Cal. 2017) (dispensing of exhaustive analysis of plaintiff’s remaining issues

10 because “[t]he ALJ’s . . . evaluations of [p]laintiff's [testimony] . . . are

11 inescapably linked to conclusions regarding the medical evidence”). Because it

12 is unclear, considering these issues, whether Plaintiff was in fact disabled,

13 remand here is on an “open record.” See Brown-Hunter, 806 F.3d at 495;

14 Bunnell, 336 F.3d at 1115-16. The parties may freely take up all issues raised in

15 the Joint Stipulation, and any other issues relevant to resolving Plaintiff’s claim

16 of disability, before the ALJ.

17 Accordingly, on remand, the ALJ shall reassess the treating physician

18 evidence and, if warranted upon such reassessment, reassess the medical and

19 other source opinions in conjunction with Plaintiff’s subjective complaints,

20 reassess Plaintiff’s RFC if appropriate, and proceed through the remaining

21 steps of the disability analysis if warranted to determine whether Plaintiff could

22 still perform her past work, or what other jobs if any, Plaintiff was capable of

23 performing that existed in significant numbers.

24

25

9 The Court also notes that it appears a different claimant’s records were

26

inadvertently filed here in place of a portion of Plaintiff’s records. Dkt. 16-11. The

27 omitted records pertain to Plaintiff’s hospitalizations at UCI (Dkt. 16-2 at 2). Given

the Court’s ruling, the omitted records are unnecessary to resolve this case.

28

1 IV.

2 ORDER

3 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS

4 || ORDERED that Judgment be entered reversing the decision of the

5 ||Commissioner of Social Security and remanding this matter for further

6 ||administrative proceedings consistent with this Order.

7

Dated: February 19, 2021

9 N D. EARLY

10 nited States Magistrate Judge

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