The opinion
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2
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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MICKINZIE T.,
7 Case No. 20-cv-06932-DMR
Plaintiff,
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v. ORDER RE MOTION FOR SUMMARY
9 JUDGMENT AND MOTION FOR
KILOLO KIJAKAZI, REMAND
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Defendant. Re: Dkt. Nos. 21, 26
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12 Plaintiff Mickinzie T. moves for summary judgment to reverse the Commissioner of the
13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which
14 found Plaintiff not disabled and therefore denied her application for benefits under Titles II and
15 XVI of the Social Security Act, 42 U.S.C. § 401 et seq. [Docket No. 21 (“Pltf. Mot.”), 27
16 (“Reply”).] Plaintiff’s requested remedy is a remand for award of benefits. See Pltf. Mot. at 13,
17 24-25; Reply at 14. The Commissioner concedes that the final administrative decision must be
18 reversed, but moves the court to remand for further proceedings, not for an award of benefits.
19 [Docket No. 26 (“Def. Mot.”) at 1-2.] For the reasons stated below, the court GRANTS Plaintiff’s
20 motion for summary judgment and request for a remand for award of benefits and DENIES the
21 Commissioner’s motion for a remand for further proceedings.
22 I. PROCEDURAL HISTORY
23 Plaintiff filed an application for Social Security Disabled Adult Child and Supplemental
24 Security Income benefits on January 9, 2017, alleging disability beginning February 29, 2012.
25 Administrative Record (“A.R.”) 78, 100-01, 288-313. The application was initially denied on
26 June 21, 2017 and again on reconsideration on September 1, 2017. A.R. 176-87, 189-96. An
27 Administrative Law Judge (“ALJ”) held a hearing on June 6, 2019 and issued an unfavorable
1 following severe impairments: degenerative disc disease, pseudotumor cerebri, depression, bipolar
2 disorder, and anxiety. A.R. 18. The ALJ found that Plaintiff retains the following residual
3 functional capacity (“RFC”):
4 [T]o perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can occasionally stoop, kneel, crouch, crawl,
5 and climb ramps and stairs, and never climb ladders, ropes, or
scaffolds. She must avoid jobs that require good peripheral vision.
6 She can perform simple, routine tasks, with few changes in the work
routine. She can do work that is task-oriented but not performed at
7 production pace, and can tolerate occasional public contact.
8 A.R. 19-20.
9 Relying on the opinion of a vocational expert (“V.E.”) who testified that an individual with
10 such an RFC could not perform Plaintiff’s past work but could perform other jobs existing in
11 significant numbers in the national economy, including housekeeping cleaner, photocopy machine
12 operator, and packing line worker, the ALJ concluded that Plaintiff is not disabled. A.R. 25-27,
13 67-68.
14 After the Appeals Council denied review, Plaintiff sought review in this court pursuant to
15 42 U.S.C. § 405(g). In her motion for summary judgment, Plaintiff raised several grounds for
16 reversal of the ALJ’s decision, including that the ALJ erred in her evaluation of the medical
17 opinions of the state agency non-examining psychological consultants, Dr. Borton and Dr. Morris.
18 See Pltf. Mot. at 10-13. Plaintiff requested the court remand for an immediate award of benefits.
19 See Pltf. Mot. at 13, 24-25. In response, the Commissioner filed a motion for remand, stating that
20 the parties agreed that the ALJ erred in her assessment of the state agency psychologists’ opinions,
21 and therefore remand was warranted, but the parties could not stipulate to the appropriate type of
22 remand. Def. Mot. at 1-2. Plaintiff maintains that the remand should be for an immediate award
23 of benefits, while the Commissioner argues the remand should be for further proceedings. Reply
24 at 14; Def. Mot. at 1-2.1
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1 Because the parties agree that remand is warranted based on the ALJ’s error in evaluating the
1 II. ISSUES FOR REVIEW
2 1. Whether the ALJ’s error in assessing the medical opinions of Dr. Borton and Dr.
Morris warrants remand for an immediate award of benefits or for further
3 proceedings.
4 III. STANDARD OF REVIEW
5 Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the
6 Commissioner denying a claimant disability benefits. “This court may set aside the
7 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal
8 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180
9 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the
10 record that could lead a reasonable mind to accept a conclusion regarding disability status. See
11 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla, but less than a
12 preponderance.” Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal quotation marks and
13 citation omitted). When performing this analysis, the court must “consider the entire record as a
14 whole and may not affirm simply by isolating a specific quantum of supporting evidence.”
15 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation marks and
16 citation omitted).
17 If the evidence reasonably could support two conclusions, the court “may not substitute its
18 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112
19 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s
20 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was
21 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d
22 1035, 1038 (9th Cir. 2008) (internal quotation marks and citations omitted).
23 IV. DISCUSSION
24 As noted above, the parties agree that the ALJ erred in assessing the medical opinions of
25 Dr. Borton and Dr. Morris, and that this error warrants remand. See Def. Mot. at 1-2; Reply at 1.
26 Accordingly, the only issue remaining is the type of remand. Plaintiff argues that a remand for
27 immediate award of benefits is appropriate, while the Commissioner argues that the case should be
1 agrees with Plaintiff that the proper remedy is a remand for immediate award of benefits.
2 A. Legal Standard
3 A court may remand a disability case for further proceedings “if enhancement of the record
4 would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citation omitted). It
5 may only remand for benefits, on the other hand, “where the record has been fully developed and
6 further administrative proceedings would serve no useful purpose.” Id. (citations omitted). In
7 determining whether to remand for benefits, the Ninth Circuit has devised a “three-part credit-as-
8 true standard.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Each part of the standard
9 must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award
10 benefits:
11 (1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
12 provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
13 discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand.
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15 Id. (citations omitted). A court is required to remand for further development of a disability case
16 when, “even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record
17 as a whole creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021.
18 B. Analysis
19 Dr. Borton and Dr. Morris were the state agency psychologists who reviewed Plaintiff’s
20 application for benefits at the initial and reconsideration levels. See A.R. 88-96, 136-42. Both
21 opined that Plaintiff has moderate limitations in all four major categories of intellectual
22 functioning. A.R. 88, 136. In assessing Plaintiff’s residual functional capacity, both psychologists
23 opined that Plaintiff is not significantly limited in her ability to understand, remember, and carry
24 out very short and simple instructions, but is moderately limited in her ability to understand,
25 remember, and carry out detailed instructions. A.R. 93, 140-41. They also opined that Plaintiff is
26 moderately limited in her abilities to maintain attention and concentration for extended periods,
27 perform activities within a schedule, perform at a consistent pace without an unreasonable number
1 Asked to explain these limitations in narrative form, the psychologists opined that Plaintiff is able
2 to “understand, remember, and carry out” and “maintain [concentration, persistence, and pace] to
3 sustain” “simple, unskilled 1-2 step tasks over an 8/hr workday, 40 hr workweek.” A.R. 93, 140-
4 41. Dr. Borton and Dr. Morris also explained that Plaintiff should be limited to occasional contact
5 with the general public. A.R. 94, 141.
6 In her decision, the ALJ gave “great weight” to Dr. Borton’s and Dr. Morris’s opinions
7 that Plaintiff “could perform simple, unskilled, 1 to 2 step tasks, and have occasional public
8 contact.” A.R. 24. The ALJ found these opinions “largely consistent with conservative mental
9 health treatment notes and consultative findings, and supported by consultative examination
10 findings, regularly normal mental health examinations, and numerous activities of daily living.”
11 A.R. 24. However, despite giving these opinions great weight, the ALJ did not incorporate the
12 state agency psychologists’ limitation to “1 to 2 step tasks” into Plaintiff’s RFC. See A.R. 19-20.
13 Applying these facts to the three-part credit-as-true standard, the parties agree that the ALJ
14 erred in failing to provide legally sufficient reasons for rejecting the state agency psychologists’
15 limitation to one to two step tasks. See Def. Mot. at 1-2; Reply at 1. Therefore, the second part of
16 the credit-as-true standard is satisfied. See Garrison, 759 F.3d at 1020. Plaintiff argues, and the
17 Commissioner does not dispute, that the V.E.’s testimony at the hearing established that if the
18 limitation to one to two step tasks was added to Plaintiff’s RFC, then she would not be able to
19 perform any jobs existing in significant numbers in the national economy. See Pltf. Mot. at 13, 25;
20 A.R. 68-69. The third part of the credit-as-true standard is therefore also satisfied. See Garrison,
21 759 F.3d at 1020. The parties’ dispute, therefore, centers on the first part of the credit-as-true
22 standard: whether “the record has been fully developed and further administrative proceedings
23 would serve no useful purpose.” Garrison, 759 F.3d at 1020. Plaintiff argues that this part is
24 satisfied as well, but the Commissioner disagrees. Reply at 1, 14; Def. Mot. at 3-5.
25 In arguing that further proceedings would be useful, the Commissioner primarily argues
26 that the ALJ also gave “great weight” to four other medical opinions that did not impose a
27 limitation to one to two step tasks, thereby creating a conflict that needs to be resolved on remand.
1 consists solely of vague generalized statements about Plaintiff’s abilities without any detailed
2 assessment of Plaintiff’s limitations in the various categories of mental functioning. See Def. Mot.
3 at 4; A.R. 23, 2475. This opinion does not specify the complexity of tasks Plaintiff is capable of
4 performing on a consistent basis and is too vague to create a conflict with the state agency
5 psychologists’ specific limitation to one to two step tasks. See A.R. 93, 140-41, 2475. The other
6 three medical opinions are consultative examinations that found Plaintiff was able to understand,
7 remember, and carry out “simple” tasks. See Def. Mot. at 4-5; A.R. 23-24, 1086, 2392, 2511. But
8 this is perfectly consistent with the opinions of the state agency psychologists, who also found that
9 Plaintiff is not significantly impaired in her ability to understand, remember, and carry out simple
10 tasks. A.R. 93, 140-41. The only difference is that, in their more detailed narratives, Dr. Borton
11 and Dr. Morris specified exactly how “simple” the tasks must be for Plaintiff to be able to
12 understand, remember, and carry them out on a sustained basis: one to two steps. See A.R. 93,
13 140-41. While it is true that including this specification makes the state agency psychologists’
14 opinions more restrictive, to the extent there is any actual conflict between this specific limitation
15 and the other medical opinions, the ALJ resolved this conflict by expressly noting the more
16 specific limitation, finding the more specific limitation consistent with and supported by the
17 record, and giving the more specific limitation “great weight.” See A.R. 24.
18 Put another way, the Commissioner argues for a remand so the ALJ can “address [the state
19 agency psychologists’] opinions and explain what limitations she found supported and why.” Def.
20 Mot. at 3-4. But that work has already been done. The ALJ already addressed those opinions and,
21 even after consideration of the other persuasive opinions in the record, specifically found that the
22 state agency psychologists’ limitation to one to two step tasks is consistent with and supported by
23 the record and is worthy of great weight. See A.R. 23-24.2
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2 The court rejects the Commissioner’s claim that the state agency psychologists’ opinions are
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unclear because they do not note the one to two step task limitation in the sections of their
opinions assessing whether Plaintiff’s impairments equal a listed impairment. See Def. Mot. at 3-
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4; A.R. 88, 137. A psychiatric listings assessment is a less detailed assessment than a psychiatric
RFC assessment, and the limitation to one to two step tasks is clearly present in the more detailed
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RFC assessments. See Social Security Ruling 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2,
1 The only thing further proceedings would allow would be an opportunity for the ALJ to
2 || change her original determination and find reasons not to give the one to two step task limitation
3 || great weight, in order to still find Plaintiff disabled. This is exactly the sort of “mulligan” that the
4 || Ninth Circuit has held to not be a valid reason for further proceedings. See Garrison, 759 F.3d at
5 1021 (“Although the Commissioner argues that further proceedings would serve the ‘useful
6 || purpose’ of allowing the ALJ to revisit the medical opinions and testimony that she rejected for
7 || legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose the
8 argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a
9 || remand for a ‘useful purpose’ under the first part of credit-as-true analysis.”) (citations omitted).?
10 Accordingly, the court finds that the credit-as-true standard is satisfied. The
11 Commissioner does not point to any specific evidence in the record that creates a “serious doubt”
12 that Plaintiff is disabled, besides the alleged conflicts in the record that the court has already found
13 insufficient to warrant further proceedings. See Def. Mot. at 8; Garrison, 759 F.3d at 1021.
14 || Remand for an immediate award of benefits is therefore warranted.
2 15 || Vv. CONCLUSION
16 For the foregoing reasons, the court grants Plaintiff's motion for summary judgment, denies
3 17 || the Commissioner’s motion for remand for further proceedings, and remands this case for an
18 || immediate award of benefits.
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20 IT IS SO ORDERED.
21 Dated: January 5, 2022 Dye —
22 Donna M. Ryu
23 United States Magistrate Judge
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26 3 The court also rejects the Commissioner's brief argument that Plaintiffs ability to do some work
07 during part of the relevant period warrants further proceedings. See Def Mot. at 7. The □
Commissioner concedes that this work did not rise to the level of substantial gainful activity, see
28 a AR. and so there is no conflict between this limited work and the conclusion that Plaintiff