Williams-McGloster v. Berryhill

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 SHANEENA W-M, Case No.: 3:18-cv-01661-WQH (RNB)

12 Plaintiff,

REPORT AND

13 v. RECOMMENDATION REGARDING

CROSS-MOTIONS FOR SUMMARY

14 NANCY A. BERRYHILL, Acting

JUDGMENT

Commissioner of Social Security,

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Defendant. (ECF Nos. 16, 17)

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18 This Report and Recommendation is submitted to the Honorable William Q. Hayes,

19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule

20 72.1(c) of the United States District Court for the Southern District of California.

21 On July 20, 2018, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking

22 judicial review of a decision by the Commissioner of Social Security denying her

23 application for a period of disability and disability insurance benefits. (ECF No. 1.)

24 Now pending before the Court and ready for decision are the parties’ cross-motions

25 for summary judgment. For the reasons discussed hereafter, the Court RECOMMENDS

26 that plaintiff’s motion for summary judgment be GRANTED, that the Commissioner’s

27 cross-motion for summary judgment be DENIED, and that Judgment be entered reversing

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1 the decision of the Commissioner and remanding this matter for further administrative

2 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

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4 PROCEDURAL BACKGROUND

5 On October 8, 2013, plaintiff filed an application for a period of disability and

6 disability insurance benefits under Title II of the Social Security Act, alleging disability

7 beginning December 10, 2012. (Certified Administrative Record [“AR”] 198-99; see also

8 AR 72.) After her applications were denied initially and upon reconsideration (AR 89-92,

9 95-99), plaintiff requested an administrative hearing before an administrative law judge

10 (“ALJ”). (AR 101-02.) An administrative hearing was held on January 19, 2017. Plaintiff

11 was represented by counsel and testimony was taken from her, as well as from a medical

12 expert (“ME”) telephonically and a vocational expert (“VE”). (AR 33-61.)

13 As reflected in his May 3, 2017 decision, the ALJ found that plaintiff had not been

14 under a disability, as defined in the Social Security Act, at any time from her alleged onset

15 date through the date of the decision. (AR 15-26.) The ALJ’s decision became final on

16 May 22, 2018, when the Appeals Council denied plaintiff’s request for review. (AR 1-4.)

17 This timely civil action followed.

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19 SUMMARY OF THE ALJ’S FINDINGS

20 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

21 evaluation process. See 20 C.F.R. § 404.1520.1

22 At step one, the ALJ found that plaintiff had not engaged in substantial gainful

23 activity since December 10, 2012, the alleged onset date. (AR 17.)

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1 Unless otherwise indicated, all references herein to the Commissioner’s regulations

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1 At step two, the ALJ found that plaintiff had the following severe impairments: a

2 bipolar disorder; a depressive order; an anxiety disorder; and asthma. (AR 17.)2

3 At step three, the ALJ found that plaintiff did not have an impairment or combination

4 of impairments that met or medically equaled one of the impairments listed in the

5 Commissioner’s Listing of Impairments. (AR 18.)

6 Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”)

7 to perform a full range of work at all exertional levels, but with the following non-

8 exertional limitations:

9 “[S]he could understand, remember and carry out simple instructions for

simple tasks and she could tolerate few workplace changes. Additionally, she

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could occasionally have superficial interaction with others, but no teamwork,

11 and she would need to avoid pulmonary irritants, such as fumes, odors, dusts,

gases, poor ventilation, etc.” (AR 20.)

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13 For purposes of his step four determination, the ALJ adduced and accepted the VE’s

14 testimony that a hypothetical person with plaintiff’s vocational profile and RFC would not

15 be able to perform the requirements of plaintiff’s past relevant work. Accordingly, the ALJ

16 found that plaintiff was unable to perform any past relevant. (AR 25.)

17 The ALJ then proceeded to step five of the sequential evaluation process. Based on

18 the VE’s testimony that a hypothetical person with plaintiff’s vocational profile and RFC

19 could perform the requirements of occupations that existed in significant numbers in the

20 national economy (i.e., Industrial Cleaner, Mail Clerk, and Marker), the ALJ found that

21 plaintiff had not been under a disability from December 10, 2012 through the date of his

22 decision. (AR 26.)

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2 The Court notes that, in the discussion section of his step two finding, the ALJ also

27 listed plaintiff’s back disorder and irritable bowel syndrome as severe impairments. (See

AR 17.)

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1 SUMMARY OF RELEVANT MEDICAL EVIDENCE OF RECORD

2 On October 12, 2012, plaintiff was evaluated at the Camp Pendleton Mental Health

3 Outpatient Clinic. (AR 279.) She presented “to get help with [her] depression and mood

4 swings.” (AR 280.) It was noted that she had a history of depression and, upon mental

5 status examination, it further was noted that she had a labile mood, continued suicidal

6 ideation, limited judgment, poor impulse control by history, poor concentration, and

7 distractability. (Id.). It also was noted that plaintiff had skill deficits, early trauma abuse,

8 prior suicide attempts, poor self-esteem, major depression, a broken foot, impulsivity/

9 aggression/manipulation/dependence precipitated by acute disappointments,

10 embarrassments, humiliations or threat and availability of means. (AR 280-81.) Plaintiff

11 was assessed with a moderate risk of suicide and a diagnosis of post-traumatic stress

12 disorder (“PTSD”), possible bipolar disorder, and a borderline personality disorder. (AR

13 281.) While her Global Assessment of Functioning (“GAF”) was assessed at 65 that day,

14 it was noted that this was plaintiff’s last session and that she was feeling better as she was

15 going to have her baby and was trying to be with the father (who was in Pennsylvania).

16 (AR 281-82.) It also was noted that plaintiff planned on seeking psychotherapy treatment.

17 (AR 282.)

18 After returning to San Diego, plaintiff was seen at the Vista Veteran’s

19 Administration (VA”) facility on January 2, 2014, complaining of abdominal pain. (AR

20 300.) It was noted that she was crying and tearful at the time, and that she was claiming to

21 have been given the run around in getting help. (AR 405-06.) Plaintiff reported that she

22 had been the victim of a physical assault and attempted rape in September 2012, and that

23 she had left the Marine Corps in December 2012. (AR 406.) Plaintiff was noted to be

24 depressed and suicidal, and she was referred for a mental evaluation. (AR 407.)

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3 Since plaintiff’s sole claim of error relates only to her mental impairments, the Court

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1 Plaintiff had a mental evaluation on January 30, 2014. (AR 300.) The examination

2 was performed by Natalie Castriotta, PhD, under the supervision of Ann N. Nisenzon, staff

3 psychologist. (AR 400-04.) The examination notes reflect that plaintiff reported a long

4 history of sexual abuse during her childhood and sexual harassment in the military.4 She

5 also reported many symptoms of PTSD related to these traumas. She also reported

6 avoiding people and places that reminded her of trauma, as well as feeling detached from

7 others. (AR 401.) Plaintiff appeared underweight, severely isolated and “distrustful of

8 psychologist” stating she was fearful of treatment. (Id.) Upon examination, plaintiff was

9 dysthymic and labile, and was dysregulated throughout the session, fluctuating from

10 tearfulness, anger, anxiety, laughter though she was regulated by the end of the session.

11 (AR 402.) She was diagnosed with depressive disorder and possible PTSD, major

12 depression, and substance abuse disorder in full remission. (Id.)

13 Plaintiff returned for a psychology consultation on February 25, 2014 and attended

14 the military sexual trauma/interpersonal therapy (MST/IPT) orientation meeting on that

15 date. (AR 299, 367.) The examination notes for that visit reflect that plaintiff met the

16 criteria for PTSD, severe depression, and bipolar disorder. (AR 369-71.) On the Sheehan

17 Disability Scale, plaintiff was assessed as being “very severely impaired” in Work/School,

18 in Social Life/Leisure Activities, and in Family Life/Home Responsibilities. (AR 371-72.)

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4 Specifically, plaintiff reported that she had been molested repeatedly as a child by

23 one of her brothers, a cousin, and various other family members; that her adopted mother

had been verbally abusive and would deny any of plaintiff’s claims of sexual abuse; that

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her mother put her on the streets at age 16 and she was forced into prostitution from age

25 16-18; that she joined the military to get away from her abusive family; that she had been

sexually harassed and threatened on at least five separate occasions by higher ranking

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officers in the military; that, during the brief period of time from 2010 to 2012 when she

27 was married, her ex-husband had been physically abusive and she had filed domestic

violence charges against him. (AR 401.)

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1 On March 3, 2014, a State agency physician found on initial evaluation that there

2 was insufficient medical evidence in the record to determine whether plaintiff had a

3 medically determinable impairment.5 The report noted that there was no opinion evidence

4 from any source and recommended a consultative examination in order to establish the

5 current severity of plaintiff’s impairment(s). (See AR 68-70.)6

6 When plaintiff again was seen by a treating source on April 9, 2014, she was

7 diagnosed with adult sexual abuse, military sexual trauma, and a depressive disorder. (AR

8 299.)

9 On June 19, 2014, it was noted in plaintiff’s VA medical records that, after plaintiff

10 attended the MST/IPT orientation meeting on February 25, 2014, she had been scheduled

11 for an intake appointment in March 2014; however, she had been a no-show to her

12 scheduled appointment. The nurse provider called plaintiff on this date to discuss

13 treatment. In the phone call, plaintiff reported that she was doing, “ok, better but still I

14 need some treatment.” Plaintiff maintained that she had not followed up due to finances;

15 however, she reported that she was interested in scheduling the intake evaluation. An order

16 was then submitted for plaintiff to be rescheduled for the first available intake appointment

17 with any MST/IPT provider. (AR 517.) As of that date, plaintiff’s medical records

18 reflected a diagnosis of “major depressive affective disorder, recurrent episode and

19 moderate degree.” (AR 298.)

20 The MST/IPT intake evaluation was rescheduled for July 16, 2014; however,

21 plaintiff again was a no-show/no-call. (AR 516.)

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5 It appears that the medical evidence reviewed by this physician did not include the

25 February 25, 2014 examination notes. (See AR 66-67.)

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6 It appears from the Administrative Record that a consultative physical examination

27 for plaintiff was scheduled to be held on September 6, 2014, but plaintiff failed to attend.

(AR 296.) It does not appear from the record that a consultative mental examination ever

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1 On July 29, 2014, another State agency physician in his reconsideration

2 evaluation diagnosed plaintiff as having severe medically determinable mental

3 impairments, namely an affective disorder and an anxiety disorder characterized by

4 “recurrent and intrusive recollections of a traumatic experience which [were] a source

5 of marked distress.” (AR 80.) The physician assessed that plaintiff was mildly

6 impaired in activities of daily living, and moderately impaired in maintaining social

7 functioning and in maintaining concentration, persistence or pace. (Id.) He also noted

8 that plaintiff appeared to be suffering from PTSD and a mood disorder, and that there

9 might be personality disorder traits present. (AR 81.) The same evaluation report

10 noted that there was insufficient evidence to evaluate the claim (id.), and that still there

11 was no opinion evidence from any source (AR 84).

12 It appears from plaintiff’s VA medical records that, by April 22, 2015, plaintiff was

13 found to have a 90% service-connected disability, including a major depressive disorder

14 disability rating of 30%.7 (AR 511.) At a medical appointment on that date, plaintiff

15 requested to start treatment services. She reported complaints of symptoms related to

16 depression and hopelessness since transitioning out of the military. She stated that she had

17 started on medications in the past, but they caused side effects. However, plaintiff also

18 reported that the previous year she had started working out and this helped with symptoms,

19 but she was not currently able to work out due to issues at the gym. She reported her recent

20 stressors as relationship issues, losing her housing and financial stressors. (Id.) The

21 examination notes reflect that plaintiff presented with a depressed mood, anhedonia,

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7 A disability rating of 30% for a mental disorder signifies “[o]ccupational and social

25 impairment with occasional decrease in work efficiency and intermittent periods of

inability to perform occupational tasks (although generally functioning satisfactorily, with

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routine behavior, self-care, and conversation normal), due to such symptoms as: depressed

27 mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep

impairment, mild memory loss (such as forgetting names, directions, recent events).” 38

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1 helplessness, and hopelessness. (Id.) It was noted during the mental status examination

2 that plaintiff had a pleasant demeanor, was alert and oriented in all spheres, and was

3 cooperative. Her speech was of a normal rate, rhythm and tone, and her thought process

4 was linear and logical with no evidence of any flight of ideas, tangentiality or

5 circumstantiality. However, her mood was described as sad and her affect was tearful and

6 tense. (AR 512-13.) Plaintiff was diagnosed as suffering from a depressive disorder and

7 she was given a referral to psychotherapy treatment. (AR 514.)

8 On October 27, 2015, when plaintiff was seen for follow-up at the VA

9 Medical Center, she reported, “I'm just depressed, but I can deal with it.” (AR

10 495.) The examination notes reflect that plaintiff currently was attending school

11 full-time at Mira Costa College for kinesiology; and that she had been referred by

12 her primary care physician to assist with mental health services and to assess for

13 well-being. The notes also reflect that plaintiff had been seen in April 2015 and

14 given a prescription for Lorazepam as needed; however, plaintiff had taken this

15 medication only twice and then stopped due to its ineffectiveness and making her

16 drowsy. (Id.) Plaintiff reported that she had been kicked out of various apartments

17 and gyms because people did not like her; and that she had been easily distracted

18 as of late. (AR 496.) Plaintiff also reported current activities as working on poetry,

19 writing songs and working out two times per day for one hour each time; that she

20 was getting good grades in her homework; and that she was being paid to do

21 surveys for a company. (Id.) It was noted that plaintiff was neatly groomed,

22 voluble and that, while guarded at times, she was animated and pleasant upon

23 approach. (Id.)

24 Plaintiff’s medical records further reflect that, as of July 24, 2016, plaintiff was

25 waiting to be treated at the VA for mental health issues. She reported that she was “unable

26 to work, or function much,” but she had to take care of her daughter and wanted to start the

27 therapy process. (AR 488.)

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1 At the administrative hearing held on January 18, 2017, Dr. C. Richard Johnson

2 appeared telephonically as the ME. Dr. Johnson initially testified:

3 “The record is really sparse for psychiatric conditions. At 1F we have

a diagnosis of post-traumatic stress disorder, alcohol abuse, borderline

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personality disorder, and a GAF score of 65. At 4F we have a diagnosis of

5 depressive disorder, not otherwise specified but rule out post-traumatic stress

disorder, rule out major depressive disorder, and rule out one other condition

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in full remission.” (AR 44.)

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8 Dr. Johnson then testified that “on the basis of this long record, she does not meet a

9 listing level impairment.” (AR 45.) In response to the ALJ’s inquiry regarding the severity

10 of plaintiff’s limitations, Dr. Johnson testified that he felt plaintiff would have no or only

11 mild limitations in the ability to learn, recall, and use information to perform work; that

12 plaintiff would have only mild limitations in the ability to interact with others; that plaintiff

13 would have only mild limitation in the ability to concentrate, persist or pace; and that

14 plaintiff would have mild to moderate limitations in the ability to adapt to manage oneself

15 such as regulating emotions, controlling behavior and maintaining wellbeing in a work

16 setting. (AR 45-46.) Dr. Johnson further opined that plaintiff would be limited to

17 understanding, remembering, and carrying out simple instructions or simple tasks, with

18 mild limitation in the ability to interact with others in the workplace, and moderate

19 limitation with respect to workplace changes. (AR 46-47.)

20 The ALJ then asked plaintiff’s counsel, Mr. Shore, if he had any questions. (AR

21 47.) Plaintiff’s counsel proceeded to direct Dr. Johnson’s attention to a page from

22 plaintiff’s medical records relating to plaintiff’s January 30, 2014 psychotherapy

23 appointment (i.e., AR 400). Plaintiff’s counsel noted that plaintiff had discussed multiple

24 PTSD symptoms and related sexual traumas, which included both childhood abuse and

25 sexual harassment in the military; and that plaintiff had talked about nightmares, intrusive

26 memories, and reexperiencing symptoms. When plaintiff’s counsel asked if Dr. Johnson

27 had considered that information, Dr. Johnson responded, “I did not see that information.”

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1 (AR 47-48.) However, after reviewing the information on AR 400, Dr. Johnson

2 acknowledged:

3 “It provides a different, certainly a different picture than I'd seen in earlier

reports I had commented on and I would think that her problems would rise

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to more moderate limitations.” (AR 48.)

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6 Plaintiff’s counsel then pointed out that, on the next page, it mentioned that

7 plaintiff’s mother had been verbally abusive and would deny her claims of sexual abuse

8 that she apparently had reported to her mother; and that plaintiff’s mother had put her on

9 the streets at age 16 and forced into prostitution from age 16 to 18. When plaintiff’s counsel

10 then asked Dr. Johnson whether those would be the type of events that would result in

11 ongoing symptoms associated with PTSD, Dr. Johnson responded in the affirmative. (AR

12 50.)

13 Plaintiff’s counsel then directed Dr. Johnson’s attentions to two pages from the

14 medical records relating to plaintiff’s February 25, 2014 psychology consultation (i.e., AR

15 370 and 372). Plaintiff’s counsel noted that, on page [AR 370], “it says reported thoughts

16 of acting violently because she had had thoughts of hurting herself. And on page [AR 372],

17 it says that scores are significant on the post-traumatic growth inventory, trauma-related

18 guilt inventory, and trauma-related disgust questionnaire.” When asked to comment on

19 that, Dr. Johnson responded:

20 “Yes, I did not see that, and I think that would certainly change my evaluation

to probably marked difficulties with concentration, persistence, and pace, and

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social functioning. (AR 51.)

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23 The ALJ confirmed with Dr. Johnson that his opinion now was marked limitation in

24 the ability to interact with others and marked limitation in the ability to concentrate, persist,

25 or maintain pace. (See AR 52.) When the ALJ then asked which was the most prevalent

26 diagnosis, Dr. Johnson responded that the post-traumatic stress would be primary and that

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1 the condition would support an onset date in the vicinity of December 2012. (Id.) The

2 ALJ inquired no further.8

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4 PLAINTIFF’S SOLE CLAIM OF ERROR

5 The sole claim of error raised in plaintiff’s summary judgment motion is that the

6 ALJ failed to properly assess the opinion of the Agency’s medical advisor, Dr. Johnson.

7 In support of this claim, plaintiff contends that the ALJ failed in his duty to develop the

8 record and failed to articulate legitimate rationale for rejecting Dr. Johnson’s opinion. (See

9 ECF No. 16-1 at 13-18.)9

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11 STANDARD OF REVIEW

12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

13 determine whether the Commissioner’s findings are supported by substantial evidence and

14 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846

15 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a

16 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of

17 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is

18 “such relevant evidence as a reasonable mind might accept as adequate to support a

19 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole

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8 The Court notes that, when the ALJ later included Dr. Johnson’s marked limitations

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in one hypothetical to the VE, including a limitation of being off task upwards of 15

23 minutes each hour, the VE responded that no work would be available. (See AR 60.)

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9 In her cross-motion, the Commissioner framed the issue in dispute differently,

25 arguing that the ALJ properly found that plaintiff was not disabled under the Listings. (See

ECF No. 17-1 at 4-10.) However, the Court’s findings hereafter that the ALJ failed to

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provide adequate reasons for rejecting Dr. Johnson’s opinion and failed in his duty to

27 develop the record and the Court’s conclusion that remand is warranted for further

development of the record render it unnecessary to address the Listings issue raised by the

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1 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

2 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,

3 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

4 (9th Cir. 1984).

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6 DISCUSSION

7 A. The ALJ failed to properly assess the opinion of Dr. Johnson, the ME.

8 In Social Security cases, courts give varying degrees of deference to medical

9 opinions depending on the type of physician who provided them, namely “treating

10 physicians,” “examining physicians,” and “nonexamining physicians.” Garrison v. Colvin,

11 759 F.3d 995, 1012 (9th Cir. 2014). A treating physician’s opinion is generally given the

12 most weight. See 20 C.F.R. § 404.1527(c)(2); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.

13 2007); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). An examining, but non-

14 treating physician’s opinion is entitled to less weight than a treating physician’s, but more

15 weight than a nonexamining physician’s opinion. Garrison, 759 F.3d at 1012. The weight

16 that may be afforded to non-examining physicians depends “on the degree to which they

17 provide supporting explanations for their opinions.” Ryan v. Comm’r of Soc. Sec., 528

18 F.3d 1194, 1201 (9th Cir. 2008).

19 An ALJ may reject a nonexamining physician’s opinion “by reference to specific

20 evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998);

21 see also Davis v. Astrue, 444 F. App’x 151, 152-53 (9th Cir. 2011) (reversing where ALJ

22 failed to provide legally adequate reasons for rejecting opinion of the ME).

23 Here, after acknowledging that Dr. Johnson, the ME, had assessed inter alia a

24 marked limitation in interacting with others and marked difficulties in concentrating,

25 persisting, or maintaining pace, the ALJ stated:

26 “[L]ittle weight is given to Dr. Johnson’s opinion, based on the fact that the

VA report was a one-time examination; the medical expert’s inconsistent

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review of the record; and the claimant’s subjective complaints, regarding the

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1 longitudinal record and the claimant’s failure to follow-through with

treatment does not support the severity of these limitations.” (AR 23.)

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As a preliminary matter, the Court concurs with plaintiff that it was disingenuous

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for the ALJ to act at the hearing as if he accepted Dr. Johnson’s changed opinion without

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inquiring further of Dr. Johnson about any perceived discrepancies. In any event, the Court

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finds that none of the ALJ’s reasons for according little weight to Dr. Johnson’s opinion

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regarding the severity of plaintiff’s limitations was legally adequate.

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First, contrary to the ALJ’s characterization, the pages to which plaintiff’s counsel

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directed Dr. Johnson’s attention and which caused Dr. Johnson to change his initial

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assessment were from two separate examinations--plaintiff’s January 30, 2014

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psychotherapy appointment and plaintiff’s February 25, 2014 psychology consultation.

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Moreover, plaintiff’s long history of sexual abuse and harassment, betrayal, and traumatic

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experiences was well documented throughout her medical records. (See. e.g., AR 279-82,

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400-04, 405-07.)

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Second, it is unclear what the ALJ meant when he cited Dr. Johnson’s “inconsistent

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review of the record.” Dr. Johnson changed his opinion regarding the severity of plaintiff’s

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limitations after plaintiff’s counsel called Dr. Johnson’s attention to particular information

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in plaintiff’s medical records that Dr. Johnson conceded he had overlooked when arriving

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at his initial opinion. Thus, this is not an instance of a physician having inconsistent

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opinions. Further, the mere fact that Dr. Johnson overlooked certain parts of plaintiff’s

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medical records in his initial review of the file does not undermine Dr. Johnson’s ultimate

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opinion insofar as it was based on information in plaintiff’s medical records.

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Third, it is unclear what the ALJ meant by his reference to plaintiff’s “subjective

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complaints, regarding the longitudinal record.” The Court is mindful of Ninth Circuit

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authority for the proposition that an ALJ may reject a medical opinion if it is based to a

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large extent on a claimant’s self-reports that have been properly discounted as incredible.

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See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ did make

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1 an adverse credibility determination with respect to plaintiff’s allegations regarding her

2 symptoms and functional limitations and did purport to list reasons in support of that

3 determination. (See AR 23-24.) However, Dr. Johnson did not base his changed opinion

4 primarily on plaintiff’s allegations of her symptoms and functional limitations, but rather

5 he based it primarily on plaintiff’s long history of sexual abuse and harassment, betrayal,

6 and traumatic experiences and on the clinical scores on various tests assessed at plaintiff’s

7 February 25, 2014 psychology consultation. If the ALJ believed that Dr. Johnson was

8 basing his changed opinion primarily on self-reports by plaintiff that were not credible, he

9 should have inquired further of Dr. Johnson to confirm that.

10 Fourth, while the ALJ cited plaintiff’s “failure to follow-through with treatment,” he

11 never inquired of plaintiff regarding whether she had any reason(s) for not following

12 through with respect to the various missed appointments. Moreover, this purported reason

13 goes more to the issue of plaintiff’s credibility than to the issue of whether the ALJ properly

14 considered Dr. Johnson’s opinion, and the Ninth Circuit has cautioned that a claimant’s

15 lack of compliance with her mental health treatment should not be a basis for an ALJ’s

16 adverse finding against her when her lack of compliance is attributable to her mental

17 illness. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[I]t is a questionable

18 practice to chastise one with a mental impairment for the exercise of poor judgment in

19 seeking rehabilitation.”).

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21 B. The ALJ failed in his duty to develop the record.

22 In Social Security cases, the ALJ has a special, independent duty to develop the

23 record fully and fairly and to assure that the claimant’s interests are considered, and this

24 special duty exists even when the claimant is represented by counsel. See, e.g., Garcia v.

25 Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014); Tonapetyan v. Halter, 242 F.3d

26 1144, 1150 (9th Cir.2001); Smolen, 80 F.3d at 1288; Brown v. Heckler, 713 F.2d 441, 443

27 (9th Cir.1983). “The ALJ must develop the record when there is ambiguous evidence or

28 when the record is inadequate to allow for proper evaluation of the evidence.” McLeod v.

1 Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d 453,

2 459-60 (9th Cir. 2001)). Moreover, “[a] specific finding of ambiguity or inadequacy of the

3 record is not necessary to trigger this duty to inquire, where the record establishes

4 ambiguity or inadequacy.”). McLeod, 640 F.3d at 885. The duty to develop the record is

5 heightened when the claimant is unrepresented or “is mentally ill and thus unable to

6 protect her own interests.” Tonapetyan, 242 F.3d at 1150 (emphasis added).

7 Here, as noted above, at step two of the sequential evaluation process, the ALJ

8 proceeded to find, based on the medical evidence of record, that plaintiff inter alia had

9 severe mental impairments (i.e., a bipolar disorder, a depressive disorder, and an anxiety

10 disorder). (See AR 17.) Under the Commissioner’s regulations, an impairment is severe

11 only if it significantly limits the claimant’s physical or mental ability to do basic work

12 activities. See 20 C.F.R. § 405.1520(c) (emphasis added). Basic work activities are

13 “abilities and aptitudes necessary to do most jobs,” including mental activities such as

14 understanding, carrying out, and remembering simple instructions; use of judgment;

15 responding appropriately to supervision, co-workers, and usual work situations; and

16 dealing with changes in a routine work setting. See Social Security Ruling (“SSR”)10 85-

17 28.

18 The medical evidence before the ALJ did not include an opinion from any treating

19 or examining physician regarding plaintiff’s work-related limitations due to her severe

20 mental impairments or an assessment of plaintiff’s mental RFC. While the ordering of a

21 consultative examination is discretionary under the Commissioner’s regulations (see 20

22 C.F.R. § 404.1517), here the State agency physician specifically noted in his March 3, 2014

23 initial evaluation that there was no opinion evidence from any source and he specifically

24 recommended a consultative examination in order to establish the current severity of

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27 10 Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 F.2d 1273,

1275 n.1 (9th Cir. 1990).

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1 plaintiff’s impairment(s). (See AR 68-70.) Subsequently, another State agency physician

2 specifically noted in his July 29, 2014 reconsideration evaluation that there was

3 insufficient evidence to evaluate the claim, and that still there was no opinion evidence

4 from any source. (See AR81, 84.) While plaintiff subsequently was scheduled for a

5 consultative physical examination (see AR 296), it does not appear from the

6 Administrative Record that she ever was scheduled for a consultative mental

7 examination. The Court finds that the ALJ’s failure to either follow up with plaintiff’s

8 mental health treating doctors or order a consultative mental examination in this instance

9 (a) constituted a violation of the ALJ’s special duty to fully and fairly develop the record,

10 and (b) resulted in a decision that was not supported by substantial evidence. See, e.g.,

11 Molina v. Berryhill, 2018 WL 6421287, at *4 (E.D. Cal. Dec. 6, 2018) (holding that ALJ’s

12 RFC determination was not supported by substantial evidence when ALJ made her own

13 evaluation of the functional limitations caused by the claimant’s diagnosed impairments

14 without further developing the record through a consultative examination); de Lopez v.

15 Astrue, 643 F. Supp. 2d 1178, 1184 (C.D. Cal. 2009) (holding that ALJ failed in his duty

16 to fully and fairly develop the record where the administrative record did not contain any

17 opinion by a treating or examining physician regarding the claimant’s RFC); Mendoza v.

18 Barnhart, 436 F. Supp. 2d 1110, 1116 (C.D. Cal. 2006) (same); see also Banks v. Barnhart,

19 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“[T]he ALJ’s RFC determination or finding

20 must be supported by medical evidence, particularly the opinion of a treating or an

21 examining physician.”).

22

23 CONCLUSION AND RECOMMENDATION

24 The law is well established that the decision whether to remand for further

25 proceedings or simply to award benefits is within the discretion of the Court. See, e.g.,

26 Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599,

27 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for

28 further proceedings is warranted where additional administrative proceedings could

1 |/remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir.

2 || 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where

3 useful purpose would be served by further administrative proceedings, Kornock v.

4 || Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed,

5 || Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would

6 unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled, Bilby

7 || v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).

8 Here, the Court has found that the record has not been fully developed with respect

9 ||to the functional limitations resulting from plaintiff's severe medically determinable

10 || mental impairments.

1] This Court therefore RECOMMENDS that plaintiff's motion for summary

12 judgment be GRANTED, that the Commissioner’s cross-motion for summary judgment

13 ||be DENIED, and that Judgment be entered reversing the decision of the Commissioner

14 remanding this matter for further administrative proceedings pursuant to sentence four

15 42 U.S.C. § 405(g).

16 Any party having objections to the Court’s proposed findings and recommendations

17 ||shall serve and file specific written objections within 14 days after being served with a

18 ||copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections

19 ||should be captioned “Objections to Report and Recommendation.” A party may respond

20 ||to the other party’s objections within 14 days after being served with a copy of the

21 objections. See id.

22 IT IS SO ORDERED.

23 We

24 Dated: September 4, 2019 i]

25 ROBERTN.BLOCK

26 United States Magistrate Judge

27

28