Mcanally v. Berryhill

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 Sean Michael MCANALLY, Case No.: 3:18-cv-02272-GPC-RNB

12 Plaintiff,

ORDER ADOPTING REPORT AND

13 v. RECOMMENDATION; GRANTING

PLAINTIFF’S MOTION FOR

14 Nancy A. BERRYHILL, Acting

SUMMARY JUDGMENT; AND

Commissioner of Social Security,

15 DENYING DEFENDANT’S CROSS–

Defendant. MOTION FOR SUMMARY

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JUDGMENT

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[ECF Nos. 12, 15, 20.]

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On September 28, 2018, Plaintiff Sean Michael Mcanally (“Plaintiff”) filed this

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action seeking judicial review of the Commissioner of Social Security’s final decision

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denying Plaintiff’s application for disability insurance benefits. (ECF No. 1.) The

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Administrative Law Judge (“ALJ”) below found Plaintiff was not disabled at Step 5 of

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the five-step sequential evaluation. (Administrative Record (“AR”) at 61–79.) Plaintiff

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now challenges that decision for lack of substantial evidence. (ECF No. 12.)

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Based on the facts and applicable law, the Court REMANDS this matter to the

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ALJ for further administrative proceedings.

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I. Background

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1 A. Procedural Background

2 On July 7, 2014, Plaintiff filed an application for disability insurance benefits

3 under the Social Security Act (“SSA”), alleging a disability beginning May 17, 2013.

4 (AR 257–58.) On February 20, 2015, Plaintiff’s claims were denied. (AR 193–96). On

5 May 29, 2015, Plaintiff’s claims were again denied upon reconsideration. (AR 200–05.)

6 On June 12, 2015, Plaintiff requested an administrative hearing. (AR 206–07.) A

7 hearing was held on February 1, 2017. (AR 102–65.) A medical expert, a vocational

8 expert and Plaintiff testified at the hearing. (AR 102–65.) On April 19, 2017, the ALJ

9 issued a written decision finding that Plaintiff had not been under a disability. (AR 64–

10 75.) On May 22, 2018, the Appeals Council denied Plaintiff’s request for review. (AR 7–

11 13.)

12 On September 28, 2018, Plaintiff commenced the instant action seeking judicial

13 review of the Commissioner’s decision. (ECF No. 1.) On December 17, 2018, Defendant

14 answered and lodged the administrative record. (ECF Nos. 9, 10.) On February 13, 2019,

15 Plaintiff moved for summary judgment, seeking reversal of Defendant’s denial of

16 disability benefits or, alternatively, remand for further administrative proceedings. (ECF

17 No. 12.) On April 19, 2019, the Commissioner cross–moved for summary judgment and

18 responded to Plaintiff’s motion. (ECF. Nos. 15, 16.) On April 30, 2019, Plaintiff filed a

19 reply and an opposition to Defendant’s cross motion. (ECF No. 17.) On May 10, 2019,

20 Defendant filed a sur–reply in support of Defendant’s motion. (ECF No. 18.) On June 11,

21 2019, Magistrate Judge Robert N. Block issued a R&R that the case be remanded for

22 further administrative proceedings. (ECF No. 20.) No objections have been filed.

23 B. Legal Background

24 Under the SSA, a Plaintiff has a “disability” if he or she is unable “inability to

25 engage in any substantial gainful activity by reason of any medically determinable

26 physical or mental impairment which can be expected to result in death or which has

27 lasted or can be expected to last for a continuous period of not less than 12 months.” 42

28 U.S.C. § 423(d)(1)(A). To determine whether a Plaintiff is disabled, the ALJ employs a

1 five–step sequential evaluation. 20 C.F.R. § 416.920(a)(4); Molina v. Astrue, 674 F.3d

2 1104, 1110 (9th Cir. 2012). “If the ALJ determines that a claimant is either disabled or

3 not disabled at any step in the process, the ALJ does not continue on to the next step.”

4 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

5 This process requires the ALJ to determine: (1) whether the Plaintiff is “doing

6 substantial gainful activity”; (2) whether the Plaintiff has a “severe medically

7 determinable physical or mental impairment” or combination of impairments, which

8 significantly limits the Plaintiff’s physical or mental ability to do basic work and that has

9 lasted for more than twelve months; (3) whether the impairment “meets or equals” one of

10 the listings in the regulations; (4) whether, given the Plaintiff’s residual functional

11 capacity (“RFC”), the Plaintiff can still do his or her “past relevant work”; and (5)

12 whether the Plaintiff “can make an adjustment to other work.” 20 C.F.R. § 416.920.

13 C. Factual Background

14 Plaintiff was born on May 17, 1966. (AR 132.) He was forty–seven years old at the

15 onset of the alleged disability and fifty at the time of the hearing. (Id.) Plaintiff has at

16 least a high school education and can communicate in English. (AR 74, 133.) Plaintiff

17 has worked as a business development manager, insurance salesman, and vice president

18 of sales. (AR 153.) Plaintiff claims that he has been disabled since May 17, 2013, due to

19 carpal tunnel syndrome disease, epicondylitis, ringing in ears, memory loss, and not

20 being able to concentrate due to depression and suicidal thoughts. (AR 283, 295.)

21 i. Medical Evidence1

22 The medical evidence here was primarily presented by four individuals: (1) Dr.

23 Martin A. Magy, a psychologist who assessed Plaintiff for workers’ compensation; (2)

24 Dr. Winifred Hui–Lin Lee, Plaintiff’s primary care doctor; (3) Dr. Nathan Miller,

25 Plaintiff’s physician; and (4) Ms. Recheal Stewart Brown, licensed clinical social worker.

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1 Because Claimant’s argument pertains to this mental RFC, the Court does not examine Claimant’s

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1 1. Dr. Martin A. Magy (Workers’ Compensation Psychologist)

2 On June 19, 2015, Plaintiff saw Dr. Magy, a Ph.D. clinical psychologist, for his

3 workers’ compensation claim. (AR 270–79.) As part of Plaintiff’s “Mental Status

4 Examination,” Dr. Magy observed:

5 Mr. McAnally is reportedly 6'3" tall and weighs 185 lb. He is a casually

dressed gentleman who wears glasses. His presentation is mildly odd. He is

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apparently extremely intelligent but his thought processes are circumstantial

7 and tangential. He is very detailed in his description of relatively minor events.

He clearly enjoys the opportunity to share his frustrations. Sleep is reportedly

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to be limited to less than four hours per night and is typically nonrestorative.

9 Appetite is diminished. Energy is low. Libido is low. Socially, he is isolated

and is more irritable with diminished frustration tolerance. He is becoming

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increasingly hopeless and helpless. His mood is anxious and agitated with

11 underlying resentment and depression. Memory and concentration are

reportedly poor. He has suicidal ideation but no current plan or intent. He

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denies auditory or visual hallucinations but states “I hear things I shouldn't.”

13 He denies homicidal ideation. He is anhedonic.

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(AR 273.) Dr. Magy diagnosed Plaintiff as having “Pain Disorder Associated with both a

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General Medical Condition and Psychological Factors (DSM-IV: 307.89),” ruled out a

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“typical Depressive Disorder, NOS (DSM-IV: 311.00),” and recommended Cognitive

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Behavioral Therapy training. (AR 273.) Dr. Magy requested authorization to perform two

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psychological tests, the Minnesota Multiphasic Personality Inventory (MMPI–2) and the

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Millon Clinical Multiaxial Inventory–2 (MCMI–2). (AR 284.) Dr. Magy reasoned that

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those tests were “important so as to delineate the level of depression and anxiety and to

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examine the personality factors that may impede recovery.” (AR 274.)

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2. Dr. Winifred Hui–Lin Lee (Primary Care Doctor)

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On December 10, 2014, Dr. Lee assessed the Plaintiff and found him to be

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“anxious,” to have a “depressed mood,” to exhibit “tangential thought[s],” and to be

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lacking “suicidal ideation [or] plans.” (AR 427–30, 451–54.) Dr. Lee conclude Plaintiff

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was “[p]ositive for depression” as well as “nervous/anxious” enough to merit a further

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psychological assessment. (Id.)

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1 On January 5, 2015, Dr. Lee found Plaintiff’s symptoms were consistent with

2 “severe depression” based, in part, on his score of more than 20 points on the personal

3 history questionnaire type 9 (“PHQ 9”), a depression screening tool.2 (AR 435, 497–98.)

4 Dr. Lee “advised initiation of Celexa and self–referral to psychiatry as much of his

5 depression also stems from lack of ability to work . . .” (AR 435.)

6 On February 24, 2015, Dr. Lee “HIGHLY” recommended that Plaintiff self-refer

7 to psychiatry, discontinue Celexa, and take an alternate antidepressant, Zoloft, if Celexa

8 was not working. (AR 536–38.)

9 On March 21, 2015, Dr. Lee advised Plaintiff to schedule an appointment with

10 psychiatry, noting that Plaintiff “may benefit from seeing a psychologist / psychiatrist for

11 [his] ongoing depression.” (AR 542.)

12 On May 28, 2015, Plaintiff saw Dr. Lee with complaints of generalized body pains.

13 (AR 553.) Dr. Lee reported that Plaintiff was alert, well developed, well nourished, and

14 in no distress. (AR 555.)

15 On June 15, 2016, Plaintiff saw Dr. Lee in order to review his medications and

16 asked to stop his prescriptions because he could no longer afford them. (AR 1017–24.)

17 Dr. Lee assessed Plaintiff as having normal memory, normal judgment, not appearing

18 anxious, nor expressing homicidal ideation, but nonetheless exhibiting a depressed mood

19 and apathy. (AR 1019.) Dr. Lee instructed Plaintiff on a six-week tapering schedule and

20 diagnosed him as having a “major depressive disorder, recurrent episode, in partial

21 remission.” (AR 1020–21.)

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2 The PHQ-9 is a brief, industry-standard assessment tool for depression, and has been found to be a

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“reliable and valid measure of depression severity.” See Kurt Kroenke, MD, et al., The Validity of a

25 Brief Depression Severity Measure, 16 J. GENERAL INTERNAL MEDICINE 606, 606 (2001), available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1495268/; see also Courtney Beard, PhD, et al.,

26 Validation of the PHQ-9 in a Psychiatric Sample, 193 J. AFFECTIVE DISORDERS 267 (2016), available at

https://www.sciencedirect.com/science/article/abs/pii/S0165032715310272 (“This first comprehensive

27 validation of the PHQ-9 in a large, psychiatric sample supported its use as a severity measure and as a

measure of treatment outcome. It also performed well as a screener for a current depressive episode

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1 3. Dr. Nathan Miller (Treating Physician for Physical Injury)

2 Dr. Nathan Miller met with Plaintiff more than one dozen times from January 19,

3 2015 to May 2, 2016 to address his physical injuries, including his shoulder surgery,

4 elbow pain, and carpal tunnel syndrome. (AR 938–89.) The psychiatric portions of Dr.

5 Miller’s progress notes consistently indicate Plaintiff’s “affect [was] flat with previous,

6 not active suicidal ideation, alert and awake and no signs of significant sedation.” (Id.)

7 Dr. Miller further evaluated Plaintiff’s mental impairment in more detail twice. On

8 June 16, 2015, Dr. Miller “requested authorization for cognitive behavioral therapy

9 evaluation and four sessions” to help address Plaintiff’s “delayed recovery” and “chronic

10 pain” following “his work related injury.” (AR 972, 976.) Then, on May 2, 2016, Dr.

11 Miller noted that, “[a]t this point the patient needs psychiatric care as soon as possible.

12 This should include psychiatric medication management and psychological

13 management.” (AR 940.) Dr. Miller then referred Plaintiff to “Psych Care” in four weeks.

14 (AR 940.)

15 4. Ms. Recheal Stewart Brown (Licensed Clinical Social Worker)

16 On February 17, 2017, Plaintiff saw LCSW Recheal Stewart Brown at PsyCare for

17 a psychological evaluation. (AR 96–101.) Per her mental status examination, LCSW

18 Brown indicated Plaintiff suffered from an anxious mood, derailed thought process,

19 impaired memory, impaired judgment, and impaired impulse control, though he had no

20 hallucinations or delusions. (AR 100.) LCSW Brown then diagnosed Plaintiff with

21 persistent depressive disorder, noting that he experienced various mental health issues,

22 including “[l]ow mood most of the day, physical complaints, overeating, difficulty

23 sleeping, poor self-image, poor concertation, memory difficulty, hopelessness, anger

24 outburst.” (AR 101.) LCSW Brown estimated Plaintiff would need six to twelve months

25 of treatment and recommended he return after one to two weeks. (AR 1001.)

26 5. Other Relevant Medical Evidence

27 a. Dr. Donald Jason White

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1 On January 17, 2017, Plaintiff saw Dr. Donald Jason White, at Kaiser Permanente,

2 for a swollen jaw. (AR 1034.) Dr. White noted Plaintiff suffered from “major depressive

3 disorder, recurrent episode, in partial remission.” (AR 1035.)

4 b. Dr. Rupa Lekh Nanavati

5 On February 3, 2017, Plaintiff saw Dr. Rupa Lekh Nanavati for memory disorder

6 screening upon referral from Dr. Lee. (AR 1079–84.) Dr. Nanavati conducted a medical

7 exam, found no evidence of dementia, and concluded Plaintiff suffered from “major

8 depressive disorder, recurrent episode, in partial remission.” (AR 1080) (capitalization

9 omitted.) Dr. Nanavati suspected “chronic pain, stress at home, and depression

10 contribute to [Plaintiff’s] cognitive complaints.” (AR 1080.)

11 ii. Hearing Testimony

12 On February 1, 2017, the ALJ held a hearing on Plaintiff’s appeal. (AR 102-65.)

13 1. Plaintiff Sean McAnally

14 Plaintiff testified that he cannot work because he is unable to concentrate and has

15 difficulty with his memory as a result of his depression. (AR 147, 149.) Plaintiff stated,

16 “I’m a native. Coming down I missed the five freeway. . . I used to be the encyclopedia

17 guy.” (AR 147.) Plaintiff explained that he stopped taking Lyrica because it made him

18 “really depressed” and “massively suicidal.” (AR 149, 150.) Plaintiff stated that his “kids

19 do everything on Google to remind [him] to pick them up from school and stuff.” (AR

20 149.) Plaintiff also testified that he is “really dependent on timers and stuff.” (AR 149.)

21 2. Charles L. Cooke, M.D. (Medical Expert, “ME”)

22 Dr. Charles L. Cooke testified after reviewing Plaintiff’s medical records for

23 possible physical and mental impairment. (AR 111–132.) The ME stated that “there is a

24 scant degree of evidence” for Plaintiff’s depression and that “it did not sound like severe

25 depression to me.” (AR 115.) The ME agreed with the ALJ’s “idea that if this is an issue,

26 then psychological or psychiatric consultation might be in order.” (AR 115.)

27 3. Erin M. Welsh (Vocational Expert, “VE”)

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1 Ms. Erin M. Welsh, a vocational expert, testified that Plaintiff’s past work as a

2 business development manager, insurance salesman, and vice president of sales was

3 “skilled” and “sedentary.” (AR 153.) The ALJ asked the VE a hypothetical question

4 about an individual of similar age, education, work history, and limitations as Plaintiff

5 who was “limited to understanding, remembering, and carrying out simple routine,

6 repetitive tasks with the need for standard industry breaks every two hours.” (AR 157.)

7 The VE opined that such individual could not perform Plaintiff’s prior work, but that he

8 could work as an information clerk, usher, or merchandise marker. (AR 157–58.) In

9 response to a second question, the VE opined that no jobs exist in the national economy if

10 “the hypothetical individual would be off task for an hour during the work day in addition

11 to regular breaks.” (AR 159.)

12 iii. The ALJ’s Findings

13 On April 19, 2017, the ALJ issued a written decision. (AR 64–75.) The ALJ

14 determined that Plaintiff had not been under a disability from May 17, 2013, through the

15 date of the decision. (AR 64–75.) At step one, the ALJ found that Plaintiff had not

16 engaged in substantial gainful activity since May 17, 2013. (AR 66.) At step two, the ALJ

17 found that Plaintiff had three severe impairments: right shoulder impairment, anxiety

18 disorder, and depressive disorder. (AR 66.) At step three, the ALJ found that Plaintiff

19 does not have an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (AR 22.)

20 At step four, the ALJ determined that Plaintiff has the RFC to perform light work

21 as defined in 20 CFR 404.1567(b) with some exceptions. (AR 69.) As to the RFC’s

22 mental component, the ALJ concluded that the “Plaintiff is limited to understanding,

23 remembering, and carrying out simple, routine, and repetitive tasks, with standard

24 industry work breaks every two hours.” (AR 69.) The ALJ accepted the VE’s testimony

25 and found that the demands of Plaintiff’s past work “exceed his [RFC].” (AR 73–74.)

26 At step five, the ALJ concluded that given Plaintiff’s age, education, work

27 experience, and RFC, Plaintiff could perform some jobs that exist in significant numbers

28 in the national economy, including an information clerk, usher, and merchandise marker.

1 (AR 74–75.) Thus, the ALJ concluded that Plaintiff has not been under a disability since

2 May 17, 2013, through the date of the decision of April 19, 2017. (AR 75.)

3 II. Legal Standards

4 A. Review of the Magistrate Judge’s Report & Recommendation (R&R)

5 The district court’s duties in connection with an R&R of a magistrate judge are set

6 forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge

7 must “make a de novo determination of those portions of the report . . . to which

8 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

9 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district

10 court need not review de novo those portions of an R&R to which neither party objects.

11 U.S. v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). “If neither party

12 contests the magistrate's proposed findings of fact, the court may assume their correctness

13 and decide the motion on the applicable law.” Campbell v. U.S. Dist. Court for N. Dist. of

14 California, 501 F.2d 196, 206 (9th Cir. 1974).

15 B. Review of the Commissioner’s Decision

16 A district court has jurisdiction to review final decisions of the Commissioner of

17 Social Security. 42 U.S.C. § 405(g). An ALJ’s decision to deny benefits must be set aside

18 only when it is “based on legal error or not supported by substantial evidence in the

19 record.” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). “A decision of the ALJ

20 will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679

21 (9th Cir. 2005). Generally, an error is harmless if it either “occurred during a procedure

22 or step the ALJ was not required to perform,” or if it “was inconsequential to the ultimate

23 nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055

24 (9th Cir. 2006).

25 C. Review for Substantial Evidence

26 Substantial evidence is “such relevant evidence as a reasonable mind might accept

27 as adequate to support a conclusion.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th

28 Cir. 2008). The “evidence must be more than a mere scintilla but not necessarily a

1 preponderance.” Id. “The court will uphold the ALJ’s conclusion when the evidence is

2 susceptible to more than one rational interpretation” if it is “supported by inferences

3 reasonably drawn from the record . . .” Id. When reviewing for substantial evidence, a

4 court “must consider the entire record as a whole, weighing both the evidence that

5 supports and the evidence that detracts from the Commissioner's conclusion, and may not

6 affirm simply by isolating a specific quantum of supporting evidence.” Garrison v.

7 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Ultimately, in the absence of substantial

8 evidence, the Court cannot uphold an ALJ’s RFC determination. Vasquez v. Comm’r of

9 Soc. Sec., 2019 WL 3714565, at *4 (E.D. Cal. Aug. 7, 2019) (finding that the evidence

10 was insufficient basis to conclude that the RFC’s limitations accurately reflected the work

11 limitations associated with the mental impairments found by the ALJ).

12 III. Discussion

13 Plaintiff argues that the Commissioner erred because (1) Plaintiff’s RFC3 cannot be

14 deemed based on substantial evidence without support of a medical opinion, and (2) the

15 ALJ failed to fully and fairly develop the record to include such an opinion. (ECF No.

16 12.) The Commissioner contends that substantial evidence supports Plaintiff’s RFC and

17 that the ALJ was not required to develop the record further. (ECF Nos. 15, 16.) For the

18 reasons stated below, the Court agrees with Plaintiff as to both arguments and

19 REMANDS this matter for further administrative proceedings.

20 A. The RFC Determination is Not Supported by Substantial Evidence Because

21 the ALJ Acted as His Own Medical Expert.

22 The RFC is, in short, “the most [a Plaintiff] can still do despite [his or her]

23 limitations.” 20 C.F.R. § 416.945(a)(1). In making an RFC determination, an “ALJ may

24 not act as his own medical expert as he is ‘simply not qualified to interpret raw medical

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3 As only Plaintiff’s mental RFC is being challenged, any subsequent references to Plaintiff’s RFC

27 pertain exclusively to his mental – not his physical – RFC, i.e., the ALJ’s conclusion that the “Plaintiff is

limited to understanding, remembering, and carrying out simple, routine, and repetitive tasks, with

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1 data in functional terms.’” Rivera v. Berryhill, No. ED-CV-16-791-SP, 2017 WL

2 5054656, at *4 (C.D. Cal. Oct. 31, 2017) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st

3 Cir. 1999)); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb

4 to the temptation to play doctor and make their own independent medical findings.”)

5 Instead, the ALJ should permit an examining physician or medical expert to evaluate the

6 evidence. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ should not

7 make his “own exploration and assessment” as to a Plaintiff’s impairments); Miller v.

8 Astrue, 695 F. Supp. 2d 1042, 1048 (C.D. Cal. 2010) (“the ALJ acted as his own medical

9 expert . . . which is improper.”); Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal.

10 2008) (noting that an “ALJ is simply not qualified to interpret raw medical data”).

11 Here, the record is devoid of any opinion by a treating or examining physician, or

12 medical expert, that assesses how Plaintiff’s mental impairment impacts his ability to

13 work. In June 2015, for example, Dr. Magy noted that Plaintiff’s “thought processes

14 [were] circumstantial and tangential” and that his “[m]emory and concentration [were]

15 reportedly poor,” but did not translate those observations into an assessment of Plaintiff’s

16 functional limitations. (AR 273.) Likewise, across various appointments from December

17 2014 to June 2016, Dr. Lee found Plaintiff’s symptoms consistent with “severe

18 depression” given his PHQ-9 results, prescribed Plaintiff multiple anti-depressants, and

19 “HIGHLY” recommended additional psychiatric treatment, but did not explain what any

20 of that meant for Plaintiff’s ability to work. (AR 435, 497–98, 536–38, 542, 553–55,

21 1017–24.) Other medical professionals observed Plaintiff’s ongoing mental health issues

22 from 2015 through to early 2017, but similarly stopped short of assessing how such

23 symptoms might limit Plaintiff’s mental capacity for work. (AR 96–101, 972, 976, 940,

24 1034–35, 1079–84.) In addition, at Plaintiff’s hearing, the ME likewise did not testify as

25 to any functional limitations resulting from Plaintiff’s mental impairment, focusing

26 instead on Plaintiff’s physical conditions – e.g., carpal tunnel syndrome, shoulder surgery

27 – and his physical RFC. (AR 116–19.) The ME offered only that Plaintiff’s mental

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1 impairment “did not sound like severe depression to [him],” and then noted that “if this is

2 an issue, then a psychological or psychiatric consultation might be in order.” (AR 115.)

3 In the absence of testimony from a treating or examining physician, or from the

4 medical expert, the ALJ improperly “interpret[ed] the raw medical data” in the record

5 contrary to established precedent. Rivera, 2017 WL 5054656, at *4 (citation omitted). For

6 example, in concluding Plaintiff has moderate limitations in understanding, remembering,

7 or applying information, the ALJ noted that Plaintiff “reported a loss of memory on

8 various occasions” and that Plaintiff stated he “is only able to pay attention for up to 30

9 minutes . . .” (AR 68.) Likewise, in concluding that Plaintiff has only mild limitations in

10 interacting with others, the ALJ contrasted descriptions of Plaintiff as isolated, anxious,

11 and irritable with other descriptions of Plaintiff as alert, pleasant, courteous, and

12 cooperative. (AR 68.) Also, in finding Plaintiff has moderate limitations in concentrating,

13 persisting, or maintaining pace, the ALJ cited to Dr. Magy’s observations and to

14 Plaintiff’s own testimony that “he does not sleep well.” (AR 68.) At no point did the ALJ

15 cite to a medical opinion that concluded Plaintiff is capable only of “simple, routine, and

16 repetitive tasks” or that Plaintiff’s mental health is such that he can comply with

17 “standard industry work breaks every two hours.” (AR 68–71.)

18 In light of the ALJ’s analysis, and the absence of a medical opinion as to Plaintiff’s

19 functional limitations, Plaintiff’s mental RFC determination is evidently nothing more

20 than the ALJ’s “own exploration and assessment” of Plaintiff’s impairments. Day, 522

21 F.2d at 1156; (see AR 69–71). This is precisely the kind of armchair football that courts

22 regularly discourage and remand. See, e.g., Freda G. v. Saul, No. 5:18-CV-00694-AFM,

23 2019 WL 2568398, at *4 (C.D. Cal. June 20, 2019) (remanding where ALJ determined

24 an RFC in the absence of a medical opinion regarding the Plaintiff’s functional

25 limitations); Pulido v. Berryhill, No. 1:17-CV-0884-JLT, 2018 WL 4773109, at *7–8

26 (E.D. Cal. Oct. 2, 2018) (remanding and rejecting the ALJ’s findings that “restriction to

27 light work was appropriate” and that the Plaintiff could “occasionally reach overhead

28 with the left upper extremity” where there was no medical opinion to support that);

1 Wheat v. Berryhill, No. 17-CV-02496-MMA, 2018 WL 3870055, at *3 (S.D. Cal. Aug.

2 14, 2018), report and recommendation adopted, No. 17-CV-2496-MMA, 2018 WL

3 4328219 (S.D. Cal. Sept. 11, 2018) (remanding on the basis that “the ALJ’s statement

4 that the mental status examinations in evidence show primarily ‘mild to moderate’

5 findings is the ALJ’s own interpretation of the findings”); Rodriguez v. Berryhill, No. CV

6 16-8225-FFM, 2017 WL 8231050, at *2 (C.D. Cal. Nov. 28, 2017) (remanding where

7 ALJ found Plaintiff could perform sedentary work based on his “interpretation of the

8 medical evidence,” and “not based on the opinion of any physician”).

9 Consequently, this Court finds that the ALJ’s RFC determination is not supported

10 by substantial evidence. In the absence of a medical opinion interpreting the extent of

11 Plaintiff’s mental impairment, there is an insufficient basis to conclude that he is limited

12 to “simple, routine, and repetitive tasks” or, on the other hand, that “standard industry

13 work breaks every two hours” are sufficient to accommodate his impairment. (AR 71.)

14 B. The ALJ Did Not Adequately Develop the Record.

15 Plaintiff also contends that the ALJ failed to fully and fairly develop the record as

16 to Plaintiff’s RFC. (ECF Nos. 12, 17.) The Commissioner responds that the ALJ assessed

17 a generous RFC given the extremely limited treatment records. (ECF No. 15, 18.) The

18 Court agrees with Plaintiff and remands to further develop the record.

19 i. The ALJ’s Duty to Fully and Fairly Develop the Record.

20 An ALJ has a duty to fully and fairly develop the administrative record. Celaya v.

21 Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see also Diedrich v. Berryhill, 874 F.3d

22 634, 638 (9th Cir. 2017) (“The ALJ is responsible for studying the record and resolving

23 any conflicts or ambiguities in it.”). “An ALJ’s duty to develop the record further is

24 triggered only when there is ambiguous evidence or when the record is inadequate to

25 allow for proper evaluation of the evidence,” Mayes v. Massanari, 276 F.3d 453, 459–60

26 (9th Cir. 2001), including when “the administrative record does not contain any opinion

27 by a treating or examining physician regarding plaintiff’s RFC . . .” Mendoza v.

28 Barnhart, 436 F. Supp. 2d 1110, 1116 (C.D. Cal. 2006); see also de Lopez v. Astrue, 643

1 F. Supp. 2d 1178, 1184 (C.D. Cal. 2009) (finding ALJ failed in this duty when the record

2 lacked an opinion by a treating or examining physician); Banks v. Barnhart, 434 F. Supp.

3 2d 800, 805 (C.D. Cal. 2006) (same).

4 That duty is heightened “where the claimant may be mentally ill and thus unable to

5 protect her own interests.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)

6 (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir. 1992)); accord DeLorme v.

7 Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) (“In cases of mental impairments, this duty

8 [to develop the record] is especially important.”). When a heightened duty is triggered,

9 “the ALJ should not be ‘a mere umpire’” . . . but must “‘scrupulously and conscientiously

10 probe into, inquire of, and explore for all relevant facts . . .’” Widmark v. Barnhart, 454

11 F.3d 1063, 2006 DJDAR 9741, 9443 (9th Cir. 2006) (quoting Higbee v. Sullivan, 975

12 F.2d 558, 560 (9th Cir. 1992)). “The ALJ can satisfy this duty in a variety of ways,

13 including ‘subpoenaing the claimant’s physicians, submitting questions to the claimant’s

14 physicians, continuing the hearing, or keeping the record open after the hearing to allow

15 supplementation of the record.’” Rios v. Berryhill, No. 14-CV-00654-JCS, 2018 WL

16 905849, at *21 (N.D. Cal. Feb. 15, 2018) (quoting Tonapetyan, 242 F.3d at 1150).

17 Here, the ALJ concluded at step two that Plaintiff suffered from severe anxiety and

18 depressive disorders. (AR 66.) Consequently, there is no dispute that the ALJ was subject

19 to “heightened” duty to develop the record. Tonapetyan, 242 F.3d at 1150.

20 ii. The Record Required Further Medical Testimony to Support the

21 ALJ’s RFC.

22 The Court finds that the ALJ committed error by failing to fully develop the record

23 for multiple reasons. As a threshold issue, the ALJ determined that Plaintiff “is limited to

24 understanding, remembering, and carrying out simple, routine, and repetitive tasks, with

25 standard industry work breaks every two hours,” (AR 69), in the absence of any opinion

26 by a treating or examining physician delineating the functional impact of Plaintiff’s

27 mental impairment. “Without a personal medical evaluation, it is almost impossible to

28 assess the residual functional capacity of any individual.” Penny v. Sullivan, 2 F.3d 953,

1 958 (9th Cir. 1993). The ALJ may have been able to fully develop the record by ordering

2 a psychiatric consultation regarding Plaintiff’s mental RFC. See Nevland v. Apfel, 204

3 F.3d 853, 858 (8th Cir. 2000) (finding that the Commissioner’s decision lacked

4 substantial evidence because the ALJ did not supplement the record with the opinion of a

5 treating or examining physician regarding plaintiff’s RFC); de Lopez, 643 F. Supp. 2d at

6 1184 (same); Mendoza, 436 F. Supp. 2d at 1116 (same). Alternatively, the ALJ may have

7 adequately developed the record by obtaining additional medical source statements as to

8 Plaintiff’s mental RFC from his treating doctors. See Lewis v. Comm’r Soc. Sec. Admin.,

9 293 F. App’x 495, 496 (9th Cir. 2008) (finding ALJ had duty to request medical source

10 statements about what the Plaintiff can still do given, as is the case here, ambiguity about

11 the extent of the Plaintiff’s impairment); 20 C.F.R. § 404.1513(a)(2) (requiring ALJ to

12 request “statement(s) from a medical source about what [the Plaintiff] can still do despite

13 [his] impairment(s),” including the Plaintiff’s “ability to perform mental demands of

14 work activities, such as understanding; remembering; maintaining concentration,

15 persistence, or pace; carrying out instructions; or responding appropriately to supervision,

16 co-workers, or work pressures in a work setting”). The ALJ did neither and thus erred.

17 The Court’s conclusion finds additional support in the ALJ’s own recognition that

18 the record lacked such records and in the ME’s indication that such records would be

19 important to assessing Plaintiff’s disability claim. See Struck v. Astrue, 247 F. App’x 84,

20 86 (9th Cir. 2007) (finding ALJ failed to fully develop the record, in part, because “both

21 the ALJ and the medical expert who testified at the ALJ’s request concluded that

22 inpatient treatment records from two recent hospitalizations of Struck were important to

23 assessing her claim.”). Here, at Plaintiff’s hearing, the ALJ noted the absence of medical

24 evidence pertaining to Plaintiff’s alleged mental impairment. (AR 105.) Plaintiff’s

25 counsel acknowledged that absence and received two weeks from the ALJ to complete

26 the record, (AR 105–06), after which he submitted Exhibits 14F, (AR 1004–15), and 15F.

27 (AR 1015–80.) In response to the ALJ’s request that the ME summarize the “severe

28 impairments” and describe “what the functional limitations are,” the ME noted in

1 agreement with the ALJ that, “if [Plaintiff’s depression were] an issue, then

2 psychological or psychiatric consultation might be in order.” (AR 111, 115.) Then, in his

3 opinion, the ALJ re-affirmed the dearth of medical evidence pertaining to Plaintiff’s

4 mental impairment, noting that “the Plaintiff has had very little mental health treatment”

5 and that the “objective signs and findings, such as mental status examination findings, are

6 not substantial, either in degree or in frequency.” (AR 71.) Consequently, rather than

7 supplement the limited record, the ALJ relied on the already-acknowledged lack of

8 evidence to rule against the Plaintiff, and thus abdicated its “heightened duty to develop

9 the record” for a mentally impaired individual. Struck, 247 F. App’x at 86.

10 In addition, that the ALJ kept the post–hearing record open for two weeks so that

11 Plaintiff could submit additional evidence of a mental impairment is insufficient to cure

12 the ALJ’s errors. (AR 105–106.) The evidence that Plaintiff submitted after the hearing,

13 i.e., Exhibits 14F and 15F, do not include an assessment of Plaintiff’s functional

14 limitations resulting from his mental impairment. (AR 64, 1004–84.) In addition, the ALJ

15 devoted minimal attention to that evidence in rendering an RFC, (see AR 68, 71), and did

16 not re-open the hearing to present that evidence to an ME for his testimony and opinion.

17 See Coleman, 2009 WL 861864, at *11 (finding that ALJ erred by not providing the

18 medical expert with evidence submitted by the Plaintiff shortly after the hearing, and well

19 in advance of the ALJ’s opinion, so that the expert could “provide supplemental

20 testimony” on it).

21 Consequently, for the foregoing reasons, the Court finds that the ALJ’s failure to

22 fully develop the record was error. The Court, moreover, reminds the ALJ that even

23 where a Plaintiff “may have failed to seek psychiatric treatment for his mental condition .

24 . . it is a questionable practice to chastise one with a mental impairment for the exercise

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1 of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th

2 Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)).

3 C. The ALJ’s Error Was Not Harmless and Requires Remand.

4 The Court now turns to the analysis of whether this error by the ALJ was harmless.

5 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec.

6 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). An error is harmless “where it is

7 inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115

8 (citations omitted). Courts look to the record as a whole to determine whether the error

9 alters the outcome of the case. Molina, 674 F.3d at 1115; March v. Colvin, 792 F.3d

10 1170, 1172 (9th Cir. 2015). Federal courts review only the reasoning the ALJ provided

11 and may not affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”

12 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need not be

13 drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s reasoning “in a

14 way that allows for meaningful review.” Brown–Hunter v. Colvin, 806 F.3d 487, 492 (9th

15 Cir. 2015) (citation and quotation marks omitted).

16 The court has “discretion to remand a case either for additional evidence and

17 findings or to award benefits.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157,

18 1164 (9th Cir. 2012) (citation omitted). In general, when the Court reverses an ALJ’s

19 decision “the proper course, except in rare circumstances, is to remand to the agency for

20 additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.

21 2004) (citations omitted).

22

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4 The Court also notes that the ALJ’s characterization of Claimant as failing to pursue medical treatment

24

is not entirely accurate. After all, Claimant sought mental health treatment from a licensed clinical social

25 worker in 2017 – i.e., well after the progress notes and interactions with Dr. Lee that the ALJ relies on to

make that assertion. (AR 71, 96–101.) In addition, Claimant’s delays in seeking treatment seem to result,

26 in part, from his efforts to find a provider that was a good fit, and thus support an inference contrary to

the ALJ’s conclusion, i.e., that he was attempting to obtain treatment. (AR 483, 518, 525.) Lastly,

27 Claimant’s inability to seek consistent treatment may also be explained by his financial challenges. (See,

e.g., AR 1018 (noting that Claimant “[d]oes not want prescriptions from kaiser because he states he does

28

1 Here, the record establishes that the ALJ’s errors were not harmless. The ALJ

2 determined Plaintiff’s mental RFC without a medical opinion that defined Plaintiff’s

3 limitations, and then failed to explain what evidence supports his specific determinations

4 that Plaintiff was limited to “simple, routine, and repetitive tasks” and could operate on

5 “standard industry work breaks every two hours.” (AR 69); See Briscoe ex rel. Taylor v.

6 Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (finding reversible error where the ALJ

7 failed to explain how the evidence supports his RFC determination). This is of special

8 concern here because the Vocational Expert testified that, if a person like Plaintiff were

9 unable to focus for one hour in addition to the industry standard breaks, there would be

10 no jobs available for him in the national economy, and it is not clear how Plaintiff’s

11 mental impairments limit his ability to work. (AR 115.) A medical opinion as to

12 Plaintiff’s mental RFC, moreover, would receive substantial weight such that it might

13 alter the ALJ’s RFC determination. See 20 C.F.R. § 404.1527(c)(2). (“If . . . a treating

14 source’s medical opinion on the issue(s) of the nature and severity . . . is well–supported

15 by medically acceptable clinical and laboratory diagnostic techniques and is not

16 inconsistent with the other substantial evidence in [the] record, [the Commissioner] will

17 give it controlling weight.”). And, the ALJ could have easily sought one out, either by

18 ordering a consultative examination or obtaining medical source statements from

19 Plaintiff’s doctors. Consequently, neither the ALJ’s impermissible review of the

20 evidence, nor his failure to fully and fairly develop the record, are harmless.

21 In addition, in light of the record, the Court finds that remand is appropriate. Doing

22 so will give the ALJ an opportunity to reconsider his impermissible review of the

23 evidence and supplement the record as discussed above.

24 IV. Conclusion

25 Based on the foregoing review of the relevant law and the administrative record,

26 the Court ADOPTS the R&R, GRANTS Plaintiff’s motion for summary judgment, and

27 DENIES Defendant’s cross–motion for summary judgment. (ECF Nos. 12, 15, 20.) The

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1 || Court REMANDS this matter to the Commissioner of the Social Security Administration

2 further administrative proceedings.

3 IT IS SO ORDERED.

4 Dated: March 24, 2020 <=

6 United States District Judge

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