explaining that “the ALJ, not the district 6 court, is required to provide specific reasons for rejecting lay testimony”
How later courts described this case
- explaining that “the ALJ, not the district 6 court, is required to provide specific reasons for rejecting lay testimony”
- declining to take medication with which 19 plaintiff had previously attempted to commit suicide
- “The ALJ did not make findings as to the pervasiveness of these 12 activities, what they entailed, or how the physical functions displayed during the 13 activities are transferrable to a work setting.”
- declining 20 to seek treatment because plaintiff did not have insurance and thus could not afford 21 treatment
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10 Case No. 3:19-cv-00482-GPC-NLS
PRECILA CARDINAL CONTRERAS,
11
ORDER DECLINING TO ADOPT
Plaintiff,
12 REPORT AND RECOMMENDATION,
GRANTING PLAINTIFF’S MOTION
13 v.
FOR SUMMARY JUDGMENT,
14 DENYING DEFENDANT’S MOTION
ANDREW M. SAUL, Commissioner of FOR SUMMARY JUDGMENT, AND
15 Social Security, REMANDING FOR FURTHER
16 ADMININSTRATIVE PROCEEDINGS.
Defendants.
17
[ECF No. 12, 16, 21.]
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19 Precila Contreras (“Plaintiff”) seeks judicial review of the Social Security
20 Administration’s (“Defendant”) final decision denying her claim for disability insurance
21 benefits. (ECF No. 1.) This case was referred for a report and recommendation on the
22 parties’ cross motions for summary judgment. See 28 U.S.C. § 636(b)(1)(B); (ECF Nos.
23 12, 16, 21.) After careful consideration of Magistrate Judge Nita L. Stormes’ report and
24 recommendation (“R&R”), the pleadings, the supporting documents, and the applicable
25 law, the Court DECLINES TO ADOPT the Magistrate Judge’s R&R, GRANTS the
26 Plaintiff’s Motion for Summary Judgment, DENIES the Defendant’s Motion for
27 Summary Judgment and REMANDS this matter for further administrative proceedings.
28
1 I. Background
2 A. Procedural Background
3 On September 28, 2015, Plaintiff filed a Title II application for Social Security
4 Disability Insurance, alleging a disability onset date of June 30, 2014. Administrative
5 Record (“AR”) at 182. Plaintiff alleges that she suffers from hypertension, kidney
6 problems related to high blood pressure, anxiety, panic attacks, depression, a “heart
7 condition, prior MI infarction,” high cholesterol, headaches, and “poor sleep.” (AR 248.)
8 Plaintiff’s claims were initially denied on December 21, 2015 and again upon
9 reconsideration on March 2, 2016. (AR 84–108.)
10 On March 16, 2016, Plaintiff requested a hearing before an Administrative Judge
11 (“ALJ”), which was held on December 8, 2017. (AR 20, 36.) Plaintiff and vocational
12 expert Sonia Peterson testified at the hearing. (AR 36–37.) On March 15, 2018, the ALJ
13 found Plaintiff was not disabled and denied her request for benefits. (AR 30.) On May 7,
14 2018, Plaintiff filed a Request for Review of Hearing Decision. (AR 176–77.) On
15 February 13, 2019, the Appeals Council denied Plaintiff’s request for review, making the
16 ALJ’s decision the final decision of the Commissioner. (AR 1–3.)
17 On March 13, 2019, Plaintiff timely commenced the instant action seeking judicial
18 review of the Commissioner’s decision. (ECF No. 1.) On May 17, 2019, Defendant
19 answered and lodged the administrative record with the Court. (ECF Nos. 6, 7.) On May
20 12, 2019, Plaintiff moved for summary judgment or remand. (ECF No. 12.) On
21 September 30, 2019, the Commissioner cross-moved for summary judgment and
22 responded to Plaintiff’s motion. (ECF Nos. 16, 17.) On October 22, 2019, Plaintiff filed a
23 reply to Defendant’s cross-motion and response. (ECF No. 20.) On December 16, 2019,
24 the Magistrate Judge issued the R&R and no objections have been filed. (ECF No. 21.)
25 i. Plaintiff’s Background & Testimony
26 Plaintiff was born on April 4, 1955. (AR 85.) Plaintiff has received advanced
27 education in nursing and has held several jobs in the medical field. (AR 249.) Plaintiff
28 worked for fifteen years at Scripps Green Clinic – eight as a telemetry technician from
1 1987 to 1995 and seven as a Registered Nurse from 1995 to 2002. (AR 53–54, 265.) In
2 2002, Plaintiff transferred to Palomar Hospital. (AR 265.)
3 Plaintiff claims that she suffers from the following mental and emotional
4 conditions: depression, anxiety, panic attacks, and “poor sleep.” (AR 85–86.) In addition,
5 she suffers from various physical conditions, including hypertension, kidney problems
6 related to high blood pressure, “heart condition, prior MI infarction,” high cholesterol,
7 and headaches. (AR 248.)
8 Plaintiff lives in a home with her husband and son. (AR 55–56, 104.) Plaintiff
9 occupies herself with housework, including cleaning, laundry, ironing, and cooking, for
10 about “an hour or two” daily. (AR 57, 65–66, 280–81.) Plaintiff reports “easily get[ting]
11 tired” doing her housework. (AR 280–81.) For about one to two hours per week, she goes
12 grocery shopping at the local store, a Sprouts located about five minutes from her home,
13 and occasionally drives there. (AR 57–58, 65–66, 282.) She also “engages in gardening,”
14 an activity she describes as “talk[ing] to [her] plants [and her] flowers basically.” (AR 57,
15 66.) In addition, Plaintiff watches “some television,” though she has trouble
16 concentrating for more than 20 to 30 minutes at a time. (AR 57, 66, 284.)
17 Plaintiff needs to rest for about 10 to 20 minutes after walking every 100 to 200
18 feet during her daily activities. (AR 284.) She cannot walk “so far” and, more generally,
19 has limitations “driving or thinking or walking.” (AR 61.) Plaintiff’s difficulty walking
20 stems from an accident in which she fell from a tree resulting in scoliosis and broken ribs.
21 (AR 61–62.)
22 At the December 8, 2017 hearing, Plaintiff testified that she stopped working as a
23 nurse at Palomar after an incident where she was wrongfully accused of failing to empty
24 the “drippy machine.” (AR 47.) Plaintiff claimed that she had done that, but “just didn’t
25 chart it.” (AR 45–47.) Plaintiff was written up for the mistake and then stopped working
26 because she “got stressed out.” (AR 46–47.) Plaintiff later suffered from high blood
27 pressure due to the stress caused by being accused of making that mistake. (AR 51.)
28 Plaintiff attempted to work some months after the incident. (AR 41–42.) She
1 testified that, despite feeling “very stressed out” and “nervous,” she thought she was
2 “doing well.” (AR 58–49, 58–59.) Hence, she was surprised when her employer let her
3 go after only three days. (AR 59.) Her employer told her that she couldn’t “concentrate,”
4 didn’t know what she was doing, and was “very slow.” (AR 59.) Plaintiff testified that
5 she would have wanted to remain at Palomar until she reached retirement age if she
6 could. (AR 50, 52.)
7 Plaintiff further testified to hearing and seeing things, including “shadows” and
8 “somebody talking in corners of [her] house.” (AR 67.) Plaintiff also attempted to
9 commit suicide on two occasions, though the details of those attempts are unclear from
10 her testimony. (AR 69.) Lastly, Plaintiff testified to suffering from memory loss,
11 including being unable to recall the questions asked by the ALJ or her answers. (AR 67–
12 68, 72–73.)
13 In her appeal of the adverse eligibility determination, Plaintiff reported that her
14 mental condition had worsened after her son attempted suicide and was involuntarily
15 committed in February 2016. (AR 230, 234, 236, 578, 615.) As a result, she struggled to
16 get through every day, experienced poorly controlled thought processes, and no longer
17 wanted to do any household chores. (AR 234.)
18 At the hearing, when asked if she could perform the job of being a companion for
19 an elderly person for eight hours a day and making sure that they took their medicine,
20 Plaintiff testified that she was unable to work because she was afraid she would do
21 something wrong. (AR 62.) She repeated, “I’m totally blanked out, and I don’t even have
22 any confidence in myself now,” and confessed that she feared she might accidentally “kill
23 somebody.” (AR 63.) In response to the ALJ’s question, Plaintiff noted that her mental
24 health issues were holding her back. (AR 62–63.)
25 ii. Lay Testimony from Plaintiff’s Husband, Mr. Neal Contreras
26 On October 25, 2015, Plaintiff’s husband, Mr. Neal Contreras, filed a functional
27 report detailing his observations of Plaintiff’s symptoms and functional limitations. (AR
28 292–99). Mr. Contreras described Plaintiff as experiencing limitations in her ability to
1 work mentally, emotionally, and physically. (AR 292.) He noted Plaintiff’s daily
2 activities, including cooking, cleaning, laundry, feeding dogs, and doing “patio/yard
3 cleaning.” (AR 293–94.) Mr. Contreras stated that Plaintiff had a hobby of watching
4 television, though she could only pay attention closely for half an hour. (AR 296–97.) He
5 also noted that Plaintiff spent 30 minutes or more cooking daily, about 30 minutes on
6 housework daily, and about one to two hours per week out of the house shopping for
7 groceries. (AR 294–95.) Mr. Contreras also noted that Plaintiff could sometimes drive
8 and did not otherwise opine about her gardening. (AR 295.) Lastly, Mr. Contreras
9 observed that Plaintiff was having difficulty maintaining interest or having the energy to
10 engage in her daily activities, and had experienced problems with her memory,
11 concentration, and understanding. (AR 294–95, 97.)
12 On November 5, 2017, Mr. Contreras submitted a signed letter including twelve
13 examples of Plaintiff’s problems and functional difficulties that he had personally
14 observed over time. (AR 591.) This letter included apathy, appetite disturbance with
15 weight gain, sleep problems, agitation, difficulty concentrating, suicidal thoughts,
16 paranoid thinking, anxiety, apprehensive expectations, compulsions, and “recurrent and
17 intrusive recollections of a traumatic experience from her former employer.” (Id.)
18 B. The Medical Record1
19 i. Dr. Alan Chang
20 Dr. Alan Chang is Plaintiff’s primary care doctor and treating physician. On
21 September 25, 2015, Dr. Chang responded to questions posed by Plaintiff in connection
22 with her long-term disability claim to her insurer. (AR 581.) In response to the questions
23 “Am I totally disabled from doing my job as a nurse?” and “If so, have I been disabled
24 since June 2014?”, Dr. Chang stated that, “Yes, unfortunately you have not been able to
25 work due to job stress.” (AR 581.)
26
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1 Because Plaintiff does not dispute the ALJ’s determination of Plaintiff’s physical RFC, the Court sets
28
1 On December 10, 2015, Plaintiff first reported her mental health issues to Dr.
2 Chang. (AR 561.) Dr. Chang noted that Plaintiff “ha[d] not expressed the extent of the
3 stress and how it was affecting her until today’s visit.” (Id.) Dr. Chang gave Plaintiff a
4 prescription for Zoloft and referred her to psychiatry. (AR 564.)
5 On January 11, 2016, Dr. Chang reported that Plaintiff had revealed the full extent
6 of her family history of mental illness for the first time. (AR 565.) Plaintiff reported that
7 her sister had committed suicide and that her daughters also suffer from depression. (Id.)
8 Dr. Chang stated that “this seems to be a very strong family history of mental illness.”
9 (Id.) Dr. Chang opined that “[a]t this time [Plaintiff] is clearly not able to work or
10 function because of the mental illness.” (AR 568.)
11 On February 24, 2016, Dr. Chang observed that Plaintiff had been diagnosed with
12 major depressive disorder with anxiety. (AR 576.) He opined that Plaintiff “is not able to
13 work due [her] emotional and mental stress.” (Id.) Dr. Chang described that Plaintiff’s
14 recent openness about her mental condition explained why “she was not able to perform
15 at her job,” and led him to conclude that Plaintiff “should not work.” (Id.) Dr. Chang also
16 noted in his assessment that Plaintiff’s son had attempted to commit suicide and that
17 Plaintiff “is now a caregiver at home for him.” (AR 578.)
18 ii. Dr. Ryan Greytak
19 On December 2, 2015, Dr. Ryan Greytak performed a Comprehensive Psychiatric
20 Evaluation of Plaintiff. (AR 543.) Dr. Greytak determined that Plaintiff’s condition was
21 “most consistent with . . . a DSM 5 diagnosis of generalized anxiety disorder.” (AR 548.)
22 With respect to Plaintiff’s mental functional capacity, Dr. Greytak opined that Plaintiff
23 was mildly impaired as to her ability to “do detailed and complex instructions,” “relate
24 and interact with co-workers and [the] public,” “maintain concentration and attention,
25 persistence and pace,” “associate with day-to-day work activity, including attendance and
26 safety,” “accept instructions from supervisors,” “maintain regular attendance in the work
27 place and perform work activities on a consistent basis,” and “perform work activities
28 without special or additional supervision.” (AR 548–49.) Dr. Greytak also found that
1 Plaintiff had no impairment as to her ability to “understand, remember, and carry out
2 simple one or two-step job instructions.” (AR 548.) Dr. Greytak opined that Plaintiff’s
3 psychiatric prognosis was “fair.” (AR 548.)
4 iii. Lee Reback Psy. D., P.A. and Brady Dalton, Psy. D.
5 As part of Plaintiff’s initial disability determination, Lee Reback Psy. D., P.A.
6 reviewed Plaintiff’s medical records. (AR 90–92.) On December 20, 2015, Dr. Reback
7 concluded that Plaintiff’s mental status was “mildly impaired” in several areas, including
8 but not limited to Plaintiff’s ability “to do detailed and complex instructions,” “to relate
9 and interact with co-workers and [the] public,” and “to maintain concentration and
10 attention, persistence and pace.” (AR 92.) Dr. Reback also opined that, “[f]rom a mental
11 health perspective, the claimant appears to have the capacity to perform daily and routine
12 activities.” (AR 92.)
13 In addition, upon reconsideration of Plaintiff’s disability request, Brady Dalton,
14 Psy. D., reviewed Plaintiff’s medical records and her disability determination. (AR 102–
15 04.) Dalton noted that Plaintiff claimed that her condition began worsening before her
16 evaluation by the consultative examiner. (AR 104.) Dalton opined that “it appears both
17 initial and recon allegations were appropriately assessed initially and there is no change
18 in circumstance at recon.” (Id.) Thus, Dalton concluded that “a non-severe psych rating
19 appears reasonable, and initial findings . . . are adopted.” (Id.)
20 iv. Dr. Karine H. Khatchatrian and Mary Ellen Bennett, LCSW
21 On February 16, 2016, Plaintiff started receiving treatment from Psychiatric
22 Centers at San Diego (“PCSD”). (AR 623.) Plaintiff was seen by two practitioners at
23 PCSD, Dr. Karine H. Khatchatrian and Licensed Clinical Social Worker (“LCSW”) Mary
24 Ellen Bennett. (AR 569–75, 594–649, 664–72).
25 From February 16, 2016 to December 30, 2016, Plaintiff had over twenty sessions
26 with a therapist, Mary Ellen Bennett. (AR 594–622; 629–631; 636–641; 644–649; 664–
27 672.) At times, Plaintiff reported that her short-term memory was impaired and that she
28 was experiencing auditory hallucinations, including “hearing voices of children.” (AR
1 609, 616, 621.) She also was observed to suffer from a tangential thought process. (AR
2 598, 610, 613, 645.) On April 18, 2016, Plaintiff’s therapist reported that she agreed with
3 Dr. Chang’s opinion that Plaintiff was “too impaired to work as a nurse.” (AR 609.)
4 On September 21, 2016, Plaintiff had an initial psychiatric evaluation with Dr.
5 Khatchatrian. (AR 658.) Plaintiff reported that she was anxious, agitated, and hyper,
6 “jump[ing] from one activity to another but [] unable to finish any of them . . .” (AR 658,
7 660.) She also reported seeing passing shadows as well as experiencing paranoia, fleeting
8 suicidal ideation, ideas of reference, and panic attacks. (AR 658.) Dr. Khatchatrian
9 assessed Plaintiff’s appearance as appropriate, behavior as unremarkable, mood as
10 anxious, irritable, and hyper, and thought processes as showing a “flight of ideas.” (AR
11 660.) Dr. Khatchatrian observed that Plaintiff’s short-term memory was impaired, as
12 Plaintiff was unable to recall three words in 5 min. (Id.)
13 On October 5, 2016 Dr. Khatchatrian noted “moderate improvement” in Plaintiff’s
14 condition but observed that Plaintiff continued to present with an “impaired memory and
15 concentration,” “racing thoughts,” and an “anxious mood.” (AR 654.) Plaintiff also
16 demonstrated “less intense” paranoia. (Id.) By October 26, 2016, Dr. Khatchatrian
17 reported “good improvement” in Plaintiff’s condition. (AR 650.) Again, Plaintiff
18 continued to present an “irritable, hyper and anxious” mood, “impaired memory and
19 concentration,” and “racing thoughts.” (Id.) Plaintiff also exhibited “paranoia and visual
20 hallucinations (sees shadows).” (Id.) In subsequent visits on November 17, 2016,
21 December 8, 2016, and January 6, 2017, Dr. Khatchatrian noted “good improvement” in
22 Plaintiff’s condition. (AR 642, 632, 625.)
23 v. Vocational Expert’s Testimony
24 Vocational Expert (“VE”) Sonia Peterson also testified at the hearing. (AR 36, 73.)
25 She characterized Plaintiff’s vocational background as a general duty nurse at the
26 medium exertion level, with a Specific Vocational Preparation (“SVP”) of 7. (AR 48.)
27 The ALJ asked the VE for other jobs to which Plaintiff’s skills could transfer, and the VE
28 offered (a) home attendant at the medium level with an SVP of 3 and 800,000 jobs
1 available; (b) phlebotomist at the medium level with an SVP of 3 and 120,000 jobs
2 available; (c) hospital admitting clerk at the light level with an SVP of 4 and 80,000 jobs
3 available; and (d) cardiac telemetry at the light level with an SVP of 5 and 60,000 jobs
4 available. (AR 74–77.) The VE also suggested home attendant with an SVP of 3 and
5 “about 400,000 jobs nationally.” (AR 77–78.)
6 The ALJ posed various hypotheticals to the VE. First, he asked whether an
7 individual with the same age, education, and experience as Plaintiff, who “can perform at
8 the medium exertional level” but suffers from mental health issues such that they can
9 only perform work that requires simple or detailed tasks, but not complex tasks, could
10 perform Plaintiff’s past work as a nurse. (AR 78–79.) The VE answered no and opined
11 that this person could perform the other jobs, except the cardiac monitor. (AR 79.)
12 Next, the ALJ asked the VE whether the same person in the first hypothetical,
13 could perform the VE’s suggested jobs, excluding the jobs of home attendant and cardiac
14 monitor, if limited to “light exertion work.” (AR 79.) The VE said yes. (AR 79.)
15 Lastly, the ALJ asked the VE whether her evaluation would change if the
16 hypothetical person suffered from more severe mental health issues, resulting in one day
17 per week where they “are not giving conscientious work performance” and “where
18 they’re 30 percent off task.” (AR 79–80.) The VE responded “that person would not pass
19 a probationary period. So, there would be no work available.” (AR 80.)
20 Plaintiff’s attorney asked the VE how many days per month a person could miss
21 and retain their employment. (AR 80-81.) The VE replied that, assuming a job requires a
22 five-day work week, “missing two days a month consistently” would mean no work. (AR
23 81.) Finally, Plaintiff’s attorney asked the VE what her assessment would be if a person
24 was “consistently off task . . . at least 15 percent of the day.” (AR 81.) The VE answered
25 that such a person would not be able to work. (Id.)
26 C. The ALJ’s Decision
27 The ALJ applied the five-step sequential framework to determine that Plaintiff did
28 not have a disability within the meaning of the Social Security Act from June 30, 2014
1 through the date of the ALJ’s decision. (AR at 20–35.) At step one, the ALJ found that
2 Plaintiff had not engaged in substantial gainful activity since June 30, 2014. (AR at 22.)
3 At step two, the ALJ found that Plaintiff suffered from three severe impairments:
4 depression, anxiety, hypertension with kidney disease. (AR at 23.) At step three, the ALJ
5 found that Plaintiff did not have an impairment or combination of impairments that met
6 or medically equaled one of the impairments listed in the Commissioner’s Listing of
7 Impairments. (AR at 23–24.)
8 The ALJ further determined that Plaintiff had the residual functional capacity
9 (“RFC”) to “perform medium work . . . involving simple or detailed tasks but not jobs
10 involving complex tasks or decisions.” (AR at 24.) At step four, the ALJ found Plaintiff
11 was unable to perform her past relevant work. (AR at 28.) At step five, the ALJ
12 determined that Plaintiff could perform various jobs which exist in significant numbers in
13 the national economy, and thus was not disabled. (AR at 29.) These include a home
14 attendant, phlebotomist, hospital admitting clerk, and personal attendant. (AR at 29–30.)
15 II. Legal Standards
16 A. Standard of Review of Magistrate Judge’s R&R
17 The district court’s duties in connection with an R&R of a magistrate judge are set
18 forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge
19 must “make a de novo determination of those portions of the report . . . to which [an]
20 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings
21 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district
22 court need not review de novo those portions of an R&R to which neither party objects.
23 See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328
24 F.3d 114, 1121–22 (9th Cir. 2003) (en banc). When no objections are filed, the Court
25 may assume the correctness of the magistrate judge’s findings of fact and decide the
26 motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206
27 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).
28
1 Because no objections have been filed, the Court assumes the correctness of
2 Magistrate Judge Nita L. Stormes factual findings. See Campbell, 501 F.2d at 206.
3 B. Standard of Review of the Commissioner’s Decision
4 A court “will disturb the denial of benefits only if the decision contains legal error
5 or is not supported by substantial evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038
6 (9th Cir. 2008) (citations omitted). Substantial evidence is “such relevant evidence as a
7 reasonable mind might accept as adequate to support a conclusion.” Id. The “evidence
8 must be more than a mere scintilla but not necessarily a preponderance.” Connett v.
9 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). The court will uphold an
10 ALJ’s findings when the evidence is susceptible to more than one rational interpretation.
11 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Andrews v. Shalala, 53 F.3d
12 1035, 1039–40 (9th Cir. 1995)). “When evidence reasonably supports either confirming
13 or reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”
14 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (citing
15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
16 The court must consider the record as a whole, weighing both the evidence that
17 supports and detracts from the ALJ’s conclusions. Desrosiers v. Secretary of Health &
18 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). If the evidence is inconclusive,
19 “questions of credibility and resolution of conflicts in the testimony are functions solely
20 for the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting
21 Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)).
22 III. Analysis
23 For purposes of the Social Security Act, a claimant is disabled if she is unable “to
24 engage in any substantial gainful activity by reason of any medically determinable
25 physical or mental impairment which can be expected to result in death or which has
26 lasted or can be expected to last for a continuous period of not less than 12 months.” 42
27 U.S.C. § 423(d)(1)(A). The claimant carries the initial burden of proving disability. Id. at
28 § 423(d)(5); Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989).
1 Here, the ALJ found that Plaintiff was not disabled. (AR at 29–30.) Plaintiff
2 challenges that finding on two bases.2 First, Plaintiff argues that the ALJ failed to provide
3 clear and convincing reasons to reject her symptom testimony. (ECF No. 12 at 12–15.)
4 Second, Plaintiff argues that the ALJ failed to properly consider the opinions of her
5 treating physicians. (Id. at 15–19.) Based on a review of the record, this Court finds that
6 the ALJ committed harmless error in its treatment of Dr. Chang’s opinion, but that the
7 matter must nonetheless be remanded as the ALJ failed to provide clear and convincing
8 reasons for rejecting Plaintiff’s symptom testimony and failed to adequately develop the
9 record. See Garrison v. Colvin, 759 F.3d 995, 1015–16 (9th Cir. 2014).
10 A. The ALJ Improperly Rejected Plaintiff’s Symptom Testimony.
11 In deciding whether to accept a claimant’s subjective pain or symptom testimony,
12 an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
13 1996). First, the ALJ must assess “whether the claimant has presented objective medical
14 evidence of an underlying impairment ‘which could reasonably be expected to produce
15 the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
16 Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the
17 first test is met and there is no evidence of malingering, “the ALJ can reject the
18 claimant’s testimony about the severity of her symptoms only by offering specific, clear
19 and convincing reasons for doing so.” Smolen, 80 F.3d at 1281.
20 The ALJ determines “credibility, resolve[s] conflicts in the testimony, and
21 resolve[s] ambiguities in the record.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
22 1090, 1098 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must
23 identify what testimony is not credible and what evidence undermines the claimant’s
24 complaints.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting
25
26
27 2 Plaintiff styles his motion for summary judgment as containing three separate arguments. (ECF No.
12.) However, as Plaintiff’s one-paragraph argument articulation makes clear, Section I is merely an
28
1 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). The decision “must contain
2 specific reasons for the finding on credibility, supported by the evidence in the case
3 record, and must be sufficiently specific to make clear to . . . any subsequent reviewers
4 the weight the adjudicator gave to the individual’s statements and the reasons for that
5 weight.” Id. (emphasis in original) (quotations omitted); see also Lester v Chater, 81 F.3d
6 821, 834 (9th Cir. 1995) (“General [credibility] findings are insufficient; rather, the ALJ
7 must identify what testimony is not credible and what evidence undermines the
8 claimant’s complaints.”); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (“[An ALJ]
9 must state which pain testimony is not credible and what evidence suggests the
10 complaints are not credible.”); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)
11 (noting that the ALJ must provide “specific, cogent reasons for the disbelief” when it
12 rejects the claimant’s complaints”).
13 While “an ALJ may not reject a claimant’s subjective complaints based solely on a
14 lack of medical evidence to fully corroborate the alleged severity of pain . . . it is a factor
15 that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676,
16 680 (9th Cir. 2005). The ALJ “[m]ay consider a range of factors in assessing credibility,
17 including (1)‘ordinary techniques of credibility evaluation, such as the claimant’s
18 reputation for lying, prior inconsistent statements concerning the symptoms, and other
19 testimony by the claimant that appears less than candid; (2) unexplained or inadequately
20 explained failure to seek treatment or to follow a prescribed course of treatment; and (3)
21 the claimant’s daily activities.’” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
22 (quoting Smolen, 80 F.3d at 1284).
23 Here, Plaintiff alleges a variety of mental impairments stemming from depression,
24 stress and anxiety, including difficulty with her concentration, memory and auditory
25 hallucinations. (AR 281, 284–85, 561, 597–98, 609–615, 654, 660.) After reviewing
26 Plaintiff’s testimony and medical record, the ALJ found “that the claimant’s medically
27 determinable impairments could reasonably be expected to cause the alleged symptoms.”
28 (AR 25); Lingenfelter, 504 F.3d at 1036. The ALJ then rejected Plaintiff’s symptom
1 testimony, finding that Plaintiff’s “statements concerning the intensity, persistence and
2 limiting effects of these symptoms [were] not entirely consistent with the medical
3 evidence and other evidence in the record.” (AR 25.)
4 Therefore, the Court must determine whether the ALJ supplied clear, specific and
5 convincing reasons for disregarding Plaintiff’s subjective testimony. See Lingenfelter,
6 504 F.3d 1036. In analyzing the ALJ’s opinion and the Magistrate’s R&R, the ALJ
7 appears to reject Plaintiff’s symptom testimony for three reasons: (i) that Plaintiff’s
8 symptom testimony is not supported by the medical record; (ii) that Plaintiff’s symptom
9 testimony is inconsistent with her activities of daily living; and (iii) that Plaintiff’s
10 symptom testimony is not to be believed because she did not seek psychiatric treatment
11 prior to 2016. In light of the record below and the applicable law, the Court finds that
12 these reasons are not clear, specific, and compelling, and remands for further analysis
13 consistent with this Order.
14 i. Medical Record
15 In determining Plaintiff’s RFC and rejecting Plaintiff’s symptom testimony that
16 was presented on December 8, 2017, the ALJ summarized the “opinion evidence” and
17 failed to identify specific statements from Plaintiff’s testimony or functional report that
18 were not credible. (AR 26–28); (see also ECF No. 21 at 12–13 (describing the ALJ’s
19 summary of the medical record)). “An ALJ’s vague allegation that a claimant’s testimony
20 is not consistent with the objective medical evidence, without any specific findings in
21 support of that conclusion, is insufficient . . .” Treichler, 775 F.3d at 1103 (internal
22 quotations and citation omitted). “The ALJ must identify the testimony that was not
23 credible, and specify what evidence undermines the claimant’s complaints.” Id. (citing
24 Reddick, 157 F.3d at 722 (internal quotations omitted)). Given the ALJ’s failure to
25 identify specific statements in Plaintiff’s testimony as incredible, the ALJ’s summary of
26 the medical record and opinion evidence here are legally insufficient to discount
27 Plaintiff’s credibility. See, e.g., Stone v. Saul, No. 2:18-CV-02862-CKD, 2020 WL
28
1 1332946, at *6 (E.D. Cal. Mar. 23, 2020) (finding ALJ’s general summary of the medical
2 record inadequate).
3 The Court, nonetheless, considers the weight of the evidence as it is a “relevant
4 factor.” Black v. Comm’r of Soc. Sec. Admin., 433 F. App’x 614, 616 (9th Cir. 2011)
5 (citing Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)). Here, Plaintiff’s
6 symptom testimony is undermined by some portions of the medical record and supported
7 by others. On one hand, the medical record from December 2, 2015 and March 2, 2016
8 shows that three doctors – one doctor who assessed Plaintiff’s functional limitations, and
9 two others who reviewed her records – concurred that Plaintiff had only mild limitations
10 resulting from her mental impairment. After examining Plaintiff on December 2, 2015,
11 Dr. Greytak, for example, opined that Plaintiff was mildly impaired as to her ability to
12 “do detailed and complex instructions,” “relate and interact with co-workers and public,”
13 “maintain concentration and attention, persistence and pace,” “associate with day-to-day
14 work activity, including attendance and safety,” “accept instructions from supervisors,”
15 “maintain regular attendance in the work place and perform work activities on a
16 consistent basis,” and “perform work activities without special or additional supervision.”
17 (AR 548–49.) Dr. Greytak also found that Plaintiff had no impairment as to her ability to
18 “understand, remember, and carry out simple one or two-step job instructions.” (AR 548.)
19 Two psychiatrists from the Social Security Administration who reviewed Plaintiff’s
20 medical records, Dr. Lee Reback and Dr. Brady Dalton, concurred with Dr. Greytak as to
21 Plaintiff’s functional limitations. (AR 92, 103–05.)
22 On the other hand, there is a significant amount of evidence that followed the
23 December 2015 evaluation which corroborates Plaintiff’s testimony. First, there are the
24 opinions of Dr. Chang, Plaintiff’s primary care doctor. Dr. Chang opined on four separate
25 occasions that Plaintiff was could not, or should not, be working. On February 24, 2016,
26 for example, Dr. Chang opined that Plaintiff was dealing,
27 “with significant emotional stress and depression . . . She clearly is not able
to work due to the emotional and mental stress. This is inhibiting her ability
28
1 to concentrate. She works as a nurse and this will clearly affect her ability to
perform work as a nurse as concentration is required to avoid medication
2
errors . . . Given her current situation I agree that she should not work . . .”
3
(AR 576.) Six weeks prior, on January 11, 2016, Dr. Chang similarly opined that
4
Plaintiff, “is suffering from major depressive disorder . . . [It] has been interfering with
5
her sleep and she has been having difficulty concentrating. At this time, she is clearly not
6
able to work or function because of the mental illness and how it affects her thought
7
process.” (AR 568.) One month before that, on December 10, 2015, Dr. Chang also
8
opined that Plaintiff “is clearly suffering major depressive disorder. It is interfering with
9
her sleep and she is having difficulty concentrating. She is clearly not able to function or
10
work at this time due to her condition.” (AR 564.) Even as early as September 22, 2015,
11
Dr. Chang had opined that Plaintiff “ha[d] not been able to work due to job stress” and
12
was “totally disabled.” (AR 581.)
13
Plaintiff’s symptom testimony also derives support from the 2016 treatment notes
14
of LCSW Mary Ellen Bennett, even if her opinion as a licensed social worker is entitled
15
to less deference than that of a medical doctor. See Giese v. Barnhart, 55 F. App’x 799,
16
800–01 (9th Cir. 2002; Casner v. Colvin, 958 F. Supp. 2d 1087, 1097 (C.D. Cal. 2013).
17
LCSW Bennett maintained diagnoses of depressive and anxiety disorders throughout
18
Plaintiff’s treatment, regularly noted that Plaintiff struggled to manage the stressors in her
19
life, and repeatedly found no change or improvement in Plaintiff’s “mental status”
20
throughout 2016. (AR 569–75, 594–649, 664–72).
21
Ultimately, the Court finds that the disparity between Plaintiff’s testimony and the
22
contradictory evidence in the medical record does not entitle the ALJ to discredit Plaintiff
23
entirely. First, Dr. Greytak’s medical examination, Dr. Dalton’s opinion, and Dr.
24
Reback’s opinion all took place more than two years before the ALJ’s hearing and well
25
before Plaintiff began therapy. Further, an “ALJ may not reject a claimant’s subjective
26
complaints based solely on a lack of medical evidence . . .” Burch, 400 F.3d at 680 (citing
27
Bunnell, 947 F.2d at 345); Light v. Social Security Administration, 119 F.3d 789, 792 (9th
28
1 Cir. 1997) (“[A] finding that the claimant lacks credibility cannot be premised wholly on
2 a lack of medical support for the severity of his pain”); Social Security Ruling (SSR) 16–
3 3p (S.S.A. Oct. 25, 2017) (stating that SSA adjudicators should “not disregard an
4 individual’s statements about the intensity, persistence, and limiting effects of symptoms
5 solely because the objective medical evidence does not substantiate the degree of
6 impairment-related symptoms alleged by the individual”). Instead, an ALJ’s decision to
7 discount symptom testimony must be predicated on more “specific reasons.” Brown-
8 Hunter v. Colvin, 806 F.3d 487, 493–94 (9th Cir. 2015). Consequently, the Court rejects
9 the ALJ’s reliance on the medical record and finds that it is not a clear, specific, and
10 convincing reason for rejecting Plaintiff’s symptom testimony. Burch, 400 F.3d at 680.
11 ii. Daily Activities
12 In addition to relying on the “opinion evidence,” the ALJ also asserts that “the
13 claimant’s reported activities” support his RFC determination and implicitly contradict
14 Plaintiff’s symptom testimony. (AR 28.) The Magistrate Judge concurs, finding that the
15 ALJ properly “addressed inconsistencies between Plaintiff’s reported disabilities and her
16 self-reported activities of daily living, when assessing the credibility of her subjective
17 testimony.” (ECF No. 21 at 15.) The Court, however, disagrees. Upon a review of the
18 record, the Court finds that the ALJ mischaracterized Plaintiff’s symptom testimony and
19 then erroneously concluded that Plaintiff’s symptoms were inconsistent with her
20 activities of daily life.
21 The ALJ refers to various specific activities of daily living. The ALJ notes, for
22 example, that Plaintiff “engages in gardening, some television watching, and cooking,”
23 and “is able to do grocery shopping.” (AR 25.) The ALJ also recognizes that Plaintiff’s
24 “son had been released to [her] custody following a suicide attempt” and that she now
25 “provide[s] care to” him. (AR 26.) The ALJ also mentions that Plaintiff “continued to
26 travel to see family members and spend time with others.” (AR 26.)
27 In providing these descriptions, however, the ALJ ignores testimony necessary to
28 understand the scope of Plaintiff’s activities. See Garrison v. Colvin, 759 F.3d 995, 1016
1 (9th Cir. 2014) (finding ALJ’s selective presentation of daily activities was erroneous for
2 failing to note plaintiff had to rest between activities, needed help to do the activities, and
3 could not always complete the activities given her pain). In Plaintiff’s functional report,
4 she offers limitations similar to those in Garrison. For example, Plaintiff states that she
5 needs reminders to conduct some of her daily activities, including showering and taking
6 medicine. (AR 280.) She submits that she spends only “an hour or two” daily on
7 cleaning, laundry, ironing, and cooking, and that she “easily get[s] tired” doing her
8 housework. (AR 280–81.) She limits her grocery shopping to one to two hours per week.
9 (AR 282.) She also states that she needs to rest for 10 to 20 minutes after walking every
10 100 to 200 feet, and that she cannot concentrate for more than 20 to 30 minutes at a time
11 during her housework. (AR 284.) At the hearing, Plaintiff added that her gardening is
12 limited to watching and talking to her plants and that the local grocery store, Sprouts, is
13 only five minutes away. (AR 57–58, 65–66.)3 She affirmed that she cannot walk “so far,”
14 has limitations “driving or thinking or walking,” and only “sometimes” drives. (AR 61.)
15 The ALJ has not addressed these limitations to Plaintiff’s daily activities, (AR 23–
16 28), and has not offered specific, clear and convincing reasons for disregarding them.
17 Smolen, 80 F.3d at 1281. At certain points, the record directly contradicts the ALJ
18 findings. The ALJ, for example, states repeatedly that “claimant identified no difficulties
19 engaging in personal care, preparing simple meals, doing laundry and ironing, cleaning,
20 driving, managing finances, and maintaining contact with family.” (AR 24.) But, as
21
22
3 Notably, though the ALJ does not cite this as a reason to disregard Plaintiff’s symptom testimony,
23 Plaintiff’s testimony changes slightly as to gardening. In her functional report, Plaintiff answers
“cooking favorite menu & gardening” in response to question 10, “What were you able to do before
24
your illnesses, injuries, or conditions that you can’t do now?”. (AR 280.) At the hearing, she testifies
25 that she is “still doing gardening,” but that she only “talk[s] to [her] plants [and her] flowers basically.”
(AR 57.) This contradiction is not so glaring as to persuade the Court that Plaintiff lacks credibility. Cf.
26 Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010) (discrediting plaintiff for claiming
his “back pain limited his ability to stand, sit and walk,” and then testifying to working on a ranch by
27 “building fences, running a tractor, feeding cattle, and laying irrigation waterlines”). In any event, the
Court is “constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874
28
1 noted, Plaintiff’s functional report and testimony reveal limitations as to the time, energy,
2 and focus which she can devote to those activities.
3 The ALJ’s conclusion is also erroneous because Plaintiff’s activities are consistent
4 with her symptom testimony. The Ninth Circuit’s caselaw is clear that “if a claimant is
5 able to spend a substantial part of [her] day engaged in pursuits involving the
6 performance of physical functions that are transferable to a work setting,” the ALJ may
7 be justified in disregarding the claimant’s symptom testimony. Fair v. Bowen, 885 F.2d
8 597, 603 (9th Cir. 1989) (emphasis added); accord Fritz v. Berryhill, 685 F. App’x 585,
9 586 (9th Cir. 2017); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001); Morgan v.
10 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). On the other hand, the
11 fact that a Plaintiff regularly engages in some activity does not disprove a disability.
12 Smolen, 80 F.3d at 1287 n.7 (“The Social Security Act does not require that claimants be
13 utterly incapacitated to be eligible for benefits . . .”). No court should penalize claimants
14 “for attempting to lead normal lives in the face of their limitations,” Reddick, 157 F.3d at
15 722, especially where they do so “for therapeutic reasons.” Vertigan, 260 F.3d at 1050.
16 Here, Plaintiff’s regular, daily activities fit precisely into this category. The ability
17 to spend “an hour or two” per day on cleaning, laundry, ironing, and cooking, to engage
18 in daily gardening where Plaintiff merely “talk[s] to [the] plants,” to occasionally drive a
19 car to a grocery store located five minutes away, and to otherwise speak with family over
20 the phone, or watch television regularly, are consistent with the symptoms that Plaintiff
21 describes in her testimony and functional report. (AR 56–65, 280–82.) Outside of the
22 television watching and phone calls, and in light of Plaintiff’s stated limitations,
23 Plaintiff’s daily activities do not appear to take up a “substantial” part of her day,
24 Vertigan, 260 F.3d at 1049, and it is not clear from the description of Plaintiff’s activities
25 of daily living that she could accomplish similar tasks in the workplace. Fair, 885 F.2d at
26 603 (“[M]any home activities are not easily transferable to what may be the more
27 grueling environment of the workplace, where it might be impossible to periodically rest
28 or take medication”). Plaintiff’s activities of daily living, moreover, align with the
1 activities recommended to Plaintiff to aid in her recuperation. (AR 603, 627, 634.) Even
2 Plaintiff’s ill-advised decision to visit a casino does not undermine her credibility
3 altogether because that single trip was “not performed consistently” and does not “mirror
4 the demands of a full-time job.” Meier v. Astrue, 404 F. App’x 150, 152 (9th Cir. 2010)
5 (finding ALJ’s rejection of claimant’s testimony was erroneous even where claimant
6 “occasionally engage[d] in more strenuous activities such as lifting bags of salt and
7 garbage and shoveling snow” because those activities were intermittent). Accordingly,
8 the supposed inconsistencies between Plaintiff’s daily activities and her testimony do not
9 satisfy the requirement of a clear, specific, and convincing reason to discredit her
10 symptom testimony. Smolen, 80 F.3d at 1281; see Smith v. Berryhill, 704 F. App’x 652,
11 653 (9th Cir. 2017) (“The ALJ did not make findings as to the pervasiveness of these
12 activities, what they entailed, or how the physical functions displayed during the
13 activities are transferrable to a work setting.”)
14 The Court observes, moreover, that the ALJ’s special reliance on Plaintiff’s
15 childcare responsibilities, among other daily activities, is misplaced. Discussing one of
16 Plaintiff’s daily activities, the ALJ emphasizes that Plaintiff “retained [the] ability to
17 provide care to at least her son . . . [which] indicates [a] retained capacity to function in
18 other vocational aspects of caregiving.” (AR 26.) Plaintiff, however, does not explain,
19 nor does the ALJ elicit testimony on, what conduct or skills Plaintiff displays in caring
20 for her son that would be transferable to a role in “caregiving.” In other words, there is
21 nothing in the record to indicate exactly what it is that Plaintiff does “to provide care to”
22 her son. (AR 576); cf. Sapp v. Berryhill, No. 8:18-00077-ADS, 2019 WL 1877446, at *2,
23 *9 (C.D. Cal. Feb. 22, 2019) (affirming ALJ’s reliance on plaintiff’s daily activity of
24 childcare for a two-year-old infant where plaintiff was “alone with him most of the time
25 during the day” and the record included more detail as to what was entailed in his care);
26 see also Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) (“Absent specific details
27 about Trevizo’s childcare responsibilities, those tasks cannot constitute substantial
28 evidence . . .”) (citation omitted). Consequently, because “the ALJ must make [a] specific
1 finding relating the transferability of the daily activities to a work setting in order to
2 conclude that the claimant’s daily activities warrant an adverse credibility
3 determination,” the Court finds that Plaintiff’s undefined and seemingly temporary
4 responsibility to care for her 24-year-old son, (AR 236), does not provide a specific,
5 clear, and convincing reason for disregarding Plaintiff’s testimony. Froom v. Colvin, No.
6 12-CV-276-JLS, 2013 WL 3780155, at *12 (S.D. Cal. July 18, 2013) (citing Orn v.
7 Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Gonzalez v. Sullivan, 914 F.2d 1197, 1201
8 (9th Cir. 1999)).
9 Lastly, contrary to the Magistrate’s conclusion, the Court is not persuaded that the
10 precedents cited by the Commissioner – Stubbs-Danielson and Morgan – compel a
11 different conclusion here. (ECF No. 21 at 17.) As the Magistrate Judge notes, the Ninth
12 Circuit in Stubbs-Danielson found that “normal activities of daily living, including
13 cooking, house cleaning, doing laundry, and helping her husband in managing finances . .
14 . suggest[ed] that the claimant may still be capable of performing the basic demands of
15 competitive, remunerative, unskilled work on a sustained basis.” Stubbs-Danielson v.
16 Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). And, though the Ninth Circuit’s brief
17 reasoning in Stubbs-Danielson fails to cite a single case for the applicable standard,
18 Morgan makes clear that such a conclusion requires an implicit finding that the plaintiff
19 “spen[t] a substantial part of his day engaged in” those activities and that those activities
20 entailed “physical functions that are transferable to a work setting.” Morgan v. Comm’r
21 of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). For the foregoing reasons, the
22 Court cannot make that “specific finding” here as the record does not show that
23 Plaintiff’s activities of daily living constitute a substantial part of her day. Id.; Vertigan,
24 260 F.3d at 1049.
25 iii. Failure to Seek Treatment
26 The ALJ also rejects Plaintiff’s symptom testimony because she did not seek
27 psychiatric treatment prior to 2016. After summarizing Plaintiff’s “[p]sychiatric treatment
28 records,” the ALJ commented that Plaintiff’s “lack of reported problems prior to 2016
1 suggest caution in finding significant persistent issues.” (AR 27.) In concluding the RFC
2 analysis, the ALJ again noted “the limited and conservative treatment record as to both
3 physical and mental impairments.” (AR 28.) Though the Magistrate Judge did not issue a
4 separate recommendation on this reason, it is cited in the R&R’s discussion of the
5 medical record as a reason to affirm the ALJ. (ECF No. 21 at 14.)
6 The Court finds that the ALJ’s conclusion is not compelling because the ALJ does
7 not address Plaintiff’s explanation for not seeking treatment earlier – an inability to
8 process her mental impairment. Certainly, “a claimant’s failure to assert [a reason for not
9 seeking treatment], or a finding by the ALJ that the proffered reason is not believable,
10 can cast doubt on the sincerity of the claimant’s pain testimony.” Fair v. Bowen, 885 F.2d
11 597, 603 (9th Cir. 1989). And, courts are less likely to credit a plaintiff who only seeks
12 treatment “after she applied for disability benefits” or whose “resistance [to seeking
13 treatment] was attributable . . . her own personal preference” rather than her “mental
14 impairment.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012).
15 However, “[w]here a claimant provides evidence of a good reason for not taking
16 medication for her symptoms, her symptom testimony cannot be rejected for not doing
17 so.” Smolen, 80 F.3d at 1284. Courts have found a number of reasons adequate in this
18 context. See, e.g., Smith, 704 F. App’x at 653 (declining to take medication with which
19 plaintiff had previously attempted to commit suicide); Smolen, 80 F.3d at 1284 (declining
20 to seek treatment because plaintiff did not have insurance and thus could not afford
21 treatment). The Ninth Circuit, moreover, counsels against discrediting Plaintiffs with
22 mental impairments for failing to proactively seek treatment. See Schiaffino v. Saul, No.
23 18-35853, 2020 WL 110527, at *2 (9th Cir. Jan. 9, 2020) (“[I]t is a questionable practice
24 to chastise one with a mental impairment for the exercise of poor judgment in seeking
25 rehabilitation.”); Crose v. Berryhill, 737 F. App’x 333, 335 (9th Cir. 2018) (same);
26 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“depression is one of the most
27 underreported illnesses in the country because those afflicted often do not recognize that
28 their condition reflects a potentially serious mental illness . . . that claimant may be one
1 of millions of people who did not seek treatment for a mental disorder until late in the
2 day is not a substantial basis” to discount the claimant’s testimony);
3 Here, Plaintiff adequately explains her reasoning for failing to seek treatment prior
4 to December 2015, and the ALJ does not reject Plaintiff’s “proffered reason.” Fair, 885
5 F.2d at 603. As Dr. Chang notes following Plaintiff’s December 10, 2015 visit, Plaintiff
6 had not been “open about her overall medical condition” prior to that date, and was only
7 able to express “the extent of the stress and how it been affecting her [at that] visit.” (AR
8 561.) At Plaintiff’s January 11, 2016 visit, Dr. Chang again remarked that Plaintiff was
9 tearful and depressed, “like she was keeping secrets,” and was only recently “more open
10 about her overall condition.” (AR 565.) Plaintiff’s own testimony at her hearing before
11 the ALJ corroborates Dr. Chang’s observations, i.e., that Plaintiff was unable to
12 adequately process her mental impairment and did not recognize she needed treatment:
13 [ALJ] When did you first tell [Dr. Chang] this?
[Plaintiff] I forgot. He said, [Plaintiff], I’ve known you for 20 years. What’s going
14
on with you? And then I told him, I’m sorry to say, but I think -
15 [ALJ] Okay. But it took a while for you to even tell your primary care doctor
about those issues.
16
[Plaintiff] Yeah. He was mad. He said, [Plaintiff], I know you for how many years
17 [ALJ] Well, sometimes, people feel ashamed. Maybe --
[Plaintiff] Yeah. That’s --
18
[ALJ] you felt embarrassed or ashamed.
19 [Plaintiff] what I say.
[ALJ] There’s no reason to, but people sometimes feel that way.
20
[Plaintiff] Yeah. And then I told my history of my family.
21 [ALJ] Okay. I understand.
22 (AR 65.) This passage is doubly instructive as it also shows that the ALJ himself
23 understood Plaintiff’s reasoning for failing to seek treatment. And, despite this
24 understanding, Plaintiff’s own statements, and the medical record, the ALJ nonetheless
25 did not even consider Plaintiff’s reasoning, much less reject it. (AR 24–29.)
26 Furthermore, the record presents additional indicia of reliability for Plaintiff’s
27 belated effort to seek treatment of her mental problems. First, there is what Dr. Chang
28 described as the “very strong family history of mental illness.” (AR 568.) Plaintiff’s sister
1 “suffered from severe major depression” and committed suicide. (AR 561.) Plaintiff’s
2 children also suffer from mental health issues: her eldest daughter takes “psychiatric
3 meds” and suffers from “major depression”; her son was diagnosed with schizophrenia;
4 and her youngest daughter takes “medication for major depression.” (AR 65, 230, 565,
5 574, 629.) Plaintiff had earlier withheld this information, just as she had her own mental
6 struggles, out of embarrassment, shame and denial. (AR 64.)
7 In addition, the events leading to Plaintiff’s departure from work demonstrate her
8 ongoing mental health issues, including her difficulty with concentration and memory
9 loss, and denial about her impairment. In 2014, Plaintiff was accused of making a
10 mistake while treating a patient. (AR 45–46.) Plaintiff denied making the mistake but, in
11 the aftermath, found herself consumed with the fear that she “might accidently kill
12 someone” if she returned to work as a nurse. (AR 46, 664.) Though at odds with the
13 Plaintiff’s denial of responsibility for making any mistake, this fear reflects the
14 depression and anxiety that the ALJ accepted as severe mental impairments. (AR 23.)
15 Consequently, as Plaintiff’s reasoning for delaying treatment is plausible in light of
16 her background and history, and the ALJ does not address it, the Court finds that
17 Plaintiff’s alleged failure to seek medical treatment earlier is not a specific, clear, and
18 convincing reason for disregarding Plaintiff’s testimony.4 Smolen, 80 F.3d at 1284.
19 B. The ALJ Improperly Rejected Plaintiff’s Husband’s Testimony.
20 “In determining whether a claimant is disabled, an ALJ must consider lay witness
21 testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050,
22
23
24
4 In addition, given the ALJ’s characterization of Plaintiff’s treatment as “limited and conservative”
25 prior to 2016, it bears noting that her treatment was not comparably “limited and conservative” in 2016
or 2017. From December 2015 to October 2017, Plaintiff was prescribed multiple medications to
26 address her diagnosed mental impairments, including Sertraline (i.e., Zoloft), Risperidone, Alprazolam,
Oxcarbazepine (i.e., Trileptal). (AR 267, 270–71, 572, 647.) The Court finds her treatment relevant to
27 the ALJ’s conclusion here. See Drawn v. Berryhill, 728 F. App’x 637, 642 (9th Cir. 2018) (rejecting
ALJ’s characterization of plaintiff’s treatment as “limited and conservative” where she “she was
28
1 1053 (9th Cir. 2006); see also 20 C.F.R. §§ 404.1513(d)(4). Such testimony is competent
2 evidence and “cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d
3 1462, 1467 (9th Cir. 1996). If an ALJ disregards the testimony of a lay witness, the ALJ
4 must provide reasons “that are germane to each witness.” Id. Germane reasons must be
5 sufficiently specific. Stout, 454 F.3d at 1054 (explaining that “the ALJ, not the district
6 court, is required to provide specific reasons for rejecting lay testimony”).
7 Here, the ALJ erred in rejecting Mr. Contreras’s testimony.5 Mr. Contreras offered
8 lay witness testimony twice in the record, first in his initial functional report dated
9 October 25, 2015, (AR 292–99), and then again via a signed letter dated November 5,
10 2017. (AR 591.) Mr. Contreras’s functional report largely mirrors Plaintiff’s own report,
11 and as such corroborates her symptom testimony. (Compare AR 279–87 with AR 292–
12 99.) Mr. Contreras’s letter repeats some of the same symptoms as the two functional
13 reports – e.g., anxiety, memory issues, lack of sleep, difficulty concentrating, loss of
14 interest – and also alleges additional symptoms, including “[t]houghts of suicide . . .” and
15 “recurrent and intrusive recollections of a traumatic experience from her former
16 employer,” found elsewhere in the record. (AR 68, 591, 658.) The ALJ assigned “little
17 weight” to Mr. Contreras’s statements for three reasons: his relationship to the Plaintiff,
18 the alleged lack of support in the medical record, and the ALJ’s perception that Mr.
19 Contreras’s exaggerated Plaintiff’s symptoms given her own testimony. (AR 28.)
20 The ALJ’s first two proffered reasons for dismissing Mr. Contreras’s testimony are
21 not “germane” to the witness. First, the ALJ states that Mr. Contreras’s “assessment of
22 [Plaintiff’s] limitations appears exaggerated given the objective medical evidence . . .” in
23 the record. (AR 28.) However, “[c]ontradictory medical evidence is not a germane reason
24
25
5 Contrary to Defendant’s assertion, this argument is not waived. (ECF No. 16-1 at 11.) Plaintiff relies
26 on Mr. Contreras’s statements, Defendant objects to Plaintiffs’ reliance on them, and the Magistrate
discusses the ALJ’s treatment of the statements. (Id.; ECF No. 12 at 12; ECF No. 21 at 18–19.)
27 Consequently, because the Parties have sufficiently addressed the issue, the Court considers this “simple
and straightforward question of law” ripe for adjudication. See Thompson v. Runnels, 705 F.3d 1089,
28
1 to reject lay witness testimony.” Burns v. Berryhill, 731 F. App’x 609, 613 (9th Cir.
2 2018); Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017) (finding that a lack of
3 support from the “overall medical evidence” is also not a proper basis for disregarding
4 lay testimony); Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (“Nor under our law
5 could the ALJ discredit [the witness’s] lay testimony as not supported by medical
6 evidence in the record.”). Moreover, much of Mr. Contreras’s reported memory issues,
7 lack of sleep, anxiety, and difficulties concentrating are accepted and parroted by Dr.
8 Chang, Dr. Khatchatrian, and LCSW Bennett. (AR 576, 609, 615, 658.)
9 The ALJ also impermissibly asserts that Mr. Contreras’s statements “are not from
10 an unbiased individual nor a medical source.” (AR 28.) That inference is plainly based on
11 Mr. Contreras’s marital relationship to the Plaintiff, and a familial relationship is not a
12 “germane” reason to dismiss lay testimony. See Bruce v. Astrue, 557 F.3d 1113, 1115–16
13 (9th Cir. 2009) (finding that an ALJ gave “inadequate reasons for rejecting the wife’s lay
14 opinion testimony”); Diedrich, 874 F.3d at 640 (finding that claimant’s close relationship
15 with her fiancé was not a germane reason to discount the weight of his observations).
16 Afterall, “regardless of whether they are interested parties, friends and family members in
17 a position to observe a claimant’s symptoms and daily activities are competent to testify
18 as to his or her condition.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th
19 Cir. 2009) (internal quotation marks omitted); Dodrill v. Shalala, 12 F.3d 915, 918–19
20 (9th Cir. 1993). And, an ALJ’s “rejection of the testimony of [the claimant’s] family
21 members because [the claimant’s] medical records did not corroborate her” subjective
22 testimony “violates SSR 88–13, which directs the ALJ to consider the testimony of lay
23 witnesses where the claimant’s alleged symptoms are unsupported by her medical
24 records.” Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) (emphasis in original);
25 see also 20 C.F.R. § 404.1513(d)(4) (stating that evidence provided by lay witnesses may
26 be used to show “the severity of [a claimant’s] impairment(s) and how it affects [the
27 claimant’s] ability to work”).
28
1 Lastly, the ALJ also erred in dismissing Mr. Contreras’s lay testimony on the basis
2 that it is inconsistent with Plaintiff’s statements that she has “an ability to engage in
3 gardening and hobbies,” and that “she has cared for her adult son when he needed care.”
4 (AR 28.) First, these activities are not discussed in Mr. Contreras’s November 5, 2017
5 letter and, second, Mr. Contreras’s functional report does not deny that Plaintiff engages
6 in those activities. (AR 292–99, 591.) Likewise, Mr. Contreras’s assertion that Plaintiff
7 engages in “patio/yard cleaning” does not contradict Plaintiff’s assertion that she engages
8 in limited gardening consisting mostly of looking at her flowers and plants. (AR 281,
9 294.) The two are compatible and not inconsistent. Consequently, the ALJ’s assertion
10 that Mr. Contreras’s functional report is inconsistent with Plaintiff’s testimony is based
11 on a misreading of the record and cannot serve as a “germane” to dismiss his statements.
12 C. The ALJ Improperly Disregarded Some of the Opinion Evidence.
13 Lastly, the Parties dispute whether the ALJ’s conclusion that Plaintiff is not
14 disabled lacks substantial evidence. Specifically, Plaintiff argues that the ALJ disregarded
15 the opinions of “Dr. Chang and the treaters at PCSD,” which include LCSW Bennett and
16 Dr. Khatchatrian, without providing a specific reason for doing so. (ECF No. 12 at 17;
17 ECF No. 20 at 5–6.) The Commissioner contends that the ALJ’s analysis is adequate.
18 (ECF No. 16 at 20–25.) Here, the Court finds that the ALJ’s analysis of Dr. Chang’s
19 medical opinions lacked necessary specificity and failed to account for his assertions that
20 Plaintiff could not work.
21 i. Legal Standard for Rejecting Conflicting Medical Opinions
22 Courts distinguish between three types of physicians who may provide medical
23 opinions in a social security case: “(1) those who treat the claimant (treating physicians);
24 (2) those who examine but do not treat the claimant (examining physicians); and (3) those
25 who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater,
26 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the
27 opinion of a treating source than to the opinion of doctors who do not treat the claimant.”
28 Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). While the opinion of a
1 treating physician is thus entitled to greater weight than that of an examining physician,
2 the opinion of an examining physician is entitled to greater weight than that of a non-
3 examining physician. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
4 A treating physician’s medical opinion is given controlling weight where it “is
5 well-supported by medically acceptable clinical and laboratory diagnostic techniques and
6 is not inconsistent with the other substantial evidence in your case record . . .” 20 C.F.R.
7 § 404.1527. If a treating or examining doctor’s opinion is contradicted by another
8 doctor’s opinion, an ALJ may reject it by providing specific and legitimate reasons that
9 are supported by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
10 2014) (citing Ryan, 528 F.3d at 1198). “The ALJ can meet this burden by setting out a
11 detailed and thorough summary of the facts and conflicting clinical evidence, stating his
12 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751
13 (9th Cir. 1989) (quotation omitted). In other words, the ALJ “must do more than state
14 conclusions. He must set forth his own interpretations and explain why they, rather than
15 the doctors’, are correct.” Reddick, 157 F.3d at 725. (citation omitted). The need for a
16 specific and legitimate reason reflects a recognition that the treating or examining
17 physician’s opinion is still owed deference and will often be “entitled to the greatest
18 weight . . . even if it does not meet the test for controlling weight.” Orn v. Astrue, 495
19 F.3d 625, 633 (9th Cir. 2007).
20 Where an ALJ does not explicitly reject a medical opinion or set forth specific,
21 legitimate reasons for crediting one medical opinion over another, the ALJ commits error.
22 See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). “In other words, an ALJ errs
23 when he rejects a medical opinion or assigns it little weight while doing nothing more
24 than ignoring it, asserting without explanation that another medical opinion is more
25 persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis
26 for his conclusion.” Garrison, 759 F.3d at 1012–13.
27
28
1 ii. The ALJ’s Treatment of Dr. Chang, Dr. Khatchatrian, and LCSW
2 Bennett’s Opinions
3 The ALJ begins his discussion of Dr. Chang’s medical opinions by referring
4 explicitly to a letter dated September 22, 2015 that Plaintiff sent to Dr. Chang to
5 complete. (AR 27, 581.) There, in response to the questions “Am I totally disabled from
6 doing my job as a nurse?” and “If so, have I been disabled since June 2014?”, Dr. Chang
7 states, “Yes, unfortunately you have not been able to work due to job stress.” (AR 581.)
8 The ALJ attributes “little weight” to Dr. Chang’s opinion because it “falls short of a
9 detailed vocational assessment.” (AR 27.) As the September 22, 2015 letter “is
10 conclusory and brief and unsupported by clinical findings,” the Court finds that the ALJ
11 did not err in rejecting it. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)
12 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); accord Burrell v.
13 Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014).
14 However, at the same time, the ALJ’s cursory review of Dr. Chang’s other medical
15 opinions fails to account for the gravamen of his concerns and expressly address other,
16 relevant portions of the record. (AR 27.) For example, the ALJ broadly cites to Exhibits
17 1F, 16F, 8F, and 9F in asserting that his RFC determination “is based upon the claimant’s
18 overall records and improvement in symptoms with provided mental health care.” (AR
19 27.) That summary conclusion elides several statements from Dr. Chang that Plaintiff
20 was not able to work in light of her mental impairments.6 See, e.g., (AR 564 (“She is
21 clearly not able to function or work at this time due to her condition.”)); (AR 568 (“At
22 this time she is clearly not able to work or function because of the mental illness and how
23
24
25 6 Earlier in his opinion, when discussing Plaintiff’s activities of daily living, the ALJ cites to two of the
three progress notes mentioned here as absent. (AR 26.) The ALJ’s prior citations summarize that
26 evidence for the purposes of asserting that Plaintiff’s symptom testimony conflicts with her childcare
responsibilities, a reason earlier dismissed as insufficiently specific by this Order. Consequently, in
27 contrast to the Magistrate Judge, the Court does not see how the ALJ’s prior references to these progress
notes provide a “specific and legitimate” reason to disregard Dr. Chang’s opinion or absolve the ALJ of
28
1 it affects her thought process.”)); (AR 576 (“She is clearly not able to work due to the
2 emotional and mental stress.”)). The ALJ likewise fails to mention Dr. Chang’s notations
3 that Plaintiff needed psychiatric treatment, see, e.g., (AR 564 (“I am going to schedule
4 her for follow-up with psychiatry to help with management.”)); (AR 576 (“She should
5 continue to follow with outpatient psychiatric specialty care.”)), or that Dr. Chang
6 successfully referred Plaintiff for mental health treatment. (AR 230.) And, even if the
7 ALJ’s RFC is “consistent with” Dr. Chang’s concern that Plaintiff cannot return to her
8 past work as a nurse, that does not help explain how the ALJ accounts for Dr. Chang’s
9 repeated assertions that Plaintiff was unable to perform any work. (AR 27, 561–64, 565–
10 68, 576–78.)
11 Consequently, while the ALJ’s proffered reason for disregarding Dr. Chang’s
12 September 22, 2015 letter is not error, the ALJ fails to provide a “specific and legitimate”
13 reason to discount Dr. Chang’s equally concerning observations during treatment.
14 Garrison, 759 F.3d at 1012. The ALJ’s cursory discussion of Dr. Chang’s treatment,
15 moreover, eschews settled guidance from the Ninth Circuit that treating physicians are
16 entitled to greater deference among competing medical opinions. See Orn, 495 F.3d at
17 633–34 (concluding that a treating physician’s opinion is entitled to great weight even
18 when not deemed controlling). And, the ALJ fails “to apply the appropriate factors in
19 determining the extent to which the opinion should be credited,” which “alone constitutes
20 reversible legal error.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017); see 20
21 C.F.R. § 404.1527(d)(2) (listing factors to be considered in determining the weight of a
22 treating physician’s opinion). Thus, the ALJ erred in assessing Dr. Chang’s opinions.
23 In contrast to the treatment of Dr. Chang, the ALJ’s treatment of Dr.
24 Khatchatrian’s opinion and LCSW Bennett’s opinion are not error. First, the Court
25 concurs with the magistrate judge that the ALJ did not err in assigning “limited probative
26 value” to the September 22, 2017 jury service note as it is summarily stated and offers no
27 medical insight. Tonapetyan, 242 F.3d at 1149. More generally, and in contrast to
28 Plaintiff’s uncited claims, neither Dr. Khatchatrian nor LCSW Bennet “opined that
1 [Plaintiff] is significantly limited by her mental impairment.” (Cf. ECF No. 12 at 17.) At
2 most, the Court’s review of the record indicates that LCSW Bennett opined that Plaintiff
3 could not continue to work as a nurse, and the ALJ’s RFC here is not inconsistent with
4 that opinion. (AR 609 (“Precila’s primary care physician, Dr. Alan Chang, has
5 determined that she is too impaired to work as a nurse. After meeting with this patient for
6 six visits, I am in agreement with Dr. Chang’s assessment.”)) Consequently, Plaintiff’s
7 argument that the ALJ improperly discredited their opinions is misplaced.
8 D. Harmless Error Analysis
9 The Court now turns to the analysis of whether the ALJ’s errors were harmless.
10 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec.
11 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). An error is harmless “where it is
12 inconsequential to the ultimate nondisability determination.” Id. at 1115 (citations
13 omitted). In other words, a Court must determine whether the ALJ’s conclusion is
14 supported by substantial evidence despite the error. Blacksher v. Berryhill, 762 F. App'x
15 372, 376 (9th Cir. 2019) (citing Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,
16 1162 (9th Cir. 2008)). Courts look to the record as a whole to determine whether the error
17 alters the outcome of the case. Molina, 674 F.3d at 1115.
18 Here, the record establishes that the ALJ’s assessments of Plaintiff and her
19 husband were not harmless. As to the rejection of Plaintiff’s symptom testimony, the
20 Court has found each of the ALJ’s proffered reasons are insufficiently “specific, clear and
21 convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Consequently, the
22 ALJ’s credibility assessment lacks substantial evidence. Cf. Carmickle, 533 F.3d at 1163
23 (finding the ALJ’s inadequate assessment of Plaintiff’s credibility survived harmless
24 error analysis because it was nonetheless supported by a specific, clear and convincing
25 reason). Similarly, because Mr. Contreras’s report and letter substantially corroborate
26 Plaintiff’s testimony, and the ALJ provided no “germane” reason to disregard them, the
27 Court “cannot say the ALJ’s error here was nonprejudicial.” Stout, 454 F.3d at 1056.
28 These errors are harmful, moreover, in light of the medical record supporting
1 Plaintiff’s symptom testimony. For example, Dr. Chang’s insistence that Plaintiff was
2 unable to work, and discussion of her family’s medical history, corroborate Plaintiff’s
3 stated symptoms. (AR 561, 564–65, 568, 576 578, 581.) Dr. Chang, Dr. Khatchatrian,
4 and LCSW Bennett’s observations of Plaintiff’s mental impairments are also based upon
5 examinations closer in time to Plaintiff’s December 2017 hearing than were Dr. Reback,
6 Dr. Dalton, and Dr. Greytak’s opinions, and thus may provide a more accurate reflection
7 of Plaintiff’s current mental health. Lastly, in light of the Vocational Expert’s opinion
8 that no work would be available in the national economy for “someone [who] was
9 consistently off task or unable to concentrate outside of normal breaks at least 15 percent
10 of the day,” (AR 81), Plaintiff’s symptom testimony and Mr. Contreras’s lay opinion, if
11 credited, may be sufficient to establish that Plaintiff is disabled. At a minimum, the ALJ’s
12 rejection of their testimony is not “inconsequential to the ultimate nondisability
13 determination.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006).
14 As to the ALJ’s treatment of Dr. Chang’s medical opinions, the ALJ’s error was
15 likewise not harmless. First, the ALJ failed to provide an adequate reason for discounting
16 Dr. Chang’s multiple opinions that Plaintiff was unable work. Cf. Williams v. Berryhill,
17 728 F. App'x 709, 711 (9th Cir. 2018) (finding ALJ’s reason for discounting a
18 physician’s opinion was erroneous but harmless because other legitimate reasons
19 supported the opinion’s treatment). Second, the ALJ’s error is not rendered harmless by
20 relying on Plaintiff’s “overall records,” (AR 27), or the Commissioner’s observation that
21 the decision comports with the opinions of other, non-treating physicians, including Dr.
22 Greytak. (ECF No. 17-1 at 14.) Rather, because Dr. Chang served as Plaintiff’s long-term
23 family doctor and treating physician, and opined various times that Plaintiff could not
24 work, Dr. Chang may have been entitled to greater deference. See Pearce v. Astrue, No.
25 C09-04MJP, 2009 WL 3698514, at *7 (W.D. Wash. Nov. 3, 2009) (finding that an ALJ’s
26 failure to attribute treating physician status to a doctor was not harmless); Logan v.
27 Colvin, No. ED CV 12-107-PJW, 2013 WL 5332454, at *3 (C.D. Cal. Sept. 23, 2013)
28 (“As to the Agency’s argument that Dr. Turner’s opinion was properly ignored because it
1 || was contradicted by at least four other doctors, that argument misses the point. All things
2 || being equal, where the doctors’ opinions are in conflict, it is the treating doctor’s opinion
3 || that is entitled to deference—even if it happens to be the minority view—unless there is a
4 || valid reason for questioning it.”) Consequently, the Court cannot conclude that, were Dr.
5 || Chang’s opinions fully credited, “no reasonable ALJ could have found Plaintiff
6 || disabled.” Jd. (citing Stout, 454 F.3d at 1056; Carmickle, 533 F.3d at 1162-63).
7 Conclusion
8 For the foregoing reasons, the Court DECLINES TO ADOPT the Magistrate
9 || Judge’s R&R, GRANTS Plaintiff's Motion for Summary Judgment, DENIES
10 || Defendant’s Motion for Summary Judgment, and REMANDS this matter for further
11 || proceedings consistent with this Order, including directing the Commissioner to (1)
12 ||request an updated medical source statement from Plaintiff's treating physician inclusive
13 any limitations on her ability to work as a home attendant, phlebotomist, hospital
14 || admitting clerk or personal attendant; (2) allow Plaintiff to supplement the record with
15 |} any additional relevant medical records; (3) reassess Plaintiffs credibility in light of any
16 newly obtained information; and (4), if warranted by the expanded record, obtain
17 || evidence from a vocational expert to clarify the effect of the assessed limitations on
18 || Plaintiff’ s occupational opportunities.’
19 IT ISSO ORDERED. 2 / Ox
20 Dated: March 30, 2020 Hon. Gonzalo P. Curiel ~~
7] United States District Judge
22
23 |/7 At the end of the December 2017 ALJ hearing, Plaintiffs counsel observed that the record lacked chart
notes within the last year and suggested a psychiatric, consultative exam (“CE”) with testing to round
out the record. (AR 82.) As the Greytak CE took place in December 2015, the Court finds that updated
25 || information is necessary to properly evaluate the credibility of Plaintiff and her husband. Cf. Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir.1999) (‘[W]here there are deficiencies in the record, an ALJ is under
26 || an affirmative obligation to develop a claimant’s medical history even when the claimant is represented
by counsel or by a paralegal.”); Guillen v. Berryhill, 697 F. App’x 107, 109 (2d Cir. 2017) (vacating
27 || decision of the district court with instructions to remand the matter to the Commissioner for further
8 proceedings consistent with the order, including supplementing the medical record and reassessing
claimant’s credibility in light of newly obtained information).
33