Hutchinson v. Saul

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 BENJAMIN H., Case No.: 3:19-cv-2177-JM-LL

12 Plaintiff,

REPORT AND

13 v. RECOMMENDATION REGARDING

CROSS MOTIONS FOR SUMMARY

14 ANDREW SAUL,

JUDGMENT

Commissioner of Social Security,

15

Defendant. [ECF Nos. 16, 19]

16

17

18 Plaintiff Benjamin H. brought this action for judicial review of the Social Security

19 Commissioner’s (“Commissioner”) denial of his claim for disability insurance benefits.

20 Before this Court are Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-

21 Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary

22 Judgment. [ECF Nos. 16, 19].

23 This Report and Recommendation is submitted to United States District Judge

24 Jeffrey T. Miller pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United

25 States District Court for the Southern District of California. For the reasons set forth below,

26 this Court RECOMMENDS that Plaintiff’s Motion for Summary Judgment be

27 GRANTED, and Defendant’s Cross-Motion for Summary Judgment be DENIED, and the

28 case be remanded for further proceedings.

1 I. PROCEDURAL BACKGROUND

2 On October 20, 2015, Plaintiff applied for Title II disability insurance benefits,

3 alleging disability beginning on September 18, 2014. See Administrative Record (“AR”)

4 at ECF No. 14 at 122-128. Plaintiff’s claim was initially denied on January 7, 2016, and

5 upon reconsideration on March 15, 2016, which resulted in Plaintiff’s request for an

6 administrative hearing. AR at 61-74. Plaintiff requested the administrative hearing on

7 April 27, 2016. Id. at 98-99. On February 21, 2018, an administrative hearing was held

8 before Administrative Law Judge (“ALJ”) Howard K. Treblin. Id. at 45-60. Plaintiff,

9 appearing without an attorney, testified at the hearing. Id. at 47-60. An impartial vocational

10 expert, Ms. Nelly Katsel, was also present and testified. Id. In a written decision dated

11 September 20, 2018, the ALJ determined that Plaintiff had not been under a disability, as

12 defined in the Social Security Act, from September 18, 2014, through the date of the ALJ’s

13 decision. Id. at 19-39. The ALJ’s decision became final on September 12, 2019, when the

14 Appeals Council denied Plaintiff’s request for review of the ALJ’s ruling. Id. at 2-5. On

15 November 18, 2019, the Appeals Council noted in written correspondence to Plaintiff’s

16 attorney Jonathan Omar Pena that it had received additional evidence which it included in

17 Plaintiff’s record. Id. at 6. The additional evidence included Plaintiff’s November 16, 2018

18 request for review of the hearing decision, and Plaintiff’s January 6, 2019 correspondence

19 requesting additional time to submit more evidence. Id. at 7-17.

20 On November 14, 2019, Plaintiff, represented by his attorney Mr. Pena, filed this

21 instant action seeking judicial review by the federal district court. See ECF 1. On May 26,

22 2020, Plaintiff filed a Motion for Summary Judgment alleging that the ALJ rejected the

23 opinion of the consultative psychiatric examiner “without setting forth specific, legitimate

24 reasons that are supported by substantial evidence in the record.” ECF No. 16 at 3

25 (hereinafter “Pl.’s Mot.”). Plaintiff also asserts that the “ALJ failed to include work-related

26 limitations in the RFC consistent with the nature and intensity of Plaintiff’s physical

27 limitations, and failed to offer clear and convincing reasons for discounting his subjective

28 complaints.” Id. In Defendant’s Cross-Motion for Summary Judgment and Opposition to

1 Plaintiff’s Motion for Summary Judgment, Defendant asserts that “the ALJ properly

2 weighed the medical-opinion evidence” and that the ALJ “properly weighed Plaintiff’s

3 subjective allegations.” ECF No. 19 at 2, 8 (hereinafter “Def.’s Mot.”). Defendant

4 additionally asserts that if this Court overturns the ALJ’s decision that the proper remedy

5 is to remand Plaintiff’s claim to the agency. Id. at 11-12.

6 II. DISABILITY HEARING

7 On February 21, 2018, Plaintiff, not represented by counsel, appeared at the hearing

8 before the ALJ. See AR at 47. During the hearing, the ALJ questioned Plaintiff regarding

9 his work experience and alleged disability. Id. at 47-61. Plaintiff testified that he was aware

10 that he could have a lawyer or a representative to help him but indicated that he wanted to

11 proceed with the hearing. Id. at 47-48. Plaintiff testified that he was thirty-seven years old

12 and that he graduated from college with a BFA. Id. at 48. He stated that his last gainful

13 employment was as a Production Manager at New Deal Distillery in 2014. Id. at 49.

14 Plaintiff described that he had left this job when his pain became unbearable because he

15 believed “he couldn’t do his job well.” Id.

16 The ALJ then asked Plaintiff a series of questions about the headaches that Plaintiff

17 alleged. First, the ALJ questioned whether Plaintiff was having headaches daily. Id. at 49-

18 50. Plaintiff said “yeah.” Id. Next, the ALJ questioned the intensity of the headaches and

19 whether Plaintiff spent time in a dark, quiet room. Id. Plaintiff answered that his headaches

20 were incapacitating and that he spends time in such a room approximately three days a

21 week. Id. at 49-50. He also described that during his migraines he would wear sunglasses

22 and play the television at the lowest volume. Id. at 50.

23 The ALJ next asked Plaintiff a series of questions about fibromyalgia and

24 neuropathic pain. Id. at 49. Plaintiff testified that he has fibromyalgia, neuropathic pain and

25 some psychiatric diagnoses which he takes prescription strength medicine to treat. Id. at

26 50. When the ALJ asked whether the medicine helped, Plaintiff responded that the pills,

27 which he can only take once a week, “help take the edge off,” but do not get rid of his pain.

28

1 Id. at 50-51. Plaintiff indicated that the only side effects that he experiences from the

2 medicine are sedation and dizziness. Id. at 51.

3 Next, the ALJ questioned Plaintiff regarding his financial support and his home life.

4 Id. Plaintiff testified that he is supported by his mother and that he lives in her house with

5 his brother. Id. at 51-52. Plaintiff stated that he receives food stamps and MediCal, but no

6 cash assistance. Id. at 52. Regarding his home life, the ALJ asked what a typical day looked

7 like for Plaintiff. Id. Plaintiff stated that he does yoga and walks, but is limited due to his

8 fibromyalgia flare ups. Id. at 52-53. Plaintiff additionally testified that he experiences

9 fibromyalgia pain every day, and that he has noticed short term memory deficits. Id. at 53.

10 The ALJ then questioned Plaintiff regarding his social interaction and Plaintiff answered

11 that he does not have a social life besides interactions with his family. Id. at 54. Next, the

12 ALJ questioned Plaintiff regarding his participation in household chores. Id. Plaintiff

13 testified that he cooks for himself and does light chores, such as wiping down the counters.

14 Id. Plaintiff testified that his mom often helps him do the dishes. Id.

15 The ALJ then questioned Plaintiff regarding the frequency of his doctors’ visits. Id.

16 Plaintiff testified that he is required to have an appointment every six months for his pain

17 management, but has visited his primary care every three months. Id. at 55. Additionally,

18 Plaintiff described that he sees medical specialists at a minimum of “once every three

19 months.” Id.

20 Next, the ALJ questioned the vocational expert, Ms. Katsel. Id. The ALJ asked Ms.

21 Katsel to identify Plaintiff’s past work. Id. She categorized Plaintiff’s work as a distillery

22 worker as “svp two, heavy.” Id. Ms. Katsel categorized Plaintiff’s prior work before he

23 was a distillery worker as a salesperson of general merchandise as “svp three, light.” Id.

24 Ms. Katsel categorized Plaintiff’s job as a barista as “svp two, medium.” Id. at 56-57. The

25 ALJ presented Ms. Katsel with a hypothetical of “someone with the claimant’s age,

26 education, past work, who can lift and carry 20 pounds on occasion, 10 pounds frequently,

27 sit/stand/walk for six hours each, simple repetitive tasks, nonpublic occasional coworker

28 contact, can past work [of a distillery worker] be performed?” Id. at 58. Ms. Katsel said

1 “No.” Id. When asked about his other work [salesperson of general merchandise] with the

2 same hypothetical, Ms. Katsel said “Yeah, svp two, light.” Id. Ms. Katsel provided some

3 examples of jobs of “svp two, light” as “office helper,” “garment sorter.” Id. Next, the ALJ

4 asked the vocational expert about a new hypothetical of an individual with “the same age,

5 education, past work,” but “an individual who cannot sustain a 40-hour work week on a

6 regular and continuing basis, will need excess rest breaks throughout the work day, is not

7 able to understand, remember, carry out even simple tasks on a sustained basis.” Id. Ms.

8 Katsel said no work can be performed by that hypothetical individual.

9 III. SUMMARY OF THE ALJ’S DECISION

10 On September 20, 2018, the ALJ issued a written decision in which he determined

11 that Plaintiff had not been under a disability, as defined in the Social Security Act, from

12 September 18, 2014, through the date of the ALJ’s decision. AR at 40. The ALJ proceeded

13 to follow the Commissioner’s five-step sequential evaluation process. See 20 C.F.R. §§

14 404.1520, 416.920.

15 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful

16 activity since September 18, 2014, the alleged onset date. AR at 24.

17 At step two, the ALJ found that Plaintiff had the following severe impairments:

18 “migraine headaches; fibromyalgia; degenerative disc disease of the lumbar spine;

19 posttraumatic stress disorder; paranoid disorder; anxiety; and depression.” Id. at 25.

20 At step three, the ALJ found that Plaintiff does not have an impairment, or a

21 combination of impairments, that met or medically equaled one of the impairments as

22 defined in 20 CFR Part 404. Id.

23 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”)

24 to perform light work as defined in the Commissioner’s regulations, subject to certain non-

25 exertional limitations. AR at 27-28. Specifically, the ALJ found:

26 [He can] perform light work as defined in 20 CFR 404.1567(b) except: he can

lift and carry 20 pounds occasionally and 10 pounds frequently; he can sit,

27

stand and walk for six hours each; and he is limited to simple repetitive tasks

28 that are non-public with occasional coworker contact.

1 Id.

2 At step four, the ALJ found that Plaintiff, based on his limitation to less than the full

3 range of light work, was unable to perform his past relevant work as a distillery worker,

4 salesperson of general merchandise, or a coffee maker. Id. at 38-39. For purposes of his

5 step five determination, the ALJ adduced and accepted the vocational expert’s testimony

6 that a hypothetical person with Plaintiff’s vocational profile could make a successful

7 adjustment to other work that existed in significant numbers in the national economy. Id.

8 at 39-40. Namely, Plaintiff could work as an office helper, a retail marker, or a garment

9 sorter. Id. Accordingly, the ALJ found that Plaintiff was not disabled. Id.

10 IV. ISSUES IN DISPUTE

11 Plaintiff raises the following two issues in his Motion, which will be discussed in

12 more detail in the Discussion section below.

13 (1) The ALJ erred by rejecting the opinion from the consultative psychiatric

examiner, Dr. Bhavsar, without setting forth specific, legitimate reasons

14

that are supported by substantial evidence in the record.

15 (2) The ALJ failed to include work-related limitations in the RFC consistent

with the nature and intensity of Plaintiff’s physical limitations, and failed

16

to offer clear and convincing reasons for discounting his subjective

17 complaints.

Pl.’s Mot. at 3.

18

19 V. STANDARD OF REVIEW

20 The Social Security Act permits unsuccessful applicants to seek judicial review of

21 the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of judicial review is

22 limited in that a denial of benefits will not be disturbed if it is supported by substantial

23 evidence and contains no legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

24 2002).

25 Substantial evidence is “more than a mere scintilla, but may be less than a

26 preponderance.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). It is

27 evidence that a “reasonable mind might accept as adequate to support a conclusion.” Id. In

28 determining whether the ALJ’s findings are supported by substantial evidence, the court

1 “must consider the entire record as a whole, and may not affirm simply by isolating a

2 specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

3 2007). When the evidence may be reasonably construed to support more than one rational

4 interpretation, the court must uphold the ALJ’s decision. Thomas, 278 F.3d at 954. Further,

5 the court reviews “only the reasons provided by the ALJ in the disability determination and

6 may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759

7 F.3d 995, 1010 (9th Cir. 2014). Additionally, the court may not reverse the ALJ’s decision

8 on account of a harmless error. Molina v. Astrue, 674 F.3d 1104, 111 (9th Cir. 2012). The

9 burden of proving harmless error falls upon the party attacking the agency’s determination.

10 Id.

11 Section 405(g) permits a court to enter judgment affirming, modifying, or reversing

12 the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand

13 the matter to the Social Security Administration for further proceedings. Id.

14 VI. DISCUSSION

15 1. Evaluation of the Medical Evidence Including the Opinion of Dr. Bhavsar

16 a. Summary of Parties’ Arguments

17 Plaintiff argues that the ALJ “failed to follow the regulations when he rejected the

18 opined limitations from the consultative psychiatric examiner without setting forth

19 specific, legitimate reasons that are supported by substantial evidence in the record.” Pl.’s

20 Mot. at 17. Plaintiff’s first argument in support thereof is that the ALJ “vaguely cit[ed] to

21 the record as a whole for the relevant period,” rather than citing to specific entries in the

22 medical record. Id. at 18. Second, Plaintiff argues that the ALJ impermissibly weighed only

23 Plaintiff’s benign mental findings, and ignored Plaintiff’s longstanding history of PTSD,

24 anxiety, and depression. Id. at 18-19. Third, Plaintiff argues that “the record as a whole

25 contains objective evidence and documentation of persistent psychiatric symptoms” and

26 the ALJ’s “vague reference to the record as a whole as ‘inconsistent’ with Dr. Bhavsar’s

27 opinion is not a specific, legitimate reason to discount his professional assessment.” Id. at

28 19. Fourth, Plaintiff argues that the ALJ committed a legal error in concluding that Dr.

1 Bhavsar’s findings “support no more than moderate limitations” because the ALJ did not

2 explain how he came to this conclusion. Id. at 20 (citing AR at 37).

3 Defendant argues that the ALJ properly weighed the medical-opinion evidence.

4 Def.’s Mot. at 3. Defendant’s first argument in support thereof is that the ALJ properly

5 found Dr. Joshua J. Boyd’s, Psy.D., and Dr. Ben G. Kessler’s, Psy.D., “opinions best

6 comported with the weight of the evidence.” Id. at 4. Second, Defendant argues that

7 Plaintiff “failed [to] allege reversible error because he did not show Dr. Bhavsar’s opinion

8 conflicted with the RFC.” Id. (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).

9 Third, “[a]s to the medical evidence, the ALJ properly found that while Plaintiff’s mental-

10 status examinations supported significant functional limitations, they also revealed a

11 residual range of functioning consistent with Plaintiff’s restrictive RFC.” Id. at 5. Fourth,

12 Defendant claims that in connection with Plaintiff’s treatment history, “the ALJ properly

13 found that the sporadic and conservative nature of Plaintiff’s mental-health treatment

14 supported the reduced level of functioning set forth in his RFC.” Id. at 6. Accordingly,

15 Defendant argues that Plaintiff does not establish reversible error. Id. at 8.

16 b. Relevant Law

17 In evaluating medical opinions, the regulations distinguish among three categories

18 of physicians: (1) treating physicians; (2) examining physicians, who examine, but do not

19 treat the claimant; and (3) non-examining physicians, who neither examine nor treat the

20 claimant. 20 C.F.R. § 404.1527(c); (e)1; see also Lester v. Chater, 81 F.3d 821, 830 (9th

21 Cir. 1996). “Generally, a treating physician’s opinion carries more weight than an

22 examining physician’s, and an examining physician’s opinion carries more weight than a

23 reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195,1202 (9th Cir. 2001); see

24 also 20 C.F.R. § 404.1527(d)(2). A contradicted opinion of a treating or examining

25

26

27 1 The Social Security Administration issued new regulations effective March 27, 2017.

Unless otherwise stated, all regulations cited in this decision are effective for cases filed

28

1 physician may be rejected for “specific and legitimate reasons that are supported by

2 substantial evidence in the record.” Lester, 81 F.3d at 830.

3 c. Analysis

4 Plaintiff asserts that the ALJ erred in rejecting the opinion from examining

5 physician, Dr. Bhavsar, a state agency psychiatrist, who opined that Plaintiff is “severely

6 limited” as set forth below:

7 The claimant’s ability to follow simple oral and written instructions was

moderately limited. His ability to follow detailed instructions was severely

8

limited. His ability to interact with the public, coworkers and supervisor[s]

9 was severely limited. The claimant’s ability to comply with job rules, such as

safety and attendance, was severely limited. His ability to respond to changes

10

in a routine work setting was severely limited. His ability to respond to work

11 pressure in a[n] usual working setting was severely limited. His daily

activities were mildly limited.

12

13 AR at 513. The ALJ stated that he “assigned little weight to the opinion of Dr. Bhavsar

14 because his opinion is inconsistent with the objective medical evidence.” AR at 38. The

15 ALJ summarized his review of Dr. Bhavsar’s evaluation of Plaintiff as follows:

16 [O]n July 24, 2018, Madhumalti Bhavsar, M.D., [b]oard eligible in psychiatry,

conducted a consultative psychiatric evaluation of the claimant (Ex. 8F). The

17 claimant’s chief complaints were posttraumatic stress disorder (PTSD),

18 anxiety, situational depression, and panic attacks. . . . Based on the

examination, Dr. Bhavsar diagnosed the claimant with: schizophrenia, in

19 partial remission; PTSD; and generalized anxiety disorder. . . . Dr. Bhavsar

20 opined the claimant has the following functional limitations: moderately

limited in the ability to follow simple oral and written instructions; severely

21 limited in the ability to follow detailed instructions; severely limited in the

22 ability to interact with the public, coworkers, and supervisors; severely limited

in the ability to comply with job rules, such as safety and attendance; severely

23 limited in the ability to respond to changes in a routine work setting; severely

24 limited in the ability to respond to work pressure in a usual work setting; and

mildly limited in his daily activities (8F, pp. 6-10).

25

26 The undersigned has considered but gives little weight to the opinion of Dr.

Madhumalti Bhavsar, a consultative psychiatric examiner (Ex. 8F). Dr.

27 Bhavsar opined the claimant’s mental impairments result in moderate to

28 severe or marked functional mental limitations (Ex. 8F, pp. 6-10). However,

1 upon review of the medical evidence of record, the undersigned [finds] [sic]

no positive objective, persistent psychiatric, psychological, or mental status

2

examination findings nor regular and consistent mental health treatment

3 supporting the severity of mental limitations assessed by Dr. Bhavsar (see

Exhs. 3F-6F). Further, Dr. Bhavsar’s opinion is inconsistent with his own

4

mental status findings, which at best support no more than moderate

5 limitations (Ex 8F, pp. 4-5). The undersigned therefore assigns little weight to

the opinion of Dr. Bhavsar because his opinion is inconsistent with the

6

medical evidence.

7 AR at 37-38.

8 Dr. Bhavsar’s opinion was contradicted by Drs. Boyd and Kessler, who opined that

9 Plaintiff has no more than moderate functional limitations. Id. at 65-86. Drs. Boyd and

10 Kessler were both non-examining physicians and did not examine nor treat the claimant.

11 Id. The ALJ stated that he “assign[ed] significant weight to the opinions of Dr. Boyd and

12 Dr. Kessler because their opinions are reasonable and consistent with the evidence of

13 record as a whole.” Id. at 37. The ALJ summarized his review of Drs. Boyd and Kessler

14 as follows:

15 With regard to the medical opinions regarding the claimant’s mental residual

functional capacity, Joshua J. Boyd, Psy.D., the State agency mental medical

16

consultant on initial review (Ex. 2A), and Ben G. Kessler, Psy.D., the State

17 agency mental medical consultant at the reconsideration level (Ex. 4A),

opined the claimant has the following functional limitations: mild restriction

18

with activities of daily living, moderate difficulties in maintaining social

19 functioning; moderate decompensation (Exs. 2A, 4A). More specifically, Dr.

Boyd and Dr. Kessler opined the claimant has the following mental residual

20

functional capacity: he is limited from more complex and detailed

21 instructions, but his impairments would still allow for the claimant to

understand, remember, remember [sic] and carry out simple short, repetitive

22

instructions; he is limited from all public contact and is capable of occasional

23 coworker contact; and he is limited to work environment that would be free

from constant changes (Exs. 2A, 4A).

24

25 Id. at 36. Accordingly, the ALJ was required to identify specific and legitimate reasons

26 supported by substantial evidence in the record to reject the limitations set forth by Dr.

27 Bhavsar. Lester, 81 F.3d at 830.

28 / / /

1 i. The ALJ’s Conclusory Findings

2 After reviewing the record and the arguments of the parties, the Court finds that the

3 ALJ failed to provide specific and legitimate reasons supported by substantial evidence in

4 the record for discounting the opinion of Dr. Bhavsar. As an initial matter, the ALJ

5 considered only some evidence in the record to support his rejection of Dr. Bhavsar’s

6 medical opinion of a more restrictive functional limitation, while ignoring evidence in the

7 record that supports the more restrictive finding. See Holohan, 246 F.3d at 1207-08

8 (holding that an ALJ cannot selectively rely on some entries in plaintiff’s records while

9 ignoring others). The ALJ did not provide specific and legitimate reasons for discounting

10 evidence in Plaintiff’s medical records that support his lengthy history of PTSD, anxiety

11 and depression, which was noted as a contributing factor to his chronic pain syndromes.

12 For example, on February 10, 2014, Plaintiff saw Dr. John Garofalo and was

13 diagnosed with Posttraumatic Stress Disorder. AR at 272. Dr. Garofalo noted that Plaintiff

14 presented “with persistent pain with psychological comorbidity in the form of PTSD and

15 unspecified depression. . . . The presence of PTSD seems to be playing a significant role

16 in the manifestation and expression of chronic pain. Id. at 272. Dr. Garofalo further noted

17 that “[o]verall, the patient presents as genuinely distressed by his pain.” Id. at 275.

18 Similarly, one year later, on February 16, 2015, Plaintiff had a consultation with Dr. Cara

19 Lee Rozell, D.O., for his migraines. Id. at 299. Dr. Rozell noted that Plaintiff had a “stable

20 headache pattern” and that his “level of head pain is related to his level of body and back

21 pain, and that is also complicated by a history of PTSD.” Id. Dr. Rozell further noted that

22 “he also suffers from depression, which he feels is situational, i.e., related to his degree of

23 pain and incapacitation.” Id. Dr. Rozell noted in her assessment that “[t]he patient has a

24 complex pain history, including chronic migraine, migraine without aura, chronic

25 nonmalignant body and back pain, PTSD, insomnia.” Id. at 302.

26 On December 2, 2015, Vivian Coles, LPC, MA, wrote a letter explaining that she

27 has treated Plaintiff for psychotherapy beginning on September 1, 2012 to the present. Id.

28 at 350. She noted that Plaintiff’s symptoms have included “migraines, nightmares, feeling

1 negative about the future, isolating from people, having problems at work, along with

2 chronic back pain.” Id. She further stated that “[h]e’s also had passive suicidal thoughts on

3 and off the past two years, we’ve discussed safety planning and he seems committed to

4 staying alive.” Id. Ms. Coles discussed the various treatment regimens that Plaintiff had

5 tried and noted that “[h]e has been an active participant in therapy and has attended

6 regularly.” Id. On December 12, 2016, Plaintiff had a treatment intervention with Sheila

7 Baghbeh, MFT for a psychiatric therapy visit, who noted that Plaintiff had a “depressed

8 mood, sadness, decreased sleep and decreased energy/fatigue.” Id. at 410. In her progress

9 notes, Ms. Baghbeh, MFT stated that Plaintiff had a “severe” impairment in participating

10 in usual social/community activities and a “severe” “impairment in performing

11 work/school tasks.” Id. at 413. Plaintiff continued to establish care with and seek treatment

12 from various medical specialists from 2016 through 2018 in connection with his lengthy

13 history of PTSD, anxiety and depression, which was often noted as a contributing factor to

14 his chronic pain syndromes. See, e.g., AR at 389-90; AR at 396; AR at 403; AR at 409-10;

15 AR at 421-22; AR at 430; AR at 440; AR at 444; AR at 451; AR at 454; AR at 482-83; AR

16 at 489; AR at 491.

17 These findings were later corroborated by Dr. Bhavsar, who reviewed Plaintiff’s

18 available medical records and performed a complete psychiatric evaluation on Plaintiff on

19 July 24, 2018. Id. at 508-517. Dr. Bhavsar found that Plaintiff’s diagnoses were

20 “schizophrenia, in partial remission; posttraumatic stress disorder and generalized anxiety

21 disorder.” Id. at 512. Dr. Bhavsar further opined that Plaintiff’s was “severely limited” in

22 specified areas of his functionality as set forth above. Dr. Bhavsar also completed a medical

23 source statement in which he noted that Plaintiff had “marked” limitations due to PTSD,

24 recent psychosis and severe anxiety. Id. at 515-517.

25 The ALJ failed to consider or discuss the evidence as set forth above from Plaintiff’s

26 medical records that supported his lengthy history of PTSD, anxiety and depression, which

27 were noted as contributing factors to his chronic pain syndromes. Instead, the ALJ merely

28 concluded that “upon review of the medical evidence of record, the undersigned [finds]

1 [sic] no positive, objective persistent psychiatric, psychological, or mental status

2 examination findings nor regular and consistent mental health treatment supporting the

3 severity of mental limitations assessed by Dr. Bhavsar (see Exs. 3F-6F).” Id. at 38. The

4 ALJ failed to identify any objective evidence or clinical findings that contradicted the

5 limitations by Dr. Bhavsar and offered only his conclusion that the limitations were not

6 consistent with other evidence. This is not sufficient to carry the burden in evaluating the

7 evidence or addressing a conflict in the record. See, e.g., Reddick v. Charter, 157 F.3d 715,

8 722 (9th Cir. 1998). (“The ALJ must do more than offer his conclusions. He must set forth

9 his own interpretations and explain why they, rather than the doctors’, are correct.”); see

10 also Garrison, 759 F.3d at 1012-13 (“An ALJ errs when he rejects a medical opinion or

11 assigns it little weight while doing nothing more than ignoring it, asserting without

12 explanation that another medical opinion is more persuasive, or criticizing it with

13 boilerplate language that fails to offer a substantive basis for his conclusion.”). Here, the

14 ALJ failed to identify what he believed to be the discrepancy between Dr. Bhavsar’s mental

15 status findings and the objective medical evidence.

16 ii. The ALJ’s Citations to Exhibits 3F-6F

17 Second, the Court agrees with Plaintiff that the ALJ did not meet his burden of

18 providing specific and legitimate reasons supported by substantial evidence to discount the

19 opinion of Dr. Bhavsar by citing generally to Plaintiff’s medical records at exhibits 3F-6F.

20 AR at 38. The ALJ was required to set out “a detailed and thorough summary of the facts

21 and conflicting clinical evidence, stating his interpretation thereof, and making findings.”

22 Thomas, 278 F.3d at 957; see also Reddick, 157 F.3d at 725. “Broad and vague reasons do

23 not suffice.” Klee v. Berryhill, 2018 WL 3956337, at *13 (N.D. Cal. Aug. 17, 2018)

24 (internal citation and quotation omitted).

25 Defendant’s argument that the ALJ “provided specific pin-point citations to the

26 medical evidence supporting his findings” is unpersuasive. Def.’s Mot. at 4. Although the

27 ALJ cited to some specific page numbers within Exhibits 3F-6F, the citations were not

28 sufficiently specific to support the ALJ’s conclusion. AR at 25-26. The ALJ vaguely

1 concluded that “although the claimant was briefly hospitalized in January 2018 (Ex. 6F,

2 pp. 84-110), mental status findings were generally unremarkable during the period at issue,

3 other than guarded behavior and mild depressive mood, which was reported only

4 intermittently (Exs. 3F, pp. 43-45; 5F, p. 15; 6F, pp. 42, 62, 69-71, 74-76, 110-113, 121-

5 124).” AR at 25-26. Notably, many of the records to which the ALJ cites also include

6 positive findings related to Plaintiff’s allegations. For example, in Exhibit 3F, pages 43 to

7 45, which the ALJ cites, the ALJ failed to address that Dr. Bilbao’s progress notes from

8 Plaintiff’s appointment on August 24, 2015 stated that Plaintiff was “requesting medicine

9 for social anxiety and PTSD related nightmares.” Id. at 305-307. Similarly, in Exhibit 5F,

10 on page 15, Dr. Bilbao noted in Plaintiff’s November 4, 2015 progress notes that Plaintiff

11 has “chronic pain, chronic headaches, [and] PTSD.” Id. at 364-365. Dr. Bilbao also stated

12 that Plaintiff is having “possible panic attacks.” Id. Specifically, she stated that Plaintiff

13 “[i]s having episodes of shakiness, pounding heartbeat, tunnel vision, [and]

14 lightheadedness.” Id. These findings are absent from the ALJ’s discussion of Plaintiff’s

15 medical records, and contradict the ALJ’s conclusion that Plaintiff had mental status

16 findings that were “generally unremarkable” during the period at issue. An ALJ may not

17 consider evidence that supports the non-disability determination, while disregarding

18 evidence that supports the contradictory opinion from a physician. See, e.g., Holohan, 246

19 F.3d at 1207; see also Reddick, 157 F.3d at 722-23 (finding that an ALJ may not “cherry-

20 pick” from a record to support the conclusion, but rather must account for the context of

21 the whole record). The Court finds that the ALJ did not adequately identify the examination

22 findings upon which his decision was based to discount the findings of Dr. Bhavsar’s

23 opinion. Accordingly, the Court is unable to conclude whether the ALJ correctly weighed

24 Dr. Bhavsar’s opinion.

25 iii. The ALJ’s Rejection of Dr. Bhavsar’s “Severely Limited” Finding Of

Plaintiff

26

27 Third, the Court finds that the ALJ committed a legal error in concluding that Dr.

28 Bhavsar’s findings “support no more than moderate limitations” because the ALJ did not

1 explain how he came to this conclusion. AR at 37. Dr. Bhavsar explicitly found that

2 Plaintiff was “severely limited” in his ability to: (1) follow detailed instructions; (2) interact

3 with the public, coworkers, and supervisor; (3) comply with job rules, such as safety and

4 attendance; (4) respond to changes in a routine work setting; and (5) respond to work

5 pressure in a usual work setting. Id. at 513. Dr. Bhavsar relied on the available objective

6 medical evidence in the record and his examination of Plaintiff to make his assessment of

7 Plaintiff. The ALJ fails to explain how Dr. Bhavsar’s explicit findings of Plaintiff’s

8 “severely limited” functionality in certain areas supports the ALJ’s conclusion of

9 “moderate limitations.” Once again, the ALJ failed to provide specific and legitimate

10 reasons supported by substantial evidence in the record to discredit the explicit finding of

11 Dr. Bhavsar.

12 d. Conclusion

13 For the reasons stated herein, the ALJ erred in evaluating the opinion of Dr. Bhavsar.

14 The ALJ failed to meet his burden to provide “specific and legitimate reasons that are

15 supported by substantial evidence in the record” for rejecting the limitations identified by

16 Dr. Bhavsar. See Lester, 81 F.3d at 831. The ALJ’s error in evaluating the limitations

17 impacted the findings at step two related to the severity of Plaintiff’s mental impairments,

18 given the conclusions from Dr. Bhavsar regarding Plaintiff’s ability to interact with the

19 public, follow detailed instructions, comply with job rules, and respond to changes in a

20 usual work setting. The ALJ’s error was not harmless because if the ALJ had appropriately

21 considered the opinion of Dr. Bhavsar, the ALJ could have reached a different disability

22 determination. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir.

23 2006); see also Tomassetti v. Astrue, 533 F.3d 1035, 1038 (finding harmless error exists

24 “when it is clear from the record that the ALJ’s error was inconsequential to the ultimate

25 nondisability determination”) (internal quotation and citation omitted). Also, Dr. Bhavsar’s

26 opinion could have impacted the residual functional capacity at step four, where an ALJ

27 must include “all of [a claimant’s] medically determinable impairments,” whether severe

28

1 or not. 20 C.F.R. § 404.1545(a)(2). Accordingly, the Court GRANTS Plaintiff’s Motion

2 and DENIES Defendant’s Motion on this issue.

3 2. Adverse Credibility Determination

4 a. Summary of Parties’ Arguments

5 Plaintiff argues that the ALJ failed to state “clear and convincing reasons for

6 discounting his subjective complaints.” Pl.’s Mot. at 20. Plaintiff’s first argument in

7 support thereof is that “regarding both headaches and fibromyalgia the ALJ erred by simply

8 recounting benign clinical findings from Plaintiff’s physical examinations throughout the

9 record to reject symptoms of two disorders which are characterized by a lack of objective

10 examination findings.” Id. at 21. Plaintiff’s second argument in support thereof is that it is

11 legal error to “reject[] Plaintiff’s alleged symptoms of fibromyalgia solely because they

12 were ‘inconsistent with the objective medical evidence.’” Id. Rather, he argues that the

13 ALJ must “consider the context of the record as a whole to determine the severity of

14 Plaintiff’s alleged pain.” Id. Plaintiff argues that the record shows that Plaintiff consistently

15 reported pain which was also observed by his treating physicians. Id. at 22.

16 Defendant argues that Plaintiff fails to establish any reason to overturn the ALJ’s

17 decision. Def.’s Mot. at 11. First, Defendant argues that the “ALJ found that while the

18 record supported mental and physical functional limitations, it did not corroborate the

19 disabling degree of limitations that Plaintiff alleged.” Id. at 8. The Defendant states that

20 “the ALJ found the weight of the evidence, medical opinions, and Plaintiff’s treatment

21 history – best comported with the residual range of functioning delineated in Plaintiff’s

22 RFC.” Id. The Defendant states that “these constituted specific and legitimate reasons

23 supporting the ALJ’s decision to partially discount Plaintiff’s allegations.” Id. Second,

24 Defendant argues that the ALJ “properly found the medical-opinion evidence undermined

25 Plaintiff’s allegations.” Id. at 10. Here, Defendant states that all three state-agency

26

27

28

1 physicians who opined as to Plaintiff’s physical functioning found that he was capable of

2 performing a range of work consistent with his RFC.” Id. Third, Defendant argues that the

3 ALJ properly found that Plaintiff’s treatment history was consistent with Plaintiff’s RFC.

4 Id. In support thereof, Defendant notes that Plaintiff “largely received minimal and

5 sporadic treatment” for his allegations of disabling mental limitations. Id. Defendant

6 further notes that Plaintiff’s “treatment for physical impairments was similarly minimal

7 and sporadic.” Id. at 11.

8 b. Relevant Law

9 The Ninth Circuit has established a two-part test for evaluating a claimant’s

10 subjective symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).

11 “First, the ALJ must determine whether the claimant has presented objective medical

12 evidence of an underlying impairment which could reasonably be expected to produce the

13 pain or other symptoms alleged.” Id. (internal quotation marks and citations omitted). The

14 claimant, however, need not prove that the impairment reasonably could be expected to

15 produce the alleged degree of pain or other symptoms; the claimant need only prove that

16 the impairment reasonably could be expected to produce some degree of pain or other

17 symptom. Id. If the claimant satisfies the first element and there is no evidence of

18 malingering, then “the ALJ can [only] reject the claimant's testimony about the severity of

19 her symptoms only by offering specific, clear, and convincing reasons for doing so.” Id.;

20 see also Garrison, 759 F.3d at 1014-15. “General findings are insufficient; rather, the ALJ

21 must identify what testimony is not credible and what evidence undermines the claimant’s

22 complaints.” Reddick, 157 F.3d at 722 (quoting Lester, 81 F.3d at 834). The ALJ’s

23

24

25

2 The ALJ noted that he gave significant weight to the opinions of Dr. Lloyd Wiggins and

26

Dr. Susan Moner because their opinions “regarding light limitations [were] reasonable and

27 consistent with the medical evidence as a whole.” AR at 35. The ALJ also discussed and

assigned some weight to the opinion of Dr. Kenneth Stover because “his findings were

28

1 findings must be “sufficiently specific to permit the court to conclude that the ALJ did not

2 arbitrarily discredit [Plaintiff’s] testimony.” Thomas, 278 F.3d at 958.

3 Additionally, the Ninth Circuit has held that the “ALJ may not reject the claimant’s

4 statements regarding [his] limitations merely because they are not supported by objective

5 evidence.” See Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). To determine

6 whether Plaintiff’s testimony regarding the severity of his symptoms is credible the ALJ

7 may consider “unexplained or inadequately explained failure to seek treatment or to follow

8 a prescribed course of treatment.” See Tomassetti, 533 F.3d at 1039.

9 c. Analysis

10 The ALJ satisfied the first step of the analysis and determined that Plaintiff’s

11 impairment could reasonably have been expected to produce the pain alleged. AR at 32.

12 This first step is not contested by either party. Here, the ALJ did not cite evidence of

13 malingering and the Commissioner has not argued that there was evidence of malingering.

14 Id. at 32-33; Def.’s Mot. at 8-11. As a result, the Court must determine whether the ALJ

15 provided clear and convincing reasons for discounting Plaintiff’s subjective claims

16 regarding his symptoms. See Lingenfelter, 504 F.3d at 1036.

17 The ALJ identified two reasons for discounting Plaintiff’s subjective complaints.

18 AR at 32-33; First, the ALJ found that Plaintiff’s subjective complaints for pain symptoms

19 from “headaches, fibromyalgia, and neuropathic pain” were not supported by the

20 “objective medical evidence.” Id. Second, the ALJ found that Plaintiff’s subjective

21 complaints for his “psychiatric symptoms” “is not comparable to the frequency or extent

22 of treatment sought by the claimant.” Id. The Court will consider each reason individually.

23 i. Plaintiff’s Subjective Complaints for Pain Symptoms From

“Headaches, Fibromyalgia, and Neuropathic Pain”

24

25 First, the ALJ found that Plaintiff’s subjective complaints for pain symptoms from

26 “headaches, fibromyalgia, and neuropathic pain” were not supported by the “objective

27 medical evidence.” Id. at 32-33. The ALJ stated that Plaintiff’s allegations of his symptoms

28 from these conditions “are inconsistent with the evidence in the case record.” Id. at 32. The

1 ALJ further stated that although Plaintiff alleged pain from headaches, when physicians

2 examined Plaintiff in regard to his alleged symptoms, the findings were “generally

3 unremarkable.” Id. at 33 (citing Ex. 3F, p. 35, 83-84; Ex. 6F, p. 51, Ex. 1F, p. 10-11).

4 The Court finds that the ALJ’s conclusory findings are not sufficiently specific to

5 explain why plaintiff’s alleged pain limitations are not supported by the physical findings

6 in the record. Substantial evidence in the record does not support the ALJ’s conclusion.

7 For example, the ALJ cited Exhibit 3F, pages 34 to 35, in support of his conclusion that

8 Plaintiff’s physical findings failed to support his subjective complaints. AR at 296-297.

9 The ALJ summarized Plaintiff’s medical note from Plaintiff’s office visit with Dr. Bilbao

10 on January 15, 2015 as follows: “[I]n January 2015, upon physical examination, he was

11 pleasant and well-appearing, with no positive, objective physical findings reported.” Id. at

12 33. Notably, the ALJ fails to note that in the same medical record, Dr. Bilbao stated that

13 Plaintiff’s reason for the visit was for his back pain and chronic migraine headaches. Id. at

14 296. Dr. Bilbao further noted that the patient experiences “daily headaches [that] are lasting

15 5-24 hours, pain in eyes, neck pain.” Id. Dr. Bilbao stated that his chronic headaches “have

16 been going on for years” and that the patient was requesting a referral to the neurologist.

17 Id. She noted that she last saw Plaintiff on May 14, 2015 “for [the] same [chief

18 complaints].” Id. Dr. Bilbao notes that she referred Plaintiff to a neurologist. Id. at 298. It

19 is evident from the Court’s review of the record that the ALJ selectively highlighted certain

20 benign findings from Plaintiff’s record, while ignoring others, which is not permitted. See

21 Holohan, 246 F.3d at 1207.

22 Similarly, the ALJ summarized Plaintiff’s medical note from his office visit on

23 December 21, 2016 with Dr. Ramani Hami as follows: “In December 2016, the claimant

24 presented for another neurology consultation with complaints of chronic migraines, but

25 neurologic examination findings were unremarkable.” AR at 33. Notwithstanding

26 Plaintiff’s neurologic findings, Dr. Hami noted that Plaintiff has a “migraine history”

27 including “throbbing usually on the right side (usually starts with neck pain up to the front

28 then back the neck), + light sensitivity, + sound sensitivity, sometimes nausea, visual aura

1 (has had visual distortion with more severe headaches); patient says he now has daily

2 headaches that emanates from his neck up to head, feels band-like, this sensation is

3 constant.” Id. at 420. Dr. Hami further noted that the frequency of the headaches is “four

4 times per month” and the duration is “72 hours.” Id. Dr. Hami stated that Plaintiff has

5 suffered from these headaches “since high school” and lists the therapies that Plaintiff has

6 tried. Id. Dr. Hami noted in his “assessment” of Plaintiff that he “has PTSD and

7 fibromyalgia that are certainly playing a role in patient’s pain threshold.” Id. at 422. Dr.

8 Hami noted the plan for Plaintiff’s medication regimen and also noted that he “will be

9 going to acupuncture and biofeedback through pain management.” Id. It is unclear from

10 the ALJ’s order why a purported lack of Plaintiff’s physical examination findings from

11 Plaintiff’s neurologic examination discredits Plaintiff’s subjective complaints about his

12 headaches. In sum, the Court finds that the ALJ failed to address the limitations reported

13 by Plaintiff and specifically what medical evidence undermines Plaintiff’s credibility as to

14 the specific limitation(s).

15 To the extent the ALJ based his conclusion about Plaintiff’s adverse credibility on

16 Plaintiff’s specific testimony from the hearing, the Court also finds that the ALJ failed to

17 meet his burden. Id. at 32. The ALJ fails to identify the specific statements Plaintiff made

18 that the ALJ decided were not credible, and thus does not provide the necessary information

19 for meaningful judicial review. See Brown-Hunter v. Colvin, 804 F.3d 487, 492 (9th Cir.

20 2015) (“If the ALJ fails to specify his or her reasons for finding claimant testimony not

21 credible, a reviewing court will be unable to review those reasons meaningfully without

22 improperly ‘substitut[ing] our conclusions for the ALJ’s, or speculat[ing] as to the grounds

23 for the ALJ’s conclusions.’”) (citation omitted). In the ALJ’s written decision, in support

24 of his adverse credibility finding of Plaintiff, he stated that the alleged severity of Plaintiff’s

25 pain symptoms was “inconsistent with the evidence in the case record.” AR at 32. The ALJ

26 stated “[f]or example, the claimant maintained he experiences incapacitating headaches on

27 a daily basis, including migraines lasting up to 72 hours on a weekly basis.” Id. (citing

28 Testimony). The ALJ’s vague reference to Plaintiff’s statements are not specific

1 identifications of which statements are being discredited. Holohan, 246 F.3d at 1208 (9th

2 Cir. 2001) (holding that “the ALJ must specifically identify the testimony she or he finds

3 not to be credible and must explain what evidence undermines the testimony.”). The ALJ

4 fails to explain why the statements are not credible or to link them to parts of the record

5 supporting his finding that the statements are not credible. On the contrary, Plaintiff’s

6 medical record dated December 21, 2016 corroborates that Plaintiff experiences headaches

7 “four times per month” for a duration of “72 hours.” AR at 420. Because the ALJ failed to

8 properly identify the statements he found not credible and the specific evidence that

9 undermines Plaintiff’s specific subjective testimony, the Court is unable to evaluate the

10 adequacy or legitimacy of the ALJ’s findings.

11 With respect to Plaintiff’s subjective complaints about fibromyalgia, a lack of

12 objective medical evidence regarding Plaintiff’s fibromyalgia pain is an insufficient basis

13 to disregard Plaintiff’s subjective complaints. See Revels v. Berryhill, 874 F.3d 648, 656

14 (9th Cir. 2017). As the Court found in Revels:

15 Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous

connective tissue components of muscles, tendons, ligaments, and other

16

tissue. Typical symptoms include chronic pain throughout the body, multiple

17 tender points, fatigue, stiffness, and a pattern of sleep disturbance that can

exacerbate the cycle of pain and fatigue. What is unusual about the disease is

18

that those suffering from it have muscle strength, sensory functions, and

19 reflexes that are normal. Their joints appear normal, and further

musculoskeletal examination indicates no objective joint swelling. Indeed,

20

there is an absence of symptoms that a lay person may ordinarily associate

21 with joint and muscle pain. The condition is diagnosed entirely on the basis

of the patients' reports of pain and other symptoms. There are no laboratory

22

tests to confirm the diagnosis. . . .

23

Therefore, diagnosis of fibromyalgia does not rely on X-rays or MRIs.

24

Further, SSR 12-2P recognizes that the symptoms of fibromyalgia wax and

25 wane, and that a person may have bad days and good days. In light of this, the

ruling warns that after a claimant has established a diagnosis of fibromyalgia,

26

an analysis of her RFC should consider a longitudinal record whenever

27 possible.

28

1 Id. (internal quotations and citations omitted); see also Benecke v. Barnhart, 379 F.3d 587,

2 594 (9th Cir. 2004) (“The ALJ erred in discounting the opinions of Benecke’s treating

3 physicians, relying on his disbelief of Benecke’s symptom testimony as well as his

4 misunderstanding of fibromyalgia”).

5 Here, the ALJ stated broadly that Plaintiff’s “allegations regarding the severity of

6 pain symptoms from fibromyalgia are inconsistent with the objective medical evidence as

7 a whole.” AR at 33. In support, the ALJ cited a few examples of what the ALJ stated were

8 “some positive findings supporting a diagnosis and treatment for fibromyalgia (Exs. 3F, p.

9 70; 6F, p. 30).” Id. However, as set forth in Revels, a lack of objective medical evidence

10 regarding Plaintiff’s fibromyalgia pain is an insufficient basis to disregard Plaintiff’s

11 subjective complaints. Additionally, the Court’s own review of the record reveals that there

12 is objective medical evidence in the record to establish that Plaintiff suffered from

13 debilitating pain from his fibromyalgia during the time period in issue. See, e.g., AR at 332

14 (on September 15, 2015, Plaintiff was treated for fibromyalgia with constant, aching pain,

15 tiredness, difficulty sleeping, and abdominal pain); AR at 363 (on November 9, 2015,

16 Plaintiff reported severe 10/10 pain in the sacrum, hips, and pelvis, such that he was barely

17 able to stand up and use the bathroom); AR at 356-57 (on December 2, 2015, Plaintiff was

18 administered injections to treat fibromyalgia pain and an examination revealed tenderness

19 over the upper trapezius, the lumbar paraspinals, and glutei bilaterally); AR at 451 (on

20 November 30, 2017, Plaintiff was treated for chronic pain and complained that carrying a

21 gallon of milk for two minutes can trigger a flare of symptoms that lasts up to three days).

22 Accordingly, the Court finds that the ALJ failed to properly analyze Plaintiff’s

23 fibromyalgia-related symptoms pursuant to SSR 12-2P and Benecke. In evaluating

24 whether a claimant’s residual functional capacity renders them disabled because of

25 fibromyalgia, the medical evidence must be construed in light of fibromyalgia’s unique

26 symptoms and diagnostic methods, as described in SSR 12-2P and Benecke. The failure to

27 do so constitutes error.

28 / / /

1 ii. Plaintiff’s Subjective Complaints about his Psychiatric

Symptoms

2

3 Regarding Plaintiff’s subjective complaints about his psychiatric symptoms, the ALJ

4 assigned little weight to Plaintiff’s statements because “the frequency, or extent of mental

5 health treatment sought is not comparable to the degree of the claimant’s subjective

6 complaints.” AR at 34. The ALJ noted that from the onset date through December 2015,

7 “the record shows the claimant received only very limited mental health treatment,

8 consisting of psychotropic medications prescribed in April 2015 and November 2015 []

9 and some psychotherapy [].” Id. The ALJ further noted that Plaintiff received only “limited

10 and intermittent mental health treatment between January 2017 and April 2017,” and that

11 he did not present for medical treatment between November 2015 and December 2016. Id.

12 Inconsistent treatment is a sufficient basis to find that Plaintiff’s subjective complaints are

13 not credible. See Tommasetti, 533 F.3d at 1039.

14 As an initial matter, the ALJ’s evaluation of Plaintiff’s mental health treatment is

15 inconsistent with the medical evidence in the record for the reasons set forth in the previous

16 section. See, e.g., AR at 389-90; AR at 396; AR at 403; AR at 409-10; AR at 421-22; AR

17 at 430; AR at 440; AR at 444; AR at 451; AR at 454; AR at 482-83; AR at 489; AR at 491.

18 The ALJ’s decision also fails to adequately consider Plaintiff’s mental health

19 treatment from Vivian Coles. AR at 33-37. As set forth above, on December 2, 2015,

20 Vivian Coles, LPC, MA, wrote a letter explaining that she has treated Plaintiff for

21 psychotherapy since September 1, 2012 to the present. Id. at 350. The ALJ noted Ms.

22 Cole’s treatment letter in his opinion, and stated:

23 The undersigned gives some weight to the statements of Ms. Vivian Coles,

but only to the extent that they support the claimant’s diagnosis and history of

24

treatment for PTSD. However, since Ms. Coles did not provide a functional

25 assessment of the claimant’s mental limitations, no further consideration is

given to her statements.

26

27

28

1 Id. at 37. The Court finds that the ALJ’s reasoning is not clear and convincing because Ms.

2 Coles’ statement contradicts the ALJ’s finding that Plaintiff has significant gaps in his

3 mental health treatment.

4 Further, even if Ms. Coles did not demonstrate that Plaintiff sought consistent mental

5 health treatment, the Ninth Circuit has held that “we do not punish the mentally ill for

6 occasionally going off their medication when the record affords compelling reason to view

7 such departures from prescribed treatment as part of claimants’ underlying mental

8 afflictions.” Garrison, 759 F.3d at 1018 n.24; Nguyen v. Chater, 100 F.3d 1462, 1465 (9th

9 Cir. 1996).

10 Finally, if the ALJ felt that he did not have enough information in the record from

11 Ms. Coles to evaluate Plaintiff’s credibility, he had a duty to develop the record. Where a

12 physician’s report is insufficient to make a disability determination, the ALJ is required to

13 recontact a doctor. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); see also

14 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ’s duty to develop the

15 record further is triggered . . . when there is ambiguous evidence or when the record is

16 inadequate to allow for proper evaluation of the evidence.”); Brown v. Heckler, 713 F.2d

17 441, 443 (9th Cir. 1983) (holding an ALJ has a special duty to fully and fairly develop the

18 record and to assure that the claimant’s interests are considered, even when the claimant is

19 represented by counsel.). As Ms. Coles did not provide any such functional assessment of

20 the claimant’s mental limitations, the ALJ could have obtained this information. See

21 Tonapetyan, 242 F.3d at 1150; see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir.

22 2011) (holding that an ALJ must be “especially diligent” with this duty when the claimant

23 is unrepresented).

24 Here, the ALJ did not provide clear and convincing reasons to reject Plaintiff’s

25 symptom testimony regarding his mental impairment. In sum, after reviewing the

26 administrative record and the arguments submitted by both Parties, the Court finds that the

27 ALJ’s determination was not supported by clear and convincing reasons to reject Plaintiff’s

28 psychiatric symptom testimony.

1 3. ALJ’s RFC Finding at Step Four

2 a. Summary of Parties’ Arguments

3 Plaintiff argues that “the ALJ failed to include the work-related limitations in the

4 RFC consistent with the nature and intensity of Plaintiff’s limitations.” Pl.’s Mot. at 20.

5 Plaintiff claims that the “ALJ failed to properly consider Plaintiff’s fibromyalgia pain as

6 required by the regulations, and to account for his limitations due to his subjective pain in

7 the RFC.” Id. at 22. Plaintiff further argues that the ALJ also “ignored that there is no

8 objective test to confirm the presence of a migraine disorder, and rejected Plaintiff’s

9 symptoms based upon a lack of physical findings.” Id. In sum, Plaintiff alleges that “the

10 ALJ failed to set for[th] any clear reason for rejecting [Plaintiff’s] alleged pain limitations

11 and resulting physical limitations, and this error warrants remand for proper consideration

12 of Plaintiff’s pain and resulting functional limitations.” Id. at 23.

13 Defendant argues that the evidence supports the “minimal level of cognitive and

14 social functioning set forth in Plaintiff’s RFC.” Def.’s Mot. at 5-6. First, Defendant states

15 that all three physicians who provided an opinion regarding Plaintiff’s physical functioning

16 “opined he was capable of performing a range of work consistent with his RFC.” Id. at 10.

17 Defendant also argues that the “ALJ properly found Plaintiff’s treatment history was

18 consistent with Plaintiff’s RFC.” Id. at 10. In sum, Defendant argues that Plaintiff does not

19 explain how “his allegations of pain and receipt of treatment constituted medical findings

20 compelling concrete functional limitations beyond his restrictive RFC.” Id. at 11.

21 b. Relevant Law

22 The RFC is the maximum a claimant can do despite her limitations. 20 C.F.R. §§

23 404.1545, 416.945. In determining the RFC, the ALJ must consider limitations imposed

24 by all of a claimant’s impairments, even those that are not severe and evaluate all of the

25 relevant medical and other evidence, including the claimant’s testimony. SSR 96-8p,

26 available at 1996 WL 374184. The ALJ is responsible for resolving conflicts in the medical

27 testimony and translating the claimant’s impairments into concrete functional limitations

28 in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only

1 limitations supported by substantial evidence must be incorporated into the RFC and, by

2 extension, the dispositive hypothetical question posed to the Vocational Expert. Osenbrock

3 v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).

4 c. Analysis and Conclusion

5 Here, because none of the reasons that the ALJ provides for rejecting Plaintiff’s

6 symptom statements were clear and convincing, the Court finds that the ALJ’s rejection of

7 Plaintiff’s symptom statements was not supported by substantial evidence in the record.

8 Moreover, because Plaintiff’s statements and the evidence discussed above suggest that

9 Plaintiff has greater limitations than the ALJ accounted for in the RFC, the Court finds that

10 the ALJ’s RFC and step four findings are not supported by the record because they do not

11 account for all the functional limitations described in Plaintiff’s testimony and the medical

12 records. As such, the Court finds that the ALJ’s decision is not supported by substantial

13 evidence in the record.

14 4. Remand Versus Award for Benefits

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

16 proceedings or simply aware benefits is within the discretion of the Court. McAllister v.

17 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see also Lewin v. Schweiker, 654 F.2d 631,

18 635 (9th Cir. 1981). Remand is warranted where additional proceedings could remedy

19 defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984;

20 Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful

21 purpose would be served by further administrative proceedings, Kornock v. Harris, 648

22 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v.

23 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay

24 the receipt of benefits for which the disabled plaintiff is entitled, Bilby v. Schweiker, 762

25 F.2d 716, 710 (9th Cir. 1985).

26 Here, the Court has concluded that further administrative proceedings would serve

27 a meaningful purpose to address the errors identified herein. Therefore, this Court

28

1 ||} REVERSES the ALJ’s decision and REMANDS for further proceedings to address the

2 || errors noted in this Order.

3 VII. CONCLUSION

4 For the reasons set forth above, this Court RECOMMENDS that Plaintiff’s Motion

5 ||for Summary Judgment be GRANTED, that Defendant’s Cross-Motion for Summary

6 || Judgment be DENIED, and that judgment be entered REVERSING the decision of the

7 Commissioner and REMANDING this matter for further administrative proceedings.

8 IT IS HEREBY ORDERED that any written objections to this Report and

9 ||Recommendation must be filed with the Court and served on all parties on or before

10 November 2, 2020. The document should be captioned “Objections to Report and

11 ||Recommendation.”

12 IT IS FURTHER ORDERED that any reply to the objections shall be filed with

13 ||the Court and served on all parties on or before November 16, 2020. The parties are

14 || advised that failure to file objections within the specified time may waive the right to raise

15 || those objections on appeal of the Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

16 1998); Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991).

17 || Dated: October 19, 2020 NO

18 DEF

19 Honorable Linda Lopez

United States Magistrate Judge

21

22

23

24

25

26

27

28