ALJ’s findings must be 25 “sufficiently specific to allow a reviewing court to conclude the ALJ rejected 26 the claimant’s testimony on permissible grounds”
How later courts described this case
- ALJ’s findings must be 25 “sufficiently specific to allow a reviewing court to conclude the ALJ rejected 26 the claimant’s testimony on permissible grounds”
- courts “are constrained to review the 13 reasons the ALJ asserts”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JUANITA R., Case No.: 21cv1296-MDD
12 Plaintiff,
ORDER:
13 v.
1) RESOLVING JOINT MOTION
14
KILOLO KIJAKAZI,1 Acting FOR JUDICIAL REVIEW;
15 Commissioner of Social Security, 2) VACATING THE
COMMISSIONER’S FINAL
16 Defendant.
DECISION; AND
17 3) REMANDING FOR
FURTHER PROCEEDINGS
18
19
[ECF No. 14]
20
21 Juanita R. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g)
22 for judicial review of the final administrative decision of the Commissioner of
23 the Social Security Administration (“Commissioner”) denying Plaintiff’s Title
24 XVI application for Social Security Disability Insurance (“SSDI”) benefits.
25
26 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9,
2021. She is substituted for her predecessor as Defendant in this action. See
1 (ECF No. 1). The parties filed a Joint Motion for Judicial Review of the
2 Administrative Law Judge’s (“ALJ”) decision (“Joint Motion”). (ECF No. 14).
3 For the reasons expressed below, the Court VACATES the
4 Commissioner’s decision and REMANDS the case to the ALJ for further
5 proceedings consistent with this opinion.
6 BACKGROUND
7 SSDI generally entitles an insured to benefits when health impairments
8 preclude the insured from working for 12 months or more. See 42 U.S.C.
9 §§ 423(a)(1), (d)(1); 20 C.F.R. § 404.1509. Plaintiff alleges that, following a
10 car accident and other life stressors, she suffered a back injury, anxiety,
11 depression, and finger and toe immobility. (See AR at 192).2 Her
12 employment was terminated on April 23, 2018, and she alleges that she was
13 disabled and unable to work for at least 12 months following that date. (Id. at
14 170). After her application was denied initially and upon reconsideration,
15 Plaintiff requested an administrative hearing before an ALJ. An
16 administrative hearing was held on July 6, 2020. (Id. at 50–69). Plaintiff
17 appeared without being represented by counsel. (Id. at 53). The ALJ took
18 testimony from Plaintiff and from Alan Cummings, an impartial vocational
19 expert. (See id. at 50–69). On September 22, 2020, the ALJ issued a decision
20 denying Plaintiff’s claim. (Id. at 13–28).
21 Plaintiff filed this action seeking judicial review of the Commissioner’s
22 decision to deny her application for benefits. (ECF No. 1). She contends that
23 the ALJ erred in: 1) discrediting Plaintiff’s testimony as to the intensity,
24 persistence, and limiting effects of her symptoms; 2) failing to properly
25
26
2 “AR” refers to the Certified Administrative Record filed on January 21,
1 consider her mental limitations; and 3) concluding, based on the remaining
2 evidence, that her impairments were non-severe. Plaintiff is correct on each
3 point.
4 DISCUSSION
5 A. Standard of Review
6 Sections 405(g) and 1383(c)(3) of the Social Security Act allow
7 unsuccessful applicants to seek judicial review of a final agency decision.
8 42 U.S.C. §§ 405(g), 1383(c)(3). A court’s review is limited to assessing
9 whether the ALJ applied the correct legal standard and supported his
10 conclusions with substantial evidence. Buck v. Berryhill, 869 F.3d 1040, 1048
11 (9th Cir. 2017).
12 Substantial evidence “is a ‘term of art’ used throughout administrative
13 law to describe how courts are to review agency factfinding.” Biestek v.
14 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing
15 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to
16 support the agency’s factual determinations.” Id. (quoting Consolidated
17 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he threshold for such
18 evidentiary sufficiency is not high. . . It means—and means only—‘such
19 relevant evidence as a reasonable mind might accept as adequate to support
20 a conclusion.’” Id. (quoting Consolidated Edison, 305 U.S. at 229).
21 This standard does not permit a one-sided search for evidence that
22 would support the ALJ’s conclusion if viewed in isolation from the rest of the
23 record. Instead, it requires the ALJ and courts to “consider the entire record
24 as a whole, weighing both the evidence that supports and the evidence that
25 detracts from the Commissioner’s conclusion,” and a court “may not affirm by
26 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759
1 (9th Cir. 2021) (substantial evidence standard requires court to “weigh[] the
2 evidence both supporting and detracting from the agency’s conclusion]”).
3 Where the agency’s denial of benefits is not supported by substantial
4 evidence or results from application of an incorrect legal standard, a
5 reviewing court may enter a judgment modifying or reversing the
6 Commissioner’s decision and it may remand the cause for a rehearing.
7 42 U.S.C. §§ 405(g), 1383(c)(3).
8 B. Summary of the ALJ’s Findings
9 In rendering his decision, the ALJ followed the Commissioner’s five-step
10 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the
11 ALJ found that Plaintiff had not engaged in substantial gainful activity since
12 April 23, 2018. (AR at 18).
13 At step two, the ALJ found that Plaintiff had the following medically
14 determinable impairments: “lumbago status post motor vehicle accident,
15 sciatica, cervical degenerative disc disease, diabetes mellitus type II, obesity,
16 liver mass right lobe, hyperlipidemia, depressive disorder, and anxiety
17 disorder.” (Id. at 18–19). He then determined that these impairments,
18 individually and in combination, had not “significantly limited . . . [Plaintiff’s]
19 ability to perform basis work-related activities for 12 consecutive months.”
20 (Id. at 19). Because this finding was fatal to Plaintiff’s claim to eligibility for
21 benefits, the ALJ did not proceed to the third or subsequent steps. (Id. at 24).
22 As relevant to this Order, Plaintiff supported her application for SSDI
23 benefits with her own testimony as to the severity of her symptoms, records
24 of a psychiatric examination conducted by Dmitriy Sivtsov, M.D., and other
25 medical records spanning over two years of mental and physical health care.
26 (AR at 52–63, 275–334; see generally id. at 234–49, 335–914). The ALJ, in
1 [T]he claimant’s statements about the intensity, persistence, and
limiting effects of her symptoms, they are inconsistent because the
2
objective medical evidence indicates that the claimant’s symptoms
3 improved and stabilized with treatment, including physical
therapy, counseling, and medication. Her gait has been repeatedly
4
described as normal. While her mental symptoms have been
5 exacerbated by life stressors, she has not been hospitalized for a
mental impairment during the relevant period and her symptoms
6
responded to treatment when she took her medication as
7 prescribed. Her reported daily activities suggest a greater level of
functioning than alleged. For example, she can drive, she can shop
8
for groceries, she can prepare her own meals, she takes her
9 daughter to school, she can do household chores, and she has no
problem with her personal care.
10
11 (Id. at 22).
12 As to Dr. Sivtsov’s opinion, the ALJ found:
13 [The] opinion is unpersuasive because it is inconsistent with and
not supported by the objective medical evidence. His opinion was
14
provided for the claimant’s workers’ compensations claim and his
15 opinion appears to rely more on the claimant’s subjective reports
rather than objective findings. Notably, Dr. Sivsov considered test
16
results from his mental status exam of the claimant to be invalid
17 because there was a very high likelihood of random responding (Ex.
1F at 9-11). The objective medical evidence indicates that the
18
claimant’s mental symptoms have been exacerbated by life
19 stressors, but her symptoms have generally improved and
stabilized with counseling and taking her medication as prescribed.
20
She has not been hospitalized for a mental impairment during the
21 relevant period. In addition, her reported daily activities suggest a
greater level of functioning than alleged. For example, she can
22
drive, she can shop for groceries, she can prepare her own meals,
23 she takes her daughter to school, she can do household chores, and
she has no problem with her personal care.
24
25 (Id. at 23–24).
26 Because he concluded that Plaintiff’s impairments were non-severe, the
1 Social Security Appeals Council affirmed. (AR at 6–8).
2 C. Issues in Dispute
3 The issues in dispute are: 1) whether the ALJ erred in discrediting
4 Plaintiff’s testimony as to the intensity, persistence, and limiting effects of
5 her symptoms; 2) whether the ALJ erred by failing to properly consider
6 Plaintiff’s mental limitations; and 3) whether the ALJ erred in concluding
7 that Plaintiff did not have a severe impairment or combination of
8 impairments for 12 consecutive months after April 23, 2018.
9 1. The ALJ Failed to Give Specific, Clear and Convincing
10 Reasons for Discrediting Plaintiff’s Testimony
11 The ALJ first erred in finding Plaintiff’s statements about the intensity,
12 persistence, and limiting effects of her symptoms “inconsistent” and therefore
13 not credible. (AR at 22). An ALJ has limited discretion to disbelieve a
14 claimant’s testimony as to the severity of her symptoms. See Lingenfelter v.
15 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Where there is objective medical
16 evidence of an impairment which could reasonably be expected to produce
17 “some degree” of the alleged symptoms, an ALJ can discredit such testimony
18 only by either: 1) identifying evidence of malingering; or 2) giving “specific,
19 clear and convincing reasons” for finding the testimony not credible. Id.
20 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). To be
21 sufficiently specific, the ALJ must “identify which testimony she found not
22 credible” and “explain[] which evidence contradicted that testimony.” Brown-
23 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015); see also Rollins v.
24 Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001) (ALJ’s findings must be
25 “sufficiently specific to allow a reviewing court to conclude the ALJ rejected
26 the claimant’s testimony on permissible grounds”) (cleaned up). To be “clear
1 supported by substantial evidence in the record. See Holohan v. Massanari,
2 246 F.3d 1195, 1208 (9th Cir. 2001).
3 Here, the ALJ found that the objective medical evidence supported the
4 conclusion that Plaintiff suffered impairments that could reasonably be
5 expected to produce some degree of her alleged symptoms. (AR at 22.) He
6 declined to credit Plaintiff’s unspecified “statements about the intensity,
7 persistence, and limiting effects of her symptoms,” though, for two reasons.
8 First, he found that those statements were “not entirely consistent with the
9 medical evidence and other evidence in the record.” (Id.). Second, he
10 indicated that her reported daily activities “suggest[ed] a greater level of
11 functioning than alleged.” (Id.).
12 Ninth Circuit precedent required the ALJ to identify specific statements
13 he found not credible; he did not do so. See Brown-Hunter, 806 F.3d at 494
14 (ALJ must “identif[y] which testimony she found not credible”). The same
15 precedent required the ALJ to identify specifically the medical evidence that
16 the ALJ claimed to contradict Plaintiff’s statements; he did not do so. See id.
17 (ALJ must “explain which evidence contradicted that testimony”). And it
18 required that the ALJ identify, in the reported daily activities evidence that
19 the he relied on, “such relevant evidence as a reasonable mind might accept
20 as adequate to support [his] conclusion” that she suffered from a severe
21 impairment for a twelve-month period after April 23, 2018; he did not do
22 that, either. Biestek, 139 S. Ct. at 1154. Due to these errors, the ALJ’s
23 proffered explanations are not “specific, clear and convincing reasons”
24 sufficient to warrant discrediting Plaintiff’s testimony.
25 a. The ALJ Omitted to Identify Specific Testimony He Did Not Find
26 Credible
1 not credible about the intensity, persistence, and limiting effects of Plaintiff’s
2 symptoms. He found only that “the claimant’s statements [regarding] her
3 symptoms . . . are not entirely consistent with the medical evidence and other
4 evidence in the record,” then proceeded to discuss those statements only as
5 an undifferentiated whole. (AR at 22). The Ninth Circuit has repeatedly
6 found that this language, when presented without further explanation, is
7 “generic . . . boilerplate” that does not rise to the level of a specific, clear and
8 convincing reason to discount a claimant’s symptom testimony. Lambert v.
9 Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (cleaned up); see also Treichler v.
10 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014); Brown-
11 Hunter, 806 F.3d at 493.
12 The ALJ in this case did not identify any non-credible statements
13 beyond this general reference to “[Plaintiff’s] statements [regarding] her
14 symptoms.” (AR at 22). Accordingly, the Court “cannot review whether the
15 ALJ provided specific, clear, and convincing reasons for rejecting [Plaintiff’s]
16 pain testimony where, as here, the ALJ never identified which testimony [he]
17 found not credible.” Lambert, 980 F.3d at 1277 (quoting Brown-Hunter, 806
18 F.3d at 494); see also Eldridge v. Berryhill, No. 17cv497-JLS (BLM), 2018 WL
19 2357147, at *8 (S.D. Cal. May 23, 2018) (“[V]ague references” to “allegations
20 of disabling limitations” not sufficiently specific), adopted by Eldridge v.
21 Berryhill, No. 17cv497-JLS (BLM), 2018 WL 3343099 (S.D. Cal. July 9, 2018).
22 Because the ALJ failed to identify any specific testimony that he found
23 not credible, he did not offer specific, clear and convincing reasons to discredit
24 Plaintiff’s symptom testimony as a whole.
25 b. The ALJ Failed to Specify Medical Evidence Inconsistent with
26 Plaintiff’s Testimony
1 contradicted Plaintiff’s (unspecified) testimony. Before setting Plaintiff’s
2 symptom testimony aside, the ALJ must “explain[] which evidence
3 contradicted that testimony.” Brown-Hunter, 806 F.3d at 494. As with
4 general references to a claimant’s testimony as a whole, “[p]roviding a
5 summary of medical evidence is not the same as providing clear and
6 convincing reasons for finding the claimant’s symptom testimony not
7 credible.” Id.
8 Here, the ALJ found that Plaintiff’s statements were not “entirely
9 consistent with the medical evidence” and proceeded to summarize the
10 medical evidence:
11 As for the claimant’s statements about the intensity, persistence,
and limiting effects of her symptoms, they are inconsistent
12
because the objective medical evidence indicates that the
13 claimant’s symptoms improved and stabilized with treatment,
including physical therapy, counseling, and medication. Her gait
14
has been repeatedly described as normal. While her mental
15 symptoms have been exacerbated by life stressors, she has not
been hospitalized for a mental impairment during the relevant
16
period and her symptoms responded to treatment when she took
17 her medication as prescribed.
18 (AR at 22).
19 As where the ALJ fails to identify specific contradicted testimony, the
20 Court “cannot review whether the ALJ provided specific, clear, and
21 convincing reasons for rejecting [Plaintiff’s] pain testimony where . . . the
22 ALJ . . . never explained which evidence contradicted that testimony.”
23 Lambert, 980 F.3d at 1277. The ALJ’s summary points to no specific
24 evidence that would enable the Court to review his reasoning. For example,
25 where the decision states that Plaintiff’s “gait has been repeatedly described
26 as normal,” (AR at 22), the Court cannot determine why the ALJ rejected
1 behavior.” (Id. at 20). Further medical evidence that Plaintiff’s gait was
2 “abnormal” resulting in “[l]imited functional capacity” does not appear to
3 have been considered at all. (Id. at 751–52). Nor can the Court evaluate,
4 lacking any specifically identified evidence, whether the “physical therapy,
5 counseling, and medication” successfully “improved and stabilized” Plaintiff’s
6 symptoms less than 12 months after the beginning of Plaintiff’s disability
7 period, as would be necessary to support a non-severity finding. (Id. at 22);
8 see 42 U.S.C. § 423(d)(1)(A) (defining “disability” as “inability to engage in
9 any substantial gainful activity . . . for a continuous period of not less than 12
10 months”). While it may be possible to fill in the blanks in the ALJ’s
11 reasoning, doing so would exceed the bounds of the Court’s limited review.
12 See Brown-Hunter, 806 F.3d at 494 (courts “are constrained to review the
13 reasons the ALJ asserts”).
14 Because the ALJ failed to identify specific medical evidence
15 contradicting any specific statement by Plaintiff, those purported
16 contradictions are not specific, clear and convincing reasons warranting his
17 determination that Plaintiff’s symptom testimony was not credible.
18 c. Plaintiff’s Reported Activities of Daily Living Are Not Specific,
19 Clear and Convincing Reasons to Reject Her Testimony
20 The ALJ’s second set of evidence purportedly contradicting Plaintiff’s
21 statements—Plaintiff’s reported activities of daily living—also fails to meet
22 the “specific, clear and convincing reasons” standard. In the context of daily
23 activities, that standard requires an ALJ either to: 1) specify the activities
24 and the statements they contradict; or 2) make “specific findings relating to
25 the daily activities’ transferability” to a work setting. Orn v. Astrue, 495 F.3d
26 625, 639 (9th Cir. 2007) (internal marks and citation omitted).
1 statements that Plaintiff’s reported daily activities contradict. He also failed
2 to: 1) provide substantial evidence for his characterization of Plaintiff’s daily
3 activities; 2) provide substantial evidence for imputing her daily activities in
4 the summer of 2020 to the entire 26-month period preceding her hearing; and
5 3) consider how her daily activities, accounting for the long periods of rest she
6 needed after performing those activities, could transfer to a work setting.
7 While the decision specifically identifies the activities that purportedly
8 undermine Plaintiff’s credibility, (see AR at 22), the record does not support
9 its characterization of those activities or the conclusion that the activities
10 demonstrate that Plaintiff has not had a severe impairment for a twelve-
11 month period after April 23, 2018.
12 First, the ALJ characterized Plaintiff’s testimony and submissions as
13 conceding that she “can do household chores.” (Id. at 22). But she indicated
14 in her August 14, 2019 Function Report that she could “[n]ot [do] much” in
15 the way of household chores due to “back pain + depression.” (Id. at 219).
16 Her July 6, 2020 testimony related to household chores was limited to a
17 statement that “[she] do[es] [the laundry], but [her] daughter . . . helps [her]
18 pull out the stuff and pick it up and --.” (Id. at 60).3 The ALJ’s
19 characterization of this evidence as demonstrating that Plaintiff can do
20 household chores is erroneous.
21 Second, his reasoning that Plaintiff’s ability to cook and shop for
22 groceries is inconsistent with her claim is flawed, too. Plaintiff’s evidence
23 indicates that she could “sometimes” prepare “salads or greens” in August
24 2019, (id. at 219), she “just started” cooking a month before her July 2020
25
26 3 At this point in the transcript, the ALJ's interruption appears to have
prevented Plaintiff from offering further information on tasks she was unable
1 hearing, and, at the time of that hearing, she had “started [grocery shopping],
2 too.” See 42 U.S.C. §§ 423(a)(1), (d)(1); 20 C.F.R. § 404.1509; (AR at 60).
3 The ALJ properly characterized these statements as establishing that
4 Plaintiff “[could, in July 2020,] shop for groceries [and] prepare her own
5 meals.” (AR at 22). But without more, these facts do not establish his
6 conclusion that Plaintiff did not “have an impairment or combination of
7 impairments that has significantly limited . . . the ability to perform basic
8 work-related activities for 12 consecutive months.” (Id. at 19 (emphasis
9 added), citing 20 CFR 404.1521 et seq. and 20 CFR 416.921 et seq.). Plaintiff
10 claims that her period of disability began April 23, 2018, and so her claim
11 required only that she show disability through at least April 22, 2019. (Id. at
12 170.) Her July 2020 statements that she had “just started” cooking around
13 June 2020 and similarly had “started” grocery shopping indicate that she had
14 recently been unable to do those things. (Id. at 60.) In other words, this
15 testimony supports, rather than contradicts, her claim to disability through
16 at least April 22, 2019. (Id. at 16, 60). Moreover, as the ALJ acknowledges,
17 Plaintiff’s “symptoms improved and stabilized” over time. (Id. at 22). This
18 finding undermines any inference that, because Plaintiff could perform
19 certain activities in mid-2020, she could perform them in April 2019, too. The
20 ALJ erred in concluding that Plaintiff’s reported daily activities conflict with
21 her claim to a period of disability lasting 12 months or longer.
22 Third, the ALJ also failed to explain how Plaintiff’s reported daily
23 activities could transfer to a work setting. (Id. at 22). Absent any specific
24 contradiction between a claimant’s daily activities and the claimant’s
25 statements, the ALJ may use those activities to discredit the claimant’s
26 symptom testimony only upon findings that the activities “involv[e] the
1 Orn, 495 F.3d at 639 (internal marks and citation omitted). But the omission
2 to tie daily activities to the ability to work is particularly glaring here, where
3 Plaintiff testified that she needed to lie down for several hours after sitting or
4 standing for about 45 minutes. (Id. at 60–62; see also id. at 252 (“I can’t be
5 standing or sitting down for a long time, I have to be laying down. . . If I can
6 get a job laying down I could work.”).
7 Plaintiff’s testimony regarding her daily activities does not amount to a
8 specific, clear and convincing reason to discredit her other testimony for three
9 reasons. First, the decision failed to identify specific statements that the
10 testimony contradicted. Second, the decision misinterpreted and drew
11 improper conclusions from that testimony. And third, the ALJ omitted to
12 explain how her reported daily activities related to her ability to work.
13 d. The ALJ’s Errors in Setting Aside Plaintiff’s Symptom Testimony
14 Are Not Harmless
15 The Court must next consider whether the ALJ’s error in failing to
16 identify any specific, clear and convincing reason to discredit Plaintiff’s
17 testimony was harmless. “An error is harmless only if it is inconsequential to
18 the ultimate nondisability determination, or if despite the legal error, the
19 agency’s path may reasonably be discerned.” Brown-Hunter, 806 F.3d at 494
20 (citations and internal quotation marks omitted). The Ninth Circuit finds
21 errors based on failure to provide “specific, clear, and convincing reasons” for
22 rejecting Plaintiff’s subjective symptom testimony not harmless “because
23 [they] preclude [courts] from conducting a meaningful review of the ALJ’s
24 reasoning.” Id. at 489, 494–95; Lambert, 980 F.3d at 1278; Treichler v.
25 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). Here, the
26 ALJ’s errors in failing to provide specific, clear and convincing reasons for
1 ALJ’s reasoning, so they were not harmless.
2 2. The ALJ Improperly Set Aside Dr. Sivtsov’s Opinion in
3 Considering Plaintiff’s Mental Impairments
4 The ALJ also erred in considering Plaintiff’s mental health
5 impairments. In support of her claim to such impairments, Plaintiff
6 submitted the opinion of Dr. Dmitry Sivtsov, (see AR at 275–334), along with
7 her mental health treatment records. (See, e.g., id. at 87–91, 106–08, 237–49,
8 360, 365–66, 426–27, 530–32, 754–56, 797–802, 807–12, 823–24). Dr. Sivtsov
9 concluded that Plaintiff demonstrated “mild to moderate impairment” in
10 activities of daily living, “mild impairment” in social functioning and
11 concentration, and “moderate impairment” in adaptation. (Id. at 328).
12 The ALJ erroneously deemed this opinion “unpersuasive.” (AR at 23).
13 When evaluating the persuasiveness of a medical opinion, the agency must
14 consider several factors, giving the greatest weight to two: 1) how well the
15 opinion is supported by objective medical evidence and supporting
16 explanations; and 2) how consistent the opinion is with evidence from other
17 sources. 20 C.F.R. § 404.1520c(c) (identifying five factors for consideration);
18 20 C.F.R. § 404.1520c(b)(2) (placing greatest weight on supportability and
19 consistency). Under 20 C.F.R. § 404.1520c, “an ALJ cannot reject an
20 examining or treating doctor’s opinion as unsupported or inconsistent
21 without providing an explanation supported by substantial evidence.” Woods
22 v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
23 The ALJ applied this standard here, finding that both dominant
24 factors—supportability and consistency—supported the conclusion that Dr.
25 Sivtsov’s opinion was not persuasive. (AR at 23). This finding was erroneous
26 as to both factors: the ALJ failed to identify substantial evidence that the
1 a. The ALJ Erroneously Deemed Dr. Sivtsov’s Opinion Unsupported
2 The ALJ determined that Dr. Sivtsov’s opinion was not well-supported
3 because it “appear[ed] to rely more on the claimant’s subjective reports rather
4 than objective findings,” in part because “Dr. Siv[t]sov considered test results
5 from his mental status exam of the claimant to be invalid.” (AR at 23). In
6 general, an ALJ may disregard a physician’s opinion of disability where:
7 1) the ALJ “properly discount[s]” the claimant’s “accounts of [her] symptoms
8 and limitations;” and 2) the physician’s opinion is “premised to a large extent”
9 on those accounts. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602
10 (9th Cir. 1999). The ALJ failed to satisfy either prong of this test.
11 First, as discussed above, the ALJ did not properly discount Plaintiff’s
12 symptom testimony because he failed to give specific, clear and convincing
13 reasons why that testimony was not credible.
14 Second, even had the ALJ properly discounted that testimony, the rule
15 permitting an ALJ to reject a physician’s opinion that is based on self-reports
16 “does not apply in the same manner to opinions regarding mental illness.”
17 Buck, 869 F.3d at 1049. Psychiatric diagnoses “will always depend in part on
18 the patient’s self-report, as well as on the clinician’s observations of the
19 patient." Id. Accordingly, “[c]linical interview[s] and . . . mental status
20 evaluation[s] . . . are objective measures and cannot be discounted as a ‘self-
21 report.’” Id. Here, Dr. Sivtsov’s opinion relates to Plaintiff’s psychiatric
22 impairments. And while Dr. Sivtsov set aside Plaintiff’s results from the
23 psychometric assessment instruments he administered due to a “very high
24 likelihood of random responding,”4 (AR at 283–84, 326–27), that did not mean
25
26
4 Dr. Sivtsov’s report emphasizes that “random responding,” without more,
1 that Dr. Sivtsov’s conclusions lacked any supporting evidence. Those
2 conclusions relied on a clinical interview of the Plaintiff, (see id. at 275
3 (stating that evaluation included “comprehensive face-to-face interview”)),
4 and a review of Plaintiff’s medical records. (Id. at 276, 288–312). The clinical
5 interview and review of medical records constitute objective evidence on
6 which Dr. Sivtsov could—and did—base his findings. See Buck, 869 F.3d at
7 1049 (“[A] clinical interview and a mental status evaluation . . . are objective
8 measures”); (AR at 324–26 (relying on clinical interview and medical records
9 in reaching diagnosis of Plaintiff)). The ALJ erred in finding that Dr.
10 Sivtsov’s opinion was not well-supported because it “rel[ies] more on the
11 claimant’s subjective reports rather than objective findings.” (AR at 23).
12 b. The ALJ Erroneously Deemed Dr. Sivtsov’s Opinion Inconsistent
13 The ALJ’s determination that Dr. Sivtsov’s opinion was inconsistent
14 with the objective medical evidence and other evidence also lacks support
15 from substantial evidence. Specifically, the ALJ characterized the other
16 evidence as indicating:
17 “[T]he claimant’s mental symptoms have been exacerbated by life
stressors, but her symptoms have generally improved and
18
stabilized with counseling and taking her medication as
19 prescribed. She has not been hospitalized for a mental impairment
during the relevant period. In addition, her reported daily
20
activities suggest a greater level of functioning than alleged. For
21 example, she can drive, she can shop for groceries, she can prepare
her own meals, she takes her daughter to school, she can do
22
household chores, and she has no problem with her personal care.”
23 (Id. at 23–24).
24 These findings do not establish that Dr. Sivtsov’s opinion is inconsistent
25 with the other evidence in the record. They do not address the same subject
26 matter as many of Dr. Sivtsov’s conclusions—namely, his findings that
1 adaptation. (Id. at 328). But even where the ALJ’s reasons map to Dr.
2 Sivtsov’s opinion, those reasons are consistent.
3 First, Dr. Sivtsov’s opinion acknowledged and accounted for the
4 “improve[ment] and stabiliz[ation] in Plaintiff’s symptoms with counseling
5 and taking her medication as prescribed.” (AR at 24). Although he described
6 Plaintiff as “highly symptomatic with depressive and anxiety symptoms”
7 when unmedicated, (AR at 326), he noted that she had ceased taking
8 medications due to unwanted side effects and so ultimately deemed her
9 “depressed mood” “mild.” (Id. at 329). This characterization is consistent
10 with medical records indicating that, when taking her medication, Plaintiff’s
11 depressive symptoms were “[m]oderate.” (Id. at 247, 803, 807, 811).
12 Next, there is no apparent inconsistency between Dr. Sivtsov’s opinion
13 and the ALJ’s observation that Plaintiff “has not been hospitalized for a
14 mental impairment during the relevant period.” (AR at 24). Dr. Sivtsov
15 neither claimed to the contrary nor opined that any hospitalization was
16 necessary. (See AR at 275–334).
17 Nor is there any meaningful inconsistency between Plaintiff’s reported
18 daily activities and Dr. Sivtsov’s description of her impairment, either. In
19 support of his “mild to moderate impairment” assessment in this category,
20 Dr. Sivtsov explained in March 2019 that: 1) “[Plaintiff] reports that she has
21 stopped cooking due to lack of motivation”; 2) “She does minimal shopping, as
22 she is bothered by crowds”; 3) “She . . . is only able to do minimal
23 housekeeping”; 4) “She can occasionally drive for up to fifteen minutes, but
24 the freeway makes her anxious”; and 5) “She will nap during the day.” (AR
25 at 327–28). As discussed above, Plaintiff testified that she began cooking and
26 grocery shopping around June 2020, and that, in July 2020, she was unable
1 after short periods of standing or sitting. (Id. at 60–62). These statements
2 are consistent with Dr. Sivtsov’s opinion that Plaintiff suffered from “mild to
3 moderate” impairment in her activities of daily living. (AR at 328).
4 The ALJ’s stated reasons for finding Dr. Sivtsov’s opinion inconsistent
5 with the other evidence are incomplete, in that they do not address all of Dr.
6 Sivtsov’s relevant findings, and they are not supported by substantial
7 evidence. The AL erred in finding that opinion inconsistent with the other
8 evidence in the record.
9 c. The ALJ’s Error Was Not Harmless
10 “An error is harmless only if it is inconsequential to the ultimate
11 nondisability determination, or if despite the legal error, the agency’s path
12 may reasonably be discerned.” Brown-Hunter, 806 F.3d at 494 (citations and
13 internal quotation marks omitted). Here, the ALJ erred in evaluating each of
14 the two most important factors for determining the persuasiveness of a
15 medical opinion. The Court cannot find these errors inconsequential, nor can
16 the Court predict how the agency would proceed if the errors were corrected.
17 Those errors were not harmless.
18 3. The ALJ Erred in Finding Plaintiff’s Impairments Non-Severe
19 Plaintiff also contends that the ALJ erred in finding her impairments
20 non-severe. An impairment or combination of impairments may be
21 considered “non-severe” only if it causes no more than a “slight abnormality”
22 that has “no more than a minimal effect” on the claimant’s ability to do basic
23 work activities. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). A
24 finding of non-severity must be supported by substantial evidence “clearly
25 establish[ing] that [the claimant] did not have a medically severe impairment
26 or combination of impairments.” Id. at 687. The substantial evidence
1 || weighing both the evidence that supports and the evidence that detracts from
2 ||the Commissioner’s [ultimate] conclusion.” Garrison, 759 F.3d at 1009.
3 Here, the ALJ’s errors discussed above—discrediting Plaintiffs
4 ||testimony and Dr. Sivtsov’s opinion—were not harmless. In setting that
5 ||evidence aside improperly, the ALJ failed to consider the record as a whole,
6 ||and so his conclusion of non-severity rests on a faulty foundation. See
7 Garrison, 759 at 1009 (substantial evidence standard requires ALJ to
g ||consider “entire record as a whole’). The ALJ erred in finding Plaintiffs
9 ||impairments non-severe based on an incomplete record.
10 This error was not harmless. “An error is harmless only if it is
11 ||inconsequential to the ultimate nondisability determination, or if despite the
12 ||legal error, the agency’s path may reasonably be discerned.” Brown-Hunter,
13 F.3d at 494 (citations and internal quotation marks omitted). Here, the
14 ||}erroneous finding ended the ALJ’s inquiry, and so it was not inconsequential
15 ||to the ultimate determination, and the Court cannot predict how the ALJ
16 || would have resolved the claim in the absence of error.
17 CONCLUSION
18 For the reasons discussed above, the Commissioner’s decision denying
19 || Plaintiffs SSDI benefit application is VACATED. The case is REMANDED
90 ||for further proceedings consistent with this opinion.
21 IT IS SO ORDERED.
Dated: November 30, 2022 tl | [
Hon. Mitchell D. Dembin
24 United States Magistrate Judge
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