Moore v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRANDY M.,1

Plaintiff, Civ. No. 6:18-cv-01139-CL

v. OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_______________________________________

MARK D. CLARKE, Magistrate Judge.

Plaintiff Brandy M. seeks judicial review of the final decision of the Commissioner of the

Social Security Administration denying her claim for supplemental security income (SSI). For

the reasons below, the Commissioner’s decision is REVERSED and REMANDED for

immediate calculation of benefits.

BACKGROUND2

Born November 11, 1976, Plaintiff was thirty-seven years old on the application date. Tr.

23. She has a tenth-grade education. Tr. 224. She has no past relevant work experience. Tr. 23

On July 29, 2014, Plaintiff applied for Supplemental Security Income, alleging disability

beginning January 1, 2005. Tr. 206-11.1 The agency denied the claim both initially and upon

reconsideration, and Plaintiff requested a hearing. Tr. 149-56, 161-66. She appeared for a hearing

1In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name

of the non-governmental party or parties, and any relations, in this case.

2 The following recitation constitutes a summary of the pertinent evidence within the Administrative

Record and does not reflect any independent finding of fact by the Court. Citations to “Tr.” refer to the

page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 11.

before the ALJ in May, 2017. Tr. 66-102. On September 19, 2017, the ALJ issued a decision

denying Plaintiff’s claim for benefits. Tr. 12-30 Plaintiff requested review of the hearing

decision, which the Appeals Council denied in April 2018. Tr. 204-05, 1-6. Accordingly, the

ALJ’s decision became the final decision of the agency, from which Plaintiff seeks review.

DISABILITY ANALYSIS

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks

the following series of questions:

1. Is the claimant performing “substantial gainful activity”? 20 C.F.R.

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving

significant mental or physical duties done or intended to be done for pay or

profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such

work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless

expected to result in death, an impairment is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or

must be expected to last for a continuous period of at least 12 months. 20

C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis

proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then

the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis proceeds to the “residual functional

capacity” (“RFC”) assessment.

a. The ALJ must evaluate medical and other relevant evidence to assess

and determine the claimant’s RFC. This is an assessment of work-

related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the

analysis proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his

or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is not

disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);

416.960(c). If the claimant cannot perform such work, he or she is disabled.

Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 954. The

Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.

1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work

which exists in the national economy”). If the Commissioner fails to meet this burden, the

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the

Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;

Tackett, 180 F.3d at 1099.

THE ALJ’S FINDINGS

Applying the above analysis, the ALJ made the following findings:

1. Plaintiff has not engaged in substantial gainful activity since July 29, 2014, the

application date.

2. Plaintiff has the following severe impairments: degenerative disc disease of the

cervical spine; degenerative joint disease of the left ankle and left knee, status post

multiple ankle surgeries and hardware placement; affective disorder; anxiety disorder;

and substance addiction disorder.

3. Plaintiff does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments.

4. Plaintiff has the residual functional capacity to perform a range of light work as

defined in 20 CFR 416.967(b) except she can occasionally lift/carry up to 25 pounds,

and up to 20 pounds frequently. She can stand/walk up to 6 hours, and sit for up to 6

hours in an 8-hour workday (with normal breaks). She requires the option to alternate

between sitting and standing at will while remaining on task. She must avoid

climbing ladders, ropes, or scaffolds. She is limited to simple, routine tasks involving

a reasoning level of 2 or less. She can tolerate no more than occasional contact with

coworkers and the general public.

5. Plaintiff has no past relevant work.

6. Plaintiff was born on November 11, 1976 and was 37 years old, which is defined as a

younger individual age 18-49, on the date the application was filed.

7. Plaintiff has a limited education and is able to communicate in English.

8. Transferability of job skills is not an issue because Plaintiff has no past relevant work.

9. Considering Plaintiff’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that

the Plaintiff can perform.

Consequently, the ALJ concluded that Plaintiff is not disabled as defined by the Social

Security Act. Tr. 24.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the legal findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘“Substantial evidence’ means

‘more than a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Bray v.

Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53

F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this Court

must weigh “both the evidence that supports and detracts from the [Commissioner’s]

conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations

of the evidence are insignificant if the Commissioner’s interpretation is rational. Burch v.

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Where the evidence before the ALJ is subject to more than one rational interpretation, the

Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d

at 1041). “However, a reviewing court must consider the entire record as a whole and may not

affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a

reviewing court “cannot affirm the [Commissioner’s] decision on a ground that the

[Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454

F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ’s

decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that

an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki

v. Sanders, 556 U.S. 396, 409 (2009).

Even where findings are supported by substantial evidence, “the decision should be set

aside if the proper legal standards were not applied in weighing the evidence and making the

decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42

U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript

record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or

without remanding the case for a rehearing.

DISCUSSION

Plaintiff presents the following issues:

1. Did the ALJ properly evaluate the opinions of Plaintiff’s medical sources?

2. Did the ALJ properly evaluate Plaintiff’s subjective symptom testimony?

3. Did the ALJ properly formulate the RFC?

The Court finds that the ALJ erred by improperly rejecting the medical opinion evidence,

and, as a result, failing to properly formulate the RFC to include all of Plaintiff’s social and

mental limitations. Plaintiff’s counsel posed the proper hypothetical to the vocational expert,

eliminating the need for remand for further proceedings. Because these errors require remand for

benefits, it is not necessary for the Court to consider Plaintiff’s other claims of error by the ALJ,

including claims that the ALJ failed to properly evaluate medical evidence and subjective

symptom testimony regarding Plaintiff’s physical limitations.

I. The ALJ failed to properly credit the medical opinion evidence in the record.

In social security cases, there are three categories of medical opinions: those that come

from treating, examining, and non-examining doctors. Holohan v. Massanari, 246 F.3d 1195,

1201 (9th Cir. 2008). “Generally, a treating physician’s opinion carries more weight than an

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

reviewing physician’s.” Id. at 1202.; Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014).

Thus, even if contradicted by another doctor’s opinion, the treating or examining doctor is

nevertheless “entitled to deference” and may be rejected only with specific and legitimate

reasons supported by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 631, 633

(9th Cir. 2007); Ghanim, 763 F.3d at 1160–61; accord Roberts v. Shalala, 66 F.3d 179, 184 (9th

Cir. 1995). Opinions supported by explanations are given more authority than those that are not,

as are opinions of specialists directly relating to their specialties. Holohan, 246 F.3d. at 1202.

However, an ALJ considers all relevant medical evidence and is responsible for resolving its

conflicts. 20 C.F.R. §§ 404.1527, 416.927; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

1155, 1164 (9th Cir. 2008).

a. The ALJ failed to properly evaluate the opinion of Dr. Lake.

Consultative psychologist, Claudia Lake, Psy.D., performed a consultative psychological

examination in May 2015. Tr. 443. She based her opinion on a review of available medical

records, clinical interview, and mental status examination. Tr. 443-45. Plaintiff reported a history

of domestic violence, multiple sexual assaults, posttraumatic stress disorder, and panic attacks.

Tr. 443-44. She reported growing up in an abusive environment and dropping out of school after

the ninth grade. Tr. 445. She last worked in 2001 and stated that her disabilities “got in the way

of her continuing to work.” Tr. 445. She endorsed occasional cannabis use; she had been sober

from alcohol and methamphetamines for five years. Tr. 445. She attended church and was able to

dress and bathe herself. Tr. 445. Her hobbies included crossword puzzles and gardening when

able. Tr. 445.

Dr. Lake noted that Plaintiff’s presentation of her history was often scattered, confusing,

and dramatic. Tr. 444. She went on a mildly disorganized tangent about her history of abuse. Tr.

445. She appeared much older than her stated age. Tr. 445-46. She nervously held her hands in

her lap, had a quiver when breathing, and appeared quite nervous. Tr. 446. Dr. Lake noted mildly

tangential thought process and believed Plaintiff’s reported auditory and visual hallucinations

may be related to medication withdrawal. Tr. 446. Plaintiff reported that her mood was filled

with fear, anxiety, panic, stress, and a belief that people were staring at her. Tr. 446. Dr. Lake

observed that Plaintiff’s affect was congruent with her reported mood. Tr. 446. Her immediate

memory and recall appeared mildly impaired. Tr. 446. She was aware of current events but did

not present them clearly. Tr. 446.

Dr. Lake diagnosed posttraumatic stress disorder, unspecified depressive disorder,

agoraphobia, alcohol use disorder in sustained remission, stimulant use disorder in sustained

remission, and borderline personality disorder. Tr. 447. She opined that Plaintiff’s medical issues

exacerbated her mental health symptoms, and that ongoing daily stress kept her “destabilized.”

Tr. 447. She further opined that Plaintiff’s prognosis was poor, and that she would have

difficulty with even simple tasks due to anxiety and depression symptoms. Tr. 447-48. Plaintiff

would also have difficulty accepting instructions from supervisors, interacting with coworkers

and the public, performing work activities on a consistent basis without special or additional

instructions, maintaining regular attendance in the workplace, completing a normal workday or

workweek without interruptions from a psychiatric condition, and dealing with additional stress

encountered in the workplace. Tr. 448.

The ALJ discounted this examining medical source opinion in favor of the opinion of a

non-examining state agency consultant, Dr. Dennis. Michael Dennis, Ph.D., reviewed the

medical record and assessed “moderate limitation” in Plaintiff’s ability to understand, remember,

and carry out detailed instructions; maintain attention and concentration for extended periods;

perform activities within a schedule, maintain regular attendance, and be punctual within

customary tolerances; complete a normal workday and workweek without interruptions from

psychologically-based symptoms and perform a consistent pace without an unreasonable number

and length of rest periods; interact appropriately with the general public; accept instructions and

respond appropriately to criticism from supervisors; get along with coworkers or peers without

distracting them or exhibiting behavioral extremes; and respond appropriately to changes in the

work setting. Tr. 142-43.

“In reconciling [Dr. Lake and Dr. Dennis’s] disagreement, the [ALJ] note[d] that more

recent evidence obtained at the hearing level indicat[ed] the claimant exhibited significant

intellectual and social functioning within a clinical setting.” Tr. 22. The ALJ then specifically

noted a single mental health treatment note from September 2015, which documented cognitive

function within normal limits and a “neat, clean, pleasant, accessible, and fully oriented”

presentation with “effective” reasoning and “good” attention and concentration. Tr. 22 (citing Tr.

455). The ALJ found that those “clinical findings” tended to support Dr. Dennis’ opinion that the

claimant could reasonably sustain simple tasks involving limited social interaction. Tr. 22. That

reasoning is problematic, however, because it disregards Dr. Lake’s own examination findings,

upon which she based her opinion, in favor of a one-time behavioral screening assessment from a

non-acceptable medical source3. That evidence cannot constitute substantial evidence

inconsistent with Dr. Lake’s observations of scattered, confusing, nervous, and dramatic

presentation; mildly tangential thought process; fearful, anxious, panicked, and stressed mood

with congruent affect; and mildly impaired immediate memory and recall. Tr. 444-46. Indeed,

the record documents numerous clinical findings consistent with Dr. Lake’s opinion, including

pressured speech, depressed mood, anxious affect, impaired memory, and tearfulness. E.g., Tr.

453, 452, 502, 511, 514. Thus, the ALJ improperly relied on a single medical record to reject Dr.

Lake’s informed opinion.

Additionally, even Ms. DeVilliers, QHMP, Plaintiff’s treating therapist, who purportedly

wrote the single contradicting mental health treatment note from September 2015, reported in

early 2016 “that the claimant would likely have marked difficulty maintaining attention and

concentration, maintaining regular attendance, or completing a normal workday and workweek

without interruptions form psychologically based symptoms.” Tr. 22. This opinion is discussed

further below.

Finally, the ALJ identified no basis to reject Dr. Lake’s opinion that Plaintiff would have

difficulty accepting instructions from supervisors, see tr. 448, which is in fact consistent with Dr.

Dennis’s opinion that Plaintiff was “moderately limited” in her ability to accept instructions and

respond appropriately to criticism from supervisors. Tr. 143. As discussed below, Dr. Lake’s

opinion supports a finding of disability; based on vocational expert testimony, this was a harmful

error requiring remand for benefits.

b. The ALJ failed to properly evaluate the opinion of treating therapist Dianne

Devilliers, QMHP.

3 The ALJ incorrected attributed this note to Dianne DeVilliers, Plaintiff’s treating mental health provider,

but the note in question was actually signed by Cindy Simmons. It does not appear that Ms. Simmons

regularly treated Plaintiff.

“In addition to considering the medical opinions of doctors, an ALJ must consider the

opinions of medical providers who are not within the definition of ‘acceptable medical sources.’”

Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017); see 20 C.F.R. § 416.902(a), (d). While not

entitled to the same deference as “acceptable” medical sources, statements from “other” medical

sources relevant to a claimant’s symptoms or how an impairment affects her ability to work is

competent evidence that cannot be disregarded without comment. Tobeler v. Colvin, 749 F.3d

830, 833-34 (9th Cir. 2014).

The same factors used to evaluate the opinions of medical providers

who are acceptable medical sources are used to evaluate the

opinions of those who are not. [20 C.F.R. § 416.927(f)]; SSR 06-3P.

Those factors include the length of the treatment relationship and

the frequency of examination, the nature and extent of the treatment

relationship, supportability, consistency with the record, and

specialization of the doctor. Id. § [416.927(c)(2)–(6)].

Revels, 874 F.3d at 655. “Depending on the particular facts in a case, and after applying the

factors for weighing opinion evidence, an opinion from a medical source who is not an

acceptable medical source or from a nonmedical source may outweigh the medical opinion of an

acceptable medical source, including the medical opinion of a treating source.” 20 C.F.R. §

416.927(f)(1). As such, to reject the “other” medical source statement, the ALJ must identify

germane reasons supported by substantial evidence in the record. Molina v. Astrue, 674 F.3d

1104, 1111 (9th Cir. 2012).

Dianne DeVilliers, QMHP, treated Plaintiff in weekly therapy sessions, although Plaintiff

had cancelled four or five appointments in the prior four months. Tr. 458, 457. Plaintiff’s

diagnoses included posttraumatic stress disorder and borderline personality disorder. Tr. 462.

Her signs and symptoms included fear of going out without her spouse, emotional lability,

worry, fear of men, guilt, sense of hopelessness, insomnia, and poor self-esteem. Tr. 458. She

was emotionally reactive and defensive with perceived criticism. Tr. 458. Ms. DeVilliers opined

that Plaintiff was markedly limited in the ability to maintain attention and concentration for

extended periods; perform activities within a schedule, maintain regular attendance, and be

punctual within customary tolerances; and complete a normal workday and workweek without

interruptions from psychologically-based symptoms and perform at a consistent pace without an

unreasonable number and length of rest periods. Tr. 460-62. She also opined that Plaintiff was

moderately limited in the ability to respond appropriately to changes in a work setting. Tr. 462.

The ALJ afforded Ms. DeVilliers’ opinion “partial weight,” reasoning that “it appear[ed]

to rely uncritically on the claimant’s subjective complaints of acute psychosocial stressors –

rather than the treatment provider’s own clinical findings cited above.” Tr. 23. Here, the ALJ

referenced the basis for rejecting Dr. Lake’s opinion—that is, the September 2015 behavioral

health assessment signed by Cindy Simmons, not Ms. DeVilliers. Tr. 22, 455. Contrary to the

ALJ’s finding, Ms. DeVilliers’ treatment notes document clinical findings of pressured speech,

depressed mood, anxious affect, impaired memory, and tearfulness. E.g., Tr. 453, 452, 502, 511,

514. Furthermore, there is no evidence to support the conclusory finding that Ms. DeVilliers

relied “uncritically” on Plaintiff’s own subjective reports. Ms. DeVilliers in fact indicated that

there were several areas that she felt unable to determine the severity of Plaintiff’s functional

limitations. Tr. 460-63. The ALJ therefore erred in rejecting Ms. DeVilliers’ “other” medical

source opinion without reasons that are germane and supported by substantial evidence. When

properly credited, Ms. DeVilliers' opinion is consistent with Dr. Lake’s opinion, and it supports a

finding that the severity of Plaintiff’s mental limitations precludes her from sustaining in a full-

time, competitive work setting.

c. The ALJ failed to properly evaluate the opinion of Dr. Nolan.

Consultative physician, Raymond Nolan, M.D., performed a physical examination in

April 2015. Tr. 427. The ALJ discounted Dr. Nolan’s opined restrictions in favor of the less-

restrictive opinion of non-examining state agency consultant, Roy Brown, MD. Tr. 21-22. The

ALJ reasoned that the less-restrictive assessment reasonably accounted for Dr. Nolan’s own

findings, but the ALJ did not explain how those findings constitute either a legitimate basis to

reject Dr. Nolan’s medical opinion, nor substantial evidence inconsistent with that opinion.

However, because other errors regarding Plaintiff’s mental and social limitations require remand

for payment of benefits, the Court does not need to explore the extent of this error in-depth, nor

should this case be remanded for further proceedings to determine the extent of Plaintiff’s

physical limitations.

II. The ALJ failed to properly account for Plaintiff’s mental and

social limitations in the RFC, and therefore posed an incomplete

hypothetical to the vocational expert.

If the claimant proves that she is unable to perform any past relevant work, or if she has

no past relevant work, as in this case, the burden shifts to the Commissioner to prove that the

claimant is capable of working an eight-hour day at some alternate job within her RFC.

Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989). To meet the Commissioner’s burden, the

ALJ may elicit testimony from a vocational expert (“VE”), but the hypothetical posed to the VE

must account for all of the claimant’s limitations supported by the record. Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 886 (9th Cir. 2005). Similarly, the ALJ is required to include all

restrictions in the residual functional capacity determination. See 20 C.F.R. § 416.945. In this

case, the Commissioner cannot meet its burden at step five of the sequential analysis because the

ALJ posed a defective hypothetical to the VE and assessed an RFC that exceeds “the concrete

limitations in the medical opinions.” Rogers v. Comm'r of Soc. Sec. Admin., 490 Fed. Appx. 15,

17–18 (9th Cir. 2012).

As discussed, the ALJ identified no basis to reject Dr. Lake and Dr. Dennis’s opinions

that Plaintiff was limited in her ability to accept instructions and respond appropriately to

criticism from supervisors. Tr. 143, 448. The ALJ did not address this portion of either opinion.

See Tr. 22. The ALJ then failed to account for any limitation in Plaintiff’s ability to respond

appropriately to supervision in the hypothetical posed to the VE and residual functional capacity

finding. See Tr. 93-94, 20. As a result, the Commissioner cannot meet its burden at step five of

the sequential analysis, as the RFC finding exceeds “the concrete limitations in the medical

opinions.” Rogers, 490 Fed. Appx. at 17-18. That error is not harmless: as the VE testified, there

is a very low tolerance for workers to be off-task due to panic symptoms in response to criticism

from supervisors —even just 2% of the workday precludes employment. Tr. 100. While the

Commissioner attempts to argue that the “moderate” limitation assessment by Dr. Dennis does

not require inclusion in the RFC, it is clear from the VE testimony that even a mild limitation in

this area would prevent competitive employment. This was harmful error requiring remand.

III. This case is remanded for immediate payment of benefits.

The Social Security Act empowers courts to affirm, modify, or reverse a decision by the

Commissioner “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A

court may exercise its discretion to reverse and remand a case for an award of benefits, rather

than for further proceedings, where (1) the record has been fully developed and further

administrative proceedings would serve no useful purpose, (2) the ALJ failed to provide legally

sufficient reasons for rejecting medical or testimonial evidence, and (3) if the improperly

discredited evidence were credited as true, the ALJ would be required to find the claimant

disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020-23 (9th Cir. 2014).

The discretionary nature of the credit-as-true rule “allows flexibility to remand for further

proceedings when[, although all three conditions of the rule have been met,] the record as a

whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of

the Social Security Act.” Id. at 1021. Such flexibility “aligns the credit-as-true rule, which

preserves efficiency and fairness in a process that can sometimes take years before benefits are

awarded to needy claimants, with the basic requirement that a claimant be disabled in order to

receive benefits.” Id.; see Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the

Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play

again’ system of disability benefits adjudication.”).

As discussed above, the ALJ erred by improperly rejecting the medical evidence,

including the opinions of Dr. Lake and Dr. Dennis, as well as treating mental health care

provider Ms. DeVilliers. These opinions are consistent with each other, and with the record as a

whole; they should be credited as true. In particular, Plaintiff’s social limitations regarding her

ability to accept instructions and respond appropriately to criticism from supervisors are well

documented. When a hypothetical containing these limitations was posed to the vocational

expert, he confirmed that even a small limitation in this area would preclude employment:

Q: If this hypothetical individual… would occasionally have

to leave the situation due to panic symptoms in response to…

criticism from supervisors they would occasionally have to remove

themselves from the situation, would that give you more information

that might be helpful?

A: I can tell you this, you know, occasional is a range from

1 to 33 percent, but I think given the -- what I consider the

vocationally dire circumstances that you describe, even a couple --

even a couple percentages -- percentage of the time if that behavior

exhibited itself, I think that would be really inappropriate and

unacceptable in competitive work.

Tr. 100. Based on this response, there is no need to remand this case for further development of

the record. Plaintiff’s limitations preclude her from competitive employment. The case is

reversed and remanded for immediate payment of benefits.

Plaintiff raises other issues and errors by the ALJ, however, based on the above

assessment, the Court need not consider whether there are alternative reasons to remand the case.

ORDER

Based on the foregoing, the decision of the Commissioner is REVERSED and

REMANDED for immediate calculation of benefits.

It is so ORDERED and DATED this 30th day of June, 2020.

/s/ Mark D. Clarke

MARK D. CLARKE

United States Magistrate Judge