Valdez v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

FANCY M. V.,1 6:20-cv-00252-BR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

KATHERINE L. EITENMILLER

MARK A. MANNING

Harder, Wells, Baron & Manning, P.C.

474 Willamette St.

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case. Where applicable, this Court uses the same

designation for the nongovernmental party's immediate family

member.

1 - OPINION AND ORDER

MICHAEL W. PILE

Acting Regional Chief Counsel

MARTHA A. BODEN

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-3710

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Fancy M. V. seeks judicial review of the final

decision of the Commissioner of the Social Security

Administration (SSA) in which the Commissioner denied

Plaintiff's application for Supplemental Security Income (SSI)

under Title XVI of the Social Security Act. This Court has

jurisdiction to review the Commissioner's final decision

pursuant to 42 U.S.C. § 405(g).

For the reasons that follow, the Court REVERSES the

decision of the Commissioner and REMANDS this matter for the

immediate calculation and payment of benefits.

ADMINISTRATIVE HISTORY

On August 2, 2018, Plaintiff protectively filed her

2 - OPINION AND ORDER

application for SSI benefits. Tr. 13, 233, 235.2 Plaintiff

alleges a disability onset date of April 24, 2012. Tr. 13, 235.

Plaintiff=s application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on September 17, 2019. Tr. 13, 29-53. Plaintiff and a

vocational expert (VE) testified at the hearing. Plaintiff was

represented by an attorney at the hearing.

On October 17, 2019, the ALJ issued an opinion in which she

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 13-23. Plaintiff requested review by the

Appeals Council. On January 2, 2020, the Appeals Council denied

Plaintiff's request to review the ALJ's decision, and the ALJ's

decision became the final decision of the Commissioner. Tr. 1-

3. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On February 14, 2020, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner's decision.

BACKGROUND

Plaintiff was born on March 10, 1971. Tr. 21, 235.

2 Citations to the official Transcript of Record (#12)

filed by the Commissioner on August 31, 2020, are referred to as

"Tr."

3 - OPINION AND ORDER

Plaintiff was 47 years old on her application date. Tr. 21.

Plaintiff has at least a high-school education. Tr. 21.

Plaintiff has past relevant work experience as a stock clerk,

deli-cutter/slicer, and child monitor. Tr. 21.

Plaintiff alleges disability due to Post-Traumatic Stress

Disorder (PTSD), anxiety, major depressive disorder, and

migraines. Tr. 145.

Except as noted, Plaintiff does not challenge the ALJ's

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the

medical evidence. See Tr. 16-21.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110

(9th Cir. 2012). To meet this burden a claimant must

demonstrate her inability "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). The ALJ must develop the record when

there is ambiguous evidence or when the record is inadequate to

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allow for proper evaluation of the evidence. McLeod v. Astrue,

640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,

276 F.3d 453, 459B60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

"relevant evidence that a reasonable mind might accept as

adequate to support a conclusion." Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing

Valentine, 574 F.3d at 690).

The ALJ is responsible for evaluating a claimant's

testimony, resolving conflicts in the medical evidence, and

resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591

(9th Cir. 2009). The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's

decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th

Cir. 2008). Even when the evidence is susceptible to more than

one rational interpretation, the court must uphold the

5 - OPINION AND ORDER

Commissioner=s findings if they are supported by inferences

reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d

1047, 1051 (9th Cir. 2012). The court may not substitute its

judgment for that of the Commissioner. Widmark v. Barnhart, 454

F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the

Commissioner determines the claimant is engaged in substantial

gainful activity (SGA). 20 C.F.R. § 416.920(a)(4)(i). See also

Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.

2011).

At Step Two the claimant is not disabled if the

Commissioner determines the claimant does not have any medically

severe impairment or combination of impairments. 20 C.F.R.

§ 416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant's impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R.

§ 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

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criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments).

If the Commissioner proceeds beyond Step Three, he must

assess the claimant's residual functional capacity (RFC). The

claimant's RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec.

Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v.

Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also

7 - OPINION AND ORDER

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony

of a VE or by reference to the Medical-Vocational Guidelines (or

the grids) set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden,

the claimant is not disabled. 20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since August 2, 2018, Plaintiff's

application date. Tr. 15.

At Step Two the ALJ found Plaintiff has the severe

impairments of major depressive disorder, a general anxiety

disorder, and PTSD. Tr. 15.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P,

appendix 1. Tr. 16. The ALJ found Plaintiff has the RFC to

perform a full range of work at all exertional levels with the

8 - OPINION AND ORDER

following nonexertional limitations: can understand, remember,

and carry out only simple, routine, and repetitive tasks; can

have only occasional contact with coworkers and supervisors; and

cannot have contact with the general public. Tr. 18.

At Step Four the ALJ concluded Plaintiff is unable to

perform her past relevant work. Tr. 21.

At Step Five the ALJ found Plaintiff can perform other jobs

that exist in the national economy such as industrial cleaner,

hand-packager, and laundry laborer. Tr. 22. Accordingly, the

ALJ found Plaintiff is not disabled. Tr. 22.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) failed to

provide legally sufficient reasons for discounting Plaintiff's

subjective symptom testimony and (2) failed to provide legally

sufficient reasons for discounting the medical opinions of Kimel

Limon, Psy.D, an examining psychologist, and Laura Flynn,

L.P.C., Plaintiff's treating therapist.

I. The ALJ erred when she discounted Plaintiff's testimony.

Plaintiff contends the ALJ erred when she failed to provide

clear and convincing reasons for discounting Plaintiff's

testimony.

9 - OPINION AND ORDER

A. Standards

The ALJ engages in a two-step analysis to determine

whether a claimant's testimony regarding subjective pain or

symptoms is credible. "First, the ALJ must determine whether

the claimant has presented objective medical evidence of an

underlying impairment 'which could reasonably be expected to

produce the pain or other symptoms alleged.'" Garrison v.

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter

v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The

claimant need not show his "impairment could reasonably be

expected to cause the severity of the symptom [he] has alleged;

[he] need only show that it could reasonably have caused some

degree of the symptom." Garrison, 759 F.3d at 1014 (quoting

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). A

claimant is not required to produce "objective medical evidence

of the pain or fatigue itself, or the severity thereof." Id.

If the claimant satisfies the first step of this

analysis and there is not any affirmative evidence of

malingering, "the ALJ can reject the claimant's testimony about

the severity of [his] symptoms only by offering specific, clear

and convincing reasons for doing so." Garrison, 759 F.3d at

1014-15. See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,

10 - OPINION AND ORDER

883 (9th Cir. 2006)("[U]nless an ALJ makes a finding of

malingering based on affirmative evidence thereof, he or she may

only find an applicant not credible by making specific findings

as to credibility and stating clear and convincing reasons for

each."). General assertions that the claimant's testimony is

not credible are insufficient. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007). The ALJ must identify "what testimony is

not credible and what evidence undermines the claimant's

complaints." Id. (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)).

B. Analysis

On February 10, 2019, Plaintiff completed an Adult

Function Report. Tr. 270-77. Plaintiff noted her anxiety had

worsened, she becomes "nervous and shaky" when dealing with

people, and she has difficulty breathing. Tr. 270. She stays

home "where [she is] safe," needs reminders to take her

medication, is afraid to go outside and to be around people she

doesn't know, and avoids neighbors and "pretty much everyone."

Tr. 270, 273. She prepares simple meals, washes dishes, and

does laundry. She goes grocery shopping once a month and

attends weekly doctor appointments, but she prefers not to

drive. Tr. 273. Her impairments impact her memory,

11 - OPINION AND ORDER

concentration, and understanding and her ability to complete

tasks, to follow instructions, and to get along with others.

Tr. 275. She is unable to handle stress or changes in routine.

Tr. 276.

At the hearing on September 27, 2019, Plaintiff

testified she stopped working because of back pain, but she was

unable to return to work due to her difficulty being around

other people. Tr. 38. She stated she helps her husband with

the grocery shopping because he is no longer able to do it on

his own, but she has a hard time even shopping with her husband.

Tr. 38. Her mental-health medications are "helpful because [she

doesn't] cry all the time." Tr. 38. She spends her day

cleaning the house, listening to music, or watching television.

Tr. 45. She is depressed most days. Tr. 52.

The ALJ discounted Plaintiff's testimony on the ground

that Plaintiff's allegations "are not consistent with the

medical record." Tr. 20. The ALJ concluded the medical records

do not support the "severity" of Plaintiff's symptoms,

Plaintiff's treatment has been "very conservative," and

Plaintiff's testimony is not supported by her activities of

daily living. Tr. 20. In addition, the ALJ pointed to

Plaintiff's testimony that she stopped working due to her

12 - OPINION AND ORDER

back pain rather than her mental-health impairments. Tr. 20.

Although the ALJ found Plaintiff's medically

determinable impairments could reasonably be expected to cause

her alleged symptoms, the ALJ concluded the medical records do

not support the "severity" of Plaintiff's alleged symptoms.

Tr. 20. Plaintiff, however, is not required to show her

impairment could reasonably cause the severity of her alleged

symptoms. See Smolen v. Chater, 80 F.3d at 1282. As noted,

Plaintiff must only show her impairment could reasonably cause

"some degree" of the symptom, and the ALJ may not reject

Plaintiff's testimony regarding the severity of her symptoms

merely because it is unsupported by objective medical evidence.

Id. See also Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir.

2010)(same). Here the ALJ failed to identify specific evidence

to support her conclusion that the medical record does not

establish the alleged severity of Plaintiff's symptoms.

In addition, the ALJ concluded Plaintiff's treatment

was "very conservative" because it consisted of "largely over-

the-counter medication and prescription medication" and

Plaintiff "has not generally received the type of medical

treatment one would expect for a totally disabled person."

Tr. 20. The ALJ, however, noted Plaintiff's mental-health

13 - OPINION AND ORDER

symptoms were treated with therapy, which the record shows began

as early as August 2016 (Tr. 348), and multiple medications

including Prazosin, Aripiprazole, Trazadone, Cymbalta,

Lorazepam, Fluoxetine, and Ativan. Tr. 20. In November 2017

Plaintiff also began regularly seeing L.P.C. Flynn, her treating

therapist, for depressive disorder, anxiety disorder, and PTSD.

Tr. 472. The ALJ did not provide any explanation for deeming

this treatment to be "conservative". See Revels v. Berryhill,

874 F.3d 648, 667 (9th Cir. 2017)(ALJ erred by failing to

explain why treatment for fibromyalgia was "conservative").

The ALJ further discounted Plaintiff's testimony based

on her activities of daily living. Tr. 20. The ALJ noted the

medical records reflected Plaintiff was able "to attend a large

conference and enjoy herself," go out with friends and her

husband, and visit family members. Tr. 20. Plaintiff also

performs adequate self-care, prepares simple meals, does

household chores, and goes to the store. Tr. 20. The ALJ

concluded these activities "indicate a higher level of function"

than alleged by Plaintiff. Tr. 20.

Nevertheless, the Ninth Circuit has found "the mere

fact that a plaintiff has carried on certain daily activities

. . . does not in any way detract from her credibility as to her

14 - OPINION AND ORDER

overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050

(9th Cir. 2001). Moreover, here Plaintiff's activities do not

contradict her testimony that she generally isolates herself at

home; goes out only when accompanied by another person; and, in

addition, does not engage in pursuits that involve "the

performance of physical functions that are transferable to a

work setting." See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

1989))(Daily activities may be grounds for an adverse

credibility finding “if a claimant is able to spend a

substantial part of his day engaged in pursuits involving the

performance of physical functions that are transferable to a

work setting.”).

On this record the Court concludes the ALJ erred when

she discounted Plaintiff's subjective symptom testimony and

failed to provide legally sufficient reasons supported by

substantial evidence in the record for doing so.

II. The ALJ erred when she discounted the medical opinions of

Dr. Limon and L.P.C. Flynn.

Plaintiff contends the ALJ erred when she discounted the

medical opinions of Dr. Limon, an examining psychologist, and

L.P.C. Flynn, Plaintiff's treating therapist.

15 - OPINION AND ORDER

A. Standards

The Court notes the regulations regarding evaluation

of medical evidence have been amended and several of the prior

Social Security Rulings, including SSR 96-2p, have been

rescinded for claims protectively filed after March 27, 2017.

The new regulations provide the Commissioner "will no longer

give any specific evidentiary weight to medical opinions; this

includes giving controlling weight to any medical opinion."

Revisions to Rules Regarding the Evaluation of Medical Evidence

(Revisions to Rules), 2017 WL 168819, 82 Fed. Reg. 5844, at

5867-68 (Jan. 18, 2017). See 20 C.F.R. § 404.1520c(a). Instead

the Commissioner must consider all medical opinions and

"evaluate their persuasiveness" based on "supportability" and

"consistency" using the factors specified in the regulations.

20 C.F.R. § 404.1520c(c). Those factors include

"supportability," "consistency," "relationship with the

claimant," "specialization," and "other factors." Id. The

factors of "supportability" and "consistency" are considered to

be "the most important factors" in the evaluation process. Id.

See also Revisions to Rules, 82 Fed. Reg. 5844.

In addition, the regulations change the way the

Commissioner should articulate his consideration of medical

16 - OPINION AND ORDER

opinions.

First, we will articulate our consideration of

medical opinions from all medical sources

regardless of whether the medical source is an

AMS [Acceptable Medical Source]. Second, we will

always discuss the factors of supportability and

consistency because those are the most important

factors. Generally, we are not required to

articulate how we considered the other factors

set forth in our rules. However, when we find

that two or more medical opinions . . . about the

same issue are equally well-supported and

consistent with the record but are not exactly

the same, we will articulate how we considered

the other most persuasive factors. Third, we

added guidance about when articulating our

consideration of the other factors is required or

discretionary. Fourth, we will discuss how

persuasive we find a medical opinion instead of

giving a specific weight to it. Finally, we

will discuss how we consider all of a medical

source's medical opinions together instead of

individually.

Revisions to Rules, 82 Fed. Reg. 5844.

Although the regulations eliminate the "physician

hierarchy," deference to specific medical opinions, and

assigning "weight" to a medical opinion, the ALJ must still

"articulate how [he/she] considered the medical opinions" and

"how persuasive [he/she] find[s] all of the medical opinions."

20 C.F.R. § 404.1520c(a) and (b)(1). The ALJ is required to

"explain how [he/she] considered the supportability and

consistency factors" for a medical opinion. 20 C.F.R.

§ 404.1520c(b)(2). Accordingly, to determine the persuasiveness

17 - OPINION AND ORDER

of a medical opinion the court must evaluate whether the ALJ

properly considered the factors as set forth in the regulations.

B. Analysis

1. Dr. Limon

Before the hearing Plaintiff requested the ALJ to

order a consultative psychological evaluation of Plaintiff to

determine the functional limitations of her mental impairments.

Tr. 342. The ALJ ordered an evaluation, and Dr. Limon performed

a psychodiagnostic examination of Plaintiff on August 17, 2019.

Tr. 1161-70. Dr. Limon noted Plaintiff appeared fearful and sat

erect during the interview. Tr. 1164. Her speech was

spontaneous and her thought process was tangential. Tr. 1164.

Plaintiff appeared dysphoric, and her speech and demeanor showed

a constricted range of emotion. Tr. 1164-65. Her "fund of

knowledge" was mildly impaired, and her social judgment was

moderately impaired. Tr. 1165. Plaintiff had good insight into

her mental status and her need for treatment. Tr. 1165.

Dr. Limon found Plaintiff credible in her statements, and she

did not have any discrepancy or appearance of malingering

regarding her mental-health symptoms. Tr. 166. Dr. Limon

diagnosed Plaintiff with PTSD. Tr. 1166. Dr. Limon opined

Plaintiff is also moderately to markedly impaired in her ability

18 - OPINION AND ORDER

to understand, to carry out, and to remember both complex and

one-two step instructions; extremely impaired in her ability to

sustain concentration and attention and to persist in work-

related activity at a reasonable pace; extremely impaired in her

ability to maintain effective social interaction on a consistent

and independent basis with supervisors, coworkers, and the

general public; moderately impaired in her adaptive functioning;

and required assistance and reminders. Tr. 1166.

As part of her report Dr. Limon completed a

Medical Statement of Ability to Do Work-Related Activities

(Mental). Tr. 1168-70. Dr. Limon concluded Plaintiff had

moderate limitations in her ability to understand and to

remember simple instructions; marked limitations in her ability

to make judgments on simple work-related decisions; marked

limitations in her ability to understand, to remember, and to

carry out complex instructions; marked limitations in her

ability to make judgments on complex work-related decisions; and

extreme limitations in her ability to interact appropriately

with the public, supervisors, and coworkers and to respond

appropriately to usual work situations and changes in a routine

work setting. Tr. 1168.

As set out earlier, the ALJ is required to apply

19 - OPINION AND ORDER

five factors to determine the persuasiveness of a medical

opinion: (1) supportability; (2) consistency with other

evidence in the record; (3) the medical sources' relationship

with the claimant including length, frequency, and extent of

treatment; (4) the medical sources' area of specialization;

and (5) other factors including the medical sources' familiarity

with other evidence and the requirements of the disability

program. 20 C.F.R. § 404.1520. Supportability and consistency

are considered the most important factors. 20 C.F.R.

§ 404.1520c(c). Regulations also recognize a provider who bases

her opinion on an independent examination of a claimant rather

than only a review of available records "may have a better

understanding of [the claimant's] impairment(s)." 20 C.F.R.

§ 416.920c(c)(3)(v).

As noted, the ALJ referred Plaintiff to Dr. Limon

for an independent diagnostic evaluation. Dr. Limon reviewed

Plaintiff's medical records, conducted a clinical interview of

Plaintiff, and performed a mental-status evaluation. The ALJ,

however, was "not persuaded" by Dr. Limon's opinion on the

grounds that her opinion was based on a one-time examination of

Plaintiff and the limitations assessed by Dr. Limon were

inconsistent with her own examination findings and Plaintiff's

20 - OPINION AND ORDER

improvement reflected in the overall record. Tr. 20-21.

As to the ALJ's finding that Dr. Limon's opinion

was inconsistent with her own findings, the ALJ stated:

[T]he overall evidence of record . . .

generally showed alertness, orientation, a

pleasant and cooperative, but depressed

demeanor, intact grooming and hygiene[,]

poor impulse control and isolative behaviors

variable mood and affect, variable memory,

variable attention and concentration, intact

cognition, average intellectual functioning,

intact abstract reasoning, intact

comprehension, and a generally logical,

thought process, but variable though

process, with minimal insight, and variable

judgment."

Tr. 20-21. The ALJ, however, did not provide any explanation to

show how this evidence contradicted Dr. Limon's opinion nor

identify any evidence to support her finding that Dr. Limon's

opinion was inconsistent with her own findings.

The ALJ also stated Dr. Limon's assessment was

inconsistent with Plaintiff's improvement with treatment as

indicated in the overall record. Tr. 21. As Plaintiff asserts

in her Opening Brief, the record reflects with treatment

Plaintiff's mental-health symptoms waxed and waned in severity.

See Pl.'s Br. (13) at 11-13.

Finally, the ALJ found the opinions of the

nonexamining state-agency consultants in March and April 2019 to

21 - OPINION AND ORDER

be "generally" consistent with the medical record and more

persuasive than Dr. Limon's assessment. Tr. 20. The ALJ,

however, did not provide any explanation to support her finding.

Based on this record the Court concludes the ALJ

erred when she failed to provide legally sufficient reasons

supported by substantial evidence in the record for discounting

Dr. Limon's assessment of Plaintiff's limitations.

2. L.P.C. Flynn

L.P.C. Flynn began treating Plaintiff in November

2017. Tr. 472, 491. On September 5, 2018, L.P.C. Flynn

provided a written evaluation of Plaintiff's limitations.

Tr. 471-76. L.P.C. Flynn noted Plaintiff experiences symptoms

of anxiety, which manifest themselves as agoraphobia and panic

attacks, and symptoms of PTSD, which include nightmares and

flashbacks triggered by memories. Tr. 473. L.P.C. Flynn noted

Plaintiff's anxiety and negative self-views are "extremely

problematic" and opined Plaintiff would "run the risk of

dissociation and not being able to function in a work

environment with others." Tr. 473. She further opined

Plaintiff's anxiety would be problematic even in simple,

routine, low-stress work that did not require contact with the

22 - OPINION AND ORDER

public or close coordination with coworkers and supervisors.

Tr. 473.

L.P.C. Flynn opined Plaintiff is markedly

impaired in her ability to understand, to remember, and to carry

out simple instructions, and to make judgments on simple work-

related decisions. She further opined Plaintiff is extremely

impaired in her ability to understand, to remember, and to carry

out complex instructions and to make judgments on complex work-

related decisions. Tr. 475. L.P.C. Flynn also found Plaintiff

is moderately impaired in her ability to interact appropriately

with the public, markedly impaired in her ability to interact

appropriately with supervisors and coworkers, and extremely

impaired in her ability to respond appropriately to usual work

situations and to changes in routine work settings. Tr. 475.

L.P.C. Flynn's assessment was based on Plaintiff's anxiety and

PTSD symptoms, and she concluded these symptoms would prevent

Plaintiff from functioning effectively in any position.

Tr. 475.

The ALJ was "not persuaded" by L.P.C. Flynn's

assessment on the ground that the "marked and extreme

limitations" she assessed are inconsistent with the medical

record. Tr. 21. As noted, the ALJ is required to explain how

23 - OPINION AND ORDER

she "considered the supportability and consistency factors" when

determining the persuasiveness of a medical opinion. 20 C.F.R.

§ 404.1520c(b)(2). Here the ALJ failed to provide any

explanation or analysis to support her conclusion.

Based on this record the Court concludes the ALJ

erred when she failed to provide legally sufficient reasons

supported by substantial evidence in the record for discounting

L.P.C. Flynn's assessment of Plaintiff's limitations.

In summary, the Court concludes the ALJ erred in her

evaluation of the medical opinions of Dr. Limon and L.P.C.

Flynn.

REMAND

The decision whether to remand for further proceedings or

for payment of benefits generally turns on the likely utility of

further proceedings. Carmickle, 533 F.3d at 1179. The court

may "direct an award of benefits where the record has been fully

developed and where further administrative proceedings would

serve no useful purpose." Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman v. Apfel, 211 F.3d 1172,

24 - OPINION AND ORDER

1178 (9th Cir. 2000). The court should grant an immediate award

of benefits when

(1) the ALJ has failed to provide legally sufficient

reasons for rejecting such evidence, (2) there are no

outstanding issues that must be resolved before a

determination of disability can be made, and (3) it is

clear from the record that the ALJ would be required

to find the claimant disabled were such evidence

credited.

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits

if the case were remanded for further proceedings. Id. at 1178

n.2.

As noted, the Court has concluded the ALJ erred when she

failed to provide legally sufficient reasons supported by

substantial evidence in the record for discounting Plaintiff's

testimony and for discounting the persuasiveness of the medical

opinions of Dr. Limon and L.P.C. Schwartz regarding Plaintiff's

limitations. Thus, the Court concludes consideration of the

record as a whole establishes that the ALJ would be required to

find Plaintiff disabled and to award benefits to Plaintiff if

this evidence is credited.

Accordingly, the Court remands this matter for the

immediate calculation and payment of benefits.

25 - OPINION AND ORDER

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner and REMANDS this matter for the immediate

calculation and payment of benefits.

IT IS SO ORDERED.

DATED this 9th day of March, 2021.

/s/ Anna J. Brown

______________________________________

ANNA J. BROWN

United States Senior District Judge

26 - OPINION AND ORDER