recognizing that it is not 21 legitimate to discount an opinion for a reason that is not responsive to the medical 22 opinion
How later courts described this case
- recognizing that it is not 21 legitimate to discount an opinion for a reason that is not responsive to the medical 22 opinion
- Although the claimant 20 could grocery shop without assistance, walk approximately an hour in the malls, 21 play cards, swim, watch television, and read, those activities did not consume a 22 substantial part of her day and so did not detract from her credibility.
- considering the entire 19 record
- interpreting medical records in their context
Written by the judges who cited it.
The opinion
1 EASTERN DISTRICT OF WASHINGTON
Mar 14, 2022
2
SEAN F. MCAVOY, CLERK
3
4
5 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
6
7 TRINIDAD R.,1 No. 4:21-cv-5007-EFS
8 Plaintiff, ORDER GRANTING PLAINTIFF’S
SUMMARY-JUDGMENT MOTION,
9 v. DENYING DEFENDANT’S
SUMMARY-JUDGMENT MOTION,
10 KILOLO KIJAKAZI, Acting REVERSING THE ALJ, AND
Commissioner of Social Security, REMANDING FOR PAYMENT OF
11 BENEFITS
Defendant.
12
13
14 Plaintiff Trinidad R. appeals the denial of benefits by the Administrative
15 Law Judge (ALJ). Because the ALJ consequentially erred when evaluating
16 Plaintiff’s symptom testimony and the medical opinions, Plaintiff’s Motion for
17 Summary Judgment, ECF No. 17, is granted, the Commissioner’s Motion for
18 Summary Judgment, ECF No. 20, is denied, the ALJ’s decision is reversed, and
19 this matter is remanded for payment of benefits.
20
21
1 To protect the privacy of the each social-security plaintiff, the Court refers to
22
them by first name and last initial or as “Plaintiff.” See LCivR 5.2(c).
23
1
I. Five-Step Disability Determination
2
A five-step sequential evaluation process is used to determine whether an
3
adult claimant is disabled.2 Step one assesses whether the claimant is engaged in
4
substantial gainful activity.3 If the claimant is engaged in substantial gainful
5
activity, benefits are denied.4 If not, the disability evaluation proceeds to step two.5
6
Step two assesses whether the claimant has a medically severe impairment
7
or combination of impairments that significantly limit the claimant’s physical or
8
mental ability to do basic work activities.6 If the claimant does not, benefits are
9
denied.7 If the claimant does, the disability evaluation proceeds to step three.8
10
Step three compares the claimant’s impairment or combination of
11
impairments to several recognized by the Commissioner as so severe as to preclude
12
substantial gainful activity.9 If an impairment or combination of impairments
13
14
15
2 20 C.F.R. § 416.920(a).
16
3 Id. § 416.920(a)(4)(i).
17
4 Id. § 416.920(b).
18
5 Id.
19
6 Id. § 416.920(a)(4)(ii).
20
7 Id. § 416.920(c).
21
8 Id.
22
9 Id. § 416.920(a)(4)(iii).
23
1
meets or equals one of the listed impairments, the claimant is conclusively
2
presumed to be disabled.10 If not, the disability evaluation proceeds to step four.
3
Step four assesses whether an impairment prevents the claimant from
4
performing work he performed in the past by determining the claimant’s residual
5
functional capacity (RFC).11 If the claimant can perform past work, benefits are
6
denied.12 If not, the disability evaluation proceeds to step five.
7
Step five, the final step, assesses whether the claimant can perform other
8
substantial gainful work—work that exists in significant numbers in the national
9
economy—considering the claimant’s RFC, age, education, and work experience.13
10
If so, benefits are denied. If not, benefits are granted.14
11
The claimant has the initial burden of establishing he is entitled to disability
12
benefits under steps one through four.15 At step five, the burden shifts to the
13
Commissioner to show the claimant is not entitled to benefits.16
14
15
16
10 20 C.F.R. § 416.920(d).
17
11 Id. § 416.920(a)(4)(iv).
18
12 Id.
19
13 Id. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984).
20
14 20 C.F.R. § 416.920(g).
21
15 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
22
16 Id.
23
1
II. Factual and Procedural Summary
2
On December 15, 2015, Plaintiff filed a Title 16 application alleging
3
disability beginning in 2000.17 His claim was denied initially and on
4
reconsideration.18 An administrative hearing was held by telephone in 2018 before
5
ALJ Jesse Shumway, who subsequently issued an unfavorable decision denying
6
Plaintiff’s application.19 Plaintiff requested review of the ALJ’s decision by the
7
Appeals Council, which denied review.20 He then sought review by this Court.21 In
8
that lawsuit, the parties agreed that the matter should be remanded back to the
9
ALJ for further proceedings to reevaluate step three, reconsider the medical
10
evidence, reevaluate Plaintiff’s symptom reports, and reassess Plaintiff’s RFC.22
11
ALJ Shumway held a second telephonic hearing in 2020.23 Thereafter, the
12
ALJ issued a new decision denying Plaintiff’s disability application, finding:
13
14
17 AR 175–81. Because the application filing date starts the relevant period for a
15
Title 16 claim, the ALJ appropriately considered whether Plaintiff was disabled
16
beginning December 15, 2015.
17
18 AR 106–09, 116–19.
18
19 AR 12–72.
19
20 AR 1–8.
20
21 AR 493–94, 496–511; Trinidad R. v. Commissioner, 19-cv-5052 (E.D. Wash. 2019).
21
22 AR 512–17.
22
23 AR 443–68.
23
1
• Step one: Plaintiff had not engaged in substantial gainful activity
2
since the 2015 application date.
3
• Step two: Plaintiff had the following medically determinable severe
4
impairments: borderline intellectual functioning, attention deficit
5
disorder (ADD),24 major depressive disorder, and generalized anxiety
6
disorder.
7
• Step three: Plaintiff did not have an impairment or combination of
8
impairments that met or medically equaled the severity of one of the
9
listed impairments.
10
• RFC: Plaintiff had the RFC to perform a full range of work at all
11
exertional levels but with the following nonexertional limitations:
12
he is limited to simple, routine, repetitive tasks with a
reasoning level of two or less; he needs to learn by
13
demonstration rather than by verbal instruction; he requires
a routine, predictable work setting with no more than
14
occasional, simple changes, and simple decision-making; he
is precluded from contact with the public; he is limited to
15
occasional, superficial interaction with supervisors and
coworkers, with no collaborative tasks; and he cannot work
16
at an assembly line pace or perform other fast-paced work.
17
• Step four: Plaintiff had no past relevant work.
18
19
24 The ALJ referred to ADD, while many medical records refer to ADHD (attention
20
deficit hyperactivity disorder). The Court refers to the condition as so referenced by
21
the ALJ or health care professional but understands the references are referring to
22
the same mental health condition experienced by Plaintiff.
23
1
• Step five: considering Plaintiff’s RFC, age, education, and work
2
history, Plaintiff could perform work that existed in significant
3
numbers in the national economy, such as janitor, hand packager,
4
garment sorter, housekeeper, bagger, and final assembler.25
5
When assessing the medical-opinion evidence, the ALJ gave:
6
• great weight to the reviewing opinions of John Gilbert, Ph.D., Renee
7
Eisenhauer, Ph.D., and Jay Toews, Psy.D., who each opined that
8
Plaintiff was only mildly to moderately impaired.
9
• partial weight to the reviewing opinion of Donna Veraldi, Ph.D., who
10
opined that Plaintiff was “probably” moderately impaired as to the
11
B Criteria if he took ADD medication, and that without medication he
12
was markedly impaired as to concentration, persistence, and pace and
13
adapting and managing himself.
14
• little weight to the examining opinions of N.K. Marks, Ph.D. and
15
Philip Barnard, Ph.D., and the reviewing opinions of Melanie
16
Mitchell, Psy.D. and Tasmyn Bowes, Psy.D., who each opined that
17
Plaintiff was markedly impaired as to performing within a schedule.26
18
The ALJ also found Plaintiff’s medically determinable impairments could
19
reasonably be expected to cause some of the alleged symptoms, but his statements
20
21
25 AR 422–42.
22
26 AR 434–35.
23
1
concerning the intensity, persistence, and limiting effects of those symptoms were
2
inconsistent with the medical evidence and other evidence.27 Likewise, the ALJ
3
discounted the lay statement from Plaintiff’s mother.28
4
Plaintiff timely appealed to this Court.29 Plaintiff argues the ALJ improperly
5
rejected Plaintiff’s subjective complaints and erroneously weighed the medical
6
opinions, thereby improperly determining that he did not meet a listing and that
7
he had the RFC to sustain fulltime work.
8
III. Standard of Review
9
A district court’s review of the Commissioner’s final decision is limited.30 The
10
Commissioner’s decision is set aside “only if it is not supported by substantial
11
evidence or is based on legal error.”31 Substantial evidence is “more than a mere
12
scintilla but less than a preponderance; it is such relevant evidence as a reasonable
13
mind might accept as adequate to support a conclusion.”32 Moreover, because it is
14
the role of the ALJ—and not the Court—to weigh conflicting evidence, the Court
15
16
17
27 AR 432–34.
18
28 AR 435–36.
19
29 See 20 C.F.R. § 422.201.
20
30 42 U.S.C. § 405(g).
21
31 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).
22
32 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).
23
1
upholds the ALJ’s findings “if they are supported by inferences reasonably drawn
2
from the record.”33 The Court considers the entire record.34
3
Further, the Court may not reverse an ALJ decision due to a harmless
4
error.35 An error is harmless “where it is inconsequential to the ultimate
5
nondisability determination.”36
6
IV. Analysis
7
A. Symptom Reports: Plaintiff establishes consequential error.
8
Plaintiff argues the ALJ failed to provide clear and convincing reasons
9
supported by substantial evidence for discounting his symptom reports. As is
10
explained below, the Court agrees.
11
1. Plaintiff’s Symptoms
12
At the most recent hearing in 2020, Plaintiff testified that he has problems
13
maintaining focus, often gets distracted while doing chores, and needs reminders to
14
take care of hygiene, wash his clothes, and perform chores.37 He testified that it is
15
common for him to begin a project, get distracted, and then need a reminder to
16
17
33 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
18
34 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (considering the entire
19
record); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998).
20
35 Molina, 674 F.3d at 1111.
21
36 Id. at 1115 (cleaned up).
22
37 AR 456–58.
23
1
finish the task.38 If he goes grocery shopping, he generally goes with his mother, or
2
else he forgets basic items that he needs to buy, even if he has a list.39 Plaintiff
3
testified that he tried living with his sister but that he fairly recently returned
4
home to live with his mother and step-father because it was too difficult on his
5
sister to remind him to take care of himself and help out around the house.40
6
He also testified that, since the ALJ’s first disability denial decision,
7
Plaintiff tried working at a grocery store as a stocker and a janitor but he was
8
unable to stay on task without constant reminders or work at a productive pace,
9
and he was therefore fired.41 He also tried working at an insulation company but
10
he was let go because he was unable to remember how to perform the task correctly
11
even though it was demonstrated to him several times.42 Plaintiff also testified
12
that his agricultural-work attempts were unsuccessful because he was unable to
13
maintain pace, as he would just “space out.”43 He also stated that, although he had
14
been trying to obtain his GED since 2017, he had not yet passed his GED exam.44
15
16
38 AR 457–58.
17
39 AR 457–60.
18
40 AR 455–56.
19
41 AR 460–61.
20
42 AR 461–62.
21
43 AR 463.
22
44 AR 464–65.
23
1
In addition, Plaintiff reported that he last used ADHD medications about 5–
2
6 years ago because the medication caused him to feel not “normal,” as it made him
3
to “think too much.”45
4
At the initial hearing, Plaintiff testified to many of these same challenges
5
and also that he is easily frustrated and will have angry outbursts.46
6
2. ALJ’s Findings
7
Although the ALJ found that Plaintiff was not malingering, the ALJ found
8
Plaintiff’s statements about the intensity, persistence, and limiting effects of his
9
medically determinable impairments inconsistent with the objective medical
10
evidence, his improvement with treatment, his level of daily activity, and his past
11
work, including his statements about why he could not work.47
12
3. Standard
13
The ALJ must “consider all of the evidence in an individual’s record” to
14
“determine how symptoms limit [the claimant’s] ability to perform work-related
15
activities” and provide “specific, clear and convincing” reasons supported by
16
substantial evidence for rejecting the claimant’s symptom reports after considering
17
18
19
20
45 AR 464.
21
46 AR 59–61.
22
47 AR 432–34.
23
1
the relevant factors.48 Factors to be considered in evaluating the intensity,
2
persistence, and limiting effects of a claimant’s symptoms include: 1) daily
3
activities; 2) the location, duration, frequency, and intensity of pain or other
4
symptoms; 3) factors that precipitate and aggravate the symptoms; 4) the type,
5
dosage, effectiveness, and side effects of any medication the claimant takes or has
6
taken to alleviate pain or other symptoms; 5) treatment, other than medication, the
7
claimant receives or has received for relief of pain or other symptoms; 6) any non-
8
treatment measures the claimant uses or has used to relieve pain or other
9
symptoms; and 7) any other factors concerning the claimant’s functional
10
limitations and restrictions due to pain or other symptoms.49
11
4. Objective Medical Evidence
12
First, the ALJ discounted Plaintiff’s reported symptoms because “the
13
objective medical evidence and clinical observations in this record [were] largely
14
unremarkable, as discussed by Dr. Toews.”50 Objective medical evidence—signs,
15
laboratory findings, or both—is a relevant factor for the ALJ to consider when
16
17
18
48 See 20 C.F.R. § 416.929(c); SSR 16-3p, 2016 WL 1119029, at *2, 7; Ghanim v.
19
Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at
20
1036).
21
49 20 C.F.R. § 416.929(c); SSR 16-3p.
22
50 AR 432.
23
1
assessing a claimant’s symptoms.51 However, the ALJ cannot discount symptom
2
reports solely because they are not fully corroborated by the objective medical
3
evidence; yet, “contradiction with the medical record is a sufficient basis for
4
rejecting the claimant’s subjective testimony.”52
5
In finding that the objective medical evidence and clinical observations were
6
“largely unremarkable,” the ALJ relied on Dr. Toews’ testimony and also
7
highlighted that “Plaintiff’s IQ scores are in the 70s and his mental status exams
8
reflect only mild-moderate impairment.”53 Dr. Toews testified at the second
9
administrative hearing. He did not examine Plaintiff but reviewed the
10
psychological examination reports in the file, including those completed by
11
Dr. Barnard and Dr. Marks.
12
///
13
///
14
///
15
//
16
/
17
18
51 20 C.F.R. § 416.902(k); 3 Soc. Sec. Law & Prac. § 36:26, Consideration of
19
objective medical evidence (2019).
20
52 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Carmickle v. Comm’r,
21
Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).
22
53 AR 432.
23
1
The tests conducted by Dr. Barnard and Dr. Marks indicated:
2
Dr. Marks (2016)54 Dr. Barnard (2018)55
3 Wechsler Adult Intelligence Scale-IV Weschler Adult Intelligence Scale -IV
• Perceptual reasoning = 88, 21%, low • Perceptual reasoning = 86, 18%,
4 average low average
• Full scale = 72, 3%, borderline • Full scale = 74, 4%, borderline
5 • Verbal comprehension =70, 2%, • Verbal comprehension = 72, 3%,
borderline borderline
6 • Working memory = 69, 2%, • Working memory = 71, 3%,
extremely low borderline
7 • Processing speed = 76, 3%, • Processing speed = 84, 14%, low
borderline average
• General ability = 77, 6%, borderline • General ability = 77, 6%,
8
borderline
9 No Weschler Memory Scale-IV Wechsler Memory Scale-IV
administered but noting Plaintiff “showed • Auditory memory = 77, 6%,
10 very poor working memory. He had borderline
trouble holding information in his short • Visual memory = 80, 9%, low
term memory, manipulating it and average
11
drawing new conclusions or reapplying it • Visual working memory = 83,
in some way. His ability to solve mental 13%, low average
12 math problems, remember and repeat • Immediate memory = 70, 2%,
back a list of numbers forward and borderline range
13 backward or sequence a set of numbers • Delayed memory = 80, 9%, low
and letters was very poor.”56 average
14
“Trinidad was able to remember auditory Plaintiff’s memory was not within
15 information immediately after hearing it normal limits. He was able to recall
if it was simple. He was not able to zero words out of three after a five-
16 remember what he heard, rearrange it, minute delay.
and reapply it to a new situation. He will
remember best what he sees.”57
17
18
19
54 AR 296–304.
20
55 AR 627–31.
21
56 AR 300.
22
57 AR 302.
23
1
Dr. Marks acknowledged that Plaintiff did not “meet the criteria for mild
2
intellectual disability due to his average scores on the three subtests for perceptual
3
reasoning area and his overall perceptual reasoning score of 88, which falls in the
4
low average range.”58 Nonetheless, Dr. Marks opined that Plaintiff would “have a
5
very hard time holding any sort of job right now without some sort of interventions
6
due to the multiplicity of his symptoms.”59
7
Dr. Marks’ 2016 opinion was largely consistent with her examining opinion
8
in 2015. In her 2015 report, Dr. Marks noted that the testing reflected that
9
Plaintiff “struggled with working memory and with distant memory” and “has very
10
poor mental flexibility,” and she opined that his abilities to learn new tasks, adapt
11
to changes in a routine work setting, and to perform activities within a schedule,
12
maintain regular attendance, and be punctual within customary tolerances without
13
special supervision was markedly limited.60 Dr. Marks’ 2015 opinion was reviewed
14
and agreed with by Melanie Mitchell, PsyD.61
15
Dr. Barnard opined that Plaintiff had a marked overall severity rating,
16
including marked limitations in the ability to perform activities within a schedule,
17
maintain regular attendance, and be punctual within customary tolerances without
18
19
58 AR 299.
20
59 AR 303.
21
60 AR 289, 291.
22
61 AR 407–09.
23
1
special supervision and completing a normal work day and work week without
2
interruptions from psychologically based symptoms.62 Dr. Barnard’s opinion was
3
reviewed and agreed with by Tasmyn Bowes, PsyD, who wrote that “evidence
4
suggests that neurodevelopmentally based difficulties are likely primary to his
5
problem maintaining employment.”63
6
Similar to the cognitive testing conducted by Dr. Barnard and Dr. Marks, a
7
Complex Child Psychological Evaluation conducted in 2012 by Carl Epp, Ph.D.,
8
showed that Plaintiff, even when on ADHD medication, struggled with
9
maintaining attention, hyperactivity, and impulsiveness and that Plaintiff had
10
“some major problems” with “intelligence and aptitude testing.”64 And Dr. Veraldi,
11
who testified at the first administrative hearing, found that Plaintiff had
12
“significant difficulties learning” with “a borderline IQ score” and he “is a person
13
who needs some guidance, and needs somebody to help put him into a job, and find
14
the right job, and deal with the problems.”65
15
While Plaintiff’s counseling records generally indicate normal mood, affect,
16
thought process, and orientation, there is no indication in the record that the
17
counseling treatment was directed at Plaintiff’s learning disorders or ADD, but
18
19
62 AR 629–30.
20
63 AR 632–34, 640.
21
64 AR 273–86 (cleaned up).
22
65 AR 36, 39.
23
1
rather his anxiety and depression. The counselor repeatedly encouraged him to
2
continue his GED studies, and twice accompanied Plaintiff to the college to sign
3
him up for GED classes. Although Plaintiff took classes intermittently between
4
2017 and 2020 and he expressed a desire to obtain his GED (and to become an
5
engineer), Plaintiff had not yet obtained his GED by October 2020.
6
The objective medical evidence shows that, collectively, Plaintiff’s
7
intellectual and other mental impairments impact his abilities to concentrate,
8
persist, and maintain pace within a schedule. The wide spectrum of Plaintiff’s
9
cognitive limitations, as is reflected in the testing, supports rather than
10
contravenes Plaintiff’s reported symptoms. The ALJ’s finding that the objective
11
medical evidence and clinical observations were “largely unremarkable” is not
12
supported by substantial evidence.66
13
5. Improvement with Treatment and Failure to Engage in Treatment
14
An ALJ may discount a claimant’s reported symptoms if they are sufficiently
15
and consistently improved by treatment.67 And an ALJ may discount a claimant’s
16
reported symptoms if prescribed treatment is available and expected to restore his
17
18
19
66 See Ghanim, 763 F.3d at 1164; Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.
20
1984) (cleaned up) (requiring ALJ to consider all competent evidence in the record).
21
67 20 C.F.R. § 416.913(c)(3); Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595,
22
599–600 (9th Cir. 1999) (considering evidence of improvement).
23
1
ability to work but the claimant, without good cause, has failed to engage in such
2
treatment.68
3
Here, the ALJ discounted Plaintiff’s reported symptoms because his
4
“limitations are clearly exacerbated when he does not use medications to control
5
his ADD” and Plaintiff failed to “fully engage” with counseling.69 The cited record—
6
and record as a whole—does not support this finding.
7
First, the ALJ cited to Dr. Epp’s 2012 Complex Child Psychological
8
Evaluation Report completed when Plaintiff was fourteen, wherein Dr. Epp
9
discussed Plaintiff’s medication for ADHD and the treating physician’s notes,
10
which stated, “Patient is doing well in school” and that “Patient claims good focus
11
and attention on medication but seems to be wearing off after school . . . .”70 These
12
self-reported “positive” statements about the then-youthful Plaintiff vary
13
significantly from his actual performance at school, and one must consider that a
14
school day is shorter than a workday.71 Plaintiff’s January 2012 school transcript,
15
which encompassed the period of time that Plaintiff was taking medication,
16
indicates he received Ds and Fs in all classes, except for a C- in Composition and a
17
18
68 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); SSR 18-3p; POMS DI
19
23010.009.
20
69 AR 432.
21
70 AR 274.
22
71 Ghanim, 763 F.3d at 1164 (interpreting medical records in their context).
23
1
C+ in fitness.72 In 2014, Plaintiff earned Ds and Fs in all classes except for P.E., in
2
which he received an A-.73 When he dropped out of school in the 12th grade,
3
Plaintiff’s grade point average was 1.3.74 Even if Plaintiff’s mood and concentration
4
improved to some degree when he took medication, he still struggled significantly
5
at school. The “improvement” statements in Dr. Epp’s report do not serve as
6
substantial evidence to discount Plaintiff’s reported difficulties maintaining
7
concentration, persistence, and pace.
8
Second, in support of his finding that Plaintiff did better when on
9
medication, the ALJ cited to an April 2017 psychotherapy note.75 It is unclear why
10
the ALJ cited to this treatment note, as during this psychotherapy session Plaintiff
11
reported that he had used some of the counselor’s suggested coping techniques
12
during a difficult interaction with a family member but nonetheless Plaintiff was
13
still so upset that he threw his food in anger—an improved reaction compared to
14
his prior reaction to a similar situation during which he punched a mirror and cut
15
his fist.76 This noted “improvement” is not a clear and convincing reason supported
16
by substantial evidence to discount Plaintiff’s reported stress-related symptoms.
17
18
72 AR 191–92.
19
73 AR 222.
20
74 AR 628.
21
75 AR 383–85.
22
76 AR 384.
23
1
Third, the ALJ cited to Dr. Marks’ 2015 evaluation wherein it states “he was
2
diagnosed with ADHD in 2013 by Dr. Tatunay. He was on Adderall for a while but
3
has not been on it for about 2 years. He reports that he has an extremely difficult
4
time without medications, does not recall what people say and ‘Spaces out’ without
5
medications.”77 On its face, this reported statement indicates that Plaintiff’s
6
symptoms improved with medication; however, his grades, Dr. Epp’s test results,
7
and the mother’s statements indicate that Plaintiff continued to struggle
8
significantly pace even when on medication.
9
Fourth, the ALJ found that “even without meds, the evidence shows
10
[Plaintiff] is no more than moderately limited.”78 In making this finding, the ALJ
11
relied on Dr. Barnard’s testing which “yielded higher IQ and memory scores” than
12
the testing by Dr. Marks in 2016. Yet, as the above chart indicates, the test results
13
were largely similar—both indicated that Plaintiff’s intellect, working memory, and
14
general ability were significantly limited. Although Plaintiff’s working memory
15
improved by 1% and his processing speed increased by 9% between these two
16
examinations, the overall test results do not afford substantial evidence to support
17
the ALJ’s finding that “even without meds” Plaintiff “is no more than moderately
18
limited.”79
19
20
77 AR 403.
21
78 AR 432.
22
79 AR 432.
23
1
Fifth, the ALJ found that Plaintiff failed to fully engage with counseling,
2
highlighting that Plaintiff was “discharged from counseling in April 2020, after
3
failing to engage for almost a year.”80 The record reflects that Plaintiff missed
4
counseling appointments when he initially began counseling in the spring of
5
2017.81 However, he routinely attended counseling from May 2017 to October 2017,
6
at which time a new counselor was assigned to his case, followed by his
7
grandfather’s death, and his involvement in a motor vehicle accident.82 He
8
resumed counseling on a regular basis from January 2018 to March 2018, at which
9
time he resumed the GED program and had difficulty managing GED attendance,
10
homework, and counseling.83 He then resumed counseling in May 2018 and
11
continued through July 2018, stopping again when he began a job.84 In March
12
2019, he resumed counseling after losing that job and continued with counseling
13
through May 2019, when he tried to find work again.85 This record reflects that
14
Plaintiff meaningfully engaged in counseling but counseling was sometimes
15
interrupted when he was addressed other things, such as major life stressors,
16
17
80 AR 432.
18
81 See, e.g., AR 401, 394–97.
19
82 AR 335–38, 694.
20
83 AR 327–33, 679–85.
21
84 AR 672–77, 643–45.
22
85 AR 641–61.
23
1
participating in the GED program, or trying to gain (and retain) employment.
2
While the counseling notes generally indicate fairly normal mental status findings
3
as to mood and behavior, the counseling notes also reflect that, notwithstanding a
4
desire to obtain a GED or maintain a job, Plaintiff was unable to successfully
5
complete the GED program with the repeated support of his counselor and that he
6
was unable to maintain a fulltime job.86 Plaintiff’s inability to complete the GED
7
program over a span of several years and/or hold down a fulltime job,
8
notwithstanding a desire to do so, supports rather than detracts from Plaintiff’s
9
reported symptoms. The ALJ’s finding that Plaintiff failed to fully engage in
10
counseling is not a clear and convincing reason supported by substantial evidence
11
to discount Plaintiff’s reported symptoms. Moreover, the ALJ failed to explain how
12
additional counseling would assist Plaintiff with his borderline intellectual
13
functioning and ADD, which are the main sources of his concentration, persistence,
14
and pace difficulties.
15
Sixth, the ALJ discounted the reasons given by Plaintiff for discontinuing
16
his ADD medication because 1) Plaintiff did not report side effects to treatment
17
providers, 2) there is no indication that Plaintiff attempted other medication that
18
might have the same positive results without alleged side effects, and 3) Plaintiff
19
did not seek medication even though he had medical insurance.
20
21
22
86 AR 328–29, 649–50, 658–59.
23
1
As to the first basis, the only individuals Plaintiff sought treatment from
2
were his counselors, and there is no indication that the counselors were qualified to
3
prescribe medication for Plaintiff’s ADD. Therefore, that Plaintiff did not report
4
ADD medication side effects to his counselors is not a legitimate basis to discount
5
his symptom testimony.
6
As to the second basis, there is no medical evidence or testimony that
7
different ADD medication would provide the “same positive results” without side
8
effects. Moreover, as stated previously, the record does not support a finding that
9
ADD medication would so improve his ability to concentrate, persist, and maintain
10
pace that he would no longer be markedly limited.
11
As to the third basis (that Plaintiff did not seek medication even though he
12
had medical insurance), Dr. Marks in 2015 recommended that Plaintiff “[s]hould
13
revisit medications again with his family physician as they may help him with
14
focus and concentration,”87 and in 2016, she recommended “medication
15
management for symptoms of ADHD, anxiety, depression.”88 Dr. Veraldi testified
16
that medication “probably” would reduce Plaintiff’s concentration, persistence, and
17
pace limitations to “moderate,” though she indicated the record was not clear as to
18
why he stopped the medication and why he had not resumed medication.89
19
20
87 AR 290.
21
88 AR 304.
22
89 AR 35–46.
23
1
Notwithstanding these hopeful recommendations that ADD medication would
2
assist Plaintiff, the school records and Dr. Epp’s testing reveal that medication did
3
not improve Plaintiff’s non-exertional functioning to an extent that he could persist
4
and sustain fulltime employment. As recognized by Dr. Bowes, the evidence
5
suggests Plaintiff’s “neurodevelopmentally based difficulties are likely primary to
6
his problem maintain employment.”90 That Plaintiff did not resume ADD
7
medication is not a clear and convincing reason on this record to discount his
8
symptom reports.
9
Finally, the ALJ highlighted that Plaintiff’s testimony at the two
10
administrative hearings varied as to the reasons he stopped taking his ADD
11
medication. At the second hearing, Plaintiff stated that the medication made him
12
“think[] too much and he “didn’t feel normal.”91 At the first hearing, he stated the
13
medication gave him insomnia and triggered a gag reflex.92 These statements do
14
vary. However, these reported side effects are not necessarily inconsistent with
15
each other; any number of factors may influence someone’s choice to either stop or
16
continue with a given medication. Further, “it is a questionable practice to chastise
17
one with a mental impairment for the exercise of poor judgment in seeking
18
19
20
90 AR 640.
21
91 AR 463–64.
22
92 AR 48–49.
23
1
rehabilitation.”93 The record reflects that Plaintiff scored poorly on distant memory
2
tests and has borderline intellectual functioning. Therefore, that Plaintiff offered
3
varying accounts as to the side effects of his ADHD medication is not a clear and
4
convincing reason to discount his symptom reports. Moreover, this record does not
5
indicate that with ADD medication Plaintiff’s cognitive impairments will improve
6
to such extent that he can persist in and sustain fulltime work.
7
6. Activities of Daily Living
8
The ALJ also discounted Plaintiff’s reported symptoms because they were
9
not supported by his level of daily activity. If a claimant can spend a substantial
10
part of the day engaged in pursuits involving the performance of exertional or non-
11
exertional activities, the ALJ may find these activities inconsistent with the
12
reported disabling symptoms.94 Here, the ALJ highlighted 1) Plaintiff’s statements
13
about his activities in his function report, 2) Plaintiff’s description of daily living
14
activities to Dr. Barnard, and 3) that it appeared Plaintiff “relied on his family
15
based on his mother’s wishes, rather than true inability to perform such
16
activities.”95
17
18
19
93 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1209–1300 (9th Cir.
20
1999).
21
94 Molina, 674 F.3d at 1113.
22
95 AR 433.
23
1
First, as to Plaintiff’s statements in his function report, the ALJ highlighted
2
that Plaintiff reported he is generally independent with activities of self-care,
3
including dressing, grooming, and bathing, though he often receives reminders
4
from his mother; assists with the family pets; prepares his own meals; completes
5
multiple household chores on a regular basis; goes out alone; is able to drive a car,
6
though his mother does not want him to do so; shops in stores for necessities; and
7
frequently engages in social activities such as card, board, and video games.96 As to
8
self-care, the ALJ fails to explain how Plaintiff’s ability to engage in self-care with
9
reminders is inconsistent with his reported non-exertional symptoms, particularly
10
as poor hygiene was observed by Dr. Barnard.97 The ALJ also fails to explain how
11
Plaintiff assisting with caring for the family’s two dogs—a task that is not lengthy
12
and for which his mother must provider reminders—is inconsistent with his
13
symptom testimony.98 As to meals and cooking, the record reflects that Plaintiff
14
lives with his family and is not responsible for his meals other than lunch.99 And
15
although Plaintiff can physically drive a car and shop in a store, he does not have a
16
driver’s license and his mother stated that he will get frustrated after shopping for
17
18
96 AR 433 (citing AR 214–21).
19
97 AR 630 (noting that “hygiene was somewhat deficient, with [Plaintiff] exhibiting
20
a pronounced body odor”).
21
98 AR 236.
22
99 AR 236.
23
1
more than one hour.100 Finally, he reported that he “sometimes”—as opposed to
2
“frequently” as the ALJ stated—plays card games, board games, and
3
videogames.”101 None of these noted activities are inconsistent with Plaintiff’s
4
reported difficulties sustaining concentration and persisting for a workday. As the
5
Ninth Circuit has repeatedly asserted, “the mere fact that a plaintiff has carried on
6
certain daily activities, such as grocery shopping, driving a car, or limited walking
7
for exercise, does not in any way detract from h[is] credibility as to h[is] overall
8
disability.”102
9
Second, as to Dr. Barnard’s notes about Plaintiff’s reported symptoms to
10
him, Dr. Barnard wrote that Plaintiff:
11
arises at 7 or 8 AM. He feeds the dogs. He makes himself breakfast.
He accomplishes chores outside. He eats lunch around noon. He works
12
out in the afternoon. He eats dinner at approximately 4 PM. He
spends the evening with his family at home.
13
He reported that he has friends. He does not participate in any group
14
activities. He attends church. He enjoys football, basketball, and
15
16
17
100 AR 238, 288.
18
101 AR 218, 433.
19
102 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (Although the claimant
20
could grocery shop without assistance, walk approximately an hour in the malls,
21
play cards, swim, watch television, and read, those activities did not consume a
22
substantial part of her day and so did not detract from her credibility.).
23
1
soccer. His hobbies include working out. He spends his spare time
jogging. For fun, he plays basketball.103
2
These activities—on their face—appear consistent with activities that would be
3
performed by a high-functioning individual. However, the ALJ failed to consider
4
that these activities must be weighed in the context of the particular impairments
5
and resulting limitations at issue.
6
Plaintiff does not allege he is physically disabled. Rather, Plaintiff alleges he
7
is unable to persist and maintain concentration and pace to the extent required in
8
the competitive workforce. Although Plaintiff can physically do chores and exercise,
9
he requires reminders to perform chores and follow through on responsibilities,
10
including hygiene. His testimony is consistent with the statement from his mother
11
that Plaintiff needs reminders to do chores and take care of his hygiene; his
12
observed poor hygiene by Dr. Barnard; his mother’s statement that Plaintiff has
13
always required constant reminders and encouragement to follow through on an
14
activity; the continuous attempts by his counselors to assist him with the GED
15
program, his poor school grades (except for P.E.); and his inability to maintain a job
16
or to live successfully at his sister’s with less parental support. On this record, the
17
self-reported activities by Plaintiff, an individual with borderline intellectual
18
functioning, is not a clear and convincing reason to discount his reported
19
symptoms.
20
21
22
103 AR 828 (cleaned up).
23
1
Finally, the ALJ found that Plaintiff relied on his family to assist him, not
2
because of his impairments, but because of his mother’s wishes.104 The ALJ did not
3
cite any supporting evidence for this finding. Contrary to this finding, Plaintiff had
4
moved out of his mother and stepfather’s house and lived with his sister for about a
5
year-and-a-half before moving back home because his sister was tired of having to
6
remind him to address his personal hygiene and clean up after himself.105
7
Moreover, his mother’s desire that he not drive is reasonable given that Plaintiff
8
does not have a driver’s license.
9
Plaintiff’s activities of daily living are not a clear and convincing reason
10
supported by substantial evidence to discount his reported non-exertional
11
symptoms.
12
7. Work Attempts
13
The ALJ also discounted Plaintiff’s reported symptoms because he worked
14
part-time most of the quarters since the ALJ’s initial decision in 2018. An ALJ may
15
consider whether a claimant’s intermittent work, attempts to look for work, and
16
reasons for not working are inconsistent with his reported symptoms.106
17
18
104 AR 433.
19
105 AR 677, 446–57.
20
106 20 C.F.R. § 416.929 (considering work record when assessing reported
21
symptoms); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); Bruton v.
22
Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
23
1
After the ALJ’s initial denial in April 2018, Plaintiff tried working as a
2
stocker and janitor at a grocery store, as an insulation installer, and as an
3
agricultural worker.107 Even though Plaintiff was eager to work, as is reflected in
4
his comments during counseling sessions, Plaintiff was unable to sustain any of the
5
positions he obtained.108 Thus, regardless of whether Plaintiff reported to
6
Dr. Barnard in March 2018 that “he could work stocking shelves,” the record
7
reflects that Plaintiff was unable to sustain such work.109 And regardless of what
8
role Plaintiff believes the lack of a father figure in his life plays on his ability to
9
sustain fulltime work, the record reflects that Plaintiff’s mental impairments
10
markedly impacted his ability to sustain fulltime work. The ALJ’s finding
11
otherwise is not a clear and convincing reason supported by substantial evidence.
12
8. Consequential Error
13
Plaintiff establishes the ALJ erred by discounting his symptom reports. This
14
error was consequential. Because the ALJ did not articulate specific, clear, and
15
convincing reasons to reject Plaintiff’s reported symptoms, the corresponding
16
17
18
107 AR 598–610.
19
108 AR 649–60.
20
109 AR 433. See Gatliff v. Comm'r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir.
21
1999) (“Where it is established that the claimant can hold a job for only a short
22
period of time, the claimant is not capable of substantial gainful activity.”).
23
1
limitations must be included in the RFC.110 The vocational expert during the 2018
2
hearing testified that if an individual is off task more than 10 percent of the
3
workday, requires a sheltered work environment, is absent more than once a
4
month, and/or continues to engage in inappropriate interactions with supervisors,
5
then the individual would be unable to sustain competitive employment.111 If
6
Plaintiff’s reported persistence difficulties are credited and included in the RFC,
7
Plaintiff is unable to maintain competitive employment.
8
B. Medical Opinions: Plaintiff establishes consequential error.
9
Plaintiff also argues the ALJ improperly weighed the medical opinions,
10
including Dr. Barnard’s and Dr. Toews’ opinions. The Court agrees.112
11
1. Dr. Barnard
12
In February 2018, Dr. Barnard conducted a psychological evaluation of
13
Plaintiff.113 Dr. Barnard diagnosed Plaintiff with borderline intellectual
14
15
16
110 Lingenfelter, 504 F.3d at 1035.
17
111 AR 69–71. The ALJ did not elicit testimony from the vocational expert at the
18
2020 hearing.
19
112 Because the ALJ consequentially erred when weighing Dr. Barnard’s and
20
Dr. Toews’ opinions, Plaintiff’s arguments as to the other medical opinions need not
21
be addressed.
22
113 AR 635–39.
23
1
functioning and generalized anxiety disorder, and he opined that Plaintiff was
2
overall markedly impacted based on the following limitations:
3
• Moderately limited in understanding, remembering, and persisting in
4
tasks by following very short and simple instructions; performing
5
routine tasks without special supervision; making simple work-
6
related decisions; and asking simple questions or requesting
7
assistance.
8
• Markedly limited in understanding, remembering, and persisting in
9
tasks by following detailed instructions; performing activities within
10
a schedule, maintaining regular attendance, and being punctual
11
within customary tolerances without special supervision; learning
12
new tasks; adapting to changes in a routine work setting; being
13
aware of normal hazards and taking appropriate precautions;
14
communicating and performing effectively in a work setting;
15
maintaining appropriate behavior in a work setting; completing a
16
normal work day and work week without interruptions from
17
psychologically based symptoms; and setting realistic goals and
18
planning independently.
19
The ALJ assigned little weight to Dr. Barnard’s opinion because it was 1) “in
20
a checkbox form with no explanation for the ratings given”; 2) internally
21
inconsistent; 3) “inconsistent with the longitudinal record showing [Plaintiff] to be
22
doing well overall with a stable mood, studying for his GED, looking for work, etc.”;
23
1
and 4) “inconsistent with the detailed testimony of Dr. Toews, who had the benefit
2
of reviewing the entire record.”114
3
2. Dr. Toews
4
Dr. Toews, who testified at the second hearing, diagnosed Plaintiff with
5
borderline intellectual functioning, ADD, major depressive disorder, and
6
generalized anxiety disorder.115 He opined that Plaintiff’s non-exertional
7
limitations from these impairments would be mild if Plaintiff was taking ADD
8
medication; but, Dr. Toews opined that the non-exertional limitations would
9
instead be moderate if Plaintiff was not taking ADD medication.116
10
The ALJ gave great weight to Dr. Toews’ opinion because it was 1) based on
11
the results of the tests performed by Dr. Barnard in 2018 and Dr. Marks in 2016,
12
and 2) “consistent with the longitudinal record, including the test scores and
13
[activities of daily living] noted” in Dr. Barnard’s 2018 report, the counseling
14
records from 2018–20 “showing [Plaintiff] to be doing well overall, and [Plaintiff’s]
15
admitted work activity and functional abilities.”117
16
17
18
19
114 AR 435.
20
115 AR 449–53.
21
116 AR 450–53.
22
117 AR 434.
23
1
3. Standard
2
Because Dr. Barnard’s opinion was contradicted by Dr. Toews’ opinion, the
3
ALJ was required to provide specific and legitimate reasons supported by
4
substantial evidence for discounting Dr. Barnard’s opinion and specific and
5
legitimate reasons supported by substantial evidence for giving great weight to
6
Dr. Toews’ opinion.118
7
4. Analysis
8
a. Adequate explanation
9
First, the ALJ discounted Dr. Barnard’s opinion on the basis that it was a
10
checkbox opinion unsupported by adequate explanation. An ALJ may discount an
11
opinion that is inadequately supported by an explanation.119 Dr. Barnard’s
12
Psychological/Psychiatric Evaluation not only contained his opined “checkbox”
13
limitations as to Plaintiff’s basic work activities but also identified the records he
14
reviewed and his summary of the clinical interview and mental status
15
examination, which included Plaintiff’s results on the conducted Wechsler Memory
16
Scale-IV, WAIS-IV, Digit Span, and Halstead’s Trail Making tests. Based on the
17
reviewed, observed, and elicited information, Dr. Barnard found Plaintiff’s
18
memory, fund of knowledge, abstract thought, and insight and judgment to be
19
20
118 See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
21
119 See Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017); Garrison v.
22
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014).
23
1
abnormal. On this record, Dr. Barnard’s abnormal findings provided a sufficient
2
explanation for his opined limitations, particularly given their consistency with the
3
abnormal findings by the other examining mental health professionals, and that
4
Dr. Toews did not provide a more meaningful explanation for his opined
5
limitations, which were based largely on Dr. Barnard’s and Dr. Marks’ test results.
6
The ALJ’s finding otherwise is not a legitimate reason supported by substantial
7
evidence to discount Dr. Barnard’s opinion.
8
b. Internal consistency
9
Second, the ALJ discounted Dr. Barnard’s marked limitations because they
10
were internally inconsistent with the test scores and Plaintiff’s interview
11
statements about his activities of daily living, while giving more weight to
12
Dr. Toews’ opinion because it was purportedly consistent with Dr. Barnard’s and
13
Dr. Mark’s test scores and Plaintiff’s interview statements. While an ALJ may
14
discount an opinion that is internally inconsistent,120 the tests conducted by Dr.
15
Barnard revealed that Plaintiff had an auditory memory index in the borderline
16
range, a visual memory in the low average range, a visual working memory in the
17
low average range, an immediate memory in the borderline range, and a delayed
18
memory in the low average range, and that his full-scale estimate placed him in
19
20
120 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)
21
(recognizing that a medical opinion may be rejected if it is conclusory or
22
inadequately supported); Lingenfelter, 504 F.3d at 1042.
23
1
the borderline range of intellectual functioning. Plaintiff’s concentration was
2
within normal limits on two other tests. However, that Plaintiff’s concentration
3
was within normal limits on two of the conducted tests does not eviscerate the
4
basis for Dr. Barnard’s opinion given Plaintiff’s abnormal results on the memory,
5
fund-of-knowledge, abstract-thought, and insight-and-judgment tests.
6
The ALJ’s finding that Dr. Barnard’s opinion was inconsistent with the test
7
scores is not supported by substantial evidence. Moreover, Plaintiff’s activities of
8
daily living, as reported to Dr. Barnard, are consistent with Dr. Barnard’s opined
9
marked limitations as they did not require sustained concentration and, to the
10
extent they require persistence, Plaintiff struggles.121 As his mother stated,
11
Plaintiff often requires reminders to do chores and take care of personal hygiene,
12
with Dr. Barnard observing Plaintiff with pronounced body odor. Therefore, the
13
ALJ’s second reason—that Dr. Barnard’s opinion is internally inconsistent with the
14
test scores and Plaintiff’s interview statements about his activities of daily living
15
—is not a specific and legitimate reason supported by substantial evidence.
16
Likewise, the ALJ’s finding that Dr. Toews’ opinion was consistent with the
17
test scores is not supported by substantial evidence. Dr. Toews selectively focused
18
on the normal findings in Dr. Barnard’s and Dr. Marks’ reports. In comparison,
19
even though Plaintiff did not meet the criteria for mild intellectual disability,
20
Dr. Barnard, Dr. Marks, Dr. Mitchell, and Dr. Bowes all agreed that Plaintiff was
21
22
121 AR 429 (citing AR 828).
23
1
markedly limited in his ability to perform within a schedule, learn new tasks, and
2
adapt to changes.122 And Dr. Carl Epp’s testing showed that Plaintiff, even when
3
on ADHD medication, struggled with maintaining attention, hyperactivity, and
4
impulsiveness, and that Plaintiff had “some major problems” with “intelligence and
5
aptitude testing.”123 In summary, the tests scores show that Plaintiff’s mental
6
impairments collectively impact his ability to perform tasks. The ALJ’s finding that
7
Dr. Toews’ opinion was more consistent with Plaintiff’s test scores than
8
Dr. Barnard’s opinion is not a legitimate finding supported by substantial evidence.
9
c. Consistency with the longitudinal record
10
The ALJ’s third reason—that Dr. Barnard’s opinion was inconsistent with
11
the longitudinal record showing Plaintiff to be doing well overall with a stable
12
mood, engaging in activities of daily living, studying for his GED, and looking for
13
work, while Dr. Toews’ opinion was consistent with the longitudinal record—is
14
similarly not a legitimate finding supported by substantial evidence.124
15
Dr. Barnard’s opined limitations were not primarily based on Plaintiff’s mood;
16
instead, they were primarily based on Plaintiff’s borderline intellectual
17
18
122 AR 303, 289, 301, 407–09, 629–30.
19
123 AR 273–86.
20
124 See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (recognizing that it is not
21
legitimate to discount an opinion for a reason that is not responsive to the medical
22
opinion).
23
1
functioning, which was reflected in the abnormal test results. As to Plaintiff’s
2
personal hygiene and chores, Plaintiff often needs reminders to follow through with
3
them, and such activities generally can be done in a short period of time and do not
4
require sustained attention and focus. As to Plaintiff’s GED studies, the record
5
reflects that Plaintiff began taking GED courses in the spring of 2017.125
6
Notwithstanding the assistance of his mental-health counselors and college tutors
7
and his repeated stated desire to obtain a GED and/or be employed, Plaintiff still
8
had not obtained his GED by the time of the second administrative hearing in
9
October 2020, and he had numerous failed employment attempts. These failed
10
attempts are consistent with—rather than inconsistent with—Dr. Barnard’s opined
11
limitations. The ALJ’s finding otherwise is not supported by substantial evidence.
12
d. Consistency with the other medical opinions
13
Finally, the ALJ discounted Dr. Barnard’s opinion because it was
14
inconsistent with the testimony of Dr. Toews, who had the benefit of reviewing the
15
entire record. Whether a medical opinion is consistent with the longitudinal
16
record—including other medical findings and observations—is a factor for the ALJ
17
to consider.126 The ALJ may also consider whether the medical expert met with the
18
19
125 AR 383–87.
20
126 20 C.F.R. § 416.920b(b); Lingenfelter, 504 F.3d at 1042 (recognizing that the
21
ALJ is to consider the consistency of the medical opinion with the record as a whole
22
and assess the amount of relevant evidence that supports the opinion).
23
1
claimant and the extent to which a medical source is “familiar with the other
2
information in [the claimant’s] case record.”127 Here, Dr. Toews reviewed more of
3
the record than Dr. Barnard, but Dr. Barnard examined Plaintiff and also reviewed
4
Dr. Marks’ 2015 opinion. Dr. Toews’ testimony indicates he largely relied on
5
Dr. Barnard’s and Dr. Marks’ opinions—or his interpretation of those opinions and
6
the test results contained therein. The ALJ failed to explain how Dr. Toews’
7
opinion, which was largely a recitation of portions of Dr. Barnard’s and Dr. Marks’
8
test results, was more detailed than Dr. Barnard’s opinion. Dr. Toews’ testimony
9
reveals that he simply reached a different conclusion than Dr. Barnard and
10
Dr. Marks. Yet, Dr. Barnard’s opinion had been reviewed—and agreed with—by
11
Dr. Bowes. And Dr. Marks’ 2015 opinion had been reviewed—and agreed with—by
12
Dr. Mitchell. Likewise, Dr. Veraldi, the expert who testified at the first hearing,
13
opined that Plaintiff was more limited than what Dr. Toews later opined. On this
14
record, the ALJ’s decision to discount Dr. Barnard’s opinion because it was
15
inconsistent with the testimony of Dr. Toews is not a specific and legitimate reason
16
supported by substantial evidence.
17
5. Consequential Error
18
The ALJ erroneously weighed the opinions prepared by Dr. Barnard and
19
Dr. Toews. By discounting Dr. Barnard’s opinion and giving great weight to
20
21
22
127 20 C.F.R. § 416.927(c).
23
1
Dr. Toews’ opinion, the ALJ crafted an RFC that did not include the work-
2
preclusive persistence and pace limitations. This error was consequential.
3
C. Remand for an Award of Benefits.
4
Plaintiff submits a remand for payment of benefits is warranted. The Court
5
agrees.
6
A district court “ordinarily must remand to the agency for further
7
proceedings before directing an award of benefits.”128 The “credit-as-true” rule, on
8
which Plaintiff relies, is a “rare and prophylactic exception to the ordinary remand
9
rule.”129 For the Court to remand for award of benefits, three conditions must be
10
satisfied:
11
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
12
provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
13
discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand.130
14
15 Each of these elements are met. First, the record contains a child
16 psychological examination that indicates Plaintiff’s learning disorder and ADD
17 were present as a youth and caused significant difficulty for Plaintiff at school.
18 Dr. Marks’ and Dr. Barnard’s testing indicate that Plaintiff continues to struggle
19
20
128 Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017).
21
129 Id.
22
130 Garrison, 759 F.3d at 1020.
23
1
markedly due to his impairments. And his inability to obtain a GED over a span of
2
three years along with several failed employment attempts corroborate Plaintiff’s
3
symptom report that he had difficulty performing even routine tasks within a
4
schedule.
5
Second, the ALJ failed to provide legally sufficient reasons for rejecting
6
Plaintiff’s symptom testimony and the medical opinion of Dr. Barnard.
7
Third, per the vocational expert’s testimony, if Plaintiff’s symptom testimony
8
and Dr. Barnard’s medical opinion are credited as tree, Plaintiff is unable to
9
maintain competitive employment.
10
Further administrative proceedings are unnecessary. Moreover, the
11
Commissioner had two opportunities to develop the record and issue an
12
administrative decision. Having consequentially erred on these two occasions, an
13
award of benefits is appropriate.131 Remand for a payment of benefits from the date
14
the Title 16 disability application was filed, December 15, 2015, is appropriate.
15
V. Conclusion
16
Accordingly, IT IS HEREBY ORDERED:
17
1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is
18
GRANTED.
19
20
131 See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (noting that repeated
21
remands may sometimes result in an unfair “heads we win; tails, let’s play again”
22
scenario).
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2. The Commissioner’s Motion for Summary Judgment, ECF No. 20, is
DENIED.
3. The ALJ’s decision is REVERSED, and this matter is REMANDED
to the Commissioner of Social Security for immediate calculation and
award of benefits.
4, The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff.
5. The case shall be CLOSED.
IT ISSO ORDERED. The Clerk’s Office is directed to file this Order and
provide copies to all counsel.
DATED this 14* day of March 2022.
Berd I few.
EDWARD F.SHEA
Senior United States District Judge
ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 41