Contreras v. Kijakazi

1 Sep 20, 2022

2

SEAN F. MCAVOY, CLERK

3

4

5 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

6

7

NANCY C., 1

8 NO: 1:21-CV-3067-LRS

Plaintiff,

9

v. ORDER GRANTING PLAINTIFF’S

10 MOTION FOR SUMMARY

KILOLO KIJAKAZI, JUDGMENT AND DENYING

11 COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR

SECURITY, SUMMARY JUDGMENT

12

Defendant.

13

14 BEFORE THE COURT are the parties’ cross-motions for summary judgment.

15 ECF Nos. 15, 19. This matter was submitted for consideration without oral

16 argument. Plaintiff is represented by attorney D. James Tree. Defendant is

17 represented by Special Assistant United States Attorney Lars J. Nelson. The Court,

18 having reviewed the administrative record and the parties’ briefing, is fully

19 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 15, is

20 granted and Defendant’s Motion, ECF No. 9, is denied.

21

Plaintiff’s last initial is used to protect her privacy.

1 JURISDICTION

2 Plaintiff Nancy C. (Plaintiff), filed for supplemental security income (SSI) on

3 January 10, 2019, and alleged an onset date of April 10, 2012. Tr. 165-74. Benefits

4 were denied initially, Tr. 98-101, and upon reconsideration, Tr. 112-18. Plaintiff

5 appeared at a hearing before an administrative law judge (ALJ) on September 3,

6 2020. Tr. 30-71. On October 8, 2020, the ALJ issued an unfavorable decision, Tr.

7 12-28, and on April 2, 2021, the Appeals Council denied review. Tr. 1-6. The

8 matter is now before this Court pursuant to 42 U.S.C. § 1383(c)(3).

9 BACKGROUND

10 The facts of the case are set forth in the administrative hearing and transcripts,

11 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are

12 therefore only summarized here.

13 Plaintiff was 32 years old at the time of the hearing. Tr. 40. She went to

14 school until the ninth grade. Tr. 40. She was in special education. Tr. 41. She

15 testified that she does not read well. Tr. 40. Plaintiff testified she cannot work

16 because she cannot be around people. Tr. 44. She is scared to be around people.

17 Tr. 44. When she is around people, she has flashbacks to a traumatic event

18 involving her brother. Tr. 44. She has panic attacks when she is around others. Tr.

19 46. She takes medication for PTSD. Tr. 48-49. She also has constant neck pain due

20 to an accident. Tr. 49-50.

21 STANDARD OF REVIEW

1 A district court’s review of a final decision of the Commissioner of Social

2 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

3 limited; the Commissioner’s decision will be disturbed “only if it is not supported by

4 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158

5 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable

6 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and

7 citation omitted). Stated differently, substantial evidence equates to “more than a

8 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted).

9 In determining whether the standard has been satisfied, a reviewing court must

10 consider the entire record as a whole rather than searching for supporting evidence in

11 isolation. Id.

12 In reviewing a denial of benefits, a district court may not substitute its

13 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156

14 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one

15 rational interpretation, [the court] must uphold the ALJ’s findings if they are

16 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674

17 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s

18 decision on account of an error that is harmless.” Id. An error is harmless “where it

19 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115

20 (quotation and citation omitted). The party appealing the ALJ’s decision generally

21

1 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S.

2 396, 409-10 (2009).

3 FIVE-STEP EVALUATION PROCESS

4 A claimant must satisfy two conditions to be considered “disabled” within the

5 meaning of the Social Security Act. First, the claimant must be “unable to engage in

6 any substantial gainful activity by reason of any medically determinable physical or

7 mental impairment which can be expected to result in death or which has lasted or

8 can be expected to last for a continuous period of not less than twelve months.” 42

9 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such

10 severity that he is not only unable to do his previous work[,] but cannot, considering

11 his age, education, and work experience, engage in any other kind of substantial

12 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).

13 The Commissioner has established a five-step sequential analysis to determine

14 whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v).

15 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. §

16 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the

17 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b).

18 If the claimant is not engaged in substantial gainful activity, the analysis

19 proceeds to step two. At this step, the Commissioner considers the severity of the

20 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from

21 “any impairment or combination of impairments which significantly limits [his or

1 her] physical or mental ability to do basic work activities,” the analysis proceeds to

2 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy

3 this severity threshold, however, the Commissioner must find that the claimant is not

4 disabled. 20 C.F.R. § 416.920(c).

5 At step three, the Commissioner compares the claimant’s impairment to

6 severe impairments recognized by the Commissioner to be so severe as to preclude a

7 person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii).

8 If the impairment is as severe or more severe than one of the enumerated

9 impairments, the Commissioner must find the claimant disabled and award benefits.

10 20 C.F.R. § 416.920(d).

11 If the severity of the claimant’s impairment does not meet or exceed the

12 severity of the enumerated impairments, the Commissioner must pause to assess the

13 claimant’s “residual functional capacity.” Residual functional capacity (RFC),

14 defined generally as the claimant’s ability to perform physical and mental work

15 activities on a sustained basis despite his or her limitations, 20 C.F.R. §

16 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis.

17 At step four, the Commissioner considers whether, in view of the claimant’s

18 RFC, the claimant is capable of performing work that he or she has performed in the

19 past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable

20 of performing past relevant work, the Commissioner must find that the claimant is

21

1 not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing

2 such work, the analysis proceeds to step five.

3 At step five, the Commissioner should conclude whether, in view of the

4 claimant’s RFC, the claimant is capable of performing other work in the national

5 economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the

6 Commissioner must also consider vocational factors such as the claimant’s age,

7 education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant

8 is capable of adjusting to other work, the Commissioner must find that the claimant

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

10 adjusting to other work, analysis concludes with a finding that the claimant is

11 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1).

12 The claimant bears the burden of proof at steps one through four above.

13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

14 step five, the burden shifts to the Commissioner to establish that (1) the claimant is

15 capable of performing other work; and (2) such work “exists in significant numbers

16 in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d

17 386, 389 (9th Cir. 2012).

18 A finding of “disabled” does not automatically qualify a claimant for

19 disability benefits. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001.)

20 When there is medical evidence of drug or alcohol addiction, the ALJ must

21 determine whether the drug or alcohol addiction is a material factor contributing to

1 the disability. 20 C.F.R. § 416.935(a). It is the claimant’s burden to prove

2 substance addiction is not a contributing factor material to her disability. Parra v.

3 Astrue, 481 F.3d 742, 748 (9th Cir. 2007).

4 If drug or alcohol addiction is a material factor contributing to the disability,

5 the ALJ must evaluate which of the current physical and mental limitations would

6 remain if the claimant stopped using drugs or alcohol, then determine whether any or

7 all of the remaining limitations would be disabling. 20 C.F.R. § 416.935(b)(2).

8 ALJ’S FINDINGS

9 At step one, the ALJ found Plaintiff did not engage in substantial gainful

10 activity since January 10, 2019, the application date. Tr. 17. At step two, the ALJ

11 found that Plaintiff has the following severe impairments: history of chronic

12 cervical strain, posttraumatic stress disorder, depressive disorder, and history of

13 substance abuse. Tr. 17. At step three, the ALJ found that Plaintiff does not have an

14 impairment that meets or medically equals the severity of a listed impairment. Tr.

15 17.

16 The ALJ then found that Plaintiff has the residual functional capacity to

17 perform medium work with the following additional limitations:

18 she can lift and or carry 50 pounds occasionally and 25 pounds

frequently; she can stand and walk 6 hours in an 8-hour workday; she

19 can sit 6 hours in an 8-hour workday; she can frequently climb ramps,

stairs, ladders, ropes, and scaffolds; she can frequently balance, kneel,

20 crouch and occasionally stoop and crawl; she can frequently lift

overhead with the bilateral upper extremities; she is limited to

21 unskilled work that would be simple, routine and repetitive tasks in

1 work related changes; any changes that might occur would be

gradually introduced and/or explained; she is limited to no strict time

2 or strict fast paces quotas; and she is limited to occasional superficial

interaction with others, superficial meaning no sales, no arbitration,

3 negotiation, and no requirement to manage others.

4 Tr. 19.

5 At step four, the ALJ found that Plaintiff is capable of performing past

6 relevant work. Tr. 23. Alternatively, at step five, after considering the testimony of

7 a vocational expert and Plaintiff’s age, education, work experience, and residual

8 functional capacity, the ALJ found that there are jobs that exist in significant

9 numbers in the national economy that Plaintiff can perform such as industrial

10 cleaner, dining room attendant, and housekeeper. Tr. 24. Thus, the ALJ found

11 Plaintiff has not been disabled as defined in the Social Security Act since January

12 10, 2019, the date the application was filed. Tr. 24.

13 ISSUES

14 Plaintiff seeks judicial review of the Commissioner’s final decision denying

15 supplemental security income under Title XVI of the Social Security Act. ECF No.

16 15. Plaintiff raises the following issues for review:

17 1. Whether the ALJ properly considered Plaintiff’s symptom testimony;

18 2. Whether the ALJ properly considered the medical opinion evidence;

19 3. Whether the ALJ properly found Plaintiff has past relevant work; and

20 4. Whether the ALJ should have assessed Plaintiff’s literacy.

21 ECF No. 15 at 2.

1 DISCUSSION

2 A. Symptom Testimony

3 Plaintiff contends the ALJ erred by improperly assessing her symptom

4 testimony. ECF No. 15 at 6-13. An ALJ engages in a two-step analysis to

5 determine whether a claimant’s testimony regarding subjective pain or symptoms is

6 credible. “First, the ALJ must determine whether there is objective medical

7 evidence of an underlying impairment which could reasonably be expected to

8 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (internal

9 quotation marks omitted). “The claimant is not required to show that her

10 impairment could reasonably be expected to cause the severity of the symptom she

11 has alleged; she need only show that it could reasonably have caused some degree of

12 the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

13 quotation marks omitted).

14 Second, “[i]f the claimant meets the first test and there is no evidence of

15 malingering, the ALJ can only reject the claimant’s testimony about the severity of

16 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

17 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal

18 citations and quotations omitted). “General findings are insufficient; rather, the ALJ

19 must identify what testimony is not credible and what evidence undermines the

20 claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

21 1995)); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ

1 must make a credibility determination with findings sufficiently specific to permit

2 the court to conclude that the ALJ did not arbitrarily discredit claimant’s

3 testimony.”). “The clear and convincing [evidence] standard is the most demanding

4 required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir.

5 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir.

6 2002)). In assessing a claimant’s symptom complaints, the ALJ may consider, inter

7 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the

8 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s

9 daily living activities; (4) the claimant’s work record; and (5) testimony from

10 physicians or third parties concerning the nature, severity, and effect of the

11 claimant’s condition. Thomas, 278 F.3d at 958-59.

12 The ALJ found that Plaintiff’s impairments could reasonably be expected to

13 cause some of her alleged symptoms, but that Plaintiff’s statements concerning the

14 intensity, persistence, and limiting effects of those symptoms are not entirely

15 consistent with the evidence in the record. Tr. 20. Plaintiff contends the ALJ’s

16 reasons are insufficient.

17 The ALJ found that Plaintiff’s mental health complaints are out of proportion

18 to the objective medical evidence. Tr. 20-21. An ALJ may not discredit a

19 claimant’s pain testimony and deny benefits solely because the degree of pain

20 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261

21 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir.

1 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical

2 evidence is a relevant factor in determining the severity of a claimant’s pain and its

3 disabling effects. Rollins, 261 F.3d at 857. Minimal objective evidence is a factor

4 which may be relied upon in discrediting a claimant’s testimony, although it may not

5 be the only factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

6 The ALJ’s reason is followed by bullet points noting purported examples of

7 mental health complaints out of proportion to the objective medical evidence.

8 However, even if all of these examples illustrate that the objective medical evidence

9 does not support Plaintiff’s mental health complaints, this reason cannot stand alone

10 to discredit Plaintiff’s symptom claims. Id. The ALJ gave no other reason for

11 discrediting the degree of mental health limitations alleged, so the ALJ’s reasoning

12 is legally insufficient.

13 Next, the ALJ found that Plaintiff’s physical complaints are consistent with a

14 limitation to medium exertion. Tr. 21-22. However, the ALJ’s reasoning is unclear.

15 If the ALJ is crediting Plaintiff’s testimony about her physical complaints, then it

16 suggests those complaints are credible and this is not a reason for discounting her

17 symptom claims. If the ALJ is suggesting the evidence cited is inconsistent with her

18 symptom claims, the reason is insufficient because inconsistency with objective

19 evidence is not by itself a legally sufficient reason for rejecting Plaintiff’s

20 complaints. In either case, the ALJ’s discussion of Plaintiff’s physical health

21 complaints is not specific, clear, and convincing.

1 Defendant argues the ALJ: (1) juxtaposed Plaintiff’s activities with her

2 symptom claims; (2) documented inconsistent statements concerning drug and

3 substance use; (3) found exam findings undermined Plaintiff’s subjective

4 complaints; and (4) cited Plaintiff’s lack of treatment. ECF No. 19 at 10-13. The

5 Court is constrained to review only those reasons asserted by the ALJ. Sec. Exch.

6 Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947); Pinto v. Massanari, 249 F.3d

7 840, 847-48 (9th Cir. 2001). Here, although defendant extracted “reasons” from a

8 few “howevers” and “yets” in the ALJ’s recitation of evidence, the ALJ’s analysis is

9 inadequate to constitute specific, clear, and convincing reasons supported by

10 substantial evidence. While all reasons discussed by the ALJ constitute “grounds

11 invoked by the agency,” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), or

12 “reasons the ALJ assert[ed],” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.

13 2003), the ALJ’s decision must still contain specific reasons for the weight given to

14 the claimant’s symptoms, be consistent with and supported by the evidence which

15 are clearly articulated so the individual and any subsequent reviewer can assess how

16 the adjudicator evaluated the individual’s symptoms. Social Security Ruling 16-3p,

17 2016 WL 1119029, at *9 (effective March 16, 2016). The ALJ “must specifically

18 identify the testimony she or he finds not to be credible and must explain what

19 evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208

20 (9th Cir. 2001).

21

1 Here, the only specific reason stated for discounting Plaintiff’s symptom

2 claims is that they are not supported by the evidence. Tr. 20. Even if substantial

3 evidence supports this finding, as noted supra, an ALJ may not discredit a

4 claimant’s pain testimony and deny benefits solely because the degree of pain

5 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261

6 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir.

7 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Because a lack of

8 supporting objective evidence cannot be the only reason for rejecting a claimant’s

9 symptom claims, the ALJ’s reasoning is inadequate. No other legally sufficient

10 reason for discrediting Plaintiff’s symptom testimony is cited by the ALJ. Thus, the

11 ALJ failed to provide specific, clear, and convincing reasons for discrediting

12 Plaintiff’s symptom claims.

13 B. Medical Opinions

14 Plaintiff contends the ALJ failed to properly consider the opinions of Tasmyn

15 Bowes, Psy.D., and William Drenguis, M.D. ECF No. 15 at 13-19.

16 For claims filed on or after March 27, 2017, the regulations provide that the

17 ALJ will no longer “give any specific evidentiary weight…to any medical

18 opinion(s)…” Revisions to Rules Regarding the Evaluation of Medical Evidence,

19 2017 WL 168819, 82 Fed. Reg. 5867-88 (Jan. 18, 2017); 20 C.F.R. § 416.920c.2

20

2 Plaintiff asserts the “specific and legitimate” standard continues to apply despite

21

the new regulations; Defendant argues to the contrary. ECF No. 15 at 13-15; ECF

1 Instead, an ALJ must consider and evaluate the persuasiveness of all medical

2 opinions or prior administrative medical findings from medical sources. 20 C.F.R. §

3 416.920c(a) and (b). Supportability and consistency are the most important factors

4 in evaluating the persuasiveness of medical opinions and prior administrative

5 findings, and therefore the ALJ is required to explain how both factors were

6 considered. 20 C.F.R. § 416.920c(b)(2). The ALJ may, but is not required, to

7 explain how other factors were considered. 20 C.F.R. § 416.920c(b)(2); see 20

8 C.F.R. § 416.920c(c)(1)-(5).

9 1. William Drenguis, M.D.

10 Dr. Drenguis completed a physical evaluation in August 2019 and diagnosed

11 chronic neck pain with history of previous motor vehicle accident. Tr. 286-90. On

12 examination, Dr. Drenguis found tenderness with muscle spasm and decreased range

13 No. 19 at 14-16. A recent Ninth Circuit decision settles the matter: “While we

14 agree with the government that the ‘specific and legitimate’ standard is clearly

15 irreconcilable with the 2017 regulations, the extent of the claimant’s relationship

16 with the medical provider - what we will refer to as ‘relationship factors’ - remains

17 relevant under the new regulations.” Woods v. Kijakazi, 32 F.4th 785, 790 (9th

18 Cir. 2022). The court goes on to note the regulations provide, “We may, but are

19 not required to, explain how we considered the [relationship] factors ... when we

20 articulate how we consider medical opinions . . . in your case record.” Id. at 791-92

21 (quoting 20 C.F.R. § 404.1520c(b)(2) (emphasis added)).

1 of motion but no radicular findings and concluded Plaintiff’s symptoms are most

2 consistent with a chronic cervical sprain. Tr. 289. Dr. Drenguis assessed no

3 limitations on standing, walking, or sitting, lifting, and carrying was limited to 50

4 pounds occasionally and 25 pounds frequently, she could frequently climb, balance,

5 kneel, and crouch but only occasionally stoop and crawl due to chronic cervical

6 sprain. Tr. 289. Dr. Drenguis found Plaintiff could frequently reach and had no

7 limits on handling, fingering, or feeling, and no environmental limitations were

8 assessed. Tr. 289.

9 The ALJ found Dr. Drenguis’ opinion to be persuasive and consistent with

10 exam findings. Tr. 22. The ALJ noted some tenderness and reduced range of

11 motion was reported, but that Plaintiff’s exam findings were otherwise normal,

12 including full strength of the upper and lower extremities, normal gain, and intact

13 sensations. Tr. 22, 289. The ALJ concluded the exam findings are consistent with a

14 limitation to medium exertion activities. Tr. 22.

15 Plaintiff argues that despite finding Dr. Drenguis’ opinion to be persuasive,

16 the ALJ failed to include a limitation to frequent reaching in the RFC. ECF No. 15

17 at 19. Plaintiff contends that two of the three past relevant work jobs identified at

18 step four and that one of the three jobs additional jobs identified at step five as

19 consistent with the RFC require constant reaching. ECF No. 15 at 19 (citing Tr. 23-

20 24, DOT #s 529.686-014, 920.687-126, 311.677-018). Defendant argues the error

21 is harmless because: (1) the ALJ found the RFC is consistent with past relevant work

1 as actually performed; and (2) there are still a sufficient number of jobs available in

2 the national economy that Plaintiff can perform. ECF No. 19 at 16. Nonetheless,

3 because this matter is remanded on other grounds, the ALJ should reconsider Dr.

4 Drenguis’ opinion and ensure that all limitations assessed are either included in the

5 RFC or are properly rejected. See Vincent, 739 F.2d at 1394.

6 2. Tasmyn Bowes, Psy.D.

7 Dr. Bowes completed a Psychological/Psychiatric Evaluation form in

8 November 2018 and diagnosed PTSD, persistent depressive disorder,

9 methamphetamine use disorder, and alcohol use disorder. Tr. 237-42. Dr. Bowes

10 assessed five marked and five severe limitations, including severe limitations in the

11 ability to understand, remember, and persist in tasks by following detailed direction;

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

13 within customary tolerances without special supervision; communicate and perform

14 effectively in a work setting; maintain appropriate behavior in a work setting; and

15 complete a normal work day and work week without interruptions from

16 psychologically based symptoms. Tr. 240.

17 The ALJ found Dr. Bowes’ opinion to be unpersuasive because it is

18 unsupported. Tr. 22. The ALJ observed that Dr. Bowes reviewed no records, and

19 that Plaintiff was not engaged in any mental health treatment or taking any

20 medication. Tr. 22. As Plaintiff observes, there were no records in this case before

21 Dr. Bowes’ exam. ECF No. 15 at 15. Defendant argues that this undermines

1 Plaintiff’s contention that she has been disabled since 2012. ECF No. 19 at 18; Tr.

2 165. However, “the fact that claimant may be one of millions of people who did not

3 seek treatment for a mental disorder until late in the day is not a substantial basis on

4 which to conclude that [a doctor’s] assessment of claimant’s condition is

5 inaccurate.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). The lack of

6 previous records to review is not a legitimate reason to find Dr. Bowes’ opinion

7 unsupported.

8 Dr. Bowes conducted her own examination and the ALJ should have analyzed

9 the supportability of the opinion in that context. The ALJ noted some findings such

10 as Plaintiff was cooperative and displayed normal memory, abstract thought, insight

11 and judgment. Tr. 22, 241. However, the ALJ failed to comment on negative

12 findings, like Plaintiff’s grooming was marginal and disheveled, her speech was

13 scattered, she presented as highly anxious, shaky, overwhelmed, and tearful, her

14 mood was dysphoric and affect was somewhat labile, her though process was

15 scattered, and her perception and concentration were not within normal limits. Tr.

16 22, 241. The ALJ failed to address these factors. Tr. 22. If the ALJ concluded

17 these findings do not support Dr. Bowes’ opinion, the ALJ should have explained

18 the basis of this conclusion. Without deciding that Dr. Bowes’ opinion is or is not

19 supported by her findings, the court concludes the ALJ’s supportability analysis is

20 insufficient.

21

1 Furthermore, the ALJ’s consideration of substance use is unclear and not

2 supported by substantial evidence. Tr. 22. The ALJ commented that, “Dr. Bowes

3 noted the claimant as anxious and distracted throughout the evaluation. However,

4 she admitted to recent methamphetamine use as well as use of marijuana and

5 alcohol.” Tr. 22. Plaintiff actually reported her last meth use was “a few months

6 ago” and indicated that she drinks and uses pot. Tr. 238. If the ALJ intended to

7 suggest that Plaintiff’s anxiousness and distraction was caused by substance use, this

8 is not supported by the record. Dr. Bowes indicated that the effects on basic work

9 activities are not primarily the result of a substance use disorder, and that 60 days of

10 sobriety would not change her assessment of limitations, although Plaintiff needs

11 dual diagnosis treatment. Tr. 240. The ALJ’s presumed conclusion is not supported

12 without further explanation.

13 With regard to consistency, the ALJ found “these factors” inconsistent with

14 marked to severe limitations in functioning assessed by Dr. Bowes. Tr. 22.

15 However, the ALJ did not explain how the findings mentioned are inconsistent with

16 Dr. Bowes’ assessment. Tr. 22. As discussed above, the ALJ’s comments

17 regarding Dr. Bowes’ mental status exam findings are insufficiently explained. The

18 ALJ also commented that Plaintiff has some social limitations but noted that she has

19 friends, shops for groceries, uses public transportation, and was cooperative. Tr. 22,

20 189, 238, 299. An ALJ may discount a medical source opinion to the extent it

21 conflicts with the claimant’s daily activities. Morgan v. Comm’r of Soc. Sec.

1 Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). As defendant points out, the ALJ

2 considered Plaintiff’s daily activities more specifically at step three. ECF No. 19 at

3 19; Tr. 18. The ALJ noted that Plaintiff endorsed difficulty being around people, Tr.

4 186, but talks to her children at least three times per week, shops in stores, and

5 stayed with four to five different friends over the past few years. Tr. 18, 188-89,

6 299. However, the ALJ did not address the qualifications Plaintiff noted regarding

7 those activities, such as shopping at times to avoid others, and that she does not get

8 along with others because she fears they want to hurt her. Tr. 189, 191. The

9 evidence cited by the ALJ does not rise to the level of substantial evidence that Dr.

10 Bowes’ opinion is inconsistent. This is not a sufficient basis, without more, for

11 rejecting Dr. Bowes’ opinion.

12 C. Past Relevant Work

13 Plaintiff contends the ALJ improperly found Plaintiff has past relevant work.

14 ECF No. 15 at 4-6. At step four, the ALJ considers plaintiff’s ability to return to

15 past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). Past relevant work is work that

16 was done in the last fifteen years, lasted long enough for the claimant to learn it, and

17 was substantial gainful activity. 20 C.F.R. § 426.950(b)(1). Generally, if a claimant

18 works for substantial earnings as described in the regulations, the work is found to

19 be substantial gainful activity. 20 C.F.R. § 416.974(a). Plaintiff contends that

20 because the record is unclear as to how many months she worked in certain years,

21 her earnings should be averaged over the period of months for which she earned

1 disability coverage, which, according to Plaintiff, is six to 12 months per year,

2 depending on the year. ECF No. 15 at 4. According to Plaintiff’s calculations, she

3 had no past relevant work because she did not have substantial gainful activity in

4 any year. ECF No. 15 at 5; Tr. 179-83. Defendant argues Plaintiff’s calculation is

5 not supported by the regulations and that her earnings could be attributed to any one-

6 month period in which she earned disability coverage. ECF No. 19 at 3-4.

7 The court need not decide this issue. Even if the ALJ’s finding regarding

8 substantial gainful activity was based on error, the ALJ’s made an alternative finding

9 at step five. Robbins, 466 F.3d at 885 (holding that error that is inconsequential to

10 the ultimate nondisability determination is harmless error). Tommasetti v. Astrue,

11 533 F.3d 1035, 1042 -1043 (9th Cir. 2008). However, due to other errors made by

12 the ALJ and the necessity to reconsider the sequential evaluation, step four must also

13 be reconsidered on remand. The ALJ should ensure any finding at step four that

14 Plaintiff is capable of performing past relevant work is based on finding about

15 substantial gainful activity according to the applicable law and regulations and

16 supported by substantial evidence.

17 D. Literacy

18 Plaintiff contends the ALJ failed to consider Plaintiff’s literacy at step five.

19 ECF No. 15 at 19. At step five, the ALJ considers the claimant’s RFC, age,

20 education, and work experience to see if other work is available. 20 C.F.R. §§

21 416.920(a)(v), 416.960(c)(1). Education is typically evaluated by using the

1 numerical grade level completed in school unless there is evidence that the

2 numerical grade level does not represent the claimant’s actual abilities. 20 C.F.R. §

3 416.964(b). The ALJ found that Plaintiff has a “limited education” (Tr. 23),

4 meaning having “ability in reasoning, arithmetic, and language skills, but not enough

5 to allow a person with these educational qualifications to do most of the more

6 complex job duties needed in semi-skilled or skilled jobs. We generally consider

7 that a 7th grade through the 11th grade level of formal education is a limited

8 education.” 20 C.F.R. § 416.964(b)(3). The ALJ noted that Plaintiff testified her

9 “[r]eading is not good,” she can read “The Cat in the Hat,” and would have difficulty

10 reading a newspaper (Tr. 20) but did not otherwise discuss her literacy.

11 Plaintiff suggests the evidence contradicts the assumption of literacy based on

12 her education. ECF No. 15 at 19. “Illiteracy means an inability to read or write.

13 We consider someone illiterate if the person cannot read or write a simple message

14 such as instructions or inventory lists even though the person can sign his or her

15 name. Generally, an illiterate person has had little or no formal schooling.” 20

16 C.F.R. § 416.964(b)(1); see Social Security Ruling 20-01p, 2020 WL 1285114

17 (effective March 9, 2020). Plaintiff cites her testimony that she “went into 9th

18 grade” in school (Tr. 40), was in special education (Tr. 41), could not read a

19 newspaper article (Tr. 41), and said she could read “Cat in the Hat” children’s book

20 but “I make up my own story” (Tr. 41). Plaintiff concludes this is evidence that she

21 is illiterate. ECF No. 15 at 20.

1 Defendant observesthe ALJ’s finding is consistent with Plaintiffs testimony

that she attended school until ninth grade. ECF No. 19 at 6 (citing Tr. 195). Since

this matter is remanded on other grounds, and without deciding whether the ALJ

4|| erred on this issue, the court concludes the ALJ shall reconsider and make a finding

regarding Plaintiffs literacy as part of the step five finding (if such finding is

6|| necessary) on remand.

7 CONCLUSION

8 Having reviewed the record andthe ALJ’s findings, this Court concludes the

ALJ’s decision is not supported by substantial evidence and free of harm ful legal

error. Accordingly,

11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED.

12 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED.

13 3. This case is REVERSED and REMANDED for further administrative

proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. §

405(g).

16 IT ISSO ORDERED. The District Court Clerk is directed to enter this

Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the

18 || file shall be CLOSED.

19 DATED September 20, 2022.

21 "LONKYR.SUKO

Senior United States District Judge