Opinion
Case No. CV 19-1066-JPR
04-15-2020
ALISA ANN A., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security supplemental security income benefits ("SSI"). The parties consented to the jurisdiction of the undersigned under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Submission, filed December 4, 2019, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is reversed and this matter is remanded for further proceedings.
II. BACKGROUND
Plaintiff was born in 1972. (Administrative Record ("AR") 221.) She completed high school in juvenile hall. (AR 243, 363.) She never worked regularly. (AR 257-60.) On September 30, 2015, she applied for SSI, alleging that she had been unable to work since January 1, 1986, because of bipolar disorder, depression, and schizophrenia. (AR 115, 242.) After Plaintiff's application and reconsideration of it were denied (AR 145-46, 154-55), she requested a hearing before an Administrative Law Judge (AR 161-63). A hearing was held on August 25, 2017, at which Plaintiff, represented by counsel, testified, as did a vocational expert. (AR 32-89.) In a written decision issued December 8, 2017, the ALJ determined that she was not disabled. (AR 12-25.) On December 11, 2018, the Appeals Council denied her request for review. (AR 1-3.) This action followed.
Plaintiff applied for Social Security benefits in 2012 (see AR 93); her claim was denied by an Administrative Law Judge on February 27, 2014. (AR 90-103.) The ALJ here found that Plaintiff had rebutted the presumption of continuing nondisability, see Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), because the regulations "for evaluating mental disorders" had changed since the prior decision. (AR 18.)
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is "more than a mere scintilla but less than a preponderance." Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). "[W]hatever the meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
An ALJ follows a five-step sequential evaluation process to assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 416.920(a)(4)(ii) & (c).
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 416.920(a)(4)(iii) & (d).
If the claimant's impairment or combination of impairments does not meet or equal one in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform her past work; if so, she is not disabled and the claim must be denied. § 416.920(a)(4)(iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant's RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)).
If that happens or if the claimant has no past relevant work, the Commissioner bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy, the fifth and final step of the sequential analysis. §§ 416.920(a)(4)(v), 416.960(b).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 30, 2015, the application date. (AR 18.) At step two, he determined that she had the severe impairments of "bipolar affective disorder; personality disorder; [and] mood disorder." (Id.)
At step three, he concluded that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 19-20.) At step four, he found that Plaintiff had the RFC to perform
a full range of work at all exertional levels but with the following nonexertional limitations. She: is able to perform work consisting of simple, 1-2 step tasks at reasoning level 1; can have no public contact; and can
have occasional contact with supervisors and coworkers.(AR 20.) Because Plaintiff had no past relevant work, the ALJ continued to step five. (AR 23.)
At that step, considering Plaintiff's age, education, work experience, RFC, and the VE's testimony, he found that Plaintiff could perform several jobs existing in significant numbers in the national economy. (AR 23-24.) Accordingly, he found her not disabled. (Id.) V. DISCUSSION
In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are "Officers of the United States" and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 32-52, 319-19); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App'x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019).
Plaintiff contends that the ALJ erred in assessing her RFC and in evaluating her subjective symptom statements. (J. Stip. at 3-6, 8-12, 16-17.) For the reasons discussed below, reversal is necessary.
A. The ALJ Erred in Assessing Plaintiff's RFC
Plaintiff argues that the ALJ improperly relied on the opinions of consulting psychiatrist Stephen Simonian and state-agency psychological consultant Ralph Mertens, "cherry-pick[ing]" from their opinions without explanation to reach a conclusion that had "no basis in the record." (Id. at 3-4.) She also contends that the ALJ failed to include her limitations in maintaining concentration, persistence, and pace in his hypothetical to the VE. (Id. at 4.)
As explained below, the ALJ failed to explain why, despite giving "great weight" to Dr. Simonian's opinion, he did not incorporate the doctor's finding of marked limitation in social interaction with coworkers and supervisors into Plaintiff's RFC but credited that same finding as to the public by barring her from any contact with them. Nor did the ALJ reconcile the inconsistencies between Dr. Simonian's opinion and that of Dr. Jacob Tendler, both of which he gave "great weight."
Dr. Tendler appears to specialize in psychiatry because his electronic signature includes a specialty code of 37. (See AR 134); Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004, (May 5, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004.
1. Relevant background
a. Plaintiff's treating doctors
Plaintiff was treated on and off from September 12, 2011, through May 21, 2014, at a mental-health clinic. (AR 320-54.) Her initial assessment describes her chief complaints as "insomnia, anxiety, . . . irritab[ility], cutting from age 12, burning self with cigarettes, moody, angry, sad, frustrated, needy, hates to be alone, no purpose — does not know what she is here for, borderline . . . self-[destructive], but now wants to try and take medication." (AR 320.) She reported having antisocial personality disorder and said she did not like to take medication. (Id.) As for psychiatric history, she claimed that on Halloween 2010, she cut herself with a knife because she was angry. (Id.) She also reported a suicide attempt in 1992, in which she took over-the-counter sleeping pills, was hospitalized for three days, and jumped out a second-floor window to escape. (Id.) As for psychosocial history, Plaintiff reported that her mother's boyfriend molested her at age nine, and she was raped at age 14 and kidnapped. (AR 322.) She was in and out of juvenile hall from age 14 to 18 and was in custody several times as an adult. (Id.) She was on probation at the time of the 2011 assessment. (Id.)
Evaluators found impaired intellectual functioning and judgment and a below-average fund of knowledge. (AR 323.) Her insight was severely impaired and her mood was irritable. (Id.) Her memory was unimpaired and her concentration intact. (Id.) As for behavioral disturbances, she was described as aggressive, uncooperative, demanding, demeaning, belligerent, violent, destructive, self-destructive, manipulative, and antisocial, and she had poor impulse control and "excessive/inappropriate display of anger." (Id.) The examiner added the notation, "antisocial and dangerous." (Id.) Her principal diagnosis was antisocial and borderline personality disorders, with a secondary diagnosis of mood disorder not specified and malingering. (AR 324.) The examiner found her primary problems to be educational and occupational and gave her a Global Assessment of Functioning score of 60. (Id.) He noted that she "likely wants SSI." (AR 323.)
GAF scores assess a person's overall psychological functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). A GAF score between 51 to 60 describes "moderate symptoms" or any moderate difficulty in social, occupational, or school functioning. Garrison v. Colvin, 759 F.3d 995, 1023 n.4 (9th Cir. 2014). The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score "does not have a direct correlation to the severity requirements in our mental disorders listings"), and the most recent edition of the DSM "dropped" the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice, DSM-V at 16 (5th ed. 2013). Because GAF scores continue to be included in claimant medical records, however, the Social Security Administration has clarified that they are "medical opinion evidence under 20 C.F.R. § . . . 416.927(a)(2) if they come from an acceptable medical source." Wellington v. Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017) (citation omitted).
The few treatment notes in the record begin on October 31, 2012, and are largely illegible but appear to say that Plaintiff had stopped coming to appointments. (See AR 354.) She reported past use of crack cocaine but said she had been sober for three years as of October 2012. (Id.) The notes indicate that she needed medication and therapy, could not sleep, and was hearing voices. (Id.) She missed her November appointment, and her next visit was January 2, 2013. (AR 351-52.) She had been prescribed Lithium and Abilify, but poor medication compliance was noted. (AR 351.) On January 30, 2013, Plaintiff complained of seeing flashes and hearing dead people talking to her, as well as mood swings and depression. (AR 350.) Because she said Abilify made her hyperactive and restless, it was discontinued and she was prescribed Risperidone. (Id.) She missed appointments on November 14, 2012, March 20, June 26, and September 11, 2013, and February 5, 2014. (See AR 325, 344-51.)
"Lithium is used as a mood stabilizer, and is indicated for the treatment of manic episodes and maintenance of bipolar disorder." See Lithium carbonate, U.S. Nat'l Libr. of Med., https://pubchem.ncbi.nlm.nih.gov/compound/Lithium-carbonate (last visited Apr. 13, 2020).
Abilify is the brand name for aripiprazole and "is indicated for manic and mixed episodes associated with bipolar I disorder, irritability associated with autism spectrum disorder, . . . and as an adjunctive treatment of major depressive disorder." See Aripiprazole, U.S. Nat'l Libr. of Med., https://pubchem.ncbi.nlm.nih.gov/compound/60795#section=Drug-Indication (last visited Apr. 13, 2020).
"Risperidone is indicated for the treatment of schizophrenia, acute manic or mixed episodes associated with Bipolar I Disorder, and irritability associated with autistic disorder." See Risperidone, U.S. Nat'l Libr. of Med., https://pubchem.ncbi.nlm.nih.gov/compound/5073#section=Drug-and-Medication-Information (last visited Apr. 13, 2020).
In progress notes from September 2013 to May 2014, she reported goals of taking her medications, staying sober, and using her coping skills. (AR 325-32.) She felt disbelieved by her psychiatrist about medication compliance. (AR 329.) As to cutting herself, she was "very aware of the intention to treat herself with care and that not-cutting will express that intention." (Id.) During this period, she made "some progress" in employing coping skills and appeared to be "sharing more and allowing deeper discussion of barriers and coping." (AR 329-32.)
b. Examiners and reviewers
Dr. Simonian performed a complete psychiatric evaluation of Plaintiff on March 3, 2016. (AR 355-60.) She had not seen a psychiatrist for five months and was not taking medication because of "insurance problems." (AR 356.) She denied a history of drug or alcohol abuse but had been psychiatrically hospitalized several times. (Id.) Dr. Simonian found Plaintiff "alert and oriented," with normal but rather fast speech. (AR 357.) Her mood was labile, described as normal but at times irritable. (Id.) Her arms showed evidence of cutting. (Id.)
Dr. Simonian diagnosed her with bipolar affective disorder in partial remission, personality disorder not otherwise specified with borderline personality features, and moderate psychological stressors. (AR 358.) He gave her a GAF score of 50. (Id.) He assessed her ability to understand simple one-or two-step job instructions as "not limited." (AR 359.) He found her "moderately limited" in her ability to follow detailed and complex instructions, maintain concentration and attention for a period of time, adapt to the stresses common to a normal work environment, maintain regular attendance in the workplace and perform work activities on a consistent basis, and perform work activities without special or additional supervision. (Id.) He determined that her ability to "relate and interact with supervisors, co-workers, and the public is markedly limited." (Id.)
A GAF score of 41 to 50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000).
Dr. Mertens reviewed the record on May 12, 2016. (AR 119-27.) He assessed her statements as "partially consistent" with the file evidence and concluded that "[w]hile the evidence supports some functional limitations, it does not support complete inability to work." (AR 122.)
Dr. Mertens weighed Dr. Simonian's opinion and found that it was "grossly consistent" but "overestimate[d] marked limitation dealing [with] others." (Id.) He explained that she "clearly demonstrates distress, but interacts reasonably well during documented contacts"; he recommended limited social contact but found no "marked disab[ility]" in that area. (Id.)
He noted moderate limitation in most areas, including her ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or in proximity to others without being distracted by them, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (AR 123-24.) Dr. Mertens noted that an undated function report reflected that she was "personal care independent," prepared simple meals, and completed household chores. (AR 124; see AR 248-56.) She "walk[ed], use[d] public transportation, shop[ped], and manage[d] her own finances unassisted." (AR 124.) She did not like to spend time with others and required reminders for personal hygiene, medication management, and appointments. (Id.) She reported problems with memory, task completion, concentration, understanding, following instructions, and getting along with others. (Id.) She could follow spoken or written instructions, but her stress management was poor and she coped by cutting herself. (Id.) According to Dr. Mertens:
[A] preponderance of the evidence contained in [the] file suggests that [Plaintiff] is capable to meet the basic mental and emotional demands of competitive, renumerative, unskilled work, including the abilities to do the following on a sustained basis in a work setting with low social contact:
(AR 125.)A. Understand, remember, carry out at least simple instructions.
B. Make simple work related decisions and abide by a schedule.
C. Respond appropriately to supervisors, coworkers, and social interactions in a work setting with reduced social contact.
D. Deal with at least minor changes in work routines.
Dr. Tendler reviewed Plaintiff's file on July 25, 2016, and found medically determinable mental impairments of bipolar and personality disorder but "less than significant limitations." (AR 134; see AR 133-41.) He found Dr. Simonian's opinion "more limiting than warranted based on objective evidence in exam and reported functioning" and gave it "other than great weight." (AR 134.) He concluded that Plaintiff's impairments could reasonably be expected to produce some of the symptoms alleged, but her statements concerning the intensity, persistence, and limiting effects of those symptoms were only "partially consistent." (Id.)
He opined that she should not be expected to memorize or understand detailed instructions but could "understand, remember, and carry out a two-step command involving simple instructions." (AR 137.) He explained that she could concentrate and maintain persistence on simple tasks and would be able to have "extended periods of concentration and attention greater than 2-4 hour segments." (AR 138.) She could "maintain attendance and complete a normal workweek and maintain pace with occasional absences." (Id.) As to social interaction, he found that she was "[s]ocially available for superficial interactions," could "tolerate the minimum social demands of simple-task settings," and was "[a]ble to relate to coworkers [and] supervisors but would have difficulty relating to the public on a regular basis." (Id.) Finally, as to adaptation limitations, he explained that she could "maintain an acceptable level of attendance" and "adequately adapt to changes of routine, and to simple situations, not calling for rapid or extensive changes in work tasks or procedures." (AR 139.)
2. Applicable law
Three types of physicians may offer opinions in Social Security cases: those who directly treated the plaintiff, those who examined but did not treat the plaintiff, and those who did neither. Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than an examining physician's, and an examining physician's opinion is generally entitled to more weight than a nonexamining physician's. Id.
For claims filed on or after March 27, 2017, the rules in § 416.920c (not § 416.927) apply. See § 416.920c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). The new regulations provide that the Social Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." § 416.920c(a). Thus, the new regulations eliminate the term "treating source" as well as what is customarily known as the treating-source or treating-physician rule. See § 416.920c. Plaintiff's claim was filed before March 27, 2017, and the Court therefore analyzes it under the treating-source rule in § 416.927.
When a treating or examining physician's opinion is not contradicted by other evidence in the record, it may be rejected only for a "clear and convincing" reason. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When a treating or examining physician's opinion is contradicted, the ALJ must provide only a "specific and legitimate reason" for discounting it. Id. The weight given an examining physician's opinion, moreover, depends on whether it is consistent with the record and accompanied by adequate explanation, among other things. § 416.927(c)(3)-(6). Furthermore, "[t]he ALJ need not accept the opinion of any physician . . . if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
The Court must consider the ALJ's decision in the context of "the entire record as a whole," and if the "'evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).
3. Analysis
The ALJ gave "great weight" to the opinions of Drs. Simonian and Tendler and "moderate weight" to Dr. Mertens's. (AR 21-23.) An ALJ is tasked with "resolv[ing] conflicts in the testimony" and "ambiguities in the record." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Nevertheless, the ALJ here gave no explanation for apparently crediting only part of Dr. Simonian's opinion and did not reconcile the differences between the two opinions to which he gave "great weight." See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (ALJ erred when he did not explicitly reject examining psychologist's opinion or set forth specific, legitimate reasons for crediting nonexamining psychologist's opinion over his).
a. The ALJ erred in assessing Dr. Simonian's opinion
The ALJ attributed "great weight" to the opinions of Drs. Simonian and Tendler, finding them "supported with explanation" and "both internally consistent and consistent with the record as a whole." (AR 22, 23.) As to Plaintiff's ability to relate to and interact with supervisors, coworkers, and the public, Dr. Simonian opined that she was "markedly limited" (AR 359), and Dr. Tendler believed that she was "[s]ocially available for superficial interactions," could "tolerate the minimum social demands of simple-task settings," and was "[a]ble to relate to coworkers [and] supervisors but would have difficulty relating to the public on a regular basis" (AR 138).
Dr. Tendler, who reviewed the record on reconsideration, found Dr. Simonian's psychiatric report "more limiting than warranted based on objective evidence in exam and reported functioning or [activities of daily living]." (AR 134.) Thus, Dr. Tendler gave Dr. Simonian's report "other than great weight" and concluded that "[w]hile the evidence supports some functional limitations, it does not support complete inability to work." (AR 134, 136.)
The ALJ appears to have adopted Dr. Tendler's opinion over Dr. Simonian's on this issue because he limited Plaintiff to no interaction with the public but occasional contact with coworkers and supervisors. (AR 20.) But he did not expressly resolve this obvious conflict, nor did he provide a "specific and legitimate reason" for implicitly discounting Dr. Simonian's finding of "marked limitation" as to Plaintiff's interaction with coworkers and supervisors. See Carmickle, 533 F.3d at 1164 (ALJ must give "specific and legitimate reason" for discounting contradicted examining physician's opinion). This was error:
[When] an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs. In other words, an ALJ errs when he rejects a medical opinion . . . while doing nothing more than ignoring it.Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (citation omitted).
The ALJ's failure to resolve the conflict was not harmless. The RFC did not take into account Dr. Simonian's finding that Plaintiff was essentially unable to interact with coworkers and supervisors. See Denby v. Colvin, No. 1:15-CV-00191-SB, 2016 WL 917313, at *4, *13 (D. Ore. Mar. 8, 2016) (noting that crediting doctor's opinion of "marked limitations" in interacting with supervisors, public, and coworkers and in responding appropriately to usual work situations would make claimant unable to work). The ALJ provided no explanation for ignoring Dr. Simonian's "marked limitation" finding as to coworkers and supervisors even though he gave the opinion "great weight." See Davis v. Colvin, No. 3:14-cv-00271-PK., 2015 WL 2218386, at *8, *10 (D. Ore. May 9, 2015) (remanding because ALJ failed to provide "detailed explanation" of implicit rejection of limitations in doctors' opinions despite giving them substantial weight); see also Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (remanding when ALJ failed to provide "detailed, reasoned and legitimate rationales" for disregarding physician's finding). Indeed, the vocational expert testified that if Plaintiff could not interact with "supervisors, coworkers or the public," she couldn't work at all. (AR 52.) Accordingly, the ALJ's error was not harmless and reversal is necessary.
b. The VE hypothetical was likely proper
Citing almost exclusively law from the Seventh Circuit, Plaintiff contends that the ALJ failed to ask the vocational expert about her difficulties in maintaining concentration, persistence, and pace. (J. Stip. at 4-5.) Because the ALJ's hypothetical included the functional limitations in his RFC finding and specified "1-2 step tasks" at "reasoning level 1," it properly accounted for Plaintiff's limitations in that area. (AR 20; see AR 48-51); see Thomas, 278 F.3d at 956 (when hypothetical includes all of claimant's credible functional limitations, ALJ is generally entitled to rely on VE's response).
At step five, the Commissioner has the burden of showing the existence of work in the national economy that a plaintiff can perform, taking into account her age, education, and vocational background. See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). To meet this burden, the ALJ must "identify specific jobs existing in substantial numbers in the national economy that claimant can perform despite her identified limitations." Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). The ALJ first assesses the claimant's RFC, then considers potential occupations the claimant may be able to perform, usually relying on the Dictionary of Occupational Titles or a VE's testimony. See Gutierrez v. Colvin, 844 F.3d 804, 806-07 (9th Cir. 2016) (ALJ may rely on VE to provide testimony about jobs applicant can perform despite her limitations, using DOT to guide analysis).
An "ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (citations omitted). Here, the ALJ posed to the VE a hypothetical individual of Plaintiff's age and education who was limited to one- or two-step tasks at reasoning level one, with no public contact but occasional contact with supervisors and coworkers. (AR 48-51.) This hypothetical was consistent with her RFC, which included "perform[ing] work consisting of simple 1-2 step tasks at reasoning level 1; can have no public contact; and can have occasional contact with supervisors and coworkers." (AR 20.)
Drs. Tendler and Mertens found Plaintiff "not significantly limited" in the ability to carry out short and simple instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; sustain an ordinary routine without special supervision; and make simple work-related decisions. (See AR 123, 137-38.) Both doctors found her "moderately limited" in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or in proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number or length of rest periods. (Id.) Dr. Simonian also found her "moderately limited" in her ability to do detailed and complex instructions, maintain concentration and attention for a period of time, adapt to the stresses common to a normal work environment, maintain regular attendance in the workplace and perform work activities on a consistent basis, and perform work activities without special or additional supervision. (AR 359.) He found her ability to remember, understand, and carry out simple one- or two-step instructions "not limited." (Id.)
The ALJ properly translated these limitations, including concerning concentration, persistence, and pace, into a concrete restriction to "simple 1-2 step tasks at reasoning level 1." (AR 20); see also Stubbs-Danielson, 539 F.3d at 1173-74 (ALJ's limitation to "simple, routine, repetitive" work sufficiently accommodated medical-opinion evidence that claimant had "moderate" limitation in pace and "other mental limitations regarding attention, concentration, and adaption"); Phillips v. Colvin, 61 F. Supp. 3d 925, 940 (N.D. Cal. 2014) (ALJ properly assessed medical evidence in determining that despite moderate difficulties in concentration, persistence, or pace, claimant could perform "simple routine 1-2 step unskilled tasks").
Again citing only Seventh Circuit law, Plaintiff also complains that the ALJ "failed to provide any analysis" of "allowable time off-task in a competitive job." (J. Stip. at 5.) The ALJ asked the VE whether someone who would be absent from work an average of more than two days a month because of a psychiatric condition or "off task at least 15% of the workday" would be precluded from work, and the VE responded that those were "beyond acceptable thresholds." (AR 51.) But the ALJ did not include any such finding in the RFC. (See AR 20.) Nor were such findings supported by the medical evidence. Drs. Simonian, Tendler, and Mertens found Plaintiff "moderately limited" in her ability to "maintain regular attendance in the workplace" or complete a normal "workday and workweek without interruptions from psychologically based symptoms." (AR 123, 137-38, 359.) To the extent it is unclear whether those findings translate to more than two absences a month or being off task 15 percent or more of the time, on remand the ALJ can reconsider the issue. See Ajani v. Comm'r of Soc. Sec., No. 18-cv-02226-SI, 2019 WL 2106232, at *15 (N.D. Cal. May 14, 2019) (finding that claimant would be barred from any job when he would miss three days monthly in winter because of asthma and arthritis and two days monthly rest of year).
B. Remand for Further Proceedings Is Appropriate
When, as here, an ALJ errs, the Court generally has discretion to remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Under the "credit-as-true" rule, a court may direct an immediate award of benefits. See id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."); see also Garrison, 759 F.3d at 1019-20. When the ALJ's findings are so "insufficient" that the Court cannot determine whether the rejected testimony should be credited as true, however, the Court has "some flexibility" in applying the credit-as-true rule. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also Garrison, 759 F.3d at 1020 (noting that Connett cautioned that credit-as-true rule may not be dispositive in all cases). This flexibility should be exercised "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act." Garrison, 759 F.3d at 1021.
Here, under Connett, remand for further proceedings is appropriate. As discussed, the ALJ failed to fully explain his decision, and further administrative proceedings will allow him to do so. Moreover, as discussed, other doctors found Plaintiff not as limited as Dr. Simonian did. On remand, the ALJ should resolve the conflict in the record concerning Plaintiff's ability to interact with coworkers and supervisors. Because reversal is warranted on this ground, the Court does not decide whether Plaintiff's subjective symptom statements were consistent with the record. That should be reassessed on remand once the conflict in the doctors' opinions is resolved.
VI. CONCLUSION
Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this Memorandum Decision. DATED: April 15, 2020
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------
/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge