Opinion
20-cv-07196-JCS
03-02-2022
J.M., Plaintiff, v. KILOLO KIJAKAZI, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 25, 28
JOSEPH C. SPERO Chief Magistrate Judge
I. INTRODUCTION
On October 11, 2018, Plaintiff J.M. applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, alleging disability beginning September 30, 2016. The claim was denied initially and upon reconsideration, and an administrative law judge (“ALJ”) held a video hearing on March 3, 2020. On April 30, 2020, the ALJ denied J.M.'s application, and on August 28, 2020, the Appeals Council denied review of J.M.'s appeal of the ALJ's decision, making it the final decision of the Defendant Commissioner of the Social Security Administration (“Commissioner”). After the Appeals Council denied review, J.M. sought review in this Court pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, the Court GRANTS J.M.'s Motion for Summary Judgment, DENIES the Commissioner's Motion for Summary Judgment, and REMANDS for an immediate calculation and award of benefits. 1
Because opinions by the Court are more widely available than other filings and this Order contains potentially sensitive medical information, this Order refers to Plaintiff using only her initials.
The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).
II. REGULATORY FRAMEWORK FOR DETERMINING DISABILITY
A. The Five-Step Framework
Disability insurance benefits are available under the Social Security Act (the “Act”) when an eligible claimant is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 423(a)(1). A claimant is only found disabled if their physical or mental impairments are of such severity that they are not only unable to do their previous work but also “cannot, considering [their] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
The Commissioner has established a sequential, five-part evaluation process to determine whether a claimant is disabled under the Act. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The claimant bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five. Id. “If a claimant is found to be ‘disabled' or ‘not disabled' at any step in the sequence, there is no need to consider subsequent steps.” Id.
At step one, the ALJ considers whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in such activity, the ALJ determines that the claimant is not disabled, and the evaluation process stops. Id. If the claimant is not engaged in substantial gainful activity, the ALJ continues to step two. See id.
The Court cites the regulations applicable to disability insurance benefits applications because the parallel SSI regulations are virtually identical.
At step two, the ALJ considers whether the claimant has “a severe medically determinable physical or mental impairment” or combination of such impairments that meets the regulations' twelve-month durational requirement. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An impairment or combination of impairments is severe if it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, disability benefits are denied. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ 2 determines that one or more impairments are severe, the ALJ proceeds to the next step. See id.
At step three, the ALJ compares the medical severity of the claimant's impairments to a list of impairments that the Commissioner has determined are disabling (“Listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If one or a combination of the claimant's impairments meets or equals the severity of a listed impairment, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis continues. See id.
At step four, the ALJ must assess the claimant's residual functional capacity (“RFC”) and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is “the most [a claimant] can still do despite [that claimant's] limitations . . . based on all the relevant evidence in [that claimant's] case record.” 20 C.F.R. § 404.1545(a)(1). The ALJ then determines whether, given the claimant's RFC, the claimant would be able to perform their past relevant work. 20 C.F.R. § 404.1520(a)(4). Past relevant work is “work that [a claimant] has done within the past fifteen years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it.” 20 C.F.R. § 404.1560(b)(1). If the claimant is able to perform their past relevant work, then the ALJ finds that they are not disabled. If the claimant is unable to perform their past relevant work, then the ALJ proceeds to step five.
At step five, the Commissioner has the burden to “identify specific jobs existing in substantial numbers in the national economy that the claimant can perform despite [the claimant's] identified limitations.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). If the Commissioner meets this burden, the claimant is not disabled. See 20 C.F.R. § 404.1520(f). Conversely, the claimant is disabled and entitled to benefits if there are not a significant number of jobs available in the national economy that the claimant can perform. Id.
B. Supplemental Regulations for Determining Mental Disability
The Social Security Administration has supplemented the five-step general disability evaluation process with regulations governing the evaluation of mental impairments at steps two and three of the five-step process. See generally 20 C.F.R. § 404.1520a. First, the Commissioner must determine whether the claimant has a medically determinable mental impairment. 20 C.F.R. 3 § 404.1520a(b)(1). Next, the Commissioner must assess the degree of functional limitation resulting from the claimant's mental impairment with respect to the following functional areas: 1) understand, remember, or apply information; 2) interact with others; 3) concentrate, persist, or maintain pace; and 4) adapt or manage oneself. 20 C.F.R. §§ 404.1520a(b)(2), (c)(3). Finally, the Commissioner must determine the severity of the claimant's mental impairment and whether that severity meets or equals the severity of a mental impairment listed in Appendix 1. 20 C.F.R. § 404.1520a(d). If the Commissioner determines that the severity of the claimant's mental impairment meets or equals the severity of a listed mental impairment, the claimant is disabled. See 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the evaluation proceeds to step four of the general disability inquiry. See 20 C.F.R. § 404.1520a(d)(3).
Appendix 1 provides impairment-specific “Paragraph A” criteria for determining the presence of various listed mental impairments, but all listed mental impairments share certain “Paragraph B” severity criteria in common (and some have alternative “Paragraph C” severity criteria). See generally 20 C.F.R. § 404, Subpt. P, App. 1 at 12.00. Any medically determinable mental impairment-i.e., one that satisfies the Paragraph A criteria of one or more listed mental impairments-is sufficiently severe to render a claimant disabled if it also satisfies the general Paragraph B criteria, which requires that a claimant's mental disorder “result in ‘extreme' limitation of one, or ‘marked' limitation of two, of the four areas of mental functioning.” Id. at 12.00(A)(2)(b). A claimant has a “marked” limitation if the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(F)(2)(d). A claimant with an “extreme” limitation is “not able to function in this area independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(F)(2)(e).
This evaluation process is to be used at the second and third steps of the sequential evaluation discussed above. Social Security Ruling 96-8p, 1996 WL 374184, at *4 (“The adjudicator must remember that the limitations identified in the ‘paragraph B' and ‘paragraph C' criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.”). If the Commissioner determines that the 4 claimant has one or more severe mental impairments that neither meet nor are equal to any listing, the Commissioner must assess the claimant's residual functional capacity. 20 C.F.R. § 404.1520a(d)(3). This is a “mental RFC assessment [that is] used at steps 4 and 5 of the sequential process [and] requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments . . . . ” Social Security Ruling 96-8p, 1996 WL 374184, at *4.
III. BACKGROUND
J.M. was a forty-five year-old woman at the time of her alleged onset date. She has a history of psychiatric hospitalizations dating back to 2009, following a divorce and the loss of custody of her child. Administrative Record ("A.R.") 424, 1108. She previously worked as a flight attendant for eighteen years and also as a Transportation Security Administration ("TSA") officer with Homeland Security. Id. at 1008. Prior to sobriety in 2018, J.M. drank heavily and considered herself a "functioning alcoholic." Id. She fell out of a moving truck in November 2017, and suffered numerous injuries, including hematomas in her head and body and a fractured sacrum. Id. at 860, 862-63, 886, 892-93. She was subsequently hospitalized for several days and was treated for alcohol withdrawal. Id. at 1858.
J.M. suffers from several hepatic impairments, neuropathy, and anxiety and depression, among other conditions. Id. at 18-21. The impairments and their symptoms have left J.M. unable to work and in need of frequent medical attention, including hospitalization. Id. at 52-53, 694. At the time of her 2020 hearing, J.M. lived with her boyfriend, and he assisted J.M. with her care and daily activities like grocery shopping, doctor visits, and laundry. Id. at 71, 354.
A. Summary of Medical Treatment
In March 2018, J.M. was seen by Dr. Robin Barnes at the Redwoods Rural Health Clinic in Redway, California, at which time she complained of "bilateral feet stinging" and elevated liver enzymes. Id. at 992. Her abdominal exam was normal, and the doctor noted that she had no ascites, palpable mass, or hepatic bruit. Id. at 993. She underwent liver enzyme testing, and the results subsequently came back normal. Id. at 996. The doctor prescribed medication for the 5 neuropathy in her feet. Id. at 993.
In May 2018, J.M. returned to the Redwoods Rural Health Clinic, at which time she was diagnosed with a fatty liver and alcohol dependence. Id. at 998. It was recommended that she reduce her alcohol dependence. Id. The next month, in June 2018, the same clinic treated J.M. for increasing numbness in her feet. Id. at 1006. The Redwoods Rural Health Clinic also referred J.M. to a neurologist in Eureka, California. Id. She returned to the Redwoods Rural Health Clinic on June 22, 2018, complaining that she had experienced chest pain and reporting that she had reduced her alcohol intake to one glass of wine per day. Id. at 1007. She had an electrocardiogram ("EKG"), which revealed "possible old Q wave changes," and she was referred to a cardiologist in Eureka, California. Id. at 1009-10.
On July 2, 2018, Dr. Barnes of Redwoods Rural Health Clinic notified J.M. that "[i]n regards to your recent labs[, ] [y]our liver function, platelet levels and blood levels are improved. You are making progress and you are doing much better, according to your labs." Id. at 1011. That same day, on July 2, 2018, J.M. visited the cardiology department at St. Joseph Health in Eureka, California following her complaints of chest pain. Id. at 638. An examination and tests revealed normal results, including those from an EKG. Id. at 636, 640-48.
Later that fall, in September 2018, J.M. attended counseling sessions at Redwoods Rural Health Clinic with Dr. Holland. Id. at 1014. Around the same time, on September 10, 2018, J.M. was seen by the neurology department at St. Joseph Health in Eureka, California. Id. at 1070-78. At that time, she had a nerve conduction study that suggested "very mild axonal polyneuropathy."
"Axonal polyneuropathy" or "axon loss polyneuropathy" is defined as "a type of polyneuropathy in which axon degeneration is the sole or predominant feature; it has many etiologies, particularly toxic and metabolic; nerve conduction studies show that it affects the amplitude of the responses but does not cause conduction slowing or block." Stedmans Medical Dictionary § 709630 (Nov. 2014).
Subsequently, on September 14, 2018, Dr. Barnes at the Redwoods Rural Health Clinic noted that J.M. was suffering from insomnia and elevated blood pressure in addition to alcohol dependence. Id. at 1015. J.M. reported that she had resorted to drinking again to help her sleep. Id. 6
On October 8, 2018, J.M. returned to the cardiologist at St. Joseph Health in Eureka, California. Id. at 634. Upon examination, she had an enlarged liver and jaundiced skin. Id. at 636. She was referred to the emergency room for alcoholic hepatitis evaluation, and Dr. Phillip Scheel recommended she discontinue all alcohol. Id. at 637.
She was subsequently admitted to the St. Joseph Hospital in Eureka that same day, October 8, 2018, for jaundice, and a history of chronic alcohol abuse, severe alcohol withdrawal, and hypertension, and she remained hospitalized until October 26, 2018. Id. at 694. During her hospitalization, she suffered from "altered mental status and paranoia and psychosis." Id. She also had "an elevated ammonia level consistent with hepatic encephalopathy," and "a moderate amount of ascites in [four] quadrants." Id. On October 23, 2018, days prior to J.M.'s hospital discharge, Dr. Michael Fratkin from ResolutionCare, a palliative care facility in Eureka, California, opined that J.M. met the criteria for palliative care based upon her "end stage liver disease and social challenges." Id. at 652-55. He further opined that J.M.'s "death within a year would not be unexpected based on clinical status," Id. at 653, 917, and that she had irreversible liver damage, ascites, and hepatic encephalopathy. Id. at 655, 917. Upon her discharge from the hospital on October 26, 2018, it was recommended that she follow up with a psychiatrist and regarding her "liver mass." Id. at 695.
J.M. then saw Dr. Sand, a treating family medicine provider at ResolutionCare in Eureka, California, on December 10, 2018, for a follow-up visit after her October 2018 hospitalization. Id. at 658, 694, 911. In his treatment records from that visit, Dr. Sand noted that both J.M.'s physical and mental condition had improved since October 2018, but that she continued to have some memory difficulties and pain. Id. at 911-12.
Days later, Dr. Fratkin, from ResolutionCare's palliative care facility in Eureka, California, offered a second opinion in support of J.M.'s benefits application. He noted that J.M. was his patient, and stated: "She has end stage liver disease with cirrhosis and hepatic encephalopathy which impairs thinking and clouds judgment. It is imperative that processing of [J.M.'s] application be prioritized due to her significant medical issues which threaten both her quality of life and the remaining time she has left." Id. at 908. 7
Subsequently, on December 14, 2018, J.M. was examined and evaluated by California Pacific Medical Center ("CPMC") hepatologist, Dr. Adil Wakil, in San Francisco, California. Id. at 951-53, 1730-1823. Dr. Wakil noted that J.M. was being evaluated for alcohol-related liver disease and that she had "longstanding history of alcohol use disorder." Id. at 951. According to Dr. Wakil, J.M.'s recent hospitalization was due to encephalopathy, alcoholic hepatitis, jaundice, ascites, wasting, and confusion. Id. Dr. Wakil noted improvement because J.M. had stopped drinking alcohol since her hospitalization. Id. at 953. He noted that her ascites had resolved, but that she was "still quite malnourished," and opined that she had "significant underlying chronic liver disease." Id. He could not conclude whether she had cirrhosis but suspected that she did have advanced liver fibrosis. Id. J.M.'s encephalopathy was mild then, but she suffered from painful neuropathy that Dr. Wakil noted "may not get better over time." Id.
In January 2019, Dr. Amon, a state agency non-examining physician opined that J.M. could perform a reduced range of light work with standing and walking limited to two hours per day. Id. at 97.
J.M. subsequently followed up with Dr. Sand again on March 28, 2019, for her hepatic encephalopathy and cirrhosis of the liver. Id. at 1122. That visit occurred a few weeks after an ultrasound revealed that J.M.'s hepatic mass had increased in size. Id. at 1233-34. Dr. Sand noted at that visit that J.M. had an "undiagnosed liver mass that is enlarging," and that her resulting pain was a six out of ten. Id. at 1125. He noted that she "had some good days and many bad ones," and that she experienced "a lot" of cognitive impairment and confusion. Id. He discussed the use of methadone with J.M. because her "enlarged liver and damaged nerves [were] requiring a stronger medicine that has the properties to relieve her pain better." Id.
On June 6, 2019, Dr. Fratkin from ResolutionCare's palliative care offered his third opinion that J.M. continued to meet the criteria for palliative care based on end stage liver disease with multiple complications and severe functional impairment. Id. at 1118. A few months later, in a June 18, 2019, statement in support of [J.M.'s] benefits application, Dr. Sand opined that J.M. was
unable to resume any type of gainful employment due to physical impairment. Her fatigue, pain, weakness, and other symptoms would significantly and consistently8
interfere with work performance and attendance. [J.M.] has and will see a continued decline in function over time, which is expected to last longer than [twelve] months, and/or continue until her death.Id. at 1117. In support, Dr. Sand explained that J.M. was diagnosed with "terminal" end stage liver disease and cirrhosis of the liver. Id. He observed that [J.M.]'s symptoms included "chronic pain, neuropathy, edema, weakness, fatigue drowsiness, nausea, vomiting, confusion, depression[, ] and anxiety," and that both "her symptoms and overall quality of life have continued to decline." Id. Around this same time, in June 2019, a magnetic resonance imaging ("MRI") revealed J.M. had a liver mass consistent with a regenerating nodule. Id. at 1643-44.
Another several months later, on September 19, 2019, after a follow-up visit, Dr. Sand noted J.M. had been sober for nearly one year and opined that she had "good control of most symptoms of [advanced liver disease]." Id. at 1695. Additionally, J.M's cirrhosis had improved, and her hepatic encephalopathy was controlled on medications. Id. However, she continued to suffer from chronic neuropathy. Id. Soon thereafter, on September 30, 2019, a Doppler imaging showed that the mass in J.M.'s liver was stable. Id. at 1845.
On October 1, 2019, J.M. was seen by Nurse Practitioner, Marice Thomas, at CPMC in Eureka, California, for a follow-up from April 2018 regarding J.M.'s liver disease. Id. at 1622-23. Nurse Thomas noted that J.M. suffered from "chronic and ongoing complaints of abdominal pain, chest pain, confusion, depression," and insomnia, among other conditions. Id. at 1622. Nurse Thomas opined that J.M. had "[l]ikely early cirrhosis secondary to alcohol history, compensated with low MELD 7. She has shown significant improvement in the past year. She was advised to continue to remain completely alcohol free." Id. Thomas discussed a liver transplant with J.M. and noted that she was not a candidate because it was not "clear that [she] ha[d] liver failure." Id.
"MELD" is an acronym for "model for end-stage liver disease," and "MELD score is the score provided to patients based on how urgently they need a liver transplant in the next three months." Mayo Clinic Transplant Staff, The MELD Score: Definitions and Frequently Asked Questions, Mayo Clinic Connect (March 1, 2022, 12:59 pm.), https://connect.mayoclinic.org/blog/transplant/newsfeed-post/the-meld-score-definitions-andfrequently-asked-questions/.
On October 16, 2019, Dr. Williams, another state agency non-examining physician confirmed the prior state agency non-examining physician Dr. Amon's January 2019 RFC opinion 9 that J.M. could perform a reduced range of light work with standing and walking limited to two hours per day. Id. at 140.
Less than two months later, though, at a November 6, 2019, follow-up for "palliative care provided for advanced alcoholic liver disease complicated by ascites and encephalopathy" with Dr. Sand, J.M.'s health had declined. Id. at 1691-92. Dr. Sand noted that J.M.'s "hepatic failure is slowly worsening. She is barely able to care for herself at home safely, certainly not capable of gainful employment based on presentation today. She needs ongoing support to help her compensate for her cognitive impairment." Id. at 1692. He further observed that J.M. was "quite fatigued, eating poorly, spending most of her time sleeping," and that she suffered from "daily cognitive difficulties with memory, concentration, and speech." Id. at 1691.
In conjunction with the November 2019 visit, Dr. Sand completed an assessment of J.M.'s functional work capacities. Id. at 1386-1389. The assessment noted that J.M. had been diagnosed with alcoholic liver disease, cirrhosis, and peripheral neuropathy, and that her symptoms included extreme fatigue, poor memory, confusion, intractable pain in her abdomen, anxiety, and depressed mood. Id. at 1386. The assessment also evaluated J.M.'s capacity to work on a function-by-function basis. Both parties and the ALJ agree that based on Dr. Sand's functional evaluations, he was, in effect, ultimately opining that J.M. was capable of less than sedentary work. Id. at 28.
Dr. Sand did not state that ultimate opinion, though, in his assessment. Id. at 1386-89.
B. Mental Health Reports and Opinions
As noted above, in September 2018, a clinical social worker from the Redwoods Rural Health Center examined J.M. Id. at 1013-14. He noted that J.M. was "wobbly and [had] difficulty walking straight." Id. at 1013. She had been a victim of a crime, had also lost her brother to crime, and was suffering from extreme anxiety and fear related to those events. Id. In general, he found J.M. depressed and anxious. Id.
During J.M.'s subsequent hospitalization in October 2018, psychiatrist Dr. Robert Soper examined her. Id. at 713-25. He noted that she was hallucinating and that she was experiencing chronic liver failure. Id. at 717, 725. J.M.'s "motor movement [was] slow," and she was suffering 10 from post-traumatic stress syndrome and Wernicke-Koroskoff's psychosis and/or hepatic encephalopathy. Id. at 718-19. Dr. Soper adjusted J.M.'s medications. Id. He noted that J.M. begged him to leave the hospital, but that she "ha[d] no insight into how ill she still is." Id. at 724.
"Wernicke-Korsakoff syndrome
is a brain disorder caused by lack of thiamine (vitamin B1) that may result in lasting brain damage. [It] is sometimes diagnosed as two separate conditions: Wernicke's encephalopathy and Korsakoff syndrome. Generally, though, they [are] considered to be different stages of the same disorder, both caused by too little thiamine in a person's body. [I]n advanced cases, even with treatment, the disorder's effect on memory and other thinking skills can be permanent.Neill Graff-Radford, M.D., Neurology, Mayo Clinic, Prompt Diagnosis and Treatment May Eliminate Symptoms of Brain Disorder, Mayo Clinic News Network (March 1, 2022, 1:07 p.m.), https://newsnetwork.mayoclinic.org/discussion/prompt-diagnosis-and-treatment-may-eliminatesymptoms-of-brain-disorder/#:~:text=Answer%3A, eventually%20can%20be%20life%2Dthreatening.
On March 23, 2019, examining consultative psychologist, Dr. Sara Bowerman, met with J.M. Id. at 1107-15. Dr. Bowerman observed that J.M. presented as both depressed and anxious during the visit, and she administered several tests, including the Wechsler intelligence and memory tests. Id. at 1112. Dr. Bowerman ultimately concluded that J.M. was mildly impaired in her ability to ability to understand, remember, and carry out simple one or two-step job instructions. Id. at 1116. According to Dr. Bowerman, J.M. also suffered from mild functional impairments in the following categories "due to her depressive and anxiety disabilities and substance use:" (1) ability to understand, remember, and carry out detailed but uncomplicated job instructions; (2) ability to understand, remember, and carry out an extensive variety of technical and/or complex job instructions; (3) ability to maintain concentration, attention, and for pacing, tracking, and scanning; (4) ability to respond to usual work situations (attendance, safety, etc.); and (5) ability to deal with changes in a routine work setting. Id. Dr. Bowerman further opined that J.M. possessed moderate to marked impairments in her ability to interact with others in socially acceptable ways and in her ability to respond appropriately to co-workers and supervisors. Id.
Approximately one month after Dr. Bowerman's examination, on April 16, 2019, Dr. Beverly Westra, a state agency non-examining psychological consultant similarly concluded that 11 J.M. suffered from depressive and anxiety disorders. Id. at 95. She found that J.M. possessed moderate limitations in the following four categories: (1) J.M.'s ability to understand, remember, or apply information; (2) J.M.'s ability to interact with others; (3) J.M.'s ability to concentrate, persist, or maintain pace; and (4) J.M.'s ability to adapt or manage oneself. Id.
On September 10, 2019, another state agency non-examining consulting psychologist issued a report based on her review of J.M.'s medical record. Id. at 138. Dr. Kresser did not entirely agree with Dr. Westra's prior assessment. See Id. at 138 (suggesting that Dr. Westra's findings were "[n]ot totally consistent with the preponderance of the evidence"). Contrary to Dr. Westra, Dr. Paula Kresser opined that J.M. possessed only mild limitations in three out of four categories. Dr. Kresser found J.M. was moderately limited only in her ability to interact with others. Id.
C. J.M.'s Statements and Testimony
1. Adult Function Reports
J.M. completed two Adult Function Reports in conjunction with her benefits application. Id. at 305-12, 351-60. She completed the first report in December 2018, following her October 8-26, 2018 hospitalization. Id. at 305-312. She described her typical day, which was extremely limited. J.M. stated that she routinely gets out of bed, uses the restroom, changes her diaper, takes medications, watches television, and makes a lot of calls to doctors and regarding her insurance. Id. at 306. She has difficulty with her personal care and requires some help dressing and sometimes using the bathroom. Id. She typically drinks Ensure or other shake boosts and can only prepare very simple meals for herself like toast and soup. Id. at 306-07. In terms of household chores, she is only able to work for two to five minutes before she feels nauseated, falls, or has spasms. Id. at 307. She does not drive because of her balance, memory, and fatigue, and she needs help with bills and handling money because she cannot concentrate, remember, or see well due to her jaundice. Id. at 308.
J.M.'s hobbies include watching television and playing cards. Id. at 309. She also gets books from the library. Id. She is limited in her activities - including all physical activities - by her condition and pain, and she is limited in other non-physical activities because of her poor 12 memory, dizziness, and inability to focus. Id. J.M. noted that she "basically can't do much on [her] own. [She] want[s] to but [she] is limited and get[s] frustrated, sick, and is in a lot of pain. [She] can't focus or think clearly[, ] which scares [her.]" Id. at 312.
Approximately six months later, in June 2019, J.M. completed a second Adult Function Report, which is largely consistent with her first report. Id. at 351-59. Notably, she "quit drinking alcohol [in] October 2018," following completion of her first Adult Function Report. Id. at 356. Her reported daily activities were similar to those she listed in her December 2018 report, and she additionally noted that she tries to "sort bills" and prepare a "to-do list." Id. at 352. J.M. reported many of the same limitations and conditions that she detailed in her first report. Again, she noted that she "can only handle max[imum] five minutes" completing chores like doing the dishes or folding laundry or she experiences extreme pain. Id. at 353. She only leaves the house once a week at the most because she needs someone to drive and "guide [her] through whatever [she] is out doing." Id. at 354. She asserted that she "can't do anything physical anymore [because she's] too weak, confused, and all-over body sore." Id. at 355. J.M. opined that she was unable to work based on her lack of concentration and memory, nausea, dizziness, fatigue, insomnia, diarrhea, vomiting, shortness of breath, back, neck, and shoulder pain, and neuropathy in her extremities. Id. at 351.
2. March 2020 Hearing
At J.M.'s March 2020 hearing, she testified that she has days where her illness will "take over," and she is unable to get out of bed. Id. at 51. As a result, she asserted that she is unable to work a full-time job because jobs do not exist where she could miss work and/or lie down as needed. Id. at 52-53. J.M. is typically only able to leave home two days a week for doctor appointments, and when she returns home, she needs to go back to bed and will often stay in bed for days afterward because she has exhausted herself by leaving home. Id. at 52, 55.
J.M. suffers from neuropathy, which causes numbness and pain in her feet and hands. Id. at 57-58. Her liver condition also causes her torso to swell, and she is often unable to tolerate pain medications due to her liver. Id. at 64. As a result, her pain is frequently uncontrolled and causes nausea. Id. She suffers from spontaneous diarrhea, which requires her to wear a diaper, and 13 impedes her ability to leave home. Id. at 64.
In terms of her daily care, she has difficulty doing laundry and washing dishes because her hands go numb. Id. at 59. Her boyfriend does the grocery shopping. Id. at 71. She can do a limited amount of cooking, but certain cooking-related activities (e.g., utilizing a knife) are not safe due to the numbness in her hands. Id. Cognitively, J.M. experiences memory and word-finding difficulties. Id. at 52-53.
D. The ALJ's Decision
The ALJ ultimately determined that J.M. was not disabled at step five of the disability determination. Id. at 33. At step one, the ALJ concluded that J.M. had not engaged in substantial gainful activity since September 30, 2016, her alleged onsite date. Id. at 18. Subsequently, at step two, the ALJ determined that J.M.'s neuropathy, cirrhosis of the liver, depression, and generalized anxiety constituted severe impairments, but that her hepatic encephalopathy, hepatic ascites, edema in extremities, chronic fecal incontinence and bladder incontinence, macrocytic anemia, portal hypertension, jaundice, and polysubstance abuse were not severe. Id. For each of the latter conditions, the ALJ provided an explanation as to why the condition was not "severe." Id. at 18-21.
At step three, the ALJ found that J.M.'s impairments, even in combination, did not meet or equal in severity any of the listed impairments, specifically considering Listings 12.04 (depressive disorders) and 12.06 (anxiety and obsessive-compulsive disorders). Id. at 21. In making this determination, the ALJ addressed whether the paragraph B criteria of these listings were satisfied. Id. at 21-23. The ALJ found that J.M. had moderate limitations in two of the four functional categories of paragraph B, including her ability to understand, remember, or apply information, and her ability to concentrate, persist, or maintain pace. Id. at 22. By contrast, the ALJ determined that J.M. possessed only mild limitations in terms of her ability to interact with others and her ability to adapt and/or manage herself. Id. at 22-23. The ALJ thus concluded that J.M. did not meet the paragraph B criteria because she did not have two marked limitations or one extreme limitation in the functional categories. Id. at 23.
The ALJ further found that J.M. did not meet the paragraph C criteria, either. Id. 14
At step four, the ALJ found that J.M. had the residual functional capacity ("RFC") to perform:
light work [] except she can: occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; never work around heights or hazardous machinery; she can perform simple and routine tasks equivalent to unskilled work with a maximum SVP [] ¶ 2; and frequently reach, handle and finger.Id. at 23. In reaching this RFC, the ALJ found that J.M.'s medically determinable impairments could reasonably cause the symptoms she alleged but that her "statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record." Id. In support, the ALJ noted that "the objective medical evidence does not support the level of symptomology that [J.M.] alleged." Id. at 28.
The ALJ explained that the opinions of state agency medical consultants, Drs. Amon and Williams, were persuasive regarding the work J.M. was able to perform. Id. at 28. The ALJ found the opinions of psychological consultative examiner, Dr. Bowerman, and state agency psychological consultant, Dr Westra, only partially persuasive. Id. at 29. Finally, the ALJ found unpersuasive the opinions of J.M.'s treating family medicine provider, Dr. Sand, and emergency medicine physician, Dr. Fratkin. Id. at 28-29.
In conjunction with the RFC assessment, the ALJ further noted that J.M.'s neuropathy, cirrhosis, depression and anxiety, along with pain symptoms, cause her discomfort and impact her concentration and focus. Id. at 30. However, the ALJ additionally explained that:
[T]he objective medical records indicate that [J.M.] has been treated for these conditions in a conservative manner. The evidence shows that [J.M.] has suffered no neurological deficits and she is capable of ambulation without an assistive device. There is nothing in the record to indicate that such a device is medically necessary. [J.M] has also not shown any mental or adaptive deficits consistent with those of a disabled person. In fact, the evidence demonstrates she is capable of a wide range of activities of daily living. She also responded well to psychiatric medications prescribed by her primary care doctor, and she has not sought mental health treatment from a specialist. While [J.M.]'s conditions may cause her to have some restrictions and limitation with work[-]related activities, the evidence in file indicates that those limitations are not severe enough to keep her from working with the [RFC] assessed.Id. at 30-31. 15
The ALJ subsequently determined that J.M. was unable to perform her past relevant work as a flight attendant, security officer, front desk clerk, or medical assistant based on her existing RFC. Id. at 31.
At step five, the ALJ relied on the testimony of a vocational expert ("VE") in concluding that J.M. could perform a limited range of light work, including as a cashier, routing clerk, and/or housekeeper. Id. at 32. The ALJ thus found J.M. not disabled at step five. Id. at 33.
III. ISSUES FOR REVIEW
J.M. seeks reversal of the Commissioner's denial of benefits for three reasons, arguing that:
(1) the ALJ erred in evaluating the persuasiveness of her treating physician, Dr. Sand's November 2019 opinion regarding her work capacity;
(2) the ALJ improperly rejected J.M.'s testimony without providing clear and convincing reasons for doing so; and
(3) the ALJ failed to find numerous other impairments -- including her hepatic encephalopathy, chronic fecal/bladder incontinence, end stage liver disease, decreased memory and mental function, and muscle pain -- to be "severe" at step two.
IV. DISCUSSION
A. Standard of Review
District courts have jurisdiction to review the final decisions of the Commissioner and may affirm, modify, or reverse the Commissioner's decisions with or without remanding for further hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). “This court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett, 180 F.3d at 1097. Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion” and that is based on the entire record. Richardson v. Perales, 402 U.S. 389, 401 (1971). “‘Substantial evidence' means more than a mere scintilla, ” id., but “less than preponderance.” Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (internal citation omitted). Even if the Commissioner's findings are supported by substantial evidence, the decision should be set aside if proper legal standards were not applied 16 when weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). In reviewing the record, the Court must consider both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)).
B. ALJ's Rejection of Treating Physician, Dr. Sand's Opinion
Dr. Sand was J.M.'s treating physician and had followed J.M.'s care for no less than five visits and for nearly one year following her October 2018 hospitalization. A.R. 658, 1122, 1117, 1695, 1691. The ALJ rejected Dr. Sand's opinion as unpersuasive, and in doing so, erred. Id. at 28.
1. Legal Standards
For claims filed before March 27, 2017, “[t]he medical opinion of a claimant's treating physician is given ‘controlling weight' so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record.'” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). However, the regulations regarding evaluation of medical evidence have been amended and several of the prior Social Security Rulings, including SSR 96-2p (“Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions”), have been rescinded for claims protectively filed after March 27, 2017, as is the case here. See Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed.Reg. 5844, at 5867-68 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c (a), 416.920c(a).
The new regulations provide that the Commissioner “will no longer give any specific evidentiary weight to medical opinions; this includes giving controlling weight to any medical opinion.” 20 C.F.R. § 416.920c(a). Instead, the Commissioner must consider all medical opinions and “evaluate their persuasiveness” based on the following factors: 1) supportability; 2) consistency; 3) relationship with the claimant; 4) specialization; and 5) “other factors.” 20 C.F.R. § 416.920c(a)-(c). “Although the regulations eliminate the ‘physician hierarchy,' deference to specific medical opinions, and assigning ‘weight' to a medical opinion, the ALJ must still 17 ‘articulate how [they] considered the medical opinions' and ‘how persuasive [they] find all of the medical opinions.' ” Christopher Charles A. v. Comm'r of Soc. Sec., No. C19-5914-MLP, 2020 WL 916181, at *2 (W.D. Wash. Feb. 26, 2020) (citing 20 C.F.R. §§ 404.1520c(a) and (b) (1), 416.920c(a) and (b) (1)).
As with all other determinations made by the ALJ, the ALJ's persuasiveness explanation must be supported by substantial evidence. See Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *4 (W.D. Wash. Apr. 9, 2020) (citing 82 Fed.Reg. at 5852) (finding that, under the new regulations, “[t]he Court must . . . continue to consider whether the ALJ's analysis has the support of substantial evidence”); J.B. v. Kijakazi, No. 20-cv-06231-VKD, 2022 WL 282513, at *3 (N.D. Cal. January 31, 2002).
The two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability, ” which are the “same factors” that “form[ed] the foundation of the [prior] treating source rule.” Revisions to Rules, 82 Fed.Reg. 5844-01 at 5853. The ALJ is required to explicitly address supportability and consistency in their decision. 20 C.F.R. § 404.1520c(b)(2). With respect to “supportability, ” the new regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(1). The regulations provide that with respect to “consistency, ” “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(2).
Typically, the ALJ “may, but [is] not required to, ” explain how they considered the remaining three factors listed in the regulations. Id. However, where two or more distinct medical opinions are equally supported and considered, the ALJ is required to articulate how they considered factors other than supportability and consistency, including the treatment relationship. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3); see also Ceja v. Comm'r of Soc. Sec., No. 1:20-CV-01267-EPG, 2021 WL 4690742, at *1 (E.D. Cal. Oct. 7, 2021). 18
The third factor, relationship with the claimant, is split into five sub-factors. 20 C.F.R. §§ 404.1520c(c)(3), 416.927c(c)(3). When analyzing the relationship with the claimant, the adjudicator should consider: (1) the length of the treatment relationship; (2) the frequency of examinations; (3) the purpose of the treatment relationship; (4) the extent of the treatment relationship; and (5) whether there was an examining relationship. Id. In evaluating how the “relationship with the claimant” affects the weight that should be given to medical opinions, the regulations elaborate as follows regarding each of the five sub-factors:
(i) Length of the treatment relationship. The length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with the medical source may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories may help demonstrate the level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.20 C.F.R. § 404.1520c(c)(3)(i)-(v).
Specialization, the fourth factor, suggests that a medical opinion is more persuasive if the source is a specialist in an area relevant to the claimant's conditions. 20 C.F.R. §§ 404.1520c(c)(4), 416.927c(c)(4). Finally, the catch-all provision, “other factors, ” permits adjudicators to consider “other factors that tend to support or contradict” a medical opinion. 20 C.F.R. §§ 404.1520c(c)(5); 416.927c(c)(5) (including, but not limited to, “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements.”). 19
J.M. argues that the new regulations did not impact Ninth Circuit precedent requiring deference to treating physicians. Accordingly, J.M. contends that the ALJ was still required to provide specific and legitimate reasons for rejecting Dr. Sand's opinions. The Commissioner did not respond to this argument.
The Social Security Administration ("SSA") is a regulatory agency with "broad authority to interpret the statutes [it is] charged with applying, [and] as long as [its] regulations are not arbitrary and capricious or contrary to the statute, . . . courts must defer to validly adopted regulatory interpretations.” George D.D.L. v. Saul, No. 20-cv-03552-SK, 2021 WL 5205600, at *3 (N.D. Cal. Nov. 9, 2021) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)); see also Barnhart v. Walton, 535 U.S. 212, 222 (2002) (holding that SSA interpretation of duration requirement for disability benefits was entitled to deference under Chevron). An agency's contrary interpretation will supersede a prior judicial construction unless the “prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” George D.D.L., 2021 WL 5205600 at *3 (quoting Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).
The treating physician rule, as determined by the Ninth Circuit, "was not derived from the unambiguous terms of the statute," George D.D.L., 2021 WL 5205600 at *3, but was instead "originally developed by Courts of Appeals as a means to control disability determinations by administrative law judges under the Social Security Act.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003); see also Agans v. Saul, No. 2:20-cv-00508 AC, 2021 WL 1388610, at *6 (E.D. Cal. Apr. 13, 2021) (describing the source and evolution of the treating physician rule). "When the SSA later adopted regulations approving and formalizing use of the rule in the Social Security disability program, the agency noted that '[n]one of the circuit courts of appeals has held that its treating physician rule is required by the Act or Constitution.'” George D.D.L., 2021 WL 5205600 at *3 (quoting Final Rules, Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 (1991)). Accordingly, the SSA's new regulations regarding the examination of and weight given to medical providers supersede the Ninth Circuit's 20 treating physician rule. Id.; see also Darrell F. v. Kijakazi, No. 20-CV-06013-SK, 2021 WL 5584764, at *3 (N.D. Cal. Nov. 30, 2021) (concluding “the SSA's new regulations regarding the examination of and weight given to medical providers supersede the Ninth Circuit's treating physician rule; addressing the ALJ's evaluation of the medical opinions in accordance with the new regulations"); Barrios v. Saul, No. 20-cv-04598-YGR, 2021 WL 4311463, at *3 (N.D. Cal. Sept. 22, 2021) (“In weighing medical opinions, for claims filed on or after March 27, 2017, new regulations apply that change the framework for how an ALJ must weigh medical opinion evidence.”); Agans, 2021 WL 1388610, at *7 (rejecting argument that the new regulation does not override prior caselaw establishing the treating physician rule and finding that the new regulation displaces contrary, pre-existing caselaw).
However, "[i]t remains to be seen whether the new regulations will meaningfully change how the Ninth Circuit determines the adequacy of an ALJ's reasoning and whether the Ninth Circuit will continue to require that an ALJ provide ‘clear and convincing' or ‘specific and legitimate reasons' in the analysis of medical opinions, or some variation of those standards.” Joseph Perry B. v. Saul, No. SACV 20-1196-KS, 2021 WL 1179277, at *3 (C.D. Cal. Mar. 29, 2021) (citing Patricia F., 2020 WL 1812233 at *3); see also T.N. v. Kijakazi, No. 20-cv-04946-TSH, 2021 WL 4553581, at *4 (N.D. Cal. Oct. 5, 2021); Timothy Mitchell B. v. Kijakazi, No. 5:20-cv-01529-AFM, 2021 WL 3568209, at *5 (C.D. Cal. Aug. 11, 2021); Madison L. v. Kijakazi, No. 20-cv-06417-TSH, 2021 WL 3885949, at *4 (N.D. Cal. Aug. 31, 2021); Agans, 2021 WL 1388610, at *7.
The Ninth Circuit previously required an ALJ to provide “clear and convincing reasons that are supported by substantial evidence” to reject an uncontradicted opinion of a treating or examining physician. Trevizo, 871 F.3d at 675; Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014). Alternatively, “[i]f a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Trevizo, 871 F.3d at 675. An ALJ “can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 21
Some district courts have continued to apply the “clear and convincing” and “specific and legitimate” standards as a “benchmark against which the Court evaluates [the ALJ's] reasoning.” See, e.g., Kathleen G. v. Comm'r of Soc. Sec., No. C20-461 RSM, 2020 WL 6581012, at *3 (W.D. Wash. Nov. 10, 2020). Others, including courts in this district, have not. See, e.g., Madison L., 2021 WL 3885949, at *4; V.W. v. Comm'r of Soc. Sec., No. 18-cv-07297-JCS, 2020 WL 1505716, at *13 (N.D. Cal. Mar. 30, 2020); J.C. v. Kijakazi, No. 20-CV-06746-TSH, 2021 WL 5744485, at *4 (N.D. Cal. Dec. 2, 2021).
The Court is persuaded that Ninth Circuit precedent requiring the ALJ to provide “clear and convincing” or “specific and legitimate” reasons for rejecting a treating physician's opinion does not apply to the ALJ's decision here to reject Dr. Sand's opinion under the current regulations in effect. There are limited circumstances in which the Ninth Circuit's precedent is not controlling, and this is one of them. See Lambert v. Saul, 980 F.3d 1266, 1268, 1274 (9th Cir. 2020) (noting that "[t]hose circumstances include the intervening higher authority of an administrative agency's authoritative and reasonable interpretation of a statute"); see also J.C., 2021 WL 5744485 at *4 (discussing Lambert); Madison L., 2021 WL 3885949 at *4 (same). In Lambert, the Ninth Circuit deferred to the SSA's contrary interpretation of the 1984 Reform Act, which found that there was no presumption of continuing disability after a prior disability determination. 980 F.3d at 1268. In deferring to the agency's interpretation despite its own contrary precedent, the Ninth Circuit concluded that “the SSA's authoritative interpretation of the Social Security Act displaces our prior precedents on the issue of a presumption of continuing disability.” Id. at 1275; see also J.C., 2021 WL 5744485 at *4 (discussing Lambert); Madison L., 2021 WL 3885949 at *4 (same). Given the Ninth Circuit's holding in Lambert, the Court concludes “it must defer to the new regulations, even when they conflict with judicial precedent," and that the new regulations do not require that an ALJ articulate “clear and convincing” or “specific and legitimate” reasons for rejecting a treating physician's opinion. See Timothy Mitchell B, 2021 WL 3568209, at *5; Agans, 2021 WL 1388610, at *7. 22
2. Analysis
J.M. saw Dr. Sand regularly, and, as a result, the record contains multiple opinions and findings from Dr. Sand. A.R. 658, 1122, 1117, 1695, 1691. Where a single medical source provides multiple opinions or findings, like those of Dr. Sand, the regulations provide that an ALJ "will articulate how [the ALJ] considered the medical opinions or prior administrative medical findings from that medical source together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5)." 20 C.F.R. § 404.1520c(b)(1) (emphasis added) (explaining that “voluminous case records” necessitate source-level articulation). Accordingly, given the above, the ALJ's single statement that "the opinion of family medicine provider Dr. Sand [is] unpersuasive," must be viewed by the court as a rejection of all of Dr. Sand's findings and opinions. A.R. 28.
However, in conjunction with this issue, the parties have focused specifically on Dr. Sand's November 2019 opinion that that J.M. was capable of less than sedentary work. A.R. 1386-89; Pl.'s Mot. for Summ. J. at 7; Pl.'s Reply Br. at 4; Def.'s Cross-Mot. at 2.
The ALJ offered three reasons in support of the conclusion that Dr. Sand's opinion was unpersuasive, including that:
(1) it was not supported by objective medical evidence that demonstrated J.M. had "very mild axonal polyneuropathy;"
(2) it was not supported by objective medical evidence that revealed J.M's cirrhosis "had shown significant improvement" after a year of abstinence from alcohol; and
(3) it was inconsistent with the opinions of state agency medical consultants, Drs. Amon and Williams that J.M. could perform a range of light work.A.R. 28.
a. Nerve Conduction Study
The ALJ specifically found that J.M.'s neuropathy constituted a severe impairment that significantly limited her ability to perform basic work activities. Id. at 18. However, in rejecting J.M.'s treating physician's opinion, the ALJ cited to a single nerve conduction study conducted more than one year prior to Dr. Sand's November 2019 opinion. Id. at 28. That study confirmed 23 that J.M. suffered from "[r]ight peroneal axonal loss," and "[b]orderline conduction velocities and amplitudes for age, may be consistent with very mild axonal polyneuropathy." Id. at 1076.
The ALJ, however, failed to explain how this cryptic test result undermines Dr. Sand's November 2019 observation that J.M. was experiencing increasing and constant extremity weakness or pain and could not sit or stand longer than a few minutes due to pain. Id. at 1692, 1386. Dr. Sand's November 2019 assessment of J.M.'s neuropathy was longitudinally supported by J.M.'s medical records and testimony over the relevant period of time, including her care at Redwoods Rural Health Clinic, St. Joseph Hospital, hepatologist Dr. Wakil, and, notably, the records of Dr. Michael Fratkin (whose testimony the ALJ also found unpersuasive). See Id. at 953, 992-93, 1006, 1117. Additionally, as discussed in more detail below, Dr. Sand had an ongoing treatment relationship with J.M.
Because Dr. Sand's assessment of J.M.'s neuropathy is consistent with and supported by the record, the ALJ's determination that it was "unpersuasive" based on the single nerve conduction study is not supported by substantial evidence. See 20 C.F.R. § 416.920c(c)(1) & (2).
b. Nurse Practitioner's Observation
Again, like J.M.'s neuropathy, the ALJ specifically found that J.M.'s history of cirrhosis of the liver constituted a severe impairment that significantly limited her ability to perform basic work activities. A.R. 18. Nevertheless, the ALJ again cited to a one-time observation in the record regarding J.M.'s cirrhosis as a reason for rejecting Dr. Sand's opinion. Id. at 28. That October 2019 observation from CPMC nurse practitioner Thomas noted that J.M.'s cirrhosis had improved following her year-long abstinence from alcohol. Id. at 1622-23.
Interestingly, the nurse practitioner's observation is consistent with Dr. Sand's own September 2019 observation that J.M.'s cirrhosis had improved. Id. at 1695. However, a couple of months later, Dr. Sand's subsequent November 2019 assessment departed from his September 2019 conclusion (and that of the nurse practitioner). In November 2019, Dr. Sand found that J.M.'s cirrhosis and overall condition were "declining." Id. at 1692. This variation in Dr. Sand's findings over those few months is, in fact, consistent with J.M.'s medical records and testimony as a whole, which illustrate that her symptoms and impairments fluctuated fairly frequently. See, 24 e.g., Id. at 1125 (noting that J.M. "had some good days and many bad ones"). The improvement to J.M.'s cirrhosis, as seen by the nurse practitioner in October 2019, does not undermine the disabling nature of J.M.'s cirrhosis, which had fluctuated over time. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (ALJ may not simply “pick out a few isolated instances of improvement over a period of months or years” but must interpret “reports of ‘improvement' . . . with an understanding of the patient's overall well-being and the nature of her symptoms."); Ghanim, 763 F.3d at 1162 (ALJ should take "holistic review of the record" in evaluating medical opinions). Consequently, it does not undermine Dr. Sand's November 2019 opinion, either. Moreover, cirrhosis was only one of J.M.'s many impairments that Dr. Sand took into consideration in his November 2019 assessment. That assessment specifically accounted for J.M.'s alcoholic liver disease, neuropathy, fatigue, memory, confusion, pain, anxiety, and depression as well. A.R. 1386. Accordingly, the nurse practitioner's single notation regarding J.M.'s cirrhosis in October 2019 does not undermine Dr. Sand's overall opinion, which was supportable, consistent, and based on a treating relationship with J.M. For these reasons, the ALJ's determination that the opinion was unpersuasive based on the single nerve conduction study is not supported by substantial evidence.
c. State Agency Medical Consultants' Opinions
Finally, the ALJ cited to the January and October 2019 opinions from consulting, non-examining physicians Drs. Amon and Williams as reasons for rejecting Dr. Sand's opinions, noting that Dr. Sand's opinion was inconsistent with their opinions. Id. at 97, 140. As set forth above, Drs. Amon and Williams opined solely regarding J.M.'s RFC, concluding that she had the ability to perform light work, but was additionally limited to standing or walking for two hours in an eight-hour workday. Id. By contrast, Dr. Sand proffered that J.M. was limited to sitting and/or standing and walking for less than two hours in an eight-hour workday. Id. at 1387.
The ALJ stated simply that the opinions of Drs. Amon and Williams were persuasive because they were "supported by the objective medical evidence, which the consultant[s] had the opportunity to review, including ultrasounds of the abdomen, echocardiogram, hospitalization reports, laboratory reports . . . . [and] with the claimant's reported activities of daily living." Id. at 28. 25 It is nearly impossible, though, to ascertain the specific records and testimony to which the ALJ refers because the record is voluminous in this case and the ALJ did not provide citations to the record evidence that the ALJ found supported Drs. Amon's and William's opinions. See Id. at 28.
Moreover, contrary to Dr. Sand's opinions and records, Dr. Amon's assessment itself offers no explanation, reasoning, or citation to J.M.'s medical records in support of his conclusions regarding J.M.'s functional limitations. Id. at 97-98. Dr. William's October 2019 RFC assessment is no different. Id. at 140-41. It is therefore unclear to the court how the ALJ determined that Drs. Amon's and William's opinions were indeed "supportable," and more consistent with the record than Dr. Sand's opinion. See 20 C.F.R. §§ 404.1520(c)(1); 416.920c(c)(1) (under the supportability factor, more weight is generally accorded to medical opinions that are supported by “relevant medical evidence” and the medical source's explanation).
By contrast, Dr. Sand's November 2019 opinion regarding J.M.'s RFC was both supported and consistent with the record as a whole for all of the reasons already stated above. It was also the most recent RFC opinion in the record, was issued following examination of J.M., and was based on Dr. Sand's observations, clinical findings, and examinations that progressed over the course of one year. Accordingly, Dr. Sand's opinion was both more supportable and consistent than the opinions of Drs. Amon and Williams. See 20 C.F.R. § 416.920c(c)(1) & (2).
Alternatively, even if the opinions of Drs. Amon and Williams could be considered supported by and consistent with the record as whole, the ALJ nevertheless erred in rejecting Dr. Sand's testimony. Given that Dr. Sand's November 2019 opinion was, at a minimum, equally supportable and consistent, the ALJ was then required to consider the treatment relationship between J.M. and each of the physicians. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3) (requiring ALJ to articulate how they considered factors other than supportability and consistency, including the treatment relationship, only when they find two or more medical opinions about the same issue equally well-supported and consistent with the record).
Had the ALJ here considered the length, frequency, purpose, nature, and extent of treating relationship, the ALJ would have found that Dr. Sand's opinion was entitled to more persuasive 26 weight than those of Drs. Amon and Williams. See 20 C.F.R. § 404.1520c(c)(3)(i)-(v); see also Derek M. v.Comm'r of Soc. Sec., No. 3:20-cv-01713-AC, 2022 WL 443980 at *9 (D. Or. February 14, 2022) (treating physician's frequent appointments and relationship with claimant should have made the opinion more persuasive under 20 C.F.R. § 404.1520c(c)(3)). First, the record shows that Dr. Sand treated J.M. from December 2018 until at least November 2019 following her October 2018 hospitalization, during which J.M. had a minimum of five visits. A.R. 658, 1122, 1117, 1695, 1691. Dr. Sand's notes and opinions demonstrate that his purpose was to treat J.M. for all her impairments, both physical and mental, including those impairments that the ALJ subsequently found severe and non-severe. Id.
Dr. Sand prescribed medications and discontinued medications, monitored and treated J.M.'s pain, and reviewed tests and other records related to J.M.'s physical and mental health, including computed tomography ("CT") scans and MRIs of J.M.'s liver mass. See, e.g., Id. at 912 (prescribing medication for incontinence, decreasing dosage of Risperdal and prednisone, increasing Lactulose medication); id. at 1125 (prescribing medication for high ammonia level, recommending methadone to relieve pain); id. at 1121 (discussing recent CT of liver); id. at 1122 (adjusting gabapentin, temazepam, discussing medication that helped J.M. with "thinking and memory"). Dr. Sand also examined J.M. and was therefore able to make personal observations and assessments of the scope and extent of her impairments and symptoms. See Id. at 1705 (examining J.M. and noting that her prior jaundice had resolved and her "abdominal girth is much reduced").
By comparison, neither Dr. Amon nor Dr. Williams had a treating relationship with J.M. They did not examine J.M., and they each prepared a singular report and opinion based on their review of J.M.'s medical records. Moreover, their reports fail to cite to the specific medical evidence that supports their conclusions and findings. Id. at 97-98, 140-41.
For all of these reasons, consideration of the relevant sub-factors reveals that Dr. Sand's relationship with J.M. should have made his opinion more persuasive than those of Drs. Amon and 27 Williams. The ALJ erred in concluding otherwise. See 20 C.F.R. § 404.1520c(c)(3)(i)-(v).
The court also alternatively concludes that if it were to apply Ninth Circuit precedent in effect prior to the 2017 Revisions, for the same reasons set forth above, the ALJ failed to provide "specific and legitimate reasons" supported by substantial evidence for rejecting Dr. Sand's opinion. See Trevizo, 871 F.3d at 675.
C. Rejection of J.M.'s Symptom Testimony
In conjunction with the determination of J.M.'s RFC, the ALJ rejected J.M.'s testimony regarding the "alleged intensity, persistence, and limiting effects of [her] symptoms" as "inconsistent with the objective medical evidence." A.R. 28. The ALJ provided six reasons in support of the rejection based on "the longitudinal medical evidence:"
(1) J.M.'s motor examinations revealed normal strength;
(2) J.M.'s sensation and gait have been normal;
(3) a September 10, 2018 nerve conduction study suggested "very mild axonal polyneuropathy:"
(4) hepatologist Dr. Wakil's December 14, 2018 observation regarding J.M.'s cirrhosis;
(5) J.M.'s records did not show any mental health treatment beyond October 24, 2018; and
(6) the evidence demonstrates that [J.M.] is capable of a wide range of activities of daily living.Id. at 28, 30.
1. Legal Standards
In assessing a claimant's subjective testimony, an ALJ conducts a two-step analysis. Trevizo, 871 F.3d at 678. The ALJ must first determine “whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.' ” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant does so, and there is no affirmative evidence of malingering, then the ALJ can reject the claimant's testimony as to the severity of the symptoms “ ‘only by offering specific, clear and convincing reasons for doing so.'” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1281). These reasons must be “sufficiently specific to permit 28 the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). “General findings are insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
2. Analysis
Here, the ALJ found that “[J.M.]'s medically determinable impairments could reasonably be expected to cause the alleged symptoms” without pointing to any affirmative evidence of malingering. A.R. 25. Thus, the ALJ needed to provide “specific, clear and convincing reasons” for rejecting J.M.'s testimony concerning the intensity, persistence, and limiting effects of her symptoms. Tommasetti, 533 F.3d at 1039.
a. J.M.'s Motor Examinations, Sensations, Gait
In support of the rejection of J.M.'s symptom testimony, the ALJ asserted that the longitudinal medical evidence revealed that J.M. possessed normal strength, sensation, and gait. See A.R. 28 (citing A.R. 420, 636, 640, 698, 707, 769, 773, 1239, 1413, 1445, 1449, 1582, 1825, and 2146).
The court's review of J.M.'s extensive medical records reveals that the ALJ has, in essence, "cherry-picked" notations from several visits and hospitalizations during which J.M.'s strength, sensation, and gait were observed but were not being tested. Most, if not all, of the record citations are to observations regarding J.M.'s presentation that were secondary to the issues for which J.M. was being seen and examined. For example, the ALJ cites to an observation that J.M. had a "normal appearance" at the time she was admitted to St. Joseph Hospital in October 2018 for "liver failure management." Id. at 698, 703; see also Id. at 773 (Dr. Buntin observes "no focal motor weakness" while J.M. lies in bed during her October 2018 hospitalization); id. at 636 (St. Joseph's hospital cardiologist observes that J.M.'s "gait and stance were normal" during visit that revealed an enlarged liver and jaundiced skin and resulted in J.M.'s referral to the emergency room and subsequent hospitalization). Additionally, several of the citations are to medical records of questionable relevance that pre-dated J.M.'s September 30, 2016, onset date and the bulk of other medical records in her case. See Id. at 1582 (University of California San Diego doctor's note shows "normal gait" during June 2011 treatment for sexually transmitted disease, insomnia, and 29 anxiety); id. at 1445, 1449 (October 2015 doctor's notes observing normal strength and gait at follow-up visit post-hospitalization for uterine fibroids and menorrhagia).
Furthermore, the ALJ failed to clearly and convincingly explain how the cited medical evidence was inconsistent with J.M.'s testimony regarding her fatigue, pain, soreness, and neuropathy. Id. at 52, 55, 307, 309, 351, 353, 355. Because the ALJ improperly “cherry-picked” the evidence regarding J.M.'s strength, gait, and sensation, and has failed to identify how such instances are inconsistent with J.M.'s testimony, these instances do not provide specific, clear, and convincing reasons for rejecting J.M.'s symptom testimony. See Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017) (improper for ALJ to "cherry-pick" absence of certain symptoms from medical evidence as opposed to undertaking a "broader development" of the evidence in its entirety).
b. Nerve Conduction Study
The ALJ also cites to the same nerve conduction study referenced above in rejecting J.M.'s symptom testimony as the ALJ did in rejecting testimony from J.M.'s treating physician, Dr. Sand. A.R. 28, 1076 (diagnosing J.M. with "[r]ight peroneal axonal loss," and "[b]orderline conduction velocities and amplitudes for age, may be consistent with very mild axonal polyneuropathy"). The ALJ does not, however, explain how that single, isolated test result from September 2018, id. at 1076, undermines J.M.'s own testimony regarding her neuropathy or the other overwhelming medical evidence of J.M.'s neuropathy in the record. See Id. at 57-59, 992-93, 1006, 953, 1117. Accordingly, viewing the record as a whole, the ALJ's citation to this isolated test result is not a clear and convincing reason to discredit J.M.'s symptom testimony. See Garrison, 759 F.3d at 1017-18 (noting that “symptoms wax and wane in the course of treatment").
c. Dr. Wakil's December 14, 2018, Opinion
The ALJ additionally cites to a December 14, 2018, note from Dr. Wakil, an examining hepatologist following J.M.'s October 2018, hospitalization, in which Dr. Wakil stated that he could "not say if [J.M.] has cirrhosis or not," noting improvement since J.M. had stopped drinking alcohol. A.R. 953. However, as noted above, during the same visit, Dr. Wakil also opined that J.M. suffered from "advanced liver fibrosis," "significant underlying chronic liver disease," and 30 painful neuropathy that may not resolve over time. Id.
Again, here, the ALJ engaged in "cherry-picking" both from the record as a whole and from Dr. Wakil's singular December 2018, assessment. As discussed above regarding Dr. Sand's testimony, the overall medical records and testimony clearly demonstrate that J.M.'s cirrhosis "waxed and waned" over the years. See, e.g., Id. at 1125 (noting that J.M. "had some good days and many bad ones"); id. at (September 2019 observation noting that J.M.'s cirrhosis had improved). "Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances, it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017. The medical record cited by the ALJ does not provide substantial evidence for discrediting J.M.'s description of her symptoms, especially since cirrhosis was only one of many severe impairments from which J.M. suffered. A.R. 18. The ALJ was required to view Dr. Wakil's statement regarding J.M.'s cirrhosis in a broader context, and in failing to do so, did not articulate a clear and convincing reason for rejecting J.M.'s symptom testimony. See Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (holding that the ALJ “must interpret reports of improvement . . . with an understanding of the patient's overall well-being and the nature of her symptoms.”).
d. Post- October 24, 2018 Mental Health Treatment
The ALJ also rejected J.M.'s symptom testimony as pertained to depression and anxiety based on the absence of treatment notes after she was discharged from the hospital on October 24, 2018. A.R. 28. This is a mischaracterization, though, of J.M.'s mental health treatment. In fact, the ALJ actually noted that J.M. had been prescribed medications to treat her mental health impairments, including Effexor, Ativan, and Lorazepam, id. at 26, and that she "responded well to psychiatric medications prescribed by her primary care doctor." Id. at 30. Moreover, J.M. appears to have indeed received mental health treatment from palliative care treating physician, Dr. Sand regularly following her October 18, 2018 hospitalization, as evidenced by several treatment notes discussing J.M.'s problems, progress, and medications. See Id. at 909-11 (December 10, 2018 treatment notes); id. at 1117 (June 18, 2019 letter); id. at 1695 (September 11, 2019 treatment 31 note).
Furthermore, the ALJ's reason does not constitute a clear and convincing reason for rejecting J.M.'s symptom testimony under Ninth Circuit law. "Conservative medical treatment can only be used as a basis for discounting a claimant's testimony where the ALJ identifies the more aggressive treatment options that were available and appropriate and considers the reasons the claimant did not pursue more aggressive treatment.” Robert M. v. Saul, No. 20-CV-03481-JSC, 2021 WL 2651363, at *5 (N.D. Cal. June 28, 2021) (citing Lapeirre-Gutt v. Astrue, 382 Fed.Appx. 662, 664 (9th Cir. 2010) ("[A]n ALJ errs in relying on conservative treatment if the record does not reflect that more aggressive treatment options are appropriate or available.”); see also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal citations and quotation marks omitted) (“[A]n adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.”). "The Ninth Circuit has repeatedly and particularly criticized the use of a lack of treatment to reject mental complaints both because mental illness is ‘notoriously underreported' and because ‘it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.' ” Sababu v. Colvin, No. 14-cv-05139-DMR, 2016 WL 1110264, at *9 (N.D. Cal. Mar. 22, 2016) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)).
The ALJ accordingly erred by discrediting J.M.'s testimony on this ground.
e. Activities of Daily Living
The ALJ did not explicitly reference J.M.'s daily activities in the laundry list of reasons for rejecting J.M.'s symptom testimony. A.R. 28. However, in assessing J.M.'s RFC, the ALJ implicitly rejected her testimony in concluding that "the evidence demonstrates [J.M.] is capable of a wide range of activities of daily living." Id. at 30. Both parties assume this constitutes an additional reason for the ALJ's rejection of J.M.'s testimony. Pl. Mot. for Summ. J. at 15-16; Def. Cross-Mot. for Summ. J. at 5. 32
“[I]nconsistencies . . . between [a claimant's] testimony and [her] conduct [or] daily activities” is a legitimate factor “in weighing a claimant's credibility.” Orn, 495 F.3d at 636. Daily activities can only be relied upon by the ALJ, though, “if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.” Id. at 639. “The ALJ must make specific findings relating to the daily activities and their transferability.” Id. In addition, the Ninth Circuit has "repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016; see also Smolen, 80 F.3d at 1284 n.7 (“The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits.”).
Here, the ALJ failed to identify specific record evidence and explain how it undermined J.M.'s largely consistent testimony about the impact of her impairments on her ability to work. J.M.'s testimony established that her daily activities were actually quite limited and inconsistent with work. She testified that she rarely leaves the house more than once or twice a week due to her pain and nausea; that she needs someone to drive her and guide her when she is out of the house; and that after leaving the house for a doctor visit, she often returns home and will need to stay in bed for days to recover from the outing. A.R. 353-44, 52, 55; see also Id. at 1110 (examining consultative psychologist Dr. Bowerman's description of J.M.'s daily schedule and limitations). She was also consistent in describing that her illness "takes over," and that sometimes she is only able to work for minutes on household chores before needing to rest. Id. at 51, 52-53, 59, 307, 351, 353.
The Ninth Circuit has made clear that an ALJ must specifically identify which testimony they found not credible, and why. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The ALJ failed do so here with respect to J.M.'s daily activities. Moreover, "[t]he ability to talk on the phone, prepare meals once or twice a day, occasionally clean one's room, and, with significant assistance, care for one's daughter, all while taking frequent hours-long rests, avoiding any heavy 33 lifting, and lying in bed most of the day, is consistent with the pain" that may nevertheless render a claimant like J.M. disabled. Garrison, 759 F.3d at 1016.
In sum, the ALJ's rejection of J.M.'s symptom testimony was not supported by the substantial weight of evidence.
D. ALJ's Determination of Severe Impairments at Step Two
J.M. also argues that the ALJ erred in failing to find that multiple additional impairments were "severe" at step two, including her: (1) hepatic encephalopathy; (2) chronic fecal/bladder incontinence; (3) end stage liver disease; (4) decreased memory/mental function due to ammonia levels; and (5) fatigue and muscle pain. As noted above, at step two, the ALJ determined that J.M.'s neuropathy, cirrhosis of the liver, depression, and generalized anxiety constituted severe impairments. A.R. 18-21.
J.M. concedes that this issue is moot if the court determines that a remand for an award of benefits is an appropriate remedy based on ALJ error regarding one of the preceding issues. Pl. Mot. for Summ. J. at 16. The Commissioner does not disagree. See Def. Cross-Mot. for Summ. J. at 6 (suggesting that any error in characterizing impairments as "severe" versus "non-severe" at step two was nevertheless harmless because the ALJ considered all of the impairments challenged above in assessing J.M.'s RFC at step four).
Because the Court concludes that the ALJ erred in rejecting Dr. Sand's opinion and J.M.'s testimony and that, for the reasons set forth below, the appropriate remedy is remand for an award of benefits, the Court agrees that this issue is moot and declines to reach it on this basis.
E. Remedy
“A district court may affirm, modify, or reverse a decision by the Commissioner ‘with or without remanding the cause for a rehearing.'” Garrison, 759 F.3d at 1019 (quoting 42 U.S.C. § 405(g)) (emphasis omitted). “If additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). On the other hand, the court may remand for award of benefits under the “credit as true” rule where: (1) “the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;" (2) “there are [no] 34 outstanding issues that must be resolved before a disability determination can be made” and “further administrative proceedings would [not] be useful;" and (3) “on the record taken as a whole, there is no doubt as to disability.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (citations and internal quotation marks omitted); see also Garrison, 759 F.3d at 1021 (holding that a district court abused its discretion in declining to apply the “credit as true” rule to an appropriate case). The “credit-as-true” rule does not apply “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, or when “there is a need to resolve conflicts and ambiguities.” Treichler, 775 F.3d at 1101.
J.M. argues that an award for benefits is warranted if the court credits either Dr. Sand's opinion or J.M.'s testimony. The Commissioner, on the other hand, contends that remand is appropriate because the record raises "serious doubt" of disability. The court disagrees with the Commissioner and awards benefits under the credit-as-true rule.
First, for the reasons set forth above, the ALJ failed to provide legally sufficient reasons for rejecting Dr. Sand's opinion and J.M.'s symptom testimony. Second, “there are [no] outstanding issues that must be resolved before a disability determination can be made” and “further administrative proceedings would [not] be useful.” Garrison, 759 F.3d at 1021. At the hearing, the VE testified that an individual who possessed the limitations assessed by Dr. Sand in November 2019, and testified to by J.M. "would not be employable." See A.R. 1386-89 (Dr. Sand's assessment); id. at 81-82 (March 3, 2020 hearing transcripts). Specifically, the VE testified that "add[ing] the need for unscheduled breaks and absences to [either a light work or sedentary work hypothetical where] unscheduled breaks and absences amount[ed] to twenty percent of work time as being lost," would render one unemployable. Id. at 81. He explained that typically: "[E]mployers will [allow] a ten percent diminishment of ability to remain on task. And that's based on unforeseen emergencies, personal fatigue ..... Once you go past that, it's my opinion that you would not be employable in the unskilled entry-level job base." Id.
Finally, “on the record taken as a whole, there is no doubt as to disability.” Garrison, 759 F.3d at 1021. J.M.'s testimony and Dr. Sand's opinion, when credited as true, strongly suggest that 35 J.M. would miss twenty percent of work, a marker that the VE testified made her unemployable. J.M. attested in her Adult Function Reports and at her March 2020 hearing that she is unable to work a full-time job because of her inability to show up consistently for work due to the pain, fatigue, and nausea. A.R. 312, 351, 358, 51, 64. She stated that she often is bedridden for days after leaving home for doctor appointments, and, as a result, she leaves home on a very infrequent basis. Id. at 308, 309, 354, 358, 52, 55. Consistent with J.M.'s testimony, Dr. Sand opined that she would need an unscheduled break from sitting or standing every fifteen minutes due to chronic fatigue, pain, and the adverse effects of her medication. Id. at 1387. He further opined that she would be able to sit and stand or walk less than two hours per day, and that she was "incapable of even low stress work." Id. at 1387, 1389. That November 2019 functional assessment was consistent with Dr. Sand's earlier June 2019 opinion. Id. at 1117.
Carefully considering the record as a whole, the court has no "serious doubt" that J.M. is in fact disabled. See Garrison, 759 F.3d at 1021; see also Revels v. Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (explaining that where each of the credit-as-true factors is met, only in “rare instances” does the record as a whole leave “serious doubt as to whether the claimant is actually disabled”). Accordingly, the Court exercises its discretion and credits the erroneously discredited evidence as true and remands this case for an immediate calculation and payment of benefits.
V. CONCLUSION
For the reasons discussed above, J.M.'s motion is GRANTED, the Commissioner's motion is DENIED, and the Commissioner's final decision that Plaintiff was not disabled is REVERSED and REMANDED for an immediate calculation and award of benefits. The Clerk is instructed to enter judgment accordingly and close the file.
IT IS SO ORDERED. 36