(SS) Radovska v. Commissioner of Social Security

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 RAYISA RADOVSKA, No. 2:18-cv-02578 CKD 12 Plaintiff, 13 v. ORDER & 14 ANDREW SAUL, Commissioner of Social FINDINGS AND RECOMMENDATIONS Security, — 15 — Defendant. — 16 — — 17 — 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). For the reasons discussed below, the undersigned 21 Magistrate Judge will recommend that plaintiff’s motion for summary judgment’s be granted and 22 the Commissioner’s cross-motion for summary judgment be denied. 23 BACKGROUND 24 Plaintiff, born in 1962, applied on March 24, 2015 for SSI, alleging disability beginning 25 April 2, 2014. Administrative Transcript (“AT”) 16, 249. Plaintiff alleged she was unable to 26 work due to back pain with history of spine trauma fracture, degenerative disc disease, 27 depression, insomnia, anxiety, headaches, chest pains, and right hand numbness. AT 110-111. In — 28 — 1 a decision dated September 8, 2017, the ALJ determined that plaintiff was not disabled.1 AT 162 23. The ALJ made the following findings (citations to 20 C.F.R. omitted): 3 1. The claimant has not engaged in substantial gainful activity since March 24, 2015, the application date. — 4 — 2. The claimant has the following severe impairments: migraine, 5 depressive disorder and posttraumatic stress disorder. 6 3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed 7 impairments in 20 CFR Part 404, Subpart P, Appendix 1. 8 4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 9 a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot work at heights or — 10 — 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the — 11 — Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to 12 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically 13 determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423 (d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. 14 See 20 C.F.R. §§ 404.1520 , 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142 , 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: — 15 — Step one: Is the claimant engaging in substantial gainful — 16 — activity? If so, the claimant is found not disabled. If not, proceed to step two. — 17 — Step two: Does the claimant have a “severe” impairment? If — 18 — so, proceed to step three. If not, then a finding of not disabled is appropriate. — 19 — Step three: Does the claimant’s impairment or combination — 20 — of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined — 21 — disabled. If not, proceed to step four. — 22 — Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. — 23 — Step five: Does the claimant have the residual functional — 24 — capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. — 25 — Lester v. Chater, 81 F.3d 821 , 828 n.5 (9th Cir. 1995). — 26 — 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the 28 burden if the sequential evaluation process proceeds to step five. Id. 1 around moving machinery, cannot climb ladders, ropes or scaffolds, can understand, remember and carry out detailed and simple job tasks 2 and instructions and interact appropriately with others. 3 5. The claimant is capable of performing past relevant work as a home attendant. This work does not require the performance of work4 related activities precluded by the claimant’s residual functional capacity. — 5 — 6. The claimant has not been under a disability, as defined in the 6 Social Security Act, since March 24, 2015, the date the application was filed. — 7 — 8 AT 18-23. 9 ISSUES PRESENTED 10 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 11 disabled: (1) The residual functional capacity is not supported by substantial evidence; (2) The 12 ALJ improperly discounted plaintiff’s subjective symptom testimony; and (3) the ALJ improperly 13 discounted third-party lay witness testimony. 14 LEGAL STANDARDS 15 The court reviews the Commissioner’s decision to determine whether (1) it is based on 16 proper legal standards pursuant to 42 U.S.C. § 405 (g), and (2) substantial evidence in the record 17 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 18 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 19 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 20 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 21 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 22 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 23 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 24 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 25 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 26 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 27 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 28 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 1 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 2 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 3 administrative findings, or if there is conflicting evidence supporting a finding of either disability 4 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226 , 5 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 6 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 7 ANALYSIS 8 Before turning to plaintiff’s claims, the undersigned notes the following background facts: 9 Plaintiff came to the United States in 2004, after working for nine years as a bookkeeper 10 and cashier for a construction company in the Ukraine. AT 97-98, 244. In 2008, a California 11 State administrative law judge found plaintiff disabled as of September 2007, based on chronic 12 headaches and ongoing depression, and eligible for the Cash Assistance Program for Immigrants 13 (CAPI). AT 343-353. 14 At plaintiff’s June 2017 hearing on her disability application, she testified that she 15 suffered a stroke “eight years ago,” or 2009. AT 98. In December 2010, treating physician Dr. 16 Susan Andrews filled out a medical certification form for plaintiff’s naturalization application, 17 stating that plaintiff had “posttraumatic stress disorder and traumatic brain injury after a stroke in 18 2006.”2 AT 576-577. Based on this certification, plaintiff obtained an exception to the English 19 and civics testing requirements for naturalization “because of physical or developmental disability 20 or mental impairment.” AT 575-579. Plaintiff became a naturalized citizen in 2011. AT 244. 21 Beginning that year, plaintiff worked as an in-home caregiver and took care of her father 22 until his death in April 2014. AT 98, 270-271. 23 A. Credibility 24 Plaintiff asserts that the ALJ improperly discounted her subjective symptom allegations. 25 Specifically, the ALJ discounted plaintiff’s allegations of “functionally limiting headaches” and 26 “impaired psychological functioning.” AT 22. — 27 — 2 Plaintiff’s brief asserts the stroke occurred in 2007. (ECF No. 13 at 2, 4.) — 28 — 1 The ALJ determines whether a disability applicant is credible, and the court defers to the 2 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 3 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 4 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. 5 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be 6 supported by “a specific, cogent reason for the disbelief”). 7 In evaluating whether subjective complaints are credible, the ALJ should first consider 8 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341 , 9 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 10 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 11 treatment and functional restrictions. See id. at 345-47 . The ALJ also may consider: (1) the 12 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 13 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 14 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 15 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483 -01; SSR 95-5P, 60 FR 55406 - 16 01; SSR 88-13. Work records, physician and third party testimony about nature, severity and 17 effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. 18 Light v. Social Security Administration, 119 F.3d 789 , 792 (9th Cir. 1997). A failure to seek 19 treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ 20 in determining whether the alleged associated pain is not a significant nonexertional impairment. 21 See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, 22 on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 23 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172 , 177 n.6 24 (9th Cir. 1990). “Without affirmative evidence showing that the claimant is malingering, the 25 Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” 26 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595 , 599 (9th Cir. 1999). 27 At the June 2017 hearing, plaintiff testified that she got two or three hours of sleep a night 28 and suffered daily headaches. AT 99. She testified that medication helped with the severity of 1 her headaches, which were brought on by noise and worry and were “there all the time.” AT 992 100. Plaintiff testified that she had to lie down multiple times a day, every day, due to her 3 headaches. AT 100-101. Plaintiff further testified that medication helped with her depression, 4 but that she still got upset “frequently” and had weekly panic attacks that lasted up to six hours. 5 AT 103. Plaintiff also testified that she had problems with memory and concentration, such as 6 forgetting where she put things in the house. AT 105-106; see AT 22 (ALJ’s summary of 7 plaintiff’s subjective symptoms, including “constant headaches, anxiety, depression . . . [and] 8 difficulty remembering, completing tasks, concentrating, following instructions, managing stress, 9 and adapting to changes in routine.”). 10 As to plaintiff’s headaches, the ALJ wrote: 11 The medical evidence does not support the claimant’s allegations of functionally limiting headaches. For example, emergency room 12 records were negative for dizziness and double vision, although the claimant endorsed photophobia.3 Subsequent medical records also 13 showed that the claimant denied loss of consciousness, memory loss and nausea.4 There is no evidence of headaches occurring at a 14 frequency or severity to prevent work activities. She has not sought frequent emergency or urgent care for headaches and there is no 15 mention that she presents to her doctor appointments impaired due to headaches. Thus, the undersigned finds that a limitation to avoid 16 heights, dangerous machinery, and climbing would accommodate any intermittent headache. — 17 — 18 AT 22. 19 During the relevant period between April 2014 and September 2017, plaintiff presented to 20 medical providers with headaches in April 2014, where she was prescribed Motrin and reported 21 her symptoms as improved one week later. AT 372-374, 410. In November 2014, she presented 22 with worsening daily headaches “aggravated by anxiety and bright lights. Relieving factors 23 include darkness. Associated symptoms include nausea, neck stiffness and photophobia.” — 24 — 25 3 Citing AT 373-374 (April 2014 emergency room note diagnosing plaintiff with migraine one week after her father’s funeral; exam showed photophobia but no double vision or dizziness). — 26 — 27 4 Citing AT 435 (February 2015 medical note stating that plaintiff had had recurring headaches for five years; symptoms were relieved by over-the-counter medication; and plaintiff did not 28 report symptoms like loss of consciousness, memory loss, or nausea). 1 Plaintiff’s physical and mental exams were normal. AT 426-427. In February 2015, plaintiff 2 complained of recurring headaches of moderate severity, “symptoms . . . relieved by OTC meds.” 3 AT 431. A March 2015 CT scan of plaintiff’s brain was unremarkable. AT 502-503. In 4 subsequent medical visits, plaintiff did not present with headaches, though headaches were noted 5 as a chronic problem. AT 494-499, 548-554, 559-561, 564-568. 6 As to plaintiff’s mental symptoms, the ALJ wrote: 7 Similarly, the medical evidence does not support the claimant’s allegations of impaired psychological functioning. For example, 8 mental status examination notes reveal that the claimant was oriented to all spheres, demonstrated sufficient fund of knowledge and denied 9 mood swings, obsessive thoughts and paranoia. Physician’s notes also indicated that the claimant did not exhibit flight of ideas or 10 pressured speech and exhibited normal judgment, attention, and concentration.5 The claimant also denied personality changes and 11 sleep walking.6 Mental health records revealed that the claimant was stable.7 During the consultative examination, the claimant stated that 12 she did not have anxiety symptoms that would warrant a diagnosis.8 Recent medical records revealed that the claimant denied anxiety, 13 depression, insomnia, and anhedonia. 14 Additionally, the claimant registered a global assessment of functioning (GAF) sore of 51-60 . . . [indicating] merely moderate 15 symptoms[.]9 — 16 — AT 22-23. — 17 — As to plaintiff’s alleged mental impairments, the ALJ cited a November 25, 2014 medical — 18 — exam in which she was found to have normal orientation, judgment, attention span, concentration, — 19 — 20 5 Citing AT 426-427. 21 6 Citing AT 426. — 22 — 7 Citing AT 460 (April 2015 progress note stating that plaintiff was “overall doing well” and 23 “stable”). 24 8 Citing AT 514. 25 9 Citing AT 447. GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Diagnostic and Statistical — 26 — Manual of Mental Disorders at 34 (4th ed. 2000) (“DSM IV-TR”). A GAF of 51-60 indicates 27 moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school function (e.g., few friends, conflicts with 28 peers or co-workers). 1 memory loss, and fund of knowledge. AT 427. Plaintiff denied personality changes and 2 sleepwalking, as the ALJ noted. AT 426. The November 25, 2014 report also states that plaintiff 3 was “experiencing depression [and] difficulty concentrating,” a note apparently based on 4 subjective statements but consistent with her claim of psychological impairment. The ALJ next 5 cited a June 2015 comprehensive psychiatric evaluation in which plaintiff reported depression but 6 denied any significant anxiety. AT 514. The examiner’s mental status exam assessed plaintiff’s 7 mood as depressed; however, her thought process, thought content, cognition, orientation, 8 concentration, attention span, insight, and judgment were normal. AT 516-517. 9 As to plaintiff’s subjective symptoms of headaches and psychological impairment, the 10 ALJ continued: 11 Moreover, the claimant has been prescribed and taken appropriate medications for the alleged impairments, which weighs in the 12 claimant’s favor, but the medical records reveal that the medications have been relatively effective in controlling the claimant’s 13 symptoms. Specifically, mental health records revealed that the claimant’s mood had improved with medication.10 Additional 14 records revealed that the claimant was doing well overall.11 — 15 — 16 After the above discussion, the ALJ concluded that “the medical evidence does not 17 support the claimant’s allegations or allegations of supporting third parties.” AT 23. As the cited 18 records show that plaintiff’s headaches were reasonably controlled with over-the-counter 19 medication, that she had numerous normal mental status findings, and that her depression had 20 improved on medication, the undersigned finds no error in the ALJ’s determination that plaintiff’s 21 allegedly debilitating symptoms were less than fully credible. 22 //// 23 //// — 24 — 10 Citing AT 537 (February 2017 note that plaintiff’s mood was “less depressed” and had — 25 — improved with medication). — 26 — 11 Citing AT 545 (April 2015 note that plaintiff was “stable” and “overall doing well”); see also 27 AT 480 (September 2015 note that plaintiff said medication helped with depression and she was “emotionally coping” with bereavement); AT 542 (November 2015 notes that plaintiff’s mood 28 was “ok” and she was “doing well on meds” for depression and PTSD). 1 B. Lay Witness Testimony 2 Plaintiff claims that the ALJ improperly discounted the lay witness testimony of her adult 3 son, Artur Radovsky, who completed a third party function report in May 2015. AT 281-288. 4 Radovsky stated that plaintiff complained of “constant debilitating headaches that prevent her 5 from functioning mentally” and was “depressed and anxious.” AT 281. He reported that she 6 lacked motivation due to her depression, forgot things easily, and had difficulty with spoken 7 instructions, though she could follow written instructions. AT 281-286. Mr. Radovsky indicated 8 that plaintiff’s impairments affected numerous physical and mental abilities, including memory, 9 completing tasks, and concentration. AT 286; see AT 22 (ALJ’s summary of third party function 10 report). 11 The ALJ weighed the report as follows: “Mr. Radovsky’s lay opinion cannot be afforded 12 significant weight because it, like the claimant’s, is simply not consistent with the preponderance 13 of the opinions and observations by medical doctors in this case.” AT 22; see also AT 23. 14 “[L]ay witness testimony as to a claimant’s symptoms or how an impairment affects 15 ability to work is competent evidence, and therefore cannot be disregarded without comment.” 16 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); see also Dodrill v. Shalala, 12 F.3d 915 , 17 918-19 (9th Cir. 1993) (friends and family members in a position to observe a plaintiff's 18 symptoms and daily activities are competent to testify to condition). “If the ALJ wishes to 19 discount the testimony of the lay witnesses, he must give reasons that are germane to each 20 witness.” Dodrill, 12 F.3d at 919 . 21 Here, the ALJ found Mr. Radovsky’s testimony less than fully credible for the same 22 reasons he found plaintiff’s testimony less than credible. Like plaintiff, Mr. Radovsky described 23 multiple debilitating physical and mental symptoms, a portrait the ALJ found inconsistent with 24 medical evidence of improved mental symptoms on medication and little evidence of disabling 25 physical impairments other than migraines. See AT 18-19, 22-23. These reasons – discussed as 26 to plaintiff’s credibility and referenced in connection with Mr. Radovsky’s similar testimony – 27 were sufficient to discount Mr. Radovsky’s credibility. See Valentine v. Comm’r, 574 F.3d 685 , 28 694 (9th Cir. 2009) (where ALJ provided sufficient reasons for rejecting claimant’s own 1 testimony, “it follows that the ALJ also gave germane reasons for rejecting” similar testimony of 2 lay witness). The undersigned finds no error on this basis. 3 C. Residual Functional Capacity 4 Plaintiff asserts that the RFC does not account for her headaches and psychological 5 impairments, and is not supported by substantial evidence. 6 Social Security Ruling 96-8p sets forth the policy interpretation of the Commissioner for 7 assessing residual functional capacity. SSR 96-8p. Residual functional capacity is what a person 8 “can still do despite [the individual’s] limitations.” 20 C.F.R. §§ 404.1545 (a), 416.945(a) (2003); 9 see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity 10 reflects current “physical and mental capabilities”). RFC is assessed based on the relevant 11 evidence in the case record, including the medical history, medical source statements, and 12 subjective descriptions and observations made by the claimant, family, neighbors, friends, or 13 other persons. 20 C.F.R. §§ 404.1545 (a)(1), 404.1545(a)(3). When assessing RFC, the ALJ must 14 consider the claimant’s “ability to meet the physical, mental, sensory, and other requirements of 15 work[.]” 20 C.F.R. §§ 404.1545 (a)(4). 16 Here, plaintiff’s RFC included no physical limitations and the following non-exertional 17 limitations: “the claimant cannot work at heights or around moving machinery; cannot climb 18 ladders, ropes or scaffolds; can understand, remember and carry out detailed and simple job tasks 19 and instructions and interact appropriately with others.” AT 20. Thus the only mental functional 20 limitation was to preclude plaintiff from complex tasks. See AT 108 (ALJ’s hypothetical 21 question to vocational expert included limitation on complex tasks, but assumed claimant “could 22 maintain concentration, persistence, and pace for simple and detailed job instructions” and “could 23 interact with supervisors, coworkers, and the public.”). 24 Plaintiff first argues that this RFC is inconsistent with her 2007 stroke and the 2008 state 25 decision that plaintiff was eligible for CAPI benefits due to chronic headaches and depression. 26 However, the alleged onset disability date in this matter was April 2, 2014, such that the 2008 27 state assessment has little relevance. As for plaintiff’s stroke, the ALJ found that “the medical 28 record does not evidence any significant treatment for this impairment. Such absence of 1 diagnostic findings or continuing treatment, suggests that this impairment does not cause any 2 functional limitations in the claimant’s ability to perform work and thus, is nonsevere.” AT 19. 3 Rather than speculating about the extent to which plaintiff’s problems may have been caused by a 4 stroke seven years before the alleged onset date, the undersigned focuses on the record during the 5 alleged period of disability. 6 The most notable issue with the RFC is that it does not include any mental limitations 7 except a preclusion from complex tasks. Earlier in the decision, the ALJ found plaintiff to have 8 the severe impairments of depressive disorder and posttraumatic stress disorder, along with 9 migraines (discussed below). AT 18. Factoring in plaintiff’s daily activities and the opinion of 10 psychiatric consultative examiner Dr. Ryan Gunton, the ALJ concluded that 11 the claimant has (1) moderate limitations in her ability to understand, remember, or apply information; (2) mild limitation in her ability to 12 interact with others; (3) moderate limitation in her ability to concentrate, persist, or maintain pace and (4) mild limitation in her 13 ability to adapt or manage oneself. 14 AT 19-20; see also AT 21 (“Consultative psychologist, Ryan Gunton, Ph.D. opined that the 15 claimant had mild to moderate limitations in her ability to maintain regular attendance, complete 16 a normal workday/workweek and handle normal work-related stress.12 Dr. Gunton’s opinion is 17 persuasive because it is consistent with the examination findings and the medical evidence as a 18 whole.”). 19 The ALJ gave Dr. Gunton’s opinion significant weight, crediting portions of the opinions 20 of two state agency consultants because their opined restrictions “were consistent with the 21 findings of Dr. Gunton” and rejecting the portions of those opinions that diverged from Dr. 22 Gunton’s report.13 AT 21. However, the RFC does not include limitations opined by Dr. Gunton. 23 At his June 2015 comprehensive psychiatric evaluation of plaintiff, Dr. Gunton concluded in part: 24 With ability to maintain regular attendance in the workplace the claimant is mild to moderately limited due to a depressed mood that — 25 — 12 Citing AT 514-519. — 26 — 27 13 The ALJ also rejected the opinions of treating physician Dr. Rappaport and former treating physician Dr. Anderson, who opined that plaintiff had problems with concentration, attention 28 span, memory, and cognitive functioning. AT 21. 1 causes her to isolate. 2 With ability to complete a normal workday or workweek and staying consistent with adequate pace and productivity without interruptions 3 from a psychiatric condition the claimant is mild to moderately limited due to a depressed mood that causes her to become 4 overwhelmed lack motivation and isolate. 5 With ability to handle normal work related stress from a competitive work environment the claimant mild to moderately limited due to a 6 depressed mood that causes her to become overwhelmed lack motivation and isolate. — 7 — 8 AT 517. Dr. Gunton further opined that plaintiff’s “mental health symptoms may be chronic in 9 nature” and “are likely to significantly impact her social or occupational functioning.” AT 517. 10 Dr. Gunton concluded that plaintiff’s prognosis was fair “with continued mental health and 11 supportive services.” AT 517. 12 Though the ALJ marshalled evidence that plaintiff’s mental health symptoms had 13 improved with treatment, discussed above, his decision did not give specific and legitimate 14 reasons for discounting the mental limitations opined by Dr. Gunton and reflected, to some 15 degree, throughout the record, even if plaintiff’s and her son’s statements were not afforded full 16 credibility. For example, the ALJ cited plaintiff’s GAF score of 51-60, which indicates moderate 17 mental symptoms or some difficulty in social, occupational, or school functioning. AT 23. Yet 18 this assessment is neither discounted for any reason, nor reflected in the RFC. 19 The ALJ’s decision does not sufficiently explain the absence of mental limitations in the 20 RFC, given plaintiff’s severe impairments of PTSD and depression and her history of both self21 reported and medically-determined mental impairment. See Brown-Hunter v. Colvin, 806 F.3d 22 487, 495 (9th Cir. 2015) (“Although the ALJ’s analysis need not be extensive, the ALJ must 23 provide some reasoning in order for us to meaningfully determine whether the ALJ’s conclusions 24 were supported by substantial evidence.” 775 F.3d at 1103 (internal citation omitted).” Where 25 “the agency’s path cannot be reasonably discerned,” reversal of an ALJ’s determination is 26 warranted. Id. (internal citation omitted). 27 Similarly, it is not clear how the RFC addresses plaintiff’s severe impairment of migraines 28 by precluding working at heights or around moving machinery, and climbing ladders, ropes, or 1 scaffolds. Plaintiff’s migraine symptoms did not include dizziness, double vision, or loss of 2 consciousness, such as might relate to these restrictions. See AT 373-374, 435. Rather, as noted 3 above, her chronic headaches were “aggravated by anxiety and bright lights” and relieved by 4 darkness and over-the-counter medication. If her subjective testimony is credited to any extent, 5 they were also relieved by lying down. At the least, the ALJ must explain how a functional 6 limitation relates to the impairment it is meant to address, if the relationship is not obvious. 7 For the foregoing reasons, the undersigned concludes that the RFC is not supported by 8 substantial evidence, constituting reversible error. 9 CONCLUSION 10 With error established, the court has the discretion to remand or reverse and award 11 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 12 under the “credit-as-true” rule for an award of benefits where: 13 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 14 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 15 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. — 16 — 17 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 18 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 19 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 20 the meaning of the Social Security Act.” Id. at 1021 ; see also Dominguez v. Colvin, 808 F.3d 21 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative 22 proceedings would serve no useful purpose, it may not remand with a direction to provide 23 benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 24 2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the 25 proper approach is to remand the case to the agency.”). 26 Here, the record as a whole creates serious doubt as to whether plaintiff was disabled 27 during the relevant period. On remand, the ALJ is free to develop the record as needed, including 28 asking a vocational expert hypothetical questions about available jobs based on a revised RFC. 1 | The court expresses no opinion regarding how the evidence should ultimately be weighed, and 2 || any ambiguities or inconsistencies resolved, on remand. The court also does not instruct the ALJ 3 | to credit any particular opinion or testimony. The ALJ may ultimately find plaintiff disabled 4 | during the entirety of the relevant period; may find plaintiff eligible for some type of closed 5 | period of disability benefits; or may find that plaintiff was never disabled during the relevant 6 || period, provided that the ALJ’s determination complies with applicable legal standards and is 7 | supported by the record as a whole. 8 Thus, the undersigned recommends that this matter be remanded under sentence four of 9 | 42 U.S.C. § 405 (g) for further administrative proceedings. 10 IT IS HEREBY ORDERED that the Clerk of Court shall assign a district judge to this 11 action. 12 For the reasons stated herein, IT IS HEREBY RECOMMENDED that: 13 1. Plaintiffs motion for summary judgment (ECF No. 13) be granted; 14 2. The Commissioner’s cross-motion for summary judgment (ECF No. 16) be denied; 15 3. This matter be remanded for further proceedings consistent with these findings and 16 || recommendations. 17 These findings and recommendations are submitted to the United States District Judge 18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within fourteen days 19 | after being served with these findings and recommendations, any party may file written 20 | objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 23 | Yist, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: January 13, 2020 Ci dp. f | fe 25 CAROLYN K DELANEY 26 UNITED STATES MAGISTRATE JUDGE 27 || 2/tadovska2578..ssi.ckd_f&rs — 28 — — 14 —