(SS) Isiah v. Commissioner of Social Security

[7] UNITED STATES DISTRICT COURT [8] EASTERN DISTRICT OF CALIFORNIA [10] JOANNA ISIAH, Case No. 1:18–cv–01726–SKO [11] Plaintiff, [12] v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT ANDREW SAUL, 14 Commissioner of Social Security,1 15 Defendant. (Doc. 1) [16] _____________________________________/ [17] 18 I. INTRODUCTION 19 On December 21, 2018, Plaintiff Joanna Isiah (“Plaintiff”) filed a complaint under 42 20 U.S.C. § 1383 (c) seeking judicial review of -a final decision of the Commissioner of Social Security 21 (the “Commissioner” or “Defendant”) denying her application for Supplemental Security Income 22 (“SSI”) benefits under Title XVI of the Social Security Act (the “Act”). (Doc. 1.) The matter is 23 currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 24 the Honorable Sheila K. Oberto, United States Magistrate Judge.2 [25] 26 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See https://www.ssa.gov/agency/commissioner.html (last visited by the court on September 12, 2019). He is therefore 27 substituted as the defendant in this action. See 42 U.S.C. § 405 (g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210 (d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper 28 defendant”). 1 II. BACKGROUND 2 On May 14, 2015, Plaintiff protectively filed an application for SSI. (Administrative 3 Record (“AR”) 163–73.) Plaintiff alleges that she became disabled on September 8, 2014, due to 4 right shoulder surgery, scoliosis, migraines, neurological problems, hearing and vision loss, and 5 anxiety. (AR 15, 20, 58, 71, 76, 92, 174, 179, 183, 233, 255, 497, 554, 575.) Plaintiff was born 6 on October 18, 1980 and was 33 years old on her alleged onset date. (AR 58, 71, 81, 84, 164, 179, 7 233.) She has a high school education and can communicate in English. (AR 36, 182, 184, 235, 8 257.) 9 A. Relevant Medical Evidence3 10 1. Consultative Psychologist Roger A. Izzi, Ph.D. 11 On September 28, 2015, Roger A. Izzi, Ph.D., performed a psychiatric evaluation of 12 Plaintiff. (AR 411–14.) Plaintiff complained of anxiety, feelings of worthlessness, and “constant 13 pain.” (AR 411.) She reported that she was not consulting any mental health professionals at the 14 time of the examination. (AR 412.) 15 Dr. Izzi observed Plaintiff was alert, responsive, and fully oriented. (AR 412.) She 16 described her mood as “sad,” her affect was “dysphoric,” and she was observed to cry. (AR 412.) 17 When questioned regarding the onset of her emotional difficulties, Plaintiff responded that “[s]ix 18 years ago, the anxiety started and came out of nowhere.” (AR 412.) She continued: “I feel like 19 I’m going to pass out or die. When I lost my job, I had a panic attack.” (AR 412.) 20 On examination, Plaintiff was able to immediately recall three words without any obvious 21 difficulty. (AR 413.) Upon delayed recall, she was able to recall two of the three words. (AR 22 413.) Dr. Izzi observed Plaintiff had no trouble spelling the word “world” forward and backward. 23 (AR 413.) 24 Dr. Izzi diagnosed Plaintiff with an unspecified anxiety disorder. (AR 413.) He noted that 25 Plaintiff’s mood disorder will fluctuate as her subjective perception of pain fluctuates, and that 26 there is likely to be some depression secondary to her awareness of loss of functional ability. (AR [27] 3 Plaintiff’s assertions of error are limited to the ALJ’s finding that Plaintiff’s mental impairments associated with her 28 were not severe and the ALJ’s consideration of Plaintiff’s subjective complaints. Only evidence relevant to those 1 413.) Dr. Izzi noted that Plaintiff is “not having any difficulty caring for basic hygiene” and that 2 she “does appear capable of performing a simple repetitive type task on a consistent basis over an 3 eight-hour period.” (AR 413.) Dr. Izzi opined that Plaintiff’s ability to get along with peers or be 4 supervised in a work-like setting would be moderately limited by her mood disorder, which will 5 fluctuate. (AR 413.) He further opined that “[a]ny significant fluctuation of mood may limit 6 [Plaintiff’s] ability to perform a complex task on a consistent basis over an eight-hour period.” (AR 7 413.) According to Dr. Izzi, Plaintiff appeared capable of responding to usual work sessions 8 situations regarding attendance and safety issues and dealing with changes in a routine work setting. 9 (AR 414.) She was also capable of managing her own finances. (AR 414.) 10 2. State Agency Physicians 11 On November 16, 2015, state agency physician Paul Klein, PsyD., reviewed the record and 12 assessed Plaintiff’s mental residual functional capacity (RFC).4 (AR 63–64.) Dr. Klein opined 13 that Plaintiff had no restrictions of activities of daily living, no difficulties in maintaining social 14 functioning, and was only mildly limited in her ability to maintain concentration, persistence, or 15 pace. (AR 63.) He concluded that Plaintiff’s anxiety disorder was therefore nonsevere. (AR 63.) 16 Upon reconsideration on March 17, 2016, another state agency physician, Judy K. Martin, M.D., 17 reviewed the record and affirmed Dr. Klein’s findings. (AR 77–78.) 18 B. Administrative Proceedings 19 The Commissioner denied Plaintiff’s application for benefits initially on December 14, 2015, 20 and again on reconsideration on March 25, 2016. (AR 85–88, 92–96.) Consequently, Plaintiff 21 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 97–112.) 22 On February 8, 2018, Plaintiff appeared with counsel and testified before an ALJ as to her 23 alleged disabling conditions. (AR 35–52.) Plaintiff testified that she is still having issues with [24] 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 anxiety and that she sees a therapist and a psychiatrist. (AR 47.) She testified that therapy helps 2 with her anxiety because “it helps to talk about what’s going on” in her life. (AR 47.) She tried 3 several medications but had “really bad reactions,” so she ceased taking them. (AR 47.) She 4 testified she has difficulty paying attention and difficulty getting along with her family at times. 5 (AR 47–48.) 6 A Vocational Expert (“VE”) indicated that Plaintiff had past relevant work as a receptionist, 7 Dictionary of Operational Titles (“DOT”) code 237-367.038, which was sedentary exertional work, 8 with a specific vocational preparation (SVP)5 of 4. (AR 53.) The ALJ asked the VE a hypothetical 9 question, in which the VE was to consider a person of Plaintiff’s age, education, and work 10 experience, who could lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand, 11 or walk six to eight hours in an eight-hour workday; occasionally climb ladders, ropes, or scaffolds; 12 and frequently stoop, crouch, crawl, climb, kneel, and balance. (AR 53.) The VE testified that 13 such a person could perform Plaintiff’s past relevant work. (AR 53.) The ALJ asked a follow up 14 question regarding a second hypothetical worker who could lift 10 pounds; stand or walk two hours 15 in an eight-hour workday; sit six to eight hours in an eight-hour workday; cannot climb ladders, 16 ropes, scaffolds or work at heights; and occasionally stoop, crouch, crawl, climb, kneel, and 17 balance.. (AR 54.) The VE testified that such a person could perform Plaintiff’s past work. (AR 18 53.) The ALJ then posed to the VE third and fourth hypothetical persons who had the same 19 limitations as the second but with the additional requirements of two to four breaks of 30 minutes 20 per day or missing at least four days of work per month. (AR 53.) The VE testified that there was 21 no work that either hypothetical person could perform. (AR 53.) 22 C. The ALJ’s Decision 23 In a decision dated April 25, 2018, the ALJ found that Plaintiff was not disabled, as defined 24 by the Act. (AR 15–24.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 25 § 416.920. (AR 17–24.) The ALJ decided that Plaintiff had not engaged in substantial gainful [26] 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 activity since May 14, 2015, the application date (step one). (AR 17.) At step two, the ALJ found 2 Plaintiff’s following impairments to be severe: status post right shoulder arthroscopy; obesity; 3 Chiari 1 malformation status post craniotomy and decompression; and lumbar degenerative disc 4 disease. (AR 17.) Plaintiff did not have an impairment or combination of impairments that met or 5 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the 6 Listings”) (step three). (AR 17–19.) 7 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five. 8 See 20 C.F.R. § 416.920 (a)(4) (“Before we go from step three to step four, we assess your residual 9 functional capacity . . . . We use this residual functional capacity assessment at both step four and 10 step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff retained 11 the RFC: 12 to perform sedentary work as defined in 20 CFR [§] 416.967(a) except [Plaintiff] can stand/walk 2 hours and sit for eight hours. [Plaintiff] can [13] never climb ladders, ropes and scaffolds or work at heights. [Plaintiff] can 14 occasionally stoop, crouch, crawl, climb, kneel and balance. 15 (AR 19.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 16 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely 17 consistent with the medical evidence and other evidence in the record.” (AR 20.) The ALJ found 18 that, on the basis of the RFC assessment, Plaintiff retained the capacity to perform her past relevant 19 work as a receptionist (step four). (AR 23.) 20 Plaintiff sought review of this decision before the Appeals Council, which denied review 21 on October 24, 2018. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 22 Commissioner. 20 C.F.R. § 416.1481 . 23 III. LEGAL STANDARD 24 A. Applicable Law 25 An individual is considered “disabled” for purposes of disability benefits if he or she is 26 unable “to engage in any substantial gainful activity by reason of any medically determinable 27 physical or mental impairment which can be expected to result in death or which has lasted or can 28 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423 (d)(1)(A). 1 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 2 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 3 previous work but cannot, considering [her] age, education, and work experience, engage in any 4 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 5 “In determining whether an individual’s physical or mental impairment or impairments are 6 of a sufficient medical severity that such impairment or impairments could be the basis of eligibility 7 [for disability benefits], the Commissioner” is required to “consider the combined effect of all of 8 the individual’s impairments without regard to whether any such impairment, if considered 9 separately, would be of such severity.” Id. § 423(d)(2)(B). For purposes of this determination, “a 10 ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or 11 psychological abnormalities which are demonstrable by medically acceptable clinical and 12 laboratory diagnostic techniques.” Id. § 423(d)(3). 13 “The Social Security Regulations set out a five-step sequential process for determining 14 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, [15] 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520 ); see also 20 C.F.R. § 416.920 . 16 The Ninth Circuit has provided the following description of the sequential evaluation analysis: 17 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 18 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 19 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. [20] 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 21 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not disabled. If not, the 22 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 23 claimant is not disabled. If not, the claimant is disabled. 24 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920 (a)(4) 25 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 26 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 27 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520 ); 20 C.F.R. § 416.920 . 28 “The claimant carries the initial burden of proving a disability in steps one through four of 1 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 2 1989)). “However, if a claimant establishes an inability to continue her past work, the burden shifts 3 to the Commissioner in step five to show that the claimant can perform other substantial gainful 4 work.” Id. (citing Swenson, 876 F.2d at 687 ). 5 B. Scope of Review 6 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 7 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 8 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, [10] 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098 ). “Put another way, 11 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 13 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 14 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 15 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 16 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 17 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 18 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may 19 not substitute its judgment for that of the Commissioner.” (citations omitted)). 20 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 21 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, [22] 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 23 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 24 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 25 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 26 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., [27] 454 F.3d 1050 , 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 28 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 1 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 3 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 4 IV. DISCUSSION 5 Plaintiff contends that the ALJ erred in two respects: (1) the ALJ erred at step two by 6 improperly discrediting the opinion of consultative examiner Dr. Izzi that Plaintiff’s mental 7 impairment was severe; and (2) the ALJ failed to articulate specific, clear and convincing reasons 8 for discounting Plaintiff’s testimony regarding her subjective complaints. (See Doc. 15 at 14–18; 9 Doc. 19 at 2–6.) Defendant counters that the ALJ properly discounted Dr. Izzi’s opinion and that 10 the ALJ’s credibility assessment of Plaintiff was appropriate. (See Doc. 18 at 11–17.) 11 A. The ALJ Committed Error at Step Two by Improperly Discrediting the Opinion of the Consultative Examiner [12] 1. Legal Standard [13] “At step two of the five-step sequential inquiry, the Commissioner determines whether the [14] claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, [15] 80 F.3d 1273 , 1289–90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137 , 140–41 (1987)). [16] “[A]t the step two inquiry, . . . the ALJ must consider the combined effect of all of the claimant’s [17] impairments on her ability to function, without regard to whether each alone was sufficiently [18] severe.” Id. at 1290 (citing 42 U.S.C. § 423 (d)(2)(B) and TITLES II & XVI: THE SEQUENTIAL [19] EVALUATION PROCESS, Social Security Ruling (“SSR”) 86-8 (S.S.A. 1986)). [20] “[A]n impairment is not severe if it does not significantly limit [the claimant’s] . . . ability [21] to do basic work activities.” Id. at 1290 (citing 20 C.F.R. §§ 404.1520 (c) & 404.1521(a)). “[B]asic [22] work activities are the abilities and aptitudes necessary to do most jobs.” TITLES II & XVI: MED. [23] IMPAIRMENTS THAT ARE NOT SEVERE, SSR 85-28 (S.S.A. 1985). Examples of “basic work [24] activities” include (1) “[p]hysical functions such as walking, standing, sitting, lifting, pushing, [25] pulling, reaching, carrying, or handling,” (2) “[c]apacities for seeing, hearing, and speaking,” (3) [26] “[u]nderstanding, carrying out, and remembering simple instructions,” (4) “[u]se of judgment,” (5) [27] “[r]esponding appropriately to supervision, co-workers and usual work situations,” and (6) [28] 1 “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922 (b). 2 “An impairment or combination of impairments can be found ‘not severe’ only if the 3 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an 4 [individual’s] ability to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85–28). Additionally, “an 5 ALJ may find that a claimant lacks a medically severe impairment or combination of impairments 6 only when his conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 7 F.3d 683, 687 (9th Cir. 2005) (citing SSR 85–28); Cf. Ukolov v. Barnhart, 420 F.3d 1002 , 1006 8 (9th Cir. 2005) (finding that the claimant “failed to meet his burden of establishing disability” 9 where “none of the medical opinions included a finding of impairment, a diagnosis, or objective 10 test results”). 11 “Great care should be exercised in applying the not severe impairment concept.” SSR 85– 12 28. “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the effect 13 of an impairment or combination of impairments on the individual’s ability to do basic work 14 activities, the sequential evaluation should not end with the not severe evaluation step.’” Webb, 15 433 F.3d at 687 (alteration in original) (quoting SSR 85–28). 16 Ultimately, “[t]he severity regulation increases the efficiency and reliability of the 17 evaluation process by identifying at an early stage those claimants whose medical impairments are 18 so slight that it is unlikely they would be found to be disabled even if their age, education, and 19 experience were taken into account.” Yuckert, 482 U.S. at 153 . In other words, “the step-two 20 inquiry is a de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290 21 (citing Yuckert, 482 U.S. at 153–54). Nonetheless, “[t]he plaintiff has the burden of establishing 22 the severity of the impairment.” Cookson v. Comm’r of Soc. Sec., No. 2:12–cv–2542–CMK, 2014 23 WL 4795176 , at *2 (E.D. Cal. Sept. 25, 2014); see, e.g., Burch v. Barnhart, 400 F.3d 676, 679 (9th 24 Cir. 2005) (“The claimant carries the initial burden of proving a disability in steps one through four 25 of the analysis.”) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 26 2. Analysis 27 Here, Plaintiff contends that the ALJ erred at step two by improperly rejecting the opinion 28 of consultative psychologist Dr. Izzi as to the severity of Plaintiff’s mental impairment of anxiety 1 disorder. (See Doc. 15 at 14–16; Doc. 19 at 2–6.) The Court agrees. 2 The weight given to medical source opinions depends in part on whether they are proffered 3 by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195 , 4 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, 5 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 6 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 7 Holohan, 246 F.3d at 1202 . 8 An ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 9 opinion of either a treating or examining physician. Lester, 81 F.3d at 830 ; Pitzer v. Sullivan, 908 10 F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even if a 11 treating or examining physician’s opinion is contradicted, that opinion can be rejected only “for 12 specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 13 81 F.3d at 830–31. The ALJ can meet this burden by “setting out a detailed and thorough summary 14 of the facts and conflicting clinical evidence, stating his interpretation thereof, and making 15 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 16 Dr. Izzi diagnosed Plaintiff with an unspecified anxiety disorder. (AR 413.) His clinical 17 findings included that Plaintiff’s mood disorder will fluctuate as her subjective perception of pain 18 fluctuates, and that there is likely to be some depression secondary to her awareness of loss of 19 functional ability. (AR 413.) On examination, Plaintiff was able to immediately recall three words 20 without any obvious difficulty. (AR 413.) Upon delayed recall, she was able to recall two of the 21 three words. (AR 413.) Dr. Izzi observed Plaintiff had no trouble spelling the word “world” 22 forward and backward. (AR 413.) He opined that Plaintiff’s ability to get along with peers or be 23 supervised in a work-like setting would be moderately limited by her mood disorder, which will 24 fluctuate. (AR 413.) He further opined that “[a]ny significant fluctuation of mood may limit 25 [Plaintiff’s] ability to perform a complex task on a consistent basis over an eight-hour period.” (AR 26 413.) 27 Although not specifically identified by the ALJ as a basis for its rejection, Dr. Izzi’s opinion 28 is contradicted by the medical opinion evidence of state agency non-examining physicians Drs. 1 Klein and Martin, who, although unmentioned in the ALJ’s decision, opined that Plaintiff had no 2 restrictions of activities of daily living, no difficulties in maintaining social functioning, and was 3 only mildly limited in her ability to maintain concentration, persistence, or pace. (AR 63–64, 77– 4 78.) Drs. Klein and Martin concluded that Plaintiff’s anxiety disorder was nonsevere. (AR 63–64, 5 77–78.) Thus, the ALJ was required to state “specific and legitimate” reasons, supported by 6 substantial evidence, for rejecting Dr. Izzi’s opinion. 7 In according Dr. Izzi’s opinion “little weight” at step two, the ALJ stated Plaintiff: 8 had generally unremarkable memory and concentration during her mental status examination. Moreover, there was no obvious language or cognitive deficits [9] detected. [Plaintiff] was not under any psychiatric treatment by any mental health professional, which indicates that her anxiety is not as severe as alleged. [10] 11 (AR 19) (citations omitted).) While an ALJ may properly discount an examining physician’s 12 opinion that is inconsistent with the medical record, including his own findings, see Valentine, 574 13 F.3d at 692–93, it is not entirely clear that the ALJ is discrediting Dr. Izzi’s opinion on this basis. 14 There is nothing overtly inconsistent between Dr. Izzi’s finding that Plaintiff had “unremarkable 15 memory and concentration” and his opinion that Plaintiff has “moderate limitation in social 16 interactions” as a result of her anxiety disorder. (See AR 19.) Assuming the ALJ did intend to 17 discount Dr. Izzi’s opinion on this basis, the decision offers no elucidation from which the Court 18 can find a specific and legitimate rationale to explain any purported inconsistency between the two 19 findings. This lack of adequate explanation suggests that the ALJ instead substituted her own 20 judgment for competent medical opinion and/or made her own independent medical findings, both 21 of which are improper. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is 22 forbidden from making his or her own medical assessment beyond that demonstrated by the 23 record); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily 24 substitute his own judgment for competent medical opinion, . . . and he must not succumb to the 25 temptation to play doctor and make his own independent medical findings.”). 26 It is clear, however, that the ALJ intended to discount Dr. Izzi’s opinion due to Plaintiff’s 27 lack of psychiatric treatment at the time of the examination. (See AR 19 (“[Plaintiff] was not under 28 any psychiatric treatment by any mental health professional, which indicates that her anxiety is not 1 as severe as alleged.”). While the ALJ is correct that Plaintiff was not consulting any mental health 2 professionals at the time of the examination in 2015 (see AR 412, 413), her testimony, as well as 3 other evidence in the record, establishes that she later sought mental health treatment and was 4 prescribed medication to treat her anxiety. (See AR 47 (testifying in 2018 that she sees a therapist 5 and a psychiatrist for anxiety and tried several medications but had “really bad reactions” to them); 6 576–93 (2017 mental health treatment notes from Gagandeep Randhawa, M.D., and Sandy Badger7 Jones, LCSW).) That Plaintiff underwent therapy and was prescribed medications to treat her 8 anxiety two years after her examination by Dr. Izzi suggests, at a minimum, that her anxiety 9 symptoms persisted, yet the ALJ’s decision makes no mention of this fact. Moreover, Plaintiff’s 10 failure at the time of his examination by Dr. Izzi to seek treatment, and therefore medication, for 11 her anxiety, is not a legitimate reason to reject Dr. Izzi’s opinion. See Nguyen v. Chater, 100 F.3d 12 1462, 1465 (9th Cir. 1996) (“[T]he fact that [a] claimant may be one of millions of people who did 13 not seek treatment for a mental disorder until late in the day is not a substantial basis on which to 14 conclude that [a physician’s] assessment of [a] claimant’s condition is inaccurate.”); see also 15 Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294 , 1299–1300 (9th Cir. 1999) (noting that 16 the Ninth Circuit has “particularly criticized the use of a lack of treatment to reject mental 17 complaints both because mental illness is notoriously underreported and because ‘it is a 18 questionable practice to chastise one with a mental impairment for the exercise of poor judgment 19 in seeking rehabilitation’”) (quoting Nguyen, 100 F.3d at 1465 ). 20 In sum, the ALJ erred in failing to provide specific and legitimate reasons supported by 21 substantial evidence for giving “little weight” to the opinion of Plaintiff’s examining physician, Dr. 22 Izzi, and therefore “lacked substantial evidence to find that the medical evidence clearly established 23 [Plaintiff’s] lack of” the medically severe mental impairments of affective and anxiety disorders. 24 Webb, 433 F.3d at 688. Accordingly, the ALJ’s step two finding cannot stand.6 [25] 6 Defendant now attempts to justify the ALJ’s analysis by offering post-hoc rationale to support it, namely that Dr. 26 Izzi’s opinion was rejected because it was inconsistent with “other examinations” in the record. (See Doc. 18 at 11– 12.) A reviewing court, however, cannot affirm the denial of benefits based on a reason not stated or finding not made 27 by the ALJ, and Defendant’s after-the-fact attempt to supply an acceptable basis for the ALJ’s decision is unavailing. See, e.g., Pinto v. Massanari, 249 F.3d 840 , 847–48 (9th Cir. 2001) (an agency decision cannot be affirmed based on 28 a ground that the agency did not invoke in making its decision); Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219 , [1] 2 Because Plaintiff was found to have at least one severe impairment (see AR 17–19), this 3 case was not resolved at step two. Plaintiff does not assign error to the ALJ’s finding at step three. 4 Thus, any error in the ALJ’s finding at step two is harmless, if all impairments, severe and non5 severe, were considered in the determination Plaintiff’s RFC. See Lewis v. Astrue, 498 F.3d 909 , 6 910 (9th Cir. 2007) (holding that a failure to consider an impairment in step two is harmless error 7 where the ALJ includes the limitations of that impairment in the determination of the residual 8 functional capacity). The record demonstrates this was not done. 9 In determining Plaintiff’s RFC, the ALJ did not include or discuss any functional limitations 10 related to Plaintiff’s anxiety disorder, including those assessed by Dr. Izzi, in determining 11 Plaintiff’s RFC. (See AR 19–23.) For example, Dr. Izzi determined Plaintiff’s ability to get along 12 with peers, be supervised in a work-like setting, and perform a complex task on a consistent basis 13 would be moderately limited by her fluctuating mood disorder. (AR 413.) However, the ALJ did 14 not discuss, and the RFC does not include, any limitations in those areas. (See AR 19.) As the 15 ALJ failed to discuss the significant, probative evidence favorable to Plaintiff contained in the 16 medical opinions regarding Plaintiff’s anxiety disorder, the RFC was incomplete and the ALJ’s 17 error was not harmless. See, e.g., Inskeep v. Colvin, No. 3:15-cv-00759-BR, 2016 WL 3509395 , 18 at *4 (D. Or. June 27, 2016) (concluding that the ALJ erred at step two when he found Plaintiff’s 19 mental impairments are nonsevere and finding that error is not harmless because the ALJ did not 20 include any mental limitations in his assessment of Plaintiff’s RFC.) Remand is therefore 21 warranted. 22 C. Remand for Further Proceedings is Appropriate 23 When an ALJ commits error that is not harmless, “[t]he decision whether to remand for 24 further proceedings or simply to award benefits is within the discretion of [the] court.” McAllister [25] 26 on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”). Cf. Barbato v. Comm'r of Soc. Sec. Admin., 923 F. Supp. 1273 , 1276 n.2 (C.D. 27 Cal. 1996 ) (remand is appropriate when a decision does not adequately explain how a decision was reached, “[a]nd that is so even if [the Commissioner] can offer proper post hoc explanations for such unexplained conclusions,” for 28 “the Commissioner’s decision must stand or fall with the reasons set forth in the ALJ’s decision, as adopted by the 1 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 2 1987)). Where further administrative review could remedy the ALJ’s error, remand for further 3 administrative proceedings, rather than an award of benefits, is warranted. See Brown-Hunter v. 4 Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding for an award of benefits is appropriate in 5 rare circumstances). See also Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) (“If additional 6 proceedings can remedy defects in the original administrative proceeding, a social security case 7 should be remanded.”); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (“Remand for 8 further administrative proceedings is appropriate if enhancement of the record would be useful.”). 9 Before ordering remand for an award of benefits, three requirements must be met: (1) the Court 10 must conclude that the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) 11 the Court must conclude that the record has been fully developed and further administrative 12 proceedings would serve no useful purpose; and (3) the Court must conclude that if the improperly 13 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled 14 on remand. Brown-Hunter, 806 F.3d at 495 (citations omitted). Even if all three requirements are 15 met, the Court retains flexibility to remand for further proceedings “when the record as a whole 16 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 17 Social Security Act.” Id. (citation omitted). 18 Here, remand for further administrative proceedings is appropriate.7 See, e.g., Simmons v. 19 Colvin, No. CV 12–06060–AJW, 2013 WL 3337666 , at *3-4 (C.D. Cal. July 1, 2013) (finding error 20 at step two and remanding for further administrative proceedings). On remand, the ALJ shall 21 reconsider the opinion of Dr. Izzi regarding Plaintiff’s mental impairments, and either credit his 22 opinion or provide specific and legitimate reasons supported by substantial evidence for rejecting 23 it. 24 D. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 25 In light of the remand required by the ALJ’s error at step two, the Court finds it unnecessary 26 to address Plaintiff’s arguments with respect to the ALJ’s failure to credit the testimony of Plaintiff, [27] 28 7 Plaintiff concedes the error identified above can be remedied with further proceedings. (See Doc. 15 at 17; Doc. 19 1 as it concerns her alleged mental impairments that will be reconsidered on remand. See, e.g., Cable 2 v. Astrue, No. CIV S 06-0515 DAD, 2007 WL 2827798 , at *6–7 (E.D. Cal. Sept. 27, 2007); 3 Sanchez v. Apfel, 85 F. Supp. 2d 986 , 993 n.10 (C.D. Cal. 2000) (having concluded that remand is 4 appropriate because the ALJ erred at step two, the court need not consider issues of credibility). 5 V. CONCLUSION AND ORDER 6 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 7 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 8 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 9 in favor of Plaintiff Joanna Isiah and against Defendant Andrew Saul, Commissioner of Social 10 Security. [11] IT IS SO ORDERED. [12] Sheila K. Oberto 13 Dated: March 2, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE