White v. Saul

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 W.W., Case No. 19-cv-03343-JCS 8 Plaintiff, ORDER REGARDING CROSS 9 v. MOTIONS FOR SUMMARY JUDGMENT 10 KILOLO KIJAKAZI, Re: Dkt. Nos. 31, 35 Defendant. — 11 — 12 I. INTRODUCTION 13 Plaintiff W.W.1 brings this action challenging the final decision of Defendant Kilolo 14 Kijakazi,2 Acting Commissioner of Social Security (the “Commissioner”), denying W.W.’s 15 application for disability benefits. The parties filed cross motions for summary judgment pursuant 16 to Civil Local Rule 16-5. For the reasons discussed below, W.W.’s motion is GRANTED, the 17 Commissioner’s motion is DENIED, and the case is REMANDED for further administrative 18 proceedings consistent with this order.3 19 II. BACKGROUND 20 A. Education and Employment History 21 W.W. was born on February 15, 1955. Administrative Record (“AR,” dkt. 24) at 221. She 22 has a high school diploma and has completed vocational training in banking. Id. at 293. She 23 testified that she worked in the banking industry for over thirty years. Id. at 46. She worked as a — 24 — 25 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 the plaintiff only by her 26 initials. This order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 27 5-1(c)(5)(B)(i). 2 Kijakazi became Acting Commissioner while this case was pending and is therefore 1 bank teller, a financial service representative, and an accounting specialist. Id. at 46, 293. She 2 testified that she began losing jobs in 2001, either having been fired or having quit “on the verge 3 of getting fired” from a number of jobs. Id. She testified that she was unable to maintain pace and 4 understand new technology, and “didn’t have the functions to do [her] job anymore.” Id. She has 5 been unemployed since 2015. Id. at 46. 6 B. Medical History 7 This summary focuses on the evidence cited by the parties and relevant to the resolution of 8 the present motions and is not intended as a complete recitation of the administrative record or 9 W.W.’s medical history. W.W. alleges disability based on a mental impairment of depression and 10 a physical impairment of pre-diabetes. 11 1. Mental Impairment 12 On July 3, 2013, Dr. John Prosise, Ph.D., administered a mental status evaluation. Id. at 13 434. Dr. Prosise concluded that W.W.’s psychological capabilities were all unimpaired but could 14 not assess her ability to carry out complex tasks and decisions. Id. at 436. Dr. Prosise noted that 15 W.W. uses public transportation and manages her own finances. Id. Dr. Prosise diagnosed the 16 following mood disorders: (1) Depressive Disorder NOS; (2) Factitious Disorder, Psychological; 17 and (3) Somatization Disorder. Id. at 435. 18 On November 10, 2014, Dr. Raymond Friedmann, M.D., Ph.D., QME, conducted a file 19 review of W.W. for Prudential Insurance Company in connection with her long-term disability 20 claim. Id. at 490. Dr. Friedmann summarized a November 4, 2014 telephone conference with Dr. 21 Sharon Jones, M.D., who had been W.W.’s primary care physician. Id. at 491. Dr. Jones noted 22 that she “did not have a clear recollection” of W.W. and based her comments on her written notes. 23 Id. Dr. Jones stated that W.W. “required chronic use of an antidepressant medication to stay 24 stable” and that she had difficulty learning new things. Id. Dr. Jones explained that W.W. had 25 first been diagnosed with Major Depression while working and only stabilized after leaving work 26 on disability. Id. 27 On July 6, 2016, W.W. established care at Lifelong Medical Care. Id. at 582. Her chart 1 Id. The charts further noted that she was not working because of physical pain and depression, 2 and had difficulty concentrating and initiating sleep. Id. W.W. also stated that her antidepressants 3 made her “more tired” and caused her to need disability. Id. The treating Physician Assistant, 4 Paterson Rene, assessed “Recurrent major depressive disorder.” Id. at 584. PA Rene prescribed 5 several medications, including Sertraline. Id. at 586. 6 On August 24, 2016, W.W. returned to Lifelong Medical Care and began weekly therapy 7 with Tenzin Youdon, LCSW. Id. at 569, 737. W.W. reported feelings of depression for the past 8 eleven years. Id. at 569. LCSW Youdon noted that W.W.’s depression had impacted her work 9 and that W.W. had been forced to retire in 2013. Id. LCSW Youdon further noted that W.W. was 10 taking psychiatric medication, specifically Sertraline, Bupropion, and Nortriptyline. Id. LCSW 11 Youdon assessed depressed mood and an “[i]mpaired ability to make reasonable decisions,” but 12 noted it was within normal limits. Id. at 570. LCSW Youdon diagnosed “Major depressive 13 disorder, recurrent, moderate” and “Anxiety disorder.” Id. at 571. 14 On September 14, 2016, LCSW Youdon noted W.W.’s mood was “a little down” and that 15 W.W. had trouble sleeping. Id. at 563. On September 28, 2016, LCSW Youdon noted that W.W. 16 was depressed. Id. at 561. LCSW Youdon saw W.W. three additional times that year and 17 assessed major depressive disorder and anxiety disorder at all three visits. Id. at 554, 548, 636. 18 On February 13, 2017, LCSW Youdon noted that W.W.’s mood was “down” and that she had 19 “low energy.” Id. at 624. LCSW Youdon assessed “[i]mpaired ability to make reasonable 20 decisions,” but “[w]ithin normal limits.” Id. at 625. LCSW Youdon marked no hallucinations and 21 noted that W.W.’s thought process was logical and her speech was clear. Id. 22 On February 15, 2017, Dr. Ute Kollath, Ph.D., conducted a mental status evaluation in 23 connection with W.W.’s application for Social Security benefits. Id. at 602–05. Dr. Kollath 24 diagnosed W.W. with “Unspecified Depressive Disorder” and assessed that W.W. was unimpaired 25 in almost all areas of work-related abilities. Id. at 605. Dr. Kollath assessed that W.W. was 26 mildly impaired only in her “[a]bility to maintain adequate pace or persistence to perform . . . 27 [c]omplex tasks.” Id. Dr. Kollath assessed that W.W. “should have no functional disruption due 1 functional test results. Id. at 604. Dr. Kollath further assessed that W.W.’s prognosis was “[g]ood 2 with comprehensive mental health services.” Id. 3 In March of 2017, Drs. A. Cepeda, MD, and E. Bergmann-Harms, PhD, reviewed W.W.’s 4 treatment records but did not treat or examine W.W. Id. at 128–53. Drs. Cepeda and Bergmann5 Harms determined that W.W. had “Depressive, Bipolar and Related Disorders” and concluded that 6 W.W. had no severe mental impairments. Id. at 149. These findings were reviewed and affirmed 7 by Drs. L. Arnold, MD, and Dan Funkenstein, MD, in July of 2017. Id. at 150, 153. Neither of 8 those doctors treated or examined W.W. Id. 9 On May 10, 2017, LCSW Youdon noted that W.W.’s mood was “sleepy” and that she had 10 been “staying inside for a week.” Id. at 644. LCSW Youdon conducted a mental status exam and 11 W.W. scored a 16 on the PHQ-9, which LCSW Youdon interpreted as “Moderately severe 12 depression.” Id. 13 After a year of treatment, PA Rene wrote in a June 3, 2017 letter that W.W. was seeing 14 LCSW Youdon for her recurrent major depression and anxiety. Id. at 643. PA Rene assessed that 15 W.W.’s chronic abdominal pain complicated her psychiatric health. Id. PA Rene noted that W.W. 16 would “benefit from continued intensive therapy,” and concluded that “at this point [W.W.] would 17 not be able to manage a job.” Id. 18 On August 14, 2017, LCSW Youdon noted that W.W. “wakes up in a bad mood” and that 19 her “patience is short.” Id. at 719. LCSW Youdon further noted that W.W. was irritable “over 20 little things” and got into a “heated argument with [her] hair dresser.” Id. LCSW Youdon 21 conducted a mental status exam and noted that W.W.’s insight and judgment were good and that 22 she did not present any signs of mania, although her mood and affect were depressed and teary. 23 Id. W.W. scored a 20 on the PHQ-9,4 which LCSW Youdon interpreted as “Severe depression.” 24 Id. W.W. also scored an 18 on the GAD-7. Id. 25 On September 20, 2017, PA Rene increased W.W.’s Sertraline prescription to 100 mg. Id. 26 at 711. PA Rene noted that W.W. was compliant with her medication and that her Sertraline — 27 — 1 prescription had recently been increased to 50 mg after W.W. “felt no improvement any longer” 2 on 25 mg. Id. at 709. On October 23, 2017, W.W. expressed that she felt happy some days and 3 depressed other days. Id. at 705. W.W. reported being an “active person” and was going for 4 walks. Id. She also reported that she had received home improvement loans from the City of 5 Richmond which was “motivat[ing] her to be positive and productive.” Id. After a mental status 6 exam, W.W. scored 26 on the PHQ-9 and 21 on the GAD-7, indicating severe depression. Id. On 7 November 20, 2017, W.W. reported feeling tired because she was caring for her cousin’s two 8 dogs. Id. at 694. 9 On December 11, 2017, Mental Health Clinician (“MHC”) Somchith Phongboupha 10 conducted a clinical assessment of W.W. Id. at 735. MHC Phongboupha noted that W.W. had 11 been on Nortriptyline and Setraline for five years to treat her depression and anxiety. Id. W.W. 12 reported that she was “[d]epressed, amotivated, low interest in things, poor energy, variable 13 appetite and sleep, poor concentration, [and] forgetful.” Id. at 738. W.W. also reported passive 14 suicidal ideation. Id. at 735. MHC Phongboupha noted that W.W. smoked cigarettes daily and 15 smoked marijuana occasionally. Id. MHC Phongboupha assessed severe functional impairment 16 in employment performance and recreational/leisure activities, and moderate functional 17 impairment in social relations. Id. at 737. MHC Phongboupha assessed “mild” impairments in 18 other aspects of W.W.’s life, including substance abuse, physical health, and family relations. Id. 19 MHC Phongboupha further assessed that W.W.’s mood and affect were depressed and anxious. 20 Id. MHC Phongboupha diagnosed “Unspecified depressive disorder.” Id. at 738. 21 On December 18, 2017, W.W. reported to LCSW Youdon that her stress was high and that 22 “she was doing a lot and then crashed.” Id. at 692. She reported that her niece was now handling 23 the home modifications because she felt it was “too much for her.” Id. LCSW Youdon assessed 24 that W.W. was teary and her mood and affect were depressed. Id. W.W. scored 23 on the PHQ-9 25 and 19 on the GAD-7, indicating severe depression. Id. 26 On January 3, 2018, W.W. met with Dr. Mariposa McCall, MD, a psychiatrist, for an 27 initial psychiatry visit. Id. at 739. Dr. McCall reported that W.W. came in to adjust her 1 she had passive suicidal ideation. Id. at 741. Dr. McCall further noted that W.W.’s impulse 2 control and judgment were “poor at times.” Id. Dr. McCall increased her antidepressant 3 prescription to 100 mg and recommended continued therapy. Id. at 742. On January 10, 2018, 4 LCSW Youdon reported that W.W. was feeling “more depressed than ever.” Id. at 686. W.W. 5 scored 23 on the PHQ-9 and 15 on the GAD-7, indicating severe depression. Id. Later that 6 month, Dr. McCall and W.W. discussed adjusting her antidepressants, and Dr. McCall 7 recommended transitioning to Prozac. Id. at 744. Dr. McCall noted that W.W. was not “fully 8 adherent” to her medication. Id. at 745. Dr. McCall reported “[n]o improvement so far.” Id. Dr. 9 McCall switched W.W.’s medication to Cymbalta in March. Id. at 748. Dr. McCall noted 10 W.W.’s marijuana usage and assessed that W.W. may use less once her mood improves. Id. In 11 May of 2018, W.W. reported no improvement despite the new medication. Id. at 750. Dr. McCall 12 noted that W.W. continued to isolate herself. Id. Dr. McCall also noted that W.W. reported 13 feeling depressed and irritable. Id. Dr. McCall increased W.W.’s Cymbalta prescription to 60 mg. 14 Id. at 753. 15 After almost two years of weekly therapy, LCSW Youdon documented in a May 1, 2018 16 letter a diagnosis of Major Depression Recurrent Moderate and Anxiety Disorder. Id. at 732. 17 LCSW Youdon noted W.W.’s long history of depression and anxiety and that W.W. had been 18 forced to retire due to her physical and mental problems. Id. LCSW Youdon assessed that W.W. 19 struggles with motivation and concentration, which negatively impacts her mood. Id. LCSW 20 Youdon reported that W.W. takes her prescribed psychiatric medication but concluded that W.W. 21 is “unable to fully participate and function in the workforce and [is] unable to follow instructions 22 to do her job as required.” Id. 23 After almost five months of treatment for a total of four visits, Dr. McCall documented in a 24 May 2, 2018 letter diagnoses of “Major Depression, Recurrent, Most Recent Episode severe 25 without psychosis” and Post Traumatic Stress Disorder (“PTSD”). Id. at 756. Dr. McCall wrote 26 that W.W.’s high score on the PHQ-9 indicated a severe degree of depression symptoms and also 27 wrote that W.W. received a high score on the PTSD questionnaire. Id. Dr. McCall noted multiple 1 Despite good medication adherence and medication adjustments and changes, [W.W.] continues to report feeling very depressed, anxious, 2 irritable, amotivated, with little interest in things, isolating because is easily annoyed. She feels tired, has poor concentration, and is 3 forgetful. Tasks take longer to complete and consistency has been hard to maintain. She is hypervigilant, hyperaroused, has trouble 4 relaxing, has distressing memories of past traumas, has difficulty trusting others, and tends to isolate[]. — 5 — 6 Id. Dr. McCall further noted that W.W.’s mental health symptoms are complicated by her 7 “ongoing pain issues [which] further limit her abilities to engage with others and complete tasks 8 consistently and timely.” Id. Dr. McCall wrote that W.W. “has used marijuana to cope with her 9 mental health symptoms and physical pain” and noted that W.W. has made efforts to limit her use 10 of alcohol and marijuana. Id. 11 2. Physical Impairment 12 On September 7, 2016, medical records documented a diagnosis of pre-diabetes. Id. at 13 565. On December 14, 2016, W.W. was examined by Dr. Alison Cook, DPM, for a diabetes 14 follow-up. Id. at 631. W.W. reported frequent urination, difficulty walking, and numbness in her 15 extremities. Id. at 632. Dr. Cook conducted a physical exam and noted decreased vascular pulses 16 in both feet. Id. Dr. Cook also scheduled a follow-up appointment for an “ingrown nail 17 prediabetic.” Id. at 634. 18 On February 15, 2017, Dr. Eugene McMillan, MD, conducted an internal medicine 19 evaluation in connection with W.W.’s application for Social Security benefits. Id. at 607–11. Dr. 20 McMillan made the following functional capacity assessment: 21 She has abdominal pain approximately once a month. She would be able to occasionally lift and carry 50 pounds and frequently lift and 22 carry 25 pounds. Standing and walking would be for at least six hours during an eight-hour workday. There would be no limitations on 23 sitting. She does not require an assistive device. She would be able to engage in activities that would require stopping, kneeling and 24 crouching for at least one third of a workday. There would be no limitations with seeing, hearing or speaking. She would have no 25 limitations with reaching in all directions. There would be no limitations with gross or fine manipulations. There would be no 26 environmental limitations for heights, moving machinery, temperatures, chemicals or dust. — 27 — 1 had “Diabetes Mellitus” and assessed no severe physical impairments. Id. at 149. These findings 2 were reviewed and affirmed by Drs. Arnold and Funkenstein. Id. at 150, 153. 3 At an October 25, 2017 follow-up appointment with Dr. Cook, W.W. presented with a 4 painful callus, constipation, and frequent urination. Id. at 700–01. Dr. Cook noted decreased 5 vascular pulses in both feet and poor calf flexibility. Id. Dr. Cook reported similar findings after a 6 pre-diabetes follow-up appointment on January 17, 2018. Id. at 681–85. 7 C. Denial of First Application 8 W.W. filed a previous application for disability benefits, for which an unfavorable decision 9 was issued on October 28, 2011.5 Id. at 112. 10 D. Denial of Second Application and ALJ’s Decision 11 W.W. filed her second application on February 18, 2013 alleging disabling Depressive 12 Disorder and chronic stomach pain related to a colostomy, sigmoid colon, and the absence of half 13 of her stomach with an onset date of February 16, 2013. Id. at 112–17. Her second application 14 was denied on April 15, 2013 and upon reconsideration on April 22, 2014. Id. at 112. On October 15 29, 2015, a hearing was held before ALJ Mary P. Parnow, who heard testimony from W.W., her 16 representative, and a vocational expert. Id. at 112, 122. Judge Parnow issued an unfavorable 17 decision on January 14, 2016. Id. at 122. Judge Parnow first noted that the October 28, 2011 18 prior decision “create[d] an ongoing presumption that [W.W.] was able to work beyond the date of 19 that decision (or the adjudicated period),” which could be rebutted by showing a “changed 20 circumstance.” Id. at 112–13 (internal quotation marks omitted). Judge Parnow found two 21 changed circumstances rebutted the presumption: (1) changed age category from “closely 22 approaching advanced age to advanced age,” and (2) a new impairment that had not been 23 considered previously. Id. at 113. 24 Judge Parnow found that W.W. had not engaged in substantial gainful activity since 25 February 18, 2013 and concluded W.W. had a severe impairment: “status post bowel construction 26 with colostomy.” Id. at 115. Judge Parnow found that W.W.’s depressive disorder was non27 1 severe because it “causes no more than ‘mild’ limitation” in the paragraph B criteria. Id. Judge 2 Parnow found that the medical record indicated that W.W. was “stable” on her antidepressants and 3 “was feeling better when she was seeing a psychologist and going to group meetings for 4 depression.” Id. at 120. Judge Parnow further found that W.W. had the residual functional 5 capacity to perform less than the full range of light work and that W.W. could do the following: 6 [S]tand and/or walk for 6 hours in an 8-hour workday; can sit for 6 hours in an 8-hour workday; lift and/or carry 20 pounds occasionally 7 and 10 pounds frequently; can frequently balance; can occasionally bend, squat, crouch and crawl; would be absent from work one day 8 per month; and would be off task 5% of the workday. 9 Id. at 117. Lastly, Judge Parnow found that W.W. was capable of performing past work as a bank 10 teller and a financial customer service representative, which was not precluded by W.W.’s residual 11 functional capacity. Id. at 121. Judge Parnow therefore concluded that W.W. was not disabled. 12 Id. at 122. 13 E. Third Application and Administrative Hearing 14 On November 8, 2016, W.W. filed her third application with an onset date of January 12, 15 2016. Id. at 221–22. Her application was denied on March 23, 2017 and upon reconsideration on 16 July 27, 2017. Id. at 157–69. On May 18, 2018, a hearing was held before ALJ Kevin Gill, who 17 heard testimony from W.W., her attorney representative, and a vocational expert. Id. at 40. 18 Judge Gill first heard testimony from W.W. about her work history and her medical 19 conditions. Id. at 43. W.W. testified that she was not currently working and had not worked since 20 2015. Id. at 46. She testified that she had been in banking for over thirty years and worked as an 21 accounting specialist. Id. at 46–47. She testified that her responsibilities include seeking new 22 business, creating reports on new accounts, and closing accounts. Id. at 46. Judge Gill then asked 23 W.W. what prevented her from working and W.W. gave the following explanation: 24 Right now, I suffer from depression. I also have abdominal pain from surgery. I have problems lifting to a certain extent, bending due to my 25 surgery in my leg. The bladder, I go to the bathroom on a regular basis. I am unable to concentrate, and focus on what any of my 26 supervisors instruct me to do. 27 Id. at 47. 1 continues to feel pain in her stomach where she had a colostomy bag and where the “colon part of 2 [her] stomach was removed.” Id. She testified that she continues to have limited bending and 3 lifting. Id. at 48. She explained that she could not lift more than fifteen pounds without 4 worsening the pain. Id. at 49. When asked if she was able to do household chores, W.W. 5 responded, “Some days, yes, and some days no.” Id. She explained that when her stomach pain is 6 “overbearing,” she takes her medication and sleeps. Id. When asked how often this occurred, 7 W.W. testified nine days out of the month. Id. W.W. also testified that she could sweep, dust, and 8 do the dishes. Id. at 49. W.W. testified that she takes stool softeners and occasionally takes 9 Motrin to manage the pain. Id. at 47. W.W. also testified that she is not allowed to use the stove 10 when she is home alone because her last prescribed medication put her to sleep. Id. at 50. W.W. 11 testified that she believed she was developing arthritis from her wrist to her elbow and has 12 difficulty gripping and holding things. Id. at 48. She testified that she occasionally cannot move 13 several of her fingers. Id. She further testified that she was prescribed medication a couple of 14 weeks before. Id. 15 Judge Gill then asked W.W. about her mental impairments. Id. at 50–51. W.W. testified 16 that concentration is “[v]ery difficult.” Id. She stated that she has difficulty focusing and 17 explained that she often has to read a sentence four or five times. Id. at 50–51. When asked how 18 she gets along with others, W.W. testified that she does not communicate very well and can 19 become withdrawn. Id. at 51. She explained that depression “looks like a life-ending situation.” 20 Id. She explained that she is “overwhelmed, and exhausted, stressed, and just worr[ies].” Id. She 21 testified that she “would love to go back to work, but mentally, and physically, it is not 22 happening.” Id. 23 W.W. was then examined her attorney, Rosemary Dady. Id. Dady first asked W.W. about 24 her job performance. Id. at 52. W.W. testified that she began losing jobs in 2001. Id. She 25 testified that she was fired from one job because she “couldn’t keep up with the pace.” Id. She 26 explained that she had been “on the verge of getting fired” from another job when she left to care 27 for her mother. Id. After her mother died, W.W. returned to work before becoming sick and 1 functions to do [her] job anymore.” Id. W.W. explained that she had posted money to wrong 2 accounts, could not balance numbers, and could not understand reports. Id. at 53, 56. At Wells 3 Fargo, W.W. was written up because she could not understand her managers and because she was 4 using the bathroom too often. Id. at 54. She testified that she was not performing well at work 5 and was making mistakes, including an incident where W.W. had misplaced a customer’s money 6 and the customer’s car was almost repossessed as a result. Id. at 56–59. When asked if there were 7 simpler jobs at the bank that she could perform, W.W. testified that she struggled with the 8 technology, including drafting letters and emails. Id. at 59–60. She also explained that she could 9 not lift a bag with $500 worth of quarters because of her abdominal pain. Id. at 60–61. 10 Dady then asked W.W. about her mental impairments. Id. at 61. W.W. testified that she 11 has been prescribed antidepressants for many years. Id. at 62. She explained that even when she 12 is on medication, her depression causes her to isolate and stay in bed all day for several days a 13 month. Id. at 62–63. 14 Finally, Judge Gill questioned Christopher Salvo, the vocational expert. Salvo first asked 15 W.W. several clarifying questions before classifying her past work as a customer service 16 representative and a teller. Id. at 66. Judge Gill provided the first hypothetical as follows: 17 [A]ssume a hypothetical individual of the claimant’s age, and education, with the past jobs that you described. Further, [assume6] 18 this individual is limited to lifting and carrying – what is it, 20 pounds occasionally, 10 pounds frequently. Sitting six hours in an eight-hour 19 day. Standing and walking six. This individual is limited to frequent climbing of ramps and stairs. Frequent climbing of ladders, ropes, and 20 scaffolds. And, frequent balance, stoop, kneel, crouch, and crawl. 21 Id. at 67. Based on the hypothetical, Salvo testified that the hypothetical person could perform 22 W.W.’s past work as a customer service representative and a teller. Id. at 67–68. 23 In the second hypothetical, Judge Gill added limitations: “this person is further limited to 24 performing detailed, but non-complex instructions.” Id. at 68. Salvo testified that the hypothetical 25 person could not perform the past duties because the work could be very complex. Id. Judge Gill 26 asked if there “any transferable skills that would allow this person to do something that was less — 27 — 1 complex.” Id. Salvo testified that the hypothetical person could be a gambling cashier with at 2 least 4,000 positions and a check cashier with at least 50,000 positions. Id. When asked what 3 skills were transferrable, Salvo responded: 4 Basically, dealing with the public in a friendly manner. Explaining the services that the business may offer. Taking in money, making 5 appropriate change. Looking for certain IDs, if they are trying to cash a check, to make sure there is proper ID to verify the person as the 6 individual. 7 Id. at 70. Salvo further testified that the skills were transferable with little vocational adjustment. 8 Id. He clarified that there would be “moderate’ adjustment to a gaming cashier because of the 9 change in industry and environment. Id. As to the second hypothetical, Dady asked Salvo if the 10 hypothetical person could retain their job if they were unable to balance their drawer at the end of 11 the day and were short at least $100. Id. Salvo testified that there would be no jobs if this 12 occurred on “an ongoing basis, where once a month she was making a mistake of $100 or more, 13 every month, month after month.” Id. at 72. 14 In the third hypothetical, Judge Gill limited the hypothetical individual to “simple, routine 15 tasks.” Id. at 70–71. Salvo testified that the hypothetical individual could not perform any of the 16 jobs with transferable skills. Id. at 71. 17 Lastly, Dady asked Salvo how many absences per month would be tolerated and Salvo 18 responded with the following: 19 It is my belief, that if a person misses a day-and-a-half or more on an ongoing basis, [they] would be let go. While some months, they 20 would be allowed two, maybe three days, but if it was ongoing, continuous, anything over a day-and-a-half a month, would be let go. — 21 — 22 Id. at 72. 23 F. Legal Background for Determination of Disability 24 Disability insurance benefits are available under the Social Security Act when an eligible 25 claimant is unable to “engage in any substantial gainful activity by any reason of any medically 26 determinable physical or mental impairment . . . which has lasted or can be expected to last for a 27 continuous period of not less than 12 months.” 42 U.S.C. § 423 (d)(1)(A); see also 42 U.S.C. 1 severity that she is not only unable to do her previous work but also “cannot, considering his age, 2 education, and work experience, engage in any other kind of substantial gainful work which exists 3 in the national economy.” 42 U.S.C. § 423 (d)(2)(A). The claimant bears the burden of proof in 4 establishing a disability. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996). Where, as here, the 5 claimant has previously been denied benefits, she must “overcome the presumption of continuing 6 nondisability [by] prov[ing] ‘changed circumstances’ indicating a greater disability.” Chavez v. 7 Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The “changed circumstances” requirement can be 8 satisfied by a “change in the claimant’s age category under 20 C.F.R. 404.1563 or 416.963, an 9 increase in the severity of the claimant’s impairment(s), the alleged existence of an impairment(s) 10 not previously considered, or a change in the criteria for determining disability.” Acquiescence 11 Ruling 97-4(9), 1997 WL 742758 , at *3. If the presumption is not rebutted, the ALJ must 12 determine that the claimant is not disabled. Id. 13 1. Five Step Framework for ALJ Decisions 14 The Commissioner has established a sequential five-part evaluation process to determine 15 whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520 (a)(4). At step 16 one, if the claimant has engaged in “substantial gainful activity” during the alleged period of 17 disability, they are not disabled. 20 C.F.R. § 404.1520 (a)(4)(i). Substantial gainful activity is 18 “work activity that involves doing significant physical or mental activities . . . for pay or profit.” — 19 — 20 C.F.R. § 220.141 (a)–(b). If the claimant has not engaged in such activities, the evaluation 20 continues at step two. 21 At the second step of the analysis, if the claimant has no “severe medically determinable 22 impairment,” they are not disabled. 20 C.F.R. § 404.1520 (a)(4)(ii). Impairments are severe when 23 there is “more than a minimal limitation in [the claimant’s] ability to do basic work activities.” 20 24 C.F.R. § 404.1520 (c). If the claimant does not suffer from a severe impairment, they are not 25 disabled; if they have a severe impairment, the evaluation continues to step three. 26 Next, the ALJ turns to the Social Security Administration’s listing of severe impairments 27 (the “Listing”). See 20 C.F.R. § 404 , subpt. P, app. 1. If the claimant’s alleged impairment meets 1 § 404.1520(a)(4)(iii). If not, the evaluation proceeds to step four. 2 At step four, ifbased on the claimant’s residual functional capacity (“RFC”)the 3 claimant can still perform their past work, they are not disabled. 20 C.F.R. § 404.1520 (a)(4)(iv). 4 The RFC is a determination of “the most [the claimant] can do despite [the claimant’s] 5 limitations.” 20 C.F.R. § 404.1520 (a)(1). If the ALJ finds the claimant can perform their past 6 relevant work, they are not disabled; if they are not able to perform such work, the evaluation 7 moves to step five. 8 For the fifth and final step, the burden shifts from the claimant to prove disability to the 9 Commissioner to “identify specific jobs existing in substantial numbers in the national economy 10 that the claimant can perform despite [the claimant’s] identified limitations.” Meanel v. Apfel, 172 11 F.3d 1111, 1114 (9th Cir. 1999) (citing Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). 12 If the Commissioner can identify work that the claimant could perform, they are not disabled; if 13 not, the claimant is disabled and entitled to benefits. 20 C.F.R. § 404.1520 (g)(1). 14 2. Supplemental Regulations for Determining Mental Disability 15 The Social Security Administration has supplemented the five-step general disability 16 evaluation process with regulations governing the evaluation of mental impairments at steps two 17 and three of the five-step process. See generally 20 C.F.R. § 404 .1520a;7 see also Segura v. 18 Berryhill, CV 17-07303-RAO, 2018 WL 5255317 , at *12 (C.D. Cal. Oct. 19, 2018) (citing Maier 19 v. Comm’r of Soc. Sec. Admin., 154 F.3d 913 (9th Cir. 1998)). First, the Commissioner must 20 determine whether the claimant has a medically determinable mental impairment. 20 C.F.R. 21 § 404.1520a(b)(1). Next, the Commissioner must assess the degree of functional limitation 22 resulting from the claimant’s mental impairment with respect to four broad functional areas: 23 (1) ability to understand, remember, or apply information; (2) ability to interact with others; 24 (3) ability to concentrate, persist, or maintain pace; and (4) ability to adapt or manage oneself. 20 — 25 — — 26 — 7 The amendments to the regulations and listings pertaining to mental impairments became 27 effective as of January 17, 2017. See 20 C.F.R. § 404 .1520a. Judge Gill’s decision was issued after the effective date, and the new listings were applied. Since neither W.W. nor the 1 C.F.R. § 404 .1529a(b)(2), (c). Finally, the Commissioner must determine the severity of the 2 claimant’s mental impairment and whether that severity meets or equals the severity of a mental 3 impairment listed in Appendix 1. 20 C.F.R. § 404 .1520a(d). If the Commissioner determines that 4 the severity of the claimant’s mental impairments meets or equals the severity of a listed mental 5 impairment, the claimant is disabled. See 20 C.F.R. § 404.1520 (a)(4)(iii). Otherwise, the 6 evaluation proceeds to step four of the general disability inquiry. See 20 C.F.R. 7 § 404.1520a(d)(3). 8 Appendix 1 provides impairment-specific “Paragraph A” criteria for determining the 9 presence of various listed mental impairments, but all listed mental impairments share certain 10 “Paragraph B” severity criteria in common (and some have alternative “Paragraph C” severity 11 criteria). See generally 20 C.F.R. Pt. 404, Subpt. P, App. 1 at 12.00. Therefore, any medically 12 determinable mental impairmenti.e., one that satisfies the Paragraph A criteria of one or more 13 listed mental impairmentsis sufficiently severe to render a claimant disabled if it satisfies the 14 general Paragraph B criteria. To satisfy the Paragraph B criteria, a mental disorder must result in 15 “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental 16 functioning. See id. A “marked” limitation is one that is “more than moderate but less than 17 extreme” and “may arise when several activities or functions are impaired, or even when only one 18 is impaired, as long as the degree of limitation is such as to interfere seriously with [a claimant’s] 19 ability to function independently, appropriately, effectively, and on a sustained basis.” Id. at 20 12.00C. 21 This evaluation process is to be used at the second and third steps of the sequential 22 evaluation discussed above. Social Security Ruling (“SSR”)8 96-8p, 1996 WL 374184 , at *4 (July — 23 — — 24 — 8 SSRs, according to the governing regulations, “are binding on all components of the Social 25 Security Administration” and “represent precedent[ial] final opinions and orders and statements of policy and interpretations” of the Social Security Administration (“SSA”). 20 C.F.R. 26 § 402.35(b)(1); see also Heckler v. Edwards, 465 U.S. 870 , 873 n.3 (1984) (noting the function of SSRs). “SSRs reflect the official interpretation of the SSA and are entitled to ‘some deference as 27 long as they are consistent with the Social Security Act and regulations.’” Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006) (quoting Ukolov v. Barnhart, 420 F.3d 1002 , 1005 n.2 (9th 1 2, 1996) (“The adjudicator must remember that the limitations identified in the ‘paragraph B’ and 2 ‘paragraph C’ criteria are not an RFC assessment but are used to rate the severity of mental 3 impairment(s) at steps 2 and 3 sequential evaluation process.”). If the Commissioner determines 4 that the claimant has one or more severe mental impairments that neither meet nor are equal to any 5 listing, the Commissioner must assess the claimant’s residual functional capacity. 20 C.F.R. 6 § 404.1520a(d)(3). This is a “mental RFC assessment [that is] used at steps 4 and 5 of the 7 sequential process [and] requires a more detailed assessment by itemizing various functions 8 contained in the broad categories found in paragraphs B and C of the adult mental disorders 9 listings in 12.00 of the Listing of Impairments.” SSR 96-8p, 1996 WL 374184 at *4. 10 G. Judge Gill’s Decision 11 In his decision issued August 21, 2018, Judge Gill considered whether W.W. was disabled 12 within the meaning of the Social Security Act. AR at 21–33. Judge Gill first addressed whether 13 there was “good cause” to justify reopening the prior decision issued by Judge Parnow on January 14 14, 2016. Id. at 21 . Judge Gill found that because W.W. alleged disability beginning January 12, 15 2016an onset date within a previously adjudicated periodher application included an implied 16 request for reopening. Id. Judge Gill found that there was no good cause to reopen the prior 17 decision. Id. Judge Gill then applied the five-step analysis and determined that W.W. was not 18 disabled. 19 1. Whether Prior Denial of Disability Benefits is Binding 20 Addressing the implications of W.W.’s prior denial of benefits, Judge Gill found that 21 decision was final and binding. Id. at 22–23. Judge Gill found that W.W.’s alleged disabilities 22 were “similar but not identical” and therefore necessitated an analysis of the severity of the new 23 alleged impairments. Id. at 24 . Judge Gill found that a new analysis was warranted because the 24 listing for depression had changed since the last decision, her prior severe impairment of “status 25 post bowel construction with colostomy” had decreased in severity, and her residual functional 26 capacity had increased. Id. at 24–25. He concluded that the presumption of continuing 27 nondisability that arises under Chavez v. Brown, 844 F.2d 691 (9th Cir. 1988), based on a prior 1 W.W.’s application under the five-step framework. 2 At Step One, Judge Gill determined that W.W. had not engaged in substantial gainful 3 activity since the alleged onset date of January 12, 2016. Id. at 25. 4 At Step Two, Judge Gill found that W.W. suffered from one severe impairment: “status5 post remote abdominal surgery.” Id. Judge Gill found W.W.’s Crohn’s disease, cataracts, and 6 overactive bladder were not severe impairments. Id. at 25. Judge Gill explained that the “records 7 do not suggest the conditions have lasted the requisite durational period, are worsening, 8 unresolved, or even more than minimally limit the claimant’s ability to perform basic work 9 activities.” Id. Judge Gill found W.W.’s Diabetes Mellitus was not a severe impairment for the 10 following reasons: 11 [T]he claimant is not insulin dependent, and the [Diabetes Mellitus] has not resulted in end organ damage, chronic heart failure, 12 amputation or hospitalizations from hypoglycemic shock. There is no retinopathy or neuropathy reported. Overall, there are no indications 13 the claimant’s [Diabetes Mellitus] would result in work limitations. 14 Id. Judge Gill then found that W.W.’s obesity was not a severe impairment because there was no 15 evidence of any difficulty working as a result of her obesity. Id. at 26. 16 Lastly, Judge Gill found that W.W.’s depression and substance abuse disorder (cannabis) 17 were not severe impairments because they “do not cause more than minimal limitation in the 18 claimant’s ability to perform basic mental work.” Id. at 26. Judge Gill determined that the 19 W.W.’s mental impairments caused only “mild” limitations in the four functional areas set forth in 20 Paragraph B criteria in 20 C.F.R. Part 303, Subpart P, Appendix 1. Id. For the first function area 21 of “understanding, remembering, or applying information,” Judge Gill explained that W.W. can 22 attend to personal care without interference, prepare simple meals, perform household chores, 23 drive a car independently, shop for household items, and handle her personal finances. Id. For the 24 second functional area of “interacting with others,” Judge Gill explained that the record was 25 devoid of any evidence of a “history of altercations, evictions, firings due to interpersonal 26 conflicts, fear of strangers, avoidance of interpersonal relationships or personal isolation.” Id. at 27 27. For the third functional area of “concentrating, persisting, or maintaining pace,” Judge Gill 1 which indicated that W.W. did not have cognitive work restrictions. Id. Judge Gill also cited Dr. 2 Kollath’s findings that W.W. could focus on work activities and stay on task at a sustained rate. 3 Id. For the fourth and final functional area of “adapting or managing oneself,” Judge Gill 4 explained W.W. denied prior psychiatric hospitalizations and noted W.W.’s composure at the 5 hearing. Id. 6 Judge Gill then assessed the opinions of the medical experts as follows: 7 Great weight is afforded to the opinions of the consultative examiners, John Prosise, Ph.D. and Ute Kollath, Ph.D. as well as the consulting 8 opinions of E. Bergmann-Harms, Ph.D. and D. Funkenstein, M.D. all of whom conclude the claimant would not have cognitive or social 9 work limitations from mental impairment . . . . Little weight is afforded to the opinion of Raymond J. Friedman, M.D., Ph.D. who 10 concluded the claimant would have work limitations from mental impairment . . . . Little weight is also afforded to the treating opinions 11 of Tenzin Youdon, LCSW and Mariposa McCall, M.D., both of whom advocated work limitations for the claimant due to mental 12 impairment. 13 Id. at 28. Judge Gill also gave minimal weight to W.W.’s GAF scores because the GAF ratings 14 are not standardized, not designated to predict outcomes, and require supporting detail. Id. at 28– 15 29. Judge Gill found that W.W.’s depression was not severe “[i]n keeping with the Prior 16 Decision.” Id. 17 At Step Three, Judge Gill found that W.W.’s impairments did not meet any listed 18 impairment. Id. at 29. Judge Gill explained that “[n]o treating or examining licensed physician 19 has mentioned findings equivalent in severity to the criteria of any listed impairment.” Id. 20 At Step Four, Judge Gill concluded that W.W. had the “residual functional capacity to 21 perform the full range of medium work as defined in 20 CFR 404.1567(c).” Id. Judge Gill then 22 assessed the consistency of W.W.’s testimony compared to the evidentiary record and found the 23 following: 24 [T]he claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the 25 claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 26 medical evidence. 27 Id. at 30. Judge Gill found irrelevant any evidence that predated W.W.’s alleged onset date. Id. 1 of medium work. Id. Judge Gill noted that W.W. had “unremarkable” and “normal” physical 2 examinations, which he found contradicted her claims of pain. Id. He noted that, in 2017 and 3 2018, W.W. “had normal range in motion, normal respiratory examination, normal ambulation, no 4 edema and some decrease in deep tendon reflexes.” Id. Judge Gill examined W.W.’s statements 5 to providers. Id. He noted that W.W. described “doing very well,” and reported that she was 6 active, working out, going shopping, and walking. Id. 7 Judge Gill then addressed the consultative examination by Dr. McMillan and concluded 8 that “there were no objective clinical findings that would support greater work imitations in 9 claimant’s residual functional capacity.” Id. at 31. Judge Gill afforded great weight to Dr. 10 McMillian’s opinion and afforded less weight to the consulting physicians who 11 “underestimat[ed]” W.W.’s functional ability. Id. Judge Gill again pointed to W.W.’s 12 “unremarkable” and “normal” physician examinations between 2015 and 2017. Id. Judge Gill 13 also explained that W.W.’s consultative examination with Dr. McMillan was also “unremarkable” 14 and gave the following explanation: 15 During the interview, the claimant reported no other problems apart from her abdominal issues. She did not require a cane for ambulation. 16 She had full range of motion and good grip strength. There was no edema in the lower extremities and no pain with gait. She had full 17 bilateral weight-bearing as well as normal deep tendon reflexes and straight leg raises. — 18 — 19 Id. 20 Judge Gill further found W.W.’s inconsistencies weighed against her claim for disabling 21 impairments. Id. at 31. Judge Gill highlighted two inconsistent statements: (1) that W.W. stated 22 on August 16, 2016 that she had two dogs at home but later denied caring for pets, and (2) that she 23 denied drug use in February 2017 but reported daily marijuana use in July 2016. Id. 24 Judge Gill then addressed the hearing testimony of the vocational expert Christopher 25 Salvo. Id. at 32. Based on the testimony, Judge Gill found that W.W. was capable of performing 26 her past relevant work as a customer service representative and a bank teller. Id. Judge Gill 27 provided the following analysis: an individual with the same age, education, and work experience as 1 the claimant could return to the claimant’s prior work as a customer service representative (DOT 205.362-026) which is light, skilled 2 work with a Specific Vocational Preparation (SVP) of six and bank teller [(]DOT 211.362-018) which is light, skilled work with a SVP 3 of five. 4 Id. Judge Gill further found that W.W.’s past work was performed “recently,” i.e., within fifteen 5 years of the date of the decision, and exceeded the requirements for substantial gainful activity. 6 Id. Judge Gill concluded it met the requirements for past relevant work. Id. Judge Gill then 7 considered the vocational expert’s testimony and compared W.W.’s “residual functional capacity 8 with the physical and mental demands” of the past relevant work and made the following 9 conclusion: 10 After considering the testimony of the vocational expert, and in comparing claimant’s residual functional capacity with the physical 11 and mental demands of this work, the undersigned finds the claimant is capable of performing past relevant work, as was actually and is 12 generally performed in the economy. 13 Id. 14 Judge Gill did not reach Step Five. 15 H. The Parties’ Arguments 16 In her motion for summary judgment, W.W. argues that she is entitled to benefits from her 17 onset date of January 12, 2016, and requests remand for a new hearing. See generally Pl.’s Mot. 18 (dkt. 31-2). First, W.W. argues that she is able to rebut the presumption of continuing 19 nondisability because her depression has increased in severity and she alleges a new impairment, 20 pre-diabetes. Id. at 3. W.W. contends that Judge Gill failed to give appropriate weight to her 21 treating mental health providers, whose opinions show that her depression has increased in 22 severity. Id. at 3. She argues that Judge Gill gave more weight to the non-examining opinions and 23 consultative examiner opinions and “failed to give either clear or convincing or specific and 24 legitimate reasons for rejecting [W.W.’s] treating sources.” Id. at 4. In her view, that the reasons 25 offered by Judge Gill are irrelevant and incorrect interpretations of the record. Id. at 4–5. W.W. 26 also argues that Judge Gill failed to consider the evidence of her pre-diabetes, which was not 27 present at the time of her prior decision. Id. at 7. Lastly, W.W. argues that Judge Gill erred at 1 demands of [W.W.’s] past relevant work.” Id. at 8 (heading capitalization altered). Specifically, 2 she contends that Judge Gill did not make findings of fact required by SSR 82-62 as to how 3 W.W.’s past work was actually performed. Id. She further argues that Judge Gill did not question 4 the vocational expert about the mental or physical demands of W.W.’s past work. Id. at 9–10. 5 W.W. requests that her case be remanded for further proceedings. Id. at 10. 6 The Commissioner argues Judge Gill’s assessment of the medical record complied with 7 agency regulations and that substantial evidence supports Judge Gill’s finding that W.W. did not 8 have a decrease in function after the prior decision. Comm’r’s Mot. (dkt. 35) at 4. The 9 Commissioner contends that Judge Gill properly evaluated the medical evidence and that his 10 conclusions are free from legal error. Id. at 5–7. The Commissioner also argues that W.W. failed 11 to show that her pre-diabetic symptoms were supported by the medical evidence and therefore 12 argues that W.W. failed to rebut the presumption of non-disability. Id. at 7–8. 13 Lastly, the Commissioner contends that Judge Gill properly found that W.W. could 14 perform her past relevant work. Id. at 9–10. The Commissioner argues that it was reasonable for 15 Judge Gill to rely on Salvo’s “uncontested testimony.” Id. at 10. The Commissioner 16 acknowledges that if Judge Gill had found that W.W. had cognitive or mental impairments, then 17 there may be an argument for a more robust finding on the specific mental demands of W.W.’s 18 past work. Id. But the Commissioner argues that since Judge Gill did not find any mental 19 impairments, he did not need to make any findings as to the mental demands of W.W.’s past 20 relevant work. Id. 21 W.W. did not file a reply brief. 22 III. ANALYSIS 23 A. Legal Standard 24 District courts have jurisdiction to review the final decisions of the Commissioner and may 25 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 26 hearings. 42 U.S.C. § 405 (g); see also 42 U.S.C. § 1383 (c)(3). 27 When reviewing the Commissioner’s decision, the Court takes as conclusive any findings 1 Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a 2 conclusion” and that is based on the entire record. Richardson v. Perales, 402 U.S. 389 , 401 3 (1971). “‘Substantial evidence’ means more than a mere scintilla,” id., but “less than a 4 preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 5 1988) (citation omitted). Even if the Commissioner’s findings are supported by substantial 6 evidence, the decision should be set aside if proper legal standards were not applied when 7 weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (quoting Flake v. 8 Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In reviewing the record, the Court must consider 9 both the evidence that supports and the evidence that detracts from the Commissioner’s 10 conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 11 F.2d 993, 995 (9th Cir. 1985)). 12 If the Court identifies defects in the administrative proceeding or the ALJ’s conclusions, 13 the Court may remand for further proceedings or for a calculation of benefits. See Garrison v. 14 Colvin, 759 F.3d 995 , 1019–21 (9th Cir. 2014). Here, W.W. seeks only remand for further 15 proceedings; she has not argued that the Court should remand with instructions to award benefits. 16 B. Whether the ALJ Erred in Weighting the Medical Evidence 17 W.W. argues that Judge Gill erred by failing to give appropriate weight to the opinions of 18 her treating mental health providers: LCSW Youdon and Dr. McCall. Pl.’s Mot. at 4. The Court 19 agrees. 20 “Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 21 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 22 (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining 23 physicians).”9 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); 20 C.F.R. § 416.927 (d). “[T]he 24 opinion of a treating physician is . . . entitled to greater weight than that of an examining 25 physician, [and] the opinion of an examining physician is entitled to greater weight than that of a — 26 — 27 9 Psychologists’ opinions are subject to the same standards as physicians’ opinions. See 20 C.F.R. § 404.1527 (a); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (applying 1 non-examining physician.” Garrison, 759 F.3d at 1012 .10 The medical opinion of a claimant’s 2 treating physician is given “controlling weight” so long as it “is well-supported by medically 3 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 4 substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527 (c)(2). When a 5 treating physician’s opinion is not controlling, it is weighed according to factors such as the length 6 of the treatment relationship and the frequency of examination, the nature and extent of the 7 treatment relationship, supportability, consistency with the record, and specialization of the 8 physician. 20 C.F.R. § 404.1527 (c)(2)–(6). Where a treating or examining physician’s opinion is 9 not contradicted by another doctor, an ALJ may reject it only for clear and convincing reasons that 10 are supported by substantial evidence. Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 1998 (9th Cir. 11 2008) (citations omitted). Even when contradicted by another doctor, such opinions may only be 12 rejected for specific and legitimate reasons supported by substantial evidence in the record. Id. 13 Unlike physicians and psychologists, the regulations do not treat social workers as 14 “acceptable medical sources.” 20 C.F.R. § 1527 (a), (f); see 20 C.F.R. § 404 .1520c for claims filed 15 on or after March 27, 2017. Instead, the regulations treat “[p]ublic and private social welfare 16 agency personnel” as “nonmedical sources.” 20 C.F.R. § 404.1502 (e). An ALJ may disregard the 17 opinion of a social worker, or other nonmedical source, only if the ALJ “‘gives reasons germane to 18 each witness for doing so.’” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) 19 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2011)). 20 1. Dr. McCall 21 Judge Gill erred in giving little weight to the opinions of Dr. McCall, W.W.’s treating 22 psychiatrist who had multiple appointments with W.W. over five months. Judge Gill’s 23 explanations for rejecting the opinion of Dr. McCall are not supported by substantial evidence and 24 instead conflict with the medical record. See Holohan v. Massanari, 246 F.3d 1196 , 1207 (9th — 25 — — 26 — 10 The regulations governing treatment of medical evidence have been amended with respect to 27 applications filed on or after March 27, 2017. Compare 20 C.F.R. § 404.1527 with 20 C.F.R. § 404 .1520c. Because W.W. filed her application before that date, the older framework applies 1 Cir. 2001) (holding that an ALJ’s “specific reason for rejecting [a treating physician’s] medical 2 opinion [was] not supported by substantial evidence” where the ALJ “selectively relied on some 3 entries in [the claimant’s] records . . . and ignored the many others that indicated continued, severe 4 impairment”). Judge Gill rejected Dr. McCall’s opinion because the “record [did] not contain 5 evidence of a history of altercations, evictions, firings due to interpersonal conflicts, fear of 6 strangers, avoidance of interpersonal relationships or personal isolation.” AR at 28. Judge Gill 7 ignored, however, that Dr. McCall’s reports that W.W. self-isolated were consistent with other 8 evidence. Id. at 756 . Specifically, LCSW Youdon reported that W.W. had gotten into a “heated 9 argument” her hairdresser and W.W. testified that she suffers from personal isolation. Id. at 62– 10 63, 719. Judge Gill also ignored W.W.’s treatment with PA Rene whose opinions were consistent 11 with Dr. McCall’s assessments that W.W.’s depression was not improving despite increasing the 12 dosage of W.W.’s antidepressants. Judge Gill’s selective focus on perceived conflicts in the 13 record, without addressing consistent reports of isolation and serious depression that did not 14 respond to medication, does not meet the high bar of specific and legitimate reasons to reject the 15 opinions of a treating physician. 16 2. LCSW Youdon 17 Judge Gill erred in giving little weight to LCSW Youdon, who had weekly therapy 18 sessions with W.W. for almost two years. Because LCSW Youdon was a social worker, Judge 19 Gill needed to provide “germane reasons” for disregarding her testimony. See Lewis, 236 F.3d at 20 511. Judge Gill found LCSW Youdon’s opinion was inconsistent with the medical evidence and 21 the medical opinions of Drs. Prosise, Kollath, Bergmann-Harms, and Funkenstein. Although 22 inconsistency with medical evidence may be a germane reason, see Bayliss v. Barnhart, 427 F.3d 23 1211, 1218 (9th Cir. 2005), LCSW Youdon’s opinion was consistent with much of the record. As 24 stated above, Judge Gill’s reasoning that the record lacked evidence of interpersonal difficulty was 25 not supported by the record and was inaccurate. Judge Gill also rejected LCSW Youdon and Dr. 26 McCall’s opinions because W.W. reported receiving a $20,000 home improvement loan from the 27 City of Richmond but omits LCSW Youdon’s later reports that W.W. was unable to manage the 1 improvements because it had become “too much”). Judge Gill also ignored two years of PHQ-9 2 testing conducted by Dr. McCall and LCSW Youdon which consistently demonstrated that W.W. 3 suffered from severe depression. By failing to address LCSW Youdon’s specific findings, Judge 4 Gill did not provide germane reasons for rejecting the opinions of LCSW Youdon, who had seen 5 W.W. longer than any other medical provider in the record and had provided detailed explanations 6 accompanying each weekly appointment over the course of W.W.’s two-year treatment. See 20 7 C.F.R. § 404.1527 (f)(2) (recognizing that a social worker’s opinion may be entitled to more 8 weight than an acceptable medical source if the social worker “has seen the individual more often 9 than the treating source, has provided better supporting evidence and a better explanation for the 10 opinion, and the opinion is more consistent with the evidence as a whole”). 11 3. Dr. Prosise 12 Without reaching the question of whether this potential error would be sufficient on its 13 own for remand, it is not clear why Judge Gill gave great weight to the opinions of Dr. Prosise, 14 who evaluated W.W. in 2013—three years prior to her alleged onset date and outside the 15 applicable period of alleged disability. Judge Gill rejected Dr. Friedmann’s 2014 opinion because 16 it was “prior to the adjudicatory period.” AR at 28. Judge Gill did not explain why it was 17 appropriate to give great weight to Dr. Prosise’s opinion when it preceded Dr. Friedman’s opinion 18 and was also “prior to the adjudicatory period.” See id. 19 4. Dr. Kollath 20 Judge Gill’s reasoning for giving Dr. Kollath’s opinion great weight is not well supported. 21 The Commissioner argues that Judge Gill appropriately weighed Dr. Kollath’s opinion because it 22 “was based on [Dr. Kollath’s] own clinical examination” of W.W. Comm’r’s Mot. at 6. But the 23 opinions of a doctor who conducts a one-time examination generally are entitled to less weight 24 than are the opinions of treating sources, who “‘are likely to be the medical professionals most 25 able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may 26 bring a unique perspective to the medical evidence that cannot be obtained from the objective 27 medical findings alone or from reports of . . . consultative examinations.’” Hunt v. Berryhill, No. 1 § 404.1527(c)(2)). In support of Dr. Kollath’s opinion, Judge Gill stated that W.W. presented with 2 good cognition at her examination and during the hearing. AR at 28. The fact that W.W. was 3 “attentive” on two occasions is not substantial evidence justifying Judge Gill’s rejection of 4 W.W.’s treating providers. See Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th 5 Cir. 2011) (holding that a claimant does not “need to be utterly incapacitated in order to be 6 disabled” (internal citations and quotation marks omitted)). 7 5. Drs. Bergmann-Harms and Funkenstein 8 Judge Gill also erred in giving great weight to Drs. Bergmann-Harms and Funkenstein, the 9 state agency physicians who did not treat or examine W.W. Judge Gill did not explain why these 10 physicians were entitled to greater weight compared to W.W.’s treating providers, and failed to 11 address the fact that the state agency consultants did not review all of W.W.’s medical record 12 before reaching their opinions, since their opinions were rendered before W.W. began treatment 13 with Dr. McCall and over a year before the completion of W.W.’s two-year treatment with LCSW 14 Youdon. See Herron v. Astrue, 407 F. App’x 139, 141 (9th Cir. 2010) (holding that an ALJ erred 15 in assigning great weight to the non-examining physician when that physician “did not review a 16 substantial portion of the relevant medical evidence, including the records from [claimant’s] 17 treating physicians and nurse practitioner” (citing 20 C.F.R. §§ 404.1527 (a)–(e), (f)(2)(ii))). 18 C. Whether the ALJ Erred in Applying the Presumption of Non-Disability 19 In the Ninth Circuit, an ALJ’s finding that a claimant is not disabled “create[s] a 20 presumption that [the claimant] continued to be able to work after that date.” Lester, 81 F.3d at 21 827 (quoting Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985)). While the principles of res 22 judicata apply to administrative decisions, the doctrine is applied less rigidly to administrative 23 proceedings than to judicial proceedings. Chavez, 844 F.2d at 693 . To overcome this 24 presumption, a claimant must prove “changed circumstances indicating a greater disability.” Id. 25 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)); see also Acquiescence Ruling 9726 4(9), 1997 WL 742758 , at *3 (Dec. 3, 1997) (“A claimant may rebut the presumption by showing 27 a ‘changed circumstance’ affecting the issue of disability with respect to the unadjudicated period, 1 the severity of the claimant’s impairment(s), the alleged existence of an impairment(s) not 2 previously considered, or a change in the criteria for determining disability.”). Under Chavez, 3 even if a claimant rebuts the continuing presumption of non-disability after a prior final 4 administrative decision, the Court is still required to give effect to certain findings contained in the 5 prior ALJ’s decision, including findings in the five-step evaluation process for determining 6 disability. See Acquiescence Ruling 97-4(9), 1997 WL 742758 , at *3. 7 If the claimant produces “new and material evidence” that was not presented to the prior 8 ALJ, the presumption of non-disability will be successfully rebutted and the prior ALJ’s findings 9 will not be entitled to res judicata. Id. Evidence is considered “material” when it “bear[s] directly 10 and substantially on the matter” and “there is a reasonable possibility that the new evidence would 11 have changed the outcome.” Walters v. Colvin, 213 F. Supp. 3d 1223 , 1226–27 (N.D. Cal. 2016) 12 (quoting Luna v. Astrue, 623 F.3d 1032, 1033 (9th Cir. 2010)); see also HALLEX I-5-4-60 13 (“[N]ew evidence is ‘material’ if, for the purposes of adjudicating the current claim, the evidence 14 warrants a finding on residual functional capacity, education, work experience or other findings 15 required at a step in the sequential evaluation process different than that made in the decision on 16 the prior claim.”). Using this standard, the second ALJ must “determine whether [the claimant’s] 17 current circumstances [are] different from those found by the first ALJ.” Draiman v. Berryhill, 18 No. CV 17-747-KS (KLS), 2018 WL 895445 , at *4 (C.D. Cal. Feb. 13, 2018) (quoting Johnson v. 19 Astrue, 358 F. App’x 791, 792 (9th Cir. 2009)). 20 Here, W.W. contends that she has established two changed circumstances. She argues that 21 Judge Gill failed to consider her diagnosis of pre-diabetes which was not present at the time of the 22 prior decision. Pl.’s Mot. at 7. She also argues that Judge Gill failed to give appropriate weight to 23 the opinions of her treating mental health providers which demonstrate that her depression has 24 increased in severity. Id. at 3–8. 25 First, the Commissioner does not dispute that W.W. was newly diagnosed with pre26 diabetes and argues instead that W.W.’s allegations of pre-diabetes is not sufficient to prove 27 changed circumstances because she must also show “greater disability.” Comm’r’s Mot. at 9. 1 would preclude the application of res judicata,” it is also not appropriate to apply res judicata 2 where the claimant alleges new impairments. See Lester, 81 F.3d at 827 (“[T]he Commissioner 3 may not apply res judicata where the claimant raises a new issue, such as the existence of an 4 impairment not considered in the previous application.”). The Ninth Circuit does not require a 5 claimant to establish a new and severe impairment in order to rebut the presumption of continuing 6 non-disability. Vasquez v. Astrue, 572 F.3d 586 , 598 n.9 (“[A]ll an applicant has to do to preclude 7 the application of res judicata is raise a new issue in the later proceeding.”). Accordingly, Judge 8 Gill erred in finding W.W.’s new impairment of pre-diabetes did not rebut the presumption of 9 continuing non-disability. 10 Second, as stated above, Judge Gill failed to give appropriate weight to W.W.’s treating 11 mental health providers whose opinions postdated the prior administrative hearing and 12 “necessarily presented new and material information not presented to the first ALJ.” See Stubbs13 Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008). LCSW Youdon opined that W.W. was 14 “more depressed than ever.” Id. at 686. PA Rene and Dr. McCall increased W.W.’s prescription 15 multiple times. Id. at 709–11, 756. Dr. McCall also prescribed alternative antidepressants but 16 indicated that the medication was no longer effective in regulating W.W.’s depression: 17 Despite good medication adherence and medication adjustments and changes, [W.W.] continues to report feeling very depressed, anxious, 18 irritable, amotivated, with little interest in things, isolating because is easily annoyed. — 19 — 20 Id. at 756. This differs from Judge Parnow’s prior finding that W.W. was stable on her 21 antidepressants. Id. at 120. Furthermore, Judge Gill’s finding that a new analysis was warranted 22 is sufficient to show that the evidence was “material.” See HALLEX I-5-4-60. Accordingly, 23 Judge Gill erred in finding that W.W. failed to rebut the presumption of continuing non-disability. 24 D. Whether the ALJ Erred in Failing to Address the Requirements of Past Relevant Work — 25 — 26 At Step Four, “claimants have the burden of showing that they can no longer perform their 27 past relevant work.” Pinto v. Massanari, 249 F.3d 840 , 844–45 (9th Cir. 2001) (citing 20 C.F.R. 1 the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the 2 requisite factual findings to support his conclusion.” Id. (citing SSR 82-62; 20 C.F.R. 3 §§ 404.1571 and 416.971, 404.1574 and 416.974, 404.1565 and 416.965.3). In Pinto v. 4 Massanari, the Ninth Circuit explained that “[t]his is done by looking at the ‘residual functional 5 capacity and the physical and mental demands’ of the claimant’s past relevant.” Id. (citing 20 6 C.F.R. §§ 404.1520 (e) and 416.920(e)). 7 Under SSR 82-61, a claimant is capable of performing past relevant work if the claimant 8 can perform either: “1. The actual functional demands and job duties of a particular past relevant 9 job; or 2. The functional demands and job duties of the occupation as generally required by 10 employers throughout the national economy.” SSR 82-61. Regardless of which test is applied, 11 where an ALJ makes a finding of disability on this basis, the ALJ must make “specific findings as 12 to the claimant’s residual functional capacity, the physical and mental demands of the past 13 relevant work, and the relation of the residual functional capacity to the past work.” Pinto, 249 14 F.3d at 845 (citing SSR 82-62). 15 SSR 82-62 underscores the importance of specific factual findings at this stage of the 16 analysis, noting that “[s]ince this is an important and, in some instances, a controlling issue,” the 17 ALJ’s determination has “far-reaching implications and must be developed and explained fully.” 18 SSR 82-62, 1982 WL 31386 , at *3. It elaborates: 19 Determination of the claimant’s ability to do [past relevant work] requires a careful appraisal of (1) the individual’s statements as to 20 which past work requirements can no longer be met and reason(s) for his or her inability to meet those requirements; (2) medical evidence 21 establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, 22 supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the 23 requirements of the work as generally performed in the economy. — 24 — Id. Failure to make specific factual findings in support of the conclusion that a claimant can 25 perform past relevant work constitutes legal error that warrants reversal. See Pinto, 249 F.3d at 26 847 (“[R]equiring the ALJ to make specific findings on the record at each phase of step four 27 analysis provides for meaningful judicial review. When . . . the ALJ makes findings only about 1 [vocational expert’s] head, we are left with nothing to review.” (quoting Winfrey v. Chater, 92 2 |} F.3d 1017, 1025 (10th Cir. 1996)) (some alterations in original)). 3 Judge Gill determined that W.W. was capable of performing her past relevant work as a 4 || customer service representative and a bank teller “as was actually and is generally performed in 5 || the economy.” AR at 32. W.W. argues that Judge Gill erred in failing to make any findings as to 6 || the specific requirements of the physical or mental requirements of W.W.’s past work. The 7 || Commissioner argues that Judge Gill did not need to make any findings as to the mental demands 8 of W.W.’s work because Judge Gill found W.W. did not have any mental impairments. Comm’r’s 9 || Mot. at 10. As stated above, Judge Gill erred in weighing the medical evidence and the Court is 10 || not convinced that substantial evidence supports Judge Gill’s finding of no mental impairments. 11 Based on the current record, the Court cannot determine whether W.W. is capable of performing 12 || past work as was actually or is generally performed in the economy, whether the mental demands E 13 of that past work are relevant to the inquiry, or whether W.W. is capable of performing any other 14 || kind of substantial gainful work which exists in the national economy. Accordingly, further 3 15 || proceedings are required. 16 | Iv. CONCLUSION i 17 For the reasons stated above, W.W.’s motion is GRANTED and the Commissioner’s Z 18 || motion is DENIED. The Court reverses the ALJ’s decision and REMANDS W.W.’s claim for 19 || further administrative proceedings consistent with this order. The Clerk shall enter judgment in 20 || favor of W.W. and close the case. 21 IT IS SO ORDERED. 22 || Dated: September 24, 2021 23 hn Cz JASEPH C. SPERO 24 hief Magistrate Judge — 25 — — 26 — — 27 — — 28 —