Pellegrini v. Saul

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 J.P., Case No. 20-cv-08253-LB 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGEMNT AND DENYING 14 ANDREW SAUL, DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 15 Defendant. Re: ECF No. 14, 18 [16] 17 INTRODUCTION 18 The plaintiff J.P. seeks judicial review of a final decision by the Commissioner of the Social 19 Security Administration denying his claim for social-security disability insurance (SSDI) benefits 20 under Title II of the Social Security Act.1 The plaintiff moved for summary judgement, the 21 Commissioner opposed the motion and filed a cross-motion for summary judgement, and the 22 plaintiff filed a reply.2 Under Civil Local Rule 16-5, the matter is submitted for decision without 23 oral argument. The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, 24 and remands for further proceedings. [27] 1 Mot. – ECF No. 14 at 5. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 STATEMENT 2 1. Procedural History 3 The plaintiff applied for SSDI benefits on August 6, 2014.3 The Commissioner denied his claim 4 on February 18, 2015, and again on August 11, 2015.4 On August 20, 2015, the plaintiff asked for a 5 hearing before an Administrative Law Judge (ALJ).5 On May 23, 2017, the ALJ held a hearing and 6 heard testimony from a vocational expert (VE) and the plaintiff.6 The ALJ issued an unfavorable 7 decision on May 23, 2017.7 On April 26, 2018, the Appeals Council denied the plaintiff’s request for 8 review.8 The plaintiff then filed a civil action seeking judicial review of the Commissioner’s decision 9 on May 23, 2017, and the district court remanded the case for further proceedings on June 11, 2019.9 10 On February 4, 2020, the ALJ held a hearing and heard testimony from the plaintiff and a vocational 11 expert.10 The ALJ issued a second unfavorable decision on April 17, 2020.11 On October 22, 2020, 12 the Appeals Council upheld the decision, and the ALJ’s decision became the final administrative 13 decision.12 The plaintiff filed this action on November 23, 2020, and the parties each moved for 14 summary judgment.13 All parties consented to the undersigned’s jurisdiction.14 [15] 16 2. Medical Records 17 The plaintiff contended that he was disabled because of the following conditions: anxiety, 18 panic disorder, depression, chronic lower-back pain, sleep apnea, chronic fatigue, chronic [20] 3 AR 177–84. 4 AR 104; AR 110. [21] 5 AR 116. 22 6 AR 34–66; AR 507–21. [23] 7 AR 15–29. 8 AR 1–3. [24] 9 AR 554–581. 25 10 AR 479–503. [26] 11 AR 507–521. 12 AR 446–49. [27] 13 Compl. – ECF No. 1; Mot. – ECF No.14; Cross-Mot. – ECF No. 18. 1 prostatitis, and acid reflux.15 The following records were submitted at the first administrative 2 hearing: (1) records from Russell Alpert, M.D., a primary-care physician;16 (2) records from Ralph 3 Palmer, M.D., a treating psychiatrist;17 (3) and records from state non-examining medical 4 consultants Rebecca Hansmann, Psy.D., S. Amon, M.D., D. Haaland, M.D., and L. Colsky, M.D.18 5 The second administrative hearing included records submitted from Natasha Krikorian, Psy.D, an 6 examining clinical psychologist.19 Because the plaintiff challenges the ALJ’s weighing of the 7 medical records, this order summarizes the disputed opinions. 8 2.1.1. Russel Alpert, M.D. — Treating Physician 9 Dr. Alpert was the plaintiff’s primary-care physician and saw him many times between 10 February 6, 2012 and January 16, 2013.20 11 On February 6, 2012, the plaintiff complained of worsened anxiety and panic attacks because a 12 work transfer required him to drive a long distance on the freeway. 21 Dr. Alpert prescribed 13 Rozerem and Xanax to treat the plaintiff’s chronic anxiety, panic attacks, and insomnia, gave a 14 note for time off work, and diagnosed the plaintiff with anxiety.22 15 On July 18, 2012, Dr. Alpert diagnosed the plaintiff with chronic prostatitis and anxiety. The 16 plaintiff had been out of work since the beginning of the week and needed a Xanax refill that he 17 used “sparingly”.23 Dr. Alpert saw the plaintiff on August 3, 2012, noted that he missed work that 18 week due to his anxiety, and diagnosed him with anxiety. The plaintiff was alert and oriented with 19 no acute distress. The plaintiff appeared anxious and had a normal thought process.24 [21] 15 AR 214. 22 16 AR 342–68. [23] 17 AR 416–24; AR 429–31; AR 443–45; AR 735–37. 18 AR 82–100. [24] 19 AR 719–29. 25 20 AR 343–68. [26] 21 AR 352. 22 Id. [27] 23 AR 342. 1 Dr. Alpert examined the plaintiff on August 14, 2012, and diagnosed him with anxiety, 2 chronic prostatitis, and GERD. 25 The plaintiff complained of anxiety and an inability to go to 3 work because he did not like leaving the house.26 He appeared moderately anxious, unshaven, and 4 perseverating over his physical ailments. 27 Dr. Alpert referred the plaintiff to a psychiatrist. 28 On 5 September 5, 2012, Dr. Alpert examined the plaintiff and diagnosed him with anxiety and 6 agoraphobia with panic attacks.29 On September 14, 2012, Dr. Alpert noted that the plaintiff was 7 “very anxious,” “feeling depressed,” and “went to Sutter ER for anxiety.” He diagnosed him with 8 anxiety and acute depression.30 Three days later, on September 17, 2012, Dr. Alpert saw the 9 plaintiff, who said that he had not slept for two days.31 Again, the diagnosis was anxiety.32 10 On October 15, 2012, Dr. Alpert saw the plaintiff following his hospitalization at John Muir 11 hospital.33 The plaintiff was “slowly improving” and “obsessed” with potential side effects from 12 his prescribed medication.34 He assessed his social and psychosocial habits as alert, oriented, and 13 with no acute distress.35 He appeared mildly anxious, with a normal thought process, mood, and a 14 slightly flat affect.36 His diagnoses had not changed and were acute depression and anxiety.37 On 15 December 3, 2012, Dr. Albert’s psychiatric evaluation was that the plaintiff had “anxious slight 16 psychomotor agitation” and a “normal thought process,” and his chronic prostatitis and chronic [18] 19 25 AR 351. [20] 26 AR 349. 27 AR 350. [21] 28 AR 351. 22 29 AR 348. [23] 30 AR 354. 31 AR 357. [24] 32 AR 359. 25 33 AR 363. [26] 34 Id. 35 AR 364. [27] 36 Id. 1 temporomandibular joint dysfunction (TMJ) likely were exacerbated by his anxiety. 38 The 2 plaintiff was unable to tolerate the CPAP machine for his sleep apnea.39 3 On January 16, 2013, the plaintiff suffered from severe anxiety and insomnia and required a 4 psychiatric follow up. His chronic prostatitis was “clinically improving.”40 5 2.1.2. Rolf Palmer, M.D. — Treating Psychiatrist 6 Rolf Palmer, M.D., treated the plaintiff from October 18, 2012 to June 7, 2019, and diagnosed 7 him with major depression, anxiety disorder, panic attacks, and agoraphobia.41 8 On November 26, 2012, Dr. Palmer described the plaintiff as “wildly depressed, wildly 9 anxious” and “above all fragile, defensive.” 42 On June 8, 2013, Dr. Palmer described the 10 plaintiff’s baseline as “always anxious, alarmed with racing thoughts” and fatigue.43 On October 11 18, 2013, he noted that the plaintiff’s physical complaints prevented him from working, but that he 12 was “somewhat obsessive about things.”44 He increased the plaintiff’s Zoloft medication on March 13 21, 2014.45 That day, the plaintiff reported that he got his job back but subsequently resigned.46 On 14 August 8, 2014, Dr. Palmer encouraged the plaintiff to apply for Social Security disability benefits 15 based on his physical complaints (sleep apnea, obesity, chronic prostatitis, and lower-back pain) as 16 well as his mental-health issues.47 During a December 2014 visit, his mother drove him to his 17 psychiatric evaluation because he suffered from panic attacks while driving on the freeway.48 As a 18 result of the plaintiff’s agoraphobia, he did not leave the house.49 [20] 38 AR 368. 39 AR 366. [21] 40 AR 360–62. 22 41 AR 416–24; AR 429–31; AR 443–45; AR 735–37. [23] 42 AR 420. 43 AR 418. [24] 44 AR 417. 25 45 AR 416. [26] 46 Id. 47 Id. [27] 48 Id. 1 On September 6, 2015, Dr. Palmer said that the plaintiff’s anxiety continued to hinder his 2 ability to drive.50 He described the plaintiff as perseverating on his physical ailments and poorly 3 shaven, and he noted that the plaintiff had not left the house for weeks because of his 4 agoraphobia.51 On January 26, 2016, Dr. Palmer described the plaintiff’s condition as unchanged 5 since September, described his anxiety was “fairly well controlled,” and said that his sleep 6 condition affected his motivation.52 On October 21, 2016, the plaintiff continued at his baseline, 7 with a steady diagnosis of panic disorder with agoraphobia.53 On February 10, 2017, the plaintiff 8 remained “impaired,” never leaving his house due to chronic fatigue and continued agoraphobia. 9 Dr. Palmer questioned the plaintiff’s desire to improve his mental health but also noted that the 10 plaintiff’s resistance to change was a prominent feature of his condition for five years.54 11 By June 2017, the plaintiff’s condition remained the same. He was still “impaired” and unable 12 to work in December 2018.55 The plaintiff rarely left his home and had a low motivation to 13 manage many tasks.56 When he evaluated the plaintiff on June 7, 2019, Dr. Palmer described the 14 plaintiff’s life as “very frugal,” noted that he would not complete basic tasks (such as laundry) 15 until a “crisis” occurred, and called his procrastination “fatal.”57 Between June 2019 to December 16 2019, the plaintiff’s condition remained unchanged.58 17 2.1.3. Natasha Krikorian, Psy.D. — Examining Clinical Psychologist 18 On November 24, 2019, Dr. Krikorian conducted a consultative psychological examination on 19 the plaintiff at the Social Security Administration’s request.59 Dr. Krikorian reviewed the treating [21] 50 AR 444. 22 51 Id. [23] 52 Id. 53 AR 445. [24] 54 Id. 25 55 AR 735–37. [26] 56 AR 737. 57 Id. [27] 58 Id. 1 psychiatrist’s medical records from 2014–2017 and conducted a mental-status exam and other 2 psychological evaluations.60 3 Dr. Krikorian conducted a Mini Mental State Examination (MMSE), a thirty-point 4 questionnaire test that screens for cognitive impairment, and found that the plaintiff was 5 unimpaired.61 A score greater than or equal to twenty-five points is “effectively normal,” and the 6 plaintiff scored a thirty out of thirty.62 The results demonstrated that the plaintiff had no difficult 7 following simple or complex directions, and overall cognitive functioning was unimpaired.63 The 8 plaintiff appeared to have impaired emotional functioning.64 His IQ was average, in the thirtieth 9 percentile.65 His verbal comprehension was average, perceptual reasoning was low average, 10 working memory was low average, and processing speed was low average.66 For the tests of 11 memory skills, the plaintiff was in the fifth percentile for immediate memory, the twenty-first 12 percentile for delayed memory, the tenth percentile for auditory memory, and the nineteenth 13 percentile for visual memory.67 He was in the impaired range for the Trail Making Test, which 14 measures the presence of possible brain damage, visual attention, task switching, mental 15 flexibility, processing speed, and executive functioning.68 16 Dr. Krikorian diagnosed the plaintiff with unspecified anxiety disorder, agoraphobia, and 17 unspecified depressive disorder.69 The plaintiff did not have an impaired ability to understand, 18 remember, and perform simple or complex written and oral instructions, or an inability to maintain [21] 60 AR 719–29. 22 61 AR 722. [23] 62 Id. 63 Id. [24] 64 Id. 25 65 AR 723. [26] 66 Id. 67 AR 724. [27] 68 Id. 1 concentration during a normal workday.70 The plaintiff did have moderate to marked impairments 2 in his ability to adapt to work stress or changes in a work setting, perform scheduled activities, 3 maintain regular attendance, and complete a normal workday or workweek without interruptions 4 from his psychiatric conditions.71 He could handle funds in his own best interest.72 5 2.1.4. State Non-Examining Medical Consultants 6 Medical consultants Rebecca Hansmann, Psy.D., D. Haaland, M.D., S. Amon, M.D., and L. 7 Colsky, M.D., reviewed the plaintiff’s medical records.73 Their findings are summarized in a 8 disability-determination evaluation report at the reconsideration level.74 Based on their review of 9 the plaintiff’s medical history, the consultants diagnosed the plaintiff with (1) severe disorders of 10 the urinary tract, (2) severe spine disorder, (3) severe anxiety disorder, and (4) non-severe 11 affective disorder.75 They concluded that the plaintiff’s impairments did not impose more than 12 moderate limitations and designated him not disabled.76 [13] 14 3. Administrative Proceedings 15 3.1. Disability-Determination Explanations 16 During the administrative process, non-examining doctors generated two disability17 determination explanations, one related to the plaintiff’s initial application and one at the 18 reconsideration level. [23] 70 AR 725–26. [24] 71 AR 726. 25 72 Id. [26] 73 AR 82–100. 74 Id. [27] 75 AR 91. 1 At the initial level, the state doctors found the following impairments to be severe: (1) other 2 disorders of the urinary tract, (2) spine disorders, and (3) anxiety disorders.77 The doctors found 3 the plaintiff to be not disabled despite the identification of these impairments.78 4 On reconsideration, the doctors found the following impairments to be severe: (1) anxiety 5 disorders, (2) other disorders of the urinary tract, and (3) spine disorders.79 The doctors again 6 found the plaintiff to be not disabled despite the identification of these impairments.80 7 3.2. Administrative Hearing 8 The ALJ held a hearing on February 4, 2020. The plaintiff appeared and testified. VE Jose 9 Chaparro testified by telephone.81 10 3.2.1. Plaintiff’s Testimony 11 The ALJ questioned the plaintiff. He testified that he was 49 and lived in Antioch, California, 12 with his mother.82 He stopped attending school in 10th grade, did not complete his high-school 13 education, and has no vocational training.83 He worked as a meat clerk at Lucky’s supermarket for 14 twenty years until August 2012 and has not worked since.84 His duties included packaging meat, 15 stocking supplies, setting up food counters, and customer service.85 Due to his anxiety and 16 agoraphobia, he was unable to maintain a stable work schedule and would call in sick three to four 17 times a month.86 To minimize his anxiety, he requested the “least stressful shifts” and specifically 18 asked for part-time work hours.87 While working at Lucky’s, he would get panic attacks and hide [20] 77 AR 73. [21] 78 AR 79. 22 79 AR 91. [23] 80 AR 98. 81 AR 481–503. [24] 82 AR 483. 25 83AR 484. [26] 84 Id. 85 Id. [27] 86 AR 484–85. 1 in the bathroom.88 He described experiencing a panic attack as “think[ing] you’re dying” and 2 having an accelerated heart rate and feeling dizzy.89 His anxiety is caused by worrisome situations, 3 such as being at work at a certain time, but has improved since he stopped working.90 4 The plaintiff rarely leaves his house since he stopped working.91 As a result, it would be 5 difficult for him to receive more frequent treatment because he depends on his mother to drive him 6 to his doctor’s appointments. He does not have active friendships and socializes only at occasional 7 family events.92 8 The ALJ asked the plaintiff how his “TMJ” was doing, and he responded that it hurts every 9 day and makes his ears ring, and he manages his pain with Ibuprofen.93 The ALJ also asked 10 plaintiff about his sleep apnea and difficulty sleeping.94 The plaintiff answered that he “wake[s] up 11 every couple of hours” or can’t “sleep at all.”95 To manage his fatigue, chronic anxiety, and 12 agoraphobia, the plaintiff tries to maintain a simple routine and takes the highest dose of his 13 antidepressant.96 14 3.2.2. VE’s Testimony 15 VE Jose Chaparro testified telephonically at the February 4, 2020 hearing.97 The ALJ asked the 16 VE to characterize the plaintiff’s prior work according to the Dictionary of Occupational Titles.98 17 He responded that the plaintiff worked as a meat clerk, an unskilled position (medium, SVP 2).99 [20] 88 AR 488. 89 Id. [21] 90 AR 485–87. 22 91 AR 486. [23] 92 Id. 93 AR 489. [24] 94 AR 489–90. 25 95Id. [26] 96 AR 491–92. 97 AR 496–501. [27] 98 AR 498. 1 The ALJ posed the first hypothetical to the VE: a person of the claimant’s age, education, and 2 work experience limited to occasionally “lifting and carrying 20 pounds” and “sitting six hours in 3 an eight-hour day, standing, and walking six.”100 The person would “occasional[ly] climb, frequent 4 balance, and stoop, occasional kneel and frequent crouch, occasional crawl,” and could perform 5 “detailed but non-complex tasks,” but was able to interact occasionally with coworkers and the 6 public.101 The VE testified that the following jobs were available: (1) marker, (2) housekeeping, 7 (3) cleaner, and (4) routing clerk.102 8 The ALJ posed the second hypothetical to the VE. In addition to the conditions of the previous 9 hypothetical, the person was absent from work “two days a month.”103 The VE testified that no 10 jobs were available to an individual who was absent from work two days a month.104 11 The plaintiff’s representative questioned the VE. To the ALJ’s first hypothetical, he added that 12 the individual was “off task 10 to 15 percent of the time.”105 The VE testified that no jobs were 13 available to an individual.106 14 3.3. ALJ Findings 15 The ALJ analyzed the five-step process to determine whether the plaintiff was disabled and 16 determined that he was not. 17 At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity 18 since the application date on August 4, 2016.107 [23] 100 AR 498–99. 101 AR 499. [24] 102 Id. 25 103 AR 500. [26] 104 Id. 105 AR 501. [27] 106 Id. 1 At step two, the ALJ found that the plaintiff had the following severe impairments: (1) anxiety 2 disorders (including panic disorder and agoraphobia); (2) depressive disorder; personality 3 disorder; (3) spine disorder; (4) obesity; and (5) urinary tract disorder.108 4 At step three, the ALJ found that the plaintiff did not have an impairment or combination of 5 impairments that met or medically equaled the severity of a listed impairment.109 6 Before reaching step four, the ALJ determined the plaintiff’s RFC: 7 The plaintiff has the residual functional capacity to perform less than the full range of light work. He can lift and carry 20 pounds occasionally and 10 pounds 8 frequently; can sit for 6 hours in an 8-hour workday; can stand and walk for 6 hours in an 8-hour workday; can push and pull as much as he can lift or carry; can [9] occasionally climb ramps, stairs, ladders, ropes, or scaffolds; can frequently 10 balance, stoop, kneel, and crouch; and can occasionally crawl. He can perform detailed, but noncomplex tasks and is able to interact occasionally with coworkers 11 and the public.110 12 At step four, the ALJ found that the plaintiff was unable to perform any past relevant work.111 13 At step five, the ALJ found that the following jobs were available to the plaintiff: (1) marker; 14 (2) housekeeping cleaner; and (3) routing clerk.112 15 The ALJ found that the plaintiff was “capable of making a successful adjustment to other work 16 that existed in significant numbers in the national economy” and concluded that the plaintiff was 17 “not disabled.”113 18 STANDARD OF REVIEW 19 Under 42 U.S.C. § 405 (g), district courts have jurisdiction to review any final decision of 20 the Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 21 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 22 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 23 [24] 108 AR 459. 25 109 Id. [26] 110 AR 461. 111 AR 472. [27] 112 AR 473. 1 586, 591 (9th Cir. 2009) (cleaned up); 42 U.S.C. § 405 (g). “Substantial evidence means more than 2 a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 4 Cir. 1995). The reviewing court should uphold “such inferences and conclusions as the 5 [Commissioner] may reasonably draw from the evidence.” Mark v. Celebrezze, 348 F.2d 289 , 293 6 (9th Cir. 1965). If the evidence in the administrative record supports the ALJ’s decision and a 7 different outcome, the court must defer to the ALJ’s decision and may not substitute its own 8 decision. Tackett v. Apfel, 180 F.3d 1094 , 1097–98 (9th Cir. 1999). “Finally, [a court] may not 9 reverse an ALJ’s decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 10 1104, 1111 (9th Cir. 2012). 11 GOVERNING LAW 12 A claimant is considered disabled if (1) he suffers from a “medically determinable physical or 13 mental impairment which can be expected to result in death or which has lasted or can be expected 14 to last for a continuous period of not less than twelve months,” and (2) the “impairment or 15 impairments are of such severity that he is not only unable to do his previous work but cannot, 16 considering his age, education, and work experience, engage in any other kind of substantial 17 gainful work which exists in the national economy. . . .” 42 U.S.C. § 1382c(a)(3)(A) & (B). The 18 five-step analysis for determining whether a claimant is disabled within the meaning of the Social 19 Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520 ). 20 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a [21] substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the 22 evaluation proceeds to step two. See 20 C.F.R. § 404.1520 (a)(4)(i). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the [23] claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 24 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments [25] described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the 26 claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 27 C.F.R. § 404.1520 (a)(4)(iii). has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If [1] the claimant cannot do any work he or she did in the past, then the case cannot be resolved at 2 step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520 (a)(4)(iv). Step Five. Considering the claimant’s RFC, age, education, and work experience, is the 3 claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520 (a)(4)(v). If the claimant is able to do other work, [4] the Commissioner must establish that there are a significant number of jobs in the national 5 economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or 6 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. 7 For steps one through four, the burden of proof is on the claimant. At step five, the burden shifts to 8 the Commissioner. Gonzales v. Sec’y of Health & Hum. Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). [9] 10 ANALYSIS 11 The plaintiff contends that the ALJ erred by (1) failing to give proper weight to medical 12 opinions and evidence, (2) rejecting his symptom testimony, and (3) finding that he did not meet 13 the Paragraph C criteria for listing 12.06 (Anxiety disorder). [14] 15 1. Whether the ALJ Erred in Weighing the Medical Evidence 16 The plaintiff contends that the ALJ erred by (1) giving “limited weight” to the opinion of Dr. 17 Krikorian and (2) giving greatest weight to the opinion of Dr. Martin and the state non-examining 18 consultants.114 The defendant counters that the ALJ properly evaluated the opinion evidence in 19 assessing the plaintiff’s ability to work.115 The court holds that the ALJ erred in weighing these 20 opinions and remands on this ground. 21 The ALJ is responsible for “resolving conflicts in medical testimony, and for resolving 22 ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). In weighing and evaluating 23 the evidence, the ALJ must consider the entire case record, including each medical opinion in the 24 record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927 (b); see Orn v. Astrue, [25] 495 F.3d 625, 630 (9th Cir. 2007). (“[A] reviewing court must consider the entire record as a [27] 114 Mot. – ECF No. 14 at 19–24. 1 whole and may not affirm simply by isolating a specific quantum of supporting evidence.”) 2 (cleaned up). 3 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 4 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 [5] 178 F.3d 1194 , 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527 ).116 Social Security regulations 6 distinguish among three types of physicians: (1) treating physicians; (2) examining physicians; 7 and (3) non-examining physicians. 20 C.F.R. § 416.927 (c), (e); Lester v. Chater, 81 F.3d 821 , 830 8 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 9 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non10 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 11 Lester, 81 F.3d at 830 ); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 12 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state 13 clear and convincing reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 1198 14 (alteration in original) (cleaned up). By contrast, if the ALJ finds that the opinion of a treating or 15 examining physician is contradicted, a reviewing court will require only that the ALJ provide 16 “specific and legitimate reasons supported by substantial evidence in the record.” Reddick v. 17 Charter, 157 F.3d 715 , 725 (9th Cir. 1998) (cleaned up); see Garrison, 759 F.3d at 1012 (“If a 18 treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 19 only reject it by providing specific and legitimate reasons that are supported by substantial 20 evidence.” (cleaned up). “The opinions of non-treating or non-examining physicians may also 21 serve as substantial evidence when the opinions are consistent with independent clinical findings 22 or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 23 An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation 24 or without explaining why “another medical opinion is more persuasive, or criticiz[es] it with [26] 116 The Social Security Administration promulgated new regulations, including a new § 404.1521, 27 effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the plaintiff’s filing date, July 25, 2016. 1 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 759 F.3d 2 at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the 3 treating physician, include the amount of relevant evidence that supports the opinion and the 4 quality of the explanation provided[,] the consistency of the medical opinion with the record as a 5 whole [, and] the specialty of the physician providing the opinion. . . . “ Orn, 495 F.3d at 631 6 (citing 20 C.F.R. § 404.1527 (d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th 7 Cir. 1989) (an ALJ need not agree with everything contained in the medical opinion and can 8 consider some portions less significant than others). 9 The plaintiff contends that the ALJ erred by giving “less weight” to the opinion of Dr. 10 Krikorian, and, conversely, the greatest weight to the opinions of Dr. Martin and the state non11 examining consultants. 12 On November 24, 2019, the Social Security Administration requested that Dr. Krikorian 13 examine the plaintiff and review his psychiatric records from 2014–2017, including progress notes 14 indicating a poor emotional prognosis.117 She opined that the plaintiff had marked impairments in 15 his ability to complete a normal workday or workweek without interruptions resulting from a 16 psychiatric condition. She also opined that he had moderate to marked impairments in his ability 17 to perform activities within a schedule and maintain regular attendance and adapt to the usual 18 stresses common to a competitive work environment including completing a normal workday or 19 workweek and responding appropriately to changes in a work setting. Lastly, she opined that the 20 plaintiff had absent or minimal limitations in his ability to (1) understand, remember and perform 21 simple or complex written and oral instructions, (2) interact appropriately with others including 22 co-workers, supervisors, and the public, and (3) maintain concentration, attention, and persistence 23 or consistency during a normal workday.118 [27] 117 AR 719. 1 On June 30, 2015, Dr. Martin examined the plaintiff and conducted a psychiatric evaluation on 2 at the request of the Social Security Administration.119 Dr. Martin did not review the entirety of 3 the plaintiff’s psychiatric records. He opined that the plaintiff had moderate limitations in (1) his 4 ability to complete a normal workday or workweek without interruptions resulting from the 5 claimant’s psychiatric condition and (2) his ability to deal with the usual stresses encountered in 6 competitive work environments. He also opined that the plaintiff had mild limitations in his ability 7 to (1) perform detailed and complex tasks versus simple and repetitive tasks, (2) maintain regular 8 attendance in the workplace, and (3) perform work activities without special or additional 9 supervision. Finally, he opined that the plaintiff was not significantly limited in his ability to (1) 10 accept instructions from supervisors, and (2) interact with coworkers and with the public.120 11 The State non-examining psychologists (Dr. Hansmann, Dr. Colsky, and Dr. Haaland) 12 reviewed the plaintiff’s medical record at the reconsideration level.121 They concluded that the 13 plaintiff’s impairments did not impose more than moderate limitations, consistent with Dr. 14 Martin’s findings, and concluded that he was not disabled.122 They opined that the plaintiff had 15 moderate limitations in his ability to (1) respond appropriately to changes in the work setting, (2) 16 complete a normal workday and workweek without interruptions from psychologically based 17 symptoms, (3) maintain attention and concentration for extended periods, and (4) get along with 18 coworkers or peers without distracting them or exhibiting behavioral extremes.123 19 Dr. Krikorian is an examining psychologist, and her opinion is contradicted. Thus, the ALJ 20 was required to give specific and legitimate reasons based on substantial evidence to discount her 21 opinion. Garrison, 759 F.3d at 1012 . The ALJ gave Dr. Krikorian’s opinion less weight because 22 “she evaluated the claimant in November 2019, which is more than a year and a half after the date 23 last insured on March 31, 2018.” Additionally, the ALJ afford Dr. Krikorian’s opinion less weight [24] 25 119 AR 436. [26] 120 AR 441. 121 AR 82–100. [27] 122 AR 98. 1 because her “written report is not wholly consistent with the checkbox form. While the written 2 report notes one marked limitation, the checkbox form does not note any marked limitations.” 3 First, while the ALJ’s explanation of the weight given to Dr. Krikorian’s opinion may be 4 “specific,” it is not “legitimate.” Dr. Krikorian conducted the psychiatric evaluation in November 5 2019 at the Social Security Administration’s request. Thus, assigning her opinion less weight on 6 this fact alone is erroneous. Rather than assess Dr. Krikorian’s ten-page report — that included a 7 mental status examination and a review of the plaintiff’s medical record from 2014 to 2017 — the 8 ALJ offered no explanation and thus provided no legitimate reason for reaching this conclusion. 9 Second, the ALJ’s assertion that Dr. Krikorian’s written report is inconsistent with the 10 checkbox form is not supported by the evidence. Dr. Krikorian filled out a two-page checkbox 11 form provided by the Social Security Administration. The form addresses certain work-related 12 behavior and functioning. The first page asked whether the plaintiff’s ability to understand, 13 remember, and carry out instructions was impaired.124 The second page asked whether the 14 plaintiff’s ability to interact with supervisors, co-workers, and the public was impaired.125 Dr. 15 Krikorian’s responses are consistent with her written report, as she marked “none” or “moderate” 16 impairment to these questions. Unlike the written report, the form did not ask about adaptability to 17 stresses, attendance, or the ability to complete a workday without interruptions from psychiatric 18 conditions.126 Therefore, the ALJ’s contention that Dr. Krikorian’s written report is inconsistent 19 with the checkbox form is not supported by the evidence. 20 In sum, the ALJ erred in weighing the medical evidence, and the court remands on this ground. [21] 22 2. Whether the ALJ Erred by Discounting the Plaintiff’s Testimony 23 The plaintiff contends that the ALJ erred by failing to provide clear reasons for rejecting his 24 testimony about the severity of his symptoms.127 He asserts that his mental impairments disrupt his [26] 124 AR 727. 125 AR 728. [27] 126 AR 726. 1 ability to perform work within a schedule, maintain attendance, and remain on task throughout a 2 work week.128 The defendant counters that the ALJ properly discounted the plaintiff’s testimony 3 with specific reasons that illustrate its inconsistency with the medical record.129 Despite his 4 depression, anxiety, and agoraphobia-related symptoms, the ALJ concluded that the plaintiff can 5 perform unskilled work delineated in his RFC.130 The court finds that the ALJ failed to consider 6 the plaintiff’s agoraphobia and remands on this issue. 7 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d 8 at 1112 . “First, the ALJ must determine whether [the claimant has presented] objective medical 9 evidence of an underlying impairment which could reasonably be expected to produce the pain or 10 other symptoms alleged.” Id. Second, if the claimant produces that evidence, and “there is no 11 evidence of malingering,” the ALJ must provide “specific, clear and convincing reasons for” 12 rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms. Id. (cleaned 13 up). “The ALJ must state specifically which symptom testimony is not credible and what facts in 14 the record lead to that conclusion.” 15 “Factors that an ALJ may consider in weighing a claimant’s credibility include reputation for 16 truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and 17 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 18 treatment.” Orn, 495 F.3d at 636 (cleaned up). “[T]he ALJ must identify what testimony is not 19 credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 20 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300 , 21 at *12 (N.D. Cal. Dec. 20, 2016). 22 In order to have a meaningful appellate review, the ALJ must explain its reasoning and 23 “specifically identify the testimony [from a claimant] she or he finds not to be credible and … 24 explain what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 25 [128] Id. [27] 129 Cross Mot. – ECF 18 at 4–10. 1 1090, 1102–03 (9th Cir. 2014) (“Credibility findings must have support in the record, and 2 hackneyed language seen universally in ALJ decisions adds nothing.”) (cleaned up). “That means 3 [g]eneral findings are insufficient.” Id. at 1102; Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 4 2002) (“the ALJ must make a credibility determination with findings sufficiently specific to 5 permit the Court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony” 6 (citing Bunnel v. Sullivan, 947 F.2d 341 , 345–46 (9th Cir. 1991) (en banc)). Moreover, the court 7 will “review only the reasons provided by the ALJ in the disability determination and may not 8 affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010 . 9 Here, except for the plaintiff’s agoraphobia, the ALJ reasonably concluded that the plaintiff’s 10 statements concerning the intensity, persistence, and limiting effects of his symptoms were not 11 wholly consistent with the record. The ALJ considered inconsistencies in testimony and the 12 plaintiff’s failure to seek treatment or a prescribed course of treatment. He found the following: 13 As for the claimant’s statements about the intensity, persistence, and limiting effects of his symptoms, they are inconsistent because the evidence as a whole [14] indicates that, through the date last insured of March 31, 2018, he was capable of 15 performing a range of light work with [non-exertional] limitations set forth in the residual functional capacity finding above. The limitation to no more than 16 occasional interaction with coworkers or the public is in response to the claimant’s history of panic attacks and agoraphobia.131 [17] 18 First, the ALJ considered inconsistencies between the plaintiff’s testimony and the objective 19 medical record. For example, the plaintiff alleged that his memory deficits interfered with his 20 concentration and memory.132 His Trail Making Test, however, revealed absent or minimal 21 limitations in his ability to remember simple or complex written and oral instructions.133 Dr. 22 Krikorian’s mental-status exam on November 24, 2019, found that his memory is “unimpaired” 23 and he was able to “[recall] 2 out [of] three items immediately and 3 of three words after a 524 minute delay with interference.”134 Similarly, the plaintiff’s treating psychiatrist indicated that he [26] 131 AR 463. 132 AR 228–29; AR 462. [27] 133 AR 724–26. 1 had normal memory.135 While the plaintiff testified that he suffers from fatigue due to sleep apnea, 2 Dr. Palmer’s June 2018 note undercuts his credibility.136 The ALJ noted that the plaintiff had not 3 visited his primary care-physician about a CPAP machine to alleviate his sleep apnea.137 4 Second, the ALJ found that the plaintiff’s own assessments were inconsistent with his 5 allegations. Treatment records related to the plaintiff’s medical improvement establish that he 6 reported improvement on or around October 2012, slight improvement in December 2012, and 7 was using his anti-anxiety medication “sparingly.”138 By May 2013, the plaintiff reported 8 “controlled” symptoms and a treating physician made the same assessment.139 This was a specific, 9 clear, and convincing basis for discounting the plaintiff’s testimony. 10 As discussed above, the ALJ erred by assigning little weight to the medical opinions of Dr. 11 Alpert and Dr. Krikorian, who diagnosed the plaintiff with agoraphobia. Accordingly, the ALJ 12 also erred by failing to provide specific, clear, and convincing reasons to discount plaintiff’s 13 testimony about his agoraphobia. The ALJ aimed to mitigate the plaintiff’s agoraphobia-related 14 symptoms by limiting his interactions with the public and co-workers to one-third of the 15 workday.140 The plaintiff, however, did not testify that public interactions were a contributing 16 factor to his agoraphobia.141 Instead, he testified that his agoraphobia improved since he stopped 17 working because he was unable to maintain a work schedule.142 He also testified that he manages 18 his agoraphobia by keeping a simple routine.143 Thus, the ALJ failed to provide specific reasons to 19 discount plaintiff’s agoraphobia-related testimony. [21] 22 135 AR 465. [23] 136 AR 468. [137] Id. [24] 138 AR 22–23; AR 373. 25 139 AR 22–23; AR 375. [26] 140 AR 463. 141 AR 42; AR 460. [27] 142 AR 484–85. 1 3. Whether the ALJ Erred at Step Three 2 The plaintiff contends that the ALJ erred by determining that he did not meet the Paragraph C 3 criteria for listing 12.06(c) for anxiety.144 The defendant counters that the ALJ properly relied on 4 the lack of supporting evidence that plaintiff failed to provide.145 5 At step three of the five-step framework, “[i]f a claimant has an impairment or combination of 6 impairments that meets or equals a condition in the “Listing of Impairments,” then the claimant is 7 presumed disabled.” Lewis, 236 F.3d 503, 512 (9th Cir. 2001) (citing 20 C.F.R. § 404.1520 (d)). 8 “An ALJ must evaluate the relevant evidence before concluding that a claimant’s impairments do 9 not meet or equal a listed impairment. A boilerplate finding is insufficient to support a conclusion 10 that a claimant’s impairment does not do so.” Id. (citing Marcia v. Sullivan, 900 F.2d 172 , 176 11 (9th Cir. 1990)). “Medical evidence will be found “if the medical findings are at least equal in 12 severity and duration to the listed findings.” Marcia, 900 F.2d at 175–76 (quoting 20 C.F.R. § 13 404.1526). Accordingly, at step three, “the ALJ must explain adequately his evaluation of the 14 alternative tests and the combined effects of the impairments” to determine whether a claimant 15 equals a Listing. Id. at 176 . 16 To meet the paragraph B criteria for listings 12.06(c) (anxiety disorder), a claimant must 17 demonstrate an “[e]xtreme limitation of one, or marked limitation of two, of the following areas of 18 mental functioning: (1) Understand, remember, or apply information; (2) Interact with others; (3) 19 Concentrate, persist, or maintain pace; (4) Adapt or manage oneself.” Id. In order to meet the C 20 criteria for listing 12.06(c), a claimant must have a “mental disorder . . . [that] is serious and 21 persistent. . . .” Put another way, there must be a medically documented history of the disorder 22 over a period of at least two years, and “evidence of both (1) Medical treatment, mental health 23 therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that 24 diminishes the symptoms and signs of your mental disorder; and (2) Marginal adjustment, that is, [27] 144 Mot. – ECF No. 14 at 25. 1 you have a minimal capacity to adapt to changes in your environment or to demands that are not 2 already part of your daily life.” Id. 3 The claimant bears the burden of proving that an impairment or combination of impairments 4 meets or equals the criteria of a listing. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). “An 5 ALJ must evaluate the relevant evidence before concluding that a claimant’s impairments do not 6 meet or equal a listed impairment. Lewis, 236 F.3d at 512 . Generally, a “boilerplate finding is 7 insufficient to support a conclusion that a claimant’s impairment does not meet or equal a listing” 8 unless the ALJ’s discussion of the relevant medical evidence adequately supports the conclusion. 9 Id. at 512013; see also, e.g., Marcia, 900 F.2d at 176 . (noting that ALJ’s unexplained finding at 10 step three was a reversible error). 11 The ALJ concluded that the severity of the plaintiff’s mental impairments did not meet the 12 paragraph B criteria for listing 12.06(c) because they did not cause at least two “marked” 13 limitations or one “extreme” limitation.146 Relying on a functional report in 2012, progress notes 14 from NorCal Urology Medical Group in 2012, progress notes from John Muir Behavior Health 15 Center in 2012, and a consultative mental status exam in 2015, he found the following: 16 In understanding, remembering[,] or applying information, the claimant had a mild limitation. He was able to describe his past psychiatric treatment, substance use, 17 and family medical, social, education, and work history. A mental status examination showed cooperative behavior, spontaneous speech with normal rate 18 and volume goal-directed thought content, no hallucinations, no delusions, no suicidal ideation, full orientation, and intact memory. [19] In interacting with others, the claimant had a moderate limitation. He reported 20 rarely leaving home. However, he reported shopping for food and other items and occasionally going out to eat or to the movies, activities that indicate an ability to [21] interact with others in a commercial setting. He also reported he does not have any 22 problems getting along with family, friends, neighbors or others. With regard to concentrating, persisting or maintaining pace, the claimant had a [23] moderate limitation. He stated that he struggled to follow and maintain a work 24 schedule. However, the claimant has been able to manage his own finances and has no problem following written or spoken instructions. [25] As for adapting and managing oneself, the claimant had experienced a moderate 26 limitation. He reported handling stress and changes in routine badly. However, the [27] claimant told the consultative psychological examiner that he was independent in basic 1 activities of daily living and was able to take public transportation and drive a car.147 2 In addition, the ALJ determined the plaintiff did not meet the C criteria for listing 12.06(c) 3 because the medical evidence “does not demonstrate medical treatment, mental health therapy, 4 psychosocial supports, or a highly structured setting that diminishes the symptoms and signs of the 5 claimant’s mental disorder.”148 6 Here, while the ALJ provided evidence that he relied on for his paragraph B determination, he 7 did not provide more than conclusory remarks concerning the paragraph C criteria. Without more 8 information, the court cannot assess whether there was sufficient evidence underlying the ALJ’s 9 determination that the plaintiff did not meet the paragraph C criteria. 10 Additionally, the defendant’s argument that the ALJ properly relied on a lack of supporting 11 evidence is insufficient. The administrative record provides documentation of the claimant’s 12 severe anxiety disorder over a period of 2 years, and evidence that he received medical treatment 13 (Zoloft), mental health therapy, and lived in a supportive environment with his mother.149 Relying 14 on Dr. Krikorian’s consultative exam, the record documents the plaintiff’s marked impairment in 15 completing a normal workday or workweek without psychiatric interruptions. Thus, the 16 administrative record does not lack supportive evidence.150 17 The court cannot assess whether there was sufficient evidence underlying the ALJ’s 18 determination that the plaintiff did not meet the paragraph C criteria for 12.06(c). Accordingly, the 19 court remands for reconsideration of this issue. [20] 21 4. Remand for Further Proceedings or for Determination of Benefits 22 The court has “discretion to remand a case either for additional evidence and findings or for an 23 award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002); McAllister v. 24 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether to remand for further [26] 147 AR 460–61. [148] Id. [27] 149 AR 270–756. ] proceedings or simply to award benefits is within the discretion of [the] court.”) (citation omitted). 2 || Generally, “‘[i]f additional proceedings can remedy defects in the original administrative 3 || proceeding, a social security case should be remanded.’” Garrison, 759 F.3d at 1019 (quoting 4 || Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original); see also 5 || Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that 6 || further administrative proceedings would serve no useful purpose, it may not remand with a 7 || direction to provide benefits.”); McCartey, 298 F.3d at 1077 (remand for award of benefits is 8 discretionary); McAllister, 888 F.2d at 603 (remand for award of benefits is discretionary); 9 Connett, 340 F.3d at 876 (finding that a reviewing court has “some flexibility” in deciding 10 || whether to remand). 11 Here, remand is appropriate so as to “remedy defects in the original administrative 12 || proceeding.” Garrison, 759 F.3d at 1019 (cleaned up). CONCLUSION 3 15 The court grants the plaintiff's motion, denies the Commissioner’s cross-motion, and remands 16 || for further proceedings consistent with this order. i 17 IT ISSO ORDERED. 18 Dated: December 30, 2021 LAE [19] LAUREL BEELER 20 United States Magistrate Judge