Ferguson v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 K.F., Case No. 20-cv-08629-LB 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 14 KILOLO KIJAKAZI, DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 15 Defendant. Re: ECF Nos. 14, 20 [16] 17 INTRODUCTION 18 The plaintiff K.F. seeks judicial review of a final decision by the Commissioner of the Social 19 Security Administration denying her claim for social-security disability insurance benefits under 20 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. 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 social-security disability insurance benefits on May 21, 2018.3 The 4 Commissioner denied his claim on September 14, 2018, and again on December 20, 2018.4 On 5 January 29, 2019, the plaintiff asked for a hearing before an Administrative Law Judge (ALJ).5 On 6 July 8, 2020, the ALJ held a hearing and heard testimony from a vocational expert (VE) and the 7 plaintiff.6 The ALJ issued an unfavorable decision on July 22, 2020.7 On October 30, 2020, the 8 Appeals Council denied the plaintiff’s request for review, and the ALJ’s decision became the final 9 administrative decision.8 The plaintiff filed this action on December 7, 2020, and the parties each 10 moved for summary judgment.9 All parties consented to magistrate-judge jurisdiction.10 [11] 12 2. Medical Records 13 The plaintiff contended that she was disabled because of the following conditions: anxiety, 14 post-traumatic stress disorder, panic attacks, agoraphobia, depression, attention deficit 15 hyperactivity disorder (ADHD), scoliosis, back pain, eczema, and psoriasis.11 Records from the 16 following individuals were submitted at the administrative hearing: (1) Paula Moreno, F.N.P., a 17 treating nurse practitioner;12 (2) Shannon Wozniak, P.N.P., a treating psychiatric nurse [21] 3 AR 236–37. 22 4 AR 100; AR 109. [23] 5 AR 115. 6 AR 32–53. [24] 7 AR 15–25. 25 8 AR 1–3. [26] 9 Compl. – ECF No. 1; Mot. – ECF No. 14; Cross-Mot. – ECF No. 20. 10 Consents – ECF Nos. 8, 9. [27] 11 AR 268. 1 practitioner;13 (3) Soheila Benrazavi, M.D., an examining physician;14 (4) Melody Samuelson, 2 Psy.D., an examining psychologist;15 and (5) A. Dipsea, M.D., G. Williams, M.D., Heather 3 Abrahimi, Psy.D., and Lon Olsen, Ph.D., state non-examining medical consultants.16 Because the 4 plaintiff challenges the ALJ’s consideration of the medical records, this order summarizes the 5 disputed opinions fully. 6 2.1. Paula Moreno, F.N.P. — Treating Nurse Practitioner 7 NP Moreno was the plaintiff’s primary-care provider and saw her several times between 8 January 21, 2020 and May 21, 2020. 9 On January 21, 2020, the plaintiff complained of bilateral numbness and tingling in the arms 10 for over a year, chronic rash, and joint pain. NP Moreno noted that a 2017 x-ray revealed 11 anterolisthesis and disc space narrowing and that the plaintiff had painful range of motion in the 12 bilateral shoulders and elbows. NP Moreno diagnosed the plaintiff with arthralgia, anesthesia of 13 skin, anterolisthesis, and degenerative cervical disc disease, and referred the plaintiff to orthopedic 14 surgery and rheumatology.17 15 On February 18, 2020, the plaintiff complained that, in addition to her previous symptoms, the 16 arm numbness and tingling sensation caused constant sleep disturbances, she had constant itchiness 17 and dry skin in her bilateral hands, and she had anxiety, depression and ADD. The plaintiff 18 appeared teary-eyed and anxious. A January 2020 cervical x-ray revealed degenerative arthritis with 19 large osteophytes. NP Moreno found patches of skin on the hands that were red, cracked and rough, 20 and limited range of motion in the lower back. She diagnosed the plaintiff with anesthesia of skin, 21 degenerative cervical disc disease, idiopathic scoliosis and kyphoscoliosis, and lumbar disc 22 herniation with radiculopathy.18 [24] 13 AR 471–76; AR 529; AR 531; AR 536; AR 539; AR 546; AR 551; AR 556; AR 563; AR 573; AR 584; AR 591; AR 669; AR 680; AR 685; AR 695; AR 708; AR 718; AR 723; AR 731; AR 733. 25 14 AR 521–26. [26] 15 AR 513–20. 16 AR 54–71; AR 73–88. [27] 17 AR 656–58; AR 686–87. 1 NP Moreno examined the plaintiff again on March 12, 2020, and diagnosed her with lichen 2 sclerosis of female genitalia, psoriasis, eczema, and chronic pain.19 The plaintiff again appeared 3 teary-eyed and anxious. She reported that her sleep disturbances resolved with three Advil at 4 night. Otherwise, her complaints were the same as before. NP Moreno referred the plaintiff to 5 gynecology and rheumatology.20 6 Also on March 12, 2020, NP Moreno completed a residual functional capacity (RFC) 7 questionnaire. She opined that the plaintiff can sit for one hour and thirty minutes at a time and 8 less than two hours total in a workday, and stand for fifteen minutes at a time and about four hours 9 in total a workday. She also opined that the plaintiff must walk every thirty minutes during a 10 workday for ten minutes each time, needs to take unscheduled breaks daily (and then may not be 11 able to return to work), and can lift and carry ten pounds frequently and twenty pounds 12 occasionally. The plaintiff can occasionally twist, stoop, and climb ladders, can rarely crouch or 13 squat, and has significant limitations with reaching, handling and fingering (specifically, she can 14 reach with her right arm for less than ten percent of a workday and her left arm for eleven percent 15 of a workday, can never grasp objects with her right hand or use the fingers of that hand for fine 16 manipulations, and can grasp objects with her left hand and use that hand’s fingers for fine 17 manipulations for less than one percent of a workday). The plaintiff has the further limitations of 18 anxiety, depression, neck pain with a tingling sensation to the bilateral arms and hands, itchiness 19 in the arms, and eczema in the bilateral hands. Finally, the plaintiff is likely to be absent from 20 work more than four days per month.21 21 On May 7, 2020, NP Moreno noted that the plaintiff last worked in 2015 as a nurse and had 22 recently done odd jobs (that stopped due to COVID-19) such as driving a child to and from school 23 and helping an old couple for three hours at a time. The plaintiff was able to perform certain tasks 24 (such as gardening) not requiring interaction with others, due to her ADD, social anxiety, [26] 19 AR 351. [27] 20 AR 709–10. 1 depression, chronic pain, sleep problems, and eczema. NP Moreno diagnosed her with anesthesia 2 of skin, degenerative cervical disc disease, and eczema.22 3 On May 21, 2020, the plaintiff was soon going to start a gardening job for a few hours per 4 week. She was diagnosed with bilateral neck pain, paresthesia of skin, major depressive disorder, 5 eczema, and lumbar disc herniation with radiculopathy.23 6 2.2. Shannon Wozniak, P.N.P. — Treating Psychiatric Nurse Practitioner 7 NP Wozniak treated the plaintiff for her mental-health problems from June 25, 2018 to June 3, 8 2020, and saw her many times. She diagnosed the plaintiff with recurrent major depressive 9 disorder and ADHD. 10 On June 25, 2018, NP Wozniak completed a mental disorder questionnaire. She said the 11 plaintiff has “recurrent episodes of depression, generalized anxiety symptoms and chronic ADHD 12 which all interfere with [her] ability to function.” The plaintiff’s symptoms have existed since 13 2015, “following multiple life traumas.” She has depressive symptoms of hopelessness and 14 helplessness, low energy, and low motivation, chronic anxiety symptoms with panic episodes, and 15 she exhibited anxiety and tearfulness during appointments. She had been prescribed Lexapro, 16 Abilify and Adderall, and was diagnosed with recurrent major depressive disorder, generalized 17 anxiety disorder, and ADHD. She “has impairments in concentration, attention, focus, [and] task 18 completion,” has difficulty attending to daily activities, is socially isolative, and has poor stress 19 tolerance.24 20 On August 15, 2018, the plaintiff complained that her emotional well-being was negatively 21 affected by increased back pain. She had been helping a family with their child transportation and 22 plant watering.25 On September 12, 2018, the plaintiff “expressed feeling hopelessness for a future 23 without depression.” NP Wozniak encouraged her to continue exploring her career.26 On October [24] 25 22 AR 725. [26] 23 AR 728–29. 24 AR 471–76. [27] 25 AR 591. 1 10, 2018, the plaintiff had improved mood, increased motivation, and “goal directed behavior 2 toward finding new employment.” She had recently started a dog-walking job five days per week. 3 She had also “looked into renewing her nursing license and [was] considering pursuing jobs in 4 administration that she might be able to do beyond direct patient care.”27 In November and 5 December 2018, the plaintiff continued to mention her dog-walking job, NP Wozniak stated the 6 plaintiff was “strong in her recovery,” and a thumb injury from possible guitar overuse was 7 mentioned.28 From January through March 2019, the notable updates were an emotional visit 8 home by the plaintiff, a two-week alcohol-use relapse, and a new prescription for Strattera.29 9 On June 26, 2019, NP Wozniak said that the plaintiff had tolerated an increased dosage of 10 Strattera, which was helping her motivation and mood.30 Three days later, the plaintiff had 11 continued positive improvement in mood and motivation and wanted to further increase her 12 dosage of Strattera.31 13 On October 16, 2019, NP Wozniak described the plaintiff as stable and “considering 14 reentering the workforce as a wound care nurse,” about which she was “hopeful and optimistic.” 15 She was seeing progress on her social anxiety as a result of therapy.32 From December 2019 16 through February 2020, the plaintiff described progress in renovating her studio (including 17 refinishing her bathroom and fishing her loft) and small jobs she had taken on. She was stable on 18 medication.33 In March and April 2020, the plaintiff reported a benefit to her social anxiety from 19 therapy and medication. She was stable on medications and “working toward goals of improved 20 employment prospects.” Further, she was coping well despite the COVID-19 pandemic, [23] 27 AR 573. [24] 28 AR 556; AR 563. 25 29 AR 536; AR 539; AR 546; AR 551. [26] 30 AR 529. 31 AR 531. [27] 32 AR 669. 1 “continue[d] to work small jobs outside in the garden and other gig jobs,” and “remain[ed] 2 resilient under stress.”34 3 Subsequently, on May 27, 2020, the plaintiff reported increased anxiety symptoms and 4 neuropathic pain. Cymbalta was prescribed to treat the anxiety symptoms.35 Finally, on June 3, 5 2020, the plaintiff and NP Wozniak completed a therapeutic termination session due to the latter’s 6 departure from her clinic. NP Wozniak reported that the plaintiff had “responded well to treatment 7 with Cymbalta” and her depression and anxiety were stable. Diagnoses were unchanged.36 [8] 9 3. Non-Medical Evidence 10 The plaintiff submitted a third-party function report from her friend, Rebecca Auster, in July 11 2018.37 Ms. Auster said that the plaintiff has social anxiety and “has a hard time meeting new 12 people or being in large groups.” She also doesn’t sleep well due to skin itching and leg issues.38 13 Ms. Auster reported that the plaintiff’s daily activities consist of walking her dog a lot, doing 14 errands, and fixing up her place — she is “capable at all household chores and actually very 15 handy.” She goes outside daily on her own, can shop in stores in a normal manner, and has no 16 problems handling money. As for hobbies, she enjoys singing, walking her dog, going on hikes, 17 and sewing — but due to her health problems, “[s]he pursues her hobbies and interests much less 18 if at all.” As for social activities, she does things with others one or two times per week, at places 19 like the dog park and the grocery store.39 20 Ms. Auster also stated that due to the plaintiff’s social anxiety, “the modern average workplace 21 and responsibilities . . . would be too much for her.” Compared to her previous “lively” and 22 “vivacious” self, she has “become markedly more anxious and distracted” and “prone to tears.” [24] 34 AR 708; AR 718; AR 723. 25 35 AR 731. [26] 36 AR 733. 37 AR 373–81. [27] 38 AR 374–75. 1 Her disabilities also affect her ability to lift, walk, and concentrate, though she can walk for 2 “miles” (albeit with pain) before needing to rest. She is “ok” at following written and spoken 3 instructions. As for handling stress, “[s]he handles what she needs to” but “it’s usually hard for her 4 to manage her emotions.”40 [5] 6 4. Administrative Proceedings 7 4.1. Disability-Determination Explanations 8 During the administrative process, non-examining doctors generated two disability9 determination explanations, one related to the plaintiff’s initial application and one at the 10 reconsideration level. 11 At the initial level, the state doctors found the following impairments to be severe: (1) anxiety 12 and obsessive-compulsive disorders, (2) depressive, bipolar and related disorders, and (3) trauma13 and stressor-related disorders.41 The doctors found the plaintiff to be not disabled despite these 14 impairments.42 15 On reconsideration, the doctors added a fourth severe impairment, attention 16 deficit/hyperactivity disorder.43 They again found the plaintiff to be not disabled.44 17 4.2. Administrative Hearing 18 The ALJ held a hearing on July 8, 2020. It was conducted telephonically due to the COVID-19 19 pandemic.45 The plaintiff and VE Stephen Schmidt testified.46 [23] 40 AR 373–81. [24] 41 AR 63. 25 42 AR 70. [26] 43 AR 80. 44 AR 87. [27] 45 AR 15. 1 4.2.1. Plaintiff’s Testimony 2 The ALJ and the plaintiff’s attorney questioned the plaintiff.47 She testified that she was born 3 in 1967.48 She completed a bachelor’s degree and later worked as a registered nurse, in med spas 4 and home healthcare.49 She last worked at PowerMD in 2015, can no longer work as a registered 5 nurse, and can only work “[i]n a very limited fashion” because of physical issues and anxiety.50 6 Her physical issues include eczema on her hands so that she has bleeding and “can barely wash 7 [her] hands or grasp anything,” itching on her arms causing bleeding, numbness and tingling in the 8 arms causing sleep problems and causing her arms and hands to fall asleep when holding them up, 9 and “other female issues” causing pain when wearing underwear.51 10 The plaintiff also testified that she has done odds jobs such as walking dogs, driving children 11 to and from and school, and cleaning the apartment of an old couple every other week.52 She has 12 done these jobs because she is “trying to survive.”53 While doing these jobs, she can’t drive for 13 long periods because of lower back pain while sitting, and she sometimes attaches the dog leash 14 around herself so that she doesn’t have to hold it with her hands.54 She had also been helping a 15 woman once a week with gardening, but the work was “really hard” and she was not able to do it 16 for eight hours per day.55 All of these odd jobs ended due to the COVID-19 pandemic.56 17 The plaintiff also described renovating her living space. Her cousin helped to add a room, and 18 she also refinished the bathroom and finished a loft. She was only able to do these things by doing 19 the work over a very long time. She used her hands (with bandages on) to paint, hang up a shelf, [21] 47 AR 38–48. 22 48 AR 38. [23] 49 AR 38–40. 50 AR 40–41. [24] 51 AR 41–44, 48. 25 52 AR 44, 47. [26] 53 AR 44. 54 AR 44–45. [27] 55 AR 47. 1 put plants up, clean, move stuff around, and draw designs. She did not do any “heavy labor” — 2 her cousin and others helped with that.57 3 4.2.2. VE’s Testimony 4 VE Stephen Schmidt testified at the July 8, 2020 hearing.58 The ALJ asked the VE to classify 5 the plaintiff’s prior work according to the Dictionary of Occupational Titles, and the VE responded 6 that the plaintiff worked as a nurse, office (light, SVP 7 for one of the plaintiff’s past positions, 7 and medium, SVP 7 for another).59 8 The ALJ posed the first hypothetical to the VE: a person of the claimant’s age, education, and 9 work experience who “can perform medium work, except: She can perform simple, routine, 10 repetitive tasks; she can have occasional contact with supervisors, coworkers, and the general 11 public; and she can adapt to typical stress and simple, . . . gradual changes in work settings.” The 12 VE testified that the hypothetical person could not perform the plaintiff’s past work, but could 13 perform the following jobs: (1) laborer, stores; (2) cleaner; and (3) hand packer.60 14 The ALJ posed the second hypothetical to the VE. In addition to the conditions of the previous 15 hypothetical, the person can occasionally reach overhead and can frequently handle and finger 16 with the bilateral upper extremities. The VE responded that the hypothetical person could perform 17 the following jobs: (1) laborer, stores; (2) cleaner, industrial; and (3) launderer.61 18 The ALJ posed a third hypothetical to the VE: a person who can perform light work, “except: 19 She can sit for two hours in an eight-hour day; stand and walk for . . . four hours in an eight-hour 20 day; occasionally twist and stoop; rarely crouch and squat; occasionally climb ladders; never use 21 her right hand or fingers; use her right arm less than 10 percent of the workday; use her left hand [24] 25 57 AR 45–47. [26] 58 AR 49–52. 59 AR 49–50. [27] 60 AR 50. 1 and fingers less than one percent of the workday; use her left arm 11 percent of the workday; and 2 [is] absent for four days per month.” The VE testified that no jobs are available to such a person.62 3 4.3. ALJ Findings 4 The ALJ analyzed the five-step process to determine whether the plaintiff was disabled and 5 determined that she was not.63 6 At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity 7 since the alleged disability-onset date of April 1, 2016.64 8 At step two, the ALJ found that the plaintiff had the following severe impairments: (1) 9 degenerative disc disease; (2) thoracolumbar scoliosis; (3) lichen sclerosis of female genitalia; (4) 10 psoriasis; (5) eczema; (6) major depressive disorder; (7) attention deficit hyperactivity disorder; 11 and (8) alcohol dependence.65 12 At step three, the ALJ found that the plaintiff did not have an impairment or combination of 13 impairments that met or medically equaled the severity of a listed impairment.66 14 Before reaching step four, the ALJ determined that the plaintiff had RFC “to perform medium 15 work . . . except [that] she can occasional[ly] reach overhead with the bilateral upper extremities,” 16 “can frequently handle and finger with the bilateral upper extremities,” “can perform simple 17 routine repetitive tasks,” “can have occasional contact with supervisors, coworkers, and the 18 general public,” and “can adapt to typical stress and simple, gradual changes in the work 19 setting.”67 20 At step four, the ALJ found that the plaintiff was unable to perform any past relevant work.68 [23] 62 AR 51–52. [24] 63 AR 15–25. 25 64 AR 18. [26] 65 Id. 66 AR 18–19. [27] 67 AR 19–24. 1 At step five, the ALJ found that the following jobs were available to the plaintiff: (1) laborer, 2 stores; (2) cleaner, industrial; and (3) launderer.69 3 The ALJ found that the plaintiff was “capable of making a successful adjustment to other work 4 that existed in significant numbers in the national economy” and therefore concluded that the 5 plaintiff was “not disabled.”70 6 STANDARD OF REVIEW 7 Under 42 U.S.C. § 405 (g), district courts have jurisdiction to review any final decision of 8 the Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 9 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 10 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 11 586, 591 (9th Cir. 2009) (cleaned up); 42 U.S.C. § 405 (g). “Substantial evidence means more than 12 a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 13 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 14 Cir. 1995). The reviewing court should uphold “such inferences and conclusions as the 15 [Commissioner] may reasonably draw from the evidence.” Mark v. Celebrezze, 348 F.2d 289 , 293 16 (9th Cir. 1965). If the evidence in the administrative record supports the ALJ’s decision and a 17 different outcome, the court must defer to the ALJ’s decision and may not substitute its own 18 decision. Tackett v. Apfel, 180 F.3d 1094 , 1097–98 (9th Cir. 1999). “Finally, [a court] may not 19 reverse an ALJ’s decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 20 1104, 1111 (9th Cir. 2012). 21 GOVERNING LAW 22 A claimant is considered disabled if (1) he suffers from a “medically determinable physical or 23 mental impairment which can be expected to result in death or which has lasted or can be expected 24 to last for a continuous period of not less than twelve months,” and (2) the “impairment or 25 impairments are of such severity that he is not only unable to do his previous work but cannot, [27] 69 AR 24–25. 1 considering his age, education, and work experience, engage in any other kind of substantial 2 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A) & (B). The five3 step analysis for determining whether a claimant is disabled within the meaning of the Social 4 Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520 ). 5 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 [6] substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the 7 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 [8] claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 9 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments [10] described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the 11 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 12 C.F.R. § 404.1520 (a)(4)(iii). 13 Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If 14 the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520 (a)(4)(iv). [15] Step Five. Considering the claimant’s RFC, age, education, and work experience, is the 16 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, 17 the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs [18] in significant numbers in the national economy: (1) by the testimony of a vocational expert or 19 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. 20 For steps one through four, the burden of proof is on the claimant. At step five, the burden shifts to 21 the Commissioner. Gonzales v. Sec’y of Health & Hum. Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). [22] 23 ANALYSIS 24 The plaintiff contends that the ALJ erred by (1) ignoring her anxiety and obsessive-compulsive 25 disorders at step two, (2) failing to assess the credibility of Ms. Auster’s third-party testimony, (3) 26 improperly considering the medical evidence, (4) rejecting the plaintiff’s symptom testimony, and 27 (5) improperly assessing the plaintiff’s RFC. 1 For the reasons below, the court grants the plaintiff’s motion for summary judgment, denies 2 the Commissioner’s cross-motion for summary judgment, and remands for further proceedings 3 consistent with this order. [4] 1. Whether the ALJ Erred by Failing to Consider Whether the Plaintiff’s Anxiety and [5] Obsessive-Compulsive Disorders Were Severe Impairments at Step Two 6 The plaintiff argues that the ALJ erred by failing to mention or assess her anxiety disorder and 7 obsessive-compulsive disorder diagnoses at step two.71 The Commissioner responds that any such 8 error was harmless.72 The court agrees with the plaintiff. 9 At step two of the five-step sequential inquiry, the ALJ determines whether the claimant has a 10 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273 , 11 1290 (9th Cir. 1996). The ALJ must consider the record as a whole, including evidence that both 12 supports and detracts from his final decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998). An impairment is not severe if it does not significantly limit the claimant’s mental or 14 physical abilities to do basic work activities. 20 C.F.R. § 404.1522 (a). Basic work activities are 15 “abilities and aptitudes necessary to do most jobs,” including, for example, “walking, standing, 16 sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Id. § 404.1522(b). To determine 17 the severity of a mental impairment specifically, the ALJ must consider four broad functional 18 areas: (1) “[u]nderstand, remember, or apply information;” (2) “interact with others;” (3) 19 “concentrate, persist, or maintain pace;” and (4) “adapt or manage oneself.” 20 C.F.R. § 20 404.1520a(c)(3). 21 “[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.” 22 Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137 , 153–54 (1987)). Thus, “[a]n 23 impairment or combination of impairments can be found ‘not severe’ only if the evidence 24 establishes a slight abnormality that has no more than a minimal effect on an individual[’]s ability [27] 71 Mot. – ECF No. 14 at 13–14. 1 to work.” Id. (internal quotation marks omitted) (first citing SSR 85-28; then citing Yuckert v. 2 Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). 3 Here, the ALJ did not mention the plaintiff’s anxiety disorder and obsessive-compulsive 4 disorder diagnoses at step two.73 This failure to explain why those disorders were not severe was 5 error. Lockwood v. Colvin, No. 12-cv-00496-NJV, 2013 WL 1964923 , at *7 (N.D. Cal. May 10, 6 2013). Furthermore, the error was not harmless, because the ALJ also failed to meaningfully 7 assess those two disorder diagnoses at any subsequent step.74 Lewis v. Astrue, 498 F.3d 909 , 911 8 (9th Cir. 2007). Therefore, the court remands on this ground. [9] 2. Whether the ALJ Erred by Failing to Assess the Credibility of Third-Party Testimony [10] The plaintiff next argues that the ALJ erred by failing to assess the credibility of her friend, [11] Rebecca Auster.75 The Commissioner responds only that any such error was harmless.76 The court [12] remands on this ground. [13] The ALJ must consider “other source” testimony and evidence from a layperson. Ghanim v. [14] Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111 ; Bruce v. Astrue, 557 F.3d 15 1113, 1115 (9th Cir. 2009) (“In determining whether a claimant is disabled, an ALJ must consider [16] lay witness testimony concerning a claimant's ability to work.”). “Descriptions by friends and [17] family members in a position to observe a claimant’s symptoms and daily activities have routinely [18] been treated as competent evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). [19] This kind of lay witness testimony “is competent evidence and therefore cannot be disregarded [20] without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (cleaned up). [21] Moreover, if an ALJ decides to disregard the testimony of a lay witness, the ALJ must provide [22] “specific” reasons that are “germane to that witness.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. [23] 2007) (internal citations omitted). The Ninth Circuit has not “required the ALJ to discuss every [25] 73 See AR 18. 26 74 See, e.g., AR 21 (“Turning to her psychological impairments, the claimant has been diagnosed with major depressive disorder and attention deficit hyperactivity disorder.”). [27] 75 Mot. – ECF No. 14 at 14–15. 1 witness’s testimony on an individualized, witness-by-witness basis” — the ALJ may “point to” 2 reasons already stated with respect to the testimony of one witness to reject similar testimony by a 3 second witness. Molina, 674 F.3d at 1114 . 4 The Commissioner points out recent district court cases finding that under the new social 5 security regulations, there is no articulation requirement for ALJ decisions when rejecting lay 6 witness testimony.77 But because “[t]he Commissioner has briefed this case under the assumption 7 that the Ninth Circuit’s germane reasons case law continues to apply,” the court assumes that case 8 law does still apply.78 9 Ms. Auster’s third-party function report contained lay witness testimony about the plaintiff’s 10 social anxiety. The Commissioner argues that the ALJ’s error in failing to fully address that 11 testimony was harmless because the ALJ properly rejected the plaintiff’s equivalent social-anxiety 12 testimony. See Molina, 674 F.3d at 1122 (because “the same evidence that the ALJ referred to in 13 discrediting [the plaintiff’s] claims also discredit[ed] [the lay witness’s] claims,” the ALJ’s error in 14 ignoring the lay witness’s testimony was harmless). As explained below, the ALJ did not properly 15 reject the plaintiff’s own social anxiety-related testimony. Because the court remands on that 16 ground, the court remands on this ground too. [17] 18 3. Whether the ALJ Erred in Considering the Medical Evidence 19 The plaintiff contends that the ALJ erred in considering the medical evidence by (1) failing to 20 assess the persuasiveness NP Wozniak’s opinion, and (2) rejecting NP Moreno’s opinion.79 The 21 Commissioner counters that the ALJ properly evaluated the opinion evidence in assessing the 22 plaintiff’s ability to work.80 The ALJ erred in considering these opinions and remand is warranted 23 on this ground. [26] 77 Cross-Mot. – ECF No. 20 at 22 n.14 (collecting cases). [78] Id. [27] 79 Mot. – ECF No. 14 at 16–21. 1 The ALJ is responsible for “resolving conflicts in medical testimony, and for resolving 2 ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). In weighing and evaluating 3 the evidence, the ALJ must consider the entire case record, including each medical opinion in the 4 record, together with the rest of the relevant evidence. 20 C.F.R. § 416 .920b; see Orn v. Astrue, [5] 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing court must consider the entire record as a 6 whole and may not affirm simply by isolating a specific quantum of supporting evidence.”) 7 (cleaned up). 8 The Social Security Administration promulgated new regulations governing an ALJ’s 9 consideration of medical opinions, effective March 27, 2017.81 The new framework “eliminate[s] 10 the physician hierarchy, deference to specific medical opinions, and assigning weight to a medical 11 opinion,” but the ALJ must still articulate how he or she considered every medical opinion and 12 how persuasive he or she finds each. V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 13 WL 1505716 , at *14 (N.D. Cal. Mar. 30, 2020) (cleaned up); 20 C.F.R. § 416 .920c(a)–(b). 14 Persuasiveness is now evaluated based on five factors: “1) supportability; 2) consistency; 3) 15 relationship with the claimant; 4) specialization; and 5) ‘other factors.’” V.W., 2020 WL 1505716 , 16 at *13 (citing 20 C.F.R. § 416 .920c(c)). 17 Supportability and consistency are the two most important factors, and the ALJ is required to 18 specifically address them. Id.; 20 C.F.R. § 416 .920c(b)(2). Regarding supportability, “[t]he more 19 relevant the objective medical evidence and supporting explanations presented by a medical 20 source are to support his or her medical opinion(s) or prior administrative medical finding(s), the 21 more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 22 C.F.R. § 416 .920c(c)(1). Regarding consistency, “[t]he more consistent a medical opinion(s) or 23 prior administrative medical finding(s) is with the evidence from other medical sources and 24 nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior 25 administrative medical finding(s) will be.” Id. § 416.920c(c)(2). [27] 1 Unlike with supportability and consistency, the ALJ is not normally required to explain how 2 he or she considered the other factors. V.W., 2020 WL 1505716 , at *14; 20 C.F.R. § 3 416.920c(b)(2). But the ALJ is required to do so where “two or more medical opinions or prior 4 administrative medical findings about the same issue are both equally well-supported . . . and 5 consistent with the record . . . but are not exactly the same.” 20 C.F.R. § 416 .920c(b)(3). 6 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 7 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 8 F.3d 1194, 1198 (9th Cir. 2008). The parties dispute whether these standards control under the 9 new regulations.82 The court does not reach that issue because the motions can be resolved without 10 reference to the Ninth Circuit’s standards. 11 Here, the plaintiff first argues that the ALJ “did not make a finding as [to] the persuasiveness 12 of NP Wozniak’s opinions and did not evaluate their consistency or supportability.”83 The 13 Commissioner counters that such error was harmless because “the ALJ evaluated similar, identical 14 opinions . . . and adequately accounted for them in the RFC.”84 15 The ALJ did not evaluate the persuasiveness of NP Wozniak’s opinions. This was error. [16] 20 C.F.R. § 416 .920c(b); Marsh v. Colvin, 792 F.3d 1170 , 1172–73 (9th Cir. 2015) (“[A]n ALJ 17 cannot in its decision totally ignore a treating doctor and his or her notes, without even mentioning 18 them.”). And the error was not harmless because it is not “evident that the ALJ rejected [NP 19 Wozniak’s] . . . limitation[s] for the same reasons” the ALJ rejected another medical source’s 20 limitations. Lenhart v. Astrue, 252 F. App’x 787, 789 (9th Cir. 2007); see also Elmore v. Colvin, [21] 617 F. App’x 755 , 757–58 (9th Cir. 2015). Thus, remand is warranted as to NP Wozniak’s 22 opinions. 23 The plaintiff also argues that the ALJ improperly rejected the opinion of NP Moreno.85 The 24 ALJ rejected that opinion as follows: [26] 82 Mot. – ECF No. 14 at 16, 19; Cross-Mot. – ECF No. 20 at 15–21; Reply – ECF No. 21 at 4–6. 83 Mot. – ECF No. 14 at 17. [27] 84 Cross-Mot. – ECF No. 20 at 25–27. This opinion is not persuasive and is inconsistent with the record. The opinion is too [1] extreme and is inconsistent with her ability to do medium level work, as she is able 2 to walk dogs, garden, drive, and remodel her living space. Notably, these activities require the use of the claimant’s hands, which contradicts Nurse Moreno’s statement 3 that the claimant’s upper extremities were essentially unusable.86 4 This reasoning addresses only consistency, not supportability. That is, it addresses whether NP 5 Moreno’s opinion is consistent with the record as a whole, and not whether the opinion is 6 supported by the objective medical evidence and NP Moreno’s supporting explanations. It was 7 error for the ALJ to not assess supportability. 20 C.F.R. § 416 .920c(b)(2). Therefore, remand is 8 also warranted as to NP Moreno’s opinion. [9] 10 4. Whether the ALJ Erred by Discounting the Plaintiff’s Testimony 11 The plaintiff also contends that the ALJ erred by failing to provide clear and convincing 12 reasons for rejecting her testimony about the severity of her symptoms.87 The Commissioner 13 counters that the ALJ properly discounted the plaintiff’s testimony with specific reasons that 14 illustrate its inconsistency with the record.88 The court agrees with the plaintiff. 15 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d 16 at 1112 . “First, the ALJ must determine whether [the claimant has presented] objective medical 17 evidence of an underlying impairment which could reasonably be expected to produce the pain or 18 other symptoms alleged.” Id.; see also 20 C.F.R. § 404.1529 (a). Second, if the claimant produces 19 that evidence, and “there is no evidence of malingering,” the ALJ must provide “specific, clear 20 and convincing reasons for” rejecting the claimant’s testimony regarding the severity of the 21 claimant’s symptoms. Molina, 674 F.3d at 1112 (cleaned up). “The ALJ must state specifically 22 which symptom testimony is not credible and what facts in the record lead to that conclusion.” 23 Smolen, 80 F.3d at 1284 . [26] 86 AR 23. [27] 87 Mot. – ECF 14 at 21–25. 1 “Factors that an ALJ may consider in weighing a claimant’s credibility include reputation for 2 truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and 3 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 4 treatment.” Orn, 495 F.3d at 636 (cleaned up). “[T]he ALJ must identify what testimony is not 5 credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 6 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300 , 7 at *12 (N.D. Cal. Dec. 20, 2016). 8 In order to have a meaningful appellate review, the ALJ must explain its reasoning and 9 “specifically identify the testimony [from a claimant] she or he finds not to be credible and . . . 10 explain what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec. Admin., 775 11 F.3d 1090 , 1102–03 (9th Cir. 2014) (“Credibility findings must have support in the record, and 12 hackneyed language seen universally in ALJ decisions adds nothing.”) (cleaned up). “That means 13 [g]eneral findings are insufficient.” Id. at 1102 ; Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 14 2002) (“[T]he ALJ must make a credibility determination with findings sufficiently specific to 15 permit the Court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.”). 16 Moreover, the court will “review only the reasons provided by the ALJ in the disability 17 determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 18 F.3d at 1010. 19 First, the ALJ considered inconsistencies between the plaintiff’s testimony and the objective 20 medical record. For example, the plaintiff complained of numbness and tingling in the bilateral 21 arms, painful range of motion in her shoulders and elbows, and limited range of motion in her 22 lower back. The ALJ pointed to other evidence showing “no swelling, no tenderness to palpation, 23 no deformity, no redness, normal strength, intact sensation, normal gait, normal tone, and normal 24 reflexes.” The ALJ also stated that “numbness and tingling in [the] arms resolved with three 25 Advils at night.”89 But the ALJ did not explain how the evidence undermines the testimony, which 26 was error. For example, the fact that the plaintiff’s sleep problems resulting from arm numbness [27] 1 and tingling resolved with three Advils at night does not mean the arm numbness and tingling had 2 been resolved during the workday. 3 Second, the ALJ discounted the plaintiff’s testimony based on her reported daily living 4 activities, concluding that, “despite her impairments, the claimant can do some medium level 5 work.”90 “[I]nconsistencies . . . between [a claimant’s] testimony and [her] conduct [or] daily 6 activities” is a legitimate factor “in weighing a claimant’s credibility.” Orn, 495 F.3d at 636 ; 7 Molina, 674 F.3d at 1112–13 (daily living activities “may be grounds for discrediting the claimant’s 8 testimony to the extent that they contradict claims of a totally debilitating impairment”). Daily 9 activities can only be relied upon by the ALJ, though, “if a claimant is able to spend a substantial 10 part of his day engaged in pursuits involving the performance of physical functions that are 11 transferable to a work setting.” Orn, 495 F.3d at 639 . “The ALJ must make specific findings 12 relating to the daily activities and their transferability.” Id. (cleaned up). In addition, the Ninth 13 Circuit has “repeatedly warned that ALJs must be especially cautious in concluding that daily 14 activities are inconsistent” with eligibility for disability benefits; “disability claimants should not be 15 penalized for attempting to lead normal lives in the face of their limitations.” Garrison, 759 F.3d at 16 1016; see also Smolen, 80 F.3d at 1284 n.7 (“The Social Security Act does not require that 17 claimants be utterly incapacitated to be eligible for benefits . . . .”). 18 Here, the ALJ found that the odd jobs and home-renovation work performed by the plaintiff 19 contradicted the claimed severity of her impairments. Specifically, the claimed hand problems 20 were contradicted by “her ability to do tasks to renovate her living space,” and the claimed social 21 anxiety problems were contradicted by “her ability to provide services to children and the elderly, 22 as well as meet friends at the dog park.”91 The ALJ erred by not making specific findings that 23 these activities are transferable to a work setting and that the plaintiff can spend a substantial part 24 of her day engaged in similar activities. For example, the plaintiff testified that she completed her [27] 90 AR 21–22. ] home-renovation work over a long period of time, not that she spent a substantial part of her days 2 || on that work. 3 In sum, the ALJ’s errors in discounting the plaintiffs testimony warrant remand. [4] 5 5. Whether the ALJ Erred by Improperly Assessing the Plaintiff’s RFC ‘ The plaintiff contends that the ALJ improperly assessed her RFC because he ignored certain 4 medical diagnoses and opinions.”” Because the court remands for reconsideration of the medical- opinion evidence, and because the RFC was based partly on the medical record, the court remands 9 on this ground too. 10 6. Whether the Court Should Remand for Further Proceedings or Determination of Benefits 1] D The court has “discretion to remand a case either for additional evidence and findings or for an B award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002); McAllister v. 14 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether to remand for further roceedings or simply to award benefits is within the discretion of [the] court.”). “[I]f additiona is || P ding ply d benefi hin the d f [th I]f add ‘5 16 proceedings can remedy defects in the original administrative proceeding, a social security case 5 7 should be remanded.” Garrison, 759 F.3d at 1019 (cleaned up). 18 Here, remand is appropriate to “remedy defects in the original administrative proceeding.” /d. [19] 0 CONCLUSION The court grants the plaintiff's motion, denies the Commissioner’s cross-motion, and remands 09 for further proceedings consistent with this order. 23 IT IS SO ORDERED. 4 Dated: January 24, 2022 Lit BC 25 TT LAUREL BEELER 26 United States Magistrate Judge [27] 28 *? Mot. — ECF No. 14 at 25-27.