Lawton v. Kijakazi

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION [7] 8 GEORGE C. L.,1 Case No. 20-cv-08232-RMI 9 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT 11 ANDREW SAUL, Re: Dkt. Nos. 18, 21 12 Defendant. [13] 14 Plaintiff, seeks judicial review of an administrative law judge (“ALJ”) decision denying his 15 application for benefits under Titles II and XVI of the Social Security Act. Plaintiff’s request for 16 review of the ALJ’s unfavorable decision was denied by the Appeals Council, thus, the ALJ’s 17 decision is the “final decision” of the Commissioner of Social Security which this court may 18 review. See 42 U.S.C. §§ 405 (g), 1383(c)(3). Both parties have consented to the jurisdiction of a 19 magistrate judge (dkts. 7 & 9), and both parties have moved for summary judgment (dkts. 18 & 20 21). For the reasons stated below, Plaintiff’s motion for summary judgment is granted, 21 Defendant’s motion is denied, and the case is remanded for the immediate calculation and award 22 of benefits. 23 LEGAL STANDARDS 24 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 25 conclusive.” 42 U.S.C. § 405 (g). A district court has a limited scope of review and can only set 26 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal [27] 1 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 2 “substantial evidence” appears throughout administrative law and directs courts in their review of 3 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 4 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 5 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 6 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 7 determining whether the Commissioner’s findings are supported by substantial evidence,” a 8 district court must review the administrative record as a whole, considering “both the evidence 9 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 10 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 11 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676 , 12 679 (9th Cir. 2005). 13 PROCEDURAL HISTORY 14 On February 23, 2017, Plaintiff filed applications for benefits under Titles II and XVI, 15 alleging an onset date of January 1, 2015. See Administrative Record “AR” at 24.2 As set forth in 16 detail below, the ALJ found Plaintiff not disabled and denied the application on October 1, 2019. 17 Id. at 10-22. The Appeals Council denied Plaintiff’s request for review on January 29, 2020. See 18 id. at 12-17. Thereafter, on November 23, 2020, Plaintiff sought review in this court (dkt. 1) and 19 argued that the ALJ failed to articulate specific and legitimate reasons for rejecting the opinion of 20 Plaintiff’s treating psychologist – which, when credited as true established Plaintiff’s disability. 21 See generally Pl.’s Mot. (dkt. 18) at 5-10. 22 SUMMARY OF THE RELEVANT EVIDENCE 23 Plaintiff – who is now 43 years old – has been diagnosed with a number of serious physical 24 and mental impairments. See AR at 382. In addition to having suffered a broken back (anterior 25 fracture of the lumbar spine at L1), Plaintiff is afflicted with compression deformity and lumbar 26 radiculopathy (also at L1), anxiety disorder, bipolar disorder (Type 1), posttraumatic stress [27] 1 disorder (“PTSD”), panic disorder, major depressive disorder, shizoaffective bipolar mania, and 2 total hearing loss in one ear (causing attendant balance problems). See id. at 27, 382. Plaintiff’s 3 treating psychologist, Lea D. Queen, Psy.D., rendered an opinion about Plaintiff’s ability to 4 function in the workplace which the ALJ gave “little weight because it is overly restrictive.” See 5 id. at 34. The ALJ also gave little weight to the testimonial statements provided by Plaintiff’s wife 6 because, inter alia, “she [did not] establish that she is familiar with Social Security Regulations 7 and disability determination criteria.” Id. at 35. The ALJ similarly rejected Plaintiff’s “statements 8 about the intensity, persistence, and limiting effects of this symptoms, [because] they are 9 inconsistent with the objective medical evidence.” Id. at 31. Accordingly, the following is a 10 statement of the evidence relevant to the ALJ’s determinations in those regards. 11 Function Reports 12 On March 16, 2017, Plaintiff and his wife completed and submitted function reports that 13 described (from each of their perspectives) Plaintiff’s abilities and limitations. See id. at 317-25, 14 342-49. The picture that emerges upon review of both of these reports is one where Plaintiff’s 15 conditions combine to render him heavily dependent on his wife in nearly every aspect of daily 16 life. At the outset, Plaintiff described the mental conditions that limit his ability to work as: 17 “apprehension, second guessing, anxious, nervousness, unsure, hesitant to speak / react, [and] 18 voices.” Id. at 317. As to the inclusion of “voices,” among his list of problems – Plaintiff later 19 described this as referring to auditory hallucinations – “I hearing things that I think are my 20 conscious pushing me to do things.” Id. at 323. In response to being asked what sorts of things he 21 was able to do previously that his illnesses now preclude, Plaintiff wrote that he was formerly able 22 to: “conversate (sic), have a social life, hear and not be unbalanced, not be afraid of being sick or 23 freaking out, having friends, working, and being happy.” Id. at 318. In response to a question 24 about how his illnesses affect his ability to effect personal care, Plaintiff responded that he is 25 nearly entirely dependent on his wife for everything from getting dressed to using the restroom – 26 in this regard, Plaintiff opened a window into the despair that marks his experience: “I can’t even 27 move and I wish it was over!” Id. As to his dependence on his wife, Plaintiff noted as follows 1 me to take pills, eat, shower, [and] change”; “my wife oversees this, I have seven medications”; 2 “wife makes me get activity”; Plaintiff only goes shopping “with wife for food”; Plaintiff spends 3 his time with “just wife at our mobile trailer”; otherwise Plaintiff only goes to church and doctors’ 4 appointments, for which he needs his the assistance of his wife; and, “don’t talk to no one but my 5 wife.” Id. at 318-22. In short, Plaintiff noted that he is limited – both physically and mentally – 6 because, to put it in his words: “I have a broken back, deaf in one ear, equilibrium problems, 7 schizoaffective [disorder], bipolar [disorder], anxiety, depression, PTSD,” and as such his life is 8 limited to “church on Sundays to pray to be healed,” and time spent in doctors’ offices.” Id. at 9 321-22. He summed up the depth of his despondency by stating: “[s]ince the onset of my 12-19-14 10 back injury and the drastic decline of my mental health – not to mention the complete loss of 11 hearing in my right ear, (equilibrium) my entire world has been shattered, I went from being in the 12 prime of my life to being but a shell of the man I use[d] to be, my life is ruined and if I’m not 13 approved for SSDI/SSI I will lose my trailer too, I am on the verge of complete and utter 14 destruction, I have nothing except this.” Id. at 324. 15 On the same date – March 16, 2017 – Plaintiff’s wife also completed and submitted a 16 third-party function report. See id. at 342-49. She noted that Plaintiff suffers from night terrors that 17 are related to his PTSD and that he also experiences “significant mood swings [that] make 18 [adhering to] daily routines difficult.” Id. at 343. She added that Plaintiff is no longer capable of 19 feeding or caring for himself due to his inability to focus or concentrate, in addition to his physical 20 limitations and his “unwillingness due to [his] depression.” Id. at 344. She also stated that these 21 conditions also combine to preclude his ability to handle bank accounts, or even to use a 22 checkbook or money orders because he is chronically forgetful, confused, and also because his 23 behavior is often governed by his compulsions. Id. at 345. She then opined that his physical and 24 mental impairments affect his abilities in every conceivable domain of work-related functioning. 25 See id. 347. Plaintiff’s wife then concluded by noting that interacting with authority figures such 26 as bosses, landlords, and police triggers Plaintiff’s anxiety and PTSD, and that his stress and 27 frustration tolerance is so poor in that it causes him to experience auditory hallucinations, in that 1 met, they “went out and did things outdoors,” but that since the onset of his impairments, her 2 relationship to him had come to resemble more of a caretaker than anything else. Id. at 346. 3 Hearing Testimony 4 Nearly two years later, on January 31, 2019, the ALJ convened a hearing at which Plaintiff 5 appeared (alone) to testify. See id. at 45-79. The hearing commenced with the ALJ asking 6 Plaintiff, “[s]o what kind of place are you living at right now?” Id. at 47. Plaintiff responded, 7 “[w]ell, unfortunately, ma’am, I’m homeless right now . . . me and my wife separated[,] [s]he took 8 all the cars, so I have to walk to school . . . the disability resources at Santa Rosa Junior College 9 has a program that they help, try to get us, you know, to take some classes and stuff, and it’s pretty 10 good for me, because it keeps me busy.” Id. at 48. When asked for the number of classes for which 11 he was registered, Plaintiff responded with the following lengthy narrative: “[w]ell, I signed up for 12 four classes - - but I think I’m going to be able to do two classes, because the other ones, they’re 13 introduction, but they’re really hard, and like, I don’t understand them very well . . . [o]ne of them 14 is beginning - - I have this right here. Beginning operating systems or beginning, like, to use, like 15 Windows and stuff like that . . . [a]nd the other - - and then the other one is, like, how to - - like, 16 Windows has, like, a shell program I think it’s called, like, how to use the other part of Windows, 17 like the command lines and stuff like that . . . [a]nd that was pretty difficult for me, because there’s 18 a lot of remembering long words and stuff.” Id. at 48-49. 19 When the ALJ asked Plaintiff to describe the difficulties he experienced with his last job in 20 a sales capacity, Plaintiff stated, “[i]t’s - - I don’t know - - it’s awkward to talk to people, I have - - 21 one of my problems is anxiety, so I - - sometimes, I could do it, but, like, if it’s, like, the wrong 22 time of day or something or I don’t know what it is, but, like, my skin will tingle, you know, my 23 skin will tingle, and I can’t really function, I mean, I have to wait for the attack to subside.” Id. at 24 54. When asked to describe what prevents him from working, Plaintiff stated, “[w]ell, I have a - - 25 I’ve been diagnosed with PTSD, it’s - - I mean, I have depression and stuff like that, and you 26 know, I definitely gave it my best shot to work, but the PTSD, like, is, like, developed in my head 27 or whatever they call it, like, it’s pretty debilitating at times, even with the medicine, you know? 1 is communicate . . . I get real stressed out and the depression and everything kicks in, I hear 2 voices. My official diagnosis is schizo bipolar something disorder or something like that, and 3 when I go into a mania or a low, then that’s when I hear the confusion.” Id. at 58-59. In response 4 to a question about indications of methamphetamine use in his medical records, Plaintiff 5 explained, “I have taken it on several occasions when I tried to kill myself.” Id. at 61. When asked 6 to elaborate on when his last suicide attempt took place, Plaintiff related, “[j]ust a little while ago, 7 when my wife left. I came out of Walmart, and she was gone, she took my RV and everything I 8 owned and . . . she just left me standing in the parking lot.” Id. When asked if he has done 9 anything like that since, Plaintiff explained “[n]o, that didn’t work, so I tried another way [and] 10 [t]hat didn’t work either and they put me in a crisis stabilization unit.” Id. at 61-62. 11 Plaintiff was then asked to describe his auditory hallucinations; he responded to the 12 following effect, “[w]ell, they vary, but I mean, right now, I think my wife is just trying to tell me 13 it’ll be okay, I’ll make it through this.” Id. at 62. When asked if there are other voices, Plaintiff 14 broke down and simply responded, “I miss my wife.” Id. After Plaintiff was given some time to 15 collect himself, the ALJ asked him again whether or not he ever hears any other voices, to which 16 Plaintiff answered, “[o]ne of my daughters . . . I hear my daughter that I did it a day before or 17 whatever.” Id. at 62-63. Lastly, the ALJ asked Plaintiff to explain whether or not things are better 18 or worse for him since he stopped using drugs and alcohol – Plaintiff explained: “I know this 19 won’t make sense to anybody, ma’am, but it – I don’t - - I never - - I don’t - - I’m not a big drug 20 user. I mean, I - that’s not my - - I like alcohol, and I mean, I’ve used drugs before, but just 21 because I know that they’re - - and that’s what I wanted. I mean, I - - so I mean, yeah, I haven’t - - 22 I’m not using drugs, but my life was - - it’s - - I mean, it hasn’t really been any worse ever. I 23 mean, it’s - - I’m very - - I’m very scared all the time and alone, and I hear my wife talking to me, 24 but she’s not there, and I just don’t get what’s going on. And . . .” Id. at 70. With that, the ALJ 25 interrupted and stated, “Okay. All right. I think that’s all the questions that I have for now.” Id. 26 Upon the completion of Plaintiff’s testimony, the ALJ questioned a vocational expert 27 (“VE”) by posing a series of hypothetical questions. See id. at 71-79. In pertinent part, the VE 1 person would be unable to secure or maintain any form of competitive employment. Id. at 77-78. 2 Medical Evidence 3 From May of 2015 to December of 2016, Plaintiff underwent intensive psychiatric 4 treatment under the care of Neil Ehrlich, M.D., on behalf of the Behavioral Health Division of the 5 Sonoma County Department of Health Services. See id. at 487-529. A review of Dr. Ehrlich’s 6 treatment notes reveals the picture of a deeply distressed individual. For example, on various 7 occasions, Dr. Ehrlich noted: “[h]e feels lethargic, blank, and ‘stupid’”; “[h]e is afraid that he will 8 get kicked out of [the] Mary Isaacs [homeless shelter]”; “symptoms worsening”; “[h]e had a very 9 hard time in jail and has been dealing with overwhelming episodes of anxiety . . . the anxiety is so 10 severe sometimes that he feels it in his joints and has taken to obsessively cracking his knuckles 11 trying to relieve it”; “severe anxiety . . . [h]e is ‘very tense’ and feels like he is ‘jumping out of 12 [his] skin”; reporting in May of 2015 that Plaintiff “[j]ust got out of A Turning Point [shelter] and 13 [is] now at Sam Jones Shelter, he and his wife plan to get back together and get a place in a few 14 months, but she is hesitant and wants to see if he is using again”; “[h]e got into an argument with 15 his wife and began driving recklessly, ultimately getting into a high speed chase with the police, 16 hiding, and turning himself in several days later”; “[w]hen manic, he is ‘arrogant’ [and] 17 excessively social, and exhibits poor judgment and decision-making, when depressed, he feels that 18 he is ‘in a lull’ and obsesses, constantly seeking reassurance from and check[ing] in with his 19 wife”; Plaintiff started using alcohol when he was 11, “becoming a full blown alcoholic at 14.” 20 See e.g. id. at 487, 489, 497, 501, 502. 21 Thereafter, Plaintiff underwent an extensive course of psychotherapy under the care of Lea 22 D. Queen, Psy.D., at frequent and regular intervals between April of 2017 and March of 2018. See 23 id. at 614-729. During numerous treatment sessions, Dr. Queen repeatedly diagnosed Plaintiff 24 with bipolar disorder, depression, anxiety disorder, PTSD, and schizoaffective disorder. See e.g. 25 id. at 701, 711. Dr. Queen cataloged Plaintiff’s extensive list of psychological symptoms from his 26 major depressive disorder, his anxiety disorder, his PTSD, his bipolar disorder, and his 27 schizoaffective disorder as including the frequent exhibition of depression, anxiety, various 1 obsessive and compulsive behaviors. See id. at 701, 707. As to Plaintiff’s tendency to obsess, Dr. 2 Queen noted on one occasion that Plaintiff “related some of his experiences in prison and how 3 terrified he is that he’ll be railroaded into returning and . . . that he is often obsessed with doing 4 everything right in order to avoid further brushes with the law.” Id. at 697. On another occasion, in 5 January of 2018, Dr. Queen noted that Plaintiff “related some of his experiences in early life, and 6 it became clear that his early life contributes to his PTSD, for which he’s never had treatment.” 7 See id. at 692. Unsurprisingly, the administering of a depression / anxiety screening (conducted in 8 October of 2018) revealed that Plaintiff was almost always afflicted with nearly every single 9 indicator of severe depression (e.g., little interest or pleasure in doing things, feeling down or 10 hopeless nearly every day, having little energy, thoughts that he would be better off dead, and 11 thoughts about hurting himself, etc.). See id. at 667-68. 12 Midway through the course of Plaintiff’s psychotherapy, Dr. Queen completed and 13 submitted a detailed questionnaire setting forth her opinions about Plaintiff’s ability to function in 14 the workplace. See id. at 614-618. She noted at the outset that Plaintiff’s principal psychological 15 diagnosis is for bipolar disorder, while assessing a global assessment of functioning (“GAF”) 16 score of 42. Id. at 614. She then listed the pertinent signs and symptoms as follows: blunt, flat or 17 inappropriate affect; feelings of guilt or worthlessness; impairment in impulse control; generalized 18 persistent anxiety; mood disturbance; difficulty thinking or concentrating; persistent disturbances 19 in moor or affect; apprehensive expectation; paranoid thinking or inappropriate suspiciousness; 20 recurrent obsessions or compulsions which are a source of marked distress; emotional withdrawal 21 or isolation; bipolar syndrome with a history of episodic periods manifested by the full 22 symptomatic picture of both manic and depressive syndromes (and currently characterized by 23 either or both syndromes); intense and unstable interpersonal relationships and impulsive and 24 damaging behavior; perceptual or thinking disturbances; hallucinations or delusions; motor 25 tension, emotional lability; deeply ingrained maladaptive patterns of behavior; illogical thinking; 26 vigilance and scanning; pathologically inappropriate suspiciousness or hostility; pressures of 27 speech; sleep disturbance; and, involvement in activities that have a high probability of painful 1 consequences which are not recognized. See id. at 615.3 2 Dr. Queen then found marked limitations in Plaintiff’s abilities as to the following 3 domains, such that he “cannot satisfactorily perform this activity independently, appropriately, 4 effectively, and on a sustained basis in a regular work setting” (as to unskilled work): sustain an 5 ordinary routing without special supervision; make simple work-related decisions; complete a 6 normal workday and workweek without interruptions from psychologically based symptoms; 7 perform at a consistent pace without an unreasonable number and length of rest periods; or, get 8 along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes. 9 Id. at 616. In the following domains (also related to unskilled work), Dr. Queen found extreme 10 limitations (“no useful ability to function” at all): ask simple questions or request assistance; 11 accept instructions and respond appropriately to criticism form supervisors; or, deal with normal 12 work stress. Id. As to skilled and semi-skilled work, Dr. Queen found a marked limitation (unable 13 to meet competitive standards) in Plaintiff’s ability to deal with stress and an extreme limitation 14 (total inability to function) in his ability to set realistic goals or make plans independently of 15 others. Id. at 617. Dr. Queen also found marked limitations in Plaintiff’s ability to interact 16 appropriately with the public, as well as in the ability to maintain socially appropriate behavior. Id. 17 At bottom, Dr. Queen found that Plaintiff can be expected to have good days and bad days, but 18 that under any circumstance, he would likely be absent from work for more than 3 days per month. 19 Id. at 618. She also opined that his impairments can be expected to last longer than 12 months; 20 that his impairments are reasonably consistent with the symptoms and functional limitations that 21 she had outlined; and, that alcohol and substance abuse have not contributed to any of Plaintiff’s 22 limitations. Id. 23 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 24 A person filing a claim for social security disability benefits (“the claimant”) must show 25 that he has the “inability to do any substantial gainful activity by reason of any medically 26 determinable physical or mental impairment” which has lasted or is expected to last for twelve or [27] 1 more months. See 20 C.F.R. §§ 416.920 (a)(4)(ii), 416.909.4 The ALJ must consider all evidence in 2 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five3 step sequential evaluation process to determine whether the claimant is disabled (see id. § 4 416.920). “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that 5 the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 6 Here, the ALJ set forth the applicable law under the required five-step sequential 7 evaluation process. See AR at 25-26. At Step One, the claimant bears the burden of showing he 8 has not been engaged in “substantial gainful activity” since the alleged date on which the claimant 9 became disabled. See 20 C.F.R. § 416.920 (b). If the claimant has worked and the work is found to 10 be substantial gainful activity, the claimant will be found not disabled. See id. The ALJ in this case 11 found that (for Title II purposes) Plaintiff met the insured status requirements of the Social 12 Security Act through June 30, 2021, and that he had not engaged in substantial gainful activity 13 since January 1, 2015, the alleged onset date. See AR at 26-27. At Step Two, the claimant bears 14 the burden of showing that he has a medically severe impairment or combination of impairments. 15 See 20 C.F.R. § 416.920 (a)(4)(ii), (c). “An impairment is not severe if it is merely ‘a slight 16 abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the 17 ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 18 S.S.R. No. 96–3(p) (1996)). At Step Two, the ALJ found that Plaintiff suffered from the following 19 severe impairments: compression deformity of L1; degenerative disc disease; hearing loss; bipolar 20 disorder; anxiety disorder; and polysubstance abuse. See AR at 27-28. However, the ALJ made no 21 mention of Plaintiff’s major depressive disorder or his PTSD at Step Two, nor it does not appear 22 that these conditions were either mentioned or considered elsewhere in the opinion. See id. at 2723 37. 24 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 25 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920 (a)(4)(iii), (d). The claimant bears the [27] 4 The regulations for supplemental security income (Title XVI) and disability insurance benefits (Title II) 1 burden of showing his impairments meet or equal an impairment in the listing. Id. If the claimant 2 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 3 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 4 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 5 combination of impairments that met or medically equaled the severity of any of the listed 6 impairments. See AR at 28-30. Next, the ALJ determined that Plaintiff retained the RFC to 7 perform light work with certain limitations including that he would be limited to performing 8 simple routine tasks with only occasional interaction with coworkers, supervisors, and the public. 9 See id. at 30-35. 10 At Step Four, the ALJ determined that Plaintiff is unable to perform his past relevant 11 work. Id. at 35-36. Lastly, at Step Five, based on the RFC as formulated, and the testimony of the 12 VE, the ALJ found that Plaintiff can still perform the functions of certain jobs that exist in 13 significant numbers in the national economy such as collator operator, photocopy machine 14 operator, and routing clerk. See id. at 36-37. Thus, the ALJ concluded that Plaintiff had not been 15 under a disability, as defined in the Social Security Act, at any time prior between the alleged 16 onset date, January 1, 2015, and the date of the ALJ’s decision, March 21, 2019. Id. at 37. 17 DISCUSSION 18 As discussed below, the court finds that the ALJ improperly rejected the testimony and 19 statements of Plaintiff and his wife. The ALJ also improperly rejected the opinions of Plaintiff’s 20 treating psychologist (Dr. Lea Queen). The upshot of these errors is that the ALJ formulated an 21 incorrect RFC, on the basis of which the ALJ rendered an incorrect non-disability finding. 22 Because the rejected evidence is supported by the overwhelming tide of the record evidence, and 23 because the ALJ improperly rejected it, the court will credit that evidence as true. Further, once 24 credited as true, the combination of that testimony and medical opinion evidence establishes that 25 Plaintiff is clearly disabled; accordingly, as set forth below, the court will remand this case to the 26 Commissioner for the immediate calculation and award of appropriate benefits. 27 The ALJ rejected Plaintiff’s statements through the use of a frequently-used and 1 about the intensity, persistence and limiting effects of his symptoms, they are inconsistent with the 2 objective medical evidence. See id. at 31. However, the ALJ did not specify which parts of 3 Plaintiff’s testimony were supposedly inconsistent with which parts of the record. See id. at 27-35. 4 With the exception of that boilerplate, the ALJ’s only other explanation as to why some or all of 5 Plaintiff’s testimony was supposedly “inconsistent” with the objective medical evidence was 6 presented in the following four statements: (1) “the claimant did positively respond to his 7 medications”; (2) “the claimant was able to transition from jail to [a] homeless shelter and ride 8 public transportation, reflecting an ability to adapt”; (3) “despite a history of suicidal thoughts and 9 attempts, the claimant [otherwise] exhibited fair to good judgment and good insight and was future 10 oriented”; (4) Plaintiff was “regularly cooperative during appointments.” See id. at 30, 33. 11 An ALJ must provide specific, clear, and convincing reasons to reject a claimant’s 12 symptom testimony. Smolen v. Chater, 80 F.3d 1273, 1280 (9th Cr. 1996). Valid reasons to reject 13 Plaintiff testimony might include prior inconsistent statements, evidence of effective treatment that 14 lessens the degree or severity of symptoms that were the subject of that testimony, and allegations 15 that are inconsistent with activities of daily living. See e.g. Ghanim v. Colvin, 763 F.3d, 1154 , 16 1163 (9th Cir. 2014) (inconsistent statements); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) 17 (effective treatment); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (activities of daily living). 18 First, the ALJ’s reasons were non-specific in that the ALJ did not explain which parts of Plaintiff’s 19 testimony were being rejected, nor did the ALJ explain which parts of Plaintiff’s testimony were 20 supposedly inconsistent with which parts of the record. Second, the ALJ’s reasoning was unclear 21 and unconvincing because it was patently incorrect. While Plaintiff may have (at times) reported 22 positive effects from some of his medications, it cannot be reasonably suggested that this equated 23 to a lessening of the symptoms of his mental health impairments such as to lessen the degree of 24 the attendant limitations. Also, being released from jail to a homeless shelter and then riding a bus 25 does not show a sufficient degree of adaptability as to cast any doubt on any quantum of Plaintiff’s 26 testimony about his inability to work due to the symptoms associated with his bipolar disorder, 27 anxiety, major depressive disorder, PTSD, and schizoaffective disorder. Third, it is most 1 described by an intake nurse as exhibiting “fair to good judgment.” It should also go without 2 saying that living in a homeless shelter and sitting in a bus does to mean that Plaintiff can function 3 in the workplace. Similarly, being uncooperative during medical appointments is not the sine qua 4 non of being unable to function in the employment setting. 5 In short, the ALJ’s rejection of Plaintiff’s statements was not based on substantial evidence 6 because the overwhelming body of the relevant record evidence supports and bolsters Plaintiff’s 7 testimony. Given that the ALJ improperly rejected Plaintiff’s statements, the court will now credit 8 those statements as true as a matter of law. See e.g., Christopher E. v. Comm’r of SSA, No. 6:189 cv-00824-MK, 2019 U.S. Dist. LEXIS 132507 , at *26 (D. Or. Aug. 7, 2019) (“The ALJ’s 10 statement is conclusory, and his analysis provides no specific, clear and convincing reasons based 11 on substantial evidence. For this reason alone, Plaintiff’s testimony is credited as true.”); see also 12 Abraham A. v. Saul, No. 19-cv-04350-RMI, 2021 U.S. Dist. LEXIS 47072 , at *20 (N.D. Cal. Mar. 13 11, 2021) (same). 14 The ALJ also improperly rejected the statements of Plaintiff’s wife. See AR at 35. In this 15 regard, the ALJ only explained that Plaintiff’s wife “did not provide specific functional 16 limitations, nor did she establish that she is familiar with Social Security Regulations and 17 disability determination criteria.” See AR at 35. It is well established that in determining whether a 18 claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant’s ability 19 to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see also 20 C.F.R. §§ 20 404.1513(a)(4) (“Evidence from nonmedical sources is any information or statement(s) from a 21 nonmedical source (including you) about any issue in your claim. We may receive evidence from 22 nonmedical sources either directly from the nonmedical source or indirectly, such as from forms 23 we receive and our administrative records.”), & 416.913(a) (same). Indeed, “lay testimony as to a 24 claimant’s symptoms or how an impairment affects ability to work is competent evidence . . . and 25 therefore cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 26 Cir. 1996) (citations omitted). Although eyewitnesses may sometimes have to rely, to some extent, 27 on communications with the claimant in ascertaining whether he or she is disabled or malingering, 1 valuable perspective in observing a claimant’s symptoms and daily activities and are therefore 2 eminently competent to testify as to a claimant’s condition. See e.g. Sprague v. Bowen, 812 F.2d 3 1226, 1232 (9th Cir. 1987). “Disregard of this evidence violates the Secretary’s [own] regulation 4 that he [or she] will consider observations by non-medical sources as to how an impairment affects 5 a claimant’s ability to work.” Id. (citing what was then codified at 20 C.F.R. § 404.1513 (e)(2)). 6 Consequently, “[i]f the ALJ wishes to discount the testimony of lay witnesses, he [or she] must 7 give reasons that are germane to each witness.” Dodrill, 12 F.3d at 919 ; see also Lewis v. Apfel, [8] 236 F.3d 503, 511 (“Lay testimony as to a claimant’s symptoms is competent evidence that an 9 ALJ must take into account, unless he or she expressly determines to disregard such testimony and 10 gives reasons germane to each witness for doing so.”). 11 First, it should not go without mention that the ALJ’s reasoning as to why Plaintiff’s wife’s 12 statements were rejected flies in the face of the Agency’s own regulations. Second, if the ALJ 13 were correct, and only witnesses who “establish that [they] [are] familiar with Social Security 14 Regulations and the disability determination criteria” would be competent witnesses, then no 15 claimant (or close friend or relative) could offer such evidence unless they happened to also be a 16 claims adjuster or ALJ at the Social Security Administration. In any event, Plaintiff’s wife was not 17 venturing to present expert opinions, medical findings, or testimony about “disability 18 determination criteria,” instead she was merely reporting her own observations of Plaintiff’s 19 limitations. The unquestionable value of this type of lay testimony, particularly when it comes 20 from a member of a claimant’s household, is well established. See e.g. Smolen, 80 F.3d at 1289 . 21 The ALJ erred by discounting Plaintiff’s wife’s statements simply because she did not “establish a 22 familiarity with Social Security Regulations,” as that explanation has no basis in the law, or in the 23 Agency’s regulatory scheme. Therefore, the court finds that the ALJ failed to provide legally 24 sound reasons for rejecting Plaintiff’s wife’s statements in that the ALJ’s explanation was the 25 product of legal error, let alone not being germane to Plaintiff’s wife. See e.g. Eggerud v. Astrue, [26] 2008 U.S. Dist. LEXIS 84386 , 2008 WL 4682651 , *8 (E.D. Wash. Oct. 21, 2008) (holding that 27 the ALJ could not discount lay witness testimony merely because the witness was “not medically 1 and symptoms, or of the frequency or intensity of unusual moods or mannerisms”); Williams v. 2 Astrue, 2009 U.S. Dist. LEXIS 34528 , 2009 WL 1110312 , *10 (E.D. Cal. April 23, 2009) (same); 3 Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (finding that a lay person, plaintiff’s wife, 4 “though not a vocational or medical expert, was not disqualified from rendering an opinion as to 5 how her husband’s condition affects his ability to perform basic work activities”) (citing 20 C.F.R. 6 § 404.1513(d)(4)) (providing that evidence provided by lay witnesses may be used to show “the 7 severity of [a claimant’s] impairment(s) and how it affects [the claimant’s] ability to work”)); and 8 McCutcheon v. Astrue, 378 Fed. Appx. 649, 651 (9th Cir. 2010) (finding that the ALJ erred by 9 rejecting lay witness testimony on the basis that the witness had no medical or vocational training) 10 (citing Bruce, 557 F.3d at 115-116 ). Accordingly, because the ALJ improperly rejected Plaintiff’s 11 wife’s statements, those statements will now be credited as true as a matter of law. See Robinson v. 12 Colvin, No. 3:10-cv-05572-KLS, 2013 U.S. Dist. LEXIS 127610 , at *29 (W.D. Wash. Sep. 6, 13 2013) (“Where lay witness evidence is improperly rejected, that testimony may be credited as a 14 matter of law.”). 15 As to the opinions of Plaintiff’s treating psychologist – Dr. Lea Queen – the ALJ credited 16 her opinion that Plaintiff is unable to perform skilled or semi-skilled work, however, the ALJ 17 rejected the entirety of the remainder of her opinions. See AR at 34. Here, the ALJ’s explanation 18 was exceptionally terse: “. . . the remainder of Dr. Queen’s opinion [is given] little weight because 19 it is overly restrictive.” Id. Instead, the ALJ formulated the RFC by giving “partial weight” to the 20 opinions of two state agency non-examining consultants, as bolstered by certain isolated nuggets 21 from the record to which the ALJ assigned undue weight – such as the fact that Plaintiff’s 22 relegation to a homeless shelter upon being released from jail, as well as the fact that he once rode 23 a bus, demonstrated his adaptability. See id. 24 It is now axiomatic that “[t]he opinion of a nonexamining physician cannot by itself 25 constitute substantial evidence that justifies the rejection of the opinion of either an examining 26 physician or a treating physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995); see also 27 Revels v. Berryhill, 874 F.3d 648, 654-55 (9th Cir. 2017); Widmark v. Barnhart, 454 F.3d 1063 , 1 Erickson v. Shalala, 9 F.3d 813 , 818 n.7 (9th Cir. 1993). Furthermore, the ALJ’s reliance on 2 certain isolated snippets from the record (e.g., living at a shelter or sitting in a bus), all of which 3 were removed from their context, constitutes an unpersuasive effort to discredit Plaintiff’s treating 4 psychologist. 5 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 6 state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 7 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v. Barnhart, [8] 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 9 by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 10 reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216 ); see 11 also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating 12 doctor’s credible opinion on disability are comparable to those required for rejecting a treating 13 doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a detailed and thorough 14 summary of the facts and conflicting clinical evidence, stating his [or her] interpretation thereof, 15 and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 16 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). In situations where a Plaintiff’s condition 17 progressively deteriorates, the most recent medical report is the most probative. See Young v. 18 Heckler, 803 F.2d 963, 968 (9th Cir. 1986). 19 It is not necessary to determine whether or not Dr. Queen’s findings and opinions were 20 “contradicted” by the opinions of the non-examining state agency consultants because the ALJ’s 21 explanation for rejecting Dr. Queen’s well-founded opinions did not even rise to the level of 22 specific and legitimate reasons supported by substantial evidence given that, in light of the record 23 as a whole (as described in detail above), it cannot be reasonably said that the outlier, and 24 incomplete, opinions of the non-examining state agency consultants (as embodied by the RFC as 25 formulated as modified by the ALJ), in combination or individually, constitute “substantial 26 evidence.” To put it another way, in light of the evidentiary record, the conclusory and 27 unsupported opinions by the non-examining consultants (as largely adopted by the ALJ and 1 relevant evidence as a reasonable mind might accept as adequate to support a conclusion” to the 2 effect that Plaintiff’s mental health conditions are attended with so few limitations as are found in 3 the RFC described above. See Biestek, 139 S. Ct. at 1154 . 4 In short, calling Dr. Queen’s opinions “overly restrictive” is neither specific, nor 5 legitimate, nor is it based on substantial evidence. Dr. Queen’s opinions were bolstered and 6 corroborated by the treatment notes rendered by Dr. Ehrlich (Plaintiff’s previous treating 7 psychiatrist), by Plaintiff’s wife’s statements, and by Plaintiff’s own testimony. Indeed, even 8 putting aside the substance of Plaintiff’s testimony – the very form of that testimony even 9 confirmed and corroborated each of the limitations opined by Dr. Queen. As stated above, the 10 evidentiary picture presented by this case is one of a person who cannot take care of himself, who 11 has a seriously damaged psyche, and who operates at the very edge (if even that) of his ability to 12 cope. Therefore, because the ALJ improperly rejected Dr. Queen’s opinions, those opinions will 13 now be credited as true as a matter of law. See e.g. Lester, 81 F.3d at 834 (stating the general rule 14 that the improperly discredited opinion of a treating or examining physician is credited as true as a 15 matter of law). 16 Nature of Remand 17 The decision whether to remand for further proceedings or for payment of benefits 18 generally turns on the likely utility of further proceedings. Carmickle v. Comm’r, SSA, 533 F.3d 19 1155, 1169 (9th Cir. 2008). A district court may “direct an award of benefits where the record has 20 been fully developed and where further administrative proceedings would serve no useful 21 purpose.” Smolen, 80 F.3d at 1292 . The Court of Appeals for the Ninth Circuit has established a 22 three-part test “for determining when evidence should be credited and an immediate award of 23 benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an 24 immediate award of benefits is appropriate when: (1) the ALJ has failed to provide legally 25 sufficient reasons for rejecting such evidence; (2) there are no outstanding issues that must be 26 resolved before a determination of disability can be made; and, (3) it is clear from the record that 27 the ALJ would be required to find the claimant disabled were such evidence credited. Id. The 1 would have to award benefits if the case were remanded for further proceedings. Id. at 1178 n.2; 2 see also Garrison v. Colvin, 759 F.3d 995, 1021-23 (9th Cir. 2014) (when all three conditions of 3 the credit-as-true rule are satisfied, and a careful review of the record discloses no reason to 4 seriously doubt that a claimant is, in fact, disabled, a remand for a calculation and award of 5 benefits is required). Here, in light of the above-discussed and improperly discredited lay-witness 6 account, as well as Plaintiff’s own statements, and the medical opinion evidence, it is clear that 7 Plaintiff has in fact been disabled since at least his alleged onset date, and it is equally clear that 8 further administrative proceedings would serve no useful purpose because the ALJ would be 9 required to find Plaintiff disabled for a whole host of reasons on remand. 10 Plaintiff’s major depressive disorder, his anxiety disorder, his PTSD, and his bipolar 11 disorder – each – would undoubtedly compel independent disability findings at Step Three 12 because they each clearly meet, or at least medically equal, the severity of the criteria for the 13 relevant listings. However, for present purposes, it is only necessary to undertake the Step Three 14 analysis for one or two such disorders; to wit: under Listing 12.04(A)(1) (depressive disorder), and 15 12.04(A)(2) (bipolar disorder). See 20 C.F.R. Pt. 404, Subpt. P, app. 1, § 12.04. Therefore, the first 16 reason that further administrative proceedings would be useless is that based on the improperly 17 discredited evidence, Plaintiff’s depression clearly meets the criteria of Listing 12.04(A)(1). In 18 order to satisfy the pertinent criteria of Listing 12.04 regarding either depression or bipolar 19 disorder, it is necessary to satisfy the requisite number of criteria listed in Subpart (A) and (B), or 20 (A) and (C). See id. 21 For depression, Subpart (A)(1) requires medical documentation of a depressive disorder, 22 characterized by five or more of the following: depressed mood; diminished interest in almost all 23 activities; appetite disturbance with change in weight; sleep disturbance; observable psychomotor 24 agitation or retardation; decreased energy; feelings of guilt or worthlessness; difficulty 25 concentrating or thinking; or thoughts of death or suicide. § 12.04(A)(1). As set forth above, 26 between his statements, his wife’s statements, and those of his treating physicians, Plaintiff meets 27 all of the Subpart A(1) criteria for depression. See AR at 47-70 (Plaintiff’s hearing testimony); see 1 Report); see also id. at 683-727, 614-19 (Dr. Queen’s treatment notes and Mental RFC) (finding 2 Plaintiff to be afflicted with virtually all of these indicia). Furthermore, as set forth above, the 3 evidence of record also reflects that Plaintiff meets at least five (if not six) of the Subpart (A)(2) 4 criteria relating to his bipolar disorder, where it is only necessary to satisfy as little as three of the 5 criteria. See id. at 683-727, 614-19 (Dr. Queen’s treatment notes and Mental RFC). Additionally, 6 when the improperly discredited evidence is given effect, Plaintiff clearly meets or equals the 7 severity of all of the four categories outlined in Subpart B (where only one must be satisfied as to 8 an extreme limitation, or two as to marked limitations) in that Dr. Queen opined extreme 9 limitations in three categories of work-related functioning and marked limitations in another five 10 categories. See id. at 616-17. Further, although it would be totally unnecessary, the improperly 11 discredited evidence – when given proper effect – also satisfies the dual requirements of Subpart 12 (C) as to both depression and bipolar disorder in that the record reflects that Plaintiff’s various 13 physical impairments combine to collectively worsen the effects of each of his mental 14 impairments (see id. at 617 – Dr. Queen opined that Plaintiff’s physical impairments worsen his 15 mental impairments) – indeed, the record (as set forth above) clearly manifests “a medically 16 documented history of the existence of [several] disorder[s] over a period of at least 2 years, and 17 there is evidence of both medical treatment, mental health therapy, psychosocial support(s), or a 18 highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of [the] 19 mental disorder; and, marginal adjustment, that is, [Plaintiff] has [a] minimal capacity to adapt to 20 changes in [his] environment or to demands that are not already part of [his] daily life.” Compare 21 20 C.F.R. Pt. 404, Subpt. P, app. 1, § 12.04, with AR at 614-19, 667-727. Accordingly, the court 22 finds that based on the evidence herein credited as true, Plaintiff’s major depressive disorder and 23 his bipolar disorder are both clearly disabling at Step Three. 24 For these same reasons, once this improperly rejected evidence is given effect, the ALJ 25 would also be required to find that Plaintiff is disabled during the RFC formulation phase because 26 he clearly has no residual capacity to function in the workplace at all. Moreover, the VE testified 27 that if someone were to be off-task more than 20% of the time, such a person would be unable to 1 Dr. Queen’s opinions that Plaintiff’s psychological symptoms would cause him to be absent from 2 work more than 3 days per month (id. at 618), with her opinion that he has no ability to function at 3 all in dealing with normal work stress, in asking simple questions or requesting assistance, or in 4 accepting instructions and responding appropriately to criticism from supervisors (id. at 616) – not 5 to mention the several categories in which she opined marked limitations – it would necessarily 6 follow that Plaintiff would be off-task (even in an unskilled job) for considerably more than 20% 7 of the time. Indeed, he would likely be off-task for the overwhelming majority of each and every 8 workday. Accordingly, on remand, the ALJ would also be required to find Plaintiff disabled at 9 Step Five based on the testimony of the VE because Plaintiff’s conditions would cause him to be 10 off-task or absent nearly all of the time. 11 At this juncture, the court will note that in cases where each of the credit-as-true factors is 12 met, it is generally only in “rare instances” where a review of the record as a whole gives rise to a 13 “serious doubt as to whether the claimant is actually disabled.” Revels, 874 F.3d at 668 n.8 (citing 14 Garrison, 759 F.3d at 1021 ). This is certainly not one of those “rare instances,” as the evidentiary 15 record leaves no room for any doubt that Plaintiff has in fact been disabled, at least since his 16 alleged onset date, if not much earlier. Needlessly remanding a disability claim for further 17 unnecessary proceedings would only delay much needed income for claimants such as Plaintiff 18 who are unable to work and who are entitled to benefits; doing so would in turn subject them to 19 “tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on 20 remand.” Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). The 21 court is satisfied that the ALJ’s unsupported conclusions were thoroughly negated by the 22 overwhelming weight of the record evidence which conclusively and convincingly establishes 23 Plaintiff’s disability such that no further inquiry is necessary. 24 // 25 // 26 // 27 // 1 CONCLUSION 2 As described above, Plaintiff's summary judgment motion (dkt. 18) is GRANTED, 3 || Defendant’s summary judgment motion (dkt. 21) is DENIED, the ALJ’s non-disability finding is 4 || REVERSED and the case is REMANDED for the immediate calculation and award of 5 appropriate benefits. 6 IT IS SO ORDERED. 7 Dated: March 21, 2022 [8] ROBERT M. ILLMAN 9 United States Magistrate Judge [11] a 12 2B [16] Z 18