McBride v. Saul, No. 1:2019cv03057 - Document 18 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Magistrate Judge Mary K. Dimke. (AY, Case Administrator)

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McBride v. Saul Doc. 18 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.571 Page 1 of 41 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Jun 24, 2020 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JARRID M.,1 No. 1:19-cv-03057-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 16 12 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. 16 Additionally, Plaintiff is transgender and as such, female pronouns are used in this 17 order. 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs 20 the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 2 ORDER - 1 Dockets.Justia.com Case 1:19-cv-03057-MKD 1 ECF No. 18 filed 06/24/20 PageID.572 Page 2 of 41 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 15, 16. The parties consented to proceed before a magistrate judge. ECF No. 3 8. The Court, having reviewed the administrative record and the parties’ briefing, 4 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 5 motion, ECF No. 15, and denies Defendant’s motion, ECF No. 16. 6 7 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 2 ORDER - 2 Case 1:19-cv-03057-MKD 1 ECF No. 18 filed 06/24/20 PageID.573 Page 3 of 41 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 9 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 13 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be “unable to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than twelve 18 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 19 “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of 2 ORDER - 3 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.574 Page 4 of 41 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. 20 C.F.R. § 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 2 ORDER - 4 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.575 Page 5 of 41 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 20 adjusting to other work, the Commissioner must find that the claimant is not 2 ORDER - 5 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.576 Page 6 of 41 1 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 2 other work, analysis concludes with a finding that the claimant is disabled and is 3 therefore entitled to benefits. Id. 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant 8 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 9 700 F.3d 386, 389 (9th Cir. 2012). 10 11 ALJ’S FINDINGS On March 6, 2015, Plaintiff applied for Title XVI supplemental security 12 income benefits alleging an amended disability onset date of March 6, 2015. Tr. 13 47, 155-60. The application was denied initially, Tr. 89-93, and on 14 reconsideration, Tr. 97-100. Plaintiff appeared before an administrative law judge 15 (ALJ) on April 16, 2018. Tr. 41-65. On May 22, 2018, the ALJ denied Plaintiff’s 16 claim. Tr. 12- 31. 17 At step one of the sequential evaluation process, the ALJ found Plaintiff has 18 not engaged in substantial gainful activity since March 6, 2015. Tr. 17. At step 19 two, the ALJ found that Plaintiff has the following severe impairments: major 20 2 ORDER - 6 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.577 Page 7 of 41 1 depressive disorder, gender identity disorder, generalized anxiety disorder, 2 posttraumatic stress disorder, and dysthymic disorder. Id. 3 At step three, the ALJ found Plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals the severity of a listed 5 impairment. Tr. 18-20. The ALJ then concluded that Plaintiff has the RFC to 6 perform a full range of work at all exertional levels but with the following 7 limitations: 8 9 10 [Plaintiff] is able to understand, remember, and carry out short, simple, routine, and repetitive tasks. She can perform work in which contact with the general public is not an essential element of any task; however, incidental and superficial contact is not precluded. [Plaintiff] is able to adapt to simple changes and can perform tasks with simple goals predetermined by the employer. 11 Tr. 20. 12 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 26. At 13 step five, the ALJ found that, considering Plaintiff’s age, education, work 14 experience, RFC, and testimony from the vocational expert, there were jobs that 15 existed in significant numbers in the national economy that Plaintiff could perform, 16 such as janitor-night cleaner, packager, electrical accessories assembler, and 17 buffing machine tender. Id. Therefore, the ALJ concluded Plaintiff was not under 18 a disability, as defined in the Social Security Act, from the date of the application 19 through the date of the decision. Tr. 27. 20 2 ORDER - 7 Case 1:19-cv-03057-MKD 1 ECF No. 18 filed 06/24/20 PageID.578 Page 8 of 41 On February 1, 2019, the Appeals Council denied review of the ALJ’s 2 decision, Tr. 1-5, making the ALJ’s decision the Commissioner’s final decision for 3 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her supplemental security income benefits under Title XVI of the Social Security 7 Act. Plaintiff raises the following issues for review: 8 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 9 2. Whether the ALJ properly evaluated the medical opinion evidence; 10 3. Whether the ALJ conducted a proper step-two; and 11 4. Whether the ALJ conducted a proper step-three analysis. 12 ECF No. 15 at 2. 13 14 15 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 16 discrediting her symptom claims. ECF No. 15 at 18-21. An ALJ engages in a two17 step analysis to determine whether to discount a claimant’s testimony regarding 18 subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must 19 determine whether there is objective medical evidence of an underlying 20 impairment which could reasonably be expected to produce the pain or other 2 ORDER - 8 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.579 Page 9 of 41 1 symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). “The 2 claimant is not required to show that [the claimant’s] impairment could reasonably 3 be expected to cause the severity of the symptom [the claimant] has alleged; [the 4 claimant] need only show that it could reasonably have caused some degree of the 5 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 6 Second, “[i]f the claimant meets the first test and there is no evidence of 7 malingering, the ALJ can only reject the claimant’s testimony about the severity of 8 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 9 rejection.” Ghanim v. Colvin, 763 F.3d1154, 1163 (9th Cir. 2014) (citations 10 omitted). General findings are insufficient; rather, the ALJ must identify what 11 symptom claims are being discounted and what evidence undermines these claims. 12 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas, 278 F.3d 13 at 958 (requiring the ALJ to sufficiently explain why it discounted claimant’s 14 symptom claims)). “The clear and convincing [evidence] standard is the most 15 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 16 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 17 924 (9th Cir. 2002)). 18 Factors to be considered in evaluating the intensity, persistence, and limiting 19 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 20 duration, frequency, and intensity of pain or other symptoms; 3) factors that 2 ORDER - 9 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.580 Page 10 of 41 1 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 2 side effects of any medication an individual takes or has taken to alleviate pain or 3 other symptoms; 5) treatment, other than medication, an individual receives or has 4 received for relief of pain or other symptoms; 6) any measures other than treatment 5 an individual uses or has used to relieve pain or other symptoms; and 7) any other 6 factors concerning an individual’s functional limitations and restrictions due to 7 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 8 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 9 individual’s record,” “to determine how symptoms limit ability to perform work10 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 11 The ALJ found that Plaintiff’s medically determinable impairments could 12 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 13 statements concerning the intensity, persistence, and limiting effects of her 14 symptoms were not entirely consistent with the evidence. Tr. 21. 15 1. Inconsistent Statements 16 The ALJ found Plaintiff’s allegations were inconsistent with her statements 17 to providers. Tr. 21-22 (citing Tr. 247, 274, 278, 280). In evaluating a claimant’s 18 symptom claims, an ALJ may consider the consistency of an individual’s own 19 statements made in connection with the disability-review process with any other 20 2 ORDER - 10 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.581 Page 11 of 41 1 existing statements or conduct under other circumstances. Smolen v. Chater, 80 2 F.3d 1273, 1284 (9th Cir. 1996). 3 The ALJ observed that Plaintiff denied experiencing psychiatric symptoms 4 or denied having symptoms of depression and anxiety and noted that Plaintiff only 5 began reporting significant symptoms of depression and anxiety to providers after 6 she applied for disability. Tr. 21-22. The first record cited by the ALJ is a visit for 7 rectal bleeding, in which Plaintiff denied psychiatric symptoms. Tr. 247. In the 8 next records, while Plaintiff denied depression and anxiety at the cited visits, she 9 reported her mother wanted her to re-engage in therapy and she was assessed with 10 anxiety. Tr. 274, 278, 280, 284. As discussed more fully below, the Court finds 11 the ALJ’s selective citation of the record as to Plaintiff’s mental health symptoms 12 is not supported by substantial evidence. 13 Plaintiff has alleged no improvement in her symptoms with medication, Tr. 14 57-58, which the ALJ found inconsistent with the evidence, Tr. 22. While Plaintiff 15 reported some improvement with Buspar, Tr. 371, 406, she stopped taking it and 16 had difficulties getting it, Tr. 367, 395. Plaintiff described the improvement on 17 Buspar as slightly decreasing her anxiety and irritability at one visit, Tr. 386, but 18 stated it was helping “okay”, Tr. 461, and was “still helpful”, Tr. 454, at other 19 visits. Plaintiff reported Remeron helped only “a bit.” Tr. 433. The record as a 20 whole does not demonstrate that Plaintiff stated her symptoms were ever more than 2 ORDER - 11 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.582 Page 12 of 41 1 minimally improved by medication. As such, this reasoning is not a clear and 2 convincing reason to reject Plaintiff’s statements. 3 2. Inconsistent Objective Evidence 4 The ALJ found Plaintiff’s allegations inconsistent with the objective 5 evidence, including minimal observations of psychiatric difficulties and Plaintiff’s 6 performance on mental status exams (MSEs). Tr. 22-23. An ALJ may not 7 discredit a claimant’s symptom testimony and deny benefits solely because the 8 degree of the symptoms alleged is not supported by objective medical evidence. 9 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 10 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 11 1989); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). However, the 12 objective medical evidence is a relevant factor, along with the medical source’s 13 information about the claimant’s pain or other symptoms, in determining the 14 severity of a claimant’s symptoms and their disabling effects. Rollins, 261 F.3d at 15 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). MSEs are objective measures of 16 an individual’s mental health. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 17 2017). 18 Here, the ALJ found there were minimal observations of psychological 19 difficulties. Tr. 22 (citing Tr. 247 (no psychiatric symptoms reported at a visit for 20 rectal bleeding); Tr. 275, 279, 281, 285, 313 (normal MSEs at hormone therapy 2 ORDER - 12 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.583 Page 13 of 41 1 appointments); Tr. 289 (flat affect, symptoms consistent with major depression); 2 Tr. 304 (increased psychomotor activity, flat affect, depressed, uneasy, 3 hallucinations per history, soft speech); Tr. 332 (flat affect, depressed, uneasy, fair 4 attention); Tr. 338 (flat affect and shy); Tr. 348 (depressed mood); Tr. 368 (okay 5 mood with congruent, dysphoric affect); Tr. 381 (appeared somewhat anxious, did 6 not make much eye contact); Tr. 382 (appeared anxious, fidgeting); Tr. 384 7 (appeared anxious, made very limited eye contact); Tr. 392 (quiet and tearful for 8 much of the appointment, cried silently at times); Tr. 394 (appeared anxious, had a 9 difficult time making eye contact, picked at her pants); Tr. 396 (mood “not as 10 good”, affect congruent and dysphoric, trace anxious); Tr. 408 (better mood, 11 congruent, euthymic affect, trace anxious); Tr. 413 (better mood, congruent, 12 neutral affect); Tr. 456 (“not so good” mood, depressed/restricted affect, poor eye 13 contact, fair to poor insight/judgment); Tr. 460 (moderate mood, some eye 14 contact); Tr. 462 (guarded but cooperative, “okay” mood, neutral affect, 15 insight/judgment fair, improving)). 16 However, the ALJ’s discussion of the mental health medical evidence 17 largely omits significant mental health symptoms. The ALJ’s discussion of the 18 cited records only discusses “minimal” symptoms, and some symptoms such as 19 flat, anxious, or depressed affect. Tr. 21. The ALJ stated the absence of Plaintiff 20 presenting with “serious psychiatric symptoms” is inconsistent with Plaintiff’s 2 ORDER - 13 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.584 Page 14 of 41 1 allegations. Tr. 22. Yet, the cited records include numerous abnormal findings not 2 discussed by the ALJ and notes regarding serious psychiatric symptoms including 3 hallucinations, Tr. 304, 324, suicidal ideation, Tr. 303, 319, 331, and self-harm, Tr. 4 358, 384. Plaintiff’s mother reported Plaintiff had increased mood lability. Tr. 5 284. Plaintiff was observed as having poor eye contact and allowing her mother to 6 answer questions for her. Tr. 338. Plaintiff had only fair hygiene, was viewed as 7 haughty and sarcastic, fidgety, winced when her mother touched her, had only fair 8 concentration, and poor eye contact. Tr. 348. Plaintiff reported engaging in 9 multiple forms of self-harm at several appointments, which the ALJ did not 10 address anywhere in the decision. Tr. 382, 384, 392, 460. Plaintiff engaged in 11 self-harm by pulling her hair out, resulting in thinning hair Plaintiff showed her 12 provider, followed with Plaintiff shaving her hair off. Tr. 384, 392. Plaintiff also 13 has a history of a suicide attempt, inpatient hospitalization and ongoing suicidal 14 ideation, none of which were addressed by the ALJ. Tr. 303, 319, 331, 345, 351. 15 The ALJ cited to multiple MSEs with normal to mildly abnormal findings, 16 but largely ignored the abnormal observations discussed above, such as poor eye 17 contact, fair concentration and hygiene, and abnormal behavior when engaging in 18 conversations during an appointment. Tr. 22-23. The ALJ found Dr. Ruddell and 19 Dr. Cline’s MSEs “unpersuasive,” though both MSEs demonstrated significant 20 impairments. Tr. 23 (citing Tr. 254, 324). Dr. Ruddell found Plaintiff was 2 ORDER - 14 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.585 Page 15 of 41 1 anxious, depressed, restless, labile/tearful, with poor voice quality, impaired recent 2 and immediate memory, impaired executive functioning and problem solving, and 3 inadequate eye contact. Tr. 254. Dr. Cline noted Plaintiff had abnormal abstract 4 thought, insight, judgment, perception and thoughts. Tr. 324. 5 The ALJ must consider all of the relevant evidence in the record and may 6 not point to only those portions of the records that bolster her findings. See, e.g., 7 Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an 8 ALJ cannot selectively rely on some entries in plaintiff’s records while ignoring 9 others). In citing portions of the record that show milder examination findings 10 while the longitudinal record shows more mixed results, and not analyzing 11 significant psychiatric symptoms, the ALJ’s characterization of the record is not 12 supported by substantial evidence. 13 3. Activities of Daily Living 14 The ALJ found Plaintiff’s activities inconsistent with her allegations. Tr. 23. 15 The ALJ may consider a claimant’s activities that undermine reported symptoms. 16 Rollins, 261 F.3d at 857. If a claimant can spend a substantial part of the day 17 engaged in pursuits involving the performance of exertional or non-exertional 18 functions, the ALJ may find these activities inconsistent with the reported 19 disabling symptoms. Fair, 885 F.2d at 603; Molina, 674 F.3d at 1113. “While a 20 claimant need not vegetate in a dark room in order to be eligible for benefits, the 2 ORDER - 15 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.586 Page 16 of 41 1 ALJ may discount a claimant’s symptom claims when the claimant reports 2 participation in everyday activities indicating capacities that are transferable to a 3 work setting” or when activities “contradict claims of a totally debilitating 4 impairment.” Molina, 674 F.3d at 1112-13. 5 The ALJ noted Plaintiff engaged in social activities, worked part-time in a 6 position where she interacted with others for two months, exercised, went out 7 alone, and obtained her driver’s license. Tr. 23. The ALJ found these activities 8 were inconsistent with Plaintiff’s reported difficulties socializing and going out 9 alone. Id. Plaintiff reported some online and in person socializing with friends 10 and family but reported nervousness and difficulty socializing and getting out of 11 the house. Tr. 421. Plaintiff particularly struggled with crowds. Tr. 433. Plaintiff 12 attempted to work part-time for less than two months but was overwhelmed with 13 the work and had increased anxiety when she had to work. Tr. 454. Plaintiff’s 14 activities are not clearly inconsistent with her allegations of disabling 15 psychological symptoms, nor is Plaintiff’s performance of the activities indicative 16 that her performance would be successfully transferable to a work setting. As 17 such, this was not a clear and convincing reason to reject Plaintiff’s statements. 18 4. Lack of Treatment 19 The ALJ found Plaintiff’s allegations inconsistent with her minimal 20 treatment. Tr. 23-24. Unexplained, or inadequately explained, failure to seek 2 ORDER - 16 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.587 Page 17 of 41 1 treatment or follow a prescribed course of treatment may serve as a basis to 2 discount the claimant’s reported symptoms, unless there is a good reason for the 3 failure. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). When there is no 4 evidence suggesting that the failure to seek or participate in treatment is 5 attributable to a mental impairment rather than a personal preference, it is 6 reasonable for the ALJ to conclude that the level or frequency of treatment is 7 inconsistent with the alleged severity of complaints. Molina, 674 F.3d at 1113-14. 8 But when the evidence suggests lack of mental health treatment is partly due to a 9 claimant’s mental health condition, it may be inappropriate to consider a 10 claimant’s lack of mental health treatment when evaluating the claimant’s failure 11 to participate in treatment. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). 12 Here, the ALJ considered Plaintiff’s gaps in treatment, including missed 13 appointments, and periods where Plaintiff did not take her psychiatric medication 14 as prescribed. Tr. 22-23. The ALJ found Plaintiff did not offer any reason to 15 justify the inconsistency in her treatment. Tr. 23. However, the ALJ failed to 16 consider the barriers Plaintiff’s mental health conditions caused in her accessing 17 and continuing treatment. Dr. Cline opined plaintiff’s personality disorder may 18 have played a role in her limited progress in therapy. Tr. 323. Plaintiff reported 19 paranoia leads her to feeling like stopping her medications. Tr. 345. Plaintiff 20 reported forgetting appointments, Tr. 363, having trust issues regarding counselors, 2 ORDER - 17 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.588 Page 18 of 41 1 Tr. 215, feeling anxious about having appointments too frequently, Tr. 375, and 2 missing an appointment due to having been engaging in self-harm, id. Plaintiff 3 also reported difficulty with accessing transportation for appointments. Tr. 384. 4 As the ALJ did not consider and address Plaintiff’s reasons for having inconsistent 5 treatment, this was not a clear and convincing reason to reject Plaintiff’s 6 statements. 7 Because the ALJ failed to provide clear and convincing reason supported by 8 substantial evidence to discredit Plaintiff’s symptom testimony, the ALJ is 9 instructed to reconsider Plaintiff’s symptom testimony on remand and incorporate 10 the reported limitations into the RFC or give clear and convincing reasons to reject 11 the statements. 12 13 B. Medical Opinion Evidence Plaintiff argues that the ALJ improperly weighed the medical opinions of 14 Alysa Ruddell, Ph.D., Daniel Neims, Psy.D., and R.A. Cline, Psy.D. ECF No. 15 15 at 7-17. 16 There are three types of physicians: “(1) those who treat the claimant 17 (treating physicians); (2) those who examine but do not treat the claimant 18 (examining physicians); and (3) those who neither examine nor treat the claimant 19 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 20 Holohan, 246 F.3d at 1201-02 (citations omitted). Generally, a treating 2 ORDER - 18 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.589 Page 19 of 41 1 physician’s opinion carries more weight than an examining physician’s, and an 2 examining physician’s opinion carries more weight than a reviewing physician’s. 3 Id. at 1202. “In addition, the regulations give more weight to opinions that are 4 explained than to those that are not, and to the opinions of specialists concerning 5 matters relating to their specialty over that of nonspecialists.” Id. (citations 6 omitted). 7 If a treating or examining physician’s opinion is uncontradicted, the ALJ 8 may reject it only by offering “clear and convincing reasons that are supported by 9 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 10 “However, the ALJ need not accept the opinion of any physician, including a 11 treating physician, if that opinion is brief, conclusory and inadequately supported 12 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 14 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 15 may only reject it by providing specific and legitimate reasons that are supported 16 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83017 31). The opinion of a nonexamining physician may serve as substantial evidence if 18 it is supported by other independent evidence in the record. Andrews v. Shalala, 19 53 F.3d 1035, 1041 (9th Cir. 1995). 20 2 ORDER - 19 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.590 Page 20 of 41 1 1. Dr. Ruddell 2 Dr. Ruddell performed a psychological examination on November 10, 2014 3 and diagnosed Plaintiff with anxiety disorder, major depressive disorder, gender 4 identity disorder, and bipolar disorder. Tr. 251-55. Dr. Ruddell opined that 5 Plaintiff had marked symptoms of anhedonia, anxiety and isolation, and severe 6 symptoms of sleep disturbance. Tr. 252. Dr. Ruddell further opined Plaintiff had 7 marked work-related limitations in her abilities to learn new tasks, adapt to 8 changes, communicate/perform effectively, set realistic goals and planning 9 independently, and maintain appropriate behavior; and a severe limitation in her 10 ability to complete a workday/week without interruptions from her symptoms. Tr. 11 253. 12 The ALJ gave Dr. Ruddell’s opinion little weight. Tr. 24-25. As Dr. 13 Ruddell’s opinion was contradicted by the opinions of James Bailey, Ph.D., Tr. 7314 75, and Dan Donahue, Ph.D., Tr.85-87, the ALJ was required to identify specific 15 and legitimate reasons to reject the opinion. See Bayliss, 427 F.3d at 1216. 16 First, the ALJ found the opinion is internally inconsistent. Tr. 24. Relevant 17 factors to evaluate any medical opinion include the amount of relevant evidence 18 that supports the opinion, the quality of the explanation provided in the opinion, 19 and the consistency of the medical opinion with the record as a whole. 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. 2 ORDER - 20 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.591 Page 21 of 41 1 Moreover, a physician’s opinion may be rejected if it is unsupported by the 2 physician’s treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 3 2003). 4 Here, the ALJ cited to one alleged inconsistency within the opinion. Tr. 24. 5 The ALJ found Plaintiff’s ability to perform a three-step command inconsistent 6 with the opinion Plaintiff would have difficulty with learning new tasks. Id. 7 However, while Dr. Ruddell did not indicate Plaintiff had any difficulties with 8 concentration, Plaintiff had an impaired memory. Tr. 254. Plaintiff’s ability to 9 recall three words after five minutes and at the end of the interview was impaired, 10 as was her ability to recall a series of digits. Id. Without a more meaningful 11 analysis by the ALJ, the Court is unable to determine if the ALJ’s decision to reject 12 Dr. Ruddell’s opinion on this basis is legitimate, specific, and supported by 13 substantial evidence. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 14 2015) (demanding that the ALJ set forth their reasoning in a way that allows for 15 meaningful review); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 16 Second, the ALJ reasoned the opinion consisted of checked boxes with no 17 explanation. Tr. 24. The fact that an opinion is rendered, in part, in a check box 18 form is not reason alone to reject the opinion. See Trevizo v. Berryhill, 871 F.3d 19 664, 677 n.4 (9th Cir. 2017). However, the Social Security regulations “give more 20 weight to opinions that are explained than to those that are not.” Holohan, 246 2 ORDER - 21 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.592 Page 22 of 41 1 F.3d at 1202. “[T]he ALJ need not accept the opinion of any physician, including 2 a treating physician, if that opinion is brief, conclusory and inadequately supported 3 by clinical findings.” Bray, 554 at 1228. 4 While a portion of Dr. Ruddell’s opinion consists of checkboxes, the 5 checkboxes are accompanied by a clinical interview, mental status examination, 6 assessment, clinical findings, and notes explaining how the symptoms impact 7 Plaintiff’s functioning. Tr. 251-55. Dr. Ruddell opined Plaintiff’s anhedonia 8 causes a marked limitation in her ability to concentrate, attend and focus on work9 related tasks. Tr. 252. Dr. Ruddell opined Plaintiff’s anger causes moderate 10 limitations due to causing conflict on the job, a hostile work environment and 11 absenteeism. Id. She opined Plaintiff’s anxiety causes marked limitations in 12 Plaintiff’s ability to concentrate on tasks and Plaintiff’s isolation causes marked 13 limitations due to issues including absenteeism. Id. Dr. Ruddell also opined 14 Plaintiff’s sleep disturbance causes severe limitations in concentration, and causes 15 difficulties with alertness, fostering accidents and careless mistakes. Id. The 16 ALJ’s finding that Dr. Ruddell’s opinion consisted of checkboxes and was not 17 explained is not supported by substantial evidence. 18 Third, the ALJ found Dr. Ruddell did not review any treatment records and 19 thus based her opinion on Plaintiff’s onetime examination. Tr. 25. The extent to 20 which a medical source is “familiar with the other information in [the claimant’s] 2 ORDER - 22 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.593 Page 23 of 41 1 case record” is relevant in assessing the weight of that source’s medical opinion. 2 See 20 C.F.R. §416.927(c)(6). Additionally, the number of visits a claimant had 3 with a particular provider is a relevant factor in assigning weight to an opinion. 20 4 C.F.R. § 416.927(c). However, the fact that an evaluator examined Plaintiff one 5 time is not a legally sufficient basis for rejecting the opinion. The regulations 6 direct that all opinions, including the opinions of examining providers, should be 7 considered. 20 C.F.R. § 416.927(b), (c). The Court notes that while it is accurate 8 that Dr. Ruddell did not review any records when forming her opinion, the ALJ’s 9 rationale in rejecting the opinion as based on a onetime examination is inconsistent 10 with the ALJ giving great weight to the opinions of Dr. Bailey and Dr. Donahue, 11 whom did not examine nor treat Plaintiff. Tr. 24-25, 251. As such, this was not a 12 specific and legitimate reason to reject Dr. Ruddell’s opinion. 13 Fourth, the ALJ further noted Plaintiff’s statements and presentation during 14 Dr. Ruddell’s examination were inconsistent Plaintiff’s treatment records. Tr. 24. 15 Relevant factors when evaluating a medical opinion include the amount of relevant 16 evidence that supports the opinion and the consistency of the medical opinion with 17 the record as a whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Here, 18 the ALJ cited to records in support of the finding that Plaintiff reported information 19 to Dr. Ruddell that was inconsistent with what she reported to other providers. Tr. 20 24-25 (citing Tr. 252, 254, 269, 280, 284). As discussed supra, the ALJ erred in 2 ORDER - 23 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.594 Page 24 of 41 1 her consideration of Plaintiff’s symptom complaints. In her analysis of the 2 consistency of Plaintiff’s reports to Dr. Ruddell and the consistency with other 3 medical records, the ALJ again did not consider all of the relevant evidence. This 4 reason is not supported by substantial evidence in the record. 5 Fifth, the ALJ reasoned Dr. Ruddell’s opinion was inconsistent with the 6 record as a whole, including minimal observations of psychiatric symptoms, 7 Plaintiff’s mental status examination performance, and Plaintiff’s activities. Tr. 8 25. An ALJ may discredit physicians’ opinions that are unsupported by the record 9 as a whole. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 10 2004). However, an ALJ must consider all of the relevant evidence in the record 11 and may not point to only those portions of the records that bolster her findings. 12 See, e.g., Holohan, 246 F.3d at 1207-08 (holding that an ALJ cannot selectively 13 rely on some entries in plaintiff’s records while ignoring others). The ALJ is not 14 permitted to “cherry pick” from mixed evidence to support a denial of benefits. 15 Garrison, 759 F.3d at 1017 n.23. 16 As discussed supra, the ALJ cited portions of the record to support 17 individual points while ignoring the rest of the abnormal findings within the record 18 (e.g., citing to a record where Plaintiff did not report hallucinations to support the 19 contention Plaintiff did not report hallucinations to others, while ignoring the 20 references in the same record to Plaintiff’s reports of self-harm, irritability, anger 2 ORDER - 24 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.595 Page 25 of 41 1 and panic attacks). See Tr. 25 (citing Tr. 269). The longitudinal record shows 2 Plaintiff had generally abnormal mental status examinations and observations of 3 psychological symptoms. Tr. 254, 323, 348, 368-69, 386-87, 396-97, 423. 4 While the ALJ offered additional reasons to reject Dr. Ruddell’s opinion, the 5 Court finds the ALJ erred in her consideration of the opinion given the multiple 6 errors addressed supra. The ALJ found Plaintiff has only moderate limitations and 7 is capable of sustaining a full-time workweek, Tr. 19-20, contrary to Dr. Ruddell’s 8 opinion, Tr. 253. As such, the ALJ’s rejection of Dr. Ruddell’s opinion was not 9 harmless. See Molina, 674 F.3d at 1111. Defendant argues the error was harmless 10 as Dr. Ruddell’s opinion was rendered prior to the alleged onset date. ECF No. 16 11 at 14. However, the opinion was given less than four months prior to the amended 12 onset date, and the ALJ did not address the timing of the opinion; as such, the 13 Court will not consider this post-hoc rationalization. See Pinto v. Massanari, 249 14 F.3d 840, 847-48 (9th Cir. 2001). 15 2. Dr. Neims 16 Dr. Neims reviewed Dr. Ruddell’s opinion and found the evaluation 17 supported Dr. Ruddell’s opinion regarding Plaintiff’s limitations and the duration 18 of impairment. Tr. 446-47. Dr. Neims found the January 1, 2014 alleged onset 19 date was not supported by the evidence, but the November 10, 2014 date was more 20 appropriate, given the evidence from the evaluation on that date. Tr. 447. 2 ORDER - 25 Case 1:19-cv-03057-MKD 1 ECF No. 18 filed 06/24/20 PageID.596 Page 26 of 41 The ALJ gave Dr. Neims’ opinion little weight. Tr. 25. As Dr. Neims’ 2 opinion was based exclusively on Dr. Ruddell’s evaluation and opinion, the ALJ 3 rejected the opinion for the same reasons she rejected Dr. Ruddell’s opinion. Id. 4 As the ALJ’s rejection of Dr. Ruddell’s opinion was erroneous, and the ALJ gave 5 no additional analysis in rejecting Dr. Neims’ opinion, the Court is unable to 6 determine if the ALJ’s decision to reject Dr. Neims’ opinion is legitimate, specific, 7 and supported by substantial evidence. See Brown-Hunter, 806 F.3d at 492 8 (demanding that the ALJ set forth its reasoning in a way that allows for meaningful 9 review); Embrey, 849 F.2d at 421-22. This opinion must be reconsidered on 10 remand. 11 3. Dr. Cline 12 Dr. Cline examined Plaintiff on September 27, 2016 and diagnosed Plaintiff 13 with dysthymic disorder, major depressive disorder, PTSD, generalized anxiety 14 disorder, a provisional diagnosis of borderline personality disorder, and marijuana 15 use disorder, and provided an opinion on Plaintiff’s functioning. Tr. 319-324. Dr. 16 Cline opined Plaintiff had marked limitations in performing work within a 17 schedule and maintaining attendance, communicating and performing work 18 effectively and completing a normal workday/workweek. Tr. 322. 19 The ALJ gave Dr. Cline’s opinion little weight. Tr. 25. As the examining 20 source’s opinion was contradicted by the opinions of James Bailey, Ph.D., Tr. 732 ORDER - 26 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.597 Page 27 of 41 1 75, and Dan Donahue, Ph.D., Tr.85-87, the ALJ was required to give specific and 2 legitimate reasons to reject the opinion. See Bayliss, 427 F.3d at 1216. 3 First, the ALJ reasoned Dr. Cline based her opinion on Plaintiff’s self-report, 4 which the ALJ found inconsistent with the other evidence. Tr. 25. An ALJ may 5 consider the consistency of an individual’s own statements made in connection 6 with the disability-review process with any other existing statements or conduct. 7 Smolen, 80 F.3d at 1284. As discussed supra, the ALJ erred in her consideration of 8 Plaintiff’s symptom complaints. 9 Second, the ALJ reasoned Dr. Cline’s opinion was temporary, as she stated 10 the limitations would last between nine and 12 months. Tr. 25. Temporary 11 limitations are not enough to meet the durational requirement for a finding of 12 disability. 20 C.F.R. § 416.905(a) (requiring a claimant’s impairment to be 13 expected to last for a continuous period of not less than twelve months); 42 U.S.C. 14 § 423(d)(1)(A) (same); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 15 1165 (9th Cir. 2008) (affirming the ALJ’s finding that treating physicians' short16 term excuse from work was not indicative of “claimant’s long-term functioning”). 17 Defendant concedes that Dr. Cline’s opinion states that the limitations would last 18 up to 12 months, which meets the durational requirements. ECF No. 16 at 17. As 19 such, this was not a legitimate reason to reject Dr. Cline’s opinion. Defendant 20 argues the error was harmless as the ALJ gave other specific and legitimate reasons 2 ORDER - 27 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.598 Page 28 of 41 1 for rejecting Dr. Cline’s opinion, however, as discussed herein, the other reasons 2 were also erroneous and as such this error was harmful. 3 Next, the ALJ found Dr. Cline’s opinion is inconsistent with the record as a 4 whole, including minimal observations of psychiatric symptoms, Plaintiff’s mental 5 status examinations and Plaintiff’s activities. Tr. 25. As discussed supra, the 6 ALJ’s analysis of the record is incomplete and not supported by substantial 7 evidence. Although the ALJ identified additional reasons for rejecting Dr. Cline’s 8 opinion, the Court finds the ALJ erred in her consideration of Dr. Cline’s opinion 9 for the reasons discussed herein. 10 In summary, the ALJ erred by discounting the opinions of Dr. Ruddell, Dr. 11 Neims, and Dr. Cline without providing specific and legitimate reasons for 12 rejecting the opinions. These errors were harmful, because if the opinions were 13 credited, the ALJ would be required to add the supported limitations to the RFC 14 and reassess whether Plaintiff is capable of performing sustained gainful work. 15 See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). The ALJ is 16 instructed to reconsider the medical opinion evidence on remand and incorporate 17 the limitations into the RFC or give specific and legitimate reasons, supported by 18 substantial evidence, to reject the opinions. 19 20 2 ORDER - 28 Case 1:19-cv-03057-MKD 1 2 ECF No. 18 filed 06/24/20 PageID.599 Page 29 of 41 C. Step-Two Analysis Plaintiff contends the ALJ erred at step two by failing to identify her 3 digestive issues and borderline personality disorder as severe impairments. ECF 4 No. 15 at 3-7. At step two of the sequential process, the ALJ must determine 5 whether claimant suffers from a “severe” impairment, i.e., one that significantly 6 limits her physical or mental ability to do basic work activities. 20 C.F.R. § 7 416.920(c). 8 To establish a severe impairment, the claimant must first prove the existence 9 of a physical or mental impairment by providing medical evidence consisting of 10 signs, symptoms, and laboratory findings; the claimant’s own statement of 11 symptoms alone will not suffice. 20 C.F.R. § 416.921. In other words, the 12 claimant must establish the existence of the physical or mental impairment through 13 objective medical evidence (i.e., signs, laboratory findings, or both) from an 14 acceptable medical source; the medical impairment cannot be established by the 15 claimant’s statement of symptoms, a diagnosis, or a medical opinion. Id. 16 An impairment may be found to be not severe when “medical evidence 17 establishes only a slight abnormality or a combination of slight abnormalities 18 which would have no more than a minimal effect on an individual’s ability to 19 work….” Social Security Ruling (SSR) 85-28 at *3. Similarly, an impairment is 20 not severe if it does not significantly limit a claimant’s physical or mental ability to 2 ORDER - 29 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.600 Page 30 of 41 1 do basic work activities; which include walking, standing, sitting, lifting, pushing, 2 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 3 understanding, carrying out and remembering simple instructions; responding 4 appropriately to supervision, coworkers and usual work situations; and dealing 5 with changes in a routine work setting. 20 C.F.R. § 416.922(a); SSR 85-28.3 6 Step two is “a de minimus screening device [used] to dispose of groundless 7 claims.” Smolen, 80 F.3d at 1290. “Thus, applying our normal standard of review 8 to the requirements of step two, [the Court] must determine whether the ALJ had 9 substantial evidence to find that the medical evidence clearly established that 10 [Plaintiff] did not have a medically severe impairment or combination of 11 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 12 At step two, the ALJ considered the record concerning the challenged 13 impairments, but concluded these conditions were non-severe as they did not more 14 than minimally impact Plaintiff’s ability to perform basic work activities or were 15 not medically determinable. Tr. 18. 16 17 18 3 19 20 2 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). ORDER - 30 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.601 Page 31 of 41 1 1. Digestive issues 2 The ALJ found that the record did not support a finding that Plaintiff’s 3 anorexia is a medically determinable impairment. Id. Additionally, the ALJ 4 determined that Plaintiff’s other physical symptoms/conditions did not last for a 5 continuous period of twelve months or did not cause significant limitations in 6 functioning. Id. 7 The records demonstrate that Plaintiff experienced digestive symptoms 8 during the relevant adjudicative period and that her BMI decreased over time. In 9 2015, Plaintiff weighed 137.5 pounds, without a calculated BMI. Tr. 314. By 10 October 2016, her weight dropped to 129 pounds. Tr. 412. In April 2017, her 11 BMI was 17.05, Tr. 328, and in October 2017, Plaintiff’s BMI was 16.78, Tr. 449. 12 In November 2014, Plaintiff reported constipation for “quite a while.” Tr. 13 251. In February 2015, Plaintiff and her mother reported Plaintiff will not eat for 14 days and will then overeat to the point of feeling ill. Tr. 264. In June 2015, again 15 Plaintiff reported she goes days without eating. Tr. 207. In May 2016, Plaintiff 16 reported she had experienced nausea for several months, and Dr. Lindgren assessed 17 her with poor appetite and anorexia. Tr. 330-32. Dr. Lindgren coded the anorexia 18 assessment with an international classification of diseases (ICD) label of “R63”, 19 indicating anorexia meaning loss of appetite and not a diagnosis of anorexia 20 nervosa. See ICD-10-CM, available at: 2 ORDER - 31 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.602 Page 32 of 41 1 https://www.icd10data.com/ICD10CM/Codes/F01-F99/F50-F59/F50-#F50.0 (last 2 accessed June 24, 2020). Dr. Lindgren observed Plaintiff appeared under3 nourished. Tr. 331. 4 In September 2016, Plaintiff reported she had been experiencing a 5 “nonexistent” appetite for months. Tr. 319. In July 2017, Plaintiff reported her 6 diarrhea had been more frequent. Tr. 368. In May 2017, Plaintiff complained of 7 diarrhea. Tr. 325-26. In October 2017, Plaintiff reported right upper quadrant 8 pain, nausea and diarrhea, and reported the symptoms were worse with eating. Tr. 9 448-49. Plaintiff’s abdomen was tender to palpation and Dr. Lindgren diagnosed 10 right upper quadrant pain. Tr. 449. Dr. Lindgren suspected cholecystitis and 11 recommended an ultrasound but there are no follow-up records. Id. 12 At the April 2018 hearing, Plaintiff was not asked about any physical 13 limitations nor her current weight. Tr. 49-59. While Plaintiff’s function report 14 focused on mental health symptoms, she reported lacking strength and energy to 15 complete tasks. Tr. 168-71. She also reported only being able to walk half a mile 16 before needing to rest for 10 minutes. Tr. 173. As the case is being remanded to 17 reconsider Plaintiff’s symptom complaints and the medical opinion evidence, the 18 ALJ is also instructed to perform the five-step analysis anew, including 19 reconsidering if Plaintiff has a severe physical impairment at step two. 20 2 ORDER - 32 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.603 Page 33 of 41 1 2. Personality disorder 2 The ALJ found Plaintiff’s major depressive disorder, gender identity 3 disorder, generalized anxiety disorder, posttraumatic stress disorder and dysthymic 4 disorder to be severe impairments. Tr. 17. The ALJ stated that there were other 5 psychiatric diagnoses in the record, and the “decision addresses all the limitations 6 that the claimant has alleged or has been opined, no matter the diagnostic label.” 7 Tr. 18. The ALJ did not specifically address the borderline personality disorder 8 diagnosis. When an ALJ fails to properly consider a diagnosis and that lack of 9 consideration leads to the ALJ crafting an RFC that is incomplete, flawed and not 10 supported by substantial evidence in the record, the ALJ has erred at step two. See 11 Hill, 698 F.3d at 1161. 12 Dr. Cline found Plaintiff met the diagnostic criteria for borderline 13 personality disorder and gave a provisional diagnosis of borderline personality 14 disorder in October 2016. Tr. 319-20, 323. Dr. Robinson diagnosed Plaintiff with 15 borderline personality disorder in July 2017, Tr. 369, after counselor Ms. Ellis 16 found Plaintiff met the criteria for borderline personality disorder and staffed her 17 case with a doctor, Tr. 392. At the appointment with Ms. Ellis, Plaintiff reported 18 feeling like an “angry arrogant child” and reported punching herself in the face and 19 pulling her own hair out on a monthly basis. Id. Plaintiff cried while showing Ms. 20 Ellis several bald spots. Id. Ms. Ellis found Plaintiff met eight of the nine 2 ORDER - 33 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.604 Page 34 of 41 1 borderline personality disorder criteria, and only five are required for a diagnosis. 2 Id. 3 The diagnostic criteria for borderline personality disorder include intense, 4 inappropriate or uncontrollable anger, self-harming behavior/thoughts, unstable 5 relationships and impulsive behaviors. DIAGNOSTIC AND STATISTICAL MANUAL OF 6 MENTAL DISORDERS, 5th Ed. at 664 (2013). Treatment of borderline personality 7 disorder is often complicated “by the fact that the characteristics that define a 8 personality disorder may not be considered problematic by the individual.” Id. at 9 647. 10 Throughout the record, Plaintiff demonstrated abnormal social behavior at 11 appointments. She spent some appointments tearful through the appointment. Tr. 12 392. She was observed as disheveled, withdrawn, depressed and anxious, with 13 monotone one-word answers. Tr. 328. She has been viewed as having a flat 14 affect, being shy with poor eye contact. Tr. 338. At an exam, Plaintiff was 15 anxious and depressed, with poor voice quality, she avoided eye contact, played 16 with her phone case and broke into tears at the end of the exam. Tr. 254. At 17 another exam, Plaintiff had quiet speech, poor eye contact, flattened and 18 withdrawn affect, and multiple abnormalities on exam. Tr. 324. She has 19 repeatedly reported minimal social activities and difficulty interacting with others, 20 2 ORDER - 34 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.605 Page 35 of 41 1 Tr. 58, 171, 252, 319, 411, 421, though she reported medication made her a “little” 2 more comfortable socially, Tr. 406. 3 Plaintiff has also engaged in self-injurious behavior and reported thoughts of 4 suicide and self-harm. Plaintiff reported recent cutting in 2015, 2016, 2017 and 5 2018. Tr. 263, 324, 345, 395, 400, 454, 460. She has also reported punching 6 herself and pulling out her hair. Tr. 392, 460. She has reported thoughts of self7 harm and suicidal ideation in 2015, 2016 and 2017. Tr. 206, 264, 324, 345, 351, 8 358, 364, 411, 438, 460. 9 Plaintiff argues that the ALJ failed to consider the unique aspects of 10 Plaintiff’s personality disorder, including her difficulty maintaining stable 11 relationships, her impulsive behavior and self-harm. ECF No. 15 at 6-7. As 12 the case is being remanded to reconsider the medical opinion evidence and 13 Plaintiff’s symptom claims, and Plaintiff has presented evidence of her 14 borderline personality disorder, the ALJ is instructed to reconsider whether 15 Plaintiff’s personality disorder is a severe impairment, and whether the 16 impairment causes any additional limitations that must be accounted for in 17 the RFC. 18 19 D. Step-Three Analysis Plaintiff contends that the ALJ erred by finding that Plaintiff’s digestive 20 issues did not meet or equal Listing 5.08. ECF No. 15 at 5-6. At step three, the 2 ORDER - 35 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.606 Page 36 of 41 1 ALJ must determine if a claimant’s impairments meet or equal a listed impairment. 2 20 C.F.R. § 416.920(a)(4)(iii). The Listing of Impairments “describes each of the 3 major body systems impairments [which are considered] severe enough to prevent 4 an individual from doing any gainful activity, regardless of his or her age, 5 education or work experience.” 20 C.F.R. § 416.925. “Listed impairments are 6 purposefully set at a high level of severity because ‘the listings were designed to 7 operate as a presumption of disability that makes further inquiry unnecessary.’ ” 8 Kennedy v. Colvin, 758 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 9 493 U.S. 521, 532 (1990)). “Listed impairments set such strict standards because 10 they automatically end the five-step inquiry, before residual functional capacity is 11 even considered.” Kennedy, 758 F.3d at 1176. If a claimant meets the listed 12 criteria for disability, he will be found to be disabled. 20 C.F.R. § 13 416.920(a)(4)(iii). 14 “To meet a listed impairment, a claimant must establish that he or she meets 15 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 16 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 416.925(d). “To equal a 17 listed impairment, a claimant must establish symptoms, signs and laboratory 18 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 19 listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 20 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 416.926(a). “If a claimant suffers from 2 ORDER - 36 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.607 Page 37 of 41 1 multiple impairments and none of them individually meets or equals a listed 2 impairment, the collective symptoms, signs and laboratory findings of all of the 3 claimant’s impairments will be evaluated to determine whether they meet or equal 4 the characteristics of any relevant listed impairment.” Tackett, 180 F.3d at 1099. 5 However, “ ‘[m]edical equivalence must be based on medical findings,” and “[a] 6 generalized assertion of functional problems is not enough to establish disability at 7 step three.’ ” Id. at 1100 (quoting 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 8 416.926(a). 9 The claimant bears the burden of establishing his impairment (or 10 combination of impairments) meets or equals the criteria of a listed impairments. 11 Burch, 400 F.3d at683. “An adjudicator’s articulation of the reason(s) why the 12 individual is or is not disabled at a later step in the sequential evaluation process 13 will provide rationale that is sufficient for a subsequent reviewer or court to 14 determine the basis for the finding about medical equivalence at step 3.” Social 15 Security Ruling (SSR) 17-2P, 2017 WL 3928306, at *4 (effective March 27, 16 2017). 17 Here, the ALJ found that Plaintiff’s impairments and combinations of 18 impairments did not meet or equal any listings. Tr. 18-20. The ALJ considered 19 listings 12.04, 12.06 and 12.08 but did not consider any other listings including 20 Listing 5.08. Tr. 19. Listing 5.08 is met when a Plaintiff demonstrates “weight 2 ORDER - 37 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.608 Page 38 of 41 1 loss due to any digestive disorder despite continuing treatment as prescribed, with 2 BMI of less than 17.50 calculated on at least two evaluations at least 60 days apart 3 within a consecutive 6-month period.” 20 C.F.R. Part 404, Subpart P, Appendix 1. 4 A review of the evidence shows that Plaintiff’s BMI was below 17.50 at 5 least sixty days apart and within a six-month period. On April 26, 2017, her BMI 6 was 17.05, Tr. 328, and on October 6, 2017, her BMI was 16.78, Tr. 449. While 7 Plaintiff’s BMI was previously higher, there is at least a sixth-month period where 8 Plaintiff maintained a BMI under 17.5. See, e.g., Tr. 331 (BMI 18.59). 9 As the case is being remanded to reconsider the medical opinion evidence 10 and Plaintiff’s symptom claims, and Plaintiff has presented evidence that her 11 impairments may be of equal severity to Listing 5.08, the ALJ is instructed to 12 reconsider whether Plaintiff’s impairments meet or equal any listings, including 13 Listing 5.08. The ALJ is further instructed to call a medical expert and a 14 psychological expert to assist in determining if Plaintiff’s impairments meet or 15 equal a listing, and if not, what limitations Plaintiff’s impairments cause. 16 17 E. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 18 ECF No. 15 at 2, 6, 12. 19 “The decision whether to remand a case for additional evidence, or simply to 20 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 2 ORDER - 38 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.609 Page 39 of 41 1 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 2 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 3 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 4 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 5 proper course, except in rare circumstances, is to remand to the agency for 6 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 7 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 8 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 9 discretion for a district court not to remand for an award of benefits” when three 10 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 11 credit-as-true rule, where (1) the record has been fully developed and further 12 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 13 to provide legally sufficient reasons for rejecting evidence, whether claimant 14 testimony or medical opinion; and (3) if the improperly discredited evidence were 15 credited as true, the ALJ would be required to find the claimant disabled on 16 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 17 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 18 the Court will not remand for immediate payment of benefits if “the record as a 19 20 2 ORDER - 39 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.610 Page 40 of 41 1 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 2 F.3d at 1021. 3 While Plaintiff argues immediate benefits are appropriate because she meets 4 or equals Listing 5.08, Plaintiff has not demonstrated her weight loss is due to a 5 digestive disorder, and she did not present an argument as to how she equals 6 Listing 5.08. Plaintiff further urges remand for immediate benefits based on 7 crediting the medical opinions, however, further proceedings are necessary to 8 resolve conflicts in the medical opinion evidence and to take medical expert 9 testimony. As such, the case is remanded for proceedings consistent with this 10 Order. 11 12 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 13 ALJ’s decision is not supported by substantial evidence and is not free of harmful 14 legal error. Accordingly, IT IS HEREBY ORDERED: 15 1. The District Court Executive is directed to substitute Andrew M. Saul as 16 the Defendant and update the docket sheet. 17 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 18 3. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 19 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 20 REVERSING and REMANDING the matter to the Commissioner of Social 2 ORDER - 40 Case 1:19-cv-03057-MKD ECF No. 18 filed 06/24/20 PageID.611 Page 41 of 41 1 Security for further proceedings consistent with this recommendation pursuant to 2 sentence four of 42 U.S.C. § 405(g). 3 The District Court Executive is directed to file this Order, provide copies to 4 counsel, and CLOSE THE FILE. 5 DATED June 24, 2020. 6 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 41

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