Merrill v. Commissioner of Social Security, No. 1:2016cv03072 - Document 24 (E.D. Wash. 2017)

Court Description: ORDER Granting 17 Plaintiff's Motion for Summary Judgment and Denying 21 Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)

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Merrill v. Commissioner of Social Security Doc. 24 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Sep 05, 2017 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MINDY MERRILL, No. 1:16-cv-03072-MKD 8 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 Plaintiff, vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 ECF Nos. 17, 21 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 17, 21. The parties consented to proceed before a magistrate 15 judge. ECF No. 5. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 grants Plaintiff’s motion (ECF No. 17), in part, and denies Defendant’s motion 18 (ECF No. 21). 19 20 21 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether the standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do [her] previous work[,] but cannot, 12 considering [her] age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 423(d)(2)(A). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 18 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 19 “substantial gainful activity,” the Commissioner must find that the claimant is not 20 disabled. 20 C.F.R. § 404.1520(b). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 4 from “any impairment or combination of impairments which significantly limits 5 [her] physical or mental ability to do basic work activities,” the analysis proceeds 6 to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not 7 satisfy this severity threshold, however, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 404.1520(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 404.1520(d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite her limitations, 20 C.F.R. § 404.1545(a)(1), 20 is relevant to both the fourth and fifth steps of the analysis. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that she has performed in the past 3 (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of 4 performing past relevant work, the Commissioner must find that the claimant is not 5 disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of performing such 6 work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 700 F.3d 386, 389 (9th Cir. 2012). 2 ALJ’S FINDINGS 3 Plaintiff applied for Title II disability insurance benefits on December 1, 4 2014,1 alleging a disability onset date of June 25, 2013. Tr. 202-03. The 5 application was denied initially, Tr. 128-30, and on reconsideration, Tr. 139-44. 6 Plaintiff appeared at a hearing before an Administrative Law Judge (ALJ) on 7 November 2, 2015. Tr. 38-82. On December 7, 2015, the ALJ denied Plaintiff’s 8 claim. Tr. 22-32. 9 At step one, the ALJ found that Plaintiff has engaged in substantial gainful 10 activity from June 25, 2013 through September 26, 2014; however, the ALJ 11 determined that there has been a continuous twelve month period during which 12 Plaintiff has not engaged in substantial gainful activity and continued the 13 sequential evaluation. Tr. 24. At step two, the ALJ found Plaintiff has the 14 following severe impairments: posttraumatic stress disorder (PTSD), anxiety 15 disorder, depressive disorder, substance abuse in full remission, right shoulder 16 degenerative joint disease, cervical degenerative disc disease, and obesity. Id. At 17 step three, the ALJ found that Plaintiff does not have an impairment or 18 combination of impairments that meets or medically equals a listed impairment. 19 20 21 1 Plaintiff’s protective filing date was November 25, 2014. Tr. 96, 110-11. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 Tr. 25. The ALJ then concluded that Plaintiff has the RFC to perform light work, 2 with the following limitations: 3 4 5 6 7 8 the claimant is capable of performing mental tasks at a level equivalent to that required of SVP 3 level jobs. The claimant can have incidental contact with the public and is capable of working in proximity to but not in coordination with coworkers. She can have occasional contact with supervisors. The dominant right upper extremity frequently engages in reaching, handling, fingering, and feeling. The right arm does not engage in overhead reaching. She is capable of maintaining production levels at 10% below normal and average production requirements. She would be absent from work 10 times per year. She can have occasional stooping, squatting, crouching, crawling, kneeling, and climbing stairs and ramps. She cannot climb ladders, ropes, and scaffolds. 9 10 Tr. 27. At step four, the ALJ found that Plaintiff is unable to perform relevant past 11 work. Tr. 30. The ALJ found at step five that there are other jobs that exists in 12 significant numbers in the national economy that Plaintiff could perform within her 13 assessed RFC, such as an office helper and marking clerk. Tr. 31. On that basis, 14 the ALJ concluded that Plaintiff was not disabled as defined in the Social Security 15 Act during the adjudicative period, June 25, 2013 to December 7, 2015. Tr. 31-32. 16 On March 14, 2016, the Appeals Council denied review, Tr. 1-4, making the 17 Commissioner’s decision final for purposes of judicial review. See 42 U.S.C. 18 405(g); 20 C.F.R. § 422.210. 19 ISSUES 20 Plaintiff seeks judicial review of the Commissioner’s final decision denying 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 her disability insurance benefits under Title II of the Social Security Act. ECF No. 2 17. Plaintiff raises the following issues for this Court’s review: 3 1. Whether the ALJ properly weighed the medical opinion evidence; and 4 2. Whether the ALJ properly discredited Plaintiff’s symptom claims. 5 ECF No. 17 at 1. 6 7 8 DISCUSSION A. Medical Opinion Evidence Plaintiff faults the ALJ for discounting the medical opinions of 9 William Wilkinson, Ed.D., Cara Alexander, M.D., Kathryn Holgate, LMHC, and 10 Jesus Nacanaynay. ECF No. 17 at 15-20. 11 There are three types of physicians: “(1) those who treat the claimant 12 (treating physicians); (2) those who examine but do not treat the claimant 13 (examining physicians); and (3) those who neither examine nor treat the claimant 14 but who review the claimant’s file (nonexamining or reviewing physicians).” 15 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 16 “Generally, a treating physician’s opinion carries more weight than an examining 17 physician’s, and an examining physician’s opinion carries more weight than a 18 reviewing physician’s.” Id. “In addition, the regulations give more weight to 19 opinions that are explained than to those that are not, and to the opinions of 20 specialists concerning matters relating to their specialty over that of 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 nonspecialists.” Id. (citations omitted). 2 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 3 reject it only by offering “clear and convincing reasons that are supported by 4 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 5 “However, the ALJ need not accept the opinion of any physician, including a 6 treating physician, if that opinion is brief, conclusory and inadequately supported 7 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1228 8 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 9 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 10 may only reject it by providing specific and legitimate reasons that are supported 11 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 12 F.3d 821, 830-31 (9th Cir. 1995)). 13 1. William Wilkinson, Ed.D. 14 On April 9, 2015, Dr. Wilkinson completed a Psychological/Psychiatric 15 Evaluation form for the Washington State Department of Social and Health 16 Services. Tr. 391-99. He diagnosed Plaintiff with PTSD; depressive disorder, and 17 poly substance dependence in late sustained full remission. Tr. 393. He opined 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 that Plaintiff had a marked2 limitation in the abilities to perform activities within a 2 schedule, maintain regular attendance, and be punctual within customary 3 tolerances without special supervision, complete a normal work day and work 4 week without interruptions from psychologically based symptoms, and maintain 5 appropriate behavior in a work setting. Tr. 393-94. Dr. Wilkinson opined that 6 Plaintiff had a moderate3 limitation in six additional basic work activities. Id. He 7 opined that these limitations would be present for nine to twelve months with 8 available treatment. Tr. 394. The ALJ gave some weight to Dr. Wilkinson’s 9 moderate limitations but only little weight to the marked limitations because (1) 10 Plaintiff was able to maintain appropriate behavior with treatment providers and 11 others and (2) Plaintiff would have no more than 10% reduced productivity and 10 12 absences a year. Tr. 29-30. 13 Both of the reasons provided by the ALJ fail to meet the specific and 14 15 16 17 2 A marked limitation is defined as “a very significant limitation on the ability to 18 perform on or more basic work activity.” Tr. 393. 19 3 A moderate limitation is defined as “there are significant limits on the ability to 20 perform one or more basic work activity.” Tr. 393. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 legitimate standard.4 The specific and legitimate standard can be met by the ALJ 2 setting out a detailed and thorough summary of the facts and conflicting clinical 3 evidence, stating his interpretation thereof, and making findings. Magallanes v. 4 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than 5 offer his conclusions, he “must set forth his interpretations and explain why they, 6 rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 7 (9th Cir. 1988). In this case, both reasons the ALJ provided were conclusory and 8 lacked a single citation to the record to support the determination. The ALJ 9 provided no citation to the record or reference to any evidence that supported his 10 assertion that Plaintiff was able to maintain appropriate behavior with treatment 11 providers and others. Tr. 29-30. Additionally, the ALJ’s determination that 12 Plaintiff would have no more than 10% reduced productivity and 10 absences a 13 year is a finding addressed in the RFC assessment and not the opinion of another 14 provider. Tr. 27. The practice of rejecting a provider’s opinion because it is 15 16 4 Neither party asserts whether Dr. Wilkinson’s opinion is contradicted, thus failing 17 to allege which of the two standards apply to the opinion. ECF Nos. 17, 21. 18 However, seeing that neither reason meets the lessor standard of specific and 19 legitimate, it is not necessary for this Court to make a finding as to which standard 20 applies. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 inconsistent with the RFC determination is illogical as the RFC determination is 2 supposed to be based on an evaluation of the evidence, including medical source 3 opinions. See 20 C.F.R. §§ 404.1520(e); 404.1545(a)(3) (The RFC is based on all 4 the relevant medical and other evidence in the case record.). Therefore, these 5 reasons are insufficient under Embrey. 6 Defendant asserts that the ALJ provided a third reason, that Dr. Wilkinson’s 7 reports were inconsistent. ECF No. 21 at 10 (citing Tr. 28). However, the 8 paragraph of the ALJ’s decision Defendant cites is actually a portion of the ALJ’s 9 credibility determination and specifically a finding that Plaintiff’s medical records 10 failed to support her reported symptoms. Tr. 28. In addressing Dr. Wilkinson’s 11 opinion, the ALJ does not address any inconsistency in the medical records, 12 internally or otherwise. Tr. 29-30. As such, Defendant’s assertion is a post hoc 13 rationalization, which will not be considered by this Court. See Orn v. Astrue, 495 14 F.3d 625, 630 (9th Cir. 2007) (The Court will “review only the reasons provided 15 by the ALJ in the disability determination and may not affirm the ALJ on a ground 16 upon which he did not rely.”). 17 Considering the ALJ provided conclusory reasons for rejecting Dr. 18 Wilkinson’s marked limitations that fail to meet the specific and legitimate 19 standard, the case is remanded for additional proceedings to allow the ALJ to 20 properly address the opinion. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 2. Cara Alexander, M.D. 2 On March 12, 2015, Dr. Alexander completed a Psychiatrist Evaluation of 3 Plaintiff. Tr. 376-80. Dr. Alexander diagnosed Plaintiff with PTSD, major 4 depressive disorder, and borderline traits. Tr. 379. Dr. Alexander stated the 5 following: 6 7 8 9 10 11 12 13 These diagnoses are currently severe and are significantly interfering with her ability to work. Specifically in the areas of organization, concentration, motivation, self-care, and interpersonal skills, she shows impairment. She reported this in the history. I also saw this on exam by her intense and guarded interpersonal style (which later calmed significantly when we developed an alliance). On her cognitive exam, she showed poor concentration in spelling WORLD backward. Serial 7s were also slightly incorrect. I think this shows poor concentration since the first 3 answers were correct. She also showed concrete thinking in her interpretation of the proverb. This kind of thinking can make it difficult to interpret people’s intentions in interpersonal situations and can lead to worse anxiety. She also reported that she has not been grooming herself or feeding herself well because of her depression. So I imagine that it would be very difficult for her to maintain a job at this time due to the severity of her symptoms. 14 Tr. 379. Additionally, Dr. Alexander provided the following medical source 15 statement: 16 17 18 19 Despite her impairments, the claimant does show good understanding in her ability to follow conversation and 3-step command. She shows good social interaction once she feels safe. She shows good adaptation in the sense that she overcame a serious drug problem and even got a degree in counseling. She showed good memory in her recall of 3 objects. She showed good ability to reason in her judgment test. 20 21 Tr. 379. The ALJ gave little weight to this opinion because (1) it was merely ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 conclusory and without a function by function explanation and (2) it was 2 inconsistent with the examination. Tr. 30. 3 The ALJ’s reasons for rejecting Dr. Alexander’s opinion are not supported 4 by substantial evidence. First, while Dr. Alexander did not complete a RFC 5 assessment form, she did address several of Plaintiff’s abilities on a function by 6 function basis throughout her opinion, specifically addressing her concentration, 7 motivation, self-care, and interpersonal skills. See Tr. 379. 8 Second, the ALJ found that Dr. Alexander’s opinion was inconsistent with 9 her examination, specifically as to Plaintiff’s memory and concentration. Tr. 30. 10 The ALJ found that the “opinion is not fully consistent with the examination that 11 showed the claimant with intact recent and remote memory.” Tr. 30. However, 12 Dr. Alexander did not opine that Plaintiff’s memory was impaired. Dr. Alexander 13 specifically found that Plaintiff showed “good memory in her recall of 3 objects.” 14 Tr. 379. Therefore, there was no inconsistency regarding Plaintiff’s memory. 15 Additionally, the ALJ found that Dr. Alexander’s opinion regarding 16 Plaintiff’s concentration was inconsistent with the examination results, stating that 17 upon examination Plaintiff “exhibited good attention and concertation and was 18 able to follow a three-step command. The claimant had no difficulty following the 19 conversation.” Tr. 30. The ALJ’s determination appears to be based on a premise 20 that Dr. Alexander’s opinion overstated Plaintiff’s limitations and the medical 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 evaluation showed a lessor degree of severity. However, the evaluation reports 2 stated that Plaintiff “showed poor concentration in spelling WORLD backward. 3 Serial 7s were also slightly incorrect. I think this shows poor concentration since 4 the first 3 answers were correct.” Id. Dr. Alexander then opined that Plaintiff 5 “does show good understanding in her ability to follow conversation and 3-step 6 command[s].” Id. Therefore, the ALJ’s determination is actually the opposite of 7 what the administrative record shows and is not supported by substantial evidence. 8 Considering the ALJ failed to provide reasons supported by substantial 9 evidence to support his rejection of Dr. Alexander’s opinion, this case is to be 10 remanded for additional proceedings to address the opinion. See Hill, 698 F.3d at 11 1158. 12 3. Jesus Nacanaynay, MA, MHP, and Kathryn Holgate, LMHC 13 On April 28, 2015, Mr. Nacanaynay completed a Mental Impairment 14 Questionnaire, Tr. 466-70, and on October 19, 2015, Ms. Holgate completed a 15 similar form. Tr. 573-78. The ALJ rejected the opinions contained on these forms 16 because (1) they were based on a few recent sessions with Plaintiff and (2) they 17 failed to include a narrative section, which is the functional opinion under POMS 18 DI 24510.060. Tr. 29. 19 Mr. Nacanaynay and Ms. Holgate are not an acceptable medical sources. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 See 20 C.F.R. § 404.15025 (Acceptable medical sources are licensed physicians, 2 licensed or certified psychologists, licensed optometrists, licensed podiatrists, and 3 qualified speech-language pathologists.). An ALJ is required to consider evidence 4 from non-acceptable medical sources and non-medical sources. 20 C.F.R. § 5 404.1527(f).6 An ALJ must give reasons “germane” to each source in order to 6 discount evidence from non-acceptable medical sources. Ghanim v. Colvin, 763 7 F.3d 1154, 1161 (9th Cir. 2014). 8 The ALJ’s first reason is sufficient to meet the germane standard. By Mr. 9 Nacanaynay’s April 28, 2015 opinion, he had seen Plaintiff eleven times with the 10 first being on November 20, 2014. Tr. 367-74, 413-23, 433. By Ms. Holgate’s 11 October 19, 2015 opinion, she had completed Plaintiff’s treatment plan dated 12 October 14, 2015. Tr. 553-56. Since the treatment was recent and limited to a 13 short period of time, the reason meets the germane standard. See 20 C.F.R. 14 404.1527(f)(1) (the length of the treatment relationship and the frequency of 15 examination are factors to consider when weighing the opinion of a non-acceptable 16 17 5 Prior to March 27, 2017, the definition of an acceptable medical source was 18 located at 20 C.F.R. § 404.1513. 19 6 Prior to March 27, 2017, the requirement that an ALJ consider evidence from 20 non-acceptable medical sources was located at 20 C.F.R. § 404.1513(d). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 medical source).7 2 The ALJ’s second reason does not meet the germane standard. POMS DI 3 24510.060 sets forth the agency’s operating policy on the completion of Form 4 SSA-4734-F4-SUP. However, a comparison of Form SSA-4734-F4-SUP and the 5 forms completed by Mr. Nacanaynay and Ms. Holgate show drastic differences. 6 First, Form SSA-4734-F4-SUP is much shorter, containing only three sections: (1) 7 Summary Conclusions containing twenty functional abilities and boxes to rate the 8 level of impairment ranging from no evidence of limitation to markedly limited 9 (commonly known as a mental RFC); (2) Remarks; and (3) Functional Capacity 10 Assessment.8 The forms completed by Mr. Nacanaynay and Ms. Holgate contain 11 seventeen questions, only one of which addresses the functional limitations 12 commonly known as a mental RFC. Tr. 466-70, 573-78. Several of these 13 questions pertain to meeting one of the 12.00 listings, including a symptoms list 14 and the “B Criteria”. Tr. 467, 469, 574. Additionally, when addressing the 15 functional abilities that are commonly known as the mental RFC, the forms 16 17 7 Prior to March 27, 217, this factor was applied to non-acceptable medical sources 18 by S.S.R. 06-03p. 19 8 Copy of form located at THOMAS E. BUSH, SOCIAL SECURITY DISABILITY 20 PRACTICE § 245.4 (James Publishing, Inc. 2nd ed., 24th rev., 2017). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 completed by Mr. Nacanaynay and Ms. Holgate have definitions for the degrees of 2 limitation, Tr. 467, 574, while Form SSA-4734-F4-SUP does not. Therefore, the 3 determination that these contrasting forms are sufficiently alike for POMS DI 4 24510.060 to apply is not supported by substantial evidence. Additionally, the 5 forms completed by Mr. Nacanaynay and Ms. Holgate have much more 6 opportunity for narrative discussion than does Form SSA-4734-F4-SUP. 7 Even though the ALJ provided a germane reason for discounting these 8 opinions, the case is being remanded for the ALJ to address other opinions in the 9 record. Therefore, the ALJ is further instructed to readdress the opinions of Mr. 10 Nacanaynay and Ms. Holgate upon remand. 11 12 B. Adverse Credibility Finding Plaintiff faults the ALJ for failing to provide specific findings with clear and 13 convincing reasons for discrediting her symptom claims. ECF No. 17 at 7-15. 14 An ALJ engages in a two-step analysis to determine whether a claimant’s 15 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 16 determine whether there is objective medical evidence of an underlying 17 impairment which could reasonably be expected to produce the pain or other 18 symptom alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 19 “The claimant is not required to show that her impairment could reasonably be 20 expected to cause the severity of the symptom she has alleged; she need only show 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 that it could reasonably have caused some degree of the symptom.” Vasquez v. 2 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 3 Second, “[i]f the claimant meets the first test and there is no evidence of 4 malingering, the ALJ can only reject the claimant’s testimony about the severity of 5 the symptoms if she gives ‘specific, clear and convincing reasons’ for the 6 rejection.” Ghanim, 763 F.3d at 1163 (internal citations and quotations omitted). 7 “General findings are insufficient; rather, the ALJ must identify what testimony is 8 not credible and what evidence undermines the claimant’s complaints.” Id. 9 (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 10 2002) (“[T]he ALJ must make a credibility determination with findings sufficiently 11 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 12 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 13 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 14 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 15 924 (9th Cir. 2002)). 16 In making an adverse credibility determination, the ALJ may consider, inter 17 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 18 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 19 daily living activities; (4) the claimant’s work record; and (5) testimony from 20 physicians or third parties concerning the nature, severity, and effect of the 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 claimant’s condition. Thomas, 278 F.3d at 958-59. 2 The ALJ found that while Plaintiff’s medically determinable impairments 3 could reasonably be expected to cause some of the alleged symptoms, he found 4 Plaintiff less than fully credible concerning the intensity, persistent and limiting 5 effects of the reported symptoms. Tr. 27. The ALJ found Plaintiff’s symptom 6 reports less than fully credible because (1) the limited treatment for her physical 7 impairments are inconsistent with her reported symptoms, (2) the medical evidence 8 does not support the severity of reported symptoms, (3) her cancellation of mental 9 health appoints is inconsistent with her alleged symptoms, and (4) she held herself 10 out as available for work through the receipt of unemployment benefits. Tr. 28-29. 11 Considering the case is being remanded for the ALJ to further address 12 medical source opinions, see supra., and the evaluation of a claimant’s statements 13 regarding limitations relies in part on the assessment of the medical evidence, see 14 20 C.F.R. § 404.1529(c), the ALJ is further instructed to make a new assessment as 15 to whether Plaintiff’s subjective symptom statements are consistent with the record 16 as a whole. See S.S.R. 16-3p. 17 18 C. Remand Plaintiff urges the Court to remand for immediate award of benefits. ECF 19 No. 22 at 1. To do so, the Court must find that the record has been fully developed 20 and further administrative proceedings would not be useful. Garrison, 759 F.3d at 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 1019-20; Varney v. Sec. of Health and Human Servs., 859 F.2d 1396, 1399 (9th 2 Cir. 1988). But where there are outstanding issues that must be resolved before a 3 determination can be made, and it is not clear from the record that the ALJ would 4 be required to find a claimant disabled if all the evidence were properly evaluated, 5 remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 6 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 7 Here, it is not clear from the record that the ALJ would be required to find 8 Plaintiff disabled if all the evidence were properly evaluated. Further proceedings 9 are necessary for the ALJ to properly weigh medical opinions in the record and 10 address the credibility of Plaintiff’s symptom reports. The ALJ is instructed to 11 supplement the record with any outstanding evidence and take testimony from a 12 medical and a vocational expert at a remand hearing. 13 CONCLUSION 14 IT IS ORDERED: 15 1. Plaintiff’s motion for summary judgment (ECF No. 17) is GRANTED, 16 in part, and the matter is REMANDED to the Commissioner for 17 additional proceedings consistent with this order. 18 2. Defendant’s motion for summary judgment (ECF No. 21) is DENIED. 19 3. Application for attorney fees may be filed by separate motion. 20 The District Court Executive is directed to file this Order, enter 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 JUDGMENT FOR THE PLAINTIFF, provide copies to counsel, and CLOSE 2 THE FILE. 3 4 5 DATED September 5, 2017. s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22

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