FILED

NOT FOR PUBLICATION

MAR 2 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KASSIE E. BENSON, No. 20-17010

Plaintiff-Appellant, D.C. No. 4:19-cv-03447-JSW

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 19, 2021 San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and KORMAN,** District Judge. Partial Concurrence and Partial Dissent by Judge MILLER.

Kassie Benson appeals from the district court’s affirmance of the decision of

an administrative law judge (“ALJ”) denying her application for disability insurance

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. This case

has a lengthy and complex procedural history. We presume familiarity of the record

and procedural history and turn to the merits of the case.

The ALJ found that “[t]hrough the date last insured, [Benson] had the

following severe impairments: depressive disorder; obsessive compulsive disorder

(OCD); somatic symptom disorder; anxiety disorder; degenerative disc disease;

[and] morbid obesity with lymphedema of the lower extremities.”1 To determine

whether these impairments rendered Benson disabled, the Social Security

Administration (“SSA”) sought the assistance of, among others, examining

psychiatrist Dr. Mathilde Weems and examining psychologist Dr. Paul Martin. On

this appeal from the order of the district court affirming the denial of benefits by the

ALJ, the parties focus largely on the ALJ’s rejection in whole or part of these

psychological assessments.

Dr. Weems evaluated Benson on October 30, 2012. Weems concluded that

Benson had difficulties with complex tasks, maintaining focus, and tolerating stress.

In a work environment, she would “likely” need instructions repeated and extra

supervision and “would have difficulty maintaining attendance due to lack of

1 “Somatic symptom disorder,” to which the ALJ referred, “is diagnosed when a person has a significant focus on physical symptoms, such as pain . . . to a level that results in major distress and/or problems functioning.” American Psychiatric Association, https://www.psychiatry.org/patients-families/somatic-symptom- disorder/what-is-somatic-symptom-disorder (last visited Feb. 10, 2022).

2 mobility and fatigue.” Weems opined that Benson “has poor stress tolerance, is

easily overwhelmed[,] and may have difficulty getting through a typical workday.”

She also observed that Benson “appeared to be morbidly obese. She was limping

and walking slowly. . . . [H]er body appeared to be shaking at times.”

The ALJ erred in not crediting Weems’s opinion that Benson “would have

difficulty maintaining attendance due to lack of mobility and fatigue,” on the basis

that it was “outside the purview of her expertise.” Weems was an M.D. trained to

assess obvious defects such as decreased mobility and fatigue. Moreover, the ALJ

otherwise agreed with this opinion: “Claimant’s weight, including the impact on her

ability to walk as well as her other body systems, has been considered within the

limitations of the claimant’s residual functional capacity [(“RFC”)].” Cf. Sprague

v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (considering a physician competent

to testify on psychiatric conditions when the conclusions are based on clinical

observations).

The ALJ also erred by discounting Weems’s opinion that Benson had

impaired focus and memory. The ALJ found Weems’s opinion inconsistent with

Benson’s mental status examination because it showed that Benson had the ability

to remember three objects and spell the word “world.” But Benson failed at

performing serial sevens (counting backwards from 100 by sevens), and the ALJ

may not “cherry-pick[]” the findings of physicians. Ghanim v. Colvin, 763 F.3d

3 1154, 1164 (9th Cir. 2014). Moreover, these tests do not appear to tell us much

about the ability to complete a normal workday without interruption, and Social

Security regulations acknowledge that the ability to complete tasks in settings that

are “less demanding . . . than typical work settings does not necessarily demonstrate

[an applicant’s] ability to complete tasks in the context of regular employment

during a normal workday or work week.” 20 C.F.R. p. 404, subpt. P, app. 1, §

12.00(C)(6)(b).

The second examining psychologist, Dr. Martin, reported that Benson

“endorsed symptoms of anxiety including excessive nervousness, ruminating

thoughts, and constant worry.” She “presented . . . in an anxious manner.” Benson

“also reported having [physical] symptoms commonly associated with anxiety” and

“a history of panic attacks.” Martin wrote that Benson “also endorsed numerous

symptoms of depression.” Moreover, Benson reported symptoms of OCD. Martin

diagnosed Benson with major depressive disorder, generalized anxiety disorder with

panic attacks, “[u]nspecified [s]omatic [s]ymptom and [r]elated [d]isorder,” and

“[o]verweight or [o]besity.” In his medical source statement, Martin wrote that

Benson was markedly limited in her ability to complete a normal workday or

workweek without interruptions from her psychiatric condition and in her ability to

deal with the usual stresses encountered in a competitive work environment.

In rejecting Martin’s opinions, the ALJ relied on the fact that his examination

4 was completed four years after her last insured date. But the ALJ had ordered this

examination after the district court remanded this case with directions that the

agency “consider [Benson’s] depression as part of [the] RFC assessment, and assess

[Benson’s] anxiety disorder and OCD.” The agency determined that Martin’s

evaluation was necessary to assist the ALJ in complying with the remand, because

it concluded that the record was not sufficiently developed. Under these

circumstances, the rejection of the report on the ground that it was long after the date

last insured was improper.

The ALJ also found that Martin’s opinions of marked limitation “are

inconsistent with his unremarkable mental status examination.” But like Weems’s

examination, Dr. Martin’s examination and opinions are not internally inconsistent.

Again, Benson’s ability to complete tasks such as identifying how an orange and

banana are similar and naming the last five presidents do not indicate that she is able

to function in a work environment. And while Benson “showed no significant

difficulty with sustained attention and mental tracking” on the Trail Making Test,

which measures “general brain function and assesses the presence of possible brain

damage,” she scored in the low average range on the WAIS-IV test measuring her

“current intellectual abilities” and in the low average range for all four categories of

memory on the WMS-IV flexible approach test. The four categories of memory are

immediate memory, delayed memory, verbal memory, and visual memory.

5 Moreover, in rejecting Dr. Weems’s opinion the ALJ alluded to the contrary

opinions of non-examining psychologists Drs. Lisa Fitzpatrick and Timothy

Schumacher. Nevertheless, the ALJ assigned their opinions only “limited weight.”

Indeed, he ultimately concluded that while their analysis of the record was

“instructive,” he was “convinced that [Benson] was more limited before her date last

insured” than Fitzpatrick and Schumacher said. In any event, “the conclusion of a

non-examining physician is entitled to less weight than the conclusion of an

examining physician.” Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990).

Moreover, to the extent other non-examining physicians opined that Benson’s

physical disabilities were not disabling, none of them were psychologists or

psychiatrists trained to assess the effect of her severe mental impairments on her

ability to work. On the contrary, their assessments that she could do “light work”

were based on the extent to which she could engage in certain physical activity.

Indeed, the SSA regulations that define light work speak to the claimant’s ability to

lift, carry, and walk. 20 C.F.R. § 404.1567(b).

We reverse the judgment of the district court with instructions to remand to

the ALJ for the calculation and award of benefits. Here, “the record has been fully

developed and further administrative proceedings would serve no useful purpose.”

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). This case has been pending

for nine years, and two different ALJs have conducted hearings. As discussed, the

6 ALJ “failed to provide legally sufficient reasons for rejecting” the opinions of the

examining psychiatrist and psychologist. Id. Finally, “if the improperly discredited

evidence were credited as true, the ALJ would be required to find the claimant

disabled on remand” at step three, id., because the opinions show that she was

“seriously limited” in her ability to function “independently, appropriately,

effectively, and on a sustained basis” in at least two of the four categories of

functioning: “[u]nderstand, remember, or apply information; interact with others;

concentrate, persist, or maintain pace; and adapt or manage [her]self.” 20 C.F.R. pt.

404, subpt. P, app. 1, §§ 12.00(A)(2)(b), (F)(2)(d). Moreover, the ALJ would be

required to find Benson unable to perform any work at step five based on the

vocational expert testimony that someone who was off task for 20% or more of the

time could not perform any work. The ALJ assumed that an individual who was

markedly limited in their ability to complete a normal workday or workweek without

interruptions would be off task 20% or more of the time.

REVERSED AND REMANDED.

7

FILED

MAR 2 2022

Benson v. Kijakazi, No. 20-17010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MILLER, Circuit Judge, concurring in part and dissenting in part:

I agree that the decision of the administrative law judge was not supported

by substantial evidence, but I would remand for further proceedings rather than

order an award of benefits.

When a court sets aside a decision of an administrative agency, “the proper

course, except in rare circumstances, is to remand to the agency for additional

investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)

(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). That

principle applies to decisions of the Social Security Administration just as it does

to decisions of other agencies. Treichler v. Commissioner of Soc. Sec. Admin., 775

F.3d 1090, 1099 (9th Cir. 2014) (“The ordinary remand rule applies equally

to Social Security cases.”). Accordingly, we have held that a remand for an

immediate award of benefits is appropriate only in “the unusual case in which it is

clear from the record that the claimant is unable to perform gainful employment.”

Id. at 1106 (quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)). We

will direct an award of benefits only if “the record as a whole is free from conflicts,

ambiguities, or gaps, . . . all factual issues have been resolved, and . . . the

claimant’s entitlement to benefits is clear under the applicable legal rules.” Id. at

1103–04.

1 Even if the testimony of Dr. Weems and Dr. Martin were credited as true, it

is not clear from the record that Benson would be unable to perform gainful

employment. It is the ALJ’s role in the first instance to assess whether testimony

shows that the claimant’s impairments meet the listing criteria of the regulations at

step three. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2); 20 C.F.R.

§ 416.926. In addition to his findings of impairment, Dr. Martin found that Benson

was only “mildly limited” in performing detailed and complex tasks, “mildly

limited” in ability to perform work activities without additional supervision, and

“moderately limited” in ability to perform work activities on a consistent basis. He

also found that she “showed no significant difficulty with sustained attention and

mental tracking” on the trail-making test and that she scored in the “Low Average”

range on both the WMS-IV memory test and WAIS-IV intelligence test. The ALJ

must evaluate those treatment observations alongside all other medical evidence to

determine whether they compel a finding that Benson’s impairments met or

equaled the listing criteria.

The same is true of the analysis at step five. Although the vocational expert

testified that someone who was off-task 20 percent of the day would not be able to

perform substantial gainful work, neither Dr. Weems nor Dr. Martin said that

Benson would be off-task 20 percent of the day. To be sure, their testimony might

be taken to imply that conclusion, but the matter is not free from doubt, and it is

2 the job of the ALJ, not this court, to translate clinical findings into a residual

functional capacity. Rounds v. Commissioner of Soc. Sec. Admin., 807 F.3d 996,

1006 (9th Cir. 2015). I would remand to permit the ALJ to do so.

3