Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 1 of 9 Page ID #:419

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 AMBER L.,1 Case No. 2:20-cv-06500-GJS

12 Plaintiff

MEMORANDUM OPINION AND

13 v. ORDER

14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 15 Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff Amber L. filed a complaint seeking review of Defendant 19 Commissioner of Social Security’s (“Defendant”) denial of her application for 20 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 21 the undersigned United States Magistrate Judge [Dkts. 11, 12] and briefs addressing 22 disputed issues in the case [Dkt. 16 (“Pltf.’s Br.”) and Dkt. 19 (“Def.’s Br.”)]. 23

24 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. 25

26 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 27 Kijakazi should be substituted, therefore, for Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by reason of the last 28 sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 2 of 9 Page ID #:420

1 Plaintiff did not file a reply. The Court has taken the parties’ briefing under 2 submission without oral argument. For the reasons discussed below, the Court finds 3 that this matter should be remanded for further proceedings. 4 5 II. ADMINISTRATIVE DECISION UNDER REVIEW 6 Plaintiff applied for SSI under Title XVI of the Social Security Act in April 7 2017, alleging disability beginning March 5, 2012. [Administrative Record (AR 8 168-178).] The agency denied Plaintiff’s claims initially and on reconsideration 9 (AR 90-99), and Administrative Law Judge (“ALJ”) Philip J. Simon convened a 10 hearing in May 2019. [AR 32-68.] In a decision dated July 30, 2019, the ALJ 11 determined that Plaintiff was not disabled, following the five-step sequential 12 evaluation process set forth in 20 C.F.R. § 416.920(a). [AR 17-27.] 13 As relevant here, the ALJ found that Plaintiff had medically severe 14 impairments of autism spectrum disorder with intellectual impairment; an anxiety 15 disorder; and depressive disorder. [AR 19.] The ALJ concluded that these 16 impairments did not meet or equal any impairment listed in 20 C.F.R. Pt. 404, 17 Subpt. P., App. 1 (AR 20) and found that Plaintiff had the following Residual 18 Functional Capacity (“RFC”) to perform a full range of work at all exertional levels, 19 but with nonexertional limitations including: 20 She is able to perform work involving only short and simple 21 instructions. She can have no public contact. She can have limited interpersonal contact overall. The claimant can work in an environment 22 where there are other people around, but would be doing her own work. She cannot perform work involving teamwork interdependence among 23 employees; she can have normal contact with supervisors to get work assignments, with occasional changes in work assignments and 24 occasional feedback, encouragement, or correction from supervisors. 25 [AR 22.] 26 The ALJ determined that Plaintiff had no past relevant work. [AR 25.] The 27 ALJ determined, however, that considering Plaintiff’s age, education, work 28 experience, and RFC, there were jobs in the national economy that Plaintiff could 2 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 3 of 9 Page ID #:421

1 perform, and she was not disabled. [AR 26-27.] The ALJ’s determination was 2 based, in part, on a colloquy with a Vocational Expert (“VE”), John Komar. [AR 3 60-67.] The VE was asked to opine, given Plaintiff’s RFC, “what jobs might be 4 available?” [AR 58.] The VE responded that there would be positions as an 5 “advertising material distributor,” “silver wrapper,” “photocopying machine 6 operator,” and “collator operator.” [AR 62.] When asked whether those jobs were 7 consistent with the DOT, the VE responded in the affirmative. [AR 63.] 8 Plaintiff challenges the ALJ’s decision based on two alleged errors. First, 9 Plaintiff contends that the ALJ improperly rejected the state agency reviewing 10 psychologists’ opinions, without explanation, that Plaintiff is limited to “superficial 11 interactions with supervisors” and/or “coworkers” which conflicts with the ALJ’s 12 finding that Plaintiff can have “normal contact with supervisors.” [Pltf.’s Br. at 6- 13 9.] Second, Plaintiff contends that her RFC limitation to “short and simple 14 instructions” conflicts with the representative jobs identified by the VE, three of 15 which, pursuant to the Dictionary of Occupational Titles (“DOT”) require reasoning 16 level 2, where reasoning level 2 requires “[applying] commonsense understanding to 17 carry out detailed but uninvolved written or oral instructions.” [Pltf.’s Br. at 6-9.] 18 And although the fourth position “advertising material distribution” requires only 19 level 1 reasoning, Plaintiff is precluded from performing work that requires “public 20 contact.” [Pltf.’s Br. at 9.] 21 III. GOVERNING STANDARD 22 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 23 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 24 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 25 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 26 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 27 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 28 3 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 4 of 9 Page ID #:422

1 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 2 also Hoopai, 499 F.3d at 1074. 3 The Court will uphold the Commissioner’s decision when the evidence is 4 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 5 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 6 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 7 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 8 reverse the Commissioner’s decision if it is based on harmless error, which exists if 9 the error is “inconsequential to the ultimate nondisability determination, or if despite 10 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 11 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 12 omitted).

IV. DISCUSSION

13 14 A. The ALJ Failed to Properly Evaluate the Persuasiveness of a Prior 15 Administrative Medical Finding 16 Plaintiff argues that the ALJ failed to incorporate the limitations assessed in 17 the prior administrative medical finding (“PAMF”)3 completed by Dr. Elizabeth 18 Covey, Psy. D. and Dr. Sandip Sen, M.D., state agency psychologists who reviewed 19 the medical records after Plaintiff sought reconsideration of the agency’s denial of 20 her claims. (Pltf.’s Br. at 10-13.) For the following reasons, the Court agrees that 21 the ALJ erred and finds this issue must be revisited on remand. 22 On July 3, 2017, Dr. Sen completed an assessment of Plaintiff’s mental 23 functional capacity based on her healthcare provider’s records from August 2016 to 24 July 2017. [AR 71-73.] In a mental residual functional capacity assessment form, 25 26 3 “A prior administrative medical finding is a finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our 27 Federal and State agency medical and psychological consultants at a prior level of review in your current claim based on their review of the evidence in your case 28 record . . .” 20 C.F.R. § 404.1513(a)(5). 4 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 5 of 9 Page ID #:423

1 Dr. Sen indicated that Plaintiff is markedly limited in her ability to understand, 2 remember, and carry out detailed instructions. [AR 76-77.] Plaintiff would also 3 have moderate limitations in her ability to: maintain attention and concentration for 4 extended periods; sustain an ordinary routine without special supervision; complete 5 a normal workday and workweek without interruptions from psychologically based 6 symptoms; perform at a consistent pace without an unreasonable number and length 7 of rest periods; interact appropriately with the general public; accept instructions 8 and respond appropriately to criticism from supervisors; work in coordination with 9 or in proximity to others without being distracted by them; get along with coworkers 10 or peers without distracting them or exhibiting behavioral extremes; respond 11 appropriately to changes in the work setting; travel to unfamiliar places or use 12 public transportation; and set realistic goals or make plans independently of others. 13 [AR 76-78.] In narrative form, Dr. Sen described that Plaintiff’s social interaction 14 capacities “will have limitations due to Autism Spectrum Disorder, [she is] able to 15 accept basic instructions and respond to directions and get along superficially with 16 coworkers.” [AR 78 (emphasis added).] 17 The ALJ noted that Dr. Sen’s opinion was “less persuasive” as the record 18 showed that Plaintiff had “greater limitations than Dr. Sen opined.” Despite finding 19 that Dr. Sen’s opinion was not restrictive enough, the ALJ found that Plaintiff had 20 even less limitations than those opined by Dr. Sen, namely that Plaintiff could have 21 “normal contact with supervisors.” [AR 22.] In other words, the ALJ disregarded 22 Dr. Sen’s opinion because it failed to appropriately account for all of Plaintiff’s 23 limitations. However, the ALJ ultimately found, without explanation, that Plaintiff 24 was less limited than Dr. Sen opined. 25 On September 29, 2017, Dr. Covey completed a similar assessment of 26 Plaintiff’s mental functional capacity. [AR 89-92.] Like Dr. Sen, Dr. Covey also 27 found that Plaintiff would be moderately limited in many of her mental and social 28 abilities. [AR 89-92.] Dr. Covey further described Plaintiff’s social interaction 5 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 6 of 9 Page ID #:424

1 capacities as limited to “superficial interaction w[ith] supervisors and coworkers in 2 an environment that does not require interaction w[ith] the public.” [AR 91.] 3 The ALJ found Dr. Covey’s opinion “persuasive as it is supported with 4 explanation, and it is consistent with both the treatment record and the records of the 5 Plaintiff’s continuing education and job training progress.” [AR 25.] 6 Notwithstanding the ALJ’s apparent acceptance of Dr. Covey’s opinion, the ALJ 7 failed to adopt all of Dr. Covey’s mental limitations in Plaintiff’s residual functional 8 capacity, namely, that she is limited to “superficial interaction with supervisors and 9 coworkers.” [AR 91.] Instead, the ALJ found that Plaintiff can have “normal 10 contact with supervisors.” [Pltf.’s Br. at 6-9.] 11 At the administrative hearing, the VE testified, in response to a hypothetical 12 question from Plaintiff’s counsel regarding an individual with Plaintiff’s RFC, 13 “except for the interaction with supervisors and coworkers will be no more than 14 superficial interaction.” [AR 63-64.] In response to Plaintiff’s counsel’s question, 15 the VE testified that “no work” would be available for an individual “if all 16 interaction is to be superficial from day one.” [AR 65.] 17 “The hypothetical an ALJ poses to a vocational expert, which derives from 18 the [residual functional capacity], must set out all the limitations and restrictions of 19 the particular claimant. Thus, a [residual functional capacity] that fails to take into 20 account a claimant’s limitations is defective.” Valentine v. Commissioner Social 21 Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (citation omitted). Here, the ALJ 22 purported to accept Dr. Covey’s opinion with its assessed limitations but did not 23 include those limitations in the residual functional capacity nor in the hypothetical 24 question to the vocational expert. This was error under Valentine. Further, the 25 ALJ’s errors here go to the heart of the disability determination and are therefore not 26 harmless. When asked about the limitations to “superficial contact” the VE 27 explicitly stated that this limitation would preclude employment. See Treichler v. 28 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (“An error is 6 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 7 of 9 Page ID #:425

1 harmless if it is inconsequential to the ultimate nondisability determination, or if the 2 agency’s path may reasonably be discerned . . . .” (internal quotation marks and 3 citations omitted)); Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th 4 Cir. 2006) (“[A] reviewing court cannot consider the error harmless unless it can 5 confidently conclude that no reasonable ALJ, when fully crediting the testimony, 6 could have reached a different disability determination.”). 7 Defendant contends, nevertheless, that the ALJ properly accommodated the 8 state agency consultants limitations to “superficial contacts with supervisors and 9 coworkers” when he found Plaintiff “limited [to] interpersonal contact overall” and 10 specified that “interaction with supervisors would be the normal contact to get work 11 assignments.” [AR 22.] Furthermore, Defendant devotes a great deal of its 12 argument to the import of the new regulations regarding the evaluation of medical 13 evidence. [Def.’s Br. at 6-7.] Defendant’s position, it appears, is that the 14 regulations allow the ALJ to indicate acceptance of the state agency medical 15 consultants in spirit but then to disregard the opinion in practice. The Court rejects 16 this argument. Under the revised regulations, an ALJ must evaluate the 17 persuasiveness of any medical opinion and PAMF and articulate his or her 18 assessment as to each. See 20 C.F.R. § 404.1520c (2017). In evaluating 19 persuasiveness, an ALJ must consider the PAMF’s supportability, its consistency, 20 the relationship between the source and the claimant, the source’s specialization, 21 and other factors such as the source’s knowledge of other evidence, social security 22 requirements, and whether there was subsequently submitted evidence. Id.; 20 23 C.F.R. § 404.1520c(c)(1)-(c)(5). 24 Here, the ALJ explicitly noted that Dr. Covey’s opinion was persuasive, 25 without qualification, but failed to include significant limitations found by Dr. 26 Covey. With respect to Dr. Sen’s opinion, that ALJ inconsistently found that 27 Plaintiff had greater limitations than those found by Dr. Sen yet the ALJ’s ultimate 28 RFC found Plaintiff less limited in her ability to interact with supervisors and co- 7 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page 8 of 9 Page ID #:426

1 workers. The Court acknowledges that the ALJ need not discuss every word or 2 every limitation in an opinion. However, where limitations are significant and 3 plainly conflict with the RFC, the ALJ has some duty to either discount or 4 incorporate them into the RFC. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 5 (9th Cir. 2006); Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (as amended) 6 (“We have made it . . . clear that, in reaching her decision, the Secretary may not 7 reject ‘significant probative evidence’ without explanation.” Because the ALJ did 8 not provide a rational explanation for this failure, remand is warranted on this issue. 9 B. The Court Declines to Address Plaintiff's Remaining Issue 10 Having found that remand is warranted to reconsider the state agency 11 reviewing consultants’ opinions, the Court declines to address Plaintiff’s remaining 12 issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we 13 remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] 14 alternative ground for remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 15 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the 16 other claims plaintiff raises, none of which would provide plaintiff with any further 17 relief than granted, and all of which can be addressed on remand.”).

18

V. CONCLUSION

19 20 The decision of whether to remand for further proceedings or order an 21 immediate award of benefits is within the district court’s discretion. Harman v. 22 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 23 served by further administrative proceedings, or where the record has been fully 24 developed, it is appropriate to exercise this discretion to direct an immediate award 25 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 26 turns upon the likely utility of such proceedings”). But when there are outstanding 27 issues that must be resolved before a determination of disability can be made, and it 28 is not clear from the record the ALJ would be required to find the plaintiff disabled 8 Case 2:20-cv-06500-GJS Document 20 Filed 02/14/22 Page9of9 Page ID #:427

1 || 1f all the evidence were properly evaluated, remand is appropriate. Jd. 2 The Court finds that remand is appropriate because the circumstances of this 3 || case suggest that further administrative review could remedy the ALJ’s errors. See 4 || INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 5 || determination, the proper course is remand for additional agency investigation or 6 || explanation, “except in rare circumstances’); Treichler v. Comm’r of Soc. Sec. 7 || Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is 8 || inappropriate where “there is conflicting evidence, and not all essential factual 9 || issues have been resolved”); Harman, 211 F.3d at 1180-81. 10 For all of the foregoing reasons, IT IS ORDERED that: 11 (1) the decision of the Commissioner is REVERSED and this matter 12 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 13 administrative proceedings consistent with this Memorandum Opinion and 14 Order; and 15 (2) Judgment be entered in favor of Plaintiff. 16 17 || SO ORDERED.

19 || DATED: February 14, 2022 30 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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