1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHANIE GAIL BOISCLAIRE, No. 2:18-cv-1748 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge erred by finding that plaintiff did not 21 meet a Listing Impairment and by improperly rejecting medical opinion evidence. 22 //// 23 ////

24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 25 2019. See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. 26 § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 For the reasons explained below, plaintiff’s motion is granted, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 further proceedings consistent with this order. 4 PROCEDURAL BACKGROUND 5 On May 7, 2014, plaintiff filed an application for Disability Insurance Benefits (“DIB”) 6 under Title II of the Social Security Act (“the Act”) alleging disability beginning on October 31, 7 2000. (Transcript (“Tr.”) at 21, 125, 257-58.) On April 15, 2014, plaintiff filed an application for 8 Supplemental Security Income (“SSI”) under Title XVI of the Act also alleging disability 9 beginning on October 31, 2000. (Transcript (“Tr.”) at 21, 257-65.) Plaintiff’s alleged 10 impairments included depression, anxiety, bipolar disorder, and ankle arthritis. (Id. at 110.) 11 Plaintiff’s applications were denied initially, (id. at 167-71, 173-77), and upon reconsideration. 12 (Id. at 182-87.) 13 Plaintiff requested an administrative hearing and a hearing was held before an 14 Administrative Law Judge (“ALJ”) on January 25, 2017. (Id. at 36-109.) Plaintiff was 15 represented by an attorney and testified at the administrative hearing. (Id. at 36-38.) In a 16 decision issued on May 12, 2017, the ALJ found that plaintiff was not disabled. (Id. at 30.) The 17 ALJ entered the following findings: 18 1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2007. 19 2. The claimant has not engaged in substantial gainful activity 20 since October 31, 2000, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 21 3. The claimant has the following severe impairments: depressive 22 disorder, post-traumatic stress disorder (PTSD), generalized anxiety disorder, and status-post left ankle fracture. (20 CFR 404.1520(c) 23 and 416.920(c)). 24 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 25 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 26 and 416.926). 27 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 28 light work as defined in 20 CFR 404.1567(b) and 416.967(b) except 1 she can occasionally climb ladders, ropes, and scaffolds. She can frequently climb ramps and stairs. The work should require only 2 occasional interaction with the public, co-workers and supervisors. The work should require only occasional supervision, defined as 3 requiring a supervisor’s critical checking of the person’s work. The work is limited to simple, routine, repetitive tasks in a work 4 environment with only occasional production rate or pace work. The work should involve only simple, work-related decisions with few, 5 if any, changes in the work place. 6 6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965). 7 7. The claimant was born [in] 1973 and was 26 years old, which is 8 defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). 9 8. The claimant has at least a high school education and is able to 10 communicate in English (20 CFR 404.1564 and 416.964). 11 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a 12 framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82- 13 41 and 20 CFR Part 404, Subpart P, Appendix 2). 14 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 15 numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 16 11. The claimant has not been under a disability, as defined in the 17 Social Security Act, from October 31, 2000, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). 18 19 (Id. at 23-30.) 20 On April 17, 2018, the Appeals Council denied plaintiff’s request for review of the ALJ’s 21 May 12, 2017 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 22 405(g) by filing the complaint in this action on June 18, 2018. (ECF. No. 1.) 23 LEGAL STANDARD 24 “The district court reviews the Commissioner’s final decision for substantial evidence, 25 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 26 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 27 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 28 //// 1 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 2 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 3 “[A] reviewing court must consider the entire record as a whole and may not affirm 4 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 5 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 6 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 7 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 8 1072, 1075 (9th Cir. 2002). 9 A five-step evaluation process is used to determine whether a claimant is disabled. 20 10 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 11 process has been summarized as follows: 12 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 13 Step two: Does the claimant have a “severe” impairment? If so, 14 proceed to step three. If not, then a finding of not disabled is appropriate. 15 Step three: Does the claimant’s impairment or combination of 16 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 17 disabled. If not, proceed to step four. 18 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 19 Step five: Does the claimant have the residual functional capacity to 20 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 21 22 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 23 The claimant bears the burden of proof in the first four steps of the sequential evaluation 24 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 25 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 26 1098 (9th Cir. 1999). 27 //// 28 //// 1 APPLICATION 2 Plaintiff’s pending motion argues that the ALJ committed the following two principal 3 errors: (1) the ALJ erroneously found that plaintiff did not meet a Listing Impairment; and (2) the 4 ALJ improperly rejected medical opinion evidence. (Pl.’s MSJ (ECF No. 12) at 15-24.3) 5 However, although these claims are presented as distinct they are, in fact, related. In this regard, 6 plaintiff argues that the ALJ improperly rejected the opinion of Dr. Glenn Griffin, a non- 7 examining expert witness, who opined that plaintiff’s impairments where consistent with Listing 8 12.04 and 12.06.4 (Id. at 19-20.) 9 At step three of the sequential evaluation, the ALJ must determine whether a claimant’s 10 impairment or impairments meet or equal one of the specific impairments set forth in the Listings. 11 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The physical and mental conditions 12 contained in the Listings are considered so severe that “they are irrebuttably presumed disabling, 13 without any specific finding as to the claimant’s ability to perform his past relevant work or any 14 other jobs.” Lester, 81 F.3d at 828. The Listings were “designed to operate as a presumption of 15 disability that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); 16 see also Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If a claimant shows that his 17 impairments meet or equal a Listing, he will be found presumptively disabled. 20 C.F.R. §§ 18 404.1525-404.1526, 416.925-416.926. 19 The claimant bears the burden of establishing a prima facie case of disability under the 20 Listings. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To “meet” a listed 21 impairment, the claimant must establish that his condition satisfies each element of the listed 22 3 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 23 system and not to page numbers assigned by the parties.

24 4 According to the regulations applicable at the time of the ALJ’s decision, Listing 12.04 25 concerned “[d]epressive, bipolar and related disorders . . . characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all activities, 26 causing a clinically significant decline in functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04 (Mar. 27, 2017). Listing 12.06 concerned “[a]nxiety and obsessive-compulsive disorders . . . . 27 characterized by excessive anxiety, worry, apprehension, and fear, or by avoidance of feelings, thoughts, activities, objects, places, or people.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.06 (Mar. 28 1 impairment. See Zebley, 493 U.S. at 530; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 2 To “equal” a listed impairment, the claimant “must establish symptoms, signs, and laboratory 3 findings” at least equal in severity and duration to each element of the listed impairment. Id. 4 “An ALJ must evaluate the relevant evidence before concluding that a claimant’s 5 impairments do not meet or equal a listed impairment.” Lewis, 236 F.3d at 512 (citing Marcia v. 6 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (“We hold that, in determining whether a claimant 7 equals a listing under step three of the Secretary’s disability evaluation process, the ALJ must 8 explain adequately his evaluation of alternative tests and the combined effects of the 9 impairments.”)). 10 Moreover, an “ALJ must provide a discussion of the evidence and an explanation of 11 reasoning for his conclusion sufficient to enable meaningful judicial review.” Diaz v. 12 Commissioner of Social Sec., 577 F.3d 500, 504 (3rd Cir. 2009) (quotation omitted); see also 13 Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The ALJ’s decision regarding the 14 applicability of Listing 1.04A is devoid of reasoning. . . . This insufficient legal analysis makes it 15 impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ’s 16 findings.”). 17 Here, at step three of the sequential evaluation the ALJ made the following findings with 18 respect to Listing 12.04 and Listing 12.06: 19 The severity of the claimant’s mental impairments, considered singly and in combination, do not meet or medically equal the criteria of 20 listings 12.04 and 12.06. In making this finding, the undersigned has considered whether the “paragraph B” criteria are satisfied. To 21 satisfy the “paragraph B” criteria, the mental impairments must result in at least one extreme or two marked limitations in a broad area of 22 functioning which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or 23 maintaining pace; or adapting or managing themselves. A marked limitation means functioning in this area independently, 24 appropriately, effectively, and on a sustained basis is seriously limited. An extreme limitation is the inability to function 25 independently, appropriately or effectively, and on a sustained basis. 26 In understanding, remembering, or applying information, the claimant has no limitations. The claimant alleged that she has 27 difficulty remembering generally and completing tasks. However, the claimant also stated that she could prepare meals, go to doctor’s 28 appointments, take medications, shop, and drive. In addition, the 1 record shows that the claimant was able to provide information about her health, describe her prior work history, follow instructions from 2 healthcare providers, comply with treatment outside of a doctor's office or hospital, respond to questions from medical providers, and 3 there is no mention of any issues with the claimant’s short- or long- term memory. 4 In interacting with others, the claimant has no limitations. Here, the 5 claimant alleged that she has difficulty engaging in social activities and spending time in crowds. However, according to her statements, 6 the claimant is also able to get along with others, shop, spend time with friends and family, deal appropriately with authority, and live 7 with others. Finally, the medical evidence shows that the claimant had a good rapport with providers, was described as pleasant and 8 cooperative, had good interactions with non-medical staff, and appeared comfortable during appointments. 9 The next functional area addresses the claimant’s ability to 10 concentrate, persist, or maintain pace. For this criterion, the claimant has no limitations. The claimant contended that she has limitations 11 in concentrating generally and completing tasks. On the other hand, the claimant said that she is also able to drive, prepare meals, read, 12 and handle her own medical care. Additionally, the record fails to show any mention of distractibility and an inability to complete 13 testing that assesses concentration and attention. 14 Finally, the claimant has no limitations in her ability to adapt or manage herself. The claimant asserted that she has difficulties 15 managing her mood. That said, the claimant also stated that she is able to handle self-care and personal hygiene and get along with 16 caregivers. Meanwhile, the objective evidence in the record showed the claimant to have appropriate grooming and hygiene, no problem 17 getting along well with providers and staff, normal mood and affect, and no problems with temper control. 18 The undersigned has also considered whether the “paragraph C” 19 criteria are satisfied. In this case, the evidence fails to establish the presence of the “paragraph C” criteria because there is no evidence 20 symptoms cause marginal adjustment, defined as an inability to adapt to changes in your environment or to demands that are not already 21 part of your daily life. 22 (Tr. at 24-25.) 23 The ALJ’s findings, however, are directly contradicted by the testimony of medical expert 24 Dr. Glenn Griffin, Ph.D. In this regard, after a review of plaintiff’s medical records, Dr. Griffin 25 provided expert witness testimony at the January 25, 2017 hearing. (Tr. at 47-72.) Dr. Griffin’s 26 testimony was substantial and included the following opinions. That plaintiff had “a major 27 depressive disorder of moderate severity,” that lasted for 12 continuous months. (Id. at 54-55.) 28 That plaintiff also had “generalized anxiety disorder.” (Id. at 56.) That “the combination of 1 [plaintiff’s] depression and anxiety” rendered plaintiff’s “capacity to understand mildly impaired, 2 capacity to remember mildly impaired, [and] capacity to apply information moderately impaired.” 3 (Id. at 58.) 4 That plaintiff’s ability to interact with others was “[m]arkedly impaired[.]” (Id. at 59.) 5 That plaintiff had a “marked impairment in concentration, moderate impairment in persistence, 6 [and] moderate impairment in pace.” (Id. at 61.) And that plaintiff was “moderately impaired 7 overall,” in the ability to “adapt or manage oneself[.]” (Id. at 62.) 8 Dr. Griffin also testified that plaintiff’s impairment would “likely preclude competitive, 9 gainful employment.” (Id. at 63.) That plaintiff “[c]annot” apply information technically. (Id. at 10 65.) That plaintiff “would not be able to concentrate even at simple, repetitive work for any 11 sustained period of time or for a period of time that would be compatible with competitive gainful 12 employment.” (Id. at 66.) Plaintiff also lacked the ability to perform activities within a schedule, 13 maintain regular attendance, and be punctual. (Id.) Nor could plaintiff sustain an ordinary 14 routine without special supervision. (Id.) 15 Dr. Griffin’s went on to testify that plaintiff did not have the ability to work in 16 coordination or in proximity to others. (Id. at 69.) That plaintiff could not complete a normal 17 workday and work week without interruptions for psychologically based symptoms. (Id.) 18 Plaintiff also could not interact with the public, get along with coworkers, or accept instructions. 19 (Id. at 70.) Finally, Dr. Griffin testified that plaintiff did not have the capacity to respond 20 appropriately to changes in the work setting or to travel or use public transportation. (Id. at 70- 21 71.) In essence, Dr. Griffin opined that plaintiff’s impairments “meet the listing.” (Id. at 68.) 22 The weight to be given to medical opinions in Social Security disability cases depends in 23 part on whether the opinions are proffered by treating, examining, or nonexamining health 24 professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a 25 general rule, more weight should be given to the opinion of a treating source than to the opinion 26 of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a 27 treating doctor is employed to cure and has a greater opportunity to know and observe the patient 28 //// 1 as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 2 F.2d 1059, 1063 (9th Cir. 1990). 3 The uncontradicted opinion of a treating or examining physician may be rejected only for 4 clear and convincing reasons, while the opinion of a treating or examining physician that is 5 controverted by another doctor may be rejected only for specific and legitimate reasons supported 6 by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining 7 physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion 8 of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a 9 treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not 10 accept the opinion of any physician, including a treating physician, if that opinion is brief, 11 conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 12 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 13 2009)). 14 The ALJ’s decision acknowledged that Dr. Griffin provided opinion testimony but did not 15 discuss the nature of that testimony or Dr. Griffin’s opinion. Instead, the ALJ simply stated that 16 the “testimony of the medical expert, Glenn Griffin, Ph.D., is given minimal weight as he was 17 non-examining and the record as a whole supports a finding of non-disability within the 18 limitations of the residual functional capacity.” (Id. at 28.) 19 Although it is true that Dr. Griffin was a nonexamining physician, the ALJ elected to 20 afford more weight to the opinions of “the physicians and psychologists employed by the State 21 Disability Determination Services,” despite the fact that they were also nonexamining physicians. 22 (Id. at 28.) And, unlike Dr. Griffin, the State Disability Determination Services’ physicians did 23 not testify at a hearing. See Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 24 (9th Cir. 1999) (“Opinions of a nonexamining, testifying medical advisor may serve as substantial 25 evidence when they are supported by other evidence in the record and are consistent with it.”). 26 Moreover, the ALJ provided no citation, let alone explanation, for the vague and 27 conclusory assertion that “the record as a whole supports a finding of non-disability within the 28 limitations of the residual functional capacity.” (Id.) “The Commissioner may reject the opinion 1 of a non-examining physician by reference to specific evidence in the medical record.” Sousa v. 2 Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing Gomez v. Chater, 74 F.3d 967, 972 (9th 3 Cir. 1996)). 4 For the reasons stated above, the court finds that the ALJ failed to provide a reason 5 supported by specific evidence for rejecting Dr. Griffin’s opinion.5 Accordingly, plaintiff is 6 entitled to summary judgement on this claim. 7 CONCLUSION 8 After having found error, “‘[t]he decision whether to remand a case for additional 9 evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo v. 10 Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 11 (9th Cir. 1987)). A case may be remanded under the “credit-as-true” rule for an award of benefits 12 where: 13 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 14 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 15 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 16 17 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 18 Even where all the conditions for the “credit-as-true” rule are met, the court retains 19 “flexibility to remand for further proceedings when the record as a whole creates serious doubt as 20 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 21 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 22

23 5 Defendant attempts to provide the explanation and support lacking in the ALJ’s decision. (Def.’s MSJ (ECF No. 15) at 14-19.) The court, however, may not speculate as to the ALJ’s 24 findings or the basis of the ALJ’s unexplained conclusions. See Burrell v. Colvin, 775 F.3d 1133, 25 1138 (9th Cir. 2014) (“We are constrained to review the reasons the ALJ asserts.”); Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing 26 principles of administrative law require us to review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what 27 the adjudicator may have been thinking.”); Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006) (a reviewing court cannot affirm an ALJ’s decision denying benefits on a ground not invoked by 28 1 concludes that further administrative proceedings would serve no useful purpose, it may not 2 remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 3 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is 4 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 5 Here, “there were no examining or treating physician opinions contained within the 6 record[.]” (Pl.’s MSJ (ECF No. 12) at 23.) As such, the court cannot say that further proceedings 7 would serve no useful purpose. This matter will, therefore, be remanded for further proceedings. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s motion for summary judgment (ECF No. 12) is granted; 10 2. Defendant’s cross-motion for summary judgment (ECF No. 15) is denied; 11 3. The Commissioner’s decision is reversed; 12 4. This matter is remanded for further proceedings consistent with this order; and 13 5. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 14 DATED: September 17, 2019 /s/ DEBORAH BARNES

UNITED STATES MAGISTRATE JUDGE

DLB:6

DB\orders\orders.soc sec\boisclaire1748.ord 25 26 27 28