1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL KEILEN LINVILLE, JR., No. 2:18-cv-2135-MCE–KJN 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

ON PARTIES’ CROSS MOTIONS

13 v. FOR SUMMARY JUDGMENT 14 COMMISSIONER OF SOCIAL (ECF Nos. 19, 24)

SECURITY,

15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Title XVI supplemental security income.1 In his summary judgment 19 motion, Plaintiff primarily contends the Administrative Law Judge (“ALJ”) erred in weighing 20 medical evidence and testimony regarding Plaintiff’s mental impairments, and erred in 21 formulating Plaintiff’s residual functional capacity. The Commissioner opposed and filed a 22 cross–motion for summary judgment. 23 After considering the parties’ written briefing, the record, and the applicable law, the 24 Court recommends DENYING the Commissioner’s motion for summary judgment, GRANTING 25 Plaintiff’s motion for summary judgment, and REMANDING this case for further proceedings. 26 /// 27 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15) for findings and 28 recommendations. (See ECF Nos. 8, 9.) 1 I. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS2

2 Plaintiff applied for supplemental security income on October 29, 2013. (Administrative

3 Transcript (“AT”) 20, 87 . ) Plaintiff claimed the following medical conditions: “Bilateral arm

4 pain, abdominal pain, hepatitis C, depression, chronic insomnia, impaired cognition, a peculiar

5 affect, and sustained remission . . . from alcoholism and illicit drugs.” (AT 307.) Plaintiff’s

6 application was denied initially and again upon reconsideration. (AT 87, 106.) Plaintiff, aided by

7 an attorney, sought review of these denials with an ALJ. (AT 123–5.) Plaintiff began working 8 again in April 2016, thereby closing the period for which he could seek disability. (AT 87.) At 9 an August 28, 2017 hearing, Plaintiff testified about his conditions, and the ALJ heard testimony 10 from a vocational expert regarding Plaintiff’s ability to work. (AT 40–74.) 11 On September 18, 2017, the ALJ issued a decision determining that Plaintiff was not 12 disabled for the relevant period. (AT 20–31.) At step one, the ALJ concluded that while Plaintiff 13 had engaged in substantial gainful activity starting in April 2016, he had not done so between 14 then and October 2013––Plaintiff’s application date. (AT 22.) At step two, the ALJ found 15

16 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to 17 engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs 18 eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571–76; Bowen v. Yuckert, 482 U.S. 19 137, 140–42 (1987). The following summarizes the sequential evaluation:

20 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 21 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. 22 Step three: Does the claimant’s impairment or combination of impairments meet 23 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 24 Step four: Is the claimant capable of performing her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 25 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26

27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The 28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 1 Plaintiff to have had the following severe impairments during the relevant period: Borderline

2 Intellectual Functioning and Hepatitic C. (Id.) However, the ALJ determined at step three that

3 these impairments did no t meet or medically equal the severity of a listed impairment. (AT 23)

4 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1).

5 Based on this information, the ALJ found Plaintiff had the residual functional capacity

6 (“RFC”) to perform medium work, except that he could “perform simple, unskilled tasks[, with]

7 no more than occasional interaction with coworkers and the public and where interaction with the 8 public is not a primary component of the job.” (AT 25.) In reaching this conclusion, the ALJ 9 stated that despite the temporal limitation of the claim (between October 2013 and April 2016), 10 he “considered the complete medical history consistent with 20 C.F.R. 416.912(d).”3 The ALJ 11 stated this included considering Plaintiff’s expressed symptoms, the objective medical evidence 12 in the record, and the opinion evidence given by the examining and consulting physicians. (AT 13 25–29.) Relevant here, the ALJ found that while Plaintiff’s “medically determinable [mental] 14 impairments could reasonably be expected to produce the above–alleged symptoms,” the 15 statements from Plaintiff and his family “concerning the intensity, persistence and limiting effects 16 of these symptoms are not entirely consistent with the medical evidence and other evidence in the 17 record . . . .” (AT 27.) Additionally, the ALJ rejected an examining psychiatrist’s opinion––that 18 Plaintiff was severely limited in being able to work safely and deal with routine changes–– 19 because it was inconsistent with his return to work in April 2016. (AT 29.) Instead, the ALJ 20 assigned “great weight” to the non–examining psychiatrist’s opinion that Plaintiff can “interact in 21 work–like settings and [can] complete a workday and workweek.” (AT 28.) Ultimately, the ALJ 22 concluded at steps four and five that while Plaintiff was incapable of performing past relevant 23

24 3 20 C.F.R. § 416.912(d) (2012) read as follows: Before [the Commission makes] a determination that you are not disabled, we 25 will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe 26 that development of an earlier period is necessary or unless you say that your 27 disability began less than 12 months before you filed your application. We will make every reasonable effort to help you get medical reports from your own 28 medical sources when you give us permission to request the reports. 1 work, there were jobs existing in significant numbers in the national economy that Plaintiff could

2 still perform given the restrictions detailed in the RFC. (AT 29–31.)

3 On June 26, 2018 , the Appeals Council denied Plaintiff’s request for review. (AT 6–11.)

4 Plaintiff then timely filed this action requesting judicial review of the Commissioner’s final

5 decision, and the parties filed cross–motions for summary judgment. (ECF Nos. 1, 19, 24, 25.)

6 II. STANDARD OF REVIEW

7 The Court reviews the Com missioner’s decision de novo, and should reverse “only if the 8 ALJ's decision was not supported by substantial evidence in the record as a whole or if the ALJ 9 applied the wrong legal standard.” Buck v. Berryhill, 869 F. 3d 1040, 1048 (9th Cir. 2017). 10 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such 11 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 12 Edlund v. Massanari, 253 F. 3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for 13 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. 14 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one 15 rational interpretation.” Tommasetti v. Astrue, 533 F. 3d 1035, 1038 (9th Cir. 2008). Further, the 16 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F. 3d at 1048. 17 III. ISSUES PRESENTED 18 Plaintiff alleges multiple errors on the ALJ’s part, primarily arguing that the ALJ cherry– 19 picked the record in crafting the RFC. (ECF No. 19 at p. 2.) This includes plaintiff’s argument 20 that the ALJ failed to give specific and legitimate reasons for rejecting portions of the examining 21 physician’s opinion, mischaracterized or ignored other medical opinions and evidence, and 22 improperly rejected Plaintiff’s subjective statements (and the statements of multiple third–parties) 23 regarding his mental limitations. Plaintiff also argues the ALJ failed to fully develop the record, 24 and the RFC does not reflect the evidence the ALJ purportedly relied upon, thereby affecting the 25 Vocational Expert’s analysis. Plaintiff maintains that once Dr. Kemp’s opinions are credited as 26 true, the Court must remand for benefits. Alternatively, Plaintiff indicates at times that a remand 27 for further proceedings is appropriate. 28 The Commissioner counters each of Plaintiff’s arguments, contending that substantial 1 evidence supported the ALJ’s assessment of Plaintiff’s mental functions. (ECF No. 24.) Thus,

2 the Commissioner maintains the ALJ’s opinion should be affirmed.

3 IV. LEGAL STAND A RDS

4 A. Evaluation of Medical Source Opinions

5 The weight given to medical opinions depends in part on whether they are proffered by

6 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F. 3d 1195,

7 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F. 3d 821, 830 (9th Cir. 1995). Generally speaking, 8 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 9 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 10 Holohan, 246 F. 3d at 1202. The medical opinion of a claimant's treating doctor is given 11 “controlling weight” so long as it “is well-supported by medically acceptable clinical and 12 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the 13 claimant's] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating doctor's opinion is not 14 controlling, it is weighted according to factors such as the length of the treatment relationship and 15 the frequency of examination, the nature and extent of the treatment relationship, supportability, 16 and consistency with the record. 20 C.F.R. § 404.1527(c)(2)–(6). 17 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 18 considering its source, the Court considers whether (1) contradictory opinions are in the record; 19 and (2) clinical findings support the opinions. Lester, 81 F. 3d at 831. A contradicted opinion of 20 a treating or examining professional may be rejected for “specific and legitimate” reasons. Id. at 21 830. An ALJ provides specific and legitimate reasons by “setting out a detailed and thorough 22 summary of the facts and conflicting clinical evidence, stating [an] interpretation thereof, and 23 making findings.” Magallanes v. Bowen, 881 F. 2d 747, 751 (9th Cir. 1989). Conversely, to 24 reject an uncontradicted opinion of a treating or examining doctor, the ALJ must state “clear and 25 convincing reasons that are supported by substantial evidence.” Ryan v. Comm'r of Soc. Sec., 26 528 F.3d 1194, 1198 (9th Cir. 2008). 27 //// 28 //// 1 B. Evaluation of a Claimant’s Testimony and Third–Party Reports

2 In evaluating the extent to which an ALJ must credit the claimant’s report of his

3 symptoms, the Ninth Cir c uit has set forth the following two–step analysis:

4 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be 5 expected to produce the pain or other symptoms alleged. In this analysis, the

6 claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only 7 show that it could reasonabl y have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the 8 severity thereof. If the claimant satisfies the first step of this analysis, and there is no evidence of 9 malingering, the ALJ can reject the claimant's testimony about the severity of her 10 symptoms only by offering specific, clear and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the 11 most demanding required in Social Security cases. 12 Revels, 874 F. 3d at 655 (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). 13 To reject third-party reports of a claimant's impairments, the standard is much lower: an 14 ALJ need only “give reasons that are germane to each witness.” Id. (citing Molina v. Astrue, 674 15 F.3d 1104, 1114 (9th Cir. 2012)). 16 V. DISCUSSION 17 Plaintiff begins his arguments by assigning error to a key portion of the examining 18 psychiatrist Dr. Kemp’s medical opinion. (See ECF No. 19 at pp. 28–32.) In the decision, the 19 ALJ states:

20 After the psychological examinations of the claimant, Dr. Kemp opined that the claimant is capable of performing simple and repetitive tasks; he is mildly limited 21 in his ability to maintain regular attendance due to his depression; his ability to 22 perform work activities in a safe manner is severely impaired; his ability to maintain social functioning is mildly to moderately impaired due to depression; 23 his ability to interact with others is moderately impaired due to depression and memory deficits; and his ability to deal with changes in a routine work setting 24 is severely impaired. I grant these opinions some weight as Dr. Kemp had two opportunities to personally examine the claimant, this opinion is within her area 25 of specialty as a clinical psychologist, and her opinion is based at least in part on 26 objective clinical testing. However, I grant little weight to the opinion that the claimant is severely limited in his ability to perform work activities in a safe 27 manner and deal with changes in a routine work setting, as this opinion is not //// 28 1 consistent with the claimant's ability to return to work on a full time basis in April 2016 without evidence of significant medical improvement. 2

3 (AT 29, citations omitted and emphasis added.) In contrast to Dr. Kemp’s opinion, the ALJ

4 assigned great weight to the medical opinion of Dr. Kang, the state agency psychological

5 consultant, who opined that Plaintiff had no such severe limitations and could otherwise “interact

6 in work-like settings and . . . complete a workday and workweek.” (AT 28.) As Dr. Kemp’s

7 “severely impaired” opinions were contradicted by some other medical evidence, the ALJ needed 8 only to provide specific and legitimate reasons for discounting the rejected portions. Lester, 81 F. 9 3d at 830. Plaintiff argues the ALJ failed at this analysis for multiple reasons, primarily 10 analogizing to Moore v. Commissioner of Social Sec. Admin, 278 F.3d 920, 925 (9th Cir. 2002). 11 In Moore, the Ninth Circuit confronted a similar issue with how the ALJ discounted 12 medical opinion evidence. Therein, the plaintiff sought disability benefits for a closed period, and 13 relied upon the opinions of two mental health specialists for support. 278 F.3d at 923. These 14 specialists opined that because of the plaintiff’s developmental disabilities and a recent personal 15 tragedy, the plaintiff was severely restricted in his ability to function at work. Id. The specialists 16 opined that with time and vocational rehabilitation, the plaintiff’s condition might improve. Id. 17 Other psychiatrists examining the plaintiff imposed no such severe restrictions, and so the ALJ 18 was required to provide specific and legitimate reasons for rejecting the “severe” opinions from 19 the specialists. Id. at 924. The ALJ stated that since the plaintiff was able to return to work after 20 the closed period, the specialists’ severe restrictions were “ultimately theoretical”; the ALJ 21 rejected these opinions and denied benefits. Id. The Ninth Circuit reversed, holding that in light 22 of the Social Security Act’s goals of “encourag[ing] individuals who have previously suffered 23 from a disability to return to [work],” it was not a specific and legitimate reason to reject medical 24 opinions solely because the plaintiff’s condition improved and he was again able to work. Id. at 25 925. Because the medical evidence indicated the plaintiff had recovered from his impairment, the 26 Ninth Circuit reversed and remanded for benefits. Id. 27 //// 28 1 Similar to Moore, Dr. Kemp found––after two examinations in 2014––that Plaintiff’s

2 ability to “perform work activities in a safe manner” and “deal with changes in a routine work

3 setting” was severely im p aired. (See AT 425–35; 1017–20.) In discounting these opinions, the

4 ALJ merely stated that since Plaintiff had returned to work at the end of the closed period in April

5 2016, and otherwise had no evidence that his mental conditions had improved, Dr. Kemp’s

6 opinions were inconsistent with the record. (AT 29.) However, as Plaintiff points out, there does

7 appear to be some evidence of impr ovement in Plaintiff’s condition after his Hepatitis C 8 treatment concluded and after he “regularly engaged in group counseling and [] other support 9 services.” (ECF No. 19 at p. 29.) For example, Plaintiff reported in 2016––some two years after 10 Dr. Kemp’s examinations––that his mental health issues were “in the past” and that he was 11 “doing fine.” (See AR 1104, 1106.) In fact, the Commissioner aptly summarizes many of 12 Plaintiff’s improvements near the end of the closed period in the response brief: 13 In November 2016, he reported a good mood since he stopped using drugs in 14 2013. March 2016 psychotherapy treatment notes, reflect that while Plaintiff had 15 not attended therapy in several months, clinical findings were grossly normal. The therapist found that Plaintiff was punctual, attentive, and active in the guided 16 discussion; he showed interest and understanding through his contributions. 17 (ECF No. 24 at p. 3, citing AT 1055, 1066–69.) It may be, as the Commissioner argues, that 18 these findings are “similar to earlier and later findings,” and that Plaintiff’s “chief mental health 19 issue[––]borderline intellectual functioning[––is not] an impairment known for improvement.” 20 (See Id. at p. 9.) However, Plaintiff is correct that the ALJ did not offer these as reasons for 21 discounting Dr. Kemp’s opinions on the subject, and the Court cannot engage in “post hoc 22 rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. 23 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). Because the record contains 24 some evidence that Plaintiff’s condition may have improved between the time Dr. Kemp 25 performed her exams in 2014 and when Plaintiff returned to work, the ALJ was required to 26 provide specific and legitimate reasons––beyond just that Plaintiff became employed after the 27 closed period––for rejecting Dr. Kemp’s opinion of Plaintiff’s “severe impairments.” Moore, 278 28 F.3d at 925; see also Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1 1984) (“ALJs “need not discuss all evidence presented to [them]. Rather, [they] must explain

2 why significant probative evidence has been rejected.”); Diedrich v. Berryhill, 699 F. App'x 726

3 (9th Cir. 2017) (reaffirm i n g the proposition).

4 Regarding remand, the Court recognizes Plaintiff’s request to credit Dr. Kemp’s opinions

5 as true and remand with benefits. See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).

6 However, as indicated above, the undersigned cannot say that additional proceedings would have

7 no utility. Dominguez v. Colvin, 8 08 F.3d 403, 407 (9th Cir. 2016). Unlike Moore, the record 8 here is not so clear that the improvements Plaintiff points to are of the kind that will alter the 9 ALJ’s analysis. It may be, as the Commissioner contends, that Plaintiff’s mental impairments 10 have remained consistent throughout the closed period. If this so, this case would be at odds with 11 Moore, and would call into question why Plaintiff could not have worked, say, “sweeping and 12 mopping floors at a bottling plant” three years sooner––just as he did in 2016. (ECF No. 24 at p. 13 8, citing AT 49.) This ambiguity is for the ALJ, and not the Court, to resolve. Edlund, 253 F. 3d 14 at 1156 (“The ALJ is responsible for determining credibility, resolving conflicts in medical 15 testimony, and resolving ambiguities.”). 16 Further proceedings are required given some of Plaintiff’s other arguments. For example, 17 the Ninth Circuit has consistently stated that “. . . an examining physician’s opinion carries more 18 weight than a non-examining physician’s opinion.” Holohan, 246 F. 3d at 1202. To be sure, the 19 ALJ is allowed to take the opinions of non–examining physicians when they are consistent with 20 the medical evidence. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). However, 21 given that the ALJ will be tasked with weighing Plaintiff’s improvements against the “severe” 22 impairments observed by Dr. Kemp, the ALJ will also need to reconsider Dr. Kang’s and Dr. 23 Corkill’s opinions in this context. The same holds true for the need to reincorporate the 24 remaining medical evidence, including Plaintiff’s GAF scores, which the Ninth Circuit has noted 25 can be “a useful measurement.” Garrison v. Colvin, 759 F.3d 995, 1003 (9th Cir. 2014). This 26 also should include the medical records from the VA, including—for purposes of considering the 27 longevity of Plaintiff’s impairments––those records generated prior to the beginning of the closed 28 period. See Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (“The ALJ was required, 1 however, to examine this evidence in the broader context of [the plaintiff’s] impairment.”).

2 Additionally, the ALJ will be required to reconsider the testimony of Plaintiff (regarding his

3 subjective symptoms) an d the third–party affiants. All of this reweighing may of course require a

4 reformation of Plaintiff’s RFC and resubmission of it to a vocational expert. Given this context,

5 the Court will not rule on the remaining points raised in Plaintiff’s brief. (See ECF No. 19 at

6 points 7.2–7.9.) The ALJ is reminded to “include all of the claimant’s functional limitations, both

7 physical and mental,” Flores v. Sha lala, 49 F.3d 562, 570 (9th Cir. 1995), and be precise if 8 distinguishing between levels of skilled work. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174- 9 1176 (9th Cir. 2008). Simply, on remand, the ALJ should carefully follow Ninth Circuit 10 precedent in assigning weight, as well as “setting out a detailed and thorough summary of the 11 facts and conflicting clinical evidence, stating [an] interpretation thereof, and making findings.” 12 Magallanes, 881 F. 2d at 751. 13 Finally, the Court is confident that the ALJ is aware of the duty to “fully and fairly 14 develop the record.” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). Should Plaintiff 15 wish to submit unredacted records or medical expert testimony, he can do so on remand. See 16 Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (“An ALJ's duty to develop the record 17 further is triggered only when there is ambiguous evidence or when the record is inadequate to 18 allow for proper evaluation of the evidence.”). 19 RECOMMENDATIONS 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. The Commissioner’s motion for summary judgment (ECF No. 24) be DENIED; 22 2. Plaintiff’s motion for summary judgment (ECF No. 19) be GRANTED; 23 3. This matter be REMANDED for further administrative proceedings; and 24 4. The Clerk be directed to enter judgment in Plaintiff’s favor and close the case. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 27 days after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 2 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 3 | objections. The parties are advised that failure to file objections within the specified time may 4 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 5 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 6 | Dated: January 9, 2020 Fesll Arn 8 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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