1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SILVER MILLION, No. 2:19-cv-815-EFB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under XVI 20 of the Social Security Act. The parties have filed cross-motions for summary judgment. ECF 21 Nos. 14 & 16. For the reasons discussed below, plaintiff’s motion is granted, the Commissioner’s 22 cross-motion is denied, and the matter is remanded for further proceedings. 23 I. Background 24 Plaintiff filed an application for SSI, alleging that she had been disabled since November 25 10, 2016. Administrative Record (“AR”) at 215-223. Her application was denied initially and 26 upon reconsideration. Id. at 101-05, 111-15. Two hearings were subsequently held before 27 administrative law judge (“ALJ”) Plauche F. Villere. Id. at 33-58, 60-74. 28 ///// 1 On November 21, 2018, the ALJ issued a decision finding that plaintiff was not disabled 2 under section 1614(a)(3)(A) of the Act.1 Id. at 17-27. The ALJ made the following specific 3 findings:

4 1. The claimant has not engaged in substantial gainful activity since December 31, 2016, the 5 application date (20 CFR 416.971 et seq.).

6 2. The claimant has the following severe impairments: major depressive disorder with melancholic features, type II bipolar disorder, social anxiety disorder, and gender 7 dysphoria (20 CFR 416.920(c)).

8 * * * 9 /////

11 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation:

16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart 2 P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 3 * * * 4 4. After careful consideration of the entire record, the undersigned finds that the claimant has 5 the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant could perform simple and 6 detailed tasks. The claimant could occasionally interact with coworkers, supervisors, and the public. 7

8 * * *

9 5. The claimant has no past relevant work (20 CFR 416.965).

10 6. The claimant was born [in] 1992 and was 24 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963). 11 7. The claimant has at least a high school education and is able to communicate in English 12 (20 CFR 416.964). 13 8. Transferability of job skills is not an issue because the claimant does not have past 14 relevant work (20 CFR 416.968).

15 9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant number in the national economy that the 16 claimant can perform (20 CFR 416.969 and 416.969(a)). 17 * * * 18 10. The claimant has not been under a disability, as defined in the Social Security Act, since 19 December 31, 2016, the date the application was filed (20 CFR 416.920(g)). 20 21 AR at 19-27. 22 Plaintiff’s request for Appeals Council review was denied on March 9, 2019, leaving the 23 ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 24 II. Legal Standards 25 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 26 of fact are supported by substantial evidence in the record and the proper legal standards were 27 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 28 1 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 2 180 F.3d 1094, 1097 (9th Cir. 1999). 3 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 4 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 5 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 6 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 7 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 8 N.L.R.B., 305 U.S. 197, 229 (1938)). 9 “The ALJ is responsible for determining credibility, resolving conflicts in medical 10 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 11 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 12 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 13 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 14 III. Discussion 15 Plaintiff’s motion advances four arguments. First, plaintiff argues that the ALJ failed to 16 adequately consider whether plaintiff’s medical condition satisfies the criteria for Listings 17 12.04(c) and 12.06(c). Second, she argues that the ALJ failed to properly weigh the medical 18 opinion evidence of record. Third, she contends that the ALJ rejected her subjective complaints 19 absent clear and convincing reasons. Fourth, she argues that the ALJ failed to pose questions to 20 the vocational expert that accurately reflected the limitations contained in the residual functional 21 capacity (“RFC”) determination. ECF No. 14 at 4-11. The court finds plaintiff’s second 22 argument persuasive and, thus, declines to reach her remaining arguments. 23 A. Relevant Background 24 Seven medical sources proffered opinions addressing plaintiff’s mental limitations. 25 Plaintiff’s treating physician, Dr. Ava Asher, determined plaintiff was moderately impaired in 26 interacting with others; maintaining concentration, persistence, or pace, and adapting or managing 27 oneself. AR 443. It was also her opinion that plaintiff had only a minimal capacity to adapt to 28 changes in environment or demands in daily life. Id. 1 Plaintiff was evaluated by two examining psychologist, Dr. Susan Barron, Ph.D. and Dr. 2 Lenore Tate, Ph.D. Dr. Barron concluded plaintiff was moderately limited in maintaining regular 3 attendance, handling normal work-related stress from a competitive work environment, 4 completing a normal workday or workweek, staying consistent with adequate pace, and 5 maintaining productivity. Id. at 422-23. Dr. Barron also found plaintiff was moderately-to- 6 severely limited in accepting instructions from supervisors and interacting with coworkers and the 7 public. Id. at 422. Dr. Tate opined plaintiff was moderately impaired in interacting with 8 coworkers and the public but was no more than mildly impaired in her ability to function in all 9 other areas. Id. at 437. 10 Four non-examining sources reviewed plaintiff’s medical records and proffered opinions 11 as to her functional limitations. State agency psychologist Mack Stephenson, Ph.D. opined that 12 plaintiff was moderately limited in carrying out detailed instructions, maintaining attention and 13 concentration, performing activities within a schedule, maintaining regular attendance and being 14 punctual; completing a normal workday and workweek; accepting instructions from supervisors; 15 and interacting appropriately with coworkers and the public. Id. at 82-83. State agency 16 psychiatrist L. Colsky concluded plaintiff could maintain a regular schedule; perform one to two 17 step tasks with adequate concentration, persistence, and pace; interact with coworkers and 18 supervisors on a “casual/superficial basis” with no more than usual supervisions. Id. at 96-97. 19 The ALJ obtained written responses to interrogatories from non-examining psychiatrist 20 Dr. Ramon Fortuno. Dr. Fortuno concluded plaintiff was moderately impaired in carrying out 21 complex instructions, making judgments on complex work-related decisions, and interacting 22 appropriately with supervisors, co-workers, and the public. Id. at 566-57. The ALJ also sought 23 testimony from Dr. Charles Kivowitz, M.D., a non-examining medical expert, at plaintiff’s 24 second administrative hearing. Dr. Kivowitz testified that plaintiff was able to perform detailed, 25 but not complex, tasks and occasionally interact with others. Id. at 65-66. 26 B. Discussion 27 In his decision, the ALJ afforded “significant weight” to each of the medical opinions of 28 record, except that of Dr. Fortuno, who opined that plaintiff had marked limitations in interacting 1 with others.2 Id. at 25-26. Plaintiff argues that the ALJ’s decision provides no explanation as to 2 how each of these opinions, which include varying limitations, supported the RFC determination. 3 ECF No. 14 at 7-9. 4 An ALJ is required to make fairly detailed findings in support of his decision to allow for 5 meaningful judicial review. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984). The 6 findings must be sufficiently specific to permit the court to conclude that the findings are not 7 arbitrary. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ is also tasked with 8 “translating and incorporating clinical findings into a succinct RFC.” Rounds v. Comm’r Soc. 9 Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Where an ALJ accords substantial or great 10 weight to a physician’s opinion, he must either incorporate their findings into the RFC or offer an 11 explanation for why he chose not to accept them. See, e.g., Martin v. Comm’r of Soc. Sec. 12 Admin., 472 F. App’x 580 (9th Cir. 2012) (unpublished) (“The administrative law judge (ALJ) 13 erred when formulating Martin’s residual functional capacity (RFC) because the RFC neither 14 incorporated Dr. Steiner’s opinion of Martin’s work limitations nor gave specific and legitimate 15 reasons for rejecting it.”); Neufeld v. Berryhill, 2018 WL 4739699, *6 (C.D. Cal. Sept. 30, 2018) 16 (“Having afforded ‘great weight’ to the opinions of Dr. Bartell and Dr. Loomis, the ALJ was 17 bound to either incorporate their findings as to Plaintiff’s limitations or explain why she decided 18 not to accept them.”). 19 Despite purporting to give equal weight to nearly all medical opinions, the ALJ’s decision 20 strongly suggests that he adopted, without explanation, Dr. Kivowitz’s non-examining opinion. 21 Dr. Kivowitz testified plaintiff could perform simple and detailed, but not complex, tasks with 22 only occasional interaction with others. AR 65-66. These limitations are virtually identical to 23 those articulated in the ALJ’s RFC determination. Id. at 21. The ALJ concluded that Dr. Asher, 24 Dr. Barron, Dr. Tate, Dr. Stephenson, and Dr. Colsky’s opinions were entitled to significant 25 weight because they were “consistent with medical expert Dr. Kivowitz[‘s]” opinion. AR 25. 26 This suggests Dr. Kivowitz’s opinion was the starting point for the RFC determination. 27 2 The ALJ concluded Dr. Fortuno’s opinion was entitled to “some weight” because the 28 remaining assessed limitations were consistent with treatment notes. AR 25. 1 Presumably, the ALJ adopted Dr. Kivowitz’s opinion because it was presented in terms 2 employed by Dictionary of Occupational Titles—e.g., frequently, occasionally—which differ 3 somewhat from those utilized in the agency’s regulations—e.g., moderate, marked. See SSR 83- 4 10. But the ALJ’s decision makes no attempt to explain how the other medical opinions of record 5 are consistent with Dr. Kivowitz’s opinion. To the ALJ’s credit, the specific limitations identified 6 by Dr. Kivowitz find support from the other medical opinions. Drs. Barron, Tate, Stephenson, 7 Colsky, and Fortuno each concluded plaintiff was moderately impaired in her ability to intact 8 with others. Id. at 83-83, 96, 422, 437, 567. With the exception of Dr. Stephenson, these sources 9 also opined that the plaintiff was no more than mildly impaired in her ability to perform simple 10 and detailed tasks.3 Id. at 96, 422, 437, 566. 11 But these sources also concluded that plaintiff was at least moderately impaired in several 12 other functional areas. For instance, Dr. Asher concluded that the plaintiff had only a minimal 13 capacity to adapt to changes in environment or demands in daily life. Id. at 443. Likewise, Dr. 14 Barron opined that plaintiff was moderately impaired in maintaining regular attendance, handling 15 normal work-related stress, and completing a normal workday or workweek and staying 16 consistent with adequate pace and productivity without interruption from a psychiatric condition. 17 AR 422-23. And while examining psychologist Dr. Tate concluded that the plaintiff was only 18 mildly limited in maintaining attendance and completing a normal workday/workweek, she also 19 determined that plaintiff was moderately impaired in dealing with usual stress encountered in the 20 workplace. 21 Despite giving significant weight to each of these opinions, the RFC determination 22 contains no limitations regarding plaintiff’s ability to adjust to changes, handle stress, maintain 23 regular attendance, and complete a normal workday or workweek. See Betts v. Colvin, 531 F. 24 App’x 799, 800 (9th Cir. 2013) (holding that ALJ erred where they gave great weight to doctor’s 25 opinion but failed to account for ‘moderate’ limitations in completing normal workweek without 26 psychologically-based interruptions in the RFC); Carroll v. Colvin, 2016 WL 3144410, at *4-5 27 3 Dr. Stephenson found plaintiff was moderately impaired in performing detailed tasks. 28 AR 83 1 (W.D. Wash. June 6, 2016) (ALJ erred by failing to account for opinion that plaintiff would have 2 difficulty completing a normal workday and workweek despite limiting RFC to simple repetitive 3 tasks); Markell v. Berryhill, 2017 WL 6316825 at *7-8 (N.D. Cal. Dec. 11, 2017) (holding that 4 RFC limiting claimant to simple, repetitive tasks accounted for moderate impairment in 5 concentration, persistence, and pace, but did not account for limitations in attendance or ability to 6 interact with supervisors); Scott v. Colvin, 2015 WL 11438598, at *7 (N.D. Cal. Dec. 9, 2015) 7 (“While the ALJ’s RFC here may adequately account for Plaintiff’s moderate difficulty in 8 concentrating and focusing on sustained, productive work, [Stubbs-Danielson]4 does not hold that 9 a limitation to simple, routine work accounts for difficulties in maintaining attendance and with 10 communicating in the workplace.”); Olmedo v. Colvin, , 2015 WL 3448093, at *8-9 (E.D. Cal. 11 May 28, 2015) (RFC limiting claimant to simple, repetitive tasks with no public contact did not 12 account for limitations in maintaining attendance and completing a normal workday or 13 workweek, among others). 14 Because the ALJ failed to provide any explanation as to why such opinions were not 15 incorporated into the RFC, remand for further proceedings is warranted. Dominguez v. Colvin, 16 808 F.3d 403, 407 (9th Cir. 2015) (“A district court may reverse the decision of the 17 Commissioner of Social Security, with or without remanding the case for a rehearing, but the 18 proper course, except in rare circumstances, is to remand to the agency for additional 19 investigation or explanation.”) (internal quotes and citations omitted). 20 IV. Conclusion 21 Accordingly, it is hereby ORDERED that: 22 1. Plaintiff’s motion for summary judgment is granted; 23 2. The Commissioner’s cross-motion for summary judgment is denied; 24 3. The matter is remanded for further proceedings consistent with this order; and 25 ///// 26 ///// 27

28 4 Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). wOOe 2h UV VVOL □□□ MMVVUETTOCII ty PIR Vee POY VI

1 4. The Clerk is directed to enter judgment in plaintiff's favor and close the case. 2 | DATED: September 28, 2020. tid, PDEA 4 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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