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

11 JEANNE R.,1 Case No. 2:19-cv-09809-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Jeanne R. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying her application for 21 Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before 22 the undersigned United States Magistrate Judge [Dkts. 9 and 13] and briefs 23 addressing disputed issues in the case [Dkt. 15 (“Pl. Br.”), Dkt. 16 (“Def. Br.”) and 24 Dkt. 17 (“Reply”)]. The matter is now ready for decision. For the reasons discussed 25 below, the Court finds that this matter should be remanded for further proceedings. 26

27 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. 28 1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 On January 12, 2017, Plaintiff filed her application for DIB alleging disability 3 due to problems with her hands and mental impairments including PTSD, 4 depression, anxiety, and OCD. [Dkt. 11, Administrative Record (“AR”) at 275.] 5 Plaintiff’s application was denied initially, on reconsideration, and after a hearing 6 before Administrative Law Judge (“ALJ”) Roger E. Winkelman. [AR 1-6, 11-26.] 7 Applying the five-step sequential evaluation process, the ALJ found that 8 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 9 ALJ found that Plaintiff had not engaged in substantial gainful activity since April 1, 10 2016, the alleged onset date. [AR 13.] At step two, the ALJ found that Plaintiff had 11 the following severe impairments: bilateral carpal tunnel syndrome, cervical 12 degenerative disc disease, status post excision of a portion of her left small finger, 13 depressive disorder, anxiety disorder, and attention deficit hyperactivity disorder 14 [AR 13.] The ALJ determined at step three that Plaintiff did not have an impairment 15 or combination of impairments that meets or medically equals the severity of one of 16 the listed impairments. [AR 14.] 17 Next, the ALJ found that Plaintiff had the residual functional capacity 18 (“RFC”) to perform medium work. [AR 15.] Applying this RFC, the ALJ found at 19 step four that Plaintiff was not able to perform her past relevant work as a vice 20 president, accounting manager, or office manager. [AR 24]. However, at step five, 21 the ALJ found that Plaintiff was capable of performing other work that exists in 22 significant numbers in the economy. [AR 25-26.] Plaintiff sought review of the 23 ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the 24 Commissioner’s final decision. [AR 1-6.] This action followed. 25 On appeal of the ALJ’s decision, Plaintiff raises the following arguments: (1) 26 the ALJ failed to accurately evaluate the mental impairment evidence and (2) the 27 ALJ failed to properly evaluate her subjective symptom testimony. [Pl. Br. at 4-11; 28 Reply at 1-7.] Plaintiff requests reversal and remand for payment of benefits or, in 1 the alternative, remand for further administrative proceedings. [Pl. Br. at 11.] The 2 Commissioner asserts that the ALJ’s decision should be affirmed. [Def. Br. at 1- 3 11.] 4 III. GOVERNING STANDARD 5 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 6 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 7 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 8 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec. 9 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 10 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 11 is such relevant evidence as a reasonable mind might accept as adequate to support a 12 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 13 2014) (internal citations omitted). 14 The Court will uphold the Commissioner’s decision when the evidence is 15 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 16 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 17 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 18 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 19 reverse the Commissioner’s decision if it is based on harmless error, which exists if 20 the error is “inconsequential to the ultimate nondisability determination, or if despite 21 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 22 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 23 omitted).

IV. DISCUSSION

24 25 A. The ALJ Improperly Assessed the Medical Evidence 26 Plaintiff contends that the ALJ erred by rejecting the mental impairment 27 opinions provided by her treating physicians and the consultative examining 28 psychologist without providing specific and legitimate reasons supported by 1 substantial evidence. [Pl.’s Br. 4-10.] According to Plaintiff, the ALJ “cherry- 2 picked” the medical evidence while rejecting the opinions that supported her 3 allegations of disability. The Court agrees and finds that remand on this issue is 4 warranted. 5 1. Legal Standard 6 “There are three types of medical opinions in social security cases: those 7 from treating physicians, examining physicians, and non-examining physicians.” 8 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 9 20 C.F.R. § 404.1527. In general, a treating physician’s opinion is entitled to more 10 weight than an examining physician’s opinion and an examining physician’s opinion 11 is entitled to more weight than a nonexamining physician’s opinion. See Lester v. 12 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The medical opinion of a claimant’s 13 treating physician is given ‘controlling weight’ so long as it ‘is well-supported by 14 medically acceptable clinical and laboratory diagnostic techniques and is not 15 inconsistent with the other substantial evidence in [the] case record.’” Trevizo v. 16 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).2 17 An ALJ must provide clear and convincing reasons supported by substantial 18 evidence to reject the uncontradicted opinion of a treating or examining physician. 19 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 20 830-31). Where such an opinion is contradicted, however, an ALJ may reject it only 21 by stating specific and legitimate reasons supported by substantial evidence. 22 23 2 For claims filed on or after March 27, 2017, the opinions of treating 24 physicians are not given deference over the opinions of non-treating physicians. See 20 C.F.R. § 404.1520c (providing that the Social Security Administration “will not 25 defer or give any specific evidentiary weight, including controlling weight, to any 26 medical opinion(s) or prior administrative medical finding(s), including those from your medical sources”); 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). Because 27 Plaintiff’s claim for DIB was filed before March 27, 2017, the medical evidence is evaluated pursuant to the treating physician rule discussed above. See 20 C.F.R. § 28 404.1527. 1 Bayliss, 427 F.3d at 1216; Trevizo, 871 F.3d at 675. The ALJ can satisfy this 2 standard by “setting out a detailed and thorough summary of the facts and 3 conflicting clinical evidence, stating [her] interpretation thereof, and making 4 findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick 5 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see also 20 C.F.R. § 404.1527(c)(2)- 6 (6) (when a treating physician’s opinion is not given controlling weight, factors such 7 as the nature, extent, and length of the treatment relationship, the frequency of 8 examinations, the specialization of the physician, and whether the physician’s 9 opinion is supported by and consistent with the record should be considered in 10 determining the weight to give the opinion). 11 2. Pertinent Mental Impairment Evidence 12 i. Treating Physicians - Dr. Lichuan Fang 13 Plaintiff began treating with Dr. Fang, a family physician, for routine medical 14 care beginning in January 2016. [AR 562.] The ALJ summarized Dr. Fang’s 15 treatment as follows: in January 2016, Plaintiff had a normal annual physical and 16 psychiatric examination. [AR 18.] It was noted that she was seeing a psychiatrist 17 (Dr. Winston) once every two months for depression. No functional limitations 18 were imposed. [AR 562-564.] In February 2016, a physical examination was 19 unremarkable and an EEG was normal. A larynoscopy was negative and Plaintiff 20 had a largely normal EKG, colonoscopy, and mammogram. A June 2017, cervical 21 x-ray revealed disc disease and spur formation, but no evidence of herniation, 22 fracture, or impingement. 23 In June 2018, Dr. Fang completed a functional capacity questionnaire. He 24 stated that he had seen Plaintiff on an annual and as needed basis since January 25 2016. [AR 18.] He diagnosed major depressive disorder, anxiety disorder, and 26 post-traumatic stress disorder. Due to these impairments, he opined that Plaintiff 27 was incapable of even low stress jobs, and she would be unable to perform 28 sedentary work. [AR 1342-1343.] 1 The ALJ rejected Dr. Fang’s mental assessment as “unpersuasive” for several 2 reasons including (1) Dr. Fang did not include a narrative discussion of the clinical 3 mental health evidence to support his diagnosis; (2) he checked answers to form 4 questions and did not support his conclusions with objective findings; (3) he is not a 5 psychologist or psychiatrist; and (4) he acknowledged that his treatment had been 6 infrequent. [AR 18.] 7 ii. Treating Physician - Dr. Dustin DeYoung 8 Plaintiff saw Dr. DeYoung, who shares a practice with Dr. Fang, monthly 9 beginning in August 2017. [AR 1336-1340.] Dr. DeYoung did not provide any 10 treatment records, but he submitted a Mental Residual Functional Capacity 11 Questionnaire on Plaintiff’s behalf. [AR 1336.] Dr. DeYoung diagnosed Plaintiff 12 with severe major depressive disorder, PTSD and general anxiety disorder. 13 [AR1336.] Dr. DeYoung noted that Plaintiff has tried multiple medications and 14 combinations of medications to ameliorate her symptoms, but those medications 15 either caused side effects or were ineffective. Dr. DeYoung’s prognosis was that 16 Plaintiff had expressed symptoms for many years with minimal improvement due to 17 her treatment resistant symptoms. [AR 1336.] In a checkbox form, Dr. DeYoung 18 noted that Plaintiff had no useful ability to complete a normal workday and 19 workweek without interruptions nor deal with work stress. In Dr. DeYoung’s 20 opinion, Plaintiff’s impairments would cause her to be absent more than four days 21 per month. [AR 1340.] 22 The ALJ rejected Dr. DeYoung’s opinion as “unpersuasive.” [AR 22.] 23 Specifically, the ALJ opined that Dr. DeYoung’s “extreme functional limitations” 24 were “severely undermined by the lack of clinical findings” and the absence of a 25 narrative discussion of objective findings. Further, Dr. DeYoung failed to provide 26 treatment records to support his conclusory opinion. [AR 22.] 27 iii. Treating Psychiatrist - Dr. Jason Winston 28 The records from Dr. Winston, Plaintiff’s treating psychiatrist, showed 1 treatment for depression, anxiety, binge eating, and problems with focus. [AR 653- 2 724.] Over a series of progress notes, from May 4, 2015 to March 22, 2017, 3 Plaintiff regularly complained about poor memory and concentration, including that 4 she is easily distracted and forgetful. [AR 653, 722.] Dr. Winston’s treatment 5 reports reveal that Plaintiff has had a long history of depression since around the 6 time she was 19 or 20. [AR 722.] Her symptoms increased after the death of her 7 parents. [AR 722.] Dr. Winston frequently observed that Plaintiff was tearful, but 8 his mental status examinations consistently noted Plaintiff’s attention, concentration, 9 and judgment as good. [AR 654, 656, 662, 671, 675, 681, 683, 689, 716, 718, 720, 10 723.] A significant portion of Dr. Winston’s treatment reports documented the trial 11 and adjustment of Plaintiff’s numerous psychiatric medications. [AR 657 difficulty 12 with finding effective medication, “could not tolerate Buspar”; AR 660 could not try 13 Adderall until blood pressure under control; AR 661 “tapering Lamictal”; AR 669 14 “rexult didn’t help.”] 15 Dr. Winston did not complete a medical impairment questionnaire or 16 otherwise provide an opinion about Plaintiff’s functional limitations. However, the 17 ALJ credited Dr. Winston’s treatment reports as persuasive because (1) they were 18 supported by the weight of the mild mental health evidence of record; (2) the 19 numerous mental examinations of Plaintiff were consistent; (3) the treatment reports 20 failed to reveal significant clinical findings; and (4) his reports revealed Plaintiff’s 21 high level of functioning. [AR 22.] 22 iii. Treating Therapist – Ms. Daniella Schrader, Psy. D. 23 Ms. Schrader began seeing Plaintiff weekly for her depression, anxiety, and 24 obsessive-compulsive disorder (OCD) in February 2015. [AR 640.] Ms. Schrader 25 is a licensed psychologist and therefore is an accepted medical source. [Reply at 26 4.]3 In March and July 2017 and July 2018 she wrote a total of three letters stating 27 3 See 20 C.F.R. § 416.902 (“(a) Acceptable medical source means a medical 28 source who is a: . . . (2) Licensed psychologist); see also Lubin v. Commr. of Soc. 1 that Plaintiff’s stress worsened around May 2016 and that “ongoing stressors at 2 work” caused clinical setbacks resulting in worsening symptoms of depression, 3 anxiety, and OCD. [AR 640-41, 1111-12, 1366.] Plaintiff’s OCD is triggered while 4 at work as she fears she is making mistakes, being critiqued and criticized, and 5 therefore she engages in perfectionistic behavior causing paralyzing thoughts which 6 further impairs her functionality. [AR 640.] Ms. Schrader stated that Plaintiff’s 7 panic attacks, bouts of uncontrolled outburst of crying, difficulty sleeping and 8 unhealthy eating patterns made it unlikely she could function in a workplace. [AR 9 640-41, 1111-12, 1366.] 10 In July 2018 Ms. Schrader completed a mental residual functional capacity 11 questionnaire. [AR 1346-1350.] Ms. Schrader reported that due to Plaintiff’s 12 ongoing struggles with focus and concentration she would be unable to complete a 13 normal workday/workweek without interruptions from psychologically based 14 symptoms. [AR 1348.] She would be likely to miss work more than four days per 15 month. [AR 1350.] 16 The ALJ rejected the “assessed functional limitations by Ms. Schrader” as 17 “not persuasive.” The ALJ found that “most mental health resources did not report 18 significant objective mental findings and therefore her conclusions were not 19 supported by clinical evidence.” [AR 20.] The ALJ also found that the letters 20 submitted by Ms. Schrader did not discuss objective findings such as test results. 21 The July 2018 mental residual functional capacity form was not supported by any 22 narrative discussion of mental health evidence to support the conclusion and “she 23 checked answers to form questions, which was additionally “unpersuasive.” [AR 24 20.] 25 /// 26

27 Sec. Admin., 507 Fed. Appx. 709, 712 (9th Cir. 2013) (unpublished) (“as a licensed psychologist, Dr. Shields is an ‘acceptable medical source[]’ within the meaning of 28 20 C.F.R. § 416.913(a)”). 1 iv. Examining Psychologist – Dr. Henry Venter, Ph. D. 2 On April 15, 2017, Dr. Venter, a clinical psychologist performed a 3 Comprehensive Psychological Evaluation of Plaintiff. [AR 988-999.] Dr. Venter 4 noted that Plaintiff drove to her appointment. She presented with neat and clean 5 clothes. During the evaluation, Plaintiff explained to Dr. Venter that after finishing 6 high school, she completed 5 years of college at different institutions including UC 7 Santa Barbara and Cal State Northridge, however Plaintiff never graduated. 8 Plaintiff worked as office/account manager for 9 years until April 2016 when she 9 stopped working due to a combination of physical and psychological symptoms. 10 Before she quit work, she asked for a reduction in some of her tasks due to stress 11 and feelings of being overwhelmed. Since she stopped working, Plaintiff’s 12 symptoms have not improved. [AR 989.] Plaintiff explained that her current 13 psychiatric treatment included psychotherapy with her psychiatrist Dr. Winston and 14 her therapist Daniella Schrader. Plaintiff also takes psychotropic medication 15 including Sertraline and Trazadone for depression and anxiety. [AR 990.] 16 Upon examination, Dr. Venter observed that Plaintiff’s thought process was 17 “not coherent and disorganized.” [AR 992.] She presented as “discombobulated 18 and disorganized, often interrupting herself and the examiner.” [AR 991-992.] Dr. 19 Venter diagnosed “Bipolar I disorder, Most Recent Episode, Depressed, Severe, 20 marked by the following symptoms: mania—distinct periods of abnormally and 21 persistently elevated, expansive, or irritable mood, lasting at least 1 week; inflated 22 self-esteem or grandiosity; decreased need for sleep (feel rested after only 3 hours of 23 sleep); more talkative than usual or pressure to keep talking; flight of ideas or 24 subjective experience that thoughts are racing; distractibility (attention easily drawn 25 to unimportant or irrelevant external stimuli); increase in goal-directed activity 26 (socially, at work, school) or psychomotor agitation; alternating periods of severe 27 depression and low mood with inability to engage in proactive activities. [AR 996- 28 997.] 1 Overall, Dr. Venter opined that Plaintiff was moderately impaired in her 2 ability to (1) relate and interact with coworkers and the public, (2) maintain 3 concentration, attention, persistence and pace, (3) maintain regular attendance; and 4 (4) associate with day-to-day work activity including attendance and safety. 5 Plaintiff had a mild impairment in her ability to do (5) detailed and complex 6 instructions, (6) accept instructions from supervisors, and (7) perform work 7 activities without special or additional supervision. Plaintiff has no impairment in 8 her (8) ability to understand, remember and carry out simple one or two-step job 9 instructions. [AR 997.] 10 The ALJ rejected Dr. Venter’s opinion as “not persuasive” largely due to Dr. 11 Venter’s bipolar diagnosis. The ALJ noted that no other physician or treating 12 professional diagnosed Plaintiff with bipolar disorder, and that Dr. Venter’s opinion 13 was inconsistent with his own mild findings, as well as the overall mild findings in 14 the record. [AR 22.] 15 v. Non-Examining Physicians 16 In May and August 2017, the Agency’s non-examining physicians reviewed 17 Plaintiff’s application for DIB and rendered their opinions. [AR 314-332, 334-354.] 18 The reviewing physicians diagnosed carpal tunnel syndrome, depressive disorder, 19 eating disorder, and attention deficit hyperactivity disorder. They opined that 20 Plaintiff has a moderate impairment in the ability to interact with others, concentrate 21 persist, or maintain pace and adapt or manage herself. Plaintiff also has a moderate 22 limitation in her ability to maintain attention and concentration for extended periods, 23 perform activities without a schedule, maintain regular attendance, be punctual, 24 work in coordination with or in proximity to others, complete a normal 25 workday/week without interruption from psychological symptoms, interact with the 26 public, accept instructions and respond appropriately to supervisors, get along with 27 coworkers, maintain socially appropriate behavior, and respond appropriately to 28 changes in the work setting. [AR 328, 350.] Plaintiff, however, has a mild 1 impairment in her ability to understand, remember or apply information. 2 The ALJ found the opinions of the non-examining physicians persuasive 3 because “they reviewed all of the medical records and reported modest physical and 4 mental health findings” and their opinions were “consistent with the mild objective 5 medical evidence.” As a result, the ALJ adopted the non-examining physicians’ 6 functional limitations. [AR 23.] 7 3. Analysis 8 As a part of and in addition to weighing the overall medical evidence, the ALJ 9 also noted that Plaintiff’s allegation of disability was severely damaged by the 10 acknowledgements in the record regarding Plaintiff’s “highly active lifestyle” since 11 the alleged onset date. [AR 23.] The ALJ explained that multiple medical sources 12 noted that Plaintiff had been applying for jobs, interviewing for jobs, receiving job 13 offers, shopping frequently, attending dance and exercise classes, traveling, 14 vacationing, and driving to daily medical appointments and support group meetings. 15 [AR 23-24.] The ALJ found that Plaintiff’s ability to complete these extensive 16 activities “without difficulty” was inconsistent with her disability claim. [AR 24.] 17 Despite what is undoubtedly an unusually active lifestyle for a benefits 18 claimant, the expert assessments made by the overwhelming majority of the medical 19 practitioners in this case were entitled to greater weight and more careful 20 consideration than the ALJ afforded them for several reasons. See Tonapetyan v. 21 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that examining physician’s 22 “opinion alone constitutes substantial evidence, because it rests on his own 23 independent examination of [claimant]”); see also 20 CFR § 404.1527 24 (f)(2)(i)(“State agency medical and psychological consultants and other program 25 physicians, psychologists, and other medical specialists are highly qualified 26 physicians, psychologists, and other medical specialists who are also experts in 27 Social Security disability evaluation.”). 28 1 First, the ALJ’s reliance on Plaintiff’s activities of daily living outside of the 2 context of competitive work here is based on an inaccurate characterization of the 3 overall record. A conflict between a treating physician’s opinion and the claimant’s 4 daily activities “may justify rejecting a treating provider’s opinion.” Ghanim v. 5 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (considering inconsistency between 6 treating physician’s opinion and claimant’s daily activities as specific and legitimate 7 reason to discount treating physician's opinion)). However, Plaintiff’s daily 8 activities are not in tension with the opinions of her treating providers. 9 Here, Plaintiff’s treatment records described ongoing difficulty with her 10 mental health symptoms during her daily activities. As the ALJ observed, Plaintiff 11 regularly attended fitness classes and looked for work. But Plaintiff struggled 12 significantly in these endeavors including having a “meltdown” with “tears 13 streaming down her face” during her tap class because she became overwhelmed by 14 the instructions. [AR 657, 684.] When Plaintiff was working, she switched from 15 full-time to part-time work due to stress and she eventually quit because she was 16 unable to manage her stress and anxiety. [AR 714.] Although Plaintiff reported that 17 she was searching for “part-time” jobs, she stated the search was “not going well,” 18 “that she can’t get another job in the mindset [she’s] in now,” and when she went on 19 an interview, she had difficulty speaking because of anxiety. [AR 666, 692, 702.] 20 Plaintiff felt that she did not get the job due to her inability to focus and “poor 21 performance during the interview.” [AR 692.] With respect to her tax work, she 22 volunteered to help a friend who was a farmer with some accounting, but when it 23 came to actually doing the work, she testified that she “was so stressed out” that she 24 could not complete it. [AR 274.] When doing daily tasks, Plaintiff reported that 25 “there are so many things to remember, this causes anxiety, she writes it down, then 26 forgets where she wrote it down, books appointments for the wrong time, forgets 27 things.” [AR 686.] Plaintiff also reported that she was no longer able to go to the 28 store alone because her shopping is “totally out of control.” [AR 686.] 1 When reading the record in context, it is apparent that the ALJ 2 mischaracterized Plaintiff’s activities. Plaintiff suffered the same problems with 3 focus, concentration, and inability to deal with even low stress situations in both her 4 daily activities and the work like activities projected by her treating and examining 5 practitioners. Therefore, the ALJ erred by sweeping aside the daily activity 6 evidence supporting the treating and examining opinions while isolating only those 7 findings supporting his conclusion. See Gallant v. Heckler, 753 F.2d 1450, 1456 8 (9th Cir. 1984) (error for an ALJ to ignore or misstate the competent evidence in the 9 record in order to justify her conclusion); Diedrich v. Berryhill, 874 F.3d 634, 642- 10 43 (9th Cir. 2017) (ALJ erred by relying on evidence indicating an ability to 11 function while “ignoring competent evidence in the record that suggests an opposite 12 result.”); see also Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (while the 13 ALJ is not obligated to “reconcile explicitly every conflicting shred of medical 14 testimony,” she cannot simply selectively choose evidence in the record that 15 supports her conclusions). 16 Second, the record does not support the ALJ’s conclusion that the opinions of 17 Dr. Fang, Dr. Venter, Dr. DeYoung, and Ms. Schrader, were inconsistent with the 18 “mild physical and mental health findings” and unsupported by clinical findings. 19 [AR 18-22.] The record documents Plaintiff’s lengthy history of mental illness. 20 While Plaintiff’s symptoms have not always been susceptible to objective 21 verification, as is often the case with mental illness, see Smith v. Colvin, 2015 U.S. 22 Dist. LEXIS 52366, 2015 WL 1814433, at *6 (N.D. Cal. April 21, 2015) (mental 23 impairments are not as readily amenable to objective laboratory testing as are 24 physical impairments), the record contains strong objective and consistent findings 25 related to Plaintiff’s mental impairments and related functional limitations. 26 For example, Plaintiff regularly presented at a myriad of medical 27 appointments as depressed, anxious, and tearful. In the treatment records provided 28 by Dr. Winston, which the ALJ agreed were persuasive, Plaintiff was tearful when 1 expressing stressful events (AR 655), was forgetful with respect to taking 2 medication (AR 656), her focus was off (AR 657), she struggled to handle the stress 3 of her tap dancing class (AR 657), and she complained of being frequently 4 overwhelmed (AR 664). Even the Agency’s own examining physician, Dr. Venter 5 stated that Plaintiff “cannot focus attention during the interview” and her “attention 6 and concentration were noticeably impaired.” [AR 991.] In the capacity 7 questionnaire submitted by Dr. DeYoung he expressed that Plaintiff is easily 8 distracted, has memory impairments, recurrent panic attacks, and difficulty thinking 9 and concentrating, all despite “treatment for many years with minimal 10 improvement.” [AR 1336-1337.] Ms. Schrader stated that Plaintiff’s panic attacks, 11 bouts of uncontrolled outburst of crying, difficulty sleeping and unhealthy eating 12 patterns made it unlikely she could function in a workplace. Collectively, all of the 13 treating and examining practitioners assessed that Plaintiff had difficulty 14 maintaining focus, concentration, and attendance. [AR 998, 1340.] The weight of 15 the record is, therefore, supportive of the treating and examining opinions. 16 By the same token, the ALJ erred in crediting the opinions of the non- 17 examining physicians over the treating and examining opinions. It is well 18 established that “[t]he opinion of a nonexamining physician cannot by itself 19 constitute substantial evidence that justifies the rejection of the opinion of either an 20 examining physician or a treating physician.” Lester, 81 F.3d at 831 (9th Cir. 1995); 21 see also Revels v. Berryhill, 874 F.3d 648 at 654-55 (9th Cir. 2017); Widmark v. 22 Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. Comm’r, 169 F.3d 23 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 24 1993). Furthermore, greater weight is due to the “opinion of a specialist about 25 medical issues related to his or her area of specialty.” 20 C.F.R. § 404.1527(c)(5); 26 Revels, 874 F.3d at 654. This the ALJ did not do. 27 While Drs. Fang, DeYoung, Venter and Ms. Schrader were Plaintiff’s treating 28 and examining practitioners who personally treated and/or evaluated her mental 1 impairments, the ALJ rejected their opinions as unpersuasive. [AR 18, 20, 22.] 2 Instead, the ALJ gave greater weight to the opinions of the non-examining 3 physicians who had no personal interaction with Plaintiff. [AR 23.] However, 4 without clear and convincing evidence, the ALJ should have given the least weight 5 to non-examining physicians’ opinions, rather than discounting the opinions of 6 Plaintiff’s treating and examining physicians. See Andrews v. Shalala, 53 F.3d 7 1035, 1040-41 (9th Cir. 1995) (observing that more weight is given to the treating 8 physician’s opinion than the opinion of a nontreating physician because a treating 9 physician is employed to cure and has a greater opportunity to know and observe the 10 patient as an individual); Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) 11 (discussing that the conclusion of a non-examining physician is entitled to less 12 weight than the conclusion of an examining physician (citing Gallant v. Heckler, 13 753 F.2d 1450, 1454 (9th Cir. 1984)). 14 Here, the ALJ’s reliance on the opinion of physicians who neither treated nor 15 examined Plaintiff over an examining physician and the reports of several treating 16 physicians was not based on substantial evidence. As a result, the ALJ erred in 17 weighing the evidence here and remand is warranted. 18 B. Remaining Arguments 19 Plaintiff also challenges the ALJ’s credibility finding. Because the matter is 20 being remanded for further proceedings, the Court will not reach this argument. 21 However, on remand, if Plaintiff’s testimony regarding her subjective complaints is 22 discredited, the ALJ must, in the absence of affirmative evidence showing that 23 Plaintiff malingering, set forth clear and convincing reasons for rejecting Plaintiff’s 24 testimony. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th 25 Cir.1999). 26 /// 27 /// 28 /// 1 V. CONCLUSION 2 The decision of whether to remand for further proceedings or order an 3 immediate award of benefits is within the district court’s discretion. Harman v. 4 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 5 served by further administrative proceedings, or where the record has been fully 6 developed, it is appropriate to exercise this discretion to direct an immediate award 7 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 8 turns upon the likely utility of such proceedings”). But when there are outstanding 9 issues that must be resolved before a determination of disability can be made, and it 10 is not clear from the record the ALJ would be required to find the claimant disabled 11 if all the evidence were properly evaluated, remand is appropriate. Id. 12 Here, the Court finds that remand is appropriate because the circumstances of 13 this case suggest that further administrative review could remedy the ALJ’s errors. 14 See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 15 determination, the proper course is remand for additional agency investigation or 16 explanation, “except in rare circumstances”); Treichler v. Comm’r of Soc. Sec. 17 Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is 18 inappropriate where “there is conflicting evidence, and not all essential factual 19 issues have been resolved”); Harman, 211 F.3d at 1180-81. The Court has found 20 that the ALJ erred by failing to provide specific and legitimate reasons for 21 discounting the treating and examining opinions. Therefore, Plaintiff’s entitlement 22 to benefits remains unclear and remand for further administrative proceedings would 23 be useful. 24 For all of the foregoing reasons, IT IS ORDERED that: 25 (1) the decision of the Commissioner is REVERSED and this matter 26 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 27 administrative proceedings consistent with this Memorandum Opinion and 28 Order; and 1 (2) Judgment be entered in favor of Plaintiff. 2 3 IT IS SO ORDERED.

5 || DATED: August 12, 2020 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17