Encinas v. Astrue

Filing 19

ORDER that Defendant's decision denying benefits is reversed. This case is remanded for an award of benefits. Signed by Judge David G Campbell on 4/30/12. (LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jesus Encinas, Jr., Plaintiff, 10 11 12 No. CV11-01063-PHX-DGC ORDER vs. Michael J. Astrue, Commissioner of Social Security, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 Plaintiff Jesus Encinas, Jr. filed an application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) on June 6, 2007, alleging a disability onset date of January 12, 2007. Tr. 146-52. After an administrative hearing on April 16, 2010 (Tr. 25-64), the administrative law judge (“ALJ”) denied Plaintiff’s claims on April 22, 2010 (Tr. 12-24). On March 29, 2011, the Appeals Council denied Plaintiff’s request for review (Tr. 1-6), making the ALJ’s decision the final decision of Defendant for the purposes of judicial review. See 20 C.F.R. § 422.210(a). Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). Doc. 14. For the reasons that follow, the Court will reverse Defendant’s decision and remand the case for an award of benefits.1 25 26 27 28 1 Plaintiff’s request for oral argument (Docs. 14, 18) is denied because the issues are fully briefed and argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 I. Background. 2 A. Summary of Medical Evidence. 3 Plaintiff was born on February 11, 1973 (Tr. 150) and testified that he completed 4 the ninth grade (Tr. 29).2 He has worked as a warehouse delivery person and as a 5 security guard. Tr. 30. On October 20, 2006, Plaintiff received treatment at Maricopa 6 Integrated Health System. He was diagnosed with uncontrolled diabetes, depression, 7 non-compliance, and domestic violence. Tr. 325. He was subsequently referred for a 8 psychological evaluation. Tr. 676. 9 In January 2007, Plaintiff went to the emergency room and reported low back pain 10 for the past one or two days. Tr. 423. He was assessed with a pinched nerve in his back, 11 and was prescribed narcotic medication. Tr. 284. A January 12, 2007 x-ray found 12 bilateral spondylolysis at the L5 level with Grade I spondylolisthesis of L5 on S1, mild to 13 moderate disc space narrowing at the L5-S1 level, no destructive bony lesion, and no 14 acute fracture or subluxation. 15 spondylolisthesis on L5 of S1, and protrusion of disc material and moderate narrowing of 16 the spinal canal. Tr. 587-88. On February 13, 2007, a health care provider opined that 17 Plaintiff should limit sitting to eight hours per day, and should not lift, pull, or push more 18 than 10 pounds. Tr. 287-90. Tr. 688. A January 18, 2007 MRI showed Grade I 19 During this time period, Plaintiff had elevated blood sugar. He stated that he did 20 not regularly check his blood sugar at home. A health care provider adjusted his diabetes 21 medication and ordered a new glucometer for home use. Tr. 577, 653. Plaintiff and his 22 wife were advised about insulin shots, diet, and exercise as means of treating diabetes, 23 and a care provider noted that they verbalized good understanding. Tr. 560-62. 24 On February 21, 2007, Plaintiff received treatment from Dr. Ehab Abdalah at 25 West Valley Orthopedics. Plaintiff reported that pain started on January 12, 2007, when 26 he fell at home. He used a can for walking due to the pain, and wanted to go back to 27 2 28 Tr. 174. Plaintiff’s disability report indicates that he completed the eleventh grade. -2- 1 work. He reported tingling and numbness to his lower back, and prolonged history of 2 diabetic neuropathy. Tr. 526-27. On examination, Plaintiff had tenderness and reduced 3 range of motion in his lower back, reduced sensation, and rated 4+/5 on motor skills. Id. 4 at 527. Dr. Abdallah diagnosed Plaintiff with acute low back pain, spondylosis, and 5 spondylisthesis, and prescribed physical therapy and medication. Id. 6 Plaintiff attended physical therapy from March 6, 2007 through July 12, 2007. In 7 May 2007, Plaintiff reported improvement and the physical therapist noted good progress 8 toward his goals. Tr. 371-72, 373-74. He had significant bilateral hamstring and hip 9 flexor tightness, reduced range of motion in his lumbar spine, hypermobility at L2-L5 10 with decreased lumbar spine lordosis, and bilateral lumbar spine paraspinal tightness. 11 Tr. 710, 712, 714. At the time of Plaintiff’s discharge from physical therapy, he had only 12 partially improved and had not fully returned to his prior functional level, had achieved 13 75% of his functional goals, and his physical therapist released him to return to work 14 without restrictions. Tr. 704. 15 On May 4, 2007, Plaintiff was treated at Chicanos Por La Causa, Inc. Behavioral 16 Health Services (“CLPC”). Tr. 271. He reported that his best friend died the year before, 17 that his wife recently cheated on him, and that he has had problems managing his anger 18 since these incidents. Id. He said that he worked outside and did yard work “in order to 19 take his mind off of things,” and that “this help[ed] him think of his actions.” Id. He 20 reported having attempted suicide by not taking his diabetic pills. Tr. 394. Plaintiff was 21 rated a global assessment function score of 61, indicating mild symptoms. Tr. 396-98, 22 812-13. Later that month, Plaintiff had improved symptoms and a more stable mood. 23 Tr. 414. 24 In June 2007, Plaintiff stated that he could not sustain prolonged physical activity 25 because his left leg becomes stiff and his back starts to “feel heavy.” Tr. 178. He 26 sometimes had trouble putting on his pants due to difficulty bending over and keeping his 27 balance. Tr. 182. He handles his own finances, prepares his own meals, takes out the 28 trash, cleans up, and shops for groceries once a week. Tr. 184-87. He likes to “fix -3- 1 things” as a hobby. Tr. 189. He estimated that he could walk for an hour before having 2 to rest, stand and sit for less than an hour, occasionally bend, frequently lift 10 pounds, 3 occasionally lift 20 pounds, and occasionally reach his arms up and out. Tr. 179. 4 At a July 24, 2007 follow-up visit with Dr. Abdalah, Plaintiff reported that his 5 pain had not improved with physical therapy and that his pain now radiated to his left leg 6 with numbness and tingling. Tr. 525. 7 At the request of the Social Security Administration (“SSA”), Plaintiff attended a 8 psychological examination with Dr. Armando A. Bencomo on August 16, 2007. Tr. 438- 9 43. Dr. Bencomo diagnosed him with depressive disorder, adjustment disorder, mixed 10 learning disorder by history, and mild stuttering. Tr. 441. Plaintiff was described as 11 “depressed and situationally anxious,” with poor short term memory. Id. “Psychiatric 12 functional limitations which would affect his ability to work include: difficulty 13 remembering and following directions; inconsistent energy and motivation affecting 14 attendance and punctuality; [and] difficulty communicating effectively in a stressful 15 situation due to stuttering.” Id. 16 In August 2007, Plaintiff also saw Dr. William Holland for a physical examination 17 at the request of the SSA. Tr. 444-50. The only pain Plaintiff was experiencing was 18 related to his feet and lower back. Tr. 444. He walked with a shuffling, slightly wide- 19 based gait, and was able to go from lying to sitting and to get off of the examination table 20 without assistance. Tr. 445. He could perform a 90-degree bend and assume an upright 21 position without difficulty, and was able to do a full squat and stand without assistance or 22 difficulty. Id. He could not jump. Id. He had 4/5 strength in his legs and 5/5 strength in 23 his hands and arms. Id. Dr. Holland assessed Plaintiff with diabetes and lower back pain 24 by history. Id. Dr. Holland opined that Plaintiff could lift and carry 20 to 40 pounds 25 occasionally and 10 to 15 pounds frequently; sit, stand, and walk without limitation; 26 frequently stoop, kneel, crouch, crawl, and climb ramps and stairs, occasionally climb 27 ladders, and never climb scaffolds. Tr. 447. 28 Around this time, Plaintiff returned to Dr. Abdalah with reports of pain radiating -4- 1 into his left leg with numbness and tingling, and asserted that his symptoms had not 2 improved with physical therapy. Tr. 525. An August 17, 2007 MRI showed abnormal 3 positioning of a vertebrae in Plaintiff’s lower back (anterolisthesis) and a slight disc 4 extrusion. Tr. 517. The record reflects one note from Dr. Abdalah stating that Plaintiff 5 could not return to work (Tr. 516), but another note dated the same day stating that 6 Plaintiff could return to work with restrictions, such as no lifting over 15 pounds and no 7 bending, squatting, or continuous standing or waking (Tr. 533). In November 2007, 8 Dr. Abdalah administered the first in a series of epidural steroid injections. Tr. 530-31. 9 Plaintiff continued to receive diabetes treatment at Maricopa Integrated Health 10 System through May 2008. Tr. 302-03, 305-06, 548-49, 551-52, 555-56, 558-59, 568-69, 11 616, 620, 628-29. Sometimes his blood sugars were noted as uncontrolled, while at other 12 times the care providers noted that his diabetes was “doing well” with treatment. See, 13 e.g., Tr. 302, 548, 558. In May 2008, nerve conduction studies indicated peripheral 14 neuropathy in Plaintiff’s left leg. Tr. 777-79. 15 On May 3, 2008, Dr. John Prieve conducted a consultative examination of 16 Plaintiff. Dr. Prieve opined that Plaintiff could lift 20 pounds occasionally and 10 pounds 17 frequently; stand or walk for two to four hours and sit for four hours “intermittently” 18 during an eight-hour day; occasionally stoop, kneel, crouch, crawl, and climb ramps and 19 stairs; and never climb ladders, ropes, or scaffolds. Tr. 598-602. 20 Plaintiff continued to treat his pain through appointments with Dr. Abdalah in 21 June and July 2008. Dr. Abdalah noted that Plaintiff was stable on his medication. 22 Tr. 767. Plaintiff reported “some relief” from treatment in August and September 2008. 23 Tr. 765. Plaintiff also continued to receive counseling at CLPC through the summer of 24 2008. He attended some counseling appointments, but often did not appear for his 25 appointments as scheduled. Tr. 415-17, 780-815. He was discharged from treatment at 26 CLPC for lack of contact with his provider. See Tr. 780. 27 On October 22, 2008, Plaintiff met with Dr. Raymond Valdivia to obtain care for 28 his diabetes. Dr. Valdivia noted that Plaintiff was employed as a mechanic’s assistant. -5- 1 Plaintiff had stiffness in his hands, neuropathy in his left leg and foot, and discomfort in 2 his lower back. 3 recommended over the counter medication and exercises for his back. Tr. 826. Dr. Valdivia provided Plaintiff with insulin for his diabetes and 4 In mid June 2009, Plaintiff reported increased back pain after slipping and falling 5 at home. Tr. 732, 735-36. A June 18, 2009 MRI of his lower back showed, among other 6 things, a burst fracture of the T12 vertebrae (Tr. 752, 775-76), and Dr. Abdalah referred 7 Plaintiff to a spine surgeon. Tr. 752. 8 On July 29, 2009, Plaintiff sought an evaluation of his back from Dr. Edward 9 Song. Dr. Song diagnosed a T12 compression fracture, a herniated disc at L4-5, and 10 spondylolisthesis with L5 deformation at L5-S1. He ordered tests and instructed Plaintiff 11 to return after testing was completed. Tr. 738-52. 12 Dr. Valdivia continued to treat Plaintiff between late 2008 and early 2010. His 13 treatment notes indicate that Plaintiff’s diabetes was poorly controlled. Tr. 816-20, 822. 14 In May 2009, Dr. Valdivia assessed Plaintiff with depression related to chronic back pain 15 and made a counseling appointment for him. Tr. 822. In September 2009, Dr. Valdivia 16 noted that Plaintiff was “currently not working.” 17 Dr. Valdivia noted that Plaintiff had an abscess on the bottom of his left foot. Tr. 818. In 18 January 2010, Plaintiff admitted that he had not been compliant in terms of his diet, and 19 that he had been consuming high calorie foods, soda pop, alcohol, and sweets. Tr. 817. 20 Dr. Valdivia observed that Plaintiff had not followed up with Dr. Song or with 21 Dr. Valdivia’s prior referral to counseling. Tr. 816. Tr. 819. In December 2009, 22 On February 9, 2010, Plaintiff was treated at West Valley Hospital for dyspnea on 23 exertion. An echocardiogram revealed severely depressed LV function, and a heart 24 catheterization revealed moderate pulmonary hypertension and a dilated left ventricle 25 with severely depressed LV systolic function. He was not discharged until February 20, 26 2010. Tr. 833-34. 27 B. Hearing Testimony. 28 During the April 16, 2010 administrative hearing, state agency psychologists -6- 1 B. Hurwitz and Mark Stevenson reviewed the record and opined that Plaintiff retained the 2 ability to do unskilled work. Tr. 497-99, 502, 596. State agency physicians Y. Shetty, 3 R. Levy, and Ernest Griffith reviewed the record and opined that Plaintiff retained the 4 ability to do light work. Tr. 454, 456, 473-80, 603. 5 Plaintiff’s counsel noted that Plaintiff had recently been hospitalized due to 6 pneumonia, and that “obviously these are impairments that have not yet been in existence 7 for 12 months, and his disability’s premised on his back pain and his diabetes.” Tr. 39. 8 Plaintiff testified that he experienced back pain “all the time” and that physical 9 therapy and injections had not helped. Tr. 31. The pain travels down both legs, but is 10 worse on the left. Tr. 30-31. He said that his blood sugar levels were controlled by 11 insulin. 12 concentrating and remembering “[o]nce in a while.” Tr. 34. He can stand or sit for thirty 13 minutes at a time before having to change positions due to pain in his lower back and 14 legs. Tr. 35-36. He wakes up at night because of the pain. Id. He naps twice daily. 15 Tr. 37. He testified that he cannot perform a job where he could sit, stand, and walk 16 around and never had to lift more than ten pounds due to problems with walking, sitting, 17 and concentrating. Tr. 42. He can drive short distances (Tr. 44), and his mother and son 18 do most of the household chores (Tr. 46-47). He uses a cane on occasion. Tr. 52-53. 19 Plaintiff said that he stopped taking antidepressant medication because he “was taking too 20 many pills at once.” Tr. 35. He admitted that he was not attending counseling. Tr. 49. 21 Despite his prior report of playing video games with his children and occasionally using a 22 computer, Plaintiff asserted that he did not know how to play video games or use a 23 computer. Compare Tr. 189, 430 with Tr. 50-51. Tr. 32-33. He isolates himself because of depression and has difficulty 24 Vocational expert Sandra Richter testified in response to a series of hypothetical 25 questions from the ALJ. Richter testified that an individual who could do sedentary work 26 with occasional postural limitations and no climbing of ladders, ropes, or scaffolds could 27 perform the unskilled sedentary work of a production worker or office clerk. Tr. 56-57. 28 Richter testified that an additional requirement that the hypothetical individual be able to -7- 1 sit or stand at will would eliminate both of those positions. Tr. 57. The ALJ then added 2 mental limitations, and Richter testified that these mental limitations would preclude 3 semi-skilled work. Tr. 58-59. Upon examination by Plaintiff’s counsel, Richter testified 4 that an individual with Plaintiff’s mental and physical limitations would not be able to 5 perform his past work and that there would be no other work that such an individual 6 could sustain. Tr. 60-62. 7 On April 22, 2010, the ALJ issued her decision. Tr. 15-24. She concluded that 8 Plaintiff did not have an impairment or combination of impairments that met or medically 9 equaled one of the impairments listed in 20 C.F.R. § 404 (Tr. 18), that Plaintiff is unable 10 to perform any past relevant work (Tr. 22), that there are jobs that exist in significant 11 numbers in the national economy that Plaintiff can perform (Tr. 23), and that Plaintiff has 12 not been under a disability, as defined in the Social Security Act, from January 12, 2007 13 through the date of the ALJ’s decision (Tr. 23). 14 C. Post-Hearing Developments. 15 On January 9, 2011, the SSA approved Plaintiff’s subsequent application for 16 benefits with an alleged onset date of April 23, 2010 (one day after the ALJ issued her 17 decision). Doc. 14, at 10. The only issue needing resolution in the instant matter is 18 Plaintiff’s disability during the period of January 12, 2007 (the original alleged disability 19 onset date) to April 22, 2010 (the date of the ALJ’s decision). Id. 20 II. Standard of Review. 21 Defendant’s decision to deny benefits will be vacated “only if it is not supported 22 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 23 466 F.3d 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere 24 scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind 25 might accept as adequate to support a conclusion.” Id. To determine whether substantial 26 evidence supports Defendant’s decision, the Court must review the administrative record 27 as a whole, weighing both the evidence that supports the decision and the evidence that 28 detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is -8- 1 sufficient evidence to support Defendant’s determination, the Court cannot substitute its 2 own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 3 III. Analysis. 4 Plaintiff claims that the ALJ erred by (1) failing to articulate sufficient reasons for 5 rejecting Plaintiff’s subjective complaints, (2) failing to properly weigh medical source 6 opinion evidence, (3) finding that Plaintiff’s depression was not severe, and (4) setting 7 forth a deficient residual functional capacity (“RFC”). Doc. 14, at 12-24. Plaintiff asks 8 the Court to remand his case for a computation of benefits. Id. at 24. 9 A. Plaintiff’s Subjective Complaints. 10 To determine whether a claimant’s testimony regarding subjective pain or 11 symptoms is credible, the ALJ must engage in a two-step analysis. “First, the ALJ must 12 determine whether the claimant has presented objective medical evidence of an 13 underlying impairment ‘which could reasonably be expected to produce the pain or other 14 symptoms alleged.’ The claimant, however, ‘need not show that [his] impairment could 15 reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need 16 only show that it could reasonably have caused some degree of the symptom.’” 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1036-37 (9th Cir. 2007) (citations omitted). 18 “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the 19 ALJ can reject the claimant’s testimony about the severity of [his] symptoms only by 20 offering specific, clear and convincing reasons for doing so.’” Id. at 1037 (citations 21 omitted). 22 At the first step, the ALJ found that Plaintiff’s medically determinable 23 impairments “could reasonably be expected to cause some of the alleged symptoms[.]” 24 Tr. 19. Defendant does not dispute that Plaintiff has physical limitations, and recognizes 25 that the ALJ found that he should be limited to a reduced range of sedentary work. 26 Doc. 17, at 12; Tr. 19. Given that there is no dispute that Plaintiff’s impairments could 27 reasonably produce the alleged symptoms, and because there is no evidence of 28 malingering, the ALJ was required to present “specific, clear and convincing reasons” for -9- 1 her adverse credibility finding. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 2 1996). Plaintiff claims that the ALJ erred in the second step by finding that his assertions 3 were not credible without sufficient specificity and explanation to satisfy the “clear and 4 convincing” standard. See Doc. 14, at 15-16 (“The ALJ did not explain which symptoms 5 could reasonably be caused by [Plaintiff’s] medically determinable impairments nor did 6 she specify which of [Plaintiff’s] statements were not credible. Federal courts have 7 repeatedly criticized such generalized credibility findings.”). 8 “In weighing a claimant’s credibility, the ALJ may consider his reputation for 9 truthfulness, inconsistencies either in his testimony or between his testimony and his 10 conduct, his daily activities, his work record, and testimony from physicians and third 11 parties concerning the nature, severity, and effect of the symptoms of which he 12 complains.” Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); see Smolen, 80 13 F.3d at 1284; Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995). The ALJ gives the 14 following reasons for her adverse credibility finding: the objective medical evidence does 15 not corroborate the severity of Plaintiff’s symptom testimony, the level of treatment 16 Plaintiff received does not correspond to his allegations, records indicate that Plaintiff 17 worked as a mechanic’s assistant in October 2008 despite his testimony that he had not 18 worked since 2007, and Plaintiff was able to sit for nearly an hour at his administrative 19 hearing without appearing to be in pain or requesting permission to stand. Tr. 21-22. 20 1. Medical Evidence and Level of Treatment. 21 “Once a claimant produces objective medical evidence of an underlying 22 impairment, an ALJ may not reject a claimants subjective complaints based solely on 23 lack of objective medical evidence to fully corroborate the alleged severity of pain.” 24 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (citation and alterations omitted); 25 see Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (“The claimant need not 26 produce objective medical evidence of the pain . . . itself, or the severity thereof. Nor 27 must the claimant produce objective medical evidence of the causal relationship between 28 the medically determinable impairment and the symptom.”) (citing Bunnell v. Sullivan, - 10 - 1 947 F.2d 341, 345-48 (9th Cir. 1991) (en banc)); 20 C.F.R. ' 404.1529(c)(2) (“[W]e will 2 not reject your statements about the intensity and persistence of your pain or other 3 symptoms or about the effect your symptoms have on your ability to work solely because 4 the objective medical evidence does not substantiate your statements.”). 5 subjective pain testimony cannot be rejected on the sole ground that it is not fully 6 corroborated by objective medical evidence, the medical evidence is still a relevant factor 7 in determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 8 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). “While 9 Plaintiff argues that, notwithstanding the fact that the ALJ may not discredit his 10 pain testimony solely based on lack of corroborating medical evidence, his complaints 11 are substantiated by an MRI, nerve conduction studies, physical examinations, and 12 medical findings. Doc. 14, at 16-17. See, e.g., Tr. 755 (a 2009 MRI follow-up at which 13 Plaintiff indicated “lower back pain” as his chief complaint and complained of “even 14 more pain,” yet also noted that his pain had been relieved by medication); Tr. 777 (nerve 15 conduction study on May 22, 2008 noting “low back pain, numbness and tingling in left 16 lower extremity for 2 [year] duration” in Plaintiff’s patient history); Tr. 636 (Maricopa 17 Integrated Health System progress note dated July 2, 2007 indicating that Plaintiff had 18 “low back pain”); Tr. 334-35 (a January 2007 physical examination indicating that 19 Plaintiff’s chief complaint was “back pain and leg pain”). Plaintiff also argues that, with 20 respect to the level of treatment he received, he has undergone numerous injections 21 without lasting relief and met with a spine specialist who advised that surgery was a 22 possibility but that there was only a fifty percent chance of improvement. Doc. 14, at 17. 23 In her decision, the ALJ states that “[t]he objective medical evidence, while 24 supportive of some level of impairment, simply does not corroborate the severity of 25 [Plaintiff’s] subjective reports nor does the level of treatment he has received correspond 26 to his allegations.” Tr. 21. Plaintiff was treated primarily with pain medication, which 27 indicated conservative treatment relative to his pain testimony. Tr. 21. While Plaintiff 28 testified to taking psychiatric medications at one time, the ALJ found no evidence in the - 11 - 1 record to establish this fact. Id. Rather, the ALJ found that “the record does not support 2 a finding that [Plaintiff’s] mental health issues were more than episodic reactions to life 3 stressors that have since resolved.” Tr. 21-22. Furthermore, Plaintiff failed to seek 4 further treatment for his back pain from Dr. Song. Tr. 21. The ALJ specifically notes 5 that Plaintiff “was not consistent in following his medical regimen regarding his diabetes 6 and as a result saw elevated blood sugars,” (Tr. 20), “Dr. Abdalah prescribed pain 7 medication and Elavil to help [Plaintiff] sleep,” (Tr. 20), “[t]here are no further records 8 from [Dr. Song] and his primary care physician’s records indicate that as of January 2010 9 [Plaintiff] has not seen Dr. Song again,” (Tr. 21), and “[Plaintiff’s] most recent treatment 10 has consisted of pain medications and medication to help him sleep” (Tr. 21). Where the 11 evidence is susceptible to more than one rational interpretation, the Court must uphold 12 the Defendant’s decision. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th 13 Cir. 2009) (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)). On this 14 basis, the Court accepts the inconsistency between the objective medical evidence and 15 Plaintiff’s testimony as a reason for the ALJ to discredit Plaintiff’s complaints. 16 2. Work History. 17 The ALJ reached an adverse credibility determination due in part to ambiguous 18 evidence in the record regarding Plaintiff’s work history. “[Plaintiff] testified that he last 19 worked in 2007, but his primary care provider’s records indicate he was working as a 20 mechanic’s assistant in October 2008.” Tr. 22. “There are no earnings recorded from 21 this employment,” so the ALJ did not consider it for purposes of assessing past relevant 22 work or substantial gainful activity, but noted that “assuming the doctor’s records are 23 accurate[,] it suggests [Plaintiff] was able to perform work related activities despite his 24 impairments.” Tr. 22; see Tr. 826 (October 22, 2008 treatment record from Dr. Valdivia 25 indicating that Plaintiff “is employed as a mechanic assistant”). 26 Defendant argues that this evidence further contradicts Plaintiff’s assertions of 27 extreme limitations in functioning. Doc. 17, at 15 (citing 20 C.F.R. § 404.1571 (“Even if 28 the work you have done was not substantial gainful activity, it may show that you are - 12 - 1 able to do more work than you actually did.”)). Plaintiff objects that Dr. Valdivia’s 2 reference to Plaintiff’s work as a mechanic’s assistant is uncorroborated and that the ALJ 3 erred by simply “assuming the doctor’s records are accurate[.]” Doc. 14, at 18 (quoting 4 Tr. 22). Plaintiff argues that the note “references his occupation and not [his] work 5 activity, and that because the ALJ had an opportunity to question Plaintiff about the 6 perceived discrepancy in the medical record but chose not to do so, she cannot now attack 7 his credibility on that point. Id. 8 The ALJ in a social security case has an independent “‘duty to fully and fairly 9 develop the record and to assure that the claimant’s interests are considered.’” Smolen, 10 80 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). 11 Ambiguous evidence, or the ALJ’s own finding that that the record is inadequate to allow 12 for proper evaluation of the evidence, triggers the ALJ’s duty to “conduct an appropriate 13 inquiry.” Smolen, 80 F.3d at 1288; Armstrong v. Comm’r of Soc. Sec. Admin., 160 14 F.3d 587, 590 (9th Cir. 1998) (concerning ambiguous disability onset date). The ALJ 15 may discharge this duty in several ways, including: subpoenaing the claimant’s 16 physicians, submitting questions to the claimant’s physicians, continuing the hearing, or 17 keeping the record open after the hearing to allow supplementation of the record. See 18 Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998); Smolen, 80 F.3d at 1288. 19 The ALJ clearly relied upon Dr. Valdivia’s note when discounting Plaintiff’s pain 20 testimony. Tr. 22. She did not specifically find that the note was ambiguous. In 21 Tonapetyan v. Halter, the ALJ likewise did not find that the evidence was ambiguous or 22 that he lacked sufficient evidence to render a decision. The Ninth Circuit nonetheless 23 concluded that the ALJ failed to develop the record fully and fairly because he relied 24 heavily on the testimony of a medical expert who did find the evidence ambiguous and 25 specifically recommended a more detailed report. Tonapetyan, 242 F.3d 1144, 1150 (9th 26 Cir. 2001). An ALJ’s duty to develop the record further is triggered only when there is 27 ambiguous evidence or when the record is inadequate to allow for proper evaluation of 28 the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing - 13 - 1 Tonapetyan, 242 F.3d at 1150). In Mayes, the Ninth Circuit concluded that the ALJ had 2 no duty to develop the record because the record “was neither ambiguous nor inadequate 3 to allow for proper evaluation of the evidence.” 4 Here, there is nothing to suggest that the ALJ would have reason to find ambiguity 5 in Dr. Valdivia’s notes, which unequivocally state with respect to Plaintiff: “He is 6 employed as a mechanic assistant.” Tr. 826. Furthermore, the ALJ did not rely on 7 Dr. Valdivia’s note to make a determination on Plaintiff’s overall disability, as in 8 Tonapetyan and Mayes, or to weigh the opinion of medical examiners, as in Smolen. 9 Instead, the ALJ properly noted the discrepancy between Dr. Valdivia’s note and 10 Plaintiff’s testimony as a basis for her adverse credibility finding. Tr. 22; see Light v. 11 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Plaintiff may not avoid the effect of 12 such discrepancies on his credibility by casting them as “ambiguous” and asking the ALJ 13 to resolve them. To the extent that Plaintiff argues that Dr. Valdivia’s note is ambiguous 14 because Plaintiff’s earnings record does not confirm the work activity (Doc. 14, at 18), 15 the ALJ acknowledged the lack of earnings record in her decision and accounted for it in 16 her credibility determination (Tr. 22). The Court accepts the inconsistency between 17 Dr. Valdivia’s note and Plaintiff’s testimony as a reason for the ALJ to discredit 18 Plaintiff’s complaints. 19 3. ALJ Observations. 20 The ALJ relied on her personal observations of Plaintiff during the April 16, 2010 21 administrative hearing. She noted that “claimant testified at the hearing that he is only 22 able to sustain sitting, standing or walking for half hour intervals before he needs to 23 change position, yet he sat through the hearing for nearly one hour without appearing to 24 be in pain or requesting that he be permitted to stand.” Tr. 22. 25 Plaintiff contends that the ALJ may not rely on her own observations to discredit 26 him when his testimony has been corroborated by objective evidence. Doc. 14, at 18. 27 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 28 expected to cause some of the alleged symptoms; however, the claimant’s statements - 14 - 1 concerning the intensity, persistence and limiting effects of these symptoms are not 2 credible to the extent they are inconsistent with the above residual functional capacity 3 assessment.” Tr. 19 (emphasis added). In Coats v. Heckler, the Ninth Circuit concluded 4 that “the ALJ improperly rejected the opinion of Coats’ doctor regarding the severity of 5 the impairment based upon his observations of the claimant’s behavior at the hearing. To 6 be sure, the ALJ could properly disregard Coats’ self-serving statements to the extent 7 they were unsupported by objective findings.” Coats v. Heckler, 733 F.2d 1338, 1340 8 (9th Cir. 1984). The Ninth Circuit has since clarified that the ALJ may rely on her own 9 observations as long as these observations are not the sole basis for discrediting 10 Plaintiff’s testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“The ALJ’s 11 observations of a claimant’s functioning may not form the sole basis for discrediting a 12 person’s testimony.”); Tonapetyan, 242 F.3d at 1148 (“Neither may the ALJ rely on his 13 own observations of the claimant at the hearing as the sole reason for rejecting the 14 claimant’s complaints.”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th 15 Cir. 1999) (“The inclusion of the ALJ’s personal observations does not render the 16 decision improper.”) (citation omitted). To the extent that some of Plaintiff’s complaints 17 are not supported by the medical evidence, the ALJ was not precluded from relying in 18 part on her own observations when weighing Plaintiff’s credibility. See Tr. 19. 19 Plaintiff also opposes the ALJ’s reliance on her own observations because the ALJ 20 “only viewed [Plaintiff] through a video conference and not in person,” but has not cited 21 any authority suggesting that observations made by video conference are prohibited. 22 Doc. 14, at 18. Plaintiff suggests that the video was not “particularly clear,” given that 23 the ALJ could not see scarring on Plaintiff’s arm when referred to by counsel at the 24 hearing. Doc. 14, at 19 n.8; Tr. 41. Plaintiff has not explained how he was prejudiced by 25 the teleconference or how an in-person hearing would have changed the credibility 26 determination, nor does he claim that the video was so unclear that the ALJ could not 27 accurately observe that he “sat through the hearing for nearly one hour.” Tr. 22. 28 In sum, the ALJ properly relied on the inconsistency between the objective - 15 - 1 medical evidence and Plaintiff’s pain testimony, the inconsistency in Plaintiff’s work 2 history, and Plaintiff’s appearance during the hearing, and has thus articulated “specific, 3 clear and convincing reasons” for her adverse credibility finding. Smolen v. Chater, 80 4 F.3d 1273, 1281 (9th Cir. 1996). The Court concludes that there is substantial evidence 5 to support the ALJ’s credibility determination. See Tonapetyan, 242 F.3d at 1148. 6 B. Weight Accorded to Dr. Bencomo’s Opinion. 7 Plaintiff argues that the ALJ failed to properly weigh medical source opinion 8 evidence. Doc. 14, at 20. 9 Dr. Bencomo’s opinion. Plaintiff specifically challenges the weight given to Id. at 21-22. Dr. Bencomo conducted a consultative 10 psychological examination of Plaintiff in August 2007. 11 Plaintiff with depressive disorder, adjustment disorder with anxiety, mixed learning 12 disorder by history, mild stuttering, avoidant traits, and insulin dependent diabetes with 13 neuropathy. 14 limitations that would affect his ability to work, including “difficulty remembering and 15 following directions, inconsistent energy and motivation affecting attendance and 16 punctuality, and difficulty communicating effectively in a stressful situation due to 17 stuttering.” Id. He also opined that Plaintiff would have mild limitations performing 18 simple job tasks; mild to moderate limitations performing within a schedule and 19 sustaining an ordinary routine without special supervision; and moderate to marked 20 limitations performing more complicated tasks, remembering and carrying out detailed 21 instructions, and responding appropriately to criticism.3 Tr. 442. At the administrative 22 hearing, the vocational expert testified that a hypothetical person with these restrictions 23 would not be able to perform any of Plaintiff’s past work or sustain any other work. 24 Tr. 59-60. 25 Tr. 438-42. He diagnosed Tr. 441. Dr. Bencomo opined that Plaintiff had psychiatric functional The reason the ALJ states for giving Dr. Bencomo’s opinion little weight was that 26 3 27 28 The ALJ describes Dr. Bencomo’s findings as “mild to moderate limitations performing more complicated tasks, responding to criticism from supervisors and adapting to stressful situations.” Tr. 20. However, the record indicates that Dr. Bencomo felt Plaintiff would be “moderately to markedly limited” in these respects. Tr. 442. - 16 - 1 “it was authored in 2007 and does not reflect the progress [Plaintiff] made in counseling, 2 nor the fact that as of June 2008 [Plaintiff] no longer needed counseling.” Tr. 20. The 3 Ninth Circuit has explained that conclusory reasons will not justify an ALJ’s rejection of 4 a medical opinion. 5 objective findings or are contrary to the preponderant conclusions mandated by the 6 objective findings does not achieve the [required] level of specificity[.] The ALJ must do 7 more than offer his own conclusions. [She] must set forth [her] own interpretations and 8 explain why they, rather than the doctors’, are correct.” Regennitter v. Comm’r of Soc. 9 Sec., 166 F.3d 1294, 1299 (9th Cir. 1999) (quoting Embrey v. Bowen, 849 F.2d 418, 421- 10 “To say that medical opinions are not supported by sufficient 22 (9th Cir. 1988)). 11 Plaintiff argues that the ALJ improperly discredited Dr. Bencomo’s examination 12 “simply by alleging that [Plaintiff] improved subsequent to the evaluation.” Doc. 14, 13 at 22. While the fact that Plaintiff improved subsequent to Dr. Bencomo’s evaluation 14 may not “invalidate [his] findings on the day of the evaluation” (Doc. 14, at 22), such 15 improvement may be a basis for the ALJ to give less weight to the opinion. But the ALJ 16 did not cite evidence in the record she relied on to conclude that Plaintiff’s mental health 17 had improved. As a result, the ALJ has not articulated sufficiently specific reasons for 18 discounting Dr. Bencomo’s opinion. The Court independently notes a May 24, 2007 19 CPLC client progress note indicating that Plaintiff “reports less DTO tendencies and 20 mood appears more stable in session.” Tr. 809. The CPLC therapist observed that 21 Plaintiff’s “[s]table mood may be due to rapport building” with the therapist. Id. Other 22 CPLC progress notes indicate that Plaintiff “appears motivated and willing to seek 23 treatment.” Tr. 808. He was sometimes “engaged” in the counseling sessions (Tr. 789, 24 792, 803, 807) and other times “tearful” during the sessions (Tr. 808). Several of the 25 progress notes indicate that Plaintiff had a “depressed” mood. Tr. 803, 807, 808. This 26 Circuit has made clear that an ALJ’s rejection of testimony is in error and not supported 27 by substantial evidence where the ALJ has “selectively focused on aspects of [medical 28 records] which tend to suggest non-disability[.]” Edlund v. Massanari, 253 F.3d 1152, - 17 - 1 1159 (9th Cir. 2001); see Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) 2 (finding that the ALJ erred by relying on selective portions of the doctor’s treatment 3 notes and failing to read his statements in the “context of the overall diagnostic picture he 4 [drew]”). The Court cannot determine whether the ALJ selectively relied on the medical 5 evidence because she has not set forth the relevant evidence she considered. 6 Additionally, the record indicates that Plaintiff was terminated from CPLC not 7 because he “no longer needed counseling” as the ALJ found (Tr. 20), but because he 8 failed to make contact with the agency (Tr. 780). 9 “attendance at counseling was sporadic,” that he “missed several appointments between 10 October 2007 and January 2008,” and that he was ultimately discharged from treatment 11 in June 2008 for lack of contact with his provider. Tr. 19-20. Plaintiff’s abandonment of 12 counseling is not at odds with his depression diagnosis. See Nguyen v. Chater, 100 F.3d 13 1462, 1465 (9th Cir. 1996) (“[I]t is a questionable practice to chastise one with a mental 14 impairment for the exercise of poor judgment in seeking rehabilitation.”) (quotation 15 omitted); Tr. 808 (“[Plaintiff] has support from family and friends but[] feels 16 embarrassed since they know what happened.”). The ALJ notes that Plaintiff’s 17 The Court concludes that the ALJ’s reasons for rejecting Dr. Bencomo’s opinion 18 are insufficient under Ninth Circuit law. The ALJ did not specify the evidence upon 19 which she relied, making it impossible to understand the precise reasons for her 20 conclusion and to assess whether she selectively considered the evidence. 21 C. Plaintiff’s Mental Impairment. 22 Whether a claimant is disabled is determined using a five-step sequential 23 evaluation process. The claimant bears the burden in steps one through four. 24 establish disability the claimant must show (1) he is not currently working, (2) he has a 25 severe medically determinable physical or mental impairment, and (3) the impairment 26 meets or equals a listed impairment or (4) his residual functional capacity (RFC) 27 precludes him from performing his past work. 20 C.F.R. § 416.920(a). At step five, the 28 Commissioner bears the burden of showing that the claimant has the RFC to perform - 18 - To 1 other work that exists in substantial numbers in the national economy. Id. 2 Defendant submits that whether the ALJ found Plaintiff’s depression to be a 3 severe impairment at step two “is not legally relevant since the ALJ proceeded beyond 4 step two of the sequential evaluation and assessed Plaintiff’s residual functional capacity 5 between steps three and four.” Doc. 17, at 20. The regulations provide: “[a]t the second 6 step, [the ALJ] consider[s] the medical severity of [Plaintiff’s] impairment(s). If [he] 7 do[es] not have a severe medically determinable physical or mental impairment that 8 meets the duration requirement in § 404.1509, or a combination of impairments that is 9 severe and meets the duration requirement, [the ALJ] will find that [Plaintiff is] not 10 disabled.” 20 C.F.R. § 404.1520(a)(4)(ii). Because the ALJ found that Plaintiff’s mental 11 impairment were not severe at step two (Tr. 17-18), she did not need to proceed to the 12 remaining steps on that ground. She did, however, find that Plaintiff had the following 13 severe impairments: degenerative disc disease of the lumbar spine, peripheral neuropathy, 14 diabetes, T12 fracture, and Grade I spondylolisthesis. Tr. 17. Therefore, she properly 15 continued the five-step sequential evaluation process on those grounds. The Court cannot 16 agree, however, with Defendant’s assertion that the ALJ’s “nonsevere” rating of 17 Plaintiff’s mental impairment is not legally relevant simply because the ALJ proceeded 18 with the five-step evaluation on other grounds; her findings at step two inform the 19 remainder of the analysis. “If an ALJ finds a severe impairment at step two, that 20 impairment must be considered in the remaining steps of the sequential analysis.” Bray 21 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). The Court will not 22 disregard the ALJ’s analysis at step two simply because she proceeded to conduct a 23 residual functional capacity assessment. 24 The Court must determine whether the ALJ properly found that Plaintiff’s mental 25 impairment was nonsevere at step two. Plaintiff contends that the ALJ erred by using the 26 factors applied at step three to assess whether a claimant has a presumptively disabling 27 impairment that meets or equals one of the listed impairments, instead of the factors used 28 at step two to assess whether a claimant has established a severe impairment. Doc. 14, - 19 - 1 at 23-24. At step two, Plaintiff argues that the de minimis standard described in Smolen 2 should apply: 3 4 5 6 7 8 9 [T]he ALJ must consider the combined effect of all of the claimant’s impairments on [his] ability to function, without regard to whether each alone was sufficiently severe. Also, [the ALJ] is required to consider the claimant’s subjective symptoms, such as pain or fatigue, in determining severity. Finally, the step-two inquiry is a de minimis screening device to dispose of groundless claims. An impairment or combination of impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual[’]s ability to work.’” 10 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citations omitted). Defendant 11 responds that the ALJ properly considered the four areas of mental functioning in 12 evaluating Plaintiff’s mental impairments: activities of daily living; social functioning; 13 concentration, persistence, or pace; and episodes of decompensation. Doc. 17, at 20, n.8; 14 see 20 C.F.R. §§ 404.1520a(c)(2)-(3). Defendant contends that the ALJ’s discussion of 15 these four functional areas does not indicate that she applied the wrong standard. 16 Doc. 17, at 20 n.8; see Tr. 17-18. 17 The Court finds no evidence in the relevant regulation indicating that the four 18 functional areas may be applied to step three but not to step two. The de minimis 19 standard set forth in Smolen reflects the language of the regulation: “If we rate the degree 20 of your limitation in the first three functional areas as ‘none’ or ‘mild’ and ‘none’ in the 21 fourth area, we will generally conclude that your impairment(s) is not severe, unless the 22 evidence otherwise indicates that there is more than a minimal limitation in your ability 23 to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1) (emphasis added). The ALJ 24 concluded that because Plaintiff’s medically determinable mental impairment causes no 25 more than “mild” limitation in the first three functional areas, and there were no episodes 26 of decompensation of extended duration, his mental impairment is “nonsevere.” Tr. 18. 27 This was the proper analysis. 28 Finally, Plaintiff reiterates his argument that the ALJ should not have discounted - 20 - 1 Dr. Bencomo’s opinion. Doc. 14, at 24. The ALJ did not, as Defendant claims, discount 2 Dr. Bencomo’s opinion because it was “contradicted by the treatment record” (Doc. 17, 3 at 22), but because “it was authored in 2007 and does not reflect the progress [Plaintiff] 4 made in counseling, nor the fact that as of June 2008 [Plaintiff] no longer needed 5 counseling.” Tr. 20. See 20 C.F.R. § 404.1527(d)(4) (“Generally, the more consistent an 6 opinion is with the record as a whole, the more weight we will give to that opinion.”). 7 For the reasons previously discussed, the Court finds that the ALJ has not articulated 8 substantial reasons for giving little weight to Dr. Bencomo’s opinion. The ALJ addressed 9 Dr. Bencomo’s opinion in the context of her RFC analysis (see Tr. 19-20), and it is 10 unclear how much the fact that she discounted his opinion affected her determination at 11 step two that Plaintiff’s mental impairment was nonsevere. 12 13 D. RFC Determination. 1. Sit/Stand Option. 14 The ALJ gave “considerable weight” to the consultative examiners, Drs. Holland 15 and Prieve, and the reviewing physician, Dr. Shetty, but did not adopt their opinions in 16 their entirety. Tr. 21. The ALJ did, however, “adopt[] the limits contained in the 17 opinions as stated.” Id. Dr. Holland opined that Plaintiff would be limited to lifting 20 to 18 40 pounds occasionally, 10 to 15 pounds frequently, standing/walking 6-8 hours and 19 sitting 6-8 hours during an 8-hour work day, occasionally climbing stairs and ramps, and 20 never climbing ropes, ladders, or scaffolds. Id. Dr. Prieve opined that Plaintiff would be 21 limited to lifting/carrying 20 pounds occasionally, 10 pounds frequently, standing/ 22 walking 2-4 hours and sitting 4 hours in an 8-hour work day, occasionally climbing stairs 23 or ramps, stooping, kneeling, crouching, and crawling, and never climbing ropes, ladders, 24 or scaffolds. Id. Dr. Shetty’s opinion essentially mirrors Dr. Prieve’s aside from an 25 increase in Plaintiff’s ability to stand and walk to 6 hours in an 8-hour work day. Id. The 26 ALJ concluded that Plaintiff has an RFC that allows him to perform “less than the full 27 range of sedentary work[.]” Tr. 19. 28 Plaintiff does not dispute the weight given to the opinions of Drs. Holland, Prieve, - 21 - 1 and Shetty, but argues that “[s]uch an RFC necessitates the need for a sit/stand option, 2 since the individual would only sit or stand/walk intermittently throughout the day.” 3 Doc. 14, at 20-21. At the administrative hearing, the ALJ asked the vocational expert 4 whether there were jobs that existed in the economy at the sedentary, unskilled level. 5 Tr. 56-57. The vocational expert responded that a production worker and office clerk 6 were two examples of such sedentary, unskilled jobs. Id. The ALJ then asked whether 7 the addition of a sit/stand option would eliminate those two jobs, and the vocational 8 expert said that it would. Tr. 57. The vocational expert testified that there would be no 9 jobs at a sedentary, unskilled level that would allow for a sit/stand option. Tr. 57. 10 Plaintiff argues that, if he needs a sit/stand option, then he is entitled to an award of 11 benefits based on the facts of this case. Doc. 14, at 22. 12 In her decision, the ALJ did not address the additional limitation of a sit/stand 13 option. Citing to the vocational expert’s examples of production worker and office clerk, 14 the ALJ found that “there are jobs that exist in significant numbers in the national 15 economy that the [Plaintiff] can perform.” Tr. 23. 16 Plaintiff has not, however, cited to evidence in the record indicating that any of the 17 doctors opined that a sit/stand option was necessary. The strongest evidence to this effect 18 seems to be Dr. Prieve’s remarks that Plaintiff “has limitations on standing and walking, 19 but should be able to stand or walk 2-4 hours intermittently throughout an eight-hour 20 day” and “should be able to sit four hours intermittently in an eight-hour day.” Tr. 601 21 (emphasis added). In light of Dr. Holland’s opinion that Plaintiff could stand or walk for 22 6-8 hours and sit for 6-8 hours in an 8-hour day, and Dr. Shetty’s opinion that Plaintiff 23 could stand and walk for 6 hours in an 8-hour day, the ALJ’s decision not to assess a 24 sit/stand option was a rational one, and the Court will not disturb it. See Carmickle v. 25 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008); Allen v. Heckler, 749 26 F.2d 577, 579 (9th Cir. 1985) (“If the evidence admits of more than one rational 27 interpretation, we must uphold the decision of the ALJ.”). 28 - 22 - 2. 1 Function-by-Function Assessment. 2 Plaintiff also argues that the RFC was deficient because the ALJ cannot classify an 3 RFC in terms of a category of work, but must set forth a function-by-function assessment 4 of work-related limitations. Doc. 14, at 22-23. Defendant does not dispute that the ALJ 5 did not set forth a function-by-function assessment of Plaintiff’s ability to sit, stand, and 6 walk, but argues instead that function-by-function assessments are not always necessary. 7 Doc. 17, at 19. 8 Before determining Plaintiff’s RFC, the ALJ “must first identify the individual’s 9 functional limitations or restrictions and assess [his] work-related abilities on a function- 10 by-function basis[.]” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). Only after an 11 appropriate function-by-function assessment “may RFC be expressed in terms of the 12 exertional levels of work[.]” Id.; see Reed v. Massanari, 270 F.3d 838, 843 n.2 (9th Cir. 13 2001). 14 consideration of an individual’s functional capacities to support an RFC assessment 15 based on an exertional category, the [ALJ] may . . . overlook limitations or restrictions 16 that would narrow the ranges and types of work an individual may be able to do[.]” 17 SSR 96-8p, at *4. 18 “could make the difference between a finding of ‘disabled’ and ‘not disabled.’” Id. This sequential evaluation process is important because absent “careful Failure to perform a function-by-function assessment ultimately Here, the ALJ acknowledged her obligations under SSR 96-8p, but failed to meet 19 20 them. The ALJ discussed the “paragraph B” functional criteria identified at 21 Section 12.00 of the Listing of Impairments: activities of daily living; social functioning; 22 concentration, persistence, or pace; and episodes of decompensation. Tr. 18. Citing 23 SSR 96-8p, the ALJ recognized that the RFC assessment “requires a more detailed 24 assessment by itemizing various functions contained in the broad categories found in 25 paragraph B” (Tr. 18), but she did not translate the paragraph B criteria into specific 26 work-related functions in her RFC determination (see 20 C.F.R. § 404.1545(c) (These 27 functions include, among other things, “responding appropriately to supervision, co- 28 workers, and work pressures in a work setting[.]”)). - 23 - 1 Defendant argues that a function-by-function analysis is not always necessary. 2 Doc. 17, at 19; see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing 3 a function-by-function analysis for medical conditions or impairments that the ALJ found 4 neither credible nor supported by the record is unnecessary.”) (citing SSR 96-8p). The 5 Court has noted that the ALJ did not provide sufficient reasons for discounting 6 Dr. Bencomo’s opinion of Plaintiff’s mental health. She therefore should have conducted 7 a function-by-function analysis of Plaintiff’s mental health condition. 8 Defendant also asserts that a function-by-function assessment is implicit in the 9 ALJ’s finding that Plaintiff can perform “less than a full range of sedentary work.” 10 Doc. 17, at 19-20. SSR 96-8p requires more than implicit findings. The ALJ “must 11 discuss the individual’s ability to perform sustained work activities in an ordinary work 12 setting on a regular and continuing basis . . . and describe the maximum amount of each 13 work-related activity the individual can perform[.]” SSR 96-8p, at *7 (emphasis added). 14 Merely citing the regulation “is insufficient to fulfill the function-by-function and 15 narrative requirements under SSR 96-8p.” Sharma v. Astrue, No. C 07-4906 MEJ, 2008 16 WL 4540992, at *6 (N.D. Cal. Oct. 6, 2008). The ALJ’s failure to perform a function- 17 by-function assessment of Plaintiff’s work-related abilities before determining his RFC 18 renders the ALJ’s decision susceptible to the errors described in SSR 96-8p, and thus 19 constitutes legal error. 20 IV. Remedy. 21 The decision to remand for further development of the record or for an award 22 benefits is within the discretion of the Court. 42 U.S.C. § 405(g); see Harman v. Apfel, 23 211 F.3d 1172, 1173-74 (9th Cir. 2000). This Circuit has held that an action should be 24 remanded for an award of benefits where the ALJ has failed to provide legally sufficient 25 reasons for rejecting evidence, no outstanding issue remains that must be resolved before 26 a determination of disability can be made, and it is clear from the record that the ALJ 27 would be required to find the claimant disabled were the rejected evidence credited as 28 true. See, e.g., Varney v. Sec’y of HHS, 859 F.2d 1396, 1400 (9th Cir. 1988). - 24 - 1 After applying the credit-as-true rule to the improperly discredited evidence, no 2 outstanding issue remains to be resolved before determining that Plaintiff is entitled to 3 benefits. 4 Dr. Bencomo, if adopted along with Plaintiff’s physical limitations, would preclude 5 Plaintiff from performing his past work and that there would be no other work that he 6 could sustain. Tr. 60-62. The Court will remand the case for an award of benefits. See 7 Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (remanding for an award of benefits 8 where it was “‘clear from the record that the ALJ would be required to determine the 9 claimant disabled’”) (citation omitted). The vocational expert testified that the mental limitations found by 10 IT IS ORDERED: 11 1. Defendant’s decision denying benefits is reversed. 12 2. This case is remanded for an award of benefits. 13 Dated this 30th day of April, 2012. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 25 -

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