Lupe Zamora v. Nancy A. Berryhill

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. The decision of the Commissioner is REVERSED AND REMANDED for further administrative proceedings consistent with this Order. (See attachment for details) (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 ) NO. EDCV 17-0502-KS ) Plaintiff, ) v. ) MEMORANDUM OPINION AND ORDER ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) Defendant. ) _________________________________ ) LUPE ZAMORA, 17 INTRODUCTION 18 19 20 Lupe Zamora (“Plaintiff”) filed a Complaint on March 17, 2017, seeking review of the 21 denial of her application for Supplemental Security Income (“SSI”). (Dkt. No. 1.) On April 22 25, 2017, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 23 undersigned United States Magistrate Judge. (Dkt. Nos. 12, 14, 15.) On November 13, 24 2017, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. No 23.) Plaintiff seeks an 25 order reversing the Commissioner’s decision and remanding for further proceedings. (Joint 26 Stip. at 22.) The Commissioner requests that the ALJ’s decision be affirmed. (Joint Stip. at 27 22.) The Court has taken the matter under submission without oral argument and remands 28 the case for further proceedings. 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On November 28, 2012, Plaintiff, who was born on May 26, 1964, protectively filed 4 an application for SSI under Title XVI.1 (Administrative Record (“AR”) 60-72.) Plaintiff 5 alleged disability beginning January 1, 2008 due to arthritis, thyroid, asthma, learning 6 disability, seizures, emotional, high blood pressure, and depression. 7 Commissioner denied Plaintiff’s application initially on August 8, 2013 and upon 8 reconsideration on January 30, 2014. (AR 29, 35-38.) Plaintiff then requested a hearing. 9 (AR 42). Administrative Law Judge Troy Silva (“ALJ”) held a hearing on April 9, 2015. 10 (AR 398-425.) Plaintiff, represented by counsel, testified before the ALJ as did vocational 11 expert (“VE”) Sandra Fioretti. (Id.) On May 29, 2015, the ALJ issued an unfavorable 12 decision, denying Plaintiff’s application for benefits. (AR 12-27.) On January 17, 2017, the 13 Appeals Council denied Plaintiff’s request for review. (AR 4-7.) Plaintiff timely filed this 14 Complaint. (AR 86.) The 15 16 SUMMARY OF ADMINISTRATIVE DECISION 17 18 Applying the five step sequential disability evaluation process, at Step One, the ALJ 19 found that Plaintiff had not engaged in substantial gainful activity from the day she filed her 20 application for benefits on November 28, 2012 through the date of his decision. (AR 17.) At 21 Step Two, the ALJ found that Plaintiff had the following severe impairments: 22 23 “bipolar disorder, depressed, with psychosis; patellofemoral syndrome 24 involving the bilateral knees; morbid obesity; status post Baxter’s nerve release, 25 and status post plantar fascia release of the left heel” 26 27 1 28 Plaintiff was 48 years old on the application date and thus met the agency’s definition of a “younger individual.” See 20 C.F.R. § 416.963(c). 2 1 (AR 17.) At Step Three, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled the severity of any impairments 3 listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 4 416.926). (AR 17.) The ALJ then determined that Plaintiff had the residual functional 5 capacity (“RFC”) to perform medium work with the following limitations: 6 7 “[Plaintiff] can lift and carry 50 pounds occasionally and 25 pounds frequently. 8 She can stand and walk for six hours out of an eight-hour workday, and she can 9 sit for six hours out of an eight-hour workday. She can frequently walk over 10 uneven terrain, climb ladders, and work at heights. She can frequently bend, 11 crouch, stoop, and crawl. She is limited to simple, repetitive tasks.” 12 (AR 19.) 13 14 15 At Step Four, the ALJ found that Plaintiff had no past relevant work. (AR 26.) 16 Finally, at Step Five, the ALJ considered Plaintiff’s RFC and relying on the testimony of the 17 VE found that Plaintiff could perform jobs existing in significant numbers in the national 18 economy, such as industrial cleaner (DOT2 381.687-018), hand packager (DOT 920.587- 19 018), and kitchen helper (DOT 318.687-010). (AR 27.) Accordingly, the ALJ determined 20 that Plaintiff had not been under a disability, as defined in the Social Security Act, from the 21 application filing date through the date of the ALJ’s decision. (Id.) 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 26 determine whether it is free from legal error and supported by substantial evidence in the 27 28 2 “DOT” refers to the Dictionary of Occupational Titles. 3 1 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 2 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion.’” Hill v. Astrue, 698 F.3d 4 1153, 1159 (9th Cir. 2012) (citations omitted). “Even when the evidence is susceptible to 5 more than one rational interpretation, we must uphold the ALJ’s findings if they are 6 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 7 1104, 1111 (9th Cir. 2012). 8 9 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 10 nonetheless must review “the entire record as a whole, weighing both the evidence that 11 supports and the evidence that detracts from the Commissioner’s conclusion.” Garrison v. 12 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citations omitted); Desrosiers v. Sec’y of Health 13 & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible for 14 determining credibility, resolving conflicts in medical testimony, and for resolving 15 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citations omitted). 16 17 The Court will uphold the Commissioner’s decision when “the evidence is susceptible 18 to more than one rational interpretation.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 19 2005). However, the Court may review only the reasons stated by the ALJ in his decision 20 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 21 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 22 reverse the Commissioner’s decision if it is based on harmless error, meaning error that is 23 “inconsequential to the ultimate nondisability determination, or that, despite the legal error, 24 the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 806 F.3d 487, 25 492 (9th Cir. 2015) (citations omitted). 26 // 27 // 28 // 4 DISCUSSION 1 2 The parties raise two issues. 3 The first is whether the ALJ ’s determination of 4 Plaintiff’s RFC properly considered the physical and mental medical evidence of record. 5 (Joint Stip. at 2.) The second is whether the ALJ properly determined Plaintiff’s credibility 6 regarding her subjective statements about her symptoms and their limiting effects. (Joint 7 Stip. at 2.) The Court finds that both issues, as they relate to Plaintiff’s mental health only, 8 warrant reversal. 9 10 I. The ALJ Erred In Determining Plaintiff’s Psychological RFC 11 12 Plaintiff argues that the ALJ’s RFC determination failed to properly consider the 13 medical evidence of her physical impairments, improperly relied on a discredited orthopedic 14 consultative examiner, failed to give proper weight to a treating psychiatrist, and failed to 15 develop the record concerning her mental impairments. (Joint Stip. at 3-6.) 16 17 A. Facts 18 19 1. Physical medical history 20 21 On August 14, 2014, Plaintiff measured 5 feet 6 inches tall and weighed 22 approximately 283 pounds. (AR 197.) Imaging of Plaintiff’ knees from August 2012 shows 23 Plaintiff has bilateral osteoarthritis. (AR 266.) In February 2013, Plaintiff reported that 24 walking upstairs caused her pain and her knees collapsed randomly when she walked. (AR 25 340.) An x-ray of Plaintiff’s right foot from June 2013 showed calcaneal spurs, vascular 26 calcification, and soft tissue swelling. (AR 337.) An MRI of her left ankle from October 27 2013 showed degenerative changes and a probable lipoma along the lateral malleolus. (AR 28 156.) Imaging of Plaintiff’s left calcaneous in July 2014 showed posterior and plantar 5 1 enthesophytes and mild degenerative changes, but no acute abnormalities. (AR 303.) X- 2 rays of Plaintiff hands on January 23, 2015 were considered unremarkable but showed 3 osteophytosis or periarticular erosion and small accessory ossicles. (AR 274.) 4 5 a. Plaintiff’s doctors’ treatment notes 6 7 Doctor Nguyen-Phuong Pham appears to have started treating Plaintiff around July 8 2012. (AR 249-253.) Dr. Pham was her primary care physician at least through early 2015 9 and treated her or referred her for a number of issues including knee pain, ankle pain, 10 calcaneal spurs, elbow pain, hypertension, hypothyroidism, headaches, insomnia, and 11 psychological issues including depression and bipolar disorder. (AR 189-270). 12 13 Plaintiff underwent surgery on her left foot for plantar fasciitis on January 15, 2015. 14 (AR 278.) Doctor David Shofler performed the surgery. (AR 278.) On January 23, 2015, 15 eight days after the surgery, Plaintiff walked to the doctor’s office for a postoperative visit 16 where she complained of persistent pain that was not controlled by her pain medication. (AR 17 275.) Plaintiff had changed the bandage on her foot despite instructions to leave the original 18 bandage in place. (AR 275.) Plaintiff also needed to walk home after the visit but was 19 advised to walk on it as little as possible until her next appointment in two weeks. (AR 275.) 20 Plaintiff had x-rays of her hands taken on the same day at the same medical center. (AR 21 274.) Plaintiff returned for her second postoperative appointment one week later, which was 22 one week early. (AR 273.) She walked to this visit as well, admitted to walking a lot, and to 23 walking mostly without the protective boot. (AR 273.) Her new pain prescription had not 24 been filled yet, so the doctor contacted the pharmacy again. (AR 273.) One week later, she 25 returned to have her sutures removed. (AR 272.) The skin around the incision was healing 26 well and the doctor attributed the persistent pain to Plaintiff’s walking a lot after the surgery. 27 (AR 272.) Dr. Shofler noted Plaintiff was noncompliant with postoperative protocol but did 28 say her frequent walking post-surgery was a result of her personal circumstances. (AR 272.) 6 1 b. Doctor Bernabe’s Medical Opinion 2 3 Doctor Vicente R. Bernabe, a board certified orthopedic surgeon, examined Plaintiff 4 on June 11, 2013 at the request of the Department of Social Services. (AR 136-40.) Plaintiff 5 informed Dr. Bernabe she was experiencing pain in her knees and legs with sharp pain in her 6 knees and ankles aggravated by extended periods of standing and walking. (AR 136.) She 7 also told Dr. Bernabe she was currently only being treated with physical therapy and pain 8 medication. (AR 136.) Dr. Bernabe did not have any of Plaintiff’s medical records for 9 review and he did not take any x-rays. (AR 136, 139.) Dr. Bernabe noted Plaintiff had a 10 history of arthritis and her family had a history of arthritis and bone/joint problems. (AR 11 137.) Plaintiff was five feet six inches tall and weighed 280 pounds. (AR 137.) Dr. Bernabe 12 saw Plaintiff was able to move around without difficulty or pain and did not use any devices 13 to help her walk. (AR 137.) Plaintiff’s station and gait, cervical spine, thoracic spine, and 14 lumbar spine were all normal and straight leg raise tests in the seated and supine positions 15 were negative for both legs. (AR 137-38.) Dr. Bernabe found no problems in Plaintiff’s 16 shoulders, elbows, wrists, or hands. (AR 138.) Plaintiff also had full range of motion in her 17 hips, ankles, and feet without experiencing pain. (AR 138.) Dr. Bernabe did observe 18 patellofemoral grinding and crepitus in both of Plaintiff’s knees and her range of motion was 19 0 to 130 degrees, but her knees had normal alignment and contour, the ligaments were stable, 20 and they were not tender when touched. (AR 138.) 21 22 Dr. Bernabe’s medical opinion was that Plaintiff was morbidly obese and had 23 patellofemoral pain syndrome in both knees. (AR 139.) It was his medical opinion that 24 Plaintiff could nonetheless lift and carry 50 pounds occasionally and 25 pounds frequently. 25 (AR 139.) He also opined Plaintiff could walk and stand for six hours out of an eight-hour 26 work day, sit for six hours out of an eight-hour work day, frequently push and pull, frequently 27 walk on uneven terrain, climb ladders, and work at heights, and frequently bend, crouch, 28 7 1 stoop, and crawl. (AR 139-40.) He found Plaintiff did not need an assistive device when 2 walking and that she had no limitations related to her hands. (AR 140.) 3 4 2. Psychological medical history 5 6 Plaintiff went to the Emergency Room on April 24, 2012 because she was depressed 7 and claimed she had been crying “all the time” for two weeks. (AR 355.) She denied 8 having hallucinations or suicidal thoughts. (AR 355-56.) On September 18, 2013, Plaintiff 9 received emergency treatment for a possible drug overdose. (AR 161-63.) She stated she 10 had taken medication to help her sleep because she had been having trouble sleeping for a 11 few days. (AR 172.) Plaintiff denied having ever attempted to commit suicide, denied 12 having hallucinations, and she was not admitted on an involuntary psychiatric hold. (AR 13 161, 170-72.) A few weeks prior to this, on August 29, 2013, Doctor Denise Dittenmore 14 began treating Plaintiff for mental health. (AR 150-51.) Plaintiff reported to Dr. Dittenmore 15 that she experienced visual hallucinations. (AR 150.) Dr. Dittenmore diagnosed Plaintiff 16 with bipolar disorder and depression with psychosis. (AR 151, 153.) Plaintiff’s treatment, 17 or at least prescription of medication, appears to have been largely consistent with Dr. 18 Dittenmore from August 2013 through February 2015. (AR 184-86.) 19 20 a. Doctor Dittenmore’s Medical Opinion 21 22 Dr. Dittenmore completed a Mental Residual Functional Capacity Statement for 23 Plaintiff. (AR 394-97.) It was submitted as additional evidence to the Appeals Council after 24 the ALJ’s decision. (AR 8.) Dr. Dittenmore again diagnosed Plaintiff with bipolar disorder 25 and depression with psychosis. (AR 394.) Dr. Dittenmore rated Plaintiff as being precluded 26 from performance for 15% or more of an 8-hour work day in understanding and memory. 27 (AR 395.) Dr. Dittenmore rated Plaintiff as being precluded from performance for 15% or 28 more of an 8-hour work day in sustained concentration and memory except she was not 8 1 precluded from making simple work-related decisions. (AR 395.) For social interactions, 2 Dr. Dittenmore found Plaintiff was not precluded from asking simple questions and 3 requesting assistance or from maintaining socially appropriate behavior and adhering to 4 basic neatness and cleanliness standards. (AR 395-96.) Plaintiff was 5% precluded from 5 interacting appropriately with the general public. (AR 395.) Plaintiff was precluded from 6 performance for 15% or more of an 8-hour work day in accepting instructions and 7 responding appropriately to criticism from supervisors and in getting along with coworkers 8 or peers without distracting them or exhibiting behavioral extremes. (AR 395.) In regards to 9 adaptation, Dr. Dittenmore listed Plaintiff as being precluded from performance during an 8- 10 hour work day 5% of the time relating to being aware of normal hazards and taking 11 appropriate precautions, 10% of the time for setting realistic goals or making plans 12 independently of others, and 15% or more of the time for responding appropriately to 13 changes in the work setting and traveling in unfamiliar places or using public transportation. 14 (AR 396.) Dr. Dittenmore wrote in relation to this last point that Plaintiff needed to travel 15 with her boyfriend. (AR 396.) 16 17 Dr. Dittenmore further found that Plaintiff would be off task more than 30% of the 18 time, would miss more than 6 days of work per month, and would be unable to complete an 19 8-hour work day more than 6 days per month. (AR 396.) Dr. Dittenmore stated Plaintiff did 20 not have reduced intellectual functioning but that she was in special education from 4th to 21 12th grade. (AR 397.) Finally, Dr. Dittenmore wrote that Plaintiff has “severe mood 22 swings” and “anger outbursts” and that she is “essentially illiterate, can’t spell, read, or solve 23 math problems.” (AR 397.) 24 25 b. Doctor Chehrazi’s Medical Opinion 26 27 Doctor Avazeh Chehrazi also provided a psychological evaluation of Plaintiff at the 28 request of the Department of Social Services. (AR 141-45.) The evaluation took place on 9 1 June 1, 2013. (AR 141.) Plaintiff’s medications at the time included Elavil, Lioresal, Norco, 2 Zoloft, Synthroid, and Vasotec. (AR 142.) Plaintiff denied any psychiatric hospitalizations 3 or suicidal ideations. (AR 142.) Plaintiff denied seeing or hearing hallucinations and no 4 “bizarreness or confusion was present.” (AR 143.) Plaintiff stated she graduated from high 5 school but was in special education from first through twelfth grade. (AR 142.) She 6 reported being able to dress, bathe, make simple meals, and pay bills without help but stated 7 she did need help shopping, doing laundry, and doing household chores because of pain. 8 (AR 143.) She also reported relying on others to drive her places because she does not have 9 a driver’s license. (AR 143.) 10 11 Plaintiff’s behavior during the evaluation appears to have been normal. (AR 143.) 12 Her mood was sad and her affect dysphoric. (AR 143.) Her intellectual functioning was 13 mildly delayed. (AR 143.) Plaintiff’s immediate and recent memories were weak evidenced 14 by her ability to repeat five digits forward but only two backward and recall only two out of 15 three objects after a five minute period with an intentional distraction. (AR 143.) Her fund 16 of knowledge was poor as she knew who the current president was and how many days are 17 in a week, but incorrectly answered how many items make a dozen. (AR 143.) Her 18 attention and concentration were adequate throughout the interview and testing. (AR 143.) 19 Her judgment for common sense hypotheticals was also adequate as she knew why cars have 20 seat belts and what she would do if she found someone’s wallet in a store. (AR 143-44.) 21 Weschsler tests showed Plaintiff’s general intellectual functioning as mildly delayed and her 22 general memory function as borderline to mildly delayed. (AR 144.) 23 24 Dr. Chehrazi found Plaintiff’s overall cognitive ability was mildly delayed and listed 25 her probable diagnoses as dysthymic disorder, mild intellectual disability, and economic 26 psychosocial stressors. (AR 144.) It was Dr. Chehrazi’s medical opinion that Plaintiff 27 would have no difficulty with following simple instructions but would have moderate 28 difficulty with detailed and complex instructions. (AR 145.) Dr. Chehrazi further opined 10 1 that Plaintiff would have no difficulty making simple work-related decisions or responding 2 to changes in a work environment. (AR 145.) Dr. Chehrazi found Plaintiff would have mild 3 difficulty complying with safety and attendance job rules as well as maintaining normal 4 work persistence and pace. (AR 145.) Although Dr. Chehrazi thought Plaintiff was socially 5 appropriate during the appointment, Dr. Chehrazi stated Plaintiff would have mild difficulty 6 consistently interacting socially with people at work in an appropriate manner. (AR 145.) 7 Dr. Chehrazi also stated Plaintiff appeared capable of managing her own finances but 8 Plaintiff did report that her boyfriend managed their finances. (AR 143-145.) 9 10 3. The ALJ’s RFC Determination 11 12 The ALJ noted that Plaintiff alleged she was disabled due to “arthritis, thyroid disease, 13 asthma, a learning disability, seizures, emotional problems, hypertension, and depression.” 14 (AR 20.) The ALJ then discussed Plaintiff’s medical records in detail. (AR 20-26.) The ALJ 15 found Plaintiff’s physical pain was either transitory in nature or controlled with pain 16 medication evidenced primarily by her comments to Dr. Pham in the treatment records. (AR 17 20-26.) The ALJ discussed Plaintiff’s foot pain, surgery, post-surgery pain and walking 18 despite instructions to rest, and noted her surgical wound had healed well. (AR 22.) He 19 considered Dr. Bernabe’s medical opinion and found it was largely consistent with the 20 examination and medical records, although he stated a light exertional capacity for Plaintiff 21 would be more appropriate than Dr. Bernabe’s opined medium exertional capacity. (AR 20- 22 21.) The ALJ found Plaintiff’s hypothyroidism and hypertension were largely controlled 23 when Plaintiff took medication for them. (AR 20, 23.) The ALJ addressed additional 24 medical issues, like Plaintiff’s headaches and hand pain, finding they were transitory and only 25 affected her minimally. (AR 22.) The ALJ dismissed Plaintiff’s complaints of asthma and 26 seizures because there was no evidence of treatment for either condition. (AR 23.) The ALJ 27 stated he considered her weight when determining Plaintiff’s RFC. (AR 23.) 28 11 1 Next, the ALJ considered Plaintiff’s psychological impairments. (AR 23-26.) The 2 ALJ delineated Plaintiff’s first trip to the emergency room, being prescribed different 3 depression medications, and being diagnosed with bipolar disorder. (AR 23.) The ALJ next 4 discussed Dr. Chehrazi’s observations and opinions and then adopted them. (AR 23-24.) 5 The ALJ found Plaintiff had been in special education classes but had graduated high school 6 and that nothing in the record showed Plaintiff had low intellectual functioning prior to age 7 22. (AR 24.) The ALJ also stated that the record showed Plaintiff understands treatment 8 plans and is capable of communicating her needs. (AR 24.) Next, the ALJ mentioned 9 Plaintiff’s meeting with a psychiatrist (Dr. Dittenmore) on August 29, 2013 where she alleged 10 to have visual hallucinations. (AR 24.) The ALJ commented Plaintiff went to the emergency 11 room for a suspected drug overdose but was released to go home because she was not 12 believed to be a danger to herself or others. (AR 25.) Then the ALJ listed times where 13 Plaintiff had varying levels of depression despite sometimes being out of her medication. 14 (AR 25.) The ALJ stated that at the hearing, Plaintiff said she was not receiving mental 15 health treatment but her medication was helping. (AR 25.) The ALJ also found that despite 16 instances of claiming to have hallucinations, there was “no evidence the claimant responds to 17 internal stimuli.” (AR 25.) The medical opinions of the Stage Agency doctors also suggested 18 Plaintiff could perform simple work tasks in a non-public environment. (AR 26.) 19 20 The ALJ found there was substantial evidence that showed Plaintiff could still perform 21 work activities. Plaintiff’s daily activities included washing dishes, making simple meals, 22 dressing herself, bathing herself, going for a walk, watching television, doing puzzles, and 23 spending time with family and friends. (AR 25.) Plaintiff was in special education but 24 graduated from high school and only received a few D grades and she stated she can read and 25 write simple words. (AR 25.) Plaintiff walked to her podiatry appointment shortly after 26 surgery, there was no evidence of complications since the surgery, and the rest of Plaintiff’s 27 treatment had been conservative. (AR 25.) Accordingly, the ALJ found Plaintiff could 28 perform medium work with limitations mentioned previously. (AR 19, 25-27.) 12 1 At the ALJ hearing, the ALJ posed a hypothetical to the VE that included an almost 2 identical RFC (medium work with certain limitations) that he later included in his decision. 3 (AR 19, 420-21.) Based on the VE’s testimony, the ALJ determined that despite Plaintiff’s 4 limitations, there were jobs in significant numbers in the national economy Plaintiff could 5 perform and she was not disabled. (AR 26-27.) 6 B. Applicable Law 7 8 9 A claimant’s RFC represents the most a claimant can do despite his or her limitations. 10 20 C.F.R. § 416.945 (a)(1); Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998). An ALJ’s 11 RFC determination “must set out all the limitations and restrictions of the particular 12 claimant.” Valentine v. Comm’r SSA, 574 F.3d 685, 690 (9th Cir. 2009) (emphasis in 13 original) (citation omitted). In particular, the RFC determination must account for the 14 opinion of a claimant’s treating physician unless that opinion is properly rejected. See 15 Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1164 (9th Cir. 2008). 16 17 There are three categories of physicians: treating physicians, examining physicians, 18 and nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see 20 19 C.F.R. 416.927.3 Treating physician opinions should be given more weight than examining 20 or nonexamining physician opinions. Orn, 495 F.3d at 632. If the treating physician’s 21 opinion is not contradicted by another doctor, it may be rejected only if the ALJ provides 22 “clear and convincing reasons supported by substantial evidence in the record.” Id. If the 23 treating physician’s opinion is contradicted by another doctor, it may be rejected only by 24 “specific and legitimate reasons supported by substantial evidence in the record.” Id. 25 26 27 28 3 Effective March 27, 2017, the Social Security Administration revised its regulations directing the evaluation of medical opinion evidence, including 20 C.F.R §§ 404.1527, 416.927. But these revisions are not applicable or relevant to the analysis here relating to Plaintiff’s November 28, 2012 application for SSI benefits. 13 1 Examining physician opinions too are given more weight than nonexamining 2 physician opinions. Lester, 81 F.3d at 830. If the examining physician’s opinion is not 3 contradicted by another doctor, it too may be rejected only if the ALJ provides clear and 4 convincing reasons supported by substantial evidence in the record. Id. If the examining 5 physician’s opinion is contradicted by another doctor, it may be rejected only if there are 6 specific and legitimate reasons supported by substantial evidence in the record. Id. at 830-31. 7 An ALJ can satisfy the substantial and legitimate reasons standard by “setting out a detailed 8 and thorough summary of the facts and conflicting clinical evidence, stating his 9 interpretations thereof, and making findings.” Orn, 495 F.3d at 632. 10 11 An ALJ also has a special duty to fully and fairly develop the record and to assure that 12 the claimant’s interests are considered, even when the claimant is represented by counsel. 13 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (citation omitted). Although the burden 14 to establish disability lies with the claimant, “it is equally clear that the ALJ has a duty to 15 assist in developing the record.” Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001) 16 (citations omitted). The ALJ’s duty to develop the record is triggered “when there is 17 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 18 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001) (citation omitted). 19 The Social Security Administration (“SSA”) will attempt to get medical evidence from a 20 claimant’s medical sources if given permission and may request and provide for a 21 consultative examination if necessary. See 20 C.F.R. § 416.912. 22 23 C. Analysis 24 25 1. Physical impairments 26 27 Plaintiff relies on three sources of evidence in her argument to show the ALJ erred in 28 his RFC determination related to her physical impairments. First, Plaintiff cites many of her 14 1 physical impairments, primarily related to her lower extremities and morbid obesity, to show 2 the ALJ failed to properly consider her physical medical evidence in determining her RFC. 3 (Joint Stip. at 3-4.) Second, Plaintiff identifies an inconsistency in the ALJ’s opinion 4 relating to the level of exertional capacity that he found Plaintiff can perform. (Joint Stip. at 5 4.) Third, Plaintiff criticizes the opinion of the orthopedic consultative examiner and argues 6 any reliance by the ALJ on the consultative examiner’s opinion was error because the SSA 7 has since fired the doctor as a consultative examiner. (Joint Stip. at 4-5.) Defendant argues 8 the ALJ considered and discussed in detail the entire medical record, any inconsistency in 9 the exertional level was a harmless typographical error, and substantial evidence in the 10 record supports the ALJ’s conclusion. (Joint Stip. at 7-12.) 11 12 Although Plaintiff argues that in reaching his RFC determination, the ALJ did not fully 13 consider the objective medical evidence concerning her lower extremities and morbid 14 obesity, the ALJ’s opinion shows he reviewed all of her medical records. Specifically, 15 Plaintiff claims the RFC is wrong because she cannot perform medium work, cannot stand 16 and/or walk for six hours out of an eight-hour work day, and cannot climb ladders 17 frequently. (Joint Stip. at 3.) The ALJ considered the objective medical evidence, but found 18 the record showed Plaintiff’s impairments did not prevent her from performing these work- 19 related activities. The record showed her symptoms were largely controlled with medication 20 and conservative treatment or no treatment. Further, the fact Plaintiff walked to two of her 21 post-surgical podiatry appointments showed she was capable of walking farther than she 22 claimed. 23 24 While there was no medical opinion from any of Plaintiff’s treating physicians for her 25 physical conditions, there was a consultative medical examiner’s opinion. An examining 26 physician’s opinion that is uncontradicted may only be rejected by the ALJ if there are clear 27 and convincing reasons supported by substantial evidence in the record. Lester, 81 F.3d at 28 830. Dr. Bernabe’s opinion appears to be uncontradicted as there is no other medical 15 1 opinion concerning Plaintiff’s physical impairments in the record. As the ALJ did not find 2 clear and convincing reasons to reject the opinion, it serves as a credible opinion on which 3 the ALJ was entitled to rely. 4 5 Turning to Dr. Bernabe’s status with SSA, Defendant has not disputed that Dr. 6 Bernabe is no longer a consultative examiner for the SSA. State agencies, not the SSA, 7 manage the hiring of consultative examiners and oversee that the examination reports 8 comply with guidelines. Reed v. Massanari, 270 F.3d 838, 841-42 (9th Cir. 2001); 20 9 C.F.R. § 416.919s. The SSA does monitor the State agencies “management of the 10 consultative examination process.” 20 C.F.R. § 416.919t. If Dr. Bernabe was dismissed 11 from the consultative examiner pool, it indicates that the State agencies or SSA were 12 performing their duty of monitoring the consultative examination process. However, since 13 Dr. Bernabe was still performing examinations at the time of Plaintiff’s examination, he 14 must not have been dismissed yet. As Dr. Bernabe was an acceptable consultative examiner 15 at the time Plaintiff underwent the consultative examination, the ALJ did not have a 16 legitimate reason to refuse to consider Dr. Bernabe’s opinion. See Reed v. Massanari, 270 17 F.3d 838, 844 (9th Cir. 2001). 18 19 Whether the orthopedic consultative examiner was later fired by the SSA is irrelevant 20 if the ALJ’s reliance on his medical opinion is supported by substantial evidence in the 21 record. Dr. Bernabe did not have any of Plaintiff’s medical records to review and did not 22 take any x-rays, but he did examine Plaintiff. He found she was morbidly obese. Plaintiff’s 23 height and weight are documented throughout the record and Plaintiff endorses this finding. 24 Dr. Bernabe also found patellofemoral pain syndrome in both of Plaintiff’s knees, which is 25 supported by the imaging of Plaintiff’s knees showing bilateral osteoarthritis. Dr. Bernabe’s 26 assessment that Plaintiff had range of motion in both knees from 0 to 130 degrees was based 27 on his personal examination of her. (AR 138.) The ALJ properly addressed the other 28 objective medical evidence not assessed by Dr. Bernabe by giving a detailed summary of it 16 1 and rejecting the allegations of the severity of resulting limitations because of Plaintiff’s 2 activities. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Thus, the ALJ’s findings 3 regarding Plaintiff’s physical impairments are supported by substantial evidence based on 4 the record as a whole. Id. 5 6 The ALJ’s RFC determination is based on his findings of Plaintiff’s physical 7 impairments. As his physical impairment findings are supported by substantial evidence, 8 they also serve as substantial evidence of Plaintiff’s RFC. Hill v. Astrue, 698 F.3d 1153, 9 1159 (9th Cir. 2012). The alleged severity of Plaintiff’s lower extremity ailments was 10 contradicted by her daily activities: she takes care of herself, does dishes which requires 11 standing, and goes for walks. She also walked to two podiatry appointments shortly after 12 foot surgery. Even if Plaintiff was required to walk to her podiatry appointments because of 13 her personal circumstances, the fact she was able to indicates that if she needed to walk as a 14 work requirement, she would be capable. The ALJ also found Plaintiff had full range of 15 motion in her knees based on Dr. Bernabe’s examination and that her pain was controlled 16 with medication based on Dr. Pham’s treatment notes which together suggest she would not 17 be precluded from climbing ladders. Accordingly, the ALJ’s determination of Plaintiff’s 18 physical RFC is supported by substantial evidence. 19 20 Finally, while Plaintiff claims the ALJ’s opinion regarding Plaintiff’s physical RFC is 21 internally inconsistent, any error is harmless. Plaintiff identifies an inconsistency in the 22 ALJ’s opinion where he determines Plaintiff can perform medium work with some 23 limitations but later states a light exertional capacity would be more appropriate than the 24 medium exertional capacity opined by Dr. Bernabe. 25 typographical error. 26 determination and repeated almost the same limitations in his hypothetical to the VE. The 27 testimony of the VE and the ALJ’s findings based on the VE’s testimony are not disputed. 28 Aside from this one sentence saying a light exertional capacity would be more appropriate, This sentence appears to be a The ALJ adopted most of Dr. Bernabe’s findings in his RFC 17 1 the rest of the ALJ’s opinion and reasoning supports his physical RFC determination as 2 discussed above. Thus, this typographical error is harmless. 3 4 2. Mental impairments 5 6 Plaintiff also argues her mental impairments are understated in the ALJ’s RFC 7 determination. (Joint Stip. at 5.) Plaintiff bases this argument on the fact the ALJ relied on 8 the medical opinion of the consultative examiner and failed to provide significant and 9 legitimate reasons before rejecting Plaintiff’s treating psychiatrist’s opinion. (Joint Stip. at 10 5-6.) Defendant argues that despite the fact that Plaintiff did not provide her treating 11 psychiatrist’s opinion until one month after the ALJ’s decision, the ALJ’s RFC 12 determination is still consistent with the treating psychiatrist’s opinion. (Joint Stip. at 8.) 13 14 If the Appeals Council “considers new evidence in deciding whether to review a 15 decision of the ALJ, that evidence becomes part of the administrative record, which the 16 district court must consider when reviewing the Commissioner’s final decision for 17 substantial evidence.” Brewes v. Comm’r of SSA, 682 F.3d 1157, 1163 (9th Cir. 2012); 18 accord Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007). A contradicted 19 treating physician’s opinion received into evidence in the first instance by the Appeals 20 Council must still be reviewed and can only be rejected under the specific and legitimate 21 reasons standard. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 1993). 22 23 Plaintiff’s treating psychiatrist’s medical opinion was not considered by the ALJ 24 because it was submitted after he rendered his decision. The Appeals Council considered it 25 but denied review and in doing so failed to list any reasons as to why the opinion should be 26 rejected. This is analogous to Ramirez where the ALJ appeared to rely on a nonexamining 27 physician’s opinion regarding the plaintiff’s mental diagnosis without discussing a treating 28 physician’s opinion and the treating physician’s supplemental report was not discussed 18 1 because it was only submitted to the Appeals Council, which denied review without 2 comment. Ramirez, 8 F.3d at 1453-5. The Ninth Circuit not only reversed the Secretary’s 3 decision but remanded for an immediate award of benefits. Id. at 1455. Indeed, in terms 4 wholly pertinent here, the Ninth Circuit emphasized the ALJ’s error in disregarding the 5 treating physician’s findings when “no testimony or other information in the record” 6 contradicted the treating physician’s findings regarding Ramirez’s mental disorder. Id. 7 8 Here, Dr. Dittenmore, Plaintiff’s treating physician, stated Plaintiff suffered from 9 bipolar disorder and depression with psychosis. The ALJ found these specific impairments 10 to be severe. (AR 17.) Dr. Dittenmore further stated that Plaintiff was precluded from most 11 work-related activities for 15% or more of an eight-hour work day, had severe mood swings 12 and anger outbursts, and cannot read, spell, or do math problems. None of these findings 13 were expressly rejected by the ALJ by specific and legitimate reasons because the ALJ did 14 not have Dr. Dittenmore’s opinion at the time of the adverse decision. The ALJ found 15 Plaintiff’s mental health symptoms were controlled with medication, that she can read and 16 write simple words, and that she was not responding to internal stimuli. These findings, 17 even supplemented with Dr. Chehrazi’s examining opinion, are nonetheless insufficient to 18 refute Dr. Dittenmore’s opined severe limitations because the ALJ was unaware of Dr. 19 Dittenmore’s opinion when he rendered his decision. Because he was unaware of the 20 treating physician’s opinion, he was unable to weigh it at all, let alone under the correct 21 standard. Failure to reject Dr. Dittenmore’s opinion under the appropriate standard was 22 reversible legal error. See Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007). Moreover, 23 even though the Dittenmore opinion was not available to the ALJ, it was available and part 24 of the record before the Appeals Council, which also failed to consider the treating 25 physician’s opinion under the proper legal standard. See Ramirez, 8F.3d at 1452 (noting that 26 under 20 C.F.R. § 404.970(b), the Appeals Council is obligated to “evaluate the entire 27 record, including new relevant evidence” submitted after the hearing before the ALJ). 28 19 1 When there is legal error and there are outstanding issues to be resolved, the district 2 court should remand the case for further proceedings rather than for an award of benefits. 3 See Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015). In this case, the question of 4 Plaintiff’s mental health disability and the associated limiting effects could benefit from 5 further administrative investigation and review. Thus, this issue is remanded to the agency 6 for further determination. 7 8 9 II. The ALJ Erred in Discounting Plaintiff’s Credibility Concerning the Severity of Her Mental Health Symptoms 10 11 Plaintiff contends the ALJ failed to provide legally sufficient reasons to reject 12 Plaintiff’s credibility concerning her physical and psychological symptoms and limitations. 13 (Joint Stip. at 12.) The Court agrees in relation to her psychological symptoms. 14 15 A. ALJ Credibility Determination and Related Facts 16 17 First, the ALJ found that Plaintiff’s alleged symptoms could be caused by her medical 18 conditions. (AR 20.) Next, the ALJ went through the objective findings as discussed above. 19 Then, the ALJ found “[a]part from objective findings, there are substantial reasons … that 20 [Plaintiff] remains able to engage in a wide range of work-related activities.” (AR 25.) 21 These reasons included her daily activities of light household chores, taking care of her 22 personal needs, watching television, washing dishes, doing puzzles, and spending time with 23 family and friends. (AR 25.) Her alleged foot pain that only allows her to walk one block or 24 less he found discredited by her walking to podiatry appointments shortly after surgery. (AR 25 25.) The ALJ also found “the remainder of [Plaintiff’s] treatment has been conservative in 26 nature with no acute findings.” (AR 25.) He discounted her mental limitations evidenced in 27 one way through her special education classes by saying she “admitted that she can read and 28 write basic words.” (AR 25.) 20 1 2 At the ALJ hearing, the ALJ received a record of Plaintiff’s special education classes 3 into evidence. (AR 407.) Plaintiff’s attorney and the ALJ discussed what the information 4 meant: 5 6 ALJ: She had a low full-scale IQ score. Is there anything showing -- do we have 7 any records going back to before she was 22, showing such low scores? 8 ATTY: Your Honor, she does have a certificate from her high school that shows 9 that she had lower standard proficiency in order to graduate. 10 … 11 ALJ: Eligible for differential standard of proficiency for graduation from Cajon 12 (phonetic) High School. What does that mean? 13 ATTY: Your Honor, I’m not sure. I think it was just -- it must have been the 14 testing is not the standard testing that’s usually given. 15 ALJ: Okay. 16 ATTY: But I’m not sure back in the ‘80s what the standards were. 17 ALJ: I’m not either. 18 BY THE ADMINISTATIVE LAW JUDGE: 19 Q: So you were in -- it doesn’t say -- were you in special education classes? 20 A: Yes. I got into special ed when I was in 4th grade. 21 Q: Okay. Why were you in special ed? 22 A: Because I couldn’t read, I couldn’t write, and I couldn’t do math. 23 Q: Yet you got an A in English, you got an A in reading. 24 … 25 ALJ: These are basically report cards -- I want to just look up and see -- let’s 26 look up on the Internet and see what it says… I imagine it just means they’re 27 going to give – let her have a lower standard. And this is from Irvine. Let’s see 28 what it says. It just means there’s different grounds other than taking a -- let’s 21 1 see. What it looks like is that, essentially, what it means is, like, if they have an 2 individualized education plan, if they meet those goals -- 3 ATTY: Okay. 4 ALJ: -- then they’ll be eligible to graduate as if – they would have -- they would 5 be able to graduate along with people who didn’t have an IEP. They just had to 6 meet the regular – there were different goals. 7 ATTY: Okay. With a regular diploma? 8 ALJ: Yeah. With a regular diploma and all the same advantages as somebody 9 who graduated with a regular diploma -- 10 ATTY: Okay. 11 ALJ: -- or went to regular classes. I don’t really see a lot in here other -- you 12 know, that would make me think that she had a really low IQ score, though, that 13 I can say, yes, she had a low IQ score. 14 ATTY: Right. 15 ALJ: Okay. If you had her IEP, that might have had it. 16 17 (AR 405-08.) 18 19 The ALJ further found in relation to Plaintiff’s mental impairments that her psychiatric 20 medications have helped her. (AR 25.) He found Plaintiff’s complaint of crying spells on 21 October 24, 2013 was explained by the fact she had been out of her medication for one week. 22 (AR 25.) He found she only had mild depression after being out of medication for two 23 weeks. (AR 25.) However, he also identified an approximate one year span of time where 24 her medication did not help her. (AR 24.) The ALJ also stated that Plaintiff testified she was 25 not receiving mental health treatment, only medication. (AR 25.) Plaintiff’s testimony, 26 however, included that she had been undergoing mental health treatment for about a year and 27 a half, that her doctor told her to try to do things around the house to avoid getting anxious, 28 22 1 and that her doctor was working on adjusting her medication to limit side effects. (AR 410, 2 415, 417.) 3 B. Applicable Law 4 5 6 An ALJ must make two findings before determining that a claimant’s pain or symptom 7 testimony is not credible.4 Treichler v. Comm’r of SSA, 775 F.3d 1090, 1102 (9th Cir. 2014). 8 “First, the ALJ must determine whether the claimant has presented objective medical 9 evidence of an underlying impairment which could reasonably be expected to produce the 10 pain or other symptoms alleged.” Id. (quoting Lingenfelter, 504 F.3d at 1036). “Second, if 11 the claimant has produced that evidence, and the ALJ has not determined that the claimant is 12 malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the 13 claimant’s testimony regarding the severity of the claimant’s symptoms” and those reasons 14 must be supported by substantial evidence in the record. Treichler, 775 F.3d at 1102; see 15 also Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015); Carmickle, 533 F.3d at 1161 16 (court must determine “whether the ALJ’s adverse credibility finding . . . is supported by 17 substantial evidence under the clear-and-convincing standard”). 18 19 In weighing a plaintiff’s credibility, the ALJ may consider a number of factors, 20 including: 21 reputation for lying, prior inconsistent statements concerning the symptoms, and other “(1) ordinary techniques of credibility evaluation, such as the claimant’s 22 4 23 24 25 26 27 Effective March 28, 2016, Social Security Ruling (“SSR”) 16-3p superseded SSR 96-7p, which required the ALJ to assess the credibility of a claimant’s statements. SSR 16-3p focuses on the existence of medical cause and an evaluation of “the consistency of the individual’s statements about the intensity, persistence, or limiting effects of symptoms with the evidence of record without consideration of the claimant’s overall ‘character or truthfulness’.” See Guide to SSA Changes in Regulations and Rulings 2016-17, June 2017. The revision is not applicable to Plaintiff’s application here, which was filed on March 28, 2013. But the Ninth Circuit has acknowledged that SSR16-3p is consistent with existing precedent that requires that the assessments of an individual’s testimony be focused on evaluating the “intensity and persistence of symptoms” after the ALJ has found that the individual has medically determinable impairments that could reasonably be expected to produce those symptoms. Trevizo v. Berryhill, 862 F.3d 987, 1000, n.5 (9th Cir. 2017). 28 23 1 testimony . . . that appears less than candid; (2) unexplained or inadequately explained failure 2 to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily 3 activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ must also 4 “specifically identify the testimony [from the claimant that] she or he finds not to be credible 5 and . . . explain what evidence undermines the testimony.” Treichler, 775 F.3d at 1102 6 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). “General findings are 7 insufficient.” Brown-Hunter, 806 F.3d at 493 (quoting Reddick v. Chater, 157 F.3d 715, 722 8 (9th Cir. 1998)). 9 10 C. Analysis 11 12 The ALJ found there was no medical evidence to support the allegation that Plaintiff 13 suffered from seizures and asthma, so he did not need to reach the severity of the symptoms. 14 Treichler, 775 F.3d at 1102. The ALJ gave Plaintiff’s allegations of physical symptom 15 severity relating to arthritis, thyroid disease, and hypertension little weight because the record 16 revealed these symptoms were largely controlled with medication. Plaintiff received either 17 no treatment or conservative treatment for the majority of her physical impairments. Plaintiff 18 did undergo surgery on her foot, but then she walked to her podiatry appointments after the 19 surgery. All of these reasons, based on substantial evidence in the record, support the ALJ’s 20 credibility finding relating to Plaintiff’s allegations of the debilitating effects of her physical 21 symptoms. 22 23 However, the ALJ did not properly evaluate Plaintiff’s credibility regarding the 24 disabling effect of her mental impairments. Plaintiff alleged she could not work because of a 25 learning disability, emotional problems, and depression. The ALJ found Plaintiff had bipolar 26 disorder, depression with psychosis, and that she was in special education classes, all of 27 which served as objective medical findings that could produce her alleged symptoms, 28 satisfying the first credibility test prong. Treichler, 775 F.3d at 1102. The ALJ then needed 24 1 to either find that Plaintiff malingered or provide clear and convincing reasons substantially 2 supported by the record to reject her testimony regarding the severity of her mental 3 symptoms. Id. 4 5 The reasons the ALJ provided for giving little weight to Plaintiff’s credibility 6 regarding her mental impairments were not clear and convincing reasons or supported by 7 substantial evidence in the record. The ALJ’s finding that Plaintiff testified she was not 8 receiving mental health treatment is not supported by the hearing transcript because Plaintiff 9 testified about the mental health treatment she was receiving from her doctor. (See AR 410.) 10 The ALJ found Plaintiff’s medications have helped her, which would undermine the severity 11 of her symptoms, but the ALJ himself observed that there was an approximate one year span 12 of time where her medication did not help her. 13 unexplained and is contrary to the ALJ’s finding that her mental impairments were 14 adequately managed with medication. Indeed, at the hearing when asked directly whether the 15 medications have helped with her mental health problems, Plaintiff testified, “They help a 16 little but not very much though.” (AR 414.) The ALJ’s conclusion that her medication was 17 helping her also appears contrary to her allegations that she started having and continued to 18 have hallucinations. (See AR at 414 (“I just hear things or see things a lot.”).) Further, the 19 record indicates that Plaintiff had been prescribed a variety of strong medications for her 20 depression, including Fluoxetine, Elavil, Celexa and Zoloft as well as psychotropic 21 medications. (AR 23; 25; 150-152.) This portion of the record remains 22 23 The ALJ found there was no indication that Plaintiff responded to internal stimuli. 24 This is not a clear and convincing reason to discredit Plaintiff’s allegation of seeing and 25 hearing hallucinations. 26 claimed to see and hear them. Failure to respond to hallucinations is not proof that they do 27 not occur. Plaintiff did not claim to be experiencing hallucinations on June 1, 2013 when she 28 saw Dr. Chehrazi. When she saw Dr. Dittenmore on August 29, 2013, she did claim to be Plaintiff did not claim she responded to her hallucinations, she 25 1 experiencing visual hallucinations. On September 19, 2013 during an involuntary psychiatric 2 hold evaluation, Plaintiff did not report hallucinations, but during the ALJ hearing on April 9, 3 2015, Plaintiff testified to experiencing auditory and visual hallucinations. In finding that 4 Plaintiff’s allegation of hallucinations was not credible the ALJ did not rely on this 5 inconsistency. Indeed, the ALJ did not point to any record evidence that Plaintiff was 6 untruthful, malingering, testified inconsistently, or failed to seek treatment, as a basis for 7 discounting her credibility. The Court thus finds the ALJ wholly failed to provide legally 8 sufficient reasons for discounting her credibility. 9 10 The ALJ also found that Plaintiff’s alleged learning disabilities did not preclude her 11 ability to work. The ALJ based his finding on the fact she graduated from high school and 12 only received a few D grades, her testimony that she can read and write basic words, and the 13 examining psychologist’s medical opinion. (See AR 25.) However, the record also shows 14 the ALJ was unsure how to evaluate Plaintiff’s special education classes. (AR 406.) In 15 examining Plaintiff’s academic records that were presented at the hearing, the ALJ was 16 unsure what was meant by a notation that Plaintiff was “Eligible for differential standard of 17 proficiency for graduation from Cajon High School.” (Id.) Plaintiff testified she had been in 18 special education classes since fourth grade because she could not read, write, or do math, but 19 the ALJ remarked, “Yet you got an A in English, you got an A in reading.” (AR 407.) 20 21 There is an affirmative duty on the ALJ to develop the record if there is an ambiguity 22 in the evidence. Mayes, 276 F.3d at 459-460. The ALJ did not know how to evaluate 23 Plaintiff’s special education classes, so he questioned Plaintiff as to what they meant. When 24 Plaintiff was unable to give a sufficient explanation, the ALJ did an internet search. (AR 25 407-408.) The internet search did not provide very detailed information and based on the 26 transcript, it is unclear if the search results were from the time period Plaintiff was in school. 27 (Id. at 408.) The record is thus ambiguous as to how to assess Plaintiff’s academic record and 28 the ALJ erred in not developing the record further to resolve the ambiguity. 26 1 2 The ALJ has not provided clear and convincing reasons supported by substantial 3 evidence to support his discounting of Plaintiff’s subjective testimony regarding the severity 4 of the symptoms of her mental health impairments. This is particularly true because the ALJ 5 did not have the benefit of Plaintiff’s treating psychiatrist’s medical opinion. 6 7 Thus, the ALJ’s determination regarding Plaintiff’s mental health symptoms must be 8 remanded to the agency for further administrative proceedings to adequately assess the 9 opinions of Plaintiff’s treating physician and to resolve remaining ambiguities in the record 10 necessary to properly weigh Plaintiff’s credibility as to the severity of her mental health 11 symptoms. See Dominguez, 808 F.3d at 407-08. 12 13 CONCLUSION 14 15 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the 16 Commissioner is REVERSED AND REMANDED for further administrative proceedings 17 consistent with this Order. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 20 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and counsel for 21 defendant. 22 23 LET JUDGMENT BE ENTERED ACCORDINGLY. 24 25 DATE: April 9, 2018 26 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 27 28 27

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