Smith v. SSA
Filing
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ORDER signed by Magistrate Judge Allison Claire on 3/24/2015 ORDERING 14 Plaintiff's motion for summary judgment is GRANTED; The Commissioner's 20 cross-motion for summary judgment is DENIED; and this matter is REVERSED and REMANDED to the Commissioner for an award of benefits. CASE CLOSED (Reader, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHNNIE SENTEZ SMITH,
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Plaintiff,
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No. 2:14-cv-0537 AC
v.
ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security
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(“Commissioner”) denying his application for Supplemental Security Income (“SSI”) under
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Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f. SSI is paid to
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financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and
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Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the
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Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind,
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or disabled individuals, including children, whose income and assets fall below specified
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levels . . .”).
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I. PROCEDURAL BACKGROUND
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Plaintiff applied for SSI on October 25, 2010 (protective filing date), alleging a disability
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onset date of March 13, 2010. Administrative Record (“AR”) 11.1 Plaintiff’s application was
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disapproved initially, and on reconsideration. AR 77-81 (February 2, 2011) & 83-90 (July 15,
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2011). Plaintiff thereupon requested a hearing before an administrative law judge (“ALJ”).
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AR 93-94. On June 14, 2012, a video hearing was held before ALJ Philip E. Callis, who presided
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by video from Oakland, CA. AR 23-40 (transcript of hearing). Plaintiff, who was represented by
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counsel, appeared and testified at the hearing by video from Stockton, CA. AR 28-36. A
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vocational expert also appeared and testified at the hearing. AR 36-39.
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Plaintiff’s counsel made an opening statement at the hearing. AR 27-28. Counsel
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asserted that plaintiff’s “anti-social personality disorder meets listing 12.08.” AR 28.
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“Listing 12.08” refers to “Personality Disorders,” which is one of the Commissioner’s “Listing of
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Impairments,” at 20 C.F.R. Part 404, Subpart P, Appx. 1.
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In a decision dated September 20, 2012, the ALJ issued an unfavorable decision, finding
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plaintiff “not disabled” under Section 1614(a)(3)(A) of the Act, 42 U.S.C. § 1382c(a)(3)(A).
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AR 11-22 (decision and exhibit list). Plaintiff asked the Appeals Council (“Council”) to review
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the ALJ’s decision. AR 7 & 299-302. The Council denied review on December 30, 2013,
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leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 2-6.
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Plaintiff filed this action on February 25, 2014. ECF No. 1; see 42 U.S.C. § 1383(c)(3). In due
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course, plaintiff was granted leave to proceed in forma pauperis, the parties consented to the
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The official filing date was October 28, 2010. AR 187. The “protective” filing date is the date an
applicant first lets the Commissioner know that he intends to apply for SSI benefits – a date
occurring before the official filing date – so long as certain specified conditions are met. See 20
C.F.R. §§ 416.340 (written statement) & 416.345 (oral inquiry); see, Wright v. Sullivan, 900 F.2d
675, 684 (3rd Cir. 1990) (“[t]he regulations provide that a written application for supplemental
security income benefits will be retroactively dated to that of an earlier oral inquiry”); Reyes v.
Colvin, 2015 WL 337483, at *1 (S.D.N.Y. 2015) (“If certain criteria are met, a claimant may
establish an application date on the date the Social Security Administration receives a written
statement of intent to file for benefits or an oral inquiry about benefits. This process is referred to
as protective filing.”).
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The Administrative Record is electronically filed at ECF No. 13.
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jurisdiction of the magistrate judge, the Commissioner filed the administrative record, and the
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parties filed and fully briefed the pending cross-motions for summary judgment. ECF Nos. 3, 7,
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9, 13, 14, 20 & 22.
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Plaintiff seeks reversal and remand for calculation and payment of benefits, or in the
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alternative, remand for further proceedings. Plaintiff argues that the ALJ erred: (1) by failing to
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find that plaintiff meets the requirements of Listing 12.08; (2) by finding residual functional
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capacity that is materially inconsistent with the opinions of the consultative examiners; (3) in
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discounting plaintiff’s testimony; and (4) in discounting the testimony of plaintiff’s sister.2
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The Commissioner argues that the ALJ: (1) properly considered the medical evidence;
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(2) properly found that plaintiff was not fully credible; and (3) properly considered the statements
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of plaintiff’s sister.
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For the reasons that follow, the court will grant plaintiff’s motion for summary judgment
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and remand for an award of benefits, and will deny the Commissioner’s cross-motion for
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summary judgment.
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II. FACTUAL BACKGROUND
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Plaintiff was born on April 17, 1956, and was nearly 54 years old on the alleged onset date
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of his disabilities, March 13, 2010. In his youth, plaintiff had a propensity for violence that
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resulted in suspensions and expulsions from school. AR 14, 371. He was sent to the California
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Youth Authority at age 15. AR 371. Plaintiff dropped out of high school, and does not have a
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General Equivalency Diploma (“GED”). AR 28. He was arrested at age 18 for drug possession,
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and has been sentenced to prison on multiple occasions. AR 14, 371. Plaintiff has a 23-year
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history of heroin and cocaine dependence, but reports that he last used those drugs in 2005, aside
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from a brief relapse in 2011. AR 15, 35 & 309.
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It appears that plaintiff first received mental health services in 2004 while he was in
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Plaintiff does not challenge the ALJ’s findings that plaintiff’s mood disorder and his
heroin/cocaine dependence in remission do not meet or medically equal the severity of any of the
listed impairments, specifically, Listings 12.04 (Affective Disorders) and 12.09 (Substance
Addiction Disorders). While plaintiff’s brief makes passing references to some of the
characteristics of these two Listings, he does not specifically mention either one in his brief.
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prison, where he was diagnosed with schizophrenia and bipolar disorder, and where he
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participated in mental health counseling. AR 15. After release, plaintiff attended and graduated
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from the Delancey Street Treatment Program in 2008. AR 325. Plaintiff returned to prison,
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apparently on a parole violation, in July 2009, where he was diagnosed with Psychosis NOS
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(“Not Otherwise Specified”), Mood Disorder NOS, Polysubstance dependence in remission,
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Schizoaffective Disorder and Bipolar Disorder NOS. AR 309-12, 322 & 323.
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Plaintiff has a brief work history, having worked as a prep cook for 2 months, a furniture
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stripper for 1 month, and a security guard for 2 months, all in 2008. AR 236. Plaintiff’s longest
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period of employment was six months at the restaurant at the Delancey Street Program,
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apparently while he was in treatment there. AR 318.
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III. LEGAL STANDARDS
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The Commissioner’s decision that a claimant is not disabled will be upheld “if it is
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supported by substantial evidence and if the Commissioner applied the correct legal standards.”
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Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the
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Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews
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v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).3
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Substantial evidence is “more than a mere scintilla,” but “may be less than a
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preponderance.” Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such
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evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
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Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the
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record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will
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suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).
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Although this court cannot substitute its discretion for that of the Commissioner, the court
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nonetheless must review the record as a whole, “weighing both the evidence that supports and the
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The right to judicial review of determinations under Title XVI is provided by 42 U.S.C.
§ 1383(c)(3), which provides that “The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as provided in
section 405(g) of this title to the same extent as the Commissioner's final determinations under
section 405 of this title.”
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evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS,
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846 F.2d 573, 576 (9th Cir.1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The
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court must consider both evidence that supports and evidence that detracts from the ALJ's
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conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”).
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“The ALJ is responsible for determining credibility, resolving conflicts in medical
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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
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Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of
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which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart,
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278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the
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ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn
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v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.
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2003) (“It was error for the district court to affirm the ALJ's credibility decision based on
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evidence that the ALJ did not discuss”).
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The court will not reverse the Commissioner’s decision if it is based on harmless error,
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which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the
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ultimate nondisability determination.’” Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006)
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(quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400
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F.3d 676, 679 (9th Cir. 2005).
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IV. RELEVANT LAW – TITLE XVI
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Supplemental Security Income (“SSI”) is available under Title XVI of the Social Security
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Act (the “Act”) for every income-eligible individual who is “disabled.” 42 U.S.C. § 1381a;
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Department of HHS v. Chater, 163 F.3d 1129, 1133 (9th Cir. 1998) (“The Social Security Act
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directs the Commissioner of the Social Security Administration to provide benefits to all
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individuals who meet the eligibility criteria”). Plaintiff is “disabled” if he is “‘unable to engage in
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substantial gainful activity due to a medically determinable physical or mental impairment . . ..’”
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Gutierrez v. Commissioner, 740 F.3d 519, 523 (9th Cir. 2014) (quoting 42 U.S.C.
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§ 1382c(a)(3)(A)); Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (same).4
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The Commissioner uses a five-step sequential evaluation process to determine whether an
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applicant is disabled and entitled to SSI benefits. 20 C.F.R. § 416.920(a)-(g); Barnhart v.
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Thomas, 540 U.S. 20, 25 & 25 n.1 (2003) (setting forth the “five-step sequential evaluation
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process to determine disability” under Title XVI, as well as Title II). The following summarizes
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the sequential evaluation:
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Step one: Is the claimant engaging in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.
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20 C.F.R. § 416.920(a)(4)(i), (b).
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Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, the claimant is not disabled.
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Id., § 416.920(a)(4)(ii), (c).
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Step three: Does the claimant's impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App. 1? If so, the claimant is disabled. If not,
proceed to step four.
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Id., § 416.920(a)(4)(iii), (d).
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Step four: Does the claimant’s residual functional capacity make
him capable of performing his past work? If so, the claimant is not
disabled. If not, proceed to step five.
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Id., § 416.920(a)(4)(iv), (e) & (f).
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Step five: Does the claimant have the residual functional capacity
perform any other work? If so, the claimant is not disabled. If not,
the claimant is disabled.
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Id., § 416.920(a)(4)(v), (g).
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The claimant bears the burden of proof in the first four steps of the sequential evaluation
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process. Bowen, 482 U.S. at 146 n.5; Burch, 400 F.3d at 683 (plaintiff “bears the burden of
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proving that ... she has an impairment that meets or equals the criteria of an impairment listed in
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Appendix 1 of the Commissioner's regulations. . . . This Court has held that a claimant carries
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Title II of the Act provides for Disability Insurance Benefits, which are paid to eligible disabled
persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. This
program defines disability in the same way as Title XVI. Bowen, 482 U.S. at 140.
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the initial burden of proving a disability”) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th
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Cir. 1989)). The Commissioner bears the burden if the sequential evaluation process proceeds to
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step five. Id.
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When the plaintiff claims a mental impairment, however, the ALJ is required to follow a
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“special technique” at Steps Two and Three, to evaluate the plaintiff’s disability. 20 C.F.R.
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§ 419.920a(a). At Step Two, the ALJ first evaluates plaintiff’s “pertinent symptoms, signs, and
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laboratory findings” to determine whether he has “a medically determinable mental
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impairment(s).” 20 C.F.R. § 419.920a(b)(1); Keyser, 648 F.3d at 725 (interpreting 20 C.F.R.
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§ 1520a, the parallel, and identically worded, regulation under Title II). Second, the ALJ rates
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“the degree of functional limitation” caused by the mental impairments just identified, in four
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broad areas of functioning: activities of daily living; social functioning; concentration, persistence
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or pace; and episodes of decompensation. 20 C.F.R. § 416.920a(b)(2) & (c)(1)-(3); Keyser, 648
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F.3d at 725. The degrees can be “none,” “mild,” “moderate,” “marked,” or “extreme.” 20 C.F.R.
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§ 416.920a(c)(4). Episodes of decompensation are ranked “none,” “one or two,” “three,” and
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“four or more.” Id. Third, the ALJ determines the severity of the mental impairment, “in part
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based on the degree of functional limitation.” 20 C.F.R. § 416.920a(d); Keyser, 648 F.3d at 725.
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The ALJ proceeds to Step Three only if the mental impairment is “severe.” Keyser, 648
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F.3d at 725. The Commissioner documents this “special technique” in a “Psychiatric Review
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Technique Form (‘PRTF’).” Id.; see AR 41-51. At Step Three, the ALJ must determine if the
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severe mental impairment identified in Step Two meets or equals the severity of a mental
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impairment in the Listings. 20 C.F.R. § 416.920a(d)(2); Keyser, 648 F.3d at 725. If it does not,
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the ALJ goes on to Step Four, returning to the sequential analysis.
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V. THE ALJ’s REVIEW OF THE RECORD
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A. California Department of Corrections and Rehabilitation
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After plaintiff returned to prison in July 2009 for a parole violation, he was evaluated by
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staff of the California Department of Corrections and Rehabilitation (“CDCR”). AR 16, 305-23
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(Exh. 1F). There, he was diagnosed with Bipolar Disorder NOS, Alcohol Abuse, and a history
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(“hx”) of heroin use in remission for five years. AR 16, 322. Upon referral to a psychiatrist for
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medication management, he was diagnosed with Psychosis NOS, Mood Disorder NOS and
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Polysubstance Dependence in remission. AR 16, 323.
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B. Parole Outpatient Clinic
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After plaintiff was released from prison in 2009, he reported to the Parole Outpatient
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Clinic (“POC”). There, he was seen and evaluated by several different mental health
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professionals.
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1. J. Frank, Ph.D.
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On December 4, 2009, J. Frank, Ph.D. conducted an initial evaluation of plaintiff at the
POC, and further examined plaintiff at other times. AR 335-44 (Exh. 4F). Dr. Frank diagnosed
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plaintiff with “Psychosis NOS, in partial remission on meds,” and “Mood Disorder NOS, with
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Bipolar features.” AR 332, 335, 341.
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2. John Lindgren, M.D.
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Dr. John Lindgren, M.D., a staff psychiatrist at the POC, examined plaintiff several times
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from on December 21, 2009 (before the March 13, 2010 alleged onset date of plaintiff’s
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disabilities), through May 5, 2011. AR 335-44 (Exh. 4F), 345-59 (Exh. 5F) & 382-400
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(Exh. 10F). Each time, Dr. Lindgren’s diagnosis was “Psychotic Disorder NOS,” and “Mood
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Disorder NOS.” Dr. Lindgren also ranked plaintiff’s General Assessment of Function (“GAF”)
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score.5 He ranked plaintiff’s GAF once at 58 (AR 397) and once at 60 (AR 331).6
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A GAF score is a rough estimate of an individual's psychological,
social, and occupational functioning used to reflect the individual's
need for treatment. . . . Although GAF scores, standing alone, do
not control determinations of whether a person's mental
impairments rise to the level of a disability (or interact with
physical impairments to create a disability), they may be a useful
measurement. . . . GAF scores are typically assessed in controlled,
clinical settings that may differ from work environments in
important respects. See, e.g., Titles II & XVI: Capability to Do
Other Work – The Medical-Vocational Rules As A Framework for
Evaluating Solely Nonexertional Impairments, SSR 85-15,
1983-1991 Soc. Sec. Rep. Serv. 343 (S.S.A. 1985) (“The mentally
impaired may cease to function effectively when facing such
demands as getting to work regularly, having their performance
supervised, and remaining in the workplace for a full day.”).
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(continued…)
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3. James Johnson, LCSW
James Johnson, LCSW, is a social worker at the POC. AR 338. He met with plaintiff
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many times, from December 21, 2009 to October 10, 2010, and reported diagnoses of Antisocial
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Personality Disorder, Psychotic Disorder NOS and opioid and cocaine dependence (but currently
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clean and sober). See Exhs. 4F & 5F. Of the many occasions where Johnson reported a diagnosis
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of anti-social personality disorder, he on one occasion noted, “Leaning more toward malingering
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of depressive symptoms.” See AR 338 (February 26, 2010).
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4. Dr. James Scaramozzino, Ph.D.
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Dr. James Scaramozzino, Ph.D., conducted a “comprehensive psychiatric evaluation” of
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plaintiff on February 5, 2010. AR 324-30 (Exh. 2F). He diagnosed plaintiff with, among other
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things, “Heroin opioid dependence in remission,” “Mood disorder NOS” and “Antisocial
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personality disorder.” Dr. Scaramozzino ranked plaintiff’s “functional assessment” to be
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“markedly” and/or “severely” impaired in the following areas: ability to accept instructions from
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a supervisor and respond appropriately; ability to complete a normal workday and workweek
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without interruptions at a consistent pace; ability to interact with coworkers; ability to deal with
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various changes in the work setting; and social functioning. AR 329-30. The remaining areas
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were not markedly impaired. Id. However, “[t]he likelihood of the claimant emotionally
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deteriorating in a work environment is high . . ..” AR 330. Dr. Scaramozzino ranked plaintiff’s
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GAF at 50.7
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5. Douglas R. Brewer, LCSW
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On April 20, 2011, Brewer Douglas R. Brewer, LCSW conducted an evaluation of
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plaintiff. AR 397-400 (Exh. 10F). Brewer’s “diagnostic impression” of plaintiff was “Psychotic
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Disorder NOS,” “Cocaine Dependence,” “Opioid Dependence,” and he ranked plaintiff’s GAF
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______________________
Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014) (some internal quotation marks
omitted).
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“According to the DSM–IV, . . . [a] GAF score between 51 to 60 describes “moderate
symptoms” or any moderate difficulty in social, occupational, or school functioning.”
Garrison, 759 F.3d at 1003 n.4.
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“[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious impairment in
social, occupational, or school functioning.’” Garrison, 759 F.3d at 1003 n.4.
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at 60. AR 398. Brewer then saw plaintiff regularly (weekly, biweekly or monthly), with
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intermittent medication evaluations by “Jaime Ortiz, M.D.” AR 381-400. Brewer regularly
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ranked plaintiff’s GAF at 60.
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6. Dr. Sylvia Torrez, Psy.D.
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Dr. Sylvia Torrez, Psy.D., conducted a “comprehensive psychiatric evaluation” of plaintiff
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on June 13, 2011. AR 368-75 (Exh. 8F). She diagnosed plaintiff with, among other things
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“Mood Disorder Not Otherwise Specified,” and “Antisocial Personality Disorder.” AR 373-74.
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Dr. Torrez found plaintiff’s “symptom severity” to be “within the moderate range.” AR 374. She
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ranked plaintiff’s “functional assessment” to be “poor to fair” in the following areas: ability to
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accept instructions from a supervisor and respond appropriately; ability to interact with
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coworkers; and ability to deal with the various changes in the work setting. AR 374-75. Dr.
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Torrez ranked all other functional assessments as “good” or “fair.” AR 374-75. She also gave
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plaintiff a GAF score of 55.
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7. Jaime Ortiz, M.D.
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Dr. Jaime Ortiz, M.D., was a psychiatrist at POC who saw plaintiff several times from
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September 28, 2011 through March 21, 2012, apparently for medication management. See
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Exh. 10F. Dr. Ortiz did not report any diagnoses, nor offer a GAF ranking.
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C. Dan Funkenstein, M.D.
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On January 28, 2011, Dan Funkenstein, M.D., authored the Psychiatric Review Technique
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Form (“PRTF”), regarding plaintiff. AR 41-51 (Exh. 1A). The PRTF and accompanying “Case
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Analysis” (Exh. 3A), are based upon a case review, and it appears that Dr. Funkenstein was not a
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treating or examining doctor. See Exhs. 1A, 2A & 3A.
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The PRTF reports (1) “Schizophrenic, Paranoid and Other Psychotic Disorders,”
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specifically, “Psychosis, NOS,” (2) “Affective Disorders,” specifically, “Mood Disorder, NOS,”
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and (3) “Substance Abuse Disorders,” specifically, “Hx DAA [history of Drug Addiction and
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Alcoholism].” AR 41-47. The PRTF also concluded that plaintiff was not markedly limited in
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any functional area. AR 49 & 52-53 (Exh. 2A).
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VI. THE ALJ’s DECISION
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The ALJ made the following findings:
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1.
The claimant has not engaged in substantial gainful activity
since October 25, 2010, the application date (20 CFR 416.971 et
seq.). Exhibits 9D, 10D.
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2.
The claimant has the following severe impairments: mood
disorder NOS, antisocial personality disorder, and heroin/cocaine
dependence in remission (20 CFR 416.920(c)).
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3.
The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
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The severity of the claimant's mental impairments, considered
singly and in combination, do not meet or medically equal the
criteria of listings 12.04, 12.07,[8] or 12.09.
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4.
The claimant has the residual functional capacity to perform
a full range of work at all exertional levels but is limited to
performing non-public, simple, routine or repetitive tasks.
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5.
The claimant is capable of performing past relevant work as
a woodworking helper. This work does not require the performance
of work related activities precluded by the claimant's residual
functional capacity (20 CFR 416.965).
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AR 13-17. The ALJ concluded:
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6.
The claimant has not been under a disability, as defined in
the Social Security Act, since October 25, 2010, the date the
application was filed (20 CFR 416.920(f)).
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AR 17.
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VII. ANALYSIS
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At Step One, the ALJ found that plaintiff has not engaged in substantial gainful activity, a
finding that is not challenged on this appeal.
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At Step Two, the ALJ found that plaintiff has three “severe” mental impairments, namely,
Mood Disorder NOS, Antisocial Personality Disorder, and Heroin/cocaine Dependence in
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The court assumes that the ALJ’s reference to “Listing 12.07,” which covers “Somatic
disorders,” is a typographical error for Listing 12.08, which covers “Personality disorders.”
There appears to be no reference in the evidence, or in the ALJ’s decision, to anything relating to
“somatic disorders.”
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Remission. AR 13. These findings are also not challenged on this appeal. Assuming the ALJ
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followed the required “special procedure,” the Step Two findings mean that (1) plaintiff has the
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three listed medically determinable mental impairments, (2) the ALJ has rated the degree of
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functional limitations for the four functional areas, caused by these impairments, and (3) the ALJ
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has determined that the mental impairments are severe, based in part on the degree of functional
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limitation. See Keyser, 648 F.3d at 725.
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A. Step 3: Whether Plaintiff’s Impairments Meet or Medically Equal Listing 12.08(B)
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Plaintiff argues that plaintiff’s antisocial personality disorder meets or equals the severity
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of Listing 12.08, Personality Disorders. ECF No. 14-1 at 17. In order to meet the severity of that
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listing, plaintiff must show that at least one requirement of Listing 12.08(A) is met, and that at
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least two of the requirements of Listing 12.08(B) are met. The ALJ considered only the
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paragraph “B” criteria. AR 13.
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Paragraph B is met if plaintiff can show: (1) that he has at least two of the “marked”
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restrictions listed there, (a) of activities of daily living, (b) in maintaining social functioning, or
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(c) in maintaining concentration, persistence or pace; or (2) one “marked” restriction together
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with “repeated episodes of decompensation, each of extended duration.” Listing 12.08(B). The
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ALJ specifically found that plaintiff has: “[1] only mild restriction in activities of daily living;
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[2] moderate difficulties in social functioning; and [3] moderate difficulties with regard to
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concentration, persistence or pace.” AR 13. He also found that plaintiff “has experienced no
20
episodes of decompensation, which have been of extended duration.” AR 13-14.9
21
a. Activities of daily living
22
The ALJ found that plaintiff had “only mild restriction in activities of daily living.”
23
AR 13. This area includes “adaptive activities such as cleaning, shopping, cooking, taking public
24
transportation, paying bills, maintaining a residence, caring appropriately for your grooming and
25
26
27
9
By finding only “mild” to “moderate” restrictions and difficulties, the ALJ implicitly found that
plaintiff did not have “marked” restrictions in those areas. A “marked” limitation “means more
than moderate but less than extreme.” Listing 12.00(C) (“Mental Disorders . . . Assessment of
severity”).
28
12
1
hygiene, using telephones and directories, and using a post office.” Listing 12.00(C). Plaintiff’s
2
ability to do these, and similar, things depends upon whether they are done independently,
3
appropriately, effectively and sustainably, and “independent of supervision or direction.”
4
Listing 12.00(C)(1). Thus, even if plaintiff can do these things, he may still have a “marked”
5
limitation in this area if he has “serious difficulty performing them without direct supervision, or
6
in a suitable manner, or on a consistent, useful, routine basis . . . .” Id.
7
8
9
i. Plaintiff’s showing
Plaintiff’s sister’s testimony indicates that plaintiff needs assistance with “filling out
paperwork,” and “looking things up on line,” which in her view, are things that “he should be
10
able to do on his own.” AR 298. In addition, while plaintiff states that he goes to church “every
11
Sunday,” AR 252 (Exh. 5E), he also states that he needs “to be reminded to go places.” Id. His
12
sister states that plaintiff “has to be encouraged and reminded to go” to church. AR 260 (Exh.
13
6E). Similarly, although plaintiff states that he sometimes does laundry and cooking, he and his
14
sister both state that he needs constant reminders to do the laundry, and other house chores, as
15
well as to take his medicine, and get his hair cut. AR 250 & 258. Moreover, his sister states that
16
reminding plaintiff of these chores usually results in an argument. Plaintiff also has to be
17
reminded to take his medicine. AR 250 (Exh. 5E) & 258 (Exh. 6E). Dr. Torrez states that
18
plaintiff “would benefit from the assistance of a payee to help manage his funds,” a component of
19
activities of daily living. AR 374; see Listing 12.00(C)(1) (includes “paying bills”).
20
On the other hand, plaintiff’s evidence from his sister and his own self-assessment shows
21
that he prepares his own meals daily. AR 250 & 258. Plaintiff has no problems with his own
22
personal care. AR 257. He takes daily walks outside. AR 251 & 259. He shops for food and
23
basic hygiene items, although he is “indecisive about what he wants.” AR 251 & 259. He
24
handles money properly and pays his bills. AR 251 & 259.
25
26
ii. ALJ’s determination
The ALJ found that plaintiff had only “mild restriction” in this area. AR 13. Plaintiff’s
27
abilities in this area are mixed, as discussed above, but there is substantial evidence in the record
28
for the ALJ to find that plaintiff has only “mild” restrictions in his ability to conduct the activities
13
1
of daily living.
2
Moreover, there is no medical evidence or opinion in the record showing that plaintiff had
3
a marked or severe impairment in this area. The ALJ indicates that he relied on the reports of
4
Drs. Torrez and Scaramozzino. Dr. Torrez’s only comment in this area stated that plaintiff
5
“would benefit from the assistance of a payee to help manage his funds.” AR 374; see Listing
6
12.00(C)(1) (includes “paying bills”).10 Dr. Scaramozzino opined more directly that plaintiff is
7
“not significantly impaired” in his daily activities. AR 330 (Exh. 2F).
8
iii. Resolution
9
The ALJ’s conclusion is supported by substantial evidence in the record showing that
10
plaintiff does engage in the activities of daily living, with only one basic limitation, namely, the
11
need to be reminded of chores, medicine-taking and other activities. The ALJ’s determination is
12
therefore supported by substantial evidence. See Thomas, 278 F.3d at 957 (“[t]he opinions of
13
non-treating or non-examining physicians may also serve as substantial evidence when the
14
opinions are consistent with independent clinical findings or other evidence in the record”)
15
(citations and internal quotation marks omitted).
16
b.
Social functioning
17
The ALJ found that plaintiff had only “moderate difficulties in social functioning.”
18
AR 13. Social functioning includes the capacity “to interact independently, appropriately,
19
effectively, and on a sustained basis” with other people, that is, the ability to get along with other
20
people. Listing 12.00(C)(2). Impaired social functioning can be shown by, for example, “a
21
history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal
22
relationships, or social isolation.” Id. In work situations, social functioning may involve
23
“interactions with the public, responding appropriately to persons in authority (e.g., supervisors),
24
or cooperative behaviors involving coworkers.” Id.
25
10
26
27
Dr. Torrez’s “functional assessment” principally addresses plaintiff’s ability to function in the
workplace, namely, to understand and remember instructions, maintain concentration and
attention, accept instructions from a supervisor, sustain an ordinary routine without special
supervision, complete a normal workday and workweek, interact with coworkers, and deal with
changes in the work setting. AR 374-75 (Exh. 8F).
28
14
1
i. Plaintiff’s showing
2
Plaintiff points to the opinions of two examining doctors, Dr. Torrez and
3
Dr. Scaramozzino, as evidence that he has a “marked” impairment in the area of social
4
functioning. In fact, Dr. Scaramozzino ranks plaintiff as “markedly” or “severely” impaired in
5
every area of social functioning he considered: ability to accept instructions from a supervisor and
6
respond appropriately; ability to complete a normal workday and workweek without interruptions
7
at a consistent pace; ability to interact with coworkers; and ability to deal with the various
8
changes in the work setting. AR 330. Dr. Torrez’s opinion is “consistent,” as the ALJ
9
recognized, in ranking plaintiff on the “social functioning” factors. AR 15. She rates plaintiff as
10
“fair to poor” in all the areas she considered: ability to accept instructions from a supervisor and
11
respond appropriately; ability to interact with coworkers; and ability to deal with the various
12
changes in the work setting. AR 374-75.
13
Both of these opinions are fully supported by the evidence in the record. Plaintiff’s sister
14
reports that plaintiff does “not well at all” with authority figures, “has always had issues all his
15
life with authority,” “doesn’t like change” and “[t]akes time to get used to it.” AR 257 & 262.
16
Plaintiff’s testimony is that he has a very brief work history, and that history shows a pattern of
17
inability to get along with his bosses. He worked as a chef, but was fired when he got into an
18
argument with his boss. AR 29. He worked in a shop stripping and refinishing furniture, but left
19
after a few months, after he got into an argument with his boss about pay. AR 30.11
20
The other areas of social functioning involve the ability to get along with others. Here,
21
plaintiff’s sister reports that plaintiff has threatened his own mother with a knife, is verbally
22
abusive to his sisters, has no friends, keeps to himself, and that “[n]o one wants to be around
23
him.” AR 261. Plaintiff reports that he thinks “people are out to harm me,” that he is unable to
24
“[d]eal with people,” and that he gets mad “a lot,” including fighting with his mother “almost
25
every day.” AR 249, 252-54. Plaintiff is socially isolated in that he stays home all day and
26
11
27
Plaintiff also worked for “a couple of months” as a guard, but it appears he left that job to take
the job as a chef. AR 29. It is not clear that any conclusion can be drawn from this part of
plaintiff’s work history, except that he lasted there only a short time.
28
15
1
watches TV, other than his daily walk. See AR 248.12
2
ii. The ALJ’s determination
3
The ALJ found that plaintiff had only “moderate difficulties in social functioning.”
4
AR 13. The ALJ does not explain how he reached this conclusion in light of Dr. Scaramozzino’s
5
“marked” and “severely marked” impairment findings, and Dr. Torrez’s “consistent” findings of
6
“fair to poor” functioning. Nor does the ALJ explain his conclusion in light of the record
7
evidence of plaintiff’s apparently severe inability to get along with others. He says that the
8
“sister’s statements were consistent” with plaintiff’s, but does not address the statements of either
9
one. See AR 16.
10
iii. Resolution
11
In light of all the evidence of marked impairment in this area, and the lack of evidence
12
contradicting it, the court finds that there is no substantial evidence supporting the ALJ’s finding
13
that plaintiff had only “moderate limitation” in social functioning.
14
c.
15
Concentration, persistence or pace
The ALJ found that plaintiff had only “moderate” difficulties with regard to concentration,
16
persistence or pace. AR 13. This area covers the ability to maintain attention and concentration
17
sufficiently to carry out work tasks. Listing 12.00(C)(3). Abilities in this area include the ability
18
to carry out sustained work and working at a consistent pace until the task is finished.
19
Impairments may be shown by inability to complete tasks without extra supervision or assistance.
20
i. Plaintiff’s showing
21
Plaintiff’s sister reports that plaintiff “[d]oes not complete all the way through,” and that
22
he “can’t keep still or focused long enough,” although she appears to be referring to his
23
television-watching. AR 260. She further asserts more generally that plaintiff “[g]ets frustrated
24
[too] quick to complete tasks and concentrate.” AR 261. There are no medical opinions showing
25
plaintiff to be markedly or severely impaired in this area.
26
27
12
In addition, in the past, plaintiff was constantly getting arrested. AR 14, 371.
28
16
1
2
ii. ALJ’s determination
The ALJ states that he considered and credited Dr. Torrez’s opinion, and also stated that
3
Dr. Torrez’s opinion that it was “consistent” with Dr. Scaramozzino’s examination. AR 15.
4
Dr. Torrez’s opinion, in ranking plaintiff on the “concentration, persistence, or pace” factors,
5
rates plaintiff as “good” or “fair” in all the areas she considered: ability to understand and
6
remember instructions; maintaining concentration and attention; sustaining an ordinary routine
7
without special supervision; and ability to complete a normal workday and workweek without
8
interruptions at a constant pace. AR 374-75. Dr. Scaramozzino’s opinion was mostly consistent,
9
in that he found that plaintiff was “not significantly” impaired in most of the areas Dr. Torrez
10
addressed. However, unlike Dr. Torrez, Dr. Scaramozzino found that plaintiff’s ability to
11
complete a normal workday and workweek without interruptions at a constant pace, was
12
“markedly to extremely impaired.” AR 329-30. The ALJ decision does not acknowledge this
13
difference, nor acknowledge or address Dr. Scaramozzino’s opinion about this area of
14
functioning.
15
16
17
18
19
20
iii. Resolution
Notwithstanding the “normal workday” issue, the opinions of the two doctors constitute
substantial evidence that plaintiff is not markedly impaired in this area of functioning.
d. Decompensation
Plaintiff does not argue, or mention, decompensation in his brief to this court, so the court
will not consider that issue.
21
e. Plaintiff does not meet or equal Listing 12.08
22
Plaintiff has marked limitations in only one area of functioning, namely, social
23
functioning. The ALJ’s determination that plaintiff was not markedly limited in that area is
24
therefore harmless error for purposes of Step Three, since plaintiff could only meet the Listing if
25
he were markedly impaired in two areas, or in one area if he met the decompensation criteria.
26
B. Residual Functional Capacity (“RFC”)
27
Having found that plaintiff’s impairments, though “severe” for purposes of Step Two, do
28
not meet or equal an impairment in the Listings, the ALJ was required to “go on to consider
17
1
whether the individual can meet the mental demands of past relevant work in spite of the limiting
2
effects of his or her impairment . . ..” SSR 85-15, at * 5, 1985 WL 56857 (S.S.A.); 20 C.F.R.
3
§ 416.920(e); Garcia v. Commissioner, 768 F.3d 925, 928 (9th Cir. 2014) (“Residual Functional
4
Capacity (RFC) is the work that an individual is capable of performing in spite of her
5
limitations”) (citing 20 C.F.R. § 416.945(a)(1)).
6
1. Evidence
7
As discussed above, the uncontradicted conclusions of Drs. Torrez and Scaramozzino,
8
both of whom were examining physicians, imposed several functional limitations on plaintiff’s
9
ability to work.13 The ALJ “must provide ‘clear and convincing’ reasons for rejecting the
10
uncontradicted opinion of an examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th
11
Cir. 1995) (quoting Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). Even if the examining
12
doctor’s opinion is contradicted by another doctor, the ALJ can reject his opinion only “for
13
specific and legitimate reasons that are supported by substantial evidence in the record.” Lester,
14
81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).
15
First, Dr. Torrez found that plaintiff’s ability to accept instructions from a supervisor and
16
respond appropriately, and his ability to interact with coworkers, are both “poor to fair.” AR 374
17
& 375. Dr. Scaramozzino found that plaintiff’s abilities in these areas are “markedly to extremely
18
limited.” AR 330.14 At the hearing, the ALJ specifically asked the Vocational Expert (“VE”),
19
about these functional limitations. When the ALJ asked if a hypothetical individual would remain
20
employed in the general economy if he “got into conflicts with the supervisors and co-workers on
21
a regular basis,” the VE testified “No, your honor.” AR 38; see also, 20 C.F.R. § 416.945(c) (“[a]
22
limited ability to carry out certain mental activities, such as . . . responding appropriately to
23
24
25
26
27
13
In the Ninth Circuit, courts “distinguish among the opinions of three types of physicians: (1)
those who treat the claimant (treating physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither examine nor treat the claimant
(nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
14
Dr. Scaramozzino also found that these limitations were “primarily due to his irritability, sense
of entitlement and lack of willingness to cooperate in the work environment.” AR 330.
Dr. Scaramozzino does not indicate the significance of this additional finding, and the ALJ makes
no mention of it.
28
18
1
supervision, [and] coworkers . . . may reduce your ability to do past work and other work”).
2
Second, Dr. Torrez found that plaintiff’s ability to deal with the various changes in the
3
work setting is “poor to fair.” AR 375. Dr. Scaramozzino found that plaintiff’s ability in this
4
area is “markedly impaired.” AR 330.
5
Third, Dr. Torrez found that plaintiff’s ability to complete a normal workday and
6
workweek without interruptions at a constant pace, is “fair.” AR 375. Dr. Scaramozzino found
7
that plaintiff’s ability in this area is “markedly to extremely impaired.” AR 330. At the hearing,
8
the ALJ specifically asked about this functional limitation. When asked if a hypothetical
9
individual could maintain employment in the general economy if he “suddenly leaves work, gets
10
angry and suddenly leaves work during the shift, storms off, that happens a couple of times . . .,”
11
the VE testified “No, your honor.” AR 38; see also, 20 C.F.R. § 416.945(c) (“[a] limited ability
12
to carry out certain mental activities, such as . . . responding appropriately to . . . work pressures
13
in a work setting, may reduce your ability to do past work and other work”).
14
Fourth, Dr. Torrez found that the likelihood of plaintiff emotionally deteriorating in the
15
work environment is “fair.” AR 375. Dr. Scaramozzino rated plaintiff’s chances of doing this, as
16
“high.” AR 330.
17
2. The ALJ’s determination
18
In considering plaintiff’s residual functional capacity, the ALJ recited all four above
19
limitations cited by Dr. Torrez (and echoed in Dr. Scaramozzino’s report), and stated that he
20
credited her opinion. See AR 15 & 16. However, the ALJ then rejected all four limitations cited
21
by both examining doctors, without any explanation, save that he did not find those “alleged
22
limitations,” whether asserted by plaintiff or by the examining doctors, to be “credible.” He
23
states:
24
25
26
[T]he claimant’s statements concerning the intensity, persistence
and limiting effects of these [his alleged] symptoms are not credible
to the extent they are inconsistent with the above residual functional
capacity assessment.
27
AR 16. The ALJ does not, however, identify which of plaintiff’s statements he is referring to, or
28
why they undermine plaintiff’s credibility. Nor does he explain why plaintiff’s statements about
19
1
these limitations are even relevant, when it was the two examining doctors who opined on the
2
functional limitations, not plaintiff. The ALJ does list several statements by plaintiff in the
3
following two paragraphs, but only one of them (discussed below), appears to have anything to do
4
with the four functional limitations discussed above. Although the ALJ is charged with
5
credibility determinations, the court does not simply accept a completely unsupported, boilerplate
6
assertion of lack of credibility. Rather, the credibility determination must have support in the
7
record:
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
An ALJ's “vague allegation” that a claimant's testimony is “not
consistent with the objective medical evidence,” without any
“specific findings in support” of that conclusion is insufficient for
our review. [Vasquez v. Astrue, 572 F.3d 586, 592 (9th
Cir. 2009)]. As our sister circuits have concluded, “[c]redibility
findings must have support in the record, and hackneyed language
seen universally in ALJ decisions adds nothing.” Shauger v.
Astrue, 675 F.3d 690, 696 (7th Cir.2012); see also Hardman v.
Barnhart, 362 F.3d 676, 679 (10th Cir. 2004). The ALJ must
identify the testimony that was not credible, and specify “what
evidence undermines the claimant's complaints.” Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir.1998).
Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014).
Indeed, the ALJ’s invocation of the particular boilerplate used here, coupled with a lack of
analysis, was specifically disapproved by the Ninth Circuit:
The ALJ did not, however, “specifically identify the testimony” he
found not credible. [Holohan v. Massanari, 246 F.3d 1195, 1208
(9th Cir. 2001)]. Rather, he made only the single general statement
that “the claimant's statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity
assessment.” ALJs routinely include this statement in their written
findings as an introduction to the ALJ's credibility determination.
See, e.g., Kamann v. Colvin, 721 F.3d 945, 949-51 (8th Cir. 2013);
Bjornson v. Astrue, 671 F.3d 640, 645-47 (7th Cir. 2012). After
making this boilerplate statement, the ALJs typically identify what
parts of the claimant's testimony were not credible and why. See,
e.g., Moore v. Colvin, 743 F.3d 1118, 1122 (7th Cir. 2014).
But here, the ALJ stopped after this introductory remark. This was
error and falls short of meeting the ALJ's responsibility to provide
“a discussion of the evidence” and “the reason or reasons upon
which” his adverse determination is based. 42 U.S.C. § 405(b)(1).
...
28
20
1
Nor is the error harmless. . . . [W]e cannot substitute our
conclusions for the ALJ's, or speculate as to the grounds for the
ALJ's conclusions. See Bunnell, 947 F.2d at 346. Although the
ALJ's analysis need not be extensive, the ALJ must provide some
reasoning in order for us to meaningfully determine whether the
ALJ's conclusions were supported by substantial evidence. . . .
2
3
4
5
Treichler, 775 F.3d at 1102-03.
Here, only one statement by plaintiff, identified by the ALJ, had any relation to the
6
7
functional limitations listed by Drs. Torrez and Scaramozzino. Specifically, the ALJ notes that
8
plaintiff “reported difficulty dealing with other people . . ..” AR 16. However, the ALJ does not
9
state why he finds this statement not credible, or what evidence in the record supports his
10
conclusion that it is not credible. Meanwhile, every other piece of evidence in the record fully
11
supports this statement, including the opinions of the two examining doctors, as discussed
12
above.15
13
The uncontradicted opinions of the examining doctors, Torrez and Scaramozzino,
14
constitute the only medical evidence offered at the hearing or mentioned by the ALJ regarding the
15
limitations listed above. The ALJ did not provide “clear and convincing” reasons for rejecting
16
the examining doctors’ opinions on plaintiff’s functional limitations, as required by Pitzer. Even
17
if the ALJ believed that there was contradictory evidence, he failed to provide “specific and
18
legitimate reasons,” supported by “substantial evidence in the record,” for rejecting their
19
opinions, as required by Lester. Under either standard, the court finds that the ALJ’s decision is
20
based upon legal error, and is not supported by substantial evidence. See Pitzer, 908 F.2d at 506
21
(“where the Secretary has failed to advance any legitimate reasons for disregarding the examining
22
physicians' medical findings, reports, and opinion, we hold that substantial evidence does not
23
support the Secretary's decision”).
24
25
26
27
15
The ALJ also states that “[n]one of his treating professionals have indicated further
limitations.” AR 16. However, there is no evidence in the record showing that any of the treating
professionals were ever asked to opine on the four functional limitations set forth above, or that
they offered any opinions on those limitations. Thus, the fact that they did not indicate “further
limitations,” does not appear to be relevant.
28
21
1
C. Remand
2
Plaintiff asserts that this matter should be remanded for immediate payment of benefits
3
rather than further proceedings. A remand for further proceedings is unnecessary if the record is
4
fully developed, and it is clear from the record that the ALJ would be required to award benefits.
5
Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). The decision whether to remand for
6
further proceedings turns upon the likely utility of such proceedings. Barman v. Apfel, 211 F.3d
7
1172, 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). Under the law of this Circuit, the court
8
must “direct the award of benefits in cases where no useful purpose would be served by further
9
administrative proceedings, or where the record has been thoroughly developed.” Varney v.
10
Sec'y of HHS, 859 F.2d 1396, 1399 (9th Cir. 1988) (citations omitted). The Ninth Circuit
11
adopted this rule because it “‘recognized the importance of expediting disability claims.’”
12
Holohan, 246 F.3d at 1210 (quoting Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994)).
13
“Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating
14
or examining physician, we credit that opinion ‘as a matter of law.’” Lester, 81 F.3d at 834
15
(quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989)). Accordingly, the court credits
16
the opinions of Drs. Torrez and Scaramozzino, finding that plaintiff was “markedly” or
17
“severely” impaired (or that his abilities were “fair” or “fair to poor”) in the four areas of
18
functioning listed above.
19
The ALJ has already obtained testimony from the Vocational Expert that a hypothetical
20
worker could not maintain any employment in the general economy if he tried to work with the
21
limitations found by the examining doctors. See AR 38-39. Moreover, the VE’s testimony that
22
such a worker could not maintain employment in the general economy, was not limited to his past
23
work, but applied to any work. See AR 38 (establishing that hypothetical individual with these
24
limitations could not work “in these jobs or any other jobs”) & 39 (same, cannot work “in the
25
general economy”). Accordingly, a remand to revisit the fourth sequential step or to complete the
26
fifth sequential step is not necessary.
27
28
The record is fully developed, and remand is unnecessary, as the only outcome here, based
on this record, is that plaintiff is disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(A).
22
1
VIII. CONCLUSION
2
For the reasons set forth above, IT IS HEREBY ORDERED that:
3
1. Plaintiff’s motion for summary judgment (ECF No. 14) is GRANTED;
4
2. The Commissioner’s cross-motion for summary judgment (ECF No. 20) is DENIED;
5
6
and
3. This matter is REVERSED and REMANDED to the Commissioner for an award of
7
benefits.
8
DATED: March 24, 2015
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