Ramirez v. Colvin

Filing 26

ORDER granting the plaintiff's summary-judgment motion 18 , denying the defendant's cross-motion for summary judgment 23 , and remanding the case for the calculation and award of benefits. (lblc1S, COURT STAFF) (Filed on 3/31/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 LUCINDA RAMIREZ, 13 Plaintiff, Case No. 15-cv-02988-LB ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 14 15 NANCY A. BERRYHILL, Defendant. 16 Re: ECF Nos. 18 & 23 17 INTRODUCTION 18 Plaintiff Lucinda Ramirez moves for summary judgment, seeking judicial review of a final 19 20 21 22 23 24 decision by the Commissioner of the Social Security Administration (“Commissioner”) denying her Supplemental Security Income (“SSI”) disability benefits under Title XVI of the Social Security Act.1 The Administrative Law Judge (“ALJ”) found that Ms. Ramirez suffered from the following severe impairments: irritable bowel syndrome (“IBS”) and depression,2 but held that Ms. Ramirez retained sufficient residual functional capacity (“RFC”) such that she did not qualify 25 26 27 Motion for Summary Judgment ‒ ECF No. 18 at 3. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 28 2 1 Administrative Record (“AR”) 31, Finding No. 2. ORDER — No. 15-cv-02988-LB 1 for SSI benefits.3 The Commissioner opposes Ms. Ramirez’s motion for summary judgment and 2 cross-moves for summary judgment.4 Under Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without 3 4 oral argument. All parties have consented to magistrate jurisdiction.5 The court grants the 5 plaintiff’s motion, denies the Commissioner’s cross-motion, and remands for the calculation and 6 award of benefits. 7 STATEMENT 8 9 1. Procedural History Ms. Ramirez filed her disability claim on June 10, 2011, alleging disability beginning 11 United States District Court Northern District of California 10 November 1, 2005.6 The Commissioner denied her claim initially on November 16, 2011, and 12 upon reconsideration on June 14, 2012.7 Ms. Ramirez appealed from the Commissioner’s decision and requested a hearing before the 13 14 ALJ.8 The ALJ held an initial hearing on December 10, 2012.9 Ms. Ramirez attended the hearing 15 unrepresented, and the ALJ postponed the hearing to allow her to obtain representation.10 Ms. 16 Ramirez failed to attend a hearing on February 14, 2013,11 but did attend, with legal counsel, at a 17 subsequent hearing on August 6, 2013, before ALJ Brenton L. Rogozen.12 A vocational expert 18 also attended the August 2013 hearing.13 On September 4, 2013, the ALJ issued its decision, 19 20 3 AR 33–38, Finding No. 4 & 6. 21 4 Cross-Motion ‒ ECF No. 23. 22 5 Consent Forms ‒ ECF Nos. 8, 9. 6 AR 29, 126, 295. 7 AR 126–27. 24 8 AR 144. 25 9 AR 88. 23 10 AR 90–91. 11 AR 176. 27 12 AR 98. 28 13 Id. 26 ORDER — No. 15-cv-02988-LB 2 1 finding that Ms. Ramirez suffered from IBS and depression,14 but concluding that Ms. Ramirez 2 retained sufficient residual functional capacity (“RFC”) such that she was not disabled and did not 3 qualify for SSI benefits.15 Ms. Ramirez requested review of the ALJ’s decision by the Appeals 4 Council,16 and the Appeals Council found that none of the information submitted by Ms. Ramirez 5 “provide[d] a basis for changing the Administrative Law Judge’s decision.”17 6 Based on an extension of time to file a federal suit,18 Ms. Ramirez filed this action and moved 7 for summary judgment or in the alternative for remand to the ALJ for further consideration.19 The 8 Commissioner responded and filed a cross-motion for summary judgment.20 Ms. Ramirez replied 9 to the Commissioner’s motion.21 10 United States District Court Northern District of California 11 2. Summary of Record and Administrative Findings 2.1 Medical Records 12 2.1.1 Dr. Scaramozzino: Ph.D., Psychology 13 Dr. Scaramozzino examined Ms. Ramirez on September 11, 2010, for a consultative 14 15 comprehensive psychiatric evaluation.22 Dr. Scaramozzino noted that Ms. Ramirez had driven 16 herself to the exam and was cooperative throughout the interview and appeared not to be 17 exaggerating her symptoms.23 Ms. Ramirez indicated that she was not “working too good . . . 18 mentally and physically” and was suffering from a “depressed mood” (“I cry everywhere. I’m sad 19 all the time”), had “chronic pain” (a level 6–7 on a scale of 1 to 10), lack of interest in pleasurable 20 21 14 AR 31. 22 15 AR 33‒38. 16 AR 24. 17 AR 8. 24 18 AR 1. 25 19 Motion for Summary Judgment ‒ ECF No. 18. 20 Cross-Motion ‒ ECF No. 23. 21 Reply ‒ ECF No. 24. 27 22 AR 267. 28 23 AR 267, 272. 23 26 ORDER — No. 15-cv-02988-LB 3 1 things, self-isolation, and “thoughts about self-harm, but with no current intent or plan.”24 She 2 reported a history of alcohol abuse but said that she had stopped drinking approximately six years 3 earlier at age 52.25 She recalled being sexually molested as a young girl.26 She said that she had 4 been seeing a counselor for free psychotherapy, which was improving her symptom 5 management.27 She reported medical problems of bleeding and diarrhea, which were being treated 6 and were starting to improve, but she suffered from “bladder and incontinence” issues.28 She also 7 reported living with her 80-year old mother for the past four years, who “underwrites all of her 8 expenses.”29 She is single and never has been married but has three adult children.30 She 9 previously worked for 22 years as a bartender, but stopped in 2002, reportedly because of her health.31 She reported having been arrested twice and jailed for four days and indicated that she 11 United States District Court Northern District of California 10 was no longer on probation.32 Dr. Scaramozzino stated that her dress was casual and presentable 12 and that her “hygiene was good,” as was her “eye contact.”33 Her speech was clear, easily 13 understood, logical, and coherent.34 Her attitude was “positive,” though her facial expressions 14 were “sad,” and she presented as “mildly depressed.”35 Dr. Scaramozzino reported that her ability 15 to act purposefully, think rationally, and deal effectively with her environment was moderately 16 impaired primarily due to her depressed mood.36 17 18 24 AR 267. 25 AR 268; see also AR 267 (noting that her age at the time of the exam was 58). 26 AR 267. 21 27 AR 268. 22 28 Id. 29 Id. 30 Id. 24 31 Id. 25 32 AR 269. 33 Id. 34 Id. 27 35 Id. 28 36 Id. 19 20 23 26 ORDER — No. 15-cv-02988-LB 4 Dr. Scaramozzino found that her knowledge, judgment, common sense, ability to distinguish 1 between similarities and differences, abstract thinking, memory recall, and attention and 3 concentration were not significantly impaired and were within normal ranges.37 Ms. Ramirez 4 reportedly described her “typical day” as “wake up, eat breakfast, take her medicine, organize her 5 day around household chores and errands. She ends up watching television, working in the garden, 6 and going to her doctor’s appointment.”38 She reported having no friends and no history of 7 physical altercations.39 Dr. Scaramozzino found that she did not meet the criteria for posttraumatic 8 stress disorder (“PTSD”) and had a current Global Assessment Function (“GAF”) score of 60 with 9 a low score of 55 within the last year.40 He reported that Ms. Ramirez’s symptom severity was in 10 the moderate range with a “fair to good” likelihood of improvement within the next 12 months as 11 United States District Court Northern District of California 2 she now had regular access to medical care. Dr. Scaramozzino noted that Ms. Ramirez’s attitude 12 about seeking employment was “good” and she has had a positive work history — though “[s]he 13 does not anticipate going back to being a bartender because of the possibility of regressing back to 14 drinking alcohol.”41 Dr. Scaramozzino concluded that Ms. Ramirez’s ability to (i) manage her own 15 funds, (ii) understand and remember very short simple instructions, (iii) understand and remember 16 detailed instructions, (iv) maintain concentration and attention, (v) accept instructions from a 17 supervisor and respond appropriately, (vi) interact with coworkers, and (vii) conduct daily 18 activities and social functioning were not significantly impaired, but that her ability to complete a 19 normal workday and workweek without interruptions at a consistent pace was moderately 20 impaired due to her depressed mood complicated by her medical conditions, as was her ability to 21 37 AR 270–71. 38 AR 271. 39 22 AR 270–71. 23 24 25 26 27 28 Id. A GAF score purports to rate a subject’s mental state and symptoms; the higher the rating, the better the subject’s coping and functioning skills. See Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014) (“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.”) (quotations omitted). “[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious impairment in social, occupational, or school functioning.’” Id. “A GAF score between 51 to 60 describes ‘moderate symptoms’ or any moderate difficulty in social, occupational, or school functioning.” Id. 40 41 AR 272. ORDER — No. 15-cv-02988-LB 5 1 deal with various changes in the workplace setting.42 It does not appear that Dr. Scaramozzino had 2 access to or reviewed Ms. Ramirez’s medical records as part of his evaluation.43 3 2.1.2 Dr. Wagner: Internal Medicine 4 Dr. Wagner examined Ms. Ramirez on September 16, 2010, for a comprehensive internal 5 medicine evaluation.44 Ms. Ramirez presented with chief complaints about “constant diarrhea,” 7 “bladder problems with incontinence,” and “depression and anxiety.”45 Dr. Wagner noted that she 8 reported “epigastric and diffuse abdominal pain” and a four-year history of diarrhea (with some 9 blood), reporting “approximately 30 bowel movements each day” and only occasional solid 10 stools.46 Ms. Ramirez also reported “bladder incontinence at all times.”47 As a result of these 11 United States District Court Northern District of California 6 conditions, Ms. Ramirez reported that when she goes out, she must take care to be aware of the 12 location of bathrooms.48 Ms. Ramirez said that she lives with her mother and does the cooking and 13 cleaning around the house.49 She also said that she is able to drive, go shopping, and has two small 14 dogs that she cares for.50 Dr. Wagner observed that her affect was somewhat depressed, but that 15 she was able to get up from a chair and walk to the exam room without assistance.51 She was able 16 to bend over to take her shoes off and otherwise easily move on and off the exam table.52 Dr. 17 Wagner conducted a physical exam, including range-of-motions evaluation and adnominal 18 probing.53 He reported no significant abdominal tenderness and normal bowel sounds, but noted 19 42 Id. 43 See AR 267. 21 44 AR 275. 22 45 Id. 46 Id. 47 Id. 24 48 AR 275–76. 25 49 AR 276. 50 Id. 51 Id. 27 52 Id. 28 53 AR 276–78. 20 23 26 ORDER — No. 15-cv-02988-LB 6 1 that he did not have her outside medical record to help assess the cause of her diarrhea and bladder 2 incontinence.54 Based on his examination, he concluded that Ms. Ramirez had no limitations on 3 sitting, walking, standing, lifting, or other workplace environment activities.55 4 2.1.3 Dr. Tuvera: Internal Medicine 5 Dr. Tuvera examined Ms. Ramirez on September 17, 2011, for a consultative comprehensive 6 internal medicine evaluation.56 Dr. Tuvera diagnosed Ms. Ramirez with “irritable bowel 8 syndrome” (“IBS”) and “depression.”57 Dr. Tuvera noted that she reported a history of IBS since 9 2004 manifested by frequent diarrhea and had a colonoscopy, which diagnosed her with IBS.58 10 Ms. Ramirez reported that she had been a heavy smoker and drinker but had quit both and had 11 United States District Court Northern District of California 7 tried medical cannabis, which helped with her symptoms.59 Ms. Ramirez stated that she had her 12 GED and other advanced education and had been babysitting for two years, bartending for 22 13 years, and working at a gasoline station for eight months.60 Dr. Tuvera observed that her demeanor 14 was calm and pleasant with good eye contact, she was easily able to get up from a chair and walk 15 to the exam room without assistance, and appeared comfortable in her chair and well nourished, 16 but her energy was “poor.”61 She was able to take her shoes off and otherwise easily move on and 17 off the exam table.62 Dr. Tuvera conducted a physical exam, including a range-of-motions 18 evaluation and probing for any tenderness in her abdomen.63 He reported no abdominal tenderness 19 or distending and positive bowel sounds.64 Based on his examination, he concluded that Ms. 20 54 23 24 25 26 27 28 AR 278–79. 56 AR 292. 57 AR 295. AR 292. 59 AR 293. 60 Id. 61 Id. 62 22 AR 277–78. 55 58 21 Id. 63 AR 293–94. 64 AR 293. ORDER — No. 15-cv-02988-LB 7 1 Ramirez should have no limitations on sitting, walking, standing for up to 6 hours, lifting capacity 2 of 50 pounds occasionally and 25 pounds frequently, and manipulative or other workplace 3 environment activities.65 It does not appear that Dr. Tuvera had access to or reviewed Ms. 4 Ramirez’s complete medical records as part of his evaluation.66 5 2.1.4 Dr. Tabbaa: Gastroenterologist 6 Dr. Tabbaa is a gastroenterologist and one of Ms. Ramirez’s treating physicians.67 Dr. 7 8 Tabbaa’s notes indicate that Ms. Ramirez had an “unremarkable”68 colonoscopy in 2008 and an 9 upper GI endoscopy in 2010 diagnosing esophagitis reflux, hiatal hernia, and gastritis for which treatment and medication were prescribed.69 On August 8, 2011, Ms. Ramirez presented with 11 United States District Court Northern District of California 10 “GERD” (gastroesophageal reflux disease) and IBS with “irregular bowel habits” and “[d]iarrhea 12 after eating.”70 Dr. Tabbaa recommended a follow-up with the GI clinic in two months and 13 consideration of “[a]no-rectal manometry” test to evaluate her symptoms of fecal incontinence or 14 constipation.71 On October 20, 2011, Ms. Ramirez again presented with GERD and IBS with 15 “irregular bowel habits.”72 On January 9, 2012, Ms. Ramirez had a follow-up exam based on her continued symptoms of 16 17 GERD and “cyclic diarrhea/constipation,” including “loose stools with poor anal sphincter 18 control.”73 Dr. Tabbaa noted “IBD” (presumably for “inflammatory bowel disease”) with “fecal 19 incontinence” and prescribed “Imodium.”74 On January 30, 2012, Ms. Ramirez presented again 20 21 65 AR 295. 22 66 See AR 292 (noting review of only two medical records). 67 See AR 307, 308, 342. 68 AR 307. 24 69 AR 283–84. 25 70 AR 342. 71 Id. 72 AR 308. 27 73 AR 307. 28 74 Id. 23 26 ORDER — No. 15-cv-02988-LB 8 1 with “bowel incontinence.”75 Dr. Tabbaa noted that the Imodium helped and ordered a refill on her 2 prescription.76 He also noted that she had lost weight, dropping from 150 to 144 pounds.77 3 On May 7, 2012, Ms. Ramirez again presented with symptoms of GERD, IBS, and 4 “incontinence.”78 Dr. Tabbaa noted that the Imodium helped and ordered a refill on her 5 prescription.79 Although it appears inconsistent with the January 30 outpatient records (where he 6 reported her weight dropping to 144 pounds), he noted that she had lost weight since her last visit, 7 dropping from 156 to 150 pounds.80 He recommended a follow-up exam with her primary care 8 physician, Dr. Melo, for a possible neurological referral.81 On November 5, 2012, Dr. Tabbaa examined Ms. Ramirez as part of a six-month follow-up.82 10 Dr. Tabbaa noted her reported irregular bowel habits with alternating diarrhea and constipation.83 11 United States District Court Northern District of California 9 He again noted that the “Imodium and Metamucil helped” and that she had been examined by Dr. 12 Palmer for “rectal prolapse” and was awaiting an endoscopic ultrasound.84 He also noted her 13 further weight loss from 150 pounds to 141 pounds.85 14 On February 12, 2013, Dr. Tabbaa completed a medical questionnaire on Ms. Ramirez.86 In it, 15 he confirmed his diagnosis of IBS and “fecal incontinence” and indicated that she needed surgery 16 for the fecal incontinence.87 He listed her symptoms as “Diarrhea, Constipation, wt. [weight] loss, 17 Abdominal Pain, Fecal incontinence, Reflux Symptomes [sic],” noting that the symptoms had 18 75 AR 421. 76 Id. 77 Id. 21 78 AR 424. 22 79 Id. 80 Id. 81 Id. 24 82 AR 398. 25 83 Id. 84 Id. 85 Id. 27 86 AR 494–98. 28 87 AR 494. 19 20 23 26 ORDER — No. 15-cv-02988-LB 9 lasted or could be expected to last more than 12 months and were poorly controlled with Imodium 2 and Metamucil and that “emotional factors” also contributed to the severity of the symptoms.88 3 Ms. Ramirez’s condition was affected by depression, anxiety, stress, a low fiber diet, and a GI 4 motility disorder.89 Her diarrhea was chronic, occurring an estimated six times per day and had 5 responded poorly to treatment, but that fecal incontinence could possibly benefit from surgery.90 6 Dr. Tabbaa checked the box on the questionnaire stating that she was “[c]apable of low stress 7 work” and thought that she could sit or stand for a period of only two hours each (presumably for a 8 total of four hours) in an eight-hour working day.91 Dr. Tabbaa noted that she would need access to 9 a restroom and would need to be able to take unscheduled breaks on one to two minutes’ notice 10 that would last an average of 20 minutes.92 Dr. Tabbaa said that Ms. Ramirez would sometimes 11 United States District Court Northern District of California 1 need to clean up and change clothes following a diarrhea episode on a “daily” basis and that she 12 could rarely lift less than 10 pounds and never lift more than 10 pounds.93 Dr. Tabbaa noted that 13 Ms. Ramirez could occasionally twist, stoop, and climb stairs or ladders, but rarely crouch or 14 squat, and her “attention and concentration” would be “off task” for 20% of the day due to her 15 symptoms, and she would experience both “good” and “bad” days, with her being absent for work 16 for “bad” days about four times a month.94 17 Dr. Tabbaa saw Ms. Ramirez again on April 15, 2013.95 His notes indicate that she was still 18 awaiting a rectal ultrasound and surgery for her rectal prolapse, but that her medications helped 19 her IBS and GERD symptoms and that she had gained weight from 141 pounds to 147 pounds.96 20 21 88 Id. 89 AR 495. 90 Id. 24 91 Id. 25 92 AR 496. 93 Id. 94 AR 497. 27 95 AR 522. 28 96 Id. 22 23 26 ORDER — No. 15-cv-02988-LB 10 2.1.5 Dr. Chan: Urologist 1 2 On October 1, 2012, Dr. Chan examined Ms. Ramirez.97 Dr. Chan noted Ms. Ramirez’s 3 reported symptoms of urinary and fecal incontinence and her “rectal prolapse” and “weak anal 4 sphincter” and referred her for a general surgery consultation for “stool incontinence” and “anal 5 sphincter incompetence.”98 6 2.1.6 Dr. Palmer: General/Colorectal Surgeon 7 On November 2, 2012, Ms. Ramirez was examined by Dr. Palmer for anal incontinence.99 Dr. 8 9 Palmer noted Ms. Ramirez’s “longstanding history of fecal incontinence.”100 Ms. Ramirez reported a “history of having accidents on a near-daily basis . . . with both liquid and solid stool,” 11 United States District Court Northern District of California 10 with “occasional rectal bleeding.”101 She said she takes Imodium 4 times a day to “decrease her 12 bowel movements” and experiences intermittent epigastric and lower abdominal pain.102 Dr. 13 Palmer performed an anorectal exam noting a wide or “patulous anal canal”103 and further 14 observed minimal sphincter tone and minimal squeeze pressure upon digital exam as well as 15 obvious full-thickness rectal prolapse.104 His post-exam impressions were “[f]ecal incontinence” 16 and “full-thickness rectal prolapse,” and he recommended an endoanal ultrasound to determine the 17 extent of sphincter injury, if any, as the appropriate next step.105 18 19 20 21 97 AR 409–10; see also AR 408 (identifying Dr. Chan). 98 AR 409–10. 99 22 AR 399–401. 23 24 100 AR 399. 25 101 Id. 102 Id. 103 AR 401. 27 104 Id. 28 105 Id. 26 ORDER — No. 15-cv-02988-LB 11 2.1.7 Dr. Melo & PA Marcus: Laurel Mental-Health Unit 1 2 Dr. Melo is a primary care physician and a treating physician.106 On October 20, 2011, Dr. 3 Melo saw Ms. Ramirez in the emergency room and treated her for depression.107 He prescribed an 4 antidepressant medication and noted that Ms. Ramirez was being evaluated for bipolar disorder at 5 a different facility.108 Ms. Ramirez said that she was taking care of a cousin and enjoys 6 gardening.109 Dr. Melo observed that she was tearful but had appropriate eye contact, was alert, 7 and appeared well-developed and well-nourished.110 8 Several weeks later, on November 2, 2011, Ms. Ramirez went to the Laurel Mental Health 9 Unit, where she reported symptoms that included depression and anxiety.111 Physician’s Assistant (“PA”) Marcus performed the initial assessment and noted that Ms. Ramirez reported symptoms 11 United States District Court Northern District of California 10 of depression, including depressed mood, excessive alcohol consumption, fatigue, feelings of 12 worthlessness/guilt, hopelessness, tearfulness, and some suicidal thoughts.112 Ms. Ramirez also 13 reported anxiety symptoms of fatigue, irritability, sleep disturbance, social anxiety, and 14 uncontrolled worry, and PTSD symptoms of avoidance, flashback, intrusive memories, and 15 nightmares.113 She reported difficulty falling asleep (but reported sleeping an average of eight 16 hours per night) and gaps in the long-term memory but denied any distractibility or short-term 17 attention span issues.114 She reported that her treatment with antidepressant medication and her use 18 of cannabis daily (if available) and alcohol two to three times per month, both alone and 19 socially.115 She reported stress arising from living with a cousin with mental-health issues, her 20 21 106 See, e.g., AR 425, 375, 480. 22 107 See AR 425–26. 108 Id. 109 Id. 24 110 Id. 25 111 AR 386–87. 112 AR 387. 113 Id. 27 114 Id. 28 115 Id. 23 26 ORDER — No. 15-cv-02988-LB 12 1 experience of childhood sexual molestation, and her admission to county jail on at least five 2 occasions for domestic violence against her last partner.116 PA Marcus found her cooperative with 3 appropriate dress, hygiene, eye contact, attention, and concentration, but depressed and tearful.117 4 He found her judgment and insight to be fair and her memory generally intact though not formally 5 tested.118 He concluded that she had “[m]ajor depression,” PTSD, and alcohol and cannabis 6 dependencies in remission with a GAF rating of 48, ranging from 55 to 48 in the past 12 months; 7 he also noted her reported IBS.119 8 Two weeks later, on November 17, 2011, Ms. Ramirez returned to the Laurel Mental Health 9 Unit and was seen by Dr. Melo who diagnosed her with depression and IBS.120 Evaluation records reflect that she was started on Prozac medication and note that she cares for a cousin and 11 United States District Court Northern District of California 10 acknowledges that she is a valuable member of her family.121 Dr. Melo also noted that Dr. Tabbaa 12 saw Ms. Ramirez for her IBS and thought that her symptoms could be anxiety related.122 Ms. 13 Ramirez reported continued “abdominal pain, frequent diarrhea and occasional blood in stool,” but 14 none currently.123 At this time, a Dr. Rosa noted that Ms. Ramirez’s IBS could benefit from non- 15 pharmacological treatments such as stress-reduction exercise and a healthy diet.124 On December 1, 2011, Ms. Ramirez had a follow-up appointment with PA Marcus and 16 17 reported improvement in her mood, but increases in “bloody diarrhea” and “abdominal 18 distention.”125 PA Marcus noted that Ms. Ramirez was still living with her mentally ill cousin, 19 which was stressful, but she planned to move home with her mother.126 20 116 23 24 25 26 27 28 Id. 118 Id. 119 AR 388‒90. AR 375. 121 AR 376. 122 Id. 123 Id. 124 22 AR 388. 117 120 21 Id. 125 AR 360. 126 Id. ORDER — No. 15-cv-02988-LB 13 On January 30, 2012, Ms. Ramirez had another follow-up appointment and reported to PA 1 2 Marcus a decrease in her depression symptoms since going on medication, but said that she was 3 still having “episodes of nervousness” related to her “IBS symptoms.”127 On May 23, 2012, Ms. Ramirez had another follow-up appointment with Dr. Melo.128 Dr. 4 Melo noted that Ms. Ramirez had a long history of reported progressive bladder and bowel 6 “incontinence” problems (and occasional bloody stools) and had been seeing Dr. Tabbaa for years 7 but had been unable to identify the etiology/source despite two colonoscopies, which were 8 unremarkable, and that Dr. Tabbaa had recommended a referral to a neurologist.129 Dr. Melo noted 9 that she continued to exhibit for depression and was nervous/anxious, and had reported that she 10 stopped taking her anti-depression medication because “it made her stay in bed all day.”130 Dr. 11 United States District Court Northern District of California 5 Melo physically examined Ms. Ramirez and noted that she exhibited “slightly diminished rectal 12 tone, brown stool, no gross blood, no external hemorrhoids.”131 On May 29 and August 10, 2012, Ms. Ramirez saw a licensed clinical social worker 13 14 (“LCSW”) to help develop coping strategies for her depression.132 On May 31, June 28, July 12, August 22, and October 25, 2012, Ms. Ramirez met with PA 15 16 Marcus.133 During the May 2012 follow-up, PA Marcus noted her continued feelings of sadness, 17 fatigue, and flashbacks of past abuse, and assigned her a GAF rating of 48.134 During her June 18 2012 follow-up, she acknowledged stopping her anti-depression medications due to increased 19 abdominal pain and reported continued symptoms of depression and nervousness.135 She noted 20 that her SSI claim resolved and that it had been determined that she can work, but that she planned 21 127 AR 486. 128 AR 480. 129 Id. 24 130 Id. 25 131 AR 481. 132 AR 474, 455. 133 AR 470, 464. 27 134 AR 470–71. 28 135 AR 464. 22 23 26 ORDER — No. 15-cv-02988-LB 14 1 to appeal that decision.136 She indicated that she was working informally as a part-time babysitter 2 one time a month.137 PA Marcus assigned her a GAF rating of 50.138 At the July 2012 follow-up, 3 she again indicated improvement in energy level since taking a new medication but still presented 4 with feelings of sadness, nervousness, and worthlessness as well as “frequent bloody bowel 5 movements.”139 PA Marcus again assigned her a GAF rating of 50.140 At the August 2012 follow- 6 up, she again indicated improvement in energy level, but still had feelings of sadness, 7 nervousness, and worthlessness as well as “frequent bladder and bowel incontinence episodes, 8 [e]specially when lifting weights,” noting that such “episodes had happened when babysitting.”141 9 PA Marcus assigned her a GAF rating of 55.142 At the October 2012 follow-up, she again indicated improvement in energy level, but still had feelings of nervousness and irritability that 11 United States District Court Northern District of California 10 were not responsive to the LCSW’s suggested deep breathing exercises.143 She also said that she 12 still had “abdominal distension and bloody diarrhea” and noted that she was “interested in 13 providing information of recent Medical diagnosis to SS in order to support her claim for social 14 security benefits.”144 PA Marcus assigned her a GAF rating of 55.145 On February 5, 2013, PA Marcus and a Dr. Fernandez jointly signed a medical questionnaire 15 16 for Ms. Ramirez.146 In it, they noted that Ms. Ramirez suffers from “Major Depression Recurrent,” 17 recapped her symptoms, treatments, and medications, and maintained her current GAF rating of 18 55.147 They opined that her ability to do unskilled labor on a variety of dimensions is “seriously 19 136 Id. 137 Id. 21 138 Id. 22 139 AR 456. 140 AR 457. 141 AR 453. 24 142 AR 457. 25 143 AR 448. 144 Id. 145 AR 449. 27 146 AR 514–19. 28 147 AR 514–15. 20 23 26 ORDER — No. 15-cv-02988-LB 15 1 limited” and ticked the box designating that she would likely manifest noticeable difficulty 11% to 2 20% of the workday.148 They reached similar conclusions for her ability to do semiskilled or 3 skilled work or to do particular types of jobs with public interaction and other specific elements.149 4 They noted that Ms. Ramirez does not have a low IQ or psychiatric sensitivity that would 5 exacerbate her physical symptoms.150 They reported that Ms. Ramirez has “Marked” (which is 6 defined in the questionnaire as “more than moderate but less than extreme”) restrictions on her 7 “daily living” activities, “[d]ifficulties in maintaining social functioning” and “[d]ifficulties in 8 maintaining concentration, persistence or pace.”151 They opined that she was likely to experience 9 four or more episodes of decompensation within a 12-month period, each lasting two weeks or more.152 They concluded by anticipating that Ms. Ramirez’s mental impairments would cause her 11 United States District Court Northern District of California 10 to be absent more than four days a month and that her impairments have been present since 12 November 2, 2011.153 PA Marcus had follow-up sessions with Ms. Ramirez on January 24, March 11, April 11, May 13 14 14, and June 18, 2013.154 At the January 2013 session, PA Marcus noted that Ms. Ramirez 15 reported daily experience of incontinence of urine and stools that prevented her from engaging in 16 any substantial gainful activity.155 At the May 2013 session, Ms. Ramirez stated that the 17 medication was increasing her diarrhea episodes and that she was continuing to smoke cannabis 18 because it helps with her mood and with the diarrhea.156 PA Marcus noted a GAF rating of 55.157 19 20 21 148 AR 516. 22 149 AR 517. 150 Id. 151 AR 518. 24 152 Id. 25 153 AR 519. 154 AR 553, 543, 534, 527. 155 AR 553. 27 156 AR 534. 28 157 AR 535. 23 26 ORDER — No. 15-cv-02988-LB 16 1 Both PA Marcus and the LCSW noted that Ms. Ramirez was unhappy with the delay on her 2 disability claim and reported that it was “straining” her relationship with her then lawyer.158 At the June 2013 session, PA Marcus noted that she continues to be “depressed” and “tired due 3 4 to chronic weakness in her arms and limitations due to fecal/urinary incontinence” related to 5 IBS.159 She is “[n]ot involved in substantial any gainful activity due to chronic physical limitations 6 and sadness, distractibility memory impairment related to her depressive symptoms.”160 PA 7 Marcus continued to classify her memory as “normal memory (recent and remote)” and her 8 “[a]ttention and concentration” as normal.161 PA Marcus maintained her GAF rating at 55.162 9 2.2 Ms. Ramirez’s Testimony 11 United States District Court Northern District of California 10 On August 6, 2013, Ms. Ramirez testified before the ALJ.163 Her attorney first asked Ms. 12 Ramirez about her educational background and work history.164 Ms. Ramirez said that she had 13 completed her GED165 and worked for 22 years as a bartender until 2004, when she stopped 14 because she “could not hold [her] urine or [her] bowel movements” and because she quit drinking 15 alcohol and left, in part, to help maintain her sobriety.166 She then worked at a gas station initially 16 as a cashier and then doing maintenance work for approximately eight months, but her “problem” 17 of “diarrhea” and “cramping” “continued to get worse.”167 She worked the night shift alone and 18 was once robbed, which made her nervous and fearful.168 The gas station had only a public 19 20 158 See AR 544, 549–50. 21 159 AR 527. 22 160 Id. 161 Id. 162 AR 528. 24 163 AR 98–118. 25 164 AR 101. 165 Id. 166 AR 101–02. 27 167 AR 102. 28 168 AR 103. 23 26 ORDER — No. 15-cv-02988-LB 17 1 restroom, which meant there were times when it was occupied when she needed to use it.169 She 2 lived close by, and she would sometimes drive to her home to use the bathroom — and to change 3 clothes if she had an accident on the way.170 Ms. Ramirez noted that sometimes she would get only 4 half a minute’s notice of a bowel movement or other times no notice at all, “like releasing gas,” 5 and that it was “embarrassing.”171 She said she eventually “couldn’t take it” and “quit the job.”172 Ms. Ramirez testified that she previously applied for benefits but did not pursue it, and that her 6 condition has gotten worse.173 She said that she stays at home “all the time” where she has “less 8 accidents,” and uses “pads of different sizes,” “diapers,” and “a pad covering her mattress” and 9 can change her clothes.174 Without her medication, Imodium, she said “it was one constant bowel 10 movement” with stomach and rectal pain.175 She found it was “better” to go and stay in the shower 11 United States District Court Northern District of California 7 until it was over.176 Ms. Ramirez also noted that she suffered from both fecal and urinary 12 incontinence and takes four Imodium tablets every four hours, which “keeps it under control.”177 13 She went on to state that “[w]ith more stress, the more I have to use the bathroom . . . 20 to 30 14 times a day.”178 If things are minimally controlled, seven to ten times a day.179 15 Ms. Ramirez testified that there were moisture issues even when she was not experiencing 16 fecal or urinary incontinence because of a prolapsed rectum and uterus.180 She indicated that she 17 was awaiting a rectal ultrasound for her prolapsed rectum but that it was delayed while her 18 19 169 AR 104. 170 Id. 21 171 Id. 22 172 AR 102. 173 AR 105; see also AR 124–25 (dismissing a 2009 appeal to an ALJ for failure to appear). 174 Id. 24 175 AR 106. 25 176 Id. 177 AR 106–08. 178 AR 109. 27 179 AR 110. 28 180 AR 110–11; see also AR 281 (history of uterine prolapse) and AR 401 (rectal prolapse). 20 23 26 ORDER — No. 15-cv-02988-LB 18 1 medical coverage issues were sorted out (but that she was willing to have the necessary corrective 2 procedures).181 3 Ms. Ramirez then testified about her psychiatric condition and treatment, stating that she 4 “started falling apart” and “couldn’t stop crying.”182 She related that she was seeking help at rape 5 crisis center because of a recently remembered childhood molestation.183 Ms. Ramirez agreed that 6 her IBS symptoms were exacerbated by stress and anxiety.184 She observed that “[w]hen I have an 7 accident in public, maybe nobody else would know but I do and it takes me a long time to get over 8 that all by myself . . . . I can’t face the public.”185 Asked if she could manage if her work were not 9 involved with the public, she replied “then maybe I could work something out,” but did not know 10 whether she could “still concentrate and continue to do her work.”186 Ms. Ramirez submitted an “exertional questionnaire” dated July 1, 2011, where she described United States District Court Northern District of California 11 12 the limitations on her activities associated with her diarrhea issues. 187 13 14 2.3 Vocational Expert Testimony: Darlene McQuary 15 Darlene McQuary, a vocational expert (“VE”), testified at the hearing on August 6, 2013.188 16 The ALJ first asked the VE to classify Ms. Ramirez’s past work, which the ALJ limited to her 17 more recent work at the gas station.189 Ms. Ramirez’s attorney then asked a hypothetical question: 18 if a person with the same vocational background as Ms. Ramirez had the limitations outlined by 19 Dr. Tabbaa in his February 12, 2013 questionnaire190 (including walking only two city blocks 20 21 181 AR 111. 22 182 AR 111–13. 183 AR 112. 184 AR 109, 116. 24 185 AR 117. 25 186 Id. 187 AR 217–19. 188 AR 117. 27 189 AR 118. 28 190 AR 118–19. See also AR 494–98. 23 26 ORDER — No. 15-cv-02988-LB 19 1 without stopping, sitting or standing for only two hours each (for a total of four hours per eight- 2 hour work day), taking unscheduled breaks every 90–120 minutes lasting an average of 20 3 minutes each, lifting only 10 pounds rarely and never anything more, and requiring to be off work 4 20% of the time, et cetera), whether such a person could perform Ms. Ramirez’s past work.191 The 5 vocational expert testified that such a person could not, and that no other work would be 6 available.192 7 8 2.4 Administrative Findings 9 The ALJ held that Ms. Ramirez was not disabled within the meaning of the Social Security 10 Act from June 10, 2011, the date the application was filed.193 United States District Court Northern District of California 11 The ALJ observed that the Commissioner has established a sequential five-step evaluation 12 process to determine if an individual is disabled.194 At step one, the ALJ must determine whether 13 the individual is engaging in “substantial gainful activity.”195 At step two, the ALJ must determine 14 whether the individual has a “medically determinable impairment” that is “severe” or a 15 combination of impairments that is “severe.”196 At step three, the ALJ must determine whether the 16 individual’s impairments are severe enough to meet a “listed” impairment.197 At step four, the ALJ 17 must determine the individual’s “residual functional capacity” and determine whether the 18 individual can perform “past relevant work.”198 At step five, the ALJ must determine whether the 19 individual can perform any other work.199 20 21 191 AR 118–19. 192 AR 119. 193 AR 29–38. 24 194 AR 29–30. 25 195 Id. at 30. 196 Id. 197 Id. 27 198 Id. 28 199 AR 30–31. 22 23 26 ORDER — No. 15-cv-02988-LB 20 At step one, the ALJ found that that Ms. Ramirez had not engaged in substantial gainful 1 2 activity since June 10, 2011, the application date.200 At step two, the ALJ found that Ms. Ramirez had the following severe impairments: “irritable 3 4 bowel syndrome and depression.”201 The ALJ found that because these impairments had “lasted 5 more than 12 months” and were “more than a limitation” on Ms. Ramirez’s “physical or mental 6 ability to do basic physical work activities,” they were “severe.”202 At step three, the ALJ found that Ms. Ramirez did not have an impairment or combination of 7 8 impairments that met or medically equaled the severity requirements for any listed impairment.203 At step four, the ALJ reviewed and assessed the medical and other evidence and determined 9 that Ms. Ramirez has the “residual functional capacity [(“RFC”)] to perform medium work as 11 United States District Court Northern District of California 10 defined in CFR 416.967(a) and she can lift and carry 25 pounds frequently, 50 pounds 12 occasionally, sit for six hours in an eight-hour workday and stand/walk for six hours in an eight- 13 hour workday with the mental functional capacity for work involving simple repetitive tasks.”204 14 In reaching this conclusion, the ALJ granted “little weight” to the findings of the treatment 15 providers Drs. Tabbaa and PA Marcus and Dr. Fernandez.205 The ALJ also found that Ms. 16 Ramirez’s “statements concerning the intensity, persistence and limiting effects of [her] symptoms 17 [were] not entirely credible for the reasons explained in this decision.”206 Based on this RFC 18 finding, the ALJ determined that she “is capable of performing past relevant work as a clerk 19 cashier and janitorial worker.”207 20 21 22 200 AR 31. 201 Id. 24 202 Id. 25 203 AR 31–32. 204 AR 33. 205 AR 36. 27 206 AR 34. 28 207 AR 37. 23 26 ORDER — No. 15-cv-02988-LB 21 Because the ALJ determined that Ms. Ramirez had the RFC to perform past relevant work, the 1 2 ALJ did not go to step five to determine whether Ms. Ramirez could perform any other work.208 3 The ALJ determined that Ms. Ramirez was not disabled from June 10, 2011, the date the 4 application was filed.209 5 ANALYSIS 6 7 1. Standard of Review 8 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 9 Commissioner if the claimant initiates the suit within 60 days of the decision. District courts may set aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error 11 United States District Court Northern District of California 10 or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 12 586, 591 (9th Cir. 2009) (internal quotations omitted); 42 U.S.C. § 405(g). “Substantial evidence 13 means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 15 1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports both the ALJ’s 16 decision and a different outcome, the court must defer to the ALJ’s decision and may not 17 substitute its own decision. See id. at 1039–40; Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 18 1999). 19 20 2. Applicable Law 21 An SSI claimant is considered disabled if he or she suffers from a “medically determinable 22 physical or mental impairment which can be expected to result in death or which has lasted or can 23 be expected to last for a continuous period of not less than twelve months,” and the “impairment 24 or impairments are of such severity that he is not only unable to do his previous work but cannot, 25 26 27 208 See AR 37–38. 28 209 AR 37. ORDER — No. 15-cv-02988-LB 22 1 considering his age, education, and work experience, engage in any other kind of substantial 2 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A), (B). 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 There is a five-step analysis for determining whether a claimant is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as follows: Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). Step Four. Considering the claimant’s residual functional capacity (“RFC”), is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. See 20 C.F.R. § 404.1520(a)(4)(v). 22 For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At 23 step five, the burden shifts to the Commissioner to show that the claimant can do other kinds of 24 work. Id. 25 26 27 28 ORDER — No. 15-cv-02988-LB 23 1 3. Application 2 Ms. Ramirez alleges that the ALJ erred by failing to (a) properly evaluate and weigh the 3 medical opinion evidence when making his RFC finding (both as to Ms. Ramirez’s physical and 4 mental impairments) and (b) provide clear and convincing evidence of a specific and legitimate 5 basis for finding that Ms. Ramirez’s testimony was “not entirely credible.”210 6 7 3.1 ALJ Erred by Failing to Properly Evaluate and Weigh the Medical Opinion Evidence 8 The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 10 at 1039). An ALJ may not, however, interject or substitute her own medical opinion or diagnosis 11 United States District Court Northern District of California 9 for that of the claimant’s physician. See Tackett, 180 F.3d at 1102–03; Day v. Weinberger, 522 12 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his own medical assessment 13 beyond that demonstrated by the record); see also Ladue v. Chater, No. C-95-0754 EFL, 1996 WL 14 83880, at *3 (N.D. Cal. Feb. 16, 1996) (stating that “[d]isability hearings are not adversarial in 15 nature” and “the ALJ has duty to develop the record” and “inform himself about [the] facts,” even 16 if “the claimant is represented by counsel”). 17 In weighing and evaluating the evidence, the ALJ must consider the entire case record, 18 including each medical opinion in the record, together with the rest of the relevant evidence. 20 19 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 20 court must [also] consider the entire record as a whole and may not affirm simply by isolating a 21 specific quantum of supporting evidence.”) (internal quotations omitted)). Social Security regulations distinguish between three types of physicians: treating physicians; 22 23 examining physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more 25 weight than an examining physician’s, and an examining physician’s opinion carries more weight 26 27 28 Motion for Summary Judgment – ECF No. 18 at 3, 10; see also AR 34 (finding that Ms. Ramirez’s “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely credible for the reasons explained in this decision”). 210 ORDER — No. 15-cv-02988-LB 24 1 than a reviewing [non-examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th 2 Cir. 2001) (citing Lester, 81 F.3d at 830); see also Sprague v. Bowen, 812 F.2d 1226, 1231 (9th 3 Cir. 1987) (the opinion of a treating physician is generally given the greatest weight because the 4 treating physician “is employed to cure and has a greater opportunity to know and observe the 5 patient as an individual”); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed 7 standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of 8 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the] 9 uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing 10 reasons that are supported by substantial evidence.” Id. (alteration in original) (internal quotations 11 United States District Court Northern District of California 6 omitted). If the ALJ finds that the opinion of a treating physician is contradicted, the ALJ must 12 provide “specific and legitimate reasons supported by substantial evidence in the record.” Reddick 13 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotations omitted); see also Garrison, 759 14 F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s 15 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported 16 by substantial evidence.”) (internal quotations omitted)). “Where an ALJ does not explicitly reject 17 a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over 18 another, he errs.” Id.; see also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating source’s 19 opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well- 20 supported by medically acceptable clinical and laboratory diagnostic techniques and is not 21 inconsistent with the other substantial evidence in [the claimant’s] case record, we will give it 22 controlling weight.”). 23 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 24 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 25 Security] Administration considers specified factors in determining the weight it will be given.” 26 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 27 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 28 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. ORDER — No. 15-cv-02988-LB 25 1 § 404.1527(b)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any 2 medical opinion, not limited to the opinion of the treating physician, include the amount of 3 relevant evidence that supports the opinion and the quality of the explanation provided[,] the 4 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 5 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)). Even if the treating 6 physician’s opinion is not entitled to controlling weight, it still is entitled to deference. See id. at 7 632 (citing SSR 96-02p at 4 (Cum. Ed. 1996), 61 Fed. Reg. 34,490, 34,491 (July 2, 1996)). 8 Indeed, “[i]n many cases, a treating source’s medical opinion will be entitled to the greatest weight 9 and should be adopted, even if it does not meet the test for controlling weight.” Id. (quoting SSR 10 96-02p at 4). United States District Court Northern District of California 11 Finally, an “ALJ errs when he rejects a medical opinion or assigns it little weight” without 12 explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es] 13 it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 14 759 F.3d at 1012–13. Here, the ALJ found that Ms. Ramirez’s “impairments could reasonably be expected to cause 15 16 the alleged symptoms,” but the “frequency or severity” of her impairments were such that they 17 would not “interfere significantly with her ability to work,” and she had the residual functional 18 capacity [RFC] to perform medium work.”211 In doing so, the ALJ gave “little weight” to the 19 opinion of the treating physician Dr. Tabbaa about Ms. Ramirez’s physical impairments or to the 20 opinions of PA Marcus and Dr. Fernandez about her mental impairments.212 Because the 21 examining physicians’ conclusions contradicted the treating physicians’ conclusions, the court 22 reviews the ALJ’s determination on the more deferential “substantial evidence” standard to ensure 23 that the decision was based on “specific and legitimate reasons supported by substantial evidence 24 in the record,” rather than on the “clear and convincing” evidence standard for “uncontradicted ” 25 medical evidence. See Garrison, 759 F.3d at 1012; Ryan, 528 F.3d at 1198. 26 27 211 AR 33–34. 28 212 AR 35–36. ORDER — No. 15-cv-02988-LB 26 In giving little weight to the treating physicians and other treatment providers, the ALJ focused 1 primarily on the February 12, 2013 questionnaire completed by Dr. Tabbaa indicating significant 3 physical limitations in all areas of functioning (e.g., lifting more than ten pounds, sitting or 4 standing more than a total of four hours per day, et cetera) and on a February 5, 2013 5 questionnaire completed by PA Marcus and signed by PA Marcus and Dr. Fernandez, indicating 6 “marked” mental impairment of Ms. Ramirez in all areas of functioning and frequent (four or 7 more per year) periods of decompensation lasting two weeks or more.213 The ALJ specifically 8 found that the conclusions in the two questionnaires were inconsistent with (or not supported by) 9 (i) earlier treatment notes (including treatment notes from Dr. Tabbaa and PA Marcus), (ii) Ms. 10 Ramirez’s daily activities, and (iii) the medical opinions provided by the examining consultative 11 United States District Court Northern District of California 2 physicians, Dr. Tuvera and Dr. Scaramozzino.214 Specifically, the ALJ noted that Dr. Tabbaa’s determinations — that Ms. Ramirez could 12 13 “rarely” lift less than ten pounds and could sit/walk/stand for only two hours in an eight-hour 14 workday — were unsupported by the medical evidence, including an October 13, 2011 exam, 15 purportedly by Dr. Tabbaa, in which he noted that Ms. Ramirez showed “normal effort on 16 respiration and normal findings on cardiovascular” and a “normal” mood.215 A review of the 17 record, however, reveals that the observations on October 13, 2011, were not made by Dr. Tabbaa, 18 but instead were made by an ER physician, who saw Ms. Ramirez when she was seeking a refill 19 for an anti-depressant medication.216 To the extent that the reasons that the ALJ identifies for 20 discrediting a treating physician’s findings are contradicted by the record, they are not legitimate. 21 See Garrison, 759 F.3d at 1012 (ALJ must show “legitimate reasons that are supported by 22 substantial evidence” to reject a treating physician’s opinion); cf. Roberts v. Shalala, 66 F.3d 179, 23 184 (9th Cir. 1995) (upholding the ALJ’s decision to reject an examining medical provider’s 24 25 26 213 Id. See also AR 494–97 (Tabbaa Questionnaire) & AR 514–19 (Marcus & Fernandez Questionnaire). 214 AR 35–37. 27 215 AR 35. 28 216 AR 310–13 (record of ER visit by Ms. Ramirez with a Dr. Walls on 10/13/11). ORDER — No. 15-cv-02988-LB 27 1 assessment which conflicted with the provider’s own medical reports and testing). As such, the 2 ALJ erred in relying on this part of the record to support his assertion that Dr. Tabbaa’s responses 3 on the February 12, 2013 questionnaire were inconsistent with his previous treatment 4 observations.217 The ALJ next concluded that treatment notes on November 2, 2011 — indicating “weight 5 6 gain” — were “inconsistent” with the “extreme limitations assessed by Dr. Tabbaa which he 7 attributed to [Ms. Ramirez’s] bowel problems.”218 The “weight gain” reference in the ALJ’s 8 decision appears to refer to an “x” mark under “Appetite” with the options of marking either 9 “weight gain” or “weight loss” entered by PA Marcus on Ms. Ramirez’s intake evaluation for mental-health services on November 2, 2011.219 The ALJ presumably cites to this point because 11 United States District Court Northern District of California 10 Dr. Tabbaa had diagnosed “wt. loss” as part of his responses on the February 12, 2013 12 questionnaire.220 13 First, it is unclear to what extent the ticking of a box noting “weight gain” in 2011 in the 14 context of a mental-health form is inconsistent, contradictory, or even necessarily clinically 15 relevant to Dr. Tabbaa’s findings of Ms. Ramirez’s “extreme limitations” (as they were 16 characterized by the ALJ), especially given the lack of any additional context, information, or 17 analysis.221 Second, to the extent the ALJ cited it to specifically discredit Dr. Tabbaa’s finding of 18 “wt. loss” and thereby more generally to undermine some of the arguably more questionable 19 findings in Dr. Tabbaa’s February 13, 2013 questionnaire, it fails to do so. As noted below, 20 although not without variations and discrepancies, the record shows that in the year that followed 21 the November 2, 2011 “weight gain” notation cited by the ALJ, Ms. Ramirez lost significant 22 weight; her weight dropped from over 160 pounds on November 2, 2011,222 to 138 pounds 23 24 217 See AR 35. 25 218 Id. 219 AR 387. 220 AR 494. 27 221 AR 35. 28 222 AR 386. 26 ORDER — No. 15-cv-02988-LB 28 1 precisely one year later on November 2, 2012.223 Accordingly, Dr. Tabbaa’s finding of “wt. loss” 2 several months later on February 13, 2013 — when Dr. Tabbaa completed the questionnaire — is 3 not inconsistent with or undermined by the “weight gain” notation on the November 2, 2011 4 evaluation and as such is not “legitimate” and “substantial evidence” to discredit Dr. Tabbaa’s 5 findings. See Garrison, 759 F.3d at 1012. The ALJ then cited Ms. Ramirez’s 2010 upper GI endoscopy and its resulting diagnoses, 7 prescribed therapy, and recommended follow-up.224 Given that the gravamen of Ms. Ramirez’s 8 complaint is depression and IBS, and more specifically, the associated frequent unscheduled 9 bowel movements (often accompanied with diarrhea and fecal (and urinary) incontinency), this 10 reference to her upper GI issues adds little, if anything, to the analysis of her impairments and 11 United States District Court Northern District of California 6 their severity or to the weight that Dr. Tabbaa’s diagnosis and accompanying assessment of her 12 ability to work should be given. The ALJ then notes that Ms. Ramirez has received only 13 “conservative therapies”225 without making any assessment of their efficacy (or lack thereof), 14 other than noting elsewhere in the decision that her treating physician had found that she had been 15 “helped” by prescribed medication for her acid reflux and IBS.226 While a claimant’s favorable 16 response to minimal and conservative treatment can be evidence undermining the alleged severity 17 of a claimant’s condition, see Tommasetti v. Astrue, 533 F.3d 1035, 1039–40 (9th Cir. 2012), the 18 ALJ’s decision does not provide sufficient analysis to determine whether it was a legitimate basis 19 to discredit the treating physician’s opinion. See Garrison, 759 F.3d at 1012 (ALJ’s reasons for 20 discrediting or crediting one medical opinion over another must be “legitimate” and supported by 21 substantial evidence). The ALJ then gave “significant weight” to the assessment of examining physicians Drs. 22 23 Tuvera and Scaramozzino.227 While the ALJ acknowledged the limitations inherent in their “one- 24 223 25 AR 402; see also AR 398 (Dr. Tabbaa noting her weight dropping to 141 pounds as of November 5, 2012). 27 28 224 AR 35. 225 26 AR 35–36. 226 AR 34. 227 AR 37. ORDER — No. 15-cv-02988-LB 29 1 time” only interactions with Ms. Ramirez, he credited their status as “qualified physicians,” their 2 “objective examinations” and “detailed clinical findings,” and their familiarity “with the 3 Commissioner’s regulations for evaluating disability.”228 “[T]he ALJ can reject the opinion of a 4 treating physician in favor of the conflicting opinion of another examining physician if the ALJ 5 makes findings setting forth specific, legitimate reasons for doing so that are based on substantial 6 evidence in the record.” Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (internal 7 quotations omitted). Here, the ALJ failed to provide such specific and legitimate reasons 8 supported by substantial evidence. See id. Moreover, as the Ninth Circuit noted in Orn, “[w]hen an examining physician relies on the 9 same clinical findings as a treating physician, but differs only in his or her conclusions, the 11 United States District Court Northern District of California 10 conclusions of the examining physician are not ‘substantial evidence.’” 495 F.3d at 632. Here, the 12 examining physicians confirmed the diagnoses of IBS and depression, but differed from the 13 treating physicians in their conclusions as to the severity and impact of those impairments.229 As 14 such, under Orn, to the extent that the conclusions of the examining physicians, as opposed to 15 their “clinical findings,” differ from Dr. Tabbaa’s and any other treating physicians’ conclusions, 16 they are not substantial evidence. See id. Likewise, the ALJ failed to cite specific, legitimate reasons supported by substantial evidence 17 18 to give “little weight” to the findings of Dr. Fernandez in the questionnaire prepared by PA 19 Marcus and signed by PA Marcus and Dr. Fernandez regarding Ms. Ramirez’s mental 20 impairments and their impact on her ability to work.230 This despite there being, arguably, some 21 conclusions and opinions in the questionnaire that may not be well-supported by the record231 and 22 what may be Dr. Fernandez’s limited interactions with Ms. Ramirez.232 In assessing Dr. 23 228 24 25 See AR 295, 278, 267, 272–73 (noting consulting physicians’ diagnoses and conclusions), AR 494– 98 (treating physician’s conclusions). 230 26 27 Id. 229 AR 35–36. See AR 518 (noting “functional limitations” of four or more episodes of decompensation lasting at least 12 weeks or more). 231 232 28 The medical record shows extensive interactions between PA Marcus and Ms. Ramirez but does not document extensive interactions between Dr. Fernandez and Ms. Ramirez. ORDER — No. 15-cv-02988-LB 30 1 Fernandez’s findings, the ALJ found (based primarily on the evaluations by the examining 2 physicians, Dr. Scaramozzino and Dr. Tuvera) that Ms. Ramirez’s routine activities — taking care 3 of her personal dress and hygiene, routinely taking her medicine, doing household chores, running 4 errands, gardening, watching TV, walking her dogs, caring for a relative, and shopping — all 5 evidenced her ability to “think and communicate and act in her own best interest” and 6 “establish[ed] a level of functioning greater than that alleged.”233 While a claimant’s daily activities may provide a specific and legitimate basis for a finding of 7 inconsistency with her disabling conditions, see Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 9 2012); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1991), the Ninth Circuit has “repeatedly 10 warned that ALJs must be especially cautious in concluding that daily activities are inconsistent 11 United States District Court Northern District of California 8 with testimony about pain,” and thus with eligibility for disability benefits. Garrison, 759 F.3d at 12 1016. In Garrison, the Court recognized that disability claimants should not be penalized for 13 attempting to lead normal lives in the face of their limitations, finding that “only if [her] level of 14 activity were inconsistent with [a claimant’s] claimed limitations would these activities have any 15 bearing on her credibility.” Id. (alterations in original) (internal quotations omitted); see also 16 Smolen, 80 F.3d at 1284 n.7 (“The Social Security Act does not require that claimants be utterly 17 incapacitated to be eligible for benefits, and many home activities may not be easily transferable to 18 a work environment where it might be impossible to rest periodically or take medication.”); Fair 19 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily transferable 20 to what may be the more grueling environment of the workplace, where it might be impossible to 21 periodically rest or take medication.”). Here, the ALJ failed to engage in the necessary specific analysis of any inconsistencies 22 23 between the severity of Ms. Ramirez’s reported limitations and her daily activities to enable 24 appropriate review. In particular, the ALJ failed to discuss how Ms. Ramirez’s alleged bladder and 25 fecal incontinency were inconsistent with her reported daily activities.234 26 27 233 AR 33–36. 28 234 AR 34–37. ORDER — No. 15-cv-02988-LB 31 The ALJ also gave “little weight” to evidence from PA Marcus and Ms. Ramirez’s other non- 1 2 physician treatment providers, who were not “acceptable medical sources.”235 “Only physicians 3 and certain other qualified specialists are considered ‘[a]cceptable medical sources.’” Ghanim v. 4 Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (alteration in original) (citing Molina, 674 F.3d at 5 1111); see also 20 C.F.R. § 404.1513(a). Nurse practitioners, physicians’ assistants, and therapists 6 are considered “other sources.” See 20 C.F.R. § 404.1513(d) (2013);236 Ghanim, 763 F.3d at 1161; 7 Molina, 674 F.3d at 1111. “While their opinions must still be evaluated, 20 C.F.R. § 404.1527(c), 8 the ALJ may discount testimony from these ‘other sources’ if the ALJ gives reasons germane to 9 each witness for doing so.” Ghanim, 763 F.3d at 1161 (internal quotations omitted); see also Molina, 674 F.3d at 1111–12; 20 C.F.R. §§ 404.1513, 416.913; SSR 06-03p, available at 2006 11 United States District Court Northern District of California 10 WL 2329939 (“[A]n opinion from a medical source who is not an ‘acceptable medical source’ 12 may outweigh the opinion of an ‘acceptable medical source.”). 13 Here, the ALJ discounted those opinions because (i) they were not “acceptable medical 14 sources” and (ii) their opinions were inconsistent with the claimant’s daily functioning.”237 The 15 first reason, while accurate, is circular and not a “germane” reason to discount such evidence. See 16 Haagenson v. Colvin, 656 F. App’x. 800, 802 (9th Cir. 2016) (holding that the ALJ failed to 17 provide a germane reason for rejecting “other source” opinion evidence when “[t]he only reason 18 that the ALJ offered for rejecting their opinions is that they are not ‘acceptable medical sources’ 19 within the meaning of the federal regulation . . . [because] the regulation already presumes that 20 nurses and counselors are non-acceptable medical sources, yet still requires the ALJ to consider 21 them as ‘other sources’”). The ALJ’s second reason for rejecting the “other source” opinions also 22 is insufficient. While inconsistency with objective evidence is a germane reason to reject “other 23 source” evidence, see Molina, 674 F.3d at 1111–12, here, the ALJ failed to cite or discuss any 24 25 235 26 27 28 AR 36. 236 The Social Security Administration promulgated a new § 404.1513, effective as of March 27, 2017. The previous version, effective September 3, 2013, to March 26, 2017, was in effect as of the date of the ALJ’s hearing. 237 AR 36–37. ORDER — No. 15-cv-02988-LB 32 1 specific, supported, and germane inconsistencies between those opinions and Ms. Ramirez’s 2 “daily functioning.”238 See Ghanim, 763 F.3d at 1161; see also Bruce v. Astrue, 557 F.3d 1113, 3 1115 (9th Cir. 2009) (the reasons for rejecting other source witness testimony must be “germane” 4 and “must be specific”). The ALJ also gave “some slight weight” to his own observations of Ms. Ramirez’s 5 interactions, mobility, and “apparent lack of discomfort” at the ALJ hearing.239 The Ninth Circuit 7 has repeatedly rejected the ALJ’s denial of benefits “based on the ALJ’s observation of [the 8 claimant], when [the claimant’s] statements . . . are supported by objective evidence.” Perminter v. 9 Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (the court “condemned” “[t]he ALJ’s reliance on his 10 personal observations . . . at the hearing,” characterizing it “as ‘sit and squirm’ jurisprudence”) 11 United States District Court Northern District of California 6 (quoting Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982)). Here, the ALJ’s observations of Ms. Ramirez’s “lack of discomfort” during the approximately 12 13 40-minute long hearing240 is not “clear and convincing” evidence supporting the ALJ’s adverse 14 credibility finding, particularly where her testimony and the record suggests that her symptoms 15 were intermittent.241 See Perminter, 765 F.2d at 872; Garrison, 759 F.3d at 1014–15; see also 16 Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (even when claimant alleges constant 17 pain, “[t]he fact that a claimant does not exhibit physical manifestations of prolonged pain at the 18 hearing provides little, if any, support for the ALJ’s ultimate conclusion that the claimant is not 19 disabled or that his allegations of constant pain are not credible.”). The ALJ also noted that Ms. Ramirez was noncompliant with her treatment protocols because 20 21 she was a “no show” at a March 4, 2013 appointment.242 While an ALJ can properly consider an 22 inadequately explained failure to seek treatment as an inconsistency with alleged severity of 23 impairments, see Molina, 674 F.3d at 1113, without more information, the court is unable to 24 238 See Id. 239 AR 36. 240 AR 36; see also AR 100, 120 (noting the starting and ending times of the ALJ’s hearing). 27 241 See, e.g., AR 108. 28 242 AR 35; see also AR 523 (referencing a “no show” on “3/4/13”). 25 26 ORDER — No. 15-cv-02988-LB 33 1 conclude that her failure to show up at one appointment constitutes “substantial evidence” of an 2 inadequately explained failure to seek treatment. See id. The ALJ also noted that Ms. Ramirez has 3 been prescribed medication and is receiving ongoing counseling for her depression symptoms, and 4 these treatments “were successful in treating her symptoms.”243 Again, while evidence of a 5 claimant’s favorable response to minimal and conservative treatment can evidence undermining 6 the alleged severity of a claimant’s condition, see Tommasetti, 533 F.3d at 1039–40, the ALJ did 7 not provide sufficient analysis to determine whether it is legitimate reason to discredit the treating 8 physician’s opinion supported by substantial evidence. See Garrison, 759 F.3d at 1012. 9 3.2 Ms. Ramirez’s Testimony 11 United States District Court Northern District of California 10 In assessing a claimant’s credibility, an ALJ must make two determinations. Garrison, 759 12 F.3d at 1014. “‘First, the ALJ must determine whether the claimant has presented objective 13 medical evidence of an underlying impairment which could reasonably be expected to produce the 14 pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 15 (9th Cir. 2007) (internal quotations omitted)). Second, if the claimant has produced that evidence, 16 and “there is no evidence of malingering,” the ALJ must provide “specific, clear and convincing 17 reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms. 18 Id. at 1014–15 (quoting Smolen, 80 F.3d at 1281). In order to have meaningful appellate review, 19 the ALJ must explain its reasoning and “specifically identify the testimony [from a claimant] she 20 or he finds not to be credible and . . . explain what evidence undermines the testimony.” Treichler 21 v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102, 1103 (9th Cir. 2014) (“Credibility findings must 22 have support in the record, and hackneyed language seen universally in ALJ decisions adds 23 nothing.”) (internal quotations omitted). “That means ‘[g]eneral findings are insufficient.’” Id. at 24 1102 (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 25 (“[T]he ALJ must make a credibility determination with findings sufficiently specific to permit the 26 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.”) (citing Bunnell 27 28 243 AR 35. ORDER — No. 15-cv-02988-LB 34 1 v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). Moreover, the court will “review 2 only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ 3 on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010. Here, the ALJ first found that Ms. Ramirez’s “medically determinable impairments could 4 5 reasonably be expected to cause the alleged symptoms”244 and did not find that she was 6 malingering.245 The ALJ, however, failed to identify those specific portions of Ms. Ramirez’s 7 testimony that he found “not fully credible” and explain why they were not credible with “specific, 8 clear and convincing reasons.” Id. at 1014–15. This was an error. See id.; Holohan, 246 F.3d at 9 1208; see also 42 U.S.C. § 405(b)(1) (noting the ALJ’s responsibility to provide “a discussion of 10 the evidence”). The court has “discretion to remand a case either for additional evidence and findings or for an United States District Court Northern District of California 11 12 award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen, 13 80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether 14 to remand for further proceedings or simply to award benefits is within the discretion of [the] 15 court.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). 16 In deciding whether to remand a social security case for further proceedings or for an 17 immediate award of benefits, the Ninth Circuit has promulgated the “credit-as-true” rule. See 18 Garrison, 759 F.3d at 1019–23; Treichler, 775 F.3d at 1100–02; Benecke v. Barnhart, 379 F.3d 19 587, 595 (9th Cir. 2004); see also Connett, 340 F.3d at 876; Hammock v. Bowen, 879 F.2d 498 20 (9th Cir. 1989). The credit-as-true rule applies to both “medical opinion evidence” and to 21 “claimant testimony.” Garrison, 759 F.3d at 1020. Under the credit-as-true rule, a reviewing court 22 may credit evidence that was rejected during the administrative process and remand for an 23 immediate award of benefits if: (1) the ALJ failed to provide “legally sufficient reasons” for 24 rejecting the evidence; (2) “the record has been fully developed and further administrative 25 proceedings would serve no useful purpose”; and (3) “if the improperly discredited evidence were 26 27 244 AR 34. 28 245 See AR 29–38. ORDER — No. 15-cv-02988-LB 35 1 credited as true, the ALJ would be required to find the claimant disabled on remand.” Id. (citing 2 Ryan, 528 F.3d at 1202; Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 640; Benecke, 379 F.3d 3 at 595; Smolen, 80 F.3d at 1292). If these three conditions are met, the court may remand for an 4 award of benefits unless “an evaluation of the record as a whole creates serious doubt that a 5 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021; see also McCartey, 298 F.3d at 1076 6 (noting court’s “discretion”). 7 Generally, “‘[i]f additional proceedings can remedy defects in the original administrative 8 proceeding, a social security case should be remanded.’” Garrison, 759 F.3d at 1019 (quoting 9 Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original); Treichler, 775 F.3d at 1099, 1106 (“a reviewing court is not required to credit claimants’ allegations regarding the 11 United States District Court Northern District of California 10 extent of their impairments as true merely because the ALJ made a legal error in discrediting their 12 testimony;” if “the reviewing court simply cannot evaluate the challenged agency action on the 13 basis of the record before it, the proper course, except in rare circumstances, is to remand to the 14 agency for additional investigation or explanation.”) (citations omitted); see also Dominguez v. 15 Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further 16 administrative proceedings would serve no useful purpose, it may not remand with a direction to 17 provide benefits.”); McCartey, 298 F.3d at 1076 (remand for award of benefits is discretionary); 18 McAllister, 888 F.2d at 603 (remand for award of benefits is discretionary); Connett, 340 F.3d at 19 876 (finding that a reviewing court has “some flexibility” in deciding whether to remand). 20 Here, the court finds the three conditions are satisfied and remands with instructions for an 21 award of benefits. First, as discussed above, the ALJ failed to provide “legally sufficient reasons” 22 for finding Ms. Ramirez’s testimony about her symptoms “not entirely credible” and for rejecting 23 the medical opinion evidence of her treating physicians. 24 Second, there are “no outstanding issues that must be resolved before a determination of 25 disability can be made.” Garrison, 759 F.3d at 1019–20, n.26; see also Treichler, 775 F.3d at 26 1108, 1110 (Tashima J., dissenting) (noting the limited situations where the Ninth Circuit has 27 determined that there were outstanding issues to be considered or resolved by the ALJ warranting 28 a remand without instructions to award benefits). As discussed below, because the vocational ORDER — No. 15-cv-02988-LB 36 1 expert confirmed in his answer to the hypothetical that no alternative work would be available for 2 someone with Ms. Ramirez’s limitations, we need not remand for consideration of this fifth 3 element of the five-step analysis. Third, it is clear from the record that the ALJ would be required to find the claimant disabled 4 were her testimony and the rejected medical opinion evidence of Drs. Tabbaa and Fernandez 6 credited as true. See Garrison, 759 F.3d at 1020–22. During the ALJ’s hearing, a hypothetical was 7 given to the vocational expert (“VE”) which closely tracked Ms. Ramirez’s limitations as noted by 8 Dr. Tabbaa in the questionnaire.246 When asked whether a person with those limitations could 9 perform Ms. Ramirez’s past work, the VE testified that such a person could not perform that work, 10 and that no other work would be available.247 See also Treichler, 775 F.3d at 1096 (observing that 11 United States District Court Northern District of California 5 the vocational expert in that case testified that an employer would not tolerate a situation where 12 “twice a month at randomly and unpredictably times there’s a loss of bowel control despite best 13 efforts,” and that there would not be any other available work for such a person). 14 CONCLUSION 15 Ms. Ramirez’s motion for summary judgment is granted, and the Commissioner’s cross- 16 17 motion for summary judgment is denied. The court remands the case for the calculation and award 18 of benefits. 19 IT IS SO ORDERED. 20 Dated: March 31, 2017 21 ______________________________________ LAUREL BEELER United States Magistrate Judge 22 23 24 25 26 27 246 AR 118–19. 28 247 Id. ORDER — No. 15-cv-02988-LB 37

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