Schuyler v. Berryhill

Filing 21

ORDER Granting Plaintiff's Appeal and Reversing The Administrative Law Judge's October 15, 2015 Decision."On the basis of the foregoing, Plaintiff's appeal of the Administrative Law Judges October 15, 2015 Decision is HEREBY GRANTED insofar as the ALJ's Decision is REVERSED and the case is REMANDED to the ALJ for the determination and payment of benefits.There being no remaining issues in this case, the Court DIRECTS the Clerk's Office to enter judgment and close the case immediately." Signed by JUDGE LESLIE E. KOBAYASHI on 9/21/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SEAN PHILIP SCHUYLER,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social
)
Security,
)
)
)
Defendant.
_____________________________ )

CIVIL 17-00277 LEK-KSC

ORDER GRANTING PLAINTIFF’S APPEAL AND REVERSING
THE ADMINISTRATIVE LAW JUDGE’S OCTOBER 15, 2015 DECISION
Before the Court is Plaintiff Sean Philip Schuyler’s
(“Plaintiff”) Complaint for Review of Supplemental Security
Income Determination (“Complaint”), filed on June 11, 2017, in
which he appeals from Administrative Law Judge Jeffrey Hatfield’s
(“ALJ”) October 15, 2015 Decision (“Appeal”).

The ALJ issued the

Decision after conducting a hearing on July 8, 2015.
[Administrative Record (“AR”) at 15.1]

The ALJ ultimately

concluded Plaintiff was not disabled, for purposes of the Social
Security Act, since February 26, 2013.

[Decision, AR at 31.]

On November 6, 2017, Plaintiff filed his Opening Brief.
[Dkt. no. 14.]

Defendant Nancy A. Berryhill, Acting Commissioner

of Social Security (“the Commissioner”), filed her Answering
Brief on January 8, 2018, and Plaintiff filed his Reply Brief on
1

The Decision, including the Notice of Decision –
Unfavorable and the List of Exhibits, is AR pages 12-36.

February 5, 2018.

[Dkt. nos. 15, 18.]

This Court heard oral

argument on April 9, 2018 and issued an entering order ruling on
Plaintiff’s Appeal on June 29, 2018.
Order supersedes that entering order.

[Dkt. no. 20.]

The instant

Plaintiff’s Appeal is

granted, and the ALJ’s Decision is reversed.

The case is

remanded to the ALJ for the payment of benefits.
BACKGROUND
On January 9, 2013, Plaintiff filed a Title II
application for disability insurance benefits, but the
application was denied because he did not have a sufficient
earnings record to be eligible for Title II benefits.

On

February 26, 2013, Plaintiff protectively filed an application
for supplemental security income (“SSI”), alleging he was
disabled as of November 4, 2011.

Plaintiff later amended the

alleged onset date to November 3, 2009.

Plaintiff’s claim was

denied, initially and on reconsideration.

On June 17, 2014,

Plaintiff filed a written request for a hearing.

At the July 8,

2015 hearing, Plaintiff was represented by his current counsel.
Plaintiff, Michael Wayne Schuyler – Plaintiff’s father, and
Alice L. Thomas – an impartial vocational expert (“VE”),
testified at the hearing.

Tracy R. Gordy, M.D., an impartial

medical expert, was scheduled to testify, but did not do so.
Dr. Gordy’s responses to post-hearing interrogatories were
included in the record.

[Decision, AR at 15.]

2

In the instant Appeal, Plaintiff does not dispute the
ALJ’s findings in step one through three of the five-step
sequential analysis to determine whether a claimant is disabled.
Thus, the ALJ’s findings as to those steps are only briefly
discussed here.
At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since February 26, 2013.

For two

years prior to the hearing, Plaintiff helped at a tattoo shop on
a regular basis, in what the shop owner – Peggy Sucher –
described as “a volunteer position.”

[Decision, AR at 17.]

Plaintiff received tips of approximately $100.00-$150.00 per
month and apparently received some free tattoos during the
two-year period.

The ALJ found Plaintiff’s time at the tattoo

shop did not constitute substantial gainful employment.

[Id.]

At step two, the ALJ found Plaintiff had a mental
impairment that was considered severe – schizophrenia.

The ALJ

also found Plaintiff did not have any severe physical
impairments.

[Id. at 18.]

At step three, the ALJ found Plaintiff’s impairment did
not meet or medically equal the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
[Id.]
At step four, the ALJ found that Plaintiff had the
residual functional capacity (“RFC”)

3

to perform a full range of work at all exertional
levels but with the following nonexertional
limitations: he would be off-task 5% of the
workday[2] due to psychological symptomatology; he
is limited to occasional changes in work setting;
he cannot perform production rate pace work (that
is, no traditional type assembly line work where
another employee’s production would be dependent
on the claimant’s immediate prior performance); he
is limited to occasional interaction with the
public, but could tolerate frequent interaction
with supervisors and coworkers; and he would need
to avoid even moderate exposure to hazardous
machinery and unprotected heights.
[Id. at 20 (emphasis omitted).]
In considering Plaintiff’s symptoms to determine
Plaintiff’s RFC, the ALJ looked at: whether Plaintiff’s mental
impairment could reasonably be expected to produce his symptoms;
and the extent to which Plaintiff’s symptoms limited his
functioning.

[Id. at 21.]

The ALJ noted Plaintiff testified he

could not work because: his symptoms included auditory
hallucinations that generally went on for half of his day,
regardless of whether he is having a good day or a bad day; he
needs breaks at least once an hour to regain his composure when
his symptoms increase; he usually did not stay at the tattoo shop
for eight hours in one day; on his bad days (which usually occur
once a week), he does not stay at the tattoo shop for more than
an hour; he is paranoid, dislikes people, and finds it difficult
to get along with others, especially persons in authority;

2

According to Plaintiff, five percent of the workday is the
equivalent of twenty four minutes. [Opening Brief at 2.]
4

medications do not work for him because of their side effects;
and he was becoming increasingly agitated, depressed, and
isolated.

[Id. (citing Exs. 4E, 8E, 11E, 16E).3]

The ALJ found

Plaintiff’s impairments could reasonably be expected to cause his
symptoms, but his “statements concerning the intensity,
persistence and limiting effects of these symptoms [were only]
partly credible.”

[Id. at 21-22.]

The ALJ noted that, at his alleged onset date of
November 3, 2009, Plaintiff was a straight-A student at Sierra
College.

He previously attended the University of California -

Davis (“UC Davis”), but dropped out because of his symptoms.
[Id. at 22.]

From November 3, 2009 to May 25, 2010, Jong Yoon,

M.D., a psychiatrist at UC Davis’s EDAPT Clinic, rated
Plaintiff’s global assessment of functioning (“GAF”) at sixty.4

3

Exhibit 4E is a Function Report – Adult, dated June 5,
2013, prepared by Plaintiff; [AR at 229-36;] Exhibit 8E is a
Disability Report – Appeal, dated March 10, 2014, prepared by
Plaintiff’s father; [AR at 248-53;] Exhibit 11E is a Disability
Report – Appeal, dated June 17, 2014, prepared by Plaintiff’s
counsel; [AR at 258-63;] and Exhibit 16E is an email string
between Plaintiff and another person, who is referred to as
“Rob,” from December 1 to 7, 2014, discussing how to cope with
the symptoms of schizophrenia, [AR at 284-87; Court Transcript
Index at 2].
4

The GAF Scale measures “the clinician’s judgment of the
individual’s overall level of functioning” as to “psychological,
social, and occupational functioning,” but not “impairment in
functioning due to physical (or environmental) limitations.”
American Psychiatric Association, Diagnostic & Statistical Manual
of Mental Disorders (4th ed. Text Revision 2000) (“DSM-IV-TR”) at
32. The GAF Scale ranges from 0-100. A score between 51-60
(continued...)
5

Dr. Yoon’s diagnosis of Plaintiff’s auditory hallucinations and
fixed delusions supported a diagnosis on the schizophrenia
spectrum, “‘warrant[ing] more aggressive use of neuroleptic.’”
[Id. (quoting Ex. 6F).5]

Dr. Yoon’s assessment was consistent

until January 4, 2011, when he noted Plaintiff “was responding
well to a higher dose of Abilify with ‘fairly good control of
psychosis.’”

[Id. (quoting Ex. 6F).]

On April 5, 2011, Dr. Yoon

noted Plaintiff’s psychosis was “‘stable,’” and his auditory
hallucinations and paranoia were “‘recurrent . . . but at low
levels and with minimal effect on function.’”
Ex. 6F).]

[Id. (quoting

Plaintiff complained of “‘free floating anxiety which

[wa]s not related to any specific thought or triggers’” and
frequent “‘depress[ion] for no apparent reason,’” but, according
to Plaintiff, he was still going to class and getting A’s.
(quoting Ex. 6F).]

[Id.

Dr. Yoon last saw Plaintiff on July 12, 2011.

He noted Plaintiff’s psychosis had recently gotten worse because

4

(...continued)
represents “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).” Id. at 34
(emphases omitted). However, the GAF scale has been replaced by
another global measure of disability. See American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders
(5th ed. 2013) (“DSM-V”) at 16.
5

Exhibit 6F is a collection of Progress Notes, dated
November 3, 2009 to July 12, 2011, from the EDAPT Clinic. [AR at
387-431.] The Decision does not cite any specific pages of
Exhibit 6F.
6

of breaking up with his girlfriend and attending his aunt’s
funeral, but “‘this worsening [wa]s remitting on its own.’”

[Id.

(quoting Ex. 6F).]
Plaintiff moved to Hawai`i and has been under the care
of psychiatrist Ethan Pien, M.D., since September 2, 2011.

When

Dr. Pien first saw Plaintiff, Dr. Pien considered him “stable on
Abilify, without side effects.”

[Id. (quoting Ex. 1F/11).6]

Plaintiff had auditory hallucinations two to three times a day,
but said they “were not bothersome and no longer constant.”
(quoting Ex. 1F/11).]

[Id.

He was anxious around law enforcement, and

he occasionally took Propanolol for anxiety, primarily his
anxiety around law enforcement and social anxiety.
Ex. 1F/11).]

[Id. (citing

In spite of these symptoms, which Dr. Pien

described as “‘residual,’” Plaintiff reported “‘feel[ing] highly
functional,’” looking for a job in retail, and hoping to go back
to school.

[Id. (quoting Ex. 1F/11).]

Plaintiff’s GAF at sixty two.7

Dr. Pien rated

[Id. (quoting Ex. 1F/11).]

Dr. Pien’s assessments from October 10, 2011 through early 2012
6

Exhibit 1F is a collection of Dr. Pien’s Office Treatment
Records: Psychotherapy, dated September 2, 2011 to March 15,
2013. [AR at 349-60.] Many of the ALJ’s citations to Exhibit 1F
do not include a specific page number.
7

A GAF score between 61-70 represents “[s]ome mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal
relationships.” DSM-IV-TR at 34 (emphases omitted).
7

remained largely the same.

Plaintiff was looking for work, and

his anxiety and paranoia were better than when he was living in
California.

[Id. at 22-23 (citing Ex. 1F).]

On December 16,

2011, Dr. Pien noted Plaintiff said he was hearing voices twice a
day, and the voices were “‘mild.’”

[Id. at 23 (citing Ex. 1F).]

On February 16, 2012, Plaintiff told Dr. Pien he was “doing
‘better and better’” and planning to go to community college,
and, on April 16, 2012, Dr. Pien noted Plaintiff was doing well.
[Id. (citing Ex. 1F).]

At both visits, Dr. Pien noted Plaintiff

“did not seem to be responding to internal stimuli,” and Dr. Pien
continued to rate Plaintiff at a GAF of sixty two.

[Id. (citing

Ex. 1F).]
Plaintiff told Dr. Pien he stopped taking his
psychotropic medications in February 2012 because he believed
they hurt more than they helped, and he “‘want[ed] a chance to be
himself.’”

[Id. (citing Ex. 1F/4, 3F/2).8]

Plaintiff reported

losing weight, “becom[ing] much sharper cognitively, [and having]
better memory, energy, motivation and enjoyment.”
Ex. 1F).]

[Id. (citing

Plaintiff also reported increased delusions, but

stated he was learning to cope with his symptoms without
medications.

He did not appear to be responding to internal

8

Exhibit 3F is the Treating Source Statement: Assessment of
Claimant, dated October 2, 2013, from Antoine Cazin, M.D. [AR at
372-77.]
8

stimuli, and Dr. Pien rated Plaintiff at a GAF of fifty.9
(citing Ex. 1F).]

[Id.

At both his November 9, 2012 session and his

December 7, 2012 session with Dr. Pien, Plaintiff exhibited
“circumstantial thought processes.”

[Id. (citing Ex. 1F).]

At

the December session, Plaintiff stated he was planning to look
for a job the following month.

[Id. (citing Ex. 1F).]

On January 15, 2013, Plaintiff told Dr. Pien he applied
for approximately five part-time jobs.

Dr. Pien noted

Plaintiff’s “thought process was linear and goal directed for the
most, a bit tangential at times, and noted no abnormal/psychotic
thoughts.”

[Id. (citing Ex. 1F).]

application on February 26, 2013.

Plaintiff filed his SSI
By his March 15, 2013 session,

Plaintiff had not secured employment but planned to resume his
job search soon.

Dr. Pien still rated Plaintiff’s GAF at fifty,

but, according to Plaintiff, his schizophrenia symptoms had
decreased, and he was “‘feeling more health [sic] in body and
mind, less anxious, more confident about being able to hold a
job.’”

[Id. (citing Ex. 1F).]
On July 2, 2013, Plaintiff underwent a consultive

examination by William Marks, Ph.D.

Plaintiff told Dr. Marks he

was having daily auditory hallucinations and some visual

9

A score between 41-50 represents “[s]erious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).”
DSM-IV-TR at 34 (emphases omitted).
9

hallucinations, although the ALJ noted that, during testimony,
Plaintiff denied having visual hallucinations.

According to

Plaintiff, he had difficulty sleeping, was constantly pacing or
moving, and would pull his hair and hit himself.

At the time of

Dr. Marks’s evaluation, Plaintiff still was not taking
psychotropic medication.

[Id. (citing Ex. 2F).10]

Plaintiff

told Dr. Marks he: often visited friends and neighbors;
occasionally went out with family and friends; enjoyed walking,
soccer, working out twice a week, and listening to music; and
occasionally participated in a support group.
Ex. 2F).]

[Id. at 26 (citing

Based on Plaintiff’s performance during the

evaluation, Dr. Marks found Plaintiff: was able to understand,
remember, and carry out simple instructions; had “‘little or no
problems with attention and/or concentration’”; only occasionally
needed instructions repeated; was not “unusually physically
active, distractible, or impulsive”; did not exhibit any
“functional mathematical impairment”; and had an overall
intelligence quotient score of 102 (in the 55th percentile),
although his scores varied widely – as high as the 82nd
percentile on the verbal comprehensive index and as low as the
18th percentile on the speed processing index.
(quoting & citing Ex. 2F).]

[Id. at 23-24

Dr. Marks noted Plaintiff’s

10

Exhibit 2F is Dr. Marks’s psychological evaluation of
Plaintiff. [AR at 361-71.]
10

responses during the examination suggested Plaintiff may have
poor interpersonal skills because he was suspicious and
distrustful of others and had difficulty with authority, but
Dr. Marks found Plaintiff could engage in minimal contact with
others.

Dr. Marks also found Plaintiff was able to speak clearly

and intelligibly and was able to present relevant thoughts in a
simple manner.

[Id. at 26 (citing Ex. 2F).]

Dr. Marks opined

Plaintiff “appeared able to adapt to a low demand entry-level
job, though consistency might be an issue,” and Plaintiff “would
benefit from working with others who understand his difficulties,
offer minimal contact and would be willing to work with him in
resolving his concerns.”

[Id. at 24 (citing Ex. 2F).]

As to Dr. Marks’s suggestion that Plaintiff should have
“a supportive work setting,” the ALJ found “the evidence as a
whole is not entirely persuasive in this regard,” and Plaintiff’s
limitations could be addressed by reducing stressors, including
minimal public contact, only occasional setting changes, and no
production work.

[Id. at 26.]

The ALJ disagreed with

Dr. Marks’s opinion that Plaintiff may “have difficulties with
consistent performance in job performance, interaction and
attendance,” because this was not apparent during Plaintiff’s
examination with Dr. Marks, and was contrary to the ALJ’s view of
medical records, which showed Plaintiff’s improvement.
(quoting Ex. 2F).]

11

[Id.

The reviewing psychological consultants from the state
agency (“State Psychological Consultants”) also found Plaintiff
could: understand and remember both simple instructions and
detailed instructions; carry out work instructions; “maintain
adequate attendance and sustain an ordinary routine without
special supervision”; adapt to routine changes at work; interact
with co-workers and supervisors, if “in a work setting that has
limited demands for social interaction.”
Ex. 3A).11]

[Id. at 24 (citing

In a response to written interrogatories, Dr. Gordy

opined Plaintiff could “do ‘simple repetitive work, some detailed
work and probably some complex’ work, can interact with
coworkers, and can interact with supervisors to a limited
extent.”

[Id. at 24-25 (citing Ex. 11F).12]

Dr. Gordy

acknowledged Plaintiff’s prior difficulties with authority
figures, but noted Plaintiff had satisfactory interactions with
his therapists.

[Id. at 25 (citing Ex. 11F).]

Plaintiff argued

Dr. Gordy failed to address all relevant aspects of Dr. Marks’s
assessment and may not have considered the statements by the

11

Exhibit 3A is Plaintiff’s Disability Determination
Explanation on reconsideration (“Reconsideration DDE”), dated
May 1, 2014. [AR at 92-105.] Part of the Reconsideration DDE
was prepared by N. Shibuya, M.D., and part was prepared by
D. Lam, Ph.D. [Exh. 3A/7 (AR at 98); Exh. 3A/9 (AR at 100).]
12

Exhibit 11F is Dr. Gordy’s response to medical
interrogatories, dated August 7, 2015. [AR at 463-72.]
12

owner of the tattoo shop about the nature of the time Plaintiff
spent there, but the ALJ rejected these arguments.

[Id.]

The ALJ noted Dr. Marks’s opinions were consistent with
Dr. Gordy’s, as well as those of the State Psychological
Consultants.

All of them found Plaintiff had “generally moderate

restrictions in social function and/or concentration, persistence
and pace.”

[Id. at 24.]

The ALJ accorded “some weight” to these

assessments because the findings of moderate restrictions in
functioning were “supported by the record including findings from
the mental status examinations, the psychological test results
and the evidence of [Plaintiff’s] wide range of activities of
daily living.”

[Id. (citing SSR 96-2p).]

The ALJ also noted that, although Dr. Pien assessed
Plaintiff’s GAF at fifty, Dr. Pien’s records indicated Plaintiff
showed consistent improvement, without medication.

On

September 27, 2013, Dr. Pien noted that, since May 2013,
Plaintiff had been spending his days at the front desk of the
tattoo shop, and was “‘[d]oing well there.’”

[Id. at 25

(alteration in Decision) (quoting Ex. 4F).13]

On December 12,

2013, Plaintiff told Dr. Pien he still heard voices, but was able
to tune them out, and he felt comfortable at the tattoo shop.
Dr. Pien noted Plaintiff’s “social and occupational functioning

13

Exhibit 4F is Dr. Pien’s Office Treatment Records:
Psychotherapy, dated from September 27, 2013 to January 23, 2014.
[AR at 378-81.]
13

[was] ‘gradually improving.’”

[Id. (quoting Ex. 4F).]

On

January 23, 2014, Dr. Pien noted Plaintiff was still able to
block out his auditory hallucinations, “was functioning well at
his job, and hoping to start ballet, soccer and swimming.”
(citing Ex. 4F).14]

[Id.

Further, Plaintiff “had linear and goal

directed thought processes, ‘normal’ associations, and moderate
judgment and insight,” with no detected abnormal/psychotic
thoughts.

[Decision, AR at 26 (quoting Ex. 4F).]

On April 17

and October 27, 2014, Dr. Pien also noted Plaintiff: had no
detected abnormal/psychotic thoughts; said it was easier to
ignore the auditory hallucinations; and was “‘gradually
improving’” in his “‘social and occupational functioning.’”

[Id.

(quoting Ex. 7F).15]
The ALJ gave greater weight to Dr. Pien’s findings that
Plaintiff was stable and improving, as shown by his activities of
daily living and his testimony before the ALJ.

[Id. at 27.]

The ALJ emphasized that, as of January 29, 2015 and
February 26, 2015, Plaintiff was spending approximately thirty
two hours per week volunteering at the tattoo shop.

At the

February 26 session, Plaintiff reported he was “learning a lot
skills and knowledge” at the tattoo shop, and it was becoming

14

Dr. Pien stated Plaintiff was “[f]unctioning well full
time at job.” [Exh. 4F/1 (AR at 378).]
15

Exhibit 7F is Dr. Pien’s Progress Notes, dated from
April 17, 2014 to May 21, 2015. [AR at 432-38.]
14

easier to cope with his symptoms, and Dr. Pien noted Plaintiff
continued to improve while off of his medication.
Exs. 7F/5, 11F).]

[Id. (citing

At the February 26 session, as well as during

sessions on March 26, April 23, and May 21, 2015, Dr. Pien noted
Plaintiff was stable and discussed his job options.

At the

May 21 session, Dr. Pien and Plaintiff discussed Plaintiff’s
“growing confidence.”

[Id. (citing Ex. 11F); Exh. 7F/1 (AR at

432).]
The ALJ considered statements by the owner of the
tattoo shop and Plaintiff’s father that Plaintiff: does not have
set hours or duties at the shop; decides what time to come in and
what to do; and takes a break of approximately ten minutes once
or twice an hour “to compose himself or do his own thing.”
[Decision, AR at 27 (citing Ex. 19E).16]

The ALJ found these

statements had limited persuasive value in light of the other
evidence in the record.

As to the issue of Plaintiff’s breaks,

the ALJ stated there was no indication Plaintiff needed such a
break during Dr. Marks’s examination, and Dr. Pien never stated
Plaintiff was easily distracted, restless, or otherwise displayed
“psychomotor agitation.”

[Id.]

On June 27, 2015, Piyush Tiwari, M.D., evaluated
Plaintiff and “assessed marked limitations in categories across

16

Exhibit 19E is a letter, dated June 12, 2015, to the
Social Security Administration from Peggy Sucher, the owner and
operator of the Tattoo Hawaii Studio. [AR at 295.]
15

multiple areas of concentration, persistence and pace and in
social function, and with regard to episodes of deterioration.”
[Id. (some citations omitted) (citing Ex. 9F).17]
also rated Plaintiff’s GAF at forty.18

[Id.]

Dr. Tiwari

The ALJ only gave

Dr. Tiwari’s opinions limited weight because Dr. Tiwari’s
“assessment consisted of checking boxes on a three-page form,
. . . he did not cite detailed clinical findings, or provide any
rationale or discussion to support his assessment,” and was “not
consistent with the other mental health evidence of record
including the clinical findings and psychological test results.”
[Id. at 27-28 (some citations omitted) (citing SSR 96-2p).]
The ALJ noted Alan Koike, M.D., opined Plaintiff’s
schizophrenia rendered him totally disabled and unable to work.
Dr. Koike noted Plaintiff had difficulty “initiating tasks,
maintaining focus and simple problem solving, such as with mowing
the lawn, raking leaves or trimming hedges,” and was “easily
overwhelmed, . . . often leaving a social situation to [be] by

17

Exhibit 9F is Dr. Tiwari’s Mental Health Questionnaire.
[AR at 449-51.]
18

A score between 31-40 represents “[s]ome impairment in
reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) or major impairment in several
areas, such as work or school, family relations, judgment,
thinking, or mood (e.g., depressed man avoids friends, neglects
family, and is unable to work . . . ).” DSM-IV-TR at 34
(emphases omitted).
16

himself.”

[Id. at 28.19]

The ALJ discounted Dr. Koike’s opinion

because: Dr. Koike is Plaintiff’s uncle; Dr. Koike based his
opinion on personal observations, having never performed a formal
psychiatric evaluation of Plaintiff; and a psychiatrist’s
statement that a claimant is disabled or unable to work does not
necessarily mean the claimant will be found disabled under the
Social Security Act.

[Id. (citing SSR 96-2p).]

The ALJ found Dr. Pien’s records and Plaintiff’s
volunteer work at the tattoo shop for the last two years before
the hearing showed Plaintiff was capable of “frequent interaction
with those with whom he has some familiarity, like coworkers and
supervisors” and “occasional interaction with the general
public.”

[Id.]

Plaintiff’s father testified Plaintiff was “a

‘high functioning’ schizophrenic.”

[Id.]

While the owner of the

tattoo shop accommodated Plaintiff’s condition by allowing him a
flexible schedule and extending leniency, and although Plaintiff
still had symptoms requiring ongoing monitoring, the ALJ found
“there is well supported mental health opinion showing the
claimant is fairly capable despite his symptoms.”

[Id.]

Plaintiff had family support, but did “a lot for himself in terms

19

Dr. Koike’s one-page letter addressed “To Whom It May
Concern,” with a nine-page Curriculum Vitae, is Exhibit 8F. [AR
at 432-38.] He is a psychiatrist and a Clinical Professor in the
University of California, Davis School of Medicine’s Department
of Psychiatry and Behavioral Sciences, as well as the medical
director of the Adult Psychiatric Support Services Clinic in
Sacramento. [Exh. 8F/1 (AR at 439).]
17

of carrying out his activities of daily living including living
alone, keeping up his condo and getting to his appointments,” and
the record showed Plaintiff was “stable for some time and
improving.”

[Id.]

The ALJ considered Plaintiff’s subjective statements
and testimony about his auditory hallucinations and the evidence
regarding Plaintiff’s paranoia about authority – which was
focused on law enforcement - and found they did not require
significant limitations on interactions with supervisors and
co-workers.

[Id. at 28-29.]

The ALJ also considered the

evidence that Plaintiff required breaks to deal with his
symptoms, but found:
there is also no evidence that he is unable to
complete the tasks that he engages in at the
tattoo shop where he has a regular presence, or
carry out the usual activities of daily living.
The record as a whole is not persuasive in
demonstrating the claimant would require more than
the usual breaks typically allotted during an
8-hour workday. The claimant was earning A’s in
college when he was being treated the [sic] EDAPT
clinic, and after moving to Hawaii, he has been
managing most of his own activities of daily
living, and reports his symptoms are better.
According to Dr. Marks’s report, the claimant,
without assistance, “can take care of most daily
activities including personal grooming, cooking,
housework and laundry, shopping, managing his own
money, travel around the city and take care of his
medical needs.” [Ex. 2F] Testimony by the
claimant and his father also indicate the claimant
continues to take care of his basic activities of
living, like personal hygiene, cleaning his
apartment and is independent in getting from place
to place. In addition, the claimant was able to
complete psychological testing and the
18

consultative mental health evaluation, and there
is no consistent evidence of significant
inattentiveness or lack of focus during the
consultative evaluation or during his treatment
sessions. Dr. Marks noted the claimant only
occasionally needed instructions repeated. The
treatment records also indicate minimal symptoms,
and in recent years, the mental status exams
reveal no detectable hallucinations, and no need
for psychotropic medication.
[Id. at 29.]

Thus, the ALJ found the medical records and other

evidence supported the RFC finding.
The ALJ found Plaintiff had past relevant work as a
cashier II, Dictionary of Occupational Titles (“DOT”)
§ 211.462-010, which is unskilled (SVP 2)20 and involves light
exertion.

The ALJ found that, based on the VE’s testimony and

Plaintiff’s “significant nonexertional restrictions,” Plaintiff
could not return to his past relevant work.

[Id. at 29-30.]

As to step five, on the date of the SSI application,
Plaintiff was “a younger individual age 18-49,” had at least a
high school degree, and was able to communicate in English.21

20

“SVP” refers to “specific vocational preparation.” See
20 C.F.R. § 404.1568(a). SVP is “the amount of lapsed time
required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average
performance in a specific job-worker situation.” U.S. Dep’t of
Labor, Dictionary of Occupational Titles (“DOT”) at App’x C Components of the Definition Trailer (4th ed., rev. 1991). A
level two SVP is “[a]nything beyond short demonstration up to and
including 1 month.” Id.
21

The ALJ noted skills transferability was not an issue
because Plaintiff’s past relevant work was unskilled. [Decision,
AR at 30.]
19

[Id. at 30 (citing 20 CFR 416.963, 416.964).]

In light of these

factors, Plaintiff’s RFC, and the Medical-Vocational Guidelines
(20 C.F.R. Part 404, Subpart P, Appendix 2), the ALJ found
Plaintiff could perform jobs “that exist in significant numbers
in the national economy.”
416.969(a)).]

[Id. (citing 20 CFR 416.969,

The ALJ acknowledged Plaintiff’s nonexertional

limitations eroded the available occupational base, but the VE
testified an individual with Plaintiff’s age, education, work
experience, and RFC could perform the following occupations:
photo machine operator, which involves, per DOT
section 207.265-014, unskilled (SVP 2) light
exertion and is available in numbers of
approximately 25,7000 nationally; cleaner
(housekeeper), which involves, per DOT
323.687-014, unskilled (SVP 2) light exertion and
is available in numbers of approximately 245,900
nationally; and tender for can filling machine,
which involves, per DOT section 529.685-282,
unskilled (SVP 2) light exertion and is available
in numbers of approximately 28,300 nationally.
[Id.]

The ALJ also found the VE’s testimony was consistent with

the DOT.

[Id.]

The ALJ therefore found Plaintiff could return

“to other work that exists in significant numbers in the national
economy,” and, as of the date of the SSI application, Plaintiff
was not disabled under the Social Security Act.

[Id. at 31.]

In the instant Appeal, Plaintiff argues the ALJ erred
in disregarding and/or rejecting his testimony, as well as the
testimony or statements by his parents, Dr. Koike (his uncle),
and Ms. Sucher (the tattoo shop owner) about his need to take

20

breaks throughout the day at the tattoo shop and his need for at
least one day off per week.
STANDARD
I.

Review of Social Security Decisions
The Ninth Circuit conducts a de novo review of a

district court’s order in a social security appeal.

Treichler v.

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Thus, in reviewing the Commissioner’s decision, this Court
applies the same standards the Ninth Circuit applies.
A court will only disturb the Commissioner’s decision
if it is not supported by substantial evidence or if it is based
on legal error.

Id.

“Substantial evidence is more than a mere

scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

2012) (citation and internal quotation marks omitted).

In

reviewing a decision by the Commissioner, a district court must
consider the entire record as a whole.

Id.

Where the inferences

reasonably drawn from the record would support either affirmance
or reversal, the district court may not substitute its judgment
for the ALJ’s.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th

To ensure a court does not substitute its judgment

for the ALJ’s, it must “‘leave it to the ALJ to determine
credibility, resolve conflicts in the testimony, and resolve
21

ambiguities in the record.’”

Brown-Hunter v. Colvin, 806 F.3d

487, 492 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1098).
II.

Five-Step Analysis
The following analysis applies in cases involving

review of the denial of social security disability benefits.
For purposes of the Social Security Act, a
claimant is disabled if the claimant is unable “to
engage in any substantial gainful activity by
reason of any medically determinable physical or
mental impairment which can be expected to result
in death or which has lasted or can be expected to
last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). In order to
determine whether a claimant meets this
definition, the ALJ employs a five-step sequential
evaluation. Parra v. Astrue, 481 F.3d 742, 746
(9th Cir. 2007); 20 C.F.R. §§ 404.1520(a),
416.920(a). In brief, the ALJ considers whether a
claimant is disabled by determining: (1) whether
the claimant is “doing substantial gainful
activity”; (2) whether the claimant has a “severe
medically determinable physical or mental
impairment” or combination of impairments that has
lasted for more than 12 months; (3) whether the
impairment “meets or equals” one of the listings
in the regulations; (4) whether, given the
claimant’s “residual functional capacity,” the
claimant can still do his or her “past relevant
work”; and (5) whether the claimant “can make an
adjustment to other work.” 20 C.F.R.
§§ 404.1520(a), 416.920(a). The claimant bears
the burden of proof at steps one through four.
Parra, 481 F.3d at 746.
Molina, 674 F.3d at 1110.

If the analysis reaches step five, the

burden shifts to the Commissioner to prove the claimant can
perform other work.

Garrison v. Colvin, 759 F.3d 995, 1011 (9th

Cir. 2014).

22

DISCUSSION
I.

Whether Plaintiff is Capable of
Working Five Eight-Hour Days per Week
The dispositive issue in the Appeal is whether the ALJ

erred in disregarding evidence that Plaintiff requires one day
off during the work week due to the effects of his schizophrenia.
No party disputes the ALJ’s findings that this impairment is
severe and that this impairment could reasonably be expected to
cause the symptoms Plaintiff has described.
21.]

[Decision, AR at 18,

Thus, the dispute in this Appeal centers around the ALJ’s

rejection of Plaintiff’s evidence regarding the “intensity,
persistence and limiting effects of these symptoms.”

[Id. at

22.]
Plaintiff testified he has good days and bad days.

He

has bad days at least once a week and, on those days, he either
does not go into the tattoo shop at all or he does not stay a
whole eight-hour day.

[7/8/15 Hrg. Trans., AR at 60.22]

According to Ms. Sucher, Plaintiff “decides when he comes in, and
when he leaves.”

[AR at 295.]

Plaintiff’s father testified that

Plaintiff “does show up three or four days a week to work” at the
tattoo shop.

[7/8/15 Hrg. Trans., AR at 63.]

In a letter to the

ALJ, Plaintiff’s mother, Anna Schuyler, stated:

22

The 7/8/15 Hearing Transcript is AR pages 37-78. AR at
44-61 is Plaintiff’s testimony; AR at 62-70 is the testimony of
Plaintiff’s father; and AR at 70-76 is the VE’s testimony.
23

[Plaintiff] has episodes when he is overtaken by
agitation and unwelcomed thoughts. By the next
day he cannot remember exactly what happened,
saying things like “I think I was psychotic and
spent the day pacing and sweeping floors”. When
experiencing an increase in these symptoms
[Plaintiff] physically isolates himself so as not
to disturb others.
[AR at 292.]

In his email correspondence with Rob, Plaintiff

stated that, on days when he is particularly agitated and “really
feeling the symptoms, . . . “[s]ometimes sitting/lying/standing
there and breathing isn’t enough, [he] need[s] a more violent
motion to feel better,” such as “[r]unning, sprinting, boxing,
somersaults, swimming,” or wrestling.

[AR at 286.]

These are

not activities Plaintiff could undertake during brief breaks in a
typical eight-hour work day.
Although the ALJ’s Decision notes Plaintiff’s position
that he needs one day off during the work week due to the effects
of his schizophrenia, see, e.g., Decision, AR at 25, the Decision
does not contain an analysis of this issue.

However, by

declining to include this limitation in Plaintiff’s RFC, the ALJ
effectively found that Plaintiff did not require one day off per
week and disregarded the evidence Plaintiff presented in support
of this limitation.

See id., AR at 20-29.

The evidence

Plaintiff offered came from himself and from lay witnesses.

As

to whether the ALJ properly rejected Plaintiff’s testimony, the
following standard applies:

24

“First, the ALJ must determine whether the
claimant has presented objective medical evidence
of an underlying impairment.” [Treichler, 775
F.3d] at 1102, quoting Lingenfelter v. Astrue, 504
F.3d 1028, 1036 (9th Cir. 2007). Then, if such
evidence is introduced and “the ALJ has not
determined that the claimant is malingering, the
ALJ must provide ‘specific, clear and convincing
reasons for’ rejecting the claimant’s testimony
regarding the severity of the claimant’s
symptoms.” Id., quoting Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996).[23]
Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017).

The

Ninth Circuit has also stated:
Lay testimony as to a claimant’s symptoms or
how an impairment affects the claimant’s ability
to work is competent evidence that the ALJ must
take into account. Nguyen v. Chater, 100 F.3d
1462, 1467 (9th Cir. 1996); Dodrill v. Shalala, 12
F.3d 915, 919 (9th Cir. 1993). We have held that
competent lay witness testimony “cannot be
disregarded without comment,” Nguyen, 100 F.3d at
1467, and that in order to discount competent lay
witness testimony, the ALJ “must give reasons that
are germane to each witness,” Dodrill, 12 F.3d at
919. We have not, however, required the ALJ to
discuss every witness’s testimony on a
individualized, witness-by-witness basis. Rather,
if the ALJ gives germane reasons for rejecting
testimony by one witness, the ALJ need only point
to those reasons when rejecting similar testimony
by a different witness. See Valentine [v. Comm’r
Soc. Sec. Admin.], 574 F.3d [685,] 694 [(9th Cir.
2009)] (holding that because “the ALJ provided
clear and convincing reasons for rejecting [the
claimant’s] own subjective complaints, and because
[the lay witness’s] testimony was similar to such
complaints, it follows that the ALJ also gave
germane reasons for rejecting [the lay witness’s]
testimony”). The applicable regulations are in
accord; they require the ALJ to consider testimony

23

Smolen has been superseded on other grounds by 20 C.F.R.
§ 416.929.
25

from family and friends submitted on behalf of the
claimant, see 20 C.F.R. §§ 404.1529(c)(3),
404.1545(a)(3), but do not require the ALJ to
provide express reasons for rejecting testimony
from each lay witness, see id.; see also
SSR 06-03p (recognizing that “there is a
distinction between what an adjudicator must
consider and what the adjudicator must explain in
the disability determination or decision”).
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (some
alterations in Molina).
Although ALJ found Plaintiff’s testimony about the
intensity, persistence, and limiting effects of his symptoms to
be only “partly credible,” [Decision, AR at 22,] the ALJ did not
make a finding that Plaintiff was malingering.

The ALJ

essentially found that Plaintiff’s medical records and the
opinions of the examining physicians and reviewing physicians did
not support a restriction that Plaintiff had to have one day off
during a work week.

Dr. Pien is Plaintiff’s treating physician

for his schizophrenia.

“By rule, the Social Security

Administration favors the opinion of a treating physician over
non-treating physicians.”

Orn v. Astrue, 495 F.3d 625, 631 (9th

Cir. 2007) (citing 20 C.F.R. § 404.1527).

Throughout his

treatment of Plaintiff, Dr. Pien noted Plaintiff’s desire to
return to work, his efforts to find a job, and that he was doing
well in his “job” at the tattoo shop.

See, e.g., AR at 358 (note

of 9/2/11 initial psychiatric evaluation, stating Plaintiff was
“looking for work in the retail sector”); AR at 350 (note of

26

1/15/13 psychotherapy session, stating Plaintiff “report[ed]
applying for about 5 part time retail jobs last month”); AR at
349 (note of 3/15/13 psychotherapy session, stating Plaintiff had
not secured a job yet, but is “more confident about being able to
hold a job” and “[p]lans to resume search soon”); AR at 380 (note
of 9/27/13 psychotherapy session, stating Plaintiff had been
“[w]orking full time since around May 2013” at the tattoo shop
and was “[d]oing well there”); AR at 378 (note of 1/23/14
session, stating Plaintiff was “[f]unctioning well full time at
job”); AR at 435 (note of 2/26/15 session, stating Plaintiff was
“[l]earning a lot of skills, knowledge while volunteering for
tattoo shop” and he “[h]opes to get a job w/benefits using this
education”); AR at 432 (note of 5/21/15 psychotherapy session,
stating Dr. Pien and Plaintiff “[d]iscussed job options he might
consider”).
Plaintiff’s efforts to try to reenter the work force
are commendable, but have been largely unsuccessful.

The only

fruit of those efforts has been Plaintiff’s volunteer position at
the tattoo shop.

The ALJ recognized that Plaintiff was spending

approximately thirty two hours per week volunteering at the
tattoo shop, see, e.g., Decision, AR at 17, 27, i.e. Plaintiff
has been taking approximately one day per week off.

The ALJ

found the volunteer position did not constitute substantial
gainful activity.

[Id. at 17.]

Ms. Sucher described the tasks

27

Plaintiff performed at the tattoo shop as “sometimes tak[ing] it
upon himself to do something like vacuuming” or “going to
retrieve something someone needs,” but “[h]is primary task . . .
is just being in the shop as a friend.”

[AR at 295.]

Although the Decision does not address the ALJ’s
rejection of the evidence regarding Plaintiff’s need to take a
day off, in rejecting the evidence regarding the extent of the
breaks Plaintiff needed during a work day, the ALJ stated
“[t]reating psychiatrist, Dr. Pien, also made no mention of easy
distractability, psychomotor agitation or restlessness, and
instead, regularly indicated the claimant was well oriented,
cooperative and displayed grossly intact concentration and
attention.”

[Decision, AR at 27.]

However, it should also be

noted that, in spite of their repeated discussion of Plaintiff’s
efforts to secure a job, Dr. Pien does not opine on the issue of
whether Plaintiff has the capacity and ability to work a fortyhour work week, or to maintain any type of paid employment.
Dr. Pien was not required to evaluate Plaintiff’s ability to work
because the purpose of his sessions with Plaintiff was not
employment-based.

That also means Dr. Pien’s comments about

Plaintiff’s focus and attention during their sessions should not
equate to findings regarding Plaintiff’s ability to work.
Further, Dr. Pien’s sessions were relatively brief, and the fact
that Plaintiff was able to stay on track during those sessions

28

does not necessarily indicate Plaintiff could sustain that same
level of focus and attention at a job over the course of a fortyhour work week.

See, e.g., AR at 350 & 380 (twenty-minute

sessions); AR at 432 (sixteen-minute session).
Thus, neither Plaintiff’s work at the tattoo shop nor
Dr. Pien’s observations about Plaintiff’s efforts to secure
employment constitute either: 1) specific, clear and convincing
reasons to reject Plaintiff’s testimony about the severity of his
symptoms; or 2) germane reasons to support the ALJ’s rejection of
the lay evidence submitted regarding Plaintiff’s need for one day
off per week.
On July 2, 2013, Plaintiff underwent a consultive
examination by William Marks, Ph.D.

Dr. Marks prepared a

Department of Human Resources Bureau of Disability Adjudication
physician’s report (“Marks Report”), which was “for the sole
purpose of social security services.”
Report) at 361.]

[AR, Exh. 2F (Marks

Thus, he specifically evaluated Plaintiff to

determine if Plaintiff had the ability to work.

Dr. Marks

opined:
Mr. Schuyler is capable of understanding simple
work instructions presented in verbal and written
form. His reading and functional mathematic
skills appear adequate at this time. Regarding
negative impact from mental health difficulties,
Mr. Schuyler may have some difficulty maintaining
regular employment attendance on a consistent
basis as evident from past work performance. He
appears capable of simple repetitive work tasks
under ordinary supervision; however, his mental
29

health condition may negatively impact consistent
work performance. His responses during the
interview suggest poor interpersonal skills to
work well with others on a consistent basis. He
appears to have difficulty suspecting others of
exploiting or deceiving him, feels others are
trying to influence him, has difficulty listening
to authority, trusting educational systems, and is
often suspicious and untrusting of others. He
would benefit from working with others who
understand his difficulties, offer minimal
contact, and are willing to work with him in
resolving his concerns. Regarding negative impact
from mental health difficulties, he appears able
to adapt to a low-demand, entry-level job, but may
have difficulty on a consistent basis, negatively
impacted from his mental health conditions. With
successful treatment of schizophrenia, the
prognosis would be a guarded positive prediction.
[AR at 368-69 (emphases added).]

Dr. Marks’s opinion that

Plaintiff would have difficulty maintaining consistent job
attendance and performance is consistent with Plaintiff’s
testimony about the severity of his symptoms and with the lay
testimony regarding Plaintiff’s need for a day off during a work
week.

However, the ALJ discounted Dr. Marks’s opinion because

such limitations were “not clearly evident during the evaluation
with Dr. Marks” and because of “other evidence showing
[Plaintiff] has continued to improve.”

[Decision, AR at 26.]

The ALJ gave more weight to Dr. Pien’s findings, “whose records
. . . describe [Plaintiff] to be consistently stable and
improving, as supported by the claimant’s activities of daily
living and the testimony at the hearing.”

30

[Id. at 27.]

It is true that, “[g]enerally, the opinions of
examining physicians are afforded more weight than those of
non-examining physicians, and the opinions of examining
non-treating physicians are afforded less weight than those of
treating physicians.”

Orn, 495 F.3d at 631 (citing 20 C.F.R.

§ 404.1527(d)(1)-(2)).

Dr. Pien is Plaintiff’s treating

psychiatrist, while Dr. Marks was an examining psychologist.
However, as previously noted, Dr. Pien did not opine on
Plaintiff’s ability to work.

Thus, his clinical observations

cannot be said to directly contradict Dr. Marks’s findings about
Plaintiff’s ability to work.

The ALJ disregarded Dr. Marks’s

findings about Plaintiff’s ability to work as contrary to
Dr. Pien’s statements about Plaintiff’s ability to perform
activities of daily living and Dr. Pien’s statements about
Plaintiff’s general improvements in his condition.

This was

legal error.
First, a claimant’s ability to perform activities of
daily living are only relevant to the credibility of his claimed
limitations if the activities of daily living are inconsistent
with those limitations.

Reddick v. Chater, 157 F.3d 715, 722

(9th Cir. 1998) (stating the Ninth Circuit has “recognized that
disability claimants should not be penalized for attempting to
lead normal lives in the face of their limitations” (some
citations omitted) (citing Cooper v. Bowen, 815 F.2d 557, 561

31

(9th Cir. 1987) (noting that a disability claimant need not
“vegetate in a dark room” in order to be deemed eligible for
benefits); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)
(“Many home activities are not easily transferable to . . . the
more grueling environment of the workplace, where it might be
impossible to periodically rest or take medication.”))).
Plaintiff lives in a condominium owned by his parents.
His father testified Plaintiff “[t]akes real good care of his
living quarters” and “keep[s] the place immaculately clean almost
excessive-compulsive.”

[7/8/15 Hrg. Trans., AR at 67.]

Plaintiff is able to take care of his personal hygiene and cook
for himself, but Plaintiff “has to kind of force himself to
remember to eat on occasion.”

[Id.]

He is able to keep

appointments with frequent reminders from his father.

Because of

his paranoia, Plaintiff generally will not open his mail or check
his phone messages.

His father has to go through them with him.

[Id. at 68; AR at 292 (letter to the ALJ from Plaintiff’s
mother).]

Plaintiff’s parents give him a monthly stipend, and he

is able to make it last through the month, but his father
testified, “financially pretty much I have to guide him through.”
[7/8/15 Hrg. Trans., AR at 68.]

These activities of daily living

are consistent with Plaintiff’s claimed limitations.

Plaintiff’s

activities of daily living do not constitute either: 1) specific,
clear and convincing reasons to reject Plaintiff’s testimony

32

about the severity of his symptoms; or 2) germane reasons to
support the ALJ’s rejection of the lay evidence submitted
regarding Plaintiff’s need for one day off per week.
Dr. Pien did note improvement that Plaintiff made over
time.

See, e.g., AR at 379 (note of 12/12/13 session, stating

Plaintiff’s “social and occupational functioning gradually
improving” and that he was “[c]oping w/symptoms better and
better”).

However,
such observations must be “read in context of the
overall diagnostic picture” the provider draws.
Holohan [v. Massanari], 246 F.3d [1195,] 1205
[(9th Cir. 2001)]; cf. Lester v. Chater, 81 F.3d
821, 833 (9th Cir. 1995) (“Occasional symptom-free
periods . . . are not inconsistent with
disability.”). The fact that a person suffering
from depression makes some improvement “does not
mean that the person’s impairment [] no longer
seriously affect[s] [his] ability to function in a
workplace.” Holohan, 246 F.3d at 1205; see also
Ryan [v. Comm’r of Soc. Sec.], 528 F.3d [1194,]
1200-01 [(9th Cir. 2008)].

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (some
alterations in Ghanim).

While Dr. Pien did note some improvement

in Plaintiff’s condition, nothing in the overall diagnostic
picture he draws disproves Dr. Marks’s opinion that Plaintiff
would have difficulty maintaining consistent work attendance and
performance.

Further, Dr. Marks’s opinion is supported by the

evidence in record regarding Plaintiff’s volunteer work at the
tattoo shop, the testimony by Plaintiff and his father, and the
letter submitted by Plaintiff’s mother.

33

Dr. Pien’s statements

about Plaintiff’s improvement do not constitute either:
1) specific, clear and convincing reasons to reject Plaintiff’s
testimony about the severity of his symptoms; or 2) germane
reasons to support the ALJ’s rejection of the lay evidence
submitted regarding Plaintiff’s need for one day off per week.
The ALJ also noted Plaintiff did not need breaks during
Dr. Marks’s evaluation.

[Decision, AR at 27.]

While the Marks

Report does not state Plaintiff required breaks during the
evaluation, a consultive evaluation is a single event, and the
fact that Plaintiff did not need a break during the evaluation
does not necessarily show he could complete a standard eight-hour
work day with only the standard break periods.

Further,

Dr. Marks opined, based on his review of Plaintiff’s history and
his observations of Plaintiff during the evaluation, that
Plaintiff may have difficulty maintaining consistent work
attendance and performance.

This is consistent with Plaintiff’s

position that he would only be capable of work if he is able to
have one day off per week to manage his symptoms.

The ALJ

committed legal error in disregarding Dr. Marks’s opinion.
Finally, as to the ALJ’s reliance on the opinions of
the State Psychological Consultants and Dr. Gordy, they were
merely reviewing physicians, and their opinions are generally
entitled to less weight than Dr. Marks’s.
631.

See Orn, 495 F.3d at

Dr. Gordy filled out Social Security Administration forms

34

and provided limited analysis.

[AR, Exh. 11F.]

Dr. Gordy

ultimately opined that Plaintiff could perform simple, repetitive
work, interact with co-workers, and have limited interaction with
supervisors.

However, in support of these opinions, Dr. Gordy

cited Plaintiff’s thirty-two-hour-per-week volunteer position.
[AR at 472.]

The State Psychological Consultants also noted

Plaintiff’s work at the tattoo shop and Dr. Pien’s observation of
gradual improvement in Plaintiff’s condition.

[AR at 98.]

As

previously noted, Dr. Pien’s statements about the improvement of
Plaintiff’s condition are not probative of Plaintiff’s ability to
work a forty-hour work week.

Further, Plaintiff’s ability to

hold his volunteer position at the tattoo shop, with its unique
duties and schedule, does not prove that he could work a
traditional forty-hour per week job.

Even Ms. Sucher stated

that, as much as she and her staff enjoy having Plaintiff at the
tattoo shop, she “would not recommend [Plaintiff] participate in
regular employment, because [she] just do[es] not see that he is
able at this time.”

[AR at 295.]

Thus, the ALJ committed legal error because: 1) the
ALJ’s rejection of Plaintiff’s testimony regarding the severity
of his symptoms was not supported by specific, clear and
convincing reasons; and 2) the ALJ’s rejection of the lay
evidence submitted regarding Plaintiff’s need for one day off per
week to manage his symptoms was not supported by germane reasons.

35

The record is fully developed on the issue of whether Plaintiff
requires one day off per week, and this Court concludes that
further proceedings on the issue are not necessary.

The evidence

that Plaintiff requires one day off during the work week is
therefore deemed credible as a matter of law.

See Treichler, 775

F.3d at 1100-01 (discussing the analysis under the “credit-astrue” rule).24
II.

Harmless Error
During the VE’s testimony, the ALJ described a

hypothetical worker with Plaintiff’s characteristics and the
limitations that the ALJ ultimately included in the RFC.
Hrg. Trans. at 71.]

[7/8/15

The VE testified that, if the hypothetical

worker also required one day off per week, there would be no jobs
he could do.

[Id. at 73.]

Based on the VE’s testimony, the

ALJ’s error in rejecting the evidence that Plaintiff requires one
day off in a work week was not harmless.

See Treichler, 775 F.3d

at 1099 (“An error is harmless if it is ‘inconsequential to the
ultimate nondisability determination.’” (quoting Alaska Dep’t of
Envtl. Conserv. v. EPA, 540 U.S. 461, 497, 124 S. Ct. 983, 157 L.
Ed. 2d 967 (2004))).
In light of this Court’s rulings, the ALJ’s ultimate
ruling that Plaintiff was not disabled was not supported by

24

The “credit-as-true” rule is also referred to as the
Varney rule, from Varney v. Secretary of Health & Human Services,
859 F.2d 1396 (9th Cir. 1988).
36

substantial evidence.

It is not necessary for this Court to

reach the other arguments raised in Plaintiff’s Appeal, and this
Court makes no findings or conclusions as to those other
argument.

Plaintiff’s Appeal is granted insofar as the ALJ’s

ruling that Plaintiff is not disabled is reversed.
III. Remand
The Ninth Circuit has stated,
when “the record before the agency does not
support the agency action, . . . the agency has
not considered all relevant factors, or . . . the
reviewing court simply cannot evaluate the
challenged agency action on the basis of the
record before it, the proper course, except in
rare circumstances, is to remand to the agency for
additional investigation or explanation.” Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744,
105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985). The
Supreme Court has referred to this remand
requirement as the “ordinary ‘remand’ rule.”
Gonzales v. Thomas, 547 U.S. 183, 185, 126 S. Ct.
1613, 164 L. Ed. 2d 358 (2006) (internal quotation
marks omitted).
Id. (alterations in Treichler).
in social security cases.

Id.

The ordinary remand rule applies
The Ninth Circuit will “generally

remand for an award of benefits only in rare circumstances, where
no useful purpose would be served by further administrative
proceedings and the record has been thoroughly developed.”

Id.

at 1100 (citations and internal quotation marks omitted).
Because the elements of the credit-as-true rule are
satisfied in this case, it presents “the ‘rare circumstances’

37

that allow us to exercise our discretion to depart from the
ordinary remand rule.”

Id. at 1101.

Of course, even when those “rare circumstances”
are present, “[t]he decision whether to remand a
case for additional evidence or simply to award
benefits is in our discretion,” Swenson v.
Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). See,
e.g., Harman v. Apfel, 211 F.3d [1172,] 1178 [(9th
Cir. 2000)] (holding that the exercise of
authority to remand for benefits “was intended to
be discretionary and should be reviewed for abuse
of discretion”). We have frequently exercised our
discretion to remand for further proceedings,
rather than for benefits. See Connett v.
Barnhart, 340 F.3d 871, 874–76 (9th Cir. 2003)
(citing cases and reaffirming that the reviewing
court retains discretion to remand for further
proceedings even when the ALJ fails “to assert
specific facts or reasons to reject [the
claimant]’s testimony”); see also Garrison, 759
F.3d at 1021 (noting that a district court retains
the flexibility to “remand for further proceedings
when the record as a whole creates serious doubt
as to whether the claimant is, in fact, disabled
within the meaning of the Social Security Act.”).
Id. at 1101-02 (some alterations in Treichler) (emphasis added)
(footnotes omitted).
Viewing the record as a whole and in light of this
Court’s rulings, there are no serious doubts as to whether
Plaintiff is or is not disabled.

This Court, in the exercise of

its discretion, concludes that further proceedings are not
necessary and remands the case to the ALJ for the determination
and award of benefits.

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CONCLUSION
On the basis of the foregoing, Plaintiff’s appeal of
the Administrative Law Judge’s October 15, 2015 Decision is
HEREBY GRANTED insofar as the ALJ’s Decision is REVERSED and the
case is REMANDED to the ALJ for the determination and payment of
benefits.
There being no remaining issues in this case, the Court
DIRECTS the Clerk’s Office to enter judgment and close the case
immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 21, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

SEAN PHILIP SCHUYLER VS. NANCY A. BERRYHILL, ETC; CIVIL 17-00277
LEK-KSC; ORDER GRANTING PLAINTIFF’S APPEAL AND REVERSING THE
ADMINISTRATIVE LAW JUDGE’S OCTOBER 15, 2015 DECISION

39