Anastasi v. Saul

Filing 22

OPINION and ORDER. IT IS ORDERED that Plaintiff's request for remand is GRANTED. The Commissioner's decision is REVERSED and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Signed by Judge Donald W. Molloy on 4/28/2021. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MARIAH V.A.,

CV 20–121–M–DWM

Plaintiff,
v.

OPINION
and ORDER

ANDREW SAUL, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of Social Security denying her
application for disability insurance benefits under Title II of the Social Security
Act and her application for Supplemental Social Security Income disability
benefits under Title XVI of the Social Security Act. 42 U.S.C. §§ 401–33.
LEGAL STANDARD
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s
denial of Social Security benefits if the ALJ’s findings are based on legal error or
not supported by substantial evidence in the record. Revels v. Berryhill, 874 F.3d
648, 654 (9th Cir. 2017). “Substantial evidence means more than a mere scintilla,
but less than a preponderance.” Id. (internal quotation marks omitted). It is “such
relevant evidence as a reasonable mind might accept as adequate to support a
1

conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal quotation
marks omitted). “If evidence can reasonably support either affirming or
reversing,” the reviewing court “may not substitute its judgment” for that of the
Commissioner. Reddick v. Chater, 157 F.3d 715, 720–21 (9th Cir. 1998). And,
even if an ALJ errs, the decision will be affirmed where such error is harmless; that
is, if it is “inconsequential to the ultimate nondisability determination,” or if “the
agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492
(9th Cir. 2015) (as amended) (internal quotation marks omitted).
A claimant for disability benefits bears the burden of proving that disability
exists. 42 U.S.C. § 423(d)(5). Disability is the “inability 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), 1382c(a)(3)(A). A claimant is disabled only if her
impairments are of such severity that she is unable to do her previous work and
cannot, considering her age, education, and work experience, engage in any other
substantial gainful activity in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
In determining disability, the ALJ follows a five-step sequential evaluation
2

process. Tackett, 180 F.3d at 1098; 20 C.F.R. § 404.1520(a)(4)(i)-(v). The process
begins, at the first and second steps, “by asking whether a claimant is engaged in
‘substantial gainful activity’ and considering the severity of the claimant’s
impairments.” Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). “If the
inquiry continues beyond the second step, the third step asks whether the
claimant’s impairment or combination of impairments meets or equals a listing
under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement.” Id.
“If the process continues beyond the third step, the fourth and fifth steps consider
the claimant’s ‘residual functioning capacity’ in determining whether the claimant
can still do past relevant work or make an adjustment to other work.” Id. At step
five, the burden shifts to the Commissioner. Tackett, 180 F.3d at 1099. “If a
claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence,
there is no need to consider subsequent steps.” Id.
BACKGROUND
On February 20, 2017, Plaintiff filed an application for disability insurance
benefits and for Supplemental Social Security Income disability benefits. AR 21.
In both applications, she alleged disability beginning December 1, 2015. See AR
53 (onset date amended at hearing). Her claims were initially denied on September
28, 2017, AR 140–42, and upon reconsideration on April 28, 2018, AR 148–53.
Plaintiff filed a written request for hearing, AR 156–57, which was held on August
3

13, 2019 by Administrative Law Judge (“ALJ) Michele M. Kelley, see AR 47–75.
Plaintiff testified, as did vocational expert Karen Black. See id. Plaintiff was
represented by counsel. Id.
On September 25, 2019, the ALJ issued a decision denying benefits. AR
21–38. At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since her onset date. AR 24. At step two, the ALJ found Plaintiff had the
following severe impairments: degenerative disc disease of the lumbar spine,
neuropathy, endometriosis, major depressive disorder, generalized anxiety
disorder, borderline personality disorder, obsessive-compulsive disorder (“OCD”),
and posttraumatic stress disorder (“PTSD”). AR 24. At step three, the ALJ found
Plaintiff did not meet or equal the requirements of a listed impairment. AR 25.
At step four, the ALJ determined Plaintiff had a residual functioning
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b),
416.967(b), meaning Plaintiff
can lift, carry, push, and pull 20 pounds occasionally and 10 pounds
frequently. The claimant can stand and walk for two hours out of an
eight-hour day and sit for six hours out of an eight-hour day. The
claimant should avoid concentrated exposure to vibrations, fumes,
odors, dusts, gases, poor ventilation, and hazards, including
unprotected heights and dangerous machinery. The claimant should
avoid concentrated exposure to noise greater than three out of five on
the scale set forth in the SCO [Selected Characteristics of Occupations].
The claimant can understand, remember, and carry out simple tasks.
The claimant can maintain attention, concentration, persistence, and
pace for such tasks for an eight-hour workday and 40-hour workweek.
The claimant can tolerate only occasional interaction with supervisors,
4

co-workers, and the public. The claimant can tolerate usual simple
work situations and can tolerate only occasional changes in routine
work settings. The claimant should have the option to wear shaded
lenses and/or a hat or visor.
AR 28. While the ALJ found Plaintiff was not able to perform her past relevant
work based on the above, AR 36, she found that Plaintiff could perform work
existing in significant numbers in the national economy at step five, AR 37.
Specifically, the ALJ noted the following positions identified by the vocational
expert: office helper, final assembler, and document preparer. AR 37.
On June 18, 2020, the Appeals Council denied Plaintiff’s request for review,
AR 3–5, making it a final decision. Brewes v. Comm’r of Social Sec. Admin., 682
F.3d 1157, 1161–61 (9th Cir. 2012). On August 13, 2020, proceeding in forma
pauperis, (Docs. 1, 3), Plaintiff appealed that decision to this Court, (Doc. 2).
Following COVID-19 related extensions, the Commissioner filed the certified
administrative record on December 22, 2020. (See Doc. 17.) The matter was fully
briefed as of March 30, 2021. (See Docs. 19, 20, 21.)
ANALYSIS
The ALJ’s specific reasons for giving little weight to Plaintiff’s mental
health treatment providers’ assessment of her work-related functionality are not
supported by substantial evidence in the record. The ALJ also failed to consider
Plaintiff’s treatment needs in assessing her RFC. Remand is appropriate.
I.

Treating Physicians and Providers
5

Plaintiff first argues that the ALJ improperly discounted the findings of her
treating physicians and providers. In assessing disability, an ALJ may rely on the
opinions of three types of physicians: “(1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the claimant (examining
physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Under the “treating physician rule,” 1 the ALJ is required to give deference to the
treating physician as follows:
As a general rule, a treating physician’s opinion is entitled to substantial
weight. Nevertheless, the ALJ need not accept the opinion of a treating
physician. If a treating physician’s opinion is not contradicted by other
evidence in the record, the ALJ may reject it only for clear and
convincing reasons supported by substantial evidence in the record.
But if the treating doctor’s opinion is contradicted by another doctor,
the ALJ may discount the treating physician’s opinion by giving
specific and legitimate reasons that are supported by substantial
evidence in the record. The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings.
Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (internal quotation marks,
alterations, and citations omitted).
Demi Llovet, FNP, has been Plaintiff’s primary care provider since May
2017. AR 1536. But Plaintiff has seen numerous healthcare providers and

The 2017 regulations eliminate the deference given to treating physicians for
claims filed after March 27, 2017. See 20 C.F.R. § 416.920c(a).
6
1

undergone multiple procedures. See AR 347–400 (medical chronology). Relevant
here, her primary care providers for her endometriosis have been Robert Humble,
MD and Janice Givler, MD. Her primary care providers for her knee and ankle
issues have been Brent Roster, MD and Michael Wright, MD. And, for her mental
health impairments, her primary care providers have been Nathaniel Hoyme,
LCSW; Cory Smith, LCSW; Phillip Holman, MD; Eric Flauvin, PMHNP; and
Michael Thein, MD.2
As part of her disability claim, she was assessed by state examiners in both
2017 and 2018, first by Timothy Schofield, MD, AR 85–89, and Marsha
McFarland, PhD, AR 79–84, in September 2017, and then by Carlos JusinoBerrios, MD, AR 101–13, and Jose Rabelo, MD, AR 114–19, in April 2018. Both
evaluations concluded that while Plaintiff had mild limitations in her work-related
abilities, she had an RFC for sedentary and a MRFC for unskilled work and was
therefore not disabled. See, e.g., AR 122.
In response, Plaintiff got Medical Source Statements regarding her mental
ability to perform work-related activities from Dr. Thein, see AR 1509–11, and
Mr. Hoyme, see AR 1533–35. She also got a Medical Source Statement regarding
her physical ability to perform work-related activities from Ms. Llovet, see AR
Plaintiff has also received care from Saul Rivard, MD; Katherine Krebsbach, DO;
Amanda Morey, MD; Kinsey Fisher, APRN; Eric Stone, MD; Michael Woods,
MD; and Andrew Denis McCarthy, MD.
7
2

1539–44. The assessments conclude that Plaintiff’s mental and physical
limitations effectively prevent her from being able to work. Although the ALJ
gave some weight to Dr. Thein, Mr. Hoyme, and Ms. Llovet’s opinions and
observations elsewhere in the record, she gave little weight to these three
assessments, primarily on the ground that their conclusions about Plaintiff’s work
functionality were not consistent with the evidence in the record, either medical or
otherwise. Because the opinions are contradicted by the state examiners, in
rejecting them, the ALJ was required to give “specific and legitimate reasons that
are supported by substantial evidence in the record.” Ford, 950 F.3d at 1154.
A.

Michael Thein, M.D.

The record indicates that Plaintiff began seeing Dr. Thein in January 2019 to
address her mental health issues. See AR 915–923. On July 15, 2019, he opined
that Plaintiff was “seriously limited” or had “no useful ability to function” in
nearly all areas of the mental abilities and aptitudes needed to do unskilled, semiskilled, and skilled work, including interacting with others, and would miss more
than four days of work per month. See AR 1509–11. The ALJ determined that the
record was not consistent with this opinion, specifically because:
(1) On November 25, 2015, Mr. Smith found a “constricted and
blunted” affect, but also found good eye contact, cooperative demeanor,
clear speech, intact thought process, good memory, average
intelligence, and the ability to spell “world” forward and backward. See
AR 828.
8

(2) On February 6, 2017, Plaintiff reported to Dr. Holman that her
depression was much improved, her sleep was better, and her anxiety
was also improved. See AR 583.
(3) On August 9, 2017, Plaintiff reported to Dr. Givler that she was
“mentally stable.” See AR 603.
(4) On September 13, 2018, Dr. Holman’s progress notes indicate that
Plaintiff denied any depression and reported that she was sleeping and
eating well and her anxiety was okay. See AR 927.
(5) On February 11, 2019, Dr. Thein noted that Plaintiff’s mood was
“more stable and she is less depressed” and that medication was helping
her anxiety. See AR 912.
(6) On July 15, 2019, 3 Dr. Thein found a depressed mood and blunted
affect, but also found fair eye contact, pleasant and cooperative
behavior, normal speech, logical thought process, and grossly intact
cognition. See AR 921.
Plaintiff challenges the ALJ’s determination on the ground that snapshots of
mental improvement are not necessarily concomitant with the capacity to function
in the workplace. That argument has merit. In Garrison v. Colvin, the Ninth
Circuit determined it was error for an ALJ “to reject a claimant’s testimony merely
because symptoms wax and wane in the course of treatment.” 759 F.3d 995, 1017
(9th Cir. 2014). The court explained that “[c]ycles of improvement and
debilitating symptoms are a common occurrence, and in such circumstances it is

The ALJ’s citation to 13F/13, or AR 921, is to a Psychiatric Evaluation
completed on January 31, 2019. While this error by itself is insufficient to
undermine the ALJ’s conclusion, it evidences an attempt to pick specific instances
in Plaintiff’s medical records to fit the ALJ’s narrative of improvement.
9
3

error for an ALJ to pick a few isolated instances of improvement over a period of
months or years and to treat them as a basis for concluding a claimant is capable of
working.” Id.; Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That
a person who suffers from severe panic attacks, anxiety, and depression makes
some improvement does not mean that the person’s impairments no longer
seriously affect her ability to function in a workplace.”).
Here, the record reveals that while some of Plaintiff’s symptoms came and
went (panic attacks, trouble sleeping, low energy), other symptoms have
consistently persisted (depression, anxiety):
2016
- January 7 and 16: Mr. Smith – found Plaintiff’s clinical scores
consistent with “severe depression,” AR 817–20;
- December 12: Dr. Holman – “she has been getting more depressed over
the past six months,” “difficulties with sleep, appetite, energy,”
“complains of increased anxiety,” has worsening panic attacks, AR
589–90;
2017
- January 11: Dr. Holman – “depression continues,” “sleep still off,”
“anxiety still problematic,” AR 587;
- April 14: Dr. Holman – “moderate depression,” “sleep off, appetite,
energy also off,” and “anxiety has been a lot worse,” AR 580;
- July 18: Dr. Holman – “depression is still there” and “anxiety has been
also a problem,” AR 577;
- August 18: Dr. Holman – “anxiety has been more of a problem,” AR
574;
- October 6: Dr. Holman – “depression is worse” and “anxiety is also
worse,” AR 942;
10

- November 6: Dr. Holman – “depression is not as bad” but “anxiety is
still a problem for her,” AR 939;
2018
- March 15: Dr. Holman – “depression has increased in the past month”
and “sleep problems,” AR 936;
- May 14: Dr. Holman – “depression has gotten worse” and “appetite and
energy also not well,” AR 933;
- November 19: Dr. Holman – “increased depression,” AR 924;
2019
- January 31: Dr. Thein – ability to control anxiety through medication
only partially successful but medication of depression “has certainly
headed this patient in the right direction,” AR 912;
- January 31: Dr. Thein – “Psychiatric Evaluation” stating that Plaintiff
is “at high risk for decompensation,” AR 915; and
- February 11: Dr. Thein – noting her continued depression and that she
“continues to avoid leaving her house as much as possible,” AR 909.
The record also shows that instances of improvement cited by the ALJ merely
regard her mood or general affect, not her ability to work. Accordingly, substantial
evidence does not support the specific reasons the ALJ gave for rejecting Dr.
Thein’s assessment of Plaintiff’s mental functionality.
The Commissioner further argues, however, that Dr. Thein’s assessment
may be disregarded as “brief, conclusory, and inadequately supported by clinical
findings.” (Doc. 20 at 13, 15 (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th
Cir. 2002).) The Commissioner also argues that “contradictions between a
doctor’s opinion and that doctor’s own clinical notes and observations ‘is a clear
and convincing reason for not relying on the doctor’s opinion[.]’” (Id. at 15
11

(quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).) But as
discussed above, Dr. Thein’s workplace assessment does not contradict his notes or
those of other care providers that indicate Plaintiff ‘s symptoms varied day-to-day.
To the contrary, the record shows a consistent struggle with depression, anxiety,
and PTSD as discussed above. “Dr. [Thein]’s statements must be read in context
of the overall diagnostic picture he draws.” Holohan, 246 F.3d at 1205. Based on
the above, it was error for the ALJ to discredit his opinion.
B.

Nathan Hoyme, LCSW

The ALJ also gave little weight to the opinions of Mr. Hoyme, who began
seeing Plaintiff for her mental health issues as early as 2013. See AR 1535. On
August 8, 2019, Mr. Hoyme opined that “any expectations of [Plaintiff] being able
to consistently follow instructions, cope with normal workplace day-to-day
pressures, and/or maintain regular and punctual attendance should be judiciously
considered.” AR 1531. On August 9, 2019, Mr. Hoyme also completed a workrelated activities assessment, opining that the claimant was unable to meet
competitive standards or had no useful ability to function in all areas of the mental
abilities and aptitudes needed to do unskilled, semi-skilled, and skilled work,
including interacting with others, and would miss more than four days of work per
month due to her impairments or treatment. AR 1533–35. The ALJ rejected these
opinions, primarily on the same grounds discussed in the context of Dr. Thein. See
12

AR 33–34. According to the ALJ, specific instances of improvement sprinkled
throughout Plaintiff’s mental health records discount his functionality assessment.
See id. As discussed above, such “cherry-picking” is not substantial evidence
contradicting his opinions.
Moreover, and somewhat ironically, the ALJ also undervalued Mr. Hoyme’s
opinion on the ground that he “is focused on episodic decompensations, rather than
the mental health treatment record as a whole.” AR 34. However, Mr. Hoyme’s
treatment summary indicates he met with Plaintiff no less than 35 times from 2016
to 2019, AR 1528, and that he has been treating her since 2013, AR 1535. And his
assessment does not specifically tie his functional capacity conclusions to any
single event over that time frame. To the contrary, he addresses Plaintiff’s mental
state broadly and concludes that there is a direct correlation between her mental
condition and her “physical experience of pain.” AR 1533.
Accordingly, substantial evidence does not support the reasons the ALJ gave
for rejecting Mr. Hoyme’s opinions.
C.

Deni Llovet, FNP

Finally, the ALJ gave little weight to the opinions of Ms. Llovet, who has
been treating Plaintiff as her general provider since May 2017. AR 1536. On
March 20, 2018,4 Ms. Llovet completed a Third-Party Function Report, generally
4

This date is cited incorrectly as May 20, 2018 in the ALJ’s decision. See AR 34.
13

indicating that Plaintiff’s pelvic pain prevents her from performing some tasks and
her mental health issues prevent her from interacting normally with others. AR
294–301. On August 5, 2019, Ms. Llovet prepared a “Medical Source Statement,”
opining that Plaintiff could frequently lift up to 10 pounds and occasionally lift 11
to 20 pounds; occasionally carry up to 10 pounds; sit for one hour, stand for 10
minutes, and walk for 15 minutes at a time; sit for 7 hours, stand for 10-15 minutes
and walk for 45-50 minutes of an 8-hour work day; walk 50 yards without the use
of a cane; and occasionally climb stairs, stoop, or crouch. AR 1539–44. On
August 8, 2019, Ms. Llovet also provided a letter stating that Plaintiff is unable to
work due to both her mental and physical impairments. See AR 1536–37.
The ALJ concluded that the evidence in the record was not consistent with
Ms. Llovet’s opinion of Plaintiff’s physical abilities on the grounds that:
(1) Plaintiff refuses to undergo an oophorectomy to ease her endometrial pain
symptoms; (2) medical records show her endometriosis was improving;
(3) medical records show her motor and sensory functions were improving; (4) Ms.
Llovet “appeared to rely on [Plaintiff]’s subjective allegations of her functional
abilities, as indicated by her note that the limitations were ‘stated’”; and (5) there is
no support in the record for use of a cane. AR 34.
As it relates to Plaintiff’s refusal to undergo an oophorectomy, the
regulations implementing the Social Security Act do require a claimant to follow a
14

prescribed course of treatment. See 20 C.F.R. §§ 404.1530(b), 416.930(b).
However, “it is improper to deny benefits on the basis of a declined surgery when
surgery is only a suggested rather than a prescribed course of treatment.” See
Aguirre v. Astrue, 2009 WL 3346741, at *5 (C.D. Cal. Oct. 14, 2009) (collecting
cases). In this case, although an oophorectomy was recommended, see AR 812,
1382, 1537, the medical evidence does not indicate that such a surgery was ever
prescribed. Moreover, as argued by Plaintiff, it is reasonable for her to refuse to
undergo forced sterilization, see § 404.1530(c) (outlining good reasons for not
following treatment). Thus, this does not qualify as substantial evidence to reject
Ms. Llovet’s opinion. Nor does Ms. Llovet’s qualified assessment that Plaintiff’s
lift and carry abilities are as “stated.” See AR 1539. While an ALJ is “not
required to take medical opinions at face value” if they lack adequate explanation,
Ford, 950 F.3d at 1155, the same “lift” and “carry” findings were made by the
state examiners, see AR 97 (Schofield), 115 (Rabelo). Thus, the record supports,
as opposed to contradicts, Plaintiff’s stated abilities.
That said, Plaintiff’s general physical condition is a closer question. The
ALJ relies on portions of the record that show Plaintiff was experiencing less pain
from her endometriosis and greater mobility. But those same records show that
pain related to her endometriosis persisted, see AR 724, so much so that her
providers recommended an oophorectomy to remove her ovaries as discussed
15

above, see AR 1497. And while she initially stated that Aygestin had helped with
the pain, she reported in February 2019 that Aygestin was not helping at all. See
AR 1386. But at the same time, Dr. Givler described her endometriosis as
“minimal” in both September 2017, AR 724, and March 2019, AR 1372. Thus, the
record on this issue is decidedly mixed. And the record supports the ALJ’s finding
that Plaintiff’s motor function improved in 2019, following surgery on her ankles,
see AR 864, 867, 1562, and knees, see AR 1472–83. And while the record does
contain some reference to use of a cane, see AR 104–05, 1528, 921, there are also
references to her having a “normal” or unimpeded gait. See, e.g., AR 1479, 1562.
Considered as a whole, the record is mixed on Plaintiff’s physical functional
capabilities. In the context of judicial review, because the evidence as to Plaintiff’s
physical condition is susceptible to more than one rational interpretation, and the
ALJ’s findings are “supported by inferences reasonably drawn from the record,”
those findings must be upheld. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th
Cir. 2008). Therefore, the ALJ did not err in giving little weight to Ms. Llovet’s
physical assessment. 5
II.

The Listings

Ms. Llovet bases some of her conclusions on the interplay between Plaintiff’s
mental and physical impairments. See AR 1537. The ALJ did not provide any
specific reasons for rejecting Ms. Llovet’s opinions regarding Plaintiff’s mental
functionality.
16

5

At step three of the ALJ’s sequential evaluation, the claimant can establish
disability if she proves that her impairments meet or medically equal a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 (hereinafter App. 1).
Kennedy, 738 F.3d at 1175–76. “Listed impairments are purposefully set at a high
level of severity because ‘the listings were designed to operate as a presumption of
disability that makes further inquiry unnecessary.’” Id. at 1176 (quoting Sullivan
v. Zebley, 493 U.S. 521, 532 (1990)). Put differently, “[t]he listings define
impairments that would prevent an adult, regardless of his age, education or work
experience, from performing any gainful activity, not just ‘substantial gainful
activity.’” Zebley, 493 U.S. at 532 (quoting 20 C.F.R. § 416.925(a) (1989)). Thus,
a claimant must show that she meets “all of the specified medical criteria” for a
specific listing as “[a]n impairment that manifests in only some of those criteria, no
matter how severely, does not qualify.” Id. at 530 (footnote omitted).
In determining whether a claimant with a mental illness meets a listed
impairment, the ALJ must follow a “special technique” to evaluate the claimant’s
symptoms and rate her functional limitations. 20 C.F.R. § 404.1520a(a).
Specifically, the ALJ must consider: (1) whether specific diagnostic criteria are
met under Paragraph A (the “A criteria”); and (2) whether specific impairmentrelated functional limitations are present under Paragraphs B (the “B criteria”) or C
(the “C criteria”). 20 C.F.R. § 404.1520a(b). Paragraph A substantiates the
17

presence of a particular mental disorder. App. 1. at § 12.00(A)(2)(a). Paragraphs
B and C, on the other hand, describe impairment-related functional limitations that
are incompatible with the ability to do any gainful activity. Id. at § 12.00(A)(2)(b),
(c).
Here, Plaintiff contends that her mental impairments satisfy the criteria for
12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessivecompulsive disorders), 12.08 (personality and impulse-control disorders),6 and
12.15 (trauma and stressor-related disorders). In her decision, the ALJ elected to
analyze all four impairments simultaneously. See AR 26–27. The ALJ apparently
assumed the existence of the A criteria for all four listings, as she engaged in no
discussion as to whether the requirements of Paragraph A were met. However, the
ALJ determined that these impairments were not sufficiently severe to meet the
requirements of Paragraph B or C. Id. However, consideration of Dr. Thein and
Mr. Hoyme’s opinions may impact the ALJ’s step three determination.
III.

Treatment
Plaintiff further argues that the ALJ erred in assessing her residual

functioning capacity (“RFC”) at step four “by failing to analyze the mechanics of
treatment, specifically the frequency of treatment, duration and disruption of

To meet or equal listing 12.08, a claimant must satisfy the requirements of
Paragraphs A and B. App. 1. at § 12.00(A)(2).
18
6

routine, in order to improperly discount the treating healthcare providers as well as
[Plaintiff]’s testimony.” (Doc. 19 at 21.) In doing so, Plaintiff relies on Social
Security Rule 96-8p, or SSR 96-8p, 7 which requires that the frequency and
duration of treatment be incorporated into the RFC of a claimant. In response, the
Commissioner does not argue that the ALJ considered treatment needs, but rather
that her failure to do so was harmless. That is not persuasive.
To show that an ALJ’s error was not harmless, a claimant must demonstrate
a “substantial likelihood of prejudice.” Ludwig v. Astrue, 681 F.3d 1047, 1054
(9th Cir. 2012). Here, the Commissioner argues the failure to consider treatment
was not prejudicial because the record shows that Plaintiff “averaged about one
appointment every two weeks” and that there is no evidence that she “would miss
work for her medical appointments.” (Doc. 20 at 26.) But neither of these
conclusions is supported by the record. To the contrary, the record shows that
Plaintiff averaged the following treatment days per month each year: 2016–2.33,
2017–3.92, 2018–3.75, and 2019–5.14. And, both Dr. Thein and Mr. Hoyme
specifically opined that Plaintiff would be absent from work more than four days

Although Social Security Rulings do not have the same force and effect as the
statute or regulations, they are binding on all components of the Social Security
Administration and are to be relied upon as precedents in adjudicating cases. 20
C.F.R. § 402.35(b)(1); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1224 (9th Cir. 2009) (“[Social Security Rulings] do not carry the ‘force of
law,’ but they are binding on ALJs nonetheless.”).
19
7

per month due to her impairments and/or her treatment. See AR 1511, 1535.
While the ALJ considered Plaintiff’s physical and mental impairments and daily
activities, see AR 32–33, 36, she did not consider how Plaintiff’s treatment needs
would potentially interfere with her ability to work. The prejudice of this omission
is demonstrated in the vocational expert’s hypothetical. Ms. Black testified that if
an individual were off-task at least 20% of an eight-hour workday or 40-hour work
week, including normal work breaks, that individual would not be able to perform
competitive work. See AR 72. As argued by Plaintiff, the amount of time needed
for medical care alone could potentially exceed this threshold. Accordingly, it was
error for the ALJ to not consider Plaintiff’s treatment needs.
IV.

Vocational Expert Hypotheticals
Hypothetical questions posed to the vocational expert must set out all the

limitations and restrictions of the particular claimant. Embrey v. Bowen, 849 F.2d
418, 422 (9th Cir. 1988). “The testimony of a vocational expert ‘is valuable only to
the extent that it is supported by medical evidence.’” Magallanes v. Bowen, 881
F.2d 747, 756 (9th Cir 1989) (quoting Sample v. Schweiker, 694 F.2d 639, 644 (9th
Cir. 1982)). If the assumptions in the hypothetical are not supported by the record,
then the vocational expert’s testimony that the claimant could perform other work
existing in the national economy has no evidentiary value. Embrey, 849 F.2d at
422. As discussed above, the ALJ did not provide adequate reasons for finding Dr.
20

Thein and Mr. Hoyme’s opinions unpersuasive or for failing to consider Plaintiff’s
treatment needs. These errors may have affected the ALJ’s hypothetical, and in
turn, they undermined the vocational expert’s testimony that Plaintiff could
perform other work existing in the national economy.
V.

Remand
Based on the foregoing, remand is warranted. Such a remand can take the

form of either a “remand for further proceedings or for an award of benefits.” 42
U.S.C. § 405(g). Although a court should generally remand to the agency for
additional investigation or explanation, a court has discretion to remand for
immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775
F.3d 1090, 1099–100 (9th Cir. 2014). But it should only do so if the record has
been fully developed and there are no outstanding issues left to be resolved.
Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Here, there are
outstanding issues to be resolved. On remand, the ALJ should reevaluate the
opinions of Dr. Thein and Mr. Hoyme, as well as consider Plaintiff’s treatment
needs. It is therefore not clear that Plaintiff is disabled. Remand for further
proceedings is appropriate. Treichler, 775 F.3d at 1105.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Plaintiff’s request for remand
is GRANTED. The Commissioner’s decision is REVERSED and this matter is
21

REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this opinion.
DATED this 28th day of April, 2021.

22