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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 B.F.S., Case No. 8:19-cv-01428-SHK 12 Plaintiff, 13 v. OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff B.F.S.1 (“Plaintiff”) seeks judicial review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying his application for disability insurance 21 benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This 22 Court has jurisdiction under

(g), and, pursuant to 28 U.S.C. 23 § 636(c), the parties have consented to the jurisdiction of the undersigned United 24 States Magistrate Judge. For the reasons stated below, the Commissioner’s 25 decision is REVERSED and this action is REMANDED for further proceedings 26 consistent with this Order. 27 1 I. BACKGROUND 2 Plaintiff filed an application for DIB on February 22, 2017, alleging disability 3 beginning on February 1, 2017. Transcript (“Tr.”) 202-05.2 Following a denial of 4 benefits, Plaintiff requested a hearing before an administrative law judge (“ALJ”) 5 and, on January 25, 2019, ALJ Susanne M. Cichanowicz determined that Plaintiff 6 was not disabled. Tr. 17-33. Plaintiff sought review of the ALJ’s decision with the 7 Appeals Council, however, review was denied on May 21, 2019. Tr. 1-6. This 8 appeal followed. 9 II. STANDARD OF REVIEW 10 The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record.

(g); Batson v. Comm’r Soc. 13 Sec. Admin.,

(9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales,

, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler,

(9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin,

(9th Cir. 2014) (quoting Batson,

1196); see also Thomas v. Barnhart,

(9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 26 2 A certified copy of the Administrative Record was filed on December 26, 2019. Electronic Case 27 Filing Number (“ECF No.”) 17. Citations will be made to the Administrative Record or 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3

(9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart,

, 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders,

(2009). 8 III. DISCUSSION 9 A. Establishing Disability Under The Act 10 To establish whether a claimant is disabled under the Act, it must be shown 11 that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel,

(9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25

(1987);

(a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett,

one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett,

. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB]. If the claimant is 7 not working in a [SGA], then the claimant’s case cannot be resolved at 8 step one and the evaluation proceeds to step two. See 20 C.F.R. 9 § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB]. If the claimant’s 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. See 20 C.F.R. 21 § 404.1520(d). 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB]. If the claimant cannot do any work he or she did in 25 the past, then the claimant’s case cannot be resolved at step four and 26 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 27 § 404.1520(e). 1 Step 5. Is the claimant able to do any other work? If not, then 2 the claimant is “disabled” and therefore entitled to [DIB]. See 20

(f)(1). If the claimant is able to do other work, then 4 the Commissioner must establish that there are a significant number of 5 jobs in the national economy that claimant can do. There are two ways 6 for the Commissioner to meet the burden of showing that there is other 7 work in “significant numbers” in the national economy that claimant 8 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 9 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 10 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 11 is “not disabled” and therefore not entitled to [DIB]. See

404.1520(f), 404.1562. If the Commissioner cannot meet this burden, 13 then the claimant is “disabled” and therefore entitled to [DIB]. See

14

. 15 B. Summary Of ALJ’s Findings 16 The ALJ determined that “[Plaintiff] meets the insured status requirements 17 of the . . . Act through September 30, 2022.” Tr. 19. The ALJ then found at step 18 one, that “[Plaintiff] has not engaged in [SGA] since February 1, 2017, the alleged 19 onset date (20 CFR 404.1571 et seq.).”

At step two, the ALJ found that 20 “[Plaintiff] has the following severe impairments: degenerative disc disease of the 21 lumbar spine and neurocognitive disorder (20 CFR 404.1520(c)).” Tr. 20. At step 22 three, the ALJ found that “[Plaintiff] does not have an impairment or combination 23 of impairments that meets or medically equals the severity of one of the listed 24 impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 25 404.1525 and 404. 1526).”

26 In preparation for step four, the ALJ found that Plaintiff has the residual 27 functional capacity (“RFC”) to: 1 perform light work as defined in 20 CFR 404.1567(b) except: [Plaintiff] 2 can lift and/or carry twenty pounds occasionally, ten pounds 3 frequently; [Plaintiff] can sit, stand or walk for six hours out of an eight- 4 hour workday; [Plaintiff] can occasionally climb ramps, stairs, ladders, 5 ropes and scaffolds; [Plaintiff] can frequently balance, stoop, kneel, 6 crouch and crawl; [Plaintiff] is limited [to] occasional exposure to 7 hazards, such as unprotected heights and dangerous moving 8 machinery; [Plaintiff] is limited to performing simple and routine tasks. 9 Tr. 23. The ALJ then found, at step four, that “[Plaintiff] is capable of performing 10 past relevant work [(“PRW”)] as a warehouse worker. This work does not require 11 the performance of work-related activities precluded by [Plaintiff’s] [RFC] (20 12 CFR 404. 1565).” Tr. 31. 13 The ALJ found that the occupation of warehouse worker as it is described in 14 the Dictionary of Occupational Titles (“DOT”) at DOT 922.687-058 “is a 15 medium, unskilled . . . occupation as generally performed pursuant to the DOT, but 16 actually performed as light work as described by Plaintiff.”

The ALJ 17 determined that “[Plaintiff] is able to perform this [PRW] as actually performed by 18 [Plaintiff], but not as generally performed in the national economy.” Tr. 32. 19 The ALJ added that “[a]lthough [Plaintiff] is capable of performing [PRW], 20 there are other jobs existing in the national economy that he is also able to 21 perform” and, “[t]herefore, the [ALJ] ma[de] the following alternative findings for 22 step five of the sequential evaluation process.”

23 In preparation for the alternative step five finding, the ALJ noted that 24 “[Plaintiff] was born on November 14, 1976 and was 40 years old, which is defined 25 as a younger individual age 18-49, on the alleged disability onset date (20 CFR 26 416.963).”

The ALJ observed that “[Plaintiff] has a limited education and is 27 able to communicate in English (20 CFR 404. 1564).”

The ALJ then added that 1 because using the Medical-Vocational Rules as a framework supports a finding that 2 [Plaintiff] is ‘not disabled,’ whether or not [Plaintiff] has transferable job skills[.]” 3

4 At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age, education, 5 work experience, and [RFC], [Plaintiff] is capable of making a successful 6 adjustment to other work that exists in significant numbers in the national 7 economy.” Tr. 33. Specifically, the ALJ found that Plaintiff could perform the 8 “light, unskilled” occupations of “Assembler, DOT 706.684-022” and “Packer, 9 920.687-166[.]”

The ALJ based his decision that Plaintiff could perform the 10 aforementioned occupations “on the testimony of the [VE]” from the 11 administrative hearing, after “determin[ing] that the [VE’s] testimony [wa]s 12 consistent with the information contained in the [DOT].”

13 The ALJ concluded that “[a] finding of not disabled is . . . appropriate under 14 the framework of the above-cited rule.”

(internal quotation marks omitted). 15 The ALJ, therefore, found that “[Plaintiff] has not been under a disability, as 16 defined in the . . . Act, from February 1, 2017, through [January 25, 2019], the date 17 of th[e] decision (20 CFR 404.1520(f)).”

18 C. Issues Presented 19 In this appeal, Plaintiff raises two issues, whether the ALJ properly 20 evaluated: (1) the treating psychiatrist’s opinions, and (2) the consultative 21 psychologist’s opinions. ECF No. 21, Joint Stip. at 4. Because the Court finds that 22 the second issue is dispositive here, it begins its analysis there and does not address 23 the review of the treating psychiatrist’s opinons. 24 D. Court’s Consideration Of Second Issue 25 1. Parties’ Arguments 26 Plaintiff argues that the ALJ’s partial rejection of Plaintiff’s consultative 27 psychologist Paul Fernandez, Ph.D.’s, opinion was not supported by substantial 1 regarding Dr. Fernandez’s opinions is somewhat confusing” and “[t]he ALJ also 2 did not identify which of the opinions were given partial weight as opposed to 3 others.”

. Plaintiff adds that “the ALJ stated that Dr. Fernandez’s 4 opinions are not consistent with the treatment records without specifying which of 5 the opinions were inconsistent with which aspects of the treatment records.”

6 Defendant responds by arguing that the ALJ’s finding was supported by 7 substantial evidence because “[t]he ALJ found that the severity of some of the 8 functional limitations Dr. Fernandez assessed were inconsistent with Plaintiff’s 9 treatment records as well as Dr. Fernandez’s own examination.”

at 21 (citing 10 Tr. 30). Defendant adds that “[e]ven if the ALJ had erred, however, which the 11 Commissioner does not concede, any error would be harmless” because Dr. 12 Fernandez’s opinion is fully consistent with the ALJ’s [RFC].”

. 13 Defendant asserts that “there were conflicting medical opinions in the record and 14 the ALJ properly evaluated the evidence and resolved the conflicts and ambiguities, 15 which is her role.”

(citation omitted). 16 2. Dr. Fernandez’s Opinion 17 On May 23, 2017, Dr. Fernandez completed a psychological examination of 18 Plaintiff. Tr. 520-28. Dr. Fernandez noted that his findings were based on a 19 “complete psychological evaluation[,]” a “mental status examination[,]” a 20 “Wechsler Adult Intelligence Scale – IV” test, a “Wechsler Memory Scale – IV” 21 test, a review of Plaintiff’s “many medical records[,]” and a review of the 22 “history” of Plaintiff’s diagnoses of anxiety disorder, depressive disorder, and 23 learning disorder. Tr. 520-27 (capitalization normalized). 24 Dr. Fernandez noted that Plaintiff “was driven to the examination by his 25 adult sister” who also “completed the intake form due to [Plaintiff’s] significant 26 reading and writing difficulties.” Tr. 520. Dr. Fernandez added that “[r]elated to 27 reading and writing issues, [Plaintiff] indicates that he received RSP special 1 school.” Tr. 521. Dr. Fernandez noted in the “present concerns and history of 2 present illness” portion of his opinion that: 3 [Plaintiff] had spinal meningitis at the age of two in 1978 which has 4 significantly impacted him cognitively. The spinal meningitis resulted 5 in brain damage and coma. There was nerve damage at the left side of 6 the body. [Plaintiff] has little or no feeling on his left side with left side 7 weakness ([Plaintiff] demonstrated to this examiner difficulties picking 8 up a pencil, holding a pencil, or putting any pressure on it). [Plaintiff] 9 also has sensory losses and then a learning disability. There are some 10 suspected brain lesions in the right hemisphere. According to the 11 information from the form, the right cerebral hemisphere was found to 12 be diffusely smaller compared to the left cerebral hemisphere with 13 thickening to the right calvarium. The diagnosis by doctors were right 14 sided hematrophy most notably involving the right post central gyros 15 and parietal-occipital lobes. There was thickening of the ipsilateral 16 right calvarium. There was found to be Rasmussen’s encephalitis. 17 Tr. 521. 18 Dr. Fernandez observed that Plaintiff “sees a psychologist weekly and a 19 psychiatrist monthly” for his mental impairments and that his “family psychiatric 20 history is significant for cerebral atrophy, cognitive disorder, chronic cerebral 21 infraction, meningitis, hearing disorder, and focal sensory loss.”

Dr. 22 Fernandez then discussed Plaintiff’s medical and educational records that 23 included, in pertinent part: 24  a letter from Plaintiff’s treating psychologist “indicating that based on 25 the physical and mental impairment, [Plaintiff] was no longer able to work 26 as of March 12, 2017”; 27  a “brain scan report” noting “that [Plaintiff’s] right cerebral hemisphere 1 impression of Plaintiff’s “right cerebral hemisphere with diffused right 2 sided hematrophy[,]” and a “[d]ifferential diagnosis . . . [of] prior 3 Rasmussen’s encephalitis”; 4  a November 2016 note from Plaintiff’s treating psychologist indicating 5 that Plaintiff “had cerebral atrophy, cognitive disorder, viral meningitis 6 when he was two years old, cerebral infraction-chronic encephalopathy, 7 history of bacterial meningitis, hearing disorder and sensory loss”; 8  a “Santiago Canyon College Learning Disability Assessment Profile” 9 indicating that Plaintiff “was tested and he was found to have low average 10 scores in sight vocabulary, [and] reading vocabulary[,]” “low” math 11 computation skills, and “borderline” math application skills; 12  Plaintiff’s high school report cards indicating that Plaintiff “had 13 fluctuating scores with a number of Fs, some Ds but low attention 14 scores”; 15  “additional records” provided by the Social Security Administration 16 indicating that Plaintiff “had developmental disability”; 17  A “Clinical Impression from UC Irvine Health dated September 29, 18 2016” indicating that Plaintiff “had cerebral atrophy of the right 19 hemisphere due to childhood infection, cognitive disorder, static 20 encephalopathy, and history of bacterial meningitis in childhood, history 21 of learning disorder and old focal sensory loss of the left side due to lesion 22 of right side”; and 23  A “neurological report” by a “medical specialist indicat[ing] that his 24 testes were consistent with previous education level and a history of 25 learning disability”; 26 Tr. 522-23 (capitalization normalized). 27 Dr. Fernandez also noted that Plaintiff “cannot count change[,]” that 1 “demonstrate[d] some difficulties with cognition and emotional maturation[,]” 2 that Plaintiff’s “left hand shook noticeably when he was demonstrating that he had 3 difficulties with his left side[,]” and that Plaintiff “also had tremors on his right 4 hand and arm when he was working during the coding task.” Tr. 524. Dr. 5 Fernandez indicated that Plaintiff was “respectful, cooperative, friendly, tense, 6 anxious, fearful, and pleasant in the style of presentation[,]” that Plaintiff 7 “cooperated with psychometric testing and put forth adequate effort[,]” and that 8 Plaintiff’s “[r]esponse time and work pace were below average.” Tr. 524-25. 9 Dr. Fernandez indicated, in pertinent part, that “slight confusion was 10 evident[,]” Plaintiff “was able to recall 3 out of 3 objects (ear, balloon, flag) in an 11 immediate mode” but only “1 out of 3 remotely.” Tr. 525. Dr. Fernandez added 12 that Plaintiff “could not perform serial seven’s [sic]” and “[o]verall, [Plaintiff’s] 13 memory was moderately impaired.”

Dr. Fernandez also indicated that 14 Plaintiff’s “attention and concentration levels were mildly impaired” as evidenced 15 by Plaintiff’s inability to “state the months in a backward mode[,]” that Plaintiff 16 had an “inadequate attention span for answering interview questions and following 17 test instructions[,]” and that Plaintiff displayed an inability “to sustain 18 concentration and work without distraction” during “performance tasks.”

19 Dr. Fernandez noted that Plaintiff tested in the following percentile range as 20 evidenced by the Wechsler Adult Intelligence Scale test: 21  Verbal comprehension: 63 22  Perceptual reasoning: 21 23  Working memory: 37 24  Processing speed: 14 25  Full scale IQ: 30 26 Tr. 526. 27 Dr. Fernandez added that Plaintiff tested in the following percentile range as 1  Auditory memory: 1 2  Visual memory: 2 3  Visual working memory: 2 4

5 Dr. Fernandez found that “[t]he test results appear to be a valid estimate of 6 [Plaintiff’s] functional level at this time. [Plaintiff] was able to focus and 7 concentrate on the test items and appeared to put forth effort in responding to the 8 questions. Rapport was adequate for test purposes between this examiner and 9 [Plaintiff].” Tr. 527. 10 Dr. Fernandez opined that Plaintiff had “a moderate difficulty to 11 understand, remember, and carry out detailed instructions” and “[f]rom a 12 cognitive standpoint, given the total[it]y of issues, [Plaintiff] has a moderate 13 difficulty to maintain attendance and complete an eight-hour workday in a regular 14 workplace setting.” Tr. 527-28. Dr. Fernandez added that Plaintiff “was socially 15 mildly inappropriate with the examiner given some of his confused statements[,]” 16 he would have “a mild difficulty to interact appropriately with supervisors, 17 coworkers and peers,” “to deal with the usual stresses of a competitive workplace 18 setting[,] and [in] handl[ing] routine work changes.” Tr. 528. Dr. Fernandez 19 added that Plaintiff “could not perform a change counting problem” and “does not 20 manage funds on his own behalf due to significant math problems.”

21 3. ALJ’s Consideration Of Dr. Fernandez’s Opinion 22 The ALJ gave “partial weight to the opinion of consultative examiner, Dr. 23 Fernandez” because: 24 The severity of some of the functional limitations assessed by Dr. 25 Fernandez are inconsistent with [Plaintiff’s] treatment records as well 26 as Dr. Fernandez’s findings that all of [Plaintiff’s] impairments were 27 diagnosed by history. Although a mental status examination revealed 1 [Plaintiff] had adequate eye contact, cooperative behavior, adequate 2 speech, a cheerful and positive mood, appropriate affect, no signs of 3 perceptual disturbances, only mildly impaired attention and 4 concentration, not impaired insight and judgment, not impaired fund of 5 knowledge, and a Full Scale IQ score in the average range. 6 Tr. 30 (citing Tr. 520-28). 7 4. Standard To Review ALJ’s Analysis Of Medical Opinions 8 There are three types of medical opinions in Social Security cases: those 9 from treating physicians, examining physicians, and non-examining physicians. 10 Valentine v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2009) (citation 11 omitted). “The medical opinion of a claimant’s treating physician is given 12 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical 13 and laboratory diagnostic techniques and is not inconsistent with the other 14 substantial evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871

, 675 (9th Cir. 2017) (quoting

(c)(2)). “When a 16 treating physician’s opinion is not controlling, it is weighted according to factors 17 such as the length of the treatment relationship and the frequency of examination, 18 the nature and extent of the treatment relationship, supportability, consistency 19 with the record, and specialization of the physician.”

(citing 20 C.F.R. 20 § 404.1527(c)(2)–(6)). 21 “‘To reject [the] uncontradicted opinion of a treating or examining doctor, 22 an ALJ must state clear and convincing reasons that are supported by substantial 23 evidence.’” Id. (quoting Ryan v. Comm’r Soc. Sec. Admin.,

, 1198 24 (9th Cir. 2008)). “This is not an easy requirement to meet: ‘the clear and 25 convincing standard is the most demanding required in Social Security cases.’” 26 Garrison v. Colvin,

(9th Cir. 2014) (quoting Moore v. Comm’r 27 Soc. Sec. Admin.,

(9th Cir. 2002)). 1 “‘If a treating or examining doctor’s opinion is contradicted by another 2 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 3 reasons that are supported by substantial evidence.’” Trevizo, 871 F.3d at 675 4 (quoting Ryan,

). “This is so because, even when contradicted, a 5 treating or examining physician’s opinion is still owed deference and will often be 6 ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 7 weight.’” Garrison,

(quoting Orn v. Astrue,

, 633 8 (9th Cir. 2007)). “‘The ALJ can meet this burden by setting out a detailed and 9 thorough summary of the facts and conflicting clinical evidence, stating his 10 interpretation thereof, and making findings.’” Trevizo, 871 F.3d at 675 (quoting 11 Magallanes v. Bowen,

(9th Cir. 1989)). 12 5. ALJ’s Decision Is Not Supported By Substantial Evidence 13 Here, as an initial matter, the ALJ discussed the contradicting opinions of 14 the State Agency consulting doctors in her analysis of Plaintiff’s medical evidence. 15 Thus, the specific and legitimate standard applies here.

The Court finds, 16 however, that the ALJ did not meet this standard when rejecting Dr. Fernandez’s 17 opinion for the following reasons. 18 First, the ALJ’s conclusory statement that “some of the functional 19 limitations” assessed by Dr. Fernandez were “inconsistent with [Plaintiff’s] 20 treatment records” generally, without pointing to specific examples of such 21 evidence and providing an explanation or interpretation of how that evidence was 22 inconsistent with Dr. Fernandez’s opinion, does not amount to a specific and 23 legitimate reason for discrediting Dr. Fernandez’s opinion. Tr. 30; see Garrison, 24

(“The ALJ must do more than state conclusions. [Sh]e must set 25 forth h[er] own interpretations and explain why they, rather than the doctor’s, are 26 correct.”); see also

(“[A]n ALJ errs when [s]he rejects a medical 27 opinion or assigns it little weight while doing nothing more than ignoring it, 1 criticizing it with boilerplate language that fails to offer a substantive basis for h[er] 2 conclusion.”) (citing Nguyen v. Chater,

(9th Cir. 1996)). 3 Second, the ALJ’s reason that “[t]he severity of some of the functional 4 limitations assessed by Dr. Fernandez are inconsistent with . . . Dr. Fernandez’s 5 findings that all of [Plaintiff’s] impairments were diagnosed by history” is not a 6 specific and legitimate reason supported by the record for rejecting Dr. 7 Fernandez’s opinion. Tr. 30. Again, it is unclear which functional limitations are 8 encompassed by the ALJ’s description of “some of the functional limitations 9 assessed by Dr. Fernandez” and it is similarly unclear how the severity of these 10 unspecified limitations were contradicted by Dr. Fernandez diagnosing them “by 11 history.” See

12 Moreover, even if the ALJ had explained how the diagnostic method utilized 13 by Dr. Fernandez—“history”—undercut the validity of the severity of the 14 limitations Dr. Fernandez endorsed, Dr. Fernandez’s opinion reveals that Dr. 15 Fernandez did not endorse Plaintiff’s functional limitations by reviewing only 16 Plaintiff’s diagnostic history as the ALJ asserts. See

Rather, as discussed above, 17 Dr. Fernandez supported his findings with complete psychological and mental 18 status evaluations, Wechsler Adult Intelligence Scale and Memory Scale tests, a 19 review of Plaintiff’s “many” medical records, and a review of the “history” of 20 Plaintiff’s diagnoses of anxiety disorder, depressive disorder, and learning disorder. 21 Tr. 520-27. Further, Plaintiff’s test results from the Wechsler tests cited by Dr. 22 Fernandez in support of his opinion reveals that Plaintiff placed in the first and 23 second percentile on all three of the Wechsler Memory Scale test categories and in 24 the fourteenth to thirty-seventh percentile in four of the five Wechsler Adult 25 Intelligence Scale test categories. Tr. 526. Thus, Dr. Fernandez’s findings were 26 well supported by objective medical evidence in addition to Plaintiff’s diagnostic 27 history. 1 Finally, the ALJ’s last reason for rejecting Dr. Fernandez’s opinion—that 2 Plaintiff had “adequate eye contact, cooperative behavior, adequate speech, a 3 cheerful and positive mood, appropriate affect, no signs of perceptual disturbances, 4 only mildly impaired attention and concentration, not impaired insight and 5 judgment, not impaired fund of knowledge, and a Full Scale IQ score in the average 6 range”—fails because this observation selectively relies only on evidence that 7 supports a rejection of Dr. Fernandez’s opinion, while ignoring other evidence that 8 supports the doctor’s opinion. See Holohan v. Massanari,

, 1207-08 9 (9th Cir. 2001) (holding an ALJ cannot selectively rely on some entries in plaintiff’s 10 records while ignoring others). 11 For example, although Dr. Fernandez noted that Plaintiff displayed 12 “adequate eye contact, cooperative behavior, adequate speech, a cheerful and 13 positive mood, [and] appropriate affect,” as the ALJ noted, Dr. Fernandez also 14 observed that, at times, Plaintiff was “tense, anxious, [and] fearful[,]” that 15 Plaintiff’s “left hand shook noticeably when he was demonstrating that he had 16 difficulties with his left side[,]” and that Plaintiff “also had tremors on his right 17 hand and arm when he was working during the coding task.” Tr. 30, 524-25. 18 Moreover, the ALJ’s observation that Plaintiff had “no signs of perceptual 19 disturbances, only mildly impaired attention and concentration, not impaired 20 insight and judgment, [and] not impaired fund of knowledge,” ignores notations 21 from Dr. Fernandez’s examination report that “slight confusion was evident[,]” 22 that Plaintiff was able to recall only “1 out of 3 [items] remotely[,]” that Plaintiff 23 “could not perform serial seven’s [sic]” that Plaintiff was unable to “state the 24 months in a backward mode[,]” that Plaintiff had an “inadequate attention span for 25 answering interview questions and following test instructions[,]” that Plaintiff 26 displayed an inability “to sustain concentration and work without distraction” 27 during “performance tasks[,]” that Plaintiff’s “[r]esponse time and work pace 1 | were below average[,|” and that Plaintiff’s behavior “demonstrate[d] some 2 | difficulties with cognition and emotional maturation.” Tr. 30, 524-25. 3 Finally, the ALJ’s finding that Plaintiff “[had] a Full Scale IQ score in the 4 | average range” ignores evidence that Plaintiff’s IQ score placed Plaintiff in only the 5 | thirtieth percentile. Tr. 30, 526. The ALJ’s observation also ignores Plaintiff’s 6 | other test scores that place him in only the first and second percentile for auditory 7 | memory, visual memory, and visual working memory, and that place Plaintiff in 8 | only the fourteenth and twenty-first percentile for perceptual reasoning and 9 | processing speed. Tr. 30, 526. Thus, the ALJ ignored extensive evidence in Dr. 10 | Fernandez’s examination report that supported Dr. Fernandez’s opinion. 11 Accordingly, because the ALJ’s reasons for rejecting Dr. Fernandez’s 12 | opinion were not specific and legitimate or supported by substantial evidence in the 13 | record, the Court finds that remand for further proceedings is appropriate here so 14 | that that ALJ may reconsider Dr. Fernandez’s opinion and the effect it has on 15 | Plaintiffs disability claim, once properly assessed. 16 IV. CONCLUSION 17 Because the Commissioner’s decision is not supported by substantial 18 | evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 19 | REVERSED and this case is REMANDED for further administrative proceedings 20 | under sentence four of

(g). See Garrison,

21 | (holding that under sentence four of

(g), “[t]he court shall have 22 | power to enter ...a judgment affirming, modifying, or reversing the decision of the 23 | Commissioner ..., with or without remanding the cause for a rehearing.”) 24 | (citation and internal quotation marks omitted). 25 IT IS SO ORDERED. °° | DATED: 6/3/2020 Nts en 27 HONORABLE SHASHI H. KEWALRAMANI 28 United States Magistrate Judge