1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 COREY A. W.,1 Case No. SA CV 19-02286 RAO 12 Plaintiff, 13 v. MEMORANDUM OPINION AND 14 ORDER ANDREW M. SAUL, Commissioner of 15 Social Security, 16 Defendant. 17 I. INTRODUCTION 18 Plaintiff Corey W. (“Plaintiff”) challenges the denial by the Commissioner of 19 Social Security (“Defendant”) of her application for supplemental security income 20 (“SSI”). She contends that the Administrative Law Judge (“ALJ”) erred when he 21 determined that her anxiety disorder would impose essentially no functional 22 limitations on her ability to work and when he rejected her subjective symptom 23 testimony. For the reasons stated below, the decision of the Commissioner is 24 REVERSED, and the matter is REMANDED. 25 \\ 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 II. SUMMARY OF PROCEEDINGS 2 On November 9, 2015, Plaintiff constructively filed a Title XVI application 3 for SSI, alleging that she had been disabled since January 1, 1998. (Administrative 4 Record (“AR”) 135-43.) Her application was denied initially and upon 5 reconsideration, and she requested and was granted a hearing before an ALJ. (AR 6 45-69, 81-95.) Following a hearing on October 18, 2018, at which Plaintiff appeared 7 with counsel, the ALJ found that Plaintiff had not been disabled at any time from her 8 alleged onset date through November 9, 2018, the date of decision. (AR 12-44.) The 9 ALJ’s decision became the Commissioner’s final decision when the Appeals Council 10 denied Plaintiff’s request for review. (AR 1-6.) This action followed. 11 III. DISCUSSION 12 Plaintiff contends that the ALJ erred at step four of the sequential disability 13 evaluation when he (1) rejected the opinions of the examining and reviewing 14 psychologists that Plaintiff’s social anxiety would limit her ability to interact with 15 others; and (2) discounted Plaintiff’s testimony regarding the limitations imposed by 16 her anxiety. (JS at 4-11, 15-20.) 17 The ALJ followed the five-step sequential evaluation process to assess whether 18 Plaintiff was disabled under the Social Security Act. See Lester v. Chater,

821, 828 n.5 (9th Cir. 1995). Although he found that Plaintiff’s anxiety was a severe 20 impairment, he concluded that it did not meet or equal any impairment listed in the 21 regulations that would by itself establish disability. (AR 17.) Before proceeding to 22 step four, the ALJ found that Plaintiff had the residual functional capacity to perform 23 “a full range of work at all exertional levels” with one non-exertional limitation, 24 namely, that she would “likely miss work or leave early from work at least one day 25 a month due to separation anxiety from” her mother. (AR 19.) In reaching this 26 finding, the ALJ rejected Plaintiff’s testimony that she experienced debilitating panic 27 attacks, could not go places alone, had difficulty interacting with non-family 28 members, found it hard to follow instructions in social situations, and did not handle 1 stress well. (AR 19-20.) At step five, the ALJ adopted the testimony of a vocational 2 expert, who opined that an individual with Plaintiff’s age, lack of work experience, 3 and residual functional capacity would be able to perform work existing in the 4 national economy. (AR 24.) Accordingly, the ALJ found that Plaintiff was not 5 disabled. (AR 24-25.) 6 A. The Examining and Reviewing Psychologists’ Opinions 7 Plaintiff contends that the ALJ erred when he rejected the limitations found by 8 the examining and reviewing psychologists. (JS at 4-11.) 9 The ALJ is responsible for assessing a claimant’s RFC “based on all of the 10 relevant medical and other evidence.”

(a)(3), 404.1546(c); see 11 Robbins v. Soc. Sec. Admin.,

(9th Cir. 2006) (citing SSR 96-8p, 12

, at *5 (July 2, 1996)). In doing so, the ALJ may consider any 13 statements provided by medical sources, including statements that are not based on 14 formal medical examinations. See

(a), 404.1545(a)(3). An 15 ALJ’s determination of a claimant’s RFC must be affirmed “if the ALJ applied the 16 proper legal standard and his decision is supported by substantial evidence.” Bayliss 17 v. Barnhart,

(9th Cir. 2005); accord Morgan v. Comm’r of Soc. 18 Sec. Admin.,

(9th Cir. 1999). 19 In February 2016, psychologist Dr. Jessica Durr evaluated Plaintiff. (AR 278- 20 83.) Dr. Durr had no medical records to review, but reported Plaintiff’s own account 21 that she had suffered from anxiety for most of her life, could only urinate when at 22 home, had been seen by a psychiatrist for approval to start hormone therapy (and was 23 taking Estridiol, an estrogen hormone), and had “too much anxiety” to take a driver’s 24 test. (AR 279, 280.) Upon examination, Plaintiff was oriented, her thoughts were 25 organized, and her mood appropriate although her affect was labile. (AR 280.) 26 Notably, Plaintiff was “extremely upset and tearful” when she was told her mother 27 had to leave the room during testing but with encouragement was able to complete 28 the testing. (Id.) Plaintiff “did well” on tests that measured her memory, 1 concentration/attention span, insight and judgment, and fund of knowledge. (AR 2 281-82.) Dr. Durr concluded that Plaintiff would have the ability to understand and 3 carry out simplistic and detailed instructions, make simplistic work-related decisions, 4 and interact appropriately with supervisors, coworkers, and peers. (AR 282-83.) Dr. 5 Durr cautioned that the anxiety that Plaintiff suffered when separated from her 6 mother would cause her to “call in, miss shifts, or try to leave early,” which, in the 7 doctor’s view, would create difficulty over time in the job market. (AR 283.) The 8 ALJ gave “great weight” to Dr. Durr’s opinion, noting that her assessment of 9 Plaintiff’s functional limitations was “essentially the same” as the ALJ’s. (AR 23.) 10 Plaintiff contends nevertheless that the ALJ erred by not accepting additional 11 limitations implied by Dr. Durr’s opinion. In Plaintiff’s view, the ALJ’s 12 determination that she would miss work “at least one day a month” due to 13 separation anxiety conflicts with Dr. Durr’s finding that Plaintiff would call in, miss 14 shifts, or try to leave early because of her separation anxiety. Plaintiff argues that, 15 clearly, she would experience anxiety more than once a month because her mother 16 could not be at work with her. (JS at 6-7.) 17 The Court would agree that Plaintiff’s reading is more plausible, particularly 18 considering Dr. Durr’s subsequent warning that Plaintiff’s absenteeism would 19 ultimately create difficulty for her at work. Nevertheless, the Court cannot find that 20 the ALJ’s interpretation was unreasonable. The ALJ was permitted to take into 21 account the fact that Plaintiff appeared to calm down and was able to finish the tests 22 given by Dr. Durr, as well as Dr. Durr’s opinion that Plaintiff would be able to 23 interact appropriately with other people in the workplace. As such, the Court must 24 defer to the ALJ’s decision regarding the functional scope of Dr. Durr’s opinion. 25 See Ryan v. Comm’r of Soc. Sec.,

(9th Cir. 2008) (“‘Where 26 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision 27 should be upheld.”) (citing Burch v. Barnhart,

(9th Cir. 2005)). 28 \\ 1 Plaintiff also contends that the ALJ erred in rejecting the opinions of the state 2 agency reviewing psychologists. For the following reasons, the Court agrees. 3 In March 2016, Dr. Brady Dalton reviewed Plaintiff’s medical records, 4 including Dr. Durr’s evaluation, and concluded that Plaintiff would “work best in 5 low-stress, structured environments with predictable work tasks and with minimal 6 social contacts with others.” (AR 54.) After Plaintiff sought reconsideration, in 7 July 2016, Dr. McWilliams reviewed the updated medical record and opined that 8 Plaintiff would be moderately limited in most aspects of social interaction and 9 concluded that she could “deal with the public and get along with people at work if 10 the contact was brief.” (AR 66.) 11 The ALJ gave “some weight” to the reviewing opinions but declined to adopt 12 the functional limitations assessed therein on the ground that they were inconsistent 13 with the record as a whole. (AR 23.) By way of explanation, the ALJ pointed out 14 that the reviewing doctors’ conclusion that Plaintiff would be moderately limited in 15 her ability to interact with the public and accept instruction was in conflict with Dr. 16 Durr’s report that Plaintiff exhibited cooperative behavior and successfully 17 completed testing in her mother’s absence. (Id.) 18 The ALJ’s reasoning for rejecting the reviewing opinions is not supported by 19 substantial evidence. The limitations found by Drs. Dalton and McWilliams were 20 based on their review of all of Plaintiff’s medical records through July 2016. 21 Although the reviewing doctors noted Dr. Durr’s February 2016 evaluation (AR 47, 22 49, 51, 53, 60), they also relied on subsequent treatment notes that Dr. Durr had not 23 seen, which established that Plaintiff continued to experience panic attacks related 24 to her inability to use public restrooms and had been prescribed citalopram and 25 alprazolam. (AR 62-63.) Because the ALJ failed to address record evidence 26 that undermined his residual functional capacity determination, his decision was in 27 28 1 error. See Reddick v. Chater,

(9th Cir. 1998) (reversing 2 where ALJ “developed his evidentiary basis by not fully accounting for the context 3 of materials or all parts of the testimony and reports”). Accordingly, remand is 4 warranted on this issue. 5 B. Plaintiff’s Subjective Symptom Testimony 6 Plaintiff contends that the ALJ erred when he rejected her testimony that she 7 could not work due to her anxiety. (JS at 15-20.) For the following reasons, the 8 Court agrees. 9 Where, as here, the claimant has presented evidence of an underlying 10 impairment and the ALJ did not make a finding of malingering (see AR 19), the ALJ 11 must “evaluate the intensity and persistence of [the] individual’s symptoms . . . and 12 determine the extent to which [those] symptoms limit [his] . . . ability to perform 13 work-related activities.” Soc. Sec. Ruling (“SSR”) 16-3p,

, at *4. 14 In assessing the intensity and persistence of symptoms, the ALJ “examine[s] the 15 entire case record, including the objective medical evidence; an individual’s 16 statements . . . ; statements and other information provided by medical sources and 17 other persons; and any other relevant evidence in the individual’s case record.”

18 at *4. The ALJ must provide specific, clear and convincing reasons for rejecting the 19 claimant’s statements. Trevizo v. Berryhill,

(9th Cir. 2017) 20 (citation omitted). The ALJ must identify what testimony was found not credible and 21 explain what evidence undermines that testimony. Holohan v. Massanari,

(9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at 23 834. 24 Plaintiff testified that she had suffered from anxiety and panic attacks, even 25 while at home, for six or seven years. (AR 33.) She testified that she had initially

26 2 More generally, the Court is not convinced by the ALJ’s reasoning that Plaintiff’s 27 ability to cooperate with a psychologist, while knowing, one assumes, that her mother is waiting close by, is evidence that she can interact appropriately on a daily basis 28 with strangers. 1 done poorly at school due to bullying and other reasons but later did well when she 2 was in an independent study program. (AR 33-34.) Despite her academic ability, 3 Plaintiff testified that she did not apply to college because she “just can’t.” (AR 34.) 4 After the ALJ informed her that she had “a brain between those ears” and was “an 5 attractive woman,” Plaintiff testified that she was having a panic attack right at that 6 moment. (AR 35.) In the written reports that she submitted with her SSI application, 7 Plaintiff stated that she “rarely” left the house due to social anxiety, could not go out 8 in public for more than two hours at a time, and spent her time sitting and talking 9 with her family or playing video games on the Internet. (AR 158, 160, 161.) 10 In his decision, the ALJ found that Plaintiff’s testimony would not impose any 11 additional functional limitations beyond missing work once per month. (AR 19-21.) 12 The ALJ rejected Plaintiff’s account of her limitations on two grounds. Neither of 13 them withstands scrutiny. 14 First, the ALJ found that “some of the physical and mental abilities and social 15 interactions required in order to perform [her reported daily activities] are the same 16 as those necessary for obtaining and maintaining employment and are inconsistent 17 with the presence of a debilitating condition.” (AR 20.) In that regard, the ALJ 18 noted that Plaintiff was able to groom herself, prepare simple meals, spend time with 19 family, and play video games online. (Id.) This was not a convincing reason for 20 rejecting Plaintiff’s testimony. 21 That Plaintiff could perform these, very minimal, activities on her own 22 schedule and, more importantly, in her own house with her own family, does not 23 establish that she could work eight hours a day, five days a week on someone else’s 24 schedule, in a different location, and with unfamiliar people. The crux of Plaintiff’s 25 claim for disability is that she suffers from social anxiety. The ALJ simply failed to 26 address how her home activities would transfer to a workplace setting. See Orn v. 27 Astrue,

(9th Cir. 2007) (“The ALJ must make specific findings 28 relating to the daily activities and their transferability to conclude that a claimant’s 1 daily activities warrant an adverse credibility determination.”) (internal quotation 2 marks omitted). 3 Second, the ALJ found that Plaintiff had not received the type of medical 4 treatment one would expect for a totally disabled individual. (AR 20.) The Court 5 construes this to mean that the ALJ believed Plaintiff’s treatment was conservative. 6 Generally speaking, this is a legitimate reason for discounting a claimant’s 7 credibility. See Parra v. Astrue,

(9th Cir. 2007) (holding ALJ 8 properly found treatment with over-the-counter pain medication was reason to 9 discount claimant’s testimony). The record, however, does not support the ALJ’s 10 reasoning. 11 The only mention the ALJ made in his decision about Plaintiff’s course of 12 treatment was a citation to a December 2016 visit note in which she reported “doing 13 well” on Citalopram. (AR 22.) The ALJ did not explain in what way Plaintiff’s 14 prescribed use of Citalopram constituted conservative treatment for an anxiety 15 disorder. Furthermore, the ALJ did not address the record evidence showing that 16 Plaintiff also at times had been prescribed Valium, Xanax, Ativan, Terazosin, and 17 Propanolol for anxiety. (AR 433, 441-44, 511.) Additionally, though the record 18 shows that Plaintiff reported doing well at times, at other times she experienced 19 vomiting during a panic attack and requested an increase in her medication dosage 20 due to an explained increase in her anxiety “for the past 5 days.” (AR 426, 489.) 21 Because the ALJ failed to provide specific, clear, and convincing reasons for 22 discounting Plaintiff’s subjective limitation testimony, remand is warranted on this 23 issue. 24 C. Remand for Further Administrative Proceedings 25 Plaintiff seeks an award of benefits. (JS at 25.) Because further administrative 26 review could remedy the ALJ’s errors, remand for further proceedings, rather than 27 an award of benefits, is warranted here. See Brown-Hunter v. Colvin,

, 28 495 (9th Cir. 2015) (remanding for an award of benefits is appropriate only in rare ] || circumstances). In particular, when, as here, “the record as a whole creates □ □ . doubt 2 || as to whether the claimant is, in fact, disabled within the meaning of the Social 3 || Security Act,” the Court retains flexibility to remand for further proceedings.

4 || (citation omitted). On remand, the ALJ should reconsider Plaintiff's residual 5 || functional capacity in light of the Court’s decision. The ALJ is free to obtain further 6 || evidence, included the use of a testifying doctor or a reviewing doctor, supplemental 7 || reports from treating, examining, and reviewing doctors, or any other mechanism that g || the ALJ deems appropriate. 9 || IV. CONCLUSION 10 IT IS ORDERED that Judgment shall be entered REVERSING the decision of 11 || the Commissioner denying benefits and REMANDING the matter for further 12 || proceedings consistent with this Order. 13 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 14 || Order and the Judgment on counsel for both parties. Is Rapetls, 4, 16 || DATED: September 30, 2020 SS V7 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 18 19 NOTICE 90 || THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 21 22 23 24 25 26 27 28