1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MIRIAM D.,1 Case No. 22-cv-04685-RMI

9 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. Nos. 11, 20 12 Defendant.

13 INTRODUCTION 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 15 application for disability employment benefits under Title II of the Social Security Act. See 16 Admin. Rec. (“AR”) at 15-25.2 Following the denial of a prior application on March 29, 2019, 17 Plaintiff filed a second application for Title II benefits on June 4, 2019. Id. at 63-80, 251-54.3 18 Plaintiff’s second application (the subject of the present dispute) was denied by an ALJ on August 19 5, 2021, as was Plaintiff’s request for review of that decision by the Appeals Council. Id. at 1-3, 20 15-25. As such, the ALJ’s decision is the “final decision” of the Commissioner of Social Security, 21 which this court may review. See

(g), 1383(c)(3). Both Parties have consented to 22 the jurisdiction of a magistrate judge (dkts. 7, 8), and both Parties have moved for summary 23 judgment (dkts. 11, 20). Plaintiff has requested that this court remand her case for a calculation of 24 25 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States, Plaintiff’s name is partially redacted. 26 2 The Administrative Record (“AR”), which is independently paginated, has been filed in fifteen attachments to 27 Docket Entry #10. See (dkts. 10-1 through 10-15). 1 benefits. Pl.’s Mot. (dkt. 11) at 23. Defendant, acknowledging that the ALJ’s decision was not 2 supported by substantial evidence, requests that this court remand the case for further 3 administrative proceedings. Def.’s Mot. (dkt. 20) at 2. For the reasons stated below, Defendant’s 4 Motion is GRANTED, Plaintiff’s Motion is DENIED, and the case is remanded for further 5 proceedings consistent with this Order. 6 LEGAL STANDARDS 7 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 8 conclusive.”

(g). A district court has a limited scope of review and can only set 9 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 10 error. Flaten v. Sec’y of Health & Human Servs.,

(9th Cir. 1995). The phrase 11 “substantial evidence” appears throughout administrative law and directs courts in their review of 12 factual findings at the agency level. See Biestek v. Berryhill,

(2019). 13 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 14 adequate to support a conclusion.”

at 1154 (quoting Consol. Edison Co. v. NRLB,

197, 229 (1938)); see also Sandgathe v. Chater,

(9th Cir. 1997). “In 16 determining whether the Commissioner’s findings are supported by substantial evidence,” a 17 district court must review the administrative record as a whole, considering “both the evidence 18 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 19 Chater,

(9th Cir. 1998). The Commissioner’s conclusion is upheld where 20 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart,

, 21 679 (9th Cir. 2005). 22 SUMMARY OF THE RELEVANT EVIDENCE 23 Plaintiff raises two claims, the first of which assigns error to the ALJ’s evaluation of 24 Plaintiff’s pain and symptom testimony, and the second of which assigns error to the ALJ’s 25 evaluation of certain medical opinions. Pl.’s Mot. (dkt. 11) at 14-22. Accordingly, the following is 26 a summary of the evidence relevant to these claims. 27 Plaintiff’s Pain and Symptom Testimony 1 transport nurse for more than ten years before she developed hypertensive crisis, heart palpations, 2 and sleeping difficulties. AR at 39. After consultation with her primary care physician, Plaintiff 3 took a short break from her job.

Upon returning to work, Plaintiff encountered a situation in 4 which a young boy with severe autism had apparently been abandoned by his parents.

While 5 transporting the boy, Plaintiff “felt a break happen within” her and proceeded to get into an 6 argument with a new EMT “simply because she was talking.” Id. at 39-40. Plaintiff was taken off 7 work the next day and has not worked as a critical care nurse since. Id. at 40. This episode, 8 Plaintiff testified, was just one of many similar experiences during her time in this job. Id. 9 Following her job as a critical care nurse, Plaintiff attempted a brief stint as an infusion 10 nurse. Plaintiff was “incredibly nervous” and “very stressed” that something was going to happen 11 to her patients, however, which resulted in the patients feeling uncomfortable. Id. at 41. Plaintiff 12 was fired from this job after a few months, even though the company was owned by a friend 13 whom Plaintiff had met through nursing. Id. 14 Plaintiff symptoms apparently worsened after the prior finding of non-disability in March 15 of 2019. Id. at 43. Her depression is now “out of control,” and sometimes she will not shower for 16 several days because she does not realize how many days have gone by. Id. Plaintiff feels as 17 though it is “difficult to be motivated” and to “get out of a negative state of mind and negative 18 mental state.” Id. at 44. While medications have been helping, these come with certain side 19 effects—such as migraines that occur several times per week and can last several days. Id. at 45. 20 In April of 2019, Plaintiff took a trip to El Salvador to visit family. Id. at 45. In late-2019 21 or early-2020, Plaintiff attended kickboxing classes for a brief period, but lately has been unable to 22 engage in exercise and typically spends most of the day sitting or in bed. Id. at 45-46. The last 23 time Plaintiff went for a walk was roughly three months ago, and she has difficulties shopping 24 alone and only goes about one to two times per month (usually accompanied by her son). Id. at 47. 25 Plaintiff is not part of any social groups and does not engage in social activities. Id. She also gets 26 panic attacks when she drives, likely due to the automobile-related trauma that she encountered as 27 a critical care nurse. Id. at 48. Finally, Plaintiff provided that her recent separation from her 1 Medical Opinions 2 Dr. Gupta 3 Dr. Gupta saw Plaintiff for a consultative examination at the request of the Social Security 4 Administration. Id. at 561. After a well-documented mental status exam and clinical interview, Dr. 5 Gupta’s diagnostic impressions were: Major Depressive Disorder; Post-Traumatic Stress Disorder 6 (“PTSD”); and, Generalized Anxiety Disorder. Id. at 565. As to Plaintiff’s ability to perform in the 7 workplace, Dr. Gupta found that Plaintiff would have severe limitations in her ability to do the 8 following: interact with coworkers and the public; maintain regular attendance in the workplace 9 and complete a normal workday/workweek without interruption; and, deal with the usual stress 10 encountered in the workplace. Id. at 656. Dr. Gupta also found that Plaintiff was not impaired in 11 her ability to perform simple, repetitive tasks, and was mildly impaired in her ability to perform 12 detailed and complex tasks, as well as accept instructions from supervisors. The ALJ found Dr. 13 Gupta’s opinion unpersuasive, as it was “not consistent with or well-supported by the objective 14 medical evidence.” Id. at 23. 15 Dr. De Hoyos 16 Dr. De Hoyos treated and observed Plaintiff since 2016. Id. at 359. On May 20, 2021, Dr. 17 De Hoyos filled out a “Mental Residual Functional Capacity Questionnaire,” which was to be used 18 to determine Plaintiff’s “ability to do work-related activities on a day-to-day basis in a regular 19 work setting.” Id. at 590. Dr. De Hoyos found that Plaintiff would either be unable to meet 20 competitive standards or had no useful ability to function in most areas of work-related activity. 21 Id. at 590-91. Dr. De Hoyos also reviewed the examination performed by Dr. Gupta and agreed 22 with her findings of “severe deficits in areas of interaction with coworkers, difficulty in 23 maintaining attendance[,] and difficulty in dealing with workplace stress.” Id. at 593. Ultimately, 24 Dr. De Hoyos’ diagnostic impressions were: Major Depression; PTSD; and, Anxiety. Id. at 590. 25 The ALJ found Dr. De Hoyos’ opinion unpersuasive, as it was “not well-supported by his clinical 26 findings or by the other objective medical evidence of record.” Id. at 23. 27 State Agency Psychologists 1 were also given consideration by the ALJ. Dr. Jacobs opined that Plaintiff was either not 2 significantly limited or was moderately limited in her performance of sustained work activities. Id. 3 at 87-89. Dr. Poma’s findings were substantially similar. Id. at 101-103. Because these opinions 4 relied on the 2019 decision, however, and because Plaintiff alleges a worsening of her symptoms 5 since that time, the ALJ found these opinions to be only “somewhat persuasive.” Id. at 23. 6 DISCUSSION 7 The ALJ in the present case appropriately set forth the applicable law regarding the five- 8 step sequential evaluation process. See id. at 16-18; 20 C.F.R § 416.920, § 404.1520. Given the 9 limited nature of the current dispute, the court finds that a full explanation of these steps is 10 unnecessary. For purposes of the present dispute, however, it is worth noting that the ALJ found— 11 at step two—that Plaintiff has the following severe impairments: major depressive disorder; 12 PTSD; and, generalized anxiety disorder. AR at 18. The ALJ also assessed Plaintiff as having the 13 Residual Functional Capacity (“RFC”) to “perform a full range of work at all exertional levels,” 14 but with the following limitations: working in a stable, low stress work environment, requiring 15 only occasional decision making, occasional use of judgment, and few changes in the day-to-day 16 work setting, tools, or processes; working in proximity to coworkers but not on joint or shared 17 tasks; performing work that is done by rote with few changes, little independent judgment, and 18 that is not done rapidly or with a high production quota; performing work requiring occasional 19 contact with others; and, working in a setting that does not require interaction with the public as 20 part of her job duties, but incidental contact is acceptable. Id. at 20. 21 As discussed supra, the Parties do not dispute that the ALJ’s decision was erroneous. 22 Instead, the only issue is whether the case should be remanded for a calculation of benefits or for 23 further proceedings. As set forth below, the court finds that it is appropriate to remand the case for 24 further administrative proceedings. 25 It is well established that “[i]f additional proceedings can remedy defects in the original 26 administrative proceeding, a social security case should be remanded [for further proceedings].” 27 Lewin v. Schweiker,

(9th Cir. 1981). It is equally well established that courts are 1 remanding the cause for a rehearing.”

(g); see also Garrison v. Colvin,

995, 1019 (9th Cir. 2014). Generally, remand with instructions to award benefits has been 3 considered when it is clear from the record that a claimant is entitled to benefits.

4 The credit-as-true doctrine was announced in Varney v. Sec’y of Health & Human Servs., 5

(9th Cir. 1988) (“Varney II”), where it was held that when:

6 [T]here are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear 7 from the administrative record that the ALJ would be required to award benefits if the claimant’s excess pain testimony were credited, 8 we will not remand solely to allow the ALJ to make specific findings regarding that testimony . . . [instead] we will . . . take that testimony 9 to be established as true. 10

. The doctrine promotes fairness and efficiency, given that remand for further 11 proceedings can unduly delay income for those unable to work but entitled to benefits.

. 12 The credit-as-true rule has been held to also apply to medical opinion evidence, in addition 13 to claimant testimony. Hammock v. Bowen,

(9th Cir. 1989). The standard for 14 applying the rule to either is embodied in a three-part test, each part of which must be satisfied for 15 a court to remand to an ALJ with instructions to calculate and award benefits:

16 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 17 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 18 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 19 20 Garrison, 759 F.3d at 1020. 21 It should also be noted that “the required analysis centers on what the record evidence 22 shows about the existence or non-existence of a disability.” Strauss v. Comm’r of the Soc. Sec. 23 Admin.,

(9th Cir. 2011). Thus, even though all conditions of the credit-as- 24 true rule might be satisfied, remand for further proceedings would still be appropriate if an 25 evaluation of the record as a whole creates a “serious doubt” that a claimant is, in fact, disabled. 26 Garrison, 759 F.3d at 1021. On the other hand, it would be an abuse of discretion for a district 27 court to remand a case for further proceedings where the credit-as-true rule is satisfied and the 1 Here, Plaintiff requests application of the credit-as-true doctrine (Pl.’s Mot. (dkt. 11) at 22- 2 23), while Defendant argues that further administrative proceedings are necessary “to allow the 3 ALJ to reevaluate the subjective symptom testimony and the medical opinion evidence.” Def.’s 4 Mot. (dkt. 20) at 2. To summarize, Defendant argues that further proceedings would allow the ALJ 5 to remedy any errors in the assessment of Dr. Gupta’s and Dr. De Hoyos’ opinions, particularity 6 with respect to the required factors of supportability and consistency. Id. at 6. In any case, 7 Defendant argues that Dr. Gupta and Dr. De Hoyos did not opine on “specific functional 8 limitations,” but instead only on the “severity of limitations.” Id. According to Defendant, these 9 “qualitive statements” cannot be “translated . . . into concrete functional limitations that were 10 presented or could be presented to a vocational expert.” Id. at 6-7. As to the opinions of the State 11 Agency medical consultants, Defendant argues that Plaintiff simply does not address why these 12 opinions should be disregarded. Id. at 7. Finally, Defendant argues that Plaintiff’s subjective 13 complaints are insufficient—as a matter of law—to warrant the payment of benefits, and that in 14 any case Plaintiff does not identify which statements, if credited, would support a disability 15 finding. Id. at 8. 16 Plaintiff, on the other hand, argues that certain limitations identified in the opinions of Dr. 17 Gupta and Dr. De Hoyos necessarily support a finding of disability—notwithstanding other 18 inconsistencies between these opinions. Pl.’s Reply (dkt. 21) at 2-3. Most notably, Plaintiff 19 emphasizes that both Dr. Gupta and Dr. De Hoyos found severe limitations in Plaintiff’s ability to 20 “interact with coworkers and the public, maintain regular attendance, or deal with the usual stress 21 encountered in the workplace.” Id. at 2. Because the VE testified that being off task for ten-percent 22 (10%) of the workday would eventually preclude competitive employment, as would being absent 23 more than eight (8) times per year, Plaintiff argues that “a severe limitation in the ability to 24 maintain regular attendance in the workplace would unambiguously lead to a finding of 25 disability.” Id. (emphasis in original). With respect to the State Agency medical consultants, 26 Plaintiff argues that their opinions “provided little to no analysis [in] support[] [], relied upon a 27 prior ALJ decision and were not consistent with any of the evidence.” Id. at 4. As to her own 1 sustaining attention to task for ninety-percent (90%) of the workday or having less than eight (8) 2 absences per year—either of which would preclude competitive employment. Id. at 7. 3 Defendant’s argument for further administrative proceedings is persuasive. Given that 4 several medical sources have assessed Plaintiff as having different sets of limitations, the court 5 finds that the record has not been fully developed, and that further administrative proceedings 6 would in fact serve a useful purpose. While Plaintiff places great weight on the consistency 7 between the opinions of Dr. Gupta and Dr. De Hoyos with respect to maintaining attendance, there 8 remain several areas in which these opinions differ notably. See Def.’s Mot. (dkt. 20) at 7 (noting 9 discrepancies with respect to Plaintiff’s ability to understand, remember, and carry out simple and 10 repetitive tasks, as well as interact with supervisors). In any case, Plaintiff’s argument with respect 11 to her attendance-related issues cannot be supported on the current record. While Dr. Gupta and 12 Dr. De Hoyos opined that Plaintiff was severely limited in various areas of attendance, there was 13 no quantification as to the amount of work that Plaintiff might miss as a result. Moreover, while 14 the VE testified generally about the number of absences that would preclude competitive 15 employment, no specific testimony was elicited regarding Plaintiff’s potential absences. As to the 16 State Agency consultants, given the somewhat unique nature of their opinions (being based on the 17 findings of the prior non-disability decision), the ALJ should be given an opportunity to address 18 more specifically the factors of supportability and consistency with respect to these opinions. 19 Remanding this case for further proceedings will allow the ALJ to adequately address the 20 above-mentioned discrepancies by consulting an additional medical expert who can review the 21 evidence and form an opinion and/or by sending questionnaire(s) to the above-mentioned medical 22 sources to further clarify their opinions. Such procedures are necessary, given that the ALJ has 23 effectively rejected all of the medical opinions in the record. As such, a finding of disability based 24 on the current record is unlikely to be supported by substantial evidence—regardless of whether 25 certain aspects of the existing opinions were credited as true. An additional medical opinion and/or 26 further clarification of the existing opinions, as well as further administrative proceedings, are 27 necessary to properly assess the existing opinions and, ultimately, to determine whether Plaintiff is 1 With respect to Plaintiffs pain and symptom testimony, the record would also benefit from 2 || further development. Plaintiff argues that her testimony, if credited as true, would necessarily 3 support a finding of disability. Plaintiff does not, however, link specific symptoms with their 4 attendant limitations and adequately explain how those limitations would result in a finding of 5 || disability. Instead, Plaintiff simply summarizes her testimony and states that this testimony would 6 || support a finding of disability. In any case, some of Plaintiffs testimony is potentially conflicting. 7 For example, Plaintiff testified extensively about the debilitating effects of her symptoms, yet has 8 traveled to El Salvador at least once and, at various times, has apparently engaged in strenuous 9 forms of exercise. See AR at 45. While the ability to travel or exercise are not, of course, 10 || necessarily incompatible with disability, the undersigned finds that further inquiry into □□□□□□□□□□□ 11 subjective complaints and level of activity would be useful. 12 Accordingly, because the record is unclear as to the extent of Plaintiff's limitations, as well 5 13 as being unclear as to whether Plaintiff is in fact disabled, the court will not apply the credit-as- 14 || true rule. Instead, the matter is remanded to the Commissioner for further proceedings. 3 15 CONCLUSION 16 For the reasons stated above, the court GRANTS Defendant’s Motion for Summary 3 17 || Judgment, DENIES Plaintiff's Motion for Summary Judgment, and REMANDS this matter for 18 || further proceedings consistent with this Order. The ALJ is furthered ORDERED to engage an 19 || additional medical expert who can review the evidence and form an opinion and/or to send 20 || questionnaire(s) to the above-mentioned medical sources to further clarify their opinions. 21 IT IS SO ORDERED. 22 Dated: June 13, 2023 23

25 RO TM. ILLMAN United States Magistrate Judge 26 27 28