MEMORANDUM AND ORDER
KENLY KIYA KATO, Magistrate Judge.
Plaintiff Jerome I. Douglas seeks review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or "Agency") denying his application for Title II Disability Insurance Benefits ("DIB"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is REVERSED and this action is REMANDED for further proceedings consistent with this Order.
I.
PROCEDURAL HISTORY
On December 2, 2010, Plaintiff filed an application for DIB.1 Administrative Record ("AR") at 56. On June 27, 2011, the Agency denied the application. Id. at 70. On September 1, 2011, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 75. On March 21, 2012, a hearing was held before ALJ James L. Moser. Id. at 39-53. On April 25, 2012, the ALJ issued a decision denying Plaintiff's application. Id. at 33. On May 4, 2012, Plaintiff asked the Agency's Appeals Council to review the ALJ's decision. Id. at 17. On September 12, 2013, the Appeals Council denied Plaintiff's request for review. Id. at 1.
On October 23, 2013, Plaintiff filed the instant action. This matter is before the Court on the parties' Joint Stipulation ("JS"), filed July 15, 2014, which the Court has taken under submission without oral argument.
II.
RELEVANT FACTUAL BACKGROUND
Plaintiff was born on October 17, 1949, and his alleged disability onset date is April 1, 2008. AR at 124. He was 58 years old at the time of the onset date, and 62 years old at the time of the hearing before the ALJ. Plaintiff graduated from high school. See id. at 141. In his Disability Report, Plaintiff claimed he worked as a sales representative from January 2000 until April 2008. Id. However, at the hearing before the ALJ, Plaintiff said he was "incarcerated for a long period of time," and was not released until 2003. Id. at 43. Plaintiff said he then sold, delivered, and stocked food in stores. Id. at 50. Plaintiff alleges disability based upon his advanced age, right arm pain caused by a gunshot wound, depression, anxiety, chronic hepatitis, and cardiac condition. Id. at 40.
A. Opinion of Treating Psychotherapist
From February 2, 2011, through June 27, 2011, Plaintiff went to New Beginnings Human Services, Inc. ("NBHS"), in Los Angeles, for psychotherapy. See id. at 439-42. One of Plaintiff's psychotherapists at NBHS was Dr. Maurice Zeilin.2 See id. The handwritten notes of Plaintiff's psychotherapy sessions contain the following information:
— Plaintiff had been in prison for 15 years, and had a history of using drugs and alcohol. Id. at 442.
— Plaintiff had been shot in the back in 1981 during an attempted robbery, and is now 65 percent disabled in his right arm. Id.
— On February 9, 2011, Plaintiff complained of "financial strain, sleeping disorder, constant pain, [and] headaches," along with "nightmares due to [the loss] of [his] wife" and "the big gap that his imprisonment has caused in his life." Id. Plaintiff expressed that his life was "a mess." Id.
— At almost every weekly session from February 9, 2011, until May 17, 2011, Plaintiff complained he was stressed and had difficulty sleeping. See id. at 440-42.
— On February 23, 2011, Plaintiff complained he was dizzy and felt like he was falling when he stood up. Id. at 442.
— On June 2, 2011, Plaintiff was depressed because his mother was in the hospital, and cried during the entire session. Id. at 440. At the final session on June 27, 2011, Plaintiff continued to feel depressed about his mother's health. Id. at 456.
On January 17, 2012, Plaintiff was informed that his services at NBHS were terminated. Id. at 454. He was referred to other outpatient mental health clinics in Los Angeles. Id.
In forms dated March 6, 2012, and March 7, 2012, Dr. Zeilin stated he had contact with Plaintiff on a bi-monthly basis.3 Id. at 461. He said Plaintiff had been prescribed Seroquel and Xanax,4 which caused Plaintiff to experience dizziness and drowsiness. Id. Under a section for "clinical findings," Dr. Zeilin wrote that Plaintiff suffered from major depression and schizophrenia, and that his prognosis was "fair." Id. (Dr. Zeilin also wrote the word "Bipolar," but crossed it out. Id.) Dr. Zeilin recorded a current Global Assessment of Functioning (GAF) score of 45, and a peak GAF score of 50 in the previous year.5 Id.
Using a checklist, Dr. Zeilin identified various "signs and symptoms" in Plaintiff, including but not limited to: anhedonia, appetite disturbance, decreased energy, blunt affect, feelings of guilt or worthlessness, generalized persistent anxiety, difficulty thinking or concentrating, persistent disturbances of mood or affect, psychomotor agitation, paranoid thinking, emotional withdrawal, memory impairment, sleep disturbance, recurrent severe panic attacks, and bipolar syndrome. Id. at 462.
Using another checklist, Dr. Zeilin found that, in 25 of 25 "mental abilities and aptitudes" needed to do unskilled, semiskilled, or skilled work, Plaintiff was in the second most limited category of "unable to meet competitive standards."6 Id. at 463-64. Those mental abilities and aptitudes included but were not limited to: remembering work-like procedures; understanding, remembering, and carrying out very short and simple instructions; maintaining attention for a two-hour segment; maintaining regular attendance and punctuality; completing a normal workday and workweek without interruptions from psychologically based symptoms; getting along with co-workers or peers; dealing with normal work stress; understanding, remembering, and carrying out detailed instructions; using public transportation; and adhering to basic standards of neatness and cleanliness. Id.
Dr. Zeilin wrote that Plaintiff cannot stay focused and circled "Yes" when asked whether Plaintiff had "reduced intellectual functioning." Id. at 464. Dr. Zeilin circled "No" when asked whether Plaintiff's "psychiatric condition exacerbate[s] [his] experience of pain or any other physical symptom." Id. Using yet another checklist, Dr. Zeilin stated that Plaintiff had an "anxiety related disorder and complete inability to function independently outside the area of [his] home." Id. at 465. Using a "Yes/No" questionnaire, Dr. Zeilin stated that Plaintiff is not "a malingerer"; his impairments or treatment would cause him to be absent from work more than four days per month; his impairment has lasted or can be expected to last at least twelve months; and his alcohol or substance abuse does not contribute to any of his limitations. Id. at 466. Finally, Dr. Zeilin stated that Plaintiff would be able to "manage benefits" in his own best interest. Id.
B. Plaintiff's Pre-Hearing Allegations
In an Exertion Questionnaire dated February 7, 2011, Plaintiff stated: "Because of my back pain[,] which is constant[,] I am always depressed and not able to work any more." Id. at 167. He said he lives in a house with his family, on whom he depends "daily." Id. Plaintiff said he can lift only small objects; cannot climb stairs; can walk only short distances; drives only when necessary because sitting is painful; does not sleep because his pain "will not let me"; takes Motrin and Vicodin; and "can't concentrate" because he is "always depressed." Id. at 168-69.
In a Pain Questionnaire dated May 31, 2011, Plaintiff said he began experiencing sharp back pain in 2009. Id. at 170. He also said he is able to stand for only five minutes at a time, and is able to sit for only ten to fifteen minutes at a time. Id. at 172.
In an undated Function Report, Plaintiff said his pain and depression "will not allow me to sleep"; he does not need reminders to take his medicine, or to take care of personal needs or grooming; he is not able to prepare meals; he does not take care of anyone; he is able to pay bills, handle a savings account, count change, and use a checkbook; he needs someone to drive him places because he has trouble sitting and his concentration is poor; and he cannot handle any type of stress because he is depressed. Id. at 159-166.
C. Consultative Examination (Physical)
On April 14, 2011, Plaintiff received a consultative exam by Dr. Soheila Benrazavi, at the request of California's Department of Social Services. Id. at 403. In a summary report, Dr. Benrazavi stated that Plaintiff complained of hepatitis C, back pain, chest pain, and left shoulder pain. Id. at 407. According to the summary report, Plaintiff showed "signs of moderate chronic liver disease," but no signs of decompensation. Id. The report further stated that Plaintiff's "right shoulder range of motion is diminished." Id. In a section titled "Functional Assessment," Dr. Benrazavi wrote that Plaintiff was able to lift and carry twenty pounds occasionally and ten pounds frequently; to sit, stand, and walk up to six hours in an eight-hour workday; but could only occasionally work "above the head in the right upper extremity." Id.
D. Consultative Examination (Psychiatric)
On April 16, 2011, Plaintiff received a complete psychiatric evaluation by Dr. Fahmy Ibrahim, at the request of California's Department of Social Services. Id. at 411. According to Dr. Ibrahim, Plaintiff arrived unaccompanied by bus; walked in without the assistance of a walking device; was "casually dressed and well groomed"; had normal posture; and was "engaged and cooperative" during the evaluation. Id. Plaintiff said he cannot focus at work because he "feels fatigued and dizzy." Id. at 412. He said he has "been depressed and suffered from anxiety since he was incarcerated for 30 years." Id. Plaintiff admitted he drinks beer occasionally and smokes a pack of cigarettes per day, but denied using drugs. Id. at 412-13. Plaintiff said he had an "excellent" relationship with his family, and was "able to dress, bath[e] himself, clean, run errand[s], do gardening, listen to radio, read the newspaper, exercise[], and study." Id. at 413. Plaintiff also said he was unable to manage his own money. Id.
Dr. Ibrahim found that Plaintiff was well-developed and well-nourished; was able to maintain eye contact during the interview; had fluent, regular speech; had a depressed mood and a restricted affect; had linear thought processes; exhibited no evidence of delusions, paranoia, or suicidal ideation; was able to "register" three of three items, and to recall two of those items five minutes later; was able to do serial seven backwards counting; was able to spell the word "table" backwards; was able to engage in abstract thinking; and had insight and judgment which appeared to be "intact." Id. at 413-14.
Dr. Ibrahim diagnosed Plaintiff with adjustment disorder with anxiety and recorded a GAF score of 60.7 Id. at 414. Under a section titled "Functional Assessment," Dr. Ibrahim found that Plaintiff's ability to relate to and interact with colleagues was mildly limited; his ability to understand and carry out simple instructions was normal; his ability to maintain enough focus to do work-related activities was mildly to moderately limited; his ability to understand and carry out detailed instructions was mildly to moderately limited; and his ability to cope with work-place stress was moderately limited. Id. As his prognosis, Dr. Ibrahim stated: "From a psychiatric standpoint, there is possibility of improvement after next 12 months of active treatment." Id. at 415.
E. Disability Determination Explanation
On June 27, 2011, a Disability Determination Explanation (DDE) was issued. Id. at 68. In one section of the DDE, Dr. R.E. Brooks, a non-examining doctor, concluded that Plaintiff's affective disorders cause mild restriction of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence or pace; and no episodes of decompensation of extended duration.8 Id. at 63. The DDE further stated that Plaintiff's "statements about the intensity, persistence, and functionally limiting effects" of his symptoms were not "substantiated by the objective medical evidence alone." Id. at 64. In one portion of the DDE, the following note appears: "showed no difficulty with [mental status examination]. not seeing a psychiatrist. non-severe." Id.
F. ALJ Hearing
On March 21, 2012, a hearing was held before ALJ Moser. Id. at 30. Plaintiff was represented by counsel and testified in person. Id. Vocational expert Kelly Winn-Boaitey also testified in person, and a medical expert testified by phone. Id.
1. Plaintiff's Testimony
Plaintiff testified he last worked in early 2009 in marketing as a sales representative and also stocking shelves in a grocery store. Id. at 41. In that job, Plaintiff lifted up to 80 pounds. Id. Plaintiff said it was now "very hard" for him to get up in the morning, and that he had only "65% motor skills" in his right arm. Id. at 42. Plaintiff said he had back pain and numbness in his fingers because his blood vessels were constricted. Id. Plaintiff said he received psychiatric treatment once a month at NBHS, which his family helped to pay for, and that he took medication for depression and anxiety. Id. at 42-43. Plaintiff said he was unable to walk more than a couple of blocks before needing to take a break. Id. at 43. Plaintiff said he had pain when sitting, and spent "three or four hours" in bed during the day, "[j]ust lying there." Id. at 44. Plaintiff said he cannot lift anything heavy. Id.
The ALJ asked Plaintiff whether he worked since he received the gunshot wound in 1981. Id. at 45. Plaintiff admitted he worked with the wound. Id. The following exchange then occurred:
[ALJ:] [So] you adapted to [the wound]?
[Plaintiff:] I adapted to it until the high blood pressure came in and I [fell] off the ladder and I didn't want to fail my job because I needed the job. And, ever since then, I've had problems with the muscles in my arm, my leg, my back. I still can't I can only go so far.
[ALJ:] When you fell off the ladder, did you treat for that problem? Did you go to a hospital or? [sic]
[Plaintiff:] What happened was I fell off the ladder and the, what do you call it, the clerks at the store, they set me down. I [sat] there for a little while. I got up and drove to the hospital. I didn't know what else to do.
[ALJ:] Did you make a Worker's Comp claim?
[Plaintiff:] No, because I needed the job.
Id. at 45-46.
2. Vocational Expert's Testimony
Vocational expert Kelly Winn-Boaitey testified that, taking into consideration Plaintiff's residual capacity assessment, a hypothetical individual could be a sales representative in food products — at least as the Labor Department's Dictionary of Occupational Titles ("DOT") defines that job, under DOT § 260.357-014. Id. at 50-51. However, Ms. Winn-Boaitey acknowledged, with Plaintiff's right shoulder limitation, Plaintiff would not be able to do that job as he actually performed it, which involved lifting up to 80 pounds. Id. at 51.
Plaintiff's counsel asked Ms. Winn-Boaitey whether a hypothetical claimant "who was likely to be off task up to two hours of the day due to psychological symptoms and symptoms of pain . . . [would] be able to engage in any competitive employment." Id. at 52. Ms. Winn-Boaitey answered, "No." Id. Plaintiff's counsel then asked: "And, what is the maximum number of absences within a given month that is typically tolerated by most employers in your professional opinion?" Id. Ms. Winn-Boaitey answered, "In my opinion, no more than one on a regular basis." Id.
III.
STANDARD FOR EVALUATING DISABILITY
To qualify for DIB, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity, and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.9
(3) Does the claimant's impairment meet or equal one of the specific impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.10
(4) Is the claimant capable of performing work he has done in the past? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity ("RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
IV.
THE ALJ'S DECISION
A. Step One
At step one, the ALJ found that Plaintiff "has not engaged in substantial gainful activity since April 1, 2008, the alleged onset date" of disability. AR at 24 (citations omitted).
B. Step Two
At step two, the ALJ found that Plaintiff "has the following severe impairment: status post balloon angioplasty and stents placement." Id. (citation omitted). However, the ALJ found the following impairments non-severe: hepatitis C, hypertension, "old gunshot wound to the right arm," liver disease, bronchitis, and occasional chest pain. Id. at 24-25.
The ALJ also found that Plaintiff did not have a severe mental impairment. In making that finding, the ALJ stated:
The record indicates the claimant received treatment on an intermittent basis for his mental health (Exhibits 7F, 8F, and 10F). The treatment records show the claimant received conservative treatment of prescription medication and counseling (Exhibits 3F-5F, 7F, 8F, and 10F). There is no evidence to suggest the claimant was ever hospitalized for psychiatric treatment or received any psychotherapy. In some treatment notes, the claimant reported being forgetful, feeling depressed, or having difficulty sleeping (Exhibits 3F, p. 2; 4F, pp. 93 98, 103; 5F, p. 5; 7F; 8F; and 10F). On some occasions, the claimant appeared depressed, hostile, or had a blunt affect (id.). However, the record supports the claimant's mental status was essentially normal throughout the treatment records indicating the claimant was mostly alert and oriented with a good mood and exhibited no obvious psychiatric issues (id.). Accordingly, the claimant's mental impairment is found nonsevere.
. . .
In determining the claimant has no severe mental impairments, the undersigned has given great weight to the opinion of the State agency review physicians who determined the claimant's mental impairments were nonsevere and caused no more than mild difficulty with regards to the [four functional areas] (Exhibit 3A[11]). Specifically they opined the claimant had mild restriction in activities of daily living; mild difficulties in social functioning; and mild difficulties with regard to concentration, persistence or pace (id.). They opined the evidence did not support any episodes of [decompensation] of extended duration (id.). The opinions of these physicians are consistent with the evidence of record, are well supported by the claimant's treatment history, and consistent with the claimant's admitted activities of daily living. Accordingly, these opinions are given great weight.
The undersigned gives little weight the opinions of psychiatric consultative examiner, Fahmy Ibrahim, M.D. (Exhibit 6F). Upon face-to-face examination, Dr. Ibrahim assessed the claimant with Axis I diagnosis of adjustment disorder with anxiety (id.). Dr. Ibrahim also determined the claimant's global assessment functioning (GAF) score was 60 [footnote omitted] (id.). Despite the claimant's allegations of disability, Dr. Ibrahim reported the claimant was only noted to be dressed with a constricted affect (id.). The doctor reported the claimant maintained eye contact and had normal psychomotor activity, fluent speech, linear goal directed thought process, intact insight and judgment, and no exhibited hallucinations, delusion, or illusions (id.). Based on these findings, Dr. Ibrahim opined the claimant had moderate limitations in his ability to cope with work place stress and mild to moderate limitation in maintaining focus and concentration require[d] to do work related activities and in his ability to understand and [carry out] detailed instructions (id.). The opinions of Dr. Ibrahim are inconsistent with the objective and clinical evidence of record supporting the claimant's mental status was essential[ly] normal throughout the record. Furthermore, his opinions are contradictory to the findings from his own examination of the claimant. Accordingly, the undersigned has relied more on the opinions of the State agency review physicians' psychological assessments in making the determination state herein as their opinions are more consistent with the record as a [whole].
The undersigned has read and gives little weight to the disability statements on a check-box forms [sic] by Dr. Maurice Zeilin, dated March 6 and 7, 2012 (Exhibits 12F and 13F). The limitations assessed by Dr. Zeilin would essentially preclude the claimant from substantial gainful activity (id.). The undersigned has given little weight to this opinion because it is brief, conclusory, and inadequately supported by clinical findings. This opinion of Dr. Zeilin appears to place more weight on the claimant's subjective complaints that have been found only partially credible. Dr. Zeilin's opinions are contradictory to the claimant's treatment history and even his own assessments of the claimant's mental status. Additionally, the evidence of record supports the claimant's mental status was essentially normal. Furthermore, as an opinion on an issue reserved to the Commissioner, this statement is not entitled to controlling weight and is not given special significance pursuant to 20 CFR 404.1527(e) and SSR 96-5. Accordingly, the undersigned finds Zeilin's opinions had little probative value because they were inconsistent with the objective medical evidence as a whole and claimant's admitted activities of daily living that have already been described above in this decision.
Id. at 25-27.
C. Step Three
The ALJ found that Plaintiff did not meet or equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 27.
D. RFC Determination
The ALJ found that Plaintiff "has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and SSR 83-10 except for the following limitations: the claimant is limited to performing postural activities on an occasional basis."12 Id. at 28. The ALJ stated that he had reviewed "the entire record," id., and "considered the functional limitations resulting from all of the claimant's medically determinable impairments, including those that are nonsevere." Id. at 27 (citation omitted). The ALJ explicitly considered testimony and medical findings regarding Plaintiff's "right arm impairments," gunshot wound, hand numbness, back pain, hypertension, psychiatric impairments, chest pain, hepatitis C, and liver function. See id. at 28-30.
Regarding medical opinions that Plaintiff's right shoulder range of motion was diminished, the ALJ stated:
In determining the claimant's residual functional capacity, the undersigned has given some but not significant weight to the opinions of the internal medicine consultative examiner, Dr. Benrazavi, and the State agency physical medical consultants on initial review and on reconsideration (Exhibits 3A, 2F, and 5F). The opinions of all of these physicians are generally consistent in that they all assessed the claimant is able to perform a restrictive range of light work with only some differences in the degree of specific function-by-function limitations. The opinion of these physicians indicating the claimant was limited to performing a light range of work is consistent with the evidence of record and given significant weight; however, the specific limitations opined by these physicians are given little weight to the extent they are inconsistent with the determinations herein. The additional restrictions opined by these physicians are inconsistent with the record as a whole and are not supported by the claimant's admitted activities of daily living or the objective and diagnostic evidence of record as discussed above.
Id. at 31.
E. Step Four
At step four, the ALJ found Plaintiff was "capable of performing past relevant work as a sales representative, food products." Id. at 32. The ALJ explained:
[T]he undersigned finds the claimant's work in the occupations listed below is past relevant work . . .:
1. Sales representative, food products, DOT 260.357-014, is a light, semi-skilled . . . position, as generally performed pursuant to the DOT . . .
. . . .
. . .
The undersigned notes that even if the claimant were limited to light work with occasional postural [activities] and no overhead reaching as suggested by the consultative examiner (Exhibit 5F) the vocational expert testified the claimant would still be able to perform his past relevant work as a sales representative, food products as generally performed. A finding of "not disabled" is therefore appropriate under the framework of this rule.
Id. at 33.
F. Step Five
The ALJ did not analyze step five.
V.
PLAINTIFF'S CLAIMS
Plaintiff makes the following arguments:
1. Substantial evidence does not support "[t]he ALJ's finding that there was no severe mental impairment." JS at 3. Specifically, that finding is erroneous because the ALJ gave "little weight" to the opinions of Dr. Zeilin and Dr. Ibrahim, while giving the "most weight" to a nonexamining physician. Id. at 4.
2. In assessing Plaintiff's RFC, the ALJ erred by failing to consider the effect of Plaintiff's "additional impairments," including his "hepatitis C, hypertension, gunshot wound, liver disease, bronchitis, chest pain, and depression." Id. at 4.
3. In assessing Plaintiff's RFC, the ALJ erred by not crediting Dr. Benrazavi's finding that Plaintiff has a "diminished range of motion in the right shoulder." Id. at 10-11.
4. At step four, the ALJ improperly classified Plaintiff's former job as a sales representative as "light work," without "exploring the amount of time" Plaintiff actually spent in that job doing light tasks, as opposed to doing more difficult tasks. Id. at 13-14.
VI.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. This Court "may set aside a denial of benefits if it is not supported by substantial evidence or it is based on legal error." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citation and internal quotation marks omitted).
"Substantial evidence" is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (stating that a reviewing court "may not affirm simply by isolating a specific quantum of supporting evidence") (citations and internal quotation marks omitted). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) ("Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.").
The Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be considered harmless if it is "clear from the record" that the error was "inconsequential to the ultimate nondisability determination." Robbins, 466 F.3d at 885 (citation and internal quotation marks omitted).
VII.
DISCUSSION
A. The ALJ Erred at Step Two By Prioritizing a Nonexamining Physician's Opinion Over the Treating and Examining Physicians' Opinions.
Dr. Zeilin, the treating doctor, and Dr. Ibrahim, the examining doctor, agreed that Plaintiff suffered from a mental impairment. Dr. Zeilin concluded Plaintiff suffered from depression and schizophrenia, whereas Dr. Ibrahim concluded Plaintiff suffered from adjustment disorder with anxiety. AR at 414, 461. Both doctors also found that, as a result of the mental impairment, Plaintiff would have at least some moderate limitations in handling work responsibilities. See id. at 414, 461-66. In finding that Plaintiff did not have a severe mental impairment at step two, the ALJ gave "little weight" to their opinions, and instead gave "great weight" to the opinion of Dr. Brooks, who completed the DDE based on a review of Plaintiff's file, rather than on observations of the Plaintiff. Id. at 25-26. Plaintiff argues the ALJ "applied a `reverse hierarchy' of weight to the physician opinion evidence." JS at 4.
1. Legal Standard at Step Two
"At step two, the ALJ assesses whether the claimant has a medically severe impairment or combination of impairments that significantly limits his ability to do basic work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing 20 C.F.R. § 404.1520(a)(4)(ii)). "The `ability to do basic work activities' is defined as `the abilities and aptitudes necessary to do most jobs.'" Id. (citation omitted). These abilities and aptitudes include: (1) physical functions such as walking, standing, sitting, lifting, and carrying; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Averbach v. Astrue, 731 F.Supp.2d 977, 981 (C.D. Cal. 2010) (citing, inter alia, 20 C.F.R. §§ 404.1521(b), 416.921(b)).
"An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb, 433 F.3d at 686 (emphasis in original; citations and internal quotation marks omitted). If "an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step." Id. at 687 (citation and internal quotation marks omitted). "Step two, then, is a de minimis screening device [used] to dispose of groundless claims, and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is clearly established by medical evidence." Id. (citations and internal quotation marks omitted). "Thus, applying our normal standard of review to the requirements of step two, we must determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that [Plaintiff] did not have a medically severe impairment or combination of impairments." Id.
2. Legal Standard for Resolving Conflicts in Medical Opinion
An ALJ "must consider all medical opinion evidence," and is responsible for "resolving conflicts in medical testimony." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Cases in this circuit distinguish among 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) (footnote omitted). Generally, the opinion of a treating physician is entitled to greater weight than the opinion of an examining physician, and the opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician. Id.
Where a treating or examining doctor's opinion is not contradicted by another doctor, "it may be rejected only for clear and convincing reasons supported by substantial evidence in the record." Orn, 495 F.3d at 632 (citation and internal quotation marks omitted). However, where a treating or examining doctor's opinion is contradicted, the ALJ may reject the opinion if he provides "specific and legitimate reasons supported by substantial evidence in the record." Id. (citations and internal quotation marks omitted). "This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (citation and internal quotation marks omitted). "An ALJ may reject a treating physician's opinion if it is based `to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti, 533 F.3d at 1041 (citations omitted).
"The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831 (citations and emphasis omitted). The Ninth Circuit has, "in some cases, upheld the Commissioner's decision to reject the opinion of a treating or examining physician, based in part on the testimony of a nonexamining medical advisor." Id. (citations omitted). In those cases, however, there has generally been "an abundance of evidence that supported the ALJ's decision" to prioritize the nonexamining physician's testimony. Id. For example, in Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989), the ALJ's prioritization of the nonexamining physician's opinion was justified because the examining physicians issued "contrary reports," and because the ALJ was able to rely on laboratory test results and "testimony from the claimant that conflicted with her treating physician's opinion." Lester, 81 F.3d at 831 (citing Magallanes, 881 F.2d at 751-52). As another example, in Andrews v. Shalala, the ALJ's prioritization of the nonexamining physician's opinion was justified because "there was a clear conflict between the examining [doctor's] opinion and the overwhelming weight of the other evidence of record." Id. (citing Andrews, 53 F.3d at 1039).
3. Application
There was neither abundant nor overwhelming evidence to support the ALJ's decision to prioritize the findings of Dr. Brooks over the findings of Dr. Zeilin and Dr. Ibrahim. Under step two's de minimis screening standard, the ALJ should have given the benefit of the doubt to Dr. Zeilin's and Dr. Ibrahim's opinion that Plaintiff has a mental impairment which causes greater-than-mild functional limitations. As the record currently stands, the evidence did not "clearly establish[]" that Dr. Zeilin's and Dr. Ibrahim's opinions were wrong, or that Plaintiff had only a "slight abnormality [with] no more than a minimal effect on [his] ability to work." Webb, 433 F.3d at 686-87. On the contrary, the record contains psychotherapy notes, along with Dr. Zeilin's statement that Plaintiff has been prescribed Seroquel and Xanax.13 See AR at 461. In addition, the highest GAF score Plaintiff received from either Dr. Zeilin or Dr. Ibrahim was "60, which suggests a mental impairment that is severe in nature." Jimenez v. Astrue, 641 F.Supp.2d 954, 960 (C.D. Cal. 2009) (citations, internal quotation marks, and ellipsis omitted); see also AR at 414, 461.
For these reasons, Plaintiff satisfied the de minimis screening standard at step two. See Webb, 433 F.3d at 688 ("There is not, in this instance, the total absence of objective evidence of severe medical impairment such as was the case in Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), where we affirmed a finding of no disability at step two when even the claimant's doctor was hesitant to conclude that any of the claimant's symptoms and complaints were medically legitimate.") (emphasis added; citation omitted). The sequential evaluation concerning mental impairment should not have ended at step two. Remand is appropriate for the ALJ to determine what limitations, if any, are actually posed by Plaintiff's mental impairment, and whether any such limitations affect the remaining steps of the sequential evaluation.
B. In Assessing Plaintiff's RFC, the ALJ Properly Considered Most of Plaintiff's Additional Impairments.
Plaintiff argues that the following impairments "should have been contemplated in the context of plaintiff's residual functional capacity": "plaintiff's hepatitis C, hyptertension, gunshot wound, liver disease, bronchitis, chest pain, and depression." JS at 4.
In assessing Plaintiff's RFC, the ALJ explicitly considered all of those impairments. AR at 28-30. To the extent the ALJ erred at step two, he should consider what limitations, if any, are actually posed by Plaintiff's depression, and whether those limitations prevent Plaintiff from working. See supra Section VI.A.3. However, with regard to each of the other impairments, Plaintiff's argument is meritless.
C. Assuming the ALJ Erred by Failing to Credit Dr. Benrazavi's Finding Regarding Plaintiff's Right Shoulder, the Error Was Harmless.
Plaintiff argues that the ALJ erred in assessing Plaintiff's RFC, by failing to credit Dr. Benrazavi's finding that Plaintiff has a "diminished range of motion in the right shoulder." JS at 10-11. Assuming the ALJ erred in failing to credit Dr. Benrazavi's finding, the error was harmless because, at step four, the ALJ explicitly assumed Plaintiff had postural limitations and would not be able to perform "overhead reaching." AR at 33.
D. The ALJ Did Not Err in Classifying Plaintiff's Former Job as "Light."
Plaintiff argues that, in classifying Plaintiff's former job as a sales representative in food products as "light," the ALJ erred by not "exploring the amount of time [Plaintiff] actually performed the light portion of the job," and "by not classifying plaintiff's work as a composite job." JS at 14 (emphasis added).
1. Legal Standard
At step four, "the claimant has the burden to prove that he cannot perform his prior relevant work either as actually performed or as generally performed in the national economy." Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation and internal quotation marks omitted). "Typically, when determining how plaintiff's past relevant work was actually performed, plaintiff `is the primary source for vocational documentation . . . .'" Jonker v. Astrue, 725 F.Supp.2d 902, 911 (C.D. Cal. 2010) (quoting Social Security Ruling 82-62). "But when determining how the work is generally performed, the ALJ can rely on the descriptions given by the [DOT] or a vocational expert." Id. at 911-12 (citations omitted). The Ninth Circuit has "never required explicit findings at step four regarding a claimant's past relevant work both as generally performed and as actually performed." Pinto, 249 F.3d at 845 (emphasis in original).
2. Application
The ALJ explicitly stated that he was only determining whether Plaintiff could perform his prior relevant work "as generally performed." AR at 33 (emphasis added). Under Pinto, because the ALJ made explicit findings regarding Plaintiff's past relevant work as generally performed, he was not required to make explicit findings regarding the work as it was actually performed. Thus, Plaintiff's claim that the ALJ erred in classifying Plaintiff's former work is meritless.
VIII.
RELIEF
A. Legal Standard
"When an ALJ's denial of benefits is not supported by the record, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Hill, 698 F.3d at 1162 (citation and internal quotation marks omitted). "We may exercise our discretion and direct an award of benefits where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed." Id. (citation and internal quotation marks omitted). "Remand for further proceedings is appropriate where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated." Id. (citations omitted); see also Reddick, 157 F.3d at 729 ("We do not remand this case for further proceedings because it is clear from the administrative record that Claimant is entitled to benefits.").
In cases where an ALJ has improperly rejected "claimant testimony or medical opinion," a court must remand to the ALJ "with instructions to calculate and award benefits" if (1) "the record has been fully developed and further administrative proceedings would serve no useful purpose"; (2) "the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion"; and (3) assuming "the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Garrison, 759 F.3d at 1020 (citations and footnote omitted).
B. Analysis
In this case, the record has not been fully developed. As already stated, the ALJ must complete the sequential evaluation concerning mental impairment, after considering all relevant evidence in the record.
IX.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.
