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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DANIEL ANTHONY MCDADE,

Plaintiff,

v.

NANCY A. BERRYHILL,

Defendant.

Case No. 17-cv-00763-JCS 

ORDER REGARDING CROSS 

MOTIONS FOR SUMMARY 

JUDGMENT

Re: Dkt. Nos. 15, 22

I. INTRODUCTION

Plaintiff Daniel McDade brings this action appealing the final decision of Defendant 

Nancy A. Berryhill, Acting Commissioner of Social Security (the “Commissioner”) denying 

McDade’s application for disability benefits. The parties have filed cross motions for summary 

judgement pursuant to Civil Local Rule 16-5. For the reasons discussed below, McDade’s motion 

is GRANTED, the Commissioner’s motion is DENIED, and the matter is REMANDED to the 

Commissioner for an award of benefits.1 

II. BACKGROUND

Because McDade’s motion and the Court’s decision turn primarily on McDade’s anxiety 

disorder, the summary of the record and arguments below focuses on that issue, as addressed by 

the parties and the ALJ, and is not intended as a comprehensive description of the administrative 

record, the ALJ’s decision, or McDade’s medical history. 

A. McDade’s Medical Records

On June 11, 2013, McDade sought treatment for dizziness, diarrhea and heartburn which 

occurred when he was at work. Administrative Record (“AR,” dkt. 9) at 436. He reported feeling

 

1 The parties have consented to the jurisdiction of the undersigned magistrate judge for all 

purposes pursuant to 28 U.S.C. § 636(c). 
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like blacking out, along with dizziness that lasted for an hour and was more prominent when 

seated. Id. McDade reported that the abdominal pain and diarrhea had occurred for eleven years 

intermittently and had worsened in the five months prior to his visit. Id. at 437. McDade was 

referred to a gastroenterologist, who diagnosed gastroesophageal reflux disease (“GERD”) and 

prescribed Pantoprazole on June 20, 2013. Id. at 437, 440. 

On June 27, 2013, McDade sought treatment in the emergency room for GERD, at which 

time he was prescribed Ativan for anxiety. Id. at 444. Two days later, on June 29, 2013, McDade 

reported increased anxiety and that the Ativan was not working. Id. The physician increased 

McDade’s Ativan dose to twice daily. Id. On July 1, 2013, McDade again reported increased 

anxiety, another visit to the emergency room for shortness of breath and wheezing, and increased 

GERD symptoms. Id. at 446. On July 10, 2013, McDade sought treatment for anxiety and

inability to sleep. Id. at 453. He reported having gone to the emergency room again for dizziness 

the week prior. Id. The medical record notes that a colonoscopy and Holter monitoring to rule out 

inflammatory bowel disease and heart arrhythmias respectively were both normal. Id. at 454. 

McDade reported stress regarding an upcoming family road trip, as well as familial stress 

regarding his health. Id. McDade reported experiencing tunnel vision, shortness of breath, 

palpitations and stomach aches. Id. The record notes that Ativan helped. Id. The doctor 

documented a primary encounter diagnosis of anxiety, referred McDade to the psychiatric 

department and prescribed Celexa for anxiety. Id. at 455. 

On July 11, 2013, McDade saw Natalie Todd, Psy.D., to complete an Adult Therapist 

Intake Evaluation. Id. at 562. McDade reported his panic attacks started five weeks prior, and 

that he had experienced six panic attacks since onset. Id. His first panic attack occurred at work 

when he felt overwhelmed by his workload. Id. At the time of his evaluation, McDade was 

unable to identify a trigger for his subsequent panic attacks. Id. His fear of panic attacks had 

prevented him from working the four weeks prior to the visit. Id. He also feared having a panic 

attack while driving, though he did not avoid driving due to this fear. Id. McDade explained that 

he experienced embarrassment regarding his dyslexia at his job and nervousness when speaking to 

his boss. Id. When completing a mental status examination, Dr. Todd noted that McDade 
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appeared well-groomed and was pleasant, cooperative, and fidgety. Id. at 564. His speech, 

thought content, attention, concentration and fund of knowledge were all normal. Id. His mood 

was euthymic, he demonstrated appropriate and a full range of affect, and his thought process was 

logical. Id. Additionally, McDade was fully oriented; his recent and remote memories were

intact; and his impulse control, insight and judgement were all good. Id. Dr. Todd noted that

McDade did not meet the criteria for Generalized Anxiety Disorder at the time. Id. at 562. Dr. 

Todd diagnosed panic disorder and a Global Assessment of Functioning (“GAF”) score of 51 to 

60, indicating moderate symptoms. Id. at 564. 

On July 16, 2013, McDade reported difficulty sleeping at night partly due to anxiety, for 

which a provider recommended McDade take melatonin nightly. Id. at 459–60. McDade attended 

an “Immediate Treatment of Anxiety Group” therapy session on the same day, during which he 

shared he that he was experiencing work stress and believed this to be a primary trigger for him as 

his panic attacks most often occurred at work. Id. at 554. On the Immediate Treatment of Anxiety 

Group Checklist, McDade indicated having panic and anxiety attacks, which he feared having 

again, and that this fear interfered with his life. Id. at 558. He indicated that the attacks had begun 

a month prior. Id. He also indicated social symptoms of anxiety; the presence of trauma, 

including repeated unwanted thought patterns; and excessive worrying. Id. at 560. The group 

leader, Jessica Lande, Psy.D., diagnosed panic disorder. Id. at 554. 

On July 17, 2013, McDade saw Naureen Khan, M.D., to whom he reported that his 

symptoms had worsened. Id. at 545. McDade reported his anxiety had lasted for many years, 

with “[s]ymptoms includ[ing] insomnia, agitation, decreased concentration, excessive worry, 

restlessness, muscle tension, hypervigilance, somatic complaints, shortness of breath, fear of dying 

and fear of losing control/going crazy.” Id. He completed a mental health survey in which he 

indicated than on most days he had little energy, felt bad about himself and unproductive, and had

trouble focusing. Id. at 552. He also reported he felt nervous, anxious, or on edge, and was 

unable to stop or control worrying nearly every day. Id. McDade’s panic attacks included “fear of 

dying, fear of losing control/going crazy, palpitations, lightheadedness, chest pain and sweating.” 

Id. at 545. McDade reported he first experienced such symptoms for one hour in 1995 when his 
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father passed away. Id. He again experienced symptoms in 2011 when two of his wife’s family 

members passed away within a short period of time. Id. He did not seek help at the time as he 

was able to control symptoms. Id. McDade reported that he began experiencing panic attacks on 

a daily basis three weeks prior to his visit with Dr. Khan. Id. He reported feeling stressed at 

work, and that the demands of his job made him anxious. Id. He additionally stated his sleep had 

been disturbed, that he was easily irritated, and that he would snap at his family. Id. He denied 

feeling sad or depressed, though his wife reported believing he was depressed. Id. When taking 

melatonin, McDade reported he would sleep for six to seven hours a night. Id. He reported 

frequent ER visits. Id. Dr. Khan diagnosed panic disorder, with problems related to McDade’s 

social environment and occupational problems. Id. at 548. Dr. Khan prescribed Celexa, and 

planned to taper McDade’s Ativan prescription due to its addictive nature. Id. McDade’s mental 

status examination was normal other than his mood being anxious and his affect being appropriate 

to his anxious mood. Id. at 547. 

On July 25, 2013, McDade called his doctor to report many of the side effects of Celexa 

were intolerable. Id. at 543. He had been taking Celexa for two weeks during which time the side 

effects did not ameliorate. Id. He reported feeling like a “zombie,” depressed, jittery, nauseated 

and unable to get out of bed. Id. The doctor changed McDade’s prescription from Celexa to 

Prozac. Id. 

McDade again saw Dr. Todd on July 30, 2013, at which time he reported he had no panic 

attacks since his last session. Id. at 534. McDade stated that group therapy was helpful, as were

increased exercise and yoga. Id. He reported taking Prozac daily and that he felt he was 

managing his anxiety well. Id. McDade reported returning to work, speaking with his boss about 

his stress, lowering his workload, changing his office location to sit closer to others, and eating his 

lunch outside to relax. Id. He stated that he was looking forward to family vacation, and spending 

more time with his family and wife. Id. He agreed to keep a daily mood log to track his anxiety 

and panic attacks. Id. Upon mental status examination, McDade was appropriately dressed, his 

mood was euthymic, and he demonstrated full, appropriate affect. Id. at 535. Dr. Todd assessed a

GAF score of 51 to 60, indicating moderate symptoms. Id. 
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After moving from California to Florida, see id. at 506, McDade sought medical treatment 

at Amana Medical Center on August 20, 2013 to discuss lowering his dosage of Ativan, and to get 

refills of his prescriptions. Id. at 495. He reported his anxiety attacks had worsened in the past 

two months, with fluctuating frequency. Id. The doctor diagnosed generalized anxiety disorder, 

and changed McDade’s medication from Prozac to Buspirone and Omeprazole. Id. McDade was 

advised to increase his dietary and exercise efforts. Id. 

McDade again saw a doctor at Amana Medical Center on August 26, 2013. Id. at 494. He 

reported Ativan addiction, and experiencing withdrawal symptoms when weaning off the 

medication, including shaking, shortness of breath, sleeplessness, inability to focus, and 

tearfulness. Id. McDade reported he had not begun to take Buspirone because he feared 

addiction. Id. Although McDade did not express any suicidal ideation, he repeatedly stated, 

“there is no light at the end of the tunnel,” and the treating physician reported he appeared 

hopeless and depressed. Id. The physician referred McDade to Lakeside Behavioral Clinic for 

evaluation and treatment of depression. Id. 

McDade completed an intake screening at Lakeside Behavioral Clinic on August 27, 2013. 

Id. at 506. He reported a decrease in daily activity, low energy, racing thoughts, panic attacks, 

confusion, forgetfulness, and problems sleeping. Id. McDade continued to take Ativan, though he 

was slowly trying to stop taking it due to its addictive properties. Id. He attributed his symptoms 

to the side effects of stopping Ativan. Id. On his mental status examination, Tamra Brown, a 

master’s level provider, noted McDade was alert and oriented to person, place, time, and situation. 

Id. at 507. McDade demonstrated poor concentration, normal speech, poor insight, broad affect, 

and anxious mood. Id. Brown diagnosed anxiety disorder not otherwise specified, indicated 

McDade had risk factors of severe panic/anxiety and anhedonia, and assessed a GAF score of 51. 

Id. at 506, 509.

On August 30, 2013, McDade spoke with Dr. Khan via telephone from Florida, noting that 

he was returning to California “in a few days.” Id. at 529. McDade reported that stopping Ativan 

was “miserable” with increased anxiety, agitation, insomnia and restlessness. Id. Upon restarting 

taking Ativan, he began feeling better. Id. He reported he had been sleeping six to seven hours a 
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night. Id. McDade stated that he was not having increased anxiety or panicky feelings. Id. He 

stopped taking Prozac because it made him feel jittery and had gastrointestinal side effects. Id. 

He began taking 5mg of Buspar daily but had not noticed an improvement. Id. He reported he 

was having fun vacationing in Florida with his family, describing the weather as being nice with 

some heavy rains. Id. He stated he was fearful that his flight would get delayed. Id. He denied 

having depressive symptoms. Id. Dr. Khan recommended McDade increase his dose of Buspar to 

5mg twice daily, and continue with 1mg of Ativan daily. Id. 

On September 17, 2013, McDade was seen at Lakeside Behavioral Adult Outpatient 

Medical Clinic. Id. at 503. He sought continued treatment for his anxiety, and also reported that 

he might have underlying depression. Id. McDade reported experiencing low appetite, sleep 

disturbance, dizziness, headaches, dry mouth, muscle tension, and GERD. Id. at 513. The 

provider noted on a mental status examination that McDade was cooperative and that he spoke at a 

normal rate and with a normal rhythm. Id. at 504. He was oriented to person, place, time, and 

situation. Id. His mood was depressed and anxious, and his affect was blunted. Id. His thought 

processes were coherent, logical, and organized. Id. He denied suicidal ideation, suicidal 

attempts, homicidal ideation, auditory hallucinations, visual hallucinations, paranoia, and 

grandiosity. Id. His memory was intact, as measured by recall of three objects at time intervals. 

Id. He had difficulty with concentration and attention, and his insight and judgement impulse 

controls were fair. Id. The provider increased Buspar from 15mg to 15mg twice daily to decrease 

anxiety, prescribed Trazadone to help with insomnia, and prescribed Lexapro to decrease anxiety 

and depression. Id. at 505. McDade was referred to group therapy, and to the Center for Drug 

Free Living for detox from Ativan. Id. 

On November 18, 2013, McDade reported that Buspar was making him lethargic and 

sleepy all day long. Id. at 516. According to McDade’s wife, this was not normal for him. Id. 

McDade also reported that he stopped taking Ativan and that his anxiety was getting better. Id. 

His wife reported that his attention was poor at times and that he was very moody. Id. On mental 

status examination, McDade’s speech was normal, his concentration was difficult at times, his

mood was depressed and anxious, he appeared to be adequately groomed, his thought content and 
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process were congruent, and his recent and remote memory, insight and judgment were fair. Id. 

The provider assessed a GAF score of 50, and recommended lowering his Buspar dose. Id. at 517. 

On December 3, 2013, McDade reported experiencing dizziness, headache, and blurry 

vision. Id. at 492. He attributed these symptoms to the Buspar, which he reported was not 

working. Id. The provider diagnosed generalized anxiety disorder, insomnia, post-traumatic 

stress disorder, dizziness and giddiness, and headache. Id. McDade was advised to stop taking 

Buspar, increase dietary efforts and exercise, start Celexa again, and continue Trazadone. Id. 

On February 10, 2014, McDade reported only being able to sleep four hours a night. Id. at 

520. He also reported that he was easily agitated, and although his appetite was fair, he would not 

eat some days. Id. He reported Buspar made him lightheaded, with decreased memory. Id. He 

reported having panic attacks twice a day. Id. Upon mental status examination, McDade’s speech 

was normal; his remote and recent memory, concentration, insight and judgement were fair; he 

appeared adequately groomed; and his mood/affect and thought content/process were congruent. 

Id. His GAF was assessed to be 50. Id. at 521. The provider advised him to discontinue Buspar, 

increase Lexapro, add Atarax, and continue Trazadone. Id. 

McDade saw Juana Gonzalez Aguirre, M.D., at John Muir Health in Concord, California 

on December 19, 2014. Id. at 588. Dr. Aguirre diagnosed insomnia and an anxiety disorder. Id. 

at 590. On January 19, 2015, McDade reported that his anxiety was stable, but not completely 

resolved. Id. at 573. He also reported continued insomnia, only sleeping two to three hours a 

night, and up to six hours on a good night. Id. Dr. Aguirre again diagnosed an anxiety disorder. 

Id. at 576. 

McDade began seeing Matthew Littlefield, M.D., on December 6, 2014. Id. at 596. 

McDade reported he continued to experience panic attacks lasting a few minutes characterized by 

sudden, intense feelings of anxiety, unprovoked difficult breathing, heart racing, and feeling out of 

control. Id. He reported that work and financial stress increased the severity of his panic attacks,

and his relocation to Florida had worsened his panic attacks. Id. McDade stated that Lexapro had 

relieved the panic attacks to a small extent, but reported that the medication gave him headaches. 

Id. On mental status examination, McDade’s speech was normal, his mood was anxious, his affect 
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was mildly anxious, and his thought process was linear. Id. His judgment and insight were good 

to fair and his attention was good. Id. Dr. Littlefield diagnosed panic disorder and evaluated 

McDade’s GAF to be 60. Id. at 597. Dr. Littlefield recommended supportive therapy and 

psychoeducation, changed McDade’s Celexa and Vistaril doses, stopped Trazodone, and began 

Ambien for insomnia. Id. 

On January 8, 2015, McDade reported to Dr. Littlefield that he continued to experience

significant anxiety, which worsened when in public. Id. at 594. McDade reported that he “could 

not go with [his] wife to the store,” and experienced difficulties Christmas shopping in the mall. 

Id. McDade stated that his medications had not changed his symptoms, and reported excess 

sedation with the increased Vistaril dose. Id. Dr. Littlefield noted an improvement in mood/affect 

but no improvement in his thought process and content. Id. Dr. Littlefield evaluated a GAF score 

of 60. Id. Dr. Littlefield increased McDade’s dose of Celexa, and reduced his Vistaril dosage. Id. 

McDade saw Dr. Littlefield again on March 7, 2015, at which time McDade reported 

having panic attacks when out of the house or in crowds, stating, “when I’m around crowds I’m 

getting anxious, my body breaks out.” Id. at 593. McDade also reported that when at his home he 

experienced anxious feelings related to his daughters’ stress. Id. His anxiety remained severe, and 

he was unable to work. Id. McDade reported a decrease in symptoms with his medication, and 

non-compliance with his medication regimen. Id. Dr. Littlefield assessed an improvement in 

mood/affect, as well as thought process/content. Id. Dr. Littlefield again increased McDade’s 

Celexa dose as McDade had a limited response to that medication as well as several SSRIs. Id. 

On July 22, 2015, McDade again saw Dr. Littlefield and reported an increase in symptoms 

of Generalized Anxiety Disorder, including insomnia, excess worries, irritable mood, and 

difficulty concentrating due to anxious thoughts and mood. Id. at 609. McDade experienced 

difficulties with anhedonia, but was able to enjoy his children’s sporting events. Id. McDade’s 

mood was more hopeful due to an upcoming move but also reported that he had “been really 

anxious.” Id. Although McDade reported that his symptoms had decreased due to medication, his 

anxiety remained severe and escalated in the evenings. Id. Dr. Littlefield noted that McDade’s 

mood and affect had worsened, with his mood being “more anxious recently,” and his affect 
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“restricted, tense at times.” Id. McDade spoke at a normal, non-pressured rate; demonstrated 

linear thought process, good judgment and fair insight; and had fair recent and remote memory

recall. Id. Dr. Littlefield rated McDade’s GAF at 50, and modified his medication. Id. at 610. 

Dr. Littlefield completed a Mental Health Treatment Questionnaire on August 10, 2015. 

Id. at 619. In this report, Dr. Littlefield diagnosed Generalized Anxiety Disorder and Panic 

Disorder. Id. He assessed a GAF score of 50, and reported that McDade’s highest GAF score in 

the past year was 50 to 55. Id. He described McDade as experiencing motor tension, 

apprehensive expectation, autonomic hyperactivity, vigilance and scanning as part of his 

generalized persistent anxiety. Id. Dr. Littlefield also noted that McDade experienced persistent 

irrational fears and recurrent severe panic attacks, which were less severe with treatment. Id. Dr. 

Littlefield reported McDade experienced sleep disturbance, mood disturbance, social withdrawal 

or isolation, generalized persistent anxiety, feelings of guilt and worthlessness, and difficulty 

thinking or concentrating. Id. at 620. Dr. Littlefield found McDade’s functional limitations as a 

result of his mental impairments to be marked in activities of daily living and maintaining social 

functioning, in particular in public and family settings. Id. at 621. Dr. Littlefield stated McDade 

had frequent deficiencies of concentration, persistence or pace resulting in failure to complete 

tasks in a timely manner. Id. Dr. Littlefield also reported that McDade has had repeated (three or 

more) episodes of deterioration or decompensation in work or work-like settings. Id. Dr. 

Littlefield opined that McDade was unable to function independently outside the area of his home 

and required family assistance. Id. Additionally, according to Dr. Littlefield’s assessment, 

McDade’s anxiety would cause him to be absent from work more than three times a month, and he 

would have difficulty working a regular job on a sustained basis. Id. at 622. Dr. Littlefield also 

noted that McDade’s anxiety had caused a substantial loss of ability to understand, remember, and 

carry out simple tasks; respond appropriately to supervision, co-workers, and unusual work 

situations; and deal with changes in a routine work setting. Id. Dr. Littlefield indicated that 

McDade’s condition had lasted and was expected to last at least twelve months and expressed a 

“guarded/limited” prognosis. Id.at 620, 622.

McDade began seeing predoctoral intern Yurio Miyazawa, Ed.M., M.A., on May 13, 2015. 
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Id. at 606. Miyazawa’s treating notes document McDade as having an ongoing anxious mood and 

affect, with treatment often focused on his current functioning, anxiety in social situations, and 

familial relationships. Id. at 599–600, 602, 604–06. Miyazawa noted that McDade experienced 

extreme difficulty discussing his anxiety disorder and dyslexia. Id. at 600. Miyazawa observed

that during their first meeting McDade’s speech was pressured and his legs were jittery. Id. at 

606. Miyazawa completed an Assessment and Diagnosis on June 10, 2015, noting that McDade:

presents with various symptoms of generalized anxiety, including 

restlessness, being easily fatigued, difficulty concentrating, muscle 

tension, and severe sleep disturbance which leaves him sleepdeprived for a few days at times. He also suffers from panic attacks 

with such symptoms as pounding heart, sweating, abdominal distress, 

feeling dizzy, and fear of losing control. These symptoms cause 

clinically significant distress in occupational and social functioning, 

which kept him unemployed for the last few years. Although he made 

tremendous effort to remain composed, his intense anxiety was 

readily apparent to the clinician in the initial meeting. 

Id. at 601. Miyazawa further reported that McDade appeared mildly unhealthy, was severely 

restless and fidgety, had mild rapid speech, moderate depression and sadness, mild attention span 

difficulties and severe anxiety. Id. at 602. Miyazawa diagnosed Generalized Anxiety Disorder. 

Id. at 603. 

On June 25, 2015, after meeting with McDade at least five times, Miyazawa completed a 

Treating Therapist Report. Id. at 607, 612. In the report, Miyazawa opined that McDade was

unable to meet competitive standards regarding his ability to “maintain attention for two hour 

segment,” and “maintain regular attendance and be punctual within customary, usually strict 

tolerances.” Id. at 612. Miyazawa also evaluated McDade as having no useful ability to “[w]ork 

in coordination with or proximity to others without being unduly distracted,” “[c]omplete a normal 

workday and workweek without interruptions from psychologically based symptoms,” “[p]erform 

at a consistent pace without an unreasonable number and length of rest periods,” and “[d]eal with 

normal work stress.” Id. 

B. Consulting Medical Opinions and Administrative Applications

In reports prepared for McDade’s initial disability application, state agency consulting 

psychologists determined that he had the following severe impairments: (1) asthma, (2) anxiety 
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disorders; and (3) affective disorders. Id. at 94. 

On January 9, 2014, David Clay, PhD, assessed McDade as having mild restrictions in 

activities of daily living (“ADL”); mild difficulties in maintaining social functioning; moderate 

difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. 

Id. Dr. Clay wrote that McDade’s “limitations in completing personal care tasks, cooking, 

cleaning, shopping, traveling in public, paying bills, maintaining a residence, getting along with 

others, initiating social interactions, actively participating in group activities, interacting with the 

public, responding appropriately to authority figures, and working cooperatively with coworkers 

are considered mild in nature.” Id. Considering that McDade’s “capacity for concentration, 

persistence, and pace appear[ed] to be moderately impaired by the presence of the aforementioned 

mental impairments,” Dr. Clay opined that McDade “may experience difficulty attending to work 

related responsibilities and [he] may have more than typical difficulty with task completion due to 

difficulties with concentration and pace.” Id. Dr. Clay concluded that McDade was “capable of 

independent, appropriate and effective ADL and social functioning on a sustained basis.” Id. 

Dr. Clay found that McDade was not significantly limited in his ability to: (1) carry out 

very short and simple instructions; (2) carry out detailed instructions; (3) perform activities within 

a schedule; (4) maintain regular attendance, and be punctual within customary tolerances;

(5) sustain an ordinary routine without special supervision; (6) work in coordination with or in 

proximity to others without being distracted by them; and (7) make simple work-related decisions. 

Id. at 97. Dr. Clay concluded McDade was moderately limited in his ability to maintain attention 

and concentration for extended periods, to complete a normal workday and workweek without 

interruptions from psychologically based symptoms, and to perform at a consistent pace without 

an unreasonable number and length of rest periods. Id. 

Dr. Clay considered McDade “to be partially credible as there are clinical indicators that 

appear to be consistent” with the medical record, and answered positively to the question, “[a]re 

the individual’s statements about the intensity, persistence, and functionally limiting effects of the 

symptoms substantiated by the objective medical evidence alone?” Id. at 94–95. 

On January 9, 2014, Maureen Muir, SDM, assessed some environmental limitations and 
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determined that McDade needed to “avoid concentrated exposure” to “[f]umes, odors, dusts, 

gases, poor ventilation, etc.” due to his asthma. Id. at 96. On his initial application, McDade was 

found not disabled and capable of performing “whatever job he is able to find in the national 

economy” with a note that, “[w]hile he does have asthma it does not appear to hinder him from 

working.” Id. at 99. 

In response to McDade’s request for reconsideration, in a report dated March 18, 2014 

consulting psychologist Mercedes DeCubas, PhD, reached substantially the same conclusions at 

Dr. Clay, repeating word for word Dr. Clay’s explanation. Id. at 106–07. On March 31, 2014, Dr. 

R. James Mabry, MD, reached the same conclusion as Muir that McDade needed to “avoid 

concentrated exposure” to “[f]umes, odors, dusts, gases, poor ventilation, etc.” Id. at 109–10. In 

the second report, McDade was once again found to be capable of “whatever job he is able to 

find” and not disabled. Id. at 113. 

C. Administrative Hearing

Administrative Law Judge Mary Parnow (the “ALJ”) held a hearing on August 3, 2015. 

See AR at 56. After clarifying that McDade’s attorney at the time, Rosemary Dady, had submitted 

her brief to the record, the ALJ permitted Dady to give a short opening statement summarizing the 

arguments in her brief. Id. at 60; see also id. at 613–17 (Dady’s pre-hearing brief). Dady argued 

McDade satisfied Listing 12.06 governing anxiety disorders, as he has a “medically documented 

anxiety disorder accommodate [sic] by frequent panic attacks, recurrent severe panic attacks 

manifested by sudden unpredictable onset by intense apprehension, fear, terror, and since [sic] of 

impending doom . . . occurring at least once a week.” Id. at 60. 

In response to Dady’s questions, McDade testified that during his last employment he 

experienced difficulties due to “a lot of diarrhea and stomach pains.” Id. at 64. He subsequently 

experienced a panic attack during which he “felt like blacking out,” and his “heart was pounding.” 

Id. at 65. His boss had to send him to a room, and then called for a taxi to drive him home. Id. 

Looking back, McDade believes he first had a panic attack in 1995, the year his father passed 

away, though the attacks did not impact his functioning until 2013. Id. at 67–68. 

McDade testified that he experienced around three panic attacks a week, with each attack 
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lasting about five minutes. Id. at 63–64. McDade connected his physical symptoms, including 

GERD, asthma and frequent headaches, with his anxiety. Id. at 64. McDade indicated his panic 

attacks do not always have a specific trigger, though he noted stress, including familial stress, 

contributed to the attacks. Id. McDade described his panic attacks as “extremely horrible,” as he 

experiences “heart pounding, dizziness . . . [and] really feel[s] like throwing up.” Id. at 63. Due to 

his panic attacks, McDade is unable to concentrate and focus on tasks. Id. at 65. For example, he 

struggles when cooking, has a hard time calming himself down and is forgetful. Id. 

McDade testified that he is no longer as social as he once was, and he doesn’t attend family 

functions or other similar gatherings with large numbers of people. Id. He no longer attends 

church because, during the baptism of his sister’s child, he experienced a panic attack and had to 

leave because he “couldn’t breathe, almost like fainting.” Id. at 67. McDade testified that he 

sometimes leaves the house with his daughter or his wife. Id. at 66. He additionally goes to the 

gym two to three times a week, though he is can only tolerate going during off-peak times and if 

he feels any anxiety, he leaves. Id. at 68. While at the gym, he tries to use the Jacuzzi as it helps 

relax him and calms his nerves. Id. 

McDade stated that speaking with his therapist was “[a] little bit helpful.” Id. at 67. He 

testified that his medications cause him to experience dry mouth, sometimes stomach pains, and a 

little bit of dizziness. Id. at 68. 

After Dady completed her questioning of Mr. McDade, Dady questioned Jennifer McDade, 

Mr. McDade’s wife. Id. at 69. Ms. McDade stated that she first met Mr. McDade in October 

2002 when they began dating. Id. Ms. McDade testified that Mr. McDade began to become ill at 

work in June 2013. Id. at 70. After a series of tests, Mr. McDade was diagnosed with generalized 

anxiety and panic attacks. Id. at 71. Ms. McDade stated that Mr. McDade appears to be 

depressed, has a lower libido, and cries more often than previously. Id. at 75–76. Ms. McDade 

described Mr. McDade as drowsy and lacking emotional affect due to his medication. Id. at 74–

75. 

Ms. McDade stated that prior to his increase in anxiety and panic attacks, Mr. McDade was 

able to do everything, from taking care of their daughter to working a highly skilled job. Id. at 70. 
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Mr. McDade previously engaged in sports with friends, but now when visiting friends, Ms. 

McDade has to ascertain how many people will be there as Mr. McDade cannot be around large 

groups. Id. at 72. Mr. McDade still attends his daughter’s sporting events, as he can retreat to a 

grassy area or the car to lay down if he feels anxious. Id. Ms. McDade stated that Mr. McDade 

will go to the store with their daughter, who was eleven years old at the time and helped Mr. 

McDade remember to take basic things like his phone and wallet with him. Id. at 73. Ms. 

McDade cannot give Mr. McDade too much money because he will lose it. Id. 

Ms. McDade cannot ask Mr. McDade to complete too many tasks around the house, as he 

will become frustrated and forget, so she has to write things down on a list for him. Id. For 

example, Mr. McDade will start doing laundry but not complete it. Id. Ms. McDade stated that 

Mr. McDade can only make things like sandwiches but is unable to cook because he is forgetful 

and may burn food. Id. at 75. Ms. McDade testified that Mr. McDade cannot drive when there is 

a lot of traffic and can only drive close to home, though even in familiar areas, Mr. McDade will 

miss his stops. Id. at 74. Ms. McDade opined that Mr. McDade’s stomach problems, difficulty 

concentrating and inability to take on more than one task would make it difficult for him to hold 

down a job. Id. at 76. 

The ALJ subsequently questioned Mr. McDade about his previous work positions as a 

records clerk, records coordinator, and office clerk. Id. at 77–79. The ALJ then questioned 

vocational expert Robert Cottle (the “VE”). Id. at 79–83. The ALJ first presented the 

hypothetical scenario of someone with McDade’s age, education, and work experience, who must 

avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, is “able to 

understand, retain, and remember simple instructions, and [can] only occasional[ly have] contact 

with the general public.” Id. at 81–82. The VE testified that such a person would not be able to 

work in the previous positions held by McDade. Id. at 82. The VE stated that such a person could 

work in a number of jobs that are relatively common in both California and the United States as a 

whole. Id. The ALJ’s second hypothetical described an individual with the same limitations as 

the first hypothetical but who can only accept instructions at the beginning of a shift and cannot 

work as part of a team or one-on-one with supervisors. Id. at 82–83. The VE testified that there 
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would be no jobs available for such a person. Id. at 83. 

Dady asked the VE whether someone with the limitations reported by therapist Miyazawa2

could find work if they were unable to maintain attention for two hour segments, and the VE 

testified that such a person would be precluded from all work. Id. The VE also stated a person 

having the same limitations who was also unable to maintain regular attendance or be punctual 

within customary, usually strict, tolerances, would be precluded from all work. Id. Dady also 

asked if there would be jobs available for someone who was unable to perform at a consistent pace 

without more than the allowed number of rest breaks, and the VE testified that if the person were 

precluded from 20 percent of the work tasks, there would be no jobs available. Id. at 87. 

D. Regulatory Framework for Determining Disability

1. Five-Step Evaluation Process

The Commissioner uses a “five-step sequential evaluation process” to determine if a 

claimant is disabled. 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ must determine if the 

claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(I). If so, the 

ALJ determines that the claimant is not disabled and the evaluation process stops. If the claimant 

is not engaged in substantial gainful activity, then the ALJ proceeds to step two.

At step two, the ALJ must determine if the claimant has a “severe” medically determinable 

impairment. An impairment is “severe” when it “significantly limits [a person’s] physical or 

mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not have 

a “severe” impairment, then the ALJ will find that the claimant is not disabled. If the claimant has 

a severe impairment, the ALJ proceeds to step three.

At step three, the ALJ compares the claimant’s impairment with a listing of severe 

impairments (the “Listing”). See 20 C.F.R. § 404, subpt. P, app. 1. If the claimant’s impairment 

 

2 Miyazawa assessed McDade as unable to meet competitive standards regarding his ability to 

“maintain attention for two hour segment” and “maintain regular attendance and be punctual 

within customary, usually strict tolerances.” AR at 612. Miyazawa also evaluated McDade to 

have no useful ability to “[w]ork in coordination with or proximity to others without being unduly 

distracted,” “[c]omplete a normal workday and workweek without interruptions from 

psychologically based symptoms,” “[p]erform at a consistent pace without an unreasonable 

number and length of rest periods,” and “[d]eal with normal work stress.” Id.
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is included in the Listing, then the claimant is disabled. The ALJ will also find a claimant 

disabled if the claimant’s impairment or combination of impairments equals the severity of a listed 

impairment. If a claimant’s impairment does not equal a listed impairment, then the ALJ proceeds 

to step four.

At step four, the ALJ must assess the claimant’s residual function capacity (“RFC”). An 

RFC is “the most [a person] can still do despite [that person’s] limitations” caused by that person’s 

impairments and related symptoms. 20 C.F.R. § 404.1545(a)(1). The ALJ then determines 

whether, given the claimant’s RFC, the claimant would be able to perform the claimant’s past 

relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is “work that [a person] has 

done within the past fifteen years, that was substantial gainful activity, and that lasted long enough 

for [the person] to learn how to do it.” 20 C.F.R. § 404.11560(b)(1). If the claimant is able to 

perform past relevant work, then the ALJ finds that the claimant is not disabled. If the claimant is 

unable to perform past relevant work, then the ALJ proceeds to step five.

Normally, at step five, the burden shifts from the claimant to the Commissioner. Johnson 

v. Chater, 101 F.3d 178, 180 (9th Cir. 1997). The Commissioner has the burden to “identify 

specific jobs existing in substantial numbers in the national economy that the claimant can 

perform despite her identified limitations.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). 

If the Commissioner is able to identify such work, then the claimant is not disabled. If the 

Commissioner is unable to do so, then the claimant is disabled. 20 C.F.R. § 404.1520(g)(1).

2. Supplemental Rules for Determining Mental Disability

The Social Security Administration has supplemented the five-step general disability 

evaluation process with regulations governing the evaluation of mental impairments at steps two 

and three of the five-step process. See generally 20 C.F.R. § 404.1520a;3see also Clayton v. 

 

3 The parties’ briefs do not address amendments to the regulations and listings pertaining to mental 

impairments that became effective after the ALJ’s decision but before McDade filed the present 

action. With no party arguing that the new versions of those regulations and listings should apply 

here, the Court assumes for the purpose of this order that the versions of the mental impairment 

regulations and listings in effect at the time of the ALJ’s decision continue to apply. Citations to 

all such regulations and listings therefore refer to those versions. McDade separately argues that 

the Court should apply newer regulations related to sources other than excepted medical sources 

(here, Miyazawa), see, e.g., Reply at 7, but the Court does not reach that issue because the ALJ’s 
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Astrue, No. CIV 09-2282-EFB, 2011 WL 997144, at *3 (E.D. Cal. Mar. 17, 2011) (citing Maier v. 

Comm’r of Soc. Sec. Admin., 154 F.3d 913 (9th Cir. 1998)). First, the Commissioner must 

determine whether the claimant has a medically determinable mental impairment. 20 C.F.R. 

§ 404.1520a(b)(1). Next, the Commissioner must assess the degree of functional limitation 

resulting from the claimant’s mental impairment with respect to four broad functional areas: 

(1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and 

(4) episodes of decompensation. 20 C.F.R. § 404.1520a(b)(2), (c). Finally, the Commissioner 

must determine the severity of the claimant’s mental impairment and whether that severity meets 

or equals the severity of a mental impairment listed in Appendix 1. 20 C.F.R. § 404.1520a(d). If 

the Commissioner determines that the severity of the claimant’s mental impairment meets or 

equals the severity of a listed mental impairment, the claimant is disabled. See 20 C.F.R. 

§ 404.1520(a)(4)(iii). Otherwise, the evaluation proceeds to step four of the general disability 

inquiry. See 20 C.F.R. § 404.1520a(d)(3).

Appendix 1 provides impairment-specific “Paragraph A” criteria for determining the 

presence of various listed mental impairments, but all listed mental impairments share certain 

“Paragraph B” severity criteria in common (and some have alternative “Paragraph C” severity 

criteria). See generally 20 C.F.R. § 404, Subpt. P, App. 1 at 12.00. Therefore, any medically 

determinable mental impairment—i.e., one that satisfies the Paragraph A criteria of one or more 

listed mental impairments—is sufficiently severe to render a claimant disabled if it satisfies the 

general Paragraph B criteria, which require that the claimant suffers at least two of the following: 

(1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social 

functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or 

(4) repeated episodes of decompensation, each of extended duration. See id. A “marked” 

limitation is one that is “more than moderate but less than extreme” and “may arise when several 

activities or functions are impaired, or even when only one is impaired, as long as the degree of 

 

failure to credit Dr. Littlefield’s opinions is reason enough to reverse, and neither party argues that 

the applicable standard for evaluating the opinion of a treating physician has meaningfully 

changed as a result of any amendments.
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limitation is such as to interfere seriously with [a claimant’s] ability to function independently, 

appropriately, effectively, and on a sustained basis.” Id. at 12.00C.

E. The ALJ’s Decision

At step one of the five-step disability determination, the ALJ concluded that McDade had 

not engaged in substantial gainful activity since the alleged onset of his disability on July 5, 2013. 

AR at 25. At step two, the ALJ concluded that McDade had established that his anxiety disorder, 

panic disorder and asthma were all severe impairments because each significantly limits 

McDade’s ability to perform basic work activities. Id. The ALJ concluded that McDade’s 

depression was non-severe because the records indicate that anxiety and panic attacks are his 

primary mental diagnoses. Id.

At step three, the ALJ concluded that McDade’s impairments did not meet or equal any 

listing in the Adult Listing of Impairments, specifically rejecting listings 12.04 and 12.06. Id. at 

26. The ALJ noted “Paragraph B” is satisfied by a showing of mental impairment in at least two 

of the following: marked restriction of activities of daily living; marked difficulties in maintaining 

social functioning; marked difficulties in maintaining concentration, persistence or pace; or 

repeated episodes of decompensation, each of extended duration. Id. The ALJ found that 

McDade’s medical records indicated no restrictions in activities of daily living and in 

concentration, persistence or pace, moderate difficulties in social functioning, and no episodes of 

decompensation of extended duration. Id. The ALJ also considered and rejected finding a 

disability under “Paragraph C” criteria for 12.04, which require repeated episodes of 

decompensation, a residual disease process that has resulted in such marginal adjustment that a 

minimal increase in mental demands or environment would be predicted to cause decompensation,

or an inability to function outside a highly supportive living arrangement. Id. The ALJ also found 

McDade’s medical records did not indicate that he is completely unable to function independently 

outside the area of his home due to his anxiety, thus he did not meet the “Paragraph C” 

requirements for listing 12.06. Id. 

At step four, the ALJ concluded that McDade had the residual functional capacity to 

perform a full range of work at all exertional levels but with the following nonexertional 
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limitations: McDade is “capable of performing simple, repetitive tasks, can occasionally work 

with the general public, and must avoid concentrated exposure to pulmonary irritants.” Id. at 27. 

In determining McDade’s residual functional capacity, the ALJ followed a two-step 

procedure. Id. First, the ALJ determined McDade had medically determinable impairments that 

could reasonably be expected to produce his symptoms. Id. Second, the ALJ evaluated the 

intensity, persistence, and limiting effects of McDade’s symptoms to determine the extent to 

which the symptoms limit McDade’s functioning. Id. The ALJ noted that, “whenever statements 

about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not 

substantiated by objective medical evidence, [she] must make a finding on the credibility of the 

statements based on a consideration of the entire case record.” Id. The ALJ determined that 

although McDade’s medically determinable impairments could reasonably be expected to cause 

his symptoms, his “statements concerning the intensity, persistence and limiting effects of these 

symptoms are not entirely credible.” Id. at 28. According to the ALJ, “[t]he medical evidence of 

record does not provide strong support for the claimant’s allegations of disabling symptoms and 

limitations,” and “the objective medical findings do not support the existence of limitations greater 

than those determined in the residual functional capacity.” Id.

In making this determination, the ALJ summarized McDade’s medical history, 

emphasizing the opinions of Dr. Littlefield, and pre-doctoral intern Miyazawa. Id. at 28–32. 

Because the ALJ’s conclusions regarding the weight given to Dr. Littlefield’s opinions are central 

to the outcome of this appeal, the ALJ’s paragraph addressing Dr. Littlefield’s opinion warrants 

reproduction in full: 

In assessing the residual functional capacity, I am according little 

weight to the August 10, 2015 medical source statement from Dr. 

Littlefield (Ex. 15F). Dr. Littlefield reported that the claimant’s 

current GAF was 50 and that his highest GAF in the past year was 50 

to 55 (Id. at 2). Dr. Littlefield opined that the claimant has marked 

restriction of activities of daily living, marked difficulties maintaining 

social functioning, frequent deficiencies of concentration, persistence 

or pace, and repeated (3 or more) episodes of deterioration or 

decompensation in work or work-like settings (Id. at 4). Dr. Littlefield 

further opined that the claimant would likely be absent from work 

more than 3 times a month and that his mental condition has caused a 

substantial loss of ability to understand, remember and carry out 

simple instructions, respond appropriately to supervision, coworkers 
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and usual work situations, and deal with changes in a routine work 

setting (Id. at 5). However, Dr. Littlefield’s opinion is inconsistent 

with his underlying treatment records, which indicate that the 

claimant had decreased symptoms with use of his medications and 

that Dr. Littlefield rated the claimant’s GAF score at 60 at most visits 

(Exhibit 10F/2, 3, 6). While Dr. Littlefield did rate the claimant’s 

GAF at 50 on occasion (Exhibit 12F/3), this was during a visit when 

the claimant was experiencing an increase in his anxiety symptoms. 

The preponderance of the medical evidence indicates that the 

claimant has received GAF scores ranging from 51 to 60, indicating 

moderate symptoms (Exhibits 4F/2, 3, 6; 8F/8, 21, 37) [sic4]. 

Id. at 31–32 (citing AR at 618–622, 593–94, 597, 610, 504–05, 508, 535 548, 564). 

The ALJ’s conclusions regarding the weight given to Miyazawa’s opinions are also central 

to the parties’ arguments, although as discussed below the Court does not reach the question of 

whether the ALJ erred with respect to these opinions:

I am according also according [sic] little weight to the July 25, 2015 

opinion of Yurio Miyazawa, Ed.M, a predoctoral intern therapist 

(Exhibit 13F/2). Ms. Miyazawa opined that the claimant is unable to 

meet competitive standards in the abilities to maintain attention for 

two-hour segment, maintain regular attendance and be punctual 

within customary, usually strict tolerances. Additionally, Ms. 

Miyazawa opined that the claimant has no useful ability to function 

in the abilities to work in coordination with or proximity to others 

without being unduly distracted, to complete a normal workday and 

workweek without interruptions from psychologically based 

symptoms, to perform at a consistent pace without an unreasonable 

number and length of rest periods, and to deal with normal work 

stress. However, Ms. Miyazawa’s opinion is not supported by the 

underlying treatment records, which do not substantiate the foregoing 

level of limitations. In April 2015, Ms. Miyazawa reported that 

mental status examination revealed that the claimant was within 

normal limits in most categories (Exhibit 11F/5). Ms. Miyazawa

reported that the claimant had mild impairments in terms of appearing 

healthy, rapid speech and attention span, had moderate impairment in 

terms of depression, sadness, and had severe impairment in terms of 

anxiety and being restless, fidgety (Id.). Additionally, I note that an 

intern therapist is not an acceptable medical source under the 

Regulations (20 CFR 404.1513(a) [sic]. 

Id. at 32 (citing AR at 612, 602). 

The ALJ concluded McDade’s subjective complaints as to the severity of his symptoms 

were not fully credible, and that the “record contains significant inconsistencies and does not 

 

4 The ALJ’s citations to Exhibit 4F medical records indicating that the claimant received GAF 

scores ranging from 51 to 60 are incorrect. Exhibit 4F/2 (AR at 504) does not state a GAF score; 

Exhibit 4F/3 (AR at 505) documents a GAF score of 50; Exhibit 4F/6 (AR at 508) does not state 

GAF score, although 4F/7 (AR at 509) documents a score of 51. 
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support the level of restrictions alleged.” Id. The ALJ noted that:

while the claimant testified that he is not social and rarely goes out, 

he also testified that he goes to the gym 2 to 3 times a week, although 

during off hours, and uses the Jacuzzi. Additionally, the record 

indicates that the claimant is able to attend his children’s sporting 

events and enjoys himself (Exhibit 12F/2). The claimant’s wife, 

Jennifer McDade, testified that the claimant is able to walk to the store 

to buy milk and eggs and he can drive, although he misses exits. 

Additionally, I note that the claimant was able to take a one-month 

vacation to Florida and reported having fun (Exhibit 8F/2). All of the 

above activities seem to suggest that the claimant is able to leave his 

house quite a bit. 

Id. at 32–33 (citing AR at 609, 529). 

The ALJ accepted the VE’s testimony that McDade was unable to perform past relevant 

work as a “Director, Records Management” and as an “Administrative Clerk.” Id. at 33. 

Finally at step five, the ALJ credited the VE’s testimony that work would be available for 

someone with the RFC that she had assessed (which corresponded to the first hypothetical that she 

presented to the VE at the hearing). Id. at 34. The ALJ concluded that McDade was capable of 

working as Marker II, Plastics Inspector, and Table Worker, and thus McDade was not disabled 

within the meaning of Social Security regulations. Id.

F. The Parties’ Argument

1. McDade’s Motion for Summary Judgement

McDade’s motion was filed late, after the Court issued an order to show cause why the 

case should not be dismissed for failure to prosecute. The quality of the briefs from McDade’s 

counsel Lawrence D. Rohlfing is unacceptable. Portions of the briefs are incoherent, and there are 

a number of indications that Rohlfing failed to read the record closely or proofread his own briefs 

before filing them. For example:

 “McDade files this brief on the grounds that there are no issues of triable fact and 

that M [sic] is entitled to judgment as a matter of law.” Notice of Mot. (dkt. 15) 

at 1.

 “McCade [sic5] completed a mental health survey endorsing . . . not being able to 

 

5 Across more than two pages of his summary of the medical evidence, Rohlfing misspells his 

client’s name, using “McCade” rather than “McDade.” Pl.’s Mot. at 5–7. In one instance in the 
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use stopper control worrying nearly every day . . . .” Pl.’s Mot. (dkt. 15) at 5.

 “Resuming medication allowed him to sleep better; had no increased anxiety or 

panicking feelings with BusPar; and was on vacation.” Id.

 “Jessica land [sic], PsyD, diagnosed date [sic] as having a panic disorder.” Id.

 “On mental status examination, Dr. Littlefield noted and [sic] anxious mood; and 

affect with mild anxiety; good to fair judgment and insight. Id. rule [sic] out 

generalized anxiety disorder with a global assessment of functioning of 60. Dr. 

Littlefield change [sic] the prescription . . . .” Id. at 7.

 “The period from July 2013 through August 2015 remained a temporal span during 

which McDade wasn’t [sic, possibly intended as ‘was in’] self-imposed isolation.” 

Id. at 12.

 “Assuming McDade did not meet listing 12.06, he would lack the ability to engage 

in substantial gainful activity is absenteeism would preclude substantial gainful 

activity.” Id. at 13.

 “Her Littlefield made similar findings.” Id.

 “The Commissioner draws attention to GAF scores of 60 or is Dr. Littlefield 

identified GAF scores in his medical source statement between 50-55.” Reply (dkt. 

25) at 5.

 “Miyzazwa [sic6] may be express [sic] an opinion that McDade lack [sic] the ability 

to engage in the competitive standards for maintaining attention . . . .” Id. at 6.

The Court expects submissions from licensed attorneys to adhere to at least minimal 

standards of grammar and comprehensibility. Counsel is admonished that any future filing from 

the Law Office of Lawrence D. Rohlfing, in this or any other case, that fails to meet those 

standards may be stricken sua sponte, and that extreme deficiencies may result in referral to the 

Court’s Standing Committee on Professional Conduct.

 

reply brief, Rohlfing refers to his client as “McBain.” Reply at 6.

6 Rohlfing repeatedly misspells the name of one of the two medical professionals primarily at 

issue, Yurio Miyazawa, as “Miyzazwa.” E.g., Mot. at 9; Reply at 6–8.
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McDade argues that the ALJ erred in: (1) failing to properly weigh and credit Dr. 

Littlefield opinion regarding the severity of his anxiety and panic disorders, Pl.’s Mot. at 10; (2) 

failing to properly weigh and credit pre-doctoral intern Miyazawa’s opinions regarding the 

severity of his anxiety and panic disorders, id.; and (3) finding that McDade’s impairments did not 

meet a listing, id. at 12–13. 

McDade contends that the ALJ failed to meet the standard necessary to reject a treating 

physician’s opinion. Id. at 11. According to McDade, the ALJ must articulate clear and 

convincing reasons for rejecting Dr. Littlefield’s opinion if uncontradicted by substantial evidence 

in the record, or specific and legitimate reasons if contradicted by substantial evidence in the 

record. Id. (citing Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)). McDade contends that 

the ALJ’s stated reasons for giving limited weight to Dr. Littlefield’s opinions—that the 

deterioration noted in Dr. Littlefield’s August 2015 assessment of McDade’s “represented a 

singular event and that McDade had generally experienced a global assessment of functioning in 

the moderate range, between 51 and 60”—are illegitimate. Id. at 11–12. In making this argument, 

McDade cites the Commissioner’s response to comments on the 2000 revision of mental 

impairment evaluation criteria, which requested that the Social Security Administration apply 

GAF scores to the disability adjudication process. Id. at 12 (quoting 65 Fed. Reg. 50746, 50765 

(August 21, 2000)). The Commissioner stated: 

We did not adopt the comment. We did not mention the GAF scale to 

endorse its use in the Social Security and SSI disability programs, but 

to indicate why the third sentence of the second paragraph of the

proposed 12.00D stated that an individual’s medical source “normally 

can provide valuable additional functional information.” To assess 

current treatment needs and provide a diagnosis, medical sources 

routinely observe and make judgements about an individual’s 

functional abilities and limitations. The GAF scale, which is 

described in the DSM–III–R (and the DSM–IV), is the scale used in 

the multiaxial evaluation system endorsed by the American 

Psychiatric Association. It does not have a direct correlation to the 

severity requirements in our mental disorders listings. 

65 Fed. Reg. 50746, 50764–50765 (Aug. 21, 2000). According to McDade, the listings described 

by the Commissioner in the foregoing quote remained in effect through January 16, 2017. Id. at 

12 (citing POMS DI 34232.011). McDade states that the current listings did not adopt the GAF 
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score as correlative or informative to disability. Id. (citing 20 C.F.R. part 404, subpart P, 

Appendix 1, Listing 12.00 and 12.06). Thus, McDade argues the “ALJ articulated an illegitimate 

reason for rejecting the opinions of Dr. Littlefield.” Id. 

McDade next argues that the ALJ failed to credit the opinions of pre-doctoral 

psychological intern Miyazawa and “must explain the weight given to the pre-doctorate 

psychological intern with two master’s degrees.” Id. at 13–14 (citing AR at 32; 20 C.F.R 

§ 404.1527(f)(2) (2017)). Although Miyazawa is not an “acceptable medical source,” McDade 

argues that “[t]he Commissioner anticipates that opinions from sources other than acceptable 

medical sources may provide better and more detailed information than is available from or even 

contradicting treating sources.” Id. at 13 (citing 20 C.F.R. § 404.1527(f)(1) (2017)). 

According to McDade, the ALJ’s determination that Miyazawa’s opinion “lacked the 

support of underlying treatment records” is incorrect. Id. McDade notes that “Miyazawa 

described McDade as severely restless and fidgety with severe anxiety,” and argues that Dr. 

Littlefield made similar findings. Id. (citing AR at 602, 609). To demonstrate “[t]he longitudinal 

record supports the findings of Miyazawa,” McDade cites Dr. Littlefield’s inability to find the 

correct medication combination for McDade, as well as McDade’s “appetite disturbance, sleep 

disturbance, physical manifestations, palpitations, cognitive dysfunction, muscle tension and 

gastrointestinal distress.” Id. (citing AR at 505, 520, 513, 576, 594, 593, 597, 609, 610). 

McDade also argues that he meets “Paragraph C” criteria for listing 12.06 according to Dr. 

Littlefield’s opinion in which he found “McDade had marked impairments in activities of daily 

living; social functioning; frequent deficiencies of concentration, persistence, or pace; and 

repeated episodes of deterioration or decompensation.” Id. at 12–13 (citing AR at 621). 

According to McDade, he “cannot function outside of the home without assistance,” and has been 

in self-imposed isolation from July 2013 to August 2015, experiencing “severe anxiety” and 

having “stopped working, a primary trigger for his anxiety and fear.” Id. at 12–13. McDade 

argues that he “cannot engage in gainful activity because he meets the listing.” Id. at 13. 

If the Court were to find that McDade does not meet listing 12.06, McDade contends that 

he lacks “the ability to engage in substantial gainful activity is [sic] absenteeism would preclude 
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substantial gainful activity.” Id. According to McDade, “substantial gainful activity implies and 

requires a sustained capacity to engage in work activity.” Id. at 14 (citing Social Security Ruling 

96-8p). He argues that “a sporadic capacity of months here and there does not establish the ability 

to engage in substantial gainful activity.” Id. (citing Gatliff v. Comm’r of Soc. Sec. Admin., 172 

F.3d 690, 692–93 (9th Cir. 1999)). 

McDade asks the Court to credit the opinions of Dr. Littlefield and Miyazawa as true. Id. 

(citing Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). According to McDade, the record 

is complete, the ALJ failed to provide legally sufficient reasons for rejecting Dr. Littlefield and 

Miyazawa’s opinions, which require a finding of disability, and thus the Court should reverse and 

order the payment of benefits. Id. (citing Trevizo v. Berryhill, 871 F.3d 664 (9th Cir. 2017)). 

2. The Commissioner’s Cross-Motion for Summary Judgement

The Commissioner argues that the ALJ properly rejected the opinions of Dr. Littlefield and 

predoctoral therapist intern Miyazawa, while giving greater weight to the state agency 

psychological consultants. Comm’r’s Mot. (dkt. 22) at 1–2. 

The Commissioner argues that the ALJ “may disregard the treating physician’s opinion 

whether or not that opinion is contradicted.” Id. at 2. According to the Commissioner, substantial 

evidence supports the ALJ’s conclusion that Dr. Littlefield’s August 2015 report was inconsistent 

with his treatment notes. Id. at 3. The ALJ first rejected Dr. Littlefield’s opinion because the 

underlying treatment records “indicate[d] that the claimant had decreased symptoms with use of 

his medications.” Id. (citing AR at 32). The Commissioner points out two examples in Dr. 

Littlefield’s records in which McDade’s symptoms decreased as a result of his medications. Id.

(citing AR at 31, 593, 609). The Commissioner also cites the treatment notes of Naureen Khan, 

M.D., from August 2013 in which McDade reported “having fun with his family while 

vacationing in Florida, and that he was not having depressive symptoms after he resumed Ativan 

for anxiety.” Id. (citing AR at 30, 529). 

Second, according to the Commissioner, the ALJ properly rejected Dr. Littlefield’s opinion 

due to the inconsistency between his August 2015 report, which stated McDade’s highest GAF

score in the year prior was 50 to 55, and his treating notes, which documented GAF scores of 60. 
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Id. (citing AR at 32, 619). The Commissioner argues that this “difference is significant because a 

GAF score of 50 indicates serious symptoms or impairment while a score of 51-60 reflects 

moderate symptoms or impairment.” Id. (citing Diagnostic and Statistical Manual of Mental 

Disorders, 32 (4th ed. Am. Psychiatric Ass’n 1994)). 

In arguing that substantial evidence in the record supports “the ALJ’s recognition of the 

inconsistent GAF scores,” the Commissioner cites multiple medical reports which assess 

McDade’s GAF to be 51 to 60. Id. (citing AR at 564, 535, 548, 565). The Commissioner states 

that the two instances of lower scores—scores of 51 and 50 in August 2013 and September 2013 

respectively—occurred “when Plaintiff increased symptoms after trying to wean himself off 

Ativan for anxiety.” Id. (citing AR at 30, 509, 505). The Commissioner also cites Dr. Littlefield’s 

GAF assessments of 60 from December 2014, January 2015, and March 2015. Id. at 3–4 (citing 

AR at 31, 593–94, 597, 619). 

Further, the Commissioner argues that McDade misstates the Commissioner’s position 

regarding the use of GAF scores in determining a disability claim. Id. at 4 (citing Pl.’s Mot. at 

12). Although “[t]he Commissioner does not consider single GAF scores to correlate to workrelated functional limitations in Social Security disability claims, nor are they determinative of 

disability,” according to the Commissioner, the ALJ rejected Dr. Littlefield’s opinion because of 

the inconsistency in Dr. Littlefield’s GAF scores, not the GAF scores themselves. Id. The 

Commissioner argues this “discrepancy was a valid reason to reject the questionnaire because Dr. 

Littlefield appeared to exaggerate Plaintiff’s condition.” Id. (citing 20 C.F.R. § 404.1527(c)(3)–

(4)). The Commissioner contends that “the GAF scores in the record generally indicated only a 

moderate level of impairment while the questionnaire indicated much more extreme limitations.” 

Id.

The Commissioner additionally argues that the ALJ reasonably rejected the July 2015 

report from pre-doctoral intern Miyazawa. Id. at 5. According to the Commissioner, the ALJ was 

only required to give germane reasons for discrediting Miyazawa’s report because Miyazawa is 

not an acceptable medical source. Id. (citing 20 C.F.R. § 404.1513(a), (d); Molina v. Astrue, 674 

F.3d 1104, 1111 (9th Cir. 2012)). The Commissioner argues that the ALJ’s finding that 
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Miyazawa’s report conflicted with Miyazawa’s treatment records is a germane reason for rejecting 

lay witness testimony. Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis 

v. Apfel, 236 F.3d 503, 511 (9th Cir. 2011)). The Commissioner states that “[t]he Court must 

affirm [the ALJ’s interpretation] even where there are two possible interpretations to draw from a 

record, and the ALJ’s interpretation is reasonable.” Id. (citing Burch v. Barnhart, 400 F.3d 676, 

679 (9th Cir. 2005)). According to the Commissioner, the ALJ’s rejection of Miyazawa’s opinion 

was based on “a reasonable interpretation of the record for which there is supporting substantial 

evidence.” Id. at 6. The Commissioner cites Miyazawa’s notes from April 2015 in which 

Miyazawa reported that McDade’s mental status examination was within normal limits in most 

categories. Id. at 5 (citing AR at 32, 602). The Commissioner argues that Miyazawa’s 

determination of McDade’s impairments, and that he “‘responded well to intervention’” in 

therapy, further supports the ALJ’s interpretation. Id. (citing AR at 32, 600, 602–06). 

The Commissioner finally argues that if the Court should find reversible error, it should 

remand the case for further administrative proceedings. Id. at 6. The Commissioner contends that 

the credit-as-true rule—Ninth Circuit case law that in some circumstances allows a court to credit 

evidence and award benefits based on that evidence if it finds that the agency did not properly 

evaluate that evidence in the first instance—is invalid; and even if valid, the Commissioner argues 

it does not apply here. Id. According to the Commissioner, the credit-as-true rule requires courts 

to assess “whether further administrative proceedings would be useful and whether there are 

outstanding issues that must be resolved before a finding of disability may ensue.” Id. (citing 

Treichler v. Comm’r, 775 F.3d 1090, 1101, 1105 (9th Cir. 2014)). The Commissioner argues that 

the Court cannot apply the credit-as-true rule here as “crediting the disputed medical opinion 

evidence would create a conflict with the other opinions of Drs. Clay and DeCubas upon which 

the ALJ relied.” Id. at 7 (citing AR at 32; Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 

2016)). The Commissioner argues that “the record contains serious doubt . . . that Plaintiff is 

actually disabled,” particularly in light of McDade’s failure to challenge the ALJ’s assessment that 

McDade’s own testimony was not credible due to the ALJ’s finding of inconsistencies between

McDade’s testimony and the medical record. Id.
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3. Reply

McDade’s reply acknowledges that the ALJ is not bound by opinions of a treating 

physician; however, he argues that the ALJ must give such opinion more weight under 20 C.F.R. 

§ 404.1527(c)(2)(2017). Reply at 4. McDade argues that the ALJ is required to give a statement 

of specific and legitimate reasons supported by substantial evidence when rejecting a treating 

physician’s opinion. Id. (citing Lester, 81 F.3d at 830–31). 

According to McDade, the “presence of occasional GAF scores that imply a lack of an 

ability to sustain work activity [even in conjunction with] with frequent GAF scores that imply the 

presence of an ability to sustain work activity does not permit the ALJ to find that the claimant has 

the sustained capacity to engage in work activity.” Id. (citing Social Security Ruling 96-8p

(statement of purpose ¶ 1)). McDade defines “sustained capacity for work” as being able “to 

engage in work-related mental activities in a work setting . . . on a regular and continuing basis, 

eight hours a day, five days a week, or an equivalent work schedule.” Id. at 4–5 (citing Social 

Security Ruling 96-8p (statement of purpose ¶ 1)). 

Addressing the inconsistency in Dr. Littlefield’s GAF scores, McDade argues that 

“[w]hether the upper end of the score falls at 51 or 60, the distinction lacks a difference.” Id. at 5. 

According to McDade, Dr. Littlefield’s opinion about McDade’s sustained capacity to work is not 

undermined by Dr. Littlefield’s three GAF assessments of 60 and other providers’ assessments of 

scores ranging from 51–60, “[t]hose 10 points fall within the range described by standard 

diagnostic methodology of moderate symptoms or difficulties in functioning.” Id.

McDade further argues that this inconsistency in Dr. Littlefield’s record does not 

demonstrate that he exaggerated his symptoms. Id. McDade notes that the ALJ did not “cite any 

evidence of a medical practitioner expressing the opinion that McDade appeared to exaggerate his 

condition.” Id.

According to McDade, the ALJ’s reliance on GAF scores in rejecting Dr. Littlefield’s 

opinions violates agency policy. Id. at 6. McDade asks the court to credit the opinions of Dr. 

Littlefield as true and to find McDade disabled. Id. at 6 (citing Vasquez v. Astrue, 572 F.3d 586, 

594 (9th Cir. 2009); Garrison, 759 F.3d at 995). 
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McDade argues that the Commissioner applies the incorrect standard required to explain

the rejection of Miyazawa’s opinion. Id. at 6 (citing Comm’r Mot. at 5). According to McDade,

the Commissioner relies on “the regulations and rulings in effect at the time of the ALJ decision”;

however, the March 27, 2017 regulations “apply on their face to the review of all pending claims.” 

Id. at 4 (citing Comm’r’s Mot. at 2; 20 C.F.R. § 404.1527(2017)). McDade argues that courts 

should apply applicable amended regulations to pending cases. Id. at 7 (citing Combs v. Comm’r 

of Soc. Sec., 459 F.3d 640, 647–49)). According to McDade, under the 2017 amended regulation, 

an ALJ must explain the weight given to non-acceptable medical source opinions in a sufficiently 

specific way to allow the “‘reviewer to follow the adjudicator’s reasoning.’” Id. at 6 (quoting 20 

C.F.R. § 4040.1527(f)(2)). 

Under this standard, McDade argues that the ALJ failed to explain why Miyazawa’s 

finding that McDade was “severely restless and fidgety; having severe anxiety; and having 

moderate depression” on mental status examination was inconsistent with Miyazawa’s finding that 

McDade lacked the ability to work in coordination with or proximity to others; to complete a 

normal workday or workweek without interruptions from his anxiety-based symptoms; to perform 

at a consistent pace; or to deal with work stress. Id. McDade argues that “[s]evere anxiety as the 

only symptom can be debilitating” and that “the presence of an otherwise normal mental status 

examination” does not negate Miyazawa’s opinion. Id. at 6. 

III. ANALYSIS

A. Legal Standard

1. Judicial Review of Social Security Determinations

District courts have jurisdiction to review the final decisions of the Commissioner and 

have the power to affirm, modify, or reverse the Commissioner’s decisions, with or without 

remanding for further hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). 

When asked to review the Commissioner’s decision, the Court takes as conclusive any 

findings of the Commissioner which are free from legal error and supported by “substantial 

evidence.” 42 U.S.C. § 405(g). Substantial evidence is “such evidence as a reasonable mind 

might accept as adequate to support a conclusion,” and it must be based on the record as a whole. 
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Richardson v. Perales, 402 U.S. 389, 401 (1971). “‘Substantial evidence’ means more than a 

mere scintilla,” id., but “less than a preponderance.” Desrosiers v. Sec’y of Health & Human 

Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). Even if the Commissioner’s findings 

are supported by substantial evidence, the decision should be set aside if proper legal standards 

were not applied when weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 

1987) (quoting Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In reviewing the record, the 

Court must consider “both the evidence that supports and the evidence that detracts from the 

Commissioner’s conclusion.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones 

v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)). 

“Where evidence is susceptible to more than one rational interpretation,” the ALJ's 

decision should be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal 

quotation marks and citation omitted). “However, a reviewing court must consider the entire 

record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting 

evidence.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). 

Although the Court may “review only the reasons provided by the ALJ in the disability 

determination and may not affirm the ALJ on a ground upon which [the ALJ] did not rely,” 

Garrison, 759 F.3d at 1010, “harmless error analysis applies in the social security context.” 

Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). “But where the circumstances of the case 

show a substantial likelihood of prejudice, remand is appropriate so that the agency can decide 

whether re-consideration is necessary. By contrast, where harmlessness is clear and not a 

borderline question, remand for reconsideration is not appropriate.” McLeod v. Astrue, 640 F.3d 

881, 888 (9th Cir. 2011) (footnotes, citations, and internal quotation marks omitted).

If the Court identifies defects in the administration proceeding or the ALJ’s conclusions, 

the Court may remand for further proceedings or for a calculation of benefits. See Garrison, 759 

F.3d at 1019–21. 

2. Evaluation of Treating Physician Medical Opinions

“Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 
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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, 81 F.3d at 830. “[T]he opinion of a treating physician is . . . entitled to 

greater weight than that of an examining physician, [and] the opinion of an examining physician is 

entitled to greater weight than that of a non-examining physician.” Garrison, 759 F.3d at 1012.

“To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 

state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 

Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (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.’” Id. (quoting Lester, 81 

F.3d at 831). The Ninth Circuit has emphasized the high standard required for an ALJ to reject an 

opinion from a treating or examining doctor, even where the record includes a contradictory 

medical opinion:

“If a treating or examining doctor’s opinion is contradicted by another 

doctor’s opinion, an ALJ may only reject it by providing specific and 

legitimate reasons that are supported by substantial evidence.” Id. 

This is so because, even when contradicted, a treating or examining 

physician’s opinion is still owed deference and will often be “entitled 

to the greatest weight . . . even if it does not meet the test for 

controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). 

An ALJ can satisfy the “substantial evidence” requirement by “setting 

out a detailed and thorough summary of the facts and conflicting 

clinical evidence, stating his interpretation thereof, and making 

findings.” Reddick, 157 F.3d at 725. “The ALJ must do more than 

state conclusions. He must set forth his own interpretations and 

explain why they, rather than the doctors’, are correct.” Id. (citation 

omitted).

Where an ALJ does not explicitly reject a medical opinion or set forth 

specific, legitimate reasons for crediting one medical opinion over 

another, he errs. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 

1996). In other words, an ALJ errs when he rejects a medical opinion 

or assigns it little weight while doing nothing more than ignoring it, 

asserting without explanation that another medical opinion is more 

persuasive, or criticizing it with boilerplate language that fails to offer 

a substantive basis for his conclusion. See id.

Garrison, 759 F.3d at 1012−13 (footnote omitted); see, e.g., Kinzer v. Colvin, 567 F. App’x 529, 

530 (9th Cir. 2014) (finding the ALJ’s conclusion without any explanation that one treating 

physician’s opinion was “‘not well-supported by the . . . other objective findings in the case 
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record,’ and that [another treating physician’s] opinion ‘contrast[ed] sharply with the other 

evidence of record,’ were insufficient to dispose of the treating doctor’s opinions”). 

Moreover, the ALJ should not give greater weight to the opinions of a non-treating 

physician over a treating physician “without explaining the § 404.1527(d)(2)–(6) factors[7]that 

render the treating physician’s opinion not ‘controlling.’” Wilson v. Astrue, 435 F. App’x 636, 

640 (9th Cir. 2011). 

B. The ALJ Erred in Failing to Credit Dr. Littlefield’s Opinion

Dr. Littlefield, as McDade’s treating physician, brings a “unique perspective to the medical 

evidence.” See 20 C.F.R. § 404.1527(c)(2). “The treating physician’s continuing relationship 

with the claimant makes him especially qualified to evaluate reports from examining doctors, to 

integrate the medical information they provide, and to form an overall conclusion as to functional 

capacities and limitations, as well as to prescribe or approve the overall course of treatment.” 

Lester, 81 F.3d at 833. Dr. Littlefield began treating McDade on December 6, 2014. AR at 596. 

Prior to the ALJ’s decision, Dr. Littlefield had seen McDade at least four times, and completed a 

report on August 10, 2015, setting forth his opinions of McDade’s relevant limitations. Id. at 593–

96, 609–10, 619–22. 

The ALJ rejected Dr. Littlefield’s August 2015 opinion as she found it “inconsistent with 

his underlying treatment records” for two reasons: (1) Dr. Littlefield’s treating notes reported 

McDade “had decreased symptoms with use of his medications”; and (2) Dr. Littlefield’s report

stated McDade’s highest GAF in the past year was 50 to 55, while his treating notes documented 

GAF scores of 60. Id. at 31–32 (citing AR at, e.g., 593, 609). 

The ALJ’s first reason for rejecting Dr. Littlefield’s report—that McDade’s symptoms 

improved when medicated—does not constitute a “specific, legitimate reason” supported by 

substantial evidence contained in the record to justify discrediting Dr. Littlefield’s opinion. See 

 

7 Because McDade filed his application before March 27, 2017, the rules stated in 20 C.F.R. 

§ 404.1527 apply to this case. Amendments to that section after the date of the decision in Wilson

renumbered the relevant factors from subpart (d) to subpart (c) of § 404.1527. More recent 

applications are governed by 20 C.F.R. § 404.1520c rather than § 404.1527, but that newer 

regulation is not applicable to McDade’s pre-2017 application.
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Garrison, 759 F.3d at 1012. Although Dr. Littlefield and other medical sources documented that 

medication ameliorated McDade’s anxiety, “such observations must be ‘read in context of the 

overall diagnostic picture’ the provider draws.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 

2014) (quoting Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)); see Lester, 81 F.3d 

at 833 (“Occasional symptom-free periods . . . are not inconsistent with disability.”). That a 

patient’s anxiety improved on medication “does not mean that the person’s impairment[] no longer 

seriously affect[s his] ability to function in a workplace.” Holohan, 246 F.3d at 1205. 

Dr. Littlefield’s treatment notes consistently reflect that McDade continued to experience 

severe levels of anxiety, which required adjustment of his medications. AR at 593–97, 609–10, 

619–22. As noted by McDade, “Dr. Littlefield could never quite get the medication combination 

to work properly for McDade.” Pl.’s Mot. at 13 (citing AR at 593–94, 597, 609–10). Further, 

there is no evidence that any improvements McDade experienced over the course of his treatment 

would increase his functional capacity. See Garrison, 759 F.3d at 1017 (“Reports of 

‘improvement’ in the context of mental health issues must be interpreted . . . with an awareness 

that improved functioning while being treated and while limiting environmental stressors does not 

always mean that a claimant can function effectively in the workplace.”). For example, on July 

22, 2015, despite McDade reporting decreased symptoms due to his medication, Dr. Littlefield 

noted McDade’s anxiety remained severe and escalated in the evenings, and adjusted his 

medication dosages. AR at 609–10. The Court therefore holds that McDade’s relative 

improvements at some visits with Dr. Littlefield do not, in themselves, demonstrate that Dr. 

Littlefield’s opinion is inconsistent with his treating notes such that the ALJ could set aside the 

opinion of McDade’s treating physician. 

The ALJ’s second reason for rejecting Dr. Littlefield’s opinion—that Dr. Littlefield’s 

August report stated McDade’s highest GAF in the past year to be 50 to 55, while his treating 

notes assessed scores of 60—also does not constitute a “specific, legitimate reason” supported by 

substantial evidence to justify discrediting Dr. Littlefield’s opinion. The ALJ found that “[t]he 

preponderance of the medical evidence indicates that the claimant has mostly received GAF scores 

ranging from 51 to 60, indicating moderate symptoms.” Id. (citing AR at 504–05, 508, 535, 548, 
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564). The ALJ dismissed the previous report in which Dr. Littlefield evaluated McDade’s GAF to 

be 50 because it “was during a visit when the claimant was experiencing an increase in his anxiety 

symptoms.” Id. at 32. 

The ALJ’s reference to a minor inconsistency in the treating physician’s opinion is not a 

sufficient reason to reject it. See Sprague v. Bowen, 812 F.2d 1226, 1230–31 (9th Cir. 1987)

(holding mere reference to two inconsistencies in a treating physician’s notes—an unsupported 

diagnosis of arthritis, and the treating physician’s evaluation of the claimant’s pain which the ALJ 

found inconsistent with claimant’s testimony that she was learning to type—does not constitute 

“specific, legitimate reasons” for disregarding the treating physician’s opinion); Heine-O’Brien v. 

Astrue, 359 F. App’x 699, 700 (9th Cir. 2009) (holding that variance in a treating physician’s

reports on whether the claimant could walk continuously for fifteen minutes or thirty minutes was 

insignificant and did not justify rejection of those reports). The Commissioner argues that the ALJ 

rejected Dr. Littlefield’s questionnaire because “Dr. Littlefield appeared to exaggerate [McDade’s] 

condition” considering the discrepancy in GAF scores. Opp’n at 4. However, the ALJ simply 

stated “[t]he preponderance of the medical evidence indicates that the claimant has mostly 

received GAF scores ranging from 51 to 60, indicating moderate symptoms.” AR at 32 (citing AR 

at 504–05, 508, 535, 548, 564). She did not sufficiently “set forth [her] own interpretations and 

explain why they, rather than [Dr. Littlefield’s], are correct.” See Reddick, 157 F.3d at 725 

(citation omitted). 

The Commissioner argues that the difference between a GAF of 50 and 51 to 60 is 

significant, as “a GAF score of 50 indicates serious symptoms or impairment while a score of 51–

60 reflects moderate symptoms or impairment.” Comm’r’s Mot. at 3 (citing Diagnostic and 

Statistical Manual of Mental Disorders, 32 (4th ed. Am. Psychiatric Ass’n 1994)). However, Dr. 

Littlefield does not report that McDade’s highest GAF score in the past year was 50, he reports the 

upper range to be a score of 55. AR at 619. Considering that any score between 51 and 60 

indicates a similar level of symptoms or impairments, Dr. Littlefield’s misstatement is not

substantial evidence to validate the Commissioner’s claim that “Dr. Littlefield appeared to 

exaggerate Plaintiff’s condition.” See Comm’r’s Mot. at 4. 
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Further, the ALJ’s finding that Dr. Littlefield’s report is inconsistent with the record as a 

whole due to the discrepancy in GAF scores is not supported by substantial evidence. Despite Dr. 

Littlefield reporting McDade’s upper GAF score to be 55, the remainder of his report is consistent 

with his medical records. Dr. Littlefield consistently reports McDade experienced recurrent severe 

panic attacks and severe anxiety, which were somewhat ameliorated by medication. AR at 619,

609, 594, 596. Dr. Littlefield’s conclusion that McDade experiences marked functional 

limitations in activities of daily living and maintaining social functioning is supported by the notes 

in Dr. Littlefield’s records that state McDade experiences extreme anxiety in public places making 

him unable to go to the store alone, and in some cases unable to go with a family member. AR at 

593, 594, 621. Dr. Littlefield also documented that McDade experiences sleep disturbance, mood 

disturbance, social withdrawal or isolation, generalized persistent anxiety, feelings of guilt and 

worthlessness, and difficulty thinking or concentrating. AR at 609, 620. The ALJ does not 

explain how these symptoms are inconsistent with Dr. Littlefield’s opinions in his August 2015 

report. 

Further, Dr. Littlefield’s evaluation of McDade is consistent with the record as a whole. 

The record demonstrates that multiple psychiatrists and treating physicians assessed McDade’s 

GAF to be between 50 and 60. AR at 505, 509, 535, 548, 564. Dr. Littlefield’s statement that 

McDade has frequent deficiencies of concentration, persistence or pace resulting in failure to 

complete tasks in a timely manner is collaborated by other areas of the record. AR at 621; see, 

e.g., AR at 507 (August 27, 2013 treating note documenting that McDade experienced poor 

concentration), 504 (September 17, 2013 note indicating McDade experienced difficulty with 

concentration), 516 (November 18, 2013 note stating concentration is difficult at times for 

McDade), 520 (February 10, 2014 evaluation that McDade’s concentration was fair). 

Dr. Littlefield also reported that McDade has had repeated (three or more) episodes of 

deterioration or decompensation in work or work-like settings, which is supported by records 

documenting McDade’s panic attacks at work. AR at 621, 562, 554, 545, 552. Dr. Littlefield’s 

assessment that McDade’s anxiety has caused a substantial loss of ability to respond appropriately 

to supervision, co-workers, and unusual work situations; and deal with changes in a routine work 
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setting mirrors treatment notes from other providers that indicate McDade experiences extreme 

stress in workplace settings, and difficulties working with others because of his anxiety. AR at 

622, 436, 562, 554, 545, 548, 600–01. 

Moreover, the Commissioner has clarified that mention of the GAF scale during the 2000 

revision of the mental health listings was not an “endorse[ment of] its use in the Social Security 

and SSI disability programs, but to indicate why the third sentence of the second paragraph of 

proposed 12.00D stated that an individual’s medical source ‘normally can provide valuable 

additional functional information.’” 65 Fed. Reg. 50746, 50764–50765. The Commissioner has 

made clear that GAF scores “do[] not have a direct correlation to the severity requirements in [the] 

mental disorders listings.” 65 Fed. Reg. 50746, 50765 (August 21, 2000); see also McFarland v. 

Astrue, 288 F. App’x 357, 359 (9th Cir. 2008) (noting the Commissioner’s statement). 

Considering this, a score between 51 and 60 does not preclude the severity of symptoms Dr. 

Littlefield and others report in the medical record. 

The ALJ’s reliance on an error in Dr. Littlefield’s report, despite consistency of the 

remainder of his report with the record, is not substantial evidence of a conflict between Dr. 

Littlefield’s treatment notes and his opinion regarding the severity of McDade’s anxiety. See 

Ghanim, 763 F.3d at 1162 (holding that “the ALJ’s example of one note, out of over one hundred 

pages of treatment notes,” where the treating physician’s record stated the claimant “did not 

appear to be impaired psychiatrically, is not substantial evidence of a conflict between the 

treatment notes and the treating providers’ opinions regarding the severity of [the claimant’s] 

impairment”). 

C. Remand for Benefits is Appropriate

If an ALJ has improperly failed to credit claimant testimony or medical opinion evidence, 

a district court must credit that testimony as true, and remand for an award of benefits if three 

conditions are satisfied: 

(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) if the improperly 

discredited evidence were credited as true, the ALJ would be 
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required to find the claimant disabled on remand. 

Garrison, 759 F.3d at 1020. Under such circumstances, a court should not remand for further 

administrative proceedings to reassess credibility. See id. at 1019–21. This “credit-as-true” rule, 

which is “settled” in the Ninth Circuit, id. at 999, is intended to encourage careful analysis by 

ALJs, avoid duplicative hearings and burden, and reduce delay and uncertainty facing claimants, 

many of whom “suffer from painful and debilitating conditions, as well as sever economic 

hardship.” Id. at 1019 (quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1398–

99 (9th Cir. 1988)). 

A court may remand for further proceedings “when the record as a whole creates serious 

doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security 

Act.” Id. at 2021. A court may also remand for the limited purpose of determining when a 

claimant’s disability began if that date is not clear from the credited-as-true opinion. See House v. 

Colvin, 583 F. App’x 628, 629 (9th Cir. July 12, 2014) (citing, e.g., Luna v. Astrue, 623 F.3d 

1032, 1035 (9th Cir. 2010)). Outside of those circumstances, remand for further proceedings is an 

abuse of discretion if the credit-as-true rule establishes that a claimant is disabled. Garrison, 759 

F.3d at 1020. 

Here, as discussed above, the ALJ failed to credit Dr. Littlefield’s opinions regarding 

McDade’s limitations. The ALJ’s error was not harmless because the Court cannot conclude that 

“no reasonable ALJ, when fully crediting the testimony, could have reached a different disability 

determination.” See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 

The Commissioner, arguing against the application of the credit-as-true rule here, contends 

that McDade’s “ability to vacation in Florida for a month and have fun was inconsistent with 

allegations that he was unable to leave his house or maintain minimal social interactions” casts 

“serious doubt” McDade is disabled. Comm’r’s Mot. at 7. It is not at all clear that ever having 

fun or going on vacation is probative of a person’s ability to work consistently. Moreover, the 

Commissioner’s characterization of McDade’s time in Florida fails to account for the facts that he 

sought treatment there multiple times, and his condition worsened. AR at 596. 

Further, the Court is also not persuaded that the opinions of the nonexamining consultants 
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warrant further proceedings. Drs. Clay and DeCubas—whom the ALJ credited in determining the 

RFC—wrote their reports in 2014, and thus did not review the entire body of medical evidence;

specifically, the records of McDade’s treating physician, Dr. Littlefield, and therapist, Miyazawa

from 2015. AR at 94, 106, 596, 606. The Ninth Circuit has held, albeit in an unpublished 

opinion, that it is an error to give “‘great weight’ to the non-treating State agency consultant’s 

opinion even though . . . the consultant did not review a substantial portion of the relevant medical 

evidence, including the records from [the claimant’s] treating physicians.” Herron v. Astrue, 407 

F. App’x 139, 141 (9th Cir. 2010) (citing 20 C.F.R. §§ 404.1527(a)–(e), (f)(2)(ii)). The fact that 

the non-examining consultants here had not reviewed a significant portion of the medical evidence 

is one of many differences that distinguish this case from Dominguez v. Colvin, 808 F.3d 403 (9th 

Cir. 2015), where the Ninth Circuit noted the adverse determinations of non-examining doctors, as 

well as other doctors who had examined the claimant, as one relevant factor in affirming a district 

court’s decision to remand for further proceedings rather than for an award of benefits. Cf. 808 

F.3d at 409.

Here, the Commissioner has not identified any legitimate reason why the record is 

incomplete or further proceedings would be useful. The ALJ failed to provide legally sufficient 

reasons to reject Dr. Littlefield’s opinions. See id. at 1022. If Dr. Littlefield’s opinion is credited

as true, upon remand the ALJ would be required to find McDade disabled because he satisfies

“Paragraph B” criteria under Listing 12.06 for anxiety, which at the time of the ALJ’s decision8

required the claimant suffer at least two of the following: (1) marked restriction of activities of 

daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in 

maintaining concentration, persistence or pace; or (4) repeated episodes of decompensation, each 

of extended duration. See 20 C.F.R. § 404, Subpt. P, App. 1 at 12.00. Dr. Littlefield evaluated 

McDade’s functional limitations as a result of his anxiety to be marked in activities of daily living 

 

8 As noted above, no party has argued that the Court should evaluate this case based on

intervening amendments to the mental impairment listings. The Court declines to address the 

issue sua sponte and assumes for the purpose of this order that the listings in effect at the time of 

the ALJ’s decision continue to govern McDade’s application. Citations herein to such listings 

refer to those versions.
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and maintaining social functioning; as well as repeated episodes of decompensation. AR at 621. 

Dr. Littlefield’s report also demonstrates that McDade satisfies “Paragraph C” criteria for 12.04 as 

he has repeated episodes of decompensation, and 12.06 as he is unable to function independently 

outside the area of his home due to his anxiety. AR at 621. 

Even if McDade did not satisfy “Paragraph B” or “Paragraph C” criteria, Dr. Littlefield 

determined McDade’s anxiety makes him unable to “respond appropriately” to supervisors and 

coworkers. AR at 622. Otherwise accepting the ALJ’s residual functional capacity assessment—

which limited McDade to “perform[ing] simple, repetitive tasks, . . . occasionally work[ing] with 

the general public, and . . . avoid[ing] concentrated exposure to pulmonary irritants,” id. at 27—

the VE testified that there would be no jobs for such a person if they were unable to work as part 

of team or one-on-one with supervisors. Id. at 82–83. The ALJ did not identify and the Court is 

not aware of any contrary medical or vocational opinion regarding McDade’s ability to work with 

supervisors appropriately or whether such inability would preclude employment. The Court 

therefore has no “serious doubt as to whether the claimant is, in fact, disabled,” and concludes an 

award of benefits is appropriate. See Garrison, 759 F.3d at 1019–21.9

Because the ALJ’s failure to credit Dr. Littlefield’s testimony is sufficient reason to 

remand for an award benefits, the Court does not reach the parties’ arguments regarding the ALJ’s 

treatment of Miyazawa’s opinions.

/ / /

/ / /

/ / /

/ / /

/ / /

 

9 Under the statutory framework for disability benefits, not all impairments that prevent a claimant 

from working necessarily meet the definition of “disability.” The law requires that an impairment 

“has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 

U.S.C. § 432(d)(1)(A). Dr. Littlefield’s opinion found McDade’s impairment had lasted and 

would continue to last at least twelve months. AR at 622. Crediting those opinions pursuant to 

Ninth Circuit doctrine, and in the absence of evidence to the contrary, that requirement is satisfied 

here. 
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IV. CONCLUSION

For the reasons discussed above, McDade’s motion for summary judgment is GRANTED, 

the Commissioner’s motion is DENIED, and the matter is REMANDED with instructions to 

award benefits consistent with this order. 

IT IS SO ORDERED.

Dated: September 27, 2018

______________________________________

JOSEPH C. SPERO

Chief Magistrate Judge