PANNER, District Judge.
Plaintiff Arcadia Moon ("Plaintiff') seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for Title II Disability Insurance Benefits ("DIB") pursuant to 42 U.S.C. § 423. For the reasons below, the Commissioner's decision is REVERSED and REMANDED for payment of benefits.
Born in October 1969, Plaintiff was 39 years old on the alleged disability onset date of September 30, 2009. Tr. 45. Plaintiff speaks English and graduated from high school. Tr. 33. In December 2010, Plaintiff filed an application for DIB, alleging disability due to attention deficit hyperactivity disorder ("ADHD"), post-traumatic stress disorder ("PTSD"), generalized anxiety disorder, major depressive disorder, insomnia, social anxiety/phobia, and transgender status. Tr. 45.
The Commissioner denied Plaintiffs application for DIB initially and upon reconsideration and she requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 14. After an administrative hearing held on December 19, 2012, ALJ Riley J. Atkins issued a decision finding Plaintiff not disabled. Tr. 14-24. The Appeals Council denied Plaintiffs subsequent request for review, making the ALJ's decision the final Agency decision. Tr. 1-3; 20 C.F.R. § 422.210.
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r, 648 F.3d 721, 724 (9th Cir.2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001).
The claimant bears the burden of proof at steps one through four. Id. at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
The ALJ performed the sequential analysis. At step one, the ALJ found that
In assessing Plaintiff's RFC, the ALJ found that Plaintiff had the residual functional capacity to perform a full range of work at all exertional levels, but with the following non-exertional limitations: 1) she is limited to unskilled to low-semiskilled work; 2) she should have no public contact; and 3) she should have only brief, routine interactions with coworkers and supervisors. Tr. 18.
At step four, the ALJ found that Plaintiff is capable of performing her past relevant work as a delivery driver. Tr. 22. Although the ALJ found Plaintiff able to perform past work, he still conducted the step five analysis as an alternative basis for finding Plaintiff not disabled. Id. At step five, based on the testimony of a vocational expert, the ALJ determined that Plaintiff could perform jobs that exist in significant numbers in the national economy, including prep cook, warehouse worker, and hand packager. Tr. 22-23. The ALJ therefore concluded that Plaintiff was not disabled. Tr. 23-24.
The reviewing court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219, 1222 (9th Cir.2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this court may not substitute its judgment for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). "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.'" Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006)).
Even where findings are supported by substantial evidence, "the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.
Plaintiff argues the ALJ erred by: (1) improperly discrediting Plaintiffs testimony and (2) improperly rejecting the opinion of Plaintiff s mental health counselors.
When gauging a claimant's credibility, an ALJ must engage in a two-step
Plaintiff testified that she suffers from anxiety and agoraphobia which prevent her from leaving her home for more than four hours at a time. Tr. 37. She takes medication for her anxiety, including anti-depressants and medication for her PTSD symptoms. Tr. 38. She testified that she regularly experiences panic attacks from loud noises, or becomes shaky and nervous if she is out of her home for long periods of time. Tr. 37. Her anxiety will sometimes manifest as anger, irritability, distrust, a sense of threat, or fear. Tr. 38. Although she is able to work as a volunteer three days a week for 3.5 hours per day, she testified that any attempt to volunteer for a full day exacerbates her anxiety for two or three days afterwards. Tr. 37-38.
The ALJ found that Plaintiff's impairments could be reasonably expected to cause her alleged symptoms. Tr. 18-19. However, he found Plaintiff's statements regarding the intensity, persistence, and limiting effects of these symptoms not entirely credible. Tr. 19. The ALJ provided four primary reasons for this determination: (1) Plaintiffs symptoms are disproportionate to the objective and clinical findings, (2) Plaintiffs treatment has been essentially routine and/or conservative in nature, (3) Plaintiff's described daily activities are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations, and (4) Plaintiff stopped working for reasons unrelated to her allegedly disabling impairments. Tr. 19-21. Plaintiff contends that the ALJ erred by failing to provide clear and convincing reasons for rejecting her testimony. I agree.
The first reason the ALJ provides for discrediting Plaintiff's subjective testimony is that Plaintiff's "symptoms are disproportionate to the objective and clinical findings." Tr. 19. An ALJ may not discredit a plaintiffs testimony solely "because no objective medical evidence support[s] [their] testimony," Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), but may consider a lack of objective evidence as one element in his analysis. Burch, 400 F.3d at 680; 20 C.F.R. § 404.1529. In making a credibility finding; the ALJ must also look to reasons "unrelated to the subjective testimony (e.g., reputation for dishonesty), conflicts between his testimony and his own conduct, or internal contradictions in that testimony." Robbins, 466 F.3d at 884.
First, the ALJ cites a treating physician's observations as to Plaintiffs cognitive and neurological functioning. Tr. 19. In Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir.2014), the ALJ pointed to treatment notes where the plaintiff was "upbeat," maintained "good eye contact," had "organized and logical thought content,"
Here, the ALJ cites comparable medical evidence regarding Plaintiffs cognitive functioning:
Tr. 19. The ALJ also highlights other treatment notes where doctors observe Plaintiffs "grooming and hygiene were good," and that she was able to recall seven digits forward and five in reverse. Tr. 20. However, like the plaintiff in Ghanim, Plaintiff does not allege any cognitive or neurological impairments, and these notes speak only briefly as to her social anxiety, noting that Plaintiffs "posture was relaxed, with no sign of anxiety," and that she was "able to engage appropriately in light social interchange." Tr. 20. As the relationship between her cognitive functioning and her impairments is quite attenuated, such evidence does not support the ALJ's finding that the treatment record does not support Plaintiffs testimony.
The ALJ also noted that during a group therapy session on March 19, 2011, Plaintiff was able to act as the group's disc jockey and that she was "kind and patient with other group members." Tr. 19. As Plaintiff points out, however, the ALJ entirely neglected to address another, later incident in which Plaintiff acted as group disc jockey, but became "enraged" at technical difficulties, engaged in self-harm, and yelled at the group members. Tr. 416. The clinician who prepared that report attributed Plaintiff's behavior to an inability to cope with anxiety in group settings. Id. The ALJ improperly highlighted one positive example from Plaintiffs treatment notes without addressing the numerous instances where Plaintiff experienced difficulty with social functioning. See, e.g., Tr. 455, 592, 615, 664. An ALJ must not "cherry-pick" certain observations without considering their context. Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir.1998); Ghanim, 763 F.3d at 1164. And although there are positive treatment notes in the record, the Ninth Circuit has observed that when "a person who suffers from severe panic attacks, anxiety, and depression makes some improvement [that] does not mean that the person's impairments no longer seriously affect her ability to function in a workplace." Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.2001). "Occasional symptom-free periods — and even the sporadic ability to work — are not inconsistent with disability." Lester v. Chater, 81 F.3d 821, 833 (9th Cir.1995). I conclude, therefore, that the ALJ has not provided clear and convincing reasons for discounting Plaintiffs testimony based on conflict with the objective and clinical findings.
The ALJ noted that "[a]lthough Plaintiff has received treatment for allegedly disabling impairments, that treatment has been essentially routine and/or conservative in nature." Tr. 20. "Conservative treatment" may be sufficient to discount a claimant's testimony regarding the severity of an impairment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.2007).
The record does not support the ALJ's finding of a "conservative and/or routine" treatment regimen. Although, as the ALJ noted, Plaintiff has not been hospitalized during the relevant period, there is no indication that hospitalization would be a more appropriate treatment than what she currently receives. Tr. 20. Plaintiff has engaged in a considerable amount of regular mental health counseling and medication management. Tr. 426. Plaintiff also takes a number of medications to treat her symptoms. Tr. 38-39. Plaintiff's counselors report that she is fully committed to her treatment, citing her regular attendance, full participation, and compliance with her treatment providers. Tr. 693, 697. And although it appears that Plaintiff experiences some relief from her symptoms as a result of her medication, such periodic relief of symptoms is not inconsistent with disability. Lester, 81 F.3d at 833. I conclude that Plaintiff's treatment regimen does not provide a clear and convincing reason for discounting her testimony.
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting a claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.2008). However, "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations," Reddick, 157 F.3d at 722, and "the mere fact that a plaintiff has carried on with certain daily activities, such as grocery shopping... does not in any way detract from his credibility," Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir.2005) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001)). In order to impact a claimant's credibility, the activity has to be "inconsistent with [the claimant's] claimed limitations." Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his conclusion on the claimant's credibility. Id. at 722-23.
In his decision, the ALJ stated that Plaintiff's activities of daily living are "not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." Tr. 20. In support of this, the ALJ cites the positive treatment session in which Plaintiff acted as disc jockey for her group. Tr. 20-21. Once again, the ALJ fails to note that, approximately one year later, Plaintiff's attempt to serve as a group disc jockey ended in frustration, anger, and self-harm. Tr. 416. Placed within the larger context of Plaintiff s treatment history, this one positive episode does not undermine Plaintiffs testimony about her limitations.
The ALJ also noted that Plaintiff entered into a new romantic relationship in 2011, and experienced "increased feelings of happiness and hopefulness related to a new personal relationship" in 2012. Tr. 21. As noted, however, claimants should not be penalized for attempting to lead normal lives in the face of their limitations. Plaintiff does not have to be "utterly incapacitated"
Finally, the ALJ noted that Plaintiff is able to perform volunteer work. Tr. 21. Plaintiff testified that she is able to work as a volunteer for Free Geek for 3.5 hours per day, three days per week. Tr. 37. Plaintiff also testified that she has attempted to work full days as a volunteer, but found that doing so resulted in exacerbation of her symptoms. Tr. 37-38. Plaintiff's volunteer schedule is consistent with her testimony that she is unable to function outside of her home for more than four hours at a time. Tr. 37. I conclude, therefore, that Plaintiffs volunteer work and activities of daily living do not provide a clear and convincing reason to reject her testimony.
The ALJ found that "[t]here is evidence that the claimant stopped working for reasons not related to the allegedly disabling impairments." Tr. 21. Plaintiff's last job was as a CNA at a psychiatric facility. Tr. 21, 33. At the hearing, Plaintiff testified that she left that job because it was too stressful and traumatizing. Tr. 36. In September 2009, at the end of her employment as a CNA, Plaintiff took vacation time to visit her significant other in Canada. Tr. 41. After her significant other proposed marriage, Plaintiff quit her job as a CNA and moved to Canada, where she remained until July 2010. Tr. 204.
In assessing a claimant's credibility, the ALJ is entitled to use "ordinary techniques of credibility evaluation, such as a claimant's reputation for truthfulness and any inconsistent statements in her testimony." Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.2001). A claimant's reason for leaving employment is a valid consideration in weighing credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.2001). Plaintiff's testimony and the record show that Plaintiff moved to Canada to live with her significant other at approximately the same time that she quit her job as a CNA. Tr. 40-41, 202. Plaintiff sought counseling while in Canada and the record shows that Plaintiffs U.S. citizenship prevented her from accessing services or considering legal employment while she was in Canada. Tr. 207. On this basis, the ALJ concluded that Plaintiff left her employment as a CNA for reasons unrelated to her disabilities. Tr. 21. Plaintiff persuasively argues that she left her job for more than one reason, and that the primary motivator was her disability. Nevertheless, where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002).
On the record before me, however, I cannot confidently conclude that the ALJ provided clear and convincing reasons to support his decision to assign little weight to Plaintiffs subjective symptom testimony.
The ALJ considered, but assigned little weight to the the opinions of Sandra Ford, PA-C, and Carol Roberts, QMHP, both of whom opined that Plaintiffs impairments prevent her from working. Tr. 693, 697. The ALJ found that Ford's opinion "is not supported by the medical evidence of record, including Ms. Ford's own treatment notes, and appears to be based primarily on the claimant's subjective complaints." Tr. 21. The ALJ gave little weight to Roberts's opinion because "it does not
In order to reject the testimony of a medically acceptable treating source, the ALJ must provide specific, legitimate reasons based on substantial evidence in the record. Valentine v. Comm'r, 574 F.3d 685, 692 (9th Cir.2009). However, physicians' assistants, nurse practitioners, and QMHP are defined as "other sources," not acceptable medical sources, and are thus entitled to lesser deference. 20 C.F.R. § 404.1513(d); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). The ALJ need only give germane reasons to discount such opinions. Molina, 674 F.3d at 1111.
An ALJ may reject lay witness testimony if it is based on a claimant's symptom testimony that has been properly discounted as not credible. Valentine, 574 F.3d at 694. However, as discussed above, the ALJ has not properly discounted Plaintiff's testimony. Thus, this is not a germane reason for discounting their opinions.
The opinions of "other" medical sources may also be rejected if they are unsupported by treatment notes or objective findings. See Blodgett v. Comm'r, 534 Fed.Appx. 608, 610-11 (9th Cir.2013) (affirming the ALJs decision to accord little weight to "other" medical sources because their opinions were inconsistent with the treatment record). Roberts opined that Plaintiff "is easily triggered by her symptomology" and that she "is not able to function in a working environment, at this time, due to her triggers and related emotionality and symptomology." Tr. 693. Similarly, Ford concluded that Plaintiffs "symptoms would keep [her] from following even simple instructions and prevent her from presenting to work reliably." Tr. 697.
The ALJ erred in finding that the opinions of Roberts and Ford conflicted with the objective and medical evidence in the record. The Commissioner argues that the ALJ implicitly accepted the opinions of Jane Starbird, Ph.D., an examining psychologist, and Robert Henriques, M.D., whose opinions contradict those of Roberts and Ford. Dr. Starbird examined Plaintiff on April 19, 2011. Tr. 353-57. Dr. Starbird noted that Plaintiff "did not appear anxious during the evaluation," but assigned a diagnosis of "anxiety disorder, NOS." Tr. 356. Dr. Starbird noted that Plaintiff was "a moderate or poor historian," with "limited" insight and "variable" judgment. Id. She found that Plaintiff's symptoms "are variable, waxing and waning depending on other stressors." Tr. 357. Dr. Starbird also found Plaintiffs self-report of her symptoms to be credible. Tr. 356. Dr. Starbird's observations are borne out in the record, which shows Plaintiff's variable level of social functioning. I find no conflict between Dr. Starbird's report and the opinions of Roberts and Ford.
Dr. Henriques's notes are extremely brief, noting "[a]ffect normal, [s]peech normal, no delusional thinking or psychotic ideation." Tr. 256, 259. As Plaintiff's limitations stem from anxiety, depression, PTSD, and social functioning difficulties, it is not clear how a lack of delusional thinking or psychotic ideation contradicts the opinions of Roberts or Ford. Moreover, Dr. Henriques did assess and plan treatments for Plaintiff's depression and anxiety, which included prescribing and adjusting medication. Tr. 243, 251, 255, 259.
The ALJ also stated that Ford's opinion was not supported by her treatment notes. A contradiction between a medical source's assessment of a claimant's disability and the source's other notes and observations provides a clear and convincing reason for
The ALJ did not provide germane reasons for discounting the opinions of Roberts or Ford. In doing so, the ALJ committed legal error. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.2001) ("Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so."). This error is not harmless because the Court cannot confidently conclude that no reasonable ALJ could have reached a different disability determination had the reports been fully credited. Stout v. Comm'r, 454 F.3d 1050, 1056 (9th Cir.2006). Accordingly, the ALJ's decision to reject their opinions must be reversed. Lingenfelter, 504 F.3d at 1045.
"The decision whether to remand a case for additional evidence or simply to award benefits is within the discretion of the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). Generally, when a court reverses an administrative decision, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (quoting INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002)). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989); Smolen, 80 F.3d at 1292.
Under the credit-as-true rule, a court should remand to an ALJ with instructions to calculate and award benefits if three factors are satisfied:
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.2014).
I have determined the ALJ erred when he concluded Plaintiff was not fully credible and when he rejected the opinions of Sandra Ford and Carol Roberts. If credited, those opinions establish that Plaintiff is disabled. Thus, the Court concludes Plaintiff is disabled based on this medical record and no useful purpose would be
Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED and the matter is REMANDED to the Commissioner for the immediate calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED.
