DOUGLAS L. RAYES, District Judge.
Plaintiff Christopher Burbey-Miller applied for a period of disability, disability insurance benefits, and supplemental security income, alleging disability beginning June 14, 2013. (A.R. 19.) The claim was denied initially on August 18, 2014, and upon reconsideration on February 26, 2015. (Id.) Plaintiff then requested a hearing. (Id.) On October 20, 2016, Plaintiff and a vocational expert (VE) testified at a hearing before an Administrative Law Judge (ALJ). (Id. at 33-62.)
On January 11, 2017, the ALJ issued a written decision finding Plaintiff not disabled within the meaning of the Social Security Act ("Act"), which became the Commissioner's final decision when the Appeals Council denied review. (Id. at 4-6.) On November 7, 2017, Plaintiff sought review by this Court. (Doc. 1.) After receipt of the administrative record (Doc. 11), the parties fully briefed the issues for review (Docs. 15, 17). For reasons stated below, the Court reverses the Commissioner's decision and remands for benefits.
To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. At step two, the ALJ determines whether the claimant has a "severe" medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (RFC) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. If not, the claimant is disabled.
At step one, the ALJ found that Plaintiff meets the status requirement of the Act through December 31, 2018, and has not engaged in substantial gainful activity since June 14, 2013, the alleged onset date. (A.R. 21.) At step two, the ALJ found that Plaintiff has the following severe impairments: obesity, obstructive sleep apnea, degenerative disc disease status-post hiatal hernia, status-post inguinal hernia, gastroesophageal reflux disease, mood disorder, testosterone deficiency, anxiety and depression. (Id.) At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or equals the severity of one of the listed impairments in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 22.) At step four, the ALJ found that Plaintiff:
(Id. at 25.) The ALJ also found that Plaintiff can perform past relevant work as an outside delivery driver. (Id. at 30.) Therefore, the ALJ concluded that Plaintiff is not disabled. (Id. at 32.)
It is not the district court's role to review the ALJ's decision de novo or otherwise determine whether the claimant is disabled. Rather, the court is limited to reviewing the ALJ's decision to determine whether it "contains legal error or is not supported by substantial evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla but less than a preponderance, and "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Id. The court, however, "must consider the entire record as a whole and may not affirm simply by isolating a `specific quantum of supporting evidence.'" Id. Nor may the court "affirm the ALJ on a ground upon which he did not rely." Id.
Plaintiff challenges whether the ALJ's RFC determination is supported by substantial evidence. Specifically, Plaintiff contends that the ALJ improperly discounted the opinions of his treating physicians and treating nurse practitioner, and rejected his symptom testimony.
Plaintiff argues that the ALJ improperly weighed the opinions of Drs. Popa and Brown. In weighing medical source opinions, the ALJ should distinguish between three different types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and, (3) nonexamining physicians who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ generally should give more weight to the opinion of a treating physician than to the opinion of an examining physician, and more weight to the opinion of an examining physician than to the opinion of a non-examining physician. Orn, 495 F.3d at 631; Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).
Where a treating physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons, and where it is contradicted, it still may not be rejected without "specific and legitimate reasons" supported by substantial evidence in the record. Lester, 81 F.3d at 830. Likewise, when an examining physician's opinion is not contradicted by another physician, it may only be rejected for "clear and convincing" reasons, and when an examining physician's opinion is contradicted by another physician, the ALJ is required to provide only "specific and legitimate reasons" to reject the opinion. Id. at 830-31. "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." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal quotation and citation omitted).
Dr. Popa, Plaintiff's primary care provider, opined on Plaintiff's functional capabilities. (A.R. 615-19, 672-76, 831-35.) Dr. Popa opined that Plaintiff had extreme limitations in his ability to understand, remember, and carry out simple instructions, understand and remember detailed instructions, make judgments on simple work-related decisions, interact appropriately with the public, co-workers, or supervisors, and respond appropriately to work pressure or changes in a routine work setting. (Id. at 834.) Based on these findings, Dr. Popa opined that Plaintiff would be off-task more than 30% of a normal workweek, he would be absent from work more than 5 days a month, and would be unable to complete an 8-hour workday more than 5 days a month. (Id. at 835.)
The ALJ gave Dr. Popa's opinions "minimal weight." (Id. at 28.) Because neither the ALJ nor the Commissioner contends that Dr. Popa's opinion is contradicted, the ALJ was required to articulate clear and convincing reasons, supported by substantial evidence for discounting the opinion.
In explaining why Dr. Popa's opinions were discounted, the ALJ stated that "opinions as to inability to work due to cognitive limitations from mental impairments are not in Dr. Popa's area of specialty. . . ." (Id.) Plaintiff contends that this is contrary to controlling Ninth Circuit precedent. See Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 n.1 (9th Cir. 2003); Sprague, 812 F.2d at 1232. The Court agrees. The fact that Plaintiff's primary care provider is not a specialist is not a valid reason for discounting his opinion.
Next, the ALJ reasoned that Dr. Popa's opinions are inconsistent with the objective medical evidence. Specifically, the ALJ found: "The available testing does suggest a degree of limitation but not to the degree that would require a finding of disabling cognitive limitations." (A.R. 28.) Although this reason would otherwise be clear and convincing, see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004), it is not supported by substantial evidence. Plaintiff's neuropsychological examination concluded that he has "severe difficulties with processing speed and working memory," which are attributable to his "psychiatric state." (A.R. at 624.) These findings are consistent with Dr. Popa's opinion that Plaintiff's depression and anxiety caused severe limitations in his ability to understand, remember, and carry out simple instructions, and understand and remember detailed instructions.
Finally, the ALJ discounted Dr. Popa's opinions because they are inconsistent with Plaintiff's daily activities. The ALJ reasoned that Plaintiff "successfully completed college level courses during the adjudicatory period obtaining a 3.61 cumulative GPA . . . [which] does not suggest disability from cognitive limitations." (Id. at 28.) Like before, although this reason would otherwise be clear and convincing, see Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-602 (9th Cir. 1999), it is not supported by substantial evidence. Plaintiff did not obtain a 3.61 cumulative GPA "during the adjudicatory period." Nearly all of Plaintiff's associate degree was completed before the onset of his disability. After the on-set date, Plaintiff completed only a single course in the Fall 2013 and Spring 2014 semesters (A.R. 281). More telling is the extreme measures that were required for him to complete these courses. According to Julie Burbey-Miller, Plaintiff's ex-wife:
(Id. at 283) (emphasis added).
The ALJ provided three reasons for discounting Dr. Popa's opinions.
Dr. Brown, Plaintiff's treating psychologist, also rendered an opinion on Plaintiff's functional capabilities. (A.R. 611-14.) According to Dr. Brown, Plaintiff has moderate limitations in his ability to understand, remember, and carry out short and simple instructions. (Id. at 611-12.) He also reported that Plaintiff had moderate-to-marked limitations in his ability to carry out detailed instructions, and marked limitations in his ability to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual, and make simple-work related decisions. (Id. at 612.)
The ALJ afforded Dr. Brown's opinion that Plaintiff had "marked limitations" in his "ability to carry out detailed three or more step instructions" little weight.
Natalie Corsbie, Plaintiff's treating mental health nurse practitioner, also opined on Plaintiff's functional capabilities. (A.R. 829-30.) Corsbie opined that Plaintiff had the same work-preclusive limitations as those opined by Dr. Popa. (Id.)
Nurse practitioners are categorized as "other sources" under the regulations. See 20 C.F.R. § 404.1513(d)(1) (explicitly listing nurse practitioners as an "other source" under the regulations).
The ALJ afforded Corsbie's opinions as to Plaintiff's cognitive and social functioning "minimal weight." (A.R. 29.) The ALJ reasoned that Corsbie's opinion was entitled to minimal weight because it was inconsistent with Plaintiff's successful completion of college course and the results of his neuropsychological examination. (Id.) Such reasons, if supported by the record, are well-recognized as germane. See, e.g., Adams v. Berryhill, 725 Fed. App'x 541, 542 (9th Cir. 2018). For the reasons stated above, however, the ALJ's reasons are not supported by the record. Therefore, the Court finds that the ALJ improperly discounted Corsbie's opinions.
Plaintiff testified that emotional problems including depression and anger prevented him from working. (A.R. 43, 51.) Plaintiff also testified that his depression made it more difficult to understand and remember simple instructions. (Id. at 50-53.) Plaintiff alleged that 4-5 days a week his depression is so bad he is unable to get out of bed. (Id. at 52.)
In evaluating a claimant's testimony regarding subjective pain or other symptoms, the ALJ must engage in a two-step analysis. First, the ALJ determines whether the claimant presented objective medical evidence of an impairment that reasonably could be expected to produce some degree of the symptoms alleged. Second, if the claimant makes this showing and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The Court need not uphold all of the ALJ's reasons for discrediting a claimant, so long as substantial evidence supports the ALJ's decision. See e.g., Batson, 359 F.3d at 1197.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, but that his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]" (A.R. at 25.) The "other evidence" offered by the ALJ includes the degree in which Plaintiff's symptoms are managed by medication and his daily activities. (Id. at 27.) The ALJ therefore was required to articulate clear and convincing reasons for discounting the testimony.
The ALJ's discounted Plaintiff's symptom testimony because Plaintiff's alleged symptoms were improved with "structured treatment" and "psychotropic medication." (Id.) Effective control of impairments with medication is a clear and convincing reason for discounting symptom testimony. See Warre v. Comm'r, 439 F.3d 1001, 1006 (9th Cir. 2006); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) ("[E]vidence of medical treatment successfully relieving symptoms can undermine a claim of disability.").
This reason, however, is not supported by substantial evidence. The ALJ noted that Plaintiff reported that his "anger issues had improved, he was denying paranoia, hallucinations and was reporting calmness overall. He was also reporting having structure for the day as defined by his wife and sticking to tasks on a list. [He] has never been hospitalized due to a severe decline in cognitive function." (A.R. 27.) The ALJ's analysis demonstrates that Plaintiff's mental condition was somewhat responsive to treatment and medication. "But to reject a claimant's testimony, it is not enough for the ALJ to show that the [condition] was responsive to treatment; the ALJ must show that the [condition] was `controlled,' i.e., no longer debilitating." Lopez v. Colvin, 195 F.Supp.3d 903, 911 (D. Ariz. 2016) (internal citation omitted). The fact that Plaintiff experienced minor improvements, like fewer periods of paranoia, does not support a finding that his condition was effectively controlled. "Rather, the ALJ must show that the treatment was capable of providing lasting relief." Id. Here, none of the evidence relied upon by the ALJ supports a finding that Plaintiff's depression and anxiety were controlled. Even when Plaintiff's treating providers reported that treatment had stabilized symptoms, they consistently found that he continued to suffer from depression, anxiety and paranoia. (See, e.g., A.R. 718-19 (continued issues with anxiety); 721 (symptomatic of paranoia, depression, and anger); 723 (anxiety continues); 729 (restless, impulsive, and irritable); 733-34 (increasing anxiety).) Because substantial evidence does not support the ALJ's finding that Plaintiff could control his depression and anxiety with medication or other treatment, it was error to reject Plaintiff's symptom testimony on this basis.
The ALJ's next reason for discounting Plaintiff's symptom testimony is that his alleged symptoms are inconsistent with his daily activities. (Id. at 27.) This is a clear and convincing reason when the activities indicate capacities are transferable to a work setting. Molina, 674 F.3d at 1113. Again, this reason is not supported by substantial evidence.
The entirety of the ALJ's findings were as follows: "Notably, in July 2015, [Plaintiff] was reporting that he was getting out of the house, had a better energy level, goes out with his wife, had gone camping with his wife, spent time at a swimming pool with friends of his wife and had his anger in better control." (A.R. 27.) With respect to mental health issues, however, "it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working." Garrison, 759 F.3d at 1017. Here, the ALJ did not select a few isolated instances of improvement, she selected a single isolated instance. This cannot serve as substantial evidence. Moreover, the ALJ failed to acknowledge that Plaintiff reported anxiety in connection with the camping trip (A.R. 757), and that any waxing improvements in July 2015, waned within the month, as he reported at his next appointment that he was suffering from bouts of insomnia, depression, low energy, racing thoughts, and increased frustration (id. at 765-66).
Finally, the ALJ reasoned that "[i]n not affording disabling cognitive limitations to [Plaintiff's] [RFC], [she] considered the results of objective clinical testing in the medical records." (Id. at 27.) Although inconsistence with the weight of medical evidence can be clear and convincing reason for rejecting symptom testimony, it cannot serve as the only basis. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). Because the ALJ's other two reasons are not supported by substantial evidence, the ALJ is unable to rely solely on the objective medical evidence to reject Plaintiff's testimony.
Having determined that the ALJ committed reversible error, the Court has discretion to remand the case for further development of the record, or to credit the improperly rejected evidence as true and remand for an award benefits. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). In deciding whether to remand for an award of benefits, the Court considers whether: (1) the ALJ failed to provide legally sufficient reasons for rejecting evidence, (2) the record has been fully developed and further proceedings would serve no useful purpose, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Triechler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1100-01 (9th Cir. 2014). All three conditions of the credit-as-true-rule are met here.
First, the ALJ's decision to reject Plaintiff's symptom testimony and the opinions of Plaintiff's treating physicians and nurse practitioner is neither free of legal error nor supported by substantial evidence. Second, further proceedings would not serve a useful purpose because the ALJ's error was not due to a failure to develop the record. Finally, during the hearing, the VE testified that someone with the limitations assessed by Plaintiff's treating providers would be unable to perform Plaintiff's past relevant work or other work. (A.R. 58-60.) Accordingly, if the treating providers'' opinions were credited as true, the ALJ would be required to find Plaintiff disabled. The Court therefore exercises its discretion to remand for an award of benefits.
