EDWARD M. CHEN, District Judge.
In April 2012, Plaintiff Thomas A. Michalski protectively filed an application for disability insurance benefits under Title II of the Social Security Act. See AR 80, 160-61. The application was denied initially in November 2012, see AR 91, and then upon reconsideration in March 2013. See AR 105. Mr. Michalski then requested a hearing before an administrative law judge ("ALJ"). See AR 122. A hearing was held before ALJ Judson Scott on March 7, 2014. See AR 24. Subsequently, on March 27, 2014, ALJ Scott issued his decision, concluding that Mr. Michalski was not disabled from April 1, 2011 (the alleged onset date) through the date of his decision. See AR 10-19. Mr. Michalski asked that the Appeals Council for the Social Security Administration review the ALJ's decision, but that request was denied, thus leaving the ALJ's decision as "the final decision of the Commissioner of Social Security." AR 1. Mr. Michalski then initiated the instant action, challenging the ALJ's decision.
Mr. Michalski exhausted his administrative remedies with respect to his claim of disability. This Court has jurisdiction to review pursuant to 42 U.S.C. § 405(g). Mr. Michalski has moved for summary judgment, seeking a reversal of the Commissioner's decision and a remand for an immediate award of benefits. The Commissioner has cross-moved for summary judgment. Having considered the parties' briefs and accompanying submissions, including but not limited to the administrative record, and good cause appearing therefor, the Court hereby
In April 2012, Mr. Michalski protectively filed an application for disability insurance benefits. According to Mr. Michalski, he suffered from bipolar disorder, anxiety, and ADHD, and became unable to work as of April 1, 2011, see AR 80, which was shortly before a month-long hospitalization following a manic episode. As noted above, ALJ Scott rejected Mr. Michalski's claim for benefits, applying the five-step sequential evaluation process provided for by 20 C.F.R. § 404.1520.
Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003).
In the instant case, ALJ Scott made the following rulings regarding the five steps.
At step one, the ALJ found that Mr. Michalski had not engaged in substantial gainful activity since the alleged onset date of April 1, 2011. See AR 12.
At step two, the ALJ concluded that Mr. Michalski had the following severe impairments: "alcohol dependence in recent remission; mood disorder, not otherwise stated; and social anxiety." AR 12. In so concluding, ALJ Scott implicitly rejected Mr. Michalski's claim that that he suffered from bipolar disorder and ADHD.
At step three, the ALJ concluded that Mr. Michalski did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in the relevant appendix found in the Social Security Regulations.
At step four, the ALJ determined that Mr. Michalski had the residual functional capacity ("RFC") "to perform a full range of work at all exertional levels" but that he did have certain nonexertional limitations — namely,
AR 14. Based on this RFC, the ALJ held that Mr. Michalski "is capable of performing past relevant work as an estimator," both as actually and generally performed. AR 17.
Given his finding at step four, the ALJ concluded that Mr. Michalski was not disabled for purposes of the Social Security Act. And given this conclusion, the ALJ did not have to address step five; nevertheless, he did so. More specifically, ALJ Scott found that "there are other jobs existing in the national economy that [Mr. Michalski] is also able to perform" given his RFC, age, work experience, and education. AR 17. Those jobs included linen room attendant and shipping and receiving clerk. See AR 18. Thus, again, the ALJ concluded that Mr. Michalski was not disabled for purposes of the Social Security Act.
After a final decision on a claim for benefits by the Commissioner, the claimant may seek judicial review of that decision by a district court. See 42 U.S.C. § 405(g). The Commissioner's decision will be disturbed only if the ALJ has committed legal error or if the ALJ's findings are not supported by substantial evidence. See Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) ("We will uphold the Commissioner's denial of benefits if the Commissioner applied the correct legal standards and substantial evidence supports the decision."). Substantial evidence is relevant evidence — "more than a scintilla, but less than a preponderance" — that a reasonable mind may accept to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). A court evaluates "the record as a whole, . . . weighing both the evidence that supports and detracts from the ALJ's conclusion" to determine if substantial evidence supports a finding. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence supports "more than one rational interpretation," the Court must uphold the ALJ's decision. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005).
In the instant case, Mr. Michalski makes a number of arguments as to how the ALJ's findings are not supported by substantial evidence. Those arguments fall loosely into three categories: (1) that the ALJ erred in concluding that Mr. Michalski did not suffer from bipolar disorder; (2) that the ALJ erred in partially rejecting Mr. Michalski's credibility; and (3) that the ALJ erred in assessing what work Mr. Michalski could perform based on his RFC.
As noted above, at step two of the five-step process, ALJ Scott declined to find that Mr. Michalski suffered from bipolar disorder. In so ruling, ALJ Scott rejected the diagnosis of bipolar disorder rendered by Mr. Michalski's treating physician, Dr. Eaton,
In his motion, Mr. Michalski contends that the ALJ erred in rejecting Dr. Eaton's opinion, which affected not only the ALJ's step-two analysis but also, implicitly, his analysis of the remaining steps. The Court agrees.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Furthermore, "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician." Id. at 831 (emphasis added); see also Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (stating the same).
In the instant case, the Court is hard pressed to find any basis for the ALJ's rejection of Dr. Eaton's opinion other than the opinions of two nonexamining physicians, in particular, Dr. Cohen. The ALJ's opinion states: "I have read and give little weight to the opinion of treating psychiatrist Dr. Eaton who concluded that the claimant has marked limitation in social functioning and repeated episodes of decompensation due to anxiety and depression with manic episodes since Dr. Eaton's opinion is based on periods of the claimant's noncompliance with his medication and his continued alcohol abuse." AR 17. The ALJ effectively adopted Dr. Cohen's opinion, who testified:
AR 51, 57. The ALJ so understood Dr. Cohen's testimony: "Dr. Cohen disagreed with the diagnosis of bipolar disorder provided by Dr. Eaton since the diagnosis was made during claimant's active alcohol abuse, which mimics manic behavior." AR 16. Because the ALJ relied solely on the testimony of nonexamining doctors to reject the treating physician's opinion, that is problematic. See Lester, 81 F.3d at 831 (stating that "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician") (emphasis added).
Even if the ALJ's reliance on Dr. Cohen and the state agency physician alone were not a problem, the Court concludes that the ALJ failed to provide specific and legitimate reasons supported by substantial evidence for rejecting Dr. Eaton's opinion.
First, Dr. Eaton was not alone in diagnosing Mr. Michalski with bipolar disorder. Notably, another treating physician (Dr. Gemma Guillermo) — who treated Mr. Michalski for approximately a month during his hospitalization at Sequoia Hospital, following a manic episode that took place in late May 2011 — also diagnosed bipolar disorder. See AR 240. A diagnosis of bipolar disorder was also rendered by Mr. Michalski's therapists, Genevieve Walker (MFT trainee) and Steven Dallmann (a MFT and also, apparently, Ms. Walker's supervisor), who had treated him on a weekly basis since October 2011. See AR 334 (letter authored by Ms. Walker and reviewed and approved by Mr. Dallmann). The Court acknowledges that the opinions of Ms. Walker and Mr. Dallmann may be afforded less weight, because they are not "acceptable medical sources" under the Social Security regulations. See Dickey v. Colvin, No. 2:13-cv-2463-EFB, 2015 U.S. Dist. LEXIS 40965, at *7 (E.D. Cal. Mar. 30, 2015) (noting that "[t]he applicable regulations [e.g., 20 C.F.R. 404.1513(e)(1)] provide that a therapist, although a treating medical source, is viewed as an `other source' and not as an `acceptable medical source'"); Dale v. Colvin, 823 F.3d 941, 947 (9th Cir. 2016) (stating that an "ALJ is entitled to give less weight to an `other source' medical opinion by providing `reasons germane to each witness for doing so'"). The ALJ's only comment in this regard was: "Ms. Walker is not an acceptable medical source but rather a Trainee, Licensed Marriage and Family Therapist. Her opinions are given no weight." AR 17. While Ms. Walker is, as the ALJ pointed out, simply a trainee therapist, see AR 17, Mr. Dallmann is not.
At bottom though, all of the treating sources have provided a consistent diagnosis of bipolar disorder, the ALJ rejected that diagnosis based entirely on the opinions of physicians who never even examined Mr. Michalski. See Lilienthal v. Astrue, No. C09-5185RBL, 2009 U.S. Dist. LEXIS 124389, at *8 (W.D. Wash. Dec. 21, 2009) ("[T]he ALJ rejected plaintiff's alleged bipolar disorder, despite the fact that every diagnosis by an examining source includes a finding of bipolar disorder. Rather than accept the persuasive medical opinion evidence, the ALJ adopts the onetime opinion of a non-examining physician, whose opinion is based solely on a review of the medical records"). The ALJ merely stated: "I afford great weight to the opinion of Dr. Cohen since he reviewed the record in its entirety and heard all of claimant's testimony, and he understands the social security disability program and its evidentiary requirements. Moreover, he has significant experience in treatment and research in addiction disorders. His opinion is reasonable and credible and is supported by the medical evidence of record." AR 16-17. Yet, the medical records of all the treating physicians contained a diagnosis of bipolar disorder.
Second, Dr. Cohen, the nonexamining physician on whom ALJ primarily relied, concluded that Mr. Michalski did not have bipolar disorder for two reasons: (1) because Mr. Michalski's manic episodes occurred only "when he goes on drinking binges" and alcohol abuse "can mimic manic episodes" and (2) because his manic episodes occurred only when he was not medication compliant. AR 51 (testimony of Dr. Cohen at ALJ hearing). But both of those reasons are problematic. As to (2), that is no reason to conclude that Mr. Michalski did not have bipolar disorder; at best, it would suggest that, if Mr. Michalski did have bipolar disorder (or a similar mood disorder), it could be controlled by medications. But notably, Dr. Eaton took note as early as May 2010 (i.e., a year before the manic episode that led to Mr. Michalski's month-long hospitalization) that multiple medications had been tried with little improvement. See, e.g., AR 259. Moreover, Mr. Michalski had been prescribed Zyprexa since at least 2010 to stabilize his mood, but, apparently he was not improving, as he was subsequently prescribed Lithium in March 2014, shortly before the hearing before the ALJ. See AR 37-38.
As for Dr. Cohen's statement that Mr. Michalski's manic episodes occurred only when he was abusing alcohol, the record is insufficient to establish that point. The May 2011 manic episode clearly had an alcohol abuse component, but there is nothing concrete in the record before the Court of the other manic episodes or hospitalizations (two of which occurred in 2002 and December 2012).
Moreover, even if Dr. Cohen were correct — i.e., that the manic episodes took place while Mr. Michalski was drinking, see, e.g., AR 230 (SF General Hospital medical record from May 2011) (indicating that the 2002 episode occurred when Mr. Michalski drank and became suicidal); AR 28 (ALJ hearing transcript) (Mr. Michalski testifying about the December 2012 incident and stating that he was intoxicated), and that alcohol abuse can mimic manic episodes — that in and of itself is not to establish that Mr. Michalski's conduct was caused by alcohol consumption only and not, in addition, by a mental impairment. Indeed, Dr. Eaton, in a Drug Addiction and Alcoholism Questionnaire, explained that "Bipolar I D/O frequently has co-occurring alcohol abuse which can exacerbate the condition, but does not cause it." AR 366. The DSM-V contains statements to a similar effect. See, e.g., DSM-V, available at
The Commissioner contends that, even if the ALJ did err in not crediting Dr. Eaton's diagnosis of bipolar disorder, that error is of no consequence because the formal diagnosis is not what is important; rather, what is important are the functional limitations resulting therefrom and, here, the ALJ did take into account nonexertional limitations that Mr. Michalski had as a result of any mental impairment. While the Commissioner's argument is not without some appeal, the Court is not persuaded. If the ALJ had fully credited Dr. Eaton's diagnosis of bipolar disorder — instead of just finding a mood disorder and social anxiety — it is hard to imagine that the ALJ would not have been more sympathetic to the claimed severe symptoms, as expressed by Mr. Michalski. In other words, ALJ Scott could well have found Mr. Michalski more credible, and affording such credibility could have affected the ALJ's assessment of Mr. Michalski's RFC. See Part II.C, infra (discussing credibility). If Dr. Eaton's opinion were credited, this likely would have directly impacted the ALJ's assessment of Mr. Michalski's functional limitations. With bipolar disorder, Mr. Michalski could have had major depression or experienced manic episodes requiring hospitalization, see DSM-V (noting that, for bipolar I disorder, major depressive episode may precede or follow a manic episode), which could well be in tension with the ALJ's assessed RFC — e.g., that Mr. Michalski would be off task only 5-10% of the workday and could sustain normal workplace attendance. See AR 14. Simply put, it is difficult to conclude a diagnosis of bipolar disorder would have been entirely irrelevant.
Accordingly, the Court concludes that the ALJ improperly rejected the opinion of Dr. Eaton and that this error infected not only step two of the five-step process but also the steps thereafter.
In light of the Court's ruling above, summary judgment in favor of Mr. Michalski is warranted. Nevertheless, the Court still addresses credibility, not only because it provides an independent ground in support of summary judgment in Mr. Michalski's favor but also because, as discussed below, the Court is remanding the case and thus Mr. Michalski's credibility will need to be reassessed.
Under Ninth Circuit precedent,
Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014).
In his decision, ALJ Scott found Mr. Michalski to be partially credible only, stating: "[T]he claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." AR 15. The ALJ did not, in his decision, explicitly identify why he reached that conclusion but it appears that the following affected his analysis:
The Court finds the ALJ's credibility assessment problematic for several reasons. First, as indicated by the discussion above, Mr. Michalski did provide objective medical evidence (e.g., Dr. Eaton's medical assessment
Second, the reasoning offered by ALJ Scott for rejecting Mr. Michalski's credibility is not clear and convincing. For instance:
Further, it appears that Mr. Michalski's demeanor at the ALJ hearing, if anything, supported his credibility. See AR 45-56 (ALJ hearing) (ALJ stating that "you just keep dropping your voice down" and "one way that will help is if you don't look down at the table [while you speak]"). This conduct is consistent with Mr. Michalski's claim that he feels severe anxiety and that he usually looks at the floor because he feels uncomfortable. See AR 46.
For the foregoing reasons, the Court concludes that the ALJ erred at the first step of his credibility analysis and further erred by failing to provide clear and convincing reasons for rejecting Mr. Michalski's credibility. Because the ALJ's analysis of credibility is problematic, the Commissioner's reliance on Carmickle v. Commissioner, 533 F.3d 1155 (9th Cir. 2008), is unavailing. See id. at 1162 (indicating that, even if some of the reasons given by an ALJ in support of an adverse credibility finding was erroneous, that could be harmless error if the remaining reasoning in support was supported by substantial evidence in the record).
Finally, Mr. Michalski contends that the ALJ erred in assessing what jobs could be performed based on his RFC. For example, Mr. Michalski asserts that he could not perform the jobs of estimator, linen room attendant, or shipping and receiving clerk because such jobs, under the Dictionary of Occupational Titles, required a "Reasoning Level" of 3 or 4 which is greater than his RFC. See, e.g., Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (stating that "there is an apparent conflict between the [RFC] to perform simple, repetitive tasks, and the demands of [a job with] Level 3 reasoning," which requires application of "commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and "[d]eal[ing] with problems involving several concrete variables in or from standardized situations"). Mr. Michalski further argues that he could not perform these jobs because of his nonexertional limitations — e.g., being off-task for up to 5-10% of a day. See Mot. at 24 (arguing that, under the Dictionary of Occupational Titles, a shipping and receiving weigher is subject to an exacting level of performance and that a linen room attendant has little opportunity for diversion).
Because the Court is reversing and remanding based on the bipolar and credibility issues discussed above, the Court need not address these final arguments, particularly because, on remand, the Commissioner may well need to reassess Mr. Michalski's RFC. E.
Finally, the Court concludes that a remand for further proceedings is warranted, and not an immediate award of benefits. To the extent Mr. Michalski suggests that the Court can make the step three determination itself, see 20 C.F.R. Part 404, Subpt. P, App. 1 (§ 112.04, addressing mood disorders) (stating that the required level of severity for these disorders is met if, e.g., the claimant has bipolar syndrome "with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes"), the Court does not agree. As noted in note 3, supra, a fuller record is needed for a proper step three (or even step four or five) analysis can be made. See, e.g., Treichler v. Comm'r of SSA, 775 F.3d 1090, 1105 (9th Cir. 2014) (indicating that a remand to the agency is proper where, e.g., not all essential factual issues have been resolved or the record is not fully developed).
For the foregoing reasons, the Court grants Mr. Michalski's motion for summary judgment, and denies the Commissioner's, but remands to the agency for further proceedings consistent with this opinion.
This order disposes of Docket Nos. 15 and 16.
