VIRGINIA K. DEMARCHI, Magistrate Judge.
Plaintiff Thomas Jay Johnson appeals a final decision by defendant Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381, et seq. The parties have filed cross-motions for summary judgment. Pursuant to the Court's order (Dkt. No. 16), each side also submitted statements of the administrative record. Dkt. Nos. 22-1, 23-1, 25. The matter was submitted without oral argument. Upon consideration of the moving and responding papers, the relevant evidence of record, and for the reasons set forth below, Mr. Johnson's motion for summary judgment is granted in part and denied in part, the Commissioner's cross-motion for summary judgment is granted in part and denied in part, and this matter is remanded for further proceedings consistent with this order.
A claimant is considered disabled under the Act if he meets two requirements. First, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). Second, the impairment must be so severe that a claimant is unable to do previous work, and cannot "engage in any other kind of substantial gainful work which exists in the national economy," considering the claimant's age, education, and work experience. Id. § 423(d)(2)(A).
In determining whether a claimant has a disability within the meaning of the Act, an Administrative Law Judge ("ALJ") follows a five-step sequential analysis:
At step one, the ALJ determines whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant is not disabled. If not, the analysis proceeds to step two.
At step two, the ALJ assesses the medical severity of the claimant's impairments. 20 C.F.R. § 416.920(a)(4)(ii). An impairment is "severe" if it "significantly limits [a claimant's] physical or mental ability to do basic work activities." Id. § 416.920(c). If the claimant has a severe medically determinable physical or mental impairment, or a combination of impairments, that is expected to last at least 12 continuous months, id. § 416.920(d), he is disabled. Id. § 416.920(a)(4)(ii). Otherwise, the evaluation proceeds to step three.
At step three, the ALJ determines whether the claimant's impairments or combination of impairments meets or medically equals the requirements of the Commissioner's Listing of Impairments. Id. § 416.920(a)(4)(iii). If so, a conclusive presumption of disability applies. If not, the analysis proceeds to step four.
At step four, the ALJ determines whether the claimant has the residual functional capacity ("RFC") to perform his past work despite his limitations. Id. § 416.920(a)(4)(iv). If the claimant can still perform past work, then he is not disabled. If the claimant cannot perform his past work, then the evaluation proceeds to step five.
At the fifth and final step, the ALJ must determine whether the claimant can make an adjustment to other work, considering the claimant's RFC, age, education, and work experience. Id. § 416.920(a)(4)(v). If so, the claimant is not disabled.
The claimant bears the burden of proof at steps one through four. The Commissioner has the burden at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
Where there is evidence of a mental impairment that allegedly prevents a claimant from working, the Social Security Administration ("SSA") has supplemented the five-step sequential evaluation process with additional regulations to assist the ALJ in determining the severity of the mental impairment, establishing a "special technique at each level in the administrative review process." 20 C.F.R. § 416.920a(a) (2016). First, the ALJ evaluates the claimant's "symptoms, signs, and laboratory findings" to determine whether the claimant has a "medically determinable mental impairment." Id. § 416.920a(b)(1) (2016). For each of the categories contained in the adult mental disorder listing, these specific symptoms, signs, and laboratory findings are described in Paragraph A. 20 C.F.R. pt. 404, Subpt. P., App. 1, § 12.00 (2016).
If the claimant has a "medically determinable mental impairment," the ALJ assesses the degree of the claimant's functional limitation in the four "broad functional areas" identified in "paragraph B" and "paragraph C" of the adult mental disorders listings. See 20 C.F.R. § 416.920a(c)(3) (2016); Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
If the ALJ determines that the claimant has a severe mental impairment that neither meets nor is equal to any listing, the ALJ must assess the claimant's residual functional capacity. 20 C.F.R. § 416.920(d)(3) (2016). This is a "mental RFC assessment [that is] used at steps 4 and 5 of the sequential process [and] requires a more detailed assessment by itemizing various functions contained in the board categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments . . . ." SSR 96-8p, 1996 WL 374184, at *4.
Mr. Johnson was born in 1965
The record is not entirely clear, but indicates that Mr. Johnson may have begun experiencing symptoms of schizophrenia, paranoia, and depression as early as 1996, which worsened after his parents passed away in 2002 and 2006. AR 42, 317, 323. He did not seek mental health treatment until October 2015. AR 321-28.
Mr. Johnson applied for SSI on June 20, 2014, alleging only that he was unable to work as of August 1, 2010 due to back and neck conditions, high blood pressure, and bleeding hemorrhoids. AR 176-86, 200. He later amended his alleged onset date to January 19, 2015. AR 277. Although his initial application did not list mental impairments, those mental impairments later became the focus of his claim for disability. AR 37; see also AR 277-84.
The record includes medical evidence from Mr. Johnson's treating physicians, nurse practitioners, and a psychology student supervised by examining physicians. The medical evidence spans the period of time from September 2015 to March 2016.
Dr. Chuang met with Mr. Johnson four times between October 2015 and March 2016.
At his first visit on October 2, 2015, Dr. Chuang noted that Mr. Johnson had no prior psychiatric history or treatment, but had been suffering from depression since the "mid 90s." AR 323. Dr. Chuang
Mr. Johnson stated that he was unable to work because he could not follow directions or understand them, had difficulty functioning at work, and could not get along with people. Id. Mr. Johnson also stated that he could not tolerate other people and avoided them because he was easily offended by them and thought they were "out to get him." Id. (stating also that he "cannot deal with being around a lot of people," that he felt "inferior, helpless, and depressed when he is around big crowds," and that he "often feels like other people are against him"). He admitted to hearing "funny noises" but was "unable or will not elaborate." AR 323; see also AR 325 (noting that Mr. Johnson "hears voices that call his name and often hears noises such as music"). Although he was "[v]ery irritable and preserverative," Dr. Chuang noted that Mr. Johnson was "[q]uite concrete in responses." AR 323. However, she also observed that Mr. Johnson claimed that he got along with his mother, but then said she would not allow him to stay with her when she was alive. When Dr. Chuang pointed out that inconsistency, Mr. Johnson seemed "startled and quite puzzled." Id. She noted that Mr. Johnson was a "[p]oor historian overall." Id. Mr. Johnson agreed to a trial of Risperdal to help with his depression and sleeping problems. Id.; see also AR 325 (noting Mr. Johnson's reports of depressive dreams related to his childhood and marriage).
Dr. Chuang saw Mr. Johnson on December 4, 2015 for a follow-up examination. AR 329-31. Mr. Johnson indicated that he had been taking Risperdal and Paxil, but he did not believe the Risperdal was working, as he still experienced auditory hallucinations that were "the same," although his sleep had improved. AR 330. Mr. Johnson asked to try a different medication instead of Risperdal, and agreed to try Haldol. Id. Dr. Chuang noted that he was "[n]ot as irritable as initial presentation" and that he was "more calm." Id. She also noted, "Interested in therapy groups then individual therapy." Id.
Dr. Chuang examined Mr. Johnson on January 5, 2016. AR 332-36. Although Mr. Johnson indicated that he continued taking his medications, he was "still depressed." AR 332. He stated that Haldol was better for him than Risperdal, which made him dizzy, but that he only felt 30% improved. Id. He declined any change in medication, "find[ing] that he can deal and manage with life a little better since being on Haldol." Id. Dr. Chuang noted that Mr. Johnson was not as irritable and disgruntled as when he first presented to the clinic pre-medication. Id. Mr. Johnson indicated his willingness to increase his Haldol dosage for further improvement in thought process and daily functioning, although he declined to take a morning dose "as sedating." Id. Dr. Chuang's notes also stated, "Therapy-not interested." AR 334.
Mr. Johnson's last recorded visit with Dr. Chuang took place on March 29, 2016. AR 342-44. He sought a refill for his prescriptions, stating that he still experienced auditory hallucinations, but that he was "more relaxed." AR 342. He still avoided people and admitted to "easy paranoia." Id. Dr. Chuang noted that he was "[s]omewhat less depressed with Paxil increase also, wants to stay on same doses." Id. Mr. Johnson told Dr. Chuang that he had not been sleeping well and was kicked out of the gym for dozing off, and inquired about the possibility of getting a doctor's note. Id. Dr. Chuang explained to him that a doctor's note likely would not help in his situation. Id. Dr. Chuang's notes again stated, "Therapy-not interested." Id. She refilled Mr. Johnson's prescriptions. AR 344.
Dr. Le is Mr. Johnson's treating psychiatrist who saw him at least four times between October 2015 and March 2016.
On Mr. Johnson's first visit on October 19, 2015, Dr. Le noted a history of schizophrenia, chronic paranoid type; obsessive-compulsive disorder; and borderline intellectual functioning. AR 328. At this point, Mr. Johnson had been taking Rispderal for a little more than two weeks, but did not report any benefits yet. Id. Mr. Johnson "continued to endorse paranoia (the people at EHC looking at him and not wanting him to eat)" as well as "OCD symptoms of excessive checking and feeling stuck when he checked and became lost in the process." Id. Dr. Le noted that Mr. Johnson was "quite preserverative" and repeated statements over and over. Id. Mr. Johnson was anxious and averted eye contact. Id. His hygiene and grooming were "fair," his mood anxious and depressed, and his affect tense and dysphoric. Id. He reported auditory hallucinations at night and sometimes during the day. Id.
Dr. Le saw Mr. Johnson for a medication evaluation on October 29, 2015. AR 329. Mr. Johnson reported sleeping better, but Dr. Le noted that he "continued to show moderate-to-severe paranoia and OCD symptoms," repeating statements over and over for reassurance. Id. Dr. Le advised Mr. Johnson to continue taking his medications and to expect benefits within two to three weeks. Id. Mr. Johnson's hygiene and grooming were "marginal," his mood anxious and depressed, his affect tense and dysphoric. Id. Dr. Le noted "mild early improvement" but that Mr. Johnson was "still symptomatic." Id. Dr. Le planned to continue the Risperdal and Paxil treatment. Id. He also wrote, "Group psychology" in his notes. Id.
Mr. Johnson returned to see Dr. Le on November 6, 2015. AR 329. He "continu[ed] to feel better on the meds" and "appeared to be more engaged, now that the meds have started to be effective for him." Id. Mr. Johnson discussed "being threated and attacked by others in the past" and asked Dr. Le for advice on how to react. Id. Dr. Le also "[d]iscussed psychology group attending here with patient for eventual 1:1 work." Id. Mr. Johnson's hygiene and grooming were again "marginal," but he was calm and cooperative. Id. He remained preserverative and repetitive "but less than before." Id. His mood was mildly anxious and depressed, and his affect mildly tense and dysphoric. Id. Dr. Le planned to continue the Risperdal and Paxil treatment and again noted, "Group psychology." Id.
Dr. Le completed a Mental Impairment Questionnaire (RFC & Listings) ("MIQ") on December 23, 2015. AR 315-20. The MIQ stated that Mr. Johnson suffered from, among other things, paranoid schizophrenia, OCD, and borderline intellectual functioning, and that his current Global Assessment of Function ("GAF")
Dr. Le concluded that Mr. Johnson was "unable to meet competitive standards" for all listed mental abilities and aptitudes needed to do unskilled work with the exception of using public transportation. AR 317-18. In support of that conclusion, Dr. Le explained:
AR 317. Dr. Le also noted that "Mr. Johnson usually presented to clinic in marginal hygiene and grooming. He was usually very paranoid and vigilant." AR 318.
With respect to Mr. Johnson functional limitations, Dr. Le found that he had moderate restrictions in activities of daily living, marked restrictions in maintaining social functioning and concentration, persistence or pace, and that he had three episodes of decompensation within 12 months, each of at least two weeks duration. AR 319. He also concluded that Mr. Johnson suffered from a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would likely cause him to decompensate. Id. Dr. Le further concluded that Mr. Johnson's mental impairments would cause him to be absent from work more than four days per month. Id.
Dr. Le saw Mr. Johnson again on February 19, 2016. AR 336. Mr. Johnson noted that the medications had been "helpful," and although he still experienced auditory hallucinations, "the intensity has decreased from 10 → 7 with recent Haldol dose increase." Id. Mr. Johnson did not want to change his medications at this time, although he agreed to increase his Paxil dosage. He "also appeared less stuck, though admitting to still feeling depressed." Id. Mr. Johnson's hygiene and grooming were again marginal, and he was "malodorous." Id. Dr. Le noted that he was less preserverative than previously, his mood was mildly anxious and depressed, and his affect was mildly tense and dysphoric. Id. Dr. Le observed that Mr. Johnson "continued to improve but still mildly impaired." Id.
In September 2015, Mr. Johnson began receiving care at the Santa Clara Valley Medical Center with Nurse Practitioner Mercy Egbujor, DNP. AR 321-23. The main purpose of his first visit was for evaluation for Santa Clara County's general assistance program, as Mr. Johnson asserted he could not work because of his back pain and mental health issues. AR 321. He reported symptoms of anxiety, depression, hallucinations, memory difficulty, and sleep disturbances. AR 322. With respect to his schizoaffective disorder, depressive type, Ms. Egbujor noted:
AR 322-23. With respect to his paranoid disorder, Ms. Egbujor noted, "Has difficulty trusting; has to `think about it' whether to get ordered tests and exams done. Admits that he feels that people are after him." AR 323.
Ms. Egbujor completed a "General Assistance Program — Request for Medical Information" form on September 22, 2015. AR 362. On that form, she checked the boxes for "physical" disability and "learning disabled," but not for "psychological" disability. She wrote that "depression, psychosis with paranoid tendencies, hear voices, low literacy, unable to read/write well" contributed to Mr. Johnson's disability. Id. She asserted that the disability was expected to last more than 12 months, that Mr. Johnson did not experience significant restriction of activities of daily living, but that there were significant deficiencies of concentration, persistence or pace. Id. She noted that Mr. Johnson was capable of only low stress jobs, that in her opinion, he was permanently disabled and unable to work, and that she supported an SSI disability claim. Id. When asked to indicate the objective evidence of the limitations she noted, Ms. Egbujor wrote "patient history." Id.
Ms. Couser examined Mr. Johnson on March 29, 2016 for his hemorrhoids. AR 344-47. She noted that he appeared alert and oriented and was in no apparent distress. AR 345. His mood, judgment, and orientation were within normal limits. Id. She noted that Mr. Johnson wanted to see his psychiatrist, as he felt depressed and was still hearing voices. AR 346. The medications "are helping but not completely." Id. Ms. Couser questioned Mr. Johnson twice about self-harm, and although Mr. Johnson indicated that he has "never tried to `kill or hurt' himself," he "has problems right now." Id. She assessed Mr. Johnson's mental health as "unstable . . . at this time with some psychosis and no relief from current medications." Id.
Psychology student Saskia DeVaughn interviewed Mr. Johnson and administered an array of neuropsychological tests over a period of approximately five hours on December 16, 2015. AR 332. She was supervised by Jodi Pinn, Ph.D, Irene Guerra, Ph.D, and Charles Preston, Ph.D. Id. Ms. DeVaughn's progress notes from that day noted that Mr. Johnson "was oriented to time and location, but was unable to name the specific name of the place." Id. At the beginning of the testing, he did not maintain eye contact. He displayed flat affect with linear and goal directed thought process with pessimistic content. Id.
The results of the neuropsychological examination were memorialized in a Neuropsychological Brief Screen Report which includes references to both Ms. DeVaughn and Dr. Pinn as authors of the report.
According to the report, Mr. Johnson complained of chronic fatigue and the resulting inability to focus on a task for more than 15 minutes. AR 356. He reported memory problems and difficulty in keeping track of what is being said during conversations. Id. He also complained of difficulties maintaining attention over long periods of time and difficulty carrying out multistep commands. Id.
With respect to his mental impairments, Mr. Johnson reported having been diagnosed with schizoaffective disorder, that he heard voices shouting his nickname and other sounds, and that he had thoughts that people were out to get him. AR 357. He also reported experiencing persistent depressive mood and isolating himself as a result. Mr. Johnson stated that he took frequent naps during the day, and that his medication had only been effective for his sleep. He described himself as becoming irritated frequently, experiencing sudden mood swings and low self-esteem, and having difficulty motivating himself. Id.
Mr. Johnson stated that his mental difficulties began after his parents, with whom he was close, passed away. He reported receiving financial and emotional support from one of his two sisters, but was troubled by the way his brothers and other people treat him because of his homelessness. Id. The report noted that Mr. Johnson "had considerable difficulty in recounting his occupational history" and "was a poor historian about his psychosocial and occupational past." Id.
The neuropsychological tests assessed Mr. Johnson's functioning in eight areas. His intellectual functioning fell in the "borderline range." AR 358. His performance on tasks measuring attention was variable: digit span and cancellation were within normal limits, visual scanning and motor speed were mildly impaired, and number and letter sequencing were severely impaired. Id. His performance on immediate memory tests were also variable: his ability to learn verbal information in a story format was mildly impaired, but his ability to learn a list over four trials was severely impaired. Id. His performance on delayed memory tests was worse: his ability to recall list words after a delay was mildly impaired, but his abilities to recognize that information among new information, to recall information in the story format presented earlier, and to recall a figure drawing were severely impaired. AR 358-59. Mr. Johnson's performance on visuospatial and constructional abilities was variable: line orientation was within normal limits, but figure copying and coding were severely impaired. AR 359. His language abilities were similarly variable: picture naming was within normal limits, semantic fluency was moderately impaired, and comprehension was severely impaired. Id. Mr. Johnson's reasoning and problem solving were impaired—in particular, his judgment about everyday pragmatic and safety situations was severely impaired. AR 359-60. The report notes that Mr. Johnson demonstrated impaired executive functions and that he had surprisingly superior performance on more difficult items, which suggested the "presence of confusion and active psychotic symptoms." AR 360. His emotional functioning test results could not be interpreted. Id.
On May 17, 2016, Dr. Preston, one of Ms. DeVaughn's supervisors, submitted a letter correcting some errors in the neuropsychological report. AR 363. Specifically, the letter noted that: (1) Mr. Johnson was 51 years old, not 55 years old; (2) Mr. Johnson was diagnosed with schizoaffective disorder with depressive, not manic symptoms; and (3) Mr. Johnson was married until 1996, not 2012. Id.
As discussed above, Mr. Johnson's application for SSI was denied initially and upon reconsideration. He requested a hearing before an ALJ. At the hearing, the ALJ received testimony from Mr. Johnson and from a vocational expert ("VE").
Mr. Johnson testified at length about his general living situation and daily activities, his symptoms, and his work history and difficulty functioning in work environments. AR 36-74.
Mr. Johnson testified extensively regarding his daily activities. When asked to describe his average day, Mr. Johnson testified:
AR 46-47. He testified that he would stay at Starbucks for half an hour or an hour, and then go to the library, where he would sit for hours not doing anything. AR 67.
Mr. Johnson testified that he has a membership to 24-Hour Fitness and that he would go to the gym at least once a day to take a shower. AR 52, 54. He testified that he usually did not work out at this facility, but may sit on an exercise bike for about 10 minutes. AR 52-53; see also AR 66 ("A. I used to like working out. Now I haven't did that in so long. Q. So when you go cycling, you don't really enjoy it? You just kind of do it and stop? A. I don't cycle now. I just walk to the gym and use my bike once in a while."). Mr. Johnson also uses the gym's sauna for five to ten minutes. AR 54.
Mr. Johnson further testified regarding his limited social interactions. He stated that he rarely spoke to anyone at the gym. AR 53 ("A. In the sauna, there are maybe like three people. It's a men's sauna. Q. Do you socialize while you're there? A. Rarely. I say hi, how are you doing or something like that. A couple of times I got assaulted a couple. . . . I didn't do anything about it."); AR 60 ("Q.. . . Like you said you go to the gym daily and I assume that at the gym most times you go there, there are other people there, right? A. Yes, but I don't socialize with them. I don't think they would socialize with me either. Q. Okay. Alright. Fa[i]r enough."). Mr. Johnson also testified that he did not associate with some of his family members or other friends:
AR 54-55. Mr. Johnson stated that he was disinterested in being with others. AR 67 ("Q.. . . Do you have any interest in being with other people? A. No I don't. Q. How come? A. It's just the way I am. I don't want to be around them.").
Mr. Johnson also described how his mental health impacted his experience at work, and eventually prevented him from keeping a job. AR 43-44 ("[A]t work I was having problems just show to work. And then half hour and my mind, you can say I just shut down."); see also AR 45, 47, 56-57, 58. He also testified regarding his symptoms, including auditory hallucinations, sleep disturbances, memory and attention problems, mood swings, paranoia, and depression. AR 42, 45-48, 51-52, 54, 57-60, 62, 66, 68-73.
In particular, Mr. Johnson testified that his auditory hallucinations caused him to walk away from his work. AR 69 ("A. It makes me really feel like I shouldn't be working. When I hear those voices, I shouldn't be there. It makes me upset that I'm there. Q. That's when you walk off? A. Yes."). He says that he still experiences these auditory hallucinations even though he is taking medication as prescribed. AR 69-70. He hears voices two to three times a week, including when he dreams, which irritates and upsets him, and also interferes with his sleep and ability to concentrate. AR 47, 57, 68-69. Mr. Johnson testified that he wakes up three to four times on a nightly basis. AR 68 ("[W]hen I hear like, I see things, I hear a voice call my name and I dream. I may wake up and I hear things, it makes my personality change too. Like I'm not all there. . . . [I]t just makes me shut down."). As a result, he is often fatigued and takes multiple naps a day, sometimes falling asleep in public areas like the library or at the gym. AR 54 ("A. Sometimes I'll sit there and I'll fall asleep too. I have sleeping problems. Q. So you sleep there like in the locker room or something? A. A couple of times in the afternoon, I'll sit in the sauna may be 5-10 minutes and I'll go out and I'll lay down. I'll lay down on the ground and fall asleep because of the stress of the day."); see also AR 68. He says he experiences decreased energy as a result of his hallucinations, anxiety, and depression. AR 69.
Mr. Johnson described his memory and attention problems. He testified, "If somebody tell[s] me something, it's like I can't, it doesn't, not always. Sometimes I can't really follow instruction. I have a loss of memory. Like you say it one time, you have to say it 3-4 different times. If I talk to someone on the phone and they tell me something to do like I have hard time comprehending, especially when it comes to reading." AR 70. He also testified that he could only hold his concentration on a particular task for 15 minutes, after which he might not be able to return to the task. AR 71. Mr. Johnson stated that he was easily distracted, although if he had assistance, he might be able to maintain concentration on a task for about an hour. AR 72. His attention impairment also led him to falling asleep at work. AR 58 ("It's like I have no attention span, no desire."). Throughout his testimony, Mr. Johnson often did not provide direct answers to questions asked of him. The following exchange is representative:
AR 48.
Mr. Johnson stated that he could not return to his sky cap job because of his mood swings. When asked how his mood swings interfere with his work, he said, "I guess my mood, I just, my mind wanders. I just can't really deal with it. . . . I think it has to do with my history and my, I guess my personality and it's how I really live in isolation. My brother says I'm a hermit. I can really say I have mental problems." AR 62. He stated, "It gets you so angry or frustrated and it's like I just shut down. I can't function and that's one, that happens a lot. . . . I just can't really function." AR 51-52.
Mr. Johnson also explained that his paranoia interfered with his ability to be with others and to interact with coworkers. AR 73 ("Q.. . . You stated that you fear other people are out to get you. Does this prevent you from interacting with others? A. Definitely. . . . I feel like they don't want me there. . . . I don't meet their standards.. . . It makes me irritated frustrated. . . . I just walk off."); see also AR 42, 60. In general, Mr. Johnson testified to his inability to be around others, particularly in a work environment: "Coworkers. Just a lot, just like I have problem working with society. I get irritated and frustrated. I guess because of all my problems. . . . My mind is really just. You know, I say that I'm good now. I'm okay now, but when I get caught up in that environment, I'll change. I'm afraid for myself. I'm afraid for others too." AR 59. When questioned what he meant by "that environment," Mr. Johnson specified, "a workplace environment." He explained that he had trouble even dealing with others on an individual basis. AR 60 ("Q. Like with lots of people, like a grocery store with lots of people? Is that? Are you okay? A. Even one-on-one.")
Mr. Johnson also described the medical treatment he had received so far. He stated that he currently sees Dr. Le twice a month for depression and takes his medications every day. AR 45-46, 65. He also sees other doctors as needed. AR 56. Despite taking medication, he stated that he still experiences depression symptoms on a daily basis, including sadness, thoughts of suicide, wanting to avoid other people, guilt, and worthlessness. AR 47, 66. When asked whether he had sought mental health treatment prior to 2015, Mr. Johnson responded:
AR 45. He later testified that he did not seek treatment prior to September 2015 in part because he lacked insurance. AR 64. His sister first took him to see a psychiatrist in October 2015. AR 65.
Mr. Johnson missed a consultative exam that the ALJ had scheduled for him. He testified that he received a letter advising him of the exam, but he did not understand it. AR 63. He indicated that he would attend a consultative exam if the ALJ ordered another one. Id. At this point, the ALJ asked:
AR 66. The ALJ did not order another consultative exam.
Vocational expert Kenneth Ferra testified at the hearing. AR 26, 75-79. The ALJ presented Mr. Ferra with a hypothetical claimant who can lift/carry 25 pounds frequently and up to 50 pounds occasionally, is able to stand, walk, and sit six hours in an eight-hour workday, but who is limited to performing simple repetitive tasks and occasional interactions with coworkers and the public. AR 76-77. Mr. Ferra testified that such a person could not perform Mr. Johnson's past work, but he or she could work as a cleaner, harvest worker, or hand packager. Id.
In response to questioning from Mr. Johnson's counsel, Mr. Ferra testified that a hypothetical person with "severely impaired judgment, severely being about 66 percent of the workday, but with impaired judgment about everyday pragmatic and safety situations, as indicated in" the neuropsychological report, and who could not be aware of normal hazards and take appropriate precautions, as indicated in Dr. Le's MIQ, could not perform any jobs. AR 78. Mr. Ferra also testified that a hypothetical person who is unable to remember work-like procedures, cannot remember or carry out short and simple instructions, and cannot sustain an ordinary routine without special supervision, as indicated in Dr. Le's MIQ, could not perform any jobs. Id. Finally, Mr. Ferra testified that a hypothetical person who was unable to ask simple questions or request assistance, accept instructions, and respond appropriately to supervisors or coworkers, as indicated in Dr. Le's MIQ, could not perform any jobs. AR 79.
At step one of the sequential analysis, the ALJ found that Mr. Johnson had not engaged in substantial gainful activity since the alleged onset date of January 19, 2015. At step two, the ALJ found that Mr. Johnson has the following severe impairments: schizoaffective disorder, depression, and anxiety (20 C.F.R. § 416.920(c)). The ALJ found that Mr. Johnson did not suffer from any medically determinable physical impairments.
At step three, the ALJ determined that, Mr. Johnson did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d), 416.925, and 416.926). The ALJ engaged in the paragraph B analysis and found that Mr. Johnson did not satisfy the paragraph B criteria. Specifically, the ALJ found that Mr. Johnson's testimony that he gets up, takes a five minute walk to Starbucks for coffee, goes to the library and sits there, and also sometimes takes public transportation or rides his bike suggests that Mr. Johnson has no limitations in activities of daily living. AR 21. However, because Mr. Johnson is homeless and his medical care providers occasionally observed that his grooming and hygiene appeared "marginal," the ALJ found a mild restriction in activities of daily living. Id. With respect to social functioning, the ALJ noted that Mr. Johnson's repeated testimony that he does not like people and does not get along with others was consistent with what he told his medical providers, but that other medical reports indicated that he was consistently "cooperative" and "demonstrated good eye contact" on other occasions. Id. Because Mr. Johnson testified that he has a gym membership "where he exercises and speaks to others while using the sauna," the ALJ determined that a finding of moderate limitation "
The ALJ also engaged in the paragraph C analysis and found that Mr. Johnson did not satisfy the paragraph C criteria either. Again, the ALJ noted that "there have been no repeated episodes of decompensation." Id. The ALJ also concluded that Mr. Johnson did not have a "residual disease process" such that even a minimal increase in mental demands would cause him to decompensate, and as a homeless person, Mr. Johnson lived in various shelters and thus did not require a "highly supportive living arrangement." Id. Having determined that Mr. Johnson's impairments did not meet or equal a listed impairment, the ALJ proceeded to step four.
At step four, the ALJ determined that Mr. Johnson was not able to perform his past work as a sky cap, but that he has the RFC to perform work at all exertional levels with the following non-exertional limitations: simple, repetitive tasks, and only occasional interactions with co-workers and the public. Id. In so concluding, the ALJ gave only some weight to treating physician Dr. Le's MIQ opinion, only some weight to the neuropsychological report to the extent it was "based on clinical testing," and only very little weight to Ms. Egbujor's opinion. AR 25-26. Based on Mr. Ferra's testimony, the ALJ concluded that Mr. Johnson was "not disabled." AR 26-28.
The Appeals Council denied Mr. Johnson's request for review, and the ALJ's decision became the Commissioner's final decision. Mr. Johnson now seeks judicial review, arguing that the ALJ erred by (1) concluding, at step three of the sequential analysis, that his impairments did not meet or equal the severity of listed impairments; (2) improperly discrediting or discounting entirely the opinions of Dr. Le and Ms. Egbujor and the neuropsychological report; and (3) improperly assessing Mr. Johnson's own reports of the severity of his symptoms. The Commissioner contends that the ALJ's decision is correct and free of legal error.
Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner's decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance—it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.
Mr. Johnson contends that the ALJ erred in two main respects. First, he argues that the ALJ erred at step three of the sequential evaluation by failing to find that his impairments met or equaled a listed impairment. Second, Mr. Johnson argues that, in determining that he has the RFC to perform unskilled work at all exertional levels with certain non-exertional limitations, the ALJ improperly discredited Dr. Le's and Ms. Egbujor's opinions and the neuropsychological report. Relatedly, Mr. Johnson contends that at both steps three and four, the ALJ erred in rejecting his statements regarding his symptoms and functional limitations as not credible. Because the resolution of the third issue raised by Mr. Johnson—i.e., the ALJ's rejection of Mr. Johnson's statements regarding his symptoms and functional abilities as not credible—informs the first and second issues regarding the ALJ's step three and step four analyses, the Court addresses the ALJ's credibility assessment first.
In finding that Mr. Johnson is not disabled, the ALJ concluded that "[a]lthough the record supports the severe mental impairments found herein, evidence in the record does not support the severity of symptoms as alleged by the claimant." AR 23. Mr. Johnson argues that the ALJ's primary reliance on what he described as fatal inconsistencies in Mr. Johnson's testimony was error. Dkt. No. 22 at 16. The Commissioner responds that Mr. Johnson is simply advancing an alternate interpretation of the evidence, and the ALJ's conclusion was supported by substantial evidence. Dkt. No. 23 at 8.
In evaluating the credibility of a claimant's testimony regarding subjective symptoms, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (internal citations and quotation marks omitted). The claimant is not required to show that his impairment "could reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could reasonably have caused some degree of the symptom." Id. (internal quotation omitted). "[O]nce the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity . . . ." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (internal citation omitted). At the second step, unless there is affirmative evidence showing that the claimant is malingering, "the ALJ can reject the claimant's testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). (internal citations omitted).
Because the ALJ did not find that Mr. Johnson was malingering, he was required to provide clear and convincing reasons to justify his rejection of Mr. Johnson's testimony about his symptoms. The Court concludes that the ALJ failed to do so.
The ALJ concluded that Mr. Johnson's medically determinable mental impairments could reasonably be expected to cause the symptoms he alleges, such as an inability to get along with others, hearing voices or noises, thoughts of suicide, being offended easily, thinking that people are "out to get him," and feelings of inferiority, helplessness, and depression in large crowds. AR 23. Neither party challenges this conclusion.
The ALJ determined that Mr. Johnson's statements regarding the intensity, persistence, and limiting effects of the symptoms are inconsistent with the medical evidence and other evidence in the record. In particular, the ALJ concluded that objective medical evidence, Mr. Johnson's improvement following medication, his inconsistent reports to medical care providers, and his testimony regarding his activities of daily living did not support his alleged severity of symptoms.
The ALJ noted that objective medical evidence consistently showed that when Mr. Johnson visited his doctors, he was "alert and oriented," "cooperative," demonstrated "normal psychomotor activity," and had fair and/or intact insight and judgment. AR 23; but see supra n.4. As the Commissioner acknowledges, the ALJ was not permitted to rely solely on objective medical evidence in rejecting Mr. Johnson's statements about his symptoms. Dkt. No. 23 at 4; see also SSR 16-3p, 2017 WL 5180304, at *5 (Oct. 25, 2017)
The ALJ noted that Mr. Johnson's symptoms showed improvement after he began taking medication, concluding that the symptoms were therefore less severe than Mr. Johnson asserted. AR 24. However, the Ninth Circuit has emphasized that "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 v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Furthermore, reports of "improvement" in the mental health context "must also 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 a workplace. Caution in making such an inference is especially appropriate when no doctor or other medical expert has opined, on the basis of a full review of all relevant records, that a mental health patient is capable of working or is prepared to return to work." Id. at 1017-18 (internal citations omitted).
Here, no physician or other medical expert ever opined that Mr. Johnson was capable of working or was prepared to return to work. The ALJ thus relied too heavily on indications in the medical record that Mr. Johnson's symptoms showed improvement after receiving medication, while ignoring other contrary evidence. For example, Dr. Le concluded that Mr. Johnson "has been compliant with taking meds and clinic follow up, with partial response to medications" and that his "symptoms [have been] reduced with meds, but Mr. Johnson has continued to have moderate residual auditory hallucination and paranoia." AR 315. Dr. Le also observed that the "medications have started to decrease his paranoia and enable him to come to clinic regularly for assessment. Yet, he is still very grossly impaired from years of untreated symptoms and chronic homelessness (since 1996). He has remained very paranoid in unfamiliar and crowded situation[s]." AR 317. Additionally, the neuropsychological exam—which Ms. DeVaughn administered after Mr. Johnson had been taking medications for over two months (compare AR 356 with AR 325)—demonstrated variable attention, impaired immediate and delayed memory, and impaired executive functions. AR 360. Further, following Mr. Johnson's most recent visit with Dr. Chuang on March 29, 2016, Dr. Chuang noted that Mr. Johnson "[a]voids people still, admits to easy paranoia." AR 342. Moreover, the ALJ did not address the most recent evidence in the record from Ms. Couser, which is inconsistent with the conclusion that Mr. Johnson's symptoms had improved to any substantial degree. AR 346 (noting that "Medications are helping but not completely. Feels depressed, still hearing voices. . . . Unstable [mental health] at this time with some psychosis and no relief from current medications.").
The ALJ stated that he "could not overlook . . . Dr. Chuang's report that the claimant is a `poor historian overall.'" AR 24. Apparently, the ALJ believed that Mr. Johnson's status as a "poor historian" supported discrediting his testimony. The ALJ did not address at all the possibility that Mr. Johnson's status as a "poor historian" was a reflection of his mental impairment. However, SSR 16-3p states:
SSR 16-3p, 2017 WL 5180304, at *11.
The ALJ's assessment of the evidence of improvement in Mr. Johnson's symptoms following medication improperly ignores evidence of insufficient improvement. This assessment is not a legally sufficient basis for discrediting Mr. Johnson's testimony concerning the severity of his symptoms.
The ALJ also relied on purported inconsistencies between Mr. Johnson's hearing testimony and statements made to his medical examiners in discounting Mr. Johnson's credibility. First, the ALJ noted that Mr. Johnson told Dr. Chuang or her staff that his family had emotionally abused him by making derogatory remarks, threatening to throw him out on the street, and denying him access to food. The ALJ found these statements inconsistent with Mr. Johnson's testimony that one of his sisters gives him some financial assistance and allows him to use her mailing address. The record reveals no such inconsistency. Mr. Johnson testified that the only members of his family with whom he is still in contact are one sister and one brother. AR 74; see also AR 54 ("Q. Okay. And do you associate with your family members at all? A. My other brother that filled out my, really he, he really mentally abused me when I was up there for a year in Stockton. Q. Okay. So you don't associate with him anymore? A. No."). The medical records indicate he also told his medical examiners that he is in contact with one sister and one brother, but not his other siblings. AR 342 ("talks with one sister in SJ and a brother in Stockton, doesn't talk to other brothers or sisters"); AR 356 ("Mr. Johnson was born and raised in San Jose living with mother and father, as well as his 4 brothers and two sisters. . . . [H]e receives financial and emotional support by one of his sisters. Currently Mr. Johnson is troubled by the way his brothers as well as other people treat him as a result of his homelessness."). Although the number of Mr. Johnson's siblings may have created some confusion, there is nothing inconsistent about Mr. Johnson remaining in contact with family members who treat him well and do not emotionally abuse him, and avoiding contact with others.
Second, the ALJ criticized Mr. Johnson for stating that he "goes to group therapy," but also stating that he "missed a few months" and that he "didn't know how many times I went . . . ." AR 24. The ALJ appears to have concluded that Mr. Johnson rejected recommended treatment, and that he dissembled about whether he did or did not attend group therapy. The ALJ observed that "[i]f impairment-related symptoms are as severe as the claimant alleges, it is reasonable that the claimant would pursue any treatment options offered by medical professionals." AR 24. This conclusion is problematic. An examination of Dr. Chuang's treatment notes reveals recommendations for both group therapy and individual therapy. The record is ambiguous regarding whether Mr. Johnson ever attended group therapy, and if he did, whether it was effective. See AR 342, 330.
Additionally, the ALJ took special note of statements in Dr. Chuang's progress notes from her initial examination of Mr. Johnson to support his finding that Mr. Johnson's testimony was inconsistent with other evidence in the record. The ALJ noted that during his visit with Dr. Chuang, Mr. Johnson stated that he "gets along with mother, but then says she wouldn't allow him to stay with her when she was alive, when interviewer pointed out inconsistency, seems startled and quite puzzled." AR 24 (citing AR 323). This single incident, which occurred prior to Mr. Johnson receiving any mental health treatment, is at most a minor inconsistency that appears to concern his relationship with his deceased mother, rather than the severity of his symptoms. Standing alone, this minor inconsistency about a collateral matter cannot support an adverse credibility determination under the clear and convincing standard. See, e.g., Todd v. Astrue, No. 11-cv-782-DTB, 2011 WL 5909840, at *3 (C.D. Cal. Nov. 28, 2011); Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997) ("Generally, minor inconsistencies and minor omissions relating to unimportant facts will not support an adverse credibility finding."); Hatcher v. Sec'y, Dep't of Health and Human Servs. 898 F.2d 21, 24 (4th Cir. 1989) (holding that a "minor inconsistency in testimony" is not sufficient for purposes of adverse credibility finding).
A claimant's daily activities may support an adverse credibility finding if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions or skills that are transferable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ found that "the claimant's activities of daily living do not lend support [to] the level of severity he alleges." AR 24. In so finding, the ALJ mischaracterized Mr. Johnson's testimony at the hearing and selectively quoted it out of context. Specifically, the ALJ stated that Mr. Johnson's "ability to bike to Starbucks to enjoy a cup of coffee, to go to the library, to go to the gym and bike and use the sauna, are specific examples of intact social functioning and concentration and persistence that are relevant to evaluating his ability to perform basic work activity." Id. However, that characterization of Mr. Johnson's description of his activities is not supported by the record.
When he visits Starbucks, the gym, and the library, Mr. Johnson does not engage in the normal activities that one would expect at those locations. For example, Mr. Johnson testified that his purpose in going to the gym is to bathe himself, and he repeatedly confirmed that he does not go there to exercise. AR 52-53 ("Q. Do you work out at this facility? A. No, I don't. . . Sometimes I may sit on a cycle for about 10 minutes."); AR 54 ("Q.. . . And you get to the gym, how often do you go to the gym[,] a couple times a week? A. I usually go every day so I can take a shower."); AR 66 ("A. I used to like working out. Now I haven't did that in so long. Q. So when you go cycling, you don't really enjoy it? You just kind of do it and stop? A. I don't cycle now. I just walk to the gym and use my bike once in a while."). In fact, Mr. Johnson has fallen asleep at the gym and the library on multiple occasions, and been asked to leave. AR 54 ("A. Sometimes I'll sit there and I'll fall asleep too. I have sleeping problems. Q. So you sleep there like in the locker room or something? A. A couple of times in the afternoon, I'll sit in the sauna maybe 5-10 minutes and I'll go out and I'll lay down. I'll lay down on the ground and fall asleep because of the stress of the day."); AR 68-69 ("A. Yes, sometimes I fall asleep at the library. . . . Q. Okay. Have you ever fallen asleep at the gym? A. Yes, a couple of times. Q. Couple of time[s]? What happened when you fell asleep? A. They woke me up. Q. They woke [you up]? Did they let you stay there? A. No.").
When asked to describe his average day, what time he gets up, where does he get breakfast, and so forth, Mr. Johnson responded that he normally gets up at 9:00 and walks to Starbucks for coffee for a half hour or hour, and then he goes to the library and sits there for hours—not using any of the library's services or doing anything else, but just sitting there. AR 46-47; AR 67 ("Q. You just sit there? A. Yes. Q. For how long? . . . You'll just sit at the library for four hours and not do anything, just sit there? A. I just sit there."). Additionally, Mr. Johnson repeatedly testified that he does not socialize with others at those places and, in fact, is not interested in social interactions. AR 53 ("Q. Talk to anybody there? A. Rarely. In the sauna, there are maybe like three people. It's a men's sauna. Q. Do you socialize while you're there? A. Rarely. I say hi, how are you doing or something like that. A couple of times I got assaulted a couple."); AR 60 ("Q. Like with lots of people, like a grocery store with lots of people? Is that? Are you okay? A. Even one-on-one. Q. Is it really infrequent. Like you said you go the gym daily and I assume that at the gym most times you go there, there are other people there, right? A. Yes, but I don't socialize with them. I don't think they would socialize with me either. Q. Okay. All right. Fa[i]r enough."); see also AR 67 ("Q. How about, does this loss of interest affect your interaction with people? Do you have any interest in being with other people? A. No I don't."). Furthermore, Mr. Johnson testified that walking to Starbucks, sitting on an exercise bike at the gym, and using the sauna are activities of short duration. AR 46 (five minute walk to Starbucks); AR 53 ("Sometimes I may sit on a cycle for about 10 minutes."); AR 54 ("I'll sit in the sauna maybe 5-10 minutes . . . .").
Mr. Johnson's testimony does not support the ALJ's conclusion that these activities are examples of "intact social functioning and concentration and persistence that are relevant to evaluating his ability to perform basic work activity." AR 24. The ALJ appears not to have considered that these activities are examples of behaviors of a person who is chronically homeless and seeking to avoid being out on the street. Having mischaracterized the nature of the activities in which Mr. Johnson engaged, the ALJ cannot rely on that mischaracterization to discredit Mr. Johnson's testimony regarding the severity of his symptoms.
Even if the Court were to accept the ALJ's findings regarding Mr. Johnson's daily activities, the ALJ did not point to any evidence showing that these daily activities were transferable to a work environment. The ALJ did not explain how getting coffee, sitting and doing nothing at the library for hours, showering at the gym, and sitting on a stationary bike or in the sauna for five to ten minutes are activities that transfer to a work setting. Because the ALJ did not make "specific findings relating to [the daily] activities and their transferability," his conclusion that Mr. Johnson's daily activities warrant an adverse credibility determination was error. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Because the ALJ did not provide clear and convincing reasons to discredit Mr. Johnson's testimony regarding the severity of his symptoms, Mr. Johnson's motion for summary judgment is granted on this point, and the Commissioner's cross-motion is denied.
In determining that Mr. Johnson's impairments do not meet or equal a listed impairment and that he has the RFC to perform some work, the ALJ gave only some weight to treating physician Dr. Le's MIQ. In addition, the ALJ classified Ms. Egbujor's certification of disability for general assistance and the neuropsychological report as "other source" opinions, assigning the former "very little weight" and the latter only "some weight" insofar as it was based on clinical testing. Mr. Johnson argues that the ALJ should have given Dr. Le's medical source statement and the neuropsychological report controlling weight, and that the ALJ erred in giving Ms. Egbujor's medical source statement only very little weight. The Commissioner maintains that the ALJ gave good reasons supported by substantial evidence for his assessment of this medical evidence.
"Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." Id.
A treating physician's opinion is entitled to "controlling weight" if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 C.F.R. § 416.927(c)(2). "However, `[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.'" Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)).
When an ALJ gives a treating physician's opinion less than controlling weight, the ALJ must do two things. First, the ALJ must consider other factors, including the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with the record, and specialization of the physician. 20 C.F.R. § 416.927(c)(2)-(6); see also Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
Second, the ALJ must provide reasons for rejecting or discounting the treating physician's opinion. The legal standard that applies to the ALJ's proffered reasons depends on whether or not the treating physician's opinion is contradicted by another physician. When a treating physician's opinion is not contradicted by another physician, the ALJ must provide "clear and convincing" reasons for rejecting or discounting the opinion, supported by substantial evidence. Id. at 675. When a treating physician's opinion is contradicted by another physician, an ALJ must provide "specific and legitimate reasons" for rejecting or discounting the treating physician's opinion, supported by substantial evidence. Id. "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quotations and citation omitted).
Dr. Le concluded that Mr. Johnson was "unable to meet competitive standards" for nearly all mental abilities and aptitudes required for unskilled work; that he exhibited moderate or marked limitations in activities of daily living, social functioning, concentration, persistence or pace; and that he had experienced at least three episodes of decompensation, each of at least two weeks' duration. AR 317-19. Dr. Le also concluded that Mr. Johnson's mental impairments would cause him to be absent from work more than four days per month. AR 319.
The ALJ considered Dr. Le's MIQ at step four, but discounted it and assigned it only "some weight." AR 25. No other physician contradicted Dr. Le's opinion, so the ALJ was required to provide clear and convincing reasons for giving the opinion less than controlling weight. The ALJ cited two reasons for discounting Dr. Le's MIQ. First, he found that evidence in the record did not substantiate Dr. Le's opinion. Second, he found that Mr. Johnson's testimony did not support Dr. Le's findings of extreme limitations. The Court finds that these reasons are not supported by substantial evidence in the record and do not meet the clear and convincing standard.
While the ALJ need not give controlling weight to a treating physician opinion that is conclusory or inadequately supported, the ALJ does not criticize Dr. Le's opinion on these grounds. Rather, the ALJ asserts without explanation that "Dr. Le's extreme limitations are simply not substantiated by evidence in the record . . . ." AR 25. "[A]n 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." Garrison, 759 F.3d at 1012-13 (internal citation omitted). The ALJ has not adequately explained how Dr. Le's opinion is inconsistent with other evidence in the record.
The ALJ also found Dr. Le's opinion inconsistent with Mr. Johnson's own testimony regarding his daily activities. AR 25. As discussed above, however, the ALJ has mischaracterized that testimony. But even if the Court accepted the ALJ's characterization, there is no support in the record for the ALJ's summary conclusion that these purported daily activities "demonstrate[] mental ability to perform simple, repetitive tasks" and "appropriate social functioning." See id.
Finally, the ALJ failed to discuss any of the factors listed in 20 C.F.R. § 416.927(c)(2)-(6), including the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with the record, and specialization of the physician. See Trevizo, 871 F.3d at 676.
For these reasons, the ALJ's decision to give Dr. Le's opinion less than controlling weight is not supported by clear and convincing reasons and substantial evidence.
The ALJ correctly concluded that Ms. Egbujor was an "other source." Under the operative regulations governing this appeal, nurse practitioners do not qualify as acceptable medical sources. 20 C.F.R. § 416.913(d)(1) (2016)
Although "[t]he ALJ may discount testimony from these `other sources' if the ALJ gives reasons germane to each witness for doing so," Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (discussing 20 C.F.R. § 404.1513(a)) (quotations and citation omitted), the ALJ failed to do so here. The record shows that Ms. Egbujor saw Mr. Johnson on September 23, 2015 and again on October 7, 2015. AR 325, 334. In his decision, the ALJ gave Ms. Egbujor's opinion that Mr. Johnson was unable to engage in basic work activities "very little weight" because her report relied on "patient history," and because the ALJ had identified "notable inconsistencies in the claimant's history . . . throughout this decision." AR 26. As discussed above, the ALJ's conclusion concerning Mr. Johnson's credibility contained numerous errors. Because his chief criticism of Ms. Egbujor's opinion was that it relied solely upon Mr. Johnson's "patient history," those same flaws appear to have influenced the weight he gave to her opinion.
The Commissioner correctly observes that Ms. Egbujor's medical source statement dates to her first encounter with Mr. Johnson, before he received the benefit of any medication and professional counseling. Dkt. No. 23 at 11. However, the ALJ did not identify that fact as a reason for his rejection of Ms. Egbujor's opinion, and the Court may not rely on reasoning that the ALJ did not express. Bray, 554 F.3d at 1226.
The Court therefore finds that the ALJ failed to provide germane reasons based on substantial evidence for discounting Ms. Egbujor's opinion.
The ALJ classified the neuropsychological report as "other source" medical information instead of a medical source statement, and gave it some weight insofar as it was based on clinical testing. AR 26. Mr. Johnson contends that the ALJ should have considered the report a medical source statement authored by at least Dr. Pinn, and should have given it controlling weight.
There is no dispute that Ms. DeVaughn was not a licensed psychologist, and therefore her opinion could not have been considered an acceptable medical source. 20 C.F.R. § 416.913(d)(1) (2016)
The ALJ appears to have assumed without explicitly finding that Ms. DeVaughn was the author of the report. See AR 26 (referring to "Ms. DeVaughn's reports" and "Ms. DeVaughn's statement"). The report contains signature lines at the end for both Ms. DeVaughn and Dr. Pinn, but neither signature line was signed. AR 356. Ms. DeVaughn entered progress notes into Mr. Johnson's medical record on December 16, 2015, stating that she conducted the tests under the supervision of Dr. Preston. AR 332. However, Dr. Pinn entered her own progress notes on February 5, 2016, with the "Author" field stating "Jodi L. Pinn, PHD" and the "Note Status" field stating "Signed." AR 356.
The Commissioner argues that Dr. Preston's May 17, 2016 letter concerning errors in the report "underscores the unreliable nature of Ms. DeVaughn's report, and his need to closely supervise Ms. DeVaughn's work as a practicum student . . . ." Dkt. No. 23 at 12. The Commissioner's reliance on Dr. Preston's letter is unpersuasive. None of the errors corrected by Dr. Preston impacts Mr. Johnson's test results. Although the misstatement that Mr. Johnson suffers from schizoaffective disorder with manic symptoms as opposed to depressive symptoms could be considered substantive, the other corrections are minor and non-substantive. Moreover, elsewhere, the report correctly notes that Mr. Johnson's DSM-V diagnosis is "Schizoaffective Disorder, Depressive type, Unspecified 295.70 (F25.1)." AR 361. At any rate, the ALJ's decision does not mention these corrections, and the Commissioner's attempt to use them now as support for the ALJ's opinion is impermissible. Bray, 554 F.3d at 1226 ("Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.").
The Commissioner notes that even if the report were actually authored by one of the supervising doctors, they were examining physicians, and therefore their opinion would not have been entitled to controlling weight. Dkt. No. 23 at 13 (citing 20 C.F.R. §§ 416.902, 416.927(c)(2)). This point is well taken, and Mr. Johnson does not dispute it.
The ALJ's decision to give the report "some weight" as "other source" medical evidence is supported by evidence in the record, even if that evidence is susceptible to more than one rational interpretation. The Court therefore affirms the ALJ's decision to give some weight to the neuropsychological report.
Because there is not substantial evidence to support the ALJ's decision to discount Dr. Le's and Ms. Egbujor's opinions, Mr. Johnson's motion for summary judgment is granted on this point. However, because there was substantial evidence to support giving only some weight to the neuropsychological report, the Commissioner's cross-motion is granted with respect to that issue. As the ALJ's errors with respect to Dr. Le and Ms. Egbujor are not harmless, the Court must remand for appropriate reconsideration of their opinions. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as amended); see also Burch, 400 F.3d at 679.. In particular, if the ALJ finds on remand that Dr. Le's opinion deserves less than controlling weight, he must articulate legally sufficient reasons for doing so and must state what, if any, weight he affords that opinion.
Mr. Johnson argues that the ALJ's determination that his impairments did not meet or equal a listed impairment was erroneous because the ALJ failed to consider and properly weigh Dr. Le's MIQ and the neuropsychological report. As discussed, the Commissioner maintains that the ALJ properly discounted those opinions.
In conducting his step three special technique analysis, the ALJ considered three Listings: 12.03 (Schizophrenic, Paranoid and Other Psychotic Disorders), 12.04 (Affective Disorders) and 12.06 (Anxiety and Obsessive-Compulsive Disorders). AR 21-22. At the time the ALJ rendered his decision in September 2016, each of these listings was satisfied by meeting the requirements of both paragraphs A and B, or paragraph C alone.
20 C.F.R. pt. 404, Subpt. P., App. 1, §§ 12.03, 12.04 (2016). Mr. Johnson does not appeal the ALJ's determination with respect to Listing 12.06, and the Court therefore addresses only Listings 12.03 and 12.04.
Paragraph A requires "medically documented persistence" or "medically documented findings" of specific symptoms, signs, or laboratory findings. 20 C.F.R. pt. 404, Subpt. P., App. 1, §§ 12.03, 12.04 (2016). The ALJ apparently assumed the existence of the paragraph A criteria for all three listings, as he did not discuss whether the paragraph A criteria were met. See AR 21-22. Instead, the ALJ's analysis focused almost exclusively on whether the paragraph B and C criteria had been satisfied for the listings at issue.
Neither Mr. Johnson nor the Commissioner dispute the ALJ's assumption that the paragraph A requirements were satisfied for both Listings 12.03 and 12.04. However, if the ALJ's failure to discuss whether Mr. Johnson satisfied the applicable paragraph A requirements was error, it was harmless, because it was inconsequential to his ultimate nondisability determination. Tommasetti v. Astrue, 533. F.3d 1035, 1038 (9th Cir. 2008).
Mr. Johnson argues that the ALJ's determination that he did not satisfy the paragraph B requirements was error, focusing on the ALJ's failure to consider Dr. Le's MIQ, Ms. Egbujor's opinion, and the neuropsychological report in the paragraph B analysis. The Commissioner responds that the ALJ properly rejected those pieces of evidence and found that Mr. Johnson did not meet the listings.
The ALJ's paragraph B analysis relied primarily on medical progress notes from examining physicians (Exhibit 5F) and Mr. Johnson's testimony at the hearing. In finding that Mr. Johnson's impairments only pose a mild restriction on his activities of daily living, the ALJ noted that Mr. Johnson's testimony that he walks to Starbucks for coffee and then visits the library, sometimes using public transportation and sometimes riding his bike, suggests no restrictions, but the fact that Mr. Johnson is homeless and his doctors observed that his grooming and hygiene appeared "marginal" led the ALJ to conclude that Mr. Johnson is only mildly restricted in daily living. AR 21. As discussed above, the ALJ mischaracterized Mr. Johnson's testimony regarding his daily activities and limitations, and therefore his reliance on that mischaracterization in the paragraph B analysis resulted in error. Moreover, the ALJ altogether failed to address Dr. Le's MIQ observing that Mr. Johnson exhibited moderate restrictions in the activities of daily living, which likewise constituted error. AR 319.
The ALJ determined that Mr. Johnson had moderate difficulties with social functioning. Although the ALJ acknowledged conflicting medical reports about the severity of Mr. Johnson's social functioning, he noted that Mr. Johnson "testified that he maintains gym membership at `24 Hour Fitness' where he exercises and speaks to others while using the sauna." AR 21. Based on the medical reports and Mr. Johnson's visits to the gym, the ALJ determined that a finding of "moderate" limitation "
The ALJ's determination concerning Mr. Johnson's concentration, persistence, and pace similarly relied on the ALJ's improper evaluation of Mr. Johnson's credibility and, correspondingly, Ms. Egbujor's opinion. The ALJ stated that Mr. Johnson's "ability to exercise daily, is additional evidence of ability to concentrate." AR 22. As discussed above, Mr. Johnson's testimony revealed that his primary purpose in going to the gym was to shower, not to exercise, and when he sat on an exercise bike, he did so only for 10 minutes at a time. AR 52-53, 54, 66. That testimony is not substantial evidence in support of Mr. Johnson's ability to concentrate, persist, or maintain pace in a workplace environment.
The ALJ also failed to consider Ms. Egbujor's opinion in his paragraph B analysis altogether. Although she opined that Mr. Johnson exhibited significant deficiencies of concentration, persistence, or pace, the ALJ assigned her opinion very little weight solely because her opinion was based on Mr. Johnson's reports to her, and the ALJ found Mr. Johnson's own testimony to be less than credible. AR 22, 26. The ALJ's mischaracterization and discrediting of Mr. Johnson's testimony (including his testimony about exercise) and subsequent discounting and complete omission of Ms. Egbujor's opinion concerning concentration, persistence, or pace in the paragraph B analysis was error. Moreover, the ALJ altogether failed to address Dr. Le's MIQ observing that Mr. Johnson exhibited marked difficulties in maintaining concentration, persistence, or pace, which likewise was error. AR 319.
Finally, the ALJ's analysis regarding decompensation consisted of a single sentence: "Evidence in the record does
In a short paragraph following the paragraph B analysis, the ALJ summarily confirmed that he had "also considered whether the `paragraph C' criteria are satisfied" and concluded that the evidence in the record failed "to establish the presence of the `paragraph C' criteria." AR 22. Again, the ALJ asserted that Mr. Johnson did not experience any repeated episodes of decompensation. For the reasons discussed above, the ALJ's failure to account altogether for Dr. Le's finding of three or more episodes of decompensation of extended duration as noted in the MIQ in the paragraph C analysis was error.
The Court finds that the ALJ's findings at step three are not supported by substantial evidence, and his omission of any reference to Dr. Le's or Ms. Egbujor's opinions with respect to the degree of functional limitation at step three of the analysis constitutes legal error. See 20 C.F.R. § 416.920a(e)(4) ("[T]he written decision must incorporate the pertinent findings and conclusions based on the technique" and it "must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s).").
The Court therefore grants Mr. Johnson's motion for summary judgment and denies the Commissioner's cross-motion on this issue, and remands for reconsideration of step three consistent with this order.
Mr. Johnson argues that the ALJ erred by relying on Mr. Ferra's response to a hypothetical that did not account for all his limitations. This argument essentially restates Mr. Johnson's argument that the ALJ improperly discounted Mr. Johnson's testimony, Dr. Le's and Ms. Egbujor's opinions, and the neuropsychological report.
An ALJ posing a hypothetical question to a vocational expert "must include `all of the claimant's functional limitations, both physical and mental' supported by the record." Thomas, 278 F.3d at 956 (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)); see also Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009); Magallanes, 881 F.2d at 756. The ALJ did account for some of his mental impairments by including in his hypothetical the limitations of performing simple repetitive tasks and only occasional interactions with coworkers and the public. AR 76. However, as discussed above, the Court finds that the ALJ did not properly credit Mr. Johnson's testimony about his daily activities and limitations, or provide legally sufficient reasons for discounting Dr. Le's and Ms. Egbujor's statements in developing the RFC. An ALJ "need not include all claimed impairments in his hypotheticals, [but] he must make specific findings explaining his rationale for disbelieving any of the claimant's subjective complaints not included in the hypothetical." Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). In light of Mr. Ferra's response to the hypothetical that included Dr. Le's MIQ, the ALJ erred in concluding that Mr. Johnson could perform other jobs that existed in substantial numbers in the national economy. Lewis v. Apfel, 236 F.3d 503, 517-18 (9th Cir. 2001) (finding improper the ALJ's reliance on the VE's response to a hypothetical question that did not include all of claimant's impairments, even though another hypothetical question the ALJ asked had accounted for all of claimant's impairments).
The Court therefore grants Mr. Johnson's motion for summary judgment and denies the Commissioner's cross-motion on this issue, and remands for reconsideration of Mr. Ferra's testimony.
Mr. Johnson contends that the ALJ failed to adequately develop the record, arguing that because the ALJ discounted the neuropsychological report because it was authored by a student, he should have scheduled another psychological evaluation with someone whose credentials the ALJ would have accepted.
"The ALJ is responsible for studying the record and resolving any conflicts or ambiguities in it." Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017). In a social security case, an ALJ is obligated to fully and fairly develop the record even if the claimant is represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). There is a heightened duty where the claimant is suffering from a mental condition, because claimants with mental impairments may not be able to protect themselves from loss of benefits by producing evidence. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). An ALJ's duty to develop the record "is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). This duty may require the ALJ to obtain additional information by, inter alia, contacting treating physicians, scheduling consultative examinations, or calling a medical expert. 20 C.F.R. §§ 416.912(b), 416.913a.
Mr. Johnson admits that when the ALJ asked his counsel at the hearing about the possibility of a further psychiatric consultative exam, his counsel declined on the basis that he had already gone through "quite extensive psychiatric examination and assessment" and that the neuropsychological report was "pretty extensive." Dkt. No. 22 at 18; AR 64. The ALJ also held the record open for Mr. Johnson to submit additional evidence for 10 days after the hearing, but it does not appear that Mr. Johnson did so. AR 50, 80. Mr. Johnson does not argue that the evidence is ambiguous. The question is whether the record is inadequate to allow for a proper evaluation of the evidence. If, on remand and following proper consideration of the medical evidence of record, the ALJ concludes there is no evidence that he feels warrants more than "some" weight, he may wish to obtain additional information from a consultative examiner. See Mayes, 276 F.3d 459-60.
"When the ALJ denies benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits." Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (citing Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). That is because "an ALJ's failure to provide sufficiently specific reasons for rejecting the testimony of a claimant or other witness does not, without more, require the reviewing court to credit the testimony as true." Treichler, 775 F.3d at 1106.
The Court may order an immediate award of benefits only if three conditions are met. First, the Court asks "whether the `ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.'" Id. (quoting Garrison, 759 F.3d at 1020). Next, the Court "determine[s] `whether there are outstanding issues that must be resolved before a determination of disability can be made . . . and whether further administrative proceedings would be useful.'" Id. (quoting Treichler, 775 F.3d at 1101). "When these first two conditions are satisfied, [the Court] then credit[s] the discredited testimony as true for the purpose of determining whether, on the record taken as a whole, there is no doubt as to disability." Id. (citing Treichler, 775 F.3d at 1101). Even when all three conditions are satisfied and the evidence in question is credited as true, it is within the district court's discretion whether to make a direct award of benefits or to remand for further proceedings when the record as a whole creates serious doubt as to disability. Id. at 1045. As explained by the Ninth Circuit, "[a]n automatic award of benefits in a disability benefits case is a rare and prophylactic exception to the well-established ordinary remand rule." Id. at 1044.
In the present case, the first condition is met because the Court has found that the ALJ failed to provide legally sufficient reasons for giving only some weight to Dr. Le's opinion and for discounting Mr. Johnson's statements as to his symptoms and functional limitations. However, there are outstanding issues that must be resolved before a final determination can be made. The ALJ must reassess Mr. Johnson's statements and those of Dr. Le and provide legally adequate reasons for any portion of those opinions or statements that the ALJ discounts or rejects. The ALJ must also explain the weight, if any, he gives to Ms. Egbujor's opinion.
Based on the foregoing, Mr. Johnson's motion for summary judgment is granted in part and denied in part, the Commissioner's cross-motion for summary judgment is granted in part and denied in part, and this matter is remanded for further proceedings consistent with this order. The Clerk of the Court shall enter judgment accordingly and close this file.
