MARY ALICE THEILER, Magistrate Judge.
Plaintiff Gary Lee Alexander proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends that this matter be REMANDED for a determination as to the onset date of disability.
Plaintiff was born on XXXX, 1959.
Plaintiff filed applications for SSI and DIB in August 2005, alleging disability since May 31, 2004. (AR 320-22, 397-99.) His applications were denied initially and on reconsideration, and he timely requested a hearing. ALJ M.J. Adams held a hearing on September 19, 2007, taking testimony from plaintiff and a vocational expert (VE). (AR 718-55.) On November 21, 2007, the ALJ rendered a decision finding plaintiff not disabled. (AR 341-54.)
By Order dated May 28, 2010, the Appeals Council vacated the ALJ's decision and remanded for a new hearing. (AR 335-37.) The Appeals Council identified deficiencies relating to the assessment of medical opinions, plaintiff's mental impairments, and plaintiff's credibility. (AR 335-36.) The ALJ was directed to: (1) re-evaluate plaintiff's residual functional capacity (RFC) and medical opinion evidence; (2) obtain additional evidence, including, if warranted and available, mental status and neurological examinations; (3) further evaluate plaintiff's mental impairments; (4) further evaluate plaintiff's subjective complaints; (5) obtain evidence from a psychiatric medical expert, if available, to clarify the nature and severity of plaintiff's impairments; and (6) if warranted, obtain supplemental evidence from a VE. (AR 336-37.)
On February 8, 2011, the ALJ held a second hearing, taking testimony from plaintiff and a VE. (AR 756-79.) On March 7, 2011, the ALJ rendered a partially favorable decision. (AR 21-34.) Plaintiff remained insured for DIB through June 30, 2008 (see AR 21) and, therefore, was required to establish disability on or prior to that "date last insured" (DLI). See 20 C.F.R. §§ 404.131, 404.321. The ALJ found plaintiff disabled as of May 24, 2009, the date he attained the age of fifty, through the date of the decision, but not disabled prior to that date. (AR 32-33.) Plaintiff was, therefore, entitled only to SSI beginning on May 24, 2009. (Id.)
Plaintiff again timely appealed. The Appeals Council denied plaintiff's request for review on June 21, 2012 (AR 8-10), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since May 31, 2004, the alleged onset date.
At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's hepatitis C, lumbar and cervical spine pain with degenerative joint disease and degenerative disc disease, and drug use severe. He found two physical impairments not severe, and found a number of mental impairments not severe before May 24, 2009, the established onset date of disability.
Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess RFC and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff had the RFC to perform a full range of sedentary work, with the following limitations: he can understand, remember, and carry out simple one-to-two step instructions required of jobs classified at a level of SVP 1 and 2 or unskilled work; he would have an average ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis, within customary tolerances of employers rules regarding sick leave and absence; he can make judgments on simple work-related decisions, can respond appropriately to supervision and co-workers, and deal with changes, all within a stable work environment; and he cannot deal with the public as in a sales position or where the general public is frequently encountered as an essential element of the work process, but incidental contact with the general public is not precluded. With that RFC, the ALJ found plaintiff unable to perform any past relevant work.
If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. The ALJ noted plaintiff's age category changed on May 24, 2009, when he attained the age of fifty, and became an individual closely approaching advanced age. Considering the Medical-Vocational Guidelines and the VE testimony, the ALJ concluded that — prior to May 24, 2009 — jobs existed in significant numbers in the national economy plaintiff could perform. However, beginning on May 24, 2009, there were not jobs existing in significant numbers in the national economy plaintiff could perform. The ALJ, therefore, concluded plaintiff was not under a disability prior to May 24, 2009, but became disabled on that date and continued to be disabled through the date of the decision. He was, therefore, entitled to SSI benefits beginning on May 24, 2009, but not to DIB benefits given the failure to demonstrate disability prior to his DLI of June 30, 2008.
This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues the ALJ failed to comply with the Appeals Council's remand order in numerous respects, and erred in assessing his mental impairments at steps two and three, and in assessing his credibility and RFC. He requests remand for an award of benefits or, in the alternative, for further administrative proceedings. The Commissioner argues the ALJ's decision is supported by substantial evidence and should be affirmed.
In considering plaintiff's mental impairments, the ALJ found only plaintiff's drug use severe. He stated:
(AR 25, internal citations to record omitted.)
At step three, the ALJ stated that while he did not find some of plaintiff's mental impairments severe, he nevertheless considered that plaintiff failed to meet the criteria for Listing 12.05 (Mental Retardation), Listing 12.08 (Personality Disorders), and Listing 12.09 (Substance Addiction Disorders). (AR 26.) He thereafter stated: "In activities of daily living, the claimant's restrictions were `mild' . . .; `moderate' in social functioning; `moderate' in concentration, persistence and pace; and the record does not support a conclusion that he had experienced any repeated episode of decompensation, each of extended duration." (Id.)
Plaintiff avers the ALJ failed to comply with the Appeals Council's remand order. For example, the Appeals Council found the ALJ's prior decision provided "inadequate rationale" to find plaintiff did not have a severe mental impairment, and noted the absence of any "reference to the evidence of record to support the mild ratings of functioning for the mental impairment evaluation." (AR 335.) The Appeals Council directed the ALJ to further evaluate plaintiff's mental impairments in accordance with the special technique described in 20 C.F.R. §§ 404.1520a and 416.920a, "documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in [20 C.F.R. §§ 404.1520a(c) and 416.920a(c)]. (AR 336.) The Appeals Council also directed the ALJ to obtain additional evidence, including examinations, "if warranted and available," and to "[o]btain evidence from a psychiatric medical expert, if available, to clarify the nature and severity of the claimant's impairments[.]" (Id.)
Plaintiff also generally maintains the ALJ failed to properly evaluate his mental impairments, erred in finding an absence of support for severe mental impairments prior to the DLI, and rendered a step two conclusion contrary to his own step three finding, wherein he found at least some of plaintiff's impairments resulted in moderate limitations in functioning. He denies these errors were harmless, noting, for example, the ALJ's failure to consider all of his severe mental impairments at step three, and that the RFC assessment did not include all of the relevant limitations associated with those impairments.
The Commissioner denies any error in the application of the special technique, and contends the absence of severity findings at step two is immaterial because the ALJ continued to analyze plaintiff's mental impairments at step three, and included numerous non-exertional limitations in the RFC. She also notes that the ALJ adopted and incorporated by reference the analysis from the November 2007 decision where consistent with the findings in the decision and left undisturbed by the Appeals Council's remand order. (AR 30.)
At step two, a claimant must make a threshold showing that her medically determinable impairments significantly limit her ability to perform basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 145 (1987) and 20 C.F.R. §§ 404.1520(c), 416.920(c). "Basic work activities" refers to "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). "An impairment or combination of impairments can be found `not severe' only if the evidence establishes a slight abnormality that has `no more than a minimal effect on an individual's ability to work.'" Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28). "[T]he step two inquiry is a de minimis screening device to dispose of groundless claims." Id. (citing Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the "combined effect" of an individual's impairments in considering severity. Id. A diagnosis alone is not sufficient to establish a severe impairment. Instead, a claimant must show that his medically determinable impairments are severe. §§ 404.1520(c), 416.920(c).
Upon identification of a colorable claim of mental impairment, an ALJ must apply a "special technique[.]" §§ 404.1520a(a), 416.920a(a); Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2002), and Keyser v. Comm'r, Soc. Sec. Admin., 648 F.3d 721, 725-26 (9th Cir. 2011). An ALJ's decision must include a specific finding as to the degree of mental limitation in each of four broad functional areas: activities of daily living; social functioning; concentration, persistence and pace; and episodes of decompensation. §§ 404.1520a(c), (e); 416.920a(c), (e).
At step three, the ALJ must consider whether the claimant's impairments meet or equal one of the impairments in the "Listing of Impairments" set forth in Appendix 1 to 20 C.F.R. Part 404, Subpart P. "In evaluating a claimant with more than one impairment, the Commissioner must consider `whether the combination of your impairments is medically equal to any listed impairment.'" Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1996). Plaintiff bears the burden of proving the existence of impairments meeting or equaling a listing. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
In this case, the ALJ either failed to consider or failed to adequately consider a number of medical opinions in finding an absence of evidence to support the existence of a severe mental impairment prior to the DLI. As a general principle, an ALJ's error may be deemed harmless where it is "`inconsequential to the ultimate nondisability determination.'" Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to "the record as a whole to determine whether the error alters the outcome of the case." Id. Errors at step two may be deemed harmless where the ALJ adequately accounts for impairments at subsequent steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (failure to list an impairment as severe at step two can be deemed harmless where limitations are considered at step four); Burch, 400 F.3d at 682-84 (finding failure to list obesity as severe at step two harmless where ALJ considered any functional limitations imposed by obesity at all subsequent steps of the analysis). Here, for the reasons described below, the ALJ's errors may not be deemed harmless.
In an April 2007 intake assessment, Dr. Kevin Zvilna diagnosed plaintiff with bipolar I, depressed, moderate, rule-out anxiety disorder, and antisocial personality disorder, rule-out paranoid personality disorder. (AR 193-200.) Dr. Zvilna assessed a Global Assessment of Functioning (GAF) of 40, indicating "some impairment in reality testing or communication" or "major impairment in several areas, such as work or school family relations, judgment, thinking or mood[.]" Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) (DSM-IV-TR). He described plaintiff as appearing "agitated and depressed" and attached a Mental Status Examination (MSE), noting, inter alia, plaintiff's poor hygiene, aggressive and paranoid thought process, depressed mood/affect, limited ability to abstract in cognitive functioning, agitated motor activity, impaired insight/judgment (denial/resistance, blames others, aware of problem, poor impulse control), guarded behavior, and pressured speech with preservations. (AR 193, 198.)
The existence of Dr. Zvilna's April 2007 diagnosis of an antisocial personality disorder directly undermines the ALJ's conclusion that the record did not reflect plaintiff had this diagnosis before the established onset date. Nor did the ALJ consider any mood or affective disorder (such as bipolar I) under Listing 12.04 at step three, or in any respect address Dr. Zvilna's report in the 2011 decision. While the ALJ did address Dr. Zvilna's report in the 2007 decision, the consideration of this evidence was inadequate for the reasons discussed below. The ALJ's failure to consider the evidence from Dr. Zvilna cannot be deemed harmless.
The ALJ also failed to consider evidence from Dr. Ellen Walker Lind. In a January 2008 evaluation, Dr. Lind diagnosed plaintiff with intermittent explosive disorder, panic disorder without agoraphobia, and polysubstance dependence in sustained full remission, assessed numerous marked and severe limitations, and found plaintiff chronically mentally ill. (AR 421-26.) In an attached MSE, Dr. Lind noted, inter alia, poor grooming, agitation, and poor remote and recent memory. (AR 425-26.) Dr. Lind again evaluated plaintiff in November 2008, diagnosing plaintiff with intermittent explosive disorder, assessing numerous marked and severe limitations in functioning, and finding plaintiff chronically mentally ill. (AR 415-20.) The attached MSE noted, inter alia, evidence of agitation, irritability, and impaired recent memory. (AR 419-20.) This latter evaluation remains relevant despite the fact that it is dated some five months after the DLI. Lester, 81 F.3d at 832 ("`[M]edical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the preexpiration condition.'") (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988).) In both 2008 evaluations, Dr. Lind noted marked and severe limitations, including in plaintiff's ability to learn new tasks, exercise judgment and make decisions, perform routine tasks, relate appropriately to co-workers and supervisors, tolerate the pressures and expectations of a normal work setting, to care for himself, including personal hygiene and appearance, and to control physical or motor movements and maintain appropriate behavior. (AR 417, 423.)
Again, the failure to consider this evidence cannot be deemed harmless. The ALJ did not consider any anxiety disorder (such as panic disorder) under Listing 12.06 at step three, and did not ever assess the two 2008 evaluations completed by Dr. Lind. He, instead, only considered an evaluation completed by Dr. Lind in July 2010. (AR 25, 30, 627-32.) However, as discussed below, the consideration of the 2010 evaluation alone was not sufficient.
The ALJ did address opinion evidence from Dr. Christopher Noell. In August 2007, Dr. Noell described plaintiff as irritable and angry on examination, diagnosed chronic PTSD, mood disorder, not otherwise specified (NOS), and antisocial personality traits, and opined that plaintiff's "anger and irritability present a significant barrier to treatment as well as diagnosis[,]" and that it was "most likely that [he] is reactive to stresses and perceived insults, developing depressive reaction and anger discontrol." (AR 305-06.) Dr. Noell assessed a GAF of 45, indicating "serious symptoms" or "any serious impairment in social, occupational, or school functioning." DSM-IV-TR 34.
The ALJ acknowledged the evidence from Dr. Noell at step two, but noted Dr. Noell recorded plaintiff's last use of marijuana as "`a month ago[,]'" as well as plaintiff's report "that he had used marijuana since age 13." (AR 25.) As discussed below, the ALJ did not adequately address plaintiff's substance use as a general matter. Nor did the ALJ appropriately disregard the evidence from Dr. Noell at step two based solely on the inclusion of the observations as to plaintiff's use of marijuana.
The ALJ also did not assess any mood or anxiety disorders, including PTSD, at step three. Moreover, Dr. Noell's assessment of antisocial personality traits, when considered in conjunction with the antisocial personality disorder diagnosis of Dr. Zvilna, further undermines the ALJ's assertion as to an absence of a personality disorder diagnosis prior to the established onset date. The ALJ additionally, as discussed below, failed to adequately support the conclusion in his 2007 decision for rejecting the GAF score assigned by Dr. Noell. Accordingly, the ALJ's failure to adequately consider the evidence from Dr. Noell at step two cannot be deemed harmless.
The record also contains other evidence predating plaintiff's DLI and addressed only later in the ALJ's decision. In January 2007, Dr. Douglas Uhl diagnosed mental impairments, including pain disorder, major depression, and cocaine dependence in remission, found moderate, marked, and severe limitations,
The ALJ provided several reasons for according little weight to Dr. Uhl's opinions. (AR 29.) However, even if that assessment is considered sufficient, the evidence from Dr. Uhl undermines the ALJ's step two conclusion as to an absence of evidence supporting the existence of severe mental impairments prior to the DLI. In particular, it is noted that the ALJ did not assess either a somatoform disorder (such as pain disorder) or a mood disorder (such as major depression) at step three, both of which were assessed by Dr. Uhl.
Dr. David Hansen also completed written interrogatories in August, 2007. (AR 299-301.) Dr. Hansen opined that plaintiff met listing level severity for an affective disorder, Listing 12.04, and assessed moderate limitations in activities of daily living and maintaining social functioning, frequent deficiencies in concentration, persistence, or pace, and repeated episodes of decompensation occurring "often[.]" (AR 299-301.) He stated the basis for his opinion as follows: "Depression Major Recurrent with anger management problems. Failed multiple SSRI." (AR 301.) Dr. Hansen also opined that plaintiff's drug and alcohol use was not a factor material to disability. (AR 304.)
Again, the ALJ did not assess any affective or mood disorder at step three. He did assess limitations in the special technique consistent, in part, with the limitations assessed by Dr. Hansen and otherwise considered Dr. Hansen's opinions at step four. (AR 28.) Yet, as with Dr. Uhl, the evidence from Dr. Hansen undermines the ALJ's step two conclusion as to an absence of evidence supporting the existence of severe mental impairments prior to the DLI.
Finally, the record contained evidence from Mike Gregory, ARNP, and Phillip Tageant, MSW, relevant to the consideration of plaintiff's mental impairments prior to the DLI. The records include Gregory's treatment notes (AR 209-12, 515-588, 593-98), and the 2009 opinion that plaintiff's PTSD severely limited his functioning (AR 614). Tageant, in August 2007 written interrogatories, opined that plaintiff met listing level severity for a personality disorder, Listing 12.08, and that drug and alcohol use was not a factor material to disability. (AR 316-19.) Again, the existence of yet more evidence supporting the existence of mental impairments prior to the DLI supports a finding of error in the ALJ's step two determination.
As described above, the ALJ erred at step two in failing to consider evidence clearly relevant to that determination, and that error implicated both the application of the special technique and the consideration of plaintiff's claim at step three. The mere fact that the ALJ identified and analyzed other severe mental impairments at steps two and three does not render the omission of separate severe mental impairments harmless. In fact, the Ninth Circuit has found otherwise. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) ("Because the ALJ excluded panic disorder from Hill's list of impairments and instead characterized her diagnosis as anxiety alone, the [RFC] determination was incomplete, flawed, and not supported by substantial evidence in the record.")
Nor can it be said that the ALJ rectified his errors by considering all relevant limitations at step four. Plaintiff notes, as one example, that the ALJ failed to take into consideration assessed limitations in his ability to interact with co-workers and supervisors, and, in fact, found no limitations in this regard. (AR 26.)
The Commissioner asserts "the ALJ reasonably concluded Plaintiff's anger was under control with medication based on his testimony at the February 2011 administrative hearing." (Dkt. 22 at 9 (citing AR 27).) However, the ALJ did not reach any such conclusion. The Court reviews 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." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225 (9th Cir. 2009) (citing, inter alia, Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) ("The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases. . .")). Nor is the Commissioner's reading of the ALJ's decision reasonable. The ALJ did note plaintiff's testimony that "medical marijuana helped suppress his anger[.]" (AR 27.) However, as the ALJ observed, plaintiff went on to testify that "he still had `problems interacting with people,' had `no tolerance for people,' and felt threatened by them." (Id.) The ALJ further described plaintiff's testimony "that he had no friends and that he did not come out of the house except for grocery shopping[,]" and his testimony in the 2007 hearing "that he had lost prior jobs because of `fist fights with co-workers' and not getting along with his employers." (Id.)
The impact of the errors beginning at step two also implicate step five. For example, at hearing, plaintiff's counsel asked the VE whether his response to the hypothetical proffered by the ALJ would change if a limitation of an inability to respond appropriately to co-workers and supervisors were added, such as where an individual had "anger problems or personality issues that would cause frequent disputes or difficulties with co-workers and supervisors." (AR 777.) The VE responded that, if a constant factor in the work place over time, such a factor "would probably result in termination." (Id.)
In sum, the ALJ erred in his consideration of plaintiff's mental impairments at steps two and three, and those errors may not be deemed harmless. The ALJ's consideration of plaintiff's mental impairments lacks the support of substantial evidence and implicates the remainder of the ALJ's decision.
In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester, 81 F.3d at 830. An ALJ must provide clear and convincing reasons for rejecting uncontradicted opinion evidence from these "acceptable medical sources," and specific and legitimate reasons for rejecting contradicted opinion evidence. Id. The ALJ must also address the opinions of "other sources," such as nurse practitioners and therapists, and may discount such evidence by providing reasons germane to each source. Molina, 674 F.3d at 1111 (citing Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) and Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). See also SSR 06-03p.
Plaintiff argues the ALJ failed to give legally sufficient and supported rationale to disregard opinion evidence of numerous examining and treating providers, including Drs. Zvilna, Lind, Noell, Uhl, and Hansen, and the evidence proffered by other source providers Gregory and Tangent. The Commissioner contends the ALJ's assessment of this evidence was based on substantial evidence and free of harmful error.
This case is notable in that all of the opinion evidence can be described as supportive of plaintiff's claim. In this respect, it is noted that Dr. Cynthia Collingwood, a Stage agency consultant, noted plaintiff had been diagnosed with an affective disorder, "adjustment [disorder]; anger outbursts[,]" but did not assess functional limitations upon finding "insufficient" medical evidence of record. (AR 481-93.) The ALJ also rejected evidence supportive of plaintiff's claim from examining physicians Dr. Susan Hakeman (AR 633-38), Dr. Sylvia Thorpe (AR 605-11), and Dr. Trula Thompson (AR 287). (AR 25, 28-30.) Therefore, the ALJ was required to provide clear and convincing reasons for the rejection of the physicians' opinions. However, as described below, the ALJ failed to provide such reasons in relation to several physicians.
In addressing the evidence from Dr. Zvilna in the 2007 decision, the ALJ noted only that the assessed GAF of 40 "appears to be inconsistent with consideration of the objective evidence versus subjective allegations as well as the record as a whole." (AR 350.) The ALJ did not cite to any inconsistent objective evidence, and failed to acknowledge Dr. Zvilna's objective observations. (See AR 193, 198.) Also, while the Commissioner correctly observes that the ALJ cited to Dr. Zvilna's report in relying on plaintiff's "long" and "significant" criminal history in the credibility assessment (AR 28), there is no basis for inferring that the ALJ relied on this reasoning to discount Dr. Zvilna's opinions. The ALJ cited to that evidence in the 2011 decision, wherein he did not discuss the evidence from Dr. Zvilna. Nor is it apparent that the evidence of plaintiff's criminal history would serve to reject Dr. Zvilna's opinions. Indeed, Dr. Zvilna rendered his opinions with full knowledge of that history. The ALJ, therefore, failed to provide clear and convincing reasons for the rejection of the opinions of Dr. Zvilna.
Nor did the ALJ provide clear and convincing reasons for rejecting the opinion evidence from Dr. Lind. The ALJ did accurately note inconsistencies between Dr. Lind's July 2010 evaluation and evidence in the record relating to plaintiff's work history. (AR 30, 627-32 (ALJ found Dr. Lind's observation that plaintiff had not worked "for almost 10 years now" and his diagnosis of major depression, recurrent, mild with an onset date in 1980 inconsistent with evidence of plaintiff's gainful work history).) However, Dr. Lind's two earlier evaluations did not suffer from the defects identified by the ALJ. (See AR 415-26 (stating, at most, that plaintiff "hasn't worked for years" and noting plaintiff worked as trucker for eight years)). While a physician's most recent opinions may be "highly probative[,]" Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001), the inconsistencies highlighted by the ALJ do not apply to or otherwise suffice to reject the earlier evaluations from Dr. Lind.
Likewise, the ALJ failed to provide clear and convincing reasons for rejecting the opinions of Dr. Noell. In the 2011 decision, the ALJ no more than noted the information in Dr. Noell's report relating to marijuana. (AR 25.) In the 2007 decision, the ALJ stated only that the assessed GAF appeared "inconsistent with the objective narrative findings versus subjective allegations as well as the objective evidence of record as a whole." (AR 351.) However, as with Dr. Zvilna, the ALJ failed to cite any contrary objective evidence or to take into account the objective observations as to plaintiff's anger and irritability on examination. (AR 305-06.)
The ALJ addressed the opinions of Drs. Uhl and Hansen in greater detail. He found treating physician Dr. Hansen appeared to have underestimated the effects of plaintiff's drug use, that plaintiff's legal history eroded his credibility so as to cast doubt on his presentation to this physician, and that Dr. Hansen failed to provide any support for the conclusion that plaintiff had often experienced repeated episodes of decompensation. (AR 28.) He further noted that the opinion as to whether an individual is "disabled" is an issue reserved to the Commissioner. (AR 28-29.) The ALJ stated Dr. Uhl's interrogatory was a "check-the-box" form, and described specific inconsistencies between the opinions on that form and Dr. Uhl's prior, more detailed report, upon which he purported to rely in completing the interrogatories. (AR 29.) The ALJ also noted that, while finding drug use not a factor material to disability, Dr. Uhl failed to address plaintiff's "longstanding marijuana use[.]" (Id.)
The ALJ also addressed the evidence from Gregory and Tageant. He stated: "Mr. Gregory also cited `marked' PTSD as a basis for severely limited functioning, but at the same time, he noted `polysubstance abuse' as well as use of medical marijuana and Methadone." (AR 28, internal citation to record omitted.) After describing Tageant's opinion that plaintiff's condition met a listing, the ALJ noted Tageant is not an acceptable medical source. (AR 30.) He also stated: "In addition, Dr. Hansen, Dr. Uhl, and Dr. Thompson had expressed similar opinions as Mr. Tageant, but their opinions are accorded little weight for the multiple reasons discussed above." (Id.) The ALJ, therefore, also accorded Tageant's opinions little weight. (Id.)
It is not necessary to analyze the reasoning provided in relation to Dr. Uhl, Dr. Hansen, Gregory, and Tageant in detail. The ALJ's errors beginning at step two call into question the remainder of his analysis. Also, in addition to the fact that the ALJ failed to provide clear and convincing reasons for rejecting the opinion evidence from three other physicians, it is worth reiterating that the record contains no contradictory medical evidence as to plaintiff's mental impairments. Moreover, the ALJ's reliance on the issue of plaintiff's substance use in rejecting the medical opinion evidence is problematic for the reasons discussed below. For all of these reasons, plaintiff demonstrates reversible error in the ALJ's consideration of the medical evidence.
Absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). See also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834. "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The ALJ concluded that plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not credible prior to May 24, 2009 to the extent inconsistent with the assessed RFC. (AR 27.) In addition to the discussion of the medical evidence, the ALJ found:
(AR 28, internal citations to record omitted.) While the ALJ provided other reasons for the credibility determination in the 2007 decision, the Appeals Council vacated that portion of the decision. (See AR 335-36.)
Plaintiff argues the ALJ's assessment of his credibility related only to his physical issues, which are not relevant herein, and improperly insinuated he is currently abusing drugs. The Commissioner argues that an ALJ may rely on a claimant's felony convictions for crimes of moral turpitude as a part of the credibility determination. Albidrez v. Astrue, 504 F.Supp.2d 814, 822 (C.D. Cal. 2007) (finding it appropriate to consider crimes involving moral turpitude, including a conviction for showing a false ID to a peace officer, and the violent crime of attempted robbery). See also generally Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (ALJ may rely on "relevant character evidence.") The Commissioner also points to the ALJ's reliance on plaintiff's substance use in addressing the opinions of various medical providers, and states that plaintiff's representations that he had been clean and sober of illicit drugs were "incredible" given his admitted use of drugs since childhood. (Dkt. 22 at 18 (citing AR 28).)
Given the extent and nature of plaintiff's criminal history, the ALJ's consideration of this factor can be considered reasonable. However, the ALJ otherwise failed to sufficiently address plaintiff's credibility.
As plaintiff argues, the ALJ implies his use of non-prescribed illegal substances during the relevant time period — asserting his "concurrent polysubstance use during the course of treatment." (AR 28 (citing AR 151, 305, 524, 526-27, 530, 532, 534, 581, 587, 593, 597, 610, 617, 622, 635); see also AR 25 ("Even though the claimant is likely in remission status for street drugs, he continues to use medical marijuana.")) However, a review of the record reveals only a remote history of cocaine dependence, in sustained remission (see, e.g., AR 148, 286), and largely reflects the prescribed use of Methadone and marijuana, with evidence of a marijuana prescription at least as early as October 7, 2008 (see, e.g., AR 428, 587)). At most, therefore, there may have been a period when plaintiff used marijuana without a prescription. (See AR 194, 305 (reports dated in 2007 reflecting plaintiff's ongoing marijuana use, without mention of a prescription)).
The 2007 decision also noted consideration of alcohol use during the relevant time period. For instance, the ALJ cited to a May 2007 treatment note stating: "At his last visit the patient reported continued alcohol use and today reports ongoing use."; and "The patient is again advised to avoid alcohol to prevent further damage from hepatitis C." (AR 34, 290.) However, the ALJ also acknowledged plaintiff's testimony that he stopped drinking in 2002 and had five years of sobriety, with the exception of a beer on his birthday, which he maintained explained the May 2007 treatment note. (AR 34, 727-29.) (But see AR 194-95 (Dr. Zvilna's April 2007 assessment reflects plaintiff's report that he "binges on beer[,]" and "has drinking binges throughout the month."))
The ALJ does not cite to any records in support of his assertion that drug use, whether prescribed or not, was expected to worsen plaintiff's psychiatric limitations. The Commissioner, arguing in support of this finding, points only to Dr. Thorpe's "cautionary note about interpreting the significance of Plaintiff's test scores given his current use of methadone and marijuana." (Dkt. 22 at 18 (citing AR 610).) Yet, even if this is reasonably considered as evidence supporting the ALJ's finding, the record contains numerous opinions of physicians and care providers who opined that plaintiff's substance use was not material to his disability. As stated above, the ALJ failed to sufficiently address that opinion evidence. The ALJ should have further delved into the issue of plaintiff's substance use in general and, in particular, presented a clearer picture as to the status of plaintiff's substance use during the relevant time period.
Finally, the ALJ's consideration of plaintiff's credibility is as a general matter called into question by the other errors in the decision. For this reason, and for the reasons stated above, plaintiff demonstrates reversible error in the ALJ's consideration of his credibility.
Plaintiff argues the deficiency of the RFC given the errors in the ALJ's consideration of his mental impairments. The Court agrees. The errors outlined above appear to implicate the sufficiency of the ALJ's RFC assessment as it relates to mental impairments.
Plaintiff also argues that the RFC assessment fails to account for physical limitations associated with his knee and upper extremities, pointing to the findings contained in a July 2010 report by Dr. Peter Pfeiffer. (AR 599-604.) The ALJ addressed Dr. Pfeiffer's report only once, in noting medication kept plaintiff's hypertension under fair control. (AR 24.) In any event, Dr. Pfeiffer merely noted "decreased sensation in the skin over the left knee[]" and did not clearly opine as to limitations in, for example, reaching, pushing, or pulling. (See AR 601-03.) Moreover, the evidence from Dr. Pfeiffer falls within the time period in which the ALJ found plaintiff disabled. Further, the ALJ did address similar, July 2010 evidence from Gregory, noting plaintiff was "less than 3 months status-post cervical diskectomy and fusion" at that time, and concluding plaintiff's "actual physical limitations, after a period of recuperation from the surgery, were expected to be higher." (AR 28.) Therefore, any error in the failure to further address Dr. Pfeiffer's report can be deemed harmless.
The Court has discretion to remand for further proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).
Id. at 1076-77.
Plaintiff requests remand for an award of benefits, with a finding that he was disabled as of his alleged onset date or no later than his DLI. Alternatively, plaintiff requests remand for consideration of whether he was disabled as of his alleged onset date or by his DLI.
The numerous errors in the ALJ's decision, the consistent opinion evidence from the physicians and other care providers, and the apparent existence of substantial evidence support for a finding of severe and substantially limiting mental impairments prior to the DLI argues in favor of a remand for an award of benefits. Also relevant to this consideration is the fact that plaintiff applied for benefits almost eight years ago, in August 2005. See Varney v. Secretary of Health and Human Servs., 859 F.2d 1396, 1398-99 (9th Cir. 1988) (noting claimant had already waited over five years since applying for benefits; "Delaying the payment of benefits by requiring multiple administrative proceedings that are duplicative and unnecessary only serves to cause the applicant further damage — financial, medical, and emotional.") See also Smolen, 80 F.3d at 1292 (noting seven-year delay and additional delay posed by further proceedings); Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985) (noting administrative proceedings would only prolong already lengthy process and delay benefits).
However, the onset date of disability is an outstanding issue that must be resolved before a finding of disability can be made. DIB benefits may be paid for up to twelve months prior to the month in which an application is filed. SSR 83-20. Therefore, plaintiff is potentially entitled to DIB beginning in 2004. While there is considerable evidence supporting an onset date prior to plaintiff's DLI of June 30, 2008, it is not clear such evidence exists and/or supports an award of benefits prior to 2007. (See, e.g., AR 193-200 (Dr. Zvilna's April 2007 intake assessment).)
The Ninth Circuit has held that if the "medical evidence is not definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires the administrative law judge to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination." DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991); see also Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998) ("where a record is ambiguous as to the onset date of disability, the ALJ must call a medical expert to assist in determining the onset date"); Morgan v. Sullivan, 945 F.2d 1079, 1083 (9th Cir. 1991) (inferring a disability onset date "is not possible without the assistance of a medical expert"). This matter should be remanded based on the errors addressed above, with indication that plaintiff demonstrates substantial evidence support for the finding of onset of disability prior to his DLI, and with direction for the ALJ to determine the onset date of disability. If the onset date of disability is not definite, the ALJ must retain the services of a medical expert. See id.
For the reasons set forth above, this matter should be REMANDED for determination of the onset date of disability.
