BROWN, District Judge.
Plaintiff Nicholas N. Nguyen seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Act and Supplemental Security Income (SSI) under Title XVI of the Act. On January
This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a thorough review of the record, the Court
Plaintiff filed his applications for DIB and SSI on July 10, 2007. Tr. 395.
The ALJ issued a decision on March 12, 2010, in which he found Plaintiff is not entitled to benefits. Tr. 130. The Appeals Council, however, issued an order on December 30, 2011, in which it reversed the ALJ's decision, remanded the case to the ALJ, and ordered the ALJ to conduct a "supplemental hearing" and to issue a new decision. Tr. 140-43.
Accordingly, on May 15, 2012, the ALJ held a second hearing. Tr. 40. At the hearing Plaintiff was represented by an attorney. Plaintiff; Donna Taxon, M.A., one of Plaintiff's mental-health treatment providers; and a VE testified at the hearing. Tr. 40.
The ALJ issued a decision on June 15, 2012, in which he again found Plaintiff is not entitled to benefits. Tr. 32. That decision became the final decision of the Commissioner on January 31, 2014, when the Appeals Council denied Plaintiff's request for review. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).
Plaintiff was born on April 27, 1965; was 47 years old on the date of the most recent hearing; and has a high-school diploma with two years of college. Tr. 395, 406. Plaintiff has prior relevant work experience as a cook and "cook's helper." Tr. 31.
Plaintiff alleges disability since June 9, 2007, due to anxiety, depression, and bipolar disorder. Tr. 395, 399.
Except as noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the medical records, this Court adopts the ALJ's summary of the medical evidence. See Tr. 23-30.
The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.2012). To meet this burden a claimant must demonstrate his inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir.2011) (quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).
The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir.2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).
Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act. Keyser v. Comm'r of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir.2011). See also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.2007); 20 C.F.R. § 416.920. Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). See also Keyser, 648 F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir.2006). See also 20 C.F.R. § 416.920(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a claimant's impairments meet or equal one of the listed impairments and are so severe that they preclude substantial gainful activity. The claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. § 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir.2011) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). The assessment of a claimant's RFC is at
At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work he has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.920(g)(1).
At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since June 9, 2007, his alleged onset date. Tr. 23.
At Step Two the ALJ found Plaintiff has the severe impairments of bipolar disorder, social anxiety, and alcohol dependence. Tr. 23-24.
At Step Three the ALJ found Plaintiff's impairments do not meet or equal the criteria for any impairment in the Listing of Impairments. Tr. 17-18. In his RFC assessment the ALJ found although Plaintiff has the functional capacity to perform a full range of work at all exertional levels, he is limited to performing unskilled work that involves "simple, unrushed tasks"; does not require interaction with the public; only involves superficial interaction with others, which the ALJ defined as "occasional, brief interaction for work-related purposes involving no close cooperation or coordination"; and does not involve any exposure to hazards. Tr. 25-30.
At Step Four the ALJ found Plaintiff is unable to perform any past relevant work. Tr. 31.
At Step Five the ALJ found Plaintiff could perform jobs that exist in significant numbers in the national economy such as an agricultural-produce sorter and can-filling-and-closing machine tender. Tr. 31-32. Accordingly, the ALJ found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 32.
Plaintiff contends the ALJ erred when he (1) failed to provide sufficient reasons for rejecting Plaintiff's testimony and (2) erroneously rejected the opinions of Gayle K. Ely, M.D.; Katie Ugolini, Ph.D.; Alie Thompson, P.M.H.N.P.; and mental-health provider (MHP) Donna Taxon. As a result of these errors, Plaintiff contends the Court should reverse the ALJ's decision and remand this matter to the Commissioner for the immediate calculation and award of benefits.
Defendant, in turn, contends the ALJ provided legally sufficient reasons for discrediting the medical testimony of Dr. Ely, Dr. Ugolini, PMHNP Thompson, and MHP Taxon. Defendant, however, concedes the ALJ erred in rejecting Plaintiff's testimony and agrees the ALJ's opinion must be reversed as to that issue. Defendant, therefore, requests the Court to remand
The parties' only substantive dispute is whether the ALJ properly weighed the medical-source testimony.
Medical sources are divided into two categories: "acceptable medical sources" and "other sources." 20 C.F.R. §§ 404.1513, 416.913. Acceptable medical sources include licensed physicians and psychologists. 20 C.F.R. §§ 404.1513(a), 416.913(a). Medical sources classified as "other sources" include, but are not limited to, nurse practitioners, therapists, licensed clinical social workers, and chiropractors. 20 C.F.R. §§ 404.1513(d), 416.913(d).
An ALJ may reject an examining or treating physician's opinion when it is inconsistent with the opinions of other treating or examining physicians if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Taylor v. Comm'r of Soc. Sec., 659 F.3d 1228, 1232 (9th Cir.2011). When the medical opinion of an examining or treating physician is uncontroverted, however, the ALJ must give "clear and convincing reasons" for rejecting it. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir.2010)(quoting Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995)). The opinion of a treating physician is "given greater weight than the opinions of other physicians." Kelly v. Astrue, 471 Fed. Appx. 674, 676 (9th Cir.2012) (quoting Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.1996)).
A nonexamining physician is one who neither examines nor treats the claimant. Lester, 81 F.3d at 830. See also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.2014). "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Taylor, 659 F.3d at 1233 (quoting Lester, 81 F.3d at 831). When a nonexamining physician's opinion contradicts an examining physician's opinion and the ALJ gives greater weight to the nonexamining physician's opinion, the ALJ must articulate her reasons for doing so with specific and legitimate reasons supported by substantial evidence. See, e.g., Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.2008).
With respect to "other sources," the Social Security Administration notes:
SSR 06-03p, at *3. Factors the ALJ should consider when determining the weight to give an opinion from those "important"
The ALJ, however, must explain the weight assigned to such sources to the extent that a claimant or subsequent reviewer may follow the ALJ's reasoning. SSR 06-03p, at *6. "The ALJ may discount testimony from ... `other sources' if the ALJ `gives reasons germane to each witness for doing so.'" Molina, 674 F.3d at 1111 (quoting Turner v. Comm'r Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.2010)).
As noted, Plaintiff contends the ALJ failed to provide sufficient reasons for rejecting the opinions of Dr. Ely, Dr. Ugolini, PMHNP Thompson, and MHP Taxon.
Dr. Ely was Plaintiff's treating psychiatrist between October 26, 2006, and September 20, 2007. Tr. 576. Dr. Ely diagnosed Plaintiff with bipolar disorder, social phobia, and alcohol dependence. Tr. 582. Dr. Ely reported Plaintiff suffered from depression and mania, which caused Plaintiff to experience variably reduced or excessive sleep, feelings of grandiosity, irritability, and depression. Tr. 576. Dr. Ely stated Plaintiff was capable of "adequate" activities of daily living and social functioning when he was stable and on medication, but Dr. Ely noted Plaintiff "has not been entirely responsive to medication." Tr. 577. Dr. Ely reported all of Plaintiff's functional capabilities are "at risk" when Plaintiff is not getting an adequate response to medication or when he is not participating in therapy. Tr. 578. Dr. Ely assigned Plaintiff a Global Assessment of Functioning (GAF) scale score of 40.
The ALJ partially discounted Dr. Ely's opinions in favor of the nonexamining opinions of Peter LeBray, Ph.D., and Bill Hennings, Ph.D. Tr. 599-601, 608. Accordingly, the ALJ was required to provide specific and legitimate reasons supported by substantial evidence in the record for discounting Dr. Ely's opinion. See Ryan, 528 F.3d at 1198.
The ALJ gave Dr. Ely's opinions only "moderate weight to the extent that they confirm the claimant's condition can be adequately controlled when he complies with his medical regimen." The ALJ found Dr. Ely's opinions lacked detail, her opinions were inconsistent with her findings that Plaintiff's mental status was within normal limits during clinical examinations, and her assessment of Plaintiff's
As an initial matter, the ALJ mischaracterized Dr. Ely's opinion. Although the ALJ suggested in his opinion that Dr. Ely found Plaintiff's compliance with medical treatment was the only factor that placed Plaintiff's functioning at risk, Dr. Ely merely stated Plaintiff's functioning was at risk if he "does not get adequate response to medication or participate in all recommended treatments." Tr. 578 (emphasis added). Even though the record reflects there were instances of alcohol relapses and medication cessations that caused acute exacerbations in Plaintiff's functioning, there are also numerous references to Plaintiff's mental-health instability caused by his inadequate response to treatment even when he was compliant.
The ALJ's other reasons for rejecting Dr. Ely's opinions were also insufficiently supported by evidence in the record. The record reflects Dr. Ely's opinion is neither inconsistent with her observations in clinical examinations nor lacking in detail. Moreover, the mere fact that Dr. Ely assigned a lower GAF score than another treatment provider is not sufficient to reject Dr. Ely's assessment, especially in light of Dr. Ely's treatment of Plaintiff over an extended period.
On this record, therefore, the Court concludes the ALJ erred when he discounted Dr. Ely's opinion because the ALJ did not provide legally sufficient reasons supported by substantial evidence in the record for doing so.
On November 16, 2009, Dr. Ugolini conducted a neuropsychological screening examination of Plaintiff. In addition to preparing a ten-page report, Dr. Ugolini filled out a form detailing Plaintiff's work-related functional limitations. Dr. Ugolini opined Plaintiff has mild limitations in his ability to understand, remember, and carry out simple instructions; moderate deficits in his ability to understand, remember, and carry out complex instructions as well as make judgments on simple work-related decisions; and a marked impairment in his ability to make judgments on complex work-related decisions. Tr. 698. Dr. Ugolini also opined Plaintiff has marked limitations in his ability to interact with the public, coworkers, and supervisors. Tr. 699. In addition, Dr. Ugolini reported Plaintiff has a moderate limitation in his ability to respond to usual work situations and to changes in a routine work setting. Tr. 699.
The ALJ partially rejected Dr. Ugolini's opinion as to Plaintiff's ability to interact with the public, co-workers, and supervisors on the ground that Plaintiff's activities of daily living suggest he can have such interactions on a superficial, occasional basis. The ALJ specifically referenced a report that Plaintiff assisted his son's soccer team and volunteered at his son's school as evidence of inconsistency between Plaintiff's daily activities and Dr. Ugolini's opinion as to Plaintiff's social-interaction limitations. See Tr. 987. Dr. Ugolini's opinion as to Plaintiff's social-interaction limitations was contradicted by the opinions of the nonexamining medical sources. The ALJ, therefore, was required to provide specific and legitimate reasons supported by substantial record evidence for discounting Dr. Ugolini's opinion. See Ryan, 528 F.3d at 1198.
The record does not indicate Plaintiff regularly volunteered with his son's school or soccer team. In any event, even if Plaintiff rarely or occasionally engaged in such activities, such activities do not undermine Dr. Ugolini's opinion that Plaintiff's ability to socially interact is limited considering the highly variable nature of the symptoms of bipolar disorder. Thus, inconsistency with Plaintiff's activities of
On this record, therefore, the Court concludes the ALJ erred when he discounted Dr. Ugolini's opinion because the ALJ did not provide legally sufficient reasons supported by substantial evidence in the record for doing so.
On April 6, 2009, PMHNP Thompson submitted an opinion listing Plaintiff's diagnoses and outlining Plaintiff's symptoms and limitations. PMHNP Thompson reported Plaintiff had been diagnosed with bipolar disorder, attention-deficit hyperactive disorder (ADHD), and alcohol abuse. Tr. 246. PMHNP Thompson explained Plaintiff's symptoms fluctuated depending on the episode, but they included irritability, fatigue, sleep disturbance, problems with concentration and memory, depression, and manic behaviors such as grandiosity, distractibility, and impulsiveness. Tr. 246. PMHNP Thompson reported Plaintiff's ability to maintain concentration, persistence, and pace in the workplace would not have "predictable outcomes," but Plaintiff could not be expected to do so throughout a normal work day in a normal work week. Tr. 247. PMHNP Thompson indicated Plaintiff's symptoms "persist independently of substance abuse issues, however they will exacerbate with substance use." Tr. 247.
With her narrative opinion PMHNP Thompson submitted a form opinion regarding Plaintiff's functional limitations. PMHNP Thompson primarily reported Plaintiff would have mild and moderate limitations with regard to understanding and memory, sustained concentration and persistence, social interaction, and adaptation. Tr. 683-85. Consistent with her narrative opinion, however, PMHNP Thompson reported Plaintiff would have marked limitations in his ability to "perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances," and to "complete a normal workday and workweek without interruptions from psychologically based symptoms." Tr. 684.
The ALJ was required to cite reasons germane to PMHNP Thompson as an "other source" in order to discredit her opinion. Molina, 674 F.3d at 1111. The ALJ rejected PMHNP Thompson's opinion because PMHNP Thompson "saw the claimant only three times," and the ALJ found her opinions were brief, conclusory, and inconsistent with her chart notes. Tr. 29.
Contrary to the ALJ's assertion, there are more than a dozen chart notes in the record from Plaintiff's appointments with PMHNP Thompson. Those chart notes generally indicate Plaintiff experiences the range of symptoms that PMHNP Thompson described in her narrative opinion and on which she based her assessment of Plaintiff's functional capacity. As to the ALJ's second reason for rejecting PMHNP Thompson's opinion, the ALJ's finding that PMHNP Thompson's opinions were brief and conclusory is without merit.
Accordingly, on this record the Court concludes the ALJ erred when he failed to provide legally sufficient reasons germane to PMHNP Thompson's opinion for rejecting her opinion.
MHP Taxon, one of Plaintiff's mental-heath treatment providers, submitted an opinion on November 25, 2011, and testified at the May 2012 hearing.
In her November 2011 opinion MHP Taxon reported Plaintiff's diagnoses are bipolar disorder and ADHD. MHP Taxon listed largely the same manic and depressive symptoms as PMHNP Thompson. Tr. 1099. MHP Taxon reported Plaintiff
At the hearing MHP Taxon testified she had appointments with Plaintiff at least every other week, and she listed the same diagnoses and symptoms as in her opinion. Tr. 45-48. MHP Taxon said Plaintiff would not be able to leave his house when depressed. She also testified Plaintiff, when functioning well, was able to spend "a little time" with his son and to pick his son up from school. Tr. 48-49. MHP Taxon testified she did not believe Plaintiff would be able to maintain consistent concentration, persistence, and pace in a normal work week because of his mood instability and focus problems. Tr. 49-50.
The ALJ was required to provide reasons germane to MHP Taxon to reject her testimony as an "other source." See Molina, 674 F.3d at 1111. The ALJ rejected MHP Taxon's testimony on the ground that it was inconsistent with the treatment record and Plaintiff's activities of daily living. Tr. 30.
After a thorough review of the record, however, the Court concludes MHP Taxon's testimony is not materially inconsistent with Plaintiff's activities of daily living and his treatment record. As noted, reports of occasional activities like gardening, practicing soccer, or caring for children are not inconsistent with limitations resulting from bipolar disorder.
Accordingly, on this record the Court concludes the ALJ erred when he failed to provide legally sufficient reasons germane to MHP Taxon's opinion for rejecting her opinion.
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Strauss v. Comm'r, 635 F.3d 1135, 1138 (9th Cir.2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court may not award benefits punitively and must conduct a "credit-as-true" analysis to determine whether a claimant is disabled under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of benefits directed when:
Id. The reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir.2010). When the reviewing court finds the elements of the "credit-as-true" rule have been satisfied,
As noted, the ALJ erred when he rejected Plaintiff's testimony and discounted the medical opinions of Dr. Ely, Dr. Ugolini, PMHNP Thompson, and MHP Taxon. The Court finds if the ALJ had credited the erroneously rejected evidence, he would be required to find Plaintiff disabled. After a thorough review, the Court concludes the record as a whole does not create "serious doubt that the claimant is, in fact, disabled." See Garrison, 759 F.3d at 1021.
Accordingly, on this record the Court concludes the decision of the Commissioner must be reversed, the Commissioner's Motion to Remand is denied to the extent that the Commissioner requests this matter to be remanded for further administrative proceedings, and this case is remanded for the immediate calculation and award of benefits.
For these reasons, the Court
IT IS SO ORDERED.
