CINDY K. JORGENSON, District Judge.
On February 14, 2014, Magistrate Judge Charles R. Pyle issued a Report and Recommendation ("RR") (Doc. 35) in which he recommended that this matter be remanded for an immediate award of benefits. Carolyn W. Colvin, Acting Commissioner of the Social Security Administration ("the Commissioner") has filed an Objection (Doc. 37) and Plaintiff Martin Bayze ("Bayze") has filed a response (Doc. 38).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).
The Commissioner argues the Administrative Law Judge's ("ALJ") weighing of the medical opinion testimony and credibility finding are supported by substantial evidence. The Commissioner requests this Court to affirm the ALJ's decision. Alternatively, the Commissioner requests the Court, if it find that substantial evidence does not support the Commissioner's decision, to remand for further proceedings.
The findings of the Commissioner are meant to be conclusive, 42 U.S.C. §§ 405(g), 1383(c)(3), and a decision to overturn a denial of benefits is appropriate only if the denial "is not supported by substantial evidence or [if the denial] is based on legal error." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992), citations omitted; Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The standard is less than a "preponderance of the evidence" standard. Matney, 981 F.2d at 1019. Further, a denial of benefits is to be set aside if the Commissioner has failed to apply the proper legal standards in weighing the evidence even though the findings may be supported by substantial evidence. Frost v. Barnhart, 314 F.3d 359, 367 (9th Cir. 2002). Indeed, this Court must consider both evidence that supports, and evidence that detracts from, the conclusion of the ALJ. Frost, 314 F.3d at 366-67.
The Commissioner disagrees with the magistrate judge's finding that the ALJ's stated reasons for rejecting the opinions of treating physicians Saul Perea, M.D., and Richard V. Barnes, M.D., were insufficient.
Bayze's contact with treating physician Dr. Perea appears to have began in May 2006 when Bayze was taken to the hospital after his mother called 911 because Bayze threatened to cut his throat with a knife. Bayze reported multiple suicide attempts and auditory hallucinations of voices telling him to kill himself. Later in May 2006 and in June 2006, Bayze reported Risperdal and anti-depression medication made the voices tolerable. Subsequently, Bayze reported auditory hallucinations of multiple voices telling him to kill himself, increased irritability, problems sleeping, suicidal ideation, use of crystal meth and prior use of cocaine. Additionally, Bayze reported he was exposed to heavy solvents and paint fumes in his work as a painter for the past 20 years.
In August 2006, Perea observed that Bayze was clean, sober, and his auditory hallucinations were much improved. A Mental Impairment Assessment indicated a history of depression with psychosis and at least one suicide attempt. It was unclear if Bayze's symptoms were related to his chemical dependency. Dr. Perea noted Bayze's auditory hallucinations were decreasing in frequency and intensity. Additionally, Bayze's speech and memory were within normal limits and Bayze was not significantly limited in most areas of consideration. Dr. Perea's diagnosis was psychotic disorder NOS.
In November 2006, another Mental Impairment Assessment was completed. As summarized by the magistrate judge:
RR, p. 7.
Dr. Perea gave two opinions regarding Bayze's work-related abilities. In August 2006, Dr. Perea opined that Bayze did not have any restrictions in his ability to perform daily activities, checked boxes on a form indicating that Bayze was not significantly limited in 17 areas of work-related functioning, and opined that Bayze's abilities "may be affected" in the other three areas of work-related functioning (Administrative Record ("AR") 534-37). In November 2006, Dr. Perea opined that Bayze was not significantly limited in only six areas of work-related functioning (as opposed to 17), was unable to process detailed instructions altogether, and had an "abnormal" ability to perform in the other 13 areas of work-related functioning, but that he "should be able to handle" activities of daily living (AR 835-38).
In August 2007, treating physician Dr. Barnes determined Bayze was not significantly limited (or that he was uncertain as to Bayze's abilities in many areas, and that Baze was mildly limited in the abilities to perform activities within a schedule, maintain regular attendance, be punctual, set realistic goals, and to make plans independently of others. Dr. Barnes' uncertainty was based on having seen Bayze only two times at that point, Bayze's denial of psychotic symptoms, and Dr. Barnes' lack of knowledge of whether Bayze could function in a work environment. As summarized by the magistrate judge:
RR, pp. 8-9. The ALJ rejected this second assessment because it was undated, objective evidence did not support the findings, it was not consistent with Dr. Barnes' August assessment, i.e., wherein he was unable to determine Bayze's ability to function in a work environment, Bayze had not exhibited psychotic symptoms, and Bayze had previously been non-compliant.
The ALJ gave little weight to Dr. Perea's opinions. The ALJ determined Dr. Perea had failed to adequately state the extent to which Bayze was limited and was based on a short treatment period. After approximately five months of treatment, Dr. Perea opined Bayze was abnormal in multiple areas. Although he did not define the extent of limitations, Dr. Perea found he was limited as indicated. While consideration of the length of treatment relationship is appropriate, Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1038-39 (9th Cir. 2003) (duration of treatment relationship and frequency and nature of contact relevant in weighing opinion). the ALJ did not state any reason why the opinions could not be reached after five months of treatment. In evaluating evidence to determine whether a claimant is disabled, the opinions of treating physicians are entitled to great weight. Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1989). The specific reasons given by the ALJ do not legitimately support attributing little weight to Dr. Perea's opinion. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) ("A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record.").
The ALJ rejected Dr. Barnes' second assessment because it was undated, objective evidence did not support the findings, it was not consistent with Dr. Barnes' August assessment, i.e., wherein he was unable to determine Bayze's ability to function in a work environment, Bayze had not exhibited psychotic symptoms, and Bayze had previously been non-compliant. The ALJ also noted Dr. Barnes' opinions as to moderated and marked limitations in most work-related functions were unrelated. As to the ALJ's rejection based on the assessment being undated, because the document included a received stamp date of October 24, 2007, the Court finds this reason does not legitimately support attributing little weight to Dr. Barnes' opinions. Although the Commissioner argues the ALJ appropriately gave Dr. Barnes' earlier opinion greater weight because it was better supported, 20 C.F.R. § 4041527(c)(3), this fails to consider that Dr. Barnes' later opinion considered further treatment of Bayze as established by objective evidence in the record (i.e., October 2007 COPE notes showed that Bayze was complaining of depression, out-of-control anger issues, and hearing voices and he appeared compliant on medication since the August 2007 assessment). In other words, contrary to the ALJ's conclusion, objective evidence in the record supported the second assessment even though it differed from Dr. Barnes' August 2007 assessment. The ALJ rejected the treating physician's opinion without specific and legitimate reasons supported by substantial evidence in the record Reddick.
The Commissioner objects to the magistrate judge's finding that the ALJ's stated reasons for rejecting portions of examining psychologist Dr. Rohen's opinion, and nurse practitioner Ms. Joyce's opinion were insufficient.
In November 2007, Bayze reported to Noell Rohen, Ph.D., a consulting examiner, that he heard whispers every day, felt violent, and had lost his last job after three physical fights with other crew bosses, had been in a fight two weeks before his appointment with Dr. Rohen when he attacked a man he thought was attempting to harm him, had worked as a painter on and off for twenty years, and was homeless although he sometimes stayed with friends. Testing scores indicated Bayze's memory function was quite poor and suggested difficulties in processing speed, attention, and cognitive flexibility. During testing, Bayze was overwhelmed, cried, and some tasks seemed too difficult for him and a task was discontinued when it became evident that Bayze's emotional response precluded his attending to those items. Dr. Rohen did not suspect malingering and his diagnoses included Psychotic Disorder NOS, Mood Disorder NOS, Polysubstance Dependence in Sustained Full Remission (no use reported since 5/06), rule out Cognitive Disorder Nos, and rule out Borderline Intellectual Functioning. Dr. Rohen opined that it was possible Bayze could stabilize, but if he did, the stabilization would eventually be followed by decompensation, as had been his pattern.
Dr. Rohen opined that Bayze had mild limitations in his understanding and carrying out of simple instructions, his making simple work-related decisions, and his interacting appropriately with the public. He further opined Bayze had moderate limitations in his interacting appropriately with supervisors, his responding appropriately to usual work situations and his changes in a routine work setting. Dr. Rohen also opined Bayze had marked limitations in his understanding and carrying out complex instructions, his making complex work-related decisions, and his interacting appropriately with co-workers. Dr. Rohen also opined Bayze's ability to be consistent with appointments and provide for basic needs were impaired by psychiatric factors.
The ALJ gave some weight to Dr. Rohen's opinion, found some observations to be consistent with the overall evidence, but found evidence supported limiting Bayze's interactions with the public based on Bayze's anger difficulties and his history of conflict with others. The ALJ also concluded that Bayze can relate and interact with supervisors. The Court agrees with the magistrate judge that the record does not support the conclusion that Bayze's anger difficulties are limited solely to co-workers or members of the public and not supervisors. In other words, substantial evidence of record does not support the finding that Bayze can relate and interact with supervisors. In omitting Bayze' limitations as to his ability to work with supervisors and to maintain schedules, the ALJ did not specifically and legitimately reject Dr. Rohen's opinions. Lester, 81 F.3d at 829-830.
The Commissioner objects to the magistrate judge's finding that the ALJ's stated reasons for rejecting the opinion of nurse practitioner Pat Joyce were insufficient.
Joyce cited to Bayze's chronic auditory hallucinations, irritable mood, difficulty with getting along with others, depression, and possible cognitive issues,
Because Joyce was not an acceptable medical source, the ALJ did not give her opinions any weight. The ALJ also determined Joyce's assessment was inconsistent with treatment notes, Global Assessment of Functioning scores and Bayze's daily activities of living. (AR. 35) The Court agrees with the magistrate judge that the ALJ may only discount such testimony by giving reasons germane to her testimony for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Although Joyce's assessment may have been inconsistent with the treatment notes, it was largely consistent with the opinions of Drs. Perea, Barnes, and Rohen. While the Court does not think Joyce's opinions are entitled to significant weight, the Court finds the substantial evidence in the record does not support the wholesale rejection of Joyce's assessment.
The Commissioner objects to the magistrate judge's finding error with the ALJ's evaluation of Bayze's testimony and the lay witness statements of record. The Commissioner points out (1) the ALJ found that the medical evidence did not support Bayze's claims and showed improvement with medication compliance, Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (upholding credibility determination where ALJ pointed out that claimant's statements at the hearing did not comport with objective evidence in her medical record), (2) the ALJ noted Bayze's claims of disabling mental limitations were inconsistent with the GAF scores which consistently indicated mild to, at most, moderate symptoms, Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ reasonably discounted claimant's subjective complaints where a GAF rating indicated only mild symptoms), (3) the ALJ noted Bayze's described level of functioning was inconsistent with his alleged limitations, 20 C.F.R. § 404.1529(c)(3)(i) (stating an ALJ must consider a claimant's activities), and (4) the ALJ noted inconsistencies in Bayze's testimony, 20 C.F.R. § 404.1529(c)(4) (stating an ALJ must consider whether there are conflicts between a claimant's statements and the rest of the evidence). The Commissioner asserts that, because the ALJ identified valid reasons for discounting Bayze's (and lay witnesses') subjective complaints of disabling mental limitations, the ALJ's credibility finding should be affirmed.
Bayze has produced objective medical evidence of an underlying impairment that could reasonably give rise to his symptoms. Moreover, there has not been an affirmative finding of malingering by the ALJ. The ALJ's reasons for rejecting Bayze's testimony, therefore, must be clear and convincing. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). "The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
The ALJ's finding that the medical evidence did not support Bayze's claims and that he showed improvement with medication compliance is not a legitimate reason because it does not take into account that the ALJ improperly rejected medical opinions. Similarly, in improperly rejecting the medical opinions, the ALJ did not consider the apparently cyclical nature of Bayze's symptoms and whether/how that could affect GAF scores. Moreover, the Court agrees with the magistrate judge's assessment of evidence as to Bayze's credibility, including alleged discrepancies:
RR, pp. 17-19.
As to the statements of Bayze's mother and girlfriend, the ALJ improperly rejected the reports because of bias based on the witnesses' relationship with Bayze. Smolen, 80 F.3d at 1289 (lay witnesses who see a claimant everyday are of particular value; such witnesses will often be family matters). The ALJ did not state clear and convincing reasons for rejecting the testimony of the lay witnesses.
The Commissioner asserts the appropriate remedy is remand for further proceedings. A reviewing court should "credit improperly rejected evidence" and remand the matter for an award of benefits when:
Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003). However, "[r]emand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593, (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). "`[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'" Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)).
Here, remand for an immediate award of benefits is appropriate. The ALJ did not provide adequate reasons for rejecting medical opinions and lay witnesses, including Bayze. Further, "[t]he substantial evidence of record overwhelmingly supports the conclusion that Plaintiff must not only avoid co-workers and the public as the ALJ found, but that his ability to interact appropriately with supervisors and to maintain a regular schedule is also limited." RR, p. 20. The application was reconsidered by the ALJ once upon remand from the Appeals Council and Bayze's application for benefits has been pending for over seven years.
Accordingly, after an independent review, IT IS ORDERED:
1. The Report and Recommendation (Doc. 35) is ADOPTED.
2. The decision of the ALJ is REVERSED;
3. This matter is REMANDED for an award of benefits, and;
4. The Clerk of the Court shall enter judgment in this case and shall then close its file in this matter.