PAUL L. ABRAMS, Magistrate Judge.
Plaintiff filed this action on January 9, 2014, seeking review of the Commissioner's denial of her application for Disability Insurance Benefits. The parties filed Consents to proceed before the undersigned Magistrate Judge on January 28, 2014, and March 3, 2014. Pursuant to the Court's Order, the parties filed a Joint Stipulation on August 27, 2014, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.
Plaintiff was born on September 4, 1953. [Administrative Record ("AR") at 136, 253.] She has some college education and past relevant work experience as, among other things, a receptionist and an administrative clerk. [AR at 135-36, 291, 296.]
On August 19, 2009, plaintiff filed an application for Disability Insurance Benefits. [AR at 103, 253-54.] Plaintiff alleged disability beginning on July 1, 2008. [AR at 103, 253.] After the application was denied initially and upon reconsideration, she filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 103, 146-49, 151-55, 157-58.] A hearing was held on October 21, 2010, at which time plaintiff appeared represented by an attorney and testified on her own behalf. [AR at 20-50, 103.] A vocational expert ("VE") also testified. [AR at 24-39, 103.] On November 22, 2010, the ALJ issued a decision concluding that plaintiff was not under a disability from July 1, 2008, through the date of the decision. [AR at 103-11.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 189-91.] On March 23, 2012, the Appeals Council vacated the ALJ's decision and remanded the matter for another hearing and a new decision. [AR at 117-19.] Specifically, the Appeals Council found that although the ALJ determined that plaintiff had moderate difficulty maintaining social functioning, as well as moderate difficulty maintaining concentration, persistence, or pace, the assessed residual functional capacity ("RFC") did not include any social limitations. [AR at 117-18.] The Appeals Council also found that the decision was signed by ALJ Helen E. Hesse on behalf of ALJ Milan M. Dostal without the required authorization. [AR at 118.]
On October 15, 2012, a second hearing was held before a different ALJ. [AR at 53-91.] Plaintiff, represented by an attorney, appeared and testified on her own behalf. [AR at 55-77.] A medical expert ("ME") and a VE also testified. [AR at 77-90.] On December 6, 2012, the ALJ issued a decision concluding that plaintiff was not under a disability from July 1, 2008, through the date of the decision. [AR at 124-37.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 18-19.] On November 7, 2013, the Appeals Council denied review. [AR at 1-7.] This action followed.
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The 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.
"Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A);
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920;
In this case, at step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged onset date, July 1, 2008.
Plaintiff contends that the ALJ erred when she gave reduced or no weight to the mental function assessments of treating psychiatrist Sayeh Beheshti, M.D.; examining psychologist G.A. Elmer Griffin, Ph.D.; and state agency review psychiatrists M. Morgan, M.D., and G. Johnson, MD.
"There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians."
"[T]he ALJ may only reject a treating or examining physician's uncontradicted medical opinion based on clear and convincing reasons."
In this case, the ALJ stated that she gave "little weight" to the opinions of plaintiff's treating psychiatrist and examining psychologist, and "less weight" to the opinions of the two state agency psychiatrists. [AR at 130, 131, 134.]
Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for rejecting the opinions in the September 4, 2009, Psychiatric/Psychological Impairment Questionnaire ("Questionnaire") completed by Dr. Beheshti, her treating psychiatrist at Orange County Behavioral Health Services, where plaintiff had been receiving mental health treatment since March 2008. [JS at 9; AR at 414-21.] Specifically, plaintiff contends that the ALJ discounted Dr. Beheshti's finding of moderate limitations relating to memory, concentration, and persistence for reasons that were not legally sufficient. [JS at 12-13.]
In her report, Dr. Beheshti diagnosed plaintiff with bipolar disorder. [AR at 414.] She found plaintiff moderately limited ("significantly affects but does not totally preclude the individual's ability to perform the activity")
The ALJ gave "little weight" to the opinions of Dr. Beheshti:
[AR at 130.]
Preliminarily, the Court agrees with plaintiff that the ALJ's finding that plaintiff "does have some memory problems but that the memory problems are also likely related to her physical impairments" [JS at 13 (citing AR at 130)], is not a legally sufficient reason for discounting Dr. Beheshti's opinion regarding plaintiff's memory problems for purposes of the ALJ's RFC determination. Even if the ALJ properly discounted this finding in assessing plaintiff's paragraph B functional criteria [
In fact, a review of the record shows that with the exception of Dr. Griffin, who found a "slight" limitation in plaintiff's ability to understand and remember complex, and detailed, instructions
The limitation assessed by Drs. Johnson and Morgan to simple repetitive work appears to be consistent with both of those doctors' assessments, as well as with Dr. Beheshti's assessment, that plaintiff is moderately limited in understanding, remembering, and carrying out detailed instructions and, therefore, should be limited at least to simple repetitive tasks. Drs. Beheshti and Morgan also found plaintiff moderately limited in her ability to understand, remember, and carry out one or two-step instructions, which might indicate a limitation to a more restrictive SVP level of work. [Attach. A, nos. 2, 4.] The ALJ, however, who gave limited or less weight to all four of these doctors' opinions, including plaintiff's treating psychiatrist, provided no specific and legitimate reason to discount the three psychiatrists' opinions regarding plaintiff's limitations in her ability to understand, remember, and carry out one or two-step instructions, or detailed instructions, in favor of the contradictory opinion of Dr. Griffin who assessed plaintiff on only one occasion and who, despite finding plaintiff's memory to be "average," also found "slight" limitation in plaintiff's ability to understand and remember complex, and detailed instructions. "Although it is within the power of the [Commissioner] to make findings . . . and to weigh conflicting evidence, [s]he cannot reach a conclusion first, and then attempt to justify it by ignoring competent evidence in the record that suggests an opposite result."
On April 29, 2011, Dr. Griffin performed a consultative psychological examination and evaluation of plaintiff. [AR at 668-75.] He also reviewed the treatment notes from Orange County Behavioral Health Services, and other treating records and notes from March 9, 2010, to August 23, 2010, and from October 20, 2009. [AR at 668-69.]
Dr. Griffin administered three standardized tests: the Millon Clinical Multiaxial Inventory-III ("MCMI-III"), the Wechsler Memory Scale-III (Abbreviated) ("WMS-III"), and the Rey-II, a test for "gross malingering." [AR at 672.] Based on plaintiff's scores on the WMS-III, Dr. Griffin found that the results showed her "memory functioning, including attention and concentration," to be in the "average range." [AR at 673.] Dr. Griffin provided no explanation regarding the nature of the memory tests, or the meaning of the results (other than later finding no limitation in plaintiff's ability to understand, remember, and carry out short, simple instructions, and slight limitation in her ability to understand and remember complex, and detailed, instructions). [AR at 674.] Dr. Griffin also found that plaintiff exhibited irritable hypersensitivity to criticism, low frustration tolerance, and a high degree of emotional lability and impulsive angry outbursts alternating with recurring depressive complaints and sulking, such that plaintiff would have unstable relationships and unpredictable behavior. [AR at 672-73.]
In his "Ability to Work" form, Dr. Griffin assessed "marked"
Dr. Griffin concluded that the results of his various assessments and evaluation of plaintiff indicated a diagnosis of Borderline Personality Disorder, which, in his judgment, incorporated the "affective instability described by the claimant and the clinical records in terms of `Bipolar Disorder,' as well as her reported history of substance abuse, which can be included among the diagnostic criteria for Borderline Personality Disorder." [AR at 673-74.]
The ALJ stated that she gave "little weight" to the opinions of Dr. Griffin:
[AR at 129, 131 (citations omitted).] The ALJ also found that because of plaintiff's "noted difficulty interacting with others that led to the diagnosis of borderline personality disorder from Dr. Griffin," plaintiff "does need to limit her contact with others as follows: no public contact, only occasional interaction with coworkers and supervisors, and no jobs requiring team participation." [AR at 133.]
Plaintiff argues that the ALJ's one articulated rationale for giving less weight to Dr. Griffin's opinions —
Based on the foregoing, the Court agrees with plaintiff that Dr. Griffin's diagnosis — which appears simply to be a difference of medical opinion, and which was accepted by the ALJ as an additional impairment — is not, therefore, a specific and legitimate reason to discredit Dr. Griffin's other findings regarding plaintiff's social functioning, responding to changes in work settings, and work pressure.
Plaintiff also complains that the ALJ inferred that plaintiff is "more capable regarding her social capabilities than opined by Dr. Griffin" [JS at 15 (citing AR at 131)] and, while the ALJ deferred to Dr. Griffin's restriction to interactions with the general public, she adopted "only lesser limitations with regard to [plaintiff's] ability to deal with coworkers and supervisors and with workplace changes: i.e., [finding] that she could perform those tasks `occasionally.'" [JS at 14 (citing AR at 131, 674).] The Court finds this argument persuasive.
As with Dr. Beheshti's (and Dr. Morgan's) opinion that plaintiff had marked limitations in her ability to accept instructions and respond appropriately to criticism from supervisors [Attach. A, no. 14], Dr. Griffin also found plaintiff had marked limitations in her ability to interact appropriately with supervisors, as well as with coworkers. [AR at 674; Attach. A, nos. 14, 15, C.] The ALJ accepted Dr. Griffin's finding that plaintiff was markedly limited in her ability to interact appropriately with the general public, by precluding public contact in the RFC determination, despite the fact that Drs. Beheshti and Morgan found mild or no limitations respectively, and Dr. Johnson found only moderate limitations in this functional category. [AR at 131; Attach. A, no. 12.] In contrast, Dr. Griffin, as well as Drs. Beheshti and Morgan, all found plaintiff markedly limited in her ability to interact with supervisors. [Attach. A, no. 14, C.] In discussing her finding that plaintiff was no more than moderately limited in social interactions, the ALJ stated:
[AR at 129.] The ALJ then went on to note that "[plaintiff] does need to limit her contact with others as follows: no public contact, only occasional interaction with supervisors, and no jobs requiring team participation. This is because of her noted difficulty interacting with others that led to the diagnosis of a borderline personality disorder from Dr. Griffin." [AR at 133.] Thus, the ALJ discredited Dr. Griffin's findings because plaintiff exhibited good social capabilities, while at the same time crediting his findings because of plaintiff's "noted difficulty interacting with others." These reasons seem, at best, to be contradictory and, therefore, do not constitute a specific and legitimate reason for discrediting Dr. Griffin's findings regarding plaintiff's social functioning.
Moreover, it is not clear why, based on the above reasoning, the ALJ would credit Dr. Griffin's marked limitation regarding plaintiff's inability to interact appropriately with the general public, and yet inexplicably not credit his identical finding regarding plaintiff's marked limitation in her ability to interact appropriately with supervisors. This is especially puzzling because, as mentioned, no doctor other than Dr. Griffin found plaintiff more than moderately limited in her interactions with the general public — yet the ALJ precluded interactions with the general public; while all doctors except Dr. Johnson found plaintiff markedly limited with respect to her interactions with supervisors — yet the RFC nevertheless provided for occasional contact with supervisors.
Based on the foregoing, the ALJ did not provide specific and legitimate reasons supported by substantial evidence for discounting the findings of Dr. Griffin, as well as the findings of Dr. Beheshti and Dr. Morgan, each of whom found plaintiff to be "markedly limited" in her ability to interact appropriately with supervisors.
Plaintiff also alleges that the ALJ did not credit any aspect of Dr. Griffin's opinion with regard to plaintiff's marked limitation in her ability to respond to work pressures. [JS at 16.] She notes that Dr. Beheshti also found plaintiff incapable of tolerating any more than a low stress work environment
A review of the ALJ's decision, however, shows that she did not entirely ignore all of these particular findings. In fact, the ALJ specifically noted that plaintiff should work in an object-oriented setting to negate potential distractions, "should only be subject to occasional changes in her work setting, to also negate any distractions or difficulty moving from one task to another," and "should avoid work where the safety of others would be compromised or ones involving hyper-vigilance." [AR at 133.] The ALJ concluded that "[t]hese [RFC] limitations are in place to help the claimant stay focused but not too focused, as too much focus will lead to stress that will lead to symptom flare-ups from buil[t]-up stress." [
However, because the matter is being remanded, the ALJ should also specifically reconsider plaintiff's limitations relating to her ability to respond to work pressures or tolerate anything more than a low-stress work environment as well as her ability to respond appropriately to changes in the work environment.
On December 11, 2009, Dr. Morgan, a state agency reviewing psychiatrist, assessed plaintiff's residual mental function based on a review of the medical records to that date. [AR at 454-56.] Dr. Morgan found moderate limitations in plaintiff's ability to remember locations and work-like procedures; understand, remember, and carry out very short and simple instructions, as well as detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; work in coordination with or proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically-based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods; respond appropriately to changes in a work setting; and travel in unfamiliar places or use public transportation. [AR at 454-55; Attach. A, nos. 1-7, 9-11, 17, 19.] Dr. Morgan noted marked limitations in plaintiff's ability to accept instructions and respond appropriately to criticism from supervisors; and to set realistic goals or make plans independently of others. [AR at 455; Attach. A, nos. 14, 20.] Dr. Morgan concluded that plaintiff is able to "complete a normal workday/workweek, performing simple repetitive tasks, in a setting that involves limited contact with others." [AR at 456.]
On February 24, 2010, Dr. Johnson, a state agency reviewing psychiatrist, also assessed plaintiff's mental function. [AR at 509-11.] Dr. Johnson found moderate limitations in plaintiff's ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; complete a normal workday and workweek without interruptions from psychologically-based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; and respond appropriately to changes in a work setting. [AR at 509-10; Attach. A, nos. 3, 5-7, 11-12, 17.] Dr. Johnson concluded that plaintiff has the capacity to understand, remember, and carry out non-public simple repetitive tasks in a regular workday or workweek. [AR at 511.]
The ALJ gave "great weight" to the opinion of Dr. Morgan and Dr. Johnson with respect to their paragraph B severity findings:
[AR at 131.]
However, in determining plaintiff's RFC, the ALJ gave the opinions of both Dr. Morgan and Dr. Johnson "less weight," stating that their opinions were not fully consistent with the full medical evidence of record. [AR at 134.] Specifically, the ALJ noted that their limitation to simple repetitive tasks was "too restrictive" in light of the formal testing by Dr. Griffin, which found that plaintiff "demonstrated average memory capabilities." [AR at 134.]
Plaintiff complains that although the ALJ gave the opinions of Dr. Johnson and Dr. Morgan "great weight," she "simply ignored" "substantial aspects of both doctors' opinions," specifically with respect to plaintiff's moderate limitations in her ability to maintain attention and concentration for extended periods, to perform activities within a schedule, to complete a normal workday, and to perform at a consistent pace. [JS at 16-17 (citing AR at 454-56, 509-11).]
As previously noted, however, the ALJ actually gave "little weight," not "great weight," to the opinions of these doctors, primarily with respect to their findings that plaintiff should be limited to simple routine tasks. [
As this matter is being remanded for reconsideration of the opinions of all of these doctors, the ALJ on remand should also reconsider the weight to be given to the opinions of Dr. Johnson and Dr. Morgan regarding plaintiff's limitation in social functioning as it relates to supervisors, and to any limitations in her abilities to maintain attention and concentration for extended periods, to perform activities within a schedule, to complete a normal workday/workweek without interruption from psychologically-based symptoms, to perform at a consistent pace, and to perform anything more than simple repetitive work.
The Court agrees with the parties that the varying opinions of the four doctors make the analysis difficult in this case. And, as discussed, although the ALJ gave all four opinions little weight, or less weight, overall the ALJ did not provide legally sufficient reasons for rejecting certain limitations, while crediting or discounting others. It appears to the Court, therefore, that the ALJ picked those issues that would best support a finding of not disabled, for instance: (1) crediting Dr. Griffin's uncorroborated finding that plaintiff is markedly limited in her interactions with the general public, but discounting his finding, and the corroborating findings of Drs. Beheshti and Morgan, that plaintiff is markedly limited in her ability to interact appropriately with supervisors; and (2) giving Dr. Griffin's opinions "little weight," yet using his memory function test results to discredit the other doctors' opinions on plaintiff's memory, attention, concentration, and pace, and limitation to simple repetitive work or one or two-step instructions. This was legal error.
The Court has discretion to remand or reverse and award benefits.
Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate.
In this case, as discussed above, because the ALJ failed to provide legally sufficient reasons for rejecting or discrediting medical opinion evidence, it is not clear that if the improperly discredited evidence were credited as true the ALJ would be required to find plaintiff disabled on remand. Thus, the Court finds that there are outstanding issues that must be resolved before a final determination can be made.
In an effort to expedite these proceedings and to avoid any confusion or misunderstanding as to what the Court intends, the Court will set forth the scope of the remand proceedings. First, the ALJ must assess, based on the evidence of record, whether plaintiff is limited to simple repetitive tasks, or to work involving one or two-step instructions, or both. Next, the ALJ must reconsider the opinions of Drs. Beheshti, Griffin, Johnson, and Morgan with respect to plaintiff's limitations in her ability to accept instructions and respond appropriately to criticism from supervisors, and to interact appropriately with supervisors. In assessing the medical opinion evidence of these doctors, the ALJ must explain the weight afforded to each opinion and provide legally adequate reasons for any portion of the opinion that the ALJ discounts or rejects, including a legally sufficient explanation for crediting one doctor's opinion over any of the others. Further, the ALJ must reconsider plaintiff's limitations with respect to Dr. Griffin's finding of marked limitation in plaintiff's ability to respond appropriately to work pressures in a usual work setting, and Dr. Beheshti's related finding that plaintiff is capable of low work stress only. In light of the foregoing, the ALJ shall reassess plaintiff's RFC. Finally, the ALJ shall determine, at step five, with the assistance of a VE if necessary, whether plaintiff is capable of performing other work that exists in significant numbers in the national economy.
