MICHAEL H. SIMON, District Judge.
Joseph D. Monti ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his applications for Social Security Income and Children's Disability Insurance Benefits. For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings.
The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.
Plaintiff applied for Social Security Income and Children's Disability Insurance Benefits in June and July 2009, respectively, alleging disability as of February 23, 2006. AR 47, 178-93, 211.
On April 28, 2014, the Honorable Malcolm F. Marsh affirmed the ALJ's treatment of Plaintiff's subjective symptom testimony and the medical evidence relating to Plaintiff's physical functioning. AR 816-25. Judge Marsh, however, found that the ALJ erred regarding the opinion of examining doctor Judith Eckstein, Ph.D. AR 825-29. Accordingly, Judge Marsh remanded the matter for further proceedings. AR 828-29.
On February 24, 2015, a second administrative hearing was held. Plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). AR 743-86. On April 16, 2015, the ALJ issued a second decision, again finding Plaintiff not disabled. AR 720-33. Plaintiff now seeks review in this Court.
A claimant is disabled if he or she is unable 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). "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 Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
The ALJ performed the sequential analysis. AR 720-33. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR 722. At step two, the ALJ concluded Plaintiff had the following severe impairments: "status post gunshot wound in the back, attention deficit hyperactivity disorder, learning disorder, mathematics disorder, dysthymia, depressive disorder NOS, rule out bi-polar disorder (most recent episode depressed), port-traumatic stress disorder, and cannabis dependence." AR 723. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or equaled a listed impairment. AR 724.
The ALJ next assessed Plaintiff's RFC and found that he could perform sedentary work with the following exceptions:
AR 726. At step four, the ALJ found Plaintiff had no past relevant work. AR 731. At step five, the ALJ concluded that, based on the testimony of a VE, Plaintiff could perform jobs existing in significant numbers in the national and local economy, including small products assembler, electronics assembler, and computer controlled color photo printer operator. AR 731-32. Thus, the ALJ found Plaintiff not disabled. AR 733.
Plaintiff argues the ALJ erred by: (1) improperly assessing the medical opinion evidence; and (2) rendering an invalid RFC and step five finding.
Plaintiff contends that the ALJ erred in weighing the medical opinions of Dr. Eckstein and examining psychologist Scott Alvord, Psy.D. The ALJ is responsible for resolving conflicts in the medical record, including conflicts among physicians' opinions. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes between the opinions of three types of physicians: treating physicians, examining physicians, and nonexamining physicians. Generally, "a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). An examining doctor's opinion that is not contradicted by the opinion of another physician can be rejected only for "clear and convincing" reasons. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another physician's opinion, the ALJ must provide "specific, legitimate reasons" for discrediting the examining physician's opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Dr. Eckstein examined Plaintiff in November 2009. AR 517-22. Her evaluation consisted of a clinical interview, administration of the Wechsler Adult Intelligence Scale, and the review of records from Brain Goldman, M.D., dated June 1, 2004. AR 517. Dr. Eckstein assessed borderline intellectual functioning and diagnosed Plaintiff with ADHD, dysthymia, cannabis dependence, mathematics disorder, and learning disorder. AR 519-22. She recommended that Plaintiff undergo counseling. AR 522.
In September 2012, Dr. Eckstein wrote a letter at the request of Plaintiff's attorney. AR 1133-35. Although Dr. Eckstein did not re-examine Plaintiff, she reviewed her original report as well as additional documents, including Plaintiff's school records and written lay statements from Plaintiff's friend and mother. Id. In the "Discussion" section of her letter, Dr. Eckstein wrote:
AR 1135.
In a corresponding "Mental Residual Function Capacity Report," Dr. Eckstein checked boxes reflecting that Plaintiff would be "markedly limited"
The ALJ afforded "[p]artial weight" to Dr. Eckstein's opinion for five reasons: (1) "[s]he combines an opinion regarding physical conditions (`chronic pain') with mental health issues [and] such a determination is not within the scope of her expertise"; (2) it "is not supported by any explanation"; (3) she "fails to put her statements in terms of functional limitations"; (4) it "was made before the claimant engaged in fairly consistent, although non-SGA, employment in 2013 and in 2014"; and (5) it "lacks consistency with the overall medical record as it is based on third party reports that are written to advocate for the claimant, rather than being impartial observations." AR 729.
As a preliminary matter, the ALJ's decision does not distinguish between Dr. Eckstein's 2009 and 2012 reports. Thus, it is unclear whether the ALJ reviewed the record in its entirety. Id. This is significant because neither the prior ALJ nor Judge Marsh reviewed or otherwise discussed Dr. Eckstein's September 2012 letter on appeal, as it was not in existence at the time of the prior ALJ's February 2012 decision. AR 18-36, 811-29. In addition, the ALJ failed to acknowledge the "Mental Residual Function Capacity Report." Compare AR 729 (the ALJ concluding that Dr. Eckstein's opinion is not phrased "in terms of functional limitations"
Moreover, the ALJ's conclusion that Dr. Eckstein's opinion lacks consistency with the medical record and does not relate to her area of expertise is not supported by substantial evidence. AR 729. Outside of attending assessments with Drs. Eckstein and Alvord, and one counseling session in 2013 through Douglas County Mental Health, Plaintiff did not seek any treatment for his allegedly disabling mental impairments, and the ALJ relied on this as a basis to find Plaintiff not fully credible. AR 728. Regardless, the little medical evidence that does exist is largely consistent with both Dr. Eckstein's report and the lay witness testimony of Plaintiff's friend.
Similarly, the fact that Plaintiff worked part-time after Dr. Eckstein authored her September 2012 letter is not a legally adequate basis to reject her opinion. As the ALJ acknowledged, Plaintiff worked from 2008 through 2011, and again in 2013 and 2014, but not at substantial gainful levels. AR 723, 729. Plaintiff testified that he was employed by a temporary agency during 2013 and 2014, but was terminated from each position due to his inability to sustain the requisite pace, operate within a set schedule, or take instruction from supervisors. AR 755-56, 758-69. As noted above, although the ALJ found Plaintiff not fully credible and Plaintiff does not challenge that finding in this appeal, there is no evidence in the record that contradicts the Plaintiff's statements made during the hearing on this issue. Accordingly, without more, the ALJ's conclusion that Plaintiff's subsequent part-time work undermines Dr. Eckstein's opinion is insufficient. Therefore, the ALJ erred in affording less weight to Dr. Eckstein's opinion.
In August 2014, Dr. Alvord performed a single evaluation of Plaintiff, which consisted of a clinical interview, a mental status examination, and a review of Dr. Goldman's June 2004 report. AR 1145. Dr. Alvord diagnosed Plaintiff with PTSD, "ADHD by history," and depression; Dr. Alvord also listed bi-polar disorder as a rule out possibility. AR 1149. Dr. Alvord opined that Plaintiff would be "mildly to moderately impaired [in his] ability to follow instructions [and] to concentrate, persist and pace." AR 1147. The doctor explained that Plaintiff would "struggle to maintain consistency in an occupational setting given anxiety, as well as deferred pain issues and emotional lability, irritability, anger, etc." AR 1149. On a corresponding "Medical Source Statement Of Ability To Do Work-Related Activities (Mental)," Dr. Alvord endorsed "marked" limitation in only one category, the ability to interact appropriately with supervisors.
The ALJ gave "little weight" to Dr. Alvord's opinion because it was "internally inconsistent." AR 729. Specifically, the ALJ found that the marked limitation assessed by Dr. Alvord was unwarranted because Plaintiff "referred to only doing work `under the table,' which is inconsistent with his posting of earnings," and "nothing in Dr. Alvord's examination relates to the claimant's interactions with supervisors, as compared to coworkers or the public." Id.
Initially, the fact that Plaintiff reported to Dr. Alvord that he "sometimes [does] under the table stuff" does not establish, as the ALJ implies, that Dr. Alvord's opinion was premised on incomplete information. AR 1146. Notably, Dr. Alvord did not appear to request a full work history from Plaintiff; rather, his examination focused on whether Plaintiff was "currently working" and, if not, what issues contributed to his lack of employment. AR 1146. Dr. Alvord examined Plaintiff in the latter part of 2014; Plaintiff posted $2,427.45 in earnings that year, which equates to less than two weeks of full-time, minimum wage labor. AR 723, 1145. As such, nothing in the record contradicts Plaintiff's statement to Dr. Alvord that he was not currently working or otherwise undermines the accuracy of Dr. Alvord's findings.
Additionally, substantial evidence does not support the ALJ's determination that Dr. Alvord failed to solicit information regarding Plaintiff's ability to interact with supervisors. AR 729. Indeed, Plaintiff "endorsed a history of irritability, opposition to authority, peer conflicts and academic struggles," as well as being "frequently triggered to anger and panic." AR 1146-47. Dr. Alvord also noted that Plaintiff's records revealed that "he was frequently disciplined" while in school and "fired, a lot." AR 1146. This evidence pertains to Plaintiff's ability to interact with supervisors and reinforces Dr. Alvord's marked limitation.
In sum, the ALJ committed legal error that was not harmless in weighing the medical opinion evidence from Drs. Eckstein and Alvord. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2012) (only mistakes that are "nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion" are harmless).
Plaintiff argues that the ALJ's RFC and step five finding are erroneous because the dispositive hypothetical question posed to the VE did not account for all of his limitations. This argument is well-taken. As discussed herein, the ALJ wrongfully rejected the opinion of Drs. Eckstein and Alvord. Because the ALJ failed to account for the concrete work-related limitations of function described by these medical sources in Plaintiff's RFC, the ALJ erred in relying upon the VE's testimony. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (if a VE's "hypothetical does not reflect all the claimant's limitations, then the . . . testimony has no evidentiary value") (citations and internal quotation marks omitted). As a result, the ALJ's ultimate decision is not supported by substantial evidence and remand is necessary.
Within the Court's discretion under 42 U.S.C. § 405(g) is the "decision whether to remand for further proceedings or for an award of benefits." Holohan, 246 F.3d at 1210 (citation omitted). Although a court should generally remand to the agency for additional investigation or explanation, a court has discretion to remand for immediate payment of benefits. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). 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. Id. at 1100. A court may not award benefits punitively and must conduct a "credit-as-true" analysis on evidence that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act. Strauss v. Comm'r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the "credit-as-true" doctrine is "settled" and binding on this Court. Garrison, 759 F.3d at 999. The United States Court of Appeals for the Ninth Circuit articulates the rule as follows:
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation marks omitted).
As discussed in this Opinion and Order, the ALJ erred by failing to provide legally sufficient reasons, supported by substantial evidence, for disregarding Dr. Eckstein's and Dr. Alvord's opinions. The record before this Court, however, is ambiguous regarding the extent of Plaintiff's allegedly disabling mental impairments. On the one hand, Plaintiff endorsed debilitating social anxiety and problems focusing; Plaintiff's school records show longstanding issues with maintaining concentration and impulse control, and the traumatic shooting that Plaintiff sustained on the alleged onset date supports the existence of ongoing psychological conditions, such as PTSD and depression. AR 517-22, 588-600, 808, 933-1140, 1145-70. On the other hand, Plaintiff was consistently employed, to an extent, during 2013, engaged in a wide slate of daily activities, and regularly socialized with friends and engaged in romantic relationships. AR 222-37, 359, 508-09, 518, 521, 573, 927, 1145, 1147. In fact, although the ALJ did not rely on this reasoning as part of his decision, the Court notes that Plaintiff's employment records demonstrate that, between May and November 2013, he worked full-time, sometimes in excess of 60 hours per week. AR 927. Plaintiff also testified at the hearing that "if I tell myself to do something, then I usually get it done." AR 773. This evidence suggests that Plaintiff is capable of maintaining a routine, engaging in socially appropriate behavior, taking instruction, and staying on task when he wants to or believes he needs to.
In light of these ambiguities, further proceedings are required to resolve this case. Upon remand, the ALJ must consult a medical expert to review the entire record and determine the onset date of any functional limitations, and, if necessary, reformulate Plaintiff's RFC and obtain additional VE testimony.
The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.
