YOULEE YIM YOU, Magistrate Judge.
Blake L. ("plaintiff"), seeks judicial review of the final decision by the Commissioner of Social Security ("Commissioner") denying his application for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, it should be REVERSED and REMANDED for further proceedings.
Born in 1983, plaintiff was 30 years old on his alleged disability onset date, and 33 years old at the time of his administrative hearing. Tr. 34, 78, 89. He completed two years of college towards a bachelor's degree in accounting. Tr. 29, 32. Plaintiff has past relevant work as a fast food restaurant manager and retail cashier. Tr. 32. He alleges disability due to vasovagal syncope, bipolar disorder, chronic migraines, depression, anxiety, social anxiety, and obsessivecompulsive disorder. Tr. 78, 89.
Plaintiff filed applications for DIB and SSI on February 18, 2014, alleging disability beginning February 28, 2013. Tr. 22. Plaintiff's claim was denied initially and upon reconsideration. Id. On April 20, 2016, a hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 40-75. On June 3, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 22-34. After the Appeals Council denied his request for review, plaintiff filed a complaint in this court. Tr. 1-7. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. § 422.210.
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and "may not affirm simply by isolating a specific quantum of supporting evidence." Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.
Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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 engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision in this case, Tr. 23-24.
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity after the alleged onset date and met the insured status requirements of the Act through the relevant time frame. Tr. 24.
At step two, the ALJ found that plaintiff has the following severe impairments: affective disorder with bipolar features; generalized anxiety disorder; borderline personality disorder; and marijuana abuse. Id.
At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 25. The ALJ next assessed plaintiff's residual functional capacity ("RFC") and determined that he could perform a full range of work at all exertional levels with the following limitations: plaintiff was "capable of performing work involving simple, routine tasks; and may have occasional, superficial contact with the public." Tr. 27
At step four, the ALJ found plaintiff could not perform his past relevant work as a fast food services manager or retail cashier/store keeper. Tr. 32.
At step five, the ALJ found that considering plaintiff's age, education, and RFC, a significant number of jobs existed in the national and local economy such that plaintiff could sustain employment despite his impairments. Tr. 33. Specifically, the ALJ found plaintiff could perform representative occupations of laundry sorter, hand packager, and office helper. Tr. 33-34. Accordingly, the ALJ determined that plaintiff was not disabled at any time through the date of his decision. Tr. 34.
Plaintiff argues that the ALJ: (1) improperly discounted his subjective symptom testimony; (2) erroneously assessed the medical opinion of treating physician, Joel Julian, M.D.; (3) improperly discounted the lay testimony of plaintiff's father Mark L. and his partner David K.; (4) failed to properly evaluate whether he met a listing at step three; and (5) failed to include all of plaintiff's limitations into his RFC at step five.
Plaintiff alleges that the ALJ wrongfully discounted his subjective symptom testimony. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in secondguessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
Effective March 28, 2016, the Commissioner superseded Social Security Ruling ("SSR") 96-7p, governing the assessment of a claimant's "credibility," and replaced it with SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to "credibility," clarifies that "subjective symptom evaluation is not an examination of an individual's character," and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine "the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Id. at *4.
At the hearing, plaintiff testified he was first diagnosed with bipolar disorder in 2007. Tr. 49. He explained that, during 2008, his anxiety and bipolar disorder made things "tough," but that it "was a pretty up year." Tr. 50. By 2009, however, "things started to fall apart," at which point plaintiff focused on his medication management. Id. It was "very hard for him to show up on time" for his job at a fast food restaurant, he "missed several days a week," and his supervisor "covered for [him] a lot." Id. In 2009, plaintiff received a medical marijuana card for migraines. Tr. 51. At various points throughout the relevant time period, plaintiff used marijuana between "five to seven" days per week, sometimes daily, to calm himself down when in a "manic state." Tr. 51.
Plaintiff testified that he last worked as a cashier at Bed Bath and Beyond in 2014. Tr. 46. He explained that he had difficulty maintaining attendance due to "stress around dealing with coworkers and dealing with customers." Tr. 46-47. He testified that he "would arrive at work and sit [in his] car for quite a while—to the tune of, like, a half-hour to an hour and just kind of go through [his] head, you know what happens if [he went] in? What happens if [he didn't] go in? What [was he] going to have to deal with?" Tr. 46 (punctuation supplied). Although plaintiff's employer "worked with [plaintiff's] doctor" and allowed him to "go out on leave," he was ultimately terminated. Tr. 47.
During manic episodes, plaintiff was able to perform numerous household projects, such as painting and refinishing furniture; however, he had problems with his behavior, and became "extremely irritable" and had difficulty interacting with his son and partner. Tr. 59. He testified that during one two-month depressive period, he slept "a minimum" of 15 hours per day and had difficulty completing basic household chores. Tr. 60.
The Commissioner argues the ALJ provided three clear and convincing rationales for rejecting plaintiff's subjective symptom testimony: (1) objective findings; (2) the treatment record; and (3) inconsistencies in the record.
The Commissioner argues that the ALJ properly relied on objective evidence in rejecting plaintiff's subjective symptom testimony. While an ALJ may consider the lack of objective evidence in some circumstances, as the Commissioner correctly concedes, it may not be the sole basis for rejecting a claimant's subjective symptom testimony. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
The Commissioner directs the court to treating physician Dr. Julian's chart notes that document improved insight and judgment, good eye contact, normal speech, a pleasant and cooperative affect, and normal thought processes. Other than parroting the ALJ's summary of the medical evidence, however, the Commissioner fails to articulate what testimony the ALJ found not credible and what objective evidence led the ALJ to such a conclusion. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (rejecting an ALJ's reliance of the claimant's "good eye contact, organized and logical thought content, and focused attention" because "[t]hese observations of cognitive functioning during therapy sessions [did] not contradict [the claimant's] reported symptoms of depression and social anxiety"); see also Smolen, 80 F.3d at 1284 ("The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.") (citation omitted).
Moreover, viewed in context, Dr. Julian's findings are not in fact inconsistent with plaintiff's testimony that he had difficulties with attendance during depressive periods, and fail to account for the cyclical nature of his manic and depressive episodes. See Ghanim, 763 F.3d at 1162 (the "fact that a person suffering from depression makes some improvement does not mean that person's impairment no longer seriously affects his ability to function in the workplace") (quotation marks and bracketing omitted); see also Garrison, 759 F.3d at 1017 ("Cycles of improvement and debilitating symptoms are a common occurrence."). Indeed, a review of the treatment record reveals that plaintiff repeatedly presented with objective findings of depression and a low mood consistently between three and five out of a ten-point scale. See Tr. 454, 458, 460, 472, 564, 567-68, 571, 574, 579, 583, 586, 590, 594, 598.
As such, the objective medical record was not a proper basis to reject plaintiff's subjective symptom testimony.
The Commissioner next argues that the ALJ properly considered plaintiff's response to treatment in discounting his subjective symptom testimony. The effectiveness of treatment is a factor an ALJ may consider, and a favorable response to conservative treatment can undermine reports of disabling limitations. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Tommasetti, 353 F.3d at 1035. The Commissioner advances four rationales in support of this argument.
First, the Commissioner asserts that plaintiff responded positively to his psychotropic medications, specifically Abilify, with "additional medications added to the treatment regimen at various times." Def.'s Br. 5. The Commissioner, however, mischaracterizes the record, which shows that various medications, including Abilify, did not effectively control plaintiff's symptoms. In fact, plaintiff's cocktail of medications were in a near-constant state of flux as his providers sought to provide him with some relief. For example, the Commissioner relies on a November 2013 appointment where plaintiff "show[ed] some improvement with [a] recent increase in Abilify." Tr. 408. At that same appointment, however, Dr. Julian continued plaintiff's prescription of a "high dose of Effexor" due to "situational and environmental stressors." Id.
The Commissioner next cites a March 2014 treatment note. Def.'s Br. 6 (citing Tr. 411). However, a review of that treatment note does not reveal plaintiff's Abilify prescription alleviated his symptoms. While Dr. Julian did note that plaintiff was "now responding to recent medication changes," the doctor did not elaborate on the efficacy of those changes and in fact increased plaintiff's Abilify dosage to 30 milligrams per day. Tr. 411-12. Moreover, in Dr. Julian's objective evaluation, he found plaintiff's mood was "[m]ixed, both depressed and manic," and that plaintiff acknowledged passive suicidal thoughts. Id. A physician's statements "must be read in context of the overall diagnostic picture he draws." Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).
Second, the Commissioner erroneously relies on certain treatment notes. The Commissioner cites a treatment note from April 2015 that plaintiff's bipolar disorder was "in full remission." Def.'s Br. 6. However, this notation is from a medical provider who treated plaintiff a single time for a migraine, and is therefore not a clear and convincing reason to discredit plaintiff's subjective symptom testimony. Garrison, 759 F.3d at 1017 ("[I]it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working."); see also Tr. 538 ("Chief Complaint Patient presents with Migraine ongoing") (bulleting and emphasis removed). Moreover, the ALJ acknowledged—in the very next sentence of his decision—that from September 2015 through February of 2016, plaintiff "was again experience[ing] mood cycling with episodes of mania and depression." Tr. 30 (citing Tr. 574-94).
The Commissioner's reliance on a February 22, 2016 report
Third, the Commissioner points to the ALJ's observation that plaintiff "attended counseling and participated in group therapy between February 2016 and March 2016." Def's Br. 6 (citing Tr. 30). The ALJ concluded that plaintiff's ability "to make doctor's appointments, attend them, and answer questions on a regular, monthly basis" undermined his claim that he was unable to perform simple tasks. Tr. 30. However, an independent review of the medical and counseling records reveals that between February and March 2016, plaintiff continued to suffer from serious depression. See, e.g., Tr. 594 ("mood low" rated at 3/10 and "affect anxious, as well as restless and tearful at times"); Tr. 598 ("mood low" rated at 5/10); Tr. 657 (plaintiff "appeared depressed and detached"); Tr. 659 ("anxiety level 7").
Finally, the Commissioner relies on the ALJ's observation that plaintiff "had never been psychiatrically hospitalized." While it is true that plaintiff has not been hospitalized for his depression, where he has otherwise received extensive treatment as discussed above, his subjective symptom testimony cannot be discounted simply because he has been treated short of being hospitalized.
The Commissioner next argues that the ALJ permissibly discounted plaintiff's testimony based on inconsistencies in the record. The Commissioner relies on four purported inconsistences, none of which are clear and convincing reasons to discount plaintiff's testimony.
First, the Commissioner relies on the ALJ's observation that while plaintiff alleged he had problems with attendance at work due to his mental health diagnosis, he nevertheless was able to regularly attend appointments with Dr. Julian. Def.'s Br. 7. The Commissioner and ALJ also rely on an isolated chart note during a psychiatric interview that stated being "punctual" was one of plaintiff's strengths. Id. (citing Tr. 29, 464). These facts, the Commissioner argues, undermined plaintiff's testimony that he struggled with attendance at work during manic episodes.
These arguments are unavailing. Plaintiff's ability to attend monthly appointments with his treating mental health provider does not contradict his testimony that he struggled with attendance at a part-time job while he was suffering from debilitating depression and anxiety. Tr. 46-47; see also Tr. 465. If anything, plaintiff's desire to seek out treatment during periods of debilitating depression bolsters his testimony about the severity of his symptoms—i.e., it shows that plaintiff was seeking relief from severe depression.
Further, the ALJ's reliance on a single word—"punctual"—in an October 1, 2014 mental health triage interview at Providence Saint Vincent Medical Center is unconvincing. Notably, the ALJ neglected to discuss by name the medical professional who evaluated plaintiff or any of her clinical findings, including that plaintiff was "experiencing worsening depressive symptoms over the [previous] two months" after recently returning to part-time work. Tr. 464-65. This isolated one-word discrepancy is insufficient to undermine plaintiff's testimony, especially given evidence in the record that shows plaintiff struggled to maintain attendance at work. See Popa v. Berryhill, 872 F.3d 901 (9th Cir. 2017) (as amended) ("A single discrepancy fails, however, to justify the wholesale dismissal of a claimant's testimony.") (citation omitted); see also Tr. 235 (reporting plaintiff's "bipolar causes [him] to miss work, be late, or leave early"); Tr. 465 ("Current Condition began worsening 3 weeks ago, after starting the new job"); Tr. 664 (opining plaintiff is "extremely" limited in his ability to maintain regular attendance at work).
Second, the ALJ found plaintiff's reports of social anxiety were undermined by his ability to interact with his doctors, participate in some group therapy, and leave the house to accomplish tasks. Def's Br. 7 (citing Tr. 30). The Commissioner relies on Molina v. Astrue, in which the court upheld the ALJ's decision that the claimant's alleged "inability to tolerate even minimal human interaction was inconsistent" with the claimant's daily activities. Molina, 674 F.3d at 1113.
On that point, however, this case is distinguishable. Molina relied on the claimant's robust activities of daily living, including "walking her two grandchildren to and from school, attending church, shopping, and taking walks," which conflicted with her claim that "she was incapable of being around people without suffering from debilitating panic attacks." Id. (emphasis added). Here, by contrast, plaintiff does not allege he is incapable of social interaction, and his ability to interact with medical professionals and "leave the house to accomplish tasks" does not contradict his testimony that during manic episodes he presents with increased irritability and during depressive episodes he lacks energy. Moreover, two of the three examples that the ALJ relied upon involved plaintiff affirmatively seeking treatment: ALJs may not on the one hand discredit claimants for failure to seek treatment and on the other discredit those who do, based on their ability to interact with a medical provider. See West v. Comm'r of Soc. Sec., 2018 WL 684771, at *5 (E.D. Cal. Feb. 1, 2018) ("The Court specifically takes issue with the ALJ's discussion of [the claimant's] attendance at doctor's appointments. Clearly, going to a doctor does not demonstrate an exaggeration of symptoms.").
Third, the ALJ found plaintiff's "allegations that he was unable to work due to psychological symptoms" inconsistent with a February 2016 chart note that read: "Education: unemployed due to school." Tr. 32 (citing Tr. 606). The ALJ again mischaracterized the record. In the line above the notation cited by the ALJ, the same medical provider also noted that plaintiff had "stopped attending [college] this winter term due to worsening depression." Tr. 606. That notation is consistent with plaintiff's description of the cyclical nature of manic and depressive episodes (see Tr. 59-60), and reports from 2016 that he left school as a result of his depression. Tr. 608 ("Patient reported significant symptoms of depression that have led him to drop out of his college classes this term and are affecting his ability to function at home."); see also Tr. 404 ("unable to attend certain classes due to the severity of his symptoms"). Moreover, courts in this district have explained that limited college attendance does not undermine testimony concerning mental impairments. See Dowell v. Berryhill, No. 3:16-cv-614-SI, 2017 WL 1217158, at *6 (D. Or. Apr. 3, 2017) (finding part-time college attendance did "not contradict [a claimant's] testimony of severe mental impairments"); see also Tr. 332 (explaining plaintiff has completed "some online classes as well, but more than two classes at a time is too much").
Finally, the Commissioner points to plaintiff's testimony that he did not apply for work during the relevant period "because he believed he was not able to work while applying for disability," suggesting that plaintiff did not apply for work for reasons other than his symptoms. Def.'s Br. 7 (quotation marks omitted). The Ninth Circuit has held that an ALJ may discredit a claimant when an alleged impairment is "not the reason [the claimant] stopped working." See, e.g., Tommasetti, 533 F.3d at 1040; Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (as amended).
Those cases, however, coupled that rationale with other clear and convincing reasons not present in this case. For example, in Tommasetti, the claimant testified that "his severe diabetes was not a `disabling problem,' was controlled by medication, and was not the reason he stopped working," which undermined his testimony that diabetes was among his disabling impairments. Tommasetti, 533 F.3d at 1040. Here, by contrast, plaintiff never testified that his depression and anxiety were not disabling. Even assuming arguendo plaintiff's statement about why he did not apply for work is inconsistent, on this record "this one weak reason is insufficient to meet the `specific, clear and convincing' standard[.]" Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). As such, none of the purported inconsistencies advanced by the Commissioner were a proper basis to reject plaintiff's subjective symptom testimony.
In sum, the ALJ failed to provide a clear and convincing rationale for discrediting plaintiff's testimony. The ALJ's evaluation of plaintiff's subjective symptom testimony therefore should be reversed.
Plaintiff contends that the ALJ improperly assessed the medical opinion of treating physician, Dr. Julian. The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported by substantial evidence.
Dr. Julian first met with plaintiff for an initial psychiatric assessment in September 2013 on a referral from his primary care provider for evaluation and management of bipolar disorder. Tr. 394. Dr. Julian met with plaintiff on an approximately monthly basis through at least February 2016. See Tr. 394-410; 454-598. In March 2016, Dr. Julian submitted a medical source statement in which he opined as to plaintiff's functional limitations. Tr. 662-65. Dr. Julian noted that plaintiff had a history of three episodes of decompensation within 12 months, each of which lasted at least two weeks. Tr. 665. Dr. Julian additionally concluded that plaintiff was extremely limited in his abilities to: maintain regular attendance, get along with coworkers, and complete an eight-hour workday without additional rest periods. Tr. 664. He further opined plaintiff was markedly limited in his ability to remember procedures, maintain attention for twohour segments, and perform work without becoming distracted. Id. The Commissioner contends the ALJ supplied two permissible rationales for discounting Dr. Julian's opinion: (1) inconsistencies with treatment notes, and (2) inconsistencies with the overall medical evidence of record.
The Commissioner argues that the ALJ correctly concluded that Dr. Julian's opinion was inconsistent with the doctor's own treatment notes. Def's Br. 10 (citing Tr. 30). Inconsistency between a doctor's opinion and his treatment notes can support the rejection of a medical opinion. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009). Specifically, the Commissioner asserts that Dr. Julian's opinion conflicted with (a) the lack of evidence in the record that plaintiff had an episode of decompensation lasting two weeks in length, and (b) plaintiff's regular attendance at monthly appointments.
The ALJ correctly concluded that Dr. Julian's opinion that plaintiff experienced multiple episodes of decompensation was inconsistent with his treatment notes. Tr. 30. Dr. Julian checked a box indicating plaintiff had experienced "[t]hree episodes of decompensation within 12 months, each at least two weeks long." Tr. 665. The ALJ noted that Dr. Julian's conclusion plaintiff was "incongruent" with the doctor's treatment notes, which indicated (1) plaintiff "was not psychiatrically hospitalized" during the relevant period, and (2) plaintiff's "one noted episode of decompensation did not last two weeks." Tr. 30 (citing 345, 400, 466, 563-602). Thus, the ALJ was correct on this point.
Plaintiff argues the ALJ failed to supply a proper rationale for rejecting Dr. Julian's finding, and directs the court to the Program Operational Manual System for disability insurance ("POMS") 34132.009 on mental disorders. The POMS, as relevant here, offer internal agency guidance on assessing whether a claimant experiences an "episode of decompensation."
However, the Ninth Circuit has held the POMS do "not impose judicially enforceable duties on either [reviewing courts] or the ALJ." Carillo-Yeras v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011) (citation omitted); see also Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000) (declining to review allegations of noncompliance with internal agency manual because such a manual "does not carry the force and effect of law"). Further, at the time relevant to this appeal, 20 C.F.R. § Pt. 404, Subpt. P, App. 1, governed whether a claimant suffered from an episode of decompensation.
Id. at 12.04. (effective Aug. 12, 2015 to May 23, 2016) (emphasis added). While plaintiff offers an alternative interpretation of what constitutes an episode of decompensation and argues the "records clearly demonstrate multiple episodes of decompensation" (Pl.'s Reply 8), whether plaintiff had "episodes of decompensation" is defined by the regulations, and the ALJ as "the final arbiter with respect to resolving ambiguities in the medical evidence." Tommasetti, 533 F.3d at 1041-42 (citation omitted).
As such, the ALJ's rejection of Dr. Julian's conclusion that plaintiff experienced three episodes of decompensation was proper based on the ALJ's identification of the "incongruence" between the doctor's finding and the lack of support in the treatment notes. See Tr. 30 (citing 345, 400, 466, 563-602); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) ("When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion."). Such an internal discrepancy between Dr. Julian's opinion and the doctor's other recorded observations "is a clear and convincing reason for not relying on the doctor's opinion on" that matter. See Bayliss, 427 F.3d at 1216.
The Commissioner argues that, as the ALJ concluded, plaintiff's regular attendance at monthly appointments undermines the remainder of Dr. Julian's opined limitations. Def's Br. 10 (citing Tr. 26). The Commissioner fails to articulate how attendance at monthly appointments conflicts with Dr. Julian's opined limitation relating to plaintiff's ability to maintain attendance, interact with coworkers, remember procedures, perform work without becoming distracted, or complete a full workday, (see Tr. 664), especially given the extensive objective evidence that plaintiff consistently presented with depression and a low mood. See Tr. 454, 458, 460, 472, 564, 567-68, 571, 574, 579, 583, 586, 590, 594, 598. In other words, plaintiff's ability to regularly see his doctor while seeking mental health treatment for his impairments does not in fact conflict with Dr. Julian's opinion. See Bourgeois v. Astrue, 2011 WL 834165, at *2 (W.D. Wash. Feb. 10, 2011), adopted, 2011 WL 829258 (Mar. 3, 2011) (" But going to the doctor does not show she can work with others or handle the stresses of a normal workplace."). An ALJ may not simply cherry-pick evidence to support the conclusion that a plaintiff is not disabled; rather, the ALJ must consider the evidence as a whole. See Holohan, 246 F.3d 1207 ("[T]he ALJ selectively relied on some entries in [the claimant's] records . . . and ignored the many others that indicated continued, severe impairment.").
Finally, the Commissioner argues that the ALJ correctly concluded that Dr. Julian's opinion is inconsistent with the overall medical evidence of record. Def's Br. 11 (citing Tr. 30). The more consistent an opinion is with the evidence as a whole, the greater weight the opinion should be accorded. 20 C.F.R. §§ 404.1527(c)(4), 416.927 (c)(4). However, other than asserting Dr. Julian's opinion was "not supported by the medical evidence," the ALJ failed to consider the opinion under the appropriate standards. See 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6) (listing criteria for weighing medical opinion evidence). An ALJ errs when he assigns minimal weight to a medical opinion by "criticizing it with boilerplate language that fails to offer a substantive basis" for the ALJ's conclusion. Garrison, 759 F.3d at 1013.
In sum, although the ALJ provided a permissible rationale to reject an isolated portion of Dr. Julian's opinion regarding plaintiff's episodes of decompensation, the ALJ failed to properly reject the remainder of doctor's opinion. The court therefore should reverse the ALJ's rejection of Dr. Julian's limitations.
Plaintiff assigns error to the ALJ's evaluation of his Global Assessment of Functioning ("GAF") scores. In Garrison, the court indicated that GAF scores are relevant to the disability assessment because they are "a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Garrison, 759 F.3d at 1003 n.4. However, the court further noted that "GAF scores, standing alone, do not control determinations of whether a person's mental impairments rise to the level of a disability[.]" Id.; see also Skelton v. Comm'r of Soc. Sec., No. 06:13-cv-01117-HZ, 2014 WL 4162536, at *11 (D. Or. Aug. 18, 2014) (explaining that the fifth and most recent edition of the Diagnostic and Statistical Manual of Mental Disorders abandoned the GAF scale for several reasons, including "its lack of conceptual clarity" and "questionable psychometrics in routine practice").
Plaintiff argues the ALJ erred "by failing to consider [his] GAF scores that were indicative of a disabling mental impairment." Pl.'s Op. Br. 19-20. Plaintiff misstates the ALJ's decision. The ALJ cited to multiple GAF scores in the record and discussed the entire range of plaintiff's GAF scores in his decision. Tr. 31. The ALJ assigned little weight to the scores, reasoning they "[were] not standardized and only provide a brief glimpse at [plaintiff's] level of functioning[.]" Id. The ALJ then highlighted plaintiff's September 2013 GAF score of between 55-65 from his initial referral appointment with Dr. Julian, and noted he used the score as a baseline in reviewing "Dr. Julian's "subsequent treatment notes and when assessing the [RFC] above."
Moreover, while plaintiff disagrees with the weight the ALJ gave the scores and presents his alternative interpretation of the evidence, the ALJ's interpretation is supported by rational inferences drawn from the record. Batson, 359 F.3d at 1193 ("[T]he Commissioner's findings are upheld if supported by inferences reasonably drawn from the record . . . and if evidence exists to support more than one rational interpretation, we must defer to the Commissioner's decision[.]") (internal citations omitted). Accordingly, the ALJ did not err in this regard.
Plaintiff argues that the ALJ improperly rejected the lay witness testimony. Lay witness testimony regarding the severity of a claimant's symptoms or how an impairment affects a claimant's ability to work is competent evidence that an ALJ must take into account. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). To reject such testimony, an ALJ must provide "reasons that are germane to each witness." Rounds v. Comm'r, 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1114 (remaining citation omitted)). Further, the reasons provided must also be "specific." Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)). However, where the ALJ has provided clear and convincing reasons for rejecting the claimant's symptom testimony, and the lay witness has not described limitations beyond those alleged by the claimant, the ALJ's failure to provide germane reasons for rejecting lay testimony is harmless. Molina, 674 F.3d at 1121-22.
Mark L. submitted a third-party function report in which he reported that plaintiff's impairments adversely affect his ability to remember, complete tasks, concentrate, understand, follow instructions, and get along with others. Tr. 262. The ALJ gave Mark L.'s statement "some weight," but discounted it because it was inconsistent with medical evidence indicating that plaintiff's impairments were less severe than Mark L. reported. Tr. 31. Specifically, the ALJ relied on plaintiff's "psychological records indicating generally moderate symptoms[.]" Id.
The Ninth Circuit has held it is error for an ALJ to reject lay testimony simply because medical records fail to corroborate the testimony. See Smolen, 80 F.3d at 1289; see also Diedrich v. Berryhill, 874 F.3d 634, 640 (2017) ("a lack of support from the `overall medical evidence' is also not a proper basis for disregarding" lay testimony); but cf. Scott v. Colvin, No. 3:13-cv-00502-HZ, 2014 WL 1096200, at *6 (D. Or. Mar. 18, 2014) ("District courts in the Ninth Circuit have noted conflicting Ninth Circuit decisions regarding whether lay testimony can be properly rejected because it is unsupported or uncorroborated by objective medical evidence.") (collecting cases).
Moreover, as discussed above, the ALJ erroneously rejected many of Dr. Julian's opined limitations, which largely track Mark L.'s statements. As such, the ALJ rejected plaintiff's father's testimony in error. The ALJ's nebulous language that the father's statement conflicted with plaintiff's "psychological records indicating generally moderate symptoms" is insufficiently vague to constitute a germane reason to reject Mark L.'s testimony. See Scott, 2014 WL 1096200, at *7 (noting "that an `ALJ's general reference' to the lay testimony as not consistent with `the bulk of the medical evidence of record' was `too vague to constitute even a germane reason for discounting the statements and comments' of a lay witness").
David K. submitted a letter on behalf of plaintiff in which he reported that during manic phases, plaintiff has the energy to begin new projects but not complete them. Tr. 332. He further noted that during depressive phases, plaintiff sometimes sleeps at least 15 hours per day. Id. The ALJ gave David K.'s statement "some weight," but discounted it because it did "not indicate the claimant [was] any more limited than the [RFC] assessed" in the ALJ's decision. An ALJ's reasons for rejecting lay-witness testimony must be "specific." Mike F. v. Berryhill, No. 3:17-cv-01667-YY, 2018 WL 4896714, at *8 (D. Or. Oct. 9, 2018) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). Here, the ALJ's reasoning was vague and devoid of even a citation to the record. As such, the ALJ erred in failing to provide a legally sufficient reason for rejecting David K.'s testimony.
Plaintiff assigns error to the ALJ's step three findings. Plaintiff asserts, in merely a heading, that he "met Listing[s] 12.04, 12.06, or 12.08." Pl.'s Op. Br 20 (capitalization omitted). However, plaintiff does not explicitly argue which of those three listings he met, quote relevant language from any of the three listings, or direct the court to controlling Ninth Circuit precedent for evaluating an ALJ's step three analysis.
To meet Mental Disorder Listings 12.04, Affective Disorders; 12.06, Anxiety Related Disorders; and 12.08, Personality Disorders, a claimant must demonstrate a combination of criteria from paragraphs A, B, and/or C. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (effective Aug. 12, 2015 to May 23, 2016).
At step three, an ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment. See Lewis, 236 F.3d at 512. A boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.1990) (holding that ALJ erred by failing to consider evidence of equivalence). An ALJ, however, is only required to discuss and evaluate the evidence that supports his or her conclusion. Lewis, 236 F.3d 503 at 513. Furthermore, a disability claimant bears the burden of proving that her impairments meet or equal a listing, including that she meets or equals each element of the listing. See Tackett, 180 F.3d at 1099 ("To meet a listed impairment, a claimant must establish that he or she meets each characteristic of a listed impairment relevant to his or her claim. To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings at least equal in severity and duration to the characteristics of a relevant listed impairment[.]").
Plaintiff first argues the ALJ's finding of a mild restriction in activities of daily living ("ADLs") is erroneous because medical records "indicated several instances where [plaintiff] was incapable of basic hygiene[.]" Pl.'s Op. Br. 20. The Commissioner notes that plaintiff failed to cite "evidence that a provider found [plaintiff] incapable of basic hygiene." Def.'s Br. 13 (quotation marks omitted). The Commissioner then directs the court to treatment notes documenting "appropriate" and "fair" hygiene, as well as a notation indicating plaintiff was "well groomed." Id. (citing Tr. 463, 568, 607). In his reply, plaintiff directs the court to two medical appointments where a physician "discuss[ed] basic `adequate' hygiene" and a treatment note indicating that plaintiff's hygiene was declining. Pl.'s Reply 10 (citing Tr. 476, 652).
Although plaintiff presents his own interpretation of the medical evidence, the ALJ's finding was a rational interpretation of the record and must be upheld, especially given that "[l]isted impairments are purposefully set at a high level of severity because the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary." Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citation and quotation omitted); see also Batson, 359 F.3d at 1193.
Plaintiff next argues the ALJ's finding of only moderate difficulties in social functioning is erroneous in light of Dr. Julian's finding regarding his in ability to get along with coworkers, self-isolation and fighting with family members, explosive and emotional dispositions, and inability to tolerate stress. Pl.'s Op. Br. 20. In response, the Commissioner notes that the ALJ relied on evidence plaintiff went shopping, actively participated in group therapy, and regularly interacted with medical professionals. Again, while the evidence is arguably susceptible to more than one plausible interpretation, the ALJ's interpretation is rational and therefore must be upheld. Batson, 359 F.3d at 1193.
Finally, plaintiff argues that the ALJ's finding that he had moderate difficulties in concentration, persistence, and pace is erroneous because he "frequently had persistence issues." Pl.'s Op. Br. 21 (citing 457, 460, 578, 582, 614, 624). The ALJ, however, found plaintiff was only moderately impaired based on his pursuit of an accounting degree, Dr. Julian's evaluation of plaintiff's concentration and judgment as fair to normal, and another physician's assessment of plaintiff's attention and concentration as "good." For the reasons discussed above, this interpretation of the record is rational and therefore must be upheld. Batson, 359 F.3d at 1193.
In sum, the ALJ's step three finding is supported by substantial evidence and must be upheld. The ALJ appropriately discussed and evaluated the relevant evidence supporting his conclusion, and that evaluation was a rational interpretation of the evidence. See Lewis, 236 F.3d at 13 (affirming ALJ step three finding where ALJ "discussed and evaluated evidence supporting his conclusion"); see also Batson, 359 F.3d at 1193.
Finally, plaintiff contends the ALJ erred at step five because the hypothetical he posed to the VE failed to include all of plaintiff's limitations. The RFC reflects the most an individual can do. 20 C.F.R. §§ 404.1545, 416.945. In formulating an RFC, the ALJ must consider all medically determinable impairments, including those that are not "severe," and evaluate "all of the relevant medical and other evidence," including the claimant's testimony. Id.; SSR 96-8p, available at 1996 WL 374184. An ALJ may rely on the testimony of a VE to determine whether a claimant retains the ability to perform past relevant work at step four, or other work in the national or regional economy at step five. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The ALJ is required to include only those limitations that are supported by substantial evidence in the hypothetical posed to a VE. See id. at 1163-65. "Conversely, an ALJ is not free to disregard properly supported limitations." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). In other words, limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock, 240 F.3d at 1163-65.
Here, the ALJ improperly discredited plaintiff's testimony, portions of Dr. Julian's opinion, and the lay witness testimony. By failing to incorporate all of plaintiff's limitations into the RFC and, by extension, the dispositive hypothetical question posed to the VE, the ALJ's conclusion lacks evidentiary support. Id. at 886; see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) ("If a vocational expert's hypothetical does not reflect all the claimant's limitations, then the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.") (internal citation omitted). The case therefore should be remanded.
The decision whether to remand for further proceedings or for the immediate payment of benefits lies with the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th Cir. 2000), cert. denied, 531 U.S. 1038 (2000). The 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).
The Ninth Circuit's "credit-as-true" doctrine is "settled" and binding on this court. Garrison, 759 F.3d at 999. In conducting the "credit-as-true" analysis, the court first determines whether the ALJ committed legal error; and if so, the court must review the record and decide whether it is "fully developed, is free from conflicts and ambiguities, and all essential factual matters have been resolved." Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (as amended) (internal citation omitted). Second, the court considers whether further administrative proceedings would serve a "useful purpose." Id. at 407 (internal citation omitted). Third, if the court finds the record is fully developed and further administrative proceedings would not be useful, the court may credit the improperly discredited evidence as true and determine whether the ALJ would be required to find the claimant disabled in light of this evidence. Id. (internal citation omitted). If so, the court may remand the case for an award of benefits, although the court ultimately retains "discretion in determining the appropriate remedy." Id. at 407-08 (internal citation omitted).
Here, the ALJ failed to provide legally sufficient reasons for rejecting plaintiff's subjective symptom testimony, the bulk of plaintiff's treating physician opined limitations, and the lay witness testimony. However, there are ambiguities in the record, for example, Dr. Julian's unsupported conclusion that plaintiff experienced three episodes decompensation casts at least some doubt on the validity of the remainder of the doctor's conclusions. Moreover, the Commissioner has highlighted plaintiff's "heavy marijuana use," and directs the court to 42 U.S.C. § 423(d)(2)(c), which provides: "An individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." See also Parra v. Astrue, 481 F.3d 742, 747-48 (9th Cir. 2007) (applying the Drug Abuse and Alcoholism analysis). Given plaintiff's own testimony about the extent of his marijuana use, and the various medical providers in the record who assessed marijuana abuse, the record is not fully developed and serious doubt remains as to whether plaintiff is in fact disabled. See, e.g., Tr. 51 (hearing testimony); Tr. 608 ("marijuana use could also be impacting his mood"); Tr. 619 (plaintiff "has substance abuse issues that are [a] contributing factor to current psychiatric condition"). Remanding for further proceedings is therefore appropriate. Treichler, 775 F.3d at 1105 ("Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.").
Accordingly, the court should remand this matter for further administrative proceedings on an open record, specifically to: (1) accept or provide legally sufficient reasons for rejecting plaintiff's subjective symptom testimony; (2) conduct a psychological mental health consultation and de novo review of the of the medical opinion evidence of record; (3) accept or provide legally sufficient reasons for rejecting the lay witness testimony; and (4) conduct any further necessary proceedings.
For the reasons discussed above, the Commissioner's decision should be REVERSED and this case should be REMANDED for further proceedings.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due Friday, January 18, 2019. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
