JAMES P. DONOHUE, Magistrate Judge.
Plaintiff Bradley David Tucker appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be REVERSED and REMANDED.
At the time of the administrative hearing, plaintiff was a 22 year old man with a high school education. Administrative Record ("AR") at 51. His past work experience includes employment as a fast food worker. AR at 52, 86. Plaintiff was last gainfully employed in February 2008. AR at 280.
On June 29, 2010, plaintiff filed a claim for SSI payments. AR at 185-91. Plaintiff asserts that he is disabled due to bipolar disorder, obsessive compulsive disorder, depression, anxiety, and hearing loss. AR at 106.
The Commissioner denied plaintiff's claim initially and on reconsideration. AR at 94-116. Plaintiff requested a hearing which took place on January 10, 2012. AR at 41-93. On April 27, 2012, the ALJ issued a decision finding that plaintiff was disabled from June 28, 2010 through July 31, 2011, but that as of August 1, 2011, plaintiff was not disabled because he had medical improvement that impacted his ability to work and thus could perform a specific job existing in significant numbers in the national economy. AR at 16-39. Plaintiff's administrative appeal of the ALJ's decision was denied by the Appeals Council, AR at 1-5, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On August 8, 2013, plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. No. 1.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:
Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).
As the claimant, Mr. Tucker bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On April 27, 2012, the ALJ issued a decision finding the following:
AR at 23-35.
The principal issues on appeal are:
Dkt. No. 16 at 1.
ALJs are obligated to consider the opinions of non-examining state agency physicians that relate to the nature and severity of an impairment, or whether a claimant meets or equals a listing. 20 C.F.R. §§ 404.1527(f)(2)(ii), 416. 927(f)(2)(ii). These opinions, however, are entitled to less weight than treating or examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal citation omitted). An ALJ must evaluate the opinion of a nonexamining source, and must explain the weight she assigns it. See SSR 96-6p.
Dr. Asher's opinion is the only medical opinion in the record regarding plaintiff's functioning after August 1, 2011. He reviewed the entire medical record and heard plaintiff's testimony during the hearing. AR at 33. He testified that until August 1, 2011, plaintiff met Listings 12.04 for Affective Disorders and 12.06 for Anxiety Related Disorders. AR at 74. Dr. Asher opined that during summer 2011, plaintiff's symptoms improved, his restrictions in activities of daily living became mild, his impairments in concentration persistence and pace became mild to moderate, but his social impairment remained marked. AR at 76. Based on plaintiff's testimony that he experiences three bad days a week, Dr. Asher opined that plaintiff had an aggregate of two episodes of decompensation. AR at 76-77. Dr. Asher further opined that even if plaintiff's improvement continued, he probably would continue to have "a small handful of days each month so bad that he wouldn't be able to make it out [of his] house."
The ALJ gave "some weight" to Dr. Asher's opinions related to the time period after August 1, 2011:
AR at 33 (emphases added).
Plaintiff contends that the ALJ failed to cite substantial evidence in support of her decision to discount Dr. Asher's opinions. Plaintiff highlights Dr. Asher's opinion that plaintiff would continue have a few days each month where he would not be able to leave the house. In response, the Commissioner acknowledges that, contrary to the ALJ's finding, Dr. Asher offered no opinion that plaintiff could maintain workplace attendance. The Commissioner nevertheless argues that this error was harmless because the ALJ found that "Dr. Asher's testimony that Plaintiff would have `three' or `a handful' of days each month where he would not be able to make it out of the house was inconsistent with Dr. Asher's own symptom improvement." Dkt. No. 17 at 10 (citing Tr. 33) (emphasis added).
The Court agrees with plaintiff that the ALJ erred. The Commissioner incorrectly argues that the ALJ discounted Dr. Asher's testimony that plaintiff would have a handful of days each month where he would be unable to leave his house. In fact, the ALJ offered no discussion of that opinion by Dr. Asher. Rather, the ALJ discounted Dr. Asher's opinion that plaintiff had two "aggregate" episodes of decompensation because he based this finding on plaintiff's testimony that plaintiff had three bad days per week.
The ALJ's failure to consider Dr. Asher's opinion that plaintiff would be unable to leave his house three days a month was error. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("The ALJ must consider all medical opinion evidence") (citing 20 C.F.R. § 404.1527(b)); SSR 96-8p ("If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted."); Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) ("The Commissioner may reject the opinion of a nonexamining physician by reference to specific evidence in the medical record."). This error was harmful because the ALJ failed to incorporate Dr. Asher's opinion into the hypothetical she posed to the VE. See Thomas, 278 F.3d at 956 (a hypothetical posed to a VE must include all of the claimant's functional limitations supported by the record); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (a VE's testimony based on an incomplete hypothetical lacks evidentiary value to support a finding that a claimant can perform jobs in the national economy).
As discussed below, remand for further administrative proceedings is the appropriate remedy for the ALJ's failure to properly consider Dr. Asher's opinions, particularly his opinion that plaintiff would continue to be unable to leave his house a handful of days per month due to his impairments. On remand, the ALJ should reassess Dr. Asher's opinions and, as necessary, revise plaintiff's RFC and proceed with steps four and five.
The ALJ found that from June 28, 2010 through July 31, 2011, plaintiff's statements concerning the intensity, persistence, and limiting effects of his alleged symptoms were "generally credible." AR at 28. Beginning August 1, 2011, however, the ALJ found that plaintiff's statements regarding his alleged symptoms were not fully credible because the record reflected only sporadic mental health treatment and plaintiff did not seek out free or low-cost treatment options; plaintiff's impairments improved with treatment as of August 1, 2011; plaintiff's daily activities were inconsistent with his allegations of disabling limitations beginning on August 1, 2011, including increased interaction with friends. AR 31-32.
Plaintiff argues the ALJ erred by failing to provide clear and convincing reasons for discounting his credibility. Specifically, he contends that it was improper for the ALJ to rely on his frequency of treatment because there was little change from the frequency during the period when the ALJ found plaintiff credible and, and because he offered reasonable explanations for not treating more frequently and there is no evidence that he was aware of free or low-cost treatment options. He also argues that his symptom improvement did not mean he was employable and Dr. Asher testified that despite this improvement, "things are still really tough for him." AR 75; see also AR 76-81 (Dr. Asher's testimony regarding plaintiff's continued difficulties). Finally, plaintiff contends that it was erroneous for the ALJ to rely on his activities of daily living because they were not significantly different from the time period when the ALJ found him disabled, and that substantial evidence does not support the ALJ's finding that he had increased interactions with friends.
Because this case is being remanded for reconsideration of the medical evidence, and credibility determinations are inescapably linked to conclusions regarding medical evidence, 20 C.F.R. § 404.1529, the Court reverses the ALJ's credibility finding as to the time period after August 1, 2011, and remands the issue. After re-evaluating the medical evidence, the ALJ should reassess plaintiff's testimony, and provide clear and convincing reasons for rejecting it should such a conclusion be warranted. The Court notes the following to guide the ALJ in her reconsideration of plaintiff's credibility. First, the ALJ should reconsider whether the frequency of plaintiff's mental health treatment undermines the severity of his symptom testimony in light of the frequency of treatment during the period when the ALJ found plaintiff credible. Similarly, in determining whether plaintiff's daily activities are inconsistent with his statements regarding the severity of his symptoms and limitations, the ALJ should consider whether plaintiff's daily activities materially changed from the time when the ALJ found him to be credible. Second, the Court finds that plaintiff's failure to seek out free or low-cost mental health treatment does not undermine the credibility of his testimony regarding the severity of his symptoms because there is no evidence that he was aware such options existed. Third, the ALJ should consider whether the degree of improvement indicated by the medical evidence contradicts plaintiff's testimony regarding his improvements. Fourth, although plaintiff reported having "a lot going on with his friends" in September 2011, AR 319, there is no evidence that these activities were in person; indeed, the Court has found no evidence in the record from the relevant period that contradicts plaintiff's testimony that essentially all of his friends are online. This may impact the ALJ's credibility determination.
Plaintiff contends the ALJ improperly found he could perform jobs in the national economy because the hypothetical questions posed to the VE did not reflect a comprehensive RFC. In making this argument, plaintiff merely reiterates his arguments that the ALJ erred in assessing Dr. Asher's opinions and rejecting his testimony. As the Court has already addressed these arguments and found that remand is appropriate, it need not specifically consider plaintiff's step five arguments.
Plaintiff asks the Court to remand for an immediate award of benefits. The Court has discretion to remand for further proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). As noted above, the Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey, 298 F.3d at 1076. Here, the Court finds that there are outstanding issues that must be resolved because the VE did not address a hypothetical including all of plaintiff's alleged limitations and the limitations opined by Dr. Asher. See Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003) ("In cases where the vocational expert has failed to address a claimant's limitations as established by improperly discredited evidence, we consistently have remanded for further proceedings rather than payment of benefits.") (quoting Harman, 211 F.3d at 1180). Accordingly, the Court declines to remand for an award of benefits and instead remands for further proceedings.
For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court's instructions. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within
