JOHN L. WEINBERG, Magistrate Judge.
Type of benefits sought:
Plaintiff's:
Principal Disabilities Alleged by Plaintiff:
Disability Allegedly Began: September 11, 2009 Principal Previous Work Experience: Material Handler Last worked: has not worked since alleged onset Education Level Achieved by Plaintiff: at least a high school education
Overview. This is the second time this case has cycled through this court.
Following an initial administrative denial of Plaintiff's claims in 2011, Plaintiff sought relief in this court. The court reversed and remanded to the Commissioner for further proceedings. The ALJ conducted a second hearing, and issued a second decision which closely tracked the first decision. The ALJ found the same Residual Functional Capacity (RFC); found that Plaintiff could perform the same jobs exising in the national economy; and again denied benefits. Plaintiff has again sought review in this court.
On its first review, this court reversed and remanded because the ALJ had not stated legally valid reasons for rejecting various evidence relating to Plaintiff's mental impairments. Following the second hearing, the ALJ made essentially the same findings as to the same evidence; but augmented in some respects his statement of reasons for those findings. Plaintiff again challenges the validity of those reasons, while the Commissioner defends them. The evidence at issue all relates to Plaintiff's mental impairments. There apparently is no issue as to the ALJ's findings concerning Plaintiff's physical impairments, and their effect upon his RFC. The focus of the case this time, therefore, is the validity of the ALJ's revised statements of reasons for giving little or no weight to specific items of evidence relating to Plaintiff's mental impairments.
The prior proceedings in the case, to date, are summarized below.
1. First Hearing Before ALJ Robert P. Kingsley:
2. Action by Appeals Council Following First ALJ Decision
3. Proceedings in this Court Upon Prior Review
4. Second Hearing Before ALJ Robert P. Kingsley:
In his second decision, the ALJ has again failed to state specific and legitimate reasons for attaching little or no weight to the opinions of Drs. Morris, Bragg, Trowbridge, Fligstein and Mee. However, in support of his decision to give little weight to the opinions expressed by NP Barbara Fraley, a lay witness, the ALJ has stated germane reasons specific to that witness. The ALJ has also amply documented his finding that Plaintiff's own statements are entitled to very little credibility.
The opinions of the five doctors in question, together with the balance of the record, establish that Plaintiff is disabled. The administrative record is complete, and no purpose would be served by ordering any further administrative proceedings. The court should exercise its discretion to reverse, remand, and order the payment of benefits.
Despite the protracted history of this case and the voluminous administrative record of over 1660 pages, the issues before this court are relatively simple:
Judge Tsuchida, in his R & R, set forth in some detail the tests and interviews conducted by each of the five doctors at issue; the opinions and conclusions they reached; the ALJ's stated reasons in his first decision for giving little or no weight to those opinions and conclusions; the legal standards by which the ALJ's reasons are to be measured; and why those reasons were not sufficient. The court and parties can and should refer to Judge Tsuchida's R&R, at the pages cited, for this crucial material. It will not be fully repeated in what follows, but only briefly summarized.
The material set forth below focuses primarily upon a description of any new or revised reasons the ALJ has added in his second decision; and recommendations as to whether those reasons, as revised, are now legally sufficient.
Dr. Morris, Plaintiff's treating psychologist, administered a battery of objective psychological tests, in addition to interviewing Plaintiff. She diagnosed Plaintiff with schizoaffective disorder, depressed type, and assigned him a Global Assessment of Functioning score of 30. AR 693. In his first decision, the ALJ did not give any reasons to reject Dr. Morris's clinical findings or functional assessment. The ALJ did challenge whether GAF scores generally are particularly meaningful or helpful. He also found that the Plaintiff's score is unreliable because his statements to Dr. Morris had little credibility.
The R&R found the ALJ had not stated specific, legitimate reasons for rejecting Dr. Morris's opinions. Lester v. Chater, 81 F.3d 821, 830 (1996). First, her opinions, including her determination of his GAF level, were based upon far more than Plaintiff's subjective statements to her. They were also based upon the battery of tests she administered, the mental status exams she conducted, and other facts. This led to Dr. Morris's conclusions that Plaintiff functions at a chronically low level, has difficulty coping with the requirements of everyday living, and navigating complex systems. Second, contrary to the ALJ's sweeping dismissal of GAF scores generally, Ninth Circuit cases have held that GAF scores are relevant evidence of a claimant's ability to function mentally. Garrison v. Colvin, 759 F.3d 995, 1003, n. 4 (9th Cir. 2014).
In his second decision, the ALJ stated some additional reasons for rejecting Dr. Morris's opinions and conclusions. AR 1003-04. The court should find, however, that these reasons add little or nothing of value to the reasons stated in the first decision.
The ALJ deprecated Dr. Morris's opinions because they were given in a therapeutic context, rather than as an assessment of functionality in the workplace. This novel argument is directly contrary to the fact that the opinions of treating physicians are given the greatest weight — greater than that given to the opinions of examining or reviewing physicians. Lester, 81 F.3d at 830. The ALJ again emphasizes the unreliability of Plaintiff's statements to Dr. Harris and to others, including statements made after Dr. Harris's report. "But an ALJ does not provide clear and convincing reasons for rejecting an examining physician's opinion by questioning the credibility of the patient's complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008). The ALJ emphasized this fact in his first decision, which the court has held did not state legitimate reasons for rejecting Dr. Harris's opinions. The ALJ's second decision adds little or nothing in this respect. The ALJ also points out that Plaintiff stopped treatment with Dr. Harris shortly after her report was written, "which prevented Dr. Morris from gaining a better understanding of the claimant's functioning. . . ." AR. 1003. But the ALJ does not specify what information came out later which might have caused Dr. Morris to change her view, or which might provide the ALJ a legitimate basis for rejecting Dr. Morris's views.
In sum, the ALJ's second decision does not cure the failure of his first decision to state specific legitimate reasons for rejecting Dr. Morris's opinions and conclusions.
Dr. Bragg tested Plaintiff in March of 2010, and found his condition "very severe" on scales for depression, anxiety and hopelessness. He found that Plaintiff ". . . does not appear capable of working at the present time due to the presence of significant psychiatric symptoms, in spite of the use of multiple medications." AR 505. He assigned Plaintiff a GAF score of 35. AR 507. (See the R&R and Dr. Bragg's report for a more complete statement of his findings).
Dr Trowbridge examined Plaintiff in January of 2010. He diagnosed schizoaffective disorder, and found marked limitations in a number of respects, including the ability to maintain appropriate behavior in a work setting. AR 910. He found Plaintiff to be chronically mentally ill, and assigned a GAF score of 45. AR 909.
The ALJ, in his first decision, rejected the opinions of these doctors because they relied heavily on the subjective reports of symptoms and limitations provided by the claimant, and because the totality of the evidence is inconsistent with this opinion. AR 19-20. The R&R ruled these were not specific and legitimate reasons. Much of the evidence on alleged mental impairments will be based upon the patient's subjective reporting. But in addition, these doctors also based their opinions on other factors, including mental status examinations, testing, observations, and their own professional judgment. AR 503-5, 909-921. Also, Dr. Bragg's report indicates he was well aware that Plaintiff's statements were highly suspect. AR 502. In addition, the ALJ's invocation of "the totality of the evidence" is not sufficiently specific to support rejection of these opinions.
In his second decision, the ALJ stated that Dr. Bragg's opinions and conclusions were "tentative;" and that Dr. Bragg had not been aware of the nature or extent of Plaintiff's misstatements of fact, and lack of credibility. AR 1002. As to the "tentative" nature of Dr. Bragg's findings, he did include some "rule out" portions of his diagnosis, including PTSD, alcohol dependence, and agoraphobia. AR 506. But the ALJ did not include any of these in Plaintiff's list of impairments. There was nothing tentative about the other portions of Dr. Bragg's diagnosis. The "rule out" portions of the diagnosis have no relevance as Plaintiff is disabled by virtue of the impairments diagnosed without any qualification. The ALJ's emphasis in the second decision upon Plaintiff's lack of credibility is basically a reprise of the reasons which he presented in first decision, and which the court rejected.
The ALJ's second decision addresses Dr. Trowbridge's only briefly. AR 1004. The ALJ's additional reasons are virtually identical to those he states for Dr. Bragg's report, and similarly fail to state specific legitimate reasons.
In sum, the ALJ's second decision does not cure the failure of his first decision to state specific and legitimate reasons for rejecting the opinions and conclusions of Drs. Bragg and Trowbridge.
These state agency psychologists reviewed the record. Dr. Fligstein concluded that Plaintiff was "moderately limited" in many aspects relating to his ability to work. AR 76. But she opined, "Claimant should work where he is able to receive adequate breaks to reduce stress that might interfere with his [concentration, persistence and pace]." AR 89. Dr. Mee stated essentially the same opinion. AR 104, 117.
The ALJ did not include, in the RFC, any specific requirement for "breaks." The ALJ rejected the opinions of Drs. Fligstein and Mee that Plaintiff's impairments added a requirement for any breaks other than those "customary." The ALJ's reasons in his first decision were that the opinions were made without benefit of more recent evidence; and the doctors' concern is addressed by the RFC formulated by the ALJ, which limits Plaintiff to simple, routine and repetitive tasks with only one or two steps, with no tasks requiring a manufacturing style production pace. AR 20-21. The R&R found these reasons were not specific and legitimate. The ALJ had not identified what more recent evidence was inconsistent with the doctors' opinions.
In his second decision, the ALJ added just one new reason for rejecting these doctors' opinions: "Both opinions on breaks are somewhat vague on whether the claimant would require more than the customary breaks generally allowed." AR 1005. But this is not a specific and legitimate reason for rejecting the opinion of these two doctors that Plaintiff's impairments impose a specific need for work breaks. In the absence of supporting evidence, the ALJ may not assume that "customary breaks generally allowed" would meet this need.
In brief summary, the ALJ's second decision did state germane reasons, specific to this witness, for rejecting the opinions of NP Fraley. Turner v. Comm'r of Soc.Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 2010). The standard for rejecting the opinions of a lay witness, of course, is lower than that for medical opinions. The ALJ points out that NP Fraley did not have available to her extensive evidence of plaintiff's ability to perform many functions; and the evidence that NP Fraley relied upon many misrepresentations of fact by Plaintiff. AR 996-97. This was sufficient.
The ALJ, in his second decision, has amply documented his finding that Plaintiff's statements are entitled to very limited credibility. AR 989-94. As discussed above, however, that poor credibility does not provide a specific and legitimate reason for rejecting the opinions and conclusions of the five doctors. See Ryan, 528 F.3d at 1199-1200.
Because the ALJ has again not stated specific and legitimate reasons for rejecting the opinions of the five doctors, this court must again reverse, and remand the case. Remaining for decision is whether the court should order the payment of benefits, or should direct a third round of administrative proceedings. This choice of remedy is within the discretion of the court. Sprague v. Bowen, 812 F.2d 1226, 1232 (9
Id.
Here, the testimony of these five doctors, if credited, would establish that plaintiff's mental impairments, along with his physical impairments, prevent him from performing substantial gainful employment. Despite a prior decision, which was reversed, a second hearing on remand, and a second ALJ decision, the ALJ has still failed to state specific and legitimate reasons for rejecting the opinions of these doctors. The administrative record is fully developed, and no further proceedings are necessary to develop that record. There is therefore no persuasive reason to remand this case for further administrative proceedings, and there are strong reasons not to do so. A remand with directions to pay benefits is the appropriate remedy. Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9
For the foregoing reasons, the Court recommends that the ALJ's most recent decision in this case be REVERSED, that the case be REMANDED, and that the Commissioner be DIRECTED TO PAY BENEFITS. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, must be filed with the Clerk and served upon all parties to this suit no later than fourteen (14) days after the date on which this Report and Recommendation is signed. If no timely objections are filed, the Clerk shall note this matter for the earliest Friday after the deadline for objections, as ready for the Court's consideration. Failure to file objections within the specified time may affect the parties' right to appeal. If objections are filed, any response is due within fourteen (14) days after being served with the objections. A party filing an objection must note the matter for the court's consideration fourteen (14) days from the date the objection is filed and served. Objections and responses shall not exceed twelve pages.
