Opinion
Case No. 16-cv-03933-BLF
03-06-2018
DAMIEN M. AINSWORTH, Plaintiff, v. NANCY A. BERRYHILL, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; REVERSING THE DENIAL OF BENEFITS; AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
[Re: ECF 22, 25]
Plaintiff Damien M. Ainsworth appeals a final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Plaintiff asks the Court to reverse the Commissioner's decision and remand for further administrative proceedings. Before the Court are the parties' cross-motions for summary judgment, which have been fully briefed.
The motions were submitted without oral argument pursuant to Civil Local Rule 16-5.
The Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion, DENIES Defendant's motion, REVERSES the denial of benefits; and REMANDS for further administrative proceedings.
I. BACKGROUND
Plaintiff was born on December 27, 1971. Administrative Record ("AR") 138. He was 39 years old on the alleged disability onset date, making him a "younger" individual under the Social Security regulations. AR 64; see also 20 C.F.R. § 404.1563(c) (defining "younger person" to be a person under the age of 50). Plaintiff attended a junior college for four years and then a state college for an additional three years, and he has past relevant work as an account information clerk and a telephone solicitor. AR 42, 59.
Plaintiff claims disability beginning May 1, 2011 due to several impairments, including bipolar disorder, a polysubstance use disorder, and a gastrointestinal condition. AR 21. After his application for benefits was denied initially and upon reconsideration, Plaintiff requested and received a hearing before an administrative law judge ("ALJ"), which was held on August 18, 2014. Id. After hearing testimony from Plaintiff, Plaintiff's mother, and a vocational expert ("VE"), the ALJ issued a written decision finding that Plaintiff was not disabled through the decision date and thus was not entitled to benefits. AR 19-33. The Appeals Council affirmed the ALJ's decision, making it the final decision of the Commissioner. AR 1-3.
II. LEGAL STANDARD
A. Standard of Review
Pursuant to sentence four of 42 U.S.C. § 405(g), district courts "have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 USC § 405(g). However, "a federal court's review of Social Security determinations is quite limited." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Federal courts "'leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.'" Id. (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)).
A court "will disturb the Commissioner's decision to deny benefits only if it is not supported by substantial evidence or is based on legal error." Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and must be more than a mere scintilla, but may be less than a preponderance." Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and citations omitted). A court "must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. (internal quotation marks and citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ's findings must be upheld if supported by reasonable inferences drawn from the record. Id.
Finally, even when the ALJ commits legal error, the ALJ's decision will be upheld so long as the error is harmless. Brown-Hunter, 806 F.3d at 492. However, "[a] reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the ALJ's error was harmless." Id. The court is "constrained to review the reasons the ALJ asserts." Id.
B. Standard for Determining Disability
"To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or combination of impairments that has lasted for more than 12 months; (3) whether the impairment meets or equals one of the listings in the regulations; (4) whether, given the claimant's residual functional capacity, the claimant can still do his or her past relevant work; and (5) whether the claimant can make an adjustment to other work." Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity ("RFC") referenced at step four is what a claimant can still do despite his or her limitations. Id. at 1160 n.5. "The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
III. DISCUSSION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of May 1, 2011. AR 21. At step two, the ALJ found that Plaintiff has the following severe impairments: "a bipolar disorder, and a polysubstance use disorder, in early remission." Id. The ALJ found that Plaintiff had not established the existence of a medically determinable abdominal or gastrointestinal impairment, or any severe physical medically determinable impairment. AR 21-22. At step three, the ALJ concluded that Plaintiff's impairments do not meet or medically equal the severity of one of the listed impairments in the regulations. AR 22-25.
Prior to making a step four determination, the ALJ found that Plaintiff retains the RFC to perform a full range of work at all exertional levels, with the following nonexertional limitations: "the claimant is limited to performing work involving no more than the simple and repetitive tasks characteristic of unskilled work and involving no more than limited contact with the public." AR 25. In formulating this RFC, the ALJ considered the opinions of all three mental health professionals of record: Dr. Gerald Bausek, Plaintiff's treating psychiatrist; Dr. Robert Liss, the agency consultant psychologist who reviewed the record at the initial determination stage; and Dr. A. Garcia, the agency consultant psychiatrist who reviewed the record at the reconsideration stage. AR 30-31. The ALJ stated that he accorded "the greatest weight" to the opinions of Drs. Liss and Garcia, and "little weight" to the opinions of Dr. Bausek. AR 31. The ALJ also considered the testimony and statements of Plaintiff and Plaintiff's mother. 26, 31.
The ALJ also considered the opinions of two agency medical consultants, Drs. A. Nasrabadi and R. Fast, regarding Plaintiff's claimed physical impairments. AR 30. Those opinions are not at issue in this appeal. --------
Based on the above RFC and the testimony of the VE, the ALJ found at step four that Plaintiff could not perform his past relevant work as an account information clerk or a telephone solicitor. AR 32. However, the ALJ concluded at step five that Plaintiff could perform other jobs that exist in significant numbers in the national economy. Id. Specifically, the ALJ relied on the VE's testimony that Plaintiff could work as a "linen room attendant," Dictionary of Occupational Titles ("DOT") 222.387-030, or a "hand packager," DOT 920.587-018. AR 33. Based on that testimony, the ALJ found that Plaintiff was not disabled. Id.
Plaintiff contends that the ALJ erred in two respects. First, Plaintiff asserts that even though the ALJ gave great weight to the opinions of the agency consultants, the ALJ omitted from the RFC a limitation found by both consultants, that is, a limitation to "remembering, understanding and carrying out 1-2 step instructions." See AR 72, 85. Plaintiff argues that the ALJ did not provide adequate reasons for omitting that limitation in favor of a less restrictive limitation to "simple and repetitive tasks." Second, Plaintiff asserts that the ALJ did not provide legally sufficient reasons for rejecting the opinions of Plaintiff's treating psychiatrist.
A. Omission of the Agency Consultants' "1-2 Step Instructions" Limitation
Plaintiff argues that the ALJ erred by rejecting the agency consultants' "1-2 Step Instructions" limitation without legally sufficient reasons. At the initial determination stage, agency consultant Dr. Liss provided the following opinion with respect to Plaintiff's mental RFC:
Capable of remembering, understanding and carrying out 1-2 step instructions with adequate concentration, persistence and pace for a normal work day/week.AR 72 (emphasis added). At the reconsideration stage, agency consultant Dr. Garcia provided the identical opinion. AR 85.
Able to interact with coworkers and supervisors and adapt to normal stresses in the work environment, but should have limited public contact.
The ALJ recited these limitations in his written decision, AR 30, found them to be supported by evidence in the record, AR 31, and stated that he had accorded the agency consultants' opinions great weight, AR 31. However, the ALJ did not include the "1-2 step instructions" limitation in the RFC. The ALJ instead articulated Plaintiff's nonexertional limitations as follows:
[T]he claimant is limited to performing work involving no more than the simple and repetitive tasks characteristic of unskilled work and involving no more than limited contact with the public.AR 25 (emphasis added).
The ALJ's limitation to "simple and repetitive tasks" is less restrictive than the agency consultants' limitation to "1-2 step instructions." See Dominguez v. Berryhill, No. 16-CV-01936-DMR, 2017 WL 3705064, at *6 (N.D. Cal. Aug. 28, 2017) ("The court notes that a limitation to one- and two-step instruction work is more restrictive than a limitation to simple, repetitive tasks."); Kimble v. Berryhill, No. 3:15-CV-01641-JE, 2017 WL 3332256, at *4 (D. Or. Aug. 4, 2017) ("[A] limitation to '1-2 step tasks' is more restrictive than a limitation to 'simple, repetitive tasks.'"). The ALJ thus effectively rejected the agency consultants' opinions. See Kimble, 2017 WL 3332256, at *4 ("In professing to accept Dr. Nicoloff's opinion, but failing to include Dr. Nicoloff's precise limitation in the RFC, the ALJ effectively rejected the doctor's opinion."). While an ALJ may reject the opinion of a non-examining physician, he must do so "by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Here, the ALJ gave no reasons for - and in fact did not even acknowledge - his rejection of the agency consultants' "1-2 step instructions" limitation. "Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The Court therefore concludes that the ALJ erred in this case by rejecting the agency consultants' "1-2 step instructions" limitation without pointing to specific evidence in the medical record justifying such rejection.
Defendant suggests that the RFC articulated by the ALJ was consistent with the opinions of Drs. Liss and Garcia. That suggestion is without merit in light of the numerous cases holding that a limitation to "simple and repetitive tasks" is less restrictive than a limitation to "1-2 step instructions." See, e.g., Dominguez, 2017 WL 3705064, at *6; Kimble, 2017 WL 3332256, at *4; Burson v. Berryhill, No. 15-CV-04991-DMR, 2017 WL 1065140, at *4 (N.D. Cal. Mar. 20, 2017); Dschaak v. Colvin, No. 3:13-CV-02127-MA, 2015 WL 181803, at *5 (D. Or. Jan. 14, 2015).
Defendant next argues that any error in rejecting the "1-2 step instructions" limitation without explanation was harmless, because Dr. Bausek's treatment notes showed that Plaintiff's symptoms improved after Drs. Liss and Garcia rendered their opinions. The Court understands Defendant to be arguing that even if the "1-2 step instructions" limitation was appropriate at the time the agency consultants rendered their opinions. the less restrictive "simple and repetitive tasks" limitation was more appropriate when the ALJ rendered his decision in light of Dr. Bausek's treatment notes post-dating the agency consultants' opinions. "A reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the ALJ's error was harmless." Brown-Hunter, 806 F.3d at 492. The court is "constrained to review the reasons the ALJ asserts." Id. While he certainly discussed Dr. Bausek's treatment notes, the ALJ did not cite the treatment notes as a reason for rejecting the agency consultant's opinions. Accordingly, the treatment notes do not provide a basis for finding harmless error here.
Defendant's reliance on Madison v. Berryhill, 676 F. App'x 633 (9th Cir. 2017), is misplaced. In Madison, the Ninth Circuit found harmless error where the ALJ rejected a particular physician's opinion without explanation, concluding that because the claimant saw the physician only twice, and the ALJ thoroughly discussed other medical evidence showing that the claimant thereafter improved and stabilized, the ALJ's error "was inconsequential to the ultimate non-disability determination." Id. at 634. In the present case, the record does not suggest that the ALJ implicitly rejected the agency consultants' opinions based on Dr. Bausek's subsequent treatment notes. To the contrary, the ALJ indicated that he fully credited the opinions of Drs. Liss and Garcia. AR 29-31.
Moreover, the ALJ's rejection of the agency consultants' "1-2 step instructions" limitation cannot be considered inconsequential to the ultimate non-disability decision here. Inclusion of that limitation in the RFC would have indicated that Plaintiff is restricted to Reasoning Level 1, while the "linen room attendant" and "hand packager" jobs identified by the VE require Reasoning Level 3 and Reasoning Level 2, respectively. See DOT 222.387-030 (linen room attendant); DOT 920.587-018 (hand packager); Racette v. Colvin, No. CV 14-8917 AGR, 2015 WL 6957973, at *4 (C.D. Cal. Nov. 10, 2015) (recognizing that "linen room attendant" requires reasoning Level 3 and "hand packager" requires Reasoning Level 2).
The DOT describes the requirements for each occupation listed therein, including "the reasoning ability required to perform the job, ranging from Level 1 (which requires the least reasoning ability) to Level 6 (which requires the most)." Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (citing DOT, App. C (4th ed. 1991), 1991 WL 688702); see also Rounds, 807 F.3d at 1002. Where there is a conflict between the Reasoning Level reflected in a claimant's RFC and the Reasoning Level required to perform a job identified by the VE, that conflict must be resolved by the ALJ before a court may determine whether the ALJ's decision is supported by substantial evidence. Zavalin, 778 F.3d at 846-48 (remanding so that ALJ could resolve conflict between RFC corresponding to Reasoning Level 2 and jobs identified by the VE which required Reasoning Level 3); Rounds, 807 F.3d at 1003-04 (remanding so that ALJ could resolve conflict between RFC corresponding to Reasoning Level 1 and jobs identified by the VE which required Reasoning Level 2). Thus if the "1-2 step instructions" limitation had been included in the RFC, the ALJ could not have relied on the jobs of "linen room attendant" and "hand packager" to make a non-disability finding without explaining how a claimant limited to Reasoning Level 1 could perform jobs requiring Reasoning Levels 2 or 3.
Accordingly, the Court concludes that the ALJ erred in rejecting the agency consultants' "1-2 step instructions" limitation without explanation and that the error was not harmless.
B. Rejection of Treating Psychiatrist's Opinion
Plaintiff also argues that the ALJ erred by rejecting the opinions of Plaintiff's treating psychiatrist, Dr. Bausek, without legally sufficient reasons. Dr. Bausek completed a Mental Medical Source Statement on December 4, 2013, diagnosing Plaintiff with Bipolar Disorder and indicating that he suffers from numerous limitations ranging from "Mild" to "Marked" in his ability to perform work-related functions. AR 274-77. Dr. Bausek stated that these limitations impair Plaintiff's "ability to function and work," and would result in Plaintiff missing work more than four days per month. Id. On July 16, 2004, Dr. Bausek handwrote a note on the bottom of his original Mental Medical Source Statement stating "No significant changes since 12/4/13." AR 493. The ALJ accorded Dr. Bausek's opinions "little weight" and did not include significant limitations reflected in Dr. Bausek's opinions in the RFC. AR 31.
"Generally, the opinion of a treating physician must be given more weight than the opinion of an examining physician, and the opinion of an examining physician must be afforded more weight than the opinion of a reviewing physician." Ghanim, 763 F.3d at 1160. "If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record, it will be given controlling weight." Id. (internal quotation marks, citation, and brackets omitted). If the treating physician's opinion is contradicted by the opinion of another physician, the ALJ may reject the treating physician's opinion but only based upon "specific and legitimate reasons that are supported by substantial evidence." Id. (internal quotation marks and citation omitted).
The ALJ gave four reasons for rejecting Dr. Bausek's opinions, finding that they are: (1) based on Plaintiff's subjective complaints, which the ALJ found to be not entirely credible; (2) contradicted by Dr. Bausek's own treatment notes; (3) contradicted by Plaintiff's acknowledged daily activities; and (4) less well-supported by the objective medical evidence than the opinions of Drs. Liss and Garcia. AR 31. As discussed below, the first and fourth reasons do not provide sufficient bases for rejecting the opinions of Plaintiff's treating psychiatrist, but the second and third reasons do constitute specific and legitimate reasons, supported by substantial evidence in the record, for discounting Dr. Bausek's findings.
(1) Plaintiff's Subjective Complaints
"An ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citation omitted). This rule of law does not justify the ALJ's rejection of Dr. Bausek's opinions on this record, however. The ALJ found that "the claimant's statements concerning the intensity, persistence, and limiting effects of [his] symptoms are not entirely credible." AR 27. However, that finding was based in large part on the ALJ's determination that Plaintiff's hearing testimony was not credible because it conflicted with Plaintiff's statements as recorded in Dr. Bausek's treatment notes, which the ALJ apparently accepted. For example, the ALJ did not credit Plaintiff's testimony that his 50-60 pound weight loss was due to inability to eat because of gastrointestinal problems, pointing out that Plaintiff told Dr. Bausek that he was exercising and dieting to lose weight. AR 27. The ALJ also did not credit Plaintiff's testimony that he could not work due to medication side effects, noting that Plaintiff told Dr. Bausek that he was having little or no trouble with side effects. Id. Having credited Plaintiff's statements to Dr. Bausek in order to discount Plaintiff's hearing testimony, the ALJ could not logically find those same statements to Dr. Bausek to be so lacking in credibility as to undermine Dr. Bausek's opinions.
Moreover, it is not at all clear from this record that Dr. Bausek's opinions were based on Plaintiff's self-reporting. While the ALJ stated that Dr. Bausek's Mental Medical Source Statement was based on "claimant reported symptoms," AR 30, nothing in the Mental Medical Source Statement suggests that when Dr. Bausek was asked to identify "psychological conditions and/or symptoms" affecting Plaintiff, Dr. Bausek did so based solely (or even largely) on Plaintiff's self-reporting, AR 274. Dr. Bausek checked boxes for "Depression," "Memory deficits," "Easy distractibility," and other conditions and symptoms without indicating whether those findings were based on clinical observation, objective medical evidence, Plaintiff's subjective complaints, or some combination thereof. Dr. Bausek also wrote a list of "additional symptoms and findings on mental status examination," including "manic or hypomanic sxs, rapid speech, flight of ideas, high impulsivity," which clearly were not based on Plaintiff's self-reporting. AR 274 (emphasis added).
Accordingly, rejection of Dr. Bausek's opinions based on an adverse credibility finding was in error. However, as discussed below, the ALJ proffered other reasons for rejecting Dr. Bausek's opinions which are supported by substantial evidence in the record.
(2) Treatment
"A conflict between treatment notes and a treating provider's opinions may constitute an adequate reason to discredit the opinions of a treating physician or another treating provider." Ghanim, 763 F.3d at 1161.
The ALJ characterized many of Dr. Bausek's treatment notes as conflicting with the significant limitations set forth in Dr. Bausek's Mental Medical Source Statement. AR 27-29. The ALJ found those treatment notes to "demonstrate the claimant's repeatedly benign clinical presentation, and show the claimant reporting do [sic] doing well on prescribed medications with no significant side effects despite the claimant's several relapses into methamphetamine abuse during his course of treatment and despite the claimant's extremely frequent acknowledged noncompliance with his prescribed medication regimen." AR 31.
Plaintiff does not challenge the ALJ's finding of conflict between Dr. Bausek's treatment notes and opinions. Plaintiff instead argues that the ALJ improperly rejected Dr. Bausek's opinions based on Plaintiff's noncompliance with treatment. Pl.'s Motion at 14, ECF 22. However, a careful reading of the ALJ's decision reveals that the ALJ's references to noncompliance with treatment were only in the context of noting how well Plaintiff was doing despite noncompliance. AR 31. The ALJ found that Dr. Bausek's notes, reflecting that Plaintiff was doing well even when he did not stick to his treatment plan, undermined Dr. Bausek's opinions that Plaintiff had significant functional limitations.
Having reviewed the treatment notes identified by the ALJ, including those at Exhibits 2F, 3F, 4F, and 9F, the Court concludes that the ALJ's finding of conflict between Dr. Bausek's treatment notes and opinions constitutes a specific and legitimate reason, supported by substantial evidence in the record, for rejecting Dr. Bausek's opinions.
(3) Daily Activities
A conflict between a treating physician's opinion and the claimant's daily activities may justify rejecting the treating physician's opinion. Ghanim, 763 F.3d at 1162.
The ALJ provided a thorough summary of Plaintiff's acknowledged daily activities, which include: performing his own grooming and self-care; taking care of the family dog; preparing daily meals; performing daily household chores such as laundry, vacuuming, and yard work; driving; shopping; walking; watching television; and socializing. AR 28. The ALJ also noted that Plaintiff was able to work for several months after his alleged disability onset date, maintain a serious relationship with a girlfriend, look for work, and exercise daily. Id. The ALJ concluded that these daily activities were inconsistent with the significant limitations indicated by Dr. Bausek's opinions. AR 28, 31. Plaintiff does not challenge this reason proffered by the ALJ.
The Court concludes that the ALJ's finding of conflict between Plaintiff's acknowledged daily activities and Dr. Bausek's opinions constitutes a specific and legitimate reason, supported by substantial evidence in the record, for rejecting Dr. Bausek's opinions.
(4) Record as a Whole
The ALJ's fourth and final reason for rejecting Dr. Bausek's opinions was his conclusion that Dr. Bausek's opinions were "less well-supported by the objective medical evidence present in the record and outlined above and by the evidence present in the record as a whole than the well supported medical opinions of state agency medical consultants Dr. Garcia and Dr. Liss." AR 31. "[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while . . . criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Garrison, 759 F.3d at 1012-13. The Court concludes that the ALJ's general statement regarding the record as a whole does not constitute a specific and legitimate reason, supported by substantial evidence, for rejecting Dr. Bausek's opinions. However, as discussed above, the ALJ proffered other reasons for that rejection which are supported by substantial evidence in the record.
C. Appropriate Remedy
Having concluded that the ALJ erred in rejecting the agency consultants' "1-2 step instructions" limitation without explanation, and that the error was not harmless, the Court must determine an appropriate remedy. Plaintiff requests that the case be remanded to the Commissioner for further administrative proceedings. The Court agrees that remand for further proceedings is appropriate here. The record has not been fully developed as to the ALJ's reasons for rejecting the agency consultant's "1-2 step instructions" limitation or the ways in which inclusion of that limitation would affect the ALJ's disability determination.
Accordingly, the Court will grant in part and deny in part Plaintiff's motion for summary judgment and will deny Defendant's cross-motion for summary judgment. Pursuant to sentence four of 42 U.S.C. § 405(g), the Court will reverse the denial of benefits and remand for further administrative proceedings consistent with this order. 42 U.S.C. § 405(g) (sentence four) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.").
IV. ORDER
(1) Plaintiff's motion is GRANTED IN PART AND DENIED IN PART;Dated: March 6, 2018
(2) Defendant's motion is DENIED;
(3) The denial of benefits is REVERSED; and
(4) The matter is REMANDED to the Commissioner for proceedings consistent with this order.
/s/_________
BETH LABSON FREEMAN
United States District Judge