Opinion
For Phillips M Williams III, Plaintiff: Jimmy Ogbonna Ewenike, LEAD ATTORNEY, Jimmy O Ewenike Law Offices, Fullerton, CA.
For Carolyn W Colvin, Acting of Social Commissioner of Security Admin., Defendant: Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA; Assistant U.S. Attorney SA-CV, AUSA - Office of U.S. Attorney, Santa Ana, CA; Tina R Saladino, SAUSA - Office of U.S. Attorney, San Francisco, CA.
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint on March 13, 2013, seeking review of the Commissioner's denial of his application for Supplemental Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on March 10, 2014. Thus, this matter now is ready for decision.
As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record (" AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUES
1. Whether the Administrative Law Judge (" ALJ") properly found that plaintiff's condition failed to meet or equal the requirements of Listing 12.04 (Affective Disorders). (Jt. Stip. 9-26.)
2. Whether the ALJ properly assessed plaintiff's credibility. (Jt. Stip. 26-44.)
3. Whether the ALJ properly evaluated the medical evidence. (Jt. Stip. 44-61.)
4. Whether the ALJ properly determined plaintiff's residual functional capacity (" RFC"). (Jt. Stip. 61-65.)
5. Whether the ALJ properly concluded plaintiff could perform his past relevant work. (Jt. Stip. 65-68.)
DISCUSSION
I. Reversal is warranted based on the ALJ's evaluation of the medical evidence .
Plaintiff maintains the " reasons the ALJ gave for rejecting [treating psychiatrist Bruce Appelbaum, M.D.'s (" Dr. Appelbaum")] opinions are neither clear nor convincing." (Jt. Stip. 46.)
In evaluating medical opinions, the Ninth Circuit distinguishes among three types of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians (who examine but do not treat), and (3) non-examining physicians (who neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Id. Although a treating physician's opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (as amended), " [t]he treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § § 404.1527(d)(2) and 416.927(d)(2). When a treating or examining physician's opinion is not contradicted by another physician, it may only be rejected for " clear and convincing" reasons. Lester, 81 F.3d at 830. Where, as in this case, the treating physician's opinion is contradicted, it may not be rejected without " specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830-31; see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
From April 2, 2009 through May 6, 2011, psychiatrist Dr. Appelbaum treated plaintiff for his mental impairments on a monthly basis. (AR 482.) On May 2, 2011, Dr. Appelbaum completed a Mental Disorder Questionnaire form on behalf of plaintiff. (AR 478-86.) In the form, Dr. Appelbaum diagnosed plaintiff with major depressive disorder and attention deficit hyperactivity disorder (" ADHD"). (AR 482.) Dr. Appelbaum noted that plaintiff is " unable to remember [appointment] times or dates, is unable to concentrate [on the] task at hand, and has struggled going to school due to these [symptoms]." (AR 479.) Dr. Appelbaum opined that plaintiff " is unable to maintain employment or school" and found that he has marked limitations in his " ability to carry out detailed instructions, " " ability to maintain attention and concentration for extended periods, " " ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, " " ability to complete a normal workday and work week without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, " and " ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness." (AR 479, AR 483-85.)
On October 24, 2011, medical expert and psychologist Craig Rath, Ph.D. (" ME") testified at an administrative hearing. (AR 63-87, AR 194.) Based on a review of the record, the ME diagnosed plaintiff with mood disorder, not otherwise specified with an1ious and depressed features. (AR 67.) The ME opined that plaintiff would have moderate restrictions in his activities of daily living, social functioning, and concentration, persistence or pace, and would not have episodes of decompensation in work or work like settings. (Id.)
In assessing the medical opinions, the ALJ assigned " great weight" to the ME's opinion because " he had the opportunity to review the complete medical file, as well as to question [plaintiff] directly (should that have been necessary)" and his " assessment is consistent with the bulk of other evidence." (AR 21.) The ALJ assigned Dr. Appelbaum's opinion " little weight." (AR 20.)
Having carefully reviewed the record and the Joint Stipulation, the Court is persuaded that the ALJ's assessment of Dr. Appelbaum's opinion is not legally sufficient and/or supported by substantial evidence.
First, the ALJ rejected Dr. Appelbaum's opinion because his " diagnosis of ADHD is not documented in the medical evidence." (AR 20.) However, this reason is belied by the record. While the Court agrees that the majority of plaintiff's treatment records refer to major depressive disorder as his primary impairment, the medical evidence commented on plaintiff's placement in special education classes on numerous occasions and reported a diagnosis of ADHD in at least one treatment note. (See, e.g., AR 223 (Adult Disability Report form indicating plaintiff completed the tenth grade and attended special education classes), AR 429 (treatment note, dated April 2, 2009, indicating plaintiff " was in special education classes up until the present"), AR 462 (treatment note, dated May 27, 2010, indicating plaintiff " is presently diagnosed with Major Depressive Disorder" and ADHD), AR 473 (treatment note, dated April 20, 2010, indicating plaintiff was registered with disabled student services).) Moreover, a treatment note, dated June 12, 2008, noted plaintiff's past prescriptions include Adderall and Ritalin, which are commonly used to treat ADHD. (AR 295-96.) Accordingly, the Court finds the ALJ's reasoning is not supported by substantial evidence.
See www.drugs.com.
Second, the ALJ assigned " little weight" to Dr. Appelbaum's opinion because " there has been no offer of proof of ongoing medical treatment from September 2010 through [February 1, 2012]." (AR 20.) The Court fails to see how a lack of treatment records from September 2010 onwards undermines Dr. Appelbaum's opinion in light of the fact that his opinion is based on his treatment of plaintiff for over two years and is supported by roughly a year and a half of treatment records. (See AR 403-77, AR 482.) Treatment notes bolster Dr. Appelbaum's conclusions and consistently reported, among many other symptoms, that plaintiff experienced racing thoughts, feelings of worthlessness, difficulty starting and finishing work and concentrating, following rules at his sober living facility, maintaining his hygiene, and communicating. (See, e.g., AR 413-31 (treatment note, dated April 2, 2009, indicating plaintiff has been living at sober living for about 8 months, but was evicted from a different facility for breaking the rules, experiences symptoms of being easily distracted and lacking motivation, has difficulty starting and finishing work, has " problems with angry outbursts at his sober living, " and suffered from physical and mental abuse as a child), AR 441-43 (treatment note, dated August 25, 2010, indicating plaintiff suffers from mood swings, feeling overwhelmed at school, and " dropped his karate class because he had a hard time interacting with others"), AR 462 (treatment note, dated May 27, 2010, indicating plaintiff experienced " extensive" trauma at the hands of his parents, and his symptoms include " depression, mood instability, poor anger management and an2iety" and noting poor hygiene).)
Further, a review of the treatment record reveals that plaintiff has not had consistent living arrangements, and as Dr. Appelbaum mentioned, he struggles with remembering appointment times and dates. (See AR 92 (plaintiff testifying on June 19, 2008 that he was living in his truck), AR 328 (treatment note, dated August 2, 2008, indicating plaintiff was living in car), AR 329 (mental status examination note from Central Jails Complex), AR 413 (treatment note, dated April 2, 2009, indicating plaintiff " has lived at his sober living for about 8 months" and was " evicted" from a prior sober living facility for " breaking the rules").) Thus, under these circumstances, the Court declines to find the ALJ's reason to be specific and legitimate for discounting Dr. Appelbaum's opinion.
Third, the ALJ's adoption of the non-examining and non-treating physician ME's opinion, standing alone, does not constitute " substantial" evidence. See Lester, 81 F.3d at 832 (" In the absence of record evidence to support it, the nonexamining medical advisor's testimony does not by itself constitute substantial evidence that warrants a rejection of . . . the examining [physician]'s opinion.").
The Court also notes that the ALJ assigned greater weight to the ME's opinion because he " had the opportunity to question [plaintiff] directly (should that have been necessary)." (AR 21.) However, plaintiff failed to appear for his hearing on October 24, 2011. (AR 11.)
Thus, Disputed Issue Three warrants reversal of the Commissioner's decision.
II. Reversal is warranted based on the ALJ's assessment of plaintiff's credibility .
Plaintiff contends that the " ALJ did not assess [plaintiff's] credibility under . . . judicially well-established standards." (Jt. Stip. 28.)
Where the claimant has produced objective medical evidence of an impairment or impairments which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ " must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834; see also Dodrill, 12 F.3d at 918. Further, a credibility finding must be " sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The claimant's reputation for truthfulness; (2) inconsistencies in testimony or between testimony and conduct; (3) the claimant's daily activities; (4) an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment; and (5) testimony from physicians concerning the nature, severity, and effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59.
In an Adult Function Report, completed on June 23, 2009, plaintiff reported that he lives in a group home for individuals suffering from mental illness. (AR 245-52.) He stated that he does not take care of his personal hygiene, often skips meals, and has no energy during the day, but is, at times, sleepless at night. (AR 246.) He reported that he needs reminders taking his medication and is unable to pay bills, handle a savings account, or use a checkbook or money orders. (AR 247-48.) He further stated that his living facility prepares meals and he has difficulty socializing with others. (AR 247, AR 250.)
In his decision, the ALJ rejected plaintiff's credibility based on the following three grounds: Plaintiff's " symptoms are not credible to the extent they are inconsistent with the above [RFC] assessment"; " 2010 notes from his social worker[] . . . indicate he was able to attend class, he had begun attending church and participating in their social activities, and his bicycle riding helped to reduce his depression"; and " there has been no offer of proof of ongoing medical treatment from September 2010 through [February 1, 2012]." (AR 19.)
These were not clear and convincing reasons to reject plaintiff's subjective symptom testimony.
First, the ALJ erred to the extent he rejected plaintiff's credibility based on a lack of objective medical evidence. Bunnell, 947 F.2d at 345 (Once a plaintiff meets the burden of producing objective medical evidence of his impairments and showing that the impairments could reasonably be expected to produce some degree of the alleged symptoms, medical findings are not required to support the alleged severity of pain.). As discussed, supra in § I, plaintiff provided sufficient medical evidence of underlying impairments that were reasonably likely to cause the symptoms he described.
Second, the ALJ improperly rejected plaintiff's credibility based on his daily activities. For example, the ALJ found that plaintiff " was able to attend class, he had begun attending church and participating in their social activities, and his bicycle riding helped to reduce his depression." (AR 19.) However, the ALJ's paraphrasing of plaintiff's daily activities is not entirely accurate. Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (" [T]he ALJ developed his evidentiary basis by not fully accounting for the context of materials or all parts of the testimony and reports. His paraphrasing of record material is not entirely accurate regarding the content or tone of the record."). For example, while treatment notes reported that plaintiff was attending classes at community college, he found his " course of study difficult" and was enrolled in disabled student services. (AR 473.) More importantly, plaintiff continued to suffer from severe symptoms of depression, and struggled with self-care. (See, e.g., AR 452 (treatment note, dated July 2, 2010, indicating plaintiff was " casually dressed in dirty clothing" and his " hygiene was poor"), AR 462 (treatment note, dated May 27, 2010, indicating plaintiff's " hygiene was poor" and there " was an unpleasant odor about him"), AR 466 (treatment note, dated May 14, 2010, indicating plaintiff's " hygiene was poor").) Thus, plaintiff's activities do not support the ALJ's rejection of his subjective complaints or the ALJ's conclusion that he is able to sustain gainful employment, as none of plaintiff's activities translate into an ability to do activities that are transferable to a work setting. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ errs in failing to make a finding to the effect that ability to perform daily activities translated into the ability to perform appropriate work); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (" This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability.").
Lastly, the Court declines to find a lack of treatment records beginning on September 2010 to be a clear and convincing reason to discount plaintiff's subjective complaints. As discussed, supra in § I, the record reflects good reasons for any failure to access health care services ( i.e ., plaintiff suffers from housing problems and has had problems related to his interaction with the legal system). See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (" [I]t is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.") (internal quotations and citation omitted).
Thus, Disputed Issue Two warrants reversal of the Commissioner's decision.
III. Disputed Issues One, Four, and Five may be resolved upon further proceedings .
Plaintiff's remaining claims are directly implicated by the resolution of Disputed Issues Two and Three. Resolution of Disputed Issues One, Four, and Five -- in which plaintiff challenges the ALJ's step three determination, RFC assessment, and step four determination -- is dependent on the outcome of a proper determination of the evidence of plaintiff's mental limitations as discussed above. See also Hayes v. Astrue, 270 Fed.Appx. 502, 505 (9th Cir. 2008) (RFC findings are reviewed in light of the record as a whole); cf. Delegans v. Colvin, 584 Fed.Appx. 328, 333 (9th Cir. 2014) (" Because we hold that the ALJ erred in discrediting significant evidence of [the claimant's] mental limitations, we agree with [the claimant] that the ALJ erred at step three, in her [RFC] determination, and at step five."). Accordingly, the Court declines to determine their merits as they may be addressed appropriately by the ALJ as they arise upon further administrative proceedings.
CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985) (per curiam) (as amended).
This is not an instance where no useful purpose would be served by further administrative proceedings. Rather, this is an instance where additional administrative proceedings could remedy the defects in the ALJ's decision.
Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.
JUDGMENT
In accordance with the Order Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings, filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is reversed and this matter is remanded for further administrative proceedings.