Opinion
No. CV-18-00134-TUC-FRZ-LCK
05-06-2019
Yak O. Garang, Plaintiff, v. Nancy A. Berryhill, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Yak Garang brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff filed a Reply. (Docs. 16, 21, 22.) Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends the District Court, after its independent review, remand for the payment of benefits.
PROCEDURAL HISTORY
Garang filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in October 2013. (Administrative Record (AR) 253.) He alleged disability from June 15, 2012. (Id.) Garang's application was denied upon initial review (AR 74-104) and on reconsideration (AR 105-46). A hearing was held on August 10, 2016 (AR 42-72), after which the ALJ found that Garang was not disabled because he could perform work available in the national economy (AR 24-33). After the submission of additional evidence, the Appeals Council denied Garang's request to review the ALJ's decision. (AR 1-2.)
FACTUAL HISTORY
Garang was born on April 23, 1976, making him 36 years of age at the onset date of his alleged disability. (AR 253.) In the past, Garang worked as a driver and warehouse staff and operated his own computer business, with earnings below $20,000 since he came to the United States as a refugee from South Sudan in 2001. (AR 266, 277.)
The ALJ found Garang had several severe impairments: diabetes mellitus, gastro-intestinal disorder, PTSD, schizophrenia, and anxiety-related disorders. (AR 27.) The ALJ determined Garang had the Residual Functional Capacity (RFC) to perform light work, semi-skilled but no pace work, with limited workplace changes, only occasional interactions with co-workers, and no public interactions. (AR 29.) The ALJ concluded at Step Five, based on the testimony of a vocational expert (VE), that Garang could perform work that exists in significant numbers in the national economy. (AR 32.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Garang argues the ALJ committed three errors: (1) she failed to provide clear and convincing reasons for rejecting Garang's credibility; (2) she accorded little weight to Garang's treating mental health physician assistant relying instead upon a non-examiner opinion; and (3) she erred at Step Five.
Credibility
Garang argues the ALJ failed to provide clear and convincing reasons to reject his symptom testimony. In general, "questions of credibility and resolution of conflicts in the testimony are functions solely" for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, "[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 16-3p. "To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
Initially, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell, 947 F.2d at 344). The ALJ found Garang had satisfied part one of the test by proving an impairment that could produce the symptoms alleged. (AR 30.) Next, if "there is no affirmative evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). Here, the ALJ did not make a finding of malingering. Therefore, to support her discounting of Garang's assertions regarding the severity of his symptoms, the ALJ had to provide clear and convincing, specific reasons. See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036).
In an August 2014 function report, Garang stated that he was too drowsy to work due to medication and he needed a cane to ambulate. (AR 306.) He also stated that someone helped him with meals, chores, and personal care. (AR 307, 308, 309.) He reported that he did not drive due to medications and he did no shopping. (AR 309.) His only socializing was weekly attendance at church. (AR 310.) He reported that he could only walk one block before resting and he could not follow instructions well or concentrate. (AR 311.) He noted he was very anxious and afraid to be around people. (AR 312.)
At the August 2016 hearing, Garang testified that the most significant barrier to working was his fear of being around people, believing they wanted to do him harm. (AR 50.) He also testified that he had developed a stutter, which had worsened over time. (Id.) He stated that sometimes his psychiatric medications helped but he experienced side effects such as hallucinations, bad dreams, and paranoia. (AR 52.) Garang indicated he had difficulty following his medication protocol and the benefit was wiped out when he was non-compliant. (AR 52-53.) He testified that he experienced headaches up to four times per week, lasting for several hours each, during which he lay in his bed. (AR 53-54.) He had been unable to complete computer repair work because it took him too long or he failed to finish the job, and he became frustrated dealing with customers. (AR 54-55, 63.) He stated that he used a cane, prescribed by his primary care doctor, due to his back problems and having taken some falls. (AR 55-56.) Garang reported that his brother paid someone to bring him groceries, cook, and help him with his bills and medication. (AR 59-60.)
According to his behavioral health medical records, these are symptoms of his disease rather than side effects of medication.
The ALJ discounted Garang's symptom testimony finding it not entirely consistent with the record. Specifically, his primary care physician, Dr. Eun Min Lee, concluded that he did not need an assistive device for walking; Garang's reported nausea was thought to stem from mental impairments, use of herbal remedies, or medication non-compliance; Dr. Lee found Garang's chronic pain was stable with only mild neuropathy; his mental health provider repeatedly assigned a GAF of 70, indicating only slight difficulties; in December 2013, he graduated from college and, in 2014, he was compliant with treatment and doing well; in 2015, he became non-compliant with medication, increased his alcohol consumption, and his mental impairments worsened.
First, Dr. Lee noted several times that Garang could ambulate without assistance, which contradicted his testimony that he needed a cane. However, Dr. Lee wrote a prescription for a cane. (AR 662.) There appears to be a question-mark on the copy of the prescription, but there is no explanation as to its meaning and no documentation as to who wrote it or when it was placed there. (Id.) This is not a clear and convincing reason to discount Garang's symptom testimony. Further, at most, this would be a reason to discount his testimony regarding his physical ability to ambulate without a cane. It is not a clear and convincing reason to discount the entirety of his symptom testimony.
Second, the ALJ stated that Garang's nausea was thought to stem from his mental impairments, use of herbal remedies, or medication non-compliance. In September 2013, he was diagnosed with acute viral gastroenteritis and benzodiazepine withdrawal. (AR 495, 498.) That same month, another ER doctor suggested that Garang's nausea could be the result of anxiety and PTSD. (AR 439.) Garang reported to the hospital that he had been taking herbal supplements that may have increased gastro-intestinal problems; he was advised the supplements could have drug interactions of concern. (AR 505.) In June 2014, ER doctors could not determine the source of his nausea, positing it could be viral, ulcers, or chronic pain. (AR 1011.) There is no subsequent reference to the use of supplements.
Regardless of the cause, the ALJ did not identify any evidence indicating that Garang did not experience nausea. To the contrary, there is extensive documentation that Garang experienced ongoing gastro-intestinal problems over the course of many years, not due to something for which he was at fault. In December 2016, PA McMillon noted that reflux was a side-effect of Garang's medications (AR 2230) and Dr. Lee diagnosed him with gastro-esophageal reflux disease (1873). Critically, the ALJ found that Garang had a severe impairment of gastro-intestinal disorder. (AR 27.) The possible cause of that impairment was not a clear and convincing reason to discount Garang's symptom testimony.
Third, the ALJ relied upon Dr. Lee's finding that Garang's chronic pain was stable with only mild neuropathy. Contrary to the ALJ's finding, the records reveal his pain was uncontrolled for two years after his June 2012 alleged disability onset date. In July 2012, Garang rated his pain at a 10 and Dr. Lee referred him to a pain specialist. (AR 723, 724.) Garang reported limited relief from treatment with the pain specialist in 2013, and the doctor noted his inability to complete daily activities. (AR 580, 584-86, 588, 592, 603-04, 606-08, 610-11.) In August 2014, Dr. Lee found Garang's chronic pain was not stable. (AR 1284.) From October 2014 forward, she repeatedly noted that his pain was stable, ranging from 4-7 out of 10 with partial relief from medication. (AR 1282, 1311, 1327, 1336, 1391, 1399, 1720, 1775, 1882, 1864.) Thus, stable did not mean non-existent; Garang was diagnosed with, and continued to be treated for, chronic pain. In many of the records cited above, Dr. Lee noted that Garang's prognosis for improving functionality was guarded. Most importantly, Garang testified that his mental health problems, not his pain, were the primary reason he was unable to work. For these reasons, the fact that Garang's chronic pain stabilized over time was not a clear and convincing reason to discount his testimony, which was primarily about his mental health symptoms.
In defending the ALJ's credibility finding, Defendant did not rely on these first three reasons cited by the ALJ to discount Garang's testimony.
Fourth, the ALJ relied upon the fact that mental health providers assigned a GAF score of 70. In March 2012, PA McMillon assigned Garang a GAF score of 65. (AR 451.) For four years, from December 2012 through December 2016, the assigned GAF score remained at 70. (AR 803, 805, 807, 809, 813, 833, 835, 837, 839, 841, 843, 845, 847, 1238, 1245, 1418, 1474, 1519, 1550, 1700, 1967.) This was true, even when PA McMillon's notes indicated that Garang was experiencing severe symptoms: September 2013, PA McMillon documented Garang's inability to work due to his mental state (AR 460); October 2013, two-day stay at psychiatric hospital after extreme anxiety, hallucinations, and suicidal ideation (AR 835, 1082, 1086, 1100); January 2014, hospitalized for five days due to auditory hallucinations telling him to commit self-harm (AR 813); March 2014, experiencing "blackouts" during which he burnt himself more than once (AR 807, 926, 1204); and March 2015, suicidal ideation (AR 1418). Behavioral health notes from others working with PA McMillon (including case managers and a therapist) repeatedly documented severe symptoms: March 2014, suicidal ideation (AR 570); March 2015, panic attacks precluded use of public transport, suicidal ideation (AR 1417, 1427); May 2015, panic attacks (AR 1435); June 2015, auditory hallucinations, suicidal ideation (1456); October 2015, isolating in apartment (AR 1517); February and March 2016, staying in bed for days at a time (AR 1536, 1542); May 2016, missed appointments and refused contact at home check (AR 1555, 1558, 1563); June 2016, not motivated to get out of bed or take medication, constant suicidal ideation (AR 1575, 1599, 1601); and July 2016, taken to ER with high psychosis, suicidal ideation, and command hallucinations (AR 1620, 1645, 1659). In December 2016, for no clear or documented reason, Garang's therapist assigned him a GAF score of 35 (AR 1912), and PA McMillon and the therapist maintained it at 35 through June 2017 (AR 1914, 1917, 1921, 1924, 1928, 1931, 1935, 1936.) This number stayed the same when Garang was hospitalized in March 2017 for a suicide attempt (AR 1924, 1978) or documented as improved post-hospitalization in April 2017 (AR 1915).
The Global Assessment of Functioning (GAF) is a 100-point scale used to give a rough estimate of a person's overall level of psychological, social, and occupational functioning. See Garrison, 759 F.3d at 1002 n.4 (citing American Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (4th ed. 2000) ("DSM IV")). Lower numbers indicate more severe symptoms. A rating of 61 to 70 indicates "mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well." DSM-IV at 34. A rating of 35 indicates impairment in reality testing or communication or "major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work . . .)." Id. GAF scores may be useful, but they are not determinative of whether a person's impairments are disabling. Garrison, 759 F.3d at 1002 n.4. The DSM-V, published in 2013, dropped use of the GAF scale finding it not sufficiently reliable.
As explained by PA McMillon, Garang's GAF scores fluctuate, particularly when he has periods of decompensation. (AR 2234.) These supposed fluctuations, however, are not reflected in the GAF score that remained unchanged for four years. The record evidence from this period documents Garang's repeated inability to work, self-imposed isolation, self-harm, command hallucinations, and suicidal ideation more closely align to GAF scores ranging from 21-50. Garang's contemporary self-reports and the medical records do not conflict with Garang's symptom testimony. In other words, the balance of the record does not reflect Garang's functioning was consistently at a level equivalent to a GAF score of 70. Therefore, the fact that Garang's mental health practitioner did not maintain an updated GAF score is not a clear and convincing reason to discount Garang's symptom testimony.
Fifth, the ALJ noted that Garang graduated from college in 2013 and was "doing well" in 2014 and earning enough to pay his bills. An ALJ may discount a claimant's symptom testimony if it is contradicted by his activities of daily living. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ cited only two positive highlights from the five years of records. This was error because a longitudinal review of the records reveals that Garang's symptoms were cyclical with periods of improvement but an overall increase in the severity of his symptoms over time. See Garrison, 759 F.3d at 1017 (finding that when an ALJ cites specific data to discredit a claimant, it will only meet the clear and convincing standard if those data points are representative of the improvement pattern on which the ALJ relies).
Shortly after graduating, in December 2013, Garang was hospitalized for five days after experiencing command hallucinations to harm himself. (AR 813.) During 2014, he experienced suicidal ideation and "blackouts" during which he burnt himself more than once. (AR 570, 807, 926, 1204.) In a 2014 review of the record, a State Agency Medical Consultant (Dr. Garland) recorded that Garang did not bathe often, did not go out alone, and did not shop. (AR 116.) Over the course of 2015, he reported inability to use public transport due to panic attacks, suicidal ideation, auditory hallucinations, and isolating in his apartment. (AR 1417, 1418, 1427, 1435, 1456, 1517.) In 2016, Garang spent multiple days in bed, missed appointments and refused contact, was not motivated to take medication, experienced frequent suicidal ideation, and heard command auditory hallucinations. (AR 1536, 1542, 1555, 1558, 1563, 1575, 1599, 1601, 1620, 1645, 1659.) As of 2016, Garang's brother had hired someone to shop, prepare food, and pay Garang's bills. (AR 59-60.) In the first three months of 2017, Garang was hospitalized twice for a total of 11 days for suicidal ideation and a suicide attempt. (AR 1977, 2091.) "[I]t is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment." Garrison, 759 F.3d at 1017 (noting that cycles of improvement and deterioration are common in mental health and an ALJ cannot focus on isolated instances of progress). The limited, temporary improvement cited by the ALJ does not provide a clear and convincing reason to discount a claimant's credibility. Further, there is not substantial evidence to support the ALJ's conclusion that Garang's symptom testimony was inconsistent with his activities of daily living.
The Court also evaluates the ALJ's reliance on her finding that Garang "stopped taking his psychotropic medications" and had difficulty controlling alcohol intake in 2015, which caused him to deteriorate. (AR 30.) The Court reviewed the exhibits cited by the ALJ, 22F and 24F. In March 2015, Garang asked for help to stop drinking alcohol, which he had been doing recently in response to increased stress. (AR 1418.) At a July appointment, he stated he was no longer drinking, and no other exhibits indicate that as an ongoing problem. (AR 1474.) In June 2015, a toxicology screen indicated non-compliance with his medications (AR 1346) and he reported not doing well on his medications at that time (AR 1455). No other records in the cited exhibits reflect medication non-compliance. There is not substantial evidence to support the ALJ's conclusion that Garang was non-compliant with his medications for an extended period in 2015. From 2012 forward, Garang continued mental health treatment and worked with his assigned team members to comply with his prescribed medication regime. It is erroneous to suggest that Garang functioned well whenever he took his medication. The record reveals numerous occasions when Garang deteriorated regardless of compliance with prescribed treatment.
The Court recognizes that other parts of the record reflect that Garang periodically reported difficulties in taking his medication, due to motivation, confusion, or unwanted side effects. The Ninth Circuit has noted, "[i]t is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." Garrison, 759 F.3d at 1018 n.24 (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). Therefore, "we do not punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed treatment as part of claimants' underlying mental afflictions." Id. PA McMillon stated that noncompliance with treatment is common for a person diagnosed with schizophrenia. (AR 2234.) Citation to one limited period of medication non-compliance over five years was not a clear and convincing reason to reject Garang's symptom testimony. Id.
The ALJ's remaining basis for discounting Garang's credibility was the objective medical evidence. If the objective medical evidence fully explained a claimant's symptoms, then credibility would be irrelevant. Credibility factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount credibility solely because a claimant's symptoms are not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). As this is the only basis remaining for the ALJ's credibility finding, it is insufficient to sustain it.
In sum, the ALJ failed to provide clear and convincing reasons supported by substantial record evidence to support her finding regarding Garang's symptom testimony.
Opinion of Barry McMillon, PA-C
Physician Assistant McMillon treated Garang's mental health from 2012 through the end of the Administrative Record in mid-2017. (AR 451, 1914.) In September 2013, PA McMillon wrote a letter stating that Garang was unable to work due to his mental state (AR 460); in February 2016, and again in December 2016, he issued an opinion on Garang's functional abilities. PA McMillon diagnosed Garang with PTSD, Major Depressive Disorder, and Schizophrenia. (AR 1628, 2230.) In February 2016, among other things, he found that Garang had extreme difficulties in maintaining concentration, persistence, and pace, and would miss more than three days of work per month due to his impairments. (AR 1630-31.) In December 2016, PA McMillon opined, in part, that Garang would miss more than 4 days of work per month due to impairments, he had experienced 4 or more episodes of decompensation in the past year, and Garang had serious limitations in numerous functional work areas. (AR 2232, 2233, 2236.)
To reject the opinion of a physician assistant, an ALJ must provide germane reasons supported by substantial evidence. See Molina v. Astrue, 674 F.3d 1104, 1110, 1111 (9th Cir. 2012); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001); see also Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017) (noting that the regulations are outdated to the extent a treating nurse practitioner is considered an "other source" not a "medical source"). Garang argues the ALJ failed to do so. In evaluating the opinion of PA McMillon, the ALJ noted that he was not an acceptable medical source under the regulations. (AR 31.) This is not a basis to discount his opinion, it is merely a statement of the then-applicable regulatory framework for physician assistants. See Haagenson v. Colvin, 656 F. App'x 800, 802 (9th Cir. 2016). In evaluating the severity of a claimant's impairments and his functional abilities, an ALJ was required to consider evidence from medical sources that are not acceptable medical sources, such as physician assistants. 20 C.F.R. §§ 404.1513(d), 416.913(d); SSR 06-03-p. Physician assistants and other professionals "have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians"; thus, evaluation of their opinions is deemed important by the Social Security Administration. Id. If an opinion is from an acceptable medical source, that may be a factor for an ALJ to give the opinion greater weight than the opinion of an other medical source. Id. However, an ALJ also may assign an other medical source greater weight than an acceptable medical source. Id. An ALJ should consider the §§ 404.1527(d), 416.927(d) factors when making that determination: the extent of the relationship the source has with the claimant; the consistency of the opinion with the other evidence; how much relevant evidence the source provides to support the opinion; the source's specialty; and other relevant factors. Id. The ALJ did not consider these factors (other than a cursory finding on consistency) because she erroneously stated that she did not have to consider them when evaluating the opinion of a physician assistant. (AR 31.) Critically, the ALJ failed to acknowledge PA McMillon's four-year history as Garang's mental health treating medical professional.
At the end of his discussion on the ALJ's treatment of PA McMillon's opinion, Plaintiff argues the ALJ erred at Step Three in not finding that Garang met one of the Listings. (Doc. 16 at 21.) Plaintiff contends that he would have met three listings if the ALJ had given PA McMillon's opinion proper weight. Plaintiff fails to explain how his impairments satisfy any of the Listings; therefore, the Court does not address this argument.
This Social Security Ruling was in effect at the time of the ALJ's decision on Garang's case but was rescinded effective March 27, 2017. On that date, the governing regulations were amended to include physician assistants as medical sources qualified to offer medical opinions. 20 C.F.R. §§ 404.1502(d), 404.1513(a)(2).
SSR 06-03p states that ALJ's should use the factors to evaluate opinions from medical providers that are not acceptable medical sources. See Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017).
The only basis the ALJ clearly cited for discounting PA McMillon's opinion was her finding that it was less consistent with the overall record than the opinions of the State Agency Medical Consultants. Specifically, the ALJ gave greater weight to the August 28, 2014 opinion of psychologist Randall J. Garland. In making this finding, the ALJ did not summarize Dr. Garland's opinion or the opinion of PA McMillon. There is no synopsis of the opinions or how they differed or a discussion of their relevant findings. More importantly, there is no discussion of what record evidence is inconsistent with the opinion of PA McMillon. The Court can review only findings made by the ALJ, it cannot take an ALJ's general finding of inconsistency and search the record to find conflicts. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). To the extent the ALJ "summarized" the record earlier in his decision (AR 28), the discussion was cursory, failed to include substantial evidence of severe symptoms, and was not reflective of the record as a whole (as noted in the Court's credibility analysis). Inconsistency with the record, unsupported by citation or substantial evidence, was not a germane reason to discount the opinion of PA McMillon. See Lewis, 236 F.3d at 512 (upholding the ALJ's rejection of lay witness testimony based on germane reasons because it was supported by substantial evidence); Page v. Colvin, No. 14-cv-02870-DMR, 2016 WL 6835075, at * (N.D. Cal. Nov. 20, 2016) (finding that ALJ's reliance on inconsistency was not sufficient unless he identified the records that were not consistent with the opinion).
In turn, there were numerous reasons the ALJ's finding on opinion evidence was not in-line with the record. Dr. Garland's summary of the medical records contained a glaring error when it stated that, in January 2014, Garang was deemed stable and discharged from psychiatric treatment. (AR 116.) The record reflects that, in January 2014, Garang was discharged from a 5-day psychiatric hospitalization, which had occurred because he was hearing command auditory hallucinations telling him to harm himself. (AR 813, 1168.) He was discharged to ongoing treatment with his mental health team at CODAC. (AR 1171-75.) At his follow-up appointment, PA McMillon documented a new diagnosis of schizophrenia. (AR 817.) Records provided to Dr. Garland revealed that, in the following months, Garang experienced auditory hallucinations, paranoia, suicidal ideation, and loss of awareness during which he burned himself on more than one occasion. (AR 570, 807, 809, 922, 926, 1195.) Dr. Garland found this new evidence did not change the initial Psychiatric Review. (AR 115.) Dr. Garland also stated that medications were effective in treating Garang's symptoms, but he was not always compliant. (AR 116.) Dr. Garland did not cite any evidence of medication non-compliance or acknowledge the severe symptoms Garang experienced despite taking medication (such as the 5-day psychiatric hospitalization and loss of conscious resulting in self-harm).
In evaluating the opinion evidence, the ALJ noted that the weight given to a State Agency Medical Consultant is dependent upon the "supporting explanation for the opinion." (AR 30-31.) However, the ALJ did not rely upon, or cite, any explanation given by Dr. Garland to support his opinion. (AR 31.) Next, the ALJ stated that an additional factor for consideration is the "amount and nature" of the evidence added to the record since Dr. Garland offered his opinion in August 2014. (Id.) However, the ALJ did not consider the subsequent mental health records; rather, she evaluated this factor only as to Garang's exertional abilities. (Id.) A substantial volume of mental health records created by PA McMillon and others at the agency where he worked, were not seen by Dr. Garland. These records document that Garang experienced ongoing, episodic, severe symptoms with a gradual worsening over time. A December 2016 opinion from Garang's therapist stated that he had a "very low probability" of employment for at least one to two years and his multiple impairments limited his employability long-term. (AR 2229.) The ALJ cited some of the relevant factors to consider in weighing the opinion evidence but did not evaluate any of them. (AR 30-31.) Again, the Court concludes that the ALJ's vague finding that PA McMillon's opinion was less consistent with the record was not a germane reason to discount his opinion.
The parties both cite the repeated GAF score of 70 as a reason the ALJ rejected the opinion of PA McMillon. (Doc. 16 at 18; Doc. 21 at 10.) The Court does not agree with that interpretation of the ALJ's opinion. The ALJ stated that, under the governing regulations, she should consider evidence from a physician assistant as to "the severity of the claimant's impairments and how they affect his ability to work." (AR 31.) Immediately thereafter, she stated "[i]n this regard, with few exceptions, his physicians' [sic] assistant and other mental health providers have generally concluded the severity of the claimant's mental impairments to be most consistent with a GAF score of 70." (Id.) The Court reads that passage as the ALJ accepting PA McMillon's opinion on the severity of Garang's impairments, to the extent encompassed in the GAF score of 70. The ALJ did not explain or support why she accepted this portion of PA McMillon's opinion while rejecting the remainder.
Because the parties both concluded that the ALJ rejected PA McMillon's opinion, in part, because it was inconsistent with a GAF score of 70, the Court evaluates whether that could be a germane reason. As documented above, the unchanging GAF score of 70 is not reflective of the treatment records from Garang's mental health providers or the emergency room and psychiatric hospital records during that four-year period. In relying primarily on the GAF score for her decision, the ALJ ignored the substance of the extensive records in this case that document Garang's repeated inability to work, self-imposed isolation, self-harm, command hallucinations, and suicidal ideation. Further, the ALJ relied upon the opinion of psychologist Randall Garland and adopted his conclusion that Garang had moderate limitations in the three functional areas evaluated at Step Three (social functioning, activities of daily living, and concentration, persistence, and pace). (AR 28, 115.) The ALJ's conclusion that Garang had moderate limitations in these areas is not consistent with a GAF score of 70 but would correlate with a GAF score of 51-60. Because the GAF score was inconsistent with PA McMillon's treatment notes and other medical opinions and records, it was not a germane reason to discount PA McMillon's opinion.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for "additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district court should credit as true medical opinions and a claimant's testimony that was improperly rejected by the ALJ and remand for benefits if:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Benecke, 379 F.3d at 594; Garrison, 759 F.3d at 1021 (precluding remand for further proceedings if the purpose is solely to allow ALJ to revisit the medical opinion he rejected). The Ninth Circuit holds that application of the credit as true rule is mandatory unless the record creates serious doubt that the claimant is disabled. Garrison, 759 F.3d at 1021.
Here, the ALJ failed to provide legally sufficient reasons to reject Garang's symptom testimony and PA McMillon's opinion. The record is thoroughly developed and there are no outstanding issues requiring resolution before the Court can make a disability finding. In her brief, Defendant argued only that the ALJ committed no harmful error; she did not identify any outstanding issues that would require a remand for further proceedings.
Garang also argues that the ALJ erred at Step Five. That argument is premised on finding error in the ALJ's treatment of Garang's symptom testimony and the opinion of PA McMillon. The Court need not reach this argument because the two errors identified by the Court are dispositive of the case. --------
Garang testified that his most significant impairment was his fear of being around people. (AR 50, 312.) He also reported that his medication made him too drowsy to work (AR 306); he required help with his activities of daily living such as obtaining and preparing food, taking medication, and paying bills (AR 59-60, 307, 308, 309); he had an inability to concentrate and could not timely do his prior computer work (AR 54-55, 63, 311); and he experienced headaches up to four times per week, causing him to lay in bed for several hours each time (AR 53-54). PA McMillon opined that Garang had extreme limitations in concentration and would miss more than three days of work per month due to his impairments. (AR 1630-31.) The vocational expert testified that a person that would be absent three or more times per month was not employable. (AR 70-71.) She also testified that if a person could only sustain concentration for two hours in a work day, he was not employable. (AR 70.) Crediting the testimony of Garang and the opinion of PA McMillon, the ALJ would be required to find Garang disabled in light of the vocational expert's testimony. See Garrison, 759 F.3d at 1022 (crediting as true a treating nurse practitioner, along with a doctor and the claimant's testimony); see also Gonzales v. Berryhill, 261 F. Supp. 3d 1085, 1098 (D. Or. 2017) (crediting as true claimant testimony of four debilitating headaches per month and an inability to stay on task, as well as a nurse practitioner's opinion that claimant would miss two or more days per month, and awarding benefits considering vocational expert's testimony that such impairments would preclude employment).
After a thorough review of the entire record, the Court does not have serious doubts as to whether Garang is disabled. Therefore, the Magistrate Judge recommends that the District Court remand this matter for the award of benefits.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.
Dated this 6th day of May, 2019.
/s/_________
Honorable Lynnette C. Kimmins
United States Magistrate Judge