Opinion
Case No. 6:18-cv-01211-YY
07-25-2019
MELODY A., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION :
Melody A. ("plaintiff"), seeks judicial review of the final decision by the Commissioner of Social Security ("Commissioner") finding that she had medically improved as of January 1, 2012, resulting in the termination of her Disability Insurance Benefits ("DIB"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, it should be REVERSED and REMANDED for the immediate calculation of benefits.
The ALJ found that plaintiff became disabled again on June 1, 2016, and plaintiff's benefits were reinstated as of that date. Tr. 1010. The court's review, therefore, is limited to the relevant period of January 1, 2012, to June 1, 2016.
BACKGROUND
Born in 1962, plaintiff was 44 years old when she was granted benefits and 49 when the Commissioner determined that she was no longer disabled. Tr. 94. Plaintiff has past relevant work as a pharmacy technician. Tr. 1010.
As a child, plaintiff was abandoned by her mother and raised by her father who physically and sexually abused her. Tr. 876, 920. She also suffered sexual abuse from two other individuals. Tr. 876, 883. As an adult, plaintiff was traumatized when a coworker threatened to kill her. Tr. 876.
Plaintiff has been diagnosed with post-traumatic stress disorder ("PTSD") secondary to childhood abuse, bipolar disorder, panic disorder, dependent personality style, urinary incontinence, obesity, fibromyalgia, myofascial pain syndrome, migraines, sleep apnea, insomnia, mood disorder, trichotillomania, anxiety disorder, ADHD, and major depressive disorder. Tr. 924, 974, 1238-39, 1414, 1469.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on September 14, 2006, alleging disability beginning on May 31, 2006. Tr. 1112. Plaintiff's claim was denied initially and she requested a hearing for reconsideration before an ALJ. Tr. 1112-13. In a decision dated June 11, 2008, plaintiff was found disabled beginning May 31, 2006. Tr. 995. This initial disability determination is referred to as the comparison point decision ("CPD") under the Social Security regulations. Tr. 999.
On January 12, 2012, the Commissioner determined that plaintiff's impairments improved enough after the CPD that she was able to return to work and was no longer disabled as of January 1, 2012. Tr. 995. That determination was upheld upon reconsideration after a disability hearing by a State agency Disability Hearing Officer. Id. A subsequent hearing was held before Administrative Law Judge Riley Atkins ("ALJ Atkins") on November 20, 2013. Tr. 23. On December 23, 2013, ALJ Atkins issued a decision affirming the cessation date of January 1, 2012. Tr. 995. The Appeals Council denied plaintiff's request for review, making ALJ Atkins' decision the final decision of the Commissioner. Tr. 1113.
Plaintiff then sought judicial review with this court. On November 30, 2016, Judge Simon issued an opinion holding that ALJ Atkins had improperly rejected the medical opinion of examining physician Dr. Carter and remanded the case for further proceedings. Tr. 1143.
On remand, the case was sent to ALJ Andrew Grace ("the ALJ"). Tr. 1043. Plaintiff testified at a hearing before the ALJ on October 24, 2017. Tr. 1043-75. On May 3, 2018, the ALJ issued an amended decision finding that plaintiff's impairments improved enough after the CPD that she was able to return to work and was no longer disabled as of January 1, 2012; however, the ALJ found that plaintiff became disabled again on June 1, 2016, and her benefits were reinstated as of that date. Tr. 995-1012. The Appeals Council denied plaintiff's request for review, and plaintiff filed a complaint with this court. Tr. 1-7. The ALJ's decision is therefore the Commissioner's final decision subject to review. 20 C.F.R. § 422.210.
The court's review is limited to the relevant period of January 1, 2012, to June 1, 2016.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and "'may not affirm simply by isolating a specific quantum of supporting evidence.'" Garrison v. Colvin, 759 F.3d 995, 1009- 10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, and in Ninth Circuit case law. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).
Once the Commissioner finds a claimant to be disabled, a presumption of continuing disability arises. Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (citation omitted). To revoke benefits, "[t]he Commissioner bears the burden of establishing that a claimant has experienced medical improvement that would allow him to engage in substantial gainful activity." McCalmon v. Astrue, 319 F. App'x 658, 659 (9th Cir. 2009) (citing Murray, 722 F.2d at 500). The Commissioner must follow an eight-step sequential evaluation process in determining whether the claimant's impairments have sufficiently improved to warrant a cessation of DIB. See 20 C.F.R. § 404.1594(f).
The eight steps are as follows: (1) if the claimant is currently engaged in substantial gainful activity ("SGA"), disability has ended; (2) if not, and the claimant has an impairment or combination of impairments that meets or equals a listing, disability continues; (3) if the claimant does not meet or equal a listing, the ALJ will determine whether medical improvement has occurred; (4) if so, the ALJ will determine whether the improvement is related to the claimant's ability to work (i.e., to an increase in the claimant's RFC); (5) if no medical improvement—or no improvement related to ability to work—has occurred, disability continues, unless certain exceptions apply; (6) if there has been medical improvement related to the claimant's ability to work, the ALJ will determine whether all the current impairments, in combination, are "severe"; if not, disability ends; (7) if the claimant meets the "severity" criteria, the ALJ will determine the current RFC, and, if the claimant is able to do past work, disability ends; (8) if the claimant remains unable to do past work, the ALJ will determine whether the claimant can do other work, given her RFC, age, education and past work experience. If so, disability ends. If not, disability continues. 20 C.F.R. § 404.1594(f).
At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since her disability ended on January 1, 2012. Tr. 999.
At step two, the ALJ found plaintiff did not have an impairment or combination of impairments that met or equaled a listing. Tr. 1000.
At step three, the ALJ found medical improvement had occurred as of January 1, 2012. Tr. 1001.
At step four, the ALJ found plaintiff's medical improvement was related to her ability to do work because plaintiff's impairments no longer met a listing. Id. Thus, step five was rendered inapplicable and the ALJ moved on to step six.
At step six, the ALJ found that as of January 1, 2012, plaintiff's impairments continued to be severe and caused more than minimal limitation in her ability to perform work activities. Id.
At step seven, the ALJ assessed plaintiff's residual functional capacity ("RFC") and determined that she could perform a range of light work except that she could never climb ladders ropes and scaffolds; could occasionally kneel, crouch, and crawl; needed to avoid concentrated exposure to hazards; could perform simple, routine, repetitive tasks consistent with unskilled work; was limited to low stress work defined as work requiring few decisions or changes; could have occasional contact with the public, coworkers, and supervisors; could perform at a standard or ordinary pace, but not at strict a production rate pace in which she had no control over the speed of the work. Id. The ALJ concluded step seven with the determination that plaintiff was incapable of performing her past relevant work. Tr. 1010.
At step eight, the ALJ found that plaintiff could perform jobs that exist in significant numbers in the national economy, including photocopy machine operator, collator operator, and office helper. Tr. 1010-11.
FINDINGS
Plaintiff argues that the ALJ erred by improperly discounting her subjective symptom testimony; erroneously rejecting the medical opinions of Dr. Carter, Dr. Deschamps, and licensed clinical social worker Laila Ayyoub; improperly concluding that she had experienced medical improvement related to the ability to work; erroneously finding that her impairments no longer met or equaled Listings 12.04 and 12.06; and providing an inadequate hypothetical to the VE.
I. Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
Effective March 28, 2016, the Commissioner superseded Social Security Ruling ("SSR") 96-7p, governing the assessment of a claimant's "credibility," and replaced it with SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to "credibility," clarifies that "subjective symptom evaluation is not an examination of an individual's character," and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine "the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Id. at *4.
ALJ Atkins rejected plaintiff's testimony from the 2013 hearing, and that determination was affirmed by Judge Simon. Tr. 29, 1132-37. Accordingly, the ALJ properly rejected plaintiff's 2013 testimony. However, plaintiff testified again in 2017, and the fact that the ALJ properly discounted her 2013 symptom testimony does not require the court to accept that her 2017 testimony was not credible. See SSR 16-3p ("Adjudicators must limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments . . . . The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person."). As explained below, the ALJ improperly rejected plaintiff's 2017 testimony.
A. Activities of Daily Living
An ALJ may invoke activities of daily living for purposes of assessing symptom allegation credibility to (1) illustrate a contradiction in previous testimony, or (2) demonstrate that the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ found that in 2010, plaintiff "engaged in a number of activities requiring some degree of social functioning. While previously she was homebound, [she] reported going to the grocery store and the movies, as well as swimming at the local gym." Tr. 1003. Notably, however, the ALJ concluded that plaintiff was disabled in 2010. Therefore, plaintiff's activities in 2010 do not constitute a clear and convincing reason for discounting her testimony regarding whether she was disabled from January 1, 2012, to June 1, 2016.
The ALJ also cited plaintiff's ability to attend therapy sessions and bariatric classes, and swim most days. Tr. 1003. However, plaintiff went swimming with her mother, and stopped swimming after her mother died in August 2011. Tr. 765, 854. Therefore, during the entirety of the relevant period of January 1, 2012, to June 1, 2016, plaintiff was no longer swimming.
Furthermore, plaintiff's ability to attend her medical and mental health appointments is not a clear and convincing reason for discounting her testimony. While such activities formed part of the proper basis for discounting plaintiff's 2013 testimony, that was because plaintiff testified that she left her house one or two times per week, but her activities, which included attending medical appointments, demonstrated that she was actually leaving the house every day. Tr. 32-33, 68-69, 1136. In her 2017 hearing, plaintiff did not testify that she left her home only one or two times per week. Accordingly, it is unclear how plaintiff's ability to attend medical appointments is inconsistent with her 2017 testimony. See Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918) (holding that to properly discredit a claimant, "[t]he ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion").
Moreover, finding that a claimant's ability to attend medical appointments is a proper basis for discounting her testimony would be problematic given that a claimant's failure to attend their medical appointments is a proper basis for discounting testimony. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (quoting Tommasetti, 533 F.3d at 1039) ("[I]n assessing a claimant's credibility, the ALJ may properly rely on unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment."); see also Taylor v. Astrue, Civil No. 08-0230-AA, 2009 WL 10690945, at *8 (D. Or. Mar. 25, 2009) (citing the claimant's failure to attend medical appointments as a proper basis for discounting her testimony); Munguia v. Astrue, No. C 09-02440 PJH, 2010 WL 760446, at *5-6 (C.D. Cal. Mar. 4, 2010) (same); Blake L. v. Berryhill, No. 3:17-cv-01647-YY, 2019 WL 289098, at *9 (D. Or. Jan 4, 2019), findings and recommendation adopted 2019 WL 281285 (D. Or. Jan. 22, 2019) (holding that a claimant's ability to attend medical appointments was not a proper basis for rejecting a treating psychiatrist's opinion).
The ALJ additionally relied on the fact that plaintiff helped her daughter find employment and was able to walk her dog. Tr. 1003. Yet, the ALJ failed to cite any evidence that plaintiff engaged in these activities during the relevant period. In fact, all of the evidence cited by the ALJ occurred in 2010 and 2011. See Tr. 1003 (citing Tr. 683, 717, 721, 809, 817, 821). A review of the record reveals no evidence that plaintiff assisted her daughter in finding employment at any point during the relevant period. While there is evidence that plaintiff continued to walk her dogs, it is not clear how that conflicts with her testimony. As discussed above, walking her dogs every day was inconsistent with her 2013 testimony that she only left the house about two times per week; however, in 2017, she did not testify that her limitations were that extreme.
The ALJ also noted that in 2012, plaintiff was attending two support groups and able to keep up with day-to-day housework. Tr. 1003. Again, it would be problematic to hold that an ALJ could properly discount plaintiff's testimony based on her ability to attend mental health appointments. With regard to plaintiff's ability to perform housework, there is a single treatment note stating that plaintiff was "able to generally keep up with house work," but it is not clear what that housework entailed. Tr. 855. Notably, three months earlier, plaintiff had reported that her daughter was living with her and helping with laundry, cleaning, dishes, and cooking instead of paying rent. Tr. 773. At the time that plaintiff was purportedly able to keep up with housework, her daughter was still living with her, and there is nothing to indicate that their arrangement of chores in lieu of rent had changed. Tr. 855.
The ALJ further found that in "February 2013, [plaintiff] disclosed that she was no longer strictly homebound. She admitted she could travel with family members and go to the store." Tr. 1003. As noted previously, the fact that plaintiff was not strictly homebound is not inconsistent with her 2017 testimony. Moreover, engaging in minimal activities or attempting to lead a normal life does not foreclose a claimant from disability benefits. Orn, 495 F.3d at 639; Molina, 674 F.3d at 1112-13 (The "claimant need not vegetate in a dark room to be eligible for benefits.") (citation omitted). It is unclear how plaintiff's ability to go to the store or travel with family members was inconsistent with her testimony. Indeed, it is unclear what the vague reference to travel actually entailed.
The Commissioner argues that plaintiff's ability to return to work for a few months undermines her testimony. Def. Br. 5, ECF #11. The Commissioner cites the fact that plaintiff was enthusiastic about her job and reported only "low distress." Id. (citing Tr. 1296). However, plaintiff initially worked only two days per week. Tr. 1051-52. And, although she agreed to work an extra day or two per week after an employee left, working those extra days was "hectic" and her anxiety increased. Tr. 1059, 1293. After another employee left, plaintiff began working full time, but this took a toll on her and she started missing work due to her anxiety. Tr. 1051-52. Plaintiff explained that store management was supposed to hire additional employees so she would not have to work as many hours, but failed to do so. Tr. 1059. Plaintiff "was trying to do as best as [she] could with it, but [she] was having trouble." Id. On several occasions, she had to leave work early and go home because she could not handle the stress, and this occurred as often as twice per week. Id.; Tr. 1070. Due to stress at work, she became "quite depressed," was much more anxious, and had trouble concentrating. Tr. 1309. Her nightmares increased, she isolated herself more, and she became increasingly irritable. Tr. 1060-61.
When plaintiff took time off for kidney surgery, her boss called her back one day before her doctor medically cleared her for work because the store was short-staffed. Tr. 1312. Plaintiff went to work, but she was able to last only one hour before becoming overwhelmed by her anxiety. Tr. 1052. She went home and "curled up into a ball." Id. At that point plaintiff told her employer that she would not be able to return to work. Tr. 1053. In the coming weeks, plaintiff had an "extreme increase in anxiety symptoms, including insomnia and nightmares, increased panic attacks, frequent tearfulness, [and] reluctance to discuss overwhelming problems." Tr. 1316. Thus, while the record reflects that plaintiff was able to work part time for a few months without any major issues, when she increased her hours, she became overwhelmed and was unable to sustain her work activities.
For all of these reasons, plaintiff's activities of daily living do not constitute a clear and convincing reason for discounting her 2017 hearing testimony.
B. Effective Treatment
The ALJ found that plaintiff's symptoms were controlled with medication. Tr. 1001, 1003. In support of the ALJ's decision, the Commissioner cites three instances during the relevant period where plaintiff's medications were reported to be effective in controlling her depression and anxiety. Def. Br. 4, ECF #11 (citing Tr. 822, 857, 874). However, only one of those treatment notes state that plaintiff's depression and anxiety were effectively controlled. Tr. 822. One of the treatment notes merely indicates that plaintiff was not sure if the medication was helping. Tr. 857. In the other treatment note, Dr. Kyung reported that Xanax had been somewhat effective in treating plaintiff's anxiety but did not control it entirely, and Prazosin was not helpful in preventing plaintiff's nightmares. Tr. 874. Dr. Kyung also observed that plaintiff was experiencing "symptoms of depression consistent with major depressive episodes," and panic attacks, PTSD symptoms, and trichotillomania. Tr. 874.
Furthermore, Dr. Strickler's treatment notes reflect that plaintiff had been on "numerous SSRI's and SNRI's and [did not] believe that any of them were clearly helpful." Tr. 1263. Over the years, plaintiff was prescribed Seroquel, Abilify, Risperdal, Haldol, Depakote, Trileptal, Prazosin, Clonidine, Cymbalta, Effexor, Celexa, Lexapro, Wellbutrin, Remeron, Zoloft, Clomipramine, Luvox, Paxil, Prozac, Serzone, Xanax, Klonopin, Strattera, Buspar, Nortriptyline, Adderall, Concerta, Latuda, and Ativan to treat her various mental impairments. Tr. 1263-64, 1283, 1291, 1488. In late 2015, plaintiff expressed frustration that her "medication treatment [did] not keep her mood and anxiety symptoms fully under control and [did] not keep the nightmares under control at night." Tr. 1489. Indeed, the record reflects that throughout the relevant period, plaintiff persistently suffered from panic attacks, depression, anxiety, night terrors, and nightmares. Tr. 854-55, 872, 876, 883, 885, 889, 894, 898, 911-12, 937, 963, 977, 981, 1237, 1243, 1262-63, 1274, 1284, 1307, 1309, 1311, 1316, 1371, 1410, 1416, 1418, 1423, 1425, 1430, 1432, 1453, 1464, 1468, 1479-80, 1486-87, 1489, 1493, 1497, 1500, 1647, 1663, 2379. Therefore, the record does not support the ALJ's assertion that plaintiff's mental impairments were effectively controlled.
C. Inconsistent Statements
The ALJ found the fact that plaintiff "was pleased she was functioning well" and presented with a stable mood shortly after increasing her work hours was inconsistent with her "hearing testimony of mounting difficulties and feeling overwhelmed, and strongly suggest[s] that she had been functioning at a greater level than alleged." Tr. 1006. However, as discussed above, although plaintiff was initially positive about her new job, when more hours were added, she began to struggle until she ended up "curled up into a ball," with an "extreme increase in anxiety symptoms, including insomnia and nightmares, increased panic attacks, frequent tearfulness, [and] reluctance to discuss overwhelming problems." Tr. 1316, 1052; see also Tr. 1059 ("[T]hey knew that I was not happy about the amount of hours. I was trying to do the best that I could. I was telling my counselor that I was doing well. I was trying to put on as, as best as I could. I was trying to deal as best as I could with it, but I was having trouble. I didn't get into any disciplinary actions, but there were several occasions where I had to leave and go home because of it."). Thus, her testimony was not inconsistent.
The ALJ also found "other reports from [plaintiff] strongly suggested that the reason she stopped working in April 2015 was not entirely due to the severity of her mental health, but the situational stressors were again at play." Tr. 1006. The ALJ cited three stressors: plaintiff's daughter's suicidal ideations; her kidney stones, which required surgery; and her failure to get the shift at work that she had been promised. Id. Plaintiff complained to her counselor that her boss had promised her a more desirable shift if she switched to full-time, but it appeared that despite switching to full-time, she was not going to receive that shift. Tr. 1301. At that time, plaintiff reported feeling "hopeless, withdrawn, and awful." Id. However, the record reflects that plaintiff's downward spiral was more than merely a response to external stressors. Despite obtaining help for her daughter, undergoing a successful surgery for her kidney stones, and leaving her job, her mental health continued to deteriorate. Tr. 1303. In early April 2015, plaintiff presented to her therapist as depressed with a dysphoric and anxious affect. Tr. 1311. She described her depression as the "[k]ind of curl up and stay in bed depressed." Tr. 1307. Plaintiff's counselor noted that plaintiff had "gone into a state of panic and avoidance, feeling her thoughts [were] racing so fast that she [could] not think straight any more." Tr. 1314. Two weeks later, plaintiff presented as tense, haggard, and tearful. Tr. 1316. Plaintiff's therapist observed that plaintiff had an "extreme increase in anxiety symptoms, including insomnia[,] nightmares, [and] increased panic attacks." Tr. 1316.
After brief improvement in June 2015, plaintiff reported that her mood had again worsened. Tr. 1414. She explained that she could not stop crying and did not want to get out of bed. Id. The next month, Dr. Strickler increased plaintiff's Latuda prescription because plaintiff was "experiencing significant depressive symptoms." Tr. 1432. Even with the increase in medication, a week later, plaintiff was experiencing "worsening depression." Tr. 1434. The record thus reflects that plaintiff's periods of decreased functioning went beyond situational stressors.
Moreover, as Dr. Deschamps indicated, the inability to cope with situational stressors is encompassed within plaintiff's mental health problems. Tr. 2768. Dr. Deschamps characterized plaintiff as being "easily destabilized by increased anxiety due to both external and internal stresses." Tr. 2767-68. Accordingly, plaintiff's vulnerability to becoming mentally destabilized is a result of her psychological impairments.
The ALJ also found plaintiff's statement that she "had significant depression and largely stayed in her room" was inconsistent with treatment notes that showed normal speech, adequate eye contact, no psychomotor agitation, and organized thought processes. Tr. 1006. However, it is not clear how normal speech, adequate eye contact, lack of psychomotor agitation, or organized thought processes are inconsistent with plaintiff's depression or the fact she largely stayed in her room. Notably, in the month after she quit her job, plaintiff presented as depressed, tense, haggard, and tearful, and her counselor observed that she had an "extreme increase in anxiety symptoms." Tr. 1311, 1316.
Plaintiff reported that after she left her job, she spent most of her time in her bedroom by herself. Tr. 1062-63.
Finally, the ALJ cited June 2015 treatment notes that indicated plaintiff was not significantly depressed on most days and did not want to make major changes to medications that had been overall helpful. Tr. 1006. However, this is not inconsistent with plaintiff's testimony because she explained that the significant depression occurred during the couple of months after she quit her job, and by June 2015, two months had already passed. Furthermore, despite some improvement in June 2015, by the next month, plaintiff's depression was "moderately severe" and continued to worsen. Tr. 1426, 1430, 1432, 1434. Thus, the purportedly inconsistent statements are not a clear and convincing reason for discounting plaintiff's testimony.
D. Lack of Medical Evidence
The ALJ found that plaintiff showed an "overall waning" in the severity of her mental impairments leading up to the relevant period. Tr. 1003. The ALJ also cited mild symptoms in the first month of the relevant period. Id. The ALJ focused almost exclusively on the mild findings in the record and repeatedly dismissed any periods of increased symptoms as "transient" or "in the context of situational stressors." Tr. 1003-07. However, the ALJ may not merely cherry-pick periods of improvement to discount a plaintiff's entire symptom testimony. Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F. 3d 1195, 1205 (9th Cir. 2001) ("Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.").
The record shows that less than two months into the relevant period, plaintiff reported increased panic attacks. Tr. 854. Plaintiff sometimes had panic attacks in her sleep and it took her three to four hours to calm down afterwards. Id. Psychiatric mental health nurse practitioner Sherman observed that, during this time, plaintiff's mood was anxious and she had periods of panic with agoraphobia and night terrors. Id. Sherman explained that plaintiff was still experiencing intrusive thoughts, sleeping problems, night terrors, panic attacks, and trichotillomania. Tr. 855. Sherman also noted that plaintiff spent most days at home and had mild to moderate agoraphobia. Id. Plaintiff was pulling out her hair and had a bare spot on the back of her head. Tr. 854. In the following months, plaintiff continued to experience panic attacks and nightmares. Tr. 857, 872. In August 2012, plaintiff was suffering from night terrors almost every night. Tr. 876. Plaintiff explained that as a result of the night terrors, she was experiencing panic attacks in the mornings. Id. Plaintiff's counselor observed that plaintiff's "past experiences with sexual abuse by three different perpetrators continue to effect her and leave her feeling tense, panicky, having nightmares, [and] feeling unsafe." Tr. 883. As noted above, plaintiff continued to suffer from panic attacks, nightmares, anxiety, and depression throughout the relevant period.
Furthermore, a lack of medical evidence may not be the ALJ's sole reason for discounting a claimant's testimony. "[T]he Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Accordingly, even if the lack of medical evidence qualified as a clear and convincing reason, it would not be sufficient because the other reasons the ALJ provided for discounting plaintiff's symptom testimony were not clear and convincing. Therefore, the ALJ improperly discounted plaintiff's subjective symptom testimony from the 2017 hearing.
II. Medical Opinion Evidence
The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). However, "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Additionally, the ALJ may discount physicians' opinions based on internal inconsistencies, inconsistencies between their opinions and other evidence in the record, or other factors the ALJ deems material to resolving ambiguities. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).
A. Dr. Carter
The ALJ gave "limited weight" to Dr. Carter's opinion. Tr. 1005. The ALJ found that Dr. Carter's assessment was "unpersuasive as the level of severity implicated was inconsistent with medical records surrounding the time of that evaluation." Tr. 1004. Specifically, the ALJ found that "in the months just preceding Dr. Carter's opinion, the claimant reported having good sleep, as well as stable, normal mood." Tr. 1004. While the ALJ noted two occasions where plaintiff reported stable or normal mood, the ALJ did not address other appointments where plaintiff's mood and affect were anxious, stressed, tearful, or tense. Tr. 887, 892, 895, 900, 910, 912.
Additionally, despite reporting on two occasions that her sleep was good, the record reflects that in the months leading up to Dr. Carter's assessment, plaintiff was suffering from nightmares to the point she was afraid to go to sleep. Tr. 894, 898, 902, 910, 912, 914. Moreover, her persistent nightmares often caused her to have panic attacks when she woke up. Tr. 889, 891, 894, 898, 911-12, 935. At one point, plaintiff's "night terrors" were occurring on an almost nightly basis. Tr. 876. On several occasions, plaintiff presented as sleepy or tired. Tr. 895, 907, 912. Thus, despite isolated reports of improved sleep, the medical evidence is consistent with Dr. Carter's assessment that plaintiff had "chronic sleep problems." Tr. 920.
The ALJ also found that around the time of Dr. Carter's evaluation, plaintiff had been experiencing only mild depression. Tr. 1004. However, in August 2012, Dr. Kyung observed plaintiff's symptoms of depression were "consistent with major depressive episodes with anhedonia, feelings of guilt, worthlessness, decreased energy [and] concentration, [and] changes in sleep." Tr. 874. Plaintiff reported episodes of depression with decreased energy, in which she would lie in bed and cry. Tr. 876. While it was noted that plaintiff's depression was mild near the time of Dr. Carter's examination, that is consistent with Dr. Carter's conclusion that even though plaintiff had "not had a significantly severe manic episode for some time," she continued "to have episodes of depression." Tr. 919. Indeed, one week after Dr. Carter's evaluation, plaintiff reported that she continued to have "panic attacks and nightmares frequently." Tr. 935.
The ALJ additionally found that "subsequent medical records in 2013 showed evidence contrary to the psychologist's statements." Tr. 1004. The ALJ relied on a treatment note in April 2013 in which plaintiff presented as calm with euthymic mood. Tr. 1004. However, at that same appointment, it was noted that plaintiff had a slightly anxious mood and affect and reported that she was still experiencing panic attacks and nightmares. Tr. 963. The ALJ also cited a treatment note from June 2013 in which plaintiff presented with good eye contact, normal speech, and normal affect. Tr. 1004. Nevertheless, this was in the context of treating a foot sprain. Tr. 971. Notably, in August 2013, plaintiff continued to report that she was depressed and experiencing panic attacks. Tr. 973. Plaintiff was eating her own hair as a coping mechanism and had been "very depressed for the past couple of months." Tr. 973, 977. Plaintiff's counselor observed that plaintiff's "[v]egetative signs suggest a moderate to severe state of depression." Tr. 977. Thus, contrary to the ALJ's conclusion, the subsequent medical records in 2013 contained evidence supporting Dr. Carter's assessment. Furthermore, the overall record indicates that plaintiff continued to struggle with depression throughout the remainder of the relevant period. Tr. 1263, 1274, 1284, 1309, 1307, 1311, 1371, 1416, 1423, 1425, 1430, 1432, 1453, 1464, 1479, 1486, 1497. Plaintiff also frequently suffered from high levels of anxiety. Tr. 1237, 1263, 1274, 1309, 1311, 1316, 1418, 1423, 1453, 1479, 1486-87, 1493, 1500, 1647, 1663. As such, the record supports Dr. Carter's conclusions.
B. Dr. Deschamps
The ALJ gave "little weight" to the opinion of Dr. Deschamps, plaintiff's primary care provider. Tr. 1008, 2767. The ALJ found that Dr. Deschamps "largely saw [plaintiff] with respect to her physical impairments." Tr. 1008. However, the record reflects that Dr. Deschamps also treated plaintiff for her bipolar disorder throughout the relevant period. Tr. 917, 1428, 1436, 1466. At an appointment in 2013, Dr. Deschamps noted that plaintiff had bipolar disorder and was mildly depressed. Tr. 914. In July 2015, Dr. Deschamps observed that plaintiff's affect was flat and sad. Tr. 1427. Dr. Deschamps administered the PHQ-9 Depression Screen, and the score reflected that plaintiff's depression was moderately severe. Tr. 1426. A few weeks later, Dr. Deschamps noted that plaintiff's depression was worsening. Tr. 1434. In September 2015, plaintiff sought treatment with Dr. Deschamps regarding mood problems. Tr. 1464. Dr. Deschamps determined that plaintiff needed ongoing clonazepam to treat her bipolar disorder. Tr. 1466. Accordingly, although Dr. Deschamps treated plaintiff for her physical impairments, the record reflects that she also was actively involved in plaintiff's mental health treatment. Moreover, as plaintiff's primary care provider, Dr. Deschamps was privy to plaintiff's mental health treatment records and involved in coordinating her mental health treatment. Tr. 1432, 1434, 1460, 1464, 1517. Indeed, plaintiff followed up with Dr. Deschamps after her psychiatric hospitalization. Tr. 1464.
Dr. Deschamps provided a statement to plaintiff's attorney over the phone. Tr. 2767. The attorney drafted a written statement based on the verbal assertions made by the doctor. Id. The attorney then sent the draft to Dr. Deschamps for any changes or edits and the doctor's confirmation that the letter reflected her own medical opinion. Id. Dr. Deschamps signed the letter and attested: "I have read this letter, and made changes to it if necessary, and agree that it accurately reflects my opinion regarding [plaintiff] as expressed to [plaintiff's attorney] on 10/11/2017." Tr. 2769.
Notably, despite according little weight to Dr. Deschamps' opinion as it related to the period prior to June 1, 2016, the ALJ credited the doctor's opinion as it related to the period after June 1, 2016.
In September 2015, plaintiff required psychiatric hospitalization. Tr. 1485. She reported that she had run out of clonazepam two weeks prior to the hospitalization because she had been taking more than prescribed. Id. She had been waking up in the night overcome by her anxiety and she would take an additional dose to calm herself down. Tr. 1486.
The ALJ also found that during the course of Dr. Deschamps' treatment, plaintiff "appeared overall stable with medication management and/or presented unremarkably." Tr. 1008. While plaintiff presented as stable at a number of appointments with Dr. Deschamps, as discussed above, she also at times presented as sad and depressed. Tr. 914, 1426-27, 1434, 1464. Moreover, as her primary care provider, Dr. Deschamps was aware of plaintiff's overall treatment picture. The medical records reflect that throughout the relevant period, plaintiff continually suffered from panic attacks, night terrors, and nightmares. Tr. 854-55, 872, 876, 883, 885, 889, 894, 898, 911-12, 937, 963, 977, 981, 1243, 1262, 1284, 1316, 1410, 1468, 1480, 1486, 1489, 1497, 2379. She frequently presented as depressed, anxious, or stressed. Tr. 854, 895, 912, 1237, 1309, 1311, 1316, 1430, 1453, 1479, 1488, 1493, 1497, 1693. There were a number of times that plaintiff would succumb to her depression and spend her days crying and staying in bed. Tr. 876, 1307, 1414. Psychiatric mental health nurse practitioner Sherman noted that plaintiff spent most days at home with mild to moderate agoraphobia. Tr. 855. Dr. Kyung observed that plaintiff reported symptoms of depression "consistent with major depressive episodes." Tr. 874. Plaintiff's counselor noted that she was "prone to depression and anxiety" and that when she is "feeling helpless, [she] tends to forget basic self-care." Tr. 1376, 1423. Accordingly, the record supports Dr. Deschamps' assessment that plaintiff "demonstrated an inability to maintain consistent mental stability" and "lack[ed] the coping ability necessary to sustain effective function in the world." Tr. 2768.
C. Laila Ayyoub
In 2013, ALJ Atkins rejected licensed clinical social worker Ayyoub's statement that it was difficult to imagine plaintiff being able to tolerate the demands of a workplace. Tr. 34. Judge Simon previously held that the ALJ properly rejected Ayyoub's statement. Tr. 1123. In the 2017 decision, the ALJ again rejected the same statement from Ayyoub. Tr. 1008. Because Judge Simon has already concluded that the statement was properly rejected, this issue has been resolved.
Ayyoub is referred to alternatively as "Ms. Cusick" in Judge Simon's opinion and the ALJ decision. Tr. 1008, 1123.
III. Remand
When a court determines the Commissioner erred in some respect in making a decision to deny benefits, the court may affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for a rehearing." Treichler v. Commissioner, 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for further proceedings or immediate payment of benefits, the Ninth Circuit employs the "credit-as-true" standard when the following requisites are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the record has been fully developed and further proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison, 759 F.3d at 1020. Even if all of the requisites are met, however, the court may still remand for further proceedings, "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Id. at 1021.
Here, the first requisite of the Garrison test is met, as the ALJ erroneously assessed the medical opinions of Dr. Carter and Dr. Deschamps, and improperly discounted plaintiff's testimony. As to the second requisite, the record is fully developed, and further administrative proceedings would serve no useful purpose. To determine whether the record is fully developed, the court looks to whether there are "significant factual conflicts in the record between [the claimant's] testimony and objective medical evidence." Treichler, 775 F.3d at 1104 (emphasis added).
Here, there are no significant factual conflicts. Plaintiff has been diagnosed with PTSD, bipolar disorder, panic disorder, dependent personality style, urinary incontinence, obesity, fibromyalgia, myofascial pain syndrome, migraines, sleep apnea, insomnia, mood disorder, trichotillomania, anxiety disorder, ADHD, and major depressive disorder. Tr. 924, 974, 1238-39, 1414, 1469. Throughout the relevant period, plaintiff continually suffered from panic attacks, night terrors, and nightmares, and repeatedly presented with symptoms of anxiety and depression. There were several periods during which plaintiff was tearing out her hair due to her mental impairments, and at least one instance where she was eating her hair as a coping mechanism. Tr. 854, 873-74, 973, 1471, 1505. Plaintiff went through stretches where should isolate herself in her home, frequently crying and spending much of her time in bed. Tr. 855, 876, 1063, 1307, 1414.
With regard to the medical opinion evidence, Dr. Deschamps avowed that overall, plaintiff is "easily destabilized by increased anxiety" and lacked "the coping ability necessary to sustain effective function in the world." Tr. 2767-68. That determination is consistent with the conclusion of Dr. Carter, who opined that plaintiff was "not resilient enough psychologically to be gainfully employed on a consistent basis." Tr. 924. Dr. Carter explained that plaintiff's mental impairments trigger episodes of decompensation multiple times per week and as a result she is "not socially resilient enough for work settings." Id.
Additionally, Dr. Carter concluded that plaintiff's impairments affected her ability to maintain concentration and attention such that she was "insufficiently productive for regular employment." Tr. 924. This is consistent with Dr. Deschamps' determination that when plaintiff is triggered, her "psychological problems prevent her from maintaining focus and concentration." Tr. 2768. Dr. Kyung also noted that plaintiff's depression symptoms interfered with her ability to concentrate. Tr. 874.
The Commissioner has failed to identify any significant conflicts in the record. While the opinions of the non-examining physicians are inconsistent with the opinions of treating physician Dr. Deschamps and examining physician Dr. Carter, the opinions of non-examining physicians are insufficient to establish a significant factual conflict with the opinions of treating and examining physicians. See Wesman v. Berryhill, No. 6:16-cv-01222-JR, 2018 WL 1249921, at *11 (D. Or. Feb. 21, 2018), findings and recommendation adopted sub nom. 2018 WL 1247866 (D. Or. Mar. 9, 2018) (finding the contradictory opinions of the non-examining doctors to be insufficient to create a significant factual conflict with the opinions of the treating physicians); see also Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) ("The opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician."). Thus, there are no significant factual conflicts in the record.
Furthermore, a remand for proceedings would serve no useful purpose. The Commissioner has already had two opportunities to properly assess the medical opinion evidence and has failed to do so. The caselaw in this circuit does not support remanding to afford the Commissioner a third opportunity. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Rustamova v. Colvin, 111 F.Supp. 1156, 1165 (D. Or. 2015). Indeed, in Rustamova, the court held that "allowing the Commissioner a third opportunity to try to meet her burden . . . would create the very 'heads we win; tails, let's play again system of disability benefits adjudication,' that the Ninth Circuit has repeatedly cautioned against." Rustamova, 111 F.Supp. at 1165 (citing Benecke, 379 F.3d at 595). Additionally, the administrative record in this case is nearly 3,000 pages long and exhaustively documents plaintiff's treatment history during the relevant period. Thus, further proceedings would serve no useful purpose.
As to the third requisite of the credit-as-true analysis, if the discredited evidence were credited as true, the ALJ would be required to find plaintiff disabled based on the opinions of Dr. Deschamps and Dr. Carter. Dr. Deschamps concluded that plaintiff lacked the coping abilities to function effectively and that her mental impairments would interfere with her ability to maintain concentration and focus. Tr. 2767-68. Dr. Carter opined that plaintiff's mental health impairments would cause episodes of decompensation, which would render her incapable of performing in a competitive work setting, and that she would be insufficiently productive in a work setting. Tr. 924. These opinions reflect that plaintiff was unable to sustain work activities on a "regular and continuing basis." SSR 96-8p ("A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule."). Therefore, the record establishes that plaintiff was disabled under the act.
Because the medical opinion evidence is sufficient to demonstrate plaintiff was disabled during the relevant period, the court need not reach plaintiff's additional arguments regarding the Listing analysis and the hypothetical to the VE. --------
Where each of the credit-as-true factors is met, only in "rare instances" does the record as a whole leave "serious doubt as to whether the claimant is actually disabled." Revels v. Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (citing Garrison, 759 F.3d at 1021). In a footnote, the Commissioner argues that there is serious doubt. Def. Br. 14, ECF #11. "A court, however, need not consider or address 'substantive arguments raised only in a footnote.'" Keizer Campus Operations, LLC v. Lexington Ins. Co., No. 6:13-cv-00165-AA, 2013 WL 4786521, at *4 n.2 (D. Or. Sep. 5, 2013) (citing Rambus Inc. v. Hynix Semiconductor Inc., 569 F.Supp.2d 946, 985 (N.D. Cal 2008)); see also Morales v. Woodford, 388 F.3d 1159, 1168 n. 14 (9th Cir. 2004) cert. denied, 546 U.S. 935 (2005) (citation omitted).
In any event, the Commissioner's argument fails. The Commissioner argues that there is serious doubt because plaintiff showed low distress and was enjoying her job when she initially returned to work, and that she appeared to leave her employment due to reasons unrelated to her health conditions. Def. Br. 14, ECF #11. However, as explained previously, despite plaintiff's initial positivity about her part-time job, she became overwhelmed after her employer increased her hours and she was unable to sustain full-time employment. While plaintiff's mental distress may have been triggered by situational stressors, her mental impairments make her particularly susceptible to such triggers. Tr. 2768. It is also clear that plaintiff's mental deterioration occurred at the time she quit her job and continued for months afterwards was more than just a passing reaction to situational stressors. Accordingly, the court has no serious doubt that plaintiff is disabled.
RECOMMENDATION
For the reasons discussed above, the decision of the Commissioner should be REVERSED and this matter should be REMANDED for the immediate calculation and payment of benefits.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, August 08, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED July 25, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge