Opinion
Case No. CV 19-08783-AS
01-14-2021
NICHOLE C. K., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION
For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded for further administrative action consistent with this Opinion.
Proceedings
On October 12, 2019, Plaintiff filed a Complaint seeking review of the denial of her application for supplemental security income ("SSI") by the Commissioner of Social Security ("Commissioner" or "Agency"). (Dkt. No. 1). The parties have consented to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 13, 22, 23). On March 30, 2020, Defendant filed an Answer along with the Administrative Record ("AR"). (Dkt. Nos. 20, 21). The parties filed a Joint Stipulation ("Joint Stip.") on September 11, 2020, setting forth their respective positions regarding Plaintiff's claims. (Dkt. No. 32).
The Court has taken this matter under submission without oral argument. See C.D. Cal. C. R. 7-15.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
On February 18, 2015, Plaintiff filed an application for SSI, alleging a disability onset date of January 2, 2010. (AR 271). The Commissioner denied Plaintiff's application initially and on reconsideration. (AR 182-191). On May 7, 2018, Plaintiff, represented by counsel, testified at a hearing before Administrative Law Judge ("ALJ") Kyle Andeer. (AR 80-110). The ALJ also heard testimony from Kelly Bartlett, a vocational expert ("VE"). (AR 106-108). On July 30, 2018, the ALJ issued a decision denying Plaintiff's application. (AR 17-32).
Applying the five-step sequential process, the ALJ found at step one that Plaintiff has not engaged in substantial gainful activity since February 18, 2015, the application date. (AR 22). At step two, the ALJ found that Plaintiff had the following severe impairments: affective disorder and substance abuse disorder. (Id.). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of any of the listings enumerated in the regulations. (AR 23-24).
The ALJ found that Plaintiff's obesity did not significantly limit her ability to perform basic work activities and was therefore not a severe medically determinable impairment. (AR 22-23).
Specifically, the ALJ considered whether Plaintiff meets the criteria of Listing 12.04 (depressive and bipolar related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). (AR 23).
The ALJ then assessed Plaintiff's residual functional capacity ("RFC") and concluded that she has the capacity to perform less than the full range of work at all exertional levels but with the following non-exertional limitations: "no ladders, ropes, or scaffolds; unskilled simple, routine, repetitive tasks; low stress job environment, defined as only occasional decision making or judgment required; only occasional changes in the work setting; only occasional or less interaction with the public; and only occasional interaction with coworkers and supervisors." (AR 25).
A Residual Functional Capacity ("RFC") is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1).
At step four, the ALJ found that Plaintiff does not have any past relevant work. (AR 30). Based on Plaintiff's RFC, age, education, work experience, and the VE's testimony, the ALJ determined at step five that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including laundry worker II, night cleaner, and laborer, stores. (AR 30-31). Accordingly, the ALJ found that Plaintiff has not been under a disability, as defined in the Social Security Act, since February 18, 2015, the application date. (AR 31).
On June 13, 2019, the Appeals Council denied Plaintiff's request for review. (AR 6-10). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. 42 U.S.C. §§ 405(g), 1383(c).
STANDARD OF REVIEW
This Court reviews the Administration's decision to determine if it is free of legal error and supported by substantial evidence. See Brewes v. Comm'r, 682 F.3d 1157, 1161 (9th Cir. 2012). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence supports a finding, "a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation omitted). As a result, "[i]f the evidence can support either affirming or reversing the ALJ's conclusion, [a court] may not substitute [its] judgment for that of the ALJ." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
DISCUSSION
Plaintiff's sole claim is that the ALJ improperly rejected treating physician Dr. Burdick's opinion that Plaintiff was unable to perform activities within a schedule, maintain regular attendance, and complete a normal workday and workweek without interruptions from psychologically-based symptoms. (Joint Stip. at 13, 37). After consideration of the parties' arguments and the record as a whole, the Court finds that Plaintiff's claim warrants a remand for further consideration. A. Legal Standard for ALJ's Assessment of Medical Opinions
An ALJ must take into account all medical opinions of record. 20 C.F.R. § 404.1527(b). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical opinion of a treating physician is given "controlling weight" so long as it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." 20 C.F.R. § 404.1527(c)(2). "When a treating doctor's opinion is not controlling, it is weighted according to factors such as the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, and consistency of the record." Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. § 404.1527(c)(2)-(6).
Since Plaintiff filed her application before March 27, 2017, 20 C.F.R. § 404.1527 applies. For an application filed on or after March 27, 2017, 20 C.F.R. § 404.1520c would apply. 20 C.F.R. § 404.1520c changed how the Social Security Administration considers medical opinions and prior administrative medical findings, eliminated the use of the term "treating source," and eliminated deference to treating source medical opinions. See 20 C.F.R. § 404.1520c(a); Danny L. R. v. Saul, 2020 WL 264583, at *3 n.5 (C.D. Cal. Jan. 17, 2020); see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016).
If a treating or examining doctor's opinion is not contradicted by another doctor, the ALJ can reject the opinion only for "clear and convincing reasons." Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1164 (9th Cir. 2008); Lester, 81 F.3d at 830. If the treating or examining doctor's opinion is contradicted by another doctor, the ALJ must provide "specific and legitimate reasons" that are supported by substantial evidence in the record for rejecting the opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). B. ALJ's Assessment of Dr. Burdick's Opinion
1. Dr. Burdick's Opinion
Dr. Adam Burdick, a psychiatrist at Ventura County Behavioral Health, treated Plaintiff regularly from 2014 to 2018. (See AR 473, 528, 531, 550, 560, 569). On August 13, 2015, Dr. Burdick completed a Short-Form Evaluation for Mental Disorders, where he indicated that Plaintiff had been diagnosed with major depressive disorder, recurrent. (AR 351). As part of this evaluation, he completed a Mental Status Examination of Plaintiff. Upon examination, Dr. Burdick found that Plaintiff was disheveled, appeared guarded, and avoided eye contact, but her motor activity was normal. (Id.). Her concentration was impaired but her memory was normal. (Id.). Dr. Burdick indicated that Plaintiff "has difficulty concentrating due to racing thoughts, depression and anxiety." (AR 352). Dr. Burdick found that Plaintiff was depressed and anxious with a flat affect, and she reported feeling depressed and scared. (Id.). She had severely impaired judgment and passive and fleeting suicidal thoughts, but she denied any plan or intent. (Id.). She had not used drugs or alcohol since 2013. (Id.).
Dr. Burdick opined that Plaintiff's prognosis was guarded and unlikely to improve in 12 months. (AR 353). He indicated that her symptoms included "depressed mood, passive suicidal ideation, feelings of worthlessness, anhedonia, loss of energy, restricting activities and isolation, anxiety, and difficulty concentrating and focusing." (Id.). He reported that since 2008, Plaintiff has "demonstrated repeated episodes of decomposition." (Id.). Dr. Burdick concluded that Plaintiff's mental health symptoms cause "significant impairments in her activities of daily living, social functioning, focus and concentration" and these impairments "continue to have a direct effect on her ability to acquire employment and maintain housing." (Id.).
Finally, Dr. Burdick completed a medical source statement, where he opined that Plaintiff's ability to perform or sustain the following activities was "poor": understand, remember, and carry out complex instructions; maintain concentration, attention, and persistence; perform activities within a schedule and maintain regular attendance; complete a normal workday and workweek without interruptions from psychologically-based symptoms; and respond appropriately to changes in a work setting. (Id.). Dr. Burdick further opined that Plaintiff's ability to understand, remember, and carry out simple instructions was "fair." (Id.).
2. ALJ's Findings
The ALJ gave partial weight to Dr. Burdick's opinion, finding that "some of the cognitive and adaptive limitations are inconsistent with the objective findings and [Plaintiff's] activities" and that "the evidence of her activities and mental status findings indicate a higher level of functioning" than Dr. Burdick assessed. (AR 29-30). Although not specifically identified by the ALJ as a basis for rejecting the opinion, Dr. Burdick's assessments that Plaintiff was limited in performing activities within a schedule, maintaining regular attendance, and completing a normal workday and workweek were contradicted by the opinions of the state agency reviewing physicians and consultative examiner. (See id.). Thus, the ALJ was required to state specific and legitimate reasons, supported by substantial evidence, for rejecting Dr. Burdick's opinion. See Trevizo, 871 F.3d at 675.
a. Objective Medical Evidence
Plaintiff contends that the ALJ erred by finding that Dr. Burdick's opinion was inconsistent with the objective medical evidence. (Joint Stip. at 13-18). Inconsistency with the objective medical evidence is a specific and legitimate reason for discounting a treating physician's opinion. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ's finding that Dr. Burdick's opinion conflicted with the objective medical evidence is not supported by substantial evidence.
As an initial matter, Plaintiff argues that the ALJ did not sufficiently specify in the opinion what objective medical evidence was inconsistent with Dr. Burdick's opinion. (Joint Stip. at 18). Although it is not entirely clear what objective medical evidence the ALJ found conflicted with Dr. Burdick's opinion, the ALJ discussed medical evidence about Plaintiff's affective disorder elsewhere in his opinion. See Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (even if an ALJ explains his decision "with less than ideal clarity," a court must uphold it if the ALJ's "path may be reasonably discerned") (citations omitted). The ALJ acknowledged that Plaintiff complained of various symptoms in her treatment notes, but he found that her "examinations overall include normal and unremarkable mental status findings, except for several occasions where she underwent inpatient psychiatric care." (AR 27). He indicated that she was "regularly observed to present for appointments with good grooming and hygiene, as well as good eye contact"; she was consistently observed as pleasant and cooperative"; her memory was "regularly described as being intact"; and she was "oriented, alert and in no distress." (AR 26-27, 30). He further noted that she communicated concerns with her providers and generally attended appointments as scheduled. (Id.). Finally, he found that Plaintiff reported feeling better with treatment and abstinence from substances, and her symptoms and functioning improved upon being discharged from inpatient care. (Id.). In support of these contentions, the ALJ cited to various treatment notes and mental status examinations from 2011 to 2018. (See id.).
First, the ALJ's characterization of Plaintiff's mental status examinations as "normal" and "unremarkable" is not supported by substantial evidence. As the ALJ recognized, Plaintiff's mental status examinations overall indicated she was well-groomed and dressed, cooperative, alert and oriented, with linear thinking and intact memory and concentration. (See, e.g., AR 528, 535, 550, 560, 569, 580). Indeed, many mental status examinations indicated she had a euthymic mood, an appropriate affect, fair insight and judgment, and no suicidal ideation. (See, e.g., AR 531, 538, 553, 557, 580). But these mental status examinations must be viewed in the context of Plaintiff's overall medical record, which also contains numerous mental status examinations observing that her mood was depressed, anxious, and irritable (see AR 492, 505, 529, 535, 541, 546, 550, 557, 560, 569, 601); her affect was depressed, blunted, and mildly reactive (see AR 498, 506, 541, 550, 557, 601); her insight and judgment were fair to poor (see AR 529, 531, 535, 538, 541, 546, 550, 553, 557, 560, 589, 601); and she had suicidal ideation (see AR 505, 535). Plaintiff's treatment notes further reflect that she experienced depressive moods and affect, suicidal ideation, paranoia, and insomnia and poor sleep at various times from 2015 to 2018. (See AR 531-532, 541, 550, 561, 574, 588, 591).
The ALJ also cited to mental status examinations prior to the relevant period, which appear to reflect that Plaintiff was largely stable and doing well. (AR 27, 369, 408, 454, 466, 488). These mental status examinations, however, are closely preceded and followed by examinations and treatment notes that observed Plaintiff with a depressed mood, a blunt or bland affect, psychotic symptoms, mood lability, and suicidal ideation. (See AR 410, 418, 442, 444, 448, 460, 470, 473). --------
Thus, even though Plaintiff experienced periods with "normal" mental status examinations, her cumulative medical record reflects positive mental status examinations and findings that support Dr. Burdick's assessed limitations. See Garrison, 759 F.3d at 1017 (regarding mental health issues, "[c]ycles 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"); Holohan, 246 F.3d at 1205 ("[The treating physician's] statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace.").
Second, the ALJ's finding that Plaintiff "reported feeling better with treatment" is not supported by substantial evidence. The ALJ referenced Plaintiff's inpatient psychiatric care as an example of how her symptoms resolved with treatment. (AR 26-27). Plaintiff sought inpatient care for suicidal thoughts in 2012 and 2013, before the relevant period, after which she reported feeling better. (AR 422, 515-22). But inpatient care did not effectively control her symptoms. She continued to report depressive symptoms, irritability, anxiety, and suicidal ideation from 2012 through 2018, even while taking medication. (See, e.g., AR 424, 459, 470, 473, 505-06, 528, 531-32, 535, 550, 592). The ALJ also pointed to treatment notes in 2016 and 2017 where Plaintiff reported feeling "fine," "alright," and "not really depressed" as evidence that Plaintiff improved with treatment. (AR 27, 531, 538, 557). But these reports lose significance when viewed in the context of the entire treatment note. For example, Dr. Burdick increased Plaintiff's dose of Celexa for depression despite her reporting that she felt "alright" in May 2017, and at the same time Plaintiff reported feeling "fine" in September 2017, she also reported experiencing suicidal thoughts in the preceding weeks. (AR 531-32, 538-39).
Rather, Plaintiff's medical record reflects that she was diagnosed with major depressive disorder, recurrent, moderate to severe, which required consistent psychiatric treatment through Plaintiff's date last insured. (See, e.g., AR 530, 536, 547, 561, 570, 581, 591, 603). Although Plaintiff experienced some periods of improvement and stability while on medication, Dr. Burdick frequently changed or increased the dose of her depression and anxiety medications, including Wellbutrin, Celexa, Topamax, and Abilify, due to fluctuations in her symptoms and mood throughout the relevant period. (See, e.g., AR 536, 539, 547, 551, 570, 574, 581). Therefore, the Court cannot find that Plaintiff's treatment history is substantial evidence that contradicts Dr. Burdick's opined assessments. See Garrison, 759 F.3d at 1017; see also Lambert v. Berryhill, 2017 WL 2294281, at *5-6 (C.D. Cal. May 24, 2017) (ALJ erred by "isolating and taking out of context a small quantum of evidence of partial improvement in plaintiff's depression to discredit" the treating physician's opinion).
Finally, to the extent that the ALJ relied on Plaintiff's ability to communicate complaints to her providers, manage her sobriety, and attend appointments as objective medical evidence that was inconsistent with Dr. Burdick's opinion, these reasons fail. Plaintiff should not be penalized for communicating with providers about her mental health or trying to manage her sobriety, and the ALJ does not explain how doing so had any bearing on her ability to perform activities within a schedule and maintain regular attendance or complete a normal workday and workweek without interruption from psychologically-based symptoms. (See AR 26-27, 30). Moreover, Plaintiff had more difficulty timely attending medical appointments than the ALJ indicated. Plaintiff either did not show up entirely to appointments, showed up late, or called to cancel on the same day as her appointment on several occasions during the relevant period, and she did not see Dr. Burdick for approximately eight months when she left the state seemingly without telling her providers. (AR 529, 544, 560, 563, 565, 567-68, 575). Thus, Plaintiff's attempts to manage her treatment and appointments do not undermine Dr. Burdick's assessments about Plaintiff's limitations.
Accordingly, the ALJ's finding that the objective medical evidence was inconsistent with Dr. Burdick's opinion was not supported by substantial evidence.
b. Activities of Daily Living
Plaintiff further contends that the ALJ erred by finding that Dr. Burdick's assessments were inconsistent with Plaintiff's activities of daily living. (Joint Stip. at 19-24). An inconsistency between a treating physician's opinion and a claimant's daily activities is a specific and legitimate reason to discount the treating physician's opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Specifically, the ALJ found that Plaintiff's activities of daily living that reflect a "higher level of functioning" than assessed by Dr. Burdick include remaining independent in her care, caring for her young child, managing treatment, managing appointments, complying with program and court requirements, seeking out and obtaining employment, communicating with providers and others, and participating in groups and other programs. (AR 29-30). He also indicated that she was able to manage her sobriety and seek treatment when she did relapse. (AR 30).
Here, the ALJ erred by failing to explain anywhere in his opinion how the daily activities he identified contradict Dr. Burdick's limitations that Plaintiff cannot perform within a schedule, maintain regular attendance, and complete a normal workday and workweek without interruption. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (ALJ erred when he failed to explain why the claimant's daily activities were inconsistent with the doctor's opinion). Nevertheless, a review of Plaintiff's activities of daily living and the context in which they were performed demonstrates that the ALJ's finding is not supported by substantial evidence.
In her Function Report, Plaintiff reported showering and dressing herself and her young son daily, cleaning and doing laundry, going to the store once a week, using public transportation, and managing some of her finances while living in a shelter. (AR 305-07). Plaintiff, however, relied on the shelter for her meals and reminders about chores, and she received childcare help from the shelter and her mother. (AR 93-95, 101, 305-06, 538). Plaintiff reported spending most days in her room and having a difficult time getting out of bed when her depression worsens. (AR 99-100, 304). She attended shelter classes and worked part-time in a shelter thrift shop at certain points during the relevant period, but she left the shelter where she lived when she completed the Function Report because she had "difficulty with the structure of the center and began to feel overwhelmed by the demands of the program." (AR 305, 503, 538, 550, 553, 558, 577-78, 611). Although she occasionally sought out employment and worked full-time, she reported that she was fired from a job after two weeks because she got into an argument with her boss and she quit another job after less than two months because "she felt overwhelmed physically and mentally." (AR 310, 550, 588, 590, 531). Finally, as discussed above, Plaintiff was able to communicate with providers and generally manage her sobriety, but she did not always timely attend appointments and required reminders from the shelter about taking her medications. (AR 306, 529, 544, 563, 565, 567-68, 575, 600).
The fact that Plaintiff was able to perform some daily activities is not necessarily inconsistent with her inability to perform a work schedule and maintain regular attendance or complete a normal workday and workweek without interruptions. See 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. One does not need to be 'utterly incapacitated' in order to be disabled.") (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). This is particularly the case given that Plaintiff performed many of the daily activities identified by the ALJ while living in a shelter that encouraged a routine and outside of the demands of full-time work. (See AR 310). When Plaintiff did try to perform daily activities within a regular routine outside of the shelter, such as working full-time, she reported becoming overwhelmed. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) ("The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons . . . , and is not held to a minimum standard of performance, as she would be by an employer.") (cited with approval in Garrison, 759 F.3d at 1016). Therefore, the ALJ's finding that Plaintiff's activities of daily living were inconsistent with Dr. Burdick's opined limitations was not supported by substantial evidence. C. Remand Is Warranted
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where, as here, the circumstances of the case suggest that further administrative review could remedy the Commissioner's errors, remand is appropriate. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81.
Since the ALJ failed to properly assess Dr. Burdick's opinion as a treating source, remand is appropriate. Because outstanding issues must be resolved before a determination of disability can be made, and "when the record as a whole creates serious doubt as to whether the [Plaintiff] is, in fact, disabled within the meaning of the Social Security Act," further administrative proceedings would serve a useful purpose and remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (citations omitted).
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 14, 2021
/s/_________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE