Opinion
Case No. EDCV 14-0585-JPR
05-20-2015
RONALD JAMES SULIIN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security supplemental security income ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed January 23, 2015, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is reversed and this action is remanded for further proceedings.
II. BACKGROUND
Plaintiff was born on April 18, 1963. (Administrative Record ("AR") 253, 283.) He completed part of the 12th grade and previously managed his own concrete-pump business and operated concrete-placement pumps. (AR 49-52, 94-95.)
Plaintiff was granted SSI benefits on the basis of mental disability, but they were terminated upon his incarceration. (See AR 32, 40; see also AR 95 (Plaintiff testifying that he was incarcerated in 2006 and 2007 for grand theft).) On November 5, 2008, Plaintiff again sought SSI benefits, alleging disability beginning October 1, 2008. (AR 129.) In a decision dated October 22, 2010, an ALJ found that Plaintiff suffered from severe impairments of mood disorder, anxiety disorder, personality disorder, and history of polysubstance abuse but was not disabled by those impairments. (AR 131, 136.)
On December 13, 2010, Plaintiff again filed an application for SSI benefits, alleging that he had been unable to work since November 3, 2010, because of "Manic depression," "bipolar," "ptsd," "lower back pain," and "hip and leg pain." (AR 253-61, 287.) After Plaintiff's application was denied, he requested a hearing before an ALJ. (AR 164-66.) Hearings were conducted on April 4 and November 8, 2012. (AR 29-59, 60-90.) On each occasion, Plaintiff, who was represented by counsel, testified, as did a vocational expert. (See AR 30, 61.) In a written decision issued November 21, 2012, the ALJ determined that Plaintiff was not disabled. (AR 13-28.) On February 1, 2014, the Appeals Council denied Plaintiff's request for review. (AR 1-6.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
An ALJ follows a five-step sequential evaluation process to assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 416.920(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal one in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, he is not disabled and the claim must be denied. § 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. § 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 3, 2010, the application date. (AR 15.) At step two, she found that Plaintiff had the severe impairments of "depression; anxiety; bipolar disorder; posttraumatic stress disorder (PTSD); attention deficit hyperactivity disorder (ADHD); chronic low back pain; and a history of polysubstance abuse with Methadone treatment." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 16.) At step four, she found that Plaintiff had the RFC to perform medium work with additional limitations:
[T]he claimant can lift and/or carry 50 pounds occasionally and 25 pounds frequently; he can stand and/or walk for six hours out of an eight-hour workday with regular breaks; he can sit for six hours out of an
eight-hour workday with regular breaks; he is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; he can frequently perform postural activities; he cannot climb ladders, ropes, or scaffolds; he cannot work at unprotected heights, around moving machinery, or around other hazards; he is limited to nonpublic, unskilled work; he cannot perform work requiring hypervigilence [sic] or intense concentration on a particular task, meaning the claimant cannot be off task for even the briefest amount of time like watching a surveillance monitor or where safety might be an issue; he cannot perform fast paced production or assembly line type work; and the claimant will likely be off task up to 10 percent of the workday or work week, which is about 48 minutes a day or 4 hours a week due to psychological symptoms and side effects of medications.(AR 17.) Although the ALJ found that Plaintiff was unable to perform his past relevant work, she concluded, based on the testimony of the VE, that he could perform jobs existing in significant numbers in the economy. (AR 22-23.) She therefore found Plaintiff not disabled. (AR 23.)
V. DISCUSSION
Plaintiff contends that the ALJ erred in (1) assessing medical-opinion evidence of the severity of his mental impairments, (2) rejecting the recommended limitation to simple tasks, and (3) relying on the testimony of the VE. (J. Stip. at 5.) Because the ALJ failed to provide specific and legitimate reasons for discounting the medical-opinion evidence and rejecting the limitation to simple tasks, remand is warranted.
A. The ALJ Failed to Give Adequate Reasons for Discounting the Medical-Opinion Evidence
1. Applicable law
Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did neither. Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than that of an examining physician, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id.
This is true because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. § 416.927(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. § 416.927(c)(2)-(6).
When a treating or examining physician's opinion is not contradicted by other evidence in the record, it may be rejected only for "clear and convincing" reasons. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When a treating or examining physician's opinion is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id. The weight given an examining physician's opinion, moreover, depends on whether it is consistent with the record and accompanied by adequate explanation, among other things. § 416.927(c)(3)-(6).
2. Relevant background
a. Examining psychiatrist Romualdo Rodriguez
On December 16, 2010, psychiatrist Romualdo Rodriguez examined Plaintiff on behalf of the agency. (See AR 343-49.)
Plaintiff reported that he suffered PTSD, bipolar disorder, and depression and "endorsed symptoms of ADHD," with which he was diagnosed at age 25. (AR 343-44.) He stated that he could not keep a job because of his ADHD symptoms. (AR 343; see also AR 344 (describing symptoms).) Plaintiff said that he was adopted following his parents' suicide and was troubled by memories of sexual abuse by a cousin and by PTSD following a fatal car accident. (AR 344.) He was psychiatrically hospitalized twice at age 34 and had taken psychiatric medication, although not in the previous seven months. (Id.) Plaintiff reported a history of substance abuse, especially heroin and cocaine, but said he had been drug-free for a year and attended support groups. (Id.; see also AR 345.) He reported 10 arrests, for drug possession and grand theft auto, and said he was released from prison most recently in 2005. (AR 345. But see AR 95 (testifying to incarceration from 2006 to 2007).) He reported last working in 1997. (AR 345.)
Plaintiff stayed with friends and family or in a tent; could leave home alone; received rides from others; ran errands, shopped, cooked, and made snacks; participated in household chores; could handle cash and pay bills; and bathed and dressed himself. (Id.) He described a poor to good relationship with family, friends, and others. (Id.)
Dr. Rodriguez found Plaintiff genuine and truthful and noted no evidence of psychomotor agitation or retardation. (Id.) He noted Plaintiff's coherent and organized thought processes and relevant, nondelusional thought content. (AR 346.) Plaintiff denied hallucinations. (Id.) He was depressed in mood and sad but not tearful in affect. (Id.) His speech was normal and his intelligence appeared "at least average." (Id.) Plaintiff could remember four digits forward and one backward, three items immediately, and one of three items after five minutes; he also volunteered that President Kennedy was "murdered by the CIA." (Id.) Plaintiff knew the names of the President and Governor and the capitals of the United States and California. (Id.) He could perform serial threes and correctly complete simple math. (AR 347.) He could spell "planet" forward but had trouble spelling it backward. (Id.) Plaintiff was able to follow the conversation well but claimed not to understand a common proverb or see any similarities between a table and chair. (Id.) Dr. Rodriguez opined that Plaintiff's insight into his problems was "not totally clear" and that he "would not trust him with a lost child in a department store." (Id.)
Dr. Rodriguez diagnosed PTSD, mood disorder, ADHD, and polysubstance dependence and assessed a Global Assessment Functioning ("GAF") Score of 65. (Id.) He opined that "as long as this claimant is properly treated for bipolar disorder, PTSD, and ADHD and he abstains from drugs and alcohol, he could easily recover from his symptoms within twelve months." (AR 348.) Dr. Rodriguez found that Plaintiff was able to understand, remember, and carry out "simple one or two-step job instructions" but was unable to complete detailed and complex instructions; was slightly limited in his ability to relate to and interact with supervisors, coworkers, and the public; was moderately limited in his ability to maintain concentration, persistence, and pace; was slightly limited in his ability to adapt to the stresses common to a work environment; was slightly limited in his ability to maintain regular workplace attendance and perform work activities on a consistent basis; and was slightly limited in his ability to perform work activities without special or additional supervision. (AR 348-49.)
A GAF score of 61 to 70 indicates mild symptoms or difficulty in social, occupational, or school functioning. See Diagnostic and Statistical Manual of Mental Disorders 34 (revised 4th ed. 2000). The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pts. 404 and 416) (GAF score "does not have a direct correlation to the severity requirements in our mental disorders listings"), and the most recent edition of the DSM "dropped" the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012).
b. State-agency physicians
On December 28, 2010, state-agency psychiatrist Ansar Haroun completed a Mental Residual Functional Capacity Assessment, in which he found Plaintiff moderately limited in carrying out detailed instructions, maintaining attention and concentration for extended periods, and interacting appropriately with the general public but deemed him not significantly limited in other areas, including the ability to understand, remember, and carry out very short and simple instructions. (AR 325-27.) The same day, Dr. Haroun completed a Psychiatric Review Technique (see AR 328-39), apparently based on Dr. Rodriguez's examination (see AR 338, 340-42). Dr. Haroun noted medically determinable impairments of ADHD, mood disorder, PTSD, and polysubstance dependence. (AR 329-34.) He noted moderate limitation in social functioning and maintaining concentration, persistence, or pace; mild limitation in activities of daily living; and no episodes of decompensation. (AR 336.) He opined that Plaintiff's RFC should include limitations to nonpublic work and simple, repetitive tasks. (AR 338, 342.)
On August 30, 2011, state-agency physician Balson completed a Chavez AR Case Worksheet, comparing records from Plaintiff's previous SSI application against his existing case file, including June 2009 records from the San Diego Psychiatric Hospital, Dr. Rodriguez's examination, and Plaintiff's failure to appear for his internal-medicine consulting exam. (AR 350-51.) Dr. Balson found "no new limitations" and recommended affirmance of "the original decision." (AR 351.)
Dr. Balson's first name is not indicated in the record.
c. Examining psychologist Kathy Vandenburgh
On May 9, 2012, Kathy Vandenburgh, a doctor of psychology, examined Plaintiff on behalf of the agency. (AR 395-403.)
Plaintiff reported increasing auditory hallucinations since 2004. (AR 397.) He reported that he had been psychiatrically hospitalized "several" times, including four hospitalizations for suicide attempts. (Id.) Plaintiff said that he worked for one week cleaning up damaged houses but was fired for talking to himself and acting inappropriately in the presence of homeowners. (AR 398.) He had been incarcerated from August 2011 to March 2012 for possession of stolen property and was being treated through a parolee mental-health program, including psychiatric medication and weekly counseling. (AR 397-98.) He said he had last used marijuana and crystal meth one and a half years earlier. (AR 398.)
Claimant reported that he could bathe, dress, cook, and heat food in the microwave. (Id.) He visited with family, watched TV, used the computer, and could manage his own funds. (AR 397-99.) He lived with and helped care for his mother. (AR 397, 399.) Family members did his laundry and helped with shopping and housekeeping. (AR 398-99.)
Dr. Vandenburgh reported largely normal results of Plaintiff's mental-status exam. (AR 399-400.) He was depressed and irritable, but his posture, gait, and mannerisms were normal. (AR 399.) Despite his complaints of hallucinations, Plaintiff exhibited no florid or subtle psychotic behavior. (Id.) He could recall most of his personal details but not his address, knew the date, and recalled complaints that prevented him from working. (Id.) He could recall one of three objects after three minutes. (Id.) He was able to focus on tasks, needed little supervision to persist at them, was able to recall six digits forward and four backward, and could spell "world" forward but not backward. (AR 400.) Dr. Vandenburgh found Plaintiff's fund of knowledge to be average. (Id.)
Plaintiff achieved borderline and extremely low scores on the Bender-Gestalt Test-II for visual-motor function and visual perception. (Id.) His scores on the Trail-Making Test for visual attention and task switching indicated "marked impairment." (Id.) Plaintiff's scores on the Weschler Adult Intelligence Scale IV Test indicated average verbal comprehension, low-average perceptual reasoning, low-average working memory, extremely low processing speed, and a full-scale IQ in the borderline range. (AR 401.) His performance results on the Weschler Memory Scale IV test were extremely low. (Id.) Dr. Vandenburgh found Plaintiff's scores on all administered tests to be valid. (AR 400-01.)
Dr. Vandenburgh found that Plaintiff's intellectual function was in the low-average to average range and emphasized that "[h]e complete[d] tasks extremely slowly," had extremely low memory function, and had visual-motor integration difficulties. (AR 401.) Dr. Vandenburgh noted "[p]robable" diagnoses of schizoaffective disorder, bipolar type, and heroin and crystal methamphetamine abuse, reportedly in remission. (AR 401-02.)
She opined that Plaintiff had moderate limitations in social function, no limitation in ability to understand instructions, and slight limitation in ability to sustain an ordinary routine without "sustained supervision." (AR 402.) Although Dr. Vandenburgh found that Plaintiff was "able to complete a simple repetitive task that does not involve a significant amount of memory," he would have "marked impairment keeping up with appropriate pace and persistence and completes tasks extremely slowly." (Id.) She opined that "due to symptoms of schizoaffective disorder, he will likely have marked impairment maintaining employment until he is stabilized on medication." (Id.) She also opined that his ability to complete detailed or complex tasks was markedly limited. (Id.)
Dr. Vandenburgh noted no limitations in Plaintiff's ability to concentrate for two-hour increments in order to maintain a regular work schedule. (Id.) She noted no existing limitation in his ability to avoid day-to-day hazards but opined that increased depression could create a moderate to marked impairment given Plaintiff's history of suicide attempts. (AR 403.) She opined that Plaintiff's memory impairment would possibly require that he be assisted in handling funds but that continued remission from substance abuse would "likely" enable him to manage funds in his own best interest. (Id.)
d. Examining psychiatrist Steven J. Davis
On May 24, 2012, psychiatrist Steven J. Davis completed a Mental Impairment Questionnaire on the basis of two visits with Plaintiff. (AR 406.) Dr. Davis diagnosed "Major Depression, recurrent," "Polysubstance Dependence (heroin)," "[rule out] Borderline Personality Dis[order]," and "ADHD by [history]." (Id.) He noted Plaintiff's "inconsistent attendance" and "uncertain to guarded response" to treatment. (Id.) Dr. Davis noted Plaintiff's psychiatric medications and indicated no side effects that would have implications for work. (Id.) He opined that Plaintiff was "impulsive, reckless, [and] narcissistic [with] anxiety" and deemed his prognosis "fair to poor." (Id.)
Dr. Davis indicated symptoms such as loss of interest in activities, impaired impulse control, unstable interpersonal relationships, maladaptive patterns of behavior, and involvement in activities with a high probability of painful consequences that are not recognized. (AR 407.) Dr. Davis opined that Plaintiff had very good ability to carry out short, simple instructions, maintain attention for two hours at a time, and adhere to basic standards of neatness and cleanliness. (AR 408-09.) Dr. Davis found limited but satisfactory ability, for example, to manage simple instructions and simple decisions; respond appropriately to supervisors; understand, remember, and carry out detailed instructions; deal with the stress of skilled or semiskilled work; maintain attendance; and be aware of normal hazards. (Id.) Dr. Davis noted serious limitations, however, in Plaintiff's ability to sustain an ordinary routine without supervision, work with or near others, perform at a consistent pace, respond appropriately to changes in a routine work setting, deal with normal work stress, interact appropriately with the public, and maintain socially appropriate behavior. (Id.) Dr. Davis opined that Plaintiff was unable to adequately remember worklike procedures or complete a normal workday and workweek without interruptions from psychological symptoms. (AR 408.)
Dr. Davis did not believe that Plaintiff had reduced intellectual functioning. (AR 409.) He opined that Plaintiff had moderate difficulties in social functioning and maintaining concentration, persistence, or pace but no restriction in activities of daily living and no recent episodes of decompensation. (AR 410.) Dr. Davis stated that Plaintiff's impairments had lasted or would last for at least 12 months, were not attributable to substance abuse, and would cause him to miss about four days of work a month. (AR 411.)
3. Analysis
Plaintiff appears to contend that the ALJ improperly relied on the opinions of the state-agency physicians over those of the examining physicians. (See J. Stip. at 9-10.) Because the ALJ failed to give specific and legitimate reasons for discounting the medical-opinion evidence, remand is warranted.
To the extent the opining doctors' findings and recommendations overlap, any departure from their opinions arguably must be supported by clear and convincing reasons. See Lester, 81 F.3d at 830. Even under the less demanding "specific and legitimate" standard, however, the ALJ's reasons fail.
As an initial matter, it is not entirely clear which of the opining doctors' findings and recommendations the ALJ accepted and which she rejected. For example, the ALJ's brief summaries of the opinions of examining doctors Vandenburgh and Rodriguez omitted significant portions of their assessments, such as Dr. Vandenburgh's intellectual-function testing (AR 400-01), and important distinctions between the doctors' assessments, such as that Plaintiff denied hallucinations to Dr. Rodriguez (AR 346) but complained of them to Dr. Vandenburgh (AR 397). (See AR 20-21.) The ALJ summarized Dr. Davis's statement as finding that Plaintiff could not work because of mental impairments (AR 21), when in fact Dr. Davis opined that Plaintiff had good or satisfactory ability to carry out many workplace functions, including simple tasks, but would require additional supervision, have moderate difficulty working with others or the public and maintaining concentration, persistence, or pace, and would deal poorly with work stress (see AR 408-10). The ALJ's brief treatment of these doctors' assessments, which offer the most thorough analyses of Plaintiff's mental impairments in the record, leave the Court guessing whether she properly considered the evidence therein. See Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam) (noting that ALJ need not discuss all evidence presented but must "explain why significant probative evidence has been rejected" (internal quotation marks omitted)); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (noting that ALJ can meet burden to give specific, legitimate reasons for discounting medical opinion "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings").
The ALJ's explanations for the weights given the examining doctors' opinions are similarly brief. Her sole reason for giving "some weight but not significant weight" to Dr. Vandenburgh's considerable findings was that the doctor appeared to have "over-relied on the claimant's subjective complaints of his auditory hallucinations, as she opined they would markedly impair him from maintaining employment." (AR 21.) The ALJ found, by contrast, that the medical evidence indicated Plaintiff's hallucinations "were generally controlled with medication treatment." (Id.)
Nothing in Dr. Vandenburgh's assessment indicates, however, that she "over-relied" on Plaintiff's complaints regarding hallucinations. Although Dr. Vandenburgh noted Plaintiff's complaints of hallucinations (AR 397), her primary concerns appeared to be Plaintiff's poor pace and memory (see AR 401-03). Moreover, although she opined that symptoms of schizoaffective disorder, bipolar type would markedly impair Plaintiff's ability to maintain employment, Dr. Vandenburgh noted that the impairment would last only until Plaintiff was "stabilized on medication." (AR 401-02.) Thus, at most, Dr. Vandenburgh may have differed from the ALJ as to whether Plaintiff's hallucinations - which the ALJ agreed "would affect his ability to function around others and maintain concentration" (AR 21) - were adequately controlled by medication as of the date of Dr. Vandenburgh's examination. The ALJ's finding that Dr. Vandenburgh overrelied on complaints of hallucinations is thus not supported by the evidence and not a specific and legitimate reason for significantly discounting her extensive findings. See Lester, 81 F.3d at 830-31 (examining doctor's opinion can be rejected only for specific, legitimate reasons supported by substantial evidence). Nor did the ALJ proffer any other reason.
Because Dr. Vandenburgh elicited from Plaintiff information he did not disclose to other examining doctors (see, e.g., AR 397-98 (Plaintiff noting several hospitalizations, history of suicide attempts, and recent incarceration)), performed more extensive testing than the other examining doctors, and found evidence of different and more severe mental impairments than her peers, it was particularly important that the ALJ give specific and legitimate reasons for rejecting Dr. Vandenburgh's findings. Cf. Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (error under either "clear and convincing" or "specific and legitimate reasons" standards to reject examining psychologist's report on ground that it was contradicted by less extensive report). Yet the ALJ's summary of Dr. Vandenburgh's findings failed to discuss those with respect to Plaintiff's intellectual function, for instance, or her particular concern with pace and memory. (See AR 20-21.)
The ALJ gave a similarly abbreviated explanation for the weight given to Dr. Rodriguez's opinion. (See AR 21.) The ALJ gave his opinion "significant weight" because she found his opinion that Plaintiff was moderately limited in maintaining concentration and attention to be supported by the objective medical evidence, "in light of the claimant's history of auditory hallucinations and depression." (Id.) Notably, Plaintiff denied hallucinations in his examination by Dr. Rodriguez (AR 346), and it is unclear what information the doctor had about Plaintiff's history of hallucinations (see AR 344-46). Dr. Rodriguez diagnosed Plaintiff with neither hallucinations nor, specifically, depression. (See AR 347-48 (diagnosing PTSD, mood disorder, ADHD, and substance dependence and recommending treatment for them and bipolar disorder).) Nor did the ALJ address any of Dr. Rodriguez's other findings, such as that Plaintiff could manage only "simple one or two-step job instructions" (AR 348), or explain which of his findings were discounted and why. (See AR 20); Vincent, 739 F.2d at 1394-95; Magallanes, 881 F.2d at 751.
The ALJ's flat rejection of Dr. Davis's opinion was also inadequately supported. She found his opinion inconsistent with his own findings, which she described as "generally benign." (AR 21.) As the ALJ noted, however, on the first of Dr. Davis's two opportunities to examine Plaintiff, Dr. Davis described Plaintiff as "manipulative," "impulsive, reckless, narcissistic and sociopathic," with good cognitive function but poor judgment, and he indicated a need to rule out borderline personality disorder with "pronounced sociopathic features." (AR 20; see AR 405.) Such findings are neither benign nor indicative of capacity for workplace function. The ALJ further found Dr. Davis's opinion of Plaintiff's limitations not credible because it was prepared "in anticipation of litigation." (AR 21.) An ALJ may not, however, reject a doctor's medical opinion on the basis that it was prepared in support of the claimant's application for benefits. Lester, 81 F.3d at 832 ("The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them."); accord Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 n.5 (9th Cir. 2004).
That Dr. Davis had only two opportunities to examine Plaintiff (see AR 406), while a valid basis for characterizing him as an examining rather than a treating physician (see §§ 416.902, 416.927(c)(2)(i)), merely places him on similar footing to Drs. Rodriguez and Vandenburgh (and above the state-agency physicians) in terms of his "longitudinal history of treating the claimant" (AR 21). And although the fact that a doctor's opinion is submitted in a "checklist-style" form is a valid basis for discounting his opinion, Batson, 359 F.3d at 1195 (affirming opinion giving "minimal weight" to opinions expressed in form of checklist), it is noteworthy that Dr. Davis appears to have provided additional notes (which were not included in the record) (see AR 406 (stating, "see attached note"), 411 (same)), calling into question the ALJ's finding that he gave "minimal effort" to the task (AR 21). In all, the ALJ did not identify specific, legitimate reasons for rejecting Dr. Davis's opinion. Carmickle, 533 F.3d at 1164; Lester, 81 F.3d at 830-31.
Finally, although the ALJ gave "great weight" to the opinions of the state-agency physicians because they had an opportunity to review "all of the medical evidence" (AR 21), in fact neither state-agency examiner appears to have reviewed Dr. Vandenburgh's assessment, Dr. Davis's assessment, or records from the San Diego County Sheriff's Department, TeleCare San Diego, San Diego Mental Health Services, or Riverside County Department of Mental Health (see AR 338, 340-41, 350-51). Moreover, the ALJ deemed the state-agency doctors' opinions to be "generally supported by the evidence" insofar as they found that Plaintiff should be "limited . . . to simple and repetitive work in a nonpublic setting" (AR 21; see AR 351 (Dr. Balson recommending mental RFC for simple, repetitive tasks); AR 338 (Dr. Haroun limiting Plaintiff to nonpublic work involving simple, repetitive tasks)), but the ALJ did not adopt that restriction in the RFC (see AR 17). Nor did she explain why this finding entitled the state-agency physicians' opinions to "great weight" while essentially the same finding by Drs. Rodriguez and Vandenburgh did not merit such weight. (See AR 348 (Dr. Rodriguez opining that Plaintiff could understand, remember, and carry out "simple one or two-step job instructions"); AR 402 (Dr. Vandenburgh opining that Plaintiff could "complete a simple repetitive task that does not involve a significant amount of memory" but would do so "extremely slowly").)
Rather than limiting Plaintiff to simple, repetitive tasks, the ALJ restricted him to "unskilled work." (AR 17.) "Unskilled work" and "simple, repetitive tasks" are terms of art and apply to different limitations. See SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000) (unskilled work indicates job whose specific-vocational-preparation requirement is at level 1 or 2, requiring no more than 30 days to learn); Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005) (noting that "the SVP level in a DOT listing indicating unskilled work, does not address whether a job entails only simple, repetitive tasks," which is "more squarely addressed by the GED [reasoning level] ratings" (alteration in original, internal quotation marks omitted)). Because it is not clear from the decision upon what basis the ALJ restricted Plaintiff to unskilled work rather than simple, repetitive tasks, the Court cannot say that the RFC was supported by substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In sum, because the ALJ failed to provide specific and legitimate reasons for her treatment of the medical-opinion evidence, including the limitation to simple tasks, reversal is warranted. On remand, the ALJ should specify the bases upon which she weighs the medical-opinion evidence. Because any amendment to Plaintiff's RFC may require that the ALJ reconsider the VE's testimony, the Court does not reach the issue raised in the Joint Stipulation concerning that testimony.
The ALJ also adopted specific limitations barring Plaintiff from jobs requiring "intense concentration," "hypervigil[a]nce," and "fast paced production or assembly line type work," presumably in keeping with the findings of Drs. Rodriguez, Vandenburgh, and Haroun. (AR 17; see AR 336, 348, 402.)
Plaintiff notes that a limitation to simple, repetitive tasks would not permit employment in the mail-clerk position identified by the VE. (J. Stip. at 22); see AR 23; DOT 209.687-026 (mail clerk, reasoning level 3), available at 1991 WL 671813; see Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (finding "an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning"). Such a restriction would, however, likely be consistent with the level-2 reasoning required of the industrial-cleaner and office-helper positions. See DOT 239.567-010 (office helper, reasoning level 2), available at 1991 WL 672232; DOT 381.687-018 (industrial cleaner, reasoning level 2), available at 1991 WL 673258; Lara v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008); Etter v. Astrue, No. CV 10-582-OP, 2010 WL 4314415, at *4 (C.D. Cal. Oct. 22, 2010).
B. Remand for Further Proceedings Is Appropriate
When, as here, an ALJ errs in denying benefits, the Court generally has discretion to remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). When no useful purpose would be served by further administrative proceedings, however, or when the record has been fully developed, it is appropriate under the "credit-as-true" rule to direct an immediate award of benefits. See id. at 1179 (noting that "the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"); Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014).
Under the credit-as-true framework, three circumstances must be present before the Court may remand to the ALJ with instructions to award benefits:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison, 759 F.3d at 1020. When, however, the ALJ's findings are so "insufficient" that the Court cannot determine whether the rejected testimony should be credited as true, the Court has "some flexibility" in applying the credit-as-true rule. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also Garrison, 759 F.3d at 1020 (noting that Connett established that credit-as-true rule may not be dispositive in all cases). This flexibility should be exercised "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act." Garrison, 759 F.3d at 1021.
Here, under Connett, remand for further proceedings is appropriate because the ALJ failed to provide specific and legitimate reasons for discounting the medical-opinion evidence, yet the Court has doubts as to whether Plaintiff is in fact disabled given that he could possibly work performing simple tasks.
VI. CONCLUSION
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. DATED: May 20, 2015
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."
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/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge