Bakarich v. Colvin

Filing 21

ORDER, the Commissioners' decision is vacated and this matter is remanded to the Commissioner for further administrative proceedings consistent with this Order; the Clerk shall enter judgment accordingly and terminate this case. Signed by Magistrate Judge John Z Boyle on 3/30/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stephanie Bakarich,

No. CV-13-02620-PHX-JZB
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Plaintiff Stephanie Bakarich seeks review of the Social Security Administration

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Commissioner’s decision denying her social security benefits under the Social Security

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Act.

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Commissioner’s decision and remand this matter for further proceedings.

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I.

(Doc. 1; Doc. 13.)

For the reasons below, the Court will reverse the

Background

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On December 2, 2010, Plaintiff filed an application for supplemental security

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income (SSI) benefits under Title XVI of the Social Security Act. (AR1 559-66.) In

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April 2011, Plaintiff filed an application for disability insurance (DI) benefits under Title

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II of the Act.2 (Id. at 79-80.) In both Applications, Plaintiff asserts disability beginning

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Citations to “AR” are to the administrative record.

Plaintiff previously filed applications for SSI and DI benefits in 2005. (Id. at 575-86.)
The Social Security Administration denied Plaintiff’s DI benefits application, but granted
Plaintiff SSI benefits on January 30, 2006. (Id. at 38.) The Social Security
Administration terminated Plaintiff’s SSI benefits on May 1, 2007, because Plaintiff was
incarcerated. (Id.)

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on October 14, 1998.3 (Id. at 79-81, 559.) Plaintiff’s applications were initially denied

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on April 11, 2011, and her DI application was denied upon reconsideration. (Id. at 47-51,

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53-55, 569-73.)

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Subsequently, both applications were set for a hearing. (Id. at 58-60.) In a decision dated

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January 30, 2013, Administrative Law Judge (ALJ) Paula Fow denied Plaintiff’s

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applications for benefits. (Id. at 20-29.) On June 7, 2013, the Appeals Council denied

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Plaintiff’s request for review of the ALJ’s decision, making the ALJ’s decision the final

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decision of the Commissioner of the Social Security Administration. (Id. at 11-14.)

On August 4, 2011, Plaintiff requested a hearing.

(Id. at 56.)

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Having exhausted the administrative review process, on December 23, 2013,

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Plaintiff sought judicial review of the ALJ’s decision by filing a Complaint in this Court

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pursuant to 42 U.S.C. § 405(g). (Doc. 1.) On May 9, 2014, Plaintiff filed an Opening

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Brief, seeking remand of this case to the Social Security Administration for an award of

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benefits. (Doc. 13.) On July 9, 2014, Defendant filed a Response Brief in support of the

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Commissioner’s decision. (Doc. 16.) On September 4, 2014, Plaintiff filed a Reply

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Brief. (Doc. 17.) On February 12, 2015, Defendant filed a Notice of Supplemental

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Authority, arguing that the Ninth Circuit’s decision in Treichler v. Comm’r of SSA, 775

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F.3d 1090 (9th Cir. 2014), requires the Court to remand for further proceedings, instead

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of for an award of benefits, should the Court find reversible error. (Doc. 19.) Plaintiff

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filed a Response on February 25, 2015, arguing that Plaintiff is disabled and an award of

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benefits is appropriate even under the Court’s holding in Treichler. (Doc. 20.)

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Plaintiff claims that prior to the administrative hearing, she amended her alleged onset
date to December 2, 2010 and, therefore, the ALJ should not have considered records
prior to that date. (Doc. 13 at 5 n.1.) However, as Plaintiff notes, there is no such motion
included in the record. Further, Plaintiff testified at the hearing that the onset date was
“about 1998” or 1999. (Id. at 616.) SSI benefits are not payable prior to the month
following the month in which the application was filed. See 20 C.F.R. § 416.335. But,
because Plaintiff filed applications for both DI and SSI benefits and alleged an onset date
in October 1998, the ALJ did not generally err in considering medical evidence in the
record prior to December 2, 2010. See 20 C.F.R. § 416.912(d). The Court will address
the ALJ’s treatment of the record evidence more specifically in its analysis below.
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II.

Legal Standards
a. Standard of Review

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The Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of the

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Commissioner’s disability benefits determinations. The Court may set aside the

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Commissioner’s disability determination only if the determination is not supported by

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substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

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2007); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “‘Substantial evidence’

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means more than a mere scintilla, but less than a preponderance; it is such relevant

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evidence as a reasonable person might accept as adequate to support a conclusion.”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see also Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998).

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In determining whether substantial evidence supports the ALJ’s decision, the

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Court considers the record as a whole, weighing both the evidence that supports and that

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which detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala,

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999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts,

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ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court “must

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uphold the ALJ’s decision where the evidence is susceptible to more than one rational

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interpretation.” Andrews, 53 F.3d at 1039. “However, a reviewing court must consider

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the entire record as a whole and may not affirm simply by isolating a ‘specific quantum

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of supporting evidence.’” Orn, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466

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F.3d 880, 882 (9th Cir. 2006)). The Court reviews only those issues raised by the party

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challenging the ALJ’s decision.

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2001). Similarly, the Court reviews “only the reasons provided by the ALJ in the

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disability determination and may not affirm the ALJ on a ground upon which he did not

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rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

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See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir.

b. The ALJ’s Five-Step Evaluation Process
To be eligible for Social Security benefits, a claimant must show an “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42

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U.S.C. § 423(d)(1)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A

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person is under a disability only:

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if his physical or mental impairment or impairments are of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A).
The ALJ follows a five-step evaluation process to determine whether an applicant
is disabled under the Social Security Act:

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The five-step process for disability determinations begins, at
the first and second steps, by asking whether a claimant is
engaged in “substantial gainful activity” and considering the
severity of the claimant’s impairments. See 20 C.F.R. §
416.920(a)(4)(i)-(ii). If the inquiry continues beyond the
second step, the third step asks whether the claimant’s
impairment or combination of impairments meets or equals a
listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the
duration requirement. See id. § 416.920(a)(4)(iii). If so, the
claimant is considered disabled and benefits are awarded,
ending the inquiry. See id. If the process continues beyond
the third step, the fourth and fifth steps consider the
claimant’s “residual functional capacity” in determining
whether the claimant can still do past relevant work or make
an adjustment to other work. See id. § 416.920(a)(4)(iv)-(v).

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Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). “The burden of proof is on the

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claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v.

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Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

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Applying the five-step evaluation process, the ALJ found that Plaintiff is not

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disabled and is not entitled to benefits. (Id. at 29.) At step one, the ALJ found that

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Plaintiff has not engaged in substantial gainful activity since the alleged onset date. (Id.

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at 23.)4 At step two, the ALJ found that Plaintiff has the following severe impairments:

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asthma, chronic obstructive pulmonary disease (COPD), spina bifida occulta, bipolar

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disorder, obsessive compulsive disorder (OCD), borderline personality disorder, and

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substance abuse, in remission. (Id.) At step three, the ALJ determined that Plaintiff does

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not have an impairment or combination of impairments that meets or medically equals an

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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 23-24.)

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At step four, the ALJ found the following:

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[Plaintiff] has the [RFC] to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b). However, [Plaintiff]
would be limited to occupations requiring no more than
simple, routine, and repetitive tasks, not performed in a fastpaced production environment and involving relatively few
work place changes.

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(Id. at 24.) The ALJ further found that Plaintiff has “no past relevant work.” (Id. at 28.)

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At step five, the ALJ found that jobs exist in significant numbers in the national economy

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that Plaintiff can perform. (Id.) Given that finding, the ALJ concluded that Plaintiff is

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not disabled under sections 216(i), 223(d), or 1614(a)(3)(A) of the Social Security Act.

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(Id. at 29.)

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III.

Analysis

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As an initial matter, Plaintiff appears to contend that only her application for SSI

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benefits was before the ALJ. (Doc. 13 at 2, 5.) However, as detailed above, the record

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includes two applications, one filed on December 2, 2010 for SSI benefits, and one filed

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on April 11, 2011 for DI benefits, and the ALJ considered and made decisions regarding

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both applications. Plaintiff asserts that “[t]he ALJ noted the claim is for SSI benefits at

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hearing. TR 589.” (Id.) But, in the record to which Plaintiff cites, the ALJ actually states

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that the proceeding “involve[d] applications for Supplemental Security Income and

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Disability Insurance Benefits.”

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briefing, Plaintiff only addresses the ALJ’s treatment of her SSI application related to her

(Id. at 589) (emphasis added).

Regardless, in her

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With regard to Plaintiff’s claim for DI benefits, the ALJ also found that Plaintiff “meets
the insured status requirements of the Social security Act through September 30, 2001.”
(Id. at 22.)
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mental impairments. Therefore, the Court will only review those issues here.

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Plaintiff argues that the ALJ’s decision is defective for four reasons: (1) the ALJ

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erroneously weighed medical source evidence; (2) the ALJ improperly evaluated

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Plaintiff’s credibility and discounted her testimony; (3) the ALJ improperly evaluated

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third-party testimony by Plaintiff’s mother; and (4) the ALJ failed to consider Plaintiff’s

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social limitations. The Court addresses these arguments below.

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a. Weighing of Medical Source Evidence

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Plaintiff argues that the ALJ erred in weighing the opinions of Dr. Sharon

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Steingard, examining physician, and a state agency, non-examining source. (Doc. 13 at

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4-5.) Plaintiff further argues that the ALJ erred in her treatment of Plaintiff’s May 3,

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2011 serious mental illness (SMI) benefits eligibility determination. Below, the Court

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addresses these arguments.

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i. Legal Standard

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The Ninth Circuit distinguishes between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating

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physician’s opinion and more weight to the opinion of an examining physician than to

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one of a non-examining physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R.

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§ 404.1527(c)(2)-(6). If it is not contradicted by another doctor’s opinion, the opinion of

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a treating or examining physician can be rejected only for “clear and convincing”

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reasons. Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.

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1988)). “If a treating or examining doctor’s opinion is contradicted by another doctor’s

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opinion, an ALJ may only reject it by providing specific and legitimate reasons that are

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supported by substantial evidence.”

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Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).

Garrison, 759 F.3d at 1012 (quoting Ryan v.

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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir. 1986). But “[t]he ALJ must do more than offer his conclusions. He must set forth

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his own interpretations and explain why they, rather than the doctors’, are correct.”

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Embrey, 849 F.2d at 421-22. “The opinion of a non-examining physician cannot by itself

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constitute substantial evidence that justifies the rejection of the opinion of either an

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examining or a treating physician.” Lester, 81 F.3d at 831 (emphasis in original)

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(citations omitted).

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ii. Dr. Sharon Steingard’s Opinions

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Plaintiff argues that the ALJ erred in failing to give the opinions of Dr. Steingard

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“controlling weight.” (Doc. 13 at 4-5.) Dr. Steingard examined Plaintiff on March 7,

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2011.

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alertness, her gait was unremarkable, facial expression was variable, eye contact was

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good, but her attention span was poor and she was hyperactive. (Id. at 446.) She noted

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that Plaintiff was rocking, her feet were almost constantly moving, and she seemed

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agitated and anxious. (Id.) Her speech was unremarkable, and she did not have any

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significant depressive thought content. (Id.) She could make a simple comparison and

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her insight and judgment appeared intact. (Id.) Her score on the mini mental state exam

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was 28 out of 30. She had some trouble with more complicated directions such as the

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three step command. (Id.) She had poor general fund of information, and she could not

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comment on a recent news story. (Id.) “She did not know in what direction the sun rose.”

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(Id.) At the time of the examination, Plaintiff reported that she had been prescribed

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Xanax, Wellbutrin, and Gabapentin, but had stopped taking those medications and was

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not in “formal psychiatric care or treatment.” (Id. at 445-46.)

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(AR 442.)

During the exam, Dr. Steingard noted that Plaintiff had normal

Dr. Steingard noted in her findings that Plaintiff “gives a picture of episodes of

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mania as well as depression, panic attacks with agoraphobia.

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behaviors is vague from [Plaintiff’s] report, no repetitive behaviors were observed.” (Id.)

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Dr. Steingard further noted that Plaintiff “had difficulty focusing on tasks especially

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during the interview portion of the evaluation. She should not be managing benefits if

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deemed eligible to receive them.” (Id.) Finally, Dr. Steingard noted that Plaintiff “is not

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The extent of OCD

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currently in formal psychiatric care or treatment and is currently noncompliant with

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medication management.

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psychiatric care or treatment and consistency with medication.” (Id.)

Prognosis could be significantly improved with formal

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Based on her examination, Dr. Steingard completed a Psychological/Psychiatric

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Medical Source Statement. (Id. at 447-48.) In the Statement, Dr. Steingard opined that

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Plaintiff has limitations that will last for 12 months. (Id. at 447.) Dr. Steingard further

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opined that although Plaintiff’s score on the MMSE does not suggest cognitive

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impairment, a couple of instructions had to be repeated, “[s]he had some trouble focusing

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and would likely need a lot of extra supervision on a job and will need instructions

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repeated for different directions especially more complicated directions.” (Id. at 448.)

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Additionally, Dr. Steingard noted that Plaintiff has a “diminished ability to maintain pace

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and persistence on task in the work place,” based on Dr. Steingard’s observations during

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the exam that Plaintiff’s “concentration . . . was impaired,” “[s]he was distractable,”

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“[s]he was over inclusive,” and “[s]he appeared to be hyperactive and agitated.” (Id.)

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With regard to social interaction, Dr. Steingard opined that Plaintiff “would be

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disturbing and distracting to other supervisors and especially to the general public.” (Id.)

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Dr. Steingard further opined that Plaintiff’s dramatic presentation would “be a problem

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[in] a typical work place.” (Id.) With regard to adaptation, Dr. Steingard found that

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Plaintiff’s “[c]oncentration is poor for typical work place hazards especially for being in

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dangerous or hazardous work place environment[s].” (Id.) Dr. Steingard again noted that

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“prognosis could certainly be improved with medication management and return to

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formal psychiatric treatment with consistent care.” (Id.)

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Dr. Steingard’s opinions were contradicted by the opinions of agency psychologist

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Dr. Tawnya Brode. (Id. at 36-41.) The ALJ could, therefore, discount Dr. Steingard’s

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opinions for specific and legitimate reasons supported by substantial evidence. Lester, 81

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F.3d at 830-31.

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The Court finds that the ALJ failed to provide specific and legitimate reasons

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supported by substantial evidence for rejecting Dr. Steingard’s opinions. Specifically, the

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ALJ gave “no weight” to Dr. Steingard’s opinions because Plaintiff “was not taking her

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medication at the time of the evaluation and was not receiving continuing mental

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treatment.”

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“[p]rognosis could be significantly improved with formal psychiatric care or treatment

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and consistency with medication.” (Id. at 446.)

(Id. at 27.)

As stated above, Dr. Steingard opined that Plaintiff’s

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In her decision, the ALJ failed to address with any specificity the treatment notes

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relating to Plaintiff’s mental impairments, particularly the 2011 notes from Magellan,

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which relate to a time period subsequent to Dr. Steingard’s opinions when Plaintiff was

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taking medication and obtaining treatment. Magallanes, 881 F.2d at 751 (“The ALJ can

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meet [the specific and legitimate] burden by setting out a detailed and thorough summary

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of the facts and conflicting clinical evidence, stating his interpretation thereof, and

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making findings.”) (internal citation and quotation marks omitted). Instead, in discussing

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Plaintiff’s mental health treatment since 2004, the ALJ cited only a few examples and

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ignored many of the more recent records regarding Plaintiff’s symptoms and limitations.

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(Id. at 26.) For example, the ALJ cited to 2005 records stating that Plaintiff had “fair

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concentration, insight, and judgment.”

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Plaintiff’s 2011 treatment notes reporting that Plaintiff’s insight and judgment were either

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“limited” or “poor.” (Id. at 490, 493.)

(Id.)

However, the ALJ failed to address

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The ALJ also noted that Plaintiff’s GAF scores ranged from 45-60, but stated

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without further analysis or discussion of the record evidence that “during those periods of

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serious symptoms, the claimant was diagnosed with amphetamine abuse/dependence

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and/or opioid/narcotic medication.” (Id.) The ALJ did not address in any detail the GAF

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scores of 48 and 49 Plaintiff received in 2011. (Id. at 491, 495, 500, 534, 557.) Further,

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the ALJ did not cite to any evidence that Plaintiff was using drugs during this time, and at

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least some 2011 records state that Plaintiff has not been using since she was released

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from prison. (Id. at 493, 495, 497.) While previous records are helpful in providing a

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longitudinal picture of Plaintiff’s mental impairments and symptoms, the ALJ’s treatment

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of Dr. Steingard’s opinions is not supported by substantial evidence because the ALJ

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failed to address the most recent medical records regarding Plaintiff’s symptoms while

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she was in treatment and taking medications. See 20 C.F.R. § 416.927(c)(4) (“Generally,

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the more consistent an opinion is with the record as a whole, the more weight we will

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give that opinion.”).

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Defendant argues that there is support in the record for the conclusion that

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Plaintiff improved when she took her medication and obtained treatment subsequent to

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Dr. Steingard’s opinions. (Doc. 16 at 16.) Defendant cites to examples of records that

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could show Plaintiff improved while on medication. However, Defendant overstates

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some of these records. For example, Defendant cites to Plaintiff’s 2011 statement that

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she was “happy,” but, in the record cited by Defendant, Plaintiff stated that she is

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“happy” when she is “feeling well.” (Id.; AR 557.). Further, while some records note

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that Plaintiff could complete daily activities independently, others indicate Plaintiff has

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limitations in her ability to interact with others and struggles to leave the house due to her

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OCD. (Id. at 496, 499, 553, 557, 523.) Regardless, the ALJ did not specifically address

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or rely on any of these records. Accordingly, the ALJ failed to provide specific and

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legitimate reasons supported by substantial evidence for rejecting Dr. Steingard’s

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opinions.

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iii.

Dr. Brode’s Opinions

Plaintiff further argues that the ALJ erred in giving a non-examining source, Dr.

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Brode, “the most weight.” (Doc. 13 at 4-5.)

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Psychologist Dr. Brode completed a Mental Residual Functional Capacity Assessment

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based on her review of the record. (AR 39-41.) Dr. Brode opined that Plaintiff is able to

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understand and remember work locations and simple routines, maintain adequate

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attention and concentration, sustain a workday/workweek schedule, interact with others,

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respond to hazards, and make basic plans in a reasonably stable environment. (Id. at 41.)

On April 1, 2011, non-examining

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The ALJ stated that she gave “consideration to” Dr. Brode’s opinions. (Id. at 27.)

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She further stated that “[w]hile these opinions differ somewhat from those of the

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undersigned, they are supported by the evidence before the consultants at the time of the

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reconsidered determination. Further, the opinions are consistent with the finding herein

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that the claimant’s impairments do not prevent the performance of all work related

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activities.” (Id.) However, it is unclear from the ALJ’s decision what weight the ALJ

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gave to Dr. Brode’s opinions. Further, the ALJ failed to address Dr. Brode’s findings in

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any detail and to explain how Dr. Brode’s opinions differ from the ALJ’s findings.

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Social Security Ruling (SSR) 96-6p, 1996 SSR LEXIS 3 (findings made by state agency

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physicians must be treated as expert opinion evidence). Accordingly, the Court finds that

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the ALJ’s treatment of Dr. Brode’s opinions is not supported by substantial evidence in

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the record.

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iv.

Plaintiff’s Eligibility for SMI Benefits

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Plaintiff also asserts that the ALJ erroneously stated in her decision that

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Psychologist Christine Ketchmark, “a treating medical source, opined that [Plaintiff] did

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not meet the criteria for being severely mentally ill,” and, therefore, the ALJ’s decision is

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not supported by substantial evidence. (Doc. 13 at 7; AR 27.) A review of the relevant

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record shows that in May 2011, Dr. Ketchmark found Plaintiff did met the SMI criteria.

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(Id. at 558.) Defendant concedes that the ALJ’s assertion regarding Plaintiff’s SMI

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eligibility is incorrect, but argues that the error is harmless. (Doc. 16 at 19 n.6.)

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An ALJ’s error is harmless when such error is inconsequential to the ultimate non-

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disability determination. See Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1055 (9th Cir.

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2006); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule applies

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to review of administrative decisions regarding disability); see also Burch v. Barnhart,

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400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s error is harmless when it is “irrelevant to the

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ALJ’s ultimate disability conclusion.”).

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Here, the Court cannot find that the ALJ’s misstatement regarding Plaintiff’s SMI

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eligibility was harmless. The ALJ fails to explain the extent to which she relied on her

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mistaken belief that Plaintiff did not meet the SMI criteria.

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determination was included in more recent treatment notes than most of those notes on

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which the ALJ relied in her decision. Therefore, the Court cannot find that this error was

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Further, the SMI

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inconsequential to the ultimate non-disability determination.
b. Plaintiff’s Symptom Testimony
i. Legal Standard

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Plaintiff also argues that the ALJ erred in evaluating Plaintiff’s symptom

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testimony. (Doc. 13 at 7-9.) An ALJ engages in a two-step analysis to determine

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whether a claimant’s testimony regarding subjective pain or symptoms is credible.

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Garrison, 759 F.3d at 1014-15 (citing Lingenfelter, 504 F.3d at 1035-36). “First, the ALJ

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must determine whether the claimant has presented objective medical evidence of an

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underlying impairment ‘which could reasonably be expected to produce the pain or other

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symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947

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F.2d 341, 344 (9th Cir. 1991) (en banc)). The claimant is not required to show objective

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medical evidence of the pain itself or of a causal relationship between the impairment and

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the symptom. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Instead, the

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claimant must only show that an objectively verifiable impairment “could reasonably be

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expected to produce his pain.” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d

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at 1282); see also Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1160-61 (9th Cir. 2008)

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(“requiring that the medical impairment ‘could reasonably be expected to produce’ pain

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or another symptom . . . requires only that the causal relationship be a reasonable

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inference, not a medically proven phenomenon”).

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Second, if a claimant shows that she suffers from an underlying medical

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impairment that could reasonably be expected to produce her pain or other symptoms, the

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ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how

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the symptoms, including pain, limit the claimant’s ability to work. See 20 C.F.R. §

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404.1529(c)(1). General assertions that the claimant’s testimony is not credible are

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insufficient. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The ALJ must

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identify “what testimony is not credible and what evidence undermines the claimant’s

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complaints.” Id. (quoting Lester, 81 F.3d at 834).

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In weighing a claimant’s credibility, the ALJ may consider many factors,

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including, “(1) ordinary techniques of credibility evaluation, such as the claimant’s

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reputation for lying, prior inconsistent statements concerning the symptoms, and other

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testimony by the claimant that appears less than candid; (2) unexplained or inadequately

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explained failure to seek treatment or to follow a prescribed course of treatment; and (3)

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the claimant’s daily activities.” Smolen, 80 F.3d at 1284; see Orn, 495 F.3d at 637-39.

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The ALJ also considers “the claimant’s work record and observations of treating and

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examining physicians and other third parties regarding, among other matters, the nature,

8

onset, duration, and frequency of the claimant’s symptom; precipitating and aggravating

9

factors; [and] functional restrictions caused by the symptoms . . . .” Smolen, 80 F.3d at

10

1284 (citation omitted).

11

At this second step, the ALJ may reject a claimant’s testimony regarding the

12

severity of his or her symptoms only if the ALJ “makes a finding of malingering based on

13

affirmative evidence,” Lingenfelter, 504 F.3d at 1036 (quoting Robbins, 466 F.3d at 883),

14

or if the ALJ offers “clear and convincing reasons” for finding the claimant not credible.

15

Carmickle, 533 F.3d at 1160 (quoting Lingenfelter, 504 F.3d at 1036). “‘The clear and

16

convincing standard is the most demanding  required in Social Security Cases.’”

17

Garrison, 793 F.3d at 1015 (quoting Moore v. Soc. Sec. Admin., 278 F.3d 920, 924 (9th

18

Cir. 2002)).

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ii. The ALJ erred in evaluating Plaintiff’s symptom testimony.

20

At the administrative hearing, with regard to her mental impairments, Plaintiff

21

testified that she was unable to work because she could not focus, did not like leaving her

22

house, was scared of people, and had panic attacks. (AR 604-05). Plaintiff testified that

23

“on a good day” she does yard work, does the dishes, mops, vacuums, makes breakfast,

24

and helps the kids get ready for school. (Id. at 597.) But, on good days, Plaintiff also has

25

“OCD really bad.” (Id. at 598.) Plaintiff further testified that she cannot work in part due

26

to her OCD because it takes her longer to complete tasks than someone not suffering

27

from her condition, including leaving the house. (Id. at 607.) On a “bad day” Plaintiff

28

doesn’t “do anything. The laundry will pile up and pile up and the plants will die and the

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floors will get filthy.” (Id.) On a bad day, Plaintiff asserts she is agitated, angry,

2

impatient, and irritable, and she cries a lot or yells and then usually sleeps. (Id. at 559.)

3

Plaintiff testified that she has about three good days and four bad days a week on

4

average. (Id.)

5

The ALJ found that Plaintiff’s medically determinable impairments could

6

reasonably be expected to cause the alleged symptoms, but Plaintiff’s statements

7

concerning the intensity, persistence, and limiting effects of these symptoms are not

8

credible to the extent they are inconsistent with the ALJ’s assessed RFC. (Id. at 25.)

9

Because the ALJ did not make an affirmative finding of malingering, the ALJ was

10

required to provide clear and convincing reasons supported by substantial evidence for

11

concluding that Plaintiff’s subjective complaints regarding symptoms related to her

12

mental impairments were not wholly credible.

13

The Court finds that the ALJ failed to give sufficient reasons for discounting

14

Plaintiff’s symptom testimony. First, the ALJ noted that Plaintiff’s activities of daily

15

living were inconsistent with her allegations of disability. (AR 27.) In support, the ALJ

16

cited to Plaintiff’s statement during a 2006 mental examination that she was able to take

17

care of her activities of daily living, and her statement in 2008 that she was taking yoga

18

classes. (Id.) Although on a different page of the decision, the ALJ also cited to

19

Plaintiff’s statements that she can maintain her hygiene, make her bed, do dishes, and

20

care for pets, Dr. Steingard’s observation during her examination that Plaintiff was

21

appropriately attired and clean, and testimony by Plaintiff’s mother that Plaintiff can do

22

“chores two to three time a week for one to two hours a day with reminders.” (Id. at 23-

23

24.)

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The ALJ did not, however, discuss or make any finding regarding the amount of

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time per day that plaintiff spends engaged in daily activities. See Vertigan v. Halter, 260

26

F.3d 1044, 1050 (9th Cir. 2001) (“physical activities did not consume a substantial part of

27

Ms. Vertigan’s day. This court has repeatedly asserted that the mere fact that a plaintiff

28

has carried on certain daily activities, such as grocery shopping, driving a car, or limited

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walking for exercise, does not in any way detract from her credibility as to her overall

2

disability”); see also Garrison, 759 F.3d at 1016 (“We have repeatedly warned that ALJs

3

must be especially cautious in concluding that daily activities are inconsistent with

4

testimony about pain, because impairments that would unquestionably preclude work and

5

all the pressures of a workplace environment will often be consistent with doing more

6

than merely resting in bed all day.”). This analysis is particularly relevant here, where

7

Plaintiff asserts that the activities she is able to complete differ depending on whether it is

8

a “good” or “bad” day. The Court notes that there are other statements in Plaintiff’s 2011

9

treatment notes that could support the ALJ’s finding that Plaintiff’s daily activities are

10

inconsistent with Plaintiff’s testimony (e.g., AR 553). But, the ALJ did not address or

11

rely on any of those records in discussing Plaintiff’s testimony.

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Second, the ALJ cited inconsistencies in Plaintiff’s testimony regarding Plaintiff’s

13

desire to work, including Plaintiff’s statements that she quit working due to having kids

14

and getting married. (Id. at 27.) The ALJ cited to a similar statement during a 2006

15

mental examination, where Plaintiff reported that she “was not interested in returning to

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work at this time.”

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convincing reasons supported by substantial evidence. Plaintiff’s statement regarding her

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reason for stopping work related to her decision prior to her alleged onset date. (Id. at

19

590-91.) Further, Plaintiff’s more recent 2011 treatment notes indicate that Plaintiff

20

reports wanting to return to work. (Id. at 557.) The ALJ did not address this evidence.

(Id.)

The Court finds that these statements are not clear and

21

Third, the ALJ discounted Plaintiff’s symptom testimony because she made

22

inconsistent statements regarding the severity of her symptoms, citing to a statement by

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Plaintiff that she was “doing great, feeling alert, and happy as well as no longer taking

24

her anti-depressant medication,” and a 2005 statement that Plaintiff reported no longer

25

being hostile or angry since taking Zyprexa. (Id. at 27.) However, the records to which

26

the ALJ cited do not contain the referenced statements or are several years’ old and

27

merely isolated examples that do not capture the record as whole, particularly given that

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the ALJ failed to meaningfully address Plaintiff’s most recent 2011 treatment notes. The

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Court therefore finds that these statements by Plaintiff are not clear and convincing

2

reasons supported by substantial evidence for discounting her testimony.

3

Fourth, the ALJ noted that “during several follow up exams, the claimant reported

4

having no complications with her medication,” citing to a record from 2004 and one

5

treatment note from 2011. (Id. at 27.) This reason is also not clear and convincing or

6

supported by substantial evidence. The ALJ failed to address how the 2004 records

7

undercut Plaintiff’s credibility.

8

Plaintiff indeed has experienced side effects from medication. (Id. at 493.)

Further, some of the 2011 treatment notes indicate

9

Fifth, the ALJ also discounted Plaintiff’s symptom testimony because she missed

10

several mental health evaluation appointments. (Id.) An unexplained or inadequately

11

explained failure to follow prescribed treatment can be a basis upon which to discredit a

12

Plaintiff’s symptom testimony. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir.

13

2012). However, as the Ninth Circuit Court reiterated in Garrison, “it is a questionable

14

practice to chastise one with a mental impairment for the exercise of poor judgment in

15

seeking rehabilitation.” Garrison, 759 F.3d at 1018 n.24. “In other words, we do not

16

punish the mentally ill for occasionally going off their medication when the record

17

affords a compelling reason to view such departures from prescribed treatment as part of

18

claimant’s underlying mental afflictions.” (Id.)

19

Here, Plaintiff testified that she missed appointments because either she or

20

someone in her family was sick. (Id. at 600.) However, the ALJ did not address the

21

reasons Plaintiff provided for her absences.

22

Finally,

the

ALJ

discredited

Plaintiff’s

testimony

because

“there

are

23

inconsistencies in her reported history of substance abuse with incarceration due to drug

24

use.” (Id. at 27.) The ALJ fails to provide any examples or discuss the inconsistencies to

25

which she refers.

26

testimony is not credible and what evidence undermines the claimant’s complaints.”).

27

Accordingly, this reason is also an insufficient basis upon which to discredit Plaintiff’s

Lester v. Chater, 81 F.3d at 834 (the ALJ “must identify what

28

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testimony.5

2

IV.

3

Having determined that the ALJ erred, the Court must vacate the Commissioner’s

4

decision. The remaining issue for the Court is whether to remand this matter for an

5

award of benefits or for further proceedings. Such a determination is within the Court’s

6

discretion. Smolen, 80 F.3d at 1292.

Remand for further proceedings is appropriate here.

7

“When an ALJ’s denial of benefits is not supported by the record, the proper

8

course, except in rare circumstances, is to remand to the agency for additional

9

investigation or explanation.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012)

10

(quotation omitted); see also Treichler, 775 F.3d at 1101 (noting that a remand for further

11

administrative proceedings is generally useful where the record has not been fully

12

developed, there are outstanding conflicts and ambiguities to be resolved, or the

13

presentation of further evidence may “prove enlightening.”). The Court applies the

14

credit-as-true rule to determine that a claimant is disabled and entitled to an award of

15

benefits only if there are no “outstanding issues [in the record] that must be resolved” and

16

“it is clear from the record that the ALJ would be required to find the claimant disabled

17

were [the improperly rejected] evidence credited.” Harman v. Apfel, 211 F.3d 1172, 1178

18

(9th Cir. 2000). However, a “claimant is not entitled to benefits under the statute unless

19

the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.”

20

Strauss v. Comm’r, Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

21

The Court has considered the record as a whole, weighing both the evidence that

22

supports and that which detracts from the ALJ’s conclusions. Here, the record contains

23

evidentiary conflicts that require further evaluation by the ALJ. The Court will therefore

24

remand this case for further proceedings and a new decision. On remand, in addition to

25
26
27
28

5

Plaintiff also argues that the ALJ erred in rejecting lay witness statements and failing to
consider Plaintiff’s social limitations as opined by Dr. Steingard and Dr. Brode. (Doc. 13
at 5-6.) However, because the Court has found that the ALJ erred in her treatment of
medical opinion evidence and Plaintiff’s symptom testimony, and as detailed below will
remand this matter for further proceedings and a new decision, the Court declines to
reach Plaintiff’s other arguments.
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1

reevaluating the evidence and taking new testimony, the ALJ should accept any

2

additional medical evidence into the record that exists for the period at issue.

3

Accordingly,

4

IT IS ORDERED that the Commissioners’ decision is vacated and this matter is

5

remanded to the Commissioner for further administrative proceedings consistent with this

6

Order.

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9

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly and terminate this case.
Dated this 30th day of March, 2015.

10
11
Honorable John Z. Boyle
United States Magistrate Judge

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