Ojala v. Colvin

Filing 25

MEMORANDUM AND ORDER that the decision of the Commissioner of Social Security is VACATED and this matter is REMANDED to the Commissioner for an award of benefits. The Clerk shall enter judgment. Signed by Magistrate Judge David K Duncan on 10/31/17. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sylvia Janine Ojala,

No. CV-16-1876-PHX-DMF
Plaintiff,

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v.

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Commissioner of Social Security
Administration.

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MEMORANDUM AND ORDER

Defendant.

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Plaintiff Sylvia Janine Ojala (“Claimant”) appeals the Commissioner of the Social
Security Administration’s decision to adopt Administrative Law Judge Thomas Cheffins’
(ALJ’s) ruling denying her application for Disability Insurance Benefits pursuant to Title
II of the Social Security Act. (Doc. 1 at 1-10)1 Claimant argues the ALJ erred by
improperly rejecting the assessments of Claimant’s treating psychiatrist, and by rejecting
her own symptom testimony. (Doc. 16 at 1)
This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and with the parties’
consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). For the reasons
set forth below, the Court orders the decision of the Commissioner of Social Security
vacated and remands this matter to the Commissioner for an award of benefits.

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Cites to the record indicate documents as displayed in the Official Court
Electronic Document Filing System maintained by the District of Arizona.

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I.

BACKGROUND

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A.

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Claimant was 47 when she filed her application for disability benefits on February

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16, 2012, alleging a disability onset date of December 31, 2009. (Docs. 10-4 at 2, 10-6 at

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4)

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disorder, generalized anxiety, and post-traumatic stress disorder. (Doc. 10-4 at 3) Her

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application was initially denied by the state agency on August 30, 2012 (Id. at 2-17) and

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again upon reconsideration on April 15, 2013 (Id. at 18-29). The ALJ conducted a

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hearing on Claimant’s application on September 25, 2014. (Doc 10-3 at 47-78) The ALJ

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filed a notice of an unfavorable decision on November 19, 2014. (Id. at 17-41) Claimant

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requested review by the Appeals Council (Id. at 8-15), which was denied on April 11,

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2016. (Id. at 2-4) At that point, the Commissioner’s decision became final. Brewes v.

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Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).

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Claimant’s Application and Social Security Administration Review

Claimant asserted in her application a disabling diagnosis of major depressive

B.

Relevant Medical Treatment and Examining Physicians’ Evidence
1.

Michael Rockwell, M.D. and Northlight Counseling Associates

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Claimant began treatment at Northlight Counseling Associates on January 22,

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2010. (Doc. 10-9 at 145-149) She had been hospitalized for approximately five days

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earlier that month due to depression, and had been prescribed medication. (Id. at 145)

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Her first appointment with Dr. Rockwell, who became her treating psychiatrist, was on

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February 22, 2010. (Doc. 10-8 at 73-77) He initially diagnosed her with a “long time

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combination of depression and anxiety,” and prescribed Risperdal (a medication for

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schizophrenia and bipolar disorder) in addition to her existing prescriptions for Ambien

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(a sedative) and Effexor (an antidepressant). (Id. at 77) He recommended that she

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commence counseling (Id.) In March 2010, Dr. Rockwell noted that the Risperdal did

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not seem to be working and that a different medication should be attempted. (Id.) He

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assessed her suicide risk level as moderately high. (Id.) Later in March 2010, Dr.

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Rockwell again recommended changing her medication, as Claimant was not responding

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well. (Id. at 70) He noted that Claimant’s “depression remains severe [and] that she

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cannot return to work yet.” (Id.)

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On April 16, 2010, Dr. Rockwell signed a “to whom it may concern” note,

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presumably advising Claimant’s employer that she was “too symptomatic for work,” and

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that he hoped medication adjustment would alleviate her symptoms so that she could

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return to work by May 17, 2010. (Id. at 67) On May 14, 2010, Dr. Rockwell noted that

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Claimant seemed somewhat improved, and documented that her medication would

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continue to be adjusted for “better depression coverage” and “better sleep/night time

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anxiety.” In June 2010, the doctor documented that Claimant’s affect was restricted, and

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that she appeared to be depressed, anxious, and near tears, with a thought process that

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was normal in flow and content. (Id. at 62) A handwritten notation on Claimant’s

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examination summary states, “She is now on LTD,” possibly in reference to a “long-term

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disability” policy. (Id.) Dr. Rockwell reported in July 2010 that Claimant’s medication

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had not improved her symptoms. (Id. at 60)

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In September and November 2010, the doctor indicated no significant change in

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Claimant’s mental state. (Id. at 51, 55) On November 30, 2010, the doctor documented

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that Claimant’s suicide risk level was “high.” (Id. at 49) On February 24, 2011, Dr.

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Rockwell noted that Claimant’s depression, crying, and anxiety were not improved, that

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her suicide risk remained high, and suggested that she begin a prescription for lithium

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(used to treat the manic episodes of bipolar disorder). (Id. at 46) At the same time, the

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doctor noted that at-home issues are “major contributors” to her mental state, and that he

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would like her to see a counselor. (Id.) Dr. Rockwell observed on March 24, 2011, that

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Claimant was still depressed or anxious, but not tearful on the prescription for lithium,

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and that her suicide risk had lowered to a moderately high level. (Id. at 95) On April 21,

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2011, the doctor reported that Claimant’s prescription for 900 mg of lithium was

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“helping” because she seemed only slightly depressed and not tearful, although she was

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speaking more slowly. (Id. at 92) He also noted that he planned to reduce her lithium

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dose. (Id.)

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On May 26, 2011, Dr. Rockwell recorded that after reducing Claimant’s lithium

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dose, she showed no signs of sedation but she had “bad days” of crying and anxiety. (Id.)

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Consequently, he planned to increase her lithium dose. (Id. at 89) In June 2011, the

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doctor observed that Claimant displayed some word retrieval issues, and reported feeling

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down at times but not teary, and had done some yardwork. (Id. at 87) On August 25,

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2011, Claimant was reported to have unintentionally lost 20 to 30 pounds due to elevated

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stress. (Id. at 86) She was still on 900 mg lithium, but was depressed and tearful, and the

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doctor increased her perceived suicide risk to moderately high.

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condition had only worsened by October 20, 2011, and the doctor documented that he

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would substitute one medication for another. (Id. at 84) On December 15, 2011, Dr.

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Rockwell noted that Claimant reported that she had not returned sooner for an

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appointment because, in her paranoia, she thought the doctor was “out to kill her,” and

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that she had stopped taking all medications because she could not eat, drink, or even talk,

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was crying daily, and could only sleep a couple of hours at a time. (Id. at 83) The doctor

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assessed her suicide risk as “high.” He noted that Claimant opted to go back on her

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previous medications rather than try an antipsychotic prescription. (Id.)

(Id.)

Claimant’s

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Claimant’s condition had improved on medication by January 5, 2012. (Id. at 82)

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She reported that her ability to write had diminished, but that her paranoia had lessened,

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and that she was eating and having some good days. (Id.) The doctor documented that

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her depressed state was mixed with some laughter, and that he planned to switch one of

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her depression medications. (Id.) However, on February 2, 2012, Claimant displayed

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increased moodiness and anger, and Dr. Rockwell diagnosed her with bipolar traits. (Id.

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at 81) Claimant’s next visit was on June 28, 2012, during which the doctor noted that she

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was again off her medications, crying a lot more, and reporting that her husband wanted

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to leave her. (Doc. 10-8 at 162) The doctor indicated he would place Claimant on

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Abilify, an anti-psychotic medication.

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symptoms had improved to the point that she said she was feeling better, doing more than

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usual, and that her depression was not a “10” anymore, but rather a “6 to 7.” (Id. at 168)

(Id.)

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By September 26, 2012, Claimant’s

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On October 31, 2012, Dr. Rockwell observed that Claimant’s anxiety was out of control,

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and that she reported that the presence of more than one or two persons in a room with

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her caused her to develop diarrhea or other feelings of sickness. (Id. at 170)

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On November 30, 2012, Dr. Rockwell documented that Claimant’s pulmonary

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doctor declined to fill out Social Security forms for her because she was not using her

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sleep apnea machine.

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frequently angry and that her medications did not help. (Id. at 180-181) He also reported

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that Claimant had threatened to ingest a full bottle of Restoril pills (a sedative), but

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eventually spontaneously surrendered the bottle. (Id. at 181) He noted that her mood

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was angry, intense, irritable, anxious, and sad/depressed. (Id. at 182) On January 16,

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2013, Claimant reported having begun to use her CPAP machine nightly, and had

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experienced reduced sleepiness. (Id. at 158) He noted that Claimant not taken Valium

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(an anxiety medication) in several weeks, suggesting this was the reason her anxiety was

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“so high.” (Id.) Although Claimant reported that her anxiety was “really high,” Dr.

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Rockwell observed that her depression/anger was not as bad. (Id. at 159)

(Id. at 180)

He further noted that Claimant reported being

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On March 13, 2013, Dr. Rockwell recorded that Claimant had been taking Saphris

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(a medication for schizophrenia and bipolar disorders) and Valium, and was using her

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CPAP machine, but still felt tired, was more depressed, that her anxiety very high, and

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that she had threatened suicide. (Doc. 10-9 at 99-100) He also recorded that she had not

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used her Viibryd (an antidepressant) prescription because she was too anxious about side

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effects. (Id. at 100) On March 29, 2013, however, the doctor noted that Claimant had

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taken Viibryd, which seemed to have helped. (Id. at 94) Claimant reported that she felt

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better, and that her depression had lifted somewhat. (Id.) She said that she had been to a

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bipolar support group twice. (Id.) The doctor reduced her suicide risk to moderate. (Id.

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at 95)

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On April 26, 2013, Dr. Rockwell recorded that although Claimant was still taking

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Saphris and Valium, she had been exhausted and “down,” and he assessed her suicide

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risk as increased to moderately high. (Id. at 89-90) During examinations in May 2013,

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Dr. Rockwell documented Claimant’s reports of her arguments with her husband, which

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had put her in a “murderous rage.” (Id. at 84) He noted that Claimant displayed a

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dysphoric mood, and was irritable, sad and depressed.

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discussing a plan for a hospital program or visits with an individual counselor. (Id. at 79-

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80) On May 31, 2013, Dr. Rockwell reported that Claimant had been hospitalized for a

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week. (Id. at 73) He reported that the hospital physicians had altered Claimant’s

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medications and that she was still crying, but was not as depressed. (Id. at 74) He

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lowered her suicide risk assessment to low/moderate. (Id. at 75) On July 1, 2013, Dr.

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Rockwell documented that Claimant had again been in the hospital for eight days in June

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2013. (Id. at 69) He observed that Claimant was not crying but was still depressed. (Id.)

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He also noted that Claimant’s daughter-in-law reported that Claimant was doing a lot

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better after leaving her husband, and had not demonstrated any mood swings. (Id. at 70)

(Id. at 86)

He also noted

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On August 5, 2013, the doctor reported that Claimant had started to cry again,

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suffered panic and anxiety at a restaurant with her family, suffered from depression

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without anger or tension, and assessed her suicide risk as low.

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September 2013, Claimant reported some agoraphobia and active depression, and said

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that she was seeing a counselor. (Id. at 59) The doctor assessed her suicide risk as low.

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(Id. at 60) In October 2013, Claimant told Dr. Rockwell that she experience both good

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and bad days with depression, that she had bad anxiety around the children, and that she

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had been able to leave her house, but only “as little as possible.” (Id. at 54) On

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November 15, 2013, although Claimant reported having panic attacks and was always

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nervous, she said she was doing fairly well. (Id. at 49) The doctor noted she was a bit

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tearful and displayed a depressed affect, but that she was not overtly anxious. (Id.)

(Id. at 64-65)

In

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On January 17, 2014, Claimant reported that her down mood was not lifting. (Id.

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at 44) She said she was anxious and tired all the time, but had suffered no panic attacks.

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(Id.) Dr. Rockwell noted that Claimant was more tearful and depressed than at her

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previous appointment, and raised her suicide risk to low/moderate.

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February 2014, the doctor recorded that Claimant was still down and angry at her

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(Id. at 45)

In

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husband, and that her depression and anxiety symptoms were about the same. (Id. at 39)

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He documented that she reported no panic attacks or psychosis, and that she could not

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afford counseling but had attended Al-Anon meetings.

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Claimant appeared to be “low energy,” depressed and tearful, but not overtly anxious.

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(Id. at 34) When Dr. Rockwell saw Claimant on April 9, 2014, he reported she was

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suffering from an intense, diffuse anger. (Id. at 29) He concluded that Claimant was

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more restricted and depressed than angry. (Id.) In May 2014, the doctor reported that

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Claimant said she had tried to take care of her grandson, and was too tired to take her

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medications and “now I am a mess.” (Id. at 24) She said she had not taken Risperdal on

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days she was caretaking, which was three times per week. (Id. at 24) She reported active

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depression and that she was more tearful, and apathetic about minding the baby. (Id.)

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Dr. Rockwell raised her suicide risk assessment to moderate, and documented her having

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demonstrated “impaired judgment” because she had adjusted her medication without his

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input. (Id. at 25)

(Id.)

On March 7, 2014,

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On June 4, 2014, the doctor reported Claimant’s statements that she was feeling

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better, was not as tired, and was less anxious. (Id. at 19) He lowered her assessed suicide

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risk to low. (Id. at 20) A few days later, on June 9, 2014, Claimant called because she

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had experienced a really bad panic attack. (Id. at 17) She told Dr. Rockwell that she did

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not want to take Ativan (an anti-anxiety medication) if she did not have to. (Id.) On July

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3, 2014, Claimant reported memory lapses, and that she had experienced five panic

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attacks lasting up to 30 minutes. (Id. at 13) The doctor noted that she had suffered some

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depression, but was not angry or anxious. (Id. at 14) During an office visit on July 30,

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2014, Claimant reported having daily panic attacks and scattered thoughts. (Id. at 9) Dr.

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Rockwell noted that her hypersensitivity to sounds was “almost auditory hallucinations”

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and that she was more depressed. (Id.) On August 27, 2014, Doctor Rockwell reported

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Claimant had left her husband, that her panic and anxiety were not too bad, that she was

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not sleeping and was tearful and depressed, and raised her suicide risk assessment to

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moderately high. (Id. at 3-4)

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2.

Arcadia Family Clinic

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Claimant was first seen at this practice on February 5, 2010, to follow up on her

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hospitalization in January 2010. (Doc. 10-8 at 100) The exam notes indicate both that

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Claimant was “[i]mproved but not all better on 225[mg] of [E]ffexor XR a day. To psych

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later this month,” that she “[d]enies sadness or nervousness,” and that her “mood is

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appropriate[,] [a]ffect normal.” (Id. at 100-101) She was prescribed both Effexor (an

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anti-depressant and anti-anxiety drug) and Ambien (for insomnia). (Id. at 101) Claimant

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was next seen at this practice on December 30, 2011. (Id. at 102) The examination notes

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indicate she was seen to review her medications, and that she had “not respond[ed] well

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to [P]axil or Cymbalta [both depression and anxiety medications].” (Id. at 103) She had

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been prescribed lithium and Xanax (a treatment for anxiety and panic disorder) by her

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psychiatrist, Dr. Rockwell. (Id. at 102) The notes also indicate that Claimant “[d]enies

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depression and anxiety,” and that her judgment, insight, memory, mood and affect “(i.e.,

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depression, anxiety)” were all normal. (Id. at 103)

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On January 19, 2012, Dr. Woellner documented that the “last [blood work] shows

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therapeutic lithium level” and that Claimant was “[t]ried on Seroquel [a treatment for

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schizophrenia, bipolar disorder and depression] but didn’t do well on it.” (Id. at 106) On

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February 13, 2012, Claimant was seen because she reported having troubles with her

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medication, had not been “on meds and is having a reaction.” (Id. at 108) Although the

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doctor’s review of symptoms continued to document that Claimant denied any depression

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or anxiety, and that her psychiatric status was normal, Dr. Woellner prescribed her to “go

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back on Seroquel until Dr. Rockwell sees.” (Id. at 109-110) Subsequent to a follow up

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visit on March 12, 2012, Dr. Woellner’s notes state that Claimant had done “better since

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starting meds, [S]eroquel XR has switched to[A]bilify 5.” (Id. at 112)

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On May 30, 2013, Claimant had blood drawn for testing in association with

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diagnoses of shortness of breath, anxiety and chest pain. (Doc. 10-9 at 173) She was

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assessed as “[p]ositive for behavioral problems, confusion and dysphoric mood. The

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patient is nervous/anxious.” (Id. at 170) On June 27, 2013, she again was assessed as

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having “behavioral problems, confusion and dysphoric mood,” as well as appearing

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nervous and anxious. (Id. at 167) On October 30, 2013, she was seen by Dr. Woellner,

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whose exam notes indicate that Claimant was then taking prescriptions of Haldol and

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Risperdal (both anti-psychotics), Ativan (an anti-anxiety treatment), and Desyrel (an anti-

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depressant).

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continued to display behavioral problems, nervousness, anxiety and dysphoric mood. (Id.

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at 162, 159)

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(Id. at 164)

3.

At examinations in June and September 2014, Claimant

Family Service Agency

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Claimant received counseling between May and August 2010 at the Family

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Service Agency. (Doc. 10-9 at 150-158) She was assessed as suffering from major

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depressive disorder. (Id. at 153)

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C.

Hospitalizations
1.

St. Luke’s Behavioral Health Center

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On January 4, 2010, Claimant was taken to the hospital by her husband because

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she demonstrated a worsening depressed mood, with suicidal ideation. (Doc. 10-8 at 12)

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She later explained that she felt she needed medications, she had been very tired working

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two jobs, was unable to sleep or eat, and that an incident at work had made her feel she

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could not “handle it anymore.” (Id. at 29) She had impulsively quit her job the night

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before. (Id. at 12) The hospital’s notes indicated that Claimant had stopped taking her

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medications about a year prior because the antidepressants made her tired. (Doc. Id. at

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36) She was assessed as having an intact memory, but with psychomotor slowing,

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slowing of speech, a constricted affect and depressed mood, and was positive for suicidal

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ideation with intent and plan. (Id. at 13) On discharge, Claimant was assessed as

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anxious, with appropriate affect, reality-based perceptions, fair judgment, intact memory

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and lacking suicidal ideation. (Id. at 7) The discharge notes indicated that medication

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had improved Claimant’s mood and sleep. (Id.)

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2.

Valley Hospital

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Records indicate that Claimant was admitted to Valley Hospital on May 17, 2013,

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and discharged on May 24, 2013. (Doc. 10-9 at 135) She was referred by Dr. Rockwell

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for “treatment and evaluation secondary to suicidal ideation.”

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diagnosis was bipolar disorder and generalized anxiety disorder. (Id.) Claimant was

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documented as stating she was not compliant with her prescriptions because they

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“weren’t working” and she “cannot afford these medicines anyway.”

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adjustment of her medication over her hospital stay, Claimant was discharged in stable

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condition. (Id. at 136) She was documented as suffering no “acute signs and symptoms,”

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or suicidal ideation. (Id. at 137) Her affect was noted as both appropriate and blunted,

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but her mood was “much better.” (Id.) Claimant’s thought process was logical, her

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judgment intact, and her insight partial. (Id.) Her GAF score upon admission was 25 to

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30, and on discharge had improved to 45 to 50. (Id. at 135, 137)

(Id.)

Her admitting

(Id.)

After

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The following month, on June 17, 2013, Claimant presented again to Valley

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Hospital and reported she experienced suicidal ideation and that her medications were not

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working. (Id. at 116) She was noted as having attended an intensive outpatient program

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at the hospital for the previous three weeks. (Id.) She stated she had stopped all

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medications two weeks prior because she believed they were not effective. (Id.) It

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appears that Claimant was discharged from the hospital on June 24, 2013. (Id. at 121)

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Claimant completed the intensive outpatient program on September 12, 2013. (Id. at

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119)

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improved in her “mood, thinking and behavior, communication skills” and reported

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improvement in regulating her mood by using coping skills. (Id. at 119) Her completion

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notes further indicated that her “self-esteem improved and social anxiety has decreased

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since the date of admission to [the intensive outpatient program].” (Id.)

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An assessment of her progress while in the program indicated that Claimant

D.

Treating Psychiatrist’s and Examining Consultants’ Assessments
1.

Monte L. Jones, M.D.

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On August 16, 2011, Claimant was examined by Dr. Jones in connection with a

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prior application for disability benefits. (Doc. 10-8 at 145-152) Dr. Jones diagnosed

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Claimant with mental issues, and side effects of medication, including slow mental

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process and intermittent tremors. (Id. at 148) In the “Medical Source Statement of

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Ability to Do Work-Related Activities (Physical)” form he completed on August 19,

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2011, Dr. Jones found that Claimant was subject to essentially no physical limitations,

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but concluded that “she does have mental issues and mentation limitations. Her thinking

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is very slow, too slow. I feel this is genuine.” (Id. at 150)

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2. James Huddleston, Ph.D

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On August 14, 2012, Claimant saw James Huddleston, Ph.D., for a single

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psychiatric consultation and mental status examination in connection to the instant

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application for disability benefits. (Doc. 10-8 at 135-144) Dr. Huddleston, a licensed

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psychologist, performed a clinical interview, mental status examination, and review of

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Claimant’s available medical records. (Id. at 135) Dr. Huddleston concluded that her

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recurrent depressive disorder and generalized anxiety disorder were “moderate in

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severity” and would likely cause functional limitations, including difficulty sustaining

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attention and concentration, and managing high stress. (Id. at 141-142)

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Dr. Huddleston completed a “Psychological/Psychiatric Medical Source

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Statement.” (Id. at 143) He concluded that Claimant suffered from a condition or

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conditions that would limit her ability to work.

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Claimant’s limitations included: (1) mild impairment in short-term memory, “due in

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large part to difficulty in paying attention”; (2) moderate impairment in maintaining

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sustained concentration and persistence “due to depression and anxiety that affect

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cognitive functioning”; and (3) a likelihood that she would have “difficulty functioning in

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circumstances involving extreme stress or conflict.” However, he opined that she was

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able to: (1) “understand and remember simple to moderately complex instructions,

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locations and procedures”; (2) “carry out simple to moderately complex tasks without

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(Id.)

The doctor indicated that

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special supervision”; (3) “get along with co-workers”; and (4) “adapt adequately to

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changes in the work environment, and to be aware of hazards.” (Id.)

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3.

Michael Rockwell, M.D.

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Dr. Rockwell, Claimant’s treating psychiatrist, completed a “Medical Assessment

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of the Patient’s Ability to Perform Work Related Activity” form on November 1, 2012.

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(Id. at 154-155)

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regarding: (1) responding appropriately to co-workers; (2) responding to customary work

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pressures; and (3) completing “a normal workday/workweek without interruptions from

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psychologically based symptoms and to perform at a consistent pace without an

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unreasonable number/length of rest periods.” (Id.) Dr. Rockwell opined that Claimant

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suffered severe limitations in her ability to:

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symptomatic”); and (2) respond appropriately to supervision (“at times”). He offered the

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comment that Claimant “feels if trained, she could do some work – wants to do so /

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willing to try.” (Id. at 155)

He assessed moderately severe limitations in Claimant’s ability

(1) relate to other people (“when

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Subsequently, in September 2014, Dr. Rockwell completed an updated medical

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assessment form. (Id. at 182-183) At this point, Dr. Rockwell indicated that Claimant

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was severely limited in: (1) her ability to relate to other people; (2) the estimated degree

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of deterioration in her personal habits; (3) her ability to respond appropriately to co-

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workers; (4) her ability to respond to customary work pressures; and (5) her ability to

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complete a workday or workweek without interruptions from psychologically based

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symptoms, or to perform at a consistent pace without unreasonable numbers or length of

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rest periods. (Id.) The doctor also opined that Claimant was subject to moderately severe

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limitations in her ability to: (1) respond appropriately to supervision; and (2) perform

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complex tasks. (Id.) Dr. Rockwell included a comment that Claimant was subject to

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“chronic depression/anxiety with brittle mood swings to anger and self-destructive

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behaviors.”

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September 14, 2014, “written to support her disability status,” that stated:

(Id. at 183)

Dr. Rockwell also provided Claimant with a letter dated

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I have worked with [Claimant] for many years. Despite time and
treatments she remains symptomatic for depression, anxiety, and angry
mood swings. These are intense and disabling. I have never seen her get to
the point she could function at any sort of job. In my opinion she qualifies
for disability; no doubts on my part.

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(Id. at 184)
E.

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1.

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Monte Jones and James Huddleston, on August 30, 2012, Sheri Tomak opined that
Claimant was not disabled.

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Relying on Dr. Huddleston’s

“simple types of job tasks.” (Id. at 17)
2.

Margaret Friedman, Psy.D.

On reconsideration, on April 12, 2013, the record now included the 2012 medical

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(Doc. 10-4 at 2-17)

consultative exam, Dr. Tomak concluded that Claimant was capable of performing

13

15

Sheri Tomak, Psy.D.

Upon review of Claimant’s record, including the medical source opinions of Drs.

8
9

Non-examining State Agency Medical Consultant Assessments

assessment provided by Dr. Rockwell. (Id. at 28) Dr. Friedman concluded that while
Claimant experienced “some discomfort and difficulty due to her conditions,” she was
not significantly restricted in her mobility and ability to perform daily activities. (Id. at
36) Dr. Friedman further opined that while Claimant would be unable to perform some
types of work, she was capable of performing “other work with limited contact with
others.” (Id.)
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this court must affirm the Commissioner’s decision to

adopt the ALJ’s findings if his findings are supported by substantial evidence and are free
from reversible error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial
evidence is more than a mere scintilla, but less than a preponderance.” Tidwell v. Apfel,
161 F.3d 599, 601 (9th Cir. 1998). “It is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)).

- 13 -

1

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

2

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

3

which detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th

4

Cir. 1988).

5

ambiguity in the record, and determining credibility. Andrews v. Shalala, 53 F.3d 1035,

6

1039 (9th Cir. 1995). If there is sufficient evidence to support the ALJ’s outcome, the

7

Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184

8

(9th Cir. 1990). Although the Court “must do more than merely rubberstamp the ALJ’s

9

decision[,]” Winans v. Bowen, 853 F.2d 643, 645 (9th Cir. 1988), where the evidence is

10

susceptible to more than one rational interpretation, the ALJ’s decision must be upheld.

11

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citations omitted).

12

III.

The ALJ is responsible for resolving conflicts in medical testimony,

LEGAL STANDARDS

13

Claimant bears the burden of proving disability under the Social Security Act.

14

Tidwell v. Apfel, 161 F.3d at 601. She meets this burden if she can establish that she has

15

a physical or mental impairment that prevents her from engaging in any substantial

16

gainful activity and that is expected to result in death or to last for a continuous period of

17

at least one year. 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A). Claimant’s impairments

18

must be such that she is not only unable to perform her past relevant work, but also that

19

she cannot, considering her age, education and work experience, engage in other

20

substantial gainful work existing in the national economy. 42 U.S.C. §§ 423(d)(2) and

21

1382c (a)(3)(B).

22

The Commissioner applies a five-step sequential process to evaluate disability. 20

23

C.F.R. §§ 404.1520 and 416.920. In the first three steps, the Commissioner determines:

24

(1) whether a claimant has engaged in substantial gainful activity since the alleged onset;

25

(2) whether she has a “severe” impairment or a combination of impairments that is

26

“severe”; and (3) whether the severity of any impairment meets or equals the severity of

27

any impairment in the Listing of Impairments (20 C.F.R. Pt. 404, Subpt. P, App. 1). Id.

28

If a claimant complies with these three steps, she will automatically be found disabled; if

- 14 -

1

that claimant satisfies steps one and two but not three, she must then satisfy step four. Id.

2

Before considering step four, the ALJ must assess the claimant’s residual

3

functional capacity (“RFC”), see 20 C.F.R. § 404.1520(a)(4)(iv), which is “the most [the

4

claimant] can still do despite [the claimant’s] limitations.” Treichler v. Comm’r of Soc.

5

Sec. Admin., 775 F.3d 1090, 1097 (9th Cir. 2014) (quoting 20 C.F.R. § 404.1545(a)(1)).

6

The RFC assessment is “based on all the relevant medical and other evidence” in the

7

claimant’s record. Id. (quoting 20 C.F.R. § 404.1520(e)). In determining a claimant’s

8

RFC, the ALJ must consider all of a claimant’s medically determinable impairments,

9

including those that are not severe. 20 C.F.R. § 404.1545(a)(2).

10

At step four, the ALJ considers the claimant’s RFC and past relevant work. 20

11

C.F.R. § 404.1520(a)(4)(iv). If a claimant is able to perform her past relevant work, she

12

is not found to be disabled. Id.

13

When a claimant satisfies step four, the burden shifts from her to the

14

Commissioner to establish the claimant is capable of performing other work in the

15

national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (claimant bears

16

the burden of proof on the first four steps, but the burden shifts to the Commissioner at

17

step five). The fifth and final step involves the ALJ’s decision whether a claimant is able

18

to make an adjustment to other work, given the ALJ’s assessment of the claimant’s RFC

19

and age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(v).

20

IV.

ADMINISTRATIVE HEARING

21

Administrative Law Judge Thomas Cheffins conducted a hearing on Claimant’s

22

application on September 25, 2014. (Doc. 10-3 at 47-78) Claimant testified that she

23

currently lived with her son, daughter-in-law and grandchild, received food stamps and

24

obtained medical insurance coverage through AHCCCS (Arizona’s Medicaid agency).

25

(Id. at 56) She explained she had last worked in December 2009 as a care giver to the

26

elderly. (Id. at 57) She further stated that she stopped working after she was called upon

27

to help a care center resident use the bathroom, which was a “two-person transfer” but

28

Claimant was working alone. (Id.) When questioned about the health condition that

- 15 -

1

most affects her ability to work, Claimant explained, “I just don’t function. I cry. I just

2

stay away from people.” (Id. at 58)

3

On questioning from her counsel, Claimant testified that she left her house only

4

twice a week for any reason, and typically left to see her doctor or obtain counseling. (Id.

5

at 59) She declared that she usually only took her medications when someone else was

6

around because of the side effects.

7

hospitalized for psychiatric symptoms the previous year, and that she had recurring

8

thoughts about harming herself. (Id. at 60-61) Claimant said she was tired all the time

9

and woke up at night a lot. (Id. at 61) When asked if she thought the cause was mental

(Id. at 60)

She explained that she had been

10

or physical, she said she did not know.

11

concentrating on and completing tasks because her thoughts were “scrambled.” (Id.)

(Id.)

She averred that she had troubles

12

Claimant was asked whether she could perform a job that permitted her to work a

13

job that isolated her from other people. (Id. at 61-62) She said she was not sure if she

14

would be able to even “get up and go” to a job. (Id. at 62) Claimant said she did not take

15

criticism well. (Id.) She said that she had bathed only about four times during the prior

16

couple of months, and did not socialize. (Id. at 63) Noting that she had recently

17

separated from her husband, Claimant testified that her symptoms of anxiety and panic

18

attacks had lessened, but that her depression might be “more prevalent.” (Id. at 64) She

19

noted that she had panic attacks about three times weekly, each lasting about an hour.

20

(Id.)

21

When asked if she were using her CPAP machine for her obstructive sleep apnea

22

symptoms, Claimant said that currently she was not using it, although she “should be.”

23

(Id.) Her reason for not using the CPAP machine was that she had no place to store it in

24

her son’s home. (Id.) Although she recounted that at one time she had cared for her

25

grandchild, she said it was “too much” for her because she “couldn’t handle the stress of

26

something happening to him.” (Id. at 65) She agreed that her ability to drive had

27

improved since a prior period when she had been unable to drive or leave the house. (Id.

28

at 65) Claimant stated that she smoked about two packs of cigarettes daily. (Id. at 66)

- 16 -

1

Upon further questioning from the ALJ, Claimant said that she had left the house

2

and gone places more than twice a week in the past month, as well as during an earlier

3

point in time. (Id. at 66-67) She also clarified that earlier, when she cared for her

4

grandson at home with her husband, it was normally for just a few hours at a time. (Id. at

5

67-68) Additionally, Claimant said that when she had quit her last job, she did not try to

6

regain the job because she “couldn’t face them.” (Id. at 69) Claimant explained that her

7

symptoms fluctuated from day to day so that she could leave her house more often during

8

a good week than during a bad week. (Id. at 69) She stated that she still suffered three to

9

four days each week when she just sits all day and does nothing. (Id. at 70)

10

The Vocational Expert (“VE”) classified Claimant’s past work as an office

11

manager as sedentary, skilled work, and her work as a home health aide as heavy, semi-

12

skilled work. (Id. at 71-72) The ALJ posed to the VE a hypothetical involving an

13

individual of Claimant’s age, education and work experience, able to perform light work

14

and further able to: (1) understand, carry out, and recall simple work instructions and

15

procedures; (2) respond appropriately to changes in basic work settings; (3) be organized

16

and set goals; and (4) respond appropriately to supervision, co-workers, and work

17

situations. (Id. at 72) The ALJ also posed that this hypothetical individual would be

18

subject to the postural limitations of: (1) no climbing of ladders, ropes or scaffolds; (2)

19

occasional climbing of ramps and stairs; and (3) the ability to frequently crawl. Finally,

20

the ALJ described the environmental limitations for the individual as the need to avoid

21

concentrated exposure to: (1) extreme temperatures, wetness and humidity; (2) irritants

22

such as fumes, odors, dust and gases; or to (3) hazardous machinery and unprotected

23

heights.

24

Claimant’s past work. (Id.) However, the VE identified other work in the national

25

economy that would fit the profile, including assembler, inspector and packager. (Id. at

26

73)

27
28

(Id.)

The VE confirmed that this hypothetical profile would preclude

The ALJ posed to the VE an additional hypothetical profile.

(Id.)

This

hypothetical was the same as the first, but included mental health limitations opined by

- 17 -

1

Dr. James Huddleston in his medical source statement. (Id.; Doc. 10-8 at 143) As noted

2

above in Section I.D.2, these limitations included: (1) mild impairment in short-term

3

memory and the ability to understand and remember simple to moderately complex

4

instructions, locations and procedures; (2) moderate impairment in sustained

5

concentration and persistence, such that she is able to carry out simple to moderately

6

complex tasks without supervision, and would have difficulty in conditions involving

7

extreme stress or conflict; (3) mild impairment regarding social interaction, but

8

potentially limited in situations involving high stress or confrontation; and (4) mild

9

impairment adapting to changes in the work environment and in awareness of hazards.

10

(Id.) The VE opined that the same jobs he listed in connection with the first hypothetical

11

would equally apply to the second hypothetical. (Id. at 73-74)

12

Claimant’s counsel then posed a hypothetical based on the psychiatric assessment

13

of Claimant’s treating psychiatrist, Dr. Rockwell.

14

assessment included that Claimant suffered extreme impairment in her ability to function

15

in areas involving: (1) relating appropriately to other people; (2) her personal habits; (3)

16

responding appropriately to co-workers and to customary work pressures; and (4)

17

competing a normal workday or workweek without impacts from psychologically based

18

symptoms, and performing at a consistent pace without undue rest periods. (Doc. 10-9 at

19

182-183) Dr. Rockwell’s assessment also evaluated Claimant as limited by impairments

20

that seriously affect her ability to function in the areas of: (1) responding appropriately to

21

supervision; and (2) performing complex tasks. (Id.) The VE opined that a person

22

subject to such limitations would not be able to “sustain work with continuity.” (Doc.

23

10-3 at 75) The VE advised Claimant’s counsel that an employee would not likely be

24

able to maintain employment if the employee sustained more than one unauthorized

25

absence per month. (Id. at 75-76)

26

V.

(Id. at 74-75)

Dr. Rockwell’s

ALJ’s DECISION

27

The ALJ issued his unfavorable decision on November 19, 2014. (Doc. 10-3 at

28

17-41) He found that Claimant met the insured status requirements of the Social Security

- 18 -

1

Act through March 31, 2015 (Id. at 21, 23), and that she had not engaged in substantial

2

gainful employment since December 31, 2009, her alleged onset date. (Id. at 23) The

3

ALJ found that Claimant suffered a severe combination of impairments, including

4

obstructive sleep apnea, stable pulmonary nodules, chronic obstructive pulmonary

5

disease (COPD)/asthma, tobacco abuse, post-traumatic stress disorder, anxiety and

6

depression and/or bipolar disorder. (Id.) The ALJ further found that Claimant did not

7

“have an impairment or combination of impairments” meeting or medically equaling the

8

severity of a listed impairment. (Id. at 26-28)

9

The ALJ concluded that Claimant maintained the RFC to:

10

Perform light work . . . except that she has the following non-exertional
limitations. She cannot climb ladders, ropes or scaffolds; she can
occasionally climb ramps and stairs and she can frequently crawl. She
must avoid concentrated exposure to extreme heat and extreme cold,
wetness and humidity, pulmonary irritants such as fumes, odors, dusts and
gases, and hazardous machinery and unprotected heights. Mentally, the
claimant has the mental abilities and limitations suggested at [Doc. 10-8 at
143, Dr. Huddleston’s medical source statement]. She can understand and
remember simple to moderately complex instructions, locations and
procedures without special supervision. She can carry out simple to
moderately complex tasks without special supervision. She would likely
have difficulty functioning in social circumstances involving extreme stress
or conflict. The claimant likely is able to adapt adequately to changes in
the work environment, and to be aware of hazards.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Id. at 268) The ALJ accepted the VE’s opinion that Claimant would be unable to
perform any of his past relevant work. (Id. at 39) However, the ALJ determined that
Claimant was capable of “making a successful adjustment to other work that exists in
significant numbers in the national economy[,]” including the positions of assembler,
inspector, and packager. (Id. at 40)
VI.

DISCUSSION
Claimant argues that the ALJ erred by improperly:

(1) rejecting Claimant’s

symptom testimony; and (2) rejecting the assessments of Claimant’s treating psychiatrist,
Dr. Rockwell. (Doc. 16 at 1) Each argument is addressed in turn.

- 19 -

1

A.

2

In his evaluation of Claimant’s credibility involving her subjective symptoms, the

3

ALJ must have applied a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-

4

36 (9th Cir. 2007)).

5

presented objective medical evidence of an underlying impairment which could

6

reasonably be expected to produce the pain or other symptoms alleged.” Id. at 1036

7

(citation and internal quotation marks omitted). If the claimant meets the first test and

8

there is no evidence of malingering, “the ALJ can reject the claimant’s testimony about

9

the severity of her symptoms only by offering specific, clear and convincing reasons

10

Whether the ALJ erred by rejecting Claimant’s symptom testimony

Initially, the ALJ “must determine whether the claimant has

doing so.” Id. (citation and internal quotation marks omitted).

11

The ALJ found Claimant’s “medically determinable impairment could reasonably

12

be expected to cause the alleged symptoms[,]” but also found that her “statements

13

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

14

entirely credible.” (Doc. 10-3 at 30) The ALJ devoted a significant portion of his

15

decision to discussing his finding that Claimant’s alleged physical limitations were either

16

inconsistent with the medical record, or not credible. (Id. at 30) However, Claimant

17

alleged it was her mental conditions of major depressive disorder, generalized anxiety

18

and symptoms of Post-Traumatic Stress Disorder that limited her ability to work, not her

19

physical limitations. (See, e.g., Doc. 10-7 at 6)

20

Addressing Claimant’s allegations of significant mental symptoms, the ALJ

21

concluded that Claimant’s allegations were “not consistent with the chart notes from

22

providers other than [Dr. Rockwell] and counselors at Northlight Counseling.” (Doc. 10-

23

3 at 31) The only examples given by the ALJ of inconsistencies by other providers

24

regarding Claimant’s mental symptoms came from the medical records of Arcadia

25

Family Clinic, where Claimant was seen intermittently between February 2010 and

26

October 2013. (See Section I.B.2, supra) The ALJ specifically relied on a number of

27

instances in which the Arcadia Family Clinic records documented Claimant as having

28

denied experiencing mental symptoms, and in which the exam notes also reported that no

- 20 -

1

psychiatric symptoms were observed.

2

acknowledged that in May, June and October 2013, and again in June and September

3

2014, this practice indicated that Plaintiff reported psychiatric symptoms and exhibited

4

anxiety and nervousness, he discounted these records by stating that Claimant had “an

5

issue of non-compliance.” (Id. at 32) The non-compliance with treatment and medical

6

advice apparently referenced by the ALJ consisted of: (1) time gaps between Claimant’s

7

visits to this clinic; (2) her failure to use her CPAP machine while residing in her son’s

8

home; and (3) Claimant’s testimony that she continued to smoke two packs of cigarettes a

9

day and had not been to see her pulmonary doctor in “awhile.” (Id. at 33) As noted,

10

however, these instances of allegations of non-compliance each involve Claimant’s

11

physical health and symptoms and have no direct correlation to the Clinic’s

12

documentation of her psychiatric symptoms.

(Doc. 10-3 at 31-32)

Although the ALJ

13

The ALJ also enumerated instances of non-compliance by Claimant with mental

14

health treatment. He listed: (1) instances when Claimant did not keep appointments, or

15

did not make appointments at the recommended intervals; (2) several instances when

16

Claimant had ceased taking all or only some of her prescriptions for a variety of reasons;

17

(3) one instance when Claimant self-adjusted her prescription dose; and (4) that Claimant

18

stated she could not pay for mental health counselling because she could not afford it, but

19

persisted with a two-pack-a-day cigarette addiction. (Id. at 34)

20

The ALJ also concluded that Claimant’s testimony regarding the severity of her

21

symptoms was less than fully credible because: (1) some of her symptoms were not

22

continuous (Id. at 32); (2) her symptoms seemed to be triggered by stressors within her

23

home and family (Id. at 32-33); and (3) he concluded that her issues with poor sleep

24

patterns were not entirely caused by her mental impairments, but were also the result of

25

her diagnosed sleep apnea, the symptoms of which she only sporadically treated by using

26

her CPAP machine (Id. at 33).

27

inconsistent testimony or other statements involving: whether she experienced anger;

28

how often she bathed; how often she left her home; and that she had not mentioned her

The ALJ additionally cited Claimant’s perceived

- 21 -

1

activities included swimming, yet she once had complained of back pain after climbing

2

out of a pool. (Id. at 35) The ALJ also relied on evidence that the claims representative

3

taking Claimant’s telephonic disability benefits application noted that Claimant had been

4

“cooperative and pleasant” and answered all the questions posed “without difficulty.”

5

(Id.)

6

The ALJ also concluded that Claimant’s “activities of daily living are inconsistent

7

with the level of physical and mental dysfunction she suggests.”

8

enumerated evidence that: (1) she had been able to care for three small dogs in the past;

9

(2) she had been able to spend some time caring for her grandchild at home; (3) she was

10

able to shop; and (4) she was able to pay bills, prepare simple meals, mop, do laundry,

11

wash dishes, and drive by herself. (Id.)

(Id. at 30)

He

12

The Court finds that the ALJ failed to offer specific, clear and convincing reasons

13

for rejecting Claimant’s symptom testimony regarding limitations caused by her

14

depression, anxiety, and other mental health issues.

15

Claimant’s activities of daily living is misplaced. The record does not indicate that

16

Claimant had been able “to spend a substantial part of [her] day engaged in pursuits

17

involving the performance of physical functions that are transferable to a work setting.”

18

Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (citations and internal quotation

19

marks omitted). Claimant’s description of her daily activities is not inconsistent with her

20

testimony of her mental health issues and the limitations she suffers. To the extent that

21

Claimant’s symptoms were not continuous,

22
23
24
25
26

His reliance on evidence of

it is error to reject a claimant’s testimony merely because symptoms wax
and wane in the course of treatment. Cycles of improvement and
debilitating symptoms are a common occurrence, and in such circumstances
it is error for an ALJ to pick out a few isolated instances of improvement
over a period of months or years and to treat them as a basis for concluding
a claimant is capable of working.

27

Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Moreover, “[t]hat a person who

28

suffers from severe panic attacks, anxiety, and depression makes some improvement does
- 22 -

1

not mean that the person's impairments no longer seriously affect her ability to function

2

in a workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).

3

Additionally, the ALJ’s reliance on Claimant’s bouts of non-compliance with her

4

prescriptions to support his conclusion that Claimant was not entirely credible regarding

5

the intensity, persistence and limiting effects of her symptoms also was error. The Ninth

6

Circuit instructs that “we do not punish the mentally ill for occasionally going off their

7

medication when the record affords compelling reason to view such departures from

8

prescribed treatment . . . at least in part a result” of underlying psychiatric issues.

9

Garrison, 759 F.3d at 1018 n. 24 (9th Cir. 2014). Here, the record indicates that Claimant

10

went off her medications during a time when she also did not see the doctor because she

11

thought he was out to kill her. (Doc. 10-8 at 83) She also explained that she was not

12

taking pills for a time because her anxiety prevented her from swallowing them. (Id. at

13

158, Doc. 10-9 at 100) Moreover, after Claimant’s disability onset date, the periods

14

during which she stopped taking her medications were not prolonged, and invariably

15

resulted in worsened symptoms for which she promptly sought medical care. (See, e.g.,

16

Doc. 10-8 at 83, 158-159, 162; Doc. 10-9 at 94, 100)

17

As for evidence that Claimant:

(1) denied experiencing anger; (2) provided

18

inconsistent testimony on how often she bathed; (3) said she left her home twice a week

19

rather than four times a week; (4) was less than credible because she never mentioned

20

swimming; or (5) appeared “cooperative and pleasant” to the claims representative and

21

readily answered questions, the Court finds this evidence is not adequately substantial to

22

support the ALJ’s finding that Claimant’s was not credible. As is set forth above, the

23

Court finds the reasons the ALJ relied on to reject the severity of Claimant’s symptoms

24

are not clear and convincing.2

25
26
27
28

2

This clear and convincing standard is the most heightened standard in Social
Security law. Moore v. Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002).
- 23 -

1

B.

2

The ALJ accorded either “no weight” or “very limited weight” to the medical

3

opinions of Claimant’s treating psychiatrist, Dr. Rockwell. (Doc. 10-3 at 38) In contrast,

4

the ALJ gave “substantial weight” to the examining consultative opinion of Dr.

5

Huddleston, and “some weight” to the opinions of non-examining state agency medical

6

reviewers, Drs. Tomak and Friedman. (Id. at 37)

Whether the ALJ erred by rejecting the opinions of Dr. Rockwell

7

Because treating doctors are employed to cure and have a greater opportunity to

8

know and observe the patient as an individual, their opinions generally are accorded

9

greater weight than the opinions of other physicians. Rodriguez v. Bowen, 876 F.2d

10

759, 761 (9th Cir. 1989). However, the weight given a treating physician’s opinion

11

depends on whether it is supported by sufficient medical data and is consistent with the

12

record. See 20 C.F.R. § 404.1527(d)(2). If a treating physician’s opinion is “inconsistent

13

with other substantial evidence in the record” or “is not well supported,” it should not be

14

accorded controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

15

Where a treating physician’s opinion is not controverted by another physician’s

16

opinion, an ALJ may reject the treating physician’s opinion by giving clear and

17

convincing reasons for doing so that are supported by substantial evidence. Bayliss v.

18

Barnhart, 495 F.3d 1211, 1216 (9th Cir. 2005). Where there is conflicting physician

19

testimony, an ALJ can reject a treating physician’s opinion by providing “specific and

20

legitimate” reasons supported by substantial record evidence for such rejection.

21

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Lester v. Chater, 81

22

F.3d 821, 830-31 (9th Cir. 2008)). An ALJ will meet this burden by providing a

23

“detailed and thorough summary of the facts and conflicting clinical evidence” and by

24

indicating his interpretation of this evidence, along with his findings.

25

omitted). “Where an ALJ does not explicitly reject a medical opinion or set forth

26

specific, legitimate reasons for crediting one medical opinion over another, he errs.

27

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Nguyen v. Chater, 100

28

F.3d 1462, 1646 (9th Cir. 1996)).

- 24 -

Id. (citation

1

Here, Dr. Rockwell’s medical opinions are controverted by that of one-time

2

examining psychologist, Dr. Huddleston. (Doc. 10-8 at 135-144) Accordingly, the ALJ

3

needed to set forth specific, legitimate reasons for crediting the opinion of Dr.

4

Huddleston over those of Dr. Rockwell.

5

The ALJ addressed Dr. Rockwell’s November 2012 medical assessment, and

6

found some of the opinions within that assessment to be internally inconsistent. First, the

7

ALJ found that Dr. Rockwell’s statements in the February to April 2010 period regarding

8

whether Claimant would be able to return to her caregiver job contained inconsistent

9

conclusions. (Doc. 10-3 at 37) These statements, taken in context, do not support the

10

ALJ’s finding. Rather, Dr. Rockwell’s statements reflect nothing more than his hopeful

11

medical opinion that adjustments in Claimant’s medications could quickly moderate her

12

symptoms and mental limitations to the point that she would be able to return to her job.

13

That his hopes were not realized despite his treatment of Claimant’s symptoms does not

14

support a finding of inconsistency.

15

The ALJ also accorded very limited weight to Dr. Rockwell’s November 2012

16

opinion, because the doctor had noted that Claimant had severe impairment in her ability

17

to relate to other people when she was “symptomatic,” and that she would have severe

18

limitations responding appropriately to supervision “at times.” (Id.) Additionally, the ALJ

19

found an inconsistency between Dr. Rockwell’s comment that Claimant felt that if she

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were trained, she could do “some work – wants to do so/willing to try” and the doctor’s

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assessments of severe and moderately severe impairments. (Id.) When the ALJ asked

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Claimant what type of training she had been hoping to obtain, she indicated she did not

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have any specific training in mind, and that she just wanted “to be normal.” (Id. at 77)

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The Court finds the ALJ’s reasons for according limited weight to Dr. Rockwell’s

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2012 medical assessment are not legitimate. Even though Dr. Rockwell qualified his

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assessment of two of Claimant’s impairments, he nevertheless found moderately severe

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limitations in Claimant’s ability to respond appropriately to co-workers, to customary

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work pressures, and to complete “a normal workday/workweek without interruptions

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from psychologically based symptoms and to perform at a consistent pace without an

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unreasonable number/length of rest periods.” (Doc. 10-8 at 154-155) These additional

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impairments were enough to establish disabling limitations. As for Claimant’s expressed

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desire to try to do “some” work, the ALJ failed to demonstrate how this expressed desire

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undercut Dr. Rockwell’s assessments of Claimant’s psychiatric impairments. Moreover,

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the Ninth Circuit has held that unsuccessful attempts to work are not inconsistent with a

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finding of disability. Lingenfelter v. Astrue, 5045 F.3d 1028, 1037-38 (9th Cir. 2007).

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See also Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. 2001) (holding that “[i]n light of the

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entire record, [the claimant’s] willingness to work more hours was not substantial

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evidence that he actually could work for twenty hours per week on a sustained basis.”).

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Regarding Dr. Rockwell’s September 2014 medical assessment, the ALJ gave

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three reasons for finding that this assessment did not merit the significant weight it should

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“generally” otherwise be accorded. (Id. at 38) First, the ALJ found inconsistent Dr.

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Rockwell’s findings on August 27, 2014, that Claimant “presented as anxious and

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depressed, with psychomotor retardation and slow speech,” but also presented with

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“adequate” hygiene and grooming, a “cooperative and engaged” manner with “good eye

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contact,” “organized, goal directed and linear” thought processes, and “intact” judgment.

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(Id.) Second, the ALJ determined that, to the extent Dr. Rockwell’s opinions were based

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on Claimant’s subjective complaints, the opinions merit no weight because “the claimant

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is not credible.” (Id.) The ALJ observed that the doctor “did not address [C]laimant’s

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non-compliance with the medication he prescribed or her failure to follow up with mental

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health counseling. . . . Instead, the doctor seems to have issued an opinion sympathetic to

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his patient.” (Id.) Third, the ALJ faulted Dr. Rockwell for not reading the opinions of

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Dr. Huddleston and the state agency medical consultants, stating that he was therefore

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“unaware that the [C]laimant sometimes denied depression and anxiety, or that she

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alleged symptoms not supported by this record[.]” (Id.)

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Respecting the ALJ’s first reason for rejecting Dr. Rockwell’s 2014 assessment,

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the ALJ did not either explain why the doctor’s assessment was medically inconsistent, or

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refer to substantial evidence in the record to support this rejection. Instead, he merely

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noted that because Claimant had recently separated from her husband, “some level of

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sadness/anxiety would be expected.” (Id.) This conclusory reason is not a specific and

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legitimate reason supported by substantial evidence.

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The ALJ’s second reason for rejecting Rockwell’s 2014 assessment was that, “to

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the extent [Rockwell’s] opinions were based on the claimant’s subjective complaints,”

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the opinions lack merit because the ALJ deemed Claimant not credible. (Id.) However,

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this conclusion was wholly lacking in support. The ALJ did not provide substantial

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evidence to demonstrate that Dr. Rockwell’s medical opinions were based on Claimant’s

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subjective complaints rather than his own observations and judgments of her reported

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complaints. In fact, the examination notes for each appointment Dr. Rockwell had with

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Claimant include a section documenting Claimant’s reports of her status and symptoms,

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followed by a separate section detailing the results of the doctor’s mental status

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examination, which contained the doctor’s professional assessments and conclusions

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about Claimant’s appearance, behavior, motor ability, speech, mood and affect, thought

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processes and content, insight and judgment, and cognition. (See, e.g., Doc. 10-8 at 157-

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161)

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The ALJ also concluded that Dr. Rockwell’s opinions were informed by sympathy

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to Claimant rather than his independent medical judgment. (Doc. 10-3 at 38) Again, the

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ALJ provided no evidence to support this conclusion. The Ninth Circuit has instructed

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that “[a]n ALJ may not assume that doctors routinely lie in order to help their patients

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collect disability benefits.” Popa v. Berryhill, __ F.3d __, 2017 WL 3567827, at *5 (9th

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Cir. Aug. 18, 2017) (quoting Lester, 81 F.3d at 832).

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The ALJ’s third reason for his rejection of Dr. Rockwell’s 2014 medical

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assessment was that Rockwell’s opinions were not consistent with those of Dr.

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Huddleston and the non-examining state agency consultants. (Doc. 10-3 at 38) Again,

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the ALJ failed to provide specific and legitimate reasons supported by substantial

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evidence to support this position.

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For the above reasons, the Court finds that the ALJ failed to provide specific and

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legitimate reasons supported by substantial record evidence for his rejection of either of

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Dr. Rockwell’s 2012 or 2014 medical assessments and opinions. Accordingly, the ALJ

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erred in arriving at the RFC he applied to find that there were jobs Claimant could

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perform, and also erred in finding Claimant not disabled.

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VII.

CONCLUSION

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The decision to remand a case for additional evidence or for an award of benefits

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is within the discretion of this court. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.

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1989). The court can remand a case with instructions to award benefits when:

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(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.

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Garrison, 759 at 1020. Here, all three parts of this test are met. The record was fully

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developed and further administrative proceedings are unnecessary. The ALJ’s decision

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did not provide legally sufficient reasons for rejecting both the opinion of Claimant’s

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treating physician Dr. Rockwell and Claimant’s own testimony. If the ALJ had credited

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these opinions and testimony as true, he would have been required to find that Claimant

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was disabled.

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Accordingly,

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IT IS ORDERED that the decision of the Commissioner of Social Security is

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VACATED and this matter is REMANDED to the Commissioner for an award of

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benefits as set forth in this Order.

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...

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...

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...

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IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly.
Dated this 31st day of October, 2017.

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*Magistrate Judge Duncan signing for Magistrate Judge Fine

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