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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sylvia Janine Ojala, No. CV-16-1876-PHX-DMF Plaintiff, 10 11 v. 12 Commissioner of Social Security Administration. 13 MEMORANDUM AND ORDER Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 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. 26 27 28 1 Cites to the record indicate documents as displayed in the Official Court Electronic Document Filing System maintained by the District of Arizona. 1 I. BACKGROUND 2 A. 3 Claimant was 47 when she filed her application for disability benefits on February 4 16, 2012, alleging a disability onset date of December 31, 2009. (Docs. 10-4 at 2, 10-6 at 5 4) 6 disorder, generalized anxiety, and post-traumatic stress disorder. (Doc. 10-4 at 3) Her 7 application was initially denied by the state agency on August 30, 2012 (Id. at 2-17) and 8 again upon reconsideration on April 15, 2013 (Id. at 18-29). The ALJ conducted a 9 hearing on Claimant’s application on September 25, 2014. (Doc 10-3 at 47-78) The ALJ 10 filed a notice of an unfavorable decision on November 19, 2014. (Id. at 17-41) Claimant 11 requested review by the Appeals Council (Id. at 8-15), which was denied on April 11, 12 2016. (Id. at 2-4) At that point, the Commissioner’s decision became final. Brewes v. 13 Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). 14 15 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 16 Claimant began treatment at Northlight Counseling Associates on January 22, 17 2010. (Doc. 10-9 at 145-149) She had been hospitalized for approximately five days 18 earlier that month due to depression, and had been prescribed medication. (Id. at 145) 19 Her first appointment with Dr. Rockwell, who became her treating psychiatrist, was on 20 February 22, 2010. (Doc. 10-8 at 73-77) He initially diagnosed her with a “long time 21 combination of depression and anxiety,” and prescribed Risperdal (a medication for 22 schizophrenia and bipolar disorder) in addition to her existing prescriptions for Ambien 23 (a sedative) and Effexor (an antidepressant). (Id. at 77) He recommended that she 24 commence counseling (Id.) In March 2010, Dr. Rockwell noted that the Risperdal did 25 not seem to be working and that a different medication should be attempted. (Id.) He 26 assessed her suicide risk level as moderately high. (Id.) Later in March 2010, Dr. 27 Rockwell again recommended changing her medication, as Claimant was not responding 28 -2- 1 well. (Id. at 70) He noted that Claimant’s “depression remains severe [and] that she 2 cannot return to work yet.” (Id.) 3 On April 16, 2010, Dr. Rockwell signed a “to whom it may concern” note, 4 presumably advising Claimant’s employer that she was “too symptomatic for work,” and 5 that he hoped medication adjustment would alleviate her symptoms so that she could 6 return to work by May 17, 2010. (Id. at 67) On May 14, 2010, Dr. Rockwell noted that 7 Claimant seemed somewhat improved, and documented that her medication would 8 continue to be adjusted for “better depression coverage” and “better sleep/night time 9 anxiety.” In June 2010, the doctor documented that Claimant’s affect was restricted, and 10 that she appeared to be depressed, anxious, and near tears, with a thought process that 11 was normal in flow and content. (Id. at 62) A handwritten notation on Claimant’s 12 examination summary states, “She is now on LTD,” possibly in reference to a “long-term 13 disability” policy. (Id.) Dr. Rockwell reported in July 2010 that Claimant’s medication 14 had not improved her symptoms. (Id. at 60) 15 In September and November 2010, the doctor indicated no significant change in 16 Claimant’s mental state. (Id. at 51, 55) On November 30, 2010, the doctor documented 17 that Claimant’s suicide risk level was “high.” (Id. at 49) On February 24, 2011, Dr. 18 Rockwell noted that Claimant’s depression, crying, and anxiety were not improved, that 19 her suicide risk remained high, and suggested that she begin a prescription for lithium 20 (used to treat the manic episodes of bipolar disorder). (Id. at 46) At the same time, the 21 doctor noted that at-home issues are “major contributors” to her mental state, and that he 22 would like her to see a counselor. (Id.) Dr. Rockwell observed on March 24, 2011, that 23 Claimant was still depressed or anxious, but not tearful on the prescription for lithium, 24 and that her suicide risk had lowered to a moderately high level. (Id. at 95) On April 21, 25 2011, the doctor reported that Claimant’s prescription for 900 mg of lithium was 26 “helping” because she seemed only slightly depressed and not tearful, although she was 27 speaking more slowly. (Id. at 92) He also noted that he planned to reduce her lithium 28 dose. (Id.) -3- 1 On May 26, 2011, Dr. Rockwell recorded that after reducing Claimant’s lithium 2 dose, she showed no signs of sedation but she had “bad days” of crying and anxiety. (Id.) 3 Consequently, he planned to increase her lithium dose. (Id. at 89) In June 2011, the 4 doctor observed that Claimant displayed some word retrieval issues, and reported feeling 5 down at times but not teary, and had done some yardwork. (Id. at 87) On August 25, 6 2011, Claimant was reported to have unintentionally lost 20 to 30 pounds due to elevated 7 stress. (Id. at 86) She was still on 900 mg lithium, but was depressed and tearful, and the 8 doctor increased her perceived suicide risk to moderately high. 9 condition had only worsened by October 20, 2011, and the doctor documented that he 10 would substitute one medication for another. (Id. at 84) On December 15, 2011, Dr. 11 Rockwell noted that Claimant reported that she had not returned sooner for an 12 appointment because, in her paranoia, she thought the doctor was “out to kill her,” and 13 that she had stopped taking all medications because she could not eat, drink, or even talk, 14 was crying daily, and could only sleep a couple of hours at a time. (Id. at 83) The doctor 15 assessed her suicide risk as “high.” He noted that Claimant opted to go back on her 16 previous medications rather than try an antipsychotic prescription. (Id.) (Id.) Claimant’s 17 Claimant’s condition had improved on medication by January 5, 2012. (Id. at 82) 18 She reported that her ability to write had diminished, but that her paranoia had lessened, 19 and that she was eating and having some good days. (Id.) The doctor documented that 20 her depressed state was mixed with some laughter, and that he planned to switch one of 21 her depression medications. (Id.) However, on February 2, 2012, Claimant displayed 22 increased moodiness and anger, and Dr. Rockwell diagnosed her with bipolar traits. (Id. 23 at 81) Claimant’s next visit was on June 28, 2012, during which the doctor noted that she 24 was again off her medications, crying a lot more, and reporting that her husband wanted 25 to leave her. (Doc. 10-8 at 162) The doctor indicated he would place Claimant on 26 Abilify, an anti-psychotic medication. 27 symptoms had improved to the point that she said she was feeling better, doing more than 28 usual, and that her depression was not a “10” anymore, but rather a “6 to 7.” (Id. at 168) (Id.) -4- By September 26, 2012, Claimant’s 1 On October 31, 2012, Dr. Rockwell observed that Claimant’s anxiety was out of control, 2 and that she reported that the presence of more than one or two persons in a room with 3 her caused her to develop diarrhea or other feelings of sickness. (Id. at 170) 4 On November 30, 2012, Dr. Rockwell documented that Claimant’s pulmonary 5 doctor declined to fill out Social Security forms for her because she was not using her 6 sleep apnea machine. 7 frequently angry and that her medications did not help. (Id. at 180-181) He also reported 8 that Claimant had threatened to ingest a full bottle of Restoril pills (a sedative), but 9 eventually spontaneously surrendered the bottle. (Id. at 181) He noted that her mood 10 was angry, intense, irritable, anxious, and sad/depressed. (Id. at 182) On January 16, 11 2013, Claimant reported having begun to use her CPAP machine nightly, and had 12 experienced reduced sleepiness. (Id. at 158) He noted that Claimant not taken Valium 13 (an anxiety medication) in several weeks, suggesting this was the reason her anxiety was 14 “so high.” (Id.) Although Claimant reported that her anxiety was “really high,” Dr. 15 Rockwell observed that her depression/anger was not as bad. (Id. at 159) (Id. at 180) He further noted that Claimant reported being 16 On March 13, 2013, Dr. Rockwell recorded that Claimant had been taking Saphris 17 (a medication for schizophrenia and bipolar disorders) and Valium, and was using her 18 CPAP machine, but still felt tired, was more depressed, that her anxiety very high, and 19 that she had threatened suicide. (Doc. 10-9 at 99-100) He also recorded that she had not 20 used her Viibryd (an antidepressant) prescription because she was too anxious about side 21 effects. (Id. at 100) On March 29, 2013, however, the doctor noted that Claimant had 22 taken Viibryd, which seemed to have helped. (Id. at 94) Claimant reported that she felt 23 better, and that her depression had lifted somewhat. (Id.) She said that she had been to a 24 bipolar support group twice. (Id.) The doctor reduced her suicide risk to moderate. (Id. 25 at 95) 26 On April 26, 2013, Dr. Rockwell recorded that although Claimant was still taking 27 Saphris and Valium, she had been exhausted and “down,” and he assessed her suicide 28 risk as increased to moderately high. (Id. at 89-90) During examinations in May 2013, -5- 1 Dr. Rockwell documented Claimant’s reports of her arguments with her husband, which 2 had put her in a “murderous rage.” (Id. at 84) He noted that Claimant displayed a 3 dysphoric mood, and was irritable, sad and depressed. 4 discussing a plan for a hospital program or visits with an individual counselor. (Id. at 79- 5 80) On May 31, 2013, Dr. Rockwell reported that Claimant had been hospitalized for a 6 week. (Id. at 73) He reported that the hospital physicians had altered Claimant’s 7 medications and that she was still crying, but was not as depressed. (Id. at 74) He 8 lowered her suicide risk assessment to low/moderate. (Id. at 75) On July 1, 2013, Dr. 9 Rockwell documented that Claimant had again been in the hospital for eight days in June 10 2013. (Id. at 69) He observed that Claimant was not crying but was still depressed. (Id.) 11 He also noted that Claimant’s daughter-in-law reported that Claimant was doing a lot 12 better after leaving her husband, and had not demonstrated any mood swings. (Id. at 70) (Id. at 86) He also noted 13 On August 5, 2013, the doctor reported that Claimant had started to cry again, 14 suffered panic and anxiety at a restaurant with her family, suffered from depression 15 without anger or tension, and assessed her suicide risk as low. 16 September 2013, Claimant reported some agoraphobia and active depression, and said 17 that she was seeing a counselor. (Id. at 59) The doctor assessed her suicide risk as low. 18 (Id. at 60) In October 2013, Claimant told Dr. Rockwell that she experience both good 19 and bad days with depression, that she had bad anxiety around the children, and that she 20 had been able to leave her house, but only “as little as possible.” (Id. at 54) On 21 November 15, 2013, although Claimant reported having panic attacks and was always 22 nervous, she said she was doing fairly well. (Id. at 49) The doctor noted she was a bit 23 tearful and displayed a depressed affect, but that she was not overtly anxious. (Id.) (Id. at 64-65) In 24 On January 17, 2014, Claimant reported that her down mood was not lifting. (Id. 25 at 44) She said she was anxious and tired all the time, but had suffered no panic attacks. 26 (Id.) Dr. Rockwell noted that Claimant was more tearful and depressed than at her 27 previous appointment, and raised her suicide risk to low/moderate. 28 February 2014, the doctor recorded that Claimant was still down and angry at her -6- (Id. at 45) In 1 husband, and that her depression and anxiety symptoms were about the same. (Id. at 39) 2 He documented that she reported no panic attacks or psychosis, and that she could not 3 afford counseling but had attended Al-Anon meetings. 4 Claimant appeared to be “low energy,” depressed and tearful, but not overtly anxious. 5 (Id. at 34) When Dr. Rockwell saw Claimant on April 9, 2014, he reported she was 6 suffering from an intense, diffuse anger. (Id. at 29) He concluded that Claimant was 7 more restricted and depressed than angry. (Id.) In May 2014, the doctor reported that 8 Claimant said she had tried to take care of her grandson, and was too tired to take her 9 medications and “now I am a mess.” (Id. at 24) She said she had not taken Risperdal on 10 days she was caretaking, which was three times per week. (Id. at 24) She reported active 11 depression and that she was more tearful, and apathetic about minding the baby. (Id.) 12 Dr. Rockwell raised her suicide risk assessment to moderate, and documented her having 13 demonstrated “impaired judgment” because she had adjusted her medication without his 14 input. (Id. at 25) (Id.) On March 7, 2014, 15 On June 4, 2014, the doctor reported Claimant’s statements that she was feeling 16 better, was not as tired, and was less anxious. (Id. at 19) He lowered her assessed suicide 17 risk to low. (Id. at 20) A few days later, on June 9, 2014, Claimant called because she 18 had experienced a really bad panic attack. (Id. at 17) She told Dr. Rockwell that she did 19 not want to take Ativan (an anti-anxiety medication) if she did not have to. (Id.) On July 20 3, 2014, Claimant reported memory lapses, and that she had experienced five panic 21 attacks lasting up to 30 minutes. (Id. at 13) The doctor noted that she had suffered some 22 depression, but was not angry or anxious. (Id. at 14) During an office visit on July 30, 23 2014, Claimant reported having daily panic attacks and scattered thoughts. (Id. at 9) Dr. 24 Rockwell noted that her hypersensitivity to sounds was “almost auditory hallucinations” 25 and that she was more depressed. (Id.) On August 27, 2014, Doctor Rockwell reported 26 Claimant had left her husband, that her panic and anxiety were not too bad, that she was 27 not sleeping and was tearful and depressed, and raised her suicide risk assessment to 28 moderately high. (Id. at 3-4) -7- 1 2. Arcadia Family Clinic 2 Claimant was first seen at this practice on February 5, 2010, to follow up on her 3 hospitalization in January 2010. (Doc. 10-8 at 100) The exam notes indicate both that 4 Claimant was “[i]mproved but not all better on 225[mg] of [E]ffexor XR a day. To psych 5 later this month,” that she “[d]enies sadness or nervousness,” and that her “mood is 6 appropriate[,] [a]ffect normal.” (Id. at 100-101) She was prescribed both Effexor (an 7 anti-depressant and anti-anxiety drug) and Ambien (for insomnia). (Id. at 101) Claimant 8 was next seen at this practice on December 30, 2011. (Id. at 102) The examination notes 9 indicate she was seen to review her medications, and that she had “not respond[ed] well 10 to [P]axil or Cymbalta [both depression and anxiety medications].” (Id. at 103) She had 11 been prescribed lithium and Xanax (a treatment for anxiety and panic disorder) by her 12 psychiatrist, Dr. Rockwell. (Id. at 102) The notes also indicate that Claimant “[d]enies 13 depression and anxiety,” and that her judgment, insight, memory, mood and affect “(i.e., 14 depression, anxiety)” were all normal. (Id. at 103) 15 On January 19, 2012, Dr. Woellner documented that the “last [blood work] shows 16 therapeutic lithium level” and that Claimant was “[t]ried on Seroquel [a treatment for 17 schizophrenia, bipolar disorder and depression] but didn’t do well on it.” (Id. at 106) On 18 February 13, 2012, Claimant was seen because she reported having troubles with her 19 medication, had not been “on meds and is having a reaction.” (Id. at 108) Although the 20 doctor’s review of symptoms continued to document that Claimant denied any depression 21 or anxiety, and that her psychiatric status was normal, Dr. Woellner prescribed her to “go 22 back on Seroquel until Dr. Rockwell sees.” (Id. at 109-110) Subsequent to a follow up 23 visit on March 12, 2012, Dr. Woellner’s notes state that Claimant had done “better since 24 starting meds, [S]eroquel XR has switched to[A]bilify 5.” (Id. at 112) 25 On May 30, 2013, Claimant had blood drawn for testing in association with 26 diagnoses of shortness of breath, anxiety and chest pain. (Doc. 10-9 at 173) She was 27 assessed as “[p]ositive for behavioral problems, confusion and dysphoric mood. The 28 patient is nervous/anxious.” (Id. at 170) On June 27, 2013, she again was assessed as -8- 1 having “behavioral problems, confusion and dysphoric mood,” as well as appearing 2 nervous and anxious. (Id. at 167) On October 30, 2013, she was seen by Dr. Woellner, 3 whose exam notes indicate that Claimant was then taking prescriptions of Haldol and 4 Risperdal (both anti-psychotics), Ativan (an anti-anxiety treatment), and Desyrel (an anti- 5 depressant). 6 continued to display behavioral problems, nervousness, anxiety and dysphoric mood. (Id. 7 at 162, 159) 8 (Id. at 164) 3. At examinations in June and September 2014, Claimant Family Service Agency 9 Claimant received counseling between May and August 2010 at the Family 10 Service Agency. (Doc. 10-9 at 150-158) She was assessed as suffering from major 11 depressive disorder. (Id. at 153) 12 13 C. Hospitalizations 1. St. Luke’s Behavioral Health Center 14 On January 4, 2010, Claimant was taken to the hospital by her husband because 15 she demonstrated a worsening depressed mood, with suicidal ideation. (Doc. 10-8 at 12) 16 She later explained that she felt she needed medications, she had been very tired working 17 two jobs, was unable to sleep or eat, and that an incident at work had made her feel she 18 could not “handle it anymore.” (Id. at 29) She had impulsively quit her job the night 19 before. (Id. at 12) The hospital’s notes indicated that Claimant had stopped taking her 20 medications about a year prior because the antidepressants made her tired. (Doc. Id. at 21 36) She was assessed as having an intact memory, but with psychomotor slowing, 22 slowing of speech, a constricted affect and depressed mood, and was positive for suicidal 23 ideation with intent and plan. (Id. at 13) On discharge, Claimant was assessed as 24 anxious, with appropriate affect, reality-based perceptions, fair judgment, intact memory 25 and lacking suicidal ideation. (Id. at 7) The discharge notes indicated that medication 26 had improved Claimant’s mood and sleep. (Id.) 27 28 -9- 1 2. Valley Hospital 2 Records indicate that Claimant was admitted to Valley Hospital on May 17, 2013, 3 and discharged on May 24, 2013. (Doc. 10-9 at 135) She was referred by Dr. Rockwell 4 for “treatment and evaluation secondary to suicidal ideation.” 5 diagnosis was bipolar disorder and generalized anxiety disorder. (Id.) Claimant was 6 documented as stating she was not compliant with her prescriptions because they 7 “weren’t working” and she “cannot afford these medicines anyway.” 8 adjustment of her medication over her hospital stay, Claimant was discharged in stable 9 condition. (Id. at 136) She was documented as suffering no “acute signs and symptoms,” 10 or suicidal ideation. (Id. at 137) Her affect was noted as both appropriate and blunted, 11 but her mood was “much better.” (Id.) Claimant’s thought process was logical, her 12 judgment intact, and her insight partial. (Id.) Her GAF score upon admission was 25 to 13 30, and on discharge had improved to 45 to 50. (Id. at 135, 137) (Id.) Her admitting (Id.) After 14 The following month, on June 17, 2013, Claimant presented again to Valley 15 Hospital and reported she experienced suicidal ideation and that her medications were not 16 working. (Id. at 116) She was noted as having attended an intensive outpatient program 17 at the hospital for the previous three weeks. (Id.) She stated she had stopped all 18 medications two weeks prior because she believed they were not effective. (Id.) It 19 appears that Claimant was discharged from the hospital on June 24, 2013. (Id. at 121) 20 Claimant completed the intensive outpatient program on September 12, 2013. (Id. at 21 119) 22 improved in her “mood, thinking and behavior, communication skills” and reported 23 improvement in regulating her mood by using coping skills. (Id. at 119) Her completion 24 notes further indicated that her “self-esteem improved and social anxiety has decreased 25 since the date of admission to [the intensive outpatient program].” (Id.) 26 27 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. 28 - 10 - 1 On August 16, 2011, Claimant was examined by Dr. Jones in connection with a 2 prior application for disability benefits. (Doc. 10-8 at 145-152) Dr. Jones diagnosed 3 Claimant with mental issues, and side effects of medication, including slow mental 4 process and intermittent tremors. (Id. at 148) In the “Medical Source Statement of 5 Ability to Do Work-Related Activities (Physical)” form he completed on August 19, 6 2011, Dr. Jones found that Claimant was subject to essentially no physical limitations, 7 but concluded that “she does have mental issues and mentation limitations. Her thinking 8 is very slow, too slow. I feel this is genuine.” (Id. at 150) 9 2. James Huddleston, Ph.D 10 On August 14, 2012, Claimant saw James Huddleston, Ph.D., for a single 11 psychiatric consultation and mental status examination in connection to the instant 12 application for disability benefits. (Doc. 10-8 at 135-144) Dr. Huddleston, a licensed 13 psychologist, performed a clinical interview, mental status examination, and review of 14 Claimant’s available medical records. (Id. at 135) Dr. Huddleston concluded that her 15 recurrent depressive disorder and generalized anxiety disorder were “moderate in 16 severity” and would likely cause functional limitations, including difficulty sustaining 17 attention and concentration, and managing high stress. (Id. at 141-142) 18 Dr. Huddleston completed a “Psychological/Psychiatric Medical Source 19 Statement.” (Id. at 143) He concluded that Claimant suffered from a condition or 20 conditions that would limit her ability to work. 21 Claimant’s limitations included: (1) mild impairment in short-term memory, “due in 22 large part to difficulty in paying attention”; (2) moderate impairment in maintaining 23 sustained concentration and persistence “due to depression and anxiety that affect 24 cognitive functioning”; and (3) a likelihood that she would have “difficulty functioning in 25 circumstances involving extreme stress or conflict.” However, he opined that she was 26 able to: (1) “understand and remember simple to moderately complex instructions, 27 locations and procedures”; (2) “carry out simple to moderately complex tasks without 28 - 11 - (Id.) The doctor indicated that 1 special supervision”; (3) “get along with co-workers”; and (4) “adapt adequately to 2 changes in the work environment, and to be aware of hazards.” (Id.) 3 3. Michael Rockwell, M.D. 4 Dr. Rockwell, Claimant’s treating psychiatrist, completed a “Medical Assessment 5 of the Patient’s Ability to Perform Work Related Activity” form on November 1, 2012. 6 (Id. at 154-155) 7 regarding: (1) responding appropriately to co-workers; (2) responding to customary work 8 pressures; and (3) completing “a normal workday/workweek without interruptions from 9 psychologically based symptoms and to perform at a consistent pace without an 10 unreasonable number/length of rest periods.” (Id.) Dr. Rockwell opined that Claimant 11 suffered severe limitations in her ability to: 12 symptomatic”); and (2) respond appropriately to supervision (“at times”). He offered the 13 comment that Claimant “feels if trained, she could do some work – wants to do so / 14 willing to try.” (Id. at 155) He assessed moderately severe limitations in Claimant’s ability (1) relate to other people (“when 15 Subsequently, in September 2014, Dr. Rockwell completed an updated medical 16 assessment form. (Id. at 182-183) At this point, Dr. Rockwell indicated that Claimant 17 was severely limited in: (1) her ability to relate to other people; (2) the estimated degree 18 of deterioration in her personal habits; (3) her ability to respond appropriately to co- 19 workers; (4) her ability to respond to customary work pressures; and (5) her ability to 20 complete a workday or workweek without interruptions from psychologically based 21 symptoms, or to perform at a consistent pace without unreasonable numbers or length of 22 rest periods. (Id.) The doctor also opined that Claimant was subject to moderately severe 23 limitations in her ability to: (1) respond appropriately to supervision; and (2) perform 24 complex tasks. (Id.) Dr. Rockwell included a comment that Claimant was subject to 25 “chronic depression/anxiety with brittle mood swings to anger and self-destructive 26 behaviors.” 27 September 14, 2014, “written to support her disability status,” that stated: (Id. at 183) Dr. Rockwell also provided Claimant with a letter dated 28 - 12 - 1 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. 2 3 4 5 (Id. at 184) E. 6 1. 7 10 11 12 Monte Jones and James Huddleston, on August 30, 2012, Sheri Tomak opined that Claimant was not disabled. 17 18 19 20 21 22 23 24 25 26 27 28 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 14 16 (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 20 were trained, she could do “some work – wants to do so/willing to try” and the doctor’s 21 assessments of severe and moderately severe impairments. (Id.) When the ALJ asked 22 Claimant what type of training she had been hoping to obtain, she indicated she did not 23 have any specific training in mind, and that she just wanted “to be normal.” (Id. at 77) 24 The Court finds the ALJ’s reasons for according limited weight to Dr. Rockwell’s 25 2012 medical assessment are not legitimate. Even though Dr. Rockwell qualified his 26 assessment of two of Claimant’s impairments, he nevertheless found moderately severe 27 limitations in Claimant’s ability to respond appropriately to co-workers, to customary 28 work pressures, and to complete “a normal workday/workweek without interruptions - 25 - 1 from psychologically based symptoms and to perform at a consistent pace without an 2 unreasonable number/length of rest periods.” (Doc. 10-8 at 154-155) These additional 3 impairments were enough to establish disabling limitations. As for Claimant’s expressed 4 desire to try to do “some” work, the ALJ failed to demonstrate how this expressed desire 5 undercut Dr. Rockwell’s assessments of Claimant’s psychiatric impairments. Moreover, 6 the Ninth Circuit has held that unsuccessful attempts to work are not inconsistent with a 7 finding of disability. Lingenfelter v. Astrue, 5045 F.3d 1028, 1037-38 (9th Cir. 2007). 8 See also Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. 2001) (holding that “[i]n light of the 9 entire record, [the claimant’s] willingness to work more hours was not substantial 10 evidence that he actually could work for twenty hours per week on a sustained basis.”). 11 Regarding Dr. Rockwell’s September 2014 medical assessment, the ALJ gave 12 three reasons for finding that this assessment did not merit the significant weight it should 13 “generally” otherwise be accorded. (Id. at 38) First, the ALJ found inconsistent Dr. 14 Rockwell’s findings on August 27, 2014, that Claimant “presented as anxious and 15 depressed, with psychomotor retardation and slow speech,” but also presented with 16 “adequate” hygiene and grooming, a “cooperative and engaged” manner with “good eye 17 contact,” “organized, goal directed and linear” thought processes, and “intact” judgment. 18 (Id.) Second, the ALJ determined that, to the extent Dr. Rockwell’s opinions were based 19 on Claimant’s subjective complaints, the opinions merit no weight because “the claimant 20 is not credible.” (Id.) The ALJ observed that the doctor “did not address [C]laimant’s 21 non-compliance with the medication he prescribed or her failure to follow up with mental 22 health counseling. . . . Instead, the doctor seems to have issued an opinion sympathetic to 23 his patient.” (Id.) Third, the ALJ faulted Dr. Rockwell for not reading the opinions of 24 Dr. Huddleston and the state agency medical consultants, stating that he was therefore 25 “unaware that the [C]laimant sometimes denied depression and anxiety, or that she 26 alleged symptoms not supported by this record[.]” (Id.) 27 Respecting the ALJ’s first reason for rejecting Dr. Rockwell’s 2014 assessment, 28 the ALJ did not either explain why the doctor’s assessment was medically inconsistent, or - 26 - 1 refer to substantial evidence in the record to support this rejection. Instead, he merely 2 noted that because Claimant had recently separated from her husband, “some level of 3 sadness/anxiety would be expected.” (Id.) This conclusory reason is not a specific and 4 legitimate reason supported by substantial evidence. 5 The ALJ’s second reason for rejecting Rockwell’s 2014 assessment was that, “to 6 the extent [Rockwell’s] opinions were based on the claimant’s subjective complaints,” 7 the opinions lack merit because the ALJ deemed Claimant not credible. (Id.) However, 8 this conclusion was wholly lacking in support. The ALJ did not provide substantial 9 evidence to demonstrate that Dr. Rockwell’s medical opinions were based on Claimant’s 10 subjective complaints rather than his own observations and judgments of her reported 11 complaints. In fact, the examination notes for each appointment Dr. Rockwell had with 12 Claimant include a section documenting Claimant’s reports of her status and symptoms, 13 followed by a separate section detailing the results of the doctor’s mental status 14 examination, which contained the doctor’s professional assessments and conclusions 15 about Claimant’s appearance, behavior, motor ability, speech, mood and affect, thought 16 processes and content, insight and judgment, and cognition. (See, e.g., Doc. 10-8 at 157- 17 161) 18 The ALJ also concluded that Dr. Rockwell’s opinions were informed by sympathy 19 to Claimant rather than his independent medical judgment. (Doc. 10-3 at 38) Again, the 20 ALJ provided no evidence to support this conclusion. The Ninth Circuit has instructed 21 that “[a]n ALJ may not assume that doctors routinely lie in order to help their patients 22 collect disability benefits.” Popa v. Berryhill, __ F.3d __, 2017 WL 3567827, at *5 (9th 23 Cir. Aug. 18, 2017) (quoting Lester, 81 F.3d at 832). 24 The ALJ’s third reason for his rejection of Dr. Rockwell’s 2014 medical 25 assessment was that Rockwell’s opinions were not consistent with those of Dr. 26 Huddleston and the non-examining state agency consultants. (Doc. 10-3 at 38) Again, 27 the ALJ failed to provide specific and legitimate reasons supported by substantial 28 evidence to support this position. - 27 - 1 For the above reasons, the Court finds that the ALJ failed to provide specific and 2 legitimate reasons supported by substantial record evidence for his rejection of either of 3 Dr. Rockwell’s 2012 or 2014 medical assessments and opinions. Accordingly, the ALJ 4 erred in arriving at the RFC he applied to find that there were jobs Claimant could 5 perform, and also erred in finding Claimant not disabled. 6 VII. CONCLUSION 7 The decision to remand a case for additional evidence or for an award of benefits 8 is within the discretion of this court. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 9 1989). The court can remand a case with instructions to award benefits when: 10 (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. 11 12 13 14 15 Garrison, 759 at 1020. Here, all three parts of this test are met. The record was fully 16 developed and further administrative proceedings are unnecessary. The ALJ’s decision 17 did not provide legally sufficient reasons for rejecting both the opinion of Claimant’s 18 treating physician Dr. Rockwell and Claimant’s own testimony. If the ALJ had credited 19 these opinions and testimony as true, he would have been required to find that Claimant 20 was disabled. 21 Accordingly, 22 IT IS ORDERED that the decision of the Commissioner of Social Security is 23 VACATED and this matter is REMANDED to the Commissioner for an award of 24 benefits as set forth in this Order. 25 ... 26 ... 27 ... 28 - 28 - 1 2 3 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. Dated this 31st day of October, 2017. 4 5 6 7 8 9 *Magistrate Judge Duncan signing for Magistrate Judge Fine 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 -

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