Provencio v. Astrue

Filing 34

ORDER ; Defendant's decision is reversed; case is remanded for further proceedings consistent with this Order; Clerk is to enter judgment. Signed by Magistrate Judge Bernardo P Velasco on 6/20/12. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brandon A. Provencio,

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Plaintiff,

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ORDER

v.

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No. CV 11-141-TUC-BPV

Michael J. Astrue, Commissioner of Social
Security,

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Defendant.

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Plaintiff applied for Disability Insurance Benefits (DIB) on September 8, 2006,

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alleging disability due to fibromyalgia, manic depression, valley fever, asthma, tmj,

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insomnia, and hypertension. Tr. 118-124, 142-154. The application was denied initially,

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(Administrative Transcript (Tr.) 72-75), on reconsideration, (Tr. 76-78), and after an

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administrative hearing before an Administrative Law Judge (ALJ) held on April 20,

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2009, (Tr. 26-68). The ALJ issued a written decision on June 18, 2009, finding Plaintiff

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not disabled within the meaning of the Social Security Act. Tr. 13-24. This decision

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became the final decision for purposes of judicial review under 42 U.S.C. § 405(g) when

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the Appeals Council denied review. Tr. 2.

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Plaintiff now brings this action for review of the final decision of the

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Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g). The United States

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Magistrate Judge has received the written consent of both parties, and, accordingly,

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presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73.

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After considering the record before the Court and the parties’ briefing of the
issues, the Court will reverse Defendant’s decision and remand for further proceedings.
I.

BACKGROUND

Plaintiff alleges an onset of disability of April 1, 2006. Plaintiff was born in 1983,

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and was 22 years old as of the alleged disability onset date. Plaintiff has a high school

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education. Plaintiff worked most recently as a dog groomer at a pet store following an

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honorable discharge (medical) after a year and a half working in munitions in the Air

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Force. Prior to joining the Air Force Plaintiff had been employed to deliver pizzas and as

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a games attendant at an amusement park. Plaintiff began suffering joint pains around

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September, 2003, concurrent with contracting valley fever (coccidioidomycosis).

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Although the valley fever resolved, the joint pain persisted and Plaintiff was subsequently

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diagnosed with fibromyalgia. Following Plaintiff’s diagnosis of valley fever, but prior to

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the alleged onset date, Plaintiff developed major depression and was hospitalized for a

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week in the psychiatric unit of the VA. Since that time, Plaintiff has received outpatient

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psychiatric care from the VA for mental health impairments. Plaintiff was given a service

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connected disability rating of 70 percent from the Department of Veterans Affairs (VA),

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with a 50 percent disability rating due to major depressive disorder and a 40 percent

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rating assigned to fibromyalgia.

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II.

STANDARD OF REVIEW

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The Court has the “power to enter, upon the pleadings and transcript of the record,

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a judgment affirming, modifying, or reversing the decision of the Commissioner of Social

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Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The

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court will set aside a denial of benefits only if the Commissioner's findings are based on

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legal error or are not supported by substantial evidence in the record as a whole. See 42

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U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if

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supported by substantial evidence, shall be conclusive”); Kail v. Heckler, 722 F.2d 1496,

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1497 (9th Cir. 1984) (citing Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982),

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Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir, 1982)); Smolen v. Chater, 80 F.3d

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1273, 1279 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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“Substantial evidence is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)

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(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “‘Substantial evidence’

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means ‘more than a scintilla,’ but ‘less than a preponderance.’” Smolen, 80 F.3d at 1279

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(quoting Perales, 402 U.S. at 401 and Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10

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(9th Cir. 1975)) (internal citations omitted); see also Bray v. Comm’r of Soc. Sec. Admin.,

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554 F.3d 1219, 1222 (9th Cir. 2009);Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
III.

DISCUSSION

Whether a claimant is disabled is determined using a five-step evaluation process.

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To establish disability, the claimant must show (1) she has not worked since the alleged
disability onset date, (2) she has a severe impairment, and (3) her impairment meets or
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equals a listed impairment or (4) her residual functional capacity (RFC) precludes her

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from performing her past work. At step five, the Commissioner must show that the

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claimant is able to perform other work. See 20 C.F.R. § 404.1520.

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In her decision, the ALJ found Plaintiff had not engaged in substantial gainful

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activity from April 1, 2006, the alleged onset date. Tr. 18. At step two, the ALJ found

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Plaintiff had fibromyalgia and post valley fever, impairments that were “severe” pursuant

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to the regulations. Tr. 18. At step three, the ALJ found Plaintiff did not have an

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impairment or combination of impairments that met or medically equaled one of the

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listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 19-20.

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The ALJ found Plaintiff had the residual functional capacity to perform the full

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range of medium work. Tr. 20. At step four, the ALJ found Plaintiff was able to perform

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his past relevant work as a dog groomer, a game attendant and a pizza delivery driver. Tr.

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23. Therefore, the ALJ found Plaintiff was not disabled at any time from April 1, 2006

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through the date of her decision. Tr. 24.

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Plaintiff argues that the ALJ erred by (1) finding that Plaintiff's mental

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impairments are not severe at step two; (2) failing to consider his mental impairments on

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a longitudinal basis; (3) failing to consider his impairments in combination; (4) rejecting

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Plaintiff’s symptom testimony; (5) rejecting the treating psychiatrist’s opinion; and (6)

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giving little weight to the disability decision of the Department of Veterans Affairs.

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Plaintiff contends that the Court should exercise its discretion to remand for additional

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administrative proceedings.

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The Commissioner responds, arguing that substantial evidence in the record as a

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whole supports the ALJ’s decision that Plaintiff was not disabled, and that the errors

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alleged by Plaintiff do not warrant reversal or remand.

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A. Step Two Determination: Mental Impairment

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At step two of the five step evaluation, the ALJ found that Plaintiff’s medically

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determinable mental impairment of affective disorder did not cause more than minimal

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limitation in the claimant’s ability to perform basic mental work activities, and thus was

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found to be nonsevere. Tr. 18. The ALJ found that Plaintiff had no more than “mild”

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limitations in the first three broad functional areas described in section 12.00C of the

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Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1), the areas of daily

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living, social functioning, and concentration, persistence or pace, and that Plaintiff had
“no” episodes of decompensation which had been of extended duration. Tr. 19.
The Commissioner argues that the ALJ’s step two determination was not error, but

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even if the ALJ did err in making a step-two determination, the error was harmless

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because the ALJ considered the combined effect of Plaintiff’s impairments, including

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Plaintiff’s mental impairments, in determining that Plaintiff had the residual functional

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capacity to perform medium work.

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Once a claimant has demonstrated that she is not engaged in substantial gainful

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activity, the ALJ must proceed to step two to determine whether the claimant has a

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medically severe impairment or combination of impairments significantly limiting her

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from performing basic work activities. 20 CFR § 404.1520(c). Under the regulations,
“[a]n impairment or combination of impairments is not severe if it does not significantly
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limit your physical or mental ability to do basic work activities.” 20 CFR § 404.1521(a).

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See also Bowen v. Yuckert, 482 U.S. 137 (1987) (at step two, the Commissioner makes an

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initial determination of medical severity without consideration of the claimant's age,

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education, and experience); SSR 96-3p (an impairment is “not severe” when medical

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evidence establishes only “a slight abnormality (or a combination of slight abnormalities)

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that has no more than a minimal effect on the ability to do basic work activities.”) Basic

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work activities are “the abilities and aptitudes necessary to do most jobs” such as

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walking, standing sitting and other physical functions, understanding, carrying out and

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remembering simple instructions; use of judgment; responding appropriately to

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supervisors, co-workers and usual work situations; and dealing with changes in a routine

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work setting. 20 CFR. § 404.1521(b).

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The step-two inquiry is a de minimis screening device to dispose of groundless

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claims. Webb, 433 F.3d at 687 (citing SSR 85-28); Yuckert, 482 U.S. at 153. In making

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this determination in regards to claims of a mental impairment, an ALJ is required to

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“‘document application of the [Psychiatric Review Technique] in the decision.’” Keyser

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v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011) (quoting 20 C.F.R. §

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404.1520a(e)); see also Dykstra v. Barnhart, 94 Fed.Appx. 449, 450 (9th Cir. 2004). This

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technique is reflected in a Psychiatric Review Technique Form (“PRTF”), wherein the

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reviewer must: 1) “determine whether an applicant has a medically determinable mental

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impairment”; 2) “rate the degree of functional limitation for four functional areas”; and 3)

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“determine the severity of the mental impairment (in part based on the degree of
functional limitation).” Keyser, 648 F.3d at 725 (citing 20 C.F.R. § 404.1520a). The four
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functional areas are: activities of daily living; social functioning; concentration,

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persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).

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Accordingly, the ALJ's written opinion must “incorporate the pertinent findings and

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conclusions based on the technique” and “include a specific finding as to the degree of

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limitation in each of the functional areas.” Keyser, 648 F.3d at 725 (citations and internal

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quotations omitted).

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“[A]n ALJ may find that a claimant lacks a medically severe impairment or

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combination of impairments only when his conclusion is ‘clearly established by medical

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evidence.’” Webb, 433 F.3d at 687; see also Orr v. Astrue, 2008 WL 344528 (D.Ariz.

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February 7, 2008) (If a finding of non-severity is not clearly established by medical

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evidence, adjudication must continue through the sequential evaluation process.) Thus,

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substantial evidence must support the ALJ's finding “that the medical evidence clearly

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established that [the claimant] did not have a medically severe impairment or

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combination of impairments.” Id. See also Yuckert v. Bowen, 841 F.2d 303, 306

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(“Despite the deference usually accorded to the Secretary's application of regulations,

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numerous appellate courts have imposed a narrow construction upon the severity

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regulation applied here.”).

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In making her step two determination, the ALJ’s conclusion was not clearly

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established by the medical evidence. The ALJ relied on a small sampling of evidence

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from the record to support her finding: the evidence Plaintiff reported in the form he

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completed with his disability application (Function Report- Adult), Tr. 172-178, a few
selected treatment notes from a clinical nurse specialist at the Veteran’s Hospital, Tr. 303,
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308, and from a licensed clinical social worker at the Veteran’s Hospital, Tr. 639-640,

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642, and one page from the consulting examiner’s Medical Source Statement of Ability

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to do Work Related Activities (Mental), Tr. 350. See Tr. 19 (ALJ’s discussion and rating

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of the degree of functional limitation in the four functional areas).

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In making the step two determination, the ALJ completely failed to discuss the

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abundance of medical evidence provided by Plaintiff’s mental health care providers at the

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Veteran’s Hospital, or from the VA’s consultative examiners, or the State agency

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consultative examiner. A review of this medical evidence establishes that Plaintiff’s

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mental impairment had more than a minimal effect on his ability to do basic work

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activities.

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On August 4, 2004, prior to the date Plaintiff alleges disability, Plaintiff was

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examined by psychiatrist John Clymer, M.D., for purposes of a compensation and

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pension examination for the VA, and was diagnosed with major depression. Tr. 262-63

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Dr. Clymer rated Plaintiff’s GAF score at 501 “with serious symptoms, serious
impairment in social and occupational function, and unable to keep a job.” Tr. 263.

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GAF Scores range from 1-100. American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders, p.32 (4th ed.). “A GAF score is a rough
estimate of an individual's psychological, social, and occupational functioning used to
reflect the individual's need for treatment.” Vargas v. Lambert, 159 F .3d 1161, 1164 n. 2
(9th Cir. 1998). In arriving at a GAF Score, the clinician considers psychological, social,
and occupational functioning on a hypothetical continuum of mental health illness. Id. at
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A GAF score of 41-50 indicates:

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Serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).
Id. A GAF score of 51-60 indicates:
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On August 2, 2006, after the date Plaintiff alleges disability, Andrew Jones, Ph.D.,

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a psychologist, examined Plaintiff for purposes of a compensation and pension

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examination for the VA, and diagnosed him with “Major depressive disorder, recurrent,

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severe” and provided a GAF score of 49. Tr. 251. Dr. Jones also noted a “significant

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sleep impairment.” Tr. 251. Dr. Jones opined that Plaintiff’s symptoms were “high and

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the duration of symptoms has been chronic” with worsening of symptoms despite

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psychotropic medication treatment. Tr. 250. Dr. Jones also noted that emotional

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difficulties are “to a severe enough extent that they are impeding him from being able to

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look for and engage in viable employment; therefore, his current unemployment is at

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least partially due to the effects of a mental disorder and I doubt that in his current level

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of physical and emotional functioning he would be able to sustain a job long term.” Tr.

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250. Dr. Jones noted that while Plaintiff was able to complete basic activities of daily

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living independently and meet family responsibilities, he isolates himself socially and is

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not engaging in many social activities, and is having difficulty interacting with others due

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Moderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers.

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Id. A GAF score of 61-70 indicates:
Some mild symptoms (e.g., depressed mood and mild insomnia) OR some
difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships.

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Id.

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to low stress tolerance and irritability, and “[a]t this time, he [is] temporarily unable to
meet work demands and responsibilities.” Tr. 251.
On November 16, 2006, Plaintiff was treated by a VA psychiatrist Edwin Kroon,

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M.D., who provided a diagnosis of “passive dependent type personality” and reported
Plaintiff had problems with “depressed mood” and “insomnia.” Tr. 297.
Plaintiff was treated by VA psychiatrist Lawrence Climo on March 26, 2007, who
noted Plaintiff had a problem with “depression with angry moods” as well as insomnia

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Tr. 268.
At the request of the Commissioner, Dr. Yost examined Plaintiff and was also
provided medical records to review, including a Health Summary from the Veterans

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Hospital printed on April 24, 2007. Tr. 345-354.2 The Health Summary included a

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diagnosis of “major depressive disorder, recurrent, severe.” Tr. 345. Dr. Yost noted that

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Plaintiff’s overall mood was depressed and that he spoke in a very slow voice and

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interacted in a very slow manner. Tr. 346. Dr. Yost diagnosed bipolar affective disorder,

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currently depressed. Tr. 347. In a questionnaire on work-related activities, Dr. Yost

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opined that Plaintiff would be “moderately limited” (either fair or limited, but not

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precluded) in the ability to perform activities within a schedule, maintain regular

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attendance, and be punctual within customary tolerances, and to complete a normal

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workday and workweek without interruptions from psychologically based symptoms and

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Dr. Yost’s report and Medical Source Statement of Ability to do Work Related
Activities (Mental), can be found at pages 336-344 of the administrative record and are
duplicated at pages 345-353. The second set of documents, though identical to the first,
have been electronically signed by Dr. Yost.
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to perform at a consistent pace without an unreasonable number and length of rest

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periods. Tr. 349-50. Dr. Yost opined that Plaintiff was “not significantly limited” (either

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good or mild limitations) in most other work-related activities, and found “no evidence of

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limitation” (very good) in the categories of the ability to travel in unfamiliar places or use

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public transportation, and the ability to set realistic goals or make plans independently of

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others. Tr. 348-52. Dr. Yost assigned Plaintiff a GAF score of 51-60, indicating moderate

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symptoms or moderate difficulty in social or occupational functioning. Tr. 347.

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Dr. Wilcox diagnosed Plaintiff as suffering from depression, low mood and

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disordered sleep and assessed a GAF of 63 on August 30, 2007. Tr. 439-42. On October

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30, 2007, Dr. Wilcox assessed Plaintiff with low mood and irregular sleep and

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established a treatment plan to address Plaintiff’s depression. Tr. 418-19. Plaintiff saw

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Dr. Wilcox in December 2007 complaining of fatigue and anxiety, but denying severe

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depression. Tr. 654-56. Dr. Wilcox noted that Plaintiff’s mood was mildly depressed and

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he was suffering from nervous tension and anxiety and assessed a GAF score of 62. Tr.

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655-56. On February 5, 2008, Dr. Wilcox noted that Plaintiff appeared tired, his sleep

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was still difficult, he complained of pain, and his mood was euthymic. Tr. 637. Dr.

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Wilcox maintained Plaintiff’s diagnoses as depression and anxiety. Tr. 638. Dr. Wilcox

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reported that: “[Plaintiff] is clearly disabled by his symptoms.” Tr. 637. In March 2008,

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Dr. Wilson again diagnosed depression, anxiety, nervous tension and insomnia and

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assessed a GAF score of 62. Tr. 611-14.

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In a questionnaire dated November 17, 2008, Dr. Wilcox reported that Plaintiff
was suffering from post traumatic stress disorder, depression and anxiety. Tr. 480-84. His
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symptoms included fatigue, anxiety, poor sleep, nightmares and depression. Tr. 480. Dr.

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Wilcox did not think that Plaintiff could tolerate even a low stress job because he was

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“too anxious.” Tr. 481. He opined that Plaintiff’s pain and other symptoms would

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“frequently” interfere with the attention and concentration needed to perform simple

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work tasks. Tr. 481. Dr. Wilcox also reported that Plaintiff’s impairments were likely to

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produce “good days” and “bad days.” Tr. 483. Dr. Wilcox continued to treat Plaintiff for

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depression and anxiety through December, 2008. Tr. 573.

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“A determination that an impairment(s) is not severe requires a careful evaluation

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of the medical findings which describe the impairment(s) and an informed judgment

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about its (their) limiting effects on the individual’s physical and mental ability(ies) to

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perform basic work activities; thus, an assessment of function is inherent in the medical

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evaluation process itself.” SSR 85-28, 1985 WL 56856 at *4 (1985) (Program Policy

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Statement; Titles II and XVI: Medical Impairments That Are Not Severe). The ALJ erred

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at step two by failing to carefully evaluate all of the medical findings which described

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Plaintiff’s mental impairment and making an informed judgment about the limiting effect

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such impairment would have on Plaintiff’s ability to perform basic work activities. The

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ALJ considered only a small handful of evidence in making her determination, and

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ignored the most salient evidence in the record, the treatment notes from Plaintiff’s

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treating psychiatrists and psychologists, as well as examination notes from two different

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psychiatrists who examined Plaintiff. An impairment or combination of impairments can

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be found “not severe” only if the medical evidence clearly establishes a slight
abnormality that has “no more than a minimal effect on an individual’s ability to work.”
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SSR 85-28, 1985 WL 56856 at *3 (1985); see also Webb, 433 F.3d at 686; Smolen, 80

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F.3d at 1290; Yuckert, 841 F.2d at 306 (adopting SSR 85-28). A review of the medical

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evidence of record from Plaintiff’s treating sources, as well as consultative examiners,

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establishes that Plaintiff’s mental impairment was more than a slight abnormality with a

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minimal effect on Plaintiff’s ability to work; the medical evidence of record establishes

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that the impairment was a persistent and serious condition which Plaintiff’s treating

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psychiatrists believed was both severe and disabling.

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Plaintiff argues that the ALJ’s error at the step two determination is not evaluated

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under a harmless error analysis, citing Keyser, 648 F.3d at 725. Plaintiff's reliance on

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Keyser is misplaced. In Keyser, “the written decision did not document the ALJ's

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application of the [psychiatric review] technique and did not include a specific finding as

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to the degree of limitation in any of the four functional areas.” Keyser, 648 F3d at 726.

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Instead, the ALJ simply referenced and adopted a Psychiatric Review Technique Form

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(“PRTF”) completed by a state agency medical consultant and “did not state his findings

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as to the four functional areas.” Id. As a result, the ALJ's analysis at step three also was

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erroneous because he never addressed whether the claimant's mental impairment met or

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equaled a listed impairment. The court found that this error was “understandable given

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the ALJ's adoption” of the state agency medical consultant's “conclusion that the mental

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impairment was not severe.” Id at 727.

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Unlike Keyser, the ALJ in this case did not fail to document the determination of

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the severity of Plaintiff’s mental impairment, and Plaintiff does not argue that any alleged
error in the step two determination tainted the ALJ’s step three analysis, rather, Plaintiff
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submits that “the ALJ’s disregard of plaintiff’s mental impairments at step two adversely

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affected her evaluation of plaintiff’s residual functional capacity (RFC) at step four.”

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(Doc. 33, at 3) Because the ALJ’s written decision documented the ALJ’s application of

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the technique and also included a specific finding as to the degree of limitation in the four

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functional areas, the Court finds that this case, unlike Keyser, should be reviewed under a

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harmless error analysis. See Gray v. Comm'r of Soc. Sec. Admin., 365 Fed Appx 60, 61

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(9th Cir. 2010)(unpublished decision) (rejecting argument that the ALJ erred at step two

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by determining certain impairments were nonsevere, because any alleged error was

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harmless since “the ALJ concluded that [claimant's] other medical problems were severe

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impairments”); see also Mondragon v. Astrue, 364 Fed Appx 346, 348 (9th Cir.

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2010)(unpublished decision) (“Any alleged error at step two was harmless because step
two was decided in [claimant]'s favor with regard to other ailments.”).
B. Step Four: Residual Functional Capacity Determination

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The ALJ found Plaintiff had the residual functional capacity to perform the full

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range of medium work as defined in 20 C.F.R. 404.1567(c). In doing so, the ALJ gave

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great weight to the opinion of Dr. Yost, gave little weight to the opinion of Dr. Wilcox,

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gave little weight to the VA disability determination, and found Plaintiff to be not

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credible.
The ALJ found that, “in terms of the claimant’s alleged depression, the medical
evidence of record reflects that claimant’s mental impairment has been treated through

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medication and counseling, and that claimant has been able to control his symptoms in
this manner.” Tr. 21 The ALJ cited as support for this statement one treatment note from
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a clinical nurse specialist at the Veteran’s Hospital, assessing Plaintiff with depression,

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dependent personality disorder, and fibromyalgia, but with “fair control of Major

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[Depression] with current meds.” Tr. 289.

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The ALJ further found that “[t]here is little, if any, evidence in the medical record

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that indicates that claimant has been unable to work due to his mental impairment.

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Indeed, the medical evidence of record is replete with indications that claimant is able to

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perform his activities of daily living and that claimant could, indeed perform work.” Tr.

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21.
Plaintiff argues that the ALJ erred in her rejection of Plaintiff’s testimony and the
treating psychiatrist’s opinion, and by giving little weight to the VA’s disability

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determination. The Commissioner argues that the ALJ reasonably found that Plaintiff

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retained the residual functional capacity to perform the full range of medium work, and

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that this finding is supported by substantial evidence and free of harmful legal error.

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1. Evaluation of Medical Source Opinions
a. Treating Psychiatrist Dr. Wilcox

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Plaintiff argues that the ALJ erred by rejecting Dr. Wilcox’s opinion. The
undersigned agrees. The ALJ gave little weight to Dr. Wilcox’s opinion3, finding it to be

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“not consistent with the claimant’s global assessment of functioning (GAF) scores, which

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reflected only mild symptoms. Tr. 21. GAF Scores range from 1-100. American

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Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.),

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at 32. “A GAF score is a rough estimate of an individual's psychological, social, and
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Described in Section I.A. of this order.
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occupational functioning used to reflect the individual's need for treatment.” Vargas v.

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Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). In arriving at a GAF Score, the

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clinician considers psychological, social, and occupational functioning on a hypothetical

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continuum of mental health illness. Diagnostic and Statistical Manual of Mental
Disorders, at 34.
The ALJ found that “Doctor Wilcox’s opinion that claimant is incapable of even
low stress jobs due to his mental impairment is incompatible with the claimant’s GAF

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scores, especially when the GAF scores are evaluated longitudinally.” Tr. 22 (Noting

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GAF scores in the record ranging from 50 to 64, through a time period from August 30,

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2007 to November 18, 2008).

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"[T]he ALJ may only reject a treating or examining physician's uncontradicted

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medical opinion based on 'clear and convincing' reasons.' " Carmickle v. Commissioner,

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533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.

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1995)). Where such an opinion is contradicted, it may be rejected for specific and

19

legitimate reasons that are supported by substantial evidence in the record. Id. When

20

rejecting the opinion of a treating physician, the ALJ can meet this " 'burden by setting

21

out a detailed and thorough summary of the facts and conflicting clinical evidence,

22
23

stating [her] interpretation thereof, and making findings.' " Tommasetti, 533 F.3d 1035,

24

1041 (9th Cir. 2008)(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

25

The Social Security Administration has explained that an ALJ's finding that a treating

26
27
28

source medical opinion is not well-supported by medically acceptable evidence or is
inconsistent with substantial evidence in the record means only that the opinion is not
- 16 -

1

entitled to controlling weight, not that the opinion should be rejected. Orn, 495 F.3d 625,

2

632 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527). Treating source medical opinions are

3

still entitled to deference and, “[i]n many cases, will be entitled to the greatest weight and

4
5

should be adopted, even if it does not meet the test for controlling weight." Orn, 495 F.3d

6

at 632; see also Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983) ("If the ALJ wishes

7

to disregard the opinion of the treating physician, he or she must make findings setting

8

forth specific, legitimate reasons for doing so that are based on substantial evidence in the

9
10

record.") Here, Dr. Wilcox’s opinion is contradicted by the opinion of consultative

11

examiner Dr. Yost. Thus, the ALJ must offer specific and legitimate reasons supported by

12

substantial evidence to reject Dr. Wilcox’s opinion.

13
14

The ALJ’s reason for rejecting Dr. Wilcox’s opinion is neither legitimate nor

15

supported by substantial evidence in the record. Though the ALJ referred to Plaintiff’s

16

GAF scores as reflecting only mild symptoms, the medical evidence of record

17
18

demonstrates that at least two of the GAF scores during the relevant period reflected

19

serious symptoms (Tr. 251 (GAF score of 49) and Tr. 642 (GAF score of 50)), and Dr.

20

Yost diagnosed Plaintiff with a GAF score of 51-60, reflecting moderate symptoms (Tr.

21

347). That some of the GAF scores reflected “mild symptoms” was consistent with Dr.

22
23

Wilcox’s opinion that Plaintiff’s impairments would produce “good days” and “bad

24

days.” Tr. 483.

25

Moreover, to the extent the ALJ rejected Dr. Wilcox’s opinion as incompatible

26
27
28

with the GAF scores, the ALJ failed to explain why a GAF score, a generalized
assessment, superseded Dr. Wilcox’s more precise opinions as to Plaintiff’s ability to
- 17 -

1

work. It is important to keep in mind that, as a global reference intended to aid in

2

treatment, ‘a GAF score does not itself necessarily reveal a particular type of limitation

3

and is not an assessment of a claimant's ability to work.’ Stokes v. Astrue, 2009 WL

4
5

2216785, at *7 (M.D.Fla. July 23, 2009); see also 65 Fed.Reg. 50764 (Aug 21, 2000)

6

(Commissioner cautioning that the GAF scale does not have a direct correlation to the

7

severity requirements in Agency’s mental disorders listings.”) “While a GAF score may

8

be of considerable help to the ALJ in formulating the RFC, it is not essential to the RFC’s

9
10

accuracy” Howard v. Comm’r Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002), and does “not

11

dispositively assess a plaintiff’s ability to work.” Garcia v. Astrue, 2011 WL 4479843 *5

12

(E.D. Cal. 2011). In other words, the Commissioner has already acknowledged and

13
14

anticipated that there will be inconsistencies between a claimant’s GAF scores and an

15

assessment of a claimant’s ability to do work; thus it was error in this case to use this

16

data, provided by Dr. Wilcox as well as Plaintiff’s other treating sources, as a general

17
18

assessment to disprove Dr. Wilcox’s more detailed, expert functional assessment.

19

Accordingly, the ALJ erred in rejecting Dr. Wilcox’s opinion on the basis of the GAF

20

scores alone.

21

b. Consultative Examiner Dr. Yost

22
23

Plaintiff argues that the ALJ erred in purporting to give “great weight” to Dr.

24

Yost’s opinion, but subsequently ignoring the parts of his report which showed that

25

Plaintiff’s depression causes more than a slight limitation in a work setting. The ALJ

26
27
28
- 18 -

1

gave Dr. Yost’s opinion4 “great weight” and concluded that “Dr. Yost determined that

2

claimant’s mental impairments, for the most part, did not significantly limit claimant’s

3

abilities to perform work related activities.” Tr. 21. By finding that Plaintiff could do the

4
5

full range of medium work, the ALJ discounted Dr. Yost’s report of moderate limitations.

6

An ALJ need not discuss all evidence presented to her, but must explain why “significant

7

probative evidence has been rejected.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d

8

1393, 1394-95 (9th Cir. 1984). Here, the functional limitations that the ALJ discounted

9
10

were both significant and probative. The Commissioner is required to consider the

11

claimant’s RFC for work activity on a “regular and continuing basis,” see 20 C.F.R. §

12

404.1545(c), and the moderate limitations reported by Dr. Yost went directly to this

13
14

issue. This evidence directly contradicted the ALJ’s finding that Plaintiff’s activities of

15

daily living indicate that Plaintiff’s mental impairments have minimal impact, if any at

16

all, on his ability to sustain work related activities. The ALJ did not give any reason for

17
18

discounting Dr. Yost’s proposed moderate functional limitations due to Plaintiff’s mental

19

health impairment, yet failed to include these limitations in her RFC assessment. This

20

was error.

21

2. VA Disability Determination

22
23

“Because social security disability and VA disability programs ‘serve the same

24

governmental purpose-providing benefits to those unable to work because of a serious

25

disability,’ the ALJ must give ‘great weight to a VA determination of disability.’” Turner

26
27
28

v Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1225 (9th Cir. 2010) (quoting McCartey v.
4

Described in Section I.A. of this order.
- 19 -

1

Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)). However, an ALJ “ ‘may give less

2

weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing

3

so that are supported by the record.’ “ Id. (quoting McCartey, 298 F.3d at 1076).

4
Here, the VA determined that Plaintiff had a 70 percent service connected

5
6

disability: a 50 percent rating based on his major depressive disorder, and a 40 percent

7

rating based on his fibromyalgia. Tr. 226 An evaluation of 50 percent in the general

8

rating formula for mental disorders is assigned for occupational and social impairment

9
10

with reduced reliability and productivity due to such symptoms as: flattened affect;

11

circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a

12

week; difficulty in understanding complex commands; impairment of short- and long-

13
14

term memory (e.g., retention of only highly learned material, forgetting to complete

15

tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and

16

mood; difficulty in establishing and maintaining effective work and social relationships.

17
18

38 C.F.R. §4.130.

19

A VA determination of disability is ordinarily entitled to great weight. Berry v.

20

Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010); Valentine v. Comm’r of Soc. Sec. Admin.,

21

574 F.3d 685, 694-95 (9th Cir. 2009); McCartey, 298 F.3d at 1076. However, an ALJ may

22
23

give less weight to the VA’s decision if the ALJ provides “persuasive, specific, valid

24

reasons for doing so that are supported by the record.” Berry, 622 F.3d at 1236;

25

Valentine, 574 F.3d at 694-95; McCartey, 298 F.3d at 1076; see also Turner, 613 F.3d at

26
27
28

1225.
The ALJ considered, but gave little weight to the VA’s disability rating,
- 20 -

1

explaining that the VA rating was not consistent with Plaintiff’s current condition, that

2

the Plaintiff had testified, and the medical evidence of record contained statements from

3

Plaintiff, that he is able to perform his activities of daily living with minimal to no

4
5
6
7
8

impact, and because Plaintiff testified that he quit his job at PetSmart due, in part, to the
fact that the VA found him disabled and awarded him benefits. Tr. 23.
The undersigned finds these reasons unpersuasive, and invalid as a basis to reject
the VA’s disability rating. First, to the extent the ALJ rejected the VA rating as

9
10

inconsistent with Plaintiff’s current condition, the ALJ failed to explain in what way the

11

VA rating was inconsistent with Plaintiff’s current condition based on substantial

12

evidence in the record. This argument is contrary to McCartey, which requires that an

13
14

ALJ's decision to give less than great weight to a VA Rating Decision must be based on

15

the record. 298 F.3d at 1076 (noting the “marked similarity” between the social security

16

and veteran's disability programs).

17
18

The Commissioner argues that the VA rating was properly rejected because the

19

VA’s finding of a 50 percent disability rating due to depression is inconsistent with the

20

ALJ’s finding that Plaintiff’s depression was not severe. (Doc. 32, at 9) This type of

21

circular logic, however, is an invalid reason for rejecting the VA rating. The ALJ’s

22
23

finding that Plaintiff’s depression was not “severe” does not constitute substantial

24

evidence in the record, and cannot be a basis for rejecting the VA disability rating.

25

To the extent that the ALJ rejected the disability rating because it was inconsistent

26
27
28

with Plaintiff’s reports of activities of daily living, the record reflects that Dr. Jones, the
psychiatrist who examined Plaintiff for purposes of his VA disability rating, fully
- 21 -

1

acknowledged that Plaintiff was able to maintain hygiene and complete basic activities of

2

daily living independently. Tr. 251. Dr. Jones concluded, however, that despite his ability

3

to complete basic activities of daily living and meet family responsibilities, Plaintiff was

4
5

unable to meet work demands and responsibilities. Tr. 251. Such a finding demonstrates

6

the reason why the Ninth Circuit has held that daily activities may be grounds for an

7

adverse credibility finding “if a claimant is able to spend a substantial part of his day

8

engaged in pursuits involving the performance of physical functions that are transferable

9
10

to a work setting.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989) (emphasis omitted).

11

Obviously, Dr. Jones considered Plaintiff’s ability to complete activities of daily living as

12

skills that were not transferable to a work setting, most likely due to “difficulty

13
14
15
16

appropriately interacting with others due to low stress tolerance and irritability,” as well
as Plaintiff’s social isolation. Tr. 251.
Accordingly, the undersigned finds that the ALJ’s stated reasons for giving little

17
18
19
20
21

weight to the VA disability determination is not persuasive, and not supported by the
record.
3. Plaintiff’s Credibility
Plaintiff argues that the ALJ improperly rejected Plaintiff’s testimony. The ALJ

22
23

found Plaintiff’s medically-determinable impairments “could reasonably be expected to

24

cause” the symptoms Plaintiff alleged. Tr. 21. The ALJ nonetheless concluded that

25

Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these

26
27
28

symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” Id.
- 22 -

1

While an ALJ is responsible for determining the credibility of a claimant, an ALJ

2

cannot reject a claimant's testimony without giving clear and convincing reasons.

3

Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater,

4
5

157 F.3d 715, 722 (9th Cir. 1998). In addition, the ALJ must specifically identify the

6

testimony she finds not to be credible and must explain what evidence undermines the

7

testimony. Id. The evidence upon which the ALJ relies must be substantial. Orteza v.

8

Shalala, 50 F.3d 748, 750 (9th Cir. 1995); Bunnell v. Sullivan, 947 F.2d 341, 345- 46 (9th

9
10

Cir.1991)(en banc). The ALJ failed to identify specifically what symptoms and testimony

11

provided by the Plaintiff were inconsistent and unpersuasive. Holohan, 246 3d at 1208.

12

General findings are insufficient; rather the ALJ must identify what evidence is not

13
14
15

credible and what evidence undermines Plaintiff's complaints. Dodrill v. Shalala, 12 F.3d
915, 918 (9th Cir.1993). 5

16
17
18
19
20
21
22
23
24
25
26
27
28

5

The Commissioner argues that the “clear and convincing” standard for rejecting
a claimant’s subjective complaints “exceeds that set forth in Bunnell,” that no Ninth
Circuit panel espousing a “clear and convincing” standard has sat en banc with the
authority to overturn existing Ninth Circuit precedent, and that the Bunnell standard is
more consistent with the Act’s requirement that findings of fact be supported by
substantial evidence. Defendant’s argument is unavailing. First of all, a requirement of
“clear and convincing reasons” is distinct from a clear and convincing evidentiary
standard. Cf. Bayliss v. Barnhart, 427 F.3d 1211, 1216 )(9th Cir. 2005)(“To reject an
uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and
convincing reasons that are supported by substantial evidence.” (emphasis added)).
Secondly, Bunnell itself requires that an ALJ “specifically make findings which support”
the conclusion that the claimant’s allegations of severity are not credible. 947 F.2d at
345. These findings must be “properly supported by the record” and “must be sufficiently
specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s
testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony
regarding pain.” Id. at 345-47 (quotation omitted). Subsequent cases have explained that
“unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he
or she may only find an applicant not credible by making specific findings as to
credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec.
Cir. 2006) (emphasis added); see also Lingenfelter v.
Admin., 466 F.3d 880, 883 (9th th
Astrue, 504 F.3d 1028, 1036 (9 Cir. 2007). Thus, the cases applying the “clear and
convincing” standard in no way overturn Bunnell. Numerous cases have applied the
“clear and convincing” standard, and this Court is in no position to overrule them. See,
- 23 -

1

While it is not this Court’s role to second guess the ALJ’s interpretation, the

2

findings made in rejecting the subjective complaints must be specific to provide the Court

3

enough information to determine that the ALJ did not reject the claim arbitrarily, but

4
5

based his decision on permissible factors. Orteza, 50 F.3d at 750; Bunnell, 947 F.2d at

6

345-46. In assessing the claimant's credibility, the ALJ may consider ordinary techniques

7

of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent

8

statements about the symptoms, and other testimony from the claimant that appears less

9
10

than candid; unexplained or inadequately explained failure to seek or follow a prescribed

11

course of treatment; the claimant's daily activities; the claimant's work record;

12

observations of treating and examining physicians and other third parties; precipitating

13
14

and aggravating factors; and functional restrictions caused by the symptoms. Smolen, 80

15

F.3d at 1284; see also Robbins v. Social Security Sec. Admin., 466 F.3d 880, 884 (9th Cir.

16

2006) ("To find the claimant not credible, the ALJ must rely either on reasons unrelated

17
18
19
20
21

to the subjective testimony (e.g., reputation for dishonesty), on conflicts between his
testimony and his own conduct; or internal contradictions in that testimony.").
The ALJ considered Plaintiff’s allegations that the chronic pain from his
fibromyalgia prevented him from engaging in work related activities, specifically that he

22
23

quit his past relevant work as a dog groomer, due to the pain in his back and below his

24

neck, and that Plaintiff’s mental impairments interfere with his sleep, as he cannot “stop

25

thinking” so that he cannot relax and fall asleep. The ALJ found that, although Plaintiff’s

26
27
28

e.g., Taylor v. Comm’r of Soc. Sec. Admin., 1228, 1234 (9th Cir. 2011); Vasquez v. Astrue,
572 F.3d at 591; Lingenfelter, 504 F.3d at 1036; Orn, 495 F.3d at 635; Robbins, 466 F.3d
at 883; Smolen, 80 F.3d at 1281; Dodrill, 12 F.3d at 918.
- 24 -

1

medically determinable impairments could reasonably be expected to cause the alleged

2

symptoms, Plaintiffs “statements concerning the intensity, persistence and limiting

3

effects of these symptoms are not credible to the extent they are inconsistent with the

4
5

above residual functional capacity assessment.” Tr. 21.

6

Because the ALJ found that Provencio's medically determinable impairments

7

could reasonably be expected to cause some degree of the symptoms alleged, and because

8

she made no findings of malingering, the ALJ’s reasons for discrediting Plaintiff’s

9
10

testimony must be “clear and convincing.” See Lester, 81 F.3d at 834. (“Unless there is

11

affirmative evidence showing that the claimant is malingering, the Commissioner's

12

reasons for rejecting the claimant's testimony must be ‘clear and convincing.’”)

13
14

The ALJ observed that, in terms of Plaintiff’s fibromyalgia, Plaintiff’s own

15

testimony and function reports indicate that his activities of daily living were minimally

16

impacted. Tr. 21. The ALJ also noted that Plaintiff has failed to follow through with an

17
18
19
20
21

exercise program to help alleviate his fibromyalgia, or attend self-help classes or group
therapy classes. Tr. 21.
The ALJ further concluded that, in terms of Plaintiff’s depression, the medical
evidence of record reflects that Plaintiff’s mental impairment has been treated through

22
23

medication and counseling, and that Plaintiff has been able to control his symptoms in

24

this manner. Additionally, the ALJ concluded that Plaintiff’s activities of daily living

25

indicate that Plaintiff’s mental impairments have minimal impact, if any at all, on his

26
27
28

ability to sustain work related activities. Tr. 21.
Finally, the ALJ found Plaintiff “less than credible concerning the severity of his
- 25 -

1

impairments,” noting that Plaintiff had lived alone and was self-sufficient in all of his

2

activities of daily living and chores, that Plaintiff had purchased a home, obtained

3

roommates, and continued to perform chores and activities without assistance. Tr. 22.

4
5

The ALJ observed that Plaintiff spends 2-3 hours a day playing videogames, is very

6

competitive, and socializes and visits with his friends, spends 45 minutes on the computer

7

chatting and shopping, and is able to manage his finances and drive back and forth to

8

California four times a year to visit his family. Tr. 22.

9
10

First, performance of daily activities is not necessarily a clear and convincing

11

reason to discredit plaintiff's testimony. Plaintiff's activities of daily living “do[ ] not in

12

any way detract from h[is] credibility as to h[is] overall disability.” Vertigan v. Halter,

13
14

260 F.3d 1044, 1050 (9th Cir. 2001). Not all of these activities support the ALJ’s rejection

15

of Plaintiff’s complaints. As the Ninth Circuit has held, “[t]he mere fact that a plaintiff

16

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

17
18

walking for exercise, does not in any way detract from [his] credibility as to [his] overall

19

disability.” Webb, 433 F.3d at 687-88 (citing Vertigan, 260 F.3d at 1050.) (“[o]ne does

20

not need to be ‘utterly incapacitated’ in order to be disabled.”)). First, the ALJ failed to

21

clarify the extent to which plaintiff engages in these activities. Although plaintiff states

22
23

he cooks three or four times a week, he otherwise makes “easy meals” which only require

24

heating in the microwave. Tr. 50, 174. He does laundry about once a month and dusting

25

about once every two weeks. Tr. 193. He drives once or twice a week. Tr. 47. He has

26
27
28

problems doing household chores like washing dishes, sweeping and dusting due to aches
in his back, arms and fingers. Tr. 50. He does watch television and play computer games
- 26 -

1

but states doing so distracts from his worries. Tr. 46, 574. Plaintiff’s girlfriend reported

2

that once or twice a week for ten to forty-five minutes, depending on the chore, he does

3

light duties around the house, e.g. straightening up, loading the dishwashing, or laundry,

4
5

when he feels able. Tr. 157. Two to three times a month, he spends thirty to forty minutes

6

shopping, either at the store, online, or by phone or mail. Tr. 158. Most of his time is

7

spent before the television, a change from when he did many outdoor sports and activities

8

before he became disabled. [T. 159, 192].

9
10

The ALJ also found that plaintiff could finish tasks and relied on this finding to

11

reject his symptoms. Tr. 21. In making this finding, she cited a questionnaire which

12

merely asked if plaintiff could finish activities like “a conversation, chores, reading, [or]

13
14

watching a movie.” Tr. 21, 204. The questionnaire did not specify what type of chores or

15

the time needed to do the chores. Tr. 204. On that same page of the questionnaire,

16

Plaintiff indicated that he had difficulty concentrating and completing tasks. Tr. 204.

17
18
19
20
21

The Court finds that these reasons stated above for disbelieving Plaintiff’s
testimony were invalid.
In rejecting plaintiff’s complaints of pain and limitation, the ALJ also cited
plaintiff’s alleged failure to participate in an exercise program to help lessen his

22
23

fibromyalgia pain. She also noted that plaintiff did not wish to attend group therapy

24

classes and refused to attend self-help classes or the Arthritis Foundation. Tr. 21.

25

Plaintiff argues that the ALJ’s finding that Plaintiff failed to follow a prescribed

26
27
28

course of treatment is not based on substantial evidence. Plaintiff submits that Plaintiff
did attempt exercise programs, but with no relief of his pain, or aggravation of his pain.
- 27 -

1

Plaintiff reported several attempts to exercise, but repeatedly reported that exercise either

2

did not relieve his pain or actually aggravated his pain. Tr. 58, 421, 537-38, 567, 584,

3

593, 628, 639. Thus, the ALJ improperly considered Plaintiff’s failure to follow through

4
5
6
7
8

with exercise as a factor in her credibility determination. Plaintiff’s explanation for his
failure to exercise was adequately documented in the medical records.
While plaintiff preferred not to attend group therapy classes because he was
uncomfortable in group settings, Tr. 659, the record demonstrates that Plaintiff received

9
10

individualized therapy for pain management and mental health care.

11

noncompliance that is attributable to a “personal preference,” rather than a mental

12

Ordinarily,

impairment, is reasonably considered by the ALJ in concluding that a claimant is

13
14

resisting treatment. See Molina, 674 F.3d at 1114 n.6 (9th Cir. 2012). In this case,

15

Plaintiff’s therapist discussed individualized therapy with Plaintiff, and concluded that it

16

would be less helpful for him than a group interaction and learning. With no evidence

17
18
19
20
21

that Plaintiff’s resistance was attributable to his mental impairment, it was reasonable for
the ALJ to consider this as a factor in her credibility determination.
Finally, Plaintiff argues that the ALJ’s reliance on plaintiff’s alleged refusal to
attend self-help classes or the Arthritis Foundation is improper. Plaintiff argues that the

22
23

records cited by the ALJ did not provide any information on whether or not plaintiff

24

attended or how beneficial they may or may not be. The record cited by the ALJ,

25

however, indicates that Plaintiff did not go the Arthritis Foundation “as suggested,”

26
27
28

stating that he “forgot.” Tr. 293. In assessing a claimant’s credibility, the ALJ “may
properly rely on ‘unexplained or inadequately explained failure to seek treatment or to
- 28 -

1

follow a prescribed course of treatment.’” Tommasetti, 533 F.3d at 1039 (quoting Smolen,

2

80 F.3d at 1284); Fair, 885 F.2d at 603. Plaintiff’s failure to follow through with his

3

doctor’s recommendations is an inadequately explained failure to seek treatment, and is

4
5

properly considered by the ALJ as a factor in assessing Plaintiff’s credibility.

6

Plaintiff argues that an ALJ may deny a claim for failure to follow prescribed

7

treatment only if the claimant fails, without good reason, to follow treatment prescribed

8

by his physician and such treatment can restore his ability to work, and that in this case

9
10

none of these requirements are met. Plaintiff submits that there’s no evidence that

11

plaintiff’s physician prescribed any of these activities or that they would restore his

12

ability to work. As the Commissioner correctly argues, however, a failure to seek

13
14
15
16

treatment may be considered as a factor in the ALJ’s credibility determination, see
Molina v. Astrue, 674 F.3d 1104, 1114 n.6 (9th Cir. 2012), and was so considered here.
Though the records demonstrate that Plaintiff preferred individual therapy to

17
18

group sessions and did, at times, attempt to exercise per his doctor’s recommendation, the

19

record also demonstrates that Plaintiff did not follow through with recommendations to

20

visit the Arthritis Foundation and attend fibromyalgia self-help classes. Tr. 293.

21

Consequently, the ALJ properly took this factor into consideration in making a

22
23
24
25

determination of Plaintiff’s credibility.
Though an ALJ’s error in improperly rejecting a claimant’s testimony may be
harmless so long as there remains substantial evidence supporting the ALJ’s decision and

26
27
28

the error “does not negate the validity of the AJL’s ultimate conclusion,” see Molina, 674
F.3d at 1115, in this case the Court finds that the reasons the ALJ properly provided for
- 29 -

1

discrediting Plaintiff’s testimony do not provide substantial evidence in support of the

2

ALJ’s conclusion. Plaintiff’s failure to seek group therapy and visit the Arthritis

3

Foundation are not sufficient reasons to find Plaintiff’s entire testimony invalid. Most

4
5

importantly, the Court concludes that the ALJ did not adequately assess Plaintiff’s ability

6

to maintain sustainable work during a standard work week in a realistic work setting. The

7

ALJ’s analysis focused primarily on Plaintiff’s reported activities of daily living and how

8

these activities somehow rendered his statements concerning the intensity, persistence

9
10
11
12

and limiting effects of his symptoms “not credible.”
The Court declines to instruct the ALJ to credit Plaintiff’s testimony as true,
however, because it is unclear which testimony the ALJ disbelieved to begin with, and

13
14

certain testimony such as Plaintiff’s claim of being unable to work is not the type of

15

subjective symptom testimony entitled to be taken as true. See 20 C.F.R. §§ 404.1527,

16

404.1527(e)(1) (The Commissioner is “responsible for making the determination or

17
18

decision about whether [the claimant] meet[s] the statutory definition of disability.”).

19

4. RFC Assessment

20

Finally, in her RFC assessment the ALJ found that plaintiff’s mental impairments

21

have a “minimal impact, if any at all, on his ability to sustain work related activities.” T.

22
23

21. Her purported reasons for this conclusion are twofold: (1) plaintiff’s activities of daily

24

living, and (2) her belief that plaintiff’s mental impairments are controllable by

25

medication and counseling. Tr. 21. The Commissioner's findings are not supported by

26
27

substantial evidence in the record as a whole.

28
- 30 -

1

First, the ALJ erred by giving controlling weight to Dr. Yost’s opinion, but failing

2

to acknowledge the limitations Dr. Yost ascribed to Plaintiff in the ALJ’s RFC

3

determination. Melton v. Astrue, 2010 WL 3853195, at *8 (D.Or. 2010), aff'd., 442

4
5

Fed.Appx. 339 (9th Cir. 2011) (ALJ erred in her assessment of plaintiff's RFC where the

6

assessment included plaintiff's restriction to simple, repetitive tasks, but did not include

7

plaintiff's mild-to-moderate limitations in maintaining concentration, persistence, or

8

pace). See also Betancourt v. Astrue, 2010 WL 4916604, at *3–4 (C.D.Cal. Nov.27,

9
10

2010) (where the ALJ accepted medical evidence of plaintiff's limitations in maintaining

11

concentration, persistence, or pace, a hypothetical question to the VE including plaintiff's

12

restriction to “simple, repetitive work” but excluding plaintiff's difficulties with

13
14

concentration, persistence, or pace resulted in a VE's conclusion that was “based on an

15

incomplete hypothetical question and unsupported by substantial evidence.”). In this case

16

the ALJ accepted evidence of Plaintiff's moderate limitations in the ability to perform

17
18

activities within a schedule, maintain regular attendance, and be punctual within

19

customary tolerances, and to complete a normal workday and workweek without

20

interruptions from psychologically based symptoms and to perform at a consistent pace

21

without an unreasonable number and length of rest periods. Thus, the RFC, which failed

22
23

to include these limitations, is materially incomplete in light of the evidence in the record

24

and the ALJ's own findings.

25

Because the ALJ did not reject Dr. Yost’s opinion, it was error not to include these

26
27
28

limitations in the residual functional capacity, as they do describe function and convey
the extent of Plaintiff’s mental functional capacity.
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1

Second, the ALJ’s conclusion that Plaintiff’s depression has been treated through

2

medication and counseling, and that Plaintiff has been able to control his symptoms in

3

this manner is not supported by the substantial evidence in the record. The ALJ’s

4
5

conclusion was based on one treatment note from a clinical nurse specialist, and in

6

making her findings based on this single treatment note, the ALJ disregarded all of the

7

treatment notes from Plaintiff’s treating psychiatrists and psychologists, as well as

8

examination notes from two different psychiatrists who examined Plaintiff.

9
10

Viewing the record as a whole, it is clear that all doctors who examined claimant

11

agreed that claimant suffers from a mental impairment with at least some significant

12

limitations. The ALJ rejected this strong evidence in favor of insubstantial evidence-i.e.,

13
14
15
16

the single report of a clinical nurse specialist, combined with the Plaintiff’s ability to
perform activities of daily living that are not necessarily transferable to a work situation.
It was improper for the ALJ to selectively reference plaintiff's treatment records to

17
18

support her conclusion, while ignoring other treatment records contradicting that

19

conclusion, such as plaintiff's GAF scores and records from his treating physician.

20

Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (stating that it is error for an ALJ

21

to ignore or misstate the competent evidence in the record in order to justify her

22
23

conclusion). See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (stating that an

24

ALJ is not permitted to reach a conclusion “simply by isolating a specific quantum of

25

supporting evidence”); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982) (“[A]n

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27
28

ALJ must weigh all the evidence and may not ignore evidence that suggests an opposite
conclusion.”) (citation omitted).
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1

Therefore, the ALJ's finding that Plaintiff’s mental impairment has a minimal, if

2

any, impact on his ability to sustain work related activities is not supported by substantial

3

evidence.

4
5

IV.

APPROPRIATE REMEDY ON REMAND

6

Plaintiff argues that the appropriate remedy is to remand the case for additional

7

administrative proceedings. Plaintiff further argues that, on remand, the Court should

8

direct the Commissioner to credit Plaintiff’s testimony regarding his symptoms, credit

9
10
11
12

Dr. Wilcox’s opinion, and give great weight to the VA disability determination.
The decision to remand for further development of the record or for an award of
benefits is within the discretion of the Court. 42 U.S.C. § 405(g); see Harman v. Apfel,

13
14

211 F.3d 1172, 1173-74 (9th Cir. 2000). This Circuit has held that an action should be

15

remanded for an award of benefits where the ALJ has failed to provide legally sufficient

16

reasons for rejecting evidence, no outstanding issue remains that must be resolved before

17
18

a determination of disability can be made, and it is clear from the record that the ALJ

19

would be required to find the claimant disabled were the rejected evidence credited as

20

true. See, e.g., Varney v. Sec’y of HHS, 859 F.2d 1396, 1400 (9th Cir. 1988) (Varney II).

21

The ALJ improperly rejected Dr. Wilcox’s medical opinion that Plaintiff is “incapable of

22
23

even ‘low stress’ jobs” because he is too anxious,” and that Plaintiff would “frequently”

24

(34% to 66% of an 8-hour working day) have symptoms severe enough to interfere with

25

attention and concentration needed to perform even simple work tasks. Tr. 481.

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27
28

The Commissioner argues that Dr. Wilcox’s opinion that Plaintiff is incapable of
even low stress jobs is not a medical source opinion under the agency’s regulations
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1

because it does not specifically address Plaintiff’s limitations regarding his ability to do

2

basic work activities. (Doc. 32, at 18), citing 20 C.F.R. § 404.1513(c)(1). While

3

Commissioner is partly correct, that Dr. Wilcox’s opinion is not a medical source opinion

4
5

regarding Plaintiff’s physical capabilities, the Commissioner overlooks the second part of

6

the regulation, which describes a medical source finding regarding mental capabilities as

7

an opinion “about [claimant’s] ability to understand, to carry out and remember

8

instructions, and to respond appropriately to supervision, coworkers, and work pressures

9
10

in a work setting. 20 C.F.R. § 404.1513(c)(2). In determining that Plaintiff could not

11

work in even a low stress situation, Dr. Wilcox was appropriately addressing Plaintiff’s

12

ability to “respond appropriately to … work pressures in a work setting.” Id. Moreover,

13
14

though the Commissioner is correct in arguing that medical source opinions are not

15

binding on an ALJ with respect to the existence of an impairment or the ultimate

16

determination of disability, a treating physician may render an opinion on the ultimate

17
18

issue of disability, and such uncontroverted opinions may not be rejected without clear

19

and convincing reasons for doing so, or, if controverted, by providing specific and

20

legitimate reasons supported by substantial evidence in the record. See Reddick, 157 F.3d

21

at 725. Lester, 81 F.3d at 830, see also Benecke v. Barnhart, 379 F.3d 587, 591 & n.1 (9th

22
23
24
25

Cir. 2004).
Remand for further proceedings is appropriate in this case, however, because even
after applying the credit as true rule to improperly rejected evidence, it is not clear from

26
27
28

the record that the ALJ would be required to find Plaintiff disabled. Here there are issues
that require resolution before a finding of disability can be made. As discussed above, the
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1

ALJ erred not only in rejecting the opinion of Dr. Wilcox, but also in evaluating the

2

opinion of the consultative examiner, Dr. Yost. These doctors reached different opinions.

3

While Dr. Wilcox’s opinion suggests that Plaintiff is incapable of even low stress work

4
5

due to anxiety, Dr. Yost’s opinion suggests that Plaintiff is limited in functional

6

categories related to low levels of motivation, as well as hypersomnia and insomnia, but

7

did not find significant limitations arising from Plaintiff’s anxiety. Thus, it is unclear

8

from the record that the ALJ would be required to find plaintiff disabled even if the

9
10
11
12

evidence is credited as true.
There are still outstanding issues in Provencio's case regarding his residual
functional capacity and his ability to perform his past relevant work, and the jobs he

13
14

might be capable of performing given his mental limitations. A remand for further

15

proceedings would allow the ALJ to properly address Drs. Wilcox’s and Yost’s opinions

16

and the VA disability determination, more thoroughly address Plaintiff’s credibility, and

17
18

formulate an RFC taking into account all of Plaintiff’s mental limitations.

19

Furthermore, the ALJ resolved this without calling upon a vocational expert to

20

consider all of the testimony that is relevant to the case. This court recently wrote that

21

“[i]n cases where the vocational expert has failed to address a claimant's limitations as

22
23

established by improperly discredited evidence, we consistently have remanded for

24

further proceedings rather than payment of benefits.” Id. at 1180. In this case, no

25

vocational expert testified as to Plaintiff’s ability to work based on the limitations

26
27
28

described by Dr. Wilcox, Dr. Yost, and the VA disability determination. A remand for
further proceedings is therefore appropriate. See Stout, 454 F.3d at 1056-57.Thus,
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1

because there are “sufficient unanswered questions in the record,” the district court's

2

decision to remand the case for further administrative proceedings was not an abuse of

3

discretion. Harman, 211 F.3d at 1180.

4
5

Remand is also necessary to assess Plaintiff’s allegations concerning the severity

6

of his symptoms. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)(recognizing

7

that the court is not required to credit pain testimony and instead remanding for

8

reconsideration of plaintiff’s credibility); Bunnell v. Barnhart, 336 F.3d 1112, 1115-1116

9
10

(9th Cir. 2003) (remanding where outstanding issues, including ALJ’s reassessment of

11

plaintiff’s credibility, must be resolved before a disability determination can be made).

12

Though a court may credit a Plaintiff’s symptom testimony as true even where a remand

13
14

for further proceedings is needed, especially in cases where a plaintiff is of advanced age

15

and has suffered a “severe delay” in the application process, see Vasquez, 572 F.3d at

16

593–94, the undersigned declines to do so for the reasons outlined above.

17
18

IT IS ORDERED:

19

1.

Defendant’s decision denying disability insurance benefits is reversed.

20

2.

The case is remanded to Defendant for further proceedings consistent with

21

this Order.

22
23

3.

The Clerk is directed to enter judgment accordingly.

24

Dated this 20th day of June, 2012.

25
26
27
28
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