Debra Gale v. Carolyn W Colvin

Filing 27

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DEBRA GALE, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 15-8960-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on November 17, 2015, seeking review 26 of the Commissioner’s denial of disability benefits. The parties 27 filed a consent to proceed before a United States Magistrate Judge on 28 December 30, 2015. Plaintiff filed a motion for summary judgment on 1 October 19, 2016. Defendant filed a “Memorandum in Support of 2 Defendant’s Answer,” which the Court construes as Defendant’s cross- 3 motion for summary judgment, on November 14, 2016. 4 taken both motions under submission without oral argument. 5 7-15; “Order,” filed November 23, 2015. The Court has See L.R. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff asserts disability since October 10, 2010, based in 10 part on an alleged “severe psychotic disorder with documented auditory 11 hallucinations, paranoia, and other indicia of psychosis” (including 12 visual hallucinations) and “chronic major depression” (Administrative 13 Record (“A.R.”) 39, 48-50, 52, 161-69, 190). 14 abused cocaine until December 24, 2011, and also admits to a history 15 of alcohol abuse (A.R. 39, 47). 16 November 21, 2013, Plaintiff’s counsel said Plaintiff “still drinks 17 alcohol” but “doesn’t abuse it” (A.R. 39). 18 alcohol “abuse” approximately one month before the hearing (A.R. 47; 19 but see A.R. 61-62 (Plaintiff testified that she drinks “once in a 20 blue moon” and last drank a 40-ounce beer two weeks before the 21 hearing, and later testified that her last drink was a couple of days 22 or one week before the hearing)). Plaintiff admits she At an administrative hearing on Plaintiff said she stopped 23 24 An Administrative Law Judge (“ALJ”) found that Plaintiff has 25 severe mental depression, alcoholism and drug dependence (A.R. 23). 26 The ALJ also determined, however, that Plaintiff retains the residual 27 functional capacity to perform work at all exertional levels, limited 28 only by a preclusion from work requiring understanding, remembering 2 1 and carrying out detailed or complex tasks (A.R. 26-29 (relying on 2 non-examining state agency physician’s opinion at A.R. 85-86, and non- 3 examining state agency psychologist’s opinion at A.R. 93-97 for mental 4 limitations)). 5 opinions of Plaintiff’s treating psychiatrist, Dr. Thomas Hoffman – 6 the only treating or examining medical source to opine on Plaintiff’s 7 mental limitations. 8 Dr. Hoffman opined, inter alia, that Plaintiff would miss four or more 9 days of work per month due to her impairments, and that her “low This residual functional capacity contradicts the See A.R. 288-93, 360-64 (Dr. Hoffman’s opinions). 10 intellectual capacity” likely would impair Plaintiff’s ability to work 11 regardless of substance abuse (A.R. 293, 364). 12 13 A vocational expert testified that a person having the residual 14 functional capacity the ALJ found to exist could perform work as an 15 industrial cleaner, hand packager, and assembler (A.R. 68).1 16 relied on the vocational expert’s testimony to find Plaintiff not 17 disabled (A.R. 30-31). 18 looking at additional evidence (reportedly a March 2015 document from 19 Dr. Hoffman which is not part of the record) (A.R. 1-6). The ALJ The Appeals Council denied review after 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. section 405(g), this Court reviews the 24 Administration’s decision to determine if: (1) the Administration’s 25 findings are supported by substantial evidence; and (2) the 26 27 28 1 The vocational expert also testified that the maximum monthly rate of absenteeism for the jobs identified would be no more than two days per month (A.R. 71). 3 1 Administration used correct legal standards. See Carmickle v. 2 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 3 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 4 682 F.3d 1157, 1161 (9th Cir. 2012). 5 relevant evidence as a reasonable mind might accept as adequate to 6 support a conclusion.” 7 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 8 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 9 10 If the evidence can support either outcome, the court may 11 not substitute its judgment for that of the ALJ. 12 Commissioner’s decision cannot be affirmed simply by 13 isolating a specific quantum of supporting evidence. 14 Rather, a court must consider the record as a whole, 15 weighing both evidence that supports and evidence that 16 detracts from the [administrative] conclusion. But the 17 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 19 quotations omitted). 20 21 DISCUSSION 22 23 On the present record, the Court is unable to conclude that the 24 Administrations’s decision is supported by substantial evidence. 25 Remand is appropriate. 26 /// 27 /// 28 /// 4 1 2 I. Summary of the Records Regarding Plaintiff’s Mental Health Treatment 3 4 Plaintiff’s mental health treatment records are lengthy and 5 somewhat repetitious. Treating psychiatrist Dr. Thomas Hoffman 6 provided a “Mental Impairment Questionnaire” dated August 3, 2012 7 (A.R. 288-93).2 8 three months beginning July 2011 (A.R. 288; see also A.R. 320-32, 396- 9 97 (Dr. Hoffman’s treatment notes)). Dr. Hoffman had been treating Plaintiff every one to He diagnosed: (1) psychotic 10 disorder, not otherwise specified; (2) depressive disorder, not 11 otherwise specified; (3) cocaine dependence; (4) alcohol dependence; 12 and (5) borderline intellectual functioning (A.R. 288). 13 assigned Plaintiff a Global Assessment of Functioning (“GAF”) score of 14 43, indicating “[s]erious symptoms (e.g., suicidal ideation, severe 15 obsessional rituals, frequent shoplifting) OR any serious impairment 16 in social, occupational, or school functioning (e.g., no friends, 17 unable to keep a job)” (A.R. 288).3 18 Plaintiff uses drugs (cocaine and alcohol) “at times” (A.R. 288). 19 Hoffman noted that Plaintiff’s medications (Sertraline (Zoloft) and 20 Quietapine (Seroquel)) could cause drowsiness, but Plaintiff reported 21 none and often complained she cannot sleep (A.R. 288). 22 prognosis was “poor” (A.R. 288). Dr. Hoffman Dr. Hoffman reported that Plaintiff’s 23 24 25 26 27 28 2 The copy of the questionnaire provided to the Court is of poor quality and is very difficult to read. See A.R. 288-93. 3 Clinicians use the GAF scale to rate “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IVTR”) 34 (4th Ed. 2000 (Text Revision)). 5 Dr. 1 In the questionnaire, Dr. Hoffman made check marks denoting, 2 inter alia, substance dependence, difficulty thinking or 3 concentrating, and memory impairment, and elsewhere noted that 4 Plaintiff’s substance abuse contributes to her limitations (A.R. 289, 5 293). 6 which had not been formally tested and was “estimated” (A.R. 288, 7 291), is “chronic” and likely would impair Plaintiff’s ability to work 8 “irregardless” of substance abuse (A.R. 293; see also A.R. 288 9 (Plaintiff’s intellectual capacity reportedly contributes to Dr. Hoffman opined that Plaintiff’s low intellectual capacity, 10 “disability/poor adaptive functioning”)). Dr. Hoffman indicated that 11 Plaintiff would be “unable to meet competitive standards” for 12 remembering work-like procedures, and for understanding, remembering, 13 and carrying out detailed instructions or the stress of semiskilled or 14 skilled work (A.R. 290-91). 15 would have “serious limitations” (but not preclusion) in her ability 16 to understand, remember, and carry out short and simple instructions, 17 maintain attention, maintain regular attendance, work with others 18 without being unduly distracted, make simple work-related decisions, 19 complete a normal work day or work week without interruptions, perform 20 at a consistent pace, get along with coworkers, respond appropriately 21 to changes in a routine work setting, deal with normal work stress, 22 and set realistic goals or make plans independently of others (A.R. 23 290-91). Dr. Hoffman indicated that Plaintiff Dr. Hoffman explained: 24 25 Based on several meetings, [Plaintiff’s] intellectual 26 capacity seems fairly low; it seems unlikely that 27 [Plaintiff] would be able to follow detailed (and sometimes 28 even relatively simple) commands/instructions/procedures; 6 1 her IQ has not been formally tested and observations are 2 only gross estimations. . . . 3 4 Low intellectual capacity (possibly from birth; possibly due 5 to stroke/brain damage) affect her ability to concentrate 6 and make and follow through with plans, her thought is 7 observed to be concrete and simple; it seems unlikely that 8 she would be able to problem solve or follow through with 9 work related instructions at the level required to function 10 in the work place; symptoms/poor adaptive functioning are 11 likely impaired from exacerbation of mood episodes. 12 13 (A.R. 291). 14 15 Dr. Hoffman circled “marked” functional limitation in Plaintiff’s 16 ability to maintain concentration, persistence, or pace, and circled 17 that Plaintiff would have one to two episodes of decompensation of at 18 least a two week duration per year (A.R. 292). 19 that Plaintiff would miss four or more days of work per month (A.R. 20 293). 21 Hoffman checked “no,” but added, “cannot say for sure” (A.R. 293).4 Dr. Hoffman opined Where the questionnaire asked if Plaintiff is a malingerer, Dr. 22 23 24 25 26 27 4 Dr. Hoffman provided a “Mental Residual Functional Capacity Questionnaire” dated September 3, 2013, which contains findings similar to those contained in the earlier questionnaire (A.R. 360-64). Dr. Hoffman again estimated borderline intellectual functioning with no formal testing, and assigned a GAF of 43 (A.R. 360 (noting that Plaintiff “demonstrates a below average to low intellectual capacity”)). He reported “marginal” response to treatment (A.R. 360). 28 (continued...) 7 1 Dr. Hoffman’s treatment notes suggest that Plaintiff’s condition 2 may have been improving somewhat with treatment and medication. 3 Plaintiff first saw Dr. Hoffman in July 2011 – during a time when she 4 admittedly was using cocaine and alcohol – Dr. Hoffman stated, inter 5 alia, that: (1) Plaintiff felt her medications stabilize her mood, 6 keep her calm, and help her sleep, but she had “poor adherence” to 7 treatment (i.e., she missed appointments and had not taken her 8 medications for the past month); (2) Plaintiff was “vague/ 9 contradictory” concerning her alcohol and cocaine use, stating that 10 she does not drink when she takes her medication but has difficulty 11 recalling periods of sobriety; (3) Plaintiff planned to “obtain 12 sobriety” “on [her] own”; and (4) Plaintiff nonetheless reported 13 “doing real good” with no recent depressive symptoms, and a “generally 14 When 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 (...continued) Dr. Hoffman checked the same boxes as he did in the earlier questionnaire. Compare A.R. 289-91 with A.R. 361-63. Where asked to explain Plaintiff’s limitations relating to unskilled work and to include medical/clinical findings to support the assessment, Dr. Hoffman answered, “Patient reports problems controlling her mood/irritability. She has difficulty dealing with people; she has cognitive deficits and problems with memory and concentration” (A.R. 362). Dr. Hoffman cited no tests to support the alleged cognitive deficits and problems with memory and concentration (A.R. 362). Where asked the same questions for semiskilled and skilled work, Dr. Hoffman answered similarly to what he wrote in the earlier questionnaire, referring to Plaintiff’s allegedly low intellectual capacity and memory, concentration and executive functioning problems. See A.R. 363; compare A.R. 291 (answer quoted above). Dr. Hoffman again opined that Plaintiff would miss more than four days of work per month (A.R. 364). Dr. Hoffman indicated without qualification that Plaintiff was not a malingerer (A.R. 364; compare A.R. 293 (qualifying answer)). Dr. Hoffman opined that Plaintiff would “remain low functioning even with sobriety” and explained that Plaintiff reported over one year of sobriety yet her deficits and poor functioning persist (A.R. 364). 8 1 stable” mood (A.R. 331). Reportedly, Plaintiff’s speech was at a 2 normal rate and volume, her mood was “good,” her affect full/ 3 euthymic/stable/well-related, her thought processes were linear/ 4 logical/concrete, and her insight and judgment were “fair” (A.R. 331). 5 Dr. Hoffman did note to “r/o” (rule out) borderline intellectual 6 functioning; Plaintiff reported attending special education (A.R. 7 331).5 8 331). Dr. Hoffman continued Plaintiff’s Seroquel and Zoloft (A.R. 9 10 In September 2011, Plaintiff reported no recent mood problems and 11 said her medications were helping her (A.R. 330). Her mood apparently 12 was unchanged from July (A.R. 330). 13 record, Plaintiff was calm, interactive, euthymic, mostly logical but 14 fairly concrete, and had a “fair” level of insight (A.R. 330). 15 Plaintiff reportedly had not used cocaine in “months” and drank every 16 two months (A.R. 330; but see A.R. 328 (Plaintiff admitting that she 17 used cocaine until December 24, 2011)). 18 interested in drug or alcohol treatment, saying that she was “cutting 19 it out and can do this on [her] own” (A.R. 330). 20 continued Plaintiff’s medications (A.R. 330). According to this treatment Plaintiff evidently was not Dr. Hoffman 21 22 In December 2011, Plaintiff admitted that she was still using 23 cocaine, which Dr. Hoffman stated “may be [the] cause of mood problems 24 or [at] least contribute,” but Plaintiff’s mood and behavior appeared 25 stable (A.R. 329). Again, she reportedly was calm, interactive, 26 27 28 5 In every available treatment note except the last one, Dr. Hoffman indicated a need to rule out borderline intellectual functioning. See A.R. 321-31, 396-97. 9 1 pleasant, with good eye contact, normal rate and volume of speech, 2 “alright” mood, full/euthymic affect, and linear thought processes 3 (A.R. 329). Dr. Hoffman continued Plaintiff’s medications (A.R. 329). 4 5 In early March 2012, Plaintiff reportedly had been sober for the 6 past three months (since December 24, 2011) – her longest period of 7 sobriety since her teens (A.R. 328). 8 Anonymous occasionally (A.R. 328). 9 Plaintiff’s mood and behavior appeared stable (A.R. 328). She was attending Alcoholics Dr. Hoffman stated that She 10 reportedly was calm, pleasant, interactive and euthymic, with stable 11 affect and linear thought processes (A.R. 328). 12 Trazodone to Plaintiff’s medications (A.R. 328). Dr. Hoffman added 13 14 Plaintiff returned later in March 2012, complaining that her 15 medications were not working and that she was depressed (A.R. 327). 16 She was “most bothered” by poor sleep (A.R. 327). 17 calm and interactive, “depressed,” with a calm and stable affect and 18 with linear thought processes (A.R. 327). 19 logical/reasonable and she supposedly was committed to maintaining her 20 sobriety (A.R. 327). 21 Zoloft, discontinued Trazodone, and added Benadryl (A.R. 327). She apparently was Her plans appeared Dr. Hoffman increased Plaintiff’s Seroquel and 22 23 In April 2012, Plaintiff reported that she felt less depressed 24 with the medication adjustments, but was still sleeping poorly and was 25 hearing voices (“random comments/commands”) weekly (A.R. 326). 26 Plaintiff apparently was calm and interactive, with “fair” mood, 27 stable and euthymic affect, and linear thought processes (A.R. 326). 28 Reportedly, her plans were logical/reasonable, and she was committed 10 1 to her sobriety (A.R. 326). Dr. Hoffman assessed Plaintiff’s mood as 2 stable and improving, but her poor sleep was only partially helped by 3 medications (A.R. 326). 4 “likely [secondary to] past prolonged/heavy substance abuse” (A.R. 5 326). Plaintiff’s auditory hallucinations were Dr. Hoffman increased Plaintiff’s Seroquel (A.R. 326). 6 7 In July 2012, Plaintiff reported that she had felt more depressed 8 lately with sad mood and poor concentration, and had occasional 9 suicidal ideation and auditory hallucinations (A.R. 326). Plaintiff 10 admitted that she was taking her medication only sporadically (A.R. 11 325). 12 calm, interactive, “depressed,” with stable/euthymic affect, and had 13 linear but concrete thought processes (A.R. 325). 14 observable psychosis (A.R. 325). 15 logical/reasonable and she remained committed to sobriety (A.R. 325). 16 Dr. Hoffman continued Plaintiff’s medications (A.R. 325). 17 annotated the treatment note, stating that on August 3, 2012, he 18 completed and forwarded the “Mental Impairment Questionnaire” to 19 Plaintiff’s case manager per Plaintiff’s request (A.R. 325). She also “claim[ed] sobriety” (A.R. 325). Reportedly, she was There was no Plaintiff’s plans appeared Dr. Hoffman 20 21 In August 2012, Plaintiff reported occasional transient low moods 22 and anxiety, but her medications apparently were improving her 23 symptoms and leaving her “calmer” (A.R. 324). 24 calm, interactive and euthymic, with stable affect and linear thought 25 processes (A.R. 324). 26 alcohol (A.R. 324). 27 (A.R. 324). 28 /// Plaintiff evidently was She claimed that she was using no drugs or Dr. Hoffman continued Plaintiff’s medications 11 1 In October 2012, Plaintiff reported some attenuated auditory 2 hallucinations, which Dr. Hoffman again noted were a “likely 3 persisting effect from years of drug abuse,” but also reported 4 improvement with treatment (A.R. 323). 5 ignore the voices and said the voices were infrequent with medication 6 (A.R. 323). 7 and had no persisting depression (A.R. 323). 8 calm, pleasant, interactive and euthymic, with stable affect and 9 linear thought processes (A.R. 323). Plaintiff said she could Plaintiff was doing “fair,” was unhappy with her housing, Plaintiff evidently was Plaintiff reported that she had 10 not used drugs or alcohol since December (A.R. 323). 11 Dr. Hoffman continued Plaintiff’s medications (A.R. 323). 12 13 In December 2012, Plaintiff reported she was “doing alright,” and 14 felt that her medications were improving her symptoms (A.R. 321). She 15 apparently had not had any recent auditory hallucinations (A.R. 321). 16 Plaintiff evidently was calm, interactive and euthymic, with stable 17 affect and linear thought processes (A.R. 321). 18 that she was sober (A.R. 321). 19 medications (A.R. 321). Plaintiff claimed Dr. Hoffman continued Plaintiff’s 20 21 In March 2013, Plaintiff reported that she had been sober for 22 over a year (A.R. 320). She supposedly was doing well with no recent 23 auditory hallucinations, but she said she still had worries about her 24 finances and housing (A.R. 320). 25 medications improved her mood, irritability, auditory hallucinations, 26 and sleep with no reported side effects (A.R. 320 (noting “marked 27 improvement” with treatment)). 28 interactive and euthymic, with stable affect and linear thought She apparently felt that her Reportedly, Plaintiff was calm, 12 1 processes (A.R. 320). 2 Dr. Hoffman continued Plaintiff’s medications (A.R. 320). 3 4 In May 2013, Plaintiff reported her medications had been stolen 5 and she had been without them for a month (A.R. 397). She said she 6 was sleeping poorly and experiencing occasional auditory 7 hallucinations, which she thought “were pretty much gone before when 8 taking meds” (A.R. 397). 9 (A.R. 397). She claimed to be maintaining her sobriety Plaintiff evidently was calm, interactive and euthymic, 10 with full/stable affect and linear thought processes (A.R. 397). Dr. 11 Hoffman said Plaintiff’s mood and behavior appeared stable with no 12 complaints, even though Plaintiff had not taken her medication, and 13 Dr. Hoffman also said that Plaintiff’s auditory hallucinations were 14 under “good control” with medications (A.R. 397). 15 continued Plaintiff’s medications (A.R. 397). Dr. Hoffman 16 17 In August 2013, Plaintiff reported being more anxious/irritable 18 the past week because she went to Fresno to visit family and ran out 19 of medications (A.R. 396). 20 her medications and still hears occasional comments/commands even with 21 medications, but she feels she can ignore them (A.R. 396). 22 claimed to be maintaining her sobriety (A.R. 396). 23 Plaintiff was calm, interactive and euthymic, with constricted/stable 24 affect, normal speech, and linear thought processes (A.R. 396). 25 mood and behavior appeared stable, she had “significant improvement” 26 in her auditory hallucinations with medications, and her reality 27 testing was intact (A.R. 396). 28 borderline intellectual functioning” (A.R. 396). She said she feels “good” when she takes She Reportedly, Dr. Hoffman indicated “likely 13 Dr. Hoffman Her 1 continued Plaintiff’s medications (A.R. 396). Dr. Hoffman annotated 2 the note, stating that on September 3, 2013, he reviewed, completed 3 and forwarded a mental health questionnaire to Plaintiff’s case 4 manager per Plaintiff’s request (A.R. 396). 5 6 7 II. The ALJ Materially Erred in the ALJ’s Evaluation of the Medical Evidence. 8 9 The ALJ relied on the opinions of the non-examining state agency 10 physician and non-examining state agency psychologist in determining 11 Plaintiff’s mental residual functional capacity (A.R. 29 (citing A.R. 12 80-86 (initial disability determination) and A.R. 87-99 13 (reconsideration disability determination)). 14 state agency physician had no medical records to consider and 15 therefore found no disability as of December 21, 2012 (A.R. 86).6 16 reconsideration, a state agency psychologist reviewed Dr. Hoffman’s 17 records including the Mental Impairment Questionnaire dated August 3, 18 2012, which the psychologist stated was “difficult to read” (A.R. 93 19 (citing, inter alia, A.R. 288-93)). 20 opined that Plaintiff would have sustained concentration and 21 persistence limitations in that she assertedly would have moderate 22 limitations in her abilities to: (1) maintain attention and 23 concentration for extended periods; and (2) complete a normal work day On initial review, the The state agency psychologist 24 25 26 27 28 6 It appears that the Administration had requested Plaintiff’s medical records from an attorney who was not then representing Plaintiff. See A.R. 83-85 (detailing attempts to obtain Plaintiff’s medical records from attorney Norman J. Homen); see also A.R. 101 (Appointment of Representative form for Homen dated April 17, 2012); A.R. 115 (Appointment of Representative form for George Aaron dated June 30, 2012). 14 On 1 or work week without interruption from psychologically based symptoms, 2 and to perform at a consistent pace without an unreasonable number of 3 rest periods (A.R. 97). 4 these limitations “do not preclude [Plaintiff] from performing the 5 basic mental demands of competitive work on a [regular] basis” (A.R. 6 97). Nevertheless, the psychologist concluded that 7 8 9 The ALJ erred by relying on the non-examining state agency psychologist to determine Plaintiff’s mental residual functional 10 capacity. The law generally requires that the opinion of a treating 11 or examining physician receive more weight than the opinion of a non- 12 examining physician. 13 (9th Cir. 1995). 14 itself constitute substantial evidence that justifies the rejection of 15 the opinion of either an examining physician or a treating physician.” 16 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (emphasis in 17 original); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) 18 (“When [a nontreating] physician relies on the same clinical findings 19 as a treating physician, but differs only in his or her conclusions, 20 the conclusions of the [nontreating] physician are not ‘substantial 21 evidence.’”); Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 22 1990) (“The nonexamining physicians’ conclusion, with nothing more, 23 does not constitute substantial evidence, particularly in view of the 24 conflicting observations, opinions, and conclusions of an examining 25 physician”). 26 on Dr. Hoffman’s treatment notes (on which Dr. Hoffman based his 27 opinions) (A.R. 93-94). 28 psychologist relied on the same evidence to reach different opinions See Andrews v. Shalala, 53 F.3d 1035, 1040-41 “The opinion of a nonexamining physician cannot by Here, the non-examining state agency psychologist relied Because the non-examining state agency 15 1 than the opinions reached by Plaintiff’s treating psychiatrist, the 2 non-examining psychologist’s opinions could not furnish substantial 3 evidence to support the ALJ’s decision. See id. 4 5 III. Remand is Appropriate. 6 7 Remand is appropriate because the circumstances of this case 8 suggest that further administrative review could remedy the ALJ’s 9 errors. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also 10 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 11 administrative determination, the proper course is remand for 12 additional agency investigation or explanation, except in rare 13 circumstances); Treichler v. Commissioner, 775 F.3d 1090, 1101 (9th 14 Cir. 2014) (remand for further administrative proceedings is the 15 proper remedy “in all but the rarest cases”); Garrison v. Colvin, 759 16 F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical 17 opinion evidence only where, inter alia, “the record has been fully 18 developed and further administrative proceedings would serve no useful 19 purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. 20 denied, 531 U.S. 1038 (2000) (remand for further proceedings rather 21 than for the immediate payment of benefits is appropriate where there 22 are “sufficient unanswered questions in the record”). 23 significant unanswered questions in the present record. 24 it is not clear whether Dr. Hoffman would find the same functional 25 limitations absent drug or alcohol use. There remain For instance, 26 27 On remand the ALJ may want to reconsider whether to order an 28 examination and evaluation of Plaintiff by a consultative psychiatrist 16 1 or psychologist. See Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2 2001) (where available medical evidence is insufficient to determine 3 the severity of the claimant’s impairment, the ALJ should order a 4 consultative examination by a specialist).7 5 6 CONCLUSION 7 8 9 10 For all of the foregoing reasons, Plaintiff’s and Defendant’s motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 DATED: January 6, 2017. 15 16 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7 The Court has not reached any issue regarding the ALJ’s rejection of Dr. Hoffman’s opinions, except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” See Garrison v. Colvin, 759 F.3d at 1021. 17

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