Sher Ann Wilson v. Carolyn W. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver (sbu)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

SHER ANN WILSON,

12

Plaintiff,

13
14
15

Case No. CV 16-08975-RAO

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.

16
17
18

I.

19
20
21
22
23
24
25
26
27
28

INTRODUCTION
Plaintiff Sherl Ann Wilson (“Plaintiff”) challenges the Commissioner’s

denial of her application for a period of disability and supplemental security income
(“SSI”).

For the reasons stated below, the decision of the Commissioner is

REVERSED and REMANDED.
II.

PROCEEDINGS BELOW
On December 31, 2012, Plaintiff filed an application for SSI, alleging

disability beginning November 30, 2010. (Administrative Record (“AR”) 147.)
Her application was denied initially on June 12, 2013, and upon reconsideration on
November 6, 2013. (AR 86, 101.) On May 15, 2015, Plaintiff filed a written

1

request for hearing, and a hearing was held on February 12, 2015. (AR 7, 31.)

2

Represented by counsel, Plaintiff appeared and testified, along with a medical

3

expert and an impartial vocational expert. (AR 33-49.) On March 31, 2015, the

4

Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a

5

disability, pursuant to the Social Security Act,1 since December 31, 2012. (AR 16-

6

26.) The ALJ’s decision became the Commissioner’s final decision when the

7

Appeals Council denied Plaintiff’s request for review. (AR 1-4.) Plaintiff filed this

8

action on December 5, 2016. (Dkt. No. 1.)

9

The ALJ followed a five-step sequential evaluation process to assess whether

10

Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821,

11

828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged

12

in substantial gainful activity since December 31, 2012, the application date. (AR

13

18.)

14

impairments: attention deficit hyperactivity disorder, schizophrenia, major

15

depressive disorder, anxiety, and substance abuse. (Id.) At step three, the ALJ

16

found that Plaintiff “does not have an impairment or combination of impairments

17

that meets or medically equals the severity of one of the listed impairments in 20

18

CFR Part 404, Subpart P, Appendix 1.” (AR 20.)
Before proceeding to step four, the ALJ found that Plaintiff has the residual

19
20

At step two, the ALJ found that Plaintiff has the following severe

functional capacity (“RFC”) to:

21

[P]erform a full range of work at all exertion levels but with the
following nonexertional limitations: can understand and remember
tasks; can sustain concentration and persistence; can socially interact
with co-workers and supervisors; and can adapt to workplace changes
frequently enough to perform unskilled, low stress jobs that require

22
23
24
25
26
27
28

1

Persons are “disabled” for purposes of receiving Social Security benefits if they
are unable to engage in any substantial gainful activity owing to a physical or
mental impairment expected to result in death, or which has lasted or is expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
2

simple instructions, but should avoid jobs requiring interaction with
the general public.

1
2

(AR 21.)

3

At step four, the ALJ found that Plaintiff has no past relevant work. (AR

4

25.) At step five, “[c]onsidering the claimant’s age, education, work experience,

5

and residual functional capacity,” the ALJ found that “there are jobs that exist in

6

significant numbers in the national economy that the claimant can perform.” (Id.)

7

Accordingly, the ALJ determined that Plaintiff has not been under a disability since

8

the application date. (AR 26.)

9

III.

STANDARD OF REVIEW

10

Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

11

decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are

12

supported by substantial evidence, and if the proper legal standards were applied.

13

Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’

14

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

15

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

16

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc.

17

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial

18

evidence requirement “by setting out a detailed and thorough summary of the facts

19

and conflicting clinical evidence, stating his interpretation thereof, and making

20

findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).

21

“[T]he Commissioner’s decision cannot be affirmed simply by isolating a

22

specific quantum of supporting evidence. Rather, a court must consider the record

23

as a whole, weighing both evidence that supports and evidence that detracts from

24

the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

25

2001) (citations and internal quotation marks omitted).

26

susceptible to more than one rational interpretation,’ the ALJ’s decision should be

27

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

28
3

“‘Where evidence is

1

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at

2

882 (“If the evidence can support either affirming or reversing the ALJ’s

3

conclusion, we may not substitute our judgment for that of the ALJ.”). The Court

4

may review only “the reasons provided by the ALJ in the disability determination

5

and may not affirm the ALJ on a ground upon which he did not rely.” Orn v.

6

Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d

7

871, 874 (9th Cir. 2003)).

8

IV.

DISCUSSION

9

Plaintiff raises two issues for review: (1) whether the ALJ provided specific

10

and legitimate reasons to reject the opinions of Plaintiff’s treating physicians; and

11

(2) whether the ALJ provided clear and convincing reasons to reject Plaintiff’s

12

subjective symptoms. (Joint Stipulation (“JS”) 4, Dkt. No. 20.) Plaintiff contends

13

that the ALJ improperly rejected medical opinion evidence and erred in discounting

14

the credibility of Plaintiff’s testimony. (See JS 4-10, 18-20, 20-25, 30-32.) The

15

Commissioner contends that the ALJ correctly rejected opinion evidence that was

16

unsupported by the record and properly considered Plaintiff’s subjective

17

complaints. (JS 11-17, 25-30.) For the reasons below, the Court agrees with

18

Plaintiff regarding the opinion evidence and remands on that ground.

19

A.

20

Plaintiff contends that the ALJ did not provide specific and legitimate

21

reasons for rejecting the opinions of treating physicians Dr. Gus Dixon, M.D. and

22

Dr. James Jen Kin, M.D. (See JS 4-5, 19.) The Commissioner contends that the

23

ALJ properly weighed the opinion evidence. (See JS 11, 17.)

24

The ALJ Erred in Evaluating the Medical Opinion Evidence

1.

Applicable Legal Standard

25

Courts give varying degrees of deference to medical opinions based on the

26

provider: (1) treating physicians who examine and treat; (2) examining physicians

27

who examine, but do not treat; and (3) non-examining physicians who do not

28

examine or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th
4

1

Cir. 2009). Most often, the opinion of a treating physician is given greater weight

2

than the opinion of a non-treating physician, and the opinion of an examining

3

physician is given greater weight than the opinion of a non-examining physician.

4

See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ must provide

5

“clear and convincing” reasons to reject the ultimate conclusions of a treating

6

physician. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). When a treating

7

physician’s opinion is contradicted by another opinion, the ALJ may reject it only

8

by providing specific and legitimate reasons supported by substantial evidence in

9

the record. Orn, 495 F.3d at 633; Lester, 81 F.3d at 830. “An ALJ can satisfy the

10

‘substantial evidence’ requirement by ‘setting out a detailed and thorough summary

11

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

12

findings.’”

13

physician’s opinion can constitute substantial evidence if it is supported by other

14

evidence in the record and is consistent with it. Morgan v. Comm’r of Soc. Sec.

15

Admin., 169 F.3d 595, 600 (9th Cir. 1999) (citation omitted).

Garrison, 759 F.3d at 1012 (citation omitted).

2.

16

A non-examining

Discussion

17

The ALJ gave Dr. Dixon’s opinion “little, if any, weight,” and provided four

18

reasons for rejecting Dr. Dixon’s statements. (AR 24.) The ALJ also gave “little, if

19

any, weight” to Dr. Jen Kin’s opinion “[f]or the same reasons.” (Id.) Instead, the

20

ALJ gave “great weight” to the opinions of a consultative psychiatric examiner and

21

a state agency medical consultant. (AR 23-25.) The psychiatric examiner had

22

found that Plaintiff had only “mild” limitations in some areas where Plaintiff’s

23

treating physicians had assessed more severe limitations. (AR 24, 453-54; see AR

24

486, 686-87.) Because the opinions of the treating physicians are contradicted by

25

another medical opinion, the reasons for rejecting the treating physicians’ opinions

26

must be specific and legitimate, supported by substantial evidence. See Orn, 495

27

F.3d at 633; Lester, 81 F.3d at 830.

28

///
5

a. Dr. Dixon

1
2

First, the ALJ rejected Dr. Dixon’s opinion that Plaintiff “is unable to work”

3

due to her hepatitis C complications, major depression with psychotic features,

4

generalized anxiety disorder with severe exacerbation due to illness, features of

5

obsessive compulsive disorder, pruritis secondary to hepatic dysfunction, and

6

interferon treatment. (AR 24, 477.) Dr. Dixon noted, “Her conditions will not

7

improve enough in the next 2 years, to enable her to work full time, and to earn a

8

living wage.” (AR 477.) The ALJ explained that Dr. Dixon’s statement “expresses

9

an opinion on an issue reserved to the Commissioner.” (AR 24.) An opinion on

10

whether someone is disabled is an opinion on an issue reserved for the

11

Commissioner because it is a dispositive administrative finding.

12

416.927(d)(1) (“We are responsible for making the determination or decision about

13

whether you meet the statutory definition of disability. . . . A statement by a

14

medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we

15

will determine that you are disabled.”).2 Accordingly, the ALJ correctly rejected

16

Dr. Dixon’s statement that Plaintiff was unable to work.

See 20 CFR

17

Next, the ALJ found that the record does not support Dr. Dixon’s opinion

18

that Plaintiff suffers from suicidal ideations and prior attempts. (AR 24.) Dr.

19

Dixon’s August 22, 2013 mental impairment questionnaire indicates that Plaintiff

20

suffers from suicidal ideation and attempts, specifically noting a “recent suicide

21

attempt” due to acute depression brought on by an interferon treatment. (AR 484.)

22

The ALJ noted that the record shows no suicidal ideation, plan, or prior attempts;

23

no homicidal intent; and no hallucinations. (AR 23, 24.) The ALJ misstates the

24

record in part. Although hospital records from August 13 and August 14, 2013

25

2

26
27
28

The ALJ based his rejection of Dr. Dixon’s statement not on this section, but on
20 CFR 416.927(e). (AR 24.) However, that section states that “when an
administrative law judge gives controlling weight to a treating source’s medical
opinion, the administrative law judge is not required to explain in the decision the
weight he or she gave to the prior administrative medical findings in the claim.”
6

1

show no suicidal plan or prior attempts (AR 616, 623, 626), they do indicate that

2

Plaintiff suffers from suicidal ideations (AR 616, 618, 623, 625, 628, 631).

3

Additionally—and as the ALJ noted (AR 23)—Plaintiff reported auditory

4

hallucinations in the form of “hear[ing] voices” and “hearing her own thoughts

5

what to do and what not to do.” (AR 449.) The ALJ erred by rejecting Dr. Dixon’s

6

opinion for being inconsistent with a misstatement of the record. See Holohan v.

7

Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (ALJ cannot selectively rely on

8

some entries in administrative records and ignore others); Gallant v. Heckler, 753

9

F.2d 1450, 1456 (9th Cir. 1984) (error for an ALJ to ignore or misstate the

10

competent evidence in the record in order to justify his conclusion).

11

The ALJ also noted that Plaintiff was discharged on the same day that she

12

was admitted for an emergency psychiatric evaluation. (AR 24.) On the evening of

13

August 13, 2013, Plaintiff was evaluated for her anxiety and was transferred for an

14

emergency psychiatric evaluation. (AR 614, 618, 623.) Plaintiff was discharged

15

the next day. (AR 626.) The ALJ does not explain how this incident is inconsistent

16

with or otherwise discredits Dr. Dixon’s opinion, thereby leaving the Court to

17

unacceptably speculate about why the ALJ disregarded a treating physician’s

18

opinion. See Ros v. Berryhill, No. 2:15-CV-2389 DB, 2017 WL 896287, at *4

19

(E.D. Cal. Mar. 7, 2017) (citing Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.

20

2014)) (“The court may not speculate as to the ALJ’s findings or the basis of the

21

ALJ’s unexplained conclusions.”).

22

Finally, the ALJ noted that Plaintiff’s treatment was not continuous and

23

ongoing. (AR 24.) In his earlier explanation for discounting Plaintiff’s symptom

24

testimony, the ALJ had noted records reflecting treatment in November 2012, April

25

2013, March 2014,3 and May to June 2014. (AR 22; see AR 366, 372, 593-602.)

26

The ALJ observed that “[t]he record reflects significant gaps in the claimant’s

27

3

28

The record does not contain evidence of treatment in March 2014, although
records reveal treatment in March 2013. (AR 369-71, 374.)
7

1

history of treatment.” (AR 22.) However, non-psychiatric treatment records from

2

December 9, 2011 indicate that Plaintiff could not afford to see her psychologist,

3

Dr. Dixon, sooner than every four months. (AR 403.) In March 2013, other

4

treatment records indicated that Plaintiff had lost her insurance in December 2012.

5

(AR 429.)

6

The Ninth Circuit has criticized the practice of discrediting evidence based

7

on a lack of treatment “both because mental illness is notoriously underreported and

8

because it is a questionable practice to chastise one with a mental impairment for

9

the exercise of poor judgment in seeking rehabilitation.” Regennitter v. Comm’r of

10

Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999) (internal quotation

11

marks omitted) (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)).

12

Moreover, “[d]isability benefits may not be denied because of the claimant’s failure

13

to obtain treatment he cannot obtain for lack of funds.” Gamble v. Chater, 68 F.3d

14

319, 321 (9th Cir. 1995).

15

treatment records without considering an explanation for the irregularity. Marquez

16

v. Astrue, No. EDCV 09-1921-E, 2010 WL 1709204, at *2 (C.D. Cal. Apr. 27,

17

2010) (“Given the uncertainty surrounding the extent to which these errors [of

18

relying on irregular treatment without considering the claimant’s explanation] may

19

have affected the ALJ’s decision, including the ALJ’s determinations to reject

20

Plaintiff’s credibility and to discount [a treating physician]’s opinion, the Court is

21

unable to conclude that the errors were harmless.”)

The ALJ erred by relying on Plaintiff’s irregular

22

The Commissioner contends that “the inconsistencies in the medical opinion,

23

the lack of significant clinical findings, and the contrary medical opinions[] were

24

specific and legitimate reasons for the weight attributed to Dr. Dixon’s opinions.”

25

(JS 13.) But those were not reasons that the ALJ provided, and the Court may not

26

consider grounds upon which the ALJ did not rely. See Orn, 495 F.3d at 630; Bray

27

v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009)

28

(“Long-standing principles of administrative law require us to review the ALJ’s
8

1

decision based on the reasoning and factual findings offered by the ALJ—not post

2

hoc rationalizations that attempt to intuit what the adjudicator may have been

3

thinking.”).

4

Although the ALJ correctly rejected Dr. Dixon’s statement that Plaintiff was

5

unable to work, the Court finds that the ALJ’s remaining reasons for discrediting

6

Dr. Dixon’s opinions are not specific and legitimate reasons supported by

7

substantial evidence.
b.

8

Dr. Jen Kin

9

The ALJ also reviewed Dr. Jen Kin’s medical source statement. (AR 24.)

10

The ALJ noted that Dr. Jen Kin indicated moderate limitations in Plaintiff’s ability

11

to understand, remember, and carry out short, simple instructions. (AR 24, 686.)

12

Dr. Jen Kin also indicated marked or extreme limitation in Plaintiff’s ability to

13

understand, remember, and carry out detailed instructions; make judgments on both

14

simple and complex work-related decisions; maintain attendance and punctuality

15

during a workday and workweek; perform at a consistent pace without more than

16

regular breaks in a workday; interact appropriately with the public, supervisors, and

17

coworkers; sustain an ordinary routine without special supervision; and respond

18

appropriately to changes in a routine work setting. (AR 24, 686-87.) The ALJ gave

19

Dr. Jen Kin’s opinion “little, if any, weight” “[f]or the same reasons given above.”

20

(AR 24.)

21

treatment.” (Id.)

He also noted that “[t]here is no evidence of inpatient psychiatric

22

The ALJ’s mere recitation of Dr. Jen Kin’s assessment, without interpreting

23

the evidence or making findings, is insufficient to support the opinion’s rejection.

24

See Reddick, 157 F.3d at 725 (an ALJ’s responsibility to provide specific and

25

legitimate reasons supported by substantial evidence “can be done by setting out a

26

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

27

stating his interpretation thereof, and making findings”); see also Garrison, 759

28

F.3d at 1012-13 (citing Nguyen, 100 F.3d at 1464) (“[A]n ALJ errs when he rejects
9

1

a medical opinion or assigns it little weight while doing nothing more than ignoring

2

it, asserting without explanation that another medical opinion is more persuasive, or

3

criticizing it with boilerplate language that fails to offer a substantive basis for his

4

conclusion.”).

5

discrediting Dr. Dixon’s opinions were not specific and legitimate reasons

6

supported by substantial evidence, “the same reasons given above” must also fail

7

here.

Furthermore, because the Court found that the reasons for

8

Because the reasons provided by the ALJ for rejecting Dr. Dixon’s and Dr.

9

Jen Kin’s opinions are not specific and legitimate, supported by substantial

10

evidence, it is unclear whether the ALJ properly considered their opinions in

11

accordance with the appropriate legal standards. Remand is therefore warranted for

12

the ALJ to properly evaluate the medical opinions and determine Plaintiff’s mental

13

RFC.

14

B.

The Court Declines to Address Plaintiff’s Credibility Argument

15

Having found that remand is warranted, the Court declines to address

16

Plaintiff’s remaining argument that the ALJ erred in discounting the credibility of

17

her testimony. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because

18

we remand the case to the ALJ for the reasons stated, we decline to reach

19

[plaintiff’s] alternative ground for remand.”); see also Augustine ex rel. Ramirez v.

20

Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not

21

address the other claims plaintiff raises, none of which would provide plaintiff with

22

any further relief than granted, and all of which can be addressed on remand.”).

23

C.

Remand For Further Administrative Proceedings

24

Because further administrative review could remedy the ALJ’s errors,

25

remand for further administrative proceedings, rather than an award of benefits, is

26

warranted here. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015)

27

(remanding for an award of benefits is appropriate in rare circumstances). Before

28

ordering remand for an award of benefits, three requirements must be met: (1) the
10

1

Court must conclude that the ALJ failed to provide legally sufficient reasons for

2

rejecting evidence; (2) the Court must conclude that the record has been fully

3

developed and further administrative proceedings would serve no useful purpose;

4

and (3) the Court must conclude that if the improperly discredited evidence were

5

credited as true, the ALJ would be required to find the claimant disabled on

6

remand. Id. (citations omitted). Even if all three requirements are met, the Court

7

retains flexibility to remand for further proceedings “when the record as a whole

8

creates serious doubt as to whether the claimant is, in fact, disabled within the

9

meaning of the Social Security Act.” Id. (citation omitted).

10

Here, remand for further administrative proceedings is appropriate. The

11

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

12

by substantial evidence to reject the opinions of Dr. Dixon and Dr. Jen Kin.

13

On remand, the ALJ shall reassess the opinions of Dr. Dixon and Dr. Jen Kin

14

and provide legally adequate reasons for any portion of an opinion that the ALJ

15

discounts or rejects.

16

subjective allegations in light of Social Security Ruling 16-3p—Evaluation of

17

Symptoms in Disability Claims, 2016 WL 1119029 (S.S.A. Mar. 16, 2016), which

18

would apply on remand. If necessary, the ALJ shall reassess Plaintiff’s RFC, and

19

then proceed through steps four and five to determine what work, if any, Plaintiff is

20

capable of performing.

21

///

22

///

23

///

Further on remand, the ALJ shall reassess Plaintiff’s

24
25
26
27
28
11

1

V.

CONCLUSION

2

IT IS ORDERED that Judgment shall be entered REVERSING the decision

3

of the Commissioner denying benefits, and REMANDING the matter for further

4

proceedings consistent with this Order.

5
6

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
Order and the Judgment on counsel for both parties.

7
8
9

DATED: November 9, 2017
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

10
11
12

NOTICE

13

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

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