Michael Thompson v. Carolyn W. Colvin

Filing 22

MEMORANDUM OPINION AND REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL LAWRENCE THOMPSON,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
)
Social Security Administration,)
)
Defendant.
)
)

Case No. EDCV 16-0650-AS
MEMORANDUM OPINION AND
REMAND

18
19
20 that

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED
this

matter

is

remanded

21 consistent with this Opinion.
22 //
23 //
24 //
25 //
26 //
27 //
28 //

for

further

administrative

action

1

PROCEEDINGS

2
3

On

April

11,

2016,

Plaintiff

Michael

Lawrence

Thompson

4 (“Plaintiff”) filed a Complaint seeking review of the denial of his
5 applications for disability insurance benefits and supplemental social
6 security income. (Docket Entry No. 1). On September 19, 2016, Defendant
7 filed an Answer and the Administrative Record (“AR”) (Docket Entry Nos.
8 19-20).

The parties have consented to proceed before the undersigned

9 United States Magistrate Judge.

(Docket Entry Nos. 10, 14).

On

10 December 8, 2016, the parties filed a Joint Stipulation (“Joint Stip.”)
11 setting forth their respective positions regarding Plaintiff’s claims.
12 (Docket Entry No. 21).
13
14

The Court has taken this matter under submission without oral

15 argument.

See C.D. Cal. L.R. 7-15; (Docket Entry No. 7 (Order Re:

16 Procedures In Social Security Appeal)).
17
18

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

19
20

On July 25, 2012, Plaintiff, a former construction worker, applied

21 for disability insurance benefits, alleging a disability beginning on
22 February 15, 2011.

(AR

27,

182-96).

In

addition

to

physical

23 impairments such as lumbar disc herniations and radiculopathy, Plaintiff
24 attributed his disability to depression and bipolar disorder. (AR 23).
25 //
26 //
27 //
28 //
2

1

On May 28, 2014, Administrative Law Judge (“ALJ”) James P. Nguyen

2 examined records, and heard testimony from Plaintiff and vocational
3 expert Alan L. Ey.1

(AR 40-81).

On August 7, 2014, the ALJ denied

4 Plaintiff benefits in a written decision, finding that Plaintiff
5 retained the capacity to perform certain sedentary work.
6 The Appeals Council denied review of the ALJ’s decision.

(AR 21-35).
(AR 1-6).

7
8

Plaintiff provided the following testimony at the May 28, 2014

9 hearing:

Plaintiff was thirty-two years old on February 15, 2011, the

10 alleged onset date of his disability.

(AR 44, 182).

On that date,

11 Plaintiff injured his back on a construction job, sustaining lumbar disc
12 herniations and radiculopathy. (Joint Stip. 3; AR 44, 182). Plaintiff
13 has attended physical therapy and seen personal physicians for pain
14 medication and spinal injections.

(AR

49,

54-55).

Plaintiff’s

15 physicians have offered surgical treatment, but Plaintiff has declined
16 due to the potential complications involved.

(AR 55).

17
18

Plaintiff, a married father of three young children, requires a

19 cane for ambulation and spends most of his time at home, sitting or
20 lying down. (AR 66-67, 70). He cannot stand or walk for more than “two
21 to five minutes” at a time.

(AR 71-72).

Plaintiff tends to not walk

22 more than the distance between his house and car.

(AR 72).

Plaintiff

23 cannot carry more than five pounds and does not carry weight except when
24 //
25 //
26
27
1

The reference to a hearing date of August 11, 2014 appears to be
(AR 42).

28 a typographical error.

3

1 he occasionally carries light groceries. (AR 70). Plaintiff cooks two
2 to three times per week, but does not perform other chores or have other
3 household duties aside from occasionally driving his children around
4 when his wife is unable to do so.

(AR 45, 47, 72).

5
6

Relevant portions of the medical record are summarized as follows:

7 In addition to his spinal impairments, Plaintiff has suffered from
8 depression and bipolar disorder.

(Joint Stip. 4).

On August 2, 2012,

9 Plaintiff presented to psychologist Heidi Gay Joffrion for evaluation of
10 depression, anger and substance dependence (AR 292-97).

Plaintiff’s

11 mental status examination revealed depressed mood, motor retardation,
12 and recently impaired judgment and impulsivity.

(AR 295-96).

Dr.

13 Joffrion diagnosed major depression, cannabis dependence, alcohol
14 intoxication and the need to rule out bipolar disorder, with a Global
15 Assessment of Functioning (“GAF”) of 50, no higher than 55,2 in the
16 preceding twelve months (AR 296).
17
18

At

a

September

13,

2012

follow-up

examination,

Dr.

Joffrion

19 diagnosed depression and cannabis dependence with a GAF of 55,3 and
20 recommended individual counseling, weekly group therapy, a chemical
21 dependency program, and a medical referral for pain management.

(AR

22
23
2

The

GAF

scale

reflects

a

clinician’s assessment of the
See American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders 30 (4th
ed. 1994) (“DSM-IV”).
A GAF between 41 and 50 is characterized by
serious symptoms such as suicidal ideation or any serious impairment in
social, occupational or school functioning. See DSM-IV at 32.

24 individual’s overall level of functioning.
25
26
27
28

3

A GAF between 51 and 60 indicates moderate symptoms or moderate
difficulty in social, occupational or school functioning. See DSM-IV at
34.
4

1 301, 303).

Plaintiff often did not avail himself of these options, as

2 evidenced by Dr. Joffrion’s notation that Plaintiff was “noncompliant
3 much of the time.”

(AR 302).

4
5

On January 5, 2013, Plaintiff presented to the emergency room at

6 Fontana Medical Center with suicidal ideation and depression. (AR 390).
7 Examination showed Plaintiff to be tearful with superficial lacerations
8 to the left forearm. (AR 391-92). Emergency room staff consulted with
9 the psychiatry unit, whose subsequent mental examination revealed
10 impulsivity, reports of delusions, hallucinations and seeing “dark
11 shadows,” and a history of self-harm.

(AR 393, 395).

Plaintiff was

12 discharged that same day with diagnoses of major depression and a GAF of
13 55, and given prescriptions for Effexor, Trazadone and Triptyline. (AR
14 392-93, 395).
15
16

On February 13, 2014, Plaintiff attempted suicide by overdosing on

17 Ibuprofen and Flexeril.

(AR 408).

After he was stabilized, Plaintiff

18 was admitted to the psychiatric department of Redlands Community
19 Hospital for further evaluation.

(AR 408).

Mental status examination

20 revealed a fair and appropriate mood and affect with recall of only two
21 of three items after a brief delay; fair attention span; poor digit
22 span; poor serial sevens; and impaired insight and judgment.

(AR 411-

23 12). Plaintiff was diagnosed with bipolar disorder, most recent episode
24 //
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26 //
27 //
28 //
5

1 mixed; polysubstance abuse in remission; cannabis dependence; status
2 post-overdose; and a GAF of 20.4

(AR 412).

3
4

At a follow-up examination held the next day, Plaintiff’s peer

5 interactions were remarkable for evidence of paranoia and guarded,
6 isolative and withdrawn behavior; panic attacks, agitation, delusions,
7 paranoia, racing thoughts, hopelessness, helplessness, worthlessness and
8 poor medication compliance.

(AR

419).

Plaintiff’s

affect

and

9 expression were depressed, with a fair attention span, and he exhibited
10 impaired judgment, and low motivation and energy.
11 Plaintiff was discharged on February 15, 2014.

(AR

419-20).

(AR 421).

12
13

On March 14, 2014, psychiatrist Mirou Dom (“Dr. Dom”) evaluated

14 Plaintiff.

(AR 427).

Dr. Dom prescribed a treatment plan of Seroquel

15 and lithium for management of mood lability, depression and psychosis;
16 Trazodone

for

acute

insomnia;

and

psychotherapy.

(AR

427).

17
18

At

a

follow-up

examination

held

on

April

11,

2014,

Dr.

Dom

19 increased Plaintiff’s Seroquel dosage and continued him on lithium and
20 Trazodone.

(AR 432).

In a Summary Mental Assessment dated April 11,

21 2014 (the “SMA”), Dr. Dom diagnosed bipolar disorder, most recent
22 episode depressed with psychosis, chronic back pain and a GAF of 55.
23 (AR

429-31).

24 hospitalizations
25 diagnoses.

The
and

SMA

also

Dr.

(AR 429, 431).

Dom’s

noted

Plaintiff’s

clinical

findings

two

psychiatric

supporting

his

Dr. Dom found that Plaintiff would be

26
27
28

4

A GAF of 20 indicates “[s]ome danger of hurting self or others
(e.g. suicide attempts without clear expectation of death) . . . OR
gross impairment in communication.” See DSM-IV at 34.
6

1 moderately-to-markedly limited (i.e., limited during one-third to two2 thirds of a workday) in myriad categories related to his ability to
3 work, including his abilities to carry out detailed instructions,
4 maintain attention and concentration for extended periods, make simple
5 work-related decisions, and complete a workday without interruptions
6 from psychological symptoms.

(Joint Stip. 8; AR 430).

Dr. Dom added

7 that Plaintiff would likely miss work more than three times per month
8 and that the assessed limitations would apply starting in 2011, when he
9 was diagnosed with bipolar disorder.

(AR 431).

10
11

The ALJ’s Decision

12
13

The ALJ applied the five-step process in evaluating Plaintiff's

14 case.

(AR 23-35).

At step one, the ALJ determined that Plaintiff had

15 not engaged in substantial gainful activity after the alleged onset
16 date.

(AR 23).

At step two, the ALJ found that Plaintiff's severe

17 impairments included multiple disc protrusions and spinal stenosis in
18 the lumbar spine, lumbar radiculopathy, hyperlipidemia, headaches,
19 obesity, bipolar disorder and major depressive disorder.

(AR 23).

At

20 step three, the ALJ found that Plaintiff's impairments did not meet or
21 equal a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR
22 23-24).
23 //
24 //
25 //
26 //
27 //
28 //
7

1

Before proceeding to step four, the ALJ found that Plaintiff had

2 the residual functional capacity ("RFC")5 to perform sedentary work with
3 the following further limitations:
4
5

[C]an occasionally climb ramps and stairs, but
never climb ladders, ropes, and scaffolds . . . can
occasionally balance, stoop, kneel, crouch, and
crawl . . . should avoid working around unprotected
heights . . . requires the use of a cane for
ambulation if moving away from the workstation . .
. can understand, remember, and carry out simple
job instructions . . . can maintain attention and
concentration to perform simple, routine, and
repetitive tasks . . . can have frequent
interaction with coworkers, supervisors, and the
general public . . . can work in an environment
with occasional changes to the work setting and
occasional work-related decision-making.

6
7
8
9
10
11
12
13 (AR 26).
14
15

In making the RFC finding, the ALJ rejected Dr. Dom’s assessment of

16 Plaintiff.

(AR 32).

The ALJ primarily took issue with Dr. Dom’s SMA,

17 finding that it was conclusory, “checklist-style,” and unsupported by
18 objective evidence.

(AR

32).

Specifically,

the

ALJ

wrote

the

19 following:
20
21

The undersigned has read and considered the [SMA] .
. . This checklist-style form appears to have been
completed as an accommodation to [Plaintiff] and
includes only conclusions regarding functional
limitations without any rationale for those
conclusions.
Dr. Dom indicated that for nearly
every domain [Plaintiff] has either moderate or
moderate-to-marked limitations . .
. [Dr. Dom]
indicated that [Plaintiff] has a diagnosis of
bipolar disorder type I, the most recent episode of

22
23
24
25
26
27
28

5

A Residual Functional Capacity is what a claimant can still do
despite existing exertional and non-exertional limitations.
See 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
8

1

which was depressed with psychosis . . . However,
the findings and written statements of [Dr. Dom] on
the [SMA] are conclusory and do not indicate what
objective evidence underlies [his] opinions, and
appear to be based primarily on [Plaintiff’s]
subjective complaints, which have been determined
to be not fully credible. The undersigned finds
this evidence has no probative value because there
is
no
objective
evidence
to
support
it.
Accordingly, this opinion is given no weight.

2
3
4
5
6
7 (AR 32).
8
9

Based

on

his

findings,

the

ALJ

determined

that

Plaintiff's

10 subjective complaints were "less than fully credible" and inconsistent
11 with objective medical evidence.

(AR 33).

The ALJ also pointed out

12 Plaintiff’s history of non-compliance regarding recommended mental
13 health treatment.

(AR 32).

For example, the treatment records showed

14 that Plaintiff failed to comply with prescribed medications in late 2012
15 and in January 2013 before his first hospitalization.

(AR 31).

The

16 records also demonstrated that Plaintiff failed to show up for
17 outpatient psychiatric treatment on multiple occasions (AR 31, 393).
18 The ALJ noted a lack of psychiatric treatment from February 2013 to
19 Plaintiff’s suicide attempt in February 2014, which occurred after
20 Plaintiff had failed to take his prescribed medications for the prior
21 three months (AR 31).
22 “[Plaintiff]

has

23 recommendations

of

Based on these findings, the ALJ concluded that

repeatedly
his

declined

doctors,

which

to

pursue

the

demonstrates

treatment
a

possible

24 unwillingness to do what is necessary to improve his condition, or it
25 may also be an indication that his symptoms are not as severe as he
26 purports.”

(AR 31-32).

27 //
28
9

1

The

ALJ

also

referenced

inconsistencies

between

Plaintiff’s

2 testimony and his actions. For example, the ALJ noted that Plaintiff’s
3 refusal to attend recommended individual and group therapy sessions,
4 alleging a lack of transportation, was inconsistent with his testimony
5 that he drove to pick up his prescriptions, take his children to school
6 and visit other family members.

(AR 31).

7
8

The

ALJ

cited

other

9 allegations and treatment.

inconsistencies
The

ALJ

found

surrounding
that

Plaintiff’s

“[Plaintiff]

has

10 described daily activities that are not limited to the extent one would
11 expect, given the complaints of disabling symptoms and limitations.”
12 (AR 28).

The ALJ gave the following specific examples:

13
14

Despite his impairments, [Plaintiff] has engaged in
a somewhat normal level of daily activity.
For
example, [Plaintiff] testified that he is able to
cook simple meals, care for his three children at
least part of the time, and independently do some
grocery shopping and fill his prescriptions.
[Plaintiff] is able to drive his children to school
when needed.
Some of the physical and mental
abilities and societal interactions required in
order to perform these activities are the same as
those necessary for obtaining and maintaining
employment. The [ALJ] finds [Plaintiff’s] ability
to participate in such activities diminishes the
credibility of [his] allegations of functional
limitations.

15
16
17
18
19
20
21
22 (AR 28).
23
24
25

The

ALJ

noted

the

following

additional

inconsistencies

Plaintiff’s testimony:

26
27
28

[Plaintiff]
testified
at
length
about
his
difficulties in handling money appropriately, yet
when asked whether he could manage his benefit
should he be awarded them [he] was confident that
10

in

1

he could so do. At times, [Plaintiff’s] responses
while testifying were evasive or vague and left the
impression that [he] may have been less than
entirely candid, particularly when [he] was
testifying as to his share of responsibility for
childcare given his wife’s work schedule, which
would require her to sleep during the day for a
portion of every week and leave [him] alone with
the children while she was at work.

2
3
4
5
6 (AR 28).
7

The ALJ also found that Plaintiff’s consistent work history before

8
9
10

the alleged onset date of February 15, 2011, was incompatible with a
serious mental illness.

(AR 31).

11
At steps four and five, the ALJ determined that Plaintiff was

12
13
14
15
16
17
18

unable to perform past relevant work but that he could seek work as a
Document Preparer, Order Clerk (Food and Beverage) or Final Assembler,
which were all jobs existing in significant numbers in the national
economy.

(AR 33-34).

Accordingly, the ALJ determined that Plaintiff

was not disabled within the meaning of the Social Security Act.

(AR 34-

35).

19
STANDARD OF REVIEW

20
21
22
23
24
25
26
27
28

“An ALJ's disability determination should be upheld unless it
contains legal error or is not supported by substantial evidence.”
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

“‘Substantial

evidence’

less

means

preponderance.”

more

than

a

mere

scintilla,

but

than

a

Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028,

1035 (9th Cir. 2007)).

Thus, the court may not substitute its judgment

for that of the ALJ “[i]f the evidence can support either affirming or
11

1 reversing the ALJ’s conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d
2 880, 882 (9th Cir. 2006). However, the court “must consider the entire
3 record as a whole and may not affirm simply by isolating a ‘specific
4 quantum of supporting evidence.’” Id. (quoting Hammock v. Bowen, 879
5 F.2d 498, 501 (9th Cir. 1989)).
6
7

PLAINTIFF’S CONTENTIONS

8
9

Plaintiff claims that the ALJ erred by failing to provide clear and

10 convincing reasons for (1) rejecting Dr. Dom’s assessment (Joint Stip.
11 6-13); and (2) finding Plaintiff’s testimony and subjective complaints
12 not credible.

(Joint Stip. 15-17).

13
14

DISCUSSION

15
16

After consideration of the record as a whole, the Court finds that

17 the ALJ did not materially err in finding Plaintiff’s testimony
18 regarding his functional limitations not credible. However, Plaintiff’s
19 first claim warrants remand for further consideration, as the Court
20 finds that the ALJ erred in rejecting the assessments of Plaintiff’s
21 treating psychiatrist, Dr. Dom.
22
23 A.

The ALJ Properly Discounted Plaintiff’s Credibility

24
25

An ALJ’s assessment of a claimant’s credibility is entitled to

26 “great weight.”

Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.

27 1990) (citation omitted). “To determine whether a claimant's testimony
28 regarding subjective symptoms is credible, an ALJ must engage in a
12

1 two-step analysis.

First, the ALJ must determine whether the claimant

2 has presented objective medical evidence of an underlying impairment
3 ‘which could reasonably be expected to produce the pain or other
4 symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th
5 Cir. 2007).

“Second, if the claimant meets this first test, and there

6 is no evidence of malingering, ‘the ALJ can reject the claimant's
7 testimony about the severity of her symptoms only by offering specific,
8 clear and convincing reasons for doing so.’”
9 Chater, 80 F.3d 1273, 1282 (9th Cir.1996)).

Id.

(citing Smolen v.

Because it is undisputed

10 that Plaintiff suffers from mental health issues which could reasonably
11 be expected to produce the symptoms alleged and there is no evidence of
12 malingering, the ALJ must have set forth specific, clear and convincing
13 reasons for rejecting Plaintiff’s testimony.
14
15

An ALJ may consider a range of factors in assessing credibility,

16 including “(1) ordinary techniques of credibility evaluation, such as
17 the claimant's reputation for lying, prior inconsistent statements
18 concerning the symptoms, and other testimony by the claimant that
19 appears less than candid; (2) unexplained or inadequately explained
20 failure to seek treatment or to follow a prescribed course of treatment;
21 and (3) the claimant's daily activities.”

Smolen v. Chater, 80 F.3d

22 1273, 1284 (9th Cir. 1996).
23
24

Plaintiff contends that the ALJ set forth only the following two

25 rationales for discounting his credibility: one, that a consistent work
26 schedule prior to the alleged onset date was incompatible with a serious
27 mental illness; and two, non-compliance with recommended treatment.
28 (Joint Stip. 15-16).

The Court disagrees.
13

In addition to these two

1 grounds,

the

ALJ

pointed

to

inconsistencies

within

Plaintiff’s

2 testimony, as well as inconsistencies between Plaintiff’s testimony and
3 his conduct and daily activities to support his adverse credibility
4 findings.

(AR 28-31).

5
6

As set forth below, the Court finds that under the factors listed

7 in Smolen, the ALJ did not err in finding Plaintiff’s testimony
8 regarding his complaints and limitations not credible.
9
10

1.

Inconsistencies In Plaintiff’s Testimony

11
12

The ALJ noted several inconsistencies within Plaintiff’s testimony:

13 Plaintiff had difficulties in managing money (AR 16, 18-20), but
14 believed he could effectively manage any benefits received in this
15 matter.

(AR 28, 33).

Plaintiff claimed to have minimal childcare

16 duties, but his wife had a nocturnal work that required her to sleep
17 during the day, leaving Plaintiff alone with their three children while
18 she was at work. (AR 28). Additionally, Plaintiff alleged he could not
19 attend therapy because of a lack of transportation, but drove to pick up
20 prescriptions, take his children to school, and visit other family
21 members.

(AR

31).

Accordingly,

the

ALJ

properly

22 Plaintiff’s testimony based on its internal inconsistency.

discredited
See Thomas

23 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (“The ALJ may consider
24 . . . when weighing the [plaintiff’s] credibility . . . inconsistencies
25 either in [his] testimony or between [his] testimony and [his]
26 conduct.”)
27 //
28 //
14

1

2.

Failure To Follow Prescribed Courses Of Treatment

2
3

An unexplained or inadequately explained failure to follow a

4 prescribed course of treatment is a basis for discounting a claimant’s
5 credibility.

Smolen, 80 F.3d at 1284; see also Molina v. Astrue, 674

6 F.3d 1104, 1112 (9th Cir. 2012) (“We have long held that, in assessing
7 a claimant’s credibility, the ALJ may properly rely on ‘unexplained or
8 inadequately explained failure to seek treatment or to follow a
9 prescribed course of treatment.’”) (quoting Tommasetti v. Astrue, 533
10 F.3d 1035, 1039 (9th Cir. 2008).

Stated differently, a plaintiff’s

11 failure to assert a reason for not following a prescribed course of
12 treatment, “or a finding by the ALJ that the proferred reason is not
13 believable, can cast doubt on the sincerity of the [plaintiff’s
14 testimony].”

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

15
16

Here, it is undisputed that Plaintiff failed to follow numerous

17 prescribed courses of treatment (Joint Stip. 16).

However, Plaintiff

18 did not provide any excuses for such failure other than forgetfulness,
19 feeling that he did not need to follow them, or an inability to pursue
20 them due to lack of transportation as noted above (AR 69, 427).6

The

21 Court finds that the ALJ properly relied on Plaintiff’s failure to
22 follow

prescribed

courses

of

treatment

to

discount

Plaintiff’s

23 credibility.
24
25
6

Plaintiff’s contention that his failure to follow prescribed
is indicative of his disability is inappropriate for
consideration at this juncture, as this contention was not before the
ALJ.
See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999)
(plaintiffs must raise issues at administrative hearing to preserve them
on appeal).

26 treatment
27
28

15

1

3.

Activities of Daily Living

2
3

An ALJ may properly rely on inconsistencies between a claimant’s

4 testimony and her conduct and daily activities. See Burch v. Barnhart,
5 400 F.3d 676, 680-81 (9th Cir. 2005) (daily activities such as caring
6 for personal needs, cooking, cleaning and shopping can constitute “clear
7 and convincing reasons” for discounting a claimant’s testimony). Here,
8 the ALJ cited Plaintiff’s testimony that despite his impairments, he was
9 able to cook, care for his three children at least part of the time, and
10 independently do some grocery shopping and fill his prescription.
11 28).

(AR

The ALJ also noted that Plaintiff drove his children to school

12 when needed. (AR 28). Thus, the ALJ’s finding that Plaintiff’s ability
13 to participate in such activities was inconsistent with his allegations
14 of disability was a clear and convincing reason to discount his
15 credibility.
16
17

4.

Plaintiff’s Pre-Onset Work History

18
19

An ALJ may rely on poor work history prior to the alleged onset

20 date to discount a claimant’s credibility. See Thomas v. Barnhart, 278
21 F.3d 947, 959 (9th Cir. 2002).
22 principle to the present case.

The ALJ attempted to apply this
However, there is no evidence that

23 Plaintiff had a poor work history before the onset date.
24 opposite appears to be true.

In fact, the

The ALJ found that Plaintiff had a

25 consistent work history before the January 2011 onset date and that this
26 was “incompatible” with a serious mental illness.

(AR 31).

Unable to

27 locate any precedent for the ALJ’s particular reasoning, the Court finds
28 that the ALJ erred in relying on Plaintiff’s positive work history prior
16

1 to the onset date to discount his credibility.

However, this error is

2 harmless, as the ALJ provided other specific, clear and convincing
3 reasons in finding Plaintiff’s testimony not credible as discussed
4 above.
5 (9th

See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055
Cir.

2006)

(finding

error

to

be

harmless

when

it

was

6 inconsequential to the ultimate nondisability determination).
7
8

The

legally

valid

reasons

given

by

the

ALJ

for

discounting

9 Plaintiff’s credibility sufficiently allow the Court to conclude that
10 the ALJ’s credibility finding was based on permissible grounds.

The

11 Court therefore defers to the ALJ’s credibility determination.

See

12 Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will
13 defer to ALJ’s credibility determination when the proper process is used
14 and proper reasons for the decision are provided); accord Flaten v.
15 Sec’y of Health and Human Serv., 44 F.3d 1453, 1464 (9th Cir. 1995).
16 Where the ALJ has made specific findings justifying a decision to
17 disbelieve a plaintiff’s symptom allegations and those findings are
18 supported by substantial evidence in the record, “[the court] may not
19 engage in second guessing.”

Thomas v. Barnhart, 278 F.3d 947, 958-59

20 (9th Cir. 2002).
21
22 B.

The

23

Rejecting The Mental Function Assessments Of Plaintiff’s Treating

24

Psychiatrist

ALJ

Failed

To

Provide

Clear

And

Convincing

Reasons

For

25
26

An

ALJ

may

reject

the

uncontradicted

opinion

of

a

treating

27 physician only for “clear and convincing reasons that are supported by
28 substantial evidence.”

Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th
17

1 Cir. 2014) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2 2005)). Here, Dr. Dom’s assessment is uncontroverted, as he is the only
3 physician of record to have both examined Plaintiff and evaluated the
4 functional impact of his bipolar disorder and depression.

Thus, the

5 “clear and convincing” standard is applicable.
6
7

An ALJ may reject “check-off” physician’s reports that do not

8 contain any explanation of the bases of the physician’s conclusions or
9 are not supported by objective evidence. Molina, 674 F.3d at 1111 (9th
10 Cir. 2012) (citing Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996);
11 see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 n.3
12 (9th Cir. 2004).

However, such reports, when they are accompanied by

13 comments explaining the reasons for the physician’s responses or
14 supported by objective evidence, should not be rejected.

Smolen, 80

15 F.3d at 1288 (9th Cir. 1996) (“Moreover, the questions called not only
16 for yes-or-no answers, but also for comments from the physicians in
17 support of their answers. Dr. Smolen's responses were accompanied by
18 comments explaining the reasons for each of his responses. Those
19 comments . . .

appear to be based on Dr. Smolen's knowledge of [the

20 plaintiff’s] medical history and his experience in his specialty.”).
21
22

The ALJ found the SMA to be a conclusory, checklist-style form that

23 did not reference supporting objective evidence. (AR 32). However, the
24 SMA references Plaintiff’s years- long history of treatment for bipolar
25 disorder and depression, specifically refers to Plaintiff’s prior
26 bipolar diagnosis and psychiatric hospitalizations in 2012 and 2013, and
27 contains handwritten notations detailing Dr. Dom’s clinical findings,
28 signs and symptoms supporting his diagnoses based upon mental status
18

1 examinations and psychological testing. (AR 429-431). Contrary to the
2 ALJ’s findings, Dr. Dom’s assessment referenced Plaintiff’s medical
3 history, test results and objective observations.

Dr.

Dom,

who

4 evaluated Plaintiff twice before issuing the SMA, listed the following
5 observations:

dysphoric,

irritable

and

manic

mood,

difficulty

6 concentrating and focusing, and exhibiting signs of paranoia. (AR 431).
7
8

Accordingly, the ALJ failed to provide clear and convincing reasons

9 supported by substantial evidence for rejecting Dr. Dom’s uncontradicted
10 assessment of Plaintiff.
11
12 C.

Remand Is Warranted

13
14

The decision whether to remand or order an immediate award of

15 benefits is within the district court's discretion.
16 211 F.3d 1172, 1175-78 (9th Cir. 2000).

Harman v. Apfel,

Where no useful purpose would

17 be served by further administrative proceedings, or where the record is
18 fully developed, it is appropriate to direct an immediate award of
19 benefits. Id. at 1179 ("[T]he decision of whether to remand for further
20 proceedings turns upon the likely utility of such proceedings.").
21 However, where the circumstances of the case suggest that further
22 administrative review could remedy the Commissioner's errors, remand is
23 appropriate.

McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);

24 Harman, 211 F.3d at 1179-81.
25 //
26 //
27 //
28
19

1

Here, the Court has determined that the ALJ erred by not providing

2 legally sufficient reasons for rejecting the uncontroverted opinion of
3 Dr. Dom, Plaintiff’s treating psychiatrist. On remand, the ALJ must set
4 forth specific, and clear and convincing reasons for rejecting Dr. Dom’s
5 assessment (e.g., citing to a legally sufficient opinion from a
6 consultative or non-treating psychiatrist). Because outstanding issues
7 must be resolved before a determination of disability can be made, and
8 it is not clear from the record that the ALJ would be required to find
9 Plaintiff disabled if the discredited evidence were credited as true,
10 the Court finds this to be an instance where further administrative
11 proceedings would serve a useful purpose.

Remand

is

therefore

12 appropriate.
13
14

ORDER

15
16

For the foregoing reasons, the decision of the Administrative Law

17 Judge is VACATED, and the matter is REMANDED, without benefits, for
18 further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).
19
20

LET JUDGMENT BE ENTERED ACCORDINGLY

21
22
23

DATED: January 18, 2017.

24
25
26

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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20