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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 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 // 25 // 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 27 28 20

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