Jesus Hernandez Rodriguez v. Carolyn W. Colvin

Filing 28

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John F. Walter. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that: (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; (2) the decision of the Commissioner of the Social Security Administration is reversed in part; and (3) the matter is remanded for further administrative action consistent with the Report and Recommendation. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JESUS HERNANDEZ RODRIGUEZ,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security,
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Defendant.
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___________________________________)

NO. ED CV 16-2337-JFW(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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John F. Walter, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District Court

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for the Central District of California.

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PROCEEDINGS

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Plaintiff filed a complaint on November 10, 2016, seeking review

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of the Commissioner’s denial of disability benefits.

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a “Memorandum in Support of Complaint” on June 19, 2017, which the

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Court has construed as a motion for summary judgment.

Plaintiff filed

Defendant filed

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a motion for summary judgment on August 3, 2017.

The Court has taken

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the motions under submission without oral argument.

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“Order,” filed November 16, 2016.1

See L.R. 7-15;

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BACKGROUND

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This Court previously remanded Plaintiff’s disability claim for

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further administrative proceedings.

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(“A.R.”) 384-93 (Memorandum Opinion and Order of Remand filed on

See Administrative Record

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January 15, 2014, in Hernandez v. Colvin, ED CV 13-741-E).

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a former carpenter, had asserted disability since September 27, 2002,

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based on a work-related injury to his back, neck, and shoulder, and

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also asserted depression allegedly beginning in approximately June of

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2008 (A.R. 74-78, 94, 105).

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2009 to physical symptomatology of disabling severity (A.R. 341-43;

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see also A.R. 352).

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that Plaintiff has severe physical and psychological impairments, but

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the ALJ also found Plaintiff could perform a limited range of light

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work (A.R. 18-27 (adopting vocational expert’s testimony at A.R. 350-

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51 that a person with the residual functional capacity the ALJ found

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to exist could work)).

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not credible (A.R. 20-21).

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6).

Plaintiff,

Plaintiff had testified in October of

An Administrative Law Judge (“ALJ”) had found

The ALJ deemed Plaintiff’s contrary statements
The Appeals Council denied review (A.R. 4-

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In previously remanding this matter, the Court held that the ALJ
had erred by discounting Plaintiff’s credibility without stating

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Order.

Counsel for both parties violated paragraph VI of this
Counsel shall heed the Court’s orders in the future.
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legally sufficient reasons for having done so.

See A.R. 386-88.

The

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Appeals Council then vacated the prior administrative decision and

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remanded the case for further proceedings consistent with this Court’s

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order (A.R. 403).

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On remand, a new ALJ received additional evidence but again found

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Plaintiff not disabled (A.R. 363-83, 401-03).

Plaintiff had suffered

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a second work-related injury in September of 2013 (A.R. 766).

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evaluated Plaintiff’s alleged disability for two time periods, i.e.,

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from the alleged onset date of September 27, 2002, until Plaintiff’s

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later work-related injury on September 2, 2013 (the “First Alleged

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Disability Period”), and from the September 2, 2013 injury until the

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date of the ALJ’s adverse decision (the “Second Alleged Disability

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Period”) (A.R. 366-81).

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ALJ found that Plaintiff suffered from the following severe

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impairments: “degenerative changes to the lumbar spine, bilateral

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neuroforaminal stenosis at L4-5, degenerative changes to the cervical

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spine, depressive disorder, and generalized anxiety disorder” (A.R.

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366).

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Plaintiff suffered from additional severe impairments, i.e.,

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“bilateral shoulder AC joint arthritis, bilateral carpal tunnel

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syndrome, and obesity” (A.R. 366).

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during each of these alleged disability periods, Plaintiff retained

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the residual functional capacity to perform work as an office cleaner,

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packer, and laundry worker (A.R. 367-83 (adopting vocational expert

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testimony at A.R. 786-90)).

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benefits (id.).

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The ALJ

For the First Alleged Disability Period, the

For the Second Alleged Disability Period, the ALJ found that

However, the ALJ found that,

The ALJ therefore denied disability

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner

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of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

See Carmickle v.

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Substantial evidence is “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.”

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Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

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see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

Richardson v.

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

But the

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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DISCUSSION

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The Magistrate Judge recommends that the Court reverse the ALJ’s

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decision in part and remand the matter for further administrative

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proceedings.

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material errors while evaluating the medical evidence.

As discussed below, the ALJ committed potentially

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I.

The ALJ Erred in Connection with Evaluating the Medical Opinions
Concerning Plaintiff’s Mental Limitations.

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Plaintiff argues, inter alia, that, in determining Plaintiff’s

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residual functional capacity, the ALJ failed to consider whether

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Plaintiff’s condition as a whole would interfere with his ability to

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perform work.

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argument, Plaintiff cites various portions of the medical record,

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including medical opinions regarding Plaintiff’s mental limitations.

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Id.; see also Plaintiff’s Motion, p. 17 (referencing the ALJ’s alleged

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failure properly to assess Plaintiff’s “emotion problems of depression

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and anxiety”).

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not challenge the ALJ’s findings regarding his mental limitations” and

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thereby assertedly has waived any such challenge.

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Motion, p. 4 nn. 2-3.

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motion sufficiently has presented the issue of Plaintiff’s alleged

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mental limitations for this Court’s review.

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applicable standard of review, this Court must determine whether the

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Administration’s findings (including findings regarding mental

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limitations) are supported by “substantial evidence.”

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v. Commissioner, 533 F.3d at 1159.

See Plaintiff’s Motion, pp. 3-11.

In support of this

Nevertheless, Defendant claims that Plaintiff “does

See Defendant’s

Although not a model of clarity, Plaintiff’s

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In any event, under the

See Carmickle

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For both the First Alleged Disability Period and the Second

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Alleged Disability Period, the ALJ determined that Plaintiff’s mental

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residual functional capacity was limited only by an inability to

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perform “complex tasks” (A.R. 367-68).

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determination, the ALJ summarized the opinions of treating

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psychologist Dr. Nelson Flores and consultative examiner Dr. Divy

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Kikani.

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significant mental limitations.

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these doctors’ opinions, stating: (1) the doctors’ assessments

See A.R. 373-75.

In reaching this

Both doctors opined Plaintiff has
Id.

The ALJ gave “little weight” to

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assertedly were “vague” and allegedly did not contain any “specific

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functional restrictions”; and (2) “substantial evidence over the

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course of several years” purportedly showed that Plaintiff’s

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“condition was largely controlled with a medication and treatment

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regimen” (A.R. 380).

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legally sufficient reasons for rejecting the doctors’ opinions.

As explained below, these statements are not

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A.

Summary of the Relevant Medical Records

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Plaintiff has received extensive mental health evaluation and

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treatment during the past decade.

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treating chiropractor Dr. J. Carlos Vazquez observed that Plaintiff

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was “exhibiting suggested depression-anxiety regarding his pain” (A.R.

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226).

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treatment (A.R. 227, 268).

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February 9, 2006, and diagnosed Major Depressive Disorder (single

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episode, mild), Generalized Anxiety Disorder, Male Hypoactive Sexual

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Desire Disorder (due to chronic pain), and a Sleep Disorder (due to

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chronic pain, insomnia type) (A.R. 268).

In January of 2006, Plaintiff’s

Dr. Vazquez referred Plaintiff to Dr. Flores for evaluation and
Dr. Flores evaluated Plaintiff on

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Plaintiff then participated

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in individual and group psychotherapy and started treatment with Dr.

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Flores’ staff psychiatrist, Dr. Amal Tanagho (A.R. 268-69).

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Plaintiff had semi-regular visits with Dr. Tanagho from April 7,

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2006, through at least August 15, 2008 (A.R. 235-58).

Dr. Tanagho

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diagnosed Generalized Anxiety Disorder and Major Depressive Disorder,

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and prescribed Lexapro and Trazodone.

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(reflecting diagnoses for the codes listed in treatment notes).

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During his treatment with Dr. Tanagho, Plaintiff often reported

See A.R. 248; see also A.R. 257

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running out of his prescribed medications.

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medications, he reported that his symptoms improved.

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When he was taking his
See A.R. 235-

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Dr. Flores prepared a “Comprehensive Psychological Medical-Legal

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Permanent and Stationary Evaluation” dated September 8, 2006 (A.R.

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260-84).

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appeared “sad and worried,” his posture was tense, and there were no

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evident histrionic demonstrations of pain (A.R. 264).

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reported improvement in his general emotional and psychological

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functioning, indicating that his medications had helped improve his

At his last appointment in August of 2006, Plaintiff had

Plaintiff

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The record contains a “Psychiatric Consultation Report”
by Dr. Tanagho dated February 28, 2006, for “Jesus HernandezRodriguez” which reports a different employer, different work, a
different injury date, a back surgery in 2004 not mentioned
elsewhere in the record, and (other than Dr. Flores) different
treatment providers (A.R. 249-58). This report also describes a
different injury than the injury reported elsewhere in the record
(id.). Thus, it seems likely that this report relates to a
patient other than Plaintiff. The ALJ attributed this report to
Plaintiff and factored the report into the ALJ’s assessment of
Plaintiff’s residual functional capacity (A.R. 372-73).
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sleep pattern and mood, but also stating that he continued to

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experience a number of symptoms (i.e., nervousness, restlessness,

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difficulty falling asleep and staying asleep due to his pain, low

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energy during the day, fatigue, sadness, irritability, difficulty

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controlling his emotions and impulses, crying easily, frequent temper

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outbursts, lack of motivation, no interest in his usual activities or

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his appearance, guilt, lost self confidence, difficulty concentrating

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and remembering, loss of sexual desire, fear, hopelessness,

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helplessness, and worry about persisting pain and physical

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limitations, his mental condition, his financial circumstances, and

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his future) (A.R. 269-70).

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On mental status examination, Dr. Flores reported the following

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with respect to Plaintiff’s mood and affect, cognitive functioning,

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and sensorium: (1) Plaintiff was emotionally involved in the

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evaluation, his mood was anxious and sad, he exhibited apprehension

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and he displayed body tension; (2) his thought content was focused on

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a preoccupation concerning his somatic pain, physical limitations,

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sexual difficulties, financial circumstances, and marital problems;

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and (3) he reported difficulty remembering recent dates and order of

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events, and his concentration sometimes was deficient (A.R. 269).

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Flores reportedly also administered a post-treatment psychological

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battery of tests and indicated that a detailed “Psychological Test

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Report” would be sent as an addendum.

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contains no such addendum.

See A.R. 273-74.

The record

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Dr. Flores made diagnoses similar to those made on initial
evaluation and assessed a Global Assessment of Functioning (“GAF”)
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Dr.

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score of 48 (A.R. 262-63, 274).

A GAF score of 48 denotes “serious

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impairment in social, occupational, or school functioning (e.g., no

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friends, unable to keep a job).”

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Association, Diagnostic and Statistical Manual of Mental Disorders

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(“DSM”) 34 (4th Ed. 2000) (Text Revision) (GAF scale for range of 41-

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50).3

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moderate” psychiatric disability (A.R. 263, 276).

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recommended that, if Plaintiff returned to work and his symptoms

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persist, he should not work in any position where he might be at risk

See American Psychiatric

Dr. Flores opined that Plaintiff had “slight to moderate to
Dr. Flores

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of being involved in an industrial accident if he becomes anxious

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and/or distracted, he should not work at high altitudes, and, due to

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his irritability and lack of impulse control, he should not work in

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any position where he might be required to handle stress and/or

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conflicts on a regular basis while interacting with the public and/or

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coworkers (A.R. 277-78; see also A.R. 280-84).

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Consultative examiner Dr. Kikani prepared a Psychiatric

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Evaluation dated July 29, 2008 (A.R. 315-18).

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inter alia, hearing voices off and on, having thoughts like he wants

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to give up but with no definite suicide plan, feeling despair,

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helplessness, and hopelessness, and difficulty sleeping at night due

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to pain (A.R. 315-16).

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Trazodone which offer “variable relief” for his symptoms (A.R. 315).

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Plaintiff said he could not work due to his work-related injuries but

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he could attend to his own personal needs (i.e., feeding himself,

Plaintiff reported,

He was being treated with Lexapro and

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Clinicians use the GAF scale to rate “psychological,
social, and occupational functioning on a hypothetical continuum
of mental health-illness.” Id.
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dressing himself, bathing, toileting) (A.R. 316).

Dr. Kikani reviewed

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Dr. Flores’ and Dr. Tanagho’s records (A.R. 315-16).

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On mental status examination, Plaintiff appeared depressed and

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anxious, and showed excessive agitation, pressured speech, and

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preoccupation with his work-related injury (A.R. 316-17).

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into his current psychiatric problems was considered impaired (A.R.

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317).

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psychological factors and general medical condition (with a note to

His insight

Dr. Kikani diagnosed pain disorder associated with

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rule out mood disorder, depressed type, secondary to medical

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condition) (A.R. 317).

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psychosocial stressors secondary to Plaintiff’s medical condition and

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assigned a GAF of 50 (A.R. 317).

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“mild to moderate” impairment in: (1) his daily activities of living

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and social functioning; (2) concentration, persistence, and pace;

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(3) his ability to persist at normal work situations under normal work

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pressure; (4) his ability to respond appropriately to coworkers,

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supervisors, and the public; (5) his ability to respond appropriately

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to normal work situations, attendance, and safety; and (6) his ability

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to cope with changes in the routine work setting (A.R. 317).

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Plaintiff reportedly would have no problems remembering,

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understanding, and carrying out simple or complex instructions (A.R.

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317).

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to moderate episodes of emotional deterioration in normal work

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situations under customary work pressure (A.R. 317-18).

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described Plaintiff’s prognosis as “fair” with treatment (A.R. 318).

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Dr. Kikani rated as moderately severe the

Dr. Kikani opined that Plaintiff had

According to Dr. Kikani, Plaintiff may be expected to show mild

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Dr. Kikani

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State agency physician Dr. R. Paxton reviewed the record and

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prepared a Psychiatric Review Technique form dated August 18, 2008,

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which purported to find no “severe” mental impairments (A.R. 329-33

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(referencing A.R. 321 (summarizing Dr. Kikani’s opinion and claiming

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the evidence supports a non-severity finding))).

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Plaintiff’s functional limitations as “none” to “mild” (A.R. 331).4

Dr. Paxton rated

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The next available medical records reflect treatment with primary
care physician Dr. Huy Truong from December 13, 2010 through at least

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March 19, 2015 (A.R. 471-519).

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presented for a medication refill, complaining of, inter alia, trouble

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sleeping, chronic low back pain and sciatica, chronic insomnia, and

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depression (A.R. 519).

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insomnia, myalgia, stress, major depression, anxiety, acute

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bronchitis, and low back pain with sciatica (A.R. 519).

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prescribed Naproxen for pain, Soma for spasm, lidocaine patches, and

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Saphris (A.R. 519).

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depressed but sleeping well, and his mental “restlessness” had

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improved (A.R. 511).

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March of 2011, Plaintiff reported his mood was better, he was mentally

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“clearer,” and he slept well on Saphris (A.R. 509).

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Plaintiff reported he was depressed and sleeping “fair” (A.R. 507).

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In October of 2012, Plaintiff reported that he had run out of his

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medications for depression, was unable to sleep due to chronic back

In December of 2010, Plaintiff

Dr. Truong assessed a mood disorder, chronic

Dr. Truong

In February of 2011, Plaintiff reported he was

Dr. Truong prescribed Prozac (A.R. 511).

In April of 2011,

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The ALJ gave Dr. Paxton’s opinion “little weight,”
generally stating that evidence received at the hearing level
showed Plaintiff was more limited than Dr. Paxton had believed
(A.R. 380).
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In

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pain, was unable to make decisions, and could not work due to active

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mental illness (A.R. 489).

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auditory hallucinations, frequent confusion, anxiety, depression, and

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an active schizophrenic state when unmedicated (A.R. 489).

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assessed schizophrenia, anxiety disorder, depression, and insomnia

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(A.R. 489).

Plaintiff complained of visual and

Dr. Truong

Dr. Truong continued to prescribe Saphris (id.).

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Plaintiff then received treatment at the Riverside County
Department of Mental Health from February 25, 2013, through at least

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May 25, 2016 (A.R. 520-99).

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of depressed mood, crying spells, difficulty concentrating, and

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feeling useless, as well as fatigue, agitation and difficulty sleeping

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(A.R. 587-89, 592, 594).

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hallucinations (A.R. 589).

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medication due to not “taking the right ones,” and had been on and off

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medication for the past 10 years with minimal improvement (A.R. 587-

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88). On mental status examination, Plaintiff was tearful at times but

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his concentration seemed to be good, his mood was depressed, his

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affect was flat/depressed, but his insight and judgment were good

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(A.R. 588-89).

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house and taking care of their seven children who were 21, 15, 13, 11,

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5, 2, and 1 year(s) old (A.R. 589, 592).

In February of 2013, Plaintiff complained

He also claimed to have some auditory
He reportedly had never been stable on

Plaintiff reportedly helped his wife with cleaning the

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Plaintiff was diagnosed with major depressive disorder, single

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episode, severe without psychotic features, and alcohol abuse in

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remission (A.R. 587).

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he was prescribed Lexapro after reporting that Lexapro had been

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effective in the past (A.R. 582-85, 598).

His GAF was 50 (A.R. 587).

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In April of 2013,

In June of 2013, he

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reported “minimal” response to Lexapro and wanted the dosage increased

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(A.R. 580-81).

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Subsequent notes concern Plaintiff’s medical treatment following

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his September 3, 2013 work-related injury.

Plaintiff reportedly had

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fallen and injured his head and lower back (A.R. 600-757).

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On September 19, 2013, Plaintiff returned to the Riverside County

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Department of Mental Health, reporting he had “minimal” response to

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Lexapro, he was sad, and his sister had passed way the night before

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from breast cancer (A.R. 578).

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he was prescribed Vistaril (hyrdoxyzine) for anxiety (A.R. 579).

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December of 2013, Plaintiff reported he was feeling better since the

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start of hydroxyzine at night for anxiety and for sleep, but he still

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had anxiety (A.R. 575).

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three times per day when he feels anxious or needs to sleep (A.R.

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575).

Plaintiff’s Lexapro was increased and
In

He was told he could take hydroxyzine up to

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In January of 2014, Plaintiff received an updated psychiatric

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assessment which diagnosed major depressive disorder, recurrent,

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moderate, and anxiety disorder, unspecified (A.R. 569).

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examination, he avoided eye contact, had psychomotor slowing, his mood

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was depressed, irritable, and anxious, and his affect was constricted,

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blunted, and depressed (A.R. 571).

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an estimated GAF between 41 and 50 for the past year, indicating

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“serious symptoms or impairment” (A.R. 569).

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Plaintiff presented for a medication refill (A.R. 567).

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On

He was assigned a GAF of 48, with

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In June of 2014,

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It appears that Plaintiff attempted to work sometime in 2013-14.

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On October 28, 2014, Plaintiff reported he was “ok,” but had not had

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his medications for the past five or six months after becoming

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employed and not being able to get time off to make an appointment

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(A.R. 563).

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released from work (A.R. 563).

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depression/anxiety and wanted to continue his medications (A.R. 563).

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He was ordered to resume his previous medications (A.R. 564).5

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December of 2014, Plaintiff reported he was “stressed,” but had fair

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response to current medications and still had anxiety related to his

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finances and inability to work consistently (A.R. 560).

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dosage was increased to help with anxiety (A.R. 561).

Plaintiff reportedly had fallen and hit his head and was
He complained of poor sleep and

In

His Vistaril

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On October 1, 2014, neurologist Dr. M. Michael Mahdad
evaluated Plaintiff (A.R. 709-16). Plaintiff did not report
taking any psychotropic medications at that time and did not
report any injury after the September 3, 2013 injury (A.R. 710,
712). On examination, Plaintiff became emotional, motor
examination revealed “poor effort” with complaints of pain all
over his body including all of his joints, but muscle testing was
symmetric, with no atrophy, fasciculation, tremor, pronator
drift, or leg lag (A.R. 713). Sensory examination revealed
“strange subjective findings” (A.R. 713). Plaintiff reportedly
could not feel vibratory sensation all over the body including
his forehead, he could not feel pinprick throughout the upper
back, neck, shoulders, or parts of his arms and legs,
inconsistent with any anatomic distribution (A.R. 713). He had
the same issues with cold sensation (A.R. 714). Plaintiff had
painful range of motion in both shoulders and walked slowly (A.R.
714). Dr. Mahdad diagnosed diffuse pain with unusual sensory
loss distribution more than likely of “non-organic
symptoms/psychosomatic symptoms,” possible traumatic
fibromyalgia, but no definite neurologic deficit (A.R. 714-15).
Dr. Mahdad suggested follow up with pain management and a
psychological evaluation (A.R. 715).
In November and December 2014, orthopedist Dr. Timothy Gray,
who had been treating Plaintiff since April of 2014 (A.R. 722),
also requested a psychological evaluation (A.R. 700, 702).
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In December of 2014, Plaintiff presented to Dr. Truong for his

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annual physical examination, reporting that he had a work-related

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injury 15 months prior (i.e., in September of 2013) (A.R. 482-94).

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Plaintiff complained he could not do all his activities of daily

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living and needed help with everything (A.R. 482).

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returned in February of 2015 for a follow up, he reportedly was taking

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Lexapro (A.R. 476).

When Plaintiff

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In February of 2015, Plaintiff reported to his provider at the

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Riverside County Department of Mental Health that his depression was

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under control but he continued to have anxiety and asked to increase

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his Lexapro dose (A.R. 557).

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was restarted on Vistaril (A.R. 558).

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received an updated psychiatric assessment (A.R. 548-51).

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reported he had good and bad days (A.R. 548).

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tearful at times, he moved slowly, his mood was “back and forth,” his

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affect was dysthymic and constricted, and his concentration was

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slightly impaired (A.R. 550).

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(major depressive disorder) and anxiety disorder “NOS” (not otherwise

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specified) (A.R. 551).

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referred to a support group (A.R. 551-54).

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reported that his medications helped and that his depression and

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anxiety were improving, but back pain assertedly impacted his mood

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(A.R. 544-45).

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upcoming months (A.R. 544).

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545).

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medications after missing his previous appointment (A.R. 541).

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mood was “more anxious” (A.R. 542).

His Lexapro dose was increased and he
In May of 2015, Plaintiff
Plaintiff

On examination, he was

Plaintiff was diagnosed with “MDD”

His medications were continued and he was
In June of 2015, Plaintiff

He reportedly was going to be having surgery in the
His Vistaril dose was increased (A.R.

In August of 2015, Plaintiff reported that he had run out of

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His

His medications were continued

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(A.R. 542).

In September of 2015, Plaintiff reported he felt “so so,”

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was frustrated with legal issues, had lots of pain in his arm and neck

3

that contributed to his depression, had “some” anxiety, and was

4

waiting for his operation (A.R. 538).

5

(A.R. 539).

6

missed his next appointment (A.R. 535-36).

7

Plaintiff reported he had been “feeling better,” his back has been

8

hurting and he was waiting to see a specialist about his back,

9

shoulder, and wrists before having surgery (A.R. 532).

His affect was “frustrated”

His medications were continued (A.R. 539).

Plaintiff

In November of 2015,

He reported

10

that he had been more adherent with his medication, his sleep was

11

better, and he denied depression, anxiety, mania or psychosis (A.R.

12

532).

13

his next three appointments (A.R. 529-31).

His medications were continued (A.R. 533).

Plaintiff missed

14
15

In March of 2016, Plaintiff received another psychiatric

16

assessment (A.R. 524-27).

He was out of his medications and felt very

17

anxious (A.R. 524).

18

“well” and his mood and anxiety were under control (A.R. 524).

19

depression and anxiety returned when he went off his medications (A.R.

20

524).

21

(A.R. 526).

Before he ran out of his medications, things were
His

On mental status examination, his mood and affect were anxious
His medications were continued (A.R. 527).

22
23

The record also contains a “Narrative Report” dated June 15,

24

2016, wherein one of Plaintiff’s treating physicians with Riverside

25

County Mental Health, Dr. Brauer Trammell, indicated that Plaintiff

26

did not show an ability to: (1) maintain a sustained level of

27

concentration; (2) sustain repetitive tasks for an extended period;

28

and (3) adapt to new or stressful situations, and would not be able to
16

1

complete a 40 hour work week without decompensating (A.R. 523).

The

2

ALJ gave this opinion “little weight,” as supposedly conclusory and

3

not supported by the weight of the evidence (A.R. 380-81).

4

to the ALJ, Plaintiff’s condition was “largely controlled” with a

5

medication and treatment regimen (id.).

According

6
7

B.

The ALJ’s Stated Reasons for According “Little Weight” to

8

the Opinions of Dr. Flores and Dr. Kikani are Legally

9

Insufficient.

10
11

Under the law of the Ninth Circuit, the opinions of treating

12

physicians command particular respect.

13

weight should be given to the opinion of the treating source than to

14

the opinion of doctors who do not treat the claimant.”

15

Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted).

16

treating physician’s conclusions “must be given substantial weight.”

17

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v.

18

Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must give

19

sufficient weight to the subjective aspects of a doctor’s opinion.

20

. . .

21

physician”) (citation omitted); see also Orn v. Astrue, 495 F.3d 625,

22

631-33 (9th Cir. 2007) (discussing deference owed to treating

23

physicians’ opinions).

24

are contradicted,6 “if the ALJ wishes to disregard the opinion[s] of

“As a general rule, more

Lester v.
A

This is especially true when the opinion is that of a treating

Even where the treating physician’s opinions

25
26
6

27
28

Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v.
Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
17

1

the treating physician he . . . must make findings setting forth

2

specific, legitimate reasons for doing so that are based on

3

substantial evidence in the record.”

4

647 (9th Cir. 1987) (citation, quotations and brackets omitted); see

5

Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the

6

treating physician’s opinion, but only by setting forth specific,

7

legitimate reasons for doing so, and this decision must itself be

8

based on substantial evidence”) (citation and quotations omitted).

Winans v. Bowen, 853 F.2d 643,

9
10

Similarly, where an examining physician’s opinion is contradicted

11

by another physician’s opinion, as here, some Ninth Circuit

12

authorities suggest that an ALJ may reject the examining physician’s

13

opinion only “by providing specific and legitimate reasons that are

14

supported by substantial evidence.”

15

1012 (9th Cir. 2014) (citation and footnote omitted); see also Lester

16

v. Chater, 81 F.3d at 830-31; but see Nyman v. Heckler, 779 F.2d 528,

17

531 (9th Cir. 1985) (ALJ need not explicitly detail the reasons for

18

rejecting the contradicted opinion of a non-treating, examining

19

physician).

Garrison v. Colvin, 759 F.3d 995,

20
21

In the present case, the ALJ failed to state legally sufficient

22

reasons for rejecting the opinions of Dr. Flores, a treating

23

psychologist, and the opinions of Dr. Kikani, a consultative examiner.

24

The ALJ’s statement that the opinions assertedly were vague and

25

allegedly did not contain specific functional restrictions is

26

inaccurate and cannot constitute specific, legitimate reasoning.

27

summarized above, the Flores’ opinions were detailed and provided for

28

specific functional restrictions (i.e., Plaintiff should not work in
18

As

1

any position where he might be at risk of being involved in an

2

industrial accident if he becomes anxious and/or distracted, he should

3

not work at high altitudes, and should not work in any position where

4

he might be required to handle stress and/or conflicts on a regular

5

basis while interacting with the public and/or coworkers (A.R. 277-78;

6

see also A.R. 280-84).

7

provided specific functional restrictions (i.e., “mild to moderate”

8

impairment in: (1) activities of daily living, social functioning, and

9

in concentration, persistence, and pace; (2) Plaintiff’s ability to

Dr. Kikani’s opinions were also detailed and

10

persist at normal work situations under normal work pressure, respond

11

appropriately to coworkers, supervisors, and the public, respond

12

appropriately to normal work situations, attendance, and safety; and

13

(3) his ability to cope with changes in the routine work setting (A.R.

14

317-18).

15

expected to show mild to moderate episodes of emotional deterioration

16

in normal work situations under normal work pressure (id.).

Dr. Kikani also specifically stated that Plaintiff would be

17
18

A proper finding that a claimant’s condition is controlled with

19

medication sometimes can constitute a specific, legitimate reason for

20

discounting a physician’s opinion. See Warre v. Commissioner, 439 F.3d

21

1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled

22

effectively with medication are not disabling for the purpose of

23

determining eligibility for SSI benefits.”).

24

source opinion in the record states that Plaintiff’s anxiety,

25

depression and related symptoms in fact have been controlled with

26

medication.

27

Plaintiff’s depression and anxiety were controlled with medications

28

during any or all of the First or Second Alleged Disability Periods.

However, no medical

It is unclear from the treatment notes whether

19

1

As detailed above, the treatment notes show, at most, some symptom

2

improvement with medication, unexplained gaps in treatment, some

3

noncompliance with psychiatric medications, some changes in those

4

medications over time, and some “control” reported by Plaintiff with

5

adherence to his medications starting only around 2015.

6
7

The Ninth Circuit has observed that “it is a questionable

8

practice to chastise one with a mental impairment for the exercise of

9

poor judgment in seeking rehabilitation.”

Nguyen v. Chater, 100 F.3d

10

1462, 1465 (9th Cir. 1996) (citations and quotations omitted); see

11

also Garrison v. Colvin, 759 F.3d at 1018 n.24 (quoting Nguyen); Etter

12

v. Colvin, 2014 WL 2931145, at *2-3 (C.D. Cal. June 26, 2014) (finding

13

ALJ’s residual functional capacity assessment not supported by

14

substantial evidence where ALJ gave “little” weight to the psychiatric

15

consultative examiner’s opinion and, in doing so, highlighted that the

16

claimant had not received mental health treatment; citing, inter alia,

17

Nguyen); accord Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir.

18

2009) (“a mentally ill person’s noncompliance with psychiatric

19

medications can be, and usually is, the result of the mental

20

impairment itself and, therefore, neither willful nor without a

21

justifiable excuse”) (internal citations and quotations omitted);

22

Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006) (“mental

23

illness in general. . . may prevent the sufferer from taking

24

prescribed medications or otherwise submitting to treatment”)

25

(internal citations omitted).

26
27
28

In any event, the fact that Plaintiff reported improved symptoms
when he was taking his medications does not mean his symptoms actually
20

1

were “controlled” by medications.

“Cycles of improvement and

2

debilitating symptoms are a common occurrence [with mental health

3

impairments], and in such circumstances it is error for an ALJ to pick

4

out a few isolated incidents of improvement over a period of months or

5

years and to treat them as a basis for concluding that a claimant is

6

capable of working.”

7

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (“The fact that

8

a person suffering from depression makes some improvement ‘does not

9

mean that the person’s impairment [] no longer seriously affect[s]

Garrison v. Colvin, 759 F.3d at 1017; see also

10

[his] ability to function in a workplace.’”) (quoting Holohan v.

11

Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).

12
13

During the First Alleged Disability Period, Plaintiff had

14

reported that his symptoms improved when he took Lexapro and Trazodone

15

during his treatment with Dr. Tanagho from April 2006 through August

16

2008.

17

Tanagho’s notes that the medications ever effectively controlled

18

Plaintiff’s depression and anxiety.

19

taking Lexapro and Trazodone when he was examined by Dr. Kikani on

20

July 29, 2008, and yet Plaintiff had reported on July 13, 2008 that he

21

was doing only “a little better” (A.R. 236).

22

hearing voices off and on, having thoughts like he wanted to give up,

23

and feeling despair, helplessness and hopelessness (A.R. 315-16).

24

Plaintiff then appeared depressed and anxious, showed excessive

25

anxiety, agitation and pressured speech, and exhibited a preoccupation

26

with his work-related injury (A.R. 316-18).

27

Plaintiff’s insight into his current psychiatric problems was impaired

28

(A.R. 317).

See A.R. 235-38.

However, there is no indication in Dr.

See id.

Plaintiff was still

He also reportedly was

Dr. Kikani believed that

Based on this examination, Dr. Kikani opined that
21

1

Plaintiff would have significant mental functional limitations (A.R.

2

317-18).

3
4

There appears to be a gap in treatment between August of 2008 and

5

December of 2010.

Plaintiff thereafter reported continuing depressive

6

symptoms with some improvement on Saphris and Prozac during his

7

treatment with Dr. Truong from December of 2010 through April of 2011

8

(A.R. 507, 511, 519).

9

between May of 2011 and October of 2012.

There appears to be another gap in treatment
In October of 2012,

10

Plaintiff had run out of his medications for depression, and reported

11

depressive symptoms for which he again was prescribed Saphris (A.R.

12

489).

13

2012 and February 2013 when Plaintiff began treatment at the Riverside

14

County Department of Mental Health.

15

reported depressive symptoms and claimed he had never been stable on

16

medications (A.R. 587-89, 592, 594).

17

prescribed Lexapro after reporting that Lexapro had been effective in

18

the past (A.R. 582-85, 598).

19

response to Lexapro and wanted the dose increased (A.R. 580-81).

There appears to be a shorter gap in treatment between October

In February of 2013, Plaintiff

In April of 2013, Plaintiff was

In June of 2013, he reported “minimal”

20
21

During the Second Alleged Disability Period, Plaintiff’s

22

depression and anxiety may have been controlled for a time when

23

Plaintiff’s medications were changed to a higher dose of Lexapro and

24

hydroxyzine was added.

25

“minimal” response to Lexapro (A.R. 578).

26

and he was prescribed Vistaril (hyrdoxyzine) for anxiety (A.R. 579).

27

In December of 2013, Plaintiff reported he was feeling better since

28

the start of hydroxyzine but he still had anxiety, so he was told he

In September of 2013, Plaintiff reported

22

His Lexapro was increased

1

could take hydroxyzine more often (A.R. 575).

2

presented with depressive symptoms (A.R. 571).

3

Plaintiff’s continued depressive symptoms, it appears that Plaintiff

4

began working sometime between June of 2014 and October of 2014 and

5

was then off his medications.

6

he was “ok” without his medications for the past five or six months,

7

but he complained of poor sleep, depression, and anxiety, so his

8

Lexapro and Vistaril were resumed (A.R. 563-64).

9

Plaintiff reported he had a fair response to his current medications

10

In January of 2014, he
Notwithstanding

In October of 2014, Plaintiff reported

In December of 2014,

but he still had anxiety, so his Vistaril was increased (A.R. 560-61).

11
12

By February of 2015, Plaintiff reported that his depression was

13

under control but he continued to have anxiety and asked to increase

14

his Lexapro dose, so the does was increased (A.R. 557-58).

15

2015, he reported depressive symptoms, his mood was “back and forth,”

16

his affect was dysthymic and constricted, and his concentration was

17

slightly impaired, so his medications were continued (A.R. 548, 550-

18

54).

19

anxiety were improving, but his back pain impacted his mood (A.R. 544-

20

45).

21

medications after missing his last appointment and that his mood was

22

“more anxious,” so his medications were continued (A.R. 541-42).

23

September of 2015, Plaintiff reported he felt “so so,” had depression,

24

and “some” anxiety, and his affect was “frustrated,” so his

25

medications were continued (A.R. 538-39).

26

appointment (A.R. 535-36).

27

had been “feeling better,” and he denied depression, anxiety, mania or

28

psychosis (A.R. 532-33).

In May of

In June of 2015, Plaintiff reported that his depression and

In August of 2015, Plaintiff reported that he had run out of

In

Plaintiff missed his next

In November of 2015, Plaintiff reported he

Plaintiff’s medications were continued (A.R.
23

1

533).

Plaintiff inexplicably missed his next three appointments (A.R.

2

529-31).

3

and feeling very anxious (A.R. 524).

4

out of his medications, things were “well” and his mood and anxiety

5

were “under control” (A.R. 524).

6

apparently returned when he went off his medications (A.R. 524).

In March of 2016, Plaintiff returned, out of his medications
He reported that, before he ran

His depression and anxiety

7
8
9

Lastly, the Court observes that, to the extent the ALJ may have
impliedly rejected Dr. Flores’s opinion and Dr. Kikani’s opinion

10

because these doctors provided their opinions in the workers’

11

compensation context,7 such a consideration could not serve as a

12

specific, legitimate reason for discounting the opinions.

13

for which a medical opinion is obtained “does not provide a legitimate

14

basis for rejecting it.”

15

Cir. 1998); see Nash v. Colvin, 2016 WL 67677, at *7 (E.D. Cal.

16

Jan. 5, 2016) (“the ALJ may not disregard a physician’s medical

17

opinion simply because it was initially elicited in a state workers’

18

compensation proceeding . . .”) (citations and quotations omitted);

19

Casillas v. Colvin, 2015 WL 6553414, at *3 (C.D. Cal. Oct. 29, 2015)

20

(same); Franco v. Astrue, 2012 WL 3638609, at *10 (C.D. Cal. Aug. 23,

21

2012) (same); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal.

22

2002) (same).

23

///

24

///

25

///

26

///

The purpose

Reddick v. Chater, 157 F.3d 715, 726 (9th

27
7

28

See A.R. 380 (ALJ noting these doctors were “workers’
compensation providers”).
24

1

II.

Remand is Appropriate

2
3

The Court is unable to deem the ALJ’s errors to have been

4

harmless.

5

(an error “is harmless where it is inconsequential to the ultimate

6

non-disability determination”) (citations and quotations omitted);

7

McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not

8

harmless where “the reviewing court can determine from the

9

‘circumstances of the case’ that further administrative review is

10

needed to determine whether there was prejudice from the error”).

11

There remain significant unanswered questions in the present record.

12

Cf. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (remanding

13

for further proceedings to allow the ALJ to “comment on” the treating

14

physician’s opinion).

15

would be required to find Plaintiff disabled throughout the alleged

16

periods of disability even if the opinions of Dr. Flores and Dr.

17

Kikani were fully credited.

See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

For instance, it is not clear that the ALJ

18
19

Remand is appropriate because the circumstances of this case

20

suggest that further administrative review could remedy the ALJ’s

21

errors.

22

Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative

23

determination, the proper course is remand for additional agency

24

investigation or explanation, except in rare circumstances); Dominguez

25

v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district

26

court concludes that further administrative proceedings would serve no

27

useful purpose, it may not remand with a direction to provide

28

benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th

See McLeod v. Astrue, 640 F.3d at 888; see also INS v.

25

1

Cir. 2014) (remand for further administrative proceedings is the

2

proper remedy “in all but the rarest cases”); Garrison v. Colvin, 759

3

F.3d at 1020 (court will credit-as-true medical opinion evidence only

4

where, inter alia, “the record has been fully developed and further

5

administrative proceedings would serve no useful purpose”);

6

Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038

7

(2000) (remand for further proceedings rather than for the immediate

8

payment of benefits is appropriate where, as here, there are

9

“sufficient unanswered questions in the record”).

Harman v.

10
11

RECOMMENDATION

12
13

For the foregoing reasons,8 IT IS RECOMMENDED that the Court

14

issue an Order: (1) accepting and adopting this Report and

15

Recommendation; and (2) directing that Judgment be entered reversing

16

in part the decision of the Administration and remanding the matter

17

for further administrative action consistent with this Report and

18

Recommendation.

19
20

DATED: September 7, 2017.

21
22
/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
8

27
28

The Court need not and does not reach any other issue
raised by Plaintiff except insofar as to determine that reversal
with a directive for the immediate payment of benefits would not
be an appropriate remedy at this time.
26

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

No notice of appeal pursuant to the