Margulis v. Commissioner of Social Security

Filing 21

ORDER REVERSING the ALJ's Decision and REMANDING CASE for an Award of Benefits signed by Magistrate Judge Sheila K. Oberto on 3/6/2015. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAX SHELDON MARGULIS,

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Case No. 1:13-cv-02021-SKO
ORDER ON PLAINTIFF’S COMPLAINT

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Plaintiff,

(Doc. No. 21)

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v.

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CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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Defendant.

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____________________________________

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I.

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INTRODUCTION

Plaintiff, Max Sheldon Margulis (“Plaintiff”), seeks judicial review of a final decision of

23 the Commissioner of Social Security (the “Commissioner”) denying his application for Disability
24 Insurance Benefits (“DIB”) benefits pursuant to Title II and XVI of the Social Security Act.
25 42 U.S.C. § 405(g), 1383 (c). The matter is currently before the Court on the parties’ briefs,
26 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States
27 Magistrate Judge.1
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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 6, 8.)

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II.

FACTUAL BACKGROUND

Plaintiff was born on March 19, 1992, and alleges disability beginning on March 19, 2010.

3 (AR 9-24; 276-87.) Plaintiff claims he is disabled due to bipolar disorder, anxiety disorder,
4 depression, attention deficit disorder, intermittent explosive disorder, dyslexia, speech and
5 language disorder, learning disorders, digestive disorder, neurological disorder, and “[m]ental
6 disorders and physical conditions.” (AR 279.)
7 A.

Relevant Medical Evidence

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a.

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On December 11, 2004, Plaintiff was seen at the Children Crisis Center (“CCAIR”) after

Hospital Records

10 he threatened to jump off a ledge in his house because he “was upset with his father because the
11 father did not buy him a Yu Gi Yo card that he wanted.” (AR 464-65.) Notes indicate that
12 Plaintiff’s paternal uncle and nephew are diagnosed with bipolar disorder. (AR 466.) Clinician
13 Sam Adams noted that Plaintiff “continues to make threats when he [is] angry” and opined that it
14 “appears to be a form of manipulation” and “a way of influencing his father’s behavior.”
15 (AR 469.)
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On January 28, 2009, Plaintiff was seen by Dr. Syed A. Hamid, M.D., FAAP, for a follow-

17 up consultation for his gastroesophageal reflux.

(AR 330-31.)

An upper endoscopy was

18 completed on December 30, 2008, and biopsies all came back negative, but Dr. Hamid prescribed
19 daily Prilosec and dietary restrictions to help with his ongoing nausea and regurgitation.
20 (AR 331.)
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On May 31, 2009, Chameka Howell, CMHS, at Fresno County Children and Family

22 Services noted that Plaintiff had been placed on a 5150 hold for suicidal thoughts, which Plaintiff
23 believed had been caused by one of his medications. (AR 461.) Sharon Glover, MHN II, noted
24 that Plaintiff “presented with a sad affect and poor eye contact” and reported that he was sad six
25 out of seven days a week and had been thinking about suicide for two years. (AR 463.) On
26 June 1, 2009, Myral Pacheco, MS, UMHC, noted Plaintiff “presented as depressed with flat affect.
27 He reported feeling suicidal for two years but with no plan and no intent. [Plaintiff] stated he had
28 not told his psychiatrist he was having [suicidal ideations] because he thought he wouldn’t be
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1 taken serious.” (AR 460.) He reported that his suicidal thoughts were brought on because he was
2 failing math class. (AR 460.)
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Plaintiff was seen on August 30, 2009, at Community Regional Medical Center after

4 jumping off a 17 foot staircase with the “intention to injure himself.” (AR 332; 339; 455; 458-59;
5 see also AR 448 (police report).) He “climbed up on the stair railing” and jumped off, landing on
6 the floor and hitting his ankles, back, and head. (AR 285.) He lost consciousness for about five
7 minutes, awoke at the scene of the jump, and though he complained of neck and back pain, he
8 sustained no fractures. (AR 332; 334-38; 340-44.) He was put on a 5150 hold as a result of his
9 attempt at “self-injury.” (AR 333.) In a progress note from Fresno Community Regional Medical
10 Center, Plaintiff
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. . . appeared anxious and there was a noticeable [tremor] that appears to be a side
effect of the medications [Plaintiff] is taking. [Plaintiff]’s speech was sometimes
unintelligible and he appeared to be confused and [made] minimal eye contact.
[Plaintiff] stated he got upset with his father because his father was upset with
him. [Plaintiff] stated he barricaded himself in his bedroom and his father broke
into his bedroom and grabbed him. [Plaintiff] stated his memory is foggy and he
is not sure at what point he jumped off the top of the stair landing. [Plaintiff]
stated he has had suicidal ideations in the past and there is documentation of
[Plaintiff] presenting at the CCAIR Unit exhibiting similar suicidal ideations.
[Plaintiff] denies any suicidal ideations at this time but appears to continue to be
anxious and unstable at this time.

18 (AR 455.) He was diagnosed with an “adjustment disorder” (AR 361) and discharged home.
19 (AR 363).
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Plaintiff was admitted to Vista Del Mar Hospital from August 31 to September 2, 2009, on

21 a 5585 hold as a “danger to self.” (AR 347; 350-51; 353; 354-55.) Dr. Robert Carvalho, M.D.,
22 noted that during “family therapy, [Plaintiff]’s father minimized [Plaintiff]’s and father’s anger
23 and impulse control issues. At the end of the 5585, parents [signed Plaintiff] out of the hospital
24 against medical advice.” (AR 347.) Dr. Carvalho noted on discharge that Plaintiff “had tremor of
25 hands, left greater than the right. [Plaintiff] was anxious and depressed with constricted affect.
26 Fair insight. Fair judgment.” (AR 348.)
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Plaintiff was seen on April 4, 2010, at Clovis Community Medical Center, for self-injury

28 by “abraded wrist,” complaining of “situational problems” with his parents, anxiety, and
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1 depression. (AR 356-58.) Imaging of the lumbar spine on October 25, 2010, was normal.
2 (AR 369.)
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Plaintiff was seen at Community Medical Centers by Lana Williams, M.D., on October 14,

4 2011, after “putting a knife to his throat and threatening to cut himself” “because he was
5 depressed.” (AR 484.) Diagnoses included bipolar disorder, Asperger’s Syndrome, intermittent
6 explosive disorder, and psychosocial mental illness. (AR 484.)
Dr. Fox’s Records

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b.

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Plaintiff was seen by David A. Fox, M.D., sporadically twenty-three times from March 4,

9 2005, through October 24, 2011, for consultations regarding his diagnoses of bipolar disorder,
10 Asperger’s Syndrome, Attention-Deficit Disorder, and Intermittent Explosive Disorder. (AR 37011 88; 422-24; 488-91.)
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On August 17, 2011, Dr. Fox, completed a mental residual functional capacity (“RFC”)

13 form, opining that Plaintiff was “limited but satisfactory” in his ability to make simple work14 related decisions, get along with co-workers or peers, and respond appropriately to changes in a
15 routine work setting; “seriously limited, but not precluded” in his ability to remember work-like
16 procedures, carry out very short and simple instructions, accept instructions and respond
17 appropriately to criticism from supervisors, and maintain socially appropriate behavior; “unable to
18 meet competitive standards” in his ability to understand and remember very short and simple
19 instructions, maintain attention for a two-hour segment, maintain regular attendance and be
20 punctual within customary tolerances, sustain an ordinary routine without special supervision,
21 work in coordination with or proximity to others without being unduly distracted, perform at a
22 consistent pace without an unreasonable number and length of rest periods, interact appropriately
23 with the public, and ask simple questions or request assistance; and, had “no useful ability to
24 function” in completing a normal workday and workweek without interruptions from his
25 psychologically based problems, use public transportation or travel in an unfamiliar place, or deal
26 with normal work stress. (AR 477-79.)
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Dr. Fox opined that Plaintiff “has been unable to sustain himself in school, or work or

28 social environments for [the] past 2 years. Anxiety makes him non-functional.” (AR 478.)
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1 Further, Plaintiff “rapidly deteriorates under any type of work demand, performance expectation,
2 or pressure to complete tasks.” (AR 488.) Dr. Fox also scored Plaintiff at a “current” GAF2 score
3 of 40, with his “highest” GAF of the past year at a 45 (AR 477), and opined that Plaintiff would be
4 absent more than 4 days a month as a result of his impairments. (AR 479.)
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Dr. Fox also completed a Physical Capacities Evaluation, opining that Plaintiff had no

6 physical limitations but would be limited to sitting, standing, or walking only 4 hours within an 87 hour workday and was totally restricted from activities involving hazards. (AR 481-82.)
Dr. House’s Records

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c.

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Plaintiff was seen by Matt House, D.O., beginning on December 15, 2011, and again on

10 January 10, March 7, and April 25, 2012, for general care. (AR 506-10.) Plaintiff reported
11 experiencing increased anxiety recently on May 22, 2012, (AR 574), and on June 19, 2012, Dr.
12 House noted Plaintiff was “hypersomnolent,” not depressed or experiencing significant anxiety,
13 but was “very tired” and had been sleeping 15-18 hours a day. (AR 573.)
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On April 24, 2012, Dr. House completed a mental RFC form, opining that Plaintiff was

15 “seriously limited, but not precluded” in his ability to understand, remember, and carry out very
16 short and simple instructions and ask simple questions or request assistance; was “unable to meet
17 competitive standards” in his ability to understand and remember detailed instructions or work18 like procedures, maintain attention for a two-hour segment, maintain regular attendance and be
19 punctual within customary tolerances, make simple work-related decisions, perform at a consistent
20 pace without an unreasonable number and length of rest periods, accept instructions and respond
21 appropriately to criticism from supervisors, get along with co-workers or peers, maintain socially
22 appropriate behavior, or interact appropriately with the public; and had “no useful ability to
23 function” in his ability to sustain an ordinary routine without special supervision, work in
24 coordination with or proximity to others without being unduly distracted, complete a normal
25 workday and workweek without interruptions from his psychologically based problems, carry out
26 detailed instructions, set realistic goals or make plans independently of others, deal with stress of
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Global Assessment of Functioning (GAF) scale score is a numeric scale (1 through 100) used by mental health
clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults. DSMIV-TR at 34.

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1 semiskilled and skilled work, use public transportation or travel in an unfamiliar place. (AR 5012 04.)
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Dr. House opined that Plaintiff’s “mental health condition precludes [him from]

4 functioning in [the] areas indicated.”

(AR 502.)

Dr. House assessed Plaintiff as having a

5 “current” GAF score of 50, assessed Plaintiff’s “highest” GAF score of the past year also at 50
6 (AR 501), and opined that Plaintiff would be absent more than 4 days a month as a result of his
7 impairments. (AR 504.)
Dr. Hill’s Records

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d.

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On August 12, 2011, Dr. Mary Hill completed a mental RFC questionnaire, opining that

10 Plaintiff was “limited but satisfactory” in his ability to remember work-like procedures,
11 understand, remember, and carry out very short and simple instructions, ask simple questions or
12 request assistance, and be aware of normal hazards and take appropriate precaution; “seriously
13 limited, but not precluded” in his ability to work in coordination or proximity to others, make
14 simple work-related decisions, and interact with the public; some mix of “seriously limited” and
15 “unable to meet competitive standards” in his ability to perform at a consistent pace without an
16 unreasonable number and length of rest periods, accept instructions and respond appropriately to
17 criticism from supervisors, get along with co-workers or peers, or respond appropriately to
18 changes in a routine work setting; and “unable to meet competitive standards” “at present” in his
19 ability to maintain attention for two-hour segments, maintain regular attendance and be punctual,
20 sustain an ordinary routine without special supervision, complete a normal workday and
21 workweek without interruptions from psychologically based symptoms, set realistic goals or make
22 plans independently of others, deal with stress of semiskilled or skilled work, or deal with normal
23 work stress. (AR 429-31.)
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Dr. Hill specifically opined that Plaintiff’s “current mental status is highly reactive under

25 pressure” and that he is “physically capable and intellectually capable of more than his emotional
26 ability to cope[.]” (AR 430.) Finally, Dr. Hill opined that Plaintiff would be absent from work
27 more than four days per month due to his impairments, including his “overwhelming anxiety” and
28 “poor social skills development and utilization.” (AR 431.)
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Dr. Hill also completed a physical capacities evaluation opining that Plaintiff was limited

2 to carrying 25-50 pounds only occasionally, and all lesser weights frequently, had no postural or
3 manipulative limitations, and was totally restricted from activities involving fumes, odors, dust,
4 gases, or poor ventilation by his asthma. (AR 427-28.) She also noted that were Plaintiff “able to
5 participate in a well[-]run structured living facility with possible modification of his medication
6 regimen, [ ] he would improve his prospects for calm semiskilled work. Without this he has very
7 limited employment prospects.” (AR 428.)
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In an undated letter, Dr. Hill noted that Plaintiff was characterized by his slow responses to

9 questions and poor eye contact, difficulties developing social skills and enduring friendships, and
10 “inability to cope with anticipated stressors” and “any sort of confronting or pressured
11 circumstance[.]” (AR 432.) Dr. Hill observed that Plaintiff “experiences both physical (vomiting)
12 and psychic distress, as well as physical outbursts which endanger him and anyone around him.
13 He remains immature and inappropriately dependent on his parents.” (AR 432.)
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e.

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On April 30, 2012, Howard J. Glidden, PhD, completed a neuropsychological evaluation

Neurological Evaluation by Dr. Glidden

16 of Plaintiff. (AR 512-52.) Dr. Glidden administered the Wechsler Adult Intelligence Scale-IV,
17 Wechsler Memory Scale-III (Spatial Span Test), Visual Search and Attention Test, Rey-Osterreith
18 Complex Figure Test, Hopkins Verbal Learning Test-Revised, Behavior Rating Inventory of
19 Executive Function, Interview for Autistic Spectrum Disorder Symptomatology, Social
20 Communication Questionnaire, Beck Depression Inventory-II, Beck Anxiety Inventory, Mental
21 Status Examination, and a pre-test interview. (AR 512.)
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Plaintiff presented as

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. . . an alert, fully oriented, well-developed, non-dysmorphic, socially reserved,
predominantly right-handed, 20-year-old male who appeared to be his stated age
and in no acute distress. Vision and hearing appeared to be within functional
limits and were uncorrected. Hygiene and habits of dress were unremarkable. He
was well-kempt and neatly groomed. [Plaintiff] consented to the evaluation,
attempting all tasks presented. There was no evidence of noncompliance or
minimization of effort. Attention and ability to focus concentration for verbal and
nonverbal information were variable, but were certainly sufficient to allow
completion of this lengthy evaluation without challenge. There did appear to be
some erosion of attention secondary to anxiety, which impacted performance on

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novel learning tasks. There was no evidence of impulsivity or hyperkinesis. Task
persistence and tolerance for frustration appeared to be within normal limits.
Affectively, his mood appeared anxious, consistent with parental report. There
was no unusual posturing, nervous mannerisms, signs of agitation or stereotypies.
Cognitive tempo appeared to be intact. Thought processes appeared to be within
normal limits, with a spontaneous stream of activity. Thought content was
appropriate, cogent and directed, without evidence of associational disturbance.
Error recognition and utilization appeared to be intact. Cognitive flexibility was
evident. There was no evidence of perseverative interference or difficulty in
shifting from one task to another. There was no evidence of a formal thought
disorder. Evaluation of speech revealed mild to moderate disarticulation
consistent with history of phonological disorder.

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Plaintiff scored in the Low Average to Average range in verbal digit span and Borderline

10 in verbal arithmetic, and Low Average in the Spatial Span Test, Visual Search and Attention Test,
11 and visuomotor test. (AR 529-30.) Plaintiff scored in the Average range on the Rey-Osterreith
12 copy and recognition tests, Low Average on the Rey-Osterreith immediate recall test, and
13 Impaired to Borderline on the Hopkins Verbal Learning Test-Revised. (AR 530.) Plaintiff scored
14 in the Average range in the Wechsler Adult Intelligence Scale-IV verbal comprehension and
15 perceptual reasoning subtests, and in the Low Average to Borderline range on the working
16 memory and processing speed subtests. (AR 531.) This resulted in a full scale IQ score of 92, in
17 the thirtieth percentile and within the Average range, which Dr. Glidden opined was representative
18 of “statistical averaging” and “should not be viewed as indicative of his ‘overall’ level of
19 intellectual ability” due to the significant variability among Plaintiff’s subtest scores. (AR 518;
20 531.)

Plaintiff was given a 75 Global Executive Composite score, within the ninety-ninth

21 percentile. (AR 532.) Results of the Beck Depression Inventory-II yielded a total score of 24,
22 within the Moderate range, and results of the Beck Anxiety Inventory yielded a total score of 34,
23 within the Severe range. (AR 520.)
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When evaluating Plaintiff’s “autistic” behaviors, Dr. Glidden noted that Plaintiff

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. . . does not appear disinterested when spoken to, does not exhibit eye-gaze
aversion, would rather be with others than alone, and does not have difficulty
expressing emotions. He does not exhibit perseverative behaviors including: hand
flapping/waving when excited, spinning objects or himself repetitively, smelling
or tasting objects repetitively, liking to stroke different textures, echolalia, or
lining up objects. He does not have an unusual memory for past events or places,

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does not have a developed expertise, does not have a high tolerance for pain,
comes to his parents for comforting when hurt, does not insist on maintenance of
routines, and has well-developed joint attention.

3 (AR 515.) Further, results of the “Social Communication Questionnaire, a dimensional measure
4 of Autistic Spectrum Disorder symptomatology . . . yielded a total score of 6. This is well below
5 the conservative cut-off score of 15 recommended by the test’s authors for a more comprehensive
6 evaluation of an Autistic Spectrum Disorder.” (AR 520.) Dr. Glidden opined that a diagnosis of
7 Autistic Spectrum Disorder was not “warranted.” (AR 521.)
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However, Dr. Glidden opined that based on parental report, self-report, review of the

9 medical records, and the evaluation, Plaintiff could be credibly diagnosed as suffering from
10 Generalized Anxiety Disorder and Social Phobia. (AR 522-23.) In his opinion, “[b]ecause of the
11 severe social phobia experienced, [Plaintiff] is at a significantly reduced capacity to function in a
12 work setting[.]”

(AR 523.)

Various coping skills, memory-aiding skills, and socialization

13 techniques were recommended to aid Plaintiff, and academic accommodations and reading
14 materials were proposed to help Plaintiff. (AR 524-28.)
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Dr. Glidden concluded that

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Acute neuropsychological sequelae do not appear to be present in [Plaintiff’s]
profile. There is no evidence of a focal, lateralized or progressive organic
impairment. There is no further evidence that [Plaintiff] has experienced a
diminution of cognitive skills and abilities over time. Rather the affective
challenges noted appear to be of developmental/familial origin, rather than newly
acquired, particularly when one takes into account [Plaintiff’s] developmental,
academic, medical and interpersonal histories.

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(AR 521.)
f.

Internal Medicine Evaluation by Dr. Damania

On December 16, 2010, Plaintiff was examined by Rustom F. Damania, M.D., at Valley

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Health Resources at the request of the agency. (AR 389-94.) Noting that Plaintiff’s bilateral hand

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tremors were “coarse” and more pronounced when extended, but “would stop as soon as [Plaintiff]

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held onto an object[,]” Dr. Damania concluded that Plaintiff’s chronic hand tremors were

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“probably secondary to chronic anxiety.” (AR 393.) Dr. Damania opined that Plaintiff

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. . . should be able to lift and carry 50 pounds occasionally and 25 pounds
frequently. [He] can stand and walk without restriction[ ] [and] sit without
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restriction. No assistive device is necessary for ambulation. No postural
limitations to bending, stooping or crouching. No definite manipulative
limitations but he may have difficulty with using small tools or anything that
requires fingering because of his tremors which are secondary to anxiety. No
relevant visual or communicative impairments.

4 (AR 393.)
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g.

Psychological Evaluation by Dr. Murphy

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On January 26, 2011, Plaintiff was examined by James P. Murphy, M.D., at the request of

7 the agency, and administered the Comprehensive Trail Making Test, Bender Visual Motor Gestalt
8 Test-II, Wechsler Adult Intelligence Scale-IV, and Wechsler Memory Scale-IV. (AR 399-403.)
9 Dr. Murphy observed that Plaintiff’s
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. . . attention was within normal limits and he was oriented to person, place, time,
and purpose for the interview. His memory appeared to be intact for short term
and remote recall. His eye contact was appropriate and his facial expression was
responsive. His attitude towards this interviewer and the testing assignments was
cooperative and friendly. He described his mood as “okay” and his emotional
expression was congruent to his reported mood. His flow of speech was normal
for rate, rhythm, tone, and articulation but [he] appeared to have difficulty
pronouncing some words clearly.
[Plaintiff]’s thoughts were clear, coherent, well organized, goal directed, and
relevant to the subject at hand. He was able to handle ideas well, and could
identify basic similarities, differences, and absurdities.

17 (AR 400.)
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In the Comprehensive Trail Making Test, Plaintiff scored in the 13th percentile on Part A,

19 the 50th percentile on Part B, and the 4th percentile in Part C. (AR 400-01.) Though his scores
20 mostly fell in the Average range, Dr. Murphy noted that Plaintiff’s “overall score was at the 10th
21 percentile which indicates that 90 percent of the population would score higher than he did.”
22 (AR 401.) Plaintiff scored in the High Average to Average range on the Bender Visual Motor
23 Gestalt Test-II, and scored as Low Average Level of Intelligence on the Wechsler Adult
24 Intelligence Scale-IV. (AR 401.) “He scored strongest in the Verbal Comprehension (VCI) level
25 at the 37th percentile and weakest in the Working Memory (WMI) level at the 6th percentile.”
26 (AR 401.) Plaintiff scored in the Mildly Impaired range on the Wechsler Memory Scale-IV.
27 (AR 402.)
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Dr. Murphy opined that Plaintiff’s “test scores are representative of his skills and abilities

2 and he has consistently functioned at a lower level than he is capable of performing and it appears
3 that this lack of performance is due partially to his emotional and physical difficulties.” (AR 402.)
4 Dr. Murphy opined Plaintiff
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(A) . . . does have restrictions concerning daily activities.
(B) . . . does have difficulty maintaining social function.
(C) . . . does not appear to have problems with concentration, persistence and pace
that could jeopardize his ability to work.
(D) . . . would not experience episodes of emotional deterioration in work like
situations.
(1) . . . is capable of understanding, carrying out, and remembering simple
instructions.

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(2) . . . will not have difficulty responding appropriately to co-workers,
supervisors, and the public.

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(3) . . . will not have difficulty responding appropriately to usual work situations.

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(4) . . . will not have difficulty dealing appropriately with changes in routine work
settings.

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(5) . . . does have limitations due to mental impairment. Bipolar Disorder by
history[.]

16 (AR 402-03.) Dr. Murphy opined Plaintiff had a GAF of 60, and concluded Plaintiff “is capable
17 of performing Simple Repetitive Tasks (SRT) on a regular basis.” (AR 403.)
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h.

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On February 10, 2011, Philip Walls, M.D., completed a Psychiatric Review Technique

Psychiatric Review Technique Form

20 Form and Mental RFC. (AR 404-21.) Dr. Walls opined that Plaintiff suffered from organic
21 mental disorders, affective disorder, anxiety-related disorders, mild Attention-Deficit Disorder and
22 a possible learning disorder (AR 404-05), as well as disturbance of mood and bipolar disorder
23 with a history of episodic manic and depressive syndromes (AR 407) and Intermittent Explosive
24 Disorder (AR 409). However, Dr. Walls opined that Plaintiff did not meet any Listing, nor did he
25 meet the Paragraph “B” criteria because he only had moderate limitations in his activities of daily
26 living and moderate difficulties in maintaining concentration, persistence, or pace, and only mild
27 difficulties in maintaining social functioning and one or two episodes of decompensation, each of
28 extended duration. (AR 414.)
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Dr. Walls opined that Plaintiff was moderately limited in his ability to understand,

2 remember, and carry out detailed instructions, interact appropriately with the public, accept
3 instructions and respond appropriately to criticism from supervisors, and respond appropriately to
4 changes in a work setting, but was not significantly limited in any other area. (AR 418-19.) Dr.
5 Walls concluded that while Plaintiff’s “possible learning disorder” would impair his ability to
6 understand complex instructions and his mood changes and anxiety would limit his ability to
7 interact with the public and accept supervision, he can understand and carry out simple tasks,
8 complete a normal workday and workweek, and adapt to changes in simple routines. (AR 420.)
9 B.

Education Records

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a.

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An educational evaluation dated September 30, 2005, based on observing Plaintiff during

Clovis Unified School District Records

12 class, reflected that Plaintiff “appeared to be attentive and focused on the lecture” and that “he was
13 engaged with the other boys in the group.” (AR 272.) On February 5, 2008, Plaintiff received a
14 sufficient score to pass the California High School Exit Exam (AR 239), and on May 14, 2009,
15 Plaintiff received proficient scores in history and science, basic scores in English/language arts,
16 and below basic scores in mathematics in the California Standards test. (AR 240.) In October
17 2008, Plaintiff’s Art teacher noted that Plaintiff’s performance was “borderline.” (AR 259.) In
18 September 2009, Plaintiff’s Cross Age PE teacher reported “he is a responsible student who is
19 good with the elementary students under him” and his American Government teacher reported he
20 “is a good student who comes to class prepared and relates well with both the teacher and peers.”
21 (AR 240.) The American Government teacher noted that Plaintiff was attentive in classes, but
22 expressed concern about the volume of Plaintiff’s absences and his making up missed work.
23 (AR 240.) The Auto shop teacher agreed that Plaintiff’s absences made “progress difficult as all
24 work is done in class” and the English teacher noted that Plaintiff was continually “missing
25 assignments due to absences.” (AR 249.) In September 2009, Plaintiff had “32 periods of
26 excused absences, 4 periods of doctor’s absences, and 6 excused tardies during the first six weeks
27 of school.” (AR 240.)
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b.

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David A. Oakley, M.S., Licensed Educational Psychologist, evaluated Plaintiff on October

Triennial Psychological Evaluation

3 19, 2005, to assess his progress and educational needs. (AR 264-71.) Mr. Oakley noted that
4 beginning in 2002, Plaintiff had a “Behavior Plan” developed “to address his social anxieties and
5 avoidant behaviors” in school, and that his anxiety had “diminished markedly and he had become
6 more independent over the course of his 7th grade year[.]”

(AR 264-65.)

As part of the

7 evaluation, Mr. Oakley administered the Weschler Intelligence Scale for Children-III (“WISC8 III”), Bender Gestalt, Behavioral Assessment Scale for Children (“BASC”), Attention Deficit
9 Disorder Evaluation Scales (“ADDES”), and conducted a student interview. (AR 265.)
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In the WISC-III test, Plaintiff scored a 105 verbal IQ (63rd percentile), 94 performance IQ

11 (34th percentile), 99 full scale IQ (47th percentile), 110 Verbal Index (75th percentile), 100
12 Perceptual Organization Index (50th percentile), and Feature Detection Index 72 (3rd percentile).
13 (AR 265.) Mr. Oakley opined that Plaintiff “demonstrated overall intellectual abilities that fell
14 within the average range and at the 47th percentile, however, the sub-test variation was significant
15 enough that “the full scale IQ should be interpreted with caution and is likely an unreliable
16 measure and underestimate of [Plaintiff]’s true learning potentials.” (AR 266.) Mr. Oakley also
17 noted that Plaintiff “presented mild, but noticeable, apprehension” at the beginning of the
18 evaluation, and opined that “[i]t is likely that his performance was affected by this anxious
19 response style.” (AR 266.)
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In the Social-Emotional BASC test, Plaintiff scored within the average range for

21 externalizing and internalizing problems, school problems, and adaptive skills, and as “at-risk” in
22 somatization (physical manifestation of his anxiety symptoms). (AR 267.) His math and science
23 teachers noted Plaintiff’s anxiety in their classes. (AR 267.) His science teacher noted the
24 following: “he responds best with encouragement and positive feedback during class to maintain
25 his effort and anxiety level[,]” he experiences “anxious reactions to work demands” and
26 “apprehension when attempting novel activities or activities requiring extended explanation or
27 independent organization.” (AR 267.) Plaintiff’s academic block and science teachers both noted
28 Plaintiff “is prone to confusion (cognitive blocking and recall difficulties) and can become visibly
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1 anxious exhibiting shakiness, stammered speech, and memory loss[,]” but reflected that Plaintiff
2 “does well in asking for assistance.” (AR 267.)
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In the ADDES test,

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[t]eacher ratings of [Plaintiff]’s behaviors in the classroom indicate a child whose
inattentive and hyperactive/impulsive behaviors are inconsistent and somewhat
situation specific to the type of class and expected demands for organization and
time management.

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. . . While neither [responding teacher] noted hyper/impulsive behavior, his
science teacher noted more difficulties with [Plaintiff]’s attention in her classroom
rating him at the Borderline range. Time constraint, instructional pace, and
structure of the Science classroom increase distractibility for [Plaintiff] causing
him to require repetition of directions and assistance with task organization.

10 (AR 268.)
11

Mr. Oakley concluded that Plaintiff “is a friendly and cooperative 8th grader with a

12 medically diagnosed attention deficit disorder and anxious learning style . . . . managed on
13 medications.” (AR 269.) Plaintiff “is well behaved and well liked by classmates and faculty” and
14 “has friends and reports no social difficulties.” (AR 269.)
15

c.

Work Permit Records

16

On April 16, 2008, and April 1, 2009, Plaintiff applied for work permits for “casual labor”

17 through Clovis West High School (AR 554; 557.) In an undated application to work with
18 Goodwill, Plaintiff noted he could “use [a] computer” and lived with his parents. (AR 560.) On
19 January 8, 2010, Plaintiff was assessed as having Category 1 “Most Significant” disability in his
20 communication and interpersonal skills by his Department of Rehabilitation counselor Jennifer
21 Klassen. (AR 568-69.)
22 C.

Testimony

23

1.

24

Plaintiff completed an Adult Function Report on November 19, 2010, stating that on a

Adult Function Report

25 normal day he eats breakfast, plays video games with friends, and watches television, and
26 sometimes takes a nap or goes out with his parents. (AR 288.) He has friends visit his house two
27 times a week. (AR 292.) As a result of his condition, he stays up late and wakes up late, and has
28 become less “active with friends.” (AR 289; 292.) He has no problems with personal care, takes
14

1 care of his two pet fish, and cleans his room. (AR 289-90.) He needs reminders to take his
2 medication and to complete his chores. (AR 290.) When he goes shopping, two or three times a
3 month for “collectibles” and video games, he goes with his parents. (AR 290.)
4

Plaintiff stated that he experiences problems with memory, completing tasks,

5 concentration, following instructions, using hands, and getting along with others, and he can
6 follow written instructions very well but has trouble with verbal instructions. (AR 293.) Plaintiff
7 blames “stress” and “anxiety” as the biggest obstacles that keep him “from going to school,
8 getting a job, driving or shopping.” (AR 295.)
9
10

2.

Section 10 Statement and Plaintiff’s Father’s Letter

Plaintiff stated that his “anxiety and other mental health conditions” prevented him from

11 completing high school, the adult education classes he needed to earn a high school diploma, the
12 Clovis Youth Employment Program he started, the California State Department of Rehabilitation
13 Program he started, the driver’s education class he started, and the Goodwill program he tried to
14 attend, and also prevented him from taking the bus, making phone calls, looking for work, holding
15 a job, or taking the GED. (AR 299.)
16

In a March 8, 2011, letter accompanying the Section 10 statement, Plaintiff’s father stated

17 that Plaintiff’s “life is defined by anxiety and his other psychiatric conditions such as emotional
18 instability and depression” since age four. (AR 300.) He stated that “[b]y the time [Plaintiff] got
19 to junior high he began to miss considerable amounts of school due to anxiety related problems.
20 High School became unbearable and he attempted suicide at the beginning of his senior year. [He]
21 was only able to attend school sporadically during the first semester of his senior year and then
22 had to withdraw before he could graduate.” (AR 300.) All of Plaintiff’s attempts to complete his
23 education, obtain a driver’s license, work at Goodwill, or volunteer as a teacher’s aide have ended
24 abruptly because of his anxiety. (AR 300.)
25 D.

Hearing Testimony

26

1.

27

Plaintiff testified at his July 19, 2012 hearing that he completed his junior year of high

Plaintiff’s Testimony

28 school, and has attempted but not been able to complete a diploma or GED. (AR 41.) During
15

1 school, he largely attended “regular” classes but was pulled out for special “RSP” instruction in
2 math and English, and also had individual tutoring two hours a week. (AR 42-43.) He dropped
3 out with two months left of high school because “the stress and anxiety got to [him].” (AR 43.)
4

A
Well, like, I just couldn’t do anything. And like it just stopped me from
doing stuff, like normal stuff like going to classes and everything.

5

A
. . . [And], the GED, I couldn’t even get out of the truck, my dad’s truck
when I tried going into the building. We had gone in when we, like first went to
meet the teacher. And then the second time to do the class work or do whatever
they wanted, like the math or whatever they wanted me to do. I couldn’t get out
of my dad’s truck, I was just too nervous.

6
7
8
9

Q

What would happen when you tried to get out [of] your dad’s truck?

10

A
I didn’t even get out. I would – he was trying to pull me out, like trying to
say it’s not going to be that bad but, you know, I just always think it’s going to be
worse than it ever is.

11

Q

Did they ever try to give you the work to take home to do?

12

A

Yeah. I had a private tutor and the same thing kind of happened.

13

Q

What do you mean same thing kind of happened?

14

A
I couldn’t go – like we were meeting at the library and I didn’t go in the
library because I was too nervous.

15

Q

What if they had had you work at home with the tutor?

16

A

We tried that too.

17

Q

And what happened?

18
19

A
Same thing. Like I did a little but then like the same day I just, it just got
like – I don’t know how to put it into words, like I just stopped and then I kind of
like got into a mental break down, just like I shut down, like I couldn’t do
anything.

20 (AR 43-44.)
21

Plaintiff does not have a driver’s license and is unable to drive because he is “afraid” he

22 will “hit something.” (AR 41.) He cannot take the bus because there are “[t]oo many people”
23 riding it, so he relies on his father for transportation. (AR 41.) Plaintiff worked with one other
24 person, his supervisor, doing “custodial things, like mop[ping], sweeping the ground and picking
25 up trash” for ten hours a day, four days a week, at a school during summer vacation in 2008. (AR
26 45-48.) The job was a one-month term, but Plaintiff was forced to leave early due to his anxiety.
27 (AR 46-47.) Plaintiff also worked at a storage facility for the school district, lifting boxes and
28 sweeping floors for three hours a day, three days a week, with two supervisors and one other
16

1 student. (AR 48-51.) He made it through the entire month of this job, but “skipped many, many
2 days” due to his anxiety. (AR 50.)
3

Plaintiff went to “State Rehab” to test for employment, but was unable to answer or pick

4 up a phone without anxiety and was told “well, if you can’t even pick up the phone, you know,
5 you’re not going to be good in a workplace.” (AR 51.) He also worked at a Goodwill for one day,
6 helping people with computers. (AR 52.) He does not feel confident enough to work by himself
7 on computers or watching security cameras, “[b]ecause [he’s] afraid [he]’d mess up a lot.”
8 (AR 53.)
9

Plaintiff testified that he feels anxious and depressed every day, and he is unable to

10 complete tasks and “freezes up.” (AR 54.) Plaintiff “shuts down” or “freezes up” more than once
11 a day, and experiences mood swings and irregular sleep patterns. (AR 55-56.) When he “shuts
12 down,” Plaintiff will “just get stiff and hold a chair . . . and shake or something.” (AR 54.) The
13 episode will continue until he “decide[s] to go to [his] room and just like lay down” for two hours
14 or so. He has experienced suicidal thoughts “only like three times . . . when [he] was really
15 depressed.” (AR 56-57.) He has been hospitalized two or three times for suicidal thoughts. (AR
16 57.) Plaintiff takes medications for his impairments, but doesn’t note much improvement when
17 medicated. (AR 57 (“I really don’t see a difference like of helping me. But my parents sometimes
18 say they do, so I just believe them.”).)
19

Plaintiff has not “done anything fun in a long time[,]” and spends a good deal of his time

20 “just sleeping.” (AR 58.) He also plays video games for two or three hours at a time, with breaks,
21 and watches television. (AR 59.) He has an apartment to himself, but only stays there once or
22 twice a week, and spends the rest of his time at his parents’ house. (AR 60.) He showers
23 “whenever [he] feel[s] like it[,]” but has never received complaints on his hygiene. (AR 58.) He
24 has friends over “[u]sually every other weekend” to play video games for two hours on a split
25 screen. (AR 62.) He generally does not help clean or cook around the house, and does not do his
26 own laundry, because “it’s just overwhelming,” but can take out the trash. (AR 59; 61; 65.) He
27 finds himself “stressed over like little simple things[,]” even feeling overwhelmed sometimes by
28
17

1 the simple act of putting dirty laundry into the washing machine or by a machine with only two
2 dials. (AR 63-64; 65.)
Vocational Expert’s Testimony

3

2.

4

The ALJ presented a hypothetical person “who is less than 50 years of age, with an 11th

5 grade education, who would be limited to unskilled jobs that require no more than occasional
6 public contact at any exertional levels” to the Vocational Expert (“VE”). (AR 66.) Based on this
7 hypothetical, the VE testified that such a hypothetical person could perform heavy and unskilled
8 work, as a “commercial or institutional cleaner,” a termite extermination helper, or a truck driver
9 helper loading and unloading trucks. (AR 66-67.)
10

Plaintiff’s attorney asked the VE a follow-up hypothetical, using “all of the same elements

11 in the first hypothetical,” with the additional limitation that this hypothetical “individual would
12 miss approximately two to four days per month due to psychological/physical symptoms[.]”
13 (AR 68.) Based on this hypothetical, the VE testified that such a person would not be able to find
14 any work. (AR 68.) Plaintiff’s attorney then presented a third hypothetical to the VE, using “all
15 the same elements in the first hypothetical,” with the additional limitation that this hypothetical
16 “individual could not interact with any coworkers or the public, and only occasionally interact
17 with the supervisor[.]” (AR 68.) Based on this hypothetical, the VE testified that such a person
18 would not be able to find any work. (AR 68-69.) Plaintiff’s attorney asked the VE a final, fourth
19 hypothetical, where “the individual had to be supervised constantly throughout the shift[.]” (AR
20 69.) The VE testified that such a person would not be able to find any work. (AR 69.)
21 C.

Administrative Proceedings

22

On November 27, 2012, the ALJ issued a decision and determined Plaintiff was not

23 disabled. (AR 12-24.) The ALJ found that Plaintiff had one severe impairment: an anxiety
24 disorder. (AR 15.) The ALJ determined that this impairment did not meet or equal a listed
25 impairment. (AR 15.) The ALJ found Plaintiff retained the residual functional capacity (“RFC”)
26 to “perform a full range of work at all exertional levels but with the following non-exertional
27 limitations: he would be limited to unskilled work with only occasional public contact.” (AR 16.)
28 Given this RFC, the ALJ found Plaintiff was capable of “perform[ing] the requirements of
18

1 representative occupations such as Commercial Cleaner/Janitor (DOT #381.687-014), a Termite
2 Exterminator Helper (DOT #383.687-010) or as a Truck Driver Helper/Loader (DOT #905.6873 010). (AR 23.) The ALJ concluded that Plaintiff was not under disability, as defined in the Social
4 Security Act, from March 19, 2010, the alleged onset date, through December 31, 2009, the date
5 last insured. (AR 24.)
6 D.

Plaintiff’s Complaint

7

On December 11, 2013, Plaintiff filed a complaint before this Court seeking review of the

8 ALJ’s decision. (Doc. 1.) Plaintiff argues that the ALJ failed to articulate specific and legitimate
9 reasons for rejecting Dr. House’s opinions in determining Plaintiff’s RFC and finding Plaintiff
10 was not disabled from the alleged onset date through the last date insured. (Docs. 14, 11-16; 19,
11 3-4.)
12
13

III.

SCOPE OF REVIEW

The Commissioner’s decision that a claimant is not disabled will be upheld by a district

14 court if the findings of fact are supported by substantial evidence in the record and the proper legal
15 standards were applied. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007);
16 Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v.
17 Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Davis v. Heckler, 868 F.2d
18 323, 325 (9th Cir. 1989); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Tidwell v. Apfel,
19 161 F.3d 599, 601 (9th Cir. 1999); Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985) (the
20 findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive.)
21 Substantial evidence is more than a mere scintilla, but less than a preponderance. Ryan v. Comm’r
22 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Saelee v. Chater, 94 F.3d 520, 521 (9th Cir.
23 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a
24 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
25 N.L.R.B., 305 U.S. 197, 229 (1938)). “While inferences from the record can constitute substantial
26 evidence, only those ‘reasonably drawn from the record’ will suffice.” Widmark v. Barnhart, 454
27 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted); see also Desrosiers v. Sec’y of Health and
28 Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988) (the Court must review the record as a whole,
19

1 “weighing both the evidence that supports and the evidence that detracts from the
2 [Commissioner’s] conclusion.”) The Court “must consider the entire record as a whole, weighing
3 both the evidence that supports and the evidence that detracts from the Commissioner’s
4 conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.”
5 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks
6 omitted).
7

The role of the Court is not to substitute its discretion in the place of the ALJ – “[t]he ALJ

8 is responsible for determining credibility, resolving conflicts in medical testimony, and resolving
9 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted);
10 Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). “Where the evidence is susceptible to more
11 than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion
12 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Andrews v. Shalala, 53
13 F.3d 1035, 1041 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (the
14 court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ
15 on a ground upon which he did not rely.”); Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir.
16 1987) (if substantial evidence supports the administrative findings, or if there is conflicting
17 evidence supporting a particular finding, the finding of the Commissioner is conclusive). The
18 court will not reverse the Commissioner’s decision if it is based on harmless error, which exists
19 only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the ultimate
20 nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)
21 (quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400
22 F.3d 676, 679 (9th Cir. 2005).
23
24

IV.

APPLICABLE LAW

An individual is considered disabled for purposes of disability benefits if he is unable to

25 engage in any substantial, gainful activity by reason of any medically determinable physical or
26 mental impairment that can be expected to result in death or that has lasted, or can be expected to
27 last, for a continuous period of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A),

28 1382c(a)(3) (A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or
20

1 impairments must result from anatomical, physiological, or psychological abnormalities that are
2 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of
3 such severity that the claimant is not only unable to do his previous work, but cannot, considering
4 his age, education, and work experience, engage in any other kind of substantial, gainful work that
5 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
6

The regulations provide that the ALJ must undertake a specific five-step sequential

7 analysis in the process of evaluating a disability. In Step 1, the ALJ must determine whether the
8 claimant is currently engaged in substantial gainful activity.
9 416.920(b).

20 C.F.R. §§ 404.1520(b),

If not, the ALJ must determine at Step 2 whether the claimant has a severe

10 impairment or a combination of impairments significantly limiting her from performing basic
11 work activities. Id. §§ 404.1520(c), 416.920(c). If so, the ALJ moves to Step 3 and determines
12 whether the claimant has a severe impairment or combination of impairments that meet or equal
13 the requirements of the Listing of Impairments (“Listing”), 20 § 404, Subpart P, App. 1, and is
14 therefore presumptively disabled. Id. §§ 404.1520(d), 416.920(d). If not, at Step 4 the ALJ must
15 determine whether the claimant has sufficient RFC despite the impairment or various limitations
16 to perform her past work. Id. §§ 404.1520(f), 416.920(f). If not, at Step 5, the burden shifts to the
17 Commissioner to show that the claimant can perform other work that exists in significant numbers
18 in the national economy. Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or
19 not disabled at any step in the sequence, there is no need to consider subsequent steps. Tackett v.
20 Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920.
21

V.

DISCUSSION

22 A.

The ALJ’s Consideration of the Medical Evidence

23

Plaintiff argues that the ALJ improperly discredited portions of treating physician

24 Dr. House’s opinion. The Commissioner contends the ALJ properly considered the medical
25 evidence and found Plaintiff not disabled.
26

1.

27

Cases in this circuit distinguish among the opinions of three types of physicians: (1) those

Legal Standard

28 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant
21

1 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining
2 physicians). As a general rule, the opinion of a treating doctor is entitled to more weight than the
3 opinion of doctors who did not treat the claimant, Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.
4 1987), and absent contradiction by another doctor’s opinion, may be rejected only for “clear and
5 convincing” reasons, Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). Even if directly
6 contradicted by another doctor’s opinion, the ALJ must articulate “specific and legitimate reasons”
7 that are supported by substantial evidence in the record, to justify rejecting the treating doctor’s
8 opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).
9
10

2.

The ALJ Improperly Discounted Portions of Dr. House’s Opinion

Plaintiff contends the ALJ improperly rejected Dr. House’s opinion of Plaintiff’s “extreme

11 limitations” as internally inconsistent with his opined GAF score. (Doc. 14, 13; see AR 21.)
12 Plaintiff argues that the Commissioner has unambiguously stated that the GAF score “does not
13 have a direct correlation to the severity requirements in [the] mental disorders listings” and is an
14 illegitimate reason to reject Dr. House’s opinion. (Doc. 14, 13 (quoting Revised Medical Criteria
15 for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50764-65 (Aug.
16 21, 2000).) Plaintiff further argues that the ALJ improperly based his decision on his “biased”
17 opinion that anyone with limitations as extreme as those opined to by Dr. House “would likely be
18 institutionalized[.]” (Doc. 14, 13-14; see AR 21.) Finally, Plaintiff argues that Dr. House’s
19 opined mental RFC is consistent with the overall medical record. (Doc. 14, 14.)
20

The Commissioner contends the ALJ properly discounted Dr. House’s opinion as

21 inconsistent internally and with the overall medical record, and the ALJ’s statement that a person
22 with such extreme limitations as those assessed by Dr. House might require institutionalization
23 does not constitute impermissible “personal bias.” (Doc. 18, 10-11.)
24

Plaintiff was seen by Dr. House on at least seven occasions from December 2011 through

25 June 2012. (AR 501-04; 506-10; 573-74.) On December 15, 2011, Dr. House noted diagnoses of
26 “episodic mood disorders” and “Autistic disorder” (AR 510), noted increased anxiety, irritability,
27 and erratic sleep in March of 2012 (AR 507), increased anxiety in May of 2012 (AR 574), and
28 continued Plaintiff’s prescriptions for Paxil and Xanax – anti-anxiety medications – throughout
22

1 their treating relationship. (AR 501-04; 506-10; 573-74.) Dr. House completed a mental RFC
2 assessment questionnaire on April 24, 2012, opining to the extreme limitations imposed by
3 Plaintiff’s mental impairments. (AR 501-04.) Dr. House assigned Plaintiff a “current” GAF score
4 of 55 in his mental RFC assessment and opined that Plaintiff was at least “seriously limited” or
5 “unable to meet competitive standards in every single assessed category of work ability. (AR 5016 04.) Dr. House further opined that Plaintiff was so limited as to have “no useful ability” to deal
7 with normal work stress, sustain an ordinary routine without special supervision, complete a
8 normal workday and workweek without interruptions from his psychologically based problems, or
9 work in coordination with or proximity to others. (AR 501-04.) Finally, Dr. House opined that
10 Plaintiff would miss more than four days of work each month due to his mental impairments.
11 (AR 504.)
12

The ALJ gave “less weight” to treating physician Dr. House’s opinion of Plaintiff’s

13 limitations “than it may otherwise merit” because it was “completely inconsistent with [ ] a GAF
14 score of 55[.]” (AR 21.) The ALJ cited no specific medical evidence contradicting Dr. House’s
15 findings, but instead generally discounted the full extent of limitations opined by Dr. House as
16 unsupported by the GAF score, “which represents someone with only moderate symptoms or
17 difficulty functioning” and not someone “having such extreme limitations as assessed by Dr.
18 House.” (AR 21.)
19

ALJs “may only reject a treating or examining physician’s uncontradicted medical opinion

20 based on ‘clear and convincing’ reasons.’” Carmickle v. Commissioner, 533 F.3d 1155, 1164 (9th
21 Cir. 2008) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). When rejecting the
22 opinion of a treating physician, the ALJ can meet this “‘burden by setting out a detailed and
23 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof,
24 and making findings.’” Tommasetti, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Magallanes,
25 881 F.2d at 751). Treating source medical opinions are entitled to deference and, “[i]n many
26 cases, will be entitled to the greatest weight and should be adopted, even if [they do] not meet the
27 test for controlling weight.” Orn, 495 F.3d at 632.
28

Here, the ALJ specifically relied on the GAF score of 55 that Dr. House assigned Plaintiff
23

1 on April 24, 2012, as being internally inconsistent with the rest of Dr. House’s mental RFC
2 assessment.

GAF scores are “rough estimates of an individual’s psychological, social, and

3 occupational functioning used to reflect the individual’s need for treatment.” Vargas v. Lambert,
4 159 F.3d 1161, 1164 n.2 (9th Cir. 1998).

In arriving at a GAF Score, clinicians consider

5 psychological, social, and occupational functioning on a hypothetical continuum of mental health
6 illness. Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), at 34. The GAF
7 definition of range 51-60 indicates “moderate symptoms” or “moderate difficulty” in social,
8 occupational or school functioning. DSM-IV at 32.
9

“As a global reference intended to aid in treatment, ‘a GAF score does not itself

10 necessarily reveal a particular type of limitation and is not an assessment of a claimant’s ability to
11 work.’” Garcia v. Astrue, 170 Soc. Sec. Rep. Serv. 686, 2011 WL 4479843 at *4 (E.D. Cal. 2011)
12 (quoting Stokes v. Astrue, 2009 WL 2216785 at *7 (M.D. Fla. 2009)). In practice, “‘GAF scores
13 are of very limited usefulness due to their failure to translate into concrete functional limitations.’”
14 Id. (quoting Stokes, 2009 WL 2216785 at *7). See 65 Fed. Reg. 50764-65 (“The GAF scale . . .
15 does not have a direct correlation to the severity requirements in our mental disorders listings.”).
16

GAF scores are unreliable indicators of a claimant’s ability to perform sustained work, as

17 they are “merely a snapshot in time” that may or may not be supported by the overall medical
18 record.

Mann v. Astrue, 2009 WL 2246350 at *2 (C.D. Cal. 2009); see also SSR 85-15

19 (“Individuals with mental disorders” may adopt “a highly restricted . . . lifestyle within which they
20 appear to function well,” but “may cease to function effectively when facing such demands as
21 getting to work regularly, having their performance supervised, and remaining in the workplace
22 for a full day.”). Further, while a GAF score can tell the ALJ something in a very general way
23 about a plaintiff’s ability to perform basic work activities, the specific score does not address
24 which particular aspect(s) of functioning is being addressed. Therefore, it can be difficult to
25 ascertain whether GAF scores are meant to score a plaintiff’s occupational functioning – ability to
26 work – rather than perhaps addressing a plaintiff’s overall symptoms or social functioning. See,
27 e.g., Ackermann-Papp v. Comm’r of Soc. Sec., 127 Soc. Sec. Rep. Serv. 1163, 2008 WL 314682 at
28 *3 (W.D. Mich. 2008); Bronson v. Astrue, 530 F. Supp. 2d 1172, 1180-81 (D. Kan. 2008) (noting
24

1 GAF scores “are in a continuum” and “include[ ] all problems affecting a patient”). “GAF scores
2 do not dispositively assess a plaintiff’s ability to work.” Garcia, 2011 WL 4479843 at *4.
3

The ALJ gave little weight to Dr. House’s opinion because it “is completely inconsistent

4 with someone with a GAF score of 55, which represents someone with only moderate symptoms
5 or difficulty functioning[.]” (AR 21.) Though the ALJ was permitted to consider the GAF score
6 in his reasoning, see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001), he was not permitted
7 to “rely on [the GAF] score alone. No single piece of information taken in isolation can establish
8 whether [a claimant has] a ‘marked’ or ‘extreme’ limitation in a domain.”

20 CFR

9 § 416.926a(e)(4)(i). Moreover, the ALJ failed to explain why the GAF score – which does not
10 dispositively assess Plaintiff’s ability to work – superseded Dr. House’s more precise opinions as
11 to Plaintiff’s ability to function in a work-related setting.
12

While an ALJ may reject a physician’s opinion as unsupported or inconsistent with his

13 own examination findings, see Tomassetti, 533 F.3d at 1041, a single GAF score of 55 does not
14 constitute substantial evidence in light of the record as whole. The Commissioner acknowledges
15 “that there will be inconsistencies between a claimant’s GAF scores and an assessment of a
16 claimant’s ability to do work; thus, it was error in this case to use this data, provided by [Dr.
17 House], as a general assessment to disprove [Dr. House]’s more detailed, expert functional
18 assessment.” Provencio v. Astrue, 179 Soc. Sec. Rep. Serv. 558, 2012 WL 2344072 at *8 (D.
19 Ariz. 2012); see 65 Fed. Reg. 50764 (cautioning that the GAF scale does not have a direct
20 correlation to the severity requirements in the Agency’s mental disorder listings).
21

When the record is viewed as a whole, it is apparent that while Plaintiff has adopted “a

22 highly restricted . . . lifestyle within which [he] appear[s] to function well,” see SSR 85-15, his
23 ability to function under any sort of pressure is severely impacted by his crippling anxiety
24 (see, e.g., AR 42-43 (unable to attend GED classes due to anxiety), 46-47 (unable to complete
25 summer job due to anxiety), 48-50 (forced to skip “many, many days” at another summer job), 51
26 (unable to make phone calls due to anxiety), 267 (educational notes on Plaintiff’s “anxious
27 reactions” to stress including “shakiness, stammered speech, and memory loss”)). The moderate
28 GAF score Dr. House assigned to Plaintiff on a single day in 2012 appears largely to reflect
25

1 Plaintiff’s ability to retain his composure during an evaluation with a longstanding treating
2 physician; when read in the context of the overall medical record, the score is not indicative of
3 Plaintiff’s overall ability “to function effectively when facing such demands as getting to work
4 regularly, having [his] performance supervised, and remaining in the workplace for a full day.”
5 See SSR 85-15.
6

The ALJ also erroneously rejected Dr. House’s opinion, in part, because “[a] person with

7 such extreme limitations [as those opined to by Dr. House] would likely be institutionalized and
8 unable to function at all and certainly would not be able to continue with their education right up
9 until shortly prior to graduation.” (AR 21.) The ALJ did not point to any medical evidence to
10 support his opinion. (See AR 21.) Though the ALJ may rely, in part, on his own observations,
11 they cannot be used as a substitute for medical diagnosis. See Marcia v. Sullivan, 900 F.2d 172,
12 177 n.6 (9th Cir. 1990). An ALJ may not substitute his own layperson opinion for that of trained
13 medical physicians, and “‘must not succumb to the temptation to play doctor and make h[is] own
14 independent medical findings.’” Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006)
15 (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)); see Garcia, 2011 WL 4479843 at *9
16 (same). See also Ferguson v. Schweiker, 765 F.2d 31, 37 (3rd Cir. 1985) (ALJ may not “set his
17 own expertise against that of a physician who presents competent evidence”).
18

Here, the ALJ predicated his rejection of Dr. House’s medical opinion, in part, on his own

19 layperson opinion about how “such extreme limitations” as those opined to by Dr. House “would
20 likely” have rendered Plaintiff “institutionalized” and cannot be an accurate reflection of
21 Plaintiff’s true limitations. (AR 21.) The ALJ’s layperson speculation on the reasonableness of
22 Dr. House’s opinion is not a legally sufficient reason to discount that opinion. Marcia, 900 F.2d at
23 177 n.6. Accordingly, the ALJ erred in rejecting Dr. House’s opinion.
24 B.

Remand for Award of Benefits is Appropriate

25

The Court has discretion to remand a case for further evidence or to award benefits.

26 42 U.S.C. § 405(g) (“[t]he court shall have power to enter, upon the pleadings and transcript of the
27 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
28 Security, with or without remanding the cause for a rehearing.”). “Where the Commissioner fails
26

1 to provide adequate reasons for rejecting the opinion of a treating or examining physician, [the
2 Court] credit[s] that opinion ‘as a matter of law.’” Lester, 81 F.3d. at 834 (quoting Hammock v.
3 Bowen, 879 F.2d 498, 502 (9th Cir. 1989)). Evidence should be credited and an immediate award
4 directed where (1) the ALJ failed to provide legally sufficient reasons for rejecting such evidence,
5 (2) there are no outstanding issues that must be resolved before a determination of disability can
6 be made, and (3) it is clear from the record that the ALJ would be required to find the claimant
7 disabled were such evidence credited. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
8 (quoting Smolen, 80 F.3d at 1292). If this test is satisfied, then remand for a finding of disability
9 is warranted, regardless of whether the ALJ might have articulated a different justification for
10 rejecting opinion evidence. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); see also
11 Varney, 859 F.2d at 1399 (9th Cir. 1988) (“Generally, we direct the award of benefits in cases
12 where no useful purpose would be served by further administrative proceedings, or where the
13 record has been thoroughly developed.” (citation omitted)).
14

“[A]pplying the [credit-as-true] rule is not mandatory when, even if the evidence at issue

15 is credited, there are ‘outstanding issues that must be resolved before a proper disability
16 determination can be made.’” Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010) (quoting
17 Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). The Commissioner argues that even if Dr.
18 House’s opinion were fully credited, remand for an award of benefits is not warranted because “it
19 is not clear that Dr. House’s opinion stands for the proposition that Plaintiff is disabled under the
20 regulations, and crediting the doctor’s opinion would not necessarily result in a finding of
21 disability.” (Doc. 18, 14.) The Commissioner further contends that a remand for an award of
22 benefits is not warranted because there are outstanding issues to be resolved, noting that “[t]he
23 ALJ pointed to Plaintiff’s established range of daily activities and successful school records, as
24 well as examinations yielding good results and the absence of objective evidence establishing
25 disabling limitations, in support of his finding that Plaintiff’s symptoms were not as disabling as
26 alleged[.]” (Doc. 18, 14.)
27

The ALJ pointed to Plaintiff’s history as a “good student” at Clovis West High School, and

28 his activities of daily living, including “independently caring for his own personal hygiene[,]
27

1 performing light household chores, such as cleaning his room[,] watching television[,] playing
2 video games[,] and socializing with friends” as evidence that Plaintiff is not disabled. (AR 22.)
3 However, the fact that Plaintiff is liked by teachers, has friends, and is capable of occasional focus
4 or concentration in an unpressured setting does not discredit his claim that he is crippled by
5 anxiety, nor does it indicate that Plaintiff is able to spend a substantial part of his day engaged in
6 pursuits involving the performance of physical functions or skills that are transferable to a work
7 setting. See, e.g., Orn, 495 F.3d at 639; Burch, 400 F.2d at 681; Fair, 885 F.2d at 603. A review
8 of the record establishes that Plaintiff’s anxiety is more than a slight abnormality with a minimal
9 effect on Plaintiff’s ability to work – Plaintiff’s anxiety is a persistent and serious condition which
10 Plaintiff’s treating physicians believed was both severe and disabling.
11

Plaintiff’s record indicates a history of serious problems and significant limitations

12 stemming from his anxiety. The record reveals multiple mental health 5150 and 5585 holds and
13 suicide attempts. (See AR 332; 339; 455-69.) Plaintiff’s teachers repeatedly noted Plaintiff’s
14 “anxious reactions” and “apprehension,” and described Plaintiff as becoming “visibly anxious”
15 when under pressure to perform.

(AR 267 (noting Plaintiff exhibits “shakiness, stammered

16 speech, and memory loss.”).) Though he was fairly liked by teachers and described as agreeable
17 and “responsible,” almost every teacher expressed concern that Plaintiff’s frequent absences
18 would result in his failing out of school. (AR 240-59 (in September 2009, Plaintiff had “32
19 periods of excused absences, 4 periods of doctor’s absences, and 6 excused tardies during the first
20 six weeks of school.”).)
21

Plaintiff was unable to complete high school because “the stress and anxiety got to him”

22 and unable to even attend the GED program because of his crippling anxiety. (See AR 42-43
23 (describing how he was unable to exit his father’s truck to attend the first day of GED classes or
24 enter the library for tutoring sessions because he was overwhelmed by anxiety).) Plaintiff left a
25 one-month summer job early due to his anxiety (AR 46-47), and though he made it through
26 another one-month summer job, he “skipped many, many days” due to his anxiety (AR 48-50.)
27 Plaintiff went to “State Rehab” for help with employment, but could not use a phone to make calls
28 due to the severity of his anxiety. (AR 51.)
28

1

Including Dr. House, three separate treating physicians opined that Plaintiff would be

2 forced to miss more than four days a month of work due to his mental impairments. (AR 431;
3 479; 504.) Another treating physician echoed Dr. House and Plaintiff’s teachers, opining that
4 Plaintiff’ anxiety “makes him non-functional” and he “rapidly deteriorates under any type of work
5 demand, performance expectation, or pressure to complete tasks.”

(AR 478; 488.)

Even

6 consulting examiner Dr. Glidden, who was conservative in his assessment of Plaintiff’s mental
7 limitations, opined that “[b]ecause of the severe social phobia experienced, [Plaintiff] is at a
8 significantly reduced capacity to function in a work setting[.]” (AR 523.) Even if Plaintiff has
9 friends, is well-liked by teachers, and is of average or above-average intelligence in some areas,
10 when the record is reviewed as a whole, it is clear that Plaintiff’s ability to consistently perform in
11 a full-time work-related setting is severely restricted by his crippling anxiety.
12

Here, the Smolen test for award of benefits on remand is met. 80 F.3d at 1292. In

13 rejecting Dr. House’s opinion on the basis of a single GAF score and relying on his own layperson
14 opinion of the severity of the limitations opined to by Dr. House, the ALJ failed to provide legally
15 sufficient reasons for rejecting Dr. House’s medical opinion. Contrary to the Commissioner’s
16 assertion, there are no outstanding issues to be resolved before determining that Plaintiff is
17 disabled. See Harman, 211 F.3d at 1178-79 (the fact that the ALJ might have articulated another
18 justification for rejecting the physician’s opinion does not create an outstanding issue precluding
19 remand for determination and payment of benefits).
20

Finally, were Dr. House’s opinion fully credited, the record reveals that the ALJ would be

21 required to find him disabled. When Plaintiff’s attorney amended the hypothetical question to the
22 VE at the hearing to reflect Plaintiff’s limitations as opined to by Dr. House, the VE indicated that
23 such an individual would not be able to perform any of the jobs the expert had previously
24 specified in response to the ALJ’s hypothetical. (AR 68-69 (the VE testified that a hypothetical
25 person who would miss four days of work per month due to his psychological symptoms, could
26 not work with any coworkers or the public and could only occasionally interact with his
27 supervisor, and must be supervised constantly throughout his shift would not able to work); see
28 also AR 501-04.) Thus, if Dr. House’s opinion as to Plaintiff’s limitations were credited-as-true,
29

1 the VE’s testimony would establish that Plaintiff is unable to work. See Varney v. Sec. of Health
2 and Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988); Gallant v. Heckler, 753 F.2d 1450,
3 1457 (9th Cir. 1984).
4

“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we

5 win; tails, let’s play again’ system of disability benefits adjudication.” Benecke, 379 F.3d at 595.
6 “Remanding a disability claim for further proceedings can delay much needed income for
7 claimants who are unable to work and are entitled to benefits, often subjecting them to
8 ‘tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on
9 remand.’” Id. Because the improperly discredited evidence of Dr. House’s opinion establishes
10 disability when properly credited, Defendant should not be given endless opportunities to correct
11 her mistakes while Plaintiff waits for an error-free decision. See Hammock v. Bowen, 879 F.2d
12 498, 503 (9th Cir. 1989). The record is fully developed and, considering the evidence that the ALJ
13 improperly discredited, a finding of disability is required.
14

In sum, substantial evidence does not support the Commissioner’s decision. The Court

15 reverses the Commissioner’s decision and remands this case for a determination of benefits.
16
17

VI.

CONCLUSION

Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

18 substantial evidence and is, therefore, REVERSED and the case REMANDED to the ALJ for an
19 award of benefits. The Clerk of this Court is DIRECTED to enter judgment in favor of Plaintiff
20 Max Sheldon Margulis and against Defendant Carolyn W. Colvin, Acting Commissioner of Social
21 Security.
22
23
24

IT IS SO ORDERED.
Dated:

March 6, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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