Thomas v. Commissioner of Social Security

Filing 16

ORDER on Plaintiff's Social Security Complaint signed by Magistrate Judge Sheila K. Oberto on 9/21/2018. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY EUGENE THOMAS,

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Case No. 1:17–cv–01512–SKO

Plaintiff,

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v.

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ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

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(Doc. 1)

Defendant.

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_____________________________________/

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I.

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INTRODUCTION

On November 9, 2017, Plaintiff Rodney Eugene Thomas (“Plaintiff”) filed a complaint under

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20 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner
21 of Social Security (the “Commissioner” or “Defendant”) denying his application for Supplemental
22 Security Income (“SSI”) benefits under Title XVI of the Social Security Act (the “Act”). (Doc. 1.)
23 The matter is currently before the Court on the parties’ briefs, which were submitted, without oral
24 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1
II.

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BACKGROUND

On October 23, 2014, Plaintiff protectively filed an application for SSI. (Administrative

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27 Record (“AR”) 149–57.) Plaintiff alleges that he became disabled on January 1, 2000, due to back
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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 9.)

1 and leg problems, pain in his arms and elbows, anxiety and depression. (AR 22, 28, 37, 43, 47, 55–
2 56, 61, 77.) Plaintiff subsequently amended his alleged onset date of disability to October 23, 2014,
3 the date he protectively filed his application for SSI. (AR 21, 73.)
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Plaintiff was born on June 4, 1959, and was 55 years old when he filed the application. (AR

5 81, 149.) He has a high school education, having obtained a GED while in prison. (AR 81, 247.)
6 A.

Relevant Medical Evidence2

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1.

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On December 15, 2014, Dr. Abalos, who had treated Plaintiff since December 9, 2014,

Treating Physician Arturo Abalos, M.D.

9 completed a “Residual Functional Capacity [“RFC”]3 Questionnaire.” (AR 254–56.) Dr. Abalos
10 reported Plaintiff’s diagnosis of chronic low back pain. (AR 254.) Dr. Abalos found that Plaintiff’s
11 pain was severe enough to frequently interfere with the attention and concentration required to
12 perform simple work-related tasks. (AR 254.) He opined that Plaintiff could sit for 60 minutes at
13 one time and could stand and walk for 30 minutes at one time. (AR 254.) Although Dr. Abalos
14 opined that Plaintiff would require unscheduled breaks during the workday, he did not specify how
15 many. (AR 254.) He found that Plaintiff could frequently lift 10 pounds, occasionally lift 20
16 pounds, and never lift 50 pounds. (AR 255.) Plaintiff had no limitations in repetitive reaching,
17 handling, or fingering. (AR 255.) Dr. Abalos estimated, “based upon [his] experience with
18 [Plaintiff], and based upon objective medical, clinical, and laboratory findings,” that Plaintiff was
19 likely to be absent from work once or twice a month because of his impairments. (AR 255.)
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2.

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On January 31, 2015, psychologist Dr. Nikkel performed a comprehensive psychiatric

Consultative Examiner Nancy Nikkel, Ph.D.

22 examination of Plaintiff. (AR 245–50.) She observed Plaintiff to be appropriately dressed and
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As Plaintiff’s assertions of error are limited to the ALJ’s discrediting of the medical opinion of Nancy Nikkel, Ph.D,,
the ALJ’s alleged improper formulation of Plaintiff’s mental RFC, and the application of that RFC at the fifth step of
the sequential evaluation process, only evidence relevant to those arguments is set forth in this Order.
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RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES
II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling
(“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that
result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining
a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay
evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable
impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
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1 neatly groomed. (AR 245.) His attitude was appropriate throughout the interview. (AR 245.)
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Plaintiff complained of “daily” and “severe” symptoms of depression and anxiety,

3 specifically that he “is not able to around crowds of people due to anger and fear” and feels like
4 “his life was wasted” after having been in prison and paroled in July 2014. (AR 245–46.) He
5 claimed depressed mood, anhedonia, weight changes, and sleep problems. (AR 246.) Plaintiff
6 reported that he saw a mental health provider while in prison for 5–6 months in the hopes it would
7 “provide him with the ability to cope once he [was] paroled,” but it did not. (AR 246.) He was not
8 prescribed psychiatric medications. (AR 246.)
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Plaintiff reported taking college-level courses for industrial arts, welding, and machine shop.

10 (AR 247.) He stated that since he has been paroled he tried to apply for jobs but he is “not able to
11 work the computer and has no job skills.” (AR 247.) Plaintiff lives in a group home and can clean
12 and take care of his personal hygiene. (AR 246–47.) He does not grocery shop or cook. (AR 247.)
13 He reports visiting his mother every day and watching television. (AR 247.)
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Upon mental examination, Dr. Nikkel found Plaintiff’s thought processes logical and goal

15 oriented. (AR 248.) Plaintiff denied psychotic symptoms and suicidal or homicidal ideation,
16 although his thought content included themes of hopelessness since he has been paroled. (AR 248.)
17 Plaintiff stated his mood was “sad,” and Dr. Nikkel found his affect congruent with his stated mood,
18 noting that he became tearful. (AR 248.) Plaintiff reported a decrease in appetite, stating that he
19 had lost 20 pounds since he was paroled. (AR 248.)
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Dr. Nikkel found Plaintiff’s immediate memory intact, although he encountered difficulty

21 reciting digits forward and backward. (AR 248.) Plaintiff’s recent memory was noted as fair, as
22 he could only recall two of three objects. (AR 248.) He could recall personal data such as his
23 mother’s date of birth and her maiden name. (AR 248.) Plaintiff’s fund of knowledge was within
24 normal limits. (AR 248.) He demonstrated the ability to perform simple mathematical calculations
25 correctly. (AR 249.) Dr. Nikkel found Plaintiff’s concentration to be within normal limits, his
26 abstract thinking concrete, and limited ability to differentiate. (AR 249.) Plaintiff’s judgment and
27 insight were fair and limited. (AR 249.) Dr. Nikkel assessed Plaintiff with adjustment disorder
28 with depressed and anxious mood and a Global Assessment of Functioning (“GAF”) score of 44.
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1 (AR 249.)
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According to Dr. Nikkel, Plaintiff’s symptoms “appear to be severe” yet treatable. (AR 249.)

3 The likelihood of recovery by Plaintiff was deemed to be poor. (AR 249.) Dr. Nikkel opined that
4 Plaintiff “has the ability to perform simple and repetitive tasks,” but “may have difficulty
5 performing detailed and complex tasks due to his difficulties with attention and short term
6 memory.” (AR 250.) Plaintiff was found to have a “fair ability to accept instructions from
7 supervisors and interact with coworkers and the public, as evidenced by his depressed and anxious
8 demeanor.” (AR 250.) Dr. Nikkel found Plaintiff is “not able to perform work activities on a
9 consistent basis without special or additional instruction, as evidenced by his difficulties with short
10 term memory and attention.” (AR 250.) While he has a “fair” ability to maintain regular attendance
11 in a workplace, he has a “poor” ability to complete a normal workday or workweek without
12 interruption from a psychiatric condition, “as evidenced by his depressive and anxiety symptoms.”
13 (AR 250.) According to Dr. Nikkel, Plaintiff is “not able to deal with the usual stress encountered
14 in a competitive workplace, due to the current severity of his symptoms and lack of sense of
15 efficacy.” (AR 250.)
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3.

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On October 28, 2015, Plaintiff underwent a general medical exam, which noted “depression”

Delano District Medical Center

18 and “anger.” (AR 289.) A psychiatric referral was recommended. (AR 290.)
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Plaintiff reported on January 18, 2016, that while working on his car he “picked up a rotor

20 which belongs to a wheel of a tire and felt a slight strain from his back.” (AR 287.) He complained
21 of sciatic pain radiating down to both legs. (AR 287.) He was assessed with chronic back pain and
22 provided Tylenol No. 3 for pain. (AR 287.)
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In May 2016, Plaintiff was assessed with anxiety. (AR 283, 285.) Plaintiff’s “history of

24 anxiety” was also noted on August 3, 2016. (AR 282.)
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4.

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On December 28, 2015, Plaintiff presented for depression and anxiety. He complained of

Omni Family Health

27 anxious/fearful thoughts, depressed mood, difficulty falling and staying asleep, diminished interest
28 or pleasure, excessive worry, and fatigue, but denied hallucinations or thoughts of death or suicide.
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1 (AR 259.) Plaintiff reported “moderate” anxiety symptoms, which are “chronic” and “poorly
2 controlled.” (AR 259.) He was assessed with “major depressive disorder, recurrent episode,
3 moderate” and anxiety, and was prescribed Remeron (mirtazapine), an antidepressant.4 (AR 260.)
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5.

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On February 12, 2015, a Disability Determinations Service non-examining consultant, H.

State Agency Physicians

6 Amado, M.D., reviewed the record and assessed Plaintiff’s mental RFC. (AR 47–50.) Dr. Amado
7 opined that Plaintiff’s ability to understand and remember detailed instructions was “moderately
8 limited,” but that he was “able to learn and retain simple instructions clearly explained.” (AR 48.)
9 Dr. Amado also found that Plaintiff was “moderately limited” in his ability to: carry out detailed
10 instructions; maintain attention and concentration for extended periods; perform activities within a
11 schedule, maintain regular attendance, and be punctual within customary tolerances; and complete
12 a normal workday and workweek without interruptions from psychologically based symptoms and
13 to perform at a consistent pace without an unreasonable number and length of rest periods. (AR
14 49.)
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Dr. Amado opined that Plaintiff would be able to implement simple instructions with

16 adequate persistence/pace past the initial training period. (AR 49.) Plaintiff’s ability to interact
17 with the general public, to accept instructions and respond appropriately to criticism from
18 supervisors, and to get along with coworkers or peers without distracting them or exhibiting
19 behavior extremes, were all “moderately limited,” with Dr. Amado opining that Plaintiff “would
20 fair best in a low-stress setting with no more than incidental contact with the general public and no
21 more than superficial interactions with prospective coworkers and supervisors.” (AR 49.) Dr.
22 Amado further found Plaintiff’s ability to respond appropriately to changes in the work setting to
23 be “moderately limited,” but that Plaintiff would be able to adapt to routine changes in the work
24 setting. (AR 50.) Dr. Amado concluded his mental RFC findings by explaining:
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The overall evidence shows that [Plaintiff] has a mental impairment
that limits his ability to sustain the performance of detailed or
complex tasks. However, he retained the [RFC] to understand,

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See “Mirtazapine,” MedlinePlus website, U.S. National Library of Medicine and National Institutes of Health,
available at https://medlineplus.gov/druginfo/meds/a697009.html (last visited August 16, 2018).

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remember, and carry out simple tasks. His concentration is
sufficient to allow him to complete such tasks at an acceptable pace.
He is able to interact superficially and instrumentally with
supervisors and coworkers but would have difficulty dealing with
the public more than incidentally in a service capacity. He can make
simple work-related decisions, adhere to basic safety rules, and
adjust to changes in routine in a typical non-public, unskilled setting.

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5 (AR 50.)
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On June 25, 2015, a Disability Determinations Service non-examining consultant, Cory A.

7 Brown, Psy.D., reviewed the record and analyzed the case on reconsideration. (AR 62–65.) Dr.
8 Brown adopted the initial decision RFC assessment, and further explained Plaintiff is capable of:
9 learning and remembering simple tasks, completing a work schedule with simple tasks; dealing
10 with supervisors and having minimal contact with coworkers and the public; and “adapting through
11 a work schedule with typical stress and simple changes.” (AR 63–65.)
12 B.

Administrative Proceedings

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The Commissioner denied Plaintiff’s application for benefits initially on February 24, 2015,

14 and again on reconsideration on July 2, 2015. (AR 89–92, 95–100.) Consequently, Plaintiff
15 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 101–07.)
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On March 1, 2017, Plaintiff appeared with counsel and testified before an ALJ as to his

17 alleged disabling conditions. (AR 23–33.) Plaintiff testified that he experienced depression and
18 anxiety and was prescribed “some medication to help [him] sleep.” (AR 28.) He testified that he
19 attends a self-help group once a month to “deal[] with parole.” (AR 24.) According to Plaintiff,
20 he cannot go to the grocery store alone to shop for groceries because he would encounter “too many
21 people.” (AR 32.)
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A Vocational Expert (“VE”) testified at the hearing that Plaintiff had no past relevant work.

23 (AR 34, 35.) The ALJ asked the VE a hypothetical question, in which the VE was to consider a
24 person of Plaintiff’s age, education, and work experience, who was limited to medium work, limited
25 to simple and routine tasks and involve no public contact. (AR 34.) The VE testified that such a
26 person could perform work as an industrial cleaner, DOT code 381.687-018, specific vocational
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1 preparation (SVP)5 2, of which there are 950,000 jobs in the national economy. (AR 34.) The VE
2 further testified that such a person could perform work as a laborer in stores, DOT code 922.6873 058, SVP 2, for which there are 80,000 jobs, and could also perform work as a hand packager, DOT
4 code 920.587-018, SVP 2, for which there are 160,000 jobs in the nation. (AR 34.)
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The ALJ then asked the VE a second hypothetical question considering the same person with

6 the same capabilities as outlined in the first hypothetical, but who is limited to sitting 60 minutes in
7 a workday, standing for 30 minutes in a workday, lifting up to 10 pounds, and would miss one or
8 two days of work. (AR 34–35.) The VE testified that no jobs were available for that person. (AR
9 35.)
Plaintiff’s counsel then asked the VE to consider a third hypothetical person who was limited

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11 to lifting 15 to 20 pounds occasionally and less than 15 pounds frequently, and who could
12 “probably” stand six hours and sit six hours in an eight-hour workday. (AR 35.) Plaintiff’s counsel
13 inquired whether such a person would be “limited at best to a light exertional level,” and the VE
14 responded affirmatively. (AR 35.)
15 C.

The ALJ’s Decision

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In a decision dated March 10, 2017, the ALJ found that Plaintiff was not disabled, as defined

17 by the Act. (AR 73–82.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R.
18 § 416.920. (AR 75–82.) The ALJ decided that Plaintiff had not engaged in substantial gainful
19 activity since October 23, 2014, the application date (and the amended alleged onset date of
20 disability) (Step One). (AR 75.) At Step Two, the ALJ found Plaintiff’s following impairments to
21 be severe: depressive disorder and degenerative disc disease. (AR 75.) However, Plaintiff did not
22 have an impairment or combination of impairments that met or medically equaled one of the listed
23 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (Step Three). (AR 75–
24 77.)
The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at Steps Four and

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Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a
specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991).
Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the
highest level – over 10 years of preparation). Id.

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1 Five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your
2 residual functional capacity . . . . We use this residual functional capacity assessment at both step
3 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff
4 retained the RFC:
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to perform medium work as defined in 20 CFR [§] 416.967(c) except simple
routine tasks with no public contact.

7 (AR 77.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected
8 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely
9 consistent with the medical evidence and other evidence in the record.” (AR 77.)
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The ALJ found that Plaintiff had no past relevant work (Step Four), but that, on the basis of

11 the RFC assessment, Plaintiff retained the capacity to perform other work that existed in sufficient
12 numbers in the national economy, specifically occupations such as industrial cleaner, laborer in
13 stores, and hand packager (Step Five). (AR 81–82.)
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Plaintiff sought review of this decision before the Appeals Council, which denied review on

15 September 13, 2017. (AR 1–3.) Therefore, the ALJ’s decision became the final decision of the
16 Commissioner. 20 C.F.R. § 416.1481.
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III.

LEGAL STANDARD

18 A.

Applicable Law

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An individual is considered “disabled” for purposes of disability benefits if he or she is

20 unable “to engage in any substantial gainful activity by reason of any medically determinable
21 physical or mental impairment which can be expected to result in death or which has lasted or can
22 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
23 However, “[a]n individual shall be determined to be under a disability only if [her] physical or
24 mental impairment or impairments are of such severity that [s]he is not only unable to do [her]
25 previous work but cannot, considering [her] age, education, and work experience, engage in any
26 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
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“The Social Security Regulations set out a five-step sequential process for determining

28 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel,
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1 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920.
2 The Ninth Circuit has provided the following description of the sequential evaluation analysis:
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In step one, the ALJ determines whether a claimant is currently engaged in
substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and evaluates whether the claimant has a medically severe
impairment or combination of impairments. If not, the claimant is not disabled. If
so, the ALJ proceeds to step three and considers whether the impairment or
combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.
404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If
not, the ALJ proceeds to step four and assesses whether the claimant is capable of
performing her past relevant work. If so, the claimant is not disabled. If not, the
ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to
perform any other substantial gainful activity in the national economy. If so, the
claimant is not disabled. If not, the claimant is disabled.

10 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4)
11 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found
12 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent
13 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920.
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“The claimant carries the initial burden of proving a disability in steps one through four of

15 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.
16 1989)). “However, if a claimant establishes an inability to continue her past work, the burden shifts
17 to the Commissioner in step five to show that the claimant can perform other substantial gainful
18 work.” Id. (citing Swenson, 876 F.2d at 687).
19 B.

Scope of Review

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“This court may set aside the Commissioner’s denial of [social security] benefits [only] when

21 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record
22 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined as being
23 more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 1152,
24 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial evidence is
25 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
26 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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“This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec.

28 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by
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1 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th
2 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the
3 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at
4 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may not
5 substitute its judgment for that of the Commissioner.” (citations omitted)).
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Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a

7 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,
8 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,
9 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]
10 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
11

Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

12 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,
13 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record
14 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’”
15 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
16 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking
17 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).
18

The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported

19 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th
20 Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment
21 for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court
22 must determine whether the Commissioner applied the proper legal standards and whether
23 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v.
24 Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
25

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as

26 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
27 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more
28 than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
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1 1198 (9th Cir. 2008). The Court “must consider the entire record as a whole, weighing both the
2 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may
3 not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue,
4 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).
5
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IV.

DISCUSSION

Plaintiff contends that the ALJ failed to articulate sufficient reasons for discrediting

7 consultative examiner Dr. Nikkel’s medical opinion and did not account for all of Plaintiff’s
8 limitations in determining Plaintiff’s mental RFC. (See Doc. 13 at 11–18; Doc. 15 at 2–4.)
9 Defendant responds that the ALJ properly assessed Dr. Nikkel’s medical opinion and accounted
10 for Plaintiff’s mental limitations by limiting Plaintiff to simple and routine tasks. (See Doc. 14 at
11 4–9.)
12 A.

The ALJ’s Consideration of the Medical Opinions

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1.

14

The weight given to medical opinions depends in part on whether they are proffered by

Legal Standard

15 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,
16 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking,
17 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an
18 examining physician’s opinion carries more weight than a non-examining physician’s opinion.
19 Holohan, 246 F.3d at 1202.
20

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering

21 its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical
22 findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or
23 examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 83024 31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for
25 “specific and legitimate” reasons. Id. at 830. The regulations require the ALJ to weigh the
26 contradicted treating or examining physician opinion, Edlund, 253 F.3d at 1157, except that the
27 ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical
28 findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory,
11

1 minimally supported opinion rejected); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
2 1989). The opinion of a non-examining professional, by itself, is insufficient to reject the opinion
3 of a treating or examining professional. Lester, 81 F.3d at 831.
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2.

The ALJ Erred in Her Assessment of the Opinion of Consultative Examiner
Dr. Nikkel

Dr. Nikkel assessed Plaintiff with adjustment disorder with depressed and anxious mood

7 and a GAF score of 44. (AR 249.) Her clinical findings included a sad affect congruent with his
8 stated mood, noting that he became tearful. (AR 248.) She found Plaintiff’s immediate memory
9 intact, but noted his recent memory was fair, as he could only recall two of three objects. (AR
10 248.) Plaintiff’s judgment and insight were fair and limited. (AR 249.) Dr. Nikkel opined that
11 Plaintiff “has the ability to perform simple and repetitive tasks,” but “may have difficulty
12 performing detailed and complex tasks due to his difficulties with attention and short term
13 memory.” (AR 250.) Plaintiff was found to have a “fair ability to accept instructions from
14 supervisors and interact with coworkers and the public, as evidenced by his depressed and anxious
15 demeanor.” (AR 250.) Dr. Nikkel found Plaintiff is “not able to perform work activities on a
16 consistent basis without special or additional instruction, as evidenced by his difficulties with short
17 term memory and attention.” (AR 250.) While he has a “fair” ability to maintain regular
18 attendance in a workplace, Plaintiff has a “poor” ability to complete a normal workday or
19 workweek without interruption from a psychiatric condition, “as evidenced by his depressive and
20 anxiety symptoms.” (AR 250.) According to Dr. Nikkel, Plaintiff is “not able to deal with the
21 usual stress encountered in a competitive workplace, due to the current severity of his symptoms
22 and lack of sense of efficacy.” (AR 250.)
23

Although not specifically identified by the ALJ as a basis for its rejection, Dr. Nikkel’s

24 opinion is contradicted by the medical opinion evidence of Disability Determinations Service
25 psychiatric consultants Drs. Amado and Brown, who opined that Plaintiff was not significantly
26 limited in his ability to sustain an ordinary routine without special supervision or in his ability to
27 work in coordination with or in proximity to others without being distracted by them. (AR 49,
28 64.) Drs. Amado and Brown found only moderate limitation of Plaintiff’s ability to complete a
12

1 normal workday and workweek without interruptions from psychologically based symptoms, and
2 opined that Plaintiff would be able to adapt to routine changes in the work setting. (AR 50, 64–
3 65.) Thus, the ALJ was required to state “specific and legitimate” reasons, supported by
4 substantial evidence, for rejecting Dr. Nikkel’s opinion.
5

In this case, the ALJ gave Dr. Nikkel’s opinion “less weight” because:

6

while she had the opportunity to examine [Plaintiff], her opinion is inconsistent
with her own findings. For instance, she reported poor ability to perform work
activities on a consistent basis due to short-term memory. However, the evaluation
showed his immediate memory was intact. He has a poor ability to complete a
normal workday due to depression and anxiety but the claimant was not taking any
psychotropic medication. Moreover, despite his alleged mental health problems he
was able to maintain his attention, concentration and overcome sadness long
enough to make automotive repairs.

7
8
9
10

11 (AR 81.) An ALJ may properly discount an examining physician’s opinion that is inconsistent
12 with the medical record, including her own findings.

See Valentine, 574 F.3d at 692–93

13 (contradiction between treating physician’s opinion and his treatment notes constitutes specific
14 and legitimate reason for rejecting opinion); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
15 1195 (9th Cir. 2004) (noting that “an ALJ may discredit treating physicians’ opinions that are
16 conclusory, brief, and unsupported by the record as a whole, . . . or by objective medical findings”)
17 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)); Thomas v. Barnhart, 278 F.3d
18 947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion of any physician . . . if that opinion
19 is brief, conclusory, and inadequately supported by clinical findings.”) (citing Matney on Behalf
20 of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)).
21

Here, however, the ALJ’s characterization of “inconsistencies” between Dr. Nikkel’s

22 opinion and her clinical findings is belied by the record. First, despite the ALJ’s statement to the
23 contrary, Dr. Nikkel’s opinion that Plaintiff would not able to perform work activities on a
24 consistent basis due to his difficulties with short term memory and attention is not inconsistent
25 with her clinical findings regarding Plaintiff’s memory functioning. While the ALJ is correct that
26 Dr. Nikkel found Plaintiff’s immediate memory “intact” (AR 81, 248), she ignores the fact that
27 Dr. Nikkel deemed Plaintiff’s recent memory “fair,” as he could recall only two of three objects
28 after five minutes. (AR 248.) Thus, far from contradicting Dr. Nikkel’s opinion regarding
13

1 Plaintiff’s limited ability to perform work activities on a consistent basis, her findings in fact
2 support that opinion.
3

The ALJ also found Dr. Nikkel’s opinion that Plaintiff had the poor ability to complete a

4 normal workday due to depression and anxiety was undermined by the fact Plaintiff was “not
5 taking any psychotropic medication,” but such determination is not supported by the medical
6 record as a whole. Although Plaintiff was not prescribed any psychiatric mediation at the time of
7 Dr. Nikkel’s examination of January 31, 2015 (AR 246), evidence in the record establishes that
8 Plaintiff was later prescribed an antidepressant on December 28, 2015 (AR 260), and was taking
9 the medication as recently as February 8, 2017 (AR 217). Indeed, that Plaintiff was prescribed a
10 medication to treat his depression almost a year after his examination by Dr. Nikkel suggests, at a
11 minimum, that his depressive symptoms persisted, yet the ALJ’s decision makes no mention of
12 this fact. Moreover, Plaintiff’s failure at the time of his examination by Dr. Nikkel to seek
13 treatment, and therefore medication, for his depression, is not a legitimate reason to reject Dr.
14 Nikkel’s opinion. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[T]he fact that [a]
15 claimant may be one of millions of people who did not seek treatment for a mental disorder until
16 late in the day is not a substantial basis on which to conclude that [a physician’s] assessment of
17 [a] claimant’s condition is inaccurate.”); see also Ferrando v. Comm’r of Soc. Sec. Admin., 449 F.
18 App’x 610, 611–12 (9th Cir. 2011) (“[F]ailure to seek treatment for his mental illness . . . is not a
19 clear and convincing reason to reject his [treating] psychiatrist’s opinion, especially where that
20 failure to seek treatment is explained, at least in part, by [the claimant’s] degenerating condition.”)
21 (citing Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1299–1300 (9th Cir. 1999) (noting
22 that the Ninth Circuit has “particularly criticized the use of a lack of treatment to reject mental
23 complaints both because mental illness is notoriously underreported and because ‘it is a
24 questionable practice to chastise one with a mental impairment for the exercise of poor judgment
25 in seeking rehabilitation’” (quoting Nguyen, 100 F.3d at 1465)).
26

The ALJ’s final reason for discounting the opinion of Dr. Nikkel is that Plaintiff “was able

27 to maintain his attention, concentration and overcome his sadness long enough to make automotive
28 repairs.” (AR 81.) An ALJ may reject a medical opinion regarding a claimant's mental health
14

1 because the claimant's activities of daily life contradict it, but only if substantial evidence supports
2 that conclusion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (finding that
3 inconsistency between doctor's opinion and claimant's “maintaining a household and raising two
4 young children, with no significant assistance from her ex husband” supported discounting the
5 doctor's opinion). The record must provide details about the nature, extent, and frequency of the
6 activities for them to “constitute ‘substantial evidence’ inconsistent with [an examining
7 physician's] informed opinion.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017).
Though the ALJ pointed to Plaintiff’s “automotive repairs” as a reason for rejecting Dr.

8

9 Nikkel’s opinion regarding the effect of Plaintiff’s depressive symptoms and attention and
10 concentration limitations in the workplace (AR 81), the record contains only a single instance of
11 Plaintiff lifting a car tire rotor in January 2016. (AR 287.) The ALJ did not develop a record
12 regarding the extent to which and the frequency with which Plaintiff engaged in “automotive
13 repairs” other than the single instance in January 2016, nor did the ALJ inquire into whether
14 Plaintiff performed such activities alone or with the assistance of others. Absent specific details
15 about Plaintiff’s “automotive repairs,” other than the single instance of lifting a car tire rotor, those
16 activities cannot constitute “substantial evidence” inconsistent with Dr. Nikkel’s opinion, and thus
17 the ALJ improperly relied on such activities to reject such opinion.6 Trevizo, 871 F.3d at 676. See
18 also Langdon v. Berryhill, Case No. 3:16-cv-05871-TLF, 2017 WL 3188616, at *7 (W.D. Wash.
19 July 26, 2017).
20

In sum, the ALJ erred in failing to provide specific and legitimate reasons supported by

21 substantial evidence for giving “little weight” to the opinion of Plaintiff’s examining physician,
22 Dr. Nikkel. That error was not harmless because it was not “‘inconsequential to the ultimate
23 nondisability determination.’” Molina, 674 F.3d at 1115 (quoting Carmickle v. Comm’r, Soc. Sec.
24
25
26
27
28

6

It is equally unclear how a single instance of lifting a car tire rotor is inconsistent with Dr. Nikkel’s opinion regarding
Plaintiff’s mental limitations, and the ALJ’s decision offers no elucidation from which the Court can find the existence
of a specific and legitimate rationale. See, e.g., Langdon, 2017 WL 3188616, at *7 (W.D. Wash. July 26, 2017)
(finding that the record did not support the ALJ's conclusion that the plaintiff’s activities contradict her physician’s
opinion about her ability to concentrate where it was “is unclear . . . how Facebook or computer games would relate
to any paid work activity, other than involving computers. These instead appear to be nothing more than leisurely
pastimes.”); Delaplain v. Comm'r of Soc. Sec. Admin., No. 2:15–cv–02439–HZ, 2017 WL 1234133, at *5 (D. Or.
Mar. 17, 2017) (finding that activities ALJ cited did not contradict doctor's opinion regarding limitations).

15

1 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). The ALJ's RFC assessment was that Plaintiff has
2 the RFC to perform medium work limited to “simple routine tasks with no public contact.” (AR
3 77.) Using the RFC, the VE testified that Plaintiff could perform as an industrial cleaner, a store
4 laborer, and a hand packager. (AR 34.) A reasonable ALJ fully crediting Dr. Nikkel’s opinion,
5 particularly regarding Plaintiff’s inability to perform work activities on a consistent basis and to
6 deal with workplace stress, as well as his poor ability to complete a normal workday or workweek
7 without interruption from his mental conditions, could have concluded that Plaintiff could not
8 perform any of these occupations.7 See Stout, 454 F.3d at 1056 (holding that ALJ's error in failing
9 to consider lay testimony about limitations was not harmless where reasonable ALJ could
10 conclude those limitations precluded employment).
11 B.

The ALJ’s Error Warrants Remand for Further Proceedings

12

When the Court finds that the ALJ committed prejudicial error, it possesses the discretion

13 to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).
14 Generally, if the Court finds that the ALJ’s decision was erroneous or not supported by substantial
15 evidence, the court must follow the “ordinary remand rule,” meaning that “the proper course,
16 except in rare circumstances, is to remand to the agency for additional investigation or
17 explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). A
18 remand for an award of benefits is inappropriate where the record has not been fully developed or
19 there is a need to resolve conflicts, ambiguities, or other outstanding issues. Id. at 1101.
Where, as here, an ALJ fails to “give sufficiently specific reasons for rejecting the

20

21 conclusion of [a physician],” it is proper to remand the matter for “proper consideration of the
22 physician[‘s] evidence.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see also Nguyen,
23 100 F.3d at 1464–65, 1467 (remanding for further proceedings where ALJ failed to “set forth
24
25
26
27
28

7

Dr. Nikkel’s opined severe limitations of Plaintiff’s mental functioning stand in stark contrast to the moderate
limitations of social functioning and supervision that this Court in other cases has found is encompassed by a
limitation in the RFC assessment to simple tasks performed in unskilled work. See, e.g., Menges v. Berryhill, No.
1:16–cv–01766–BAM, 2018 WL 1567786, at *8 (E.D. Cal. Mar. 30, 2018) (finding limitation to simple, routine tasks
adequately considered claimant’s moderate limitations in getting along with peers or being supervised in a work-like
setting); Henry v. Colvin, No. 1:15–cv–00100–JLT, 2016 WL 164956, at *18 (E.D. Cal. Jan. 14, 2016) (finding
restriction to simple tasks encompassed claimant’s moderate limitations in dealing with changes, social interaction,
and low stress tolerance).

16

1 specific, legitimate reasons” for crediting opinion of nonexamining consultant over that of
2 examining psychologist). Accordingly, the Court exercises its discretion and remands this matter
3 for further proceedings so that the ALJ can reconsider the medical evidence, particularly Dr.
4 Nikkel’s opinion, regarding Plaintiff’s mental impairments and their limitations on his ability to
5 work. See McAllister, 888 F.2d at 603 (remanding to allow the Secretary to review the record and
6 provide legally sufficient reasons for rejecting the treating physician’s report and, alternatively,
7 permitting the Secretary to award benefits). On remand, the ALJ shall properly assess the medical
8 evidence as a whole, determine Plaintiff’s RFC, and proceed through Steps Four and Five to find
9 what work, if any, Plaintiff is capable of performing.
10 C.

The Court Declines to Determine Plaintiff’s Remaining Assertion of Error

11

As the Court finds that remand is appropriate for the ALJ to reconsider Dr. Nikkel’s medical

12 opinion and reassess Plaintiff’s RFC, the Court need not address Plaintiff’s allegation of error
13 concerning the ALJ’s present RFC assessment and its failure to account for moderate limitations
14 in concentration, persistence, and pace. See, e.g., Newton v. Colvin, No. 2:13–cv–2458–GEB–
15 EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the matter must be remanded
16 for further consideration of the medical evidence, the court declines to address plaintiff's
17 remaining arguments.”).
18

V.

19

CONCLUSION AND ORDER

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

20 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for
21 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter
22 judgment in favor of Plaintiff Rodney Eugene Thomas and against Defendant Nancy A. Berryhill,
23 Acting Commissioner of Social Security.
24
25

IT IS SO ORDERED.

26 Dated:
27

September 21, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

28
17

.