Bailey v. Commissioner of Social Security

Filing 28

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 1/16/19 RECOMMENDING that 16 Motion for Summary Judgment be Granted and that 26 Cross-Motion for Summary Judgment be Denied. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEF BAILEY,

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No. 2:17-CV-2360-JAM-DMC
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Pending before the court are the parties’ brief on the merits (Docs. 16 and 26).

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).
For the reasons discussed below, the court recommends the matter be remanded
for further proceedings.

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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;

Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

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Step 5

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If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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To qualify for benefits, the claimant must establish the inability to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER’S FINDINGS

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Plaintiff applied for social security benefits on January 7, 2016. See CAR 21.1 In

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the application, plaintiff claims disability began on July 26, 2014. See id. In his brief, plaintiff

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alleges disability due to “mental problems.” Plaintiff’s claim was initially denied. Following

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denial of reconsideration, plaintiff requested an administrative hearing, which was held on

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February 13, 2017, before Administrative Law Judge (ALJ) Curtis Renoe. In a May 5, 2017,

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decision, the ALJ concluded plaintiff is not disabled based on the following relevant findings:

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1.

The claimant has the following severe impairment(s): affective
disorder, organic mental disorder (Traumatic Brain Injury), anxiety
disorder, bipolar II disorder, and post-traumatic stress disorder;

2.

The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in
the regulations;

3.

The claimant has the following residual functional capacity: full
range of work at all exertional levels; claimant can perform simple
routine, repetitive tasks; he can make simple work-related
decisions; he can occasionally interact with supervisors or
coworkers, but cannot engage in teamwork or joint work to
accomplish assigned work or duties; he cannot interact with the
public;

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Considering the claimant’s age, education, work experience,
residual functional capacity, and vocational expert testimony, there
are jobs that exist in significant numbers in the national economy
that the claimant can perform.

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See id. at 24-38.

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After the Appeals Council declined review on September 11, 2017, this appeal followed.

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Citations are the to the Certified Administrative Record (CAR) lodged on April 3,
2018 (Doc. 11).
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III. DISCUSSION
In his opening brief, plaintiff argues: (1) the ALJ erred in failing to evaluate

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treating source medical opinions; (2) the ALJ failed to articulate sufficient reasons to reject the

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medical opinions of his treating therapist; (3) the ALJ erred in failing to evaluate plaintiff’s

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symptom allegations; and (4) the ALJ erred in disregarding plaintiff’s qualification for the

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Veterans Administration Caregiver Support program.

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Prefacing his arguments, plaintiff states:

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Josef Bailey has mental problems. At his last job, working from
home for Apple, which ended in 2014 because he was fired, he had
accommodations including being allowed to take extra breaks to compose
himself if a customer upset him (which apparently occurred 10 times a
week) and bigger breaks that occurred about three times a week; these
would probably lie outside the ambit of “substantial gainful activity.”
(Transc., pp.67–72, 73–75, 96–97; 20 C.F.R. §404.1573(c)(2)) That
is, he was not “working” for about three years before he was fired.
He also didn’t pass basic training for the Army (transc., p.65) but
five years later enlisted in the National Guard (transc., p.66), serving in
Iraq and returning with PTSD. (Id.) He then worked for Apple for seven
years, starting in 2007, (transc., p.72); his accommodations began in 2011
(transc., p.72); and his PTSD worsened in 2013. (Transc., p.67).
PTSD was not his only mental problem. He had a history of special
education, apparently for learning disability/memory/ADHD, and repeated
the third grade. (E.g., transc., pp.77–78, 876, 944, 991).

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At footnote four of his brief, plaintiff adds:
He was also a crack baby, was raised in foster care, and may have
been sexually abused. His foster parents terminated their relationship with
him and his twin brother when the twins were age 14, and Mr. Bailey then
had to live in a group home to age 18. (Transc., pp.649, 876).
Plaintiff continues:
. . .Apparently his problems became acute in 2013, before his firing from
his Apple job in 2014. He presented to a Veterans Administration
traumatic brain injury clinic in April 2013 shortly after breaking his wife’s
collarbone and suffering legal consequences. (Transc., p.943). He was
dependent on his wife for daily functioning (footnoted omitted); she
described him as overwhelmed by his job and unable to help their children
with simple math and reading. (Transc., p.944) In September 2013 he
received a neuropsychological evaluation through the VA. He had called
the suicide hotline six days earlier. Mr. Bailey reported a history of blast
exposure in Iraq that could have caused cognitive damage. Testing showed
sustained visual and auditory attention was extremely impaired and
performance on a number of memory protocols was impaired. (Transc.,
p.878).
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His problems were not just cognitive, as hinted already. He had
called the suicide hotline six days before his neuropsychological workup
revealing marked and extreme memory and attention problems,
respectively. That was September 2013. In January 2014 and May 2014,
he again called the VA National Suicide Prevention Hotline. (Transc.,
pp.831, 835). In February 2015, his wife brought him into the VA because
of active suicidal ideation; he was assessed at moderate risk and
reported hearing voices for the first time; and he was prescribed daily
medication and psychologist and psychiatrist interventions. (Transc.,
pp.832–826) In July 2014 he was fired from his job. In
October (transc., p.798) and December 2014 (transc., p.775 he called the
suicide hotline; his global assessment of functioning was put at 48 in
November (transc., p.787) and December. (Transc., p.764) In February
2015 he was mentally hospitalized for suicidality, flashbacks of Iraq, and
auditory hallucinations. (Transc., p.649) In July 2015 he called the crisis
line again, this time with homicidal ideation directed toward his wife and
children. (Transc., pp.554–555) Later that month he overdosed on
medication he took from his wife’s purse while she was driving on the
freeway and was hospitalized at Methodist Hospital. (Transc., p.553) In
November 2015, Mr. Bailey’s principal psychotherapist, Victoria Steen,
LCSW, recommended removing his high-risk safety flag because of
recent stability (transc., p.477), but in early February 2016 he was
hospitalized for suicidality (e.g., transc., p.440) and his high suicide risk
flag returned. (Transc., p.441).
During this claim, Mr. Bailey received a 100 percent VA disability
rating. (Transc., p.1090).

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A.

Medical Opinions
The ALJ’s Analysis

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At Step 4, the ALJ evaluated the medical opinions to determine plaintiff’s residual

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functional capacity. See CAR 29-36. After discussing the various medical findings and opinions,

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see id. at 29-34, the ALJ gave weight to each opinion, see id. at 34-36. The ALJ gave “great

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weight” to the opinions of the reviewing physicians, Drs. Schnitzler and Davis. See id. at 35.

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The ALJ also noted the Veterans’ Administration (VA) rated plaintiff 100% disabled during the

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relevant time period, but gave the VA rating “little weight.” Id. at 35-36.

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With respect to plaintiff’s treating therapist, Ms. Steen, the ALJ stated:

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. . .VA records indicate as a result of his initial reports [of PTSD],
[plaintiff] underwent a mental health intake examination by social worker,
Victoria Steen, LCSW [License Clinical Social Worker]. Records reveal a
history of diagnosis of PTSD and ADHD. He reported a history of
exposure to multiple blasts while in the military and rule out traumatic
brain injury was diagnosed. On mental status exam, Ms. Steen noted he
was “casually dressed, some body odor,” he was cooperative, his mood
was euthymic with a slightly blunted affect. He denied suicidal and
homicidal ideation. His thought process was slightly circumstantial. He
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endorsed no psychotic thought content. He reported a history of special
education classes as a child. Ms. Steen found his judgment and insight
fair (4F/613). His initial global assessment of functioning was assessed at
40 indicating he presented with “major impairment in several areas, such
as work or school, family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable to work;
child frequently beats up younger children, is defiant at home, and is
failing at school)” as defined by the American Psychiatric Association
(2000). Diagnostic and statistical manual of mental disorders (4th ed.,
text rev.). Washington, DC Author: He was referred to counseling,
medication management, and various PTSD-related and group therapy
(4F/619-624, 618, 608-616). An initial screen was positive for TBI
[Traumatic Brain Injury] and thus he was referred for additional
evaluation (4F/618).

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***
On August 20, 2014, Victoria Steen, his mental health case manager,
called him and he admitted missing appointments due to transportation
issues as he was separated from his wife. He also admitted that he was not
taking his medication. Records indicate he was discharged form [sic]
TBI/Polytrauma team on July 16, 2014, for lack of recent referrals for
rehabilitation services. Ms. Steen rescheduled a medication management
appointment for the claimant (4F/324-424).

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On. . .January 5, 2016, Victoria Steen, LCSW, wrote a note on behalf of
the claimant stated he was receiving multiple services at Mather VAMC,
was diagnosed with PTSD and TBI and has been unable to hold successful
employment since July 2014. She opined, “Veteran remains severely
symptomatic and it is not recommended he return to work at this time.”
(4F/80).

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Victoria Steen, the claimant’s licensed clinical social worker, prepared a
letter dated January 5, 2016, opining that due to PTSD and TBI the
claimant “remains severely symptomatic and it is not recommended that
he return to work at this time” (4F/80). While the claimant has a long
history of case management with Ms. Steen, who is very familiar with his
conditions, her opinion is not consistent with treating notes a few months
earlier in November 2015 indicating he was stable psychiatrically and his
risk status was removed from his file. It appears, the claimant walked in
and related financial difficulties and a desire to continue treatment and this
was the catalyst for her letter. Evidence prior to the letter and after
indicate[s] the claimant is stable when he is compliant with medications
and that his symptoms escalate when he self-adjusts or discontinues
medication. Accordingly, the undersigned finds Ms. Steen’s opinion
inconsistent with substantial evidence and assigns it little weight.

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CAR 28-29, 31, 33-35.

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Plaintiff’s Contentions

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In section IV.A. of his brief, plaintiff asserts the ALJ failed to evaluate “supportive

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treating physician opinion.” In section IV.D. of his brief, plaintiff also argues the ALJ failed to

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provide sufficient reasons for rejecting opinions expressed by his treating therapist, Ms. Steen.

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Notably, plaintiff does not challenge the ALJ’s analysis as to the VA’s disability rating.

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As to the “supportive treating physician opinion” evidence, plaintiff argues:

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At page 34 of the transcript the decision states:

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On April 26, 2016, the claimant’ internal medicine
physician prepared a document to excuse the claimant from
participating in California’s CalWorks program, a
requirement for receipt of state benefits. The physician
opined he [meaning Josef Bailey, not the internist] had poor
comprehension and memory to complete everyday tasks.
His ability to adapt to work or work like situations was
poor due to his underlying mental health disorder.

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The document is at pages 1007–08 of the transcript. It does indeed so
state. The regulations require that every medical opinion be evaluated. (20
C.F.R. §404.1527(b) and (c)) [“In determining whether you are disabled,
we will always consider the medical opinions in your case record”;
“Regardless of its source, we will evaluate every medical opinion we
receive”] (emphases added)).
This opinion that Mr. Bailey’s comprehension and memory were
insufficient for everyday tasks and that his ability to adapt to work or
work-like situations is poor corresponds perfectly with the
neuropsychological testing finding marked and extreme memory and
attention problems, respectively, with the reasons for Mr. Bailey’s
substantial job accommodations that rendered that job
not “work” under the Act and with the reasons he lost that job (transc.,
pp.69–70, 805), with his recurrent suicidality and hospitalizations, with his
step-two impairments — affective disorder, organic mental disorder
(Traumatic Brain Injury), anxiety disorder, bipolar II disorder, and
posttraumatic stress disorder — with his need for caregivers (his wife or
his aunt; see below), and with his “serious” GAFs of 48.
This opinion that Mr. Bailey’s comprehension and memory were
insufficient for everyday tasks and that his ability to adapt to work or
work-like situations was poor would render him disabled. (Social Security
Ruling 85–15: The basic mental demands of competitive, remunerative,
unskilled work include the abilities (on a sustained basis) to understand,
carry out, and remember simple instructions; to . . . respond appropriately
to . . . usual work situations; and to deal with changes in a routine work
setting. A substantial loss of ability to meet any of these basic workrelated activities would severely limit the potential occupational
base. This, in turn, would justify a finding of disability . . . .
The decision never evaluates this disabling medical opinion that
amply accords with the evidence and if accepted compels disability. This
opinion comes from a treating source. “As a general rule, more weight
should be given to the opinion of a treating source than to the opinion of
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doctors who do not treat the claimant. (Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995) citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.
1987)) Even if contradicted by another opinion, treating physician opinion
can only be rejected by “providing ‘specific and legitimate reasons’
supported by substantial evidence in the record for doing so.” (Lester, id.;
citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
A fortiori, disabling treating physician opinion backed by objective
neuropsychological testing, hundreds of pages of treating records
including hospitalizations and suicide hotline calls, Mr. Bailey’s work
history, his personal history, his and his wife’s testimony, and also the
opinion of his psychotherapist Victoria Steen (see below) cannot be
ignored. This cannot very well be harmless error. (See Stout v.
Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006)
[failure to discuss third-party testimony favorable to a claimant can’t be
harmless error unless reviewing court can confidently conclude that no
reasonable ALJ, fully crediting testimony, could have reached
different disability determination]).
The decision should be reversed because it failed to evaluate this
supportive treating physician opinion.

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Regarding his therapist, Ms. Steen, plaintiff contends:

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The decision failed to evaluate a supportive treating physician
statement addressing capacities relevant to both the listings and mental
residual functional capacity (argument A), it ignored Mr. Bailey’s
symptom allegations (argument B), it ignored his “caretaken” status
containing direct implications for the listings and MRFC (argument C),
but it devoted more verbiage to deprecating a three-sentence statement
from Mr. Bailey’s treating therapist, Victoria Steen than the statement
itself. (Transc., pp.34–35, 458).
Ms. Steen’s rather general statements that Mr. Bailey “remains
severely symptomatic” and that “it is not recommended he return to work
at this time” (transc., p.458) deserved more than the “little weight”
(transc., p.35) the decision gave them.
The decision admits Ms. Steen’s “long history” with Mr. Bailey
and that she “is very familiar with his conditions.” (Transc., p.34) The
mere fact Mr. Bailey was sufficiently “stable,” to use the decision’s word,
that his suicide risk flag was removed two months before her statement
simply does not impeach Ms. Steen’s statement, which does not contend
Mr. Bailey’s (frequent, recurrent) suicidality was its basis, and moreover
the following month Mr. Bailey was mentally hospitalized for suicidality,
flashbacks of Iraq, and auditory hallucinations. (Transc., p.649) Thus,
“stability,” an isolatable second decisional reason for discounting Ms.
Steen’s statement (transc., p.34), is not only not logically and semantically
equivalent to “nondisabled” but in Mr. Bailey’s case is fleeting, transitory,
and doesn’t last long enough for sustained work-capacity “on a regular
and continuing basis.”(footnote omitted). Also, the fact that Mr. Bailey
(and his caregiver wife) walked into the clinic and explained that Mr.
Bailey’s state disability was running out the day Ms. Steen issued this
statement (compare transc., pp.34 and 458) doesn’t detract from the
validity of Ms. Steen’s statement; indeed, the very sentence after the Ms.
Steen sentence saying SDI was running out, from which the decision
derives its information that this was the “catalyst” (transc., p.34) for Ms.
Steen’s support, reflects Ms. Steen writing “Writer does not believe
veteran able to return to work at this time (combination of personality

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disorder traits, inability to provide for his own self-care, impulsivity,
mood sx). Writer isn’t sure if LCSW letter will be accepted; however, was
willing to write it on veteran’s behalf.” (Transc., p.458) The decision fails
to marshal sufficient evidence to overcome this stated sincerity with its
mere implication that Ms. Steen’s statement was provided insincerely.
The decision insists, not just in demeaning Ms. Steen but
throughout, that “the claimant is stable when he is compliant with
medications and that his symptoms escalate when he self-adjusts
or discontinues medication.” (Transc., pp.34–35) The logical/semantic
fallacy of equating “stability” with “nondisability,” and the need for
sustained, regular, and continuing mental capacity to perform work were
addressed in the previous paragraph including footnote 8. Since this entire
decision is besotted with the problematic concept embodied in this quote
about Mr. Bailey’s recurrent noncompliance, it will be discussed
separately here. The decision’s repeated reliance on this is contrary to case
law. For instance, Winter v. Berryhill, No. 15–17095 (9th Cir. 9/25/17)
reads “that Winter was apparently non-compliant with her prescribed
treatment regimen at certain times does not convincingly undermine
Winter’s claimed level of disability, as noncompliance with treatment
by individuals with bipolar disorder is consistent with their diagnosis,”
citing Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d 1157, 1164
(9th Cir. 2012)9 [our decision found at step two that Mr. Bailey had
bipolar disorder], and pointing out that Winter consistently sought
treatment, as did Mr. Bailey. Garrison v. Colvin, 759 F.3d 995, 1017–18
(9th Cir. 2014) goes on at some length on this head, beginning, “The ALJ
added that some of Garrison’s mental impairments were caused by
Garrison going off her medication. These are not clear, convincing, and
specific grounds for rejecting Garrison’s testimony . . . .” (Id. at 1017)
Garrison takes one through the waxing and waning nature of psychiatric
impairments, citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.
2001); the need to interpret “improvement” (or “stability”) in context
(including in Mr. Bailey’s case the context of his “caretaken” status),
citing Ryan v. Commissioner of Soc. Sec., 528 F.3d 1194, 1200–01
(9th Cir. 2008) and Hutsell v. Massanari, 259 F.3d 707, 711, 712 (8th Cir.
2001); and the specific, repeated, and central error of this decision:
The ALJ also erred in concluding that Garrison must be discredited on the
ground that some — though not all — of her bouts of remission [sic]
appear to have resulted from Garrison going off some of her medications.
As we have remarked, “it is a questionable practice to chastise one with a
mental impairment for the exercise of poor judgment in seeking
rehabilitation.” [citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.
1996)] In other words, we do not punish the mentally ill for occasionally
going off their medication when the record affords compelling reason to
view such departures from prescribed treatment as part of claimants’
underlying mental afflictions. See, e.g., Martinez v. Astrue, 630 F.3d 693,
697 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010);
Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009). Here, the record
shows that Garrison’s occasional decisions to go “off her meds” were at
least in part a result of her underlying bipolar disorder and her other
psychiatric issues. (Garrison at 1018fn.24).
What are really two statements by the admittedly knowledgeable
treating therapist Steen on page 458 of the transcript (her statement and
her chart about making it and why she agreed to make it) were wrongly
rejected.

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3.

Applicable Legal Standards

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“The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,

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533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not

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explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

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2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical

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opinion over another. See id.

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Under the regulations, only “licensed physicians and certain qualified specialists”

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are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue,

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674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on

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an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it

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rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144,

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1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute

13

substantial evidence when the opinions are consistent with independent clinical findings or other

14

evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social

15

workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec.

16

Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants

17

also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016).

18

Opinions from “other sources” such as nurse practitioners, physician assistants, and social

19

workers may be discounted provided the ALJ provides reasons germane to each source for doing

20

so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874

21

F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance

22

when opinions from “other sources” may be considered acceptable medical opinions).

23

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

24

proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

25

821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

26

professional, who has a greater opportunity to know and observe the patient as an individual, than

27

the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th

28

Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the
11

1

opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th

2

Cir. 1990).

3

In addition to considering its source, to evaluate whether the Commissioner

4

properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in

5

the record; and (2) clinical findings support the opinions. The Commissioner may reject an

6

uncontradicted opinion of a treating or examining medical professional only for “clear and

7

convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

8

While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

9

by an examining professional’s opinion which is supported by different independent clinical

10

findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

11

1041 (9th Cir. 1995).

12

A contradicted opinion of a treating or examining professional may be rejected

13

only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d

14

at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the

15

facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

16

finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

17

legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

18

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

19

without other evidence, is insufficient to reject the opinion of a treating or examining

20

professional. See id. at 831. In any event, the Commissioner need not give weight to any

21

conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

22

1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see

23

also Magallanes, 881 F.2d at 751.

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1

4.

2

As to “supportive treating physician opinion,” plaintiff argues the ALJ did not

3

evaluate opinions rendered by his treating internal medicine physician on April 26, 2016, that

4

plaintiff had poor comprehension and memory and poor ability to adapt in the workplace.

5

Plaintiff also argues the ALJ failed to properly evaluate opinions rendered by Ms. Steen, his

6

treating therapist. Plaintiff does not raise any arguments with respect to any other treating source

7

opinions.

8

Disposition

Regarding the April 2016, assessment, plaintiff notes the record at CAR 1007-

9

1008, which consists of a two-page “Authorization to Release Medical Information” form dated

10

April 8, 2016 – not April 26, 2016 – completed by a VA “provider/evaluator.” CAR 1007-1008.

11

The form indicates plaintiff’s ability to complete tasks is affected due to “poor comprehension &

12

memory” and plaintiff’s ability to adapt to work or work-like situations is “poor due to underlying

13

mental health disorder.” Id. at 1008. The court agrees with plaintiff the ALJ erred by ignoring

14

these opinions, which suggest limitations inconsistent with the ALJ’s residual functional capacity

15

finding. See Tommasetti, 533 F.3d at 1041; Garrison, 759 F.3d at 1012. While defendant

16

suggests a number of reasons the ALJ might have provided for rejecting these opinions, the court

17

declines defendant’s invitation to substitute its judgment for the Commissioner’s. The matter

18

should be remanded to allow the Commissioner to determine in the first instance the appropriate

19

weight to be given the April 2016 opinions of the VA provider.
Ms. Steen opined in January 2016 plaintiff is “severely symptomatic” and she did

20
21

not recommend he return to work. The ALJ gave this opinion little weight, finding it unsupported

22

by clinical observations. See CAR 34-35. Plaintiff argues the ALJ’s analysis as to Ms. Steen is

23

flawed because it misstates the treatment notes. The court does not agree. As the ALJ noted,

24

progress notes from November 2015 indicate plaintiff had been psychiatrically stable for the prior

25

three months, had been compliant with medication, and plaintiff reported “things at home are

26

currently going very well.” Id. at 475 (Exhibit 4F). This evidence supports the ALJ’s rationale

27

because it is inconsistent with Ms. Steen’s report plaintiff remained “severely symptomatic” in

28

January 2016.
13

1

B.

Credibility
The ALJ’s Analysis

2

1.

3

At Step 4, the ALJ provided a detailed evaluation of the credibility of plaintiff’s

4

statements and testimony to determine his residual functional capacity. See CAR 26-34. The

5

ALJ stated:

6

The claimant testified he was in the military from 1999 to 2000 and from
2005 to 2009. He had a break in service because he did not pass basic
training and was honorably discharged. He reenlisted in the National
Guard and served from 2005 to 2009 during which time he was deployed
from 2006 to 2007. He testified he suffers mental problems from his
service in Iraq and had an episode in which he blacked out. He alleges no
physical problems associated with his military service.

7
8
9
10

The claimant last worked in technical support via phone for Apple
products including iPhone and iPads in 2014. While working at Apple, he
was provided accommodations for his mental conditions stemming from
military work. For example, if he received a customer call during which
he felt there was a threat, he could take a five to ten minute break to
compose himself and he also had an accommodation to take an extra half
hour three to four times per week. He could also instant message his
manager who could assess his situation. He estimated that during the
seven years he worked for Apple, he had such instances beginning in
2011.

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15

He has a learning disorder for which he was provided special education.
He was able to perform his job at Apple because he had a script or
decision tree from which he worked including sticky notes and the job
became routine. Anything off his routine required he consult with
someone. His anger prevents him from working. He testified he wants to
choke people. He does not know what people are thinking about him.
Prior to knowing he had PTSD, he had an episode in which he became
angry and broke his wife’s collarbone, spent a week in jail, and is on
probation.

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The claimant is married with five children ages 15, 13, 11, 6, and 3 with
whom he lives. The claimant does limited household chores. His wife
makes meals because he is a terrible cook. He is too scared to cook and
feel overwhelmed. He drives his children to school daily. He can help his
younger child with some basic homework but not his older children due to
his learning disorder. He requires reminder to do personal grooming. He
tries to help around the house and can do dishes, mop, sweep, vacuum.
His wife and children care for two dogs. He goes with his wife monthly to
shop for groceries and helps her carry the groceries. He has anger issues
with certain race of people that make him nervous including Iraqi men,
Middle Eastern men, and with turbans trigger his PTSD. He looks at
people as targets or enemies and has difficulty with people who are
authoritative. When he feels triggered, he has difficulty concentrating and
paying attention. He tends to ruminate about his time in the military and

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1

becomes sidetracked frequently in a week and spends time checking
Facebook to check on people.

2
CAR 27.
3
The ALJ found plaintiff’s statements and testimony not fully credible, concluding

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5

they are “. . .not entirely consistent with the medical evidence and other evidence. . .” Id. at 28.

6

The ALJ then extensively described plaintiff’s treatment records. See id. at 28-34. After

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discussing the opinion evidence, see id. at 35-36, the ALJ stated:

8

17

In sum, the above residual functional capacity assessment is supported by
treatment evidence the claimant has psychiatric stability while compliant
with medications. Regarding TBI [Traumatic Brain Injury], the records
show his treating sources found it was mild and had difficulty determining
the effect of TBI versus symptoms from his mental conditions. While he
claims he has memory and concentration issues such that he cannot retain
information adequately to work, and that he had difficulty attending group
sessions for this reason, group session records reveal otherwise. On
March 21, 2015, he reported significant improvement on medications with
some fatigue. Records show he continued participation in therapy and
group counseling classes. Reported some confusion with class concepts
but continued to attend and group counseling notes no difficulties with
material (4F/229, 224, 217, 212-213, 211). Polytrauma rehabilitation
notes show treatment was adjusted to account for simplification of
materials and work accommodations were formulated to address stress
associated with customer service calls. He worked for several years prior
to implementation of these accommodations. The undersigned finds the
evidence and medical opinion support the claimant can perform simple
routine tasks but that he could not work with the public.

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Id. at 36.

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2.

20

Plaintiff argues:

21

At page 27 of the transcript the decision adduces a number of Mr.
Bailey’s symptom allegations, and at page 28 one encounters the standard
FIT-template boilerplate bringing those allegations past the first step and
foundering them at the second step of the two-step claimant symptom
evaluation required by 20 C.F.R. §404.1529, Social Security Ruling 16–
3p, and the case law and considerations set forth at length in Smolen v.
Chater, 80 F.3d 1273, 1281–84(9th Cir. 1996).
There, however, things end. The decision not only fails to evaluate
the multiple specified factors to be evaluated at that second step but fails
altogether to return to its needed chore of justifying rejection of Mr.
Bailey’s symptom allegations at that second step.

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16

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Plaintiff’s Contentions

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1

3.

2

The Commissioner determines whether a disability applicant is credible, and the

3

court defers to the Commissioner’s discretion if the Commissioner used the proper process and

4

provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

5

credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

6

F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

7

821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

8

and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

9

evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

10

credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d

11

1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

12

and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

13

Applicable Legal Standards

If there is objective medical evidence of an underlying impairment, the

14

Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

15

because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

16

341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

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22

The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

23

The Commissioner may, however, consider the nature of the symptoms alleged,

24

including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

25

947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

26

claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

27

testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

28

prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)
16

1

physician and third-party testimony about the nature, severity, and effect of symptoms. See

2

Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

3

claimant cooperated during physical examinations or provided conflicting statements concerning

4

drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

5

claimant testifies as to symptoms greater than would normally be produced by a given

6

impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

7

Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

8

4.

9

According to plaintiff, the ALJ’s credibility analysis is deficient because it consists

10

of boilerplate language after which “. . .things end.” This argument, however, completely ignores

11

the detailed analysis provided by the ALJ, outlined above. See CAR 26-36. Because the ALJ

12

provided an analysis, the court finds the ALJ met his legal burden, see Rashad, 903 F.2d at 1231,

13

and rejects plaintiff’s argument the ALJ’s hearing decision “. . .fails altogether to return to its

14

needed chore of justifying rejection of Mr. Bailey’s symptom allegations at that second step.”2

15

C.

Disposition

VA Caregiver Program

16

According to plaintiff:

17

The decision not only ignored the disabling opinion of Mr.
Bailey’s treating physician and failed to evaluate his own testimony, it
ignored Mr. Bailey’s status as a recipient of Veterans Administration
caregiver services, something carrying strong implications of disability
including directly bearing on the “B” and “C” criteria of the mental
listings. That Mr. Bailey’s wife and sometimes his aunt were his
caregivers has been mentioned, and references to his wife as caregiver
are scattered throughout this record consisting mainly of VA medical
records.
Statutory authority for the VA caregiver program is 38 U.S.C.
§1720G. Subsections (a)(2)(B) and (C) state veterans qualify because of
“serious injury (including traumatic brain injury, psychological trauma, or
other mental disorder) incurred or aggravated” by service on or after
September 11, 2001, making them “in need of personal care services
because of — (i) an inability to perform one or more activities of daily
living; (ii) a need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury; or (iii) such other
matters as the Secretary considers appropriate.” Regulatory elaboration is

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26
27
28

Plaintiff raises no arguments regarding the ALJ’s rationale, in particular the ALJ’s
finding plaintiff’s statements and testimony are inconsistent with the medical opinion evidence as
well as the treatment records.
17
2

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at 38 C.F.R. §§71.10ff. Section 71.15 defines inability to perform an
activity of daily living and need for supervision or protection. Section
71.20 elaborates “serious injury” and “need for personal care services.”
Aside from direct correlations to Social Security about to be mentioned,
acceptance in the program implies considerable severity:
Current eligibility criteria requirements for acceptance into
the caregiver program are rigorous. This is shown in the
fact that there are currently only 22,000 participants in the
program, which is less than three percent of the 1.06
million Global War on Terror veterans who have received a
service-connected disability rating from VA as of
September 30, 2016. Additionally, 86 percent of veterans
who are enrolled in the caregiver program have a serviceconnected disability rating of 70 percent or higher.
(footnote omitted).
The “in need of personal care” and “activities of daily living” criteria
correlate closely with the “B” criterion of adapting or managing oneself
and implicate the criterion of understanding, remembering, and applying
information. Qualification and need for a caregiver correlates with the “C”
criteria of needing psychoscocial support or a highly structured setting and
with minimal capacity to adapt to changes in environment or demands not
already part of your daily life. (See generally listing 12.00F and G.).
The record reflects Mr. Bailey and his wife being “educated to” the
VA Caregiver Support program in April 2014, after Mr. Bailey broke his
wife’s collarbone and before he was fired from his non-SGA job with
Apple that July. (Transc., p.943) It’s clear that by the end of 2014 his wife
was formally his caregiver. (Transc., p.772 [“Veteran is . . . engaged in the
CGS Program. . . . message left for caregiver Susie Bailey”] The alleged
disability onset date here is the July 2014 date of his termination from
Apple. (E.g., transc., p.214) Footnote 5 above already mentions Mr. Bailey
still being in the caregiver program in early 2017, months before the
decision date. Thus, Mr. Bailey was in this program essentially throughout
this claim.
The correlations between qualification for this caregiver program
and the “B” and “C” criteria of the mental listings have just been
mentioned. The correlations between qualification for this caregiver
program and the supportive treating physician opinion this decision failed
even to evaluate were mentioned in argument A. The correlation between
deficits in activities in daily living and need for personal care and the basic
work-related mental functions of understanding, remembering, and
carrying out simple tasks and responding appropriately to usual work
situations (see SSR 85–15) are rather obvious and should follow
sufficiently from the foregoing not to need elaboration.
Just as McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002)
held, consistently with “all of the other circuits that have considered the
question” (id. at 1076) that a VA disability rating must be given weight, so
too must qualification for the VA Caregiver Program be given either
“substantial” or “great” weight. (Id.; 20 C.F.R. §404.1545(a)(3)7 [“We
will assess your residual functional capacity based on all of the relevant
medical and other evidence.” (Emphasis added)]; cf. 20 C.F.R. §404.1504,
an older version of which is cited in McCartey, id., which held an “ALJ
must consider” a VA rating but “a VA rating of disability does not
necessarily compel the SSA to reach an identical result.”) McCartey’s
18

8

policy considerations apply: “the marked similarity between these two
federal disability programs,” “Both programs serve the same
governmental purpose,” “Both programs have a detailed regulatory
scheme that promotes consistency in adjudication of claims. Both are
administered by the federal government, and they share a common
incentive to weed out meritless claims.” (Id.).
Even if much of the foregoing argument and authorities were
rejected, the essential components that (1) Mr. Bailey’s eligibility for the
VA Caregiver program correlates closely with eligibility for Social
Security disability and (2) that 20 C.F.R. §404.1545(a)(3) — and listing
12.00 (see fn.7) — require all relevant evidence be considered remain to
require the decision to consider this fact.
The decision’s total disregard of Mr. Bailey’s “caretaken” status
warrants reversal on substantial evidence grounds (cf. Standard of Review,
supra), as well as for the particularized reasons given here.

9

Defendant does not dispute the ALJ was aware of plaintiff’s participation in the

1
2
3
4
5
6
7

10

VA Caregiver Support program during the relevant time period. While the ALJ discussed the

11

VA’s disability ratings, see CAR 35-36, the ALJ made no mention of plaintiff’s participation in

12

this program. In opposition, defendant once again invites the court to speculate as to a reason the

13

ALJ might have provided for discounting this evidence:

14

19

Next, in his arguments, Plaintiff omits discussion of subparagraph
(iv) of 38 U.S.C. § 1720G(a)(2)(C) referring to the need of personal care
services because of “such other matters as the Secretary considers
appropriate.” 38 U.S.C. § 1720G(a)(2)(C)(iv). This implies that the VA
could have found that Plaintiff had not necessarily proven “an inability to
perform one or more activities of daily living,” in any case. In sum,
Plaintiff fails to prove how having a VA caregiver should translate to
being disabled under SSA’s rules. See 20 C.F.R. § 404.1504. In any event,
Plaintiff fails to provide evidence of an improper rejection by the ALJ of a
VA action or determination. See Turner, 613 F.3d at 1225; McCartey, 298
F.3d at 1076.

20

Though it is possible the regulations cited by defendant suggest plaintiff may have

15
16
17
18

21

been admitted to the VA Caregiver Support program for some unknown reason unrelated to

22

disability, the court declines the invitation to substitute its own judgment for the Commissioner’s

23

in this regard. Plaintiff’s argument is well-taken and the court rejects defendant’s contention

24

plaintiff “. . .fails to prove how having a VA caregiver should translate to being disabled under

25

SSA’s rules.” To the contrary, as plaintiff notes and defendant does not dispute, the requirements

26

of the VA Caregiver Support program are closely related to various findings required for a

27

finding of disability under the Social Security Act. The court concludes the ALJ erred by failing

28

to discuss plaintiff’s participation in the VA Caregiver Support program.
19

1

IV. CONCLUSION

2

Based on the foregoing, the undersigned recommends that:

3

1.

Plaintiff’s motion for summary judgment (Doc. 16) be granted;

4

2.

Defendant’s cross-motion for summary judgment (Doc. 26) be denied; and

5

3.

The Commissioner’s final decision be reversed and this matter be

6

remanded for further proceedings consistent with these findings and recommendations.

7

These findings and recommendations are submitted to the United States District

8

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

9

after being served with these findings and recommendations, any party may file written

10

objections with the court. Responses to objections shall be filed within 14 days after service of

11

objections. Failure to file objections within the specified time may waive the right to appeal. See

12

Martinez v. Ylst,951 F.2d 1153 (9th Cir. 1991).

13
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17

Dated: January 16, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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