Nguyen v. Berryhill

Filing 21

ORDER Adopting 18 Report and Recommendation of United States Magistrate Judge; Overruling 19 Defendant's Objections to the Magistrate Judge's Report and Recommendation; Granting in Part 13 Plaintiff's Motion for Summary Judgment; Denying 14 Defendant's Cross-Motion for Summary Judgment; and Remanding for Further Proceedings. After reviewing the Report and Recommendation in its entirety, the Court finds Judge Stormes' conclusions are thorough, well-reasoned, and supported by applicable law. Signed by Judge Michael M. Anello on 9/5/2018. (rmc)(Certified copy of order sent to Social Security Administration)

1
2
3
4

UNITED STATES DISTRICT COURT

5

SOUTHERN DISTRICT OF CALIFORNIA

6
7

TAM PHAN NGUYEN,
Plaintiff,

8
9
10

Case No.: 17cv1406-MMA (NLS)
ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

[Doc. No. 18]

13

OVERRULING DEFENDANT’S
OBJECTIONS TO THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION;

14

[Doc. No. 19]

15
16

GRANTING IN PART PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT;

17

[Doc. No. 13]

18

DENYING DEFENDANT’S CROSSMOTION FOR SUMMARY
JUDGMENT; AND

11
12

Defendant.

19
20

[Doc. No. 14]

21

REMANDING FOR FURTHER
PROCEEDINGS

22
23

On July 12, 2017, Plaintiff Mr. Nguyen filed this social security appeal challenging

24

the denial of his application for disability insurance benefits and Supplemental Security

25

Income (“SSI”). Doc. No. 1. The Court referred all matters arising in this appeal to the

26

Honorable Nita L. Stormes, United States Magistrate Judge, for report and

27

recommendation pursuant to section 636(b)(1)(B) of title 28 of the United States Code

28

and Civil Local Rule 72.1. See Doc. No. 7.
1
17cv1406-MMA (NLS)

1

The parties have filed motions for summary judgment. Doc. Nos. 13, 14. On

2

August 3, 2018, Judge Stormes issued a thorough and well-reasoned Report

3

recommending that the Court grant in part Plaintiff’s motion, deny Defendant’s cross-

4

motion, and remand the case for further proceedings. Doc. No. 18 at 39-40. Defendant

5

has filed objections to the Report and Recommendation [Doc. No. 19], and Plaintiff filed

6

a reply brief [Doc. No. 20].

7

LEGAL STANDARD

8

The duties of the district court in connection with a Magistrate Judge’s report and

9

recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and

10

28 U.S.C. § 636(b)(1). Where the parties file objections, “[a] judge of the [district] court

11

shall make a de novo determination of those portions of the [report and recommendation]

12

to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140,

13

149–50 (1985). A district judge may “accept, reject, or modify, in whole or in part, the

14

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);

15

Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006).

16

DISCUSSION
Defendant objects to the Magistrate Judge’s findings that the Administrative Law

17
18

Judge (“ALJ”): (1) improperly rejected the opinions of three treating physicians; (2)

19

improperly found a nonexamining physician’s opinion preferable to the opinions of

20

treating physicians; and (3) improperly discredited Plaintiff and his family members.

21

Doc. No. 19.

22

1.

23

Evaluating Opinions of Treating Physicians
Defendant first objects to the Magistrate Judge’s finding that the ALJ failed to

24

provide specific and legitimate reasons for rejecting the testimony of Doctors Diana L.

25

Marquardt, M.D., Harry C. Henderson, III, M.D., and Milton Lessner, Ph.D. Id. at 2-9.

26

Where the treating physician’s opinion is contradicted by another doctor, the ALJ

27

may not reject the opinion without providing “specific and legitimate reasons” supported

28

by substantial evidence in the record for so doing. Murray v. Heckler, 722 F.2d 499, 502
2
17cv1406-MMA (NLS)

1

(9th Cir. 1983). If a treating physician’s opinion is “well-supported by medically

2

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

3

substantial evidence in [the] case record, [it will be given] controlling weight.” 20 C.F.R.

4

§ 404.1527(c)(2). If a treating physician’s opinion is not given “controlling weight”

5

because it is not “well-supported” or because it is inconsistent with other substantial

6

evidence in the record, the ALJ considers specified factors in determining the weight it

7

will be given: (1) “[l]ength of the treatment relationship and frequency of examination”

8

by the treating physician; (2) the “nature and extent of the treatment relationship”

9

between the treating physician and the plaintiff; (3) the amount of relevant evidence that

10

supports the opinion and quality of the explanation provided; (4) the consistency of the

11

medical opinion with the record as a whole; (5) the specialty of the physician providing

12

the opinion; and (6) other factors, such as the degree of understanding a physician has of

13

the Social Security Administration’s “disability programs and their evidentiary

14

requirements,” and the degree of his or her familiarity with other information in the case

15

record. Id. § 404.1527(C)(2)-(6).

16

A.

17

In rejecting Dr. Lessner’s opinion, the ALJ explained that “[m]uch of [his] analysis

Doctor Lessner

18

appears based on subjective statement[s] from [Plaintiff] including that he felt he could

19

not make decisions anymore, he felt restless and agitated, and his energy was low,” and

20

he did not “list any specific functional limitations/restrictions.” AR at 109. The ALJ also

21

concluded that Dr. Lessner’s assessment is “inconsistent with [Plaintiff’s] reports that he

22

provides care to both of his disabled parents.” Id.

23

Although the ALJ asserts that Dr. Lessner’s analysis relies heavily upon Plaintiff’s

24

subjective statements, this is not apparent from the record. See AR at 109. Dr. Lessner

25

relied upon objective clinical evidence, including his general observations, a review of

26

Dr. Henderson’s records and prescriptions, a review of a psychological evaluation by Dr.

27
28
3
17cv1406-MMA (NLS)

1

Miller, and test results from five objective tests.1 See AR at 479-89. Thus, the ALJ’s

2

finding that Dr. Lessner’s opinion rested largely on Plaintiff’s subjective complaints is

3

not supported by substantial evidence. See Tommasetti v. Astrue, 533 F.3d 1035, 1041

4

(9th Cir. 2008) (An ALJ may reject a treating physician’s opinion where it relies on the

5

plaintiff’s discredited self-report and objective clinical evidence does not support the

6

opinion).
The ALJ’s determination that Dr. Lessner’s assessment is inconsistent with

7
8

Plaintiff’s reported activities is not a specific and legitimate reason supported by

9

substantial evidence. While inconsistency between a treating physician’s opinion and a

10

plaintiff’s daily activities may be a specific and legitimate reason for rejecting the

11

opinion, Plaintiff’s reported activities are not inconsistent with Dr. Lessner’s opined

12

limitations. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Rollins v.

13

Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Brandl v. Astrue, No. CV 11-7719-SP,

14

2012 WL 3887097, at *5 (C.D. Cal. Sept. 7, 2012); AR at 481. Here, the ALJ noted that

15

Plaintiff could clean, straighten up around the house, and watch over his father by feeding

16

him, assisting him to the bathroom, and walking him around the house. AR at 102. Dr.

17

Lessner concluded that Plaintiff would have difficulty with concentration and short term

18

memory. AR at 483. None of the daily activities cited by the ALJ exceed Dr. Lessner’s

19

opined limitations. See Brandl, 2012 WL 3887097, at *4-5 (“The mere ability to perform

20

activities of daily living . . . is not a specific and legitimate reason.”); Fair v. Bowen, 885

21

F.2d 597, 603 (9th Cir. 1989) (“The Social Security Act does not require that claimants

22

be utterly incapacitated to be eligible for benefits.”).
The ALJ also rejected Dr. Lessner’s opinions because he failed to identify any

23
24

specific functional limitations or restrictions. AR at 109. However, Dr. Lessner

25
26
27
28

1

Specifically, Dr. Lessner based his diagnostic impression on results from the following tests: (1) The
Minnesota Multiphasic Personality Inventory-2; (2) Rotter Incomplete Sentence Blank; (3) Bender
Gestalt; (4) The Mooney Problem Check List; and (5) The Beck Depression Inventory. AR at 484-88.
4
17cv1406-MMA (NLS)

1

concluded that Plaintiff would not be able to work due to concentration problems, short

2

term memory, and suspected brain damage. AR at 483. While Dr. Lessner’s statement is

3

brief, it does in fact state specific limitations. See id. Accordingly, it was inaccurate for

4

the ALJ to conclude that Dr. Lessner’s report did not detail any specific limitations. See

5

Vossough v. Colvin, No. ED CV 13-02207-VBK, 2014 WL 3055866, at *6 (C.D. Cal.

6

July 2, 2014) (finding the ALJ erred in concluding a treating physician’s letter did not

7

contain specific limitations where he briefly stated that the plaintiff’s symptoms interfere

8

with concentration and focus).
Based on the foregoing, the Court OVERRULES Defendant’s objection to the

9
10

Magistrate Judge’s finding that the ALJ improperly rejected Dr. Lessner’s opinion.

11

B.

12

The ALJ accorded no weight to Dr. Marquardt’s opinion because she “based her

Dr. Marquardt

13

assessments of [Plaintiff’s] mental impairments on ‘eConsults’ and subjective statements,

14

noting almost no objective findings of her own to support her conclusion that mental

15

impairments would prevent work activity.” AR at 110. The ALJ also noted that Dr.

16

Marquardt is “not a specialist in this area.” Id.

17

The ALJ’s determination that Dr. Marquardt’s opinion is based on very little to no

18

objective findings of her own is not supported by substantial evidence. For example, Dr.

19

Marquardt consistently assessed Plaintiff as “oriented x3.”2 See AR at 374, 381, 387,

20

389, 391, 393, 395, 397, 399, 401, 412, 414, 431 433, 435, 440, 447, 449, 451, 453, 455.

21

At times, Dr. Marquardt noted Plaintiff’s odd affect or that he was “not very socially

22

appropriate.” AR at 412, 414, 431, 433. Moreover, in reviewing Dr. Marquardt’s consult

23

with a mental health specialist, it appears that Dr. Marquardt made her own objective

24
25
26
27
28

“Oriented x3” means that a person is oriented to person, place, and time, but is not aware of the
situation. See Metro. Life Ins. Co. v. Yeary, No. 3:94 CV 7534, 1998 U.S. Dist. LEXIS 22835, at *11
(N.D. Ohio Feb. 6, 1998) (“The category oriented ‘x3’ means whether an individual is oriented to
person, place and time.”); see also Fernandez v. Comm’r of Soc. Sec., No. 8:14-cv-1272-T-30CM, 2015
U.S. Dist. LEXIS 108133, at *15 (M.D. Fla. July 31, 2015) (stating that oriented x4 indicates that a
person is “oriented to person, place, time and situation”).
2

5
17cv1406-MMA (NLS)

1

findings with respect to Plaintiff’s bipolar disorder diagnosis. See AR at 474-75 (stating

2

that the specialist indicated the diagnosis could be either a primary psychotic disorder or

3

a mood disorder with psychotic features). Dr. Marquardt’s assessments with respect to

4

diagnosing Plaintiff and his level of orientation were based on observed abnormalities

5

rather than Plaintiff’s subjective statements. See Popick v. Comm’r of Soc. Sec., 32 F.

6

Supp. 3d 157, 168 (N.D.N.Y. 2012) (stating that a diagnosis is likely based upon

7

“observed abnormalities of behavior, rather than any subjective statement by Plaintiff”);

8

see also 20 C.F.R. § 404.1502(g) (“Psychiatric signs are medically demonstrable

9

phenomena that indicate specific abnormalities, e.g., abnormalities of behavior, mood,

10

thought, memory, orientation, development, or perception, and must also be shown by

11

observable facts that can be medically described or evaluated.”).

12

Additionally, the Magistrate Judge correctly concluded that a treating primary care

13

physician’s opinion as to Plaintiff’s mental functioning may not be disregarded because

14

the physician is not a mental health specialist. See Lester v. Chater, 81 F.3d 821, 833

15

(9th Cir. 1995). Dr. Marquardt is “qualified to give a medical opinion as to [Plaintiff’s]

16

mental state . . . even though [Dr. Marquardt] is not a psychiatrist.” See Sprague v.

17

Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Like the treating physicians in Sprauge and

18

Lester, Dr. Marquardt provided treatment for Plaintiff’s psychiatric impairment,

19

including the prescription of psychotropic medication. See AR at 107; see also Sprague,

20

812 F.2d at 1232; Lester, 81 F.3d at 833. Thus, Dr. Marquardt’s “opinion constitutes

21

‘competent psychiatric evidence’ and may not be discredited on the ground that [she] is

22

not a board certified psychiatrist.” Lester, 81 F.3d at 833 (quoting Sprague, 812 F.2d at

23

1232). Moreover, “[a]n integral part of the treating physician’s role is to take into

24

account all the available information regarding all of [her] patient’s impairments—

25

including the findings and opinions of other experts.” Id.

26

In any event, the ALJ failed to consider the factors set forth in 20 C.F.R. §

27

404.1527(C)(2)-(6). Accordingly, the Court OVERRULES Defendant’s objection to the

28

Magistrate Judge’s finding that the ALJ “did not adequately detail his reasoning in
6
17cv1406-MMA (NLS)

1

accordance with the ‘specific and legitimate’ standard” and did not weigh the relevant

2

factors in giving less than controlling weight to Dr. Marquardt. Doc. No. 18 at 34.

3

C.

4

The ALJ found that “Dr. Henderson’s opinion is unsupported by any clinical

Dr. Henderson

5

notations and appears to accept uncritically as true the subjective statements of either

6

[Plaintiff] or his family members” and that his opinion is “inconsistent with [Plaintiff’s]

7

reported activities including cleaning, preparing meals, and caring for his disabled

8

parents.” AR at 111. As such, the ALJ found his opinion unreliable. Id.

9

A review of the record reveals that Dr. Henderson’s opinion is based upon his

10

psychotherapy and medication management with Plaintiff for over a year. See Popick, 32

11

F. Supp. 3d at 160-61 (stating that a diagnosis is likely based upon “observed

12

abnormalities in Plaintiff’s behavior, not merely Plaintiff’s self-reports”). It is also clear

13

that Dr. Henderson does not “accept uncritically as true the subjective statements” of

14

Plaintiff or his family. See AR at 111. For example, Dr. Henderson reported that

15

Plaintiff “is in severe delusion thinking that he is caring for his ill father” and specifically

16

explained that Plaintiff does not do any household activities. AR at 690, 692.

17

Further, the ALJ did not weigh the factors set forth in 20 C.F.R. § 404.1527(C) to

18

accord less than controlling weight to Dr. Henderson. 20 C.F.R. § 404.1527(C)(2)-(6).

19

Based on the foregoing, the ALJ did not adequately provide specific and legitimate

20

reasons for rejecting Dr. Henderson’s opinion, and the Court OVERRULES Defendant’s

21

objection on this ground.

22

2.

23

Evaluating the Opinion of Nonexamining Physician Dr. Koretsky
According to Defendant, the ALJ properly gave partial weight to Dr. Koretsky’s

24

opinion because he found that it “addressed Plaintiff’s reported symptoms and the many

25

normal findings from the mental status examinations.” Doc. No. 19 at 9. When a

26

nonexamining physician’s opinion contradicts an examining or treating physician’s

27

opinion and the ALJ gives greater weight to the nonexamining physician’s opinion, the

28

ALJ must articulate his reasons for doing so. See Morgan v. Comm’r of Soc. Sec. Admin.,
7
17cv1406-MMA (NLS)

1

169 F.3d 595, 600-01 (9th Cir. 1999). “A nonexamining physician’s opinion can

2

constitute substantial evidence if it is supported by other evidence in the record.” Ste

3

Claire v. Astrue, 752 F. Supp. 2d 1146, 1155 (D. Or. 2010) (citation omitted).

4

Here, the ALJ did not adequately articulate his reasons for providing Dr. Koretsky

5

more weight than the treating physicians, and did not articulate how his opinion is

6

supported by other evidence in the record. See AR at 110-11. While the ALJ did find

7

that Dr. Koretsky’s opinion is supported by Plaintiff’s “reported symptoms and findings

8

from multiple mental status exams and psychological testing,” the ALJ did not identify

9

which examinations and tests support Dr. Koretsky’s opinion. See id. This does not

10

sufficiently explain how the record as a whole supports Dr. Koretsky’s opinion,

11

particularly where Plaintiff’s treating physicians opined that Plaintiff is suffering severe,

12

disabling mental impairments. Accordingly, the Court agrees with the Magistrate

13

Judge’s finding that “the ALJ must provide additional information and reasoning to reject

14

or discount the opinions of the treating physicians and offer an explanation as to why [Dr.

15

Koretsky’s] conclusion is correct.” See Doc. No. 18 at 36. The Court, therefore,

16

OVERRULES Defendant’s objection on this ground.

17

3.

18

Credibility Determinations
Defendant objects to the Magistrate Judge’s finding that the ALJ improperly

19

partially rejected Plaintiff’s and third party testimony. Doc. No. 19 at 10. The ALJ

20

discredited Plaintiff, his mother, and his brother because Plaintiff’s “regular activities are

21

inconsistent with earlier reports,” which suggest that Plaintiff is more capable than

22

alleged. Id. The ALJ also found that the objective medical evidence is inconsistent with

23

allegations of disabling symptoms and limitations. AR at 105. The ALJ also gave

24

Plaintiff’s mother and brother “little weight” because of their “inherent bias/subjectivity”

25

and noted “internal inconsistencies” within Plaintiff’s brother’s Third Party Function

26

Report. Id.

27

First, the ALJ found that Plaintiff’s reported activities are inconsistent with earlier

28

reports. AR at 104. “[D]aily activities may be grounds for an adverse credibility finding
8
17cv1406-MMA (NLS)

1

if a [plaintiff] is able to spend a substantial part of his day engaged in pursuits involving

2

performance of physical functions that are transferrable to a work setting.” Orn v.

3

Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (internal quotation marks omitted). A plaintiff

4

need not be “utterly incapacitated” to be eligible for benefits. Fair, 885 F.2d at 603. In

5

this case, Plaintiff testified that he cleans and straightens up around the house and

6

watches over his father, including feeding him, assisting him to the bathroom, and

7

walking with him. AR at 104. While there is conflicting evidence regarding the extent of

8

Plaintiff’s ability to perform these activities,3 they relate to Plaintiff’s physical

9

capabilities. “The fact that Plaintiff is physically able to perform certain tasks, however,

10

has little bearing on [his] reporting of mental impairments. Therefore, Plaintiff’s

11

credibility concerning [his] mental impairments should not be diminished because of

12

[his] ability to carry out some activities of daily living.” Mackey v. Colvin, No. 1:14-CV-

13

3075-WF, 2015 WL 853791, at *9 (E.D. Wash. Feb. 26, 2015). Moreover, the ALJ did

14

not articulate whether Plaintiff spends a substantial part of his day engaged in these

15

pursuits, nor did he explain how these functions are transferrable to a work setting. See

16

Orn, 495 F.3d at 639. As a result, Plaintiff’s and his family members’ credibility

17

regarding Plaintiff’s mental impairments should not be diminished because of his ability

18

to carry out some activities of daily living. See id.; see also Mackey, 2015 WL 853791,

19

at *9.
Second, the ALJ found that the objective medical evidence fails to provide “strong

20
21

support” for Plaintiff’s and his family members’ allegations of disabling symptoms and

22

limitations. AR at 105. As discussed herein, the Court finds that the ALJ did not provide

23

adequate reasons for rejecting the opinions of Drs. Lessner, Marquardt, and Henderson,

24
25
26
27
28

For example, Plaintiff’s mother and brother both stated that Plaintiff does not complete any household
chores or cook, and Dr. Henderson opined that Plaintiff was completely delusional in stating that he
completes these tasks. AR at 104-05, 690, 692. Additionally, Plaintiff alleged in his disability report
that he needs help undressing and bathing, and that he cannot cook or do household chores due to his
hand tremors. AR at 104, 285.
3

9
17cv1406-MMA (NLS)

1

and failed to adequately explain how Dr. Koretsky’s opinion is entitled to greater weight.

2

The opinions of Drs. Lessner, Marquardt, and Henderson suggest that the severity of

3

Plaintiff’s mental impairments are generally consistent with his and his family’s

4

allegations. As such, inconsistency with medical evidence is not an adequate reason for

5

discrediting Plaintiff or his family members. See Mackey, 2015 WL 853791, at *9.

6
7

Based on the foregoing, the Court OVERRULES Defendant’s objections with
respect to the ALJ’s credibility determinations.

8

CONCLUSION

9

After reviewing the Report and Recommendation in its entirety, the Court finds

10

Judge Stormes’ conclusions are thorough, well-reasoned, and supported by applicable

11

law. Accordingly, the Court ORDERS as follows:

12

1.

13

entirety;

14

2.

15
16
17

The Report and Recommendation [Doc. No. 18] is ADOPTED in its
Defendant’s Objections to the Report and Recommendation [Doc. No. 19]

are OVERRULED;
3.

Plaintiff’s Motion for Summary Judgment [Doc. No. 13] is GRANTED IN

PART;
Defendant’s Cross-Motion for Summary Judgment [Doc. No. 14] is

18

4.

19

DENIED; and

20

5.

21

IT IS SO ORDERED.

22

The Court REMANDS this matter for further proceedings.

Dated: September 5, 2018

23
24
25
26
27
28
10
17cv1406-MMA (NLS)