Guzman v. Berryhill

Filing 30

ORDER :(1) Granting Plaintiff's Motion for Summary Judgment (ECF No. 13 ; (2)Denying Defendant's Motion for Summary Judgment; (ECF No 21 ]; and (3) Remanding to the Social Security Administration for Further Proceedings. Signed by Judge Cathy Ann Bencivengo on 12/20/2018. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Fernanda GUZMAN,

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Case No.: 17-cv-2593-CAB-AGS
Plaintiff,

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v.

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ORDER:

Nancy A. BERRYHILL,

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1. GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT (ECF No. 13);

Defendant.

2. DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT (ECF No. 21); AND

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3. REMANDING TO THE SOCIAL
SECURITY ADMINISTRATION FOR
FURTHER PROCEEDINGS

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Plaintiff seeks disability benefits from the Social Security Administration. In finding
that she did not qualify for those benefits, the Administrative Law Judge concluded that
her diagnosis of Major Depressive Disorder did not have any limitation on her ability to
work. But to arrive at that conclusion, the ALJ ignored the majority of the record, dismissed
her treating physician, and relied on a consulting examiner who saw her before the onset
of most of her symptoms. So plaintiff’s motion for summary judgment must be granted and
the case is remanded to the Social Security Administration for further proceedings.

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BACKGROUND
A. Factual Background

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In 2008, Plaintiff Fernanda Guzman was diagnosed with depression and prescribed

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Zoloft. (See R. 357-64, 502.) Her initial diagnosis followed her pregnancy, the loss of her

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child shortly thereafter, and the death of her mother, all in 2008. (See id. at 503, 506.) In

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2010, she was evaluated by Dr. Romualdo Rodriguez, an examining psychiatrist hired by

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the Social Security Administration when it considered an earlier request for benefits. He

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diagnosed her with Post Traumatic Stress Disorder but concluded that so “long as

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[Guzman] is properly treated for depression and PTSD, she could easily recover from her

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symptoms in the next twelve months.” (Id. at 507.) Accordingly, he determined that she

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was either “able” to complete or “slightly limited” in her ability to complete all work-

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related tasks. (Id.) After the initial treatment in 2008 and her appointment with Dr.

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Rodriguez, the record lacks mental-health treatment records until 2012, although it appears

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she at least intermittently took anti-depressant medication. (See id. at 505, 523, 702.)

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In August 2012, Guzman complained to her doctor, Dr. Nicole Esposito, about

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worsening depression after she was forced to discontinue her Zoloft prescription due to an

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inability to afford it (apparently unaware that she could get it from her health insurer). (See

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id. at 702.) Guzman―whose physical conditions include uncontrolled diabetes—reported

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that there were days “where she doesn’t inject insulin because she hopes that the high

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sugars will make her sick” and complained of “insomnia, poor concentration, poor energy

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and low interest.” (Id.) Dr. Esposito restarted her Zoloft, diagnosed her with Major

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Depression, recurrent severe, and concluded that Guzman’s GAF1 was 45. (Id.) Also in

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The Global Assessment of Functioning is a 100-point mental-health scale for rating

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a patient’s social, occupational, and psychological functioning, with 100 being the highest

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functioning and 1 the least. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir.
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August 2012, Guzman met with Dr. Veronica Gutierrez, who provided counseling and

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diagnosed Guzman with “Major Depressive Disorder, Severe without psychotic features”

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2012) (citation omitted). The first, third, and last GAF ranges are relevant here; the rest are

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included only for comparison:

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 61-70: “Some mild symptoms (e.g., depressed mood and mild insomnia), OR
some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning
pretty well, has some meaningful interpersonal relationships.”
 51-60: “Moderate symptoms (e.g., flat affect and circumlocutory speech,
occasional panic attacks) OR moderate difficulty in social, occupational,
or school functioning (e.g., few friends, conflicts with peers or coworkers).”
 41-50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).”
 31-40: “Some impairment in reality testing or communication (e.g., speech is at
times illogical, obscure, or irrelevant) OR 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 beats up younger children, is defiant at home, and is failing at
school).”
 21-30: “Behavior is considerably influenced by delusions or hallucinations OR
serious impairment in communications or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal preoccupation) OR
inability to function in almost all areas (e.g., stays in bed all day; no job,
home, or friends).”

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Id. (citation omitted; boldfacing added).
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and a “Phase of Life problem.” (Id. at 682.) Dr. Gutierrez listed Guzman’s GAF as 42, her

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prognosis as “Fair,” and ordered Guzman to continue mental-health care. (Id. at 682-83.)

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In September 2012, Guzman saw Dr. Esposito again and complained that she had

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seen no improvement to her depression. (Id. at 710.) Dr. Esposito switched Guzman from

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Zoloft to a 20 mg/day dose of Paxil. (Id. at 636, 710.) In October 2012, Dr. Esposito again

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saw Guzman for depression, and, although Guzman reported improvement, Dr. Esposito

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increased the Paxil dose to 40mg/day. (Id. at 652-53.) Dr. Esposito apparently downgraded

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Guzman’s diagnosis to a moderate and recurrent version of major depressive disorder. (See

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id. at 653.) By her November appointment, Guzman reported improvements and despite

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“some days . . . still feeling depressed,” her “crying spells” were “much better.” (Id. at

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634.)

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In late December 2012, Guzman overdosed by taking handfuls of Vicodin,

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ibuprofen, and paroxetine, among others. (Id. at 523, 526.) This came about as a result of

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an argument she had with her family, although “medical problems and financial

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constraints” were also cited as contributors. (Id. at 514, 523.) She was discharged the next

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day after the 20 mg/day Paxil dose was “restarted,” and she attended “several groups with

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perceived benefit.” (Id. at 532.) Although she “demonstrated very poor insight into the

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seriousness of her suicide attempt,” she reported feeling “good” and the hospital’s doctor

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concluded her “suicidal ideation resolved, and she ceases to be a candidate for involuntary

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hold.” (Id.) The hospital’s physician diagnosed her with Major Depressive Disorder,

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recurrent severe. (Id. at 525.) Her GAF score upon admission was “20 to 25” but improved

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by discharge the following day to “50.” (Id. at 532-33.)

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From there, Guzman returned to mental-health treatment with Dr. Esposito and, on

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a few occasions, with Dr. Gutierrez. The course of treatment is summarized in the table

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below:

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Date

Complaints/Narrative

Diagnosis and Prescription

12/31/2012 “attempted to kill herself with
pills,” “did not plan this”
01/18/2013 “doing much better,” no “SI
passive or active,” “attending a
mental health support groups
three times a week,” main
focus “on her vivid dreams”
02/15/2013 “very concerned about her
nightmares,” “suicide risk
shows some improvement,”
“still with [occasional] SI and
plans”
03/18/2013 “much better with her
depression,” “rates her
depression at a 4/10 (10 being
severe),” “feels tired,” but
“much better motivation”
04/22/2013 “attempted suicide in
(with Dr.
December 2012,” “would not
Gutierrez) have ‘made it’” except “for her
boyfriend”

Record
Pages
“major depression, mod[erate] 602-03
recurrent”
Increase Paxil to 40mg/day
“major depression, mod[erate] 618-19
recurrent”
Paxil 40mg/day
“major depression, mod[erate] 606-07
recurrent”
Increase Paxil 60mg/day “to
target ongoing SI without
intent.”
“major depression, partial
739-40
remission”
Paxil 60mg/day

“Major Depressive Disorder,
Recurrent, Mild”
“Phase of Life problem”
“Parent-Child Relational
Problem”
5/10/2013 “emotionally she feels she is
“major depression, partial
doing well,” “reports [overall] remission”
depression is much improved,” “depression well controlled”
“not had SI in many months”
Paxil 60mg/day
07/12/2013 “still feeling anxious and
“major depression, moderate
depressed,” “very distressed by recurrent”
her dreams,” “very anxious and “Personality d/o NOS”
very perseverative,” “no SI,”
“Anxiety, NOS”
“uncontrolled anxiety and
depression”
decrease Paxil to stop over 3
weeks, begin Lexapro up to
10mg/day over the same
period

872

866-68

858-60

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08/02/2013 “is a little better than last visit
with less depression and
anxiety despite not being able
to change meds,” “stayed on
the paxil,” “no SI,” “feeling
less hopeless”

848-50

11/27/2013

836-38

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01/22/2014

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01/27/2014
(with Dr.
Gutierrez)

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02/15/2014
(with Dr.
Gutierrez)

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11/12/2014

“major depression, moderate
recurrent (with prominent
anxiety)”
“Personality d/o NOS”
“improved control of
depression”
“d/c Paxil and direct switch to
Lexapro 10mg”
“overall she is much better,”
“major depression, moderate
“depressed for briefer time
recurrent (with prominent
periods ‘maybe a few hours or anxiety)”
a day at the most’,” “same with “Personality d/o NOS”
suicidal thoughts”
“Improved with less
interpersonal stressor”
Paroxetine (Paxil) 60mg/day
“much better,” “doing fairly
“major depression, moderate
well”, “severe nightmares”
recurrent (with prominent
when she “forgets to take
anxiety)”
medication”
“Personality d/o NOS”
“Improved with less
interpersonal stressor”
Paxil 60 mg, “add
hydroxyzine 50mg”
“Unhappy,” “Depressed,”
“Major Depressive Disorder,
“Fearful”, “somewhat
Recurrent, Moderate”
disheveled,” “Abnormal” affect “PTSD”
“Phase of Life problem”
“Parent-Child Relational
Problem”
“Frustrated,” “Unhappy,”
“Major Depressive Disorder,
“Depressed,” “Abnormal”
Recurrent, Moderate”
affect
“PTSD”
“Phase of Life problem”
“Parent-Child Relational
Problem”
“re-establish of care,”
“Moderate recurrent major
“nightmares have improved,”
depression”
“still feeling depressed about
“Personality d/o NOS”
her medical conditions,”
“return of depression in the
“crying spells nearly daily,
context of trouble with
medication compliance”

920-22

928-29

930

1066-68

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energy is poor,” “no current
SI”
02/06/2015 “Re-establish of care,” “feeling
worse,” “good friend[]
committed suicide 6 weeks
ago,” “not making plans” to
carry out any SI

Paxil 60mg/day

“Moderate recurrent major
1057-59
depression”
“Personality d/o NOS”
“again return of depression in
the context of good friend
having suicide attempt also off
medications 1 week (though
depression returned while she
was taking her medications)”
“restart” Paxil stepping up to
60mg/day
06/24/2015 “Re-establish of care,” “son
“Moderate recurrent major
1042-44
was attacked,” “stopped her
depression”
medication” b/c “busy,”
“Personality d/o NOS”
“restarted her meds,” “bad
Restart Paxil stepping up to
dreams have come back,”
60mg/day, hydroxyzine 25
“mood is slightly better but still mg, as needed
with fatigue,” “mild
dec[reased] interest,”
“dec[reased] appetite”
08/17/2015 “restarted the medication,”
“Moderate recurrent major
1034-36
“doing well,” “depression is
depression”
somewhat better,” “anxiety and “Personality d/o NOS – very
‘worry all the time,’” “uses
reactive interpersonally”
hydroxyzine” for anxiety and
“Improved depression ongoing
“it is effective”
mild anxiety”
Paxil 60mg/day
10/03/2015 “good days and bad days,”
“Moderate recurrent major
1031-33
“hydroxyzine is very effective depression”
for anxiety,” “struggling with
“Personality d/o NOS – very
vivid dreams,” “fleeting and
reactive interpersonally”
passive SI (no active)”
“ongoing depression some
improvement but not at partial
remission yet”
Paxil 60 mg/day, hydroxyzine
50mg as needed, prazosin 1mg
at bedtime

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After that final appointment in the record, Guzman mentioned to the doctor she saw for her

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physical ailments that her depression had gotten “worse” and that she was “crying

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frequently.” (R. 1028.)

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In addition to those records, Dr. Esposito wrote two letters setting out her thoughts

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on Guzman’s prognosis. On March 26, 2014, she wrote in relevant part that Guzman

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“initiated care in August of 2012 for depression. Her depression worsened over time and

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was not responding well to medication. . . . Since her worsening depression, she [] has been

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unable to return to work due to complex medical and mental health problems.” (Id. at 948.)

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On January 11, 2016, Dr. Esposito indicated that her physical ailments have “been a

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contributing factor[] in her persistent depression. She has had on and off suicidal ideation

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and even had a suicide attempt and psychiatric hospitalization in Dec 2012.” (Id. at 1102.)

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She concluded that the “combination of physical and mental health illness have rendered

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her disabled from work despite her coming to visits and adhering to treatment

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recommendations.” (Id.)

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B. Procedural Background

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In late 2012, Guzman filed an application for Disability Insurance Benefits and

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Supplemental Security Income under Titles II and XVI of the Social Security Act. (See R.

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229-41.) After being denied at the initial and reconsideration stages, (see id. at 74-89, 108-

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26), she argued to an Administrative Law Judge that her physical conditions—including

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vision problems, uncontrolled diabetes, and arthritis—coupled with her mental illnesses

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required a finding that she was disabled. The ALJ assessed some limitations as a result of

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her physical conditions, but concluded that her depression “does not cause more than

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minimal limitation in [Guzman’s] ability to perform basic mental work activities and is

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therefore nonsevere.” (Id. at 28.) So, in considering her capacity to work, the ALJ

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concluded that Guzman could “perform the work-related mental activities required by

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competitive, renumerative work” and rejected the notion that she suffered any restriction

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as a result of her depression. (Id. at 29.) The ALJ specifically rejected the opinions of Dr.

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Esposito and her treatment records.
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Ultimately, the ALJ concluded that Guzman had the capacity to do jobs like dining

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room attendant and hospital cleaner, and thus she did not qualify as disabled. (See id. at

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35.) After the Administration’s Appeals Council declined to hear Guzman’s appeal (see id.

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at 1), the ALJ’s opinion became the agency’s final decision and Guzman appealed that

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decision to this Court. In her appeal, Guzman argues that the ALJ erred by (1) failing to

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conclude her depression and other mental illnesses were severe, (2) failing to consider

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whether Guzman qualified for a disability determination by comparing her impairments to

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several “Listings” of disabling conditions, (3) ignoring the opinions of her treating

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physicians, (4) concluding she was able to do heavier work than she had previously done

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despite finding she could no longer do that past work, and (5) failing to support his

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conclusions about her capacity to work with substantial evidence. She requests that this

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Court reverse the ALJ’s decision and order immediate benefits or, in the alternative,

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remand the case for further proceedings. Because the Court concludes the first and third

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issues dispose with this appeal, it does not address the remainder.

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DISCUSSION
A. Dr. Esposito’s Opinions

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In considering her mental illnesses, the ALJ rejected the opinions of Dr. Esposito.

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“If a treating physician’s opinion is ‘well-supported by medically acceptable clinical and

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laboratory diagnostic techniques and is not inconsistent with the other substantial evidence

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in [the] case record, [it will be given] controlling weight.’” Orn v. Astrue, 495 F.3d 625,

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631 (9th Cir. 2007) (citation omitted). When, as here, the treating physician’s opinion is

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contradicted by another doctor, an ALJ may only reject the treating physician’s opinions

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by “providing specific and legitimate reasons that are supported by substantial evidence.”

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Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citations omitted).

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“Substantial evidence” is less than a preponderance of the evidence but more than a

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scintilla; it “is such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion,” but must be reviewed as a whole in the context of the entire record.

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Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).
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If the ALJ chooses not to give the treating physician’s opinion “controlling weight,”

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the judge must decide what weight to give it after “consider[ing] all of the following

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factors”:

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 length of the treatment relationship and the frequency of examination;
 nature and extent of the treatment relationship;
 supportability (whether the medical opinion includes “supporting
explanations” and “relevant evidence,” particularly “medical signs and
laboratory findings”);
 consistency with the record as a whole;
 specialization (whether the opinion relates to the doctor’s specialty); and
 any “other factors.”

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20 C.F.R. § 404.1527(c)(2)-(6). Although an ALJ need not explicitly go through the list of

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regulatory factors, there must be some indication that he considered each in his analysis.

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See Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017); Hoffman v. Berryhill, No. 16-

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cv-1976-JM-AGS, 2017 WL 361881, at *4 (S.D. Cal. Aug. 24, 2017) (“Trevizo does not

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demand a full-blown written analysis of all the regulatory factors, it merely requires some

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indications that the ALJ considered them.”) report and recommendation adopted by 2017

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WL 4844545 (S.D. Cal. Sept. 14, 2017). Here, the ALJ did not mention or provide any

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indication that he considered the first two categories or any specialization Dr. Esposito―a

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psychiatrist—had in the treatment of depression and mental health. “This failure alone

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constitutes reversible legal error.” See Trevizo, 871 F.3d at 676. But even if the Court were

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to look past this error, the ALJ’s stated reasons2 for rejecting Dr. Esposito’s opinions do

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not rise to the “specific and legitimate” level.

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In its brief before this Court, the United States adds additional reasons the ALJ

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could have, but did not, mention in rejecting Dr. Esposito’s opinions. (See, e.g., ECF

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No. 21, at 13 (arguing that the ALJ could have rejected Dr. Esposito’s opinion as contrary

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to Guzman’s activities of daily living).) But the Court is restricted to the stated reasons

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offered by an agency for its action, and thus does not consider these additional reasons
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1. Physical Conditions as Contributing Factor

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First, the ALJ rejected Dr. Esposito’s opinions because “[t]he evidence does not

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support [her] assertion that [Guzman’s] physical conditions were a contributing factor to

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[Guzman’s] persistent depression, but hospital records showed that [Guzman] took pills

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only after an argument with her family.” (R. 33.) This statement does not track with any

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reasonable reading of the record. The hospital records on which the ALJ relies specifically

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note that she had been “stresse[d] out about bills, family problems, and her own medical

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issues” at the time of her suicide attempt. (Id. at 514; see also 523 (“Stressors include

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numerous medical problems, and financial constraints.”); 526 (“The patient had an

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argument with the family, has had a lot of financial stressors, family problems, and a lot of

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medical issues, and she just wanted to end it all.”).) So the first support the ALJ points to

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for this statement does not support it.

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The ALJ also rejected Dr. Esposito’s statement about Guzman’s contributing

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physical conditions because, at the time of her suicide attempt, Guzman “had been

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noncompliant” with her medications and when “restarted,” her “suicidal ideation

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resolved.” (Id. at 33.) Again, no reasonable reading of the record supports this conclusion.

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Although there is evidence in the record that Guzman was periodically noncompliant with

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her psychiatric medication, there is nothing in the record to suggest Guzman was

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noncompliant at the time of her suicide attempt, other than the fact that she took “a couple

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of Paxil” along with the other drugs in her attempt to kill herself. (See id. at 523.) Indeed,

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her treatment plan from the hospital was to “[c]ontinue Paxil 20mg.” (Id. at 525.) The

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closest the hospital notes come to indicating noncompliance is in the discharge summary,

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where it mentions she was “restarted on Paxil 20 mg by mouth daily,” (id. at 532), but there

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offered for the first time here on appeal. See Garrison v. Colvin, 759 F.3d 995, 1010 (9th

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Cir. 2014) (“We review only the reasons provided by the ALJ in the disability

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determination and may not affirm the ALJ on a ground upon which he did not rely.”).
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is nothing in that which suggests she was noncompliant with her previous 40 mg dose of

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Paxil prior to her suicide attempt. Instead, Dr. Esposito’s notes indicate a few days later

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that she had “good” adherence to her psychiatric medications, (see id. at 602), and Dr.

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Esposito’s notes are the only reason the record indicates any periods of noncompliance,

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albeit at different times from her suicide attempt. (See, e.g., id. at 1042 (6/24/2015 Note:

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“trouble with adherence on/off has been back on for appox 4 weeks”).) So this ground also

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does not serve as a legitimate or specific reason to reject Dr. Esposito’s conclusion that

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Guzman’s physical conditions contributed to her depression, much less to reject her

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opinions en masse.

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Indeed, Guzman’s other medical records repeatedly tie her physical conditions to

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her mental-health treatment. (See, e.g., id. at 702, 866, 872, 928, 930, 1057, 1066.) In short,

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then, no reasonable reading of the record supports rejecting Dr. Esposito’s opinions

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because she opined that Guzman’s physical conditions were a contributing factor to her

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depression.

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2. Impaired Eyesight

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In her 2016 statement, Dr. Esposito wrote that Guzman “had many secondary

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consequences of diabetes with damage to her vision which has limited her employment

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options.” (Id. at 1102.) The ALJ faults that line from Dr. Esposito because it was “wholly

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inconsistent with the hospital records that showed that the claimant continued to drive

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despite impaired eyesight.” (Id. at 33.) The ALJ’s reasoning is not supported by substantial

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evidence in the record.

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The 2012 hospital records indicate that Guzman had been driving despite her

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“markedly impaired eyesight”; in fact the hospital staff reported her to the DMV and child

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protective services as a result. (Id. at 532.) There is nothing in the hospital records that is

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“wholly inconsistent” with Dr. Esposito’s opinion that Guzman had impaired vision or that,

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in Dr. Esposito’s opinion, Guzman’s impaired vision impacted her ability to work. Instead,

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the record is clear that Guzman has substantial vision impairment and every doctor—

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including both of the original consulting doctors for the Social Security Administration
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(see id. at 87, 120)—assessed Guzman occupational limitations as a result of her vision

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impairment. Although the ALJ is free to ultimately disagree with Dr. Esposito as to the

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impact of Guzman’s eyesight limitations or her opinion on whether Guzman is ultimately

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disabled, see Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), every doctor to

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review her medical records concerning her visual impairments agreed with Dr. Esposito

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that Guzman had “damage to her vision” as a “secondary consequence[] of diabetes” and

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thus faced “limited” “employment options.” (See R. 1102.) So it is not legitimate to

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discount Dr. Esposito’s opinion simply because she made a statement which agreed with

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every other doctor on the record, at least not where the ALJ failed to cite to substantial

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evidence to support rejecting that conclusion.

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3. Advocating for Guzman

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Next, without explanation, the ALJ faults Dr. Esposito for “advocating for [Guzman]

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as well as assisting [Guzman’s] attempt to obtain benefits, rather than simply providing

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medical treatment.” (Id. at 33.) “An ALJ may not reject a treating physician’s opinion based

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on the assumption that a treating physician has a natural tendency to advocate for her

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patients but may do so if there is evidence that the physician is in fact acting as an

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advocate.” Hamlin v. Colvin, No. CV 12―6369―JPR, 2013 WL 3708381, at *15 (C.D.

18

Cal. July 12, 2013). Here, although Dr. Esposito opined unfavorably on Guzman’s ability

19

to work, in both letters she did it after explaining, at least in general terms, the basis for her

20

belief. Indeed, in the 2016 letter which the ALJ appears to be referencing, she explained

21

that Guzman’s “financial and social stressor of not being able to support herself have

22

limited her ability to recover from [her] deep depression” and therefore Dr. Esposito

23

“believe[d] that having this social safety net w[ould] allow [Guzman] to focus on

24

improving her health.” (R. 1102.) Thus, Dr. Esposito’s opinion is garden variety concern

25

from a physician seeking the path most likely to help her patient recover from an illness.

26

There is no evidence Dr. Esposito agreed to advocate on Guzman’s behalf in a manner such

27

that her objectivity was compromised or helped Guzman fill out any of her disability

28

paperwork. Cf. Hamlin, 2013 WL 3708381, at *15 (and cases cited there). Accordingly,
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without some explanation as to why the ALJ believed Dr. Esposito was engaged in

2

objectivity-compromising advocacy, this ground is not supported by substantial evidence.

3

4. Failure to Make an Appointment

4

The ALJ’s next basis for rejecting Dr. Esposito’s opinions is perplexing. He states

5

that “though Dr. Esposito indicated that treatment started in November 2013, the evidence

6

indicated that the claimant was referred prior to that time and she failed to follow up until

7

after the November 6, 2013 visit for physical complaints.” (R. 34.) But the ALJ does not

8

cite where Dr. Esposito made such a statement. It is not in her letters or the appointments

9

surrounding that time; in both letters, she mentions that treatment began in 2012 and in the

10

earlier letter included the greater specificity that it began in August 2012. (See id. at 948,

11

1102.). Nor does the ALJ make any sense of his statement given the long history of

12

treatment with Dr. Esposito prior to November 2013. See table supra. In any event,

13

whatever the ALJ meant by this basis, it is not supported by substantial evidence.

14

5. Dr. Rodriguez’s Assessment

15

Finally, the ALJ gave “some weight” to Dr. Rodriguez’s 2010 report which found

16

that Guzman was only “slightly limited” or not limited at all in every mental-health aspect

17

and concluded that so “long as [Guzman] is properly treated for depression and PTSD, she

18

could easily recover from her symptoms in the next twelve months.” (Id. at 507.) Although

19

he does not explicitly suggest he is rejecting Dr. Esposito’s opinions because of the tension

20

between her conclusions and Dr. Rodriguez’s conclusions, even if he had, Dr. Rodriguez’s

21

report would not serve as substantial evidence to reject Dr. Esposito’s opinions. Although

22

a well-supported opinion of an examining physician can be sufficient to be substantial

23

evidence to reject a treating physician’s opinion, here the ALJ’s reliance on Dr.

24

Rodriguez’s 2010 report falls short. See Holohan v. Massanari, 246 F.3d 1195, 1202 (9th

25

Cir. 2001).

26

Dr. Rodriguez’s examination and report predates Guzman’s documented mental

27

health decline by more than two years. He did not treat or examine her after her 2012

28

suicide attempt or the periods of suicidal ideation that came afterwards. Likely because of
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the time frame he met with her, he did not diagnose her with any depressive disorder,

2

despite the fact that every doctor (the hospital’s physicians, Dr. Guiterriez, and Dr.

3

Esposito) to treat her from 2012 on diagnosed her with Major Depressive Disorder, in

4

almost every case severe or moderate in intensity. See Holohan, 246 F.3d at 1206 (rejecting

5

an examining physician’s report whose diagnosis was “flatly contradicted” by the record

6

and the treating physician). Finally, as in Holohan, Dr. Rodriguez’s optimistic prediction

7

that Guzman’s mental health could recover with twelve months of treatment turned out to

8

be demonstrably false, as the treatment history shows. See id. at 1206, 1206 n.7 (noting

9

that the examining physician’s prediction that symptoms would “remit within six months

10

to a year” with proper treatment “was not borne out” as shown by treatment notes). So,

11

even allowing that the ALJ may have implicitly relied on Dr. Rodriguez’s dated report to

12

reject Dr. Esposito’s much more recent conclusions, this basis is also not a specific and

13

legitimate reason supported by substantial evidence. See id. at 1207 (rejecting that an ALJ

14

may rely on “the medical opinions of examining and reviewing physicians . . . to the

15

exclusion of [a treating physician’s] more recent opinion” concerning depression,

16

especially where the treating physician “cared for [claimant] over a period of time and . . .

17

provided an opinion supported by explanation and treatment records”).

18

B. The Severity Determination

19

In a related issue, the ALJ also erred where he concluded Guzman’s depression was

20

not severe. When ruling on an application for benefits, the Administration uses a five-step

21

process. See Popa v. Berryhill, 872 F.3d 901, 905-06 (9th Cir. 2017). The second and fourth

22

steps are relevant here. At the second step, the ALJ must determine whether an impairment,

23

or combination of impairments, is “severe.” To show severity, the claimant’s burden is

24

slight. She is required only to show that the impairment has more than a minimal effect on

25

her ability to work. 20 C.F.R. § 404.1521. In fact, because the Step Two inquiry is a “de

26

minimis screening device used to dispose of groundless claims,” an ALJ may reject a

27

medically severe impairment only when that conclusion is “clearly established by medical

28

evidence.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (alterations and citations
15
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1

omitted). Then, at Step Four, the ALJ must evaluate the applicant’s residual functional

2

capacity—that is, “the most [work she] can still do despite [her] limitations.” 20 C.F.R.

3

§ 416.945(a)(1). At this stage, the ALJ is required to compile all impairments, whether

4

severe or non-severe, and determine what impact they have on her ability to work. See

5

Webb, 433 F.3d at 687. When reviewing a Step-Two severity determination, this Court

6

must affirm the ALJ’s conclusion so long as he offered “substantial evidence” as support.

7

Webb, 433 F.3d at 687.

8

The ALJ failed to offer substantial evidence to support his conclusion Guzman’s

9

depression had only a minimal effect on her ability to work. First, the ALJ reasoned that

10

when under the care of Paxil, Guzman’s depression improved and her suicidal ideations

11

resolved, and that she was noncompliant at times, including at the time of her suicide

12

attempt. But that is not supported by a review of the records. As set out above, the ALJ’s

13

statements that she was noncompliant with her treatment plan at the time of her suicide

14

attempt is not supported by substantial evidence. See supra.

15

But even reviewing the rest of the record, Guzman was frequently compliant with

16

medication when her depression seemingly worsened. Leading up to her suicide attempt,

17

she was initially placed on Zoloft in August 2012, but did not report any improvement for

18

a month and so was switched to Paxil in September. (See R. 702, 710.) In October, she

19

reported some improvement and the Paxil was increased, leading to further improvement

20

in November 2012. (R. 652-54.) Despite this improvement and her increased Paxil

21

prescription, Guzman attempted suicide about a month after reporting improvement. (Id.

22

at 523.)

23

Indeed, even when her medications were increased after the suicide attempt, it took

24

her months―from the suicide attempt in December 2012 until March 2013—before her

25

doctor indicated that she was becoming stable and that her condition was in “partial

26

remission.” (See R. 739-40.) And then, after five months of apparent improvement, she had

27

another decline in July 2013, (see id. at 858-60), before another period of apparent

28

improvement. And then months later, albeit after several periods of non-treatment, she had
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three more periods of decline. (See id. at 1066-68, 1057-59, 1042-44.) In many of her

2

periods of decline, she was on a 40mg or 60mg/day dose of Paxil and was compliant with

3

her medication. (Compare id. at 602 (12/31/2012: “good” compliance); 618 (1/18/2013:

4

“good” compliance); 606 (2/15/2013: “good” compliance); 858 (7/12/2013: “good”

5

compliance); with 1066 (11/12/2014: “she states: ‘I forget 2-3 weeks’”); 1057 (2/6/2015:

6

“been off her medications x 1 week”); 1042 (6/24/2015: “trouble with adherence on/off”).

7

So the ALJ’s contention that compliant treatment with Paxil by itself reduced her

8

depression’s impact to a no-more-than-minimal effect on her ability to work is not

9

supported by the record. And even if the record bore out such a conclusion, the Ninth

10

Circuit has repeatedly remarked that “it is a questionable practice to chastise one with

11

mental impairment for the exercise of poor judgment in seeking rehabilitation” and that it

12

is inappropriate to “punish the mentally ill for occasionally going off medication”

13

especially if one can attribute part of the reason for noncompliance to the “underlying

14

mental afflictions.” Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014) (quotation

15

marks omitted).

16

Next, the ALJ mentions that, in a single record for a May 2015 medical checkup, her

17

normal doctor noted that a “[s]tandardized depression screening” yielded “no significant

18

symptoms as indicated by a PHQ2 score that is less than 3.” (R. 1048, see also id. at 28.)

19

That is an accurate picture of that particular medical record. But “[c]ycles of improvement

20

and debilitating symptoms are a common occurrence, and in such circumstances it is error

21

for an ALJ to pick out a few isolated instances of improvement over a period of months or

22

years and to treat them as a basis for concluding a claimant is capable of working.”

23

Garrison, 759 F.3d at 1017. “Rather than describe [Guzman’s] symptoms, course of

24

treatment, and bouts of remission, and thereby chart a course of improvement,” the ALJ

25

improperly singled out a single test from a non-mental-health related visit to conclude that

26

her depression would have no more than a minimal effect on her ability to work. See id. at

27

1018; see also Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (“The fact that a

28

person suffering from depression makes some improvement ‘does not mean that the
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person’s impairment no longer seriously affects his ability to function in a workplace.’”

2

(alterations and citations omitted)).

3

Finally, the ALJ noted that her activities of daily living were inconsistent with a

4

severe mental illness. Specifically, he noted that she “continues to care for her special needs

5

son”; “is able to perform routine household chores with assistance”; “goes to the casino

6

three times a week with friends and plays the slot machines”; has “a good relationship with

7

her family, relatives, friends, neighbors and others”; “runs errands, goes to the store, cooks

8

and makes snacks”; “remains independent in self-care including dressing and bathing

9

herself”; and “was able to leave home alone, handle her own cash and pay her own bills.”

10

(R. 29.) Some of this analysis is problematic, as the ALJ relies on older records for some

11

of her capabilities—including the 2010 psychiatric evaluation—which contrasted starkly

12

with her testimony at the hearing in this case. (See, e.g., id. at 52 (discussing her special

13

needs son, “[h]e practically . . . tak[es] care of me now”); 59 (testifying to “lots of problems

14

with her [daughter] right now”).) But more importantly, the Ninth Circuit has repeatedly

15

warned about the dangers of considering a claimant’s daily activities without the necessary

16

context to determine if they truly rebut the claimed severity of an impairment. See, e.g.,

17

Trevizo, 871 F.3d at 676; 682 (“[M]any home activities are not easily transferable to what

18

may be the more grueling environment of the workplace, where it might be impossible to

19

periodically rest or take medication.” (quotation marks omitted)). Here, the ALJ did not

20

explain how these relatively mundane daily activities make it so that her Major Depressive

21

Disorder and her, at least occasional, daily crying bouts would have no more than a minimal

22

impact on her ability to work. See id.

23

Finally, the Court notes that following her suicide attempt, every doctor who worked

24

with her on mental health diagnosed Guzman with Major Depressive Disorder, with the

25

severity typically being either moderate recurrent or severe recurrent. That diagnosis by

26

itself is difficult to square with a finding that her depression is non-severe. See O’Connor-

27

Spinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016) (pointing out that it was “nonsensical”

28

for the ALJ to “decide[] that ‘major depression, recurrent severe’ isn’t a severe
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1

impairment,” since “the diagnosis, by definition, reflects a practitioner’s assessment that

2

the patient suffers from ‘clinically significant distress or impairment in social,

3

occupational, or other important areas of functioning.’” (citations omitted)); American

4

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Major

5

Depressive Disorder (rev. 5th ed. 2013) (“DSM V”) (requiring that the “symptoms cause

6

clinically significant distress or impairment in social, occupational, or other important areas

7

of functioning”). Even a “moderate” severity is required to be more than a “minor

8

impairment in social or occupational functioning.” DSM V, supra, Specifiers for

9

Depressive Disorders. See also O’Connor, 832 F.3d at 897 (“We have not found a

10

published opinion from any circuit in which an ALJ declared that major depression was

11

not a severe impairment, although two unpublished decisions soundly reject this

12

assertion.”).

13

And so the ALJ erred here as well. But any error in “neglecting to list [an

14

impairment] at Step 2” is harmless when the “ALJ extensively discussed [the claimant’s

15

impairment] at Step 4 of the analysis.” Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)

16

(citation omitted). Other than the already rejected analysis of Dr. Esposito’s opinions, the

17

ALJ never mentioned Guzman’s depression in his Step Four analysis and provided no

18

limitations based on her depression. In passing during his Step Two analysis, the ALJ

19

concluded that Guzman “has the mental residual functional capacity to perform work-

20

related mental activities required by competitive, renumerative work,” but provided no

21

further discussion or analysis of her impairment to explain why. So the error here was not

22

harmless.

23

C. Remedy

24

“The decision whether to remand a case for additional evidence, or simply to award

25

benefits, is within the discretion of the court.” Trevizo, 871 F.3d at 682 (alterations and

26

citation omitted). Courts generally remand for calculation of benefits when: (1) the record

27

is “fully developed,” (2) the ALJ failed to provide “legally sufficient reasons for rejecting

28

evidence,” and (3) crediting the rejected evidence as true, the ALJ would be required to
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1

find the claimant disabled. Id. at 682-83 (citation omitted). But when “the record as a whole

2

creates serious doubt as to whether the claimant is, in fact, disabled,” the court should

3

remand for further proceedings. Garrison, 759 F.3d at 1021. “If additional proceedings can

4

remedy defects in the original administrative proceeding, a social security case should be

5

remanded for further proceedings.” Trevizo, 871 F.3d at 682 (alterations and citation

6

omitted).

7

The Court will remand this case for additional proceedings, rather than a calculation

8

of benefits. First, the record is insufficiently developed. Although crediting Dr. Esposito’s

9

opinion might require that Guzman be found disabled, it is unclear when that disability

10

would have begun. In order to be eligible for Title II benefits, Guzman must be found to

11

have been disabled prior to November 7, 2012, while she would be eligible for Title XVI

12

benefits regardless of when she became disabled. Since the ALJ here found that she was

13

not disabled at any time from her application to the date of his decision, he did not parse

14

out that question and the parties’ supplemental briefing on the issue was not sufficient to

15

allow the Court to decide the question in the first instance. (See ECF Nos. 25 & 26.)

16

Moreover, the Court is not convinced that the record is sufficiently clear as to

17

whether Guzman is disabled to remand for direct calculation of benefits. Although the

18

failure to include her depression as a severe mental impairment requires remand and the

19

ALJ failed to give Dr. Esposito sufficient weight, there are contrary indications in the

20

record that might still lead to a conclusion that she is not disabled. For instance, the Court

21

notes that Guzman went long stretches of time without treatment, was labeled as a “no

22

show” to many appointments, and failed to appear at a psychiatric evaluation in 2016 at

23

the order of the Social Security Administration. (See R. at 1103 (noting Guzman failed to

24

appear at a March 29, 2016 psychiatric evaluation).) The Court is particularly concerned

25

about Guzman’s failure to appear at the 2016 evaluation, as a neutral evaluation by a non-

26

treating physician had not been done in six years. Guzman’s failure to appear at that

27

evaluation robbed from the Administration and the ALJ information that may have been

28
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1

critical to its review of the record and the Court is disinclined to reward a claimant for

2

failure to take part in the Administration’s process.

3
4

And so the Court opts to return the entire case to the Social Security Administration
for additional proceedings.

5

CONCLUSION

6

Thus, the Court GRANTS Guzman’s summary judgment motion (ECF No. 13),

7

DENIES defendant’s cross-motion for summary judgment (ECF No. 21), and REMANDS

8

the case for additional proceedings.

9

Dated: December 20, 2018

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