Devery v. Commissioner Social Security Administration
Filing
27
Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is REVERSED AND REMANDED for further proceedings consistent with this Opinion and Order. Signed on 8/12/2019 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID D.1,
Case No. 3:18-cv-827-SI
Plaintiff,
OPINION AND ORDER
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant.
George J. Wall, EAST PDX LAW, 825 NE 20th Avenue, Suite 330, Portland, OR 97232. Of
Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Thomas M. Elsberry, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
David D. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying Plaintiff’s application for
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. When applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
PAGE 1 – OPINION AND ORDER
Supplemental Security Income (“SSI”) pursuant to Title XVI of the Social Security Act. This
Court has jurisdiction to review the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). For
the following reasons, the Commissioner’s decision is REVERSED and REMANDED for
further proceedings.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
PAGE 2 – OPINION AND ORDER
BACKGROUND
A. Plaintiff’s Application
Plaintiff was born September 21, 1972. AR 181. He graduated from high school, attended
four years of college (but did not graduate), and speaks English. AR 185, 695, 94. At the time of
his alleged disability onset, Plaintiff was 42 years old. AR 254. Before his alleged disability
onset, his most recent full-time employment was in 2002, when he worked in a mailroom as an
administrative temporary employee. AR 39-40, 202.
Plaintiff alleges disability due to major depressive disorder, post-traumatic stress
disorder (“PTSD”), anxiety, and autism spectrum disorder. AR 52, 254. On May 13, 2015,
Plaintiff protectively filed his SSI application, along with a Title II application for disability
insurance benefits (“DIB”), alleging a disability start date of May 13, 2002. AR 181-92. On
March 7, 2017, Plaintiff withdrew his DIB claim and amended his alleged disability onset date to
May 13, 2015. AR 254.2
The Commissioner denied Plaintiff’s application initially and upon reconsideration, and
on December 14, 2015, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). AR 114. Plaintiff, represented by counsel, appeared and testified at a hearing held on
March 10, 2017. AR 36. In April 2017, the ALJ issued a written decision denying Plaintiff’s
application. AR 13-27. Plaintiff now seeks judicial review of that decision.
2
The ALJ’s opinion appears to have overlooked Plaintiff’s amendment, which withdrew
Plaintiff’s DIB claim and amended his alleged disability onset date. Before this Court, both
parties argue Plaintiff’s claims as amended. Accordingly, the Court’s review is based on Plaintiff
asserting only a claim for SSI based on an alleged disability onset date of May 13, 2015.
PAGE 3 – OPINION AND ORDER
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
PAGE 4 – OPINION AND ORDER
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
PAGE 5 – OPINION AND ORDER
C. The ALJ’s Decision
At step one of the five-step sequential analysis, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since May 13, 2002. AR 15. At step two, the ALJ found
that Plaintiff has the following severe impairments: depression, an anxiety disorder, an autism
spectrum disorder, PTSD, and a substance addiction disorder. AR 15. At step three, the ALJ
found that none of Plaintiff’s impairments—or combinations of impairments—meet or equal the
severity of the “listed” impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 16.
The ALJ next assessed Plaintiff’s RFC and found that Plaintiff could perform work “at all
exertional levels but with the following nonexertional limitations: the claimant is limited to
simple, routine, and repetitive tasks and simple work-related decisions. The claimant can have
occasional contact with coworkers and the public.” AR 18. At step four, the ALJ noted that the
Plaintiff had no past relevant work. AR 25. At step five, the ALJ asked a vocational expert
(“VE”) whether jobs exist in the national economy for an individual with Plaintiff’s age,
education, work experience, and assessed RFC. The VE testified that Plaintiff could perform jobs
that exist in significant numbers in the national economy, including Hospital Housekeeper, Floor
Cleaner, and Pressure Washer. AR 26. Accordingly, the ALJ found Plaintiff “not disabled.” Id.
DISCUSSION
Plaintiff contends that the ALJ erred by: (1) improperly rejecting the opinion of
examining psychologist Caleb Burns, Ph.D.; (2) improperly rejecting the opinion of examining
psychologist Karla Causeya, Psy.D.; and (3) improperly rejecting the opinion of treating
physician’s assistant Sandra Ford, P.A. The ALJ gave “little weight” to the opinions of
Dr. Burns, Dr. Causeya, and Ms. Ford, all of whom concluded that Plaintiff’s assessed mental
impairments rendered him disabled. AR 22-23, 473, 707, 711. The ALJ gave “great weight,”
PAGE 6 – OPINION AND ORDER
however, to two non-examining state agency psychological consultants, both of whom assessed
Plaintiff’s impairments as less restrictive than did Dr. Burns, Dr. Causeya, or Ms. Ford. AR 24.3
A. Standards for Reviewing Medical Opinions
1. Opinions by Physicians
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle, 533 F.3d at 1164. The ALJ generally must accord
greater weight to the opinion of an examining physician than that of a non-examining physician.
Orn, 495 F.3d at 631. An ALJ may, however, reject an examining, non-treating physician’s
opinion “in favor of a nonexamining, nontreating physician when he gives specific, legitimate
reasons for doing so, and those reasons are supported by substantial record evidence.” Roberts v.
Shalala, 66 F.3d 179, 184 (9th Cir. 1995), as amended (Oct. 23, 1995).
“[S]pecific, legitimate reasons” for rejecting a physician’s opinion may include its basis
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, inconsistency with a claimant’s daily activities, or
that the opinion is brief, conclusory, and inadequately supported by clinical findings. Bray, 554
F.3d at 1228; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, F.3d at 104243. An ALJ errs by rejecting or assigning minimal weight to a medical opinion “while doing
nothing more than ignoring it, asserting without explanation that another medical opinion is more
persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis” for
the ALJ’s conclusion. Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014).
The ALJ employs the term “given little weight” to describe his assessments of the three
source opinions at issue, and Plaintiff characterizes the ALJ’s assessments as “rejecting” those
opinions. The Ninth Circuit uses these terms interchangeably. See, e.g., Carmickle v. Comm'r,
Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008)
3
PAGE 7 – OPINION AND ORDER
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Id. at 1012 (quoting Reddick, 157 F.3d 715, 725 (9th Cir. 1998)).
In other words, “[t]he ALJ must do more than offer his conclusions. He must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d
at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
2. Opinions by a Physician’s Assistant
Effective March 27, 2017, the Social Security Administration amended its regulations
and Social Security Rulings (“SSRs”) relating to “acceptable medical sources” and “nonacceptable medical sources” or “other medical sources.”4 Most of these changes were effective
only for claims filed after March 27, 2017. The Administration, however, implemented a revised
version of 20 C.F.R. § 404.1527 to govern claims filed before March 27, 2017. Because
Plaintiff’s claim was filed before March 27, 2017, and the ALJ issued his opinion after
March 27, 2017, the revised version of 20 C.F.R. § 404.1527 governs Plaintiff’s claims.
Under the regulations in effect at the time of Plaintiff’s application, only licensed
physicians and certain other qualified specialists are considered acceptable medical sources. 20
C.F.R. § 404.1513(a); see also Social Security Ruling (“SSR”) 06-03p, available at 2006
WL 2329939 (Aug. 9, 2006) (defining “acceptable medical sources” as licensed physicians,
licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified
4
The Commissioner rescinded SSR 06-03p, broadened the definition of acceptable
medical sources to include Advanced Practice Registered Nurses (such as nurse practitioners),
audiologists, and physician assistants for impairments within their licensed scope of practice, and
clarified that all medical sources, not just acceptable medical sources, can provide evidence that
will be considered medical opinions. See 20 C.F.R. §§ 404.1502, 416.902; 82 F. Reg. 8544; 82 F.
Reg. 15263.
PAGE 8 – OPINION AND ORDER
speech pathologists). Health care providers who are not acceptable medical sources, such as
physician assistants, are still considered “medical sources,” and the ALJ can use these “other”
medical source opinions in determining the “severity of the individual’s impairment(s) and how
it affects the individual’s ability to function.” 20 C.F.R. § 404.1513(d).
The ALJ also should consider the same factors, if relevant under the facts of the
particular case, to evaluate the opinions of both non-acceptable and acceptable medical sources.
20 C.F.R. § 404.1527(f)(1). These factors include: (1) the examining relationship (more weight is
generally given to an examining source over a non-examining source); (2) the treatment
relationship (more weight is generally given to opinions from treating sources because “these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s)”); (3) the length of the treatment relationship
and frequency of examination; (4) the nature and extent of the treatment relationship (more
weight is generally given to sources with more knowledge about the claimant’s impairments);
(5) supportability (the degree to which a medical source presents relevant evidence, including
medical signs and testing, and explanations to support an opinion); (6) consistency with the
medical record as a whole; (7) specialization (more weight is generally given to specialists’
opinions about medical issues related to their areas of specialty); and (8) other relevant factors
(including knowledge about social security “disability programs and their evidentiary
requirements” and “the extent to which a medical source is familiar with the other information in
[the claimant’s] case record”). Id. § 404.1527(c). The ALJ “should explain the weight given to
opinions from [medical] sources or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the [ALJ’s]
reasoning.” Id. § 404.1527(f)(2).
PAGE 9 – OPINION AND ORDER
The fact that a source is an acceptable medical source sometimes entitles that source’s
opinions to more weight than the opinions from other medical sources. SSR 06-03p.
Nonetheless, in certain instances, after applying the factors for weighing opinion evidence, and
ALJ properly may find that an opinion from a medical source who is not an acceptable medical
source outweighs the opinion of the acceptable medical source:
For example, it may be appropriate to give more weight to the
opinion of a medical source who is not an acceptable medical
source if he or she has seen the individual more often than the
treating source, has provided better supporting evidence and a
better explanation for the opinion, and the opinion is more
consistent with the evidence as a whole.
20 C.F.R. § 404.1527(f)(1).
An ALJ may not reject the competent testimony of other medical sources without
comment. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the competent
testimony of “other” medical sources, the ALJ must give “reasons germane to each witness for
doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r of
Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). The ALJ also may “draw inferences logically
flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,
either individually or in the aggregate.” Molina, 674 F.3d at 1115 (quoting Nguyen, 100 F.3d
at 1467 (9th Cir. 1996)). This error may be harmless “where the testimony is similar to other
testimony that the ALJ validly discounted, or where the testimony is contradicted by more
reliable medical evidence that the ALJ credited.” See id. at 1118-19.
PAGE 10 – OPINION AND ORDER
B. The Medical Opinions in this Case
1. Dr. Burns’ Opinion
Dr. Burns conducted a psychodiagnostic evaluation of Plaintiff in May 2015. AR 462-74.
Dr. Burns’ opinion was based on an interview with Plaintiff, a review of his medical records, and
standardized psychological testing including the Personality Assessment Inventory (“PAI”), the
Patient Health Questionnaire-9, the Mood Assessment Scale, the Generalized Anxiety Disorder-7
Scale, The Beck Anxiety Inventory, and the Word Reading Subtest of the Wide Range
Achievement Test-4. AR 462. Dr. Burns diagnosed Plaintiff as “chronically mentally ill” with
“Major Depression and PTSD.” AR 473-74. Dr. Burns explained the extent and effects of
Plaintiff’s assessed impairments:
Clearly because of his major depression and PTSD symptoms
[Plaintiff] is not employable in any competitive work setting for at
least the next 12 months. If he is placed in a work setting, he will
be unable to adhere to even minimal standards of attendance, will
be unable to interact with fellow employees or with the general
public without interference from psychologically-based symptoms,
will be unable to accept instructions and respond appropriately to
criticism from supervisors, etc. Even personal hygiene is an
enormous challenge for him and he has not taken a shower or bath
this year, cannot remember when he last brushed his teeth, and he
does no housework at all.
AR 473. Dr. Burns indicated that he would “be very interested in reviewing any
information at all which conflicts with my views regarding [Plaintiff’s] lack of employability for
the foreseeable future.” Id.
2. Dr. Causeya’s Opinion
Dr. Causeya conducted a psychodiagnostic evaluation of Plaintiff in February 2017.
AR 693-707. Dr. Causeya interviewed Plaintiff and his mother, gave Plaintiff a mental status
examination, reviewed Plaintiff’s medical records, and conducted standardized psychological
testing, including the Wechsler Adult Intelligence Scale, fourth edition and a PAI. Dr. Causeya
PAGE 11 – OPINION AND ORDER
diagnosed Plaintiff with Autism Spectrum Disorder, Major Depressive Disorder, PTSD, and
Opioid Use Disorder. AR 693, 706. Dr. Causeya concluded that Plaintiff was “unable to obtain
or maintain gainful employment” based upon her findings. AR 707.
In her Mental Residual Functional Capacity Assessment, Dr. Causeya opined that
Plaintiff had moderately severe limitations in the following areas: an ability to understand and
remember short and simple repetitive instructions; an ability to carry out detailed instructions; an
ability to sustain an ordinary routine without special supervision; an ability to work in
coordination with or proximity to others without being distracted; an ability to make simple
work-related decisions; an ability to complete a normal workday and work week without
interruptions form psychologically-based symptoms and to perform at a constant pace without an
unreasonable number and length of rests; an ability to interact appropriately with the general
public or customers; an ability to accept instructions and respond appropriately to criticism from
supervisors; an ability to maintain socially appropriate behavior and to adhere to basic standards
of neatness and cleanliness; an ability to respond appropriately to expected or unexpected change
in the works setting and routine; and an ability to travel in unfamiliar settings and use public
transportation. AR 708-09, 741.
3. Ms. Ford’s Opinion
Ms. Ford treated Plaintiff regularly for more than two years. Ms. Ford concurred with
diagnoses and opinions of Drs. Burns and Causeya’s regarding Plaintiff’s limitations. AR 71112. Ms. Ford noted that while Plaintiff “has made progress during his treatment . . . he continues
to suffer from dysphoric mood, anxiety, social isolation, distractibility, confusion, and bouts of
suicidal ideation. AR 712 Ms. Ford opined that Plaintiff was unable to work “due to the severity
of PTSD and depressive symptoms, coupled with his low average IQ.” AR 711.
PAGE 12 – OPINION AND ORDER
C. The ALJ’s Evaluation of Plaintiff’s Providers
The ALJ rejected the opinions of Drs. Burns and Causeya and P.A. Ford for the same
reasons, using nearly identical text. The Court will thus discuss together the ALJ’s rationale for
rejecting the opinions of all three providers.
The ALJ gave the medical opinions little weight for the following reasons (taken from the
section discussing Dr. Burns’ opinion):
The assessment itself does not comport with the overall medical
evidence record, including an absence of psychiatric
hospitalizations, some symptom improvement with sobriety and
medication compliance and indications in two separate
psychological consultative examinations of the claimant
exaggerating his psychological problems. Additionally, as noted
above, [each provider’s] assessment also does not comport with the
claimant’s ability to attend college courses, care for his father or
teach his niece piano or with notes that he colored his hair, met up
with friends and attended a Christmas party as well as a concert.
AR 22 (citations omitted).5 These reasons are discussed in turn.
1. Absence of Psychiatric Hospitalizations
The ALJ did not explain why psychiatric hospitalization was necessary for any of the
discounted medical opinions to be given more weight. The Commissioner did not respond to
5
For Drs. Burns and Causeya, the ALJ added the additional reason that the doctors only
conducted a one-time examination. For Dr. Burns, the ALJ added that Dr. Burns’ evaluation was
conducted based on a referral from a homeless advocacy organization. The Commissioner
concedes that the latter reason is not a valid reason to discount Dr. Burns’ opinion. The
Commissioner also concedes that the fact that Drs. Burns and Causeya only conducted a onetime examination is not a proper basis, standing alone, to discount their opinions, but notes that
the extent and nature of the provider’s relationship with Plaintiff is a “legitimate factor” the ALJ
could consider. The ALJ, however, gave great weight to the reviewing physicians who had never
seen Plaintiff because those physicians had reviewed records and thus had a “longitudinal” view
of Plaintiff’s condition. The ALJ did not discuss, however, the fact that Drs. Burns and Causeya
also reviewed additional medical records. Nor did the ALJ discuss whether Ms. Ford’s long-term
treating relationship gave her a longitudinal view of Plaintiff’s condition, or whether Dr.
Causeya’s interview of Plaintiff’s mother provided similar information. Accordingly, this reason
was not specific, legitimate, or germane.
PAGE 13 – OPINION AND ORDER
Plaintiff’s argument that a lack of psychiatric hospitalizations is not a legitimate reason to
discount a medical provider’s opinion. Although failure to seek treatment may be a reason to
discount the severity of an alleged impairment, Plaintiff received long-term and significant
mental health treatment both before and after his alleged disability onset date. Before his alleged
disability onset date he was treated in the emergency room where he presented as “agitated,
paranoid, hollering out, [and] delusional.” AR 260. Although the ALJ found “some”
improvement with Plaintiff’s symptoms since his hospitalization, the ALJ did not find significant
or substantial improvement during the alleged disability period. Plaintiff continues to receive
significant mental health treatment, including several prescription medications, and requires
assistance in certain daily living tasks.
When a plaintiff has received mental health treatment, courts regularly reject a lack of
psychiatric hospitalization as a specific and legitimate reason to discount a medical provider’s
opinion. See, e.g., Morales v. Berryhill, 239 F. Supp. 3d 1211, 1216 (E.D. Cal. 2017) (“[T]hat
plaintiff was not psychiatrically hospitalized does not mean that he did not have a mental health
impairment that prevented him from working.”); Finn v. Astrue, 2013 WL 501661, at *5 (C.D.
Cal. Feb. 7, 2013) (“[T]he conclusion that the opined mental limitations are not supported
because Plaintiff was not hospitalized for mental health treatment is unfounded.”).
2. Symptom Improvement
Plaintiff argues that his limited symptom improvement is not a legitimate basis for
discounting any of the three opinions. Symptom improvement must be weighed within the
context of an “overall diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th
Cir. 2001) (“That a person who suffers from severe panic attacks, anxiety, and depression makes
some improvement does not mean that the person’s impairments no longer seriously affect her
ability to function.”). The relevant question is not whether Plaintiff had “some symptom
PAGE 14 – OPINION AND ORDER
improvement,” but whether Plaintiff’s improved condition is contradictory to the limitations as
opined by the three providers.
Ms. Ford expressly noted Plaintiff’s improvement, but stated that despite his “progress
during his treatment” Plaintiff “continues to suffer dysphoric mood, anxiety, social isolation,
distractibility, confusion and bouts of suicidal ideation.” AR 712. Further, Drs. Burns
and Causeya conducted several objective tests before reaching their opinions. These tests
evaluated Plaintiff’s present condition, included his limited improvement. Additionally, Plaintiff
continued to require extensive mental health treatment and continued to demonstrate challenges,
such as never brushing his teeth and very rarely bathing. The ALJ also failed to quantify or
explain the level of “some” improvement. Accordingly, Plaintiff’s limited symptom
improvement is not a specific, legitimate reason, supported by substantial evidence in the record,
to discount the opinions of Drs. Burns or Causeya. It also is not a germane or proper reason to
discount Ms. Ford’s opinion, particularly when she specifically recognized Plaintiff’s limited
improvement in reaching her opinion.
3. Plaintiff Exaggerating his Psychological Problems
The ALJ notes that the record shows “indications in two separate psychological
consultative examinations of the claimant exaggerating his psychological problems.” AR 22.
Although the ALJ did not cite to the record, it appears that he was alluding to the PAI
administered by Dr. Burns and the PAI administered by Dr. Causeya.6 Each of these doctors
expressly noted in their reports that Plaintiff’s PAIs indicated some possible exaggeration.
Nonetheless, each doctor, after conducting other objective tests, reviewing medical records, and
6
In their respective briefs, Plaintiff assumes—and Commissioner does not dispute—
these references.
PAGE 15 – OPINION AND ORDER
conducting interviews of Plaintiff and, in the case of Dr. Causeya, Plaintiff’s mother, reached
their opinions despite any possible exaggeration in the PAIs.
Dr. Burns noted that Plaintiff “achieved a [PAI] profile that suggests he may have been
endorsing items which tend to present himself in an unfavorable light.” AR 473. According to
Dr. Burns’ evaluation, the PAI Clinical Interpretive Report stated: “This pattern does not
necessarily indicate a level of distortion that would render the test results uninterpretable, the
interpretive hypotheses presented in this report may over represent the extent and degree of
significant test findings in certain areas.” AR 473. Dr. Burns observed that the test results were
nonetheless “consistent with [Plaintiff’s] presentation in the course of this evaluation—that of
significant depression and significant anxiety.” AR 473. He also opined that Plaintiff “did not
appear to be overstating his psychiatric difficulties.” AR 473. Dr. Burns formed his opinion after
an evaluation that included an interview with Plaintiff; a mental status examination; a review of
prior medical records (including a Functional Summary and treatment and medical records); and
psychological testing that included the PAI. AR 462.
Similarly, Dr. Causeya noted that the PAI results indicated possible distortion—
specifically, “a defensiveness about particular shortcomings as well as an exaggeration of certain
problems.” AR 702. Dr. Causeya formed her opinion after reviewing records, including
Dr. Burns’ report, interviewing Plaintiff and his mother, and conducting other testing of Plaintiff.
The ALJ is responsible for resolving conflicts in the medical record. Carmickle, 533 F.3d
at 1164. But when the ALJ criticizes an examining psychologist’s interpretation of test results,
and that criticism is unsupported by medical evidence, the ALJ is not free to substitute his own
lay opinion. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (holding that the ALJ
PAGE 16 – OPINION AND ORDER
erred by making “his own exploration and assessment as to claimant's physical condition” even
though he “was not qualified as a medical expert”).
Drs. Burns and Causeya formed their opinions after performing their own examinations,
testing, and a review of medical records and test results, including the PAI Clinical Interpretive
Report. They did not ignore the potential exaggeration in the PAI, but expressly acknowledged it
and found it not to overcome the other evidence in forming their opinions. The fact that Ms. Ford
was not deterred from the findings of Drs. Burns and Causeya because of potential distortion of
the PAI results—a distortion that both doctors expressly noted yet found did not overcome the
other testing and medical evidence used to form their opinions—is not a proper and germane
reason to discredit Ms. Ford’s opinion.
4. Activities of Daily Living
The ALJ found the medical opinions to be inconsistent with Plaintiff’s ability to care for
his ailing father, teach his niece piano, color his hair on one occasion, meet up with friends,7
attend one Christmas party, and attend one concert.8 The relevant inquiry is whether these
activities are inconsistent with the limitations as opined by Drs. Burns and Causeya and
Ms. Ford.
Dr. Burns found that if Plaintiff was placed in a work setting, he would be unable to
adhere to minimal standards of attendance, accept instructions and respond appropriately to
criticism from supervisors, or interact with the general public or fellow employees without
The ALJ cited to a single chart note in which under the section titled “Individual’s
report of progress towards goals/objectives since last session” it is noted that Plaintiff stated that
he had met up with friends.
7
The ALJ also noted Plaintiff’s ability to attend some college classes, but that occurred
before the amended alleged disability onset date, and the Commissioner does not argue that this
was a valid reason provided by the ALJ.
8
PAGE 17 – OPINION AND ORDER
interference from psychologically-based symptoms. Dr. Causeya found that Plaintiff had
moderately severe limitations in the following areas: sustaining an ordinary work routine without
special supervision; working in coordination with or proximity to others without being
distracted; an ability to make simple work-related decisions; an ability to interact appropriately
with the general public or customers; an ability to accept instructions and respond appropriately
to criticism from supervisors; and an ability to maintain socially appropriate behavior. Ms. Ford
agreed with these assessments.
An ALJ may not simply cherry-pick evidence to discount opinions or make an adverse
credibility determination. See, e.g., Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (quoting
Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)); Garrison, 759 F.3d at 1017-18. Rather, the
ALJ must consider a claimant’s full record before arriving at a conclusion based on substantial
evidence. See Holohan, 246 F.3d. at 1207. (“[T]he ALJ selectively relied on some entries in
Holohan’s records . . . and ignored the many others that indicated continued, severe
impairment.”); see also Esparza v. Colvin, 631 F. App’x 460, 462 (9th Cir. 2015) (finding that
the claimant’s limited activities, including working 13-20 hours per week as a caregiver for his
father, were “generally consistent” with claimed limitations from severe gastrointestinal
problems, panic attacks, trouble sleeping, and depression).
Regarding mental health issues in particular, the Ninth Circuit has cautioned against
relying on isolated instances of improved function as a basis for rejecting a claimant’s testimony:
It is error to reject a claimant’s testimony merely because
symptoms wax and wane in the course of treatment. Cycles of
improvement and debilitating symptoms are a common occurrence,
and in such circumstances it is error for an ALJ to pick out a few
isolated instances of improvement over a period of months or years
and to treat them as a basis for concluding a claimant is capable of
working.
Garrison, 759 F.3d at 1017.
PAGE 18 – OPINION AND ORDER
Additionally, the mere fact that a claimant can carry out minimal activities, or that a
claimant attempts to lead a normal life, does not mean he is foreclosed from disability
benefits. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (noting that a “claimant need
not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted));
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that
the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping,
driving a car, or limited walking for exercise, does not in any way detract from her credibility as
to her overall disability. One does not need to be utterly incapacitated in order to be disabled.”
(quotation marks omitted)); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (noting that
“disability claimants should not be penalized for attempting to lead normal lives in the face of
their limitations”).
Plaintiff’s isolated, limited instances of social activity are not inconsistent with the
medical providers’ conclusions that in a work setting Plaintiff would be unable to appropriately
interact with the public or fellow employees and would have difficulty taking instructions and
accepting criticism. Nor does the fact that Plaintiff can interact with his father or his niece
conflict with this opinion. The fact that he colored his hair on one occasion (which he appears to
have done himself, not in a salon) does not appear to have any relevance. Plaintiff’s activities of
daily living are not a specific, legitimate reason to discount the opinions of Drs. Burns
or Causeya, or a germane reason to discount the opinion of Ms. Ford.
5. Overall Medical Evidence Record
The ALJ states that the medical opinions do “not comport with the overall medical
evidence record,” AR 22, and the Commissioner argues, citing Orn, that factors relevant to
evaluating a medical opinion include “the consistency of the medical opinion with the record as a
whole.” 495 F.3d at 631. The ALJ may reject a medical opinion that is “conclusory, brief, and
PAGE 19 – OPINION AND ORDER
unsupported by the record as a whole.” Batson, 359 F.3d at 1195. The ALJ must do so, however,
only for reasons supported by “substantial record evidence.” Roberts, 66 F.3d at 184 (9th
Cir. 1995), as amended (Oct. 23, 1995). The ALJ errs when he assigns a medical opinion little
weight while only “criticizing it with boilerplate language that fails to offer a substantive basis
for his conclusion.” Garrison, 759 F.3d at 1012.
Standing alone, a statement that “the record as a whole does not support” the medical
opinions in this case is boilerplate. The ALJ’s rejection of a medical source opinion must rely on
the specific instances in the record the ALJ points to as a basis for that rejection. Accordingly,
the ALJ’s assertion of inconsistency with the “record as a whole” is not a sufficiently specific or
germane reason to reject the medical opinions. The Court has already addressed the reasons for
which the ALJ provided a more specific discussion or a substantive basis.
6. Conclusion
The ALJ did not provide a specific, legitimate reason, supported by substantial evidence
in the record, to discount the opinions of Dr. Burns or Dr. Causeya. The ALJ also did not provide
a germane reason to discount the opinion of Ms. Ford, nor did the ALJ appear to follow 20
C.F.R. § 404.1527(f)(1) and consider the appropriate factors under § 404.1527(c) in evaluating
Ms. Ford’s opinion. Accordingly, the ALJ erred in evaluating the opinions of these medical
sources.
D. Remedy
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
PAGE 20 – OPINION AND ORDER
utility of further proceedings. A court may not award benefits punitively, and must conduct a
“credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine
if a claimant is disabled under the Social Security Act. Strauss v. Comm’r of the Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this
Court. Garrison, 759 F.3d at 999. The court first determines whether the ALJ made a legal error
and then reviews the record as a whole to determine whether the record is fully developed, the
record is free from conflicts and ambiguities, and there is any useful purpose in further
proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has
been fully developed and there are no outstanding issues left to be resolved does the district court
consider whether the ALJ would be required to find the claimant disabled on remand if the
improperly discredited evidence were credited as true. Id. If so, the district court can exercise its
discretion to remand for an award of benefits. Id. The district court retains flexibility, however,
and is not required to credit statements as true merely because the ALJ made a legal error. Id.
at 408.
The ALJ erred in failing to provide legally sufficient reasons for rejecting the opinions of
Dr. Burns, Dr. Causeya, and Ms. Ford. Even if, however, these opinions regarding Plaintiff’s
disability were given great weight, the record would not remain “free from conflicts and
ambiguities.” These opinions would still conflict with the conclusions of reviewing psychologists
Dr. Kessler and Dr. Anderson. See Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
(holding that “the trier of fact and not the reviewing court must resolve conflicts in the
evidence”). Further, the ALJ’s non-disability determination was based not only on the conflicting
medical source opinions, but also on an evaluation of Plaintiff’s subjective symptom testimony
PAGE 21 – OPINION AND ORDER
(Plaintiff did not dispute the ALJ’s assessment that Plaintiff’s testimony was not entirely
reliable).
The Court remands the Commissioner’s decision for further proceedings so that the ALJ
properly may consider the opinions of Drs. Burns and Causeya and Ms. Ford, reformulate
Plaintiff’s RFC if necessary, conduct a new Step Five analysis if necessary, and engage in further
proceedings consistent with this decision that the ALJ deems appropriate.
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND
REMANDED for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 12th day of August, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 22 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?