Watson v. Commissioner Social Security Administration
Filing
17
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 7/8/2019 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL W.,1
Plaintiff,
Case No. 6:18-cv-00004-SI
OPINION AND ORDER
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.
Mark A. Manning and Katherine Eitenmiller, 474 Willamette Street, Suite 200, Eugene, OR
97401. 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;
Martha A. Boden, 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.
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
Michael H. Simon, District Judge.
Michael W. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner” or “Defendant”) denying Plaintiff’s
application for application for Disability Insurance Benefits (“DIB”). For the following reasons,
the Commissioner’s opinion 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 filed an application for Disability Insurance Benefits on December 26, 2013,
alleging disability beginning October 1, 2011. Plaintiff was born on December 10, 1977, and was
thirty-three years old on the alleged disability onset date. AR 29. Plaintiff earned a GED and
worked as a satellite cable installer and supervisor in that industry. AR 29. Plaintiff’s application
was denied initially and upon reconsideration, and Plaintiff timely requested a hearing before an
ALJ, which was held on July 28, 2016. After the hearing, the ALJ issued an adverse decision
dated September 14, 2016. Plaintiff requested review of the hearing decision, which the Appeals
Council denied on October 26, 2017. Plaintiff now seeks review in this Court.
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.
PAGE 3 – OPINION AND ORDER
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
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
PAGE 4 – OPINION AND ORDER
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.
C. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2016. AR 22. At step one of the sequential analysis, the ALJ
determined that Plaintiff had not engaged in substantial gainful activity since October 1, 2011,
the alleged disability onset date. AR 22. At step two, the ALJ found the following severe
impairments: depression, anxiety, and panic attacks with agoraphobia. AR 22. At step three, the
ALJ found that none of those severe impairments met or equaled any impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. AR 23.
The ALJ next assessed an RFC to
perform medium work as defined in 20 CFR 404.1567(c) except
the claimant can never climb ladders, ropes, or scaffolds. The
claimant can have no exposure to hazards, machinery, or
unprotected heights. Due to pain, side effects of medications and
mental impairments, the claimant can have no more than frequent
interactive contact with the public.
AR 25. At step four, the ALJ found Plaintiff was unable to perform any past relevant work.
AR 29. At step five, the ALJ found that Plaintiff retained the ability to perform the requirements
PAGE 5 – OPINION AND ORDER
of jobs existing in significant numbers in the national economy, such as dishwasher/kitchen
helper, cleaner, and laundry worker. AR 29-30. The ALJ then found that Plaintiff had not been
under a disability, as defined by the Act, from October 1, 2011, the alleged onset date, through
September 14, 2016, the date of the ALJ’s unfavorable decision. AR 30.
DISCUSSION
Plaintiff argues that the ALJ erred in the following two respects: (1) rejecting the medical
opinions of consultative psychological examiner Janet Bacheler, PhD, and medical expert John
Nance, PhD; and (2) failing to provide specific, clear and convincing reasons supported by
substantial evidence to reject Plaintiff’s subjective symptom testimony. Plaintiff argues that both
of the medical opinions and Plaintiff’s subjective symptom testimony should be credited as true,
and that the case should be remanded for an award of benefits or, in the alternative, for further
proceedings. The Court addresses each argument in turn.
A. Medical Opinions of Janet Bacheler, PhD, and John Nance, PhD
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth Circuit distinguishes
between the opinions of three types of physicians: treating physicians, examining physicians, and
non-examining physicians. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, “a
treating physician’s opinion carries more weight than an examining physician’s, and an
examining physician’s opinion carries more weight than a reviewing physician’s.” Holohan v.
Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating physician’s opinion is supported by
medically acceptable techniques and is not inconsistent with other substantial evidence in the
record, the treating physician’s opinion is given controlling weight. Id.; see also 20 C.F.R.
§ 404.1527(d)(2). A treating doctor’s opinion that is not contradicted by the opinion of another
physician can be rejected only for “clear and convincing” reasons. Ryan v. Comm’r of Soc.
PAGE 6 – OPINION AND ORDER
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s opinion is contradicted by the
opinion of another physician, the ALJ must provide “specific and legitimate reasons” for
discrediting the treating doctor’s opinion. Id.
In addition, 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. As is the case with the
opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502,
506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another
physician’s opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the
examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may
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).
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
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, 53 F.3d at
1042-43. 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
PAGE 7 – OPINION AND ORDER
basis” for the ALJ’s conclusion. Garrison¸ 759 F.3d at 1013; see also Smolen, 80 F.3d at 1286
(noting that an ALJ effectively rejects an opinion when he or she ignores it).
“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.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725). 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)). “[T]he opinion of a nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the
rejection of the opinion of an examining or treating physician.” Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations omitted); but see id. at 600 (opinions of
non-treating or nonexamining physicians may serve as substantial evidence when the opinions
are consistent with independent clinical findings or other evidence in the record).
1. Consultative Psychological Examiner, Janet Bacheler, PhD
Disability Determination Services referred Plaintiff to Dr. Bacheler for a consultative
psychological examination in April 2014. AR 302-07. Dr. Bacheler based her opinion on a
clinical interview of Plaintiff and his spouse, and on a mental status examination of Plaintiff.
AR 303-06. Dr. Bacheler opined moderate limitation in Plaintiff’s ability to maintain regular
attendance in the workplace, perform work activities on a consistent basis, and complete a
normal workday or workweek. AR 307. Dr. Bacheler’s prognosis of Plaintiff was “good with
comprehensive services.” AR 306. Dr. Bacheler further opined that Plaintiff’s symptoms would
abate “within one year with these services.” AR 307. Dr. Bacheler noted that Plaintiff stated that
Paxil changed his life, and that before taking Paxil “he wouldn’t leave the house.” AR 304.
PAGE 8 – OPINION AND ORDER
The ALJ afforded “partial weight” to Dr. Bacheler’s opinion “as it [is] based entirely on
subjective complaints.” AR 28. The ALJ also found that the opinion “is not consistent with
findings that the claimant was neatly groomed or that his prognosis is good for symptom
abatement within a year.” AR 28. The ALJ found that Dr. Bacheler’s opinion was “not consistent
with the claimant’s daily activities or reports that his symptoms are managed with medication.”
AR 28.
One of the reasons that the ALJ discounted Dr. Bacheler’s opinion was because, in the
ALJ’s view, the opinion was “based entirely on subjective complaints.” Plaintiff argues that this
was error. The Ninth Circuit has acknowledged that “[a] physician’s opinion of disability
premised to a large extent upon the claimant’s own accounts of his symptoms and limitations
may be disregarded where those complaints have been properly discounted.” Morgan v. Comm’r
of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal quotation marks and citation
omitted). In Buck v. Berryhill, however, the Ninth Circuit made clear that when a physician
conducts “a clinical interview and a mental status evaluation,” as were conducted by
Dr. Bacheler in this case, the clinical interview and mental status evaluation “are objective
measures and cannot be discounted as a ‘self-report.’” 869 F.3d 1040, 1049 (9th Cir. 2017).
In Buck, the Ninth Circuit also stated that an ALJ’s analysis must be different if a medical
opinion regards mental illness:
Psychiatric evaluations may appear subjective, especially
compared to evaluation in other medical fields. Diagnoses will
always depend in part on the patient’s self-report, as well as on the
clinician’s observations of the patient. But such is the nature of
psychiatry. See Poulin, 817 F.2d at 873 (“[U]nlike a broken arm, a
mind cannot be x-rayed.”).Thus, the rule allowing an ALJ to reject
opinions based on self-reports does not apply in the same manner
to opinions regarding mental illness.
PAGE 9 – OPINION AND ORDER
Id. The ALJ therefore erred by failing to apply the appropriate factors in determining the extent
to which the opinion should be credited, as “the rule allowing an ALJ to reject opinions based on
self-reports does not apply in the same manner to opinions regarding mental illness.” Id. “This
failure alone constitutes reversible legal error.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir.
2017).
The Commissioner responds that Buck, and specifically its statement on medical opinions
regarding mental illness, is not applicable to this case, because in this case “the ALJ did not
solely rely on the subjective basis for the opinion to discount it.” ECF 16. The ALJ also found
that Dr. Bacheler’s opinion “is not consistent with findings that the claimant was neatly groomed
or that his prognosis is good for symptom abatement within a year.” AR 28. The ALJ noted that
Dr. Bacheler’s opinion was “not consistent with the claimant’s daily activities or reports that his
symptoms are managed with medication.” AR 28
As Plaintiff correctly points out, however, it is not apparent from the record evidence
why Plaintiff’s grooming contradicts Dr. Bacheler’s opinions that Plaintiff was limited in his
ability to maintain regular attendance at work, perform work activities on a consistent basis,
complete a normal workday or workweek, and interact with coworkers and the public. The ALJ
did not explain any purported contradiction and instead offered the conclusion that Dr.
Bacheler’s opinion was not consistent with this fact. “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.” Garrison,
759 F.3d at 1012. The ALJ did not do so here, and instead only offered the conclusion that there
was a conflict.
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Similarly, Dr. Bacheler’s opinion that Plaintiff’s prognosis was good for symptom
abatement within a year was dependent, as expressly stated in Dr. Bacheler’s opinion, on
Plaintiff receiving “comprehensive services.” This fact therefore also does not obviously conflict
with the conclusions in Dr. Bacheler’s opinion. The Commissioner is correct that an ALJ may
discredit physicians’ opinions that are unsupported by the record as a whole. Batson v. Comm’r
of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004). But neither the ALJ nor the Commissioner
explain how Plaintiff’s groomed appearance nor Plaintiff’s potential for symptom abatement
with comprehensive services undercut Dr. Bacheler’s opinion. Because there was no internal
inconsistency between these facts and the remainder of Dr. Bacheler’s opinion, these facts are
not specific and legitimate reasons to reject Dr. Bacheler’s opinion. Bray, 554 F.3d at 1228.
The ALJ also found that Dr. Bacheler’s opinion was not consistent with Plaintiff’s daily
activities or reports that his symptoms are managed with medication. The ALJ did not specify
which daily activities were inconsistent with Dr. Bacheler’s opinion. Such “boilerplate language”
fails to offer a substantive basis for the ALJ’s conclusion. Garrison¸ 759 F.3d at 1013. The
ALJ’s finding that Dr. Bacheler noted that Plaintiff’s symptoms are managed with medication is
not supported by substantial evidence. Dr. Bacheler noted that Plaintiff stated that “Paxil [had]
changed [his] life” insofar as Plaintiff is now able to leave his home. Dr. Bacheler notes
elsewhere in the opinion that Paxil and Valium “mitigated” Plaintiff’s symptoms. But
Dr. Bacheler did not opine that these medications fully “managed” Plaintiff’s symptoms such
that Dr. Bacheler’s opinion was inconsistent with such management. In fact, Dr. Bacheler’s
opinion expressly accounted for Plaintiff’s use of medications.
The ALJ did not otherwise explain why Plaintiff’s use of medication was inconsistent
with Dr. Bacheler’s opinion, and instead offered only the conclusory statement that Plaintiff’s
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symptom management conflicted with Dr. Bacheler’s opinion. “The 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. The ALJ therefore improperly rejected Dr.
Bacheler’s opinion.
2. Medical Expert John Nance, PhD
Dr. Nance testified at the hearing in July 2016. AR 62. He assessed Plaintiff with panic
disorder with agoraphobia, depression, and a history of polysubstance abuse. AR 63. Dr. Nance
opined that Plaintiff had mild restriction in activities of daily living, concentration, persistence,
and pace, and that Plaintiff had marked difficulty maintaining social functioning. AR 64-65.
The ALJ afforded partial weight to Dr. Nance’s opinion, reasoning that
marked limitations in social functioning are not supported by the
overall record indicating that the claimant has panic attacks
infrequently on medication ([AR 279-81]), that he is a stay at home
dad and cares for his children, that he shops in stores and lives with
his family ([AR 295-300, 307-07, 328]), or that problems with
social interaction have not been documented by objective findings.
AR 28. Plaintiff argues that the ALJ failed to consider the objective bases that Dr. Nance
identified in reaching the conclusion that Plaintiff suffered marked impairment in social
functioning, such as cooperative but guarded behavior, slightly distracted concentration, and
depressed mood. Plaintiff also argues that his ability to care for his children and live with his
family is not inconsistent with Dr. Nance’s opinion regarding Plaintiff’s ability to interact with
coworkers and the public.
When 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). Here, Plaintiff disagrees with the ALJ’s interpretation of the “overall record” and
how Plaintiff’s ability to shop and live with family bears on the question of whether Plaintiff
PAGE 12 – OPINION AND ORDER
suffers market impairment in social function. The Court finds that ALJ’s interpretation of this
conflicting evidence is rational, however, and therefore the Commissioner’s conclusion
regarding Dr. Nance is upheld.
B. Plaintiff’s Subjective Symptom Testimony
There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
“First, the ALJ must determine whether the claimant has presented objective medical evidence of
an underlying impairment ‘which could reasonably be expected to produce the pain or other
symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant
need not show that her impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could reasonably have caused some degree
of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
The Commissioner superseded Social Security Rule (“SSR”) 96-7p governing the
assessment of a claimant’s “credibility” and replaced it with SSR 16-3p. SSR 16-3p eliminates
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the reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination
of an individual’s character,” and requires the ALJ to consider all of the evidence in an
individual’s record when evaluating the intensity and persistence of symptoms. SSR 16-3p,
available at 2016 WL 1119029, at *1-2. The Commissioner recommends that the ALJ examine
“the entire case record, including the objective medical evidence; an individual’s statements
about the intensity, persistence, and limiting effects of symptoms; statements and other
information provided by medical sources and other persons; and any other relevant evidence in
the individual’s case record.” Id. at *4. The Commissioner further recommends assessing: (1) the
claimant’s statements made to the Commissioner, medical providers, and others regarding the
claimant’s location, frequency and duration of symptoms, the impact of the symptoms on daily
living activities, factors that precipitate and aggravate symptoms, medications and treatments
used, and other methods used to alleviate symptoms; (2) medical source opinions, statements,
and medical reports regarding the claimant’s history, treatment, responses to treatment, prior
work record, efforts to work, daily activities, and other information concerning the intensity,
persistence, and limiting effects of an individual’s symptoms; and (3) non-medical source
statements, considering how consistent those statements are with the claimant’s statements about
his or her symptoms and other evidence in the file. See id. at *6-7.
The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall
even if not all the ALJ’s reasons for rejecting the claimant’s testimony are upheld. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ may not, however,
discount testimony “solely because” the claimant’s symptom testimony “is not substantiated
affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883
(9th Cir. 2006).
PAGE 14 – OPINION AND ORDER
The ALJ found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but that Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms [were] not entirely consistent with the medical
evidence and other evidence in the record.” AR 26. The ALJ, therefore, could reject Plaintiff’s
testimony about the severity of his symptoms only “by offering specific, clear and convincing
reasons for doing so.” Lingenfelter, 504 F.3d at 1036. The ALJ stated that “[i]n all, the
claimant’s sporadic treatment, activities of daily living, and reports that his symptoms are
managed with medication suggests that his mental health symptoms do not limit him as he
alleged and are not disabling.” The Court examines each of these reasons offered by the ALJ.
1. Sporadic Treatment
The ALJ rejected Plaintiff’s testimony based in part on Plaintiff’s “failure to aggressively
seek treatment for his impairments” and Plaintiff’s “scarce, periodic treatment.” AR 26. The
Ninth Circuit has stated that “it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100
F.3d 1462, 1465 (9th Cir. 1996). Plaintiff alleged disabling anxiety that prevented him from
leaving his home, and Plaintiff testified that he had missed at least one medical appointment due
to a panic attack. AR 56. Plaintiff’s failure to aggressively seek treatment is therefore not a
substantial basis on which to conclude that Dr. Nance’s assessment of Plaintiff’s condition is
inaccurate. See Nguyen, 100 F.3d at 1465 (“[T]he fact that claimant may be one of millions of
people who did not seek treatment for a mental disorder until late in the day is not a substantial
basis on which to conclude that Dr. Brown’s assessment of claimant’s condition is inaccurate.”).
2. Activities of Daily Living
The ALJ noted that during an internal medicine consultative examination on March 28,
2014, Plaintiff reported that he stopped working at his past job for nonmedical reasons, and that
PAGE 15 – OPINION AND ORDER
this suggested that Plaintiff’s “current lack of work is not due to medically determinable
impairments.” AR 27. Plaintiff consistently testified, however, that he was fired by his prior
employer for nonmedical reasons. AR 247, 229. This fact, therefore, does not have a bearing on
Plaintiff’s symptom testimony and is not a clear and convincing basis to reject that subjective
symptom testimony.
The ALJ also noted that Plaintiff “has taken care of his children full time since he quit
working,” but as the Ninth Circuit has “repeatedly asserted that the mere fact that a plaintiff has
carried on certain daily activities . . . does not in any way detract from her credibility as to her
overall disability.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Nothing in the record
supports a finding that Plaintiff performed childcare activities inconsistent with his allegations of
disabling anxiety, and the fact that Plaintiff took care of his children therefore “does not
constitute an adequately specific conflict with [Plaintiff’s] reported limitations.” Trevizo, 871
F.3d at 682.
3. Symptoms Managed with Medication
The ALJ also rejected Plaintiff’s subjective symptom testimony based on a May 2, 2013
treatment note indicating that Plaintiff was “having only infrequent panic attacks despite taking
Valium only once or twice a month.” AR 26. The ALJ concluded that this evidence “suggests
that the claimant’s anxiety remains generally controlled without medication and that his
medication [sic] remains responsive to medication when he takes it.” AR 26. The ALJ erred in
extrapolating the broad conclusion of Plaintiff’s anxiety being “generally controlled without
medication” from a single treatment note. “[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). A single treatment note is such an isolated
quantum that this Court may not use to affirm the ALJ’s decision, nor is it clear and convincing
PAGE 16 – OPINION AND ORDER
evidence that Plaintiff’s subjective symptom testimony should be rejected. Lingenfelter, 504 F.3d
at 1036. The ALJ, therefore, failed to identify clear and convincing reasons supported by
substantial evidence in the record to reject Watson’s subjective symptom testimony.
C. Credit-as-True Analysis
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
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 v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). 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.
PAGE 17 – OPINION AND ORDER
The Court is not satisfied that the record is free from conflicts and ambiguities such that
there would not be any useful purpose in further proceedings. As the Ninth Circuit has explained,
“the district court must consider the testimony or opinion that the ALJ improperly rejected, in the
context of the otherwise undisputed record, and determine whether the ALJ would necessarily
have to conclude that the claimant were disabled if that testimony or opinion were deemed true.”
Id. Plaintiff offers no substantive argument for why this is so in the instant case. The Court has
considered the opinion of Dr. Bacheler and Plaintiff’s subjective symptom testimony, which the
ALJ improperly rejected. It is not clear to the Court that if this evidence were deemed true the
ALJ would necessarily have to conclude that Plaintiff was disabled. The Court therefore remands
for further proceedings consistent with this opinion.
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 8th day of July, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 18 – OPINION AND ORDER
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