Bryan Kelly Wallace v. Michael J Astrue, No. 2:2012cv03983 - Document 22 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (am)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 BRYAN KELLY WALLACE, 13 14 15 16 17 18 19 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) Case No. CV 12-3983-SP MEMORANDUM OPINION AND ORDER 20 I. 21 INTRODUCTION 22 On May 21, 2012, plaintiff Bryan Kelly Wallace filed a complaint against 23 defendant, the Commissioner of the Social Security Administration 24 ( Commissioner ), seeking a review of a denial of supplemental security income 25 ( SSI ). Both plaintiff and defendant have consented to proceed for all purposes 26 before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court 27 deems the matter suitable for adjudication without oral argument. 28 Plaintiff presents a single disputed issue for decision: whether the 1 1 Administrative Law Judge ( ALJ ) properly rejected the opinions of Drs. Jackson 2 and Betty L. Borden, plaintiff s treating and examining psychologists, 3 respectively.1 Memorandum in Support of Plaintiff s Complaint ( Pl. Mem. ) at 4 3-8; Memorandum in Support of Defendant s Answer at 2-6. 5 Having carefully studied, inter alia, the parties s moving papers, the 6 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 7 that, as detailed herein, the ALJ improperly rejected the opinions of plaintiff s 8 treating and examining physicians without providing specific and legitimate 9 reasons supported by substantial evidence for doing so. Therefore, the court 10 remands this matter to the Commissioner in accordance with the principles and 11 instructions enunciated in this Memorandum Opinion and Order. 12 II. 13 FACTUAL AND PROCEDURAL BACKGROUND 14 Plaintiff, who was forty-five years old on the date of his June 22, 2010 15 administrative hearing, has a tenth grade education. See AR at 28, 35, 48, 50-51. 16 His past relevant work includes employment for a mowing service. Id. at 35, 61. 17 On January 30, 2009, plaintiff applied for SSI, alleging that he had been 18 disabled since June 15, 2002 due to schizoaffective disorder, substance abuse, 19 antisocial personality disorder, bi-polar disorder, and major depression. Id. at 28, 20 82-84, 90, 161. Plaintiff s application was denied initially and upon 21 reconsideration, after which he filed a request for a hearing. Id. at 28, 82-84, 90, 22 95-97. 23 On June 22, 2010, plaintiff, represented by counsel, appeared and testified 24 at a hearing before the ALJ. Id. at 48-60, 80-81. The ALJ also heard testimony 25 26 1 Psychologists are considered acceptable medical sources whose opinions 27 are accorded the same weight as physicians. 20 C.F.R. § 416.913(a)(2). Accordingly, for ease of reference, the court will refer to Drs. Jackson and Borden 28 as physicians. 2 1 from Randi Langford-Hetrick, a vocational expert. Id. at 61-80. In addition, 2 plaintiff amended the alleged onset date ( AOD ) to January 30, 2009. Id. at 28, 3 49. On July 16, 2010, the ALJ denied plaintiff s request for benefits. Id. at 28-37. 4 Applying the well-known five-step sequential evaluation process, the ALJ 5 found, at step one, that plaintiff did not engage in substantial gainful activity since 6 his AOD, January 30, 2009. Id. at 30. 7 At step two, the ALJ found that plaintiff suffered from severe medically 8 determinable impairments consisting of: schizoaffective disorder, antisocial 9 personality disorder, hypertension, and diabetes. Id. 10 At step three, the ALJ determined that plaintiff s impairments, whether 11 individually or in combination, did not meet or medically equal one of the listed 12 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. The ALJ then assessed plaintiff s residual functional capacity ( RFC ),2 and 13 14 determined: 15 [plaintiff] has the [RFC] to perform a full range of work at all 16 exertional levels consisting of simple 1-2 step tasks with limitation to 17 low stress tasks which permit occasional decision-making, occasional 18 changes in the work setting and occasional exercise in judgment, 19 occasional interaction with the public and coworkers, is limited to 20 superficial, non-confrontational and non-arbitration/negotiation types 21 of interaction, and no exposure to unprotected heights or dangerous 22 machinery, or drive as an occupational requirement. 23 24 2 Residual functional capacity is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the 27 ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th 28 Cir. 2007) (citation omitted). 25 3 1 Id. (bold omitted). 2 The ALJ found, at step four, that plaintiff was unable to perform any past 3 relevant work. Id. at 35. 4 At step five, based upon plaintiff s RFC, vocational factors, and the 5 vocational expert s testimony, the ALJ concluded that there are jobs that exist in 6 significant numbers in the national economy that plaintiff can perform, including 7 night cleaner, cleaner and agricultural sorter. Id. 35-36. Consequently, the ALJ 8 concluded that plaintiff did not suffer from a disability as defined by the Social 9 Security Act. Id. at 28, 37. 10 Plaintiff filed a timely request for review of the ALJ s decision, which was 11 denied by the Appeals Council. Id. at 3-8, 140. The ALJ s decision stands as the 12 final decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines that the ALJ s findings are based on 20 legal error or are not supported by substantial evidence in the record, the court 21 may reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 Substantial evidence is more than a mere scintilla, but less than a 25 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 26 relevant evidence which a reasonable person might accept as adequate to support 27 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 28 F.3d at 459. To determine whether substantial evidence supports the ALJ s 4 1 finding, the reviewing court must review the administrative record as a whole, 2 weighing both the evidence that supports and the evidence that detracts from the 3 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 4 affirmed simply by isolating a specific quantum of supporting evidence. 5 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 6 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 7 the ALJ s decision, the reviewing court may not substitute its judgment for that 8 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 9 1992)). 10 IV. 11 DISCUSSION 12 Plaintiff argues that [t]he ALJ failed to articulate specific and legitimate 13 reasons for rejecting the opinions of Drs. Borden and Jackson, plaintiff s 14 examining and treating physicians, respectively. Pl. Mem. at 8; see id. at 3-8. The 15 court agrees. 16 In determining whether a claimant has a medically determinable 17 impairment, among the evidence the ALJ considers is medical evidence. 20 18 C.F.R. § 416.927(b). In evaluating medical opinions, the regulations distinguish 19 among three types of physicians: (1) treating physicians; (2) examining 20 physicians; and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester 21 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). Generally, a treating 22 physician s opinion carries more weight than an examining physician s, and an 23 examining physician s opinion carries more weight than a reviewing physician s. 24 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 25 § 416.927(c)(1)-(2). The opinion of the treating physician is generally given the 26 greatest weight because the treating physician is employed to cure and has a 27 greater opportunity to understand and observe a claimant. Smolen v. Chater, 80 28 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th 5 1 Cir. 1989). 2 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 3 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 4 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 5 81 F.3d at 830. If the treating physician s opinion is contradicted by other 6 opinions, the ALJ must provide specific and legitimate reasons supported by 7 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 8 specific and legitimate reasons supported by substantial evidence in rejecting the 9 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 10 non-examining physician, standing alone, cannot constitute substantial evidence. 11 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 12 Comm r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 13 813, 818 n.7 (9th Cir. 1993). 14 Dr. Jackson 15 On January 27, 2009, Dr. Jackson completed a psychological evaluation of 16 plaintiff for the California Department of Corrections and Rehabilitation. AR at 17 480-82. Dr. Jackson based this evaluation on at least eight face-to-face 18 evaluation interviews conducted over the course of approximately five months 19 (id. at 480-84, 486-90); a mental status examination (id. at 481); and a review of 20 plaintiff s medical records. Id. at 480-81. Plaintiff s mental status examination 21 indicated, inter alia, that: plaintiff was fully oriented and reported poor 22 concentration and being easily distracted; plaintiff s affect was generally 23 congruent with content and his depression was stable on medication; plaintiff 24 reported ongoing anxiety with constant worrying; plaintiff s judgment was 25 inconsistent; and there was evidence of impulsivity and a tendency to take on 26 inappropriate/unrealistic responsibility for others. Id. at 481. Dr. Jackson 27 diagnosed plaintiff with: (1) Axis I: 302.2 Pedophilia, 296.7 Bipolar I Disorder, 28 most recent episode unspecified, 304.80 Polysubstance Dependence (alcohol, 6 1 amphetamine), in remission; (2) Axis II: V71.09 no diagnosis; (3) Axis III: head 2 trauma age 7/8 with possible long-term consequences, right arm weakness, poor 3 rotation ability; (4) Axis IV: Parole Adjustment; and (5) Axis V: current GAF 4 score of 45.3 Id. at 481-82. Dr. Jackson opined that, based on plaintiff s reported 5 inability to maintain employment due to symptoms of anxiety and paranoia, 6 plaintiff would not be able to cope with job demands, supervision, or to interact 7 effectively with co-workers. Id. at 482. Dr. Jackson concluded that plaintiff 8 appears unable to work. Id. 9 In his decision, the ALJ discredited Dr. Jackson s opinion concerning 10 plaintiff s work restrictions. See id. at 34. According to the ALJ, Dr. Jackson s 11 opinion was based on [plaintiff] s assertion that he cannot work because he does 12 not trust people and the only exception was a job in which he worked by himself 13 as a gas station attendant. Id. Moreover, the ALJ noted that 14 the treatment notes from the Parole Outpatient Clinic [( POC )] . . . 15 do not show that [plaintiff] had any problems getting along with 16 others. The treatment notes since the amended [AOD] also do not 17 show any complaints of paranoia or other psychotic symptoms. The 18 treatment notes do not show that [plaintiff] ever reported not being 19 able to trust people. Indeed, [plaintiff] worked in an automotive 20 repair shop as well as worked in exchange for residence. . . . [T]he 21 22 3 A GAF score is the clinician s judgment of the individual s overall level of 23 functioning. It is rated with respect to psychological, social and occupational 24 functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and 25 Statistical Manual of Mental Disorders ( DSM-IV ) 32 (4th ed. 2000). A GAF 26 score of 41-50 indicates [s]erious symptoms (e.g., suicidal ideation, severe 27 obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). 28 DSM-IV at 34 (bold and capitalization omitted). 7 1 treatment notes generally show that [plaintiff] was stable on 2 medications and had no complaints. 3 Id. The ALJ s reasons were not specific and legitimate reasons supported by 4 substantial evidence. 5 As an initial matter, the ALJ rejected Dr. Jackson s opinion because it was 6 based on [plaintiff] s assertion that he cannot work. Id. An ALJ may reject a[] 7 . . . physician's opinion if it is contradicted by clinical evidence. But an ALJ does 8 not provide clear and convincing reasons for rejecting a[] . . . physician's opinion 9 by questioning the credibility of the patient's complaints where the doctor does not 10 discredit those complaints and supports his ultimate opinion with his own 11 observations. Ryan v. Comm r, 528 F.3d 1194, 1199-1200 (9th Cir. 2008) 12 (internal citation omitted). Indeed, 13 [c]ourts have recognized that a psychiatric impairment is not as 14 readily amenable to substantiation by objective laboratory testing as 15 is a medical impairment and that consequently, the diagnostic 16 techniques employed in the field of psychiatry may be somewhat less 17 tangible than those in the field of medicine. In general, mental 18 disorders cannot be ascertained and verified as are most physical 19 illnesses, for the mind cannot be probed by mechanical devices in 20 order to obtain objective clinical manifestations of mental illness . . . . 21 [W]hen mental illness is the basis of a disability claim, clinical and 22 laboratory data may consist of the diagnoses and observations of 23 professionals trained in the field of psychopathology. The report of a 24 psychiatrist should not be rejected simply because of the relative 25 imprecision of the psychiatric methodology or the absence of 26 substantial documentation, unless there are other reasons to question 27 the diagnostic technique. 28 Sanchez v. Apfel, 85 F.Supp.2d 986, 992 (C.D. Cal .2000) (emphasis added; 8 1 citations omitted); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir.1989) 2 ( [T]he ALJ must give sufficient weight to the subjective aspects of a doctor s 3 opinion. ); see also 20 C.F.R. §§ 404.1528(b), 416.928(b) ( Psychiatric signs are 4 medically demonstrable phenomena that indicate specific psychological 5 abnormalities, e.g., abnormalities of behavior, mood, thought, memory, 6 orientation, development, or perception. They must also be shown by observable 7 facts that can be medically described and evaluated. ). 8 Here, before opining that plaintiff has a GAF of 45 and appears unable to 9 work (AR at 482), Dr. Jackson performed a psychological evaluation of plaintiff 10 and conducted at least eight face-to-face evaluation interviews with plaintiff 11 spanning a period of approximately five months. See id. at 480-84, 486-90. Dr. 12 Jackson explicitly stated that his psychological evaluation, which includes his 13 opinion concerning plaintiff s work restrictions, was based on a review of the 14 records and [the] evaluation interviews. Id. at 480. Notably, Dr. Jackson s 15 psychological evaluation incorporated independent findings concerning plaintiff s 16 mental impairments, including observations made during the course of the 17 evaluation interviews, results from the mental status examination, and clinical 18 diagnoses. See Sanchez, 85 F.Supp.2d at 992. 19 For example, Dr. Jackson found that plaintiff s [j]udgment, as measured by 20 hypothetical situations, was inconsistent, and that [t]here was evidence of 21 impulsivity and a tendency to take on inappropriate/unrealistic responsibility for 22 others. Id. at 481. Likewise, Dr. Jackson observed ongoing anxiety with 23 constant worry, foot jiggling, [and] pacing. Id. at 483. Based partly on his 24 findings and a review of the medical records, Dr. Jackson diagnosed Pedophilia, 25 Bipolar I Disorder, Polysubstance Dependence (alcohol, amphetamine), in 26 remission, and a GAF score of 45, indicating serious symptoms or any serious 27 impairment in social, occupational, or school functioning (e.g., no friends, unable 28 to keep a job). Id. at 481-82; DSM-IV at 34 (bold and capitalization omitted). In 9 1 sum, the ALJ s rejection of Dr. Jackson s opinion because it was based on 2 plaintiff s assertion that he cannot work mischaracterizes the bases for Dr. 3 Jackson s opinion and therefore was not a specific and legitimate reason supported 4 by substantial evidence. 5 Moreover, the ALJ s finding that the POC treatment notes failed to 6 substantiate plaintiff s assertions and Dr. Jackson s opinion (see id. at 34) is not 7 supported by substantial evidence. Indeed, a number of the ALJ s conclusions 8 concerning the POC treatment notes mischaracterize or misstate the record. First, 9 the ALJ found that the treatment notes do not show that plaintiff had any problems 10 getting along with others. Id. But the notes document that plaintiff discontinued 11 critical diabetes and hypertension treatment in May 2009 because of an 12 unpleasant interaction with [health provider] staff person and a disagreement/ 13 misunderstanding with [health provider] staff. Id. at 469, 472. The notes also 14 show that plaintiff became homeless in May 2009 because of disagreement w[ith 15 his]res[ident] m[a]n[a]g[e]r s way of doing business. Id. at 472. Moreover, on 16 December 16, 2008, Dr. Jackson indicated anger management concerns. See id. at 17 483 (listing [p]lan [to] . . . discuss anger m[a]n[a]g[e]m[en]t principles after 18 plaintiff stated he held onto anger since 1990 related to former wife s problems ). 19 Finally, plaintiff [n]oted difficulty of living in residence w[ith ]other parolees 20 (id. at 488), and [d]iscussed stress at residence (id. at 477), on September 23, 21 2008 and February 24, 2009, respectively. 22 Second, the ALJ found that the POC treatment notes generally show that 23 plaintiff was stable on medications and had no complaints. Id. at 34. But a 24 substantial portion of the evidence supporting the ALJ s opinion predates the 25 AOD. See id. at 479, 483-89, 491; Carmickle v. Comm'r, 533 F.3d 1155, 1165 26 (9th Cir. 2008) ( [m]edical opinions that predate the alleged onset of disability are 27 of limited relevance ). Moreover, even if plaintiff reacted positively to 28 medication (see, e.g., AR at 458, 461, 468, 477-78, 481), the conclusion does not 10 1 necessarily follow that plaintiff's mental condition had improved to the extent that 2 plaintiff could function in the workplace. See Kohler v. Astrue, 546 F.3d 260, 268 3 (2d Cir. 2008) (evidence that a claimant's medical condition is stable does not 4 necessarily mean that a claimant can work or that her medical condition has 5 improved). 6 In any event, the ALJ s conclusion that plaintiff had no complaints ignores 7 competent evidence, both before and after the AOD, suggesting that plaintiff 8 suffered various symptoms from his mental impairments. See, e.g., AR at 491 9 (plaintiff anxious on September 8, 2008), 483 ( ongoing anxiety with constant 10 worry on December 16, 2008), 481 ( ongoing anxiety with constant worry on 11 January 27, 2009), 477 ( considerable stress on February 24, 2009), 475 12 ( [r]ecent depression w[ith ]oversleeping on March 24, 2009), 464 ( mental 13 illness was serious and will require more intense follow up on August 11, 14 2009), 462 ( documenting a potential risk/major concern resulting from 15 plaintiff s homelessness; plaintiff extremely upset about being homeless and 16 confused as to what he should do August 12, 2009); see Gallant v. Heckler, 753 17 F.2d 1450, 1456 (9th Cir. 1984) ( Although it is within the power of the 18 [Commissioner] to make findings . . . and to weigh conflicting evidence, he cannot 19 reach a conclusion first, and then attempt to justify it by ignoring competent 20 evidence in the record that suggests an opposite result. ) (internal citation 21 omitted). 22 Third, while the ALJ found that the treatment notes do not show any 23 complaints of paranoia or other psychotic symptoms since the amended AOD (id. 24 at 34), this finding is misleading. A POC treatment note dated January 27, 2009, 25 documents A[uditory ]Hallucinations], and ongoing paranoia that is 26 reduced/not as intense[.] Id. at 478. While this treatment note predates the 27 AOD, it does so by a mere three days. 28 Finally, the ALJ found that the treatment notes show that plaintiff worked in 11 1 an automotive repair shop and worked in exchange for residence. Id. at 34. But 2 [o]ccasional symptom-free periods and even the sporadic ability to work are 3 not inconsistent with disability. Lester, 81 F.3d at 833. Here, while plaintiff 4 indicated he worked as an auto mechanic in January 2009, he described this work 5 as piece work/part-time work he performed for a friend. AR at 478. Moreover, 6 the record shows that plaintiff [s]topped working in March 2009. Id. at 475. 7 And while plaintiff was apparently working in exchange for residence in May 8 2009 (id. at 471), by August 2009 plaintiff was unemployed and homeless. Id. at 9 463. In sum, the ALJ s conclusion that the POC treatment notes fail to 10 substantiate plaintiff s claims is not supported by substantial evidence. 11 Dr. Borden 12 On May 6, 2009, Dr. Borden performed a psychological evaluation of 13 plaintiff. Id. at 274-277. Dr. Borden administered a series of tests to plaintiff and 14 reported the following results: (1) plaintiff achieved the low-average range score 15 of 86 on the Bender Visual-Motor Gestalt Test-II (id. at 276); (2) plaintiff fell in 16 the bottom 25th percentile on Trail Part A, and below the 10th percentile on Trail 17 Part B (id.); (3) results on the Wechsler Adult Intelligence Scale Third Edition 18 indicated a Verbal IQ score of 76, a Performance IQ score of 76, and a Full Scale 19 IQ score of 74 (id.); and (4) plaintiff achieved a score as 7 on the Rey 15-Item 20 Memory Test. Id. at 277. While scores of 7 or lower on the Rey 15-Item Memory 21 Test are believed to be indicative of malingering, Dr. Borden opined that it was 22 not believed that [plaintiff] was malingering because plaintiff appeared to put 23 forth adequate effort on other tasks. Id. Dr. Borden diagnosed plaintiff with: (1) 24 Axis I: history of schizoaffective disorder, pedophilia, and alcohol abuse (id.); (2) 25 Axis II: antisocial personality disorder (id.); (3) Axis III: no medical problems 26 reported; (4) Axis IV: psychosocial stressors and environmental factors: 27 homelessness (id.); and (5) Axis V: current GAF of 50. Id. According to Dr. 28 Borden, plaintiff s history of mental disorder would impact his ability to get along 12 1 with coworkers and maintain concentration, persistence, and pace on even simple 2 repetitive tasks. Id. Dr. Borden further indicated that plaintiff is unable to 3 withstand the stress of a routine workday. Id. 4 In his decision, the ALJ discredited Dr. Borden s opinion concerning 5 plaintiff s work restrictions. See AR at 33-34. According to the ALJ, Dr. 6 Borden s opinion is not consistent with the mental status examination performed 7 by Dr. Borden or with the treatment records from [POC]. Id. at 33. The ALJ 8 further found that Dr. Borden s opinion is also inconsistent with [plaintiff] s 9 presentation at the evaluation. Id. at 33. In addition, the ALJ noted: 10 Dr. Borden did not have available for her review records from [POC]. 11 Thus, it appears that Dr. Borden s opinion was based primarily on 12 [plaintiff] s subjective psychiatric history and diagnoses made while 13 he was incarcerated, which was prior to the amended [AOD], rather 14 than on objective findings and clinical evidence. 15 Id. at 33-34. The ALJ s reasons were not specific and legitimate reasons 16 supported by substantial evidence. 17 First, the ALJ found that Dr. Borden s opinion is not consistent with 18 plaintiff s mental status examination and plaintiff s presentation at the evaluation. 19 Id. at 33. But Dr. Borden s opinion accounts for plaintiff s psychological 20 evaluation results in their entirety. Here, by focusing strictly on the mental status 21 examination and plaintiff s presentation at the evaluation, the ALJ misstates or 22 mischaracterizes Dr. Borden s psychological evaluation results. See Gallant, 753 23 F.2d at 1456. Specifically, the ALJ fails to account for the following objective 24 findings made by Dr. Borden: (1) plaintiff s score on the Bender Visual-Motor 25 Gestalt Test-II was in the low-average range; (2) plaintiff scored in the 25th 26 percentile on the Trail Part A and he scored below the 10th percentile on the Trail 27 Part B; (3) plaintiff achieved a Full Scale IQ score of 74 and both Verbal and 28 Performance IQ scores of 76; and (4) plaintiff achieved a score of 7 on the Rey 1513 1 Item Memory Test. AR at 276-77. 2 In addition, [t]o say that medical opinions are not supported by sufficient 3 objective findings or are contrary to the preponderant conclusions mandated by the 4 objective findings does not achieve the level of specificity our prior cases have 5 required, even when the objective factors are listed seriatim. Embrey v. Bowen, 6 849 F.2d 418, 421 (9th Cir. 1988) (emphasis added). Here, [the ALJ] merely 7 states that the objective factors point toward an adverse conclusion and makes no 8 effort to relate any of these objective factors to any specific medical opinions and 9 findings he rejects. This approach is inadequate. Id. at 422. For example, it is 10 unclear how the fact that plaintiff arrived on time for the appointment, was 11 unaccompanied, and reported he is homeless and spends the day attending 12 appointments and visits a friend to bathe (AR at 33, 274-75), is inconsistent with 13 Dr. Borden s opinion that plaintiff would have difficulty getting along with co14 workers, maintaining concentration/persistence/pace on even simple repetitive 15 tasks, and withstanding the stress of a routine workday. Id. at 277. 16 Second, the ALJ found that Dr. Borden s opinion is not consistent with the 17 treatment records from the POC. Id. at 33-34. But as discussed above with 18 respect to Dr. Jackson, this is not a specific and legitimate reason to reject Dr. 19 Borden s opinion because the ALJ s summary of the POC treatment records 20 ignores competent evidence in the record that contradicts his findings. 21 Third, the ALJ stated that Dr. Borden did not review records from the POC, 22 and her opinion was therefore based primarily on plaintiff s subjective psychiatric 23 history and diagnoses made prior to the amended AOD, rather than on objective 24 findings and clinical evidence. Id. at 33-34. Contrary to what the ALJ states, 25 however, Dr. Borden s opinion relied on the results of a complete psychological 26 evaluation of plaintiff, including general observations, a review of plaintiff s 27 medical records, a mental status examination, clinical testing, and diagnostic 28 impressions. See id. at 274-77; Ryan, 528 F.3d at 1199-1200 ( [A]n ALJ does not 14 1 provide clear and convincing reasons for rejecting [a] . . . physician's opinion by 2 questioning the credibility of the patient's complaints where the doctor does not 3 discredit those complaints and supports his ultimate opinion with his own 4 observations. ); Sanchez, 85 F.Supp.2d at 992 ( [W]hen mental illness is the basis 5 of a disability claim, clinical and laboratory data may consist of the diagnosis and 6 observations of professionals trained in the field of psycholpathology. ) (citations 7 omitted). Moreover, medical records that predate the onset date can be relevant, 8 particularly in the case of progressive impairments. See Social Security Ruling 9 ( SSR ) 83-20.4 10 Accordingly, the ALJ failed to properly evaluate the medical evidence, 11 specifically the opinions of Drs. Jackson and Borden. 12 V. 13 REMAND IS APPROPRIATE 14 The decision whether to remand for further proceedings or reverse and 15 award benefits is within the discretion of the district court. McAllister v. Sullivan, 16 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 17 further proceedings, or where the record has been fully developed, it is appropriate 18 to exercise this discretion to direct an immediate award of benefits. See Benecke 19 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 20 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 21 turns upon their likely utility). But where there are outstanding issues that must be 22 resolved before a determination can be made, and it is not clear from the record 23 24 25 26 27 28 4 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan, 246 F.3d at 1203 n.1 (internal citations omitted). 15 1 that the ALJ would be required to find a plaintiff disabled if all the evidence were 2 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 3 Harman, 211 F.3d at 1179-80. 4 Here, as set out above, remand is required because the ALJ erred in failing 5 to properly evaluate the opinions of Drs. Jackson and Borden. On remand, the 6 ALJ shall reconsider the opinions provided by Drs. Jackson and Borden, and 7 either credit their opinions or provide adequate reasons under the appropriate legal 8 standard for rejecting any portion of their opinions. The ALJ shall then assess 9 plaintiff s RFC and proceed through steps four and five to determine what work, if 10 any, plaintiff is capable of performing. 11 VI. 12 CONCLUSION 13 IT IS THEREFORE ORDERED that Judgment shall be entered 14 REVERSING the decision of the Commissioner denying benefits, and 15 REMANDING the matter to the Commissioner for further administrative action 16 consistent with this decision. 17 18 DATED: March 27, 2013 19 20 SHERI PYM United States Magistrate Judge 21 22 23 24 25 26 27 28 16

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