Elizabethe Odisian v. Carolyn W Colvin, No. 2:2012cv09521 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM 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. (See document for details) (mrgo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ELIZABETHE ODISIAN, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) Case No. CV 12-9521-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On November 15, 2012, plaintiff Elizabethe Odisian filed a complaint 22 against the Commissioner of the Social Security Administration 23 ( Commissioner ), seeking a review of a denial of a period of disability and 24 disability insurance benefits ( DIB ). Both plaintiff and defendant have consented 25 to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 26 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral 27 argument. 28 1 1 Plaintiff presents three disputed issues for decision: (1) whether the 2 Administrative Law Judge ( ALJ ) properly rejected the opinions of plaintiff s 3 treating physicians; (2) whether the ALJ properly discounted plaintiff s credibility; 4 and (3) whether the ALJ properly determined plaintiff s residual functional 5 capacity ( RFC ). Memorandum in Support of Plaintiff s Complaint ( P. Mem. ) 6 at 4-13. Memorandum in Support of Defendant s Answer ( D. Mem. ) at 2-11. 7 Having carefully studied, inter alia, the parties s moving papers, the 8 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ: improperly rejected the opinions of plaintiff s 10 treating physicians; improperly discounted plaintiff s credibility; and failed to 11 properly consider the opinions of plaintiff s treating physicians in her RFC 12 determination. Therefore, this court remands the matter to the Commissioner in 13 accordance with the principles and instructions enunciated in this Memorandum 14 Opinion and Order. 15 II. 16 FACTUAL AND PROCEDURAL BACKGROUND 17 Plaintiff, who was thirty-nine years old on the date of her June 20, 2011 18 administrative hearing, is a high school graduate. AR at 44, 47, 135, 145. Her 19 past relevant work was as a cashier/checker and assistant manager. Id. at 33. 20 On December 22, 2009, plaintiff filed an application for a period of 21 disability and DIB due to severe depression, anxiety, irritability, difficulty 22 sleeping, panic attacks, physical pain, and difficultly concentrating. Id. at 135, 23 139. The Commissioner denied plaintiff s application initially and upon 24 reconsideration, after which she filed a request for a hearing. Id. at 71-76, 78-82, 25 84-85. 26 On June 20, 2011, plaintiff, represented by counsel, appeared and testified 27 at a hearing before the ALJ. Id. at 44-62. The ALJ also heard testimony from 28 2 1 Jane Hagen, a vocational expert. Id. at 59-61. On July 6, 2011, the ALJ denied 2 plaintiff s claim for benefits. Id. at 24-35. 3 Applying the well-known five-step sequential evaluation process, the ALJ 4 found, at step one, that plaintiff had not engaged in substantial gainful activity 5 since her alleged onset of disability, October 8, 2008. Id. at 26. 6 At step two, the ALJ found that plaintiff suffered from the following severe 7 impairments: depression and low-average intellectual functioning. Id. 8 At step three, the ALJ found that plaintiff s impairments, whether 9 individually or in combination, did not meet or medically equal one of the listed 10 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 11 Listings ). Id. at 28. The ALJ then assessed plaintiff s RFC,1 and determined that she had the 12 13 RFC to perform a full range of work at all exertional levels but limited to simple 14 repetitive tasks involving no more than limited contact with the general public. Id. 15 at 29. 16 The ALJ found, at step four, that plaintiff was incapable of performing her 17 past relevant work as a cashier/checker and assistant manager. Id. at 33. 18 At step five, the ALJ determined that, based upon plaintiff s age, education, 19 work experience, and RFC, there are jobs that exist in significant numbers in the 20 national economy that the claimant can perform, including hand packager, 21 cleaner, and laundry laborer. Id. at 34. Consequently, the ALJ concluded that 22 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 plaintiff did not suffer from a disability as defined by the Social Security Act. Id. 2 at 34-35. 3 Plaintiff filed a timely request for review of the ALJ s decision, which was 4 denied by the Appeals Council. Id. at 1-3. The ALJ s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines that the ALJ s findings are based on 13 legal error or are not supported by substantial evidence in the record, the court 14 may reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 19 relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s 22 finding, the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence. 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 4 1 the ALJ s decision, the reviewing court may not substitute its judgment for that 2 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 3 1992)). 4 IV. 5 DISCUSSION 6 A. The ALJ Failed to Provide Specific and Legitimate Reasons for 7 Rejecting the Opinions of the Treating Physicians 8 Plaintiff argues that the ALJ improperly rejected the opinions of his treating 9 physicians, Dr. Anthony E. Reading and Dr. Thomas A. Curtis.2 P. Mem. at 4-8. 10 Specifically, plaintiff contends that the ALJ s reasons for rejecting Dr. Reading s 11 and Dr. Curtis s opinions were not specific and legitimate. Id. The court agrees. 12 In determining whether a claimant has a medically determinable 13 impairment, among the evidence the ALJ considers is medical evidence. 20 14 C.F.R. § 404.1527(b). In evaluating medical opinions, the regulations distinguish 15 among three types of physicians: (1) treating physicians; (2) examining 16 physicians; and (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); 17 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). Generally, a 18 treating physician s opinion carries more weight than an examining physician s, 19 and an examining physician s opinion carries more weight than a reviewing 20 physician s. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 21 C.F.R. § 404.1527(c)(1)-(2). The opinion of the treating physician is generally 22 given the greatest weight because the treating physician is employed to cure and 23 has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 24 25 2 Psychologists are considered acceptable medical sources whose opinions are accorded the same weight as physicians. 20 C.F.R. § 404.1513(a)(2). 27 Accordingly, for ease of reference, the court will refer to Dr. Reading as a 28 physician. 26 5 1 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th 2 Cir. 1989). 3 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 4 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 5 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 6 81 F.3d at 830. If the treating physician s opinion is contradicted by other 7 opinions, the ALJ must provide specific and legitimate reasons supported by 8 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 9 and legitimate reasons supported by substantial evidence in rejecting the 10 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 11 non-examining physician, standing alone, cannot constitute substantial evidence. 12 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 13 Comm r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 14 813, 818 n.7 (9th Cir. 1993). 15 1. 16 Dr. Reading, a psychologist at UCLA Medical Center, treated plaintiff on Dr. Anthony E. Reading 17 31 occasions from October 13, 2008 through December 15, 2009. AR at 318-23. 18 Dr. Reading diagnosed plaintiff with: adjustment disorder with mixed anxiety and 19 depressed mood; and major depressive disorder, single episode, moderate to 20 severe without psychotic features. Id. at 328. Dr. Reading assigned a global 21 assessment of functioning ( GAF ) score of 48.3 22 23 24 25 3 A GAF rating of 41-50 indicates [s]erious symptoms . . . or any serious impairment in social, occupation, or school functioning (e.g., no friends, unable to 27 keep a job, cannot work). Am. Psychiatric Ass n, Diagnostic and Statistical 28 Manual of Mental Disorders 34 (4th Ed. 2000) ( DSM ). 26 6 1 In a report dated October 9, 2009, Dr. Reading wrote a brief synopsis, on 2 average of three to four sentences, of each visit.4 Id. at 319-23. Each synopsis 3 primarily reflected plaintiff s reports of her symptoms. Id. Dr. Reading did not 4 attach the actual treatment notes. Dr. Reading also discussed the mental status 5 examination and the various psychological tests he employed. Id. at 325-28. Dr. 6 Reading noted that plaintiff was cooperative, responsive, established appropriate 7 eye contact, had clear speech, and was oriented at the examination. Id. at 325. Dr. 8 Reading also reported that plaintiff was often tearful and agitated, she had poor 9 concentration, her cognitive functioning was often disorganized, and her test 10 scores on four psychological tests showed elevated scores in a number of 11 categories including depression and anxiety. Id. at 325-28. 12 In a Mental Disorder Questionnaire Form, dated July 12, 2010, Dr. Reading 13 wrote that plaintiff had a depressed mood that interfered with her daily activities 14 and that she was also anxious. Id. at 314-15. Dr. Reading also indicated that 15 plaintiff had poor grooming, was unable to perform household chores, was fearful 16 of leaving her house, and had poor concentration. Id. at 316-17. 17 2. 18 Dr. Curtis, a psychiatrist, treated plaintiff from January 14, 2009 through at Dr. Thomas A. Curtis 19 least February 8, 2012. Id. at 445, 449. Dr. Curtis began treating plaintiff in 20 response to a worker s compensation claim. Id. at 252. 21 In a Permanent and Stationary Report, dated September 24, 2009, Dr. Curtis 22 diagnosed plaintiff with depressive disorder not otherwise specified with anxiety, 23 post-traumatic reaction, and panic attacks, and assigned a GAF score of 47. Id. at 24 423. Dr. Curtis based his diagnosis on his consultations, mental status 25 26 4 Dr. Reading s opinion was dated October 9, 2009, but this appears to be a 27 typographical error as he discussed appointments occurring after that date. AR at 28 319, 323. 7 1 examination, and psychological tests. Id. at 416-23. Dr. Curtis noted subjective 2 feelings of frustration and depression and objective factors such as sobbing and a 3 sad affect at the clinical visits. See, e.g., id. at 368-69. During the mental status 4 examination, Dr. Curtis observed that, inter alia, plaintiff had distressed speech, 5 had a markedly depressed facial expression, demonstrated diminished cognitive 6 functioning, and had concentration, attention, and short-term memory deficits. Id. 7 at 416. The psychological tests results showed that plaintiff had multiple elevated 8 scores on numerous scales, including negative impression, depression, and 9 anxiety. Id. at 417-23. 10 Dr. Curtis also completed a Mental Residual Capacity Questionnaire, dated 11 February 8, 2012.5 Id. at 445-49. Dr. Curtis identified the signs and symptoms 12 supporting his diagnoses and opined that plaintiff would be unable to meet 13 competitive standards in almost all of the categories of mental abilities and 14 aptitudes to do unskilled work, semiskilled, and skilled work. Id. at 447-48. 15 3. 16 Dr. Brawer, a consultative psychologist, examined plaintiff on June 8, 2010. Dr. Steven I. Brawer 17 Id. at 278-83. Dr. Brawer observed that plaintiff had clear speech and an adequate 18 attention span. Id. at 280-81. Dr. Brawer performed an intelligence and memory 19 test on plaintiff and determined that she had low average intelligence and memory. 20 Id. at 281-82. Based on the examination, Dr. Brawer diagnosed plaintiff with 21 depressive disorder, not otherwise specified. Id. at 282. Dr. Brawer opined that 22 plaintiff would be able to learn a simple, repetitive task and would be able to 23 perform some detailed, varied, or complex tasks. Id. at 283. 24 25 26 27 5 The questionnaire was completed after the ALJ issued her decision and was 28 submitted with plaintiff s request for review to the Appeals Council. 8 1 4. 2 Dr. Tashjian, a State Agency physician, reviewed Dr. Brawer s and Dr. Dr. R. Tashjian 3 Curtis s opinion. Id. at 284-97. Dr. Tashjian opined that plaintiff would be 4 moderately limited in her ability to: understand, remember, and carry out detailed 5 instructions; maintain attention and concentration for extended periods; interact 6 appropriately with the general public; and respond appropriately to changes in the 7 work setting. Id. at 284-85. Dr. Tashjian further opined that plaintiff could 8 perform simple repetitive tasks. Id. at 286. 9 10 5. The ALJ s Findings In reaching his decision, the ALJ rejected the opinions of both Dr. Reading 11 and Dr. Curtis on the grounds that the opinions were unsupported by the record as 12 a whole and were based on plaintiff s subjective allegations. Id. at 31-32. The 13 ALJ also specifically rejected Dr. Reading s opinion because there was no 14 evidence that he was a treating source and Dr. Curtis s opinion because he was 15 retained in relation to plaintiff s worker s compensation claim. Id. at 31. None of 16 these reasons were supported by substantial evidence. 17 First, the ALJ rejected both treating physicians s opinions because their 18 assessments were incompatible with the record as a whole. Id. at 31-32. The ALJ 19 found that the opinions were inconsistent with the record because plaintiff did not 20 require inpatient psychiatric care or intensive outpatient therapy, performed well 21 on mental status testing, showed no signs of psychosis, and showed no signs of 22 significant behavioral and cognitive deficits. Id. Inconsistency with the medical 23 record is a specific and legitimate reason for rejecting an opinion. See 24 Magallanes, 881 F.2d at 751-54 (affirming rejection of physician s opinion 25 because it was inconsistent other medical evidence). But here, substantial 26 evidence does not support the ALJ s reasons. 27 28 9 1 The ALJ correctly noted that plaintiff did not require inpatient psychiatric 2 care or intensive outpatient therapy, but that alone is insufficient to find her not 3 disabled. See, e.g., Kuharski v. Colvin, No. 12-1055, 2013 WL 3766576, at *5 4 (E.D. Cal. Jul. 16, 2013) ( The fact that plaintiff had not been hospitalized for a 5 psychiatric crisis does not mean that his treatment was conservative or that he 6 could function in a normal working environment. ); Finn v. Astrue, No. 11-1388, 7 2013 WL 501661, at *5 (C.D. Cal. Feb. 7, 2013) (lack of hospitalization was not a 8 specific and legitimate reason to reject the ALJ s opined mental limitations); 9 Matthews v. Astrue, No. 11-1075, 2012 WL 1144423, at *9 (C.D. Cal. Apr. 4, 10 2012) ( Claimant does not have to undergo inpatient hospitalization to be 11 disabled ). Indeed, although plaintiff was not hospitalized, she was actively 12 treated with therapy and medications. See AR at 318-23, 377, 445; see also Finn, 13 2013 WL 501661, at *5 (active psychotherapy and anti-depressants supported 14 physician s opined limitations). 15 Further, contrary to the ALJ s determination, plaintiff did not perform well 16 on mental status testing. Dr. Reading, Dr. Curtis, and Dr. Brawer all conducted a 17 mental status examination and performed tests on plaintiff. With regard to the 18 mental status examinations themselves, both Dr. Reading and Dr. Curtis noted that 19 plaintiff was tearful or markedly depressed, had diminished cognitive functioning, 20 and had concentration issues. AR at 325, 416. As for the psychological tests, Dr. 21 Reading and Dr. Curtis performed psychological tests on plaintiff, which showed 22 elevated levels of, inter alia, depression and anxiety. See id. at 326-28, 417-23. In 23 contrast, Dr. Brawer performed memory and intelligence tests, which produced 24 below average results. See id. at 281-82. Dr. Reading and Dr. Curtis s findings 25 may have been inconsistent with Dr. Brawer s findings but they were not 26 inconsistent with the record as a whole. 27 28 10 1 The ALJ also concluded that the treating physician s opinions were 2 unsupported because plaintiff showed no signs of psychosis and there were no 3 signs of significant behavioral and cognitive deficits. Id. at 31. Plaintiff can be 4 disabled without suffering from an actual psychosis. As for significant behavioral 5 and cognitive deficits, although both Dr. Reading and Dr. Curtis noted, inter alia, 6 that plaintiff exhibited disorganized or diminished cognitive functioning, had poor 7 concentration, and often sobbed during sessions (see, e.g., id. at 321, 326, 353, 8 368, 416), there is also evidence to support the ALJ s conclusion that the deficits 9 were not significant. See, e.g., id. at 274, 280-81, 325. Taken as a whole, 10 however, the evidence does not support the ALJ s conclusion that the opinions of 11 Dr. Reading and Dr. Curtis were unsupported by the record. 12 The ALJ s second reason for rejecting Dr. Reading s and Dr. Curtis s 13 opinions was that the opinions were based primarily on plaintiff s subjective 14 complaints. Id. at 31-32. As an initial matter, neither Dr. Reading nor Dr. Curtis 15 based their opinions solely on plaintiff s subjective complaints. In his report, Dr. 16 Reading indicated when plaintiff was tearful, appeared depressed, or was having 17 trouble concentrating during their sessions, conducted an objective mental status 18 examination, and performed psychological tests. Id. at 319-28. Dr. Curtis s 19 treatment notes and reports indicated similar symptoms and test results. See, e.g., 20 id. at 368, 417-23. To the extent that their opinions were based on plaintiff s 21 subjective complaints, an opinion of disability premised to a large extent upon 22 the claimant s own accounts of his symptoms and limitations may be disregarded, 23 once those complaints have themselves been properly discounted. Andrews v. 24 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Here, as discussed infra, the ALJ 25 failed to properly discount plaintiff s complaints. As such, the ALJ cannot 26 properly disregard Dr. Reading s and Dr. Curtis s opinions on the basis that they 27 were based, in large part, on plaintiff s subjective allegations. 28 11 1 The ALJ also specifically discounted Dr. Reading s opinion on the basis 2 that, other than Dr. Reading s report, there was no evidence that Dr. Reading was 3 a treating source. AR at 27, 31. The ALJ correctly noted that the record contains 4 none of Dr. Reading s treatment notes. Id. But the court disagrees that the report 5 was insufficient to establish a treating relationship. Ordinarily, treatment notes 6 would be necessary to establish a treating relationship. But in this instance, Dr. 7 Reading indicated that he was a treating physician in the report, provided the dates 8 of the visits, and appeared to summarize his treatment notes for each of the thirty9 one consultations. The ALJ did not conclude that the summaries of the 10 consultations were fabricated or did not support Dr. Reading s opinion. And 11 particularly given the significant level of detail in Dr. Reading s report, there is no 12 reason to believe that Dr. Reading fabricated those consultations. See Lester, 81 13 F.3d at 832 ( The Secretary may not assume that doctors routinely lie in order to 14 help their patients collect disability benefits. ) (citation omitted). 15 Moreover, plaintiff correctly notes that in its request to Dr. Reading, the 16 Commissioner stated that [a] narrative report, copies of your records, or 17 completion of any attached forms are equally satisfactory. AR at 312. Dr. 18 Reading, following the Commissioner s own instructions, provided a highly 19 detailed narrative report that summarized each of plaintiff s visits. Nevertheless, 20 plaintiff is not faultless. During the hearing, the ALJ noted the dearth of records, 21 indicated that he wanted the treatment records, and gave plaintiff two weeks to 22 obtain all the treatment records. Id. at 48-49, 53-54. Plaintiff only submitted 23 additional records from Dr. Curtis. Although the court finds that the report 24 adequately established a treating relationship, because this case will be remanded, 25 on remand plaintiff should supply the ALJ with the treatment notes. 26 Finally, the ALJ specifically rejected Dr. Curtis s opinion because he was 27 retained in relation to plaintiff s worker s compensation claim. Id. at 31. An ALJ 28 may not reject a report solely on the basis that the source was a physician hired by 12 1 claimant for a worker s compensation claim. Nguyen v. Chater, 100 F.3d 1462, 2 1464-65 (9th Cir. 1996) (noting that the source of a report is a factor that justifies 3 rejection only if there is evidence of actual impropriety or no medical basis for that 4 opinion). In other words, the ALJ may not presume bias. See Lester, 81 F.3d at 5 832. An ALJ may reject a physician s ultimate disability assessment if made on 6 worker s compensation grounds because the evaluation differs from the one 7 conducted on social security grounds. See Booth v. Barnhart, 181 F. Supp. 2d 8 1099, 1104 (C.D. Cal. 2002). But an ALJ may not reject the objective medical 9 findings of a physician retained for a worker s compensation case. See id. at 1105 10 (citing Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984)). Because there is no 11 evidence of impropriety or bias, the ALJ improperly rejected Dr. Curtis s opinion 12 on the basis that he was hired in relation to plaintiff s worker s compensation 13 claim.6 14 Accordingly, the ALJ erred because she failed to provide specific and 15 legitimate reasons supported by substantial evidence for rejecting Dr. Reading s 16 and Dr. Curtis s opinions. 17 B. The ALJ Failed to Give Clear and Convincing Reasons for Discounting 18 Plaintiff s Subjective Complaints 19 Plaintiff complains that the ALJ failed to provide legally sufficient reasons 20 for discounting her credibility. P. Mem. at 9-10. The court agrees. 21 An ALJ must make specific credibility findings, supported by the record. 22 Social Security Ruling ( SSR ) 96-7p.7 To determine whether testimony 23 24 6 The ALJ correctly notes that plaintiff failed to provide the opinions of other 25 examining physicians from her worker s compensation claim. On remand, the ALJ may seek those records. 26 7 The Commissioner issues Social Security Rulings to clarify the Act s 27 implementing regulations and the agency s policies. SSRs are binding on all 28 components of the SSA. SSRs do not have the force of law. However, because 13 1 concerning symptoms is credible, an ALJ engages in a two-step analysis. 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, an ALJ 3 must determine whether a claimant produced objective medical evidence of an 4 underlying impairment which could reasonably be expected to produce the pain 5 or other symptoms alleged. Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 6 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 7 malingering, an ALJ can reject the claimant s testimony about the severity of her 8 symptoms only by offering specific, clear and convincing reasons for doing so. 9 Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 10 2003). An ALJ may consider several factors in weighing a claimant s credibility, 11 including: (1) ordinary techniques of credibility evaluation such as a claimant s 12 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 13 of treatment; and (3) a claimant s daily activities. Tommasetti v. Astrue, 533 F.3d 14 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 15 At the first step, the ALJ found that plaintiff s medically determinable 16 impairments could reasonably be expected to cause the symptoms alleged. AR at 17 30. At the second step, because the ALJ did not find any evidence of malingering, 18 the ALJ must provide clear and convincing reasons for finding plaintiff less 19 credible. Here, the ALJ discounted plaintiff s credibility because: (1) of highly 20 inconsistent statements concerning her daily activities; (2) conservative 21 treatment; and (3) her demeanor at the hearing. Id. at 32. These reasons were not 22 supported by substantial evidence. 23 First, the ALJ determined that plaintiff made highly inconsistent statements 24 regarding her ability to perform daily living activities. Id. The ALJ noted that in 25 26 they represent the Commissioner s interpretation of the agency s regulations, we 27 give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th 28 Cir. 2001) (internal citations omitted). 14 1 contrast to her testimony that she had minimal ability to care for herself and 2 perform household activities, she denied any such problems to Dr. Brawer and Dr. 3 Michael S. Wallack, a consultative internist. Id. The record does not support the 4 ALJ s conclusions. In May 2010, plaintiff reported to Dr. Wallack that she drove 5 and did some light cooking and cleaning. Id. at 270. Plaintiff reported to Dr. 6 Brawer in June 2010 that she could dress and bathe herself, did household chores, 7 but did not cook, shop or, run errands. Id. at 280. At the hearing in June 2011, 8 plaintiff testified that she barely cooks, does not shop, and drives only very short 9 distances. Id. at 55-56. At most, these statements may be characterized as minor 10 inconsistencies about how much cooking and driving plaintiff did, and certainly 11 do not rise to the level of inconsistency required to discount her credibility. 12 Moreover, plaintiff s statements are by and large consistent with other statements 13 she made concerning her ability to perform daily activities. In a Function Report 14 dated May 25, 2010, plaintiff stated that relatives helped with cooking, cleaning, 15 and shopping, and she picked up her children from school but did not drive much 16 otherwise. Id. at 183-89. Plaintiff reported to Dr. Curtis that she required 17 assistance with daily chores, cooking, cleaning, and shopping. Id. at 218. 18 Second, the ALJ found that plaintiff only received conservative treatment, 19 noting that there was no credible evidence of regular usage of strong medication 20 and that she did not require inpatient psychiatric care or intensive outpatient 21 therapy. Id. at 31-32. Evidence of conservative treatment may be sufficient to 22 discount a claimant s credibility. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 23 2007). But it is not clear that plaintiff s treatment was conservative. As 24 discussed above, the fact that plaintiff had not been hospitalized suggests 25 conservative treatment, but that fact alone is insufficient. See, e.g., Kuharski, 26 2013 WL 3766576, at *5; Matthews, 2012 WL 1144423, at *9 (finding that 27 claimant s care was not conservative because although claimant was not 28 hospitalized, he received outpatient care and took psychotropic medication). Here, 15 1 plaintiff was treated with several psychiatric medications since January 2009, 2 attended 31 sessions with a psychologist over a fifteen-month period, and saw a 3 psychiatrist on a monthly basis. AR at 319-23, 445. The strength of plaintiff s 4 medication, if low dosage, may indicate conservative treatment, but the record 5 only contains two references to medication dosages, neither of which supports the 6 ALJ s finding. See id. at 210, 339 7 Finally, the ALJ cited plaintiff s demeanor at the hearing as a basis for 8 finding her less credible. Id. at 32. The ALJ noted that plaintiff s thoughts did not 9 seem to wander and she answered all the questions appropriately and alertly. Id. 10 An ALJ may properly consider a claimant s demeanor in a credibility analysis. 11 Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002). But an ALJ may not 12 reject a claimant s testimony on that ground alone. Orn v. Astrue, 495 F.3d 625, 13 639 (9th Cir. 2007). Because the ALJ s other reasons for discounting plaintiff s 14 credibility do not withstand scrutiny, plaintiff s hearing demeanor alone is 15 insufficient to support the ALJ s credibility finding. 16 Accordingly, the ALJ failed to provide clear and convincing reasons 17 supported by substantial evidence for discounting plaintiff s credibility. 18 C. The ALJ Must Reconsider Plaintiff s RFC 19 Plaintiff argues that the ALJ s RFC determination was inconsistent with the 20 medical evidence. P. Mem. at 11-13. Specifically, plaintiff argues that the ALJ 21 failed to consider the opinions of the treating physicians. Id. at 11. 22 RFC is what one can still do despite [his or her] limitations. 20 C.F.R. 23 § 404.1545(a)(1). The Commissioner reaches an RFC determination by reviewing 24 and considering all of the relevant evidence. Id. 25 As discussed above, the ALJ improperly rejected the opinions of Dr. 26 Reading and Dr. Curtis. The ALJ must reconsider the opinions of Dr. Reading and 27 Dr. Curtis, and if she credits them she must then reconsider plaintiff s RFC. 28 16 1 Plaintiff also contends that the ALJ misstated Dr. Tashjian s opinion, and 2 that Dr. Brawer s opinion is not supported by substantial evidence. P. Mem. at 11. 3 Plaintiff correctly notes that the ALJ omitted two of the moderate limitations that 4 Dr. Tashjian opined. AR at 284-85. The court disagrees, however, that Dr. 5 Brawer s opinion was not supported by substantial evidence because Dr. Brawer 6 did not review plaintiff s medical records. An independent examination 7 constitutes substantial evidence. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 8 (9th Cir. 2001). 9 In any event, given the ALJ s error in rejecting the opinions of plaintiff s 10 treating physicians, the ALJ must reconsider her RFC determination. 11 V. 12 REMAND IS APPROPRIATE 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 16 further proceedings, or where the record has been fully developed, it is appropriate 17 to exercise this discretion to direct an immediate award of benefits. See Benecke 18 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 19 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 20 turns upon their likely utility). But where there are outstanding issues that must be 21 resolved before a determination can be made, and it is not clear from the record 22 that the ALJ would be required to find a plaintiff disabled if all the evidence were 23 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 24 Harman, 211 F.3d at 1179-80. 25 Here, as set out above, remand is required because the ALJ erred in failing 26 to properly evaluate Dr. Reading s and Dr. Curtis s opinions and plaintiff s 27 credibility. The ALJ s RFC determination was also based on an improper 28 rejection of Dr. Reading s and Dr. Curtis s opinions. On remand, the ALJ shall: 17 1 (1) reconsider the opinions provided by Dr. Reading and Dr. Curtis, and either 2 credit their opinions or provide specific and legitimate reasons supported by 3 substantial evidence for rejecting them; (2) reconsider plaintiff s subjective 4 complaints and the resulting limitations, and either credit plaintiff s testimony or 5 provide clear and convincing reasons for rejecting them; and (3) reconsider her 6 RFC determination. The ALJ shall then proceed through steps four and five to 7 determine what work, if any, plaintiff is capable of performing. 8 VI. 9 CONCLUSION 10 IT IS THEREFORE ORDERED that Judgment shall be entered 11 REVERSING the decision of the Commissioner denying benefits, and 12 REMANDING the matter to the Commissioner for further administrative action 13 consistent with this decision. 14 15 DATED: September 18, 2013 16 17 SHERI PYM United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 18

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