Deleo v. Astrue, No. 2:2007cv02444 - Document 29 (D. Ariz. 2008)

Court Description: ORDER granting 16 Plaintiff's Motion for Summary Judgment and denying 22 Defendant's Cross-Motion for Summary Judgment. This case is Remanded for further proceedings consistent with this order. Signed by Judge G Murray Snow on 11/12/08.(LSP)
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Deleo v. Astrue Doc. 29 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, Commissioner of) ) Social Security, ) ) Defendant. ) ) MARK E. DELEO, No. CV-07-2444-PHX-GMS ORDER 16 17 Pending before the Court are the Motion for Summary Judgment of Plaintiff Mark E. 18 Deleo (Dkt. # 16) and the Cross-Motion for Summary Judgment of Defendant Michael J. 19 Astrue, Commissioner of Social Security (Dkt. # 22). For the reasons set forth below, the 20 Court grants Plaintiff’s motion and denies Defendant’s cross-motion. 21 BACKGROUND 22 On April 21, 2005, Plaintiff applied for disability benefits, alleging a disability onset 23 date of April 12, 2005. (R. at 21; R. at 75-77.) Plaintiff’s claim was denied both initially and 24 upon reconsideration. (R. at 21; R. at 65-67, 70-72.) Plaintiff then appealed to an 25 Administrative Law Judge (“ALJ”). (R. at 21; R. at 86-93.) The ALJ conducted a hearing 26 on the matter on March 6, 2007. (R. at 21; R. at 300-31.) 27 28 Dockets.Justia.com 1 In evaluating whether Plaintiff was disabled, the ALJ undertook the five-step 2 sequential evaluation set forth in 20 C.F.R. § 404.1520 (2003).1 (R. at 21-27.) At step one, 3 the ALJ determined that Plaintiff had not engaged in substantial gainful activity. (R. at 23.) 4 At step two, the ALJ determined that Plaintiff suffered from the severe impairments of 5 affective disorder, attention deficit hyperactivity disorder, Asperger’s syndrome, and anxiety 6 disorder. (Id.) At step three, the ALJ determined that none of these impairments, either 7 alone or in combination, met or equaled any of the Social Security Administration’s listed 8 impairments. (Id.) 9 At step four, the ALJ made a determination of Plaintiff’s residual functional capacity 10 (“RFC”),2 concluding that Plaintiff had no exertional limitations but was limited to simple 11 tasks and low stress work with no high production quotas and only minimal interaction with 12 the public, co-workers, and supervisors. (R. at 24.) The ALJ thus determined that Plaintiff 13 14 1 Under that test: 15 A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education. 16 17 18 19 20 21 22 23 24 25 26 27 28 Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007) (internal citations and quotations omitted). 2 RFC is the most the claimant can do despite the limitations caused by his impairments. See SSR 96-8p (July 2, 1996). -2- 1 retained the RFC to perform his past relevant work as a grocery stocker and produce worker. 2 (R. at 26.) The ALJ also reached step five, determining that Plaintiff could perform a 3 significant number of other jobs in the national economy that met his RFC limitations. (R. 4 at 27.) Therefore, the ALJ concluded that Plaintiff was not disabled. (Id.) 5 The Appeals Council decided to review the decision. (R. at 8-11.) The Council 6 accepted the ALJ’s statements of the law, the issues in the case, and the evidentiary facts, as 7 well as the ALJ’s findings and ultimate conclusions regarding whether Plaintiff was disabled. 8 (R. at 8.) The Council, however, supplemented the ALJ’s decision with additional rationale. 9 (R. at 9-10.) The Council thereupon agreed that Plaintiff was not disabled. (R. at 11.) 10 Plaintiff filed the complaint underlying this action on December 4, 2007, seeking this 11 Court’s review of the ALJ’s denial of benefits.3 (Dkt. # 1.) Plaintiff filed his Motion for 12 Summary Judgment on May 15, 2008. (Dkt. # 16.) Defendant filed his Cross-Motion for 13 Summary Judgment on June 5, 2008. (Dkt. # 22.) DISCUSSION 14 15 I. Standard of Review 16 A reviewing federal court will only address the issues raised by the claimant in the 17 appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 18 A federal court may set aside a denial of disability benefits only if that denial is either 19 unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 20 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a 21 preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence which, 22 considering the record as a whole, a reasonable person might accept as adequate to support 23 a conclusion.” Id. (quotation omitted). 24 25 26 27 28 3 Plaintiff was authorized to file this action by 42 U.S.C. § 405(g) (2004) (“Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . .”). -3- 1 However, the ALJ is responsible for resolving conflicts in testimony, determining 2 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 3 1995). 4 interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 5 Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 6 reviewing court must resolve conflicts in evidence, and if the evidence can support either 7 outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 8 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 9 II. “When the evidence before the ALJ is subject to more than one rational Analysis 10 Plaintiff argues that the ALJ’s decision, even as supplemented by the Appeals 11 Council, was erroneous because: (A) the decision improperly rejects the opinion of Dr. 12 Levitt, a treating physician (Dkt. # 21 at 3-8); (B) the decision improperly rejects the opinion 13 of Dr. Lawrence, another treating physician (id. at 8-14); (C) the decision improperly rejects 14 the opinion of Dr. Tromp, an examining physician (id. at 14-17); (D) the decision improperly 15 relies on the opinion of Dr. Rothbaum, a non-examining, non-testifying physician (id. at 17- 16 21); and (E) the decision improperly rejects Plaintiff’s subjective complaint testimony (id. 17 at 21-25). 18 A. 19 Plaintiff argues that the decision of the ALJ, as supplemented by the Appeals Council, 20 21 Rejection of Dr. Levitt’s Opinion improperly rejects the opinion of Dr. Levitt, a treating physician. (Dkt. # 21 at 3-8.) 1. Legal Standard 22 “The medical opinion of a claimant’s treating physician is entitled to ‘special 23 weight.’” Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989) (quoting Embrey v. Bowen, 24 849 F.2d 418, 421 (9th Cir. 1988)). “The ALJ may disregard the treating physician’s 25 opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision 26 must itself be based on substantial evidence.” Id. at 762 (internal quotations omitted). “The 27 ALJ can meet this burden by setting out a detailed and thorough summary of the facts and 28 -4- 1 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 2 Embrey, 849 F.2d at 421 (quotation omitted). 3 Moreover, clear and convincing reasons are required to reject a treating physician’s 4 subjective judgments and ultimate conclusions. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 5 1996); Embrey, 849 F.2d at 422 (“The subjective judgments of treating physicians are 6 important, and properly play a part in their medical evaluations. Accordingly, the ultimate 7 conclusions of those physicians must be given substantial weight; they cannot be disregarded 8 unless clear and convincing reasons for doing so exist and are set forth in proper detail.”). 2. 9 Application 10 Plaintiff disputes the ALJ’s decision to partly reject Dr. Levitt’s medical assessment 11 of Plaintiff’s ability to perform work-related activity. (R. at 261-62.) In the assessment, Dr. 12 Levitt explained that Plaintiff has a “moderately severe” impairment (i.e., an impairment that 13 “seriously affects ability to function”) in his abilities to “relate to other people,” “respond 14 appropriately to co-workers,” “respond to customary work pressures,” “perform complex 15 tasks,” and “complete a normal workday/workweek without interruptions from 16 psychologically based symptoms and to perform at a consistent pace without an unreasonable 17 number/length of rest periods.”4 (Id.) Dr. Levitt further provided that these limitations lasted 18 for more that twelve months. (R. at 262.) According to the testifying vocational expert, the 19 limitations described by Dr. Levitt, if accepted as true, would preclude the ability to sustain 20 work on a regular and continuing basis. (See R. at 329-30.) 21 The ALJ made the following assessment of Dr. Levitt’s opinion: The opinion of Michael Levitt, M.D., dated January 8, 2007, is given some weight because significant limitations in the claimant’s ability to deal with the public, co-workers, supervisors, and work stresses are supported by the evidence as a whole. However, the undersigned finds that a moderately 22 23 24 25 26 27 28 4 The eight other assessments Dr. Levitt made indicated impairments that were either mild (i.e., “suspected impairment of slight importance which does not affect ability to function”) or moderate (i.e., “an impairment which affects but does not preclude ability to function”). (R. at 261-62.) -5- 3 severe limitation in his ability to complete a normal workday/workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number/length of rest periods is not supported by the evidence of record for a continuous period of 12 months. 4 (R. at 26.) The ALJ provided no further explanation, and the Appeals Council offered no 5 supplemental reasoning on this point. (See R. at 8-10.) 1 2 6 By failing to explain what “evidence of record” contradicted Dr. Levitt’s opinion, the 7 ALJ committed reversible error. “To say that medical opinions are not supported by 8 sufficient objective findings or are contrary to the preponderant conclusions mandated by the 9 objective findings does not achieve the level of specificity our prior cases have required, 10 even when the objective factors are listed seriatim.” Embrey, 849 F.2d at 421. Rather, “[t]he 11 ALJ must do more than offer his conclusions. He must set forth his own interpretations and 12 explain why they, rather than the doctors’, are correct.” Id. at 421-22 (emphasis added). 13 Further, because Dr. Levitt was offering both a subjective judgment and an ultimate 14 conclusion (as to whether Plaintiff could “complete a normal workday/workweek”), the ALJ 15 was required to provide not only specific and legitimate reasons for rejecting his opinion, but 16 clear and convincing reasons for doing so, Lester, 81 F.3d at 830; Embrey, 849 F.2d at 422, 17 and those reasons must be “set forth in proper detail,” Embrey, 849 F.2d at 422. In this case, 18 the ALJ did not offer any explanation for rejecting Dr. Levitt’s assessment, much less 19 provide detail for his reasoning. (See R. at 26.) Thus, the ALJ erred. 20 Defendant argues that the global assessment of functioning (“GAF”)5 scores in Dr. 21 Levitt’s progress treatment notes “contradict his . . . January 2007 check-off opinion,” and 22 thus that the ALJ properly rejected Dr. Levitt’s opinion. (Dkt. # 24 at 9.) This argument 23 fails for three reasons. First, the ALJ never based his rejection of Dr. Levitt’s opinion on 24 those scores; the ALJ simply stated that the opinion “is not supported by the evidence of 25 record.” (R. at 26.) The ALJ only mentioned GAF scores in rejecting Plaintiff’s subjective 26 5 27 28 The GAF scale ranges from 1 to 100 and reflects a person’s overall psychological, social, and occupational functioning. See Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed. 2000) (hereinafter “DSM-IV”). -6- 1 complaint testimony. (See id.) Because a district court may not affirm the ALJ’s decision 2 on a ground that the ALJ did not invoke in making his decision, Pinto v. Massanari, 249 F.3d 3 840, 847-48 (9th Cir. 2001), the Court cannot assume that the ALJ based his decision on 4 these scores. 5 Second, the ALJ’s conclusion that Plaintiff’s GAF scores “are all in the moderate or 6 better range” is not supported by the evidence. Plaintiff was determined to have a GAF score 7 of 45 on four separate occasions throughout 2005 and 2006. (R. at 171, 201, 233, 276.) 8 GAF scores between 41 and 50 are not in the “moderate symptoms” range, but rather indicate 9 “serious symptoms” such as “serious impairment in social, occupational, or school 10 functioning (e.g., no friends, unable to keep a job).” DSM-IV, supra, at 34 (emphasis 11 added). Thus, to the extent that the ALJ intended to rely on “all” of Plaintiff’s GAF scores 12 being in the “moderate or better range” in discounting Dr. Levitt’s opinion, there is not 13 substantial evidence to sustain the ALJ’s conclusion. 14 Third, and finally, even if the ALJ intended to rely on the GAF scores, and even if the 15 GAF scores could constitute substantial evidence, the ALJ still did not “explain why [his 16 interpretation], rather than the doctor[’]s, [is] correct.” Embrey, 849 F.2d at 422. Rather, the 17 ALJ’s lone conclusory sentence on the GAF scores constitutes, at best, the “objective factors 18 [] listed seriatim” that the Ninth Circuit has found insufficient. Id. at 421. Thus, the ALJ 19 would not have provided sufficient detail in explaining why the GAF scores outweighed Dr. 20 Levitt’s opinion. 21 For all these reasons, the ALJ has committed reversible error. 22 B. 23 Plaintiff argues that the decision of the ALJ, as supplemented by the Appeals Council, 24 Rejection of Dr. Lawrence’s Opinion improperly rejects the opinion of Dr. Lawrence, a treating physician. (Dkt. # 21 at 8-14.) 25 26 27 28 -7- 1. 1 Legal Standard 2 Because Dr. Lawrence is a treating physician, the legal standard applicable to his 3 opinion is the same as the legal standard applicable to Dr. Levitt’s opinion. See supra Part 4 II.A.1. 2. 5 6 7 Application Plaintiff disputes the ALJ’s decision to reject two opinions offered by Dr. Lawrence. Each will be discussed in turn. a. 8 June 7, 2005 Assessment 9 On June 7, 2005, Dr. Lawrence assessed Plaintiff as being “markedly limited” (i.e., 10 having poor to no capacity) in: (1) “the ability to carry out detailed instructions,” (2) “the 11 ability to work in coordination with or proximity to others without being distracted by them,” 12 and (3) “the ability to interact appropriately with the general public.” (R. at 235-39.) Dr. 13 Lawrence assessed Plaintiff as being “moderately limited” in nine other work-related areas. 14 (Id.) According to the testifying vocational expert, the limitations described by Dr. 15 Lawrence, if accepted as true, would preclude the ability to sustain work on a regular and 16 continuing basis. (R. at 325-26.) 17 The ALJ rejected Dr. Lawrence’s opinion “because the undersigned finds that marked 18 limitations in functioning are not supported by the evidence as a whole.” (R. at 25-26.) As 19 with Dr. Levitt’s opinion, the ALJ did not lay out the conflicting medical evidence and made 20 no effort to explain why any such evidence was more persuasive than Dr. Lawrence’s 21 opinion. Thus, for the same reasons discussed in the context of Dr. Levitt’s testimony, the 22 ALJ’s rejection of Dr. Lawrence’s testimony was erroneous. See Lester, 81 F.3d at 830; 23 Embrey, 849 F.2d at 421-22.6 24 25 26 27 28 6 Defendant again argues that the ALJ relied on Plaintiff’s GAF scores, but, as explained above, the ALJ relied on those scores in the context of Plaintiff’s subjective complaint testimony, the ALJ mischaracterized those scores, and, in any event, the ALJ’s one sentence on those scores would not be sufficient to provide the requisite level of detail. See supra Part II.A.2. -8- 1 2 The Appeals Council, apparently recognizing this deficiency, supplemented the ALJ’s decision with the following rationale: Dr. Lawrence completed a medical source statement dated June 7, 2005, indicating that the claimant was moderately limited in many work related activities. However, it is unclear if Dr. Lawrence was treating the claimant during this time period. The medical source statement indicates that he first saw the claimant on September 13, 2003[,] and last saw him on November 19, 2004. Dr. Lawrence’s address is Rochester, New York, and the date that Dr. Lawrence reported that he last saw the claimant appears to coincide with the clamant’s move to Arizona. Therefore, the Administrative Law Judge’s finding that this opinion is accorded little weight is supported. 3 4 5 6 7 8 9 (R. at 9 (citation omitted).) 10 This additional rationale, however, is not supported by substantial evidence. The 11 Council states that the record is ambiguous as to whether Plaintiff was still being treated by 12 Dr. Lawrence at the time of the assessment or if Plaintiff had moved away and thus 13 discontinued treatment. (See id.) The record, however, contains a progress note and 14 treatment plan review authored by Dr. Lawrence on July 20, 2005, which is after the 15 assessment in question. (R. at 233.) Dr. Lawrence also authored a letter on the same date, 16 after the assessment at issue, in which he stated that “Mr. Deleo has been a patient under my 17 care since September 2002.” (R. at 231.) Thus, it is evident that Plaintiff was still in the 18 course of treatment when this assessment was completed. Because neither the ALJ nor the 19 Appeals Council has articulated a sufficient justification for discounting Dr. Lawrence’s 20 assessment on June 7, 2005, the Court finds reversible error.7 b. 21 22 July 20, 2005 Assessment On July 20, 2005, Dr. Lawrence authored a letter stating: In spite of [Plaintiff’s] continual aggressive treatment of his condition of Bipolar Mood Disorder Type 2 . . . with medication and psychotherapy, his ability to work has been significantly 23 24 25 26 27 28 7 Because the Appeals Council’s rationale is not supported by substantial evidence, the Court need not reach the parties’ arguments about whether the Council was required to develop the record or whether Dr. Lawrence’s opinion would still be entitled to deference even if treatment had previously ceased. -9- 1 2 impaired. His fluctuating and cyclical condition has rendered him unable to work reliably and consistently. I expect this disability to continue for at least 18-24 months. 3 (R. at 231.) The ALJ rejected that opinion because “the evidence as a whole shows that his 4 condition is stable on medication.” (R. at 26.) The ALJ also found Dr. Lawrence’s opinion 5 in this letter to be inconsistent with Plaintiff’s “active lifestyle.” (Id.) The Appeals Council 6 offered no additional rationale on this point. (See R. at 8-10.) 7 These statements fail to meet the standard for rejecting the opinion of a treating 8 physician. First, the ALJ offers no explication of his statement that “the evidence as a whole 9 shows that [Plaintiff’s] condition is stable on medication.” (R. at 26.) As explained above, 10 the ALJ can meet his burden for rejecting a treating physician’s opinion “by setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 12 interpretation thereof, and making findings.” Embrey, 849 F.2d at 421 (quotation omitted). 13 The ALJ made no effort to do so here. To the extent that the ALJ was relying on his later 14 statement that Plaintiff’s GAF scores “are all in the moderate or better range” (which, the 15 Court repeats, was made in the context of Plaintiff’s subjective complaint testimony), the 16 ALJ’s statement is not supported by substantial evidence because Plaintiff had a number of 17 GAF scores that would preclude sustained work. (See R. at 171, 201, 233, 276.) Thus, the 18 ALJ’s statement that Plaintiff “is stable on medication” is not sufficient for discounting the 19 opinion of a treating physician. 20 With respect to the ALJ’s statement about Plaintiff’s “active lifestyle,” the ALJ has 21 again failed to provide the requisite “detailed and thorough summary of the facts.” Embrey, 22 849 F.2d at 421. The closest approximation to such a factual summary is the ALJ’s statement 23 that Plaintiff “reported at ValueOptions that he liked to play pool, go bowling, watch 24 television, and surf the internet” (R. at 26). The Court finds that statement deficient for a 25 number of reasons. 26 First, the ALJ made the statement in the course of rejecting Plaintiff’s subjective 27 complaint testimony, not in rejecting Dr. Lawrence’s opinion. (See id.) Second, that one 28 sentence can hardly be described as either “detailed” or “thorough”; it is, in fact, one phrase - 10 - 1 pulled from a nine-page evaluation that elsewhere diagnosed Plaintiff with Psychotic 2 Disorder, Pervasive Developmental Disorder, and Bipolar Disorder. (R. at 267.) 3 Third, the ALJ took the statement out of context, which constitutes error. See Reddick 4 v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (holding that the ALJ erred because he 5 “developed his evidentiary basis by not fully accounting for the context of materials or all 6 parts of the testimony and reports,” including reports of the claimant’s regular activities). 7 The statement that Plaintiff “likes to play pool, go bowling, watch TV, and surf the internet” 8 is located in the report’s section on the “availability” of a support system. (R. at 266 9 (emphasis added).) The report’s sections on Plaintiff’s actual daily activities and actual 10 leisure activities contain no mention of these facts. (See R. at 265, 269.) Even if they did, 11 the fact that a claimant “likes to” play pool, go bowling, watch television, or use the internet 12 does not lead to the conclusion that the claimant does so with the frequency that the ALJ 13 assumed in characterizing Plaintiff as leading an “active lifestyle.” (See R. at 26.) Indeed, 14 elsewhere in the record Plaintiff reported that “he spends most of his time watching tv and 15 doing crossword puzzles. He does not like going out to the mall or other public places . . . 16 .” (R. at 224.) Thus, there is not substantial evidence to support the ALJ’s finding that 17 Plaintiff led an “active lifestyle.” 18 Finally, while a claimant’s regular activities may be considered in evaluating 19 symptoms, those activities must be somehow transferable to the work setting. See Smolen 20 v. Chater, 80 F.3d 1273, 1284 n.7 (9th Cir. 1996). “Disability does not mean that a claimant 21 must vegetate in a dark room excluded from all forms of human and social activity.” Cooper 22 v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (quotation omitted). The ALJ offers no 23 explanation as to how playing pool, going bowling, watching television, and surfing the 24 internet are relevant to whether Plaintiff’s mental ailments precluded sustained and regular 25 work – much less an explanation as to why those activities should displace the medical 26 opinion of a treating physician. 27 28 For all these reasons, the ALJ erred in rejecting Dr. Lawrence’s assessments, and that error was not cured by the Appeal Council’s supplemental rationale. - 11 - 1 C. 2 Plaintiff argues that the decision of the ALJ, as supplemented by the Appeals Council, 3 improperly rejects the opinion of Dr. Tromp, an examining physician. (Dkt. # 21 at 14-17.) 4 Rejection of Dr. Tromp’s Opinion 1. Legal Standard 5 An ALJ generally should give more weight to the opinion of an examining physician 6 than to opinions of nonexamining physicians. Andrews, 53 F.3d at 1041; 20 C.F.R. 7 § 416.927(d)(1). As with a treating physician, the ALJ may reject the opinion of an 8 examining physician, even if contradicted by a nonexamining physician, only by providing 9 specific, legitimate reasons that are supported by substantial evidence. Moore v. Comm’r of 10 11 Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). 2. Application 12 On July 13, 2005, Dr. Tromp conducted a mental status examination of Plaintiff. (R. 13 at 222-25). Dr. Tromp diagnosed Plaintiff as having “longstanding bipolar symptoms,” 14 manifesting as “most often depressed but does have occasional manic episodes.” (R. at 225.) 15 Dr. Tromp further concluded that Plaintiff “suffers from depressed mood, irritability, difficult 16 interpersonal relationships, occasional rage and impulse control problems.” (Id.) Although 17 Plaintiff’s cognitive performance was “adequate on the [mental status exam] conducted 18 during [the] examination,” Dr. Tromp explained that Plaintiff “suffers from very low 19 motivation at times, and has difficulty with organizing, planning and following through on 20 tasks.” (Id.) Dr. Tromp also observed that Plaintiff “is not likely to handle stress well for 21 the most part.” (Id.) 22 On July 27, 2005, Dr. Tromp filled out a work capacity assessment similar to the one 23 filled out by Dr. Lawrence on June 7, 2005. (R. at 226-30.) Dr. Tromp assessed Plaintiff as 24 being “markedly limited” in seven areas: (1) “ability to perform activities within a schedule, 25 maintain regular attendance, and be punctual,” (2) “ability to work in coordination with or 26 proximity to others without being distracted by them,” (3) “ability to interact appropriately 27 with the general public,” (4) “ability to accept instructions and respond appropriately to 28 criticism from supervisors,” (5) “ability to get along with coworkers or peers without - 12 - 1 distracting them or exhibiting behavioral extremes,” (6) “ability to set realistic goals or make 2 plans independently of others,” and (7) “ability to complete a normal workday/workweek 3 without interruptions from psychologically based symptoms and to perform at a consistent 4 pace without an unreasonable number/length of rest periods.” (See id.) Dr. Tromp also 5 assessed Plaintiff has being “moderately limited” in eight work-related areas.8 (See id.) 6 According to the testifying vocational expert, the limitations described by Dr. Tromp, 7 if accepted as true, would preclude the ability to sustain work on a regular and continuing 8 basis. (R. at 328-29.) In fact, the expert testified that if Plaintiff was “markedly limited” in 9 the “ability to complete a normal workday/workweek without interruptions from 10 psychologically based symptoms,” that limitation alone would preclude work. (R. at 329.) 11 The ALJ assigned Dr. Tromp’s opinion less weight than that of a nonexamining 12 physician on the following reasoning: The opinion of Dr. Tromp with regard to the claimant’s ability to do work-related mental activities is given less weight than the State agency medical consultant’s opinion because the undersigned finds that marked limitations in functioning are inconsistent with Dr. Tromp’s narrative report and with the evidence as a whole. 13 14 15 16 (R. at 25.) Once again, the ALJ did not explain what evidence in the record conflicted with 17 Dr. Tromp’s assessment. (See id.) The ALJ likewise did not explain what elements of Dr. 18 Tromp’s narrative report were inconsistent with the assessment. (See id.) As explained 19 above, the ALJ’s failure to lay out the evidence and to explain his interpretation of that 20 evidence in proper detail constitutes error. See Lester, 81 F.3d at 830; Embrey, 849 F.2d at 21 421-22. 22 The Appeals Council offered two additional rationales to buttress the ALJ’s reasoning. 23 (R. at 9.) The Council stated that the ALJ was justified in rejecting Dr. Tromp’s opinion 24 25 26 27 28 8 Dr. Tromp selected listed three capacities as being both “moderately limited” and “markedly limited,” followed by handwritten explanatory comments. (R. at 226-30.) - 13 - 1 because it “appears to be based on the claimant’s subjective complaints” and “is not well 2 supported by her treatment notes.”9 (Id.) 3 The Council’s first rationale is not sufficiently developed to survive this Court’s 4 review, for the Council does not explain what evidence in the record supports its conclusion 5 that Dr. Tromp based her opinion on Plaintiff’s subjective complaints. In any event, the 6 Council’s rationale is not supported by substantial evidence, for Dr. Tromp’s evaluation 7 explicitly provides that it is based on both a clinical interview with mental status exam and 8 a review of Plaintiff’s treatment records. (R. at 222.) Thus, it is evident that Dr. Tromp did 9 not merely rely on Plaintiff’s self-report of subjective complaints. 10 The Council’s second rationale (that Dr. Tromp’s opinion was not sufficiently 11 supported by her treatment notes) is also deficient, for several reasons. First of all, the 12 Council only credited Dr. Tromp as having indicated that Plaintiff was “moderately limited” 13 in five areas, when in fact she selected eight such areas, and only credited her as indicating 14 that Plaintiff was “markedly limited” in two areas, when in fact Dr. Tromp indicated seven 15 such areas. (See R. 226-30.) One of the areas of marked limitation that the Council ignored 16 was the “ability to complete a normal workday/workweek without interruptions from 17 psychologically based symptoms” (see R. at 9), and the vocational expert testified that such 18 a limitation by itself would preclude work (R. at 329). Thus, the Council’s factual predicates 19 are simply mistaken, and for that reason its reasoning is not based on substantial evidence. 20 Additionally, while the Council did lay out ostensibly conflicting facts in Dr. Tromp’s 21 evaluation – such as Plaintiff being “nicely dressed and well groomed,” “socially appropriate, 22 oriented, and [] comfortable in his surroundings,” and having normal “speech and motor 23 behavior” – the Council never explained how those facts actually undermined Dr. Tromp’s 24 25 26 27 28 9 Because Dr. Tromp was not a treating physician, there were no “treatment notes” that could either support or contradict her assessment. The Court assumes that by “treatment notes” the Appeals Council was referring to Dr. Tromp’s mental status examination, and will evaluate the parties’ arguments on that assumption. - 14 - 1 assessment. Thus, the Council did not interpret the facts as required. See Embrey, 849 F.2d 2 at 421-22. 3 Finally, even if the Court had a basis to conclude that the facts at issue did inform Dr. 4 Tromp’s diagnosis, and even if those facts were properly interpreted, the Council has 5 selectively relied on portions of the report that would tend to support its conclusion and 6 ignored those portions that would tend to contradict it. The Ninth Circuit has made clear that 7 an ALJ’s rejection of testimony is in error and not supported by substantial evidence if the 8 ALJ has “selectively focused on aspects of [medical records] which tend to suggest non- 9 disability[.]” Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001); see also Holohan 10 v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (holding that the ALJ erred by relying on 11 selective portions of treatment notes and failing to read a doctor’s statements in the “context 12 of the overall diagnostic picture he [drew]”); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th 13 Cir. 1984) (“[The doctor’s] report is uncontradicted and the Secretary’s attempt to use only 14 the portions favorable to her position, while ignoring other parts, is improper.”). 15 Here, the Appeals Council singled out portions of the report discussing Plaintiff’s 16 interpersonal presentation to Dr. Tromp, yet it completely ignored Dr. Tromp’s actual 17 “Conclusions” section, which provides that Plaintiff suffers from “longstanding bipolar 18 symptoms,” “depressed mood, irritability, difficult interpersonal relationships, occasional 19 rage and impulse control problems,” “very low motivation,” and “difficulty with organizing, 20 planning and following through on tasks,” and that Plaintiff “is not likely to handle stress 21 well for the most part.” (R. at 225.) Because the Appeals Council “selectively focused on 22 aspects of [medical records] which tend to suggest non-disability,” the Council’s reasoning 23 is not supported by substantial evidence. Edlund, 253 F.3d at 1159. 24 25 26 27 28 - 15 - 1 For all these reasons, the ALJ erred in affording less weight to Dr. Tromp’s opinion 2 than to the nonexamining physician’s opinion, and that error was not remedied by the 3 supplemental rationale of the Appeals Council.10 4 D. Reliance on Dr. Rothbaum’s Opinion 5 Plaintiff argues that the decision of the ALJ, as supplemented by the Appeals Council, 6 improperly relies on the opinion of Dr. Rothbaum, a non-examining physician. (Dkt. # 21 7 at 17-21.) 1. 8 Legal Standard 9 If a nontreating physician’s opinion contradicts the opinion of a treating physician, 10 but is not based on independent clinical findings or rests on clinical findings also considered 11 by the treating physician, then the ALJ may rely on the nontreating physician’s testimony to 12 reject the treating physician’s testimony only by providing specific, legitimate reasons that 13 are supported by substantial evidence. Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600 14 (9th Cir. 1999). “Substantial evidence” can be the opinions of nonexamining physicians 15 “when [those opinions] are supported by other evidence in the record and are consistent with 16 it.” Id. “The ALJ can meet this burden by setting out a detailed and thorough summary of 17 the facts and conflicting clinical evidence, stating his interpretation thereof, and making 18 findings.” Id. at 600-01 (quotation omitted). 19 20 21 10 22 23 24 25 26 27 28 Defendant argues that this Court should find no error because “Dr. Trompe [sic] judged Plaintiff to be markedly limited in his ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes . . . yet there is nothing either in Plaintiff’s past work history indicating such behavior, nor in her report.” (Dkt. # 24 at 10.) Dr. Tromp’s report, however, contains a number of statements supporting her conclusion in this regard. For instance, the report contains Plaintiff’s statements that had been transferred in one past job because of “the rage people felt from me,” and transferred at another past job because of “mood and behavioral problems,” specifically “the way [he] was interacting with coworkers.” (R. at 222, 224.) Plaintiff also reported that he “withdraw[s] from his coworkers” generally and “becomes fearful of others for no reason.” (R. at 222.) Thus, Defendant’s argument is incorrect. - 16 - 1 2. Application 2 On August 3, 2005, Dr. Rothbaum, a non-treating, nonexamining physician, 3 completed an evaluation of Plaintiff based on his review of the record. (R. at 204-221.) Dr. 4 Rothbaum concluded that Plaintiff suffered from affective disorders (R. at 204) that imposed 5 mild restrictions on his activities of daily living and moderate difficulties in maintaining 6 social functioning and maintaining concentration, persistence, and pace (R. at 214). 7 Specifically, Dr. Rothbaum found Plaintiff “moderately limited” in: (1) “the ability to 8 maintain attention and concentration for extended periods,” (2) “the ability to work in 9 coordination with or proximity to others without being distracted by them,” (3) “the ability 10 to interact appropriately with the general public,” (4) “the ability to get along with coworkers 11 or peers without distracting them or exhibiting behavioral extremes,” (5) “the ability to 12 respond appropriately to changes in the work setting,” and (6) “the ability to complete a 13 normal workday and workweek without interruptions from psychologically based symptoms 14 and to perform at a consistent pace without an unreasonable number and length of rest 15 periods.” (R. at 218-19.) Dr. Rothbaum did not assess Plaintiff as being “markedly limited” 16 on any work-related dimension. (See id.) 17 The ALJ found that “the opinion of the State agency medical consultant, dated August 18 3, 2005, with regard to the claimant’s mental residual functional capacity and the “B” 19 criteria, is given significant weight because the undersigned finds that it is consistent with 20 the evidence as a whole.” (R. at 25.) The ALJ offered no further exposition on this point 21 (see id.), and the Appeals Council did not discuss Dr. Rothbaum’s opinion other than to note 22 that “the Administrative Law Judge adopted the state agency opinion” (R. at 9). 23 Plaintiff mounts two main objections to the ALJ’s reliance on Dr. Rothbaum’s 24 testimony. First, Plaintiff challenges Dr. Rothbaum’s report as being “speculative and based 25 on mistaken beliefs.” (See Dkt. # 21 at 17-19.) Plaintiff argues that Dr. Rothbaum’s 26 statement that “it is not clear [Plaintiff] is taking meds” (R. at 216) is inconsistent with Dr. 27 Tromp’s report, on which Dr. Rothbaum relied, which states that Plaintiff “takes nafazadone, 28 wellbutrin, clonipin, and lithium” and “is compliant” with those medications (R. at 223). - 17 - 1 However, the fact that Plaintiff reported taking medications on July 13, 2005, is not 2 conclusive proof that he was still taking medications on August 3, 2005, nor does it establish 3 that he had been compliant at all times relevant to his disability claim. Thus, the Court 4 cannot say that Dr. Rothbaum’s statement that “it is not clear” that Plaintiff was taking 5 medications was “mistaken.” 6 Rothbaum’s opinion conflicted with a ValueOptions benefits assessment and gave too much 7 weight to Plaintiff’s past work history – are not properly before this Court. Resolving 8 conflicts in testimony, determining credibility, and resolving ambiguities in the evidence is 9 the exclusive province of the ALJ. See Andrews, 53 F.3d at 1039. Thus, the Court cannot 10 Plaintiff’s other arguments in this regard – that Dr. conclude that the ALJ erred simply in relying on the opinion of Dr. Rothbaum. 11 Plaintiff’s second argument, however – that Dr. Rothbaum’s opinion could not 12 constitute substantial evidence for rejecting the opinions of Dr. Levitt, Dr. Lawrence, and Dr. 13 Tromp – is correct. (Dkt. # 21 at 19-21.) First, as explained above, the ALJ failed to provide 14 sufficient explanation for why he was rejecting those doctors’ opinions. Indeed, the ALJ 15 never stated that he was rejecting those opinions based on Dr. Rothbaum’s report; the ALJ 16 only stated that he was affording the report “significant weight.” (R. at 25.) Even assuming 17 that the ALJ did intend to incorporate that weight into his rationale for rejecting the treating 18 and examining doctors’ opinions, the ALJ still failed to provide any explanation beyond 19 stating that Dr. Rothbaum’s report was “consistent with the evidence as a whole.” (R. at 25.) 20 Thus, the ALJ did not meet his burden of laying out “specific, legitimate reasons” by 21 providing “a detailed and thorough summary of the facts and conflicting clinical evidence, 22 stating his interpretation thereof, and making findings.” Morgan, 169 F.3d at 600-01. 23 Additionally, even if this explanation were sufficient, Dr. Rothbaum’s opinion is not 24 “supported by other evidence in the record.” See id. at 600. Defendant asserts that Dr. 25 Tromp’s report and Plaintiff’s GAF scores constitute such supportive evidence. (Dkt. # 24 26 at 12-13.) Defendant does not explain that argument beyond this mere assertion, and thus 27 it is waived. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) 28 (“[W]e review only issues which are argued specifically and distinctly[.]”). Moreover, - 18 - 1 neither the ALJ nor the Appeals Council advanced such an argument, and thus this Court 2 may not consider it. Pinto, 249 F.3d at 847-48 (holding that a district court may not affirm 3 the ALJ’s decision on a ground that the ALJ did not invoke in making his decision). 4 Regardless, the Court is unable to locate any material in Dr. Tromp’s report that would 5 establish Plaintiff as being only moderately impaired, as opposed to markedly impaired, see 6 supra Part II.C.2, and, in fact, Dr. Rothbaum’s assessment is in direct conflict with Dr. 7 Tromp’s assessment, which lists Plaintiff as being “markedly limited” in seven areas and 8 “moderately limited” in eight. (R. at 226-30.) As explained above, the ALJ’s conclusion that 9 Plaintiff’s GAF scores were all in the moderate or better range is not supported by substantial 10 evidence, for those scores fluctuated to as low as 45 several times throughout Plaintiff’s 11 treatment. See supra Part II.A.2. Thus, those scores do not support Dr. Rothbaum’s opinion. 12 While there may be other evidence in the record that supports Dr. Rothbaum’s opinion, 13 neither the ALJ nor Defendant has articulated such evidence, and thus the Court cannot find 14 that it exists. 15 In sum, although the Court cannot conclude that the ALJ erred in relying on Dr. 16 Rothbaum’s opinion, the ALJ’s failure to explain that opinion, and the fact that the opinion 17 was not sufficiently supported by other evidence, prevents the Court from finding that the 18 opinion constituted substantial evidence for rejecting the opinions of the treating and 19 examining doctors. 20 E. 21 Finally, Plaintiff argues that the decision of the ALJ, as supplemented by the Appeals 22 23 Rejection of Plaintiff’s Subjective Complaint Testimony Council, improperly rejects his subjective complaint testimony. (Dkt. # 21 at 21-25.) 1. Legal Standard 24 “Pain of sufficient severity caused by a medically diagnosed ‘anatomical, 25 physiological, or psychological abnormality’ may provide the basis for determining that a 26 claimant is disabled.” Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (quoting 27 42 U.S.C. § 423(d)(5)(A) (2006)). “Once a claimant produces objective medical evidence 28 of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints based - 19 - 1 solely on [the] lack of objective medical evidence to fully corroborate the alleged severity 2 of [those symptoms].” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). “[U]nless an 3 ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may 4 only find [the claimant] not credible by making specific findings as to credibility and stating 5 clear and convincing reasons for each.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th 6 Cir. 2006). Specifically: 7 10 The ALJ may consider at least the following factors when weighing the claimant’s credibility: [the] claimant’s reputation for truthfulness, inconsistencies either in [the] claimant’s testimony or between her testimony and her conduct, [the] claimant’s daily activities, her work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [the] claimant complains. 11 Thomas, 278 F.3d at 958-59 (internal quotations omitted). The ALJ’s findings must be 12 “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 13 [the] claimant’s testimony.” Id. at 958. 8 9 14 2. Application 15 Plaintiff reported that his mental problems cause depression, a loss of energy and 16 motivation, and a general inability to function that interferes with his capacity to sustain 17 regular work. (See R. at 307-10.) The ALJ concluded that “the claimant’s medically 18 determinable impairments could reasonably be expected to produce the alleged symptoms, 19 but [] the claimant’s statements concerning the intensity, persistence, and limiting effects of 20 these symptoms are not credible.” (R. at 26.) In so reasoning, the ALJ relied on five factors: 21 First, [Plaintiff] testified that he was able to travel by himself, visiting family and friends in New York for two weeks and in Florida for five weeks. Second, he reported at ValueOptions on October 3, 2006[,] that he did volunteer work at Triple R and sometimes went to an animal shelter to help out. He said he was a fast learner, dependable, and easy to get along with. Third, his [GAF] scores are all in the moderate or better range. His condition has improved since being in Arizona and appears to be stable. Fourth, his condition remains stable on medication. If compliant with taking his medications and doing lower stress work, he should be able to engage in substantial gainful activity. Fifth, he engaged in normal activities of daily living. He reported at ValueOptions that he liked to play pool, go bowling, watch television, and surf the internet. 22 23 24 25 26 27 28 - 20 - 1 (R. at 26.) The Appeals Council reiterated the same information in its supplemental decision. 2 (R. at 9-10.) 3 As explained above, the ALJ’s statement that Plaintiff’s GAF scores “are all in the 4 moderate or better range” is not supported by substantial evidence. As also outlined above, 5 the ALJ has not sufficiently explained how the fact that Plaintiff “liked to play pool, go 6 bowling, watch television, and surf the internet” informs his residual functional capacity, 7 which in this case is defined by Plaintiff’s mental limitations, not any physical limitations. 8 In the same way, the ALJ has not properly explained and supported his conclusion that 9 Plaintiff “was stable on medication” given the fluctuation in Plaintiff’s GAF scores and the 10 opinions of two treating physicians and one examining physician to the contrary. Thus, in 11 its current form, the ALJ’s findings are not “sufficiently specific to permit the court to 12 conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas, 278 F.3d 13 at 958. Thus, the ALJ erred in the manner in which it discounted Plaintiff’s subjective 14 complaint testimony.11 15 16 Because the ALJ committed legal error and made findings unsupported by substantial evidence, the Court sets aside the ALJ’s denial of benefits. See Thomas, 278 F.3d at 954. 17 18 19 20 21 22 23 24 25 26 27 28 11 The other two factors on which the ALJ relied – that Plaintiff “was able to travel by himself” and “did volunteer work” – are supported by substantial evidence in the record. (See R. at 314; R. at 269.) However, because the ALJ did not find that each factor was independently sufficient to reject Plaintiff’s subjective complaint testimony, the Court cannot conclude that the ALJ’s error was harmless. See Batson, 359 F.3d at 1197 (finding an ALJ’s error was harmless because the court determined that the error did not affect the ALJ’s ultimate conclusion). - 21 - 1 III. Remedy 2 Having decided to vacate the ALJ’s decision, the Court has the discretion to remand 3 the case either for further proceedings or for an award benefits. See Reddick, 157 F.3d at 4 728. The rule in this Circuit is that the Court should: 5 credit[] evidence and remand[] for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting [certain] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 6 7 8 9 Smolen, 80 F.3d at 1292. 10 Here, the Court is faced with a situation in which three physicians testified to 11 limitations that would prevent work, while a fourth testified to limitations that would not 12 prevent work. The ALJ found the former testimony inconsistent with the record as a whole, 13 but failed to properly explain his conclusions and also based part of his reasoning on factual 14 suppositions not supported by the record. The ALJ further suggested that the latter 15 testimony, on which the ALJ was entitled to rely, was sufficient to find nondisability, but 16 again the ALJ failed to properly explain his conclusions. Additionally, the ALJ did not 17 adequately explain his decision to reject Plaintiff’s subjective complaint testimony, and the 18 ALJ did not make a finding as to whether the two factors on which he permissibly relied 19 would be sufficient, in and of themselves, to justify rejecting Plaintiff’s subjective 20 complaints. 21 determination of disability can be made.” See id. 22 Thus, there remain “outstanding issues that must be resolved before a CONCLUSION 23 Because the ALJ’s decision, even as supplemented by the Appeals Council, includes 24 legal errors and conclusions not based on substantial evidence, the Court finds reversible 25 error. Because there remain outstanding issues that must be resolved before a disability 26 determination can be made, the Court remands this case back to the Administrative Law 27 Judge to explain his conclusions by setting out a detailed and thorough summary of the facts 28 and conflicting clinical evidence, stating his interpretation thereof, and making findings. - 22 - 1 2 3 4 5 6 7 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. # 16) is GRANTED. IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary Judgment (Dkt. # 22) is DENIED. IT IS FURTHER ORDERED that this case is REMANDED for further proceedings consistent with this order. DATED this 12th day of November, 2008. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 23 -