Linda Kelsch v. Carolyn W. Colvin, No. 2:2014cv00532 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Linda Kelsch v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LINDA KELSCH, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 14-532-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a Complaint on January 23, 2014, seeking review 26 of the Commissioner s denial of social security disability benefits. 27 The parties filed a consent to proceed before a United States 28 Magistrate Judge on August 8, 2014. Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on July 9, 2014. 2 Defendant filed a motion for summary judgment on August 8, 2014. The 3 Court has taken both motions under submission without oral argument. 4 See L.R. 7-15; Order, filed January 27, 2014. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability since July 24, 2009, based primarily on alleged mental problems (Administrative Record ( A.R. ) 83, 151, 10 154). An Administrative Law Judge ( ALJ ) examined the medical record 11 and heard testimony from Plaintiff and a vocational expert (A.R. 24- 12 35, 47-75). 13 disorder and panic disorder, but retains the residual functional 14 capacity to perform work at all exertion levels with certain 15 nonexertional limitations (A.R. 26-33).1 16 vocational expert s testimony, the ALJ found Plaintiff can perform 17 work as a packager and linen room attendant (A.R. 34-35; see also A.R. 18 66-67 (vocational expert testimony)). The ALJ found Plaintiff has severe major depressive In reliance on the The Appeals Council denied 19 20 21 22 23 24 25 26 27 28 1 The ALJ found Plaintiff can: perform simple, routine tasks with simple instructions; perform work involving simple decision-making; never remember or carry out detailed tasks or instructions; tolerate occasional changes in routine; work in a low stress environment defined as no fast paced-high volume type work;* with frequent interaction with supervisors, coworkers and the general public. (A.R. 28). *The Court observes that the semi-colon appears to have been placed in error. The vocational expert testified that a person with these limitations could not perform Plaintiff s past relevant work because that work required frequent contact with the general public. See A.R. 67. 2 1 review (A.R. 1-3). 2 3 STANDARD OF REVIEW 4 5 Under 42 U.S.C. section 405(g), this Court reviews the 6 Administration s decision to determine if: (1) the Administration s 7 findings are supported by substantial evidence; and (2) the 8 Administration used correct legal standards. 9 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 10 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 11 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 12 Substantial evidence is such relevant evidence as a reasonable mind 13 might accept as adequate to support a conclusion. 14 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 15 see also Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Richardson v. 16 17 DISCUSSION 18 19 I. Evidence Regarding Plaintiff s Alleged Mental Impairments. 20 21 The extensive evidence regarding Plaintiff s alleged mental 22 impairments is partially in conflict with certain findings made by the 23 ALJ. Therefore, the Court summarizes this evidence in some detail. 24 25 Plaintiff took a stress leave from her job on July 24, 2009 (the 26 alleged onset date) (A.R. 216-17). The first treatment note for 27 anxiety at work is dated April 9, 2009, with symptoms reportedly 28 longstanding (A.R. 240-41). Plaintiff s doctor diagnosed anxiety 3 1 disorder, prescribed Alprazolam (Xanax), and gave Plaintiff contact 2 information for psychiatry and health education because Plaintiff was 3 less inclined to take medication (A.R. 241).2 4 pressure was elevated due to stress (A.R. 241). Plaintiff s blood 5 6 Plaintiff returned to her doctor on April 23, 2009, claiming 7 increased anxiety due to work stress but she reportedly did not appear 8 anxious or depressed (A.R. 245). 9 medications or psychotherapy (A.R. 245). Plaintiff assertedly did not want Given Plaintiff s reluctance 10 to take medications, Plaintiff s doctor recommended acupuncture (A.R. 11 245). 12 13 Plaintiff next complained of work related stress on July 23, 2009 14 (A.R. 248). She reportedly appeared anxious, exhibited a depressed 15 mood and was diagnosed with an acute stress reaction (A.R. 248). 16 Plaintiff again assertedly did not want any medications (A.R. 248). 17 Plaintiff s primary doctor ordered Plaintiff off work until she could 18 be seen by a psychiatrist (A.R. 248). 19 20 A marriage and family therapist examined Plaintiff on July 30, 21 2009 (A.R. 249-52). Plaintiff complained that she could not control 22 herself at work, feels ill, cries, cannot concentrate or function, and 23 24 25 26 27 28 2 Plaintiff reportedly had been prescribed psychotropic medication in 1985, which she discontinued after one or two doses due to a horrible headache (A.R. 555). Plaintiff also was prescribed Ativan as needed in January of 1998 for stress and anxiety (A.R. 548). Plaintiff refused to take Xanax when it was recommended in April of 2009 (A.R. 250, 550). As of January 5, 2011, Plaintiff reportedly had never used any psychotropic medications except as noted herein (A.R. 555). 4 1 gets confused due to her workload (A.R. 250). Plaintiff had not taken 2 the Xanax she was prescribed in April, saying she had bad reactions to 3 medications in the past (A.R. 250). 4 depressed and her memory and concentration assertedly were poor (A.R. 5 251). 6 Anxiety, Occupational Issues, and assigned a Global Assessment of 7 Functioning ( GAF ) score of 55, which denotes moderate problems (A.R. 8 252).3 Plaintiff s mood reportedly was The therapist diagnosed Adjustment Disorder with Depression and 9 10 Psychologist Michelle Levin evaluated Plaintiff twice in 11 September of 2009 (A.R. 216-22). Dr. Levin believed that workplace 12 factors, namely Plaintiff s relationship with her manager and 13 increased workload, triggered Plaintiff s diagnosed condition (Major 14 Depressive Disorder, Single Episode, Severe without Psychotic 15 Features, and Generalized Anxiety Disorder) (A.R. 221). 16 recommended that Plaintiff attend individual psychotherapy, see a 17 psychiatrist to explain medication options, and be re-evaluated in six 18 months (A.R. 221). Dr. Levin 19 20 Psychologist April Pavlik prepared a follow up report dated 21 December 23, 2009 (A.R. 223-25). Dr. Pavlik found Plaintiff still 22 moderately depressed and indicated Plaintiff should continue 23 3 24 25 26 27 28 Clinicians use the GAF scale to rate psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. TR 2000) ( DSM ). A GAF of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. 5 1 individual therapy and remain off work until February 11, 2010 (A.R. 2 225).4 3 4 Psychologists Barry Halote and Allan Gerson reviewed the 5 available record and prepared a Permanent and Stationary Evaluation 6 Report dated July 12, 2010 (A.R. 282-305; see also A.R. 306-17 7 (initial report)). 8 February 16, 2010, and again on June 1, 2010 (A.R. 282-83; see also 9 A.R 398-427 (initial evaluation)).5 Drs. Halote and Gerson evaluated Plaintiff on They found Plaintiff incapable of 10 returning to her usual and customary job duties based on cumulative 11 stress from the workplace (A.R. 283, 296-300, 303-05). 12 Plaintiff had been treated individually by Dr. Swanson, and had stated 13 /// 14 /// 15 /// 16 /// 17 /// Reportedly, 18 19 20 21 22 23 4 Plaintiff reported that she met with Dr. Levin for weekly psychotherapy sessions from September 2009 through the time she started meeting with Dr. Pavlik (A.R. 544, 552). Plaintiff then met with Dr. Pavlik weekly until December 2009, when insurance stopped paying for the visits (A.R. 544). There are no treatment notes in the medical record for these therapy sessions. 5 24 25 26 27 28 Dr. Halote also prepared a summary of the medical record as of January 20, 2011 (A.R. 440-59). Plaintiff first complained of carpal tunnel syndrome on the left hand in June 2001 (A.R. 447). She first reported headaches and dizziness from work-related stress in April 2009 (A.R. 454). Based on his review of the medical evidence, Dr. Halote found no reason to change his opinion that Plaintiff was unable to return to her past work (A.R. 458 (deferring judgment on non-psychological issues)). 6 1 that overall she was feeling better (A.R. 284, 296-97).6 2 reported work-related anxiety and depression, as well as headaches, 3 nausea, dizziness, loss of balance and, while at work, muscle tension 4 and pain in her neck and shoulders, excessive sweating, weakness, 5 shortness of breath, rapid heartbeat and chest pain (A.R. 285, 287, 6 298, 300). Plaintiff 7 8 9 On examination, no memory or concentration problems reportedly were evident, nor signs of significant cognitive impairment observed 10 (A.R. 291). Psychological testing indicated, inter alia, that 11 Plaintiff was depressed (mild levels), withdrawn, fearful, and mildly 12 anxious (moderate, subjectively) (A.R. 292-95). 13 assertedly revealed the presence of depression, anxiety, loss of self- 14 confidence, social isolation, anger, and difficulties with 15 concentration (A.R. 295-96). Test results 16 17 Drs. Halote and Gerson diagnosed Plaintiff with Major Depressive 18 Disorder, Single Episode, Improved, and Panic Disorder without 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 6 At the time of their initial evaluation in February of 2010, Drs. Halote and Gerson said that prompt treatment was deemed necessary to mitigate Plaintiff s symptoms (A.R. 283). They had referred Plaintiff to Dr. Swanson for therapy in an individual setting and said Plaintiff had been treating with Dr. Swanson at the time of the second interview in June of 2010 (A.R. 283-84). 7 1 Agoraphobia, with a GAF score of 64 (A.R. 301).7 2 Plaintiff was unable to return to her former work, and also should be 3 restricted from working in high stress situations (A.R. 305). They concluded that 4 5 Treating psychologist Frank Swanson prepared a Psychological 6 Evaluation dated September 30, 2010 (A.R. 370-73). Dr. Swanson 7 indicated he first had examined Plaintiff on March 4, 2010, and most 8 recently had examined her on September 15, 2010 (A.R. 373; but see 9 A.R. 296 (referencing Treatment and Progress Notes from Dr. Swanson, 10 dated February 24, 2010" and dated April 21, 2010")).8 11 reportedly appeared to have fear, anxiety, distress, tearful behavior, 12 psychomotor agitation, and accelerated speech (A.R. 370). 13 reportedly had observed a depressed mood and anxiety during therapy 14 (A.R. 372). 15 [Plaintiff s] psychological functioning (A.R. 371). 16 thereby determined Plaintiff s helplessness, loss of motivation, 17 loss of energy, loss of interest, sadness, intense fear, sleep Plaintiff Dr. Swanson Several test instruments were used to ascertain Dr. Swanson 18 7 19 20 21 A GAF score of 61-70 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household) but generally functioning pretty well, has some meaningful interpersonal relationships. DSM, p. 34. 22 8 23 24 25 26 27 28 As of January 5, 2011, Plaintiff reported that she had met with Dr. Swanson for weekly therapy for approximately three months (i.e., from February through April 2010), then tapered off to seeing Dr. Swanson once every three to four weeks (A.R. 544). There are no treatment notes in the medical record for any of these therapy sessions. It is not clear when Plaintiff may have stopped consulting Dr. Swanson. As reflected in the above discussion, the existing record references at least four specific dates on which Plaintiff was seen by Dr. Swanson, but suggests that many more than four therapy sessions with Dr. Swanson actually occurred. 8 1 disturbance, and increased irritability (A.R. 371). Dr. Swanson 2 indicated that Plaintiff had diminished intellectual functioning, and 3 that sleep deprivation and chronic physical pain, as well as 4 ambivalence and loss of independence, self-value, and self-identity, 5 had contributed to cognitive dysfunction (i.e., decreased 6 concentration, attention, and memory) (A.R. 371-72). 7 social functions assertedly had improved with increased out-door 8 behavior, but her work functions remained tentative (A.R. 373). 9 Dr. Swanson diagnosed Plaintiff with Panic Anxiety Disorder Plaintiff s 10 (Provisional Agoraphobia), Major Depressive Disorder, and Primary 11 Insomnia (Provisional), assigning a present GAF score of 58 to 62, and 12 48 to 52 for the past year, with a guarded prognosis (A.R. 373). 13 Swanson concluded, [i]t is unlikely that [Plaintiff] will be able to 14 perform work activities at this time (A.R. 372). Dr. 15 16 On September 6, 2011, Dr. Swanson completed a form entitled 17 Medical Statement Concerning Depression and Anxiety, OCD, PTSD or 18 Panic Disorder for Social Security Disability Claim (A.R. 377-79). 19 Dr. Swanson identified essentially the same symptoms discussed in his 20 earlier evaluation, and indicated that Plaintiff would have moderate 21 restriction of activities of daily living and marked difficulty 22 maintaining social functioning (A.R. 377). 23 presence of deficiencies of concentration, persistence, or pace, and 24 repeated episodes of decompensation in work-like settings (A.R. 377). 25 Dr. Swanson further indicated that Plaintiff would have work-related 26 psychiatric limitations ranging from moderate to marked to 27 extremely impaired (A.R. 378-79). 28 was not significantly impaired was the ability to ask simple 9 He also indicated the The only ability that reportedly 1 questions or request assistance (A.R. 378-79). 2 Dr. Swanson left blank the Comments section of the form (A.R. 379). 3 4 Psychiatrist David Sones reviewed the medical record (absent Dr. 5 Swanson s September 6, 2011 evaluation) and prepared an Agreed Medical 6 Examination in Psychiatry report dated January 5, 2011, for 7 Plaintiff s workers compensation claim (A.R. 538-86; see also A.R. 8 588-655 (Dr. Sones interview notes)). 9 psychological stress level as 1 out of 10, with 10 being the level of Plaintiff reported her current 10 stress she experienced when she last worked (A.R. 545). Plaintiff 11 reported suffering from anxiety and depression approximately two times 12 per week for periods from five minutes to five hours when she worries 13 about work or her financial situation, interrupted sleep two to three 14 nights per week, but no disturbance in her social functioning (A.R. 15 557-59). 16 friends and was not socially withdrawn (A.R. 559). 17 examination noted no unusual findings other than an affect reflecting 18 apprehension and frustration, a predominantly dysphoric mood, with 19 periods in which Plaintiff became acutely anxious with trembling and 20 an increased respiration rate, and somewhat limited judgment and 21 insight (A.R. 562-64, 579). 22 tests and diagnosed Plaintiff with Adjustment Disorder with Mixed 23 Anxiety and Depressed Mood, Chronic, and assigned a GAF score in the 24 range of 51-60 (A.R. 564-76, 579-80, 584). 25 Plaintiff s psychiatric condition would not change within the next 26 twelve months (A.R. 582). 27 receive up to eight sessions per year of psychotherapy on an as-needed 28 basis (A.R. 583). Plaintiff reportedly enjoyed interacting with family and Mental status Dr. Sones gave Plaintiff a battery of Dr. Sones opined that Dr. Sones recommended that Plaintiff Dr. Sones opined that [f]rom a psychiatric 10 1 standpoint the applicant is capable of resuming her usual and 2 customary work duties as a commercial lines account manager for [her 3 employer] without the need for any modifications (A.R. 584). 4 5 Psychiatrist Allen Chroman prepared a Psychiatric Consultation 6 dated May 8, 2011 (A.R. 391-93). Plaintiff reportedly exhibited signs 7 of anxiety, euthymic mood, blunted affect, but a grossly intact 8 memory, fund of knowledge, and the ability to abstract spontaneously 9 and appropriately (A.R. 391-92). Plaintiff reported that at times she 10 has difficulty going outside her house (A.R. 391). Dr. Chroman 11 diagnosed Plaintiff with Panic Disorder and assigned a current GAF 12 score of 55 (A.R. 392). 13 93). 14 a restaurant and fled, secondary to panic (A.R. 396). 15 2011, Plaintiff reported only modest improvement with respect to her 16 panic attacks (A.R. 397). 17 (A.R 397). He prescribed Lexapro and Ativan (A.R. 392- Plaintiff reported that recently she was unable to have lunch in On July 12, Dr. Chroman prescribed a trial of BuSpar 18 19 Consultative psychological examiner Curtis Edwards reviewed a 20 portion of the medical records and prepared a Psychological Evaluation 21 dated November 17, 2011, and an accompanying Medical Source Statement 22 of Ability to do Work-Related Activities (Mental) (A.R. 380-89). 23 Plaintiff reportedly complained of panic, anxiety, fear, fear of 24 leaving the house, sleep difficulties, difficulty dealing with people, 25 confusion and disorientation (wherein she feels dizzy, has difficulty 26 breathing, a rapid heartbeat, and a feeling that she may die) that has 27 caused her to get lost when she leaves home, and to lose interest in 28 her life (A.R. 381). Plaintiff reported that her psychiatric symptoms 11 1 caused impairments in all areas of daily living, in that she could 2 complete activities but lacked motivation and energy to initiate tasks 3 (A.R. 381, 383). 4 friendships (A.R. 381). 5 psychotherapy for over two years with some benefit, but did not take 6 any prescribed medications (A.R. 382). She also reported social isolation with few Plaintiff claimed to have engaged in 7 8 9 Upon testing, Dr. Edwards opined that Plaintiff s attention and concentration were adequate for basic tasks that required less 10 sustained concentration, she had deficits in several memory functions, 11 difficulty identifying abstract problems, and clear discrepancies in 12 her cognitive functioning with deficits in auditory/verbal processing, 13 as well as working and delayed memory functioning (A.R. 383-85). 14 Edwards further opined that Plaintiff s performance on measures of 15 intellectual functioning was suppressed as a result of other factors, 16 such as pain and depressed mood (A.R. 384-85). 17 Plaintiff with Panic Disorder without Agoraphobia and Major Depressive 18 Disorder, Recurrent, Moderate (A.R. 386). 19 Plaintiff could function appropriately in most situations, but that 20 Plaintiff s condition likely would interfere with sustained activity 21 in more demanding situations (A.R. 385). 22 Plaintiff would have moderate limitation: (1) understanding, 23 remembering, and carrying out complex job instructions; 24 (2) maintaining attention, concentration, persistence, and pace; 25 (3) maintaining regular work attendance and performing work activities 26 on a consistent basis; (4) making judgments on complex work-related 27 decisions; and (5) responding appropriately to usual work situations 28 and to changes in a routine work setting (A.R. 386-88). 12 Dr. Dr. Edwards diagnosed Dr. Edwards believed that He ultimately opined that According to 1 Dr. Edwards, Plaintiff would have mild limitations relating to 2 supervisors, coworkers, and the public, and accepting instructions 3 from supervisors (A.R. 386, 388). 4 would have no limitation in performing work activities without special 5 or additional supervision for simple job instructions, and no 6 limitations understanding, remembering, and carrying out simple 7 instructions (A.R. 386-87). 8 Plaintiff s social functioning. Dr. Edwards opined that Plaintiff Dr. Edwards did not opine concerning 9 10 A CT study of Plaintiff s head from June 7, 2011 (which predated 11 Dr. Edwards evaluation but was not part of his record review), 12 suggested mild volume loss, nonspecific mild periventricular white 13 matter hypodensities which may represent chronic microvascular 14 ischemic process, and bilateral basal ganglia hypodensities where 15 [d]ifferential includes prominent perivascular space versus lacunes 16 (A.R. 375-76). 17 18 On February 8, 2012, Plaintiff presented with complaints of 19 confusion (A.R. 724-28). A MRI of Plaintiff s brain from March 10, 20 2012, showed nonspecific bilateral periventricular white matter signal 21 changes, mild volume loss, and bilateral paranasal sinus disease (A.R. 22 657). 23 cerebrovascular disease (i.e., a disease of the blood vessels that 24 supply the brain, usually caused by atherosclerosis which can lead to 25 stroke) (A.R. 667). 26 (available online at http://www.medterms.com/script/main/ 27 art.asp?articlekey=40116 (last visited Sept. 16, 2014). 28 2012 treatment note from Neurologist Yuri Bronstein assessed Plaintiff Plaintiff s doctors described her condition as entailing See Definition of Cerebrovascular Disease 13 A March 15, 1 with memory loss, but stated that her cognitive testing was within the 2 broad spectrum of normal (A.R. 695; see also A.R. 713-19 (treatment 3 note from February 22, 2012, stating that Plaintiff also complained of 4 vertigo and dizziness and ordering MRI study); A.R. 722 (March 8, 2012 5 normal EEG study)). 6 sclerosis and signs of inflammation or infection, and referred 7 Plaintiff to neurology for a second opinion (A.R. 695). Dr. Bronstein recommended testing for multiple 8 9 Dr. Roopa Bhat performed a neurological consultation on March 30, 10 2012 (A.R. 668-72). Plaintiff complained of confusion and difficulty 11 with recall, as well as vertigo since November 2011 (A.R. 668). 12 Regarding Plaintiff s reported memory and concentration difficulties, 13 Dr. Bhat believed that Plaintiff s mental status examination was 14 normal, but could not rule out contribution of insomnia and anxiety 15 disorder (A.R. 672). 16 (A.R. 672). 17 Plaintiff for multiple sclerosis (A.R. 672). Dr. Bhat suggested neuropsychological testing Dr. Bhat also recommended further testing to evaluate 18 19 20 II. The ALJ Erred in the Evaluation of the Treating Psychologist s Opinion. 21 22 Plaintiff argues, inter alia, that in determining her residual 23 functional capacity, the ALJ improperly rejected the opinions of 24 Plaintiff s treating psychologist, Dr. Swanson. 25 Motion, pp. 5-7. 26 (1) the ALJ s belief that Dr. Swanson s treatment history was quite 27 brief . . . that [Plaintiff] initiated treatment with Dr. Swanson in 28 March 2010 and was seen only two times ; (2) the ALJ s belief that Dr. See Plaintiff s The ALJ rejected Dr. Swanson s opinions based on: 14 1 Swanson s opinions were not formed until one year after Dr. Swanson 2 stopped treating Plaintiff; (3) the alleged inconsistency between Dr. 3 Swanson s opinions and Plaintiff s reported daily activities; and 4 (4) the asserted lack of objective support for Dr. Swanson s opinions 5 (A.R. 33). 6 7 A treating physician s conclusions must be given substantial 8 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 9 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 10 give sufficient weight to the subjective aspects of a doctor s 11 opinion. . . . 12 treating physician ) (citation omitted); see also Orn v. Astrue, 495 13 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to 14 treating physician opinions). 15 opinions are contradicted,9 as here, if the ALJ wishes to disregard 16 the opinion[s] of the treating physician he . . . must make findings 17 setting forth specific, legitimate reasons for doing so that are based 18 on substantial evidence in the record. 19 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 20 see Rodriguez v. Bowen, 876 F.2d at 762 ( The ALJ may disregard the 21 treating physician s opinion, but only by setting forth specific, 22 legitimate reasons for doing so, and this decision must itself be 23 based on substantial evidence ) (citation and quotations omitted). 24 /// This is especially true when the opinion is that of a Even where the treating physician s Winans v. Bowen, 853 F.2d 25 26 9 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 15 1 An ALJ may discount treating physician opinions that are not 2 adequately supported by clinical findings and objective medical 3 evidence. 4 2004); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003); Matney 5 v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 1992). 6 treatment history is a proper consideration. 7 331 F.3d 1030, 1038-39 (9th Cir. 2003) (duration of the treatment 8 relationship and the frequency and nature of the contact deemed 9 relevant in weighing medical opinion evidence); 20 C.F.R. ยง See Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. A limited See Benton v. Barnhart, 10 404.1527(c)(2) (factors to consider in weighing treating source 11 opinion include the nature and length of treatment relationship, the 12 frequency of examination, the supportability of the opinions by 13 medical signs and laboratory findings, and the opinion s consistency 14 with the record as a whole). 15 16 In the present case, the ALJ rejected Dr. Swanson s opinions 17 based in part on the ALJ s characterization of Plaintiff s treatment 18 history as quite brief and as having involved Plaintiff seeing Dr. 19 Swanson only two times (A.R. 33). 20 the record. 21 warrant remand. 22 1294, 1297 (9th Cir. 1999). 23 that Dr. Swanson saw Plaintiff on at least four different, specific 24 dates. 25 treatment by Dr. Swanson over a considerable period of time. 26 months, Plaintiff reportedly saw Dr. Swanson weekly, and thereafter 27 tapered off to approximately once every three to four weeks (A.R. 28 544). The ALJ thereby mischaracterized An ALJ s material mischaracterization of the record can See, e.g., Regennitter v. Commissioner, 166 F.3d As detailed above, the record reflects The record also contains other indications of significant For Drs. Halote and Gerson, whose observations also suggested that 16 1 Plaintiff had a more significant treatment history with Dr. Swanson 2 than the ALJ found to exist, evidently saw treatment notes from Dr. 3 Swanson that are not a part of the administrative record. 4 unclear why Dr. Swanson s treatment notes were not made a part of the 5 record. 6 requests the Administration often sends to treating providers in order 7 to obtain medical records. It is The record also seems to be devoid of the type of written 8 9 The ALJ has a special duty to fully and fairly develop the 10 record and to assure that the claimant s interests are considered. 11 This duty exists even when the claimant is represented by counsel. 12 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); accord Garcia v. 13 Commissioner, 2014 WL 4694798, at *4 (9th Cir. Sept. 23, 2014); see 14 also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ( Social Security 15 proceedings are inquisitorial rather than adversarial. 16 ALJ s duty to investigate the facts and develop the arguments both for 17 and against granting benefits. . . . ); Widmark v. Barnhart, 454 F.3d 18 1063, 1068 (9th Cir. 2006) (while it is a claimant s duty to provide 19 the evidence to be used in making a residual functional capacity 20 determination, the ALJ should not be a mere umpire during disability 21 proceedings ) (citations and internal quotations omitted); Smolen v. 22 Chater, 80 F.3d at 1288 ( If the ALJ thought he needed to know the 23 basis of Dr. Hoeflich s opinions in order to evaluate them, he had a 24 duty to conduct an appropriate inquiry, for example, by subpoenaing 25 the physicians or submitting further questions to them. 26 have continued the hearing to augment the record. ) (citations 27 omitted). 28 important in cases of mental impairments. It is the He could also An ALJ s duty to develop the record is especially 17 DeLorme v. Sullivan, 924 1 F.2d 841, 849 (9th Cir. 1991). 2 3 As mentioned above, in rejecting Dr. Swanson s opinions, the ALJ 4 relied in part on the supposedly limited treatment history (which the 5 ALJ mischaracterized) and an assumed lack of objective evidence 6 supporting Dr. Swanson s opinions. 7 without first attempting to develop the record fully regarding 8 Plaintiff s treatment history with Dr. Swanson and the bases for Dr. 9 Swanson s opinions. The ALJ should not have done so See, e.g., Montgomery v. Astrue, 2012 WL 4848731, 10 at *5 (C.D. Cal. Oct. 11, 2012) ( It is unjust to fail to fully 11 develop the record regarding these treatment notes and then rely on 12 the lack of supporting treatment notes to reject the opinions of the 13 treating sources. ). 14 15 The ALJ also relied in part on an asserted inconsistency between 16 Plaintiff s reported daily activities and Dr. Swanson s opinions that 17 Plaintiff would be moderately to markedly restricted in her daily 18 activities and social functioning. 19 inconsistency between a treating physician s opinion and a claimant s 20 admitted level of daily activities can furnish a specific, legitimate 21 reason for rejecting the treating physician s opinion. 22 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 23 only time Dr. Swanson opined regarding Plaintiff s specific work 24 related limitations was on September 6, 2011,10 following Plaintiff s 25 report of having experienced difficulties leaving her house beginning 26 in September of 2010. See A.R. 33. A material See, e.g., However, the See A.R. 373, 391, 396 (Plaintiff s reported 27 10 28 The record is uncertain regarding precisely when Dr. Swanson formed the opinions he expressed on September 6, 2011. 18 1 difficulties); see also A.R. 381 (Plaintiff s November 17, 2011 report 2 to Dr. Edwards of impairment in activities of daily living). 3 4 The function reports on which the ALJ apparently relied as 5 assertedly inconsistent with Dr. Swanson s opinions significantly 6 predate those opinions. 7 (more than a year before the expression of Dr. Swanson s opinions), 8 Plaintiff s husband reported that Plaintiff went outside daily, drove, 9 did the shopping, helped with cleaning, paid bills, played with and In a function report dated August 4, 2010 10 helped feed the pets and took them to the veterinarian, used the 11 internet, watched television, read, and had no problem with her 12 personal care (A.R. 173-74, 176-77). 13 prepared all the meals eaten at home (A.R. 175). 14 was able to go to lunch or dinner with friends from time to time 15 (A.R. 177). 16 Plaintiff s social activities since her condition began (A.R. 178). 17 He stated at that time that she got along fine with authority 18 figures (including bosses) (A.R. 179). Plaintiff s husband reportedly He said Plaintiff Plaintiff s husband then knew of no changes in 19 20 In a document dated August 1, 2010, Plaintiff herself similarly 21 reported that she was able to care for her personal needs, and that 22 she watched television, used a computer to read and do research and 23 played interactive games, fed, exercised and played with her animals, 24 ran errands, occasionally ate lunch with friends, visited friends in 25 person, via telephone and via computer daily, made phone calls, filled 26 out paperwork, did light cleaning and laundry, and a few household 27 repairs (A.R. 181-83, 185). 28 any problems getting along with others and got along very well with Plaintiff then indicated she did not have 19 1 authority figures (including bosses) (A.R. 186-87). 2 3 Plaintiff reported to the Agreed Medical Examiner on January 5, 4 2011, that her husband had taken responsibility for most household 5 chores (A.R. 547). 6 doing chores, but up to six hours per day using a computer and 7 watching television (A.R. 547). 8 attend to her activities of daily living and could drive without 9 assistance (A.R. 547). She then estimated spending only an hour per month Plaintiff then reportedly could In a face to face interview on January 19, 10 2011, Plaintiff was observed to have trouble talking and answering 11 questions and was described as very jittery and nervous and crying 12 (A.R. 190-91). 13 evidently did not report to an agreed medical examiner any 14 disturbance in her social functioning (A.R. 559). Yet, at approximately the same time, Plaintiff 15 16 Plaintiff s April 3, 2012 hearing testimony, if credible,11 17 suggested that a significant deterioration in Plaintiff s daily 18 activities and social functioning occurred in 2011 and 2012. 19 Plaintiff testified that she was not able to work because she could 20 not function or deal with people (i.e., people telling her what to do, 21 interacting with people, having deadlines and having to work with 22 people) (A.R. 55-56). 23 her husband does it all (A.R. 58). As to household activities, Plaintiff said that 24 25 26 Given the ALJ s failure to develop the record fully concerning the duration and nature of Dr. Swanson s treatment and the bases for 27 11 28 The Court recognizes that the ALJ deemed Plaintiff s testimony less than fully credible (A.R. 29). 20 1 Dr. Swanson s opinions, the Court is unable to conclude that the 2 inconsistencies between Plaintiff s earlier reported activities of 3 daily living and social functioning and Dr. Swanson s later opinions 4 furnish a legitimate reason for rejecting Dr. Swanson s opinions. 5 Significantly, many if not most mental impairments are progressive in 6 nature. 7 1989), cited with approval in Morgan v. Sullivan, 945 F.2d 1079, 1082- 8 83 (9th Cir. 1991). See Blankenship v. Bowen, 874 F.2d 1116, 1121-22 (6th Cir. 9 10 The Court is unable to deem the ALJ s errors to have been 11 harmless. See Garcia v. Commissioner, 2014 WL 4694798, at *6-7; 12 McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Tommassetti v. 13 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 14 circumstances of this case suggest that further administrative review 15 could remedy the ALJ s errors, remand is appropriate. 16 Astrue, 640 F.3d at 888; see generally INS v. Ventura, 537 U.S. 12, 16 17 (2002) (upon reversal of an administrative determination, the proper 18 course is remand for additional agency investigation or explanation, 19 except in rare circumstances).12 20 /// 21 /// Because the McLeod v. 22 23 24 25 26 27 28 12 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Dr. Swanson s opinions were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). For at least this reason, the Ninth Circuit s decision in Harman v. Apfel, 211 F.3d 1172 (9th Cir.), cert. denied, 531 U.S. 1038 (2000), does not compel a reversal for the immediate payment of benefits. 21 1 CONCLUSION 2 3 For all of the foregoing reasons,13 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 1, 2014. 10 11 ______________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. [E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled. See Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 22
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