Ilene A. Zauss v. Carolyn W. Colvin, No. 2:2015cv08788 - Document 18 (C.D. Cal. 2016)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
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Ilene A. Zauss v. Carolyn W. Colvin Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ILENE A. ZAUSS, Plaintiff, 12 v. 13 14 15 Case No. CV 15-8788 SS CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, MEMORANDUM DECISION AND ORDER Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 Ilene A. Zauss (“Plaintiff”) seeks review of the decision of 22 23 the Commissioner 24 (“Commissioner” 25 Supplemental Security Income benefits. 26 pursuant 27 undersigned United States Magistrate Judge. For the reasons stated to 28 or of the “Agency”) U.S.C. § Social Security denying 636(c), to her Administration application for The parties consented, the jurisdiction of the 28 Dockets.Justia.com 1 below, the Commissioner’s decision is REVERSED and REMANDED for 2 further administrative proceedings consistent with this decision. 3 4 II. 5 PROCEDURAL HISTORY 6 7 On 8 Supplemental Security 9 (“AR”) 53). Plaintiff alleged that she became unable to work as June 25, 2012, Plaintiff Income filed (“SSI”). an application (Administrative for Record 10 of September 14, 2008, (AR 55, 40), due to various conditions 11 including bi-polar disorder, cervical cancer, fatty liver, high 12 blood pressure, high cholesterol, chronic sphenoid sinusitis, acid 13 reflux, asthma, and migraine headaches, (AR 136). 14 denied the application on January 25, 2013. The Agency (AR 71-72). 15 16 On March 18, 2013, Plaintiff requested a hearing, (AR 89), 17 which administrative law judge (“ALJ”) Dean Yanohira held on March 18 14, 2014. 19 that Plaintiff’s treating psychiatrist Dr. Fazal Mirza, M.D., at 20 Rio Hondo Mental Health Center, had not provided a medical source 21 statement or updated treatment records. (AR 51). The ALJ indicated 22 that he would keep the record open until April 14, 2014, to allow 23 Plaintiff’s counsel to submit the statement and records. 24 Plaintiff submitted updated treatment records from Dr. Mirza as 25 well as other records from Rio Hondo Medical Center but no medical 26 source statement. 27 decision denying benefits. 28 the ALJ’s decision before the Appeals Council, which the Council (AR 22). At the close of the hearing, the ALJ noted (AR 14). (AR 51). On May 8, 2014, the ALJ issued a (AR 9-21). 2 Plaintiff sought review of The ALJ’s determination then 1 denied on October 2, 2015. 2 became the final decision of the Commissioner. (AR 1). 3 filed the instant action on November 11, 2015. (Dkt. No. 1). (AR 1-4). Plaintiff 4 5 III. 6 FACTUAL BACKGROUND 7 8 9 Plaintiff was born on September 1, 1964. (AR 25, 54). On September 14, 2008, the alleged date of disability onset, she was 10 forty-four years old. 11 eleventh grade, but did not graduate from high school. 12 137). 13 her mother and brother. 14 the 15 appointment 16 payroll clerk, and telephonic surveyor. (AR 40, 55). Plaintiff completed the (AR 25, At the time of the hearing, Plaintiff lived in a house with alleged onset setter, of (AR 37). her In the sixteen years prior to disability, clerical employee, Plaintiff worked office as manager, an union (AR 137, 146, 158). 17 18 A. Mental Health History1 19 20 Plaintiff received mental health treatment in the early 1980s, 21 in 1992, in mid-2005, and from August 2011 through the date of the 22 hearing on March 14, 2014. (AR 28-29, 62). 23 On August 25, 2011, Plaintiff was seen at Telecare Corporation 24 25 Mental Health Urgent Care at Long Beach. (AR 198-213). 26 reported anxiety, symptoms of depression, Plaintiff helplessness, 27 28 The Court does not describe Plaintiff’s medical history, because it is not relevant to the claims at issue. 1 3 1 hopelessness, 2 paranoia, and being overwhelmed. (AR 205-06). 3 Plaintiff to Rio Hondo Mental Health Center for a psychiatric 4 evaluation. lack of self-worth, confusion, lack of focus, Staff referred (AR 209). 5 6 From October 2011 to January 2013, Plaintiff received 7 treatment from Dr. Mirza. 8 2011, Dr. Mirza diagnosed Plaintiff with bipolar disorder (most 9 recent episode mixed without psychotic features) and polysubstance 10 abuse (the latter in remission) and assigned Plaintiff a global 11 assessment of functioning (“GAF”) score of 48.2 12 Dr. Mirza prescribed Plaintiff Geodon and Benadryl. 13 353). 14 concentration was impaired, her motor activity was restless, her 15 speech was pressured, loud, and excessive, her affect was labile, 16 and her judgment and insight were “minimum.” 17 however, also noted that Plaintiff’s memory, cooperation, fund of 18 knowledge, and thought associations were average or unimpaired, 19 and that Plaintiff appeared to be capable of managing her own 20 funds. (AR 229). 21 through December 22 complained of mood swings, anxiety, depression, pressured speech, 23 insomnia, and easy irritability/frustration. (AR 230-38, 258, 314- 24 16, 25 (AR 228-29, 352-66). 27 28 (AR 258, 228). (AR 230-38, On September 19, 2012, Dr. Mirza noted that Plaintiff’s 353-55, (AR 229). Dr. Mirza, Dr. Mirza’s treatment notes from October 2011 2013 449-57). consistently Treatment indicate records that from Plaintiff 2013 assess A GAF score of 41-50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed.). 2 26 On October 19, 4 1 Plaintiff’s 2 judgment as “marginal.” 3 29, June 24, September 3, October 28, and December 17, 2013)). attention, concentration, memory, insight, and (AR 449-57 (records from January 3, April 4 5 In January 2014, Plaintiff began receiving psychiatric 6 treatment from Dr. Jun Yang, M.D., at Rio Hondo Mental Health 7 Center. 8 February 2014 indicate a change in Plaintiff’s medications to 9 Wellbutrin (AR 411). XL, Dr. Yang’s treatment records from January and Abilify, Topamax, and Restoril. (AR 447-48). 10 Records also identify Plaintiff’s target symptoms as mood swings 11 and irritability. 12 assessment of functioning score of 50. (AR 445). Dr. Yang assigned Plaintiff a global (AR 444). 13 14 B. State Agency Consultative Opinion 15 16 On January 22, 2013, the state agency medical consultant 17 Howard S. Leizer, Ph.D., reviewed, inter alia, Plaintiff’s mental 18 health records from Dr. Mirza and assessed Plaintiff’s mental 19 residual functional capacity. (AR 67-69). 20 Plaintiff’s ability to remember locations and work-like procedures 21 and 22 instructions as “not significantly limited” and her ability to 23 understand 24 limited.” 25 and persist in activities, the consultant assessed Plaintiff’s 26 ability 27 activities within a schedule, maintain regular attendance and be 28 punctual within customary tolerances, sustain an ordinary routine her ability and to remember (AR 67). to understand carry and detailed The consultant assessed remember short instructions as and simple “moderately Regarding her ability to sustain concentration out short and 5 simple instructions, perform 1 without 2 proximity to others without being distracted, and make simple work- 3 related decisions as “not significantly limited.” 4 further assessed her ability to carry out detailed instructions 5 and complete a normal workday/workweek without interruptions from 6 psychologically-based symptoms and perform at a consistent pace 7 without an unreasonable number and length of rest periods as 8 “moderately 9 Plaintiff’s ability to interact appropriately with the general 10 public as “moderately limited” and her ability to ask simple 11 questions or request assistance, accept instructions and respond 12 appropriately 13 coworkers 14 extremes, and maintain socially appropriate behavior and adhere to 15 basic standards of neatness and cleanliness as “not significantly 16 limited.” 17 to 18 “moderately limited” and her ability to be aware of normal hazards 19 and take appropriate precautions, travel in unfamiliar places or 20 use public transportation, and set realistic goals or make plans 21 independently of others as “not significantly limited.” special supervision, limited.” to (AR 68). respond (AR criticism without work in 68). from distracting coordination The or or (AR 68). consultant supervisors, them with get He assessed along exhibiting in with behavioral The consultant assessed Plaintiff’s ability appropriately to changes in the work setting as (AR 69). 22 23 The consultant relied upon the following to support these Plaintiff “plays with her dog,” “[s]he has no 24 conclusions: 25 problems with personal care besides dressing, shaving and other,” 26 “[s]he is able to fix meals, complete household duties, talk to 27 her mom, ride in a car, use public transportation, go out alone, 28 drive (but doesn’t have a car), shop in stores, and count change.” 6 1 (AR 65-66; accord AR 66-69). 2 Plaintiff’s 3 limitations were more restrictive than his findings. 4 consultant 5 functioning scores assigned by her treating psychiatrists “lack[ed] 6 specificity and may not be reflective of functioning over time.” 7 (AR 70). 8 [Plaintiff] is capable of simple, unskilled, nonstressful tasks 9 that do[] not require frequent interaction with others.” treating opined, The consultant acknowledged that psychiatrists’ however, that assessments the global of her mental (AR 69). The assessment of The consultant concluded that “the evidence suggests (AR 69). 10 11 C. Plaintiff’s Relevant Testimony 12 13 At the hearing on March 14, 2014, Plaintiff testified that 14 she is unable to work due to anxiety, depression, bipolar disease, 15 chronic dry eyes, and heel spurs. 16 testified that she “can’t sit still for a minute without these 17 anxiety attacks coming on. 18 you know, it kicks in.” 19 has been receiving mental health treatment at Rio Hondo Mental 20 Health Center, including counseling and psychiatric medication to 21 treat her anxiety and depression, once a month for a little over 22 two years. 23 approximately two months prior to the March 14, 2014 hearing, at 24 which time she began seeing Dr. Yang. 25 had been involuntarily hospitalized in a psychiatric ward in the 26 early 1980s. 27 Geodon, which she was taking prior to switching medications at the 28 beginning of 2014, “was working.” (AR 28-29). (AR 28). (AR 27-28, 32-33). Plaintiff I get depressed and then the bipolar, (AR 27). Plaintiff testified that she Plaintiff was treated by Dr. Mirza until (AR 29-30). Plaintiff also Plaintiff testified that the medication 7 (AR 31). 1 2 Plaintiff further testified that she lives in a house with 3 her mother and brother and is able physically and independently to 4 care for herself when she wants to do so. 5 stated that she is not able to stand for long and that she cannot 6 walk far because of pain caused by her heel spurs. (AR 38). 7 Plaintiff sometimes has to crawl to the bathroom. (AR 39). 8 Plaintiff testified that she does not do household chores because 9 she keeps to herself in her room, but admitted that she cleans her 10 own room as best as she can and that her room is “not really dirty.” 11 (AR 38). 12 has to do so. 13 have friends. (AR 39). 14 people, only close family at home, and she testified that she would 15 not be able to work with or around people because she does not 16 “even get along with the people [she lives] with.” (AR 37-38). Plaintiff Plaintiff does not very often leave the house unless she (AR 38). Plaintiff does not socialize and does not In addition, she does not often deal with (AR 39-40). 17 18 IV. 19 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 20 21 To qualify for disability benefits, a claimant must 22 demonstrate a medically determinable physical or mental impairment 23 that prevents her from engaging in substantial gainful activity 24 and that is expected to result in death or to last for a continuous 25 period of at least twelve months. 26 721 27 impairment must render the claimant incapable of performing the 28 work she previously performed and incapable of performing any other (9th Cir. 1998) (citing 42 8 Reddick v. Chater, 157 F.3d 715, U.S.C. § 423(d)(1)(A)). The 1 substantial gainful employment that exists in the national economy. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 3 U.S.C. § 423(d)(2)(A)). 4 5 To decide if a claimant is entitled to benefits, an ALJ 6 conducts a five-step inquiry. 7 steps are as follows: 20 C.F.R. §§ 404.1520, 416.920. 8 9 (1) Is the claimant presently engaged in substantial 10 gainful activity? 11 disabled. 12 (2) If so, the claimant is found not If not, proceed to step two. Is the claimant’s impairment severe? 13 claimant is found not disabled. 14 If not, the step three. 15 (3) If so, proceed to Does the claimant’s impairment meet or equal one of 16 the specific impairments described in 20 C.F.R. 17 Part 404, Subpart P, Appendix 1? 18 claimant is found disabled. 19 step four. 20 (4) 21 work? 22 If not, proceed to step five. 23 (5) If so, the If not, proceed to Is the claimant capable of performing his past If so, the claimant is found not disabled. Is the claimant able to do any other work? If not, 24 the claimant is found disabled. If so, the claimant 25 is found not disabled. 26 27 28 9 The 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 2 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. 3 §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 4 5 In between steps three and four, the ALJ must determine the 6 claimant’s residual 7 416.920(e). To determine the claimant’s RFC, the ALJ must consider 8 all of the claimant’s impairments, including impairments that are 9 not severe. functional capacity (“RFC”). 20 CFR 20 CFR § 416.1545(a)(2). 10 11 The claimant has the burden of proof at steps one through 12 four, and the Commissioner has the burden of proof at step five. 13 Bustamante, 262 F.3d at 953-54. 14 affirmative duty to assist the claimant in developing the record 15 at every step of the inquiry.” 16 claimant meets her burden of establishing an inability to perform 17 past work, the Commissioner must show that the claimant can perform 18 some 19 national economy, taking into account the claimant’s RFC, age, 20 education, and work experience. Tackett, 180 F.3d at 1098, 1100; 21 Reddick, 20 22 416.920(g)(1). 23 vocational 24 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 25 (commonly known as “the Grids”). 26 1157, 1162 (9th Cir. 2001). 27 (strength-related) and non-exertional limitations, the Grids are 28 inapplicable and the ALJ must take the testimony of a vocational other work 157 that F.3d exists at 721; “Additionally, the ALJ has an Id. at 954. in If, at step four, the “significant C.F.R. numbers” §§ in the 404.1520(g)(1), The Commissioner may do so by the testimony of a expert or by reference to the Medical-Vocational Osenbrock v. Apfel, 240 F.3d When a claimant has both exertional 10 1 expert. 2 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing 3 4 V. 5 THE ALJ’S DECISION 6 7 The ALJ employed the five-step sequential evaluation process 8 and concluded that Plaintiff was not disabled within the meaning 9 of the Social Security Act. (AR 16). At step one, the ALJ found 10 that Plaintiff had not engaged in substantial gainful employment 11 since her application for benefits date of June 25, 2012. 12 At step two, the ALJ found that Plaintiff had the severe impairments 13 of 14 recurrent corneal filaments in both eyes, right heel spur, and 15 obesity. 16 did not have an impairment or combination of impairments that met 17 or medically equaled one of the listed impairments in 20 C.F.R. 18 Part 404, Subpart Part P, Appendix 1 (20 C.F.R. §§ 416.920(d), 19 416.925-26). (AR 11). The ALJ found that Plaintiff had not alleged 20 that any of her impairments met or medically equaled the severity 21 of one of the listed impairments and that there was not any 22 objective medical evidence in the record indicating that any of 23 her severe impairments met or medically equaled any of the listed 24 impairments. bipolar disorder, (AR 11). right plantar fasciitis (AR 11). fibromatosis, At step three, the ALJ found that Plaintiff (AR 11). 25 26 The ALJ then found that Plaintiff had the RFC to perform 27 sedentary work as defined in 20 C.F.R. § 416.967(a) with the 28 following non-exertional limitations: 11 “Occasional climbing (but 1 no climbing ladders, ropes or scaffolds); occasional stooping, 2 kneeling, crouching and crawling; no exposure to hazards as defined 3 in 4 unskilled, simple and repetitive tasks; only incidental work- 5 related interactions with coworkers; and only brief and superficial 6 contact with the public.” 7 ALJ “accord[ed] great weight to the opinion of the State agency 8 medical consultant that Plaintiff was capable of light exertion 9 work with occasional postural activities and the need to avoid the Dictionary of Occupational (AR 12). Titles (DOT); limited to In making this finding, the 10 hazards 11 repetitive tasks with limited contact with coworkers, supervisors, 12 and the general public. (AR 14). 13 consultant with 14 program,” reviewed Plaintiff’s records through the report date, 15 and considered the Plaintiff’s complaints as well as the objective 16 findings. 17 new records after the hearing that the consultant had not reviewed, 18 but determined that the findings from these records did not justify 19 any changes to the consultant’s assessment. 20 characterized the records as indicating only that Plaintiff’s 21 medications and her mental symptoms were limited to irritability. 22 (AR 14). and that was she was “familiar (AR 14). capable of unskilled, simple and The ALJ reasoned that the the Social Security Disability The ALJ acknowledged that Plaintiff submitted (AR 14). The ALJ 23 24 Although the ALJ accorded great weight to the state 25 consultant’s opinion, the ALJ credited only “some of [Plaintiff’s] 26 subjective complaints and functional limitations to the extent that 27 they [were] consistent with the treatment records.” 28 According to the ALJ, Plaintiff’s “poor work history prior to the 12 (AR 14). 1 alleged onset date” did not enhance her credibility. 2 The ALJ questioned whether Plaintiff’s unemployment was “due to 3 medical impairments as opposed to a lifestyle choice.” 4 The ALJ noted that another blemish to her credibility was that 5 Plaintiff “began seeking treatment only after filing for disability 6 benefits, not as of her alleged onset date.” ((AR 14). (AR 14). (AR 14). 7 8 The ALJ further noted that while Dr. Mirza’s treatment records 9 indicate a diagnosis of bipolar disorder and polysubstance abuse 10 in remission, “[a]ll of Dr. Mirza’s notes[] indicate no side 11 effects with medication and the same prescriptions for Geodon and 12 Benadryl.” 13 dated September 19, 2012, Dr. Mirza indicated that Plaintiff’s 14 “functioning . . . included some impairment in concentration,” but 15 also that Plaintiff’s “memory, cooperation, fund of knowledge, and 16 thought associations were not significantly impacted by her mental 17 condition.” 18 recent treatment records that Plaintiff did submit from Dr. Mirza 19 indicated only a change to her medications, and “[t]he most recent 20 records from February 2014 seem to indicate that [Plaintiff’s] 21 mental symptoms at that time was [sic] irritability.” 22 The ALJ concluded that there was “no treating, examining, or 23 reviewing medical opinion that advocates for functional limitations 24 beyond those delineated in the residual functional capacity.” 25 15). (AR 14). The ALJ further indicated that in his letter (AR 14). The ALJ further indicated that the more (AR 14). (AR 26 27 28 At step four, the ALJ determined that Plaintiff had no past relevant work. (AR 15). At step five, considering Plaintiff’s 13 1 age, education, work experience, and RFC, the ALJ found that 2 Plaintiff could perform jobs that existed in significant numbers 3 in the national economy. 4 expert, 5 assembler, and polisher. 6 that Plaintiff was not under a disability as defined by 20 C.F.R. 7 §§ 404.1520(g) and 416.920(g). Plaintiff was (AR 15-16). able According to the vocational perform (AR 16). the requirements sorter, Therefore, the ALJ concluded (AR 16). 8 9 VI. 10 STANDARD OF REVIEW 11 12 Under 42 U.S.C. § 405(g), a district court may review the 13 Commissioner’s decision to deny benefits. The court may set aside 14 the Commissioner’s decision when the ALJ’s findings are based on 15 legal error or are not supported by substantial evidence in the 16 record as a whole. 17 Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 18 80 F.3d 1273, 1279 (9th Cir. 1996). Aukland v. Massanari, 257 F.3d 1033, 1035 (9th 19 20 “Substantial evidence is more than a scintilla, but less than 21 a preponderance.” 22 is “relevant evidence which a reasonable person might accept as 23 adequate to support a conclusion.” 24 determine whether substantial evidence supports a finding, the 25 court must “‘consider the record as a whole, weighing both evidence 26 that supports and evidence that detracts from the [Commissioner’s] 27 conclusion.’” 28 Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). Reddick, 157 F.3d at 720 (citation omitted). Aukland, 257 F.3d 14 (Id.) (citations omitted). at 1035 (quoting Penny It To v. If the evidence can 1 reasonably support either affirming or reversing that conclusion, 2 the 3 Commissioner. court may not substitute its judgment for that of the Reddick, 157 F.3d at 720-21 (citation omitted). 4 5 VII. 6 DISCUSSION 7 8 Plaintiff asserts that (1) the ALJ failed to seek a 9 consultative examination or consult a medical expert to determine 10 the severity of Plaintiff’s mental impairments and ALJ improperly 11 relied only on the state agency’s consultative opinion that was 12 based on a partial review of the records, (Plaintiff’s Mem. In 13 Supp. of Compl. (“Pl’s Mem.”) at 2, 3, 6); and (2) the ALJ did not 14 provide specific and legitimate reasons supported by substantial 15 evidence to reject the opinion and findings of Plaintiff’s treating 16 psychiatrist Dr. Mirza, (id. at 2-6). 17 below, the ALJ’s decision is REVERSED. For the reasons discussed 18 19 A. The ALJ Failed To Satisfy His Duty To Develop The Record 20 21 Plaintiff contends that the ALJ failed to seek a consultative 22 examination or consult a medical expert to determine the severity 23 of Plaintiff’s mental impairments and improperly relied only on 24 the State Agency doctor’s opinion that was based on an incomplete 25 review of Plaintiff’s mental health records. 26 6). 27 28 15 (Pl’s Mem. at 2, 3, 1 While a claimant has the burden of demonstrating a disability, 2 the ALJ has an affirmative duty fully and fairly to develop the 3 record in a social security case. 4 1144, 1150 (9th Cir. 2001); Reed v. Massanari, 270 F.3d 838, 841 5 (9th Cir. 2001); see also Sims v. Apfel, 530 U.S. 103, 110-11 6 (2000) (“Social Security proceedings are inquisitorial rather than 7 adversarial”; “[i]t is the ALJ’s duty to investigate the facts and 8 develop the arguments both for and against granting benefits.”). 9 The duty is heightened when the claimant is unrepresented or Tonapetyan v. Halter, 242 F.3d 10 mentally 11 Tonapetyan, 242 F.3d at 1150. 12 conduct 13 “subpoenaing the claimant’s physicians, submitting questions to 14 the claimant’s physicians, continuing the hearing, or keeping the 15 record open after the hearing to allow supplementation of the 16 record.” 17 consultative 18 record. 19 416.919). 20 only triggered by evidence that is insufficient or ambiguous. 21 Tonapetyan, 242 F.3d at 1150; see also Widmark v. Barnhart, 454 22 F.3d 1063, 1068-69 (9th Cir. 2006) (duty triggered by a gap in the 23 medical 24 consultative examination triggered where additional evidence is 25 needed or there is an ambiguity or insufficiency in the evidence). ill an and thus unable appropriate Id. (citation examination to protect own interests. An ALJ may discharge the duty to inquiry in omitted). to her several An supplement ALJ an ways, also including may inadequate order a medical Reed, 270 F.3d at 841 (citing 20 C.F.R. §§ 404.1519, The duty to conduct an appropriate inquiry, however, is evidence); Reed, 270 F.3d at 842 (duty to order a 26 27 28 Here, the ALJ did not fully satisfy his duty to conduct the appropriate inquiry. While the ALJ kept the record open for 30 16 1 days to allow Plaintiff the opportunity to supplement the record 2 with a medical source statement from Dr. Mirza, cf. Tonapetyan, 3 242 F.3d at 1150; Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 4 1998) 5 examination. (as amended), the ALJ failed to order a consultative 6 7 While the ALJ generally has “‘broad latitude in ordering a 8 consultative examination,’” Reed, 270 F.3d at 842 (quoting Diaz v. 9 Sec’y of Health & Human Servs., 898 F.2d 774, 778 (10th Cir. 1990)), 10 “[s]ome 11 examination,’” id. (quoting 20 C.F.R. §§ 404.1519a(b)(1), (4), 12 416.919a(b)(1), (4)). 13 are those in which “‘additional evidence needed is not contained 14 in the records of the claimant’s medical sources,’ and those 15 involving an ‘ambiguity or insufficiency in the evidence that must 16 be resolved.’” 17 416.919a(b)(1),(4)). 18 examination “turn[s] on an assessment of the quality of previously 19 rendered medical opinions.” 20 issue open to contest, and one that cannot be resolved by an ALJ 21 without analysis from other medical professionals.” kinds of cases[] do ‘normally require a consultative The cases requiring a consultative examiner Id. (quoting 20 C.F.R. §§ 404.1519a(b)(1),(4), The decision whether to order a consultative Reed, 270 F.3d at 844. This is “an Id. 22 23 The ALJ specifically recognized that there was a gap in the 24 mental health evidence because Plaintiff’s treating psychiatrist 25 Dr. Mirza had not submitted a medical source statement. 26 Therefore, 27 consultant, the record is devoid of any other function-by-function 28 comprehensive mental residual capacity analysis. other than the opinion 17 of the state (AR 14). non-examining Cf. Reed, 270 1 F.3d at 844 (noting that record was “barren” of “analysis from 2 other medical professionals” and thus devoid of the criterion upon 3 which the decision to appoint a consultative examiner “turned”); 4 id. at 843, n.2. 5 mental assessment of Plaintiff’s residual capacity on a review of 6 the record, which included a review of Dr. Mirza’s treatment 7 records from 2012 but not his treatment records from 2013 and not 8 on any medical source statement from Dr. Mirza. 9 order a consultative examination “turn[s] on an assessment of the The state examiner based his function-by-function The decision to 10 quality of previously rendered medical opinions.” 11 at 844. 12 other 13 limitations or their impact on Plaintiff’s ability to sustain 14 employment from which the ALJ could assess that quality. 15 Moreover, the ALJ did not identify any other evidence (substantial 16 or otherwise) to support his reliance upon the state consultant’s 17 functional assessment of Plaintiff’s mental limitations. Reed, 270 F.3d Here, however, there were no comprehensive analyses from medical professionals of plaintiff’s mental functional Cf. id. 18 19 Instead, the ALJ erroneously noted that Plaintiff began seeking 20 psychiatric help only after applying for disability benefits and 21 inaccurately 22 records from 2014 as indicating that her symptoms were limited to 23 irritability. (AR 15). 24 The establishes 25 treatment pursuant to an involuntarily psychiatric hospitalization 26 in the early 1980s and that she received mental health treatment 27 in 1992 and mid-2005. 28 treating psychiatrists Dr. Mirza and Dr. Yang also establish that evidence characterized Plaintiff’s mental health treatment These characterizations are not accurate. that Plaintiff (AR 28, 62). 18 received psychiatric The records of Plaintiff’s 1 Plaintiff had a serious mental health condition that included a 2 diagnosis of bi-polar disorder as well as mental limitations that 3 were significant. 4 2013 repeatedly assessing Plaintiff as having only “marginal” 5 attention, 6 Moreover, contrary to the ALJ’s finding that recent 2014 records 7 indicate only irritability as Plaintiff’s symptoms, Dr. Yang’s 8 records from early 2014 specifically note that Plaintiff’s target 9 symptoms are both mood swings and irritability. (See, e.g., AR 449-57 (treatment records from concentration, memory, insight, and judgment)). (AR 445). In 10 addition, Dr. Mirza’s treatment notes throughout 2013 consistently 11 indicate 12 depression, 13 irritability/frustration 14 Plaintiff 15 concentration, memory, insight, and judgment. 16 ALJ relied upon his erroneous characterization of Plaintiff’s most 17 recent 18 consultant’s opinion would not have been different had he reviewed 19 Plaintiff’s most recent mental health records from 2013 and 2014. 20 (AR 14). that as mental Plaintiff complained pressured having speech, and the health of his to swings, insomnia, of anxiety, and easy consistently notes limitations records mood assess “marginal” conclude attention, (AR 449-57). that the The state 21 22 On these facts, the ALJ did not have sufficient evidence to 23 discredit Mr. Mirza’s findings 24 consultant’s mental functional limitations. 25 had a duty to order a consultative examination. 26 at 842, 843 & n.2 (the ALJ failed to satisfy his duty to develop 27 the record when he failed to order a consultative examination 28 because the record before the ALJ did not contain any assessment 19 and instead credit the state The ALJ, therefore Cf. Reed, 270 F.3d 1 of the claimant’s limitations on a function-by-function basis); 2 see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 931 (9th Cir. 3 2014) (the ALJ’s duty to develop the record included ordering a 4 complete set of IQ scores for the claimant who had an intellectual 5 disability). 6 7 Moreover, the ALJ’s failure to order the necessary consultative 8 examination prejudiced Plaintiff. 9 881, 886 (9th Cir. 2011) (even if an ALJ fails to develop record, 10 a claimant must still show a substantial likelihood of prejudice 11 to merit remand). 12 quality 13 capacity, cf. Reed, 270 F.3d at 844, and he did not consider all 14 of the evidence fairly. 15 Dr. Mirza provided a medical source statement consistent with his 16 treatment notes, the ALJ “probably” would “go with” Dr. Mirza’s 17 opinion because he is Plaintiff’s treating source. 18 Because an examining consultative physician’s opinion is entitled 19 to greater weight than that of a non-examining state physician, 20 see infra § VII.B, there is a substantial likelihood that the ALJ 21 might 22 consultative examiner 23 consultant. The circumstances here, for these reasons, show a 24 substantial 25 consultative examiner prejudiced Plaintiff. 26 is required. of the similarly Cf. McLeod v. Astrue, 640 F.3d The ALJ did not have a basis for assessing the state have likelihood consultant’s mental residual functional In addition, the ALJ indicated that if credited over that that the 27 28 20 any of contrary the ALJ’s state failure (AR 51). opinion of a non-examining to appoint a Accordingly, remand 1 B. The ALJ Failed To Provide Specific And Legitimate Reasons 2 Supported 3 Physician’s Opinion By Substantial Evidence To Reject The Treating 4 5 Plaintiff claims that the ALJ did not provide specific and 6 legitimate reasons to reject the opinion of Dr. Mirza, Plaintiff’s 7 treating psychiatrist. (Pl’s Mem. at 2-6). The Court agrees. 8 9 There are three types of medical opinions in social security 10 cases: 11 treat, (2) examining physicians, who examine but do not treat, and 12 (3) 13 Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 14 2009). 15 they are “employed to cure and [have] a greater opportunity to know 16 and observe the patient as an individual.” 17 881 F.3d 747, 751 (9th Cir. 1989); Thomas v. Barnhart, 278 F. 3d 18 947, 956-57 (9th Cir. 2002); Connett v. Barnhart, 340 F.3d 871, 19 874 (9th Cir. 2003). 20 opinion is refuted by another doctor, the ALJ may not reject this 21 opinion without providing specific and legitimate reasons supported 22 by substantial evidence in the record. 23 821, 830-31 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 24 632 (9th Cir. 2007); Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 25 1198 (9th Cir. 2008); compare Lester, 81 F.3d at 830 (where the 26 treating physician’s opinion is not refuted by another doctor, the 27 ALJ must provide clear and convincing reasons for rejecting the 28 treating physician’s opinions); Holohan v. Massanari, 246 F.3d The opinions of (1) treating physicians, who examine and non-examining physicians who neither examine nor treat. Treating physicians are given the greatest weight because Magallanes v. Bowen, Accordingly, where the treating physicians’ 21 Lester v. Chater, 81 F.3d 1 1195, 1202 (9th Cir. 2001) (same). 2 non-treating physician does not constitute substantial evidence to 3 justify rejecting the opinion of either an examining or a treating 4 physician unless it is consistent with and supported by other 5 evidence in record. 6 Soc. Sec., 169 F.3d 595, 600-01 (9th Cir. 1998); Tonapetyan, 242 7 F.3d at 1149 (citing Magallanes, 881 F.2d at 752). 8 not accept the opinion of any physician, including a treating 9 physician, if that opinion is brief, conclusory, and inadequately The opinion of a non-examining, Lester, 81 F.3d at 831; Morgan v. Comm’r of An ALJ need 10 supported by the clinical findings. 11 also Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 12 2004); Tonapetyan, 242 F.3d at 1149. Thomas, 278 F,3d at 957; see 13 14 The ALJ in the present case failed to articulate specific and 15 legitimate reasons supported by substantial evidence for rejecting 16 Dr. Mirza’s more restrictive assessment of Plaintiff’s mental 17 capacity in the areas of attention, concentration, memory, insight, 18 and judgment as “marginal,” (AR 449-57), and crediting the state 19 consultant’s assessment of moderate or not significant limitations 20 in the areas of memory, understanding, and sustained concentration 21 and persistence, (AR 14, 67, 68). 22 providing specific and legitimate reasons supported by substantial 23 record 24 required to “set[] out a detailed and thorough summary of the facts 25 and conflicting clinical evidence, stating [his] interpretation 26 thereof, and making findings.” 27 omitted). 28 set forth his own interpretations and explain why they, rather than evidence to reject Dr. To satisfy his burden of Mirza’s findings, the ALJ was Orn, 495 F.3d at 632 (citations An “‘ALJ must do more than offer conclusions. 22 He must 1 the doctors’, are correct.’” 2 725). Id. (quoting Reddick, 157 F.3d at The ALJ did not comply with these standards. 3 4 The ALJ discounted Dr. Mirza’s findings in part because, while 5 Dr. Mirza’s “treatment notes indicate[d] diagnoses of bipolar 6 disorder 7 indicated 8 prescriptions for Geodon and Benadryl.” 9 the ALJ relied upon this reason to support a rejection of Dr. 10 Mirza’s findings regarding the severity of Plaintiff’s mental 11 limitations, the ALJ failed to explain why the absence of side 12 effects or the prescription medications themselves would support 13 his rejection of Dr. Mirza’s opinions. and “no polysubstance side abuse, effects in with remission,” medication the and (AR 14). records the same To the extent 14 15 The ALJ also discounted Dr. Mirza’s findings by placing too 16 much weight upon Dr. Mirza’s letter dated September 19, 2012, in 17 light of the total record. 18 letter Dr. Mirza noted that Plaintiff’s concentration was impaired, 19 he also “noted that [Plaintiff’s] memory, cooperation, fund of 20 knowledge, and thought associations were not significantly impacted 21 by her mental condition.” 22 Plaintiff’s memory and thought associations as “unimpaired” and 23 her 24 subsequent 25 Plaintiff 26 memory, insight, and judgment. 27 upon the September 2012 letter to the exclusion of more recent 28 evidence in the record did not constitute a specific and legitimate fund of knowledge treatment as having The ALJ reasoned that while in his (AR 14). as “average,” records only While the letter characterizes from “marginal” (AR 2013 Dr. consistently attention, (AR 449-57). 23 229), Mirza’s assess concentration, The ALJ’s reliance 1 reason supported by substantial record evidence to reject Dr. 2 Mirza’s findings from 2013. 3 1455-56 (9th Cir. 1984) (ALJ cannot attempt to justify a conclusion 4 by “ignoring competent evidence in the record that suggests an 5 opposite result”); Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 6 (9th Cir. 2008) (“‘[A] reviewing court must consider the entire 7 record as a whole and many not affirm simply by isolating a 8 “specific quantum of supporting evidence.”’”) (quoting Robbins v. 9 Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also 10 Cf. Gallant v. Heckler, 753 F.2d 1450, Reddick, 157 F.3d at 722-23. 11 12 The ALJ also characterized Dr. Mirza’s treatment records from 13 2013 as indicating only a change to her medications, and the 2014 14 records as revealing only the mental symptom of irritability. 15 14). 16 Plaintiff’s most recent records to support a rejection of Dr. 17 Mirza’s findings, the reason was not supported by substantial 18 record evidence. 19 identified Plaintiff’s target symptoms as both mood swings and 20 irritability. 21 from 2013 consistently indicate that Plaintiff complained of mood 22 swings, anxiety, depression, pressured speech, insomnia, and easy 23 irritability/frustration and repeatedly assess Plaintiff as having 24 the limitations of “marginal” attention, concentration, memory, 25 insight, and judgment. (AR To the extent the ALJ relied upon this characterization of As discussed, Dr. Yang’s records from early 2014 (AR 445). Moreover, Dr. Mirza’s treatment records (AR 449-57). 26 27 28 Finally, the ALJ could not rely on the state consultant’s less restrictive findings as a reason 24 to reject Dr. Mirza’s more The state consultant’s opinion could not 1 restrictive findings. 2 constitute substantial evidence to reject Dr. Mirza’s findings 3 unless it was consistent with and supported by other evidence in 4 record. 5 Tonapetyan, 242 F.3d at 1149. 6 that nor explained how the consultant’s opinion was consistent with 7 and supported by other record evidence in the record. 8 thus, failed to satisfy his burden of stating his interpretation 9 of 10 the Cf. Lester, 81 F.3d at 831; Morgan, 169 F.3d at 600-01; facts and The ALJ, however, neither determined clinical evidence interpretations were correct. and explaining The ALJ, why his Cf. Orn, 495 F.3d at 632. 11 12 The ALJ failed to support his rejection of Dr. Mirza’s more 13 restrictive findings regarding Plaintiff’s mental limitations with 14 specific and legitimate reasons supported by substantial evidence 15 in the record. 16 psychiatrist for over two years, were entitled to greater weight 17 than those of the non-examining state consultant. 18 not reject Dr. Mirza’s findings without providing specific and 19 legitimate reasons supported by substantial record evidence. 20 Lester, 81 F.3d at 830-31. 21 specific and legitimate reasons for rejecting Dr. Mirza’s findings 22 in favor of the state consultant’s or in favor of the ALJ’s own 23 conclusion that Plaintiff suffered from “moderate deficiencies in 24 concentration, persistence or pace resulting in failure to complete 25 tasks in a timely manner.” 26 was “no treating, examining, or reviewing medical opinion that 27 advocates for functional limitations beyond those delineated in 28 the residual functional capacity.” Dr. Mirza’s findings, as Plaintiff’s treating The ALJ could Cf. The ALJ, however, did not articulate (AR 15). 25 ALJ simply opined that there (AR 15). Remand is required. 1 C. Remand is Appropriate 2 Whether 3 to further 2000). 7 instructions to award benefits, three requirements must be met: 8 “‘(1) 13 14 15 the district an 6 12 within order discretion. 11 is or 5 10 benefits proceedings immediate court’s Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. Before the of for 4 9 award remand a court record has may remand been a fully case to developed the and ALJ with further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.’” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). those requirements are met, though, [the Court] “Even if retain[s] 16 ‘flexibility’ in determining the appropriate remedy.” Id. (quoting 17 Garrison, 759 F.3d at 1021). 18 remand on an open record for further proceedings ‘when the record 19 as a whole creates serious doubt as to whether the claimant is, in 20 fact, disabled within the meaning of the Social Security Act.’” 21 Id. (quoting Garrison, 759 F.3d at 1021). “In particular, [the Court] may 22 23 Where, as here, the record has not been fully developed and 24 the circumstances suggest that further administrative review could 25 remedy the Commissioner’s errors, remand for further proceedings 26 is the proper remedy. 27 28 26 1 VIII. 2 CONCLUSION 3 4 5 6 7 8 9 Accordingly, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. 10 11 12 DATED: August 26, 2016 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 NOTICE THIS MEMORANDUM DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 18 19 20 21 22 23 24 25 26 27 28 27
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