Eileen Marquez v. Carolyn W. Colvin, No. 2:2016cv03383 - Document 27 (C.D. Cal. 2017)
Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this action for further proceedings consistent with this Decision and Order, and it is further ORDERED that The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case without prejudice to a timely application for attorneys' fees and costs. (wr)
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Eileen Marquez v. Carolyn W. Colvin Doc. 27 O 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 2:16-CV-03383 (VEB) 7 8 EILEEN MARQUEZ, 10 11 12 DECISION AND ORDER Plaintiff, 9 vs. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. 13 14 15 16 17 18 I. INTRODUCTION In October of 2014, Plaintiff Eileen Marquez applied for Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the application.1 On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 20 1 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB Dockets.Justia.com 1 Plaintiff, by and through her attorney, Eliot Samulon, Esq. commenced this 2 action seeking judicial review of the Commissioner’s denial of benefits pursuant to 3 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 11, 12, 25, 26). On September 27, 2017, this case was referred to the 6 undersigned pursuant to General Order 05-07. (Docket No. 24). 7 II. BACKGROUND 8 9 Plaintiff applied for benefits on October 21, 2014, alleging disability 10 beginning January 1, 2006. (T at 163-64).2 The application was denied initially and 11 on reconsideration. Plaintiff requested a hearing before an Administrative Law 12 Judge (“ALJ”). 13 On August 17, 2015, a hearing was held before ALJ Paul Coulter. (T at 42). 14 Plaintiff appeared with her attorney and testified. (T at 54- 67). The ALJ also 15 received testimony from Dr. John Dusay, a medical expert (T at 45-54), and from a 16 vocational expert. (T at 67-69). 17 18 19 20 On November 12, 2015, the ALJ issued a written decision denying the application for benefits. (T at 16-31). The ALJ’s decision became the Citations to (“T”) refer to the administrative record at Docket No. 17. 2 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 Commissioner’s final decision on March 22, 2016, when the Appeals Council 2 denied Plaintiff’s request for review. (T at 1-6). 3 On May 17, 2016, Plaintiff, acting by and through her counsel, filed this 4 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 5 1). The Commissioner interposed an Answer on October 18, 2016. (Docket No. 16). 6 The parties filed a Joint Stipulation on April 17, 2017. (Docket No. 22). 7 After reviewing the pleadings, Joint Stipulation, and administrative record, 8 this Court finds that the Commissioner’s decision must be reversed and this case 9 remanded for further proceedings. III. DISCUSSION 10 11 A. Sequential Evaluation Process 12 The Social Security Act (“the Act”) defines disability as the “inability to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 17 claimant shall be determined to be under a disability only if any impairments are of 18 such severity that he or she is not only unable to do previous work but cannot, 19 considering his or her age, education and work experiences, engage in any other 20 3 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 2 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 3 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 6 one determines if the person is engaged in substantial gainful activities. If so, 7 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 8 decision maker proceeds to step two, which determines whether the claimant has a 9 medically severe impairment or combination of impairments. 20 C.F.R. §§ 10 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 11 If the claimant does not have a severe impairment or combination of 12 impairments, the disability claim is denied. If the impairment is severe, the 13 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 14 with a number of listed impairments acknowledged by the Commissioner to be so 15 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 17 equals one of the listed impairments, the claimant is conclusively presumed to be 18 disabled. If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment 20 4 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 prevents the claimant from performing work which was performed in the past. If the 2 claimant is able to perform previous work, he or she is deemed not disabled. 20 3 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 4 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 5 work, the fifth and final step in the process determines whether he or she is able to 6 perform other work in the national economy in view of his or her residual functional 7 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 9 The initial burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 11 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 12 is met once the claimant establishes that a mental or physical impairment prevents 13 the performance of previous work. The burden then shifts, at step five, to the 14 Commissioner to show that (1) plaintiff can perform other substantial gainful 15 activity and (2) a “significant number of jobs exist in the national economy” that the 16 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 17 B. Standard of Review 18 Congress has provided a limited scope of judicial review of a Commissioner’s 19 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 20 5 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 made through an ALJ, when the determination is not based on legal error and is 2 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 3 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 4 “The [Commissioner’s] determination that a plaintiff is not disabled will be 5 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 6 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 7 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 8 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 9 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 11 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 12 conclusions as the [Commissioner] may reasonably draw from the evidence” will 13 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 14 the Court considers the record as a whole, not just the evidence supporting the 15 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 16 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 17 It is the role of the Commissioner, not this Court, to resolve conflicts in 18 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 19 interpretation, the Court may not substitute its judgment for that of the 20 6 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 2 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 3 set aside if the proper legal standards were not applied in weighing the evidence and 4 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 5 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 6 administrative findings, or if there is conflicting evidence that will support a finding 7 of either disability or non-disability, the finding of the Commissioner is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 C. Commissioner’s Decision 10 The ALJ determined that Plaintiff had not engaged in substantial gainful 11 activity since October 21, 2014, the application date. (T at 21). The ALJ found that 12 Plaintiff’s depression, anxiety, history of alcohol abuse, and adjustment disorder 13 with depressed mood were “severe” impairments under the Act. (Tr. 21). 14 However, the ALJ concluded that Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled one of the impairments 16 set forth in the Listings. (T at 21). 17 The ALJ determined that Plaintiff retained the residual functional capacity 18 (“RFC”) to perform a full range of work at all exertional levels, except that she was 19 20 7 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 limited to occasional interaction with co-workers and supervisors and occasional 2 interaction with the general public. (T at 22). The ALJ determined that Plaintiff could not perform her past relevant work as 3 4 a dental assistant. (T at 26). Considering Plaintiff’s age (53 years old on the 5 application date), education (at least high school), work experience, and residual 6 functional capacity, the ALJ found that jobs exist in significant numbers in the 7 national economy that Plaintiff can perform. (T at 26). 8 Accordingly, the ALJ determined that Plaintiff was not disabled within the 9 meaning of the Social Security Act between October 21, 2014 (the application date) 10 and November 17, 2015 (the date of the decision) and was therefore not entitled to 11 benefits. (T at 27). As noted above, the ALJ’s decision became the Commissioner’s 12 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 13 1-6). 14 D. Disputed Issues 15 As set forth in the Joint Stipulation (Docket No. 22, at p. 3), Plaintiff offers 16 three (3) main arguments in support of her claim that the Commissioner’s decision 17 should be reversed. First, she argues that the ALJ’s consideration of the medical 18 evidence was flawed. Second, she challenges the ALJ’s credibility determination. 19 20 8 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 Third, Plaintiff asserts that the ALJ’s step five analysis was in error. This Court will 2 address each argument in turn. IV. ANALYSIS 3 4 A. Medical Evidence 5 An ALJ’s assessment of the claimant’s residual functional capacity (“RFC”) 6 will be upheld if the ALJ has applied the proper legal standard and substantial 7 evidence in the record supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 8 1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record 9 and “explain in [her] decision the weight given to . . . [the] opinions from treating 10 sources, nontreating sources, and other nonexamining sources.” 20 C.F.R. § 11 404.1527(e)(2)(ii); see also § 404.1545(a)(1). 12 1. ALJ’s Assessment 13 Plaintiff alleges disability based on depression, anxiety, and panic attacks. (T 14 at 22). The ALJ found that Plaintiff did have severe mental health impairments, but 15 determined that she retained the RFC to perform work with non-exertional 16 restrictions related to her interaction with co-workers, supervisors, and the general 17 public. (T at 22). 18 In reaching this conclusion, the ALJ afforded some weight to the assessment 19 of Dr. Larisa Levin, a consultative psychiatric examiner. (T at 25). In February of 20 9 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 2015, Dr. Levin examined Plaintiff and opined that she could understand, remember, 2 and carry out simple one-to-two step instructions; was not significantly impaired in 3 her ability to do detailed and complex instructions; was mildly impaired with regard 4 to relating and interacting with supervisors, co-workers, and the public; was not 5 significantly impaired as to maintaining attention, concentration, and pace; was not 6 significantly impaired with regard to day-to-day work activity, including attendance 7 and safety; was not significantly impaired in her ability to adapt to stresses common 8 to a normal work environment; was not significantly impaired in her ability to 9 maintain regular attendance in the workplace and perform work activities 10 consistently; and was not significantly impaired as to performing work activities 11 without special or additional supervision. (T at 284). 12 In general, Dr. Levin concluded that Plaintiff had “mild functional limitation” 13 from a psychiatric standpoint and characterized her prognosis as “fair.” (T at 284). 14 Dr. Levin assigned a Global Assessment of Functioning (“GAF”) score3 of 52 (T at 15 283), which is indicative of moderate symptoms or difficulty in social, occupational 16 or educational functioning. Metcalfe v. Astrue, No. EDCV 07-1039, 2008 US. Dist. 17 LEXIS 83095, at *9 (Cal. CD Sep’t 29, 2008). 18 “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 10 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 The ALJ assigned great weight to the opinion of Dr. John Dusey, a non- 2 examining medical expert who testified at the administrative hearing. (T at 25). Dr. 3 Dusey generally agreed with Dr. Levin’s assessment, but opined that Plaintiff would 4 have moderate limitation as to interactions with supervisors, co-workers, and the 5 public. (T at 45-50). This translated into a limitation to no more than occasional 6 social interaction. (T at 47-48). 7 8 9 This Court finds that ALJ’s assessment of Plaintiff’s mental health limitations was flawed and needs to be revisited on remand. 2. Dr. Dusey – Incomplete Record 10 There is no question that “the ALJ has a duty to assist in developing the 11 record.” Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 589 (9th 12 Cir. 1998); 20 C.F.R. §§ 404.1512(d)-(f); see also Sims v. Apfel, 530 U.S. 103, 110- 13 11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) (“Social Security proceedings are 14 inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and 15 develop the arguments both for and against granting benefits . . . .”). 16 In this case, Plaintiff was treated for depression and anxiety at Kaiser 17 Permanente for several years, starting in at least September of 2006 and continuing 18 through the time of the administrative hearing in August of 2015. (T at 1524, 2785). 19 However, due to a misunderstanding, the records produced by Kaiser Permanente 20 11 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 prior to the administrative hearing only included the records of Plaintiff’s treatment 2 for her physical impairments. The error was discovered and extensive records of 3 Plaintiff’s mental health treatment were produced, but they were not received until 4 after the hearing. (T at 46-47, 49, 70, 1512-2789). 5 The ALJ was aware of the missing records problem during the hearing. (T at 6 46-47, 49). Nevertheless, the hearing proceeded and the ALJ obtained testimony 7 from Dr. Dusay, as a psychiatric medical expert. Dr. Dusay explained that he “did 8 not see a consistent history” of psychiatric treatment in the records he had reviewed. 9 (T at 48). When the ALJ explained that there were psychiatric records that had not 10 been received, Dr. Dusay replied: “Those would be most helpful, I think.” (T at 49). 11 When asked about the weight that should be afforded to the consultative examiner’s 12 opinion, Dr. Dusay explained: “I don’t put as much weight on the consulting exam 13 as I do on the treating exams. And I think the Kaiser records may be very helpful, I 14 just don’t have them.” (T at 50). Later in the hearing, Dr. Dusay agreed that it 15 would be “best” to review the Kaiser mental health records and explained that he 16 thought those records “would be important.” (T at 52). 17 The ALJ received and reviewed the Kaiser mental health records after the 18 conclusion of the hearing. He decided not to provide the records to Dr. Dusay and 19 proceeded to render a decision denying benefits. The ALJ found that the new 20 12 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 evidence “does not impact [the] medical expert testimony.” (T at 24). This was 2 error. 3 “The ALJ is a layperson, not a doctor.” McKeithen v. Berryhill, No. EDCV 4 16-2224 SS, 2017 U.S. Dist. LEXIS 187355, at *15 (C.D. Cal. Nov. 13, 2017). The 5 ALJ decided to give “great weight” to Dr. Dusey’s opinion (T at 24), even though, 6 by the doctor’s own testimony, his opinion was based on an incomplete record that 7 lacked “important” documents. (T at 52). 8 Further, the ALJ’s reasoning for finding it unnecessary to give Dr. Dusey the 9 opportunity to review the extensive mental health record is flawed. For example, the 10 ALJ noted the records indicated that Plaintiff was inconsistent in keeping mental 11 health appointments and taking medications. (T at 24). However, the ALJ did not 12 adequately consider the fact that the inability to consistently attend to mental health 13 treatment might itself be evidence of the underlying impairments. Nguyen v. Chater, 14 100 F.3d 1462, 1465 (9th Cir.1996)(“[I]t is a questionable practice to chastise one 15 with a mental impairment for the exercise of poor judgment in seeking 16 rehabilitation.”)(quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th 17 Cir.1989)). 18 The ALJ also noted that the records documented a “wax and wane” of 19 symptoms, with periods of sustained improvement. (T at 24). However, the Ninth 20 13 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 Circuit has cautioned against relying too heavily on the “wax and wane” of 2 symptoms in the course of mental health treatment. See Garrison v. Colvin, 759 F.3d 3 995, 1017 (9th Cir. 2014). “Cycles of improvement and debilitating symptoms are a 4 common occurrence, and in such circumstances it is error for an ALJ to pick out a 5 few isolated instances of improvement over a period of months or years and to treat 6 them as a basis for concluding a claimant is capable of working.” Id.; see also 7 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who 8 suffers from severe panic attacks, anxiety, and depression makes some improvement 9 does not mean that the person's impairments no longer seriously affect her ability to 10 function in a workplace.”). 11 The ALJ must interpret evidence of improvement “with an awareness that 12 improved functioning while being treated and while limiting environmental stressors 13 does not always mean that a claimant can function effectively in a workplace.” Id. 14 In sum, the ALJ believed that the extensive mental health records provided 15 subsequent to the hearing did not “contradict” Dr. Dusay’s opinion that Plaintiff’s 16 mental health limitations were generally mild, with some moderate impairment in 17 social functioning. (T at 47). This represents the ALJ’s lay assessment of that 18 evidence, which on its face, contradicts Dr. Dusay’s testimony that reviewing those 19 records would be “important.” (T at 52). Further, as discussed above, several of the 20 14 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 reasons cited by the ALJ for reaching this conclusion (e.g. inconsistent treatment, 2 wax and wane of symptoms) were unavailing. 3 Lastly, the ALJ did not address several aspects of the mental health record that 4 certainly seem to contradict an assessment of mild to moderate impairment. For 5 example, treating psychiatrists and mental health therapists certified on several 6 occasions to the Los Angeles County Department of Mental Health and General 7 Relief that Plaintiff could not be gainfully employed. (T at 1834, 1925, 2011, 2347). 8 In March of 2012, Dr. Adelene James, a treating psychiatrist, assigned a GAF score 9 of 50 (T at 2141-42), which is indicative of serious impairment in social, 10 occupational or school functioning. Haly v. Astrue, No. EDCV 08-0672, 2009 U.S. 11 Dist. LEXIS 76881, at *12-13 (Cal. CD Aug. 27, 2009). Dr. Paul Riskin, another 12 treating psychiatrist, reported that he “encouraged” Plaintiff to “go to social security 13 and find out about disability.” (T at 2466). 14 It was error for the ALJ to rely on Dr. Dusey’s assessment without calling 15 upon him to revisit that assessment in light of the extensive mental health treatment 16 record, which the doctor himself deemed important. This must be addressed on 17 remand. 18 19 20 15 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 B. Credibility 2 A claimant’s subjective complaints concerning his or her limitations are an 3 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 4 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 5 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 6 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 7 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 8 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 9 findings are insufficient: rather the ALJ must identify what testimony is not credible 10 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 11 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 12 However, subjective symptomatology by itself cannot be the basis for a 13 finding of disability. A claimant must present medical evidence or findings that the 14 existence of an underlying condition could reasonably be expected to produce the 15 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 16 § 404.1529(b), 416.929; SSR 96-7p. 17 In this case, Plaintiff testified as follows: She was 54 years old at the time of 18 the administrative hearing. (T at 54). She is separated, with two grown children. (T 19 at 54). She lives in an apartment with her mother. (T at 54-55). She helps with 20 16 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 cleaning and laundry, but does not cook or go shopping. (T at 55). She takes 2 medication to help with sleep problems, anxiety, and depression. (T at 56). Her last 3 employment was in 2005. (T at 57). Panic attacks are a frequent occurrence and can 4 last an hour. (T at 58-60). She is depressed “all the time” and feels “sad and 5 stressed.” (T at 60). She likes to read and benefits from time with her emotional aid 6 dogs. (T at 61). Concentration can be difficult. (T at 63). She has a difficult 7 relationship with her mother. (T at 64). Her medications make her irritable and rude. 8 (T at 64-65). Financial problems make it difficult to pay for her medical treatment. 9 (T at 65). 10 The ALJ concluded that Plaintiff’s medically determinable impairments could 11 reasonably be expected to cause some of the alleged symptoms, but found that her 12 statements regarding the intensity, persistence, and limiting effects of the symptoms 13 were not fully credible. (T at 22). 14 The ALJ’s credibility determination must be revisited on remand. First, to the 15 extent the ALJ found Plaintiff’s subjective complaints contradicted by Dr. Dusey’s 16 assessment, that finding was flawed because the ALJ did not afford Dr. Dusey an 17 opportunity to review the entire record, as discussed further above. 18 Second, the ALJ appears to have discounted Plaintiff’s credibility because of 19 her difficulty in complying with mental health treatment, including keeping 20 17 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 appointments. However, the ALJ did not give sufficient consideration regarding the 2 extent to which this non-compliance was caused by Plaintiff’s mental health 3 problems and financial difficulties. This was error under SSR 96-7p. Under that 4 ruling, an ALJ must not draw an adverse inference from a claimant's failure to seek 5 or pursue treatment “without first considering any explanations that the individual 6 may provide, or other information in the case record, that may explain infrequent or 7 irregular medical visits or failure to seek medical treatment.” Id.; see also Dean v. 8 Astrue, No. CV-08-3042, 2009 U.S. Dist. LEXIS 62789, at *14-15 (E.D. Wash. July 9 22, 2009)(noting that “the SSR regulations direct the ALJ to question a claimant at 10 the administrative hearing to determine whether there are good reasons for not 11 pursuing medical treatment in a consistent manner”). 12 An ALJ’s duty to develop the record in this regard is significant because there 13 are valid reasons why a claimant might not follow a treatment recommendation. For 14 example, “financial concerns [might] prevent the claimant from seeking treatment 15 [or] . . . . the claimant [may] structure[] his daily activities so as to minimize 16 symptoms to a tolerable level or eliminate them entirely.” Id. 17 Third, as noted above, the ALJ relied on the “wax and wane” of symptoms as 18 a reason for discounting Plaintiff’s credibility without adequately accounting for the 19 fact that this is an expected (and, sadly, all too common) feature of mental illness. 20 18 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 Fourth, the ALJ relied on Plaintiff’s “rather wide-ranging daily activities” to 2 discount her credibility, without considering the extent to which those activities 3 would translate into the ability to perform work activities on a sustained basis. (T at 4 25). Although there was evidence that Plaintiff was periodically able to care for her 5 granddaughter and may have attended some college classes, there was also evidence 6 of significant, sustained difficulties with stress and interpersonal relationships. The 7 ALJ was thus obliged to give careful consideration regarding the extent to which 8 Plaintiff’s occasional ability to perform these activities was a function of her ability 9 to structure her situations, as opposed to evidence of ability to meet the demands of 10 work activity. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)(“The 11 critical differences between activities of daily living and activities in a full-time job 12 are that a person has more flexibility in scheduling the former than the latter, can get 13 help from other persons . . ., and is not held to a minimum standard of performance, 14 as she would be by an employer. The failure to recognize these differences is a 15 recurrent, and deplorable, feature of opinions by administrative law judges in social 16 security disability cases.”)(cited with approval in Garrison v. Colvin, 759 F.3d 995, 17 1016 (9th Cir. 2014)). 18 The credibility determination thus needs to be revisited on remand. 19 20 19 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 C. Step Five Analysis 2 At step five of the sequential evaluation, the burden is on the Commissioner to 3 show that (1) the claimant can perform other substantial gainful activity and (2) a 4 “significant number of jobs exist in the national economy” which the claimant can 5 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 6 return to his previous job, the Commissioner must identify specific jobs existing in 7 substantial numbers in the national economy that the claimant can perform. See 8 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). The Commissioner may 9 carry this burden by “eliciting the testimony of a vocational expert in response to a 10 hypothetical that sets out all the limitations and restrictions of the claimant.” 11 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). The ALJ's depiction of the 12 claimant's disability must be accurate, detailed, and supported by the medical record. 13 Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th 14 Cir.1987). “If the assumptions in the hypothetical are not supported by the record, 15 the opinion of the vocational expert that claimant has a residual working capacity 16 has no evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 17 Here, the ALJ’s step 5 analysis is based on the vocational expert’s response to 18 a hypothetical that incorporated the limitations set forth in the RFC determination. 19 (T at 67-68). The ALJ’s RFC determination must be revisited in light of the issues 20 20 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 outlined above related to Dr. Dusey’s opinion and the assessment of Plaintiff’s 2 credibility. Accordingly, the step five analysis will need to be reviewed on remand. 3 D. Remand 4 In a case where the ALJ's determination is not supported by substantial 5 evidence or is tainted by legal error, the court may remand the matter for additional 6 proceedings or an immediate award of benefits. Remand for additional proceedings 7 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 8 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 9 F.3d 587, 593 (9th Cir. 2004). 10 Here, this Court finds that remand for further proceedings is warranted. 11 Although the additional mental health records should certainly have been presented 12 to Dr. Dusey for review, and while Plaintiff’s credibility should have been more 13 carefully considered, this Court cannot say for certain that Plaintiff is disabled 14 within the meaning of the Social Security Act. There is no doubt her impairments 15 cause some material limitation in her ability to perform basic work activities, but the 16 extent of that limitation is best determined in the first instance by the Commissioner, 17 informed by medical expert assistance following a review of the full record. As 18 such, a remand for further proceedings is the right remedy here. 19 20 21 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB 1 2 V. ORDERS IT IS THEREFORE ORDERED that: 3 Judgment be entered REVERSING the Commissioner’s decision and 4 REMANDING this action for further proceedings consistent with this Decision and 5 Order, and it is further ORDERED that 6 The Clerk of the Court shall file this Decision and Order, serve copies upon 7 counsel for the parties, and CLOSE this case without prejudice to a timely 8 application for attorneys’ fees and costs. 9 10 11 DATED this 20th day of December 2017. /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 22 DECISION AND ORDER – MARQUEZ v BERRYHILL 2:16-CV03383-VEB
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