Mallory Perry v. Nancy A. Berryhill, No. 2:2017cv05164 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. (See document for further details.) (sbou)
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Mallory Perry v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 MALLORY PERRY, 13 Plaintiff, 14 15 v. NANCY BERRYHILL, DEPUTY COMMISSIONER OF OPERATIONS, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. CV 17-5164-PLA MEMORANDUM OPINION AND ORDER 18 I. 19 PROCEEDINGS 20 Plaintiff filed this action on July 13, 2017, seeking review of the Commissioner’s1 denial of 21 his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 22 payments. The parties filed Consents to proceed before a Magistrate Judge on July 31, 2017, and 23 August 10, 2017. Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively 24 25 26 27 28 1 On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017, Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5 U.S.C. § 3346(a)(1)), which limits the time a position can be filled by an acting official. As of that date, therefore, she was not authorized to continue serving using the title of Acting Commissioner. As of November 17, 2017, Berryhill has been leading the agency from her position of record, Deputy Commissioner of Operations. Dockets.Justia.com 1 “JS”) on March 29, 2018, that addresses their positions concerning the disputed issues in the 2 case. The Court has taken the Joint Submission under submission without oral argument. 3 4 II. 5 BACKGROUND 6 Plaintiff was born on March 30, 1972. [Administrative Record (“AR”) at 50, 219, 225.] He 7 has past relevant work experience as a limo driver, physical therapy aide, and actor. [AR at 49, 8 104.] 9 On November 19, 2013, plaintiff filed an application for a period of disability and DIB, and 10 an application for SSI payments, alleging that he has been unable to work since August 1, 2011. 11 [AR at 219-24, 225-46.] After his applications were denied initially, plaintiff timely filed a request 12 for a hearing before an Administrative Law Judge (“ALJ”). [AR at 162-63.] A hearing was held 13 on December 3, 2015, at which time plaintiff appeared represented by an attorney, and testified 14 on his own behalf. [AR at 57-116.] A vocational expert (“VE”) also testified. [AR at 100-01, 104- 15 10.] On February 24, 2016, the ALJ issued a decision concluding that plaintiff was not under a 16 disability from August 1, 2011, the alleged onset date, through February 24, 2016, the date of the 17 decision. [AR at 26-51.] Plaintiff requested review of the ALJ’s decision by the Appeals Council. 18 [AR at 215-17.] When the Appeals Council denied plaintiff’s request for review on May 17, 2017 19 [AR at 1-6], the ALJ’s decision became the final decision of the Commissioner. See Sam v. 20 Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed. 21 22 III. 23 STANDARD OF REVIEW 24 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 25 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 26 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 27 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 28 2 1 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 2 is such relevant evidence as a reasonable mind might accept as adequate to support a 3 conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where 4 evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be 5 upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider 6 the entire record as a whole, weighing both the evidence that supports and the evidence that 7 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a specific 8 quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 9 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the 10 ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not 11 rely.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 12 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order 13 must be judged are those upon which the record discloses that its action was based.”). 14 15 IV. 16 THE EVALUATION OF DISABILITY 17 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 18 to engage in any substantial gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted or is expected to last for a continuous period of at 20 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 21 42 U.S.C. § 423(d)(1)(A)). 22 23 A. THE FIVE-STEP EVALUATION PROCESS 24 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 25 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 26 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 27 In the first step, the Commissioner must determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 3 1 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 2 second step requires the Commissioner to determine whether the claimant has a “severe” 3 impairment or combination of impairments significantly limiting his ability to do basic work 4 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 5 a “severe” impairment or combination of impairments, the third step requires the Commissioner 6 to determine whether the impairment or combination of impairments meets or equals an 7 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 8 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 9 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 10 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 11 “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the 12 claim is denied. Id. The claimant has the burden of proving that he is unable to perform past 13 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 14 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 15 the burden of establishing that the claimant is not disabled because there is other work existing 16 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 17 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 18 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 19 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 20 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 21 22 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 23 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 24 August 1, 2011, the alleged onset date.2 [AR at 28.] At step two, the ALJ concluded that plaintiff 25 has the severe impairments of healed left ankle fracture; obesity; substance addiction disorder; 26 27 2 28 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through March 31, 2013. [AR at 28.] 4 1 and organic mental disorder. [AR at 29.] The ALJ found the following impairments to be non- 2 severe: low back pain; hypertension; and left wrist “hernia.” [AR at 36-37.] At step three, the ALJ 3 determined that plaintiff does not have an impairment or a combination of impairments that meets 4 or medically equals any of the impairments in the Listing. [AR at 37.] The ALJ further found that 5 plaintiff retained the residual functional capacity (“RFC”)3 to perform light work as defined in 20 6 C.F.R. §§ 404.1567(b), 416.967(b),4 as follows: 7 [Plaintiff can] lift or carry, push or pull up to 10 lbs frequently and 20 lbs occasionally; he can stand, sit or walk up to 6 hours in an 8 hour workday; he is limited to simple, routine and repetitive tasks; and his contact with supervisors, coworkers and the public is limited to incidental, as to the work being performed. 8 9 10 [AR at 39.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded 11 that plaintiff is unable to perform any of his past relevant work as a limo driver, physical therapy 12 aide, and actor. [AR at 49-50, 106.] At step five, based on plaintiff’s RFC, vocational factors, and 13 the VE’s testimony, the ALJ found that there are jobs existing in significant numbers in the national 14 economy that plaintiff can perform, including work as a “table worker” (Dictionary of Occupational 15 Titles (“DOT”) No. 734.687-014), as a “shirt presser” (DOT No. 363.685-026), and as a 16 “housekeeping-cleaner” (DOT No. 323.687-014). [AR at 50-51.] Accordingly, the ALJ determined 17 that plaintiff was not disabled at any time from the alleged onset date of August 1, 2011, through 18 February 24, 2016, the date of the decision. [AR at 51.] 19 20 21 22 23 24 25 26 27 28 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 V. 2 THE ALJ’S DECISION 3 Plaintiff contends that the ALJ erred when he: (1) rejected the opinion of plaintiff’s treating 4 source, Elizabeth Grigor, M.D.; and (2) rejected the opinion of plaintiff’s examining source, 5 Edward Ritvo, M.D. [JS at 4-5, 14.] As set forth below, the Court agrees with plaintiff and 6 remands for further proceedings. 7 8 A. MEDICAL OPINIONS 9 “There are three types of medical opinions in social security cases: those from treating 10 physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. 11 Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527.5 The 12 Ninth Circuit has recently reaffirmed that “[t]he medical opinion of a claimant’s treating physician 13 is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and 14 laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the 15 claimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. 16 § 404.1527(c)(2)). Thus, “[a]s a general rule, more weight should be given to the opinion of a 17 treating source than to the opinion of doctors who do not treat the claimant.” Lester, 81 F.3d at 18 830; Garrison, 759 F.3d at 1012 (citing Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 19 (9th Cir. 2008)); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). “The opinion 20 of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining 21 physician.” Lester, 81 F.3d at 830; Ryan, 528 F.3d at 1198. 22 23 24 25 26 27 28 5 The Court notes that for all claims filed on or after March 27, 2017, the Rules in 20 C.F.R. § 404.1520c (not § 404.1527) shall apply. The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating source,” as well as what is customarily known as the treating source or treating physician rule. See 20 C.F.R. § 404.1520c; see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). However, the claim in the present case was filed before March 27, 2017, and the Court therefore analyzed plaintiff’s claim pursuant to the treating source rule set out herein. See also 20 C.F.R. § 404.1527 (the evaluation of opinion evidence for claims filed prior to March 27, 2017). 6 1 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical 2 opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d 3 at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific and 4 legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan, 528 5 F.3d at 1198). When a treating physician’s opinion is not controlling, the ALJ should weigh it 6 according to factors such as the nature, extent, and length of the physician-patient working 7 relationship, the frequency of examinations, whether the physician’s opinion is supported by and 8 consistent with the record, and the specialization of the physician. Id. at 676; see 20 C.F.R. § 9 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standard “by setting 10 out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 11 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 12 The ALJ “must set forth his own interpretations and explain why they, rather than the [treating or 13 examining] doctors’, are correct.” Id. 14 Although the opinion of a non-examining physician “cannot by itself constitute substantial 15 evidence that justifies the rejection of the opinion of either an examining physician or a treating 16 physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians, 17 psychologists, and other medical specialists who are also experts in Social Security disability 18 evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray v. 19 Astrue, 554 F.3d 1219, 1221, 1227 (9th Cir. 2009) (the ALJ properly relied “in large part on the 20 DDS physician’s assessment” in determining the claimant’s RFC and in rejecting the treating 21 doctor’s testimony regarding the claimant’s functional limitations). Reports of non-examining 22 medical experts “may serve as substantial evidence when they are supported by other evidence 23 in the record and are consistent with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 24 / 25 / 26 / 27 28 7 1 B. DR. GRIGOR 2 Plaintiff argues that the ALJ failed to give specific and legitimate reasons, supported by 3 substantial evidence, for giving “minimal weight” to the opinions of treating physician Dr. Grigor. 4 [JS at 4-9.] 5 Dr. Grigor, who treated plaintiff since June 7, 2012, completed two reports regarding 6 plaintiff’s mental health: a narrative report dated October 22, 2013 [AR at 409-13] and a Mental 7 Residual Functional Capacity Form (“MRFC Form”) dated November 5, 2015. [AR at 1342-46.] 8 9 1. 2013 Report 10 In her 2013 report, Dr. Grigor relies on a combination of self reports from plaintiff, her own 11 observations, and a mental status examination. [AR at 409-13.] Dr. Grigor reported that plaintiff 12 keeps his appointments but “requires reminders,” was dressed casually and “tries to appear 13 clean.” [AR at 409.] However, she also reported that plaintiff’s “mannerisms display anxiousness 14 and nervousness,” and that his attitude “can be fluctuating from blank and withdrawn to distraught 15 and upset.” 16 “depressed mood, sleep trouble, irritability, anxiety, poor concentration, low energy, flashbacks, 17 hearing voices, [and] paranoia.” [AR at 410.] Dr. Grigor stated that plaintiff “appears to have 18 average baseline mental capacities; however he frequently experiences functional impairments 19 in terms of diminished concentration.” [Id.] [AR at 409, 410.] Dr. Grigor reported that plaintiff’s chief complaints were: 20 Dr. Grigor diagnosed plaintiff with schizoaffective disorder; rule out (“R/O”) schizophrenia 21 and post-traumatic stress disorder; and polysubstance dependency in full remission. [AR at 413.] 22 She opined that plaintiff could “conduct simple tasks such as buying food or utilizing public 23 transportation,” however, these experiences “cause [plaintiff] significant anxiety.” [AR at 411.] 24 Dr. Grigor concluded that: 25 26 27 28 [Plaintiff] is unable to adapt to the requirements of even the most supportive and least stressful workplace. He experiences persistent anxiety, ruminations, mood swings, poor concentration, that makes him fearful of most social contact. If he were to attempt to work the most likely outcomes would include non-completion of tasks, inappropriate verbal outburst, unprofessional behavior, or simply absenteeism from the work place due to his mental illness. . . . His persistent mood, anxiety and paranoia seriously compromise his ability to interact effectively with supervisors, 8 1 fellow employees, or clients. Instead he would almost experience disabling anxiety, panic and not complete any assigned work tasks. 2 3 [AR at 412.] 4 The ALJ gave three reasons for giving Dr. Grigor’s 2013 opinion minimal weight: (1) “[t]he 5 assessment is nearly 3 years out of date”; (2) “[i]t relies on self-reports by [plaintiff] which have 6 been determined to be less than entirely credible”; and (3) “the assessed limitations also are not 7 consistent with [plaintiff’s] own admissions regarding his daily functioning.” [AR at 47.] 8 9 a. Out-of-Date Opinion 10 The ALJ’s reason for rejecting Dr. Grigor’s opinion because it was “3 years out of date,” is 11 not specific and legitimate. First, if Dr. Grigor’s October 2013 opinion is outdated then the ALJ 12 should have also considered the March 2014 opinion of the non-examining State agency 13 physician, Absie Kelly, Ph.D., who reviewed, among other things, Dr. Grigor’s 2013 opinion, to be 14 almost equally outdated, rather than giving it “great weight.” [AR at 49, 123-37.] Second, Dr. 15 Grigor treated plaintiff for over two years after the onset of his alleged disability, and reaffirmed 16 her opinion that he is unable to work in the November 2015 MRFC Form. Thus, being out of date 17 was not a specific and legitimate reason supported by substantial evidence for discounting Dr. 18 Grigor’s 2013 opinion. 19 20 b. Self Reports 21 The ALJ also determined that Dr. Grigor’s opinion should be given minimal weight because 22 it relied on plaintiff’s self reports and the ALJ determined that plaintiff was “less than entirely 23 credible.” [AR at 47.] “An ALJ may reject a treating physician’s opinion if it is based to a large 24 extent on a claimant’s self-reports that have been properly discounted.” Tommasetti v. Astrue, 25 533 F.3d 1035, 1041 (9th Cir. 2008) (internal quotation marks and citation omitted). However, “the 26 rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner 27 to opinions regarding mental illness.” Buck v. Berryhill, 869 F. 3d 1040, 1049 (9th Cir. 2017). “An 28 ALJ cannot discredit a physician’s opinion for relying on plaintiff’s self-reports when the physician 9 1 [herself] did not discredit plaintiff’s reports and makes [her] own observations.” Constantino v. 2 Berryhill, 2017 WL 5713313, at *6 (W.D. Wash. Nov. 28, 2017) (citing Ryan, 528 F.3d at 1199- 3 2000, Buck, 869 F. 3d at 1049 (noting that “psychiatric evaluations necessarily rely on self reports, 4 given ‘the nature of psychiatry’”)). 5 Dr. Grigor did not discredit plaintiff’s self reports in her notes or opinions. Moreover, her 6 opinion was based on her own objective observations and clinical findings about plaintiff’s mental 7 state. [AR at 409-10, 524-26, 534, 544.] Therefore, this was not a specific and legitimate reason 8 supported by substantial evidence for giving Dr. Grigor’s opinion minimal weight. 9 10 c. Inconsistent Daily Activities 11 An ALJ may reject a medical opinion regarding a claimant’s mental health because the 12 claimant’s activities of daily life contradict it, but only if substantial evidence supports that 13 conclusion. 14 inconsistency between doctor’s opinion and claimant’s “maintaining a household and raising two 15 young children, with no significant assistance from her ex husband” supported discounting the 16 doctor’s opinion). The record must provide details about the nature, extent, and frequency of the 17 activities for them to “constitute ‘substantial evidence’ inconsistent with [a treating physician’s] 18 informed opinion.” Trevizo, 871 F.3d at 666. If a “holistic review of the record does not reveal an 19 inconsistency between the treating providers’ opinions and [the claimant’s] daily activities,” then 20 an inconsistency between a treating physician’s opinion and a claimant’s daily activities may not 21 be a specific and legitimate reason to discount a treating physician’s opinion. Ghanim v. Colvin, 22 763 F.3d 1154, 1162 (9th Cir. 2014). See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (finding that 23 Here, the ALJ determined that Dr. Grigor’s “assessed limitations . . . are not consistent with 24 [plaintiff’s] own admissions regarding his daily functioning.” [AR at 47.] In support, the ALJ cited 25 to plaintiff’s reported daily activities, including eating breakfast, taking medication, preparing simple 26 meals such as cereal, eggs, and frozen/microwave meals, and taking public transportation. [AR 27 at 40.] The ALJ also cited to plaintiff’s social interactions, noting that he would sometimes visit his 28 mother or girlfriend, and that he was able to “interact with peers and others at multiple medical, 10 1 sobriety, case management and other meetings on a weekly (or even daily) basis, and engage 2 in other social activity.” [AR at 38, 40.] The ALJ, however, failed to explain how these limited 3 activities are inconsistent with Dr. Grigor’s opinion. 4 For instance, while plaintiff noted that he saw his girlfriend and mother occasionally, the 5 nature of these relationships shows that plaintiff has not demonstrated the ability to maintain 6 healthy relationships, and certainly not to the degree that these relationships could serve as 7 evidence supporting an ability to relate to others in a work setting. His divorce from his wife in 8 2007 contributed to his depression, homelessness, and drug and alcohol abuse. [AR at 29, 30, 9 35, 36, 432, 1357.] Moreover, his relationship with his girlfriend appeared to involve physical 10 abuse, and it is reported that she now has a restraining order against him. [AR at 887, 1354.] 11 Plaintiff’s attendance at AA meetings and other group therapy is not inconsistent with Dr. Grigor’s 12 opinion that “[h]is persistent mood, anxiety and paranoia seriously compromise his ability to 13 interact with supervisors, fellow employees, or clients.” 14 therapeutic goals of one of his groups is to help plaintiff “build appropriate social skills” and 15 develop healthy coping and life skills. [AR at 461.] Moreover, while plaintiff did report some 16 improvements from these therapies [AR at 458, 459, 460, 461], he also reported “feeling anxious 17 and afraid of social situations . . . and [that he found] it difficult to express [himself] through Art [sic] 18 in this art group.” [AR at 458]; see also Garrison, 759 F.3d at 1017 (citing Hutsell v. Massanari, 19 259 F.3d 707, 712 (8th Cir. 2001) (stating that “doing well for the purposes of a treatment program 20 has no necessary relation to a [plaintiff’s] ability to work or to [his] work-related functional 21 capacity”)). Finally, the Court is hard-pressed to see how plaintiff’s ability to eat breakfast, prepare 22 simple meals using canned foods or the microwave, take medications using a pillbox, and take 23 public transportation, in any way detracts from Dr. Grigor’s opinion. [AR at 412.] Indeed, the stated 24 25 d. Conclusion 26 Based on the foregoing, and a “holistic review of the record,” none of the reasons provided 27 by the ALJ for giving Dr. Grigor’s 2013 opinion “little weight” was specific and legitimate and/or 28 11 1 supported by substantial evidence.6 Remand is warranted on this issue. 2 3 2. 2015 MRFC Form 4 The ALJ gave Dr. Grigor’s 2015 opinion “minimal consideration” because in the 2015 MRFC 5 Form, rather than providing the percentage of time plaintiff’s mental impairments preclude any 6 specified task, as requested, Dr. Grigor failed to complete the form properly. [AR at 49.] The ALJ 7 found therefore that he could not determine plaintiff’s non-exertional limitations, although Dr. 8 Grigor “appears to agree [plaintiff] can sustain simple tasks, with no limitation regarding his ability 9 to respond to changes in the work setting.” [Id.] Indeed, it appears Dr. Grigor merely indicated 10 whether plaintiff was able to perform the specified task (“Yes”) or unable to perform the task 11 (“N/A”). [AR at 1342-46.] 12 Plaintiff concedes that “parts of [Dr. Grigor’s 2015] opinion are unclear,” but argues that “Dr. 13 Grigor’s ultimate opinion that [plaintiff] is still unable to work connects her first opinion to a period 14 closer to the ALJ’s decision.” [JS at 7.] Although the 2015 MRFC Form reflects that Dr. Grigor 15 continued to treat plaintiff every 1-3 months since 2013, and had seen him less than one week 16 prior to completing the MRFC Form [AR at 1342], the Court finds that Dr. Grigor’s specific findings 17 are indeed unclear. This was a specific and legitimate reason supported by substantial evidence 18 to discredit this particular opinion. 19 20 C. DR. RITVO 21 On March 20, 2014, examining psychiatrist7 Dr. Ritvo conducted a complete psychiatric 22 consultative evaluation of plaintiff. [AR at 425-29.] Dr. Ritvo also reviewed medical records from 23 6 24 25 26 27 28 Additionally, the ALJ did not discuss “factors such as the nature, extent, and length of the physician-patient working relationship, the frequency of examinations, whether the physician’s opinion is supported by and consistent with the record, and the specialization of the physician,” which the ALJ should have done when he finds -- as he did here -- that the treating physician’s opinion is not controlling. Trevizo, 871 F.3d at 676. 7 Although the ALJ stated that Dr. Ritvo was a “non-treating, non-examining source,” the ALJ also noted that Dr. Ritvo’s “evaluation was based on a detailed examination of [plaintiff].” [AR at 49.] Dr. Ritvo’s report reflects that he was an examining psychiatrist. [AR at 425-29.] 12 1 the California Department of Mental Hygiene EWMHC dated June 7, 2012, where plaintiff had 2 been diagnosed with major depressive disorder with psychotic features, polysubstance abuse 3 dependency, and polysubstance abuse induced psychosis, and was assigned a Global 4 Assessment of Functioning (“GAF”) score of 44. At the 2014 examination, plaintiff complained of 5 anxiety, depression, and auditory hallucinations. [AR at 425.] Dr. Ritvo reported that plaintiff is 6 “appropriate in his dress and demeanor,” and that he “appears genuine and truthful, [and that] 7 [t]here is no evidence of exaggeration or manipulation.” [AR at 427.] Dr. Ritvo also administered 8 several objective psychological tests on plaintiff that, among other things, tested his memory, fund 9 of knowledge, concentration and calculation, proverbs, similarities and differences, and insight and 10 judgment. [AR at 428.] Dr. Ritvo diagnosed plaintiff with chronic organic brain syndrome 11 secondary to polysubstance abuse with auditory hallucinations, and assessed a GAF score of 50. 12 [Id.] He opined that plaintiff has no impairment in his ability to understand, remember or complete 13 simple commands. [AR at 429.] Dr. Ritvo also opined that plaintiff has moderate to severe 14 impairments in the following areas: ability to understand, remember, or complete complex 15 commands; interact appropriately with supervisors, coworkers, or the public; comply with job rules 16 such as safety and attendance; respond to change in the normal workplace setting; and maintain 17 persistence and pace in a normal workplace setting. [Id.] 18 The ALJ gave Dr. Ritvo’s opinion partial but not great weight, because -- as with Dr. Grigor 19 -- the ALJ believed that Dr. Ritvo relied on plaintiff’s self-reports, which the ALJ found to be “less 20 than entirely credible.”8 [AR at 49.] However, Dr. Ritvo did not discredit plaintiff’s own reports, but 21 22 23 24 25 26 27 28 8 Defendant attempts to demonstrate that plaintiff’s self reports are less than entirely credible, by claiming that plaintiff’s statements to Dr. Ritvo regarding his auditory hallucinations are inconsistent with his statement to his social worker that his auditory hallucinations were “rare.” [JS at 17 (citing AR at 44, 1326).] However, reviewing the record in its entirety, plaintiff reported auditory hallucinations numerous times throughout his course of treatment. [AR at 432, 521, 527, 1349, 1351, 1366.] Moreover, the ALJ did not list this alleged inconsistency as a reason to discount Dr. Ritvo’s opinion. Because “[l]ong-standing principles of administrative law require [this Court] to review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ -- not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking,” Bray, 554 F.3d at 1225-26 (emphasis added, citation omitted), the Court cannot affirm the ALJ’s decision on a ground that the ALJ did not consider in making his decision. See Pinto v. (continued...) 13 1 rather specifically found that plaintiff appeared truthful, and was not exaggerating. [AR at 427.] 2 Moreover, Dr. Ritvo’s diagnosis and functional assessment were based on his own objective 3 observations and clinical testing of plaintiff. For these reasons, as well as the Court’s reasoning 4 stated above with respect to the ALJ’s identical basis for discounting Dr. Grigor’s 2013 opinion, 5 this was not a specific and legitimate reason supported by substantial evidence for the ALJ to 6 discount Dr. Ritvo’s opinion. 7 Additionally, this error was not harmless. When plaintiff’s counsel posed a hypothetical to 8 the VE that included the moderate to severe limitations found by Dr. Ritvo, the VE testified that 9 there would be no work available for such an individual. [AR at 108-10.]9 Because the ALJ failed 10 to provide specific and legitimate reasons supported by substantial evidence for discounting Dr. 11 Ritvo’s opinion, and because the error was not harmless, remand is warranted on this issue. 12 13 VI. 14 REMAND FOR FURTHER PROCEEDINGS 15 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at 16 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where 17 the record has been fully developed, it is appropriate to exercise this discretion to direct an 18 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding 19 issues that must be resolved before a determination can be made, and it is not clear from the 20 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly 21 evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 22 23 In this case, there are outstanding issues that must be resolved before a final determination can be made. In an effort to expedite these proceedings and to avoid any confusion or 24 8 25 26 27 28 (...continued) Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (“[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.”). 9 The Court is not resolving the issue of whether a moderate to severe limitation would result in plaintiff missing three or more days of work a month. This factual determination should be decided on remand. 14 1 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 2 proceedings. Because the ALJ failed to provide specific and legitimate reasons for discounting 3 the 2013 opinion of Dr. Grigor and the 2014 opinion of Dr. Ritvo, the ALJ on remand shall 4 reassess the medical opinions of record, including the opinions of Dr. Grigor and Dr. Ritvo. The 5 ALJ must explain the weight afforded to each opinion and provide legally adequate reasons for 6 any portion of an opinion that the ALJ discounts or rejects, including a legally sufficient explanation 7 for crediting one doctor’s opinion over any of the others. The ALJ shall then reassess plaintiff’s 8 RFC and determine, at step five, with the assistance of a VE if necessary, whether there are jobs 9 existing in significant numbers in the national economy that plaintiff can perform.10 10 11 VII. 12 CONCLUSION 13 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 14 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 15 proceedings consistent with this Memorandum Opinion. 16 17 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 18 19 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 20 21 DATED: July 17, 2018 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 10 28 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to return to his past work. 15
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