Steven Alvarez v. Carolyn W Colvin, No. 5:2013cv02038 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the decision of t he Commissioner, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (kl)
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Steven Alvarez v. Carolyn W Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 STEVEN ALVAREZ, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 13-2038-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income (“SSI”). 21 The parties consented to the jurisdiction of the undersigned U.S. 22 Magistrate Judge under 28 U.S.C. § 636(c). This matter is before 23 the Court on the parties’ Joint Stipulation, filed July 15, 2014, 24 which the Court has taken under submission without oral argument. 25 For the reasons stated below, the Commissioner’s decision is 26 reversed and this action is remanded for further proceedings. 27 28 1 Dockets.Justia.com 1 II. BACKGROUND 2 Plaintiff was born on March 12, 1987. 3 Record (“AR”) 150.) (Administrative He completed the 12th grade and previously 4 worked as a parking valet, courier, and construction laborer. 5 (AR 177.) 6 7 SSI. On November 12, 2010, Plaintiff filed an application for (AR 61-62, 150-58.) Plaintiff alleged that he had been 8 unable to work since August 10, 2009 (AR 150), and listed his 9 medical conditions as “not coherent,” “racing thoughts,” 10 “depressed,” “anxious,” “OCD,” “blank look,” “emotional d/o,” 11 “bi-polar,” “schizophrenia,” “schizoaffective,” “phychosis 12 [sic],” and “obsessive eating” (AR 176). After Plaintiff’s 13 application was denied, he requested a hearing before an 14 Administrative Law Judge. (AR 88-90.) A hearing was held on 15 June 11, 2012, at which Plaintiff, who was represented by 16 counsel, testified, as did his mother and a vocational expert. 17 (AR 26-60.) In a written decision issued June 21, 2012, the ALJ 18 determined that Plaintiff was not disabled. (AR 11-22.) On 19 September 9, 2013, the Appeals Council denied Plaintiff’s request 20 for review. (AR 1-3.) This action followed. 21 III. STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. The ALJ’s findings and 24 decision should be upheld if they are free of legal error and 25 supported by substantial evidence based on the record as a whole. 26 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 27 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 28 means such evidence as a reasonable person might accept as 2 1 adequate to support a conclusion. Richardson, 402 U.S. at 401; 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 3 is more than a scintilla but less than a preponderance. 4 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 6 substantial evidence supports a finding, the reviewing court 7 “must review the administrative record as a whole, weighing both 8 the evidence that supports and the evidence that detracts from 9 the Commissioner’s conclusion.” 10 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 11 either affirming or reversing,” the reviewing court “may not 12 substitute its judgment” for that of the Commissioner. Id. at 13 720-21. 14 IV. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted, or is expected 19 to last, for a continuous period of at least 12 months. 42 20 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 21 (9th Cir. 1992). 22 A. 23 An ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 24 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 26 amended Apr. 9, 1996). In the first step, the Commissioner must 27 determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled 3 1 and the claim must be denied. § 416.920(a)(4)(i). If the 2 claimant is not engaged in substantial gainful activity, the 3 second step requires the Commissioner to determine whether the 4 claimant has a “severe” impairment or combination of impairments 5 significantly limiting his ability to do basic work activities; 6 if not, a finding of not disabled is made and the claim must be 7 denied. § 416.920(a)(4)(ii). If the claimant has a “severe” 8 impairment or combination of impairments, the third step requires 9 the Commissioner to determine whether the impairment or 10 combination of impairments meets or equals an impairment in the 11 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 12 404, Subpart P, Appendix 1; if so, disability is conclusively 13 presumed and benefits are awarded. 14 § 416.920(a)(4)(iii). If the claimant’s impairment or combination of impairments 15 does not meet or equal one in the Listing, the fourth step 16 requires the Commissioner to determine whether the claimant has 17 sufficient residual functional capacity (“RFC”)1 to perform his 18 past work; if so, he is not disabled and the claim must be 19 denied. § 416.920(a)(4)(iv). The claimant has the burden of 20 proving he is unable to perform past relevant work. 21 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 22 case of disability is established. Id. If that happens or if 23 the claimant has no past relevant work, the Commissioner bears 24 the burden of establishing that the claimant is not disabled 25 because he can perform other substantial gainful work available 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 in the national economy. § 416.920(a)(4)(v). That determination 2 comprises the fifth and final step in the sequential analysis. 3 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 4 B. 5 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 6 substantial gainful activity since November 12, 2010, his 7 application date.2 (AR 13.) At step two, he found that 8 Plaintiff had the severe impairments of “affective disorder, 9 obsessive-compulsive disorder, schizophrenia, psychotic disorder, 10 marijuana dependence, rule out dementia, and rule out induced 11 cognitive disorder.” 12 (Id.) At step three, he determined that Plaintiff’s impairments 13 did not meet or equal any of the impairments in the Listing. 14 14-15.) (AR At step four, the ALJ found that Plaintiff had the RFC 15 to perform 16 a full range of work at all exertional levels but with 17 the following nonexertional limitations: [he] can perform 18 simple 19 occasional interaction with coworkers and supervisors; he 20 cannot have contact with the general public; and he can 21 be absent from work 5% of the time. 22 (AR 15.) one to two step instructions; he can have The ALJ found that Plaintiff could perform his past 23 relevant work as a construction laborer as he actually performed 24 2 The ALJ assessed whether Plaintiff had been under a 25 disability on or after his application date rather than his 26 alleged onset date (see AR 13, 22), noting that the earliest month Plaintiff could receive SSI benefits was the month 27 following the month in which he filed his application (AR 17 (citing § 416.335)). Plaintiff has not challenged that portion 28 of the ALJ’s decision. 5 1 it and as generally performed in the regional and national 2 economy. (AR 21-22.) 3 not disabled. He therefore concluded that Plaintiff was (AR 22.) 4 V. DISCUSSION 5 Plaintiff contends that the ALJ erred in discounting the 6 opinions of his treating physician, Dr. Prakashandra C. Patel, 7 and an examining physician, Dr. Romualdo R. Rodriguez. (J. Stip. 8 at 2-3.) For the reasons discussed below, reversal is warranted. 9 Relevant Facts3 10 A. On March 4, 2011, Dr. Rodriguez, a “board eligible” 11 psychiatrist, performed a complete psychiatric evaluation of 12 Plaintiff and reviewed at least some of his medical records. 13 367-73.) (AR They “included records stating that the claimant is 14 ‘not coherent and may have bipolar disorder, schizophrenia, or is 15 schizoaffective.’” (AR 367.) Dr. Rodriguez noted that Plaintiff 16 had been psychiatrically hospitalized three times since he turned 17 21. (AR 368.) He found that Plaintiff reportedly ran errands, 18 went to the store, cooked and made snacks, did household chores, 19 and dressed and bathed himself but that “[r]ecently, someone has 20 to be with him when he is doing these things” and Plaintiff 21 “cannot leave home alone or handle his own cash or pay his own 22 bills.” (AR 369.) Plaintiff had a history of marijuana and 23 methamphetamine use, but it was “not known if he [was] still 24 actually using drugs.” 25 (Id.) Upon examination, Dr. Rodriguez found that Plaintiff’s eye 26 27 3 Because the parties are familiar with the facts, they are 28 summarized only to the extent relevant to the disputed issues. 6 1 contact and interpersonal contact were poor, he was generally 2 uncooperative, and he was unable to spontaneously volunteer 3 information. (Id.) Dr. Rodriguez noted that it was “not clear 4 if [Plaintiff was] under the influence of drugs or alcohol.” 5 (Id.) Plaintiff’s thought processes were disorganized and “not 6 coherent,” and he gave irrelevant answers to questions. 7 370.) (AR He could perform simple math problems and “serial threes 8 slowly up to 12,” though he “talked to himself often,” but he 9 could not spell “world” forward or backward. (AR 371.) When 10 asked the similarities between a table and a chair, Plaintiff 11 answered, “I don’t know.” 12 (Id.) Dr. Rodriguez diagnosed “[r]ule out schizophrenia,” “[r]ule 13 out dementia,” and “[r]ule out drug induced cognitive disorder.” 14 (Id.) He observed, 15 [Plaintiff’s] affect appeared disconnected and [he] just 16 smiled during the interview and insisted that everything 17 is “okay.” His answers during the mental status exam did 18 not have anything to do with the questions and often he 19 would just ignore the question and not answer. 20 It is hard to tell if the claimant has developed 21 schizophrenia 22 condition is drug induced. 23 tox screen would prove useful to better understand what 24 his true condition is. or dementia or that his psychiatric Psychological testing and a 25 (AR 372.) 26 Dr. Rodriguez opined that Plaintiff was unable to 27 understand, remember, or carry out even simple one- or two-step 28 job instructions. (Id.) He further found that Plaintiff was 7 1 “moderately to severely” limited in his ability to (1) relate to 2 and interact with supervisors, coworkers, and the public; (2) 3 maintain concentration, attention, persistence, and pace; (3) 4 adapt to common workplace stresses; (4) maintain regular 5 attendance and consistently perform work activities; and (5) 6 perform work activities without special or additional 7 supervision. (AR 372-73.) Dr. Rodriguez believed that Plaintiff 8 was incapable of managing his own funds. 9 (AR 373.) On September 19, 2011, Dr. Patel completed a two-page check- 10 off form titled “Medical Opinion Re: Ability to Do Work-Related 11 Activities (Mental).”4 (AR 424-25.) Dr. Patel opined that 12 Plaintiff was “[s]eriously limited [in], but not precluded” from, 13 carrying out very short and simple instructions and adhering to 14 basic standards of neatness and cleanliness.5 (Id.) Dr. Patel 15 opined that Plaintiff was “[u]nable to meet competitive 16 standards” in the following areas: understanding and remembering 17 very short and simple instructions, maintaining regular 18 attendance, working with or around others without being 19 distracted, asking simple questions and requesting assistance, 20 getting along with coworkers, dealing with normal work stress, 21 dealing with the stress of semiskilled and skilled work, 22 23 4 Dr. Patel did not list an area of specialization, but 24 Plaintiff testified that Dr. Patel was his treating psychiatrist. 25 (AR 40-41, 47; see also AR 243.) 26 27 28 5 The form defined “seriously limited, but not precluded” as “ability to function in this area is seriously limited and less than satisfactory, but not precluded,” and stated that “[t]his is a substantial loss of ability to perform the work-related activity.” (AR 424.) 8 1 interacting with the public, and maintaining socially appropriate 2 behavior.6 (Id.) Dr. Patel opined that Plaintiff had “[n]o 3 useful ability to function” in the following areas: remembering 4 worklike procedures; maintaining attention for a two-hour 5 segment; sustaining an ordinary routine without special 6 supervision; making simple work-related decisions; completing a 7 normal workday and workweek; performing at a consistent pace; 8 accepting instructions and responding appropriately to criticism 9 from supervisors; responding appropriately to changes in a 10 routine work setting; being aware of normal hazards and taking 11 appropriate precautions; understanding, remembering, and carrying 12 out detailed instructions; setting realistic goals and making 13 plans independently of others; traveling in an unfamiliar place; 14 and using public transportation.7 15 (Id.) In the section of the form for explaining his findings, Dr. 16 Patel wrote that Plaintiff “cannot comprehend” and “suffers from 17 schizophrenia, the type which affects his cognition/memory and 18 ability to function socially.” (AR 425.) Dr. Patel wrote that 19 Plaintiff is at times “mute” and “at times able to respond by 20 only one or two words.” (Id.) Dr. Patel opined that Plaintiff 21 “cannot retain any type of instructions given to him” and would 22 be “unable to work in any working condition.” (Id.) 23 24 25 26 27 28 6 The form defined “unable to meet competitive standards” as “your patient cannot satisfactorily perform this activity independently, appropriately, effectively on a sustained basis in a regular work setting.” (AR 424.) 7 The form defined “no useful ability to function” as “an extreme limitation,” meaning that “your patient cannot perform this activity in a regular work setting.” (AR 424.) 9 1 The ALJ gave “some weight” to examining physician 2 Rodriguez’s opinion, noting that his “assessment regarding a 3 moderate impairment in the ability to relate [to] and interact 4 with supervisors, coworkers, and the public” was consistent with 5 his objective findings. (AR 20.) The ALJ stated that he was not 6 giving “full weight” to Dr. Rodriguez’s opinion because “his 7 assessment that [Plaintiff] could not understand, remember, and 8 carry out simple one or two [step] job instructions” was 9 inconsistent with Plaintiff’s aunt’s statements in a function 10 report that he could make a sandwich, use the microwave, and cook 11 eggs, which “show [Plaintiff’s] ability to follow simple 12 instructions.” 13 (Id.; see also AR 190.) The ALJ gave “some weight” to Dr. Patel’s opinion, finding 14 that the record did indeed show that Plaintiff’s schizophrenia 15 precluded him from interacting appropriately with the general 16 public. (AR 21.) The ALJ found, however, that it was “unclear” 17 whether Dr. Patel had a “long treating relationship” with 18 Plaintiff that would have “enabled Dr. Patel to provide a 19 longitudinal picture of [Plaintiff’s] medical condition.” (Id.) 20 The ALJ stated that “[d]ue to the lack of such information, [he] 21 does not give full weight to Dr. Patel’s opinion.” (Id.) 22 B. 23 Three types of physicians may offer opinions in Social Applicable Law 24 Security cases: (1) those who directly treated the plaintiff, (2) 25 those who examined but did not treat the plaintiff, and (3) those 26 who did not treat or examine the plaintiff. 27 830. Lester, 81 F.3d at A treating physician’s opinion is generally entitled to 28 more weight than that of an examining physician, and an examining 10 1 physician’s opinion is generally entitled to more weight than 2 that of a nonexamining physician. 3 Id. This is true because treating physicians are employed to 4 cure and have a greater opportunity to know and observe the 5 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 6 If a treating physician’s opinion is well supported by medically 7 acceptable clinical and laboratory diagnostic techniques and is 8 not inconsistent with the other substantial evidence in the 9 record, it should be given controlling weight. § 416.927(c)(2). 10 If a treating physician’s opinion is not given controlling 11 weight, its weight is determined by length of the treatment 12 relationship, frequency of examination, nature and extent of the 13 treatment relationship, amount of evidence supporting the 14 opinion, consistency with the record as a whole, the doctor’s 15 area of specialization, and other factors. 16 § 416.927(c)(2)-(6). When a treating or examining physician’s opinion is not 17 contradicted by other evidence in the record, it may be rejected 18 only for “clear and convincing” reasons. See Carmickle v. 19 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 20 (quoting Lester, 81 F.3d at 830-31). When a treating or 21 examining physician’s opinion is contradicted, the ALJ must 22 provide only “specific and legitimate reasons” for discounting 23 it. Id. The weight given an examining physician’s opinion, 24 moreover, depends on whether it is consistent with the record and 25 accompanied by adequate explanation, among other things. 26 § 416.927(c)(3)-(6). Furthermore, “[t]he ALJ need not accept the 27 opinion of any physician, including a treating physician, if that 28 opinion is brief, conclusory, and inadequately supported by 11 1 clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th 2 Cir. 2002); accord Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 3 1190, 1195 (9th Cir. 2004). 4 C. 5 As discussed, the ALJ found that it was “unclear” whether The ALJ Erred In Assessing Dr. Patel’s Opinion 6 Plaintiff had a “long treatment relationship” with Dr. Patel, 7 which would have “enabled Dr. Patel to provide a longitudinal 8 picture of [Plaintiff’s] medical condition.” (AR 21.) The ALJ 9 concluded that Dr. Patel’s opinion was not entitled to full 10 weight “[d]ue to the lack of such information.” (Id.) The ALJ 11 gave no other reason for discounting Dr. Patel’s opinion. 12 Plaintiff contends that reversal is appropriate because the ALJ 13 failed to support his “conclusory reasons” for rejecting Dr. 14 Patel’s findings and because the ALJ should have further 15 developed the record by “contacting Dr. Patel regarding his 16 treating relationship with [P]laintiff.” (J. Stip. at 7.) 17 Reversal is warranted because the ALJ failed to fulfill his duty 18 to develop the record and failed to provide a sufficient reason 19 for discounting Dr. Patel’s opinion. 20 In determining disability, the ALJ has a “duty to fully and 21 fairly develop the record and to assure that the claimant’s 22 interests are considered.” Garcia v. Comm’r of Soc. Sec., 768 23 F.3d 925, 930 (9th Cir. 2014); see also Howard ex rel. Wolff v. 24 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“In making a 25 determination of disability, the ALJ must develop the record and 26 interpret the medical evidence.”). Nonetheless, it remains the 27 plaintiff’s burden to produce evidence in support of his 28 disability claims. See Mayes v. Massanari, 276 F.3d 453, 459 12 1 (9th Cir. 2001). “[A]mbiguous evidence, or the ALJ’s own finding 2 that the record is inadequate to allow for proper evaluation of 3 the evidence, triggers the ALJ’s duty to conduct an appropriate 4 inquiry.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) 5 (internal quotation marks omitted); accord Tonapetyan v. Halter, 6 242 F.3d 1144, 1150 (9th Cir. 2001). “The ALJ may discharge this 7 duty in several ways, including: subpoenaing the claimant’s 8 physicians, submitting questions to the claimant’s physicians, 9 continuing the hearing, or keeping the record open after the 10 hearing to allow supplementation of the record.” 11 F.3d at 1150. Tonapetyan, 242 The ALJ’s duty to develop the record is 12 heightened, moreover, when the claimant may be mentally ill and 13 thus unable to protect his own interests. Id.; see also Dervin 14 v. Astrue, 407 F. App’x 154, 156 (9th Cir. 2010). 15 Here, the ALJ specifically found that the record was 16 “unclear” and “lack[ed]” information regarding Dr. Patel’s 17 treatment relationship with Plaintiff, and that the doctor’s 18 opinion therefore could not be fully credited. The ALJ’s 19 explicit finding that the record was inadequate triggered his 20 duty to develop it. See McLeod, 640 F.3d at 885. The ALJ failed 21 to discharge that duty by gathering more evidence or leaving the 22 record open, and instead he simply rejected most of Dr. Patel’s 23 opinion. In doing so, the ALJ erred. See Smolen, 80 F.3d at 24 1288 (finding that “[i]f the ALJ thought he needed to know the 25 basis of [a physician’s] opinions in order to evaluate them, he 26 had a duty to conduct an appropriate inquiry, for example, by 27 subpoenaing the physicians or submitting further questions to 28 them” or by “continu[ing] the hearing to augment the record”); 13 1 Dervin, 407 F. App’x at 156 (noting that “[i]n cases of chronic 2 mental impairment . . . the ALJ is required to gather all records 3 of past treatment”); § 416.912(d) (“Before we make a 4 determination that you are not disabled, we will develop your 5 complete medical history for at least the 12 months preceding the 6 month in which you file your application . . . .”). 7 The ALJ’s failure to further develop the record, moreover, 8 does not appear to have been harmless. See Molina v. Astrue, 674 9 F.3d 1104, 1115 (9th Cir. 2012) (error harmless when 10 “inconsequential to the ultimate disability determination”). 11 Plaintiff reported in a “Disability Report – Appeal” that he 12 first saw Dr. Patel on June 13, 2011, and that his next 13 appointment was scheduled for July 12. (AR 243.) At the June 14 11, 2012 hearing, moreover, Plaintiff and his mother both 15 testified that Plaintiff saw Dr. Patel every month. 16 46-47, 51.) (See AR 41, Thus, it appears that Dr. Patel likely saw Plaintiff 17 at least a few times before rendering his September 19, 2011 18 opinion. Moreover, the other record evidence is not inconsistent 19 with Dr. Patel’s opinion, as it shows that Plaintiff was 20 involuntarily hospitalized and treated for his psychiatric 21 conditions three times: August 11 to 13, 2009 (see AR 296-346),8 22 November 11 to 12, 2010 (see AR 265-73), and July 25 to August 5, 23 2011 (see AR 392-98, 400-22). Plaintiff’s diagnoses included 24 25 26 27 28 8 Following this hospitalization, Plaintiff was discharged to Cedar House, apparently a rehabilitation facility. (See AR 29697; see also 283-84 (Aug. 27, 2009 note stating that Plaintiff needed refill of medication and was living at “Cedar House rehab”).) The record does not contain any records from Cedar House. 14 1 psychotic disorder (AR 296, 303, 395), rule out schizoaffective 2 disorder (AR 267), cannabis abuse (id.; see also AR 303, 401), 3 bipolar I disorder (AR 267), schizophrenia “paranoid type” (AR 4 401), and rule out “[o]ther substance induced Psychotic disorder” 5 (AR 303). Dr. Rodriguez, moreover, examined Plaintiff and found 6 limitations similar to those found by Dr. Patel, such as an 7 inability to understand, remember, or carry out simple one- or 8 two-step job instructions and moderate to severe limitations on 9 his ability to maintain concentration, attention, persistence, 10 and pace; adapt to common workplace stresses; maintain regular 11 attendance; and perform work activities without special or 12 additional supervision. (AR 372-73; compare AR 424-25 (Dr. 13 Patel’s finding that Plaintiff had “[n]o useful ability to 14 function” in areas including maintaining attention for two hours, 15 sustaining ordinary routine without special supervision, 16 completing normal workweek without interruption, performing at 17 consistent pace, and responding to changes in routine work 18 setting and that he was “[u]nable to meet competitive standards” 19 in areas including understanding and remembering very short and 20 simple instructions, maintaining regular attendance, and dealing 21 with normal work stress). 22 Moreover, other than the lack of evidence regarding Dr. 23 Patel’s treatment relationship with Plaintiff, the ALJ provided 24 no reason for discounting his opinion. Indeed, even if Dr. Patel 25 were an examining physician who had no treatment relationship at 26 all with Plaintiff, the ALJ still would have been obligated to 27 provide at least specific and legitimate reasons for discounting 28 his opinion, and more likely clear and convincing reasons given 15 1 that little in the record contradicted it. Thus, this case must 2 be remanded so that the ALJ can further develop the record and 3 reassess the opinion of treating physician Dr. Patel. 4 D. 5 Plaintiff contends that the ALJ “failed to provide specific Dr. Rodriguez’s Opinion 6 and legitimate reasons, supported by substantial evidence, for 7 implicitly rejecting [Dr. Rodriguez’s] opinions that [P]laintiff 8 is moderately to severely limited in his ability to maintain 9 regular attendance in the work place and perform work activities 10 on a consistent basis as well as to perform work activities 11 without special or additional supervision.” (J. Stip. at 15.) 12 Indeed, it appears that the ALJ may have erred in assessing Dr. 13 Rodriguez’s decision. The ALJ rejected Dr. Rodriguez’s opinion 14 that Plaintiff could not understand, remember, or carry out 15 simple one- or two-step job instructions based solely on 16 Plaintiff’s aunt’s statements that he could make a sandwich, use 17 a microwave, and cook eggs. (AR 20; see also AR 190.) Even 18 assuming that is a legally sufficient reason, the ALJ failed to 19 give any reasons for rejecting Dr. Rodriguez’s other findings, 20 such as his conclusion that Plaintiff was “moderately to 21 severely” limited in his ability to adapt to common workplace 22 stresses and perform work activities without special or 23 additional supervision. (See AR 372-73.) Because the Court 24 remands this case for further development of the record, however, 25 it need not resolve this issue. On remand, the ALJ will 26 necessarily reassess Dr. Rodriguez’s opinion in light of the 27 additional evidence, which will presumably include Dr. Patel’s 28 treatment notes. 16 1 E. 2 When, as here, an ALJ errs in denying benefits, the Court Remand for Further Proceedings Is Appropriate 3 generally has discretion to remand for further proceedings. 4 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). See When no 5 useful purpose would be served by further administrative 6 proceedings, however, or when the record has been fully 7 developed, it is appropriate under the “credit-as-true” rule to 8 direct an immediate award of benefits. Id. at 1179 (noting that 9 “the decision of whether to remand for further proceedings turns 10 upon the likely utility of such proceedings”); see also Garrison 11 v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014). 12 Under the credit-as-true framework, three circumstances must 13 be present before the Court may remand to the ALJ with 14 instructions to award benefits: “(1) the record has been fully 15 developed and further administrative proceedings would serve no 16 useful purpose; (2) the ALJ has failed to provide legally 17 sufficient reasons for rejecting evidence, whether claimant 18 testimony or medical opinion; and (3) if the improperly 19 discredited evidence were credited as true, the ALJ would be 20 required to find the claimant disabled on remand.” 21 F.3d at 1020. Garrison, 759 When, however, the ALJ’s findings are so 22 “insufficient” that the Court cannot determine whether the 23 rejected testimony should be credited as true, the Court has 24 “some flexibility” in applying the credit-as-true rule. Connett 25 v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also 26 Garrison, 759 F.3d at 1020 (noting that Connett established that 27 credit-as-true rule may not be dispositive in all cases). 28 flexibility should be exercised “when the record as a whole This 17 1 creates serious doubt as to whether the claimant is, in fact, 2 disabled within the meaning of the Social Security Act.” 3 Garrison, 759 F.3d at 1021. 4 Here, under Connett, remand for further proceedings is 5 appropriate. As discussed, the ALJ failed to fully develop the 6 record, and further administrative proceedings are required to 7 allow him to do so. After obtaining additional evidence, which 8 presumably will include Dr. Patel’s treatment notes, the ALJ must 9 reassess the medical-opinion evidence. Based on the current 10 record, the Court cannot determine whether either medical opinion 11 should be credited as true or whether Plaintiff is in fact 12 disabled. Moreover, the medical evidence indicates that 13 Plaintiff’s conditions may stem from substance abuse, in which 14 case he would not be entitled to benefits. (See, e.g., AR 372 15 (Dr. Rodriguez finding unclear whether “psychiatric condition is 16 drug induced”); AR 303 (diagnosing possible “[o]ther substance 17 induced Psychotic disorder”)); see also 42 U.S.C. § 423(d)(2)(C) 18 (claimant not disabled “if alcoholism or drug addiction would 19 . . . be a contributing factor material to the Commissioner’s 20 determination that the individual is disabled”). If on remand 21 the ALJ determines that Plaintiff is disabled, he must then 22 assess whether Plaintiff would still be found disabled if he 23 stopped abusing substances. See Bustamante v. Massanari, 262 24 F.3d 949, 955 (9th Cir. 2001) (“If the ALJ finds that the 25 claimant is disabled and there is ‘medical evidence of [his or 26 her] drug addiction or alcoholism,’ then the ALJ should proceed 27 under §§ 404.1535 or 416.935 to determine if the claimant ‘would 28 still [be found] disabled if [he or she] stopped using alcohol or 18 1 drugs.’” (alterations in original)); § 416.935 (“If we find that 2 you are disabled and have medical evidence of your drug addiction 3 or alcoholism, we must determine whether your drug addiction or 4 alcoholism is a contributing factor material to the determination 5 of disability . . . .”). 6 VI. CONCLUSION 7 Consistent with the foregoing, and pursuant to sentence four 8 of 42 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 9 REVERSING the decision of the Commissioner, GRANTING Plaintiff’s 10 request for remand, and REMANDING this action for further 11 proceedings consistent with this Memorandum Opinion. IT IS 12 FURTHER ORDERED that the Clerk serve copies of this Order and the 13 Judgment on counsel for both parties. 14 15 16 17 DATED: December 22, 2014 JEAN ROSENBLUTH U.S. Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 9 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 19
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