Leonard Dewayne Smith v. Carolyn W. Colvin, No. 5:2016cv02298 - Document 24 (C.D. Cal. 2017)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson re: IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. LET JUDGMENT BE ENTERED ACCORDINGLY. (rh)

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Leonard Dewayne Smith v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 ) NO. EDCV 16-2298-KS ) ) ) REPORT AND RECOMMENDATION OF ) UNITED STATES MAGISTRATE JUDGE NANCY A. BERRYHILL,1 Acting ) Commissioner of Social Security, ) ) Defendant. _________________________________ ) LEONARD DEWAYNE SMITH, Plaintiff, v. 11 12 13 14 15 16 17 18 INTRODUCTION 19 20 Plaintiff filed a Complaint on November 3, 2016, seeking review of the denial of his 21 applications for a period of disability and disability insurance benefits (“DIB”). (Dkt. No. 22 1.) On December 2, 2016, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed 23 before the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12, 13.) On July 19, 24 2017, the parties filed a Joint Stipulation (“Joint Stip.”) (Dkt. No. 23) in which plaintiff 25 seeks an order reversing the Commissioner’s decision and either ordering the payment of 26 27 28 1 The Court notes that Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended to substitute Nancy A. Berryhill for Carolyn Colvin as the defendant in this action. 1 Dockets.Justia.com 1 benefits or remanding the matter for further administrative proceedings (Joint Stip. at 2 15). The Commissioner requests that the ALJ’s decision be affirmed or remanded for further 3 proceedings. (See id. at 15-16.) The Court has taken the matter under submission without 4 oral argument. 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 8 On August 26, 2014, Plaintiff, who was born on February 1, 1966, filed an application 9 for DIB.2 (See Joint Stip. at 2; Administrative Record (“AR”) 18, 100, 173.) Plaintiff 10 alleged disability commencing June 1, 2014, due to: PTSD; depression; irritable bowel 11 syndrome; anxiety; tinnitus; mood swings; arthritis; and lumas spine. 12 Plaintiff previously worked in the following occupations: security guard (DOT 372.667- 13 034); and department manager (DOT 299.137-010). (AR 28, 191) The Commissioner 14 denied Plaintiff’s application initially and on reconsideration. (AR 100, 123.) On February 15 24, 2015, Plaintiff requested a hearing. (AR 128-29.) On May 24, 2016, Administrative 16 Law Judge Lynn Ginsburg (“ALJ”) held a hearing. (AR 54.) Plaintiff, who was represented 17 by counsel, and Sonia Peterson, the vocational expert (“VE”), testified at the hearing. (AR 18 54-.) 19 application for DIB. (AR 18-29.) On October 12, 2016, the Appeals Council denied 20 Plaintiff’s request for review. (AR 1-4.) (AR 173, 189.) On July 27, 2016, the ALJ issued an unfavorable decision, denying Plaintiff’s 21 22 SUMMARY OF ADMINISTRATIVE DECISION 23 24 The ALJ found that Plaintiff met the insured status requirements of the Social Security 25 Act through September 30, 2017 and had not engaged in substantial gainful activity after the 26 alleged onset date of June 1, 2014. (AR 20.) The ALJ further found that Plaintiff had the 27 2 28 Plaintiff was 48 years old on the alleged onset date and thus met the agency’s definition of a younger individual. See 20 C.F.R. § 404.1563(c). 2 1 following severe impairments: hypertension; diabetes mellitus; post-traumatic stress 2 disorder; depression; and chronic back pain. (AR 20.) The ALJ concluded that Plaintiff did 3 not have an impairment or combination of impairments that met or medically equaled the 4 severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 5 404.1520(d), 404.1525, 404.1526). (Id. 21.) The ALJ determined that Plaintiff had the 6 residual functional capacity (“RFC”) to perform light work as follows: 7 8 Lift and carry 40 pounds occasionally and 20 pounds frequently; can sit, stand, 9 and walk for 6 hours in an 8 hour workday with normal breaks and no 10 limitations on sitting; can never climb ladders, ropes, or scaffolds but can 11 frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; can 12 have only occasional exposure to unprotected heights; can perform unskilled 13 work at all reasoning levels appropriate for unskilled work and can have only 14 occasional superficial interaction with the public. 15 16 (AR 22.) 17 18 The ALJ determined that Plaintiff was unable to perform his past relevant work as a 19 security guard and department manager. (AR 28.) However, the ALJ concluded that, given 20 Plaintiff’s age, education, work experience, and RFC, there were other jobs that exist in 21 significant numbers in the national economy that Plaintiff could perform, including the 22 representative occupations of cleaner (DOT 323.687-014), mail room clerk (DOT 209.687- 23 026), and photocopying machine operator (DOT 207.685-014). (AR 29.) Accordingly, the 24 ALJ determined that Plaintiff had not been under a disability, as defined in the Social 25 Security Act, from the alleged onset through the date of the ALJ’s decision. (Id. 28.) 26 \\ 27 \\ 28 \\ 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 4 determine whether it is free from legal error and supported by substantial evidence in the 5 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 6 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 7 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r 8 of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when 9 the evidence is susceptible to more than one rational interpretation, we must uphold the 10 ALJ’s findings if they are supported by inferences reasonably drawn from the 11 record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 12 13 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 14 nonetheless must review the record as a whole, “weighing both the evidence that supports 15 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 16 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 17 Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 18 is responsible for determining credibility, resolving conflicts in medical testimony, and for 19 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 20 21 The Court will uphold the Commissioner’s decision when the evidence is susceptible 22 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 23 2005). However, the Court may review only the reasons stated by the ALJ in his decision 24 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 25 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 26 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error 27 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error, 28 4 1 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 2 492 (9th Cir. 2015) (internal citations omitted). 3 DISCUSSION 4 5 6 Plaintiff alleges the following errors: (1) the ALJ did not properly consider the 7 examining psychiatrist’s opinion; and (2) the ALJ did not properly consider the treating 8 psychiatrist’s opinion. (Joint Stip. at 3.) 9 10 I. Applicable Law 11 12 “The ALJ is responsible for translating and incorporating clinical findings into a 13 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In 14 doing so, the ALJ must articulate a “substantive basis” for rejecting a medical opinion or 15 crediting one medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th 16 Cir. 2014); see also Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ 17 cannot in its decision totally ignore a treating doctor and his or her notes, without even 18 mentioning them”). Generally, the medical opinion of a claimant’s treating physician is 19 given “controlling weight” so long as it “is well-supported by medically acceptable clinical 20 and laboratory diagnostic techniques and is not inconsistent with the other substantial 21 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); Trevizo v. Berryhill, 22 862 F.3d 987, 997 (9th Cir. 2017). When a treating physician’s opinion is not controlling, it 23 is weighted according to factors such as the length of the treatment relationship and the 24 frequency of examination, the nature and extent of the treatment relationship, supportability, 25 consistency with the record, and specialization of the physician. 20 C.F.R. § 404.1527(c)(2)- 26 (6); Trevizo, 862 F.3d at 997. These same factors guide the ALJ’s evaluation of the opinions 27 of other medical sources. 20 C.F.R. § 404.1527(e)(2)(ii). 28 5 1 Ultimately, “[t]o reject the uncontradicted opinion of a treating or examining doctor, 2 an ALJ must state clear and convincing reasons that are supported by substantial evidence.” 3 Trevizo, 862 F.3d at 997 (internal quotation marks and citation omitted); Ghanim v. Colvin, 4 763 F.3d 1154, 1160-61 (9th Cir. 2014). “If a treating or examining doctor’s opinion is 5 contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific 6 and legitimate reasons that are supported by substantial evidence.” Trevizo, 862 F.3d at 997. 7 “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts 8 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” 9 Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 10 11 II. ALJ’s Assessment of the Examining Psychiatrist’s Opinion 12 13 A. The Opinion of Dr. Reynaldo Abejuela 14 15 Plaintiff contends that the ALJ erred in her evaluation of the opinion of Reynaldo 16 Abejuela, M.D., diplomate of the American Board of Psychiatry and Neurology, who 17 examined Plaintiff in connection with his claim for benefits on October 20, 2014. (Joint 18 Stip. 3-6; see also AR 401-07.) 19 20 Plaintiff reported to Dr. Abejuela that he has a history of Post-Traumatic Stress 21 Disorder (PTSD) dating back to his return from Desert Storm in 1991 (AR 401), and Dr. 22 Abejuela noted that other subjective symptoms include depression and anxiety AR 402). Dr. 23 Abejuela described Plaintiff as “emotionally unstable, easily distracted, and unable to focus 24 during the interview.” 25 “psychomotor retardation with slowness of movement.” (AR 403.) Dr. Abejuela described 26 Plaintiff’s affective status as “depressed and anxious,” “apathetic and withdrawn.” (AR 27 404.) 28 “inadequate.” (AR 403.) His eye contact was “poor” and he exhibited Dr. Abejuela described Plaintiff’s impulse control as “poor” and his insight as (AR 404.) Dr. Abejuela noted that Plaintiff’s attention span and 6 1 concentration was “decreased” and Plaintiff struggled with serial 3s. (AR 404.) Plaintiff 2 had no response when asked for the date. (AR 404.) Plaintiff exhibited impairments of both 3 his short-term and long-term memory. (AR 404.) Plaintiff could recall only one of three 4 items at three and five minutes. (AR 404.) When asked how we celebrate the 4th of July, 5 Plaintiff answered, “I don’t know.” (AR 404.) Dr. Abejuela diagnosed Plaintiff with 6 chronic PTSD. (AR 405.) 7 8 Dr. Abejuela assessed the following limitations. Plaintiff is moderately impaired in his 9 ability to: perform daily activities; maintain social functioning; and understand, carry out, 10 and remember simple instructions. (AR 406.) Plaintiff is moderately to severely impaired in 11 the areas of: concentration, persistence, and pace; and occupational and social functioning. 12 (AR 406-07.) Plaintiff is severely impaired in his ability to: understand, carry out, and 13 remember complex instructions; respond to coworkers, supervisors, and the public; respond 14 appropriately to usual work situations; and deal with changes in a routine work setting. (AR 15 406.) Dr. Abejuela also assessed Plaintiff as severely impaired in the area of episodes of 16 emotional deterioration, stating that “there are repeated episodes of emotional deterioration 17 in work-like situations.” (AR 406.) Dr. Abejuela stated that Plaintiff’s psychiatric prognosis 18 is “fair to guarded.” (AR 407.) 19 20 B. Discussion 21 22 The ALJ assigned little weight to Dr. Abejuela’s opinion because: (1) it was based on 23 a one-time examination with the opportunity to review only a limited amount of the other 24 medical evidence in record; (2) the treating source records reflect far less restrictive 25 limitations and indicate that Plaintiff has been stable on medications for years; and (3) 26 Plaintiff’s function report reflects far fewer functional restrictions. (AR 25.) The Court 27 considers each of these justifications in turn to determine whether they are specific and 28 7 1 legitimate reasons supported by substantial evidence for discounting Dr. Abejuela’s 2 opinions. 3 1. One-Time Examination and Limited Review of the Record 4 5 6 The ALJ’s first reason for discounting Dr. Abejuela’s opinion is specific but not 7 legitimate. 8 Plaintiff once in connection with his claim for benefits. An examining physician’s opinion is 9 generally entitled to less weight than a treating physician’s opinion because the treating 10 physician had more contact with Plaintiff and, thus, has a “longitudinal picture” of the 11 Plaintiff’s impairments, symptoms, and limitations. See 20 C.F.R. § 404.1527(c)(2); see 12 also 20 C.F.R. § 404.1527c(c)(3)(i)-(ii) (length of time a medical source treated plaintiff and 13 frequency of plaintiff’s visits may demonstrate that the medical source “has a longitudinal 14 understanding” of the plaintiff’s impairments) (effective March 27, 2017). However, the 15 regulations also state that “[g]enerally, we give more weight to the medical opinion of a 16 source who has examined you than to a medical opinion of a medical source who has not 17 examined you.” 20 C.F.R. § 404.1527(c)(1); see also 20 C.F.R. § 404.1527c(c)(3)(v) (“a 18 medical source may have a better understanding of your impairment(s) if he or she examines 19 you then if the medical source only reviews evidence in your folder”) (effective March 27, 20 2017). Accordingly, while the limited relationship between a plaintiff and an examining 21 physician may be a legitimate reason for favoring a treating physician’s opinion over an 22 examining physician’s opinion, it is not a legitimate reason for favoring a reviewing 23 physician’s opinion over the examining physician’s opinion – which is what the ALJ did in 24 Plaintiff’s case. (See AR 25) (giving great weight to the opinions of the state agency 25 medical consultants who never examined Plaintiff). As a consulting examining physician, Dr. Abejuela’s job was to examine 26 27 The ALJ also asserts that Dr. Abejuela’s opinion is entitled to less weight because he 28 had the opportunity “to review only a limited amount of the other medical evidence of 8 1 record.” (AR 25.) There is not substantial evidence in the record to support this assertion. 2 Dr. Abejuela conducted his examination of Plaintiff on October 20, 2014, and he stated that 3 he had reviewed Nurse Practitioner Mary Beare’s June 16, 2014 treatment notes as well as 4 “the rest of the medical evidence and background information.” (AR 402.) There is no 5 evidence in the record to indicate that the records Defendant provided Dr. Abejuela, and 6 which Dr. Abejuela stated he had reviewed, were any less complete than the records that 7 Defendant provided Dr. Robert Brill, the reviewing state agency psychologist, who issued 8 his opinion a mere seven days after Dr. Abejuela and whose opinion the ALJ ostensibly 9 credited over Dr. Abejuela’s. (Compare AR 97 (Dr. Brill dated his opinion 10/27/2014) with 10 AR 401 (Dr. Abejuela dated his opinion October 20, 2014).) 11 12 2. Inconsistency with Treating Source Records 13 14 The ALJ’s second reason for discounting Dr. Abejuela’s opinion is that it was 15 inconsistent with Plaintiff’s treatment records, which the ALJ found reflected far less 16 restrictive limitations and indicated that Plaintiff had been stable on medications for years. 17 The ALJ’s findings, however, are not fully supported by substantial evidence in the record. 18 19 Plaintiff’s treatment records from the Veteran’s Administration (“VA”) show that Dr. 20 Tanya D. Scurry, a psychiatrist, treated Plaintiff through a combination of medication and 21 talk therapy from November 2012 (see AR 275) until her departure from the VA in late May 22 2014 (see AR 260). On February 11, 2014, Dr. Scurry reported that Plaintiff felt the 23 sertraline had been effective, his sleep was fair, his mood was “not too bad,” his affect was 24 “anxious,” his insight and judgment were “erratic,” and Plaintiff was working at a restaurant 25 while also “training in RE/notary.” (AR 376-77.) On March 14, 2014, Dr. Scurry reported 26 that Plaintiff’s appetite is good and his sleep is fair, his mood is “stressed a little more” and 27 he seems “distracted,” his insight and judgment were “erratic,” “he’d like to cont. sertraline 28 at current dose b/c he feels his stress is environmental and he plans to make changes to this 9 1 incl. returning to marital tx with his pastor.” (AR 353-54.) On May 14, 2014, Dr. Scurry 2 noted that Plaintiff’s appetite and sleep are “fairly stable,” his insight and judgment were 3 “erratic,” and he felt that the sertraline is “helping.” (AR 329-30.) On May 25, 2014, Dr. 4 Scurry reported that Plaintiff was “frustrated with working 2-3 jobs trying to keep food on 5 the table, pay bills etc.” (AR 321.) She continued to describe his insight and judgment as 6 “erratic.” (AR 321-22.) 7 8 In a separate undated letter concerning Plaintiff’s request for benefits through the 9 Veteran’s Administration, which was written after Dr. Scurry’s departure, Dr. Scurry wrote 10 the following: 11 12 [Plaintiff] carries a diagnosis of post-traumatic stress disorder (PTSD, chronic) 13 and major depressive disorder, recurrent, moderate. 14 include irritability, insomnia, increased startle response, hypervigilance, 15 nightmares, flashbacks, and emotional numbness/detachment. His depressive 16 symptoms include low mood, erratic appetite, hopelessness, anhedonia, low 17 motivation, poor focus/concentration, and short term memory loss. He has 18 found it difficult to retain gainful employment since serving in the military due 19 to the persistence of these symptoms. During the time that I provided care for 20 [Plaintiff] I saw him every 2 weeks because, in my clinical opinion, the 21 significance of his symptoms required this additional support. He also carried a 22 diagnosis of substance abuse/dependence but this was a direct result of the 23 PTSD and depressive symptoms (i.e., a coping mechanism) and he was actively 24 seeking addiction treatment in my clinic . . . 25 function in society, care for his family, and seek/maintain employment, it’s 26 been a struggle for him. 27 28 (AR 788.) 10 His PTSD symptoms As much as he has tried to 1 Following Dr. Scurry’s departure from the VA, Plaintiff saw Nurse Practitioner Mary 2 Beare on June 26, 2014. (AR 316-320.) Nurse Beare acknowledged that Plaintiff was “new 3 to [her]” (AR 316), however she went on to describe Plaintiff as “stable for years on the 4 sertraline” (AR 320). She explained to Plaintiff that she does not do talk therapy, she only 5 works with major mental illness, and her duties are limited to medication management. (AR 6 316.) According to Nurse Beare, Plaintiff denied any psychotic symptoms but “talked of 7 some paranoid ideation but that can be connected to the [marijuana] use,” reported some 8 problems with sleep, and generally “wants to talk about wife . . . [not] about his own issues.” 9 (AR 316-17.) Nurse Beare described Plaintiff’s insight as “good.” (AR 317.) This is the 10 only record reflecting any interaction between Nurse Beare and Plaintiff. (See generally AR 11 257-275.) 12 13 On July 29, 2014, one month after Plaintiff’s appointment with Nurse Beare, Plaintiff 14 saw John M. Byrne, DO, for a physical examination. (AR 305.) He reported to Dr. Byrne 15 that the combination of sertraline and talking to Dr. Scurry had helped with his mental 16 impairments, but Dr. Scurry had left. (AR 305.) 17 18 On January 15, 2015, Plaintiff saw Behavioral Health Nurse Practitioner Richard L. 19 Bogard for medication management. (AR 776-77.) Dr. Bogard noted that rheumatology had 20 recommended substituting Vanlafaxine for sertraline. (AR 777.) Dr. Bogard also reported 21 that Plaintiff has had mild to moderate difficulty with anxiety and dysphoria. (AR 777.) Dr. 22 Bogard conducted a mental status examination, which revealed that Plaintiff was 23 experiencing 24 concentration/memory, irritability, anxiety – including, worry, insomnia, tightness in chest, 25 diaphoresis, feelings of doom, and obsessive thoughts, and PTSD symptoms – including 26 nightmares, flashbacks, “hyperstartle/hypervigilance,” and avoidance. (AR 779-80.) Dr. 27 Bogard described Plaintiff’s short and long-term memory as “intact” and his insight and a “sad mood,” sleep disturbance, 28 11 anhedonia, anergia, decreased 1 judgment as “fair.” (AR 782.) He recommended increasing Plaintiff’s dosage of sertraline 2 and referred Plaintiff for a psychotherapy evaluation. (AR 782.) 3 4 On January 30, 2015, Plaintiff reported to Eula Langga-Sharifi, a rheumatologist, that 5 he is going to the gym and exercising on a regular basis in addition to caring for his two year 6 old son. (AR 774.) He complained of difficulty sleeping and wondered about Venlafaxine 7 instead of sertraline for depression. (AR 774.) 8 9 On March 18, 2015, Plaintiff told Dr. Byrne that he was “still struggling” with his 10 mood and “wants to go back to psychology.” (AR 754.) The following day, March 19, 11 2015, Plaintiff told Lena M. Payne, a licensed clinical social worker (“LCSW”), that he 12 would like to be assigned to a new psychiatrist because Dr. Scurry had left. (AR 656, 750.) 13 14 On April 29, 2015, Plaintiff was seen again by Nurse Bogard for sleep disruption, 15 anxiety, and irritability. (AR 740-48.) Plaintiff reported moderate depression with sad 16 mood, 17 concentration/memory. (AR 742.) Nurse Bogard indicated that Plaintiff had “moderate” 18 mania and “moderate” anxiety” with mild to moderate PTSD, including nightmares, 19 “hyperstartle/hypervigilance,” and avoidance. (AR 743.) Nurse Bogard described Plaintiff’s 20 insight and judgment as “fair” and Plaintiff’s short and long-term memory as “intact.” (AR 21 745.) crying spells, sleep disturbance, anhedonia, anergia, and decreased 22 23 On May 18, 2015, Dr. Chau L. Nguyen, a rheumatologist, noted that Plaintiff’s 24 sertraline dosage was increased but he continued to experience symptoms of PTSD. (AR 25 733.) Dr. Nguyen stated that Plaintiff may want to consider changing to Venlafaxine in the 26 future. (AR 734.) On September 16, 2015, Dr. Byrne noted that Plaintiff “doesn’t feel like 27 sertraline is helping, wants to try venlafaxine.” (AR 708.) On October 15, 2015, a treating 28 note signed by Talha Khawar, MD, and Nasime Daoud, MD, indicated that Plaintiff was 12 1 advised to change his medications and was taken off the sertraline and placed on 2 Venlafaxine, which Plaintiff stated “has been working well” although “he still has sx of 3 PTSD.” (AR 699-700.) 4 5 Based on the Court’s review of the treating records, there is substantial evidence to 6 support the ALJ’s findings that Dr. Abejuela’s assessment of limitations in Plaintiff’s ability 7 to understand, carry out, and remember simple instructions and perform daily activities are 8 inconsistent with Plaintiff’s treating notes, which generally do not reflect more than mild 9 limitations in these areas. However, the treating notes, along with the assessment of Dr. 10 Brill, the reviewing psychologist, support Dr. Abejuela’s assessment of limitations on 11 Plaintiff’s ability to interact appropriately with coworkers and supervisors and work in 12 coordination with others. (See also AR 95-96 (Dr. Brill’s assessment of limitations on 13 Plaintiff’s ability to perform certain social interactions).) 14 15 Nevertheless, the ALJ discounted these limitations primarily in reliance on the 16 treatment note written by Nurse Beare. Nurse Beare, who saw Plaintiff once and expressed 17 her inability to treat Plaintiff beyond medication management, stated that, despite his 18 complaints of paranoid ideation, Plaintiff had been “stable for years on the sertraline.” (AR 19 320.) The ALJ cherry-picked this one comment from hundreds of pages of treating records, 20 none of which support Nurse Beare’s assessment and all of which were written by treating 21 sources with either greater familiarity with Plaintiff or greater expertise in treating his 22 impairments – or both. See also Gutierrez., 740 F.3d at 522-23 (scintilla of evidence in the 23 record is not “substantial evidence”); Lingenfelter, 504 F.3d at 1035 (court may not affirm 24 “simply by isolating a specific quantum of supporting evidence”). Rather than reflecting 25 stability, the treating notes indicate that, despite Plaintiff’s compliance with his medication 26 regime, Dr. Scurry routinely observed that Plaintiff’s insight and judgment were “erratic,” 27 and multiple treating sources referred to Plaintiff’s continued struggle with mood, symptoms 28 of PTSD, anxiety, and hypervigilance. Further, within six months of Nurse Beare’s 13 1 assessment, Plaintiff’s treating sources discussed increasing his dosage of sertraline and/or 2 switching him to a different medication, discussions that are at odds with Nurse Beare’s 3 suggestion that Plaintiff experienced long-term stability on sertraline. 4 5 Accordingly, the ALJ’s decision to discount Dr. Abejuela’s opinion in its entirety 6 based on inconsistencies with Plaintiff’s treating records, including his reported stability on 7 sertraline, is not supported by substantial evidence in the record. To the contrary, the 8 treating notes reflect that Plaintiff regularly struggles with, inter alia, his mood, symptoms 9 of PTSD, anxiety, hypervigilance, irritability, and avoidance. These observations would 10 appear to support, rather than contradict, Dr. Abejuela’s assessment of limitations on 11 Plaintiff’s ability to interact appropriately with coworkers and supervisors and work in 12 coordination with others. Notably, these are limitations that the reviewing psychologist, Dr. 13 Brill, also assessed, but the ALJ did not include these limitations in either her assessment of 14 Plaintiff’s RFC or in a hypothetical to the VE. 15 16 3. Inconsistency with Function Report 17 18 Finally, the ALJ discounted Dr. Abejuela’s opinion because it was inconsistent with 19 Plaintiff’s reported activities in his Adult Function Report. (AR 25.) Again, the ALJ’s 20 determination is not fully supported by substantial evidence in the record. 21 22 On September 14, 2014, Plaintiff completed an Adult Function Report in connection 23 with his claim for benefits. (AR 195-203.) Plaintiff stated that his daily activities involved 24 taking care of his 2 year old son – including changing diapers, feeding him, dressing him, 25 and bathing him – watching TV, and running errands. (AR 196.) He stated that he does not 26 spend time with others and the only place he goes on a regular basis, i.e., once every two 27 weeks, is the grocery store. (AR 198, 199.) He stated that he has problems getting along 28 with family, friends, neighbors and others due to “mood swings and paranoia.” (AR 200.) 14 1 He indicated that, before the onset of his impairments, he was very outgoing but is now very 2 introverted. (AR 200.) He stated that he can pay attention for maybe 20 minutes at a time 3 and has difficulty following instructions – “50/50 chance that I can follow spoken 4 instructions.” (AR 200.) He indicated that he is able to pay bills, count change, handle a 5 savings account, and use a checkbook/money orders. (AR 198.) When asked how well he 6 gets along with authority figures, Plaintiff responded, “I don’t at all, part of my PTSD.” (AR 7 201.) When asked if he had ever been fired or laid off from a job due to problems getting 8 along with other people, he answered “Yes,” and indicated that he had lost his job at 9 Walmart for this reason. (AR 201.) Finally, Plaintiff stated that he does not handle stress or 10 changes in routine well. (AR 201.) 11 12 The above statements are consistent with Dr. Abejuela’s assessment that Plaintiff is 13 severely impaired in his ability to, inter alia: respond to coworkers, supervisors, and the 14 public; respond appropriately to usual work situations; and deal with changes in a routine 15 work setting. (AR 406.) However, the ALJ did not assess any limitation on Plaintiff’s 16 ability to engage with coworkers or supervisors or to respond to changes in a work setting. 17 (See generally AR 22.) The ALJ’s decision to discount this portion of Dr. Abejuela’s 18 opinion based on purported inconsistencies with Plaintiff’s statements in the Function Report 19 is not supported by substantial evidence in the record. 20 21 4. Conclusion 22 23 In sum, the Court finds that the ALJ failed to articulate specific, legitimate reasons 24 supported by substantial evidence in the record for discounting Dr. Abejuela’s opinion that 25 Plaintiff is severely limited in his ability to engage with coworkers or supervisors or to 26 respond to changes in a work setting. The Court cannot say on this record that the ALJ’s 27 error was harmless because the VE was not presented with a hypothetical reflecting these 28 limitations. The Court also cannot say that, if the ALJ credited these portions of Dr. 15 1 Abejuela’s opinion, he would be required to find Plaintiff disabled on remand. 2 See Garrison, 759 F.3d at 1020; see also id. n.26. 3 4 Accordingly, the matter must be remanded for further proceedings, and on remand the 5 ALJ must either credit these portions of Dr. Abejuela’s opinion or articulate specific and 6 legitimate reasons supported by substantial evidence for discounting them. Because the ALJ 7 erred with respect to Dr. Abejuela’s opinion, the Court declines to reach the second issue in 8 dispute: whether the ALJ properly considered the opinions, if any, expressed by Dr. Scurry 9 in her undated letter regarding Plaintiff’s request for veteran’s benefits. However, on 10 remand, the ALJ shall comply with the applicable case law and regulations governing 11 consideration of treating physicians’ opinions. 12 RECOMMENDATION 13 14 15 For the reasons stated above, IT IS ORDERED that the decision of the Commissioner 16 is REVERSED, and this case is REMANDED for further proceedings consistent with this 17 Memorandum Opinion and Order. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 20 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for 21 defendant. 22 23 LET JUDGMENT BE ENTERED ACCORDINGLY 24 25 DATED: August 28, 2017 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 26 27 28 16

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