Jacqueline Bentiste v. Nancy A. Berryhill, No. 5:2018cv00104 - Document 23 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. IT IS ORDERED that the decision of the Commissioner is REVERSED AND REMANDED for further administrative proceedings consistent with this Order. [SEE ORDER FOR FURTHER DETAILS]. (et)
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Jacqueline Bentiste v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 JACQUELINE B., 1 Plaintiff, v. ) NO. EDCV 18-0104-KS ) ) ) MEMORANDUM OPINION AND ORDER ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) Defendant. ) _________________________________ ) 11 12 13 14 15 16 17 INTRODUCTION 18 19 20 Plaintiff filed a Complaint on January 17, 2018, seeking review of the denial of her 21 application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security 22 Act. (Dkt. No. 1.) The parties have consented, pursuant to 28 U.S.C. § 636(c), to proceed 23 before the undersigned United States Magistrate Judge. (Dkt. Nos. 11-13.) On September 24 26, 2018, the parties filed a Joint Stipulation. (Dkt. No. 19 (“Joint Stip.”).) Plaintiff seeks an 25 order reversing the Commissioner’s decision and remanding the matter for further 26 proceedings. (Joint Stip. at 18.) The Commissioner requests that the Administrative Law 27 28 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 1 Dockets.Justia.com 1 Judge’s decision be affirmed. (Id.) The Court has taken the matter under submission 2 without oral argument. 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 6 On October 31, 2013, Plaintiff filed an application for SSI.2 (Administrative Record 7 (“AR”) 10, 78, 161-82.) Plaintiff alleged disability commencing on December 5, 2010 due 8 to cervical cancer, COPD, scoliosis, hypertension, asthma, difficulty of swallowing, and 9 vaginal hernia.3 (AR 162.) After the Commissioner denied Plaintiff’s application initially 10 (AR 78) and upon reconsideration (AR 97), Plaintiff requested a hearing (AR 112). 11 12 At a hearing held on September 14, 2016, at which Plaintiff appeared with an attorney 13 representative, an Administrative Law Judge (“ALJ”) heard testimony from Plaintiff and a 14 vocational expert (“VE”). (AR 29-53.) On October 12, 2016, the ALJ issued an unfavorable 15 decision denying Plaintiff’s application for SSI. (AR 12-24.) On November 14, 2017, the 16 Appeals Council denied Plaintiff’s request for review. (AR 3-7.) 17 SUMMARY OF ADMINISTRATIVE DECISION 18 19 20 Applying the five-step sequential evaluation process, the ALJ found at step one that 21 Plaintiff had not engaged in substantial gainful activity since her application date of October 22 31, 2013. (AR 14; 20 C.F.R. § 416.971.) At step two, the ALJ found that Plaintiff had 23 severe impairments consisting of obesity and degenerative disc disease of the lumbar spine 24 25 26 27 28 Plaintiff was 54 years old on the application date and thus met the agency’s definition of a person closely approaching advanced age. See 20 C.F.R. § 416.963(d). (See AR 59.) Plaintiff also applied for Disability Insurance Benefits (“DIB”), but at the initial review and reconsideration stages of her application, she is only listed as having applied for SSI. (AR 154-58, 78, 97.) The ALJ and Plaintiff’s counsel also only refer to her application for SSI. (AR 12-24; Joint Stip. at 2.) 3 Although mental impairments were not listed here, Plaintiff included medications for depression in her medication list and a Consultative Examiner examined Plaintiff for mental impairments prior to the initial review of Plaintiff’s application for SSI. (AR 68, 205.) 2 2 1 but that her seizures, abdominal issues, asthma, COPD, history of cervical cancer, and 2 mental impairment of depression were non-severe. (AR 14-19.) At step three, the ALJ 3 found that Plaintiff did not have an impairment or combination of impairments that met or 4 medically equaled the severity of any impairments listed in 20 C.F.R. part 404, subpart P, 5 appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). 6 determined that Plaintiff had the residual functional capacity (“RFC”) to perform medium 7 work “except frequently bending, kneeling, stooping, crawling and crouching; and climbing 8 ladders, walking on uneven terrain and working at heights frequently.” (AR 19.) The 9 vocational expert (“VE”) classified Plaintiff’s past work as a home attendant. (AR 52.) At 10 step four, the ALJ found, based on the Dictionary of Occupational Titles (“DOT”), that 11 Plaintiff could perform her past relevant work as a home attendant. (AR 23.) The ALJ did 12 not reach step five. Accordingly, the ALJ concluded that Plaintiff was not disabled within 13 the meaning of the Social Security Act. (AR 23-24.) (AR 19.) The ALJ then 14 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 18 determine whether it is free from legal error and supported by substantial evidence in the 19 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 20 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of 22 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (citations omitted). “Even when the 23 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 24 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 25 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted). 26 27 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 28 nonetheless must review the record as a whole, “weighing both the evidence that supports 3 1 and the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter v. Astrue, 2 504 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted); Desrosiers v. Sec’y of Health & 3 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). “The ALJ is responsible 4 for determining credibility, resolving conflicts in medical testimony, and for resolving 5 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citation omitted). 6 7 The Court will uphold the Commissioner’s decision when the evidence is susceptible 8 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 9 2005) (citation omitted). However, the Court may review only the reasons stated by the ALJ 10 in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 11 495 F.3d at 630 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). The Court 12 will not reverse the Commissioner’s decision if it is based on harmless error, which exists if 13 the error is “‘inconsequential to the ultimate nondisability determination,’ or that, despite the 14 legal error, ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 15 F.3d 487, 492 (9th Cir. 2015) (citations omitted). 16 DISCUSSION 17 18 19 The parties raise one issue: whether the ALJ erred in finding Plaintiff did not have any 20 severe mental impairments. (Joint Stip. at 4.) For the reasons discussed below, the Court 21 concludes that this issue warrants reversal of the ALJ’s decision. 22 23 I. The ALJ Erred in Finding Plaintiff’s Mental Impairments Were Non-Severe 24 25 A. Facts 26 27 Plaintiff reported that she last worked in 2005 from July through December as a 28 caregiver to her mother. (AR 194-95.) Plaintiff also reported that she last worked on 4 1 December 5, 2010 as a caregiver to her mother. (AR 203.) December 5, 2010 is her alleged 2 onset date of disability because of her conditions. (AR 203; AR 162.) Plaintiff’s earnings 3 records show income from self-employment in 2005 and non-covered earnings of less than 4 one thousand dollars labeled “IHSS Recipients” in 2009, but no income in 2010. (AR 184- 5 88.) When specifically questioned by the ALJ about her work in 2005, Plaintiff testified she 6 was working as a caregiver “for my mother and she passed.” (AR 33-34.) However, 7 Plaintiff also testified her mother passed away in 2010. (AR 35; see also 365.) Plaintiff 8 reported being fired or laid off from her job as a caregiver because of problems getting along 9 with other people. (AR 217.) Her explanation of this occurrence was “ratial slurr.” (AR 217 (errors in original).) 10 11 12 Plaintiff said she is five feet four and a half inches tall and weighs 280 pounds. (AR 13 35.) She said a normal weight for her is 165 pounds, but she started putting on weight when 14 she got sick after her mother died.4 (AR 35.) Plaintiff testified her emotional problems 15 began on December 5, 2010, after her mom passed away. (AR 35-36.) She said she “just 16 collapsed and things started going downhill.” (AR 36.) She said she got past the “grieving 17 and emotional type problems” but she still has “emotional type problems.” (AR 36.) She 18 said she was “seeing a Dr. Yama [phonetic]” for treatment. (AR 36.) That appears to be the 19 extent of the testimony concerning her depression.5 She also testified she does not sleep 20 well. (AR 47.) When asked what keeps her awake at night, she answered: “I walk the 21 floors. I check on my animals and I walk the floors, make sure they happy. I love animals.” 22 (AR 47 (error in original).) She also testified about her other medical conditions including 23 seizures. (See generally AR 31-53.) 24 // 25 // 26 27 28 In August 2011, she weighed 178.8 pounds. (AR 333.) In September 2012, she weighed 194 pounds. (AR 32021.) In December 2013, she weighed 188 pounds. (AR 328.) In November 2015, she weighed 214.6 pounds. (AR 424.) 5 Page 23 of the transcript of the ALJ Hearing is missing from the record. (See AR 50-51.) 4 5 1 Plaintiff listed taking medication for asthma, heart, stool softener, pain, depression, 2 high blood pressure, and stomach ulcers. (AR 205.) She completed an Adult Function 3 Report on December 26, 2013 and reported that she lives in a trailer by herself. (AR 211- 4 218.) She later testified she lives in a home with two other people. (AR 32-33.) She wrote 5 that her daily activities include watching television for an hour, eating but she rarely has an 6 appetite, seeing her pets, but mostly staying in her room all day. (AR 211.) She states she 7 does not go out alone because she has had black-outs and seizures, so she feels safer if 8 someone is with her. (AR 214.) She reports that she is able to pay bills, handle a savings 9 account, count change, and use a checkbook and money orders. (AR 214.) However, she 10 also indicated that her ability to handle money has changed in that she loses or misplaces 11 money frequently. (AR 215.) For social activities, she states she mostly stays home but she 12 is “open” to others visiting her and her children and grandchildren come see her every other 13 weekend and on holidays. (AR 215-16.) She reported she was prescribed a walker in 2010. 14 (AR 217.) She reported taking medications for pain which cause dizziness as a side effect. 15 (AR 220.) A month later, she reported her pain medications also cause drowsiness, nausea, 16 anxiety, panic, fear, and hallucinations. (AR 225.) 17 18 On a questionnaire dated July 23, 2014, she reported having seizures that started seven 19 years ago, occur randomly, and last approximately forty-five minutes. (AR 243-45.) She 20 reported her last three seizures occurred two months, three and half months, and five months 21 prior. (AR 243.) However, she reported she had only been on medication for seizures, 22 levetiracetam, for three months. (AR 244.) She testified her doctor did not believe her until 23 other people started witnessing her seizures and taking her to the hospital. (AR 40-41.) 24 25 On December 24, 2014, Plaintiff completed another Adult Function Report. (AR 261- 26 68.) In describing her daily activities, Plaintiff wrote: “Argue with everyone because I hear 27 them whispering plotting on me. And feed my dogs & play with them because they are the 28 only ones who love me and don’t whisper about me.” (AR 261 (errors in original).) When 6 1 asked if her conditions affect her sleep, she said: “I am afraid the demons will kill me in my 2 sleep.” (AR 262.) She wrote she does not do yard work because: “I’m afraid of outdoors in 3 case of fire or getting hit or robbed or bears or bobcats.” (AR 264.) In relation to social 4 changes resulting from her conditions, she stated: “I don’t know they just started hating and 5 plotting to hurt me.” (AR 266.) 6 7 Plaintiff’s record includes medical records from Dr. I-Hsiung Chen, M.D. dated 8 between August 27, 2011 and December 18, 2013. (AR 327-54.) Her chronic problems 9 include: angina, lumbago, COPD [chronic obstructive pulmonary disease], esophageal 10 reflux, gouty arthropathy, hypertension, depressive disorder other, and neurogenic bladder 11 other. (AR 328.) Her past medical and surgical history include: angina, cervical cancer, 12 COPD, depression, abdominal hernia surgery repair in 2013, hypertension, and migraine 13 headaches. 14 Trazodone and Lexapro.6 (AR 331.) (AR 328.) Her active medication list as of December 18, 2013 included 15 16 Plaintiff was admitted to the Hemet Valley Medical Center on August 25, 2011 for a 17 syncopal episode. (AR 332.) She was discharged the same day. (AR 335.) Dr. Chen was 18 copied on the medical report. (AR 332-36.) Dr. Chen referred Plaintiff to Dr. Ashok 19 Agarwal, M.D., F.A.C.C.7, for a consultation on dizziness following her syncopal episode in 20 August. (See AR 344-45.) Dr. Agarwal noted a history of depression. (AR 344.) 21 22 On February 27, 2014, Board Certified Internal Medicine Doctor Robert Nguyen 23 completed an internal medicine consultative examination of Plaintiff. (AR 357-63.) Dr. 24 Nguyen noted Plaintiff had a seizure episode a few days prior to her consultative 25 examination that resulted in her being taken to the Emergency Room. (AR 358.) Plaintiff 26 27 28 Trazadone treats major depressive disorder. See https://www.drugs.com/trazodone.html (last visited April 10, 2019). Lexapro treats anxiety and major depressive disorder. See https://www.drugs.com/lexapro.html (last visited April 10, 2019). 7 Fellow, American College of Cardiology. (AR 345.) 6 7 1 fell during the seizure, causing some swelling and a slight limp in her left leg. (AR 358, 2 360.) Dr. Nguyen also noted a history of depression. (AR 358.) 3 B. 4 Consultative Examining Psychiatrist’s Medical Opinion 5 6 On April 7, 2014, Dr. Oluwafemi Adeyemo, M.D., performed a consultative 7 psychiatric examination of Plaintiff. (AR 364-67.) Plaintiff reported a ten-year history of 8 depression and that her treatment had been with her primary care physician, Dr. I. Chen. 9 (AR 364.) She said, “I hear voices all the time. I hear demons. I hear someone calling my 10 name and when I look, there is nobody there. I see shadows. I see people coming towards 11 me. I fear that people will hurt me.” (AR 364.) Dr. Adeyemo characterized Plaintiff’s 12 symptoms to include “depressed mood, irritability, social isolation, poor energy, poor 13 appetite, weight loss, anhedonia and excessive sleep” along with “auditory hallucinations, 14 visual hallucinations and paranoid delusions.” (AR 364.) Plaintiff’s current medications 15 were noted to be Sertraline, Zolpidem, Alprazolam, and Abilify. (AR 365.) Plaintiff said 16 she completed high school and was in special education classes. (AR 365.) Her work 17 history included that she was a caregiver to her mother and her aunt for eight years. (AR 18 365.) Plaintiff reported using crack cocaine for fifteen years and that she had last used in 19 1977.8 (AR 365.) Plaintiff identified the death of her mother in 2010 to be her main 20 stressor. (AR 365.) 21 22 Dr. Adeyemo observed Plaintiff to be “casually groomed… alert and oriented to self, 23 place and partly to date.”9 (AR 366.) Her speech was normal, she denied suicidal or 24 homicidal thoughts, her immediate recall was three out of three, her recall after five minutes 25 was zero out of three “even with prompting,” and her insight and judgment were fair. (AR 26 366.) Dr. Adeyemo wrote Plaintiff “was noted to be depressed with mood congruent affect.” 27 28 8 9 Plaintiff was eighteen years old in 1977. (See AR 364.) Plaintiff said the date was April 6, 2012 when it was really April 7, 2014. (AR 366.) 8 1 (AR 366.) Plaintiff’s “BDI II score was 35 which is reflective of clinically significant 2 depressive symptoms.” (AR 364.) 3 4 Dr. Adeyemo diagnosed Plaintiff with Schizoaffective Disorder (Depressive Type), 5 Rule Out Major Depressive Disorder, Recurrent, Severe with Psychotic Features, and Rule 6 Out Schizophrenia (Paranoid Type). (AR 366.) Dr. Adeyemo also found Plaintiff had 7 Cluster A Personality Traits and a GAF score of 58.10 (AR 366.) Dr. Adeyemo identified 8 financial constraints, the death of her mother, and multiple medical problems to be problems 9 affecting Plaintiff’s diagnosis but found Plaintiff was capable of managing her finances. 10 (AR 366.) Dr. Adeyemo found Plaintiff would have moderate limitations in daily activities, 11 social functioning, concentration, persistence, pace, responding appropriately to co-workers 12 and supervisors, responding appropriately to the public, responding appropriately to work 13 situations including attendance and safety issues, and dealing with changes in a routine work 14 setting. (AR 367.) Plaintiff would have mild to moderate limitations retaining and executing 15 simple instructions consistently. (AR 367.) Dr. Adeyemo did not observe bizarre behavior 16 from Plaintiff during the evaluation. (AR 367.) 17 // 18 // 19 // 20 // 21 22 23 24 25 26 27 28 “GAF” refers to Global Assessment of Functioning. See Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (“DSM IV”). A score of 51 to 60 signifies “moderate” symptoms, such as flat affect or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as having few friends or conflicts with peers or co-workers. Id. A score in the range of 61 through 70 denotes some “mild” symptoms, such as depressed mood or mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy or theft within the household, but indicate that the subject is generally functioning pretty well and has some meaningful interpersonal relationships. Id. GAF scores have been described as a “rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n. 2 (9th Cir. 1998) (citation omitted). However, pursuant to Agency regulations, the GAF scale has no “direct correlation to the severity of requirements in Social Security Administration mental disorder listings.” See 65 Fed. Reg. 50746, 50764-6. “The DSM V no longer recommends using GAF scores to measure mental health disorders because of their ‘conceptual lack of clarity . . . and questionable psychometrics in routine practice.’” Olsen v. Comm’r Soc. Sec. Admin., 2016 WL 4770038, at *4 (D. Or. Sept. 12, 2016) (quoting DSM-V, 16 (5th ed. 2013)). 10 9 1 C. State Agency Doctors’ Psychiatric Medical Opinions 2 3 Dr. Cal VanderPlate, Ph.D., ABPP, reviewed Plaintiff’s application at the initial level 4 on April 25, 2014. (AR 59-77.) Dr. VanderPlate diagnosed Plaintiff with severe affective 5 disorder. (AR 69.) He did not find Plaintiff’s allegations of hallucinations to be credible or 6 schizophrenia to be supported by Plaintiff’s medical history, but he otherwise gave great 7 weight to Dr. Adeyemo’s opinion. (AR 69.) He opined Plaintiff’s RFC included moderate 8 limitations in understanding and remembering detailed instructions, carrying out detailed 9 instructions, maintaining attention and concentration for extended periods of time, 10 completing a normal workday and workweek without interruptions and performing at a 11 consistent pace without an unreasonable number and length of rest periods, interacting 12 appropriately with the public, and accepting instructions and responding appropriately to 13 criticism from supervisors. (AR 73-74.) He found Plaintiff was otherwise not significantly 14 limited. (AR 73-74.) 15 16 Dr. Rosalia Pereyra, Psy.D., reviewed Plaintiff’s application at the reconsideration 17 level on October 7, 2014. (AR 79-96.) Dr. Pereyra also diagnosed Plaintiff with severe 18 affective disorder. (AR 88.) Her assessment of Plaintiff’s mental impairments and RFC was 19 largely the same as Dr. VanderPlate’s. (AR 92-94.) 20 21 D. Applicable Law 22 23 The Commissioner defines a severe impairment as “[a]n impairment or combination of 24 impairments . . . [that] significantly limit[s] your physical or mental ability to do basic work 25 activities,” including, inter alia: “understanding, carrying out, and remembering simple 26 instructions; use of judgment; responding appropriately to supervision, co-workers and usual 27 work situations; and dealing with changes in a routine work setting.” 20 C.F.R. § 416.921. 28 “An impairment or combination of impairments may be found not severe only if the 10 1 evidence establishes a slight abnormality that has no more than a minimal effect on an 2 individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citations 3 omitted). Plaintiff bears the burden of proof at step two. See Bustamante v. Massanari, 262 4 F.3d 949, 953-54 (9th Cir. 2001) (citation omitted). If “an adjudicator is unable to determine 5 clearly the effect of an impairment or combination of impairments on the individual’s ability 6 to do basic work activities, the sequential evaluation should not end with the not severe 7 evaluation step.” Id. at 687 (citation omitted). “Step two, then, is a de minimis screening 8 device [used] to dispose of groundless claims, and an ALJ may find that a claimant lacks a 9 medically severe impairment or combination of impairments only when his conclusion is 10 clearly established by medical evidence.” Id. (emphasis added) (citations omitted). 11 12 Finally, an ALJ is required to consider all of the limitations imposed by a claimant’s 13 limitations, even those that are not severe. Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1164 14 (9th Cir. 2008). 15 significantly limit an individual’s ability to do basic work activities, it may – when 16 considered with limitations or restrictions due to other impairments – be critical to the 17 outcome of a claim.’” Id. (quoting Social Security Ruling 96–8p (1996)). “Even though a non-severe ‘impairment standing alone may not 18 19 E. Analysis 20 21 After summarizing Plaintiff’s medical record, the ALJ found Plaintiff’s mental 22 impairments were non-severe. (AR 17.) The ALJ gave little weight to the psychiatric CE 23 and state agency doctor medical opinions. (AR 17-19.) 24 25 There are three categories of physicians: treating physicians, examining physicians, 26 and nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see 20 27 28 11 1 C.F.R. 416.927.11 Treating physician opinions should be given more weight than examining 2 or nonexamining physician opinions. Orn, 495 F.3d at 632. This is because a treating 3 physician “is employed to cure and has a greater opportunity to know and observe the patient 4 as an individual.” 5 omitted). If the treating physician’s opinion is not contradicted by another doctor, it may be 6 rejected only if the ALJ provides “clear and convincing reasons supported by substantial 7 evidence in the record.” Orn, 495 F.3d at 632. If the treating physician’s opinion is 8 contradicted by another doctor, it may be rejected only by “specific and legitimate reasons 9 supported by substantial evidence in the record.” Id. Similarly, an ALJ must satisfy the 10 clear and convincing reasons standard to reject an uncontradicted examining physician’s 11 opinion or satisfy the specific and legitimate reasons standard to reject a contradicted 12 examining physician’s opinion. Carmickle, 533 F.3d at 1164. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation 13 14 All three of the physicians that provided psychiatric medical opinions in this case 15 agree that Plaintiff has a mental impairment that is severe. (AR 59-77, 79-96, 364-67.) 16 Because none of the opinions contradict each other concerning whether Plaintiff’s mental 17 impairment is severe, the ALJ needed to provided clear and convincing reasons to reject this 18 opinion. Id. 19 20 The ALJ rejected Dr. Adeyemo’s medical opinion because it was based on Plaintiff’s 21 “self-reported symptoms,” was not consistent with the mental status examination, was not 22 consistent with Plaintiff’s medical record treatment notes, and was based on one 23 examination. (AR 17-18.) The ALJ also rejected Dr. Adeyemo’s findings concerning 24 Plaintiff’s BDI II score because it was based on “self-reported symptoms” and Plaintiff’s 25 26 27 28 Effective March 27, 2017, the Social Security Administration revised its regulations directing the evaluation of medical opinion evidence, including 20 C.F.R § 416.927. But these revisions are not applicable or relevant to the analysis here relating to Plaintiff’s October 31, 2013 application for SSI benefits. 11 12 1 GAF score because it only serves as a “snapshot” of Plaintiff’s behavioral status but not a 2 functional capacity analysis. (AR 17-18.) 3 4 The ALJ’s first reason for rejecting Dr. Adeyemo’s medical opinion was that it relied 5 too heavily on Plaintiff’s subjective complaints. (AR 17.) An ALJ may reject a medical 6 opinion if it is “based to a large extent on [a plaintiff’s] self-reports” rather than clinical 7 evidence and the ALJ also rejects the plaintiff’s credibility. Ghanim v. Colvin, 763 F.3d 8 1154, 1162 (9th Cir. 2014) (citation omitted). 9 convincing reasons for rejecting an examining physician’s opinion by questioning the 10 credibility of the patient’s complaints where the doctor does not discredit those complaints 11 and supports his ultimate opinion with his own observations.” Ryan v. Comm’r of Soc. Sec., 12 528 F.3d 1194, 1199-2000 (9th Cir. 2008) (citation omitted). 13 diagnoses based on clinical observations are acceptable forms of evidence that can show 14 mental disability. 15 Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). Dr. Adeyemo included Plaintiff’s statements 16 in the CE report but did not include any indication that Plaintiff lied about her symptoms or 17 that there was reason to question her veracity. Dr. Adeyemo observed Plaintiff in a clinical 18 setting, conducted a mental status examination, and utilized mental health assessment tools, 19 namely the BDI II and GAF score. Dr. Adeyemo did not state or indicate that Plaintiff’s 20 diagnosis was based more heavily on Plaintiff’s statements than on clinical observations. 21 The ALJ does not support his finding that Dr. Adeyemo’s opinion is primarily based on 22 Plaintiff’s statements and substantial evidence does not support it either.12 Thus, this is not a 23 clear and convincing reason to reject the examining physician’s medical opinion. “[A]n ALJ does not provide clear and Medical opinions and Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987); Bilby v. 24 25 26 The second reason the ALJ gave for rejecting Dr. Adeyemo’s medical opinion was that it was inconsistent with Dr. Adeyemo’s mental status examination of Plaintiff. (AR 17-18.) 27 28 To the extent the ALJ rejects Dr. Adeyemo’s medical opinion because he rejects Plaintiff’s BDI II score, the same reasoning applies. 12 13 1 To say that medical opinions are not supported by sufficient objective 2 findings or are contrary to the preponderant conclusions mandated by the 3 objective findings does not achieve the level of specificity our prior cases 4 have required, even when the objective factors are listed seriatim. The ALJ 5 must do more than offer his conclusions. 6 interpretations and explain why they, rather than the doctors’, are correct. He must set forth his own 7 8 Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The ALJ listed the findings included 9 in Dr. Adeyemo’s mental status examination of Plaintiff but he provides no explanation or 10 interpretation to support his conclusion that Dr. Adeyemo’s diagnosis is inconsistent with the 11 mental status examination. (AR 17-18.) Accordingly, this is not a clear and convincing 12 reason to reject the doctor’s medical opinion. 13 14 The ALJ’s third reason for rejecting Dr. Adeyemo’s medical opinion was that it was 15 inconsistent with Plaintiff’s treatment notes. (AR 18.) The ALJ then cited to five medical 16 records in which Plaintiff was noted to have a normal mood, some noted no suicidal or 17 homicidal ideations, and one noted no hallucinations. (AR 18.) But as Plaintiff points out, 18 these records are Emergency Room records. (Joint Stip. at 8; AR 18, 375-419.) These 19 records reflect Plaintiff seeking treatment for dizziness and bruising on her belly, abdominal 20 pain, medication refills, and ear pain. (AR 376-78, 381-83, 389-91, 393-95, 397-99.) What 21 the ALJ did not mention is that all five records reflect Plaintiff’s medications included 22 Escitalopram and Trazodone, medications that treat depression.13 (See id.) Because Plaintiff 23 was not seeking mental health treatment in these instances but was on medications for mental 24 health, these records do not provide an accurate picture of the severity of Plaintiff’s mental 25 26 27 28 Escitalopram, the generic name for Lexapro, treats anxiety and major depressive disorder. See https://www.drugs.com/escitalopram.html (last visited April 10, 2019). Trazodone treats major depressive disorder. See https://www.drugs.com/trazodone.html (last visited April 10, 2019). 13 14 1 health impairment. The ALJ then characterized Plaintiff’s mental health treatment to be 2 essentially nonexistent: 3 4 The only treatment for the claimant’s mental issues is the claimant’s 5 psychiatric consultative examination…. The claimant has not produced any 6 mental health treatment records. Although the claimant reports that she has 7 been treated for depression by her primary care physician for the past 10 8 years, the claimant’s medical records do not establish much, if any specific, 9 treatment for depression. 10 11 (AR 17-18.) Plaintiff’s primary physician medical records reflect she has chronic depressive 12 disorder and prescriptions for depression medication (AR 328, 331), but depression is only 13 noted a few times (AR 332, 344, 350; see generally AR 327-54). While the ALJ is correct 14 that Plaintiff’s treatment records are sparse, they nonetheless show she was diagnosed with a 15 depressive disorder and that she was treated with a number of prescription medications 16 specifically to treat depression. Therefore, Dr. Adeyemo’s diagnosis of a severe mental 17 impairment is not inconsistent with Plaintiff’s treatment records and this is not a clear and 18 convincing reason to reject the medical opinion. 19 20 The fourth reason the ALJ relied on, that Dr. Adeyemo only examined Plaintiff once, 21 is not a clear and convincing reason to reject an examining physician’s medical opinion. 22 Unless a treating physician’s medical opinion is given controlling weight, all medical 23 opinions are weighed according to six factors. 20 C.F.R. § 416.927(c). The factors are: (1) 24 has the source examined Plaintiff; (2) the length, frequency, nature, and extent of the 25 treatment relationship; (3) how well is the opinion supported by relevant evidence; (4) how 26 consistent is the opinion with the record; (5) is the source a specialist; and (6) any other 27 factors. 20 C.F.R. § 416.927(c)(1)-(6). Consultative examinations are sought and paid for 28 by the Social Security Administration (“SSA”). 20 C.F.R. § 416.919. To reject a CE’s 15 1 medical opinion because the SSA only requested and paid the CE to examine a plaintiff once 2 would be contrary to the factors used to weigh medical opinions and contrary to the SSA’s 3 use of consultative examinations generally.14 The fact that Dr. Adeyemo examined Plaintiff 4 once is only one factor to consider. Other factors that weigh in favor of accepting Dr. 5 Adeyemo’s medical opinion include that Dr. Adeyemo did examine Plaintiff, administered 6 health assessment tools the results of which were consistent with a severe mental 7 impairment15, the medical opinion was consistent with Plaintiff’s primary care physician’s 8 diagnosis of a mental impairment and prescriptions for depression medication, and Dr. 9 Adeyemo is a specialist. (See AR 364-67; 20 C.F.R. § 416.927(c)(1)-(6).) Accordingly, the 10 fact that Dr. Adeyemo, a consultative examiner, only examined Plaintiff once is not a clear 11 and convincing reason to reject the doctor’s opinion. 12 13 None of the reasons relied on by the ALJ satisfy the clear and convincing standard for 14 rejecting the uncontradicted opinion of the examining physician. Because there are three 15 doctors who agree that Plaintiff has a severe mental impairment and none of the ALJ’s 16 reasons for rejecting the examining physician’s opinion are legally sufficient, Plaintiff has 17 provided sufficient evidence to satisfy Step Two’s de minimis standard for establishing a 18 severe impairment. See Webb, 433 F.3d at 687 (citation omitted). It was therefore legal 19 error for the ALJ to find Plaintiff not disabled based on the determination of no severe 20 mental impairment at Step Two. The error was not harmless because it affects the ultimate 21 question of disability. Brown-Hunter, 806 F.3d at 494. Accordingly, remand is warranted 22 23 24 25 26 27 28 It would also, by logical extension, create problems with the legitimacy of the SSA using non-examining physicians, which is the case at the initial and reconsideration levels of a disability application as well as during ALJ hearings when medical experts are called to testify. It is worth noting that the ALJ in this case did not rely on the fact that the state agency physicians at the initial and reconsideration levels never examined Plaintiff when he rejected their medical opinions as to the severity of her mental impairments. (See AR 18.) 15 The ALJ’s rejection of Dr. Adeyemo’s assessment of Plaintiff’s GAF score is not a clear and convincing reason to reject the opinion overall either. While the GAF score is not binding on the ALJ (see 65 Fed. Reg. 50746, 50764-6), the rejection of it simply because it is a “snapshot” does not undermine Dr. Adeyemo’s medical opinion. See Bilby, 762 F.2d at 719 (“[D]isability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings.” (quoting Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975))). 14 16 1 and the ALJ is directed to continue the sequential analysis of whether Plaintiff is disabled. 2 See Webb, 433 F.3d at 688 (citation omitted). 3 CONCLUSION 4 5 6 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the 7 Commissioner is REVERSED AND REMANDED for further administrative proceedings 8 consistent with this Order. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 11 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and counsel for 12 defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATE: April 10, 2019 17 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 17
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