Carter v. Commissioner of Social Security, No. 4:2018cv05013 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER Granting, in Part, 14 Plaintiff's Motion for Summary Judgment and Remanding for Additional Proceedings; denying 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Carter v. Commissioner of Social Security Doc. 17 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Jan 28, 2019 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 NICOLE C., No. 4:18-CV-5013-JTR Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 14, 15. Attorney Chad Hatfield represents Nicole C. (Plaintiff); Special 16 Assistant United States Attorney Justin L. Martin represents the Commissioner of 17 Social Security (Defendant). The parties have consented to proceed before a 18 magistrate judge. ECF No. 6. After reviewing the administrative record and the 19 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 20 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 21 REMANDS the matter to the Commissioner for additional proceedings pursuant to 22 42 U.S.C. § 405(g). 23 JURISDICTION 24 Plaintiff filed applications for Disability Insurance Benefits and 25 Supplemental Security Income alleging disability since May 1, 2012, due to 26 depression, PTSD and anxiety. Tr. 260, 267, 346. The applications were denied 27 initially and upon reconsideration. Administrative Law Judge (ALJ) M. J. Adams 28 held a hearing on November 8, 2016, Tr. 44-72, and issued an unfavorable decision ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 on December 2, 2016, Tr. 23-37. The Appeals Council denied Plaintiff’s request 2 for review on November 24, 2017. Tr. 1-6. The ALJ’s December 2016 decision 3 thus became the final decision of the Commissioner, which is appealable to the 4 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 5 review on January 23, 2018. ECF No. 1. 6 7 STATEMENT OF FACTS Plaintiff was born on January 23, 1980, and was 32 years old on the alleged 8 onset date, May 1, 2012. Tr. 49, 260. Plaintiff completed school through the tenth 9 grade in 1998. Tr. 49, 347, 470. Plaintiff’s disability report indicates she stopped 10 working on May 1, 2012, because of her conditions. Tr. 346. Plaintiff testified at 11 the administrative hearing she was unable to work due to worsening symptoms 12 caused by her schizophrenia, PTSD, anxiety and depression. Tr. 50. Plaintiff 13 described symptoms of auditory and visual hallucinations, memory issues, 14 paranoia, talking to herself, and difficulty with focus. Tr. 49-54. She additionally 15 stated she had nightmares and flashbacks of past abuse. Tr. 56-57. She indicated 16 she had some “better days,” but her paranoia was constant. Tr. 55. 17 Plaintiff reported to a medical provider that she used methamphetamine 18 from the age of 16 to the age of 25. Tr. 470. Plaintiff testified she relapsed on 19 alcohol and methamphetamine at the end of 2012. Tr. 58-59. She claimed it was a 20 one-time relapse that resulted in a DUI charge, and she has had no further 21 problems. Tr. 59-60. It appears her legal issues related to the DUI were resolved 22 in 2014. Tr. 64-65. After wrapping up these legal issues in 2014, she went to 23 Disneyland with her sister and two older daughters. Tr. 66. 24 25 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 28 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 2 only if it is not supported by substantial evidence or if it is based on legal error. 3 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 4 defined as being more than a mere scintilla, but less than a preponderance. Id. at 5 1098. Put another way, substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson v. 7 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 8 rational interpretation, the Court may not substitute its judgment for that of the 9 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 10 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 11 administrative findings, or if conflicting evidence supports a finding of either 12 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 13 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 14 supported by substantial evidence will be set aside if the proper legal standards 15 were not applied in weighing the evidence and making the decision. Brawner v. 16 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 21 four, the burden of proof rests upon the claimant to establish a prima facie case of 22 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 23 met once a claimant establishes that a physical or mental impairment prevents the 24 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 25 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 26 to step five, and the burden shifts to the Commissioner to show that (1) the 27 claimant can make an adjustment to other work; and (2) specific jobs exist in the 28 national economy which claimant can perform. Batson v. Commissioner of Social ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 2 adjustment to other work in the national economy, a finding of “disabled” is made. 3 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 5 6 7 8 9 ADMINISTRATIVE DECISION On December 2, 2016, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since May 1, 2012, the alleged onset date. Tr. 25. At step two, the ALJ determined Plaintiff had the following severe 10 impairments: affective disorder (bipolar disorder vs. depressive disorder); anxiety 11 disorder (post-traumatic stress disorder); personality disorder; alcohol abuse 12 disorder; and substance abuse disorder. Tr. 26. 13 At step three, the ALJ found Plaintiff did not have an impairment or 14 combination of impairments that meets or medically equals the severity of one of 15 the listed impairments. Tr. 26. 16 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 17 Plaintiff could perform a full range of work at all exertional levels, but with the 18 following nonexertional limitations: she can understand, remember and carry out 19 simple instructions; she can make judgments commensurate with the functions of 20 unskilled work, i.e. work that needs little or no judgment to do simple duties, can 21 learn to do the job in thirty days, and little specific vocational preparation and 22 judgment; she can respond appropriately to supervision but should not be required 23 to work in close coordination with coworkers where teamwork is required; she can 24 deal with occasional changes in the work environment; and she can do work that 25 requires no contact with the general public to perform the work tasks. Tr. 28. 26 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 35, 50. 27 At step five, the ALJ determined that, based on the testimony of the 28 vocational expert, and considering Plaintiff’s age, education, work experience and ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 RFC, Plaintiff was capable of making a successful adjustment to other work that 2 exists in significant numbers in the national economy, including the jobs of laundry 3 worker, kitchen helper and lab assistant. Tr. 36. The ALJ thus concluded Plaintiff was not under a disability within the 4 5 meaning of the Social Security Act at any time from May 1, 2012, the alleged 6 onset date, through the date of the ALJ’s decision, December 2, 2016. Tr. 36-37. ISSUES 7 The question presented is whether substantial evidence supports the ALJ’s 8 9 10 decision denying benefits and, if so, whether that decision is based on proper legal standards. Plaintiff contends the ALJ erred in this case by (1) improperly rejecting the 11 12 opinions of Plaintiff’s medical providers; (2) improperly rejecting Plaintiff’s severe 13 impairments at step two; (3) improperly failing to find Plaintiff’s impairments meet 14 or equal a Listing at step three; (4) rejecting lay witness testimony; (5) rejecting 15 Plaintiff’s subjective complaints; and (6) failing to meet his step five burden. ECF 16 No. 14 at 4-5. DISCUSSION1 17 18 19 20 A. Medical Opinion Evidence Plaintiff contends the ALJ erred by rejecting the opinions of her medical providers. ECF No. 14 at 7-11. Plaintiff specifically asserts the ALJ erred by 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 according “little weight” to the reports of medical professionals Jan M. Kouzes, 2 Ed.D., Benjamin Gonzalez, M.D., and Wayne Dees, Psy.D. Id. 3 In a disability proceeding, the courts distinguish among the opinions of three 4 types of acceptable medical sources: treating physicians, physicians who examine 5 but do not treat the claimant (examining physicians) and those who neither 6 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 7 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 8 than an examining physician’s opinion, and an examining physician’s opinion is 9 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 10 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Ninth Circuit has 11 held that “[t]he opinion of a nonexamining physician cannot by itself constitute 12 substantial evidence that justifies the rejection of the opinion of either an 13 examining physician or a treating physician.” Lester, 81 F.3d at 830; Pitzer v. 14 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (finding a nonexamining doctor’s 15 opinion “with nothing more” does not constitute substantial evidence). In making findings regarding the medical opinion evidence of record, the 16 17 ALJ must set forth specific, legitimate reasons that are based on substantial 18 evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 19 Moreover, the ALJ is required to set forth the reasoning behind his or her decisions 20 in a way that allows for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 21 487, 492 (9th Cir. 2015) (finding a clear statement of the agency’s reasoning is 22 necessary because the Court can affirm the ALJ’s decision to deny benefits only on 23 the grounds invoked by the ALJ). “Although the ALJ’s analysis need not be 24 extensive, the ALJ must provide some reasoning in order for us to meaningfully 25 determine whether the ALJ’s conclusions were supported by substantial evidence.” 26 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 1. Drs. Kouzes and Gonzalez 2 Dr. Kouzes completed a Department of Social and Health Services (DSHS) 3 Psychological/Psychiatric evaluation of Plaintiff on May 23, 2014. Tr. 469-472. 4 Dr. Kouzes diagnosed Bipolar I Disorder, most recent episode mixed, moderate by 5 history; and Personality Disorder, Not Otherwise Specified, Borderline Features. 6 Tr. 471. Dr. Kouzes opined that Plaintiff had “marked” restrictions in her abilities 7 to understand, remember, and persist in tasks by following detailed instructions; 8 perform activities within a schedule, maintain regular attendance, and be punctual 9 within customary tolerances without special supervision; communicate and 10 perform effectively in a work setting; and complete a normal work day and work 11 week without interruptions from psychologically based symptoms. Tr. 471-472. 12 Dr. Kouzes also noted several moderate limitations. Id. 13 Dr. Gonzalez, Plaintiff’s treating physician, filled out a Mental Residual 14 Functional Capacity Assessment form on October 14, 2015. Tr. 635-638. Dr. 15 Gonzalez indicated Plaintiff was either markedly limited or severely limited in 16 nearly all areas of mental functioning. Tr. 635-636. Dr. Gonzalez further noted 17 that Plaintiff was extremely limited with respect to difficulties in maintaining 18 social functioning and difficulties in maintaining concentration, persistence or 19 pace. Tr. 637. He opined Plaintiff would likely be off-task over 30% of the time 20 during a 40-hour work-week and would likely miss four or more days per month if 21 attempting to work a 40-hour work-week. Tr. 637. The ALJ accorded “little weight” to the limitations noted by Dr. Kouzes on 22 23 examination and the opinions expressed by treating physician Gonzalez. Tr. 33. 24 The ALJ indicated the opinions were not consistent with the overall evidence 25 which showed Plaintiff had generally benign examination findings, performed a 26 number of activities of daily living despite the reported symptoms, and had 27 improvement of symptoms with medication. Tr. 34. Defendant argues the 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 forgoing rationale provided by the ALJ for rejecting the opinions of these medical 2 professionals is fully supported. ECF No. 15 at 10-13. The Court does not agree. 3 First, the Court finds the opinions of Drs. Kouzes and Gonzalez are not 4 unsupported by the overall evidence of record. Dr. Kouzes’ examination revealed 5 several symptoms that supported the limitations assessed by the medical 6 professional. Tr. 470, 473. Treating physician Gonzalez has additionally noted 7 Plaintiff’s symptoms throughout the record which are fairly consistent with the 8 opinion he expressed on October 14, 2015. See Tr. 535, 543, 546, 550-551, 571- 9 572. The only medical opinion evidence of record which contradicts the opinions 10 of Drs. Kouzes and Gonzalez is provided by state agency reviewing physicians, 11 and “[t]he opinion of a nonexamining physician cannot by itself constitute 12 substantial evidence that justifies the rejection of the opinion of either an 13 examining physician or a treating physician.” Lester, 81 F.3d at 830; see infra. 14 Although Defendant identified two treatment notes evidencing that Plaintiff 15 was feeling pretty good in July 2014, Tr. 631, and had experienced only a couple 16 auditory hallucinations in January 2015, Tr. 602, ECF No. 15 at 11, it is apparent 17 that other visits and examinations revealed deficits upon which Drs. Kouzes and 18 Gonzalez relied in completing their functional assessments. See Garrison v. 19 Colvin, 759 F.3d 995, 1017-1018 (9th Cir. 2014) (holding that cycles of 20 improvement and debilitating symptoms are a common occurrence with mental 21 health issues, and it is error for an ALJ to pick out a few isolated instances of 22 improvement and to treat them as a basis for concluding a claimant is capable of 23 working). The Court finds the ALJ erred by concluding the limitations assessed by 24 Drs. Kouzes and Gonzalez lacked record support. 25 The second reason provided by the ALJ for according little weight to the 26 opinions of Drs. Kouzes and Gonzalez, that the opinions are not consistent with 27 Plaintiff’s performance of “a number of activities” despite her reported symptoms, 28 is also unsupported. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 The ALJ failed to describe what specific activities of Plaintiff contradicted 2 the opinions of Drs. Kouzes and Gonzalez. If the ALJ fails to specify his rationale, 3 a reviewing court is unable to review those reasons meaningfully without 4 improperly “substitut[ing] our conclusions for the ALJ’s, or speculat[ing] as to the 5 grounds for the ALJ’s conclusions.” Brown-Hunter, 806 F.3d at 492 quoting 6 Treichler, 775 F.3d at 1103. While the ALJ mentions Plaintiff reported going to 7 Disneyland and planned to attend a family reunion, Tr. 34, the ALJ fails to specify 8 how these activities were inconsistent with the assessments of Drs. Kouzes and 9 Gonzalez. Because the ALJ failed to identify what activities specifically 10 contradicted the opinions of Drs. Kouzes and Gonzalez and how any particular 11 activities were inconsistent with the opinions of these medical professionals, the 12 Court finds the ALJ’s rationale for discounting their reports in this regard is also 13 not properly supported. 14 Finally, the ALJ’s determination that the opinions of Drs. Kouzes and 15 Gonzalez were inconsistent with Plaintiff’s reported improvement of symptoms is 16 also unsupported. The evidentiary record reveals Plaintiff continued to have 17 mental health issues throughout the relevant time period in this case with no 18 indication that her symptoms resolved. See Tr. 571-572 (June 11, 2015 19 presentation with auditory hallucinations and delusional thoughts); Tr. 545-546 20 (August 21, 2015 presentation with auditory and visual hallucinations); Tr. 534- 21 535 (October 14, 2015 presentation with paranoia and other mental health 22 symptoms). The Court concludes the ALJ erred by failing to provide cogent, specific, 23 24 and legitimate reasons for rejecting the assessed mental limitations of Drs. Kouzes 25 and Gonzalez. Accordingly, a remand is necessary for reconsideration of their 26 opinions and for further development of the record. 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 2. 2 On June 7, 2012, Dr. Dees also performed a psychological/psychiatric 3 evaluation of Plaintiff on behalf of DSHS. Tr. 404-408. Dr. Dees diagnosed 4 Psychotic Disorder, Not Otherwise Specified; PTSD (adult onset); Generalized 5 Anxiety Disorder (adult onset); and Amphetamine Dependence, in full sustained 6 remission. Tr. 404. He opined it was unlikely Plaintiff would be able to work in a 7 consistent and competitive environment due to her mental health issues, but 8 indicated that treatment would likely improve her ability to return to work. Tr. 9 406. Dr. Dees wrote that Plaintiff appeared able to perform simple and repetitive 10 Dr. Dees tasks, but may have some difficulty with more complex tasks. Tr. 406. 11 The ALJ accorded little weight to the report of Dr. Dees, but failed to 12 provide any rationale for the rejection. Tr. 33; see Brown-Hunter, 806 F.3d at 492 13 (finding the agency must set forth reasoning behind its decisions in a way that 14 allows for meaningful review). 15 Defendant contends that Dr. Dees’ opinion was not “significant probative 16 evidence,” therefore, the ALJ was not required to discuss it. ECF No. 15 at 13-15. 17 The Court does not agree. 18 In a case such as this, where the medical opinion evidence is sparse, the 19 opinion of an examining medical professional is significant probative evidence. 20 The ALJ erred by failing to provide rationale for according little weight to Dr. 21 Dees’ report. Accordingly, the ALJ shall additionally be required to reassess the 22 evaluation of Dr. Dees on remand and provide a detailed analysis related to the 23 weight assigned to his opinions. 24 3. Opinions of Nonexamining Physicians 25 The ALJ assigned “significant weight” to the opinions of Disability 26 Determination Services (DDS) consultants Jerry Gardner, Ph.D. (April 2014), Tr. 27 127-130, Leslie Postovoit, Ph.D. (July 2014), Tr. 142-145, James Bailey, Ph.D. 28 (December 2012), Tr. 79-82, and Bruce Eather, Ph.D. (June 2013), Tr. 103-106. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 These nonexamining medical professionals generally found Plaintiff capable 2 of performing simple, repetitive work with occasional interruptions to 3 concentration, persistence or pace, and capable of appropriate interactions but 4 would work best away from the general public. Id. The ALJ held that these 5 limitations were consistent with the overall evidence of record which demonstrated 6 Plaintiff showed improvement with medication, any residual symptoms she had did 7 not interfere with her activities of daily living, and she often had benign findings 8 on her mental status exams. Tr. 33. However, the ALJ disagreed with the opinion 9 that Plaintiff could perform jobs with occasional interruptions to concentration, 10 persistence, or pace because her mental status exams often showed good 11 concentration, thought process and memory. Id. 12 As discussed above, the ALJ’s basis for discounting the opinions of treating 13 physician Gonzalez and examining physicians Kouzes and Dees, was unsupported. 14 “The opinion of a nonexamining physician cannot by itself constitute substantial 15 evidence that justifies the rejection of the opinion of either an examining physician 16 or a treating physician.” Lester, 81 F.3d at 830. The Court thus finds that the ALJ 17 erred by relying exclusively on the nonexamining medical professionals’ opinions 18 in formulating Plaintiff’s RFC in this case. Therefore, the ALJ’s assessment of 19 Plaintiff’s overall functioning is not supported by substantial evidence. 20 Plaintiff’s RFC must be redetermined, on remand, taking into consideration 21 the opinions of the medical professionals noted above, as well as any additional or 22 supplemental evidence relevant to Plaintiff’s claim for disability benefits. This 23 matter will be remanded for additional proceedings in order for the ALJ to further 24 develop the record, take into consideration Plaintiff’s psychological impairments, 25 and reassess any functional limitations caused by Plaintiff’s impairments. 26 /// 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 B. Step Two 2 Plaintiff argues the ALJ erred at step two of the sequential evaluation 3 process by concluding Plaintiff’s schizophrenia/psychotic disorder was not severe 4 impairments. ECF No. 14 at 11-12. 5 Plaintiff has the burden of proving she has a severe impairment at step two 6 of the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 7 423(d)(1)(A), 416.912. In order to meet this burden, Plaintiff must furnish medical 8 and other evidence that shows she has a severe impairment. 20 C.F.R. § 9 416.912(a). The regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that 10 an impairment is severe if it significantly limits one’s ability to perform basic work 11 activities. An impairment is considered non-severe if it “does not significantly 12 limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 13 404.1521, 416.921. 14 Here, the ALJ mentioned Plaintiff had been diagnosed with varying mental 15 impairments, including schizophrenia. Tr. 26. However, the ALJ specifically 16 found that affective disorder, anxiety disorder, personality disorder, and substance 17 abuse disorder most accurately reflected Plaintiff’s mental symptoms and 18 limitations. Tr. 26. 19 The Court notes Plaintiff’s disability report fails to mention 20 schizophrenia/psychotic disorder as an issue causing her alleged disability. See Tr. 21 346 (alleging only depression, PTSD and anxiety as conditions that limited her 22 ability to work). Furthermore, as asserted by Defendant, ECF No. 15 at 6, none of 23 the medical opinions of record identify schizophrenia as a diagnosed condition. 24 Plaintiff also did not specifically describe how schizophrenia caused greater 25 restrictions on her functionality than as assessed by the ALJ, and thus resulted in 26 harmful legal error in this case. Accordingly, without more, it appears the ALJ’s 27 discussion and findings at step two were not flawed. Nevertheless, given the 28 ALJ’s erroneous determinations regarding the medical opinion evidence of record ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 and the resultant necessity of a remand to remedy these defects, on remand the ALJ 2 shall additionally be required to reexamine the severity of Plaintiff’s conditions at 3 step two of the sequential evaluation process, including schizophrenia. 4 C. Step Three Plaintiff additionally contends the ALJ erred by failing to find Plaintiff’s 5 6 mental impairments met or equaled a Listing at step three of the sequential 7 evaluation process. ECF No. 14 at 12-13. Plaintiff argues that the marked and extreme limitation findings of Dr. 8 9 Gonzalez, when properly considered, direct a finding of disability at step three. 10 While the Court agrees that the ALJ’s rationale for rejecting the opinions of Dr. 11 Gonzalez are unsupported, see supra, the Court finds Dr. Gonzalez’s report and the 12 conclusions therein should be reassessed on remand, not credited as true. Plaintiff 13 bears the burden of establishing that her impairments satisfy the requirements of a 14 Listings impairment, and Dr. Gonzalez’s report, without more, is not enough to 15 establish disability at step three. Tackett v. Apfel, 180 F.3d 1094, 1098-1100 (9th 16 Cir. 1999). On remand, the ALJ shall reexamine step three of the sequential evaluation 17 18 process and specifically readdress Listings 12.03, 12.04, 12.06, and 12.08. 19 D. 20 21 22 Plaintiff’s Subjective Complaints Plaintiff contends the ALJ also erred by improperly rejecting her subjective complaints. ECF No. 14 at 15-19. It is the province of the ALJ to make credibility determinations. Andrews, 23 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 24 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once 25 the claimant produces medical evidence of an underlying medical impairment, the 26 ALJ may not discredit testimony as to the severity of an impairment because it is 27 unsupported by medical evidence. Reddick, 157 F.3d 715, 722 (9th Cir. 1998). 28 Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 2 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ 3 must identify what testimony is not credible and what evidence undermines the 4 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 5 918 (9th Cir. 1993). The ALJ concluded Plaintiff’s medically determinable impairments could 6 7 reasonably be expected to cause her alleged symptoms; however, Plaintiff’s 8 statements concerning the intensity, persistence and limiting effects of those 9 symptoms were not entirely consistent with the medical and other evidence of 10 record. Tr. 29. The ALJ stated the following reasons for finding Plaintiff’s 11 subjective complaints not persuasive in this case: (1) the record does not support 12 limitations as disabling as Plaintiff alleged; (2) Plaintiff maintained employment 13 during her alleged worsening of symptoms; (3) Plaintiff had inconsistencies in her 14 allegations and periods of non-compliance with her treatment; (4) Plaintiff’s 15 mental status exams often demonstrated benign findings; (5) the record reflects that 16 Plaintiff’s medication improved her symptoms; and (6) Plaintiff’s symptoms did 17 not interfere with her activities of daily living. Tr. 30-32. While some of the reasons provided by the ALJ for discounting Plaintiff’s 18 19 testimony may be supported by the evidence of record, this matter must be 20 remanded for additional proceedings to remedy defects in light of the ALJ’s 21 erroneous determination regarding the medical opinion evidence. See supra. 22 Accordingly, on remand, the ALJ shall also reconsider Plaintiff’s statements and 23 testimony and reassess what statements, if any, are not credible and, if deemed not 24 credible, what specific evidence undermines those statements. 25 E. 26 Law Witness Evidence Plaintiff contends the ALJ further erred by improperly rejecting the lay 27 witness statements of Plaintiff’s stepfather, Rick Giberson, Tr. 355-362. ECF No. 28 14 at 13-15. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14 The ALJ shall “consider observations by non-medical sources as to how an 1 2 impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d 3 1226, 1232 (9th Cir. 1987), citing 20 C.F.R. § 404.1513(e)(2). “Descriptions by 4 friends and family members in a position to observe a claimant’s symptoms and 5 daily activities have routinely been treated as competent evidence.” Sprague, 812 6 F.2d at 1232. The ALJ may not ignore or improperly reject the probative 7 testimony of a lay witness without giving reasons that are germane to each witness. 8 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The ALJ considered the statements of Mr. Giberson, found his observations 9 10 similar to Plaintiff’s subjective complaints, and thus assigned little weight to Mr. 11 Giberson’s statements “for the same reasons” as he determined that Plaintiff’s 12 statements were not entirely credible (i.e., longitudinal treatment history, objective 13 findings, performance on exam, improvement of symptoms, and daily activities). 14 Tr. 35; see Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 15 2009) (indicating that third-party testimony can be rejected for the same reasons 16 provided for rejecting the claimant’s testimony). As determined above, this matter will be remanded for additional 17 18 proceedings in light of the ALJ’s erroneous determination regarding the medical 19 opinion evidence. In addition to reassessing Plaintiff’s RFC on remand, the ALJ 20 shall reevaluate Plaintiff’s statements and testimony. Accordingly, on remand, the 21 ALJ shall also reconsider and reevaluate the lay witness statement of Rick 22 Giberson, Tr. 355-362, and the record as a whole with respect to Plaintiff’s 23 limitations and functioning. 24 F. 25 Step Five Plaintiff contends the ALJ erred at step five of the sequential evaluation 26 process by relying on the vocational expert’s testimony in response to an 27 incomplete hypothetical; a hypothetical that did not reflect all of Plaintiff’s 28 limitations. ECF No. 14 at 19-20. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15 1 As concluded above, the ALJ erred by providing inadequate reasoning for 2 rejecting the opinions of Drs. Kouzes, Gonzalez and Dees. See supra. 3 Consequently, the ALJ’s RFC determination is not supported by substantial record 4 evidence in this case and must be reevaluated. 5 On remand, the ALJ shall reassess Plaintiff’s RFC and, if necessary, obtain 6 supplemental testimony from a vocational expert with respect to the new RFC 7 determination. 8 CONCLUSION 9 Plaintiff argues the ALJ’s decision should be reversed and remanded for an 10 immediate award benefits. ECF No. 14 at 20-21. The Court has the discretion to 11 remand the case for additional evidence and findings or to award benefits. Smolen, 12 80 F.3d at 1292. The Court may award benefits if the record is fully developed 13 and further administrative proceedings would serve no useful purpose. Id. 14 Remand is appropriate when additional administrative proceedings could remedy 15 defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). The Court finds 16 further development is necessary in this case. 17 On remand, the ALJ shall reconsider Plaintiff’s psychological limitations 18 and reexamine the severity of Plaintiff’s conditions, including schizophrenia, at 19 step two of the sequential evaluation process. The ALJ shall additionally 20 reexamine step three of the sequential evaluation process and specifically readdress 21 Listings 12.03, 12.04, 12.06, and 12.08. The ALJ shall reconsider the opinions of 22 Drs. Kouzes, Gonzalez and Dees and all other medical evidence of record, 23 including the reviewing state agency physicians. The ALJ shall further develop the 24 record by directing Plaintiff to undergo a consultative psychological examination 25 and/or by eliciting the testimony of a medical expert at a new administrative 26 hearing to assist the ALJ in formulating a new RFC determination. The ALJ shall 27 also reevaluate Plaintiff’s statements and testimony, reevaluate the lay witness 28 statement of Rick Giberson, obtain supplemental testimony from a vocational ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 16 1 expert, if necessary, and take into consideration any other evidence or testimony 2 relevant to Plaintiff’s disability claim. 3 IT IS ORDERED: 4 1. 5 6 7 8 9 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 10 4. An application for attorney fees may be filed by separate motion. 11 The District Court Executive is directed to file this Order and provide a copy 12 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 13 the file shall be CLOSED. 14 DATED January 28, 2019. 15 16 17 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 17
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