Vivian Cirricione v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIVIAN CIRRICIONE, No. 19-55504
Plaintiff-Appellant, D.C. No.
2:17-cv-07107-MWF-JEM
v.
ANDREW M. SAUL, Commissioner of MEMORANDUM*
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted December 8, 2020
Pasadena, California
Before: THOMAS, Chief Judge, O’SCANNLAIN, Circuit Judge, and EZRA,**
District Judge.
Vivian Cirricione (“Cirricione”) challenges the Commissioner of Social
Security’s denial of Social Security Disability Insurance benefits and Supplemental
Social Security Income benefits based on her mental illness with an alleged onset
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
date of January 15, 2012. She filed suit in the district court after the Commissioner
of Social Security (“Commissioner”) initially denied her application on February
10, 2015, an Administrative Law Judge (“ALJ”) held a hearing and denied her
application again on January 4, 2017, and finally the Appeals Council denied
review on August 18, 2017. Upon report and recommendation of the Magistrate
Judge, the district court affirmed the Commissioner’s decision. We have
jurisdiction under 28 U.S.C. § 1291 and review the district court’s decision de
novo. Webb v. Barnhart, 433 F.3d 683, 685–86 (9th Cir. 2005). The ALJ’s factual
findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g);
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). In a separate Order, we
granted Cirricione’s Motion to Take Judicial Notice of a subsequent decision in
which the Commissioner1 determined that Cirricione was disabled as of January 7,
2018. We vacate and remand for the ALJ to reconsider, in light of the subsequent
decision, Cirricione’s status for the period of January 15, 2012, to January 6, 2018.
Cirricione is a thirty-four (34) year-old woman with a high school education
and some college who suffered abuse as a child and from her ex-husband during
and after a short marriage. At various times since the onset of her alleged
disability she has been diagnosed with post-traumatic stress disorder (“PTSD”),
1
The subsequent decision came from a different ALJ within the Social Security
Administration.
2
bipolar disorder, mood disorder, depression, anxiety, eating disorder, borderline
personality disorder (“BPD”), and polysubstance abuse in partial remission.
Between 2012 and 2014, Cirricione was incarcerated on multiple occasions for
crimes involving methamphetamines, hospitalized for drug abuse and suicidal
ideation, and treated by various medical personnel at the Ventura County Jail,
Vista Ventura Telecare, and Anka Behavioral Health.
On November 21, 2014, and February 5, 2015, non-treating state medical
consultants, Drs. E. Aquino-Caro and R. Ferrell, respectively, reviewed
Cirricione’s medical records from these facilities and reported mild-to-moderate
social, memory and concentration limitations but an ability to “perform simple
repetitive tasks on a sustained basis.” After the state evaluations, Cirricione began
treatment with Dr. Nomi Fredrick at Vista Ventura in February 2015, and later
switched to her current psychiatrist, Dr. Dmitriy Shmaryan, at the Ventura County
Behavioral Health Department (“VCBHD”) in September 2015. While at
VCBHD, Cirricione also began seeing licensed social worker Amy Maiman
bi-weekly for therapy. Drs. Fredrick and Shmaryan documented modest
improvement and stabilization with Cirricione’s sobriety, medication, and therapy,
but the treating physicians and LCSW Maiman all characterized Cirricione’s
working capacity as more severely limited than did non-treating state physicians,
Drs. Aquino-Caro and Ferrell. In eight of twenty categories (mostly related to
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social functioning and concentration), one or both treating physicians opined that
Cirricione was limited for 15% or more of an eight-hour workday—the highest
level of limitation. LCSW Maiman also attributed this limitation level to
Cirricione in five additional categories.
The ALJ was required to provide “specific and legitimate reasons” for
rejecting the opinions of the treating physicians and “germane” reasons for
rejecting that of a licensed social worker. Trevizo v. Berryhill, 871 F.3d 664, 675
(9th Cir. 2017); Revels v. Berryhill, 874 F.3d 648, 665–66 (9th Cir. 2017). He
gave “little weight” to the opinions of Drs. Fredrick and Shmaryan and “no
weight” to that of LCSW Maiman because he deemed their opinions inconsistent
with objective medical evidence in the record. The ALJ cited Cirricione’s “routine
and conservative” treatment, reported improvement and stability, and regular
activities like volunteering, attending drug and alcohol recovery group meetings,
exercising, and playing video games as such evidence.
Under this Circuit’s precedent, the ALJ applies a two-step analysis to assess
a claimant’s credibility for symptom severity. See Trevizo, 871 F.3d at 678. Once
the claimant “has presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other
symptoms alleged,” then, absent evidence of malingering, “the ALJ can reject the
claimant’s testimony about the severity of her symptoms only by offering specific,
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clear and convincing reasons for doing so.” Id. Notably, this standard is “the most
demanding required in Social Security cases.” Id.
The ALJ discredited Cirricione’s testimony under the second Trevizo step
because her symptoms were “not entirely consistent with the medical evidence and
other evidence in the record.” In support of this finding, the ALJ mistakenly stated
that Cirricione “graduated from the University of Michigan” when, in reality, she
attended but did not graduate from the school, and now takes courses at Ventura
Community College. He also noted Cirricione’s improvements and stabilization
with treatment and sobriety, as well as her demeanor during the hearing and reports
of her daily activities, including interactions with “medical personnel, her family,
her boyfriend, college personnel, members of the [Narcotics Anonymous] boards
on which she serves, and fellow Humane Society participants.”
Finally, the ALJ determined that Cirricione had a residual functional
capacity (“RFC”) to work at all exertional levels, but was nonexertionally limited
to “unskilled work, with occasional decision making, occasional changes in the
work setting, occasional interaction with co-workers or supervisors, and no
interaction with the public.”
Under 42 U.S.C. § 405(g), the Court may “at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause
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for the failure to incorporate such evidence into the record in a prior proceeding.”
In this case, there is good cause for Cirricione’s failure to incorporate the
subsequent decision because the second ALJ did not issue her decision until
October 31, 2019, which is after the ALJ, Appeals Council, Magistrate Judge, and
district court had all issued decisions in this case.
In Luna v. Astrue, the Court affirmed a district court order remanding a case
for further proceedings because of an “initial denial and subsequent award” of
benefits. 623 F.3d 1032, 1035 (9th Cir. 2010) (distinguishing Bruton v.
Massanari, 268 F.3d 824 (9th Cir. 2001)). As in Luna, the subsequent award in
this case is material new evidence because it “bears directly and substantially on
the matter in dispute, and . . . there is a reasonable possibility that the new evidence
would have changed the outcome of the . . . determination.” Id. at 1034 (quoting
Bruton, 734 F.3d at 827) (internal quotation marks and alterations omitted).
The ALJ in the subsequent decision credited the opinion of Dr. Shmaryan
over those of unnamed “State agency medical consultants[]”2 for a variety of
reasons, some of which existed at the time of the ALJ’s decision in this case (like
Dr. Shmaryan’s area of specialization and the “nature” of his treating relationship
with Cirricione) and some of which did not (like Cirricione’s October 2019
2
These state agency medical consultants might be Drs. Aquino-Caro and Ferrell,
but the record before the Court, including the subsequent decision, does not
identify these physicians.
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involuntary psychiatric hospitalization). The subsequent decision’s discussion of
Cirricione’s October 2019 involuntary hospitalization might be probative of her
mental health prior to January 7, 2018, because mental health “symptoms wax and
wane in the course of treatment.” See Garrison, 759 F.3d at 1017. And, “some
improvement does not mean that the person’s impairment no longer seriously
affects [her] ability to function in a workplace.” Ghanim v. Colvin, 763 F.3d 1154,
1162 (9th Cir. 2014) (quoting Holohan v. Massanari, 246 F.3d 1195, 1205 (9th
Cir. 2001)) (internal quotations and original alterations omitted).
Inconsistency with an incomplete record is an inappropriate reason to
discredit testimony or opinions under any standard. Cf. Am. Bird Conservancy v.
FCC, 545 F.3d 1190, 1195 n.3 (9th Cir. 2008) (“The proper remedy for an
inadequate record . . . is to remand to the agency for further factfinding.”). It
follows that the ALJ’s reasons for discrediting Cirricione’s testimony are neither
clear nor convincing without consideration of the subsequent decision and any
relevant, underlying evidence. See Trevizo, 871 F.3d at 678–82. It is also not a
“legitimate” reason to reject the opinions of treating physicians Drs. Fredrick and
Shmaryan. See id. Nor is such a reason even “germane” to warrant rejecting
LCSW Maiman’s opinion. See Revels, 874 F.3d at 665.
Cirricione contends that the Court should remand this case for an award of
benefits under the credit as true doctrine. “Congress has granted courts some
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additional flexibility in § 405(g) to reverse or modify an administrative decision
without remanding the case for further proceedings.” Treichler v. Comm’r of
Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (internal quotation marks
and citations omitted). But “we generally remand for an award of benefits only in
‘rare circumstances.’” Id. at 1100 (quoting Moisa v. Barnhart, 367 F.3d 882, 886
(9th Cir. 2004)). With an incomplete record, we cannot tell “whether the [separate
ALJ] decisions concerning [Cirricione] were reconcilable or inconsistent,” so a
remand is appropriate in this case to reconduct the RFC finding and reassess the
ALJ’s reasons for discrediting Cirricione’s testimony and the opinions of the three
treating medical professionals. See Luna, 623 F.3d at 1035.
We vacate the district court’s decision and remand the case for further
administrative proceedings to reevaluate Cirricione’s condition from January 15,
2012, to January 6, 2018 in light of the Commissioner’s subsequent decision.
VACATED AND REMANDED.
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