Gregory Malveaux v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY MALVEAUX, No. 20-17334
Plaintiff-Appellant, D.C. No. 2:18-cv-01952-DMC
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dennis M. Cota, Magistrate Judge, Presiding
Argued and Submitted February 16, 2022
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and BENNETT,**
District Judge.
This appeal arises from a Social Security benefits determination by an
Administrative Law Judge (“ALJ”). Appellant Gregory Malveaux (“Malveaux”)
appeals a district court ruling affirming the denial of his request for disability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
benefits after more than a decade of litigation. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse and remand for an award of benefits.
Malveaux suffered a self-described “psychotic break” in May 2011, and was
hospitalized for several days with anxiety, paranoia, delusions, and hallucinations.
He has since been prescribed psychiatric drugs to control his symptoms and received
routine evaluations from psychiatrist Dr. Robert Ruxin, as well as a physician, a
nurse, and a therapist. All four found that he was well-groomed and mild-mannered,
but all four observed varying levels of paranoia, stress, and anxiety.
Malveaux has come before an ALJ on three separate occasions. On November
7, 2011, Malveaux was denied benefits on a disability claim related to a back injury.
In this proceeding, the ALJ found that Malveaux’s mental conditions were not
sufficient to render him disabled. Malveaux submitted a subsequent claim, and in
2014, the ALJ found that Malveaux was not disabled prior to May 8, 2012. The
Social Security Administration’s Appeal Council vacated the ALJ’s determination
that Malveaux was not disabled between November 8, 2011, and May 7, 2012, and
instructed the ALJ to place greater emphasis on Malveaux’s mental health evidence
on remand. Nevertheless, in 2017, the ALJ denied relief again, issuing a decision
that mirrored her 2014 ruling. In this decision, the ALJ discredited the claimant’s
testimony, discounted his wife and his treating physician, and denied relief, noting
that no credible evidence on record supported the claimed disability.
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Onset Date Determination: The ALJ only considered whether Malveaux
was disabled between November 8, 2011, and May 7, 2012. Malveaux argues that
the ALJ erred by treating November 8, 2011, as the onset date of his symptoms,
rather than May 29, 2011—the date he was hospitalized for mental health concerns.
We agree with this assertion. The record contains uncontroverted evidence that
Malveaux was hospitalized on May 29, 2011, and that this hospitalization is the
foundation of his disability claim. Neither party contests these facts. Nor does res
judicata compel a different result: The Appeals Council noted that Malveaux was
hospitalized in May 2011, and each ALJ characterized his mental health symptoms
differently. See Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001) (“[R]es judicata
does not apply when an ALJ later considers ‘on the merits’ whether the claimant was
disabled during an already-adjudicated period.”). Given the unique facts of this case,
we conclude that May 29, 2011 was the proper onset date.
Dr. Ruxin’s Opinions: Malveaux next argues that the ALJ erred by
discrediting testimony by his treating physician, Dr. Ruxin. We concur. “Because
treating physicians are employed to cure and thus have a greater opportunity to know
and observe the patient as an individual, their opinions are given greater weight than
the opinions of other physicians.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
1996). “[T]he opinions of nonexamining doctors ‘cannot by [themselves] constitute
substantial evidence that justifies the rejection of the opinion of either an examining
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physician or a treating physician.’” Revels v. Berryhill, 874 F.3d 648, 664 (9th Cir.
2017) (alteration in original). Moreover, an ALJ cannot “isolat[e] a specific quantum
of supporting evidence” while disregarding the countervailing weight of the
physician’s opinion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
The ALJ provided inadequate reasons for discounting Dr. Ruxin’s opinions,
as those opinions were consistent with Malveaux’s daily activities and objective
evidence on the record. Moreover, the record indicates that the ALJ gave greater
weight to the testimony of three nontreating physicians, only one of whom was a
psychologist. See Revels, 874 F.3d at 665–66; Smolen, 80 F.3d at 1285 (“[T]he
opinions of a specialist about medical issues related to his or her area of
specialization are given more weight than the opinions of a nonspecialist.”).
Additionally, the ALJ selectively credited portions of Dr. Ruxin’s testimony that
“show[ed] that [Malveaux] is capable of simple repetitive tasks,” while disregarding
all portions that supported a finding of disability. Cf. Ghanim v. Colvin, 763 F.3d
1154, 1164–65 (9th Cir. 2014) (“[T]he ALJ improperly cherry-picked some of [the
physician’s] characterizations of [claimant’s] rapport and demeanor . . . .”). Each of
these conclusions was error.
Claimant’s Testimony: Malveaux also asserts that the ALJ should not have
discredited his own testimony as to the severity of his symptoms. As this Court noted
in Smith v. Kijakazi:
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‘An ALJ engages in a two-step analysis to determine whether a
claimant’s testimony regarding subjective pain or symptoms is
credible. First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged.’ . . . [Second,] provided ‘there is no evidence of
malingering, the ALJ can reject the claimant’s testimony about the
severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.’
Smith v. Kijakazi, 14 F.4th 1108, 1111–12 (9th Cir. 2021) (quoting Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)).
In this case, the ALJ concluded that “the claimant’s medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms,”
but took issue with “the claimant’s statements concerning the intensity, persistence
and limiting effects of those symptoms.” The ALJ’s reasons for doing so are not
“clear and convincing.” See Moors v. Comm’r, 278 F.3d 920, 924 (9th Cir. 2002)
(“The clear and convincing standard is the most demanding required in Social
Security cases.”). First, due to the erroneous onset date determination, the ALJ failed
to consider the medical records that were most relevant to Malveaux’s disability.
Second, the ALJ placed undue emphasis on several activities that have no apparent
relationship to Malveaux’s work capacity, such as his ability to “count change,” to
“read, write stories, and use the computer,” and to “watch television.” Third, the
ALJ’s conclusion that Malveaux was capable of leaving his home and completing
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chores overlooks the fact that he frequently required his wife’s assistance to
complete these tasks.
Lay Witness Testimony: Finally, Malveaux takes issue with the ALJ’s
decision to discount his wife’s testimony. As Ms. Malveaux is not a claimant in this
case, her lay testimony is not subject to the same stringent analysis as her husband’s,
and may be rejected for “germane” reasons, Nguyen v. Chater, 100 F.3d 1462, 1467
(9th Cir. 1996), such as conflicts with medical evidence on the record, Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The ALJ made such a finding, noting
that no medical evidence supported Ms. Malveaux’s assessment of her husband’s
symptoms. However, this analysis is contaminated by the erroneous rejection of Dr.
Ruxin’s opinion, which would have corroborated Ms. Malveaux’s lay testimony.
Accordingly, we agree that the ALJ erred in discounting this testimony.
Award of Benefits: In light of the foregoing errors in the ALJ’s analysis, we
reverse the decision of the district court. “The decision whether to remand a case for
additional evidence, or simply to award benefits[,] is within the discretion of the
court.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). In Trevizo, we held
that a remand for benefits is appropriate if three conditions are met:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand.
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Id. at 682–83 (quoting Garrison, 759 F.3d at 1020). In this case, the record is fully
developed and would not be served by additional proceedings. The ALJ also failed
to provide legally sufficient reasons for her ruling, and the ALJ’s errors undercut the
only basis for contesting “the intensity, persistence, and limiting effects of
[Malveaux’s] symptoms.” Accordingly, we reverse the ALJ’s decision and remand
for an award of benefits.
REVERSED AND REMANDED.
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