(SS) Keeler v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARK ALLAN KEELER, No. 1:18-cv-00283-GSA 11 Plaintiff, ORDER REMANDING CASE FOR FURTHER PROCEEDINGS UNDER 12 v. SENTENCE 4 OF 42 U.S.C. § 506(g) 13 ANDREW SAUL,1 Commissioner of Social Security, 14 15 Defendant. 16 17 I. Introduction 18 Plaintiff Mark Allan Keeler (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 20 disability insurance benefits pursuant to Title II of the Social Security Act. The matter is 21 currently before the Court on the parties’ briefs which were submitted without oral argument to 22 the Honorable Gary S. Austin, United States Magistrate Judge.2 See Docs. 20, 21 and 22. Having 23 reviewed the record as a whole, the Court finds that certain of the ALJ’s findings were contrary to 24 substantial evidence in the record and that the ALJ failed to develop the record to resolve 25 ambiguous evidence and supplement incomplete documentation. Accordingly, the Court reverses 26 1 Commissioner of Social Security Andrew Saul is substituted as Defendant pursuant to Fed. R. Civ. P. 25(d). See 27 also Section 205(g) of the Social Security Act, 42 USC 405(g) (action survives regardless of any change in the person occupying the office of Commissioner of Social Security). 28 2 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 10 and 13. 1 the Commissioner’s denial of benefits to Plaintiff and remands this matter to the Commissioner 2 for further proceedings consistent with this order. 3 II. Procedural Background 4 On February 6, 2014, Plaintiff filed an application for disability insurance benefits 5 alleging disability beginning April 5, 2013. AR 16. The Commissioner denied the application 6 initially on June 12, 2014, and upon reconsideration on November 6, 2014. AR 16. On January 7 11, 2015, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 8 16. 9 Administrative Law Judge Vincent A. Misenti presided over an administrative hearing on 10 September 14, 2016. AR 34-55. Plaintiff appeared without representation. AR 34. Impartial 11 vocational expert Alan Boroskin (the “VE”) also testified. AR 34. 12 On December 23, 2016, the ALJ denied Plaintiff’s application. AR 16-28. The Appeals 13 Council denied review on December 21, 2017. AR 1-4. On February 26, 2018, Plaintiff filed a 14 complaint in this Court. Doc. 1. 15 III. Factual Background 16 A. Plaintiff’s Testimony 17 Plaintiff (born November 20, 1962) lived with his nineteen-year-old son. AR 41. His 18 income consisted of disabled veteran benefits totaling $263.00 or $267.00 a month and about 19 $110.00 in food stamps. AR 41, 49. Plaintiff completed high school and was able to drive. AR 20 41. 21 Diagnosed with bipolar disorder, Plaintiff had good days and days in which he was unable 22 to function. AR 42. He was troubled with anger and indecision. AR 42-43. He was no longer 23 able to understand what he was reading leading to problems such as his inability to follow the 24 directions for reading the computer discs of the administrative record, which had been sent to him 25 before the hearing. AR 42. None of the medications that Plaintiff had tried worked for him. AR 26 46. 27 As a result of a 1985 motorcycle accident, Plaintiff was missing part of his right leg. AR 28 44-45. Unable to describe the injury, Plaintiff lifted his right pants leg to show the ALJ the 1 condition of his right lower extremity.3 AR 45. The injury left him unbalanced, causing pain and 2 further injury to his ankle and knee joints. AR 45. Plaintiff recently began using a walker which 3 enabled him to straighten his body while he walked. AR 45, 49. Plaintiff thought he could walk 4 for about fifteen or twenty minutes before he would need to sit down for fifteen or twenty 5 minutes. AR 49. 6 Just prior to the hearing, Plaintiff had spent 51 days in the hospital with uncontrollable 7 vomiting. AR 46-47. Plaintiff’s doctors did not identify a cause but Plaintiff attributed the 8 vomiting to stress and anxiety. AR 46. 9 Each of Plaintiff’s days was different. AR 47. He tried to garden, made sandwiches and 10 tried to keep the house tidy. AR 47-48. Plaintiff’s son mowed the lawn, vacuumed and took out 11 the trash. AR 48. 12 Prior to the hearing, Plaintiff completed an adult function report. AR 180-87. He 13 reported feeling sad and depressed and expressed lack of motivation to do house and yard work. 14 AR 181-82. He had difficulty standing, sitting, remembering, completing tasks, concentrating, 15 understanding, following instructions and getting along with others. AR 185. Plaintiff thought 16 he did not get along well with authority figures, did not handle stress well, and declared, “Change 17 is not good.” AR 186. 18 B. Third-Party Reports 19 On March 18, 2014, the agency filing officer observed that Plaintiff had difficulty 20 concentrating, answering, and being coherent. AR 146. The officer noted,” [Claimant] very 21 polite, seemed a little confused about things, grooming fair.” AR 146. 22 Plaintiff’s mother, Pamela Keeler, prepared a third-party adult function report. AR 170- 23 77. She spent time gardening and eating lunch with Plaintiff but had limited knowledge of how 24 Plaintiff functioned in day-to-day activities. AR 170. Because of injuries incurred in a 25 motorcycle accident, Plaintiff had difficulty walking, standing and kneeling. AR 175. He had 26 additional difficulties with memory, concentration, following instructions, taking tests and filling 27 3 The ALJ did not describe on the record what he was able to observe of the condition of Plaintiff’s right lower extremity. Instead, he declined to consider Plaintiff’s leg impairment for lack of medical corroboration in the record. 28 AR 44. 1 out forms such as job applications. AR 175. Plaintiff generally got along well with authority 2 figures and co-workers, but had been fired from his job after problems with a new supervisor. 3 AR 176. Plaintiff was “paranoid” and did not handle stress or changes in routine well. AR 176. 4 He could become frustrated and upset with people, but was not violent. AR 177. 5 In a separate letter to the agency, Ms. Keeler explained that Plaintiff had mental problems 6 most of his life. AR 206. He did not do well at school because he was unable to write things 7 down on paper and could not seem to comprehend things very well. AR 206. He also had an 8 anger problem, which had improved with therapy. AR 206. After losing part of his leg in a 9 motorcycle accident, Plaintiff had difficulty standing and experienced chronic pain. AR 206. His 10 physical problems were worsening as he aged. AR 206. 11 C. Medical Records 12 Plaintiff was a long-time patient at the Veterans Administration Central California Health 13 Care Service (VA).4 Plaintiff’s service connected/rated disabilities totaled 20 percent: tinnitus, 10 14 percent; eczema, 10 percent; and loss of motion—little or ring finger, 0 percent. AR 290. 15 The medical portion of the record is almost entirely composed of the VA’s treatment 16 records for Plaintiff during the period relevant to the pending disability application, and also 17 includes Plaintiff’s medical history and some records of earlier treatment. Plaintiff’s chronic 18 medical problems included diabetes with renal manifestations (chronic kidney disease) and mild 19 nonproliferative diabetic retinopathy; hypertension; hyperglyceridemia; right shoulder joint pain; 20 multiple gastrointestinal problems; chronic pain; hypothyroidism; and, allergies with rhinitis and 21 sinusitis. AR 234-45, 315, 514. He also had chronic mental health problems including 22 depression and bipolar disorder. AR 242-43. 23 Plaintiff was diagnosed with diabetes on November 2001. AR 378. During the time 24 period relevant to this application, Plaintiff’s blood glucose and A1C5 levels were consistently 25 4 Plaintiff served in the U.S. Army from February 23, 1982 through October 14, 1983, and from June 24, 1981 through October 16, 1981. AR 497. Plaintiff was honorably discharged at the end of each stint. AR 497. 26 5 A1C is a blood test for type 2 diabetes and prediabetes. Because the test measures the patient’s average blood glucose level over the past three months, it indicates how well the patient is managing his or her diabetes. The A1C 27 level is a percentage. Normal readings are 5.7 percent or below. Prediabetes is 5.7 to 6.4 percent. Type 2 diabetes is above 6.5 percent. The goal for diabetic patients is to maintain an A1C percentage below 7 percent. 28 www.medlineplus.gov/a1c.html (accessed September 11, 2019). 1 very high. Normal blood glucose levels (fingerstick testing) range from 70 mg/dl (low) to 110 2 mg/dl (high). AR 263. The record reflects the following blood glucose levels measured during 3 examinations at the VA: 230, April 19, 1013; 288, May 18, 2013; 175, August 29, 2013; 321, 4 January 30, 2014 (10:306); 313, January 30, 2014 (11:58); 334, February 5, 2014; 385, February 5 25, 2014; 380, April 4, 2014 (9:14); 336, April 4, 2014 (10:41); 426, July 15, 2014; 133, June 16, 6 2016 (7:30); 232, June 16, 2015; and, 348, June 27, 2016. AR 250, 252, 263, 331, 423, 647, 779. 7 A1C levels were: 9.2, April 19, 2013; 11.1, August 29, 2013; 10.3, January 30, 2014; 10.1, 8 February 25, 2014; 9.7, June 16, 2015; and, 9.7, March 23, 2016. AR 261, 364, 444, 647, 671. 9 On June 17, 2015, Plaintiff’s primary care physician, Shabana Moins, M.D., characterized 10 Plaintiff’s diabetes as uncontrolled and increased his prescription for glipizide.7 AR 889. 11 Because Plaintiff was unable to use the lancet to draw blood, he did not test his blood glucose 12 levels at home. AR 331. 13 Beginning in August 2013, Plaintiff began to use marijuana habitually, maintaining that it 14 improved his symptoms more than prescribed medications. AR 313. 15 On multiple occasions, medical personnel treating Plaintiff in a clinic or the emergency 16 department sought a psychiatric consultation when Plaintiff appeared unduly depressed and 17 tearful, suicidal or homicidal. AR 290-91. In January 2014, a dietician brought Plaintiff to the 18 suicide prevention case worker after Plaintiff voiced suicidal ideation in the course of a weight 19 management and diabetes consultation. AR 333-34, 337-40. Plaintiff told psychiatry resident 20 Sabeena Acharya that he heard a voice telling him to kill himself by driving off the road or 21 freezing to death. AR 338. Plaintiff stated that he would not act on his suicidal thoughts for the 22 sake of his son.8 AR 338. Plaintiff was open to mental health care and agreed to try a 23 prescription of Geodon (Ziprasidone).9 AR 339. 24 6 All times indicated are military time. 25 7 Glipizide is a sulfonylurea which lowers blood glucose by stimulating the pancreas to produce more insulin and helping the body use insulin more efficiently. www.medlineplus.gov/druginfo/meds/a684060.html (accessed September 11, 2019. 26 8 Plaintiff’s wife abandoned the family in or about 2010. AR 619. Thereafter, Plaintiff was solely responsible for his son. 27 9 Geodon (Ziprasidone) is an atypical antipsychotic medication used to relieve the symptoms of schizophrenia and manic or mixed episodes of bipolar disorder. https://www.medlineplus.gov/druginfo/meds/a699062.html (accessed 28 August 28, 2019). 1 In November 2013, audiologist Kathy Lowe, Au.D., conducted an audiologic evaluation 2 to determine Plaintiff’s hearing loss or tinnitus. AR 550-560. Dr. Lowe reported that Plaintiff 3 had normal hearing in both ears. AR 555. Since June 1983, however, Plaintiff’s exposure to the 4 sound of jets landing and taking off resulted in a constant ringing (tinnitus) in Plaintiff’s ears. AR 5 558. Dr. Lowe opined that the probability that Plaintiff’s tinnitus resulted from Plaintiff’s 6 exposure to aircraft noise while working the flight line during active service was greater than 50 7 per cent. AR 559. Plaintiff’s tinnitus affected his daily life and ability to work in that it caused 8 sensitivity to any loud noise including the music at church or the sound of truck air brakes. AR 9 559. In February 2014, Plaintiff told psychiatric nurse practitioner Gilbert D’Souza that he had 10 11 experienced thoughts of self-harm since he was sixteen years old. AR 329. In recent years he 12 heard voices telling him to kill himself but he resisted because he needed to raise his son. AR 13 329. In March 2014, Plaintiff reported experiencing depressive symptoms (describing himself as 14 a “failure”) and panic attacks with few manic symptoms other than a single impulsive act. AR 15 313. Clinical psychiatrist Avak Howsepian, M.D., noted that Plaintiff was chronically suicidal 16 and presently had a plan but no intent. AR 315. 17 In April 2014, Plaintiff sought assistance for an inability to sleep more than three or four 18 19 hours per night. AR 304-05. He described an inability to quiet his mind which he distinguished 20 from his typical manic symptoms. AR 305. 21 On July 15, 2014, Plaintiff was held in the VA Hospital overnight after expressing 22 suicidal thoughts to his primary physician in the mental health clinic. AR 432-35, 457-507. 23 Psychiatrist Joanna Gedzior, M.D., noted that although Plaintiff had detailed multiple plans of 24 suicidal intent in the mental health clinic, he minimized his suicidal thoughts in the emergency 25 department because he did not want to be admitted to the hospital. AR 433. Plaintiff was 26 27 disappointed and angry that he was admitted but was calmer and more euthymic the following 28 /// 1 day. AR 433-34. Dr. Gedzior increased Plaintiff’s dosage of Geodon. AR 434. Plaintiff’s 2 discharge diagnosis was: 3 1. Unspecified bipolar disorder by history, rule out components from substance 4 induced mood disorder (cannabis). 2. Cannabis use disorder (dependence). 5 3. Rule out psychotic spectrum illness. 4. Rule out intellectual disability. 6 5. VCODE isolation, unemployment, few supports, medication noncompliance. 7 6. Diabetes mellitus, hypertension, hyperlipidemia. 7. Global assessment of functioning 7. 8 8. Strengths: 1. He has a son. 9 2. He has a place to live, no debt, makes $200.00 a month in service connection. 10 AR 432-33. 11 At the follow-up appointment on July 30, 2014, Plaintiff reported that he was feeling good 12 and taking his medications. AR 440. Plaintiff continued to use marijuana to relieve his anxiety. 13 AR 440. 14 In January 2015, Plaintiff began individual therapy sessions at Alpha Behavioral 15 Counseling Center. AR 536. Cathy Stansell, LMFT, noted that Plaintiff’s diagnoses included 16 bipolar disorder I (296.54), depressed with psychotic features. AR 536. In a letter addressed “to 17 whom it may concern,” Ms. Stansell wrote: 18 [Plaintiff] reports that he has difficulty going to sleep and often 19 wakes up in the middle of the night. [Plaintiff] often becomes angry and aggravated. He is easily distracted and often has trouble 20 focusing. [Plaintiff] often hears voices on a daily basis. Sometimes [Plaintiff] has racing thoughts and talks excessively. [Plaintiff] has 21 expressed suicidal thoughts and not wanting to live on many occasions. 22 AR 536. 23 June 2015 x-rays of Plaintiff’s chronically painful right shoulder indicated moderate 24 degenerative changes throughout with loss of articular cartilage and mild degenerative changes to 25 the right a.c. joint. AR 637. There were no bony lesions or evidence of calcific tendinitis. AR 26 637. X-rays of Plaintiff’s feet showed no significant abnormalities and mild degenerative 27 changes. AR 638-39. 28 1 In August 2015, podiatric consultant Ross M. Nishijima, D.P.M., examined Plaintiff, who 2 had reported toe pain and burning of his feet. AR 539-40. Neurological testing did not elicit a 3 protective response from the toes of either foot. AR 540. Dr. Nishijima observed a steppage 4 gait10 and diagnosed bilateral hammertoes, hallux vagas (bunions) and diabetic neuropathy. AR 5 540. 6 In September 2015, podiatric surgeon Benjamin A. Brownell, D.P.M., noted diminished 7 muscle strength in the right anterior muscle group and described Plaintiff’s right foot as “inverted 8 on the leg.” AR 538. Plaintiff also had high arches, hammertoes and bunion deformities on both 9 feet. AR 538. Because of severe scarring of his right leg, Plaintiff could not use an ankle foot 10 orthosis (AFO) to stabilize the foot drop of his right lower extremity. AR 538. 11 In February 2016, Dr. Brownell requested a mental health appointment in the context of 12 considering a possible amputation of Plaintiff’s right leg below the knee. AR 654-55. Dr. 13 Brownell noted that Plaintiff had significant nerve, blood flow and muscle damage as a result of 14 his motorcycle accident and the 1985 decision to save his leg. AR 689. Noting that Plaintiff had 15 long struggled with pain and limited motion, Dr. Brownell opined that an amputation would 16 relieve Plaintiff’s pain and improve his mobility and quality of life. AR 654-55. However, Dr. 17 Brownell thought counselling was imperative before a final decision and suggested Dr. 18 McClelland, who worked with patients at the amputee clinic. AR 654-55. 19 In June 2016, primary care physician Shabana Moins noted atrophied right lower leg 20 muscles but full range of motion. AR 719. Range of shoulder motion was normal except that 21 abduction was limited to ninety degrees. AR 718. 22 Plaintiff was hospitalized from July 20 through August 31, 2016, for “vomiting due to 23 esophagitis.” AR 732. Discharge diagnoses were esophagitis, hypothyroidism, diabetes, high 24 cholesterol, enlarged prostate, bipolar disorder, high blood pressure and cannabis dependency. 25 /// 26 10 “Steppage gait (high stepping) is an abnormal gait pattern that arises from weakness of the pretibial and peroneal 27 muscles due to lower motor neuron lesion. Affected patients have foot drop and are unable to dorsiflex and evert the foot. The leg is lifted high on walking so that the toes clear the ground, and there may be a slapping noise when the 28 foot strikes the ground again.” www.ncbi.nlm.nih.gov/gtr/conditions/C0427149/ (accessed September 12, 2019). 1 AR 732. During his stay, Plaintiff received physical therapy to improve his strength and ability to 2 walk. AR 732. Doctors also prescribed insulin. AR 735. 3 D. Medical Opinions11 4 1. Agency Psychologists 5 Psychologist Hillary Weiss, Ph.D., noted that Plaintiff was receiving mental health 6 treatment that included prescription drug therapy but no hospitalization or extended periods of 7 decompensation. AR 60. Symptoms varied over time and included depression, anxiety, mild 8 suicidal and homicidal ideation, insomnia, blunted affect and slowed speech. AR 60. Plaintiff 9 was repeatedly compliant with medications until he felt better and stopped taking his prescribed 10 drugs. AR 60. He was polysubstance dependent and used cannabis daily, which he reported 11 successfully relieved his depression. AR 60. Dr. Weiss opined that Plaintiff was no more than 12 moderately functionally impaired because he continued to live independently and care for his 13 teen-aged son despite having gone for eight years without prescribed medication. AR 60. 14 Dr. Weiss opined that Plaintiff had mild restriction of activities of daily living, mild 15 difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, 16 persistence and pace; and, no repeated episodes of decompensation of extended duration. AR 62. 17 He had no significant limitations in his ability to carry out short and simple or detailed 18 instructions; to perform activities within a schedule, maintain regular attendance and be punctual 19 within customary tolerances; sustain an ordinary routine without special supervision; work in 20 coordination or proximity to others without being distracted buy them; make simple work-related 21 decisions; ask simple questions or request assistance; accept instruction and respond appropriately 22 to criticism from supervisors; get along with coworkers or peer without distracting them or 23 exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic 24 standards of neatness and cleanliness; be aware of normal hazards and take appropriate 25 precautions; travel to unfamiliar locations or use public transportation; and, set realistic goals or 26 make plans independently of others. AR 64-65. Plaintiff had moderate limitations in the 27 following: maintaining attention and concentration for extended periods; completing a normal 28 11 The opinion of Plaintiff’s treating physician, Karthik Sethuram, M.D., is included in section X infra. 1 workday and workweek without interruptions from psychologically based symptoms; performing 2 at a consistent pace without an unreasonable number and length of rest periods; interacting 3 appropriately with the general public; and, responding appropriately to changes in the work 4 setting. AR 64-65. On reconsideration, Elizabeth Covey, Ph.D.,12 agreed with Dr. Weiss’s 5 opinion. AR 76-79. 6 2. Agency Physicians 7 Maria M. Rehrig, M.D., opined that Plaintiff was not severely impaired physically. AR 8 60. His diabetes, hypercholesterolemia and hypertension were managed with prescription 9 medications and did not impact function. AR 60. Plaintiff had trouble standing and sitting but 10 was able to perform activities of daily living. AR 60. Dr. Rehrig did not address the condition of 11 Plaintiff’s right foot and lower leg. 12 On reconsideration, I. Ocrant, M.D., considered Plaintiff’s medical condition without 13 comment. AR 75. Dr. Ocrant found Plaintiff’s diabetes and hypertension to be nonsevere. AR 14 75. 15 3. Vocational Management Services 16 In July 2014, psychologists Patrick Tackett, M.A., and Howard Glidden, Ph.D., of 17 Vocational Management Services (VMS) tested Plaintiff to determine whether he had a learning 18 disability.13 AR 398-404. Plaintiff reported that he had received special education services until 19 his family moved to Laton where the school district did not offer special education. AR 401. 20 Intelligence testing (WAIS-IV) indicated that Plaintiff had a full scale IQ score of 84 (low 21 average), average verbal comprehension and perceptual reasoning, low average working memory 22 and extremely low processing speed. AR 398-99. Mr. Tackett opined that the disparity in 23 Plaintiff’s scores indicated a learning disorder. AR 400. Mr. Tackett recommended that Plaintiff 24 engage in various activities to improve his reading, writing and perceptual skills; attend cognitive 25 skills training sessions and adult basic education classes; and, be referred to a counselor to 26 /// 27 12 The hearing decision referred to Dr. Covey as Dr. “Covery.” 13 Although the VMS reports appear within the VA records in the administrative record, the relationship of VMS to 28 the VA, if any, is not explained in the record. 1 address the after effects of Plaintiff’s having been fired from his prior job. AR 401-02. He also 2 suggested vocational skills training to enable Plaintiff to become a bus driver. AR 401. 3 4. Dr. White 4 In March 2016, psychologist Thomas White, Ph.D., conducted the pre-surgical counseling 5 requested by Dr. Brownell prior to making a decision on the proposed amputation of Plaintiff’s 6 lower right leg. AR 682-84. 7 Dr. White noted that Plaintiff sustained significant leg damage in a hit-and-run motorcycle 8 accident in November 1985. AR 682. Treatment of his injuries was delayed by a transfer from 9 the original emergency room to another hospital where Plaintiff’s fibula was removed among 10 other procedures. AR 682. In 2016, Plaintiff experienced chronic pain and had significant scar 11 tissue that bled easily. AR 682. Dr. White wrote: 12 Veteran wishes he had woken up to an amputated leg back in 1985. He reports he has previously withheld consent for a below-the-knee 13 amputation (BKA) because he hasn’t trusted the VA. He thinks he might be able to trust the VA now. Veteran worries that he will be 14 “hung out to dry” with insufficient physical/occupational therapy subsequent to surgery. He states that he is unaware what the 15 recommended post-surgical routine is. He is unaware of how long his recovery will be. He worries he will never drive again. He 16 worries he will not be provided a prosthetic leg and he can’t afford to buy one himself. 17 AR 682-83. 18 Dr. White administered the Montreal Cognitive Assessment (MoCA). AR 683. Plaintiff 19 scored below the normal range. AR 683. Dr. White wrote: 20 Veteran failed the Necker Cube, needed prompting on Digits 21 Backward, got flummoxed on Fluency, was 1 for 2 on Abstraction, and 2 for 5 on Delayed Recall. These results suggest mild cognitive 22 deficits typical of Borderline Intellectual Functioning. Veteran reported historical diagnosis of Learning Disorder. Further 23 assessment would be required for more specific diagnosis of cognitive/intellectual functioning. 24 AR 683. 25 The doctor described Plaintiff as anxious, concerned and displaying expansive affect and 26 simple, profuse speech. AR 683. Grooming was minimally acceptable. AR 683. Plaintiff was 27 fully oriented and absent of delusion. AR 683. Insight was poor, and judgment and impulse 28 1 control were poor to fair. AR 683. Dr. White diagnosed borderline intellectual functioning, 2 bipolar disorder and unspecified anxiety disorder, and emphasized Plaintiff’s poor problem- 3 solving skills. AR 684. He opined: 4 Veteran has a diagnosis of Bipolar Disorder and Screener (MoCA) results suggest that he would likely meet criteria for Borderline 5 Intellectual Functioning. 6 Veteran has a hard time thinking outside the box. His thought patterns are rigid. He worries greatly about the unforeseen outcomes 7 of events, which has been reinforced by his history of poor advocacy and terrible results. 8 Veteran’s anxiety will be significantly less if he is given simple, 9 written instructions for what to expect in surgery, outcomes of surgery, and especially the timeline for recovery. He may benefit 10 from regular visits with a provider (who could be this writer) who will discuss his feelings and needs and help address concerns as they 11 arise. 12 AR 684. 13 IV. Standard of Review 14 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 15 Commissioner denying a claimant disability benefits. “This court may set aside the 16 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 17 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 18 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 19 within the record that could lead a reasonable mind to accept a conclusion regarding disability 20 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 21 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 22 omitted). When performing this analysis, the court must “consider the entire record as a whole 23 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 24 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 25 omitted). 26 If the evidence reasonably could support two conclusions, the court “may not substitute its 27 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 28 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 1 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 2 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 3 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 4 V. The Disability Standard 5 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 6 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 7 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 8 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 9 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 10 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 11 him, or whether he would be hired if he applied for work. 12 42 U.S.C. §1382c(a)(3)(B). 13 To achieve uniformity in the decision-making process, the Commissioner has established 14 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 15 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 16 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 17 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 18 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 19 medically determinable “severe impairments,” (3) whether these impairments meet or are 20 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 21 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 22 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 23 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 24 VI. Summary of the ALJ’s Decision 25 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 26 alleged onset date of April 5, 2013. AR 18. His severe impairments included arthritis; diabetes 27 mellitus with neuropathy; affective disorder; and anxiety disorder. AR 18. None of the severe 28 /// 1 impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 2 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). AR 19. 3 The ALJ concluded that Plaintiff had the residual functional capacity to perform medium 4 work as defined in 20 C.F.R. § 404.1567(c) “except frequent right reaching; understanding, 5 remembering and carrying out simple routine repetitive tasks using judgment limited to simple 6 work related decisions; and socially interacting with coworkers and the public occasionally.” AR 7 21. 8 Plaintiff was unable to perform any past relevant work. AR 26. Considering Plaintiff’s 9 age, education, work experience and residual functional capacity, jobs that Plaintiff could perform 10 existed in significant numbers in the national economy. AR 27. 11 VII. Plaintiff’s Proceeding Without Counsel or Other Representation14 12 In a preface to his arguments, Plaintiff contends that the ALJ had a “heightened duty of 13 care” to ensure that Plaintiff had a full and fair opportunity to present his claim. Doc. 20 at 13. 14 The Commissioner did not comment on Plaintiff’s contention. 15 A claimant generally bears the burden of proving his or her entitlement to disability 16 benefits. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 20 C.F.R. § 404.1512(c). 17 However, Social Security hearings are not adversarial proceedings. DeLorme v. Sullivan, 924 18 F.2d 841, 849 (9th Cir. 1991). Whether or not the claimant is represented by counsel, the ALJ 19 “must inform himself about the facts relevant to his decision.” Heckler v. Campbell, 461 U.S. 20 458, 471 n. 1 (1983). “The ALJ has a special duty to fully and fairly develop the record and to 21 assure that the client’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 22 1983). Accord Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Smolen, 80 F.3d at 23 24 14 Courts generally do not address issues not raised by the parties on appeal. F.R.App.P. 28(a); Crawford v. Gould, 56 F.3d 1162, 1169 (9th Cir. 1995). Nonetheless, a court may raise an issue sua sponte to prevent injustice, Morales 25 v. Astrue, 2010 WL 2629571 at *8 (C.D.Cal. June 29, 2010) (No. CV 09-2494-PJW), or to raise an affirmative defense not raised by the defendant, Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 216 F.3d 764, 788-89 (9th Cir. 2000), overruled on other grounds, Gonzales v. Arizona, 677 F.3d 383, 389 n. 4 (9th 26 Cir. 2012). Moore v. Astrue, 2011 WL 1532407 at *3 (D. Mont. Mar. 30, 2011) (No. CV-10-36-GF-SEH-RKS). Fully addressing Plaintiff’s arguments on appeal required the Court to reorganize Plaintiff’s issues and Defendant’s 27 responses to permit complete and orderly analysis of how the proceedings below complied, or failed to comply, with regulatory requirements, and to articulate completely and accurately the matters to be addressed on remand. 28 1 1288. The duty is triggered whenever the evidence is ambiguous or the record is inadequate to 2 allow proper evaluation of the evidence. Mayes, 276 F.3d at 459-60. 3 Because mentally ill or intellectually impaired claimants may not be able to protect 4 themselves from possible loss of benefits by furnishing necessary evidence of their limitations, 5 the ALJ’s duty to develop the record fully is “especially important” in such cases. DeLorme, 924 6 F.2d at 849. The record here establishes that Plaintiff was both mentally ill and intellectually 7 impaired requiring the ALJ to take extra care to ensure that the record was adequate to set forth 8 Plaintiff’s impairments and functional limitations fully and fairly. 9 The Court finds that Plaintiff’s interests were not safeguarded the absence of an attorney 10 or other advocate. For instance, the ALJ failed to consider Plaintiff’s testimony of impairments 11 associated with his lower right extremity based on the absence of medical documentation in the 12 record. AR 44. Given the record’s many references to impairments associated with the lasting 13 effects of the 1985 injuries to Plaintiff’s lower right extremity, medical documentation more 14 properly would have been considered incomplete, requiring the ALJ to supplement the record. 15 Likewise, the ALJ did not follow up on Plaintiff’s testimony that he was “kicked out” of 16 the Welfare to Work program (AR 50), evidence that may have been highly relevant to Plaintiff’s 17 ability to function in a work environment during the time period relevant to this application. 18 Had an attorney or other advocate been present on Plaintiff’s behalf, he or she likely 19 would have provided evidence of Plaintiff’s lower right leg impairment and/or “made a record” of 20 the appearance of Plaintiff’s lower right leg when Plaintiff, unable to describe the permanent 21 deformity that resulted from his 1985 motorcycle accident, rolled up his pants leg to allow the 22 ALJ to see its condition. AR 45. The ALJ did neither. Ultimately, the ALJ relied only on the x- 23 rays of Plaintiff’s feet (AR 638-39) to declare Plaintiff’s right lower extremity had minimal 24 degenerative changes. AR 18. The ALJ described the condition of Plaintiff’s right lower 25 extremity as a “right leg discrepancy,” and discounted evidence that Plaintiff had undergone 26 preoperative evaluations for a below-the-knee amputation stating, “It is unclear from the record 27 whether surgery has been scheduled or any further follow up care has been undertaken.” AR 18. 28 /// 1 Here, the ALJ’s own statement acknowledges that evidence of the condition of Plaintiff’s lower 2 right extremity was incomplete or ambiguous. 3 In addition, the ALJ disregarded the neurological component of Plaintiff’s ambulatory 4 impairments which resulted both from Plaintiff’s diabetic neuropathy and the severe injuries 5 incurred in Plaintiff’s 1985 motorcycle accident. Because minimal evidence of the interaction of 6 these multiple impairments appears in the record, the ALJ had a duty to obtain additional 7 evidence and expert opinion concerning the effect of these multiple impairments on Plaintiff’s 8 ability to ambulate and ultimately, to perform work. He did not do so. 9 Shortly before the administrative hearing, Plaintiff himself submitted evidence concerning 10 his recent health problems. AR 732-36. At the agency hearing Plaintiff testified that he had 11 recently begun using a walker and had spent 51 days in the hospital because he was unable to stop 12 vomiting. AR 39-40, 45, 46-47. Unable to articulate the nature of his recent illness, Plaintiff 13 referred the ALJ to recently submitted medical records. AR 47. Unassisted by counsel, however, 14 Plaintiff submitted only the documentation that he had received as a patient—his discharge 15 instructions. AR 39-40, 732-36. The ALJ took no action to supplement the record with the full 16 records of Plaintiff’s lengthy hospitalization, even though the discharge instructions include some 17 provocative language that counsel surely would have developed further. 18 First, the discharge instructions report that Plaintiff had received physical therapy which 19 “improved your physical strength and ability to walk.” AR 732. The instructions directed 20 Plaintiff to “[i]ncrease activities according to instructions from physical therapy.” AR 733. The 21 discharge instructions are incomplete and ambiguous. Their language may indicate nothing more 22 than Plaintiff’s having required therapy to restore strength after a long illness. Combined with 23 Plaintiff’s testimony that he had recently begun using a walker, which greatly improved his 24 ability to ambulate, the ALJ erred in failing to observe his “special duty to fully and fairly 25 develop the record and to assure that the client’s interests are considered.” Brown, 713 F.2d at 26 443. 27 Even without reference to the physical therapy note, the discharge instructions required 28 further inquiry. Hospital stays as long as Plaintiff’s (51 days) suggest serious medical issues, 1 which may or may not have long-term functional implications. Plaintiff’s discharge instructions 2 do not provide sufficient information concerning Plaintiff’s most recent serious illness and its 3 implications on his ability to perform work. In addition, following the hospitalization, “There 4 [we]re numerous changes done to [Plaintiff’s] medication regiment.” AR 735. In the absence of 5 counsel, the ALJ had a duty to supplement the record by obtaining complete records of Plaintiff’s 6 recent hospitalization and ensuing treatment as well as medical opinions of the functional effect 7 of Plaintiff’s recent illness. 8 Finally, an ALJ needs to ensure that a Plaintiff’s claim is protected. It appears that this 9 was not done here. Mr. Tackett, to whose psychological opinion the ALJ gave partial weight, 10 opined that Plaintiff had extremely low mental processing speed and required improvement of his 11 cognitive and perceptual skills. However, the ALJ seemed to rush Plaintiff through a verbal 12 waiver of Plaintiff’s right to counsel, and then presented the written waiver form for signing only 13 after the administrative hearing was completed. AR 36-38. The ALJ also minimized Plaintiff’s 14 disclosure that he had been unable to review the administrative record before arriving for the 15 hearing because he was unable to follow the written instructions to view on his computer the CDs 16 that the Commissioner has previously mailed to him. AR 38-39. 17 Thus, Plaintiff’s claim was not adequately protected by the ALJ, who had the duty to do 18 so. 19 VIII. Reliability of Plaintiff’s Symptom Testimony 20 Plaintiff contends that the ALJ erred in rejecting Plaintiff’s testimony as inconsistent with 21 objective medical evidence and in failing to consider Plaintiff’s “stellar work history.” The 22 Commissioner counters that the ALJ’s determination to discount Plaintiff’s representation of the 23 limitations associated with his physical and mental impairments was supported by clear and 24 convincing evidence. As detailed in subsection VII above, the ALJ chose to disregard 25 communication difficulties associated with Plaintiff’s intellectual and mental health impairments, 26 and failed to supplement incomplete and ambiguous evidence in the record. As a result, the 27 ALJ’s conclusion that Plaintiff’s testimony was contradictory to objective medical evidence is 28 compromised by the incomplete evidence itself. 1 /// 2 A. Stellar Work History 3 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 4 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 5 subjective symptom evaluation is not “an examination of an individual’s character” but an 6 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 7 16-3p at 1-2. 8 In light of the prescribed focus on the interaction of a claimant’s medically determined 9 symptoms and his functional abilities and limitations, little would have been added by 10 consideration of Plaintiff’s “stellar work history.” In fact, the evidence of record did not establish 11 that Plaintiff’s work history was “stellar.” Nonetheless, the record suggests that Plaintiff 12 satisfactorily performed his job as a loss prevention officer at Best Buy for many years until he 13 clashed with a new supervisor and was fired.15 Whether or not one considers Plaintiff’s work 14 history to have been “stellar,” the interests of justice require further discussion of the ALJ’s 15 analysis of the reliability of Plaintiff’s testimony. 16 B. Determining a Claimant’s Reliability 17 An ALJ is responsible for determining credibility, resolving conflicts in medical 18 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 19 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v. 20 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 21 To determine whether the ALJ’s findings are supported by sufficient evidence a court 22 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 23 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 24 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown- 25 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized 26 determinations like a claimant’s entitlement to disability benefits, Congress places a premium 27 15 Plaintiff’s inability to adjust easily to a new supervisor appears consist with his mental health records, which 28 support a finding that Plaintiff is unable to adapt easily to changes in routine. 1 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the 2 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting 3 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. 4 Fed. Maritime Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal 5 courts should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the 6 testimony, and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting 7 Treichler., 775 F.3d at 1098). 8 A claimant’s statement of pain or other symptoms is not conclusive evidence of a physical 9 or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. “An ALJ 10 cannot be required to believe every allegation of [disability], or else disability benefits would be 11 available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. Bowen, 12 885 F.2d 597, 603 (9th Cir. 1989). 13 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 14 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 15 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the 16 claimant must produce objective medical evidence of an impairment that could reasonably be 17 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; 18 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that 19 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the 20 alleged symptoms.” AR 22. The ALJ did not find Plaintiff to be malingering. 21 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ 22 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent 23 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 24 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by 25 symptoms to a greater or lesser extent than other individuals with the same medical impairments, 26 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In 27 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical 28 evidence, the claimant’s representations of the intensity, persistence and limiting effects of her 1 symptoms, statements and other information from medical providers and other third parties and 2 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 3 “The determination or decision must contain specific reasons for the weight given to the 4 individual’s symptoms, be consistent with and supported by the evidence, and be clearly 5 articulated so the individual and any subsequent reviewer can assess how the adjudicator 6 evaluated the individual’s symptoms.” SSR 16-3p at *10. 7 Because a “claimant’s subjective statements may tell of greater limitations than can 8 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 9 limitations merely because they are not supported by objective evidence.” Tonapetyan, 242 F.3d 10 at 1147-48 (quoting Fair, 885 F.2d at 602 (9th Cir. 1989)). See also Bunnell v. Sullivan, 947 F.2d 11 341, 345 (9th Cir. 1991) (holding that when there is evidence of an underlying medical 12 impairment, the ALJ may not discredit the claimant’s testimony regarding the severity of his 13 symptoms solely because they are unsupported by medical evidence). “Congress clearly meant 14 that so long as the pain is associated with a clinically demonstrated impairment, credible pain 15 testimony should contribute to a determination of disability.” Id. (internal quotation. 16 The law does not require an ALJ simply to ignore inconsistencies between objective 17 medical evidence and a claimant’s testimony. “While subjective pain testimony cannot be 18 rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 19 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 20 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 21 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly 22 considers whether the objective medical evidence supports or is consistent with a claimant’s pain 23 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to 24 diminish residual functional capacity only to the extent that the alleged functional limitations and 25 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 26 other evidence”). 27 An ALJ therefore cannot properly assess the reliability of a claimant’s testimony in light 28 of the record as a whole when, as in this case, the medical evidence is incomplete and ambiguous. 1 In such circumstances, evaluating the reliability of a claimant’s testimony by comparing it to the 2 objective medical record is itself unreliable. Because the ALJ failed to take appropriate steps to 3 ensure that the record was complete (see section VII above), the analysis of the reliability of 4 Plaintiff’s testimony is also incomplete. 5 In addition, the ALJ engaged in conclusory reasoning, taking evidence from an 6 incomplete and complicated record to support a finding that Plaintiff was not disabled. 7 “Although it is within the power of the Secretary to make findings concerning the credibility of a 8 witness and to weigh conflicting evidence, Rhodes v. Schweiker, 660 F.2d 722, 724 (9th Cir. 9 1981), he cannot reach a conclusion first, then attempt to justify it by ignoring competent 10 evidence in the record that suggests an opposite result. Whitney v. Schweiker, 695 F.2d 784, 788 11 (7th Cir. 1982).” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 12 The ALJ’s credibility analysis relies on his determination that the Plaintiff’s testimony is 13 inconsistent with, and unsupported by, Plaintiff’s daily activities and functional abilities. Careful 14 analysis reveals that objective evidence within the record fails to support, or directly contradicts, 15 the ALJ’s factual findings about Plaintiff activities and abilities. 16 The problem here is not merely an instance of an ALJ construing evidence susceptible to 17 two reasonable interpretations. When the evidence could arguably support two interpretations, 18 the Court may not substitute its judgment for that of the Commissioner. Jamerson, 112 F.3d at 19 1066. When the Commissioner’s interpretation is not supported by substantial evidence, 20 however, the court may set it aside. Tackett, 180 F.3d at 1097. Because of a lack of substantial 21 supporting evidence, the Commissioner’s findings concerning Plaintiff’s daily activities and 22 functional abilities is not supportable. 23 For example, the hearing decision finds that plaintiff stopped working in April 2013 24 “because of his conditions.” AR 21. In fact, the evidence consistently indicated that Plaintiff was 25 fired from his loss prevention position at Best Buy following a dispute with his supervisor. 26 In another example, the ALJ discounted evidence of Plaintiff’s limited intellectual and 27 executive management capabilities by stating: 28 /// 1 [O]verall the records show he continues to manage his treatment and appointments and effectively communicate concerns and complaints 2 to providers. Furthermore, he has been able to provide a history 3 when needed and complete necessary paperwork. 4 AR 20. 5 To the contrary, the record shows that Plaintiff experienced substantial difficulty 6 managing his treatment and appointments. He missed one psychiatric session because he went to 7 the previous clinic location and was unable to locate the new VA mental health building. AR 8 612. On another occasion, Plaintiff missed multiple appointments because he had written the 9 wrong time or date on his calendar. AR 370, 444, 845. VA personnel noted the need for special 10 provisions to assist Plaintiff in keeping records and reporting to appointments. AR 845. 11 Nothing in the record supports the conclusion that Plaintiff was capable of handling his 12 own paperwork. Plaintiff testified that he had difficulty with reading, writing, remembering, 13 completing tasks, understanding and following instructions. AR 42, 185. His mother’s statement 14 and letter supported Plaintiff’s testimony, adding that Plaintiff historically had difficulty taking 15 tests, filling out forms, and easily became frustrated and angry. AR 176-77, 206. He did poorly 16 in school because he could not write things on paper and had difficulty comprehending things. 17 AR 206. Dr. Sethuram helped Plaintiff complete his social security disability forms. AR 44. 18 Nor does the record suggest the Plaintiff has been able to “effectively communicate 19 concerns and complaints to his providers or anyone else.” AR 20. More than thirty years after 20 his motorcycle accident, Plaintiff was unable to articulate what was wrong with his right leg and 21 needed to show it to the ALJ. 22 Nor does the record support the conclusion that Plaintiff was capable of managing his own 23 medical care. The ALJ himself recognized Plaintiff’s noncompliance with treatment elsewhere in 24 the hearing decision, noting that Plaintiff often discontinued taking medication when his 25 symptoms improved. AR 22-23. Plaintiff was resistant to using medication and other 26 prescribed treatments and unable or unwilling to test his blood glucose since it required him to 27 draw blood, which Plaintiff found painful. Even when Plaintiff recognized that a medication was 28 helpful, he did not consistently take it. Plaintiff abused marijuana despite his doctors’ attempts to 1 persuade him to discontinue its use, insisting that it relieved his symptoms better than any 2 prescribed medication. Such noncompliance is consistent with Plaintiff’s diagnosis of bipolar 3 disorder. K. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996); Winter v. Berryhill, 711 4 Fed.Appx. 847, 851 (9th Cir. 2017). 5 Despite finding that Plaintiff was noncompliant with medications, the ALJ found 6 Plaintiff’s diabetes to be well managed with diet, medication and lifestyle changes. AR 23. 7 Objective medical evidence contradicts this finding, never showing that Plaintiff’s blood glucose 8 and AIC test results in the normal range. AR 250, 252, 261, 263, 331, 364, 423, 444, 647, 671, 9 779. Similarly, the ALJ found that Plaintiff’s diabetes caused no end organ damage and that 10 Plaintiff had no significant problems with his vision, kidneys or hands. AR 23. Neurological 11 testing revealed diabetic neuropathy sufficient to preclude a protective response to adversive 12 stimuli to Plaintiff’s toes. AR 540. Plaintiff ‘s diabetes also resulted in chronic kidney disease 13 and diabetic retinopathy. AR 238, 239, 322, 359, 364 Plaintiff’s primary care physician, Dr. 14 Moins, described Plaintiff’s diabetes as uncontrolled. AR 889. Physician Mary Quann, M.D., 15 also noted Plaintiff’s poorly controlled diabetes, attributing it to his “poor understanding.” AR 16 371. 17 Minimizing the severity of the impairment of Plaintiff’s right lower extremity, the ALJ 18 found that the record revealed no muscle atrophy. AR 23. To the contrary, Dr. Moins noted 19 atrophied right lower leg muscles. AR 719. 20 Thus, the ALJ’s conclusion that Plaintiff’s testimony was unreliable is not supported by 21 substantial evidence. On remand, the Commissioner is directed to fully review the record 22 following supplementation to determine Plaintiff’s daily activities and functional abilities based 23 on substantial evidence drawn from a complete record. 24 IX. Step Two Error 25 Plaintiff contends that the ALJ erred in failing to include Plaintiff’s physical impairments 26 among the severe impairments at step two. The Commissioner counters that because the 27 condition of Plaintiff’s right leg did not significantly limit his ability to perform basic work 28 activities, it was not a severe impairment. The Court disagrees with the ALJ’s conclusion that 1 Plaintiff’s lower right leg impairment was not severe because he “did not seek out or require 2 treatment for his right leg discrepancy until 2016.” AR 19. 3 At step two, the Commissioner determines whether the claimant has a medically severe 4 impairment or combination of impairments. Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987); 20 5 C.F.R. §416.920(a)(4)(ii). An impairment is a medically determinable physical or mental 6 impairment or combination of physical or mental impairments. 20 C.F.R. § 416.902(f). If a 7 claimant does not have an impairment of combination of impairments that significantly limit the 8 claimant’s physical or mental ability to do basic work activities, the Commissioner will find that 9 the claimant does not have a severe impairment. 20 C.F.R. § 416.920(c). As noted above, the 10 hearing decision stated that Plaintiff’s severe impairments included arthritis; diabetes mellitus 11 with neuropathy; affective disorder; and anxiety disorder. AR 18. 12 A. The Severity Regulation Imposes a de Minimus Standard at Step Two 13 “The step-two inquiry is a de minimus screening device to dispose of groundless claims.” 14 Smolen, 80 F.3d at 1290. An impairment or combination of impairments can be found ‘not 15 severe’ only if the evidence establishes a slight abnormality that has no more than a minimal 16 effect on an individual[‘]s ability to work.” Id. at 1290; SSR 85-28. When reviewing an alleged 17 error at step two, the Court must determine whether substantial medical evidence supported the 18 ALJ’s finding that the claimant did not have a medically severe impairment or combination of 19 impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 20 A post-accident impairment that results in misplacement of the claimant’s foot, an ankle 21 and lower leg deformity, a stepping gait that cannot be minimized through application of a brace, 22 fragile scar tissue that is easily wounded, and postural changes that result in arthritic pain of the 23 claimant’s hips and other leg is not so minimal in nature that it could never prevent a person from 24 working. The Court notes that the ALJ also omitted other physical impairments that arguably 25 should have been included as severe impairments: diabetic retinopathy, chronic renal disease, 26 shoulder joint pain, chronic gastrointestinal problems, allergic rhinitis and sinusitis and substance 27 abuse (marijuana), and minimized Plaintiff’s diagnosed bipolar disorder with psychotic features 28 (see AR 432-33, 536) by calling it an “affective disorder.” 1 B. ALJ Must Consider Combined Effect of Multiple Impairments 2 Even if an individual impairment is not sufficiently serious to prevent a person from 3 working, an ALJ must consider the combined effect of all of the claimant’s impairments on his or 4 her ability to function as well as considering the claimant’s subjective symptoms, such as pain or 5 fatigue. Smolen, 80 F.3d at 1290. “If such a finding is not clearly established by medical 6 evidence, however, adjudication must continue through the sequential evaluation process.” SSR 7 85-28. The Smolen court warned: 8 Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of 9 an impairment or combination of impairments on the individual’s abilities to do basic work activities, the sequential evaluation process 10 should not end with the not severe evaluation step. Rather, it should be continued. In such a circumstance, it the impairment does not 11 meet or equal the severity level of the relevant medical listing, sequential evaluation requires that the adjudicator evaluate the 12 individual’s ability to do past work, or to do other work based on the consideration of age, education, and prior work experience. 13 SSR 85-28. 14 For example, Ms. Smolen had survived childhood cancer that resulted in the loss of one 15 kidney, loss of part of her left lung, changes in her remaining lung tissue, mild anemia, 16 suppression of bone marrow production, and spinal scoliosis, all of which led to severe fatigue 17 and back pain. Smolen, 80 F.3d at 1290. The ALJ found only a single severe impairment, “slight 18 scoliosis,” which limited her ability to walk and sit. Id. The step two analysis disregarded Ms. 19 Smolen’s subjective symptoms when determining severity. Id. The Ninth Circuit rejected the 20 step two analysis: “Having found Smolen to suffer from only one “severe” impairment at step 21 two, the ALJ necessarily failed to consider at step five how the combination of her other 22 impairments—and resulting incapacitating fatigue—affected her residual functional capacity to 23 do work.” Id. at 1291. Similarly, characterizing many of Plaintiff’s impairments as not severe at 24 step two resulted in the impairments’ omission from consideration at subsequent steps of the 25 disability analysis. 26 /// 27 /// 28 1 C. The ALJ Misconstrued the Evidence of Plaintiff’s Leg Deformity 2 The ALJ concluded that Plaintiff’s “right leg discrepancy” was not a severe medically 3 determinable impairment: 4 [T]he evidence in the record shows that claimant did not seek out or require treatment for his right leg discrepancy until 2016. Moreover, 5 his examinations were unremarkable as they relate to this condition, of the right lower extremity. The evidence does not indicate his 6 activities were limited by providers and in fact he was often advised to increase his physical activity. 7 AR 19. 8 As noted in section VII, the ALJ failed to ensure that the medical record included 9 complete and accurate evidence of Plaintiff’s impairments, particularly the condition of Plaintiff’s 10 lower right extremity. Even in its incomplete state, the record contradicts the ALJ’s 11 determination. Plaintiff was seriously injured in a motorcycle accident in 1985, requiring surgery 12 to save his lower right leg that included the removal of his fibula.16 AR 682. Plaintiff 13 experienced chronic pain and had significant scar tissue that bled easily. AR 682. Dr. Brownell 14 was unable to stabilize Plaintiff’s lower right extremity because the presence of extensive and 15 fragile scar tissue precluded the use of an ankle foot orthosis. AR 538. Plaintiff told Dr. White 16 that in retrospect he wished his leg had been amputated at the time of the surgery. AR 682-83. 17 At the agency hearing Plaintiff was unable to articulate the nature of his injury and raise his pant 18 leg to show the ALJ the condition of his leg. AR 45. The ALJ did not memorialize what he 19 observed for the record. 20 In addition, the record establishes neurological deficits reflecting Plaintiff’s diabetic 21 neuropathy (testing revealed no protective response in Plaintiff’s toes (AR 540)) as well as 22 sensory deficits linked to Plaintiff’s 1985 motorcycle accident (Plaintiff testified that there was so 23 much nerve damage, his leg did not hurt (AR50)). The ALJ did not acknowledge the 24 neurological component of Plaintiff’s lower right extremity impairment. 25 /// 26 /// 27 16 The fibula is the outer and smaller of the two bones in the lower leg, which articulates proximally with the tibia 28 and distally is joined to the tibia by syndesmosis. Dorland’s Medical Dictionary at 629 (28th ed. 1994). 1 D. The ALJ’s Errors Were Not Harmless 2 The ALJ erred at step two by disregarding the severity rule and concluding that Plaintiff’s 3 foot, ankle and lower leg deformity was not a severe impairment; failing to consider Plaintiff’s 4 diabetic retinopathy, chronic renal disease, shoulder joint pain, chronic gastrointestinal problems, 5 allergic rhinitis and sinusitis and substance abuse (marijuana) in the context of the step two 6 analysis; and, minimizing Plaintiff’s diagnosed bipolar disorder with psychotic features (see AR 7 432-33, 536) by calling it an “affective disorder.” These errors cannot be considered harmless. 8 As in Smolen, the omission of the full panoply of Plaintiff’s impairments resulted in the ALJ’s 9 failing to determine accurately Plaintiff’s residual functional capacity in light of his combined 10 impairments. As part of the analysis of Plaintiff’s claim on remand, the Commissioner is directed 11 to use the augmented medical records to ensure that all severe impairments are included at step 12 two, and that the combined effect of all severe impairments are fully considered. 13 X. Improper Analysis of Expert Medical Opinion 14 Plaintiff challenges the Commissioner’s determination of his residual functional capacity, 15 contending that the ALJ erred in rejecting the opinions of treating physician Karthik Sethuram, 16 M.D. The Commissioner disagrees, contending that the ALJ properly rejected Dr. Sethuram’s 17 opinion as inconsistent with the objective evidence. 18 As discussed in detail in section VIII above, the ALJ made many factual findings that 19 were not supported by substantial evidence. The ALJ erred in using these unsupported findings to 20 set aside Dr. Sethuram’s opinions. 21 A. Applicable Law 22 The opinions of treating physicians, examining physicians, and non-examining physicians 23 are entitled to varying weight in disability determinations. Lester v. Chater, 81 F.3d 821, 830 (9th 24 Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 25 greater opportunity to know and observe the patient as an individual. Id.; Smolen, 80 F.3d at 26 1285. The opinion of an examining physician is, in turn, entitled to greater weight than the 27 opinion of a non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An 28 ALJ may reject an uncontradicted opinion of a treating or examining medical professional only 1 for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of 2 a treating professional may be rejected for “specific and legitimate” reasons. Id. at 830. 3 However, the opinions of a treating or examining physician are “not necessarily conclusive as to 4 either the physical condition or the ultimate issue of disability.” Morgan v. Comm'r of Soc. Sec. 5 Admin., 169 F.3d 595, 600 (9th Cir. 1999). 6 B. Dr. Sethuram’s Opinion 7 Scattered throughout the record are four pages of a report prepared by Plaintiff’s VA 8 treating psychiatrist, Karthik Sethuram, D.O. AR 408-10, 537. Dr. Sethuram opined that 9 Plaintiff had a mild intellectual disability. AR 408. Plaintiff was likely to be off-task from 15 to 10 20 percent of the workday, miss one day of work each month, and be unable to complete a full 11 day of work twice monthly. AR 409. About five percent of the time, Plaintiff would be unable to 12 sustain an ordinary routine without special supervision; make simple work-related decisions; 13 complete a normal workday and work week without interruptions from psychologically based 14 symptoms; perform at a consistent pace without an unreasonable number and length of rest 15 periods; interact appropriately with the general public; maintain socially appropriate behavior and 16 adhere to basic standards of neatness and cleanliness; and, be aware of normal hazards and take 17 appropriate precautions. AR 409-10, 537. About ten percent of the time, Plaintiff would be 18 unable to understand and remember detailed instructions; carry out detailed instructions; maintain 19 attention and concentration for extended periods of time; work in coordination with or in 20 proximity to others without being distracted by them; get along with coworkers or peers without 21 distracting them or exhibiting behavioral extremes; respond appropriately to changes in the work 22 setting; and, set realistic goals or make plans independently of others. AR 408-09, 537. About 23 fifteen per cent of the time, Plaintiff would be unable to travel in unfamiliar places or use public 24 transportation. AR 409, 537. 25 Dr. Sethuram believed that because of his medical impairments and physical and mental 26 limitations, Plaintiff was unlikely to obtain and retain full-time work in a competitive work 27 setting for a continuous period of more than six months: 28 /// 1 [Patient] is currently in treatment with me in mental health clinic. He has not been compliant with meds in the past, but has been taking for 2 the last 12 days (as of 07/30/2014). He has held jobs before, but due to the level of mental illness and med regimen he is currently on, he 3 may be unable to sustain a full workday. May be able to follow routine, manual jobs with simple instructions, but would have 4 difficulty in competitive, fast moving, or complicated jobs that require a great deal of social contact. 5 AR 408. 6 C. The ALJ’s Analysis 7 The ALJ gave little weight to the opinion of treating physician Dr. Sethuram finding that 8 the doctor’s opinions concerning Plaintiff’s likely inability to obtain and retain work were 9 inconsistent with the evidence of record. AR 24-25. The ALJ emphasized that despite periodic 10 exacerbations of Plaintiff’s mental health impairments, Plaintiff was able to perform activities of 11 daily living and manage his finances and treatment. AR 25. In addition, Dr. Sethuram did not 12 clearly indicate whether his opinion was intended as a long-term assessment of Plaintiff’s 13 functioning. AR 25. The ALJ concluded that Dr. Sethuram’s statements indicated that Plaintiff 14 would improve with medication and treatment compliance. AR 25. 15 D. The ALJ’s Rejection of Dr. Sethuram’s Opinion 16 The Commissioner must give more weight to medical opinions from a claimant’s treating 17 sources since treating professionals are most able to provide a detailed, longitudinal picture of the 18 claimant’s medical impairments and may provide a unique perspective to the medical evidence 19 that cannot be drawn from objective medical findings along or from reports of individual 20 examinations. 20 C.F.R. § 404.1527(c)(2). “The Commissioner is required to give weight not 21 only to the treating physician’s clinical findings and interpretation of test results, but also to his 22 subjective judgments.” Lester, 81 F.3d at 833. The ALJ did not acknowledge Dr. Sethuram’s 23 status as a treating physician. 24 Here, the ALJ focused on the supportability of Dr. Sethuram’s opinion (20 C.F.R. § 25 404.1527(c)(3)), finding that the opinion was not consistent with the evidence of record. As 26 discussed in section VIII above, however, the ALJ’s findings concerning Plaintiff’s daily 27 activities and functional abilities were not supported by substantial evidence in the administrative 28 1 record. As a result, the ALJ erred in concluding that that Dr. Sethuram’s opinions were not 2 supportable. 3 Further, an ALJ may not reject an expert medical opinion because a claimant occasionally 4 experiences periods of relief from his symptoms and an increased ability to function. Lester, 81 5 F.3d at 833. “Occasional symptom-free periods—and even the sporadic ability to work—are not 6 inconsistent with disability.” Id. 7 Interestingly, the ALJ did not give limited weight to Dr. Sethuram’s opinion because of a 8 contradictory medical opinion. Rather the ALJ gave it limited weight because it was inconsistent 9 with the ALJ’s own assessment of Plaintiff’s daily activities and functional abilities. “[A]n ALJ 10 may not act as his own medical expert as he is “simply not qualified to interpret raw medical data 11 in functional terms.” H. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). Decisions addressing 12 this issue frequently speak of an ALJ’s “play[ing] doctor and making [his] own independent 13 medical findings.” See, e.g., Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006). See, 14 e.g., Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (ALJ erred in rejecting medical opinion 15 based on the ALJ’s belief that claimant’s attempts to operate a small business were inconsistent 16 with a diagnosis of major depression). Thus, despite the lack of evidentiary basis, the ALJ 17 concluded that Dr. Sethuram’s statements indicated that Plaintiff would improve with medication 18 and treatment compliance. However, Dr. Sethuram’s opinion does not go that far. 19 Further, it is “a questionable practice to chastise one with a mental impairment for 20 exercise of poor judgment in seeking rehabilitation.” K. Nguyen, 100 F.3d at 1465 (quoting 21 Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989). Courts within the Ninth Circuit 22 generally recognize that noncompliance with treatment is consistent with a diagnosis of bipolar 23 disorder and does not undermine the claimant’s level of disability. Winter, 711 Fed.Appx. at 4. 24 Failure to comply fully with treatment is “entirely consistent” with diagnoses including bipolar 25 disorder, depression and anxiety. Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1164 (9th Cir. 26 2012). 27 The ALJ erred in giving little weight to Dr. Sethuram’s opinion. 28 /// 1 XI. Remand for Further Proceedings 2 When the Commissioner’s decision is not supported by substantial evidence, the Court has 3 the authority to affirm, modify, or reverse the Commissioner’s decision “with or without 4 remanding the cause for rehearing.” 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 5 1076 (9th Cir. 2002). “Generally when a court . . . reverses an administrative determination, the 6 proper course, except in rare circumstances, is to remand to the agency for additional 7 investigation or explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Moisa v. 8 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Here, remand is appropriate so that the 9 Commissioner may supplement the record to include evidence fully and unambiguously 10 addressing all of Plaintiff’s mental and physical impairments and obtain medical opinions 11 assessing the effect of Plaintiff’s impairments on his residual functional capacity. To ensure the 12 appearance of fairness, the Court encourages the Commissioner to delegate his responsibilities to 13 an administrative law judge who has not previously considered Plaintiff’s application. 14 XII. Conclusion and Order 15 It is hereby ordered that this case be REVERSED and REMANDED to the Commissioner, 16 pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings in accordance with this 17 opinion. The Clerk of Court is directed to enter judgment in favor of Plaintiff, Mark Allan Keeler, 18 and against Defendant, Andrew Saul, Commissioner of Social Security. 19 IT IS SO ORDERED. 20 21 Dated: September 30, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28