(SS) Dodson v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARLENE DODSON, ) Case No.: 1:18-cv-1172 - JLT ) 12 Plaintiff, ) ORDER REMANDING THE ACTION PURSUANT ) TO SENTENCE FOUR OF 42 U.S.C. § 405(g) 13 v. ) ) ORDER DIRECTING ENTRY OF JUDGMENT IN 14 ANDREW M. SAUL1, ) FAVOR OF MARLENE DODSON, AND AGAINST Commissioner of Social Security, ) DEFENDANT ANDREW M. SAUL, 15 ) COMMISSIONER OF SOCIAL SECURITY Defendant. ) 16 ) 17 Marlene Dodson asserts she is entitled to a period of disability and disability insurance benefits 18 under Title II of the Social Security Act. Plaintiff argues the administrative law judge erred in 19 evaluating the record and seeks judicial review of the decision denying benefits. Because the ALJ erred 20 in evaluating Plaintiff’s statements regarding the severity of her symptoms and rejecting the opinions of 21 a treating and examining physician, the matter is REMANDED for further proceedings pursuant to 22 sentence four of 42 U.S.C. § 405(g). 23 BACKGROUND 24 In June 2014, Plaintiff filed her application for benefits, alleging disability beginning on 25 February 5, 2014. (Doc. 9-3 at 16) The Social Security Administration denied the application at the 26 initial level and upon reconsideration. (See generally Doc. 9-4) Plaintiff requested a hearing and 27 1 This action was originally brought against Nancy A. Berryhill in her capacity as then-Acting Commissioner. 28 (See Doc. 1) Andrew M. Saul, who is now the Commissioner, has been automatically substituted as the defendant in this 1 testified before an ALJ on January 9, 2018. (See Doc. 9-3 at 16, 36) The ALJ determined Plaintiff was 2 not disabled under the Social Security Act, and issued an order denying benefits on August 1, 2017. 3 (Id. at 16-28) Plaintiff filed a request for review of the decision with the Appeals Council, which 4 denied her request on June 28, 2018. (Id. at 2-5) Therefore, the ALJ’s determination became the final 5 decision of the Commissioner of Social Security. 6 STANDARD OF REVIEW 7 District courts have a limited scope of judicial review for disability claims after a decision by 8 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 9 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 10 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The 11 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal 12 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of 13 Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 14 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 16 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 17 must be considered, because “[t]he court must consider both evidence that supports and evidence that 18 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 19 DISABILITY BENEFITS 20 To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to 21 engage in substantial gainful activity due to a medically determinable physical or mental impairment 22 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 23 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 24 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 25 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 26 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 27 28 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 1 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 2 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 3 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 4 ADMINISTRATIVE DETERMINATION 5 To achieve uniform decisions, the Commissioner established a sequential five-step process for 6 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The process 7 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had 8 medically determinable severe impairments (3) that met or equaled one of the listed impairments set 9 forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional 10 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant 11 numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical 12 evidence. 20 C.F.R. §§ 404.1527, 416.927. 13 Pursuant to this five-step process, the ALJ determined Plaintiff had not engaged in substantial 14 gainful activity since the alleged onset date of February 5, 2014. (Doc. 9-3 at 18) Second, the ALJ 15 found Plaintiff’s severe impairments included: “history of seizure disorder, headaches, [and] 16 degenerative joint disease.” (Id.) The ALJ noted Plaintiff also alleged depression and anxiety, but 17 found these impairments “do not cause more than minimal limitation in the claimant’s ability to 18 perform basic mental work activities and are therefore nonsevere.” (Id. at 21) 19 At step three, the ALJ determined Plaintiff’s impairments did not meet or medically equal a 20 Listing. (Doc. 10-3 at 22-25) Next, the ALJ found: 21 [T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can occasionally balance, but cannot climb 22 ladders, ropes or scaffolds. She must avoid concentrated exposure to hazards. 23 (Id. at 21) With this residual functional capacity, the ALJ determined at step four that Plaintiff was 24 “capable of performing past relevant work as a data entry clerk, administrative clerk and claims clerk.” 25 (Id. at 27) In the alternative, at step five the ALJ found “other jobs existing in the national economy 26 that she is also able to perform.” (Id.) Thus, the ALJ concluded Plaintiff was not disabled as defined 27 by the Social Security Act from February 5, 2014, through the date of the decision. (Id. at 28) 28 /// 1 DISCUSSION AND ANALYSIS 2 Plaintiff argues the ALJ erred in evaluating her mental impairments at step two and opinions 3 related to the impact of the impairments. (Doc. 18 at 29-35) She also asserts the ALJ erred in 4 evaluating the medical record and formulating the residual functional capacity. (Id. at 26-29) Finally, 5 Plaintiff contends the ALJ erred evaluating her credibility by failing to address a positive work history. 6 (Id. at 36-37) The Commissioner argues the ALJ’s “decision is supported by substantial evidence, free 7 from reversible error, and should be affirmed.” (See Doc. 21 at 29) 8 A. Analysis of Plaintiff’s Subjective Statements 9 Plaintiff testified that she had a seizure for the first time in January 2014. (Doc. 9-3 at 39) She 10 reported that she “tried to go back [to work] for a short period of time,” but was unable to do so “with 11 the memory loss, the stress, [and] the anxiety.” (Id. at 41) Plaintiff reported an MRI revealed “a spot 12 on the brain that is actually what triggers [her] seizures,” and surgery was a possibility. (Id. at 45) 13 However, Plaintiff said it was “not worth – the fear of it… because it may or may not work...” (Id.) 14 She said her seizures were under control by the hearing, but she remained unable to work due to 15 daily headaches, migraines, memory loss, and anxiety. (Doc. 9-3 at 41) Plaintiff stated her neurologist 16 informed her that headaches and memory loss were side effects from her prescriptions. (Id. at 43) She 17 testified that she had headaches on a daily basis, which she described as “a dull roar.” (Id. at 44) 18 Plaintiff also said that once a month, she would “see spots out to the side” and felt “mini seizures that 19 would go into migraines.” (Id. at 45, 48) Plaintiff stated she took migraine medication that “knocks 20 [her] out,” and she would “be out for a couple of days with it.” (Id. at 45) 21 Plaintiff said she was not seeing a psychiatrist, therapist, or other mental health professional. 22 (Doc. 9-3 at 43) Plaintiff stated no one recommended that she see a therapist, and when the ALJ 23 observed that a treatment note from June 2014 recommended counseling, Plaintiff stated she “honestly 24 [didn’t] remember.” (Id. at 44) She reported she was never hospitalized for mental issues. (Id.) 25 She testified she had issues with concentration and stress, and that her doctor indicated stress 26 could cause seizures. (Doc. 9-3 at 46-47) She reported that her doctor opined Plaintiff should stay 27 away from any type of stress. (Id.) Plaintiff said she could “tell a big difference” between when she 28 was stressed, because a headache would come with stress. (Id. at 47) 1 1. Standards for reviewing a claimant’s statements 2 Plaintiff contends the ALJ’s evaluation of her symptoms was flawed because “the ALJ failed to 3 consider numerous factors as required by the regulations when assessing whether a claimant’s self- 4 described limitations are consistent with and supported by the record.” (Doc. 18 at 36) For example, 5 Plaintiff asserts the ALJ erred by failing to consider “her exemplary work history.” (Id.) Further, she 6 asserts the analysis of her subjective symptoms impacted the ALJ’s analysis related to the severity of 7 her mental impairments and headaches, incorporating limitations related to her headaches in the 8 residual functional capacity. (Id.) 9 In evaluating a claimant’s statements, an ALJ must determine first whether objective medical 10 evidence shows an underlying impairment “which could reasonably be expected to produce the pain or 11 other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting 12 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if there is no evidence of malingering, 13 the ALJ must make specific findings as to the claimant’s credibility by setting forth clear and 14 convincing reasons for rejecting his subjective complaints. Id. at 1036. 15 If there is objective medical evidence of an impairment, an ALJ may not discredit a claimant’s 16 testimony as to the severity of symptoms merely because it is unsupported by objective medical 17 evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991). The Ninth Circuit explained: 18 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the 19 causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment “could reasonably be expected to produce” 20 pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 21 22 Smolen v. Chater 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton, 799 23 F.2d 1403). Further, an ALJ is directed to identify “specific reasons for the weight given to the 24 individual’s symptoms,” in a manner such that the claimant “and any subsequent reviewer can assess 25 how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling2 16-3p, 2017 WL 26 5180304 (2017). 27 2 Social Security Rulings (SSRs) are “final opinions and orders and statements of policy and interpretations” 28 issued by the Commissioner. 20 C.F.R. § 402.35(b)(1). The Ninth Circuit gives the Rulings deference “unless they are 1 An ALJ may consider additional factors to assess a claimant’s statements including, for 2 example: (1) the claimant’s reputation for truthfulness, (2) inconsistencies in testimony or between 3 testimony and conduct, (3) the claimant’s daily activities, (4) an unexplained, or inadequately 4 explained, failure to seek treatment or follow a prescribed course of treatment, and (5) testimony from 5 physicians concerning the nature, severity, and effect of the symptoms of reported by a claimant. Fair 6 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 7 Cir. 2002) (an ALJ may consider a claimant’s reputation for truthfulness, inconsistencies between a 8 claimant’s testimony and conduct, and a claimant’s daily activities). 9 2. The ALJ’s analysis of Plaintiff’s statements 10 The ALJ determined first that Plaintiff’s “medically determinable impairments could reasonably 11 be expected to cause the alleged symptoms.” (Doc. 9-3 at 22) However, the ALJ found Plaintiff’s 12 “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely 13 consistent with the medical evidence and other evidence in the record....” (Id.) In making this finding, 14 the ALJ provided a chronological summary of the medical record from January 2014 to November 15 2016, and then stated: 16 The evidence is consistent with the residual functional capacity determination herein. Her seizures are controlled. While she reports headaches, she has also deferred 17 medication due to symptoms that are not consistent with one suffering from the degree of pain alleged. On June 16, 2015, Dr. Chen noted that the claimant did not want to 18 take additional medication for headaches, as she could “tolerate current level of severity” (Exhibit 10F, page 37). On December 16, 2015, she said she did not like 19 Imitrex for her headaches because it made her feel like she was under anesthesia. Her headaches are not severe enough to warrant emergency room visits, or more frequent 20 than six month follow up visits with Dr. Chen. She “rarely” takes the prescription headache medication due to “somnolence” or feeling tired, yet did not apparently deem 21 them severe enough to see the doctor in the interim six months. 22 (Id. at 25; see also id. at 22-25) 23 a. Summary of the medical record 24 As an initial matter, “summariz[ing] the medical evidence supporting [the] RFC determination... 25 is not the sort of explanation or the kind of ‘specific reasons’ [the Court] must have in order to ... ensure 26 that the claimant's testimony was not arbitrarily discredited.” Brown-Hunter v. Colvin, 806 F.3d 487, 27 494 (9th Cir. 2015). 28 The ALJ offered boilerplate findings related to whether Plaintiff’s medically determinable 1 impairments could cause the symptoms alleged and that her statements were “not entirely consistent 2 with the medical evidence and other evidence in the record.” (Doc. 9-3 at 22) The ALJ then followed 3 the assessment with a chronological summary of the record, including objective findings and Plaintiff’s 4 subjective reports to her physicians. (Id. at 22-25) However, the ALJ did not link Plaintiff’s testimony 5 to this summary of the record, such as by identifying any inconsistent statements between her reports to 6 physicians and her testimony at the hearing. Previously, this Court determined that unless the ALJ 7 links the claimant’s testimony to “the observations an ALJ makes as part of the summary of the medical 8 record [this is] not sufficient to establish clear and convincing reasons for rejecting a Plaintiff's 9 credibility.” Argueta v. Colvin, 2016 U.S. Dist. LEXIS 102007 at *44 (E.D. Cal. Aug. 3, 2016). 10 A district court may not review an ALJ’s summary of the record to identify inconsistencies 11 between a claimant’s testimony and the record. In Brown-Hunter, the claimant argued the ALJ failed to 12 provide clear and convincing reasons for rejecting her symptom testimony. Id., 806 F. 3d at 491. The 13 district court identified inconsistencies in the ALJ’s summary of the medical record that it opined gave 14 rise to reasonable inferences about Plaintiff's credibility. Id. On appeal, the Ninth Circuit determined 15 the ALJ failed to identify the testimony she found not credible and did not link that testimony to 16 support the adverse credibility determination. Id. at 493. The Court explained that even if the district 17 court’s analysis was sound, the analysis could not cure the ALJ’s failure. Id. at 494. 18 Likewise, here, the ALJ offered little more than a summary of the medical evidence, and he did 19 not identify the statements from Plaintiff that the ALJ believed conflicted with this record. Although 20 Defendant identifies inconsistencies between Plaintiff’s testimony and the records summarized by the 21 ALJ (see Doc. 21 at 26-28), these inconsistencies cannot support the adverse credibility determination 22 because the Court is “constrained to review the reasons the ALJ asserts.” Brown-Hunter, 806 F.3d at 23 494 (emphasis in original) (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 24 Because the ALJ failed to link his credibility findings from the summary of the medical record 25 to Plaintiff’s testimony and reject limitations to which she testified—including difficulties with 26 concentration and an inability to handle stress— the ALJ made an error the Court is unable to cure. See 27 Brown-Hunter, 806 F. 3d at 494. In addition, given the ALJ’s failure to “specifically identify what 28 testimony is credible and what evidence undermines the claimant's complaints,” the summary of the 1 medical record fails to support the ALJ’s decision to reject Plaintiff’s subjective complaints. See 2 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) Brown-Hunter, 806 F.3d at 494. 3 b. Treatment sought and received 4 In assessing a claimant’s statements regarding the severity of her symptoms, the ALJ may 5 consider “the type, dosage, effectiveness, and side effects of any medication.” 20 C.F.R. § 6 404.1529(c)(iv). Further, the Ninth Circuit determined that an “ALJ is permitted to consider lack of 7 treatment in his credibility determination.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 8 (finding the ALJ’s consideration of the claimant’s failure to seek treatment for a three or four month 9 period was “powerful evidence”); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (the 10 ALJ properly considered the physician’s failure to prescribe, and the claimant’s failure to request, 11 medical treatment commensurate with the “supposedly excruciating pain” alleged). 12 The ALJ found that Plaintiff’s seizures were well-controlled with her medication. (Doc. 9-3 at 13 25) The ALJ noted that “[w]hile [Plaintiff] reports headaches, she also deferred medication due to 14 symptoms that are not consistent with one suffering from the degree of pain alleged.” (Doc. 9-3 at 25) 15 Specifically, the ALJ observed Plaintiff “did not want to take additional medication for headaches” and 16 reported she did not want to take Imitrex “because it made her feel like she was under anesthesia.” (Id.) 17 The ALJ also noted that Plaintiff did not visit the emergency room for her headaches or have “more 18 frequent than six month follow up visits” with her physician. (Id.) 19 Plaintiff contends the ALJ’s analysis related to her treatment for headaches is flawed because 20 “failure to follow treatment is not the end of the inquiry, it is the beginning: having determined a failure 21 to follow treatment, an ALJ may only deny benefits on this basis if (1) the treatment can restore the 22 claimant’s ability to work, and 2) there are no ‘acceptable reasons’ for the failure to follow treatment.” 23 (Doc. 18 at 23, emphasis omitted) (citing 20 C.F.R. 404.1530). Plaintiff observes the ALJ did not make 24 any finding that her treatment would restore her ability to work, and asserts the record includes 25 acceptable reasons for Plaintiff declining Imitrex. (Id. at 22-23) According to Plaintiff, the ALJ’s 26 analysis “is a misreading of the record,” because her physician concluded Plaintiff “did not tolerate 27 Imitrex.” (Id. at 22, citing AR 553 [Doc. 9-13 at 44]) Plaintiff also argues that “the record documents 28 far more significant effects of this medication.” (Id. at 22-23, citing AR 551, 555 [Doc. 9-13 at 42, 47]) 1 Significantly, the ALJ failed to acknowledge that when Plaintiff declined additional medication, 2 Dr. Chen indicated Plaintiff was currently “on a high dose of 2” medications—Aptiom and Lamictal— 3 and wanted “to continue with her current regimen.” (Doc. 9-13 at 40) Despite this, Dr. Chen 4 prescribed Imitrex for Plaintiff to take as needed for her migraines. (Id. at 41) Plaintiff tried the 5 Imitrex and reported it did not help. (Id. at 42) In addition, Plaintiff stated that when she took the 6 medication, she “felt she was ‘under anesthesia.” (Id.) Dr. Chen determined Plaintiff “[d]id not 7 tolerate Imitrex.” (Id. at 44) 8 As Plaintiff argues, the ALJ’s failure to address the circumstances around Plaintiff’s declining 9 to take additional medication or acknowledge that Plaintiff still tried Imitrex after the doctor prescribed 10 it. The ALJ also fails to acknowledge the physician’s opinion that Plaintiff did not tolerate the Imitrex. 11 Because the ALJ did not address the proffered reasons for Plaintiff declining to take Imitrex for his 12 headaches, this does not support the ALJ’s decision to give less weight to Plaintiff’s statements 13 regarding the severity of her headaches. See Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). On 14 the other hand, the fact that Plaintiff did not seek more frequent treatment suggests that her headaches 15 were as severe as alleged. Thus, the treatment sought and received by Plaintiff offers some support for 16 the ALJ’s evaluation of Plaintiff’s statements regarding the severity of her headaches. 17 c. Consideration of Plaintiff’s work history 18 Plaintiff asserts the ALJ also erred in evaluating her subjective statements because the ALJ did 19 not consider all factors identified by the Regulations, such as her work history. (Doc. 18 at 36) She 20 contends that she “had an excellent work history prior to her alleged onset of disability, with covered 21 earnings in 133 out of a possible 140 work quarters between 1980 through 2014, a total of 33 ¼ years.” 22 (Id., citing AR 161-62 [Doc. 9-6 at 11-12]) 23 “An ALJ is required to consider work history when assessing credibility.” Matthews v. 24 Berryhill, 2017 WL 3383118 at *12 (E.D. Cal. Aug. 7, 2017) (citing 20 C.F.R. § 404.1529(c)(3) and 25 Social Security Ruling 96-7p, 1996 SSR LEXIS 4). However, an ALJ’s findings related to a claimant’s 26 subjective statements will be upheld, even where all possible factors are not considered, if the ALJ’s 27 findings are “sufficiently specific to allow a reviewing court to conclude the ALJ rejected the 28 claimant’s testimony on permissible grounds and did not arbitrarily discredit the claimant’s testimony.” 1 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also Crane v. Shalala, 76 F.3d 251, 254 (9th 2 Cir. 1995) (“Although the findings upon which this determination was based were not as extensive as 3 they might have been, they sufficed to show that the ALJ did not arbitrarily reject [the claimant’s] 4 testimony.”). Thus, the Court must determine whether the error was harmless. See Stout v. Comm’r of 5 Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (finding error to be harmless when it was 6 inconsequential to the ultimate nondisability determination). 7 The ALJ addressed only Plaintiff’s testimony regarding her headaches and did not address her 8 statements regarding the extent of her side effects, Plaintiff’s reported difficulty with concentration, or 9 her need to avoid stressful situations. (See Doc. 9-3 at 25) Because the ALJ rejected these statements 10 without comment, the Court is unable to find the rejection was on permissible grounds. Thus, the Court 11 is unable to find the additional failure to consider Plaintiff’s positive work history was a harmless error. 12 See Moisa, 367 F.3d at 885; Stout, 454 F.3d at 1055. 13 B. Evaluation of the Medical Evidence 14 In this circuit, the courts distinguish the opinions of three categories of physicians: (1) treating 15 physicians; (2) examining physicians, who examine but do not treat the claimant; and (3) non- 16 examining physicians, who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830 17 (9th Cir. 1996). In general, the opinion of a treating physician is afforded the greatest weight but it is 18 not binding on the ultimate issue of a disability. Id.; see also 20 C.F.R. § 404.1527(d)(2); Magallanes 19 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Further, an examining physician’s opinion is given more 20 weight than the opinion of non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 21 1990); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 22 A physician’s opinion is not binding upon the ALJ, and may be discounted whether or not 23 another physician contradicts the opinion. Magallanes, 881 F.2d at 751. An ALJ may reject an 24 uncontradicted opinion of a treating or examining medical professional only by identifying a “clear and 25 convincing” reason. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or 26 examining professional may be rejected for “specific and legitimate reasons that are supported by 27 substantial evidence in the record.” Id., 81 F.3d at 830. When there is conflicting medical evidence, “it 28 is the ALJ’s role to determine credibility and to resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 1 579 (9th Cir. 1984). 2 Plaintiff asserts the ALJ erred in rejecting the opinions of Drs. Chen and Izzi—her treating 3 physician and an examining physician—both in evaluating the severity of Plaintiff’s mental 4 impairments at step two and identifying limitations in the residual functional capacity. (See generally 5 Doc. 18 at 19-35) Because their opinions were contradicted by Drs. Garcia, Morris, and Bhatia (see 6 Doc. 9-3 at 20 and 26), the ALJ was required to identify specific and legitimate reasons to reject the 7 limitations identified by Drs. Chen and Izzi. 8 1. Opinions of Dr. Chen 9 Plaintiff’s treating physician, Dr. Linda Chen, noted Plaintiff had a seizure in January 2014. 10 (Doc. 9-10 at 9) Plaintiff’s seizure included postictal confusion, amnesia, myalgias, and caused a 11 tongue laceration. (Id.) Dr. Chen continued to treat Plaintiff through 2015, during which time she 12 completed three statements related to Plaintiff’s limitations and abilities. (See Doc. 9-10 at 22-24; Doc. 13 9-11 at 70-72; Doc. 9-12 at 2-4) The ALJ addressed these statements as follows: 14 On March 17, 20143, Dr. Chen prepared a medical source statement in which she indicated that the claimant had been diagnosed with complex, partial epilepsy with a 15 good prognosis (Exhibit 4F, page 1). Symptoms consisted of “visual seizures, dizziness, debilitating anxiety, still with seizures, once per month.” She could stand, walk and sit 16 less than two hours due to dizziness. She must shift positions at will. She has no limitations related to reaching, handling or finger, and she has no postural limitations. 17 She is incapable of low stress jobs and would miss more than four days of work each month. 18 On June 24, 2014, at the claimant’s request, Dr. Chen completed a form for her 19 disability claim requested by her attorney. Dr. Chen wrote, “She essentially has been disabled because of the recurrent seizures and also significant anxiety and fear of having 20 seizures again. She has become very tearful[;] I recommended counseling. We can also discuss an SSRI in the future. For now she is using lorazepam for anxiety attacks. 21 Paperwork for disability claim filled in per (patient’s) request” (Exhibit 3F, page 9). 22 Dr. Chen completed a medical source statement on December 16, 2015 (Exhibit 9F). She indicated that the claimant had been diagnosed with epilepsy, chronic headaches 23 and anxiety, and that prognosis was “good in terms of epilepsy, guarded in terms of headaches and anxiety.[”] Symptoms consisted of “daily headaches punctuated with 24 severe headaches, anxiety, fatigue, poor short term memory.” Dr. Chen checked boxes indicating that the claimant can occasionally stand and walk and frequently sit. She 25 must shift positions at will. She can occasionally lift or carry less than ten pounds and rarely lift or carry ten pounds. She can rarely twist, stoop, crouch/squat or climb stairs 26 and never climb ladders. She has significant limitations in reaching, handling or 27 3 Although the ALJ repeatedly indicated this statement was completed on March 17, 2014, the statement was 28 dated June 24, 2014. (Doc. 9-10 at 24) At that time, Dr. Chen indicated the earliest date of the description and limitations 1 fingering due to dizziness. Her symptoms would constantly interfere with attention and concentration. She is incapable of even low stress jobs, as there was “persistence of 2 symptoms since 1/2014, memory difficulties, fatigue, pain.[”] She would miss more than four days of work each month. 3 4 (Doc. 9-3 at 25- 26) 5 The ALJ indicated he gave “reduced weight to the various opinions of Dr. Chen” for the 6 following reasons: 7 Dr. Chen’s various medical source statements contain conflicting statements as to limitations and the reasons for such limitations. Her March 17, 2014 [statement] 8 indicates she cannot sit for more than two hours, with no explanation, yet the December 16, 2015 statement indicates she can sit frequently. The March 17, 2014 statement 9 found no limitations with regard to reaching, handling and fingering, yet the December 16, 2015 statement found significant limitations in reaching, handling and fingering 10 “due to dizziness.” There is no adequate explanation as to why the claimant cannot lift more than ten pounds. These limitations, contained in check-the-box forms, are not 11 consistent with the evidence and cast doubt on the rest of the doctor’s opinions, which initially found disability due to seizures, later transitioning due headaches and anxiety 12 once the seizures were under control. Yet the doctor only mentioned counseling once, and the claimant would defer[] medication for headaches and just “lives with it” rather 13 than feel tired with Imitrex. 14 (Doc. 9-3 at 26) Plaintiff contends this rationale for rejecting the opinion of her neurologist “was 15 legally insufficient.” (Doc. 18 at 26) 16 a. Internal inconsistencies 17 The Ninth Circuit determined an opinion may be rejected where there are inconsistencies within 18 a physician's reports. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). 19 However, it is an error to read a treating physician’s notes “selective[ly]” rather than “in full and in 20 context.” Holohan v. Massanari, 246 F.3d 1195, 1204-05 (9th Cir. 2001). The Ninth Circuit determined 21 also that an ALJ cannot properly reject a treating physician's opinion as being “inconsistent” with his or 22 her treatment notes if the “inconsistency” is only, for instance, that the claimant showed improvement 23 during treatment. Id. 24 In Holohan, the ALJ rejected the treating physician’s opinion that the claimant suffered from 25 “marked” impairments with respect to “performance of any work activity due to anxiety/panic attacks 26 and poor concentration.” Holohan, 246 F.3d at 1204-05. The ALJ rejected the opinion as “totally 27 inconsistent with [the physician's] own treatment notes and records…” Id. The ALJ stated the treatment 28 notes “indicate[d] control of panic attacks” with medication; a “great improvement” in the claimant’s 1 condition; and the physician’s finding that the panic attacks increased with inactivity, such that she was 2 happy when she joined the YMCA. Id. Upon appeal, the Ninth Circuit found the ALJ erred in 3 rejecting the treating physician’s opinion on these grounds. Id. The Court found the ALJ was too 4 “selective” in his reliance on the treating physician’s notes, and “exaggerate[d]” the contents. Id. at 5 1205. The Court concluded the physician’s notes “must be read in context of the overall diagnostic 6 picture he draws.” Id; see also Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) 7 (citing Holohan and holding treatment notes reflecting a “improvement” did not undermine the 8 physician’s conclusions and diagnosis). 9 It appears the ALJ failed to consider changes in Plaintiff’s symptoms and reported side effects 10 from medication. Indeed, Dr. Chen identified additional diagnoses and symptoms in her statements, 11 which the ALJ failed to acknowledge when finding the statements included inconsistent limitations. 12 For example, in the June 2014 statement, Dr. Chen indicated only that Plaintiff was diagnosed with 13 “epilepsy, complex partial,” for which she had a good prognosis. (Doc. 9-10 at 22) Dr. Chen noted that 14 at that time, Plaintiff’s symptoms included seizures, dizziness, and anxiety. (Id.) However, in 15 December 2015, Dr. Chen noted Plaintiff’s diagnoses included “epilepsy, chronic headaches, [and] 16 anxiety.” (Doc. 9-12 at 2) The symptoms noted included “daily headaches, punctuated with severe 17 headaches, anxiety, fatigue, [and] poor short term memory.” (Id.) The ALJ failed to acknowledge the 18 change in diagnoses and impairments could result in the changes in the limitations identified and 19 instead rejected the opinions, in part, for the inconsistencies. 20 Furthermore, the ALJ failed to acknowledge consistencies within the opinions of Dr. Chen 21 related to Plaintiff’s ability to handle stress and complete a full month at work. For example, Dr. Chen 22 repeatedly indicated that Plaintiff was incapable of low stress jobs. (Doc. 9-10 at 24; Doc. 9-11 at 72; 23 Doc. 9-12) Also, in each opinion, Dr. Chen indicated a belief that Plaintiff was likely to miss more 24 than four days per month. (Id.) In April 2015, Dr. Chen noted her opinion that Plaintiff could not 25 handle low stress positions due to Plaintiff’s anxiety and vertigo. (Doc. 9-11 at 72) Finally, in 26 December 2015, Dr. Chen indicated that anxiety was a trigger for Plaintiff’s symptoms. (Doc. 9-12 at 27 2) 28 Given the ALJ’s failure to consider the medical source statements in the context—including 1 identified changes in Plaintiff’s diagnoses and symptoms—the inconsistencies identified do not support 2 the ALJ’s decision to reject the limitations identified by Dr. Chen. 3 b. Inconsistency with the record 4 An ALJ may reject limitations “unsupported by the record as a whole” and inconsistent with the 5 treatment a claimant received. Mendoza v. Astrue, 371 Fed. Appx. 829, 831-32 (9th Cir. 2010). 6 However, when an ALJ believes the treating physician’s opinion is unsupported by the objective 7 medical evidence, the ALJ has a burden to “set[] out a detailed and thorough summary of the facts and 8 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Cotton v. Bowen, 9 799 F.2d 1403, 1408 (9th Cir. 1986). For example, an ALJ may also discount the opinion of a treating 10 physician by identifying an examining physician’s findings to the contrary and identifying the evidence 11 that supports that finding. See, e.g., Creech v. Colvin, 612 F. App’x 480, 481 (9th Cir. 2015). 12 The ALJ concluded the limitations identified by Dr. Chen were “not consistent with the 13 evidence.” (Doc. 9-3 at 26) However, the ALJ failed to identify any objective evidence or clinical 14 findings that contradicted limitations identified by Dr. Chen and offered only his conclusion that the 15 limitations were not consistent with other evidence. This is not sufficient to carry the burden in 16 evaluating the evidence or addressing a conflict in the record. See Cotton, 799 F.3d at 1408; see also 17 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“The ALJ must do more than offer his 18 conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, 19 are correct.”). Consequently, the unidentified inconsistencies with the record do not support the ALJ’s 20 evaluation of the limitations from Dr. Chen. 21 c. Treatment from Dr. Chen 22 The ALJ appears to reject the statements from Dr. Chen, in part, on the grounds that the 23 treatment she provided was inconsistent with the limitations identified, because the ALJ observed: “the 24 doctor only mentioned counseling once, and the claimant would defer[] medication for headaches and 25 just ‘lives with it’ rather than feel tired with Imitrex.” (Doc. 9-3 at 26) However, as discussed above, 26 the ALJ failed to acknowledge the extent of Plaintiff’s side effects with Imitrex. The ALJ also does not 27 address the treatments discussed by Dr. Chen with Plaintiff, which included surgical intervention, when 28 Plaintiff decided to continue with her current regimen of medications, which included two “high dose” 1 medications for epilepsy. (See Doc. 9-13 at 40) Also, the ALJ fails to explain how the treatment 2 provided is inconsistent with the physical and mental limitations identified by Dr. Chen. Thus, this 3 factor does not support the ALJ’s decision to reject the limitations. See Cotton, 799 F.2d at 1408. 4 d. Conclusion 5 The ALJ failed meet his burden to “specific and legitimate reasons that are supported by 6 substantial evidence in the record” for rejecting limitations identified by Dr. Chen. See Lester, 81 F.3d 7 at 831. His error in evaluating the limitations both impacted the findings at step two related to the 8 severity of Plaintiff’s mental impairments, given the conclusions from Dr. Chen addressing Plaintiff’s 9 ability to handle stress, anxiety, and effect of her headaches. Likewise, this error impacted the residual 10 functional capacity at step four, where an ALJ must which must include “all of [a claimant’s] medically 11 determinable impairments,” whether severe or not. 20 C.F.R. § 404.1545(a)(2). 12 2. Opinion of Dr. Izzi4 13 Plaintiff contends the ALJ erred in evaluating the opinions of Dr. Roger Izzi, who performed a 14 consultative psychiatric evaluation in October 2014. (Doc. 18 at 31-35) Dr. Izzi observed that Plaintiff 15 “appeared appropriately dressed and groomed,” and her “level of consciousness was alert, and 16 responsive.” (Doc. 9-10 at 74) Plaintiff reported she had anxiety, would not go anywhere by herself, 17 and she forgot things. (Id. at 73) She said she stayed home and did not belong to any social 18 organizations, but family and friends would visit her. (Id. at 73) Dr. Izzi believed Plaintiff’s affect 19 seemed dysphoric, and Plaintiff reported feeling “[a]nxiety and fear.” (Id. at 74) Plaintiff was “able to 20 immediately recall three words without obvious difficulty” and “recall two of the three words” after a 21 delay. (Id.) Dr. Izzi noted Plaintiff “had no difficulty spelling the word ‘world’ forward and backward. 22 (Id.) Dr. Izzi diagnosed Plaintiff with “Unspecified Anxiety Disorder,” and opined Plaintiff’s “mood 23 disorder [would] fluctuate as she perceives changes in her physical condition. (Id. at 75) Dr. Izzi 24 concluded: 25 Clinical interview indicates that the claimant is not having any difficulty caring for basic hygiene. The present evaluation suggests that the claimant does appear capable 26 of performing a simple and repetitive type task on a consistent basis over an eight-hour period. Her ability to get along with peers or be supervised in work-like setting would 27 be moderately limited by her mood disorder. The claimant’s mood disorder can be 28 4 1 expected to fluctuate. Any significant fluctuation of mood would limit the claimant’s ability to perform a complex task on a consistent basis over an eight-hour period. On a 2 purely psychological basis, the claimant appears capable of responding to usual work session situations regarding attendance and safety issues. On a purely psychological 3 basis, the claimant appears capable of dealing with changes in a routine work setting. 4 (Id. at 75) 5 The ALJ reviewed these findings and indicated he gave the opinion of Dr. Izzi “reduced 6 weight.” (Doc. 9-3 at 20) The ALJ found: 7 The findings with regard to moderate limitations in getting along with others and limitations in regard to performing complex tasks are based on the subjective report of 8 the claimant and not supported by mental health treatment notes. There is little to suggest she has trouble getting along with others, as she has friends, is in a coffee group, 9 and attends church weekly. On several instances, the claimant denied mental symptoms, and she had no apparent difficulty testifying at the hearing and recalling events. The 10 lack of specialized psychiatric treatment, as well as her activities, leads me to conclude that this opinion is too restrictive. 11 12 (Id.) Thus, the ALJ rejected the limitations on the grounds that they were based upon Plaintiff’s 13 subjective reports, her level of activity, and the treatment Plaintiff received. The Ninth Circuit has 14 determined an ALJ may reject a physician’s opinion for each of the reasons identified by the ALJ, 15 where the reason is supported by evidence in the record. 16 a. Reliance upon Plaintiff’s subjective complaints 17 An ALJ may reject an opinion predicated upon “a claimant’s self-reports that have been 18 properly discounted as not credible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); see 19 also Fair, 885 F.2d at 605 (finding the ALJ identified a specific, legitimate reason for disregarding a 20 physician’s opinion “because it was premised on Fair’s own subjective complaints, which the ALJ had 21 already properly discounted.”) For example, in Tommassetti, the Court reviewed the physician’s 22 records, and found “they largely reflect[ed] Tommasetti’s reports of pain, with little independent 23 analysis or diagnosis.” Id., 533 F.3d at 1041. Because the ALJ found the claimant’s subjective 24 complaints lacked credibility, the Court concluded that “the ALJ’s adverse credibility determination 25 supports the limited rejection of [the physician’s] opinion because it was primarily based on 26 Tommasetti’s subjective comments concerning his condition.” Id. In contrast, as discussed above, the 27 ALJ failed to properly reject Plaintiff’s subjective complaints related to her concentration and anxiety. 28 Thus, this factor does not support the ALJ’s decision to give reduced weight to the opinion of Dr. Izzi. 1 b. Plaintiff’s level of activity 2 The Ninth Circuit determined an ALJ may reject an opinion when the physician identifies 3 restrictions that “appear to be inconsistent with the level of activity that [the claimant] engaged in.” 4 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); see also Fisher v. Astrue, 429 Fed. App'x 649, 5 652 (9th Cir. 2011) (concluding the ALJ set forth specific and legitimate reasons for rejecting a 6 physician's opinion where the assessment was based upon the claimants subjective complaints, and 7 limitations identified by the doctor conflicted with the claimants daily activities). 8 The ALJ found the conclusions of Dr. Izzi that Plaintiff’s “ability to get along with peers or be 9 supervised in work-like setting would be moderately limited by her mood disorder” to be inconsistent 10 with Plaintiff’s activities, because there was “little to suggest she has trouble getting along with others, 11 as she has friends, is in a coffee group, and attends church weekly.” (Doc. 9-3 at 20) The ALJ also 12 observed that Plaintiff was able to testify at the hearing and recall events. (Id.) Notably, however, Dr. 13 Izzi believed Plaintiff’s mood disorder should be expected to fluctuate (Doc. 9-10 at 75), which 14 indicates that her abilities would fluctuate as well. 15 Moreover, the ALJ fails to explain how Plaintiff’s ability to have her friends visit, go to coffee, 16 and attend church on a weekly basis is inconsistent with the findings related to Plaintiff’s ability to get 17 along with others—outside of her friends and family— on a daily basis. The ALJ also fails to make 18 any finding that Plaintiff engaged in the identified activities daily, or that she could do so on a sustained 19 basis during the workday. Consequently, the record does not support the ALJ’s conclusion that 20 Plaintiff’s level of activity is inconsistent with the conclusions of Dr. Izzi, and this factor does not 21 support the ALJ’s decision to give reduced weight to the opinion. 22 c. Plaintiff’s report of mental symptoms 23 The ALJ reports, without citing to any evidence, that Plaintiff “denied mental symptoms” on 24 several instances. (Doc. 9-3 at 20) However, the record reflects that Plaintiff repeatedly reported 25 anxiety. For example, in April 2014, Dr. Chen noted that Plaintiff had “significant anxiety which is 26 severe.” (Doc. 9-10 at 14) The following month, Dr. Chen noted that Plaintiff did not want to be alone 27 due to her seizures, and indicated Plaintiff had “developed separation anxiety since the development of 28 epilepsy.” (Id. at 16) Dr. Chen prescribed lorazepam to treat Plaintiff’s anxiety. (Id.) However, in 1 June 2014, Dr. Chen again observed that Plaintiff was suffering from “significant anxiety and fear of 2 having seizures again,” and had become “very tearful.” (Id. at 18) In addition, Plaintiff reported 3 “ongoing difficulty with short-term memory difficulty,” such as forgetting to pick up things at the store 4 and taking a medication both at night and in the morning that should have been taken once. (Doc. 9-11 5 at 15-16) Dr. Chen noted the memory problems were “multifactoral” and could be a medication side 6 effect, drowsiness, “or subtle partial seizures.” (Id. at 16) Plaintiff also continued to report short-term 7 memory problems in 2015. (See, e.g., Doc. 9-13 at 42) Thus, the record does not support the ALJ’s 8 assertion that Plaintiff denied mental symptoms. 9 d. Treatment received 10 The ALJ also gave less weight to the opinion of Dr. Izzi due to Plaintiff’s “lack of specialized 11 psychiatric treatment.” (Doc. 9-3 at 20) Although Plaintiff’s anxiety was treated with medication, she 12 did not receive counseling or psychotherapy, and the record supports the ALJ’s conclusion that Plaintiff 13 was not given specialized psychiatric treatment. However, the ALJ fails to explain how the lack of 14 treatment undermines Dr. Izzi’s objective findings and observations, such as Plaintiff’s inability to 15 recall all three words after a delay. (See Doc. 9-10 at 74) Consequently, this factor offers limited 16 support to the ALJ’s decision to give less weight to the limitations identified by Dr. Izzi. 17 e. Conclusion 18 The ALJ erred in evaluating several factors related to the opinion of Dr. Izzi, and his flawed 19 evaluation resulted in errors in evaluating the severity of Plaintiff’s mental impairments at step two, as 20 the mental limitations were not properly rejected. 21 C. Remand is Appropriate 22 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to 23 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 24 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 25 agency determination, the proper course is to remand to the agency for additional investigation or 26 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 27 12, 16 (2002)). Generally, an award of benefits is directed when: 28 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of 1 disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 2 3 Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed 4 where no useful purpose would be served by further administrative proceedings, or where the record is 5 fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 6 The Ninth Circuit explained that “where the ALJ improperly rejects the claimant’s testimony 7 regarding [her] limitations, and the claimant would be disabled if [her] testimony were credited,” the 8 testimony can be credited as true, and remand is not appropriate. Lester, 81 F.3d at 834. Importantly, 9 courts retain flexibility in crediting testimony as true, and may remand for further proceedings to 10 address a claimant’s statements regarding the severity of her symptoms. See, e.g., Bunnell, 947 F.2d at 11 348 (affirming the district court’s order remanding for further proceedings where the ALJ failed to 12 explain with sufficient specificity the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 13 60 F.3d 639, 642 (9th Cir. 1995) (remanding the case “for further proceedings evaluating the credibility 14 of [the claimant's] subjective complaints …”). Because the findings of the ALJ are insufficient to 15 determine whether Plaintiff’s statements regarding the severity of her symptoms should be credited as 16 true, the matter should be remanded for the ALJ to re-evaluate the evidence. 17 Further, the ALJ failed to resolve conflicts in the record related to the severity of Plaintiff’s 18 mental impairments and physical limitations. The failure to identify specific and legitimate reasons, 19 supported by substantial evidence, for rejecting limitations identified by Drs. Chen and Izzi was not 20 “inconsequential to the ultimate nondisability determination.” See Molina v. Astrue, 674 F.3d 1104, 21 1115 (9th Cir. 2012). Accordingly, upon remand the ALJ should also re-evaluate the medical evidence 22 related to the severity of Plaintiff’s mental impairments and her residual functional capacity. See 23 Moisa, 367 F.3d at 886. 24 CONCLUSION AND ORDER 25 For the reasons set for above, the Court finds the ALJ failed to apply the proper legal standards 26 related to evaluating Plaintiff’s statements and the limitations identified by Drs. Chen and Izzi. Thus, 27 the administrative decision should not be upheld by the Court. See Sanchez, 812 F.2d at 510. 28 /// 1 Accordingly, the Court ORDERS: 2 1. Defendant’s motion for summary judgment (Doc. 21) is DENIED; 3 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 4 proceedings consistent with this decision; and 5 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Marlene 6 Dodson, and against Defendant Andrew M. Saul, Commissioner of Social Security. 7 8 IT IS SO ORDERED. 9 Dated: March 25, 2020 /s/ Jennifer L. Thurston 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28