(SS) Campos v. Commissioner of Social Security ( 2023 )

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 SANDY MARIE CAMPOS, No. 1:21-cv-00827-GSA 5 Plaintiff, 6 v. OPINION & ORDER DIRECTING ENTRY 7 OF JUDGMENT IN FAVOR OF KILOLO KIJAKAZI, acting PLAINTIFF AND AGAINST DEFENDANT 8 Commissioner of Social Security, COMMISSIONER OF SOCIAL SECURITY 9 (Doc. 19, 21, 22) Defendant. 10 11 I. Introduction 12 Plaintiff Sandy Marie Campos (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her applications for 14 disability insurance benefits and supplemental security income pursuant to Titles II and XVI, 15 respectively, of the Social Security Act. The matter is before the Court on the parties’ briefs which 16 were submitted without oral argument to the United States Magistrate Judge.1 Docs. 19, 21–22. 17 After reviewing the record the Court finds that substantial evidence and applicable law do not 18 support the ALJ’s decision. Plaintiff’s appeal is therefore granted. 19 II. Factual and Procedural Background2 20 On September 28, 2018 Plaintiff applied for disability insurance benefits and supplemental 21 security income alleging a disability onset date of May 15, 2017. The applications were denied 22 initially on March 7, 2019 and on reconsideration on July 24, 2019. A hearing was held before an 23 Administrative Law Judge (the “ALJ”) on August 24, 2020. AR 55–77. On September 2, 2020 24 the ALJ issued an unfavorable decision. AR 16–27. The Appeals Council denied review on March 25 18, 2021. AR 1–7. On May 21, 2021 Plaintiff filed a complaint in this Court. 26 27 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 9 and 12. 2 The Court has reviewed the relevant portions of the administrative record including the medical, opinion and 28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant portions will be referenced in the course of the analysis below when relevant to the parties’ arguments. III. The Disability Standard 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 6 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 7 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 9 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). 10 When performing this analysis, the court must “consider the entire record as a whole and 11 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 12 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006). If the evidence could reasonably support two 13 conclusions, the court “may not substitute its judgment for that of the Commissioner” and must 14 affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). “[T]he court will 15 not reverse an ALJ’s decision for harmless error, which exists when it is clear from the record that 16 the ALJ’s error was inconsequential to the ultimate non-disability determination.” Tommasetti v. 17 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 18 To qualify for benefits under the Social Security Act, a plaintiff must establish that 19 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 20 last for a continuous period of not less than twelve months. 42 U.S.C. § 21 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 22 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 23 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 24 he would be hired if he applied for work. 42 U.S.C. §1382c(a)(3)(B). 25 To achieve uniformity in the decision-making process, the Commissioner has established a 26 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 27 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 28 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 2 gainful activity during the period of alleged disability, (2) whether the claimant had medically 3 determinable “severe impairments,” (3) whether these impairments meet or are medically 4 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 5 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 6 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 7 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 8 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 9 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 10 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 11 IV. The ALJ’s Decision 12 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 13 her alleged disability onset of May 15, 2017. AR 19. At step two the ALJ found that Plaintiff had 14 these severe impairments: spinal disorder, anxiety, and depression. AR 19. At step three the ALJ 15 found that Plaintiff had no impairment or combination thereof that met or medically equaled the 16 severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 19–20. 17 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 18 concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 416.967(b) with 19 a variety of physical restrictions not at issue and the following mental restrictions: simple, routine 20 tasks; occasional public contact; occasional teamwork; no jobs requiring hypervigilance or looking 21 after the safety of others; static work environment with no day to day variation in task performance 22 or physical surroundings; work mainly with objects not people; intermittent superficial contact with 23 the public; no intense interaction with people; and, a reasoning level no higher than two. AR 20– 24 25. 25 At step four the ALJ found that Plaintiff could not perform past work as a home health aid 26 or school bus monitor. AR 25. At step five the ALJ found that Plaintiff could perform other jobs 27 existing in significant numbers in the national economy: marker, garment sorter and bagger. AR 28 26. Accordingly, the ALJ found that Plaintiff was not disabled at any time since her alleged disability onset date of May 15, 2017. AR 26-27. 2 V. Issues Presented 3 Plaintiff asserts one claim of error: that the ALJ improperly rejected the opinion of Dr. 4 Nguyen, Plaintiff’s treating mental healthcare provider. 5 A. Dr. Nguyen’s Opinion 6 1. Applicable Law 7 8 Before proceeding to step four, the ALJ must first determine the claimant’s residual 9 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 10 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 11 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 12 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 13 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 14 A determination of residual functional capacity is not a medical opinion, but a legal decision 15 16 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 17 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 18 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 19 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 20 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. 21 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 22 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 23 24 such as medical records, lay evidence and the effects of symptoms, including pain, that are 25 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 26 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical 27 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 28 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 2 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 3 F.2d 1403, 1408 (9th Cir. 1986)). The RFC need not mirror a particular opinion; it is an assessment 4 5 formulated by the ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). 6 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 7 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight, 8 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 9 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating 10 any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 11 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 12 13 Supportability and consistency are the two most important factors and the agency will articulate 14 how the factors of supportability and consistency are considered. Id. 15 On April 22, 2022, the Ninth Circuit addressed whether the specific and legitimate 16 reasoning standard is consistent with the revised regulations, and clarified what explanatory 17 obligations still remain: 18 The revised social security regulations are clearly irreconcilable with our caselaw 19 according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We 20 will not defer or give any specific evidentiary weight, including controlling weight, 21 to any medical opinion(s) ..., including those from your medical sources.”). Our requirement that ALJs provide “specific and legitimate reasons” for rejecting a 22 treating or examining doctor's opinion, which stems from the special weight given to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the 23 revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily favors the evidence from 24 those sources—contrary to the revised regulations. 25 . . . Even under the new regulations, an ALJ cannot reject an examining or treating 26 doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” 27 it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 28 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, id. § 404.1520c(b)(2). 2 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 2. Analysis 3 Plaintiff’s treating clinical psychologist, Lananh Nguyen, Ph.D., completed a “Mental 4 5 Residual Functional Capacity Medical Source Statement” (MRFC questionnaire) on August 29, 6 2019. AR 406–409. Dr. Nyguen diagnosed generalized anxiety disorder. AR 406. Dr. Nguyen 7 opined that Plaintiff had work-preclusive limitations3 in the following areas: completing a normal 8 workday or workweek without interruptions from psychological based symptoms; performing at a 9 consistent pace without an unreasonable number and length of rest periods; get along with 10 coworkers and peers without distracting them or exhibiting behavioral extremes; and, traveling in 11 unfamiliar places or using public transportation. AR 407–08. Dr. Nguyen further opined that 12 13 Plaintiff’s mental health impairments would cause varying degrees of off task behavior, 14 absenteeism, and reduced productivity. AR 408. 15 Ultimately Dr. Nguyen opined within a reasonable degree of medical certainty that 16 Plaintiff’s mental health impairment would preclude her from obtaining and retaining competitive 17 full time employment for a continuous period of more than six months. AR 409. Dr. Nguyen based 18 the opinion on four therapy visits between August 10, 2017 and August 29, 2019. AR 406, 409. 19 The ALJ rejected the opinion, explaining as follows: 20 21 I do not find this opinion persuasive because it is inconsistent with and unsupported by the medical and other evidence. For example, it is inconsistent with subsequent 22 mental status examination findings, which showed the claimant was cooperative and oriented times four with a normal short and long-term memory, fluent speech, 23 coherent thought process, and average intellectual functioning (Exhibit 6F, pp. 4-6). The opinion is also inconsistent with and overrestrictive, especially in light of a July 24 2017 report from a primary care provider, showing a examination of the psychiatric 25 system was generally unremarkable and showed she was cooperative with a normal mood and affect (Exhibit 1F, p. 22). The opinion is also unsupported by Dr. 26 27 3 The MRFC check box questionnaire asks the source to evaluate a claimant’s abilities in 20 areas of mental functioning by checking a box corresponding to the level of limitation ranging from Category I (does not preclude performance of 28 any aspect of the job) to Category IV (precludes performance 15% or more of a workday). Dr. Nguyen checked the box corresponding to Category IV for 3 different abilities, and Category I for the remaining 17. Nguyen’s own report, which showed months between treatment contact (see Exhibit 2 5F, p. 1), and there are not a lot of treatment notes in the record. 3 The state agency disability determination service (DDS) physicians who reviewed 4 Plaintiff’s file at the initial and reconsideration levels provided no opinions as to her functional 5 capacity, but rather concluded the record was insufficient to make a determination. AR 81, 99– 6 101. The ALJ disagreed citing the same examination findings quoted above, findings which the 7 ALJ also relied upon in concluding at step three that Plaintiff had only mild to moderate limitations 8 9 in any area of mental functioning. The ALJ concluded that only some mental limitations were 10 warranted in consideration of Plaintiff’s “diagnosis of and treatment for a generalized anxiety 11 disorder (see Exhibits 2F, pp. 3, 7; 3F, pp. 1, 5; 7F, p. 1), depression (see Exhibit 7F, pp. 13, 21) 12 and posttraumatic stress disorder (PTSD) (see Exhibit 6F, p. 7).” AR 24. 13 Initially, Plaintiff questions the ALJ’s reliance on a July 12, 2017 visit noting normal mood 14 and affect. AR 323. Plaintiff observes that the visit was for chest tightness and breathing 15 difficulties, physical symptoms which she contends manifest internal angst. She contends that a 16 17 complete mental status examination was not performed, that the findings related to mood and affect 18 were cursory and isolated, and that they were not representative of her mental health throughout 19 the relevant period where later evidence demonstrates a “downhill slide.” Br. at 6-10, Doc. 19. 20 Notably, the ALJ described the July 12, 2017 visit as a primary care visit, despite the 21 conspicuous notation at the bottom of each page appearing in all caps, “EMERGENCY 22 DEPARTMENT NOTE.” The visit notes themselves are not entirely clear on the reason for the 23 visit The chief complaint is listed as “tightness in chest with diff. breathing,” but the “initial 24 25 comments” section for that visit notes only chest tightness “and a headache” with no mention of 26 breathing difficulties. AR 322. The review of systems confusingly states that she denied shortness 27 of breath, which directly contradicts the chief complaint. AR 323. The examination of her lungs 28 showed normal breathing. Id. The discharge diagnosis was acute anxiety syndrome for which Xanax was prescribed. AR 327. 2 Importantly, the July 12, 2017 visit was not a persuasive example for the ALJ to cite as 3 demonstrative of Plaintiff’s generally unremarkable psychiatric presentation. The visit likewise 4 5 was not a persuasive basis to reject Dr. Nguyen’s opinion concerning Plaintiff’s mental limitations. 6 This visit was an isolated instance at the very beginning of the 3-year relevant period and does not 7 reflect a complete mental status examination. 8 Defendant counters that, given the limited number of psychiatric examinations in the record, 9 the ALJ appropriately emphasized the findings in this visit even though the findings were limited 10 to cooperative behavior with normal mood and affect. But it is precisely because there were so few 11 examinations in the record that the ALJ’s accurate and complete characterization of the same was 12 13 important. The ALJ’s incorrect description of the visit as a primary care visit, and omission of any 14 discussion of the discharge diagnosis, suggests the context of the visit was largely misunderstood 15 by the ALJ. It was an emergency department visit for chest tightness (at a minimum) and, 16 notwithstanding the seemingly benign psychiatric findings of cooperative behavior with normal 17 mood and affect, the discharge diagnosis was acute anxiety syndrome for which a benzodiazepine 18 was prescribed. On balance, the visit neither strongly supports nor undermines the existence of 19 work preclusive mental limitations. 20 21 Plaintiff equally disputes the ALJ’s reliance on the records from the Porterville Adult Clinic 22 and assessment by LMFT Pendley, which Plaintiff contends the ALJ did not fairly summarize. Br. 23 at 8. The assessment in question was dated February 19, 2020. The ALJ found that this assessment 24 undermined Dr. Nguyen’s opinion because “the claimant was cooperative and oriented times four 25 with a normal short and long-term memory, fluent speech, coherent thought process, and average 26 intellectual functioning.” AR 23 (citing AR 413–15). 27 28 Plaintiff contends that “the mental status examination described far more aspects of Campos’s presentation.” Br. at 7-8. Plaintiff describes her traumatic history and her symptoms as 2 she reported them to LMFT Pendley, such as abusive relationships, loss of a loved one, loss of 3 interest in activities, hypervigilance, intrusive thoughts, and distressing dreams. Id. 4 5 Although these subjective statements are certainly relevant considerations, they are not 6 aspects of a mental status examination as Plaintiff contends. Admittedly, the line between objective 7 and subjective considerations is often blurry in the mental health treatment context (and further 8 blurred by the lack of clear section headings in LMFT Pendley’s notes). However, a mental status 9 examination (MSE) is at least one component of the mental health visit which is largely objective. 10 An MSE consists mostly of observations of the individual’s presentation from the provider’s point 11 of view (such as speed and accuracy of immediate and remote recall, coherence of thought content, 12 13 pattern of speech, impression of intellectual functioning, etc). The MSE results do not include the 14 recitation of the individual’s self-reported symptoms and experiences (such as family tragedy, 15 distressing dreams, intrusive thoughts). Moreover, the latter are not readily translatable into 16 concrete work restrictions. As such, ALJ’s tend to rely on the MSE findings, as the ALJ did here. 17 However, the MSE findings here from LMFT Pendley were not unremarkable. They did 18 include objective abnormalities such as slow motor activity with a flattened affect. AR 413. The 19 ALJ did acknowledge those two abnormalities at the beginning of her summary of the mental health 20 21 evidence, but then omitted them later in the decision when providing reasons for rejecting Dr. 22 Nguyen’s opinion. At that point the ALJ focused only on the normal findings and not on the 23 abnormalities. This is not harmful error in and of itself given the ALJ’s entire decision is subject to 24 consideration, and the ALJ need not necessarily reiterate all pertinent facts at each applicable 25 juncture of the opinion. 26 Importantly though, there was an additional objective abnormality the ALJ either 27 28 overlooked or mischaracterized. Here, the ALJ’s characterization of “normal short and long term memory” is only half correct. LMFT Pendley found that short term memory was normal but long 2 term memory showed “delayed recall.” AR 413. In sum, Plaintiff’s contention is valid in that the 3 ALJ mischaracterized the results of LMFT Pendley’s assessment, though not necessarily for the 4 5 reasons Plaintiff articulates. 6 The ALJ also found that Dr. Nguyen’s opinion “was unsupported by Dr. Nguyen’s own 7 report, which showed months between treatment contact . . ..” AR 23 (citing AR 409) (emphasis 8 added). Granted, Dr. Nguyen did base the opinion on only four visits with Plaintiff over a two year 9 period. Frequency of examinations is a relevant factor to be considered when evaluating the 10 opinion evidence. 20 C.F.R. § 404.1520c(c)(3)(ii). But supportability is a distinct factor and, 11 together with consistency, is the chief factor to consider under the regulations when evaluating 12 13 opinion evidence. See 20 C.F.R. § 404.1520c(a) (noting that supportability and consistency are 14 “the most important factors” when evaluating opinion evidence and the agency “will articulate” 15 how they are considered.) (emphasis added). An ALJ’s analysis of the opinion evidence falls short 16 unless it is well rooted in the factors of supportability and consistency. In other words, an ALJ 17 cannot repackage “frequency of examinations” as a discussion of supportability when frequency of 18 examinations is a distinct subordinate consideration under the regulations. 19 In addition, the ALJ rejected Dr. Nguyen’s opinion because there were “not a lot of 20 21 treatment notes in the record,” Id. Defendant interprets the ALJ’s finding as suggesting an “overall 22 lack of psychiatric treatment.” Resp. at 7. These two statements are not interchangeable and, in 23 any case, neither statement is factually accurate. The accurate statement is that there were not many 24 mental status examinations in the record. 25 Notwithstanding the lack of mental status examinations in the record, there was ample 26 evidence of psychiatric treatment and associated treatment notes. The relevant records are from 27 28 Sequoia Family Medical Center dated between January 2017 and May of 2020, AR 329-403; 417- 1 437. Although the treatment notes are mostly handwritten and a significant portion thereof are 2 borderline illegible, they do appear to reflect fairly routine visits during that time period for 3 4 generalized anxiety disorder, PTSD and depression. Below is a brief overview of those visits with 5 || a description of the pertinent portions of the treatment notes as best the Court can make out the 6 || handwriting: 7 e 6/20/17 visit discussing anxiety and prescribing Buspar (AR 354) g e 8/1/17 visit diagnosing anxiety, discontinuing Xanax, prescribing Klonopin (AR 352) 9 e 8/10/2017 visit discussing anxiety; partial mental status examination; negative for suicidal ideation, negative for auditory or visual hallucinations; negative for 10 delusions; negative for delusions; positive for [illegible]; medication side effects; and managing dosage of Buspar, Klonopin (AR 351) e 9/20/17 follow up for anxiety; alert and oriented times 3 (AR 349) 12 e 11/3/17: follow up; alert and oriented times 3; symptoms of fatigue, low appetite (AR 347) 13 e 12/4/17: medication management, Klonopin, weight loss (AR 345) 14 e 2/15/18: depression (AR 340) e 3/16/18: follow up for depression and anxiety (AR 339) 15 e 4/25/28: same (AR 337) e 6/2/18: anxiety and Klonopin management (AR 335) 16 © 8/30/18: same (AR 333) 17 e 10/26/18: same (AR 331) e 11/18/18: same; agoraphobia, past trauma; PTSD (AR 330) 18 © 8/16/19 to 5/28/20: GAD management (AR 417 to 437) 19 There were no complete mental status examinations and the partial examinations are not 20 entirely legible. As such, it is not specifically clear upon what objective basis, if any, the diagnoses 21 were made and the basis upon which prescriptions were issued. Nevertheless, contrary to 22 33 Defendant’s contention, there is indeed an extensive treatment history for Plaintiff's psychiatric 4 impairments. However, that history in this case does not readily facilitate the ALJ’s assigned task 25 || of weighing that evidence and translating the same into a concrete RFC. In such situations the 26 || agency often develops the record with a consultative examination, which was not done here. 27 The ALJ’s duty to further develop the record is triggered where the evidence is ambiguous 28 or inadequate to allow for proper evaluation. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 1] 2001); Tonapetyan, 242 F.3d at 1150. A specific finding of ambiguity or inadequacy in the record 2 is not required to trigger the necessity to further develop the record where the record itself 3 establishes the ambiguity or inadequacy. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011); 4 5 Garcia v. Comm’r of Soc. Sec., No. 1:19-CV-00545-SAB, 2020 WL 1904826, at *13 (E.D. Cal. 6 Apr. 17, 2020). 7 The state agency physicians who reviewed Plaintiff’s file at the initial and reconsideration 8 levels concluded the record was inadequate to render a determination. AR 81, 99. They also 9 suggested that the inadequacy of the record was a problem of Plaintiff’s own making as she was 10 non-responsive to requests to complete forms, and non-responsive to calls made “to schedule the 11 exams,” ostensibly referencing a consultative exam. The ALJ did not adopt those findings, 12 13 however, or otherwise suggest that Plaintiff was to blame for the alleged ambiguity or inadequacy 14 of the record. 15 Rather, the ALJ disagreed that the record was inadequate finding that “evidence received at 16 the hearing level” was sufficient to render a mental RFC, “especially in light of a primary care 17 provider, showing she was cooperative with a normal mood and affect (Exhibit 1F, p. 22),” and in 18 light of the records from Sequoia Family Health Care documenting diagnosis and treatment for 19 anxiety, PTSD, and depression. AR 24. 20 21 While an ALJ is not required to be held to the state agency doctors’ conclusions as to the 22 adequacy of the record, here the ALJ’s articulated basis for disagreeing with their conclusions is 23 not supported. As to the primary care visit noting normal mood and affect: 1) as noted above, that 24 was an emergency department visit, not primary care; 2) the state agency doctors did review that 25 exhibit (thus it was not new evidence received at the hearing level as the ALJ suggested); and, 3) 26 notwithstanding the findings of cooperative behavior with normal mood and affect, the state agency 27 28 doctors noted that the diagnosis was acute anxiety syndrome (they did not discuss the findings of normal mood and affect). AR 81, 98. Thus, they did not draw the inference the ALJ drew about 2 the visit being exemplary of “generally unremarkable” psychiatric presentation. 3 As to the Sequoia Family Health records, the state agency doctors did review those records. 4 5 They were not novel evidence received at the hearing level as the ALJ suggested. The novel 6 evidence at the hearing level were the records from the Porterville Adult Clinic and the February 7 2020 mental status examination by LMFT Pendley.4 However, that MSE was not entirely benign. 8 It included two abnormalities the ALJ observed (slow motor activity, flattened affect) and two the 9 ALJ did not observe (delayed long-term recall and underweight appearance). AR 413. 10 Thus the mixed findings contained in the February 2020 exam would not necessarily 11 support the existence of work preclusive limitations as opined by Dr. Nguyen. Nevertheless, mixed 12 13 findings on one exam is insufficient to serve as a standalone basis for the ALJ to override the 14 judgment of not only Dr. Nguyen, but also the state agency doctors who found the record inadequate 15 to render a mental RFC determination. 16 In discussing the state agency doctors’ finding regarding inadequacy, Defendant again 17 suggests that it could be explained by Plaintiff’s “lack of psychiatric treatment.” Defendant makes 18 that point on three occasions, and not only presents that characterization as her own interpretation 19 of the evidence, but also imputes that characterization to the ALJ and the agency doctors. See Resp. 20 21 at 6, 7, 8. Again, the ALJ did not make that observation, the agency doctors did not make that 22 23 4 It is worth briefly noting that, contrary to Plaintiff’s suggestion, the ALJ is not per se unqualified to interpret novel evidence received at the hearing level. Plaintiff cites the oft-quoted prohibition of an ALJ interpretating “raw medical 24 data” and translating the same into functional terms. That principle is most often applied to complex laboratory, imaging, or other diagnostic findings, not to mental status examination results which are largely stated in laymen’s 25 terms. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (finding the ALJ was unqualified to independently interpret MRI results). Moreover, there is always a gap in time between the agency level review and the hearing 26 decision, and claimants often continue pursuing care in the interim and generating additional records. Thus, an ALJ is almost always tasked with performing some independent review of medical evidence that was never considered by one 27 of the agency’s reviewing physicians and translating the same into an RFC. This is consistent with the ALJ’s role as characterized by the Ninth Circuit. See Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015), (“[T]he 28 ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.”). The agency may (not must) order a consultative examination to resolve ambiguity or insufficiency. 20 C.F.R. § 404.1519. observation, and that is not an accurate observation. The accurate observation is that there was a 2 lack of mental status examinations. 3 To briefly summarize again, the record contains: 1) a treatment history from Sequoia Family 4 5 Health Care dated throughout the relevant period documenting psychiatric diagnoses, routine visits, 6 and psychotropic medication management including benzodiazepines (albeit unaccompanied by 7 any mental status examination or opinion); 2) a mental status examination from LMFT Pendley at 8 Porterville Adult Clinic documenting a mix of normal and abnormal findings (albeit 9 unaccompanied by a treatment history or opinion); and, 3) an opinion from Plaintiff’s clinical 10 psychologist Dr. Nguyen based on four visits (albeit unaccompanied by a mental status examination 11 or treatment history). 12 13 This is not a case where the Plaintiff lacked significant treatment history, abnormal mental 14 status examination findings, or the opinion of a treating provider. Although each one came from a 15 different source, all three were present and supportive (in varying degrees) of mental limitations. 16 Granted, as Defendant contends: 1) the ALJ did account for mental limitations to some extent in 17 the RFC; 2) the ALJ is not per se unqualified to do so independently; and, 3) the RFC need not 18 mirror any particular opinion because it is an administrative finding reserved for the commissioner. 19 But it is a rare case where an RFC is formulated without the support of an opinion from a 20 21 reviewing or examining source such as a state agency physician or consultative examiner. As such, 22 Dr. Nguyen’s treating source opinion was the only statement from a medical professional as to the 23 nature and extent of Plaintiff’s mental limitations. The ALJ’s rejection thereof was harmful error. 24 Remand is therefore appropriate for the ALJ to order a review and/or examination by a 25 medical professional to opine on the nature and extent of Plaintiff’s mental limitations. See Benecke 26 v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Generally when a court . . . reverses an 27 28 administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). 2 VI. Order 3 For the reasons stated above, the Court finds that substantial evidence and applicable law 4 5 do not support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal 6 from the administrative decision of the Commissioner of Social Security is granted. The Clerk of 7 Court is directed to enter judgment in favor of Plaintiff Sandy Marie Campos and against Defendant 8 Kilolo Kijakazi, Commissioner of Social Security. 9 10 IT IS SO ORDERED. 11 12 Dated: January 20, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28