Maykowski v. Saul ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 LAUREN E. M., Case No. 19-cv-01983-JSC 7 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 8 v. SUMMARY JUDGMENT 9 ANDREW SAUL, Comm’r of Soc. Sec. Re: Dkt. Nos. 13, 14 Admin., 10 Defendant. 11 12 Plaintiff seeks social security benefits for a combination of mental impairments including 13 adjustment disorder with depressed mood and post-traumatic stress disorder. In accordance with 14 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final decision by the 15 Commissioner of Social Security denying her benefits claim. Under 28 U.S.C. § 636(c), the 16 parties consented to the jurisdiction of a magistrate judge and submitted requests for summary 17 judgment. (Dkt. Nos. 8, 10.) Because the Administrative Law Judge rejected a Department of 18 Veteran Affairs disability determination without support by substantial evidence and improperly 19 weighed certain medical evidence, the Court GRANTS Plaintiff’s motion, DENIES Defendant’s 20 cross-motion, and REMANDS for further proceedings consistent with this Order. 21 BACKGROUND 22 Plaintiff filed an application for disability insurance benefits under Title II of the Social 23 Security Act on December 14, 2016, alleging a disability onset date of March 1, 2011. 24 (Administrative Record (“AR”) 267–68.) After her application was denied initially and upon 25 reconsideration, she submitted a written request for a hearing and Administrative Law Judge 26 (“ALJ”) Michael A. Cabotaje held a hearing on May 17, 2018. (AR 32, 47–67.) Prior to the 27 hearing, the ALJ ordered a consultative examination of Plaintiff because the medical record 1 contained only one other consultative examination. (AR 51.) The ALJ offered to postpone the 2 hearing until after the examination, however, the Plaintiff declined to postpone the hearing. (Id.) 3 On October 12, 2018, the ALJ issued a decision finding that Plaintiff was not disabled. (AR 33.) 4 In his decision, the ALJ found Plaintiff had filed a previous application for disability 5 benefits, which was denied upon reconsideration on December 27, 2012. (AR 111–17.) Due to 6 the prior application, the ALJ held that the relevant time period at issue in this matter—the 7 unadjudicated period—is from the day after the previous denial upon reconsideration, December 8 28, 2012, through the date last insured of March 31, 2016. (AR 32.) The ALJ determined that 9 Plaintiff had the severe impairments of adjustment disorder with depressed mood and post- 10 traumatic stress disorder (“PTSD”). (AR 34.) Further, the ALJ found that these severe 11 impairments “significantly limit[ed] the ability [of Plaintiff] to perform basic work activities . . . .” 12 (AR 35.) But, the ALJ concluded that these severe impairments—considered individually and in 13 combination—did not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, 14 Subpart P, Appendix 1. (AR 35–36.) The ALJ then determined Plaintiff had the residual 15 functional capacity (“RFC”) to: 16 perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant was able to understand, remember, and apply 17 information with simple two to three step tasks in a setting without fast-paced performance demands. She was able to make simple decisions; have superficial 18 interaction with others; and tolerate occasional changes in a routine work setting. 19 (AR 36.) 20 After the ALJ’s decision, Plaintiff filed a request for review. (AR 264–66.) The Appeals 21 Council denied review—making the ALJ’s decision final—and Plaintiff sought review in this 22 Court. (Dkt. No. 1.) In accordance with Civil Local Rule 16-5, the parties filed cross-motions for 23 summary judgment, which are now ready for decision without oral argument. (Dkt. Nos. 13, 14.) 24 ISSUES FOR REVIEW 25 1. Did the ALJ err by rejecting Plaintiff’s Department of Veterans Affairs (“VA”) disability 26 determination? 27 2. Did the ALJ err by finding that a gap in Plaintiff’s mental health treatment indicated a 1 3. Did the ALJ err in weighing the medical evidence, not fully developing the record, and 2 finding that Plaintiff’s severe impairments did not meet or medically equal one of the listed 3 impairments? 4 4. Is the ALJ’s RFC supported by substantial evidence? 5 LEGAL STANDARD 6 Claimants are considered disabled under the Social Security Act if they meet two 7 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 8 First, the claimant must demonstrate an “inability to engage in any substantial gainful activity by 9 reason of any medically determinable physical or mental impairment which can be expected to 10 result in death or which has lasted or can be expected to last for a continuous period of not less 11 than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be 12 severe enough that they are unable to do their previous work and cannot, based on age, education, 13 and work experience “engage in any other kind of substantial gainful work which exists in the 14 national economy.” 42 U.S.C. § 423(d)(2)(A). In determining disability, an ALJ employs a five- 15 step sequential analysis, examining: 16 (1) whether the claimant is doing substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or 17 combination of impairments that has lasted for more than 12 months; (3) whether the impairment meets or equals one of the listings in the regulations; (4) whether, given 18 the claimant’s residual functional capacity, the claimant can still do his or her past relevant work; and (5) whether the claimant can make an adjustment to other work. 19 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (internal quotation marks omitted). 20 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 21 substantial evidence or it is based on legal error. Substantial evidence means such relevant 22 evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. 23 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks and citation omitted). 24 Where evidence is “susceptible to more than one rational interpretation,” a reviewing court must 25 uphold the ALJ’s conclusion. Id. In other words, “[i]f the evidence can reasonably support either 26 affirming or reversing, the reviewing court may not substitute its judgment for that of the [ALJ].” 27 1 citation omitted). But, “a decision supported by substantial evidence will still be set aside if the 2 ALJ did not apply proper legal standards.” Id. 3 DISCUSSION 4 A. The VA Disability Determination 5 Plaintiff contends the ALJ erred by rejecting the VA disability determination without 6 giving specific and valid reasons for doing so. When assessing disability, an ALJ must consider 7 any VA determinations and ordinarily must assign such determinations great weight. Luther v. 8 Berryhill, 891 F.3d 872, 876 (9th Cir. 2018). An ALJ may only give less than great weight to a 9 VA determination if the ALJ gives “persuasive, specific, [and] valid reasons for doing so that are 10 supported by the record.” Id. at 876–77. Plaintiff’s VA determination diagnosed Plaintiff with 11 PTSD, assessed her a Global Assessment of Functioning (“GAF”) score of 40, and included a VA 12 disability rating of 100% for her PTSD. (AR 304.) GAF scores in the range of 31-40 indicate 13 “some impairment in reality testing or communication; or major impairment in several areas, such 14 as work or school, family relations, judgment, thinking, or mood.” (Id.) The VA determination 15 also rated Plaintiff as “permanently and totally disabled effective July 5, 2011.” (AR 295.) After 16 reviewing the VA determination, the ALJ found Plaintiff’s “identified medically determinable 17 impairment of PTSD consistent with the record.” (AR 38.) Despite this finding, the ALJ rejected 18 the VA disability determination for three reasons. 19 First, the ALJ rejected the VA determination “given the different standards of the [Social 20 Security and Veterans Affairs disability] programs.” (Id.) This rationale conflicts with the Ninth 21 Circuit’s holding of “marked similarity” between the two programs and its consequent 22 requirement that an ALJ “ordinarily give great weight to a VA determination of disability.” 23 Luther, 891 F.3d at 876. Further, binding Ninth Circuit law—ignored by Defendant—requires the 24 ALJ to give great weight to the VA determination unless the ALJ provides persuasive, specific, 25 and valid reasons for not doing so. Luther, 891 F.3d at 876–77. Given this binding law, 26 differences between the two programs cannot be the basis for rejecting the VA determination, as 27 those differences exist in every case. Defendant’s attempt to fault Plaintiff for not conducting her 1 statement of differences between the two programs is unpersuasive. Even assuming those 2 differences could be a valid rationale, Defendant cannot rely on post hoc rationalizations that go 3 beyond the “reasoning and factual findings” given by the ALJ. Bray v. Comm'r of Soc. Sec. 4 Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). 5 Second, the ALJ rejected the VA determination because it was “issued within the prior 6 period of adjudication and for which res judicata applies.” (AR 38.) The VA determination rated 7 Plaintiff as totally and permanently disabled as of July 2011, six months prior to the start of the 8 unadjudicated period in this matter, and VA ratings of permanent disability are only issued when 9 an impairment results, as here, in total disability and that impairment is “reasonably certain to 10 continue throughout the life of the disabled person.” 38 C.F.R. § 3.340(b). While the ALJ is 11 correct that the VA determination was issued during the prior adjudicated period, res judicata only 12 extends up to the date of the prior determination—December 27, 2012. The ALJ did not and 13 could not apply res judicata prospectively to the unadjudicated period at issue and failed to 14 provide any reason for why the VA determination of permanent disability should not be 15 considered with respect to the unadjudicated period. Defendant again provides several post-hoc 16 rationalizations to support the ALJ’s finding, however, this posturing is unacceptable because the 17 ALJ did not provide any of Defendant’s reasoning in his decision. Bray, 554 F.3d at 1225. 18 Third, the ALJ rejected the VA determination as not representing longitudinal evidence of 19 any limitations because Plaintiff did not receive mental health treatment during the unadjudicated 20 time period at issue in this matter. (AR 38.) The VA determination that Plaintiff suffered from a 21 permanent disability, however, does represent some longitudinal evidence of limitations. What 22 the ALJ seems to be saying is that the VA determination of permanent disability is not consistent 23 with Plaintiff’s lack of treatment during the unadjudicated period at issue. Whether this reason 24 constitutes a persuasive, specific, and valid reason for rejecting the VA disability determination 25 turns, then, on Plaintiff’s failure to obtain mental health treatment during the period at issue. 26 The ALJ found no evidence of Plaintiff’s mental health treatment during the unadjudicated 27 time period at issue and concluded that her lack of treatment suggested Plaintiff’s PTSD was 1 mental health treatment. First, the VA informed Plaintiff they could no longer meet her needs due 2 to an influx of new patients. (AR 59.) Second, she had a general distrust of the VA because of the 3 negative experiences of her brother during his VA treatment for PTSD. (AR 60–61.) Third, 4 Plaintiff did not want to take any medication for PTSD because of her belief that her brother had 5 taken similar medication that led to his death by suicide. (Id.) Fourth, she feared being re- 6 committed to the acute psych ward, which occurred previously after suffering an anxiety attack at 7 work. (AR 60, 723.) Finally, she lost her VA insurance and did not have other insurance to 8 continue treatment. (AR 60–61.) Confusingly, the ALJ opined that the reasons given by the 9 Plaintiff “could [all] be reasonable explanations” yet still rejected her testimony because it was 10 unsupported by the record. (AR 37.) To properly support the rejection of Plaintiff’s testimony, 11 the ALJ needed to provide clear and convincing reasons for the testimony he found not credible 12 and explain “which evidence contradicted that testimony.” Laborin v. Berryhill, 867 F.3d 1151, 13 1155 (9th Cir. 2017). 14 The ALJ’s only evidentiary support for rejecting Plaintiff’s explanations for the gap in 15 treatment is a solitary treatment record stating Plaintiff “was being treated for PTSD . . . then VA 16 terminated her treatment, as they had more severe cases.” (AR 1099.) Using this lone snippet, 17 along with an absence of emergency room visits or medication treatment for Plaintiff in the record, 18 the ALJ rejected Plaintiff’s explanations for the gap in treatment. (AR 37.) This is unavailing 19 because while an ALJ may consider lack of treatment in determining a plaintiff’s credibility, 20 Burch, 400 F.3d at 681, an ALJ must also “consider and address reasons for not pursuing 21 treatment that are pertinent to an individual’s case,” including lack of medical insurance. SSR 16- 22 3P, 2017 WL 5180304 *10 (Oct. 25, 2017). Further, a lack of emergency room visits or 23 medication treatment in the record cannot be a clear and convincing reason for rejecting Plaintiff’s 24 testimony because the absence would exist independent of whether or not Plaintiff had pertinent 25 reasons for not pursuing treatment. 26 The ALJ erred by failing to analyze Plaintiff’s testimony regarding her lack of insurance 27 because Plaintiff’s “failure to receive medical treatment during the period that [s]he had no 1 638 (9th Cir. 2007). Here, the ALJ needed to analyze the reasons why Plaintiff did not pursue 2 treatment. The ALJ did not. Thus, the gap in treatment is not a persuasive, valid and specific 3 reason for rejection of the VA determination. 4 Defendant’s citation to Valentine v. Comm’r SSA, to support its argument that the ALJ 5 properly rejected the VA determination because of the gap in treatment is unpersuasive. 574 F.3d 6 685, 695 (9th Cir. 2009). Valentine did not address the rejection of a VA determination due to a 7 gap in treatment, but instead addressed an ALJ’s rejection of a VA determination because the ALJ 8 discredited the medical opinion on which the VA determination rested. Defendant’s reliance on 9 Lerch v. Colvin, is similarly unavailing. 583 F. App’x 608, 609 (9th Cir. 2014) (unpublished). In 10 Lerch, the ALJ also rejected a VA determination because the ALJ disagreed with the findings of 11 the doctor on which the VA determination rested. 12 Accordingly, the ALJ failed to provide specific, clear and convincing reasons supported by 13 substantial evidence for rejecting Plaintiff’s VA disability determination. 14 B. The Listed Impairments 15 Plaintiff next contends the ALJ erred in finding that Plaintiff’s PTSD did not meet or equal 16 the severity of one of the listed impairments because the ALJ improperly rejected the VA 17 disability determination and the medical opinion evidence of Drs. Tanley and Dixit. In making 18 this determination, the ALJ considered the four broad areas of mental functioning—the Paragraph 19 B criteria—set out in the disability regulations for evaluating mental disorders. The ALJ found 20 that Plaintiff’s PTSD did not result in marked limitations in two out of the four areas of mental 21 functioning, which is a requirement to satisfy the Paragraph B criteria. Plaintiff challenges the 22 ALJ’s weighing of the medical opinion evidence from Drs. Tanley and Dixit, arguing that if the 23 opinions had been properly weighed, the ALJ would have determined that Plaintiff met one of the 24 listings because both doctors diagnosed Plaintiff with PTSD and assessed Plaintiff with marked 25 limitations in at least two of the four areas of mental functioning. The Court earlier discussed the 26 improper rejection of the VA disability determination and agrees that Dr. Dixit’s opinion was 27 improperly weighed. But, the Court concludes that the ALJ did not err in discounting the opinion 1 In the Ninth Circuit, courts must “distinguish among the opinions of three types of 2 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do 3 not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 4 claimant (non[-]examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as 5 amended (Apr. 9, 1996)). A treating physician’s opinion is entitled to more weight than that of an 6 examining physician, and an examining physician’s opinion is entitled to more weight than that of 7 a non-examining physician. Orn, 495 F.3d at 631. “[T]he opinion of an examining [physician], 8 even if contradicted by another [physician], can only be rejected for specific and legitimate 9 reasons that are supported by substantial evidence in the record,” and the ALJ “must provide clear 10 and convincing reasons for rejecting the uncontradicted opinion of an examining physician.” 11 Lester, 81 F.3d at 830–31 (internal quotation marks omitted). And, “[a]n impairment or 12 combination of impairments may be found not severe only if the evidence establishes a slight 13 abnormality that has no more than a minimal effect on an individual's ability to work.” Webb v. 14 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal quotation marks omitted). 15 1) Dr. James Tanley 16 Dr. Tanley examined Plaintiff in October 2012—two months prior to the relevant 17 adjudicated time period—and diagnosed her with PTSD and adjustment disorder with depressed 18 mood. (AR 39.) The ALJ rejected Dr. Tanley’s opinion for three reasons: (1) the exam occurred 19 before the relevant adjudicated time period, (2) the opinion did not represent longitudinal evidence 20 of limitations, and (3) the opinion was not consistent with Plaintiff’s gap in mental health 21 treatment. (Id.) 22 Plaintiff does not argue that the ALJ’s first reason for rejecting Dr. Tanley’s opinion was 23 erroneous. Instead, Plaintiff challenges the ALJ’s finding that Dr. Tanley’s opinion did not 24 represent longitudinal evidence and argues that Dr. Tanley’s opinion, considered in conjunction 25 with the VA determination and Dr. Dixit’s opinion, do represent longitudinal evidence of 26 disability. The ALJ’s reasoning that Dr. Tanley’s single examination does not represent 27 longitudinal evidence of disability is valid. Plaintiff is offering an alternative interpretation of the 1 it is the ALJ's conclusion that must be upheld.” Burch, 400 F.3d at 679. The Court previously 2 addressed the ALJ’s findings concerning the gap in treatment and found that the ALJ erred. Thus, 3 although the ALJ erred in using the gap in treatment to discount Dr. Tanley’s opinion, the Court 4 finds the error harmless because the ALJ provided two other specific and legitimate reasons for 5 rejecting Dr. Tanley’s opinion. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 6 (9th Cir. 2014); Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 7 2) Dr. Aparna Dixit 8 Prior to the ALJ hearing, the ALJ ordered the consultative examination of Plaintiff with 9 Dr. Dixit because the last examination of Plaintiff was in 2012 and the ALJ “thought it would be 10 useful to have another one.” (AR 51.) Dr. Dixit’s examination found that Plaintiff’s memory was 11 in the impaired range and had “marked symptoms of anxiety and mood dysfunction and marked 12 impairments.” (AR 38–39.) Although the ALJ ordered the exam, he assigned little weight to the 13 resulting opinion because the examination occurred two years after the last date insured, the 14 limitations assessed by Dr. Dixit did not relate back to the time period before the date last insured, 15 and there was no supporting medical evidence. (Id.) 16 Plaintiff argues the ALJ should have more fully developed the record rather than discount 17 Dr. Dixit’s opinion. Plaintiff’s argument has merit, especially when, as here, the ALJ sua sponte 18 recognized the need for a new examination and ordered said examination. (AR 51.) The ALJ’s 19 rejection of Dr. Dixit’s opinion makes even less sense in light of his statement at the hearing that 20 “what I’m going to do is, I’ll keep that appointment with the [consultative] examiner. And, we’ll 21 get a report from [Dr. Dixit], that physician. And I’ll look at that in light of your testimony today 22 and the record.” (AR 61.) However, the Court does not need to address Plaintiff’s developing the 23 record argument because, as discussed below, the Court agrees that the ALJ erred in assigning 24 little weight to Dr. Dixit’s opinion. 25 It is well-settled that medical opinions “made after the period for disability are relevant to 26 assess the claimant’s disability.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Thus, 27 although Dr. Dixit’s opinion was issued two years after the date last insured, the ALJ needed to do 1 medical opinions are “inevitably rendered retrospectively” and that fact alone should not be a basis 2 for rejecting the opinion, even where the opinion is issued years after the expiration of insured 3 status. Id. at 1225–26. Therefore, the ALJ was incorrect in finding that Dr. Dixit’s opinion does 4 not relate back to the time period before date last insured. 5 The ALJ’s final reason for discounting Dr. Dixit’s opinion—lack of supporting evidence 6 prior to the date last insured—is unavailing for two reasons. First, Dr. Dixit’s opinion, in and of 7 itself, constitutes substantial evidence because it is based on Dr. Dixit’s independent examination 8 of Plaintiff. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Second, Dr. Dixit’s 9 opinion is uncontradicted by any other medical evidence; therefore, the ALJ was required to give 10 clear and convincing reasons for assigning little weight to Dr. Dixit’s opinion. Lester, 81 F.3d at 11 830–31. As explained above, the gap in mental health treatment does not constitute a clear and 12 convincing reason in the absence of a proper analysis of why Plaintiff did not pursue treatment. 13 The ALJ thus erred by not providing substantial evidence for assigning little weight to Dr. Dixit’s 14 opinion. 15 C. Plaintiff’s Residual Functional Capacity 16 Because the ALJ’s rejection of Plaintiff’s VA disability determination is not supported by 17 substantial evidence, and the ALJ failed to offer clear and convincing reasons for rejecting the 18 uncontradicted opinion of Dr. Dixit, the ALJ’s decision cannot stand. Given this, the Court need 19 not consider Plaintiff’s arguments regarding errors at Step 4 and 5 of the ALJ’s analysis. The 20 ALJ’s errors at Step 3 and the weighing of the medical evidence go to the heart of the disability 21 determination and are not harmless. See Treichler, 775 F.3d at 1099; Stout, 454 F.3d at 1056. 22 The Court cannot say that the ALJ's errors in evaluating the medical evidence and rejecting the 23 VA determination would not have altered the ALJ's RFC determination and thus the ultimate 24 disability determination. 25 26 27 1 CONCLUSION 2 For the reasons stated above, the Court GRANTS Plaintiff?s motion, DENIES Defendant’s 3 cross-motion, and REMANDS for further proceedings consistent with this Order. 4 This Order disposes of Docket Nos. 13 and 14. 5 IT IS SO ORDERED. 6 Dated: November 9, 2020 7 8 ne JAQQUELINE SCOTT CORL 9 United States Magistrate Judge 10 11 a 12 13 14 15 16 & 17 Z 18 19 20 21 22 23 24 25 26 27 28