Cook v. Commissioner of Social Security Administration

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lisa Cook, No. CV-21-01027-PHX-ESW 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 14 Defendant. 15 16 Pending before the Court is Lisa Cook’s (“Plaintiff”) appeal of the Social Security 17 Administration’s (“Social Security”) denial of her applications for supplemental security 18 income and disability insurance benefits. The Court has jurisdiction to decide Plaintiff’s 19 appeal pursuant to 42 U.S.C. §§ 405(g), 1383(c). Under 42 U.S.C. § 405(g), the Court has 20 the power to enter, based upon the pleadings and transcript of the record, a judgment 21 affirming, modifying, or reversing the decision of the Commissioner of Social Security, 22 with or without remanding the case for a rehearing. Both parties have consented to the 23 exercise of U.S. Magistrate Judge jurisdiction. (Doc. 15). 24 After reviewing the Administrative Record (“A.R.”) and the parties’ briefing (Docs. 25 24, 26, 27), the Court finds that the Administrative Law Judge’s (“ALJ”) decision contains 26 harmful legal error. For the reasons explained in herein, the decision is reversed and the 27 case is remanded to the Commissioner of Social Security for an immediate award of 28 benefits. 1 I. LEGAL STANDARDS 2 A. Disability Analysis: Five-Step Evaluation 3 The Social Security Act (the “Act”) provides for disability insurance benefits to 4 those who have contributed to the Social Security program and who suffer from a physical 5 or mental disability. 42 U.S.C. § 423(a)(1). The Act also provides for supplemental 6 security income to certain individuals who are aged 65 or older, blind, or disabled and have 7 limited income. 42 U.S.C. § 1382. To be eligible for benefits based on an alleged 8 disability, the claimant must show that he or she suffers from a medically determinable 9 physical or mental impairment that prohibits him or her from engaging in any substantial 10 gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A). The claimant 11 must also show that the impairment is expected to cause death or last for a continuous 12 period of at least 12 months. Id. 13 To decide if a claimant is entitled to Social Security disability benefits, an ALJ 14 conducts an analysis consisting of five questions, which are considered in sequential steps. 15 20 C.F.R. §§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the 16 first four steps:1 Step One: Is the claimant engaged in “substantial gainful 17 activity”? If so, the analysis ends and disability benefits are 18 denied. Otherwise, the ALJ proceeds to step two. 19 Step Two: Does the claimant have a medically severe 20 impairment or combination of impairments? A severe 21 impairment is one which significantly limits the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. 22 §§ 404.1520(c), 416.920(c). If the claimant does not have a 23 severe impairment or combination of impairments, disability 24 benefits are denied at this step. Otherwise, the ALJ proceeds to step three. 25 26 Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are 27 28 1 Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007). 1 so severe as to preclude substantial gainful activity? 20 C.F.R. 2 §§ 404.1520(d), 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively 3 presumed to be disabled. If the impairment is not one that is 4 presumed to be disabling, the ALJ proceeds to the fourth step 5 of the analysis. 6 Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? If 7 not, the claimant is “not disabled” and disability benefits are 8 denied without continuing the analysis. 20 C.F.R. §§ 9 404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the last step. 10 11 If the analysis proceeds to the final question, the burden of proof shifts to the 12 Commissioner:2 13 Step Five: Can the claimant perform other work in the national economy in light of his or her age, education, and work 14 experience? The claimant is entitled to disability benefits only 15 if he or she is unable to perform other work. 20 C.F.R. §§ 404.1520(g), 416.920(g). Social Security is responsible for 16 providing evidence that demonstrates that other work exists in 17 significant numbers in the national economy that the claimant can do, given the claimant’s residual functional capacity, age, 18 education, and work experience. Id. 19 B. Standard of Review Applicable to ALJ’s Determination 20 The Court must affirm an ALJ’s decision if it is supported by substantial evidence 21 and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 22 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial 23 evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. 24 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 25 229 (1938)). It means such relevant evidence as a reasonable mind might accept as 26 adequate to support a conclusion. Id. 27 In determining whether substantial evidence supports the ALJ’s decision, the Court 28 2 Parra, 481 F.3d at 746. 1 considers the record as a whole, weighing both the evidence that supports and detracts from 2 the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. 3 Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the 4 ALJ’s determination, the Court cannot substitute its own determination. See Morgan v. 5 Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence 6 is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must 7 be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the 8 ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence 9 and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 10 F.3d 1035, 1039 (9th Cir. 1995). 11 The Court also considers the harmless error doctrine when reviewing an ALJ’s 12 decision. This doctrine provides that an ALJ’s decision need not be remanded or reversed 13 if it is clear from the record that the error is “inconsequential to the ultimate nondisability 14 determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations 15 omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains 16 substantial evidence supporting the ALJ’s decision and the error “does not negate the 17 validity of the ALJ’s ultimate conclusion”) (citations omitted). 18 II. DISCUSSION 19 A. Procedural History 20 Plaintiff filed concurrent applications for benefits in June 2014 alleging disability 21 beginning July 15, 2012. (A.R. at 436-52). Plaintiff alleged disability resulting from 22 bipolar disorder, posttraumatic stress disorder, major depressive disorder, attention deficit 23 disorder, and anxiety disorder. (A.R. at 505, 516). The Commissioner denied Plaintiff’s 24 claims at the initial and reconsideration phases of administrative review (A.R. at 189-196, 25 201-206), and Plaintiff timely requested a hearing before an ALJ. (A.R. at 207-209). ALJ 26 Earl C. Cates, Jr. presided over a hearing on Plaintiff’s claims in October 2016. (A.R. at 27 77-101). ALJ Cates ordered Plaintiff to undergo additional independent examinations and 28 return for a supplemental hearing. (A.R. at 98-99, 266-70). ALJ Cates held a supplemental 1 hearing on July 27, 2017. (A.R. at 51-74). In April 2018, he issued an unfavorable decision 2 (A.R. at 165-77), and Plaintiff timely appealed. (A.R. at 327-31). 3 In December 2018, the Appeals Council remanded the claims back to an ALJ for 4 further evaluation of Plaintiff’s symptoms, her maximum residual functional capacity, the 5 opinion evidence, and her past relevant work, as well as to obtain additional testimony from 6 a vocational expert (“VE”) as to whether Plaintiff acquired skills transferable to other 7 occupations. (A.R. at 186-87). 8 Upon remand, Plaintiff was instructed to undergo additional consultative 9 examinations with psychologist Stephen C. Gill, Ph.D. (A.R. at 4247-56) and family 10 physician Richard M. Palmer, M.D. (A.R. at 4258-71). A hearing on remand before ALJ 11 Cates was held on December 17, 2019. (A.R. at 4660-97). In September 2020, a 12 supplemental hearing on remand was held before ALJ Kelly Walls. (A.R. at 4616-59). At 13 that hearing, the Plaintiff and a VE testified. (A.R. at 4630-58). On November 27, 2020, 14 ALJ Walls found that Plaintiff was not disabled through June 30, 2015 (the date last 15 insured). (A.R. at 38). ALJ Walls, however, found that Plaintiff was disabled beginning 16 on July 8, 2019, which was the date Plaintiff’s age category changed. (A.R. 37). 17 B. The ALJ’s Application of the Five-Step Disability Analysis 18 1. Step One: Engagement in “Substantial Gainful Activity” 19 The ALJ determined that Plaintiff has not engaged in substantial gainful activity 20 since July 15, 2012 (the alleged disability onset date). (A.R. 20). Neither party disputes 21 this determination. 22 2. Step Two: Presence of Medically Severe Impairment/Combination of Impairments 23 24 The ALJ found that Plaintiff has the following severe impairments: alcohol 25 dependence, opioid dependence, “personality disorder not otherwise specified with 26 avoidant, dependent, and passive-aggressive features,” dysthymia, bipolar disorder, 27 attention deficit hyperactivity disorder, major depressive disorder, post-traumatic stress 28 disorder, generalized anxiety disorder; panic disorder without agoraphobia; lumbar and 1 cervical degenerative disc disease, left carpal tunnel syndrome, and osteoarthritis of the 2 right thumb. (A.R. 20). The ALJ’s step two determination is undisputed. 3 3. Step Three: Presence of Listed Impairment(s) 4 The ALJ determined that Plaintiff does not have an impairment or combination of 5 impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, 6 Subpart P, Appendix 1 of the Social Security regulations. (A.R. 21). Neither party disputes 7 the ALJ’s determination at this step. 8 4. Steps Four and Five: Capacity to Perform Past Relevant Work and Other Work 9 The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”) 10 to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), except that 11 Plaintiff 12 can occasionally reach overhead bilaterally and frequently 13 handle and finger bilaterally. In addition, she is able to perform simple, routine tasks, and make simple, work-related decisions 14 in an environment with few changes and free from fast-paced 15 production requirements like those found in assembly line work. Finally, the claimant can have occasional interaction 16 with the public. 17 (A.R. 23). 18 After considering Plaintiff’s RFC, the ALJ determined that Plaintiff is unable to 19 perform her past relevant work as an animal caretaker and nurse assistant. (A.R. 34). 20 Although Plaintiff does not challenge the ALJ’s determination that Plaintiff is unable 21 perform her past work, Plaintiff asserts that the ALJ’s decision does not adequately 22 consider all work-related limitations. Plaintiff asserts that the ALJ improperly rejected the 23 opinions of examining psychologist Colin Joseph, PhD and Plaintiff’s treating physician, 24 Roger Nutt, MD. (Doc. 24 at 10-15). 25 Considering the limitations from Plaintiff’s RFC and the VE’s testimony, the ALJ 26 concluded that prior to July 8, 2019, Plaintiff could perform the requirements of 27 representative occupations such as Routing Clerk, Office Helper, and Housekeeper 28 Cleaner. (A.R. at 36-37). However, the ALJ found that effective July 8, 2019, under 1 Medical-Vocational Rule 202.06,3 Plaintiff was disabled as Plaintiff’s age category 2 changed to an individual of advanced age. (A.R. at 37). Plaintiff challenges the ALJ’s 3 determination that other work existed in significant numbers that Plaintiff could perform 4 prior to July 8, 2019. (Doc. 24 at 16-22). 5 C. The ALJ Failed to Give Specific and Legitimate Reasons Supported by Substantial Evidence for Discounting the Opinions of Colin Joseph, PhD 6 and Roger Nutt, MD 7 For disability claims filed before March 27, 2017, the Ninth Circuit recognizes three 8 categories of physicians in a Social Security disability claim: treating physicians, 9 examining physicians, and non-examining physicians.4 Lester v. Chater, 81 F.3d 821, 830 10 (9th Cir. 1995). Generally, the opinion of a treating physician is afforded the most weight. 11 Id. (citations omitted). An ALJ must provide clear and convincing reasons supported by 12 substantial evidence for rejecting the uncontradicted opinion of a treating or examining 13 doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a 14 treating or examining physician’s opinion is contradicted by other evidence, however, the 15 ALJ must provide only specific and legitimate reasons supported by substantial evidence. 16 Lester, 81 F.3d at 830; Bayliss, 427 F.3d at 1216. 17 1. Consultative Examiner Colin Joseph, PhD 18 In October 2014, licensed psychologist Colin Joseph, PhD interviewed and 19 examined Plaintiff on referral from the Arizona Department of Economic Security and 20 Social Security Disability Determination Office. (A.R. at 3529-33). Dr. Joseph 21 documented Plaintiff’s history of mental health treatment and her reported symptoms, such 22 as anxiety, panic, and depression. (A.R. at 3529-31). Dr. Joseph observed that Plaintiff 23 24 3 Medical-Vocational Rule 202.06 states that an individual limited to light work is disabled where he is of advanced age (55 or older), has a high school or greater education 25 that does not provide for direct entry into skilled work, and has skilled or semi-skilled past relevant work from which no skills are transferrable to other jobs the individual can 26 perform. Appendix 2 to Subpart P of 404. 27 4 Regulations applicable to disability claims filed on or after March 27, 2017 effectively eliminate this hierarchy of medical opinions. Woods v. Kijakazi, 32 F.4th 785, 28 791-92 (9th Cir. 2022). Because Plaintiff filed her claims before that date, the prior regulations codifying the hierarchy of medical opinions apply here. 20 C.F.R. § 404.1527. 1 avoided eye contact and presented with “a depressed mood and completely flattened 2 affect,” a “tired, somnolent” appearance, and “prominent psychomotor retardation.” (A.R. 3 at 3532). Regarding her substance abuse history, Plaintiff reported that she became 4 dependent on pain medications following a motor vehicle accident in 2002 but has been 5 sober from pain medications for two-and-a-half years prior to the exam. (A.R. at 3531). 6 Plaintiff “denied any issues with alcohol or other drugs.” (Id.). 7 Regarding Plaintiff’s functional limitations, Dr. Joseph concluded that Plaintiff 8 “might have some difficulty understanding and remembering complex instruction” and 9 “might require occasional repetition of instruction, to learn new detailed tasks.” (A.R. at 10 3533). Dr. Joseph further noted that Plaintiff’s “cognitive processing appears slowed and 11 labored” and concluded that Plaintiff’s ability to maintain attention and concentration was 12 “likely to require sustained effort.” (Id.). As to Plaintiff’s capabilities regarding social 13 interaction, Dr. Joseph stated that Plaintiff can be expected to be anxious, vigilant and preoccupied with 14 safety issues. She is likely to be sensitive to perceived 15 negativity, criticism judgment [sic]; and respond with exaggerated anxiety; reaching panic level at times. It is 16 unlikely [Plaintiff] would be capable of maintaining emotional 17 stability and appropriate social behavior in a typical work environment. 18 (Id.). Regarding Plaintiff’s ability to adapt to changes in the work setting, Dr. Joseph 19 opined that while Plaintiff “appears adequately aware of her environment and should be 20 able to recognize normative workplace hazards[,]” Plaintiff “might respond to such 21 situations with increased anxiety and have difficulty making quick decisions exercising 22 good judgment.” (Id.). 23 In ALJ Walls’ November 2020 decision, she assigned Dr. Joseph’s opinions “little 24 weight.” (A.R. at 31). The ALJ found that Dr. Joseph’s report “seems to be supported 25 primarily by the claimant’s subjective complaints, as no records were reviewed. (A.R. at 26 32). The ALJ further stated that Plaintiff “was not forthright” with Dr. Joseph regarding 27 “her history, such as the frequency and recency of her substance abuse and alcohol abuse, 28 which indicates that the information on which this opinion is based is inaccurate.” (Id.). 1 The ALJ concluded that Dr. Joseph’s “opinion is not consistent with the greater record, 2 which shows that at the time this opinion was given, [Plaintiff] was enrolled in and doing 3 well in college, nor is it consistent with the intervening records, which demonstrate 4 [Plaintiff’s] condition improved to the point of requiring much less mental health 5 treatment.” (Id.). 6 Plaintiff alleges that the ALJ provided legally insufficient reasons for rejecting Dr. 7 Joseph’s opinion. (Doc. 24 at 10-13). Plaintiff first argues that it is error for the ALJ to 8 reject a psychologist’s opinion for the reason it is based on a claimant’s subjective 9 complaints. (Id. at 10). Citing Ninth Circuit precedent, Plaintiff argues that a “psychiatric 10 examination being based on a claimant’s statements is the very nature of psychiatric 11 examination and an ALJ cannot rely on this fact to support the rejection of medical opinion 12 evidence.” (Id.) (citing Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017)). Plaintiff 13 also notes that Dr. Joseph’s report discusses observed abnormalities such as Plaintiff’s 14 “prominent psychomotor retardation,” “slow and monotone speech,” apparent slowed and 15 labored cognitive processing upon examination, depressed mood, anxious affect, and 16 avoidant eye contact. (Id.). 17 Next, Plaintiff argues that the ALJ erred by discounting Dr. Joseph’s opinions based 18 on discrepancies in Plaintiff’s reported substance abuse history because Plaintiff’s prior 19 substance use is immaterial to the question of disability. (Id. at 11). Plaintiff notes that the 20 ALJ’s decision concludes that Plaintiff’s psychological symptoms have “not significantly 21 changed since she became sober.” (Id.) (citing A.R. at 37). 22 Finally, Plaintiff argues that the ALJ erred by discounting Dr. Joseph’s opinions 23 based on Plaintiff’s attendance in college. Plaintiff recounts that Dr. Joseph examined her 24 in October 2014 and Plaintiff’s educational records show that she failed all classes Plaintiff 25 attempted to take in Spring of 2014. (Id.). Plaintiff argues that “[t]he fact that Plaintiff 26 could successfully complete a few introductory courses over the course of three semesters 27 is not evidence of functionality beyond the limitations found by Dr. Joseph, and to the 28 extent Plaintiff’s ability to even complete classwork is evidence of functionality, Plaintiff 1 failed or withdrew from all classes in Fall of 2016 (Tr. 619).” (Id. at 12). 2 Defendant counters it was appropriate for the ALJ to reject Dr. Joseph’s opinion on 3 the basis of Plaintiff’s inaccurate reporting, noting that while a psychologist may rely upon 4 a claimant’s reported symptoms, the ALJ may assign less weight to that doctor’s opinion 5 if the claimant’s self-report is inaccurate. (Doc. 26 at 8-9). Further, Defendant contends 6 that while the ALJ noted no significant change in Plaintiff’s psychological symptoms after 7 her sobriety, the ALJ’s analysis of the materiality of Plaintiff’s substance abuse applies 8 only to the period she is found disabled, and thus, that it holds no bearing on the period of 9 non-disability from July 15, 2012 to July 7, 2019. (Id. at 10). Defendant asserts that the 10 ALJ reasonably relied upon Plaintiff’s school activities, as Plaintiff was enrolled for 11 considerable periods of time during the relevant period and at times earned grade-point 12 averages of 3.00 or above. (Id. at 11). Defendant also contends that the ALJ was correct 13 to note the declining frequency of Plaintiff’s mental health treatment visits, Plaintiff’s 14 success in controlling her symptoms, and Plaintiff’s benign mental status findings. (Id. at 15 12-13). 16 The Court finds that Dr. Joseph’s report is contravened in the record,5 and thus, that 17 the ALJ was required to provide only specific and legitimate reasons for rejecting his 18 opinion. Bayliss, 427 F.3d at 1216. The Court concludes that the ALJ failed to cite the 19 requisite specific, legitimate reasons supported by substantial evidence for rejecting Dr. 20 Joseph’s report. 21 The ALJ’s decision correctly states that Plaintiff’s report of prescription drug and 22 alcohol abuse to Dr. Joseph is not consistent with the record. Plaintiff reported to Dr. 23 Joseph that she had been sober from prescription pain medications for two-and-a-half 24 years, and that she had never had any problems with alcohol. (A.R. at 3531). Yet the 25 record shows that this statement was inaccurate. Only a few months prior to Dr. Joseph’s 26 examination Plaintiff indicated “periodically binge drinking” (A.R. at 2359) and other 27 28 5 Non-examining physicians at initial and reconsideration opined Plaintiff was not as restricted. (A.R. at 112-13, 143-44.) 1 treatment records reflect a history of alcohol abuse. (A.R. at 1089, 1516, 1542, 1599, 2 2159). Plaintiff was discharged from a Veterans Affairs facility in June 2013 with a 3 primary diagnosis of opioid dependence. (A.R. at 1399). The ALJ and Plaintiff’s counsel 4 discussed these discrepancies at Plaintiff’s September 2020 hearing. (A.R. at 4625-29). 5 Plaintiff persuasively argues, however, that this inconsistency is irrelevant because 6 the ALJ concluded Plaintiff’s “symptoms have not significantly changed since she became 7 sober.” (A.R. at 37). Indeed, the ALJ concluded that “[t]he same mental limitations would 8 remain in the absence of alcohol and drug abuse, as evidenced by comparing the medical 9 records prior to the [Plaintiff’s] sobriety with those after the [Plaintiff’s] sobriety, 10 beginning in approximately November 2014.” (A.R. at 37). By the ALJ’s own rationale, 11 Plaintiff’s substance abuse had no material impact on Plaintiff’s symptoms and limitations. 12 Defendant argues that the materiality of substance abuse is evaluated only during 13 periods of disability and, consequently, that the ALJ’s conclusions regarding the 14 materiality of Plaintiff’s substance abuse applied only to the period beginning July 8, 15 2019—her established disability onset date. (Id. at 10). Defendant is correct that the 16 Commissioner must evaluate the materiality of a claimant’s substance abuse only during 17 periods that individual is found to be disabled. See e.g., 20 C.F.R. § 416.935(a); 18 Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (“If, and only if, the ALJ 19 found that Bustamante was disabled under the five-step inquiry, should the ALJ have 20 evaluated whether Bustamante would still be disabled if he stopped using alcohol.”). 21 Importantly, however, the ALJ’s conclusions with respect to the impact of substance abuse 22 on Plaintiff’s mental health symptoms and limitations are still relevant to her evaluation of 23 Dr. Joseph’s opinion. The Court will not ignore the ALJ’s statement that substance abuse 24 had no material impact on Plaintiff’s functioning simply because it was made in a different 25 context. An ALJ’s analysis in one section of the decision can inform the ALJ’s conclusions 26 in another. See Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (affirming an ALJ’s 27 analysis regarding listed impairments, despite the ALJ’s omission of necessary findings in 28 that section of the decision, because the ALJ provided sufficient reasoning elsewhere in 1 the opinion for his conclusion). 2 Plaintiff is also correct that “the rule allowing an ALJ to reject opinions based on 3 self-reports does not apply in the same manner to opinions regarding mental illness.” Buck 4 v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Mental health clinicians “will always 5 depend in part on the patient’s self report, as well as the clinician’s observations . . . [b]ut 6 such is the nature of psychiatry.” Id. (citations omitted). Still, an ALJ may reject opinion 7 evidence premised on a Plaintiff’s subjective complaints which have also been properly 8 discounted. E.g., Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) 9 (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). A psychological practitioner’s 10 reliance on a claimant’s erroneous or inconsistent reports still constitutes a legally 11 sufficient reason to reject that opinion. See Andrews, 53 F.3d at 1043 (an ALJ may reject 12 an examining psychologist’s opinion based on unreliable self-report); McCloud v. Saul, 13 818 F. App’x 730, 734 (9th Cir. 2020) (unpublished). Importantly, “[i]f a treating 14 provider’s opinions are based ‘to a large extent’ on an applicant’s self-reports and not on 15 clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the 16 treating provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) 17 (citations omitted). “However, when an opinion is not more heavily based on a patient’s 18 self-reports than on clinical observations, there is no evidentiary basis for rejecting the 19 opinion.” Id. 20 Here, in addition to relying upon Plaintiff’s self-report, Dr. Joseph also documented 21 positive mental status findings which informed his opinion. When explaining his 22 conclusions, Dr. Joseph cited Plaintiff’s reported history and endorsement of symptoms, 23 along with her clinical presentation. (A.R. at 3532). Dr. Joseph concluded, “[Plaintiff’s] 24 reported history and current presentation suggest she has managed with mood instability 25 beginning in her childhood years and continuing into her adult years.” (A.R. at 3532) 26 (emphasis added). Dr. Joseph documented Plaintiff’s “very depressed” and fatigued 27 presentation and exhibition of “prominent psychomotor retardation.” (A.R. at 3532). In 28 his mental status examination, Dr. Joseph observed Plaintiff’s “completely flattened 1 affect,” that “[s]he remained expressionless throughout the evaluation[,]” and that “[s]he 2 appeared tired, somnolent and as if on the edge of tears.” (A.R. at 3532). The ALJ did not 3 provide a basis for the conclusion that Dr. Joseph’s opinion was based more heavily on 4 Plaintiff’s self-reports, and substantial evidence does not support such a conclusion. 5 Ghanim, 763 F.3d at 1162 (“The ALJ offered no basis for his conclusion that these opinions 6 were based more heavily on Ghanim’s self-reports, and substantial evidence does not 7 support such a conclusion”). Consequently, this reason is also insufficient. 8 The ALJ also concluded that Dr. Joseph’s opinion was “not consistent with the 9 greater record, which shows that at the time this opinion was given, the claimant was 10 enrolled in and doing well in college . . . .” (A.R. at 32). As Plaintiff argued, this is 11 incorrect. (Doc. 24 at 11). Plaintiff’s school transcripts indicate she did not pass any 12 classes in the semester preceding her evaluation with Dr. Joseph. (A.R. at 618-19). The 13 Commissioner argues that this basis for rejecting Dr. Joseph’s report was reasonable 14 because the Plaintiff performed well in school during other time periods. (Doc. 26 at 11). 15 This was not the ALJ’s rationale. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 16 1225-26 (9th Cir. 2009) (“Long-standing principles of administrative law require us to 17 review the ALJ’s decision based on the reasoning and factual findings offered by the 18 ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have 19 been thinking.”) (citations omitted). The ALJ specifically noted “at the time this opinion 20 was given, [Plaintiff] was enrolled in and doing well in college[.]” (A.R. at 32, emphasis 21 added). Assuming arguendo that the ALJ intended to cite Plaintiff’s enrollment and 22 performance in school generally during the relevant period,6 Plaintiff testified she quit 23 school in 2016 due to increased panic attacks and that class activities would often induce 24 symptoms of anxiety or panic. (A.R. at 4633, 4644). Plaintiff’s treatment records support 25 that she experienced difficulties in school related to anxiety and focus and concentration 26 deficits. (A.R. at 2159, 3797). 27 28 6 At Plaintiff’s September 2020 hearing, ALJ Walls and Plaintiff’s counsel discussed her enrollment and performance in school generally. (A.R. at 4629-30.) 1 Lastly, the ALJ cited to the “intervening records, which demonstrate [Plaintiff’s] 2 condition improved to the point of requiring much less mental health treatment.” (A.R. at 3 32). But the ALJ provided no specific evidentiary citation to support this assertion, and 4 the decrease in Plaintiff’s mental health treatment visits, standing alone, is insufficient here. 5 As the Ninth Circuit has stated, “it is a questionable practice to chastise one with a mental 6 impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 7 100 F.3d 1462, 1465 (9th Cir. 1996). Further, the available medical records, including 8 those summarized by the ALJ in her decision, do not clearly support medical improvement. 9 (A.R. at 28-29). Records from the two years prior to Plaintiff’s September 2020 hearing 10 reflect she presented as tired and “severely depressed” with a “flat affect” (A.R. at 4250- 11 51), with a depressed mood and poor insight and judgment (A.R. at 4459), and with an 12 anxious and depressed mood. (A.R. at 4376). 13 For the foregoing reasons, the ALJ failed to provide the requisite specific, legitimate 14 reasons supported by substantial evidence in the record to reject Dr. Joseph’s opinions. 15 2. Roger Nutt, MD 16 As the ALJ’s decision recounts, Dr. Roger Nutt completed eight disability forms 17 during the relevant period on Plaintiff’s behalf, each supporting Plaintiff’s disability. (A.R. 18 at 33, 4034-40, 4180-86, 4225-31, 4243-46, 4349-52, 4353-59, 4605-08, 4609-15). In 19 assigning Dr. Nutt’s opinions “limited weight,” the ALJ stated that Dr. Nutt is Plaintiff’s 20 “primary care physician, not her mental health provider.” (A.R. at 33). The ALJ also 21 found that the “extreme limitations” opined by Dr. Nutt are not supported by Dr. Nutt’s 22 treatment notes or other records. (Id.). The ALJ stated that Plaintiff’s more severe limitations clearly occurred prior to 2016, as she 23 had four separate inpatient admissions for mental health 24 treatment at the Domiciliary prior to 2015, but she has had no inpatient mental health care since then. Indeed, [Plaintiff] 25 received less mental health treatment and by 2019 did not 26 receive anything resembling the level of care she previously had. The limitations opined by Dr. Nutt are inversely 27 proportional to the mental health care received by [Plaintiff] 28 reflected in the records. 1 (A.R. 33-34). 2 The Court finds that the ALJ did not provide specific, legitimate reasons for 3 rejecting Dr. Nutt’s several opinions.7 First, the physician’s area of expertise is only one 4 of several factors an ALJ must evaluate under the applicable regulations. See e.g., 20 5 C.F.R. § 404.1527(c)(1)-(6). The other factors include the length of the treatment 6 relationship, the frequency of examinations, and the consistency and supportability of the 7 physician’s conclusions. Id. The Ninth Circuit has held that the Commissioner may not 8 reject the opinion of a treating physician merely because he is not a mental health specialist. 9 Lester, 81 F.3d 821, 833 (9th Cir. 1995), as amended (Apr. 9, 1996) (citing Sprague v. 10 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). 11 An ALJ may reject a disabling opinion that is belied by a claimant’s course of 12 treatment. Yet, to reiterate, “it is a questionable practice to chastise one with a mental 13 impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen, 100 F.3d 14 at 1465; see also Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 15 (9th Cir. 1999). Here, while the ALJ observed that Dr. Nutt’s conclusions became 16 increasingly extreme with no commensurate increase in Plaintiff’s symptoms or treatment 17 visits8 (A.R. at 33-34), the Court is persuaded by Plaintiff’s argument that any claim of 18 medical improvement is “irrelevant to the legitimacy of Dr. Nutt’s medical statement that 19 Plaintiff is functionally limited, to a disabling degree, from July 2012 through October 7, 20 2016 . . . .” (Doc. 24 at 14). 21 The ALJ’s reasoning for rejecting Dr. Nutt’s opinions are based on a perceived 22 inconsistency between the severity of Plaintiff’s limitations as assessed by Dr. Nutt and the 23 frequency and intensity of Plaintiff’s treatment in later years. However, this rationale does 24 not address the legitimacy of Dr. Nutt’s conclusions that Plaintiff was disabled as early as 25 7 As with Dr. Joseph, the Court finds Dr. Nutt’s opinions are contravened in the record. 26 8 In June 2017, for example, Dr. Nutt assigned to Plaintiff three moderate 27 limitations, five marked limitations, and two extreme limitations. (AR. at 4182-84.) In January 2019, Dr. Nutt assigned 12 extreme limitations (AR. at 4227-29); in October 2019 28 he assigned 12 extreme limitations (AR. at 4356-57); and in August 2020 he assigned 12 extreme limitations (AR. at 4612-13). 1 2015. The ALJ’s decision states that “[Plaintiff’s] more severe limitations clearly occurred 2 prior to 2016.” (A.R. at 33). Dr. Nutt completed assessments dated as early as January 3 2015 wherein he concluded Plaintiff suffered varying degrees of “occupational and social 4 impairment” (A.R. at 3536, 3541) and that she suffered from symptoms of depressed mood, 5 anxiety, panic attacks, difficulty establishing effective work and social relationships, and 6 difficulty adapting to stressful circumstances. (A.R. at 3538, 3544). These limitations are 7 applicable to a period of time when Plaintiff was experiencing a higher level of symptoms. 8 Consequently, the ALJ’s rationale is insufficient. 9 The ALJ also concluded that Dr. Nutt’s treatment notes belie the “extreme 10 limitations” he assigned, but the ALJ cites no specific records undermining Dr. Nutt’s 11 conclusions. (A.R. at 33). Although Defendant asserts that Plaintiff’s treatment visits with 12 Dr. Nutt largely pertained to “routine follow-up[s]” to monitor Plaintiff’s physical 13 condition “and therefore did not have much direct knowledge of her mental impairments.” 14 (Doc. 26 at 16). However, this rationale is absent from the ALJ decision. A reviewing 15 court may draw specific and legitimate inferences from an ALJ’s decision, but a court 16 cannot speculate on the ALJ’s reasoning or make “post hoc rationalizations that attempt to 17 intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec., 554 18 F.3d 1219, 1225 (9th Cir. 2009); Magallanes, 881 F.2d at 755. 19 Similarly, while the ALJ alluded to inconsistencies between Dr. Nutt’s opinions and 20 “the greater record, including other records from the VA,” the ALJ omitted any specific 21 citation to that evidence. (A.R. at 33). An ALJ must draw a nexus between her conclusions 22 and her factual findings. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“The 23 ALJ must do more than state conclusions. He must set forth his own interpretations and 24 explain why they, rather than the doctors’, are correct.”) (citations omitted); Alter v. 25 Comm'r of Soc. Sec. Admin., No. CV-19-04387-PHX-DMF, 2020 WL 3064463, at *13 (D. 26 Ariz. June 9, 2020) (“The ALJ failed to provide the nexus between the evidence she cited 27 and the conclusions she drew from that evidence or to explain why her interpretations 28 rather than those of Dr. Grove were correct.”). Consequently, this Court finds that the ALJ 1 cited insufficient reasons for rejecting Dr. Nutt’s opinions. 2 The ALJ’s failure to provide legally sufficient reasons for discounting Drs. Joseph 3 and Nutt’s opinions is harmful error and alone requires remand. The Court therefore does 4 not address Plaintiff's arguments regarding the other alleged errors in the ALJ's decision. 5 D. Remand for Additional Proceedings is Appropriate 6 Ninth Circuit jurisprudence “requires remand for further proceedings in all but the 7 rarest cases.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 8 2014). The Ninth Circuit, however, has adopted a test to determine when a case should be 9 remanded for payment of benefits in cases where an ALJ has improperly rejected claimant 10 testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at 1020. This 11 test is commonly referred to as the “credit-as-true” rule, which consists of the following 12 three factors: 1. Has the ALJ failed to provide legally sufficient reasons for 13 rejecting evidence, whether claimant testimony or medical 14 opinion? Treichler, 775 F.3d at 1100-01. 15 2. Has the record been fully developed, are there outstanding 16 issues that must be resolved before a disability determination can be made, or would further administrative proceedings be 17 useful? Id. at 1101. To clarify this factor, the Ninth Circuit 18 has stated that “[w]here there is conflicting evidence, and not all essential factual issues have been resolved, a remand for 19 an award of benefits is inappropriate.” Id. 20 3. If the improperly discredited evidence were credited as true, 21 would the ALJ be required to find the claimant disabled on 22 remand? Id.; Garrison, 759 F.3d at 1020. Where a court has found that a claimant has failed to satisfy one of the factors of the 23 credit-as-true rule, the court does not need to address the remaining factors. Treichler, 775 24 F.3d at 1107 (declining to address final step of the rule after determining that the claimant 25 has failed to satisfy the second step). Moreover, even if all three factors are met, a court 26 retains the discretion to remand a case for additional evidence or to award benefits. Id. at 27 1101-02. A court may remand for further proceedings “when the record as a whole creates 28 1 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 2 Social Security Act.” Garrison, 759 F.3d at 1021. In Treichler, the Ninth Circuit noted 3 that “[w]here an ALJ makes a legal error, but the record is uncertain and ambiguous, the 4 proper approach is to remand the case to the agency.” 775 F.3d at 1105. 5 The Court finds that the record is fully developed and that there are no outstanding 6 issues of fact to be resolved through further proceedings. At the administrative hearing, 7 the VE testified that there is no work in the national economy for an individual who “would 8 require occasional repetition of instructions to learn new, detailed tasks,: “would not be 9 able to maintain attention or concentration for a two-hour period,” “would not be able to 10 work in coordination with or proximity to others without being unduly distracted,” “would 11 not be able to respond appropriately to changes in a routine work setting, and “would be 12 unable to sustain ordinary routine work without special supervision.” (A.R. at 4655-56). 13 The Court finds that if Drs. Joseph and Nutt’s opinions were credited-as-true, the ALJ 14 would be required to find that Plaintiff is disabled prior to July 8, 2019.9 15 The Court does not find any material evidence in the record that creates serious 16 doubt that Plaintiff was in fact disabled beginning on July 15, 2012. Based on the record, 17 the Court finds it inappropriate to remand the case for further proceedings. See Benecke v. 18 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the 19 9 42 U.S.C. § 413(d)(2)(C) provides that a claimant cannot receive disability benefits 20 if drug or alcohol abuse is “a contributing factor material to the Commissioner’s determination that the individual is disabled.” Here, the ALJ concluded that the “same 21 mental limitations would remain in the absence of alcohol and drug abuse, as evidenced by comparing the medical records prior to [Plaintiff’s] sobriety with those after [Plaintiff’s] 22 sobriety, beginning in approximately November 2014.” (A.R. at 37). 23 The ALJ further noted that Social Security Ruling 13-2p requires that when it is not possible to separate the mental restrictions of drug addiction and alcoholism from the 24 restrictions of other mental impairments, a finding of ‘not material’ is appropriate.” (Id.). The ALJ found that Plaintiff’s “substance abuse disorders cannot be found to be a 25 contributing factor material to the determination of disability because it is not possible to separate the mental restrictions of drug addiction and alcoholism from the restrictions of 26 [Plaintiff’s] other mental impairments. Accordingly, [Plaintiff] would still be disabled in the absence of the substance use disorders.” (A.R. at 37-38). The Court agrees with 27 Plaintiff’s Reply (Doc. 27 at 4) that the ALJ’s materiality analysis as to Plaintiff’s substance use pertains to the timeframe prior to July 8, 2019. Therefore, further 28 administrative proceedings are unnecessary with respect to a substance use materiality analysis. 1 || issue again would create an unfair ‘heads we win; tails, let's play again’ system of disability 2|| benefits adjudication.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The 3 || Commissioner, having lost this appeal, should not have another opportunity to show that Moisa is not credible any more than Moisa, had he lost, should have an opportunity for 5 || remand and further proceedings to establish his credibility.”) (citation omitted); Henderson 6|| v. Berryhill, 691 F. App’x 384, 386 (9th Cir. 2017) (“Given this fully developed record, 7\|| the admission of more evidence would not be ‘enlightening,’ Treichler, 775 F.3d at 1101, 8 || and ‘remand for the purpose of allowing the ALJ to have a mulligan [does not qualify] as 9|| aremand for a ‘useful purpose,’ Garrison, 759 F.3d at 1021.”). The Court will remand the case for an immediate award of benefits effective July 15, 2012 (the disability onset date). 11 Ill. CONCLUSION 12 Based on the foregoing, 13 IT IS ORDERED reversing the portion of the decision of the Commissioner of Social Security finding that Plaintiff was not disabled prior to July 8, 2019 and remanding 15 | this case to the Commissioner for an immediate award of benefits effective July 15, 2012. 16 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || accordingly. 18 Dated this 28th day of November, 2022. . Cay) doh 20 Honorable Eileen S. Willett 1 United States Magistrate Judge 22 23 24 25 26 27 28 -19-