Antillon v. Commissioner of Social Security

• Court: District Court, N.D. California
• Decided: July 18, 2024
• Docket: 3:23-cv-05223
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SIMONE A., Case No. 3:23-cv-05223-JSC

8 Plaintiff, ORDER REVERSING AND 9 v. REMANDING FOR FURTHER PROCEEDINGS 10 KILOLO KIJAKAZI, Commissioner of Social Security, Re: Dkt. Nos. 11, 13 11 Defendant.

13 Plaintiff seeks social security benefits for the mental impairments of bipolar disorder, 14 anxiety disorder/obsessive compulsive disorder, and autism spectrum disorder. (Administrative 15 Record (“AR”) 17.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review 16 of the final decision by the Commissioner of Social Security denying her benefits claim. After 17 careful consideration of the parties’ briefing, the Court concludes oral argument is unnecessary, 18 see N.D. Cal. Civ. L.R. 7-1(b), REVERSES the ALJ’s decision and REMANDS for further 19 proceedings. The ALJ’s rejection of the medical evidence was not supported by substantial 20 evidence and his rejection of Plaintiff’s subjective symptom testimony was not supported by clear 21 and convincing reasons. 22 BACKGROUND 23 A. Procedural History 24 Pursuant to the Social Security Act, on September 2, 2020, Plaintiff filed a Title XVI 25 application for supplemental security disability benefits alleging a disability onset date of 26 February 1, 2020. (AR 61, 227.) Plaintiff’s application was denied initially and upon 27 reconsideration. (AR 76, 95.) Plaintiff submitted a timely request for a hearing before an 1 Administrative Law Judge (ALJ). (AR 119.) A telephonic hearing was held on September 7, 2022 2 where Plaintiff, who was represented by counsel, and a vocational expert testified. (AR 31-59.) On 3 September 28, 2022, the ALJ issued an unfavorable decision finding Plaintiff was not disabled 4 within the meaning of the Social Security Act. (AR 15-25.) 5 Plaintiff filed a timely request for review with the Appeals Council, which the Appeals 6 Council denied. (AR 1-3.) Plaintiff thereafter filed the underlying action. In accordance with Civil 7 Local Rule 16-5, the parties filed cross briefs on appeal. (Dkt. Nos. 11, 13.1) 8 B. Issues for Review 9 1. Did the ALJ err in evaluating the medical evidence? 10 2. Did the ALJ err in evaluating Plaintiff’s subjective symptom testimony? 11 3. Did the ALJ err in disregarding the lay witness evidence? 12 4. Did the ALJ err at Step Five? 13 5. Should the Court remand for payment of benefits or further proceedings? 14 LEGAL STANDARD 15 A claimant is considered “disabled” under the Act if he meets two requirements. See 42 16 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 17 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically 18 determinable physical or mental impairment which can be expected to result in death or which has 19 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 20 423(d)(1)(A). Second, the impairment or impairments must be severe enough she is unable to do 21 her previous work and cannot, based on her age, education, and work experience, “engage in any 22 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 23 To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential 24 analysis, examining: (1) whether the claimant is engaging in “substantial gainful activity”; (2) 25 whether the claimant has a “severe medically determinable physical or mental impairment” or 26 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 27 1 “meets or equals” one of the listings in the regulations; (4) whether, given the claimant’s RFC, she 2 can still do her “past relevant work”; and (5) whether the claimant “can make an adjustment to 3 other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on 4 other grounds; see 20 C.F.R. § 404.1520(a). 5 DISCUSSION 6 I. MEDICAL OPINION EVIDENCE 7 Under the regulations that apply to Plaintiff’s application, the Commissioner no longer 8 gives specific evidentiary weight to medical opinions, including the deference formerly given to 9 the opinions of treating physicians. Instead, the Commissioner evaluates the “persuasiveness” of 10 all medical opinions in the record based on: (1) supportability; (2) consistency; (3) relationship 11 with the claimant; (4) specialization; and (5) other factors, such as “evidence showing a medical 12 source has familiarity with the other evidence in the claim or an understanding of our disability 13 program’s policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c; see also Woods v. 14 Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022) (“For claims subject to the new regulations, the former 15 hierarchy of medical opinions—in which we assign presumptive weight based on the extent of the 16 doctor's relationship with the claimant—no longer applies.”). “Now, an ALJ’s decision, including 17 the decision to discredit any medical opinion, must simply be supported by substantial evidence.” 18 Woods, 32 F.4th at 787. 19 Supportability and consistency are the most important factors in evaluating the 20 persuasiveness of medical opinions. See Woods, 32 F.4th at 791 (citing 20 C.F.R. § 404.1520c(a)). 21 “Supportability means the extent to which a medical source supports the medical opinion by 22 explaining the relevant objective medical evidence.” Id. at 791-92 (cleaned up) (citing 20 C.F.R. § 23 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is consistent with the 24 evidence from other medical sources and nonmedical sources in the claim.” Id. at 792 (cleaned up) 25 (citing 20 C.F.R. § 404.1520c(c)(2)). The third factor—“relationship with the claimant”— 26 encompasses “the length and purpose of the treatment relationship, the frequency of examinations, 27 the kinds and extent of examinations that the medical source has performed, ... and whether the 1 (citing 20 C.F. R. § 404.1520c(c)(3)(i)–(v)). The ALJ must explain how he considered 2 supportability and consistency, and may, but is not required, to explain how he considered factors 3 three, four, and five. See id. at 792; see also 20 C.F.R. § 404.1520c(b)(2). 4 The “ALJ cannot reject an examining or treating doctor’s opinion as unsupported or 5 inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 6 F.4th at 792 (cleaned up). “The agency must articulate how persuasive it finds all of the medical 7 opinions and explain how it considered the supportability and consistency factors in reaching these 8 findings.” Id. (cleaned up) (citing 20 C.F.R. §§ 404.1520c(b), 404.1520c(b)(2)). 9 A. Dr. Bhandari and Psychiatric Nurse Horn 10 Plaintiff contends the ALJ erred in his consideration of the opinions of her treating 11 providers Dr. Bhandari and Psychiatric Nurse Horn. 12 In July 2020, Nurse Horn completed a Mental Medical Source Statement for Plaintiff that 13 was co-signed by Dr. Bandari. (AR 1308-1312.) Nurse Horn had been treating Plaintiff on a 14 monthly basis for the preceding four months for bipolar disorder and depression. (AR 1309.) She 15 found Plaintiff had poor focus and concentration and heightened anxiety such that she was 16 markedly limited in understanding and memory, the ability to carry out detailed instructions, 17 ability to perform activities on a schedule, and the ability to complete a normal 18 workday/workweek without interruptions. (AR 1310-1311.) She concluded Plaintiff was 19 moderately limited in her ability to carry out short and simply instructions, maintain attention and 20 concentration for extended periods of time, sustain a normal routine without special supervision, 21 and make simple work-related decisions. (AR 1310-1311.) Nurse Horn found Plaintiff generally 22 had mild limitations with her social interactions except she moderately limited in her ability to 23 interact appropriately with the general public. (AR 1311.) Finally, as to her functional 24 limitations, Nurse Horn concluded Plaintiff was markedly limited in her understanding, 25 remembering, and applying of information, and her concentration, persistence, and pace, but 26 moderately limited in her ability to interact with others and adapt or manage herself. (AR 1312.) 27 Plaintiff was likely to have good days and bad days and would be absent more than four days a 1 to understand, remember, and carry out complex instructions; maintain concentration, attention, 2 and persistence; and complete a normal workday and workweek without interruptions from 3 psychologically based symptoms were all poor. (AR 318.) 4 The ALJ found these opinions

5 not persuasive because they are not consistent with or supported by the objective medical evidence indicating relatively normal findings 6 except occasional abnormalities, which are noted above. In addition, the treatment provided by both providers appears to be over a short 7 span of time and the opinions appear to be based on the claimant’s self-report with no objective evidence to support them. 8 (AR 23.) Plaintiff contends the ALJ erred in (1) discounting Nurse Horn and Dr. Bhandi’s 9 opinions based on their reliance on Plaintiff’s self-reports of her symptoms, and (2) failing to 10 specifically identify the objective evidence that contradicted their opinions. 11 There is a tension between the ALJ’s reliance on Plaintiff’s treating providers’ opinions to 12 find severe impairments of bipolar/mood disorder, anxiety, and autism spectrum disorder, and his 13 finding these same opinions were not sufficiently supported with respect to the extent of her 14 limitations because they were based on Plaintiff’s self-reports. “A physician’s opinion of 15 disability premised to a large extent upon the claimant’s own accounts of his symptoms and 16 limitations may be disregarded where those complaints have been properly discounted.” Buck v. 17 Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (citation omitted).2 As discussed below, the Court 18 finds the ALJ’s rejection of Plaintiff’s subjective symptom testimony is not supported by 19 substantial evidence. Further, the ALJ implicitly accepted Plaintiff’s self-reports at least in part 20 when he found they supported moderate limitations in understanding, remembering or applying 21 information; interacting with others, and concentrating, persisting or maintaining pace.” (AR 20.) 22 The ALJ erred in failing to explain why Plaintiff’s self-reports were sufficient to find moderate 23 limitations in these categories, but insufficient to support the opinions of her treating providers. 24 As to the objective evidence, the ALJ did not identify the objective medical evidence 25 which was inconsistent with Dr. Bhandari and Nurse Horn’s findings. (AR 23.) The Court, 26 27 1 however, is mindful of its obligation to consider the totality of the ALJ’s opinion. In the section 2 of his opinion discussing whether Plaintiff’s impairments supported a listing, the ALJ consistently 3 relies on Plaintiff’s “normal” mental status examinations as a basis for rejecting her treating 4 providers opinions regarding her marked limitations. (AR 20.) The ALJ appears to base the 5 “normal” finding on (1) treatment notes indicating Plaintiff is “pleasant,” “cooperative,” and 6 “attending well” during examinations; and (2) her performance on certain cognitive tests 7 administered by the consultative medical examiner. (AR 20.) Neither is substantial evidence 8 supporting the ALJ’s finding. 9 First, that Plaintiff presented as pleasant and cooperative on some occasions must be 10 viewed in the context of a “holistic view of the record.” Ghanim v. Colvin, 763 F.3d 1154, 1162 11 (9th Cir. 2014). A few positive observations do not render a medical professional’s diagnosis 12 unsupported. See Smith v. Kijakazi, 14 F.4th 1108, 1115 (9th Cir. 2021) (“Physician reports of 13 improvement are [ ] not sufficient to undermine the repeated diagnosis of the alleged mental health 14 conditions.”) (cleaned up). For example, while the ALJ cites to treatment notes indicating 15 Plaintiff’s mood was “better,” the ALJ ignores the report from a week later stating: “Mood: “It’s 16 been pretty difficult.” (Compare AR 20 (citing AR 390 (6F at 14) with AR 398 (6F at 7).) The 17 symptoms of mental health conditions often “wax and wane in the course of treatment. Cycles of 18 improvement and debilitating symptoms are a common occurrence, and in such circumstances it is 19 error for an ALJ to pick out a few isolated instances of improvement over a period of months or 20 years and to treat them as a basis for concluding a claimant is capable of working.” Garrison v. 21 Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Moreover, reports of improvement must be examined 22 in context—a relative improvement in a claimant’s symptoms may not mean they are not disabled. 23 See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who suffers from 24 severe panic attacks, anxiety, and depression makes some improvement does not mean that the 25 person’s impairments no longer seriously affect her ability to function in a workplace.”). 26 Nor does the actual evidence support the ALJ’s conclusion. For example, one of the pages 27 cited by the ALJ as demonstrating her pleasant demeanor actually states “Attitude and Behavior: 1 (4F at 2); see also AR 316 (2F at 3) (indicating Plaintiff’s memory was “impaired,” her mood 2 “anxious,” and her affect “blunted.”); AR 629 (10F at 168) (“I am having intense sedating side 3 effects and feeling very depressed); AR 639 (6F at 169) (“unbearable manic feelings”; “it’s been 4 severe i’m just very good at hiding it sometimes”); AR 644 (“Feels unstable and in crisis. 5 Medication works for them, but the doses are intolerable right now. Patient reported that her 6 symptoms are very severe. Endorses manic symptoms, terror, anxiety, racing thoughts. Having 7 suicidal thoughts, denies plans, means, or intent.”). 8 Second, the ALJ’s reliance on Plaintiff’s performance on certain cognitive tests including 9 the ability “to follow a 3-step command, recall five digits forward and backward, perform serial 7s 10 correctly on the first attempt, and spell the work [sic] FORGET forward and backward” as a basis 11 for the “normal” findings is not supported by substantial evidence. (AR 20.) The same examiner 12 concluded Plaintiff was in the low average range for the Working Memory Index, Perceptual 13 Reasoning Index, and her Processing Speed Index, and had a full scale IQ of 84. (AR 370.) The 14 ALJ nonetheless found Plaintiff was no more than moderately limited in concentrating, persisting 15 or maintaining pace because of “her relatively normal findings on mental status examinations.” 16 However, as discussed above, the ALJ’s characterization of Plaintiff’s findings as “normal” is not 17 supported by substantial evidence. 18 *** 19 In sum, the ALJ’s rejection of the opinions of Plaintiff’s treating providers Dr. Bhandari 20 and Nurse Horn is not supported by substantial evidence. 21 II. SUBJECTIVE SYMPTOM TESTIMONY 22 The Ninth Circuit has “established a two-step analysis for determining the extent to which 23 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 24 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 25 evidence of an underlying impairment which could reasonably be expected to produce the pain or 26 other symptoms alleged.” Id. “Second, if the claimant meets this first test, and there is no evidence 27 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms 1 F.3d 1028, 1036 (9th Cir. 2007) (cleaned up). If the ALJ’s assessment “is supported by substantial 2 evidence in the record, [courts] may not engage in second-guessing.” Thomas v. Barnhart, 278 3 F.3d 947, 959 (9th Cir. 2002) (cleaned up). 4 Applying the two-step analysis, the ALJ first determined Plaintiff’s “medically 5 determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 22.) 6 Because Plaintiff met the first part of the test, the ALJ was required to provide “specific, clear and 7 convincing reasons” for rejecting Plaintiff’s testimony regarding the severity of her symptoms, or 8 else find evidence of malingering. See Lingenfelter, 504 F.3d at 1036. The ALJ did not find 9 evidence of malingering, but found Plaintiff’s “statements concerning the intensity, persistence 10 and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and 11 other evidence in the record for the reasons explained in this decision.” (AR 22.) 12 It appears the ALJ based this finding on Plaintiff’s “normal” mental status examinations; 13 her “self-employment as a certified health coach;” her ability to obtain an undergraduate degree; 14 her presentation at the hearing; and her emails with her providers indicating she was not compliant 15 with her prescribed treatment. (AR 22-23.) The Court addresses each in turn. 16 First, as discussed above, substantial evidence does not support the ALJ’s reliance on 17 “normal” findings as a basis for discounting Plaintiff’s subjective symptom testimony. While the 18 ALJ highlights portions of the record which describe “normal” findings, the ALJ ignores 19 statements—often from the very same visit—which document abnormal mood or affect. 20 Second, the ALJ’s reliance on Plaintiff’s “self-employment as a certified health coach” and 21 her “report[] she worked Mondays, Wednesdays, and Fridays and has had 10 clients” is likewise 22 not supported by substantial evidence. (AR 22.) While the ALJ does not cite anything in support 23 of this purported work history, the Commissioner cites four pages of the administrative record. 24 (Dkt. No. 13 at 9 (citing AR 369, 389, 502, 608).) These pages, however, shed little light on 25 Plaintiff’s employment. They do not indicate anything about the work—how long she has done it, 26 how many hours a day she spends doing it, or critically, what the work actually involves. To be 27 sure, evidence of a claimant’s performance of work after the alleged onset of disability can 1 2006). But here, substantial evidence does not support the ALJ’s reliance on Plaintiff’s self- 2 employment given the absence of any evidence regarding the work. 3 Third, the ALJ’s reliance on Plaintiff’s ability to obtain an undergraduate degree is also not 4 supported by substantial evidence. True, Plaintiff completed her undergraduate degree, but the 5 ALJ ignores Plaintiff’s testimony that she had to drop out of her undergraduate degree program in 6 New York when she started experiencing a manic episode and after two years of treatment, she 7 entered a bachelor completion program in California which provided “a lot of like support” such 8 that she was eventually able to complete her undergraduate degree. (AR 39.) 9 Fourth, Plaintiff’s emails to her providers demonstrating she was not compliant with her 10 prescribed treatment are not substantial evidence supporting the ALJ’s discounting of Plaintiff’s 11 subjective symptom testimony.3 An ALJ may discount a claimant’s symptom testimony based on 12 the claimant’s unexplained or inadequately explained failure to follow a prescribed course of 13 treatment. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). However, 14 when, as here, there is evidence the mental illness itself appears to be a cause of the claimant’s 15 noncompliance, the AJL should address that possibility and explain why he is relying on the 16 claimant’s noncompliance despite the fact it might be caused by Plaintiff’s mental illness itself. 17 See Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014) (“[W]e do not punish the mentally ill 18 for occasionally going off their medication when the record affords compelling reason to view 19 such departures from prescribed treatment as part of claimants’ underlying mental afflictions.”). 20 Finally, to the extent the ALJ relied on Plaintiff having “presented very well during the 21 hearing by answering questions asked of her in a responsive and cogent manner,” the ALJ does 22 not explain why this is a basis for discounting her subjective symptom testimony. (AR 22.) In 23 any event, “an ALJ’s personal observations may be used only in ‘the overall evaluation of the 24 credibility of the individual’s statements’” and cannot “form the sole basis for discrediting a 25

26 3 The Commissioner’s insistence that the ALJ did not cite these emails as a basis for his rejection of her symptom testimony, but only as an explanation for his RFC limitations, is unsupported by 27 the language of the ALJ’s decision which includes no such explanation. (Compare Dkt. No. 13 at 1 person’s testimony.” Orn v. Astrue, 495 F.3d 625, 639–40 (9th Cir. 2007) (quoting S.S.R. 96–7p 2 at 8). Because the ALJ’s other reasons for rejecting Plaintiff’s testimony are not supported by 3 substantial evidence, the ALJ’s personal observations standing alone cannot support the adverse 4 credibility finding. 5 *** 6 In sum, the ALJ’s rejection of Plaintiff’s subjective symptom testimony does not satisfy 7 the “demanding” “clear and convincing standard.” Garrison, 759 F.3d at 1013. 8 III. THE ALJ’S REJECTION OF THE LAY WITNESS TESTIMONY 9 Plaintiff contends the ALJ erred in failing to discuss the third-party function report 10 submitted by her mothers. (AR 229.) The Commissioner counters that under the new regulations 11 the ALJ is “not required to articulate how [he] considered evidence from nonmedical sources.” 12 See 20 C.F.R. §§ 404.1520c(d). The Ninth Circuit has “not yet addressed whether under the new 13 regulations an ALJ is still required to provide germane reasons for discounting lay witnesses.” 14 Stephens v. Kijakazi, No. 22-35998, 2023 WL 6937296, at *2 (9th Cir. Oct. 20, 2023). Instead, on 15 the two occasions the Ninth Circuit has been faced with the question, it had declined to decide the 16 issue under the harmless error doctrine. See id.; Kennedy v. O’Malley, No. 22-35866, 2024 WL 17 242992, at *2 (9th Cir. Jan. 23, 2024). Because, as discussed below, it is necessary to remand this 18 action to the ALJ, the Court declines to address this open question until there is a complete record. 19 On remand, the ALJ shall consider the totality of the evidence in reviewing Plaintiff’s application. 20 IV. HARMLESS ERROR 21 Given the lack of substantial evidence to support the ALJ’s consideration of the medical 22 evidence and subjective symptom testimony, his decision cannot stand. The Court thus need not 23 consider Plaintiff’s additional argument regarding the ALJ’s step five determination. The ALJ’s 24 errors here go to the heart of the disability determination and are not harmless. “[A] reviewing 25 court cannot consider the error harmless unless it can confidently conclude that no reasonable 26 ALJ, when fully crediting the testimony, could have reached a different disability determination.” 27 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Had the ALJ not erred in 1 could have reasonably come to a different conclusion regarding Plaintiff’s capacity to work. See 2 Stout, 545 F.3d at 1056 (error was not harmless where crediting lay testimony supported a 3 conclusion the plaintiff's mental impairments would preclude him from returning to gainful 4 employment). 5 V. REMEDY 6 Plaintiff asks the Court to remand the case for the payment of benefits or, alternatively, for 7 further proceedings. When courts reverse an ALJ’s decision, “the proper course, except in rare 8 circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. 9 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (internal citations omitted). A remand for an award of 10 benefits is proper however, “where (1) the record has been fully developed and further 11 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 12 legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; 13 and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to 14 find the claimant disabled on remand.” Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) 15 (internal citations and quotation marks omitted). 16 Here, prong one is not satisfied because the record has not been fully developed. Because 17 the ALJ erred in discounting Dr. Bhandi and Nurse Horn’s opinions and rejecting Plaintiff’s 18 subjective symptom testimony, there are outstanding issues that must be resolved before a final 19 determination can be made. Prong two has been satisfied because as discussed above, the ALJ 20 gave legally insufficient reasons for Dr. Bhandi and Nurse Horn’s opinions, as well as Plaintiff’s 21 subjective symptom testimony. The third prong is not satisfied because it is not clear from the 22 record the ALJ would be required to find Plaintiff disabled if the medical opinions were properly 23 evaluated and Plaintiff’s symptom testimony was properly credited. For instance, to determine 24 Plaintiff’s disability status, the ALJ should reconcile the conflicting medical opinions, and fully 25 develop the other evidence in the record, including Plaintiff’s work activity. Because the three 26 elements are not met, further proceedings are warranted. 27 // 1 CONCLUSION 2 For the reasons stated above, the Court REVERSES the ALJ’s decision and REMANDS 3 || for further proceedings consistent with this Order. 4 This Order disposes of Docket Nos. 11, 13. 5 6 IT IS SO ORDERED. 7 Dated: July 18, 2024 8 ’ ne 9 JACQUELINE SCOTT CORLE 10 United States District Judge 11 12

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