1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS EUGENE SMITH, No. 2:18-cv-2757-AC 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16
17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II 20 of the Social Security Act, 42 U.S.C. §§ 401-34, and for Supplemental Security Income (“SSI”) 21 under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f.1 22 For the reasons that follow, the court will GRANT plaintiff’s motion for summary 23 judgment, and DENY the Commissioner’s cross-motion for summary judgment. 24 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 25 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). SSI is paid to financially needy disabled persons. 42 U.S.C. 26 § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the Act, § 1381 et seq., is the Supplemental 27 Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall below specified levels . . .”). 28 1 I. PROCEDURAL BACKGROUND 2 Plaintiff protectively applied for disability insurance benefits and for supplemental 3 security income on September 18, 2015. Administrative Record (“AR”) 16.2 The disability onset 4 date for both applications was alleged to be January 28, 2013. Id. The applications were 5 disapproved initially and on reconsideration in 2015 and 2016, respectively. AR 112-17, 119-24. 6 On August 30, 2017, ALJ Christopher Knowdell presided over a video hearing in Sacramento, 7 CA, on plaintiff’s challenge to the disapprovals. AR 33-61 (transcript). Plaintiff appeared from 8 Redding, CA, with his representative Glenn Skinner. AR 33-35. Vocational Expert Kathleen 9 Spencer also testified. Id. 10 On December12, 2017, the ALJ issued an unfavorable decision, finding plaintiff “not 11 disabled” under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and 12 Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 16-27 (decision), 13 28-32 (exhibit list). On August 20, 2018, after receiving a Request for Review dated December 14 15, 2017 as an additional exhibit, the Appeals Council denied plaintiff’s request for review, 15 leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 1-5 16 (decision). 17 Plaintiff filed this action on October 12, 2018. ECF No. 1; see 42 U.S.C. §§ 405(g), 18 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 7, 8. The 19 parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the 20 Commissioner, have been fully briefed. ECF Nos. 14 (plaintiff’s summary judgment motion), 17 21 (Commissioner’s summary judgment motion). 22 II. FACTUAL BACKGROUND 23 Plaintiff was born in 1981, and accordingly was 31 years old on the alleged disability 24 onset date, making him a “younger person” under the regulations. AR 26, 217; see 20 C.F.R 25 §§ 404.1563(c), 416.963(c) (same). Plaintiff has a high school education, and can communicate 26 in English. AR 26, 347. 27
28 2 The AR is electronically filed at ECF Nos. 11-3 to 11-10 (AR 1 to AR 494). 1 III. LEGAL STANDARDS 2 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 3 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 4 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 5 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 6 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 7 Substantial evidence is “more than a mere scintilla,” but “may be less than a 8 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such relevant 9 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 11 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 12 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 13 Although this court cannot substitute its discretion for that of the Commissioner, the court 14 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 15 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 16 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 17 court must consider both evidence that supports and evidence that detracts from the ALJ’s 18 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 19 “The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 21 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 22 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 23 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 24 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 25 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS EUGENE SMITH, No. 2:18-cv-2757-AC 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16
17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II 20 of the Social Security Act, 42 U.S.C. §§ 401-34, and for Supplemental Security Income (“SSI”) 21 under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f.1 22 For the reasons that follow, the court will GRANT plaintiff’s motion for summary 23 judgment, and DENY the Commissioner’s cross-motion for summary judgment. 24 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 25 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). SSI is paid to financially needy disabled persons. 42 U.S.C. 26 § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the Act, § 1381 et seq., is the Supplemental 27 Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall below specified levels . . .”). 28 1 I. PROCEDURAL BACKGROUND 2 Plaintiff protectively applied for disability insurance benefits and for supplemental 3 security income on September 18, 2015. Administrative Record (“AR”) 16.2 The disability onset 4 date for both applications was alleged to be January 28, 2013. Id. The applications were 5 disapproved initially and on reconsideration in 2015 and 2016, respectively. AR 112-17, 119-24. 6 On August 30, 2017, ALJ Christopher Knowdell presided over a video hearing in Sacramento, 7 CA, on plaintiff’s challenge to the disapprovals. AR 33-61 (transcript). Plaintiff appeared from 8 Redding, CA, with his representative Glenn Skinner. AR 33-35. Vocational Expert Kathleen 9 Spencer also testified. Id. 10 On December12, 2017, the ALJ issued an unfavorable decision, finding plaintiff “not 11 disabled” under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and 12 Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 16-27 (decision), 13 28-32 (exhibit list). On August 20, 2018, after receiving a Request for Review dated December 14 15, 2017 as an additional exhibit, the Appeals Council denied plaintiff’s request for review, 15 leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 1-5 16 (decision). 17 Plaintiff filed this action on October 12, 2018. ECF No. 1; see 42 U.S.C. §§ 405(g), 18 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 7, 8. The 19 parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the 20 Commissioner, have been fully briefed. ECF Nos. 14 (plaintiff’s summary judgment motion), 17 21 (Commissioner’s summary judgment motion). 22 II. FACTUAL BACKGROUND 23 Plaintiff was born in 1981, and accordingly was 31 years old on the alleged disability 24 onset date, making him a “younger person” under the regulations. AR 26, 217; see 20 C.F.R 25 §§ 404.1563(c), 416.963(c) (same). Plaintiff has a high school education, and can communicate 26 in English. AR 26, 347. 27
28 2 The AR is electronically filed at ECF Nos. 11-3 to 11-10 (AR 1 to AR 494). 1 III. LEGAL STANDARDS 2 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 3 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 4 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 5 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 6 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 7 Substantial evidence is “more than a mere scintilla,” but “may be less than a 8 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such relevant 9 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 11 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 12 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 13 Although this court cannot substitute its discretion for that of the Commissioner, the court 14 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 15 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 16 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 17 court must consider both evidence that supports and evidence that detracts from the ALJ’s 18 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 19 “The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 21 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 22 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 23 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 24 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 25 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 26 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 27 evidence that the ALJ did not discuss”). 28 //// 1 The court will not reverse the Commissioner’s decision if it is based on harmless error, 2 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 3 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 4 2006) (quoting Stout v. Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 5 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 6 IV. RELEVANT LAW 7 Disability Insurance Benefits and Supplemental Security Income are available for every 8 eligible individual who is “disabled.” 42 U.S.C. §§ 423(a)(1)(E) (DIB), 1381a (SSI). Plaintiff is 9 “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 10 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 11 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 12 The Commissioner uses a five-step sequential evaluation process to determine whether an 13 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 14 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 15 process to determine disability” under Title II and Title XVI). The following summarizes the 16 sequential evaluation: 17 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 18 20 C.F.R. §§ 404.1520(a)(4)(i), (b) and 416.920(a)(4)(i), (b). 19 Step two: Does the claimant have a “severe” impairment? If so, 20 proceed to step three. If not, the claimant is not disabled. 21 Id., §§ 404.1520(a)(4)(ii), (c) and 416.920(a)(4)(ii), (c). 22 Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 23 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 24 Id., §§ 404.1520(a)(4)(iii), (d) and 416.920(a)(4)(iii), (d). 25 Step four: Does the claimant’s residual functional capacity make him 26 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 27 Id., §§ 404.1520(a)(4)(iv), (e), (f) and 416.920(a)(4)(iv), (e), (f). 28 1 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 2 the claimant is disabled. 3 Id., §§ 404.1520(a)(4)(v), (g) and 416.920(a)(4)(v), (g). 4 The claimant bears the burden of proof in the first four steps of the sequential evaluation 5 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 6 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 7 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 8 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 9 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 10 V. THE ALJ’s DECISION 11 The ALJ made the following findings: 12 1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2018. 13 2. [Step 1] The claimant has not engaged in substantial gainful 14 activity since January 28, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.) 15 3. [Step 2] The claimant has the following severe impairments: disc 16 protrusions at T12-L1, L4-5, and L5-S1; spondylosis at C4-5 and C5- 6; major depressive disorder; post-traumatic stress disorder; 17 generalized anxiety disorder; panic disorder; and dependent personality traits (20 CFR 404.1520(c) and 416.920(c)). 18 4. [Step 3] The claimant does not have an impairment or combination 19 of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 20 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 21 5. [Preparation for Step 4] The claimant has the residual functional 22 capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except: he could frequently climb and stoop; he could 23 frequently reach overhead with the dominant right upper extremity; he could perform simple, repetitive tasks involving occasional 24 interaction with the public and co-workers. 25 6. [Step 4] The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965). 26 7. [Step 5] The claimant was born [in 1981] and was 31 years old, 27 which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). 28 1 8. [Step 5, continued] The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 2 and 416.964). 3 9. [Step 5, continued] The claimant has gained no transferrable skills from his past relevant work. 4 10. [Step 5, continued] Considering the claimant’s age, education, 5 work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant 6 can perform (20 CFR 404.1569, 404. 1569(a), 416.969, and 416.969(a)). 7 11. The claimant has not been under a disability, as defined in the 8 Social Security Act, from January 28, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). 9 10 AR 18-27. 11 As noted, the ALJ concluded that plaintiff was “not disabled” under Sections 216(i) and 12 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and Section 1614(a)(3)(A) of Title XVI 13 of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 27. 14 VI. ANALYSIS 15 Plaintiff alleges that the ALJ erred by improperly rejecting the opinions of two examining 16 physicians, Dr. Cormier and Dr. Sunde. ECF No. 14 at 9. 17 A. The Medical Opinion Evidence and Pertinent Medical Records 18 Because plaintiff challenges only the treatment of medical opinion evidence related to his 19 mental health impairments, only opinions/portions of opinions related to mental health are 20 addressed here. The relevant psychiatric record before the ALJ included the medical opinions of 21 consultative examining psychologist Dr. Sid Cormier, consultative examining psychologist Dr. 22 Chester Sunde, non-examining State agency reviewing physician Dr. Timothy Shumacher, non- 23 examining State agency reviewing physician Dr. Randall Garland, and records from the Anderson 24 Walk-in Medical Clinic and Native American Mental Health. AR 24-26. Plaintiff also submitted 25 to consultative physical examinations by Dr. Roger Wagner and Dr. Guy Corkill. 26 Plaintiff met with Dr. Corkill, consultative examiner, at North State Medical Exams clinic 27 in November 2013 for a “complete internal consultation” examination. AR 340-45. Dr. Corkill 28 primarily focused on plaintiff’s physical ailments, but also noted his complaints of anxiety, 1 insomnia, and difficulties with concentration and memory. AR 341-42. Dr. Corkill also reported 2 that plaintiff had no history of inpatient psychiatric treatment or outpatient counseling. AR 341- 3 42. Plaintiff denied any history of delusions or hallucinations. AR 342. Dr. Corkill noted that 4 plaintiff was fully oriented, pleasant, and cooperative, with “good” eye contact. AR 343. 5 Plaintiff responded to Dr. Corkill appropriately, and mental status testing showed intact memory. 6 Id. 7 The following month, plaintiff underwent a consultative psychological examination with 8 Dr. Sunde. AR 346-49. Plaintiff complained of severe anxiety and depression related to multiple 9 car accidents and a history of having been molested as a child, which interferes with his 10 concentration, ability to ride in cars, meet new people, and causes him to ruminate when 11 presented with any type of stressor. AR 346. Dr. Sunde noted that plaintiff was not taking 12 medication because he could not afford to continue prior prescriptions. AR 346. Plaintiff was 13 previously on Klonopin, which helped “a little.” Id. Plaintiff also reported that he has had 14 counseling over the years, in addition to medication, but has not had ongoing treatment due to 15 lack of resources. AR 347. 16 Dr. Sunde recorded that plaintiff displayed “good” grooming and “fair” eye contact, but 17 that he exhibited slowed pace, “significant” impairment in concentration, and only “fair” 18 persistence, and was fidgety throughout the interview. AR 347-48. Dr. Sunde found plaintiff had 19 an average fund of knowledge, intact abstract thinking, and intact judgment and insight, he had 20 intact (but slowed) memory, concentration, and ability to perform serial threes calculations 21 (though he was “quite slow.”). AR 348. Plaintiff made two errors on serial sevens. Id. Dr. 22 Sunde reported Smith’s mood as “extremely anxious” and “somewhat depressed,” with congruent 23 affect. AR 348. Plaintiff’s thoughts were distracted, his speech was circumstantial and at times 24 tangential, and he was preoccupied with his anxiety. AR 348. 25 Dr. Sunde diagnosed plaintiff with generalized anxiety disorder, panic disorder, and 26 dependent personality traits. AR 348. Dr. Sunde concluded that plaintiff would have no 27 impairment in his ability to perform simple commands, mild to moderate impairment in 28 performing complex commands, and moderate to marked (or simply marked) impairment in his 1 ability to comply with job rules of safety and attendance, maintain persistence and pace in the 2 workplace, respond to change in the workplace, and interact appropriately with supervisors, 3 coworkers, and the public. AR 349. 4 Plaintiff underwent another consultative psychological examination in November 2015, 5 this time with Dr. Cormier. AR 354-60. Dr. Cormier noted that plaintiff was “in very obvious 6 psychological distress and demonstrated verbal and nonverbal behavior consistent with 7 significant anxiety and indicated that he is uncomfortable being evaluated by older men.” AR 8 355. Dr. Cormier reported plaintiff related to him in a “very unusual manner” during the 9 evaluation and at several points insistent that the door be closed. AR 355. At times during the 10 examination plaintiff “appeared somewhat overwhelmed and did not exert efforts consistent with 11 his probable true levels of cognitive functioning” and though he “could not say” that plaintiff was 12 malingering, Dr. Cormier felt that at times plaintiff let his anxiety become more exaggerated than 13 it needed to be. Id. 14 Plaintiff complained of anxiety and depression, but reported that he was not taking any 15 psychotropic medication at that time. AR 355-56. Plaintiff denied any history of inpatient 16 psychiatric treatment and stated that he had been “in and out of counseling.” AR 356. Plaintiff 17 reported that his hobbies included taking care of his pets, watching television, and spending time 18 on his computer. Id. It was noted that plaintiff reportedly left his last job as a paralegal because 19 he moved, rather than due to a psychiatric breakdown. AR 359. Dr. Cormier noted that plaintiff 20 was fully oriented, with intact thought processes, concentration, and foresight, and there was no 21 evidence of hallucinations or delusions. AR 356. Plaintiff’s scores on cognitive testing fell in the 22 “below average” or “moderately/severely” impaired ranges. AR 357-58. However, Dr. Cormier 23 noted that plaintiff’s general vocabulary, word usage, reported history, and ability to 24 conceptualize suggested that he had “average intellectual functioning.” AR 356. 25 Dr. Cormier diagnosed mood disorder not otherwise specified, and episodic significant 26 anxiety; posttraumatic stress disorder and dementia were to be ruled out. AR 358. Dr. Cormier 27 concluded that plaintiff had mild to moderate impairment in his ability to perform not only 28 complex and detailed tasks, but simple and repetitive tasks as well. AR 359. Dr. Cormier opined 1 that plaintiff’s psychiatric symptoms would episodically impair his ability to work on a consistent 2 basis. AR 359. He concluded that plaintiff had mild to moderate impairment in his ability to 3 complete a normal workday (or workweek) without interruptions from his psychiatric symptoms 4 and that plaintiff had “probable” significant impairment in his ability to deal with typical work 5 stresses, but did not have impairment in his ability to interact with a limited number of coworkers 6 or people in a work setting. AR 359. Dr. Cormier also concluded that plaintiff would be most 7 successful with highly supportive supervision and would do better with a female supervisor. AR 8 359. 9 In November of 2015, Dr. Wagner performed a “comprehensive internal medicine” 10 consultative physical examination which appears to have been focused primarily on plaintiff’s 11 physical ailments. AR 362. Dr. Wagner described Plaintiff as a “pleasant gentleman who 12 provides an adequate history” AR 363. Plaintiff did not discuss any psychiatric symptoms or 13 limitations at this exam, and he did not report taking any psychotropic medication. AR 362-63. 14 Plaintiff reported to Dr. Wagner that he was able to cook, clean, shop, attend to his personal care, 15 and live with friends. AR 363. 16 Medical reports from January 2016 show plaintiff was positive for memory loss secondary 17 to a traumatic brain injury. AR 368. In the notes, the male provider indicated that he would “be 18 happy” to continue treating plaintiff, but plaintiff expressed a desire to have a female provider 19 because males make him nervous. AR 370. The provider assessed a poor prognosis given 20 plaintiff’s young age and the nature of his injuries. Id. 21 Plaintiff received outpatient psychiatric care at the Native American Mental Health 22 Services (NAMHS) clinic in February 2016. AR 403-07. Plaintiff complained of depression, 23 anxiety, fatigue, and post-traumatic stress disorder symptoms. AR 406. Medical notes reflect 24 that plaintiff had normal appearance, behavior, speech, thought content, memory, fund of 25 knowledge, concentration, judgment, and insight during these visits. AR 403-04, 406-07. 26 Plaintiff’s treatment recommendations included psychotropic medication (Clonodine and Zoloft) 27 and outpatient counseling. AR 404-07. Plaintiff later sought treatment at the Anderson Walk-in 28 //// 1 Clinic, where it was recorded that he had “mild” cognitive impairment and traumatic brain injury. 2 AR 422-24. 3 B. Principles Governing the ALJ’s Consideration of Medical Opinion Evidence 4 The weight given to medical opinions depends in part on whether they are proffered by 5 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 6 1996).3 “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, 7 an ALJ may only reject it by providing specific and legitimate reasons that are supported by 8 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 9 “The general rule is that conflicts in the evidence are to be resolved by the Secretary and 10 that his determination must be upheld when the evidence is susceptible to one or more rational 11 interpretations.” Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). However, when the ALJ 12 resolves conflicts by rejecting the opinion of an examining physician in favor of the conflicting 13 opinion of another physician (including another examining physician), he must give “specific and 14 legitimate reasons” for doing so. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 15 1298-99 (9th Cir. 1999) (“Even if contradicted by another doctor, the opinion of an examining 16 doctor can be rejected only for specific and legitimate reasons that are supported by substantial 17 evidence in the record.”). 18 C. The ALJ Erred in Discounting the Opinions of Examining Physicians 19 The ALJ erred in discounting the medical opinions of Dr. Sunde and Dr. Cormier. In his 20 opinion, the ALJ first considered Drs. Cormier and Sunde’s opinions together and gave the 21 opinions little weight for the same reasons, before giving additional reasons to reject Dr. Cormier. 22 AR 24-25. First, the ALJ states that both opinions “provide disproportionately restrictive 23 limitations when compared to the amount of dedicated mental health-specific treatment” that 24 plaintiff received. AR 24. This is an impermissible basis to discount an opinion where the record 25 is clear that plaintiff’s inconsistency with mental health treatment was due to his inability to 26 3 For applications filed on or after March 27, 2017, the Commissioner has eliminated the treating 27 source rule and special deference to treating sources. See 20 C.F.R. § 404.1520c; see also Purdy v. Berryhill, 887 F.3d 7, 13 n.8 (1st Cir. 2018) (summarizing new regulations). The changes are 28 not applicable here because plaintiff filed in 2015. 1 afford treatment and the impact of the symptoms themselves. Plaintiff indicated to Dr. Sunde that 2 he was previously on medication for his mental impairments which helped “a little,” but that he 3 was unable to afford the medication. AR 346. It is improper to deny a person benefits because 4 they did not receive specific treatments due to the inability to afford those treatments. Gamble v. 5 Chater, 68 F.3d 319, 321 (9th Cir. 1995) (citing Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 6 1984) (“It flies in the face of the patent purposes of the Social Security Act to deny benefits to 7 someone because he is too poor to obtain medical treatment that may help him”). Further, 8 plaintiff testified that he waited so long to seek mental health treatment because he felt “hopeless” 9 and that nothing could be done to help his symptoms. AR 42. It is improper for an ALJ “to 10 chastise one with a mental impairment for the exercise of poor judgment in seeking 11 rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quoting Blankenship v. 12 Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)). 13 Second, the ALJ rejects Drs. Cormier and Sunde’s opinions for being inconsistent with 14 “material evidence including treating-source observations of logical thought process in addition to 15 calm and cooperative behavior.” AR 24, citing 399-407. The ALJ notes that the treatment notes 16 were unavailable for Drs. Cormier and Sunde to review. AR 24-25. The treatment records at 17 issue, however, contain references to psychological impairment as well as to logical thought 18 process and cooperative behavior. For example, on February 5, 2016, plaintiff reported having a 19 hard time with male authority figures due to being molested. AR 406. He was described as 20 having difficulty answering questions as he “ponders a lot.” AR 406. He presented with sad 21 mood and affect. AR 407. He was prescribed Clonidine and Zoloft. AR 407. 22 Finally, the ALJ rejects Dr. Cormier’s opinions because it was “based on somewhat 23 unreliable information” as Dr. Cormier indicated that there were indications at the exam that 24 plaintiff “let his anxiety become more exaggerated than it needed to be.” AR 25. The ALJ also 25 references Dr. Cormier’s recommendation that plaintiff immediately contact the local county 26 mental health agency for treatment, noting that such a recommendation was outside the scope of 27 the exam. Id. The ALJ’s reading of Dr. Cormier’s assessment is incomplete; indeed, although 28 Dr. Cormier reported potential exaggeration, he also reported that plaintiff was in “very obvious” 1 distress consistent with “significant anxiety.” AR 355. Further, Dr. Cormier noted and accounted 2 for potential exaggeration of some symptoms in his conclusions, so the ALJ’s reliance on the note 3 of potential exaggeration to discount Dr. Cormier’s conclusion essentially factors that issue in 4 twice. The reference to Dr. Cormier’s note that plaintiff should seek mental health treatment is 5 puzzling; such a note does not contradict his opinion in any way, it simply indicates Dr. Cormier 6 was concerned for plaintiff’s mental wellbeing. 7 D. Remand for an Immediate Award of Benefits 8 Because the ALJ did not provide “specific and legitimate reasons that are supported by 9 substantial evidence” for discounting the examining physicians’ opinions, the ALJ erred. Bayliss, 10 427 F.3d at 1216. The error in rejecting the two opinions was not harmless, because if differently 11 credited, the opinions may impact the assigned RCF and the determination of disability. 12 Accordingly, the court is authorized “to ‘revers[e] the decision of the Commissioner of Social 13 Security, with or without remanding the cause for a rehearing.’ ” Treichler v. Comm’r of Soc. 14 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). “[W]here the record has been developed fully 15 and further administrative proceedings would serve no useful purpose, the district court should 16 remand for an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 17 2000). Further development is necessary here; the ALJ must determine how to credit the 18 opinions and how the opinions, properly credited, impact the RFC. Thus, remand for further 19 consideration by the ALJ is appropriate. 20 VII. CONCLUSION 21 For the reasons set forth above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motion for summary judgment (ECF No. 14) is GRANTED; 23 2. The Commissioner’s cross-motion for summary judgment (ECF No. 17), is DENIED; 24 3. The matter is REVERSED and REMANDED to the Commissioner for further 25 consideration; and 26 //// 27 //// 28 //// 1 4. The Clerk of the Court shall enter judgment for plaintiff and close this case. 2 SO ORDERED. 3 | DATED: March 2, 2020 ~ 4 Attten— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13