1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN PAUL SMITH, No. 1:18-cv-01614-GSA 12 Plaintiff, 13 v. ORDER FOR REMAND PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g) 14 ANDREW SAUL, Commissioner of Social Security, 15 16 Defendant. 17 18 I. Introduction 19 Plaintiff Shawn Paul Smith (“Plaintiff”) seeks judicial review of the final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income pursuant to Title XVI of the Social Security Act. The matter is 22 currently before the Court on the parties’ briefs which were submitted without oral argument to 23 the Honorable Gary S. Austin, United States Magistrate Judge.1 See Docs. 22, 23 and 26. Having 24 reviewed the record as a whole, the Court finds that the ALJ’s decision was not based on 25 substantial evidence. Accordingly, the case is remanded for further proceedings in accordance 26 with this opinion. 27 ///
28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 6 and 9. 1 II. Procedural Background 2 On August 3, 2015, Plaintiff filed an application for supplemental security income 3 alleging disability beginning January 1, 2011.2 AR 24. The Commissioner denied the application 4 initially on December 7, 2015, and following reconsideration on March 2, 2016. AR 24. 5 On March 7, 2016, Plaintiff filed a request for a hearing. AR 24. Administrative Law 6 Judge Sharon Madsen presided over administrative hearings on November 21, 2017. AR 39-59. 7 Plaintiff appeared and was represented by an attorney. AR 39. On February 28, 2018, the ALJ 8 denied Plaintiff’s application. AR 24-33. 9 The Appeals Council denied review on September 21, 2018. AR 10-13. On November 10 26, 2018, Plaintiff filed a complaint in this Court. Doc. 1. 11 III. Factual Background 12 A. Plaintiff’s Testimony 13 Plaintiff (born January 1969) lived with his daughter and grandchildren. AR 42-43. He 14 was able to perform his own personal care but did no household chores other than keeping his 15 own room clean. AR 44. Plaintiff was able to heat food in the microwave. AR 44. He did no 16 shopping and did not participate in any social activities. AR 44. Plaintiff spent his days napping 17 and watching television. AR 45. He had been clean and sober for over four years. AR 47. 18 Plaintiff attended school through the eleventh grade. AR 43. He did not have a driver’s 19 license. AR 43. 20 Plaintiff heard voices and “s[aw] things in the corners of [his] eyes.” AR 45. He had 21 anger issues. AR 45-46. Anxiety and pressure triggered angry outbursts. AR 46. He had 22 difficulty paying attention. AR 46. He continued to have problems with suicidal ideation. AR 23 48. Riding in a car and shopping made him paranoid. AR 49, 50. 24 Treatment consisted of medication, which was of little help. AR 46, 47. He was not 25 participating in group therapy because he did not get along with other group members. AR 46. 26
27 2 A prior application was denied. Although Plaintiff requested an administrative hearing he failed to appear and ALJ Sharon Madsen dismissed the hearing request on July 23, 2012. See AR 55-59, 60-64, The Appeals Council denied 28 review on January 30, 2013. AR 65-66. 1 B. Medical Records3 2 In October 2014, Plaintiff arrived at the Wasco State Prison Reception Center (WSP) to 3 serve a three-year prison term for assault with force to cause great bodily injury. AR 274. He 4 had an extensive criminal history, and this was his second prison term. AR 274. Plaintiff had 5 attempted suicide twice, most recently in 2008 by jumping from the second tier of the county jail. 6 AR 274. Plaintiff had also attempted suicide by hanging in 2005. AR 503. Plaintiff had no 7 history of mental health treatment when not incarcerated. AR 274. He had a history of drug use 8 since age 15, using marijuana, alcohol and methamphetamine. AR 274. 9 The record includes monthly mental health treatment plans at WSP from November 2014 10 through June 2015. AR 263-76, 294-304, 308-443, 458. Plaintiff’s mental health problems 11 included mood swings, depression and anxiety. AR 274. A December 2014 report noted that 12 Plaintiff was sad and experiencing more frequent auditory hallucinations (advocating suicide), 13 perhaps because of the absence of family contact and by anxiety induced by a cellmate who 14 teased about beating and raping Plaintiff. AR 316. 15 On December 22, 2014, Plaintiff was admitted to a crisis bed at the California Health Care 16 Facility with a diagnosis of major depressive disorder and suicidal ideation with plan (razor 17 blade). AR 487, 490, 503. On arrival, Plaintiff complained of increased depression; missing his 18 family, especially at the holidays; and visual and auditory hallucinations. AR 498. Plaintiff 19 responded well to medications. AR 544. On December 30, 2014, P. Smith, Ph.D., discharged 20 Plaintiff to WSP with referral to the EOP program.4 AR 490, 543. Plaintiff returned to WSP on 21 January 2, 2015. AR 500. 22 Upon his return to WSP, Plaintiff participated in EOP. AR 207, 541. The EOP program 23 included weekly group sessions, daily rounds with a licensed psychiatric technician and weekly 24 individual sessions with the psychiatric counselor. AR 339. Therapy addressed decision making, 25 impulse control, anger management, development of supportive daily routine, relaxation skills, 26 3 Additional medical records from correctional facilities are include in the record at AR 666-850. 27 4 In 2013, the California Department of Corrections and Rehabilitation introduced enhanced outpatient mental health treatment (EOP) for selected inmates. cdcr.ca..gov/news/2013/02/14/cdcr-unveils-newest-investment-in-prison-- 28 mental-health-care/ (accessed April 24, 2020). 1 education concerning psychiatric medications, and education and development of positive coping 2 skills. AR 339. 3 In January 2015, Plaintiff’s social worker noted his compliance with medications, which 4 seemed to be working. AR 314. In March 2015, Plaintiff’s social worker noted that Plaintiff was 5 having difficulty controlling his anger and had received four RVRs, including one for battery of 6 another inmate. AR 298. 7 Plaintiff arrived at Valley State Prison (VSP) in June 2015. AR 277. The record includes 8 monthly mental health treatment plans at VSP from June 2015 through Plaintiff’s parole in 9 September 2015.5 AR 277-91, 305-07, 457. Plaintiff’s monthly mental health treatment plan for 10 June 2015 included a referral to psychiatry for consideration of medication to address frequent 11 auditory and visual hallucinations. AR 277. Plaintiff’s social worker also noted that Plaintiff was 12 motivated to get better, attended 80 percent of the programs offered to him, and remained free of 13 disciplinary actions and “in control of his emotions especially anger.” AR 287. Plaintiff’s 14 diagnosis was Depressive Disorder NOS, Anxiety Disorder NOS, Polysubstance Dependence in a 15 Controlled Environment (DOC-Meth), Dysthymic Disorder, Psychotic Disorder NOS and Bipolar 16 Disorder (by self-report). AR 278, 473. His GAF was 45.6 AR 278, 473. In September 2015, 17 Plaintiff felt positive about a new medication, finding that it improved his interpersonal 18 interactions. AR 471. 19 Following his parole, Plaintiff spent approximately three months in a sober living facility 20 before moving in with his daughter and her family. AR 627. Plaintiff received supervision and 21 medication management through parole services. AR 627-65. In December 2015, Lynn Smith, 22 L.C.S.W., recommended Plaintiff for permanent general relief benefits noting that Plaintiff’s 23 ability to work was limited by panic attacks, low concentration and low memory. AR 600-01. 24 /// 25 ///
26 5 Plaintiff applied for supplemental security income in preparation for his parole from prison. 6 The Global Assessment of Functioning (GAF) scale is a rating from 0 to 100 and considers psychological, social, 27 and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, 32-35 (4th ed. American Psychiatric Association 1994). A GAF of 41-50 corresponds 28 to serious symptoms or a serious impairment in social, occupational, or school functioning. Id. 1 After moving in with his daughter’s family, Plaintiff reported experiencing anxiety and frequent 2 panic attacks in crowded areas.7 AR 636, 640, 642, 643 3 Beginning in January 2016, following his discharge from parole, Plaintiff received 4 psychiatric management from the Fresno County Department of Mental Health. AR 603-17. 5 Plaintiff participated in recovery groups. AR 610. . In February 2016, Plaintiff reported that he 6 had begun staying home when the family went shopping or out to eat at a crowded restaurant. 7 AR 644. In May 2016, despite excellent medication compliance, Plaintiff experienced worsening 8 symptoms. AR 639, 643. 9 In February 2017, Plaintiff discontinued Effexor, an antidepressant, after a fall that he 10 attributed to the medication. AR 607. After doing well without it Plaintiff concluded that he did 11 not require an antidepressant. AR 607. 12 In August 2017, Theresa Vincent, N.P., noted that without any discussion, Plaintiff had 13 left paperwork for an opinion that his mental health condition precluded employment. AR 604. 14 Noting that she would not complete the form, Ms. Vincent wrote, “[T]his prescriber does not see 15 a mental health reason for him to not seek work, albeit am not very familiar with him due to no 16 show and brief time of treatment.” AR 604. She added, “[H]e appears capable of working and I 17 am not familiar with him to legally be able to answer any of the requested information.” AR 604. 18 IV. Standard of Review 19 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 20 Commissioner denying a claimant disability benefits. “This court may set aside the 21 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 22 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 23 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 24 within the record that could lead a reasonable mind to accept a conclusion regarding disability 25 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 26 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 27 7 Plaintiff’s panic attacks were based, in part, on threats of retribution from his former gang. AR 637. Plaintiff’s 28 former gang affiliation was readily apparent from multiple visible gang tattoos, including facial tattoos. 1 omitted). When performing this analysis, the court must “consider the entire record as a whole 2 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 3 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 4 omitted). 5 If the evidence reasonably could support two conclusions, the court “may not substitute its 6 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 7 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 8 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 9 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 10 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 11 V. The Disability Standard 12 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 13 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 14 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 15 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 16 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 17 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 18 him, or whether he would be hired if he applied for work. 19 42 U.S.C. §1382c(a)(3)(B). 20 To achieve uniformity in the decision-making process, the Commissioner has established 21 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. § 22 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 23 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 24 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 25 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 26 medically determinable “severe impairments,” (3) whether these impairments meet or are 27 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 28 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 1 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 2 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 3 VI. Summary of the ALJ’s Decision 4 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 5 application date of August 3, 2015. AR 26. His severe impairments included: schizoaffective 6 disorder, anxiety disorder, bipolar II disorder, cannabis abuse, and a history of methamphetamine 7 and heroin abuse in remission. AR 26. None of the severe impairments met or medically equaled 8 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 9 416.920(d), 416.925 and 416.926). AR 27. 10 The ALJ concluded that Plaintiff had the residual functional capacity to perform a full 11 range of work at all exertional levels. AR 28. He was able to perform simple routine tasks with 12 occasional contact with the public, and to occasionally work with coworkers and supervisors in 13 the same building but not side by side. AR 28. 14 Plaintiff had no past relevant work. AR 31. Considering his age, education, work 15 experience and residual functional capacity, jobs that Plaintiff could perform were available in 16 significant numbers in the national economy. AR 32. Accordingly, the ALJ found that Plaintiff 17 was not disabled at any time from August 3, 2015, the application date, through February 28, 18 2018, the date of the decision. AR 33. 19 VII. Multiple Errors Require Reversal and Remand of the Residual Functional Capacity Analysis 20 Plaintiff contends that two errors mar the residual functional capacity analysis set forth in 21 the hearing decision: (1) the failure to consider the record as a whole, and (2) the failure to set 22 forth specific and legitimate reasons for rejecting the opinion of consultative psychiatrist Ekram 23 Michiel, M.D. The Commissioner responds that residual functional capacity analysis was legally 24 sound and based on the record as a whole. Having reviewed the record and the ALJ’s analysis, 25 the Court agrees with Plaintiff that errors in the analysis require reversal and remand. However, 26 the Court’s reasoning in reaching its conclusion is not fully consistent with the Plaintiff’s 27 contentions. 28 1 In applying the standards of review, the Court acknowledges that the Commissioner’s 2 limitations of personnel and budget sometimes result in imperfect but still acceptable 3 determinations of disability benefit applications. Such minor errors generally fall within the 4 broad deference that a district court provides to the expertise of a federal agency. The incomplete 5 and selective analysis of the record in this case does not reach the level at which it can be 6 affirmed as a matter of agency deference. First, the analysis of the medical and mental health 7 records is inadequate and suggests that the author of the opinion selected those portions of the 8 evidence supportive of a finding that Plaintiff was not disabled. Second, the perfunctory review 9 of Dr. Michiel’s opinion resulted in the author’s overlooking a significant and substantive error. 10 Ultimately, the Court must reject the residual functional capacity determination for lack of 11 compliance with applicable law and insufficient support from the record as a whole. 12 A. Determining Residual Functional Capacity 13 “Residual functional capacity is an assessment of an individual’s ability to do sustained 14 work-related physical and mental activities in a work setting on a regular and continuing basis.” 15 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 16 restrictions which result from an individual’s medically determinable impairment or combination 17 of impairments. SSR 96-8p. 18 A determination of residual functional capacity is not a medical opinion, but a legal 19 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 20 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 21 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 22 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so the 23 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary 24 ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 25 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 26 testimony.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). He or she properly 27 determines the weight to be given each medical opinion by considering the evidence in the record 28 as a whole. 20 C.F.R. § 416.927(c)(4) (“the more consistent an opinion is with the record as a 1 whole, the more weight we will give to that opinion”). The record must include objective 2 evidence to support the medical opinion of the claimant’s residual functional capacity. Meanel v. 3 Apfel, 172 F.3d 1111, 1113-14 (9th Cir. 1999). 4 The opinions of treating physicians, examining physicians, and non-examining physicians 5 are entitled to varying weight in residual functional capacity determinations. Lester v. Chater, 81 6 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 7 professional, who has a greater opportunity to know and observe the patient as an individual. Id.; 8 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The opinion of an examining physician is, 9 in turn, entitled to greater weight than the opinion of a non-examining physician. Pitzer v. 10 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An ALJ may reject an uncontradicted opinion of a 11 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 12 F.3d at 831. 13 Nurse practitioners such as Ms. Vincent are not evaluated as if they were physicians. A 14 nurse practitioner is not considered an acceptable medical source under 20 C.F.R. § 416.913.8 15 Instead, nurse practitioners are considered to be other sources. 20 C.F.R. § 416.913(d)(1) (listing 16 medical sources that are considered other sources, including nurse practitioners, physicians’ 17 assistants, naturopaths, chiropractors, audiologists, and therapists). Unlike the opinions of 18 physicians, the opinions of nurse practitioners are not entitled to special weight. An ALJ may 19 reject the opinions of other sources by giving “reasons germane to each witness for doing so.” 20 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Turner v. Comm’r of Soc. Sec. Admin., 613 21 F.3d 1217, 1224 (9th Cir. 2010). Factors used to evaluate a nurse practitioner’s opinion include: 22 (1) examining relationship; (2) length of treatment relationship and frequency of examination; (3) 23 supportability of opinion; (4) consistency with the record; (5) specialization; and (6) other factors 24 supporting or contradicting the opinion. 20 C.F.R. § 416.927 (c) and (f)(1). 25 ///
26 8 The Social Security Administration has recently adopted new rules applicable to claims filed after March 27, 2017, which expand the category of acceptable medical providers to include, among others, nurse practitioners. 20 C.F.R. 27 §§ 404.1502(a)(6), (7), (8); 416.902(a)(6), (7), (8) (2017); Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). The revisions do not apply to Plaintiff’s claim, which was filed August 28 3, 2015. 1 B. Medical Opinions 2 1. Agency Physicians 3 In October 2015 on initial review, psychiatrist Herbert Ochitill, M.D., identified Plaintiff 4 as having serious impairments consisting of affective disorders; anxiety disorders; schizophrenic, 5 paranoid and other functional psychotic disorders; and, substance addiction disorders. AR 71. 6 None of Plaintiff’s impairments satisfied a potentially applicable listing. AR 72. Dr. Ochitill 7 opined that Plaintiff had sustained concentration and persistence limitations; moderate limitations 8 in completing a workday and work week without interruptions from psychologically based 9 symptoms; and, moderate limitations in interacting with the general public, and in accepting 10 instructions and responding appropriately to criticism from supervisors. AR 73-75. Despite these 11 limitations, however, Plaintiff was not disabled. AR 78. 12 On reconsideration in March 2016, psychologist Anna M. Franco, Psy.D., found no 13 change in Plaintiff’s condition since initial review. AR 84. Accordingly, Dr. Franco adopted Dr. 14 Ochitill’s determination. AR 85-86. 15 2. Consultative Internal Medicine Report 16 In August 2017, internist Steven Stoltz, M.D., conducted an internal medicine 17 examination of Plaintiff. AR 588-99. In addition to psychiatric issues, Plaintiff reported low 18 back pain and hepatitis C. AR 588. He had been diagnosed with a compression fracture of L1 19 but received no treatment.9 AR 588. Plaintiff’s examination was generally within normal limits. 20 AR 590-92. 21 Dr. Stoltz opined that Plaintiff could sit, stand and walk for four hours at a time and for a 22 total of eight hours in an eight-hour workday. AR 593. He could lift 100 pounds occasionally 23 and 20 pounds frequently. AR 593. Plaintiff had no postural, manipulative, visual, 24 communicative or environmental limitations. AR 593. 25 /// 26 /// 27 9 Prison medical records indicate that Plaintiff experienced back pain due to an injury incurred when Plaintiff was 28 kicked. AR 741. 1 3. Consultative Psychiatric Report 2 Psychiatrist Ekram Michiel, M.D., completed a consultative psychiatric report in 3 September 2017. AR 620-26. Plaintiff complained of depression, anxiety, anger and auditory 4 and visual hallucinations. AR 623, 624. As a child he had a troubled school experience: He was 5 unable to focus, failed to complete homework, and was always fighting and in trouble. AR 623. 6 After leaving school he worked in his father’s roofing business. Plaintiff became depressed in 7 1996 when his brother took over the family roofing company following their father’s death and 8 refused to let Plaintiff work when his ongoing drug abuse made him drowsy and unfocused. AR 9 623. 10 Dr. Michiel observed signs of anxiety and shakiness. AR 625. Plaintiff was sometimes 11 silent “as if he were listening to internal stimuli.” AR 625. Testing revealed poor attention, 12 concentration, and immediate and long-term recall. AR 625-26. Dr. Michiel diagnosed attention 13 deficit hyperactivity (predominant inattentive, adult type) and psychotic disorder not otherwise 14 specified. AR 626. He estimated Plaintiff’s GAF score to be 48. AR 626. 15 In his narrative opinion, Dr. Michiel opined that Plaintiff was unable to maintain attention 16 and concentration to carry out simple job instructions. AR 626. In an attached medical source 17 statement, however, the doctor opined that Plaintiff had mild restrictions in carrying out simple 18 instructions. AR 620. The source statement also indicated that Plaintiff had marked limitations 19 in understanding, remembering and carrying out complex instructions; making judgments on 20 complex work-related decisions; and, responding appropriately to usual work situations and to 21 changes in a routine work setting. AR 620-21. He had moderate limitations in making judgments 22 on simple work-related decisions and interacting appropriately with supervisors and co-workers. 23 AR 620-21. 24 C. Analyzing a Claimant’s Residual Functional Capacity 25 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 26 testimony.” Magallanes, 881 F.2d at 750. He or she properly determines the weight to be given 27 each medical opinion by considering the evidence in the record. 20 C.F.R. § 416.927(c)(4) (“the 28 more consistent an opinion is with the record as a whole, the more weight we will give to that 1 opinion”). The record must include objective evidence to support the medical opinion of the 2 claimant’s residual functional capacity. Meanel, 172 F.3d at 1113-14. 3 As set forth above, “[t]his court may set aside the Commissioner’s denial of disability 4 insurance benefits when the ALJ’s findings . . . are not supported by substantial evidence in the 5 record as a whole.” Tackett, 180 F.3d at 1097. In making this determination, a court must 6 “consider the entire record as a whole and may not affirm simply by isolating a specific quantum 7 of supporting evidence.” Robbins, 466 F.3d at 882. Whether or not the ALJ intended to support 8 her decision by selecting only portions of the evidence to support a conclusion that Plaintiff was 9 not disabled, a review of the hearing decision reveals that the ALJ did not support the decision 10 with evidence in the record as a whole but selected only portions of the evidence tending to 11 support a denial of benefits. In addition, despite the absence of a treating physician’s opinion, 12 likely reflecting Plaintiff’s dependence on treatment by prison and county mental health 13 providers, the hearing decision reflects cursory consideration of the consultative psychiatric 14 evaluation and overlooks the contradiction concerning Plaintiff’s ability to work set forth in it. 15 D. The ALJ’s Rejection of Expert Medical Opinion 16 As stated above, non-examining agency professionals Herbert Ochitill, M.D., and Anna 17 M. Franco, Psy.D., agreed that Plaintiff had sustained concentration and persistence limitations; 18 moderate limitations in completing a workday and work week without interruptions from 19 psychologically based symptoms; and, moderate limitations in interacting with the general public, 20 and in accepting instructions and responding appropriately to criticism from supervisors. 21 Finding that later evidence from Fresno County Mental Health supported greater limitations, 22 however, the ALJ gave little weight to their opinion AR 30. 23 Having rejected the non-examining physician’s opinion as insufficiently restrictive, the 24 ALJ gave little weight to Dr. Michiel’s opinion because it was excessively restrictive: 25 Consultative psychiatrist Ekram Michiel, M.D., saw the claimant in September 2017. The claimant presented with complaints of 26 depression, auditory hallucinations, anxiety, and anger. He said he had difficulty completing tasks, paying attention, and he was 27 forgetful. The doctor noted that claimant’s mood was scared and sad, his attention and concentration were poor, and he was oriented times 28 two. The claimant was diagnosed with attention deficit hyperactivity 1 with predominant inattentive, adult type; and psychotic disorder, not otherwise specified. Dr. Michiel estimated the claimant’s GAF was 2 48 . . . The doctor concluded the claimant was unable to maintain attention and concentration to carry out simple job instructions. He 3 was able to handle his own funds if his history regarding not using drugs for four years was reliable. 4 Dr. Michiel conducted a detailed medical evaluation of the claimant. 5 Little weight has been accorded his opinion because other evidence shows the claimant is not as limited as determined by the doctor. It 6 appears the claimant exaggerated his abilities [sic] during the examination. 7 AR 30. 8 The ALJ never articulated what other evidence established that Plaintiff was not as limited 9 as Dr. Michiel opined. Nor does she provide any evidentiary basis for her conclusion that 10 Plaintiff “exaggerated his abilities [sic] during the examination.” No such evidence is readily 11 apparent in the Court’s review of Dr. Michiel’s report independently or in comparison with the 12 record as a whole. In short, the ALJ rejected all the expert opinions of record in favor of her own 13 assessment of Plaintiff’s ability to work. 14 An ALJ may not act as her own medical expert as she is “simply not qualified to interpret 15 raw medical data in functional terms.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). 16 Decisions addressing this issue frequently speak of an ALJ’s “play[ing] doctor and making [her] 17 own independent medical findings.” See, e.g., Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. 18 Cal. 2006). In this case, no medical or psychological opinion supported the ALJ’s conclusion that 19 Plaintiff was able to perform a full range of work at all exertional levels so long as his 20 interpersonal contact was limited. Further, the residual functional capacity determination failed 21 to consider Plaintiff’s impairments of attention, concentration and persistence, and inability to 22 complete workdays and work weeks without interruptions from psychological symptoms, despite 23 recognizing those deficits elsewhere in the opinion. 24 In addition to the lack of support for the residual functional capacity determination, the 25 ALJ’s evaluation of Dr. Michiel’s opinion evinces both an incomplete review of the opinion as a 26 whole and lack of understanding of its meaning. For example, the hearing decision recites Dr. 27 Michiel’s finding that Plaintiff was “oriented times two,” seemingly without recognizing this term 28 1 of art as an indication of a neurologic deficit. A mental status exam evaluates whether an 2 individual is “oriented times three,” that is oriented in person (what is your name?); time (what is 3 the date?); and place (what is the name of this place?). 4 merckmanuals.com/professional/neurologic disorders/neurologic-examination/how-to-assess- 5 mental-status (accessed May 11, 2020). Thus, a person such as Plaintiff who is oriented “times 6 two” is not fully oriented. The ALJ also failed to recognize the inconsistency between the 7 functional assessment set forth in the narrative opinion and the assessment in the medical source 8 statement. Whether or not a claimant is represented by counsel, the ALJ “must inform himself 9 about the facts relevant to his decision.” Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983). 10 Because the ALJ in this case failed to acknowledge and resolve the apparent inconsistency 11 between Dr. Michiel’s narrative report (Plaintiff was unable to maintain attention and 12 concentration to carry out simple job instructions) and the medical source statement (Plaintiff had 13 mild restrictions in carrying out simple instructions), she cannot be said to have fully reviewed 14 Dr. Michiel’s expert opinion. 15 E. The Selective Analysis of Other Medical Evidence in the Record 16 The ALJ began her analysis of the remaining medical evidence with a detailed summary 17 of Plaintiff’s February 2015 mental health treatment plan. AR 28-29. The hearing decision 18 provided no explanation for its omission of earlier medical treatment records, including Plaintiff’s 19 crisis placement at the California Health Care Facility in December 2014. 20 In the next paragraph, the ALJ provided a detailed summary of the one-page “SOAP note” 21 of Plaintiff’s August 2015 encounter with his EOP social worker. AR 29. The hearing decision 22 neither explains why the factual analysis skipped the medical records for the six months since the 23 February treatment plan, nor explains why or if this particular encounter note constituted a 24 sufficient basis for conclusions concerning Plaintiff’s residual functional capacity. 25 The third paragraph of the analysis addresses Plaintiff’s mental health treatment during 26 parole, focusing on segments of a continuous computer record of encounter notes prepared by 27 various parole department personnel. AR 29. The full record of encounter notes appears within 28 the record at AR 563-74, 627-65. Drawing from assorted pages within the notes, the hearing 1 decision reported that in various encounters Plaintiff denied depression; reported difficulty falling 2 asleep; felt motivated; was abstaining from methamphetamine and alcohol; twice felt anxious; 3 had panic attacks; had difficulty focusing; and, experienced difficulty in crowded places. AR 29. 4 The fifth and sixth paragraphs recount in detail the general assistance form completed by 5 Ms. Smith (AR 600-01) and reject her opinion as one reserved to the Commissioner. AR 29. . 6 Finally, the hearing decision includes a paragraph summarizing the November 10, 2016 7 Fresno County Mental Health intake assessment (AR 613-17) and subsequent treatment notes 8 (AR 603-12). At intake, Plaintiff complained of anxiety, depression, trauma, hallucinations, 9 paranoia, eating and sleeping problems, hyperactivity, difficulty concentrating, aggressiveness 10 and delusions. AR 29. The hearing decision does not indicate that Plaintiff, seeking to continue 11 to receive medication management following his discharge from parole, was recounting the 12 history of his mental health problems and frequently spoke of them in the past tense. See AR 13 613. He sought only medication management, stating that he did not presently require individual 14 therapy. AR 615. 15 The intake interview provided an “urgent medication referral,” noting significant 16 impairment and “probability of significant deterioration” without medication services. AR 617. 17 Areas of impairment included Plaintiff’s living arrangement, social support, daily activities and 18 occupational [sic]. AR 617. 19 F. Remand is Required for a Full and Fair Analysis 20 Because the ALJ failed to consider the record in this case fully and fairly, the Court will 21 reverse the Commissioner’s decision and remand this case to allow the Commissioner to resolve 22 the apparent inconsistency in Dr. Michiel’s expert medical opinion, followed by analysis of 23 Plaintiff’s residual functional capacity in compliance with applicable law and in consideration of 24 the record as a whole. 25 VIII. Reliability of Plaintiff’s Testimony 26 Plaintiff contends that the ALJ erred in rejecting as unreliable Plaintiff’s testimony of his 27 psychological impairments. The Commissioner responds that the ALJ appropriately concluded 28 /// 1 that Plaintiff’s subjective testimony of the effects of his mental health impairments was not 2 always consistent with the objective medical records. 3 An ALJ is responsible for determining credibility, resolving conflicts in medical 4 testimony and resolving ambiguities. Andrews, 53 F.3d at 1039. His or her findings of fact must 5 be supported by “clear and convincing evidence.” Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th 6 Cir. 2014). A claimant’s statements of pain or other symptoms are not conclusive evidence of a 7 physical or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 8 “An ALJ cannot be required to believe every allegation of [disability], or else disability benefits 9 would be available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. 10 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 11 To determine whether the ALJ’s findings are supported by sufficient evidence a court 12 must consider the record as a whole, weighing both the evidence that supports the ALJ’s 13 determination and the evidence against it. Magallanes, 881 F.2d at 750. “[A] federal court’s 14 review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806 F.3d 15 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized determinations like a 16 claimant’s entitlement to disability benefits, Congress places a premium upon agency expertise, 17 and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing 18 courts to substitute their discretion for that of the agency.” Id. (quoting Treichler v. Comm’r of 19 Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. Fed. Mar. Comm’n, 20 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts should generally 21 “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve 22 ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 F.3d at 23 1098). In this case, the ALJ relied on inconsistencies between the testimony and objective 24 evidence, including Plaintiff’s ability to attend his grandson’s football games and church, to 25 conclude that Plaintiff retained the ability “to function adequately and to perform many basic 26 activities associated with work.” AR 31. 27 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 28 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 1 subjective symptom evaluation is not “an examination of an individual’s character” but an 2 endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 3 16-3p at 1-2. 4 An ALJ performs a two-step analysis to determine whether a claimant’s testimony 5 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 6 (9th Cir. 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce 7 objective medical evidence of an impairment that could reasonably be expected to produce some 8 degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 9 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that Plaintiff’s “medically 10 determinable impairments could reasonably be expected to produce the alleged symptoms.” AR 11 31. The ALJ did not find Plaintiff to be malingering. 12 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ 13 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent 14 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 15 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by 16 symptoms to a greater or lesser extent than other individuals with the same medical impairments, 17 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In 18 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical 19 evidence; the claimant’s representations of the intensity, persistence and limiting effects of his 20 symptoms; statements and other information from medical providers and other third parties; and, 21 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 22 “The determination or decision must contain specific reasons for the weight given to the 23 individual’s symptoms, be consistent with and supported by the evidence, and be clearly 24 articulated so the individual and any subsequent reviewer can assess how the adjudicator 25 evaluated the individual’s symptoms.” S.S.R. 16-3p at *10. 26 Because a “claimant’s subjective statements may tell of greater limitations than can 27 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her 28 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter, 1 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602). See also Bunnell v. Sullivan, 947 2 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an underlying medical 3 impairment, the ALJ may not discredit the claimant’s testimony regarding the severity of his 4 symptoms solely because they are unsupported by medical evidence). 5 The law does not require an ALJ simply to ignore inconsistencies between objective 6 medical evidence and a claimant’s testimony. “While subjective pain testimony cannot be 7 rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 8 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its 9 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 10 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly 11 considers whether the objective medical evidence supports or is consistent with a claimant’s 12 testimony. Id.; 20 C.F.R. §§ 416.929(c)(4), 416.929(c)(4) (symptoms are determined to diminish 13 residual functional capacity only to the extent that the alleged functional limitations and 14 restrictions “can reasonably be accepted as consistent with the objective medical evidence and 15 other evidence”). “[O]bjective medical evidence is a useful indicator to help make reasonable 16 conclusions about the intensity and persistence of symptoms, including the effects those 17 symptoms may have on the ability to perform work-related activities.” S.S.R. 16-3p at 6. 18 Because objective medical evidence may reveal the intensity, persistence and limiting effects of a 19 claimant’s symptoms, an ALJ must consider whether the symptoms reported by a claimant are 20 consistent with medical signs and laboratory findings of record. Id. 21 In this case, the ALJ began her analysis by considering Plaintiff’s testimony that he 22 suffered daily auditory and visual hallucinations, became anxious in crowds, was unable to shop 23 and had difficulty concentrating. AR 31. She wrote: 24 The claimant has a poor work history, and has not been employed for over twenty years, which suggest his current unemployment may not 25 be due to any disability. Although he testifies that his medication does not help, the record shows he has reported otherwise to medical 26 personnel. Furthermore, medical notations state that he was stable 27 /// 28 /// 1 2 on medication. The claimant has reported anxiety in crowds, yet he is able to attend his grandson’s football games, as well as church. 3 His allegations are inconsistent with the evidence. 4 AR 31. 5 As is generally the case in disability appeals, the record in this case includes an abundance 6 of evidence, some of it contradictory, to support either side of a credibility determination. In 7 analyzing the reliability of Plaintiff’s testimony the ALJ accurately identified Plaintiff’s long 8 period of unemployment and various evidence supporting a conclusion that Plaintiff experienced 9 improvement from his medications. She omitted evidence of instances when Plaintiff’s 10 medications were less effective. And, Plaintiff correctly points out that the record included no 11 evidence supporting the ALJ’s findings that Plaintiff attended church and his grandson’s football 12 games. The sole testimony concerning Plaintiff’s then-thirteen-year-old grandson was that the 13 child played football but that the football season was then over. AR 44-45. Plaintiff did not 14 testify that he attended games and nothing in the record considers whether middle school football 15 games draw crowds. Although the record establishes that Plaintiff identified himself as Christian, 16 he did not testify that he attended church. To the contrary, Plaintiff testified that he participated 17 in no social activity such as church, groups, friends or family. AR 44. 18 Even if the Court were to disregard the ALJ’s reliance on football games and church 19 attendance, however, the objective evidence does not suggest that Plaintiff was unable to function 20 outside of complete isolation. At VSP he was able to live in a six-person cell and attend various 21 group educational and therapy sessions suggested by EOP personnel. Treatment notes during and 22 after parole reported Plaintiff’s progress at developing strategies for dealing with the anxiety 23 generated by life with three grandchildren. However, the hearing decision does not consider this 24 evidence. 25 Had the balance of the hearing decision been unremarkable the Court might have 26 concluded that the ALJ’s errors in determining Plaintiff’s credibility were harmless. However, 27 since the multiple errors in the residual functional capacity analysis require remand in any event, 28 the Court directs the analysis on remand to analyze more carefully the reliability of Plaintiff’s 1 testimony accurately focusing on the areas of consistency and inconsistency between Plaintiff’s 2 testimony and the record as a whole. 3 IX. Vocational Expert Testimony 4 Finally, Plaintiff contends that (1) because the ALJ’s hypothetical questions did not accurately reflect Plaintiff’s residual functional capacity, the ALJ erred in relying on the 5 vocational expert’s testimony to conclude that jobs that Plaintiff could perform were available in 6 the national economy; and, (2) in the alternative, the ALJ erred in failing to identify a conflict 7 between the DOT and the VE’s testimony. Because this decision reverses the residual functional 8 capacity determination and remands this case for further proceedings, the Commissioner will be 9 required to consider anew whether Plaintiff is disabled in light of the residual functional capacity 10 determined on remand. Accordingly, the Court declines to address this issue 11 X. Conclusion and Order 12 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 13 disabled is not supported by substantial evidence in the record as a whole and is not based on 14 proper legal standards. Accordingly, this Court REMANDS this case to the Commissioner 15 pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment 16 in favor of Plaintiff Shawn Paul Smith, and against Defendant Andrew Saul, Commissioner of 17 Social Security. 18
19 IT IS SO ORDERED.
20 Dated: May 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21
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