Opinion
23CV918-RBM(BLM)
07-15-2024
CHARLES R. BOECHE, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION FOR
ORDER ON JOINT MOTION FOR
JUDICIAL REVIEW OF FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
[ECF No. 22]
BARBARA L. MAJOR, UNITED STATES MAGISTRATE JUDGE
Plaintiff Charles R. Boeche brought this action for judicial review of the Social Security Commissioner's denial of his claim for “Social Security Disability Insurance and Supplemental Security Income benefits for lack of disability.” ECF No. 1. Before the Court is the parties' Joint Motion for Judicial Review of the Final Decision of the Commissioner of Social Security [ECF No. 22 ('“Mot.”)].
This Report and Recommendation is submitted to United States District Judge Ruth B. Montenegro pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, the Court RECOMMENDS that Plaintiff's request that the Commissioner's final decision be vacated, and the case remanded for further administrative proceedings be GRANTED.
PROCEDURAL BACKGROUND
On March 12, 2021, Plaintiff filed a Title II application for a period of disability and disability insurance benefits alleging disability beginning September 16, 2020. See Administrative Record (“AR”) at 15. The claims were denied initially on April 15, 2021, and upon reconsideration on September 8, 2021, resulting in Plaintiff's request for an administrative hearing on October 21, 2021. Id.
On February 10, 2022, a hearing was held before Administrative Law Judge (“ALJ”) A. Benton. Id. at 15-25. Plaintiff and an impartial vocational expert (““VE”), Richard Cheney, testified at the hearing. Id. at 15. In a written decision dated April 29, 2022, ALJ Benton determined that Plaintiff had not been under a disability, as defined in the Social Security Act, since September 16, 2020. Id. at 25. Plaintiff requested review by the Appeals Council. Id. at 1-3. In a letter dated March 30, 2023, the Appeals Council denied review of the ALJ's ruling, and the ALJ's decision therefore became the final decision of the Commissioner. Id.
On May 18, 2023, Plaintiff filed the instant action seeking judicial review by the federal district court. See ECF No. 1. On December 12, 2023, the parties filed the instant Joint Motion for Judicial Review of Final Decision of the Commissioner of Social Security. Mot.
ALJ's DECISION
On April 29, 2022, the ALJ issued a written decision in which the ALJ determined that Plaintiff was not disabled as defined in the Social Security Act. AR at 15-25. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the relevant time period (since September 16, 2020). Id. at 17-18. At step two, the ALJ considered all of Plaintiff's medical impairments and determined that the following impairments were “severe” as defined in the Regulations: “bipolar disorder and anxiety with panic disorder (20 CFR 404.1520(c))." Id. at 18. At step three, the ALJ found that Plaintiff's medically determinable impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). Id. At step four, the ALJ considered Plaintiff's severe impairments and determined that his residual functional capacity (“RFC”) permitted him
to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to understanding, remembering, and carrying out simple instructions. The claimant can only have occasional interaction with supervisors, coworkers, and the public. The claimant can only make simple, work-related decisions and only tolerate occasional change in work location. The claimant is unable to work at a strict production rate like the type of rate required to work on an assembly line.Id. at 20. The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; [] the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record. Id. The ALJ also found that Plaintiff was unable to perform any past relevant work, but that Plaintiff was not disabled and that considering Plaintiff's “age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Id. at 23.
STANDARD OF REVIEW
Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Id.; see also Miner v. Berryhill, 722 Fed.Appx. 632, 633 (9th Cir. 2018) (We review the district court's decision de novo, disturbing the denial of benefits only if the decision “contains legal error or is not supported by substantial evidence.”) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
Substantial evidence is “more than a mere scintilla but may be less than a preponderance.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) (quotation marks and citations omitted), superseded by regulation on other grounds. It is relevant evidence that a reasonable person might accept as adequate to support a conclusion after considering the entire record. Id. See also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “In determining whether the Commissioner's findings are supported by substantial evidence, [the court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ's] conclusion.” Laursen v. Barnhart, 127 Fed.Appx. 311, 312 (9th Cir. 2005) (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). Where the evidence can reasonably be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. See Ahearn, 988 F.3d at 1115-116 (citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. Id. at 1115 C“[t]he ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities,” and “we reverse only if the ALJ's decision was not supported by substantial evidence in the record as a whole”) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Miner, 722 Fed.Appx. at 633. Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court also may remand the matter to the Social Security Administration for further proceedings. Id.
DISCUSSION
Plaintiff argues that the “ALJ's mental RFC determination is not supported by substantial evidence nor free from legal error where the ALJ improperly relied upon the opinions of the nonexamining, non-treating State agency consultants and improperly rejected the opinions of psychiatric treating sources, Drs. Kelsoe and Bardwell.” Mot. at 9. Plaintiff further argues that the ALJ failed to properly evaluate the state agency consultants in accordance with the regulations as she does not discuss the evidence the agency consultants used to support their opinions, nor did she explain how the evidence of record informed her findings that the state agency consultants' findings were persuasive. Id. at 10-11.
Defendant contends that the ALJ's evaluation of the medical evidence is supported by substantial evidence. Id. at 18.
Plaintiff replies that the Court cannot rely on the post hoc rationalizations offered by Defendant of what the ALJ may have been thinking. Id. at 24-25.
A. Legal Standard
Changes to Social Security Administration regulations have shifted the hierarchical value of medical opinions in evaluating presumptive weight for a claimant. See Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Prior to changes in 2017, the opinion of a treating doctor generally was given more weight than opinions of doctors who do not treat the claimant. See Turner v. Comm'r. of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). Following the Administration's changes on March 27, 2017, the factors for evaluating the persuasiveness of medical opinions and prior administrative medical findings include supportability, consistency, relationship with the claimant (including length of the treatment, frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of an examination), specialization, and “other factors that tend to support or contradict a medical opinion or prior administrative medical finding” (including, but not limited to, “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements”). 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The most important factors the agency considers when weighing medical opinions are “supportability and consistency.” Woods, 32 F.4th at 791-792. “Supportability means the extent to which a medical source supports the medical opinion by explaining the relevant [] objective medical evidence. Consistency means the extent to which a medical opinion is consistent [] with the evidence from other medical sources and nonmedical sources in the claim.” Id. (internal citations and quotations omitted). Under the new administration regulations, “an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence,” meaning that the ALJ must articulate how persuasive they find all provided medical opinions and explain the supportability and consistency factors of those opinions. Id. at 792; see also P.H. v. Saul, 2021 WL 965330, at *3 (N.D. Cal. Mar. 15, 2021) ("Although the regulations eliminate the ‘physician hierarchy,' deference to specific medical opinions, and assigning 'weight' to a medical opinion, the ALJ must still ‘articulate how [he/she] considered the medical opinions' and 'how persuasive [he/she] find[s] all of the medical opinions.”) (citation omitted); and Carolyn M.D. v. Kijakazi, 2021 WL 6135322, at *5 (C.D. Cal. Dec. 28, 2021) ('“As always, the ALJ's reasoning must be free of legal error and supported by substantial evidence.”).
B. Dr. Kelsoe
Dr. Kelsoe, a psychiatrist, has been treating Plaintiff since February of 2012. AR at 345. On October 9, 2020, Dr. Kelsoe met with Plaintiff via video visit and noted that although Plaintiff was still suffering, Plaintiff's use of gabapentin reduced the frequency of Plaintiff's panic attacks to every other day. Id. at 274, 327. Plaintiff also reported sleeping better and no manic symptoms, but still being quick to anger and irritable. Id. Dr. Kelsoe noted that Plaintiff had (1) a normal rate of speech, (2) an anxious mood and affect, (3) linear associations, (4) coherent and logical thought process, (5) good insight and judgment, (6) grossly intact recent and remote memory, and (7) above average language and fund of knowledge and intellect. Id. at 275, 329. Plaintiff did not have any suicidal or homicidal ideations, abnormal perceptions, gross abnormalities of attention or concentration, and was oriented. Id. Dr. Kelsoe noted that Plaintiff's Bipolar status was stable and his panic disorder status was improving. Id.
At Plaintiff's March 12, 2021 video appointment, Dr. Kelsoe noted that Plaintiff's chief complaint was paralyzing anxiety. AR at 271, 323. Plaintiff reported that his medicine compliance was good and that any side effects from his medicines were well tolerated. Id. at 271, 324. Dr. Kelsoe noted that Plaintiff appeared casual and calm with no abnormal or involuntary movements. Id. at 272. Plaintiff had (1) clear and understandable speech, (2) an anxious mood, (3) euthymic affect, (4) linear associations, (5) coherent and logical thought process, (6) good insight and judgment, (7) grossly intact recent and remote memory, (8) above average language, and (9) above average fund of knowledge and intellect. Id. at 272, 324. Plaintiff did not have any suicidal or homicidal ideations, abnormal perceptions, gross abnormalities of attention or concentration, and was oriented. Id. Dr. Kelsoe concluded that Plaintiff's anxiety was secondary to his mania which was likely precipitated by the stress of his job. Id. at 272, 325. Dr. Kelsoe noted that Plaintiff's Bipolar and anxiety statuses were improving. Id.
After Plaintiff's April 16, 2021 video visit, Dr. Kelsoe wrote that Plaintiff was suffering two to three panic attacks a week, did not want to leave home, and was “singularly focused on his finances.” Id. at 318. Dr. Kelsoe noted that Plaintiff appeared frazzled and fidgety with no abnormal or involuntary movements. Id. at 319. Plaintiff had (1) clear and understandable speech, (2) an anxious mood and affect (3) linear associations, (4) a coherent and logical thought process, (5) good insight and judgment, (6) grossly intact recent and remote memory, and (7) average language, and fund of knowledge and intellect. Id. at 319-320. Plaintiff did not have any suicidal or homicidal ideations, abnormal perceptions, gross abnormalities of attention or concentration, and was oriented. Id. at 319. Dr. Kelsoe concluded that Plaintiff was in a mixed state of severe anxiety and panic triggered by stress at work. Id. at 320. Dr. Kelsoe noted that Plaintiff's Bipolar and Panic Disorder statuses were unchanged, and that his R/O Agoraphobia status was stable. Id.
On May 14, 2021, Dr. Kelsoe wrote that Plaintiff reported that he was doing a lot better and was less anxious and depressed. AR at 313. Dr. Kelsoe again noted that Plaintiff's mood was “almost entirely related to his financial situation” and that since learning that he would receive housing assistance, his mood has improved. Id. Dr. Kelsoe noted that Plaintiff appeared casual and calm with no abnormal or involuntary movements. Id. at 315. Plaintiff had (1) clear and understandable speech, (2) a depressed mood and affect (3) linear associations, (4) a coherent and logical thought process, (5) good insight and judgment, (6) grossly intact recent and remote memory, and (7) above average language, and fund of knowledge and intellect. Id. Plaintiff did not have any suicidal or homicidal ideations, abnormal perceptions, gross abnormalities of attention or concentration, and was oriented. Id. Dr. Kelsoe concluded that Plaintiff's anxious/manic symptoms were resolving and that he was depressed about his circumstances. Id. Dr. Kelsoe noted that Plaintiff's Bipolar and GAD statuses were improving. Id.
On October 25, 2021, Dr. Kelsoe's impression was that Plaintiff had Bipolar I and cocaine dependence that triggered his first mania although his mania is in excess of cocaine alone and has occurred without cocaine. Id. at 346. Dr. Kelsoe noted that Plaintiff had done well for several years, but recently began developing crippling panic attacks several times a week that left him completely incapacitated and unable to work as of the date of the report. Id. at 347. Dr. Kelsoe concluded that Plaintiff suffered "from bipolar disorder with psychotic features complicated by severe anxiety and [disabling] panic attacks" that end in despair. Id. Dr. Kelsoe noted that Plaintiff's list of failed medications show that Plaintiff's illness is "refractory making it difficult to predict the length of the disability and when he might return to work." Id. Dr. Kelso completed a Mental Impairment Questionnaire finding that Plaintiff had a marked inability to (1) remember, understand and carry out short and simple instructions, and complete a normal workweek performing such tasks, (2) remember, understand and carry out more complex and detailed instructions, and complete a normal work-week performing such tasks, (3) maintain attention and focus on work tasks, (4) maintain regular attendance and punctuality, (5) sustain work activity without the need for additional supervision, monitoring or guidance, (6) perform work tasks without interruption from psychological symptoms, (7) appropriately interact with and accept instruction and criticism from supervisors, and (8) deal with normal work stressors and typical changes in work settings or procedures. Id. at 349-350. Dr. Kelsoe found that Plaintiff was severely limited in his ability to appropriately interact with co-workers and the general public and exercise appropriate judgment in matters of safety and work procedures. Id.
“Marked; condition substantially interfering with the ability to function independently, appropriately, effectively and on a sustained basis.” AR at 349.
“Seriously limited; functioning may be inconsistent or at times less than satisfactory; may be distracted from the activity more than about 10% of the time.” AR at 348.
C. Dr. Bardwell
Dr. Wayne A. Bardwell, a psychologist, treated Plaintiff from December 26, 2013 -February 17, 2022. Id. at 374. On February 25, 2022, Dr. Bardwell completed a Mental Impairment Questionnaire for Plaintiff. Id. at 376-378. Dr. Bardwell noted that Plaintiff was self-referred for psychotherapy beginning December 26, 2013 and that his treatment focused on helping Plaintiff understand his Bipolar D/O diagnosis, develop skills to cope with the illness, adhere to a medication regimen, and to gain control over substance abuse. Id. at 376. Dr. Bardwell found that Plaintiff was seriously limited in his ability to (1) remember, understand and carry out short and simple instructions, and complete a normal work-week performing such tasks, (2) remember, understand and carry out more complex and detailed instructions, and complete a normal work-week performing such tasks, (3) maintain attention and focus on work tasks, (4) maintain regular attendance and punctuality, (5) sustain work activity without the need for additional supervision, monitoring or guidance, (6) perform work tasks without interruption from psychological symptoms, (7) exercise appropriate judgment in matters of safety and work procedures, (8) appropriately interact with and accept instruction and criticism from supervisors, (9) appropriately interact with co-workers and the general public, and (10) deal with normal work stressors and typical changes in work settings or procedures. Id. at 376377. Dr. Bardwell concluded that Plaintiff "is limited in accomplishing ADLs [and] [t]o the extent he can accomplish them, this is likely because of the absence of timelines/due dates" and that Plaintiff's "distractibility and interpersonal problems greatly impair his ability to function." Id. at 378.
On March 2, 2022, Dr. Bardwell completed a Mental Impairment Questionnaire for Plaintiff. Id. at 370-375. Dr. Bardwell noted that Plaintiff's "posture, gait, mannerisms, and behaviors in session [were] typically unremarkable" but that in the past several months, "he has allowed his hair to grow and has grown a beard, both of which appear unkempt" and in the past few weeks "he impulsively shaved his head[,]" and he has not been completing some daily activities such as brushing his teeth Id. at 370, 373. Dr. Bardwell also provided quotes from Plaintiff demonstrating the way in which Plaintiff described complaints, for example, "I skate[board] until it hurts[,]" “I have an up, extreme persona that is every intense at work[,]" and "I understand animals and they understand me on an etherial [sic] level." Id. at 370. Dr. Bardwell noted that Plaintiff was anxious and paranoid often vacillating between depressive and expansive with fluctuating insight. Id. at 371. While Plaintiff is typically oriented as to person, place, time, and situation, he has memory difficulties, loses track during sessions, is often circumstantial and tangential in answering questions or elaborating on a point. Id. Plaintiff's mood swings have also prevented him from maintaining "a reliable level of job task completion." Id. at 373. Dr. Bardwell concluded that Plaintiff's "prognosis is poor[,]" medication only sometimes dampens his manic symptoms, he is easily triggered to anger which is highly disruptive in a work setting, and he is "at significant risk for severe binges with alcohol" which could have serious effects. Id. at 374.
D. Dr. R. Paxton
On April 8, 2021, after reviewing Plaintiff's records, State Agency Consultant, Dr. R. Paxton concluded that Plaintiff suffers from Depressive, Bipolar and Related Disorders. AR at 58. Dr. Paxton concluded that Plaintiff's ability to understand, remember, or apply information, interact with others, and concentrate, persist, or maintain pace, was moderate. Id. Plaintiff was not limited in his ability to adapt or manage himself. Id. Dr. Paxton did not find the presence of C criteria. Id. Dr. Paxton found that Plaintiff's claims were partially credible as the evidence in the file established the existence of his conditions but not at the severity level alleged. Id. at 60. Dr. Paxton's Mental Residual Functional Capacity Assessment stated that Plaintiff was not significantly limited in his ability to (1) remember locations and work-like procedures, (2) understand and remember very short and simple instructions, (3) carry out very short and simple instructions, (4) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, (5) sustain an ordinary routine without special supervision, (6) work in coordination with or in proximity to others without being distracted by them, (7) make simple work-related decisions, (8) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, (9) accept instructions and respond appropriately to criticism from supervisors, (10), ask simple questions or request assistance, (11) get along with coworkers or peers without distracting them or exhibiting behavioral extremes, (12) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. Id. at 60-63. The Assessment also stated that Plaintiff was moderately limited in his ability to (1) understand and remember detailed instructions, (2) carry out detailed instructions, (3) maintain attention and concentration for extended periods, and (4) interact appropriately with the general public. Id.
Paragraph C criteria of Listings 12.03 and 12.04 require a claimant to have a “serious and persistent mental disorder”, meaning a “medically documented history of the existence of [a] [mental] disorder over a period of at least two years” and evidence of both (1) “medical treatment, mental health therapy, psychosocial support(s) or a highly structured setting(s) that is ongoing and diminishes the symptoms and signs for [the claimant's] mental disorder,” and (2) marginal adjustment which is “minimal capacity to adapt to changes in [the claimant's] environment or to demands that are not already part of [the claimant's] daily life.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(A)(2)(c), 12.03(C), 12.04(C).
The ALJ concluded that Dr. Paxton's findings were persuasive and supported by “discussing the claimant's allegations, diagnoses, and examination findings.” Id. at 22. The ALJ found that Dr. Paxton's findings were consistent with the medical record evidence which showed that Plaintiff had an anxious mood and affect and abnormalities such as a frazzled appearance and fidgety behavior but “normal findings in behavior, speech, thought content, thought process, memory, concentration/attention, insight, and judgment.” Id.
E. Dr. G. Rivera-Miya
On September 7, 2021, after reviewing Plaintiff's records, state agency consultant, Dr. G. Rivera-Miya concluded that Plaintiff suffers from Depressive, Bipolar and Related Disorders. AR at 73. Dr. Rivera-Miya concluded that Plaintiff's ability to understand, remember, or apply information, interact with others, and concentrate, persist, or maintain pace, was moderate. Id. Plaintiff was mildly limited in his ability to adapt or manage himself. Id. Dr. Rivera-Miya also did not find the presence of C criteria. Id. at 74. Dr. Rivera-Miya completed a Mental Residual Functional Capacity Assessment with the same findings as Dr. Paxton. Id. at 76-79.
The ALJ concluded that Rivera-Miya's findings were persuasive and supported by “discussing the claimant's allegations, diagnoses, and examination findings.” Id. at 22. The ALJ found that Dr. Rivera-Miya's findings were consistent with the medical record evidence which showed that Plaintiff had an anxious mood and affect and abnormalities such as a frazzled appearance and fidgety behavior but “normal findings in behavior, speech, thought content, thought process, memory, concentration/attention, insight, and judgment.” Id.
F. ALJ's Analysis
Plaintiff argues that the ALJ erred in her analysis and rejection of the opinions of Drs. Kelsoe and Bardwell. Mot. at 11-18. Plaintiff asserts that the ALJ provided a “cursory and conclusory analysis” of Dr. Kelsoe's opinion and failed to adequately address the supportability and consistency of the opinions of both Dr. Kelsoe and Dr. Bardwell. Id. at 13-18. Plaintiff argues that the ALJ also improperly discounted Dr. Bardwell's opinion based upon the lack of treatment notes and by speculating about what the notes might have indicated. Id. at 13-14. Finally, Plaintiff argues that the ALJ failed to adequately address the supportability and consistency of the opinions of the agency consultants. Id. at 9-11. Defendant responds that the medical opinions of Drs. Kelsoe and Bardwell were poorly supported and inconsistent with the mental examinations performed by Dr. Kelsoe and, in contrast, the opinions of the agency consultants were well-supported and consistent with Dr. Kelsoe's examinations. Id. at 19-24. Defendant asserts that the ALJ properly “used the absence [of Dr. Bardwell's records] to underline the inconsistency between Dr. Bardwell's opinion and Dr. Kelsoe's unremarkable findings.” Id. at 23. Plaintiff replies that Defendant improperly references records and examinations that the ALJ herself does not mention in an attempt to cure the ALJ's deficiencies. Id. at 25.
1. Drs. Kelsoe and Bardwell
In determining that the treating doctor's opinions were not persuasive, the ALJ provided the following analysis:
Dr. Kelsoe and Dr. Bardwell, provided medical source statements (Exhibits 4F and 7F). Both doctors opined that [Plaintiff] had marked to severe limitations in areas such as understanding and carrying out simple instructions, completing a normal workweek, maintaining attention and focus, maintaining regular attendance, interacting with others, and exercising judgment in safety and work procedure (Id.). Both doctors discussed the [Plaintiff's] treatment history, diagnoses, symptoms, and examination abnormalities (Id.). However, their opinions are not consistent with the evidence as a whole.
First, as it relates to Dr. Bardwell, we do not have the treatment notes from him. Rather, we only have the mental impairment questionnaire and while he discussed
some of the abnormalities [Plaintiff] displayed during his appointments, he also relied heavily on [Plaintiff's] subjective statements (Exhibit 7F). Moreover, his answers to the questionnaire do not clearly discuss the normal mental status findings that [Plaintiff] was likely to have had based on the other examinations in the file that showed [Plaintiff] had normal findings in insight, judgment, speech, thought content, thought process, memory, and concentration/attention (Exhibits 1F, 2F, and 3F). As to Dr. Kelsoe, his opinion is not consistent with his own examinations that showed [Plaintiff] had calm behavior, linear associations, understandable and clear speech, coherent and logical thought process, good insight and judgment, grossly intact memory, average language, and no abnormalities in concentration and attention (Exhibits 1F, 2F, and 3F). Thus, the opinions from Dr. Kelsoe and Dr. Bardwell are not persuasive.Id. at 22.
Initially, the Court notes that two of the relevant factors-relationship with claimant and specialization-favor these opinions as Dr. Kelsoe is a psychiatrist and Dr. Bardwell is a psychologist and both have treated Plaintiff on a regular basis for an extended period of time. See Veronica L. v. Commissioner of Social Security Administration, 2024 WL 399049, at n.2 (D. Or., Feb. 2, 2024) ('“[a]s the Ninth Circuit recently explained, [u]nder the revised regulations ... a medical source's relationship with the claimant is still relevant when assessing the persuasiveness of the source's opinion.”) (quoting Woods, 32 F.4th at 792); see also Kolish v. O'Malley, 2024 WL 2878241, at n.16 (D. Hawaii, June 7, 2024) C“[i]n addition to consistency and supportability, 20 C.F.R § 404.1520c(c)(3) requires the ALJ to consider the 'relationship with the claimant' factor, which in turn includes the '[l]ength of the treatment relationship,' '[frequency of examinations,' '[p]urpose of the treatment relationship' and '[e]xtent of the treatment relationship.' Although the ALJ did not explicitly discuss this factor-and is not required to, per 20 C.F.R § 404.1520c(b)(2)-the record shows that the state medical consultants did not examine Plaintiff and based their findings only on the materials included in Plaintiff's disability claim. In contrast, Dr. Puana and Dr. Lee each examined Plaintiff on a number of occasions.”). The ALJ failed to address or consider these factors. AR at 22-23.
The Court will address the remaining factors-supportability and consistency-for each doctor separately.
a. Dr. Kelsoe
The only reason provided by the ALJ for finding Dr. Kelsoe's opinion unpersuasive was that it was “not consistent with the evidence as a whole.” AR at 22. While an ALJ is permitted to reject or find medical opinions unpersuasive when they are contradicted by medical evidence in the record, the ALJ must consider all of the evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) ("In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, that are reasonably attributable to a medically determinable impairment.” (internal quotation marks omitted)); see also 20 C.F.R. § 416.945(a)(3) ("We will assess your [RFC] based on all of the relevant medical and other evidence.”). Here, the ALJ correctly noted that many of Dr. Kelsoe's examinations indicated that Plaintiff was improving and that he had positive characteristics and behaviors. AR at 23 (citing exhibits 1F, 2F, and 3F). However, the ALJ's analysis was conclusory and did not address the specific concerns identified by Dr. Kelsoe as reasons for finding Plaintiff was more limited in his capabilities. Id. For example, Dr. Kelsoe explains that despite the nature of the mental status exams and previous stabilization and success, in 2021, Plaintiff began experiencing "crippling panic attacks” that left him completely incapacitated and unable to work. Id. at 347. Dr. Kelsoe elaborated that even though Plaintiff is capable of performing activities of daily living, his panic attacks mostly occur at work and leave him incapacitated. Id. at 350. Although Plaintiff "[h]as been very successful and high functioning in the past, [he] is now rendered unable to function because of his symptoms.” Id. Dr. Kelsoe noted Plaintiff's struggle with panic attacks throughout his treatment history alongside mostly "normal” mental status examinations. Id. at 271-272, 323-324 (March 12, 2021 appointment noting panic attacks 1-2 times per week and that Plaintiff reported quitting his job at a November 9, 2020 appointment due to frequent panic attacks), 274 ("Patient was last seen 9-26-20 at which time he was suffering from daily panic attacks”), 318-319 (April 16, 2021, "He continues to suffer 2-3 panic attacks per week”), 347 (October 25, 2021 "Panic attacks at work rendered him unable to function or complete his tasks. He would be paralyzed and then unable to focus for hours later. As these occurred 2-3 times per week at work, he was incapacitated and unable to work. This remains the case now”). The ALJ did not address these findings during her consistency analysis and did not explain how the “normal” mental status examinations that were observed and noted by Dr. Kelsoe are inconsistent with sudden onset crippling panic attacks or how Plaintiff's transition from stable to suffering severe panic attacks is inconsistent with some normal observations during his mental status exams. Moreover, the ALJ did not address the fact that along with the normal findings regarding Plaintiff's insight, judgment, thought process, memory, concentration, and attention, Dr. Kelsoe consistently noted Plaintiff's anxious or depressed mood and affect [id. at 272, 275, 315, 319, 324, 329, 347]. Similarly, Dr. Kelsoe noted during the October 2021 examination that there was a long list of psychiatric medications that had failed to help Plaintiff and made his illnesses “refractory” and therefore “difficult to predict the length of the disability and when he might return to work.” Id. at 347. The ALJ failed to address this issue during her consistency analysis. Id. at 23. See James T. v. Kijakazi, 2023 WL 6207759, at *5 (E.D. Wash., Sept. 1, 2023) ("[t]he ALJ must consider all the relevant evidence in the record, however, and may not point to only those portions of the records that bolster her findings”) (citing Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely on some entries in plaintiff's records while ignoring others)). Because the ALJ provided a conclusory analysis regarding the consistency of Dr. Kelsoe's opinions and failed to address the specific facts relied upon by Dr. Kelsoe, a psychiatrist who had treated Plaintiff for many years, in finding that Plaintiff was more limited in his capabilities, the Court finds that the ALJ erred in her analysis and that there is not substantial evidence supporting her conclusion.
As noted above, the ALJ only relied on a lack of consistency in discounting Dr. Kelsoe's opinion and did not address supportability. AR at 22-23. As explained in detail above, Dr. Kelsoe identified the medical and factual evidence supporting his opinions and explained why he found Plaintiff was more limited in his abilities despite many normal findings. The ALJ failed to address the specific information and reasoning and resorted to a conclusory analysis of consistency and no analysis of supportability. This failure constitutes legal error, especially in light of Dr. Kelsoe's lengthy treatment relationship and evidence of supportability. See Wade v. Kijakazi, 2023 WL 6445999, at *5 (E.D. Cal., Oct. 3, 2023) ('“[t]he ALJ's failure to articulate how he considered the key factors of supportability and consistency with respect to Dr. Lee's opinion was error.”) (citing Sam-Chankhiao, 2022 WL 4226170, at **3-4 (granting summary judgment for plaintiff where "the ALJ's vague and conclusory discussion of [medical] opinion fails to discuss the necessary factors of supportability and consistency”)); Hiten v. Kijakazi, 2023 WL 5806452, at *6 (E.D. Cal., Sept. 7, 2023) ("[b]ecause the ALJ did not address, explain, or otherwise articulate how persuasive he found the opinion or how he considered the factor of supportability, the Court finds that he erred); Kimberli M. S. v. Kijakazi, 2023 WL 2346330, at *7 (S.D. Cal. Mar. 3, 2023) ("[i]n addition to consistency, the ALJ must consider and articulate supportability in determining the persuasiveness of medical opinions.”); Anthony M. W. v. Comm'r of Soc. Sec., 2023 WL 2352238, at *5 (N.D. Cal. Mar. 3, 2023) ('“the regulations require that the factors of supportability and consistency be addressed explicitly”); Wood, 32 F.4th at 793 n.4 ("ALJs should endeavor to use these two terms of art-'consistent' and 'supported'-with precision.”); Katherine D. v. Comm'r, Soc. Sec. Administration, 2024 WL 244625, at *6 (D. Or., Jan. 23, 2024) ("[Regarding 'supportability,' the ALJ erred by failing to discuss the strength of the evidence underlying Dr. Hallenburg's conclusions.”).
b. Dr. Bardwell
The ALJ rejected the opinions of treating psychologist Wayne Bardwell because (1) they were inconsistent "with the evidence as a whole[,]” (2) "we do not have treatment notes from him[,]” and (3) Dr. Bardwell supported his opinion by "rel[ying] heavily on [Plaintiff's] subjective statements.” AR at 22-23. The ALJ's reasoning for finding Dr. Bardwell's opinion inconsistent with the record fails for the same reasons her findings regarding the consistency of Dr. Kelsoe's opinions fail. With respect to Dr. Bardwell, the ALJ again failed to discuss any contradictory evidence and instead relied only on the normal status reports and minor abnormalities. This conclusory analysis and selective consideration of the records by the ALJ is an error. See James T., 2023 WL 6207759, at *5 (citing Holohan, 246 F.3d at 1207-08).
While the ALJ again fails to explicitly state that she conducted the required supportability analysis, the factors identified by the ALJ-lack of treatment records and over-reliance on Plaintiff's statements-provide potentially valid reasons for finding that Dr. Bardwell's opinions were not adequately supported. “An ALJ is not required to take medical opinions at face value, but may take into account the quality of the explanation when determining how much weight to give a medical opinion.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). In cases where a physician's opinion is limited to check-box questionnaires and not supported by treatment notes, an ALJ can properly reject that opinion. James T. v. Kijakazi, 2022 WL 2952469, at *8 (S.D. Cal., July 26, 2022) (citing Kramer v. Kijakazi, 2022 WL 873630, at *6 (S.D. Cal. Mar. 24, 2022) ("An ALJ 'may permissibly reject check-off reports that do not contain any explanation of the bases of their conclusions.”) (quoting Ford, 950 F.3d at 1155); but see Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (even though treating physician's assessments were of the "check-box” form and contained almost no detail or explanation, the record of his own extensive treating notes supported physician's opinions); Esparza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. Nov. 25, 2015); Flowers v. Colvin, 2016 WL 4120048, at *4 (W.D. Wash. Aug. 3, 2016) ("the ALJ erred in rejecting [medical] opinions reflected on checked boxes, which were supported by his examination notes and clinical findings”)). Here, apart from his Mental Impairment Questionnaire, Dr. Bardwell provided no treatment records, including a check-box questionnaire, no treating notes, and no clinical findings. AR at 23, 262, (letter from Plaintiff's counsel to Judge Benton stating that "the claimant has been seeing Dr. Bardwell for psychological counseling; in lieu of releasing clinic records, he will be providing a narrative report and a medical source statement”), 370-375. Accordingly, the ALJ's finding that Dr. Bardwell's opinion was unsupported based on the lack of treatment records and notes is appropriate.
The final reason provided by the ALJ for finding Dr. Bardwell's opinion unpersuasive was that he relied heavily on Plaintiff's subjective statements. Id. at 20. "A physician's opinion of disability premised to a large extent upon the claimant's own accounts of his symptoms and limitations may be disregarded where those complaints have been properly discounted.” Becher v. Comm'r of Soc. Sec. Admin., (D. Ariz., Mar. 21, 2023) 2023 WL 2582693, at *10 (quoting Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017)); see also Rosalio O. v. Kijakaji, 2023 WL 5180325, at *6 (C.D. Cal., Aug. 11, 2023) ("[a] physician's opinion of disability premised to a
large extent upon the claimant's own accounts of his symptoms and limitations may be disregarded where those complaints have been properly discounted by the ALJ”) (quoting Buck, 869 F.3d at 1049 (quoting Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). Here, Plaintiff did not challenge the ALJ's finding in this regard and neither party addressed this issue. As a result, while this may be a valid reason for the ALJ's determination that Dr. Bardwell's opinions were unsupported, there is insufficient briefing to reach a final decision.
For the reasons set forth above, the Court finds that the ALJ's decision that Drs. Kelsoe and Bardwell's opinions are unpersuasive because they are inconsistent with Dr. Kelsoe's treatment notes is not supported by substantial evidence. See Isaiah J. B. v. Kijakazi, 2023 WL 5208812, at *10 (C.D. Cal., Aug. 11, 2023) (finding the ALJ's reasoning for finding a doctor's opinion unpersuasive to be unsupported by substantial evidence where the ALJ based the decision on normal mental status exam findings by the doctor despite the doctor repeatedly noting that plaintiff was not progressing with treatment and records consistently showed that plaintiff was irritable with euthymic/dysthymic mood and poor attention span and had trouble getting along with others). The Court also finds that the ALJ erred by failing to conduct the required supportability analysis for Dr. Kelsoe.
Citing Emily S. v. Kijakazi, 2023 WL 3805257, at *8 (N.D. Cal. June 1, 2023); see also Elisa P. v. Acting Comm'r of Social Security, 2021 WL 5833569, at *2 (W.D. Wash. Dec. 9, 2021) (substantial evidence did not support ALJ's finding that medical source opinion was inconsistent with his own mental status examination findings, which were “within normal limits” but for anxious mood and tearful affect; observing, “the ALJ's finding of a discrepancy appears to reflect a misunderstanding of human psychology and the mental status examination”); T.N. v. Kijakazi, 2021 WL 4553581, at *9 (N.D. Cal. Oct. 5, 2021) (ALJ's reliance on assertedly “normal findings” from mental status examinations was insufficient to conclude that provider's opinion was inconsistent with the record as a whole; provider had found, inter alia, depression, anxiety, PTSD symptoms, and irritability, and other records reflected depressed mood and flat affect - not “normal” findings); William B. v. Saul, 2020 WL 4318755, at *3 (E.D. Wash. July 27, 2020) (“Simply because Plaintiff did well on portions of the mental status exam does not negate the other abnormal findings, as well as [the doctor's] professional assessments.”); Kristine S. v. Saul, 2020 WL 3578048, at *10 (C.D. Cal. June 30, 2020) ("While a conflict between treatment notes and a provider's opinion remains a legally sound reason to discount that opinion, in this case it was improper for the ALJ to rely on ‘normal' or ‘unremarkable' mental status examination findings when the treatment notes as a whole showed persistent symptoms - fluctuating between poorly and fairly controlled - related to plaintiff's severe impairments of schizoaffective disorder-bipolar type[ ] and PTSD.”); Johnson v. Berryhill, 2018 WL 3008879, at *4 (W.D. Wash. June 15, 2018) (“Furthermore, the ALJ did not acknowledge the extent to which Dr. Wingate's mental status examination... revealed abnormal findings; the existence of other normal findings does not negate Dr. Wingate's examination.”).
2. Agency Consultants
Plaintiff argues that the ALJ incorrectly concluded that the opinions of the State Agency Consultants were persuasive because she failed to properly evaluate the opinions in accordance with the regulations. Mot. at 10. Plaintiff notes that the ALJ does not discuss the evidence used by the State Agency Consultants to support their opinions and does not explain how the evidence in the record “informed his finding that the opinions of the non-examining, non-treating state agency consultants were persuasive.” Id. at 11. Defendant contends that the ALJ properly found the limitations offered by Drs. Paxton and Rivera-Miya “to be better supported and more consistent with the little evidence in the medical record.” Id. at 18. Defendant further contends that the ALJ discussed supportability by noting that the State Agency Consultants “considered Plaintiff's allegations, diagnoses, and examination findings” and that even if the ALJ failed to discuss supportability, the ALJ's analysis can still be upheld since it addressed consistency. Id. at 21. Defendant does not provide any legal authority for this argument and, as set forth below, the ALJ's consistency analysis is not supported by substantial evidence because it fails to consider all of the relevant evidence in the record.
In determining that the State Agency Consultants' opinions were persuasive, the ALJ provided the following analysis:
The prior administrative findings from the State agency psychological consultants, R. Paxton, M.D., and G. Rivera-Miya, M.D., are persuasive (Exhibits 1A and 3A). The consultants supported their findings by discussing the claimant's allegations, diagnoses, and examination findings (Id.}. Their findings are consistent with the
evidence of record that showed the claimant had abnormal findings such as anxious mood and affect and occasional abnormalities such as frazzled appearance and fidgety behavior but normal findings in behavior, speech, thought content, thought process, memory, concentration/attention, insight, and judgment (Exhibits 1F, 2F, 3F, and 4F).AR at 22.
"While the ALJ is entitled to rely upon the state agency consultants' superior understanding of the rules and regulations governing Social Security disability adjudications under the revised regulations, he still must explain how [he] considered the supportability and consistency factors.” Elizabeth B. v. Kijakazi, 2022 WL 4543686, at *4 (N.D. Cal., Sept. 28, 2022) (internal citations omitted). Here, the ALJ did not properly consider either the consistency or the supportability of the State Agency Consultants' opinions. The ALJ states that "[t]he consultants supported their findings by discussing the claimant's allegations, diagnoses, and examination findings[,]” but this conclusory statement does not provide any analysis and does not provide the Court with sufficient information to meaningfully review the ALJ's finding and ascertain whether substantial evidence supports the conclusion. In analyzing the consistency of the State Agency Consultants' opinions, the ALJ repeats the mistake she made with Drs. Kelsoe and Bardwell and fails to consider the entirety of the medical records. Instead, the ALJ cherry picks portions of records referencing normal mental status examinations while ignoring Dr. Kelsoe's numerous records tracking Plaintiff's increasing panic attacks and the impact of those attacks on his ability to work and completely fails to address supportability. AR at 2223. Accordingly, the ALJ's findings are not supported by substantial evidence. See James T., 2023 WL 6207759, at *5 ("[t]he ALJ must consider all the relevant evidence in the record, however, and may not point to only those portions of the records that bolster her findings”) (citing Holohan, 246 F.3d at 1207-08 (holding that an ALJ cannot selectively rely on some entries in plaintiff's records while ignoring others)).
The ALJ provides a cite to exhibits that include the records discussing Plaintiff's panic attacks but does not mention the panic attacks and related job difficulties. AR at 22-23. Instead, the ALJ highlights a few lesser abnormal results such as frazzled appearance and fidgety behavior and finds those results to be consistent with the findings of the State Agency Consultants without providing a discussion of Dr. Kelsoe's more serious findings and how those findings are inconsistent with the State Agency Consultants' opinions which are based on the portions of records demonstrating normal mental status examinations with "occasional abnormalities.” Id.
REMAND v. REVERSAL
The decision whether to remand for further proceedings or simply to award benefits is within the discretion of the court. See Aida I. v. Saul, 2020 WL 434319, at *5 (S.D. Cal., Jan. 28, 2020) (noting that “[t]he law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court.”) (citing Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); and Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Remand for further administrative proceedings is appropriate if enhancement of the record would be useful. See Gerde v. Berryhill, 717 Fed.Appx. 674, 677 (9th Cir. 2017) ("[r]emand for further administrative proceedings to consider Dr. Alvord's opinion and the lay witness testimony is the proper remedy because enhancement of the record would be useful.”) (citing Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). On the other hand, if the record has been fully developed such that further administrative proceedings would serve no purpose “the district court should remand for an immediate award of benefits.” Benecke, 379 F.3d at 593. "More specifically, the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Id. (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). The Ninth Circuit has not definitely stated whether the "credit-as-true” rule is mandatory or discretionary. See Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009) (acknowledging that there is a split of authority in the Circuit, but declining to resolve the conflict); Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010) (finding rule is not mandatory where "there are ‘outstanding issues that must be resolved before a proper disability determination can be made'” (internal citation omitted)); Shilts v. Astrue, 400 Fed.Appx. 183, 184-85 (9th Cir. Oct. 18, 2010) (explaining that “evidence should be credited as true and an action remanded for an immediate award of benefits only if [the Benecke requirements are satisfied]” (internal citation omitted)). “Even if all three requirements are met, the Court retains flexibility to remand for further proceedings ‘when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.'” Nichols v. Saul, 2019 WL 6252934, at *10 (S.D. Cal., Nov. 22, 2019) (quoting Brown-Hunter, 806 F.3d at 495). A remand for an immediate award of benefits is appropriate only in rare circumstances. Id.
Here, based on the record before it, the Court concludes that the rare circumstances that may result in a direct award of benefits are not present. See Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (“[a]n automatic award of benefits in a disability benefits case is a rare and prophylactic exception to the well-established ordinary remand rule”); see also Howland v. Saul, 804 Fed.Appx. 467, 471 (9th Cir. 2020) (same). Instead, the Court finds further administrative proceedings would serve a meaningful purpose by enabling the ALJ to properly evaluate the medical opinions of Drs. Kelsoe and Bardwell and the State Agency Consultants. Brown-Hunter, 806 F.3d at 495-496 (remanding the case to the ALJ since “critical factual issues remain unresolved and [] further proceedings w[ould] be useful”). Therefore, this Court RECOMMENDS REVERSING the ALJ's decision and REMANDING for further proceedings to address the errors noted in this order.
CONCLUSION
For the reasons set forth above, this Court RECOMMENDS Plaintiff's request that the Commissioner's final decision be vacated, and the case remanded for further administrative proceedings be GRANTED.
IT IS HEREBY ORDERED that any written objections to this Report and Recommendation must be filed with the Court and served on all parties no later than July 23, 2024. The document should be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than July 30, 2024 . The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.