Opinion
No. 2:16-cv-2134-EFB
03-15-2018
JAMAAL ANTHONY JOHNSON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. The parties' cross-motions for summary judgment are pending. ECF Nos. 17 & 18. For the reasons discussed below, plaintiff's motion is granted and the Commissioner's motion is denied and this matter is remanded for further proceedings.
I. Background
On April 14, 2011, plaintiff filed applications for DIB and SSI, alleging that he had been disabled since January 1, 2008. Administrative Record ("AR") 280-92. Plaintiff's application was denied initially and upon reconsideration by the Commissioner. Id. at 163-68, 170-74. ///// Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and hearings in this case were held on August 21, 2012, October 16, 2014, and February 18, 2015. Id. at 30-111. Plaintiff was represented by an attorney at each of the three hearings. Id. Vocational experts testified at the August 21, 2012 and February 18, 2015 hearings. Id. at 62-68, 101-07.
The ALJ issued a decision on April 8, 2015 and found that, based on the DIB application, plaintiff was not disabled under sections 216(i) and 223(d) of the Act. Id. at 24. The ALJ also found that, based on the SSI application, plaintiff was not disabled under section 1614(a)(3)(A) of the Act. Id. He made the following specific findings: /////
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income ("SSI") is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2012.
* * *
2. The claimant has not engaged in substantial gainful activity since January 1, 2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
* * *
3. The claimant has the following severe impairments: adjustment disorder, depression[,] and anxiety (20 CFR 404.1520(c) and 416.920(c)).
* * *
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
* * *
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is able to perform detailed, complex tasks and simple repetitive tasks; maintain regular attendance; perform work activities on a consistent basis; able to perform noncompetitive work but should avoid high stress level work and avoid jobs that have quotas so it is not fast paced and fairly noncompetitive type work.
* * *
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
* * *
7. The claimant was born in 1980 and was 27 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
* * *
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1568 and 416.968).
* * *
9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
* * *
10. Considering the claimant'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 (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
* * *
Id. at 13-24.
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2008, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff's request for Appeals Council review was denied on July 29, 2016, leaving the ALJ's decision as the Commissioner's final decision. Id. at 1-3.
II. Legal Standards of Review
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). ///// /////
III. Analysis
Plaintiff argues that the ALJ erred in (1) assigning little weight to the opinions of treating psychiatrist Dr. Alan Koike; and (2) the ALJ's hypothetical question to the vocational expert did not account for Dr. Lacy's finding that plaintiff would have an impaired ability to maintain regular attendance. The court finds, for the reasons stated below, that the ALJ failed to offer specific and legitimate reasons supported by substantial evidence for giving little weight to Dr. Koike's opinions. This matter will be remanded for further proceedings. Having reached this conclusion, the court declines to take up plaintiff's second argument.
A. Relevant Legal Standards
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional may be rejected for "specific and legitimate" reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not 'substantial evidence.'" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). /////
B. Background
The ALJ, after reviewing the relevant medical records, determined that plaintiff was seen by Dr. Koike on three separate dates -July 18, 2014, September 9, 2014, and January 6, 2015 - at Adult Psychiatric Support Services ("APSS"). AR at 18. The court has independently reviewed the record and confirmed this finding. Id. at 817-20. On January 7, 2015, Dr. Koike authored a letter in which he stated that:
Plaintiff argues that the ALJ misstates the number of times plaintiff was treated at APSS Clinic. ECF No. 17 at 12. It is true that records indicate that plaintiff was seen a total of nine times at APSS between July 12, 2013 and January 6, 2015. AR at 817-828. The records also show, however, that Dr. Koike was the provider at only three of the nine visits. Id. at 817-820. Plaintiff was seen by different providers - Denali Tice, Zenaida Pablo, Helena Hart, Peter Knudsen, and Guohua Xia - at his others visits. Id. at 820-828. It appears that at least some of these other providers were medical residents (id. at 822) and, as such, it may be that they were providing care under the direct supervision of Dr. Koike or some other attending physician. No such direction is apparent from the records, however, and the court declines to infer information that is not explicitly presented.
[Plaintiff] has been under my care at the APSS Clinic. He has been a client at the clinic since 7/12/15. He was last seen on 1/6/15. He suffers from major depressive disorder, PTSD and ADHD. His treatment includes Trazodone 50mg ½-2 tabs qhs prn insomnia, Celexa to 40mg qd, and Hydroxyzine 25mg TID PRN anxiety. His symptoms include a depressed mood, anxiety, paranoia, hypervigilance, insomnia, nightmares, lack of focus, poor concentration, anger and irritability. In my opinion, he is unable to work in any capacity. He is unable to concentrate and keep focus for extended periods of time. He [is] unable to handle the stress or (sic) a normal work environment. He is unable to be around co-workers, supervisors or the general public. I believe his disability is permanent.Id. at 815 (emphasis added). The ALJ referenced the letter and noted that "[a] statement that an individual is unable to work is not a medical opinion as defined in the regulations, but rather, constitutes an opinion regarding disability, which is an issue reserved to the Commissioner . . . ." Id. at 18. The ALJ went on to find that, although Dr. Koike was an acceptable medical source pursuant to the regulations, his opinions were entitled to little weight. Id. at 18-19. In reaching this determination, the ALJ noted the discrepancy between Dr. Koike's treatment records - which showed that plaintiff was "alright," took his medications regularly, and his mental status examinations were within normal limits - and the opinion that plaintiff was disabled and unable to work. Id. at 18. The ALJ also determined that Dr. Koike's opinions on the "nature and severity of [plaintiff's impairment] were based on plaintiff's subjective complaints rather than on objective findings." Id. at 18-19. Finally, the ALJ characterized Dr. Koike's examinations of plaintiff as "limited." Id. at 18.
This reference to plaintiff's first contact with the clinic as July 12, 2015 is an obvious typographical error given that the letter is dated January 7, 2015. The provided records date plaintiff's first visit to APSS at July 5, 2013. AR at 827. The write up of that assessment was not submitted until July 12, 2013, however. Id. It appears that this was the date Dr. Koike was attempting to reference.
By contrast, the ALJ gave great weight to the opinions of consultative psychologist D. Lacy. Id. at 17-18. Dr. Lacy conducted a psychological evaluation of plaintiff on December 2, 2011. Id. at 624. Dr. Lacy observed that plaintiff had "psychomotor agitation and blunted affect." Id. at 627. She also noted (and the ALJ emphasized in his decision) plaintiff's self-reported symptoms that his depression increased after he learned that he had cancer, and his mental health symptoms were worsening and included feelings of hopelessness and irritability with people. Id. at 625. Dr. Lacy ultimately concluded that plaintiff: (1) could perform detailed and complex tasks; (2) could perform simple and repetitive tasks; (3) had a mildly impaired ability to perform work activities on a consistent basis; (4) could perform work activities without special or additional supervision; (5) had a moderately impaired ability to accept instructions from supervisors, relate/interact with coworkers and the public, and deal with the usual stresses encountered in competitive work; and (6) had a mildly impaired ability to maintain regular attendance. Id. at 630. The ALJ referenced these findings in his decision and stated that he was giving Dr. Lacy's opinion great weight because: (1) it was based on her direct examination, findings, and observations; and (2) supported the ALJ's RFC finding. Id. at 17-18.
Dr. Lacy's report indicates that the feelings of hopelessness stemmed, at least in part, from being weaned off of the medications Strattera and Zoloft before he left the prison system. AR at 625.
That finding, also reproduced supra, was:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is able to perform detailed, complex tasks and simple repetitive tasks; maintain regular attendance; perform work activities on a consistent basis; able to perform noncompetitive work but should avoid high stress level work and avoid jobs that have quotas so it is not fast paced and fairly noncompetitive type work.AR at 16.
C. Analysis
1. Discrepancy Between Opinion and Treatment
The court finds that the ALJ failed to offer specific and legitimate reasons for discounting the opinions of Dr. Koike. The ALJ highlighted a purported discrepancy between Koike's opinion that plaintiff was disabled and treatment records showing that plaintiff "was alright, took his medications regularly, and his mental status examinations were within normal limits . . . ." Id. at 18. Although such a discrepancy can be sufficient, even under the higher "clear and convincing" standard to discount a physician's opinion, see, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), examination of the relevant records reveals that the ALJ's characterization of their contents was incomplete in this case.
First, Dr. Koike never opined or concluded that plaintiff was "alright." A January 6, 2015 progress note authored by Koike began with "[t]he pt [patient] reports that he is alright." Id. at 817. Immediately thereafter, however, plaintiff reported that: (1) he doesn't like talking to people or going out; (2) he thinks people are looking at him and judging him; (3) he has nightmares and occasional flashbacks about his stepfather; (4) he is hypervigilant and has an increase[d] startle response; (5) the past month was "rough" and he felt more depressed; (6) he feels angry at times and is unsure why; (7) he is unable to concentrate and can't focus on activities like watching television or doing things with his son; and (8) that his appetite is low and he feels anxious "a lot of the time." Id. Taken in the full context of the progress note, plaintiff's initial statement that he was "alright" appears less like an assessment of his mental state of being and more like a greeting ///// ///// formality. It certainly was not Dr. Koike's medical assessment of plaintiff's condition. Indeed, Koike went on to assess that plaintiff "appears to have PTSD and MDD." Id.
In a previous progress note, Dr. Koike took down plaintiff's report that he had been physically abused by his stepfather. AR at 819.
PTSD refers to Post-Traumatic Stress Disorder and MDD would appear to refer to Major Depressive Disorder.
Second, the fact that plaintiff took his medications regularly is not a persuasive reason for discounting Dr. Koike's opinions regarding plaintiff's disability. At the same January 2015 visit referenced in the foregoing paragraph, Koike did note that plaintiff "takes meds fairly regularly." Id. In the next sentence, however, Koike noted that the response to those medications was "partial and inadequate." Id. Logically, the fact that a patient frequently takes medications only cuts against a finding of disability if that intake appears to ameliorate his symptoms in some meaningful way. Here, the amelioration was specifically reported to be inadequate.
Third, it is impossible to read Dr. Koike's treatment notes and conclude that plaintiff's mental state fell within any reasonable definition of "normal limits." As noted above, Dr. Koike concluded that plaintiff was afflicted with PTSD and MDD. Id. He also concluded that plaintiff had Attention Deficit Hyperactivity Disorder and noted that plaintiff presented with an anxious mood and affect. Id.
It is true that some of plaintiff's examinations were within normal limits. For instance, Dr. Koike himself noted that plaintiff was a low risk for imminent self-harm or suicide, that he was cooperative, and his thought process was linear. AR at 817. The ALJ's opinion made no attempt to parse these treatment notes in his analysis of why Koike's opinion should be discounted, however. Rather, he simply and summarily stated that "[plaintiff's] mental status examinations were within normal limits." Id. at 18. This gives the impression that plaintiff had a clean, or mostly clean, bill of mental health - an assessment that Koike clearly did not reach.
Thus, this rationale for discounting Dr. Koike's opinions fails to meet the specific and legitimate standard. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) ("Where the purported existence of an inconsistency is squarely contradicted by the record, it may not serve as the basis for the rejection of an examining physician's conclusions."); see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) ("[The treating physician's] statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe ///// panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace.").
2. Subjective Complaints and Limited Examinations
The ALJ also characterized Dr. Koike's examinations of plaintiff as "limited." Id. at 18. It is unclear what this term means in this context. To the extent the ALJ suggests that the number of visits between Dr. Koike and plaintiff (three in this case) was limited and Koike's opinion should be discounted on that basis, the record does not support such a conclusion. It is true that an ALJ may consider the length of a treatment relationship in determining what weight to afford a physician's opinion. See 20 C.F.R. § 404.1527(c). That being said, the Ninth Circuit has held that there is no floor for the number of visits necessary to create a treatment relationship. See Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994). And, in this case, plaintiff had a number of previous visits to the APSS Clinic where Koike practiced. Counting his three visits with Koike's, plaintiff was seen a total of nine times at the clinic by various providers, dating back to July 2013. AR at 817-28. And the diagnoses of these providers largely tracked Koike's. Id. at 821 (symptoms of anxiety that border on paranoia); id. at 825 (finding patient had MDD).
Nor is there a basis in the record to conclude that Dr. Koike's examinations were limited or deficient insofar as they relied "solely on [plaintiff's] subjective complaints." Id. at 18. This characterization fundamentally misapprehends Dr. Koike's treating role. In a recent decision the Ninth Circuit explained that:
Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient's self-report, as well as on the clinician's observations of the patient. But such is the nature of psychiatry. . . . Thus, the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness.Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Koike's treatment notes make clear that he relied in part on his own clinical observations. At each of the three treatment visits, Koike noted that plaintiff's mood and affect were anxious. AR at 817-19. Although these treatment notes are not detailed, they are ultimately sufficient to establish that Koike's opinions were not based solely on plaintiff's self-reported symptoms. See Downey v. Astrue, No. CV 11-02378-SP, 2011 U.S. Dist. LEXIS 134596, *17-18 (C.D. Cal. Nov. 22, 2011) (finding a treating physician's notes were not detailed, but nevertheless sufficient where they "identifie[d] plaintiff's subjective complaints, note[d] [the treating physicians's] objective findings, and provide[d] a diagnosis at each examination."). And other providers at the APSS Clinic who made more detailed notes regarding their observations agreed with Koike's observations regarding plaintiff's anxious demeanor. See, e.g., AR at 821 ("Plaintiff is anxious but pleasant and cooperative with interview, avoids direct eye contact . . . [s]peech is rapid rate and rambling though not pressured . . . [m]ood is anxious . . . .").
3. Weight Credited to Dr. Lacy's Opinion
In closing, the court briefly notes that it is difficult to square the ALJ's decision to accord great weight to Dr. Lacy's opinion with his decision to discount Dr. Koike's. As noted above, the ALJ commented that Koike only treated plaintiff "for a total of three visits." Id. at 18. Yet Lacy only saw plaintiff on a single occasion. Id. at 624. Still more confounding is the fact that Lacy's examination occurred in December 2011 - years before the 2014 and early 2015 treatments with Koike and years before the relevant ALJ decision. Id. As the Ninth Circuit has held, "[a] treating physician's most recent medical reports are highly probative." Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001); see also Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (where a claimant has a worsening condition, medical evaluations prepared several months before hearing are not sufficient evidence to rebut more recent conclusions by a treating doctor).
Plaintiff does not raise a separate argument concerning the weight given to Dr. Lacy's opinion. He does, however, take issue with the ALJ's reliance on Lacy's findings to the extent that such reliance led him to discount Dr. Koike's opinion. ECF No. 17 at 13 ("[T]he ALJ's analysis that Lacy's opinion is based on objective findings and observations and that Koike's opinion is based on plaintiff's subjective complaints is ridiculous."). --------
For the reasons discussed infra, the court will remand for further proceedings. If the ALJ's next decision also accords great weight to Lacy's decision, it should explicitly account for the foregoing in its analysis. ///// /////
4. Remand for Additional Administrative Proceedings
Having found, for the reasons articulated above, that the ALJ's decision to discount Dr. Koike's opinion was not supported by specific and legitimate reasons, the court must decide whether to remand for additional administrative proceedings or for the award of benefits. "The decision whether to remand a case for additional evidence, or simply to award benefits is within the discretion of the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). A court should remand for further administrative proceedings, however, unless it concludes that such proceedings would not serve a useful purpose. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016). The court cannot say that additional proceedings would have no utility in the present case. The contradiction in medical opinions between Drs. Koike and Lacy weighs in favor of additional proceedings. Additionally, the generation of additional medical evidence in the intervening years may prove enlightening. See Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1101 (9th Cir. 2014) (additional proceedings have utility where "there is a need to resolve conflicts and ambiguities, . . . or the presentation of further evidence . . . may well prove enlightening in light of the passage of time.") (internal quotations and quotation marks omitted).
IV. Conclusion
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 17) is GRANTED;
2. The Commissioner's cross-motion for summary judgment (ECF No. 18) is DENIED;
3. This matter is REMANDED for further administrative proceedings; and
4. The Clerk is directed to enter judgment in the plaintiff's favor and close the case. DATED: March 15, 2018.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.