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Monte G. Atkinson v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 12, 2011

MONTE G. ATKINSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

In his motion for summary judgment, plaintiff Monte G. Atkinson (the "plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") that denied plaintiff's application for disability benefits under Title II of the Social Security Act ("Act").*fn1 (Pl.'s Mot. for Summ. J. ("Pl.'s Motion"), Dkt. No. 12 at 1.)

Plaintiff raises several arguments within his motion. First, plaintiff argues that the ALJ conducted a legally flawed review of plaintiff's alleged mental impairments at step three of the requisite analysis. (Pl.'s Motion at 10-14.) As part of this argument, plaintiff claims that the ALJ did not adequately consider the "Paragraph B" and "Paragraph C" criteria of the mental disorders listings within the applicable regulations. (Id.)

Second, plaintiff contends that the administrative law judge (the "ALJ") discounted the medical opinion of plaintiff's treating physician without providing sufficient reasons, thereby rendering erroneous both the ALJ's determination of plaintiff's Residual Functional Capacity ("RFC") and the step three analysis. (Pl.'s Motion at 14-19.) Plaintiff contends that the ALJ cursorily rejected the treating physician's opinion in favor of the opinion of a non-examining, state agency medical consultant. (Id. at 16-19.) As part of this argument, plaintiff contends that the ALJ failed to address a Social Security Agency "Case Analysis" that supported plaintiff's alleged inability to work in an environment with even minimal contact with supervisors, co-workers, or the public. (Id. at 15-16 (citing Administrative Record ("AR") at 221-23).)

Third, plaintiff contends that the ALJ made an unsupported adverse credibility determination regarding plaintiff's testimony about the severity of his symptoms, (id. at 19-21), and plaintiff also contends that the ALJ improperly discounted a Third Party Function Report completed by plaintiff's sister. (Id. at 21-22.) Plaintiff contends that these errors rendered the RFC determination and step three determination flawed and unsupported by substantial evidence. (Id. at 23.) Plaintiff also contends that these errors rendered the ALJ's step four and step five determinations erroneous, because the ALJ gave the vocational expert (the "VE") a baseless hypothetical based upon a flawed RFC determination. (Id. at 23.)

The Commissioner filed a cross-motion for summary judgment and opposition to plaintiff's motion. (Def.'s Mot. for Summ. J. ("Def.'s Motion"), Dkt. No. 14.) Plaintiff filed a reply ("Pl.'s Reply") in support of his motion. (Pl.'s Reply, Dkt. No. 15.)

For the reasons stated below, the court partially grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case to the Commissioner for further proceedings.

I. BACKGROUND*fn2

A. Procedural Background

Plaintiff applied for benefits on November 14, 2007. (AR 52, 56.) The Social Security Administration denied plaintiff's applications both initially and upon reconsideration. (AR 10.)

On May 13, 2009, the ALJ conducted a hearing regarding plaintiff's claims. (AR 10-16.) Plaintiff initially alleged a disability onset date of November 10, 2007; subsequently, the ALJ granted plaintiff's request to amend the onset date to November 11, 2006. (AR 10.) Plaintiff, who was represented by an attorney, testified at the hearing. (AR 17-51.) A vocational expert ("VE") also testified at the hearing. (Id.) During the hearing, plaintiff confirmed that his previous employment included work as a computer operator, "mud logger," and possibly work in a liquor store, although he could not specifically recall the timing of the liquor store work. (AR 19-27.)

In a decision dated September 28, 2009, the ALJ determined that plaintiff was not disabled.*fn3 (AR 10-16.) In reliance on the VE's testimony, the ALJ also found that plaintiff was capable of performing his past relevant work as a computer operator. (AR 15-16.) Additionally, and also in reliance on the VE's testimony, the ALJ found that plaintiff could perform other work, such as light, unskilled work as a poultry dresser. (AR 15-16.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AR 1-4.) Plaintiff subsequently filed this action.

B. Medical Evidence

Several medical opinions have been rendered regarding plaintiff's medical issues and functional limitations. Plaintiff does not dispute the ALJ's finding that plaintiff has no limitations on his ability to do work-related physical activities, and accordingly, the undersigned's analysis addresses plaintiff's alleged ability to do work-related mental activities.

Plaintiff's treating psychiatrist, Dr. Inmas Coquia, treated plaintiff on at least six occasions, with treatment notes evidencing each occasion. (AR 180-81, 182-83, 237-38, 287-89, 307-08, 325-28.) In her "Medical Assessment of Ability To Do Work Related Activities (Mental)," Dr. Coquia diagnosed plaintiff with anxiety disorder, major depression, personality disorder with schizoid traits, and social phobia. (AR 284-86.) Dr. Coquia also assessed plaintiff's mental ability to engage in work-related activities. (Id.) She opined that plaintiff had "marked" impairments in his ability to follow work rules, relate to co-workers, make simple work-related decisions independently, interact with supervisors, behave in an emotionally stable manner, sustain an ordinary work routine without special supervision, and demonstrate reliability. (Id.) She opined that plaintiff had "extreme" impairments in his ability to deal with stress and deal with the public. (Id.) She also opined that plaintiff had "moderate" impairments in his ability to maintain attention/concentration for at least two straight hours. (Id.) In the treatment notes arising from her six encounters with plaintiff, Dr. Coquia assessed plaintiff as having a Global Assessment of Function ("GAF") score of 51-60 on five occasions (AR 180-81, 182-83, 237-38, 287-89, 307-08), and a GAF score of 61-70 on one occasion (AR 325-28).

Plaintiff also received mental health treatment from various mental health physicians affiliated with Kaiser, including Dr. Anina Schwartz (AR 167, 172), Dr. Aileen YapLacap (AR 181-87), Dr. Thomas Elmore (AR 178-79, 241-45, 300-02, 313-16, 319-20, 321-23, 330-32). Dr. Elmore, who treated plaintiff on multiple occasions, sometimes assessed plaintiff's GAF score as 51-60, and sometimes assessed it as 61-71. (AR 179, 242, 245, 302, 315.) While the record contains treatment notes from these physicians, the record does not contain the physicians' ultimate medical assessments of plaintiff's ability to do work-related mental activities.

A state agency non-examining medical consultant, psychologist Dr. P. Davis, completed a "Psychiatric Review Technique" form analyzing plaintiff's diagnoses, symptoms, and functional limitations arising from his mental health issues. (AR 203-16.) Dr. Davis opined that plaintiff could perform simple and repetitive tasks with little general public and co-worker contact, that he could adapt to a stable work setting, and should work independently. (AR 219.) Another agency non-examining medical consultant, psychiatrist Dr. K.J. Loomis, concurred with Dr. Davis' opinions in a Social Security Administration "Case Analysis." (AR 277.)

A separate Social Security Administration "Case Analysis," signed by a Dr. Thien P. Nguyen, contained the opinion*fn4 that plaintiff lacked the ability to sustain substantial gainful activity in an environment where he would have even minimal contact with supervisors, co-workers, or the public. (AR 221-23.)

C. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. (AR 16.) At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since November 11, 2006, plaintiff's amended alleged date of onset. (AR 12.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "generalized anxiety disorder (GAD), unspecified; depression, major, recurrent, and a personality disorder, schizoid." (AR 12.)

At step three, the ALJ determined that plaintiff's impairments did not meet or medically equal any impairment or combination of impairments listed in the applicable regulations.*fn5 (AR 12.) In order to determine whether a claimant's mental condition meets a listed impairment, the ALJ must consider: (1) whether specified diagnostic criteria ("Paragraph A" criteria) are met; and (2) whether specified functional restrictions are present ("Paragraph B" criteria). Lester, 81 F.3d at 828 (citing 20 C.F.R. § 404.1520a). If the claimant's mental impairment is severe, the ALJ must determine if it meets or is equivalent in severity to a listed mental disorder. 20 C.F.R. § 416.920a(d)(2). This determination is accomplished by comparing the medical findings pertaining to the claimant's impairment "and the rating of the degree of functional limitation to the criteria of the appropriate listed mental disorder." Id. The degree of functional limitation for the first three Paragraph B criteria is rated as none, mild, moderate, marked, or extreme. 20 C.F.R. § 416.920a(c)(4). The final Paragraph B criteria is rated as none, one or two, three, four or more. Id.

Simply put, after the ALJ determines plaintiff's Paragraph A criteria, the ALJ reviews the medical findings and rates plaintiff's functional limitations to determine if they satisfy the Paragraph B criteria. A plaintiff who satisfies the Paragraph A criteria must be found disabled if his or her impairments result in two or more functional limitations found in Paragraph

B. Lester, 81 F.3d at 828-29. Alternatively, "[t]he required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied." 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.04, 12.06 (emphasis added).

Here, the ALJ concluded*fn6 that plaintiff's mental functional limitations did not meet or medically equal "the criteria of listings 12.04 and 12.06." (AR 12-13).*fn7 Specifically, the ALJ concluded that plaintiff's limitations did not meet the criteria of Paragraphs B or Paragraph C. (AR 13.)

Between steps three and four, the ALJ assessed plaintiff's mental residual functional capacity ("RFC"). The ALJ found that plaintiff had no limitations performing work-related physical activities. (AR 13.) With respect to plaintiff's ability to perform work-related mental activities, however, the ALJ found:

[T]hat the claimant has the capacity to perform work-related mental activities as follows: no limitations in his ability to understand, remember, and carry out short, simple instructions; slight limitation in his ability to understand, remember, and carry out detailed job instructions; no limitations on his ability to make judgments on simple, work-related decisions; slight limitations in his ability to make judgments on detailed work-related decisions; his ability to interact appropriately with the public is moderately limited; he is limited to occasional exposure to the general public; his ability to interact appropriately with supervisors and/or co-workers is slightly limited; his ability to respond appropriately to work pressures in a usual work setting fluctuates between slight and moderate; and his ability to respond appropriately to changes in a routine work setting is slightly limited. (AR 13.)

In discussing this RFC determination, as well as in discussing the step three analysis, the ALJ discounted plaintiff's treating psychiatrist's opinion regarding plaintiff's capacity to perform work-related mental activities. (AR 15.) Dr. Coquia, the treating psychiatrist, had opined that plaintiff had "marked" impairments in most areas of functioning. (AR 284-86.) The ALJ's decision addressed Dr. Coquia's opinion in three sentences:

The claimant's psychiatrist issued a medical source statement on October 2, 2008, regarding the claimant's capacity to perform work-related mental activities. (Exhibit 13F). His psychiatrist stated that in most areas of functioning, the claimant had marked impairments. The undersigned is unable to fully credit the opinions of this psychiatrist, as they are inconsistent with the claimant's treatment records with the psychiatrist, who consistently assessed the claimant with having a GAF ranging as high as 70 and generally only mild symptoms of depression or anxiety. (AR 15.) Thus, the ALJ was "unable to fully credit the opinions" of Dr. Coquia because he deemed them "inconsistent with the claimant's treatment records with the psychiatrist, who consistently assessed the claimant with having a GAF ranging as high as 70 and generally only mild symptoms of depression or anxiety." (AR 15.)

After rejecting Dr. Coquia's opinion that plaintiff had various "marked" impairments in his capacity to perform work-related mental activities, the ALJ immediately turned to the opinion of a non-examining state agency medical consultant. (AR 15.) Because of the inconsistencies the ALJ perceived between Dr. Coquia's opinion and her own treatment records, the ALJ found the non-examining state agency medical consultant's opinion to be "more accurate" than Dr. Coquia's opinion. (Id.) The non-examining consultant found plaintiff to have "mild to moderate anxiety and mild depressive symptoms," and the ALJ credited that opinion. (Id.)

After assessing plaintiff's RFC, the ALJ proceeded to step four of the analysis and determined that plaintiff was capable of performing his past relevant work as a computer operator. (AR 15.)

Due to the ALJ's finding at step four, the ALJ was not required to proceed to step five of the inquiry. However, the ALJ nonetheless continued on to step five and determined that plaintiff could perform several other jobs existing in the regional economy. (AR 16.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.").

Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). The evidence supporting a decision must be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lewin v. Schweiker, 654 F.2d 631, 633 (9th Cir. 1981); accord Rand v. Sullivan, 924 F.2d 159, 161 (9th Cir. 1990).

A failure to make adequate findings would at least necessitate a remand for a redetermination of fault. Lewin, 654 F.2d at 637. "If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded." Id. If reliance has been placed on one portion of the record to the disregard of overwhelming evidence to the contrary, the reviewing court must decide against the Secretary. Harrison v. Heckler, 746 F.2d 480, 482-83 (9th Cir. 1984); Lewin, 654 F.2d at 635.

III. ANALYSIS

A. Plaintiff's Treating Psychiatrist's Opinions Were Not Actually Inconsistent With Her Treatment Notes In The Way The ALJ Stated

Plaintiff argues that the ALJ improperly rejected Dr. Coquia's opinion without offering valid reasons for the rejection, and that both the RFC analysis and step three analysis were erroneous. (Pl.'s Motion at 18-19 (because Dr. Coquia's opinion "indicated 'marked' level impairments in a variety of essential work functions and strongly supported a finding of disabled at Steps-3 and 5, remand for reconsideration of that opinion is required"); id. at 14 (because the ALJ rejected Dr. Coquia's opinion, the ALJ's "Residual Functional Capacity determination was in error.") Plaintiff also argues that the ALJ accepted the opinion of a non-examining medical consultant without a basis in substantial evidence. (Id. at 18.)

Defendant counters that the ALJ's identification of an inconsistency between Dr. Coquia's notes and her ultimate opinion sufficed as grounds for rejecting Dr. Coquia's opinion. (Def.'s Motion at 10-13.) Defendant also argues that substantial evidence supports the rejection of Dr. Coquia's opinions, as well as the ALJ's decision to accept the opinion of the non-examining medical consultant, Dr. Davis. (Id.)

The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of physicians who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. "The ALJ is responsible for determining credibility and resolving conflicts in medical testimony." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

A more complete quote from Magallanes clarifies what weight will typically be ascribed to treating physicians' opinions:

We afford greater weight to a treating physician's opinion because he is employed to cure and has a greater opportunity to know and observe the patient as an individual. [Citation.] The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. [Citations.] The ALJ may disregard the treating physician's opinion whether or not that opinion is contradicted. [Citations.] For example, the ALJ need not accept a treating physician's opinion which is brief and conclusionary in form with little in the way of clinical findings to support [its] conclusion. [Citation.] To reject the uncontroverted opinion of a claimant's physician, the ALJ must present clear and convincing reasons for doing so. [Citations.]

To reject the opinion of a treating physician which conflicts with that of an examining physician, the ALJ must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. [Citations.] The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." [Citation.] [ . . .] [T]o the extent that [the nontreating physician's] opinion rests on objective clinical tests, it must be viewed as substantial evidence . . . . [Citations.] Where medical reports are inconclusive, questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary. [Citations.]

Magallanes, 881 F.2d at 751 (emphasis added) (internal quotation marks and citations omitted) (upholding ALJ's rejection of treating physician's opinion where rejection was based partially, but not solely, upon the testimony of a non-examining, non-treating physician); accord Lester, 81 F.3d at 830 (holding that ALJ improperly rejected treating physician's opinion where the rejection was based solely upon the testimony of a non-treating, non-examining medical advisor); accord Batson, 359 F.3d at 1194-96. Whether or not an ALJ finds that a treating physician's opinion is contradicted by other evidence in the record, "an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective medical findings." See Batson, 359 F.3d at 1195 (citations omitted).

"Clear and convincing" reasons must be provided when an ALJ rejects a treating physician's opinion where nothing in the record controverts it. Magallanes, 881 F.2d at 751. If evidence in the record conflicts with the treating physician's opinion, or if the opinion is conclusory, however, the ALJ must give "specific and legitimate" reasons before discounting that opinion. Id. (citing cases); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that treating physician's opinion is "not binding on the ALJ with respect to the existence of an impairment or the ultimate determination of disability," and holding that an examining physician's opinion alone constituted substantial evidence where it rested upon his own independent examination of the claimant); accord Batson, 359 F.3d at 1195.

In sum, a treating physician's opinion is not automatically controlling. See Magallanes, 881 F.2d at 751; Batson, 359 F.3d at 1194-96. An ALJ is entitled to discount a treating physician's opinion in light of conflicting evidence, and conflicting evidence may take the form of an examining physician's opinion or a "contradiction" between a physician's treatment notes and her ultimate opinion. E.g., Lester, 81 F.3d at 830; Valentine, 574 F.3d at 692-93 (holding that the ALJ's identification of a "a contradiction" between treating the physician's opinion and treatment progress reports constituted a specific and legitimate reason for rejecting the opinion).

Here, the ALJ found that Dr. Coquia's treatment notes contradicted her opinion and, consequentially, the ALJ rejected the opinion. (AR 15.) The ALJ concluded that Dr. Coquia's notes "consistently" gave plaintiff a GAF "ranging as high as 70" and found plaintiff to have "only mild symptoms of depression or anxiety," which, in the ALJ's view, conflicted with Dr. Coquia's ultimate conclusion that plaintiff had "marked" impairments. (Id.) After succinctly describing this so-called inconsistency, without any further discussion or detail, the ALJ rejected Dr. Coquia's opinion that plaintiff had "marked" functional limitations. (Id.) As described below, the ALJ failed to properly support his rejection of Dr. Coquia's opinion, and the rejection is not supported by substantial evidence.

1. The ALJ Rejected Dr. Coquia's Opinion Based On A Selective Reading Of The Treatment Notes In The Record

It is error to read a treating physician's notes "selective[ly]" rather than"in full and in context." Holohan, 246 F.3d at 1204-05. Relatedly, an ALJ cannot properly reject a treating physician's opinion as being "inconsistent" with his or her treatment notes if the "inconsistency" is only, for instance, that plaintiff showed "some improvement" during treatment. Id.*fn8 "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." Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (holding that the ALJ erred by discounting the opinion of an examining physician due to a perceived "inconsistency" between that opinion and the claimant's testimony, because the perceived "inconsistency" arose from the ALJ's "quoting an isolated sentence" from the physician's report and a "plain reading of the record" revealed no actual inconsistency).

In Holohan, the ALJ rejected the treating physician's opinion that the claimant suffered from "marked" impairments with respect to "performance of any work activity due to anxiety/panic attacks and poor concentration." Holohan, 246 F.3d at 1204-05. The ALJ in Holohan rejected the opinion because he found it to be "totally inconsistent with [the physician's] own treatment notes and records . . ." Id. In particular, that ALJ stated that the physician's treatment notes "indicate control of panic attacks with" medication, a "great improvement" in the plaintiff's condition, and the physician's finding that plaintiff's panic attacks increased with inactivity such that she was "happy" when she joined the YMCA. Id.

The Ninth Circuit Court of Appeals found legal error in the ALJ's rejection of the treating physician's opinion on these grounds. Id. The court found that the ALJ was too "selective" in his reliance on the treating physician's notes, and that he "exaggerate[d]" their contents. Id. at 1205. For instance, the court's review of the record confirmed that, while the treating physician's notes revealed that plaintiff was "doing better" on one occasion, the notes also explained that this meant plaintiff's panic attacks were only "15% better." Id. Similarly, the notes never described a "great improvement" in plaintiff's condition. Id. The court concluded that the treating physician's notes "must be read in context of the overall diagnostic picture he draws. That a person who suffers from 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." Id. (emphasis added); accord Ryan, 528 F.3d at 1201 (citing Holohan and holding that treatment notes reflecting a patient's "improvement" did not undermine the physician's repeated conclusions and diagnosis). The court concluded that the ALJ's proffered reason for rejecting the treating physician's opinion - that the opinion "conflicted with" that physician's treatment notes - was not supported by substantial evidence. Id. "When read in full and in context, [the treating physician's] treatment notes are consistent with his opinion letter," and, as such, the "substantial evidence does not support the specific reason the ALJ gave for rejecting" that opinion.*fn9 Id. (emphasis added). Accordingly, in part because the ALJ erred in rejecting the treating physician's opinion due to a non-existent inconsistency, the court reversed and remanded with instructions to award benefits. Id. at 1205, 1211.

a. Dr. Coquia's Treatment Notes Consistently Described Plaintiff's Symptoms As "Moderate"

Here, the ALJ was selective in his review of Dr. Coquia's notes and exaggerated their contents. See Holohan, 246 F.3d at 1204-05. The ALJ inaccurately stated that Dr. Coquia's treatment notes reflect that Dr. Coquia "consistently assessed the claimant with . . . generally only mild symptoms of depression or anxiety." (AR 15.) A review of Dr. Coquia's treatment notes confirms that Dr. Coquia consistently assessed plaintiff as having "moderate symptoms" of anxiety, an assessment always noted on the same line as the GAF scores of 51-60. (AR 180-81, 182-83, 237-38, 287-89, 307-08.) According to the treatment notes in the record, on only one visit out of six did Dr. Coquia's notes describe plaintiff's symptoms as "mild." (AR 325-28.) The ALJ did not describe how he read Dr. Coquia's treatment notes as reflecting only "mild" symptoms, and in any event, the undersigned's review of those notes does not reveal a "consistent" use of the term "mild" with respect to plaintiff's anxiety symptoms. Moreover, even if Dr. Coquia's treatment notes consistently assessed plaintiff's symptoms as "mild," which they do not, the ALJ did not describe how such assessment necessarily conflicts with a conclusion that plaintiff has various "marked" functional limitations.

Taking Dr. Coquia's notes "in full and in context," Dr. Coquia's one-time assessment of plaintiff's symptoms as "mild" is perhaps most accurately considered an improvement in plaintiff's condition that is not itself sufficient to constitute an inconsistency between Dr. Coquia's treatment notes and her opinion. See Holohan, 246 F.3d at 1204-05. The record does not support the ALJ's conclusion that Dr. Coquia's treatment notes "consistently" assessed plaintiff's symptoms as "mild." (AR 15.) Perhaps the ALJ equated "moderate symptoms" of anxiety with "mild symptoms" of anxiety, but his decision does not clearly explain as much. In any event, the ALJ failed to identify particular portions of Dr. Coquia's treatment notes the ALJ believed reflected an assessment of plaintiff's symptoms as "mild." (AR 15.) Accordingly, the ALJ failed to provide clear and convincing reasons, or, for that matter, specific and legitimate reasons, for his rejection of Dr. Coquia's opinion, and the reasons he cursorily gave were not supported by substantial evidence. (AR 15.)

b. Dr. Coquia's Treatment Notes Consistently Described Plaintiff's GAF Score As "51-60"

Similarly, the treatment notes in the record do not support the ALJ's conclusion that Dr. Coquia "consistently" gave plaintiff a GAF score "ranging as high as 70." (AR 15.) In actuality, the record reflects that Dr. Coquia only gave plaintiff a GAF score of "61-70" on one occasion, on June 4, 2008, rather than "consistently." (AR 325-28.) Indeed, the treatment notes for all of Dr. Coquia's five other visits with plaintiff reflect Dr. Coquia's assessment that plaintiff was rated as being within the "moderate" GAF range of "51-60." (AR 180-81, 182-83, 237-38, 287-89, 307-08.) Rather than "consistently" giving plaintiff a GAF score "as high as 70," then, it is more accurate to state that Dr. Coquia consistently gave plaintiff a GAF score of 51-60, and on one occasion gave him a GAF score of 61-70. (Compare AR 180-81, 182-83, 237-38, 287-89, 307-08 [GAF scores 51-60] with AR 325-28 [GAF score 61-70].)*fn10

Taking these GAF scores in context of the overall diagnostic picture painted by Dr. Coquia'sopinion and her treatment notes, the ALJ failed to provide a proper basis for his rejection of Dr. Coquia's opinions. In finding Dr. Coquia's opinion to be inconsistent with her notes, the ALJ merely "quot[ed] an isolated sentence" from the many treatment notes in the record. See Holohan, 246 F.3d at 1204-05; Nguyen, 100 F.3d at 1465. A "plain reading of the record" reveals no actual inconsistency. See Nguyen, 100 F.3d at 1465.

Further, one "improvement" in GAF scores does not render Dr. Coquia's treatment notes in conflict with her ultimate opinion that plaintiff has "marked" impairments. See Holohan, 246 F.3d at 1205 ("That a person who suffers from 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.") (emphasis added); accord Ryan, 528 F.3d at 1201 (citing Holohan and holding that treatment notes reflecting a patient's "improvement" did not undermine the physician's repeated conclusions and diagnosis).

2. The ALJ Failed To Explain How Having A GAF Score Of 61-70 Would Be Inconsistent With Having "Marked" Impairments

Putting aside the fact that the ALJ found an "inconsistency" based on his erroneous and selective reading of the record, the ALJ's finding also suffered from an additional defect. Even if Dr. Coquia consistently gave plaintiff a GAF score of 61-70 and consistently described his symptoms as "mild," neither of which is reflected in the record, the ALJ nonetheless failed to explain how these assessments are necessarily inconsistent with opining that the patient has "marked" impairments. (AR 15.) With no real discussion of definitions, the ALJ concluded that it is inconsistent to give a patient a GAF score "as high as 70" and to determine that the patient has "marked" limitations. (AR 15.)

For instance, the ALJ correctly defined "marked" as "more than moderate but less than extreme." (AR 13.) Beyond offering this one-sentence definition,*fn11 however, the ALJ did not address the interplay between the term "marked" and the significance of having a GAF score of 61-70, or how one is necessarily "inconsistent" with the other. (Id.)

GAF scores range from 1--100, and in calculating a GAF score, the physician considers "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed.) ("DSM--IV"). A GAF score of 51--60 indicates "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflict with peers or co-workers)." Id. at 34. A GAF score between 61--70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful interpersonal relationships." Id.

Given the above-stated definition of "marked" and the above-stated significance of GAF scores of 51-60 and 61-70, it is not clear that a person could never simultaneously have "marked" impairments and either GAF score. At least, however, nothing in the ALJ's decision explains how it is per se "inconsistent" to ascribe someone a GAF score of 61-70 and simultaneously opine that the person has "marked" functional impairments.

Further, courts have recognized that a given GAF score is not necessarily "inconsistent" with treating physician opinions simply because an ALJ summarily concludes as much. Where an ALJ fails to give specific reasons for rejecting an opinion due to an inconsistency related to GAF scores, or fails to identify substantial evidence in the record supporting the rejection, the ALJ's decision is erroneous. See Guttilla v. Astrue, No. 09cv2259 MMA(RBB), 2010 WL 5313318, at *15 (S.D. Cal. Aug. 13, 2010) (unpublished). In remanding with direction to award benefits to the claimant, the court in Guttilla held that:

[o]ther than stating that the GAF score of fifty is inconsistent with [the treating psychiatrist's] assessment, the ALJ does not give any specific reason for that conclusion. [Citation.] He has not explained how the doctor's assessment conflicts with the GAF score. As noted previously, the court's function is not to create a new rationale to support the administrative law judge's decision. [Citation.] Because the GAF score is consistent with some of the doctor's assessment notes, and the ALJ does not identify substantial evidence in the record to discredit it, the determination that a GAF score of fifty was inconsistent with [treating psychiatrist's] assessment is not a clear and convincing reason for giving his opinion little weight.

Id. (emphasis added and internal citations omitted) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).)

Accordingly, even if Dr. Coquia'streatment notes reflected that Dr. Coquia had "consistently" given plaintiff a GAF score of "61-70" and called his symptoms "mild," which is not the case*fn12 , the ALJ nonetheless failed to explain how such score was inconsistent with Dr. Coquia's opinion that plaintiff had "marked" impairments. Without more, the undersigned concludes that the ALJ provided neither clear and convincing reasons nor, for that matter, specific and legitimate reasons for rejecting Dr. Coquia's opinion regarding plaintiff's "marked" mental impairments. See Holohan, 246 F.3d at 1202 (stating "[a]n ALJ may reject the uncontradicted medical opinion of a treating physician only for clear and convincing reasons supported by substantial evidence in the record"); Lester, 81 F.3d at 830 (holding that "[e]ven if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record for so doing") (internal quotation marks omitted); id. at 834 (stating that "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician"); Valentine, 574 F.3d at 692.

Because the ALJ did not provide valid reasons for rejecting Dr. Coquia's opinion, this rejection renders erroneous both the RFC determination and the step three analysis: both arose from that improper rejection. The ALJ's decision to deem the opinion of the non-examining state agency medical consultant as "more accurate" than Dr. Coquia's opinion was based entirely on the ALJ's above-described selective reading of the record and resulting finding of an "inconsistency." (AR 15.) After a more complete review of the documents in the record, the court finds that the ALJ failed to articulate an inconsistency between Dr. Coquia's opinion and her notes that is actually borne out by the record. Thus, the ALJ's basis for concluding that plaintiff does not have an impairment or combination of impairments that met or medically equal the criteria of listings 12.04 and 12.06 at step three of the analysis, as well as the ALJ's RFC determination, is not supported by substantial evidence.

Further, aside from the ALJ's reliance on a non-existent inconsistency, the ALJ offered no additional grounds*fn13 for rejecting Dr. Coquia's opinion. In effect, because the "inconsistency" described by the ALJ is not actually borne out by the record, the ALJ effectively rejected a treating physician's opinion in favor of a non-examining medical consultant's opinion alone. Rejecting a treating physician's opinion in favor of a non-treating physician's opinion, without more, is legally erroneous. See Lester, 81 F.3d at 830-31 (ALJ's rejection of treating physician's opinion was improper where it was based solely upon the testimony of a non-treating, non-examining medical advisor). Indeed, a non-examining medical advisor's testimony cannot "by itself constitute substantial evidence that warrants a rejection of either the treating doctor's or the examining psychologist's opinion." Id. at 833; Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990) ("non-examining physicians' conclusion[s], with nothing more" do not constitute substantial evidence controverting an examining physician's opinion.) While the Commissioner is correct that an ALJ "may disregard the treating physician's opinion whether or not that opinion is contradicted," here the only reason the ALJ offered for rejecting such an opinion*fn14 was due to a perceived "contradiction" that the record does not actually support. See Magallanes, 881 F.2d at 751. Accordingly, the undersigned will remand this matter to the agency for further proceedings.

The decision of whether to remand for further proceedings or simply to award benefits is within the court's discretion. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Generally, the court should direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings. Varney v. Sec'y of Health and Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988). Although the court understands the importance of expediting disability claims, Varney, 859 F.2d at 1401, remanding this case for further administrative proceedings will serve a useful purpose in the resolution of this case.

On remand, the agency should reassess plaintiff's mental impairments at step three of the analysis and the RFC determination. The reassessment should specifically address whether Dr. Coquia's opinion regarding plaintiff's "marked" impairments is entitled to weight. Whether or not the ALJ determines that Dr. Coquia's opinion is entitled to weight, the ALJ's decision should cite to evidence in the record that supports the determination. If, for instance, the ALJ again determines that Dr. Coquia's opinions are "inconsistent" with her treatment notes, the ALJ should clearly identify the perceived inconsistencies and describe how two or more given statements are actually in conflict. This remand does not preclude the ALJ from reassessing the existing record and Dr. Coquia's opinion, other physicians' opinions, and/or further developing the record regarding the diagnosis of plaintiff's impairments and the functional limitations resulting from these conditions insofar as the remainder of the disability determination, including assessment of plaintiff's RFC, is concerned.

B. Because The ALJ Erred At Step Three And In His RFC Analysis, The Court Need Not Address Plaintiff's Other Arguments

As noted above, plaintiff also argues that the ALJ committed several other errors, namely, failing to adequately consider "Paragraphs B and C" of the mental disorders listings at step three*fn15 (Pl.'s Motion at 10-14), making adverse credibility determinations as to representations by plaintiff and plaintiff's sister regarding the severity of plaintiff's symptoms (id. at 19-21), and giving the VE an unfounded hypothetical from which to base the analyses at steps four and five (id. at 23). However, the undersigned need not address these alleged errors. The nature of the remand ordered herein is of a sort that will likely impact the ALJ' sequential analysis from step three through step five. Moreover, because the remaining claims of error derive, at least in part, from the errors addressed above, the undersigned need not make a determination regarding the additional alleged errors here.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Dkt. No. 12) is granted in part, and this matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

2. The Commissioner's cross-motion for summary judgment (Dkt. No. 14) is denied.

3. The Clerk of Court is directed to enter judgment in favor of plaintiff.


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