Saltzman v. Commissioner of Social Security

          MEMORANDUM OPINION AND ORDER

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties (ECF Nos. 8 and 12), this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are the parties' briefs on the merits (ECF Nos. 18 and 19). For the reasons discussed below, the matter will be remanded for further proceedings.

         The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

         I. THE DISABILITY EVALUATION PROCESS

         To achieve uniformity of decisions, the Commissioner employs a five-step sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed not disabled and the claim is denied;

Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe impairment; if not, the claimant is presumed not disabled and the claim is denied;

Step 3 If the claimant has one or more severe impairments, determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted;

Step 4 If the claimant's impairment is not listed in the regulations, determination whether the impairment prevents the claimant from performing past work in light of the claimant's residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied;

Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant's residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and the claim is denied.

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

         To qualify for benefits, the claimant must establish the inability to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental impairment of such severity the claimant is unable to engage in previous work and cannot, considering the claimant's age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

         The claimant establishes a prima facie case by showing that a physical or mental impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

         II. THE COMMISSIONER'S FINDINGS

         Plaintiff applied for social security benefits on January 28, 2013. See CAR 32.^[1]In the application, plaintiff claims disability began on January 18, 2012. See id. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 25, 2016, before Administrative Law Judge (ALJ) K. Kwon. In a March 6, 2017, decision, the ALJ concluded plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): bipolar disorder, depressive disorder, degenerative joint disease of the cervical spine and lumbar spine, and headaches;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: light work, except she is limited to occasional postural maneuvers (climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling) but with no climbing of ropes, ladders, and scaffolds; the claimant is precluded from work at heights or around moving machinery as safety precautions; she is limited to simple, repetitive tasks equivalent to unskilled work with a maximum specific vocational preparation (SVP) of 2 with no public contact;

4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

See id. at 35-48.

         After the Appeals Council declined review on June 21, 2018, this appeal followed.

         III. DISCUSSION

         In her opening brief, plaintiff argues: (1) the ALJ failed to properly evaluate the opinions of Drs. Mai, Kiefer, and Forman regarding limitations associated with plaintiff's mental impairments; (2) the ALJ failed to properly evaluate plaintiff's statements and testimony; and (3) the ALJ failed to properly evaluate lay witness evidence.

         A. Evaluation of Medical Opinions

         “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical opinion over another. See id.

         Under the regulations, only “licensed physicians and certain qualified specialists” are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on an examination, the “. . . physician's opinion alone constitutes substantial evidence, because it rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social workers are not considered an acceptable medical source. See Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). Opinions from “other sources” such as nurse practitioners, physician assistants, and social workers may be discounted provided the ALJ provides reasons germane to each source for doing so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance when opinions from “other sources” may be considered acceptable medical opinions).

         The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 821, 830-31 (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, than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

         In addition to considering its source, to evaluate whether the Commissioner properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining medical professional only for “clear and convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by an examining professional's opinion which is supported by different independent clinical findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

         A contradicted opinion of a treating or examining professional may be rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate reasons, the Commissioner must defer to the opinion of a treating or examining professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any event, the Commissioner need not give weight to any conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating physician's conclusory, minimally supported opinion); see also Magallanes, 881 F.2d at 751.

         At Step 4, the ALJ evaluated the medical opinion evidence of record. See CAR 40-45. Plaintiff challenges the ALJ's evaluation of the opinions of Drs. Mai, Kiefer, and Forman regarding plaintiff's mental impairments.^[2]

         1. Dr. Mai

         i. The ALJ's Analysis

         As to Dr. Mai, the ALJ stated:

Since about August 2012, the claimant has pursued mental heath care through the Solano County Department of Mental Health. When initially seen, she complained of depressed mood, sleep disturbance, diminished concentration loss of interest, excess worry, fatigue, feelings of guilt, increased energy, auditory hallucinations, poor judgment, racing thoughts, restlessness, and thoughts of suicide. She was diagnosed with bipolar disorder and amphetamine abuse (Exhibit B20F). In November 2013, the claimant was evaluated by Tina Mai, M.D. The claimant complained of mood fluctuations and described not sleeping for days, mood swings, irritability, spending sprees, grandiosity, and racing thoughts. Mental status examination disclosed excess speech, expansive affect, and labile mood (Exhibit B5F/14).

Dr. Mai's subsequent progress notes reflect trials of multiple medications at varying dosages. The claimant reported side effects [and] ineffectiveness of prescribed medications. In March 2014, the claimant reported increased fatigue and loss of motivation. Her complaint of weight gain was believed to be due to medication and inactivity. Dr. Mai further supported the claimant's application for disability indicating that the claimant was not able to work. In April 2014, Dr. Mai noted improvement with an increase in dosage in medication. She further recounted that the claimant had had many jobs with difficulty showing up for work and maintaining work activity due to mood instability. Diagnoses were bipolar disorder and amphetamine dependence that was in early remission. Progress notes include observations and mental status examinations disclosing depressed and irritable mood in May 2014 (Exhibit B20F). In August 2014, Dr. Mai noted the claimant was slightly hypomanic with fact speech, elated mood, and minimal sleep. Examination in October 2014 disclosed the claimant appeared depressed and paranoid. In the next month, Dr. Mai reported that mood was irritable and mixed, suspicious, and tearful. The trials of medications continued and in June 2016, Dr. Mai reported the claimant was less labile although with persistent paranoia, racing thoughts, and mood lability. The claimant also stopped using medications complaining of side effects of leg cramping, diarrhea, and ineffectiveness. Dr. Mai's December 2015 progress note indicated a strong support for disability benefits due to two years of mood instability that was of a severe degree in spite of medication. Dr. Mai indicated that the mood swings were visible on medical visits with a depressive disorder and manic symptoms of irritability and agitation (Exhibit B16F/6). In August 2016, Dr. Mai noted that Risperdone had been prescribed and ceased by the claimant. During that visit, it was noted that the claimant complained of decreased sleep, racing thoughts, and mood fluctuation. Invega was prescribed but the claimant did not try the medication (Exhibit B21F).

. . .Dr. Mai's progress notes indicate that the abnormal clinical signs associated with the bipolar disorder and the rapid cycling of mood swings prevented the claimant from performing sustained work. Although Dr. Mai has provided long-term care and her progress notes document observed manic and depressive phases of the bipolar disorder, the undersigned is not persuaded that the evidence supports Dr. Mai's assessment. Dr. Mai has prescribed trials of medication and there are reported signs of improvement. In September 2015, the claimant reported improvement on Depakote and Latuda. Her mood was considered stable with no side effects from medications. Her sleep was improved. Mental status examination showed sufficient relief of symptoms that Dr. Mai recommended the claimant try volunteer work or vocational rehabilitation for a few hours weekly to get out and establish a routine (Exhibit B16F/13). Dosage of medication was increased and the claimant complained of manic symptoms with irritability, pressured speech, angry mood, and labile affect. Dr. Mai recommended reducing the dosage of medications but the claimant refused to stay on the medications so that Zyprexa and Depakote at an increased dose was prescribed (Exhibit B16F/10). Dr. Mai's recommendation for vocational rehabilitation or volunteer work is inconsistent with her opinion the claimant is unable to perform work activity. Dr. Mai believed the claimant was unable to perform full time work due to the mood swings, however, the undersigned is not persuaded that there is not a medical regimen that would provide sufficient control of the mood swings and related symptoms as is reflected in Dr. Mai's progress notes. Thus, the undersigned does not give controlling weight to Dr. Mai's opinion. It is also noted that although Dr. Mai expressed her opinion on an inability to work, that conclusion is reserved to the Commissioner of Social Security. Moreover, Dr. Mai's progress notes include mental status examinations with minimally abnormal clinical signs that are inconsistent and unsupportive of her opinion.

CAR 40-42.

         ii. Plaintiff's Contentions

         Plaintiff first summarizes evidence from Dr. Mai as follows:

Dr. Mai is a psychiatrist at Solano County Health and Social Services who has treated Plaintiff's bipolar and post-traumatic stress disorders since 2012. The record contains approximately 17 reports from separate treatment visits in which Dr. Mai examined Plaintiff, in addition to mental health therapy other Solano County professionals provided to Plaintiff. See AR at 708-711, 1151-58, 1160-61, 1162-63, 1255-74, 1277-96; see also AR at 11-12, 1159, 1275-76, 1297-99. Dr. Mai's treatment reports are graphic as to the history of trauma Plaintiff has endured throughout her life and the lasting effects. Those effects, in Dr. Mai's strong opinion, make it so Plaintiff is unable to maintain competitive work.

Despite the county's policy that its providers not prepare or submit documentation in connection with patient disability applications, Dr. Mai repeatedly wrote that Plaintiff's severe mood swings between manic and depressive periods preclude full-time employment. See AR at 1153. Following a December 11, 2015 treatment visit, Dr. Mai wrote that Plaintiff's “functioning is severely compromised”; her mood visibly fluctuates between encounters; she cannot attend to “basic self-care” during depressive swings and is “extremely irritable and agitated” when manic. Id. Dr. Mai further wrote “it would not be possible for her to maintain any form of employment with the level of her mood fluctuations and functioning.” Id.

On April 6, 2017, about a month after the ALJ's decision, Dr. Mai wrote the ALJ to address his interpretation of Dr. Mai's treatment notes and opinion. See AR at 28. Dr. Mai reiterated her opinions that Plaintiff cannot work and expressed concern that the ALJ misunderstood Plaintiff's condition and the treatment reports. She further stated Plaintiff “is extremely irritable and extremely depressed most of the times” and “would not be able to meet the demands of showing up to work or having to socialize with others.” Id. Dr. Mai also invited the ALJ to contact her if additional clarification was needed.

On May 2, 2018, Dr. Mai submitted another letter; this time to Social Security's Appeals Council. AR at 11. Dr. Mai summarized her treatment since 2012 and sought to provide additional details as to her opinions of Plaintiff's work limitations. Among other things, Dr. Mai explained that during manic periods, Plaintiff presents “with expansive and agitated mood, loud, pressured speech, [and] inability to concentrate.” Id. During these periods, Plaintiff “is unable to interact with others without getting [into] verbal and physical conflicts . . . has very poor judgment and impulsivity . . . including history of physical assaults . . . getting out of car to confront others on streets due to agitation during these episodes.” Id. “During her depressive bouts, [Plaintiff] . . . has a hard time keeping up with activities of daily living, [for example is] unable to get out of bed, unable to get out ...