United States District Court, E.D. California
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 ...