if “an evaluation of the 4 || record as a whole creates serious doubt that a claimant is, in fact, disabled,” a court 5 || must remand for further proceedings
How later courts described this case
- if “an evaluation of the 4 || record as a whole creates serious doubt that a claimant is, in fact, disabled,” a court 5 || must remand for further proceedings
- “[i]t is the nature 15 of bipolar disorder that symptoms wax and wane over time.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 DANIEL G.,1 Case No. 5:18-02224-GJS
12 Plaintiff
13 v. MEMORANDUM OPINION AND
ORDER
14 ANDREW M. SAUL, Commissioner
of Social Security,2
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Defendant.
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17 I. PROCEDURAL HISTORY
18 Plaintiff Daniel G. (“Plaintiff”) filed a complaint seeking review of the
19 decision of the Commissioner of Social Security denying his applications for
20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
21 [Dkt. 1.] The parties filed consents to proceed before the undersigned United States
22 Magistrate Judge [Dkts. 11 & 12] and briefs addressing disputed issues in the case
23 [Dkt. 22 (“Pl.’s Br.”), Dkt. 23 (“Def.’s Br.”) & Dkt. 24 (“Pl. Rep.”)]. The Court has
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26 1 In the interest of privacy, this Order uses only the first name and the initial of
the last name of the non-governmental party in this case.
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2 Andrew M. Saul, the Commissioner of Social Security, is substituted as
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defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).
1 taken the parties’ briefing under submission without oral argument. For the reasons
2 discussed below, the Court finds that this matter should be remanded.
3 II. ADMINISTRATIVE DECISION UNDER REVIEW
4 In April 2014, Plaintiff filed applications for DIB and SSI. [Dkt. 17,
5 Administrative Record (“AR”) 15, 286-92, 295-96.] Plaintiff alleged disability
6 commencing on January 6, 2016.3 [AR 15, 37-38.] Plaintiff’s claims for benefits
7 were denied initially and upon reconsideration. [AR 155-59, 165-69.] A hearing
8 was held before Administrative Law Judge Joseph P. Lisiecki III (“the ALJ”) on
9 September 24, 2017. [AR 36-74.]
10 On October 4, 2017, the ALJ issued an unfavorable decision applying the
11 five-step sequential evaluation process for assessing disability. [AR 15-26]; see 20
12 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). At step one, the ALJ concluded
13 that Plaintiff had not engaged in substantial gainful activity since the alleged onset
14 date of January 6, 2016. [AR 18.] At step two, the ALJ found that Plaintiff has the
15 following severe impairments: bipolar disorder; status-post right hand partial
16 amputation of the second and fifth digits; bilateral knee osteoarthritis; cervical and
17 lumbar degenerative disc disease; obesity; sleep apnea; and a history of deep vein
18 thrombosis. [Id.] At step three, the ALJ determined that Plaintiff did not have an
19 impairment or combination of impairments that meets or medically equals the
20 severity of one of the listed impairments. [Id.]; see 20 C.F.R. part 404, subpart P,
21 appendix 1. Next, the ALJ found that Plaintiff had the residual functional capacity
22 (“RFC”) for a range of medium work and was able to: lift and carry 50 pounds
23 occasionally and 25 pounds frequently; stand and walk 6 hours in an 8-hour
24 workday; sit for 6 hours in an 8-hour workday; perform postural activities
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27 3 Plaintiff initially alleged disability beginning on January 1, 2013. [AR 15, 37,
286, 295.] Plaintiff amended his alleged onset date to January 6, 2016, due to
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documentation of his drug and alcohol abuse prior to that date. [AR 15, 37-38.]
1 frequently; handle, finger, feel, and reach overhead and all other directions with the
2 right dominant upper extremity frequently; operate foot controls bilaterally
3 frequently; and interact with coworkers, supervisors, and the general public
4 occasionally. [AR 20 (citing 20 C.F.R. §§ 404.1567(c), 416.967(c)).] The ALJ
5 further found that Plaintiff was limited to performing simple and object-oriented
6 tasks and was precluded from climbing ladders, ropes, and scaffolds and performing
7 work involving dangerous moving machinery, unprotected heights, humidity,
8 wetness, dusts, odors, fumes, pulmonary irritants, and extremes in cold or heat. [AR
9 20.] At step four, the ALJ found that Plaintiff was not able to perform his past
10 relevant work as a tile setter. [AR 24.] At step five, the ALJ found that Plaintiff
11 was capable of performing other work that exists in significant numbers in the
12 economy, including the representative occupations of laundry worker, food service
13 worker, and warehouse worker. [AR 25.]
14 The Appeals Council denied review of the ALJ’s decision on August 30,
15 2018. [AR 1-3.] This action followed.
16 Plaintiff raises the following arguments: 1) the ALJ failed to properly
17 consider medical opinion evidence in assessing Plaintiff’s mental and physical
18 impairments; 2) the ALJ failed to cite sufficient reasons for rejecting Plaintiff’s
19 subjective symptom testimony; 3) the ALJ failed to properly consider third-party
20 testimony; and 4) the ALJ’s finding that Plaintiff could perform other work was not
21 supported by substantial evidence. [Pl. Br. at 3-16; Pl. Rep. at 1-5.] Plaintiff
22 requests reversal and remand for payment of benefits or, in the alternative, remand
23 for further administrative proceedings. [Pl. Br. at 17.] The Commissioner asserts
24 that the ALJ’s decision should be affirmed. [Def. Br. at 3-17.]
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26 III. GOVERNING STANDARD
27 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
28 determine if: (1) the Commissioner’s findings are supported by substantial
1 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
2 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
3 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).
4 “Substantial evidence is more than a mere scintilla but less than a preponderance; it
5 is such relevant evidence as a reasonable mind might accept as adequate to support a
6 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.
7 2014) (internal citations omitted).
8 The Court will uphold the Commissioner’s decision when the evidence is
9 susceptible to more than one rational interpretation. Molina v. Astrue, 674 F.3d
10 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated
11 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he
12 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not
13 reverse the Commissioner’s decision if it is based on harmless error, which exists if
14 the error is “inconsequential to the ultimate nondisability determination, or if despite
15 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.
16 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
17 omitted).
18 IV. DISCUSSION
19 A. Medical Opinion Evidence
20 Plaintiff contends the ALJ erred by failing to properly consider the medical
21 opinion evidence, including the opinion of his treating psychiatrist Dau Nguyen,
22 M.D. [Pl. Brief at 3-8; Pl. Rep. at 1-3.] The Court agrees.
23 “There are three types of medical opinions in social security cases: those
24 from treating physicians, examining physicians, and non-examining physicians.”
25 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); Lester v.
26 Chater, 81 F.3d 821, 830 (9th Cir. 1995). In general, a treating physician’s opinion
27 is entitled to more weight than an examining physician’s opinion and an examining
28 physician’s opinion is entitled to more weight than a nonexamining physician’s
1 opinion. See Lester, 81 F.3d at 830. “The medical opinion of a claimant’s treating
2 physician is given controlling weight so long as it is well-supported by medically
3 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
4 the other substantial evidence in [the] case record.” Trevizo v. Berryhill, 871 F.3d
5 664, 675 (9th Cir. 2017) (internal quotation marks and citation omitted).
6 An ALJ must provide “clear and convincing” reasons supported by
7 substantial evidence to reject the uncontradicted opinion of a treating or examining
8 physician. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester,
9 81 F.3d at 830-31). Where such an opinion is contradicted, however, an ALJ may
10 reject it only by stating “specific and legitimate” reasons supported by substantial
11 evidence. Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31); Trevizo, 871
12 F.3d at 675. The ALJ can satisfy this standard by “‘setting out a detailed and
13 thorough summary of the facts and conflicting clinical evidence, stating his
14 interpretation thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995,
15 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998));
16 see also 20 C.F.R. §§ 404.1527(c)(2)-(6) (when a treating physician’s opinion is not
17 given controlling weight, factors such as the nature, extent, and length of the
18 treatment relationship, the frequency of examinations, the specialization of the
19 physician, and whether the physician’s opinion is supported by and consistent with
20 the record should be considered in determining the weight to give the opinion),
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4 For claims filed on or after March 27, 2017, the opinions of treating
24 physicians are not given deference over non-treating physicians. See 20 C.F.R. §§
404.1520c (providing that the Social Security Administration “will not defer or give
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any specific evidentiary weight, including controlling weight, to any medical
26 opinion(s) or prior administrative medical finding(s), including those from your
medical sources”), 416.920c; 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016).
27 Because Plaintiff’s claim was filed before March 27, 2017, the medical evidence is
evaluated pursuant to the treating physician rule discussed above. See 20 C.F.R. §§
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404.1527, 416.927; [Def. Br. at 2 n.3.]
1 416.927(c)(2)-(6) (same).
2 Plaintiff began receiving treatment at the San Bernardino Department of
3 Behavioral Health in May 2016. [AR 1085.] Dr. Nguyen was one of Plaintiff’s
4 physicians. [AR 1062-67.] Dr. Nguyen’s records reflect that Plaintiff often had a
5 depressed and anxious mood with a constricted affect and sometimes complained of
6 sleep issues. [AR 1062-67.] In September 2017, Dr. Nguyen completed a mental
7 impairment questionnaire.5 [AR 1115-19.] He diagnosed Plaintiff with bipolar
8 disorder, unspecified and stated that Plaintiff suffers from “episodic flare ups of
9 severe depression.” [AR 1115.] Dr. Nguyen cited numerous clinical findings to
10 demonstrate the severity of Plaintiff’s mental impairment and symptoms, including
11 poor memory, somatic complaints, sleep disturbance, severe depressed mood, poor
12 ability to complete activities of daily living, anxiety, daily crying spells, episodic
13 flare ups, social isolation, poor ability to sustain concentration to complete tasks or
14 organize a plan to complete tasks, and lack of energy. [AR 1115.] Dr. Nguyen also
15 noted that Plaintiff’s psychiatric condition exacerbated Plaintiff’s pain and physical
16 symptoms, which included knee pain, sleep apnea, hypertension, deep vein
17 thrombosis (legs), pain with movement, and obesity. [AR 1117.] Dr. Nguyen
18 opined that Plaintiff had “moderate” limitations in the ability to understand,
19 remember or apply information, “marked” limitations in the ability to interact with
20 others, “marked” limitations in the ability to concentrate, persist, or maintain pace,
21 and “extreme” limitations in the ability to adapt or manage himself. [AR 1117.] Dr.
22 Nguyen further found that Plaintiff had a “[m]edically documented history of a
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5 The mental impairment questionnaire reflects that Dr. Nguyen dictated his
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responses to clinical therapist Julie Myers, Ph.D. [AR 1119.] Dr. Myers did not
26 sign the questionnaire and there is no indication in the record that she examined
Plaintiff, reviewed Plaintiff’s medical records, or expressed any opinion regarding
27 Plaintiff’s impairments. Therefore, to the extent Plaintiff may be alleging that the
ALJ improperly rejected Dr. Myer’s opinion, his claim is rejected as conclusory and
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unsupported by the record.
1 chronic organic mental … or affective disorder of at least 2 years’ duration with
2 evidence of both: [m]edical treatment [or] mental health therapy … that diminishes
3 the symptoms and signs of the mental disorder; and [m]arginal adjustment, that is,
4 … minimal capacity to adapt to changes in [ ] one’s environment or to demands that
5 are not already part of one’s daily life.” [AR 1118.] Dr. Nguyen concluded that
6 Plaintiff’s impairments or treatment would cause him to be absent from work “more
7 than four days per month” due to “episodic flare ups of severe depression and/or
8 mood lability . . . lasting 3 days to several weeks.” [AR 1118.]
9 The ALJ gave “little weight” to Dr. Nguyen’s opinion. [AR 23.] The ALJ
10 found that “the level of impairment alleged [was] not consistent with the other
11 objective medical evidence of record,” as it “[did] not match the claimant’s
12 presentation to the other treating sources.” [AR 23.] The ALJ also stated that Dr.
13 Nguyen’s assessment was inconsistent with Plaintiff’s “presentation” to his regular
14 treating physician, Dr. Gilbert Zini, which demonstrated that he was “doing well
15 psychiatrically and that the treatment [was] effective in controlling his symptoms.”
16 [AR 23, 1020-22, 1025-26.] The ALJ failed to state legitimate reasons for rejecting
17 Dr. Nguyen’s opinion.
18 First, the ALJ’s broad and conclusory statements that Dr. Nguyen’s findings
19 were “not consistent with the other objective medical evidence of record” and did
20 not “match” Plaintiff’s “presentation to the other treating sources” were not specific
21 and legitimate reason for discounting Dr. Nguyen’s opinion. See Embrey v. Bowen,
22 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that medical opinions are not
23 supported by sufficient objective findings or are contrary to the preponderant
24 conclusions mandated by the objective findings does not achieve the level of
25 specificity our prior cases have required . . . The ALJ must do more than offer his
26 conclusions. He must set forth his own interpretations and explain why they, rather
27 than the doctors’, are correct.”); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir.
28 1989) (same).
1 Second, the ALJ’s assertion that Dr. Nguyen’s opinion was inconsistent with
2 Dr. Zini’s alleged findings that Plaintiff’s symptoms were controlled with treatment
3 merely stated a conflict in the medical evidence, which triggered, rather than
4 satisfied, the ALJ’s obligation of stating specific, legitimate reasons for rejecting Dr.
5 Nguyen’s treating opinion. See Bayliss, 427 F.3d at 1216; Trevizo, 871 F.3d at 675;
6 Wood v. Colvin, No. EDCV 16-534-E, 2016 WL 5496267, at *2 (C.D. Cal. Sept. 28,
7 2016). Moreover, a review of Dr. Zini’s records shows that despite describing
8 Plaintiff as “doing well” on two occasions, Dr. Zini also reported that Plaintiff
9 experiences depression, anxiety, and chronic fatigue. [AR 1021, 1025, 1109, 1111-
10 12.] It was improper for the ALJ to rely on isolated signs of alleged improvement in
11 Dr. Zini’s records to discredit Dr. Nguyen’s opinion. See, e.g., Garrison, 759 F.3d
12 at 1017 (reasoning that the ALJ cannot rely on isolated evidence of improvement
13 when the record as a whole shows continuing cycles of debilitating and less severe
14 symptoms); Attmore v. Colvin, 827 F.3d 872, 878 (9th Cir. 2016) (“[i]t is the nature
15 of bipolar disorder that symptoms wax and wane over time.”); Scott v. Astrue, 647
16 F.3d 734, 740 (7th Cir. 2011) (“The very nature of bipolar disorder is that people
17 with the disease experience fluctuations in their symptoms, so any single notation
18 that a patient is feeling better or has had a ‘good day’ does not imply that the
19 condition has been treated.”).
20 Accordingly, the ALJ’s reasons for rejecting Dr. Nguyen’s opinion were not
21 specific and legitimate or supported by substantial evidence in the record. Remand
22 is warranted on this issue.
23 V. REMAND FOR FURTHER PROCEEDINGS
24 The Court has discretion to remand or reverse and award benefits. See
25 Trevizo, 871 F.3d at 682. Where no useful purpose would be served by further
26 proceedings and the record has been fully developed, it may be appropriate to
27 exercise this discretion to direct an immediate award of benefits. See id. at 682-83.
28 But where there are outstanding issues that must be resolved before a determination
1 || of disability can be made or it is not clear from the record that the ALJ would be
2 || required to find a claimant disabled if all the evidence were properly evaluated,
3 || remand is appropriate. See Garrison, 759 F.3d at 1021 (if “an evaluation of the
4 || record as a whole creates serious doubt that a claimant is, in fact, disabled,” a court
5 || must remand for further proceedings).
6 In this case, there are outstanding issues that must be resolved before a final
7 || determination can be made. Because the ALJ failed to provide specific and
8 || legitimate reasons for discounting Dr. Nguyen’s opinion, the record is not fully
9 || developed, Plaintiff's entitlement to benefits remains unclear, and remand for
10 || further administrative proceedings would be useful. See Garrison, 759 F.3d at
11 1020-21. On remand, the ALJ should conduct a review of the entire record in a
12 || manner that is consistent with the Court’s findings.°®
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14 IT IS ORDERED.
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16 || DATED: February 11, 2020
V7 GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
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As this matter is being remanded for further consideration of Dr. Nguyen’s
26 || opinion, the Court declines to reach the remaining issue concerning the ALJ’s
evaluation of Dr. Zini’s opinion, Plaintiff's subjective symptom testimony, third-
27 || party opinion testimony, and Plaintiff’s ability to perform other work. [Pl. Br. at 8-
28 16; Pl. Rep. at 3-5.] However, the ALJ should consider Plaintiffs additional
contentions of error when evaluating the evidence on remand.