harmless error rule applies to non-acceptable medical source testimony
How later courts described this case
- harmless error rule applies to non-acceptable medical source testimony
- explaining that spouses are often in a position to observe a claimant’s symptoms and daily activities at home and are therefore competent to testify about a claimant’s condition
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JACK W.,1
Plaintiff, Civ. No. 3:19-cv-00507-CL
v. OPINION AND ORDER
COMMISSIONER,
SOCIAL SECURITY ADMIN.
Defendant.
_______________________________________
MARK D. CLARKE, Magistrate Judge.
Plaintiff Jack W. seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying his application for Title II Disability Insurance
Benefits (“DIB”) and, in part, his application for Title XVI Supplemental Security Income (“SSI”)
pursuant to 42 U.S.C. §§ 1381a and 1382c(a)(3)(A). For the reasons discussed below, the
Commissioner’s decision is REVERSED and REMANDED for immediate payment of benefits.
1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last
name of the non-governmental party or parties in this case.
BACKGROUND AND PROCEDURAL HISTORY2
Plaintiff was born in May 1959. Tr. 162, 165. Plaintiff was partially awarded SSI benefits
in a February 5, 2019 ALJ decision, with a disability onset date of January 1, 2013. Tr. 1589-1609.
However, the ALJ denied Plaintiff’s DIB claim, finding that he was not disabled between the
alleged onset date of August 17, 2006 and September 30, 2008, the date last insured. Tr. 1609.
Plaintiff appeals to this court seeking a determination that the Social Security Administration
erroneously determined he has not been disabled from his alleged onset date of August 17, 2006
through December 31, 2012, the day prior to the date of commencement of his partial SSI award.
Pl.’s Br. 4; Def.’s Br. 2. To qualify for DIB benefits, Plaintiff must establish that he was disabled
under the Act between the alleged onset date of August 17, 2006 through September 30, 2008.
Plaintiff was adjudged to have the following severe impairments prior to the adjudged January 1,
2013 onset of disability: “degenerative disc disease of the lumbar spine status post laminectomy
in 2007; bipolar disorder versus a depressive disorder versus a mood disorder; a personality
disorder, NOS [not otherwise specified]; marijuana abuse; methamphetamine use; diabetes
mellitus and a left shoulder condition.” Tr. 1592. The ALJ determined “neuropathy” was an
additional severe impairment as of the disability onset date, which qualified Plaintiff for SSI. Tr.
1592-93. Plaintiff alleges that the ALJ’s RFC formulation for the period prior to January 1, 2013
failed to encompass the severity of his bipolar disorder, anxiety, posttraumatic stress disorder
(“PTSD”), and personality disorder NOS, constituting legal error. Pl.’s Br. 6.
///
///
2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record
filed herein.
PROCEDURAL BACKGROUND
This case has a very complex procedural history, and because much of that history is not
relevant to the issues now before the Court, the Court opts not to recount it in full.3 Plaintiff
originally filed claims for DIB and SSI alleging a disability onset date of August 17, 2006. Tr.
162-72. As noted above, Plaintiff’s date last insured for purposes of the DIB claim was September
30, 2008. Briefly, the original claims were rejected following a hearing and ALJ decision of
January 19, 2010. Tr. 27-46. Following multiple appeals to the Appeals Council and this federal
court, Plaintiff eventually was adjudged disabled in a Partially Favorable decision dated February
5, 2019, awarding SSI beginning on January 1, 2013, but denying the SSI claim in part and the
DIB claim in full. Tr. 1585-1621. Plaintiff now appeals to this Court, seeking DIB and SSI benefits
beginning on the alleged onset date of August 17, 2006. As such, the parties agree the relevant
period in this matter is between August 17, 2006 and December 31, 2012. Pl.’s Br. 4; Def.’s Br. 2.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm’r.
Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R.
§§ 404.1520(a)(4), 426.920(a)(4). The five-step sequential process asks the following series of
questions:
1. Is the claimant performing “substantial gainful activity” (SGA)? 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
3 See Pl.’s Br. 4-5 for a more detailed summary.
significant mental or physical duties done or intended to be done for pay or
profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least 12 months. 20
C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3. Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then
the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the “residual functional
capacity” (“RFC”) assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s RFC. This is an assessment of work-
related activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the
analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” (“PRW”) with this
RFC assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his
or her PRW, the analysis proceeds to step five.
5. Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c), 416.920(a)(4)(v),
416.960(c). If the claimant cannot perform such work, he or she is disabled.
Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner
must show that the claimant can perform other work that exists in significant numbers in the
national economy, “taking into consideration the claimant’s residual functional capacity, age,
education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal
citations omitted); see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the
national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the
claimant is able to perform other work existing in significant numbers in the national economy,
the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
THE ALJ’S FINDINGS
Applying the above analysis, the ALJ made the following findings in the February 5, 2019
decision:
1. The claimant meets the insured status requirements of the Social Security Act through
September 30, 2008. Tr. 1592.
2. The claimant has not engaged in SGA since the alleged onset date. Id.
3. Since the alleged onset of disability, August 17, 2006, the claimant has had the
following severe impairments: degenerative disc disease of the lumbar spine status post
laminectomy in 2007; a bipolar disorder versus a depressive disorder versus a mood
disorder; a personality disorder, NOS; marijuana abuse; methamphetamine use;
diabetes mellitus; and a left shoulder condition. Beginning on the established onset date
of disability, January 1, 2013, the claimant has had the following severe impairments:
neuropathy. Tr. 1592-93.
4. Since August 17, 2006, the claimant has not had an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix I. Tr. 1593.
5. Prior to January 1, 2013, claimant has had the RFC to perform light work with the
following limitations:
“[T]he claimant could occasionally climb ramps and stairs but never climb ladders,
ropes or scaffolds. The claimant could occasionally perform all other postural activities
(balance, stoop, kneel, crouch, and crawl). The claimant could frequently reach
overhead bilaterally. The claimant could perform work involving simple routine tasks
with no public contact and only occasional superficial interaction with coworkers and
could have occasional interaction with supervisors.” Tr. 1595.
6. Beginning on January 1, 2013, the claimant has the RFC to perform light work with
the following limitations:
“[T]he claimant could occasionally climb ropes and stairs but never climb ladders,
ropes or scaffolds. The claimant could occasionally perform all other postural activities
(balance, stoop, kneel, crouch, and crawl). The claimant could perform work involving
simple routine tasks with no public contact and only occasional superficial interaction
with coworkers and could have occasional interaction with supervisors. The claimant
would be off-task 20% of the time of the workday or absent two or more days per
month.” Tr. 1604.
7. Since August 17, 2006, the claimant has been unable to perform any past relevant work.
Tr. 1607.
8. Prior to the established disability onset date, the claimant was an individual closely
approaching advanced age. The claimant’s age category has not changed since the
established disability onset date. Id.
9. The claimant has at least a high school education and is able to communicate in English.
Id.
10. Prior to January 1, 2013, transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has transferable
job skills. Beginning on January 1, 2013, the claimant has not been able to transfer job
skills to other occupations. Id.
11. Prior to January 1, 2013, considering the claimant’s age, education, work experience,
and residual functional capacity, there were jobs that existed in significant numbers in
the national economy that the claimant could have performed. [Including Photocopying
Machine Operator; Assembler, Small Products I; and Electronic Assembler.] Tr. 1607-
08.
12. Beginning on January 1, 2013, considering the claimant’s age, education, work
experience, and residual functional capacity, there are no jobs that exist in significant
numbers in the national economy that the claimant can perform. Tr. 1608.
13. The claimant was not disabled prior to January 1, 2013, but became disabled on that
date and has continued to be disabled through December 16, 2014. Tr. 1609.
14. The claimant was not under a disability within the meaning of the Social Security Act
at any time through September 30, 2008, the date last insured. Id.
15. The claimant’s substance use disorder(s) is not a contributing factor material to the
determination of disability. Id.
See Tr. 1592-1609 (citation to statutes, regulations, and rules omitted).
Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social
Security Act prior to January 1, 2013 but was disabled as of that date, through December 16, 2014.4
Tr. 1609; see Pl.’s Br. 4.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘“Substantial evidence’ means ‘more than
a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this Court must weigh “both the
evidence that supports and detracts from the [Commissioner’s] conclusions.” Martinez v. Heckler,
4 Plaintiff filed a subsequent application for SSI on December 16, 2014, and eventually was
found disabled as of that date. See Tr. 1589.
807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the
Commissioner’s interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at
1041). “However, a reviewing court must consider the entire record as a whole and may not affirm
simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing
court “cannot affirm the [Commissioner’s] decision on a ground that the [Administration] did not
invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.
2006) (citations omitted). Finally, a court may not reverse an ALJ’s decision on account of an error
that is harmless. Id. at 1055-56. “[T]he burden of showing that an error is harmful normally falls
upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409
(2009).
Even where findings are supported by substantial evidence, “the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C.
§ 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a
judgment affirming, modifying, or reversing the decision of the Commissioner, with or without
remanding the case for a rehearing.
DISCUSSION
Plaintiff presents the following issues on appeal:
1. Did the ALJ properly evaluate the medical source opinions of record?
2. Did the ALJ properly determine neuropathy was non-severe prior to January 1, 2013
and that it did not meet a listing?
3. Did the ALJ properly evaluate the subjective symptom testimony of record?
4. Did the ALJ properly evaluate the lay witness statements of record?
5. Was the RFC for the period prior to January 1, 2013 supported by substantial evidence
and include all the relevant functional limitations, and consequently, were the
hypothetical questions to the VE and the resultant step five finding proper?
For the following reasons, I find the ALJ improperly evaluated the record evidence and
provided legally insufficient reasons support key findings. The ALJ’s decision is, therefore,
reversed. The discussion issues that follow pertain to the period from the alleged onset date
through December 31, 2012.
I. Medical Opinion Evidence
Plaintiff contends the ALJ failed to properly evaluate the medical source opinions of the
following individuals: Scott Alvord, Psy.D.; Joseph Eisenberg, M.D.; Isabel Toledo-Silvestre,
PMHNP; Thomas Dodson, M.D.; John Adler, M.D.; Caleb Burns, Ph.D.; James Powell, Psy.D.;
Sara Knepper, QMHP.
An ALJ must consider the acceptable medical source opinions of record and assign weight
to each. 20 C.F.R. §§ 404.1527(c), 416.927(c). In this respect, an ALJ is responsible for resolving
conflicts and ambiguities in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). To reject the contradicted opinion of a treating or examining physician, the ALJ must
provide specific and legitimate reasons for doing so. Lester v. Chater, 81 F.3d 821, 830-31 (9th
Cir. 1995). The opinion of a non-examining medical consultant alone does not constitute
substantial evidence sufficient to reject the opinion of a treating or examining physician. Morgan
v. Commissioner of Social Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). “An ALJ can satisfy
the substantial evidence requirement by setting out a detailed and thorough summary of the facts
and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Garrison
v. Colvin, 759 F.3d at 995, 1012 (9th Cir. 2014) (citing Reddick, 157 F.3d at 725).
An ALJ may discount an otherwise valid medical source opinion for a variety of reasons,
such as if it is overly conclusory, poorly supported by or inconsistent with the objective medical
record, or inordinately reliant on a claimant’s self-reported symptoms, particularly where the ALJ
provides clear and convincing reasons to discredit the symptom allegations. See, e.g., Coleman v.
Saul, 979 F.3d 751, 757-58 (9th Cir. 2020). However—and particularly relevant to this matter—
rejecting the medical opinion of a treating or examining mental health provider because the opinion
relies on the claimant’s subjective symptom reports is perilous business. The Ninth Circuit has
stressed that,
[t]he report of a psychiatrist should not be rejected simply because of the relative
imprecision of the psychiatric methodology . . . [p]sychiatric evaluations may
appear subjective, especially compared to evaluation in other medical fields.
Diagnosis will always depend in part on the patient’s self-report, as well as on the
clinician’s observations of the patient. But such is the nature of psychiatry. Thus,
allowing an ALJ to reject opinions based on self-reports does not apply in the same
manner to opinions regarding mental illness.
Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (internal citations omitted); see, e.g.,
Raicevic v. Saul, --- F. App’x ----, 2021 WL 581351 (9th Cir. Feb. 11, 2021) (“[C]linical interviews
and mental status evaluations “are objective” measures” that “cannot be discounted as a ‘self-
report.’”) (quoting id.).
A. Scott Alvord, Psy.D.
Dr. Alvord examined Plaintiff on three occasions: twice in May 2013, and once in
November of the same year, and produced a comprehensive psychological evaluation. See Tr.
1408-17. Dr. Alvord’s report was based on a clinical interview, a mental status examination, a
review of numerous medical records and medical opinions, and a battery of standard psychological
tests. Tr. 1408-09. Dr. Alvord found noteworthy Plaintiff’s disheveled appearance at the first two
examinations, in addition to visible signs of depression including tearful affect. Tr. 1411. Although
Plaintiff was “generally pleasant and cooperative,” the doctor found developing a rapport required
“some difficulty,” and Plaintiff “frequently responded to [his] questions with mild irritability, at
times agitation.” Tr. 1412. At the third encounter, the doctor found Plaintiff to be “acutely manic,”
as he “spoke in a rapid, rambling, tangential manner and was quite animated, both regarding the
volume and prosody of his voice, as well as his physical movements.” The doctor “had to instruct
him at least two times to ‘sit down and relax’ before we were able to do testing. He was quite
agitated.” Id. Thereafter, Plaintiff’s “mood was noted to shift rapidly, becoming quite tearful[.]”
Id. Plaintiff’s thought content was “inconsistent,” fluctuating between intact and “jump[ing] from
topic to topic and [] very difficult to redirect.” Tr. 1412-13. “Insight into the nature of his condition
was considered impaired.” Id.
Based on the clinical interview, review of the medical record, and psychological testing,
Dr. Alvord determined plaintiff to be “suffering from an unfortunate combination of chronic
bipolar disorder, PTSD, as well as suspected cognitive disorder.” Tr. 1414. The doctor supported
his diagnoses with relatively lengthy and thorough explanations. Tr. 1414-16. Notably, Dr. Alvord
opined that Plaintiff’s “ability to function in an occupational setting is considered profoundly
limited . . . I do not believe he will be capable of even very simple/repetitive work . . . given
inconsistencies of functioning related to chronic Bipolar disorder as well as his tendency to over-
react/become aggressive/irritable/angry related to PTSD.” Tr. 1415-16. Plaintiff’s work history
“[wa]s judged diagnostic of a history of PTSD and Bipolar Disorder.” Tr. 1416. His “overall
adaptive abilities are judged to fall in the severe range of impairment . . . [h]is prognosis,
unfortunately, is poor.” Id.
The ALJ provided a summary of Dr. Alvord’s examinations and conclusions. Tr. 1602-03.
Ultimately, the ALJ accorded “very little weight” to the medical opinion. Tr. 1603. In support of
his finding, the ALJ identified the following rationales: Plaintiff’s dishonesty with the doctor
regarding his drug use and criminal history, and back pain reports inconsistent with other medical
evidence, and general overreliance on Plaintiff’s subjective symptom reports. Id.
The ALJ’s evaluation of Dr. Alvord’s report is erroneous on several fronts. With regards
to Plaintiff’s dishonesty, the doctor addressed Plaintiff’s marijuana use, noting that although
Plaintiff denied contemporaneous use of the drug, his extended abstinence “suggests that his
cognitive issues are chronic . . . [and] reflect multiple etiologies including probably TBI [traumatic
brain injury], severe anxiety and depression, as well as disorganized thought processes related to
episodes of mania.” Tr. 1416. Although the ALJ appeared to imply that Plaintiff’s manic affect
and behavior at the third examination may have been related to unreported methamphetamine use,
the finding is inconsistent with the ALJ’s finding that drug use is not material to the issue of
disability in this case. Tr. 1609. Further, the ALJ found Plaintiff suffers from “a bipolar disorder
versus depressive disorder versus a mood disorder.” Tr. 1592. Moreover, Plaintiff’s manic bipolar
signs and symptoms were documented on several occasions by his treating physician, Dr.
Eisenberg, corroborating Dr. Alvord’s assessment. See Tr. 1429, 1432, 1438, 1448, 1583. Dr.
Eisenberg’s diagnoses of Bipolar Disorder I and PTSD were rendered with the knowledge of
Plaintiff’s history of marijuana and methamphetamine use, and concluded the symptoms he
observed were “not substance induced,” and he was “largely compliant” with his prescribed
medication regimen, and Dr. Eisenberg also noted “[n]o appreciable change in his mood or affect
. . . during his prolonged period of abstinence” during 2009-10. Tr. 1583. For these reasons, the
ALJ’s rationale is erroneous considering the record as a whole.
The fact that a claimant has a criminal history is immaterial to the disability determination.
Moreover, the fact that Plaintiff was not forthcoming about his criminal history is also immaterial,
as an ALJ may not utilize a claimant’s character or truthfulness in rejecting symptom allegations.
See Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *11 (Oct. 25, 2017) (“our
adjudicators will not assess an individual’s overall character or truthfulness in the manner typically
used during an adversarial court litigation”). For this reason, any inconsistent statements Plaintiff
made about the frequency of his back pain is also erroneous—not to mention the fact that Dr.
Alvord’s opinions were based on Plaintiff’s mental impairments rather than his physical
impairments. In short, the ALJ’s rationales on these issues are clearly erroneous.
Finally, as explained in the above discussion of Buck, the ALJ improperly rejected Dr.
Alvord’s opinion because it was based on Plaintiff’s “subjective” symptoms. In the context of
clinical psychology, such self-reports are generally considered probative evidence, and the error is
particularly egregious here, where not only did Dr. Alvord consider Plaintiff’s complaints, but also
his work history, the doctor’s own clinical observations on three separate occasions, and valid
psychological testing. See Buck, 869 F.3d at 1049. Adding insult to the ALJ’s injury, Dr. Alvord
provided unusually thorough explanations for his diagnoses and medical findings.
The Commissioner argues that because Dr. Alvord’s opinion was rendered after the period
at issue in the instant matter, any ALJ errors are harmless. This argument is unpersuasive
considering that Dr. Alvord explicitly determined Plaintiff’s mental impairments were chronic in
nature and consistent with his work history and medical evidence predating 2008—and in fact
finding them “diagnostic of a history of PTSD and Bipolar Disorder.” See Tr. 1408-09, 1415-16.
The Commissioner’s remaining arguments are equally unpersuasive based on the discussion
above.
In all, the ALJ’s decision to give Dr. Alvord’s medical opinion “very little weight” is
woefully inconsistent with well-established Ninth Circuit precedent and is demonstrably
unsupported by substantial evidence.
B. Joseph Eisenberg, M.D.
Plaintiff’s treating physician, Dr. Eisenberg, provided a letter in support of Plaintiff’s
disability claim, dated November 22, 2013. Tr. 1583-84. He indicated he had treated Plaintiff for
two years (beginning some time in 2011) and had “gotten to know [Plaintiff] well.” Tr. 1583. He
stated that although he is skeptical of many of his patients who claim to be disabled, such was not
the case with Plaintiff’s claim. Id. The doctor stated that Plaintiff is disabled based on his mental
impairments alone. Id.
Dr. Eisenberg diagnosed Bipolar Disorder I and PTSD. Id. The doctor recounted associated
symptoms including irritability, anger, anxiousness, depression, and mania; and that regardless of
whether Plaintiff’s mood was “up or down,” it was “never normal.” Id. As noted supra, Dr.
Eisenberg acknowledged his awareness of Plaintiff’s occasional methamphetamine use but
explained that Plaintiff’s objective drug tests during 2009-10 were normal, and moreover, that
Plaintiff’s outward symptoms remained abnormal even during the period of known sobriety. Id.
Dr. Eisenberg therefore opined that the symptoms “are not substance induced.” Id. The doctor also
outlined Plaintiff’s physical impairments as regards to diabetes (which is poorly controlled in part
due to mental impairment), prostate problems, Hepatitis C, and musculoskeletal problems. Tr.
1583-84. The doctor opined that it would be “doubtful” Plaintiff could work around others, and
that “his problems have been of a longstanding nature,” and disabling prior to September 30, 2008.
Tr. 1584.
The ALJ assigned “little weight” to Dr. Eisenberg’s opinion “because it appears to largely
be based on the claimant’s self-reports and behavior,” and due to inconsistencies in Plaintiff’s
symptom reporting, the self-reports are unreliable. Tr. 1603. As Plaintiff’s treating physician, Dr.
Eisenberg’s opinion ought to be accorded the greatest weight by default but may be rejected for
specific and legitimate reasons in favor of a contradictory medical opinion. Lester, 81 F.3d at 830-
31. For the same reasons the ALJ erred in rejecting Dr. Alvord’s assessments of Plaintiff’s mental
impairments, rejecting Dr. Eisenberg’s mental health assessment, which is predicated on not only
treatment over time, but the doctor’s own observations in conjunction with objective drug testing,
the ALJ erred under Buck. Indeed, it is absurd to discount the doctor’s opinion based on Plaintiff’s
“behavior,” which is highly probative in the context of mental health assessment. Buck, 869 F.3d
at 1049. Further, while inconsistencies in symptom allegations is generally a valid reason to
discount a Plaintiff’s complaints, the ALJ failed to identify those inconsistencies aside from the
general assertion of inconsistency, and moreover, it is clear that bipolar disorder produces a range
of symptoms which may appear contradictory, such as manic highs and depressive lows, which
are completely consistent with the condition itself. In short, the ALJ’s conclusion fails to meet the
specific-and-legitimate standard, if it can be said to be rational at all.
The Commissioner argues Dr. Eisenberg’s opinion is minimally probative because the
doctor primarily treated Plaintiff’s physical conditions and did not record observations of mania
in his chart notes. Def.’s Br. 5-6. There are at least two problems with the argument. First, the ALJ
did not invoke inconsistency with the medical record as a rationale to reject the opinion. Second,
the ALJ did not suggest the opinion was minimally probative because Dr. Eisenberg primarily
treated physical ailments. Both are impermissible post hoc rationalizations for which the Court
may not affirm the non-disability decision. Bray, 554 F.3d at 1225-26 (citation omitted). The ALJ
erred.
C. Isabel Toledo-Silvestre, PMHNP
Psychiatric mental health nurse practitioner Toledo-Silvestre provided her medical opinion
in a three-page functional assessment worksheet dated September 29, 2010. Tr. 788-90. She
identified several areas where Plaintiff has “marked” or “extreme” limitations, including: (1)
ability to understand short and simple instructions; (2) ability to carry out detailed instructions; (3)
ability to maintain attention and concentration; (4) ability to maintain acceptable attendance and
punctuality; (5) ability to sustain an ordinary work routine without special supervision; (6) ability
to work with others without distraction; (7) ability to work without interference from mental
symptoms requiring extra breaks; (8) ability to interact appropriately with the public; (9) ability to
interact appropriately with supervisors; (10) ability to get along with coworkers; (11) ability to
meet socially-acceptable standards of neatness and cleanliness; (12) ability to respond to changes
in the workplace; (13) ability to travel to unfamiliar locations or use public transportation; (14)
ability to set realistic goals and make plans independently; (15) maintaining acceptable social
functioning; and (16) maintaining acceptable concentration, persistence, or pace. Id. Other areas
were rated as “moderate,” and none were rated as insignificant or mild. See id. The PMHNP also
indicated Plaintiff would have for or more episodes of decompensation of extended duration. Tr.
790. She explained the bases for her assessments were Plaintiff’s struggles with bipolar disorder
and depression, suicidal ideation and suicide attempts, resulting in the inability to control emotions
at a level acceptable for maintaining employment. Id. She indicated her opinion applied to the time
she began treating him in January 2010, at minimum. Id.
The ALJ accorded “little weight” to Ms. Toledo-Silvestre’s opinion. Tr. 1602. Once again,
the ALJ cited overreliance on subjective symptom reports “and behavior,” as well as “inconsistent
statements about drug use.” Id. The ALJ also cited inconsistencies in the PMHNP’s treatment notes
after 2010, such as euthymic mood, cooperative presentation, and tests reflecting “good cognitive
abilities.” Id. The ALJ also discounted her opinion regarding four episodes of decompensation,
because evidence reflected “only one brief psychiatric hospitalization.” Id.
For the same reasons described above as pertaining to Drs. Alvord and Eisenberg, the
ALJ’s first three rationales—subjective symptom reports and inconsistent reports about drug use—
are invalid considering the overall medical record in this case. Supra. As for the ALJ’s finding that
the medical opinion is inconsistent with Ms. Toledo-Silvestre’s clinical observations of euthymic
mood, cooperative demeanor, and cognitive abilities, her chart notes and other contemporaneous
clinical observations by other providers reflect significant mental health symptoms relative to his
bipolar disorder and PTSD diagnoses, although not at every visit. For example, in April 2013 his
mood was worse albeit in the absence of medication (Tr. 1443), and his mood was improved but
notably anxious in March 2013 (Tr. 1447). In January and February 2013, he was able to stay
focused at his appointment to discuss his continued problems managing his diabetes medications.
Tr. 1450-51. His mood was “anxious but improved” in late December 2012, but he had “a very
hard” time focusing earlier in the month. Tr. 1454, 1456. Plaintiff’s mood and affect was
“depressed vs. agitated” in the previous month, November 2012. Tr. 1458. On the other hand, Ms.
Toledo-Silvestre observed him to be “[c]lear, logical, [and] coherent” in February 2011, and she
felt his mental impairments were “OK,” consistent with the ALJ’s finding that her notes record
minimal mental health symptoms at times. Tr. 1488. Plaintiff also demonstrated mild symptoms
in December 2010, although Ms. Toledo-Silvestre feared he could slip into severe depression
without medications. Tr. 1489. Still, in the previous month—November 2010—he was observed
to be talkative to the extent Ms. Toledo-Silvestre suspected mania, and Plaintiff cried easily. Tr.
1491-92. He continued to be diagnosed with bipolar disorder and PTSD throughout the period
described.
In the assessing the severity of mental health impairments, it is inappropriate for an ALJ to
discount a claimant’s occasional periods of improvement despite a medical record that reflects
waxing and waning of symptoms, especially in the context of bipolar disorder, where one of the
characteristics of the condition is in fact waxing and waning symptoms and functionality. See
Garrison, 759 F.3d at 1017-18. The principle articulated in Garrison is certainly relevant here,
particularly considering the relatively mountainous medical opinion evidence depicting persistent
limitation far beyond the RFC as formulated, despite occasions of diminished symptoms.
Moreover, although Plaintiff showed improvement on some occasions following Ms. Toledo-
Silvestre’s September 2010 medical assessment, the evidence certainly does not reflect a trend of
improvement over time.
Plaintiff also argues that the ALJ erred in rejecting Ms. Toledo-Silvestre’s assessment of
four episodes of decompensation. See Tr. 790. In support, Plaintiff points to episodes of extreme
functional limitation, in addition to his hospitalization in 2009. For example, treating physician
Thomas Dodson, M.D., explained in July 2009 that Plaintiff’s behavior “was dangerous prior to
admission,” including suicidal thoughts and “several recent episodes in which he drove his car at
high speed on the highway,” in excess of 100 miles per hour. Tr. 690; see also Tr. 781. Months
later, in February 2010, he was noted to be “on the high risk [suicidal ideation] list,” which he was
placed on in the previous month by Ms. Toledo-Silvestre. Tr. 748, 778. In all, although Plaintiff
may have had only psychiatric admission in the relevant time period of treatment with the PMNHP,
he was regularly noted to have extreme symptoms at times, and chronic suicidal ideation. Thus,
although he may not have had repeated episodes of decompensation as it is understood under the
Act, the term of art is not defined in the worksheet Ms. Toledo-Silvestre completed. On balance,
although the ALJ was not wrong to find that her assessment of four episodes of decompensation
as defined under the Act was not fully supported by the record, such does not negate the other
symptoms and limitations Ms. Toledo-Silvestre set forth in her 2010 opinion. The ALJ’s decision
to accord little weight to her opinion overall is erroneous.
D. Thomas Dodson, M.D.
Treating physician Dr. Dodson provided a letter in support of Plaintiff’s applications on
November 24, 2009. Tr. 723. He indicated Plaintiff suffered from “severe bipolar disorder and
also has a personality disorder diagnosis.” Id. The doctor noted symptoms including incoherence
at times, digressive speech, restricted affect, suicidal thinking, and mildly to moderately impaired
judgment, irritability, racing thoughts, and dangerous behavior such as excessive speeding. Id. He
noted Plaintiff “made veiled threats to others.” Id. The doctor concluded that Plaintiff “does require
regular psychiatric treatment and likely will need to continue that for the duration of his life,
because of the severity and chronicity of his psychiatric condition.” Id.
The ALJ purported to give Dr. Dodson’s opinion “significant weight,” and determined the
opinion required limitations in the RFC including no public contact and only occasional contact
with coworkers and supervisors, and limitations to simple and routine work based on his racing
thoughts. Tr. 1601. Plaintiff argues the ALJ failed to account for limitations due to deficits in
concentration, absenteeism due to isolative behavior, anger, irritability, and defensiveness toward
everyone around him. Pl.’s Br. 20. However, as the Commissioner accurately observes, the ALJ
did not reject any of Dr. Dodson’s conclusions. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1223 (9th Cir. 2010). As such, Plaintiff does not identify any specific error in the ALJ’s assessment
of Dr. Dodson’s opinion.
E. John Adler, Ph.D.
Dr. Adler provided psychological evaluations dated June 1, 2007, and April 24, 2008. Tr.
371-73. At the 2007 evaluation, the doctor diagnosed depression and rule out personality disorder
NOS. Tr. 373. Plaintiff was “generally pleasant” and cooperative. Tr. 372. He was also noted to
have problems focusing and was a poor historian. Id. The doctor noted depressed affect and that
Plaintiff was easily frustrated. Id. Dr. Adler concluded that Plaintiff would be limited by depression
and irritability, and to a lesser extent, concentration. Tr. 373. He did not have “clear symptoms of
bipolar disorder, but his depression, irritability, and negativity appeared to be longstanding issues.
Id.
In 2008, Dr. Adler diagnosed the following mental impairments: dysthymic disorder, rule
out learning disorder NOS, and personality disorder NOS with antisocial features. Tr. 654. Plaintiff
reported to Dr. Adler in 2008 that he had previously walked off jobs and scared family members
with his angry behaviors. Id. Plaintiff also reported legal problems including a recent arrest and
upcoming trial. Tr. 655. Dr. Adler noted that Plaintiff was unspecific or sidetracked in describing
his daily activities and “became quite irritated.” Id.
Dr. Adler observed that although Plaintiff was generally cooperative, he was “not
necessarily pleasant,” and was at times angry, agitated, and uncooperative. Id. Plaintiff appeared
depressed, negative, bitter, and angry. Id. He was noted to have coherent speech, but rambled and
overshared or discussed off-topic details. Id. Dr. Adler did not detect delusions, hallucinations, or
suicidal ideation. Overall, Dr. Adler opined Plaintiff has mood and behavior problems, depression
and irritability, and chronic social and anger problems. Id. As noted above, the doctor did not feel
bipolar and manic depression were “quite consistent for him.” Id. Although Plaintiff did not show
signs of “major” mental impairments, he was noted as having problems coping with stress and
responding to authority figures. Id. Plaintiff could follow simple instructions and complete simple
tasks. Id.
The ALJ gave “some weight” to Dr. Adler’s 2007 and 2008 evaluations. Tr. 1598. The ALJ
indicated the doctor’s diagnoses were consistent with the medical evidence as whole. Id. Plaintiff
argues the ALJ did not include all of Dr. Adler’s assessed limitations, including his difficulty
coping with workplace stressors and responding to authority figures, and that Plaintiff would
require one year of treatment before returning to work. Pl.’s Br. 21.
As was the case with the ALJ’s treatment of Dr. Dodson’s medical opinion, it is not clear
that the ALJ erred in assessing Dr. Adler’s evaluations. Although the doctor suggested Plaintiff
would have difficulty with coping with stress, he did not say Plaintiff was unable to do so, and the
RFC reflects a limitation to simple, routine work, which presumably would not be as stressful as
more complex or unpredictable responsibilities. Similarly, although Dr. Adler indicated he would
have difficulty interacting with supervisors, the ALJ included a limitation to only occasional
contact with supervisors and coworkers, and precluded contact with the public. And again, the ALJ
did not clearly reject any of Dr. Adler’s conclusions. See Turner, 613 F.3d at 1223. For these
reasons, the Court must defer to the ALJ’s interpretation of the evidence, as it is neither irrational
nor unsupported by the record. Burch, 400 F.3d at 679.
F. Caleb Burns, Ph.D.
Dr. Burns examined Plaintiff in an October 30, 2009 psycho-diagnostic evaluation, which
included a series of mental health tests. Tr. 1351-60. Dr. Burns ultimately diagnosed moderate
major depressive disorder with thought disorder symptoms; bipolar I disorder, unspecified, “now
reasonably well controlled with medication”; panic disorder with agoraphobia; and meth abuse in
remission. Tr. 1359. Dr. Burns felt Plaintiff’s interview was “reasonably consistent” with the
medical records he reviewed, but noted Plaintiff was a poor historian at times because of his
frustration. Tr. 1351. Plaintiff reported that he was committed to a psychiatric unit following a
suicide attempt where he tried to drive into a tree or telephone pole. Tr. 1353. Plaintiff also reported
that his psychiatric medications were helpful, “but I still don’t like leaving the house without my
mother or brother.” Tr. 1354. He also reported past methamphetamine use but stated he had not
used for years. Id.
Plaintiff described significant financial problems, and reliance on his mother in that area.
Tr. 1355-56. For instance, he stated he liked to bowl, but could not afford it anymore. Tr. 1356.
Plaintiff explained that on a typical day, he washes dishes, does some laundry, and reads. Id. He
endorsed difficulty falling asleep, nightmares, and “hearing voices” at night. Tr. 1356-57.
Dr. Burns observed Plaintiff to be “quite gaze avoidant,” and his energy level varied with
his emotions during the interview. Tr. 1358. He had pressured speech and was noted to be in
“substantial distress” on intake. Id. The doctor also noted depressed and limited affect and gave
the impression of helplessness. Id. His attention and concentration were affected by emotionalism.
Id. Dr. Burns opined Plaintiff’s insight and judgment were “somewhat impaired.” Id. Dr. Burns
concluded that Plaintiff’s bipolar disorder was reasonably well treated, he was emotionally volatile
and quite depressed. Tr. 1359. The doctor also indicated that Plaintiff’s depression “makes it very
difficult for him to interact with others, [and] to maintain emotional stability[.]” Id.
The ALJ accorded “some weight” to Dr. Burns’ evaluation. Tr. 1601. The ALJ found the
opinion consistent with Plaintiff’s medical history but rejected the doctor’s opinion “regarding
[Plaintiff’s] emotional stability because it appears to be based on the claimant’s self-report,” which
was “inconsistent with a mental status examination showing the claimant as cooperative with the
consultative examiner.” Tr. 1601. The rationale is clearly erroneous. Dr. Burns personally
observed Plaintiff’s behavior, and explained that although he was cooperative, he was unusually
gaze avoidant, had pressured speech, was in “substantial distress” at intake, had a depressed and
limited affect,” had impaired judgment, and was demonstrably emotionally volatile. Supra. Under
Buck, it was clear error to reject the doctor’s clinical observations.
G. James Powell, Psy.D.
Plaintiff had yet another psychological examination in November 2011, this time with
James Powell, Ph.D. Tr. 1361-67. Dr. Powell ultimately diagnosed mood disorder NOS and noted
“occupational difficulties.” Tr. 1365. Dr. Powell observed that Plaintiff “did appear to be generally
quite angry and did show a tendency to externalize blame for difficulties.” Tr. 1366. Dr. Powell
did not feel Plaintiff was a danger to himself or others despite reported suicidal ideation. Id. The
doctor did suggest a moderate level of impairment in socialization and social support and that
Plaintiff would likely have difficulty establishing healthy relationships in the future. The doctor
also assessed mild impairment in sustained concentration, persistence, and pace; and moderate
impairment in managing daily activities. Id. Dr. Powell explained that anger and irritability would
present a challenge if Plaintiff were to pursue employment and would require a year of vocational
rehabilitation to be successful. Tr. 1366-67. Regardless, the doctor indicated “prognosis for him
being able to be employed and support himself in the future is considered to be good at this time,”
but would depend on Plaintiff’s decision to work at it, and he might be able to find work “in his
area of skills.” Tr. 1367.
The ALJ gave “little weight” to Dr. Powell’s opinion. As is the case in the ALJ’s erroneous
discrediting of several other medical opinions above, the ALJ rejected Dr. Powell’s as overly
reliant on Plaintiff’s subjective symptom reports and inconsistent with “cooperative” behavior
during the examination. It appears the ALJ’s focus in rejecting Dr. Powell’s opinion was the
doctor’s assertion that Plaintiff would require a year of vocational rehabilitation before he would
be able to perform adequately in a work setting. But, for the reasons stated supra, neither of the
rationales offered by the ALJ are legally sufficient under Buck. The finding is erroneous.
H. Sharon Knepper, QMHP
Qualified Mental Health Provider Sharon Knepper signed on December 13, 2016 a written
statement authored by Plaintiff’s attorney. Tr. 3236-37. The letter purports to be a summary of a
phone conversation between Plaintiff’s attorney and Ms. Knepper, and Ms. Knepper’s signature
appears to indicate that the contents of the letter accurately reflect her opinion as to Plaintiff’s
impairments. The letter states that Ms. Knepper had been treating Plaintiff for nearly two years for
bipolar disorder and PTSD, and despite his intermittent marijuana use, his mental health symptoms
remained significant even when he was abstaining from drug use. Tr. 3236. Ms. Knepper endorsed
the statement that Plaintiff is a poor historian and it is difficult to understand whether he is referring
to the past or the present when he relates his thoughts. Id. She indicated Plaintiff is prone to
irritability and ranting, and he often does not have a clear perception of reality. Tr. 3237. She also
indicated Plaintiff has a poor ability to deal with stress and significant problems with interpersonal
communication. Id. His ability to control his reactions to others was noted to be inconsistent and
limiting. Id. She also endorsed that Plaintiff’s problems with shame and PTSD further exacerbate
his other psychiatric issues. Id.
The ALJ did not address the letter signed by Ms. Knepper, which Plaintiff asserts was error.
As a QMHP, Ms. Knepper is a “non-acceptable” medical source under the regulations, and
therefore requires an ALJ to provide germane reasons to reject her testimony. 20 C.F.R.
§§ 404.1513(d), 416.913(d); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006); Ghanim v.
Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). The Commissioner argues that the letter “contains
nothing more than Plaintiff’s attorney’s summary and interpretation of Ms. Knepper’s opinion.”
Def.’s Br. 12. It is not clear, however, why the fact that Plaintiff’s attorney drafted the summary
negates the opinions expressed in it, particularly considering there is no dispute that Ms. Knepper
endorsed it with her signature. The Commissioner also argues that because Ms. Knepper only
began treating Plaintiff in 2015, the opinions expressed are not relevant to the period at issue. Id.
The Court agrees that the letter appears to refer only to Ms. Knepper’s observations of
Plaintiff between 2015 and 2016, and therefore the ALJ’s error in failing to address it is not
material to the issue of whether he was disabled prior to January 1, 2013. See Molina v. Astrue,
674 F.3d 1104, 1122 (9th Cir. 2012) (harmless error rule applies to non-acceptable medical source
testimony). As such, the Court may not reverse the decision based on the ALJ’s failure to address
the letter. Nonetheless, the Court notes that her letter is generally consistent with the opinions of
acceptable medical sources who were erroneously discredited as discussed above in terms of the
diagnoses of bipolar disorder and PTSD, as well as Plaintiff’s significant anger, irritability, and
interpersonal skills, as well as the opinion he would have difficulty succeeding in the workplace
due to these symptoms. Further, although the statement appears to be most relevant to his
symptoms and impairments between 2015 and 2016, several other providers and examiners have
opined that similar symptoms are longstanding, chronic issues.
In sum, the ALJ erroneously rejected the otherwise probative medical opinions of Drs.
Alvord, Eisenberg, Powell and Burns, and additionally PMHNP Toledo-Silvestre. Their generally
consistent opinions suggest greater mental limitations than those set forth in the RFC, and therefore
yet another remand is required on those grounds alone.
II. Onset and Severity of Plaintiff’s Neuropathy
Plaintiff argues that the ALJ erroneously failed to find Plaintiff’s neuropathy impairment
was “severe” prior to January 1, 2013, and that a proper evaluation of such would have established
that the neuropathy met or equaled one of the presumptively disabling impairments in the Listings
from the alleged onset date until December 31, 2012. The Commissioner’s position is that the ALJ
did not err on either count. This Court previously remanded this case in part to determine if the
neuropathy impairment was severe at step two of the sequential evaluation process. Tr. 1716. The
issue was also raised at the 2017 hearing. Tr. 1663.
In support of Plaintiff’s assignment of error, he cites answers by testifying medical expert
Joselyn E. Bailey, M.D., in response to interrogatories posed by Plaintiff’s attorney which were
made part of the record. See Tr. 3282-85. The record includes the following exchange:
Q: At the hearing on September 6, 2017, you testified that the claimant did not meet
or equal a listing before his DLI [date last insured]. Does this continue to represent
your opinion regarding whether the claimant met or equaled a listing through the
date last insured?
Checking a box labeled “No,” Dr. Bailey answered thus:
A: My interrog [sic] of 5/14/18 stated that the claimant equaled [the] listing of
diabetes mellitus 9.08 with peripheral neuropathy 11.14 because his diabetes was
uncontrolled causing osteomyelitis causing amputation of the right third toe . . . the
additional medical records of 1-18-13 through 11-25-16 confirmed continued
uncontrolled diabetes mellitus with A_1_c of 10.8 on 1/14/15 with 2nd foot ulcer
4/2/16 – chronic.
Tr. 3283. Plaintiff contends the ALJ failed to infer a reasonable onset date of the neuropathy
impairment under SSR 83-20 despite finding it to be severe as of January 1, 2013, and that Dr.
Bailey’s response to the interrogatory directs that Plaintiff met a listing prior to DLI. See Tr. 1592-
93. The ALJ gave “little weight” to Dr. Bailey’s answer because Plaintiff never met listing 11.14,
although the impairment became severe on January 1, 2013. Tr. 1606-07. The Commissioner
asserts that Dr. Bailey’s “no” checkmark is merely a typographical error because her response
pertains only to the period following the DLI. Def.’s Br. 12-13. The Commissioner further asserts
the ALJ did not err in finding the record reflects Plaintiff “never had peripheral neuropathy” to the
extent alleged. Tr. 1606.
The Commissioner’s argument that the interrogatory answer is a typo fails, as the ALJ
appeared to interpret the response at face value. Id. Further, nothing in Dr. Bailey’s answer
suggests that the question or answer was confined to the period after the DLI – in fact, a plain
reading of the relevant passages suggests the opposite. On the other hand, Plaintiff’s assertion that
the ALJ was required to infer an onset date is unavailing, as the ALJ identified an onset date of
January 1, 2013.
Even so, the ALJ was allowed to accord the opinion little weight to the extent it was not
supported by substantial evidence. Although Plaintiff asserts neuropathy symptoms predated
Plaintiff’s filing date, he does not identify evidence in support aside from listing neuropathy in his
applications. For example, although Plaintiff complained of “pins and needles” in his leg in 2007,
relevant objective testing was negative. Tr. 306. A complaint of left leg pain, also in 2007, was
attributed to a spinal nerve root injury rather than complications from diabetes. Tr. 460. Other
evidence Plaintiff cites in support of his argument does not show neuropathy prior to January 1,
2013. Pl.’s Br. 7; see Tr. 2009 (dated 2014), 2011 (dated 2014), 2036 (no evidence), 2056 (dated
2014), 2058 (dated 2014), 2060 (dated 2014), 2062 (dated 2014), 2072 (dated 2014). As such, the
ALJ’s finding is supported by substantial evidence.
III. Plaintiff’s Subjective Symptom Testimony
Where a claimant’s medically determinable impairments reasonably could be expected to
produce some degree of the symptoms complained of, and the record contains no evidence of
malingering, the ALJ may reject symptom testimony only by offering specific, clear and
convincing reasons for doing so. Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020) (citing
Garrison, 759 F.3d at 1014-15). Thus, “[g]eneral findings are insufficient; rather, the ALJ must
identify what testimony is not credible and what evidence undermines the claimant’s complaints.”
Brown-Hunter v. Colvin, 806 F.3d 487, 493-94 (9th Cir. 2015) (citation omitted); see Social
Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *8 (Oct. 25, 2017) (“We will explain which
of an individual’s symptoms we found consistent or inconsistent with the evidence in his or her
record and how our evaluation of the individual’s symptoms led to our conclusions.”).
Plaintiff’s symptom allegations are discussed in large part in conjunction with the medical
opinion evidence, supra. The ALJ found that Plaintiff’s allegations were inconsistent with the
medical evidence regarding his physical and mental impairments, discounted his allegations based
on noncompliance with his diabetes treatment regimen, inconsistent statements about drug use,
and the ALJ also mentioned Plaintiff’s focus on obtaining disability benefits. See Tr. 1596-99;
Def.’s Br. 13-16. Plaintiff does not take issue with the ALJ’s finding that his physical impairments
are inconsistent with the medical evidence. See Tr. 1596-97. However, Plaintiff argues that the
ALJ failed to properly discredit his symptom testimony regarding his mental impairments and
diabetes treatment noncompliance.
The ALJ only provided only a brief explanation for rejecting Plaintiff’s mental health
complaints. Essentially, the ALJ identified his cooperative demeanor at clinical visits and mental
health evaluations, and cognitive assessments inconsistent with his allegations regarding
concentration. Tr. 1598. For the reasons described above, Plaintiff’s cooperative demeanor at some
clinical visits and evaluations is not a clear-and-convincing reason to discredit his allegations of
significant anger, irritability, and interpersonal limitations which numerous doctors found to be
limiting or preclusive of work, despite his cooperation. Supra. Even where the ALJ did not
explicitly err in rejecting medical opinion evidence, such as is the case with Drs. Dodson and Adler
and QMHP Knepper, their opinions were generally consistent with Drs. Alvord, Eisenberg, Burns
and Powell, as well as the opinion of PMHNP Toledo-Silvestre regarding Plaintiff’s behavioral
symptoms. Nearly all the medical sources discussed recognized Plaintiff’s consistent problems
with anger, irritability, disorganized thought processes, attention and concentration problems,
significant depression symptoms, poor coping skills, and difficulties interacting with others.
Supra. Those sources properly based their assessments on their own personal observations of
Plaintiff in clinic, review of his medical history, and his self-reported symptoms, despite noting a
cooperative demeanor at times. The ALJ’s rationale is not clear-and-convincing, and not supported
by substantial evidence.
The ALJ’s other reasons for rejecting Plaintiff’s symptom testimony regarding
noncompliance with his diabetes medications are also unpersuasive. In the context of serious
mental health issues, “it is a questionable practice to chastise one with a mental impairment for the
exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th
Cir. 2007) (citation omitted). Such is the case here – numerous providers and examiners noted
Plaintiff’s poor judgment. The record reflects Plaintiff’s failure to follow his prescribed treatments
are indicative of the severity of his mental impairments, not that his diabetes is not as severe as
alleged, or even is adequately controlled with medication. The rationale is erroneous here.
As explained above, by most accounts Plaintiff’s drug use has been a recurrent problem in
his life. However, the ALJ determined that his drug use “is not a contributing factor material to
the determination of disability.” Further, it is a common phenomenon for individuals with
significant mental health problems to use drugs to self-medicate, and again, the exercise of poor
judgement in using illicit drugs in the first place is indicative of the poor judgment associated with
mental impairment. Further, several treating sources of record explained that Plaintiff’s mental
health symptoms remained largely unchanged whether Plaintiff was using or not, and other treating
and examining medical experts explained that his unusual behavior was not related to substance
abuse, despite understanding the potential for that to be the case. Supra. To the extent the ALJ
disregarded Plaintiff’s symptom testimony on his inconsistent reports about drug use, the ALJ’s
rationale is not clear-and-convincing on this record.
IV. Lay Witness Testimony
Plaintiff argues that the ALJ erroneously rejected lay witness statements and hearing
testimony provided by Jacequeline W., his mother, and Karl W., his brother. See Tr. 86-95. An
ALJ must consider statements provided by lay witnesses, and may reject them only for specific,
germane reasons. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). Nevertheless, if an ALJ
failed to provide such reasons, the error may be harmless where the ALJ has provided clear-and-
convincing reasons to reject substantially similar symptom testimony provided by the claimant.
Molina, 674 F.3d at 1122.
Both individuals testified at a 2009 ALJ hearing. See Tr. 86-95. Plaintiff’s mother
explained that he lived with her. She has observed him being short-tempered, easily upset or
triggered, sleeping a lot, and reclusive. Tr. 87. She testified that she has noticed an increase in
reclusiveness and reluctance to leave the house and interact with others. Id. She indicated that
Plaintiff stays in his house four days per week and does not want to interact with anyone on those
days. Tr. 88. She stated that she does most of the household chores, although he does his own
laundry when pushed to do so. Id. She added that Plaintiff does not like to be in public and must
be forced to go grocery shopping. Id.
Plaintiff’s brother testified at the same hearing. He stated that he sees Plaintiff two or three
times a week. Tr. 89. He referred to Plaintiff as a “sloth,” and described Plaintiff as moody and
angry. Tr. 90. He stated that Plaintiff related to him that people “freak [him] out.” Id. Karl W.
testified that Plaintiff seems stressed out about half the time. Id. Plaintiff’s brother indicated that
he did not think Plaintiff had smoked marijuana since his 2009 motor vehicle accident where he
crashed while travelling at high speeds. Id. He further described the unpredictability of Plaintiff’s
mood swings including anger. Tr. 92. He also described Plaintiff as “antsy” in public settings, and
although he was social in the past, he had become isolative. Tr. 93. Karl W. also testified that he
drives his brother to all his medical appointments because Plaintiff is an erratic driver. Tr. 94.
The ALJ gave “little weight” to Plaintiff’s mother’s testimony because it was reliant on
Plaintiff’s self-reports—presumably about his own feelings—and her own observations. Neither
is a valid reason to discount the testimony of an individual who lives with a claimant. Tr. 1063;
see SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006) (in weighing non-medical lay witness
testimony, “it would be appropriate to consider such factors as the nature and extent of the
relationship, [and] whether the evidence is consistent with other evidence); Valentine v. Comm’r
Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (explaining that spouses are often in a
position to observe a claimant’s symptoms and daily activities at home and are therefore competent
to testify about a claimant’s condition) (citation omitted).
The ALJ gave “some weight” to the testimony provided by Plaintiff’s brother because it
was generally consistent with the treatment record showing symptoms of impairment that would
limit him to no contact with the public and limited contact with coworkers and supervisors.
Plaintiff does not assign specific error to Karl W.’s statement, other than to say it was consistent
with his mother’s testimony. The Court agrees. As such, the ALJ provided no valid reason to reject
Plaintiff’s mother’s testimony while accepting in part his brother’s.
V. RFC and VE Testimony
Based on the ALJ’s errors in assessing the opinions of the medical providers and
examiners, the symptom testimony provided by Plaintiff, and the competent testimony provided
by his mother, the RFC cannot be said to be supported by substantial evidence. For example, the
RFC does not contemplate the attention and concentration problems identified throughout the
medical opinion and testimonial evidence.
Plaintiff argues that although the ALJ limited Plaintiff to simple and routine tasks, the mere
inclusion of a limitation to simple tasks does not properly translate problems in attention and
concentration, citing some older cases from this district. Since that time, however, the Ninth
Circuit has clarified that simple tasks adequately account for moderate limitations in concentration,
persistence, or pace. See, e.g., Hairston v. Saul, 827 F. App’x 772, 773 (9th Cir. 2020).
Nevertheless, the medical opinions the ALJ erroneously rejected reflect more than moderate
limitations. Dr. Eisenberg indicated Plaintiff’s moods vary unpredictably from subdued when
depressed to manic hyperactivity, including significant problems sitting still and dealing with
others. Tr. 1583. Dr. Alvord observed significant irritability and agitation, and that he was “acutely
manic” at his third examination. Tr. 1412. The doctor observed inconsistent thought processes and
inconsistent mood and affect. Tr. 1412-13. Plaintiff’s memory was assessed as severely impaired,
which may cause anger, irritability, and low frustration threshold in the context of depression and
anxiety. Tr. 1415. Dr. Alvord concluded that considering all of Plaintiff’s impairments and
symptomatology, his “ability to function in an occupational setting is considered profoundly
limited . . . [and] I do not believe he will be capable of even very simple/repetitive work[.]” Tr.
1415-16. Similarly, Dr. Burns opined that Plaintiff’s attention and concentration were affected by
his “emotionalism,” including symptoms of major depressive disorder and related “thought
disorder symptoms.” Tr. 1359. Treating PMHNP Toledo-Silvestre identified “marked” limitation
in attention and concentration for extended periods and in sustaining and ordinary routine without
special supervision. Tr. 789.
Plaintiff also argues the RFC limitation to no contact with the public and occasional
interaction with supervisors and coworkers did not adequately encompass his limitations—this
Court agrees. For instance, Dr. Alvord observed that due to a tendency to overreact, become
aggressive, irritable, or angry, he would frequently call in sick or not be able to perform
occupational functions. Tr. 1416. Plaintiff’s inconsistent work history was “judged diagnostic of a
history of PTSD and bipolar disorder.” Id. Dr. Powell observed that Plaintiff’s anger and irritability
would make it difficult to gain employment such that he would require a year of vocational
rehabilitation to be successful in a workplace. Tr. 1366-37. Dr. Eisenberg commented that
Plaintiff’s mental health symptoms make it difficult for him to tolerate even a full clinical
appointment, as he tries to leave before evaluations are finished. Tr. 1583. Dr. Burns opined that
Plaintiff has difficulty interacting with others and tends to isolate himself based on irrational fears
of judgment or victimization by others. Tr. 1359. Ms. Toledo-Silvestre indicated Plaintiff would
have “marked” limitations in ability to respond appropriately with supervisors, get along with
coworkers, and maintain socially acceptable behavior. Tr. 789. She further opined Plaintiff would
have “marked” limitation in completing a normal workday or workweek without interference from
his mental health symptoms. Id.
Although the ALJ did not err in evaluating the opinions of Drs. Adler and Dodson, both
doctors’ opinions included observations consistent with those rejected by the ALJ. Dr. Adler
observed Plaintiff as easily irritated and opined that dealing with stress and authority figures
appeared to be “major problems.” Tr. 653. Dr. Dodson noted identified “significant problems with
irritability and racing thoughts,” as well as making “veiled threats to others.” Tr. 723. The letter
endorsed by QMHP Knepper reflects similar symptoms and limitations. Tr. 3236-37.
In any event, as stated above, the ALJ’s errors in evaluating the medical opinions and
testimonial evidence so undermine the RFC that it is not supported by substantial evidence.
Likewise, because the VE’s answers are premised on the validity of the RFC, those too are
undermined, which invalidate the ALJ’s step five finding for the period before January 1, 2013.
VI. Remedy
By statute, a reviewing court “shall have the power to enter a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security.” 42 U.S.C. § 405(g).
Accordingly, courts may remand a case for immediate payment of benefits without further
administrative proceedings. Garrison, 759 F.3d at 1019. In the Ninth Circuit, a Social Security
case must be remanded to the Commissioner if the ALJ’s decision is based on legal error or
unsupported by substantial evidence. Id. Courts in the Ninth Circuit determine whether a case
should be remanded for additional proceedings or immediate payment of benefits pursuant to the
“credit-as-true” inquiry, whereby the court determines that (1) the ALJ’s decision is invalid on
legal or evidentiary grounds; (2) the administrative record is fully developed and further
proceedings would serve no useful purpose; and if (3) crediting the improperly discredited
evidence as true, an ALJ on remand would be compelled to find a plaintiff disabled. Dominguez
v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted).
Based on the ALJ’s errors as explained above, the Social Security Administration has failed
to provide a legally viable non-disability decision for the third time, despite two remands from the
Appeals Council, three hearings, and two trips to federal court. Step one of the credit-as-true
inquiry is met. The voluminous record in this case includes many medical source opinions,
including the many which were rejected on invalid grounds, particularly considering the Ninth
Circuit’s directions for evaluating self-reported mental health issues set forth in Buck v. Berryhill.
Plaintiff provided testimonial evidence at three hearings. Plaintiff’s family members also testified
before an ALJ. Consequently, the administrative record in this case is over 3,000 pages long.
Despite the Commissioner’s argument that any reversible errors in this matter might best be
resolved in yet another round of proceedings, the Court does not discern how further development
of this record would serve any useful purpose. As Plaintiff observes, there is no doubt that he is
now disabled under the Act and has been adjudged to be so as of January 1, 2013. Moreover, the
bulk of the medical evidence suggests that his mental limitations are not only disabling as of that
date but have been chronic for a very long time. Although there is evidence of drug use in this
case, as discussed, such drug use is commonplace in the context of severe mental impairments.
Moreover, more than one doctor has provided expert medical opinion evidence that Plaintiff’s
symptoms have remained consistent whether or not he is using. At times, although Plaintiff has
been noted to be “cooperative” at clinical visits, treating and examining doctors have, without
exception, also observed symptoms—and often objective medical testing evidence—
demonstrating that Plaintiff is profoundly impaired. As was the case with the plaintiff in Garrison,
Plaintiff’s particular symptoms, including the lows of depression and the highs of mania, are
characteristic of his “unfortunate” combination of mental disorders, as Dr. Alvord put it.
For these reasons and considering the combined effects of Plaintiff’s mental health
limitations, the RFC limitations to simple routine tasks and occasional interaction with supervisors
and coworkers simply does not square with the ample medical and testimonial evidence. Further,
VE testimony substantiates that Plaintiff is not employable in the national economy. The VE at the
first hearing testified that if a worker were to call in sick due to depression symptoms three or more
times a month or would have an angry outburst once a month against coworker or supervisor, that
person could not maintain employment. Tr. 100. The VE at the third hearing testified that if a
worker were to cause noticeable disruptions in the workplace due to anger or irritability, and those
disruptions were to continue despite a warning, the person would not be employable. Tr. 1656.
The VE also testified that if a worker were off-task 20 percent of the time, he would also be
unemployable. Tr. 1657. Step two of the credit-as-true inquiry is met.
The Commissioner has been provided many opportunities to address errors in this matter.
As the Ninth Circuit has repeatedly stated, “[a]llowing the Commissioner to decide the issue[s]
again would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits
adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citation omitted). This case
has spanned nearly a decade. The Commissioner asserts that the “normal” rule is for a court to
remand for further proceedings rather than for payment of benefits. But the numerous hearings,
extensive medical opinion evidence, and multiple erroneous decisions in this matter demonstrate
that this is not a “normal” case. Enough is enough. Considering the extensive record and crediting
the erroneously discredited medical opinion and testimonial evidence as true, Plaintiff is disabled
under the Act. The Court has no doubt that Plaintiff is not employable in light of the record as a
whole. Accordingly, the Court chooses to exercise its discretion to remand this matter for
immediate payment of DIB as of the onset date of August 17, 2006, and SSI benefits as of the
initial application date of October 12, 2007.
///
///
CONCLUSION
Based on the foregoing, the decision of the Commissioner is REVERSED and this case
REMANDED for immediate payment of benefits.
9th March
DATED this ______day of ______________, 2021.
MARK D. CLARKE
United States Magistrate Judge
Page 38 — OPINION AND ORDER