ALJ’s residual functional 22 || capacity assessment cannot stand in the absence of evidentiary support
How later courts described this case
- ALJ’s residual functional 22 || capacity assessment cannot stand in the absence of evidentiary support
- an ALJ is forbidden from making his or her own medical 12 || assessment beyond that demonstrated by the record
- ALJ’s duty 24 || to develop the record further is triggered “when there is ambiguous evidence or 25 || when the record is inadequate to allow for the proper evaluation of the evidence’
- “The 19 || revised social security regulations are clearly irreconcilable with our caselaw 20 || according special deference to the opinions of treating and examining physicians 21 || on account of their relationship with the claimant.”
Written by the judges who cited it.
The opinion
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 1 of 20 Page ID #:1124
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
10
11 RAYMOND L. S.,1 Case No. 5:20-cv-02019-JC
12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER OF REMAND
14
KILOLO KIJAKAZI, Acting
15 Commissioner of Social Security,
16 Defendant.
17
18 I. SUMMARY
19 On September 29, 2020, plaintiff filed a Complaint seeking review of the
20 Commissioner of Social Security’s denial of plaintiff’s application for benefits.
21 The parties have consented to proceed before the undersigned United States
22 Magistrate Judge.
23 This matter is before the Court on the parties’ cross motions for summary
24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)
25 (collectively “Motions”). The Court has taken the Motions under submission
26
27 1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal
28 Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United States.
1
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 2 of 20 Page ID #:1125
1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order
2 filed on May 10, 2021, at ¶ 5.
3 Based on the record as a whole and the applicable law, the decision of the
4 Commissioner is REVERSED AND REMANDED for further proceedings
5 consistent with this Memorandum Opinion and Order of Remand. Substantial
6 evidence does not support the Administrative Law Judge’s (“ALJ’s”) residual
7 functional capacity assessment.
8 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
9 DECISION
10 On December 20, 2018, plaintiff filed applications for Supplemental
11 Security Income and Disability Insurance Benefits, alleging disability beginning on
12 December 8, 2018, due to seizures and moderate degenerative joint disease of the
13 lumbar spine. (Administrative Record (“AR”) 262-74, 292). The ALJ
14 subsequently examined the medical record and heard testimony from plaintiff (who
15 was represented by counsel) and a vocational expert, where plaintiff asserted he
16 also suffered from major depressive disorder and post traumatic stress disorder
17 (“PTSD”). (AR 41-65).
18 On June 25, 2020, the ALJ determined that plaintiff had not been disabled
19 through the date of the decision. (AR 16-35). Specifically, the ALJ found:
20 (1) plaintiff suffered from the following severe impairments: seizure disorder,
21 PTSD, major depressive disorder, anxiety, degenerative disc disease, and substance
22 abuse (AR 18-19); (2) plaintiff’s impairments, considered individually or in
23 combination, did not meet or medically equal a listed impairment (AR 19-21);
24 (3) plaintiff retained the residual functional capacity to perform medium work
25 (20 C.F.R. §§ 404.1567(c), 416.967(c)), with additional limitations2 (AR 21-32);
26
27 2The ALJ determined that plaintiff would be limited to: (1) occasionally climbing stairs
28 and ramps, never climbing ladders and scaffolding; (2) occasionally balancing, stooping,
(continued...)
2
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 3 of 20 Page ID #:1126
1 (4) plaintiff was unable to perform his past relevant work (AR 33); (5) plaintiff
2 could perform other work existing in significant numbers in the national economy
3 and therefore was not disabled (AR 33-34 (adopting vocational expert testimony at
4 AR 62-64)); and (5) plaintiff’s statements regarding the intensity, persistence, and
5 limiting effects of subjective symptoms were not entirely consistent with the
6 medical evidence and other evidence in the record (AR 22-29). On August 18,
7 2020, the Appeals Council denied plaintiff’s application for review. (AR 1-3).
8 III. APPLICABLE LEGAL STANDARDS
9 A. Administrative Evaluation of Disability Claims
10 To qualify for disability benefits, a claimant must show that he is unable “to
11 engage in any substantial gainful activity by reason of any medically determinable
12 physical or mental impairment which can be expected to result in death or which
13 has lasted or can be expected to last for a continuous period of not less than
14 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting
15 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by
16 regulation on other grounds as stated in Sisk v. Saul, 820 Fed. App’x 604, 606 (9th
17 Cir. 2020); 20 C.F.R. §§ 404.1505(a), 416.905(a). To be considered disabled, a
18 claimant must have an impairment of such severity that he is incapable of
19 performing work the claimant previously performed (“past relevant work”) as well
20 as any other “work which exists in the national economy.” Tackett v. Apfel, 180
21 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
22 ///
23
24
2(...continued)
25
kneeling, crouching, and crawling; (3) no work at unprotected heights or around dangerous
26 moving machinery; (4) no commercial driving or operating heavy equipment; (5) understanding,
remembering, and applying simple and detailed instructions, and concentrating and persisting for
27 extended periods to complete simple and detailed work tasks with routine supervision;
28 (6) occasionally interacting with the general public; and (7) adapting to work in a routine work
setting where changes are infrequent, well explained and introduced gradually. (AR 21).
3
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 4of20 Page ID#:1127
1 To assess whether a claimant is disabled, an ALJ is required to use the five-
2 || step sequential evaluation process set forth in Social Security regulations. See
3 || Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
4 || Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R.
5 || §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through
6 || four —i.e., determination of whether the claimant was engaging in substantial
7 || gainful activity (step 1), has a sufficiently severe impairment (step 2), has an
8 || impairment or combination of impairments that meets or medically equals one of
9 || the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings’’)
10 || (step 3), and retains the residual functional capacity to perform past relevant work
11 || (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted).
12 || The Commissioner has the burden of proof at step five — i.e., establishing that the
13 | claimant could perform other work in the national economy. Id.
14 B. Federal Court Review of Social Security Disability Decisions
15 A federal court may set aside a denial of benefits only when the
16 || Commissioner’s “final decision” was “based on legal error or not supported by
17 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
18 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard
19 || of review in disability cases is “highly deferential.” Rounds v. Commissioner of
20 || Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 2015) (citation and
21 || quotation marks omitted). Thus, an ALJ’s decision must be upheld if the evidence
22 || could reasonably support either affirming or reversing the decision. Trevizo, 871
23 || F.3d at 674-75 (citations omitted). Even when an ALJ’s decision contains error, it
24 || must be affirmed if the error was harmless. See Treichler v. Commissioner of
25 || Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error
26 || harmless if (1) inconsequential to the ultimate nondisability determination; or
27 || (2) ALJ’s path may reasonably be discerned despite the error) (citation and
28 || quotation marks omitted).
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page5of20 Page ID #:1128
1 Substantial evidence is “such relevant evidence as a reasonable mind might
2 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
3 || “substantial evidence” as “more than a mere scintilla, but less than a
4 || preponderance”) (citation and quotation marks omitted). When determining
5 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
6 || entire record as a whole, weighing both the evidence that supports and the evidence
7 || that detracts from the Commissioner’s conclusion[.]|’? Garrison v. Colvin, 759 F.3d
8 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
9 Federal courts review only the reasoning the ALJ provided, and may not
10 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
11 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
12 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
13 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
14 }|| 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
15 A reviewing court may not conclude that an error was harmless based on
16 || independent findings gleaned from the administrative record. Brown-Hunter, 806
17 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently
18 || conclude that an error was harmless, a remand for additional investigation or
19 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
20 || (9th Cir. 2015) (citations omitted).
21)1V. DISCUSSION
22 Plaintiff raises issues with the ALJ’s consideration of his testimony and
23 || statements and of the medical opinions of record concerning plaintiff's mental
24 | limitations. (Plaintiff's Motion at 4-6). For the reasons stated below, the Court
25 || finds that substantial evidence does not support the ALJ’s residual functional
26 || capacity assessment. Since the Court cannot find that the error was harmless, a
27 || remand is warranted.
28 ///
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 6 of 20 Page ID #:1129
1 A. Summary of the Relevant Medical Record3
2 1. Medical Records
3 As detailed below, the record reflects ongoing treatment for seizures and
4 mental health issues, a long history of alcohol and marijuana use, and program
5 assistance with transitional housing and living skills for plaintiff who was
6 homeless as of the alleged onset date.
7 At an emergency room visit and subsequent follow up for seizure in
8 December 2018, plaintiff notedly had a history of alcohol use with recent
9 “discontinuation” the prior week, a history of two prior alcohol withdrawal
10 seizures, and he reportedly had taken Lorazepam for anxiety dating back to July of
11 2018. (AR 342, 345, 404-06; see also AR 347-48 (August 2018 note reporting
12 long history of alcohol withdrawal seizures in the past, and noting that plaintiff
13 was cooperative with appropriate mood and affect, normal judgment and non-
14 suicidal); AR 353-54 (July 2018 note for alcohol withdrawal seizure noting
15 plaintiff needed to curtail his alcohol use/abuse)). A brain MRI showed no
16 evidence of acute infarct, mass or hemorrhage, and only a 3-mm right hippocampal
17 sulcal remnant cyst, and an EEG also was normal. (AR 361-63, 382-84; see also
18 AR 405 (note that July, 2018 head CT scan that was unremarkable); AR 430
19 (March, 2019 PET/CT brain scan that was normal)). Plaintiff was approved to take
20 Keppra for his seizures. (AR 373-74, 407).
21 Plaintiff presented to the West Los Angeles Veterans Affairs (“VA”)
22 Medical Center in December 2018, for homeless program services. (AR 386). He
23 reportedly had been homeless on and off for several years with his last stable
24 housing seven years earlier. (AR 387). His homelessness reportedly appeared to
25 be due to substance abuse and mental illness, and he admitted drinking alcohol and
26
27 3Since the issues raised herein concern only plaintiff’s mental impairments, limitations
28 and abilities, the Court has not summarized the evidence concerning plaintiff’s physical
impairments.
6
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1 using cannabis when he could afford it. (AR 387-88). He had a history of alcohol
2 or drug abuse/dependence and depression. (AR 389). His short term goal was to
3 go to a residential treatment program for alcohol and cannabis use, address his
4 seizure disorder, and eventually go back to work. (AR 391). On examination, he
5 had a euthymic mood, linear thought process, intact insight/judgment and fair
6 impulse control, and otherwise findings within normal limits. (AR 391). Plaintiff
7 was referred to a “domiciliary” program. (AR 391).
8 Plaintiff returned for a psychology consultation with Dr. Nanci Argueta in
9 February 2019, complaining of a history of seizures for the past year, alcohol use,
10 difficulty adjusting to being unable to work or drive due to seizures, social anxiety,
11 and a history of suicidal ideations. (AR 377). He then was living with his uncle.
12 (AR 377). Plaintiff previously had been in a mental health program at the Loma
13 Linda VA. (AR 387). Plaintiff was polite, cooperative with a slightly anxious
14 mood initially, congruent affect, and normal speech. (AR 378). Dr. Argueta
15 approved plaintiff for outpatient care. (AR 378).
16 Plaintiff underwent a neuropsychology consultation with Drs. Garima J.
17 Lupas and Charles H. Hinkin in April 2019, complaining of, inter alia, mild
18 memory lapses, longstanding social anxiety, sadness and frustration that his
19 driver’s license was suspended due to his seizures which precluded him from
20 working. (AR 512-23). Plaintiff had been diagnosed with an unspecified anxiety
21 disorder for which he attended therapy from 2016 through July 2018, and admitted
22 a history of suicidal ideation/attempts, and a history of excessive alcohol use,
23 drinking 10-12 beers a day until December 2018. (AR 514-15). Plaintiff described
24 his mood as anxious and his affect was full range and congruent with session
25 content, he had slightly pressured speech and a somewhat tangential thought
26 process, but he also appeared generally alert and attentive, was cooperative,
27 exhibited good persistence and frustration tolerance, and worked diligently putting
28 forth good effort. (AR 515-16). On testing, his IQ was average, measures of
7
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 8 of 20 Page ID #:1131
1 simple attention and working memory were within normal limits, his sustained
2 attention/vigilance was variable suggesting some difficulty sustaining attention
3 over an extended period of time, his language was average/high average, his
4 visuospatial skills were within normal limits, and his learning and memory were
5 intact, with significant benefit from repeated exposure to the multi-trial list
6 learning task, and overall excellent learning. (AR 516). There was evidence of
7 proactive interference, indicating that old information significantly interfered with
8 learning new verbal information. (AR 516). He was able to recall almost all words
9 from an initial list following a 20-minute delay. (AR 516). Other memory
10 measures and executive functioning were intact, and he had low average
11 processing speed. (AR 516-17). Plaintiff reportedly performed well on cognitive
12 testing and had no areas of frank impairment in any cognitive domain – he only
13 had “subtle weakness” in sustained attention, some aspects of executive
14 functioning, and motor speed/dexterity. (AR 518).
15 The psychologists concluded that plaintiff likely meets criteria for social
16 anxiety disorder, and he had possible agoraphobic tendencies and possible
17 undiagnosed attention deficit/hyperactivity disorder. (AR 518-19). They
18 recommended individual psychotherapy, a psychiatry referral, occupational
19 counseling/rehabilitation, and taking frequent breaks while working on tasks for
20 extended periods of time, reducing distractions and working in a quiet, uncluttered,
21 uninterrupted area, and noted that plaintiff may have trouble and become frustrated
22 in situations requiring flexibility and adaptation. (AR 519).
23 Plaintiff returned for an initial mental health assessment with Dr. Argueta in
24 May 2019, complaining of anxiety and depression with anhedonia, decreased
25 appetite, insomnia, fatigue, excessive guilt and worthlessness, and suicidal ideation
26 when he has been under the influence. (AR 412-18). Plaintiff had experienced
27 multiple traumatic events during his military service, followed by nightmares,
28 hallucinations, negative affective changes, negative cognitive changes, avoidance,
8
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 9 of 20 Page ID #:1132
1 hypervigilance, and muscle tension. (AR 412). Plaintiff admitted a history of
2 alcohol use and THC use since ages 21 and 24, respectively. (AR 415). He
3 reported no prior psychiatric treatment, but had some individual therapy for less
4 than a year which he found helpful. (AR 412). Plaintiff’s treatment plan was for
5 individual therapy for six to 12 months, social work assistance with housing and
6 financial resources, and he declined to attend group therapy. (AR 414).4 Plaintiff
7 also declined pharmacotherapy in favor of behavioral treatment, reporting
8 elsewhere that he wanted to feel like himself and “not be out of it.” (AR 414, 754).
9 Plaintiff was admitted to the hospital for four days in August 2019, for
10 possible epilepsy and monitoring, but his stay was “non-diagnostic” – there was no
11 EEG evidence of seizures, so doctors thought plaintiff’s seizures were likely
12 “PNES” (psychogenic nonepileptic seizures). (AR 452-62). Mental status
13 examination at the time was within normal limits, as was neuropsychological
14 testing except for anxiety and depression inventories which suggested moderate
15 anxiety and mild depression. (AR 456, 458-62). Plaintiff’s Keppra was continued.
16 (AR 462).5
17 In September 2019, plaintiff presented for an initial homeless assessment
18 with a social worker to determine whether he met criteria for housing assistance.
19 (AR 812). He had been living in his car in a “safe parking program” and notedly
20 appeared to minimize his use of substances and mental health treatment. (AR 812).
21 There were several discrepancies between plaintiff’s report and chart (e.g., plaintiff
22
23
4Plaintiff did attend group skills training, and related notes from November 2019 reported
24 that plaintiff smiled and laughed and was getting comfortable in the group sharing each week,
25 however he did not feel comfortable role playing. (AR 706, 725, 727-30).
26 5Plaintiff thereafter reportedly was experiencing about one seizure per month. See AR
584-92 (February 2020 emergency room visit noting that plaintiff was suffering about one
27 seizure a month); see also AR 628-34, 659-66 (December 2019 seizure treatment notes); AR
28 711-23, 739-48 (November 2019 seizure treatment notes); AR 778-90 (October 2019 seizure
treatment notes); AR 818-21 (September 2019 seizure treatment notes).
9
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1 reported being homeless since 2016, but his chart said he was homeless since July
2 2019). (AR 812-13). On examination, he was alert and oriented, unkempt, lacked
3 personal grooming, compliant, made eye contact, spoke clearly, was able to
4 express himself, had intact memory, appropriate thought content, good judgment,
5 calm mood, and appropriate affect. (AR 816). He was put on a list for housing
6 assistance. (AR 817).
7 Later in September 2019, plaintiff notedly was discharged from the safe
8 parking program because of an incident between plaintiff and VA social workers
9 and security. (AR 793). Plaintiff reportedly had become agitated when a security
10 guard inquired about his name and safe parking tag, leading to a search of
11 plaintiff’s car and plaintiff claiming that he had been singled out and that his rights
12 had been violated. (AR 794). Plaintiff reportdly expressed paranoid thoughts
13 regarding signing a release of information, and allegedly was increasingly agitated
14 and posturing, yelling at social workers and other participants. (AR 794-95).
15 Plaintiff reportedly was angry with pressured speech and loud tone, was in acute
16 psychological distress, was easily agitated, avoided eye contact, and had poor
17 insight. (AR 795).
18 Plaintiff followed up with Dr. Argueta later in September to make a
19 complaint, and Dr. Argueta noted that plaintiff had been in treatment for PTSD but
20 unable to start “EBP” due to his current housing situation and need for greater
21 stabilization. (AR 795-96). Plaintiff was friendly and cooperative with Dr.
22 Argueta though expressing frustration. (AR 796). In another note, it is reported
23 that plaintiff had an appointment to see a psychiatrist in October, but he stated his
24 desire to take no psychiatric medications. (AR 754).
25 Plaintiff began residing at the New Directions Program (VA transitional
26 housing) in October 2019. (AR 769). Over several visits, plaintiff reported to Dr.
27 Argueta having difficulty adjusting to sharing a room with other people. (AR 737,
28 748, 756-57).
10
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1 By March 2020, plaintiff reported being tired of living at the VA and
2 wanting to move, that he was not being treated well, and that he had multiple
3 hostile interactions with VA police who had beat him up leading to a “case.” (AR
4 550-52, 555-58; see also AR 574, 579-80 (plaintiff detailing incident(s) with VA
5 security/police)). When plaintiff spoke with a housing specialist, he reportedly
6 was tense, cursing, and stating that he no longer wanted to live in VA housing.
7 (AR 555-56). On examination, he was agitated and had bouts of shouting and
8 cursing, but had fair judgment. (AR 556). Even so, at these and earlier visits,
9 plaintiff reportedly was alert, neat, appropriate, candid, cooperative/polite, able to
10 express himself, and had appropriate thought content and perceptions and good
11 judgment, but had an angry/anxious/euthymic mood. (AR 547, 552, 556; see also,
12 e.g., AR 561 (February 2020 note reporting same findings but for frustrated mood);
13 AR 563 (February 2020 note reporting plaintiff was polite and cooperative with a
14 slightly anxious mood); AR 564 (February 2020 note reporting plaintiff was
15 cooperative and participatory, made consistent eye contact, had euthymic/angry
16 mood, labile affect, sometimes high volume speech, some thought perserveration,
17 and fair judgment/insight); AR 566 (February 2020 note reporting plaintiff was
18 agitated, candid/cooperative, open, able to express himself, had angry/hurt mood,
19 tense/tearful affect, and fair judgment); AR 567 (February 2020 note reporting
20 plaintiff was very polite and cooperative, and his mood was initially slightly
21 anxious with congruent affect); AR 574-75 (February 2020 note reporting plaintiff
22 was cooperative, calm with euthymic mood, congruent affect, normal speech,
23 normal thought, and good concentration, cognition, memory, judgment, and
24 insight); AR 580 (February 2020 note reporting plaintiff was candid/cooperative,
25 ///
26 ///
27 ///
28 ///
11
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 12 of 20 Page ID #:1135
1 open, able to express himself, with appropriate thoughts, good judgment, calm/
2 euthymic mood, and appropriate affect)).6
3 2. Opinion Evidence
4 State agency physicians reviewed the record initially in February 2019, and
5 found medically determinable impairments of epilepsy and substance abuse
6 disorders (alcohol) were non-severe and severe, respectively, and found
7 insufficient evidence to evaluate plaintiff’s claim. See AR 72-73, 81-82
8 (explaining, “[Claimant] alleges anxiety; there is no medical evidence to establish
9 MDI [medically determinable impairment]. NH has a history of alcohol abuse and
10 alcohol withdrawal seizures. Rx. Ativan for anxiety.”).
11 On reconsideration in May 2019, state agency physicians found plaintiff’s
12 medically determinable impairment of epilepsy was severe, and other medically
13 determinable impairments (substance abuse disorders (alcohol), and anxiety and
14 obsessive-compulsive disorders) were non-severe. (AR 90, 100). They opined that
15 plaintiff should have seizure precautions (i.e., never climbing ramps stairs, ladders,
16 ropes or scaffolds, and avoiding all exposure to hazards and heavy machinery), but
17 found no exertional limits. (AR 91-93, 101-03). These reviewers did not consider
18 any VA records after February of 2019. (AR 87-89, 97-99).
19 Dr. Arguota completed a Mental Residual Functional Capacity
20 Questionnaire dated April 1, 2020, reporting she had treated plaintiff every one-to-
21 two weeks since February 2019, for PTSD, major depressive disorder, and
22 epilepsy, and with a fair to poor prognosis. (AR 1045-49). Dr. Arguota opined
23 that plaintiff would have:
24 ///
25
26 6Earlier mental health treatment notes report similar findings on examination. See AR
606, 612-13, 620, 624, 626, 627, 643, 649, 651, 673, 674, 676, 683-84, 686, 690-91, 692, 695,
27 697, 703, 708, 724, 731, 737, 749, 752, 754-55, 757, 773, 776-77, 804, 806, 808, 809, 812, 817,
28 932, 941, 943, 944, 945-46, 948, 952, 956, 962-63, 966, 968, 970, 972-73, 978-79 (notes from
June 2019 through January 2020).
12
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1 (1) no understanding or memory impairments (i.e., he could remember
2 locations and work-like procedures, understand and remember very
3 short and simple instructions and detailed instructions, and carry out
4 very short and simple instructions);
5 (2) “category II” impairment (i.e., precluding performance for five
6 percent of an eight-hour workday, not including normal breaks, or
7 limitations due to substance or alcohol abuse) in carrying out detailed
8 instructions, performing activities within a schedule, maintaining
9 regular attendance, being punctual within customary tolerances, being
10 aware of work hazards and taking appropriate precautions, and setting
11 realistic goals and plans independently of others;
12 (3) “category III” impairment (i.e., precluding performance of 10 percent
13 of a workday, not including normal breaks, or limitations due to
14 substance or alcohol abuse) sustaining an ordinary routine without
15 special supervision, making simple work-related decisions, asking
16 simple questions or requesting assistance, getting along with
17 coworkers or peers without distracting them or exhibiting behavioral
18 extremes, maintaining socially appropriate behavior, and responding
19 appropriately to changes in the work setting; and
20 (4) “category IV” impairment (i.e., precluding performance of 15 percent
21 or more of a workday, not including normal breaks, or limitations due
22 to substance or alcohol abuse) in maintaining attention and
23 concentration for extended periods of time, working in coordination
24 and in proximity to others without being distracted by them, and
25 completing a normal workday or workweek without interruptions
26 from psychologically based symptoms and performing at a consistent
27 pace without unreasonable rest periods, interacting appropriately with
28 the general public, accepting instructions and responding
13
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 14 of 20 Page ID #:1137
1 appropriately to criticism from supervisors, and traveling in
2 unfamiliar places or using public transportation. (AR 1046-47).
3 Dr. Arguota also opined that plaintiff would be off task for more than 30
4 percent of a workday,7 would miss five or more days of work per month, would be
5 unable to complete an eight-hour workday five or more days per month, would be
6 efficient for less than 50 percent of a workday, and that plaintiff would be unable
7 to work in a competitive work setting for eight hours a day, five days a week, for at
8 least six months. (AR 1048). Dr. Arguota explained:
9 Mr. [S] has been under my care for mental health conditions since
10 February 7, 2019. Due to his seizure disorder, he was unable to work
11 which led to an exacerbation of [symptoms] of PTSD and MDD
12 [major depressive disorder] that had gone undiagnosed for likely
13 decades. The exacerbation in PTSD and MDD symptoms have [sic]
14 significantly negatively impacted his social and occupational
15 functioning. At this stage in his progress, he would be impeded by his
16 medical and mental health symptoms if he were to pursue
17 employment.
18 (AR 1049).
19 B. Pertinent Law
20 For claims filed after March 27, 2017 (such as plaintiff’s present claims),
21 new regulations govern the evaluation of medical opinion evidence. Under these
22 regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine
23 which opinions are the most “persuasive” by focusing on several factors:
24 (1) supportability; (2) consistency; (3) relationship with the claimant (including the
25 length of treatment, frequency of examinations, purpose of treatment, extent of
26 treatment, whether the medical source examined the claimant); (4) the medical
27
28 7The vocational expert testified that if a person with the limitations the ALJ found to exist
were also off task 20 percent of a typical workday, it would preclude all work. (AR 63-64).
14
Case 5:20-cv-02019-JC Document 22 Filed 08/12/22 Page 15of20 Page ID #:1138
1 || source’s specialty; and (5) “other” factors. See 20 C.F.R. §§ 404.1520c(c)(1)-(5),
2 || 416.920c(c)(1)-(5). The two most important factors in determining the
3 || persuasiveness of medical opinions are supportability and consistency with the
4 || evidence. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). ALJs must explain how
5 || they considered the factors of supportability and consistency, but need not explain
6 || how they considered any other factor. See 20 C.F.R. §§ 404.1520c(b),
7 || 416.920c(b).
8 Supportability means the extent to which a medical source supports
9 the medical opinion by explaining the “relevant. . . objective medical
10 evidence.” Consistency means the extent to which a medical opinion
11 is “consistent. . . with the evidence from other medical sources and
12 nonmedical sources in the claim.
13 || Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (internal citations
14 || omitted; citing 20 C.F.R. § 404.1520c(c)(1), (2)).
15 The new regulations also eliminated the term “treating source,” as well as
16 || the rule previously known as the treating source rule or treating physician rule,
17 || which formerly required special deference to the opinions of treating sources. See
18 ] 20 C.F.R. §§ 404.1520c, 416.920c; Woods v. Kijakazi, 32 F.4th at 792 (“The
19 || revised social security regulations are clearly irreconcilable with our caselaw
20 || according special deference to the opinions of treating and examining physicians
21 || on account of their relationship with the claimant.”). Even so, in evaluating
22 || medical opinion evidence “under the new regulations, an ALJ cannot reject an
23 || examining or treating doctor’s opinion as unsupported or inconsistent without
24 || providing an explanation supported by substantial evidence.” Woods v. Kijakazi,
25 || 32 F.4th at 792. Finally, the new regulations command that an opinion
26 || that a claimant is disabled or not able to work is “inherently neither valuable nor
27 || persuasive,” and an ALJ need not provide any analysis about how such evidence is
28 || considered. See 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3).
15
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1 As explained below, while the ALJ appears to have followed these new
2 regulations in making the relevant findings based on the available record,
3 substantial evidence does not support the ALJ’s resultant residual functional
4 capacity determination.
5 C. Analysis
6 In determining plaintiff’s residual functional capacity, the ALJ found
7 “unpersuasive” the state agency physician’s opinions, which had found insufficient
8 evidence to evaluate plaintiff’s claims initially, and plaintiff’s mental conditions
9 non-severe on reconsideration. (AR 29-31). The ALJ reasoned that the consultants
10 did not have an opportunity to review all the evidence of record, which reflected
11 that plaintiff had difficulty interacting with others at the VA, and plaintiff’s
12 struggles with homelessness and adapting in certain situations. See AR 31 (ALJ
13 observing, however, that plaintiff was normally able to deescalate situations with
14 minimal therapy, and had fair to good insight and judgment even when
15 experiencing exacerbated symptoms). The ALJ concluded, “I find the residual
16 functional capacity herein adequately addresses his impairments.” (AR 31).8
17 The ALJ found “partially persuasive” Dr. Argueta’s opinion, which had
18 found that plaintiff would have significant limitations of disabling severity based
19 on treatment post-dating the record the state agency physicians reviewed, given
20
21
8To the extent plaintiff’s neuropsychology consultation with Drs. Lupas and Hinkin,
22
which resulted in recommendations that plaintiff take breaks while working on tasks for
23 extended periods of time, reduce distractions and work in a quiet, uncluttered, uninterrupted
area, with a note that plaintiff may have trouble and become frustrated in situations requiring
24 flexibility and adaptation (see AR 519), could be construed as a medical opinion, the ALJ found
their opinion “partially persuasive” as inconsistent with plaintiff’s reported ability during
25
occupational therapy building a model airplane to work without frequent breaks, and plaintiff’s
26 reported normal attention and concentration on mental status examinations. (AR 32). The ALJ
found, consistent with their opinion, that plaintiff would have difficulties in adaptation, but given
27 plaintiff’s normal mental status exams and improvement with therapy, the ALJ concluded that
28 the residual functional capacity the ALJ adopted adequately addressed plaintiff’s mental
impairments. (AR 32).
16
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1 that plaintiff experienced “exacerbation in mental health difficulties” primarily
2 associated with his diagnosed seizure disorder (which led to his inability to drive
3 and work and to his homelessness). (AR 31-32). However, the ALJ found Dr.
4 Argueta’s opinion was not entirely supported by the longitudinal record or Dr.
5 Argueta’s treatment of plaintiff. The ALJ cited: (1) Dr. Argueta’s conservative
6 treatment of plaintiff without any regular ongoing medication management or
7 inpatient hospitalization as inconsistent with the significant limitations Dr. Argueta
8 assessed;9 (2) Dr. Argueta’s opinion purportedly lacking any consideration for
9 plaintiff’s substance abuse troubles;10 (3) plaintiff’s “primarily normal” mental
10 status findings, reported improvement with therapy, often normal insight and
11 judgment, and ability to talk his way through angry or irritable moods; and
12 (4) plaintiff’s neurological and psychological examinations that did not reveal any
13 significant cognitive deficits, and the fact he was able to work through
14 occupational therapy building an airplane, despite plaintiff’s complaints of
15 difficulties with memory and attention/concentration. (AR 32).
16 The ALJ did not explain which, if any, of Dr. Argueta’s specific limitations
17 for plaintiff the ALJ may have found persuasive. Rather, the ALJ simply
18 concluded:
19 . . . I found the evidence supported limitations in interacting with the
20 general public in recognition of those periods of exacerbation.
21 Further, given the claimant has struggled to adapt to his diagnoses,
22
23 9The ALJ incorrectly described Dr. Argueta as a psychiatrist (rather than a psychologist)
(see AR 31, 1049). A psychiatrist has the authority to prescribe medications, whereas a
24 psychologist does not. See, e.g., Sandra H. v. Saul, 2021 WL 529787, at *6 (D. Or. Feb. 11,
25 2021) (noting same). Substantial evidence does not support this reason as it applies to Dr.
Argueta’s treatment, but it may support this reason as it may apply to plaintiff’s mental health
26 treatment in general.
27 10While Dr. Argueta did not mention substance or alcohol abuse, the form she completed
28 did indicate that certain of the limitations she provided were to not include those from substance
or alcohol abuse. (AR 1046).
17
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1 causing an increase in symptoms, as well as his reported anxiety with
2 changes, I found it reasonable to limit him to a work setting where
3 changes are infrequent and explained and introduced gradually. . . . I
4 find the rating of severe and some limitations is consistent with his
5 history of treatment, noted exacerbations and some reported
6 symptoms, balanced against other normal findings.
7 (AR 32).
8 It appears that the ALJ defined plaintiff’s residual functional capacity for
9 work with some mental limits (i.e., understanding, remembering, and applying
10 simple and detailed instructions, and concentrating and persisting for extended
11 periods to complete simple and detailed work tasks with routine supervision;
12 occasionally interacting with the general public (and no noted limitations re
13 interacting with coworkers or supervisors); and work in a routine work setting
14 where changes are infrequent, well explained and introduced gradually) based at
15 least in part on the ALJ’s lay interpretation of the medical record “in recognition of
16 periods of exacerbation.” Compare AR 21, 32 with AR 1046-48 (Dr. Argueta’s
17 arguably inconsistent opinion finding “category IV” impairment (15 percent or
18 more of an 8-hour workday) in working in coordination and in proximity to others
19 without being distracted by them, and completing a normal workday or workweek
20 without interruptions from psychologically based symptoms and performing at a
21 consistent pace without unreasonable rest periods, interacting appropriately with
22 the general public, accepting instructions and responding appropriately to criticism
23 from supervisors). No medical source reviewing the updated medical record,
24 which the ALJ acknowledged evidenced “some difficulty interacting with VA
25 police officers as well as roommates or other veterans in his programs” (AR 31),
26 found plaintiff would be capable of working with coworkers or supervisors without
27 limitation.
28 ///
18
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1 An ALJ’s decision must be supported by substantial evidence. See
2 || 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to
3 || any fact, if supported by substantial evidence, shall be conclusive. ...”). An ALJ
4 || cannot properly rely on the ALJ’s own lay knowledge to make medical
5 || interpretations of examination results or to determine the severity of medically
6 || determinable impairments. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir.
7 || 1999); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Balsamo v. Chater,
8 | 142 F.3d 75, 81 (2d Cir. 1998); see also Rohan v. Chater, 98 F.3d 966, 970 (7th
9 || Cir. 1996) (“‘ALJs must not succumb to the temptation to play doctor and make
10 || their own independent medical findings”); Day v. Weinberger, 522 F.2d 1154,
11 | 1156 (9th Cir. 1975) (an ALJ is forbidden from making his or her own medical
12 || assessment beyond that demonstrated by the record); McAnally v. Berryhill, 2020
13 | WL 1443734, at *6 (S.D. Cal. March 25, 2020) (“In making an RFC
14 || determination, an ALJ may not act as his own medical expert as he is simply not
15 || qualified to interpret raw medical data in functional terms’) (citations and
16 || quotations omitted).
17 In the present case, absent expert medical assistance, and in light of the
18 || treatment evidence suggesting plaintiff's mental condition worsened as reflected
19 || by his interactions with others at the VA, the ALJ could not competently translate
20 || the updated medical evidence into a physical residual functional capacity
21 || assessment. See Tackett v. Apfel, 180 F.3d at 1102-03 (ALJ’s residual functional
22 || capacity assessment cannot stand in the absence of evidentiary support); see
23 || generally Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (ALJ’s duty
24 || to develop the record further is triggered “when there is ambiguous evidence or
25 || when the record is inadequate to allow for the proper evaluation of the evidence’)
26 || (citation omitted); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[ T]he
27 || ALJ has a special duty to fully and fairly develop the record to assure the
28 || claimant’s interests are considered. This duty exists even when the claimant is
19
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1 represented by counsel.”). It thus appears that substantial evidence does not
2 support the ALJ’s conclusion that the limitations the ALJ found to exist adequately
3 account for Plaintiff’s severe mental impairments. The state agency physician
4 opinions finding no mental limitations do not serve as substantial evidence.
5 Compare Sonja S. R. v. Berryhill, 2018 WL 3460165, at *6-7 (C.D. Cal. July 16,
6 2018) (substantial evidence failed to support residual functional capacity
7 determination where state agency physicians’ opinions did not consider later
8 medical evidence supporting additional impairments and reflecting “potentially
9 long-term conditions,” and the ALJ had rendered ALJ’s own lay interpretation of
10 the updated medical record).
11 V. CONCLUSION
12 For the foregoing reasons, the decision of the Commissioner of Social
13 Security is REVERSED in part, and this matter is REMANDED for further
14 administrative action consistent with this Opinion.11
15 LET JUDGMENT BE ENTERED ACCORDINGLY.
16 DATED: August 12, 2022
17 ______________/s/___________________
Honorable Jacqueline Chooljian
18
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
11The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s
25
decision, except insofar as to determine that a reversal and remand for immediate payment of
26 benefits would not be appropriate. When a court reverses an administrative determination, “the
proper course, except in rare circumstances, is to remand to the agency for additional
27 investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16
28 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary
remand rule” applies in Social Security cases) (citations omitted).
20