Glen Caldwell, Jr. v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN R. CALDWELL, Jr., No. 19-17358
Plaintiff-Appellant, D.C. No. 4:18-cv-03890-JSW
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted December 7, 2020**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
Glen Caldwell, Jr. appeals the district court’s affirmance of the denial of his
application for disability benefits and supplemental social security income. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s order
affirming a denial of benefits by the Commissioner de novo, Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and review a Commissioner’s decision
for legal error and substantial evidence. Benton ex rel. Benton v. Barnhart, 331
F.3d 1030, 1035 (9th Cir. 2003). “Substantial evidence means more than a mere
scintilla, but less than a preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Desrosiers v.
Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and
internal quotation marks omitted). “Where evidence is susceptible to more than
one rational interpretation, the ALJ’s decision should be upheld.” Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007) (citations and internal quotation marks omitted).
However, we must consider “the entire record as a whole, weighing both the
evidence that supports and the evidence that detracts from the Commissioner’s
conclusion, and may not affirm simply by isolating a specific quantum of
supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)
(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).
At issue here is whether the ALJ explained with sufficient clarity why both
examining physician Dr. Franklin’s opinion and Caldwell’s testimony concerning
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his condition were given little weight. We conclude that the ALJ has failed to do
so, and we reverse.
1. Examining physician1 Dr. Lesleigh Franklin, Ph.D., signed off on an
opinion about the severity of Caldwell’s mental health symptoms. This report
included the diagnostic impression that Caldwell suffered from schizoaffective
disorder, PTSD, other substance use disorder, relational problems, occupational
problems, and low income; it noted functional impairment in visuospatial abilities,
immediate memory, delayed memory, attention and concentration, and executive
functioning; and it said that Caldwell has neuropsychological impairments “that
might be roadblocks to his ability to maintain employment.” The report indicates
that Caldwell has marked and extreme limitations on the abilities he would need in
order to do work required for unskilled jobs.
An ALJ may reject an examining physician’s controverted opinion by
providing specific and legitimate reasons supported by substantial evidence, and
may reject the uncontroverted opinion of an examining physician by providing
clear and convincing reasons supported by substantial evidence. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “An ALJ can satisfy the
1
The Ninth Circuit distinguishes between treating physicians, examining
physicians, and nonexamining physicians. Garrison, 759 F.3d at 1012 (quoting
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Both parties refer to Dr.
Franklin’s opinion as an examining source.
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‘substantial evidence’ requirement by ‘setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating his interpretations
thereof, and making findings.’” Garrison, 759 F.3d at 1012 (quoting Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998)). However, “[w]here the purported
existence of an inconsistency is squarely contradicted by the record, it may not
serve as the basis for the rejection of an examining physician’s conclusions.”
Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996).
The ALJ gave little weight to Dr. Franklin’s opinion for three reasons: (1) “it
is overly restrictive and unsupported by the weight of the evidence” where
Caldwell’s routine mental status findings were “objectively unremarkable”; (2)
Caldwell’s function reports “show he takes public transportation, shops for food,
attends to his appointments, and takes care of his hygiene and grooming” and these
activities “indicate that he is more capable in his ability to sustain concentration
and pace than determined in this assessment”; and (3) the “ability to be around
others at stores and on public transportation” as well as interact appropriately with
examiners and office staff “contradict the marked limitation found in the
assessment.”
We find that the ALJ failed to give specific and legitimate reasons supported
by substantial evidence. The ALJ cited broadly to seven exhibits for the conclusion
that Caldwell’s “routine mental status findings were objectively unremarkable” and
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gave no further explanation, though the record itself shows several examinations in
which other practitioners reported that Caldwell was “not within normal limits” in
several areas, and other examinations in which he reported hearing voices or
having other symptoms. The Commissioner argues that where the ALJ made
earlier findings as to unremarkable mental status examinations, a reviewing court
could easily discern the ALJ’s reasoning. However, “[l]ong-standing principles of
administrative law require us to review the ALJ’s decision based on the reasoning
and factual findings offered by the ALJ—not post hoc rationalizations that attempt
to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc.
Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). Even assuming that the ALJ’s
reasoning was easily discernible, however, the ALJ’s earlier descriptions of
unremarkable status examinations did not take into account the record as a whole,
and we cannot affirm based only on the selective evidence that supports the
Commissioner. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
Similarly, though the ALJ listed Caldwell’s daily activities as a reason to reject Dr.
Franklin’s opinion because they “indicate that he is more capable in his ability to
sustain concentration and pace than determined in this assessment,” Caldwell
struggled to complete many of the activities listed by the ALJ.2 Finally, though the
2
The ALJ stated Caldwell attends appointments though he was discharged from
Alameda County Behavioral Health Care Services for failing to show up to several
appointments in a row and reported confusion on getting his prescriptions. The
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ALJ concluded that Caldwell’s ability to be around others in certain situations
contradicted Dr. Franklin’s opinion, it is not clear how an ability to sometimes
interact with others appropriately contradicts an opinion that acknowledged that
Caldwell behaved appropriately during his appointment but concluded that he
would not be able to do so for work.
2. When making a credibility determination, the ALJ must engage in a
two-step analysis. Garrison, 759 F.3d at 1014. First, the ALJ must determine
whether the claimant presented objective medical evidence of an impairment that
could reasonably be expected to produce some degree of the pain or symptoms
alleged. Id. If so, and there is no evidence of malingering, the ALJ may reject the
claimant’s testimony about the severity of the symptoms only by offering specific,
clear and convincing reasons for doing so. Id. at 1014-15. “[A]n ALJ may weigh
inconsistencies between the claimant’s testimony and his or her conduct, daily
activities, and work record, among other factors.” Bray, 554 F.3d at 1227.
The ALJ erred by rejecting Caldwell’s testimony about the severity of his
symptoms without providing specific, clear and convincing reasons for doing so.
We agree with the district court that the ALJ erred in not making specific findings
to support the conclusion that Caldwell’s daily activities undercut his subjective
ALJ also listed Caldwell’s hygiene and grooming as contradictory to Dr.
Franklin’s opinion, yet there are examples of poor grooming in the record.
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testimony. Nor was the ALJ’s broad statement that Caldwell’s work history
“raises a question as to whether the claimant’s continuing unemployment is
actually due to medical impairments” clear and convincing. Finally, though the
ALJ reasoned that “the medical records reveal that the medications have been
relatively effective in controlling the claimant’s symptoms,” other parts of the
record indicate only brief periods of improvement. The ALJ thus discounted
Caldwell’s credibility without sufficient analysis. See, e.g., Brown-Hunter, 806
F.3d at 489 (“To ensure that our review of the ALJ’s credibility determination is
meaningful, and that the claimant’s testimony is not rejected arbitrarily, we require
the ALJ to specify which testimony she finds not credible, and then provide clear
and convincing reasons, supported by evidence in the record, to support that
credibility determination”).
3. We have considered and reject all other claims raised by Caldwell.
Because the issues of Caldwell’s credibility and the weight given to Dr. Franklin’s
opinion are integral to the ALJ’s determination of Caldwell’s residual functional
capacity, we reverse and remand to the Commissioner of Social Security for
further determinations consistent with this memorandum disposition.
REVERSED AND REMANDED
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