Nordquist v. Astrue

Filing 25

Order on Motion for Miscellaneous Relief

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

CHARLES NORDQUIST,
Plaintiff,
vs.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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3:06-cv-00173 JWS
ORDER AND OPINION
[Re:

Motion at Docket 21]

I. MOTION PRESENTED
At docket 21, plaintiff Charles Nordquist moves for judgment pursuant to
sentence four of 42 U.S.C. § 405(g), reversing the final decision of the Commissioner of
Social Security and remanding for an award of benefits, or alternatively, for further
administrative proceedings. At docket 23, defendant Michael Astrue, Commissioner of
Social Security (“Commissioner”), opposes the motion. Plaintiff replies at docket 24.
Oral argument was not requested, and it would not assist the court.
II. BACKGROUND
On February 18, 2004, plaintiff Charles Nordquist protectively applied for social
security income (“SSI”) and disability insurance benefits (“DIB”) under Titles XVI and II

of the Social Security Act (“the Act”).1 Nordquist alleged a disability onset date of
February 17, 2001, and identified his disabling conditions as “depression, brain injury,
personality disorder, and increased anxiety.”2 Nordquist’s insured status report
indicates that he was insured on the alleged disability onset date and that his insured
status for DIB ended on December 31, 2006.3 The record also shows that Nordquist
has a college degree in music education and a masters degree in music performance;
suffered brain injuries as a result of two separate accidents; and has worked as a van
driver, cashier, janitor, substitute music teacher, and graduate assistant/office clerk
during the past fifteen years.
The Social Security Administration (“SSA”) denied Nordquist’s application.4 The
SSA’s decision was upheld on reconsideration. Nordquist had a hearing before an
Administrative Law Judge (“ALJ”) on May 18, 2005. At the time of the hearing,
Nordquist was fifty-eight years old. At the hearing, Nordquist testified that in addition to
his mental impairments, he also has back pain and problems with his feet, including
plantar fasciitis. On November 23, 2005, the ALJ issued a decision finding that
Nordquist is not entitled to DIB and not eligible for SSI under the Act.5
At step one, the ALJ found that Nordquist has not engaged in substantial gainful
activity since the alleged disability onset date.6 At step two, the ALJ found that
Nordquist has two impairments that are “severe” within the meaning of the Act, namely
“a traumatic brain injury from [a plane crash in] 1975, motor vehicle accident in 1959,

1

Administrative Record (“AR) at 281, doc. 12. Hereinafter, references to the
administrative record will simply include AR and the bates number.
2

AR 24.

3

AR 320.

4

AR 260.

5

AR 32.

6

AR 30.

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and low back pain.”7 The ALJ further found that while Nordquist has been diagnosed
with depression, “the evidence indicates that this was mild, and thus, did not
significantly limit the claimant’s ability to perform basic work activities.”8 At step three,
the ALJ found that Nordquist’s impairments, alone or in combination, do not meet or
equal a listed impairment.9
At step four, the ALJ determined that Nordquist retains the residual functional
capacity (“RFC”) to perform “medium work,” and that due to his brain injury, “the
claimant has moderate limitations regarding his abilities to understand and carry out
instructions, pay attention, work with others, interact with public, get along with coworkers, and adapt to change in the work setting.”10 Given the RFC outlined above and
based on the testimony of the vocational expert (“VE”), the ALJ concluded that
Nordquist cannot return to his past relevant work “due to the limitations regarding
contact with the public.”11
At step five, the ALJ found that Nordquist is an individual of “advanced age” as
defined by 20 C.F.R. §§ 404.1563 and 416.963, but that “transferable skills are not at
issue in this case.”12 Based on the VE’s testimony and the record as a whole, the ALJ
found that “considering the claimant’s age, educational background, work experience,
and residual functional capacity, he is capable of making a successful adjustment to
work that exists in significant numbers in the national economy” as a laundry folder,
which is light unskilled work; dishwasher, which is medium unskilled work; and a hand
packager, which is medium unskilled work.13

7

AR 26.

8

AR 27.

9

AR 27.

10

AR 27.

11

AR 29.

12

AR 29.

13

AR 30.

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On May 24, 2006, the SSA Appeals Council denied Nordquist’s request for
review of the ALJ’s decision.14 On July 26, 2006, Nordquist filed the underlying
complaint seeking judicial review of the ALJ’s decision. Nordquist now requests the
court to reverse the ALJ’s decision and to remand for an award of benefits, or
alternatively, for further administrative proceedings.
III. STANDARD OF REVIEW
For purposes of the Social Security Act, a “disability” is defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected...to last for a continuous period of
not less than 12 months.”15 A person is not disabled if he or she is capable of engaging
“in any...kind of substantial gainful work which exists in the national economy.”16
Disability claims are evaluated using the five-step sequential analysis which is set
forth in 20 C.F.R. § 404-1520.17 Upon denial of disability benefits, a claimant may
request the SSA Appeals Council to review the ALJ’s decision.18 Where, as here, the
14

AR 11.

15

42 U.S.C. § 423(d)(1)(A).

16

42 U.S.C. § 423(d)(2).

17

“The Commissioner follows a five-step sequential evaluation process in assessing
whether a claimant is disabled.
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is
found not disabled. If not, proceed to step two.
Step two: Does the claimant have a ‘severe’ impairment? If so, proceed to step three. If
not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or equal
an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is
automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not
disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other
work? If so, the claimant is not disabled. If not, the claimant is disabled.”
McCartey v. Massanari, 298 F.3d 1072, 1075 n.6 (9th Cir. 2002) (citing 20 C.F.R.
§ 404.1520).
18

20 C.F.R. § 404.967.

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Appeals Council denies a request for review, the decision of the ALJ represents the final
decision of the Commissioner.19 The claimant may then seek judicial review of the
ALJ’s decision by the district court.20
On de novo review, the district court may enter, upon the pleadings and a
transcript of the record, a judgment affirming, modifying, or reversing the ALJ’s decision,
with or without remanding the case for a rehearing.21 The ALJ’s decision must be
upheld if it is supported by substantial evidence and the ALJ applied the correct legal
standards.22 “Substantial evidence is ‘more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”23 When evidence supports either confirming or
reversing the ALJ’s decision, the reviewing court may not substitute its judgment for that
of the ALJ.24
IV. DISCUSSION
Nordquist argues that the ALJ’s decision denying disability benefits is not
supported by substantial evidence in the record and that the ALJ erred at steps two and
five of the sequential analysis. Nordquist specifically argues that the ALJ erred by
rejecting the treating psychiatrist’s opinion, finding Nordquist’s testimony regarding his
limitations “not entirely credible,” and misinterpreting the VE’s testimony. The
Commissioner argues that the court should uphold the ALJ’s decision finding Nordquist
not disabled because the ALJ properly evaluated the medical evidence and substantial
evidence supports the ALJ’s step five decision. The court examines each of plaintiff’s
assignments of error below.
19

Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193 n.1 (9th Cir.
2004) (citing 20 C.F.R. § 404.981).
20

42 U.S.C. § 405(g).

21

Id.

22

Howard v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2001).

23

Id. (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

24

Batson, 359 F.3d at 1196.

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Step Two Analysis
Nordquist first argues that the ALJ erred at step two in evaluating claimant’s
mental impairments by combining Nordquist’s “cognitive disorder, affective disorder,
and personality disorder diagnosis together under the label ‘brain injury.’”25 In
evaluating mental impairments pursuant to 20 C.F.R. § 404.1520a, the ALJ must first
evaluate a claimant’s symptoms, signs, and laboratory findings to determine whether
the claimant has a medically determinable mental impairment.26 The ALJ then rates the
degree of functional limitation resulting from the impairment in the following areas:
“Activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation.”27 After rating the degree of functional limitation, the ALJ
determines the severity of the claimant’s mental impairment(s).28 Finally, the ALJ’s
written decision “must show the significant history, including examination and laboratory
findings, and the functional limitations that were considered in reaching a conclusion
about the severity of the mental impairment(s)” and “must show a specific finding as to
the degree of limitation in each of the functional areas described in [§ 404.1520a(c)].”29
Here, the ALJ found that Nordquist’s “traumatic brain injury” was a medically
determinable severe impairment, but that Nordquist’s depression did not constitute a
medically determinable severe impairment. The ALJ’s decision specifically states that
“while the record includes a diagnosis of depression, the evidence indicates that this
was mild, and thus, did not significantly limit the claimant’s ability to perform basic work
activities.”30 The ALJ’s decision does not discuss Nordquist’s claims of a personality
disorder and increased anxiety.

25

Doc. 21 at 17.

26

20 C.F.R. § 404.1520a(b).

27

20 C.F.R. § 404.1520a(c).

28

20 C.F.R. § 404.1520a(d).

29

20 C.F.R. § 404.1520a(e).

30

AR 27.

-6-

The evidence supports a finding that in addition to a cognitive disorder, Nordquist
has the medically determinable mental impairment of major depressive disorder, and
possibly a personality disorder. While the ALJ’s decision discusses the functional
limitations resulting from Nordquist’s cognitive disorder, the ALJ failed to rate the degree
of functional limitations caused by Nordquist’s major depressive disorder and alleged
personality disorder in activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation as required under
§ 404.1520a(c), nor did he rate the severity of these medically determinable mental
impairments as required under § 1520a(d). The ALJ also failed to document his
application of the technique for evaluating mental impairments in his decision as is
required at step two under § 404.1520a(e). Because the ALJ did not evaluate the
above mental impairments according to the technique set forth in 20 C.F.R.
§ 404.1520a, the ALJ did not apply the proper legal standard in evaluating Nordquist’s
mental impairments.
Treating Psychiatrist’s Opinion
Nordquist next argues that the ALJ erred in rejecting the opinion of Dr. Ellen
Halverson, Nordquist’s treating psychiatrist. Dr. Halverson began treating Nordquist in
July 2003. At that time, Halverson diagnosed Nordquist with recurrent major
depression, cognitive disorder, and a history of closed head injuries.31 Dr. Halverson
noted that while psychological and neurological tests indicate that Nordquist does well
cognitively, the evidence also shows that he has a frontal lobe injury, problems with
initiating and sequencing complex tasks, lapses in social judgment, greater impulsivity,
and a lack of insight.32
In an annual psychiatric evaluation conducted in March 2004, Dr. Halverson
indicated that Nordquist had been treated with medication for major depression “really
without any effectiveness,”33 and that he had stopped taking the medication. Halverson
31

AR 560.

32

AR 557.

33

AR 516.

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stated that she suspected Nordquist has recurrent major depression, but also
“question[ed] an element of Cognitive Disorder NOS versus Organic Affective Disorder,”
and Organic Personality Disorder. Halverson determined that Nordquist had a Global
Assessment of Functioning (“GAF”) level of 50.34 Her evaluation also indicated that
Nordquist “feels stonewalled by Vocational Rehab and admittedly is somewhat of a
somaticizer and tends to focus on physical symptomology.”35
In a Mental Residual Functional Capacity Questionnaire completed in March
2005, Dr. Halverson found that Nordquist was “unable to meet competitive standards” in
the following areas: work in coordination with or proximity to others without being unduly
distracted; complete a normal workday and workweek without interruptions from
psychologically based symptoms; accept instructions and respond appropriately to
criticism from supervisors; respond appropriately to changes in a routine work setting;
and deal with stress of semiskilled and skilled work.36 “Unable to meet competitive
standards” is defined as meaning that a claimant “cannot satisfactorily perform an
activity independently, appropriately, effectively and on a sustained basis in a regular
work setting.”37 Dr. Halverson also found that Nordquist had an extreme limitation in
dealing with normal work stress. Dr. Halverson further opined that Nordquist’s
psychiatric difficulties “keep him from dealing effectively on an ongoing basis [with] his
mild cognitive dysfunction. He is stuck (frozen) in time, from/with his abilities prior to his
airplane crash back in the 70's.”38
“In disability benefits cases, physicians typically provide two types of opinions:
medical opinions that speak to the nature and extent of a claimant’s limitations, and
opinions concerning the ultimate issue of disability, i.e., opinions about whether a

34

AR 517.

35

AR 516.

36

AR 605-607.

37

AR 605.

38

AR 606.

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claimant is capable of any work, given his or her limitations.”39 “Under the regulations, if
a treating physician’s medical opinion is supported by medically acceptable diagnostic
techniques and is not inconsistent with other substantial evidence in the record, the
treating physician’s opinion is given controlling weight.”40 The regulations further
provide that the “opinions of treating doctors should be given more weight than opinions
of doctors who do not treat the claimant.”41 “To reject an uncontradicted opinion of a
treating or examining doctor, an ALJ must state clear and convincing reasons that are
supported by substantial evidence.”42 “Even if the treating doctor’s opinion is
contradicted by another doctor, the Commissioner may not reject this opinion without
providing ‘specific and legitimate reasons’ supported by substantial evidence in the
record for so doing.”43
In his decision, the ALJ states that he assigned Dr. Halverson’s opinion “little
weight” on the grounds that “Dr. Halverson’s general mental limitations, as well as her
ultimate conclusion, are inconsistent with the record as a whole.”44 The ALJ specifically
stated that Dr. Halverson’s opinion in March 2005 that “multiple psychiatric limitations
prevented the claimant from performing competitive work" was inconsistent with her
assessment that “claimant was a ‘somaticizer.’”45 Furthermore, instead of giving
Dr. Halverson’s opinions regarding Nordquist’s limitations controlling weight, the ALJ
found that Nordquist has moderate limitations in his “abilities to understand and carry
out instructions, pay attention, work with others, interact with public, get along with co-

39

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

40

Id.

41

Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).

42

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

43

Lester v. Chater, 830 F.3d 821, 830 (9th Cir. 1995).

44

AR 28.

45

AR 28.

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workers, and adapt to change in the work setting,”46 presumably based on the Mental
Residual Functional Capacity Assessment form completed by Dr. Feigin, a Disability
Determination Services (“DDS”) examining psychiatrist.
Nordquist argues that Dr. Halverson’s statement “that the Claimant focuses on
his physical symptomology is totally consistent with her opinion that he does not have
insight into his mental problems and does not have realistic expectations” of his
abilities.47 The court concurs.48 Moreover, the court finds that the ALJ failed to provide
specific and legitimate reasons supported by substantial evidence in the record for
rejecting the treating psychiatrist’s opinion regarding Nordquist’s functional limitations,
and adopting an examining psychiatrist’s opinions regarding Nordquist’s functional
limitations.
The ALJ’s statement that Dr. Halverson’s assessment of Nordquist’s “general
mental limitations, as well as her ultimate conclusion, are inconsistent with the record as
a whole” is not supported by substantial evidence. The record shows that all of the
treating and examining psychiatrists agree that Nordquist has both a cognitive disorder
and an affective disorder. In addition, Dr. Halverson, two examining psychiatrists, and
an examining clinical psychologist suspect that Nordquist may also have a personality
disorder.49 Most importantly, the majority of treating and examining physicians agree
that while Nordquist is intelligent and well-educated, he has difficulties sustaining
employment as a result of his combined mental impairments. For the reasons stated
above, the ALJ erred in rejecting the treating psychiatrist’s opinion regarding Nordquist’s
functional limitations and their effects on his ability to sustain employment.

46

AR 29.

47

Doc. 21 at 19.

48

By definition, a “somaticizer” is a person whose physical illnesses or physical
symptoms are caused by neurosis.
49

AR 167, 194, 451, 517.

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Claimant’s Testimony
Nordquist next argues that the ALJ erred in finding that Nordquist’s “allegations
regarding his limitations are not totally credible.”50 “While an ALJ is responsible for
determining the credibility of a claimant, an ALJ cannot reject a claimant’s testimony
without giving clear and convincing reasons.”51 “In addition, the ALJ must specifically
identify the testimony she or he finds not to be credible and must explain what evidence
undermines the testimony.”52 Furthermore, the evidence upon which the ALJ relies
must be substantial.53
Here, the ALJ determined that Nordquist was “credible to the extent that he
alleged he would experience some limitations,” and found that Nordquist had moderate
limitations in his mental capacity.54 The court finds that the ALJ’s assessment of
Nordquist’s credibility is not supported by substantial evidence, because the ALJ failed
to properly assess and consider the degree of functional limitations resulting from
Nordquist’s multiple mental impairments and failed to credit the treating psychiatrist’s
opinion regarding the extent of Nordquist’s functional limitations.
Vocational Expert Testimony
In reaching a finding of “not disabled,” the ALJ purports to rely on the VE’s
testimony that a person capable of a medium level of exertion with moderate limitations
in mental capacity could work as a laundry folder, dishwasher, and hand packager.
Nordquist argues that the ALJ misinterpreted the VE’s testimony and asserts that the
VE’s testimony actually supports Nordquist’s disability claim. The court agrees.
In the hypothetical posed to the VE, the ALJ asked the VE to assume an
individual who was capable of a medium level of exertion but had moderate limitations

50

AR 31.

51

Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001).

52

Id.

53

Id.

54

AR 28.

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in his abilities to understand and remember detailed instructions, carry out detailed
instructions, maintain attention and concentration for extended periods, work in
coordination with or proximity to others without being distracted by them, interact
appropriately with the general public, accept instructions and respond appropriately to
criticism from supervisors, get along with coworkers or peers without distracting them or
exhibiting behavioral extremes, and respond appropriately to changes in the work
setting.
The VE testified that moderate limitations in the above areas could affect a
person’s ability to maintain employment. Upon questioning from Nordquist’s counsel,
the VE further testified that “moderate limitations” can impact anywhere from 1/3 up to
2/3 of a work day, and that a person would “most likely not” be able to sustain
employment if “for 1/3 of the day the person’s ability to sustain concentration, attention
and pace is affected so that they either make mistakes or they can’t keep the pace of
the work.”55
Because the ALJ’s decision denying plaintiff’s application for disability benefits is
not supported by substantial evidence nor free of legal error, the court reverses the
ALJ’s decision denying benefits. Under sentence four of 42 U.S.C. § 405(g), the court
has discretion to remand a case for either additional evidence and findings or to award
benefits.56 The court “may direct an award of benefits where the record has been fully
developed and where further administrative proceedings would serve no useful
purpose.”57 “Such a circumstance arises when: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting the claimant’s evidence; (2) there are no outstanding
issues that must be resolved before a determination of disability can be made; and (3) it
is clear from the record that the ALJ would be required to find the claimant disabled if he

55

AR at 669.

56

Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996).

57

Id.

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considered the claimant’s evidence.”58 A remand for benefits is particularly indicated
where a claimant has already experienced lengthy, burdensome litigation.59
A remand for immediate payment of benefits is appropriate in this matter
because the ALJ failed to provide legally sufficient reasons for rejecting the opinion of
the treating psychiatrist, there no are no outstanding issues that must be resolved
before a determination of disability can be made, and it is clear from the record that the
ALJ would be required to find Nordquist disabled if he credited the treating psychiatrist’s
opinion. In addition, the court notes that Nordquist is now sixty years of age, it’s been
over three years since Nordquist applied for benefits, and “further delays at this point
would be unduly burdensome.”60
Moreover, because Nordquist is now close to retirement age, the Commissioner
must satisfy a more stringent legal standard before denying him benefits.61 “Agency
regulations recognize that an older claimant will generally be unable to compete
effectively against younger persons in the job market unless [he] has some
advantage.”62 Even if the court did remand, it is highly unlikely that the Commissioner
would be able to sustain his burden of showing that Nordquist is highly marketable as a
dishwasher, laundry folder, or hand packager.

58

McCartey, 298 F.3d 1076.

59

Vertigan v. Halter, 260 F.3d 1044, 1053 (9th Cir. 2001) .

60

Terry v. Sullivan, 903 F.3d 1273, 1280 (9th Cir. 1990).

61

Id. at 1279.

62

Id. at 1277.

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V. CONCLUSION
For the reasons set out above, plaintiff’s motion at docket 21 is GRANTED, and
this matter is REMANDED for an award of benefits with a disability onset date of
February 17, 2001.
DATED at this 23rd day of May 2007.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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