Gurnett v. Colvin

Filing 35

DECISION AND ORDER: granting Docket 1 in part, the commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings (see order for full details). Signed by Judge Sharon L. Gleason on 09/30/2016. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MICHAEL S. GURNETT,
Plaintiff,
v.

Case No. 3:15-cv-00093-SLG

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

DECISION AND ORDER
Michael Scott Gurnett filed an application for Disability Insurance Benefits
(“disability insurance”) and Supplemental Security Income (“SSI”) under Titles II and XVI
of the Social Security Act (“the Act”) respectively, 1 alleging disability beginning October
11, 2007. 2 Mr. Gurnett has exhausted his administrative remedies and seeks relief from
this Court. 3 He is self-represented in this appeal. The Court interprets his appeal to
argue that the determination by the Commissioner of the Social Security Administration
(“Commissioner”) that he is not disabled, within the meaning of the Act, is not supported
by substantial evidence and the Administrative Law Judge (“ALJ”) committed legal

1

The Court uses the term “disability benefits” to include both disability insurance and SSI.

2

Administrative Record (“A.R.”) 240, 242; see also Docket 26 at 3.

3

Docket 1; Docket 6-1; Docket 16 at 1.

errors. 4 Mr. Gurnett asks for a reversal of the Commissioner=s decision and a remand for
calculation of benefits. 5
Defendant filed an answer to the complaint and an answering brief in opposition. 6
Oral argument was not requested and was not necessary to the Court’s determination.
For the reasons set forth below, Claimant=s Motion for Remand at Docket 1 is GRANTED
IN PART, the Commissioner’s final decision is VACATED, and the case is REMANDED
to the SSA for further proceedings consistent with this decision.
I.

STANDARD OF REVIEW

A decision by the Commissioner to deny disability benefits will not be overturned
unless it either is not supported by substantial evidence or is based upon legal error. 7
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 8 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.” 9 In making its determination, the Court considers the evidence in its

4

See Docket 1.

5

Docket 30.

6

Docket 16 and Docket 26 respectively.

7

Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
8

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
9

Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
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entirety, weighing both the evidence that supports and that which detracts from the ALJ’s
conclusion. 10 If the evidence is susceptible to more than one rational interpretation, the
ALJ=s conclusion must be upheld. 11
II.

DETERMINING DISABILITY

The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental
disability. 12 In addition, SSI may be available to individuals who are age 65 or over, blind
or disabled, but who do not have insured status under the Act. 13 Disability is defined in
the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months. 14
The Act further provides:
An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect to any individual),
Awork which exists in the national economy@ means work which exists in

10

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

11

Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

12

42 U.S.C. § 423(a) (2012).

13

42 U.S.C. § 1381a (2012).

14

42 U.S.C. §§ 423(d)(1)(A) (2012), 1382c(a)(3)(A) (2012).

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significant numbers either in the region where such individual lives or in
several regions of the country. 15
The Commissioner has established a five-step process for determining disability
within the meaning of the Act. 16 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability. 17 If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five. 18 The
Commissioner can meet this burden in two ways: (a) “by the testimony of a vocational
expert,” or (b) “by reference to the Medical–Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app. 2.” 19 The steps, and the ALJ=s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity.”
The ALJ concluded Mr. Gurnett had not engaged in substantial gainful activity
since October 11, 2007. 20
Step 2. Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant=s physical
or mental ability to do basic work activities, and does not consider age, education, or work
experience. The severe impairment or combination of impairments must satisfy the

15

42 U.S.C. §§ 423(d)(2)(A) (2012), 1382c(a)(3)(B) (2012).

16

20 C.F.R. §§ 404.1520(a)(4) (2013), 416.920(a)(4) (2013).

17

Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting
Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999).

18

Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098.

19

Tackett, 180 F.3d at 1099.

20

A.R. 15.

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twelve-month duration requirement.

The ALJ determined Mr. Gurnett has the

following severe impairments: Horner’s syndrome, degenerative disk disease of
the cervical spine, left shoulder impingement, mild cognitive impairment, and
anxiety disorder. 21 The ALJ also specifically found the following impairments were
not severe: cerebral trauma/head injury, disorder of the autonomic nervous
system, and degenerative disk disease of the lumbar spine. 22
Step 3. Determine whether the impairment is the equivalent of a number of listed
impairments found in 20 C.F.R. pt. 404, subpt. P, App. 1 that are so severe as to preclude
substantial gainful activity.

If the impairment is the equivalent of one of the listed

impairments, and meets the duration requirement, the claimant is conclusively presumed
to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined
that Mr. Gurnett does not have an impairment or combination of impairments that
meets or medically equals the severity of a listed impairment. 23
Before proceeding to step four, a claimant=s residual functional capacity (“RFC”)
is assessed. 24 Once determined, the RFC is used at both step four and step five. 25 An
RFC assessment is a determination of what a claimant is able to do despite his physical,
mental, or other limitations. 26 The ALJ concluded that Mr. Gurnett has the RFC “to

21

A.R. 15.

22

A.R. 16.

23

A.R. 17.

24

20 C.F.R. §§ 404.1520(a)(4)(iv) (2013), 416.920(a)(4)(iv) (2013).

25

20 C.F.R. §§ 404.1520(a)(4)(iv-v) (2013), 416.920(a)(4)(iv-v) (2013).

26

20 C.F.R. §§ 404.1545(a) (2013), 416.945(a) (2013).

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perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is
limited to occasional climbing of ladders, ropes or scaffolds; frequent, not
constant, overhead reaching with the bilateral upper extremities; occasional
handling with the left, non-dominant, upper extremity; must avoid concentrated
exposure to excessive vibration; must avoid moderate exposure to unprotected
heights; work is limited to 1- to 4-step tasks involving only few, if any, workplace
changes; and work limited to frequent, not constant, interaction with the public.” 27
Step 4. Determine whether the impairment prevents the claimant from performing
work performed in the past. At this point, the analysis considers the claimant=s RFC and
past relevant work. If the claimant can still do his or her past relevant work, the claimant
is deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and
final step. The ALJ found that Mr. Gurnett is capable of performing his past relevant
work as a Night Manager/Desk Clerk, DOT No. 238.367-038, 28 deemed light-duty and
semi-skilled (SVP 4). 29

27

A.R. 19-20.

28

The Court notes DOT No. 238.367-038 is a hotel clerk, not a manager and it does not include
managerial responsibilities in its description. Mr. Gurnett’s testimony and disability benefits
exhibits specifically described his work as a night manager that extend above and beyond that of
the hotel clerk as described in DOT No. 238.367-038. The responsibility and activities listed in
DOT No. 238.367-038 describes the general role Mr. Gurnett filled at the hotel where he worked,
absent the managerial responsibilities and the overlap into other roles that his specific job required
of him, e.g., bouncer, bellhop. See also A.R. 78-94. The ALJ’s finding that Mr. Gurnett could
perform the job described in DOT No. 238.367-038 does not establish that Mr. Gurnett could
perform the work he previously did as a Night Manager. The Court invites the ALJ to reconsider
this issue on remand.
29

A.R. 27.

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Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of his or her age, education, and work experience, and in light
of the RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.
Although the ALJ could have ended his decision at step four given his conclusion there,
he continued to step five. Based on the testimony of a vocational expert, the ALJ
determined there are other jobs that exist in significant numbers in the national
economy that Mr. Gurnett can perform, including basket filler, DOT No. 529.687010, and hotel/motel cleaner, DOT No. 323.687-014. 30
III.

BACKGROUND

Mr. Gurnett was born in Arizona in 1958 and is currently 58 years old. 31 He was
raised in Alaska 32 and resided in California for an extended time. 33 Mr. Gurnett returned
to Alaska and has continually lived in the state since 2002. 34 He resides with his longterm partner, who receives disability benefits. 35 Mr. Gurnett can perform daily living
activities on his own without assistance. He provides some assistance to his partner and
they share in household duties 36 with help from automatic cleaning machines for the

30

A.R. 28-29.

31

A.R. 28, 240, 242, 380.

32

A.R. 380.

33

See A.R. 253-54, 380.

34

A.R. 380.

35

A.R. 43-44.

36

A.R. 69-70.

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shower and toilet as well as a dish washer and trash pickup at their apartment complex. 37
Mr. Gurnett has a family history of mental health issues; his mother has schizoaffective
disorder requiring frequent in-patient treatment. 38 He recently received his GED. 39
Since October 2007, Mr. Gurnett has not engaged in significant employment. 40 His
employment history consists mostly of restaurant work and hotel service. 41 He operated
his own restaurant for a time in California. 42 As an adult living in Alaska, he has worked
at numerous locations, including resorts, hotels, restaurants, and a legal office. 43
Beginning in 2002, Mr. Gurnett’s worked as a night manager at a hotel. It was
while working there, in December 2002, that Mr. Gurnett witnessed the killing of a
customer. 44 Mr. Gurnett stayed with the hotel for another three years after witnessing the
homicide, but was ultimately let go in October 2005. 45 He has suffered from chronic posttraumatic stress disorder following the homicide 46 as well as severe anxiety, personality

37

A.R. 71-73.

38

A.R. 379.

39

A.R. 70 (“I recently passed the GED test . . . I think it was in 2010 or ’11”).

40

A.R. 309, 255, 251.

41

A.R. 309.

42

A.R. 878.

43

A.R. 320, 309.

44

A.R. 377, 495.

45

A.R. 378.

46

A.R. 381 (Nov. 2005 psychiatric evaluation by Eileen H. Ha, M.D.); see also 378 (discussing
diagnosis of acute PTSD by former chiropractor, Dr. Frank Rothgery, in 2003); 591 (history of
PTSD assessment in 2007); 1030 (2013 diagnosis of PTSD by psychiatrist Dr. Rachad Rayess).

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disorder NOS, and somatization. 47 He was treated by a psychiatrist 48 and a licensed
clinical social worker (“L.C.S.W.”) 49 following the homicide to address these issues. 50
Mr. Gurnett filed a worker’s compensation claim concerning his injuries related to
the December 2002 homicide that was ultimately denied after two employer-sponsored
independent medical examinations (“IME”) 51 were conducted in 2003 and concluded no
medical or psychiatric issues resulted from the homicide. 52 Mr. Gurnett appealed the
denial of worker’s compensation benefits and an additional IME was conducted. 53 For
that IME he also underwent MRIs of his thoracic and lumbar spine, which revealed disc
degeneration from L2 to L5 and a small disc herniation to the left of the midline at L5 that
displaced the S1 nerve root laterally to a mild degree. 54 The administrative record in this
case is unclear as to the outcome of the worker’s compensation benefits appeal.
In 2007, Mr. Gurnett worked as a restaurant server at several restaurants. 55 In
July 2007, Mr. Gurnett’s employer at the time called an ambulance to take Mr. Gurnett to

47

A.R. 385, 393.

48

Eileen H. Ha, M.D.

49

Stephanie Warnock, L.C.S.W.

50

A.R. 383-425.

51

A.R. 369 (psychiatric evaluation, Eileen Ha, M.D., Nov. 30, 2015); see also A.R. 378 (psychiatric
evaluation, Eileen Ha, M.D., Dec. 2, 2005, reviewing IMEs by Stephen Fuller, M.D., orthopedic
surgeon, and David Glass, M.D., psychiatrist).
52

A.R. 378.

53

A.R. 366 (Aug. 1, 2007, IME conducted by Dr. Larry Levine).

54

A.R. 375 (Aug. 23, 2007 MRI impression).

55

A.R. 309.

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the emergency room. 56 There, he was assessed with anxiety. 57 In September 2007, at
a different restaurant, during his second week of employment there, he was struck in the
head by a walk-in freezer door that had been kicked open by a co-worker. 58 After going
to the emergency room two days after the incident, Mr. Gurnett was released from the
hospital after a head CT scan was deemed normal. 59
Shortly thereafter, at a routine eye exam, an optometrist immediately referred Mr.
Gurnett to an ophthalmologist who queried whether Mr. Gurnett suffered from partial
Horner’s syndrome. 60 Mr. Gurnett was referred to a neurosurgeon who diagnosed him
with Horner’s syndrome from an “apparent traumatic dissection of his right distal cervical
internal carotid artery.” 61 The neurosurgeon recommended an angioplasty and stent

56

A.R. 597.

57

A.R. 598.

58

A.R. 673.

59

A.R. 590-591; 673-74.

60

A.R. 785, 619. “Horner syndrome is a combination of signs and symptoms caused by the
disruption of a nerve pathway from the brain to the face and eye on one side of the body,”
http://www.mayoclinic.org/diseases-conditions/horner-syndrome/basics/definition/con-20034650
(last visited Sept. 12, 2016).
61

A.R. 554, 642, 549.

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placement because Mr. Gurnett was near complete occlusion of his artery and the carotid
stenting would encourage healing. 62
Prior to the neurosurgeon’s referral, Mr. Gurnett filed a new worker’s compensation
claim regarding the 2007 head trauma. 63 The insurance company for that claim sought
a neurosurgical IME of Mr. Gurnett 64 and the examining doctor agreed that surgery was
necessary. 65 Mr. Gurnett underwent a cerebral angiography on November 15, 2007. 66 A
stent was ultimately not installed by the neurosurgeon because the dissection appeared
to be spontaneously healing on its own. 67 Mr. Gurnett was prescribed Plavix after the
surgery and monitored. 68
While rehabilitating from the artery dissection caused by the blunt trauma to his
head, Mr. Gurnett received treatment from a physiatrist, 69 who worked with him on
cognitive rehabilitation therapy, 70 received treatment by a certified speech-language

62

A.R. 554, 550.

63

See A.R. 438, 494.

64

A.R. 552.

65

A.R. 441-444 (Oct. 29, 2007, IME conducted by Paul Williams, M.D.).

66

A.R. 426.

67

A.R. 544, 426, 635, 532.

68

A.R. 547, 635.

69

American Academy of Physical Medicine and Rehabilitation website, “Physical Medicine and
Rehabilitation (PM&R) physicians, also known as physiatrists, treat a wide variety of medical
conditions affecting the brain, spinal cord, nerves, bones, joints, ligaments, muscles, and tendons.
“[they] are medical doctors who have completed training in the specialty of [PM&R]
http://www.aapmr.org/about-physiatry/about-physical-medicine-rehabilitation/what-is-physiatry
(last visited Sept. 14, 2016).
70

A.R. 673 (Shawn Hadley, M.D., physiatrist).

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pathologist, 71 had a neuropsychological evaluation, 72 completed a MMPI-2, 73 and
participated in physical therapy. 74

During this time he was receiving worker’s

compensation benefits. 75
In 2009, another neurosurgical IME was conducted at the request of the insurance
provider for the 2007 head trauma worker’s compensation claim. 76 The IME concluded
that Mr. Gurnett was medically stable and no restrictions were placed on his ability to
return to work. 77

In November 2012, a state mental residual functional capacity

assessment observed that Mr. Gurnett was limited with regard to coping with complex
task instructions, 78 while a state medical consultant opined that Mr. Gurnett was not

71

Anne Ver Hoef, M.A., C.C.C. - S.L.P.

72

A.R. 492-502 (Aug. 4-5, 2008, neuropsychological evaluation conducted by Paul L. Craig,
Ph.D.).
73

A.R. 490-91 (Oct. 1, 2008, Minnesota Multiphasic Personality Inventory (MMPI-2) conducted
by Paul L. Craig, Ph.D.). Oxford Journals website, MMPI-2 is widely used psychometric test for
measuring adult psychopathology in mental health, medical and employment settings,
http://occmed.oxfordjournals.org/content/59/2/135.full (last visited Sept. 14, 2016).

74

A.R 259, 533, 656.

75

A.R. 676.

76

A.R. 459-84 (Sept. 25, 2009, IME conducted by Ronald L. Vincent, M.D.).

77

A.R. 479-80.

78

A.R. 112, 131.

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credible with regard to his medical conditions, 79 and a vocational assessment determined
that he could return to his former employment as a restaurant server. 80
Mr. Gurnett states he avoids crowds to run errands and limits his infrequent driving
to off-peak times in order to feel less vulnerable and reduce panic attacks. 81 He adds
that he tends to overreact to stimulus, that he reschedules appointments to avoid
crowds, 82 that he rarely socializes with family, does not socialize with friends, and does
not do social things together with his partner. 83
Mr. Gurnett claims that his disabilities include Horner’s Syndrome; stenosis of the
carotid arteries; degenerative disc disease of the cervical spine with moderate to severe
narrowing of the C6 and C7, osteophytes, and edema; impairment to the left shoulder
including tendinosis and possible impingement lesion, bursitis, and capsulitis;
radiculopathy of the cervical spine; anxiety; and depression. 84
IV.

DISCUSSION

The Court construes Mr. Gurnett’s appeal to raise the following six issues: (1) the
ALJ committed legal error when discounting Mr. Gurnett’s treating source opinions and
giving greater weight to non-treating source opinions; (2) the ALJ should not have relied
on the opinions of Dr. William or Dr. Vincent—two doctors who conducted EIMEs—

79

A.R. 111,130.

80

A.R. 115, 134.

81

A.R. 57, 47.

82

A.R. 59.

83

A.R. 60.

84

A.R. 41-42.

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because each of them had been previously disciplined by state medical boards; (3) the
ALJ incorrectly discounted the opinion of his former employer, Attorney Steven
Constantino, regarding Mr. Gurnett’s inability to work as an office assistant; (4) the ALJ
incorrectly assessed Mr. Gurnett’s credibility by finding that his statements about the
intensity, persistence, and limiting effects of his impairments were unsupported by
substantial evidence; (5) the ALJ made factual errors in his decision; and (6) the ALJ
created a hostile and intimidating atmosphere at the evidentiary hearing and is generally
biased against claimants seeking disability benefits.
(1) Weight of Medical Opinions
“Regardless of its source, [the SSA] will evaluate every medical opinion [it]
receive[s].” 85 Medical opinions come from three types of sources: those who treat the
claimant; those who examine but do not treat the claimant; and those who neither
examine nor treat the claimant. 86 “As a general rule, more weight should be given to the
opinion of a treating source than to the opinion of doctors who do not treat the claimant.”87
And the opinion of an examining, but non-treating, source should generally be given more
weight than that of a non-examining source. 88
Thus, generally, a treating source’s opinion should be given the most weight.
Indeed, if the treating source’s opinion is “well-supported by medically acceptable clinical

85

20 C.F.R. §§ 404.1527(c) (2013), 416.927(c) (2013).

86

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

87

Id. (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)).

88

Id. (citing Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008)).

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and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence” in the record, that opinion will be given controlling weight. 89 “If a treating
physician's opinion is not given ‘controlling weight’ because it is not ‘well-supported’ or
because it is inconsistent with other substantial evidence in the record, the Administration
considers specified factors in determining the weight it will be given.” 90 These factors
include the length of the treatment relationship and frequency of examination, as well as
the nature and extent of the relationship. 91 When weighing a medical opinion, including
that of a treating source that is not controlling, the ALJ must also consider the extent to
which the opinion is supported by relevant evidence, such as medical signs and
laboratory results; the extent to which an opinion is consistent with other opinions and
evidence in the record; whether the opinion is within the source’s area of specialization;
and other factors such as the familiarity of the SSA disability benefits process and other
information in the case record. 92
Applying these factors means that “[i]n many cases, a treating source's medical
opinion will be entitled to the greatest weight and should be adopted, even if it does not
meet the test for controlling weight.” 93 However, in some cases, the treating source’s
opinion may not be entitled to the greatest weight. But “an ALJ may reject a treating

89

20 C.F.R. §§ 404.1527(c)(2) (2013), 416.927(c)(2) (2013).

90

Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

91

20 C.F.R. §§ 404.1527(c)(2) (2013), 416.927(c)(2) (2013).

92

See Orn, 495 F.3d at 631 (citing 20 C.F.R. §§ 404.1527).

93

Id. at 633 (9th Cir. 2007) (citing SSR 96-2p, 61 Fed. Reg. 34,490, 34,491).

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doctor’s medical opinion, if no other doctor has contradicted it, only for ‘clear and
convincing’ reasons supported by substantial evidence.” 94
Doctors do not always agree on all matters, and the ALJ is responsible for
determining credibility and resolving conflicts and ambiguities in medical testimony. 95 But
even when a treating source's opinion is contradicted by the opinion of an examining
physician, the treating source’s opinion is generally “still entitled to deference.” 96 If a
treating source’s opinion is contradicted by another source, an ALJ still may not reject
that treating source’s opinion without providing “specific and legitimate reasons supported
by substantial evidence in the record.”97 This can be done by “setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” 98 When an examining source relies on the same clinical
findings as a treating source, but differs only in his or her conclusions, the conclusions of
the examining source are not considered “substantial evidence” sufficient to support
rejecting the treating source’s opinion. 99 And when rejecting a treating source’s opinions,
the ALJ must do more than just offer his own conclusions; instead, “[h]e must set forth his

94

Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725
(9th Cir.1998)).

95

Lewis, 236 F.3d at 509 (citing Reddick, 157 F.3d at 722).

96

Orn, 495 F.3d at 633 (citing SSR 96-2p, 61 Fed. Reg. at 34,491).

97

Orn, 495 F.3d at 633 (quoting Reddick, 157 F.3d at 725).

98

Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

99

Orn, 495 F.3d at 632.

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own interpretations and explain why they, rather than the doctors’, are correct.”100 But an
ALJ may discredit a treating source’s opinions that are “conclusory, brief, and
unsupported by the record as a whole or by objective medical findings.” 101
The SSA also permits a claimant to provide evidence from non-physician sources
to show the severity of an impairment and how it affects a claimant’s ability to work,
including evidence from a nurse practitioner, physicians’ assistant, or therapist. 102 A
certified speech-language pathologist can provide evidence of the severity of an
impairment, and may also provide evidence of the existence of a speech or language
impairment. 103
In this case, the ALJ detailed certain medical opinion evidence in the administrative
record and included the weight he gave to various medical sources. The ALJ did not give
“great weight” to nearly all of Mr. Gurnett’s medical providers, and in many instances gave
their opinions no weight at all. On this topic, the Court interprets Mr. Gurnett’s complaint
to mean that he disputes: (1) the ALJ’s reliance on the state agency medical and
psychological non-examining consultants instead of his doctors, who currently treat him
and some of whom he had previously requested the SSA use if consultative examinations
were deemed necessary; 104 (2) the ALJ’s reliance on employer-sponsored IMEs (“EIME”)

100

Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

101

Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (quoting Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)) (emphasis omitted).
102

20 C.F.R. §§ 404.1513(d) (2013), 416.913(d) (2013).

103

20 C.F.R. §§ 404.1513(a)(5) (2013), 416.913((a)(5) (2013).

104

Docket 1 at 2; A.R. 321.

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related to previous worker’s compensation claims that were performed by doctors who
had been severely disciplined; 105 (3) the reliance on the vocational expert’s opinion over
a treating physician’s; (4) the ALJ’s rejection of Dr. Rothoff’s opinion that Mr. Gurnett is
unable to work full-time in any capacity; (5) the ALJ’s complete dismissal of Dr. Fraser’s
opinions; (6) the ALJ’s decision to give no weight to Anne Ver Hoef’s opinion; (7) the
decision to give no weight to Dr. Carl Rosen’s opinion; and (8) the ALJ’s decision to give
considerable weight to one opinion of Dr. Hadley, while ignoring all the other opinions of
that doctor. 106
The Commissioner responds that the ALJ provided legally sufficient reasons for
discounting each of Mr. Gurnett’s treating source’s opinions and favoring the opinions
that the ALJ found were consistent with the record evidence as a whole. 107
For clarity, the Court lists the medical providers whose records are included in the
administrative record:
After the 2002 homicide trauma, Mr. Gurnett was treated by the following medical
providers: (1) Dr. Ha, psychiatrist, and (2) Stephanie Warnock, L.C.S.W., beginning in
2005. And he was examined, but not treated, by the following doctors for this incident:
(1) Dr. Levine; (2) Dr. Glass, psychiatrist; and (3) Dr. Fuller, orthopedic surgeon, each of
whom conducted an EIME.

105

Docket 1 at 3-4; see Docket 30 at 1.

106

See Docket 1 at 3-5.

107

Docket 26 at 18.

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Following the 2007 head trauma, Mr. Gurnett was treated by two main groups of
doctors, some of whom overlap. The groups are based on time frame. Immediately
following the head trauma Mr. Gurnett was treated by: (1) Dr. Brinkerhoff, optometrist; (2)
Dr. Rosen, ophthalmologist; (3) Dr. Tolbert, neurosurgeon; (4) Dr. Hadley, physiatrist; (5)
Dr. Spaulding, primary care provider; (6) Anne Ver Hoef, certified speech-language
pathologist; (7) Mary Margaret Hillstand, adult nurse practitioner (“A.N.P.”) specializing in
neurology; (8) Dr. Baldauf, cardiologist; and (9) Dr. Ryan, orthopedic surgeon. There are
also a few treatment notes from Ms. Warnock, L.C.S.W., that were last dated November
1, 2007. 108
Since 2011, Mr. Gurnett has been treated by the following practitioners, most of
whom worked at one location under an integrated health model: (1) Dr. Shirley Fraser,
neurologist; (2) Dr. Rachad Rayess, psychiatrist; (3) Dr. Michelle Rothoff, primary care
provider; (4) Dr. Donovan, clinical psychologist; and (5) Kathy Chastain, A.N.P. Mr.
Gurnett also continued to be treated by Dr. Brinkerhoff and Dr. Rosen.
Lastly, Mr. Gurnett was examined, but not treated, by the following doctors for the
2007 head trauma: (1) Dr. Craig, clinical neuropsychologist; (2) Dr. Williams,
neurosurgeon; (3) Dr. Vincent, neurosurgeon; and (4) Dr. Barrington, chiropractor. The
first three doctors conducted EIMEs.
As the discussion above indicates, an ALJ should generally accord the greatest
weight to opinions of a treating source, less weight to the opinions of an examining source,

108

A.R. 392.

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and the least weight to opinions of a non-examining source. 109 Here, the ALJ did almost
the opposite, assigning “great weight” and “considerable weight” to two non-examining
sources, assigning “great weight” to one of two examining sources, and assigning “no
weight” or “little weight” to five treating sources, and wholly failing to consider one other
treating source. There are of course circumstances in which the ALJ may depart from
the generally applicable relative weights. But to do so the ALJ must provide either “clear
or convincing reasons supported by substantial evidence,” if the treating source’s opinion
is not contradicted by another source, or “specific and legitimate reasons supported by
substantial evidence” if the treating source’s opinion is contradicted. The ALJ failed to
satisfy these requirements.
(A) Mr. Gurnett’s Treating Source’s Opinions
Cleary Donovan, Psy.D., Michelle Rothoff, M.D., Rachad Rayess, M.D., and
Kathy Chastain, A.N.P.
The administrative records shows Dr. Rothoff treated Mr. Gurnett beginning in
November 2011, 110 as a primary care provider, and was also involved in his treatment in
2013. 111 Dr. Rayess treated Mr. Gurnett in the beginning half of 2013 as a psychiatrist. 112
Dr. Donovan treated Mr. Gurnett as a counselor using psychotherapy, including cognitive

109

See 20 C.F.R. § 404.1527(c)(1-2).

110

A.R. 818.

111

A.R. 1005-07.

112

A.R. 945-47, 961-63, 1029-30.

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behavior therapy. 113 The administrative record shows she started to treat him after he
was referred to her by Dr. Rayess, in June 2013, around the time Dr. Rayess stopped
treating Mr. Gurnett. 114 The last medical record associated with Dr. Donovan is dated
October 29, 2013. 115 The administrative record also contains treatment records from Ms.
Chastain, A.N.P., beginning in June 2011, for behavioral health. 116
Dr. Donovan’s professional opinions of Mr. Gurnett are throughout her treatment
records; but the ALJ mentions her only once in his decision. He refers to her when citing
to statements reported by Mr. Gurnett to Dr. Donovan regarding his activities of daily
life. 117 And the ALJ does not acknowledge a rather important opinion made by Dr.
Donovan: on September 25, 2013 she opined on the parameters Mr. Gurnett could
tolerate in a workplace setting at that time. 118 To her, Mr. Gurnett is substantially limited
in his ability to work. She opines he needs low noise and distraction, no quick calculation
or adjustments, adequate orientation and training, as well as an understanding and

113

A.R. 1031, 1032, 976.

114

See A.R. 1030, 1032, 1026.

115

A.R. 1034.

116

A.R. 822.

117

A.R. 25.

118

A.R. 999.

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supportive supervisor, and to have limited work hours, approximately a few hours twice
per week. 119
Dr. Rothoff’s opinions mostly relate to 2011, 120 and she also completed a “Health
Status Report Form” as well as “Certification of Medical Status” form for chronic and acute
medical assistance in September 2013. 121 Dr. Donavan gave these forms to Dr. Rothoff
to complete. 122

The ALJ gave the opinion in these forms “no weight” because he

determined there was “no rationale” for it and he deemed it “without support and [thus]
conclusory.” 123 The ALJ did not discuss any other opinions expressed by Dr. Rothoff
contained in the medical records dating back to 2011.
Dr. Rayess diagnosed Mr. Gurnett with PSTD and psychotic disorder NOS. 124 He
opined that, due to Mr. Gurnett’s anxiety and difficulty focusing, any mentally demanding
work would result in significant PTSD symptoms and Mr. Gurnett could therefore not work
in any stressful environment. 125 He opined that Mr. Gurnett was markedly affected by
these impairments in his ability to carry out complex instructions and make judgments on

119

A.R. 999.

120

E.g., A.R. 814-21.

121

A.R. 996-98.

122

A.R. 999.

123

A.R. 26.

124

A.R. 946-47, 1030.

125

A.R. 961-62 (Medical Source Statement of Ability to Do Work-Related Activities (Mental), dated
May 8, 2013).
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complex work-related decisions. 126 He also opined that Mr. Gurnett was moderately
impaired in his ability to make judgments on simple work-related decisions, or understand
and remember complex instructions, and that he was mildly impaired in his ability to
understand, remember, and carry out simple instructions. 127 The ALJ gave “considerable
weight” to Dr. Rayess’s opinion that Mr. Gurnett “experiences ‘marked’ limitations in his
ability to carry out complex instructions and make judgments on complex work-related
decisions,” but the ALJ did not address Dr. Rayess’s other opinions. 128
The ALJ’s decision did not mention Ms. Chastain’s opinions that Mr. Gurnett is
bipolar129 and suffers from anxiety disorder NOS 130 as well as depression with anxiety. 131
Her records are replete with objective observations and her subjective impressions of Mr.
Gurnett. She observed, for example, that Mr. Gurnett’s “thought process is grossly
tangential and circumstantial” and that his “impulse control” is sometimes “variable.” 132
The Court finds the ALJ erred in not addressing at all either Dr. Donovan’s opinions
regarding her treatment of Mr. Gurnett or any of Ms. Chastain’s opinions, and by ignoring
most of the opinions expressed by Dr. Rayess. The ALJ is required to “evaluate every
medical opinion it receives”; but the ALJ did not discuss and apparently did not consider

126

A.R. 961.

127

A.R. 961.

128

A.R. 26.

129

A.R. 825.

130

A.R. 823.

131

A.R. 800.

132

A.R. 822-23.

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any of the opinions rendered by Dr. Donavan. And yet Dr. Donovan is a treating source—
her opinions should be given “controlling weight” if they are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with
the other substantial evidence in [the] case record.” 133 Even if the ALJ found that they
did not meet that standard, he should have deferred to those opinions unless there were
“clear and convincing reasons supported by substantial evidence” to disregard them. 134
And if Dr. Donovan’s opinions were contradicted by another doctor—and the ALJ did not
indicate that this was so—then he still must consider them unless he provides “specific
and legitimate reasons supported by substantial evidence in the record.” 135 The ALJ
committed legal error by failing to discuss these opinions at all.
One of Dr. Donovan’s opinions appears to have been presented through Dr.
Rothoff, who completed a form at Dr. Donovan’s request. 136 The ALJ attributed this
opinion to Dr. Rothoff and dismissed it as conclusory. The form did not leave room for a
detailed explanation of the basis for the opinion, but the opinion, whether it originated with
Dr. Rothoff or Dr. Donovan, does not appear to be either conclusory or unsupported. The
ALJ has a duty to “conduct an appropriate inquiry” if the ALJ determines it is necessary
to know the basis of the treating source’s opinion. 137 Despite the quirk in the paperwork,

133

20 C.F.R. § 404.1527(c)(2).

134

Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715,
725 (9th Cir. 1998)).
135

Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (quoting Reddick, 157 F.3d at 725).

136

See A.R. 1008, 1005-07.

137

See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).

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the administrative record indicates that Dr. Rothoff coordinated her treatment of Mr.
Gurnett with that of other providers at the Anchorage Neighborhood Health Center
(“ANHC”)—Dr. Fraser, Dr. Donovan, and Ms. Chastain, A.N.P. The opinion thus had the
treatment records from ANHC behind it. And while the ALJ may have misapprehended
Dr. Rothoff’s role in Mr. Gurnett’s treatment, and the Commissioner was unable to discern
Dr. Rothoff’s field of practice, 138 the Court finds that Dr. Rothoff was Mr. Gurnett’s primary
care provider. 139 Because Dr. Rothoff is a treating source, the ALJ could not wholly
dismiss her opinions unless he offered specific reasons or if the doctor’s opinions were
“conclusory, brief, and unsupported by the record as a whole.”140 The ALJ’s finding that
Dr. Rothoff’s opinion had “no rationale” is contrary to the record, which is replete with
detailed accounts of the treatment Mr. Gurnett received at ANHC. The ALJ therefore
committed legal error by giving this medical opinion “no weight,” and also committed legal
error by disregarding entirely Dr. Rothoff’s other medical opinions from 2011.
Regarding Dr. Rayess’s opinions, the ALJ considered only one and ignored all the
others. In the same document containing the opinion to which the ALJ gave “considerable
weight,” 141 Dr. Rayess also states, in what appears to be his own handwriting, that Mr.
Gurnett has “PTSD and a personality disorder” as well as “anxiety and difficulty focusing,”
and that he “cannot be in any stressful work environment” because “any work that is

138

A.R. 26; Docket 26 at 17.

139

A.R. 988; see 816, 818, 828, 831.

140

20 C.F.R. § 404.1513(d).

141

A.R. 26.

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demanding mentally will result in significant PTSD symptoms.”142 Moreover, in other
records Dr. Rayess states that Mr. Gurnett experiences “auditory hallucinations” and that
“his thought process is very circumstantial.” 143 The ALJ does not acknowledge or address
these opinions at all. The ALJ committed legal error because he must consider all medical
opinions, and must give “clear and convincing reasons supported by substantial
evidence” for disregarding the opinions of treating sources. 144
Ms. Chastain is a nurse practitioner, and thus is not qualified to “provide evidence
to establish an impairment.” 145 But she is qualified to provide evidence “to show the
severity of [an] impairment.” 146 The ALJ thus erred in not considering her opinions to the
extent that they show the severity of any of Mr. Gurnett’s opinions.
An ALJ’s legal errors are subject to the harmless error test. 147 The ALJ’s failure to
consider Dr. Donovan’s treatment or opinions and his failure to consider the bulk of Dr.
Rayess’s opinions were not harmless. The Court need not decide whether the ALJ’s
failure to explicitly state what weight he gave the opinions of either Dr. Rothoff or Ms.
Chastain, A.N.P., was harmless.

Neither opined as to work-related impairments or

restrictions and both diagnosed Mr. Gurnett with anxiety, which the ALJ found to be a

142

A.R. 961-62.

143

A.R. 1029-30.

144

Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715,
725 (9th Cir. 1998)).
145

20 C.F.R. § 404.1513(a).

146

20 C.F.R. § 404.1513(d).

147

See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

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severe impairment. Nonetheless, on remand, the ALJ is directed to address: all of Dr.
Donovan’s opinions, including her opinion about the appropriate parameters of his work
environment; all opinions of Dr. Rayess; Ms. Chastain’s opinions as they relate to the
severity of Mr. Gurnett’s impairments; and the opinions of Dr. Rothoff in light of the two
years’ worth of treatment records from ANHC.
Shirley Fraser, M.D.
Dr. Fraser, a neurologist, treated Mr. Gurnett after he was referred to her by Dr.
Rothoff. 148 The administrative record shows that Dr. Fraser began treating Mr. Gurnett
in March 2012. 149 In Dr. Fraser’s opinion, Mr. Gurnett would be unable to work due to the
distracting nature of articulated neurological events affecting his left side. 150

She

described those events as “seizure-like, or equal to seizure.” In a physician examination,
Dr. Fraser noted “wasting/atrophy of the left side of his lower chest and abdomen” and
“mild atrophy of the left face, or his cheek,” which is where Mr. Gurnett complained of
tremors. She considered these findings to be “consistent with the diffuse injury” Mr.
Gurnett received that “affect[ed] his autonomic system on the left side of his body” as well
as “the spinal motor neurons.” She also stated that “she strongly feel[s]” that when Mr.
Gurnett suffered the left carotid dissection it “involved the left vagus nerve and some
superficial nerves, as well.” And she opined that his symptoms are “tantamount to a
seizure-like disorder” and “seriously impair his ability to work, especially when combined

148

A.R. 816.

149

A.R. 809.

150

A.R. 26; see also A.R. 949.

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with his easily distract-able and mildly paranoid personality.” 151 She further opined that
the left carotid dissection that caused Horner’s Syndrome probably also included “a small
cord infarct 152 . . . which is responsible for the left-sided atrophy, weakness, and muscle
spasms that he suffers [and] . . . also probably accounts for the stiffness and poor
movement of his left foot.” 153
The ALJ references one opinion by Dr. Fraser that she made on January 23, 2013;
he rejected it because it was “based upon [Mr. Gurnett’s] unreliable subjective reports” of
such “neurological events” and thus he gave her opinion “no weight.” 154
The Court finds the ALJ erred in failing to address all the opinions of Mr. Gurnett’s
treating neurologist. The ALJ’s implication that Dr. Fraser, a licensed neurologist, is
unable to accurately assess her patient’s conditions without being deceived by
malingering is not well-taken. More importantly, contrary to the ALJ’s assertion that the
opinion was based on Mr. Gurnett’s subjective reports, Dr. Fraser made personal
observations about Mr. Gurnett that include objective evidence of his wasting, atrophy,
stiffness, weakness, and poor movement. 155 She treated him for more than a year 156 and

151

A.R. 949.

152

National Institute of Neurological Disorders and Stroke website, definition of spinal cord
infarction “a stroke either within the spinal cord or the arteries that supply it,”
http://www.ninds.nih.gov/disorders/spinal_infarction/spinal_infarction.htm (last visited Sept. 13,
2016).
153

A.R. 1025.

154

A.R. 26.

155

A.R. 987, 811.

156

See A.R. 809, 954, 986, 948-49, 1024-25.

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she states that over time, she became “impressed with the amount of dysfunction [Mr.
Gurnett] has” and that she felt “very strongly that he is psychiatrically significantly
impaired.” 157 Indeed, she referred Mr. Gurnett to a psychiatrist, Dr. Rayess. 158 She also
observed that because Mr. Gurnett is very intelligent, it is “difficult to spot [his functional
impairment] on a casual examination.”159
The ALJ may reject the opinion of a treating source only for “clear and convincing
reasons supported by substantial evidence.” The reason the ALJ gave for rejecting Dr.
Fraser’s opinion is neither convincing nor supported by substantial evidence. This error
was not harmless. On remand, the ALJ is directed to specifically address each of Dr.
Fraser’s opinions and determine what weight to give each. Because Dr. Fraser was a
treating source, her opinion is entitled to deference. If the ALJ seeks to reject Dr. Fraser’s
opinions, he must set out a “detailed and thorough summary of the facts and conflicting
clinical evidence, stat[e] his interpretation thereof, and mak[e] findings.” 160
Marshall Tolbert, M.D.
Dr. Tolbert is a neurosurgeon who performed a cerebral angiography on Mr.
Gurnett in November 2007 because of the left internal carotid artery dissection caused by
the 2007 head trauma. Dr. Tolbert initially planned to treat the dissection aggressively

157

A.R. 986.

158

A.R. 945-47.

159

A.R. 986.

160

Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715,
725 (9th Cir. 1998)).

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with angioplasty and stent placement due to the “near complete occlusion of his artery,” 161
but did not perform either procedure because the dissection flap was healing. 162 It was
instead monitored and managed with antiplatelet medication. 163
Dr. Tolbert continued to treat Mr. Gurnett following the surgery. In February 2008,
Dr. Tolbert restricted Mr. Gurnett from “chiropractic manipulation” and “activities with high
impact to cervical region, such as snowmachining, ATV riding.” 164 In April 2008, Dr.
Tolbert stated Mr. Gurnett had limitations related to “any risk of cervical carotid artery
injury” including “any acute rapid change in head position such as with chiropractic
manipulations or being struck in the head forcefully.” 165
In August 2008, Dr. Tolbert determined that the left internal carotid artery
dissection had completely healed, that he would continue to proscribe Plavix to Mr.
Gurnett for one year, and that there were no physical restrictions from his standpoint
beyond “avoid[ing] activities [placing him] at high risk for significant trauma to the head or
neck, such as downhill skiing” and “avoid[ing] chiropractic manipulation.” 166 Mr. Gurnett
was advised to be very careful when carrying heavy objects to prevent them from falling
on his head and to take care when descending staircases where he could fall and strike

161

A.R. 554.

162

A.R. 547.

163

A.R. 533.

164

A.R. 577.

165

A.R. 545.

166

A.R. 542.

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his head. 167 Dr. Tolbert evaluated Mr. Gurnett again on July 22, 2009, and on January
20, 2010, where he confirmed his specific advisement against chiropractic manipulation
and general advisement against being placed in situations where one is “likely to be struck
forcefully in the head.”168
The ALJ found that Dr. Tolbert’s opinion related to the restrictions he placed on
Mr. Gurnett from engaging activities with “high impact” to the cervical region such as
snow-machining or ATV riding was not supported by a rationale and thus gave it “little
weight.” 169
The Court finds the ALJ erred in giving Dr. Tolbert’s opinion little weight. Even if
the opinion of Dr. Tolbert—a treating source—does not meet the standard for controlling
weight, his opinion is still entitled to deference. The extent of that deference is to be
determined relative to several factors—among them, the length, frequency, nature, and
extent of the treatment relationship. Dr. Tolbert treated Mr. Gurnett over the course of
several years, and the ALJ must give consideration to that relationship. As a specialist in
neurosurgery, and one who performed a cerebral angiograph on Mr. Gurnett with the

167

A.R. 545.

168

A.R. 533, 536.

169

A.R. 26; see 577.

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intent to proceed with an angioplasty and stent placement, the restriction placed on Mr.
Gurnett following the surgery does not need extensive explanations. 170
This error was likely harmless, however, because the ALJ did not consider such
high-impact type jobs as viable for Mr. Gurnett’s work options. Indeed, the ALJ limited
Mr. Gurnett’s RFC from concentrated exposure to excessive vibration. 171 Moreover, Dr.
Tolbert did not repeat the limitations on snow-machining and ATV riding in his more recent
evaluation of Mr. Gurnett in January 2010. Nonetheless, on remand, the ALJ is directed
to consider Dr. Tolbert’s restrictions on Mr. Gurnett in light of Dr. Tolbert’s specialty and
the specific treatment relationship between the two.
Carl E. Rosen, M.D.
Dr. Rosen, an ophthalmologist, treated Mr. Gurnett immediately after the 2007
head trauma, when he was referred by Mr. Gurnett’s optometrist. Dr. Rosen continued
to treat Mr. Gurnett annually until at least 2013. 172 In March 2009, Dr. Rosen opined that
Mr. Gurnett would suffer from permanent impairment to his left eye, by way of miosis,
ptosis, and convergence weakness, and that “an office setting with good lighting” would
be an appropriate setting where Mr. Gurnett could resume work. 173 The ALJ gave Dr.

170

See Orn v. Astrue, 495 F.3d 625, 634 (9th Cir. 2007) (finding error when the ALJ dismissed
treating sources’ “opinions that were substantiated by the contemporaneous medical tests and
Orn's medical condition.”)
171

A.R. 19.

172

See A.R. 55, 964.

173

A.R. 458.

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Rosen’s opinion no weight. 174 Again, the reason stated by the ALJ for the rejection of the
opinion was that Dr. Rosen gave “no rationale” for the opinion and thus he found it
conclusory. 175
The Court finds the ALJ erred in rejecting Dr. Rosen’s opinion regarding the light
conditions in which Mr. Gurnett could work. Dr. Rosen was one of Mr. Gurnett’s treating
sources. The ALJ must account for the nature, extent, length, and frequency of the
treatment relationship. The basis for the opinion appears to be the information gleaned
during the treatment relationship; if the ALJ is unsure of the basis for then he must
“conduct an appropriate inquiry.” 176 Dr. Rosen is a treating source, a specialist, and has
an extensive physician-patient relationship with Mr. Gurnett. His opinion should not have
been wholly discarded by the ALJ as merely conclusory.
This error may well be harmless, however, because the vocational expert who
testified as to what jobs a hypothetical person, with Mr. Gurnett’s impairments, could
perform did not include office-type settings. On remand, however, the ALJ is directed to

174

A.R. 25.

175

A.R. 25.

176

See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).

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incorporate the lighting conditions expressed by Dr. Rosen into Mr. Gurnett’s RFC, absent
other substantial evidence to the contrary.
Shawn Hadley, M.D.
Dr. Hadley, a physiatrist, began treating Mr. Gurnett in June 2008, after he was
referred to her by Dr. Tolbert. 177 Dr. Hadley first conducted a physiatric consultation and
then worked with Mr. Gurnett during his rehabilitation from the 2007 head trauma using
cognitive rehabilitation therapy. 178 In April 2009, Dr. Hadley specifically found that Mr.
Gurnett could not work as a formal waiter, busser, small business owner, kitchen and
hotel manager, porter, or as a restaurant or coffee shop manager. 179 And she also
predicted at that time that Mr. Gurnett will realize a permanent partial impairment from the
2007 head trauma, although she declined to perform the rating herself; but Dr. Hadley
predicted that Mr. Gurnett would be capable of performing light work when he reached
medical stability. 180
The ALJ gave Dr. Hadley’s prediction “considerable weight” because it was
consistent with her recorded examination findings in her initial physiatric consultation

177

A.R. 673.

178

A.R. 680.

179

A.R. 719-723. The Court notes that Dr. Hadley’s opinion in this regard directly contradicts the
ALJ’s determination that Mr. Gurnett can perform his past duties as a night manager at a hotel
with a restaurant. See supra note 28.

180

A.R. 724.

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conducted in June 2008. The ALJ noted that Dr. Hadley had treated Mr. Gurnett for over
a year when she made the prediction. 181
The Court finds the ALJ erred by considering only Dr. Hadley’s prediction of Mr.
Gurnett’s future physical capacities related to work. First, the ALJ cannot select only one
piece of information and ignore the rest of the related information or the context
surrounding it. 182 Second, Dr. Hadley treated Mr. Gurnett until at least August 11,
2010. 183 The only mention of Dr. Hadley’s opinions is the one reference to her 2009
“prediction”—notably not a current assessment. 184 The ALJ must consider all medical
opinions, whatever their source. He failed to do so by apparently ignoring Dr. Hadley’s
opinion that Mr. Gurnett could not work as a formal waiter, busser, small business owner,
kitchen and hotel manager, porter, or as a restaurant or coffee shop manager.
Anne Ver Hoef, S.L.P.
Anne Ver Hoef, S.L.P., worked with Mr. Gurnett from September 2008 until
September 2010. 185 She provided cognitive-language rehabilitation that was coordinated
with Dr. Hadley, Dr. Spaulding, and Dr. Tolbert. 186 In August 2009, Ms. Ver Hoef opined

181

A.R. 26.

182

Cf. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (citing Holohan v. Massanri, 246
F.3d 1195, 1205 (9th Cir. 2001)).
183

See A.R. 681.

184

A.R. 677.

185

A.R. 877, 897, 918.

186

A.R. 881; see also A.R. 919-29.

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that Mr. Gurnett would “not do well in the fast paced, multi-taking world of restaurant
work” 187 and in June 2009 opined that he would not do well as a manager in a store,
restaurant, hotel, coffee shop, or kitchen, or as a waiter, busser, or porter. 188
The ALJ rejected Ms. Ver Hoef’s opinion regarding Mr. Gurnett’s ability to return
to work as a waiter as conclusory and gave it no weight. 189 The ALJ also points out in his
decision that determinations that someone is “disabled” or “unable to work” as defined by
the Act are dispositive administrative findings, not medical opinions. 190

The

Commissioner argues that Ms. Ver Hoef was not an acceptable medical source qualified
under the regulations to render a medical opinion and reiterates that the agency has
responsibility for determining whether someone is disabled or unable to work. 191
The ALJ erred in rejecting wholesale Ms. Ver Hoef’s opinion and the Commissioner
is mistaken that Ms. Ver Hoef is not qualified to render a medical opinion. Although the
ALJ correctly states that it is the Commissioner’s responsibility to determine whether
someone is disabled—the ALJ cannot simply dismiss two years’ worth of treatment
records and the opinions contained therein without explanation. Moreover, although
statements made by medical providers that fall within the realm of dispositive
administrative findings are not treated as medical opinions afforded special deference,

187

A.R. 888.

188

A.R. 932-937.

189

A.R. 26.

190

A.R. 26.

191

Docket 26 at 10.

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neither are they to be rejected entirely. 192 First, Ms. Ver Hoef specifically discusses her
experiences while working with Mr. Gurnett in simulated “waiter settings” that were
included as part of his rehabilitation. 193 This discussion alone shows her opinion was not
conclusory. Second, a speech-language pathologist, such as Ms. Ver Hoef, is specifically
permitted to provide a medical opinion to establish speech or language impairments. 194
On remand, the ALJ is directed to evaluate all of Ms. Ver Hoef’s opinions using the
appropriate and required factors.
And although Mr. Gurnett has not claimed he suffers from a speech or language
impairment, many treating doctors have observed how challenging it is to have a linear,
concise, and direct dialogue with him. 195 Consequently, the evidence from Mr. Gurnett’s
speech-language pathologist should be considered, in addition to other objective medical

192

See 20 C.F.R. §§ 404.1527(d)(3), 404.1513(d).

193

A.R. 876.

194

20 C.F.R. § 404.1513(a)(5).

195

E.g., A.R. 946 (“his other limitation is his circumstantial thinking,” Dr. Rayess, March 13, 2013);
A.R. 809 (“rambling, digressive, and at times difficult to follow,” Dr. Fraser, Dr. Fraser, March 7,
2012); A.R. 812-13 (“thought process circumstantial” assessment “depression with anxiety,”
Kathy Chastain, A.N.P., March 3, 2012); A.R. 759 (“trouble retaining information and during visit
has difficulty maintaining focus,” Dr. Spaulding, Nov. 30, 2009); A.R. 896 (“Mr. Gurnett has a
tendency to run-on or get side-tracked [with] topics,” Ms. Ver Hoef, S.L.P., Oct. 29, 2008.
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records, to determine whether he has a speech or language impairment, and if so, how
severe it is as well as how it impacts his ability to work.
(B) Examining and Non-Examining Sources’ Opinions
“Generally,” the ALJ will “give more weight to opinions from [a claimant’s] treating
sources,” even if the treating source opinion is not given controlling weight. 196 And,
generally, the ALJ will “give more weight to the opinion of a source who has examined
[the claimant] than to the opinion of a source who has not examined [the claimant].”197
Mr. Gurnett claims that the ALJ erred in the relative weight he assigned to the opinions of
several non-treating sources.
Larry Levine, M.D., Paul Williams, M.D., Ronald Vincent, M.D.
Dr. Levine conducted an EIME of Mr. Gurnett in August 2007. At that time, Dr.
Levine was unable to make any diagnosis and had little by way of opinions, beyond the
need for conducting MRIs of Mr. Gurnett’s spine. 198

MRIs were completed shortly

thereafter. 199 Dr. Levine then diagnosed Mr. Gurnett with a normal thoracic spine, but
noted on the lumbar spine some multilevel degenerative changes with some disc
abnormality at most levels, and a small protrusion left of midline considered a small

196

20 C.F.R. § 404.1527(c)(2); see also Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (citing
SSR 96-2p, 61 Fed. Reg. 34,490, 34,491).
197

20 C.F.R. § 404.1527(c)(1).

198

A.R. 371-72.

199

A.R. 374-75.

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herniation contacting the S1 nerve root. 200 He opined that Mr. Gurnett had a three percent
whole person impairment from these spinal issues. 201 The ALJ does not discuss Dr.
Levine’s opinion at all in his decision; however, he does discuss the underlying MRI and
concluded that Mr. Gurnett’s degenerative disease of the lumbar spine was not a severe
impairment. 202 The ALJ did find that Mr. Gurnett had a severe impairment of degenerative
disc disease of the cervical spine. 203
Dr. Williams conducted two EIMEs of Mr. Gurnett, one in 2007 and one in 2008.
The 2007 EIME was conducted to determine whether cerebral angioplasty was
necessary. Dr. Williams concurred with the medical interpretation of Mr. Gurnett’s injury
and the recommended course of treatment. 204 At that time, he also found Mr. Gurnett
was not medically stable. In April 2008, post-angiograph, Dr. Williams conducted the
second EIME. In it, he opined that Mr. Gurnett had reached medical stability and that he
did not have a permanent impairment, but that he should not lift greater than 50 pounds
on an occasional basis. 205
The ALJ gave Dr. Williams’s opinion that Mr. Gurnett has a permanent restriction
against lifting greater than 50 pounds on an occasional basis only “limited weight.” 206 He

200

A.R. 365; see also A.R. 375 (MRI Report).

201

A.R. 365.

202

A.R. 16.

203

A.R. 15.

204

A.R. 441-43.

205

A.R. 436-37.

206

A.R. 25.

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stated he did so because the EIME conclusions were made based on information only up
until April 2008 and subsequent records revealed worsening of Mr. Gurnett’s left shoulder
impairment since then. 207
Dr. Vincent conducted an EIME in September 2009, again at the behest of the
insurance company for Mr. Gurnett’s former employer. 208 Dr. Vincent confirmed that the
2007 head trauma injury Mr. Gurnett sustained was the substantial cause on a “morethan-probable-than-not-basis” of Mr. Gurnett’s left carotid dissection and Horner’s
syndrome. 209 Dr. Vincent also opined that Mr. Gurnett had reached medical stability 210
and that Mr. Gurnett “absolutely has a [zero] percent impairment” from his left carotid
artery dissection as it would relate to his brain. 211 The ALJ gave Dr. Vincent’s opinion
that the left carotid artery dissection had a zero percent impairment great weight because
he found it reliable after considering the evidence. 212
Dr. Dennis, the state psychological consultant, conducted a review of Mr. Gurnett’s
medical records and opined that Mr. Gurnett had difficulty concentrating. Dr. Dennis also
noted evidence in the medical records indicating Mr. Gurnett did not have difficulties with
his activities of daily living. 213 Dr. Dennis, so far as the Court can glean from the record,

207

A.R. 25.

208

A.R. 463.

209

A.R. 476.

210

A.R. 479.

211

A.R. 462.

212

A.R. 25.

213

A.R.112, 124.

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did not conduct any examination of Mr. Gurnett. The ALJ gave “great weight” to Dr.
Dennis’s opinion that Mr. Gurnett “had no significant limitations in activities of daily living
or social functions, but is limited from complex task instructions.”214
Dr. O’Brien, the state medical consultant, also conducted a review of Mr. Gurnett’s
medical records. He opined that Mr. Gurnett was not credible and could return to work
as a server. 215 He also opined that Mr. Gurnett had limitations when reaching overhead
with either arm, could only occasionally climb ladders/ropes/scaffolds; could only
occasionally lift or carry fifty pounds, but could frequently lift or carry twenty-five pounds;
could stand, walk or sit for about six hours in an eight-hour workday, and should avoid
constant overhead reaching; but otherwise Dr. O’Brien identified no restrictions on Mr.
Gurnett’s physical abilities. 216 So far as the Court can discern, Dr. O’Brien, like Dr.
Dennis, did not conduct an actual examination of Mr. Gurnett.
The ALJ gave considerable weight to Dr. O’Brien’s opinion that Mr. Gurnett could
“stand and/or walk for a total of about 6 hours in an 8-hour workday; sit for a total of about
6 hour[s] in an 8-hour workday; occasionally climb ladders, ropes or scaffolds; and must
avoid ‘constant’ overhead reaching bilaterally.” 217 But the ALJ found that Dr. O’Brien had

214

A.R. 25.

215

A.R. 111,115, 130, 134.

216

A.R. 127-29.

217

A.R. 25.

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not adequately considered Mr. Gurnett’s subjective reports and therefore found that Mr.
Gurnett was instead limited to lifting and carrying at the light exertional level. 218
Having concluded above that the ALJ made non-harmless legal errors in his
evaluation of some of Mr. Gurnett’s treating source’s opinion, the Court need not reach
the issue of whether the ALJ erred in evaluating the examining and non-examining
sources’ opinions at this time. Upon remand, the ALJ is directed to reconsider these
opinions, according to each the requisite weight as indicated by the regulations and Ninth
Circuit precedent.
(2) Examining Physician Opinions by Disciplined Doctors
Mr. Gurnett next argues that the ALJ erred in relying on EIME’s conducted by two
different doctors who have both been disciplined by state medical boards. He has
provided disciplinary records for both Dr. Paul C. Williams and Dr. Ronald L. Vincent,
each of whom trained in neurosurgery. The Commissioner argues that neither doctor’s
disciplinary action has bearing on this case. 219 She claims that there is no evidence Dr.
Williams was not licensed in Oregon when he conducted the 2007 and 2008 EIMEs and
rendered his opinion in that state. 220 And she claims that Dr. Vincent was not “formally”
disciplined, but rather entered into a stipulation to informal disposition of a violation. 221 In
response to Mr. Gurnett’s suggestion that the ALJ could not rely on examinations done
218

A.R. 25.

219

Docket 26 at 13-14.

220

Docket 26 at 9.

221

Docket 26 at 13-14.

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at the behest of an insurer, 222 the Commissioner contends that the initial impetus for the
EIMEs is irrelevant. 223
The ALJ did not err in considering the opinions of either doctor. The EIMEs were
conducted in states where the doctors were licensed by that state’s medical board, Dr.
Williams in Oregon and Dr. Vincent in Washington. The doctors’ prior disciplinary records
do not completely undermine their medical opinions, even if those records may be
considered in determining the appropriate weight to give the opinions. The doctors
provided EIMEs in their field of expertise, i.e., neurosurgery. Neither opined outside their
field of expertise. In fact, Dr. Vincent specifically recommended other specialized EIMEs
when prompted to answer questions outside the field of neurosurgery. Consequently,
neither doctor was prohibited from conducting the EIMEs, and the underlying purpose for
the EIMEs does not preclude their consideration in these proceedings. 224 Lastly, the ALJ
did not wholesale adopt their recommendations and instead evaluated them in light of all

222

Docket 1 at 2.

223

Docket 26 at 14.

224

Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996)
(“The purpose for which medical reports are obtained does not provide a legitimate basis for
rejecting them. An examining doctor's findings are entitled to no less weight when the
examination is procured by the claimant than when it is obtained by the Commissioner.” (citing
Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D. Or. 1993))).

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the evaluations in the administrative record before him. The Court does not find error in
this regard.
(3) Lay Opinion of Mr. Constantino
“‘[C]ompetent lay witness testimony cannot be disregarded without comment’ and
‘in order to discount competent lay witness testimony, the ALJ must give reasons that
are germane to each witness.’” 225
In a thoughtful letter, Mr. Gurnett’s former boss, Steven Constantino, Esq.,
articulates his impression of Mr. Gurnett’s performance as an office assistant.

Mr.

Constantino was Mr. Gurnett’s employer for approximately six months while Mr. Gurnett
was studying to become a paralegal through the worker’s compensation rehabilitation
program.

Mr. Constantino hired Mr. Gurnett to work in his law office as an office

receptionist/administrative assistant. When hiring him, Mr. Constantino was aware of Mr.
Gurnett’s head trauma, prolonged absence from the workforce, and lack of previous
experience in clerical work. 226
Mr. Constantino states in his letter, “from the outset it was evident that Mr. Gurnett
had difficulty concentrating and focusing on his task at hand” and that Mr. Gurnett was
unable to retain or apply instructions. They tried breaking down simple tasks into a series
of “small carefully defined steps” that Mr. Gurnett strived to complete to perfection, but
the perfection became a “near obsession” causing delays in his efficiency.

225

Mr.

Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina v.
Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)) (alteration in original).

226

See A.R. 277-78.

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Constantino stated that Mr. Gurnett became anxious and somewhat confused with slight
day-to-day deviations from a learned routine.

He struggled with multi-tasking and

prioritizing between competing obligations. And despite six months at the job, Mr. Gurnett
“never achieved the level of independence, efficiency, or performance” Mr. Constantino
“expects from an entry level clerical staff after a few weeks.” Mr. Constantino opined that
Mr. Gurnett should not attempt to compete in the labor market for clerical jobs in the
private sector. 227
The ALJ gave “limited weight” to this letter because there was “no indication Mr.
Constantino is a health care professional” and his opinions “must be based on observing
the claimant and thus, based heavily on the claimant’s presentation and effort in the work
place.” The ALJ emphasized what he found to be a lack of objective and clinical evidence
in the administrative record supporting the gravity of limitations described by Mr.
Constantino. 228
The Commissioner mirrors the ALJ’s sentiments, contending Mr. Constantino’s
observations were merely based on Mr. Gurnett’s presentation and effort. And since the
ALJ found Mr. Gurnett to lack credibility, the Commissioner maintains that the ALJ could
necessarily discount Mr. Constantino’s opinion. 229 Moreover, the Commissioner argues,
the ALJ could properly reject the lay opinion when it was inconsistent with the clinical

227

A.R. 277-78.

228

A.R. 27.

229

Docket 26 at 18-19.

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evidence. 230 Mr. Gurnett counters that Mr. Constantino is qualified to opine on his ability
to perform at his job as an injured worker because he has been a practicing attorney for
thirty years, has helped to write Alaska disability law, and has served as a neutral hearing
officer for the Alaska worker’s compensation board. 231
The Court finds the ALJ erred in according only “limited weight” to Mr.
Constantino’s opinion, as he did not give reasons that were germane to this witness when
rejecting what appears to be competent evidence. Mr. Constantino’s letter describes how
he worked very closely with Mr. Gurnett, trying different approaches in an effort to skillbuild in the area of receptionist/administrative assistant for half a year to no avail. 232 Mr.
Constantino did not “simply parrot” Mr. Gurnett’s subjective complaints. 233 Rather, Mr.
Constantino—who, like Mr. Gurnett’s treating sources and unlike either the state
examiners or the ALJ, worked closely with him over a lengthy period—specifically
expressed his belief in Mr. Gurnett’s “genuine desire to succeed” by stating he “never
questioned Mr. Gurnett’s motivation or desire to succeed at his job” and that “it was
obvious to the entire staff that [Mr. Gurnett] was serious about his job [and] trying his
best.”234 But more importantly, Mr. Constantino’s opinion was based not on Mr. Gurnett’s
representations to Mr. Constantino, but on Mr. Constantino’s personal observation of Mr.

230

Docket 26 at 19 (citing Bayliss v. Barnhart, 277 F.3d 1211, 1218 (9th Cir. 2005).

231

Docket 1 at 5.

232

A.R. 277-78.

233

Cf. Hanes v. Colvin, No. 14-16055, 2016 WL 3212172, at *1 (9th Cir. June 10, 2016).

234

A.R. 278.

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Gurnett’s performance on the job. Thus, even if Mr. Gurnett’s credibility was properly
discounted, it would not justify disregarding Mr. Constantino’s objective observations.
As the ALJ erred in his assessment of the clinical data by improperly discounting
the opinions of Mr. Gurnett’s treating sources, the purported inconsistency with objective
data is not a valid basis for disregarding Mr. Constantino’s opinion—an opinion which, the
Court notes, appears to be quite consistent with many medical opinions concerning Mr.
Gurnett. 235
On remand, the ALJ is instructed to consider Mr. Constantino’s letter or give
reasons germane to him as to why it should be disregarded.
(4) Credibility Assessment of Mr. Gurnett
The ALJ is charged with determining credibility, resolving conflicts in testimony,
and resolving ambiguities in the record. 236 In order to find a claimant’s pain or symptom
testimony not credible, the ALJ must make two findings. 237 First, the ALJ “must determine
whether the claimant has presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms
alleged.” 238 Second, “if the claimant has produced that evidence, and the ALJ has not

235

Compare, e.g., A.R. 277 (“[I]t was evident that Mr. Gurnett had difficulty concentrating . . . was
easily distracted . . . seemed unable to retain instructions . . . showed a tendency to become
anxious . . . [and] had great difficulty multitasking . . . .”), with, e.g., A.R. 759 (“trouble retaining
information and during visit has difficulty maintaining focus,” Dr. Spaulding, Nov. 30, 2009).
236

Treichler v. Comm’r Soc. Sec. Admin, 775 F.3d 1090, 1099 (9th Cir. 2014).

237

Id. at 1102.

238

Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).

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determined that the claimant is malingering, the ALJ must provide ‘specific, clear and
convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the
claimant’s symptoms.”239
The Ninth Circuit explained that in giving “specific, clear and convincing” reasons,
the ALJ is required to “specifically identify the testimony [from a claimant] she or he finds
not to be credible and . . . explain what evidence undermines [that] testimony”; “[g]eneral
findings are insufficient.” 240 An ALJ “does not provide specific, clear, and convincing
reasons for rejecting a claimant’s testimony by simply reciting the medical evidence in
support of his or her residual functional capacity determination.”241 In short, the ALJ must
specify which testimony he finds not credible, and then provide clear and convincing
reasons, supported by evidence in the record, to explain that credibility determination.
Here, the ALJ found that Mr. Gurnett’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; but that his “statements
concerning the intensity, persistence and limiting effects of these symptoms” were not
entirely credible. 242 Specifically, the ALJ found that Mr. Gurnett’s statements regarding:
(1) the severity of Horner’s syndrome were not wholly credible; 243 (2) the severity of his

239

Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)); see also Burrell v. Colvin,
775 F.3d 1133, 1136-37 (9th Cir. 2014) (specifically rejecting government’s argument that clear
and convincing requirements does not apply).
240

Id. (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001), and Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1995)) (alterations and omission in original).

241

Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

242

A.R. 21.

243

A.R. 21.

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cervical spine impairment were not wholly credible due to a lack of objective evidence
and the lack of consistent and significant clinical findings; 244 (3) the left shoulder
impairment were inconsistent with objective medical evidence, his treatment-seeking
behavior, and the nature of the treatment he received for his shoulder; 245 (4) cognitive
impairment were not consistent with objective medical evidence or his examination results
and thus not wholly credible; 246 (5) anxiety and PTSD symptom severity were not
supported by objective evidence, his treatment-seeking behavior, or clinical findings and
thus not wholly credible; 247 and (6) debilitating side effects of his medications were not
wholly credible. 248 The ALJ also pointed to other reasons to question Mr. Gurnett’s
credibility, including his tendency “to exaggerate symptoms,” his ability to perform
activities of daily living not only for himself, but also for his mentally impaired partner. The
ALJ also identified certain comments made by doctors regarding Mr. Gurnett’s poor effort
in physical exertion tests and simultaneous capacity to be a poor historian and yet recall
specific details on other matters. 249
Mr. Gurnett responds that being over-reactive is not the same thing as
exaggerating. 250 And he points to medical evidence in the administrative record to

244

A.R. 22.

245

A.R. 22-23.

246

A.R. 23.

247

A.R. 23-24.

248

A.R. 24.

249

A.R. 24-25.

250

Docket 1 at 4.

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support his claims and refers to other providers that are not in the record, e.g., “Dr.
Cherry.” 251 The Commissioner asserts that Mr. Gurnett is merely unhappy with the ALJ’s
interpretation of the evidence, and even though Mr. Gurnett has an alternate
interpretation, it is the ALJ’s responsibility to weigh the evidence, 252 and that the ALJ
provided legally sufficient reasons for finding Mr. Gurnett’s statements not entirely
credible. 253
The Court declines to address this issue at this time. Because the case is being
remanded to the ALJ for further proceedings to address the opinions of Mr. Gurnett’s
treating sources, the ALJ may find that Mr. Gurnett’s statements regarding the intensity,
persistence and limiting effects of his symptoms are credible. The Court notes that the
ALJ has not found that Mr. Gurnett is malingering. Indeed, most treating sources express
their belief in the genuineness in Mr. Gurnett’s efforts to improve and follow through with
advice or instruction. 254 The ALJ is obligated to provide “‘specific, clear and convincing
reasons for’ rejecting his statements regarding the severity of his symptoms” 255 on

251

See Docket 1 at 3.

252

Docket 26 at 14.

253

Docket 26 at 11, 16.

254

E.g., A.R. 497 (“[Mr. Gurnett’s] good performance … speaks positively about his level of effort
on tasks sensitive to memory and his general approach to testing”, malingering screening by Dr.
Craig, August 2008).

255

Treichler v. Comm’r, Soc. Sec. Admin, 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen
v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
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remand should he continue to find that Mr. Gurnett’s statements related to the intensity,
persistence, and limiting effects of his symptoms are not credible.
(5) Factual Errors and Mischaracterizations in the ALJ’s decision
Factual Errors
Mr. Gurnett claims that the following assertions in the ALJ’s decision were factually
inaccurate: (1) that Mr. Gurnett had not undergone surgery on his neck for the internal
carotid dissection; (2) that Mr. Gurnett had fusion performed on his vertebrae; 256 (3) that
the neuropsychology evaluation conducted of Mr. Gurnett was in 2009; and (4) that Mr.
Gurnett did not receive treatment at Providence and ANHC prior to 2013. 257

The

Commissioner admitted to the first three errors and argues that they are harmless and
thus this Court cannot take action on them. 258 The Commissioner did not respond to the
fourth claim of factual error.
“An error is harmless only if it is ‘inconsequential to the ultimate non-disability
determination.’” 259 The first three errors Mr. Gurnett points out to do not impact his
disability determination and thus are inconsequential and harmless.

Regarding the

neuropsychological evaluation, the year it was conducted is relevant to establish that it
occurred after the alleged onset date of disability, i.e., October 2007. But as between

256

The Court interprets Mr. Gurnett’s statement “there is no past fusion. No fusion has been
done” to relate to his vertebrae and not his eyes, where fusion is an issue. See Docket 1 at 3;
A.R. 47; see also Docket 26 at 12.
257

Docket 1 at 3, 4.

258

Docket 26 at 10, 12, 17.

259

Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d
1104, 1115 (9th Cir. 2012)).
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2008 and 2009 it does not matter. If the ALJ had chosen to ignore the evaluation or had
pre-dated it to substantially before the alleged onset date, then there may be cause to
address the error. As it is, any factual misstatement as between 2008 and 2009 is
harmless.
As to the ALJ’s error that Mr. Gurnett had undergone a fusion procedure, it actually
likely favored Mr. Gurnett. Having one’s vertebrae fused is a permanent procedure that
likely has a negative consequence to one’s range of motion. It would be an additional
impairment that the ALJ would have been required to consider. And because it appears
the ALJ believed the fusion had occurred, the impairment was likely considered in Mr.
Gurnett’s RFC determination.
The error that Mr. Gurnett’s had not undergone surgery for his internal carotid
dissection is more troubling; but it does not rise to the level of reversible error. The ALJ
must have assessed Mr. Garnett’s physical condition after the surgery as it is pervasive
in the medical records. His physical condition was affected by the surgery and thus the
surgery’s impact is necessarily incorporated into the medical records. Had the ALJ failed
to review, assess, and evaluate Mr. Gurnett’s physical condition post-surgery to formulate
his RFC because he did not understand Mr. Gurnett had undergone surgery, then the
error might have risen to the level of affecting the ultimate non-disability determination.
But that is not the case here.
Regarding the error that Mr. Gurnett did not receive treatment at Providence and
ANHC prior to 2013 for anxiety or anxiety-related impairments, the Court finds the ALJ
did err and that the error is not harmless. Mr. Gurnett had been seeing Kathy Chastain,

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A.N.P., at ANHC from as early as June 2011, 260 and he saw Dr. Fraser beginning in March
2012. 261 Moreover, he was seen by Ms. Warnock, L.C.S.W. regularly from April 2006 262
to November 2007. 263 On remand, the ALJ is directed to take into consideration Mr.
Gurnett’s seven-year-plus span of on-going anxiety issues when making a credibility
determination about his statements related to the intensity, persistence, and limiting
effects of the impairment as well as its impact on his other impairments.
Mischaracterizations
The following mischaracterizations are alleged by Mr. Gurnett: (1) that overreacting
is not the same as exaggerating; (2) that insurance-induced referrals for medical opinions
and referrals by treating doctors are not the equivalent of treatment-seeking behavior; (3)
that Mr. Gurnett did not voluntarily terminate his physical therapy; 264 and (4) that he did
not move apartments by himself, but instead hired movers. 265
The

Commissioner

specifically

responded

to

the

third

and

fourth

mischaracterization complaints. She claims the record does not support Mr. Gurnett’s
assertion that movers helped him move apartments and cites to a provider who “noted
that he was ‘Moving apartments’ in the context of him having ‘no new complaints of

260

A.R. 825.

261

A.R. 809.

262

A.R. 425.

263

A.R. 392.

264

Docket 1 at 4.

265

Docket 1 at 4; see A.R. 887.

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pain.’” 266 The Commissioner also asserts that even if Mr. Gurnett stopped his physical
therapy because of a lack of insurance coverage, the ALJ “cited to other evidence that
undermined [his] allegations of disabling left shoulder pain.” 267
The Court invites the ALJ to consider these contentions on remand. Mr. Gurnett
is correct that “overreacting” emotionally is not the same as exaggerating and is not
necessarily an indicator of lack of credibility. Certainly visiting doctors at the request or
insistence of an insurer or employer is not treatment-seeking behavior. If Mr. Gurnett did
indeed cease physical therapy because of a lack of insurance, the ALJ should consider
that fact. And the Commissioner is mistaken that there is no evidence to support Mr.
Gurnett’s assertion with regard to hiring movers. Ms. Ver Hoef states in a progress
summary that “[Mr. Gurnett] was able to make arrangements for others to help him move
to a new apartment and did what he could to help.”268
(6) Hostile Environment Created by ALJ at Evidentiary Hearing & Biased
Opinion
Mr. Gurnett alleges the ALJ made his disability benefits appeals hearing hostile
and intimidating. He also asserts that ALJ has “created a toxic and inequitable field for
disability plaintiffs in the Anchorage area” in a deliberate and conspiratorial manner to
undermine their rights to disability benefits. 269 He attached to his briefing two letters from

266

Docket 26 at 15.

267

Docket 26 at 14.

268

A.R. 887.

269

Docket 30.

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then–United States Senator, Mark Begich, to the Commissioner dated May 20, 2013,270
and April 30, 2014; 271

a joint resolution from the Alaska Legislature introduced in

February 2014; 272 and a report from the Disability Law Center of Alaska dated March
2014 regarding Alaska ALJ disability benefit decision statistics compared to national
averages. 273
Mr. Gurnett was represented by counsel at the administrative hearing. The Court
is not persuaded that Mr. Gurnett was harmed by the ALJ’s direction at that hearing that
Mr. Gurnett not talk and instead allow his attorney to address the ALJ as his
representative. Even if the ALJ’s tone was harsh, that would not violate Mr. Gurnett’s due
process rights. And any hostility that Mr. Gurnett may have felt should have been
tempered by his attorney’s presence, which Mr. Gurnett does not allege to be inadequate
or otherwise deficient.
As to the allegation of a generally toxic and inequitable field for all disabilitybenefit–seeking plaintiffs in Alaska, the Court takes no position. This Court and this
proceeding is not the proper venue to raise general concerns regarding the SSA or any
specific concerns about the ALJ’s overall performance in handling disability benefit

270

Docket 30-1 at 1.

271

Docket 30-1 at 4-5.

272

Docket 30-1 at 2-3.

273

Docket 30-1 at 6-20.

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claims. Absent direct injury suffered by Mr. Gurnett because of the ALJ’s actions, there
is no relief available from this Court concerning that particular allegation.
V.

CONCLUSION

The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not supported by substantial evidence and are not free from legal
error.

Accordingly, IT IS ORDERED THAT Docket 1 is GRANTED IN PART, the

Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA for
further proceedings consistent with this decision.
The Court also GRANTS the Commissioner’s Motion for Reconsideration at
Docket 32. The Court did not consider the additional evidence on the CD. However, on
remand Mr. Gurnett shall be permitted to present the evidence on the CD to the ALJ for
appropriate consideration.
The Clerk of Court is directed to enter judgment accordingly.
DATED this 30th day of September, 2016, in Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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