Buskohl v. Social Security Administration Commissioner
Filing
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ORDER that the Clerk enter judgment affirming the final decision of the Commissioner of Social Security. The Clerk will terminate this case. Signed by Judge Neil V Wake on 11/28/11. (TLJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Dyan Buskohl,
No. CV 10-02115-PHX-NVW
Plaintiff,
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vs.
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ORDER
Commissioner of Social Security,
Defendant.
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Plaintiff Dyan Buskohl applied for disability benefits and was denied initially and
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upon reconsideration. She then received two hearings before Administrative Law Judge
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Joan G. Knight, who eventually determined that Buskohl had been disabled for a closed
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period. Buskohl has appealed to this Court under 42 U.S.C. §§ 405(g) and 1383(c)(3),
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arguing that the she has been disabled both before and since the closed period. The
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ALJ’s decision will be affirmed.
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I.
BACKGROUND
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A.
Buskohl’s Medical, Occupational, and Social History
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The ALJ granted a closed period of disability from May 6, 2006 to June 30, 2007
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(“Closed Period”). Given this conclusion, and Buskohl’s challenges to it, Buskohl’s
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history is best understood by dividing it into four time periods: (1) before the alleged
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disability onset date of September 30, 2004; (2) from the alleged onset date to the
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beginning of the Closed Period; (3) during the Closed Period; and (4) from the end of the
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Closed Period to the time of the ALJ’s decision.
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1.
Buskohl’s Condition Before the Alleged Disability Onset Date
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Before the alleged onset of her disability in 2004, Buskohl had a high school
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education and worked as a cashier and a retail salesperson. Buskohl claims that mental
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health troubles — which have existed since childhood — plagued her during this period
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of life. She frequently felt depressed, and began receiving prescription antidepressant
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drugs as early as 2002. Despite her medications, she had difficulty staying on task at
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work, interacting appropriately with co-workers and customers, and similar problems.
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She was fired from her last job, in 2004, supposedly based on an accusation of theft,
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although Buskohl believes that her pregnancy at that time was the true motivating factor.
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Buskohl did not take her antidepressant medications while pregnant, but she
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resumed those medications in September 2004, shortly after her baby was born. Buskohl
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now claims that her disability began on September 30, 2004, at age 21.
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Buskohl’s Condition from the Alleged Onset Date to the
Beginning of the Closed Period
From October 2004 through April 2006, Buskohl’s medical records reflect GAF
scores between 50 and 55.1 Buskohl continued to have depressed episodes, including
thoughts of suicide, as well as manic episodes. As early as December 2004, and possibly
earlier, Buskohl was diagnosed as bipolar.
Her doctors adjusted her medication in
response to her symptoms, with varying success.
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GAF, or “Global Assessment of Functioning,” ranks psychological, social, and
occupational functioning on a hypothetical continuum of mental illness ranging from zero
to 100. A GAF rating of 31 to 40 indicates some impairment in reality testing or
communication, or major impairment in several areas such as work, family relations,
judgment, thinking, or mood; a rating of 41 to 50 indicates serious symptoms or serious
impairment in social or occupational functioning; a rating of 51 to 60 indicates moderate
symptoms or moderate difficulty in social or occupational functioning; and a rating of 61
to 70 indicates “mild symptoms” or some difficulty in social or occupational functioning,
but generally functioning well. See Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 32 (Text Rev. 4th ed. 2000).
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Buskohl spent most of her days taking care of her son, but Buskohl lived with her
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parents and relied on them to take care of her son when Buskohl was in a mentally
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unbalanced state.
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housework.
During such states, she often neglected personal grooming and
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During this time period, Buskohl apparently chatted with men on the Internet and
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then met with them in person on occasion. She also interacted with a nearby cousin, and
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she dated a man she met at a Sonic Drive-In restaurant.
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In early 2006, medical professionals described Buskohl’s symptoms as “anger,
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irritability, frustration, emotional[] sensitivity, depression, low energy, past [suicidal
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ideation], impulsivity (pierced tongue without thought, spending [money] excessive[ly],
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hypersexual) and sleeplessness for days.” (Tr. 650.)
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3.
Buskohl’s Condition During the Closed Period
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In early May 2006, Buskohl checked into a suicide prevention program. Buskohl
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reported experiencing vivid dreams, including dreams about harming her son. Buskohl
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had also been thinking about suicide more frequently. She checked herself out a few
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days later because she did not like the treatment.
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depression, mania, anxiety, irritability, impulsiveness, and sleep problems continued at a
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more pronounced level. The state of Arizona determined that Buskohl was “SMI,” or
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seriously mentally ill, in late May 2006. In July 2006, a psychiatrist, Dr. Zerrudo, began
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treating Buskohl on a fairly regular basis. Dr. Zerrudo (or his staff) frequently adjusted
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Buskohl’s medications.
Nonetheless, her symptoms of
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During the Closed Period, Buskohl’s GAF scores started at 35 (when she checked
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herself into treatment) and remained low for a few months, but improved to 70 by April
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2007, then receded to the 60–65 range in May 2007.
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In June 2007, at the end of the closed period, a state agency examining doctor, Dr.
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Salk, interviewed Buskohl as part of the disability application process. Dr. Salk opined
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that Buskohl was “moderately limited” in her ability to maintain attention and
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concentration for extended periods, to complete a normal workday, to get along with co-3
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workers, and to set goals and act independently. (Tr. 342–45.) Dr. Salk concluded that
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Buskohl was only mildly limited, if at all, in other areas of life.
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Buskohl’s Condition from the End of the Closed Period to the
Time of the ALJ’s Decision
After the Closed Period, Buskohl continued to suffer symptoms of her mental
ailments, and her medications were frequently adjusted. Despite her symptoms, some of
Buskohl’s care providers noted progress, including better attention, concentration,
insight, and judgment. Sometimes Buskohl reported that her medications were working.
Buskohl also apparently spent more time playing with her son, visiting a friend, going out
to eat, and swimming.
In October 2008, Buskohl’s treating psychiatrist, Dr. Zerrudo, opined that Buskohl
was “severe[ly]” limited in her ability to accept, understand, remember, and carry out
detailed instructions, and her ability to respond appropriately to criticism. Dr. Zerrudo
also noted “moderately severe” limitations in Buskohl’s ability to complete a normal
workday, to get along with co-workers, to respond to changes in work setting, and to
travel to unfamiliar places or use public transportation.
Finally, Dr. Zerrudo (like
Dr. Salk) noted “moderate” limitation in Buskohl’s ability to maintain attention and
concentration for extended periods.
(Tr. 416–21.)
Dr. Zerrudo reached identical
conclusions in April 2009. (Tr. 737–42.)
Buskohl’s GAF scores during this time began in the 60–65 range, and fluctuated
from a high of 65–70 in October 2007 to a low of 50 in April 2009.
B.
Administrative Proceedings
1.
Buskohl’s First ALJ Hearing
Buskohl first appeared before the ALJ in February 2009. At the hearing, she
related her history and symptoms generally as described above. She claimed inability to
work because she loses concentration easily, gets overwhelmed easily, has trouble
handling criticism or even the thought of potential criticism, and impulsively says
inappropriate things. Buskohl reported napping during the day — while her son is at
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preschool — because her medications sometimes make her sleepy. Other days, she has
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manic episodes where she has too much energy and cannot stop doing projects. She
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reported socializing only with family members. She also confirmed that she can drive,
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and that she uses a computer daily.
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A vocational expert, Sandra Richter, also testified at the hearing. The expert
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classified Buskohl’s previous jobs as light, semi-skilled.
The ALJ did not ask the
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vocational expert if Buskohl could still perform any of her previous jobs. Instead, the
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ALJ asked the vocational expert “to consider a hypothetical person the same age,
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education and work history as Ms. Buskohl. If this person were restricted to simple,
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unskilled work tasks, is there any work this hypothetical person could perform?”
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(Tr. 92.) In response, the expert identified packaging, production, and inspector positions
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existing in substantial numbers in the national and local economies. (Id.)
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When asked by the ALJ whether work existed for a person who matches
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Dr. Zerrudo’s October 2008 opinion of Buskohl (i.e., a person with several severe and
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moderately severe mental limitations), the expert opined that no work existed. When
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asked by Buskohl’s counsel whether work existed for a person with “moderately limited
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. . . ability to maintain attention and concentration for extended periods” (apparently a
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reference to Dr. Salk’s July 2007 opinion), the expert responded elliptically: “any job . . .
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[requires] maintain[ing] attention and concentration throughout the working day.” (Tr.
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93–94.) When asked by Buskohl’s counsel whether work existed for Buskohl, “[i]f we
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accepted her testimony,” the expert replied, “I believe that based on her testimony, she
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cannot work.” (Tr. 95.)
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2.
Buskohl’s Second ALJ Hearing
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In April 2009, the ALJ convened a second hearing to take testimony from
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Dr. Finn, a state agency reviewing (i.e., non-examining) physician and medical expert. It
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quickly became apparent that Dr. Finn had not received all of Buskohl’s medical records.
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Specifically, he did not have Dr. Zerrudo’s October 2008 and April 2009 opinions.
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Nonetheless, the hearing went forward based on the many other records Dr. Finn
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reviewed, including Dr. Zerrudo’s treatment records.
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Dr. Finn did not explain his view of the evidence before May 2006. Dr. Finn
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concluded that Buskohl was markedly limited in her social functioning from the time she
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checked herself into suicide prevention care in May 2006 through about June 2007.
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Between May 2006 and June 2007, he saw evidence of Buskohl’s difficulties with all
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aspects of life. But Buskohl’s gradually rising GAF scores convinced Dr. Finn that
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Buskohl had substantially improved by the end of June 2007, to the point of only
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moderate or mild limitations. Like Drs. Zerrudo and Salk, Dr. Finn opined that Buskohl
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continues to have “moderate” limitations in her ability to maintain attention and
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concentration for extended periods.
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instructions, Dr. Finn testified that Buskohl’s impairment would be “mild if it were
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simple, routine work.” (Tr. 63.)
As to the ability to understand and carry out
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Regarding the period before May 2006, Buskohl’s attorney asked Dr. Finn if his
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opinion might change if he had seen a document from the state declaring Buskohl serious
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mentally ill in May 2005, or a document from December 2004 stating a GAF score of 51.
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Dr. Finn responded that he had not seen any such documents, but the May 2005 SMI
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determination, if it existed, could influence his opinion, and the December 2004 GAF
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score of 51 would indicate “serious impairments in both social and occupational
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functioning” at that time. (Tr. 65–66.)
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The ALJ concluded the hearing by apologizing for not having forwarded all of
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Buskohl’s medical records to Dr. Finn.
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disability back to the onset date based in part on records Dr. Finn had not seen. The ALJ
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responded:
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Buskohl’s attorney urged the ALJ to find
Well, how about this, since I have this opinion regarding [a]
specific time period [i.e., May 2006 through June 2007], I’m
going [to go] ahead and look at this again . . . and compare it.
If there’s nothing inconsistent, then I won’t go ahead and
reschedule a supplemental hearing. If it’s a question I cannot
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resolve favorably to Ms. Buskohl, I’ll go ahead and schedule
a supplemental hearing.
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(Tr. 67.) The ALJ did not call a supplemental hearing.
C.
The ALJ’s Decision
At its core, the ALJ’s opinion relies on Dr. Finn’s conclusions. The ALJ therefore
granted the Closed Period of disability from May 4, 2006 through June 30, 2007.
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Pre-Closed Period Reasoning
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According to the ALJ, Buskohl had “no more than minimal limitations” before the
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Closed Period. “She maintained an active lifestyle and social life during her pregnancy
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and after her baby was born.” (Tr. 34.) “Active lifestyle and social life” seems to refer to
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Buskohl’s habit of meeting people with whom she chatted on the Internet, her boyfriend
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from Sonic Drive-In, and perhaps interaction with her cousin. The ALJ also noted that
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Buskohl was “the primary caregiver of son” and “[c]aring for young children can be quite
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demanding which tends to suggest that she [was] not . . . significantly limited.” (Tr. 36.)
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The ALJ also concluded that Buskohl’s medications produced “good results prior to May
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2006.” (Tr. 39.)
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Post-Closed Period Reasoning
Regarding the post-Closed Period time frame, the ALJ explicitly adopted Dr.
Finn’s conclusions, summarizing them as follows:
The medical expert [Dr. Finn] testified that from July 2007 to
the date of the hearing, [Buskohl] had a mild to moderate
restriction in activities of daily living, a moderate impairment
in social functioning and moderate difficulty maintaining
concentration, persistence and pace. . . . The medical expert
further testified that he felt that the claimant could have
completed a normal work day and respond appropriately to
supervision from June 2007 to the present. During this time
frame, she would have been able to get along with coworkers
and peers. She could have completed a normal workday
without psychologically based symptoms. She would have a
moderate impairment getting along with supervisors and
accepting criticism. . . . [S]he would have encountered
problems with responding favorably on a consistent basis.
[Buskohl]’s ability to understand and remember and carry out
simple instructions was mildly impaired. . . . [Buskohl]
would be able to have routine interaction with the public, but
not frequent interaction. She could complete job tasks and
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work effectively with the public, so long as it would be
sustainable work without job changes. If simple and routine
tasks, she would do fairly well. The undersigned agrees with
and adopts the opinion of the medical expert.
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(Tr. 33–34.) The ALJ also claimed “overwhelming evidence in the record to support the
[Dr. Finn]’s testimony that the claimant’s condition did improve and that she has not
been precluded from performing all work related activity since June 30, 2007.” (Tr. 34.)
The ALJ did not elaborate on this “overwhelming evidence” except to again note that
Buskohl is her son’s primary caregiver, and that Buskohl could perform household chores
and run errands. The ALJ also noted that Buskohl was functional enough to help her
father after he had a motorcycle accident, and that Buskohl’s claimed inability to
concentrate was belied by “activities which require the ability to concentrate such as
driv[ing] and us[ing] a computer.” (Tr. 36.)
As for Dr. Zerrudo, the ALJ did not give his evaluations controlling weight
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for several reasons. Dr. Zer[r]udo has reported that [Buskohl]
has moderate to severe limitations in a number of areas.
However as previously discussed, treatment records indicate
that [Buskohl]’s condition has been stable with medication
and [her] Global Assessment of Functioning have [sic] been
as high as 70, which does not support a finding that the
claimant has a moderate to severe limitation in any area.
Moreover, [Buskohl]’s activity level suggests that she would
not have moderate to severe limitations in the areas noted.
[She] has been able to care for her young son and she has
been the primary caregiver. Similarly, while [she] may have
some limitation in social functioning, treatment records do
not support a finding of moderate to severe limitations in this
area.
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(Tr. 41.)
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Concerning Dr. Salk’s June 2007 conclusions, the ALJ stated that “Dr. Salk’s
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opinion supports the conclusion reached in this decision that [Buskohl]’s condition was
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improving by June 2007.” (Tr. 35.)
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3.
Residual Functional Capacity & Available Jobs
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The ALJ’s opinion assessed Buskohl’s residual functional capacity as follows:
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“capacity to perform a full range of work at all exertional levels but with the following
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nonexertional limitations: the claimant is limited to simple unskilled work tasks.”
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(Tr. 36.) The opinion goes on to state that “[t]he vocational expert testified that this
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claimant, given the above noted limitations, is unable to perform the demands of her past
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relevant work.” (Tr. 43.) Although the vocational expert offered no such testimony, the
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ALJ nonetheless “agreed” with it and concluded that Buskohl cannot perform her past
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work. The ALJ then agreed with the vocational expert’s actual testimony, concluding
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that Buskohl retains the capacity to perform certain simple, unskilled jobs — packager,
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production worker, and inspector. Sufficient numbers of these jobs exist in both the
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national and local economy. Accordingly, the ALJ found Buskohl not disabled outside of
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the Closed Period.
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II.
GENERAL STANDARD OF REVIEW
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The Court will uphold the ALJ’s final decision if it is supported by substantial
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evidence and not based on legal error. See 42 U.S.C. § 405(g); Smolen v. Chater, 80 F.3d
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1273, 1279 (9th Cir. 1996). The substantial evidence standard requires the evidence, as a
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whole, to be “more than a mere scintilla but not necessarily a preponderance” and
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otherwise sufficient such that “a reasonable mind might accept [the evidence] as adequate
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to support a conclusion.” Tomassetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
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(internal quotation marks omitted). Further, if the “evidence is susceptible to more than
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one rational interpretation” and the ALJ’s decision is supported by one such rational
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interpretation, the Court will affirm the ALJ. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
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2007).
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The Court will review only the issues raised by the party challenging the ALJ’s
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decision. See Lewis v. Apfel, 235 F.3d 503, 517 n.13 (9th Cir. 2001). The Court will not
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reverse for harmless error, which exists “when it is clear from the record that the ALJ’s
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error was inconsequential to the ultimate nondisability determination.” Tomassetti, 533
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F.3d at 1038 (internal quotation marks omitted). However, the Court will “review the
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ALJ’s decision based [only] on the reasoning and factual findings offered by the ALJ.”
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Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 (9th Cir. 2009). The Court will not
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“attempt to intuit what the adjudicator may have been thinking.” Id.
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III.
ANALYSIS
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A.
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Buskohl argues that she did not receive a full and fair hearing because the ALJ did
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not call a third evidentiary hearing, as the ALJ suggested she might do because Dr. Finn
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had not received all of Buskohl’s medical records. But it’s not clear that the ALJ can be
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held by estoppel to her promise of another hearing,2 and in any event, the ALJ’s opinion
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about Buskohl before May 2006 did not rely on medical evidence for which expert
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medical interpretation from Dr. Finn might be needed. Instead, the ALJ focused on
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Buskohl’s activity level, including her ability to care for her son, to help out around the
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Before the Closed Period
house, and to socialize outside of the house.
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Buskohl disputes the ALJ’s interpretation of her activity level. However, the
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“evidence is susceptible to more than one rational interpretation” and the ALJ’s decision
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offers one such rational interpretation. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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Accordingly, it will be affirmed. Id.
B.
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After the Closed Period
1.
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Buskohl’s Credibility
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“[A] claimant who alleges disability based on subjective symptoms” — such as
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Buskohl’s mental limitations — “need not produce objective medical evidence of the
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[symptom] itself, or the severity thereof.” Smolen, 80 F.3d at 1281–82. Instead, she
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must (a) “produce objective medical evidence of an impairment or impairments” and
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(b) “show that the impairment or combination of impairments could reasonably be
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expected to (not that it did in fact) produce some degree of [the subjective] symptom.”
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Id.
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The ALJ here found these two elements satisfied, but also discounted Buskohl’s
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credibility. Given this, the ALJ could not reject Buskohl’s testimony about the limiting
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See generally Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990)
(discussing estoppel against a government agency); Schweiker v. Hansen, 450 U.S. 785
(1981) (same).
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effects of her mental problems without “mak[ing] specific findings stating clear and
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convincing reasons for doing so. The ALJ [was required to] state specifically which
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symptom testimony is not credible and what facts in the record lead to that conclusion.”
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Id. at 1284 (citation omitted); see also Morgan v. Comm’r of SSA, 169 F.3d 595, 599 (9th
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Cir. 1999) (“The ALJ must specifically identify what testimony is credible and what
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testimony undermines the claimant’s complaints.”). Whether the ALJ properly did so
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matters because the vocational expert testified that there would be no work for someone
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with the limitations Buskohl ascribes to herself.
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Here, the ALJ fulfilled her duty explain her decision with clear and convincing
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reasons. The ALJ compared Buskohl’s statements about what she cannot do to the
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statements about the many things she can do.
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statements to her medical records, which show that Buskohl’s symptoms were well-
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controlled with medication before and after the Closed Period, as reflected by her GAF
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scores.
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Buskohl’s limitations are far less severe than Buskohl claims. The ALJ did not err in
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discounting Buskohl’s credibility.
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The ALJ also compared Buskohl’s
The ALJ therefore clearly and convincingly explained her conclusion that
2.
Weight of Medical Expert Testimony
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Once a person becomes disabled, the government may not withdraw disability
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benefits unless there is substantial evidence of “medical improvement . . . (other than
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medical improvement which is not related to the individual’s ability to work)” permitting
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the person to engage in substantial gainful activity. 42 U.S.C. § 1382c(a)(4)(A)(i)(I)–(II).
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Buskohl argues that substantial evidence of medical improvement did not exist, with
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heavy emphasis on the ALJ’s weighing of the various doctors’ opinions.
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a.
Legal Standard
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In this case, whether substantial evidence of medical improvement existed turned
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in large part on the ALJ’s treatment of Dr. Zerrudo’s, Dr. Salk’s, and Dr. Finn’s
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respective opinions. In weighing medical source opinions in Social Security cases, the
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Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, such
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as Dr. Zerrudo, who actually treat the claimant; (2) examining physicians, such as Dr.
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Salk, who examine but do not treat the claimant; and (3) non-examining physicians, such
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as Dr. Finn, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821,
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830 (9th Cir. 1995). Generally, more weight should be given to the opinion of a treating
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physician than to the opinions of non-treating physicians. Id. A treating physician’s
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opinion is afforded great weight because such physicians are “employed to cure and
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[have] a greater opportunity to observe and know the patient as an individual.” Sprague
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v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).
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Where a treating physician’s opinion is not contradicted by another physician, it
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may be rejected only for “clear and convincing” reasons, and where it is contradicted, it
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may not be rejected without “specific and legitimate reasons” supported by substantial
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evidence in the record. Lester, 81 F.3d at 830. Moreover, the ALJ must give weight to
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the treating physician’s subjective judgments in addition to his clinical findings and
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interpretation of test results. Id. at 832–33.
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An examining physician’s opinion generally must be given greater weight than
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that of a non-examining physician. Id. at 830. As with a treating physician, there must
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be clear and convincing reasons for rejecting the uncontradicted opinion of an examining
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physician, and specific and legitimate reasons, supported by substantial evidence in the
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record, for rejecting an examining physician’s contradicted opinion. Id. at 830–31.
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The opinion of a non-examining physician is not itself substantial evidence that
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justifies the rejection of the opinion of either a treating physician or an examining
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physician. Id. at 831. Factors that an ALJ may consider when evaluating any medical
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opinion include “the amount of relevant evidence that supports the opinion and the
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quality of the explanation provided; the consistency of the medical opinion with the
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record as a whole; [and] the specialty of the physician providing the opinion.” Orn, 495
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F.3d at 631. The opinion of any physician, including a treating physician, need not be
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accepted, “if that opinion is brief, conclusory, and inadequately supported by clinical
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findings.” Bray v. Comm’r, 554 F.3d 1219, 1228 (9th Cir. 2009).
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Moreover, Social Security regulations expressly require a treating source’s opinion
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on an issue of a claimant’s impairment be given controlling weight if it is well-supported
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by medically acceptable clinical and laboratory diagnostic techniques and is not
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inconsistent with the other substantial evidence in the record.
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§ 404.1527(d)(2). If a treating source’s opinion is not given controlling weight, the
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weight that it will be given is determined by length of the treatment relationship,
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frequency of examination, nature and extent of the treatment relationship, relevant
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evidence supporting the opinion, consistency with the record as a whole, the source's
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specialization, and other factors. Id.
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20 C.F.R.
Finding that a treating physician’s opinion is not entitled to controlling weight
does not mean that the opinion should be rejected:
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[A] finding that a treating source medical opinion is not wellsupported by medically acceptable clinical and laboratory
diagnostic techniques or is inconsistent with the other
substantial evidence in the case record means only that the
opinion is not entitled to “controlling weight,” not that the
opinion should be rejected. Treating source medical opinions
are still entitled to deference and must be weighed using all of
the factors provided in 20 C.F.R. § 404.1527. . . . In 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.
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Orn, 495 F.3d at 631–32 (quoting Social Security Ruling 96-2p). Where there is a
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conflict between the opinion of a treating physician and an examining physician, the ALJ
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may not reject the opinion of the treating physician without setting forth specific,
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legitimate reasons supported by substantial evidence in the record. Id. at 632.
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b.
The ALJ’s Weighing of Dr. Zerrudo’s, Dr. Salk’s, and
Dr. Finn’s Opinions
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The following table compares the doctors’ opinions regarding the various mental
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limitations the Social Security Administration has deemed relevant in deciding whether a
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claimant can hold down a job. In this table, 0 = no limitation, 1 = mild limitation, 2 =
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moderate limitation, 2.5 = moderately severe limitation, and 3 = severe limitation.3 An
2
em-dash indicates that the doctor was not asked about that limitation.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
The ability to—
Remember locations and work-like procedures.
Understand and remember very short and simple
instructions.
Understand and remember detailed instructions.
Carry out very short and simple instructions.
Carry out detailed instructions
Maintain attention and concentration for extended
periods.
Perform activities within a schedule, maintain
regular attendance, and be punctual within
customary tolerances.
Sustain an ordinary routine without special
supervision.
Work in coordination with or proximity to others
without being distracted by them.
Make simple work related decisions.
Complete a normal workday and workweek without
interruptions from psychologically based symptoms
and to perform at a consistent pace without an
unreasonable number and length of rest periods.
Interact appropriately with the general public.
Ask simple questions and request assistance.
Dr. Zerrudo
0
1
Dr. Salk
0
0
Dr. Finn
—
1
3
1
3
2
1
0
1
2
2
1
2
2
—
1
1
2
1
—
2
1
—
0
2–3
1
2
—
2
2
1
1
0
1
—
19
20
21
22
23
24
25
26
27
3
Dr. Salk used a different scale than Drs. Zerrudo and Finn. Although asked to
evaluate the same limitations, Dr. Salk had four options for answers: (1) no evidence of
limitation (very good); (2) not significantly limited (good/mild limitations);
(3) moderately limited (fair/limited but not precluded); and (4) markedly limited (poor or
none). Dr. Zerrudo and Dr. Finn had five options: (1) no impairment (none);
(2) suspected impairment of slight importance which slightly affects ability to function
(mild); (3) impairment which affects but does not preclude ability to function (moderate);
(4) impairment which seriously interferes with ability to function (moderately severe);
and (5) extreme impairment of ability to function (severe). The only substantial
difference between these scales is the “moderately severe” option available to Drs.
Zerrudo and Finn. In the 0–3 scale, this option has been assigned a value of 2.5, so that
both scales place the mildest option at 0 and the most severe option at 3.
28
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1
2
3
4
5
6
7
8
9
10
11
The ability to—
Accept instructions and respond appropriately to
criticism from supervisors.
Get along with coworkers or peers without
distracting them or exhibiting behavioral extremes.
Maintain socially appropriate behavior and to
adhere to basic standards of neatness and
cleanliness.
Respond appropriately to changes in the work
setting.
Be aware of normal hazards and take appropriate
precautions.
Travel in unfamiliar places or use public
transportation.
Set realistic goals or make plans independently of
others.
Dr. Zerrudo
3
Dr. Salk
2
Dr. Finn
2
2.5
2
—
0–1
0
—
2–3
1
2
0
0
—
2–3
0
—
2
2
—
12
Displayed in this manner, it becomes clear that Dr. Zerrudo had the most
13
restrictive view of Buskohl’s abilities, Dr. Salk had the least restrictive view, and Dr.
14
Finn — to the extent he was asked — had a slightly more restrictive view than Dr. Salk.
15
The ALJ chose to give the most weight to Dr. Finn’s opinions, meaning that the
16
ALJ chose a non-examining physician over a treating physician, in a situation where the
17
treating physician had been somewhat contradicted (both by Dr. Finn and Dr. Salk). To
18
discount Dr. Zerrudo, the ALJ needed to state “specific and legitimate reasons” supported
19
by substantial evidence in the record. See Lester, 81 F.3d at 831. In this regard, it is
20
worth repeating that Dr. Finn is a non-examining physician. Therefore, his opinion is not
21
itself substantial evidence that justifies rejecting Dr. Zerrudo’s opinions. See Lester, 81
22
F.3d at 831.
23
The ALJ’s most important reasons for discounting Dr. Zerrudo qualify as specific
24
and legitimate : (1) “treatment records indicate that [Buskohl]’s condition has been stable
25
with medication and [her] Global Assessment of Functioning have [sic] been as high as
26
70, which does not support a finding that the claimant has a moderate to severe limitation
27
in any area”; and (2) “while [she] may have some limitation in social functioning,
28
treatment records do not support a finding of moderate to severe limitations in this area.”
- 15
1
The treatment records cited by the ALJ (see Tr. 40 (citing Exs. 6F [Tr. 379–413] & 17F
2
[Tr. 506–607]) can be rationally interpreted as undermining Dr. Zerrudo’s October 2008
3
and April 2009 opinions. Many of these treatment records come from Dr. Zerrudo
4
himself, and show only mild symptoms. They show GAF scores noticeably higher than
5
Buskohl’s scores during the Closed Period. Although Buskohl’s GAF dipped to 50 in
6
April 2009 — a level that indicates “serious impairments in both social and occupational
7
functioning,” according to Dr. Finn (Tr. 65–66) — the overall trend could be interpreted
8
as stability with proper medication, as Dr. Finn interpreted it. Because this is a rational
9
interpretation of the evidence, the Court may not disturb it. Orn, 495 F.3d at 630.
10
Accordingly, the ALJ appropriately gave less weight to the opinions of Buskohl’s
11
treating physician, Dr. Zerrudo.
12
Buskohl argues that Dr. Finn’s opinion is not reliable because Dr. Finn did not
13
have Dr. Zerrudo’s October 2008 or April 2009 opinions. However, Dr. Finn did have
14
Dr. Zerrudo’s and others’ numerous treatment records.
15
records support Dr. Finn’s overall conclusions, as adopted by the ALJ, the ALJ did not
16
err in placing significant weight on Dr. Finn’s opinion. Thus, the ALJ committed no
17
error here.
18
19
3.
Given that those treatment
Residual Functional Capacity & Available Jobs
Residual functional capacity assessments comprise the “exertional and
20
nonexertional capacities of the individual.”
SSR 96-8p, 1996 WL 374184, at *5.
21
Exertional capacity relates to the claimant’s ability to sit, stand, walk, lift, carry, push,
22
and pull. Id. Exertional limitations are not at issue in Buskohl’s case. Nonexertional
23
limitations encompass, among other things, mental limitations, such as “understanding
24
and remembering instructions and responding appropriately to supervision.” Id. at *6.
25
These are the sorts of limitations Buskohl asserts, and about which the various medical
26
experts and the vocational expert were asked.
27
A proper residual function capacity assessment “must first identify the individual’s
28
functional limitations or restrictions and assess his or her work-related abilities on a
- 16
1
function-by-function basis.” Id. at *1. Here, the ALJ adopted Dr. Finn’s description of
2
Buskohl’s nonexertional limitations: mild to moderate restriction in activities of daily
3
living; moderate impairment in social functioning; moderate difficulty maintaining
4
concentration, persistence and pace; moderate impairment getting along with supervisors
5
and accepting criticism; mild impairment in understanding, remembering, and carrying
6
out simple instructions; and “problems with responding favorably on a consistent basis.”
7
(Tr. 33–34.) These nonexertional limitations should have factored into the residual
8
functional capacity assessment, but they go unmentioned in the portion of the ALJ’s
9
opinion that explicitly discusses residual functional capacity.
That portion simply
10
declares that Buskohl can “perform a full range of work at all exertional levels but with
11
the following nonexertional limitations: the claimant is limited to simple unskilled work
12
tasks.” (Tr. 36.)
13
“Simple unskilled work tasks” is not a nonexertional limitation. It describes the
14
work, not the “nonexertional capacities of the individual.” SSR 96-8p, 1996 WL 374184,
15
at *5 (emphasis added). By describing Buskohl’s residual functional capacity as “limited
16
to simple unskilled work tasks,” the ALJ jumped immediately to the conclusion that
17
Buskohl can work. The ALJ short-circuited the question at issue: whether Buskohl can
18
work given her nonexertional limitations.
19
The order of presentation of the evidence appears to have forced the ALJ into this
20
error. The vocational expert is usually the one to opine whether a claimant can work
21
given his or her limitations. As described above, the ALJ first asked the vocational
22
expert, “[C]onsider a hypothetical person the same age, education and work history as
23
Ms. Buskohl. If this person were restricted to simple, unskilled work tasks, is there any
24
work this hypothetical person could perform?” (Tr. 92.) Such a question yields nothing
25
useful about Buskohl’s current state because it does not ask the vocational expert to
26
assume any mental limitations. The vocational expert nonetheless responded that such a
27
person could be a packager, production worker, or inspector.
28
- 17
1
The ALJ and Buskohl’s attorney then posed hypotheticals that included mental
2
limitations derived from Dr. Zerrudo’s and Dr. Salk’s respective opinions.
The
3
vocational expert concluded that persons with such limitations could not work. Finally,
4
at a subsequent hearing, Dr. Finn offered his opinion regarding Buskohl’s mental
5
limitations, but no vocational expert testified at that hearing.
6
In her written opinion, the ALJ discounted Dr. Zerrudo’s and Dr. Salk’s opinions
7
and adopted Dr. Finn’s opinion. However, because the vocational expert had testified
8
before Dr. Finn, there was no evidence in the record that work existed for a person with
9
the limitations Dr. Finn identified.
The ALJ therefore fell back on the only other
10
hypothetical posed to the vocational expert: “If this person were restricted to simple,
11
unskilled work tasks, is there any work this hypothetical person could perform?” This
12
became the residual functional capacity assessment: “a full range of work at all exertional
13
levels but with the following nonexertional limitations: the claimant is limited to simple
14
unskilled work tasks.”
15
This is error in two ways. First, it is error at “step four,” where the ALJ must
16
determine if the claimant can perform her past relevant work. The ALJ never asked the
17
ALJ whether Buskohl can perform her past relevant work. But this is harmless error
18
because it favored Buskohl. The ALJ “agreed” with the vocational expert’s nonexistent
19
testimony that “this claimant, given the above noted limitations, is unable to perform the
20
demands of her past relevant work.” (Tr. 43.) Accordingly, there is no need to reverse
21
for this error.
22
Second, it is error at “step five,” where the ALJ must determine if the claimant can
23
perform any other work considering her residual functional capacity, age, education, and
24
work experience.
25
“limited to simple unskilled work tasks” begs the question — it assumes that the claimant
26
can perform other work.
As discussed above, a residual functional capacity assessment of
27
Nonetheless, this “step five” error is still harmless because the ALJ did not need a
28
vocational expert to establish that someone with the limitations identified by Dr. Finn can
- 18
1
perform “simple unskilled work tasks.” The Social Security regulations define “unskilled
2
work” as “work which needs little or no judgment to do simple duties that can be learned
3
on the job in a short period of time.” 20 C.F.R. § 404.1568(a). The assessment that
4
Buskohl is mentally able to perform the full range of “simple unskilled work tasks” is
5
supported by Dr. Finn’s opinion. Dr. Finn found Buskohl had no more than moderate
6
work-related mental limitations, but no preclusive limitations. And the jobs identified by
7
the vocational expert — packager, production worker, and inspector — accommodate
8
those limitations. The ALJ’s errors therefore do not require reversal.
9
4.
Buskohl’s Relatives’ Statements
10
Buskohl’s father, mother, sister, and aunt all submitted written statements
11
favorable to Buskohl’s disability claim. “In determining whether a claimant is disabled,
12
an ALJ must consider lay witness testimony concerning a claimant’s ability to work.”
13
Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). Such testimony “cannot be
14
disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
15
If an ALJ discredits the testimony of a lay witness, the ALJ must provide reasons “that
16
are germane to each witness.” Id. The ALJ did so here, addressing each relative’s
17
statement and explaining why it did not affect the conclusion.
18
committed no error.
19
20
21
The ALJ therefore
IT IS THEREFORE ORDERED that the Clerk enter judgment affirming the final
decision of the Commissioner of Social Security. The Clerk will terminate this case.
Dated this 28th day of November, 2011.
22
23
24
25
26
27
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