Rose v. Commissioner of Social Security Administration

Filing 21

ORDER that the Commissioner's decision is VACATED and this matter is REMANDED to the Commissioner for further administrative proceedings. The Clerk shall enter judgment. Signed by Magistrate Judge Michelle H Burns on 3/6/17. (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14

)
)
)
Plaintiff,
)
)
vs.
)
Carolyn W. Colvin, Commissioner of the )
)
Social Security Administration,
)
)
Defendant.
)
Nicholas Rose,

CIV 16-0298-PHX-MHB
ORDER

15

Pending before the Court is Plaintiff Nicholas Rose’s appeal from the Social Security

16

Administration’s final decision to deny his claim for disability insurance benefits. After

17

reviewing the administrative record and the arguments of the parties, the Court now issues

18

the following ruling.
I. PROCEDURAL HISTORY

19
20

On November 6, 2013, Plaintiff filed an application for disability insurance benefits

21

alleging disability beginning August 1, 2013. (Transcript of Administrative Record (“Tr.”)

22

at 11, 134-35.) His application was denied initially and on reconsideration. (Tr. at 11, 58-77.)

23

Thereafter, Plaintiff requested a hearing before an administrative law judge. (Tr. at 11, 91-

24

92.) A hearing was held on July 8, 2015, (Tr. at 11, 24-57), and the ALJ issued a decision

25

finding that Plaintiff was not disabled (Tr. at 8-23). The Appeals Council denied Plaintiff’s

26

request for review (Tr. at 1-7), making the ALJ’s decision the final decision of the

27

Commissioner. Plaintiff then sought judicial review of the ALJ’s decision pursuant to 42

28

U.S.C. § 405(g).

1

II. STANDARD OF REVIEW

2

The Court must affirm the ALJ’s findings if the findings are supported by substantial

3

evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720

4

(9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence

5

means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might

6

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

7

(1971); see Reddick, 157 F.3d at 720.

8

In determining whether substantial evidence supports a decision, the Court considers

9

the administrative record as a whole, weighing both the evidence that supports and the

10

evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. “The ALJ

11

is responsible for determining credibility, resolving conflicts in medical testimony, and for

12

resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see

13

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “If the evidence can reasonably

14

support either affirming or reversing the [Commissioner’s] conclusion, the court may not

15

substitute its judgment for that of the [Commissioner].” Reddick, 157 F.3d at 720-21.

16

III. THE ALJ’S FINDINGS

17

In order to be eligible for disability or social security benefits, a claimant must

18

demonstrate an “inability to engage in any substantial gainful activity by reason of any

19

medically determinable physical or mental impairment which can be expected to result in

20

death or which has lasted or can be expected to last for a continuous period of not less than

21

12 months.” 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for

22

benefits by following a five-step sequential evaluation:

23

(1) determine whether the applicant is engaged in “substantial gainful activity”;

24

(2) determine whether the applicant has a medically severe impairment or
combination of impairments;

25
26

(3) determine whether the applicant’s impairment equals one of a number of listed
impairments that the Commissioner acknowledges as so severe as to preclude the
applicant from engaging in substantial gainful activity;

27
28
-2-

1
2

(4) if the applicant’s impairment does not equal one of the listed impairments,
determine whether the applicant is capable of performing his or her past relevant
work;

4

(5) if the applicant is not capable of performing his or her past relevant work,
determine whether the applicant is able to perform other work in the national
economy in view of his age, education, and work experience.

5

See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520,

6

416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the

7

claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956

8

(9th Cir. 1993).

3

9

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

10

activity during the period from his alleged onset date of August 1, 2013, through his date last

11

insured of December 31, 2014. (Tr. at 13.) At step two, she found that Plaintiff had the

12

following severe impairments: history of depression, generalized anxiety disorder, and

13

attention deficit/attention deficit hyperactivity disorder. (Tr. at 13-14.) At step three, the ALJ

14

stated that through the date last insured, Plaintiff did not have an impairment or combination

15

of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404,

16

Subpart P, Appendix 1 of the Commissioner’s regulations. (Tr. at 14-15.) After consideration

17

of the entire record, the ALJ found that, through the date last insured, Plaintiff retained the

18

residual functional capacity “to perform a full range of work at all exertional levels but with

19

the following nonexertional limitations: the claimant could have not public contact and was

20

limited to performing simple, routine and repetitive work tasks involving simple work-related

21

decisions and simple instructions. He could have occasional contact with coworkers and

22

supervisors. The claimant was unable to do fast paced production rate work, but he was able

23

to perform goal oriented work that allows for some variability in work pace.”1 (Tr. at 15-18.)

24

The ALJ found that Plaintiff has no past relevant work, but, considering his age, education,

25

work experience, and residual functional capacity, there are jobs that exist in significant

26
1

27
28

“Residual functional capacity” (or “RFC”) is defined as the most a claimant can do
after considering the effects of physical and/or mental limitations that affect the ability to
perform work-related tasks.
-3-

1

numbers in the national economy that Plaintiff could perform. (Tr. at 18-19.) Thus, the ALJ

2

concluded that Plaintiff “was not under a disability ... from August 1, 2013, the alleged onset

3

date, through December 31, 2014, the date last insured ... .” (Tr. at 19.)

4

IV. DISCUSSION

5

In his brief, Plaintiff contends that the ALJ erred by: (1) failing to properly weigh

6

medical source opinion evidence; (2) failing to provide valid reasons for discounting the

7

opinions from the Department of Veteran Affairs (“VA”); and (3) failing to make a proper

8

finding at step five of the sequential evaluation process.

9

A.

Medical Source Opinion Evidence

10

Plaintiff contends that the ALJ erred by failing to properly weigh medical source

11

opinion evidence. Specifically, Plaintiff argues that the ALJ failed to give appropriate weight

12

to Mary Oakley, Psy.D., and Daniel Schulte, Ph.D.

13

“The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v.

14

Comm’r, Soc. Sec. Admin., 533 F.3d at 1164. Such conflicts may arise between a treating

15

physician’s medical opinion and other evidence in the claimant’s record. In weighing medical

16

source opinions in Social Security cases, the Ninth Circuit distinguishes among three types

17

of physicians: (1) treating physicians, who actually treat the claimant; (2) examining

18

physicians, who examine but do not treat the claimant; and (3) non-examining physicians,

19

who neither treat nor examine the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

20

1995). The Ninth Circuit has held that a treating physician’s opinion is entitled to

21

“substantial weight.” Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)

22

(quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A treating physician’s

23

opinion is given controlling weight when it is “well-supported by medically accepted clinical

24

and laboratory diagnostic techniques and is not inconsistent with the other substantial

25

evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2). On the other hand, if

26

a treating physician’s opinion “is not well-supported” or “is inconsistent with other

27

substantial evidence in the record,” then it should not be given controlling weight. Orn v.

28

Astrue, 495 F.3d 624, 631 (9th Cir. 2007).
-4-

1

If a treating physician’s opinion is not contradicted by the opinion of another

2

physician, then the ALJ may discount the treating physician’s opinion only for “clear and

3

convincing” reasons. See Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830). If

4

a treating physician’s opinion is contradicted by another physician’s opinion, then the ALJ

5

may reject the treating physician’s opinion if there are “specific and legitimate reasons that

6

are supported by substantial evidence in the record.” Id. (quoting Lester, 81 F.3d at 830).

7
8

Since Drs. Oakley and Schulte were contradicted by other objective medical evidence
of record, the specific and legitimate standard applies.

9

Historically, the courts have recognized the following as specific, legitimate reasons

10

for disregarding a treating or examining physician’s opinion: conflicting medical evidence;

11

the absence of regular medical treatment during the alleged period of disability; the lack of

12

medical support for doctors’ reports based substantially on a claimant’s subjective complaints

13

of pain; and medical opinions that are brief, conclusory, and inadequately supported by

14

medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten

15

v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v.

16

Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

17

In her consideration of the objective medical evidence, the ALJ first addressed the

18

opinion of Plaintiff’s treating psychologist, Dr. Oakley. According to the record, Plaintiff

19

presented for evaluation to Dr. Oakley on July 3, 2013. He had a GAF of 55, and he reported

20

anxiety and depression. He was diagnosed with anxiety, rule out ADHD, and borderline

21

personality disorder. (Tr. at 389.) On September 12, 2013, Plaintiff presented for a follow-up

22

to Dr. Oakley. His GAF was 50 or below, and his prognosis was guarded with significant

23

anxiety and struggling with his identity. (Tr. at 385.) On February 11, 2014, Plaintiff’s GAF

24

was 45, and he reported anxiety triggered by “anything and everything.” (Tr. at 384.) Dr.

25

Oakley evaluated Plaintiff again on March 3, 2014. He had a GAF of 45, and did not feel

26

ready to resume classes or employment. (Tr. at 383.) On May 6, 2014 and August 27, 2014,

27

Plaintiff’s GAF was 50. He expressed frustration with the VA and trying to cope with

28

anxiety. (Tr. at 381-82.) On November 13, 2014, Plaintiff reported that he dropped his
-5-

1

courses as it proved to be too much for him. He was frustrated with instructor and felt he did

2

not get the help he needed. His anxiety was very high, but his medication was decreased as

3

he reported medical marijuana helps with his symptoms. (Tr. at 380.)

4

On January 7, 2015, Dr. Oakley authored a letter on Plaintiff’s behalf. The letter

5

discussed the diagnosis of major depression disorder and generalized anxiety disorder with

6

traits of ADHD. Dr. Oakley described Plaintiff’s history of enrolling in classes stating that

7

although he is intelligent enough to do the work, even minor stressors are insurmountable and

8

force him to withdraw. Dr. Oakley stated that Plaintiff’s symptoms began in January 2010,

9

subsequent to his military service, and that one of his major stressors is dealing with the VA

10

and his financial situation. (Tr. at 390.)

11

Dr. Oakley completed a Mental Residual Functional Capacity Statement and reported

12

Plaintiff’s highest GAF in the last year was approximately 50. (Tr. at 392.) In nearly every

13

category of Understanding and Memory, Sustained Concentration, Social Interaction and

14

Adaptation, Dr. Oakley stated that Plaintiff is estimated to have impairment that will preclude

15

performance ten to fifteen percent of an eight hour workday. It is estimated that Plaintiff

16

would be “off task” more than thirty percent of the time, and absenteeism is estimated more

17

than five days per week. (Tr. at 393-94.) Dr. Oakley also completed a therapy session with

18

Plaintiff the same day and the session is consistent with her authored letter. (Tr. at 395.)

19

The ALJ gave partial weight to the medical opinions of Dr. Oakley stating that she has

20

essentially performed the role of treating “counselor” with significant gaps in treatment. The

21

ALJ found that much of Dr. Oakley’s opinions are based on Plaintiff’s subjective reports of

22

symptoms and functional limitations. Moreover, Dr. Oakley opined that the conclusion that

23

Plaintiff cannot sustain any work is inconsistent with other opinion evidence of record. The

24

ALJ found it significant that Plaintiff reported that if the issue of obtaining benefits could be

25

resolved he would be more likely better able to deal with his symptoms and receive relief.

26

The ALJ also noted that Plaintiff had been receiving benefits from the Veteran’s

27

Administration since July 2013, and that he had managed his symptoms without medication

28

for significant time periods. The ALJ concluded, “the undersigned is unable to find the
-6-

1

claimant more limited than found in this decision based on the information provided by Dr.

2

Oakley.”

3

Next, the ALJ evaluated the opinion of Dr. Schulte. On February 13, 2014, Plaintiff

4

was evaluated for a consultative exam by Dr. Schulte. Plaintiff reported his inability to

5

function in a work environment related to his anxiety accompanied by decreased appetite and

6

insomnia, all which significantly reduced his concentration and motivation. He reported acute

7

anxiety episodes at least once daily accompanied by increased heart rate, nausea, and sweaty

8

hands. He also reported occasional suicidal ideation. (Tr. at 359.) He was diagnosed with

9

generalized anxiety disorder and had a GAF of 52. His prognosis for improvement of

10

symptoms was poor. As far as work capability, Dr. Schulte noted that although psychological

11

factors would not prevent Plaintiff from being able to function entirely in a work

12

environment, it would require flexible work requirements and limited social engagement. (Tr.

13

at 363.) On the medical source statement, Dr. Schulte opined that Plaintiff’s understanding

14

and memory would not be impaired although his symptoms would periodically impair his

15

ability to sustain concentration and persistence, limiting his ability to carry out instructions.

16

Dr. Schulte stated that appropriate social interactions in work settings would be significantly

17

impaired as well as limitations in ability to respond to appropriate changes in the work

18

setting, maintaining awareness of normal hazards, and taking appropriate action. (Tr. at 364.)

19

The ALJ gave the opinions Dr. Schulte “some weight.” Specifically, the ALJ stated

20

that Dr. Schulte recognized the symptoms of Plaintiff’s anxiety disorder, which require that

21

Plaintiff has “somewhat flexible work requirements,” including the need for limited social

22

contact in the work place. However, the ALJ found that Dr. Schulte also noted that the

23

claimant “demonstrated no significant impairment in his ability to understand and remember

24

simple instructions, detailed instructions and work like procedure.”

25

Lastly, the ALJ addressed the opinions of the state agency medical consultants. In

26

February 2014, state agency psychologist, Eugene Campbell, Ph.D., reviewed the medical

27

record, including approximately 25 mental health appointments between January 2011 and

28

July 2011, as well as the consultative psychologist’s examination. (Tr. at 63-64.) Dr.
-7-

1

Campbell concluded Plaintiff did not even have a severe mental impairment. (Tr. at 64.) In

2

November 2014, state agency psychologist, Raymond Novak, M.D., reviewed the record and

3

concurred with Dr. Campbell’s opinion. (Tr. at 72-73.) The ALJ stated: “the undersigned

4

assigns partial weight to the medical opinions of the state agency medical consultants’

5

opinions found within exhibits 2A and 3A. The two psychological consultants determined

6

the claimant had an anxiety disorder and believed the claimant’s alleged mental impairments

7

were not severe. The undersigned does not agree that the claimant’s only mental impairment

8

is a non-severe anxiety disorder. The totality of the evidence shows the claimant has multiple

9

mental impairments, which are severe. However, the undersigned agrees with the conclusion

10

of the consultants that the claimant has not met his burden to proof in order to establish

11

disability.”

12

The Court finds that the ALJ properly weighed the medical source opinion evidence

13

related to Plaintiff’s alleged impairments, and gave specific and legitimate reasons, based on

14

substantial evidence in the record to support her findings. The ALJ properly discredited the

15

opinions of Drs. Oakley and Schulte due to inconsistencies with Plaintiff’s medical evidence

16

as a whole. The ALJ also reasoned that said opinions lacked supporting clinical findings, and

17

were primarily based on Plaintiff’s self-reports. See, e.g., Morgan v. Comm’r Soc. Sec.

18

Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair, 885 F.2d at 605) (An ALJ may reject

19

a treating physician’s opinion if it is based “to a large extent” on a claimant’s self-reports that

20

have been properly discounted as incredible.); Tommasetti v. Astrue, 533 F.3d 1035, 1041

21

(9th Cir. 2008) (incongruity between treating doctor’s questionnaire responses and her

22

medical records provided a specific and legitimate reason for rejecting the doctor’s opinion

23

of claimant’s limitations); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (“We hold

24

that the ALJ properly found that [the physician’s] extensive conclusions regarding [the

25

claimant’s] limitations are not supported by his own treatment notes. Nowhere do his notes

26

indicate reasons why [the physician would limit the claimant to a particular level of

27

exertion].”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that the ALJ

28

properly rejected a physician’s testimony because “it was unsupported by rationale or
-8-

1

treatment notes, and offered no objective medical findings to support the existence of [the

2

claimant’s] alleged conditions”); Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th

3

Cir. 2004) (ALJ may discredit treating physicians’ opinions that are conclusory, brief, and

4

unsupported by the record as a whole, or by objective medical findings); Molina v. Astrue,

5

674 F.3d 1104, 1111 (9th Cir. 2012) (“We have held that the ALJ may permissibly reject

6

check-off reports that do not contain any explanation of the bases of their conclusions.”).
Therefore, the Court finds no error.

7
8
9
10

B.

The VA’s Disability Rating
Plaintiff next contends that the ALJ erred by failing to provide valid reasons for

discounting the opinions from the Department of Veteran Affairs.

11

The ALJ “must ordinarily give great weight to a VA determination of disability.”

12

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Less weight may be afforded

13

to such a determination only by providing “persuasive, specific, valid reasons for doing so

14

that are supported by the record.” Id.

15

According to the record, Plaintiff received a 100% disability rating from the VA with

16

“total occupational and social impairment.” The evaluation discusses major depressive

17

disorder and generalized anxiety disorder documenting “feeling sad, isolating, lack for

18

motivation, irritability, guilt, trouble sleeping.” The anxiety is described as “significant

19

worry, variety of triggers, sweaty hands, increased heart rate, mind goes blank.” The VA

20

agrees that “both occupational and social impairment are caused by both anxiety and

21

depression” and establishes that the Global Assessment of Functioning is between 45 to 50.

22

The ALJ’s entire discussion of the VA’s disability rating is as follows:

23

The undersigned gives no weight to the Veterans Administration’s (“VA”)
service-connected disability evaluation letters that were issued in October
2014 and July 2015 (exhibits 2D/ 1-2 and 9D, respectively). The claimant’s
100% disability award documented in these letters is not supported by any
explanation of the evidence relied upon for the award.

24
25
26
27
28

It appears that in October 2014 someone from the VA completed an unsigned
Mental Disorders Disability Benefits Questionnaire in which the claimant was
diagnosed with a major depressive disorder and GAD. The unknown evaluator
(although it may have been Dr. Oakley) indicated that the claimant’s
depression and anxiety interfere with the claimant’s occupational and
-9-

2

educational goals (exhibit 2D/3-6). For reasons previously discussed in this
decision, the undersigned gives little weight to the medical opinions of the
unknown evaluator.

3

The Court finds that the ALJ’s discussion of the VA disability rating was insufficient.

4

The ALJ first gives “no weight” to the VA’s 100% disability rating stating that the disability

5

award documented in these letters is not supported by any explanation of the evidence.

6

However, as Plaintiff states in his brief, the VA cited to a previous mental disorder disability

7

benefits questionnaire and the service treatment record. Further, Plaintiff states that the VA

8

file as a whole is full of mental health treatment for anxiety and depression citing to Tr. 248,

9

259, 260, 262, 275, 277, 284, 290, 293, 309, 313, 315, 317, 322, and 323.

1

10

Then, although the ALJ purported to have read and considered the VA’s disability

11

determination, the ALJ dismisses Plaintiff’s “total occupational and social impairment”

12

caused by anxiety and depression – by simply stating that “depression and anxiety interfere

13

with the claimant’s occupational and educational goals.” Finally, the ALJ states for “reasons

14

previously discussed,” she gives “little weight” to the unknown evaluator. The ALJ

15

completely fails to specify which “reasons previously discussed” apply to the VA’s 100%

16

disability rating.

17

Thus, the ALJ erred by failing to articulate any persuasive, specific, and valid reasons

18

for rejecting the VA’s disability rating. Furthermore, the error was not harmless because the

19

ALJ’s rejection of the VA disability rating was not “inconsequential to the ultimate

20

nondisability determination.” Molina, 674 F.3d at 1121-22.

21

In light of the fact that the Court finds that the ALJ erred by failing to articulate any

22

persuasive, specific, and valid reasons for rejecting the VA’s disability rating, the Court

23

declines to reach Plaintiff’s remaining argument regarding the ALJ’s step five analysis. The

24

Court will order that the decision of the ALJ be vacated and the case be remanded.

25

“[R]emand for further proceedings is appropriate where there are outstanding issues

26

that must be resolved before a determination can be made, and it is not clear from the record

27

that the ALJ would be required to find claimant disabled if all the evidence were properly

28

evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue, 572
- 10 -

1

F.3d 586, 593 (9th Cir. 2009)). “[T]he proper course, except in rare circumstances, is remand

2

to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16

3

(2002) (per curiam). The Ninth Circuit has held that when “additional proceedings can

4

remedy defects in the original administrative proceeding, a social security case should be

5

remanded.” Marcia, 900 F.2d at 176 (remanding “to the Secretary for proper consideration

6

of step three equivalence”). Here, the record contains an unresolved issue regarding the

7

ALJ’s proper determination of the VA’s disability rating that make an award of benefits

8

inappropriate and require further evaluation on remand. While a VA disability rating

9

ordinarily is entitled to great weight, it “does not necessarily compel the SSA to reach an

10

identical result,” and it is not clear that social security disability benefits must be awarded

11

in this case. See Hiler v. Astrue, 687 F.3d 1208, 1211-12 (9th Cir. 2012) (holding that a

12

remand for further administrative proceedings is appropriate where the ALJ deviated from

13

the claimant’s VA disability ratings and gave no reason for dong so). On remand, the ALJ

14

shall develop the record as needed and issue a new decision containing appropriate findings.

15

V. CONCLUSION

16

For the reasons discussed in this Order, the Commissioner’s decision will be vacated

17

and this matter will be remanded for further administrative proceedings consistent with this

18

Order.

19

Accordingly,

20

IT IS ORDERED that the Commissioner’s decision is VACATED and this matter

21

is REMANDED to the Commissioner for further administrative proceedings as set forth in

22

this Order;

23
24
25

IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment
accordingly.
DATED this 6th day of March, 2017.

26
27
28
- 11 -