Ader v. Colvin

Filing 31

ORDER - IT IS THEREFORE ORDERED that Ader's claim for disability is remanded to the Commissioner of the Social Security Administration for an award of benefits. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. (See document for further details). Signed by Magistrate Judge David K Duncan on 12/7/17. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Michelle L. Ader,

No. CV-16-3854-PHX-DKD

Plaintiff,

10
11

v.

12

Commissioner
Administration,

13

ORDER
of

Social

Security

Defendant.

14
15
16

Plaintiff Michelle L. Ader appeals from the denial of her application for benefits

17

from the Social Security Administration. This Court has jurisdiction pursuant to 42

18

U.S.C. § 405(g) and, with the parties’ consent to Magistrate Judge jurisdiction, pursuant

19

to 28 U.S.C. § 636(c). As detailed below, the Court concludes that the ALJ’s decision

20

contained legal errors and so a remand for an award of benefits is appropriate.

21

Time Frame. In this matter, the relevant time period is finite and begins on the

22

alleged onset date of October 1, 2010, and ends when Ader’s Title II disability insurance

23

benefits ended on March 30, 2014.1 (Tr. 39) As a result, Ader’s burden is to show that

24

she was disabled before March 30, 2014. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

25

1998); Lombardo v. Schweiker, 749 F.2d 565, 567 (9th Cir. 1984).

26
1

27
28

On appeal, Ader does not challenge the ALJ’s conclusion that her benefits ended
on March 30, 2014. (Tr. 39) This date—neither the end of the month or a quarter—is
not explained in the record. (Tr. 61) However, because it is not dispositive to this Order,
the Court will not require the Commissioner to supplement the record with an
explanation.

1

Standard of Review

2

This court must affirm the ALJ’s findings if they are supported by substantial

3

evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9th

4

Cir. 1990).

5

preponderance; it is “such relevant evidence as a reasonable mind might accept as

6

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In

7

determining whether substantial evidence supports the ALJ’s decision, the court

8

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

9

detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

Substantial evidence is more than a mere scintilla, but less than a

10

1988).

11

credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v.

12

Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Thus, the Court must affirm the ALJ’s

13

decision where the evidence considered in its entirety substantially supports it and the

14

decision is free from reversible error. 42 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d

15

498, 501 (9th Cir. 1989).

The ALJ is responsible for resolving conflicts, ambiguity, and determining

16
17
18

Analysis
Ader, proceeding pro per, raises several related challenges to the ALJ’s decision.
(Docs. 25, 30)

19

Psychological Consultative Evaluation. Ader was evaluated at the request of the

20

State agency by Renee Behinfar, Psy.D. (Tr. 575-80) In her subsequent written report,

21

Dr. Behinfar concluded that Ader had unspecified bipolar disorder and unspecified

22

anxiety disorder. (Tr. 577) This conclusion is uncontroverted. (Tr. 37-47) In her

23

opinion, the ALJ gave Dr. Behinfar’s opinion “little weight.” The relevant paragraph of

24

ALJ decision states as follows:

25
26
27
28

Little weight is afforded to the opinion of the Consultative Examiner Renee
Behinfar, Psy.D. who concluded the claimant would have cognitive
limitations from her mental impairments. (8F) Specifically, the examiner
concluded the claimant could understand simple instructions and would
require greater than average time to adapt. (8F) The undersigned finds the
opinion is inconsistent with and unsupported by the evidence. The claimant
got married and had two children during the alleged disability period. She
raises the two minor children in her household, drives independently, can
-2-

1
2
3
4

attend to personal care limited only by physical impairments, shops for
groceries, can watch television without reported difficulty in understanding
and following story/plot-lines, was cooperative during her examinations
with consultative examiners and is not in any formal mental health
treatment (See Exhibits 5E, 8F, 9F, 10F). Further, the claimant has never
been hospitalized due to severe decline in mental health. The foregoing
suggests a level of cognitive ability inconsistent with the opinion of Dr.
Behinfar, accordingly, the opinion is afforded little weight.

5
6

(Tr. 41)

7

To assign little weight to Dr. Behinfar’s uncontroverted opinion, the ALJ needed

8

to provide “‘clear and convincing’ reasons for doing so.” Morgan v. Commissioner of

9

Social Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (citations omitted). The Court has

10

reviewed the relevant portions of the record and concludes that the ALJ has not provided

11

clear and convincing reasons for rejecting Dr. Behinfar’s opinion.

12

The ALJ’s first series of justifications—Ader’s marital status and her ability to

13

drive, shop, watch television, and cooperate with examiners—do not show that Ader can

14

work and instead fall squarely into the category of daily activities that do “not in any way

15

detract from her credibility as to her overall disability. One does not need to be ‘utterly

16

incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.

17

2001). Accordingly, these explanations are not clear and convincing reasons to afford

18

little weight to Dr. Behinfar’s opinion.

19

The ALJ also mentioned Ader’s ability to raise her two minor children as evidence

20

that undermined Dr. Behinfar’s opinion. (Tr. 41) This is not a valid reason because it

21

misstates the record: Ader’s uncontradicted testimony at the hearing was that her mother

22

had moved into her house during the relevant time period to help Ader with her young

23

children. (Tr. 66-67) Next, the ALJ mentioned that Ader was “not in any formal mental

24

health treatment.” (Tr. 41) This is also incorrect: Ader established care with Southwest

25

Behavioral Health in May 2012 at the request of her primary care physician who had

26

been managing her medications for depression and anxiety and was concerned because

27

she had been “experiencing severe symptoms of depression.” (Tr. 524) Ader continued

28

to receive care from Southwest Behavioral Health until January 2014 when she changed

-3-

1

providers for insurance reasons. (Tr. 636) In other words, she spent the entire relevant

2

time period on psychiatric medication and at least half of the relevant time period

3

receiving formal mental health treatment. (Tr. 511-574; 625-636) Finally, the ALJ noted

4

that Ader had “never been hospitalized due to severe decline in mental health.” (Tr. 41)

5

This was an accurate statement for the relevant time period but the Court notes that Ader

6

was hospitalized for depression as a teenager.2 (Tr. 517)

7

In conclusion, the Court finds that the ALJ provided no legally sound reasons for

8

providing little weight to Dr. Behinfar’s uncontroverted opinion that Ader had

9

unspecified bipolar disorder and unspecified anxiety disorder.

10

Treating Physician. From February 2012 to December 2013, Ader was a patient at

11

Integrated Medical Services Pain Management where she received regular treatment for

12

neck pain and global pain. (Tr. 391-433) These records document an increase in Ader’s

13

pain, her difficulty walking and balancing, and contain a diagnosis of fibromyalgia. (Tr.

14

391, 423) In other words, these records address the same issues presented by Ader’s

15

application for benefits.

16

Ader notes that the ALJ did not address these medical records in the decision but

17

should have. (Doc. 25 at 28) The Court agrees. “In making any determination with

18

respect to whether an individual is under a disability or continues to be under a disability,

19

the Commissioner of Social Security shall consider all evidence available in such

20

individual’s case record.” 42 U.S.C. § 423(d)(5)(B). The ALJ should have considered

21

these records and the failure to do so constitutes legal error. Dodrill v. Shalala, 12 F.3d

22

915, 919 (9th Cir. 1993) (citing 20 C.F.R. § 404.1513(e)(2)).

23

...

24

...

25

...

26
2

27
28

In response, the Commissioner also notes that Ader had enrolled in community
college classes during the relevant time period and argues that this supports the ALJ’s
decision. However, this evidence was not used by the ALJ to support the weight
assigned to Dr. Behinfar’s opinion and, therefore, cannot be used to back-fill the ALJ’s
conclusion.
-4-

1

Remand

2

The decision to remand a case for additional evidence or for an award of benefits

3

is within the discretion of this court. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.

4

1989). The court can remand a case with instructions to award benefits when

5
6
7
8

(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.

9

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Here, all three parts of this test

10

have been met. First, the record was fully developed for the fixed time period at issue

11

and further administrative proceedings would impermissibly allow the “ALJ to have a

12

mulligan.” Id. at 1021. Second, as described above, the ALJ did not provide a sufficient

13

explanation for rejecting the opinion of the consultative examiner or for failing to address

14

the evidence in the record from her treating physician. Finally, if the ALJ had provided

15

great weight to Dr. Behinfar’s opinion and had incorporated the information contained in

16

the records from Integrated Medical Services Pain Management, the ALJ would have

17

found that Ader was disabled.

18
19
20
21
22

IT IS THEREFORE ORDERED that Ader’s claim for disability is remanded to
the Commissioner of the Social Security Administration for an award of benefits.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly. The judgment will serve as the mandate of this Court.
Dated this 7th day of December, 2017.

23
24
25
26
27
28

-5-