Roberts v. Commissioner of Social Security Administration

Filing 22

ORDER - IT IS ORDERED reversing the decision of the Commissioner of Social Security and remanding this case to the Commissioner for an immediate award of benefits effective October 14, 2014. IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly. (See document for further details). Signed by Magistrate Judge Eileen S Willett on 12/29/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Diane Carol Roberts,
Plaintiff,

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No. CV-17-00195-PHX-GMS
ORDER

v.
Acting Commissioner of the Social Security
Administration,
Defendant.

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Pending before the Court is Diane Carol Roberts’ (“Plaintiff”) appeal of the Social

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Security Administration’s (“Social Security”) denial of her application for supplemental

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security income. The Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42

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U.S.C. §§ 405(g), 1383(c). Under 42 U.S.C. § 405(g), the Court has the power to enter,

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based upon the pleadings and transcript of the record, a judgment affirming, modifying,

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or reversing the decision of the Commissioner of Social Security, with or without

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remanding the case for a rehearing. Both parties have consented to the exercise of U.S.

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Magistrate Judge jurisdiction. (Doc. 11).

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After reviewing the Administrative Record (“A.R.”) and the parties’ briefing

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(Docs. 18, 19, 21), the Court finds that the Administrative Law Judge’s (“ALJ”) decision

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contains harmful legal error. For the reasons explained in Section II, the decision is

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reversed and the case is remanded to the Commissioner of Social Security for an
immediate award of benefits.

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I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act (the “Act”) provides for Supplemental Security Income to
certain individuals who are aged 65 or older, blind, or disabled and have limited income.
42 U.S.C. § 1382.

To be eligible for benefits based on an alleged disability, the

claimant must show that he or she suffers from a medically determinable physical or
mental impairment that prohibits him or her from engaging in any substantial gainful
activity. 42 U.S.C. § 1382c(A)(3)(A). The claimant must also show that the impairment
is expected to cause death or last for a continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an
analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.
§ 416.920(a). The claimant has the burden of proof regarding the first four steps: 1
Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to step two.
Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. § 416.920(c). If the claimant does not have a severe
impairment or combination of impairments, disability benefits
are denied at this step. Otherwise, the ALJ proceeds to step
three.

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Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity? 20
C.F.R. § 416.920(d). If the impairment meets or equals one

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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
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of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is
presumed to be disabling, the ALJ proceeds to the fourth step
of the analysis.

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Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §
416.920(f). Otherwise, the ALJ proceeds to the last step.

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If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 2
Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. § 416.920(g). Social Security is responsible for
providing evidence that demonstrates that other work exists in
significant numbers in the national economy that the claimant
can do, given the claimant’s residual functional capacity, age,
education, and work experience. Id.

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B. Standard of Review Applicable to ALJ’s Determination

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The Court must affirm an ALJ’s decision if it is supported by substantial evidence

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and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

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2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “Substantial evidence” is

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less than a preponderance, but more than a “mere scintilla.” Richardson v. Perales, 402

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U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)).

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It is “such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Id.

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

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

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

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Parra, 481 F.3d at 746.
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1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it
is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). The ALJ, not the Court, is responsible for resolving conflicts and
ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750;
see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Finally, the Court considers the harmless error doctrine when reviewing an ALJ’s
decision. An ALJ’s decision need not be remanded or reversed if it is clear from the
record that the error is “inconsequential to the ultimate nondisability determination.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina,
674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence
supporting the ALJ’s decision and the error “does not negate the validity of the ALJ’s
ultimate conclusion”) (citations omitted).

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II. PLAINTIFF’S APPEAL
A. Procedural Background
Plaintiff, who was born in 1962, has no past relevant work. (A.R. 35, 84). In
October 2014, Plaintiff filed an application for supplemental security income. (A.R. 18895). Plaintiff’s application alleged that on March 31, 2001, she became unable to work
due to major depression and anxiety disorder. (A.R. 84). Plaintiff subsequently amended
the alleged disability onset date to October 14, 2014. (A.R. 49). Social Security denied
the application on March 12, 2015. (A.R. 117-20). In September 2015, upon Plaintiff’s
request for reconsideration, Social Security affirmed the denial of benefits. (A.R. 12531). Plaintiff sought further review by an ALJ, who conducted a hearing in July 2016.
(A.R. 45-83, 133-35).
In a September 19, 2016 decision, the ALJ found that Plaintiff is not disabled
within the meaning of the Social Security Act. (A.R. 24-37). The Appeals Council
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denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Social Security Commissioner. (A.R. 1-6, 14-20). On January 20, 2017, Plaintiff filed a
Complaint (Doc. 1) requesting judicial review and reversal of the ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since October 14, 2014, the alleged disability onset date. (A.R. 26). Neither party
disputes this determination.

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2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments

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The ALJ found that Plaintiff has the following severe impairments: (i)

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osteoarthritis; (ii) anxiety disorder; (iii) “affective disorder (a.k.a depression)”;

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and (iv) personality disorder. (A.R. 26). This determination is undisputed.

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3. Step Three: Presence of Listed Impairment(s)

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The ALJ determined that Plaintiff does not have an impairment or combination of

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impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404,

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Subpart P, Appendix 1 of the Social Security regulations. (A.R. 27-29). Neither party

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challenges the ALJ’s determination at this step.

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4. Steps Four and Five: Capacity to Perform Work
The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 416.967(b), except that
there are no limits on amount of time sitting and the claimant
could stand for 6 hours, alternating to sitting for 10 minutes
after every 1 hour of standing. Claimant could walk for 6
hours, alternating to sitting for 10 minutes after every 1 hour
of walking. Claimant could frequently reach overhead,
bilaterally and could frequently handle, bilaterally. Claimant
could frequently climb ramps and stairs but could
occasionally climb ladders, ropes or scaffolds. Claimant
should never be at unprotected heights. Claimant could
maintain attention, pace, and persistence to carry out at least
simple instructions. Claimant could have occasional contact

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with coworkers and the public. Claimant could make simple
work-related decisions.
(A.R. 29). As Plaintiff has no past relevant work, the ALJ proceeded to Step Five and
determined whether Plaintiff could perform any work existing in significant numbers in
the national economy. (A.R. 35).
Based on the assessed RFC and the testimony of the Vocational Expert (“VE”),
the ALJ concluded that Plaintiff is capable of performing the requirements of
representative occupations such as cashier, document preparer, and addressing clerk.
(A.R. 36). Plaintiff disputes this determination.

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C. The ALJ Failed to Provide Valid Reasons for Discounting the Opinions of
Treating Psychiatrist Diane Papke, M.D.

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In weighing medical source opinions in Social Security cases, there are three

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categories of physicians: (i) treating physicians, who actually treat the claimant; (2)

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

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physicians, who neither treat nor examine the claimant. Lester, 81 F.3d at 830. An ALJ

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must provide clear and convincing reasons that are supported by substantial evidence for

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rejecting the uncontradicted opinion of a treating or examining doctor. Id. at 830-31;

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Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ cannot reject a

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treating or examining physician’s opinion in favor of another physician’s opinion without

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first providing specific and legitimate reasons that are supported by substantial evidence.

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Bayliss, 427 F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an

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opinion is consistent with the record as a whole); see also Batson, 359 F.3d at 1195;

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Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti, 533 F.3d at 1041

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(finding it not improper for an ALJ to reject a treating physician’s opinion that is

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inconsistent with the record).

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On April 20, 2015, Plaintiff’s treating psychiatrist, Diane Papke, M.D., completed

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a “Medical Assessment of Claimant’s Ability to Perform Work Related Activities

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(Mental)” (the “Medical Assessment”). (A.R. 526-27). Dr. Papke opined that Plaintiff

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has “moderately severe” 3 limitations with respect to Plaintiff’s ability to relate to other
people, complete daily activities, and understand, carry out, and remember instructions.
(Bates No. 526). Dr. Papke also opined that Plaintiff has (i) “severe” deterioration in
personal habits and constriction of interests; (ii) “moderate” limitations in responding
appropriately to supervision and co-workers and in performing simple tasks; (iii)
“severe” limitations in responding to customary work pressures; and (iv) “moderately
severe” limitations resulting from the side effects of Plaintiff’s medications. (A.R. 52627). In addition, Dr. Papke stated that Plaintiff’s psychiatric symptoms would severely
affect the sustainability of work pace. (A.R. 527). Dr. Papke’s opinions may not be
discounted without specific and legitimate reasons supported by substantial evidence in
the record. 4
The ALJ gave Dr. Papke’s Medical Assessment “partial weight.” (A.R. 32). The

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ALJ first explained that Dr. Papke’s opinion
is internally inconsistent, in that her treating notes do not
indicate the level of severity she opined. For example, Dr.
Papke identified side effects to medication that included
sedation, hypertension, sweating and dry mouth. However,
Dr. Papke’s medical records do not support his assertion.
Specifically, there is little to no evidence of any side effects.
(4F; 10F; 14F).

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(Id.). Although Dr. Papke’s treatment notes indicate that Dr. Papke explained the side

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effects of Plaintiff’s medications, Dr. Papke’s notes expressly state that Plaintiff did not

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report any side effects. (See, e.g., A.R. 377-78, 519-20, 522-23, 560-61). The Court

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finds that substantial evidence supports the ALJ’s rejection of Dr. Papke’s opinion that

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Plaintiff’s medications cause side effects that impose “moderately severe” limitations.

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The form Dr. Papke completed defined “moderately severe” as “[o]ff task 11-15”
of an 8-hour work day” and “severe” as “[o]ff task greater than 21% of an 8-hour work
day.” (A.R. 527)
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The specific and legitimate standard, not the clear and convincing standard,
applies because Dr. Papke’s opinions are contradicted by other acceptable medical
sources (A.R. 91-93, 111-12, 720-26).
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However, as explained below, the Court finds that the ALJ did not provide valid reasons
for discounting Dr. Papke’s remaining opinions.
After discussing Dr. Papke’s opinion regarding medication side effects, the ALJ
stated the following: “Additionally, in April 2015, claimant reported that she was feeling
a lot better with her medication increase, and did not feel her medication needed to be
changed. She stated she was sleeping better, her mood was ‘pretty good’, and her anxiety
was not too bad.” (A.R. 32). The Court finds that these statements mischaracterize the
record. The April 2015 treatment note reflects that Dr. Papke conducted a mental status
examination and found that Plaintiff’s “[m]ood is depressed, dysphoric, dysthmic[.]”
(A.R. 548). Dr. Papke stated that Plaintiff was “displaying low energy” and although
Plaintiff’s affect was “brighter,” it was “blunted.” (Id.). In addition, Dr. Papke noted
improvement in Plaintiff’s thought content, but found that it was “still problematic.”
(Id.). The Court does not find that the April 2015 treatment note contradicts the opinions
expressed in Dr. Papke’s Medical Assessment. Moreover, when “a person who suffers
from severe panic attacks, anxiety, and depression” improves, that “does not mean that
the person’s impairments no longer seriously affect her ability to function in a
workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); see also Lester
v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods—and
even—the sporadic ability to work—are not inconsistent with disability.”). “Cycles of
improvement and debilitating symptoms are a common occurrence [in mental illness],
and it is error for an ALJ to pick out a few isolated instances of improvement over a
period of months or years and to treat them as a basis for concluding a claimant is
capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014); see also
Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (ALJ may not focus on isolated
periods of improvement without examining broader context of claimant’s condition).
Next, the ALJ stated that “[i]t appears Dr. Papke based her opinion on claimant’s
subjective complaints rather than the objective clinical findings, thus, is a sympathetic
opinion.” (A.R. 32). The Court does not find that this is a specific and legitimate reason
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supported by substantial evidence for discounting Dr. Papke’s opinions.

Papke’s treatment records do not indicate that Dr. Papke was acting as Plaintiff’s agent
or was so sympathetic to Plaintiff as to impair her professional judgment. See Haulot v.
Astrue, 290 F. App’x 53, 54 (9th Cir. 2008) (holding that an ALJ’s statement that
treating doctor was “sympathetic” to a claimant did not constitute substantial evidence
for rejecting the doctor’s diagnosis where the ALJ did not point to evidence that the
doctor “was so sympathetic to [the claimant] as to impair his sound professional opinion,
or was acting as [the claimant’s] agent to aid him in collecting disability benefits”);
Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (“The purpose for which medical
reports are obtained does not provide a legitimate basis for rejecting them.

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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.”); Ratto v.
Secretary, 839 F.Supp. 1415, 1426 (D. Or. 1993) (“The Secretary may not assume that
doctors routinely lie in order to help their patients collect disability benefits.”).

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First, Dr.

Second, Dr. Papke’s treatment notes indicate that she conducted mental status
examinations at each appointment. (See, e.g., A.R. 377, 519, 522, 560). Dr. Papke
indicated on the Medical Assessment that her opinions regarding Plaintiff’s limitations
result from documented objective, clinical, or diagnostic findings. (A.R. 527). There is
no

evidence

in

the

record

suggesting

that

Dr.

Papke

relied

on

Plaintiff’s subjective complaints, rather than on Dr. Papke’s own mental status
examinations, in completing the Medical Assessment.

See Ryan v. Commissioner

of Social Security, 528 F.3d 1194, 1199-1200 (9th Cir. 2008) (reversing an
ALJ’s decision and ordering payment of benefits where the ALJ improperly rejected the
opinion of the examining psychiatrist whose opinions were based on the psychiatrist’s
mental status examination).

In addition, the ALJ did not rely “explicitly upon

substantial objective evidence of [Plaintiff’s] lack of credibility” when explaining why
Dr. Papke’s opinions were discounted. Calkins v. Astrue, 384 F. App’x 613, 615 (9th
Cir. 2010) (concluding that “an ALJ must be permitted to discount an opinion based
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principally upon a claimant’s self-reporting if the record contains objective evidence that
the self-reporting is not credible”). 5
Finally, the ALJ stated: “Additionally, Dr. Papke opined on a matter left to the
Commissioner of Social Security when she opined that claimant was unable to complete
a normal 8 hour workday.” (A.R. 32). The ultimate disability determination is an issue
reserved to the Commissioner. 20 C.F.R. § 404.1527(d). Dr. Papke, however, did not
opine as to whether Plaintiff met the statutory definition of disability.

Dr. Papke

expressed medical opinions in the Medical Assessment as to the severity of Plaintiff’s
limitations. See Boardman v. Astrue, 286 F. App’x 397, 399 (9th Cir. 2008) (concluding
that an ALJ erroneously found that a physician opined on the ultimate disability
determination, explaining that the physician “clearly expressed a medical opinion” when
he described the claimant’s “symptoms, including ‘moderate to severe’ chronic back
pain”); 20 C.F.R. § 404.1527(a)(1) (a medical opinion “‘reflect[s] judgments about the
nature and severity of [a claimant’s] impairment(s), including [a claimant’s] symptoms,
diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a
claimant’s] physical or mental restrictions”). The Court does not find that the ALJ’s final
reason for discounting Dr. Papke’s opinion is supported by substantial evidence.
Based on the foregoing, the Court finds that the ALJ properly discounted Dr.
Papke’s opinion regarding medication side effects, but improperly discounted Dr.
Papke’s remaining opinions. This error is harmful and alone requires remand. The Court
therefore does not address Plaintiff’s arguments regarding the other alleged errors in the
ALJ’s decision.

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5

Defendant cites Calkins to support Defendant’s argument that the ALJ properly
discounted Dr. Papke’s opinions on the basis that they were based on Plaintiff’s
subjective complaints. (Doc. 19 at 9). Because Calkins is an unpublished decision, it is
only persuasive authority, not binding precedent. Ninth Cir. Rule 36-3. Further, the
Ninth Circuit panel in Calkins noted that the case was distinguishable from Ryan. Unlike
the ALJ’s decision in Ryan, the ALJ’s decision in Calkins “relied explicitly upon
substantial objective evidence of Calkin’s lack of credibility as a basis for rejecting” a
treating physician’s opinions. Calkins, 384 F. App’x at 615. The panel explained that
“Ryan did not address the extent to which an ALJ may consider such evidence when
determining what weight to accord a medical opinion.” Id.
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D. The Case Will Be Remanded for an Award of Benefits
Ninth Circuit jurisprudence “requires remand for further proceedings in all but the
rarest cases.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir.
2014). The Ninth Circuit, however, has adopted a test to determine when a case should
be remanded for payment of benefits in cases where an ALJ has improperly rejected
claimant testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at
1020. This test is commonly referred to as the “credit-as-true” rule, which consists of the
following three factors:
1. Has the ALJ failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion? Treichler, 775 F.3d at 1100-01.

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2. Has the record been fully developed, are there outstanding
issues that must be resolved before a disability
determination can be made, or would further administrative
proceedings be useful? Id. at 1101. To clarify this factor,
the Ninth Circuit has stated that “[w]here there is
conflicting evidence, and not all essential factual issues
have been resolved, a remand for an award of benefits is
inappropriate.” Id.
3. If the improperly discredited evidence were credited as true,
would the ALJ be required to find the claimant disabled on
remand? Id.; Garrison, 759 F.3d at 1020.

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Where a court has found that a claimant has failed to satisfy one of the factors of

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the credit-as-true rule, the court does not need to address the remaining factors.

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Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining

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that the claimant has failed to satisfy the second step). Moreover, even if all three factors

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are met, a court retains the discretion to remand a case for additional evidence or to

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award benefits. Id. at 1101-02. A court may remand for further proceedings “when the

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record as a whole creates serious doubt as to whether the claimant is, in fact, disabled

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within the meaning of the Social Security Act.”

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Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the

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Garrison, 759 F.3d at 1021.

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record is uncertain and ambiguous, the proper approach is to remand the case to the
agency.” 775 F.3d at 1105.
After examining the record, the Court finds no outstanding issues of fact to be
resolved through further proceedings. Dr. Papke opined that Plaintiff would be off task
greater than 21% of an 8-hour work day. (A.R. 527). At the administrative hearing, the
VE testified that Plaintiff could be off task “[o]nly about 10 percent” of a workday in
order to maintain employment. (A.R. 80). The Court finds that if Dr. Papke’s opinions
were credited-as-true, the ALJ would be required to find that Plaintiff is disabled. The
Court does not find any material evidence in the record that creates serious doubt that
Plaintiff is in fact disabled.

inappropriate to remand the case for further proceedings. See Benecke v. Barnhart, 379
F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again
would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits
adjudication.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The
Commissioner, having lost this appeal, should not have another opportunity to show that
Moisa is not credible any more than Moisa, had he lost, should have an opportunity for
remand and further proceedings to establish his credibility.”) (citation omitted). The
Court will remand the case for an immediate award of benefits effective October 14,
2014 (the disability onset date).

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Therefore, based on the record, the Court finds it

III. CONCLUSION
Based on the foregoing,
IT IS ORDERED reversing the decision of the Commissioner of Social Security
and remanding this case to the Commissioner for an immediate award of benefits
effective October 14, 2014.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly.
Dated this 29th day of December, 2017.

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