Petty v. Astrue

Filing 23

ORDER: IT IS ORDERED that the final decision of the Commissioner is reversed. The case is remanded for payment of benefits. The Commissioner may adopt Petty's amended onset date, April 17, 2009. (Tr. 67) The Clerk of the Court is directed to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 6/20/2013. (See attached PDF for complete information)(ALS)

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10
11
12
13
14
15

)
)
)
Plaintiff,
)
)
vs.
)
Carolyn W. Colvin, Commissioner of )
)
Social Security,
)
)
Defendant.
)
)
Renee Denean Petty,

No. CIV 12-217-TUC-LAB
ORDER

16
17

The plaintiff filed this action for review of the final decision of the Commissioner for

18

Social Security pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). The Magistrate

19

Judge presides over this case pursuant to 28 U.S.C. § 636(c) having received the written consent

20

of both parties. See FED.R.CIV.P. 73; (Docs. 11, 14).

21

The final decision of the Commissioner is not “supported by substantial evidence and

22

free from legal error.” Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Specifically, the ALJ

23

improperly discounted the treating physician’s opinion of disability. The case will be remanded

24

for payment of benefits.

25
26

PROCEDURAL HISTORY

27

On May 2, 2009, Petty constructively filed an application for disability insurance benefits

28

and supplemental security income. (Tr. 25, 106)

She alleged disability beginning on

1

November 17, 20081, due to “Depression, Migraines, Fibromyalgia, Neuropathy, Anxiety,

2

Arnold[-]Chairi Malformation2 Type 1, Osteoarthritis, Carpal Tunnel Syndrome, Sinus Issues,

3

[and] Low Vitamin D.” (Tr. 25, 119) Her claim was denied initially (Tr. 82-85) and upon

4

reconsideration (Tr. 87-90). Petty requested review and appeared with counsel at a hearing

5

before Administrative Law Judge (ALJ) Norman R. Buls on December 15, 2010. (Tr. 91, 25)

6

In his decision, dated January 18, 2011, the ALJ found Petty was not disabled. (Tr. 25-36).

7

Petty appealed and submitted additional exhibits, but the Appeals Council denied review

8

making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-6); Bass v.

9

Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989). Petty subsequently filed this action

10

appealing the Commissioner’s final decision. (Doc. 1); see 20 C.F.R. § 422.210(a). She filed

11

her opening brief on September 4, 2012. (Doc. 17) She argues the Commissioner erred when

12

he failed to properly credit her subjective testimony of disability, failed to properly credit the

13

opinions of two treating sources, and failed to include in the record documents she submitted

14

for the first time to the Appeals Council. Id.

15
16

The Commissioner filed a responsive brief on October 4, 2012. (Doc. 18) Petty filed
a reply on November 13, 2012. (Doc. 21)

17
18

Claimant’s Work History and Medical History

19

In the fifteen years prior to her alleged disability onset, Petty worked as a laptop

20

assembler, cashier, fabrication associate, manufacturing specialist, travel counselor, retail

21

stocker, and manufacturing probe specialist. (Tr. 120) She was laid off from her job with Texas

22

Instruments at the end of 2008. (Tr. 67, 77, 120); (Doc. 17, p. 3) Nevertheless, she believes she

23
24
25
1

26

Petty’s alleged onset date was later amended to April 17, 2009. (Tr. 67)

2

27
28

“The Arnold-Chiari malformation is an abnormality in the formation of the brain
stem.” The Merck Manual of Diagnosis and Therapy 2224 (Mark H. Beers, et al. eds., 17th ed.
1999).
-2-

1

would have had to quit her job within four or five months anyway due to constant pain from her

2

fibromyalgia and migraines. (Tr. 67, 77, 120); (Doc. 17, p. 3)

3
4

Physical Impairments

5

In January of 2001, Petty underwent a suboccipital craniotomy to treat a Chiari I

6

malformation. (Tr. 443) In May of 2001, she was still experiencing some numbness in the arms

7

and legs, neck pain, and headaches on the left side. (Tr. 438)

8

In July of 2008, Petty sought treatment for left-hand pain she had been having since

9

October of 2007. (Tr. 225) David Siegle, M.D., diagnosed left medial epicondylitis, left index

10

trigger finger, and left carpal tunnel syndrome. (Tr. 225) Petty subsequently underwent a left

11

carpal tunnel release and left index trigger finger release. (Tr. 212) In September of 2008,

12

Siegel wrote that Petty’s “left hand has improved substantially, and her elbow pain has basically

13

resolved with conservative management.” (Tr. 222) In October of 2008, Petty underwent a

14

right carpal tunnel release. (Tr. 210)

15

The medical record contains treatment notes from University Orthopedic Specialists.

16

(Tr. 285-89, 356-57) In May of 2009, Michael Miller, M.D., assessed Petty as follows:

17

“Bilateral knee degenerative changes. History of multiple knee surgeries including proximal

18

and distal patellar realignment and numerous arthroscopic surger[ies].” (Tr. 285) In August

19

of 2009, Miller wrote: “She is at a young age to consider knee replacement however this is a

20

distinct possibility in the near future.” (Tr. 357)

21

The medical record contains treatment notes from United Community Health Center

22

from August of 2008 to May of 2009. (Tr. 268-273) In April of 2009, Marie Benitez, M.D.,

23

summarized Petty’s condition as (1) fibromyalgia syndrome, sleep disorder, (2) lumbar strain,

24

(3) low vitamin D, (4) migraines. (Tr. 270) In December of 2010, Benitez completed a

25

Medical Work Tolerance Recommendations form. (Tr. 603-04) Benitez opined Petty could

26

work only seven hours per day for 3-4 days per week due to her frequent migraines. Id. Each

27

work day, she could stand for one hour total. Id. She could sit for six hours total but for only

28

30 minutes at a stretch. Id. She could sit in a clerical position and occasionally reach above
-3-

1

shoulder level, but she should avoid other postures such as bending, crouching, kneeling, and

2

squatting. Id. She should avoid fine movements such as typing and small assembly. Id.

3

In July of 2009, Petty was examined by Enrique Suarez, M.D., for the state disability

4

determination service. (Tr. 298) His impression was as follows: “1. History of depression.

5

She seems to be improving somewhat with Effexor. 2. Migraines, probably tension. 3.

6

Fibromyalgia is related to the depression and poor sleeping. 4. History of Arnold[-]Chiari

7

Malformation type I after the surgery in June 2006. She appeared to have responded. 5.

8

Minimal degenerative joint disease of the knees. 6. Status post osteotomies. 7. Bilateral carpal

9

tunnel syndrome, status post surgery with good results. 8. Some degree of sinusitis, status post

10

surgery. 9. Low Vitamin D, she is on vitamins.” (Tr. 300) Suarez concluded “she may have

11

some limitation with lifting over 50 pounds occasionally and 25 pounds frequently . . . .”

12

In July of 2009, John Fahlberg, M.D., reviewed the record and completed a Physical

13

Residual Functional Capacity Assessment for the state disability determination service. (Tr.

14

312) He concluded Petty could lift and/or carry 10 pounds frequently and 20 pounds

15

occasionally. (Tr. 313) She could sit with normal breaks for 6 hours in an 8-hour day. Id. She

16

should only occasionally climb, kneel, crouch, or crawl. (Tr. 314)

17

concentrated exposure to extreme cold, vibration, and hazards such a machinery and heights.

18

(Tr. 316) He found Petty’s symptoms suffered from “obvious exaggeration.” (Tr. 317) He

19

further found the consultative examiner’s opinion to be “a bit excessive” considering her “knee

20

[osteoarthritis] if nothing else.” (Tr. 318)

21
22

She should avoid

In November of 2009, Martha A. Goodrich, M.D., reviewed Fahlberg’s report for the
state disability determination service and affirmed his opinions. (Tr. 431)

23
24

Mental Impairments

25

The record contains treatment notes from La Frontera Center, Inc., from August of 2003

26

to May of 2009. (Tr. 362-404) In August of 2003, Bruce Roberts, M.D., offered an assessment:

27

“This is a 30-year-old woman who has suffered from recurrent episodes of major depression

28

over the past 8 years. Her depression has been worse recently due to recent losses and acute
-4-

1

stressors. [S]he reports that she has been more irritable and losing her temper easily and yelling

2

at the kids. She also has daily migraine headaches.” (Tr. 404) His diagnosis reads as follows:

3

“Axis I Major Depressive Disorder, recurrent, moderate; Bipolar Affective Disorder II,

4

provisional. Axis II No diagnosis. Axis III Migraine headaches. Axis IV Moderate. Axis

5

V Current GAF of 45.” In May of 2009, Elizabeth Siwarski, APRN/BC, offered the following

6

clinical impression: “[History] of chronic treatment resistant depression w/ persistent insomnia

7

. . . . Client ha[s] failed trials [with] topomax, eurontin, [and] zonegran. Bipolar disorder was

8

ruled out by previous providers; Aunt w/ bipolar disorder and mother w/ [history] of depression.

9

Treatment options discussed including trial of lithium if labs are normal.” (Tr. 367) In

10

December of 2010, Siwarski completed a Mental Work Tolerance Recommendations form. (Tr.

11

595-96) She found Petty markedly limited in “ability to maintain attention and concentration,”

12

“ability to perform activities within a schedule,” “ability to complete a workday and workweek

13

without psychologically based symptoms,” and “ability to get along with co-workers or peers.”

14

Id. She found additional moderate limitations in the areas of understanding and memory,

15

concentration and persistence, social interaction, and adaptation. Id.

16

In July of 2009, Petty was examined by Noelle Rohen, Ph.D., for the state disability

17

determination service. (Tr. 293) Rohen offered a diagnostic impression “based on clinical

18

interview and any available records: Axis I: 300.02 Generalized Anxiety Disorder, 296.32

19

Major Depressive Disorder, Recurrent, Chronic, Moderate, 307.89 Pain Disorder Assoc. With

20

both Psychological Factors and a [general medical condition]; Axis II: V71.09 No Diagnosis;

21

Axis III: Defer to medical records.” (Tr. 295) She found Petty “presents with primarily

22

physical complaints, but admits to depression and anxiety.” (Tr. 295) Rohen noted that

23

although Petty’s psychiatric conditions are chronic, they do not appear to be affecting her ability

24

to work except that they may influence her level of pain and her ability to cope. (Tr. 295) She

25

concluded that Petty’s “depression and anxiety may be expected to impact persistence based

26

upon their impact on her pain.” (Tr. 296)

27

In August of 2009, Randall J. Garland, Ph.D., reviewed the medical record for the state

28

disability determination service and completed a Psychiatric Review Technique form. (Tr. 325)
-5-

1

He documented (1) affective disorder (major depressive disorder), (2) anxiety-related disorder

2

(generalized anxiety disorder), and (3) somatoform disorder (pain disorder associated with both

3

psychiatric factors and a general medical condition). (Tr. 325-31) He found moderate

4

limitation in maintaining concentration, persistence, or pace and mild limitation in activities of

5

daily living and maintaining social functioning. (Tr. 335)

6

Garland also completed a Mental Residual Functional Capacity Assessment. (Tr. 321)

7

He found moderate limitation in Perry’s “ability to maintain attention and concentration for

8

extended periods,” “ability to complete a normal work day and work week” and “ability to

9

respond appropriately to changes in the work setting.” (Tr. 321-22) He opined Perry could

10

perform unskilled work which required only the ability to understand, carry out, and remember

11

simple instructions. (Tr. 323)

12
13

In November of 2009, Raymond Novak, M.D., reviewed Garland’s assessment for the
state disability determination service and concurred with his opinions. (Tr. 430)

14
15

Third Party Statement

16

In June of 2009, Petty’s aunt, Karen M. Kasper, submitted a Third Party Function

17

Report describing Petty’s impairments. (Tr. 185-192) Kasper explained that she has known

18

Petty all her life, sees her on holidays, visits with her off and on, and talks with her on the phone

19

often. Id. She stated that “[Petty] used to be a very motivated individual that had no trouble

20

getting things done.” (Tr. 192) She continued, “It’s very sad to see how her life has changed

21

due to migraines and fibromyalgia.” Id.

22
23

Hearing Testimony

24

On December 15, 2010, Petty appeared with counsel at a hearing before ALJ Norman

25

R. Buls. (Tr. 64) At the time of the hearing, Petty was 38 years old. (Tr. 68) She graduated

26

from high school and has two years of college. (Tr. 68)

27

Petty testified that she cannot work due to severe migraines, bad knees, and overall pain

28

from fibromyalgia. (Tr. 70) Since April of 2009, she has been having migraines four days per
-6-

1

week. (Tr. 73) When she has a migraine, she lies in the dark all day with no noise. (Tr. 73)

2

She cannot take medication to alleviate her pain because she has chronic kidney disease. (Tr.

3

73, 552)

4

Petty further testified that her knees limit her ability to perform job related activities. (Tr.

5

74) She can walk comfortably for only 10 minutes at a time (Tr. 74) She can sit for 30 minutes

6

before her knees begin to bother her. (Tr. 75) She tries to sit in a recliner and elevate her knees

7

four times a day, for 20 minutes at a time, to prevent swelling. (Tr. 75)

8
9

Petty also feels pain and numbness in her hands. (Tr. 75) She can type for only three
minutes at a time. (Tr. 76)

10

Petty receives treatment at La Frontera for depression. (Tr. 77) She stated, “I’ll cry at

11

the drop of a hat. I seclude myself; I’ll stay in my room. I get overwhelmed. Sometimes I’ll

12

even roll up in a ball and just start crying for anything.” (Tr. 77)

13

In his decision, dated January 18, 2011, the ALJ found Petty was not disabled. (Tr. 25-

14

36) He found she could perform simple, unskilled sedentary work. (Tr. 30, 32-33, 312) He

15

based his findings largely on the opinions of the non-examining state agency medical

16

consultants, John Fahlberg and Randall Garland, and the consultative examiner, Noelle Rohen.

17

(Tr. 30, 32-33, 312)

18
19

CLAIM EVALUATION

20

Social Security Administration (SSA) regulations require that disability claims be

21

evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920; Baxter

22

v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of

23

whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4),

24

416.920(a)(4). If so, then the claimant is not disabled, and benefits are denied. Id.

25

If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two

26

which requires a determination of whether the claimant has a “medically severe impairment or

27

combination of impairments.” 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a

28

determination at step two, the ALJ uses medical evidence to consider whether the claimant’s
-7-

1

impairment more than minimally limits or restricts his or her “physical or mental ability to do

2

basic work activities.” Id. If the ALJ concludes the impairment is not severe, the claim is

3

denied. Id.

4

Upon a finding of severity, the ALJ proceeds to step three which requires a determination

5

of whether the impairment meets or equals one of several listed impairments that the

6

Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R.

7

§§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s

8

impairment meets or equals one of the listed impairments, then the claimant is presumed to be

9

disabled, and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir.

10

1993). If the claimant’s impairment does not meet or equal a listed impairment, evaluation

11

proceeds to the next step.

12

The fourth step requires the ALJ to consider whether the claimant has sufficient residual

13

functional capacity (RFC)3 to perform past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

14

If yes, then the claim is denied. Id. If the claimant cannot perform any past work, then the ALJ

15

must move to the fifth step, which requires consideration of the claimant’s RFC to perform

16

other substantial gainful work in the national economy in view of claimant’s age, education, and

17

work experience. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4).

18

In determining whether the claimant retains the ability to perform other work, the ALJ

19

may refer to the Medical Vocational Guidelines (“the grids”) promulgated by the SSA. See 20

20

C.F.R. Pt. 404, Subpt. P, App.2; Desrosiers v. Secretary of Health and Human Services, 846

21

F.2d 573, 576-577 (9th Cir. 1988). The grids categorize jobs according to their exertional

22

requirements such as sedentary work, light work, or medium work. Tackett v. Apfel, 180 F.3d

23

1094, 1101 (9th Cir. 1999). The grids calculate whether or not the claimant is disabled based

24

on the claimant’s exertional ability, age, education, and work experience. Id. The grids are a

25

valid basis for denying claims where they completely and accurately describe the claimant’s

26
27
3

28

Residual functional capacity is defined as that which an individual can still do despite
his or her limitations. 20 C.F.R. §§ 404.1545, 416.945.
-8-

1

abilities and limitations. Id. at 1101-02. If the claimant has only exertional limitations, the

2

claim may be resolved based only on the grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115

3

(9th Cir. 2006).

4

If the claimant has significant non-exertional limitations, the grids do not apply. Penny

5

v. Sullivan, 2 F.3d 953, 958-959 (9th Cir.1993). “Non-exertional limitations are limitations that

6

do not directly affect a claimant’s strength.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

7

1988). Mental limitations, for example, are non-exertional. Id. at 1340-41. If significant non-

8

exertional limitations prevent the claimant from performing the full range of work in any

9

exertional category, the ALJ must take the testimony of a vocational expert to deny the claim.

10

Id. at 1341.

11

If the claimant has both exertional and non-exertional limitations, the ALJ must consult

12

the grids first before considering the testimony of a vocational expert at step five. Lounsburry

13

v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006). If the grids direct a finding of disability, that

14

finding must be adopted by the Commissioner. Lounsburry, 468 F.3d at 1116.

15
16

The ALJ’s Findings

17

At step one of the disability analysis, the ALJ found Petty “has not engaged in substantial

18

gainful activity since November 17, 2008, the [originally] alleged onset date . . . .” (Tr. 27).

19

At step two, he found Petty “has the following severe impairments: right carpal tunnel

20

syndrome, migraines, degenerative joint disease (bilateral knees), obesity, and anxiety . . . .”

21

(Tr. 27) At step three, the ALJ found Petty’s impairments did not meet or equal the criteria for

22

any impairment found in the Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R., Part

23

404. (Tr. 27)

24

The ALJ then analyzed Petty’s residual functional capacity (RFC). He found Petty “has

25

the residual functional capacity to perform the full range of sedentary work . . . except that, due

26

to her mental impairment, the claimant is limited to simple, unskilled work. . . .” (Tr. 29)

27
28

At step four, the ALJ found Petty was unable to perform any past relevant work. (Tr. 35)
At step five, the ALJ found that Petty was not disabled using the grids. (Tr. 35)
-9-

1
2

STANDARD OF REVIEW

3

An individual is entitled to disability benefits if he or she demonstrates, through

4

medically acceptable clinical or laboratory standards, an inability to engage in substantial

5

gainful activity due to a physical or mental impairment that can be expected to last for a

6

continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “[A]

7

claimant will be found disabled only if the impairment is so severe that, considering age,

8

education, and work experience, that person cannot engage in any other kind of substantial

9

gainful work which exists in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

10

1993) (quoting Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990)).

11

The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g),

12

1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is

13

not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

14

Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept

15

as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a

16

preponderance.” Id.

17

“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

18

decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider

19

the entire record as a whole and may not affirm simply by isolating a specific quantum of

20

supporting evidence.” Id.

21

In evaluating evidence to determine whether a claimant is disabled, the opinion of a

22

treating physician is entitled to great weight. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir.

23

1993). The Commissioner may reject a treating physician’s uncontradicted opinion only if he

24

sets forth clear and convincing reasons for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

25

1995). If the treating physician’s opinion is contradicted by another doctor, the Commissioner

26

may reject that opinion only if he provides specific and legitimate reasons supported by

27

substantial evidence in the record. Lester, 81 F.3d at 830. No distinction is drawn “between

28
- 10 -

1

a medical opinion as to a physical condition and a medical opinion on the ultimate issue of

2

disability.” Rodriguez v. Bowen, 876 F.2d 759, 761 n.7 (9th Cir. 1989).

3

“The opinion of an examining physician is, in turn, entitled to greater weight than the

4

opinion of a non[-]examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).

5

“[T]he Commissioner must provide ‘clear and convincing’ reasons for rejecting the

6

uncontradicted opinion of an examining physician.” Id. “[T]he opinion of an examining doctor,

7

even if contradicted by another doctor, can only be rejected for specific and legitimate reasons

8

that are supported by substantial evidence in the record.” Id. at 830-31.

9

“Where medical reports are inconclusive, questions of credibility and resolution of

10

conflicts in the testimony are functions solely of the [Commissioner].” Magallanes, 881 F.2d

11

747, 751 (9th Cir. 1989) (punctuation omitted). The Commissioner’s finding that a claimant is

12

less than credible, however, must have some support in the record. See Light v. Social Security

13

Administration, 119 F.3d 789 (9th Cir. 1997).

14

The ALJ need not accept the claimant’s subjective testimony of disability, but if he

15

decides to reject it, “[]he must provide specific, cogent reasons for the disbelief.” Lester, 81

16

F.3d at 834. “Unless there is affirmative evidence showing that the claimant is malingering, the

17

Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.”

18

Id. “General findings are insufficient; rather, the ALJ must identify what testimony is not

19

credible and what evidence undermines the claimant’s complaints.” Id.

20
21

DISCUSSION

22

The ALJ committed legal error when he improperly discounted the opinion of Petty’s

23

treating physician, Marie Benitez, M.D. See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

24

He also erred when he discounted the opinion of the psychiatric nurse, Elizabeth Siwarshi,

25

APRN/BC. The court does not reach Petty’s remaining claims of error.

26

“Because treating physicians are employed to cure and thus have a greater opportunity

27

to know and observe the patient as an individual, their opinions are given greater weight than

28

the opinions of other physicians.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The
- 11 -

1

Commissioner may reject the treating physician’s contradicted opinion4 only if he sets forth

2

“specific and legitimate reasons supported by substantial evidence in the record.” Lester v.

3

Chater, 81 F.3d 821, 830 (9th Cir.1996) (punctuation modified); see also Widmark v. Barnhart,

4

454 F.3d 1063, 1067 (9th Cir. 2006) (applying the “specific and legitimate” test). “This can be

5

done by setting out a detailed and thorough summary of the facts and conflicting clinical

6

evidence, stating his interpretation thereof, and making findings.” Orn v. Astrue, 495 F.3d 625,

7

632 (9th Cir. 2007). “The ALJ must do more than offer his conclusions.” Id. “He must set forth

8

his own interpretations and explain why they, rather than the doctor[’s], are correct.” Id.

9

If the treating source’s opinion “is well-supported by medically and acceptable clinical

10

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

11

in [the] case record,” it must be given “controlling weight.” 20 C.F.R. § 404.1527(c)(2); §

12

416.927(c)(2). If the treating source’s opinion is not given controlling weight, the ALJ must

13

nevertheless analyze other factors such as the length, nature, and extent of the treating

14

relationship; the supportability and consistency of the opinion; and the degree of medical

15

specialization possessed by the treating source. 20 C.F.R. § 1527(d)(2 - 6); § 416.927(d)(2- 6);

16

see also Sameena, Inc. v. U. S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) (“[A] federal

17

agency is obliged to abide by the regulations it promulgates.”). “In many cases, a treating

18

source’s medical opinion will be entitled to the greatest weight and should be adopted even if

19

it does not meet the test for controlling weight.” SSR 96-2p, 1996 WL 374188 at *4 (July 2,

20

1996) In sum, the ALJ must “give good reasons” for the weight given to the treating source’s

21

opinion. 20 C.F.R. § 404.1527(c)(2); § 416.927(c)(2).

22

In this case, Benitez opined that Petty can work only seven hours per day and two to

23

three days per week because of her physical limitations and her migraines. (Tr. 603-04) The

24

ALJ rejected her opinions and found Petty had the physical ability to perform sedentary work

25

relying primarily on the opinion of the non-treating, non-examining state agency medical

26
27
4

28

Benitez’s opinion is contradicted by the examining consultant, Enrique Suarez, M.D.
(Tr. 298)
- 12 -

1

consultant, John Fahlberg, M.D. The ALJ’s stated reasons for doing so are not “specific and

2

legitimate.”

3

The ALJ’s reasoning reads in full as follows: “Dr. Benitez’s opinion is without

4

substantial support from the other evidence of record, which obviously renders it less

5

persuasive.” (Tr. 32) The ALJ’s stated objection is not legally sufficient.

6

The ALJ’s stated rationale is simply a conclusory statement of his opinion. The ALJ,

7

however, “must do more than offer his conclusions.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.

8

2007). He must cite to the record to explain what evidence contradicts Benitez’s opinion and

9

what evidence supports the contrary opinion of the state agency medical consultant. Id. The

10

ALJ “must set forth his own interpretations and explain why they, rather than the doctor[’s],

11

are correct.” Id. This, the ALJ failed to do.

12

The Commissioner argues that Benitez’s opinions are inconsistent with the findings and

13

opinions of the examining state agency physician Suarez. (Doc. 18, p. 19) He further argues

14

that Benitez’s opinion is inconsistent with Petty’s activities of daily living. Id., pp. 19-20. The

15

ALJ, however, did not make these arguments in his decision, and this court may not consider

16

them. Stout v. Commissioner, Social Sec. Admin. 454 F.3d 1050, 1054 (9th Cir. 2006); see also

17

Wilson v. Commissioner of Social Sec., 378 F.3d 541, 546 (6th Cir. 2004) (“A court cannot

18

excuse the denial of a mandatory procedural protection simply because, as the Commissioner

19

urges, there is sufficient evidence in the record for the ALJ to discount the treating source’s

20

opinion . . . .”).

21
22

The court further finds that the ALJ failed to properly analyze the opinion of Elizabeth
Siwarski, APRN/BC.

23

In December of 2010, Elizabeth Siwarski, APRN/BC, completed a Mental Work

24

Tolerance Recommendations form. (Tr. 595-96) She found Petty markedly limited in “ability

25

to maintain attention and concentration,” “ability to perform activities within a schedule,”

26

“ability to complete a workday and workweek without psychologically based symptoms,” and

27

“ability to get along with co-workers or peers.” Id. She found additional moderate limitations

28
- 13 -

1

in Perry’s understanding and memory, concentration and persistence, social interaction, and

2

adaptation. Id.

3

The ALJ noted that Siwarski is not a physician or psychologist and therefore is not an

4

“accepted medical source.” He then stated that “I have considered Nurse Siwarski’s Mental

5

Work Tolerance Recommendations and afford the same little weight in relation to how the

6

claimant’s mental impairments affect her ability to work.” (Tr. 31) The ALJ’s analysis is

7

legally insufficient.

8

The ALJ is correct in observing that an Advanced Practice Registered Nurse is not

9

classified by the Social Security Administration as an “acceptable medical source” and therefore

10

is not given the deference accorded to a physician or psychologist. See 20 C.F.R. 404.1513,

11

416.913. Nevertheless, “medical sources who are not acceptable medical sources” “are

12

important and should be evaluated on key issues such as impairment severity and functional

13

effects, along with the other relevant evidence in the file.” Tippett v. Commissioner of Social

14

Sec., 2011 WL 6014015, 7 (D.Or. 2011) (quoting SSR 06-03p, at *3). “Factors the ALJ should

15

consider when determining the weight to give an opinion from these ‘important’ sources . . .

16

include: The length of time the source has known the claimant and the number of times and

17

frequency that the source has seen the claimant, the consistency of the source’s opinion with

18

other evidence in the record, the relevance of the source’s opinion, the quality of the source’s

19

explanation of her opinion, and the source’s training and expertise.” Tippett v. Commissioner

20

of Social Sec., 2011 WL 6014015, 7 (D.Or.2011) (quoting SSR 06-03p, at *4).

21

Here, the ALJ stated in a conclusory fashion that he gave Siwarski’s opinions little

22

weight. He did not explain why he discounted her opinions. This was error. An ALJ is free

23

to discount testimony from other sources, but as the Commissioner concedes, he must give

24

“reasons germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

25

2012); (Doc. 18, p. 20). The ALJ here failed to do that.

26

The Commissioner notes that Siwarski’s opinions are inconsistent with the findings and

27

opinions of the examining state agency examining consultant, Rohen. (Doc. 18, p. 21)

28

Accordingly, he argues, the ALJ could properly discount Siwarski’s opinions. The ALJ,
- 14 -

1

however, did not make this argument in his decision, and this court may not consider it. Stout

2

v. Commissioner, Social Sec. Admin. 454 F.3d 1050, 1054 (9th Cir. 2006).

3
4

Conclusion

5

The ALJ failed to give specific and legitimate reasons for discounting the opinion of

6

Petty’s treating physician, Marie Benitez. Accordingly, Benitez’s opinions should be credited

7

as a matter of law. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Lester v. Chater,

8

81 F.3d 821, 834 (9th Cir. 1996) (“Where the Commissioner fails to provide adequate reasons

9

for rejecting the opinion of a treating or examining physician, we credit that opinion as a matter

10

of law.”).

11

“Where we conclude that a claimant’s testimony or a doctor’s opinion should have been

12

credited and, if credited, would have led to a finding of eligibility, we may order the payment

13

of benefits.” Regennitter v. Commissioner, 166 F.3d 1294, 1300 (9th Cir. 1999); see also

14

Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994) (remanding for payment of benefits

15

where the Secretary did not provide adequate reasons for disregarding the treating physician’s

16

opinion).

17

In this case, the ALJ improperly discounted the opinion of Petty’s treating physician.

18

Crediting this opinion indicates that Petty cannot work full time and is therefore disabled. See

19

SSR 96–8p; see also Rollins v. Massanari, 261 F.3d 853, 859 (9th Cir. 2001) ( “An ability to

20

keep to an 8–hour a day, 5–day a week schedule without accumulating too many absences is

21

a pre-requisite for many jobs.”); Bladow v. Apfel, 205 F.3d 356, 359 (8th Cir. 2000); see, e.g.,

22

Ryan v. Commissioner of Social Sec., 528 F.3d 1194, 1196, 1202 (9th Cir. 2008) (Claimant was

23

disabled because she “would not be able to maintain regular attendance in the work place due

24

to extreme anxiety and continuing depression, especially when [placed] in a work like situation

25

. . . .”).

26

There are no outstanding issues to be resolved. Remand of the case would serve no

27

useful purpose. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996) (“We may direct an

28

award of benefits where the record has been fully developed and where further administrative
- 15 -

1

proceedings would serve no useful purpose.”). A finding of disability should be entered. See

2

also Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to

3

decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of

4

disability benefits adjudication.”).

5
6

IT IS ORDERED that the final decision of the Commissioner is reversed. The case is

7

remanded for payment of benefits. The Commissioner may adopt Petty’s amended onset date,

8

April 17, 2009. (Tr. 67)

9

The Clerk of the Court is directed to prepare a judgment and close this case.

10
11

DATED this 20th day of June, 2013.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 16 -