Caves v. Astrue

Filing 21

ORDER that this action is is REMANDED to the Commissioner for immediate calculation and award of benefits. The Clerk of Court is DIRECTED to enter Judgment accordingly and to close its file in this matter. Signed by Magistrate Judge Charles R Pyle on 9/12/2014. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
of the Social Security Administration, )
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Defendant.
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Melissa Caves,
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No. CV 12-513-TUC-CRP
ORDER

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Plaintiff has filed the instant action seeking review of the final decision of the

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Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The Magistrate Judge has

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jurisdiction over this matter pursuant to the parties’ consent. See 28 U.S.C. § 636(c).

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Pending before the Court are Plaintiff’s Opening Brief (Doc. 17) (“Plaintiff’s Brief”),

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Defendant’s Opposition to Plaintiff’s Opening Brief (Doc. 18) (“Defendant’s Brief”), and

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Plaintiff’s Reply (Doc, 19). For the following reasons, the Court remands this matter for an

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immediate award of benefits.

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BACKGROUND

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In March 2009, Plaintiff protectively filed applications for disability insurance

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benefits and supplemental social security income under the Social Security Act.

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(Administrative Record (“AR.”) 28, 174, 181). Plaintiff was born in 1982 and has earned a

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Bachelor of Arts degree. (AR. 81; Plaintiff’s Brief, p. 4). Plaintiff worked from October

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2008 to December 2008 as a substitute teacher1, in September 2008 as a clerk at a temp

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agency, in May 2008 as a cashier trainer at a convenience store, in April 2008 in data entry,

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in December 2007 as a cashier at a hotel, from September 2007 to October 2007 as a

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dispatcher, and from September 2006 to August 2007 as a cashier at a video store. (AR.

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208). Plaintiff lives with her sister. (AR. 60).

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Plaintiff asserts that she has been unable to work since March 1, 2008 due to

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migraines, depression, bipolar disorder and OCD. (AR. 207). After Plaintiff’s applications

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were denied initially and on reconsideration, she requested a hearing before an

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Administrative Law Judge. (AR. 101, 105, 111, 114, 118). On October 19, 2010, Plaintiff,

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who was represented by counsel, her sister, and vocational expert (“VE”) Ruth Van Vleet

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testified before ALJ George Reyes (“ALJ”). (AR. 51-96). On December 14, 2010, the ALJ

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issued his decision finding Plaintiff was not disabled under the Social Security Act. (AR.

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28-37). Thereafter, Plaintiff requested Appeals Council Review and submitted additional

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evidence which the Appeals Council considered in making its determination to deny her

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request for review.2 (AR. 1-5). Upon the Appeals Council denial of Plaintiff’s request for

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review, the ALJ’s December 14, 2010 decision became the final decision of the

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Commissioner.

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Plaintiff described her stint as a substitute teacher as follows: “The first assignment
I went out on, I was there about an hour and started having a panic attack and had to call my
sister to come get me.” (AR. 62). Although Plaintiff attempted to work again as a substitute
teacher, she was not given further opportunities: “after repeated attempts on my part and I
was unable to do the job because of panic attacks. And I was very upset and start throwing
up, and so they would have to send me home.” (Id.).
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When the Appeals Council accepts and considers new evidence in deciding a request
for review, that evidence becomes part of the administrative record which the district court
must consider when reviewing the Commissioner's final decision for substantial evidence.
See Brewes v. Commissioner of Social Security Administration, 682 F.3d 1157, 1163 (9th Cir.
2012); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir 1993). Therefore, the Court considers
Plaintiff’s additional evidence accepted by the Appeals Council.
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Plaintiff then initiated the instant action, raising the following three grounds for relief:

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(1) the ALJ failed to account for nurse practitioner Amy Tees’ opinion concerning Plaintiff’s

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absences from work due to migraine headaches; (2) the ALJ erroneously rejected the 2010

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opinion of treating psychiatrist, Steven J. Bupp, M.D.; and (3) substantial evidence did not

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support the ALJ’s reliance on the opinion of Agency examining psychologist James

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Armstrong, Ph.D.

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STANDARD

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The Court has the “power to enter, upon the pleadings and transcript of the record, a

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judgment affirming, modifying, or reversing the decision of the Commissioner of Social

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Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g). The

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factual findings of the Commissioner shall be conclusive so long as they are based upon

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substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti

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v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the

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Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based

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on legal error or are not supported by substantial evidence in the record as a whole.” Tackett

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v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

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Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a

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preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871,

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873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is

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

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conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can

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support either outcome, the court may not substitute its judgment for that of the ALJ.”

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Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)).

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Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence,

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resolve material conflicts in the evidence and determine the case accordingly. Matney, 981

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F.2d at 1019. However, the Commissioner's decision “‘cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting

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Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the Court must “‘consider
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the record as a whole, weighing both evidence that supports and evidence that detracts from

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the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

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1993)).

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DISCUSSION

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SSA regulations require the ALJ to evaluate disability claims pursuant to a five-step

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sequential process. 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant

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must show she has not worked since the alleged disability onset date, she has a severe

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impairment, and her impairment meets or equals a listed impairment or her residual

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functional capacity (“RFC”)3 precludes her from performing past work. Where the claimant

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meets her burden, the Commissioner must show that the claimant is able to perform other

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work, which requires consideration of the claimant’s RFC to perform other substantial

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

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experience.

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THE ALJ’S REJECTION OF TREATING DR. BUPP’S OPINION

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The ALJ found that Plaintiff had the following severe impairments: migraine

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headaches, obesity, bipolar disorder, obsessive-compulsive disorder, and anxiety disorder.

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(AR. 30). He determined that Plaintiff had the RFC to perform medium work, except that

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she should not use ladders, ropes or scaffolds and she must avoid exposure to hazards such

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as dangerous machinery and unprotected heights. (AR. 32). He also found that although

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Plaintiff “can attend and concentrate during an 8-hour day with breaks every two hours in

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a customary manner[,...] Claimant is limited to simple tasks that are not performed in a fast-

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paced production environment and involve only simple work-related decisions. Claimant is

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limited to only occasional conversation or interpersonal interaction with her supervisors or

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coworkers and further limited to only incidental public contact.” (Id.). The ALJ found that

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Plaintiff had no past relevant work, but based upon testimony from the VE, Plaintiff “would

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RFC is defined as that which an individual can still do despite his or her limitations.
20 C.F.R. §§ 404.1545, 416.945.
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be able to perform the requirements of representative light unskilled occupations such as

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janitor....” (AR. 36).

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In reaching his decision, the ALJ gave “little weight” to the opinion of Plaintiff’s

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treating psychiatrist Dr. Bupp, and gave “substantial weight” to the opinion of examining

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psychologist Dr. Armstrong. (AR. 35). Plaintiff agues that the ALJ erroneously rejected

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Dr. Bupp’s opinion.

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It is well-settled that the opinions of treating physicians, like Dr. Bupp, are entitled

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to greater weight than the opinions of examining or non-examining physicians. Andrews v.

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Shalala, 53 F.3d 1035, 1040-1041 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 751

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(9th Cir. 1989) ("We afford greater weight to a treating physician's opinion because he is

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employed to cure and has a greater opportunity to know and observe the patient as an

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individual.")(internal quotation marks and citation omitted); see also 20 C.F.R §§ 404.1527,

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416.927 (generally, more weight is given to treating sources). An ALJ may reject a treating

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physician’s uncontradicted opinion only after giving “‘clear and convincing reasons’

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supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th

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Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Additionally, "[a]

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treating physician's opinion on disability, even if controverted, can be rejected only with

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specific and legitimate reasons supported by substantial evidence in the record." Id.; see also

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Holohan v. Massanari, 246 F.3d 1195, 1202-1203 (9th Cir. 2001).

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In September 2010, Dr. Bupp opined that since March 1, 2008, Plaintiff has been

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markedly limited in her abilities to: understand and remember detailed instructions; carry out

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detailed instructions; maintain attention and concentration for extended periods; perform

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activities within a schedule, maintain regular attendance and be punctual; sustain an ordinary

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routine without special supervision; complete a workday and workweek without interruptions

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from psychologically based symptoms and perform at a consistent pace without more than

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the normal rest periods; accept instructions and respond appropriately to criticism from

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supervisors; maintain socially appropriate behavior and adhere to basic standards of neatness

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and cleanliness; respond appropriately to changes in the work setting; and set realistic goals
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or make plans independently of others. (AR. 169-171). Dr. Bupp also opined that Plaintiff

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was moderately limited in five other areas. (Id.). Dr. Bupp further indicated that Plaintiff

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“continued to deteriorate. She is unable to function for any gainful employment.” (AR. 171

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(also indicating Plaintiff could work 0 hours 0 days per week and would be expected to miss

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work 30 days per month4)). He states that these limitations would last more than 12 months.

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(Id).

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The ALJ rejected Dr. Bupp’s opinion because his “treatment records are inconsistent

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with the GAF scores and his opinion is extreme compared with his treatment observations

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that claimant was improving while on medication and subsequently deteriorated with stress

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and anxiety when her mother moved into town.” (AR. 35). The ALJ also stated that Dr.

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Bupp noted no complaints of pain or other symptoms from Plaintiff consistent with his

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opinion. (Id.). He found “Dr. Bupp’s and/or claimant’s credibility questionable when his

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treatment records indicate claimant had increased contact with her mother and claimant was

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caring for her mother, yet in her testimony the claimant denies this was the case....Either Dr.

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Bupp or the claimant is incorrect in this important fact because if the claimant is taking care

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of her mother, then she is probably able to care for herself.” (Id.).

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Instead, the ALJ gave substantial weight to examining psychologist Dr. Armstrong’s

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June 2009 opinion that Plaintiff’s memory was within normal limits and her sustained

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concentration and persistence, social interaction, and adaptation were within normal limits,

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but subject to bipolar interference. (AR. 35, 317-18).

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Plaintiff challenges each reason the ALJ provided for rejecting Dr. Bupp’s opinion.

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Dr. Bupp began treating Plaintiff at CODAC Behavioral Health Services in approximately

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Plaintiff does not rely on Dr. Bupp’s statements that Plaintiff could work 0 hours per
week and was unable to function for any gainful employment in this litigation. (Plaintiff’s
Reply, p. 5). Such opinions are on an issue that is reserved for the Commissioner. See 20
C.F.R. § 404.1527(d)(1)-(3); McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011) (“although
a treating physician’s opinion is generally afforded the greatest weight in disability cases, it
is not binding on an ALJ with respect to the existence of an impairment or the ultimate
determination of disability.” (citation and internal quotation marks omitted)).
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2008. (See AR. 68 (at October 2010 hearing, Plaintiff testified that Dr. Bupp had been her

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treating psychiatrist for two years)). Prior to seeing Dr. Bupp, Plaintiff had been treated

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beginning in 2002 through her college counseling service at the University of Oklahoma

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where she was diagnosed with major depression, recurrent; anxiety disorder, NOS; and

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migraine headaches. (AR. 297 (Plaintiff was referred for psychiatric evaluation by a school

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counselor due to problems with depression)). From 2002 to 2006, Plaintiff was treated

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through college counseling services by Baiba Ercum, M.D., who throughout that time noted

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Plaintiff’s complaints of depression, anxiety, OCD regarding hand washing, over-eating,

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insomnia, and nightmares, and prescribed medications for same including Zoloft, Paxil,

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Lexapro, Trazodone, Alprazolam, Clonazepam, Zyprexa. (AR. 298-99, 302). Plaintiff also

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attended counseling. (Id.). Plaintiff ultimately decided to withdraw from university to move

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to Arizona “to receive family support.” (AR. 301; see also AR. 299 (Plaintiff moved from

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Oklahoma to Arizona to live with her sister)). Dr. Ecrum last saw Plaintiff on January 19,

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2006. (AR. 299). Dr. Ecrum’s final diagnoses were: obsessive compulsive disorder, severe;

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post-traumatic stress disorder; major depression, recurrent; eating disorder, NOS; personality

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disorder, NOS; migraine headaches; and exogenous obesity. (AR. 300).

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Plaintiff’s therapist during treatment in Oklahoma, Jason White, Ph.D., wrote in a

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January 20, 2006 Termination Summary Report that Plaintiff presented with depression,

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anxiety (including obsessive-compulsive disorder), family conflict and social isolation, past

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sexual assault/molestation5, and childhood experiences of trauma and abuse. (AR. 301).

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Plaintiff attended 3 crisis sessions and 106 individual counseling sessions. (AR. Id.). When

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Plaintiff terminated treatment, she “was experiencing severe symptoms of obsessive-

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compulsive disorder and resulting disruptions of functioning. [Plaintiff] was depressed.”

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(Id.). As to future therapeutic recommendations, Dr. White indicated that Plaintiff “has an

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The record reflects Plaintiff’s report that she was sexually assaulted by her cousin
when she was five years of age. (See AR. 315 (reporting full penile penetration), 393).
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extensive history of family conflict, abuse (physical, sexual, and verbal/emotional), and

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trauma. Trust is difficult as a result.” (Id.).

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In late January 2006, soon after leaving Oklahoma, Plaintiff sought mental health

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treatment at CODAC Behavioral Health. (See AR. 393 (indicating January 31, 2006 as “Date

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of Initial Assessment/Last Review”)). Notes dating back to April 2007 reflect that Plaintiff

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was taking Ativan for anxiety, Prozac for OCD and depression, and Risperdal for mood

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instability. (AR. 417). By August 2007, Nurse Practitioner Bonnie Hoff noted that Plaintiff

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was taking Prozac, Risperdal, Lamictal, Lorezapam, and had been assessed a GAF score of

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49. (AR. 413). Plaintiff also received individual therapy at CODAC. (See e.g., 393, 398-99,

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401-03).

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By January 2009, Dr. Bupp had diagnosed: major depressive disorder, severe without

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psychotic features; and OCD. (AR. 380). At that time, Plaintiff was taking Risperdal,

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Prozac, Effexor, and Trazadone. (Id.). Throughout early 2009, Dr. Bupp assessed Plaintiff’s

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GAF score at 45. (AR. 370, 378-9). By July 2009, Dr. Bupp’s diagnoses: included major

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depressive disorder, severe without psychotic features; OCD; PTSD; obesity, and other

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neurological disorders. (AR. 363). In addition to prescribing Ambien for insomnia, Prozac

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for OCD, Effexor for depression and anxiety, and Lorazepam for anxiety, he had also started

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Lithium for mood swings. (Id.). Plaintiff’s GAF score increased to 50. (AR. 364). By

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March of 2010, Dr. Bupp’s diagnoses included bipolar/major recurrent depression, severe

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without psychotic features; OCD; PTSD; obesity; and other neurological disorders. (AR.

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556-57). At that time, Plaintiff was taking Lorazepam, Prozac, Effexor, Lithium-carbonate,

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and Amitriptyline. (AR. 557). He noted that Plaintiff’s mother had moved to town and

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Plaintiff’s functioning and symptoms had worsened, she was exhausted and presented as

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“sick and depressed” on mental status examination. (Id.). He assessed a GAF score of 45.

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(Id.). Although in May of 2010, Plaintiff reported less panic attacks and OCD, Dr. Bupp

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questioned whether “that is due to improvement on some dimensions or just depression

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overriding[.]” (AR. 553 (also noting that Plaintiff was depressed and “doesn’t not hold her

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head up straight due to weariness.”)). In June 2010, Plaintiff presented with “depression and
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stress out of control” and reported “much increased OCD–sounds like defense structure (goes

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and cleans).” (AR. 550). Her GAF score remained at 45. (Id.). In October 2010, Dr. Bupp

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added a prescription for Selegiline. (AR. 592). Dr. Bupp’s treatment notes through late 2011

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reflect Plaintiff’s continued depression, tearfulness, hypomania, and irritability. (AR. 570-

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71, 575, 577, 584). By November 2011, Plaintiff was taking Lorazepam for anxiety,

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Lamictal for mood swings, and Prozac for depression. (AR. 571).

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When rejecting Dr. Bupp’s opinion, the ALJ stated that his “treatment records are

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inconsistent with the GAF scores....” (AR. 35). Plaintiff argues that the ALJ improperly

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rejected Dr. Bupp’s opinion “based on an unidentified [GAF] score.” (Plaintiff’s Brief, p.

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13 (“The ALJ did not cite any specific GAF score.”)). Plaintiff further argues that “[a] GAF

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score does not have a direct correlation to the severity requirements in mental disorders

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listings.” (Id. (citing 65 Fed.Reg. 50746, 50764-65 (2000)). Defendant counters that Dr.

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Bupp’s assessed GAF scores “were regularly 45...indicating serious symptoms but not

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necessarily indicating that Plaintiff was entirely incapable of all work[]”, thus, such score

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was inconsistent with Dr. Bupp’s “extreme” opinion. (Defendant’s Brief, p. 14 (citing AR.

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35-36)).

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Citing the Diagnostic and Statistical Manual of Mental Disorders IV, the ALJ

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recognized that a GAF “score within the range of 41-50...demonstrate[s] serious symptoms

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or any serious impairment in social, occupational or school functioning.” (AR. 34). It is

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arguable that Defendant misinterprets the ALJ’s opinion given that the ALJ states that GAF

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scores of 45 are “not consistent with mental status evaluations of notes such as judgment OK,

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‘mood fair’, calm affect, and deliberate affect and memory intact.” (Id.). The ALJ also

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stated that even when treatment notes indicated “apparent improvement...[Plaintiff ] was still

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classified as having a GAF of 50.” (Id.). Thus, it could be argued that the ALJ was

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suggesting that Dr. Bupp’s low GAF scores were inconsistent with his findings regarding

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Plaintiff’s mental status rather than, as Defendant posits, not extreme enough to support the

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conclusion that Plaintiff is unable to work. In either event, Plaintiff is correct that the Social

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Security Administration has not endorsed GAF scores as a method for evaluating the severity
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of impairments. See 65 Fed.Reg. 50746, 50764–65 (Aug. 21, 2000); see also Cowen v.

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Commissioner of Social Sec., 400 Fed.Appx. 275, 277 n.1 (9th Cir. 2010) (same); Vose v.

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Astrue, 2007 WL 4468720, *17 (D.Ariz. Dec.17, 2007) (“[C]ourts have specifically held that

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a GAF score does not directly correlate to disability.” (citations omitted)). Moreover, when

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defining GAF scores within the range of 41-50, the ALJ omitted parenthetical information

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that did correlate to Dr. Bupp’s observations as follows: a GAF score within the range of 41-

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50 denotes “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent

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shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g.,

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no friends, unable to keep a job).” American Psychiatric Association, Diagnostic and

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Statistical Manual of Mental Disorders, p. 32 (4th ed.). The record, including records from

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CODAC, is clear that Plaintiff carries a diagnosis of OCD by CODAC providers, has been

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unable to keep a job, and endorsed suicidal ideation at times. (See e.g. AR 83-84 (Plaintiff

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testified that while in college she was unable to keep jobs due to panic attacks and OCD);

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AR. 378 (in note cited by the ALJ, at AR. 34, to undercut GAF score, Dr. Bupp wrote that

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Plaintiff’s “OCD needs reassurance”); AR. 382 (Plaintiff is “currently unable to maintain

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long-term employment due to symptoms.”); AR. 390 (Plaintiff “has been in treatment since

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2006 and has not been able to fin[d] employment....She did work[] at a video store but she

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was not able to keep up with the work, so she quiet [sic].”); AR. 393 (Plaintiff “continues to

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struggle with finding and securing a job due to ongoing severe migraines and depression.”

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and also noting Plaintiff’s statement that “anxiety leads to OCD symptoms.”); AR. 394

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(Plaintiff “reported continuously checking of doors and oven; symptoms interfere w/

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functioning.”); AR. 395 (noting Plaintiff “is here due to her inability to cope [with] the

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outside world” and “watch/monitor closely due to s[uicidal] i[deation].”6); AR. 399 (Plaintiff

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started job at convenience store and quit the same day because she “couldn’t take the stress.

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It’s like I’m not really the one who’s doing it; like an out of body experience.”); AR. 401

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Plaintiff testified that in December 2008, the same month and year that this
psychiatric progress note was created, she “was put in a kind of halfway house kind of
situation through [CODAC for one week]...because I was suicidal.” (AR. 58-59).
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(Plaintiff reported anxiety regarding starting a new job the next day, she stated her bulimia

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had returned and she felt out of control); AR. 550 (Plaintiff reported “much increased

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OCD...(goes and cleans).”); AR. 570 (some suicidal ideation but no plan, “mostly musings

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as it would end suffering”)).

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The ALJ also found Dr. Bupp’s opinion “extreme compared with his treatment

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observations that claimant was improving while on medication and subsequently deteriorated

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with stress and anxiety when her mother moved into town.” (AR. 35). The Ninth Circuit has

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been clear that when “discussing mental health issues, it is error to reject a claimant's

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testimony merely because symptoms wax and wane in the course of treatment. Cycles of

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improvement and debilitating symptoms are a common occurrence, and in such

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circumstances it is error for an ALJ to pick out a few isolated instances of improvement over

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a period of months or years and to treat them as a basis for concluding a claimant is capable

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of working.” Garrison v. Colvin, __ F.3d. __, 2014 WL 3397218 at *18 (9th Cir. July 14,

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2014); see also Holohan v. Massanari, 246 F.3d 1195, 1206 (9th Cir. 2001) (The treating

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physician’s “statements must be read in context of the overall diagnostic picture he draws.

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That a person who suffers from severe panic attacks, anxiety, and depression makes some

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improvement does not mean that the person’s impairments no longer seriously affect her

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ability to function in a workplace.”). Thus, “[r]eports of ‘improvement’ in the context of

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mental health issues must be interpreted with an understanding of the patient’s overall well-

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being and nature of her symptoms.” Garrision, __ F.3d. __, 2014 WL 3397218 at *18 (citing

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Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.2008)).

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While Dr. Bupp noted Plaintiff’s improvement from time to time, Plaintiff’s diagnoses

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of severe major depression and OCD remained constant, and subsequent diagnoses of Bipolar

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Disorder and PTSD were made adding further to Plaintiff’s constellation of mental health

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issues. Moreover, as discussed above, Plaintiff’s GAF scores remained within the 45 to 50

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range, except for a period in 2011 when it dropped to 387 upon Plaintiff’s presentation with

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suicidal ideation (AR. 570), suspected “shift to irritable-hypomania” (AR. 575), and

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dysphoric mania with “spotty” memory and “definite cognitive struggle.” (AR. 577). There

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is simply no basis in the record that any noted improvement was of such magnitude and

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lasted for such duration so as to undermine Dr. Bupp’s September 2010 opinion regarding

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Plaintiff’s abilities to function. Moreover, in discounting that the arrival of Plaintiff’s mother

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could negatively affect any progress Plaintiff may have been making, the ALJ overlooks the

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very fact that such a new and significant8 stressor in Plaintiff’s life, instead, supports

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Plaintiff’s reports of increased depression, OCD and panic attacks as well as Dr. Bupp’s

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findings during this time which included depressed mood, disgusted, or blunted affect,

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A GAF score ranging between 31 and 40 signifies: “Some impairment in reality
testing or communication (e.g., speech is at times illogical, obscure or irrelevant) OR major
impairment in several areas such as work or school, family relations, judgment, thinking or
mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and is failing at school).” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, p. 32 (4th
ed.).
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The record supports the conclusion that the arrival of Plaintiff’s mother on the scene
could constitute a significant stressor given Plaintiff’s report that her mother suffered from
bipolar disorder since Plaintiff was a child (AR. 393), in 2009 her mother attempted suicide
and left a note blaming Plaintiff (AR. 57), and that Plaintiff “has an extensive history of
family conflict, abuse (physical, sexual, and verbal/emotional), and trauma.” (AR. 301).
Plaintiff testified that being around her mother exhausts her because “[m]y mother reminds
me of my abusive childhood, and I have nightmares about that. And I don’t sleep well.”
(AR. 64; see also AR. 542 (CODAC assessment and planning note of Plaintiff’s report of
“continued anger and frustration with her mother and states that being around her mother
triggers PTSD symptoms more often than when she is alone. However, [Plaintiff] reports
reduction in nightmares and a decrease in negative self-talk.”)). Maria Ornelas, BHA, AA,
at CODAC noted that Plaintiff “was not doing well. She seemed very exhausted and
overwhelmed because she is having to care for her mother whom [sic] is bip[olar] and
depressed. [Plaintiff] would like to coordinate care with mothers [sic] C[ase] M[anager] to
get some kind of relief and assistance.” (AR. 547). Additionally, Plaintiff testified that when
her mother arrived in Tucson and “got an apartment, she was not able to live on her own.
So [Plaintiff] and [her] sister did have to step in and call her CM, her case manager, and try
to get her help because she was suicidal.” (AR. 64).
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1

diminished judgment and insight. (See AR. 551-57).

2

The ALJ also rejected Dr. Bupp’s opinion because he “noted no complaints of pain

3

or other symptoms from [Plaintiff] in his treatment notes consistent with his opinion.” (AR.

4

35). As Plaintiff persuasively points out, Dr. Bupp is a psychiatrist and did not treat Plaintiff

5

for physical pain. (Plaintiff’s Brief, p. 13). Moreover, Dr. Bupp and other CODAC

6

providers noted Plaintiff’s continued reports of migraines.9 (See e.g., AR. 392, 393, 403,

7

589).

8

In supporting the ALJ’s statement, Defendant argues that “Dr. Bupp‘s extreme

9

opinion was entirely contradicted by Plaintiff’s statements to Dr. Bupp and other CODAC

10

therapists regarding her daily activities and aspirations.” (Opposition, p. 15). As examples,

11

Defendant cites Plaintiff’s statements that “she was looking for a job, was engaged in

12

vocational rehabilitation, was interested in pursuing a master’s degree or publishing a book,

13

was able to complete activities of daily living, and was able to handle her personal care...”,

14

and that she was “planning on going to a concert, and was looking in to [sic] online dating,

15

traveling, and writing a book.” (Id.).

16

Defendant’s reliance on Plaintiff’s statements to CODAC providers about her

17

aspirations does not undercut Dr. Bupp’s findings and opinions. The record is clear that

18

although Plaintiff did look for a job, and sometimes found employment, she did not maintain

19

such employment. As to Plaintiff’s other aspirations, Plaintiff succinctly points out that

20

“[s]uggestions by a person with bipolar disorder to engage in such activities are not even a

21

scintilla of evidence for full-time work capacity.” (Reply, p. 7; see also AR. 65 (Plaintiff

22

testified that she did look into online dating but decided her sister could not afford it and that

23

she never looked into traveling or writing or researching book)). The record reflects

24

Plaintiff’s statement that she had no trouble dressing or with personal hygiene, except

25

sometimes when she is manic. (AR. 316). That Plaintiff is able to attend to her personal care

26
9

27
28

Despite records from CODAC referencing Plaintiff’s report that she suffered from
migraines, the ALJ nonetheless discounted Plaintiff’s credibility in part because she “did not
mention migraine headaches during treatment sessions at CODAC.” (AR. 33).
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1

needs and engage in activities of daily living does not necessarily correlate to the ability to

2

sustain full-time work. See SSR 96-8p (to be disabled, the claimant must not be able to

3

perform sustained full-time work). The Ninth Circuit has repeatedly asserted that “[o]ne

4

does not need to be 'utterly incapacitated' in order to be disabled." Vertigan v. Halter, 260

5

F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989));

6

see also Vick v. Commissioner of Soc. Sec., 57 F.Supp.2d 1077, 1086 (D. Or. 1999) ("If

7

claimant's activity is in harmony with her disability, the activity does not necessarily indicate

8

an ability to work.") Thus, “[e]ngaging in activities, including household chores, is not

9

necessarily inconsistent with a finding of disability.” Vick, 57 F.Supp.2d at 1085. Nor is

10

there any suggestion in the record that Plaintiff spends a substantial part of her day engaged

11

in pursuits involving the performance of functions that are transferrable to a work setting.

12

See Fair, 885 F.2d at 603. The Honorable Richard Posner succinctly summarized this point:

13

The critical differences between activities of daily living and activities in a
full-time job are that a person has more flexibility in scheduling the former
than the latter, can get help from other persons..., and is not held to a minimum
standard of performance, as she would be by an employer. The failure to
recognize these differences is a recurrent, and deplorable, feature of opinions
by administrative law judges in social security disability cases.

14
15
16

Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2011). This observation is consistent with

17
Vertigan and Fair. In the instant case, Plaintiff’s ability to attend to her personal care do not
18
negate Dr. Bupp’s assessed limitations.
19
The ALJ also rejected Dr. Bupp’s opinion based on the issue of whether Plaintiff
20
cared for her mother. The ALJ found “Dr. Bupp’s and/or [Plaintiff’s] credibility was
21
questionable...” because Dr. Bupp noted Plaintiff’s increased contact with her mother and
22
that she was caring for her mother while Plaintiff “denie[d] this was the case.” (AR. 35). The
23
ALJ misstates the record. First, it is reasonable to conclude that Plaintiff’s mother’s move
24
to Tucson resulted in increased contact between the two as reflected in the CODAC
25
treatment notes. At the hearing, Plaintiff testified that she had given her mother money, “but
26
I have not been like her physical caregiver in the home with her....” (AR. 58). Additionally,
27
the ALJ read from a June 2010 treatment CODAC assessment and service planning note by
28
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1

Maria Ornelas, BHT, AA, stating that: “‘Member needs assistance in coordination of care

2

with mother [sic] C[ase] M[anager]...Member was not doing well. She seemed exhausted

3

and overwhelmed because she was having to care for her mother, whom [sic] is bip[olar] and

4

depressed. Member would like to coordinate care with mother’s CM to get some kind of

5

relief and assistance.’”10 (AR. 63-64). He then asked Plaintiff whether she was “in fact

6

taking care of [her] mother?” to which Plaintiff replied:

10

A.[Plaintiff]: I was helping her after she, she had moved here, she moved to
Tucson and, me and my sister had not seen her in a couple of
years. We spoke to her doctors, and her doctors said that she
would be able to live on her own. But when she got here and
got an apartment, she was not able to live on her own. So me
and my sister did have to step in and call her CM, her case
manager, and try to get her help because she was suicidal.

11

Q. [ALJ]:

You said you were helping her. Were you helping her in any
other way besides what you just told us?

A.

No.

Q.

Then why were you exhausted?

A.

My mother reminds me of my abusive childhood, and I have
nightmares about that. And I don’t sleep well.

7
8
9

12
13
14
15
16

(Id.). Plaintiff’s testimony is consistent with the treatment note the ALJ read into the record.

17

The evidence of record does not suggest that Plaintiff was caring for her mother beyond that

18

reflected in Plaintiff’s testimony which indicates she sought assistance with aspects of her

19

mother’s care and may have provided financial assistance. Moreover, the ALJ’s comment

20

that if Plaintiff can care for her mother, then she “is probably able to care for herself” (AR.

21

35), does not undermine or conflict with Dr. Bupp’s opinion or the record as a whole. As

22

discussed above, there is no suggestion in the record that Plaintiff spends a substantial part

23

of her day engaged in pursuits, such as caring for her mother or herself, which involve the

24
25
26
27
28

10

The note quoted by the ALJ is at AR. 547 which is marked as page 21F9 of the
record. The ALJ stated the note was in the record at page 21F3. (AR. 64). However, the
note that appears at 21F3 (AR. 541) does not contain the language quoted by the ALJ,
although the provider did note Plaintiff’s report of “continued frustration with her mother and
sister, which remind her of her childhood and increase her PTSD symptoms somewhat.”
(AR. 541).
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1

performance of functions that are transferrable to a work setting. See Fair, 885 F.2d at 603.

2

On the instant record, the ALJ has failed to articulate specific and legitimate reasons

3

supported by substantial evidence of record to reject Dr. Bupp’s September 2010 opinion and

4

Defendant’s reliance on examining psychologist Dr. Armstrong’s 2009 opinion does not alter

5

this conclusion. Defendant argues that the ALJ properly favored Dr. Armstrong’s opinion

6

over Dr. Bupp’s. Upon examination on June 1, 2009, Dr. Armstrong found that Plaintiff’s

7

“answers to question based on the seven DSM-IV criteria for mania suggest that she meets

8

or has recently met all or almost all of these criteria. She does have persistently elevated,

9

expansive, or irritable moods, lasting 1 week or any duration if hospitalized....” (AR. 315).

10

He found it doubtful that Plaintiff met the full criteria for PTSD: “Specifically, I doubt that

11

she meets Criteria F – ‘The disturbance causes clinically significant distress or impairment

12

in social, occupational, or other important areas of functioning.” (Id.). Dr. Armstrong’s

13

diagnostic impression was Bipolar I Disorder; OCD now more or less in remission with

14

medication; “Victim of sexual abuse, allegedly”; and Anxiety Disorder NOS. (AR. 317). He

15

noted that Plaintiff would be capable of managing benefits, “but perhaps only marginally.”

16

(AR. 318). Dr. Armstrong opined that Plaintiff’s sustained concentration and persistence,

17

social interaction, and adaptation were within normal limits “today” but were “subject to

18

bipolar interference.” (AR. 317-18). Dr. Armstrong does not define or further discuss what

19

he means by “subject to bipolar interference” or how often such interference might be

20

expected to occur. The frequency of such interference may well impact the ability to sustain

21

full time employment, especially given Dr. Armstrong’s statement that Plaintiff experiences

22

“persistently elevated, expansive, or irritable moods...” lasting up to one week, which met

23

DSM-IV criteria for mania. (AR. 315).

24

Defendant contends that “the ALJ assessed a residual functional capacity that was in

25

line with the record as a whole when he limited Plaintiff to attending and concentrating for

26

two hour periods, simple tasks that did not need to be performed in a fast-paced environment

27

and involved only simple work-related decisions, and occasional interaction with supervisors

28

and co-workers and incidental contact with the public.” (Defendant’s Brief, p. 18). There
- 16 -

1

is simply no basis on this record for the ALJ to conclude that the limitations he assessed were

2

consistent with functioning “subject to bipolar interference.” Moreover, because the ALJ

3

has failed to state specific and legitimate reasons to reject Dr. Bupp’s opinion, there is no

4

basis to believe that although Dr. Armstrong found that Plaintiff presented with the ability

5

to function within normal limits on the one day he examined her, such finding could

6

undermine Dr. Bupp’s opinion based upon his multiple contacts with Plaintiff and her years

7

of treatment at CODAC. Arguably, Dr. Armstrong’s acknowledgment that Plaintiff

8

experienced “bipolar interference” could suggest limitations in line with Dr. Bupp.

9

Regardless, the substantial evidence of record simply does not support the ALJ’s rejection

10

of Dr. Bupp’s opinion, nor does it support the ALJ’s RFC assessment.

11

REMAND FOR AN IMMEDIATE AWARD OF BENEFITS

12

It is well-settled that “[w]here the Commissioner fails to provide adequate reasons for

13

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

14

of law.” Lester, 81 F.3d at 834 (citation omitted); Hammock v. Bowen, 879 F.2d 498 (9th

15

Cir. 1989) (applying credit-as-true rule to medical opinion evidence). See also Garrison, __

16

F.3d. __, 2014 WL 3397281, *19-*22 (9th Cir. July 14, 2014) (reaffirming the credit-as-true

17

rule).

18

Defendant argues that the credit-as-true rule is not authorized under the Social

19

Security Act. (Defendant’s Brief, p. 19 n.11). However, in applying the credit-as-true rule,

20

the Ninth Circuit recently pointed out that “[t]he Social Security Act...makes clear that courts

21

are empowered to affirm, modify, or reverse a decision ‘with or without remanding the cause

22

for a rehearing.’ 42 U.S.C. §405(g)....Accordingly, every Court of appeals has recognized

23

that in appropriate circumstances courts are free to reverse and remand a determination by

24

the Commissioner with instructions to calculate and award benefits.” Garrison, __ F.3d. __,

25

2014 WL 3397218, at *19 (emphasis in original) (citations omitted). The Garrison court

26

went on to state that in appropriate circumstances, the court is empowered to apply the credit-

27

as-true rule and remand the matter with instructions to calculate and award benefits. Id. at

28

*20 (providing history and rationale supporting remand for award of benefits where evidence
- 17 -

1

is credited as true).

2

“Remand for further administrative proceedings is appropriate if enhancement of the

3

record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593, (9th Cir. 2004) (citing

4

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of

5

benefits is appropriate where:

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, __ F.3d __, 2014 WL 3397218 at *20 (footnote and citations omitted); see also

10

Benecke, 379 F.3d at 593(citations omitted). The Garrison court also noted that the third

11

factor “naturally incorporates what we have sometimes described as a distinct requirement

12

of the credit-as-true rule, namely that there are no outstanding issues that must be resolved

13

before a determination of disability can be made.” Id. at *20 n. 26 (citing Smolen v. Chater,

14

80 F.3d 1273, 1292 (1996)). Thus, where the test is met, the Ninth Circuit“take[s] the

15

relevant testimony to be established as true and remand[s] for an award of benefits[,]"

16

Benecke, 379 F.3d at 593 (citations omitted), unless “the record as a whole creates serious

17

doubt as to whether the claimant is, in fact, disabled with the meaning of the Social Security

18

Act.”

6
7

Garrison, __ F.3d. __, 2014 WL 3397218 at *21 (citations omitted).

19

Here, remand for an immediate award of benefits is appropriate. The record has been

20

fully developed and remand for further administrative proceedings would serve no useful

21

purpose. The VE testified that “there wouldn’t be any jobs” for a person with Plaintiff’s

22

education and background who was subject to the marked11 limitations identified by Dr.

23
24
25
26
27
28

11

Defendant “note[s] that ‘moderate’ and ‘marked’ limitations are not appropriate for
inclusion in the residual functional capacity assessment (or any underlying hypothetical
question proffered to the vocational expert)...because they ‘do not describe function and do
not usefully convey the extent of capacity limitations.’” (Defendant’s Brief, p. 13 n.9 (citing
Programs Operations Manual System, DI 24510.065.B1, 2001 WL 1933372)). At the
hearing when Plaintiff’s counsel posed his hypothetical question using the term “markedly
limited”, the ALJ clarified with the VE whether “the term markedly limited had any
- 18 -

1

Bupp. (Id. at p. 77). See e.g. Garrison, __ F.3d __, 2014 WL 3397218 at *22 n. 28 (where

2

the VE answered that a person with the plaintiff’s residual functional capacity (“RFC”)

3

would be unable to work, “we can conclude that [the plaintiff] is disabled without remanding

4

for further proceedings to determine anew her RFC.”). On this record, crediting Dr. Bupp’s

5

opinion as true results in the unquestionable conclusion that Plaintiff is disabled under the

6

Act.

7

Nor, considering the record as a whole, is there reason for serious doubt as to whether

8

Plaintiff is disabled. For example, the ALJ’s finding that Plaintiff was not fully credible does

9

not cast any serious doubt on the record as whole as to whether Plaintiff is disabled. The

10

ALJ stated that although Plaintiff claimed she suffered from migraines on a frequent basis,

11

she rarely complained of migraines to her primary care physician, Dr. Bhat, and she never

12

complained about migraines during treatment sessions at CODAC. (AR. 33). There is no

13

dispute that Plaintiff was treated for migraines at the Center for Neurosciences, primarily by

14

Nurse Practitioner Amy Tees who prescribed various medications and herbal remedies.

15

Although the ALJ takes issue that Plaintiff “rarely” mentioned migraines to Dr. Bhat, the

16

record is clear that Plaintiff sought referral from Dr. Bhat to Nurse Practitioner Tees for

17

treatment of migraines. (See e.g. AR. 439). Moreover, Plaintiff also informed CODAC

18

providers that she suffered from migraines. (See e.g., AR. 392, 393, 403, 590). On at least

19

one occasion, she missed a CODAC appointment because she was suffering from a migraine.

20

(AR. 403). Another CODAC note states: “more migraines–given gabapentin.” (AR. 590).

21

This is not a case where the Plaintiff can be disbelieved because she did not report a problem

22

or seek treatment for same.

23

The ALJ also noted that examining Dr. Armstrong, who conducted a psychological

24
25
26
27
28

vocationally relevant meaning to [her].” (AR. 76). The VE testified that the form in which
Dr. Bupp identified Plaintiff’s limitations “says what markedly limited is, meaning they’re
unable to perform the activity at all, or unable to preform it 50 percent of the time. So it does
define it.” (Id.). On the instant record, use of the term “markedly limited” does not
invalidate the question posed or the VE’s response.
- 19 -

1

evaluation, commented that Plaintiff did not complain of pain or appear to be in pain during

2

examination. (AR. 33; see also AR. 312). Such finding has no significance to Plaintiff’s

3

credibility given that she did not allege she was experiencing a migraine or other symptoms

4

during the examination.

5

With regard to Plaintiff’s mental impairments, the ALJ appeared to rely on GAF

6

scores to cast doubt upon Plaintiff’s credibility. The Court has already discussed the

7

significance of GAF scores in the context of Dr. Bupp’s opinion. On this record, the GAF

8

scores and contemporary medical records do not undercut Plaintiff’s credibility. The ALJ

9

also cited Plaintiff’s statement that “she has no deficits in housework and denied any manic

10

spending sprees. She stated she had no cognitive trouble with her personal hygiene, but

11

sometimes forgets when she is manic.” (AR. 34). Plaintiff has stated that it takes her longer

12

to complete household chores “due to her manic or depressed state.” (AR. 31). As discussed

13

supra, the ability to see to personal hygiene or engage in household chores is not necessarily

14

inconsistent with a finding of disability. The substantial evidence of record does not

15

establish or remotely suggest that Plaintiff has engaged in activities on a sustained basis that

16

involve the performance of functions that are transferrable to a work setting.

17

In sum, when considering the record as a whole, there is no reason for serious doubt

18

as to whether Plaintiff is disabled. Plaintiff’s treating psychiatrist opined that Plaintiff was

19

markedly limited in several areas. The ALJ failed to set forth specific and legitimate reasons

20

supported by substantial evidence for rejecting that opinion. When a hypothetical question

21

was posed to the VE incorporating the marked limitations found by Dr. Bupp, the VE

22

testified that such limitations would preclude Plaintiff from working. Plaintiff is, therefore,

23

entitled to benefits.

24

CONCLUSION

25

The record is fully developed. The ALJ erroneously rejected treating Dr. Bupp’s

26

September 2010 opinion. The VE testified that a person with Plaintiff’s background subject

27

to the marked limitations imposed by Dr. Bupp would not be able to work. On the instant

28
- 20 -

1
2
3
4
5
6

record, there is no serious doubt about whether Plaintiff is disabled.12 Accordingly,
IT IS ORDERED that this action is REMANDED to the Commissioner for immediate
calculation and award of benefits.
The Clerk of Court is DIRECTED to enter Judgment accordingly and to close its file
in this matter.
DATED this 12th day of September, 2014.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
12

26
27
28

Because Plaintiff has established that she is disabled under the Act in light of the
ALJ’s erroneous rejection of Dr. Bupp’s opinion, there is no need to address Plaintiff’s
alternative argument that the ALJ improperly rejected nurse practitioner Tees’ opinion
regarding Plaintiff’s migraines.
- 21 -