Thompson v. Colvin

Filing 30

ORDER granting 28 Motion to Remand to Social Security Administration. It is ORDERED that this case is remanded to the ALJ for a new hearing and further proceedings. The Clerk of Court should enter judgment and close this case. Signed by Magistrate Judge D Thomas Ferraro on 9/29/15. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stephen Thompson, Jr.

No. CV-14-2375-TUC-DTF

Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Plaintiff Stephen Thompson, Jr., brought this action pursuant to 42 U.S.C.

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§§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the

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Commissioner of Social Security (Commissioner). Plaintiff filed his opening brief. (Doc.

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18.) In response, the Commissioner moved to remand the case to the ALJ. (Doc. 28.)

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Plaintiff opposes a remand for further proceedings because he contends he is entitled to

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an immediate award of benefits. (Doc. 29.) The parties have consented to Magistrate

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Judge jurisdiction. (Doc. 13.) Based on the pleadings and the administrative record

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submitted to the Court, this matter is remanded for further proceedings.

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PROCEDURAL HISTORY

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Thompson filed an application for Disability Insurance Benefits (DIB) on June 16,

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2010, and Supplemental Security Income (SSI) on July 16, 2010. (Administrative Record

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(AR) 354, 361.) He alleged disability from October 4, 2009. (AR 354, 361.) Thompson’s

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application was denied upon initial review (AR 114-49) and on reconsideration (AR 150-

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93). A hearing was held on July 17, 2012, at which Thompson and vocational expert John

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Kilcher testified. (AR 38-81.) On November 27, 2012, the ALJ held a second hearing.
(AR 84.) Thompson testified a second time and vocational expert Kathleen McAlpine
testified. (AR 84-113.) Subsequently, the ALJ found that Thompson was not disabled
(AR 23-31). The Appeals Council denied Thompson’s request to review the ALJ’s
decision. (AR 1-3.)
FACTUAL HISTORY
Thompson was born on October 9, 1958, making him 51 years of age at the time
he applied for disability. (AR 354.) Thompson had a long history working as a registered
nurse and he taught seminars for a catheter manufacturer. (AR 85, 382.) In early 2008,
Thompson began abusing opiates that he obtained at the hospital where he worked
(something he also had done during prior periods of his life). (AR 506.) In August 2009,
after being confronted at work about his behavior, he attempted suicide. (AR 506, 513.)
In early October 2009, Thompson attempted suicide a second time. (AR 513-14.)
The ALJ found Plaintiff had several severe impairments: history of a left rotator
cuff tear, improved; diabetes mellitus, type II; diabetic neuropathy, lower extremity,
sensory; history of sleep apnea, improved with weight loss; drug overdose induced
bilateral sensorineural hearing loss; and polysubstance addiction disorder. (AR 23.) The
ALJ concluded that, considering Plaintiff’s substance use disorder, he met a listing and
was disabled at Step Three. (AR 23.) However, the ALJ concluded that if Thompson
stopped the substance use, he could perform other work available in the national
economy and was not disabled at Step Five. (AR 27, 30.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and
DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S.
458, 460-462 (1983). To establish disability the claimant bears the burden of showing he
(1) is not working; (2) has a severe physical or mental impairment; and (3) the
impairment meets or equals the requirements of a listed impairment; or (4) claimant’s

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RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the
claimant has the RFC to perform other work that exists in substantial numbers in the
national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the
Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point
in the five-step process, she does not proceed to the next step. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
of the Commissioner are meant to be conclusive if supported by substantial evidence. 42
U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to
deny benefits only “when the ALJ’s findings are based on legal error or are not supported
by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,
1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must
resolve conflicts in the evidence, and if the evidence can support either outcome, the
court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019
(quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision,
however, “cannot be affirmed simply by isolating a specific quantum of supporting
evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence
that supports as well as detracts from the Commissioner’s conclusion. Day v.
Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).

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DISCUSSION
Thompson alleges the ALJ erred in giving the greatest weight to Dr. Onate, which
caused the ALJ to err in determining which of Thompson’s impairments were severe at
Step Two and in finding that Thompson had a substance addiction disorder that met the
listings at Step Three. Thompson also alleges the ALJ erred at Step Five in concluding
there were other jobs in the national economy that he could perform.
The Commissioner requests a remand because the ALJ failed to address the
medical source opinions of the State Agency doctors (Drs. Estes, Penner and Dodson)
and Dr. Karin Ahlstrand (neuropsychologist). Plaintiff asks instead for an immediate
award of benefits arguing that he is so entitled based on the credit as true rule. In light of
conceded error by Defendant, this case will be remanded. The question is whether
Plaintiff is entitled to an award of benefits with no further proceedings.
In an effort to expeditiously answer that question, the Court first evaluates the
possible application of the credit as true rule in this case. The Ninth Circuit has held that
a district court should credit as true evidence that was improperly rejected by the ALJ and
remand for benefits if:

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(1) the ALJ failed to provide legally sufficient reasons for rejecting the
testimony; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record
that the ALJ would be required to find the claimant disabled were such
evidence credited.

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Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); see Garrison v. Colvin, 759 F.3d
995, 1019-20 (9th Cir. 2014). The Court concludes credit as true is not warranted in this
case because there are outstanding issues that must be resolved before a disability
decision can be reached.
The medical opinions that the ALJ failed to consider and those that Thompson
alleges the ALJ erroneously discounted are not consistent. For example Drs. Estes and
Penner (non-examining physicians) concluded Thompson had some moderate limitations
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but could perform unskilled work. (AR 129, 168-69.) Dr. Rau (examining physician)
found moderate limitations in sustained concentration and persistence but did not opine
that Thompson could not work. (AR 1357.) In contrast, Dr. Ahlstrand (examining
physician) concluded Thompson could not return to nursing and cognitive impairments
would interfere with his work abilities. (AR 607.) And, Dr. Sora (examining physician)
and Nurse Practitioner Hess (an “other” treating medical source) both offered the opinion
that Thompson could not work due to cognitive and emotional impairments. (AR 1466,
1495, 1638.) It is for the ALJ to resolve such conflicts in medical testimony. Andrews, 53
F.3d at 1039.
The Court also finds that this matter needs to be remanded in light of the ALJ’s
treatment of Thompson’s substance abuse. The ALJ conducted a substance abuse
disorder analysis without citing any record evidence that Thompson had abused alcohol
or drugs since his alleged disability onset date. The ALJ discounted Thompson’s
credibility and found that his reporting regarding his drug abuse was inconsistent. (AR
24.) While that finding is well-supported as to Thompson’s historic abuse of substances,
the ALJ cites no evidence of current drug use only evidence of drug cravings.1 (AR 25.)
There is no question that Thompson had an addiction at the time of onset and he was just
beginning remission; however, neither the ALJ nor either party cited any evidence of
substance abuse after Thompson’s October 2009 second suicide attempt. Although the
ALJ relies upon Dr. Onate’s diagnosis of an opioid dependence (active) in October 2010,
the doctor documented without question Thompson’s report that he had been “clean” for
a year. (AR 1488, 1490.) No other medical source diagnosed Thompson as having an
active substance abuse disorder after the onset date.
The ALJ determined Thompson would be disabled at Step Three while using
substances but would not be disabled if he stopped the use of substances. There is little

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The ALJ stated Thompson engaged in drug-seeking behavior, but the ALJ
cited no record evidence for that finding. (AR 25.) Regardless, unsuccessful drug seeking
does not equate to drug use.
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record evidence to support this distinction. A finding at Step Three for Substance
Addiction Disorders requires an initial finding of behavioral or physical changes
associated with “the regular use of substances.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
12.09. The ALJ did not make this finding. In evaluating the paragraph B criteria, the ALJ
found marked limitations in social functioning and in concentration, persistence or pace.
(AR 24.) In support, the ALJ relied primarily upon family reports from August 2010 and
June 2012 (AR 394, 437-442), as well as Dr. Rau’s March 2011 exam (AR 1350).2
Although there is no evidence Thompson was abusing substances in 2010, 2011, or 2012,
the ALJ concluded that if Thompson stopped substance abuse he would have only a mild
difficulty in social functioning and a moderate difficulty in concentration, persistence or
pace. (AR 28.) The ALJ cites no record evidence for this conclusion. (Id.) No medical
sources offered an opinion distinguishing Thompson’s limitations when abusing
substances and when not using substances.3
The Court determines that the ALJ must reconsider his substance abuse analysis in
light of the above identified inconsistencies. This may require the ALJ to obtain
additional medical testimony, which Defendant acknowledged (Doc. 28 at 21). Because
the ALJ’s evaluation regarding Thompson’s substance abuse is a central issue in his
analysis, further proceedings are required before a final determination can be reached.
One matter related to substance abuse is Thompson’s credibility. Thompson did
not in his opening brief challenge the ALJ’s credibility finding. In his reply brief,
however, Thompson argued the ALJ’s credibility finding was tainted by his rejection of
other evidence. The Court agrees that upon remand the ALJ must reconsider his
credibility finding in light of all the evidence and this Order.

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It is worthy of note that later in his opinion, the ALJ stated that he gave
limited weight to the lay witness testimony and the opinion of Dr. Rau. (AR 25.) The
ALJ did not reconcile this inconsistency.
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If, upon remand, the ALJ determines that Thompson has a cognitive
disorder, a major depressive disorder, and/or an anxiety disorder, he will have to
reconsider whether Thompson meets any of the related listings at Step Three.
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The Court recognizes that this case has been ongoing for 5 years and that
Thompson has not contributed to the delay. Review of the record reveals numerous errors
in the ALJ’s decision, some of which Defendant concedes. However, this is not the rare
case where further proceedings would not be useful and the Court can award benefits. See
Treichler v. Comm’r of Social. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014).
After the ALJ considers all of the medical opinions and the other record evidence it
remains to be determined if Thompson has other severe impairments at Step Two; what,
if any, listings Thompson meets at Step Three; whether Thompson had an active
substance abuse disorder during the relevant time; and his RFC. Therefore, Thompson is
not entitled to a remand for the award of benefits based on the current record.
For guidance upon remand, the Court turns to the other issues Thompson raised.
Dr. Ahlstrand and Agency Non-Examining Physicians
The ALJ failed to consider with explanation the opinions of Dr. Ahlstrand, Dr.
Estes, Dr. Penner, and Dr. Dodson. This was error, as conceded by Defendant. See SSR
96-8p (requiring the ALJ’s RFC to consider and address all medical source opinions).
Dr. Onate
The ALJ gave great weight to the October and November 2010 treatment notes of
Dr. Onate, finding his findings well-reasoned and supported by prior evaluations. (AR
25.) One of the prior exams was conducted by Dr. Ahlstrand. Her December 2009
diagnoses for Thompson, cognitive disorder NOS, major depressive disorder (recurrent,
severe) and opioid dependence (early full remission) (AR 606), are not in accord with Dr.
Onate’s singular diagnosis of opioid dependence (active) (AR 1486). Similarly, NP Hess
diagnosed Thompson, in November 2009, with major depressive disorder (recurrent) and
opiate abuse (currently clean) and, in November 2010, with a mood disorder. (AR 1138,
1154.) Other than in the period immediately following Thompson’s October 2009 second
suicide attempt, no other physician diagnosed Thompson with an active opioid
dependence. (AR 1355 (Dr. Rau diagnosed cognitive disorder NOS, major depressive

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disorder mild without psychosis), AR 122-23, 183 (Drs. Estes and Penner diagnosed
organic brain syndrome, affective disorders, anxiety-related disorders), AR 1637 (Dr.
Sora diagnosed major depression recurrent severe without psychotic features, cognitive
disorder NOS, opiate dependence in early remission). Therefore, Dr. Onate’s singular
diagnosis was not well supported by other providers.
The ALJ relied upon the fact that Dr. Onate found Thompson exhibited no signs of
depression or anxiety and his mental status was essentially normal (no cognitive
difficulty, memory intact, and normal attention span). (AR 25, 1486, 1490.) Dr. Onate’s
findings were not supported by the findings of other providers, nor did he opine on
Thompson’s working abilities as did other physicians. Dr. Ahlstrand’s testing revealed
compromised memory and visuospatial perception, and she found elevated levels of
depression and anxiety (AR 606); from November 2009 to May 2012, NP Hess
repeatedly found Thompson had symptoms of anxiety and depression (AR 1137, 1140,
1142, 1146, 1150, 1153, 1154, 1450, 1454, 1456, 1469, 1492, 1494); Dr. Rau found
“some inefficiency with his working memory and processing speed and with nonverbal
reasoning,” and concluded Thompson would have days when it would be difficult to stay
focused and he would get off task (AR 1355, 1357); Dr. Sora found Thompson had a
marked cognitive decline, presented as more than mildly depressed, and experienced
significant impairments in immediate and short term memory as well as in executive
functioning (AR 1637-1638). Also, Dr. Onate prescribed Thompson medication for
depression, which is inconsistent with his finding that Thompson was not experiencing
symptoms of depression. (AR 1486, 1490.)
Additionally, the ALJ assigned Dr. Onate the greatest weight but without
explanation he made findings that contradicted Dr. Onate’s records. The ALJ concluded
that, while using substances (as Dr. Onate’s diagnosis indicates Thompson was doing),
Thompson met the listing criteria for an affective disorder because he had a medically
documented depressive syndrome with “anhedonia, sleep disturbance, decreased energy,

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difficulty concentrating, and thoughts of suicide,” and an anxiety related disorder
evidenced by recurrent and severe panic attacks (AR 23). See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, 12.04, 12.06. Dr. Onate did not make findings that support this conclusion.
The ALJ must reconsider Dr. Onate’s opinion on remand in light of this Order,
with particular focus on the medical sources the ALJ failed to address.
Step Two
At Step Two, the ALJ did not find major depressive disorder or a cognitive
disorder to be a serious impairment. It appears the ALJ never reached the question of
severity; rather, he concluded Thompson did not have a medically determinable
impairment of major depressive disorder or cognitive disorder. As discussed above, Dr.
Onate stood as the lone medical opinion that Thompson did not have a depressive
disorder and/or a cognitive disorder. Additionally, at the first of two appointments, Dr.
Onate diagnosed Thompson with major depressive disorder, unipolar, severe, chronic,
recurrent, without psychosis. (AR 516.) The ALJ must reconsider Step Two taking
account of all the medical opinions of record.
Dr. Rau
The ALJ stated that he gave limited weight to the opinion of Dr. Rau because he
had not had the opportunity to review the treatment notes of Dr. Onate. (AR 25.) In fact,
Dr. Rau stated that he had reviewed “psychologic and medical notes,” covering the
period December 2009 to January 2011. (AR 1350, 1353.) Thompson saw Dr. Onate in
October and November 2010, and Dr. Rau did not specify which records he reviewed.
Thus, there is not substantial evidence in the record to support the ALJ’s finding that Dr.
Rau did not see the records from Dr. Onate; rather, it is unknown whether he reviewed
those records.
The ALJ focused primarily on the fact that Dr. Rau’s March 24, 2011 exam
occurred shortly after Thompson experienced an extremely debilitating hospitalization
(January 26 to February 15, 2011). (AR 25.) The ALJ relied upon the fact that Dr. Onate

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did not find concentration limitations in November 2010, and NP Hess found only mild
difficulties in social and occupational functioning (as evidenced by a GAF of 65) in May
2011. Therefore, the ALJ concluded that Dr. Rau’s findings were limited to Thompson’s
abilities on the date of the exam. (AR 25, 26-27.) The Court has instructed the ALJ to
reconsider his reliance upon the opinion of Dr. Onate. Further, by August 2011, six
months after the hospitalization, NP Hess found Thompson had a GAF of 40-50. (AR
1459.) The GAF score of 65 in May 2011, does not reflect the variability in this score in
the months before and after that date. (AR 1450 (July 2010, GAF 50), AR 1453 (October
2010, GAF 65), AR 1454 (November 2010, GAF 55), AR 1456 (March 2011, GAF 50).)
In light of the numerous errors identified in this Order, particularly the ALJ’s
failure to address several medical opinions, Dr. Rau’s opinion should be reconsidered
upon remand. Further, Thompson requested a subpoena for Dr. Rau, which the ALJ
denied. (Doc. 20 n.1.) After his exam, Dr. Rau opined that Thompson would experience
“days when he will have difficulty staying focused due to variability downward with his
processing speed and due to getting off of task at times due to dysphoria or depression or
frustration.” (AR 1357.) Thompson’s counsel sought to ask the vocational expert whether
this limitation would prevent a person from working, but the ALJ disallowed the inquiry
as too imprecise. (AR 97-99.) This ambiguity in Dr. Rau’s opinion is precisely the reason
counsel sought additional testimony from him. In reconsidering Dr. Rau’s opinions, the
ALJ should consider obtaining the additional testimony Thompson seeks from Dr. Rau.
Dr. Sora
The ALJ discounted the opinion of Dr. Sora for two reasons. He found it was a
one-time examination for purposes of litigation. (AR 26.) Defendant concedes this is not
a proper basis for discounting a physician’s opinion. See Lester v. Chater, 81 F.3d 821,
832 (9th Cir. 1995). Defendant tries to recast the ALJ’s reasoning as an in artful way of
noting Dr. Sora’s lack of treating relationship with Thompson. If the ALJ intended to rely

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upon the relationship between Dr. Sora and Thompson, he could easily have done so.
Instead, he relied on the purpose of the exam, which was improper.
The ALJ also found that Dr. Sora’s opinion did not undermine the findings of Dr.
Onate (a substance addiction specialist). (AR 26.) Contrary to Dr. Sora’s opinion, Dr.
Onate did not make any findings about Thompson’s ability to work. The ALJ should
reconsider Dr. Sora’s opinion in light of this Order and the entirety of the record upon
remand.
Nurse Practitioner Hess
Nurse Practitioner Hess opined that Thompson had impairments in memory,
concentration/persistence, social interaction and adaptation to change. (AR 1466.) For
support, she referred to the evaluation by Dr. Ahlstrand. (Id.) She later opined that
Thompson was disabled and unlikely to return to work. (AR 1495.) Because the opinion
of a nurse practitioner is not entitled to the deference given the opinion of an acceptable
medical source, 20 C.F.R. §§ 404.1513(a) & (d), to discount her testimony as an “other”
medical source an ALJ need provide only germane reasons. Molina v. Astrue, 674 F.3d
1104, 1111 (9th Cir. 2012) (contrasting the requirement that a treating physician’s
opinion can be rejected only with specific, legitimate reasons). An ALJ is allowed to give
additional weight to a medical doctor that is an acceptable medical source. Johnson v.
Astrue, 303 F. App’x 543, 545 (9th Cir. 2008).
The ALJ stated that he gave limited weight to NP Hess’s opinion because she
attempted to transfer care to an opiate detox specialist, noted Thompson’s cravings were
increasing as of November 2010, and her treatment did not change his opioid dependence
diagnosis nor treat it. (AR 25-26.) The ALJ’s justifications regarding the weight he
assigned to NP Hess’s opinions are merely observations but provide no basis for
discounting her opinion. The ALJ must reconsider the opinion of NP Hess in light of this
Order, particularly the discussion regarding substance abuse, and the entire record on
remand.

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Lay Witnesses
The ALJ gave limited weight to the statements from Thompson’s mother, father,
wife, and aunt because they assumed Thompson’s limitations arose from brain damage
and mental health disorders, but they were unaware of his current polysubstance abuse.
(AR 25.) In support of his finding, the ALJ cites a record from August 2009, in which
Thompson reported that his wife was not aware of his current drug use. (AR 506.) The
ALJ extrapolated with no record support that, therefore, his other family members were
“presumably” also not aware of his drug use. (AR 25.) More importantly, there is no
evidence in the record that, after October 2009, Thompson was abusing any substances.
In his July 2012 testimony, Thompson stated that he had verbal contracts with his wife
and parents about not abusing the narcotics he was prescribed for neuropathic pain; thus,
they had knowledge of his problem with drug addiction. There is no record support for
the ALJ’s rejection of the lay witness testimony on the basis that the witnesses misattributed Thompson’s limitations to something other than substance use. Because the
ALJ rejected this testimony without providing a germane reason, he erred. Stout v.
Comm’r Soc. Sec. Admin. 454 F.3d 1050, 1056 (9th Cir. 2006).
Accordingly,
IT IS ORDERED that this case is remanded to the ALJ for a new hearing and
further proceedings, pursuant to sentence four of 42 U.S.C. ' 405(g). The Clerk of Court
should enter judgment and close this case.
Dated this 29th day of September, 2015.

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