Ford v. Astrue

Filing 20

MEMORANDUM DECISION AND ORDER granting and remanding 1 Petition for Review filed by Lynette M Ford. This action shall be remanded to the Commissioner for further proceedings consistent with this opinion. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LYNETTE M. FORD,
Case No. 1:10-CV-349-MHW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Lynette M.
Ford’s (“Petitioner”) Petition for Review (Dkt. 1) of the Respondent’s denial of social
security benefits, filed July 9, 2010. The Court has reviewed the Petition for Review and
the Answer, the parties’ memorandums, the administrative record (AR) and for the
reasons that follow, will remand the matter to the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on September 15, 2006, alleging disability due to depression,

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posttraumatic stress disorder (PTSD), anxiety attacks and headaches. Petitioner’s
application was denied initially and on reconsideration, and a request for a hearing was
timely filed.
Administrative Law Judge (ALJ) Lloyd E. Hartford held a hearing on April 30,
2008, taking testimony from Petitioner who was represented by her attorney; vocational
expert Karen Black; medical expert Marian Martin; and witness Robert Engle. (AR 47138.) ALJ Hartford issued a decision finding Petitioner not disabled on July 21, 2008.
(AR 24-33.)
Petitioner filed a timely appeal to the Appeals Council which denied her request
for review, making the ALJ’s decision the final decision of the Commissioner. (AR 1-4.)
Petitioner appealed this final decision to this Court. The Court has jurisdiction to review
the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 42 years old. She has a bachelor’s
degree in wildlife resources and her past work includes activity assistant, housekeeper,
inspector, mower, pharmacy technician, research assistant, veterinary receptionist, and
wildlife intern.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantially gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since December 22, 2005,
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her alleged onset date. At step two, it must be determined whether claimant suffers from
a severe impairment. The ALJ found Petitioner had the following “severe” impairments
within the meaning of the Regulations: major depressive disorder, recurrent, severe,
without psychotic features; and post-traumatic stress disorder. Step three asks whether a
claimant’s impairments meet or equal a listed impairment. The ALJ found that
Petitioner’s impairments did not meet or equal the criteria for the listed impairments. If a
claimant’s impairments do not meet or equal a listing, the Commissioner must assess the
residual functional capacity (RFC) and determine at step four whether the claimant has
demonstrated an inability to perform past relevant work. The ALJ found Petitioner was
able to perform her past relevant work as an Activities Assistant. If a claimant
demonstrates an inability to perform past relevant work, the burden shifts to the
Commissioner to demonstrate at step five that the claimant retains the capacity to make
an adjustment to other work that exists in significant levels in the national economy, after
considering the claimant’s residual functional capacity, age, education and work
experience. Having found Petitioner not disabled at step four, the ALJ did not proceed to
step five.
STANDARD OF REVIEW
The Petitioner bears the burden of showing that disability benefits are proper
because of the inability “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
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423(d)(1)(A); See 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th
Cir. 1971). An individual will be determined to be disabled only if his physical or mental
impairments are of such severity that he not only cannot do his previous work but is
unable, considering his age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Social Security
Commissioner if the decision is supported by substantial evidence and is not the product
of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd.,
340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended);
DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than
a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist which supports the
petitioner’s claims. 42 U.S.C. § 405(g); Flaten v. Sec'y of Health and Human Servs., 44
F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be conclusive. Id. It is well-settled that if there
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is substantial evidence to support the decision of the Commissioner, the decision must be
upheld even when the evidence can reasonably support either affirming or reversing the
Commissioner’s decision, because the Court “may not substitute [its] judgment for that of
the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
In reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ
makes a careful consideration of subjective complaints but provides adequate reasons for
rejecting them, the ALJ’s well-settled role as the judge of credibility will be upheld as
based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).
DISCUSSION
Petitioner raises three challenges to the ALJ’s finding that she is not disabled. She
first contends that the ALJ failed to conduct proper credibility determinations and also
failed to properly weigh the medical source opinions. Petitioner also contends she is
disabled under Medical Listing 12.04 and/or 12.06.
1.

Credibility Determinations
A.

Petitioner

Petitioner contends that the ALJ improperly rejected her testimony by failing to
provide “clear and convincing reasons” and also improperly rejected the testimony of lay
witness Robert Engle, Petitioner’s friend.
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The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). The ALJ’s findings must be supported by specific, cogent reasons. Id. If a
claimant produces objective medical evidence of an underlying impairment, an ALJ may
not reject a claimant’s subjective complaints of pain based solely on lack of medical
evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Unless there is
affirmative evidence of malingering, the ALJ must provide clear and convincing reasons
for rejecting pain testimony. Id. An ALJ is required to consider a claimant’s testimony
regarding subjective symptoms such as pain or depression. 20 C.F.R. §§ 404.1529;
416.929; Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996).
The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166
F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support
the ALJ’s credibility finding, the Court will not engage in second-guessing. Thomas v.
Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either
outcome, the Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including consideration of claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct, as
well as claimant’s daily activities, claimant’s work record and testimony from physicians
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and third parties concerning the nature, severity and effect of the symptoms of which
claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also,
the ALJ may consider: location, duration and frequency of symptoms; factors that
precipitate and aggravate those symptoms; amount and side effects of medications; and
treatment measures taken by claimant to alleviate those symptoms. See Soc. Sec. Ruling
(SSR) 96-7p.
The ALJ states that he finds “that the claimant’s medically determinable
impairments could reasonably be expected to produce the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment . . .” (AR 29.) The ALJ notes that the signs and symptoms
of high vigilance, paranoia and panic attacks are more often reflected in Petitioner’s own
self-reported complaints and are less often a part of clinical observations. Id. He also
notes that a review of the records fails to support any significant limitations in the
claimant’s activities of daily living and claimant has made numerous efforts to walk her
dog, start going to church and to try driving her car again. Id. However, the ALJ later
states that “the claimant’s ability to carry on certain daily activities, such as walking her
dog and some limited driving, does not in any way detract from her credibility.” Id. The
ALJ also finds because the records reflects that treatment was not directed at the
symptoms of obsessive thoughts, poor concentration, and increased irritability and anger,
this suggests that these symptoms are not as intense, persistent, or as limiting as claimant
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alleges. (AR 30.)
The ALJ has not provided clear and convincing reasons for rejecting Petitioner’s
credibility. An ALJ may not reject a claimant’s subjective complaints based solely on
lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Here,
the ALJ states that he finds Petitioner to not be fully credible because the symptoms she
complains of are self-reported and not supported by clinical observations. However, the
nature of mental illness is that it is not easily subject to the same type of clinical and
objective findings as physical impairments. See Blankenship v. Bowen, 874 F.2d 1116,
1121 (6th Cir. 1989) (“ . . . mental disorders cannot be ascertained and verified as are
most physical illnesses . . .”). The record shows that Petitioner consistently sought
treatment for her mental illnesses. Petitioner has been diagnosed with depression and
PTSD, and she has been treated by various mental health professionals and prescribed
several different medications over the course of many years. References to her
depression go back to at least 1989 in the medical records. (AR 404.) With regard to the
ALJ’s concern that her symptoms are self-reported, Petitioner’s treatment providers are
not able to personally observe how she functions in the world on a daily basis, they are
only able to observe her during their sessions and listen to her descriptions of her
symptoms and functioning. An ALJ cannot reject a claimant’s complaints solely on the
basis of lack of medical evidence. See Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996).
While the ALJ states that Petitioner’s activities of daily living do not detract from
her credibility, however, they are discussed and the Court will point out that the activities
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that the ALJ refers to all involve Petitioner’s efforts to interact with society. Petitioner
cannot be penalized for her “efforts” and for making “some progress.” See Vertigan v.
Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“. . . one does not need to be utterly
incapacitated in order to be disabled”); Smith v. Califano, 637 F.2d 968, 971 (3rd Cir.
1981) (“Disability does not mean that a claimant must vegetate in a dark room excluded
from all forms of human and social activity.”)
Further, in line with Vertigan v. Halter, the ALJ’s note that Petitioner had not
decompensated or been hospitalized is not a valid reason for rejecting her testimony.
Petitioner is not required to be “utterly incapacitated” in order to be found disabled.
Other than noting that some of Petitioner’s subjective complaints are not part of
the clinical observations because the treatment notes reflect that certain aspects of her
impairment were not the subject of her counseling sessions, the ALJ fails to identify
inconsistencies in the record, either in the medical record itself or in Petitioner’s
statements, that undermine Petitioner’s credibility.
Although phrased in various ways, the ALJ essentially has found the Petitioner is
not fully credible due to lack of medical evidence. If a claimant produces objective
medical evidence of an underlying impairment, an ALJ may not reject a claimant’s
subjective complaints based solely on lack of medical evidence. Burch v. Barnhart, 400
F.3d 676, 680 (9th Cir. 2005). The Petitioner has provided a copious amount of treatment
records that establish she suffers from depression and PTSD. The ALJ cannot discredit
her solely for lack of clinical observations.
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B.

Lay Witness

The ALJ found that because Petitioner was not fully credible, neither was the
testimony of her friend and roommate, Robert Engle. (AR 31).
An ALJ must consider evidence from sources other than the claimant, including
family members and friends, to show the severity of a claimant’s impairment. 20 C.F.R.
§ 404.1513(d)(4); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). The
ALJ is required to consider competent lay testimony, but in rejecting such evidence, he
must only give reasons for doing so that are “germane to [the] witness.” Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
As the ALJ gave the same weight to Mr. Engle’s testimony as he did to
Petitioner’s and for the same reasons, the Court likewise finds that the ALJ did not make
a proper credibility determination with respect to Mr. Engle.
2.

Treating Physician Opinion
Petitioner argues that the ALJ failed to properly weigh the opinion of both her

treating psychiatrist, Dr. Lanes, and the Social Security Administration’s own medical
expert, Dr. Martin. Petitioner contends that the ALJ failed to give “clear and convincing”
reasons for rejecting the opinion of Dr. Lanes.
Ninth Circuit case law distinguishes among the opinions of three types of
physicians: (1) those who treat the claimant (treating physicians); (2) those who examine
but do not treat the claimant (examining physicians); and (3) those who neither examine
nor treat the claimant (nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830
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(9th Cir. 1995). Generally, more weight is accorded to the opinion of a treating source
than to nontreating physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). In
turn, an examining physician’s opinion is entitled to greater weight than the opinion of a
nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v.
Heckler, 753 F.2d 1450 (9th Cir.1984).
If the treating physician’s opinion is not contradicted by another doctor, it may be
rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396
(9th Cir.1991). If the treating doctor’s opinion is contradicted by another doctor, the
Commissioner may not reject the treating physician’s opinion without providing “specific
and legitimate reasons” supported by substantial evidence in the record for doing so.
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).
An ALJ is not required to accept an opinion of a treating physician if it is
conclusory and not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ is not bound to a physician’s
opinion of a petitioner’s physical condition or the ultimate issue of disability. Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support
the physician’s opinion, the ALJ may reject that opinion. Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in the record that may not support
the physician’s opinion include clinical findings from examinations, conflicting medical
opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. Id.;
Bayliss v. Barnhart, 427 F.3d at 1216; Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003);
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Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).
Reports of treating physicians submitted related to Petitioner’s work-related ability
are persuasive evidence of a claimant’s disability due to pain and her inability to engage
in any form of gainful activity. Gallant v. Heckler, 753 F.3d 1450, 1454 (9th Cir. 1984).
Although the ALJ is not bound by expert medical opinion on the issue of disability, he
must give clear and convincing reasons supported by substantial evidence for rejecting
such an opinion where it is uncontradicted. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005); Gallant, 753 F.2d at 1454 (citing Montijo v. Sec’y of Health & Human Servs.,
729 F.2d 599, 601 (9th Cir. 1984); Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir.
1981)).
However, an ALJ may reject a treating physician’s opinion if it is based “to a large
extent” on a claimant’s self-reports that have been properly discounted as not credible.
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Petitioner’s account of her
activities of daily living is another item that can be considered by the ALJ in determining
what weight to give to a physician’s opinion. See Morgan v. Comm’s of Soc. Sec. Admin.,
169 F.3d 595, 600 (9th Cir. 1999).
The ALJ noted that while Dr. Lanes’ opinion was not contradicted by other
substantial evidence of record, he found that it was not well-supported by his counseling
notes. For that reason, he did not give it controlling weight. The ALJ further provided
that the opinion was given “significant weight” in terms of claimant’s ability to
understand, remember, carry out simple instructions, and to make judgment on simple
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work-related decisions. However, less weight was afforded to Dr. Lanes’ opinion that the
claimant was severely limited in her ability to interact with the public, supervisors and coworkers. (AR 31.) Earlier in his decision, the ALJ discounts the latter part of Dr. Lanes’
opinion because he never “simply stated that the claimant could not function” and instead
stated that she “was now making progress.” (AR 29.) The ALJ also stated that many of
the noted signs and symptoms are claimant’s own self-reported complaints and not part of
objective clinical observations. Id. Several times in his decision, the ALJ mentions that
the bulk of the record that supports marked difficulties consists of the claimant’s selfreported complaints and allegations as opposed to objectively observed signs and
symptoms. (AR 27, 29, 30.)
While the Court recognizes that an ALJ may reject a treating physician’s opinion
when it is based on a claimant’s properly discredited self-reports, here the Court has
found that Petitioner was not properly discredited. While the fact that a physician has
relied on the subjective complaints of a properly discredited plaintiff can, in some
circumstances, be a legitimate basis for disregarding that physician’s opinion, an ALJ
“does not provide clear and convincing reasons for rejecting an examining physician’s
opinion by questioning the credibility of a patient’s complaints where the doctor does not
discredit those complaints and supports his ultimate opinion with his own observations.”
Ryan v. Comm’r, 528 F.3d 1194, 1199-1200 (9th Cir. 2008). See also Morgan v. Apfel,
169 F.3d 595, 602 (9th Cir. 1999) (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.
1989)). Here, Dr. Lanes provided a letter that accompanied his Medical Source Statement
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that explains why he finds Petitioner to be disabled. (AR 542.)
The ALJ admits that Dr. Lanes’ opinion is “not contradicted by other substantial
evidence of record . . .” but continues on that his opinion is “not well-supported by his
laconic counseling records.” Id. The Court finds that the ALJ has not provided clear and
convincing reasons for rejecting Dr. Lanes’ opinion.
Further, the ALJ also improperly “picks and chooses” from Dr. Lanes’ opinion to
support his conclusion. He gives “significant weight” to the portions of Dr. Lanes’
opinion in which he has found no limitations on Petitioner’s ability to perform workrelated tasks but gives “less weight” to the areas in which he has found marked
limitations. (AR 31). An ALJ must consider all relevant evidence in the record and
cannot pick and choose evidence that supports his conclusion. See Gallant v. Heckler,
753 F.2d 1450, 1455-56 (9th Cir. 1984) (ALJ cannot reach a conclusion first and then
attempt to justify it by ignoring competent evidence in the record that suggests an
opposite result). See also Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004);
Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984). A reviewing court must
consider both evidence that supports, and evidence that detracts from, the examiner’s
conclusion. Gallant, 753 F.2d at 1455. The Court remands accordingly.
3.

Medical Listings 12.04 and 12.06
Petitioner submits that she is disabled under Medical Listing 12.04 and/or 12.06.

She contends that the ALJ erred in finding that she did not satisfy the “B” criteria of

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Listings 12.04 and 12.06.1
Petitioner contends that the ALJ erroneously found that she did not have “marked”
limitations despite the fact that both her treating psychiatrist, Dr. Lanes, and the medical
expert, Dr. Martin, testified to marked restrictions.
While the Court has found that the ALJ improperly discredited Petitioner’s
credibility and has not provided clear and convincing reasons for rejecting the opinion of
Dr. Lanes, it does not follow that the Court should find that Petitioner satisfies these
Listings. At step three, Petitioner has the burden of proving she meets either Listing and
is per se disabled. Medical evidence must support such a finding. While the Court holds
that Petitioner’s credibility and physicians’ opinions should be reconsidered by the ALJ,
the determination of whether she satisfies the criteria of either Listing 12.04 or 12.06 will
be left to the ALJ.
ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that Petitioner’s Petition for Review (Dkt. 1) is

1

The “B Criteria” for Listing 12.04 and 12.06 are:

Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.

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GRANTED. This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion. This Remand shall be considered a “sentence
four remand,” consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002).
DATED: September 28, 2011

Honorable Mikel H. Williams
United States Magistrate Judge

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