Bernovich v. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER Plaintiff's Petition for Review (Dkt. 1 ) is GRANTED. This action is REMANDED to the Commissioner for further proceedings. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SCOTT ALLEN BERNOVICH,
Petitioner,

Case No. 3:15-cv-00476-CWD

v.

MEMORANDUM DECISION
AND ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration, 1
Respondent.

INTRODUCTION
Pending before the Court is the Petition for Review of the Commissioner’s denial
of Disability Insurance Benefits and Supplemental Security Income filed by Petitioner
Scott Allen Bernovich on October 9, 2015. (Dkt. 2.) Pursuant to 28 U.S.C. § 636(c), all
parties consented to the exercise of jurisdiction over this matter by the undersigned
United States Magistrate Judge. (Dkt. 11.) The Court has reviewed the Petition for
Review and the Answer, the parties’ memoranda, and the administrative record (AR), and
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to Fed.
Rule Civ. P. 25(d), Nancy A. Berryhill should be substituted for Carolyn W. Colvin as the Respondent in this matter.
No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).

MEMORANDUM DECISION AND ORDER –1

for the reasons that follow, the Court will remand the decision of the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Bernovich filed an application for Disability Insurance Benefits and Supplemental
Security Income on November 9, 2010, claiming disability beginning on September 30,
2009, due to depression, anxiety disorder, carpal tunnel, bi-polar disorder, and dyslexia.
His application was denied initially and on reconsideration, and a hearing was held on
January 10, 2012, in Seattle, Washington, before Administrative Law Judge (ALJ) Laura
Valente. After taking testimony from Bernovich and a vocational expert, ALJ Valente
issued a decision finding Bernovich not disabled on January 26, 2012. Bernovich timely
requested review by the Appeals Council, which denied his request for review on June
20, 2012. Petitioner appealed that final decision to the United States District Court for
the Western District of Washington under 42 U.S.C. § 405(g). Pursuant to a stipulation
between the Commissioner and Bernovich, the court reversed and remanded the
Commissioner’s decision. 2 The Appeals Council remanded the case for a new hearing on
March 5, 2013.

2

The court ordered the ALJ on remand to:
•

Reconsider the medical evidence of record, specifically the opinion of Dr. Kenderdine, and provide the
weight accorded to that opinion and, if rejecting any portions of the opinion, provide specific and legitimate
reasons for doing so in accordance with Social Security Ruling 96-2p;

•

Reassess the claimant’s residual functional capacity; and

•

Reevaluate the claimant’s credibility and, if necessary, obtain supplemental vocational expert testimony to
assist in determining what jobs exist for claimant given his age, education, vocational factors, and residual
functional capacity.

(AR 510-511.)

MEMORANDUM DECISION AND ORDER –2

The remand hearing occurred on August 19, 2014, in Boise, Idaho, before ALJ
Marie Palachuk. After taking testimony from Bernovich and a new vocational expert,
ALJ Palachuk issued a decision finding Bernovich not disabled on November 4, 2014.
(AR 457.) The Appeals Council denied review on August 10, 2015, making the ALJ’s
determination the final decision of the Commissioner. (AR 445.) Bernovich appealed this
final decision to the Court. The Court has jurisdiction to review the ALJ’s decision
pursuant to 42 U.S.C. § 405(g).
Bernovich was born in 1969 and was 44 years of age at the time of the remand.
His past work experience includes restaurant cook, bartender, retail sales clerk, and
computer repairman. (AR 475.) Bernovich last worked in 2009 as a computer repairman
at an office supply superstore, but quit due to his mental impairments.
From October 9, 2010, through June 10, 2010, Bernovich received counseling and
medication treatment for bi-polar disorder and moderately severe depression from various
doctors and social workers at the Health Point-Kent Clinic in Washington State. On his
first visit to the clinic, on October 9, 2009, Bernovich presented experiencing a suicidal
episode. He was seen by Mark A. Wentworth, M.D., and Lisa Martin, Ph.D. (AR 334.)
Dr. Martin doubted that Bernovich was bi-polar, but opined that Bernovich was “deeply
depressed.” (AR 333.) Both medical professionals thought in-patient treatment was
necessary; however, all beds were full at the time. When Bernovich learned that he would
not be receiving in-patient treatment, he became agitated, police and emergency medical
were summoned, and Bernovich was taken to a nearby hospital emergency room.

MEMORANDUM DECISION AND ORDER –3

Bernovich saw Dr. Wentworth again on November 9, 2009, December 8, 2009,
and January 6, 2010. During each visit, Dr. Wentworth opined that Bernovich exhibited
signs of depression, although his symptoms had improved since his first visit in October
of 2009. (AR 329, 327, 325.) Over this period of time, Dr. Wentworth treated Bernovich
for depression by prescribing Ativan and Paxil. At the request of Bernovich, Dr.
Wentworth completed a work capacities assessment in early January of 2010: Dr.
Wentworth opined that Bernovich’s mental impairments precluded him from all work.
Bernovich next saw Melissa S. Negeretti, M.D., at the Health Point-Kent Clinic on March
4, 2010, May 7, 2010, and June 2, 2010. She continued managing Bernovich’s
medications and recorded that Bernovich continued to suffer from severe depression
during each visit. (AR 320, 317.)
Toward the end of 2010 and through 2012, Kitsap Mental Health Services
provided ongoing counseling and treatment (including medication management) to
Bernovich for bi-polar II disorder, generalized anxiety disorder, adjustment disorder with
mixed anxiety and depressed mood, and major depressive disorder. This care and
treatment was under the direction of Licensed Mental Health Counselor Pamela Whitely,
and Advanced Registered Nurse Practitioner Patrick Graham. (AR 360, 367-8, 421, 7589, 390.)
In late 2012, Bernovich and his fiancé (now wife), Jacqueline Davis, moved to
Mississippi to live with Ms. Davis’s parents. 3 During this period, Bernovich did not take
3

Bernovich and his wife briefly moved to Virginia for one month before moving to Mississippi. (AR 491.)

MEMORANDUM DECISION AND ORDER –4

medication for his mental health conditions. At the remand hearing before ALJ Palachuk,
Bernovich explained that he attempted to seek mental health services in Mississippi;
however, to access state services, Bernovich had to be a Mississippi resident for at least
one year. Bernovich and his wife moved to Lewiston, Idaho, in December of 2013. In
February of 2014, Bernovich continued his treatment at the Snake River Clinic for bipolar disorder and depression. (AR 755, 765.)
Since 2009, five examining physicians evaluated Bernovich in connection with his
disability claims. First, on October 1, 2009, William R. Wilkinson, Ed.D, with the
Washington State Department of Health and Welfare, evaluated Bernovich. (AR 292.)
Dr. Wilkinson observed certain markedly severe depression symptoms: no concentration;
no motivation; inability to multitask; and, catastrophic thinking. (AR 293.) He observed
anxiety symptoms of a marked to severe inability to focus, extreme feelings, obsessive
thoughts, and panic attacks. (Id.) Dr. Wilkinson diagnosed Bernovich with bi-polar
mixed-manic depression, agitated depression, and panic disorder without agoraphobia,
and assessed a Global Assessment of Functioning (GAF) of 45. (AR 294.) Dr.
Wilkinson’s evaluation found no indication of current or recent substance abuse. Id. He
opined that Bernovich was not capable of working at that time. (AR 295.)
On May 28, 2010, Shawn K. Kenderdine, Ph.D., with the Washington State
Department of Health and Welfare, evaluated Bernovich. (AR 304.) Dr. Kenderdine
observed the following severe depression symptoms: low energy levels, low motivation,
social isolation, and increased irritability interfering with ability to interact with coworkers and supervisors. He noted that Bernovich’s anxiety “interfered” with the
MEMORANDUM DECISION AND ORDER –5

following symptoms: inability to focus and sustain concentration, poor short term
memory, and poor ability to learn new work-related material. He assessed a GAF of 55.
Dr. Kenderdine reported also that Bernovich suffered from polysubstance abuse. He
noted the abuse began at the age of 16, that Bernovich last used the month prior to the
evaluation, his substance abuse “impacted all areas of his life,” and his depression and
anxiety likely predated the substance abuse. (AR 307.) Dr. Kenderdine did not include
what substances Bernovich used or the extent of the abuse occurring at the time of his
evaluation (i.e., whether the abuse occurred in the past, or was ongoing). Dr. Kenderdine
opined that Bernovich was capable of performing activities of daily living and could
interact on a superficial level with a few individuals. (AR 308.)
On August 4, 2010, and again on July 11, 2011, Norma L. Brown, Ph.D., with the
Washington State Department of Health and Welfare, evaluated Bernovich regarding his
eligibility for public assistance. (AR 341, 432.) During her first clinical evaluation, Dr.
Brown observed severe depressive symptoms of low energy, and marked problems with
sustained concentration and persistence. During her later clinical evaluation with
Bernovich, Dr. Brown observed marked problems with sustained concentration and
persistence and severe low energy. (AR 433.) She noted errors on a trail making test,
indicating inattention. (AR 434.) Dr. Brown diagnosed Bernovich with bi-polar disorder
and panic disorder, and assessed a GAF of 45 during both evaluations. (AR 343, 433-4.)
On March 7, 2011, Shannon L. Jones, Ph.D., with Harbor Behavior Health in Gig
Harbor, Washington, conducted a psychological evaluation of Bernovich and opined that
he suffered from bi-polar II disorder. (AR 378.) She found that he met the criteria for
MEMORANDUM DECISION AND ORDER –6

having experienced a major depressive episode, including mood cycling, anhedonia,
anger, difficult with focus and concentration, poor appetite, broken sleep, fatigue, lack of
motivation, hopelessness, and suicidal ideation without plan or intent. (AR 381.) Dr.
Jones assessed Bernovich’s GAF as 50. During her interview of Bernovich, she recorded
history of past alcohol abuse with no current or recent substance use or abuse. (AR 379.)
Dr. Jones noted that Bernovich’s “alcohol dependence” was in “full sustained remission.”
(AR 381.)
Finally, in December of 2013 while in Mississippi, Bernovich had a psychological
evaluation with J.D. Matherne, Ph.D. During this, Bernovich reported a detailed history
of alcohol abuse, but denied having a current problem with alcohol use or abuse. (AR
474.) Dr. Matherne diagnosed Bernovich with adjustment disorder with mixed anxiety
and depressed mood, and mixed personality disorder. (AR 749.) Dr. Matherne opined that
Bernovich appeared to be “mildly impaired in his ability to perform routine, repetitive
tasks,” and that he was “mildly impaired in his ability to interact with co-workers and
supervisors.” Id.
Two non-examining state agency psychologists, John Robinson and Dan Donahue,
reviewed Bernovich’s medical record on March 3, 2011, and June 16, 2011, respectively.
Both psychologists opined Bernovich would “function best in limited public setting
[with] familiar coworkers as [claimant] has [history] if HI and social avoidance.” (AR
113, 128.)

MEMORANDUM DECISION AND ORDER –7

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 substantial gainful activity. The ALJ
found Bernovich had not engaged in substantial gainful activity since his alleged onset
date of September 30, 2009.
At step two, it must be determined whether the claimant suffers from a severe
impairment. The ALJ found Bernovich’s bi-polar disorder, depression, anxiety, and
alcohol abuse severe within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found Bernovich’s impairments did not meet or equal the criteria
for the listed impairments, specifically considering the criteria of Listings 12.04
(affective disorders), 12.06 (anxiety-related disorders), and 12.09 (substance addiction
disorders). If a claimant’s impairments do not meet or equal a listing, the Commissioner
must determine the claimant’s residual functional capacity (RFC) and next determine, at
step four, whether the claimant has demonstrated an inability to perform past relevant
work.
The ALJ found Bernovich retained the capacity to ability a full range of work at
all exertional levels, but with the following non-exertional limitations: he is able to
understand, remember and carry out simple, routine and repetitive tasks and instructions,
and well learned detailed tasks; he is able to maintain attention and concentration of twohour intervals between regularly scheduled breaks; he is capable of a low stress job
MEMORANDUM DECISION AND ORDER –8

(defined as only occasional changes in work settings/routine and only occasional need to
use judgment/decision-making); he is limited to no interaction with the public and only
superficial interactions with co-workers and supervisors. (AR 465.)
At step four, the ALJ found Bernovich was not able to perform his past relevant
work as a restaurant cook, bartender, retail sales clerk, or computer repairman. 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 ability to make an
adjustment to other work that exists in significant levels in the national economy, after
considering the claimant’s RFC, age, education and work experience. With the RFC
described above, the ALJ found Bernovich could perform the requirements of
representative occupations such as fish cleaner, dining room attendant, and housekeepercleaner.
STANDARD OF REVIEW
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. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 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. §
MEMORANDUM DECISION AND ORDER –9

423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the 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 that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there 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).
When reviewing a case under the substantial evidence standard, the Court may
MEMORANDUM DECISION AND ORDER –10

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 a claimant’s
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
Bernovich contends the ALJ erred at steps two and four. Bernovich first alleges
the ALJ erred by not including or considering his personality disorder as a severe
impairment. Second, Bernovich asserts the ALJ committed error by failing to provide
specific and legitimate reasons supported by substantial evidence for rejecting or
providing minimal weight to the opinions of his treating physician and several examining
medical professionals. Third, Bernovich contends the ALJ erred in assessing his
credibility. And, finally, Bernovich argues the ALJ improperly weighed the lay testimony
of his wife, Ms. Davis. Each of Bernovich’s assignments of error will be discussed in
turn.
I. Severe Impairments
As noted, the ALJ found Bernovich has the severe impairments of bi-polar
disorder, depression, anxiety disorder, and alcohol abuse. In Bernovich’s Application for
Social Security Benefits, under the “medical conditions” section, Bernovich was
instructed to list “all physical or mental conditions… that limit [his] ability to work.” (AR
MEMORANDUM DECISION AND ORDER –11

207.) Although Bernovich did not list “personality disorder” as a condition, he now
asserts the ALJ erred at step two because she failed to consider his personality disorder as
one of his severe impairments.
The United States Court of Appeals for the Ninth Circuit has held that, when an
ALJ resolves step two in a claimant’s favor—i.e., finding that a severe impairment
exists—the ALJ’s failure to identify additional severe impairments is harmless, especially
if the ALJ considered the impairment later in the sequential process. Pouppirt v. Comm'r
of Soc. Sec., 609 F. App'x 440, 441 (9th Cir. 2015); see also Burch v. Barnhart, 400 F.3d
676, 682 (9th Cir. 2005). Accordingly, because the ALJ resolved step two in Bernovich’s
favor and discussed his personality disorder later in the sequential process, 4 the Court
finds any error by the ALJ in failing to identify Bernovich’s personality disorder as an
additional severe impairment was harmless.
II. Physician/Psychologist Opinions
Bernovich argues the ALJ erred by failing to provide specific and legitimate
reasons 5 for rejecting, or providing only minimal weight to, the opinions of his treating

4

The ALJ considered Bernovich’s personality disorder in determining the RFC:
As to claimant’s mental symptoms, a range of mental health diagnoses appear in the record
including [an] adjustment disorder with mixed anxiety and depressed mood and/or major
depressive disorder; bi-polar disorder; generalized anxiety disorder and/or panic disorder;
personality disorder with antisocial traits; reading/learning disorder by history; and history of
alcohol abuse.

(AR 465.)
5

The specific and legitimate standard is used because the opinions of the two non-examining state agency
psychologists, Robinson and Donahue, are contradicted by the opinions of the treating and examining medical
professionals.

MEMORANDUM DECISION AND ORDER –12

physician, Dr. Wentworth, and five examining physicians—Drs. Matherne, Kenderdine,
Jones, Brown, and Wilkinson. The Commissioner contends the ALJ properly weighed all
medical opinion evidence. With the exception of the ALJ’s findings as to Drs. Matherne
and Kenderdine, the Court finds as more fully explained below, the ALJ erred when
assigning weight to the opinions of Drs. Wentworth, Jones, Brown, and Wilkinson.
A. Legal Standard
The United States Court of Appeals for the Ninth Circuit 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 (non-examining physicians).
Lester v. Chatter, 81 F.3d 821, 830 (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).
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 so doing.
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). Likewise, the ALJ must provide
clear and convincing reasons for rejecting the un-contradicted opinions of an examining
physician. Lester, 81 F.3d at 830–31. And, “like the opinion of a treating doctor, the
opinion of an examining doctor, even if contradicted by another doctor, can only be
MEMORANDUM DECISION AND ORDER –13

rejected for specific and legitimate reasons that are supported by substantial evidence in
the record.” Id.
“The ALJ is responsible for resolving conflicts in medical testimony, and
resolving ambiguity.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th
Cir. 1999) (internal citation omitted). “Determining whether inconsistencies are material
(or in fact inconsistencies at all) ... falls within this responsibility.” Id. “An ALJ can meet
the requisite specific and legitimate standard for rejecting a treating physician's opinion
deemed inconsistent with or unsupported by the medical evidence ‘by setting out a
detailed and thorough summary of the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings.’” Smith v. Astrue, 2011 WL 3962107, at *5
(C.D. Cal. Sept. 8, 2011) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
B. Dr. Wentworth
Bernovich argues the ALJ erred by rejecting the opinion of treating physician,
George Wentworth, provided in a work capacities assessment. In that assessment, Dr.
Wentworth opined Bernovich’s severe and marked mental impairments precluded him
from sustaining full time employment. In her decision, the ALJ proffered two reasons for
rejecting Dr. Wentworth’s opinion: (1) the opinion was not based on “specific
observations or examination findings;” and (2) the opinion was inconsistent with “the
longitudinal medical evidence, the claimant’s objective exam findings, progress notes,
activities and demonstrated functioning.” (AR 474.) As explained below, neither is a
specific and legitimate reason supported by substantial evidence to reject the testimony of
a treating and examining physician.
MEMORANDUM DECISION AND ORDER –14

In her decision, the ALJ set forth a detailed summary of Bernovich’s mental health
and medical records, including the work capacities assessment completed by Dr.
Wentworth at Bernovich’s request, dated January 5, 2010. (AR 474.) In the assessment,
Dr. Wentworth diagnosed Bernovich with major depression and opined that Bernovich’s
condition rendered him unable to maintain employment. (AR 338.) Dr. Wentworth
opined that Bernovich’s depression limited his ability to follow instructions, concentrate
for extended periods of time, and interact with others. Id. He noted Bernovich had low
level social skills, and that it required “great effort” for Bernovich to access healthcare
services, and to make, keep, and arrive to his appointments on time. (AR 339.) He noted
also that, while Bernovich was improving with the assistance of medication, his progress
was slow. (AR 338.)
Bernovich argues the ALJ’s first reason for rejecting Dr. Wentworth’s opinion—
because his opinion was not based on “specific observations or examination findings”—
is in error because the ALJ failed to consider Dr. Wentworth’s previous records that
indicate Dr. Wentworth did examine and make observational findings regarding
Bernovich’s mental impairments. Bernovich contends these records (which pre-date the
assessment by only a few months) lend support to Dr. Wentworth’s opinion that
Bernovich’s mental impairments render him unable to work.
Dr. Wentworth counseled and treated Bernovich on four separate occasions
between October of 2009 and January of 2010. During the first visit on October 9, 2009,
Bernovich presented with “behavior” problems. (AR 334.) Specifically, Bernovich
reported he was experiencing suicidal and homicidal thoughts, he felt hopeless and
MEMORANDUM DECISION AND ORDER –15

worthless, and he had severe mood swings and anger issues. Dr. Wentworth diagnosed
Bernovich with acute “depression, major, single episode,” and opined that he “need[ed]
inpatient” treatment. Dr. Wentworth and on-site psychologist Lisa Martin, searched for
an open in-patient bed for Bernovich; however, none was available. Because Dr.
Wentworth felt Bernovich was unstable, he called the police, and an ambulance took
Bernovich to an emergency room at a nearby hospital for admission.
Dr. Wentworth examined and treated Bernovich three additional times on
November 9, 2009, December 8, 2009, and January 6, 2010. During each visit, Dr.
Wentworth opined Bernovich still exhibited signs of depression, although his symptoms
had improved since his first visit in October of 2009. (AR 329, 327, 325.) These four
examinations and the findings from these examinations, which are consistent with and
support Dr. Wentworth’s opinions in the work capacities assessment, were not discussed
or considered by the ALJ in her determination.
The ALJ’s second reason for rejecting Dr. Wentworth’s opinion—because it was
inconsistent with the “longitudinal medical evidence”—is also insufficient. While no
specific inconsistencies were articulated in support of the ALJ’s rejection of Dr.
Wentworth’s opinion, Respondent argues in her response brief that Dr. Wentworth’s
opinion is in conflict with Mississippi examining physician Matherne, and the opinions of
two non-examining state agency psychologists Robinson and Donahue. As explained
below, their opinions, when viewed in light of the entire medical record, do not satisfy
the substantial evidence requirement necessary for the ALJ to reject the opinion of a
treating and examining physician. See Morgan, 169 F.3d at 600 (“[o]pinions of a
MEMORANDUM DECISION AND ORDER –16

nonexamining, testifying medical advisor may serve as substantial evidence when they
are supported by other evidence in the record and are consistent with it.”).
Bernovich visited Dr. Matherne one time on December 10, 2013, for the purpose
of obtaining a psychological examination as requested by the Mississippi Disability
Determination Services. (AR 744.) While Dr. Matherne did not opine specifically that
Bernovich was incapable of full time employment, he did opine that Bernovich was only
mildly impaired in his ability to perform routine, repetitive tasks, and only mildly
impaired in his ability to interact with co-workers and supervisors. (AR 749.) Two nonexamining state agency psychologists, Robinson and Donahue, reviewed his medical
record and they both determined that Bernovich was not disabled and would “function
best in limited public setting [with] familiar co-workers.” (AR 113, 127-128.)
When viewed in light of the entire “longitudinal medical evidence,” the opinions
of these three physicians do not amount to the necessary substantial evidence to support
the ALJ’s rejection of Dr. Wentworth’s opinion. In fact, as indicated in the chart below,
the overwhelming majority of other examining physicians opined that Bernovich has
severe functional impairments, consistent with Dr. Wentworth’s opinion:

MEMORANDUM DECISION AND ORDER –17

Wilkinson
(examining)
10/1/09
(AR 295)

Understand, remember, & follow
simple instructions
Understand follow & remember
complex instructions
Learn new tasks
Exercise judgment & make decisions
Perform routine tasks
Relate appropriately to co-workers &
supervisors
Interact appropriately in public
contacts
Respond appropriately to & tolerate
pressures & expectations of work
Difficulty completing a normal
workday or week without
interruptions from psychologically
based symptoms & to perform at a
consistent pace without unreasonable
number of length & rest periods
Care for self, including hygiene &
appearance
Maintain appropriate behavior in a
work setting
GAF rating

Kenderdine
(examining)
5/28/10
(AR 307-8)

Mild 6

Mild

Brown
(examining
)
8/4/10
(AR 34345)
Mild

Jones
(examining)
3/7/11
(AR 380-81)

Moderate

Mild

Moderate

Moderate

Moderate
to Marked
Moderate

Mild

Moderate

Moderate

Marked

Marked

Mild

Fair

Mild
Marked to
Severe
Moderate

Moderate
Marked

Marked
Marked

Mild

Mild
Mild/Fair

Marked

Moderate

Severe

Marked

Severe

Moderate

Moderate

Marked to
Severe

Marked

Marked

45

55

45

Matherne
(examining)
12/10/13
(AR 744-752)

Mild

Good

Maybe not
able to

Fair

Moderate

Fair
Fair

No ability

Severe

Mild

Brown
(examining)
7/11/11
(AR 434)

Severe

Has
difficulty
Could not
be expected
to maintain
50

Fair
Moderate

45

Because a treating physician’s opinion must be given great weight if it is wellsupported and not inconsistent with the other substantial evidence in the record, which is

6

The scale for the chart is: none (no interference), mild (no significant interference), moderate (significant
interference), marked (very significant interference), severe (inability to perform one or more basic work-related
activities). (AR 434.)
Dr. Matherne’s examination findings were reported using a different scale: unlimited (ability to function is not
limited by mental impairment), good (ability to function is more than satisfactory), fair (ability to function is limited
but satisfactory), poor (ability to function is seriously limited by not precluded), and none (no useful ability to
function). (AR 750.)

MEMORANDUM DECISION AND ORDER –18

the case here as explained above, the Court finds the ALJ erred by rejecting Dr.
Wentworth’s opinion. See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).
C. Dr. Matherne
Bernovich contends the ALJ erred by assigning partial weight to examining
psychologist Matherne’s impairment opinions to the extent they supported the RFC
determination, rejecting those that were not consistent with the RFC. Like Respondent,
the Court believes Petitioner misinterpreted the AJL’s findings. The ALJ found
Petitioner had moderate restrictions, rather than mild restrictions as opined by Dr.
Matherne, in concentration, persistence and pace, and in social interactions. (AR 471.)
As such, the ALJ rejected these aspects of Dr. Matherne’s opinions because the ALJ
found, from the record as a whole, that Petitioner was more limited than Dr. Matherne
had found. As indicated in the above chart, all of Dr. Matherne’s findings were for less
than moderate restrictions.
The only opinions of Dr. Matherne to which the ALJ assigned any weight in her
RFC pertained to Bernovich’s ability to perform routine, repetitive tasks and his abilities
to maintain attention and concentration and “deal with the public.” (AR 749, 751.) The
ALJ did not err in this regard. And, to the extent Bernovich argues the ALJ should have
assigned more weight to the findings of Dr. Matherne the ALJ rejected, the Court finds
such an assignment clearly would not have resulted in a finding of disability in favor of
Bernovich.

MEMORANDUM DECISION AND ORDER –19

D. Dr. Kenderdine
Bernovich contends the ALJ erred by assigning only little weight to, and
excluding from her RFC determination, the opinions of examining psychologist
Kenderdine about marked limitations based on Bernovich’s alcohol abuse.
The Commissioner asserts that the ALJ’s discussion of Bernovich’s alcohol usage before
making a finding of disability may have been error; however, she contends the error was
harmless because the ALJ’s analysis excluding the effects of Bernovich’s alcohol abuse
is supported by substantial evidence in the record. For the following reasons, the Court
finds that, to the extent the ALJ may have erred in assigning weight to Dr. Kenderdine’s
opinions about Bernovich’s occupational limitations, such error was harmless.
Dr. Kenderdine examined Bernovich on May 28, 2010, for the purpose of
evaluating Bernovich’s ability to engage in competitive employment. (AR 304.) Dr.
Kenderdine opined Bernovich had only mild limitations in the ability to understand,
remember, and follow complete instructions, and to learn new tasks. (AR 307-8.) He
further assessed Bernovich as moderately limited in his ability to perform routine tasks
and care for himself. (Id.) The ALJ gave these opinions “significant weight,” because
they were consistent with Bernovich’s performance on the exam, and consistent also with
Bernovich’s reported range of activities and demonstrated functioning. (AR 471-2.)
Dr. Kenderdine further opined Bernovich had marked limitations in other areas of
occupational functioning, due to his mental impairments, including the ability to exercise
judgment and to make decisions, the ability to relate appropriately to co-workers and
supervisors and interact appropriately in contact with the public, and the ability to
MEMORANDUM DECISION AND ORDER –20

respond appropriately to and tolerate the pressures/expectations of a normal work setting.
(AR 308.) In Dr. Kenderdine’s report, he diagnosed Bernovich with polysubstance
dependence, and opined that Bernovich’s “long-term chemical dependency issues
negatively impact” and “impair” his abilities in “all areas of life.” (AR 307.) The ALJ
reasoned that these opinions of Dr. Kenderdine should be given only little weight,
because they factored in alcohol abuse by Bernovich. (AR 472.) Therefore, the ALJ did
not incorporate these findings of marked functional limitations into her RFC
determination.
“A finding of ‘disabled’ under the five-step inquiry does not automatically qualify
a claimant for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.
2001). Pursuant to the Contract with America Advancement Act, an “individual shall not
be considered to be disabled for purposes of [benefits under Title II or XVI of the Act] if
alcoholism or drug addiction would…be a contributing factor material to the
Commissioner's determination that the individual is disabled.” 42 U.S.C. §§
423(d)(2)(C), 1382c(a)(3)(J). The Social Security Administration Regulations specify:
“[i]f we find that you are disabled and have medical evidence of your drug addiction or
alcoholism, we must determine whether your drug addiction or alcoholism is a
contributing factor material to the determination of disability.” 20 C.F.R. §§ 404.1535(a),
416.935(a).
A finding of disability is a condition precedent to the application of 42 U.S.C. §§
423(d)(2)(C) and 1382c(a)(3)(J). In other words, “an ALJ must first conduct the five-step
inquiry without separating out the impact of alcoholism or drug addiction. If the ALJ
MEMORANDUM DECISION AND ORDER –21

finds that the claimant is not disabled under the five-step inquiry, then the claimant is not
entitled to benefits and there is no need to proceed with the analysis under 42 U.S.C. §§
423(d)(2)(C), 1382c(a)(3)(J).” Bustamante, 262 F.3d at 954. Consideration of whether a
claimant’s alcohol abuse is a contributing factor material to his mental impairments,
before a finding of disability, constitutes error. Id. However, the absence of an explicit
disability finding in the initial five step analysis is harmless, as long as the ALJ’s later
analysis excluding the effects of the alcohol abuse is supported. Para v. Astrue, 481 F.3d
742, 747 (9th Cir. 2007).
Here, while the ALJ did not complete the full five-step analysis to determine
whether Bernovich’s mental impairments were disabling before she discussed alcohol
abuse, it appears the ALJ gave Bernovich the benefit of the doubt—the ALJ omitted Dr.
Kenderdine’s limitation findings that she found were enhanced by alcohol abuse and
completed the RFC assessment as if there was no alcoholism at play. Had the ALJ
included these findings of marked limitations by Dr. Kenderdine in her RFC
determination, she would have found alcoholism was a contributing factor to the same,
and benefits would have been denied on that basis.
If the ALJ erred by discussing Bernovich’s alcohol abuse before completing the
full five-step analysis, the Court finds such error was harmless for the alternative reason
more fully explained below--Dr. Kenderdine’s findings of marked limitations were not
supported by substantial (or corroborated and unambiguous) evidence. Thus, excluding
them from the RFC determination actually avoided error. While Dr. Kenderdine
diagnosed Bernovich with polysubstance dependence, a close review of Dr. Kenderdine’s
MEMORANDUM DECISION AND ORDER –22

examination record reveals that Dr. Kenderdine did not indicate which substances were
being used or abused by Bernovich, and whether the use or abuse was current, or
occurred merely in the past.
Indeed, in the instances where alcohol abuse was mentioned by Bernovich to other
physicians, their records refer to past alcohol abuse. For instance, treating nurse
practitioner Graham, at Health Point-Kent Community Clinic, recorded that Bernovich
stated he briefly drank alcohol from ages 17 to 23, but has been clean and sober since that
time. (AR 362.) Examining psychologist Jones reported that Bernovich “acknowledged a
history of alcohol abuse, but denied substance use/abuse, reports he has been clean and
sober since the age of 23.” (AR 381.) Treating physician’s assistant Johnson with the
Peninsula Community Health Services reported that Bernovich acknowledged “a history
of alcohol abuse, but no current usage.” (AR 390.) And, examining psychologist
Matherne reported Bernovich started drinking at age 16, but has not been intoxicated
since age 21. (AR 746.) None of these health care professionals indicated in their records
that Bernovich was currently abusing alcohol, nor did they indicate that Bernovich’s
alcohol usage (past or present) was a contributing factor to the limitations from his
mental impairments.
For these reasons, the Court finds it was harmless error for the ALJ to exclude
limitations due to alcoholism in her RFC determination.
E. Drs. Jones, Brown, and Wilkinson
Bernovich contends the ALJ erred by failing to provide specific and legitimate
reasons for giving the opinions of examining physicians Brown, Jones, and Wilkinson
MEMORANDUM DECISION AND ORDER –23

only little weight. All three physicians opined Bernovich had moderate to marked
limitations in several areas of social and occupational functioning. In support of the
ALJ’s decision to provide only little weight to the opinions of Brown and Jones, the ALJ
noted their opinions relied heavily on Bernovich’s self-reports. In addition, the ALJ
reasoned the opinions of Brown and Wilkinson were given little weight because
Bernovich did not mention his alcohol usage to the physicians (which made the
physicians’ reports less reliable). For the reasons that follow, the Court finds that neither
reason is supported by substantial evidence necessary to justify the ALJ’s assignment of
only little weight to the opinions of these examining physicians.
1. Reliance on Bernovich’s Self-Reports
Dr. Brown examined Bernovich two times, once on August 4, 2010, and again on
July 11, 2011, for the purpose of evaluating Bernovich’s ability to engage in competitive
employment. Following the first examination in 2010, Dr. Brown noted Bernovich had
moderate to severe limitations in several areas of social and occupational functioning. Dr.
Brown opined Bernovich was moderately limited in his ability to complete tasks, learn
new tasks, interact with the public, and care for himself. She opined also that Bernovich
had marked limitations in his ability to exercise judgment and make decisions, and in his
ability to relate appropriately to co-workers and supervisors. She found Bernovich was
severely limited in the ability to tolerate the pressures and expectations of a normal work
setting. She gave Bernovich a GAF rating of 45, indicating serious social/occupational
impairment. The findings of Dr. Brown in her second evaluation in July of 2011
contained findings nearly identical to the first examination.
MEMORANDUM DECISION AND ORDER –24

While some of Dr. Brown’s findings appear to have been based upon Bernovich’s
self-reports, the “Mental Health Symptoms” and “Functional Limitations” portions of her
examinations contain findings based on Dr. Brown’s own clinical observations of
Bernovich: “poor attention during MSE,” “very long response latencies,” “has lack of
attention that affects his performance.” (AR 344.)
Dr. Jones examined Bernovich on March 7, 2011, also for the purpose of
evaluating Bernovich’s ability to engage in competitive employment. Following the
examination, Dr. Jones opined Bernovich “did not appear to have the ability to withstand
the pressures associated with day-to-day work activity,” “he could not carry out workrelated activities with adequate pace and perseverance,” and “he could not be expected to
maintain a regular work schedule or complete a normal workday without interruptions.”
(AR 381.) She gave Bernovich a GAF rating of 50. Like Dr. Brown, while some of Dr.
Jones’ findings appear to have been based on Bernovich’s self-reports, they include also
several of her own clinical observations of Bernovich. For example, Dr. Jones observed
that Bernovich “displayed mild psychomotor agitation,” that he “appeared anxious,” and
that “he was a poor historian throughout [her] evaluation.” (AR 379-380.)
“An ALJ may reject an examining physician's opinion if it is contradicted by
clinical evidence.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1199 (9th Cir. 2008).
But, where an examining psychologist’s report does not contain any indication that that
the claimant was malingering or that she questioned the truth of a claimant’s complaints,
“substantial evidence does not support an ALJ’s finding that an examining psychologists
took claimant's ‘statements at face value.’” Regennitter v. Comm'r of Soc. Sec. Admin.,
MEMORANDUM DECISION AND ORDER –25

166 F.3d 1294, 1300 (9th Cir. 1999); see also Ryan, 528 F.3d at 1199 (“An ALJ does not
provide clear and convincing reasons for rejecting an examining physician's opinion by
questioning the credibility of the patient's complaints where the doctor does not discredit
those complaints and supports his ultimate opinion with his own observations.” Id.
There is nothing in the record indicating that either Dr. Brown or Dr. Jones
doubted Bernovich’s descriptions of his symptoms, or that either Dr. Brown or Dr. Jones
relied more heavily on Bernovich’s self-reports than on their own clinical observations in
reaching their similar conclusions that Bernovich is incapable of maintaining full time
employment. In fact, during both of Dr. Brown’s evaluations, she administered a REY
malingering test and recorded scores of 14/15 and 15/15, both of which indicate “no
obvious malingering.” (AR 435, 348.) Likewise, Dr. Jones opined in her evaluation that
Bernovich “seem[ed] to be forthright and sincere in his answers to [her] questions.” (AR
380.) Accordingly, the ALJ’s reason for giving the opinions of Dr. Brown and Dr. Jones
only little weight is not supported by substantial evidence, and was in error.
2. Misrepresentation of Substance Usage
The ALJ gave Dr. Brown’s and Dr. Wilkinson’s opinions only little weight
because Bernovich did not reveal his current substance use to either Dr. Brown or Dr.
Wilkinson, 7 which the ALJ noted diminished the reliability of their findings. Bernovich
7

Dr. Wilkinson opined that Bernovich was mildly limited in his ability to understand, remember and follow simple
instructions, perform routine tasks, and his ability to care for himself. (AR 295.) He found Bernovich was
moderately limited in the ability to understand, remember and follow complex instructions, to learn new tasks, to
exercise judgment and make decisions, and interact appropriately in public. He found Bernovich was moderately
limited in his ability to relate appropriately to co-workers and supervisors, and maintain appropriate behavior in a
work setting. And he found Bernovich severely limited in the ability to respond appropriately to and tolerate the
pressures and expectations of a normal work setting.

MEMORANDUM DECISION AND ORDER –26

contends the ALJ’s reasoning regarding current substance use is not supported by
substantial evidence in the record; the Court agrees.
As discussed in detail above, substantial evidence does not support a finding that
Bernovich had a current problem with substance abuse or alcohol use. As such, it was
error for the ALJ to discredit the opinions of Dr. Brown and Dr. Wilkinson based on an
assumption that Bernovich concealed ongoing substance abuse or alcoholism during his
evaluations.
III. Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and 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, 400 F.3d at 680; See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792
(9th Cir. 1997) (holding that an ALJ may not discredit a claimant’s subjective testimony
on the basis that there is no objective medical evidence that supports the testimony).
Unless there is affirmative evidence showing that the claimant is malingering, the ALJ
must provide clear and convincing reasons for rejecting the claimant’s subjective
complaints. Burch, 400 F.3d at 680. General findings are insufficient; the ALJ must
identify what testimony is not credible and what evidence undermines the claimant’s
complaints. Reddick, 157 F.3d at 722.

MEMORANDUM DECISION AND ORDER –27

The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter, 166 F.3d at 1296. 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 considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct,
claimant’s daily activities, claimant’s work record, and testimony from physicians and
third parties concerning the nature, severity and effect of the symptoms of which claimant
complains. Thomas, 278 F.3d at 958-59. Also, the ALJ may consider the location,
duration and frequency of symptoms; factors that precipitate and aggravate those
symptoms; the amount and side effects of medications; and treatment measures taken by
the claimant to alleviate those symptoms. See Soc. Sec. Ruling 96-7p.
The ALJ found Bernovich’s testimony regarding the severity of his symptoms not
fully credible, because: Bernovich’s presentation and performance on psychological
evaluations and the various treatment records do not support the level of severity alleged;
medication, when taken consistently, had proven effective; Bernovich had not
consistently taken his medication; Bernovich’s daily activities of living were not
consistent with the severity of his alleged mental impairments; Bernovich made
inconsistent statements regarding alcohol usage, suicidal attempts, hallucinations, and
MEMORANDUM DECISION AND ORDER –28

work history; and Bernovich had an incentive not to seek employment to avoid paying
child support.
Bernovich contends the ALJ erred in assessing his credibility for two reasons.
First, Bernovich asserts the ALJ’s evaluation of his daily life activities failed to take into
consideration the waxing and waning nature of the symptoms of Bernovich’s mental
impairments. Second, Bernovich contends the ALJ’s evaluation of his alcohol usage and
the effect of alcohol on his mental impairments is not supported by substantial evidence
in the record. Because there is no evidence of malingering here, the ALJ was required to
provide clear and convincing reasons supported by substantial evidence for rejecting
Bernovich’s testimony regarding the functional limitations due to his mental
impairments. As explained more fully below, the Court finds the ALJ erred in her
assessment of Bernovich’s credibility.
A. Presentation and performance on psychological evaluations and treatment
records are consistent with Bernovich’s testimony
The ALJ found that “the objective medical evidence does not support finding a
more restrictive residual functional capacity than the one set forth in this decision.” (AR
466.) More specifically, the ALJ found that Bernovich’s presentation and performance on
psychological evaluations, as well as treatments records, did not support the degree of
severity alleged by Bernovich. In support of her conclusion, the ALJ referenced the
evaluations conducted by examining psychologists Kenderdine and Matherne.
During his visit with Dr. Kenderdine, Bernovich reported severe symptoms of
anxiety and depression. Bernovich reported that his symptoms interfered with his ability

MEMORANDUM DECISION AND ORDER –29

to focus and concentrate. He reported these symptoms lead to feelings of social isolation,
increased irritability, and difficulty in interacting with others. (AR 304.) In his report, Dr.
Kenderdine indicated that Bernovich was mildly limited in the abilities to understand,
remember and follow simple and complex instructions, and to learn new tasks. (AR 307.)
Although he assessed Bernovich as markedly limited in the ability to relate to coworkers, supervisors, and the public, Dr. Kenderdine observed that Bernovich was
cooperative and polite during his interview. (AR 310.) Dr. Kenderdine assessed that
Bernovich was markedly limited in his ability to exercise judgment and make decisions,
and to respond appropriately to and tolerate normal work-related pressures/expectations;
however, Dr. Kenderdine opined also that Bernovich’s “long-term chemical dependency
issues negatively impacted” or “impair” these abilities. (AR 307.)
During his evaluation with Dr. Matherne, Bernovich tested within the low average
range of intellectual functioning and exhibited only mild impairment in social interaction.
(AR 746.) Dr. Matherne observed that Bernovich presented as oriented, with average
grooming, and that he related in a cooperative and reasonably well-motivated manner.
(AR 748.) Dr. Matherne reported Bernovich scored in the low average to average range
of intellectual functioning, commenting “intellectual limitation is certainly not a factor
that would contribute to his lack of employment.” (AR 749.) Dr. Matherne concluded
Bernovich appeared to be only “mildly impaired in his ability to perform routine,
repetitive tasks, and only mildly impaired in his ability to interact with co-workers and
supervisors.” (Id.)

MEMORANDUM DECISION AND ORDER –30

The ALJ cited the above reports of Dr. Kenderdine and Dr. Matherne, but ignored
the reports of the other physicians in the record, the majority of whom found Bernovich
to have moderate to severe functional limitations. The ALJ’s reason—that the objective
medical evidence does not support Bernovich’s alleged severity of symptoms—is not
supported by substantial evidence in the record as a whole. Bernovich’s complaints are
consistent with the objective evidence in the record, which shows intermittent diagnoses
of bi-polar disorder, depression, anxiety disorder, and medical opinions indicating
moderate to marked functional limitations due to these mental impairments.
Contrary to Dr. Kenderdine’s and Dr. Matherne’s findings, the treating and other
examining physicians fairly and consistently concluded that Bernovich is moderately
limited in the ability to understand, follow, and remember complex instructions;
moderately to markedly limited in the ability to learn new tasks and exercise judgment;
markedly limited in the ability to relate with co-workers and supervisors; moderate to
markedly limited in the ability to interact appropriately in public; markedly to severely
limited in the ability to tolerate pressures and expectations in the workplace; severely
limited in the ability to complete a normal workday or week without interruptions from
his psychological symptoms; and moderately to markedly limited in his ability to
maintain appropriate behavior in a work setting. Accordingly, the Court finds the ALJ
erred in concluding that Bernovich’s testimony about the severity of his mental
impairments was unsupported by the medical record.

MEMORANDUM DECISION AND ORDER –31

B. Medication (consistency in taking and effectiveness)
The ALJ found Bernovich not fully credible because, despite the reported
effectiveness of Bernovich’s medication for treating and controlling his symptoms, the
record demonstrates that Bernovich had not been consistently compliant with taking his
medication or attending counseling.
“An ‘unexplained, or inadequately explained, failure to seek treatment’ may be the
basis for an adverse credibility finding.” Franz v. Colvin, 91 F. Supp. 3d 1200, 1208 (D.
Or. 2015) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). However, lack of
medical treatment due to an inability to afford medical treatment does not support an
adverse credibility determination. Id. (citing Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.
2007)).
Here, the ALJ found Bernovich was not consistently taking his medication as
prescribed, referencing notes from Bernovich’s October 21, 2010 appointment with
Peninsula Community Health Services, where Bernovich indicated he stopped taking his
medications “because he was moving around.” (AR 390.) Upon review of the record,
prior to this incident of admitted noncompliance, Bernovich was prescribed Paxil and
Ativan for depression management following a suicidal episode in October of 2009. (AR
330, 366.) During the beginning of this medication regime, then treating physician
Wentworth observed that Bernovich’s symptoms had improved. (AR 325.) However, in
April of 2010 and continuing through May of 2010, treating physician Negretti opined
that Bernovich was exhibiting symptoms of a major depressive episode (while still on
Ativan and Paxil). (AR 324, 317.) Dr. Negretti discussed also with Bernovich her
MEMORANDUM DECISION AND ORDER –32

concerns with continued use of Ativan because it is habit forming, and she discussed her
goal to eventually take him off that medication. Despite the ALJ’s observations of noncompliance, Bernovich’s treatment provider was attempting to wean him off Ativan.
And, contrary to the ALJ’s assertion, at the time of the singular instance of noncompliance, the medical record does not support that Bernovich’s medications at that
time were effective at treating his mental impairments. 8
The ALJ indicated Bernovich stopped participating in mental health counseling
due to a disagreement with his providers at Kitsap Community Health, in August of 2011.
The ALJ noted that there is no evidence in the record to support that Bernovich attempted
to locate a different counselor. While this is an accurate observation, the ALJ failed to
take into account Bernovich’s financial situation and failed to consider whether it would
have been financially possible to afford services elsewhere. 9 Nor did the ALJ consider
that, despite the disagreement with his counseling provider, Bernovich continued to take
his prescribed medications for his mental impairments until he moved out of state in
2013.
The ALJ highlighted the year in Mississippi when Bernovich was off his Lithium
and other medications. The ALJ reasoned that, despite Bernovich’s inability to access

8

Physicians began reporting consistent improvement in his mental health once Bernovich began taking Lithium in
early 2011. There is no evidence of non-compliance with Bernovich’s Lithium prescription.
9

In December of 2010, Bernovich reported to Mental Health Counselor Pam Whitely, that he was stressed about his
financial situation, and stated he would not be able to make his rent payment that month. (AR 360.) Bernovich
continued to seek medication treatment from Kitsap Medical Health Services providers. Notes from those providers
consistently indicated that from December of 2010 continuing through June of 2012, Bernovich suffered from “Axis
IV—moderate financial problems.” (AR 759.)

MEMORANDUM DECISION AND ORDER –33

affordable health clinics, “one would still expect to find greater and more consistent
efforts to alleviate symptoms if they were as debilitating as alleged.” (AR 469.) During
this time, Bernovich’s lack of mental health treatment was clearly due to an inability to
afford treatment, and thus, does not support the ALJ’s adverse credibility determination.
Orn, 495 F.3d at 638. Accordingly, the ALJ erred.
C. Activities of daily living
The ALJ also discounted Bernovich’s credibility, finding his demonstrated
functioning and other reported daily activities were inconsistent with the severity of his
alleged limitations. For example, the ALJ noted that Bernovich is capable of self-care, he
fixes his own simple meals, and he contributes to household chores. “The Social Security
Act does not require that claimants be utterly incapacitated to be eligible for benefits, and
many home activities may not be easily transferable to a work environment where it
might be impossible to rest periodically or take medication.” Smolen v. Chater, 80 F.3d
1273, 1284 n. 7 (9th Cir.1996). Bernovich’s report of significant mental impairments are
not inconsistent with the ability to perform minimal household chores.
Additionally, the ALJ noted that Bernovich is able to watch television, play video
games, surf the internet, use public transit (to get to his medical appointments), and
grocery shop. Bernovich reported that he has problems when riding the bus, and gets
anxious when in a crowd. He testified he cannot grocery shop alone because he
experiences panic attacks if the grocery store is too crowded. (AR 60, 586.) Contrary to
the ALJ’s suggestion, Bernovich’s ability to watch television and play video games, and
his reported anxiety when in public, is consistent with the symptoms of his mental
MEMORANDUM DECISION AND ORDER –34

impairments. Accordingly, the Court concludes the ALJ’s reasoning is not supported by
substantial evidence, and thus, is insufficient to discount Bernovich’s credibility.
D. Incentive not to seek employment
The ALJ discredited Bernovich’s credibility because Bernovich has “an incentive
to remain disabled, so that he can avoid paying child support, and consequently, he has a
disincentive to work because he would then have to pay his child support obligation.”
(AR 471.) In support of her conclusion, the ALJ referenced Dr. Matherne’s report which
indicates that Bernovich’s driver’s license is suspended because of his failure to pay child
support. (AR 478.) Dr. Matherne noted that not having a valid driver’s license limits
Bernovich’s ability to obtain and maintain employment. (Id.) The ALJ then referenced
and agreed with the prior 2012 ALJ determination that speculated it was likely
Bernovich’s child support obligations are suspended as long as he is eligible for state
temporary incapacity benefits through the Department of Social and Health Services. (AR
534.)
The Court respectfully finds Dr. Matherne’s observation and the ALJ’s
speculation do not constitute substantial evidence to support the ALJ’s conclusion that
Bernovich is not credible because he has an incentive not to seek full time employment.
E. Inconsistent statements
The ALJ cites to Bernovich’s inconsistent statements at the hearing and in the
medical record regarding his alcohol usage, reports of suicide attempts, hallucinations,
and work history to discredit him. (AR 469.) An ALJ may consider prior inconsistent
statements concerning symptoms and “other testimony by [plaintiff] that appears less
MEMORANDUM DECISION AND ORDER –35

than candid in weighing plaintiff's credibility.” Tommasetti v. Astrue, 533 F.3d 1035,
1039 (9th Cir. 2008).
As the ALJ accurately noted, several medical records indicate that Bernovich has
been “clean and sober” since his early 20s. Other medical records indicate reports by
Bernovich that he will occasionally consume a beer. And, during the first ALJ hearing,
Bernovich reported that he consumes about a twelve-pack of beer over a six-month
period of time.
In terms of suicide attempts, Bernovich reported to an examiner in 2009 that he
had once attempted suicide by hanging. (AR 330.) However, during two evaluations in
2010, Bernovich reported no prior suicide attempts. (AR 348, 374.) Similarly, during an
April 2010 examination, Bernovich denied having any problems with auditory and visual
hallucinations. (AR 323-324.) But, in December of 2010, Bernovich reported
experiencing vague auditory hallucinations, as well as visual hallucinations that the
examiner noted were “of questionable validity.” (AR 362.)
Last, the ALJ noted Bernovich indicated that he has not worked since 2009.
However, treatment records in April and May of 2010 record that Bernovich reported
“working graveyard shift doing newspaper delivery.” (AR 421-422.) The ALJ’s findings
regarding these inconsistencies in Bernovich’s reports are supported by the record.
D. Harmless Error
An ALJ's error in finding a claimant’s testimony not credible may be harmless if
numerous other valid reasons exist for discrediting the claimant's testimony overall, such
as the claimant's failure to seek treatment and contradictory testimony. Batson v. Comm'r
MEMORANDUM DECISION AND ORDER –36

of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004); see Carmickle v. Comm'r, Soc.
Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) (affirming district court decision
finding that striking down one justification for discrediting a claimant's testimony
amounted to a harmless error where the ALJ presented other reasons for discrediting the
testimony that were supported by substantial evidence in the record).
For example, in Batson, the Ninth Circuit affirmed the district court’s decision
finding that the ALJ erred in one component of his credibility determination. Batson, 359
F.3d at 1197. However, the Ninth Circuit found that such error was harmless, because
several other valid reasons, supported by substantial evidence, corroborated the ALJ’s
decision discrediting the claimant’s testimony: his testimony and results of physical
examinations were inconsistent with disability, his physicians doubted the severity of his
claim, the extent and nature of his daily activities of living, and his delay in obtaining
medical treatment. Id.
The ALJ’s reliance here on Drs. Matherne’s and Kenderdine’s psychological
evaluations of Bernovich, his inconsistency with taking medication, his activities of daily
living, and the speculative incentive not to seek employment, was not harmless error.
Unlike the ALJ in Batson, the ALJ here provided only one valid reason for finding
Bernovich not fully credible—his minor inconsistent statements regarding his alcohol
usage, suicide attempts, hallucinations, and work history. This reason by itself does not
support discrediting Bernovich’s testimony overall. See e.g., Rostocil v. Colvin, WL
1333983, at *8 (D. Or. Apr. 2, 2014) (finding one valid reason to discredit claimant’s
credibility insufficient to satisfy substantial evidence standard); see also Santiago v.
MEMORANDUM DECISION AND ORDER –37

Astrue, 2010 WL 466052, at *21 (D. Ariz. Feb. 10, 2010) (evidence of claimaint’s
discharge from physical therapy after five sessions, on its own, did not “rise to the level
of substantial evidence” to support ALJ’s credibility finding). Accordingly, because the
ALJ’s ultimate conclusion regarding Bernovich’s credibility was not supported by
substantial evidence, the ALJ’s errors were not harmless.
IV. Lay Witness Testimony
Lay witness testimony as to a claimant's symptoms or how an impairment affects
the claimant's ability to work is competent evidence that the ALJ must consider. Nguyen
v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996). Competent lay witness testimony “cannot
be disregarded without comment,” Nguyen, 100 F.3d at 1467, and to discount competent
lay witness testimony, the ALJ “must give reasons that are germane to each witness,”
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). But, the ALJ is not required to
discuss every witness’s testimony on an individualized, witness-by-witness basis. Molina
v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). Rather, if the ALJ gives germane reasons
for rejecting testimony by one witness, the ALJ need only point to those reasons when
rejecting similar testimony by a different witness. Molina, 674 F.3d at 1115 (citing
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that
because “the ALJ provided clear and convincing reasons for rejecting [the claimant's]
own subjective complaints, and because [the lay witness's] testimony was similar to such
complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay
witness's] testimony”)). “The applicable regulations are in accord; they require the ALJ to
consider testimony from family and friends submitted on behalf of the claimant, see 20
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C.F.R. §§ 404.1529(c)(3), 404.1545(a)(3), but do not require the ALJ to provide express
reasons for rejecting testimony from each lay witness.” Id.; see also SSR 06–03p
(recognizing that “there is a distinction between what an adjudicator must consider and
what the adjudicator must explain in the disability determination or decision”).
Bernovich’s wife, Jacqueline Davis, submitted two third party function reports,
each dated January 13, 2011. (AR 223, 273.) Davis reported that Bernovich “freaks out
easily in groups of people,” that in “stressful conditions [Bernovich] becomes hostile
vocally and becomes irrational,” and that Bernovich “has difficulty following simple to
complex instructions.” (AR 224.) She reported that Bernovich is able to cook small meals
for himself, he cleans the cat’s litter box,” and he can do the dishes and vacuum the
floors. She reported Bernovich bathes once a week and needs to be reminded to groom
himself (shave/care for hair). Davis indicated that Bernovich shops in stores for food,
clothing, and household items, however, he becomes irritable and she has to accompany
him. Davis drives Bernovich to all of his appointments. She reported:
[Bernovich] has major issues being around anyone. He has been very
confrontational and starts fights with people that he does not know for
stupid reasons. He isolates himself when our friends are over and often
isolates himself from me. I had to stop allowing him to join in
conversations with my family or important people because he tries to talk
over me or change the subject.
(AR 278.)
The ALJ gave little weight to Davis’s opinions, because: (1) her reports are
personal observations that essentially reiterate many of Bernovich’s claims that he is
unable to work or function in activities of daily living due to the symptoms of his mental

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impairments—the same allegations the ALJ found not fully credible; and (2) her reports
describe significant limitations despite reporting also Bernovich’s ability to engage in a
range of activities. (AR 475.)
Here, the Court has found that the ALJ’s reasoning for not finding Bernovich fully
credible on account of his reported activities of daily living was in error; thus, the ALJ’s
reasoning for rejecting Davis’s reports of the same were in error also.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1. Plaintiff’s Petition for Review (Dkt. 1) is GRANTED;
2. This action is REMANDED to the Commissioner for further proceedings
consistent with the above analysis and to include:
a. Reconsider the medical evidence of record, specifically the opinions of Drs.
Wentworth, Jones, Brown, and Wilkinson, and provide the weight accorded
to their opinions. If applicable, provide also specific and legitimate reasons
for rejecting any portions of their opinions in accordance with Social
Security Ruling 96-2p;
b. Reassess Bernovich’s residual functional capacity;
c. Reevaluate Bernovich’s credibility and, if necessary, obtain supplemental
vocational expert testimony to assist in determining what jobs exist for
claimant given his age, education, vocational factors, and residual
functional capacity; and

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d. Reconsider the third party function reports of Ms. Davis, and if discrediting
her reports, provide reasons germane to Ms. Davis for doing so.
3. This Remand constitutes a “sentence four remand” consistent with 42 U.S.C.
§ 405(g) and Akopyan v. Barnhart, 296 F.3d 582, 584 (9th Cir. 2002).

DATED: March 27, 2017

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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