Barker v. Colvin
Filing
18
MEMORANDUM DECISION & ORDER - it is hereby ORDERED that the Commissioner's decision is REMANDED for further proceedings consistent with the Court's order. Signed by Judge Candy W. Dale. (klw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CHARLENE S. BARKER,
Petitioner,
Case No. 4:15-cv-00257-CWD
v.
MEMORANDUM DECISION
AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Respondent.
INTRODUCTION
Before the Court is Charlene Barker’s Petition for Review, filed on July 10, 2015.
(Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties’
memoranda, and the administrative record (AR). For the reasons that follow, the Court
will remand the decision of the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on April 30, 2013, claiming disability beginning April 30, 2013.
Petitioner alleges significant impairments, which include major depressive disorder;
bipolar disorder; degenerative disk disease of the cervical and lumbar spine, status post
MEMORANDUM DECISION AND ORDER - 1
L4-5 fusion; Factor V deficiency; seizure disorder; deep vein thrombosis of the right
lower extremity; obesity; and obstructive sleep apnea. This application was denied
initially and on reconsideration, and a hearing was held on March 23, 2015, before
Administrative Law Judge (ALJ) Luke Brennan. After hearing testimony from Petitioner
and vocational expert Kourtney Layton, ALJ Brennan issued a decision on April 2, 2015,
finding Petitioner not disabled. Petitioner timely requested review by the Appeals
Council, which denied her request for review on May 19, 2015.
Petitioner 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).
At the time of the hearing, Petitioner was 49 years of age. Petitioner graduated
from high school and completed a certificate program in esthetics. Petitioner’s prior work
experience includes work as a medical assistant and receptionist.
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 Petitioner had not engaged in substantial gainful activity since her alleged onset
date. At step two, it must be determined whether the claimant suffers from a severe
impairment. The ALJ found Petitioner’s major depressive disorder; bipolar disorder;
degenerative disk disease of the cervical and lumbar spine, status post L4-5 fusion; Factor
V deficiency; seizure disorder; deep vein thrombosis of the right lower extremity;
MEMORANDUM DECISION AND ORDER - 2
obesity; and obstructive sleep apnea severe within the meaning of the Regulations.
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, specifically considering Listing 1.04 (Disorders of the
spine); Listing 3.10 (Sleep related breathing disorders); Listing 11.02 (Epilepsy –
convulsive epilepsy (grand mal or psychomotor)) and Listing 11.03 (Epilepsy –
nonconvulsive epilepsy (petit mal, psychomotor, or focal)); Listing 7.08 (chronic
thrombocytopenia); and Listings 12.04, 12.06, and 12.08 (Affective disorder, anxietyrelated disorder, and personality disorder).
If a claimant’s impairments do not meet or equal a listing, the Commissioner must
assess the claimant’s residual functional capacity (RFC) and determine, at step four,
whether the claimant has demonstrated an inability to perform past relevant work. The
ALJ determined Petitioner retained the RFC to perform light work, with additional
limitations. Those limitations included the following restrictions: lift and carry 20 pounds
occasionally and 10 pounds frequently; frequently climb ramps and stairs; never climb
ladders and scaffolds; frequently stoop, kneel, crouch, and balance; occasionally crawl;
avoid concentrated exposure to hazards such as extreme heat and cold; avoid moderate
exposure to vibration; avoid all exposure to hazards including unprotected heights and
moving machinery; and limited to simple, routine tasks, with occasional interaction with
supervisors, co-workers, and the public.
With such an RFC, the ALJ found Petitioner was not able to perform her past
MEMORANDUM DECISION AND ORDER - 3
relevant work as either a receptionist or medical 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. Given
Petitioner’s RFC and the hypothetical posed to the vocational expert, the ALJ found
Petitioner would be able to perform the requirements of representative occupations such
as marker; mail clerk; and routing clerk. Accordingly, the ALJ found Petitioner not
disabled.
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 her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her 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 Commissioner if
MEMORANDUM DECISION AND ORDER - 4
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
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
MEMORANDUM DECISION AND ORDER - 5
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
Petitioner contends the ALJ erred at steps three and four. Specifically, Petitioner
argues the ALJ erred when he found Petitioner did not meet either Listing 11.02
(Epilepsy) or Listing 12.07 (Somatoform mental disorder). Petitioner argues also the ALJ
erred in his credibility assessment and improperly discounted the opinions of Petitioner’s
treating physician, Dr. Stephen Denagy, and other treating sources. Each assignment of
error will be discussed in turn.
1.
Meet or Equal a Listing
The ALJ found Petitioner’s impairments did not meet or equal any listing. At issue
here are Listings 11.02 (Epilepsy) and 12.07 (Somatoform disorders). Petitioner claims
her seizures, which are classified as psychogenic non-epileptic seizures (PNES), are
medically equivalent to epileptic seizures, or alternatively would meet the definition of a
somatoform disorder.
If the claimant satisfies the criteria under a listing and meets the twelve month
duration requirement, the Commissioner must find the claimant disabled without
MEMORANDUM DECISION AND ORDER - 6
considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A
claimant bears the burden of producing medical evidence establishing all of the requisite
medical findings that her impairments meet or equal any particular listing. Bowen v.
Yuckert, 482 U.S 137, 146, n. 5 (1987). Further, if the claimant is alleging equivalency to
a listing, the claimant must proffer a theory, plausible or other, as to how her combined
impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).
Equivalence is determined on the basis of a comparison between the “symptoms,
signs and laboratory findings” about the claimant's impairment as evidenced by the
medical records “with the medical criteria shown with the listed impairment.” 20 C.F.R.
§ 404.1526. Further, equivalence depends on medical evidence only; age, education, and
work experience are irrelevant. Id. at § 404.1526(c). Finally and critically, “the
claimant’s illnesses ‘must be considered in combination and must not be fragmentized in
evaluating their effects.’” Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting
Beecher v. Heckler, 756 F.2d 693, 694-95 (9th Cir. 1985)). “A boilerplate finding is
insufficient to support a conclusion that a claimant’s impairment does not” meet or equal
a listed impairment. Lewis, 236 F.3d at 512 (citing Marcia v. Sullivan, 900 F.2d 172, 176
(9th Cir. 1990)).
The ALJ concluded Petitioner “does not have any medically acceptable objective
diagnostic evidence of a seizure disorder (see below).” (AR 24.) To support his
conclusion, the ALJ relied upon Petitioner’s normal EEG results, obtained in October of
2011, and in February of 2012. In addition, the ALJ found the record was “not consistent
MEMORANDUM DECISION AND ORDER - 7
with the claimant’s allegations of disabling seizures” because Petitioner has not been
observed to have any bruising or other indicia of having suffered injuries due to the
seizures, despite Petitioner’s allegations that the seizures last at least half an hour, are
highly convulsive, and happen every day.
The ALJ further found that, despite Petitioner’s allegations of suffering postictal
symptoms of convulsion that last several hours and sometimes up to a day or two, “one
would expect Petitioner to be in a confused stupor most of the time. Yet she is almost
never observed to exhibit confusion, word finding difficulties, or other indicia of such
postictal symptoms.” The ALJ next proceeded to discount Petitioner’s description that
her seizures lessened in duration, but not frequency, on the grounds that Petitioner’s
physician remarked in July of 2014 that, whereas she used to observe the Petitioner
having seizures, “it had been a long time since she had observed such a seizure.” (AR
28.) The ALJ drew the conclusion that, because Petitioner’s physician had not witnessed
a seizure recently, the seizures decreased in frequency, contrary to Petitioner’s allegations
that they had not.
Petitioner contends the ALJ erred, because Petitioner’s seizure disorder is not
detected by, or diagnosed with, an EEG. Further, Petitioner notes the ALJ witnessed the
occurrence of a seizure during the hearing, yet failed to mention it in his written decision.
Petitioner contends the ALJ erred by manufacturing his own conclusions regarding
Petitioner’s seizure disorder that are not supported by evidence in the record. The Court
finds Petitioner is correct.
MEMORANDUM DECISION AND ORDER - 8
Epilepsy is a listed impairment evaluated according to the type, frequency,
duration, and after-effect of seizures. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
To meet Listing 11.02, a claimant must document by detailed description a typical
seizure pattern, including all associated phenomena, which occurs more frequently than
once a month in spite of at least three months of prescribed treatment. The seizures must
present as either daytime episodes (loss of consciousness and convulsive seizures) or
nocturnal episodes manifesting residuals which interfere significantly with activity during
the day. 1
Respondent argues substantial evidence supports the ALJ’s finding that Petitioner
did not have medically acceptable objective diagnostic evidence of a seizure disorder
because Petitioner failed to present the requisite objective evidence of a detailed
description of a typical seizure. On the contrary—Petitioner presented several detailed
descriptions of a typical seizure in her brief, with references to the record where medical
providers documented their own personal observations. (Dkt. 13 at 7-8.)
For example, Petitioner cited to a January 27, 2012 emergency department report,
where the medical provider noted: “Pt in active seizure when EMS arrived. Pt arrived
moaning and having seizure like activity upon arrival in to ED.” (AR 303.) Medical
providers noted Petitioner was shaking upon arrival, had an altered mental status, and had
1
11.02 Epilepsy - convulsive epilepsy, (grand mal or psychomotor), documented by detailed
description of a typical seizure pattern, including all associated phenomena; occurring more frequently
than once a month, in spite of at least 3 months of prescribed treatment. With:
A. Daytime episodes (loss of consciousness and convulsive seizures) or
B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the
day.
MEMORANDUM DECISION AND ORDER - 9
intermittent shaking, which could be stopped abruptly with painful stimuli. (AR 303305.) The initial evaluation indicated it “was clear that the patient was having
pseudoseizures.” (AR 306.)
Petitioner cited to her evaluation at Swedish Medical Center, where Petitioner
underwent EEG monitoring from February 13, 2012, to February 17, 2012, for a total of
four full days of continuous monitoring. (Dkt. 13 at 8; AR 314-317.) During observation,
although no electrical abnormalities were seen via an EEG, Petitioner was described as
exhibiting minimal sleep and observed as having numerous clinical events, the first of
which consisted of hyperventilation, shoulder shaking, shoulder twitching, backwards
head arching, stiffness, and upper body jerks in a waxing and waning fashion. A second
event was described as rapid shoulder and head shaking, moaning, increased movement
intensity, repetitive tension with small arching and brief periods of arching of the upper
back and neck, with corresponding unresponsiveness to verbal stimulation. Additional,
similar seizure-like events were observed throughout the four days of testing and
observation. Id.
The third seizure description Petitioner cited was the event documented by Pearl
Health Clinic on October 8, 2013. (Dkt. 13 at 9; AR 404.) In the treatment note, Nurse
Practitioner Elizabeth Bentley documented that, two hours into the assessment process,
Petitioner demonstrated acute anxiety, or a seizure, which lasted for 20-30 minutes,
characterized by tightening muscles in her arms and hands, heavy breathing, and
thrashing. (AR 404.) Bentley noted Petitioner was cognitively alert and able to
MEMORANDUM DECISION AND ORDER - 10
communicate, but that the episode did not fully dissipate and paramedics were contacted
to transport Petitioner to the hospital. (AR 405.)
And finally, Petitioner pointed to the transcript of the hearing, wherein the ALJ
admitted: “claimant is having a seizure.” (Dkt. 13 at 9; AR 76.) Petitioner’s sister, who
attended the hearing, is recorded as instructing her sister to “take deep breaths,” and
giving her water. At its conclusion, the ALJ noted that “Ms. Barker had what has been—
what appears to be and what has been described as a typical seizure for her.” (AR 78.)
Respondent’s argument that Petitioner failed to give a detailed description of a typical
seizure is therefore rejected, and the Court finds the ALJ erred.
Next, Respondent argues Petitioner waived the argument that her impairments are
medically equivalent to Listing 11.02, because Petitioner did not provide supporting
analysis for her medical equivalence argument. Again, the Court rejects Respondent’s
argument, finding Petitioner adequately explained in her brief why she functionally
equals the requirements of Listing 11.02. Petitioner noted the medical records indicated
that, in August of 2014, Petitioner reported having seizures 3-5 times a week, with an
increase in daytime seizures, consistent with her report in September of 2014 at the Sleep
Institute. (AR 530, 536.) Petitioner followed up consistently with her care providers
regarding her seizure disorder, and was prescribed a variety of medications to treat her
MEMORANDUM DECISION AND ORDER - 11
disorder and her other ailments. (AR 533.) 2 Petitioner notes also that her medical records
indicate her seizures were misdiagnosed, and she was treated for epilepsy. (AR 387;
457.) 3 Petitioner argued in her brief that her seizure disorder, as documented by the
medical record, manifests itself in “frequent, psychogenic non-epileptiform seizure
episodes” equivalent to epilepsy. Brief at 5-6. Petitioner therefore adequately provided
supporting analysis for her medical equivalence argument.
Here, the ALJ improperly utilized his credibility analysis as support for finding
Petitioner’s seizure disorder did not meet, or was not medically equivalent to, a listed
impairment. Petitioner’s credibility, which concerns the disabling effects of her seizures,
requires an entirely different analysis than determining whether Petitioner meets or
equals a listing. When considering medical equivalence to epilepsy, the ALJ must
evaluate the type, frequency, duration, and after-effect of Petitioner’s seizures, which are
well documented in the medical records. The ALJ made no specific findings as to the
nature and extent of the seizures, and instead utilized his credibility analysis to substitute
for such findings.
The ALJ’s credibility analysis clearly demonstrates the ALJ simply did not believe
2
The August 26, 2014 progress note from Quinn Thibodeau, LCPC, indicates Petitioner at that
time was prescribed and taking Latuda 80 MG; Abilify 2 MG; Lorazepam 1 MG; Propranolol HCL 20
MG; Prazosin HCl 2 MG; Lamotrigine 200 MG; Zarelto 20 MG; Naltrexone HCl 4.5; Ropinirole HCl 2
2MG; and Praminpexole Dihydrochloride 1 MG on a daily basis.
3
The treatment note from September 3, 2013, from the Pearl Health Clinic, documents Petitioner
reported having multiple seizure episodes. Portneuf medical records dated October 28, 2013, indicate
Petitioner previously was prescribed seizure medications.
MEMORANDUM DECISION AND ORDER - 12
Petitioner’s account of her seizures, 4 and makes no mention of the detailed descriptions
of Petitioner’s psychogenic seizure activity observed and documented by Petitioner’s
medical care providers. Nor did the ALJ make any findings as to whether Petitioner
suffered nighttime seizures that affected her daytime activity. Here, the ALJ’s statement
that Petitioner does not have objective diagnostic evidence of a seizure disorder, which
next referred to his analysis of credibility, is not sufficient and constitutes error.
Additionally, the Court finds the ALJ’s failure to consider Petitioner’s seizure
disorder under Listing 12.07 constitutes reversible error. Despite presenting with
nonepileptic seizures, or psychogenic nonepileptic seizures (AR 457, 559), the ALJ did
not compare Petitioner’s impairments to Listing 12.07. (AR 24.) The Court is perplexed
at the omission, given the definition of Listing 12.07 includes, as a symptom, “persistent
nonorganic disturbance of …movement and its control (e.g.,…psychogenic seizures….).”
The full text of Listing 12.07 states:
Somatoform disorders manifest themselves in:
Physical symptoms for which there are no demonstrable
organic findings or known physiological mechanisms.
The required level of severity for these disorders is met when
the requirements in both A and B are satisfied.
A. Medically documented by evidence of one of the
4
The ALJ was of the opinion that Petitioner’s report of having seizures every day would require
her to “be in a confused stupor most of the time. Yet she is almost never observed to exhibit confusion,
word finding difficulties, or other indicia of such postictal symptoms.” (AR 28.) The ALJ does not cite to
the record to support this “observation.” However, the Court found several instances where medical care
providers indicated Petitioner was suffering from impaired cognition and memory. (AR 539-- “she cannot
remember from visit to visit what we discuss; her cognition is impaired, memory impaired.” “her
cognition is not intact.”); (AR 540 – “has so much difficulty w/ memory she can’t remember what we
have gone through.”); (AR 545 – suggesting patient “get all her meds from heartland and all in bubble
packs instead of fredmyer (sic) and heartland, too confusing and she doesn’t know what she does or
doesn’t take.”). The ALJ erred by ignoring this evidence in favor of his own unsupported conclusion.
MEMORANDUM DECISION AND ORDER - 13
following:
1. A history of multiple physical symptoms of several years
duration, beginning before age 30, that have caused the individual to
take medicine frequently, see a physician often and alter life patterns
significantly; or
2. Persistent nonorganic disturbance of one of the following:
a. Vision; or
b. Speech; or
c. Hearing; or
d. Use of a limb; or
e. Movement and its control (e.g., coordination disturbance,
psychogenic seizures, akinesia, dyskinesia); or
f. Sensation (e.g., diminished or heightened).
3. Unrealistic interpretation of physical signs or sensations
associated with the preoccupation or belief that one has a serious
disease or injury;
AND
B. 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.
Although the ALJ failed to discuss the paragraph B criteria in the context of
Listing 12.07, he did so when considering whether Petitioner met the requirements of
Listings 12.04, 12.06, and 12.08. The ALJ found Petitioner had mild restrictions of daily
living, moderate difficulty with social functioning, and moderate difficulties with regard
to concentration, persistence, and pace. (AR 24.) The ALJ then added additional analysis
at step four. The ALJ gave little weight to the opinions of Petitioner’s treating physician
and her other care providers, all of whom opined Petitioner had marked limitations with
respect to her mental functioning. The grounds for doing so were that, if the opinions
MEMORANDUM DECISION AND ORDER - 14
were true, “one would be surprised to see the clamaint ever leave her house.” (AR 29-30.)
Respondent argues the ALJ’s analysis satisfies the analysis that would have been
required under Listing 12.07, because the ALJ adequately discussed the paragraph B
criteria and properly discredited the medical opinions supporting a finding of marked
limitations in at least two key functional areas. (Brief at 13, Dkt. 16.) However,
Respondent’s arguments that the ALJ properly discredited Dr. Denagy’s and LCPC
Thibodeau’s opinions ring hollow, as they are nothing more than generalizations. The
Court finds the ALJ erred when evaluating the treating physician’s opinion and the other
medical source opinions as they related to the part B criteria, discussed below.
2.
Physician Opinions and Other Medical Sources
The Ninth Circuit Court of Appeals 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. Chater, 81 F.3d 821,
830 (9th Cir. 1995). As a general rule, more weight should be given to the opinion of a
treating source than to the opinion of doctors who do not treat the claimant. Winans v.
Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Where the treating doctor'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). Also, “clear and
convincing” reasons are required to reject the treating doctor's ultimate conclusions.
Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even if the treating doctor's opinion
MEMORANDUM DECISION AND ORDER - 15
is contradicted by another doctor, the Commissioner may not reject this 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).
The opinion of an examining physician is, in turn, 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). As is the case with the opinion
of a treating physician, the Commissioner must provide “clear and convincing” reasons
for rejecting the uncontradicted opinion of an examining physician. Pitzer, 908 F.2d at
506. And, like the opinion of a treating doctor, the opinion of an examining doctor, even
if contradicted by another doctor, can only be rejected for specific and legitimate reasons
that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d
1035, 1043 (9th Cir. 1995).
The ALJ is required also to consider the opinions of “other sources,” such as
therapists or counselors. 20 C.F.R. § 404.1513(d). The ALJ may discount testimony from
other sources if the ALJ “gives reasons germane to each witness for doing so.” Molina v.
Astrue, 674. F.3d 1104, 1111 (9th Cir. 2012).
Petitioner’s treating physician, Dr. Denagy, was of the opinion that Petitioner had
extreme limitations in maintaining social functioning and concentration, persistence, or
pace, and marked restrictions of activities of daily living. (AR 522-525.) Petitioner’s
counselor, Quinn Thibodeau, LCPC, was essentially in agreement with Dr. Denagy. (AR
521, 526-529.) The ALJ rejected the opinions of Dr. Denagy and LCPC Thibodeau in
MEMORANDUM DECISION AND ORDER - 16
favor of the opinion of the state agency psychological consultant, on the grounds that the
agency opinion was rendered after a review of the record and was consistent with the
record as a whole. (AR 24.) The state agency consultants were of the opinion that
Petitioner had, at most, moderate limitations in maintaining social functioning and
maintaining concentration, persistence or pace; and mild limitations in activities of daily
living. (AR 90; 106; 126.)
Additionally, the ALJ gave the consultative psychological examiner, Jay Casper,
Ed.D.’s opinion significant weight. Dr. Casper was of the opinion Petitioner would have
problems with social interaction and sustaining concentration at work, but could perform
simple tasks. The reasons given for assessing “great weight” to Dr. Casper’s opinion
were that his opinion was “generally consistent with the claimant’s mental health
treatment history, her mental status exam findings, and the record as a whole.” (AR 30.)
Without any analysis, the ALJ adopted the report of the consulting psychological
examiner and the reviewing state agency consultants on the grounds their opinions were
consistent with Petitioner’s mental status exam, physical exam findings, and her
treatment history. The Court finds these assertions without support in the record. Upon
close review, the ALJ’s decision to reject the opinions of Dr. Denagy and LCPC
Thibodeau is not supported by the record as a whole. The ALJ based his rejection of Dr.
Denagy’s and LCPC Thibodeau’s opinions upon his own speculation and with
generalized assertions that the record as a whole did not support their opinions.
With regard to the first reason for rejecting Dr. Denagy’s opinion---that it is so
MEMORANDUM DECISION AND ORDER - 17
extreme Petitioner would not be expected to leave the house---substantial evidence in the
record supports the conclusion that Petitioner does not leave the house unless someone
(usually her sister) accompanies her. The third party function report completed by
Petitioner’s sister indicates she takes Petitioner shopping, to doctor’s appointments, and
to run errands. (AR 239.) Petitioner’s sister indicates also that, other than doctor’s
appointments, Petitioner does not have any hobbies or places that she goes on a regular
basis. (AR 243-244; 384.) Petitioner reported she does not like to leave the house, and
does so only to go to her medical appointments. (AR 253, 383-384.) There is no evidence
in the medical records that Petitioner reported going anywhere on a consistent basis or
having any hobbies or interests outside her home.
Next, the ALJ cites inconsistency with Petitioner’s mental status exam as a reason
for discounting Dr. Denagy’s opinion. (AR 28-29; 30.) The mental status exam
referenced is Dr. Casper’s opinion, dated August 20, 2013. (AR 382-386.) The ALJ
cannot discredit Dr. Denagy’s opinion on the sole ground that it conflicts with the report
of an examining physician. Rather, once a conflict is found, the ALJ must provide
“specific and legitimate reasons” supported by substantial evidence in the record for
discrediting the treating physician’s opinion. The mere existence of a conflict is not a
specific or legitimate reason for discounting the opinions of a treating source.
Continuing with the physical exam findings, the ALJ cites to the same medical
reports to indicate that, while the exams reveal instances of tearful and labile affect, poor
hygiene, tangential thoughts, and depressed mood, they also reveal Petitioner to be
MEMORANDUM DECISION AND ORDER - 18
“pleasant and cooperative,” with normal affect and thought processes, normal
concentration, and a normal ability to relate to stories and jokes. (AR 28.) Perhaps the
Court is reviewing different medical records from those the ALJ reviewed. Upon
examination of the medical evidence the ALJ cited for support that Petitioner is
frequently revealed to be relatively “normal,” (AR 29), the Court finds no support for the
ALJ’s conclusion that the physical exam findings contradict Dr. Denagy’s and LCPC
Thibodeau’s opinions.
For example, Exhibit 8F (AR 382) 5 cited by the ALJ, indicates Petitioner arrived
to the examination with her hair “in complete disarray,” exhibited changing facial
expressions, and although her behavior was appropriate in that she was cooperative and
pleasant, she was “quite dependent.” (AR 382.) Exhibit 9F (AR 387, 402), documenting
two different office visits on September 3, 2013, and October 8, 2013, indicate Petitioner
reported seizure activity; was receiving cortisone injections for pain; and that she
experienced hallucinations trying to pull a hydrant out of the ground. The remaining
portions of those same medical records appear to be her medical history, documented in a
consistent fashion as part of the electronic medical record. Exhibit 11F (AR 474, 478,
495) appears to list Petitioner’s medications, chief complaint, past medical history, and
surgical history, and contains no discussion of Petitioner’s affect, appearance, or mood.
Exhibit 26F (AR 751, 752, 758, 763, 724, 770, 775, 780, 784, 789) consists of Dr.
Denagy’s treatment records spanning from January 31, 2014, through January 27, 2015.
5
Exhibit 8F happens to be Dr. Casper’s written report.
MEMORANDUM DECISION AND ORDER - 19
According to Dr. Denagy’s observations over the course of the year, Petitioner’s
symptoms appeared to wax and wane, and did achieve some stability by January of 2015.
In January of 2014, Petitioner presented with akathisia, and was on numerous
psychotropic drugs for her condition. The mental status examination on March 4, 2014,
revealed her to appear “sharper, and more active,” and Dr. Denagy was working to wean
Petitioner off several medications. At that time, Petitioner had no transportation, was
fearful walking to the supermarket, and was afraid of having a seizure. Office visit notes
from April 8, 2014, indicate weight gain from Lithium; tremor; and dystonia. Her anxiety
was still “very profound.” Office notes from May 2, 2014, indicate Petitioner complained
of no motivation, increased seizure frequency, problems with insomnia, and she appeared
upset.
On June 25, 2014, Petitioner reported worsening depression, anxiety with an
increase in pain, the existence of an abnormal sleep study indicating cataplectic-like
events, difficulty sleeping, severe anxiety, and pain. Dr. Denagy observed her to be
anxious and restless, pacing, tangential without pressured speech or flight of ideas, and
with mood-congruent thought, which was depressed. On July 22, 2014, Petitioner
reported slurred speech and hallucinations at night. According to Dr. Denagy, the
discontinuance of prazosin appears to have contributed to the increase in symptoms. Dr.
Denagy recommended Petitioner obtain a service animal. He recorded Petitioner
continued to have full symptom borderline traits and PTSD issues, which had increased;
he noted also her speech was slurred, and that Petitioner appeared more depressed and
MEMORANDUM DECISION AND ORDER - 20
tended toward weepiness.
Dr. Denagy’s remaining medical records continue in the same vein. By January
27, 2015, Dr. Denagy recorded Petitioner was “fairly stable,” but continued to have mood
instability and struggles with fundamental impairments between her sleep disorder and
her seizure attacks. Dr. Denagy noted she continued to have phobia, anxiety, pain, and
difficulty sleeping. Petitioner reported being homebound and having seizure attacks.
Finally, the ALJ relied on Exhibit 28F, which are LCPC Thibodeau’s notes dated
August 28, 2014, to February 19, 2015. (AR 812, 814, 818, 819, 822, 824, 826, 828.)
Thibodeau consistently recorded that, during the counseling sessions, Petitioner had a
pleasant affect, labile 6 mood, and continued physical pain. Thibodeau was treating
Petitioner for depression, anxiety, fear, lack of coping skills, low motivation, episodes of
tearfulness, and an inability to manage her own self-care. The fact Petitioner appeared
“pleasant” does not somehow render her mood instability insignificant.
Other records cited by the ALJ are not treatment records pertaining to Petitioner’s
mental health treatment, and therefore do not contain a detailed description of Petitioner’s
mood. For example, Exhibit 20F and 27F (AR 563, 795), are Petitioner’s sleep study
records. Petitioner is reported as having appropriate affect, judgment, and insight on
many of the records. But, these records are what documented Petitioner’s seizure activity
and sleep disturbances, and do not relate to her mood disorder. Also of note, however, are
what is contained in the records. For example, on February 23, 2015, the technician noted
6
Labile mood refers to a mood state in which a person experiences rapidly shifting and changing
emotions. F.A. Davis, TABER’S CYCLOPEDIC MEDICAL DICTIONARY (18th ed. 1997).
MEMORANDUM DECISION AND ORDER - 21
Petitioner was sleeping for 2 hours at a time, and noticing more pseudo seizures. (AR
795.) On September 5, 2014, another record cited by the AJL, the technician recorded
Petitioner was so sleepy she was falling asleep during the visit. (AR 799.)
In other words, upon a close examination of the medical records cited by the ALJ
to support his conclusion that the physical exam findings contradict Dr. Denagy’s and
LCPC Thibodeau’s opinions, the Court has difficulty finding references supportive of a
conclusion Petitioner exhibited normal affect, normal thought processes, normal
appearance, normal concentration and speech, and a normal ability to relate to stories and
jokes. In that same vein, the Court finds the ALJ’s conclusory opinion that Petitioner’s
treatment history is inconsistent with Dr. Denagy’s and LCPC Thibodeau’s opinions to
be in error. Rather, the treatment history indicates Petitioner sought extensive treatment
from a counselor; her treating physician; a sleep study institute; a pain specialist; and
several other providers on a regular basis over the course of three years.
On the record before the Court, the ALJ did not reasonably reject Dr. Denagy’s or
LCPC Thibodeau’s opinions. Finding these errors significant, the Court declines to
address whether the ALJ erred in his evaluation of P.A. Barbo’s opinion, who rendered
an opinion regarding Petitioner’s physical limitations, and the evaluation of the
examining physicians. (Resp. Brief at 9, Dkt. 16.) The ALJ will be required to review all
of the opinions anew, given Dr. Denagy is a treating source physician, and LCPC
Thibodeau is an “other treating source”.
MEMORANDUM DECISION AND ORDER - 22
3.
Credibility
The last issue on appeal is the ALJ’s credibility assessment. Petitioner argues the
ALJ erred and did not apply SSR 96-7p correctly. Respondent contends the ALJ properly
assessed Petitioner’s credibility by providing specific, clear and convincing reasons
supported by substantial evidence in the record. The Court disagrees, and finds the ALJ
erred.
When assessing the credibility of a claimant's testimony regarding subjective pain
or the intensity of symptoms, the ALJ engages in a two-step analysis. Vasquez v. Astrue,
572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must determine whether there is
“‘objective medical evidence of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms alleged.’” Id. If the claimant has
presented such evidence, and there is no evidence of malingering, the ALJ must give
“‘specific, clear and convincing reasons’” to reject the claimant's testimony about the
severity of the symptoms. Id. At the same time, the ALJ is not “required to believe every
allegation of disabling pain, or else disability benefits would be available for the asking, a
result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989). In evaluating the claimant’s testimony, the ALJ may use “‘ordinary
techniques of credibility evaluation.’” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1224 n.3 (9th Cir. 2010).
For instance, the ALJ may consider inconsistencies either in the claimant's
testimony or between the testimony and the claimant's conduct, id.; “‘unexplained or
MEMORANDUM DECISION AND ORDER - 23
inadequately explained failure to seek treatment or to follow a prescribed course of
treatment,’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); and “whether the
claimant engages in daily activities inconsistent with the alleged symptoms,” Lingenfelter
v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). While a claimant need not “‘vegetate in a
dark room’” in order to be eligible for benefits, Cooper v. Bowen, 815 F.2d 557, 561 (9th
Cir. 1987), the ALJ may discredit a claimant's testimony when the claimant reports
participation in everyday activities indicating capacities that are transferable to a work
setting, see Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Even
where those activities suggest some difficulty functioning, they may be grounds for
discrediting the claimant's testimony to the extent they contradict claims of a totally
debilitating impairment. See Turner, 613 F.3d at 1225.
The ALJ engaged in none of these credibility assessment techniques, instead
substituting his own judgment. The Court finds the reasons the ALJ gave for discrediting
Petitioner’s testimony about the severity of her symptoms do not rely upon inconsistent
statements; failure to seek treatment; or her daily activities. Rather, the ALJ
manufactured reasons unsupported by the record.
Beginning with Petitioner’s seizures, the ALJ discounts Petitioner’s allegations of
disabling seizures, not based upon the medical evidence of record, but because she has
not been observed to have any bruising or other indicia of having suffered injuries due to
these seizures. (AR 28.) The descriptions of Petitioner’s seizures as reported by medical
care providers who actually observed them, however, indicate Petitioner’s seizures
MEMORANDUM DECISION AND ORDER - 24
consist of limb movements, (AR 574), tightening muscles, heavy breathing, and thrashing
(AR 404). In other words, they are not typical of a grand mal type seizure where one
might expect injuries. And, no care provider who reported observing a seizure reported
Petitioner as suffering injuries or bruising after experiencing a seizure. Accordingly, the
lack of bruising is not a clear and convincing reason to discredit the disabling effects of
Petitioner’s seizures, especially where there is ample evidence in the record to indicate
she suffers from psychogenic non-epileptiform seizure episodes.
The ALJ relied upon a note from Petitioner’s physician that it had been a long
time since she had observed a seizure for his finding that Petitioner’s seizures had
lessened in frequency, contrary to Petitioner’s allegations. (AR 28.) The fact Petitioner’s
health care provider had not witnessed a seizure during an office visit is not a clear and
convincing reason to discredit Petitioner. The observation simply indicates Petitioner had
not had a seizure during one of her appointments. Nonetheless, Petitioner continued to
report to all of her care providers that she suffered from seizures throughout every week.
(See AR 530, office visit August 26, 2014, reporting 3-5 seizures a week; AR 536, office
visit September 5, 2014, reporting seizures 3-5 times per week.)
Next, the ALJ discredits Petitioner on the ground that she is never observed to
exhibit confusion, word finding difficulties, or other indicia of postictal symptoms
despite having seizures every day. (AR 28.) Again, there is ample support in the record of
Petitioner’s memory problems, slurred speech, and other similar symptoms. As discussed
previously, Petitioner had difficulty remembering what was discussed in appointments
MEMORANDUM DECISION AND ORDER - 25
(AR 539); could not remember her medication regimen (AR 545); and exhibited slurred
speech during appointments with Dr. Denagy.
The ALJ discredits Petitioner’s allegations of fatigue and sleeplessness on the
ground she is generally not observed to appear fatigued. (AR 28.) However, the medical
records indicate a severe sleep disorder. On October 27, 2013, the Sleep Institute
indicated tests revealed minimal REM sleep, absent slow wave sleep, and severe periodic
limb movement disorder and underlying hypoxia, or low oxygen saturation, all of which
could be expected to produce fatigue and sleeplessness. (AR 447.) Records from the
Sleep Institute on September 5, 2014, indicate Petitioner was falling asleep during the
visit. (AR 536.) On December 11, 2013, Petitioner reported that, while Ambien helped
her fall asleep and stay asleep, she would awake not feeling rested and was sleepy all day.
(AR 513, 554.) Substantial medical evidence supports Petitioner’s allegations, and the
fact her medical care providers did not document whether Petitioner appeared drowsy
during her medical visits 7 is not a clear and convincing reason for discrediting
Petitioner’s testimony.
The ALJ discredits Petitioner’s allegations of severe problems walking and
standing, indicative of pain, on the ground she does not use assistive devices to aid in
ambulation. (AR 28.) However, no doctor has prescribed assistive devices to address
Petitioner’s pain, because her pain does not appear orthopedic in nature such that an
assistive device would help. Rather, Petitioner sought treatment for her pain from the
7
Nor do the EMR forms include a note for the care provider to document whether she appeared
drowsy.
MEMORANDUM DECISION AND ORDER - 26
Pain and Spine Specialists of Idaho, who recommended trigger point injections to address
Petitioner’s complaint of arthralgia in her low back, neck, and feet. (AR 621.)
And last, the ALJ discredited Petitioner’s testimony about the severity of her
mental limitations because she has not sought emergency room treatment or psychiatric
hospitalization. (AR 28.) The ALJ noted also that her treatment was conservative and her
symptoms were controlled by medications and therapy. (AR 27-28.) The lack of
emergency room treatment or hospitalization is not a specific and legitimate reason to
discredit Petitioner’s testimony. Such a reason does not relate to a failure to seek
treatment, Petitioner’s daily activities, or an inconsistency within the medical records
themselves. And the Court finds the ALJ’s characterization of the treatment history as
conservative somewhat out of proportion to the type and amount of medications
Petitioner was prescribed, and the frequency which she sought treament. See note 2,
supra.
The Court finds the ALJ’s reasons for discounting Petitioner’s testimony about the
disabling effects of her symptoms are not supported by substantial evidence in the record.
CONCLUSION
Although Petitioner argues this matter merits an award of benefits, the Court will
remand this case to the Commissioner for proper consideration of step three equivalence
and analysis of Petitioner’s credibility and her medical care providers’ opinions to
determine Petitioner’s RFC at step four, because she is in a better position to evaluate the
medical evidence. On remand, if the Commissioner finds Petitioner’s impairment or
MEMORANDUM DECISION AND ORDER - 27
combination of impairments equals a listing, Petitioner is presumed to be disabled, and
benefits should be awarded. If the Commissioner determines Petitioner’s medical
evidence is insufficient to raise a presumption of disability, she should continue the
disability evaluation to steps four and five, addressing the errors the Court finds with
respect to the ALJ’s analysis of Petitioner’s credibility and her treating physician and
other treating source opinions.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)
Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.
2)
This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion.
3)
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).
September 29, 2016
MEMORANDUM DECISION AND ORDER - 28
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