ODell v Commissioner Social Security Admin.

Filing 23

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four, 42 U.S.C. § 405(g), for further proceedings consistent with this Opinion and Order. Signed on 06/06/2014 by Judge Anna J. Brown. See attached 25 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LENA G. ODELL,
Plaintiff,

1:13-cv-00515-BR
OPINION AND ORDER

v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.

ARTHUR WILBER STEVENS, III
MARLENE R. YESQUEN
Black Chapman Webber & Stevens
221 Stewart Avenue
Suite 209
Medford, OR 97501
[phone]
Attorneys for Plaintiff

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER

S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Lena G. ODell seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI)
payments under Title XVI.
This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).

Following a thorough

review of the record, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner pursuant
to sentence four, 42 U.S.C. § 405(g), for further administrative
proceedings consistent with this Opinion and Order.

2 - OPINION AND ORDER

ADMINISTRATIVE HISTORY
Plaintiff filed her applications for DIB and SSI on
January 16, 2009.

Tr. 25.2

The applications were denied

initially and on reconsideration.

An Administrative Law Judge

(ALJ) held a video hearing on August 22, 2011.

Tr. 25.

hearing Plaintiff was represented by an attorney.

At the

Tr. 25.

Plaintiff and a Vocational Expert (VE) testified at the hearing.
Tr. 25.
The ALJ issued a decision on September 16, 2011, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 37-38.

That decision became the final decision

of the Commissioner on January 25, 2013, when the Appeals Council
denied Plaintiff’s request for review.

Tr. 14.

BACKGROUND
Plaintiff was born on June 25, 1975, and was 36 years old at
the time of the hearing.
school.

Tr. 166.

data-entry clerk.

Tr. 139.

Plaintiff completed high

She has past relevant work experience as a
Tr. 36.

Plaintiff alleges she has been disabled since June 30, 2007,
due to bipolar disorder, a bad knee, and “other mental illness
problems.”

Tr. 160.

2

Citations to the official transcript of record filed by
the Commissioner on September 20, 2013, are referred to as “Tr.”
3 - OPINION AND ORDER

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 28-36.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

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.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner’s decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).

See also Brewes v. Comm’r of Soc. Sec.

Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial

evidence is “relevant evidence that a reasonable mind might
4 - OPINION AND ORDER

accept as adequate to support a conclusion.”

Molina, 674 F.3d.

at 1110-11 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009)).

It is more than a “mere

scintilla” of evidence but less than a preponderance.

Id.

(citing Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner’s decision.

Ryan v.

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

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
5 - OPINION AND ORDER

Keyser v. Comm’r of Soc. Sec. Admin., 648

F.3d 721, 724 (9th Cir. 2011).

See also Parra v. Astrue, 481

F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).

See

also Keyser, 648 F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F.3d

at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a

6 - OPINION AND ORDER

regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A ‘regular and continuing basis’ means 8 hours a

day, for 5 days a week, or an equivalent schedule.”
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

The assessment of

a claimant’s RFC is at the heart of Steps Four and Five of the
sequential analysis when the ALJ is determining whether a
claimant can still work despite severe medical impairments.

An

improper evaluation of the claimant’s ability to perform specific
work-related functions “could make the difference between a
finding of ‘disabled’ and ‘not disabled.’”

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a)(4)(iv),

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

Here the

burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.

7 - OPINION AND ORDER

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).

The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).
II.

Evaluation of Drug and Alcohol Abuse
A claimant is not considered disabled if drug addiction or

alcoholism is a contributing factor material to the determination
of disability.

42 U.S.C. § 1382c(a)(3)(J).

See also Monan v.

Astrue, 377 F. App’x 629, 630 (9th Cir. 2010).

Substance abuse

is a material factor when the claimant’s limitations would not be
disabling if the claimant stopped using drugs or alcohol.

20

C.F.R. §§ 404.1535(b), 416.935(b).
Thus, if the claimant is found to be disabled and there is
medical evidence of substance abuse, the ALJ must determine
whether drug addiction or alcoholism “is a contributing factor
material to the determination of disability.”
§§ 404.1535(a), 416.935(a).

20 C.F.R.

To assess the materiality of drug or

alcohol abuse, an ALJ must first conduct the five-step inquiry
without distinguishing the separate impact of alcoholism or drug
addiction.

Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007)

(citing Bustamante v. Astrue, 262 F.3d 949, 954 (9th Cir. 2001)).
8 - OPINION AND ORDER

If the ALJ finds the claimant is not disabled under the
five-step inquiry, the claimant is not entitled to benefits.

If

the ALJ finds the claimant is disabled and there is medical
evidence of her drug addiction or alcoholism, the ALJ should
proceed under § 404.1535 or § 416.935 to determine whether the
claimant would be disabled if she stopped using alcohol or drugs.
Bustamante, 262 F.3d at 955 (internal quotation omitted).
also Parra, 481 F.3d at 746-47.

See

The ALJ must make a second five-

step sequential inquiry to “evaluate which of [the claimant’s]
current physical and mental limitations, upon which [the ALJ]
based [the] current disability determination, would remain if
[the claimant] stopped using drugs or alcohol and then determine
whether any or all of [the claimant’s] remaining limitations
would be disabling.”

20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2).

See also Parra, 484 F.3d at 474.

In other words, the ALJ must

perform the sequential five-step inquiry a second time without
taking the claimant’s substance abuse into account to determine
whether drug addiction or alcoholism “is a contributing factor
material to the determination of disability.”

20 C.F.R.

§§ 404.1535(a), 416.935(a).
The claimant’s substance abuse is a “contributing factor
material” to the disability determination when the claimant’s
remaining limitations would not be disabling if the claimant
stopped using drugs or alcohol.

9 - OPINION AND ORDER

20 C.F.R. §§ 404.1535(b),

416.935(b).

If substance abuse is a “contributing factor

material” to the disability determination, a claimant is not
considered disabled.

42 U.S.C. § 1382c(a)(3)(J).

Parra, 481 F.3d at 746.

See also

In such materiality determinations, “the

claimant bears the burden to prove that drug addiction or
alcoholism is not a contributing factor material to [her]
disability.”

Id.

ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since June 30, 2007, her alleged
onset date.

Tr. 27.

At Step Two the ALJ found Plaintiff has the severe
impairments of “right knee degenerative joint disease and ACL
tear; mood disorder, not otherwise specified/bipolar affective
disorder; history of anxiety disorder, not otherwise
specified/posttraumatic stress disorder (PTSD); attention
deficit-hyperactivity disorder (ADHD); antisocial personality
disorder/personality disorder, not otherwise specified; and
history of polysubstance abuse.”3

Tr. 27.

At Step Three the ALJ found Plaintiff’s impairments do not

3

The Court notes the ALJ based his findings as to these
impairments on the medical diagnoses of Plaintiff that appear in
the record rather than statements in Plaintiff’s applications.
See Tr. 27, 160.
10- OPINION AND ORDER

meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 28.

The ALJ found Plaintiff has the RFC to

perform light work “with the additional limitations:

the work

must be unskilled with only occasional climbing of stairs and
ramps; no climbing of ladders, ropes or scaffolds; frequent
balancing and stooping; occasional kneeling, crouching, and
crawling; only occasional dealings with the public, co-workers,
and supervisors; and no rapid or frequent changes in routine.”
Tr. 30.
At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy such as
assembler, packager, and inspector.

Tr. 37.

Accordingly, the

ALJ found Plaintiff is not disabled and, therefore, is not
entitled to benefits. Tr. 37.

DISCUSSION
Plaintiff contends the ALJ erred by (1) improperly
discrediting Plaintiff’s testimony; (2) improperly rejecting the
opinions of treating physician Jackson Dempsey, M.D., treating
mental-health counselor John Medveckis, M.A., Q.M.H.P., and
examining psychologist Eric Morrell, Ph.D.; (3) improperly
discrediting Plaintiff’s testimony; (4) failing to find
Plaintiff’s combined alleged impairments meet or equal one of the
Listings; and (5) providing an incomplete hypothetical to the VE.

11- OPINION AND ORDER

I.

Plaintiff’s Testimony.
Plaintiff alleges the ALJ erred by failing to give clear and

convincing reasons for rejecting her testimony as to the
intensity, persistence, and limiting effects of her symptoms.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant’s pain testimony only if he provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d at

750 (citing Lester, 81 F.3d at 834.

General assertions that the

claimant’s testimony is not credible are insufficient.

Id.

ALJ must identify “what testimony is not credible and what
evidence undermines the claimant's complaints.”

Id. (quoting

Lester, 81 F.3d at 834).
At the hearing Plaintiff testified her depression is the
primary reason she is unable to work.
12- OPINION AND ORDER

She stated her mental

The

impairments make it difficult for her to get out of bed, but she
also has a hard time sleeping and has periods when she stays up
for days.

Tr. 48.

Plaintiff testified she is homeless and has

been in and out of jail multiple times.

Tr. 49-50.

stated she has a hard time being around people.

Plaintiff

Tr. 49.

Plaintiff testified she has one “good” week a month when she is
able to clean her living space, to make telephone calls, and to
shop for groceries.

Tr. 51-52, 57.

Plaintiff stated she has

uncontrollable crying spells “all the time,” her hands are always
shaking due to nervousness and anxiety, and noise causes her
anxiety and stress.

Tr. 57-60.

Plaintiff also testified she is

unable to work because of right knee pain.

Plaintiff stated her

knee pain makes it difficult for her to stand for more than five
minutes, and it “locks into place” when she sits.

Tr. 65-66.

The ALJ found Plaintiff’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms, but
the ALJ gave Plaintiff’s testimony little weight because he found
her “statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not credible” to the
extent that they are inconsistent with Plaintiff’s RFC.
A.

Mental Impairments

The ALJ appears to have dismissed Plaintiff’s testimony
regarding her mental impairments based on his conclusion that the
record contains evidence that Plaintiff’s “mental symptoms were

13- OPINION AND ORDER

well controlled with medication taken properly.”

Tr. 34.

The

ALJ, however, only points to records from a three-month period
(January to March 2008) to support his conclusion even though the
record reflects Plaintiff’s condition varied significantly during
that period.

For example, in December 2007 Plaintiff reported

she thought Lamictal was helping, but she was still feeling
anxious.

Tr. 527.

In February 2008 Laura Heesacker, M.S.W,

L.C.S.W., stated Plaintiff presented as extremely anxious, that
her hands were trembling, and that she was having difficulty
following thought processes.

Tr. 522-23.

Although in March 2008

Lynn Sullivan, F.N.P., assessed Plaintiff’s bipolar disorder as
“moderate, improved, controlled,” Nurse Sullivan had assessed
Plaintiff’s bipolar disorder as “severe” just one month earlier.
Tr. 515, 520.

In light of the variability of Plaintiff’s

condition during this period, the Court concludes the ALJ’s
conclusion that Plaintiff’s mental impairments are “well
controlled” with medication is not supported by substantial
evidence in the record.

Tr. 34.

Moreover, Plaintiff’s testimony

is supported by the opinion of Dr. Dempsey, Plaintiff’s treating
mental-health physician over seven years, who, as explained more
fully below, opined Plaintiff has severe limitations that make
her unable to work due to her mental impairments.
91.

See Tr. 886-

Dr. Dempsey stated he has treated Plaintiff for

approximately six or seven years and that she is not a

14- OPINION AND ORDER

malingerer.

Tr. 886, 891.

The record also contains additional evidence that supports
Plaintiff’s testimony and Dr. Dempsey’s opinion that she is not
capable of working due to her alleged mental impairments.

For

example, Plaintiff has attempted suicide multiple times, and
medical providers have opined at various time during Plaintiff’s
alleged period of disability that Plaintiff presents a suicide
risk.

Tr. 629, 663, 803, 859, 862.

In a November 2007 letter,

examining psychologist Eric M. Morrell, Ph.D., stated Plaintiff’s
“capacity to hold things together in the long run is what most
concerns me (vs. her capacity to maintain herself for limited
periods of time under observation).”

Tr. 417.

The record also

shows medical providers have assigned Plaintiff with GAF4 scores
ranging between 30 and 50, the highest of which, as noted even by
the ALJ, “indicat[es] serious symptoms.”

Tr. 34, 414, 774, 776,

886.
The Court concludes on this record that the ALJ erred when
he rejected Plaintiff’s testimony as to her alleged mental
impairments because he did not provide clear and convincing
reasons for doing so.

4

A Global Assessment of Functioning (GAF) score rates a
person’s psychological, social, and occupational functioning on a
hypothetical continuum of mental-health illness. See DSM-1V at
34.
15- OPINION AND ORDER

B.

Knee Pain

The ALJ did not find Plaintiff entirely credible as to the
limiting effects of her knee pain.

The ALJ noted in September

2008 that Richard Lotz, F.N.P., gave Plaintiff a cortizone
injection in her knee, which immediately improved her symptoms.
Tr. 32, 427.

He also noted in December 2008 that Plaintiff

presented to an emergency room with an unrelated complaint, but
the attending doctor noted Plaintiff’s gait was normal and her
joints did not have any swelling, stiffness, or redness.
433-34.

Tr. 32,

Furthermore, in May 2009 Plaintiff complained of knee

pain, but the examining physician noted she was bearing weight on
her right leg and was crossing her legs in a way that would put
significant stress on her knee.

At that time Plaintiff’s

ultrasound was normal, and an x-ray showed only moderate
degenerative changes.

Tr. 32, 629.

The Court concludes on this record that the ALJ did not err
when he discredited Plaintiff’s testimony as to the limiting
effects of her knee pain because he provided clear and convincing
reasons for doing so.
II.

Medical Opinion Testimony.
Plaintiff contends the ALJ improperly rejected the opinion

of Dr. Dempsey, Plaintiff’s treating physician.
An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
16- OPINION AND ORDER

treating or examining physicians if the ALJ makes “findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.”

Thomas v. Barnart,

278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989)).

Specific, legitimate reasons

for rejecting a physician’s opinion may include reliance on a
claimant’s discredited subjective complaints, inconsistency with
medical records, inconsistency with a claimant’s testimony, and
inconsistency with a claimant’s daily activities.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

Tommasetti v.

See also Andrews v.

Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995).
When the medical opinion of an examining or treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
278 F.3d 947, 957 (9th Cir. 2002).

Thomas v. Barnhart,

See also Lester v. Chater, 81

F.3d 821, 830-32 (9th Cir. 1995).
Generally, the more consistent an opinion is with the record
as a whole, the more weight an opinion should be given.

20

C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
Medical sources are divided into two categories:
"acceptable" and "not acceptable."
416.902.

20 C.F.R. §§ 404.1502,

Acceptable medical sources include licensed physicians

and psychologists.

20 C.F.R. §§ 404.1502, 416.902.

Medical

sources classified as “not acceptable” include, but are not
17- OPINION AND ORDER

limited to, nurse practitioners, therapists, licensed clinical
social workers, and chiropractors.

SSR 06-03p, at *2.

The

Social Security Administration notes:
With the growth of managed health care in
recent years and the emphasis on containing
medical costs, medical sources who are not
acceptable medical sources, such as nurse
practitioners, physician assistants, and
licensed clinical social workers, have
increasingly assumed a greater percentage of
the treatment and evaluation functions
previously handled primarily by physicians
and psychologists. Opinions from these
medical sources, who are not technically
deemed acceptable medical sources under our
rules, are important and should be evaluated
on key issues such as impairment severity and
functional effects, along with the other
relevant evidence in the file.
SSR 06-03p, at *3.

Factors the ALJ should consider when

determining the weight to give an opinion from those “important”
sources include the length of time the source has known the
claimant and the number of times and frequency that the source
has seen the claimant, the consistency of the source's opinion
with other evidence in the record, the relevance of the source’s
opinion, the quality of the source’s explanation of his opinion,
and the source's training and expertise.

SSR 06-03p, at *4.

On

the basis of the particular facts and the above factors, the ALJ
may assign a not-acceptable medical source either greater or
lesser weight than that of an acceptable medical source.
06-03p, at *5-6.

SSR

The ALJ, however, must provide reasons for the

weight assigned to such opinions to the extent that a claimant or
18- OPINION AND ORDER

subsequent reviewer may follow the ALJ's reasoning.

SSR 06-03p,

at *6.
On July 11, 2011, Dr. Dempsey completed a Mental Health
Impairment Questionnaire regarding Plaintiff in which he
explained he has seen Plaintiff every one-to-three months for
approximately six or seven years.

Dr. Dempsey gave Plaintiff an

Axis I diagnoses of PTSD, bipolar disorder, generalized anxiety,
and polysubstance abuse; gave her an Axis II diagnosis of
borderline personality disorder; and assigned her a GAF score of
40.

Dr. Dempsey noted Plaintiff’s condition has only partially

improved with counseling and medication and stated her prognosis
is poor.

Tr. 886.

Dr. Dempsey opined Plaintiff does not have

the ability to carry out short simple instructions; to maintain
regular attendance and to be punctual; to sustain an ordinary
routine without special supervision; to complete a normal workday
and workweek without interruptions from psychologically-based
symptoms; to accept instructions and respond appropriately to
criticism; to get along with others; to respond appropriately to
normal work stress; or to understand, remember, or carry out
detailed instructions.

Tr. 888-89.

Dr. Dempsey also opined

Plaintiff is extremely limited in her ability to maintain
concentration, persistence, or pace and markedly limited in her
ability to perform daily activities and maintain social
functioning.

Tr. 890.

19- OPINION AND ORDER

Dr. Dempsey also stated Plaintiff had

experienced more than four episodes of decompensation within the
preceding twelve months.

Tr. 890.

Dr. Dempsey opined

Plaintiff’s impairments or treatment would cause her to be absent
from work more than four days per month.

Tr. 891.

The ALJ assigned “very little weight” to Dr. Dempsey’s
opinion and instead gave “significant weight” to the opinions of
nonexamining Disability Determination Services (DDS)5
psychologists Bill Hennings, Ph.D., and Joshua J. Boyd, Psy.D.
Thus, the ALJ found Plaintiff was capable of understanding and
remembering short, simple directions, but not detailed tasks, and
was able to perform simple tasks for a normal workday with
limited co-worker, public, and supervisory contact.
35, 543-60, 639.

Tr. 28-29,

The ALJ based his rejection of Dr. Dempsey’s

opinion on the following:

(1) it was inconsistent with the

treating records; (2) Dr. Dempsey “apparently relied heavily on
the claimant’s subjective complaints, which are not reliable”;
and (3) Dr. Dempsey’s opinion was the product of a pre-printed
form questionnaire.

Tr. 35-36.

Although the ALJ noted Dr. Dempsey’s statement that
Plaintiff has had four or more episodes of decompensation, each
lasting at least two weeks in duration, the ALJ found “there is

5

DDS is a federally-funded state agency that makes
eligibility determinations on behalf and under the supervision of
the Social Security Administration pursuant to 42 U.S.C.
§ 421(a).
20- OPINION AND ORDER

simply no documented evidence of extended periods of
decompensation in the record.”

Tr. 35.

Although Dr. Dempsey did

not provide specific dates, his report of Plaintiff’s episodes of
decompensation is supported by the opinion of Plaintiff’s
treating mental-health counselor, John Medveckis, M.A., Q.M.H.P.
In a July 11, 2011, letter Medveckis stated:

“[A]t least four

times in the past year, [Plaintiff] has had major decompensations
in mood and behavior which were not related to any substance
abuse.”

Tr. 885.

In a January 19, 2011, progress note Medveckis

also assessed Plaintiff’s risk for suicide as high due in part to
“her profound decompensation.”

Tr. 861.

Although the ALJ contends Dr. Dempsey’s opinion is based on
Plaintiff’s subjective complaints, there is not any such
indication in his questionnaire responses.

It is, therefore,

unclear how the ALJ arrived at that conclusion, and, in any
event, the evidence in the record that supports Plaintiff’s
testimony as to her alleged mental impairments similarly supports
Dr. Dempsey’s opinion; e.g., documentation of Plaintiff’s
numerous suicide attempts and GAF scores ranging between 30 and
50 assigned to Plaintiff by medical practitioners.

The fact that

Dr. Dempsey has seen and treated Plaintiff for mental-health
issues continuously for a period of over six years also supports
a conclusion that Dr. Dempsey has more than a sufficient basis
upon which to opine as to the severity of Plaintiff’s mental

21- OPINION AND ORDER

impairments.
As noted, the ALJ also rejected the opinion of Dr. Dempsey
in part because it was elicited through a pre-printed form
questionnaire, which the ALJ describes as containing “a number of
leading questions and similar inducements.”

Tr. 36.

The ALJ,

however, does not identify the questions that support his
conclusion, and, in any event, the Court does not agree.

The

questionnaire is extensive and includes a number of questions to
which Dr. Dempsey added explanations.

For example, Dr. Dempsey

explained the limitations that restrict Plaintiff from being able
to work include the fact that she is easily frustrated,
aggravated, irritated, impulsive; is a poor decision-maker; and
has strong paranoid tendencies.

Dr. Dempsey opined these

limitations “add up to great difficulties interacting with
others, communicating, negotiating, [and] behaving
appropriately.”

Tr. 889.

The Court concludes on this record that the ALJ erred when
he rejected the opinion of Dr. Dempsey because the ALJ did not
provide legally sufficient reasons supported by substantial
evidence in the record for doing so.
III. Plaintiff’s Other Arguments
Plaintiff also asserts the ALJ erred in a number of other
ways.

The Court, however, need not address Plaintiff’s

additional arguments because, as set forth below, the Court

22- OPINION AND ORDER

credits the opinion of Dr. Dempsey as true and, accordingly,
finds Plaintiff’s impairments meet the requirements of Listings
12.04 (affective disorders), 12.06 (anxiety-related disorders)
and/or 12.08 (personality disorders).

The Court, therefore,

concludes on this record that the ALJ would have to find at Step
Two that Plaintiff is disabled.

REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.

Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).

issue turns on the utility of further proceedings.

The

Remand for an

award of benefits is appropriate when no useful purpose would be
served by further administrative proceedings or when the record
has been fully developed and the evidence is insufficient to
support the Commissioner’s decision.

Strauss v. Comm’r, 635 F.3d

1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart, 379
F.3d 587, 593 (9th Cir. 2004)).

The court may not award benefits

punitively and must conduct a “credit-as-true” analysis to
determine whether a claimant is disabled under the Social
Security Act.

Id. at 1138.

Under the “credit-as-true” doctrine, evidence should be
credited and an immediate award of benefits directed when:
(1) the ALJ has failed to provide legally sufficient reasons for
23- OPINION AND ORDER

rejecting such evidence, (2) there are not any outstanding issues
that must be resolved before a determination of disability can be
made, and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled if such evidence were
credited.

Id.

The reviewing court should decline to credit

testimony when “outstanding issues” remain.
F.3d 1032, 1035 (9th Cir. 2010).

Luna v. Astrue, 623

The “credit-as-true” doctrine

is not a mandatory rule in the Ninth Circuit, but it leaves the
court flexibility in determining whether to enter an award of
benefits upon reversing the Commissioner’s decision.

Connett v.

Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)(citing Bunnell v.
Sullivan, 947 F.2d 341 (9th Cir. 1991)(en banc)).
This Court has determined the ALJ erred when he concluded
Plaintiff was not fully credible as to her mental impairments and
when he rejected the opinion of Dr. Dempsey.

The Court,

therefore, credits as true Dr. Dempsey’s opinion because the ALJ
failed to provide legally sufficient reasons for rejecting such
evidence.

As a result, the ALJ would be required to find

Plaintiff disabled based on Dr. Dempsey’s opinion.
The Court, however, points out that there is evidence of
substance abuse in the medical record.

As noted, when there is

medical evidence of substance abuse and the claimant is found to
be disabled, the ALJ must engage in the sequential five-step
inquiry a second time to determine whether drug addiction or

24- OPINION AND ORDER

alcoholism “is a contributing factor material to the
determination of disability.”

20 C.F.R. § 404.1535(a).

Accordingly, there are “outstanding issues that must be resolved
before a [final] determination of disability can be made.”
Smolen, 80 F.3d at 1292.
Accordingly, the Court remands this matter to the ALJ for
further proceedings for the limited purpose of engaging in the
sequential five-step inquiry a second time to determine whether
Plaintiff’s substance abuse is a contributing factor material to
the determination of disability.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner pursuant
to sentence four, 42 U.S.C. § 405(g), for further proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 6th day of June, 2014.

/s/Anna J. Brown
ANNA J. BROWN
United States District Judge

25- OPINION AND ORDER