Spelatz v. Commissioner Social Security Administration
Filing
18
Opinion and Order - The Commissioner's decision is reversed and remanded for further proceedings consistent with instruction herein. Signed on 9/29/11 by Judge Michael H. Simon. (mja) Modified on 9/29/2011 (mja).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ROBERTA A. SPELATZ,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
KATHRYN TASSINARI
Drew L. Johnson P.c.
1700 Valley River Drive
Eugene, OR 97401
Of Attorneys for Plaintiff
DWIGHT C. HOLTON
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
KATHRYN A. MILLER
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, WA 98104-7075
Of Attorneys for Defendant
Case No. 3:1O-CV-06191-S1
OPINION AND ORDER
SIMON, District Judge.
Roberta A. SpeJatz ("Ms. Spelatz") brings this action under 42 U.S.C. § 405(g), seeking
review of a final decision of the Commissioner of the Social Security Administration
("Commissioner") denying her application for disability insurance benefits (DIB). This court has
jurisdiction under 42 U.S.C. § 405(g).
The Commissioner twice has issued final decisions denying Ms. Spelatz's application
since she initially applied for DIB more than a decade ago. Tr. 7-9, 58-60, 432D-432M. She
appeared before the District Court once before, and her case has reached the United States Court
of Appeals for the Ninth Circuit. Tr. 443-48. In her present action, she alleges that the
Commissioner's most recent decision erroneously failed to account for the severity of her mental
impairments and improperly discredited her hearing testimony. The court agrees that the
Commissioner failed to adequately address Ms. Spelatz's mental impairments at steps two and
four of the five-step sequential disability determination process. The Commissioner, however,
provided specific, clear, and convincing reasons to discredit portions of Ms. Spelatz's testimony.
Accordingly, the decision of the Commissioner is reversed and the case remanded to the
Commissioner for further proceedings consistent with the instl'Uctions herein.
I. BACKGROUND
Ms. Spelatz worked for ten years as a massage therapist and, more recently, for two years
as a receptionist. Tr. 93. On September 6, 2001, at the age of 57, she applied for DIB, alleging
disability since Februmy 15,2000. Tr. 58-60.
A.
Procedural History
The Commissioner denied Ms. Spelatz's application initially and on reconsideration.
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Tr. 42-45, 49-51. Ms. Spelatz requested a hearing before an Administrative Law Judge ("ALJ").
Tr. 52. AU John J. Madden Jr. held a hearing on April 7, 2004, and issued a decision denying
Ms. Spelatz's claim on June 15,2004. Tr. 337-51,387-424. The Commissioner's Appeals
Council, however, vacated that decision and remanded for further proceedings in September
2004. Tr. 357-59. AU Madden held a second hearing on May 12, 2005, and issued a new
decision again denying her claim on October 25, 2005. Tr. 427-432, 436-42. The Appeals
Council declined review and the decision became final. Tr. 7-9.
Ms. Spelatz sought review in the District Court. The District Court affirmed the
Commissioner, Spelafz v. Asfrue, No. CV-06-06118-HA (D. Or. Nov. 7, 2007), and Ms. Spelatz
appealed to the Ninth Circuit. In an unpublished memorandum decision issued on April 8,2009,
the Ninth Circuit reversed and remanded to the Commissioner for further proceedings. Tr. 44348; Spelafz v. As/rue, No. 08-35103, 321 Fed. Appx. 689,2009 WL 965901 (9th Cir. April 8,
2009).
Following the Ninth Circuit's reversal, a third hearing was held on April I, 2010, this
time before AU Marilyn S. Mauer. Tr. 540-44. AU Mauer issued a third decision denying
Ms. Spelatz's claim on April 14, 2010. Tr. 432D-432M. The regulations provide that "when a
case is remanded by a Federal court for further consideration, the decision ofthe administrative
law judge will become the final decision of the Commissioner after remand ... unless the
Appeals Council assumes jurisdiction of the case." 20 C.F.R. § 404.984(a). The Appeals Council
did not assume jurisdiction, and, accordingly, ALJ Mauer's decision became the final decision of
the Commissioner. See Petty v. Astrue, 550 F.Supp.2d 1089, 1096 (D. Ariz. 2008) ("Because ...
the Appeals Council has not assumed jurisdiction on its own motion, the AU's decision denying
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[the claimant's] request for benefits constitutes a final decision for purposes of Section 405(g)
jurisdiction."). Ms. Spelatz then sought review in this court.
B.
Medical and Other Evidence
To establish that she is disabled and eligible for benefits, Ms. Spelatz "must produce
complete and detailed objective medical reports of her condition from licensed medical
professionals." Johnson v. Shalala, 60 FJd 1428, 1432 (9th Cir. 1995); 20 C.F.R. § 404.1513(a).
She may "use evidence from other sources to show the severity of [her] impainnent(s) and how it
affects [her] ability to work." 20 C.F.R. § 404.1513(d). Ms. Spelatz alleges that she is disabled
on the basis of lumbar degenerative disc disease, fibromyalgia, depression, and personality
disorder. Pl.'s Br. 4.
Dr. Stephan Schepergerdes treated Ms. Spelatz at the alleged onset of her disability. His
treatment notes show intermittent reports of pain, numbness, stress, fatigue, and depression.
Tr. 201-18, 315-25. Following a visit in September 2001, Dr. Schepergerdes noted that
Ms. Spelatz's "paracervical muscles [are] somewhat tender" and she experienced tension
headaches. Tr. 202. He did not record any repolts of serious pain or numbness. Tr. 202. A record
from January 2002 notes potential degenerative disc problems, but does not list reports of
significant pain, stress, or depression. Tr. 201. Following a visit four months later,
Dr. Schepergerdes observed that Ms. Spelatz's fibromyalgia had been "much worse over the last"
six months. Tr. 325. He also recorded that Ms. Spelatz had some "increased home stress" and
that she took "chronic short naps." Tr. 325. In February 2003, Ms. Spelatz repOlted dizziness and
nausea, as well as seasonal allergies, but did not report neck or back pain, numbness, stress, or
depression. Tr. 318.
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In a letter to the Social Security Administration, Dr. Schepergerdes, provided a capsule
summaty of his assessment of Ms. Spelatz's condition. Ms. Spelatz, he wrote,
has a longstanding history of a tendency to intermittently disabling migraine headaches
and has constant muscle aches and fatigue due to fibromyalgia. She has constant family
stress worsening her depression, which worsens her longstanding insomnia. Again, these
combined conditions result in chronic daytime fatigue, poor stamina and lack of
concentration. In addition[,] Robelia has chronic low back pain due to degenerative disc
disease. Her feet are intermittenly numb during the day constributing to occasional
imbalance. Her hands go numb ove1'l1ight, a side effect of her prior cervical spinal
stenosis requiring a one level fusion in June, 2002.
In spite of taking almost no narcotic pain medication, the combination of the two
antidepressants and an intermittent use of a mild tranquilizer along with her medications
contributes to her fatigue, lack of stamina and concentration difficulties. I do not feel that
she has the physical stamina required to meet the Social Security definition of gainful
employment. Tr. 332.
In a follow-up letter, Dr. Schepergerdes explained that "[i]t is my opinion that it is not one
individual impairment, but the combination of all of them which would not allow [Ms. Spelatz]
to be gainfully employed[.]" Tr. 333.
Dr. Glenn Keiper met with Ms. Spelatz on January 24, 2002, to conduct a neurosurgical
consultation. Tr. 283-86. Ms. Spelatz described neck and lower back pain that is "getting worse."
Tr. 283. The neck pain "radiates from her neck into occipital area" and "keeps her fi'om doing
any of her normal activities out in the yard[.]" Tr. 283. Her lower back pain "is continuous."
Tr. 283. Dr. Keiper reviewed two MRIs conducted earlier in the month. Tr. 285. A cervical spine
MRl revealed "posterior bulging of the disc which narrows the neural foramen bilaterally and
touches the spinal cord. There is significant anterior spurring as well." Tr. 285. An MRI of the
lumbar spine showed "slight degeneration ofthe disc space" but was otherwise normal. Tr. 285.
Dr. Keiper diagnosed cervical spondylosis and lumbar pain. Tr. 285. When Ms. Spelatz asked
Page 5 - OPINION AND ORDER
about her DIB claim, Dr. Keiper noted that he "would not participate in rating her for Social
Security. At the present time I do not see her as disabled based on the findings of her MRI and
physical exam." Tr. 286.
In June 2002, Ms. Spelatz had "anterior cervical discectomy and fusion" surgelY to
address her neck pain and headaches. Tr. 313. According to Dr. Keiper's records, following the
surgery, Ms. Spelatz reported that "her headaches have completely resolved." Tr. 312. Four
months after the surgery, she reported no arm or neck pain and Dr. Keiper recorded that
"Ms. Spelatz is free to return to all of her normal activities without restriction." Tr. 311.
Sharon Beickel, Ph.D, performed a psychological evaluation on Ms. Spelatz on April 12,
2002. Tr. 248. Ms. Spelatz "had labile affect throughout and cried several times in discussing her
current life situation[.)" Tr. 251. She described her mood as "very depressed." Tr. 251. Although
she has no histOlY of suicide attempts, Ms. Spelatz reported that she "has many thoughts of
suicide and has a plan to take pills[.)" Tl'. 251. Dr. Beickel found that there "may be some
malingering involved though it is certainly not conscious on Ms. Spelatz's part. She does not
exaggerate her symptoms and truly feels desperate." Tr. 252. Dr. Beickel diagnosed dysthymic
disorder with strong situational factors, including pain and difficulties with her stepson. Tr. 254.
Dr. Beickle concluded that Ms. Spelatz was "severely depressed and has many suicidal thoughts
with a plan to take pills which she has stockpiled." Tr. 254.
Licensed Social Worker Gail Richards saw Ms. Spelatz one to three times each month
from June 2001 until January 2002. Tr. 229. She reported that Ms. Spelatz "presents with severe
depression and high levels of stress." Tr. 230. Ms. Spelatz "reports that many days she has
difficulty doing anything due to fatigue and pain[.]" Tr. 230. Richards concluded that
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"Ms. Spelatz presents as a very emotionally fragile, physically impaired woman who has minimal
skills to manage the high stress of her life." Tr. 231.
In addition to revealing suicidal ideation to Dr. Beickel, Ms. Spelatz disclosed similar
thoughts to: Dr. Schepergerdes; Richards; physical therapist Paul Shoemaker; and family friend
Edward Summers. In March 2001, Ms. Spelatz reportedly told Dr. Schepergerdes, "must give me
some pills and let me end it all." Tr. 205. She made a similar comment to Shoemaker during a
session in August 2001. Tr. 191. She repeatedly mentioned suicide to Richards. Tr. 241, 243.
Summers noted that Ms. Spelatz feels a "sense of" worthlessness. Tr. 197.
C.
Ms. Spelatz's Testimony
Ms. Spelatz has testified at three hearings since she applied for DIB, although only the
first hearing recorded significant and relevant testimony. Tr. 387-424,427-32,540-44.
Ms. Spelatz stated that her 83 year-old mother took care of her. Tr. 400. She testified that "[w]ith
my leg going numb so often and my fingers and hands going numb so often, and the general
aching with my fibromyalgia, I do my share of the housecleaning ... in sp[u]rts. Fifteen, 20
minutes and I have to sit down and let the leg get the feeling back into it or just plain old rest."
Tr. 401. She also testified to a diminished ability to engage in yard work and gardening: "And
now I can't, I can't do it. I go out for IS or 20 minutes ... I ... work a little bit at pulling weeds
or putting a new plant in and then I have to go in and lay down or stretch out in my recliner
chair." Tr. 401. When asked why she did not engage in exercise as part of treatment for
fibromyalgia, Ms. Spelatz said that exercise "aggravates the problems with my leg of going
numb." Tr. 402.
Ms. Spelatz testified to performing some activities of daily living, such as preparing
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meals, vacuuming, and laundry. Tr. 406-07. She repOlted, however, that she disliked driving, and
that her mother did all of the grocery shopping. Tl'. 407. She also reported that she had to lay
down several times each day and that she frequently had to stop and rest when performing
physical activities. Tr. 401, 406-09.
According to Ms. Spelatz, her headaches "were so bad that I was continually in bed with
them." Tr. 403. She explained that she no longer socialized with a women's group because "I
can't be on my legs as long as" they can. Tr. 404. She explained that she could not work because
"most employers ... expect you to be able to say that you can be there every day and I can't say
that. I can't go eight hours in an office, even with sitting up or standing for a while. I still need to
go and lay down. I nap at least once or twice a day. I mean, I get to the point I can't stay awake."
Tl'. 404-05.
D.
The 2004 ALJ Decision
Following the 2004 hearing, AU Madden issued a decision denying Ms. Spelatz's
application. Tr. 337-51. AU Madden applied the five-step sequential disability determination
process set forth in 20 C.F.R. § 404.1520. Under the five-step process, if the AU finds that a
claimant is or is not disabled at any particular step, the analysis concludes and a determination is
made. If, however, the ALJ cannot conclude whether the claimant is disabled at any given step,
then the AU proceeds to the next step. In the first four steps, the burden of proof rests upon the
claimant to establish disability. Ten)' v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The first step of the five-step sequential disability determination process considers a
claimant's work activity. If a claimant is "doing substantial gainful activity," the claimant is not
disabled. 20 C.F.R. § 404. 1520(a)(4)(i). ALJ Madden found that Ms. Spelatz satisfied step one.
Page 8 - OPINION AND ORDER
Tr.341.
The second step of the disability determination ascertains whether the claimant has a
severe medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At
step two, ALJ Madden found that Ms. Spelatz suffered from several severe impairments:
degenerative disc disease of the lumbar spine, fibromyalgia, and situational depression not
otherwise specified. Tr. 348.
The third step also considers the medical severity ofthe impairments and asks whether
the impairments meet or equal one or more of the listings set fmih in 20 C.F.R. Pt. 404, Subpt. P,
Appx 1. 20 C.F.R. § 404.1 520(a)(4)(iii). If a claimant's impairments meet or equal one of the
listed impairments, "the claimant is conclusively presumed to be disabled." Bowen v. Yuckel't,
482 U.S. 137, 141 (1987). ALJ Madden found that Ms. Spelatz's impairments were "not 'severe'
enough to meet or medically equal ... one of the" listed impairments. Tr. 348.
At the fourth step, the ALJ considers whether the claimant, in light of her impairments,
can still perform her past relevant work. If she can, the ALJ will conclude that the claimant is not
disabled. 20 C.F.R. § 404. 1520(a)(4)(iv). If she cannot, the ALJ will proceed to the fifth and final
step. Here, the ALJ considers whether the claimant can perform other work that exists in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). At this final stage of the analysis, the burden
shifts to the Commissioner to establish that the claimant is capable of performing other work that
exists in significant numbers in the national economy. Teny, 903 F.2d at 1275.
The fourth and fifth steps require the ALJ to determine how the claimant's impairments
affect her ability to perform work. To make this determination, the ALJ formulates the claimant's
residual functional capacity ("RFC"). An RFC "is the most [the claimant] can still do despite [his
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or her] limitations." 20 C.F.R. § 404.1545(a)(1). An RFC "is used at step 4 of the sequential
evaluation process to determine whether an individual is able to do past relevant work, and at
step 5 to determine whether an individual is able to do other work, considering his or her age,
education, and work experience." Social Security Ruling ("SSR") 96-8p.' ALJ Madden found
that Ms. Spelatz retained an RFC to perform "light work that does not involve more than
occasional climbing ropes and scaffolds, or stooping or crawling. She can reach overhead on an
occasional basis." Tr. 350. He did not include any mental limitations in Ms. Spelatz's RFe.
Once the ALJ has formulated the claimant's RFC, he must consider whether the claimant
can, in light of that RFC, perform past or other work. To do so, the ALJ may rely on the
testimony ofa vocational expert ("VE"). 20 C.F.R. § 404.1560(b)(2); 20 C.F.R. § 404.1566(e).
Typically, the AU asks the VE whether, given certain hypothetical assumptions about the
claimant's capabilities, "the claimant can perform certain types of jobs, and the extent to which
such jobs exist in the national economy." Burkhart v. Bowen, 856 F.2d 1335, 1340 n.3 (9th Cir.
1988). In response, the "VE must identify a specific job or jobs in the national economy having
requirements that the claimant's physical and mental abilities and vocational qualifications
would satisfY." Osenbroek v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001).
AU Madden called a VE to testifY at the hearing. Tr. 420-22. ALJ Madden posed two
separate sets of hypothetical assumptions to the VE: "One is pretty much a full range of light
work with some limitations. And the other is from Dr. [Schepergerdes] saying no stamina to
, The Commissioner publishes rulings to clarifY the Social Security Administration's
regulations and policy. See Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991)(en bane).
Although they do not cany the force of law, SSRs are binding on ALJs. Bray v. COIl1I11 'r, 554
F.3d 1219, 1224 (9th Cir. 2009).
Page 10 - OPINION AND ORDER
sustain work." Tr. 421. The VE responded that a claimant who was capable of performing a full
range of light work with some limitations could work as a receptionist, an office helper, or a file
clerk. Tr. 421-22. If, however, the claimant's medical conditions forced her to lie "down for
twice a day, for at least a half hour," like Ms. Spelatz described in her testimony, the VE
concluded that the claimant would not be capable of any work. Tr. 422.
Based on his determination that Ms. Spelatz retained an RFC to perform light work with
some limitations, ALJ Madden adopted the VE's response to his first set of hypothetical
assumptions. He explained that in "response to a hypothetical based on the claimant's vocational
factors and residual functional capacity, the [VEl testified that the claimant could return to her
past relevant work as a receptionist." Tr. 350. Accordingly, he found that Ms. Spelatz did not
meet her burden at step four because her impairments "do not prevent [her] from performing her
past relevant work." Tr. 351. ALJ Madden concluded that Ms. Spelatz was not disabled. Tr. 351.
E.
Appeals Council Remand and the 2005 ALJ Decision
The Social Security Administration Appeals Council vacated ALJ Madden's decision and
remanded Ms. Spelatz's claim for further proceedings. Tr. 357-60. On remand, the Appeals
Council required that ALJ Madden resolve two issues. First, the Appeals Council noted that ALJ
Madden found, at step two, that Ms. Spelatz "has a mental impairment that results in mild
restrictions of activities of daily living [and] moderate difficulties in maintaining social
functioning[.]" Tr. 358. But the "decision did not consider the indicated nonexertionallimitations
or their effect, if any, on the claimant's maximum residual functional capacity." Tr. 358. On
remand, the Appeals Council instructed the ALJ to give "further consideration to the claimant's
maximum residual functional capacity and provide appropriate rationale with specific references
Page II - OPINION AND ORDER
to evidence[.]" Tl'. 358.
Second, the Appeals Council found that the ALJ did not "give reasons germane to each
witness for discounting or rejecting" the testimony and evidence from third-party, lay witnesses,
including Ms. Spelatz's mother and husband, and her friend, Summers. Tr. 358. On remand, the
Appeals Council directed the ALJ to address "lay witness testimony and statements in
accordance with requirements established" by the Ninth Circuit. Tr. 359.
ALJ Madden issued a new decision in 2005 addressing both issues identified by the
Appeals Council. Tr. 433-42. Rather than incorporate Ms. Spelatz's mental impairments into an
assessment of her maximum RFC, ALJ Madden reversed his finding that Ms. Spelatz's suffered
from severe mental impairments at all. He attributed his finding in the 2004 decision that Ms.
Spelatz suffered from mental limitations to a "technical, writing error." Tr. 439. Ms. Spelatz, he
found in his new decision, "has only mild difficulty with daily living activities, social
functioning, concentration, persistence, and pace .... Indeed, she has no severe mental
impairment." Tr. 439.
Regarding the lay witness testimony, ALJ Madden briefly considered the testimony and
evidence of Ms. Spelatz's mother, husband, and friend, Summers. He attributed some weight to
their testimony, but did not, in particular, credit their assessments that Ms. Spelatz had limited
capacity to perform most activities of daily living. Tr.439-40.
ALJ Madden again found that Ms. Spelatz retained an RFC to perform light work and
concluded again that she was not disabled. Tr. 441-42. Following this decision, the Appeals
Council declined further review and the decision became final. Tr. 7-9. Ms. Spelatz sought
review in the District Court, which affirmed ALJ Madden's decision. Spelatz v. Astl'ue, No. CVPage 12 - OPINION AND ORDER
06-06118-HA (D. Or. Nov. 7, 2007).
E.
Ninth Cil'cuit Memol'Rudum Decision
Ms. Spelatz appealed to the Ninth Circuit. In an unpublished memorandum decision, the
Ninth Circuit reversed. Tr. 443-48. The Court identified two errors. First, it rejected ALJ
Madden's reassessment of Ms. Spelatz's mental impairments in which he concluded that she had
no severe mental impairment. To the contrary, the Ninth Circuit noted, the examining
psychologist, Dr. Beickel, and the social worker, Richards, both found that Ms. Spelatz suffered
from severe depression. Tr. 445. Moreover, the Ninth Circuit stated that "the ALJ failed to
explain adequately why he altered his original conclusion that [Ms. Spelatz's] depression was a
severe impairment; the change was not a 'technical writing error' but was, instead, substantive."
Tr. 445.
The Ninth Circuit also reversed ALJ Madden's finding, made in both the 2004 and 2005
decisions, that Ms. Spelatz's hearing testimony was not credible. Tr. 445-46. ALJ Madden, the
Court found, failed to perform the two-step credibility analysis set out in Callan v. Bowen, 799
F.2d 1403 (9th Cir. 1986) (per curiam) and Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir.
1996). Based on those two errors, the Ninth Circuit remanded the case to the Commissioner.
F.
2010 ALJ Decision
Following the remand, a new ALJ, Marilyn Mauer, issued a third decision. Tr. 432D-
432M. ALJ Mauer followed the five-step sequential analysis required by the Social Security
Administration regulations. As in ALJ Madden's 2005 decision, ALJ Mauer found that
Ms. Spelatz's alleged mental impairments were neither "severe," according to the analysis
required at step two, nor relevant to the formulation of her RFC, according to the procedure set
Page 13 ~ OPINION AND ORDER
out in step four. Ms. Spelatz's mental impairments, AU Mauer wrote, "did not cause more than
minimal limitation in [her] ability to perform basic mental work activities and were therefore
non-severe." Tr. 432G. Accordingly, AU Mauer concluded that Ms. Spelatz was not disabled.
Tr. 432L-432M.
1.
Severity of Ms. Spelatz's mental impairments at step two
To find that Ms. Spelatz's mental impairments were "non-severe" at step two, ALJ Mauer
applied the "special technique" set forth in 20 C.F.R. § 404.1520a. Tr. 432G. To apply this
technique, "the reviewer must determine whether the applicant has a medically determinable
mental impairment, rate the degree of functional limitation for four functional areas, determine
the severity of the mental impairment (in part based on the degree of functional limitation), and
then, if the impairment is severe, proceed to step three of the disability analysis[.]" Keyser v.
Coml11 'I', No. 10-35371,2011 WL 2138237 *2 (9th Cir. June 1,2011) (internal citations
omitted). The four functional areas are "[a]ctivities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation." 20 C.F.R. §
404.1520a(c)(3). The degree of functional limitation is rated on a five-point scale: "None, mild,
moderate, marked, and extreme." 20 C.F.R. § 404.1520a(c)(4).
AU Mauer first determined that Ms. Spelatz suffered from medically determinable
mental impairments of "dysthymic disorder with strong situational factors, dyssonmia,
adjustment disorder with depressed mood, and personality disorder [not otherwise specified.]"
Tr. 432G. AU Mauer then rated the degree of functional limitation those mental impairments
imposed on Ms. Spelatz.
In the first area, ALJ Mauer found that "Ms. Spelatz had no limitation" in the activities of
Page 14 - OPINION AND ORDER
daily living. Tr. 4320. Ms. Spelatz reported "being able to perform household chores, go
shopping for food, and prepare meals for her family[.]" Tr. 4320. In the second area, social
functioning, ALJ Mauer found that Ms. Spelatz had mild limitation. ALJ Mauer noted that
Ms. Spelatz described herself as an "introvert," but remarked that she also "stayed in touch with
her four surviving children" and appeared '''cooperative' upon examination in April 2002."
Tr. 4320. In the third area, ALJ Mauer found that Ms. Spelatz had no limitation in concentration,
persistence, or pace. ALJ Mauer observed that Ms. Spelatz demonstrated "logical thinking,"
normal understanding, and persistence during mental testing at an examination in April 2002.
Tr. 4320. In the fourth area, ALJ Mauer found that Ms. Spelatz had no reported episodes of
decompensation. Tr. 4320. Based on those findings, ALJ Mauer concluded that because
"Ms. Spelatz' [s1medically determinable mental impairments caused no more than 'mild'
limitation in any of the first three functional areas and 'no' episodes of decompensation which
have been of extended duration in the fouth area, they were non-severe." Tr. 4320.
2.
Effect of Ms. Spelatz's mental impairments on hel· RFC at step four
ALJ Mauer also found that Ms. Spelatz's mental impairments imposed no limitations on
her RFC. Tr. 432H. In so finding, ALJ Mauer reached the same conclusion reached by ALJ
Madden in both his 2004 and 2005 decisions. ALI Mauer reviewed evidence submitted by Ms.
Spelatz's friend, Summers, her social worker, Richards, and evaluating psychologist Dr. Beickel.
She also reviewed the reports of psychological consultants Peter LeBray, Ph.D, and Bill
Hennings, Ph.D. ALJ Mauer decided that Summer's opinion was entitled to no weight and
Richards and Dr. Beickel's opinions were entitled to "partial weight." Tr. 432K. She afforded
great weight to the psychological consultants. Tr. 432K.
Page 15 - OPINION AND ORDER
Discussing Edwards and Richards, ALJ Mauer noted that neither was a licensed physician
or psychologist. Tr. 432J. She found that both based their assessments of Ms. Spelatz's "pain and
emotional stress" on Ms. Spelatz's own reports and noted that those reports were not fully
supported by objective medical findings. Tr. 432K. With respect to Edwards, ALJ Mauer wrote
that his "conclusory opinion is outside his area of expertise and is reserved to the Social Security
Commissioner." Tr. 432K.
Turning to Dr. Beickel, ALJ Mauer observed that her "report largely focuses on the
situational stressors within Ms. Spelatz' [s] home, rather than in a work setting." Tr. 432K. With
respect to Ms. Spelatz's suicidal ideation, ALJ Mauer determined that "such symptoms" were
tied to Ms. Spelatz's relationship with her stepson. Tr. 432K. ALJ Mauer gave "partial weight to
Dr. Beickel's assessment to the extent it supports the conclusion that Ms. Spelatz'[s] medically
determinable mental impairments impose no more than mild limitation on her ability to perform
basic work activities." Tr. 432K. Based in part on the patiial weight she accorded to Dr. Beickel
and Richards, ALJ Mauer concluded that Ms. Spelatz's mental impairments "did not cause more
than minimal limitation in [Ms. Spelatz's] ability to perform basic mental work activities."
Tr. 432G.
3.
Ms. Spelatz's credibility
Like ALJ Madden, ALJ Mauer also found pOliions of Ms. Spelatz's hearing testimony
not credible. In particular, ALJ Mauer rejected a statement that Ms. Spelatz made during the
2010 hearing, where she claimed, for the first time, to have been fired from her job as a
receptionist because she "was so terribly depressed I had mood swings .... [The boss] said I was
not a good people person." Tr. 542. ALJ Mauer explained that "[nlo corroborating evidence or
Page 16 - OPINION AND ORDER
testimony was offered to support her assertion. Her self-serving testimony offered for the first
time at her third hearing is simply not credible." Tr. 4321.
AU Mauer also found that Ms. Spelatz's "pain symptoms are not as disabling as she
alleges." Tr. 432J. In reaching this finding, AU Mauer identified several reasons to question
Ms. Spelatz's testimony. She observed that Ms. Spelatz's "subjective complaints are not fully
supported by the objective medical findings contained within the evidence ofrecord[.]" TI'. 4321.
In addition, AU Mauer noted that Ms. Spelatz did not seek frequent medical treatment for back
pain. Tr. 432J. Further, AU Mauer noted that Dr. Keiper had stated that Ms. Spelatz "had a
normal gait and full range of motion in all extremities." TI'. 432J. Finally, AU Mauer observed
that Ms. Spelatz "was able to cope with her pain symptoms without any prescription pain
medication[.]" TI'. 432J.
II. STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is based on the propel' legal
standards and the findings are supported by substantial evidence. Hammock v. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389,401 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197,229 (1938)). Where the evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be upheld. Sample v. Schll'eiker, 694 F.2d
639,642 (9th Cir. 1982).
III. DISCUSSION
In her brief to the court, Ms. Spelatz identifies two alleged errors: (1) the AU erroneously
Page 17 - OPINION AND ORDER
failed to included her mental impairments at steps two and four of the sequential analysis; and (2)
the ALJ filed to give clear and convincing reasons for rejecting her hearing testimony. PI.'s Br.
19,25. Regarding Ms. Spelatz's first alleged error, the court agrees that the ALJ failed
adequately to consider Ms. Spelatz's mental impairments at steps two and four. With respect to
the second alleged error, however, the court finds that the ALJ provided clear and convincing
evidence for discrediting Ms. Spelatz's testimony.
A.
Ms. Spelatz's Mental Impairments
Ms. Spelatz first argues that ALJ Mauer erred in failing to include her mental
impairments at steps two and four of the sequential analysis. As described above, ALJ Mauer
found that Ms. Spelatz suffered from medically determinable mental impairments, but she
decided that those impairments did not affect Ms. Spelatz's ability to work: "Ms. Spelatz'[s]
medically determinable mental impairments of dysthymic disorder with strong situational factors,
dyssomnia, adjustment disorder with depressed mood, and personality disorder NOS, considered
singly and in combination, did not cause more than minimal limitation in her ability to perform
basic mental work activities and were therefore non-severe." Tr. 4320. Accordingly, ALJ Mauer
concluded at step two of the sequential analysis that Ms. Spelatz's mental impairments were not
severe. Tr. 4320. At step four, the ALJ concluded that Ms. Spelatz's mental impairments were
not significant enough to warrant inclusion in Ms. Spelatz's RFC or to be posed in a hypothetical
to aVE. Tr. 4321. Neither conclusion is supported by substantial evidence.
Ms. Spelatz argues that ALJ Mauer's decision was driven by her credibility evaluations of
Dr. Beickel and Richards. If Dr. Beickel and Richards are "properly credited, their opinions
establish that [Ms. Spelatz's] work would be significantly affected by her emotional problems,
Page 18 - OPINION AND ORDER
such that her memory, persistence, and social functioning would be affected." Pl.'s Br. 25.
Ms. Spelatz is correct. ALJ Mauer's decision to minimize Ms. Spelatz's mental impairments
depended in part on the diminished weight she accorded to the opinions of Dr. Beickel and
Richards. Accordingly, before turning to an analysis of ALJ Mauer's conclusions at steps two
and four, the court considers the ALJ's evaluation of the evidence from Dr. Beickel and
Richards.
1.
Evaluations of Dr. Beickel and Richards's opinions
a.
Standards
An AU must determine the weight to give each source of evidence. 20 C.F.R. §
404.1527(d), (:I). Opinions from "acceptable medical sources" - such as licensed medical doctors
and psychologists - may generally be accorded more weight than those from "other sources" such as social workers, family, and friends. Gomez v. Chatel', 74 F.3d 967,970 (9th Cir.), cert.
denied, 519 U.S. 881 (1996); 20 C.F.R. § 404.1513. An AU may wholly or partially discount the
opinion of any source, but the regulations and Ninth Circuit case law have established specific
standards an AU must apply in order to do so. See 20 C.F.R. § 404.1527 (standards for
evaluating medical opinions); Lester v. Chatel', 81 F.3d 821, 830-33 (9th Cir. 1995) (standards
for evaluating acceptable medical sources); Dodrill v. Sha1((1(1, 12 F.3d 915, 918-19 (9th Cir.
1993) (standards for evaluating other sources).
The standards for evaluating the opinion of an acceptable medical source, such as a
licensed psychologist like Dr. Beickel, differ depending on the extent of contact the source had
with the claimant and whether the source is contradicted by other sources in the record. Lester,
81 F.3d at 830-33. In general, an AU should "give more weight to the opinion of a source who
Page 19 - OPINION AND ORDER
has examined [the claimant] than to the opinion of a source who has not examined" the claimant.
20 C.F.R. § 404.1527(d)(I). An ALJ may, however, reject the opinion ofa doctor who has
examined the claimant in favor of the differing opinion of a non-examining doctor if the ALJ
"gives specific, legitimate reasons for doing so, and those reasons are supported by substantial
record evidence." Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995), cert. denied sub nom.,
Roberts v. Chatel', 517 U.S. 1122 (1996). The standard is more exacting if no medical opinion
contradicts an examining doctor's opinion. Then, the ALJ may only reject the examining doctor's
opinion only ifshe provides '''clear and convincing' reasons" for doing so. Lester, 81 F.3d at 830
(quoting Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)).
An ALJ must also consider evidence and testimony from "other sources" concerning "a
claimant's ability to work." Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). Family
members, like Ms. Spelatz's mother and husband, who are "in a position to observe a claimant's
symptoms and daily activities are competent to testifY as to her condition." Dodrill, 12 F.3d at
918-19. Moreover, the opinions of licensed medical professional, such as social workers like
Richards, "are impotiant and should be evaluated on key issues such as impairment severity and
functional effects[.]" SSR 06-03p. Accordingly, an ALJ may not disregard testimony from other
sources "unless he 01' she expressly determines to disregard such testimony and gives reasons
germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
With the lone exceptions of Dr. Hennings and Dr. LeBray, the reviewing psychologists
who did not personally evaluate Ms. Spelatz, ALJ Mauer wholly or partially discounted the
repOlis of nearly evety source who addressed Ms. Spelatz's mental impairments. Tr. 432J-432L.
In particular, the ALJ gave only "partial weight" to the opinions of Dr. Beickel and Richards.
Page 20 - OPINION AND ORDER
Tr. 432K. Her assessment of the evidence from Dr. Beickel and Richards is important because
both personally evaluated Ms. Spelatz and both concluded that she was severely depressed. ALJ
Mauer did not provide sufficient reasons to discount either conclusion.
b.
Dr. Deickel
ALJ Mauer gave "partial weight to Dr. Beickel's assessment to the extent it SUppOlts the
conclusion that Ms. Spelatz'[s] medically determinable mental impairments impose no more than
mild limitation on her ability to perform basic work activities." Tr. 432K. ALJ Mauer based her
evaluation of Dr. Beickel's opinion on two factors.
First, she observed that "Dr. Beickel's report largely focuses on the situational stressors
within Ms. Spelatz's home, rather than in a work setting." Tr. 432K. This observation is not a
reason to discount Dr. Beickel's report. Since Ms. Spelatz was not working at the time of the
evaluation- and had not worked for two years - Dr. Beickel cannot be faulted for failing to
repolt "situational stressors" not relevant to her subject's circumstances'>
Second, ALJ Mauer found that Ms. Spelatz's mental symptoms, reported by Dr. Beickel,
were tied to her relationship with her stepson: Ms. Spelatz's symptoms of severe depression and
suicidal thoughts "began when her stepson came to live with" her. Tr. 432K. As with the first
factor, however, ALJ Mauer's contention that Ms. Spelatz's symptoms are "situation specific"
ALJ Mauer makes much of the fact that Dr. Beickel's report does not consider
Ms. Spelatz's social functioning outside of her home. She writes, for example, that "there is no
indication that Ms. Spelatz'[s] mental symptoms significantly limit her social functioning outside
of her immediate family." Tr. 432K. But the record makes clear that Ms. Spelatz rarely leaves her
home and has few friends. Rather than serve as a reason to discount Dr. Beickel, or any other
source, this evidence suggests that Ms. Spelatz's mental impairments limit her social
functioning: "[E]vidence that an individual is markedly withdrawn or seclusive suggests a
greatly reduced capacity for close contact and interaction with other people." SSR 85-16.
2
Page 21 - OPINION AND ORDER
does not provide a reason to discount Dr. Beickel's medical opinion. Dr. Beickel's report clearly
tied Ms. Spelatz's mental impairments to her living situation: Dr. Beickel diagnosed Ms. Spelatz
with dysthymia "with [s]trong [s]ituational [fjactors." Tr. 254. In short, ALJ Mauer's reasons for
discounting Dr. Beickel's opinion are neither clear and convincing nor supported by substantial
evidence. They do not provide a basis to accord Dr. Beickel's opinion only "partial weight."
c.
Richards
TUl'lling to Richards, ALJ Mauer afforded her opinion only "partial weight ... insofar as
it documents Ms. Spelatz'[s] pain complaints over time." Tr. 432K. ALJ Mauer discounted
Richards's opinion for two reasons. First, she noted that "Ms. Richards is [not] a licensed
physician 01' psychologist[.]" While an ALJ may afford less weight to other sources as compared
to medically acceptable sources, the mere fact that Richards is not a doctor is not a reason to
diminish the credibility of her opinion. As noted above, the Social Security Administration has
held that the opinions of health care professionals such as social workers "are important and
should be evaluated on key issues such as impairment severity and functional effects[.]" SSR 0603p.
Second, ALJ Mauer found that Richards's "assessment of Ms. Spelatz's pain and
emotional stress is apparently based entirely on her own report, which ... is not fully supported
by objective medical findings." Tr. 432K. Richards's assessment of Ms. Spelatz was based on
treatment sessions occurring one to three times per month from June 2001 until at least January
2002. Tr. 229-44. In some cases, Richards repeated Ms. Spelatz's comments in her notes. But
Richards's opinion of Ms. Spelatz's condition appears to be based not entirely on Ms. Spelatz's
self-report, as ALJ Mauer asserts, but on the basis of her own observations made over many
Page 22 - OPINION AND ORDER
months. Tr. 232-44. Moreover, Richards's opinion is not an outlier. Her conclusion ~ that
Ms. Spelatz suffers from severe depression and is emotionally fragile - is corroborated by both
Dr. Beickel and Dr. Schepergerdes. Tr. 332, 527. Neither factor identified by ALJ Mauer is a
germane reason to discount Richards's opinion. ALJ Mauer erred in evaluating the weight to give
both Dr. Beickel and Richards.
2.
Step two analysis
The second step of the sequential analysis requires the ALJ to determine "whether the
claimant has a medically severe impairment 01' combination of impairments." Bowen, 482 U.S. at
140-41. A severe impairment is one that "significantly limits [the claimant's] physical 01' mental
ability to do basic work activities." 20 C.F.R. § 404.1520(c). An impairment can be "found 'not
severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal
effect on an individual[']s ability to work.'" Smolen v. Chatel', 80 F.3d 1273, 1290 (9th Cir.
1996) (quoting SSR 85-28). The "step-two inquhy is a de minimis screening device to dispose
of groundless claims." Id (citing Bowen, 482 U.S. at 153-54).
The Commissioner has developed a "special technique" for evaluating the severity of
mental impairments. 20 C.F.R. § 404. 1520a(a). That technique requires the ALJ to "rate the
[claimant's] degree of functional limitations in four areas: activities of daily living; social
functioning; concentration, persistence,
01' pace;
and episodes of decompensation." Hoop(d v.
Astrue, 499 F.3d 1071, 1078 (9th Cir. 2007). If the ALJ rates the claimant's "limitation in the
first three functional areas as 'none'
01'
'mild' and 'none' in the fourth area," the Commissioner
"will generally conclude that [the claimant's] impairment(s) is not severe[.]" 20 C.F.R. §
404.1520a(d)(I). The regulations require the ALJ to provide a rating and written assessment in
Page 23 - OPINION AND ORDER
each functional area, but do not require "specific findings of the claimant's functional
limitations." Hoopai, 499 FJd at 1078.
As explained above, ALJ Mauer made findings in each of the four functional areas. Her
ratings in the first three areas are not supported by substantial evidence. In the first, activities of
daily living, ALJ Mauer found that "Ms. Spelatz had no limitation." In particular, ALJ Mauer
noted that Ms. Spelatz could "perform household chores, go shopping for food, and prepare
meals[.]" Tr. 432G. ALJ Mauer's rating of "no limitation" is not supported by substantial
evidence. Contrary to ALJ Mauer's rating, Dr. Beickel rep011ed that Ms. Spelatz "has had a loss
offunctioning over the past year." Tr. 253. Dr. Beickel observed that Ms. Spelatz's mother does
most of the shopping and food preparation and that Ms. Spelatz no longer attends a social group.
Tr. 253. Both Ms. Spelatz's husband and her mother noted that she rarely prepared meals, did not
get any exercise, did not participate in social activities, and only left the house on weekends.
Tr. 122-27, 167-71. Even the non-examining, consulting psychologists, Dr. Hennings and
Dr. LeBray, to whom ALJ Mauer afforded "great weight," found that Ms. Spelatz suffered a
"mild" degree of limitation in this area. 3 Tr. 267, 301, 432K.
In the second functional area, social functioning, ALJ Mauer concluded that "Ms. Spelatz
had mild limitation." Tr. 432G. In support ofthis assessment, ALJ Mauer noted that Ms. Spelatz
stayed in touch with her children, was cooperative upon examination, and demonstrated adequate
interpersonal skills. This evidence, however, is not substantial when considered within the
context of the complete record. See Holohan v. Massanari, 246 FJd 1195, 1205 (9th Cir. 2001)
3 Dr. Hennings and Dr. LeBray did not provide written explanations for their findings, but
merely checked boxes under each of the four functional areas. Both checked the "mild" box for
the first functional area.
Page 24 - OPINION AND ORDER
(the fact that disability claimant experiences some positive indications does not necessarily mean
claimant's impairments are not serious when considered in context). Although Dr. Beickel noted
that Ms. Spelatz had "adequate" interpersonal skills, she also noted that Ms. Spelatz "had labile
affect throughout [the examination] and cried several times in discussing her current life
situation[.]" Tr. 251. Richards wrote that "Ms. Spelatz presents as a velY emotionally fragile ...
woman who has minimal skills to manage the high stress of her life." Tr. 231. Ms. Spelatz's
family reported that she participated in no social activities. Tr. 122, 168. Dr. Beickel,
Dr. Schepergerdes, Richards, Summers, and Shoemaker all reported that Ms. Spelatz had
threatened suicide. Tr. 191,197,205,243,251.
While both Dr. Hennings and Dr. LeBray indicated that Ms. Spelatz had only mild
limitations in social functioning, Tr. 267, 301, the Ninth Circuit made clear that in light of all the
evidence, those conclusions could not be relied on: The "record does not support the nonexamining psychologists' conclusions. Both Dr. Beickel, the examining psychologist, and Gail
Richards, Claimant's therapist, repOlied that Claimant suffers from severe depression." Tr. 445.
Indeed, in his first decision, ALJ Madden rated Ms. Spelatz's limitations in social functioning as
"moderate." Tr. 348. In light on the entire record, substantial evidence does not support ALJ
Mauer's conclusion that Ms. Spelatz has only mild limitations in social functioning. See
Holohan, 246 F.3d at1207 ("reviewing physician who merely checked boxes without giving
supporting explanations" is insufficient to outweigh the opinion of a treating doctor).
The third functional area is concentration, persistence, and pace. ALJ Mauer found that
Ms. Spelatz had "no limitation" in this area. She noted that Ms. Spelatz was "fully oriented"
during an examination, "demonstrated a 'moderately good' memOlY and fund of knowledge,"
Page 25 - OPINION AND ORDER
and "demonstrated logical thinking[.]" Tr. 432G. Again, however, in the context of the complete
record, substantial evidence does not support ALJ Mauer's finding of "no limitation."
Dr. Beickel wrote that Ms. Spelatz's "memOlY shows some impairment[.]" Tr. 252. Richard
noted that Ms. Spelatz had trouble concentrating. Tr. 229. Dr. Schepergerdes wrote that Ms.
Spe\atz experienced "chronic daytime fatigue, poor stamina and lack of concentration" and
opined that she did not have the "physical stamina required to meet the Social Security definition
of gainful employment." Tr. 332. Even the reviewing psychologists, Dr. Hennings and Dr.
LeBray, found that Ms. Spelatz had mild limitations in this area. Tr. 267, 301. In light ofthe full
record, substantial evidence does not support ALJ Mauer's finding of no limitation.
The fourth and final functional area is episodes of decompensation. "Episodes of
decompensation" are "exacerbations or temporary increases in symptoms or signs accompanied
by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily
living, maintaining social relationships, or maintaining concentration, persistence, or pace." 20
C.F.R. Pt. 404, Subpt. P, Appx 1, § 12.00C(4). ALJ Mauer found that Ms. Spelatz had not
experienced episodes of decompensation. The record SUppOltS that finding.
Upon review of the record, the court concludes that substantial evidence does not support
ALJ Mauer's conclusion, at step-two of the sequential analysis, that Ms. Spelatz's mental
impairments are not severe. Dr. Beickel, who evaluated Ms. Spelatz, and Richards, who treated
her over many months, both found that Ms. Spelatz suffered from severe depression. On remand,
the Commissioner should consider that evidence, the other evidence discussed above, and the
entirety of the record.
Page 26 - OPINION AND ORDER
3.
Step four analysis
At step four of the sequential analysis, an ALJ decides whether a claimant can, on the
basis of her RFC, perform past relevant work. ALJ Mauer found that Ms. Spelatz could perform
"a range of light work on a sustained and competitive basis[.l" Tr. 432L. She assessed no
limitations based on Ms. Spelatz's medically determinable mental impairments. Ms. Spelatz
argues that this was error and that ALJ Mauer "should have included Plaintiffs mental
limitations ... in the residual functional capacity assessment and in the hypothetical question
presented to the VE[.]" PI. 's BI'. 24. The court agrees. Medical professionals, as well as family
and friends, reported that Ms. Spelatz is severely depressed and suicidal, has poor social skills
and a limited ability to concentrate, and is cln'onically fatigued.
Mental impairments are part of the RFC assessment. 20 C.F.R. § 404. I 545(a)(4). In the
event that a mental impairment is severe, according to the step two analysis, but does not meet or
equal the listings in 20 C.F.R. Pt. 404, Subpt. P, Appx I, § 12.00 according to the step three
analysis, "the determination of mental RFC is crucial to the evaluation of [a claimant's1capacity
to do substantial gainful activity[.]" 20 C.F.R. Pt. 404, Subpt. P, Appx I, § 12.00A. In SSR 8516, the Commissioner described the issues that must be "considered when an individual with a
mental impairment requires an assessment of the residual functional capacity ... in order to
determine the individual's capacity to engage in basic work-related activities." Those issues
include depression, withdrawn behavior, anxiety, tension, activities of daily living, and the ability
to relate to others. SSR 85-16.
As explained above, once an ALJ has developed a claimant's RFC, the ALJ may pose
hypothetical questions to a VE in order to determine whether the claimant is capable of her past
Page 27 - OPINION AND ORDER
or other work. Osenbrock, 240 FJd at 1162. Just as the claimant's RFC must include all of a
claimant's impairments, "[h]ypothetical questions asked of the vocational expert must 'set out
all of the claimant's impairments.'" Lewis, 236 FJd at 517 (quoting Gallier v. Sec'y ofHealth
and Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987)). In the event that an ALI's hypothetical
question fails to account for all the claimant's impairments, the "opinion of the vocational expert
that claimant has a residual working capacity has no evidentiary value." Gallant v. Heckler, 753
F.2d 1450, 1456 (9th Cir. 1984).
The evidence, explicated in detail above, suggests that Ms. Spelatz suffers from mental
impairments, including severe depression, that at least moderately limits her social functioning.
Ms. Spelatz's depression, as well as her relationship with her family and inability to complete
some activities of daily living, are the types of issues identified in SSR 85-16 as potentially
affecting a claimant's ability to engage in "basic work-related activities." Accordingly, ALI
Mauer elTed in failing to include those limitations in Ms. Spelatz's RFC and in hypothetical
questions posed to the VE.
The court concludes that Commissioner erroneously discounted the opinions of
Dr. Beickel and Richards, and based its findings at steps two and four on less than substantial
evidence. On remand, the Commissioner is instructed to re-evaluate the weight accorded to
Dr. Beickel's report. The Commissioner should either give the report full weight or provide clear
and convincing reasons for finding it less than fully credible. The Commissioner is also
instructed to re-evaluate Richards's evidence and either give it full weight or provide germane
reasons for finding it less than fully credible. The Commissioner is further instructed to reassess
the severity of Ms. Spelatz's mental impairments under step two in light of all the evidence and
Page 28 - OPINION AND ORDER
especially the evidence discussed herein. Finally, the Commissioner is instructed to properly
account for Ms. Spelatz's mental impairments when formulating her RFC and in the hypothetical
questions posed to the VE.
B.
Ms. Spelatz's Credibility
1.
Standards
Ms. Spelatz also argues that ALJ Mauer failed to give clear and convincing reasons for
discrediting much of her hearing testimony. The Ninth Circuit has developed a two-step process
for evaluating the credibility of a claimant's testimony about the severity and limiting affect of
her symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ "must
determine whether the claimant has presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms alleged."
Lingenfelter v. Astrlle, 504 F.3d 1028, 1036 (9th Cil'. 2007). When doing so, the claimant "need
not show that her impairment could reasonably be expected to cause the severity of the symptom
she has alleged; she need only show that it could reasonably have caused some degree of the
symptom." Smolen, 80 F.3d at 1282.
Second, "if the claimant meets the first test, and there is no evidence of malingering, 'the
ALJ can reject the claimant's testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so. '" Lingenjelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is "not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible." Dodrill, 12 F.3d at 918. Those reasons must be "sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony."
Page 29 - OPINION AND ORDER
Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). Further, the AU "may not discredit the
claimant's testimony as to subjective symptoms merely because they are unsupported by
objective evidence." Lester, 81 F.3d at 834.
Both the Social Security Administration and the Ninth Circuit have set f01ih a variety of
tools that an AU may use to assess a claimant's credibility. In SSR 96-7p,4 the Commissioner
recommended assessing the claimant's daily activities; the location, duration, frequency, and
intensity ofthe individual's pain or other symptoms; factors that precipitate and aggravate the
symptoms; the type, dosage, effectiveness, and side effects of any medication the individual takes
or has taken to alleviate pain or other symptoms; treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; and any measures other than
treatment the individual uses or has used to relieve pain or other symptoms.
In addition to the factors identified in SSR 96-7p, the Ninth Circuit has said that an AU
"may consider ... ordinary techniques of credibility evaluation, such as the reputation for lying,
prior inconsistent statements concerning the symptoms, ... other testimony by the claimant that
appears less than candid [and] unexplained or inadequately explained failure to seek treatment or
to follow a prescribed course of treatment." Smolen, 80 F.3d at 1284.
2.
Ms. SpeJatz's testimony
AU Mauer made two primary credibility findings concerning Ms. Spelatz's hearing
testimony. First, AU Mauer rejected Ms. Spelatz's statement, made at the 2010 hearing, that she
4
The Commissioner published SSR 96-7p in part "to explain the factors to be
considered in assessing the credibility of the individual's statements about symptoms; and to state
the importance of explaining the reasons for the finding about the credibility of the individual's
statements in the disability determination or decision."
Page 30 - OPINION AND ORDER
"was fired from her previous job as a receptionist due to mood swings and her inability to be a
good 'people person.'" Tr. 4321. Second, ALJ Mauer found that Ms. Spelatz's "pain symptoms
are not as disabling as she alleges." Tr. 432J. Ms. Spelatz argues that the ALJ's reasons for
making these findings are not clear and convincing. PI. 's Br. 25. The court disagrees and
concludes that ALJ Mauer's two primary credibility findings are supported by specific, clear, and
convincing reasons.
ALJ Mauer first addressed Ms. Spelatz's testimony, made during the 2010 hearing, that
she "was fired from her previous job as a receptionist due to mood swings and her inability to be
a good 'people person. '" Tr. 432I. ALJ Mauer rejected this testimony because it was "offered for
the first time" at the third hearing. During her first hearing in 2004, Ms. Spelatz testified that she
left her job as a receptionist because she "wasn't needed any more." Tr. 394. ALJ Mauer also
noted that in "previous hearings, [Ms. Spelatz] has indicated that she is incapable of full-time
work due to pain symptoms[.]" Tr. 4321. The identification of prior inconsistent statements
provides a sufficient reason to discredit a claimant's testimony. Smolen, 80 FJd at 1284. ALJ
Mauer did not err in discrediting Ms. Spelatz's 2010 hearing testimony.
ALJ Mauer next addressed Ms. Spelatz's pain symptoms testimony. ALJ Mauer provided
several specific, clear and convincing reasons to find that Ms. Spelatz's "pain symptoms are not
as disabling as she alleges." Tr. 432J. First, ALJ Mauer explained that Ms. Spelatz's "subjective
complaints are not fully supported by the" record. Tr. 432I. In particular, ALJ Mauer cited
Dr. Keiper's findings that Ms. Spelatz had a full range of motion, only slight degeneration in her
lumbar spine discs, and was not disabled based on his assessment. Tr. 432J. Next, she observed
that Ms. Spelatz "was able to cope with her pain symptoms without any prescription
Page 31 - OPINION AND ORDER
medication[.]" Tr. 432J. Finally, ALJ Mauer noted that Dr. Schepergerdes recommended
relatively conservative treatment for Ms. Spelatz's pain, including over-the-counter medication
and massage. Tr. 432J. These reasons are consistent with the credibility evaluation tools set forth
in SSR 96-7p and Ninth Circuit case law. See, e.g., TOm111((Setti v. Astrue, 533 F.3d 1035, 1039
(9th Cir. 2008) (evidence that claimant pursued a conservative course oftreatment for alleged
pain is sufficient to discount claimant's testimony).
Ms. Spelatz also contends that ALJ Mauer "erred in relying on the lack of objective
medical evidence regarding the severity of [her] pain." PI.'s Br. 26. Ms. Spelatz is correct that an
ALJ may not discredit a claimant's testimony based solely on a lack of objective medical
evidence. See Lester, 81 F.3d at 834 (quoted above); Bunnell v. Sullivan, 947 F.2d 341, 346-47
(9th Cir. 1991) (en banc) ("the adjudicator may not discredit a claimant's testimony of pain ...
solely because the degree of pain alleged by the claimant is not supported by objective medical
evidence") (emphasis added); Reddickv. Chatel', 157 F.3d 715, 722 (9th Cir. 1998) (that "the
Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely
because they are unsupported by objective medical evidence") (emphasis added). The Ninth
Circuit has never held, however, that an ALJ may not cite a dearth of objective medical evidence
as one factor among others suggesting that a claimant's testimony is not credible: "Although lack
of medical evidence cannot form the sale basis for discounting pain testimony, it is a factor that
the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (emphasis added). ALJ Mauer did not err when she cited the lack of medical evidence as
one of several reasons to discount Ms. Spelatz's pain testimony.
ALJ Mauer correctly applied the regulations and this circuit's case law to discredit
Page 32 - OPINION AND ORDER
Ms. Spelatz's 2010 hearing testimony and her subjective pain testimony. One statement in AU
Mauer's decision, however, may be too broad. In introducing her discussion of Ms. Spelatz's
pain testimony, ALI Mauer wrote that Ms. Spelatz's "statements concerning the intensity,
persistence and limiting effects of [her alleged] symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment." Tr. 4321. AU Mauer does
not specifically identifY which of Ms. Spelatz's many symptoms she is addressing in this
statement. If, as seems likely based on the subsequent discussion, ALI Mauer means only that
Ms. Spelatz's pain testimony is not credible, this statement is a permissible introduction to that
discussion. If, on the other hand, this statement is intended as a general finding that rejects all of
Ms. Spelatz's symptom testimony, including her testimony regarding symptoms other than pain,
such as fatigue and anxiety, it is impermissibly broad. Ninth Circuit case law and SSR 96-7p do
not permit such general credibility findings. Les/er, 81 F.3d at 834 ("General findings are
insufficient"); SSR 96-7p ("It is not sufficient to make a conclusory statement that 'the
individual's allegations have been considered' or that 'the allegations are (or are not) credible."').
Instead, the AU must "specifically identifY the testimony she or he finds not to be credible[.]"
Holohan, 246 FJd at 1208. On remand, the agency should clarifY the extent of its credibility
findings.
/II
III
III
III
III
Page 33 - OPINION AND ORDER
IV. CONCLUSION
The Commissioner's decision is REVERSED and the case is REMANDED for further
proceedings consistent with instructions herein.
IT IS SO ORDERED.
~
Dated this
day of September, 2011
7/1[
~~
Michael H. Simo~
United States District Judge
Page 34 - OPINION AND ORDER
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