Feken-Criss v. Commissioner Social Security

Filing 22

OPINION AND ORDER. Signed on 07/17/2012 by Judge James A. Redden. (pvh)

IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF OREGON

CAROL ANN FEKEN-CRISS,

Plaintiff,

3:11-CV- 00740 RE

OPINION AND ORDER

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

Defendant.

REDDEN, Judge:

Plaintiff Carol Ann Feken-Criss ("Feken-Criss") brings this action to obtain judicial
review of a final decision of the Commissioner of the Social Security Administration
("Commissioner") denying her claim for Social Security Disability ("SSD") and Supplemental
Security Income ("SSI") benefits. For the reasons set forth below, the decision of the

I - OPINION AND ORDER

Commissioner is reversed and this matter is remanded for the calculation and payment of
benefits

BACKGROUND
Bom in 1968, Feken-Criss completed a general equivalency degree, and has worked as a
sales clerk, bartender, warehouse worker, and shipping clerk. In June 2005, Feken-Criss filed an
application for disability insurance benefits and SSI benefits, alleging disability since June 28,
2005, due to traumatic brain injUly, cognitive disorder, hearing loss, depressive disorder, posttraumatic stress disorder ("PTSD") degenerative disc disease, and scoliosis. Her application was
denied initially and upon reconsideration. In May 2008, an Administrative Law Judge ("ALl")
found her not disabled. This decision was reviewed and remanded by the Appeals Council.
After a second hearing, the ALl again found Feken-Criss not disabled. Tr. 12. Plaintiffs
request for review was denied, making the ALl's decision the final decision of the
Commissioner.

ALJ's DECISION
The ALl found Feken-Criss had the medically determinable severe impahments of
traumatic brain injury with resulting cognitive disorder, an adjustment disorder, alcohol abuse in
remission, PTSD, degenerative disc disease, and scoliosis with thoracic hypokyphosis and
lumbar hypolordosis. Tr. 15 ..
The ALl determined that Feken-Criss retained the residual functional capacity to perform
a limited range of light work, and is limited to simple, repetitive tasks.
The ALl found that Feken-Criss was unable to perform her past work, but retained the
ability to work as a small products assembler, an office helper, or a meter reader. Tr. 30-31.

2 - OPINION AND ORDER

The medical records accurately set out Feken-Criss's medical history as it relates to her
claim for benefits. The court has carefully reviewed the extensive medical record, and the parties
are familiar with it. Accordingly, the details of those medical records will be set out below only
as they are relevant to the issues before the court.
DISCUSSION

Feken-Criss contends that the ALJ erred by: (I) failing to obtain the testimony of a
medical expert; (2) finding her not entirely credible; (3) improperly weighing physician
testimony; (4) improperly rejecting lay testimony; and (5) failing to show that she retains the
ability to perfotm other work.

I. Medical Expert
Plaintiff argues that the ALJ el1'ed by failing to obtain the testimony of a medical expert.
However, the ALJ offered twice to set over the hearing to obtain the testimony of a medical
expert, and plaintiffs counsel declined both times. Tr. 37-38, 59-60.

II. Credibility
The ALJ must consider all symptoms and pain which "can be reasonably accepted as
consistent with the objective medical evidence and other evidence." 20 C.F.R. §§ 404. 1529(a);
416.929(a). Once a claimant shows an underlying impahment which may "reasonably be
expected to produce pain or other symptoms alleged," absent a finding of malingering, the ALJ
must provide "clear and convincing" reasons for finding a claimant not credible. Lingenfelter v.
Astrue, 504 F.3d 1028,1036 (9 th Cir. 2007)(citing Smolen v. Chatel', 80 F.3d 1273, 128'1 (9th Cir.

1996». The ALl's credibility findings must be "sufficiently specific to pelmit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v.
3 - OPINION AND ORDER

Shalala, 50 F.3d 748, 750 (9th Cir. 1995)(citing Bunnell v. Sullivan, 947. F.2d 341, 345-46 (9th
Cir. 1991)(en banc)).
The ALJ may consider objective medical evidence and the claimant's treatment history,
as well as the claimant's daily activities, work record, and observations of physicians and third
parties with personal knowledge of the claimant's functional limitations. Smolen, 80 F.3d at
1284. The ALJ may additionally employ ordinary techniques of credibility evaluation, such as
weighing inconsistent statements regarding symptoms by the claimant. ld The ALJ may not,
however, make a negative credibility finding "solely because" the claimant's symptom testimony
"is not substantiated affirmatively by objective medical evidence." Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 883 (9th Cir. 2005).
The ALJ found that Feken-Criss's statements "are not credible to the extent they are
inconsistent with the above residual functional capacity assessment." Tr. 19. Plaintiff contends
that the ALJ's analysis is backwards, and the findings regarding credibility are insufficiently
specific.
Plaintiffs argument would be compelling if the ALJ had not provided several other, clear
and convincing, reasons to find plaintiff not fully credible. The ALJ noted plaintiffs ability to
return to work after her injury, and that her treatment had been generally successful at controlling
her symptoms. Tr. 20. The ALJ cited evidence indicating that the plaintiff had not been fully
compliant with treatment recommendations, and that substance abuse may have contributed to
her work attendance issues. Tr. 21. The ALJ found that plaintiff s activities of daily living were
more significant than repolied, and there was evidence of exaggerated pain behavior. Tr. 22.

4 - OPINION AND ORDER

The ALl identified clear and convincing reasons to find Feken-Criss less than fully
credible as to her symptoms and limitations.

III. Examination of David Gostnell, Ph.D., Clinical Neuropsychologist
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.l527(e )(1);
4l6.927(e)(1). If no conflict arises between medical source opinions, the ALl generally must
accord greater weight to the opinion of a treating physician than that of an examining physician.

Lester v. Chater, 81 FJd 821, 830 (9th Cir. 1995). In such circumstances the ALl should also
give greater weight to the opinion of an examining physician over that of a reviewing physician.

Id. But, if two medical source opinions conflict, an ALl need only give "specific and legitimate
reasons" for discrediting one opinion in favor of another. Id. at 830. The ALl may reject
physician opinions that are "brief, conclusOlY, and inadequately supported by clinical findings."

Bayliss v. Barnhart, 427 FJd 1211, 1216 (9th Cir. 2005).
Plaintiff suffered a traumatic brain injUly in a motor vehicle accident in September 1999.
Daniel Erb, M.D., reported in October 2004 that plaintiff continued to have visual deficits,
decreased hearing in the left ear, left-sided weakness with intermittent numbness of the fingers of
the left hand, and excess fatigue. Tr. 458. Dr. Erb stated that she had a disconjugate gaze with
left facial weakness, memOlY deficits, and evidence of frontal lobe dysfunction. Id. Plaintiff was
working full-time at a liquor store. Plaintiff testified that she was fired from this job in June
2005 because of frequent tardiness and absences.
Dr. Gostnell examined plaintiff in November 2005. Tr. 488-501. He administered
standardized tests, and found Feken-Criss cooperative and fully compliant. Tr.493. Dr. Gostnell
stated that the results were "a reliable estimate of her CUll'ent cognitive and intellectual abilities."

5 - OPINION AND ORDER

Tr. 492-93. He concluded that plaintiffs profile was consistent with her histOlY of brain injury,
"given her relative impairment in the areas of language and verbal reasoning, functions that are
mediated by the frontotemporal areas of the brain, where she sustained trauma." Tr.495. He
wrote:
Her difficulties with organization and her incongruent mood
symptoms at the time ofthe evaluation are suggestive of frontal
lobe involvement, also consistent with her injUlY. Although there
has apparently been no previous neuropsychological testing, her
cunent scores suggest a good recovelY from her injuries. She has
only mild impairments of new learning and short-telID recall, with
broadly normal auditory-verbal memOlY. She should have minimal
difficulty retaining and implementing verbal directions and communicating effectively. Her capacity to withstand work-related
stress and to exercise sound judgment are questionable.
Tr. 495-96. Dr. Gostnell found that plaintiff had personality disorder symptoms as well as brain
trauma. Tr. 496. He diagnosed Cognitive Disorder associated with Traumatic Brain Injury; posttraumatic stress disorder, by histOlY; Rule Out Borderline Personality Features; Status-Post Left
Frontotemporal Brain Trauma; and Seizure Disorder. Jd.
The ALJ stated that he gave "little weight" to Dr. Gostnell's opinion as to work-related
stress and the ability to exercise sound judgment. Tr.23. The ALJ said that plaintiff "was able
to sustain full-time work activity as a sales clerk at a liquor store for a significant amount of time
after her head injUlY. The preponderance of the evidence suggests that the claimant retains the
ability to perform simple, ently-level work involving one-to two-step tasks and instructions and
only occasional interaction with the public and coworkers." Jd.
The ALJ's reasoning that plaintiff worked full-time for several years is not a specific and
legitimate reason to discount an examining physician's opinion that her capacity to withstand

6 - OPINION AND ORDER

work-related stress and exercise judgment are questionable. This is p31iicularly true when the
claimant was fired for the very deficit identified by the physician.

IV. 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 FJd 172, 1178 (9 th Cir.
2000), cert. denied, 531 U.S. 1038 (2000). The issue tums on the utility offurther proceedings.
A remand for an award of benefits is appropriate when no useful purpose would be served by
fmiher 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 FJd 1135, 113839 (9th Cir. 2011)(quoting Benecke v. Barnhart, 379 FJd 587, 593 (9 th Cir. 2004». The court
may not award benefits punitively, and must conduct a "credit-as-true" analysis to detelTI1ine if a
claimant is disabled under the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award
of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for
rejecting such evidence; (2) there are no outstanding issues that must be resolved before a
detelTI1ination of disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited. Id. The "credit-as-true"
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
detelTI1ining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett v. Barnhart, 340 FJd 871, 876 (citing Bunnell v. Sullivan, 947 F.2d 871(9th Cir.
2003)(en bane». The reviewing comi should decline to credit testimony when "outstanding
issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9 th Cir. 2010).

7 - OPINION AND ORDER

The AU's failure to credit the opinion of the examining physician is enoneous for the
reasons set out above. The Vocational Expert testified that, if Dr. Gostnell' s opinion is credited,
Feken-Criss would be unable to maintain employment. Tr. 57-58.
Accordingly, this matter is remanded for the calculation and award of benefits.
CONCLUSION

For these reasons, the AU's decision that Feken-Criss is not disabled is not supported by
substantial evidence. The decision of the Commissioner is reversed and this case is remanded
for the calculation and the payment of benefits.
IT IS SO ORDERED.
Dated this ----"-Jd~y of July, 2012.

.'./ &i' ~ ;:
. I L/'.//6e~··

JAMES A. REDEN I '
United States District Judge

8 - OPINION AND ORDER

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