Delgado v. Commissioner of Social Security Administration
Filing
21
Opinion and Order: The final decision of the Commissioner is reversed, and this case is remanded to the Commissioner for the proper calculation and award of SSI on behalf of plaintiff Margarita Delgado. Signed on 2/28/2013 by Judge Ancer L. Haggerty. (sss) Modified filed date on 3/1/2013 (sss).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MARGARITA DELGADO,
Case No. 3:12-cv-00419-HA
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
HAGGERTY, District Judge:
Plaintiff Margarita Delgado seeks judicial review of a final decision by the Commissioner
of the Social Security Administration denying her application for Supplemental Security Income
(SSI). 1 This court has jurisdiction to review the Commissioner's decision under 42 U.S.C. §
405(g). For the following reasons, the Commissioner's decision must be reversed and remanded
for an award of benefits.
STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (I) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
1
Plaintiff also mentions claims for Disability Insurance Benefits and Disabled Widow's
Benefits in the first paragraph of her Opening Brief, but this appears to be an error.
OPINION AND ORDER - 1
detetminable physical or mental impahment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impahment is "of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential evaluation process for
determining if a person is eligible for benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must determine whether the claimant: (I) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impahments; (3) has severe impairments that meet or medically equal any of the listed
impairments that automatically qualifY as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. Id. An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impahments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(1), and
Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
in a significant number in the national economy that the claimant can perfmm given his or her
RFC, age, education, and work experience. Gomez v. Chafer, 74 F.3d 967, 970 (9th Cir. 1996).
If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of
OPINION AND ORDER - 2
awarding benefits. 20 C.F.R. §§ 404.1520(f)(1), 416.920(a). On the other hand, if the
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
detetmining benefits eligibility. Jd
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett, 180 F.3d at 1097; Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v.
Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddickv. Chater, 157 F.3d 715,720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Jd at 720.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was born on September 6, 1970. She completed high school, and has some
college education. She was previously employed as a retail stock clerk.
Plaintiff applied for SSI on August 9, 2009 alleging a disability onset date of August 23,
2007. Her application was denied initially and upon reconsideration. At plaintiff's request, an
Administrative Law Judge (ALJ) conducted a hearing on June 3, 2011. The ALJ heard testimony
OPINION AND ORDER- 3
from plaintiff, who was represented by counsel, as well as an independent medical expert and an
independent vocational expert (VE).
On June 10, 2011, the ALJ issued a decision denying plaintiff's application for benefits.
At step one of the sequential analysis, the ALJ found that plaintiff had not engaged in SGA since
her alleged disability onset date. Tr. 20, Finding 2. 2 At step two, the ALJ found that plaintiff's
affective disorder/schizophrenia was a medically detetminable severe impaitment. Tr. 21,
Finding 2. The ALJ found that plaintiff's substance abuse, cinhosis, obesity, hemi problems, and
tendinitis were non-severe impairments. Tr. 21. After considering plaintiff's severe and nonsevere impairments, the ALJ determined that plaintiff did not have an impairment or combination
of impairments that meets or equals a listed impaitment in 20 C.F.R. Pmi 404, Subpmi P,
Appendix 1. Tr. 22, Finding 3.
The ALJ then detetmined that plaintiff had the RFC to perform the full range of work at
all exetiionallevels, but with the non-exetiionallimitation that she can only have occasional
contact with coworkers. Tr. 24, Finding 4. The ALJ also restricted plaintiff to no public contact
and only simple, repetitive tasks. !d.
Based on plaintiffs RFC and testimony from the VE, the ALJ found that plaintiff was
incapable ofperfmming her past relevant work. Tr. 30, Finding 5. However, the ALJ found that
plaintiff could perform other work existing in significant numbers in the national economy, such
as a night cleaner and circuit board assembler. Tr. 31, Finding 9. Therefore, the ALJ concluded
that plaintiff was not disabled. The Appeals Council denied plaintiffs request for administrative
2
"Tr." refers to the Transcript of the Administrative Record.
OPINION AND ORDER- 4
review, making the AU's decision the final decision of the Commissioner. Plaintiff
subsequently initiated this action seeking judicial review.
DISCUSSION
Plaintiff asserts that the ALJ erred at steps four and five of the sequential analysis by
rejecting the opinions of plaintiffs therapists and a non-examining physician, and improperly
discrediting plaintiffs testimony. Plaintiff contends that these enors resulted in an incomplete
RFC and deficient questioning of the VE. For the following reasons, this court agrees.
1.
Medical opinion evidence
Plaintiff asserts that the AU improperly rejected medical opinion evidence in this case.
Where a treating or examining physician's opinion is not contradicted by another doctor's
opinion, the AU may reject it only by stating clear and convincing reasons supported by
substantial evidence in the record. Regennitter v. Comm'r. ofSoc. Sec. Admin., 166 F.3d 1294,
1298-99 (9th Cir. 1999); Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). If the treating
physician's opinion is contradicted by another doctor, it can be rejected for specific and legitimate
reasons supported by substantial evidence in the record. Jd In general, less weight should be
given to the opinion of a non-examining source than to an examining or treating source. Hill v.
Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (citation omitted). Therefore, the opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies an AU's
rejection of a treating physician's opinion. Lester, 81 F.3d at 831.
A.
Miller Garrison, Ph.D.
An independent psychologist, Dr. Garrison, appeared at plaintiffs hearing and provided
his opinions to the AU about plaintiffs limitations based on a complete review of her medical
OPINION AND ORDER- 5
records. Doctor Ganison never examined or treated plaintiff. Although the ALI explained that
he gave "significant weight" to Dr. Ganison's opinion, plaintiff contends that the ALI improperly
dismissed Dr. Ganison's full assessment of plaintiff's limitations. Defendant responds that the
ALJ incorporated all of Dr. Garrison's limitations into plaintiff's RFC.
During the hearing, Dr. Ganison testified that based upon his review of plaintiff's medical
records, he believed that plaintiff suffered from schizoaffective disorder or bipolar disorder. Tr.
62. He noted good performance of daily activities and generally high Global Assessment of
Functioning (OAF) scores, except for one recent OAF score of 50, which indicates serious
symptoms. Tr. 62-63, 69. He opined that plaintiff had mild restrictions in daily activities,
moderate restrictions in social functioning,' and marked or moderate to marked restrictions in
concentration, persistence, and pace. Tr. 64. He stated that plaintiff should have no contact with
the public and occasional co-worker contact. Tr. 65. As far as plaintiff's difficulties with
concentration, persistence, and pace, Dr. Garrison explained that he was unce1iain about her
limitations because the record contained no diagnosis, testing, or evaluations relating to these
issues, even though plaintiff had received medication for attention deficit disorder. Tr. 65. All
of these limitations are consistent with plaintiff's RFC that she have no public contact, only
occasional contact with coworkers, and only perform simple, repetitive tasks.
The primary point of contention is Dr. Ganison's comment that plaintiff is fairly sensitive
to criticism and would need a "special supervisor and suppmiive kind of co-worker
3
Doctor Ganison initially stated that he believed plaintiff had a moderate to marked
restriction in social functioning, but later assessed only moderate restrictions in response to the
ALI's questioning. Tr. 63-64
OPINION Al'JD ORDER- 6
environment." Tr. 65. Doctor GatTison later explained that he meant that plaintiff would interact
better with a supervisor who was understanding of her mood swings. Tr. 68. Plaintiff contends
that Dr. Ganison's reference to a "special supervisor" constitutes a functional limitation that
should have been included in plaintiffs RFC. On examination by the ALJ, however, Dr.
Garrison agreed that a limitation of only occasional co-worker contact would be an appropriate
limitation for plaintiffs perceived difficulties. Tr. 65. On this record, the restrictions in
plaintiffs RFC adequately provided for the limitations identified by Dr. Garrison, so the ALJ was
not required to state reasons for rejecting the opinion. See Turner v. Comm'r, 613 F.3d 1217,
1222-23 (9th Cir. 201 0) (holding that the ALJ had incorporated the doctor's conclusions into the
claimant's RFC). Accordingly, the comi finds no enor.
B.
Plaintiff's therapists
The patiies agree that plaintiffs therapists, Btyan Olds, M.A. and Michael Flynn, MS
QMHP, are not considered "acceptable medical sources" under 20 C.F.R. § 404.1513(a). Instead,
they are considered "other sources" under 20 C.F.R. § 404.1513(d), and their testimony may be
disregarded only if the ALJ provides "reasons getmane to each witness for doing so." Turner,
613 F.3d at 1223-24 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)).
Opinions from other sources should be evaluated based on the nature and extent of the
source's relationship with the claimant, the source's expertise in relation to the claimant's
impairments, whether the opinion is consistent with other evidence, whether the opinion is
supported by the relevant evidence, how well the source explains the opinion, and any other
relevant factors. SSR 06-03p at *4-5. Information from other sources may "provide insight into
the severity of the impainnent(s) and how it affects the individual's ability to function." !d. at
OPINION AND ORDER - 7
*2. In general, an ALJ is entitled to give greater weight to opinions from "acceptable medical
sources" than other sources. SSR 06-03p at *2. After evaluating the factors for weighing
opinion evidence, however, an opinion from an "other" medical source may outweigh the opinion
of an "acceptable medical source" when the other source has more frequently seen the claimant,
has provided better supporting evidence, and has given a better explanation for his or her
opinion. Id at *5.
First of all, plaintiff contends that her therapists' opinions should be given the same
weight as acceptable medical source opinions because her therapists worked closely with
acceptable medical sources at Lifeworks NW, namely Dr. Lisa Boyd and Dr. Jennifer Bowman.
When an "other source" medical provider works in conjunction with and under the supervision of
an acceptable medical source, the other source opinion may be considered acceptable medical
evidence. Taylor v. Comm'r ofSoc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing
Gomez v. Chafer, 74 F.3d 967, 971 (9th Cir. 1996)). Here, although some of the therapists'
rep01is were signed by one of the physicians at Lifeworks NW, the record does not establish that
the therapists were working under the close supervision of the physicians. Tr. 398, 441. There is
also no indication that the physicians' reviewed, approved, or assisted with the functional
assessments submitted by Flynn and Olds. Therefore, the ALJ properly treated them as "other
source" opinions. That said, plaintiff had a significant treatment relationship with her therapists
and their repo1is were consistent with the physicians' opinions, so the therapists' assessments may
be given greater weight than a traditional lay opinion.
In his decision, the ALJ stated that he gave some weight to Flynn's opinion because it was
generally consistent with the evidence, but rejected his opinion regarding the side effects plaintiff
OPINION AND ORDER- 8
suffers from medication because it conflicted with the medical evidence. Tr. 28. The ALJ
rejected Olds's opinion because it was inconsistent with the record regarding plaintiffs hygiene
and her ability to perform household chores. Tr. 29. Based on the record as a whole, the ALJ's
reasons were insufficient to reject the therapists' conclusions. Flynn's observation that plaintiff
may suffer side effects is supported by his treatment notes in 2009. Tr. 274; see also Tr. 338.
Although Olds did not note any side effects in 2011, plaintiff was on different medication at that
time. Tr. 472. Additionally, the record showing that plaintiff painted her fingernails, wore
dramatic eye makeup, and frequently changed outfits does not necessarily conflict with Olds's
opinion that plaintiff has marked difficulties with personal care and maintaining socially
appropriate behavior. Tr. 473. Flynn also opined that plaintiff has difficulty attending to her
personal care when she is depressed or psychotic. Tr. 177. This is consistent with the record
indicating that plaintiffs ability to perform activities of daily living decreases when her
symptoms increase. See, e.g., Tr. 320, 334-36.
Defendant also suggests that the ALJ properly dismissed the opinions because plaintiffs
symptoms were well controlled by medication. This reason was not cited by the ALJ as part of
his rejection of the therapists' opinions, therefore, this court may not rely on it now. See Bray v.
Comm'r ofSoc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) ("Long-standing principles
of administrative law require us to review the ALJ's decision based on the reasoning and factual
findings offered by the ALJ -not post hoc rationalizations that attempt to intuit what the
adjudicator may have been thinking.") (citations omitted). Moreover, although the record
demonstrates some improvement in plaintiffs hallucinations while on medication, she continued
to have mood instability and breakthrough hallucination symptoms. Therefore, the ALJ did not
OPINION AND ORDER - 9
provide germane reasons for rejecting plaintiffs' therapists' opinions regarding plaintiffs nonexertionallimitations.
3.
Plaintiffs credibility
An ALJ need not believe every allegation of disabling pain or functional limitation
advanced by a claimant. See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The claimant
bears the initial burden of producing objective medical evidence of an underlying impairment or
impairments that could reasonably be expected to produce some degree of symptom. Tommasetti
v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation omitted). If the claimant meets this
threshold, and there is no affi1mative evidence of malingering, then "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." Id; see also SSR 96-7p ("[The ALJ's decision] must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual's statements and reasons for that weight.").
An ALJ may weigh a claimant's credibility using ordinary techniques of credibility
evaluation, including the claimant's reputation for lying, inadequately explained failures to seek
treatment or to follow a prescribed course of treatment, prior inconsistent statements conceming
the symptoms, and other testimony by the claimant that appears less than candid. Tommasetti,
533 F.3d at 1039 (citing Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). A claimant's
statements cannot be rejected solely because the testimony is viewed as unsubstantiated by the
available objective medical evidence. 20 C.F.R.§ 404.1529(c)(2). However, if the ALJ's finding
is supported by substantial evidence, the court "may not engage in second-guessing." Thomas,
278 F.3d at 959.
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The ALJ explained that he considered plaintiffs testimony "with caution" based on her
poor work histmy, history of polysubstance abuse, noncompliance with prescribed treatment, and
inconsistencies between her alleged impahments and her reported daily activities. Tr. 30.
Plaintiffs interest in seeking employment after her alleged onset date is not a convincing
reason to reject her testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007)
(holding that the fact that a claimant tried to work for a short period of time but was unsuccessful
because of his impahments, is not a clear and convincing reason to reject the claimant's
testimony). Rather, the record indicates that plaintiff often tried to work but left her employment
after a few months because of her symptoms, which also explains her spotty work histmy. See,
e.g., Tr. 261,319.
Second, although an ALJ may reject a claimant's credibility based on inconsistent
statements about drug or alcohol abuse, see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th
Cir. 2006) (" [C]onflicting or inconsistent testimony concerning alcohol use can contribute to an
adverse credibility finding."); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (holding
that a claimant's inconsistent statements about substance abuse is a clear and convincing reason
to reject the claimant's testimony), the ALJ in this case appears to have rejected plaintiffs
testimony simply because she has a history of substance abuse. The ALJ noted that plaintiffs
substance abuse "raises the question of whether she is motivated to improve her functional
ability." Tr. 27. The record does not indicate that plaintiff was dishonest or inconsistent
regarding her substance abuse issues, therefore it was improper to reject her testimony because
she suffers from substance abuse issues. In fact, she often candidly explained to her treatment
OPINION AND ORDER- 11
providers that she self-medicated with methamphetamine to control her attention deficit
symptoms, which were later treated with prescribed medication. See, e.g., Tr. 447, 449.
Lastly, the record does not support the ALJ's findings that plaintifffailed to comply with
treatment and can perform more activities than her alleged impairments allow. Plaintiffs
therapist noted that plaintiff had a good track record of medication compliance. Tr. 272. The
ALJ cited only two instances when plaintiff was not consistently taking her medication. Tr. 27.
In December 2009, plaintiff reported that she could not take her medication for a short period
when "she couldn't find them." Tr. 335. In April2010, plaintiff reported that she was not taking
one of her medications because she felt better and "clearer" without it, so her physician decreased
that prescription and increased her other medication doses. Tr. 453. These two instances do not
provide a convincing basis to conclude that plaintiff was noncompliant with her treatment. The
record also indicates that plaintiffs ability to perform daily activities decreases when her
hallucinations and other symptoms increase. Tr. 177-78, 320, 334-36, 472, 474.
4.
Incomplete hypothetical
To meet its burden at step five of the sequential analysis, the Commissioner may rely on
the testimony of aVE. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.
2010) (citation omitted). The ALJ must pose a hypothetical question to aVE that includes all of
the claimant's functional limitations, both physical and mental, that are suppmied by the record.
Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). If the hypothetical fails to take into
account all of the claimant's limitations, it is defective and cannot provide substantial evidence
for the ALJ's ultimate disability determination. Valentine, 574 F.3d at 690. Because the ALJ
rejected plaintiffs testimony and her therapists' opinions, the hypothetical questions proposed to
OPINION AND ORDER- 12
the VE did not include all of plaintiffs limitations and is insufficient to meet the Commissioner's
burden.
5.
Remedy
A remand for further proceedings is unnecessmy if the record is fully developed, and it is
clear from the record that the ALJ would be required to award benefits. Holohan v. 1Vfassanari,
246 F.3d 1195, 1210 (9th Cir. 2001). In cases in which an ALJ improperly rejects the claimant's
testimony regarding his or her limitations, and the claimant would be disabled if his or her
testimony were credited, then that testimony is credited as a matter of law and further
proceedings may be unnecessmy. Lester v. Chafer, 81 F.3d 821, 834 (9th Cir. 1995).
The VE testified that plaintiff would be precluded from competitive employment if she
was absent from work more than two days per month, had more than two angry outbursts at a
supervisor, or a marked limitation in concentration, persistence, and pace. Tr. 74-75. If therapist
Olds's opinion is properly credited regarding plaintiffs likelihood of missing more than two days
of work per month and her marked limitation in concentration, persistence, and pace, the VE's
testimony establishes that plaintiff would be precluded from employment. The record makes
clear that plaintiff cannot perform any SGA that exists in the national economy, and the case
need not be returned to the ALJ for fmiher proceedings. Benecke v. Barnhart, 379 F.3d 587, 595
(9th Cir. 2004).
CONCLUSION
Given the foregoing, the record is fully developed and there are no outstanding issues in
this matter that require resolution. After giving the evidence in the record the effect required by
law, this comi finds that plaintiff is disabled under the Act. The final decision of the
OPINION AND ORDER- 13
Commissioner is reversed, and this case is remanded to the Commissioner for the proper
calculation and award of SSI on behalf of plaintiff Margarita Delgado.
IT IS SO ORDERED.
DATED this
.J~
day ofFebrumy, 2013.
~'uu ~i ctfz,d~
,, _
Ancer L. Haggerty
United States District Judge
OPINION AND ORDER- 14
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