Wentzek v. Commissioner Social Security Administration
Filing
19
Opinion and Order - The Commissioner's decision is REVERSED and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. Signed on 9/3/2013 by Judge Michael H. Simon. (mja)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JULIE RENEE WENTZEK,
Plaintiff,
Case No. 3:12-cv-01687-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
Lisa R.J. Porter, KP Law LLC, 16200 S.W. Pacific Highway, Suite H-280, Portland, OR 97224.
Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, and Adrian L. Brown, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue,
Suite 600, Portland, OR 97204; Lars J. Nelson, Special Assistant United States Attorney, Office
of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S
221A, Seattle, WA 98104. Attorneys for Defendant.
Michael H. Simon, District Judge.
Julie Rene Wentzek seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”). Because the Commissioner’s decision is not based on substantial
evidence, the decision is REVERSED and this case is REMANDED for further proceedings.
BACKGROUND
A. The Application
Ms. Wentzek protectively filed an application for DIB on November 16, 2004, alleging
disability beginning on October 10, 2003, due to narcolepsy, depression, anxiety, chronic fatigue
syndrome, fibromyalgia, post-traumatic stress disorder (“PTSD”), mitral valve prolapse with
regurgitation, and back pain. Tr. 184, 197-98. The Commissioner denied her application initially
and upon reconsideration; thereafter, she requested a hearing before an Administrative Law
Judge (“ALJ”). Tr. 148-51. After an administrative hearing, held on February 20, 2008, the ALJ
found Ms. Wentzek to be not disabled. Tr. 33-40, 639-79. The Appeals Council accepted
Ms. Wentzek’s request for review; ultimately, the Appeals Council vacated the ALJ’s 2008
decision and remanded the matter for further proceedings (“Remand Order”). Tr. 25-27.
On May 4, 2011, a second administrative hearing was held, at which Ms. Wentzek was
present and testified, as did a vocational expert (“VE”). Tr. 680-716. On May 16, 2011, the ALJ
issued a second decision finding Ms. Wentzek not disabled. Tr. 15-23. The Appeals Council
denied review, making the ALJ’s 2011 decision the final decision of the Commissioner. Tr. 5-7.
Ms. Wentzek now seeks judicial review of that decision.
Page 2 – OPINION AND ORDER
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled” within the meaning of the Social Security Act
(“Act”). Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially
dispositive. 20 C.F.R. § 404.1520(a)(4). The five-step sequential process asks the following
series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§ 404.1520(a)(4)(i). This activity is work involving significant mental or
physical duties done or intended to be done for pay or profit. 20 C.F.R.
§ 404.1510. If the claimant is performing such work, she is not disabled
within the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(i). If the
claimant is not performing substantial gainful activity, the analysis
proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. § 404.1520(a)(4)(ii). Unless expected to result in
death, an impairment is “severe” if it significantly limits the claimant’s
physical or mental ability to do basic work activities. 20 C.F.R.
§ 404.1521(a). This impairment must have lasted or must be expected to
last for a continuous period of at least 12 months. 20 C.F.R. § 404.1509. If
the claimant does not have a severe impairment, the analysis ends. 20
C.F.R. § 404.1520(a)(4)(ii). If the claimant has a severe impairment, the
analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If the
impairment does not meet or equal one or more of the listed impairments,
the analysis proceeds beyond step three. At that point, the ALJ must
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evaluate medical and other relevant evidence to assess and determine the
claimant’s residual functional capacity (“RFC”). This is an assessment of
work-related activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c). After the ALJ
determines the claimant’s RFC, the analysis proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant cannot perform his or her past
relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c). If the claimant
cannot perform such work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d
at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S.
at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100.
At step five, the Commissioner must show that the claimant can perform other work that exists in
significant numbers in the national economy, “taking into consideration the claimant’s residual
functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R. § 404.1566
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v). If, however, the Commissioner
proves that the claimant is able to perform other work existing in significant numbers in the
national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180
F.3d at 1099.
Page 4 – OPINION AND ORDER
C. The ALJ’s Decision
The ALJ performed the sequential analysis in his May 16, 2011 decision. Tr. 15-23. At
step one, the ALJ found that Ms. Wentzek had not engaged in substantial gainful activity from
the alleged onset date, December 10, 2003, through the date last insured, December 31, 2008.
Tr. 17. At step two, the ALJ concluded that Ms. Wentzek’s narcolepsy, mild degenerative disc
disease of the lumbar spine, anxiety disorder, depressive disorder, and alcohol abuse in remission
were severe impairments. Id. At step three, the ALJ ruled that Ms. Wentzek did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in the regulations. Tr. 16-17.
The ALJ next assessed Ms. Wentzek’s RFC. The ALJ found that Ms. Wentzek retained
the capacity to perform light work, but with the following limitations: “occasional climbing of
ramps and stairs”; occasional stooping, kneeling, crouching, and crawling; no climbing of
ladders, ropes, or scaffolds; no balancing; and no concentrated exposure to extreme heat or
hazards. Tr. 18-22. In addition, she “was limited to unskilled, simple, routine, repetitive work.”
Id. At step four, the ALJ determined that Ms. Wentzek’s RFC rendered her unable to perform her
past relevant work. Tr. 22. At step five, based on the VE’s testimony, the ALJ concluded that
Ms. Wentzek could perform jobs that exist in significant numbers in the national economy.
Tr. 22-23. Thus, the ALJ found Ms. Wentzek not disabled under the Act. Tr. 23.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla, but less than a preponderance.” Bray v. Comm’r Soc. Sec. Admin.,
Page 5 – OPINION AND ORDER
554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995) (internal quotation marks omitted)). It means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id.
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record and the court may not substitute its judgment for
that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “However, a
reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal
quotation marks omitted)). The reviewing court, however, may not affirm the Commissioner on a
ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226-26
(citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
DISCUSSION
Ms. Wentzek argues that the ALJ erred by: (1) not obtaining evidence from a medical
expert, in violation of the Appeals Council’s Remand Order; (2) improperly rejecting her
subjective symptom testimony; (3) improperly discrediting the medical opinion evidence; (4)
inadequately developing the record; and (5) failing to include all of her limitations in the RFC,
such that the ALJ’s step five finding was invalid.1
1
Ms. Wentzek’s counsel often neglected to adequately raise or sufficiently brief the
ALJ’s alleged errors; in fact, she seemingly acknowledges this shortcoming. See Pl.’s Opening
Br. 28-29. For instance, Ms. Wentzek’s counsel asserts that the ALJ erred because Ms. Wentzek
“clearly meets listing 4.12.” Id. at 28. However, Ms. Wentzek’s counsel did not provide any
argument or evidence in support of this assertion. Id. An independent review of the record
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A. Compliance with the Remand Order
Ms. Wentzek first argues that the ALJ committed by reversible error by failing to comply
with the Appeals Council’s Remand Order. A remand order from the Appeals Council may
include detailed instructions concerning the scope of the remand, the evidence to be adduced,
and the legal or factual issues to be addressed. See 20 C.F.R. § 404.977(a); see also 20 C.F.R.
§ 404.983. The ALJ “shall take any action that is ordered by the Appeals Council and may take
any additional action that is not inconsistent with the Appeals Council’s remand order.” 20
C.F.R. § 404.977(b).
In this case, the Appeals Council held that the ALJ’s 2008 decision was erroneous in
several respects, particularly in its assessment of Ms. Wentzek’s mental impairments. Tr. 25.
Accordingly, the Appeals Council reversed the ALJ’s 2008 decision and remanded the case, in
relevant part, to “[o]btain evidence from a medical expert to clarify the nature and severity of the
claimant’s mental impairments and any work-related limitations imposed by these impairments.”
Tr. 26.
On remand, the ALJ did not consult a medical expert or otherwise acquire any additional
evidence regarding Ms. Wentzek’s mental impairments, finding instead that a “psychological
evaluation done in [July] 2008 is [the] best evidence of the claimant’s mental status during the
period she was insured.” Tr. 15. Nevertheless, the ALJ reassessed the five-step sequential
process, including Ms. Wentzek’s RFC and the hypothetical questions posed to the VE, and
found that she was not disabled. Tr. 15-23. As such, Ms. Wentzek is correct that the ALJ erred
reveals that listing 4.12, which pertains to “peripheral arterial disease,” is not met in the case at
bar. See 20 C.F.R. Part 404, Subpart P, App. 1, § 4.12. In any event, because the claimant bears
the initial burden of proof, the court need “not consider matters on appeal that are not
specifically and distinctly argued.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161
n.2 (9th Cir. 2008) (citation and internal quotations omitted).
Page 7 – OPINION AND ORDER
by not complying with the Remand Order. Nevertheless, failure to follow a remand order is not a
proper basis for the reviewing court to reverse or remand the ALJ’s final decision regarding a
claimant’s disability. See Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1136–1138
(9th Cir. 2011).
Rather, “[t]he ALJ’s errors are relevant only as they affect that analysis on the merits. A
claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no
matter how egregious the ALJ’s errors may be.” Id. at 1138. Thus, irrespective of whether the
ALJ complied with the Remand Order, the issue before this Court is whether the ALJ’s decision
is based on substantial evidence and is free of legal error. Id.; see also Wick v. Astrue, 2009 WL
2393106, *2-15 (D.Or. July 31, 2009) (ALJ failed to comply with a remand order but reversal
was only warranted to the extent that the court found harmful error in regard to the other issues
expressly raised and briefed by the claimant) (citing Sullivan v. Hudson, 490 U.S. 877, 885-86
(1989)); Hernandez-Devereaux v. Astrue, 614 F.Supp.2d 1125, 1134 (D.Or. 2009) (“to the extent
that the ALJ here failed to properly follow the [remand] instructions, she committed reversible
error unless the errors were harmless, i.e., they would not have affected the ALJ’s ultimate
conclusions”) (citation omitted). Accordingly, the Court will review Ms. Wentzek’s other
allegations of error in order to determine whether the ALJ’s failure to follow the Remand Order
warrants reversal.
B. Credibility of Ms. Wentzek’s Testimony
Ms. Wentzek next contends that the ALJ did not provide a clear and convincing reason
for rejecting her subjective symptom testimony regarding the extent of her impairments. The
Ninth Circuit has developed a two-step process for evaluating the credibility of a claimant’s own
testimony about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue,
Page 8 – OPINION AND ORDER
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. Astrue, 504 F.3d 1028,
1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc))
(internal quotations omitted). 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 v. Chater,
80 F.3d 1273, 1282 (9th Cir. 1996).
Second, “if the claimant meets this 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.’” Lingenfelter, 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 v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
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 Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
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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. See SSR 96-7p, available at 1996 WL 374186.
Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary
techniques of credibility evaluation, such as the claimant’s 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. 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, 466 F.3d at 883.
Applying the first step of the credibility framework, the ALJ found that Ms. Wentzek’s
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms.” Tr. 19. In applying the second step, however, the ALJ found Ms. Wentzek’s
“statements concerning intensity, persistence, and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above [RFC] assessment.” Id. In support of
this finding, the ALJ reasoned that Ms. Wentzek’s “daily activities are not suggestive of
debilitating symptoms.”2 Tr. 21.
At the hearing, Ms. Wentzek testified that she spends her days taking care of her son,
who suffers from emotional problems, and her household. Tr. 687-99; see also Tr. 221-44, 307-
2
The ALJ conflated his analysis of Ms. Wentzek’s credibility with his evaluation of the
medical opinion evidence. See Tr. 19-22. As such, the ALJ’s assessment of Ms. Wentzek’s
credibility was terse and did not specifically identify which subjective symptom testimony was
not credible. For this reason alone, the ALJ’s credibility determination was erroneous. See
Dodrill, 12 F.3d at 918; Orteza, 50 F.3d at 750.
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14. She explained that she is unable to work due to stress, anxiety, pain and fatigue. Tr. 691, 70205; see also Tr. 221-44, 307-14. Specifically, Ms. Wentzek explained that, while she continues to
perform certain household chores, it takes her all day, with numerous breaks, due to her pain and
fatigue. Tr. 221-22, 255-61, 303-05; see also Tr. 466 (Ms. Wentzek “voiced having to constantly
experience an overwhelming urge to lie down and not wake up. She added that she had to force
herself to attend to her responsibilities”). Ms. Wentzek also described difficulty with memory
and focus, to the point that she was unable adequately to learn her son’s sixth grade homeschool
curriculum. Tr. 706-07.
According to the ALJ, Ms. Wentzek’s activities of daily living belied her subjective
symptom testimony. An ALJ may discredit a claimant’s testimony when he or she reports
activities of daily living that “indicat[e] capacities that are transferable to a work setting” or
“contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1113
(9th Cir. 2012) (citations omitted). Thus, the issue in this case is whether substantial evidence
supports the ALJ’s determination that Ms. Wentzek’s activities of daily living are inconsistent
with her prior statements or transferable to the workplace. Here, the ALJ found Ms. Wentzek not
credible because she “babysat her grandchild on a regular basis, maintained her home[,] did yard
work[,] homeschooled her son with special needs for two years [in 2009 and 2010,] [and]
[t]reatment records from March 2010 reflect that she was riding an ATV.” Tr. 21.
Initially, the fact that Ms. Wentzek homeschooled her son or rode an ATV, after the date
last insured, does not necessarily indicate that Ms. Wentzek was being less than candid regarding
her limitations during the relevant time period. Regardless, in evaluating plaintiff’s credibility,
the ALJ impermissibly mischaracterized the record. See Reddick v. Chater, 157 F.3d 715, 722-23
(9th Cir. 1998) (ALJ’s “paraphrasing of record material” was “not entirely accurate regarding the
Page 11 – OPINION AND ORDER
content and tone of the record” and, thus, did not support an adverse credibility finding). For
example, the record reveals that Ms. Wentzek’s alleged impairments precluded her from
successfully homeschooling her son; her ability to focus, persist, and remember the curriculum
was so limited that Ms. Wentzek was “unable to do the proper work with [her son],” such that he
was required to return to public school and repeat the sixth grade. Tr. 706-07. In addition, while
Ms. Wentzek babysat her grandson for two hours, three days a week, in 2004, she indicated that
she often received help in so doing. Tr. 221-22, 228, 246. In any event, by 2005, her condition
had deteriorated such that she was no longer able to provide as much care to her grandson.
Tr. 197-201, 307-08.
Moreover, Ms. Wentzek has been consistent in her testimony that, although she does
perform household chores, such as cleaning, laundry, and cooking, such tasks are difficult for her
and punctuated by frequent rests, such that they often go uncompleted. See, e.g., Tr. 221-28,
255-58, 260-61, 303-05, 307-10, 317, 655-56. Ms. Wentzek has also been consistent in her
statements regarding the cyclical nature of her pain, fatigue, and mental impairments. See, e.g.,
Tr. 256, 259-60, 262, 309, 656. In other words, Ms. Wentzek reported that she has good days
and bad days. Id. Accordingly, while the record evidence is scarce concerning this incident, the
fact that Ms. Wentzek rode an ATV once in 2010 is not inherently inconsistent with her
subjective symptom statements and therefore does not adversely affect her credibility.
Tr. 605-06. Finally, contrary to the ALJ’s assertion, there is no evidence in the record indicating
that Ms. Wentzek performed yard work or any other strenuous labor during the relevant time
period.3 Tr. 21; see also Tr. 223, 256, 261.
3
The record reflects that, in 2011, after Ms. Wentzek and her husband divorced, she
became responsible for the yard work. See Tr. 381.
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In sum, activities such as Ms. Wentzek’s – i.e. occasionally babysitting with help, a failed
attempt to homeschool her child, and taking a full day, with frequent breaks, to engage in
relatively limited chores – neither “indicat[e] capacities that are transferable to a work setting”
nor “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113; see also
Sprague v. Colvin, 2013 WL 2318844, *11-13 (D.Or. May 28, 2013) (citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)). Thus, the ALJ failed to provide a clear and convincing reason,
supported by substantial evidence, to reject Ms. Wentzek’s statements regarding the extent of her
limitations. The ALJ’s credibility finding is reversed.
C. Medical Evidence
Ms. Wentzek next argues that the ALJ improperly discredited Dr. Parsons’ opinion4 and,
further, failed to consider Ms. Wentzek’s Global Assessment of Functioning (“GAF”) scores.
i. Dr. Parsons
The Ninth Circuit distinguishes between the opinions of three types of acceptable medical
opinions: treating physicians, examining physicians, and non-examining doctors. The opinions of
treating doctors are generally accorded greater weight than the opinions of non-treating doctors.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s opinion that is not
contradicted by the opinion of another doctor can be rejected only for “clear and convincing”
reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If a treating doctor’s opinion is
contradicted by the opinion of another doctor, the ALJ must provide “specific, legitimate
reasons” for discrediting the treating doctor’s opinion. Murray v. Heckler, 722 F.2d 499, 502
4
In discussing the weight afforded to the medical opinion evidence, Ms. Wentzek’s
counsel also refers to the opinion of Dr. Suckow. See Pl.’s Opening Br. 25. Yet there is nothing
in the record indicating that Dr. Suckow provided treatment to Ms. Wentzek. Accordingly, the
Court declines to address the weight afforded to any doctor other than Dr. Parsons. See
Carmickle, 533 F.3d at 1161 n.2.
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(9th Cir. 1983). In addition, the ALJ generally must accord greater weight to the opinion of an
examining doctor over that of a non-examining doctor. Lester, 81 F.3d at 830. As is the case
with the opinion of a treating doctor, the ALJ must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502
at 506 (9th Cir. 1990). If the opinion of an examining doctor is contradicted by another doctor’s
opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the examining
doctor’s opinion. Lester, 81 F.3d at 830.
On December 31, 2007, approximately four months after he began providing treatment,
Dr. Parsons, a medical doctor, wrote a letter in support of Ms. Wentzek’s DIB application.
Tr. 546. Dr. Parsons stated: “In addition to several physical medical issues, [Ms. Wentzek]
suffers from severe anxiety and depression . . . Due to her conditions, she has not been able to
work.” Id.
The ALJ accorded Dr. Parsons’ opinion “little weight” because it “involves vocational
issues of which he has no expertise [and] [h]e provides no specific functional limitations.”
Tr. 20. The ALJ may reject an opinion as “conclusory” if it includes “no specific assessment of
[the claimant’s] functional capacity” during the relevant time period. Johnson v. Shalala, 60 F.3d
1428, 1432 (9th Cir. 1995). Likewise, an ALJ may discredit a medical report that does “not show
how [a claimant’s] symptoms translate into specific functional deficits which preclude work
activity.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999); see also
Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly rejected a medical opinion
that failed to explain the extent or significance of a condition).
A review of Dr. Parsons’ brief and conclusory opinion letter itself confirms the absence
of any named mental or physical limitations, such as the inability to concentrate or to lift, stoop,
Page 14 – OPINION AND ORDER
walk, or stand. In fact, the letter states only Ms. Wentzek’s diagnoses and then concludes that
“she has not been able to work.” Tr. 546. Therefore, the ALJ provided a clear and convincing
reason, supported by substantial evidence, for rejecting the opinion of Dr. Parsons.
ii. GAF Scores
“The GAF scale is a tool for reporting the clinician’s judgment of the individual’s
overall level of functioning; accordingly, a GAF score reflects a snapshot of a claimant’s
presentation on the day of the examination.” Davis v. Astrue, 2012 WL 4005553, *9 (D.Or.
June 12), adopted by 2012 WL 3614310 (D.Or. Aug. 21, 2012) (quoting Chapman v. Astrue,
2009 WL 3046025, *4 (D.Or. July 30, 2009); and American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 2000) (“DSM–IV”)) (internal quotations
omitted). Accordingly, contrary to Ms. Wentzek’s assertion, a “GAF score does not determine
disability.” Gardner v. Astrue, 2009 WL 1505303, *10 (D.Or. May 27, 2009). “Rather, the GAF
assessment is but one element of a medical provider’s conclusion.” Boyer v. Colvin, 2013
WL 3333060, *8 (D.Or. July 1, 2013).
As such, the fact that a licensed social worker, who is considered an “other source” under
the Social Security Regulations, assessed Ms. Wentzek with a moderately low GAF score during
the relevant time period does not automatically entitle her to benefits. See Tr. 320-22 (GAF score
of 53 assessed by Linda Tombaugh, L.C.S.W.); see also Tr. 498-99 (GAF score of 51 assessed
by Theresa Ann Dudley, L.C.S.W., M.S.W.).5 Instead, the dispositive inquiry is whether the ALJ
properly evaluated the medical evidence.6 See Sampson v. Astrue, 441 Fed.Appx. 545,
5
A GAF score between 51 and 60 indicates “moderate” symptoms, such as flat affect or
occasional panic attacks, or “moderate” difficulty in social, occupational, or school functioning,
such as having few friends or conflicts with peers or co-workers. DSM-IV at 30, 34.
6
The Court notes that, in March 2011, Dr. Auzins, Ph.D., completed a “Mental
Impairment Questionnaire,” in which he opined that Ms. Wentzek’s current GAF score was 50.
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546-47 (9th Cir. 2011) (“[b]ecause the ALJ properly rejected the treating physicians’ opinions,
any error in rejecting the Global Assessment of Function (GAF) scores was harmless, since the
scores alone would not establish disability”).
Although the record here contains treatment notes and diagnoses from Ms. Dudley and
Ms. Tombaugh, only Dr. Wicher and Dr. Rethinger rendered an opinion on the severity of
Ms. Wentzek’s alleged mental impairments and their impact on her ability to perform workrelated tasks. Tr. 471-87, 556-61. Ms. Wentzek, however, does not now challenge the ALJ’s
assessment of that evidence.7 Regardless, the ALJ did not expressly discuss the two mental
reports from these licensed social workers. Such an omission was not erroneous in this case
because this evidence was neither significant nor probative for two reasons. See, e.g., Vincent v.
Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (the Commissioner “need not discuss all
evidence presented to her . . . she must [only] explain why significant probative evidence has
been rejected”) (citation and internal quotations omitted); see also Howard ex rel Wolff v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“in interpreting the evidence and developing the
record, the ALJ does not need to discuss every piece of evidence”) (citations and internal
quotations omitted). First, both reports were based on one-time, initial diagnostic interviews. Tr.
Tr. 581. In addition, in January 2011, Dr. O’Reilly, Ph.D., assessed Ms. Wentzek with a GAF
score of 45. Tr. 613. The reports of Drs. Auzins and O’Reilly are the only evidence in the record
from an acceptable medical source regarding Ms. Wentzek’s GAF. Both assessments, however,
were completed more than two years after the date last insured and, further, Dr. Auzins expressly
stated that Ms. Wentzek’s allegedly disabling conditions have merely existed for “approx. [the]
last 6 mos.” Tr. 587. Therefore, Dr. Auzins’ and Dr. O’Reilly’s 2011 GAF evaluations are not
probative as to Ms. Wentzek’s functioning during the relevant time period. In fact, the ALJ gave
Dr. Auzins’ opinion “little weight” for this reason and Ms. Wentzek does not now challenge that
finding. Tr. 21.
7
Nonetheless, the Court acknowledges Ms. Wentzek’s argument that Dr. Wicher “used
an impermissible test,” the MMPI-II, to assess whether she was malingering. Pl.’s Opening
Br. 22-23. The Court declines to address this matter further, as it is not determinative, but notes
briefly that there is no support in the record for the contention that Dr. Wicher administered the
MPPI-II to address issues of credibility or malingering.
Page 16 – OPINION AND ORDER
320-22, 498-99. Second, neither report describes any functional limitations; rather, both
counselors’ chart notes merely reflect Ms. Wentzek’s statements concerning her relevant
background information. Id. As such, fully crediting this evidence would not result in a more
restrictive RFC.
Thus, even assuming the ALJ erred by neglecting to discuss Ms. Dudley’s and
Ms. Tombaugh’s reports, including their GAF assessments, such an error was harmless. See
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“the court will not reverse an ALJ’s
decision for harmless error, which exists when it is clear from the record that the ALJ’s error was
inconsequential to the ultimate nondisability determination”) (citation and internal quotations
omitted); see also Molina, 674 F.3d at 1118-19.8 As such, the ALJ’s assessment of the medical
evidence is affirmed.
D. Failure to Develop the Record
Ms. Wentzek also asserts that the ALJ erroneously failed to develop the record in regard
to her alleged attention deficit hyperactivity disorder (“ADHD”), somatoform disorder, and posttraumatic stress disorder (“PTSD”).
It is the claimant’s burden to prove the existence of an impairment. Marci v. Chater, 93
F.3d 540, 543-45 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(5). Yet, in certain limited
circumstances, the ALJ has an independent duty to develop the record. Higbee v. Sullivan, 975
8
Further, Ms. Wentzek’s counsel failed to provide any argument regarding this medical
evidence, beyond concluding that “[p]laintiff’s GAF score of 50 over the time in 2005 . . . is
precisely the level at which . . . courts consider indicative of disability.” Pl.’s Opening Br. 23. As
such, like the medical reports themselves, Ms. Wentzek does not articulate what further
functional limitations were required in order to accommodate for her GAF scores. Id.; see also
Pl.’s Reply Br. 4-5. Ms. Wentzek therefore failed to carry her burden in establishing that the
alleged error was harmful. See McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (as
amended) (“[w]here harmfulness of the error is not apparent from the circumstances, the party
seeking reversal must explain how the error caused harm”).
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F.2d 558, 561 (9th Cir. 1992). The ALJ’s “duty to further develop the record is triggered only
when there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001).
Moreover, as the Commissioner correctly notes, a “diagnosis alone cannot establish
disability.” Def.’s Resp. Br. 8. Instead, only “acceptable medical sources” can diagnose and
establish that a medical impairment exists; such findings must be based upon acceptable medical
evidence, such as “signs, symptoms, and laboratory findings.” Ukolov v. Barnhart, 420
F.3d 1002, 1006 (9th Cir. 2005); 20 C.F.R. §§ 404.1508, 404.1513(a); see also SSR 06-03p,
available at 2006 WL 2329939. Accordingly, “under no circumstances may the existence of an
impairment be established on the basis of symptoms alone.” SSR 96-4p, available at 1996
WL 374187.
i. Attention Deficit Hyperactivity Disorder
The only record evidence regarding Ms. Wentzek’s ADHD are her own self-reports.
Compare Tr. 552 (Ms. Wentzek stating that she takes Concerta to treat her ADHD and
narcolepsy), with Tr. 550 (Dr. Parsons’ chart notes indicating that he prescribed Concerta only to
treat Ms. Wentzek’s narcolepsy). In any event, the record does not include an affirmative
diagnosis of ADHD. There is also no acceptable medical evidence regarding Ms. Wentzek’s
ADHD. Moreover, Ms. Wentzek does not allege, and there is no indication in the record, that she
suffers from any functional limitations as a result of her ADHD or that this alleged impairment is
inadequately controlled with medication; in fact, Ms. Wentzek never sought treatment for this
condition. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)
(“[i]mpairments that can be controlled effectively with medication are not disabling”). Thus, the
ALJ did not err by failing to develop the record in this regard.
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ii. Somatoform Disorder
The record before the Court contains a single reference to Ms. Wentzek’s alleged
somatoform disorder. In January 2011, Dr. O’Reilly noted that Ms. Wentzek had a history of
“somatic complaints.” Tr. 613. Notably, neither Dr. O’Reilly, nor any medical source, diagnosed
Ms. Wentzek with a somatoform disorder and, accordingly, she did not seek treatment for this
alleged impairment. Id.; see also DSM-IV at 485. In other words, the record does not reflect that
a somatoform disorder was suspected and, in any event, Dr. O’Reilly’s assessment was prepared
more than two years after the date last insured. More importantly, there is no acceptable medical
evidence in the record, such as clinical or laboratory findings, suggesting that Ms. Wentzek
suffered from a somatoform disorder. Id. Therefore, the ALJ did not err by failing to more fully
develop the record as to this alleged impairment.
iii. Post-Traumatic Stress Disorder
The record is replete with references to Ms. Wentzek’s PTSD during the relevant time
period. See, e.g., Tr. 469 (Dr. Stuckey reporting that Ms. Wentzek “presents with symptoms of
PTSD such as nightmares related to her abuse and extensive gaps in her remote memory,” listing
PTSD as a “[r]ule out” possibility), 497-99 (Ms. Dudley diagnosing Ms. Wentzek with PTSD),
546 (Dr. Parsons noting that Ms. Wentzek “has been diagnosed” with PTSD), 548 (Dr. Parsons
listing PTSD as Ms. Wentzek’s Axis I diagnosis and reporting that she suffers from “[l]ikely
PTSD with chronic and depressive anxiety and symptoms”), 550 (Dr. Parsons diagnosing
Ms. Wentzek with PTSD); see also Tr. 581-88. Further, when taken as a whole, the record
indicates that this impairment significantly limits Ms. Wentzek’s ability to do basic work
activities. Id. Yet there was no evidence before the ALJ, and none in the record, regarding how
Ms. Wentzek’s PTSD limits her ability to work or exacerbates her other alleged impairments. As
Page 19 – OPINION AND ORDER
a result, the ALJ neither discussed this alleged impairment at step two nor considered it in
formulating Ms. Wentzek’s RFC. See Harrison v. Astrue, 2011 WL 2619504, *7 (D.Or. July 1,
2011) (“[o]missions at step two are harmless if the ALJ’s subsequent evaluation considered the
effect of the impairment omitted at step two”) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th
Cir. 2007)). Additionally, while not dispositive, the Court notes that the lack of evidence
concerning Ms. Wentzek’s mental impairments, and how they interact, is, in part, why the
Appeals Council previously remanded this case to obtain evidence from a medical expert. See
Tr. 25-26. As such, because there is no evidence concerning how Ms. Wentzek’s PTSD limits
her ability to work or interfaces with her other alleged impairments, the Court finds the record
inadequate.
In sum, Ms. Wentzek failed to introduce any acceptable medical evidence of her
somatoform disorder or ADHD. Ms. Wentzek’s failure to carry her burden of proof regarding
these conditions does not equate to an inadequacy or ambiguity in the record. Nonetheless, the
record is insufficient regarding the effects of Ms. Wentzek’s PTSD, if different from those
relating to her anxiety and depression, and its interaction with her other mental impairments.
Thus, the ALJ’s decision is reversed as to this issue.
E. The ALJ’s RFC and Step Five Finding
Finally, Ms. Wentzek argues that the ALJ committed reversible error by failing to include
all of her impairments in the RFC. Specifically, Ms. Wentzek contends that the ALJ was required
to account for her PTSD, ADHD, and somatoform disorder, as well as the limitations outlined in
Dr. Parsons’ letter. In addition, Ms. Wentzek asserts that the ALJ “failed to include the DDS
examining and non-examining medical examiners’ findings that [she] had reduced
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concentration[,] pace and persistent abilities are moderate impairments when working with
coworkers, supervisors and [the] public.” Pl.’s Opening Br. 27.
The RFC is the most that a claimant can do despite his or her limitations. 20 C.F.R.
§ 404.1545(a)(1). In determining the RFC, the ALJ must consider limitations imposed by all of a
claimant’s impairments, even those that are not severe; the ALJ evaluates “all of the relevant
medical and other evidence,” as well as a claimant’s testimony, in making this assessment. SSR
96–8p, available at 1996 WL 374184; 20 C.F.R. § 404.1545(a)(1); see also Robbins, 466 F.3d
at 883. Limitations supported by substantial evidence in the record must be incorporated into the
RFC. See Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th Cir. 2001).
In this case, the ALJ did not provide legally sufficient reasons for discrediting
Ms. Wentzek’s subjective symptom testimony and, moreover, failed to develop the record in
regard to her PTSD. Further, Ms. Wentzek is correct that, despite giving substantial weight to
Dr. Wicher and the State Agency consultive sources, the ALJ failed to include a restriction for
her difficulty with social functioning. Compare Tr. 21-22 (ALJ’s opinion), with Tr. 485-87
(Dr. Rethinger’s mental RFC), and Tr. 552-60 (Dr. Wicher’s mental RFC). Because the RFC
does not account for these potential additional limitations, the RFC assessment is erroneous.
Similarly, the hypothetical posed to the VE was also erroneous. Accordingly, the ALJ’s RFC and
step five finding are reversed.
F. Remand
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.),
cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A
remand for an award of benefits is appropriate when no useful purpose would be served by
Page 21 – OPINION AND ORDER
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to support the Commissioner’s decision. Strauss, 635 F.3d at 1138–39 (citation
omitted). The court may not award benefits punitively and must conduct a “credit-as-true”
analysis to determine if a claimant is disabled. 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
determination of disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled 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
determining whether to enter an award of benefits upon reversing the Commissioner’s decision.
Connett v. Barnhart, 340 F.3d 871 876 (9th Cir. 2003) (citation omitted). The reviewing court
should decline to credit testimony when “outstanding issues” remain. Luna v. Astrue, 623 F.3d
1032, 1035 (9th Cir. 2010).
As discussed above, the ALJ erred in discrediting Ms. Wentzek’s statements, not
developing the record in regard to her PTSD, and failing to include all of the limitations
supported by substantial evidence in the RFC and step five finding. There are, however, issues
that must be resolved before benefits may be awarded. It is not clear from the record what effect
the inclusion of the erroneously omitted limitations will have on Mr. Wentzek’s capacity to
work. Additionally, the record would benefit from further development of Ms. Wentzek’s PTSD,
especially as it relates to and interacts with her other mental impairments. The VE’s testimony
touches on, but does not directly address, these matters. See Tr. 713-15. Accordingly, this case is
remanded for further proceedings in order to reassess plaintiff’s credibility and to obtain
Page 22 – OPINION AND ORDER
evidence from a medical expert regarding Ms. Wentzek’s PTSD and other mental impairments.
The ALJ should then consider whether that evidence requires a reassessment of the medical
record or a new RFC; the ALJ must obtain additional VE testimony in light of any new RFC
evaluation.
CONCLUSION
The Commissioner’s decision is REVERSED and this matter is REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and
Order.
DATED this 3rd day of September, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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