Doran v. Commissioner Social Security Administration
Filing
20
OPINION AND ORDER. Signed on 08/13/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:13-cv-01008-MA
MICHELE DORAN,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr & Gibney Law Off ices
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
GERALD J. HILL
Social Security Administration
Off ice of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff Michele Doran seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
her
applications for disability insurance benefits (DIB) under Title II
of the Social Security Act,
42 U.S.C
for Supplemental Security Income
401-403, and application
§§
(SSI) disability benefits under
Title XVI of the Social Security Act,
42 U.S.C.
This Court has jurisdiction pursuant to 42 U.S.C.
1383(c) (3).
1381-1383f.
§§
§§
405(g)
and
For the reasons that follow, I reverse and remand for
further administrative proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed applications for DIB and SSI on
August 5, 2009, alleging disability beginning March 15, 2007, due
to bipolar disorder, borderline personality disorder, chronic back
pain status post two surgeries, syncope, fibromyalgia, headaches,
depression, anxiety, and post traumatic stress disorder (PTSD).
Plaintiff's
reconsideration.
claims
were
and January 5,
2012,
attorney and testified.
Appeals
2012,
Council
and
upon
An ALJ held hearings on October 5,
at which plaintiff appeared with her
A vocational expert,
also appeared at the January 5,
January 12,
initially
Plaintiff filed a request for a hearing before an
administrative law judge (ALJ).
2011,
denied
Richard M.
Hincks
2012 hearing and testified.
the ALJ issued an unfavorable decision.
denied
2 - OPINION AND ORDER
plaintiff's
request
for
review,
On
The
and
therefore,
the ALJ's decision became the final decision of the
Commissioner for purposes of review.
Born in 1976, plaintiff was 35 years old on the date of the
ALJ's adverse_decision.
Plaintiff completed school through the
eleventh grade and has past relevant work as a waitress, caregiver,
gas station cashier, service station attendant, fast food worker,
and cable puller.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Each
step is potentially disposi ti ve.
burden of proof at
steps
one through
Tackett v. Apfel,
180 F.3d 1094, 1098
five,
shifts
the
the
See Valentine
four.
Sec. Admin., 574 F.3d 685,
to
404.1520; 416.920.
The claimant bears
Commissioner Soc.
the burden
§§
Bowen v.
v.
689 (9th Cir. 2009);
(9th Cir.
1999).
Commissioner to
At step
show that
the
claimant can do other work which exists in the national economy.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
The
ALJ
concluded
that
plaintiff
met
the
insured
status
requirements of the Social Security Act through December 31, 2011.
A claimant
seeking
DIS benefits
under Title
II must establish
disability on or prior to the last date insured.
42 u.s.c.
416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
3 - OPINION AND ORDER
§
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since her alleged onset of disability.
At step two, the ALJ found that plaintiff had the following severe
impairments: alcohol dependence, marijuana dependence, and cocaine
dependence
in
remission;
a
bipolar
disorder;
found
that
plaintiff's
borderline
At step three,
personality disorder; and chronic back pain.
ALJ
a
impairments,
or
combination
the
of
impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC)
to perform less than a
full
range of light work in that
plaintiff can occasionally climb, stoop, crouch, crawl, and kneel;
she is limited to simple,
entry-level work;
she should have no
interaction with the public and can have occasional interaction
with coworkers, but no team activities.
At step four, the ALJ found plaintiff is unable to perform any
past
relevant
considering
At
work.
plaintiff's
step
age,
five,
the
education,
ALJ
work
concluded
experience,
that
and
residual functional capacity, jobs exist in significant numbers in
the
national
packager,
economy that
electronics
plaintiff can perform,
worker,
and
small
such
parts
as
hand
assembler.
Accordingly, the ALJ concluded that plaintiff has not been under a
disability
under
the
Social
Security Act
through the date of the decision.
4 - OPINION AND ORDER
from
March
15,
2007
ISSUES ON REVIEW
On appeal
to this court,
errors were committed:
plaintiff contends the following
(1) the ALJ failed to properly evaluate and
include physical limitations described by examining physician John
Ellison,
M.D.;
and
(2)
the ALJ failed to properly evaluate the
opinions of examining psychologists Keli Dean,
Psy.D. and Robert
Duvall, Ph.D.
STANDARD OF REVIEW,
The district court must affirm the Commissioner's decision if
the Commissioner applied
proper legal standards and the findings
are supported by substantial evidence in the record.
405(g);
Berry v.
Astrue,
622
F.3d 1228,
1231
42 U.S.C.
(9th Cir.
§
2010).
"Substantial evidence is more than a mere scintilla but less than
a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Hill, 698 F.3d
at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690.
The court must weigh all
the evidence,
whether it
detracts from the Commissioner's decision.
807 F. 2d 771,
772
(9th Cir.
1986).
supports or
Martinez v.
Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational
Admin.,
interpretation.
359 F.3d 1190,
1193
Batson v.
(9th Cir.
supports the Commissioner's conclusion,
Commissioner Soc.
2004).
Sec.
If the evidence
the Commissioner must be
affirmed; "the court may not substitute its judgment for that of
5 - OPINION AND ORDER
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
the Commissioner.n
Cir. 2001).
DISCUSSION
I.
Standards for Evaluating Physician's Opinions
To
reject
the
uncontroverted
examining physician,
of
a
treating
or
the ALJ must present clear and convincing
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
reasons.
If a
opinion
treating or examining doctor's opinion is contradicted by
another
doctor's
opinion,
legitimate reasons.
it
may
be
rejected
by. specific
and
Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d
1228, 1232 (9th Cir. 2011)
When evaluating conflicting opinions,
an ALJ is not required to accept an opinion that is not supported
by clinical findings, or is brief or conclusory.
II.
Id.
Dr. Ellison
Plaintiff argues that the ALJ failed to provide specific and
legitimate
reasons
for
Ellison,
discounting
M.D.
On
the
May
opinion
28,
2011,
of
examining
Dr.
Ellison
physician
John
performed
a
plaintiff,
and reviewed available medical records from Clackamas
comprehensive
physical
County Community Health Division Providence Family Medicine Southeast.
examination,
Behavioral Health
interviewed
(CBH)
and
Plaintiff complained of pain
"all over,n described her previous back surgery, and indicated she
has been diagnosed with fibromyalgia.
Tr. 988.
Plaintiff admitted
to Dr. Ellison that she was then drinking at least six beers per
6 - OPINION AND ORDER
day and smoking marijuana, and attended drug and alcohol counseling
twice a week.
With respect to plaintiff's back, Dr. Ellison noted
that she had mild tenderness in her lumbar spine, with no muscle
spasms,
had
a
mildly
reduced
range
of
motion,
with
strongly
positive straight leg testing in both legs in supine or sitting
positions.
Dr. Ellison diagnosed plaintiff with chronic low back
pain with a
history of two shaving procedures at
LS,
and pain
radiating into the left leg with some evidence of radiculopathy.
Tr. 990.
On
May
Statement,
31,
2011,
Dr.
Ellison
completed
a
Medical
Source
indicating that plaintiff could sit for eight hours,
stand for two hours, and walk for one hour total in an eight hour
day.
Dr.
Ellison indicated that plaintiff could frequently use
both hands,
could occasionally use her right foot,
but never use
her left foot, and could occasionally climb stairs and ramps, but
never climb ladders,
crawl.
Dr.
Ellison
scaffolds, balance,
also
opined
that
stoop,
kneel,
plaintiff
should
unprotected heights and work in a quiet (library) office.
Dr.
crouch or
avoid
Tr. 994.
Ellison attributed these limitations to plaintiff's chronic
back pain, degenerative disc disease, two back surgeries, left leg
radiculopathy, bipolar disorder, psychosis, depression and anxiety.
Tr. 991.
7 - OPINION AND ORDER
Because Dr. Ellison's opinion was contradicted, 1 the ALJ was
required to provide specific and legitimate .reasons to reject his
opinion.
Bayliss, 427 F.3d at 1216.
In the decision, the ALJ gave
Dr. Ellison's opinion litile weight because:
(1) it was primarily
based on plaintiff's subjective reporting of symptoms,
(2)
the
standing and walking limitations described were inconsistent with
his own examination, and (3) the limitations were inconsistent with
the lack of limitations on lifting and carrying.
I conclude that
the ALJ has provided specific and legitimate reasons to reject Dr.
Ellison's opinion.
I begin by noting that plaintiff does not challenge the ALJ's
negative
credibility
assessment.
It
is
well-settled
that
a
physician's opinion premised upon a claimant's properly discounted
subjective symptoms and limitations may be disregarded.
Comm'r of Soc.
Sec. Admin., 554 F.3d 1219, 1228
Bray v.
(9th Cir. 2009);
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008); Morgan
v. Commissioner of Soc.
1999).
Sec. Admin.,
169 F.3d 595,
602
(9th Cir.
The ALJ took note of plaintiff's symptom magnification,
inconsistent reporting, noncompliance with treatment, long-standing
1
Dr. Ellison's opinion that plaintiff was limited to two
hours of standing and one hour of walking each day is
contradicted by non-examining physician Martin Kehrli, M.D., who
opined on December 2, 2009, that plaintiff could stand and walk
for six hours in an eight hour day.
Tr. 617.
This opinion was
affirmed on reconsideration by Mary Ann Westfall, M.D.
Tr. 987.
The opinions of Ors. Kehrli and Westfall are supported by
substantial evidence.
8 - OPINION AND ORDER
drug and alcohol dependence, focus on narcotics for pain treatment,
and stealing.
Despite that plaintiff does not contest the adverse
credibility determination, I have carefully reviewed the record in
its entirety, and conclude that the ALJ's determination is readily
supported by substantial evidence in the record.
Nevertheless,
provide
specific
plaintiff asserts that the ALJ has failed to
and
legitimate
reasons
because
Dr.
Ellison's
opinion rested upon his examination findings, and not plaintiff's
subjective
symptom
reporting.
According
to
plaintiff,
Dr.
Ellison's opinion is based on medical signs he observed during the
examination,
including
a
strongly positive
straight
leg
test,
decreased temperature and pinprick in her left foot, and a little
difficulty squatting and rising due to back pain.
I disagree.
First, the ALJ's finding that Dr. Ellison's opinion was based
on plaintiff's
subjective symptoms
evidence in the record.
is supported by substantial
While Dr. Ellison did examine plaintiff,
the techniques he employed, such as straight leg raising,
from
squatting,
and
range
of
motion,
rely
upon
subjective self-reporting, not objective testing. 2
Halter,
242
F.3d
1144,
1149
(9th
Cir.
rising
plaintiff's
Tonapetyan v.
2001) (upholding
ALJ's
rejection of examining physician's opinion because it was based on
2
For example, plaintiff's numbness and tingling in her
extremities is subjectively based, whereas the results of a nerve
conduction test would be objectively based.
Dr. Ellison did not
perform nerve conduction tests.
9 - OPINION AND ORDER
claimant's
control) .
subjective
complaints
and
testing
within claimant's
Furthermore, during Dr. Ellison's interview, plaintiff
reported that she could only walk one block on a level surface, and
could climb a flight of stairs.
Plaintiff's report of such extreme
limitations is not supported by her medical records following her
second
back
Ellison.
sought
surgery
Indeed,
very
a
limited
records
that
were
not
reviewed
review of the
record shows
treatment
her
for
Dr.
that plaintiff
back pain
following her second back surgery in January 2010.
by
and
sciatica
For example, a
June 3, 2010, treatment note authored by Tom Chau, M.D., shows that
plaintiff complained of low back pain that "is so bad she wants to
go to the ER," yet plaintiff did not have any "emotional correlates
of pain" and did not appear in distress.
Tr.
849.
As the ALJ
discussed, Dr. Chau indicated that plaintiff's post-operative MRI
showed actual
improvement with less disc bulge,
with no nerve
impingement, and that he counseled plaintiff about realistic pain
expectations for pain control, but that plaintiff was "dismissive"
and "seemed fixated on Vicodin."
Tr. 15, 849.
Based on the lack
of contemporaneous record support to substantiate plaintiff's selfreported walking abilities, the ALJ could reasonably conclude that
Dr.
Ellison's restrictions were based on plaintiff's unreliable
statements.
As indicated above, the ALJ's negative credibility assessment
was
based
in
part
on
10 - OPINION AND ORDER
plaintiff's
symptom
magnification
and
inconsistent
reporting
to
medical
Based
providers.
on
the
information presented to Dr. Ellison, the ALJ could reasonably find
that his opinion was largely based on plaintiff's unreliable selfreports.
Because the ALJ' s
interpretation is
rational
and
is
supported by substantial evidence in the record as a whole, it will
not be disturbed.
See e.g., Molina v. Astrue, 674 F.3d 1104, 1111
(9th Cir. 2012) (ALJ's findings must be upheld if they are supported
by reasonable inferences drawn from the record) .
Therefore,
I
conclude that the ALJ's first reason, when considered singly or in
combination
with
the
ALJ's
second
reason,
is
a
specific
and
legitimate reason to discount his opinion.
Second,
the ALJ reasonably discounted Dr.
Ellison's opinion
because the extensive limitations he described, especially standing
and walking, were inconsistent with his own examination findings.
According
to
plaintiff,
Dr.
Ellison's
findings
were
not
"essentially normal" as the ALJ described.
Plaintiff maintains
that
his
diagnosis
medical
signs
Dr.
Ellison's
radiculopathy,
are
findings,
significant
including
abnormal
of
that
justified Dr. Ellison's described sedentary limitation.
Although plaintiff disagrees with the ALJ's characterization
of Dr. Ellison's examination as "normal," I conclude that the ALJ
reasonably
could
find
that
the
examination
inconsistent with the degree of limitation.
results
were
As described above,
Dr. Ellison's limited evaluation of plaintiff's back and neurologic
11 - OPINION AND ORDER
symptoms showed numbness and tingling, mild tenderness, no muscle
spasm,
mildly reduced range of motion,
supine
and
squatting.
sitting,
and
In contrast,
"a
little
straight leg testing in
difficulty"
rising
from
Dr. Ellison found that plaintiff had a
normal station, gait, and coordination; normal tandem and heel toe
walk;
and normal motor strength,
muscle bulk and tone with no
atrophy.
Given that Dr. Ellison described many of the results as
mild and
the exam results were within plaintiff's control, the ALJ
reasonably concluded the results were inconsistent with the degree
of limitation.
Tonapetyan, 242 F.3d at 1149.
conclude differently,
Even if I were to
the ALJ's determination was reasonable,
supported by substantial evidence in the record,
must be upheld.
Baston, 359 F.3d at 1193.
ALJ's second reason,
is
and therefore,
I conclude that the
when combined with the ALJ's first reason,
amounts to specific and legitimate support
for discounting Dr.
Ellison's opinion.
I
agree
with plaintiff,
however,
that
the
ALJ improperly
discounted Dr. Ellison's opinion on the ground that the standing
and
walking
opinion that
restrictions
were
plaintiff could
inconsistent
lift
with
Dr.
Ellison's
and carry unlimited weight.
Reviewing Dr. Ellison's opinion as a whole, it is evident that Dr.
Ellison's
lack
of
lifting
Statement is an oversight.
restrictions
Accordingly,
in
his
Medical
I conclude that the ALJ
erred in discounting Dr. Ellison's opinion on this basis.
12 - OPINION AND ORDER
Source
However,
any such error is harmless because the ALJ's first two reasons
amount to specific and legitimate reasons, backed by substantial
evidence,
for discounting Dr.
Commissioner,
Soc.
Sec.
Ellison's opinion.
Admin.,
533
F.3d 1155,
Carmickle v.
1162
(9th Cir.
2008) .
III. Dr. Dean
Plaintiff argues that the ALJ improperly rejected the opinion
of
examining
psychologist
social functioning.
Keli
J.
Dean
On May 4 and 6,
concerning
2011,
Dr.
plaintiff's
Dean conducted a
psychological evaluation on behalf of the Oregon Department of
Human Services.
Tr.
1085.
Dr.
Dean interviewed plaintiff and
reviewed records from CBH and some of plaintiff's medical records
dating
from 2008.
Dr.
Dean also administered the
Personality
Assessment Inventory (PAI).
During the interview, plaintiff reported to Dr. Dean that she
was
raped at the age of 18 resulting in pregnancy and suffers
related nightmares and flashbacks.
terminated
counseling
at
CBH
Plaintiff reported that she
because
it
was
an
inconvenient
location, but Dr. Dean noted that plaintiff's care was closed after
plaintiff
failed
to
show
for
appointments
and
she
was
caught
stealing from the clinic.
Dr.
Dean concluded that plaintiff's PAI scores were invalid
due to a high number of inconsistent responses to questions with
highly similar content.
13 - OPINION AND ORDER
Tr. 1090.
Dr. Dean diagnosed plaintiff
with schizoaffecti ve disorder, bipolar type, PTSD, Alcohol Abuse in
early full remission by plaintiff's report, cocaine dependence in
full sustained remission.
notably
irritable,
Dr.
anxious,
Dean observed that plaintiff was
and
appeared
to
be
experiencing
significant distress and severe psychological symptoms based on her
self-report,
and assigned a
GAF of
Dr.
41.
Dean noted
that
plaintiff described a history consistent with depression, mania,
and disabling auditory hallucinations.
Tr. 1090.
In conclusion,
Dr. Dean indicated the following:
Based on [plaintiff's] records, information provided
during the interview,. and her presentation at .the
evaluation, there are strong indicators to suggest she is
not employment ready at this time. In fact, an increase
in demands such as training or employment would likely
result in further decompensation. [Plaintiff] presents as
quite agitated and has little to no tolerance for
interacting with others.
She would not likely be
amenable to a new employment situation, which required
any kind of contact with others including one-to-one job
training with a professional job coach. Her psychotic
symptoms (i.e. auditory hallucinations and paranoia) make
it difficult for her to focus . . .
At this time, it is
recommended that [plaintiff's] OHS plan focus solely on
treatment.
She
is
not
a
good
candidate
for
participation in the JOBS program ...
Tr. 1091.
On
20,
May
2011,
Dr.
Dean
completed
Functional Capacity (MRFC) Report,
and
concentration
attendance;
working
distracted;
completing
14 - OPINION AND ORDER
in
for
Residual
including: maintaining
extended
proximity
a
Mental
indicating that plaintiff had
marked limitations in several categories,
attention
a
workweek
to
periods;
others
without
maintaining
without
interruptions
being
from
psychological symptoms; the ability to act appropriately with the
public;
the
ability to
accept
instructions
and criticism from
supervisors; the ability to travel using public transportation; and
the ability to set realistic goals.
In
the
instant
proceeding,
Tr. 1093-94.
plai.ntiff
argues
that
the
ALJ
failed to provide specific and legitimate reasons for rejecting the
opinion of Dr.
Dean.
According to plaintiff,
the ALJ failed to
include in the RFC plaintiff's social functioning limitations found
by
Dr.
Dean,
specifically
her
inability
to
interact
with
Plaintiff's arguments fail for two
supervisors and co-workers.
reasons.
First, the ALJ provided numerous reasons for discounting Dr.
Dean's
opinion:
( 1)
it
was
primarily
subjective reporting of her symptoms;
based
on
plaintiff's
(2) it was inconsistent with
the information plaintiff provided to Dr. Duvall; and (3) it was
inconsistent with the record as a whole.
An ALJ may properly
discount
upon
a
physician's
opinion
premised
discredited subjective complaints.
a
plaintiff's
Tommasetti, 533 F.3d at 1038.
Significantly, plaintiff has not challenged the ALJ's credibility
determination in this proceeding.
Having carefully reviewed the
record, the ALJ's unchallenged credibility determination is readily
supported by substantial evidence, and therefore, I conclude that
the
ALJ
has
provided
a
specific
discounting Dr. Dean's opinion.
15 - OPINION AND ORDER
and
legitimate
reason
for
Additionally, the ALJ legitimately rejected Dr. Dean's opinion
because
it
was
plaintiff.
As
premised
the
on
vastly
ALJ detailed,
inconsistent
plaintiff
reporting
by
reported different
information to Dr. Dean than she conveyed to Dr. Duvall concerning
a sexual assault, her substance abuse, and alleged hallucinations.
The discrepancies are
supported by substantial evidence in the
record,
and the ALJ could reasonably conclude that
opinion
was
premised
legitimately reject
on
it.
plaintiff's
contradictory
See Molina,
674
Dr.
Dean's
reports
F. 3d at
1111
and
(ALJ' s
rational interpretation of evidence must be upheld if supported by
inferences
reasonably
drawn
from
the
record) .
Thus,
the
ALJ
provided another specific and legitimate reason for rejecting the
opinion of Dr. Dean, and therefore, I conclude the ALJ did not err.
The ALJ also discounted Dr.
score
of
41
was
inconsistent
Dean's opinion because the GAF
with
the
record as
a
whole.
I
disagree.
Plaintiff's GAF scores have ranged from 40 to 56.
356, 974.
Thus, I conclude that the ALJ erred in discounting Dr.
Dean's opinion on this basis.
Tr.
Any such error is harmless because
the ALJ provide other specific and legitimate reasons, supported by
substantial
evidence,
for
discounting
Dr.
Dean's
opinion.
Therefore, I find no harmful error in the ALJ's assessment of Dr.
Dean's opinion.
Carmickle, 533 F.3d at 1162.
////
/Ill
16 - OPINION AND ORDER
IV.
Dr. Duvall
On November 3,
2011,
Ronald D.
Duvall,
Ph.D.,
conducted a
neuropsychological screening to assess plaintiff's eligibility for
disability benefits.
many
of
plaintiff's
evaluation,
including
Dr. Duvall conducted an interview, reviewed
and
the
medical
conducted
Wechsler
records,
several
Adult
including
Dr.
Dean's
neuropsychological
tests,
Intelligence
Scale-IV
(WAIS-IV),
Wechsler Memory Scale-III (WMS-III), Trail-Making Tests A&B, Reitan
Aphasia Screening Test, Test of Memory Malingering (TOMM), and the
Minnesota Multiphasic Personality Inventory-II {MMPI-2).
Dr. Duvall noted that plaintiff reported numerous, significant
inconsistencies between his assessment and Dr.
conducted just six months previously.
plaintiff reported to Dr.
Tr.
Dean's assessment
1201.
For example,
Dean that she was sexually assaulted
causing flashbacks and nightmares.
However, plaintiff denied being
a victim of sexual assault when Dr. Duvall inquired.
On the WAIS-
IV, Dr. Duvall found plaintiff to be of low-average to borderline,
and that her WSM-III test results were consistent with her I.Q.
scores.
Notably,
Dr.
invalid,
"due
[plaintiff's]
problems."
to
Tr.
1207.
Duvall
Dr.
found
plaintiff's
exaggeration
Duvall
of
diagnosed
MMPI-2
her
scores
personal
plaintiff
with
Depression, Bipolar Disorder NOS, Panic Disorder with Agoraphobia,
Alcohol Aubse, reportedly in sustained remission, and a History of
Polydrug Abuse vs. Dependence.
17 - OPINION AND ORDER
Dr. Duvall made the following findings:
Even with the questions regarding her exaggeration on the
MMPI-2,
and
her
discrepant
reports
between
this
examination and her May, 2011, psychological evaluation
by Dr. Dean, the problems presented by [plaintiff] still
represent significant barriers to competitive employment.
She is emotionally unstable; she is prone to angry
outbursts and aggression t.oward others; she reported
persistently high levels of anxiety and panic attacks;
she has a re la ti vely short term of abstinence from
serious
addictions
to
alcohol
and
drugs.
Her
intelligence is low-average to borderline.
She has no
drivers license and has trouble managing other ADLs
independently, relying on her roommate at present.
Tr. 1209.
On November 3,
2011,
Dr.
Duvall completed a Medical Source
Statement, in which he notes that plaintiff is not limited in her
ability to understand, remember, and carry out simple instructions,
and is mildly limited in her ability to make simple work-related
decisions; she is moderately limited in her ability to understand,
remember,
and carry out complex instructions due to her limited
intelligence and anxiety that interferes with more complex tasks.
Tr.
1197.
Dr.
Duvall also indicated that plaintiff is markedly
limited in her ability to interact appropriately with the public,
supervisors, and co-workers, and moderately limited in her ability
to respond appropriately to usual work situations and changes in
routine due to her borderline personality disorder with poor affect
regulation, anger outbursts, and history of aggressive behaviors.
Tr. 1198.
18 - OPINION AND ORDER
In the decision,
opinion,
the ALJ thoroughly discussed Dr.
and credited Dr.
Duvall's
opinion that
Duvall's
plaintiff was
capable of simple tasks and was an inconsistent reporter because
those
findings
were
consistent
with
the
record
as
a
whole.
Additionally, the ALJ gave Dr. Duvall's opinion that plaintiff has
"significant barriers to employment" and marked limitations with
social functioning less weight because those findings were based on
plaintiff's
subjective
reporting,
and
was
inconsistent
with
plaintiff's work history, demonstrating that plaintiff could work
with others in the past.
Tr. 22.
In the instant proceeding, plaintiff complains that the ALJ
failed to provide specific and legitimate reasons for rejecting Dr.
Duvall's
opinion
concerning
social functioning.
plaintiff's
marked
According to plaintiff,
limitations
in
the ALJ failed to
include plaintiff's limitations in her inability to interact with
supervisors and co-workers found by both Drs. Dean and Duvall into
the RFC.
Plaintiff also argues that because all of plaintiff's
mental health care providers expressed that she has difficulties
with supervisors, the RFC omitting this limitation is not supported
by substantial evidence.
I
agree
that
Based on my careful review of the record,
the ALJ has not provided specific and legitimate
reasons.
Generally speaking,
an ALJ provides sufficient reasons for
discounting a physician's opinion when that opinion is based upon
19 - OPINION AND ORDER
a plaintiff's discredited self-reports.
However, in this case, Dr.
Duvall considered plaintiff's exaggeration and inaccurate reporting
and nevertheless concluded that her severe psychological symptoms
presented barriers
to employment.
In this
regard,
Dr.
Duvall
premised his opinion on records he reviewed and objective testing
he conducted,
nothwithstanding plaintiff's admittedly incredible
self-reports.
To be sure, the records Dr. Duvall references show
plaintiff struggling with anger and mood stability,
Therefore,
ongoing alcohol dependence.
the record before me,
as well as
I conclude that based on
simply pointing to plaintiff's discredited
subjective symptoms was not a specific and legitimate reason to
reject Dr. Duvall's opinion.
Additionally,
plaintiff's work history is not so extensive
that this basis alone constitutes a specific and legitimate reason
to reject Dr.
Duvall's opinion.
Because Dr.
Duvall also opined
that plaintiff has marked limitations working with supervisors that
was
not
included
in
the
RFC,
the
error
was
not
harmless.
Accordingly, the ALJ has erred.
V.
Remand
After finding the ALJ erred, this court has the discretion to
remand
for
benefits.
further
proceedings
Vasquez v. Astrue,
or
for
572 F. 3d 586,
Harman v. Apfel, 211 F.3d 1172, 1178
593
payment
of
(9th Cir. 2009);
(9th Cir. 2000).
turns on the utility of further proceedings.
20 - OPINION AND ORDER
immediate
The issue
A remand for an award
of benefits is appropriate where there is no useful purpose to be
served
by
developed.
The
further
proceedings
or
where
the
record
is
fully
Vasquez, 572 F.3d at 593.
Ninth Circuit
has
established a
three-part
test
"for
determining when evidence should be credited and an immediate award
of benefits directed."
Harman, 211 F.3d at 1178.
The court should
grant an immediate award of benefits when:
(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.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has
discretion
whether
to
credit
the
evidence.
Barnhart, 340 F.3d 873, 876 (9th Cir. 2003)
should
decline
remain.
Moreover,
to
Luna v.
"[a]
credit
Astrue,
claimant
testimony
when
623 F.3d 1032,
is
Connett
The reviewing court
"outstanding
1035
issues"
(9th Cir.
2010).
not entitled to benefits under
statute unless the claimant is,
in fact,
egregious the ALJ' s errors may be."
v.
the
disabled, no matter how
Strauss v. Commissioner of the
Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
On this record,
I conclude that outstanding issues must be
resolved before a final determination of disability can be made.
Dr.
Duvall opined that plaintiff's emotional instability,
21 - OPINION AND ORDER
anger
outbursts
and
aggression,
persistent
anxiety,
and
short
term
abstinence from alcohol and drugs presented "significant barriers
to competitive employment."
Tr. 1209.
Dr. Duvall also indicated
that plaintiff has marked limitations in interacting appropriately
with supervisors.
Tr. 1198.
The VE testified that if a person had
marked difficulty dealing with supervisors, competitive employment
would be eliminated.
Tr.
49.
I decline to credit Dr.
Duvall's
testimony because reviewing the record as a whole creates serious
doubt as to whether plaintiff is, in fact, disabled.
Colvin,
2014 WL 3397218,
F. 3d
*21
Garrison v.
(9th Cir.
July 14,
2014).
As noted above,
was
not
the ALJ's adverse credibility determination
challenged.
Moreover,
the
record
is
replete
with
references to plaintiff's history of drug and alcohol abuse or
dependence.
In
discrediting
plaintiff,
the
ALJ discussed
that
plaintiff has consistently minimized the seriousness of her alcohol
abuse.
Indeed,
Dr.
Duvall expressed concern about plaintiff's
relatively short period of sobriety at the time he rendered his
opinion.
Plaintiff testified at the January 5, 2012 hearing that
she had not
used alcohol
in one
year,
had received a
DUI
the
previous year, but had given up marijuana only two months earlier.
Tr. 40.
Here, the ALJ did not find plaintiff disabled, and thus
did not reach the question of materiality concerning her alcohol or
drug use.
See generally Parra v. Astrue, 481 F.3d 742, 746-47 (9th
22 - OPINION AND ORDER
Cir. 2007) (discussing the required drug and alcohol analysis under
20 C.F.R.
(9th Cir.
§
404.1535); Bustamante v. Massanari, 262 F.3d 949,
2001) (claimant's mental impairments must be evaluated
separately from drug and alcohol analysis).
me,
955
outstanding
issues
remain
that
must
On the record before
be
resolved
before
a
disability determination can be made.
Based on the foregoing,
I exercise discretion under Connett
and conclude a remand for further proceedings consistent with this
Opinion and Order is required to permit the ALJ:
the opinion Dr.
Duvall;
(2)
(1) to reconsider
to consider whether any new findings
made by the ALJ alter the evaluation of plaintiff's RFC or affect
the decision as to whether plaintiff is capable of performing other
work that exists in significant' numbers in the national economy,
with assistance of a vocational expert if necessary;
and
(3)
if
plaintiff is found to be disabled, the ALJ must determine whether
plaintiff's drug or alcohol addiction is a contributing factor that
is ftmateriala to the finding of disability.
Ill/
Ill/
Ill/
/Ill
Ill/
Ill/
Ill/
23 - OPINION AND ORDER
CONCLUSION
For
decision
the
reasons
denying
stated
benefits
to
above,
the
plaintiff
Commissioner's
is
REVERSED
final
and
this
proceeding is REMANDED pursuant to sentence four of 42 U.S.C.
§
405 (g)
for further administrative proceedings consistent with
this opinion.
IT IS SO ORDERED.
DATED this
_i_J_ day of AUGUST, 2014.
Malcolm F. Marsh
United States District Judge
24 - OPINION AND ORDER
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