Mahmood v. Commissioner, Social Security Administration
Filing
27
OPINION AND ORDER. Signed on 10/14/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KUESTAN JALAL MAHMOOD
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
PHYLLIS J. BURKE
3800 NE Sandy Blvd. Ste. 226
Portland, OR 97232
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
Case No. 3:13-cv-01598-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Kuestan Jalal Mahmood seeks judicial review of the
final decision of the Commissioner of Social Security denying her
application
for
Supplemental
Security
Income
(SSI)
benefits under Title XVI of the Social Security Act,
1381-1383f.
disability
42 U.S.C.
§§
This Court has jurisdiction pursuant to 42 U.S.C.
§§
405(g) and 1383(c) (3).
For the reasons that follow, I reverse and
remand for an immediate calculation and award of benefits.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed an application for SSI on October
30,
2009,
alleging disability beginning April 19,
weakness, cough, and depression.
initially and upon reconsideration.
2009,
due to
Plaintiff's claims were denied
Plaintiff filed a request for
a hearing before an administrative law judge (ALJ).
An ALJ held a
hearing on December 21, 2011, at which plaintiff appeared with her
attorney and testified.
A vocational expert, Amberly Ruck, also
appeared at the hearing and testified.
issued
an
unfavorable
decision.
On January 5, 2012, the ALJ
The
Appeals
Council
denied
plaintiff's request for review, and therefore, the ALJ's decision
became the
final
decision of the
Commissioner
for
purposes of
review.
Born in 1968, plaintiff was 41 years old on the date of the
ALJ's adverse decision.
Plaintiff is an Iraqi-Kurdish woman who
immigrated to the United States in 1997.
2 - OPINION AND ORDER
Plaintiff speaks English
as
a
Plaintiff received a
second language.
civil engineering
degree in Iraq and an associate's degree in computer technology in
the
United
States.
Plaintiff
has
past
relevant
work
as
a
caregiver, cashier, and grocery bagger.
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 dispositive.
burden of proof at
steps one
through
§§
Bowen v.
404.1520; 416.920.
The claimant bears
four.
·See Valentine
the
v.
Commissioner Soc.
Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009);
Tackett v.
180 F. 3d 1094,
1098
shifts
Commissioner
five,
Apfel,
the burden
to
the
(9th Cir.
to
1999).
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.
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: a chronic cough, depression, gait ataxia, and anemia.
At
step three,
the ALJ found that
combination of impairments,
listed impairment.
3 - OPINION AND ORDER
plaintiff's
impairments,
or
did not meet or medically equal a
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform a limited range of medium work in that plaintiff
can lift 50 pounds occasionally and 25 pounds frequently; she can
stand, walk, and sit for at least six hours in an eight hour day;
she should not work at unprotected heights or around hazardous
machinery; she should not be required to balance on narrow beams;
she should avoid concentrated exposure to noxious fumes and odors;
she is limited to occasional interaction with coworkers and the
public;
and
she
should not
perform any
work
requiring
verbal
reports because of her limited English skills.
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 economy that plaintiff can perform,
cleaner
and
dishwasher /kitchen
helper.
such as a night
Accordingly,
the
ALJ
concluded that plaintiff has not been under a disability under the
Social Security Act from October 20, 2009 through the date of the
decision.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the ALJ committed
the following errors:
(1) failed to properly evaluate the opinions
of treating physician J. Mark Kinzie, M.D.,
physician Jill Glazewski,
4 - OPINION AND ORDER
M. D.;
(2)
Ph.D., and examining
failed to properly evaluate
plaintiff's
testimony;
environmental
limitations
Martin Kehrli,
Ph.D.;
and
M. D.,
(4)
the
failed
( 3)
described
Richard Alley,
ALJ
failed
to
to
by
include
in
nonexamining
M. D.,
and
properly
Paul
the
RFC
physicians
Rethinger,
evaluate
the
lay
testimony of plaintiff's brother Aram Mahmood.
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.
622
Astrue,
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.
Ryan v.
supports or
Commissioner
Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008); Martinez v.
Heckler,
807 F.2d 771,
772
decision must be upheld,
(9th Cir.
1986).
The Commissioner's
even if 'the evidence is susceptible to
more than one rational interpretation.
Batson v. Commissioner Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
If the evidence
supports the Commissioner's conclusion, the Commissioner must be
affirmed; "the court may not substitute its judgment for that of
5 - OPINION AND ORDER
the Commissioner."
Edlund v. Massanari,
253 F.3d 1152, 1156 (9th
Cir. 2001).
DISCUSSION
I.
The ALJ Did Not Properly Evaluate the Treating and Examining
Physicians' Medical Opinions
A.
Standards
In general, the opinion of a treating physician is given more
weight than the opinion of an examining physician, and the opinion
of an examining physician is afforded more weight than the opinion
of a nonexamining physician.
Ghanim v. Colvin, 763 F.3d 1154, 1160
(9th Cir. 2014); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
"If a treating physician's opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence
record,
631
[it will be given] controlling weight."
(internal
C. F.R.
§
quotations
416. 927 (c).
treating physician,
omitted) (alterations
in
[the]
case
Orn, 495 F.3d at
in
original);
20
To reject the uncontradicted opinion of a
the ALJ must provide "clear and convincing
reasons that are supported by substantial evidence." Bayliss v.
Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005).
If the treating physician's opinion is contradicted, the ALJ
must consider how much weight it is entitled to considering the
factors in 20 C.F.R.
§
416.927(c)(2-6).
The factors include the
length of the treatment relationship, the frequency of examination,
6 - OPINION AND ORDER
the nature and supportability of the opinion, and its consistency
with
other
evidence
in
the
record
as
a
20
whole.
C.F.R.
§
416. 927 (d) (2-6); Ghanim, 763 F.3d at 1161.
If a treating or examining doctor's opinion is contradicted by
another
doctor's
opinion,
F.3d 1228,
1232
specific
and
Taylor v. Commissioner Soc. Sec. Admin.,
legitimate reasons.
it
659
(9th Cir.
may
be
2011).
rejected
by
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.
B.
Id.
J. Mark Kinzie, M.D., Ph.D.
Plaintiff argues that the ALJ failed to provide sufficient
reasons for discounting the opinion of .J, Mark Kinzie, M.D., Ph.D.
Dr.
Kinzie
is
Intercultural
plaintiff's
Psychiatric
University (OHSU).
treating
Program
at
psychiatrist
Oregon
through
Health
the
& Science
Dr. Kinzie treated plaintiff from 2006 through
2011, diagnosing her with Major Depressive Disorder, severe, nonpsychotic.
Dr.
Kinzie has treated plaintiff with a variety of
anti-depressant medications
treatment
notes
frequently
with
little
describe
success.
plaintiff
Dr.
as
Kinzie' s
depressed,
tearful, without hope, noting that she suffers from insomnia and
occasional suicidal ideation,
and consistently assigned a GAF of
50. 1
1
The GAF scale is used to report a clinician's judgment of
the patient's overall level of functioning on a scale of 1 to
100. A GAF of 41-50 indicates serious symptoms (suicidal
7 - OPINION AND ORDER
Dr.
Kinzie
submitted
two
opinions
plaintiff's social security application.
in
connection
with
In a December 8,
2011
letter, Dr. Kinzie opined that plaintiff is unable to work.
Tr.
350.
In
a
December
15,
2011
letter,
Dr.
Kinzie
opined
that
plaintiff meets the criteria of Listing 12.04, indicating that she
has moderate restrictions of activities of daily living, marked
difficulties
in
maintaining
social
functioning,
and
marked
difficulties maintaining concentration, persistence and pace.
Tr.
351-52. Dr. Kinzie explained that plaintiff is isolated socially,
and is withdrawn even within her family, and that she avoids going
out in public,
and when she does,
Tr.
Kinzie
351.
Dr.
is accompanied by her mother.
also noted that plaintiff has difficulty
controlling her emotions,
is overly sensitive to criticism,
and
would have considerable difficulty interacting appropriately with
co-workers and supervisors.
Tr. 351.
Dr. Kinzie explained that
plaintiff has remarkably slowed speech, movement, and cognition,
has
difficulty
persisting,
and
because she is easily overwhelmed.
her
concentration
is
impaired
Tr. 352.
Dr. Kinzie also opined that plaintiff would have difficulty
maintaining regular attendance, that any increase in mental demands
would cause plaintiff to decompensate, and that she would likely be
ideation, severe obsessional rituals frequent shoplifting) or any
serious impairment in social, occupational, or school functioning
(e.g., few friends, unable to keep a job). Diagnostic and
Statistical Manual of Mental Disorders IV (DSM-IV) p. 31-34 (4th
ed. 2000).
8 - OPINION AND ORDER
absent from work more than two days per month due to her condition.
Tr. 352-54.
Because Dr.
Kinzie's opinion was contradicted, 2 the ALJ was
required to provide specific and legitimate reasons,
substantial evidence, to reject his opinion.
backed by
Bayliss, 427 F.3d at
In the decision, ·the ALJ gave Dr. Kenzie's opinion "little
1216.
weight" because: (1) it is inconsistent with plaintiff's activities
of daily living (ADLs); (2) the limitations described by Dr. Kinzie
are inconsistent with plaintiff's ability to work as her father's
caregiver
until
limitations Dr.
his
death
in
2009;
and
(3)
the
severity
of
Kinzie describes are inconsistent with treatment
notes from OHSU showing that plaintiff has been searching for work
and that her depression stems from her inability to find work.
Having carefully reviewed the record,
I
conclude that the ALJ's
reasoning falls short.
2
Joshua J. Boyd, Psy.D., a nonexamining psychologist,
completed a Psychiatric Review Technique form on July 16, 2010,
opining that plaintiff's major depressive disorder causes only
mild restrictions in her activities of daily living, maintaining
social functioning, and maintaining concentration, persistence
and pace.
Tr. 279-91.
Dr. Boyd also noted that plaintiff was
grieving her father's death, and that the severity of her
symptoms was not expected to persist.
Tr. 291.
Dr. Boyd's
opinion was affirmed on reconsideration.
Tr. 85-89.
Plaintiff
contends that the ALJ should have applied the clear and
convincing standard to reject Dr. Kinzie's opinion because Dr.
Boyd's opinion is not supported by substantial evidence.
Because
the ALJ's reasoning fails to reach even the less rigorous
specific and legitimate standard, resolution of this issue is
unnecessary.
9 - OPINION AND ORDER
A claimant's ability to engage in daily activities that are
incompatible with the severity of symptoms described by a treating
physician is an appropriate basis upon which to discredit that
opinion.
Sec.
Ghanim,
Admin.,
between a
763 F.3d at 1162; see Morgan v.
169 F.3d 595,
600-02
treating physician's
activities
a
specific
and
(9th Cir.
opinion and
legitimate
Comm'r of Soc.
1999) (inconsistency
a
reason
claimant's
to
daily
discount
treating physician's opinion); Batson, 359 F.3d at 1196.
the
However,
none of the ADLs performed by plaintiff exceed the limitations
described by Dr. Kinzie.
indicated
that
In his December 2011 opinion, Dr. Kinzie
plaintiff
has
moderate
difficulties
with
ADLs,
explaining that plaintiff is able to perform some simple household
chores, but plaintiff relies upon her mother for assistance because
plaintiff spends a great deal of time in bed due to depression,
fatigue, and insomnia.
Id.
Dr. Kinzie's opinion is wholly supported by the record.
plaintiff
reported
performing
simple
household
chores
While
such
as
limited cooking, cleaning, laundry, she consistently reported that
completing such tasks takes a long time, and that she performs them
infrequently.
Tr. 178, 193.
Additionally, plaintiff consistently
reported grocery shopping and attending her doctors' appointments
with her mother's assistance.
Kinzie' s
treatment
notes
Tr.
178,
repeatedly reflect
difficulty sleeping and frequent fatigue.
10 - OP.INION AND ORDER
259-60,
268.
And,
Dr.
that plaintiff had
Tr. 248, 252, 255, 320,
32 6,
327,
330-31,
329'
determination
that
Dr.
335,
337.
Kinzie's
I
conclude
opinion
is
the
ALJ's
inconsistent
plaintiff's ADLs is not supported by substantial evidence,
therefore,
does
not provide a
reject his opinion.
Molina v.
specific or
Astrue,
with
and
legitimate basis to
674 F. 3d 1104,
1113
(9th
Cir. 2012).
Plaintiff's ability to act as her father's caregiver is not a
specific or legitimate reason to reject Dr. Kinzie's opinion when
viewed
in
the
context
of
the
entire
record.
Here,
plaintiff
reported acting as her father's caregiver for only three hours per
day,
five days a week.
Tr.
170.
And,
plaintiff consistently
described that she performed these activities with assistance from
her mother, and that she was responsible for reading the English on
her father's paperwork and medication instructions while her mother
was responsible for the physical tasks.
Tr.
57-58.
Plaintiff's
ability to serve as her father's caregiver for 15 hours a week with
assistance from her mother is not inconsistent with the moderate
limitations in ADLs described by Dr. Kenzie.
Thus, the ALJ erred
in rejecting Dr. Kinzie's opinion on this basis.
A conflict between treatment notes and a treating provider's
opinions
may
opinion.
Ghanim, 763 F.3d at 1161.
Kinzie' s
opinion
plaintiff
was
constitute
finding
looking
11 - OPINION AND ORDER
an
adequate
that
for
OHSU
reason
to
discredit
that
Here, the ALJ discounted Dr.
treatment
employment
and
notes
that
show
that
plaintiff's
depression sterruned from her inability to find employment, citing
Exhibit lOF.
Sedighi,
Exhibit lOF consists of treatment notes from Behjat
QMHP,
a
Kurdish/English
speaking
counselor
at
the
Intercultural Psychiatric Program at OHSU who counseled plaintiff
from 2006 to 2011,
opinion.
Tr.
indicates
and concurred with Dr. Kinzie's December 2011
301-317,
that
354.
A December 11,
plaintiff
has
been
2008 treatment note
unsuccessful
in
finding
employment, and that she resists "looking for less demanding jobs
in lower level" because plaintiff finds it "degrading."
And,
a
February
5,
2008
working in a lower job.
note
reflects
Tr. 312.
that
Tr. 309.
plaintiff
resists
Contrary to the ALJ's finding,
there is no indication in either Bejhat Sedighi's or Dr. Kinzie's
treatment notes
showing that
plaintiff continued job searching
See Ghanim, 763 F.3d at 1164 (ALJ may not cherry-pick
after 2008.
statements in physician's evaluations,
but must consider entire
diagnosis and observations of impairment); Holohan v. Masanari, 246
F. 3d 1195,
1205
(9th Cir.
2001) (ALJ may not
rely on selective
statements pulled from physician's treatment notes;
must
examine
"overall
diagnostic
picture").
instead ALJ
Indeed,
after
plaintiff's alleged onset date, Behjat Sedighi's notes, like those
of Dr. Kinzie, repeatedly reflect that plaintiff experienced severe
symptoms,
including
tearfulness,
unemployment
profound
hopelessness
and
financial
12 - OPINION AND ORDER
and
depression,
ongoing
situation.
low
stress
Tr.
305,
self-esteem,
due
to
her
307-08.
More
importantly, Dr. Kinzie attributed plaintiff's poor motivation and
lack of follow-through with seeking employment as secondary to her
depression.
Tr. 248-49, 340, 352.
Because the ALJ's determination
is not supported by substantial evidence,
the ALJ has failed to
provide sufficient, specific or legitimate reasons to reject Dr.
Kinzie's opinion, I conclude the ALJ has erred.
C.
Jill Glazewski, M.D.
Plaintiff contends that the ALJ erred in failing to credit the
opinion
of
Jill
Glazewski,
M.D.,
an
examining
physician
who
performed a comprehensive psychiatric evaluation on May 31, 2010.
Tr.
266-70.
Dr.
Glazewski
observed
that
on
a
recall
test,
plaintiff only was able to recall one of three, her responses to
serial 7s were slow, and her ability to spell "world" forward and
backward was "slowed considerably given her level of education."
Tr. 266.
Dr. Glazewski diagnosed plaintiff with Major Depressive
Disorder, without psychotic features.
Dr. Glazewski offered the
following opinion about plaintiff's ability to work:
Based on mental heal th status there are barriers that
interfere with her functional capacities to perform work
activity. These barriers include her depressed mood, her
psychomotoric slowing,
her cognitive slowing,
her
lability and extreme tearfulness.
These barriers are
likely to impair her ability to complete detailed and
complex tasks.
They are also likely to impair her
ability to interact with coworkers and the public, and
impair her consistency in the workplace and her ability
to complete tasks as well as a workday or workweek.
The ALJ gave "some weight" to Dr.
Glazewski' s opinion that
plaintiff is limited in her ability to interact with coworkers and
13 - OPINION AND ORDER
the public,
but discounted Dr.
Glazewski's opinion because:
plaintiff was able to obtain an associate' s
(1)
degree in computer
technology in 2005, and that her symptoms have not worsened since
2005; and (2) plaintiff was able to act as her father's caregiver
until his death in 2009.
While plaintiff did complete her two-year associate's degree
in 2005, she did so some four years prior to her alleged onset date
and it is unclear from the record whether plaintiff attended school
full time or part time.
And,
contrary to the ALJ's conclusion,
plaintiff's depression became more severe after 2005.
To be sure,
in November of 2006, plaintiff sought treatment for her depression
at the OSHU clinic, where she reported to counselor Behjat Sedighi
that her depression had worsened over the previous six to seven
months,
with increased feelings of anhedonia,
appetite, very poor sleep, and insomnia.
Tr.
hopelessness, poor
343.
Dr.
Kinzie's
initial November 22, 2006 psychiatric evaluation similarly reflects
that plaintiff struggled with depression her entire adult life but
she
reported increased depression and hopelessness
after being
unsuccessful in finding employment following completion of school
in 2005.
Tr. 248.
Dr. Kinzie's notes show that plaintiff went to
the unemployment department "at times" for job interviews, but that
plaintiff lacked motivation, had no friends,
Tr. 248.
and stayed at home.
Thus, I conclude that discounting Dr. Glazewski's opinion
because plaintiff
completed school in 2005 and her symptoms had
14 - OPINION AND ORDER
not increased,
is not
supported by substantial evidence in the
record.
And, as discussed above with respect to Dr. Kinzie, I conclude
that plaintiff's ability to act as a caregiver for 15 hours a week
in her home with the assistance of her mother is not a specific and
legitimate reason to discount Dr. Glazewski's opinion.
Therefore,
I conclude that the ALJ has erred by failing to provide sufficient,
specific and legitimate reasons backed by substantial evidence to
reject Dr. Glazewski's opinion.
In summary, I find it significant that the medical providers
who have examined plaintiff consistently endorsed severe depressive
symptoms
that
effect
plaintiff's
concentration, persistence and pace.
social
functioning
and
Rather than addressing the
severity of plaintiff's symptoms in these areas of concern, the ALJ
has focused on limited, weak evidence of plaintiff's activities of
daily living.
Indeed,
the ALJ's focus on plaintiff's ability to
handle a limited amount of daily chores inside her home and to
leave her house with the assistance of her mother over the opinion
of
her
treating
evaluations,
and
psychiatrist
(Dr.
Kinzie)
an examining physician
similar limitations, is erroneous.
with
(Dr.
five
years
Glazewski)
of
noting
To be sure, the vast weight of
the record, aside from the limited quantum of supporting evidence
cited by the ALJ, demonstrates that plaintiff suffers from severe
depression,
with
marked
15 - OPINION AND ORDER
limitations
in
her
ability
to
handle
working at an acceptable pace for an entire workweek.
In short,
the ALJ failed to cite specific and legitimate reasons, supported
by substantial evidence to .discount the opinions of Drs. Kinzie and
Glazewski.
II.
Plaintiff's Testimony
To
determine
whether .a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
20 C.F.R.
§
416.929.
The first stage is a
threshold test in which the claimant must produce objective medical
evidence
of
an
underlying
impairment
that
Tommasetti v. As true,
reasonably be
Molina,
expected to produce the symptoms alleged.
1112;
could
674 F.3d at
533 F. 3d 1035, 1039 (9th Cir. 2008) .
At the second stage of the credibility analysis, absent affirmative
evidence of malingering, the ALJ must provide clear and convincing
reasons for discrediting the claimant's testimony regarding the
severity of the symptoms.
Admin.,
533
F.3d
1155,
Carmickle v.
1166
(9th
Cir.
Commissioner Soc.
2008);
Sec.
Lingenfelter
v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
the
ALJ
did
not
arbitrarily discredit the claimant's testimony. Ghanim, 763 F.3d at
1163; Tommasetti, 533 F.3d at 1039.
Factors the ALJ may consider
when making such credibility determinations include the objective
medical evidence, the claimant's treatment history, the claimant's
16 - OPINION AND ORDER
daily activities,
inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant character
evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
Plaintiff testified at the hearing that she received a two
year degree
as
an engineering technician and worked part time
before being forced to leave Iraq in 1998.
Once in the United
States, plaintiff testified that she has worked few jobs for short
periods of time, such as McDonald's, but was let go because she did
not work fast enough.
Tr. 55-56.
Plaintiff also testified that
she worked as her father's caregiver for about 18 months until her
father died in April of 2009.
Plaintiff stated that she received
help from her mother to care for her father,
did the physical parts of the
job,
and that her mother
and that she assisted with
taking her father to doctors' appointments and reading medication
instructions.
Tr. 57-58.
Plaintiff testified that she is not as
quick mentally or physically as she was before her father's death.
Plaintiff described
that
she
cannot
afford medication
for
her
asthma, she receives food stamps, and lives in public assistance
housing.
Plaintiff testified that she cries four or five times a day,
and that she lies down alone in her room for several hours each day
due to her depression.
Tr.
61.
Plaintiff stated that she has
severe anemia, which also contributes to her fatigue.
Plaintiff
testified that she goes grocery shopping with her mother, who is 65
17 - OPINION AND ORDER
years old, and that her mother must carry the groceries when they
are heavy because she is too weak and tired.
In
the
credible..
she
has
decision,
the
ALJ
found
Tr. 69.
plaintiff
only
partially
The ALJ discredited plaintiff's testimony because:
not
received
any
regular
medical
treatment;
(2)
( 1)
she
traveled to Iraq in October 2009; and (3) plaintiff's unemployment
is
due
to
the
poor
underemployed.
economy
and
her
unwillingness
to
be
The ALJ's reasons fail to reach the clear and
convincing level.
An "unexplained, or inadequately explained,
failure to seek
treatment" may be the basis for an adverse credibility finding.
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
However, lack of
medical treatment due to an inability to afford medical treatment
does not support an adverse credibility determination.
F. 3d at 638.
Here,
advantage
low
of
testimony.
Orn,
495
the ALJ noted that plaintiff had not taken
cost
or
free
clinics,
and
discounted
her
The ALJ's reasoning is flawed.
Plaintiff's primary reason for seeking disability is for her
mental impairment, not her physical impairments, and to that end
plaintiff has regularly sought treatment for her depression through
Dr.
Kinzie
and
Behjat
Sedighi
at
the
OHSU
available to her due to her immigrant status.
clinic,
which
is
Therefore, contrary
to the ALJ'.s conclusion, plaintiff was taking advantage of low-cost
clinics
available
to
18 - OPINION AND ORDER
her
for
treatment
of
her
most
severe
condition.
Tr. 60.
Thus, on the record before me, the ALJ's first
reason is not supported by substantial evidence.
I also conclude that plaintiff's ability to travel to Iraq in
Here, plaintiff
2009 is not inconsistent with her limitations.
alleges that she is limited physically by weakness, cough, fatigue
and limited mentally by depression - none of which is inconsistent
with long-distance air travel.
Cf.
Tommasetti,
533 F.3d at 1040
(discrediting claimant in part because his travel to Venezuela was
inconsistent
with
restrictions) .
his
alleged
low
back
pain
and
mobility
The ALJ erred in discrediting plaintiff on this
basis.
Lastly,
as
detailed
above,
substantial
evidence
does
not
support the ALJ's finding that plaintiff's unemployment is due to
plaintiff's
unwillingness
to
be
underemployed
or
the
economy.
Plaintiff testified that she was terminated for working to slowly
when employed by McDonald's.
Moreover,
Dr.
Kinzie opined that
plaintiff's lack of motivation and follow through with seeking
employment
was
secondary to
her depression.
Therefore,
after
carefully reviewing the record as a whole, I conclude that the ALJ
has erred by failing to cite clear and convincing reasons, backed
by substantial evidence, for discrediting plaintiff's testimony.
Because the errors identified are outcome determinative,
decline to address plaintiff's remaining errors.
/Ill
19 - OPINION AND ORDER
I
III. Remand
After finding the ALJ erred, this court applies a three part
test to determine whether the case should be remanded for further
proceedings,
Colvin,
or to calculate and award benefits.
Garrison v.
759 F.3d 995, 1020 (9th Cir. 2014), Vasquez,
593; Harman v. Apfel,
2.11 F.3d 1172,
1178
(9th Cir.
572 F.3d at
2000).
The
court should grant an immediate award of benefits when these three
conditions are met:
( 1) the record has been fully developed and further
administrative proceedings would serve no useful purpose,
(2) the ALJ has failed to provide legally sufficient
reasons
for
rejecting
evidence,
whether
claimant
testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would
be required to find the claimant disabled on remand.
Garrison, 759 F.3d at 1020.
Where, after evaluating the record as a whole, there are serious
doubts
that the claimant is,
exercise
its
discretion
administrative proceedings.
and
in fact,
disabled,
remand
the
case
the court may
for
further
Id. at 1021; Connett v. Barnhart, 340
F.3d 873, 876 (9th Cir. 2003).
Here,
satisfied.
all
the
conditions
of
the
credit-as-true
failed to provide legally sufficient
of
are
First, the record has been fully developed and there
is no need for further administrative proceedings.
opinion
rule
Dr.
Kinzie
Glazewski's opinion,
and
assigning
reasons for
only
some
Second, the ALJ
rejecting the
weight
to
Dr.
and for discrediting plaintiff's testimony.
Third, if Ors. Kinzie and Glazewski's opinions are credited as true
20 - OPINION AND ORDER
the ALJ would be required to find plaintiff disabled at either Step
Garrison, 759 F.3d at 1022; Holohan,
Three or Step Five on remand.
246 F.3d at 1211.
Indeed,
Kinzie opined that pl~intiff has suffered from
Dr.
Major Depressive Disorder for at least two years, and that she has
marked
limitations
persistenc~
with
social
functioning
and
concentration,
and pace, thus satisfying the "A" and "B" criteria of
Listing 12.04.
Also, Dr. Kinzie opined that plaintiff would miss
two or more days each month due to her depressive symptoms.
354.
Tr.
Dr. Glazewski similarly opined that plaintiff's depressive
symptoms would impair her ability to complete tasks in a regular
workday or workweek.
was
absent
from
Tr. 270.
work
for
The VE testified that if a person
two
employment would be precluded.
or
days
Tr. 76.
a
month,
competitive
The VE also testified that
a person who works at a 75 percent pace compared to that of an
average employee, or needed extra rest breaks each day, would be
precluded from competitive employment.
Tr. 75.
Therefore, there
are no outstanding issues that require resolution.
Lastly,
considering
the
record
as
a
whole
and
the
Commissioner's arguments, I have no basis to doubt that plaintiff
disabled under the Act.
Therefore, the proper remedy is to remand
for calculation of benefits.
Ill/
Ill/
21 - OPINION AND ORDER
Garrison, 759 F.3d at 1022-23.
CONCLUSION
For
decision
the
reasons
denying
stated
benefits
to
above,
the
plaintiff
Commissioner's
is
REVERSED
and
final
this
proceeding is REMANDED for an immediate calculation and award o-f
benefits.
IT IS SO ORDERED.
DATED this
__j_!f
day of OCTOBER, 2014.
Malcolm F. Marsh
United States District Judge
22 - OPINION AND ORDER
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