Geihsler v. Commissioner Social Security Administration

Filing 20

Opinion and Order: The ALJ erred in not giving great weight to the VA determination that Geihsler was 100 percent disabled as of October 31, 2012. The Commissioner's decision is reversed. This matter is remanded for an award of benefits. Signed on 6/21/2016 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL ALLEN GEIHSLER,
Plaintiff,

Civ. No. 3:15-cv-00485-MC

v.

OPINION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Michael Allen Geihsler brings this action for judicial review of the
Commissioner’s decision denying his application for disability insurance benefits and
supplemental security income. Geihsler filed an application alleging a disability onset date of
November 18, 2011. After a hearing, the administrative law judge (ALJ) determined Geihsler
was not disabled. Tr. 89-90.1 Geihsler alleges the ALJ made numerous errors. As relevant here,
the ALJ erred in not giving great weight to the Department of Veterans Affairs (VA)
determination that Geihsler was 100% disabled as of October 31, 2012. The Commissioner’s
decision is REVERSED and this matter is REMANDED for an award of benefits.

1

“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

1 – OPINION AND ORDER

STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“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
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity (RFC),
age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant

2 – OPINION AND ORDER

numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262
F.3d 949, 953-54 (9th Cir. 2001).
On July 25, 2013, the VA assigned Geihsler a permanent, 100% disability evaluation as
of October 31, 2012 based on a diagnosis of bipolar II disorder with psychotic features. Tr. 331.
The VA based that determination on, in addition to other evidence, Geihsler’s VA counseling file
and a December 4, 2012 VA exam. Tr. 333. The VA noted Geihsler’s numerous symptoms,
including suicidal ideation, persistent hallucinations and delusions, difficulty adapting to
stressful circumstances, near-continuous panic affecting the ability to function independently,
and a Global Assessment of Function (GAF) score of 45.2 Tr. 334.
Ordinarily an ALJ must give great weight to a VA disability determination. McCartey v.
Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). This is so because the VA and Social Security
Administration are both federal disability programs with many similarities. Id. “The VA criteria
for evaluating disability are very specific and translate easily into SSA’s disability framework.”
Id. Despite the similarities, an ALJ is not bound by a VA disability determination. To give less
weight to a VA disability determination, the ALJ must provide “persuasive, specific, valid
reasons for doing so that are supported by the record.” Id. Here, in addressing the VA
determination, the ALJ stated:
The claimant’s service connected bipolar disorder was recently increased to a
100% service connected disability for the purposes of VA benefits. While I give
some weight to the VA rating in terms of disability, I have to question finding the
claimant 100% disabled on October 31, 2012 because at the time, he was drinking
alcohol on a daily basis. At hearing, the claimant testified that he drank four
bourbons a day until January 1, 2013. He admitted that such consumption resulted
in his being inebriated. Such continued alcohol abuse undermines the claimant’s
claim that his affective disorder (rather than alcohol misuse) diminished his
functionality.

2

A GAF score of 41-50 indicates serious symptoms or any serious impairment in social, occupational, or school
functioning.

3 – OPINION AND ORDER

Tr. 84 (internal citations omitted).
While focusing on Geihsler’s alcohol abuse is certainly a specific reason for the ALJ’s
decision to give little weight to the VA determination, it is neither valid nor supported by the
record. The VA was certainly aware of Geihsler’s alcohol abuse. Throughout the hundreds of
pages of VA records, there are abundant notes of Geihsler’s alcohol use. The ALJ pointed to
those records, and the fact that Geihsler gave inconsistent reports to the VA about his alcohol
abuse, to discredit the VA determination (and later Geihsler himself).
The VA based its determination in part on the evaluation by Bethany A. Franklin-Comb,
PsyD. The ALJ gave little weight to this opinion because Geihsler was inconsistent about his
alcohol use. Tr. 85. Dr. Franklin-Comb reviewed Geihsler’s entire file. Tr. 1318. As noted,
Geihsler’s VA records revealed his many inconsistent statements regarding alcohol use. While
Dr. Franklin-Comb mentioned Geihsler self-report he rarely drinks alcohol, she also noted
Geihsler’s history of alcohol abuse. She was well aware of Geihsler’s relationship with alcohol
when she made her diagnosis. Tr. 1320. Dr. Franklin-Comb concluded Geihsler’s
“schizophrenia, anxiety, and depressive symptoms all combine to reflect a single diagnosis of
Bipolar II Disorder with psychotic features.” Tr. 1321. Despite noting Geihsler likely had the
disorder for 30 or so years, and despite noting Geihsler’s history of alcohol abuse, Dr. FranklinComb did not indicate Geihsler’s impairments were materially impacted by alcohol abuse.
Instead, Dr. Franklin-Comb concluded Geihsler’s bipolar disorder “appears to negatively affect
his persistence and pace, motivation, productivity, and ability to socially interact with others on a
consistent basis due to frequent bouts of major depression with suicidal ideation and planning.
He appears hopeless and fatigued which negatively affects his ability to navigate the
employment system . . . .” Tr. 1321.

4 – OPINION AND ORDER

Dr. Franklin-Comb’s opinion is entirely consistent with the medical records. On several
occasions, Geihsler’s disorder resulted in week-long hospitalizations. Geihsler has several welldocumented instances of suicidal ideation, mainly consisting of driving next to trains while
pondering crossing onto the tracks. Geihsler’s last hospitalization resulted in him losing his
managerial position at McDonalds. The conclusion that Geihsler’s disorder, and not his
alcoholism, contributed to his impairments, is also supported by the record. Even the state
agency reviewing psychologists concluded that while Geihsler’s alcoholism “is still a concern,”
it “is not the primary issue.” Tr. 905. The ALJ gave that opinion great weight, but apparently
overlooked the conclusion that Geishler’s disorder, and not his alcoholism, resulted in his
limitations.
The ALJ also erred in focusing on Geihsler’s admitted ability to perform work for short
periods of time, and not on Geihsler’s inability to sustain consistent periods of employment over
the course of several months or years. The ALJ pointed out that Geihsler worked at the VA in a
sheltered environment. Tr. 86. As Geihsler explained at the hearing however, that was work
performed while Geihsler was being treated at the VA and was simply work therapy designed to
assess Geihsler’s capacity to work. Tr. 57. Geihsler’s attorney even pointed out that the VA
position was a “sheltered and/or supportive work environment” and thus did not qualify as
gainful employment. Tr. 58. That one can work for a few months in a sheltered environment
does not translate to a conclusion that one is capable of sustaining regular, full-time employment
over the course of several months or years.
Geihsler’s symptoms, like those of many mental health patients, waxed and waned over
the years. See Garrison v. Covlin, 759 F.3d 995, 1017-18 (9th Cir. 2014). No treating or
examining physician (or “other source”) concluded Geihsler was capable of sustaining full-time

5 – OPINION AND ORDER

employment over the long term. That Geihsler often responded positively to his hospitalizations
does not mean he can function day in and day out in a regular work environment. The ALJ noted
that Geihsler often “copes with some life changes by becoming suicidal.” Tr. 86. That finding
has ample support in the record and further indicates Geihsler is incapable of maintain full-time
gainful employment.
The court has discretion to remand either for further proceedings or an award of benefits.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). In the Ninth Circuit:
Remand for further administrative proceedings is appropriate if enhancement of
the record would be useful. Conversely, where the record has been developed
fully and further administrative proceedings would serve no useful purpose, the
district court should remand for an immediate award of benefits. More
specifically, the district court should credit evidence that was rejected during the
administrative process and remand for an immediate award of benefits if (1) the
ALJ failed to provide legally sufficient reasons for rejecting the 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.
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).
The VA concluded that as of October 31, 2012, Geihsler’s bipolar disorder rendered him
100% disabled. That conclusion is entitled to great weight. This matter is remanded for an award
of benefits as of October 31, 2012.3
////
////
////
////
////
////

3

Because the VA determination is controlling here, I need not discuss Geihsler’s other allegations of error.

6 – OPINION AND ORDER

CONCLUSION
The ALJ erred in not giving great weight to the VA determination that Geihsler was
100% disabled as of October 31, 2012. The Commissioner’s decision is REVERSED. This
matter is REMANDED for an award of benefits
IT IS SO ORDERED.
DATED this 21st day of June, 2016.
_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge

7 – OPINION AND ORDER