Wright v. Commissioner Social Security Administration
Filing
23
OPINION AND ORDER. The Commissioner's decision is REVERSED and REMANDED for further proceedings and a partial award of benefits. See formal OPINION AND ORDER. Signed on 7/6/2016 by Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KIMBERLY SUE WRIGHT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Nancy J. Meserow
Law Office of Nancy J. Meserow
7540 SW 51st Avenue
Portland, OR 972219
Attorney for plaintiff
Janice E. Hebert
Assistant United States Attorney
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Heather L. Griffith
Special Assistant United States Attorney
Office of General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No. 3:15-cv-01356-AA
OPINION AND ORDER
AIKEN, Judge:
Plaintiff Kimberly Sue Wright brings this action pursuant to the Social Security Act ("Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"). The Commissioner denied plaintiff's application for Title II disability
insurance benefits. For the reasons set forth below, the Commissioner's decision is reversed and this
case is remanded for further proceedings and a partial award of benefits.
BACKGROUND
Born October 25, 1961, plaintiff was 40 years old when she alleges she became disabled and
52 years old on the date of her disability hearing. Tr. 191. She completed the tenth grade and
earned her GED. Tr. 59. Her most significant work history is as a licensed correctional officer, a
job she performed full-time for four years in the early 1990s. Tr. 204, 211. She also has worked as
a hair stylist, care provider, fast food cashier, motel clerk, and gas station attendant. Tr. 204, 211.
In her application for benefits, plaintiff alleged she suffers from bipolar disorder, post
traumatic stress disorder, and attention deficit hyperactivity disorder. Tr. 203. Plaintiff asserts her
struggles with mental health began after her children were born. She reports being depressed after
the birth of each of the first three children, and believes the birth of her fourth child triggered her first
manic episode with psychotic features. Tr. 296. Both plaintiff and her husband attribute her losing
her job as a corrections officer to her mental health problems. Tr. 7, 77. Plaintiff began attempting
to treat her depression and mania with medication in about 1994, and she was diagnosed with bipolar
disorder after her first inpatient hospitalization, in 1996 or 1997. Tr. 65.
In the early 2000s, plaintiff had a series of hospitalizations and run-ins with law enforcement.
July 10, 2000, she was extremely combative when she was taken to the hospital after a car accident.
Tr. 314. She screamed obscenities, spit in the face of hospital staff, refused most treatment, and left
against medical orders; shortly thereafter, Coos County Sheriff's Deputies arrested her in the hospital
lobby. Tr. 304. A week later, on July 17, 2000, plaintiff was admitted to the same hospital after
Page 2 - OPINION AND ORDER
ambulance personnel found her "combative and out of control" at her home. 1 Tr. 302. Medical
records from her admission list her chief complaint as "[s]creaming and out of control." Tr. 304.
Dr. Charles Reagan evaluated plaintiff and concluded the incident stemmed from her bipolar disorder
and alcohol abuse. Tr. 302-03. Dr. Reagan wanted plaintiff to stay in the hospital longer to track
her response to a new medication, but plaintiff "demanded" to leave on July 19, 2000. Tr. 302.
Three days later, on July 22, 2000, Coos County Sheriffs Deputies brought plaintiff back to the
hospital. Tr. 294. Plaintiff told the admitting physician she "just could not take her medicines" and
she "didn't feel safe at all." Tr. 294. Plaintiff described a 48-hour period of "racing thoughts" and
"impulsive behavior" following a period of"decreased energy" and "worthlessness." Tr. 292. She
was admitted "for what appeared to be a manic episode" and stayed in the hospital for nine days.
Tr. 292.
In 2001, plaintiff underwent a hysterectomy to address "severe dysmenorrhea," 2 which her
doctors suspected was exacerbating her manic symptoms. Tr. 278. June 12, 2003, plaintiff was
admitted to the hospital during another manic episode. Tr. 267-69. She reported she had been off
her medications for two to three weeks after she temporarily separated from her husband and left her
medications at their shared home. Tr. 267. After plaintiff had a "confrontation" with a "very
threatening" male patient, she requested discharge because "she felt uneasy with [that] patient on the
unit." Tr. 265. The discharging doctor's notes state plaintiffs improvement was "very rapid" but
characterize it as "unfortunate" that she left after only two days. Tr. 265.
In January 2006, plaintiff attempted "suicide by cop" when she brandished a toy pistol at
police officers. Tr. 66, 386. She was shot in the thigh. Tr. 383. She spent twelve days in the
hospital undergoing psychiatric treatment and wound care. See Tr. 321-57. Her admission was
1
It is unclear why an ambulance was called to plaintiffs house; the note from the
admitting physician states plaintiff "could provide no useful history since she was very
combative and out of control." Tr. 304.
2
"Dysmennorhea is the medical term for pain with menstruation." Cleveland Clinic,
Diseases & Conditions: Dysmenorrhea,
myclevelandclinic.org/health/diseases_ conditions/hic_Dysmenorrhea (last visited Jun. 30, 2016).
Page 3 - OPINION AND ORDER
voluntary, but the admitting physician noted if she had attempted to leave, he would have placed her
on a hold. Tr. 334. She also was incarcerated for ninety days. Tr. 8, 73. Plaintiff characterized this
period in the early and mid-2000s as the "worst dark, dark years." Tr. 65. Her husband, Roy Wright
("Roy"), submitted a letter to the Appeals Council describing "a long, long period where there would
be spray painting on the walls, sorting through every piece of paper in the house, drinking and yes,
drugs, as she slowly went completely off the rails." Tr. 7.
Since 2006, the record contains no evidence of hospitalization or problems with law
enforcement. Plaintiff has been treated by Dr. Reagan on a somewhat regular basis since 1999 .3 See
Tr. 406-23 (documenting seventeen visits between June 2003 and June 2008); 395-404
(documenting twelve visits between April 2009 and April 2012), 435-48 (documenting ten visits
between May 2012 and July 2013). At times, plaintiff saw Dr. Reagan as frequently as once every
few weeks, but there are also stretches of up to a year without any recorded visits. The longest of
these stretches aligns with a year plaintiff spent in Thailand, volunteering as an English teacher. Tr.
69, 74-75, 398-99. At the hearing, plaintiff testified that she had a good experience in Thailand
because she lived with a group of volunteers, "almost [all of whom were] also suffering from some
sort of depression or something." Tr. 68. When she was "having an episode," others would cover
for her. Tr. 74-75. She estimated she missed two to three days of work every couple of weeks due
to bipolar disorder. Tr. 75. She also stated that because she was a volunteer, she could "kind of get
away with" not being "a hundred percent." Tr. 75.
Plaintiff's medical records consistently document problems with her marriage. See, e.g., Tr.
302 (during first July 2000 hospitalization, plaintiff reporting her husband "has begun to harass her
and suggest divorce"); Tr. 296 (during second July 2000 hospitalization, documenting plaintiff's
3
The ALJ found plaintiff's treatment relationship with Dr. Reagan began in 2003, which
is consistent with plaintiff's testimony. Compare Tr. 20 with Tr. 70. However, the medical
records from plaintiff's hospitalizations show that outpatient treatment was already ongoing by
2000. See Tr. 302 (medical record dated July 19, 2000, noting that plaintiff was followed by Dr.
Reagan on an outpatient basis for bipolar disorder). Roy stated Dr. Reagan first began treating
plaintiff in 1999, following two hospitalizations in the "mental ward of Coos Bay Hospital." Tr.
8.
Page 4 - OPINION AND ORDER
allegations of serious emotional abuse of serious emotional abuse); Tr. 265 (during 2003
hospitalization, noting "problems in a partner relationship, with her marriage of six years"); Tr. 333
(during 2006 hospitalization, noting a "[l]ong history of domestic discord and possibly violence but
no well documented violence"); Tr. 401 (in 2009, plaintiff stating she is doing "pretty good" and that
"Roy is the only problem in her life now"). Plaintiff testified she considers herself more than fifty
percent responsible for her marital problems, because "it is probably impossible to live with someone
who has bipolar or some kind of a mental problem like this because this person - like I'm all over
the place." Tr. 79.
The record reflects a number of changes in type and dosage of medication over the years.
See, e.g., Tr. 8, 298, 302, 396. Plaintiff testified that for years,
[T]hey were trying to find the right combination of medications. I pretty much tried
them all, and so those were all years of medications that failed or didn't do what they
thought and hoped that they would do, and then trying something else and having that
have the side effects.
Tr. 66. She also stated she fell into the "very common pattern" of going on and off her medications.
Tr. 66. After the 2006 shooting, plaintiff and Dr. Reagan "pretty much found the meds that will
work." Tr. 70. Plaintiff testified that because of the shooting, she "learned a lot" about the
consequences of failing to take her medication. At the hearing, plaintiffreported being on Topamax,
Lamictal, and Seroquel. Tr. 72. She also takes NephrAmine (essential amino acids), medication for
recently diagnosed type two diabetes, and thyroid medication. Tr. 72.
In September 2013, Dr. Reagan completed a questionnaire prepared by plaintiffs lawyer.
The questionnaire specifically asks about plaintiffs functional limitations on or before June 30,
2004, which is plaintiffs date last insured. Tr. 449. In the questionnaire, Dr. Reagan opined
plaintiff would miss more than two days of work per month due to her conditions; would be unable
to consistently work an eight hour day five days per week; and would have significant problems with
concentration and irritability. Tr. 449-50; see also Tr. 57.
In a June 2012 disability report, plaintiff stated her "illness ... has severely affected [her]
quality oflife and [her] independence." Tr. 230. She alleged when she is having a manic episode,
Page 5 - OPINION AND ORDER
she has to take medication to slow her mind down, resulting in at least three to seven days and up
to two weeks of bed rest. Tr. 230. When she is depressed, she is unable to function, is sometimes
suicidal, and is a danger to herself and others; at these times, she is unable to cook, clean, or even
maintain proper personal hygiene. Tr. 230. In his letter to the Appeals Council dated April 3, 2014,
Roy stated plaintiff "doesn't bathe often, has conflict with family members and others, ... and often
withdraws to be by herself." Tr. 9.
Plaintiff alleges disability beginning December 31, 2001. Her application was denied
initially and upon reconsideration. Tr. 98, 106. In November 2013, plaintiff was represented by
counsel at a hearing before an administrative law judge ("ALJ"). Tr. 52. After the ALJ issued an
unfavorable decision, Tr. 23, the Appeals Council denied review, Tr. 1, rendering the ALJ' s decision
the final decision of the Commissioner. Plaintiff then filed this appeal.
THE ALJ'S FINDINGS
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" between the
alleged disability onset date (December 31, 2001) and the date last insured (June 30, 2004). Tr. 17;
Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found plaintiff
suffers from a single medically severe impairment: bipolar disorder. Tr. 17; Yuckert, 482 U.S. at
140-41; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step three, the ALJ determined plaintiffs
impairment did not meet or equal "one of a number oflisted impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity." Tr. 17-18; Yuckert, 482 U.S.
at 141; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
The ALJ determined plaintiff had the Residual Functional Capacity ("RFC") to perform the
full range of work at all exertional levels, subject to a set of nonexertional limitations: no more than
occasional superficial interaction with the public; only superficial interaction with coworkers; only
unskilled work due to concentration problems; and work that is low-stress, is not fast- or productionPage 6 - OPINION AND ORDER
paced, and does not involve persuasive communication. Tr. 19; 20 C.F.R. § 404.1520(e). At step
four, the ALJ concluded plaintiff could not perform her past work as a corrections officer, care
provider, hair stylist, or fast food cashier, because those jobs all required social interactions beyond
the limits set in the RFC. Tr. 21; Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At
step five, the ALJ relied on the testimony of a vocational expert ("VE") to find plaintiff could work
as a cleaner of manufactured homes, bundle clerk, or stock helper. Tr. 22; Yuckert, 482 U.S. at 142;
20 C.F.R. §§ 404.1520(a)(4)(v), (g). Accordingly, the ALJ found plaintiff not disabled and denied
her application for benefits. Tr. 23; 20 C.F.R. § 404.1566(c).
STANDARD OF REVIEW
A district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammockv. Bowen,
879 F.2d 498, 501 (9th Cir. 1989). The Commissioner concedes the ALJ's decision in this case is
not supported by substantial evidence. Def.'s Br. 1-2 (doc. 21). The only issue is whether the
decision should be remanded for further proceedings or for an immediate award of benefits.
District courts have discretion to decide whether to remand for further proceedings or for an
award of benefits. 42 U.S.C. § 405(g); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001).
The issue turns on the utility of further proceedings. Treichler v. Comm 'r ofSoc. Sec. Admin., 775
F.3d 1090, 1099-1100 (9th Cir. 2014). Remand for an award of benefits is appropriate when "no
useful purpose would be served by further administrative proceedings and the record has been
thoroughly developed. Id (quoting Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012).
In the Ninth Circuit, courts determine which sort of remand is warranted by applying the
"credit-as-true doctrine." Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014); see also Strauss
v. Comm 'r ofthe Soc. Sec. Admin., 635F.3d1135, 1138 (9th Cir. 2011) (holding district courts may
not award benefits punitively and must conduct a credit-as-true analysis whenever the
Commissioner's decision will be reversed). The "credit-as-true" doctrine is "settled" and binding
on this Court. Garrison, 759 F.3d at 999. The Ninth Circuit articulates the rule as follows:
Page 7 - OPINION AND ORDER
The district court must first determine that the ALJ made a legal error, such as failing
to provide legally sufficient reasons for rejecting evidence. Ifthe court finds such an
error, it must next review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential factual issues have
been resolved. In conducting this review, the district court must consider whether
there are inconsistencies between the claimant's testimony and the medical evidence
in the record, or whether the government has pointed to evidence in the record that
the ALJ overlooked and explained how that evidence casts into serious doubt the
claimant's claim to be disabled. Unless the district court concludes that further
administrative proceedings would serve no useful purpose, it may not remand with
a direction to provide benefits.
If the district court does determine that the record has been fully developed
and there are no outstanding issues left to be resolved, the district court must next
consider whether the ALJ would be required to find the claimant disabled on remand
if the improperly discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ improperly
rejected, in the context of the otherwise undisputed record, and determine whether
the ALJ would necessarily have to conclude that the claimant were disabled if that
testimony or opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district court is generally
not required to exercise such discretion, however. District courts retain flexibility in
determining the appropriate remedy and a reviewing court is not required to credit
claimants' allegations regarding the extent of their impairments as true merely
because the ALJ made a legal error in discrediting their testimony.
Dominguez v. Colvin, 808 F Jd 403, 407-08 (9th Cir. 2015) (internal citations and quotation marks
omitted).
DISCUSSION
Because the Commissioner concedes legal error, the first step here is to review the record as
a whole to determine whether it is fully developed such that there is no "serious doubt" that plaintiff
is disabled. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). If the record has been fully
developed, I must proceed to determine whether a finding of disability would be required on remand.
Dominguez, 808 F.3d at 407. I conclude plaintiff is entitled to an immediate award of benefits for
the period between December 31, 2001 and January 28, 2006, but further proceedings are necessary
to determine whether and for how long plaintiff remained disabled after January 2006.
1
Period Before January 28, 2006
The evidence in the record relevant to determining disability between December 31, 2001,
and January 28, 2006, includes plaintiffs testimony; Roy's letter to the Appeals Council; medical
Page 8 - OPINION AND ORDER
records, both from Dr. Reagan and from other physicians, related to plaintiffs four hospitalizations
between 2000 and 2006; Dr. Reagan's outpatient treatment records from 2003 to 2006; 4 and the
questionnaire completed by Dr. Reagan. Roy's statement summarizes this evidence well, noting that
plaintiffs bipolar disorder "led to the loss of her job, her position in the church, led her to be shot,
sent her to jail on multiple occasions, forced her to leave the community and tagged her with a
criminal record."
Tr. 9.
Dr. Reagan and other physicians assessed Global Assessment of
Functioning ("GAF") Scale scores of between 38 and 60 during this time period, with the majority
of assessments at 50 or below, reflecting significant impairment in psychological, social, and
occupational functioning. 5
Crisis points Gob loss, family strife, hospitalization, arrest, etc.) in the record punctuate
stretches of relative calm. This tracks the familiar pattern of bipolar disorder, which this Court
recently acknowledged is "inherently cyclical":
Cycles ofimprovement and debilitating symptoms are a common occurrence, and in
such circumstances it is error for an ALJ to pick out a few isolated instances of
improvement over a period of months or years and to treat them as a basis for
concluding a claimant is capable of working. The regulations themselves provide
[that] proper evaluation of ... impairments must take into account any variations in
the level of your functioning in arriving at a determination of severity over time ....
When a person who suffers from severe panic attacks, anxiety, and depression
improves, that does not mean that the person's impairments no longer seriously affect
her ability to function in a workplace. Occasional symptom-free periods - and even
the sporadic ability to work - are not inconsistent with disability.
Sunwall v. Colvin, -
F. Supp. 3d-, 2016 WL 259703, *3 (D. Or. Jan. 21, 2016) (citations and
quotation marks omitted, punctuation and alterations normalized). The ALJ noted the connection
between the crises and other issues -
4
plaintiffs alcohol and drug abuse, martial problems, and
The record contains no outpatient treatment records from before 2003.
5
A GAF score between 31 and 40 reflects "some impairment in reality testing or
communication" or "major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood." American Psychiatric Association Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition Text Revision 34 (2000) ("DSM-IV"). A GAF
score between 41 and 50 reflects "serious symptoms" such as "suicidal ideation" or "any serious
impairment in social, occupational, or school functioning." Id. A GAF score between 51 and 60
reflects "moderate symptoms" or "moderate difficulty in social, occupational, or school
functioning." Id.
Page 9 - OPINION AND ORDER
"going off' her medications. Far from suggesting the symptoms caused by plaintiffs bipolar
disorder were not that serious, these issues all appear to have been either caused or greatly
exacerbated by plaintiffs underlying mental health issue. Viewing the record as a whole, it is clear
the driving force behind plaintiffs problems is bipolar disorder.
Having found that the record is fully developed as to the period up to January 28, 2006, I now
must determine whether the ALJ would be required to find plaintiff disabled on remand if the
improperly discredited evidence were credited as true. I conclude the answer to this question is yes.
Dr. Reagan opined plaintiff would miss more than two days per month due to her condition,
could not work a full-time schedule consistently, and would struggle to concentrate or complete
simple tasks. Tr. 450. This opinion is expressly limited to the period before plaintiffs date last
insured. Tr. 449. I find Dr. Reagan's opinion about plaintiffs limitations consistent with his
contemporaneous treatment notes and give it great deference based on his long relationship with
plaintiff. At the hearing, the VE confirmed that missing two or more days per week or being off-task
more than ten percent of the time would preclude competitive employment. Tr. 88. Crediting Dr.
Reagan's opinion as true, therefore, the ALJ would be compelled to find plaintiff disabled through
June 30, 2004.
Moreover, I infer from the record as a whole that plaintiffs disability continued until at least
January 28, 2006, when she was discharged from the hospital following her suicide attempt.
Although there are limited medical records between plaintiffs date last insured and the shooting,
medical records from plaintiffs hospitalization in 2006 show her symptoms from bipolar disorder
continued to be disabling. The admitting physician documented substantial symptoms of mania and
depression, "dirt caked under her nails," strange dress, skin covered in flea bites, and continuing
marital strife. Tr. 334-3 5. On remand, plaintiff is entitled to an immediate award of benefits for the
period between December 31, 2001 and January 28, 2006.
11
Period After January 28, 2006
Further proceedings are warranted, however, with respect to the period after the suicide
Page 10 - OPINION AND ORDER
attempt and subsequent hospitalization. The regulations contemplate awards of benefits for a closed
period of disability. See 20 C.F.R. § 404.1520(c) ("[I]t is possible for you to have a period of
disability for a time in the past even though you do not now have a severe impairment."); id. §
404.1594 (describing "[h]owwe will determine whether your disability continues or ends" including
whether there has been medical improvement relevant to ability to work). Here, further proceedings
are necessary because gaps and conflicts in the record leave serious doubt as to whether and how
long plaintiff remained disabled after January 28, 2006.
First, Dr. Reagan's opinion regarding plaintiffs limitations is expressly limited to the period
before June 30, 2004. Tr. 449. Accordingly, it is not an assessment of plaintiffs limitations after
that date. Second, plaintiff made at least two statement suggesting the suicide attempt was a turning
point in the success of her treatment. See Tr. 70 (stating that after 2006 shooting, Dr. Reagan "pretty
much found the meds that will work" to manage the bipolar disorder); Tr. 65 (characterizing the time
leading up to her suicide attempt as the "worst dark, dark years"). Third, Dr. Reagan's treatment
records document improvement beginning in 2006. As noted above, between 2001 and 2004,
treatment records generally assessed a GAF of 50 or below, and never provided a GAF higher than
60. By contrast, treatment records between 2006 and 2013 only twice included a GAF below 60,
and frequently listed a GAF of 70. 6 The post-2006 records also frequently state plaintiff is doing
"well" with "mild" problems; though there are documented episodes of "fast thoughts" and
depression, there is no reference to severe problems rising to the level of the incidents documented
in 2000, 2003, and 2006. See Tr. 396, 399, 401, 402. Finally, plaintiffs two long-term trips to
Thailand to work as a volunteer provide further evidence ofimprovement. On remand, the ALJ must
reconcile these records with plaintiffs statements, Roy's letter, and other evidence regarding the
continuing limiting effect of her bipolar disorder.
6
A GAF of between 61 and 70 reflects "some mild symptoms ... but generally
functioning pretty well." DSM-IV at 34.
Page 11 - OPINION AND ORDER
CONCLUSION
The Commissioner's decision is REVERSED and REMANDED for further proceedings and
a partial award of benefits. On remand, the ALJ must (1) find plaintiff disabled for at least the
period of December 31, 2001 to January 28, 2006, and award benefits for that period; and (2) assess
whether and for how long plaintiffs disability persisted after January 28, 2006.
IT IS SO ORDERED.
Dated this
biikJ.
of July 2016.
Ann Aiken
United States District Judge
Page 12 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?