Strickland v. Commissioner Social Security Administration
Opinion and Order. The Commissioner's decision is reversed and remanded for additional proceedings. Signed on 2/2/17 by Judge Marco A. Hernandez. (cib)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LISTINA LYNN STRICKLAND,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
SCHNEIDER KERR LAW OFFICES
P.O. Box 14490
Portland, Oregon 97293
Attorney for Plaintiff
Billy J. Williams
UNITED STATES ATTORNEY
District of Oregon
Janice E. Hebert
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97203-2902
1 - OPINION & ORDER
OPINION & ORDER
Martha A. Boden
SPECIAL ASSISTANT UNITED STATES ATTORNEY
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Listina Strickland brings this action seeking judicial review of the
Commissioner's final decision to deny supplemental security income (SSI). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse
the Commissioner's decision and remand for additional proceedings.
Plaintiff applied for SSI on April 24, 2012, alleging an onset date of December 31, 2004.
Tr. 201-06. Her application was denied initially and on reconsideration. Tr. 125-28 (initial); 1337 (reconsideration). On February 24, 2014, Plaintiff appeared, with counsel, for a hearing
before an Administrative Law Judge (ALJ). Tr. 42-68. On March 20, 2014, the ALJ found
Plaintiff not disabled. Tr. 9-34. The Appeals Council denied review. Tr. 1-6.
Plaintiff alleges disability based on having anxiety, post-traumatic stress disorder
(PTSD), tremors, depression, stress, and psychosis. Tr. 308. At the time of the hearing, she was
forty-five years old. Tr. 46. She completed eighth grade and has past relevant work experience
as a meat counter sales clerk. Tr. 26, 47, 63.
2 - OPINION & ORDER
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§
Disability claims are evaluated according to a five-step procedure. See Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
In the first step, the Commissioner determines whether a claimant is engaged in
"substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the
claimant is not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in
combination, meet or equal "one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at
141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20
3 - OPINION & ORDER
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since her application date. Tr. 14. Next, at step two, the ALJ determined that Plaintiff
has severe impairments of major depressive disorder, partial remission; PTSD; and
methamphetamine abuse, remission. Id. However, at step three, the ALJ found that her
impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 1516.
At step four, the ALJ concluded that Plaintiff has the RFC to perform a full range of work
at all exertional levels, but with the following nonexertional limitations:
She can sustain attention and concentration for short, simple instructions and
work-like procedures. She would work best in a routine, predictable work
environment without a requirement of executive decision-making. She should
have no more than occasional contact with the public. She can engage in brief,
normal interaction with coworkers and supervisors. She should avoid
concentrated exposure to environmental irritants, i.e. dust, gases, and fumes in
work place. She would work best at occupations that are highly structured,
repetitive, and sequential.
With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past
4 - OPINION & ORDER
relevant work. Tr. 26. However, at step five, the ALJ determined that Plaintiff is able to perform
jobs that exist in significant numbers in the economy such as room cleaner, laundry worker, and
agricultural produce sorter. Tr. 27. Thus, the ALJ determined that Plaintiff is not disabled. Id.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the
Commissioner's findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial
evidence means 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." Id. (internal
quotation marks omitted). The court considers the record as a whole, including both the
evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than
one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the
court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).
Plaintiff argues that the ALJ erred in the following ways: (1) rejecting Plaintiff's
subjective testimony as not entirely credible; (2) failing to find certain impairments severe at step
two; (3) improperly rejecting medical practitioners' opinions; (4) improperly rejecting lay opinion
testimony; and (5) as a result of these alleged errors, improperly concluding at step five that she
is not disabled.
5 - OPINION & ORDER
I. Credibility Determination
The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a
claimant shows an underlying impairment and a causal relationship between the impairment and
some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony
if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir.
2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes
objective medical evidence establishing that the claimant suffers from an impairment that could
reasonably produce the symptoms of which he complains, an adverse credibility finding must be
based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines
whether there is "objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged"; and second, if the
claimant has presented such evidence, and there is no evidence of malingering, then the ALJ
must give "specific, clear and convincing reasons in order to reject the claimant's testimony about
the severity of the symptoms.") (internal quotation marks omitted).
When determining the credibility of a plaintiff's complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff's daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from prescribed
medications, and the unexplained absence of treatment for excessive pain. Id.; see also
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many
6 - OPINION & ORDER
factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility
evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning
the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained
or inadequately explained failure to seek treatment or to follow a prescribed course of treatment;
and (3) the claimant's daily activities.") (internal quotation marks omitted).
As the Ninth Circuit explained in Molina;
In evaluating the claimant's testimony, the ALJ may use ordinary techniques of
credibility evaluation. For instance, the ALJ may consider inconsistencies either
in the claimant's testimony or between the testimony and the claimant's conduct,
unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a claimant need not
vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit
a claimant's testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a work setting[.] Even
where those activities suggest some difficulty functioning, they may be grounds
for discrediting the claimant's testimony to the extent that they contradict claims
of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).
Plaintiff does not dispute that the ALJ engaged in the required two-step inquiry. But, she
argues that the reasons provided by the ALJ are not supported by the record or are insufficient.
The ALJ relied on the following reasons to find that Plaintiff's subjective limitations
testimony was not fully credible:
(1) the testimony is not supported by the objective medical record;
(2) her alleged limitations are inconsistent with her activities of daily living;
(3) she received only conservative and routine treatment for her impairments;
(4) she has not fully complied with medical treatment;
7 - OPINION & ORDER
(5) she left previous employment for reasons unrelated to her impairments;
(6) she is not motivated to work consistently;
(7) her criminal history creates "significant issues regarding the sincerity and truthfulness
of her application and testimony" and "[h]er repeated willingness to steal brings into question the
sincerity of her application";
(8) her history of polysubstance abuse "raises the question of whether she is motivated to
improve her functional ability"; her current tobacco use and past illegal drug use "weakens her
credibility because it shows a pattern of voluntary injurious behavior"; and her heavy and
voluntary use of mind-altering illegal drugs shows "willful neglect of her physical and mental
(9) the credibility of her testimony is eroded by her inconsistent statements;
(10) she has actively sought employment despite her acknowledged awareness of mental
health symptoms which suggests she is aware of her limitations and believes she can work
despite them; and
(11) she has worked after her alleged onset date, suggesting a higher level of functioning
than alleged in her application and testimony. Tr. 18-23.
Plaintiff first argues that "substantial evidence of psychological counseling" undermines
the ALJ's findings that Plaintiff has received only conservative and routine treatment. Pl.'s Op.
Brief 15. Plaintiff provides no citations to the record to support her contention. The record
shows that although she alleges disability commencing in December 2004, she did not seek
mental health counseling until late 2011. Tr. 476, 562. On October 24, 2011, she received an
intake evaluation from Western Psychological & Counseling Services recommending weekly
8 - OPINION & ORDER
counseling sessions. Tr. 504. Those sessions do not appear to have started until December 12,
2011. Tr. 504-30; Tr. 520. After that first session, she went fairly regularly, sometimes once per
week and sometimes once every two or three weeks. Tr. 504-30. In April 2012, she was
evaluated for medication and was prescribed Lexapro. Tr. 523-26. She continued with her
counseling sessions, more or less on the same schedule, to June 2013. Tr. 504-30, 531-35, 54957, 569-627 (showing, however, no appointments from December 17, 2012 to March 4, 2013).
At her November 28, 2012 counseling session, she was noted to have been making progress in
looking for work and continuing to seek out support from her family and friends. Tr. 549. The
clinician's assessment was that Plaintiff appeared to be doing better. Id. In June 2013, her
counseling was terminated because she was no longer actively engaged with her therapist and
had a poor commitment to therapy. Tr. 596, 597. Her June 20, 2013 Case Closure Summary
states that treatment was effective because Plaintiff was better able to reduce her depressive
symptoms and learned to better manage her PTSD symptoms. Tr. 569. She was assessed a
Global Assessment of Functioning (GAF) score of 52. Id.; see also Tr. 596 (June 4, 2013 Case
Closure Summary by Western Psychological Psychiatric Mental Health Nurse Practitioner Kerry
Phifer noting GAF score of 57).
In late January 2014, Plaintiff returned to Western Psychological for another evaluation.
Tr. 620-26. The recommended treatment plan was for individual counseling one to four times
per month. Tr. 618. The record shows she attended one counseling session on February 4, 2014.
Tr. 627. On February 10, 2014, Plaintiff canceled her session for the next day. Tr. 626. There
are no other counseling records from Western Psychological or from other mental health
treatment providers for treatment after February 2014.
9 - OPINION & ORDER
Contrary to Plaintiff's argument, the record supports the ALJ's determination that she
received conservative and routine treatment for her mental health symptoms. As noted, despite
an alleged onset date back to December 2004, she did not receive psychological counseling until
December 2011. She attended sessions and took Lexapro, an anti-depressant medication. She
stopped attending after one and one-half years. Her closing summary shows that treatment was
effective and she was satisfied. As the ALJ noted, she has not been hospitalized. Her treatment
was routine. As a result, the ALJ did not err in determining that her treatment was inconsistent
with Plaintiff's testimony regarding the severity of her symptoms.
Plaintiff also argues that the ALJ erred in concluding that Plaintiff's daily activities are
inconsistent with her subjective allegations. The ALJ found that Plaintiff's daily activities were
"quite involved." Tr. 21. He cited to evidence in the record that she spends time "cleaning and
organizing," walking her dog, watching television, planning dinner, finding new recipes, planting
flowers, reading, gardening, beading, shopping for groceries with friends, going out to the
library, restaurants, and religious services, and performing household chores such as sweeping,
mopping, vacuuming, and putting dishes away. Tr. 21. She manages finances. Id. She also
takes care of her hygiene and grooming and showers daily. Id.
Plaintiff does not contend that the ALJ's recitation of her activities is wrong. Rather, she
argues that her activities are only modest and that they are not inconsistent with her claimed
limitations. The ALJ noted that Plaintiff claimed she could not work because of her anxiety,
PTSD, tremors, depression, stress, and psychosis. Tr. 17. Plaintiff explained that she could not
work because she cannot focus or remember details, she shakes constantly, she has worsening
social anxiety, stays at home, and relies on her boyfriend or daughter to make her food. As
10 - OPINION & ORDER
Molina explains, even if a claimant's activities show some difficulty functioning, they may still
discredit a claimant's testimony when they contradict claims of complete debilitation. 647 F.3d
at 1113. Such is the case here. For example, Plaintiff's activity of going out to various places
undermines her assertion that she is crippled by social anxiety. Her reading activity and
managing of finances undermines her assertion that she cannot focus. The ALJ's determination is
supported by substantial evidence in the record.
Plaintiff also attacks the ALJ's finding that Plaintiff's testimony was not credible because
the record showed she was not motivated to work consistently. The ALJ noted that Plaintiff had
a sporadic work history with limited earnings before the alleged onset of disability. Tr. 22. This
evidence suggested that factors other than her alleged impairments affect her ability to maintain
full-time employment. Id. Plaintiff argues that there are alternative reasons for her poor history
that do not implicate her motivation to work, including caring for her daughter. That claimant
posits an alternative interpretation of the record does not mean that the ALJ erred. The court
upholds the ALJ's rational interpretation of the record even when the evidence may be interpreted
differently. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is
susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be
upheld."). Here, the ALJ offered a rational interpretation of the record and thus did not err in
finding that Plaintiff's poor work history undermines her claim of disabling symptoms.
Plaintiff next contends that in regard to the ALJ's finding that Plaintiff's credibility was
undermined by her having ended previous employment for reasons unrelated to her impairments,
"mental health symptoms were likely large contributors." Pl.'s Op. Brief 15. Positing that
underlying mental health symptoms were "likely" contributors is not an argument based on the
11 - OPINION & ORDER
record. Moreover, it is inconsistent with the fact that the events noted by the ALJ occurred
before Plaintiff sought mental health counseling. With her mental health symptoms not forcing
her to seek treatment, the ALJ's interpretation that she left her previous jobs for reasons unrelated
to her impairments is based on substantial evidence in the record.
Plaintiff also argues that her work and job search, cited by the ALJ as a basis for finding
her not credible, should not be used against her because she asserts only that she cannot work on
a regular continuing basis, not that she is incapable of all work activity. The ALJ cited to several
places in the record where it was reported that Plaintiff was looking for work. Tr. 23 (citing 549,
555, 559, 606). There is no evidence in the record that any of the positions she was applying for,
including jobs as a dishwasher, fast food worker, waitress, or store employee, were not work on a
regular continuing basis. Thus, the ALJ did not err in interpreting the record as indicating that
despite alleged disabling symptoms, Plaintiff was looking for work that was inconsistent with her
Plaintiff makes no separate argument regarding the ALJ's finding that her subjective
limitations testimony is not supported by the objective medical record. In support of this finding,
the ALJ noted that her psychiatric symptoms had improved with counseling and medication, her
major depressive disorder is in partial remission, and her methamphetamine abuse is in
remission. Tr. 21. The ALJ also noted that there was no evidence in the record for the alleged
occasional visual hallucinations Plaintiff testified about at her hearing. Id.
Plaintiff does not dispute the ALJ's recitation of this evidence. The ALJ may consider
objective medical evidence in determining a claimant's credibility regarding subjective symptom
testimony, as long as the ALJ does not reject such testimony solely because it is unsubstantiated
12 - OPINION & ORDER
by the objective medical evidence. 20 C.F.R. §§ 404.1529(c), 416.929(c); Rollins v. Massanari,
261 F.3d 853, 856, 857 (9th Cir. 2001) (“Once a claimant produces objective medical evidence
of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based
solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain[;] .
. . While subjective pain testimony cannot be rejected on the sole ground that it is not fully
corroborated by objective medical evidence, the medical evidence is still a relevant factor in
determining the severity of the claimant's pain and its disabling effects.”) (internal quotation
marks and brackets omitted).
As discussed above, many of the reasons provided by the ALJ in support of his credibility
finding are supported by substantial evidence in the record. This allows the ALJ to also look to
inconsistencies with the objective medical evidence which, as the ALJ here described, do not
support Plaintiff's subjective testimony. Therefore, the ALJ did not err in concluding that
Plaintiff's subjective limitations testimony was not entirely credible.
II. Medical Professionals' Opinions
Plaintiff argues that the ALJ improperly rejected the opinions of treating psychologist Dr.
Matthew De Haan, Psy.D, examining psychologist Dr. Robinann Cogburn, Ph.D, nonexamining
physician Dr. Linda Jensen, M.D., and examining psychologist Dr. John D. Adler, Ph.D.
Social security law recognizes three types of physicians: (1) treating, (2) examining, and
(3) nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, more
weight is given to the opinion of a treating physician than to the opinion of those who do not
actually treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). And, more
weight is given to an examining physician than to a nonexamining physician. Garrison, 759 F.3d
13 - OPINION & ORDER
"'To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must
state clear and convincing reasons that are supported by substantial evidence.'" Ryan v. Comm'r,
528 F.3d 1194, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005)) (brackets in Ryan). "'If a treating or examining doctor's opinion is contradicted by another
doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are
supported by substantial evidence.'" Id. (quoting Bayliss, 427 F.3d at 1216).
A. Dr. De Haan
Dr. De Haan was Plaintiff's counselor at Western Psychological where she obtained
counseling from December 2011 to June 2013. He saw her more than two dozen times in
approximately eighteen months. Tr. 504-35, 549-57, 569-627. Plaintiff states that in January
2013, Dr. De Haan assessed her with a GAF score of 48. Tr. 573-74. She notes that according to
the Diagnostic and Statistical Manual of Mental Disorders, a GAF score between 41 - 50
describes "serious symptoms" or "any serious impairment in social, occupational, or school
functioning." Am. Psych. Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 4th ed.
Text Rev. (2000) (DSM–IV–TR) 34. She states that the ALJ made only a passing reference to
Dr. De Haan's reports, effectively disregarding his opinion. She argues that Dr. De Haan's
findings show she suffers from serious limitations and symptoms despite mental health
treatment. She contends that the rejection of this opinion was improper because the ALJ failed to
articulate specific and legitimate reasons for doing so.
The ALJ made more than one reference to Plaintiff's treatment at Western Psychological.
He first noted that in April 2012, during her treatment with Dr. De Haan, Nurse Practitioner
14 - OPINION & ORDER
Phifer completed a psychiatric evaluation in which Plaintiff was assessed as having a GAF score
of 50. Tr. 20 (citing Tr. 526). The ALJ also noted that Plaintiff reported improvement in
symptoms with Lexapro and that she exhibited appropriate appearance, cooperative behavior,
and affect congruent with mood. Id. (citing Tr. 527). The ALJ remarked that Plaintiff reported
benefit with mental health therapy. Id. (citing Tr. 531).
Later in the opinion, the ALJ noted that Plaintiff's case at Western Psychological was
closed in June 2013 with ending diagnoses of major depressive disorder, recurrent, moderate, and
PTSD. Tr. 21 (citing Tr. 569). Plaintiff had been able to reduce her depressive symptoms and
better manage her PTSD, her treatment goals had been met, and she was satisfied. Id. The ALJ
noted that her GAF score at the time, as assessed by Dr. De Haan, was 52. Id.
While the ALJ did not discuss Dr. De Haan by name, he did discuss her treatment at
Western Psychological and noted that at the conclusion of her treatment, her GAF was 52 and
she had achieved her goals. As Defendant states, other than pointing to the January 2013 GAF
score, Plaintiff cites to no other "opinion" of Dr. De Haan's which the ALJ allegedly rejected.
The GAF score is not dispositive of disability. Garrison, 759 F.3d at 1002 n.4 ("GAF scores,
standing alone, do not control determinations of whether a person's mental impairments rise to
the level of a disability" but "they may be a useful measurement" because they are "a rough
estimate of an individual's psychological, social, and occupational functioning used to reflect the
individual's need for treatment."). And, it is important to recognize that in the DSM-IV-TR, a
score of 48 means "serious symptoms" or "serious impairment in social, occupational, or school
functioning." DSM-IV-TR 34. Here, the January 2013 assessment cited by Plaintiff details
Plaintiff's symptoms and thus, the score of 48 appears to reflect the assessment of the severity of
15 - OPINION & ORDER
her symptoms, not her functional limitation.
Given that a GAF score is not determinative of disability or functioning, that the score in
this case was assessed in the context of describing Plaintiff's symptoms, and that the ALJ
discussed her treatment with Western Psychological and noted two other GAF scores, one of
which, rendered at the conclusion of her successful treatment, reflects moderate, not severe,
symptoms or moderate limitations in social functioning, the ALJ did not err in his consideration
of Dr. De Haan's treating relationship with Plaintiff.
B. Dr. Cogburn
Dr. Cogburn examined Plaintiff in March 2013 to assess her occupational capacity and
rehabilitation needs. Tr. 558-68. The evaluation consisted of a clinical interview, mental status
observations, review of records, and psychological testing. Id. In relevant part, Dr. Cogburn's
testing "revealed very significant deficits in executive functions." Tr. 566; see also Tr. 564
(discussing results of specific executive function testing). Dr. Cogburn noted that Plaintiff's
"[e]xecutive function deficits may affect functional abilities across multiple domains." Tr. 567.
Then, in her Recommendations section, Dr. Cogburn made the following remarks:
1. . . . [T]he severity of her executive function deficits raises significant
questions[s] as to whether she will be able to succeed in competitive employment.
Her executive function impairment is likely to affect her performance broadly.
She is likely to have difficulty organizing tasks independently, solving problems
as they arise, and adapting to changes in procedures or assignments. She is likely
to benefit from close supervision and assistance with organization and structure,
but even with these she may have difficulty consistently organizing her behavior
to complete tasks.
2. If competitive placement is attempted, [Plaintiff] is likely to succeed most
easily in occupations where tasks are highly structured, repetitive, and sequential
(i.e., one task is completed before another is begun). She is likely to perform most
successfully in a setting where there are few distractions or interruptions.
16 - OPINION & ORDER
3. A job-coach is likely to be helpful in training Ms. Strickland in a new position.
In his decision, the ALJ noted several of Dr. Cogburn's recommendations and gave her
opinion "great weight" as it was "generally supported by the evidence of record." Tr. 25.
Accordingly, the ALJ explained, the RFC limits Plaintiff to "short, simple instructions and worklike procedures." Id. The RFC also noted that Plaintiff would work best in a routine, predictable
work environment without a requirement of executive decision-making. Id. She was restricted
to occasional public contact and "brief, normal interaction with coworkers and supervisors." Id.
Finally, the RFC noted that she would "work best at occupations that are highly structured,
repetitive, and sequential." Id.
Plaintiff argues that although the ALJ gave Dr. Cogburn's opinion "great weight," the ALJ
failed to include key aspects of that opinion in his RFC. Plaintiff notes that the RFC fails to
mention close supervision and assistance with organization and structure and it omitted any
requirement of a job coach for training. Plaintiff also notes that one of Dr. Cogburn's diagnostic
impressions was "Cognitive disorder NOS, deficit in executive functions." Tr. 566. Yet, the
ALJ did not include this as a severe impairment at step two. Plaintiff argues that the ALJ's
failure to include all of Dr. Cogburn's limitations while according her opinion "great weight," is
an effective rejection of the portions of the opinion not included in the RFC. Because the ALJ
failed to give an explanation for the rejection, the ALJ erred.
In response, Defendant argues that the ALJ's limitations to simple, highly structured,
repetitive, and sequential work without executive decision-making incorporated Dr. Cogburn's
limitations of close supervision and assistance with organization and structure. According to
17 - OPINION & ORDER
Defendant, "[i]t is implicit that an individual working in a highly structured setting has received
close supervision and assistance with structure." Def.'s Brief 12. Additionally, Defendant
responds to the step-two argument by contending that because all of Dr. Cogburn's functional
limitations were incorporated into the RFC, any omission of a cognitive impairment at step two
Defendant's argument is unconvincing. Plaintiff correctly asserts that Defendant provides
no basis for its contention that "it is implicit that an individual working in a highly structured
setting has received close supervision and assistance with structure." Defendant gives no
examples and cites no authority for this proposition. While the RFC's inclusion of a limitation to
"highly structured" work arguably accounts for Dr. Cogburn's limitation to highly structured
tasks, nothing about that limitation implicitly addresses a limitation to close supervision and
assistance with organization and structure. The jobs identified by the VE, such as "room cleaner
for housekeeping," tr. 65, are to my knowledge often performed independently. In fact, the ALJ's
RFC limits Plaintiff to brief, normal interaction with supervisors. With that, Defendant's position
that the "highly structured" limitation implicitly includes a close supervision and assistance with
organization and structure limitation must be rejected.
Additionally, Defendant's argument does not even mention the job coach limitation.
Because the ALJ assigned Dr. Cogburn's opinion "great weight," the RFC's omission of this
limitation without explanation was error. Furthermore, the error of omitting Plaintiff's cognitive
impairment as a severe impairment at step two is not harmless. Defendant is correct that where
the ALJ fails to list a medically determinable impairment at step two, but nonetheless considers
the limitations posed by the impairment in the RFC, any error at step two is harmless. Lewis v.
18 - OPINION & ORDER
Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, however, for the reasons discussed, the full
range of limitations assessed by Dr. Cogburn were not part of the RFC. Thus, the error is not
C. Dr. Jensen
Dr. Linda Jensen, M.D., is a nonexamining physician who rendered an opinion in 2010 on
a previous disability application. Tr. 71-82. As part of that opinion, she concluded that Plaintiff
was limited to occasional fingering and handling due to tremor. Tr. 77-79. The ALJ rejected this
portion of Dr. Jensen's opinion because Plaintiff's activities of daily living do not suggest
limitations caused by tremor. Tr. 24. In support, the ALJ cited to Plaintiff's ability to clean and
organize, walk the dog, plant flowers, prepare meals, sweep, mop, vacuum, put dishes away,
garden, bead, dine out, use public transportation, and attend to hygiene and grooming. Id. The
ALJ found that Plaintiff was able to perform numerous activities despite the tremor. Id.
Plaintiff argues that the ALJ erred because many of the activities noted by the ALJ
require no more than occasional fingering and handling and thus, there is no inconsistency
between her activities and her tremor. Defendant points to several activities which were
reasonably interpreted by the ALJ as requiring more than occasional fingering and handling,
including planting flowers, organizing things, putting dishes away, working with beads, and
unimpeded personal grooming. I agree with Defendant that the ALJ's interpretation of the record
was rational and thus, I credit it over Plaintiff's alternative interpretation of the record.
D. Dr. Adler
Dr. Adler evaluated Plaintiff on August 21, 2009. Tr. 426-31. He conducted a personal
interview and reviewed records. Id. He diagnosed her with anxiety disorder NOS, learning
19 - OPINION & ORDER
disorder NOS, and alcohol abuse in remission. Tr. 428. He remarked that the evidence was
"most consistent with impairment tied to problems with coping and anxiety," and some problems
responding to stressors. Id. She also exhibited some "mental skills" problems with verbal skills
and calculation which he referred to as "cognitive skill problems." Id. Plaintiff argues that
although the ALJ discussed Dr. Adler's opinion, the ALJ failed to incorporate his diagnoses or
his assessed limitations and thus, the ALJ effectively rejected the opinion.
The ALJ discussed Dr. Adler's evaluation, including what Plaintiff reported to Dr. Adler,
the results of his mental status examination, and his conclusions. Tr. 18-19. Although the ALJ
did not again expressly refer to Dr. Adler's evaluation, it is clear from reading the ALJ's opinion
that when the ALJ later referred to "[t]hese objective medical findings," as supporting certain
functional limitations, he was referring to all of the medical evidence he had discussed in the
previous pages, including Dr. Adler's evaluation. Tr. 21. The ALJ explained that his RFC
accounts for the functional limitations caused by her psychiatric deficits. Id. He concluded that
the limitations to short, simple instructions and work-like procedures, a routine, predictable work
environment without a requirement of executive decision-making, no more than occasional
contact with the public, only brief, normal interaction with coworkers and supervisors, and an
occupation that was highly structured, repetitive, and sequential, accounted for the limitations he
found she experienced as a result of her mental health issues. Id.
Unlike Dr. Cogburn, Dr. Adler offered no opinion about any actual functional limitations
he believed were caused by Plaintiff's impairments. The closest he came was acknowledging that
it was "very possible" that she had "concentration problems" as well as unspecific "cognitive
skills problems and claims of learning problems when in school[.]" Tr. 428. The ALJ's
20 - OPINION & ORDER
discussion of the evidence makes clear that the ALJ incorporated whatever assessments Dr.
Adler gave into the RFC. I agree with Defendant that the limitations of short, simple, routine,
predictable, structured, repetitive, sequential work without executive decision-making, and with
limited contact with public as well as coworkers and supervisors, sufficiently addressed Dr.
Adler's assessment. The ALJ did not err.
III. Step-Two Finding
Plaintiff argues that the ALJ erred by failing to find various impairments severe at step
two. Specifically, she contends that she suffers from severe impairments of cognitive
disorder/learning disorder, borderline personality disorder, psoriasis, tremors, and anxiety
disorder. She argues that the ALJ's error was harmful because the limitations emanating from
these impairments, in combination with her other severe impairments, preclude her from
maintaining competitive employment.
The ALJ considers the severity of the claimant's impairment(s) at step two. 20 C.F.R. §
416.920(a)(4)(ii). If the claimant does not have a severe medically determinable physical or
mental impairment that meets the duration requirement, or a combination of impairments that is
severe and meets the duration requirement, the claimant is not disabled. Id.
A severe impairment is one that significantly limits the claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). "Basic work
activities" are the abilities and aptitudes necessary to do most jobs, including physical functions
such as walking, standing, sitting, and lifting, and mental functions such as understanding,
carrying out, and remembering simple instructions. 20 C.F.R. §§ 404.1521(b), 416.921(b). In
Social Security Ruling (SSR) 85-28 (available at 1985 WL 56856, at *3), the Commissioner has
21 - OPINION & ORDER
explained that "an impairment is not severe if it has no more than a minimal effect on an
individual's physical or mental ability(ies) to do basic work activities[;]" see also SSR 96-3p
(available at 1996 WL 374181, at *1) ("an impairment(s) that is 'not severe' must be a slight
abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on
the ability to do basic work activities.").
Defendant responds that Plaintiff's argument is conclusory and that even if the ALJ erred,
the error is harmless because the RFC adequately accommodated a cognitive disorder or
personality disorder. E.g., Lewis, 498 F.3d at 911 (where the ALJ considered evidence of
limitations posed by claimant's bursitis at step four of the disability analysis, any error in failing
to consider bursitis “severe” at step two was harmless).
For the reasons explained in the discussion of Dr. Cogburn's opinion, I agree with
Plaintiff that the ALJ erred by failing to find her cognitive disorder a severe impairment at step
two and further, that the error was not harmless. However, as to the learning disorder and
anxiety disorder, both of which were assessed by Dr. Adler, I reject Plaintiff's argument because
as previously discussed, Dr. Adler's assessments were fairly incorporated into the RFC. Thus,
any error is harmless. As to the borderline personality disorder, this was a provisional diagnosis
rendered in 2010 by Karen Bates-Smith, Ph.D. Tr. 474-78; Tr. 478-79 (explaining that the
borderline personality disorder diagnosis was provisional because of Plaintiff's credibility
problems). She assessed no particular functional limitations as a result and expressly noted she
did not believe there was a cognitive diagnosis and Plaintiff was able to understand and
remember instructions. Plaintiff offers no basis for concluding that the RFC did not account for
Dr. Bates-Smith's diagnosis and thus, any error by omitting the diagnosis as a severe impairment
22 - OPINION & ORDER
at step two was harmless.
As to Plaintiff's psoriasis, the ALJ noted the December 2009 diagnosis of the condition
and the recommendation of light therapy. Tr. 14. He found that the record showed that the
psoriasis, considered singly or together with other impairments, caused only transient and mild
symptoms and limitations, existed for less than twelve months, was well controlled with
treatment, or otherwise not adequately supported by the medical evidence in the record. Tr. 1415.
In contending that the ALJ erred at step two in regard to the psoriasis diagnosis, Plaintiff
cites to certain medical records in the Administrative Record. Pl.'s Op. Brief 11 (citing Tr. 45258, 632-35). These records, however, support the ALJ's conclusion rather than detract from it.
In December 2013, Dr. Kar-Yee Wu noted Plaintiff's psoriasis diagnosis and that she took Enbrel
for it, but there is no other mention of any problems associated with the disease. Tr. 632. There
is a notation of Plaintiff's concern of "bumps" under her arms for five months and a new one in
her groin but it is unclear if those are related to psoriasis. Id. In any event, no apparent treatment
was ordered other than the application of heat. Tr. 632-34. In February 2014, Plaintiff reported
that the bumps had improved. Tr. 635.
In the other cited records which are from late 2009 to early 2010, there is a diagnosis of
psoriasis, mention of plagues in the scalp, neck, face, and back, and a discussion of light therapy.
Tr. 452-58. Plaintiff then started treatment with Humira. Id. By February 2010, she reported a
70% improvement on that drug. Tr. 452.
The records cited by Plaintiff in support of her argument show only occasional reference
to the problem at doctor's appointments, show improvement with treatment, and fail to show any
23 - OPINION & ORDER
functional limitations as a result of the impairment. Therefore, the ALJ did not err in concluding
that Plaintiff's psoriasis was a non-severe impairment at step two.
Finally, the last step-two argument is addressed to Plaintiff's tremor. Plaintiff cites to
four places in the Administrative Record to support her arguments that the ALJ erred at step two
in failing to find her hand tremor a severe impairment and that the error was not harmless. The
first record cited is the 2010 opinion by Dr. Jensen. However, for the reasons explained above,
the ALJ did not err in rejecting her opinion that Plaintiff was limited to occasional fingering and
handling. Next, Plaintiff cites to a vague reference in 2013 vocational rehabilitation records to a
hand tremor for which there was no medical explanation. Tr. 385. This reference does not
establish any limitations from the tremor. Plaintiff then cites to a 2003 diagnosis from a
neurologist who opined she had "essential tremor" and who prescribed a beta blocker medication
for treatment. Tr. 406. There is no functional limitation opinion from the physician and no
subsequent record indicating whether Plaintiff took the medication and if she did, if it was
The last record Plaintiff points to is a 2013 chart note from her primary care physician Dr.
Wu who did not list a tremor in the list of diagnoses but who noted a "fine tremor" upon physical
examination. Tr. 632-33. As with several of these records, no functional limitations are
indicated. Plaintiff is correct that there are references in the record to a hand tremor. However,
other than the occasional fingering and handling limitation given by Dr. Jensen which the ALJ
did not improperly reject, the remaining records Plaintiff cites include one vague reference, a
reference from a treating physician to a fine tremor but no diagnosis listed, and a record which
shows a hand tremor but one for which treatment was recommended. Without other records
24 - OPINION & ORDER
supporting functional limitations, the ALJ did not err in concluding that Plaintiff's hand tremor
was not a severe impairment at step two.
IV. Lay Witness Testimony
Plaintiff argues that the ALJ erred by failing to fully credit the statements of two lay
witnesses. In a 2009 Third Party Function Report, Plaintiff's friend Suzan Cummins indicated
that Plaintiff had problems with everyday activities, needed reminders to take medication and
complete chores, was withdrawn from friends, and had conditions affecting her memory,
concentration, and understanding. Tr. 248-55. She noted Plaintiff's problems with walking,
completing tasks, using her hands, and getting along with others. Id. She had difficulty handling
stress and changes in routine. Id. Cummins also remarked on Plaintiff's challenges in cooking,
performance of household chores, inability to finish tasks, and in handling stress. Id.
The ALJ gave Cummins's report only limited weight because it conflicted with the
evidence of record. Tr. 25. For example, while Cummins stated that Plaintiff could commute
only by walking and riding with others, the records showed that Plaintiff used public
transportation. Id. In contrast to Cummins's report that Plaintiff could not go out alone, the
record showed that she did. Id. Cummins stated that Plaintiff could not drive because her hands
were shaky. Tr. 251. The records showed that instead, Plaintiff did not drive because her license
was suspended. Tr 25.
In May 2010, Tomeo Takemoto, the mother of Plaintiff's boyfriend, also completed a
Third Party Function Report. Tr. 279-86. She noted that Plaintiff shook a lot, had a short
temper, needed reminders to go places, had problems getting along with others, and engaged in
few social activities. Id. Her conditions affected her memory, her ability to complete tasks, and
25 - OPINION & ORDER
her concentration. Id. She could not handle stress and changes in routine. Id.
The ALJ gave some weight to Takemoto's statement, noting that it was generally
consistent with the record. Tr. 26. The ALJ did not give the report full weight, however,
because of its inconsistencies with Plaintiff's getting along well with friends, getting along with
her brother, going food shopping with a friend, and attending religious services twice per month.
"Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's
ability to work is competent evidence that the ALJ must take into account." Molina, 674 F.3d at
1114. The ALJ must give reasons "germane to the witness" when discounting the testimony of
lay witnesses. Valentine, 574 F.3d at 694.
Without citing to any specific part of the ALJ's lay witness discussion or to any part of the
record, Plaintiff argues, in conclusory fashion, that the ALJ committed error by "failing to give
reasons that are germane to each witness[.]" Pl.'s Op. Brief 12. With no specifics, Plaintiff
asserts generally that the "ALJ disregard[ed] the evidence of record." Id.
Inconsistency with the evidence is a germane reason for discounting lay witness
testimony. Bayliss, 427 F.3d at 1218; see also SSR 06-3p, at * 5, (available at 2006 WL
2329939) ("For opinions from sources such as teachers, counselors, and social workers who are
not medical sources . . . it would be appropriate to consider such factors as . . . whether the
opinion is consistent with other evidence[.]"). Here, the ALJ cited to evidence in the record
which conflicted with specific statements made by the lay witnesses. The ALJ's failure to fully
credit the testimony of each witness was supported by reasons germane to each witness. The
ALJ did not err.
26 - OPINION & ORDER
In social security cases, remands may be for additional proceedings or for an award of
benefits. E.g., Garrison, 759 F.3d at 1019 (9th Cir. 2014) (explaining that if "additional
proceedings can remedy defects in the original administrative proceeding, a social security case
should be remanded[,]" but "in appropriate circumstances courts are free to reverse and remand a
determination by the Commissioner with instructions to calculate and award benefits") (internal
quotation marks omitted).
To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test.
Id. at 1020; see also Treichler v. Comm'r, 775 F.3d 1090, 1100 (2014) ("credit-as-true" rule has
three steps). First, the ALJ must fail to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020. Second, the record
must be fully developed and further administrative proceedings would serve no useful purpose.
Id. Third, if the case is remanded and the improperly discredited evidence is credited as true, the
ALJ would be required to find the claimant disabled. Id. To remand for an award of benefits,
each part must be satisfied. Id.; see also Treichler, 775 F.3d at 1101 (when all three elements are
met, "a case raises the 'rare circumstances' that allow us to exercise our discretion to depart from
the ordinary remand rule" of remanding to the agency). The "ordinary remand rule" is "the
proper course" except in rare circumstances. Treichler, 775 F.3d at 1101.
Plaintiff argues that the case must be remanded for a determination of benefits. She
contends that a proper evaluation of the evidence warrants a finding of disability because there is
no additional evidence to collect and once the improperly rejected evidence is considered, it is
clear that Plaintiff meets the statutory definition for disability. Defendant argues that this is not a
27 - OPINION & ORDER
case with rare circumstances supporting a remand for benefits. Instead, Defendant argues that
even if it is determined that the ALJ improperly evaluated the evidence, there are still outstanding
issues requiring resolution.
I agree with Defendant. The only error at issue is the failure to include all of Dr.
Cogburn's limitations or at least to explain why the limitations of close supervision, assistance
with organization and structure, and a job coach for training were omitted from the RFC when
the ALJ had given the opinion great weight. As explained above, it is inconsistent to endorse the
opinion and then fail to include all of its limitations absent an explanation.
While the ALJ's error requires remand, the record does not establish one way or the other
whether Plaintiff would or would not be disabled at step five if the close supervision,
organization, and structure assistance limitations were added to the RFC. The vocational expert
testimony suggests that the job coach limitation would preclude competitive employment. Tr.
67. However, it is important to note that the job coach limitation provided by Dr. Cogburn was
that it was "likely to be helpful" to Plaintiff. Because that statement is somewhat ambiguous in
that it could be viewed as a discretionary recommendation or it could be viewed as imperative to
Plaintiff's ability to function in a competitive environment, it does not conclusively establish
disability. Accordingly, it is the ALJ in the first instance who should address all of Dr. Cogburn's
limitations and reassess the RFC. Should the ALJ not incorporate all of her recommendations in
the RFC, he must provide a sufficient explanation for any which are omitted. If necessary, Dr.
Cogburn can be re-contacted for more specific information on the job coach limitation. As the
record stands now, remand for additional proceedings is the appropriate course.
28 - OPINION & ORDER
The Commissioner's decision is reversed and remanded for additional proceedings.
IT IS SO ORDERED.
Marco A. Hernandez
United States District Judge
29 - OPINION & 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?