Lewis v. Commissioner Social Security Administration
OPINION AND ORDER. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 1/19/2017 by Judge Anna J. Brown. (rrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CAROLYN W. COLVIN,
Commissioner, Social Security
NANCY J. MERSEROW
7540 S.W. 51st Avenue
Portland, OR 97219
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Regional Chief Counsel
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
Plaintiff Lisa Lewis seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI) under
Title XVI of the Social Security Act.
This Court has juris-
diction to review the Commissioner's final decision pursuant to
42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter.
Plaintiff protectively filed her application for DIB and
application for SSI on November 23, 2011.
alleged a disability onset date of February 7, 2010.
Plaintiff’s applications were denied initially and on
An Administrative Law Judge (ALJ) held a
hearing on April 2, 2014.
Plaintiff; James Gentile,
a third-party witness; and a vocational expert (VE) testified.
Plaintiff was represented by an attorney at the hearing.
Citations to the official transcript of record filed by
the Commissioner on January 20, 2016, are referred to as "Tr."
2 - OPINION AND ORDER
On May 16, 2014, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
On July 7, 2014, Plaintiff requested
review by the Appeals Council and submitted new evidence to the
Appeals Council, including medical records from March 31, 2014,
through August 5, 2014.
Tr. 312-15, 744-71.
On November 18,
2015, the Appeals Council denied Plaintiff’s request to review
the ALJ’s decision, and the ALJ’s decision became the final
decision of the Commissioner.
See Sims v. Apfel, 530
U.S. 103, 106-07 (2000).
On December 10, 2015, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.
Plaintiff was born on August 18, 1962.
was 52 years old at the time of the hearing.
Plaintiff has a
two-year degree in early-childhood education and a bachelor’s
degree in human development.
The ALJ found Plaintiff
has past relevant work experience as “a child welfare/family case
worker, social services worker, interviewer/eligibility worker,
and community college teacher/parent trainer/teacher for home
Plaintiff alleges disability due to fibromyalgia, migraine
headaches, aneurysm, general anxiety disorder, and personality
3 - OPINION AND ORDER
disorder with borderline and histrionic traits.
Tr. 23, 98.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
See Tr. 23-26.
The initial burden of proof rests on the claimant to
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability “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.”
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The 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 as a whole.
U.S.C. § 405(g).
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
4 - OPINION AND ORDER
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-
sioner determines the claimant is engaged in substantial
5 - OPINION AND ORDER
gainful activity (SGA).
20 C.F.R. §§ 404.1520(a)(4)(I),
See also Keyser v. Comm’r of Soc. Sec., 648
F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
See also Keyser, 648
The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
See also Social Security Ruling
“A ‘regular and continuing basis’ means 8 hours a
day, for 5 days a week, or an equivalent schedule.”
6 - OPINION AND ORDER
In other words, the Social Security Act does not require
complete incapacity to be disabled.
Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
20 C.F.R. §§ 404.1520(g)(1),
At Step One the ALJ found Plaintiff has not engaged in
7 - OPINION AND ORDER
substantial gainful activity since her February 7, 2010, alleged
At Step Two the ALJ found Plaintiff has the severe
impairments of fibromyalgia, migraine headaches, aneurysm,
general anxiety disorder, and personality disorder with
borderline and histrionic traits.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
The ALJ found Plaintiff has the RFC to
perform light work; cannot climb ladders, ropes, or scaffolds;
can occasionally climb ramps and stairs; can occasionally
balance, stoop, kneel, crouch, or crawl; must avoid concentrated
exposures to hazards; is limited to the performance of simple,
routine, repetitive tasks consistent with unskilled work; cannot
have contact with the public; can have superficial contact with
coworkers; is limited to low-stress work, which is defined as
requiring few decisions and few changes; and can work at a
standard or ordinary pace but cannot work at a strict
At Step Four the ALJ concluded Plaintiff is incapable of
performing her past relevant work.
At Step Five the ALJ found Plaintiff could perform other
jobs that exist in the national economy.
8 - OPINION AND ORDER
Accordingly, the ALJ found Plaintiff is not disabled.
Plaintiff contends (1) the ALJ erred when he improperly
rejected the opinions of examining and treating physicians,
(2) the ALJ erred when he failed to properly evaluate Plaintiff’s
fibromyalgia, (3) the Appeals Council erred when it failed to
remand this matter for the ALJ’s consideration of new evidence,
(4) the ALJ failed to evaluate properly Plaintiff’s RFC at Step
Three, (5) the ALJ improperly rejected Plaintiff’s subjective
symptom testimony, and (6) the ALJ improperly relied on the VE’s
The ALJ erred in part in his evaluation of the medical
Plaintiff contends the ALJ erred when he failed to properly
evaluate the opinions of Jane Starbird, Ph.D.; Neal Musselman,
D.O.; and Suzanne Castro, Psy.D., and “de facto” rejected their
opinions without providing legally sufficient reasons supported
by substantial evidence in the record for doing so.
The opinion of a treating physician is generally
accorded greater weight than the opinion of an examining
physician, and the opinion of an examining physician is accorded
greater weight than the opinion of a reviewing physician.
9 - OPINION AND ORDER
v. Colvin, 763
F.3d 1154, 1160 (9th Cir. 2014).
To reject an
uncontradicted opinion of a treating physician, the ALJ must
provide “clear and convincing reasons that are supported by
(9th Cir. 2005).
Bayliss v. Barnhart, 427 F.3d 1211, 1216
Sufficient reasons for rejecting an examining
physician's opinion may include the physician’s reliance on a
claimant's discredited subjective complaints, inconsistency with
the medical records, inconsistency with a claimant's testimony,
and inconsistency with a claimant's daily activities.
v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Medical sources are divided into two categories:
"acceptable" and "not acceptable."
20 C.F.R. § 416.902.
Acceptable medical sources include licensed physicians and
20 C.F.R. § 416.902.
Medical sources classified
as "not acceptable" include, but are not limited to, nurse
practitioners, therapists, licensed clinical social workers, and
SSR 06-03p, at *2.
Factors the ALJ should
consider when determining the weight to give an opinion from
those "important" sources include the length of time the source
has known the claimant and the number of times and frequency that
the source has seen the claimant, the consistency of the source's
opinion with other evidence in the record, the relevance of the
source's opinion, the quality of the source's explanation of his
opinion, and the source's training and expertise.
10 - OPINION AND ORDER
SSR 06-03p, at
On the basis of the particular facts and the above factors,
the ALJ may assign a “not acceptable” medical source opinion
either greater or lesser weight than that of an acceptable
SSR 06-03p, at *5-6.
The ALJ, however, must
explain the weight assigned to such sources to allow the claimant
or subsequent reviewer to follow the ALJ's reasoning.
03p, at *6.
Plaintiff contends the ALJ failed to give clear and
convincing reasons supported by substantial medical evidence in
the record for “de facto” rejecting the opinion of Dr. Starbird,
an examining psychologist, that Plaintiff is moderately limited
in her ability to interact with supervisors.
On December 23, 2013, Dr. Starbird examined Plaintiff
at the request of the Commissioner.
On January 6,
2014, Dr. Starbird completed a Medical Source Statement of
Ability to do Work-Related Activities (Mental) on which she
checked the box that indicated Plaintiff was “moderately” limited
in her ability to work with co-workers and supervisors.
Dr. Starbird stated:
confusion or stress.
“[Plaintiff] has poor tolerance to
Her intellectual function is normal but her
tolerance for interactions with other people is limited.
based on characterological features.”
The ALJ gave “significant weight” to Dr. Starbird’s
11 - OPINION AND ORDER
opinions “because they are consistent with the objective medical
The ALJ subsequently determined Plaintiff
had the RFC to perform light work subject to the limitation that
she have “superficial contact with co-workers.”
specifically noted Dr. Starbird’s Medical Source Statement “is
consistent with moderate limitations in social functioning.”
In Rounds v. Commissioner of Social Security
Administration the court found the ALJ did not reject a
physician’s opinion that the plaintiff had moderate limitations
in her ability to accept instructions and to respond
appropriately to criticism when the physician’s opinion was part
of a checkbox form in the physician’s summary report and the ALJ
specifically referred to it in evaluating the plaintiff’s RFC.
807 F.3d 996, 1005 (9th Cir. 2015).
See also Smith v. Colvin,
No. 3:15-cv-00267-MC, 2016 WL 1065816, at *3 (D. Or. March 15,
2016)(“Moreover, an ALJ’s RFC findings are not required to
address a physician’s checked-box opinion regarding a moderate
limitation, where the ALJ notes this opinion and gives it great
weight as a whole.”)(citing Rounds, 807 F.3d at 1005)).
When an ALJ’s findings are consistent with but not
identical to a physician's assessed limitations of the claimant,
those findings do not constitute a rejection of the physician’s
Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217,
12 - OPINION AND ORDER
1222-23 (9th Cir. 2010).
See also Thomas v. Colvin, No.
3:14-cv-00667-CL, 2015 WL 4603376, at *5 (D. Or. July 29, 2015).
In other words, when the ALJ evaluates a claimant's RFC, his
findings must merely be consistent with the physician’s
conclusions rather than a carbon copy of the physician’s opinion.
Smith, 2016 WL 1065816, at *3.
Otherwise the ALJ is required to
provide legally sufficient reasons for rejecting part of the
Here, as noted, the ALJ did not reject Dr. Starbird’s
In fact, the ALJ generally agreed with Dr. Starbird
regarding Plaintiff's inability to interact in the workplace with
co-workers and supervisors.
Although the ALJ did not
expressly incorporate a supervisory limitation in his evaluation
of Plaintiff’s RFC, the ALJ’s opinion, nonetheless, is consistent
with Dr. Starbird’s opinion that Plaintiff is still able to
“function satisfactorily” in the workplace with limited
interaction with other employees, including supervisors.
On this record the Court concludes the ALJ did not
reject Dr. Starbird’s opinion because the limitations included
in the ALJ’s evaluation of Plaintiff’s RFC were consistent with
Dr. Starbird’s opinion.
Plaintiff next contends the ALJ erred when he failed to
13 - OPINION AND ORDER
address the opinion of Neal Musselman, D.O., Plaintiff’s treating
psychiatrist, that Plaintiff is disabled as a result of her
combined anxiety disorders.
On January 9, 2012, Dr. Musselman submitted a form to
the New Mexico Department of Human Services indicating Plaintiff
had been unable to work for the previous six months due to
post-traumatic stress (PTSD) and chronic anxiety symptoms.
Dr. Musselman stated the duration of Plaintiff’s inability to
work was “not known” at that time.
Plaintiff contends Dr. Musselman’s report was
consistent with the June 9, 2010, report of David Durham, M.D.,
an examining physician, in which Dr. Durham noted “evidence to
indicate a chronic psychiatric illness that may be rendering
Although the Commissioner concedes the ALJ did not
specifically address Dr. Musselman’s report, the Commissioner
contends the ALJ did not err because Dr. Musselman’s opinion does
not satisfy the 12-month duration requirement to establish a
disability, the ALJ credited more reliable medical evidence that
covered the entire period of Plaintiff’s alleged disability
beginning in February 2010, and Plaintiff has not been prejudiced
by the ALJ’s failure to consider specifically Dr. Musselman’s
14 - OPINION AND ORDER
For a claimant to be “disabled” for purposes of
receiving benefits, the claimant’s inability to engage in
substantial gainful employment must last or be expected to last
at least 12 months.
Barnhart v. Wilson, 535 U.S. 212 (2012).
The ultimate determination of “disability” is reserved
to the Commissioner.
20 C.F.R. § 404.1527(d)(1), (3).
physician may render opinions limited to the issue of the
claimant’s ability to perform work.
995, 1012 (9th Cir. 2012).
Garrison v. Colvin, 759 F.3d
Although “[t]he administrative law
judge is not bound by the uncontroverted opinions of the
claimant’s physicians on the ultimate issue of disability . . .,
he cannot reject [those opinions] without presenting clear and
convincing reasons for doing so.”
Reddick v. Chater, 157 F.3d
715, 725 (9th Cir. 1998).
Dr. Musselman’s opinion.
Dr. Musselman, Plaintiff’s treating physician,
concluded Plaintiff was temporarily unable to work.
Dr. Musselman opined as of February 2012 Plaintiff suffered from
PTSD and other chronic anxiety symptoms that prevented her from
working for the previous six months, and she was “not able to
pursue competent employment” for an unknown duration.
The ALJ failed to address Dr. Musselman’s opinion.
As noted, if the ALJ disregards a treating physician’s
medical opinion, the ALJ must set forth specific and legitimate
15 - OPINION AND ORDER
reasons that are supported by substantial evidence in the record
for doing so even if that opinion is controverted.
F.3d at 1012.
Although the ALJ failed to address
Dr. Musselman’s report, the Commissioner, nevertheless, maintains
the ALJ’s failure is harmless error on the grounds that Plaintiff
has not shown any prejudice and that Dr. Musselman’s report is
not entitled to any special significance.
In Hill v. Astrue the Commissioner, as in this case,
conceded the ALJ did not address the treating physician’s
The Hill court noted the conclusion of the plaintiff’s
treating physician that the plaintiff’s “combination of mental
and medical problems makes the likelihood of sustained full time
competitive employment unlikely.”
698 F.3d 1153, 1160 (9th Cir.
The Commissioner asserted such a disability opinion was
an issue reserved to the Commissioner and, therefore, not
See 20 C.F.R. § 404.1527(d)(1).
The court stated the
treating physician’s statement that the plaintiff would be
“unlikely” to work full-time was not a conclusory statement that
the plaintiff was disabled as described in the regulation, but
instead was an assessment based on objective medical evidence of
the plaintiff’s likelihood of being able to sustain full-time
Thus, the court concluded the ALJ’s disregard for
the treating physician’s medical opinion was not harmless error.
Id. at 1160.
16 - OPINION AND ORDER
Here the ALJ relied on and gave greater weight to the
opinions of Drs. Starbird, Castro, and Anderson, who were all
examining psychiatrists or psychologists.
Thus, the ALJ was
required to provide specific and legitimate reasons for
disregarding the opinion of Dr. Musselman, Plaintiff’s treating
physician, and for giving greater weight to the opinions of the
examining psychiatrists and psychologists.
As noted, however,
the ALJ failed to even address Dr. Musselman’s opinion.
Following the reasoning of the Hill court, this Court concludes
the ALJ’s disregard for Dr. Musselman’s opinion is not harmless
Accordingly, on this record the Court concludes the ALJ
erred when he did not address Dr. Musselman’s opinion and did not
provide specific legitimate reasons supported by substantial
evidence in the record for his “de facto” rejection of Dr.
Plaintiff contends the ALJ erred when he “de facto”
rejected the opinion of Dr. Castro that Plaintiff was limited to
employment that did not require more than “intermittent
interaction with others.”
On March 20, 2012, Dr. Castro, an examining
psychologist, completed a Mental Residual Functional Capacity
Assessment in which she indicated “[Plaintiff] is capable of
17 - OPINION AND ORDER
understanding, remembering, and following simple, routine tasks
in a setting where interaction with others is superficial and
Although the ALJ included in his
evaluation of Plaintiff’s RFC the limitation that Plaintiff “have
superficial contact with coworkers,” Tr. 28, Plaintiff contends
the ALJ’s failure to include the requirement that Plaintiff’s
interaction with others also must be “intermittent” as well as
superficial constitutes a “de facto” rejection of Dr. Castro’s
In addition, Plaintiff asserts the ALJ’s error resulted
in the ALJ posing an inadequate hypothetical to the VE at Step
As noted, the ALJ’s assessment of Plaintiff’s RFC must
merely be consistent with the medical evidence rather than a
See Smith, 2016 WL 1065816, at *3.
Turner, 613 F.3d at 1222-23.
Here Dr. Castro included the term
“intermittent” in her narrative description of Plaintiff’s
In the “social interaction” portion of her report,
however, she indicated Plaintiff’s ability to “interact with the
general public” was “moderately limited” and her ability to “get
along with coworkers or peers without distracting them or
exhibiting behavioral extremes” was “not significantly limited.”
In his assessment of Plaintiff’s RFC the ALJ included a
“no contact” limitation with the public and “superficial” contact
18 - OPINION AND ORDER
Thus, the ALJ’s assessment of
Plaintiff’s RFC adequately reflected the limitations stated in
Dr. Castro’s report.
On this record the Court concludes the ALJ did not err in
his consideration of Dr. Castro’s opinion when he evaluated
Plaintiff’s RFC nor did the ALJ omit from his hypothetical posed
to the VE the conclusions of Dr. Castro as to Plaintiff’s
The ALJ did not fail to consider Plaintiff’s fibromyalgia.
Plaintiff contends the ALJ erred when he failed to account
for the repeated manifestations of Plaintiff’s fibromyalgia when
evaluating Plaintiff’s RFC.
The Commissioner, in turn, asserts the ALJ noted Plaintiff
had fibromyalgia and, accordingly, included in his assessment of
Plaintiff’s RFC a limitation to light-exertion work in
consideration of Plaintiff’s condition.
On December 6, 2012, Sharon B. Eder, M.D., a state agency
consultant, reviewed Plaintiff’s records and assessed Plaintiff
with “light exertional limitations” based on Plaintiff’s
Tr. 31, 575.
The ALJ gave “great weight” to
Dr. Eder’s assessment and found it to be consistent with the
On December 23, 2012, Kim Webster, M.D., an examining
physician, found “no objective evidence” that Plaintiff had any
19 - OPINION AND ORDER
Tr. 31, 577-83.
Nevertheless, the ALJ
gave “little weight” to Dr. Webster’s opinion because “some
limits are necessary to prevent exacerbation of the [Plaintiff’s]
headaches and in recognition of her diffuse fibromyalgia.”
The ALJ concluded Plaintiff’s fibromyalgia is a “severe”
impairment diagnosed by “an “acceptable medical source, . . .
lasted for a continuous period of 12 months, and . . . caused
more than a minimal effect” on Plaintiff’s ability to perform
RFC, the ALJ noted:
When evaluating Plaintiff’s
“Treatment records indicate [Plaintiff] has
diffuse pain and a fibromyalgia diagnosis, but this appears to be
less limiting than her headaches and anxiety.”
The ALJ concluded Plaintiff’s allegations that “she suffers
from dizziness, buzzing in her ears, fatigue, and heart
palpitations,” Tr. 25, did not meet the definitional requirements
of 20 C.F.R. § 416.905 to qualify as disabilities.
Plaintiff contends these conditions constitute “somatic symptoms”
of fibromyalgia that should have been considered by the ALJ.
Although the ALJ concluded there was not any “evidence from
an acceptable medical source to establish the existence of a
medically determinable impairment” as to these specific symptoms,
the ALJ, nonetheless, found Plaintiff has the severe impairment
of fibromyalgia and included limitations in his assessment of
Plaintiff’s RFC “in recognition of [Plaintiff’s] diffuse
20 - OPINION AND ORDER
Tr. 31, 32.
On this record the Court concludes the ALJ properly assessed
Plaintiff’s fibromyalgia and included the appropriate limitations
in his evaluation of Plaintiff’s RFC.
III. Appeals Council.
Plaintiff contends the Appeals Council erred when it failed
to remand this case to the ALJ for consideration of the new
evidence submitted by Plaintiff to the Appeals Council after the
Plaintiff timely provided the Appeals Council with
additional evidence that included a questionnaire completed2 on
August 2, 2014, by Leslie Gellert, a licensed clinical social
worker (LCSW), who was Plaintiff’s mental-health provider since
The Appeals Council reviewed
LCSW Gellert's opinion but declined to review the ALJ’s decision
on the ground that the additional evidence “does not provide a
basis for changing the Administrative Law Judge’s decision.”
Plaintiff argues the new evidence demonstrates Plaintiff is
markedly limited in her ability to accept instructions and to
The questionnaire was sent by Plaintiff’s counsel to
LCSW Gellert on February 18, 2014, and Plaintiff requested
completion of the form prior to the scheduled hearing in April
2014. Gellert went into labor in March 2014 and, therefore, was
unable to complete the questionnaire until August 2, 2014, when
she returned from maternity leave. Tr. 770-71.
21 - OPINION AND ORDER
respond appropriately to criticism from supervisors, and,
therefore, she is more restricted than the ALJ’s finding of
“moderate” social function limitations that did not limit
Plaintiff’s interactions with supervisors.
The Commissioner contends the opinions in the record by
Drs. Starbird, Castro, and Anderson, examining psychiatrists or
psychologists, constitute substantial medical evidence sufficient
to support the RFC determined by the ALJ.
When a claimant “submits evidence for the first time to the
Appeals Council and the Appeals Council considers that evidence
in denying review of the ALJ’s decision, the new evidence is part
of the administrative record, which the district court must
consider in determining whether the Commissioner’s decision is
supported by substantial evidence.”
Brewes v. Comm’r. of Soc.
Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012).
evidence is material if it bears “directly and substantially on
the matter in dispute.”
Luna v. Astrue, 623 F.3d 1378, 1380 (9th
Remand is necessary when the material evidence gives
rise to a “reasonable possibility” that the new evidence might
change the outcome of the administrative hearing.”
Booz v. Sec'y
of Health & Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984).
See also Borrelli v. Comm’r. of Soc. Security, 570 F. App’x 651,
652 (9th Cir. 2014).
The Court, therefore, considers
LCSW Gellert’s opinion.
22 - OPINION AND ORDER
See Brewes, 682 F.3d at 1159-60, 1162-
The ALJ concluded Plaintiff had “moderate” difficulties with
regard to concentration, persistence, or pace.
ALJ’s determination was based on Dr. Starbird’s opinion that
Plaintiff could not carry out complex instructions and lacked an
ability to make judgments on complex work-related decisions and
that Plaintiff’s concentration would be impaired under stress.
Tr. 27, 596-98.
LCSW Gellert reported Plaintiff has “marked” limitation as
to concentration, persistence, or pace because “physical and
mental health symptoms significantly impact her pace and
completion of tasks due to trouble concentrating.”
Thus, LCSW Gellert’s opinion is consistent with Dr. Starbird’s
assessment of Plaintiff.
Accordingly, the Court concludes the Appeals Council
properly declined to remand this matter to the ALJ on the basis
of LCSW Gellert’s report submitted after the ALJ’s decision.
The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff alleges the ALJ erred when he found Plaintiff’s
testimony was not entirely credible.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
The claimant must produce objective medical evidence
of an impairment and must show the impairment or combination of
23 - OPINION AND ORDER
impairments could reasonably be expected to produce some degree
Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986).
claimant, however, need not produce objective medical evidence of
the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's testimony only if he provides clear and convincing
reasons for doing so.
Parra v. Astrue, 481 F.3d 742, 750 (9th
Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
General assertions that the claimant's testimony is not
credible are insufficient.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
Id. (quoting Lester, 81 F.3d at 834).
The ALJ concluded “[a]lthough some limitations are to be
expected, the record contradicts [Plaintiff’s] testimony with
regard to their nature and extent.”
The ALJ, however,
did “not reject [Plaintiff’s] statements about the intensity
and persistence of symptoms solely because the available
objective medical evidence does not substantiate the statements.”
Instead the ALJ considered “any medically determinable
impairment resulting in symptom-related functional limitations
. . . which [could] reasonably be accepted as consistent with the
objective medical evidence and other evidence.”
cited Plaintiff’s medical records when he determined the evidence
24 - OPINION AND ORDER
did not support Plaintiff’s allegations.
example, although Plaintiff reported limitations in her daily
activities, she told Dr. Starbird in December 2013 that she did
laundry, washed dishes, vacuumed, read, and watched movies.
Plaintiff also participated in activities at her
synagogue and joined the choir for a brief time.
Plaintiff noted her anxiety began as a child, and she experienced
symptoms, including headaches, “off and on.”
mental status in 2012 was “relative[ly] stable” with counseling
On this record the Court finds the ALJ did not err when he
found Plaintiff was not fully credible because the ALJ provided
clear and convincing reasons supported by substantial evidence in
the record for doing so.
The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
Id. at 1179.
The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
25 - OPINION AND ORDER
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
The court should grant an immediate award
of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
The second and third prongs of the test often merge into a
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
Here the ALJ specifically stated in his findings that “[t]he
record does not contain any opinion from a treating or examining
physician indicating that [Plaintiff] is disabled.”
ALJ, however, did not address the opinion of Dr. Musselman,
Plaintiff’s treating psychiatrist, that Plaintiff was not able to
pursue employment, and the ALJ failed to provide specific and
legitimate reasons for disregarding Dr. Musselman’s opinion in
favor of the opinions of examining psychiatrists and
The Court concludes on this record that a remand for further
proceedings consistent with this Opinion and Order is required to
permit the ALJ to consider and to address Dr. Musselman’s opinion
26 - OPINION AND ORDER
and, in light of Dr. Musselman's opinion, to reassess Plaintiff’s
RFC and the hypothetical posed to the VE if necessary.
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 19th day of January, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
27 - OPINION AND ORDER
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