Wyss v. Commissioner Social Security Administration
Filing
18
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 attached 31 page Opinion and Order. Signed on 12/19/2016 by Judge Anna J. Brown. (rr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LISA WYSS,
3:16-cv-00023-BR
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr Law Offices
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
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
(503) 727-1011
1 - OPINION AND ORDER
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
LARS J. NELSON
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
(206) 615-2732
Attorneys for Defendant
BROWN, Judge.
Plaintiff Lisa Wyss seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s application
for Disability Insurance Benefits (DIB) under Title II of the
Act.
This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).
Following a thorough
review of the record, 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.
ADMINISTRATIVE HISTORY
Plaintiff filed her application for DIB on May 14, 2012.
Tr. 19, 176.1
Her application was denied initially and on
1
Citations to the official transcript of record filed by
the Commissioner on June 3, 2016, are referred to as “Tr.”
2 - OPINION AND ORDER
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on May 29, 2014, at which Plaintiff was represented by an
attorney.
Tr. 35.
the hearing.
A vocational expert (VE) also testified at
Tr. 35.
The ALJ issued a decision on June 25, 2014, in which he
found Plaintiff is not entitled to benefits.
Tr. 19-29.
That
decision became the final decision of the Commissioner on
November 9, 2015, when the Appeals Council denied Plaintiff’s
request for review.
Tr. 1-3.
See Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
BACKGROUND
Plaintiff was born on June 25, 1968; was 45 years old on the
date of the hearing; and has a high-school education with some
post-secondary technical education.
Tr. 40, 160.
Plaintiff has
prior relevant work experience as an administrative clerk, callcenter operator, receptionist, restaurant hostess, retail
salesperson, convenience-store cashier, truck driver, beautyproducts salesperson, makeup artist, and esthetician.
Tr. 27-28.
Plaintiff alleges disability since May 8, 2012, due to
tendinitis, depression, “mood swings,” a head injury suffered in
a December 2011 motor-vehicle accident, low-back pain, and low
blood sugar.
Tr. 180.
September 30, 2016.
Plaintiff’s date last insured was
Tr. 176.
3 - OPINION AND ORDER
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
medical evidence.
See Tr. 22-27.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
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.”
§ 423(d)(1)(A).
42 U.S.C.
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.
42
U.S.C. § 405(g).
See also Brewes v. Comm’r, 682 F.3d 1157, 1161
(9th Cir. 2012).
Substantial evidence is “relevant evidence that
a reasonable mind might accept as adequate to support a
4 - OPINION AND ORDER
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 at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner’s decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
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
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.
Keyser v. Comm’r of
Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
See also
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
5 - OPINION AND ORDER
§ 404.1520.
Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 404.1520(a)(4)(I).
See also Keyser, 648
F.3d at 724.
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.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.
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).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
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).
The
claimant’s RFC is an assessment of the sustained, work-related
6 - OPINION AND ORDER
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”
SSR 96-8p, at *1.
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)).
The assessment of a claimant’s
RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.
An improper evaluation
of the claimant’s ability to perform specific work-related
functions “could make the difference between a finding of
‘disabled’ and ‘not disabled.’”
SSR 96-8p, at *4.
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).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
7 - OPINION AND ORDER
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
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).
ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since May 8, 2012, her alleged onset
date.
Tr. 21.
At Step Two the ALJ found Plaintiff has the following severe
impairments:
“cervical/lumbar strain,” tendinitis, hyperacusis,
post-traumatic stress disorder, depression, pain disorder with
psychological factors, and borderline personality disorder.
Tr. 21.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.
Tr. 21-22.
In his assessment of Plaintiff’s RFC the ALJ found Plaintiff
has the functional capacity to perform a range of light work, but
the ALJ limited Plaintiff to “no overhead reaching bilaterally”;
not more than frequent reaching, handling, or fingering
8 - OPINION AND ORDER
bilaterally; work environments that do not have more than
moderate noise levels; tasks that are simple, routine, and
repetitive consistent with unskilled work; low-stress work
environments that require few decisions and few changes in the
workplace; occasional, superficial contact with the public and
coworkers; and occasional contact with supervisors.
Tr. 22-27.
At Step Four the ALJ found Plaintiff is unable to perform
her past relevant work as an administrative clerk, call-center
operator, receptionist, restaurant hostess, retail salesperson,
convenience-store cashier, truck driver, beauty-products
salesperson, makeup artist, or esthetician.
Tr. 27-28.
At Step Five, however, the ALJ determined Plaintiff can
perform other occupations that exist in significant numbers in
the national economy, including mailroom sorter or office helper.
Tr. 28-29.
Accordingly, the ALJ found Plaintiff is not disabled and,
therefore, is not entitled to benefits.
Tr. 29.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) did not include
Plaintiff’s traumatic brain injury, vision changes, degenerative
joint disease, or fatigue at Step Two; (2) discredited
Plaintiff’s testimony; (3) discredited the medical and
psychological opinions of Wendy Newton, Psy.D.; Steven P. Barry,
9 - OPINION AND ORDER
Ph.D.; Tricia Zigrang, Ph.D.; Shahana Koslofsky, Ph.D.; Christine
Jones, DC; and Kimberly Karlsgodt, DPT; and (4) discredited the
lay testimony of Jennifer Siri Rasch, Tim A. Huuki, and Joyce L.
Wyss.
I.
Step Two
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.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 416.920(a)(4)(ii); Keyser v. Comm’r of Soc. Sec. Admin.,
648 F.3d 721, 724 (9th Cir. 2011).
A severe impairment
“significantly limits” a claimant’s “physical or mental ability
to do basic work activities.”
20 C.F.R. §§ 416.921(a), (b).
Such abilities and aptitudes include walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, handling, seeing,
hearing, and speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
Id.
The Step Two threshold is low:
[A]n impairment can be considered as not severe only if
it is a slight abnormality which has such a minimal
effect on the individual that it would not be expected
to interfere with the individual’s ability to work
. . . . [T]he severity regulation is to do no more
than allow the Secretary to deny benefits summarily to
10 - OPINION AND ORDER
those applicants with impairments of a minimal nature
which could never prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
The Ninth Circuit has held when the ALJ has resolved Step
Two in a claimant’s favor, any error in designating specific
impairments as severe does not prejudice a claimant at Step Two
as long as the ALJ considers the omitted impairment in his
assessment of the claimant’s RFC.
Burch v. Barnhart, 400 F.3d
676, 682-84 (9th Cir. 2005).
Plaintiff asserts the ALJ erred at Step Two because the ALJ
did not include Plaintiff’s traumatic brain injury symptoms,
vision changes, “degenerative joint disease,” and fatigue as
severe impairments.
Plaintiff, however, fails to identify any
functional limitations caused by these conditions that are not
included in the ALJ’s assessment of Plaintiff’s RFC.
For
example, references to Plaintiff’s vision loss are sporadic
throughout the record and do not specifically identify the degree
to which Plaintiff has suffered any permanent loss of visual
acuity.
See Tr. 261 (“[Plaintiff] has suffered some . . . visual
changes.”).
The primary symptoms associated with Plaintiff’s
traumatic brain injury suffered as a result of her December 2011
automobile accident were her memory and hearing loss, both of
which the ALJ considered in his assessment of Plaintiff’s RFC.
Similarly, Plaintiff’s degenerative joint disease was most
frequently discussed in conjunction with the arm and back
11 - OPINION AND ORDER
limitations that the ALJ incorporated into his assessment of
Plaintiff’s RFC.
Finally, Plaintiff’s fatigue was only
sporadically mentioned throughout the medical record and was not
addressed in any way from which the ALJ could reasonably assess
functional limitations.
See Tr. 321 (Plaintiff “[f]atigued very
quickly” during physical therapy).
Accordingly, on this record the Court concludes the ALJ did
not commit harmful error at Step Two when he did not list
Plaintiff’s traumatic brain injury symptoms, vision changes,
“degenerative joint disease,” and fatigue as severe impairments.
II.
Plaintiff’s Testimony
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
See also Spelatz v. Astrue, 321 F. App’x 689, 692
(9th Cir. 2009).
The claimant, however, need not produce
objective medical evidence of the actual symptoms or their
severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
12 - OPINION AND ORDER
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.
1995)).
General assertions that the claimant’s testimony is not
credible are insufficient.
Id.
The ALJ must identify “what
testimony is not credible and what evidence undermines the
claimant's complaints.”
Id. (quoting Lester, 81 F.3d at 834).
At the May 29, 2014, hearing Plaintiff testified she was
“wrongfully terminated” from her previous job in 2012 and that
she later obtained a settlement as a result.
Tr. 40.
Plaintiff
stated she continued to look for employment until her
unemployment benefits ran out, but she has not looked for work
since that time.
Tr. 41.
Plaintiff testified she is disabled as a result of her
“severe tendinitis” that makes it “impossible for [her] to do
jobs that involve using [her] hands and . . . arms.”
Tr. 42.
Plaintiff stated she is unable to complete tasks that require
repetitive movements and that she gets help cooking and
performing housework.
Tr. 43.
In addition, Plaintiff reported she has a “very, very
horrible memory” and a hearing impairment.
Tr. 42.
Plaintiff
testified she is unable to hear a person talking “a few feet”
away from her when she is in an environment with background noise
13 - OPINION AND ORDER
such as a restaurant.
Tr. 44.
Plaintiff stated one of her
medical treatment providers offered a therapy that would improve
her hearing, but she could not afford the treatment.
Tr. 45-46.
Plaintiff testified she also is unable to remember how to perform
basic work functions since her December 2011 automobile accident.
Tr. 51.
Plaintiff also testified she has mental-health problems that
cause her to be unable to control her anger, and she throws
objects and yells at people.
Tr. 47-48.
Plaintiff reported she
is able to maintain casual friendships and acquaintances, but she
is unable to maintain functional relationships on a daily basis
with people she works or lives with.
Tr. 55.
Plaintiff
testified she has sought counseling, but she has been unable to
locate any free or low-cost services and cannot afford to pay
full cost for consistent counseling or mental-health care.
Tr. 49-50.
Plaintiff testified during a typical day she exercises by
walking and stretching and does “a lot of cooking” in order to
accommodate her food sensitivities.
Tr. 52.
Plaintiff states
her hobbies are reading and communicating with people on the
internet and text messaging.
Tr. 52.
In her June 26, 2012, Adult Function Report, Plaintiff
reported her mental-health problems cause her to “break down and
cry several times a week.”
14 - OPINION AND ORDER
Tr. 211.
Plaintiff stated her
tendinitis causes her to be unable to lift her hands or arms
after she completes a task that requires repetitive motions.
Tr. 211.
Plaintiff stated she suffers from low-back pain that
limits her to 30 minutes of standing before she is forced to sit
down.
Tr. 211.
As a result of low blood sugar and food
allergies, Plaintiff reported she must eat eight times per day,
and if she eats any food with sugar, sugar substitutes,
chemicals, or preservatives, “it will literally throw [her] into
a rage.”
Tr. 212.
Plaintiff reported she is no longer able to lift greater
than ten pounds as a result of her conditions, and she requires
help grocery shopping.
Tr. 213.
Plaintiff stated it takes her
one to two hours to prepare meals and that she does laundry,
irons clothes, vacuums, dusts, and cleans dishes.
Tr. 215.
Plaintiff, however, noted she performs her chores less frequently
as a result of her conditions.
Tr. 215.
Plaintiff indicated her
conditions also limit her abilities to lift, squat, bend, stand,
reach, sit, climb stairs, see, remember, concentrate, understand,
follow instructions, use her hands, and get along with others.
Tr. 217.
Plaintiff reported she can walk for approximately an
hour before needing to stop and rest for approximately ten
minutes.
Tr. 217.
Plaintiff stated she has difficulty getting
along with her bosses and has noticed “strange obsessive
compulsive behaviors,” including compulsive cleaning and
15 - OPINION AND ORDER
organizing.
Tr. 217-18.
The ALJ discredited Plaintiff’s testimony on the grounds
that (1) Plaintiff’s testimony was inconsistent with her medical
treatment history; (2) Plaintiff only sought conservative
treatment options for her conditions; (3) Plaintiff’s alleged
limitations were inconsistent with her activities of daily
living; (4) Plaintiff’s most recent past employment ended for
nondisability reasons; and (5) Plaintiff demonstrated secondary
gain motives (i.e., Plaintiff’s subjective reporting of symptoms
was not designed to assist medical and psychological treatment,
but was, in fact, motivated to obtain Social Security benefits).
After a thorough review of the record the Court concludes
the ALJ provided clear and convincing reasons supported by
substantial evidence for rejecting Plaintiff’s testimony.
The ALJ noted the medical record did not support Plaintiff’s
allegations of significant memory impairments.
Although
Plaintiff testified she has a “horrible memory,” testing
performed by Steven P. Barry, Ph.D., indicated Plaintiff had only
“[m]ild, clinically insignificant, [memory] impairment.”
677-78.
Tr. 46,
Moreover, Dr. Barry noted he did “not find evidence of
clinically significant memory concerns” and there was “the
appearance of some level of secondary gain . . . from her
complaints related to memory and pain.”
Tr. 680.
Similarly, the
ALJ pointed out that Plaintiff’s allegations that her arm pain
16 - OPINION AND ORDER
was caused by tendinitis were inconsistent with the evaluation of
James T. Nolan, M.D., who found there was “no evidence of any
tendinitis present” and “no evidence of inflammation anywhere.”
Tr. 330.
The Court finds the inconsistencies identified by the
ALJ between Plaintiff’s testimony and the medical record are
compelling reasons to discredit Plaintiff’s testimony.
As noted, Plaintiff testified she was wrongfully terminated
from her previous employment at Stark’s Vacuums and received a
settlement as a result of the wrongful termination.
Tr. 40.
Plaintiff’s supervisor at Stark’s, however, stated Plaintiff was
terminated as a result of a company-wide restructuring rather
than because she was unable to work.
Tr. 556.
On this record
the ALJ concluded Plaintiff left her employment for nondisability
reasons immediately preceding her alleged onset date of
disability.
See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
2001)(noting an ALJ may discredit a claimant’s assertion of onset
of disability by reference to the fact that the claimant left her
immediately preceding employment for nondisability reasons).
See
also Page v. Colvin, No. 14–35243, 2015 WL 6153597, at *1 (9th
Cir. Oct. 20, 2015).
Finally, the ALJ’s finding that Plaintiff demonstrated
secondary-gain motives is supported by substantial evidence in
the record.
As noted, Dr. Barry indicated Plaintiff demonstrated
“some level of secondary gain” in her subjective reporting.
17 - OPINION AND ORDER
Tr. 680.
Dr. Barry also noted “[n]either [Plaintiff] nor her
chiropractor expect success at [vocational rehabilitation], if
success is defined as returning to work; instead, the expectation
is that [vocational rehabilitation] will find her unemployable
and this will assist her in her application for Social Security
Disability.”
Tr. 679.
In addition, on September 11, 2013,
Plaintiff’s vocational rehabilitation case worker noted Plaintiff
“has limited what she can and wants to do,” and “[w]hen we do
find a goal [that Plaintiff is] agreeable to[, Plaintiff] finds
some reason why it won’t work.”
Tr. 653.
On this record, therefore, the Court concludes the ALJ
provided legally sufficient reasons for discrediting Plaintiff’s
testimony.
III. Medical Testimony
As noted, Plaintiff contends the ALJ erred when he
discredited the medical and psychological opinions of
Drs. Newton, Koslofsky, Barry, Zigrang, Jones, and Karlsgodt.
An ALJ may reject a treating physician’s opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes findings setting forth specific,
legitimate reasons for doing so that are supported by substantial
evidence in the record.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1232 (9th Cir. 2011).
When the medical opinion of
a treating physician is uncontroverted, however, the ALJ must
18 - OPINION AND ORDER
give “clear and convincing reasons” for rejecting it.
Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)(quoting
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)).
The
opinion of a treating physician is “given greater weight than the
opinions of other physicians.”
Kelly v. Astrue, No. 10–36147,
2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen v. Chater,
80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
treats the claimant.
Cir. 1995).
Lester v. Chater, 81 F.3d 821, 830 (9th
See also Garrison v. Colvin, No. 12-CV-15103, 2014
WL 3397218, at *13 (9th Cir. 2014).
“The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
at 1233 (quoting Lester, 81 F.3d at 831).
Taylor, 659 F.3d
When a nonexamining
physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the nonexamining physician’s
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.
See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008).
A nonexamining physician's opinion can
constitute substantial evidence if it is supported by other
evidence in the record.
Morgan v. Comm’r of Soc. Sec. Admin.,
169 F.3d 595, 600 (9th Cir. 1999).
19 - OPINION AND ORDER
See also Simpson v. Astrue,
No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18,
2012).
A.
Dr. Newton
Dr. Newton treated Plaintiff briefly between November 2012
and February 2013.
Dr. Newton.
Plaintiff had four appointments with
Dr. Newton neither submitted a formal opinion to the
Social Security Administration nor conducted any comprehensive
evaluation of Plaintiff’s mental impairments and functional
limitations that could be viewed as the equivalent of medical
testimony.
Tr. 576-80.
Instead the “opinion” from Dr. Newton
that Plaintiff relies on to support her contention that the ALJ
improperly discredited Dr. Newton’s testimony are merely the four
treatment notes from Plaintiff’s appointments with Dr. Newton.
The treatment notes from Dr. Newton, however, do not qualify as
medical testimony that requires special consideration by the ALJ,
but instead merely represent a part of the general record.
The ALJ summarized Dr. Newton’s treatment notes, but he
ultimately concluded “[t]he difficulty with evaluating the
claimant’s mental health concerns is that there is effectively no
longitudinal history of mental health diagnosis, treatment, or
response to treatment to accurately assess the severity of the
claimant’s condition.”
Tr. 25.
The ALJ, therefore, considered
Dr. Newton’s treatment notes together with the rest of the record
relating to Plaintiff’s mental impairments; correctly concluded
20 - OPINION AND ORDER
the record regarding Plaintiff’s mental impairments was sparse;
and, therefore, reasonably approached evaluation of Plaintiff’s
mental-health conditions with caution.
Accordingly, on this record the Court concludes the ALJ did
not err in his consideration of Dr. Newton’s treatment notes.
B.
Drs. Koslofsky and Barry
Dr. Barry conducted a psychological evaluation of Plaintiff
on April 24, 2013, in relation to Plaintiff’s participation in
vocational rehabilitation.
Tr. 668.
Dr. Barry conducted an
extensive clinical interview and several psychological tests.
Dr. Barry “did not find evidence of clinically significant memory
concerns,” but he, nonetheless, found Plaintiff “isn’t a good
candidate for rehabilitation and employment” based on her
personality disorder.
Tr. 680.
Dr. Barry recommended employment
that limits “contact with co-workers”; “day-to-day, moment-tomoment contact with supervisors”; and “the amount of time she has
to stay involved with customers.”
Tr. 680.
Dr. Koslofsky also conducted a psychological evaluation of
Plaintiff on April 8, 2014, in relation to Plaintiff’s
participation in vocational rehabilitation.
Tr. 639-43.
After
conducting an interview and completing a Personality Assessment
Inventory, Dr. Koslofsky found Plaintiff’s “profile suggests that
she is likely to be quite emotionally labile, manifesting fairly
rapid mood swings.”
Tr. 641.
21 - OPINION AND ORDER
Dr. Koslofsky diagnosed Plaintiff
with chronic post-traumatic stress disorder and found Plaintiff
experiences symptoms of hyper-arousal including irritable or
aggressive behavior as well as self-destructive behavior.
Tr. 642.
Although the ALJ summarized the opinions of Drs. Barry and
Koslofsky, the ALJ merely stated “[t]he difficulty with
evaluating the claimant’s mental health concerns is that there is
effectively no longitudinal history of mental health diagnosis,
treatment, or response to treatment to accurately assess the
severity of the claimant’s condition.”
Tr. 25.
The ALJ,
therefore, did not provide specific and legitimate reasons for
discrediting the opinions of Drs. Barry and Koslofsky.
On this record, therefore, the Court concludes the ALJ erred
when he failed to provide legally sufficient reasons for
discrediting the opinions of Drs. Koslofsky and Barry.
C.
Dr. Zigrang
Dr. Zigrang completed a Mental Status Report on June 26,
2016.
Plaintiff saw Dr. Zigrang on a weekly basis from March 16,
2012, until May 30, 2012.
Tr. 324.
Dr. Zigrang diagnosed
Plaintiff with “major depression” that caused Plaintiff to
experience depressed moods, hopelessness, poor concentration, and
difficulty controlling her anger.
Tr. 324.
Dr. Zigrang did not
perform any psychological tests on Plaintiff.
Tr. 324.
Dr. Zigrang stated Plaintiff’s mood swings had improved as a
22 - OPINION AND ORDER
result of dietary changes and that her depression had improved
through the course of psychotherapy.
Tr. 325.
Dr. Zigrang also
stated Plaintiff has difficulty concentrating both as a result of
her depression and after her injuries from the motor-vehicle
accident.
Tr. 326.
The ALJ gave “some weight” to Dr. Zigrang’s assessment, but
he partially discredited her opinion because she did not perform
any psychological testing and her statements were “very general
and provided little specific opinion regarding the severity of
limits.”
Tr. 25, 324.
In light of the fact that the ALJ
properly discredited Plaintiff’s subjective reporting, the lack
of psychological testing undermines Dr. Zigrang’s opinion.
In
addition, the ALJ reasonably noted Dr. Zigrang’s opinion was
general and contained few specific functional limitations beyond
those which the ALJ incorporated into his assessment of
Plaintiff’s RFC.
Accordingly, on this record the Court concludes the ALJ
provided legally sufficient reasons for discrediting the opinion
of Dr. Zigrang.
D.
Dr. Jones
Some medical sources, including nurse-practitioners,
physicians’ assistants, naturopaths, chiropractors, audiologists,
and therapists, are considered “other sources” under 20 C.F.R.
§ 404.1513(d)(1), and their opinions are not entitled to the same
23 - OPINION AND ORDER
consideration as the “acceptable medical sources” listed in 20
C.F.R. § 404.1513(a).
In order to reject the opinion of an
“other source” the ALJ must provide “‘reasons germane to each
witness for doing so.’”
Molina, 674 F.3d at 1111 (quoting Turner
v. Comm’r Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)).
Dr. Jones, Plaintiff’s chiropractor, submitted a letter to
the Social Security Administration dated March 15, 2013.
Dr. Jones stated she had treated Plaintiff for over 12 years.
Tr. 343.
She reported Plaintiff “has struggled with pain during
any repetitive motion” since 2000.
Tr. 343.
Dr. Jones also
reported Plaintiff’s “tendinitis pain” has “disabled her from
carrying out simp[le acts of daily living such as lifting a
gallon jug, or cleaning her home, or drying her hair.”
Tr. 343.
Dr. Jones stated Plaintiff’s “memory might impair her ability to
return to work” and that a psychological evaluation revealed
Plaintiff “was suffering from a personality disorder or mental
illness.”
Tr. 344.
Dr. Jones opined Plaintiff suffers mood
swings as a result of her mental impairments, and she ruled out
blood sugar as a cause for Plaintiff’s mood instability.
Tr. 344.
Dr. Jones concluded “[t]he combination of disabling
tendonitis, a concussion, back pain and a personality disorder
will make it formidable, and in my opinion, impossible for her to
have any successful employment.
Due to pain and memory problems,
she has less reserves than ever before to gait [sic] her mood and
24 - OPINION AND ORDER
emotions.”
The ALJ discredited Dr. Jones’s opinion because Dr. Jones is
not an “acceptable medical source” within the meaning of Social
Security regulations, Dr. Jones’s opinion regarding tendinitis
was inconsistent with objective evidence in the medical record,
and Dr. Jones’s opinions regarding Plaintiff’s mental health were
outside of her expertise as a chiropractor.
Tr. 26.
As noted, Dr. Jones, a chiropractor, is not an “acceptable
medical source” within the meaning of 20 C.F.R. § 404.1513(a) and
is considered an “other source” under § 404.1513(d).
The ALJ,
therefore, may discredit Dr. Jones’s opinion if “the ALJ ‘gives
reasons germane to each witness for doing so.’”
See Molina, 674
F.3d at 1111 (quoting Turner, 613 F.3d at 1224.
The lack of objective evidence in the record supporting
Dr. Jones’s opinion is a germane reason for the ALJ to discredit
Dr. Jones’s assessment of Plaintiff’s functioning.
For example,
although Dr. Jones appears to assume that Plaintiff’s arm pain is
caused by tendinitis, there is not any objective evidence in the
record that supports that diagnosis, and, in fact, Dr. Nolan
expressly ruled out tendinitis.
Tr. 330.
Accordingly, on this record the Court concludes the ALJ
provided legally sufficient reasons for discrediting Dr. Jones’s
opinion.
25 - OPINION AND ORDER
E.
Dr. Karlsgodt
Dr. Karlsgodt, a physical therapist, treated Plaintiff from
April 18, 2012, through May 2, 2012.
Tr. 320-22.
Dr. Karlsgodt
stated in a letter to the Oregon Department of Human Services
that:
Ms. Wyss-Bardsley was showing some progress during her
[physical therapy] sessions, but was unable to
continue. Therefore I am unable to advise if she would
continue to show improvement with regular [physical
therapy] care. Based on my assessment of her current
condition, she is unable to tolerate prolonged sitting
and any sort of activity that requires repetitive
motions or any upper body lifting and carrying.
Tr. 323.
Because Dr. Karlsgodt is an “other source” within the
meaning of 20 C.F.R. § 404.1513(d), the ALJ was required to
provide reasons germane to Dr. Karlsgodt’s opinion to discount
her assessment of Plaintiff’s functional limitations.
however, failed to address Dr. Karlsgodt’s opinion.
The ALJ,
Accordingly,
the ALJ failed to provide germane reasons for discounting
Dr. Karlsgodt’s opinion.
Accordingly, on this record the Court concludes the ALJ
erred when he failed to provide legally sufficient reasons for
discrediting Dr. Karlsgodt’s opinion.
Because Dr. Karlsgodt’s
opinion regarding Plaintiff’s sitting limitations were not
included in the ALJ’s assessment of Plaintiff’s RFC, the ALJ’s
error is not harmless.
26 - OPINION AND ORDER
IV.
Lay Testimony
Lay-witness testimony regarding a claimant's symptoms is
competent evidence that the ALJ must consider unless he
“expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so.”
236 F.3d 503, 511 (9th Cir. 2001).
Lewis v. Apfel,
The ALJ’s reasons for
rejecting lay-witness testimony must also be “specific.”
Stout
v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th
Cir. 2006).
Nevertheless, an ALJ is not required to address each
lay-witness statement or testimony on an “individualized,
witness-by-witness-basis.
Rather if the ALJ gives germane
reasons for rejecting testimony by one witness, the ALJ need only
point to those reasons when rejecting similar testimony by a
different witness.”
Molina v. Astrue, 674 F.3d 1104, 1114 (9th
Cir. 2012)(quotation omitted).
Germane reasons for discrediting
a witness’s testimony include inconsistency with the medical
evidence and the fact that the testimony “generally repeat[s]”
the properly discredited testimony of the claimant.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
Bayliss v.
See also Williams
v. Astrue, 493 Fed. App’x 866 (9th Cir. 2012).
Jennifer Siri Rasch, Plaintiff’s former coworker; Tim A.
Huuki, Plaintiff’s roommate; and Joyce L. Wyss, Plaintiff’s
sister-in-law, submitted letters to the Social Security
Administration on Plaintiff’s behalf setting out their
27 - OPINION AND ORDER
observations of Plaintiff’s functionality.
Tr. 249-52.
The ALJ
partially discredited the opinions of Rasch, Huuki, and Wyss
because “none of these individuals are knowledgeable in the
medical and/or vocational fields and thus are unable to render
opinions on how the claimant’s physical activities and mental
impairments impact her overall abilities to perform basic work
activities among various occupations.”
Tr. 27.
The ALJ, however, may not reject lay testimony on the basis
that the lay witnesses lack medical or vocational expertise.
Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009).
Although
there were minor portions of the lay-witness opinions that
discussed Plaintiff’s diagnoses, the primary focus of the laywitness testimony consisted of observations of Plaintiff’s dayto-day functionality.
The ALJ, therefore, did not provide
reasons germane to the lay witnesses for discrediting their
testimony.
Accordingly, on this record the Court concludes the ALJ
erred when he discredited the lay opinions of Rasch, Huuki, and
Wyss.
Because it does not appear the ALJ’s assessment of
Plaintiff’s RFC adequately accounts for the observations of the
lay witnesses, the ALJ’s error was not harmless.
V.
Remand
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
28 - OPINION AND ORDER
court.
Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).
issue turns on the utility of further proceedings.
The
A remand for
an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient
to support the Commissioner’s decision.
Strauss v. Comm’r, 635
F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)).
The court may not award
benefits punitively and must conduct a “credit-as-true” analysis
to determine whether a claimant is disabled under the Act.
Id.
at 1138.
Under the “credit-as-true” doctrine, evidence should be
credited and an immediate award of benefits directed when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are not
any 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 if such evidence were
credited.
Id.
The reviewing court should decline to credit testimony when
“outstanding issues” remain.
(9th Cir. 2010).
Luna v. Astrue, 623 F.3d 1032, 1035
When the reviewing court finds the elements of
the “credit-as-true” rule have been satisfied, however, the court
may only remand for further proceedings if “an evaluation of the
record as a whole creates serious doubt that the claimant is, in
fact, disabled.”
Garrison v. Colvin, 759 F.3d 995, 1021 (9th
29 - OPINION AND ORDER
Cir. 2014).
As noted, the Court concludes the ALJ erred when he
discredited the opinions of Drs. Koslofsky, Barry, and Karlsgodt
as well as the lay testimony of Rasch, Huuki, and Wyss.
The
Court, however, declines to credit these opinions as true because
it is unclear how the opinions would affect the ALJ’s assessment
of Plaintiff’s RFC, and, therefore, outstanding issues remain
that must be resolved before a determination of disability can be
made.
See Strauss, 635 F.3d at 1138.
Moreover, in light of the
ALJ’s adverse credibility finding as to Plaintiff’s testimony and
the fact that many of Plaintiff’s alleged impairments inherently
lack objective medical evidence to support those impairments, the
Court concludes the “record as a whole creates serious doubt that
the claimant is, in fact, disabled.”
See Garrison, 759 F.3d at
1021.
Accordingly, on this record the Court remands this matter to
the Commissioner for further proceedings consistent with this
Opinion and Order.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
30 - OPINION AND ORDER
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 December, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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