Albright v. Commissioner Social Security Administration
OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to Plaintiff is REVERSED and this proceeding is REMANDED for an immediate calculation and payment of benefits. IT IS SO ORDERED. Signed on 6/23/2017 by Judge Malcolm F. Marsh. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KLAYTON V. ALBRIGHT,
COMMISSIONER SOCIAL SECURITY
RICHARD F. MCGINTY
P.O. Box 12806
Salem, OR 97309
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Po1iland, OR 97204-2902
MARTHA A. BODEN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900 M/S221A
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:16-cv-00436-MA
OPINION AND ORDER
Plaintiff Klayton V. Albright seeks judicial review of a decision of the Commissioner of
Social Security denying his claim for Supplemental Security Income ("SSI") disability benefits
pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, I reverse
and remand the Commissioner's decision for an immediate payment ofbeiiefits.
FACTUAL AND PROCEDURAL BACKGROUND
On January 17, 2012, Plaintiff protectively filed an application for benefits, alleging disability
beginning September 4, 1991, due to an inability to concentrate and maintain focus, mood !ability,
and maintain appropriate social standards. Tr. 271. Plaintiffs claim was denied initially and upon
reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ").
An ALJ held ahearing on June 17, 2014, at which Plaintiff appeared with his attorney and testified.
Medical expert William Weiss, Ph.D., testified by telephone, and vocational expert, Richard Hincks,
attended the June 17, 2014 hearing and testified. At that hearing, Plaintiff amended his alleged onset
date to September 4, 2009. The ALJ held a second hearing on October 28, 2014, at which Plaintiff
again testified. On November 14, 2014, the ALJ issued an unfavorable decision. · The Appeals
Council denied Plaintiffs request for review, and therefore, the ALJ's decision became the final
decision of the Commissioner for purposes ofreview.
Born in 1991, Plaintiff was 18 years old the amended alleged onset date, and 20 years old on
the date of the ALJ's decision. Plaintiff has a history of some special education classes and had an
individualized education plan for reading and writing, as well as behavioral and emotional needs,
but graduated with a regular high school diploma. Tr. 299, 308. Plaintiff attended some community
2 - OPINION AND ORDER
college classes, but reported not performing well. Tr. 240. Plaintiff has no past relevant work, has
worked very briefly as a dishwasher and cleaner part-time, Md worked sorting cherries. Tr. 39-41.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowenv. Yuckert,482U.S.137, 140(1987);20C.F.R. §§404.1520,416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner
to show that the claimant can do other work which exists in the national economy. Hill v. Astrue,
698 F.3d 1153, 1161 (9th Cir. 2012).
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
January 17, 2012, the application date. At step two, the ALJ found that Plaintiff had the following
severe impairments: attention deficit hyperactivity disorder ("ADHD") and learning disorder. At
step three, the ALJ found that Plaintiffs impairments, or combination of impairments, did not meet
or medically equal a listed impairment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform a full
range of work at all exertional levels but with additional nonexertional limitations: Plaintiff can
perform "simple, routine tasks with an SVP of 1 or 2; reading is limited to the 4th grade level; and
he can have occasional contact with the public." Tr. 22.
At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 29. At step five,
the ALJ found that considering Plaintiffs age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can
3 - OPINION AND ORDER
perform, including such representative occupations as: lot attendant, laundry sorter, street cleaner
and fruit washer. Accordingly, the ALJ concluded that Plaintiff has not been under a disability under
the Social Security Act from January 17, 2012, the date his SSI application was filed.
ISSUES ON REVIEW
On appeal to this court, Plaintiff contends the following errors were committed: (1) the ALJ
improperly evaluated the opinions of treating physician Randall E. Blome, M.D., examining
psychologist Paul S. Stoltzfus, Psy.D., and testifying medical expert William Weiss, Ph.D.; (2) the
post-hearing evidence from Dr. Freed undermines the ALJ's determination; and (3) the RFC fails
to incorporate all his limitations. The Commissioner argues that the ALJ' s decision is supported by
substantial evidence and is free oflegal error. Alternatively, the Commissioner contends that even
ifthe ALJ erred, Plaintiff has not demonstrated harmful error.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v.
Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
4 - OPINION AND ORDER
Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its
judgment for that of the Commissioner." Edlundv. lY!assanari, 253 F.3d 1152, 1156 (9th Cir. 2001);
Garrison, 759 F.3d at 1010.
The ALJ Erred in Evaluating the Medical Evidence
In general, the opinion of a treating physician is given more weight than the opinion of an
examining physician, and the opinion of an examining physician is afforded more weight than the
opinion of a nonexamining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2016);
Garrison, 759 F.3d at 1012; Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating
physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be
given] controlling weight." Orn, 495 F.3d at 631 (internal quotations omitted) (alterations in
original); 20 C.F.R. § 416.927( c). To reject the uncontradicted opinion of a treating physician, the
ALI must provide "clear and convincing reasons that are supported by substantial evidence." Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
If the treating physician's opinion is contradicted, the ALJ must consider how much weight
it is entitled to considering the factors in 20 C.F.R. § 416.927(c)(2-6). The factors include the length
of the treatment relationship, the frequency of examination, the nature and supportability of the
opinion, and its consistency with other evidence in the record as a whole. 20 C.F.R. § 416.927(c)(26); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is contradicted by another
doctor's opinion, it may be rejected by specific and legitimate reasons. Ghanim, 763 F.3d at 1161.
5 - OPINION AND ORDER
However, "[t]he ALJ need not accept the opinion of any physician, including a treating physician,
ifthat opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
Randall E. Blome, MD.
Plaintiff argues that the ALJ failed to provide specific and legitimate reasons, backed by
substantial evidence, for discounting Dr. Blome's opinion that Plaintiff was unemployable.' Dr.
Blome has been Plaintiffs treating physician since January 2012. Tr. 401. Dr. Blome's treatment
notes indicate that Plaintiff is very personable, but has disorganized thinking. Tr. 401. Dr. Blome
diagnosed ADHD, noted a history of autism, ordered a current mental health evaluation, and
prescribed Vyvanse. Tr. 399-400. In a letter dated May 2, 2014, Dr. Blome indicated that he
diagnosed Plaintiff with narcissistic personality disorder, anxiety, depression, ADHD, and learning
disabilities. Tr. 415. Dr. Blome reported that Plaintiff did poorly in school, was in some special
education classes, and had an IEP. Tr. 415. In the May 2014 letter, Dr. Blome indicated that
Plaintiff has great difficulties with social interactions, violent outbursts, and exhibits extremely poor
judgment. Tr. 415. Dr. Blome opined that Plaintiff is not employable. Dr. Blome noted that
Plaintiff is not dependable, and that he could not perform on a sustained basis in a competitive work
environment. Dr. Blome opined that Plaintiff could handle a sheltered work shop, and would require
extra supervision due to his lack of impulse control and judgment. Tr. 415.
Dr. Blome completed a functional assessment of Plaintiffs work-related mental activities
dated May 2, 2014. Tr. 416-17. In the functional assessment, Dr. Blome opined that Plaintiff was
Dr. Blome's opinion is contradicted by the testifying medical expert, William Weiss,
Ph.D., and nonexamining physicians Bill Hennings, Ph.D., and Paul Rethinger, Ph.D. Tr. 79, 8283, 95, 110.
6 - OPINION AND ORDER
moderately limited in his ability to understand both simple and detailed instructions, and was
severely limited in his ability to maintain attention and concentration for extended periods oftime
and perform within a schedule. Tr. 416. Dr. Blome also opined that Plaintiff was severely limited
in his ability to interact with the public, accept instructions and respond to criticism from
supervisors, get along with co-workers without getting distracted, maintain socially appropriate
behavior, be aware of hazards and take precautions, and set realistic goals. Tr. 417. "Severe" is
defined as not able to perform a designated task or function on a regular, reliable, and sustained
schedule. Tr. 416.
In the decision, the ALJ gave limited weight to Dr. Blame's opinion regarding the severity
of Plaintiff's impairments. Tr. 26. The ALJ's reasoning falls short of specific and legitimate.
First, the ALJ found Dr. Blame's social limitations inconsistent with Plaintiff's testimony.
During the June 2014 hearing, Plaintiff testified that he was employed at Gray and Company sorting
cherries, and that he had been on the job for three days. Tr. 53, 56. At the October 2014 hearing,
Plaintiff testified that he had been fired for showing new workers around, stating that he was told
it was not his job to train new employees. Tr. 40. Plaintiff also stated that his supervisor would
check on him every 20 minutes, and that his co-worker reminded him to get back to work. Tr. 40-41.
In the decision, the ALJ discounted Dr. Blame's opinion that Plaintiff had moderately severe to
severe limitations in social functioning, needed extra supervision and exercised poor judgment
because it was inconsistent with Plaintiff's testimony that he performed his job "without difficulty"
and was fired for being too friendly and showing new employees what to do. Tr. 26. This finding
is not supported by substantial evidence. The record does not disclose how long Plaintiff was
employed sorting cherries; the record contains no earnings information or other specific testimony
7 - OPINION AND ORDER
about Plaintiffs dates of employment. And, Plaintiff contends in his briefing that his employment
lasted only three days, a pointthat is not disputed by the Commissioner. Pl. 's Br. 9-11, ECFNo. 18.
However, the ALJ found that Plaintiff was able to work for several months. Tr. 28. Nevertheless,
contrary to the ALJ' s finding, based on Plaintiffs testimony, Plaintiff was fired to being off-task and
not exercising good judgment, concerns raised by Dr. Blome. Tr. 415-16. Moreover, being
terminated after a brief period of employment does not support a finding that he was employed
"competently" or "without difficulty." And, as the ALJ acknowledged, Plaintiff testified that his
employer checked on him every 20 minutes and his co-worker redirected his attention, again
consistent with Dr. Blome's concerns. Tr. 23. Thus, the ALJ's reasoning does not pass muster.
The ALJ's second rationale similarly fails. Here, the ALJ found Dr. Blome's opinion that
Plaintiff needed extra supervision inconsistent with the objective evidence from Plaintiffs employer
who stated that Plaintiff was "punctual and performed with minimal supervision." Tr. 26, 303.
Here, the information cited by the ALJ is from a Cooperative Disability Investigation ("CDIU")
report, in which an investigator, Special Agent D. Anderson, contacted Plaintiffs former fruitsorting employer. Tr. 303. The employer's representative reported that Plaintiff was a "satisfactory"
employee, and may be contacted for future employment. Tr. 303. As noted above, the record does
not clearly provide Plaintiffs dates of employment or contain any wage history, thus it is not known
whether Plaintiff was employed full or part time. Tr. 53-56; 39-41. Additionally, it is not clear from
this brief notation whether the employer representative actually supervised Plaintiff while on the job.
Tr. 303. Thus, the information from the former employer is not particularly convincing and is not
fully supported by substantial evidence.
8 - OPINION AND ORDER
Furthermore, the ALI' s reliance on this information is selective. Ghanim, 763 F .3d at 1164
(ALJ may not "improperly cherry-pick" evidence to support agency's denial ofbenefits). Special
Agent Anderson also contacted a second employer, the Joel Palmer House Restamant, who reported
that Plaintiff worked at the restaurant only six nights as a dishwasher, was closely supervised, and
was a "marginal" employee. Tr. 303. To be sure, this report is more consistent with other testimony
provided by Plaintiff. At the June 2014 hearing, Plaintiff testified that he was employed washing
dishes for a month, then was let go, and worked in a gun shop for only a day. Tr. 67, 71. Plaintiff
testified that he has been unable to keep a full time job, despite his attempts to do so. Tr. 67-68.
Plaintiff reported to Special Agent Anderson that he was employed for tlu·ee days at a candy shop,
and power-washed pallets one day before quitting. Tr. 302. The ALJ's selective review of
Plaintiffs testimony and Plaintiffs former employers is not supported by substantial evidence when
the record is viewed as a whole, and fails to provide a specific and legitimate basis for discounting
Dr. Blome's opinion. The ALJ has erred.
Additionally, the Court observes that in the decision, the ALJ discounted all medical
evidence and lay testimony with first-hand knowledge of Plaintiffs limitations in favor of
nonexarnining physicians. The ALJ also heavily relied upon a report in the CDIU that Plaintiff has
"excellent recall" when discussing video games, finding that this suggests Plaintiffs memory and
concentration are not significantly limited when discussing anything of interest. However, Plaintiffs
ability to play video games at length and discuss them is not so mentally demanding that any
incosistencies with Dr. Blame's opinion is apparent. See Ponce v. Colvin, No. ED CV 12-1560 JCG,
2014 WL 198712, *2 (C.D. Cal. Jan. 16, 2014) (claimant's ability to play video games was not a
specific and legitimate basis to undermine physician's opinion).
9 - OPINION AND ORDER
Paul S. Stoltzfits, Psy.D.
Dr. Stoltfus performed a neuropsychological evaluation of Plaintiff on August 8, 2011. Tr.
390. Dr. Stoltzfus conducted a clinical interview, reviewed a June 2008 psychoeducational
assessment, and conducted a number of independent tests, including the Millon Clinical Multiaxial
Inventory-III, Trail Making Test, Weschler Adult Intelligence Scale-III edition, select subtests,
Weschler Memory Scale-III, and Wide Range Achievement Test. Tr. 390. During the mental status
examination, Dr. Stoltzfus indicated Plaintiff was independent and punctual, hyperactive and easily
bored, hyper-verbal, off-task and tangential, but friendly, talkative, with an upbeat and positive
mood/affect. Tr. 392. On testing, Dr. Stoltzfus found that Plaintiff tended to minimize his high level
of distractability and poor focus. Tr. 393. Notably, Dr. Stoltzfus indicated that Plaintiffs "selfappraisals were in stark contrast to his presentation during the interview." Tr. 393. Dr. Stoltzfus
noted that Plaintiff gave strong effort, but that Plaintiff was disorganized and his thought process
appeared scattered. Tr. 393. Dr. Stoltzfus diagnosed Plaintiff with ADHD, cognitive disorder NOS,
disorder of written expression, and personality disorder NOS with borderline, paranoid and
narcissistic traits. Tr. 394-95.
Dr. Stoltzfus indicated that testing revealed Plaintiff was of average intelligence, but his
neurocognitive functioning ranged from average to deficit, with Plaintiff perfonning in the borderline
to deficit range for auditory memory, executive functioning, and processing speed. Tr. 393-95. Dr.
Stoltzfus opined that Plaintiff would have difficulty working collaboratively with anyone, he would
need a highly structured environment with clear expectations, instructions would need to be provided
visually and hands on, and he would need an extraordinarily patient employer to ensure commitment
and success on the job. Tr. 395.
10- OPINION AND ORDER
In the decision, the ALJ gave Dr. Stoltfus's opinion "limited weight." Tr. 25. The ALJ
discounted Dr. Stoltzfus's opinion that Plaintiff would have difficulty working collaboratively as
inconsistent with Plaintiffs testimony that he worked with others sorting cherries without difficulty
and was fired for being friendly and showing new employees around the job site. The ALJ also
discounted Dr. Stoltzfus's opinion that Plaintiff has significant limitations in social functioning and
needs an "extraordinarily patient employer" as inconsistent with the report from Plaintiffs employer
that he was punctual and performed with minimal supervision.
Again, the ALJ's rationale falls
short of specific and legitimate when viewing the record as a whole.
First, as detailed above with respect to Dr. Blome, the ALJ's reliance on the employer's
report to Special Agent Anderson that Plaintiff was punctual and performed competently with
minimal supervision is not supported by substantial evidence. As noted above, it is unclear whether
Plaintiffs employment lasted three days or several months, was full or part time, and it is not known
whether the employer representative actually supervised Plaintiff. Additionally, a separate employer
reported to Anderson that under close supervision, Plaintiff was a "marginal" employee. Tr. 303.
The ALJ's selective reliance on only the cherry-sorting employer's statement in the CDIU is not
supported by a fair reading of the record as a whole. Ghanim, 763 F.3d at 1160 (noting court "may
not affirm simply by isolating a specific quantum of supporting evidence") (internal quotations and
Second, the ALJ' s reliance on Plaintiffs testimony when discounting Dr. Stoltzfus' s opinion
is problematic. Dr. Stoltzfus specifically found that Plaintiff's "self-appraisals were in sharp contrast
to his actual presentation during the interview[,]" and that Plaintiff minimized his "high level of
distractibility and poor focus." Tr. 393. Dr. Stoltzfus observed that Plaintiff states he is rarely
11 - OPINION AND ORDER
restless or fidgety, and does not make careless mistakes when bored or doing repetitive work. Tr.
393. During Dr. Stoltzfus' s examination, Plaintiff could not sit still, was hyper-verbal, off task and
tangential, and scattered. Tr. 392. Thus, Plaintiffs own testimony about his performance on the job
must be viewed in light of the record as a whole.
Third, the ALJ's contention the Dr. Stoltzfus's opinion that Plaintiff requires a highly
structured work environment is not supported by objective evidence is likewise insufficient. The
only objective evidence cited by the ALJ is that from the cherry sorting employer, of questionable
value as discussed above. Contrary to the ALJ's finding, Dr. Stoltzfus conducted a battery of
objective tests to support his opinion that Plaintiff needs a highly structured environment with clear
expectations due to his borderline to deficit results in auditory memory, executive functioning, and
processing speed. Tr. 395. Orn, 495 F.3d. at 634-35. Therefore, the Court concludes the ALJ did
not provide specific and legitimate reasons backed by substantial evidence for discounting Dr.
Stoltzfus's opinion. See Garrison, 759 F.3d at 1012.
The Commissioner contends that even if the ALJ erred in failing to incorporate Dr.
Stoltzfus' s opinion that Plaintiff requires a "highly structured work environment" into the RFC, the
error is harmless because the VE identified one job with such a limitation. The Court disagrees.
Even if the Commissioner is correct that the frnit washer job identified by the ALJ at step
five adequately captures the "highly structured work environment" limitation,' it fails to capture
The Commissioner argues that basic unskilled work with an SVP of 1 or 2 requires the
ability to acclimate to changes in a routine setting. See SSR 85-15, available at 1985 WL
56857, *4. At step five, relying on testimony from the VE, the ALJ identified fruit washer,
(Dictionary of Occupational Titles ("DOT") #529.686-030, SVP 1, 105,000 positions nationally,
1,200 positions locally) as a job Plaintiff could perform. The Commissioner argues that this job
could be considered "highly structured" because it requires Plaintiff to "deal with standarilized
situations with occasional or no variables in or from these situations encountered on the job."
12 - OPINION AND ORDER
numerous other limitations identified by Dr. Stoltzfus, including that the job be physically active and
Plaintiffs need for an "extraordinarily patient employer." Tr. 396. See Strickland v. Colvin, No.
3:15-cv-02205-HZ, 2017 WL462637, *7-8 (D. Or. Feb. 2, 2017) (discussing that limitation to highly
structured work environment was not fully incorporated into RFC with normal interaction with
supervisors). Thus, the ALJ's error is harmful.
William Weiss, Ph.D.
The opinion of a nonexamining, testifying medical examiner may serve as substantial
evidence when it is supported by, and consistent with, other evidence in the record. Morgan v.
Comm 'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999); Andrews v. Shala/a, 53 F.3d 1035,
1041 (9th Cir. 1995); see 20 C.F.R. §416.927(c)(4) (ALJ will generally give more weight to opinions
that are "more consistent ... with the record as a whole"). "'The ALJ can meet this burden by
setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating
his interpretation thereof, and making findings."' Morgan, 169 F.3d at 600 (quoting Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)).
The ALJ gave great weight to the opinion of Dr. Weiss, the testifying medical expert. Dr.
Weiss appeared at the June 14, 2014 hearing via telephone. Tr. 45. Dr. Weiss reviewed Plaintiffs
medical record and listened to Plaintiffs hearing testimony. Dr. Weiss diagnosed Plaintiff with
ADHD, a learning disorder of written expression, and narcissistic personality disorder. Tr. 27. He
opined that Plaintiff could perfmm simple, routine, unskilled work at SVP 1 or 2, with reading at
the fourth to sixth grade level and occasional public contact. Tr. 78-79. Dr. Weiss testified that he
disagreed with Dr. Blome' s opinion that Plaintiff is unable to work due to poor social skills and poor
DOT #529.686-030, available at 1991WL674723.
13 - OPINION AND ORDER
judgment. Tr. 24, 78. Dr. Weiss indicated that Dr. Blame's opinion that Plaintiff is unemployable
is inconsistent with Plaintiffs testimony because he was working sorting cherries at the time of the
hearing. Tr. 78. Dr. Weiss also testified that he disagreed with the severity of the limitations
assessed by Drs. Blome and Stoltzfus, and noted that it was possible that Plaintiff had improved.
Tr. 24, 82. Dr. Weiss relied upon Plaintiffs testimony and Plaintiffs ability to work at least part
time to discount the opinions of Dr. Blome and Stoltzfus.
Plaintiff argues that the ALJ erred in giving Dr. Weiss's opinion great weight, contending
there is no evidence of medical improvement, and that Plaintiffs brief employment sorting cherries
is not sufficient evidence to undermine Drs. Blome and Stoltzfus's opinions. Plaintiff is correct.
First, contrary to the ALJ's decision, the opinions of Drs. Blome and Stoltzfus are not
sufficiently rebutted by Dr. Weiss. The medical expert's paper review of their opinions and
treatment notes fails to overcome the significant weight to which those opinions are entitled. As
detailed at length above, the ALJ' s selective reliance on Plaintiffs brief employment sorting cherries
and the employer's report of Plaintiffs performance is not supported by substantial evidence when
viewing the record as a whole. Second, Dr. Weiss's contention that Plaintiffs symptoms have
improved is not fully supported by other objective evidence. At the hearing, Dr. Weiss based his
finding of improvement on the fact that Plaintiff worked sorting cherries. Working for even up to
three months may be considered an unsuccessful work attempt, and the ALJ found Plaintiff had no
history of significant gainful activity. Tr. 84. Gatliffv. Comm 'r Soc. Sec. Admin., 172 F.3d 690, 694
(9th Cir. 1999) (noting that gainful activity requires the ability to hold a job for a significant period
of time and that two-month employment duration may be an unsuccessful work attempt); accord
Ernst v. Colvin, 601 F. App'x 474, 475 (9th Cir. 2015) (ALJ erred in evaluating evidence that
14 - OPINION AND ORDER
claimant has never held a job on a sustained basis outside sheltered envirorunent). Thus, the ALJ's
rationale in crediting Dr. Weiss's opinion over that ofDrs. Blome and Stoltzfus is not supported by
substantial evidence. See Attmore v. Colvin, 827 F.3d 872, 877-78 (9th Cir. 2016) (holding that ALJ
may not cherry-pick evidence that supports improvement, especially where symptoms wax and
wane); Ghanim, 759 F.3d 1161-62 (holding that occasional observations of improvement must be
viewed in the context of the overall diagnostic picture).
The opinions of Drs. Blome and Stoltzfus are further bolstered by the by the February 2015
psychological evaluation conducted by David M. Freed, Ph.D., submitted to the Appeals Council.
See Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (new evidence
submitted to and considered by the Appeals Council is part of the administrative record). Dr. Freed
conducted a clinical interview, reviewed the record, and conducted numerous objective tests,
including the Folstein Mini Mental State Exam, Mental Control, Digit Span, and Spatial Span
subtests, Wide Range Achievement Test, Weschler Abbreviate Scale of Intelligence, Word List
Memory Test, Boston Naming Test, among others. Tr. 441. Dr. Freed observed that Plaintiff was
animated, but socially inappropriate, and noted that his speech was fluent and well-articulated. Tr.
442. During testing, Dr. Freed indicated that Plaintiff scored a 29/30 on the MMSE, could name the
days of the week, and count to 20, but could not identify the months of the year. Tr. 442. Dr. Freed
noted that there was no indication of exaggeration or malingering, Plaintiff had a Full Scale IQ of
100, had academic scores between fifth and ninth grade, and had some difficulty with attention and
concentration. Tr. 442.
Based on the results of the evaluation and the Adult Asperger Assessment, Dr. Freed
diagnosed Plaintiffwith Autism Spectrum Disorder (Asperger's), Depressive Disorder NOS, Anxiety
15 - OPINION AND ORDER
Disorder NOS, ADHD, and Disorder of Written Expression. Tr. 443. Dr. Freed opined that due to
Plaintiffs problems with social relationships, Plaintiff would have difficulty sustaining an ordinary
daily routine-or working in proximity to other people, and that due to his developmental disability,
Plaintiff would struggle interacting appropriately with co-workers, supervisors, and the general
public. Tr. 444.
Dr. Freed also completed a Functional Assessment of Work-Related Mental Activities. Tr.
447-48. Dr. Freed indicated that Plaintiff has moderate difficulty understanding, remembering, and
carrying out detailed instructions, moderate difficulties maintaining attention and concentration for
extended periods of time, sustaining an ordinary routine without special supervision, work in
proximity to others without being distracted, and getting along with coworkers without distracting
them. Tr. 447-48. Moderate limitations were defined as noticeable difficulty performing the
designated task, or being off task for 11 to 20 percent of each work day or work week. Tr. 447.
Although Dr. Freed's assessed limitations are not as severe as those opined by Drs. Blome
and Stoltzfus, the limitations are consistent with disability. At the June 2014 hearing, the Vocational
Expert was asked: "[I] a "person's off task 20 percent or more of the workday, work week, work
month, are they employable long term in the national economy?" Tr. 86. The Vocational Expert
responded that they are not competitively employable. Tr. 86. Thus, based on the record as a whole,
including the newly submitted evidence, the ALJ's findings in crediting Dr. Weiss's opinion over
those ofDrs. Blome and Stoltzfus are not supported by substantial evidence. The ALJ has erred.
RFC and Vocational Testimony
Limitations supported by substantial evidence must be incorporated into the RFC and, by
extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d
16- OPINION AND ORDER
1157, 1163-65 (9th Cir. 2001). If the RFC fails to include all of Plaintiffs limitations, then the
hypothetical is incomplete and the vocational expert's testimony holds no evidentiaryvalue. Gallant
v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). Because the Court has identified an error in the
ALJ's evaluation of the medical evidence that may impact the RFC, the ALJ could not rely upon the
VE's testimony. Id.
After finding the ALJ erred, the Court must determine whether to remand Plaintiffs case to
the agency for payment of benefits or for additional investigation or explanation. Although a court
should generally remand to the agency for additional investigation or explanation, the court has
discretion to remand for immediate payment of benefits. Treichler v. Comm 'r Soc. Sec. Admin., 775
F.3d 1090, 1099-1100 (9th Cir. 2014).
The Ninth Circuit precludes the district court from
remanding a case for an award of benefits unless certain prerequisites are met. Burrell v. Colvin, 775
F.3d 1133, 1141 (9th Cir. 2014). The court must determine ifthe ALJ made a legal error, such as
failing to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or
medical opinion. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Next, the court must
review the record as a whole and determine whether it is fully developed and free of conflicts and
ambiguities, and "all essential factual issues have been resolved." Treichler, 775 F.3d at 1101.
Finally, the court must consider whether "the ALJ would be required to find the claimant disabled
on remand" if the improperly discredited evidence were credited as true. Garrison, 759 F.3d at
1020; Dominguez, 808 F.3d at 407. If the above are satisfied, the court may exercise its discretion
to remand the case for an award of benefits. Dominguez, 808 F.3d at 407.
17 - OPINION AND ORDER
Here, the first portion of the test is satisfied because the ALJ has failed to provide legally
sufficient reasons for providing only limited weight to the opinions of Plaintiffs treating physician
Dr. Blome, and examining physician Dr. Stoltzfus. Additionally, the Court finds the second and
third portions of the test satisfied. There are no outstanding factual issues that warrant further
development. Dr. Blome opined that Plaintiff is unemployable, could not perform on a sustained
basis, would require extra supervision, but could handle a sheltered work shop. Tr. 415. Dr.
Stoltzfus opined that Plaintiff would have significant difficulty working collaboratively with anyone,
would need to have a highly structured work environment with clear expectations that allows for a
high level of physical activity with hands-on instruction, and would require an extraordinarily patient
employer. Tr. 395-96. Likewise, Dr Freed indicated that Plaintiff would likely be off task up to 20
percent of the work day or work week, and that his functioning has been consistent since September
4, 2009, the alleged onset date. Tr. 439. See Fuller v. Colvin, 164 F.Supp.3d 1266, 1275 (D. Or.
2016) (determining that a claimant who is off task 20 percent of the time cannot maintain
competitive employment). The Vocational Expert testified that if a person is off task for 20 percent
of the work day or work week is unable to sustain competitive employment. Tr. 86. Contrary to the
Commissioner's contention, the CDIU report does not raise serious doubts that Plaintiff is disabled.
As discussed above, the ALJ's review of the CDTIJ report is selective, and is not inconsistent with
the observations of Drs. Blome, Stoltzfus, and Freed, who also found Plaintiff to be pleasant and
friendly, but tangential and socially inappropriate, and who determined based on clinical
observations and testing that Plaintiff has disabling limitations. Compare Tr. 300 with 395, 415,
18 - OPINION AND ORDER
Thus, when the opinions ofDrs. Blome, Stotlzfus, and Freed are credited as true, it is clear
from the record that the Commissioner would be required to find Plaintiff disabled. Brewes, 682
F.3d at 1164-65. Finally, having carefully reviewed the entire record, I have no serious doubt that
Plaintiff is disabled.
For the reasons stated above, the Commissioner's final decision denying benefits to Plaintiff
is REVERSED and this proceeding is REMANDED for an immediate calculation and payment of
IT IS SO ORDERED.
DATED this :l.$ day of JUNE, 2017.
Malcolm F. Marsh
United States District Judge
19 - OPINION AND ORDER
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