Castro v. Commissioner Social Security Administration

Filing 16

OPINION and ORDER - The Commissioner's decision is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. IT IS SO ORDERED. DATED this 10th day of July 2017, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

RAIMUNDO AMBROS CASTRO,
Plaintiff,

Case No.: 3:16-CV-00726-A C
OPINION AND ORDER

v.
NANCY BERRYHILL,
Commissioner of Social Security,
Defendant.
A COSTA, Magistrate Judge:
Raimundo Castro ("plaintiff") seeks judicial review of a final decision by the Commissioner of
Social Security ("Commissioner") denying his applications for Title II Disability Insurance Benefits ("DIB")
and Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act"). 1 All parties

1

Plaintiff filed two opening briefs, ECF Nos. 12 and 13. After review, this court finds the
substantive arguments appear identical. In this Opinion and Order the court will refer to ECF No. 13,
Plaintiffs Memorandum in Support of the Petition for Review filed on November 10, 2016, as "Pl. 's
Page 1 - OPINION AND ORDER

have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with
Fed. R. Civ.P. 73 and28U.S.C. § 636(c). Basedonacarefulreviewoftherecord, the Commissioner's
decision is affirmed in part, reversed in part, and remanded for fmiher administrative proceedings.

Procedural Background
On October 18, 2012, plaintiff applied for DIB, and on November 16, 2012, plaintiff applied for
SSL (Tr. 200-15.) In both applications plaintiff alleges disability as ofAugust 1, 2012. (Tr. 200, 207.)
The Commissioner denied his applications initially and upon reconsideration. (Tr. 74-87, 92-127.) On
October 4, 2013, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an
administrative hearing was held on June24, 2014. (Tr. 39-65, 154-55.) After the hearing, theALJ issued
an unfavorable decision on September 15, 2014, finding plaintiffnot disabled. (Tr. 19-32.) The Appeals
Council denied plaintiff's subsequent request for review, makingthe ALJ's decision final. (Tr. 1-4.) This
appeal followed. Plaintiff argues that the ALJ erred at step two by: (1) failing to provide a clear and
convincing reason to reject his subjective symptom testimony; and (2) improperly evaluating the medical
opinions of Dr. Drake Duane, Dr. Shannon Tromp, Dr. Aaron Bowen, non-examining state agency
psychologists, and Mr. Thomas Kruzel.

Factual Background
Born on January23, 1964, plaintiff was 48 years old on the alleged onset date of disability and 50
years old at the time of the hearing. (Tr. 44.) He completed his GED and has past work as a route
delivery driver, a motor coach driver, an alarm installer and troubleshooter, and a mechanical

Opening Br."
Page 2 - OPINION AND ORDER

repairer/worker. (Tr. 61-62, 254.) Plaintiff alleges disability due to depression, attention deficit disorder
("ADD"), and osteoarthritis. (Tr. 74, 81, 92, 110.)

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Page 3 - OPINION AND ORDER

Standard of Review
The comt must affitm the Commissioner's decision ifit is based on proper legal standards and the
findings are suppo1ted by substantial evidence in the record. Hammockv. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). Substantial evidence is "more than amere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to suppo1t a conclusion." Richardson v. Perales, 402 U.S.
3 89, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that
supports and detracts from the [Commissioner'sJconclusions." Martinez v. Heckler, 807 F.2d 771, 772
(9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may
not substitute [its]judgmentforthe ALJ's." Massachiv. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(citation omitted).
The initial burden ofproofrests upon the claimant to establish disability. Howardv. Heckler, 782
F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to
engage in any substantial gainful activity by reason of any medically dete1minable physical or mental
impairment which can be expected ... to last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the
Commissionerdetetmines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S.
at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). Ifso, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment
orcombinationofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c).
Page 4 - OPINION AND ORDER

If the claimant does not have a medically determinable, severe impairment, he is not disabled.
At step three, the Commissioner detetmines whether the claimant's impairments, either singly or
in combination, meet or equal "one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20
C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively disabled; if not, the
Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past relevant
work." 20 C.F.R. §§ 404.1520(f), 416.920(f). Ifthe claimant can work, he is not disabled; if he cannot
perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must
establish that the claimant can perform other work existing in significant numbers in the national or local
economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 4 l 6.920(g). If the Commissioner
meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

The ALJ's Findings
At step one of the five-step process outlined above, the ALJ found that plaintiff had not engaged
in substantial gainful activity since the alleged onset date. (Tr. 21.) At step two, theALJ determined that
plaintiff had the following medical detenninable impairments: "hypertension, hypercholesterolemia,
diabetes, right shoulder tendinitis, obesity, speech fluency disorder-stutter, mood disorder and attention
deficit disorder." (Id.) At the same step the ALJ found that plaintiff"does not have an impairment or
combination ofimpairments that has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a
severe impairment or combination ofimpairments." (Id.) Based on this finding, the ALJ detetmined that
Page 5 - OPINION AND ORDER

plaintiff was not disabled within the meaning ofthe Act. (Tr. 29.) The ALJ did not proceed to step three.

Discussion
Plaintiff argues thatthe ALJ eJTed at step two by: (I) failing to provide a clear and convincing
reason to reject his subjective symptom testimony, and (2) failing to reasonably evaluate the medical
opinions in the record. (Pl.'s Opening Br. 12-26.)2

1

Plaintiffs Symptom Testimony
Plaintiff argues the ALJ failed to provide a clear and convincing reason to reject his symptom

testimony. (Pl.'s Opening Br. 22-26, Pl.'s Reply Br. 2-3.)
If"there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons for doing so."'

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chafer, 80 F.3d 1273,
1281, 1283-84 (9th Cir. 1996)). A general assertion thatthe claimant is not credible is insufficient; the ALJ
must "state which ... testimony is not credible and what evidence suggests the complaints are not credible."

Dodrill v. Shala/a, 12 F Jd 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific
to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony."

Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
Examples of clear and convincing reasons include conflicting medical evidence, effective medical
treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his

2

As the Commissioner notes, although plaintiff alleges disability due to physical and mental
impairments, he challenges only the ALJ' s findings regarding his mental impairments on appeal. Def.
Br. 5. Because plaintiff makes no argument concerning the severity of his physical impairments, the
court limits its discussion to the mental impairments at issue.
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testimony and his conduct, daily activities inconsistent with the alleged symptoms, a sparse work history,
testimony that is vague or less than candid, and testimony from physicians and third parties about the nature,
severity and effect of the symptoms complained of. Tommasetti, 533 F.3d at 1040; Lingenfelter v.
Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007);Lightv. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.

1997).
The ALJ found Dr. Bowen's "diagnosis ofmalingering to be persuasive evidence ofthe claimant's
lack of credibility regarding his allegations." (Tr. 30.) Evidence of malingering is sufficient to suppo1t a
negative credibility finding. See Benton ex rel. Benton v. Barnhart, 331F.3d1030, 1040-41 (9th Cir.
2003) (an ALJ can reject plaintiffs testimony either through evidence ofmalingering or expressing clear
and convincing reasons for doing so). Plaintiff argues the ALJ "did not accept this finding ofmalingering,"
and was still required to give a clear and convincing reason for discrediting his symptom testimony. (Pl. 's
Reply Br. 2.) The court disagrees, finding the ALJ did accept Dr. Bowen's finding of malingering.
However, even if the ALJ failed to accept Dr. Bowen's finding, this coutt finds no eirnr because the ALJ
providednUlllerous clear and convincing reasons for discrediting plaintiffs subjective symptom testimony.
Here, the ALJ found plaintiffs statements concerning the "intensity, persistence and limiting effects
of' plaintiffs symptoms "not entirely credible" because: (1) plaintiffgave inconsistent statements concerning
his alleged impairments; (2) plaintiffs impairments were stable on medication; (3) there was a lack of
medical evidence to suppmt plaintiffs allegations; (4) plaintiffs activities of daily living were inconsistent
with his alleged physical and inental symptoms; (5) plaintiff owed back taxes andhad a lien placed on his
checking account; (6) plaintiff left his job for reasons unrelated to his disability, and (7) plaintiff had an
"unpersuasive appearance and demeanor" at the ALJ hearing. (Tr. 23-32.)
Page 7 - OPINION AND ORDER

A.

Inconsistent Statements Concerning Alleged Impairments

First, the ALJ discredited plaintiff's symptom testimony because she found he gave "inconsistent
statements regarding his stutter," noting that despite plaintiffs claims the stutter "does not limit him." (Tr.
23.) Plaintiffs inconsistent statements are a clear and convincing reason for rejecting his subjective
symptom testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (inconsistencies
between a plaintiff's symptom testimony and the medical record can serve as a clear and convincing reason
to discredit a plaintiffs symptom testimony). The record supports the ALJ' s findings, because some
medical providers noted plaintiff's stutter caused difficulties with work, while others noted no stutter at all.
(See Tr. 408, 445, 479, 486, 493-94, 514, 581, 599-600, 610-11, 637, 639, 646, 665, 672, 678, 684.)

This inconsistency is a clear and convincing reason for discrediting plaintiffs symptom testimony.
B.

Impairments Stable on Medication

Next, the ALJ discredited plaintiff's subjective symptom testimony because she found plaintiff's
mental impairments were "stable on medications." (Tr. 23.) The ALJ referenced progress notes from
September 19, 2012 where Dr. Drake Duane wrote plaintiff's oral verbal fluency was improved. (Tr. 25.)
"Impairments that can be controlled effectively with medication are not disabling." Warre v. Comm 'r of
Soc. Sec. Adm in., 4 39 F.3d 1001, 1006 (9th Cir. 2006) (citations omitted). Indeed, the medical record

reflects plaintiff showed improvement in his speech dsyfluency while taking medication. (Tr. 474.)
Although Dr. Duane did note on September 19, 2012, that plaintiff's ADD was only "partially repaired,"
and medication was "not effective enough to improve fluency or his behavioral management," he later
found, on April 7, 2014, that plaintiffs verbal fluency had improved again with medication. (Tr. 474, 665.)
Additionally, plaintiff testified at the June 24, 2014 hearing that he would not be able to function without
Page 8 - OPINION AND ORDER

his medication. (Tr. 50.) The couit finds this evidence supports the ALJ' s finding that plaintiffs mental
impairments were controlled by medication, and that this is a second clear and convincing reason for
rejecting plaintiffs subjective symptom testimony.
C.

Lack ofMedical Evidence

Next, the ALJ essentially found there was a lack ofmedical evidence to support plaintiff's alleged
mental impainnents, specifically noting that plaintiff"received infrequent treatment since 2002" for his mental
health symptom complaints and had "no history of psychiatric hospitalization" for his mental health
impai:tments. (Tr. 23.) Additionally, she noted that although plaintiff described a "hist01y of seizure-like
activities" he was never diagnosed or treated for a "f01mal seizure disorder." (Id.) "Although lack of
medical evidence cannot form the sole basis for discrediting pain testimony, it is a factor that the ALJ can
consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Here, an independent review of the record supports at least one of the ALJ' s findings. Although
plaintiffreceived only infrequenttreatment for his mental health symptoms since 2002, a Januaiy 2015 letter
from Dr. Duane explained the inconsistency oftreatment was "pait ofthe current regulations for managing
patients receiving medications for attention disorder in the state of Arizona, and is commonplace throughout
the United States." (Tr. 513-14, 567-68, 597-616, 661-73, 706.) "[A]lthoughaconservativecourse of
treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the
claimai1t' s credibility where the claimant has a good reason for not seeking more aggressive treatment."
Carmickle v. Comm 'r, 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Orn v. Astrue, 495 F.3d 625, 638

(9th Cir. 2007)). The comt rejects this reason for discrediting plaintiffs testimony.
The record does show, however, that plaintiffhad no psychiatric hospitalization or diagnosis of a
Page 9 - OPINION AND ORDER

formal seizure disorder. Despite the previously discussed error in the ALJ' s findings, the error is harmless
because the ALJ provided another clear and convincing reasons to discredit plaintiff's symptom testimony.

See Batson v. Comm 'r, 359F.3d1190, 1197 (9th Cir. 2004) (theALJ's overall credibility decision may
be upheld even if not all ofthe ALJ's reasons forrejectingthe claimant's testimony are upheld). Thus, there
is no en-or.
D.

Activities of Daily Living

Next, the ALJ discredited plaintiff because she found his activities ofdaily living were inconsistent
with his allegations of disability. (Tr. 23 .) "In reaching a credibility dete1mination, anALJ may weigh
consistencies between the claimant's testimony and his or her conduct, daily activities, and work record,
among other factors." Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009). The ALJ found plaintiff was
relatively active in his activities of daily living, noting his ability to volunteer up to ten hours a day with St.
Vincent de Paul, living alone, driving independently, and "assist[ing] an elderly friend with medical
appointment transportation and other needs." (Tr. 23 .) The ALJ also noted that plaintiffs reports to Dr.
Austin included that he was independent in "managing his pape1work, and paying bills," was "spending tinie
atthe libraiy researching information, and stated he was engaged in a legal complaint against Walt Disney
World for wrongful termination." (Tr. 24.) Plaintiff also reported frequently using the hltemet, reading,
talking with friends over the phone, and attending church services, which the ALJ found was "inconsistent
with his alleged limitations in memory and concentration." (Id.) Finally, the ALJ found plaintiffreported
to Dr. Tromp thathe was "reading and trying to learn as much as possible," which the ALJ found was
"inconsistent with his reported difficulties concentrating." (Tr. 26.)
The ALJ's findings regarding plaintiff's activities of daily living are fully supported by the record.
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Plaintiff lived independently, assisted an elderly friend, attended church, read and researched at the librruy,
volunteered at St. Vincent de Paul, and was filing a lawsuit against Walt Disney World. (See Tr. 264, 268,
308-10,324-28,333-356,370,374-75,378,385-88,394-95,444,447,464,475,479,482,651,662,
665, 676-77 .) The ALJ reasonably found plaintiffs activities of daily living were inconsistent with his
alleged disability allegation, and thus was another clear and convincing reason for discrediting plaintiffs
symptom testimony.

E.

Plaintiff's Back Taxes and Lien Placed on Checking Account

Next, the ALJ found plaintiffs reports that he owed back taxes to the state and had a lien placed
on his checking account were "matters which do not bolster his credibility." (Tr. 26.) The court rejects
this reason for discrediting plaintiffs symptom testimony. SeeAlt01fer v. Colvin, No. 3: 14-cv-O 1933-HZ,
2015 WL 9255544, at *8 (D. Or. Dec. 18, 2015); Ratto v. Secy, 839 F. Supp. 1415, 1428-29 (D. Or.
1993) (plaintiffs motive of pecuniary gain is an improper basis on which to determine that subjective
complaints are not credible.)

F

Leaving His Job for Reasons Unrelated to Disability

Next, the ALJ found plaintiff stopped working forreasons unrelated to his disability, noting that
plaintiff"told Dr. Tromp that he last worked in September 2012, and that job ended when that company
went out ofbusiness." (Tr. 27.) The ALJ found this showed plaintiff"stopped working for non-medical
reasons, and that he would have been able to continue working despite his alleged impaitments and
associated restrictions." (Id.) See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (claimant's
pain complaints were not credible because he reported at the administrative hearing, and also to his
doctors, that he left his job because he was laid off, not because he was injured.) The court fmds the ALJ' s
Page 11 - OPlNlON AND ORDER

findings were supported by the record and this is another clear and convincing reason for discrediting
plaintiff's subjective symptom testimony.
G.

Unpersuasive Appearance and Demeanor at ALJ Hearing

Finally, the ALJ discredited plaintiffs symptom testimony based on the plaintiffs "generally
unpersuasive appearance and demeanor while testifying at the hearing." (Tr. 32.) The ALJ wrote that
plaintiffs "stutter was intermittent, minimal and mild, at best," but did note that "this observation is only one
among many being relied on in reaching a conclusion regarding the credibility ofthe claimant's allegations."
(Id.) The practice of"sit and squitmjurisprudence" is generally disfavored, and "may not form the sole

basis for discrediting a claimant's testimony." See Perminter v. Heckler, 765 F .2d 870, 872 (9th Cir.
1985); Orn, 495 F.3d at 639. However, the "inclusion ofthe ALJ's personal observations does not render
the decision improper." Verduzco v. Apfel, 188F.3d1087, 1090 (9th Cir. 1999). TheALJ's personal
observations are valid when the claitnant manifests symptoms inconsistent with the medical evidence ofhis
testimony. Id.
The ALJ' s personal observations ofplaintiff are valid because they show symptoms inconsistent
with more severe stuttering described by plaintiff. Therefore, the comi finds this to be a clear and
convincing reason to discredit plaintiff.
Although the court does not find all of the reasons offered by the ALJ to be clear and convincing
reasons for rejecting plaintiffs symptom testimony, these eirnrs are harmless because the ALJ provided
at least one clear and convincing reasons to discredit plaintiffs symptom testimony. See Batson, 359 F.3d
at 1197 (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons for
rejecting the claimant's testimony are upheld.) In sum, the ALJ provided a clear and convincing reason for
Page 12 - OPINION AND ORDER

discrediting plaintiffs symptom testimony concerning the severity of his symptoms. There is no etTor.
IL

Medical Opinion Evidence
Next, plaintiff argues the ALJ etTed when evaluating the medical opinion evidence of Dr. Dralce

Duane, Dr. Shannon Tromp, Dr. Aaron Bowen, the non-examining state agency psychologists, and Mr.
Thomas Kmzel. (Pl. 's Br. 12-22.) Specifically, plaintiff argues thatthe ALJ etTed by: (1) discrediting the
medical opinions of Dr. Duane, Dr. Tromp, and Mr. Kruzel, and (2) giving "significant weight" to the
medical opinions of Dr. Bowen and the non-examining state agency psychologists. (Id.) The court
addresses each of plaintiffs arguments in turn.

A.

Acceptable Medical Opinions-Treating, Examining, and Non-Examining Physicians
1.

Dr. Drake Duane, treating neuropsychiatrist

First, plaintiff argues the ALJ etTed by only giving "little weight" to the medical opinions oftreating
neuropsychiatrist, Dr. Drake Duane. (Pl.'s Opening Br. 14.)
"The ALJ is responsible for resolving conflicts in the medical record." Carmickle, 533 F.3d at
1164. "As a general rule, more weight should be given to the opinion of a treating source than to the
opinion of doctors who do nottreattheclaimant[.]" Turnerv. Comm 'r, 613F.3d1217, 1222 (9th Cir.
2010). An ALJ may reject the uncontradicted medical opinion of a treating or examining physician only
for "clear and convincing" reasons suppmted by substantial evidence in the record. Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 821, 830-31 (9th Cir. 1995)).
An ALJ may reject the contradicted opinion of a treating or examining doctor by providing "specific and
legitimate reasons that are supported by substantial evidence." Id.
Dr. Duane began treating plaintiff in 2002 for attention deficit disorder ("ADD"), reactive
Page 13 - OPINION AND ORDER

depression, and developmental and language dysfluency. (Tr. 598, 600.) Plaintiff continued to receive
treatment from Dr. Duane over the years, typically having appointments every six to twelve months. (Tr.
567-68, 597-616, 661-73, 705-07.) On September 19, 2012, Dr. Duane noted that plaintiff had an
improved Letter Cancellation score with only "l error in the left hemi space," and a low GAF score of 60,
which was based on plaintiffs "recu11'ent depression." (Tr. 4 74.) Overall, he opined that plaintiff"is now
impaired sufficiently that he should be considered disabled to qualify for benefits under Social Security
Disability." (Id.) On October 4, 2012, Dr. Duane wrote a letter on plaintiffs behalf, noting his low GAF
score, high Hamilton Depression Rating Scale score, and opined thatplaintiff"is conshued as disabled for
employment." (Tr. 568.)
On May 13, 2013, Dr. Duane completed a Psychiatric/Psychological Impairment Questionnaire.
(Tr. 609-16.) He diagnosed plaintiff with ADD, developmental and language disorder, and reactive
depression. (Tr. 609.) He noted plaintiff had poor memory, sleep disturbance, mood disturbance,
anhedonia or pervasive loss of interest, difficulty thinking or concentt·ating, decreased energy, and dysfluent
speech. (Tr. 610.) He assessed marked limitations in plaintiffs ability to maintain attention and
concentration for long periods oftime, mild limitations in his ability to understand and remember one or two
step instructions, moderate limitations in his ability to carry out detailed instructions, and moderate
limitations in his ability to interact appropriately with the public. (Tr. 612-13 .) Dr. Duane overall found
plaintiff would be absent from work about two to three times per month. (Tr. 616.)
On April 7, 2014, Dr. Duane's treatment notes stated plaintiffwas volunteering at St. Vincent de
Paul. (Tr. 665.) He assessed a GAF score of50 and a Hamilton Depression Scale score of23. (Id.)
He also found plaintiffhad a high error rate on the Letter Cancellation test and was advised to continue on
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his medications, which included Ritalin LA and Piracetam. (Id.) On May I, 2014, Dr. Duane wrote
another letter on plaintiffs behalf noting thathe had seen plaintiff every six-to-twelve months since July
2002, and found he "was not responding to treatment as well as originally predicted." (Tr. 672.) He
opined plaintiff has "positive clinical findings of sleep and mood disturbance, poor memory, decreased
energy, anhedonia, difficultythinldng or concentrating, oral language interruptions, and despondency," and
"[h]is primary symptoms include poor concentration, impaired speech fluency, and depression." (Id.) Dr.
Duane opined that plaintiff was "markedly limited in his ability to maintain attention and concentration for
extended periods oftime, due to his attention deficit diagnosis," would have difficulties related to his verbal
dysfluency, and his "pain, fatigue, and other symptoms" would "regularly interfere with his attention and
concentration." (Tr. 672-73.)
Here, the ALJ gave "little weight" to Dr. Duane's opinions finding "the greaterobjective record fails
to support the finding that the claimant has moderate mental limitations, and his assertion that the claimant
is disabled addresses an issue reserved to the Commissioner." (Tr. 28.) Next, the ALJ noted that Dr.
Duane saw plaintiff every six to twelve months and the "infrequency of his direct observation, care and
treatment" ofplaintiffmade his opinion "less reliable." (Id.) Finally, the ALJ wrote Dr. Duane "provided
no specific work limitations and merely checked boxes on the form," and that "[h]is opinion otherwise
provides no explanation for his assessed limitations." (Tr. 29.)
The ALJ was required to give a specific and legitimate reason for discrediting Dr. Duane's opinion
because it was inconsistent with theopinionofDr. Aaron Bowen, who found plaintiffwas malingering. (Tr.
640-53.) See Bayliss, 427 F.3d atl216 (the contradicted opinion of a treating or examining physician can
be rejected with specific and legitimate reasons that are supported by substantial evidence). First, the ALJ
Page 15 - OPINION AND ORDER

reasonably rejected Dr. Duane's assertion that plaintiffwas "disabled" noting that this issue was "reserved
to the Commissioner." (Tr. 28.) "The law reserves the disability dete1mination to the Commissioner."

McLeodv. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). However, the ALJ must address theremaining
parts of a doctor's opinion and provide a legally sufficient reason for discrediting the doctor's medical
opinion. See Schlegal v. Colvin, 1:13-cv-00517-KI ,2014 WL 1386349, at *4 (D. Or. April 9, 2014).
1bis cornt finds ths ALJ erred in discrediting the remaining portion of Dr. Duane's medical opinion
by failing to provide specific and legitimate reasons supported by substantial evidence. The ALJ noted "the
greater objective record fails to support the finding that claimant has moderate mental limitations," but failed
to discuss what specific medical evidence she was relying on when making this conclusion. (Tr. 30.)
Because the cornt cannot infer what specific objective evidence the ALJ was referencing this court finds
the ALJ erred.
Next, this court finds Dr. Duane's infrequent treatment was not a specific and legitimate reason for
discrediting his medical opinion. On January 19, 2015, Dr. Duane submitted a letter explaining the
infrequency of his treatment was based upon "crnTent regulations for managing patients receiving
medications for attention disorder." (Tr. 706.) Although length of treatment and the frequency of
examination are evaluated when weighing the medical opinions of treating physicians, Dr. Duane's
infrequent treatment ofplaintiff was clearly explained; therefore, the court finds the infrequency ofDr.
Duane's treatment is not a specific and legitimate reason for discrediting his medical opinion. 20 C.F.R.

§§ 404. 1527(c)(2)(i-ii), 416. 927( c)(2)(i-ii).
Finally, the ALJ' s finding that Dr. Duane "merely checked boxes on the form" and "provides no
explanation for his assessed limitations" is not supported by the evidence. (Tr. 29.) An ALJ may
Page 16- OPINION AND ORDER

permissibly reject "check-off reports" when they"do not contain any explanation of the bases of their
conclusions." Crane v. Shalala, 76 F.3d 251 (9th Cir. 1996). However, if a check-off questionnaire is
"based on significant experience ... and supported by numerous records[, it is] entitled to weight than an
othe1wise unsupported and unexplained check-box form would not merit." Garrisonv. Colvin, 759 F.3d
995, 1013 (9th Cir. 2014). This court finds the ALJ' s conclusion that Dr. Duane provided no explanation
for his assessed limitations ofplaintiffin the psychiatric and psychological impairment form he completed
on May 13, 2013 is not persuasive. Dr. Duane treated plaintiff continuously since 2002 and medical
evidence ofrecord shows he pe1formed consistent testing ofplaintiffto evaluate his mental abilities. (Tr.
567-68, 597-616, 661-73, 705-07.)
Overall, the court finds the ALJ reasonably discredited Dr. Duane's opinion that plaintiff was
"disabled," but failed to provide a specific and legitimate reason for rejecting the remainder for Dr. Duane's
medical opinion. This is harmful en-or.
B.

Dr. Shannon Tromp, Examining Psychologist

Next, plaintiff argues the ALJ failed to provide a legally sufficient reason to reject the medical
opinion of examining psychologist, Dr. Shannon Tromp. (Pl. 's Opening Br. 21-22.)
On May 22, 2014, Dr. Tromp performed a clinical interview ofplaintiff and completed a Mental
Impaiiment Questionnaire. (Tr. 675-87 .) During the clinical interview Dr. Tromp noted that plaintiff had
"a frequent stutter" but was "fully comprehensible," and had "adequate" attention and concentration. (Tr.
678.) Dr. Tromp also administered a Mini Mental Status Exam ("MMSE"), upon which plaintiff scored
a 30/30. (Id.) Overall, she wrote that she "did not feel that [plaintiff] is malingering," but "[t]he fact that
he is trying hard to prove [his disability] and is not subtle about it actually argues more for impaired social
Page 17 - OPINION AND ORDER

judgment than malingering in this case." (Tr. 680.) She did note that plaintiff exhibited depressive
symptoms, could care for himselfindependently, "was caring for a friend regularly," and "volunteers
regularly." (Tr. 681.) It was her medical opinion that plaintiff would "have trouble with social
co111111unication and judgment, slow processing speed and poor stress tolerance." (Id.) She found he
would be "able to manage simple and detailed tasks," but would "have trouble with complex tasks and
problem solving." (Id.)
On the Mental Impaiiment Questionnaire Dr. Tromp diagnosed plaintiff with ADD-inattentive,
mood disorder, childhood onset speech fluency disorder, and alcohol and amphetamine abuse. (Tr. 683.)
She described plaintiff's "poor stress tolerance" and "difficulty with social judgment and co111111unication,"
overall writing that "stress exacerbates poor co111111unication, social comprehension, interpersonal conflict,
anxiety and paranoia result." (Tr. 685.) She found plaintiff would have moderate-to-marked limitations
in maintaining attention and concentration for extended periods, and moderate liinitations in understanding
and remembering detailed instrnctions and interacting appropriately with the public. (Tr. 686.) Finally, she
found plaintiffwould likely miss more than three days per month if exposed to high stress situations, but
would miss only one day per month if his stress was low. (Tr. 687 .)
Here, theALJ considered Dr. Tromp'smedicalopinion, butgaveit"littleweight." (Tr. 29.) When
discrediting Dr. Tromp' s opinion the ALJ found "she ha[d] no treating relationship with the [plaintiff! and
her examination and report were paid for by counsel in order to generate evidence, not to provide
treatment." (Id.) Additionally, the ALJ found Dr. Tromp's opinion was "highly reliant on the [plaintiffj's
subjective complaints, which are not fully credible." (Id.)
The ALJ was required to give a specific and legitimate reason for discrediting Dr. Tromp' s opinion
Page 18 - OPINION AND ORDER

because it was inconsistent with the opinion of Dr. Bowen. (Tr. 640-53 .) See Bayliss, 427 F Jd at 1216.
First, the court finds the ALJ' s finding that plaintiffs counsel hired Dr. Tromp to evaluate him is not a
specific and legitimate reason for rejecting her medical opinion. See Reddickv. Chater, 157 F Jd 715,
726 (9th Cir. 1998) ("[T]he mere fact that a medical report is provided at the request of a claimant's
counsel, or more broadly, the purpose for which an opinion is provided, is not a legitimate basis for
evaluating the reliability ofthe report.") However, the ALJ provided a specific and legitimate reason for
discrediting Dr. Tromp's medical opinion when she found Dr. Tromp's medical opinion was "highly reliant
on the [plaintiffj's subjective complaints." (Tr. 29.) See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.
1989); Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (a specific and
legitimate reason for rejecting a treating physician's opinion is that the opinion is premised on a claimant's
subjective complaints, which the ALJ had properly discredited.) Because the ALJ provided at least one
specific and legitimate reason for discrediting the medical opinion of Dr. Tromp, this court finds no enor.
C.

Dr. Aaron Bowen, Examining Psychologist

Next, plaintiff argues the ALJ ened by giving "significant weight" to the medical opinion of
examining psychologist, Dr. Aaron Bowen. (Pl. 's Opening Br. 17-18.)
"[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."
Tommasetti, 533 F.3dat 1041-42 (citingAndrewsv. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)).
When "the record contains conflicting medical evidence, the ALJ is charged with detennining credibility and
resolving the conflict .... " Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)(quotingBenton v.
Barnhart, 331F.3d1030 , 1040 (9th Cir. 2003)).
Dr. Bowen performed a psychological evaluation of plaintiff on July 20, 2013 and diagnosed
Page 19 - OPINION AND ORDER

plaintiffwith malingering. (Tr. 640-53.) Despite plaintiffs complaints ofADHD and a stutter, Dr. Bowen
noted thathe did not observe any stutter upon examination. (Tr. 640, 646.) Overall, Dr. Bowen found
plaintiff was "feigning his mental illness-he reported all kinds ofissues, but presented as completely
asymptomatic." (Tr. 641.)
The ALJ gave "significant weight" to the medical opinion ofDr. Bowen that plaintiff"had no mental
limitations." (Tr. 30.) The ALJ "considered [plaintiff!' s complaints regarding Dr. Bowen[' s] examination
and manner," but found "the mmative report appears to be ve1y detailed" and plaintiffs "mini mental status
examination of30/30 tends to show that contrary to his allegations, he has no apparent cognitive deficits."
(Id.) Finally, the ALJ found Dr. Bowen's opinion was "consistent with the [plaintiff]' s activities of daily

living, which show greater activities than alleged." (Id.) Although plaintiff disagrees with the ALJ's
interpretation of the medical record,"[w]hen the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198. The ALJ's
findings are reasonable and supported by substantial evidence, so there is no error.
D.

Non-Examining State Agency Psychologists

Next, plaintiff argues the ALJ e11'ed by giving significant weight to the medical opinion ofthe nonexaminingpsychologists. (Pl. 's Opening Br. 18-19.) Specifically, plaintiffargues the "opinions from nonexamining physicians are not, standing alone, substantial evidence that justifies the rejection of opinions of
treating sources," and that the non-examining psychologist "reviewed [plaintiff]' s file on July 23, 2013
before any ofthe treatment records from the relevant period at issue from Dr. Duane were entered into the
record. (Id.)
"The opinion of anon-examining medical advisor cannot by itself constitute substantial evidence
Page 20 - OPINION AND ORDER

that justifies the rejection ofthe opinion of an examining or treating physician." Morgan, 169 F .3d at 602
(citations omitted). However, the opinions of non-treating or non-examining physicians may serve as
substantial evidence when the opinions are consistent with independent clinical findings or other evidence
in the record. Id. at 600.
Here, the ALJ gave "greater weight" to the opinions of the state agency reviewing physicians
regarding plaintiffs residual functional capacity noting that "their opinions were not inconsistent with the
greater objective record, particularly regarding their finding that the claimant does not have an impahment
or combination ofimpairments that significantly limit his physical and mental ability to do basic work
activities." (Tr. 30.) The court finds the ALJ' s reasons for accepting the opinions ofthe non-examining
physicians was reasonable. Here, the ALJ did not accept the non-examining physicians' opinions as the
only substantial evidence forrejectingthe other medical opinions oftreating and examining physicians, but
considered their opinions and the opinions ofnumerous other treating and examining physicians. (See Tr.
23-30.) The ALJ's evaluation of this medical evidence was reasonable. There is no error.
B.

Non Acceptable Medical Sources

I.

Dr. Thomas Kruzel, treating naturopath

Finally, plaintiff argues the ALJ erred by "failing to properly consider the opinions from treating
naturopath Dr. Kruzel." (Pl.'s Opening Br. 20.)
Evidence from "other sources," including "nmse practitioners, physician assistants, licensed clinical
social workers, naturopaths, chiropractors, audiologists, and therapists ... cannot establish the existence
ofamedically-determinable impairment" under the Act. SSR 06-03p, at *2. However, opinions from
these "not acceptable" medical sources "are important and should be evaluated on key issues such as
Page 21 - OPINION AND ORDER

impairment severity and functional effects.... " SSR 06-03p, at *3. Before rejecting evidence from "other
sources," the ALJ must give germane reasons for doing so. Molinav. Astrue, 674 F.3d 1104, 1111 (9th
Cir. 2012).
Plaintiff saw naturopath, Dr. Kruzel, on February 21, 2013, for complaints offatigue and attention
deficit disorder. (Tr. 618.) On March 27, 2013, Dr. Kruzel completed a Multiple Impairment
Questionnaire that contained his diagnosis that plaintiff suffered from fatigue, diabetes, hypertension, and
attention deficit disorder, and also documented plaintiffs complaints oflow back pain. (Tr. 620-27 .) Mr.
Kruzel opined that plaintiffs fatigue was an "8-9" or "moderately severe to severe," his symptoms would
increase if placed in a competitive work environment, and his "pain, fatigue, or other symptoms" would
frequently interfere with his attention and concentration. (Tr. 622, 624-25.) Finally, he wrote that plaintiffs
impainnents were likely to produce "good days" and "bad days," and that plaintiffwould likely be absent
from work more than three times a month because of his impairments or treatment. (Tr. 626.) On March
28, 2013, Dr. Kruzel wrote a letterin which he provided his overall assessment that plaintiff"is incapable
of performing any full time repetitive work." (Tr. 618.)
Here, the ALJ "considered Dr. Krnzel 's opinion that the claimant is 'incapable of perfmming any
full time repetitive work,"' but overall detetmined that Dr. Kruzel' s statements that plaintiffwas "disabled,"
"unable to work," "can or cannot perform a past job,"or "meets a Listing" were "not medical opinions but
... administrative findings dispositive ofacase" and were "reserved to the Commissioner." (Tr. 30.) The
ALJ further noted that"[o]pinions on issues reserved to the Commissioner can never be entitled to
controlling weight, but must be carefully considered to determine the extent to which they are suppmied
by the record as a whole or contradicted by persuasive evidence (Social Security Ruling 96-Sp )." (Id.)
Page 22 - OPINION AND ORDER

After evaluating the remainderofDr. Krnzel's statements, the ALJ dismissed Dr. Kruzel's opinion because
she found his opinion was "not consistent with the evidence as a whole." (Id.) Additionally, the ALJ
discredited Dr. Krnzel' s statements because "naturopathic doctors are not acceptable medical sources"
and he was "not a long term treater" of plaintiff. (Id.)
The ALI reasonably discredited Dr. Kruzel' s statements that plaintiffwas "disabled" and "unable
to work," properly finding that such conclusions are "reserved to the Commissioner." (Id.) See 20 C.F .R.
§§ 404.1527( d)(l ), 416.927(d)(l) (concluso1y statements that a claimant is "disabled" are not medical

opinions under the Act). But the ALJ still must provide a ge1mane reason for rejecting the remaining
portion ofDr. Kruzel' s opinion. Here, the ALJ found Dr. Kruzel' s opinion was "not consistent with the
evidence as a whole" (tr. 30), but the court finds this is not a germane reason for rejecting Dr. Kruzel' s
medical opinions because the ALJ failed to explain the specific evidence she relied upon in making this
finding. The ALJ erred by rejecting Dr. Kruzel's opinion because he was not an acceptable medical source
or a long-term treater. Although the opinion evidence from a non-acceptable medical source cannot
establish the existence of a medically-determinable impairment under the Act, these opinions "are important
and should be evaluated on key issues such as impairment severity and functional effect .... " SSR 0603p, at *3. Merely finding Dr. Kruzel to not be an acceptable medical source is not a ge1mane reason to
discredit his opinion. Additionally, that Dr. Kruzel is not a long-term treater ofplaintiffwas not a germane
reason for rejecting his opinion, but a factor that the ALJ must consider when "weighing medical opinions"
from a non-treating source. See SSR 06-03p at *3. The ALJ was required to evaluate Dr. Kruzel's
opinion and provide a germane reason for rejecting it, which the ALJ failed to do.
Remand

Page 23 - OPINION AND ORDER

The decision "whether to remand the case for additional evidence or simply to award benefits is
within the discretion of the court." Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Generally,
"[w]hen an ALJ' s denial of benefits is not supported by the record, 'the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation."' Hill v. Astrue, 698
F.3d 1153, 1162 (9th Cir. 2012), quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).
However, an award of benefits can be directed "where the record has been fully developed and where
further administrative proceedings would serve no useful purpose." Smolen, 80 F .3d at 1292. Remand
for calculation ofbenefits is only appropriate where the credit-as-true standard has been satisfied, which
requires:
(I) the record has been fully developed and further administrative proceedings would
serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical opinion; and (3) if the
improperly discredited evidence were credited as true, the ALJ would be required to
find the claimant disabled on remand.
Garrison, 759 F.3d at 1020 (citations omitted).

Here, the ALJ e1Ted when evaluating the medical opinion evidence of Dr. Duane and Dr. Kruzel.
The ALJ' s decision therefore is not supported by substantial evidence. When considering the record as
a whole, this court finds remand for further proceedings appropriate because outstanding issues remain for
resolution before a determination of disability can be made. Specifically, even crediting the medical
opinions ofDr. Duane and Dr. Kruzel, the proceeding below left unclear the severity ofplaintiff's mental
impairments and whether he will be able to perform other work in the national economy with his mental
impairments. On remand, the ALJ should consider the e1Toneously rejected medical evidence from Dr.
Duane and Dr. Kruzel and continue the sequential evaluation.
Page 24 - OPINION AND ORDER

Conclusion

Based on the foregoing discussion, the Commissioner's decision is AFFIRMED in part,
REVERSED in part, and REMANDED for further proceedings.
IT IS SO ORDERED.
DATED this

/O~ay of July 2017.

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