Tavera v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER. Signed on 9/21/2017 by Judge Ann L. Aiken. (ck)

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

ANGELA LEE TAVERA,

Case No. 3:16-cv-02100-AA
OPINION AND ORDER

Plaintiff,

v.
NANCY A BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

AIKEN, Judge:
Plaintiff Angela Lee Tavera brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. § 405(g), to obtain judicial review ofa final decision of the Commissioner of
Social Security ("Commissioner").

The Commissioner granted plaintiff's application for

Supplemental Security Income ("SSI") but denied plaintiff's application for Disability Insurance
Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is reversed and
remanded for further proceedings.

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BACKGROUND

In March 2012, plaintiff applied for both Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). She alleged intellectual disability beginning December
31, 1998. Plaintiffs application for SSI was approved, but her application for DIB was deniedinitially on August 30, 2012, and upon reconsideration on February 6, 2013. A hearing was set
for August 11, 2014, but plaintiff did not attend. Another hearing was held on January 12, 2015,
before Administrative Law Judge Riley Atkins.

At the hearing, plaintiff testified and was

represented by counsel. No other testimony was taken. On January 27, 2015, the ALJ issued an
unfavorable decision. He found that plaintiff was not disabled within the meaning of sections
216(i) and 223(d) of the Act at any time through June 30, 2001, plaintiffs Title II date last
insured ("DLI"). The Appeals Council denied review on August 30, 2016, and plaintiff filed a
complaint in this Court.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if it is based upon 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." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). However, even a decision
supported by substantial evidence must be set aside if the Commissioner did not apply the proper
legal standards in evaluating the evidence. Reddickv. Chafer, 157 F.3d 715, 720 (9th Cir. 1998).
The court must weigh "both the evidence that supports and the evidence that detracts from the
ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is

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subject to more than one interpretation, but the Commissioner's decision is rational, the
Commissioner must be affirmed; "the court may not substitute its judgment for that of the
Commissioner." Edlundv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The plaintiff bears the initial burden of proving she is disabled. Howard v. Heckler, 782
F.2d 1484, 1486 (9th Cir. 1986). To satisfy this burden, plaintiff must demonstrate an "inability
to engage in any substantial gainful activity by reason of any medically determinable 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
analysis for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140
(1987); 20 C.F.R. § 404.1520(a)(4). Five questions are asked, in order, until the adjudicator
arrives at a clear finding of disability or no disability. Id.
At step one of the process, the ALJ found that plaintiff did not engage in any substantial
gainful activity ("SGA") at any time between the alleged onset date and the DLI ("the relevant
period"). Plaintiff alleges a disability onset date of December 31, 1998. Her DLI for Title II
purposes is June 30, 2001. Therefore, the relevant period-during which plaintiff must show she
was disabled-ended more than 16 years ago; at the time of the hearing, it was already 14 years
past.

There was no contemporaneous medical evidence demonstrating plaintiffs disability

during the relevant period. Thus, at step two of the process, the ALJ concluded that there was
insufficient medical evidence to support a finding of disability before the DLI. Accordingly, the
ALJ ended his analysis at step two, largely persuaded by the lack of evidence.

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DISCUSSION

Plaintiff concedes that any remand must be for further proceedings, as the record is
insufficiently developed for an immediate award of benefits. The question is whether the ALJ's
opinion contains errors of law sufficiently harmful to justify a remand of this case for an
additional hearing. I find that it does.
Plaintiff alleges that the ALJ erred in failing to consult a medical expett to assist in
inferring an onset date of her disability. It is unclear from the record whether that error alone
harmed plaintiffs claim, because that error's effect has been obscured by other errors in the
ALJ's opinion. I find those errors were hannful and watrnnt a remand of this case for additional
proceedings.
I.

The ALJ's Failure to Adequately Weigh the Medical Evidence Was Legal Error.

When weighing the medical evidence and resolving ambiguities therein, "the ALJ is the
final arbiter[.]" Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Where "the record
contains conflicting medical evidence, the ALJ is charged with determining credibility and
resolving the conflict[.]" Chaudh1y v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (internal
quotation marks omitted). Nevertheless, the ALJ must "explicitly reject a medical opinion or set
forth specific, legitimate reasons for crediting one medical opinion over another[.]" Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). An ALJ commits reversible en·or when he rejects or

assigns lesser weight to an opinion "while doing nothing more than ignoring it, asserting without
explanation that another medical opinion is more persuasive, or criticizing it with boilerplate
language that fails to offer a substantive basis" for his determination. Id. at 1012-13.
When the opinion of a physician who actually examined the patient is contradicted by the
opinion of a doctor who merely reviewed records, "an ALJ may only reject it by providing

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specific and legitimate reasons that are suppo1ied by substantial evidence." Id. at 1012 (internal
quotation marks omitted). An ALJ can satisfy the "substantial evidence" standard by "setting
out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings."

Id. (internal quotation marks omitted).

Additionally, "[t]he opinion of a non-examining medical advisor cannot by itself constitute
substantial evidence that justifies the rejection of the opinion of an examining ... physician."
Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). Moreover, "even

when contradicted, a treating or examining physician's opinion is still owed deference and will
often be entitled to the greatest weight[.]" Garrison, 759 F.3d at 1012 (internal quotation marks
omitted).
In this case, the ALJ addressed testimony from four physicians: two examining
physicians, Drs. Stuckey and Brischetto, and two reviewing physicians, Drs. Beatty and
Anderson. Both of the examining physicians documented diagnoses and test results that, in
combination with lay testimony and other evidence in the record, could prove that plaintiff is
currently disabled within the meaning of the Act.

However, neither evaluating physician

provided an opinion as to whether plaintiff was similarly disabled during the relevant period. By
comparison, both reviewing physicians considered plaintiff's "limitations as they currently
exist," opining that plaintiff "has severe mental impairments, which in aggregate cause specific
cognitive and social limitations" but concluding that "the record includes insufficient evidence
from the claimant's alleged onset date to her date last insured" to find that she was disabled
during the relevant period. Tr. 25. Rather than crediting the opinions of Drs. Stuckey and
Brischetto that plaintiff is currently disabled-and then consulting a medical expert to assist in
inferring an onset date of that disability-the ALJ instead chose to credit the opinions of the

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reviewing physicians who declined to find a present disability, obviating the need to infer any
sort of onset date.

A.

The ALJprovided insufficient reasons for discrediting the testimony ofDr.
Stuckey.

Dr. Stuckey diagnosed plaintiff with Anxiety Disorder NOS, rule out Nightmare
Disorder, Depressive Disorder NOS, and rule out Borderline Intellectual Functioning. In his
final summary, Dr. Stuckey noted that plaintiff is "viewed as a very poor historian with deficient
comprehension and estimated very low intelligence" but that an IQ test, which he recommended,
had not yet been performed. Tr. 363. Dr. Stuckey included concerns about plaintiffs "veracity
of her self-report" regarding her symptoms of anxiety and depression. Id.
In his opinion, the ALJ concluded that "[b]ased on the claimant's poor ability as a
historian and Dr. Stuckey's concerns regarding her veracity as to her alleged symptoms, his
report does not support the claimant's allegation during the relevant period[.]" Tr. 24. That is,
the ALJ used Dr. Stuckey's concerns about both plaintiffs limited capacity as a historian and the
veracity of her self-reporting to discredit the relevant diagnoses. But Dr. Stuckey's diagnoses
took those concerns into account; he chose to diagnose her anyway.

The ALJ cited Dr.

Stuckey's remarks to suggest that plaintiff is not disabled because she is a poor historian, but Dr.
Stuckey concluded precisely the opposite: that plaintiff is a poor historian because she suffers
from potentially disabling cognitive limitations.
Additionally, Dr. Stuckey's concerns about the "veracity of [plaintiffs] self-report" were
confined to his diagnoses of Anxiety Disorder NOS and a rule out for Nightmare Disorderspecifically, as reasoning for why plaintiff was not instead diagnosed with the more severe
"Panic Disorder or PTSD." Tr. 363.

The "veracity" phrase is contained within the same

sentence as the anxiety/nightmare diagnoses, indicating that it applies just to those diagnoses. Id.
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Indeed, the narrative portion of Dr. Stuckey's report underscores this connection, as he opined
plaintiffs self-rep01i of a 10 out of 10 and a 9 out of 10 to describe her feelings of depression
and anxiety were "highly inflated and inconsistent with her affective presentation." Tr. 362.
The ALJ misapplied and selectively quoted Dr. Stuckey' s remarks to discredit his entire
opinion; that was legal error. The ALJ's reasons for discrediting Dr. Stuckey, while sufficiently
specific, were not legitimate, nor were they supported by substantial evidence.

B.

The AU similarly discredited-but never explicitly rejected-the medical
opinion ofDr. Brischetto.

Upon examination and the administration of several objective psychological tests, Dr.
Brischetto diagnosed plaintiff with a Learning Disorder NOS and Borderline Intellectual
Functioning; testing revealed a full scale IQ of 56.

The ALJ mentioned Dr. Brischetto's

conclusions in his opinion. In the same breath, he raised Dr. Brischetto's concerns that plaintiff
"seemed to give up easily on some of the formal testing" and that plaintiffs test scores may
"underestimate some her true capacity." Tr. 25 (internal quotation marks omitted). Impotiantly,
however, the ALJ never explicitly rejected Dr. Brischetto's medical opinion. He never drew any
conclusions from Dr. Brischetto's concerns; he merely noted them and moved on. That is
reversible etTor. Garrison, 759 F.3d at 1012 (ALJ must "explicitly reject a medical opinion").
The ALJ appears to have rejected Dr. Brischetto's opinion based on the documented
concerns about plaintiff's effort during testing. But like Dr. Stuckey, Dr. Brischetto did not
diagnose plaintiff in spite of her concerns; she incorporated her concerns into her diagnosis. It
was her concerns about the accuracy of plaintiffs formal testing that caused Dr. Brischetto to
diagnose plaintiff with Borderline Intellectual Functioning even though her scoring "could
suggest" the more severe diagnosis of "Mild Mental Retardation[.]" Tr. 385. In sum, the ALJ
provided neither specific nor legitimate reasons to reject Dr. Brischetto's opinion.
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If credited as true, Dr. Brischetto's and Dr. Stuckey's diagnoses tend to indicate that
plaintiff is currently disabled within the meaning of the Act. Plaintiff is alleging an intellectual
disability under Listing 12.05B. 20 C.F.R. Pt. 404, Subpatt P, App. 1 § 12.05. A claimant meets
Listing 12.05B if she has, during the relevant period, "[a] full scale ... IQ score of70 or below"
as well as "[s]ignificant deficits in adaptive functioning currently manifested by ... marked
limitation of . . .

[u]nderstand[ing],

remember[ing],

or apply[ing]

information" and

"[c]oncentrat[ing], persist[ing], or maintain[ing] pace[.]" Id In her report, Dr. Brischetto noted
plaintiffs full scale IQ of 56, her "extremely low" abilities to recall and understand information,
and her tendency to "give up easily" on some of the tests. Tr. 383-384.
In sum, the ALJ disregarded the opinions of two examining physicians who concluded
plaintiff was currently disabled without legally sufficient justification, choosing instead to credit
the opinions of two reviewing physicians. That was error.

II.

The AL.J's Failure to Credit the Lay Testimony ofAnna Weller Was Legal Error.
Lay witness testimony as to a claimant's symptoms is competent testimony that an ALJ

must consider. Dodrill v. Shala/a, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ may discount
lay witness testimony only for "reasons that are germane to each witness."

Id. at 919.

Furthermore, "the reasons germane to each witness must be specific." Bruce v. Astrue, 557 F.3d
1113, 1115 (9th Cir. 2009) (internal quotation marks omitted).

The ALJ's opinion described

lay testimony from two of plaintiffs friends as well as from her aunt, Anna Weller. The ALJ
summarized the testimony of each lay witness and dismissed them all with the same reasoning:
(1) "[t]he statements from Ms. Vails, Ms. Sanchez, and Ms. Weller all postdate the claimant's
Title II date last insured by at least ten years" and "do not specifically address [plaintiffs]

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abilities and limitations during the relevant period[,]" and (2) "they do not describe symptoms or
limitations so severe as to preclude plaintiff from fulltime work activity." Tr. 26.
As to the first reason, neither Ms. Vails nor Ms. Sanchez came to know plaintiff until
around four years after her DLI (a fact the ALJ noted in his opinion); that is a reason sufficiently
germane to discredit those witnesses' testimonies. However, Ms. Weller has known plaintiff
since her birth. More than that, Ms. Weller was able to provide testimony concerning details of
plaintiffs childhood and upbringing that did not appear elsewhere in the record. Ms. Weller's
testimony specifically concerned the period before plaintiffs DLI.

Thus, the first reason

proffered by the ALJ is not germane to Ms. Weller's testimony.
Regarding the ALJ's second reason for discrediting her testimony, Ms. Weller testified to
several circumstances that shed light on the severity of plaintiffs symptoms and limitations: "we
all personally saw that [plaintiffs mother] drank and smoked pot and ... used other drugs during
her pregnanc[y;]" plaintiffs grandparents frequently had to "repeat the instructions [for] and
show her how to do" simple household chores; "[t]hroughout her life, [plaintiff has had] a hard
time staying focused" and "does not pay attention and/or doesn't understand[;]" and, while she
was in school, "[i]t was told to [plaintiffs family] that although she may have been in her teen
years her mental capacity was that of a small child[.]" Tr. 352-54. The symptoms described by
Ms. Weller are similar to those that must be demonstrated to meet Listing 12.05B, as explained
above. 20 C.F.R. Pt. 404, Subpart P, App. 1 § 12.05 (including low IQ, difficulty understanding,
and difficulty concentrating). More importantly, Ms. Weller described pre-DLI symptoms that
were consistent with the diagnoses given by examining physicians over a decade post-DLI. The
ALJ rejected Ms. Weller's opinion as inconsistent with fulltime disability without proceeding
beyond step two of the analysis; it is unclear how the sorts of cognitive limitations Ms. Weller

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alleged would affect plaintiff at step four or step five.

Thus, to suggest that Ms. Weller's

testimony should be discredited because it did not describe symptoms and limitations sufficient
for a finding of disability within the relevant period is error. While that reasoning may have
been germane to the other lay witnesses, it is not germane to Ms. Weller.

III.

The ALJ Impermissibly Removed All Ambiguity to Avoid Inferring an Onset Date.

The ALJ in Social Security hearings has a duty to assist claimants in developing the
administrative record. Delorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Part of that duty
is establishing the date when plaintiff became disabled under the Act-the onset date of
plaintiffs disability. SSR 83-20, available at 1983 WL 31249. When the administrative record
"is ambiguous as to the onset date of disability, the ALJ must call a medical expert to assist in
determining the onset date." Armstrong v. Comm 'r ofSocial Sec. Admin., 160 F.3d 587, 590 (9th
Cir. 1998).
Defendant argues that the ALJ did not need to consult a medical expert in inferring the
disability onset date because the medical evidence was not ambiguous. That characterization is
consistent with the ALJ' s approach in this case. As the record-and the foregoing analysismake clear, the ALJ had serious doubts about plaintiffs veracity. The ALJ used those doubts as
the basis for discrediting all medical evidence that could have demonstrated plaintiffs present
disability. Then, proceeding from the belief that plaintiff was not presently disabled, the ALJ
had little trouble dismissing lay evidence that would tend to show that plaintiffs alleged
disability was manifest during the relevant period.

In doing so, the ALJ removed all potential

for ambiguity-and thus obviated the need to consult a medical expett to infer an onset date.
That process and result were fatal error.

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Some troubling aspects of the hearing record underscore the ALJ's premature conclusion
in this case. First, the hearing was very brief, lasting only 18 minutes. Tr. 34, 49. In a case
decided on lack of evidence, common sense suggests the hearing should be longer than usual
rather than shorter than usual, so that the ALJ may make every effort to utilize the claimant and
any other sources of evidence present to develop the record to the fullest extent possible.
Additionally, I am troubled by the ALJ's comments at the hearing's outset.

When, as a

preliminary matter, plaintiffs counsel raised the possibility of a presumptive finding of disability
based on plaintiff's full scale IQ score and the corroborating testimony from Ms. Weller, the ALJ
interrupted to give his assessment of the evidence in the record:
And that-you know, it's remarkable if you read the psychological evaluations
done in this case. Each of the evaluators speak to remarkable inconsistencies. To
be honest with you, I'm quite surprised that the state paid this case just based on a
review of how they found her disabled for SSL It was not a clear-cut case of
disability based on my review of the records[.] ... That's not before me today so
I'm not considering the SSI benefits, but I don't believe there's any presumptive
disability finding based on the exhibits that have been submitted today.
Tr. 36.

First, it was unnecessary for the ALJ in plaintiff's DIB hearing to opine on the

legitimacy of her earlier award of SSI benefits. Moreover, his remarks suggest that the ALJ had
decided at the hearing's outset that he would not be persuaded by any evidence in the record.
That is concerning. The ALJ's comments in the hearing support the implication in his opinion:
that he had no intention of crediting the medical or lay evidence, regardless of what was said at
the hearing, because he did not consider plaintiff to be disabled-not now nor in the past.
Because the ALJ failed to adequately credit or discredit the medical and lay evidence
according to appropriate legal standards, he improperly eliminated the potential for ambiguity
and thus the potential need to consult a medical professional to infer an onset date of disability.
That process amounted to harmful legal error.

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CONCLUSION

Accordingly, the Commissioner's decision is REVERSED and this case is REMANDED
FOR FURTHER PROCEEDINGS consistent with this opinion.
IT IS SO ORDERED.

8'

Dated this ex/day of September 2017.

AnnAiken
United States District Judge

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