West v. Commissioner Social Security Administration
Filing
23
OPINION & ORDER: The Commissioner's final decision denying Plaintiff's application for supplemental security income is Reversed and Remanded for immediate award of benefits. Signed on 5/15/18 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATHEW WEST,
Plaintiff,
3:16-CV-02333-PK
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
PAPAK, Magistrate Judge:
Mathew West ("Plaintiff') seeks judicial review of the Commissioner of Social
Security's ("Commissioner") decision denying his application for Supplemental Security Income
("SSI") under Title XVI of the Social Security Act ("Act"). This court has jurisdiction over
Plaintiff's action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). All parties have consented to
allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Fed.
R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons that follow, the Commissioner's decision
is REVERSED and REMANDED for an immediate award of benefits.
Page 1 - OPINION AND ORDER
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate he is
"unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Commissioner has
established a five-step sequential process for determining whether a claimant has made the
requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §
416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only
at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ
finds that the claimant is engaged in substantial gainful activity, the claimant will be found not
disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b).
Othe1wise, the evaluation will proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments.
See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 416.920(a)(4)(ii). An impairment is
"severe" ifit significantly limits the claimant's ability to perform basic work activities and is
expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also
20 C.F.R. § 416.920(c). The ability to perform basic work activities is defined as "the abilities
and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.152l(b), 416.92l(b); see
also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or
Page 2 - OPINION AND ORDER
do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482
U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(c). Nevertheless, it is well
established that "the step-two inquiry is a de minimis screening device to dispose of groundless
claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 15354. "An impairment or combination of impairments can be found 'not severe' only if the
evidence establishes a slight abnormality that has 'no more than a minimal effect on an
individual[']s ability to work."' Id., quoting Social Security Ruling ("SSR") 85-28, 1985 SSR
LEXIS 19 (1985).
If the claimant's impaitments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number
of listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii),
416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated
in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See
Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments,
between the third and the fourth steps the ALJ is required to assess the claimant's residual
functional capacity ("RFC"), based on all the relevant medical and other evidence in the
claimant's case record. See 20 C.F.R. § 416.920(e). The RFC is an estimate of the claimant's
capacity to perform sustained, work-related physical and/or mental activities on a regular and
continuing basis, despite the limitations imposed by the claimant's impairments. See 20 C.F .R. §
416.945(a); see also SSR 96-8p, 1996 SSR LEXIS 5.
Page 3 - OPINION AND ORDER
At the fourth step of the evaluation process, the AU considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §
416.9520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can
still perform his or her past relevant work, the claimant will be found not disabled. See Bowen,
482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(f). In the event the claimant is
no longer capable of performing his or her past relevant work, the evaluation will proceed to the
fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the AU considers the RFC in relation to the
claimant's age, education, and work experience to determine whether a person with those
characteristics and RFC could perform any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g). If
the Commissioner meets her burden to demonstrate the existence in significant numbers in the
national economy of jobs capable of being performed by a person with the RFC assessed by the
ALJ between the third and fourth steps of the five-step process, the claimant is found not to be
disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g),
416.960(c), 416.966. A claimant will be found entitled to benefits ifthe Commissioner fails to
meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§
416.920(a)(4)(v), 416.920(g).
LEGAL STANDARD
A reviewing court must affirm an ALJ's decision ifthe ALJ applied proper legal
standards and his or her findings are supported by substantial evidence in the record. See 42
U.S.C. § 405(g); see also Batson v. Comm 'r a/Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
Page 4 - OPINION AND ORDER
2004). "'Substantial evidence' means more than a mere scintilla, but less than a preponderance;
it is such relevant evidence as a reasonable person might accept as adequate to support a
conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The court must review the record as a whole, "weighing both the evidence that supports
and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddickv.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of
the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001 ). Moreover, the court may not rely upon its own independent
findings of fact in determining whether the ALJ's findings are supported by substantial evidence
of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y
C01p., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [of] more than one rational interpretation."
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d
1450, 1453 (9th Cir. 1984).
SUMMARY OF ADMINISTRATIVE RECORD
Plaintiff was born November 13, 1989. Tr. 31. Plaintiff graduated from high school with
a 4.13 GPA. Tr. 282. His academic success was largely attributable to intensive management,
supervision, and strncture imposed by his parents. Tr. 280. After Plaintiff left home to attend his
first year at the University of Oregon, he strnggled academically and with symptoms of
depression and anxiety. Tr. 282. Following a series of psychological and psychiatric
evaluations, Plaintiff was eventually diagnosed with Asperger's disorder. Tr. 268. Doctors also
Page 5 - OPINION AND ORDER
diagnosed Plaintiff with Attention Deficit Hyperactivity Disorder ("ADHD"), anxiety, and social
anxiety disorder, and depression. Tr. 283, 287, 293, 299, 311. Plaintiff took Celexa to manage
depression and anxiety. Tr. 254. Plaintiff subsequently attended one year at Lane County
Community College and then returned to his parents' home and completed an Associate of Arts
("AA") degree from Tillamook Bay Community College in May 2011. Tr. 33, 194.
Plaintiff made several unsuccessful work attempts, including working at Einstein's
Bagels and as a groundskeeper. Tr. 35-36, 49-50. Each of the jobs ended because Plaintiff was
unable to maintain the focus and pace required to complete the work as needed. Id.
Plaintiff protectively filed for SSI on October 12, 2012, alleging impairments of
Asperger's, anxiety, and obsessive compulsive disorder ("OCD"). Tr. 189, 193. His application
was denied initially and upon review. A hearing was held before an ALJ on January 8, 2015. Tr.
25-74. Plaintiff, his father ("Mr. West"), and a vocational expert ("VE") testified. Id. On June
26, 2015, the ALJ issued an opinion finding Plaintiff not disabled. Tr. 8-20. The Appeals
Council denied Plaintiffs request for review on October 13, 2016, making the ALJ's opinion the
final decision of the Commissioner. Tr. 1-4. Plaintiff timely filed his request for district court
review.
SUMMARY OF ALJ FINDINGS
At step-one of the five-step analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since October 12, 2012, the application date. Tr. 13. Proceeding to
step-two of the analysis, the ALJ found that Plaintiff had severe impairments of Asperger's
syndrome, anxiety, and ADHD. Id.
Page 6 - OPINION AND ORDER
At step-three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or equaled any of the enumerated impairments in 20 C.F.R. § 404, subpt. P,
app. 1. Id. The ALJ therefore dete1mined that Plaintiff retained the following RFC:
[C]laimant has the residual functional capacity to perform a full
range of work at all exertional levels but with some nonexertional
limitations. He can perform simple tasks typical of occupations
with a specific vocational preparation (SVP) rating of 1 or 2. He
would work best in an environment that only involves simple work
related decisions with few, if any workplace changes. He should
not work in an environment that requires a fast pace task schedule.
He can only have occasional, superficial and incidental interaction
with others. He can work in proximity to coworkers, but would
work best in an environment not requiring teamwork. He also
needs a supervisor to meet with him once a week after he has
learned required work tasks to remind him of the work tasks and
how timely he needs to perform them.
Tr. 14-15.
At step-four, the ALJ found that Plaintiff had no past relevant work. Tr. 19. At step-five,
based on the testimony of the VE, the ALJ found Plaintiff could perform work as a yard worker,
nursery worker, and warehouse worker, all jobs that exist in significant numbers in the national
economy. Tr. 20.
ANALYSIS
Plaintiff argues the ALJ: ( 1) erroneously found Plaintiff capable of perfmming
competitive employment; (2) erred by finding the VE's testimony was consistent with the
Dictionmy of Occupational Titles ("DOT"); (3) failed to provide legally sufficient rationales for
discrediting Plaintiffs subjective symptom testimony; (4) failed to provide legally sufficient
reasons for discrediting lay witness testimony; (5) improperly evaluated medical opinion
evidence; and (6) improperly discredited "other source" opinion evidence.
Page 7 - OPINION AND ORDER
I.
RFC Formulation
Plaintiff argues that the pottion of the RFC requiring a supervisor to meet with Plaintiff
once a week, after he has learned the job, to remind Plaintiff of the required work tasks and the
timeliness with which he must perform them, is an impermissible "accommodation," such as that
contemplated under the Americans with Disabilities Act ("ADA"). Plaintiff argues that because
the RFC requires special employer accommodation, Plaintiff is not capable of perfotming
competitive employment as a matter oflaw.
The Social Security Act and the ADA provide two different ways to help people with
disabilities. See Cleveland v. Policy Mgmt. Sys. C01p., 526 U.S. 795, 801 (1999). While the Act
provides moneta1y benefits to disabled individuals who are unable to engage in any kind of
substantial gainful work that exists in the national economy, the ADA protects individuals from
workplace discrimination based on disability. 42 U.S.C. §§ 423(d)(2)(A), 12112,
1382c(a)(3)(A); see Cleveland, 526 U.S. at 801.
Briefly, the ADA prohibits a "covered entity'' from discriminating against a "qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112. Discrimination can include
refusal to make "reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or employee," unless the
covered entity can show that providing such accommodation would "impose an undue hardship
on the operation of the business." Id. A "qualified individual" is a person who, "with or without
reasonable accommodation, can perform the essential functions of the employment position that
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such individual holds or desires." 42 U.S.C. § 12111. A "reasonable accommodation" is a
"modification[] or adjustment[] to the work environment, or to the manner or circumstances
under which the position is ... customarily performed, that enable an individual with a disability
who is qualified to perform the essential functions of that job." 29 C.F.R. § 1630.20(o)(l)(ii).
The Act, however, requires no determinations about reasonable accommodation in order
to determine whether an individual is disabled and entitled to benefits. Cleveland, 526 U.S. at
803 ("[W]hen the [Social Security Administration] determines whether an individual is disabled
for [Social Security Disability Insurance] purposes, it does not take the possibility of 'reasonable
accommodation' into account, nor need an applicant refer to the possibility of reasonable
accommodation when she applies for SSDI." (italics in original)). Indeed, Social Security
Administration policy prohibits consideration of whether a claimant can perform "other work
that exists in significant numbers in the national economy ... with accommodations, even if an
employer would be required to provide reasonable accommodations under the [ADA]." SSR l l2p at* 19, 2011 SSR LEXIS 2. Accordingly, whether a claimant can perform other work with an
accommodation may not be considered in the disability analysis.
An RFC is the most a person can do despite his limitations. 20 C.F.R. § 416.945.
"Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis. A 'regular and
continuing basis' means [eight] hours a day, for [five] days a week, or an equivalent work
schedule." SSR 96-8p at *1, 1996 SSR LEXIS 5.
Typically, an RFC describes a claimant's abilities or limitations in regards to general
abilities required to engage in work, and the conditions and characteristics of possible work
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environments (e.g., concentration, pace, ability to sit or stand, proximity to dangers or
distractions like heights or machinery, and whether the claimant can have contact with the public
or engage in teamwork). Here, for example, the ALJ found Plaintiff had the RFC to do jobs
involving only simple decisions, with few workplace changes, but not fast paced work or work
requiring teamwork. Tr. 14. In contrast, the requirement that Plaintiffs supervisor hold weekly
meetings to remind Plaintiff of work tasks he has already learned how to do and the timeliness
with which he must perform the tasks, imposes a condition on the employer beyond what is
typical in the work environment. In other words, whereas other aspects of the RFC limit the
types of jobs Plaintiff can perform due to his impairments, this part of the RFC requires
modification to any job environment based on the nature of Plaintiff's disabilities. Such
modification to the work environment is an accommodation.
The Commissioner argues that because the VE testified that this limitation would not
preclude employment, it was not error. The issue, however, is not whether the requirement
would preclude employment, but whether the condition is an accommodation. As noted above, it
is and its inclusion in the RFC was error.
II.
Step Five Analysis
Plaintiff argues that the ALJ erred by failing to resolve the conflict between the DOT and
the VE' s testimony. Specifically, Plaintiff argues that all of the jobs identified by the VE require
an employee to be able to remember simple instructions, an aptitude that conflicts with the RFC
limitations requiring weekly reminder meetings. The Commissioner argues that any conflict
between the VE's testimony and the DOT is not "apparent and obvious," but even ifit is, the
OPINION AND ORDER - 10
VE's testimony that such weekly reminder meetings would not preclude employment resolves
any conflict with the DOT.
Generally, occupational evidence provided by a VE should be consistent with the
occupational information supplied by the DOT. SSR 00-4p at *4, 2000 SSR LEXIS 8. An ALJ
has a duty to inquire further where a conflict between the DOT and VE's testimony is "obvious
and apparent." Lamear v. Benyhill, 865 F.3d 1201, 1205 (9th Cir. 2017). The duty to ask
follow-up questions is fact-dependent, and "the more obscure the job, the less likely common
experience will dictate the result." Id. "When there is an apparent conflict between the vocation
expert's testimony and the DOT - for example, expert testimony that a claimant can perform an
occupation involving DOT requirements that appear more than the claimant can handle - the
ALJ is required to reconcile the inconsistency." Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir.
2015). Before an ALJ may rely on a VE's testimony to make a disability determination, the ALJ
must reconcile the apparent conflict by asking the VE to explain, "in some detail, why there is no
conflict between the DOT and the applicant's RFC." Lamear, 865 F.3d at 1205.
At the hearing, the ALJ posed a series of hypothetical questions asking the VE to assume
a person of Plaintiffs age and education, with no past relevant work. Tr. 70. The first
hypothetical involved a person without any physical limitations who would be able to
understand, remember, and carry out simple tasks or instructions typical of occupations with a
specific vocational preparation of one or two, and who would work best in an environment with
few, if any, workplace changes and that involved only simple work-related decisions. Id.
Additionally, the hypothetical person should not work in a fast paced enviromnent, like an
assembly line, or perfmm work that required teamwork, although he could work in proximity to
OPINION AND ORDER - 11
others, and should have only occasional, superficial and incidental interaction with others. Id.
When asked whether this hypothetical person could perf01m jobs that exist in significant
numbers in the national economy, the VE responded that such a person could do the jobs of yard
worker, nursery worker, and warehouse worker. Tr. 71.
In the second hypothetical, the ALJ asked whether the jobs identified by the VE would be
affected if such a person "would need to have a supervisor come over, say once a week, after
they've learned the task .... just to give reminders of exactly what the tasks are they're to do,
and how timely they're to perform it." Tr. 71. The VE responded no, the jobs would not be
affected. But, in response to a third hypothetical, the VE stated that a person who needed daily
reminders would not be able to sustain competitive employment. Tr. 72. In a fourth
hypothetical, assuming the same unskilled work from the first hypothetical, the VE testified that
a person who was only able to perform 75 percent of the assigned tasks on daily basis would not
be able to sustain competitive employment. Tr. 73. When asked whether his testimony was
consistent with the Dictionary of Occupational Titles, the VE responded, "[e]xcept when I've
testified to the third and fourth hypothetical, and that's based on upon my professional
experience." Id. Ultimately, the ALJ determined the VE's testimony was "consistent with the
information contained in the [DOT]," and found that Plaintiff could perform the jobs identified.
Tr. 20.
"Work-related mental activities generally required by competitive, remunerative work
include the ability to: understand, cany out, and remember instrnctions." SSR 96-8p at* 17,
1996 SSR LEXIS 5. One way the DOT describes the level of mental activity required by
different jobs is "specific vocational preparation" ("SVP"). SVP is defined as the "amount of
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lapsed time required by a typical worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific job-worker situation. DOT,
Appendix C. An SVP of" l" requires a "sh01t demonstration" while and SVP of "2" requires
"anything beyond a short demonstration up to and including [one] month." Id. All of the jobs
identified by the VE (yard worker, nurse1yworker, and warehouse worker) are SVP-2. Tr. 71.
As defined by the DOT then, a worker should be able to learn, and remember, how to perf01m
these jobs in no more than one month's time. Thus, a requirement that a supervisor in one of
these jobs meet with Plaintiff on a weekly basis, after he has learned how to perform the work, is
an apparent conflict. The VE's unexplained testimony that such weekly meetings would not
preclude employment does not resolve the apparent conflict. Accordingly, the ALJ erred.
III.
Subjective Symptom Testimony
Plaintiff argues the ALJ committed error by discrediting Plaintiffs subjective symptom
testimony without explaining what evidence undermined what symptom allegation or explaining
how certain evidence contradicted Plaintiffs testimony. The Court agrees.
If "there is no affirmative 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, 80 F.3d at 1281, 1283-84). A general assertion that the 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.3d 915, 918 (9th Cir. 1993). General
assertions that the claimant's testimony is not credible are insufficient. Parra v. Astrue, 481 F.3d
742, 750 (9th Cir. 2007). The ALJ must identify "what testimony is not credible and what
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evidence undermines the claimant's complaints." Id. (citing Lester v. Chafer, 81F.3d821, 834
(9th Cir. 1995). The reasons proffered must be "sufficiently specific to pennit the reviewing comt 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). However, even if not all of the ALJ's
findings for discrediting symptom allegations are upheld, the overall decision may still be upheld,
assuming the ALJ provided other valid rationales. Batson, 359 F.3d at 1197.
The ALJ summarized Plaintiff's symptom testimony' as follows:
The claimant rep01ted it is easy for him to get off task. He stated
when he has tried to work, he has had difficulty keeping the pace
required for him to do his work tasks. He stated at the end of the work
shift he strnggled with fatigue and maintaining focus. He stated he
also has mood swings. He stated sometimes he is manic and excited
and sometimes he is depressed and moody.
Tr. 15.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but that Plaintiff's statements regarding the intensity,
'Notably, Plaintiff's disability application was completed by his parents (the Wests). Tr.
216-26. The Wests reported that Plaintiff was unable to obtain or retain employment due to
Asperger's symptoms, specifically: the inability to concentrate which presented difficulty staying
on task and completing tasks; the need for "black and white," step-by-step instrnctions and
"constant supervision;" the inability to perform at the necessary pace and the inability to keep
track of time due to the lack of an "inner clock;" the inability to read body language; and the
inability to multi-task. Tr. 218. The Wests stated that Plaintiff needed reminders to brnsh his
teeth, take a shower, take medication, and to go to bed. Tr. 220-21. With reminders and
supervision, Plaintiff was capable of doing household chores, like laundry, putting away dishes,
mowing, vacuuming, and dusting. Tr. 222. The Wests stated that Plaintiff was able to read,
watch television, and surf the internet. Socially, Plaintiff may see someone once a week and
communicate via Skype. According to the Wests, Plaintiff had limited social interactions
because "people don't know how to spend time with Mathew" and it was "very difficult to have a
[two ]-way conversation." Tr. 224. The Wests reported that Plaintiff became stressed by
confrontation and had difficulty with certain sens01y stimuli, particularly loud noises, fluorescent
lights, and smells. Tr. 225.
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persistence, and limiting effects of his symptoms were not credible. Tr. 15.
Plaintiff testified that he spent time trying to connect with people his own age and that he had
a "handful" of friends with whom he did things like watch movies and prepare dinner. Tr. 32, 41-42.
He went with friends on a !tip to a mountain cabin, and accompanied friends to a couple of churchbased outreach events to help the homeless in downtown Portland. Tr. 41-42. Relying on Plaintiffs
testimony and reciting evidence from Plaintiffs medical records indicating Plaintiff was "pleasant
with some social eccentricities," but able to make friends, and that Plaintiff was friendly, talkative,
and made good eye contact, the ALJ concluded that "although the claimant has some limitations
regarding his social functioning, he is able to engage in some limited social activities, as provided for
in his [RFC]." Tr. 15-16. The ALJ, however, failed to state how the evidence in the record
contradicted Plaintiffs testimony regarding his social activities. Dodrill, 12 F.3d at 917.
The ALJ noted that, with a "fairly high level of structure" provided by his parents, Plaintiff
did well in high school, and that Plaintiff was able to reach out to an instructor for help and
successfully complete an AA degree. Tr. 16. Indeed, Plaintiff testified that during high school, his
parents assisted him by keeping track of assigrnnent due dates, by helping him practice presentations,
and by keeping physical track of Plaintiffs homework and checking it over. Tr. 42-43. Plaintiff
testified that his parents also provided general homework assistance. Tr. 43. While in community
college, Plaintiff said he took an average of three classes per term. Tr. 34, 46. He stated that he had
some difficulty completing weekly exercises in a timely fashion and that he struggled with concepts in
his math class, but he was able to seek extra help from his teacher. Tr. 45-46.
The ALJ also found that Plaintiff "was able to work well doing volunteer retail work ....
[and] this position ended because he moved and because he wanted to look for paid work, not due to
Page 15 - OPINION AND ORDER
his alleged disability." Tr. 16. Plaintiff testified that he volunteered at a non-for-profit retail store
where he worked six hours per day, five days per week for six months. Tr. 39-40. His duties
included organizing and smting donations and interacting with customers. Id. The record, however,
is silent as to how "well" Plaintiff perfmmed in this position; notably, though, the retail store declined
to hire him as a paid employee after six months of extensive volunteering, and Plaintiff stated that this
was why he left the position. Tr. 39-40. Notwithstanding these mischaracterizations, the ALJ failed
to state how any of this evidence impugned Plaintiff's credibility and instead concluded that "[a]ny
limitations he has with coping skills such as organization are accounted for in the [RFC]." Tr. 16.
The ALJ also discredited Plaintiff's credibility based upon "daily activities, which are not
limited to the extent one would expect given his complaints of disabling symptoms and limitations."
Tr. 16. A claimant's activities of daily living ("ADLs") may suppott an adverse credibility finding
when the ADLs illustrate a contradiction with previous testimony, or show that the activities "meet
the threshold for transfenable work skills[.]" Om v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
Courts have repeatedly cautioned, however, that a claimant's ability to engage in activities of daily
living do not necessarily translate into the ability to perform work in the pressures of a workplace
environment. Gmrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). Where, as here, Plaintiff's
impaitment allegations directly implicate his mental ability to perform independently in a full-time,
competitive workplace environment, the ALJ was required to explain how Plaintiff's ADLs
contradicted his symptom testimony. See Om, 495 F.3d at 639 (quoting Burch, 400 F.3d 676,681
(9th Cir. 2005)) ("The ALJ must make 'specific findings relating to [the daily] activities' and
their transferability to conclude that a claimant's daily activities warrant an adverse credibility
detennination."). Here, however, the ALJ listed numerous activities that Plaintiff was able to engage
Page 16- OPINION AND ORDER
in, such as being able to ride a bike and play guitar, but failed to explain how these activities are
transferrable to the workplace or how these activities impugn Plaintiffs credibility.'
Citing an unpublished opinion from the Western District of Washington, the Commissioner
argues that the record as a whole supports the ALJ's findings and that the ALJ was not required to
refute Plaintiffs testimony on a point-by-point basis. Irrespective of whether this is a correct
statement of the law, in order for the court to meaningfully conduct its review, the ALJ is required to
specifically identify at least some pmt of a claimant's testimony found to be not credible and, in
regards to that testimony, provide a clear and convincing reason, supp01ted by the record, for the
credibility determination. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (as amended
Nov. 4, 2015) (holding "that an ALJ does not provide specific, clear, and convincing reasons for
rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her
residual functional capacity determination."). Here, ALJ failed to identify what symptoms were not
credible and why, but rather explained how each symptom was accommodated for in the RFC,
leaving the Court with nothing to review under the applicable standard. Accordingly, this was e1rnr.
'In several parts of the credibility discussion, including the description of Plaintiffs
ADLs, the ALJ mischaracterized the evidence. The ALJ found that Plaintiff"essentially" lived
on his own half of the week because Plaintiffs father traveled to Tillamook. Tr. 16. In fact,
Plaintiffs father traveled to Tillamook only for long weekends, and sometimes Plaintiff
accompanied him, as the ALJ noted later in that same paragraph. Tr. 16, 31-32, 54.
Additionally, the ALJ found Plaintiff was able to manage his medications (tr. 16), but the Court
can find no such evidence; to the contra1y, the record indicates Plaintiff required reminders to do
things like take his medication, brush his teeth, and shower. Tr. 59-60, 65. The record also
indicates that although Plaintiff was able to do basic household chores like laundry, vacuuming,
and dishes, he required reminders to do them. Tr. 47. That Plaintiff needed reminders and
supervision are the salient facts. Regardless of these mischaracterizations, the ALJ failed to
explain how these activities impugn Plaintiffs symptom allegations.
Page 17 - OPINION AND ORDER
IV.
Lay Witness Evidence
Plaintiff argues the ALT erred in discrediting Mr. West's testimony by failing to identify what
parts of the record undennined his testimony or by failing to explain how Plaintiff's ADLs conflict
with Mr. West's testimony.
Mr. West testified that while Plaintiff was in high school, Mr. West and his wife provided
Plaintiff with a regimented schedule and closely supervised Plaintiff's academic work, including
telling him when it was time to do his homework. Tr. 56. After Plaintiff left home to attend the
University of Oregon, Mr. West continued to supe1vise Plaintiff's school work via daily
communications, maintaining copies of Plaintiff's class schedule and syllabi. Id. When Mr. West
discontinued the daily contact with Plaintiff, Plaintiff "went into a deep depression" and stopped
attending classes and turning in assignments. Tr. 57. The following academic year, Plaintiff
attended community college away from home, and Mr. West again supervised Plaintiff through
frequent communications. Tr. 57-58. When Mr. West ceased supervising Plaintiff, Plaintiff again
became depressed and stopped going to classes. Id. Mr. West obseived that dm'ing these "deep
depressions," Plaintiff appeared to "disengag[e] with the world" and stopped bathing. Tr. 58. Even
after moving to Beaverton with Mr. West, Plaintiff needed reminders to shower and brush his teeth.
Tr. 59-60.
Mr. West testified that Plaintiff was "let go" from his job at Einstein Bagels, even after the
employer brought in a job coach to t1y to accommodate Plaintiff's limitations. Tr. 55. Mr. West
testified that Plaintiff worked with vocational rehabilitation through the State of Oregon in addition to
seeking psychological assessments to identify Plaintiff's issues, and seeking counseling and attending
Asperger's support groups. Tr. 62-63. Based on these experiences, Plaintiff's unsuccessful work
Page 18 - OPINION AND ORDER
attempts, and Mr. West's own experiences and observations, Mr. West opined that Plaintiff"cannot
work independently without ve1y close supervision." Tr. 61.
After summarizing Mr. West's testimony, the ALJ gave it "some weight," finding that the
sevelity of Plaintiff's limitations as alleged by Mr. West were "not entirely supported by the rest of
the record of evidence, including the claimant's activities of daily living." Tr. 17.
Lay testimony as to a claimant's symptoms is competent evidence which the ALJ must take
into account. Tobe/er v. Colvin, 749 F.3d 830, 832-34 (9th Cir. 2014); Dodrill, 12 F.3d at 919. In
order to disregard such testimony, the ALJ "must give reasons that are ge1mane to each witness."
Dodrill, 12 F.3d at 919.
Here, the ALJ's finding that the record as a whole, including Plaintiff's ADLs, undermined
Mr. West's testimony fails to meet the "germane" standard. Tills is largely because the ambiguous
and conclusory finding fails to identify either what aspects of Mr. West's testimony are unde1mined,
what parts of the "rest of the record of evidence" contradicted his testimony, or how Plaintiff's ADLs
impugn Mr. West. Nor can this reasoning be gleaned from other parts of the discussion. See Lewis v.
Apfel, 236 F.3d 503, 512 (9th Cir. 2001) ("[T]he ALJ at least noted arguably ge1mane reasons for
dismissing the family members' testimony, even ifhe did not clearly link his dete1mination to those
reasons."). Accordingly, the ALJ ened.
V.
Medical Opinion Evidence
James Powell, Psy.D.
Plaintiff argues the ALJ ened by rejecting Dr. Powell's report based on having only examined
Plaintiff once. Plaintiff also argues that the ALJ ened by inaccurately finding Dr. Powell's opinion
was based on Plaintiff's mother's reports; however, Plaintiff adds, even if Dr. Powell's opinion was
Page 19 - OPINION AND ORDER
based on Plaintiff's mother's repotts, the ALJ still committed e1rnr because the ALJ made no adverse
credibility finding regarding Plaintiff's mother and therefore could not discredit Dr. Powell's opinion
based on her statements.
"There are three types of medical opinions in social security cases: those from treating
physicians, examining physicians, and non-examining physicians." Valentine v. Comm 'r Soc. Sec.
Admin, 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester, 81 F.3d at 830 (9th Cir. 1995)). To reject the
uncontroverted opinion of a treating or examining physician, an ALJ must articulate "clear and
convincing reasons" for doing so. Bayliss v. Earhart, 427 F. 3d 1211, 1216 (9th Cir. 2005) (citing
Lester, 81 F.3d at 803-31). If a treating or examining physician's opinion is in conflict with
substantial evidence or with another physician's opinion, however, it may be rejected for merely
"specific and legitimate reasons." Id.
In June 2012, Plaintiff underwent a psychological evaluation with Dr. Powell. Tr. 259-69.
Dr. Powell inte1viewed Plaintiff and his mother, made behavioral and mental status observations,
reviewed medical, psychological, and psychiatric records, and administered various tests. Tr. 259.
Ultimately, Dr. Powell diagnosed Plaintiff with Asperger's disorder with a hist01y of difficulty with
attention and organization, and anxiety disorder. Tr. 268. Dr. Powell noted that Plaintiff appeared to
"function relatively well in various routines, when there is a relatively high level of strncture, as well
as in smaller group settings." Id. Dr. Powell opined that Plaintiff would experience a "heightened
level of anxiety and disorganization, as well as depression, when subjected to more populated group
settings and crowds," and in settings with little strncture. Id. Although Plaintiff did not appear to
have any developmental or learning disabilities, Dr. Powell noted Plaintiff had "relative difficulty''
processing information in more of an auditory manner but that even those scores fell in the average to
Page 20 - OPINION AND ORDER
low-average range. Tr. 269. Dr. Powell opined that Asperger's contributed to Plaintiffs "severe
deficits in multiple areas of adaptive functioning that would include leisure and self-direction." Id.
Dr. Powell opined that Plaintiff was not able to "independently manage his own welfare for an
extended period of time, either at home or in the community without some external support and
structure." Id.
The ALJ gave partial weight to Dr. Powell's opinions, remarking that they were "based on a
one time examination, largely based on the claimant's mother's repmt and are not supported by the
overall objective evidence." Tr. 18.
As an initial matter, discrediting an examining physician based on having examined a
claimant only one time is not, by itself, a legitimate reason to discredit the opinion. Indeed, the
hierarchy of weight to be assigned to opinions of treating, examining, and non-examining physicians
contemplates a one-time exam by an expert. 3 20 C.F.R. § 416.927(c); see also 20 C.F.R. §§ 416.917,
416.919.
Next, the general rule that allows an AU to reject opinions based on a claimant's self- reports
does not apply in the same manner to opinions regarding mental illness. Buckv. Benyhill, 869 F.3d
1040, 1049 (9th Cir. 2017). This is because of the nature of psychiatry, which depends "in part on the
patient's selfreport, as well as the clinician's obse1vations of the patient." Id. Likewise, while a
finding that a doctor's report was based on subjective third-party repmt may justify rejection of a
medical opinion, that finding by itself falls sh01t of the applicable specific and legitimate standard,
which requires an ALJ to "set out a detailed and thorough summaty of the facts and conflicting
3
Given that the AU gave great weight to the opinion of one-time examining
psychologist, David Gostnell, Ph.D. (tr. 18, 300-11), discrediting Dr. Powell's opinion because
he examined Plaintiff only once seems internally inconsistent.
Page 21 - OPINION AND ORDER
clinical evidence, stating his interpretations thereof, and making findings." Morgan v. Comm 'r of Soc.
Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999) (quoting Magallanes, 881 F.2d at 751; Bayliss,
427 F.3d at 1216-17. Here the ALJ made no adverse credibility findings regarding Plaintiffs mother,
and failed to explain why Plaintiffs mother's repmts were unreliable. The fact that she is a thirdparty is an insufficient reason, in and of itself, to discredit Dr. Powell's opinion.
Likewise, the ALJ did not explain the fmding that Dr. Powell's opinions were not supported
by the "overall objective evidence." Tr. 18. After a careful review of the entire record, the Court
could not identify what cumulative "objective evidence" the ALJ found to be in conflict with Dr.
Powell's opinion. Accordingly, this was not a specific and legitimate reason to discredit Dr. Powell's
opinion.
Additionally, the ALJ discredited Dr. Powell's opinion because the limitations identified by
Dr. Powell "concern the largely unstmctured contexts of leisure, self-direction and socialization, and
not a basic work-environment with clearly established work duties as provided for in the [RFC]." Tr.
18. Yet, the ALJ discredited Plaintiff and Mr. West based upon Plaintiffs leisure and socialization
activities, finding these demonstrated Plaintiffs functionality was greater than alleged. Tr. 16-17. To
find that a claimant's ability to conduct himself in his personal affairs shows he is able to work, but
his inability to do so is in'devant to that analysis defies logic. While a claimant's ability to engage in
ADLs that contradict his symptom allegations can be a clear and convincing reason to discredit that
testimony, a doctor's opinion that a claimant is unable to function independently in activities of
"leisure, self-direction, and socialization" is certainly relevant to a claimant's ability to engage in fulltime competitive employment. Consequently, the ALJ's contradictory finding is not a legitimate
reason to discredit Dr. Powell's opinion.
Page 22 - OPINION AND ORDER
The Commissioner argues that the AU properly rejected Dr. Powell's opinion based on
conflicts with the opinion of another examining psychologist, Dr. Gostnell. The ALJ, however, did
not rely on that rationale in making her finding, and the Comt cannot affinn on grounds the AU did
not invoke. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
Keith Lowenstein, M.D.
Plaintiff argues the AU e1Ted by failing to provide any reason for rejecting the opinions of
treating physician Keith Lowenstein, M.D. The Commissioner responds that Plaintiff waived the
issue by failing to develop the argument. While Plaintiffs argument is brief, Plaintiff made a sh01t
and plain statement of his claim for relief, and that is sufficient. Fed. R. Civ. P. 8(a)(2).
Alternatively, the Commissioner argues that failure to address Dr. Lowenstein's opinions was
harmless because any limitations described by Dr. Lowenstein were accounted for in the RFC.
The AU failed to discuss the opinions of Dr. Lowenstein. This was error. Tonapetyan v.
Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) ("[T]he AU may disregard the opinion of the treating
physician only ifhe sets forth 'specific and legitimate reasons supported by substantial evidence in the
record for doing so."' (quoting Lester, 81 F.3d at 830)). However, Dr. Lowenstein's examination
records primaiily consist ofa history of Plaintiffs psychological symptoms, and brief mental status
exams. Tr. 280-85. To the extent the records contain a physician's opinion, it was limited to
diagnostic concerns of ADHD, "possible history of major depression," social phobia, and possible
Asperger's traits. Tr. 283-84. Additionally, Dr. Lowenstein opined that "[s]ocial anxiety is an issue
and will need to be monitored .... " Tr. 285. Dr. Lowenstein did not opine as to any functional
limitations. Although the records are certainly relevant in regards to the longitudinal consistency of
symptom allegations made by Plaintiff and his parents, Dr. Lowenstein's assessments offer little
Page 23 - OPINION AND ORDER
insight into the severity of Plaintiff's impailments. Moreover, Plaintiff does not argue that Dr.
Lowenstein's opinions show greater limitations than those identified in the ALJ's opinion. Where it
is "inconsequential to the ultimate nondisability dete1mination," an error is harmless. Stout v.
Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Thus, failure to discuss Dr.
Lowenstein's opinions was harmless error.
VI.
"Other" Source Evidence
Plaintiff argues the ALJ erred by rejecting the opinion of mental health counselor, Peggy
Piers, because the ALJ was unable to review Ms. Piers' cha1t notes. Additionally, Plaintiff argues the
ALJ erred by failing to make the fmdings required by SSR 06-3p, and by failing to explain how
Plaintiff's ability to seek help from a teacher undermines Ms. Piers' opinion.
Ms. Piers submitted a two-page opinion letter describing her background and experience
working with clients on the Autism spectrum. Tr. 252-53. Ms. Piers explained that she had known
Plaintiff for two years, and described her impressions of Plaintiff's limitations, challenges, and
strengths related to being on the Autism spectrum and to anxiety. Id. The record indicates that the
ALJ attempted to obtain counseling records from Ms. Piers but was unsuccessful. Tr. 66-68, 255.
The ALJ gave limited weight to Ms. Piers' opinions, noting among other reasons that there
were no corresponding counseling records to support her opinion. Tr. 17.
The opinion of a non-medical source, such as a counselor, may not used to establish a
disability. 20 C.F.R. § 416.921. However, opinion evidence from an "other somce" may be
considered when determining the limiting effects an established disability. 20 C.F.R. § 416.927.
Among the factors the ALJ may consider in deciding what weight to accord an "other source"
opinion, is "the nature and extent of the relationship between the somce and the individual, ... [and]
Page 24 - OPINION AND ORDER
the degree to which the source presents relevant evidence to support his or her opinion." SSR 06-03p
at *11, 2006 SSR LEXIS 5; 20 C.F.R. 416.927(f). Because "other sources" are accorded less
deference than the opinions of physicians, the ALJ's reason for rejecting such testimony must only be
ge1mane to the source. Lewis, 236 F.3d at 511.
Here, the ALJ accorded limited weight to Ms. Piers opinion because there were no treatment
notes or other documentation suppmting her opinion. The lack of suppmting relevant evidence is a
ge1mane reason to discredit Ms. Piers' opinion. Accordingly, the ALJ did not err in according limited
weight to Ms. Piers opinion.
REMAND
Tue ALJ's decision did not provide legally sufficient reasons for discrediting Plaintiffs
subjective symptom allegations, Mr. West's testimony, or Dr. Powell's opinion. Notwithstanding
those eimrs, the ALJ fmmulated an RFC that compels a finding that Plaintiff is disabled: Plaintiff is
unable to work unless offered an accommodation by an employer. That reason alone necessitates
remand for an immediate award of benefits. Moreover, for the reasons that follow, under the creditas-tme analysis, the Court finds additional proceedings would se1ve no useful purpose and remand for
an award of benefits is approp1iate.
Tue decision whether to remand for the further proceedings or for innnediate payment of
benefits is within the discretion of the court. Hannan v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000),
cert. denied, 531 U.S. 1038, 121 S.Ct. 628, 148 L.Ed.2d 537 (2000). The issue turns on the utility of
further proceedings. A remand for an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the record has been fully developed and the
evidence is insufficient to suppmt the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135,
Page 25 - OPINION AND ORDER
1138-39 (9th Cir. 2011) (quoting Benecke v. Bamhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court
may not award benefits punitively and must conduct a "credit-as-true" analysis to dete1mine if a
claimant is disabled under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and immediate award of
benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence; (2) there are no outstanding issues that must be resolved before a determination of disability
can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant
disabled were such evidence credited. Id. The "credit-as-true" doctrine leaves the court flexibility in
dete1mining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett, 340 F.3d 876 (citing Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en bane)). The
reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v. Astrue,
623 F.3d 1032, 1035 (9th Cir. 2010).
The first prong of the credit-as-true test is met by virtue of the ALJ's en-ors evaluating the
medical opinion of Dr. Powell, and the en-oneous credibility dete1minations regarding Plaintiff's
symptoms.
As to the second prong, the Commissioner argues that it is not met as it applies to Dr.
Powell's opinion. Specifically, the Commissioner argues that there is an unresolved conflict between
Dr. Powell's opinion that Plaintiff would do best in a structured environment and Dr. Gostnell's
opinion that Plaintiff has only mild to moderate limitations. To the contrary, after summarizing
Plaintiff's psychological records, including Dr. Powell's evaluation, Dr. Gostnell found that Plaintiff's
presentation for the current exam is generally consistent with previous
evaluations .... His social anxiety and difficulties with pacing,
organization and focus are generally consistent with the diagnosis,
Page 26 - OPINION AND ORDER
compromising his capacity for self-management, independent living
and other adaptive behaviors. He continues to live with his parents,
who provide him a level of supe1vision, structure and suppmt that
ameliorates these deficiencies .... As he has historically
demonstrated, he possesses a number of essential skills for basic
employment, but has never been able to sustain the necessary focus,
organizational skills or intrinsic structure to sustain employment.
Tr. 310. Thus, to the extent both doctors recognized that Plaintiff functions better with externally
imposed structure, there is no material conflict between the doctors' opinions. The Commissioner
does not argue, nor does the Court identify, any other unresolved issues of fact or ambiguities in the
record. Accordingly, the second prong is met.
Considering the entire record, it is clear that the ALJ would have been required to find
Plaintiff disabled had the evidence been properly credited. Indeed, even without properly crediting
the evidence, the ALJ's findings mandate a disability finding. Accordingly, the Court exercises its
discretion to remand this case for an immediate award of benefits.
CONCLUSION
For the reasons set fmth above, the Commissioner's final decision denying Plaintiffs
application for supplemental security income is reversed and remanded for immediate award of
benefits.
Dated this
-th
I';) day of May, 2018.
Ho'norable Paul Papak
United States Magistrate Judge
Page 27 - OPINION AND ORDER
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