Brown v. Commissioner Social Security Administration
Filing
35
Opinion and Order - The Commissioner's decision is affirmed with respect to the period between the alleged onset date, June 2001, and December 2004. The Commissioner's decision is reversed and remanded for further proceedings to determine the onset date of Plaintiffs disability, at which the opinions of Doctors Eriksen and Godard, and the testimony of the third-party witnesses, are to be credited as true. Signed on 3/16/12 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
LAURA L. BROWN,
Plaintiff,
Case No. CV 10-1088-SI
v.
OPINION AND ORDER
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
David Lowry
9900 S.W. Greenburg Road, Suite 130
Portland, Oregon 07223
Attorney for Plaintiff
Amanda Marshall
United States Attorney
Adrian L. Brown
Assistant United States Attorney
U.S. Attorney’s Office, District of Oregon
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Jamala Edwards
Special Assistant United States Attorney
Social Security Administration
Office of General Counsel
701 Fifth Avenue, Suite 2900
M/S 221A
Seattle, Washington 98104
Attorneys for Defendant
Opinion and Order, Page 1
SIMON, District Judge.
I. INTRODUCTION
This is an action to obtain judicial review of a final decision by the Commissioner of the
Social Security Administration (“Commissioner”) denying the application of Laura L. Brown for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income benefits (“SSI”).
Plaintiff’s date last insured for DIB is December 31, 2006.1 Plaintiff alleges disability on the
basis of anxiety disorder, post-traumatic stress disorder (“PTSD”), depression, and agoraphobia.
The court concludes that the Commissioner’s finding of non-disability is supported by
substantial evidence in the record for the period between the alleged onset date, June 1, 2001,
and December 2004, but is not supported by substantial evidence with respect to the period after
December 2004.2 The court therefore affirms the Commissioner’s conclusion that Plaintiff was
not disabled between June 2001 and December 2004, but reverses and remands for
administrative determination of Plaintiff’s disability onset date.
II. BACKGROUND
Plaintiff filed an application for benefits on October 20, 2004, alleging disability since
June 1, 2001. Her claims were denied initially and upon reconsideration. A hearing was held
1
DIB benefits require at least 20 quarters of coverage within the 40-quarter period that
ends with the quarter in which the disability occurred. The end of a claimant’s insured status is
frequently referred to as the “date last insured.” In a DIB case, the claimant must prove that the
current disability began on or before the date last insured. Tidwell v. Apfel, 161 F.3d 599, 601
(9th Cir. 1998). Proving disability before the date last insured is not necessary for receipt of SSI
benefits.
2
The record of proceedings filed conventionally with the court is missing pages 147-150.
These pages apparently contain the records of Holly Hoch, M.D. Dr. Hoch’s opinions are not at
issue in this case.
Opinion and Order, Page 2
before Administrative Law Judge (“ALJ”) Catherine Lazuran on May 1, 2007. On June 20,
2007, the ALJ issued a decision finding Plaintiff not disabled. After the Appeals Council denied
review on November 24, 2008, the ALJ’s decision became the final decision of the
Commissioner.
Plaintiff was born in 1965 and was 36 years old at the time of her alleged disability onset
date, June 2001. She received an associate degree from community college in June 2004. Her
past relevant work is as a data entry and shipping clerk, receptionist, and cashier.
A.
Medical Evidence
Plaintiff was treated at Physicians’ Medical Center between June 1998 and December
2006 by several physicians and by nurse practitioner Anna Rufo. Beginning in February 2002,
Plaintiff’s primary care physician was Jacqueline Eriksen, M.D. Tr. 262. Chart notes from
Physicians’ Medical Center indicate that Plaintiff had a “past history of anxiety attacks and also
panic attacks,” but that she “chooses not to use medication because she feels that she can control
them herself.” See, e.g., tr. 193 (chart note from Ms. Rufo dated October 5, 1999 noting “history
of anxiety and panic attack” and “very sparing” use of Xanax for panic attacks); tr. 195 (chart
note dated January 5, 1999: “She chooses not to use medication because she feels she can control
them herself. . . . She is aware that the anxiety attacks are affecting her life and that panic attacks
have pretty much discontinued. She has those under control.”)3 Ms. Rufo’s chart note of January
5, 1999 records that Plaintiff was seeing Michael Miller, M.D. for anxiety attacks, and he had
recommended cognitive counseling, but Plaintiff felt she did not need it. Tr. 195.
3
Xanax (alprazolam) is a benzodiazepine used to treat anxiety disorders and panic
disorders. U.S. National Library of Medicine, PubMed Health (“PubMed”), available at
http://www.ncbi.nlm.nih.gov/pubmedhealth.
Opinion and Order, Page 3
On May 2, 2000, Ms. Rufo wrote that Plaintiff was in the office, “very upset, pacing the
floor.” Tr. 190. Plaintiff reported that she was being evaluated for her job and was having
financial difficulties. Id. She was still opposed to any type of medication to prevent the anxiety
and panic attacks, but agreed to take Paxil (paroxetine)4. Id. On May 11, 2000, Plaintiff saw Dr.
Eriksen, who gave her a three-month supply of Paxil and Xanax. Id.
On February 15, 2002, Dr. Eriksen noted that Plaintiff was requesting Xanax “just to
have in her purse as it makes her feel better. Uses it maybe once a month.” Tr. 189. Between
February 2002 and April 2003, Plaintiff saw Dr. Eriksen approximately six times for routine
medical care. On January 22, 2004, Plaintiff reported significant family stressors, primarily
estrangement from her daughter, and financial difficulties related to attending community
college. Tr. 185. Plaintiff remained “adamant” that she did not want antidepressant medications
because they would “sugar coat the problem.” Id.
On February 10, 2004, Plaintiff asked Dr. Eriksen to write a note to her school explaining
that she had a general anxiety disorder with agoraphobia “so that she is able to get some special
consideration for testing and classes.” Tr. 184. Plaintiff reported suicidal ideation and refused to
answer questions about whether she had a plan for suicide. Id. Dr. Eriksen encouraged Plaintiff
to take an antidepressant and agree to a suicide contract, but Plaintiff refused. Id. Dr. Eriksen
wrote that she used Plaintiff’s desire for the note as the “impetus” for getting Plaintiff to agree to
seeing a counselor at Yamhill County Mental Health. Id.
On March 31, 2004, Dr. Eriksen wrote that Plaintiff had come in “mainly because she
4
Paroxetine, a selective serotonin reuptake inhibitor (“SSRI”) is used to treat depression,
panic disorder and anxiety disorder. Id.
Opinion and Order, Page 4
needs a note for school.” Tr. 183. Dr. Eriksen wrote that Plaintiff had “never been interested in
taking something regularly to prevent” her anxiety and panic attacks. Id. On May 3, 2004,
Plaintiff saw Dr. Eriksen for a regular physical examination. Id. Plaintiff reported problems with
forgetting simple things and being under a great deal more stress as her son was currently in a
juvenile detention facility. Id. Dr. Eriksen wrote that Plaintiff was taking no medication except
“Xanax on a very sparing basis.” Id. On May 26, 2004, Dr. Eriksen wrote that Plaintiff had
started Lexapro (escitalopram)5, but was still under a significant amount of stress at school.
Id. Plaintiff reported that Xanax was not helping as much as in the past. Tr. 182. Plaintiff felt that
she was hardly able to go to school and did not “even want to leave her house.” Id. Dr. Eriksen
continued Plaintiff on Lexapro and urged her to try Klonopin (clonazepam)6 for a few days along
with the Xanax. Id.
On June 21, 2004, Plaintiff saw Dr. Eriksen and expressed concern about toxic exposure
to barium carbonate. Id. Dr. Eriksen was dubious because Plaintiff had not ingested it. Tr. 181.
Dr. Eriksen thought Plaintiff’s symptoms could be related to stress and anxiety. Id. On August
23, 2004, Dr. Eriksen wrote that Plaintiff’s anxiety had worsened since watching a television
show with a rape that “brought back a lot of feelings from her previous history of rape.” Id.
Plaintiff was having difficulty sleeping and did not want to leave her house. Id. Plaintiff said that
she had “not felt like she is able to go out and find work and has not gone back to school over the
summer quarter. Just not wanting to leave her home.” Tr. 180.
5
Escitalopram, an SSRI, is used to treat depression and generalized anxiety disorder.
PubMed, available at http://www.ncbi.nlm.nih.gov/pubmedhealth.
6
Clonazepam is a benzodiazepine used to relieve panic attacks. Id.
Opinion and Order, Page 5
On September 14, 2004, Dr. Eriksen wrote that a consulting neurologist had concluded
that Plaintiff’s neurologic symptoms were related to anxiety, not toxic exposure. Tr. 180.
Plaintiff said she was taking Klonopin before leaving her house for appointments. Id. Plaintiff
also reported auditory hallucinations and constant paranoia about someone breaking in to her
house. Id. Dr. Eriksen started her on Seroquel (quetiapine)7, and encouraged her to see a
psychiatrist at Yamhill County Mental Health. Id. On September 28, 2004, Plaintiff said that the
Seroquel was not helping. Tr. 179. Plaintiff saw a counselor at Yamhill County Mental Health,
Patricia Brown, MSW, between September 15, 2004 and November 30, 2006 . Tr. 127, 254.
On October 11, 2004, Plaintiff was given a comprehensive psychological evaluation by
Dale J. Veith, Psy.D. Plaintiff complained of intense anxiety, including panic attacks,
agoraphobia, and PTSD. Plaintiff told Dr. Veith she had been sexually molested by her father
and that her PTSD was the result of having been raped seven times, including by three uncles.
Tr. 136, 137, 139. She said the most recent rape had occurred when she was 17 years old, when
she was pistol-whipped and handcuffed. Tr. 138.
Dr. Veith wrote that Plaintiff’s performance on measures of cognitive functioning raised
“concerns about the adequacy and consistency of her effort on testing.” Tr. 137. Similarly, her
scores on measures of malingering and psychological symptoms on the Minnesota Multiphasic
Personality Inventory 2 (“MMPI 2”) were positive. Id. Dr. Veith opined that the inconsistency of
effort and the indications of symptom magnification in her MMPI 2 profile rendered her test
results invalid. Id. He diagnosed Plaintiff as a probable malingerer. Tr. 145.
7
Quetiapine, an atypical antipsychotic, is used to treat the symptoms of schizophrenia,
bipolar disorder, and depression. Id.
Opinion and Order, Page 6
On October 20, 2004, Dr. Eriksen noted that Plaintiff that reported she left her house
“maybe once a week only to come to physicians’ appointments.” Tr. 179. Dr. Eriksen wrote
that Plaintiff was “pacing back and forth, never sat,” but did not have pressured speech. Id. Dr.
Eriksen was concerned about “some psychosis with this depression or maybe some paranoid
schizophrenia appearing fairly late.” Id. She increased the Lexapro dosage and told Plaintiff she
needed to see a psychiatrist because “I am not able to completely manage her symptoms, so that
we can get her back to her functional life.” Id.
On December 13, 2004, Plaintiff reported “fairly severe anxiety” and having difficulty
leaving her house. Tr. 178. She continued to see Patricia Brown, but had been “a little reticent to
go back” to psychiatrist Holly Hoch, M.D., after seeing Dr. Hoch once. Id. She was able to sit
through the visit and express herself in a normal speech pattern. Id. Dr. Eriksen increased the
Lexapro dosage and suggested that she take it with Klonopin. Dr. Eriksen urged Plaintiff to
follow up with Dr. Hoch for medications. Tr. 177.
On December 15, 2004, Paul Rethinger, Ph.D. reviewed Plaintiff’s medical records on
behalf of the Commissioner and completed a rating of Plaintiff’s functional limitations. He found
her moderately impaired in maintaining social functioning, concentration, persistence, or pace.
He opined that Plaintiff was unable to understand, remember, and carry out detailed instructions,
but could understand, remember, and carry out simple instructions. He thought she was unable to
work with the public, but that she could get along with coworkers and supervisors. Tr. 176. Bill
Hennings, Ph.D., also reviewing records on behalf of the Commissioner, affirmed
Dr. Rethinger’s findings on March 25, 2005. Tr. 218.
On May 6, 2005, Plaintiff met with Sally Godard, M.D., a psychiatrist. Tr. 252. Plaintiff
Opinion and Order, Page 7
told Dr. Godard that she had increasing problems with panic attacks and agoraphobia, as well as
Obsessive Compulsive Disorder symptoms such as locking doors, checking on things, and not
liking to touch certain objects. Id. Plaintiff said she had difficulty with crowds and avoided going
to restaurants. Plaintiff said she “really ha[d] been dysfunctional” since the previous year.
Plaintiff was no longer taking Lexapro and did not use the Klonopin. Id. Dr. Godard observed
that Plaintiff was “generally cooperative, but she is very, very anxious. Her palms are cold and
sweaty when I shake hands with her. She is not able to sit down. She walks around the room. . . .
She answers questions appropriately, but only in short words.” Id. Dr. Godard observed that
Plaintiff’s mood and affect were “extremely anxious and upset.” Id. On May 23, 2005, Plaintiff
described “fits of hysteria,” over the past weekend. Tr. 250. She was taking Xanax, but
Dr. Godard started her on Zoloft (sertraline)8. Id.
Dr. Godard saw Plaintiff at home9 on July 2, 2005. Tr. 248. Plaintiff had continued with
the Zoloft and the Xanax, despite “strong feelings against taking medications.” Id. Plaintiff
reported going to the grocery store with her mother and being able to stay in the store, but unable
to stand in line. Id. Dr. Godard wrote that Plaintiff had “made some progress in going outside
with her niece,” and that she was “leaving the curtains open in one of her windows.” Id. Dr.
Godard observed that Plaintiff appeared a “little bit more relaxed,” and asked Plaintiff to do
something outside the house once a week and report back to Dr. Godard. Id.
8
Sertraline is an SSRI used to treat depression, obsessive-compulsive disorder, panic
attacks, and PTSD. Id.
9
Although Dr. Godard and Ms. Brown came to Plaintiff’s home, the record indicates that
Plaintiff continued to see Dr. Eriksen in her office at regular intervals between May 2005 and
December 2006. Tr. 263-67.
Opinion and Order, Page 8
When Dr. Godard saw Plaintiff the following week, Plaintiff was irritable, anxious, and
angry. Tr. 246. Dr. Godard discussed Dr. Veith’s report with Plaintiff and “let her know that I
don’t think she has been malingering.” Id.
In a progress note dated August 4, 2005, Dr. Godard wrote that Plaintiff was still taking
Zoloft and Xanax and was able to go outside on her porch for short periods. Tr. 244. She
previously had not been able to go out. Id. On August 16, 2005, Dr. Godard noted that Plaintiff
could stay out on her front porch “a little bit.” Tr. 242. Dr. Godard met with Plaintiff at her
home on August 23, 2005. Tr. 240. Plaintiff reported that she had had contact with her daughter
for the first time in a year and a half, but soon after her daughter’s phone call, she became quite
depressed. Id. Dr. Godard wrote that Plaintiff had a new screen door on her house that had
allowed her to keep the door open. She had not gone out much, however. Id.
On October 18, 2005, Plaintiff told Dr. Godard the Zoloft was not working and that she
believed she was more irritable because of it. Tr. 238. Dr. Godard wrote that Plaintiff had a
“very hard time going through the movements of gradual desensitization.” Id. Although
Plaintiff’s efforts at getting outside the house had “often been quite significant,” [w]hen she fails
to feel comfortable in these experiences, she starts over again with her feelings of anxiety.” Id.
Dr. Godard wrote that Plaintiff “remains very incapacitated as far as being able to manage her
life right now. She has not made a great deal of progress since I first began to see her. . . .
[a]lthough she was for a while willing to work a little more on some of her issues of isolation.”
Id. Dr. Godard decided to discontinue the Zoloft. Id.
On November 4, 2005, Dr. Godard and Ms. Brown met Plaintiff at her home. Tr. 236.
Plaintiff said she felt a “little bit better” without the Zoloft. Id. Dr. Godard wrote that Plaintiff
Opinion and Order, Page 9
had been angry with her because “she feels that I have not understood her well and think that she
is not trying on her treatment. I have encouraged that a schedule be created in a very concrete
manner to look at her progress regarding her agoraphobia and anxiety.” Id. In a progress note
dated December 30, 2005, Dr. Godard wrote that she and Ms. Brown had discussed cognitive
therapy using a workbook on anxiety disorders for Plaintiff. Tr. 234. On April 28, 2006, Dr.
Godard wrote that Plaintiff had called to talk about applying for disability and wanted to know
whether Dr. Godard thought she was capable of working. Tr. 232. Dr. Godard responded that she
thought Plaintiff was currently unable to work and that “I could not foresee a time in the future
that she would be able to work.” Id. On November 2, 2006, Dr. Godard wrote that Plaintiff said
she had been raped a month earlier by “her previous friend,” and since that time had had anxiety,
PTSD symptoms with flashbacks, less sleep, depression, and lack of appetite. Tr. 230. Plaintiff
requested Ativan (lorazepam). Id.
On December 30, 2005, Dr. Godard and Ms. Brown met with Plaintiff in her home. Tr.
229. Plaintiff agreed to begin a workbook. Id. Ms. Brown wrote that after Dr. Godard left,
Plaintiff was angry because neither Dr. Godard nor Ms. Brown had “followed through” with
getting her hypnosis for her agoraphobia. Id. On January 13, 2006, Ms. Brown gave Plaintiff a
workbook and asked her to keep a journal about her reading and to do exercises to identify her
feelings. Tr. 228. On February 27, 2006, Ms. Brown wrote that Plaintiff appeared “quite
resistant” to the desensitization exercises and said the workbook had “done little good and in fact
has angered her.” Tr. 227. Ms. Brown wrote, “She chooses not to do the exercises that are
recommended and supported by this writer and Dr. Godard.” Id. On March 31, 2006, Ms. Brown
asked Plaintiff about her log for identifying and documenting her efforts at desensitization and
Opinion and Order, Page 10
Plaintiff became angry and argumentative. Tr. 226.
On May 1, 2006, Ms. Brown offered to give Plaintiff an additional session each month if
she came to the office. Tr. 225. Ms. Brown wrote, “This is a therapeutic intervention in the effort
to desensitize her by mere exposure.” Id. Plaintiff agreed to allow Ms. Brown to pick her up and
drive her to the grocery store in two days. Id. When Ms. Brown arrived to begin the “mere
exposure” therapy, Plaintiff was nervous but willing to try. Ms. Brown drove her to three errands
while Plaintiff remained in the car. Ms. Brown wrote, “It was obvious she was anxious as she
would shake her hands, and blow on them to dry them.” Id. Plaintiff reported feeling as though
she would be physically ill. Id. On May 16, 2006, Ms. Brown wrote that Plaintiff had said she
would not attend her son’s graduation on June 9, 2006. Tr. 223. She had tried a trial run to see if
two Ativan would allow her to manage, but the Ativan affected her vision. She felt that the
Xanax had lost some of its efficacy as well. Id. On August 24, 2006, Dr. Godard and Ms. Brown
completed a comprehensive evaluation of Plaintiff. Tr. 254. They wrote that Plaintiff continued
to have agoraphobia and panic attacks, with her symptoms having remained the same or
worsened somewhat over the past year. Id.
On October 13, 2006, Ms. Brown met with Plaintiff at home, writing that Plaintiff had
not made an appointment with Dr. Godard to discuss anxiety medication and was “choosing not
to do so as she feels she will not be able to endure the visit.” Tr. 222. Plaintiff was angry about
Dr. Godard and Ms. Brown’s clinical decision to offer her one home visit per month and weekly
clinical visits if she would come to the office. Id. Ms. Brown wrote, “It is very clear that office
visits would be difficult for her but not totally impossible. This is still part of her treatment
plan.” Id. After a home visit on October 27, 2006, Ms. Brown wrote that Plaintiff reported
Opinion and Order, Page 11
“having had an unconsensual sexual experience” someone named Sal, which she had reported to
the police. Tr. 221. Plaintiff did not feel that she could come to the clinic for an appointment
with Dr. Godard. Id.
On November 2, 2006, Ms. Brown wrote that Plaintiff had a telephone appointment with
Dr. Godard and was getting some Ativan because she could not tolerate the taste of Xanax. Tr.
220. Plaintiff reported contacting “her friend Bob” to tell him not to return to her home and
wanting to cut off all contact with males as she was “very hurt and angry with Sal.” Id. She did
not feel she could leave her home, but also felt she was not safe there. Id.
On November 30, 2006, Plaintiff told Ms. Brown she wanted her daughter choose who
would be with her during delivery of her child, as Plaintiff refused to be there with other family
members. Tr. 219. Plaintiff’s daughter said she wanted her mother, but Plaintiff was “unsure she
will be able to follow through.” Id. Her daughter was due to deliver May 11, 2007. Id.
On April 12, 2007, Dr. Godard and Ms. Brown wrote a letter on Plaintiff’s behalf stating
that Plaintiff was “too fearful to leave the immediate environment of her home,” and was unable
to do her own shopping, afraid to shower due to her fear that someone would enter her home and
assault her, and had “medical problems that have gone untreated due to severe anxiety of
someone touching her.” Tr. 260. They wrote that Plaintiff had “much family conflict and does
not develop new relationships;” that she was “socially isolated,” with “marked restrictions in
social and familial functioning; and that she had “significant problems with concentration” and
was forgetful. Tr. 261. They noted that her work history had been very limited and that she had
been unsuccessful in functioning at a level that would permit gainful employment. She had very
low stress tolerance and perspired profusely even during short in-home sessions with Dr. Godard
Opinion and Order, Page 12
and Ms. Brown. Id. They wrote that Plaintiff had described working at a mail express business
and being unable to keep the job because she was unable to concentrate. Id.
On April 16, 2007, Dr. Eriksen wrote a letter on Plaintiff’s behalf stating that Plaintiff
suffered from panic disorder with severe agoraphobia, major depressive disorder, and PTSD.
Tr. 262. Dr. Eriksen wrote that Plaintiff had also been diagnosed with generalized anxiety
disorder. Id. “She suffers from such severe anxiety and panic that she at times has difficulty
coming in to the clinic to be seen,” and “had home visits by the psychiatrist because of inability
to make it in to the mental health facility for treatment.” Id. Dr. Eriksen doubted that Plaintiff
would be able to attend the Social Security hearing. Id.
B.
Hearing Testimony
Plaintiff testified by telephone. The ALJ told Plaintiff’s attorney
I know you asked that the claimant be allowed to testify by phone, and what I
asked that they express to you was that I strongly preferred that she be here in
person. There is a huge credibility issue in this case, so her presence would make
a substantial difference, and apparently she’s not interested in being cooperative
on that point, so you want the hearing held by phone. Is that it?
Tr. 281. When Plaintiff came on the phone, the ALJ told Plaintiff,
I tried to explain to your attorney that in this case your presence is almost crucial
to the case because credibility is a major issue in the case, so the fact that you’re
not willing to be here is a negative from my point of view in terms of your being
able to prevail in the case. Do you understand that?
Tr. 283. Plaintiff responded that it was “not a matter of choice.” Id.
Plaintiff testified that she was unable to work because she had panic attacks and was
unable to leave her house. Tr. 295. She said her first panic attack was in 1993, id., when she was
also diagnosed with agoraphobia. Tr. 296. She said “things just went downhill” when she was in
community college, after she caught a teacher stealing and the same teacher poisoned her with
Opinion and Order, Page 13
barium carbonate. Id. She said she was unable to attend her own graduation, or those of her son
and daughter, and that she had been unable to see her first grandchild, born a week before the
hearing. Tr. 297. She was not currently taking medication, because none of the medication she
tried had worked for her. Tr. 297-98. She last saw Dr. Godard at her home in the summer of
2006. Tr. 298. Plaintiff testified that she had not seen Dr. Godard since then because “there was
no reason to,” adding “it doesn’t work.” Id. Plaintiff testified that both Dr. Godard and Ms.
Brown had told her they were unable to help her. Tr. 299.
Plaintiff testified that she had not been to a grocery store in over two years. Tr. 304. She
was able to dress and groom herself, tr. 306, perform household chores, and cook. Tr. 307. She
had panic attacks “almost on a daily basis.” Id. She did not attend church or club meetings, id.,
and saw friends at her house. Tr. 309. She gave a baby shower for her daughter in March 2007 at
her house with about 20 guests. Tr. 309. She did some craft activities at home. Id. She had a
computer and used the internet. Tr. 310. She had not driven a car for the past two years. Tr. 311.
She did not go to movies or restaurants. Id.
The ALJ called vocational expert (“VE”) Patricia Ayerza. Tr. 313. The ALJ asked the VE
to consider whether an individual of Plaintiff’s age, education, and past relevant work
experience, able to do simple tasks involving occasional social interaction, would be able to do
any of Plaintiff’s past relevant work. Tr. 318. The VE responded that the individual could return
to the work Plaintiff described as shipping clerk, performed at an art gallery between 1992 and
1996, and characterized by the VE as a packager position. Tr. 316, 317, 319. The VE opined that
there were other jobs Plaintiff could do within the ALJ’s hypothetical, including small products
assembly, cannery worker, and agricultural produce sorter. Tr. 320.
Opinion and Order, Page 14
C.
Third-Party Evidence
Dorothy Brown, Plaintiff’s mother, reported in a third-party statement dated October 30,
2004, that Plaintiff was able to clean house, cook, care for the family pets, and help her son with
his homework. Tr. 74. Ms. Brown also reported that Plaintiff was no longer able to go places by
herself or visit family and friends at their houses. Id. According to Ms. Brown, Plaintiff went
outside about two times a week, but was able to shop for food. Tr. 76, 77. Ms. Brown wrote that
Plaintiff did not handle stress or changes in routine well, and that she “really just wants to stay
home all the time.” Tr. 79.
In a letter dated April 16, 2007, Ms. Brown wrote that Plaintiff had panic attacks “all the
time & never comes out of the house, when she does, she starts to turn so red & sweat really bad,
than [sic] it’s time to get her out of wherever she is at.” Tr. 130. Ms. Brown stated that Plaintiff
“hardly even talks to anyone as she says there is nothing to talk about.” Id.
Susie Koziol, a friend, wrote a letter on Plaintiff’s behalf dated April 13, 2007. Tr. 129.
Ms. Koziol wrote that she had observed Plaintiff succumbing to severe panic attacks. Id.
Ms. Koziol stated that she helped Plaintiff with grocery shopping, dropping off payments for
bills, “basically anything that requires her to be outside of her home.” Id. “Laura even struggles
to take out the trash, and for the most part has to rely on visits from her few trusted friends and
family to do it when they stop by.” Id.
Beth Stevenson, a housing specialist for the Housing Authority of Yamhill County, wrote
that she had known Plaintiff for five years as her case manager. Tr. 131. Ms. Stevenson wrote
that after Plaintiff completed college in June 2004, “I have never seen anyone change so much so
quickly.” Id. Ms. Stevenson wrote that Plaintiff was “so outgoing when I first met her. Now she
Opinion and Order, Page 15
is afraid to go out of her house, so I have to go to her home for our biannual meetings to update
her goals.” Id. Ms. Stevenson wrote, “It is sad to see how much Laura has changed and I truly
hope that someday soon she will be able to leave the safety of her home.” Id.
D.
The Sequential Evaluation
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. At step one, the Commissioner determines whether the claimant is engaging in any
substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, the Commissioner
proceeds to step two, to determine whether the claimant has a “medically severe impairment or
combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c),
416.920(c). That determination is governed by the “severity regulation,” which provides:
If you do not have any impairment or combination of impairments
which significantly limits your physical or mental ability to do
basic work activities, we will find that you do not have a severe
impairment and are, therefore, not disabled. We will not consider
your age, education, and work experience.
§§ 404.1520(c), 416.920(c). If the impairment is severe, the evaluation proceeds to the third step,
where the Commissioner determines whether the impairment meets or equals “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. If a claimant’s impairment meets or
equals one or more of the listed impairments, the claimant is considered disabled without
consideration of age, education or work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the impairment is considered severe, but does not meet or equal a listed impairment,
the Commissioner considers, at step four, whether the claimant can still perform “past relevant
Opinion and Order, Page 16
work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant shows an inability to perform past
work, the burden shifts to the Commissioner to show, in step five, that the claimant has the
residual functional capacity (“RFC”) to do other work in consideration of the claimant's age,
education and past work experience. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(f),
416.920(f).
E.
The ALJ’s Decision
The ALJ found, at step two, that Plaintiff’s anxiety disorder and depressive disorder were
severe impairments. Tr. 23. At step three, the ALJ concluded that these impairments, singly or in
combination, did not meet or medically equal any of the listed impairments. Id.
The ALJ found that Plaintiff’s statements about the intensity, persistence, and limiting
effects of her symptoms were not entirely credible. The ALJ found “little evidence of significant
difficulties with anxiety or other symptoms” at the time of the alleged onset date of June 2001.
Tr. 25. The ALJ noted that when seen by her treating physician in February 2002 she reported
panic attacks every one to two months, and using Xanax once a month. Id. The ALJ found that in
January 2004, although Plaintiff reported significant family and financial stressors, her last
prescription for Xanax had been in March 2003, when she received 20 tablets. Plaintiff refused
any medications other than Xanax. In February 2004, Plaintiff was encouraged to try Zoloft but
refused and did not begin taking Lexapro until May 2004. The ALJ discounted Plaintiff’s
testimony about agoraphobia because she had been able to complete her associate degree in June
2004 while working part-time. Tr. 25. The ALJ also found that Plaintiff had been resistant to
medications and Dr. Godard’s desensitization program and had refused to do workbook exercises
recommended by Dr. Godard and Ms. Brown or come to the office. Tr. 26.
Opinion and Order, Page 17
The ALJ gave great weight to the psychological evaluation performed by Dr. Veith in
October 2004 that had resulted in a diagnosis of malingering. Dr. Veith had noted
inconsistencies of performance that raised concerns about effort, scores on the MMPI 2 that were
indicative of symptom magnification and test invalidity, and Plaintiff’s dramatic and histrionic
presentation. Dr. Veith had also noted Plaintiff’s report that she was able to cook, clean, drive
and shop, and his own observation that attention and concentration were normal and thought
processes were organized. Tr. 25.
The ALJ rejected the third-party reports of Dorothy Brown, Susie Koziol, and Beth
Stevenson, on the ground that they were not “entirely credible in light of the evidence of
claimant’s daily activities,” including going to college, maintaining a work-study job, doing
crafts, giving a baby shower, and doing some shopping. Tr. 26. In addition, the ALJ noted that
Ms. Stevenson had reported significant community activities “until at least 2003.” Id.
The ALJ gave little weight to the opinions of Dr. Godard and Ms. Brown, concluding for
both that they were unaware of or had ignored the facts, and had been given misinformation by
Plaintiff. Tr. 26, 27. The ALJ noted that Dr. Godard had written that Plaintiff left a job at Mail
Express because of stress when Plaintiff testified that she left the job because she took another,
and that Dr. Godard had indicated a limited work history for Plaintiff when her earnings record
reflected 10 years of steady employment. Tr. 26. The ALJ found that Dr. Godard and Ms. Brown
had “apparently relied on the claimant’s self-report in reaching their opinion that she is unable to
work.” Because the ALJ had found Plaintiff not credible, she rejected the opinions of Dr. Godard
and Ms. Brown because they had relied on Plaintiff’s own reports. Tr. 27.
The ALJ rejected Dr. Eriksen’s opinion that Plaintiff was unable to pursue activities
Opinion and Order, Page 18
outside her home on the grounds that Dr. Eriksen was not a psychiatrist and her opinion was not
consistent with the evidence that Plaintiff had attended community college, worked part-time,
and obtained a degree between 2003 and 2004. Tr. 27. In addition, the ALJ noted, Plaintiff
received medical treatment when needed, including treatment for back pain and gallbladder
surgery.10 Id. The ALJ concluded that the opinions of Dr. Eriksen, like those of Dr. Godard and
Ms. Brown, were entitled to little weight because they were based on Plaintiff’s self-reports.
The ALJ relied on the opinion of reviewing psychologist Dr. Rethinger that Plaintiff was
capable of simple work, precluded from work with the public, but able to get along with workers
and supervisors. Tr. 27. The ALJ found Dr. Rethinger’s opinion “generally consistent with the
treatment records and evidence of claimant’s daily activities.” Tr. 27. Accordingly, at step four,
the ALJ found Plaintiff was capable of performing past relevant work as a packager. Id.
III. STANDARD OF REVIEW
The Court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Meanel v. Apfel,
172 F.3d 1111, 1113 (9th Cir. 1999). In determining whether the Commissioner's findings are
supported by substantial evidence, the Court must review the administrative record as a whole,
weighing both the evidence that supports and the evidence that detracts from the Commissioner's
conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner's decision
must be upheld even if “the evidence is susceptible to more than one rational interpretation.”
Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
10
The record indicates that Plaintiff agreed to gallstone surgery on October 28, 2005, tr.
267, but did not keep her appointment for a post-operative visit. Tr. 266.
Opinion and Order, Page 19
The initial burden of proving disability rests on the claimant. Meanel, 172 F.3d at 1113.
To meet this burden, the claimant must demonstrate an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
. . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]”
42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). This means an
impairment must be medically determinable before it is considered disabling.
IV. DISCUSSION
Plaintiff asserts that the ALJ erred by: (1) rejecting the testimony of the lay witnesses
without providing reasons germane to each witness; (2) rejecting the 2007 opinions of treating
physicians Eriksen and Godard, and those of Ms. Brown, in favor of the 2004 opinions of
nonexamining physicians; (3) ignoring limitations identified by Doctors Eriksen and Godard and
Ms. Brown in determining Plaintiff’s RFC; (4) failing to consider Plaintiff’s panic attacks and
agoraphobia in determining her RFC; and (5) assigning significant weight to Dr. Rethinger’s
2004 opinion that Plaintiff could frequently interact with coworkers and supervisors.
The court concludes that these asserted errors arise primarily from the fact that the ALJ’s
June 2007 decision, rejecting the opinions of Dr. Eriksen and Dr. Godard, rejecting the thirdparty statements, finding Plaintiff not credible, and relying on Dr. Rethinger for the RFC finding,
relies upon evidence that existed before January 2005. Nearly all of the ALJ’s factual findings
rest on: (1) the evidence that Plaintiff attended community college and worked part-time in 2003
and 2004; (2) Dr. Veith’s psychological evaluation of October 2004 concluding that Plaintiff was
Opinion and Order, Page 20
malingering; and (3) Dr. Rethinger’s assessment of December 2004. The ALJ rejected or
disregarded all the evidence after December 2004, including the 2007 opinions of Doctors
Eriksen and Godard with respect to Plaintiff’s agoraphobia and panic attacks, the progress notes
from Dr. Godard and Ms. Brown for 2006 and 2007, and the third-party reports submitted in
2007.
The court concludes that the ALJ’s findings with respect to disability are free of legal
error and supported by substantial evidence only through December 2004. The ALJ’s findings
with respect to disability after December 2004 are neither legally correct nor supported by
substantial evidence in the record. The absence of evidentiary support for the ALJ’s findings on
disability after December 2004 is particularly striking with respect to the opinions of Doctors
Godard and Eriksen.
There are three sources of medical opinions in Social Security cases: treating, examining,
and non-treating, non-examining (“reviewing”) physicians. Holohan v. Massanari, 246 F.3d
1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); 20 C.F.R. §
404.1527(d). Generally, a treating physician’s opinion carries more weight than that of an
examining physician, and an examining physician’s opinion carries more weight than that of a
reviewing physician. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(d). In addition, the
regulations give more weight to the opinions of specialists concerning matters relating to their
specialty over those of nonspecialists. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(d)(5).
In general, the most recent medical report is the most probative, see Young v. Heckler, 803 F.2d
963, 968 (9th Cir. 1986), and a treating physician's most recent medical reports are highly
probative. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).
Opinion and Order, Page 21
Under these standards, the 2004 opinions of reviewing psychologist Dr. Rethinger and
examining psychologist Dr. Veith were entitled to significantly less weight than the 2007
opinions of treating psychiatrist Dr. Godard and treating primary care physician Dr. Eriksen.
Although Dr. Rethinger and Dr. Reith are psychologists, their specialties do not, as the ALJ
erroneously found, entitle their opinions to greater weight than that of general practitioner Dr.
Eriksen, because a medical doctor is also qualified to give psychiatric opinions. Sprague v.
Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (duly licensed primary care physician can practice
and render psychiatric services and give a qualified opinion on how claimant’s mental state
impacts physical disability); Lester, 81 F.3d at 833 (ALJ cannot disregard treating physician’s
opinion on claimant’s mental functioning solely because treating physician not a mental health
expert; treating physician’s opinion constituted competent psychiatric evidence, notwithstanding
the fact that physician was not a board-certified psychiatrist).
As a general rule, the opinions of treating physicians, even when contradicted by other
evidence, may be rejected only if the ALJ provides “specific and legitimate” reasons supported
by substantial evidence in the record. Holohan, 246 F.3d at 1202; Lester, 81 F.3d at 830. The
treating physician’s opinion is still entitled to deference and must be weighted using all the
factors provided in 20 C.F.R. § 404.1527. Holohan, 246 F.3d at 1202. See also Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“Adjudicators must remember that a finding that a
treating source medical opinion is . . . inconsistent with other substantial evidence in the case
record means only that the opinion is not entitled to ‘controlling weight,’ not that the opinion
should be rejected. . . . In many cases, a treating source’s medical opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet the test for controlling weight.”);
Opinion and Order, Page 22
Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (If treating physician’s opinion is not given
controlling weight because it is not “well supported” or because it is inconsistent with other
substantial evidence in the record, ALJ is to consider specified factors in determining the weight
it will be given, including the length of the treatment relationship, frequency of examination, and
nature and extent of the treatment relationship.)
The opinion of a non-examining physician cannot by itself constitute substantial evidence
that justifies rejection of the opinion of either an examining physician or a treating physician.
Lester, 81 F.3d at 831-32. Thus, the opinion of a non-examining medical expert, with nothing
more, is not substantial evidence sufficient to support a finding where the record contains
conflicting observations, opinions and conclusions of an examining physician. Stark v. Shalala,
886 F. Supp. 733, 735 (D. Or. 1995); Erickson v. Shalala, 9 F.3d 813 (9th Cir. 1993).
The ALJ found Dr. Rethinger’s opinions “generally consistent with the treatment
records,” but this statement is inaccurate. Dr. Rethinger’s opinions are not consistent with any of
the treatment records except possibly the opinion of Dr. Veith, and the opinions of Doctors
Rethinger and Veith are contradicted by the later opinions of treating practitioners Dr. Eriksen
and Dr. Godard. Dr. Rethinger’s opinion does not constitute substantial evidence to support the
ALJ’s RFC finding.
Similarly, examining psychologist Dr. Veith’s 2004 opinions do not constitute evidence
with sufficient weight to justify the ALJ’s rejection of the more comprehensive, later opinions of
treating physicians Godard and Eriksen. Dr. Veith’s opinion that Plaintiff was a malingerer was
directly contradicted by the opinion of treating psychiatrist Dr. Godard that she was not. The
ALJ gave only two reasons for rejecting the opinions of Doctors Eriksen and Godard: (1) minor
Opinion and Order, Page 23
historical inconsistencies in Plaintiff’s employment record, which the court finds neither specific
to the question of disability nor based on substantial evidence in the record; and (2) reliance on
what the ALJ characterized as Plaintiff’s subjective complaints, which the ALJ had already
discounted. The ALJ’s latter finding is erroneous. The opinions of Doctors Eriksen and Godard
are amply supported by their clinical observations of Plaintiff over a period of over two years11,
as well as Plaintiff’s own reports of symptoms. “[A]n ALJ does not provide clear and convincing
reasons for rejecting an examining physician’s opinion by questioning the credibility of the
patient’s complaints where the doctor does not discredit those complaints and supports his
ultimate opinion with his own observations.” Ryan v. Comm’r, 528 F.3d 1194, 1199 (9th Cir.
2008), citing Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001).
The ALJ improperly relied on evidence from 2003 and 2004 as her basis for rejecting the
third-party reports, all of which are dated 2007. Lay testimony as to a claimant's symptoms is
competent evidence which the Commissioner must take into account, Dodrill v. Shalala, 12 F.3d
915, 919 (9th Cir. 1993), unless he or she expressly decides to disregard such testimony, in
which case “he must give reasons that are germane to each witness.” Id. See also Lewis v. Apfel,
11
See, e.g., tr. 252 (Dr. Godard’s observation at first visit that Plaintiff “very, very
anxious. Her palms are cold and sweaty. . . [s]he is not able to sit down”); tr. 246 (Dr. Godard’s
observation that Plaintiff was irritable, anxious, depressed, and angry); tr. 226 (Ms. Brown’s
observation that Plaintiff was angry and argumentative); tr. 225 (Ms. Brown’s observation that
Plaintiff was nervous and obviously anxious “as she would shake her hands, and blow on them to
dry them”); tr. 254 (observation of both Dr. Godard and Ms. Brown that Plaintiff was irritable
and defensive); tr. 236 (Dr. Godard’s observation that Plaintiff’s speech was “often dramatic and
sometimes loud but of normal rate and rhythm,” “[l]atencies are normal,” thoughts “generally
goal directed although sometimes . . . a little circumferential,” mood “a little angry and also
anxious,” and affect “more irritable today.”); tr. 240 (Dr. Godard’s observation that Plaintiff’s
mood “currently depressed” and “she does get tearful”); tr. 242 (Dr. Godard’s note that Plaintiff
showed a “great deal of anxiety”).
Opinion and Order, Page 24
236 F.3d 503, 511 (9th Cir. 2001) and Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). The
ALJ’s stated reason for rejecting all three reports was their inconsistency with Plaintiff’s daily
activities, but these activities were going to college and maintaining a work-study job in 20032004 and community activities “until at least 2003.” The court concludes that the ALJ’s rejection
of the third-party reports is not based on reasons germane to each witness and is not supported
by substantial evidence in the record.
In Lester, 81 F.3d at 834, the court held that where the Commissioner fails to provide
adequate reasons for rejecting the opinion of a treating or examining physician, the court credits
that opinion as a matter of law. See also Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004) and
Moisa v. Barnhart, 367 F.3d 882 (9th Cir. 2004) (court takes the relevant testimony to be
established as true and remands for an award of benefits). In Smolen v. Chater, 80 F.3d 1273,
1292 (9th Cir. 1996), the court held that evidence should be credited and an immediate award of
benefits directed when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting
the opinion of a treating or examining physician, (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.
The court concludes that the ALJ’s improper rejection of the opinions of Doctors Eriksen
and Godard requires that they be credited. Crediting the opinions of Doctors Eriksen and Godard
necessarily invalidates the ALJ’s sequential analysis findings beginning with step two. Because
the ALJ failed to provide legally sufficient reasons for rejecting the opinions of the third-party
witnesses, their testimony must also be credited as true. It, therefore, follows that Plaintiff must
be found disabled. On this record, however, an issue remains with respect to the onset of
Opinion and Order, Page 25
Plaintiff’s disability. As noted, the ALJ’s finding of non-disability between the alleged onset
date, June 2001, and the end of 2004, is free of legal error and based on substantial evidence in
the record, while the ALJ’s finding of non-disability after 2004 is erroneous and unsupported by
substantial evidence. Accordingly, this case is remanded for further administrative proceedings
to determine the onset of Plaintiff’s disability.
V. CONCLUSION
The Commissioner’s decision is affirmed with respect to the period between the alleged
onset date, June 2001, and December 2004. The Commissioner’s decision is reversed and
remanded for further proceedings to determine the onset date of Plaintiff’s disability, at which
the opinions of Doctors Eriksen and Godard, and the testimony of the third-party witnesses, are
to be credited as true.
IT IS SO ORDERED.
DATED this 16th day of March, 2012.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
Opinion and Order, Page 26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?