Allen v. Commissioner, Social Security Administration
Filing
18
Opinion and Order - The Commissioner's decision is REVERSED and the case is REMANDED. Signed on 7/17/12 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JANICE C. ALLEN,
Case No.: 6:11-cv-06167-SI
Plaintiff,
OPINION AND ORDER
v.
MICHAEL ASTRUE, Commissioner
Social Security Administration,
Defendant.
Donald Reeder, Glenn, Reeder & Gassner, LLP, 205 SE 5th Street, Madras, OR 97741.
Attorneys for Plaintiff.
S. Amanda Marshall, United States Attorney, and Adrian L. Brown, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 SW Third Avenue, Suite
600, Portland, OR 97201; Summer Stinson, Special Assistant United States Attorney, Office of
the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A,
Seattle, WA 98104. Attorneys for Defendant.
SIMON, District Judge.
I. INTRODUCTION
Plaintiff Janice C. Allen (“Ms. Allen”) brings this action under 42 U.S.C. § 405(g),
seeking review of a final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her application for disability insurance benefits (“DIB”). The court
has jurisdiction under 42 U.S.C. § 405(g). Ms. Allen argues that the Administrative Law Judge
(“ALJ”) improperly discredited certain medical evidence and her testimony and failed to
consider her depression and emphysema in the ALJ’s analysis of Ms. Allen’s residual functional
capacity. The court agrees. Accordingly, the decision of the Commissioner is reversed and the
case is remanded for further proceedings consistent with the instructions herein.
II. BACKGROUND
Ms. Allen has worked as an office clerk, tree planter, cleaner, and dog breeder and
trainer. Tr. 125. In January 2007, at the age of 51, she applied for DIB. Tr. 98-101. Ms. Allen
asserts that she is disabled as a result of chronic headaches, neck and back pain, depression, and
emphysema. Tr. 38-50; Pl.’s Br. at 4-5. After the Commissioner denied her application initially
and on reconsideration, Ms. Allen requested a hearing before an ALJ. Tr. 71-86. ALJ John J.
Madden Jr. held a hearing on September 3, 2009. Tr. 27-68. Following the hearing, the ALJ
issued a written decision denying benefits. Tr. 16-25. The Appeals Council denied Ms. Allen’s
request for review, making the ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
Ms. Allen now requests judicial review of that decision.
Ms. Allen alleges that she been unable to work since January 1, 2002. Tr. 98. She last
reported earnings in 1999. Tr. 33-34; 102. Based on her earnings through 1999, Ms. Allen has
obtained sufficient quarters of coverage to remain insured through December 31, 2004. Tr. 16;
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102-07. Thus, in order to be eligible for DIB, Ms. Allen must establish that she became disabled
between January 1, 2002 and December 31, 2004 (hereinafter the “relevant period”). See 20
C.F.R. §§ 404.130, 404.131; Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) (to be “entitled
to disability benefits, [the claimant] must establish that her disability existed on or before” her
last insured date).
III. DISABILITY DETERMINATION AND STANDARDS
A.
Legal Standards for Determination of Disability
A claimant is disabled if he or she 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 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Commissioner, 648 F.3d 721, 724 (9th Cir. 2011). The five steps in the process
proceed as follows:
1.
Is the claimant presently working in a substantially gainful activity? If so, then the
claimant is not disabled within the meaning of the Social Security Act. If not, proceed
to step two. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
2.
Is the claimant’s impairment severe? If so, proceed to step three. If not, then the
claimant is not disabled. See 20 C.F.R. §§ 404.1520(c), 416.920(c).
3.
Does the impairment “meet or equal” one or more of the specific impairments
described in 20 C.F.R. Pt. 404, Subpt. P, App. 1? If so, then the claimant is disabled.
If not, proceed to step four. See 20 C.F.R. §§ 404.1520(d), 416.920(d).
4.
Is the claimant able to do any work that he or she has done in the past? If so, then the
claimant is not disabled. If not, proceed to step five. See 20 C.F.R. §§ 404.1520(e),
416.920(e).
5.
Is the claimant able to do any other work? If so, then the claimant is not disabled. If
not, then the claimant is disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f).
Page 3 – OPINION AND ORDER
Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof for the first four steps in the process. Id. at 953;
see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). The Commissioner bears the burden of
proof at step five of the process, where the Commissioner must show the claimant can perform
other work that exists in significant numbers in the national economy, “taking into consideration
the claimant’s residual functional capacity, age, education, and work experience.” Tackett v.
Apfel,180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. § 404.1566 (describing “work
which exists in the national economy”). If the Commissioner fails to meet this burden, then the
claimant is disabled. If, however, the Commissioner proves that the claimant is able to perform
other work that exists in significant numbers in the national economy, then the claimant is not
disabled. Bustamante, 262 F.3d at 953-54.
B.
The ALJ’s Decision
The ALJ applied the Commissioner’s five-step sequential disability determination
process set forth in 20 C.F.R. § 404.1520, and described above. The ALJ agreed that Ms. Allen
had not engaged in substantial gainful activity during the relevant period. Tr. 18. Accordingly,
the ALJ found that Ms. Allen satisfied step one. Id.
At step two, the ALJ found that Ms. Allen suffered from cervical degenerative disc
disease status post fusion and headaches. Id. Thus, Ms. Allen satisfied step two.
At step three, the ALJ found that through the date she was last insured, Ms. Allen did
“not have an impairment or combination of impairments that met or medically equaled one of the
listed impairments[.]” Tr. 20. The ALJ, thus, proceeded to step four.
The fourth and fifth steps require the ALJ to determine how the claimant’s impairments
affect the claimant’s ability to perform work. To make this determination, the ALJ formulates the
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claimant’s residual functional capacity (“RFC”). An RFC “is the most [the claimant] can still do
despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). An RFC “is used at step 4 of the
sequential evaluation process to determine whether an individual is able to do past relevant work,
and at step 5 to determine whether an individual is able to do other work, considering his or her
age, education, and work experience.” Social Security Ruling (“SSR”) 96-8p.1 The ALJ found
that through the date she was last insured, Ms. Allen had an RFC to perform light work, subject
to only “occasional overhead reaching with the bilateral upper extremities.” Tr. 20.
After the ALJ has formulated the claimant’s RFC, the ALJ must consider whether the
claimant can, in light of that RFC, perform past or other work. To do so, the ALJ may rely on the
testimony of a vocational expert (“VE”). 20 C.F.R. §§ 404.1560(b)(2) and 404.1566(e).
Typically, the ALJ asks the VE whether, given certain hypothetical assumptions about the
claimant’s capabilities, “the claimant can perform certain types of jobs, and the extent to which
such jobs exist in the national economy.” Burkhart v. Bowen, 856 F.2d 1335, 1340 n.3 (9th
Cir. 1988). In response, the “VE must identify a specific job or jobs in the national economy
having requirements that the claimant’s physical and mental abilities and vocational
qualifications would satisfy.” Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001). The
job must exist “in significant numbers either in the region where [the claimant] live[s] or in
several other regions of the country.” 20 C.F.R. § 404.1566(a).
The ALJ called a VE to testify during the administrative hearing. Tr. 62-67. The ALJ
asked the VE to consider a hypothetical claimant with restrictions similar to those formulated for
Ms. Allen’s RFC. The VE replied that a person with those restrictions would be able to perform
1
The Commissioner publishes rulings to clarify the Social Security Administration's
regulations and policy. See Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir.1991) (en banc ).
Although they do not carry the force of law, SSRs are binding on an ALJ. Bray v. Comm’r, 554
F.3d 1219, 1224 (9th Cir. 2009).
Page 5 – OPINION AND ORDER
the work of an office clerk, an assembler, a bakery worker, and a laminating machine operator.
Tr. 65. The ALJ also asked the VE to consider a hypothetical claimant “who is bedridden for 12
months.” Tr. 66. The VE agreed that a hypothetical claimant who was bedridden for 12 months
would be unable to perform any of the four occupations he had identified. Tr. 66.
Based on the VE’s testimony, the ALJ found that through the date she was last insured,
Ms. Allen “was capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.” Tr. 24. The ALJ thus concluded that Ms. Allen was not
disabled. Tr. 24-25.
IV. STANDARD OF REVIEW
The court must affirm the Commissioner’s decision if it is based on the proper legal
standards and the findings are supported by substantial evidence. Hammock v. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Where the evidence is susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. Sample v. Schweiker, 694 F.2d
639, 642 (9th Cir. 1982).
V. DISCUSSION
Ms. Allen argues that the ALJ: (1) failed to ask the VE a hypothetical question based on
the evidence in the record; (2) erroneously discredited certain medical evidence; (3) erroneously
discredited Ms. Allen’s testimony; and (4) failed to properly consider Ms. Allen’s depression and
emphysema. The court agrees with Ms. Allen’s second, third, and fourth arguments. The
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Commissioner failed to properly evaluate certain medical evidence, improperly discredited
Ms. Allen’s testimony, and failed to address Ms. Allen’s claimed depression.
A.
Hypothetical Question
Ms. Allen’s first argument appears to be the ALJ’s hypothetical question to the VE was
not supported by substantial evidence. Pl.’s Br. at 12-14. Ms. Allen argues that the ALJ did not
credit her testimony and evidence from Dr. David Schloesser, Dr. Inice Gough, and Dr. Kathryn
Kocurek and incorporate that evidence into the ALJ’s formulation of his hypothetical question to
the VE. Pl.’s Br. at 13-14. This argument appears to be derivative of Ms. Allen’s other
arguments; that is, if Ms. Allen is correct that the ALJ erred by improperly discrediting her
testimony and evidence from Dr. Schloesser, Dr. Gough, and Dr. Kocurek, then the ALJ also
erred in failing to incorporate that evidence into the hypothetical question. Because Ms. Allen’s
arguments regarding her testimony and evidence from Dr. Schloesser, Dr. Gough, and Dr.
Kocurek—discussed in greater detail below—are dispositive, it is unnecessary to separately
consider this argument.
B.
Medical evidence
Ms. Allen argues that the ALJ failed to provide clear and convincing reasons for rejecting
the opinions of Dr. David Schloesser, Dr. Inice Gough, and Dr. Kathryn Kocurek. Pl.’s Br. at 1418. An ALJ must determine the weight to give each source of evidence. 20 C.F.R. § 404.1527(d),
(f). Opinions from “acceptable medical sources”—such as licensed medical doctors like Dr.
Schloesser and Dr. Kocurek—may generally be accorded more weight than those from “other
sources”—such as chiropractors like Dr. Gough. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.
1996); 20 C.F.R. § 404.1513. An ALJ may wholly or partially discount the opinion of any
source, but the regulations and Ninth Circuit case law establish specific standards that an ALJ
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must apply in order to do so. See 20 C.F.R. § 404.1527 (standards for evaluating medical
opinions); Lester v. Chater, 81 F.3d 821, 830-33 (9th Cir. 1995) (standards for evaluating
acceptable medical sources); Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (standards
for evaluating other sources). An ALJ may only reject the opinion of a doctor who has examined
a claimant in favor of the differing opinion of a non-examining doctor if the ALJ “gives specific,
legitimate reasons for doing so, and those reasons are supported by substantial record evidence.”
Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995).
1. Dr. David Scholesser
Dr. Schloesser treated Ms. Allen for headaches during the relevant period. Tr. 723-39.
Dr. Schloesser’s treatment notes were part of the record before the ALJ, but Dr. Schloesser did
not submit a formal opinion regarding Ms. Allen’s medical condition or capacity for work before
the ALJ issued his decision on October 30, 2009. Dr. Schloesser’s notes reveal that Ms. Allen’s
headaches continued throughout her treatment, although they decreased in intensity. See, e.g.,
Tr. 725-28, 730. The ALJ discussed Dr. Schloesser’s treatment notes. Contrary to Ms. Allen’s
argument, the ALJ did not discount Dr. Schloesser’s notes. See Tr. 21. Accordingly, the ALJ did
not commit error here.
After the ALJ issued his written decision on October 30, 2009, Ms. Allen submitted a
letter from Dr. Schloesser, dated December 7, 2009, to the Commissioner’s Appeals Council.
Tr. 841. This court must consider new evidence submitted to the Appeals Council when
reviewing the ALJ’s decision. Brewes v. Comm’r of Soc. Sec. Admin., No. 11–35216, 2012 WL
2149465 *4 (9th Cir. June 14, 2012) (“when the Appeals Council considers new evidence in
deciding whether to review a decision of the ALJ, that evidence becomes part of the
administrative record, which the district court must consider when reviewing the Commissioner's
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final decision for substantial evidence”).2 Dr. Schloesser’s letter briefly describes Ms. Allen’s
history of headaches and her medications and other treatments, but does not contain new
evidence not already recorded in Dr. Schloesser’s treatment notes. Although Dr. Schloesser’s
letter states that Ms. Allen’s headaches “have been disabling,” he does not provide an
explanation for this conclusion or discuss how Ms. Allen’s headaches have impaired her
functional capacity. See Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (“the
regulations give more weight to opinions that are explained than to those that are not”).
Furthermore, the determination of whether a claimant is disabled is reserved for the
Commissioner. 20 C.F.R. § 404.1527(d)(1) (“A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will determine that you
are disabled.”). As such, Dr. Schloesser’s letter neither alters the evidence recorded in his
treatment notes nor commands a finding of disability.
2. Dr. Inice Gough
Dr. Gough, a chiropractor, treated Ms. Allen from November 2002 through March 2003.
Her treatment notes reveal that Ms. Allen suffered from headaches, and neck and lower back
pain. Tr. 222-89. The ALJ did not discuss or comment on any of Dr. Gough’s treatment notes.
Although chiropractors are not an “acceptable medical source” that can establish the existence of
an impairment, they are, however, a competent source that the ALJ must consider when
assessing the severity of a claimant’s impairments. 20 C.F.R. §§ 404.1513(a), (d) and
2
Although this court must consider evidence submitted to the Appeals Council, the court
does not review the decision of the Appeals Council. When the Appeals Council declined to
review Ms. Allen’s case, the ALJ’s decision—not the Appeals Council’s decision—became the
final decision of the Commissioner. Tr. 1. This court only has jurisdiction to review the final
decision of the Commissioner. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th
Cir. 2011) (“[W]e have no jurisdiction to review the Appeals Council’s decision denying [the
claimant’s] request for review. That is, we may neither affirm nor reverse the Appeals Council’s
decision.”).
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404.1529(a) (in “evaluating the intensity and persistence of your symptoms, including pain, we
will consider all of the available evidence”). Dr. Gough treated Ms. Allen on dozens of occasions
in 2002 and 2003 and her notes are competent evidence that may not be disregarded without
comment. See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (“Disregard of this
evidence violates the Secretary’s regulation that he will consider observations by non-medical
sources as to how an impairment affects a claimant’s ability to work.”); Molina v. Astrue, 674
F.3d 1104, 1111 (9th Cir. 2012) (“The ALJ may discount testimony from . . . other sources
[under § 404.1513(d)] if the ALJ gives reasons germane to each witness for doing so.” (emphasis
added; internal quotation marks omitted)). Accordingly, the ALJ erred in failing to evaluate
Dr. Gough’s notes.
Like Dr. Schloesser, Dr. Gough submitted a letter regarding Ms. Allen to the Appeals
Council. Tr. 848. Dr. Gough’s letter does not contain new evidence not already recorded in her
treatment notes. Dr. Gough’s letter states that Ms. Allen was “unable to work” because of her
symptoms. As discussed above, however, the determination of whether a claimant is able to
work is reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1) (“A statement by a medical
source that you are ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will
determine that you are disabled.”). Thus, Dr. Gough’s letter does not automatically warrant a
finding of disability.
3. Dr. Kathryn Kocurek
Dr. Kocurek has been Ms. Allen’s primary care physician since December 1, 2003.
Tr. 787-89. Ms. Allen visited Dr. Kocurek six times during the relevant period. Tr. 781-89. Dr.
Kocurek’s treatment notes from those visits reveal that Dr. Kocurek assessed Ms. Allen as
suffering from chronic pain syndrome, Tr. 782, 787, chronic neck pain, Tr. 786, back pain,
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Tr. 784, migraine headaches, Tr. 782, 784, 788, and depression, including suicidal ideation,
Tr. 785-86. In a letter from October 2009, Dr. Kocurek stated that Ms. Allen “was overwhelmed
with depression secondary to chronic pain and had suicidal ideation in January 2004.”3 Tr. 836.
Dr. Kocurek concluded that it “is my professional opinion that Ms. Allen is completely and
permanently disabled secondary to severe degenerative changes of the spine with chronic pain
syndrome and depression. Her situation has not substantially changed since I met her in
December 2003[.]” Tr. 837.
The ALJ gave Dr. Kocurek’s letter “little weight” because “Dr. Kocurek’s opinion is
inconsistent with the objective medical evidence, which shows, as noted above, that the
claimant’s symptoms improved after surgery and with treatment.” Tr. 22. This conclusory
assessment is insufficient to discredit a treating physician’s medical opinion. “To say that
medical opinions are not supported by sufficient objective findings or are contrary to the
preponderant conclusions mandated by the objective findings does not achieve the level of
specificity our prior cases have required. . . . The ALJ must do more than offer his conclusions.
He must set forth his own interpretations and explain why they, rather than the doctors’, are
correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). The ALJ failed to specifically
identify any evidence contradicting Dr. Kocurek’s letter. Moreover, the ALJ failed to discuss any
of Dr. Kocurek’s detailed treatment notes, which formed the basis for her 2009 letter. These
failures are particularly glaring given that Dr. Kocurek was Ms. Allen’s primary care physician
between December 2003 and December 2004 and Dr. Kocurek examined Ms. Allen in person six
3
Unlike Dr. Schloesser and Dr. Gough, Dr. Kocurek submitted her first letter, dated
October 1, 2009, before the ALJ issued his decision on October 30, 2009. Tr. 836-37. The ALJ’s
decision expressly mentions this letter. Tr. 22. After the ALJ issued his decision, Dr. Kocurek
submitted another letter, on December 15, 2009, to the Appeals Council discussing the ALJ’s
decision. Tr. 842-44. The December 15, 2009 letter contains substantially the same factual
information and medical conclusions as the October 1, 2009 letter.
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times during this period. See Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“the treating
physician’s opinion as to the combined impact of the claimant’s limitations—both physical and
mental—is entitled to special weight”).
In addition, the court disagrees that Dr. Kocurek’s letter is wholly inconsistent with the
medical evidence, including her own treatment notes from the relevant period. Dr. Kocurek’s
treatment notes show that Ms. Allen suffered from chronic pain, headaches, and depression even
after her April 9, 2003, surgery and during her ongoing treatment. Tr. 781-89. In a note dated
October 12, 2004, Dr. Kocurek recorded that Ms. Allen “is unable to work secondary to spinal
pain and headaches.” Tr. 781. Dr. Kocurek noted that Ms. Allen’s depression and headaches had
improved, but she still assessed Ms. Allen as suffering from migraines, neck pain, and chronic
back pain. Id. In a note dated January 20, 2004, Dr. Kocurek wrote that Ms. Allen was “tearful
and anxious.” Tr. 786. Dr. Kocurek also wrote that Ms. Allen “agrees to call should her suicidal
ideation become intensional with a plan.” Id. Throughout the relevant period, Dr. Kocurek’s
treatment notes consistently recorded assessments of headaches and chronic pain. Tr. 781-89.
Medical evidence from other sources also supports some of Dr. Kocurek’s letter.
Dr. David Schloesser’s treatment notes from 2004 demonstrate that although the intensity of
Ms. Allen’s headaches decreased, Ms. Allen continued to suffer from headaches “daily.” Tr. 725;
see Tr. 724-38. Moreover, Dr. Schloesser reported that Ms. Allen’s headaches “accelerated” in
the two weeks before December 21, 2004. Tr. 723. Dr. Brad Ward’s treatment note from
December 2003, reported that Ms. Allen “still continues to struggle with some neck pain” even
though it had improved after surgery. Tr. 419. He also noted that Ms. Allen “still struggles with
headaches” and he stated that Ms. Allen “did not do well with physical therapy and did not get
much relief in her symptoms.” Tr. 419. Physical Therapist Jonathan Sampson reported in July
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2004 that Ms. Allen “states that she has been very painful during the last week, with left sidesided headache, left neck pain, left upper trapezius pain, left arm pain, left low back pain, and
left leg pain.” Tr. 318. Although Mr. Sampson noted that Ms. Allen was “significantly better
than at the time of the evaluation,” he also stated that Ms. Allen “has stopped improving
subjectively.” Id.
In light of this evidence, the ALJ’s finding that Dr. Kocurek’s opinion is entitled to little
weight is not based on specific reasons supported by substantial evidence and is error.4 See
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“A treating physician’s opinion on
disability, even if controverted, can be rejected only with specific and legitimate reasons
supported by substantial evidence in the record.”).
C.
Ms. Allen’s Testimony
Ms. Allen also argues that the ALJ erroneously discredited some of her testimony.5 Pl.’s
4
Although the ALJ failed to properly evaluate Dr. Kocurek’s opinion, there may be
good reasons—not discussed by the ALJ—to discount some of Dr. Kocurek’s conclusions. First,
it is unclear whether Dr. Kocurek’s assessment of Ms. Allen’s exertional capabilities applies to
the relevant time period. Dr. Kocurek’s treatment notes do not reveal that she assessed
Ms. Allen’s ability to sit, walk, stand, and lift before Ms. Allen’s insurance lapsed on December
31, 2004. Second, Dr. Kocurek’s conclusion that “Ms. Allen is completely and permanently
disabled” is not binding on the Commissioner. 20 C.F.R. § 404.1527(d)(1). The Commissioner
may consider these reasons on remand. The Commissioner may also wish to contact Dr. Kocurek
to ask her to clarify her opinion. See 20 C.F.R. § 404.1520b(c)(1).
5
The Commissioner asserts that Ms. Allen has not challenged the ALJ’s finding that
Ms. Allen’s testimony is not entirely credible. Def.’s Br. at 7 (“the ALJ properly found
Plaintiff’s statements regarding the extent of her impairments to be less than credible, a finding
unchallenged on appeal”). The court only considers “issues which are argued specifically and
distinctly in a party’s opening brief.” Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th
Cir. 1994) Although Ms. Allen does not identify a challenge to the ALJ’s determination that her
testimony lacked credibility under a separate heading in her opening brief, she raises the issue
under the heading contesting the ALJ’s evaluation of the medical evidence. Pl.’s Br. at 17.
Ms. Allen’s argument is neither entirely clear nor especially articulate. Nonetheless, Ms. Allen
states the correct standard for reviewing an ALJ’s findings regarding a claimant’s credibility,
cites two Ninth Circuit cases setting forth that standard, briefly describes her testimony, and
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Br. at 17. The Ninth Circuit has developed a two-step process for evaluating the credibility of a
claimant’s own testimony about the severity and limiting effect of the claimant’s symptoms.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ “must determine whether
the claimant has presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007). Second, “if the claimant meets the first test, and there is no
evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so.’” Lingenfelter,
504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). It is “not
sufficient for the ALJ to make only general findings; he must state which pain testimony is not
credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d
915, 918 (9th Cir. 1993).
Ms. Allen testified to experiencing ongoing, debilitating pain. She testified that “every
breath I take . . . my neck, my midback and my low back I get a stabbing” pain. Tr. 39. She
stated “I don’t think I ever go a month without having a few days in there that I’m locked in the
dark” because of a severe headache. Tr. 50. She also stated that although her 2003 fusion surgery
“did help the neck a bit,” it “did not alleviate the headache and the upper cervical pain and the
pain down in my shoulder[.]” Tr. 45. During the year following her surgery, Ms. Allen “couldn’t
do anything” and “mainly . . . never left the house except to go to doctors appointments.” Tr. 4546.
The ALJ directly addressed Ms. Allen’s credibility in only two sentences. First, the ALJ
found that the “claimant’s statements concerning the intensity, persistence and limiting effects of
explains that the ALJ disregarded some of that testimony. Id. As such, Ms. Allen’s argument is
sufficiently specific and distinct that this court must consider it.
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[her] symptoms are not credible to the extent they are inconsistent with the . . . residual
functional capacity assessment.” Tr. 21. As this court has noted before, this is a boilerplate
statement that has been used inappropriately in many Social Security decisions. See, e.g., Tilton
v. Astrue, No. 6:10-cv-1151-SI, 2011 WL 4381745 *12 n.5 (D. Or. Sept. 20, 2011). Similarly,
the Seventh Circuit has recently held that this boilerplate “is meaningless.” Shauger v. Astrue,
675 F.3d 690, 696 (7th Cir. 2012). “Credibility findings must have support in the record, and
hackneyed language seen universally in ALJ decisions adds nothing.” Id. The court agrees that
this boilerplate language does not provide specific, clear, and convincing reasons to discredit Ms.
Allen’s testimony.
Second, the ALJ found that the “overall record and objective medical evidence do not
support the alleged severity of the claimant’s symptoms and limitations[.]” Tr. 21. An ALJ,
however, “may not discredit the claimant’s testimony as to subjective symptoms merely because
they are unsupported by objective evidence.” Lester, 81 F.3d at 834. Moreover, although the ALJ
summarized portions of the medical evidence, the ALJ did not apply any of that medical
evidence to an analysis of Ms. Allen’s credibility. As such, the ALJ failed to “make a credibility
determination with findings sufficiently specific to permit the court to conclude that the ALJ did
not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th
Cir.2002); see also SSR 96-7p (“The determination or decision must contain specific reasons for
the finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual's statements and the reasons for that weight.”). The ALJ’s
finding discrediting Ms. Allen’s testimony is, therefore, error.
Page 15 – OPINION AND ORDER
D.
Depression and emphysema
Finally, Ms. Allen argues that the “ALJ did not consider [Ms. Allen’s] mental condition
for depression and anxiety[.]” Pl.’s Br. at 19. Ms. Allen is correct: The ALJ’s decision nowhere
considers—or even mentions—Ms. Allen’s claim that she suffers from depression. This is error.
The social security regulations require an ALJ to consider all of a claimant’s medically
determinable impairments. 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically
determinable impairments of which we are aware”). Moreover, where “a claimant has presented
a colorable claim of mental impairment, the social security regulations require the ALJ to
complete a [Psychiatric Review Technique Form] and append it to the decision, or incorporate its
mode of analysis into his findings and conclusions.”6 Keyser v. Comm’r Soc. Sec. Admin., 648
F.3d 721, 726 (9th Cir. 2011) (quoting Moore v. Barnhart, 405 F.3d 1208, 1214 (11th
Cir.2005)); 20 C.F.R. § 404.1520a. Failure to complete this form “requires remand.” Id.
Ms. Allen raised a colorable claim that she suffered from depression. Dr. Kocurek, a medically
acceptable source, repeatedly noted that Ms. Allen suffered from depression. Tr. 785-86, 789,
836. See 20 C.F.R. § 404.1513(a) (medically acceptable source can establish whether claimant
has a medically determinable impairment). In addition, Ms. Allen testified that depression
interfered with her ability to interact with other people. Tr. 50-51. In light of this evidence, the
ALJ was required to consider Ms. Allen’s claim to suffer from depression at steps two and four.
The ALJ’s failure to do so requires remand.
6
The record contains a Psychiatric Review Technique Form, consisting of several pages
of check-the-box forms and a brief narrative, completed by Dr. Robert Henry. Tr. 493-506. The
ALJ, however, did not attach this Form to his decision or discuss Dr. Henry’s findings. In any
event, Dr. Henry failed to complete most of the Form (on more than half of the pages, Dr. Henry
did not check any boxes at all, even the box marked “Insufficient evidence.”). Moreover,
Dr. Henry states in his narrative that there “is no mention of any psych impairment” during the
relevant time period. As noted above, however, Dr. Kocurek repeatedly assessed Ms. Allen as
suffering from depression during the relevant period. Tr. 785-86, 789.
Page 16 – OPINION AND ORDER
Ms. Allen also suggests that the ALJ did not appropriately consider her emphysema. Pl.’s
Br. at 20. The ALJ properly evaluated Ms. Allen’s emphysema at step two: The ALJ cited
evidence in the record demonstrating that Ms. Allen’s condition did not cause her vocational
limitations during the relevant time period. Tr. 19-20 (citing Tr. 670). Even though the ALJ
properly found that Ms. Allen’s emphysema was not severe at step two, the ALJ may need to
consider Ms. Allen’s emphysema at step four. 20. C.F.R. § 404.1545(a)(2) (in formulating a
claimant’s RFC, “[w]e will consider all of your medically determinable impairments of which
we are aware, including your medically determinable impairments that are not ‘severe’”). During
the hearing, Ms. Allen testified that she had trouble breathing and was susceptible to
environmental allergies. Tr. 41-42. When the Commissioner re-evaluates Ms. Allen’s testimony
on remand, the Commissioner should decide whether to credit this testimony. If the
Commissioner credits this testimony, the Commissioner should consider whether to incorporate
these symptoms into Ms. Allen’s RFC.7
E.
Remand
The court may, in its discretion, order an immediate payment of benefits. In “Social
Security Act cases Congress has granted district courts the additional power to reverse or modify
an administrative decision without remanding the case for further proceedings.” Harman v.
Apfel, 211 F.3d 1172, 1177–78 (9th Cir.2000). The Ninth Circuit has set forth a three-part test
for determining whether to remand a case for further proceedings or to order an immediate award
of benefits. Immediate payment of benefits is appropriate where: (1) the ALJ failed to provide
7
Ms. Allen also states that she suffers from irritable bowel syndrome, renal stones, and
reflux. Pl.’s Br. at 5, 20. Although there are passing mentions of these conditions in the medical
evidence, the evidence does not establish that these conditions have limited Ms. Allen’s
functional capacity. In fact, Ms. Allen did not mention any of these conditions during her
hearing.
Page 17 – OPINION AND ORDER
legally sufficient reasons for rejecting the claimant's testimony; (2) no outstanding issues remain
for the ALJ to resolve; and (3) it is clear from the record that the ALJ would be required to find
the claimant disabled were such testimony credited. Moisa v. Barnhart, 367 F.3d 882, 887 (9th
Cir. 2004).
Immediate payment of benefits is not warranted in this case. Even when crediting
Ms. Allen’s testimony as true, it is unclear whether the ALJ would be required to find Ms. Allen
disabled because the ALJ did not ask the VE a hypothetical question that adequately accounted
for Ms. Allen’s testimony. As such, the court cannot conclude that Ms. Allen would have been
unable to successfully adjust to other work that exists in significant numbers in the national
economy. Ms. Allen’s case, therefore, is remanded to the Commissioner for further proceedings.
CONCLUSION
The Commissioner’s decision is REVERSED and the case is REMANDED. On remand,
the Commissioner should re-evaluate the medical evidence consistent with 20 C.F.R. § 1527 and
Ninth Circuit case law. If necessary, the Commissioner should contact Dr. Kocurek to seek
clarification of her opinion. See 20 C.F.R. § 404.1520b(c)(1). The Commissioner should also reevaluate Ms. Allen’s testimony consistent with SSR 96-7p and Ninth Circuit case law. In
addition, the Commissioner must consider whether and the extent to which Ms. Allen suffers
from depression. If warranted, the Commissioner should order a consultative mental
examination. See 20 C.F.R. § 404.1517. To evaluate the severity of Ms. Allen’s depression, the
Commissioner should employ the process set forth in 20 C.F.R. § 404.1520a. If necessary, the
Commissioner should reformulate Ms. Allen’s RFC, taking into account Ms. Allen’s
emphysema, and hold a new hearing to take new testimony from Ms. Allen and/or a VE.
Page 18 – OPINION AND ORDER
IT IS SO ORDERED.
Dated this 17th day of July, 2012.
/s/ Michael H. Simon
_________________________
Michael H. Simon
United States District Judge
Page 19 – OPINION AND ORDER
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