Leach v. Commissioner, Social Security Administration

Filing 15

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 04/15/2014 by Judge Anna J. Brown. See attached 27 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DON W. LEACH,
Plaintiff,

6:13-CV-00426-BR
OPINION AND ORDER

v.

CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration, 1
Defendant.

KATHRYN TASSINARI
Harder, Wells, Baron & Manning, P.C.
474 Willamette
Suite 200
Eugene, OR 97401
[phone]

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013.
Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case.
No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 u.s.c. § 405.
1 - OPINION AND ORDER

DREW L. JOHNSON .
1700 Valley River Drive
Eugene, OR 97405
[phone]
Attorneys for Plaintiff
S . AMANDA MARSHALL

United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Don W. Leach seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for
Disability Insurance Benefits (DIB) under Title II of the Social
Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court REVERSES the
decision of the Commissioner and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for further administrative

2 - OPINION AND ORDER

proceedings consistent with this Opinion and Order.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on January 6, 2009,
alleging a disability onset date of January 1, 2005.
Tr. 116-18. 2

The application was denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on October 12, 2011.

Tr. 27-60.

Plaintiff was represented by an attorney.

At the hearing
Plaintiff and a

vocational expert (VE) testified.
The ALJ issued a decision on December 9, 2011, in which she
found Plaintiff was not disabled before his June 30, 2010, date
last insured and, therefore, is not entitled to benefits.
Tr. 12-20.

Pursuant to 20 C.F.R.

§

404.984(d), that decision

became the final decision of the Commissioner on February 6,
2013, 1-{hen the Appeals Council denied Plaintiff's request for
review.

BACKGROUND

Plaintiff was born April 30, 1947, and was 64 years old at
the time of the hearing.
Tr. 32.

Tr. 61.

Plaintiff has a law degree.

Plaintiff has past relevant work experience as an

2

Citations to the official transcript of record filed by
the Commissioner on July 16, 2013, are referred to as "Tr."
3 - OPINION AND ORDER

attorney, human resources coordinator, and property manager.
Tr. 32.
Plaintiff alleges disability prior to his June 30, 2010,
date last insured due to coronary artery disease (CAD), atrial
fibrillation, diabetes mellitus type II, obesity, degenerative
joint disease of both knees, trochanteric bursitis, depression,
and sleep apnea.

Tr. 15.

Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the
medical evidence.

See Tr. 17-21.

STANDARDS

The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate his

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."
§

423(d) (1) (A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F. 3d

4 - OPINION AND ORDER

453, 459-60 (9ili Cir. 2001)).
The district 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 as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm'r of Soc. Sec. Admin.,

682 F. 3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."

Molina,

674 F.3d. at 1110-11

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

"It is more than a mere scintilla [of

evidence) but less than a preponderance."

Id.

(citing Valentine,

574 F. 3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.
Comm'r of Soc. Sec.,

Ryan v.

528 F. 3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F. 3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the

5 - OPINION AND ORDER

Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006) .

DISABILITY ANALYSIS

I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R. § 404.1520.

Each step is potentially

dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a) (4) (I).

See also Keyser v.

Comm'r of Soc. Sec., 648 F. 3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§

404.1520 (a) (4) (iii).

See also Keyser,

20 C.F.R.

648 F. 3d at 724.

criteria for the listed impairments, known as Listings, are
6 - OPINION AND ORDER

The

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments) .
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's residual functional capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§

404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

ftA

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule.''

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm'r of Soc. Sec. Admin.,

659 F. 3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
See also Keyser,

20 C.F.R. § 404.1520(a) (4) (iv).

648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
Keyser,

20 C.F.R. § 404.1520(a) (4) (v).

648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

7 - OPINION AND ORDER

Lockwood v.

Comm'r Soc. Sec. Admin., 616 F. 3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R.

§

404.1520(g) (1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity from his January 1, 2005, alleged
onset date through his June 30, 2010, date last insured.

Tr. 13.

At Step Two the ALJ found Plaintiff, before his date last
insured, had the severe impairments of CAD, "atrial fibrillation
on anticoagulation therapy, obesity, status post bilateral knee
replacements, and bilateral trochanteric bursitis."

Tr. 13.

The

ALJ found Plaintiff's impairments of mild knee osteoarthritis,
diabetes mellitus type II, and depression were not severe before
Plaintiff's date last insured.

Tr. 13.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments did not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1, before his June 30, 2010, date last insured.
Tr. 14.

The ALJ found Plaintiff, through his date last insured,

had the RFC to perform sedentary work with the following

8 - OPINION AND ORDER

limitations:

Plaintiff could "not climb ladders, ropes, or

scaffolds, kneel, or crawl, and due to anticoagulation therapy he
cannot perform work involving power tools or large moving
equipment."

Tr. 15.

At Step Four the ALJ concluded Plaintiff was able to perform
his past relevant work as an attorney through his June 30, 2010,
date last insured.

Tr. 22.

Accordingly, the ALJ found Plaintiff

was not disabled through his date last insured.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff's January and June 2009 Statements;
(2) improperly failed to address fully the opinion of Plaintiff's
treating physician Robert Larson, M.D.;

(3) improperly failed to

fully address the opinion of reviewing psychologist Marlan
Martin, Ph.D.;

(4) improperly failed to give great weight to the

disability determination of the Veterans Administration (VA); and
(5) erred at Step Four when she concluded Plaintiff could perform
his past relevant work as a lawyer.

I.

The ALJ did not err when she partially rejected Plaintiff's
January and June 2009 Statements.
Plaintiff alleges the ALJ erred when she failed to give

clear and convincing reasons for partially rejecting Plaintiff's
January and June 2009 Statements.
In Cotton v. Bowen the Ninth Circuit established two
9 - OPINION AND ORDER

requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F. 2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.

Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007) (citing Lester v. Chater, 81 F. 3d 821, 834
Cir. 1995)).

(9th

General assertions that the claimant's testimony is

not credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id.

(quoting Lester, 81 F.3d at 834)

On January 29, 2009, Plaintiff submitted an eight-page typed
Adult Function Report in which he stated he wakes between 4:00
and 7:00a.m.

Plaintiff noted when he wakes at the earlier time

he will often "go to the computer to play games, read interesting
things, or just read."

Tr. 156.

When he wakes early, Plaintiff

sometimes writes "for personal interests" and has to get up after
an hour and walk around due to pain in his hips from sitting.
10 - OPINION AND ORDER

~to

Later in the day, Plaintiff makes telephone calls

family and

friends" and sometimes goes to breakfast with a friend.

Tr. 156.

Plaintiff brings in 40-pound bags of pellets for his mother's
pellet stove but can no longer bring in three to four bags at a
time because
Tr. 156.

~a

puts [him) in to what [he) call[s)

Plaintiff sometimes goes to lunch with a friend, goes

lot of movies," and his evenings are

computer games."
~Free

'stress.'"

Plaintiff can drive two to three hours at a time on a

good day.
to

~it

Tr. 157.

~filled

with TV and

Specifically Plaintiff noted his

Cell game has a current history of 1,044 games.

. .

I

try to win 1,000 in a row but the best [he has) been able to do
is 641."

Tr. 157.

·aoes not practice

Plaintiff stated he is an attorney but he
~in

part because [he does not) have the funds

for the insurance [and) in part because of [his) depression."
Tr. 157.
an

~NRA

Plaintiff takes

~courses

that interest" him including

course," photography, and photoshop.

set up a My Space account but found it

Plaintiff noted ·he

~difficult

to maintain an

interest in such things even though [he has) a desire to be a
social animal."

Tr. 157.

Plaintiff stated he does not sleep

well due to pain, for example

~last

night" he

~awoke

at around

3:01 am and got on the computer for a couple of hours before [he
was) able to go back to sleep."

Tr. 158.

mother to her doctor's appointments.

Plaintiff drives his

Plaintiff stated

~all

of

[his) problems with personal care come from motivation due to the

11 - OPINION AND ORDER

depression."

Tr. 159.

Plaintiff noted

I like to write, read, watch TV, play computer
games, take pictures, enjoy conversation with my
family and friends, go to dinner, go to the movie
[sic], to walk in the mall, go to electronic
stores, shoot pistols, talk politics, talk
administrative law, observe people, go to church
(maybe once a month), go to the ocean, go to gun
and knife shows, go to home shows, go to RV shoes,
go to the country and state fairs, etc.
With
those things that involve walking I am very
careful about the "stress" of working too hard at
it.
This year I won a ribbon and prize money at
the county fair with a welded metal sculpture.
It
took about 40 hours to build over a 3.5 year
period.
Tr. 160.

Plaintiff spends time "on the phone or on the Internet

with the exceptions of my sons, daughter, their spouses and the
grandchildren."

Tr. 160.

Plaintiff explained his difficulty in

following instructions "seems to stem from not wanting to put up
with other peoples [sic] bull shit as opposed to some form of
mental defect.

Of course there are those who would see this as a

defect anyway, especially in these days of political
correctness."

Tr. 162.

On June 1, 2009, Plaintiff submitted a ten-page typed
Statement in which he noted he had difficulty walking "any
distances.

Some days I can a half mile or more.

Some days I

difficulty [sic] with 100 [feet)."

Tr. 187.

"wrestle[s) with atrial fibulation"

[sic] and as a result he

Plaintiff noted he

stopped hunting three to four years earlier and needs to stop and
rest when performing physical activities.

12 - OPINION AND ORDER

Tr. 189.

Plaintiff

noted he "went fishing yesterday with friends," which involved
walking 150 feet from the cabin to the dock and fishing "for
about 4 casts of the plug," at which point Plaintiff stopped
fishing.

Tr. 189.

Plaintiff stated he suffers "chronic

depression" that has "been exacerbated by pain from my knees,
hips, and back."

Tr. 190.

The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms; however,

[Plaintiff's] third-party statements

concerning the intensity, persistence and limiting effects of
these symptoms are not credible."

Tr. 16.

The ALJ noted

Plaintiff did not obtain treatment or counseling for his
depression or take medication to treat his depression other than
one counseling session on February 3, 2011.

The ALJ also noted

Plaintiff's wife stated in her February 2, 2009, Third Party
Function Report that Plaintiff can stay at his computer for
"several hours," cannot lie down for more than three or four
hours before he has to sit in a chair "for awhile," carries 40pound bags of pellets for the stove, shops two to four hours per
week, regularly visits with friends and family, and has "no
problem with
Tr. 169-70.

. instructions unless the person upsets him."
Plaintiff's wife noted Plaintiff does not have any

"real problem with direct authority figures" but sometimes he
"overreacts with stressed and gets very angry."

13 - OPINION AND ORDER

Tr. 171.

The

ALJ also noted Plaintiff was able to prepare the two detailed and
lengthy personal statements as well as a detailed letter to his
doctor about medication changes and coordinating care.

Tr. 15-

16.
On this record the Court finds the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony was not entirely
credible as to the intensity, persistence, and limiting effects
of her conditions.

The Court, therefore, concludes the ALJ did

not err when she rejected Plaintiff's testimony in part.

II.

The ALJ erred when she failed to address fully the opinion
of Dr. Larson.
Plaintiff asserts the ALJ erred when she failed to address

fully the February 2005 opinion of Dr. Larson, treating
physician.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so.that are based on substantial
evidence in the record."

Thomas v. Barnhart,

278 F.3d 947, 957

(9th cir. 2002) (quoting Magallanes v. Bowen, 881 F. 2d 747, 751
(9th Cir. 1989)).

When the medical opinion of a treating

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
957.

See also Lester v.

14 - OPINION AND ORDER

Chater,

Thomas,

278 F.3d at

81 F.3d 821, 830-32.

On February 14, 2005, Dr. Larson wrote a letter to the
Oregon Department of Human Services (DHS) in which he noted
Plaintiff suffers from diabetes mellitus, hypertension, and
"symptomatic chest pain related to coronary artery disease.•
Tr. 334.

Dr. Larson advised the DHS that Plaintiff "has

developed a significant reduction in his ability to do any
physical labor or even to do heavy office work• and that it was
not "advisable• for Plaintiff "to begin any sort of profession
that would involve psychological stress or physical activity due
to his known severe inoperable multivessel coronary artery
disease.•

Tr. 334.

Dr. Larson opined Plaintiff did not have any

limitations with sitting, standing, or "performing mental
activities,• however, Plaintiff did have "significant difficulty
lifting, carrying, or walking any great period.•

Tr. 334.

In

summary, Dr. Larson noted his "[p]rimary concern for [Plaintiff]
is that his life work as a lawyer has been very stressful and
. this continued psychological stress could aggravate his
condition.•

Tr. 334.

Dr. Larson also stated in a February 2,

2005, chart note that Plaintiff should not have any "exceisive
emotional stress

. for any job activity.•

T. 335-36.

The ALJ stated she gave Dr. Larson's opinion "great weight•
as to Plaintiff's "functional limitations.•

Tr. 18.

Plaintiff

asserts the ALJ, nevertheless, implicitly rejected Dr. Larson's
opinion that Plaintiff should avoid professions that involve

15 - OPINION AND ORDER

psychological stress because she failed to include any
limitations in Plaintiff's RFC related to excessive psychological
stress and concluded Plaintiff could perform his past relevant
work as a lawyer.
Defendant notes the ALJ properly declined to accept
Dr. Larson's opinion on the question whether Plaintiff could
perform his past work as a lawyer because that question is
reserved to the Commissioner.

See 20 C.F.R. § 404.1527(d).

Defendant also asserts Dr. Larson did not have any personal
knowledge regarding whether Plaintiff's work as a lawyer had been
unduly stressful because at the time he was treated by
Dr. Larson, Plaintiff had not been working as a lawyer for
approximately six years.
The record, however, reflects Dr. Larson's February 2, 2005,
chart note in which he advised "no excessive emotional stress
recommended for any job activity" occurred because Plaintiff
reported stress with job interviews that resulted in tightening
in his chest, problems breathing, and anxiety.

In addition, the

ALJ did not offer any reason for rejecting the portion of
Dr. Larson's opinion in which he asserted Plaintiff should not
work in jobs with excessive emotional stress.
The Court concludes on this record that the ALJ erred when
she implicitly rejected the portion of Dr. Larson's opinion in
which he opined Plaintiff should not work in jobs that involve

16 - OPINION AND ORDER

excessive psychological stress.
III. The ALJ erred when she failed to fully address the opinion
of Dr. Martin
Plaintiff contends the ALJ erred when she failed to address
fully the opinion of Dr. Martin, reviewing psychologist.
A nonexamining physician is one who neither examines nor
treats the claimant.

Lester, 81 F.3d at 830.

A nonexamining

physician's opinion can constitute substantial evidence if it is
supported by other evidence in the record.

Trego v. Astrue, 350

F. App'x 158, 159 (9th Cir. 2009) (quotation omitted).

The ALJ

"may reject the opinion of a nonexamining physician by reference
to specific evidence in the medical record.n
143 F. 3d 1240, 1244 (9th Cir. 1998).

Sousa v. Callahan,

See also Manzo v. Social

Sec. Admin., No. 10-CV-1062-HZ, 2011 WL 4828818, at *7

(D. Or.

Oct 11, 2011) (same).
On June 8, 2011, Dr. Martin reviewed Plaintiff's medical
record and opined Plaintiff before his June 30, 2010, date last
insured did not have any restrictions in his activities of daily
living, had mild to moderate limitations in maintaining social
functioning, and had mild difficulty with concentration.
Dr. Martin also opined Plaintiff had moderate limitations in his
ability to interact appropriately with the public and supervisors
before his date last insured.

Tr. 838, 844.

The ALJ gave

"significant weightn to the portion of Dr. Martin's opinion in

17 - OPINION AND ORDER

which she concluded Plaintiff did not have any restrictions
before his date last insured in his activities of daily living,
had mild to moderate limitations in maintaining social
functioning, and had mild difficulty with concentration.

Tr. 21.

The ALJ, however, failed to address Dr. Martin's opinion that
Plaintiff also had moderate limitations before his date last
insured in his ability to interact appropriately with the public
and supervisors and did not include any limitations in
Plaintiff's RFC related to limitations in interacting with the
public and supervisors.

In fact, the Dictionary of Occupational

Titles (DOT) notes the practice of law involves significant
interaction with people including influencing their opinions,
attitudes and judgments.

DOT 110.107-010.

The Court concludes on this record that the ALJ erred when
she failed to address the portion of Dr. Martin's opinion in
which she opined Plaintiff had moderate limitations before his
June 30, 2010, date last insured in his ability to interact
appropriately with the public and supervisors because she failed
to provide any reason with reference to specific evidence in the
medical record for doing so.

IV.

The ALJ erred when she failed to give "great weight" to the
VA's determination that Plaintiff was disabled by severe
depression.
A Social Security disability determination is similar to a

VA disability determination in

18 - OPINION AND ORDER

~hat

both are made by federal

agencies that provide benefits to those who cannot work due to
disability .
2002).

McCartey v. Massanari ,

298 F. 3d 1072, 1076 (9th Cir.

"[A]lthoug h a VA rating of disability does not

necessari ly compel the SSA to reach an identical result, 20
C.F.R. § 404.1504, the ALJ must consider the VA's finding in
reaching his decision."

Id.

An ALJ ordinarily must give "great

weight" to a VA determina tion of disability .
not compelled to reach an identical result.

An ALJ, however, is

I d.

See also 20

C.F.R. § 404.1504 ("A decision by any

other governmen tal

agency about whether you are disabled

is based on its rules

and is not our decision .

We must make a .

determina tion based on social security law.
determina tion made by another agency .
us . ") .

Therefore , a

. is not binding on

If the ALJ gives less than "great weight" to a VA

disability determina tion, however, he must provide "persuasiv e,
specific, valid reasons for doing so that are supported by the
record."

McCartey,

298 F. 3d at 1076.

On July 18, 2008, Dr. Turner conducted a psycholog ical
evaluation of Plaintiff for the VA.

Dr. Turner diagnosed

Plaintiff with "very severe" chronic pain; major, recurrent,
severe depression secondary to chronic pain; and moderatel y
severe anxiety.

Tr. 591.

3
Dr. Turner assessed a GAF of 40.

The GAF scale is used to report a clinician 's judgment of
the patient's overall level of social, occupatio nal, and
3

19 - OPINION AND ORDER

On May 2, 2011, Dr. Turner conducted a second psycholog ical
evaluation of Plaintiff for the VA.

Dr. Turner diagnosed

Plaintiff with very severe" chronic pain with medical and
psycholog ical factors; major, recurrent, "extremely severe"
depression secondary to chronic pain; and moderatel y severe
anxiety.
40.

Tr. 831.

Dr. Turner assessed Plaintiff with a GAF of

Dr. Turner opined it was "more likely than not, that

[Plaintiff 's] disabiliti es are total and permanent ."

Tr. 831.

The ALJ gave the VA determina tion and the assessmen ts of
Dr. Turner "very little weight."

Tr. 19.

The ALJ noted

Dr. Martin reviewed Plaintiff 's medical record including the VA
assessmen t and concluded the VA assessmen t was not supported by
the medical record.

Specifica lly Dr. Martin noted

most of the medical record do not indicate
There are "Depressio n
symptoms of depression .
records and many of them are
Screens" in the VA
In the records
negative for depression .
from Dr. Larson, there is one note on 9/25/2007
which indicated that [Plaintiff ] reported chronic
He was not
depression for many years.
n. A rating scale
taking psychotro pic medicatio
indicated mild depression and there was a
diagnosis of Major Depression , Single Episode.
There was a prescripti on for anti-depr essant
medicatio n, but there is no subsequen t record

psycholog ical functionin g on a scale of 1 to 100. Am. Psych.
Ass'n, Diagnosti c and Statistica l Manual of Mental Disorders IV
(DSM-IV) 31-34 (4th ed. 2000). A GAF of 40 indicates serious
symptoms (suicidal ideation, severe obsession al rituals, frequent
shopliftin g) or a serious impairmen t in social, occupatio nal, or
school functionin g (e.g., few friends, unable to keep a job).
I d.

20 - OPINION AND ORDER

indica ting that [Plain tiff] was taking the
medic ation.
Tr. 20, 836.

The ALJ also notes the record reflec ts Plain tiff

never had any in-pa tient hospi taliza tions for psych iatric
tiff
treatm ent and even after Dr. Turne r's 2008 diagn osis, Plain
did not obtain treatm ent for depre ssion.

The record indica tes

and
Plain tiff sough t menta l-heal th couns eling in Novem ber 2009
had one sessio n of couns eling in Febru ary 2011.

The record does

not reflec t any other menta l-heal th couns eling receiv ed by
Plain tiff.
The ALJ also noted the diagn ostic tests on which Dr. Turne r
relied in reachi ng his conclu sion (the mini-m ental status
are
exami nation and the Beck Depre ssion and Anxie ty Inven tories )
based on Plain tiff's self-r eport s of sympto ms.
Finall y, the ALJ noted Plain tiff's report ed activ ities in
the record did not suppo rt a findin g that he suffer ed severe
depre ssion before his June 30, 2010, date last insure d.

For

that
examp le, in Januar y 2006, Plain tiff report ed to Dr. Larson
he had "start ed workin g as a lawye r again, opened office to
practi ce recen tly.n

Tr. 321.

At the Januar y 2006 appoin tment,

was
the only psych ologic al sympto m Dr. Larson report ed Plain tiff
suffer ing was "anxie ty with persis tent worry about heart
proble ms.n

Tr. 321.

In Februa ry 2006 Plain tiff's treati ng

ng
cardio logist James Lowry; M.D., report ed Plain tiff was "feeli

21 - OPINIO N AND ORDER

slowly better" and had stopped "drinking pop, resumed walking a
quarter to half a mile at an easy pace and was planning to
increase that."

Tr. 282. Dr. Lowry noted Plaintiff had

set up his law practice again just for a very low
He is hoping to begin
volume workload at first.
making some money that way and he is also
expecting some income from real estate
. so this seems to have added a
transactions .
bit of stress to his life, but also perhaps he is
feeling better about his financial security.
Tr. 282.
In July 2007 Plaintiff had cataract surgery on his right eye
and a depression screen was negative.

Tr. 413.

In September

2007 Dr. Larson noted Plaintiff's psychometric hamilton
depression rating scale zung adjusted score was 50, which
indicated mild depression.

Tr. 300.

Nevertheless, the record does not contain a comprehensive
analysis of Plaintiff's mental health by any examining or
treating physician other than the psychological examinations
conducted by Dr. Turner in 2008 and 2011.

Dr. Martin is a

reviewing psychologist, not a treating physician.

Dr. Turner's

opinion is not contradicted by any treating or examining
physicians.

The ALJ, therefore, must provide clear and

convincing reasons to reject the opinion of Dr. Turner.

In

addition, when the ALJ gives less than "great weight" to a VA
disability determination, she must provide ''persuasive, specific,
valid reasons for doing so that are supported by the record."

22 - OPINION AND ORDER

The Court conclude s the ALJ has not

McCartey ,

298 F.3d at 1076.

done so.

The ALJ points to various medical records reportin g

Plainti ff's mental health prior to Dr. Turner's 2008 evaluati on.
The record reflects Plaintif f started to suffer higher and more
frequent levels of chronic pain and, therefor e, more acute levels
of depressi on in 2008 through his June 30, 2010, date last
insured.

In addition , the fact that Dr. Turner's diagnos is was

based in part on Plainti ff's self-rep orted symptoms is not, in
itself, a sufficie nt basis to reject Dr. Turner's opinion or the
VA determin ation of disablit y.

As one court explaine d:

Psychia tric impairm ents are not as readily
amenable to substan tiation by objectiv e laborato ry
testing as are medical impairm ents and
consequ ently, the diagnos tic techniqu es employed
in the field of psychia try may be less tangible
Mental
than those in the field of medicine .
disorder s cannot be ascertai ned and verified as
are most physica l illnesse s, for the mind cannot
be probed by mechani cal devices in order to obtain
objectiv e clinical manifes tations of mental
A strict reading of the statutor y
illness.
requirem ent that an impairm ent be 'demons trable by
medical ly acceptab le clinical and laborato ry
diagnos tic techniqu es' is inappro priate in the
Thus, when
context of mental illnesse s.
mental illness is the basis of a disabili ty claim
. clinica l and laborato ry data may consist of
the diagnose s and observa tions of .
psychol ogists.
Hartman v. Bowen, 636 F.Supp. 129, 131-32 (N.D. Cal. 1986).

On this record the Court conclude s the ALJ erred when she
did not give great weight to Dr. Turner's opinion and the VA's
conclusi on that Plaintif f was disabled by severe depressi on.

23 - OPINION AND ORDER

V.

The ALJ erred at Step Four.
Plaintiff contends the ALJ erred at Step Four when she

concluded Plaintiff before his June 30, 2010, date last insured
could perform his past relevant work as a lawyer because the ALJ
did not consider all of Plaintiff's limitations.

The Court has

concluded the ALJ erred when she failed to fully consider the
opinions of Drs. Larson and Martin and did not give great weight
to the VA's disability determination.

The Court, therefore, also

concludes the ALJ erred when she concluded at Step Four that
Plaintiff could perform his past relevant work as an attorney
before his June 30, 2010, date last insured because the ALJ
failed to include all of the limitations in Plaintiff's RFC that
were supported on this record.

REMAND

The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000) .

Harman v.

Apfel,

211 F.3d 1172,

When "the record has been fully developed

and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."

Benecke v.

2004) .

24 - OPINION AND ORDER

Barnhart,

379 F.3d 587, 593 (9th Cir.

The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.

Harman, 211 F.3d 1178.

The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

Id. at 1179.

The court may

''direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."

Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."

Harman, 211 F.3d at 1178.

The

Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
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 second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.

Id. at 1178 n.2.

The ALJ did not pose any hypothetical to the VE and did not
consider all of Plaintiff's limitations set out by Drs. Larson
and Martin and the VA.

25 - OPINION AND ORDER

The Court, therefore, cannot determine

' '

whether substantial evidence would support the ALJ's finding that
Plaintiff can perform his past relevant work if the ALJ
considered all of the limitations set out in the opinions of Drs.
Larson and Martin and by the VA.

The Court also cannot determine

whether Plaintiff before his date last insured could perform
other work in the national economy.

The Court, therefore,

concludes this matter must be remanded.
Accordingly, the Court remands this matter for further
administrative proceedings consistent with this Opinion and Order
specifically to allow the ALJ to reevaluate Plaintiff's
limitations, to pose a hypothetical to the VE that includes any
limitations identified by the ALJ in her reevaluation, and to
obtain additional testimony from the VE.

CONCLUSION

For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C.

§

405(g) for further administrative proceedings

26 - OPINION AND ORDER

consiste nt with this Opinion and Order.
IT IS SO ORDERED.
DATED this 15th day of April, 2014.

ANNA J. BROWN
United States District Judge

27 - OPINION AND ORDER