Petty v. Commissioner Social Security Administration

Filing 15

Opinion and Order. The decsision of the Commissioner is REVERSED and the matter is REMANDED to the Commissioner pursuant to Sentence Four, 42 USC 405(g). Signed on 5/7/2014 by Judge James A. Redden. (sm)

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

HEATHER P. PETTY,

Plaintiff,

6:13-cv-00491- RE

OPINION AND ORDER

v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.

REDDEN, Judge:
Plaintiff Heather Petty brings this action to obtain judicial review of a final decision of
the Commissioner of the Social Security Administration ("Commissioner") denying her claim for
Supplemental Security Income ("SSI"). For the reasons set fmih below, the decision of the
Commissioner is reversed and this matter is remanded for the calculation and payment of
benefits.

1 - OPINION AND ORDER

BACKGROUND
Plaintiff filed her application on Januaiy 11, 2010, alleging disability since January 1,
1983, due to "petit ma! epilepsy daily from a few sec[onds] to 4 min[utes], depression." Tr. 60.
Plaintiff was 27 years old at the time of application. She completed the 9th grade. Tr. 14, 30.
Her application was denied initially and upon reconsideration. A hearing was held on November
29, 2011. Tr. 26-59. The Administrative Law Judge ("ALJ") found her not disabled on Januaty
5, 2012. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision
the final decision of the Commissioner.

ALJ's DECISION
The ALJ found Plaintiff had the medically determinable severe impainnents of seizure
disorder, obesity, arndety NOS, depression NOS, hist01y of methamphetamine abuse, and
borderline intellectual functioning. Tr. 12.
The ALJ found that Plaintiffs impairments did not meet or medically equal one of the
listed impairments in 20 C.F.R. Part 404, Subpaii P, App. 1. Tr. 12-13.
The ALJ detetmined Plaintiff retained the residual functional capacity ("RFC") to
perform a full range of work at all exertional levels but she was limited to simple, routine, ently
level positions requiring no work around heights, heavy machine1y, or similar workplace hazards.
At step four, the ALJ found Plaintiff had no past relevant work, but that there were jobs
in significant numbers in the national economy that Plaintiff could perform such as assembly
worker and janitorial worker. Tr. 19-20.
Plaintiff contends that the ALJ erred by improperly weighing medical opinions.

2 - OPINION AND ORDER

DISCUSSION

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l);
416.927(e )(1 ). If no conflict arises between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than that of an examining physician.
Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). More weight is given to the opinion of a
treating physician because the person has a greater oppotiunity to know and observe the patient
as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9'h Cir. 2007). In such circumstances the
ALJ should also give greater weight to the opinion of an examining physician over that of a
reviewing physician. Id If a treating or examining physician's opinion is not contradicted by
another physician, the ALJ may only reject it for clear and convincing reasons. Id. (Treating
physician); Widmarkv. Barnhart, 454 F.3d 1063, 1067 (9'h Cir. 2006) (examining physician).
Even if one physician is contradicted by another physician, the ALJ may not reject the opinion
without providing specific and legitimate reasons suppotied by substantial evidence in the record.
Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of an nonexamining physician,
by itself, is insufficient to constitute substantial evidence to reject the opinion of a treating or
examining physician. Widmark, 454 F.3d at 1066 n. 2. The ALJ may reject physician opinions
that are "brief, conclusory, and inadequately suppotied by clinical findings." Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005).

I. Caleb Burns, Ph.D.
Dr. Burns conducted a neuropsychological evaluation of Plaintiff on Januaty 14, 2009.
Tr. 229-47. The evaluation consisted of an interview, a mental status examination, and
psychological testing including the Wechsler Adult Intelligence Scale-IV (WAIS-IV), the

3 - OPINION AND ORDER

Wechsler Memory Scale-III, Trail Making A and B, the Reitan-Indiana Aphasia Screening Test,
the Word Reading subtest of the Wide Range Achievement Test-4, the Mood Assessment Scale,
and the M Test. Dr. Burns concluded regarding Plaintiffs employability:
Her combination of cognitive deficits, seizure disorder, history
of suicide attempts, her posttraumatic stress disorder symptoms,
etc., along with her reported physical limitations probably will
render her unemployable for at least the next twelve months. If
she is placed in a work situation she is at great risk of decompensating. However, given her ongoing seizures it is ve1y
difficult to imagine any employer willing to risk her having
seizures in a workplace. (With the onset of the partial seizures
she has, she either freezes in place or continues to do what she
was doing before. She has walked in front of a car before-and
was nearly hit-has walked into walls, poles, fallen down stairs
numerous times, etc.)
Tr. 241.
Dr. Burns's diagnostic impressions were Depressive Disorder, NOS, Posttraumatic Stress
Disorder, Methamphetamine Abuse, currently in remission, Borderline Intellectual Functioning,
and he assessed a GAF of 48. Tr. 241-42. Dr. Burns completed a State of Oregon Department
of Human Resources f01m "Rating oflmpairrnent Severity Report," in which he opined that
Plaintiff was markedly restricted in Activities of Daily Living, moderately and markedly
impaired in social functioning, and moderately impaired in concentration, persistence, or pace.
Tr. 243.
Dr. Burns stated that a minimal increase in mental demands or change in environment
would cause Plaintiff to decompensate. Tr. 244. Dr. Burns noted Plaintiffs "memo1y for
verbally presented inf01mation is ve1y poor." Tr. 244.
On Februmy 2, 2009, Dr. Burns completed a Mental Residual Function Capacity Rep01i
(MRFCR). Tr. 245-46. The MRFCR form lists twenty functional factors. "Markedly Limited"
4 - OPINION AND ORDER

is checked when a "limitation precludes the ability to perform the designated activity on a
regular and sustained basis, i.e., 8 hours a day 5 days a week, or an equivalent schedule." Id
Dr. Burns indicated Plaintiff was markedly limited in the ability to can-y out detailed instructions,
to maintain attention and concentration for extended periods, and to sustain an ordinary routine
without special supervision. Tr. 246. Dr. Bums indicated that Plaintiff was markedly limited in
the ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perfo1m at a consistent pace without an unreasonable
number and length of rest periods. Dr. Burns found Plaintiff markedly limited in the ability to be
aware of normal hazards and take appropriate precautions, and in the ability to travel in
unfamiliar places or use public transportation. He asse1ied that Plaintiffs conditions had been
disabling since 2007.
The ALJ noted Dr. Burns's rep01is and stated "these opinions are viewed with extreme
caution as the conclusions reached appear quite suspect and inconsistent with the objective
evidence." Tr. 16. The ALJ stated that "[a]side from cognitive testing, these diagnoses were
based entirely on the claimant's self-report without review of any other evidence." Tr. 17. The
ALJ cited Dr. Bums's opinion that Plaintiff would be unemployable for the next twelve months
due to both psychological and physical limitations, and found it "appears this opinion was based
on factors uncertain to Dr. Burns and unrelated to the purpose of his examination. Assessing
limitations based on alleged physical limitations that have no foundation in evidence is
considered careless and reduces Dr. Bums' credibility as a psychological evaluator." Id. The
ALJ concluded:

II I

5 - OPINION AND ORDER

In his assessment, Dr. Burns found the claimant's mental functioning
to markedly impair her activities of daily living; however, this is inconsistent with his clinical interview, which included repott of
providing care for three children under the age of 7, total independence in personal care activities, cleaning her apmtment
daily and to a 'spotless' level of clean. Dr. Burns found the
claimant's mental functioning to markedly impair her social
functioning; however, this is inconsistent with his clinical interview, which included report of groce1y shopping, taking
public transpo1tation, going to church "at least" four times a
week, and going out to movies and restaurants, which she
indicated she would do more often if she had more money.
[citation omitted]. Accordingly, as Dr. Burns' conclusions
are internally inconsistent with his clinical interview, his
opinions are given ve1y little weight.
Tr. 17.

A. Activities of Daily Living
Dr. Burns noted Plaintiff stated she stays out of the kitchen because of her seizures, and
that there have been fires. Tr. 233. She reported showering or bathing daily, as well as brnshing
her teeth daily. As to transportation, Plaintiff told Dr. Burns "I go with my husband. Most of the
time I don't go anywhere without him." Tr. 234. She has never had a driver's license. Plaintiff
told Dr. Burns that she shops at times with her husband, and sometimes has anxiety attacks in
stores.
Plaintiff told Dr. Burns that she cleans, does laund1y, bathes and dresses the kids, works
with them on their flash cards, and watches cattoons with them. Id. Plaintiff said her apatiment
was clean, "[i]t's spotless. I am a clean freak. I can't handle a mess." Tr. 234. Sometimes she
will clean house all night.

I II
II I

6 - OPINION AND ORDER

B. Social Interactions
Plaintiff stated she goes to church "at least" four times a week. Tr. 235. Friends come to
see her every several days, but she does not go to visit other people because she is afraid the
children might be hurt if she had a seizure. "Most of the time when I go anywhere it is with my
mom or my husband." Id. She goes out to restaurants and movies "at times" and would go more
if she had the money to do so. She stays home most days.
The ALJ relies heavily on the assettion that Dr. Burns's conclusions are inconsistent with
his clinical interview. Considering the record as a whole, the ALJ did not identify specific and
legitimate or clear and convincing reasons to find Dr. Burns's opinion entitled to little weight.

II. Kay Stradinger, Psy.D.
Dr. Stradinger examined Plaintiff on April 17, 2010. Tr. 301-07. She reviewed chart
notes from Michael Grady, M.D., from December 2009 and January 2010, in which Dr. Grady
noted a convulsive disorder, depression, anxiety, and obesity. Tr. 290-96. Dr. Stradinger
diagnosed Mood Disorder NOS, rnle out bipolar disorder with dissociative features, history of
multiple substance abuse/dependence, rule out borderline intellectual functioning, and assessed a
GAF of53. She concluded:
The claimant is capable cognitively of performing simple and
repetitive work-type tasks.
The claimant may have some difficulty interacting appropriately,
effectively, and on a sustained basis with supervisors, coworkers
and the public given her mood disorder.
The claimant would have a difficult time completing a full workday
or workweek independently, effectively, and on a sustained basis
given her mood disorder. This seems related to social skill deficits
as well.

7 - OPINION AND ORDER

Tr. 306-07.
The ALJ rejected Dr. Stradinger's conclusion regarding Plaintiffs ability to sustain work,
stating "the evidence does not demonstrate an inability to perform simple and basic tasks." Tr.
17. The ALJ continued:
Further, the conclusions reached by Dr. Stradinger appear to be
speculative and based entirely on the claimant's self-report,
particularly those findings related to mood and social difficulties. As noted during the course of Dr. Burns' Janumy 2009
assessment, clinical interview included repmt of grocety shopping,
taking public transportation, going to church "at least" four times
a week, and going out to the movies and restaurants. While difficult
to confitm, the possibility always exists that an examiner may
express an opinion in an effort to assist an individual with whom
he or she sympathizes for one reason or another, such as fmtherance of a person's application of general assistance. As such,
the opinion of Dr. Stradinger is given limited weight to the extent it supports the residual functional capacity finding, but this
opinion is also considered with caution as it reflects an inordinate degree ofreliance upon the subjective descriptions of
symptomatology and limitations set fmth by an individual
seeking cash and medical assistance.

Id.
Dr. Stradinger's opinion is bolstered by the fact that it is substantially similar to the
opinion of Dr. Boyd. The ALJ stated that the "residual functional capacity has been reduced to
accommodate the limitations suggested by Dr. Stradinger.... " Tr. 17. However, the ALJ failed to
include the limitations Dr. Stradinger identified relating to supervisors, coworkers, and the
public. The ALJ failed to include in the RFC the functional limitations Dr. Stradinger identified
regarding Plaintiffs ability to complete a full workweek "independently, effectively, and on a
sustained basis .... " Tr. 306-07. The ALJ failed to identify specific and legitimate or clear and
convincing reasons to reject Dr. Stradinger' s opinion.

8 - OPINION AND ORDER

III. Joshua Boyd, Psy. D.
Dr. Boyd reviewed Dr. Bums's evaluation and completed a Psychiatric Review
Technique form and a Mental Residual Functional Capacity Assessment on June 11, 2009. Tr.
259-72, 281-84. Dr. Boyd noted borderline intellectual functioning, depressive disorder, and
posttrauniatic stress disorder, and assessed mild limitations in activities of daily living and social
functioning, and moderate difficulties in maintaining concentration, persistence and pace. Dr.
Boyd opined that Plaintiff was moderately limited in the ability to understand, remember, and
carry out detailed instructions. Tr. 281. Dr. Boyd found "Dr. Bums' opinion of disability is not
consistent w/ his own exam findings. Clmt is denying many symptoms of depression and is
relatively independent in ADL's." Tr. 271. Dr. Boyd concluded that the RFC as assessed by the
ALJ was accurate.
The ALJ gave "some weight" to Dr. Boyd's assessment, but "the social limitations
assessed do not seem particularly significant, especially in light of the claimant's report of social
activities detailed during the course of Dr. Burns' January 2009 assessment." Tr. 18. As noted
above, the ALJ failed properly to weigh the evidence of social limitations.

IV. Remand for Payment of Benefits
The decision whether to remand for fu1ther proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 172, 1178 (9'h Cir.
2000), cert. denied, 531U.S.1038 (2000). The issue turns on the utility of further proceedings.
A remand for an award of benefits is appropriate when no useful purpose would be served by
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to support the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-

9 - OPINION AND ORDER

39 (9'h Cir. 201 l)(quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9'h Cir. 2004)). The court
may not award benefits punitively, and must conduct a "credit-as-true" analysis to determine if a
claimant is disabled under the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award
of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for
rejecting such evidence; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited. Id. The "credit-as-true"
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett v. Barnhart, 340 F.3d 871, 876 (citing Bunnell v. Sullivan, 947 F.2d 871(9'h Cir.
2003)( en bane)). The reviewing court should decline to credit testimony when "outstanding
issues" remain. Luna v. As/rue, 623 F.3d 1032, 1035 (9'h Cir. 2010).

Ill
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Ill

10 - OPINION AND ORDER

The ALJ' s fai!Ure to credit the opinions of the two examining physicians is en·oneous for
the reasons set out above. The Vocational Expert testified that, ifDrs. Burns and Stradingers'
opinions are credited, Plaintiff would be unable to maintain employment. Tr. 47.
Accordingly, this matter is remanded for the calculation and award of benefits.
CONCLUSION
For these reasons, the Court REVERSES the decision of the Commissioner and
REMANDS this matter to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for
the immediate calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED.
Dated this 1

day of May, 2014.

,;/JA~ES A. REDDEN

\l]nJted States District Judge

11 - OPINION AND ORDER