Fittje v. Commissioner Social Security Administration

Filing 23

Opinion and Order signed on 9/4/2014 by Judge Ancer L. Haggerty.The decision of the Acting Commissioner denying Terry J. Fittje's application for DIB must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent with this ruling and the parameters provided herein. (sp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

TERRY J. FITTJE,
Plaintiff,

Case No. 6: 13-cv-00629-HA
OPINION AND ORDER

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

HAGGERTY, District Judge:
PlaintiffTeny J. Fittje seeks judicial_ review of a final decision by the Acting
Commissioner of the Social Security Administration denying her application for Disability
Insurance Benefits (DIB). This court has jurisdiction to review the Acting Commissioner's
decision under 42 U.S.C. § 405(g). After reviewing the record, this court concludes that the
Acting Commissioner's decision must be reversed and remanded for further proceedings.

OPINION AND ORDER - 1

STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (1) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impairment is "of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential evaluation process for
dete1mining if a person is eligible for benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must determine whether the claimant ( 1) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impairments; (3) has severe impairments that meet or medically equal any of the listed
impahments that automatically qualify as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. Id An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-Sp. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist

OPINION AND ORDER - 2

in a significant number in the national economy that the claimant can perform given his or her
RFC, age, education, and work experience. Gomez v. Chafer, 74 F.3d 967, 970 (9th Cir. 1996).
If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of
awarding benefits. 20 C.F.R. §§ 404.1520(±)(1), 416.920(a). On the other hand, ifthe
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
determining benefits eligibility. Id.
The Commissioner's decision must be affomed if it is based on the proper legal standards
and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett, 180 F.3d at 1097; Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to suppo1i a conclusion." Sandgathe v.

Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing COllli, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddick v. Cha/er, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id. at 720.
FACTUAL AND PROCEDURAL IITSTORY
Plaintiff was born in 1961 and is classified as a "younger person" at the time of the
alleged onset date. Plaintiff completed her General Education Development (GED) in 1990 and

OPINION AND ORDER - 3

has past work experience as a cashier, ce1iified nurse assistant, office assistant, order cook and
line worker at a food processing plant. Plaintiff protectively filed her application for DIB on
December 4, 2008, alleging that she has been disabled since December 1, 2007. The claim was
denied initially and upon reconsideration. At plaintiffs request, an Administrative Law Judge
(ALJ) conducted a hearing on August 30, 2011. The ALJ heard testimony from plaintiff, who
was represented by counsel, as well as an independent vocational expeii (VE).
On September 23, 2011, the ALJ issued a decision finding that plaintiff was not disabled
under the Social Security Act. Before beginning the sequential analysis, the ALJ found that
plaintiff met the insured status requirements of the Social Security Act through March 31, 201 O;
therefore, plaintiff must have been disabled on or before that date to qualify for DIB. Tr. 14. 1 At
step one of the sequential analysis, the ALJ found that plaintiff had not engaged in SGA since
December 1, 2007, her alleged onset date. Tr. 14. At step two, the ALJ found that plaintiff
suffers from the following medically determinable severe impairments: coronaiy arte1y disease,
degenerative disc disease, degenerative joint disease, diabetes mellitus (Type II), morbid obesity,
asthma, and carpal tunnel syndrome (status post surge1y). Tr. 14. The ALJ found that plaintiff
does not have any severe mental impairments. Tr. 15. After considering plaintiffs severe and
non-severe impairments, the ALJ determined that plaintiff does not have an impaim1ent or
combination of impahments that meets or medically equals a listed impahment in 20 C.F .R. Part
404, Subpart P, Appendix 1. Tr. 16. After considering the entire record, the ALJ found that
plaintiff has the RFC to perfo1m light work as defined in 20 C.F.R. § 404.1567(b) except: she

1

"Tr." refers to the Transcript of the Administrative Record.

OPINION AND ORDER - 4

can lift and carry ten pounds frequently and twenty pounds occasionally; stand arid walk a total of
two hours in an eight-hour day; sit two hours at a time up to eight hours total in an eight-hour
day; occasionally climb stairs and ramps; cannot climb ropes, ladders, and scaffolds; can only
occasionally stoop, kneel, crouch, and crawl; avoid moderate exposure to dust, fumes, gases, and
other respiratory irritants; avoid exposure to unprotected heights, dangerous machine1y, and other
hazards; and cannot perfo1111 work requiring the use of upper extremities for repetitive tasks. Tr.
17. Based on plaintiffs RFC and the testimony of the VE, the ALJ found that plaintiff is capable
of perfo1ming past relevant work as an office helper. Tr. 20. Therefore, the ALJ concluded that
plaintiff is not disabled and step five of the sequential analysis was not reached. Tr. 20.
On Februaiy 20, 2013, the Appeals Council denied plaintiffs request for review, making
the ALJ's decision the final decision of the Acting Commissioner. Plaintiff subsequently
initiated this action seeking judicial review.

DISCUSSION
Plaintiff alleges that the ALJ committed one error in conducting the sequential analysis.
Specifically, plaintiff argues that the ALJ improperly evaluated psychological evidence in
affording little weight to the opinions of examining psychologists Kay Stradinger, Psy.D., and
John Cochran, Ph.D and concluding that plaintiff has no severe mental impahments.

1.

Doctor Stradinger

In 2009, the Social Security Administration referred plaintiff to Dr. Stradinger, who
conducted a review of plaintiffs psychological histo1y and conducted a mental status
examination. Doctor Stradinger diagnosed plaintiff with, inter alia, major depressive disorder,
attention deficit hyperactivity disorder, Cluster B personality traits, and a Global Assessment of

OPINION AND ORDER - 5

Functioning score of fifty, which indicates serious symptoms or severe impainnent. She
indicated that plaintiff had marked limitations on social functioning and activities of daily living.
The ALJ assigned Dr. Stadinger's opinion little weight. The ALJ reasoned that this was a
one-time evaluation, the evaluation was based largely on plaintiffs self-report, and the treatment
records do not support the alleged degree of limitation. Plaintiff argues that the ALJ ened in
rejecting Dr. Stradinger's opinion.
"To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state
clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). "If a treating or examining doctor's opinion is contradicted
by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate
reasons that are supported by substantial evidence." Id. In this case, Dr. Stradinger's opinion is
contradicted by that of state agency medical consultant Robert Henry, Ph.D., who found that
plaintiff was less limited. Tr. 420. Therefore, the ALJ properly rejected Dr. Stradinger's opinion
if she provided specific and legitimate reasons that are suppo1ied by substantial evidence.
Plaintiff argues that the fact that Dr. Stradinger's opinion was largely based on plaintiffs
self-report is not a legitimate reason for rejecting the opinion. "An ALJ may reject a treating
physician's opinion if it is based to a large extent on a claimant's self-reports that have been
properly discounted as incredible." Tommasetti v. Astrne, 533 F.3d 1035, 1041 (9th Cir. 2008).
In this case, plaintiff does not argue that the ALJ improperly found plaintiffs testimony
incredible; rather, plaintiff argues that Dr. Stradinger's opinion was not based largely on selfreports. This court agrees. Doctor Stradinger conducted a complete mental status examination,
in which she evaluated plaintiffs general appearance, attitude and behavior, stream of mental

OPINION AND ORDER - 6

activity/speech, content of thoughts, mood/affect, and intellectual functioning. Tr. 404-406.
There is nothing in the record to indicate that Dr. Stradinger relied more heavily on plaintiffs
self-reports than the mental status examination in forming her diagnosis. Therefore, Dr.
Stradinger's reliance on self-reports is not a specific and legitimate reason supp01ied by
substantial evidence. Ryan v. Comm'n a/Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir.
2008) (concluding that a psychiatric evaluation was not based largely on subjective complaints
when the doctor conducted a mental status examination and nothing in the record indicated that
the doctor relied more heavily on the claimant's description of symptoms).
The ALJ also reasoned that the treatment records do not support the alleged degree of
limitation. Specifically, the ALJ found it persuasive that plaintiff rarely mentioned depression or
concentration problems to her treating physicians. For support, the ALJ cites to a physical
examination in which the doctor reported that plaintiff was well-groomed and in no distress.
However, other doctor visits demonstrate signs that plaintiff may suffer from mental limitations.
For example, one year prior to the examination cited by the ALJ, another doctor described
plaintiff as "a ve1y overweight middle-aged woman who seems very tearful, laying on her side in
bed." Tr. 277. The doctor also noted that plaintiff "can answer questions appropriately, but is a
little evasive on answering questions." Tr. 277-288. Similarly, several doctors diagnosed
plaintiff with depression and attention deficit disorder after her alleged onset date. Tr. 281, 441,
450, 378. Therefore, treatment records do indicate that plaintiff suffered from mental limitations.
The Ninth Circuit does "not require that a medical condition be mentioned in every rep01i to
conclude that a physician's opinion is supported by the record." Orn v. Astrue, 495 F.3d 625, 634
(9th Cir. 2007). According, the ALJ's reasoning is not supported by substantial evidence.

OPINION AND ORDER - 7

Finally, the ALJ reasoned that Dr. Stradinger's opinion should be discounted because it
was based on a one-time evaluation. However, the fact that plaintiff visited Dr. Stradinger only
one time is alone an insufficient reason for discounting her opinion. The suggestion that an
opinion is inadequate simply because it resulted from a one-time evaluation leads to the
conclusion that all examining physician opinions should be discarded. Henderson v. Astrue, 634
F.Supp.2d 1182, 1192 (E.D.Wash. 2009). This result is umeasonable, as defendant has often
based non-disability decisions on such one-time evaluations. Therefore, the ALJ's rejection of
Dr. Stradinger's opinion merely because it was based on a one-time evaluation is not a legitimate
reason without additional support. As discussed above, the other reasons that the ALJ provided
were not supported by substantial evidence. Therefore, the ALJ erred in her evaluation of Dr.
Stradinger's opinion. This matter is remanded so that the ALJ can conduct a proper analysis of
Dr. Stradinger's opinion.

2.

Doctor Cochran

In 2011, Dr. Cochran perfonned a psychological evaluation on plaintiff at the request of
plaintiffs counsel. Doctor Cochran diagnosed plaintiff with post-traumatic stress disorder,
somatofo1m disorder, generalized anxiety disorder, dysthymia, personality disorder, and rule out
attention deficit hyperactivity disorder. He concluded that plaintiff has severe problems in
canying out detailed tasks and severe difficulty making it through a normal work week without
interference from psychological symptoms. Doctor Cochran noted that these limitations have
been present since March 2007.
The ALJ afforded little weight to Dr. Cochran's opinion because he evaluated plaintiff
nearly eighteen months after the date last insured and the statement that the psychological

OPINION AND ORDER - 8

limitations existed before the date last insured appears to be based on plaintiff's self-reports.
First, plaintiff argues that the date last insured is irrelevant to plaintiff's application for
Supplemental Security Income Benefits (SSI). However, it does not appear that plaintiff
appealed the denial of her SSI benefits, as this is the only instance in which plaintiff raises that
issue. Pl.'s Brief at 2 (failing to mention Title XVI benefits, plaintiffs states, "On July 18, 2006
claimant applied for Title II Social Security Disability Insurance (DIB) disability benefits.").
Plaintiff failed to even file a reply brief to challenge defendant's contention that SSI benefits are
not presently at issue. Therefore, this comi is not addressing plaintiffs claim for SSI benefits.

1Vfeane! v. Apfel, 172 FJd 1111, 1115 (9th Cir. 1999) ("at least when claimants are represented
by counsel, they must raise all issues and evidence at their administrative hearings in order to
preserve them on appeal.").
Second, with respect to DIB, plaintiff argues that medical evidence generated after the
date last insured may indicate that plaintiff was disabled beforehand. Accordingly, plaintiff
argues that the ALJ erred in discounting Dr. Cochran's evaluation merely because it was
conducted after the date last insured. This cou1i agrees. "[M]edical evaluations made after the
expiration of a claimant's insured status are relevant to an evaluation of the preexpiration
condition." Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir.1988). Therefore, the ALJ's rejection
of Dr. Cochran's evaluation because it was conducted after the date last insured is not a legitimate
reason.
However, harmless eiTOr applies when some of the reasons that the ALJ relied on to reject
evidence are invalid. Enors committed under these circumstance are harmless if there remains
substantial evidence supp01iing the ALJ's conclusions, and the error does not negate the validity

OPINION AND ORDER - 9

of the ALJ's ultimate conclusion. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162
(9th Cir. 2008). The key issue is "whether the ALJ's underlying decision remains supp01ied, in
spite of any error, and not whether the ALJ would necessarily reach the same result on remand."

Id at 1163 n. 4.
In this case, the ALJ provided another reason for discounting Dr. Cochran's opinion. The
ALJ reasoned that Dr. Cochran's conclusion that psychological limitations existed before the date
last insured was based on the claimant's self-rep01i. As stated above, "[a]n ALJ may reject a
treating physician's opinion if it is based to a large extent on a claimant's self-reports that have
been properly discounted as incredible." Tommasetti, 533 F.3d at 1041. Unlike Dr. Stradinger's
opinion, which was based on plaintiffs self-reports as well as a mental status evaluation, Dr.
Cochran's statement that plaintiff had mental limitations before the date last insured, is based
almost solely on self-report. Doctor Cochran's diagnostic evaluations, which were conducted in
2011, provided little insight as to plaintiffs mental health prior to the date last insured.
Accordingly, Dr, Cochran necessarily relied on plaintiffs self-rep01i to access her psychological
·functioning prior to date last insured, March 31, 2010. Even Dr. Cochran acknowledges that
plaintiffs symptoms have worsened. Tr. 596. The degree to which they have worsened from
March 31, 2010 to August 6, 2011 cannot be assessed without reliance on plaintiffs self-rep01is.
Because Dr. Cochran's opinion relied on plaintiffs self-report and plaintiffs credibility was
properly discounted by the ALJ, the ALJ provided a specific and legitimate reason for
discounting his opinion. Therefore, any error committed by the ALJ in assessing Dr. Cochran's
opinion was hannless, because the ALJ also provided valid reasons for rejecting that. opinion.

Ill
OPINION AND ORDER- 10

CONCLUSION
For the reasons provided, this court concludes that pursuant to sentence four of 42 U.S.C.

§ 405(g), the decision of the Acting Commissioner denying Teny J. Fittje's application for DIB
must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent with this
ruling and the parameters provided herein.
IT IS SO ORDERED.
DATED this

-1L day of September, 2014.

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Ancer L.
United States District Judge

OPINION AND ORDER - 11