Bottom v. Commissioner, Social Security Administration

Filing 26

ORDER: The decision of the Commissioner is REVERSED and the matter is REMANDED for further administrative proceedings. Please access entire text by document number hyperlink. Signed on 07/30/2014 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GINA A. BOTTOM,
Plaintiff,

Civ. No. 6:13-cv-01106-CL

ORDER

V.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

MARK D. CLARKE, Magistrate Judge.
Plaintiff Gina A. Bottom ("Plaintiff') seeks judicial revievv of the final decision of the
Commissioner of the Social Security Administration ("Commissioner") denying her application
for Disability Insurance Benefits ("DIB") under Title 11 of the Social Security Act. This court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). Because the Commissioner's decision is not
based on proper legal standards, the decision is r·eversed and remanded.

BACKGROUND
Plaintiff was born in May 1965. Tr. 156. Since her early childhood, Plaintiff has endured
significant trauma. Tr. 233. She has been the victim of neglect, abuse, and tremendously painful
medical prol\edures. Tr. 230-32. Plaintiff has an eighth grade education and previous work
experience a a cleaner, tagger, and fast-food worker. Tr. 163, 168.

On August 12, 2009, Plaintiff protectively filed an application for disability benefits,
alleging disability since October 15, 2007 due to "[s]chitoaffective disorder, bi-polar [disorder],
PTSD, chronic depression, attachment disorder, migraines (haven't had one for some time,
however), [and] diabetes." Tr. 156-57, 162. The Commissioner denied Plaintiff's application
initially and upon reconsideration. Tr. 17. At Plaintiff's request, a hearing was held before an
Administrative Law Judge ("ALJ") on September 22, 2011. Tr. 17. On December 30, 2011, the
ALJ issued a decision finding Plaintiff not disabled. Tr. 17-31. The Appeals Council denied
Plaintiff's request for review, rendering the ALl's denial the Commissioner's final decision. Tr.

1. This appeal followed.

DISABILITY ANALYSIS
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)(l)(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. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1.

Is the claimant performing "substantial gainful activity?" 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless

Page 2- ORDER

expected to result in death, an impairment is "severe" if it significantly
limits the claimant's physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521 (a); 416.921 (a). This impairment must have lasted
or must be expected to last for a continuous period of at least 12 months.
20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)( 4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3.

Does the clain1ant's severe in1pairn1ent "n1eet or equal" one or n1ore of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix I? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). Jfthe impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds beyond step three. At that
point, the AU must evaluate medical and other relevant evidence to assess
and determine the claimant's "residual functional capacity" ("RFC"). This
is an assessment of work-related activities that the claimant may still
perform on a regular and continuing basis, despite any limitations imposed
by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c);
416.920(e); 416.945(b)-(c). After the AL.J determines the claimant's RFC,
the analysis proceeds to step four.
4.

Can the claimant perform his or her "past relevant work" with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.

Considering the claimant's RFC and age, education, and work experience,
is the claimant able to make an adjustment to other vvork that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Jd.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. ld. at 953. The
Commissioner bears the burden of proof at step five. !d. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
Page 3- ORDER

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; 416.966 (describing "work which exists in the national
economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.

§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

Tl·m AL.J'S FINDINGS
The AU performed the sequential analysis. At step one, the AU found Plaintiff had not
engaged in substantial gainful activity from her alleged onset elate, October 15, 2007, through her
date last insured, December 31, 2010. Tr. 19. At step two, the AU found Plaintiff suffered from
severe impairments: post-traumatic stress disorder (PTSD), anxiety disorder with features of
pamc, borderline personality disorder, insomnia, polysubstance abuse, and bipolar versus
psychoaffective disorder. Tr. 19. At step three, the AU found, considered singly and in
combination, Plaintiffs impairments did not meet or medically equal any listed impairments. Tr.
20.
Next, the ALJ assessed Plaintiffs residual functional capacity ("RFC"). Tr. 22. He
determined she could perform a full range of work at all exertional levels with the following
limitations: work of a simple, routine, and repetitive nature which does not require more than
reasoning level (RL) 2, does not require public interaction, and involves no greater than
occasional interaction with co-workers. Tr. 22. At step four, the AU found Plaintiffwas capable
of performing her past relevant work as a cleaner or tagger or transitioning into other jobs that
exist in significant numbers in the national economy, including final assembler, buckle-wire

Page 4- ORDER

inserter, and eye glass frame polisher. Tr. 29-30. Therefore, he concluded Plaintiff was not
disabled, as defined by the Social Security Act, through her date last insured. Tr. 31.

STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the findings are supported by substantial evidence, 42 U.S.C. § 405(g); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means
"more than a mere scintilla, but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219,
1222 (9th Cir. 2009) (quoting Andrews v. Sha/ala, 53 F.3d I 035, 1039 (9th Cir. 1995)). It means
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

!d.
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). Variable interpretations of the evidence are insignificant if the Commissioner's
interpretation is a rational reading of the record, and this court may not substitute its judgment
for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a
reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a 'specific quantum of supporting evidence."' Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
Even where findings are supported by substantial evidence, "the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a

Page 5- ORDER

judgment affirming, modifying, or reversing the decision of the Commissioner, with or \Vithout
remanding the case for a rehearing.
DISCUSSION

Plaintiff argues the AU erred by: (1) failing to give clear and convincing reasons for
rejecting her testimony, (2) placing minimal reliance on the opinion of a treating nurse
practitioner, (3) assigning little weight t() examining clinicians' opinions and (4) finding Plaintiff
retains residual functional capacity to perform her past relevant work as a cleaner or tagger.

I.

Plaintiff's Testimony

Plaintiff argues the AU improperly discredited her testimony. When gaugmg a
claimant's credibility, an ALJ must engage in a two-step process. Tr. 22; 20 C.F.R. §§ 404.1529,
416.929. First, the ALJ must determine whether there is objective medical evidence of an
underlying impairment that could reasonably be expected to produce some degree of symptoms.

Smolen v. Chafer, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if such evidence exists, barring
affirmative evidence of malingering, 1 the AU must give clear and convincing reasons for
discrediting the claimant's testimony regarding the severity of the symptoms. !d. at 1284; see

also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A general assertion that the
Plaintiff is not credible is insufticient. The ALJ must identify what testimony is not credible and
what evidence undermines the claimant's allegations. Dodrill v. Shalala, 12 F.3d 915, 918 (9th
Cir. 1993).
The reasons an ALJ gtves for rejecting a claimant's testimony must be supported by
substantial evidence in the record. Regennitter v. Comm'r of' Soc. Sec. Admin., 166 F.3d 1294,
1296 (9th Cir. 1999). ff there is substantial evidence in the record to support the AU's credibility

1

The ALJ found no evidence of malingering in this case.

Page 6- ORDER

finding, the Court will not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002). When the evidence can support either outcome, the court may not substitute its
judgment for that of the AU. Tackett, 180 F.3d at I 098.
Plaintiff testified that she suffers from debilitating insomnia. Tr. 52. She has tried
numerous sleep medications but none have helped. Tr. 52, 77. Apart from her insomnia, Plaintiff
testified that stress and anxiety interfere with her ability to work. Tr. 53, 57. She suffers from
panic attacks about once or twice a month that make her feel as though she is going to die. Tr.
58, 78. She takes multiple medications to manage her stress and attends counseling about twice a
v.reek. Tr. 53. Plaintiff cried vvhile testifying and explained that she tends to cry when she is
stressed or forced to discuss difficult aspects of her past. Tr. 61. She noted that her inability to
sleep adds to her teary affect and stress levels. Tr. 61.
Plaintiff testified that she did not feel capable of functioning properly or following
commands in a work setting. Tr. 70. She struggles to concentrate. Tr. 70. She tends to isolate
herself and does not feel comfortable with people outside of her immediate family. Tr. 72.
The AU found Plaintiff's impairments could reasonably be expected to cause her alleged
symptoms. Tr. 23. However, considered in light of the entire record, he found that Plaintiff's
statements regarding the intensity, persistence, and limiting effects of her impairments were not
credible. Tr. 23. The AU gave several specific reasons for this determination. Plaintiff contends
they are neither clear nor convincing.
a. Inconsistencies Between Alleged Inability to \Vork and Daily Activities

First, the AU noted inconsistencies between Plaintiff's alleged inability to work and her
reported activity levels. Tr. 23. Contradiction with a claimant's daily living activities is a clear
and convincing reason for rejecting a claimant's testimony. Tommasetti v. Astrue, 533 F.3d I 035,

Page 7- ORDER

I 039 (9th Cir. 2008). In her Function Report, Plaintiff recounted playing with her grandchildren,
feeding her dog, occasionally taking the dog on short walks, preparing simple meals, doing
dishes, doing laundry, vacuuming, making the bed, attending church, going to doctor's
appointments, and shopping. Tr. 186-90. In a medical record from January 2008, Plaintiff
mentioned that she had been "putting up dryviall." Tr. 300. In June 2009, Plaintiff reported that
she had increased energy for cleaning after drinking coffee and energy drinks. Tr. 311. The ALI
called these reports "inconsistent with the claimant's alleged inability to work." Tr. 23. However,.
evidence that Plaintiff is physically capable of performing household chores is not inconsistent
vvith her alleged psychological impairments. See Smolen, 80 r.3d at 1284 n.7 ("The Social
Security Act does not require that claimants be utterly incapacitated to be eligible

f~)r

benefits,

.

and many home activities may not be easily transferable to a work environment where it might
be impossible to rest periodically or take medication."). There is no evidence that Plaintiffs
ability to perform home activities at her own pace and discretion would be transferable to a work
environment where 'there are likely external demands and time pressure.
In December 20 I 0, Plaintiff reported to her counselor that she was "overwhelmed with
anxiety and panic \Vhile shopping with her son the day after Thanksgiving." Tr. 375. The ALI
fnund the

f~lct

that Plaintiff went shopping on Black Friday, the busiest shopping day of the year,

was "entirely inconsistent" with her alleged difficulty in public places. Tr. 24. However, the

l~ct

that Plaintiff described the experience as panic-inducing tends to confirm, not contradict, her
alleged symptoms.
In April 2011, Plaintiff reported to her counselor that she helped care for her
granddaughter. Tr. 368. Plaintiff also told the counselor that she was considering moving to
Califnrnia to care for her ill mother. Tr. 368. The ALJ held that Plaintiff's ability and desire to

Page 8- ORDER

care for family members were incompatible with her testimony that she struggled to persist in
tasks. Tr. 23. He concluded it "indicates that she would be capable of persisting through a normal
workday on a regular and continuing basis." Tr. 23. However, the record does not reveal the
degree of care that Plaintiff provided for her granddaughter, nor does it suggest that Plaintiff had
the actual ability to serve as her mother's full-time caregiver. Simply put, the record does not
contain sufficient detail to contradict Plaintiffs testimony. There is no evidence to indicate that
Plaintiff performed or could perform caregiving functions at a level commensurate vvith
competitive work.
Accordingly, there is not sufficient evidence to support the AU's finding that Plaintiffs
daily activities are inconsistent with her alleged impairments. Plaintiff does not claim to be
physically limited and, thus, her physical abilities do not invalidate her allegations of
psychological impairment. Nor is there sufficient evidence to suggest that Plaintiff engages in
activities that are readily transferable to the work setting.

b. Lack of Candor
Second, the ALJ noted multiple issues that made him question Plaintiffs candor.
Inconsistent statements regarding symptoms and other testimony that appears less than candid
are valid factors for an ALI to weigh when determining a claimant's credibility. Tommaselfi, 533
F.3d at 1039. The AU stated that "[t]hough the clamant alleged panic attacks, in November
2009, the claimant reported to Paula Belcher, Ph.D., a consultive examiner, that her 'panic
attacks occur about once a month."' Tr. 23. There is no discrepancy bet ween Plaintiffs
testimony and her report to Dr. Belcher. Plaintiff testified that she suffers from panic attacks
"-once or twice a month depending on my level of, the intensity of my therapy or how I'm feeling

Page 9- ORDER

in my body." Tr. 78. In 2009, she told Dr. Belcher that she has panic attacks about once a month.
Tr. 239. These two statements support, rather than contradict, one another.
The ALJ interpreted a counselor's note that Plaintiff \Vas "seeking counseling on the
forceful recommendation of her physical care physician and her attorney" to mean that Plaintiff
did not independently believe that her impairments warranted treatment. Tr. 325, 24. This
interpretation is not supported by the evidence. The same counselor's note referenced by the ALJ
contains a clear explanation for Plaintiffs apprehension. The counselor noted that Plaintiff
"regards the counseling process with a lot of anxiety and is not excited at the prospect of meeting
with someone weekly, but does seem to want to work on her problems." Tr. 325. Plaintiffs
testimony is entirely consistent with the counselor's note. Plaintiff testified that therapy was
forcing her to confront difficult aspects of her past. Tr. 54. "When 1 go through therapy and we
talk about things that have happened and it makes me have nightmares and it brings back
!lashes," she said. ·rr. 61. However, she said that she wanted to feel better and spoke of therapy
. as a means to that encl. Tr. 54, 61.
The ALJ stated Plaintiff painted an "exaggerated picture of her facility with learning new
tasks." Tr. 24. Specifically, PlaintifTtestified that she did not own a cell phone and did not know
how to use one "very well." Tr. 42-43. However, a medical note dated March 31, 2009 described
Plaintiff as "computer savvy" and noted that she had downloaded some coupons for sleep
medication. Tr. 299. This is not a direct contradiction. It is conceivable that a person could be
acquainted with computers but not cell phones. The court will assume it was rational for the ALJ
to view these tvvo statements as in potential conflict -

one suggesting

f~1miliarity

with

technology and the other denying it. However, this possible discord does not alone constitute
sufficient evidence to support the AU's negative credibility finding.

Page 10- ORDER

The ALJ also questioned Plaintiff's candor because she responded with a simple "no" to
his inquiry regarding whether she ever babysits her grandchildren. Tr. 23. The record shows that
Plaintiff has cared for her grandchildren in the past. 1-!mvever, it is not clear whether she has
done so as the solitary responsible adult or whether others have taken the lead role. Regardless,
the ALJ reasonably questioned Plaintiff's honesty given her failure to make clear that she does
care for her grandchildren in some capacity.
The ALJ held Plaintiff's alleged inability to find effective treatment for her insomnia was
inconsistent with the overall record. Tr. 24. In support of this finding, the ALJ pointed to a May
2009 medical report noting that Plaintiff received some benefit from Am bien, Tr. 295; Plaintiffs
husband's statement that Plaintiff's insomnia results from her discontinuation of medication, Tr.
179; Plaintiff's statement that she could not afford Ambien, Tr. 288; the lack of discussion of
insomnia in Plaintiff's counseling treatment notes, Tr. 363-376; Plaintiff's caffeine consumption,
Tr. 70, 311; and a May 20 I I report that Lorazepam was \Vorking for her insomnia, Tr. 350.
Only the husba·nd's statement, the May 20 1'1 medical record, and, to a lesser degree, the
May 2009 medical report support the AU's conclusion. Plaintiff's husband completed a function
report on her behalf in which he noted that Plaintiff's condition affects her sleep "when she stops
taking her medication." Tr. 179. This indicates that Plaintiff's insomnia is controlled with
medication \vhich directly contradicts her testimony. Tr. 52-53, 77. In May 2011, a nurse from
Community Health Centers of Lane County noted that "Lorazepam is working for [Plaintiff's]
anxiety and insomnia." Tr. 350. I-Imvever, Plaintiff testified that she did not receive any relief
from Lorazepam during the hearing. Tr. 52-53, 77. Similarly, a medical record from May 2009
noted that Ambien marginally helped Plaintiff sleep; however, she failed to testify to that fact.
Tr. 295. The AU rightly weighed these inconsistencies against Plaintiff's credibility.

Page 11 -ORDER

In further regards to Ambien, the AL.J found Plaintiff's testimony that it was "a terrible
medication" did not agree \vith the medical record showing her sleep improved while on the
drug. Tr. 24. The relevant portion of the referenced medical record states "[t]he Ambien helps
her to sleep but it is only four hours and she has difficultly remaining asleep." Tr. 295. Ambien
helped, but by no means solved, Plaintiff's sleeplessness. Plaintiff disliked the drug because of
its extreme side effects. While on Ambien, Plaintiff sleepwalked and unknowingly engaged in
harmful conduct like cutting her own hair, eating uncontrollably, and pulling out a tooth. Tr. 286,

323. Plaintiff's characterization of Ambien as "terrible" is not inconsistent with her recorded
experience with the drug. Furthermore, the court does not track the AU's reasoning for
interpreting Plaintiff's statement that she cannot afford Ambien to imply that she received sleep
relief from it. Tr. 24. The record does not support this logical leap.
The AU's statement that Plaintiff's counseling treatment notes do not discuss insomnia
is not accurate. While the counselor's relatively sparse notes do not use the term "insomnia," the
counselor did note that Plaintiff complained about "feeling very tired most of the time." Tr. 366.
Furthermore, in her testimony, Plaintiff mentioned that she was seeing one counselor for her
PTSD and another, Ayelet Amittay, to address her insomnia. Tr. 74. The counseling notes cited
by the ALJ are from Northvvest Christian University Counseling Clinic. Tr. 363. Ayelet Amittay
is associated with RiverS tone Clinic. Tr. 378. Accordingly, Plaintiff gave a sound reason for why
Northwest Christian University Counseling Clinic's notes might not detail her sleep issues she is receiving counseling for her insomnia elsewhere.
The AL.J found that that Plaintiffs caffeine consumption \vas a "significant factor in her
sleeplessness." Tr. 24. The ALJ did not cite to any medical opinions to support this conclusion.
Tr. 24. Rather, he referenced a provider's notation that Plaintiff was "drinking more coffee/Red

Page 12- ORDER

Bull" and feeling more energy. Tr. 311. The provider

w~1o

made the note did not indicate any

concern with Plaintiff's reported consumption. At the hearing, Plaintiff testified that she drank
one cup of coffee in the morning "if that." Tr. 70. Accordingly, neither the medical evidence nor
Plaintiff's testimony supports the AU's conclusion that Plaintiff is self-creating disruptions in
her sleep patterns.
In conclusion, the ALJ rightly questioned Plaintiffs candor based on Plaintiff's

f~1ilure

to

clarify that she cared for her grandchildren in some capacity and Plaintiffs failure to specify that
her sleepnessness improved at least partially or temporarily with the use of medication. As
discussed above, the other reasons given by the ALJ for doubting Plaintiff's honesty are invalid.
c.

Gaps in Tt·catmcnt

Third, the ALJ noted that a gap in Plaintiff's treatment indicates her "symptoms are not
as severe as alleged." ·rr. 24. Specifically, Plaintiff's medical records show that Plaintiff did not
seek out medical treatment or medication for her psychological impairments for two years, from
March 2007 to March 2009. Tr. 299. Evidence that a claimant has

f~iled

to seek or follow a

prescribed course of treatment, if not adequately explained, can help justify an AU's adverse
credibility determination. Fair v. /Joweh, 885 F.2d 597, 603 (9th Cir. 1989).
Inability to pay is a valid explanation for a claimant's failure to pursue treatment. See
Om, 495 F.3d at 638. Here, the record reveals that Plaintiff has not always been able to afford

treatment because she has not had consistent health insurance. Tr. 322-23. However, the ALl's
decision states that "the claimant testified that her health insurance ran out in 2009," thus
indicating that her gap in treatment occurred while she was insured. Tr. 24 (emphasis added).
This is not an accurate depiction of Plaintiff's testimony. The ALJ did not ask Plaintiff vvhen her
health insurance terminated. Rather, he specifically asked whether she had been insured "since

Page 13- ORDER

2009." Tr. 47. In response, plaintiff testified that her health insurance ran out before 2009. Tr.
48. It is not clear \Vhen precisely this occurred. The AU did not offer any support for his
assertion that Plaintiff was insured for any portion of time during her gap in coverage.
Accordingly, .it was inappropriate for the ALJ to discount the possibility that Plaintiff did not
pursue treatment because of her financial situation.
In any event, the A LJ noted that Plaintiff \Vas prone to deviate from prescribed courses of
treatment and to cease medications after perceiving improvement. Tr. 25. In a third party
function report, Plaintiff's husband said "she always stops taking her medication because she
thinks she is. healed, and gets insomnia for months at a time." Tr. 179. Plaintiff herself
acknowledged this tendency. A medical progress note dated May 19, 2009 says "[PlaintiffJ
reports history of starting medications and then made [sic] to feel by comments by those close to
her that she :did not need to take them and would stop just as medications were becoming
I

efficacious." :Tr. 295. Dr. Belcher noted in her November 2009 psychological assessment of
Plaintiff that rshe "has been non-compliant with medication." Tr. 241. On April 16, 2010, Dr.
Christine Jehsen-Fox admonished Plaintiff for taking medication without seeking out
I

professional guidance first. Tr. 286. Together, these portions of the record demonstrate that
I

I

Plaintiff repe~atedly deviated from medical guidance without reasonable explanation. The AU
did not err in !taking Plaintiff's noncompliance with medical treatment into consideration.
I

d.! Success of Treatment

Four!~, the ALJ found Plaintiffs symptoms are generally well controlled with treatment.

l

Tr. 25. The effectiveness oftreatment to control Plaintiff's symptoms is relevant to determine the
I
cred ihi Iity o her

rcpres~ntations regarding hersymptoms ~ severity, See WcoTe v, Comm 'r of the

Soc. Sec. Admin., 439 I· .3d I 001, 1006 (9th Cir. 2006). I he ALJ c1tes to mult1ple places Jn the

Page 14- 01DER

record where Plaintiff reported improvement with certain drugs. Tr. 25. A May 2009 medical
record notes 'j[Piaintiffl knows the medications are working for her so she is going to continue
I

"I

taking them. Tr. 295. In June 20 I 0, Dr. Jensen-Fox noted that l:laint: IT'seemed "to be overall

domg okay on Prozac wtth now msomma bemg her greatest tssue.

I r.

.)2.).

Of parttcular wetght,

Plaintiff reprLentecl in a patient health questionnaire, elated May 19, 2009, that her difficulty
with sleeping land concentrating have "not [made it] clifficuit at all" for her to do work, take care
of things at hJ,rne, or get along with other people.
;

·rr. 312.

The Alu \Vas right to consider these documented successes. The record indicates that
I

treatment

oft~rs
I

Plaintiff some relief. The level and duration of this relief is unclear. However.

.

I

given plaintilT's habit of deviating from prescribed courses of treatment at the first sign of
'

I

improvement,! it is equally unclear whether the temporary nature of Plaintiffs relief is
'

attributable toi inadequate treatment or Plaintiffs noncompliance. Where, as here, evidence is
susceptible t~multiple rational interpretations, the court may not second guess the AU's
judgment. Taekett, 180 F.3cl at 1098. The record supports the AU's conclusion that Plaintiffs
!

symptoms areI responsive to treatment. Accordingly, he did not err in evaluating this against
Plaintiff's

cre~ibility.
I

c. ~Validity of AL.J's Credibility Determination

Some

bf the AU's reasons lor cliscreditinbo Plaintiffs testimony are valid and others are
I
.

not. The court need not uphold all of the AU's reasons for discrediting Plaintiff in order to
I

affirm the AU's ultimate decision so long as substantial supporting evidence remains. Carmickle
I

V. Comm 'r ojrJC. Sec. Admin.' 533 F.3cl 1155, 1162 (9th Cir. 2008).
Weighling the AU's reasons for discrediting Plaintiffs testimony

omitting those

I

deemed invali cl- the court finds that substantial evidence supports the AU's decision. Given
1

I
!
I

Page 15- ORDER
I

I

Plaintiffs lesl than candid testimony, non-compliance with prescribed courses of treatment, and
I

.

the apparent fffectiveness of treatment to control Plaintiff's symptoms, the AU reasonably
assigned littlelweight to Plaintiff's statements regarding her condition.

II.

Opinibn of Treating Nut·sc Pntctitioncr
PlaintJf argues the AU improperly discounted the opm1on of a treating nurse

practitioner, Jyelet Amittay. In order to reject the testimony of a medically acceptable treating
I
I

source, the AU must provide specific, legitimate reasons based on substantial evidence in the

record. Valen1ine v. Cnrnm 'r Soc. Sec Admin., 57 4 F.3d 6&5, 692 (9th Ci r. 2009). However,
nurse

practiti~ners are delined as "other sources," not acceptable medical sources, and are thus

entitled to lesJ er deference. 20 C.F.R. § 404.1513(d); Jvfolina v. Astrue, 674 F.3d 1104, 1111 (9th

Tt
1

'

Cir. 20 12).

ALl need only give germane reasons to discount Ms. Amittay's opinion. Molina,

674 F.3d at 1111.
The A~~.l assigned little weight to Ms. Amittay's opinion for three reasons. First, the ALl
I

held Ms. Amittay's opinion "provides no utility in assessing the claimant's limitations prior to

her date last

ir~sured" because she did not specify when Plai nti W s symptoms became disabling
i

and she issued her opinion months alter Plaintiff's date last insured. Tr. 28. In order to obtain
disability beJfits, Plaintiff must demonstrate that she was disabled prior to her date last insured:
December 31,12010. Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991); ·rr. 17. Any
deterioration

J
I

Plaintiff's condition subsequent to the eligibility period is irrelevant. Wee/man v.

I

i

Sullivan, 877 f2d 20, 22 (9th Cir. 1989); Waters v. Gardner, 452 F.2d 855, 858 (9th Cir. 1971 ).
I

However, the\ Ninth Circuit has specifically held that "medical evaluations made after the
expiration of Ia claimant's insured status are relevant to an evaluation or the preexpiration
I

I

condition." Lelter v. Choler. 81 F.3d 821, 832 (9th Cir. 1995) (quoting Smith v. Bowen, 849 f.2d
i
I

Page 16-0R~ER

-

I

I
1
1n? 1?Y (9 t1
1

---,

__ )

c·1r.

1988); see also Barnard v. Comm 'r of Soc. Sec. Admin., 286 F.App'x 989,

1

I

995-96 (9th f:ir. 2008) ("testimony is frequently taken af1er the date last insured due to a
I

significant tirte lapse between the claim tOr benefits and the ALJ hearing"). Accordingly, the

ALJ was not ¢ntitled to reject Ms. Amittay's opinion merely because it was issued in September
I

I

2011. Furthe1jmore, the AU incorrectly stated that Ms. Amittay failed to specify Plaintiffs
disability onsb date. Though Ms. Amittay did not precisely pinpoint the date of onset, she did
I

I

opine that Plaintiff had been disabled for "many years." Tr. 382.
Secorl the A LJ found Ms. Ami ttay' s opinion con tl ictcd with her treatment notes which

"appear to indicate that the claimant would be capable of performing work within the bounds of
I

the above reLdual functional capacity." Tr. 28. Inconsistencies between a provider's medical

II .

.

..
.
C'
notes an d cone us1ons prov1cIe a -spec1'f-1c an d l eg1t1mate- more tI1an JUSt germane- reason 1or

rejecting the provider's opinion. Tommasetti, 533 F.3d at I 041. fn August 2011, Plaintiff
reported to Ms. Amittay that she could perform simple math, and recall with relative ease. Tr.
360. 1-IowevJ in September 20 II, Ms. Amittay completed a Mental Residual Function Capacity
Report on Pllaintiff's behalf in which she noted that Plaintiff \vas "markedly limited" in her

I
.
.
.
"82
.
a b I'l'It)' tO canr OUt very Sl10rt ancl Simp le 111Structl011S. "I' r. .J . "1'111S.111COngruency WaS a germane
reason for discounting Ms. Amittay's opinion.
Thir) the AU noted that Ms. Amittay "appears to have relied upon the claimant's
subjective cimplaints, and the claimant is not fully erect ihie." Tr. 28. An A LJ may reject a

medical opinion that is based on a non-credible claimant's self-reports. Tommasefti, 533 F.3d at
I 041. BecauL substantial evidence supports the ALJ 's finding that Plaintiff's testimony was not
tlilly crediblt, it was proper for the AU to disregard Ms. Amittay's opinion to the extent it

hinged on Plaintiff's representations. In conclusion, the AL.J reasonably discounted Ms.

Page 17- OiDER

I

Amittay's op1mon for two germane reasons: her opinion displayed inconsistencies with her
treatment notjs and was based on Plaintiff's discredited subjective complaints.
Ill.

OpiniLs of Examining Psychiah·ist and Examining Psychologist
I

Plaintiff argues the ALJ improperly rejected the medical opinions of two exammmg
clinicians: Dr. Michel Farivar, a psychiatrist, and Dr. Belcher, a psychologist. When assessing an
AU's treatment of medical evidence, the Ninth Circuit distinguishes between treating,
..
. .
. .
exammmg, anld non-exammmg pl1YSICians. An

I
A~.I

.
genera ll y must accor d greater weight to a

treating physLan than a n.on-treating physician and to an examining physician than a nonexammmg

ph~sician. Lesler, 81

F.3d at 830. An AU must provide "clear and convincing"

I

reasons for rejecting the uncontradicted opinion of an examining physician. Pilzer v. Sullivan,
908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by
another physician's opinion, the AL.J must provide "specific, legitimate reasons" for discrediting
the examining! physician's opinion. Lester, 81 F.3d at 830.
In its responsive brief, the Commissioner states that Dr. Farivar and Dr. Belcher's
opinions were contradicted by the opinion of a non-examining physician, Dr. Kordell

Kcnncnn e '_

~e f." s Res p., a

1 I 3. As

SllC h,

Ihe Co mm i ssi on arg r: es Ihat the A L.l m

~reI

y

nceded :o

g1ve specihc and legitimate reasons for reJectmg the clmJCians assessments. Del.'s Resp., at l.J.
However, the AL.l did not offer this as a reason for discrediting Dr. Belcher and Dr. Farivar's
opinions. In fact, far from finding Dr. Kennermer's opinion in conOict with the other two
doctor's opinlns, the AU called Dr. Kennemer's opinion "consistent with the overall record."
Tr. 29 (empllsis added). This court must only review reasons provided by the ALJ in his
disability detJ.mination and may not- allirm the AU on a ground upon which he did not rely.

0/'11, 495 F.J at 630. Accordingly, the court will not consider the relationship between the

ParLe 18

~

~ORDER

I

opinions of Dr. Kennermer. Dr. Belcher. and Dr. Farivar. Since the AU did not determine that
I

,

,

the clinicians'! opinions were controverted, the more rigorous clear and convincing standard
applies to his rjection of them.
On November 9, 2009, Dr. Farivar conducted a psychiatric diagnosis assessment of
Plaintiff. Tr. 230. Dr. Farivar discussed Plaintiff's spontaneous flashbacks and frequent
nightmares ol past trauma, sleeplessness, consta~: anxi~ty •. depression, panrc,. s~lf-neglect,

IsolatiOn, moo Clmess, and hallucmations. I r. 230, 2_)_), Dr. hmvar descnbed Plamtiff s affect as
1

"tearful and highly anxious." Tr. 233. He diagnosed Plaintiff's symptoms as representative of
I

PTSD, generalized anxiety disorder, and panic disorder. Tr. 234. He stated that further analysis
\Vas needed to determine whether Plaintiff also has bipolar disorder, social phobia, or borderline
personality dirrder. Tr. 233-34. l-Ie noted Plaintiff's polysubstance dependence was in partial
remission while her alcohol dependence was still active. Tr. 234. Dr. Farivar opined Plaintiff had
I

limited hope for recovery at the time of his evaluation. Tr. 234. 1-Ie said Plaintiff was a likely
candidate for disability benefits because she was "significantly disabled" by her psychiatric
symptoms. Til 234. However, he conceded that he lacked knowledge regarding Plaintiffs
personal rcsor to pursue treatment and her receptivity to medication. Tr. 234. He did not

entirely foreclose Plaintiff's chance of recovery, noting that Plaintiff's vocational capabilities
should be re-Jssessed once she achieves greater psychiatric stability because "I believe there is
still some pjtential there." Tr. 234. Dr. Farivar gave Plaintiff a Global Assessment of

I

Functioning (CBAF) score of 35-40. Tr. 234.
I

Later that same month, Dr. Belcher conducted a psychological assessment of Plaintiff. Tr.
235. Plaintilf

~as distressed and tearful throughout the assessment. Tr. 235. Dr. Belcher tested

Plaintiff's rec0llection and concluded that she displayed no significant attention, concentration,

Page 19- ORDER
I

i

or memory impairments except when she became emotionally distressed. Tr. 236. Dr. Belcher
hypothesized that Plaintiff "suffers from hallucinations and delusions with pei·ioclic major
depressive ami hypomanic episodes" as well as PTSD clue to past trauma. Tr. 240. She concluded
that "[u]ntil Jch time as this client can maintain emotional stability, she is a poor candidate for
the

workplace~."

Tr. 241. Dr. Belcher assessed a GAP score of 40. Tr. 241.

'T'he AU "thoroughly reviev.red the clinical findings and functional assessments provided
by the clinici,ans" and deciclecl to give "very little weight" to their GAF scores.

·rr.

27. He

explained thcl it is not evident to what degree these scores vvere based on the cliscreclitecl
Plaintiffs reJesentations and, regardless, the GAF scale does not directly correlate to Social
Security seveLy requirements for mental disorder listings .. Tr. 27. Beyond the GAF scores, the
ALl did not llirectly discuss his reasoning for rejecting the clinicians' shared conclusion that
Plaintiffs ps{chn logical impai rmenls made her a poor caod idate for employment The decision

does not indicate that the AU weighed these medical opinions when making his ultimate
disability cletLmination. On appeal, both Plaintiff and the Commissioner agree that the AU did
not credit

Dr,~. Belcher and Dr. Farivar's opinions. They disagree as to whether he provided

lef!.allv surticient reasons for doinbo so.
~

.

I

To the extent the AU discounted the clinicians' op1111ons because of their reliance on
Plaintiffs stLements, his deci_sion is not supported by substantial evidence. An AU may
I. . . .
. .
.
.
.
.
.
. I
proper I y reJer a pl)'SICJan·s opm1on prem1se d exc l us1ve Iyon a c Immanrs su b' . comp Iamts
.1ect1ve
that the AU has already validly discounted. Fair, 885 F.2cl at 605. Hmvever, "an AU does not
I
. .
.
' .
. .
. .
prOYI'cl e CIear an d COnVll1Cll1g reasons for reJeCtmg an exam111111g p IlYSICian

I

S

0p11110n b y
•

•

questioning the credibility or the patient's complaints where the doctor does not discredit those
11
. . . w1t 1 .
.
.
comp Iamts anc supports ,. u , t1mate op1mon. , , 11s own o lJservatlOns.·""])
11s
\yon

Page 20- ORDER

v.

C'
/omm I/'
r o

Soc. Sec., 528 F.3d 1194, 1199-200 (9th Cir. 2008). I-I ere, both doctors' opinions were based on
their own observations as well as Plaintiffs self-reporting. Dr. Belcher conducted "a survey of
the current J1otional and mental state" of Plaintiff. Tr. 235. She evaluated Plaintiffs "mood.

f~

~~

I
.,
a teet, attention, concentration, an d memory... rl" r. 2"- S1m1'I ar Iy, D r. 'anvar per f'anne d a menta
.)).
0

0

0

0

~·

status examinLion and recorded his observations of Plaintiff's mood. affect. and demeanor. Tr.
I

.

.

233. Nothing in the record suggests that either clinician disbelieved Plaintiffs description of her
symptoms or lthat the doctors relied on those descriptions more heavily than their own clinical
observations. See Regennitter, 166 F.3d at 1300 (substantial evidence did not support AU's
finding that examining psychologists took claimant's "statements at face value" vvhere
psychologists] reports did not contain "any indication that [the claimant] was malingering or
deceptive").,ccordingly, the AU's negative credibility finding for Plaintiff did not undermine
the value of Dr. Belcher and Dr. Farivar's professional opinions.
The Jly other possible reason for rejecting the clinicians' opinions that can be gleaned
I

from the i\Lr decision is Plaintiffs consumptio:1 or alcohol. Pia inti ff reported to Dr. Farivar
that she drank! about a bottle of \-vme a week. I r. 2.) I. She expressed a des1re to stop because she
felt it reflecjd a pattern of substance abuse. Tr. 231. Dr. Farivar stated Plaintiff "needs to stop

drinking ahsollutely" and expressed an interest in evaluating the relationship between Plaintiffs
drinking, anxiety, and insomnia. Tr. 234. A few weeks later, Plaintiff reported to Dr. Belcher that
she had "pro1ised a doctor a few weeks ago that she would not drink any longer." Tr. 240. The
record indicaLs that Plaintiff maintained that promise. Tr. 289. Plaintiff was no longer drinking
alcohol by

t!J time she met with Dr. Belcher. Tr. 289.

I
'
I .
.
d' b'l'
b {" ". f'
.Underl 42 U.S.~ .. § 423(d)(2)(C), a c a1man.t ca~1not rece1v.e 1sa 1 1~ e1~e 1ts .. :
alcohol!sm or drug add1et1on would ... be a contnbutmg factor matenal to the Comm1sstoner s

Page 21- ORDER

determination that the individual is disabled." To ensure compliance with this provision, the ALl
must conduct a drug abuse and alcoholism analysis and determine which of the claimant's
disabling limirtions would remain if the claimant stopped using drugs or alcohol. 20 C.P.R. §
404.1535(b). If the remaining limitations would still be disabling, then the claimant's drug

addiction or al[cohnlism is not a contributing factor material to his disability. !d. If the

remaini~g

l!mitations would not be d1sablmg, then the claimant's substance abuse IS matenal and benehts
must be denieL !d.
I

·rhe ALl did not engage in this analysis. Instead, he informally compared Dr. Farivar's
relJort with a tedical record from Januar)' 2010. Tr. 26. AccordinQ to the ALJ. the two records
t

I

.

~

.

show that Plaintiff "demonstrated significantly improved functioning since attempting to limit
the consumptiion of alcohol." Tr. 26. However, looking at these two records, it is unclear what
significantly 11provecl for Plaintiff. 'The referenced 2010 record discusses Plaintiff's long-term

problems

w~J depression, anxiety, and agoraphobia and notes ,that Pia mti ff was tearlltl during

discussion. I F. 289. I h1s demonstrates contmll1tv with Plamtdf s condition In November 2009.
not a departL1 from it. Indeed. the AU himself: noted that alcohol's exacerbation of Plaintiff's
symptoms wL "limited." Tr.· 26. Accordingly, substantial evidence does not support the
-. · ·
·
d
·
·
·
· ,.erence t1 I Dr. l·anvar·s o bservat1ons c,.1 not re nect 1) 1 · · t·f-·s genume con c1·Ilion given 1
111
1aU
·
a111t1 ·
1er
alcohol constLption. What's

1~1ore, Plaintiff's alcohol consumption did not aff'ect the reliability

of Dr. I3elchL's opinion in any way since Dr. Belcher saw Plaintiff when she was already
abstaining. jccorclingly, Plaintiff's relationship with alcohol was not a sufficient reason to
.
· 1er
d 1scount e1t 1 I d actors·· report.

The

)L.J committed legal error by failing to articulate clear and convincing reasons for

disregarding the medical opinions of Plaintifr's examining physicians. Cotton v. 13mven, 799

Page 22- ORDER

F.2d 1403, 1408-09 (9th Cir. 1986); superseded by statute on other grounds as recognized in
Bunnell v. Sullivan, 912 F.2cl 1149, 1154 (9th Cir.1990). The error is not harmless because the

court cannot confidently conclude that no reasonable AU could have reached a di!Terent
disability determination had the doctors' reports been fully credited. Stout v. Comm'r, Soc. Sec.
Admin., 454 F.3d I 050, 1056 (9th Cir. 2006). Accordingly, the AU's decision to reject their

opinions must be reversed. Linge'1/elter, SO;+ F.3d at 1045.
IV.

Residual Functional Capacity to Pcd'orm Past Relevant \Vo.-1{

Finally, the Plaintiff contends the AL.J erred in finding she retained the ability to perform
her past work as a cleaner or tagger. The AU made this finding afkr instructing a vocational
expert on Plaintiff's RFC. The AL.J erroneously discredited two examining clinicians' opinions
and thus did not incorporate their conclusions into the RFC or his instructions to the vocational
expert. Because it is not clear from the record whether the vocational expert's testimony

\NOLlie!

have required a disability lincling if the clinicians' opinions had been properly aclclressecl, further
proceedings are necessary.

REMAND
"The decision whether to remand a case for additional evidence, or simply to award
benefits is within the discretion of the court." Sprague v. Bowen, 812 F.2cl 1226, 1232 (9th Cir.
1987) (citing Stone

v.

Heckler, 761 F.2cl 530 (9th Cir. 1985)). Generally, \Vhen a court reverses

an administrative decision, "the proper course, except in rare circumstances, is to remand to the
agency for aclclitional investigation or explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th
Cir. 2004) (quoting INS

v.

Ventura, 537 U.S. 12, 16 (2002)). 'The issue turns on the utility of

further proceedings. A remand for an award of benelits is appropriate when no useful purpose

Page 23- ORDER

vvould be served by further administrative proceedings. Rodriguez v. Bowen, 876 F.2d 759, 763
(9th Cir. 1989); Smolen, 80 F.3d at 1292.
In some circumstances, where the AU has improperly credited testimony or

!~tiled

to

consider it, the Ninth Circuit has credited the rejected testimony. See Smolen, 80 F.3d at 1292;
see also Lester, 81 F.3d at 834. However, in Connell v. Barnhart, 340 F.3d 871, 876 (9th Cir.

2003), the Ninth Circuit determined that the "crediting as true" doctrine is not mandatory and the
court has some flexibility in applying the doctrine.

On this record, the Court exercises its

discretion and remands for further proceedings. See Stout, 454 F.3d at I 053-54, I 056-57;
Connell, 340 F.3d at 876.
ORDER

Based on the foregoing, and pursuant to sentence four of42 U.S.C. § 405(g), the decision
of the Commissioner is REVERSED and the matter is REMANDED for further administrative
proceedings. The AU should:
(I) Review Dr. Farivar and Dr. Belcher's opm1ons and either accept them as true,
applying their contents forward into his RFC determination and instructions to the vocational
expert, or properly reject them by presenting clear and convincing reasons.
(2) Make a determination concerning plaintiff's disability application, after conducting
the analysis outlined above.

MARK D. CLARKE
United States Magistrate Judge

Page 24- ORDER