Frazier v. Commissioner of Social Security Administration
Filing
24
Opinion and Order. The Court REVERSES the final 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 11/20/2014 by Judge Anna J. Brown. See attached 34 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CONNIE JO FRAZIER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
ARTHUR WILBER STEVENS, III
Black Chapman Webber & Stevens
221 Stewart Avenue, Suite 209
Medford, OR 97501
(541) 772-9850
Attorneys for Plaintiff
1 - OPINION AND ORDER
6:13-cv-01279-BR
OPINION AND ORDER
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
KATHRYN ANN MILLER
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
(206) 615-2139
Attorneys for Defendant
BROWN, Judge.
Plaintiff Connie Jo Frazier seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act (the Act) and Supplemental Security Income
(SSI) under Title XVI of the Act.
This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).
Following a thorough
review of the record, the Court REVERSES the Commissioner’s final
decision and REMANDS this matter.
2 - OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed her applications for DIB and SSI on
March 10, 2006.
Tr. 19.1
and on reconsideration.
Her applications were denied initially
An Administrative Law Judge (ALJ) held a
hearing on August 13, 2009.
Tr. 94.
was represented by an attorney.
At the hearing Plaintiff
Plaintiff, Janice Frazier
(Plaintiff’s mother), and a vocational expert (VE) testified at
the hearing.
Tr. 95.
The ALJ issued a decision on September 25, 2009, in which he
found Plaintiff is not entitled to benefits.
Tr. 146.
The
Appeals Council, however, reversed and remanded the matter back
to the ALJ for further consideration of medical testimony and
Plaintiff’s mental impairments.
Tr. 149-50.
On remand an ALJ held a second hearing on November 18, 2011.
Tr. 39.
At the hearing Plaintiff was represented by an attorney.
Plaintiff, Plaintiff’s mother, and a VE testified at the hearing.
Tr. 40.
The ALJ issued a decision on December 28, 2011, in which he
once again found Plaintiff is not entitled to benefits.
Tr. 32.
That decision became the final decision of the Commissioner on
May 29, 2013, when the Appeals Council denied Plaintiff’s request
for review.
Tr. 1-3.
1
Citations to the official transcript of record filed by
the Commissioner on February 18, 2014, are referred to as “Tr.”
3 - OPINION AND ORDER
BACKGROUND
Plaintiff was born on April 4, 1965, and was 46 years old on
the date of the hearing.
Tr. 45, 98.
Plaintiff graduated from
college with a Bachelor of Arts in public relations.
Tr. 45.
Plaintiff has prior relevant work experience as a secretary,
legal secretary, general clerk, appointment clerk, and customerservice representative.
Tr. 84-85.
Plaintiff alleges disability since August 1, 2003, due to
“[c]hronic nerve pain,” lower-back pain, fibromyalgia, and
seizures.
Tr. 237, 276.
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 except where noted.
See Tr. 24-28.
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 her
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
4 - OPINION AND ORDER
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
453, 459–60 (9th 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.
42
U.S.C. § 405(g).
See also Brewes v. Comm’r, 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.
Ryan v.
Comm’r of Soc. Sec., 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).
5 - OPINION AND ORDER
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
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 of
Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
See also
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§§ 404.1520, 416.920.
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), 416.920(a)(4)(I).
See also Keyser, 648 F.3d at 724.
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.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 416.920(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
6 - OPINION AND ORDER
gainful activity.
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.
§ 416.920(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
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), 416.920(e).
(SSR) 96-8p.
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
at *1.
20 C.F.R.
SSR 96-8p,
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)).
The assessment of
a claimant's RFC is at the heart of Steps Four and Five of the
sequential analysis when the ALJ is determining whether a
claimant can still work despite severe medical impairments.
An
improper evaluation of the claimant's ability to perform specific
7 - OPINION AND ORDER
work-related functions "could make the difference between a
finding of 'disabled' and 'not disabled.'"
SSR 96-8p, at *4.
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.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 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.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
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),
416.920(g)(1).
ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since March 15, 2010, her
application date.
Tr. 22.
8 - OPINION AND ORDER
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease of the cervical spine,
“status post fusion”; degenerative disc disease of the lumbar
spine, “status post laminectomy”; fibromyalgia; histrionic
personality disorder with dependent features; “status post ulnar
nerve transposition”; pseudoseizures; depression, mild; pain
disorder; and obesity.
Tr. 22.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.
Tr. 22-23.
In his RFC assessment the ALJ found
Plaintiff has the functional capacity to
lift and carry 20 pounds occasionally and 10 pounds
frequently, stand and/or walk for six hours per eighthour work day, and sit for six hours per eight-hour
work day. She can perform no more than frequent
kneeling and climbing ramps or stairs, and she can
perform no more than occasional balancing, stooping,
crouching, crawling, and climbing ladders, ropes, or
scaffolds. The claimant should avoid continuous use of
her right arm and hand. She is limited to occasional
overhead lifting and reaching bilaterally. She has no
visual or communicative limitations. Due to her
orthopedic conditions, the claimant should avoid
concentrated exposure to vibrations, and she should
avoid hazardous, dangerous machinery or unprotected
heights due to medication. The claimant is limited to
remembering, carrying out, and performing out [sic]
simple instructions and tasks. She should [not]
perform work that requires close interaction with the
general public, but she is capable of casual contact.
Tr. 23.
At Step Four the ALJ found Plaintiff is unable to perform
any past relevant work.
9 - OPINION AND ORDER
Tr. 30.
At Step Five, however, the ALJ found Plaintiff could perform
jobs that exist in significant numbers in the national economy
such as a job as a label coder, bottling-line attendant, or
garment sorter.
Tr. 31.
Accordingly, the ALJ found Plaintiff is
not disabled and, therefore, is not entitled to benefits.
Tr. 32.
DISCUSSION
Plaintiff contends the ALJ erred by (1) failing to follow
the remand order from the Appeals Council; (2) rejecting
Plaintiff’s testimony; (3) discounting the medical opinions of
Peter LeBray, Ph.D., David R. Truhn, Psy.D., and Kenneth P.
Butters, M.D.; (4) discrediting the lay-witness testimony of
Janice Frazier, Carol Kilgore, and Mary J. Willis; (5) failing to
consider the combined effects of Plaintiff’s impairments in the
RFC; (6) failing to consult a medical expert concerning
Plaintiff’s remote alleged onset date; and (7) posing an
inadequate hypothetical to the VE.
I.
Compliance with Appeals Council Remand Order
Plaintiff contends the ALJ failed to comply with the Appeals
Council’s remand order because the ALJ failed to take further
action to complete the administrative record.
The Appeals Council remanded the case to the ALJ with orders
to consider Dr. LeBray’s opinion; to evaluate Plaintiff’s mental
10- OPINION AND ORDER
impairments pursuant to 20 C.F.R. §§ 404.1520a, 416.920a; to
offer Plaintiff a new hearing; and to “take any further actions
needed to complete the administrative record.”
Tr. 149-50.
On remand the ALJ extensively discussed and ascribed “full
weight” to Dr. LeBray’s opinion, evaluated Plaintiff’s mental
impairments pursuant to the proper authorities, held a new
hearing in which he inquired about the availability of any
further medical records or upcoming examinations, and received
new medical evidence.
Tr. 22-23, 29-30, 46-50, 714-53.
Accordingly, on this record the Court concludes the ALJ
complied with the Appeals Council’s remand order.
II.
Plaintiff’s Testimony
Plaintiff contends the ALJ failed to cite sufficient reasons
fo discrediting Plaintiff's testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she 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
See also Spelatz v. Astrue, 321 F. App’x 689, 692
(9th Cir. 2009).
The claimant, however, need not produce
objective medical evidence of the actual symptoms or their
severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
11- OPINION AND ORDER
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
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
(9th Cir. 1995)).
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).
A.
Summary of Plaintiff’s Testimony
Plaintiff testified at the August 13, 2009, and November 8,
2011, hearings and submitted Adult Function Reports dated June 8,
2006; October 3, 2006; and April 17, 2007.
1.
August 13, 2009, Hearing Testimony
At the August 13, 2009, hearing Plaintiff testified she
lost her most recent job after suffering a transient ischemic
attack and back injuries.
Tr. 106-08.
As of her alleged onset
date of disability in August 2003, Plaintiff testified her back
and left-leg impairments were her most limiting followed by
seizures, urinary difficulties, and short-term memory loss.
109-11.
Tr.
In addition, Plaintiff testified she has nerve problems
12- OPINION AND ORDER
in her right elbow that will require surgery.
Tr. 112-13.
Plaintiff reported she has three types of seizures.
During the first and mildest type, Plaintiff stated she
experiences “mild tremors,” slurred speech, and confusion
approximately “a couple of times” per week.
Tr. 110.
During the
second type of seizure, which Plaintiff testified occurs
approximately once per week, she will “stare off into the
distance and then crumple to the ground,” after which she will
require help to get to bed.
Tr. 110, 116.
Finally, Plaintiff
reported the third type of seizure occurs approximately once per
month, and they are “violent” episodes during which her “body
tends to move itself” occasionally causing injury.
2.
Tr. 110, 116.
November 18, 2011, Hearing Testimony
At the November 18, 2011, hearing Plaintiff testified
her right hand no longer has sufficient strength and grip to
carry a glass.
Tr. 48.
Plaintiff reported she uses a wheelchair
that a relative purchased at Goodwill to ambulate outside of her
home, and she uses a walker inside of her home.
Tr. 51-52.
As a
result of her seizures and memory problems, Plaintiff testified
she cannot drive.
Tr. 52-53.
Plaintiff testified she has
suffered from long-term depression that progressed to the point
where Plaintiff’s counselor considered having her hospitalized.
Tr. 77-78.
Plaintiff reported her elderly mother takes care of her
13- OPINION AND ORDER
on a daily basis, and she spends most of her time talking to her
mother or watching movies.
Tr. 53-54.
Plaintiff testified she
cannot stand “for more than a couple minutes” without pain that
causes her to sit down.
Tr. 76.
Plaintiff also testified she had her first seizure in
2003 in the waiting room of a doctor’s office, and she lost her
job that year because of seizures at work.
Tr. 57, 61.
Plaintiff associated the onset of her seizures with her 2003
cervical-spine surgery.
Tr. 64.
As to more recent public
seizures, Plaintiff reported suffering “five seizures” at her
dentist’s office in 2007.
Tr. 67.
Plaintiff again reported three types of seizures.
Plaintiff testified the first type of seizure involves “little
ticks” and stuttered speech and occurs weekly.
Tr. 68-70.
During the second type of seizure, which occurs approximately
once per month, Plaintiff reported her head twitches and she
speaks nonsensical phrases.
Tr. 68.
Plaintiff testified she
experiences her third type of seizure approximately once every
two months, and such episodes are the most severe with her body
“going kaboom.”
Tr. 68.
Plaintiff reported recovery from all
three types of episodes takes “a long time,” especially for the
third type.
3.
Tr. 71.
June 8, 2006, Adult Function Report
In her June 8, 2006, Adult Function Report, Plaintiff
14- OPINION AND ORDER
reported she may run errands with a relative or help with chores
around the house on a good day, but on bad days she must stay in
bed as a result of headaches, pain, and seizures.
Tr. 303.
Plaintiff reported she cannot button her clothes, requires help
bathing, and needs help feeding herself and using the restroom
after a seizure.
Tr. 304.
Plaintiff indicated her conditions
have affected her abilities to lift, squat, bend, stand, reach,
walk, sit, kneel, talk, hear, climb stairs, see, remember,
complete tasks, concentrate, understand, follow instructions, and
use her hands.
Tr. 308.
Plaintiff reported she can lift up to
ten pounds and can walk two blocks with pain before requiring
five or ten minutes of rest.
Tr. 308.
Plaintiff also indicated
she can pay attention for 30 minutes on a good day, but only ten
minutes on a bad day, and she does not follow instructions well.
Tr. 308.
4.
October 3, 2006, Adult Function Report
In her October 3, 2006, Adult Function Report,
Plaintiff reported her activities of daily living as follows:
“Go to the bathroom, I have an assisted bath some days, some
evenings I go to our den and lie down to watch TV with my mother.
All other times I’m in bed.”
Tr. 341.
Plaintiff indicated her
conditions have caused sleep deprivation and insomnia, and she
requires help with personal-care activities.
Tr. 342.
Plaintiff
reported she goes outside only to travel to medical appointments
15- OPINION AND ORDER
and on a “seldom” basis will socialize by talking on the
telephone or receiving visitors.
Tr. 345.
Plaintiff also
indicated her conditions affect the same functional abilities as
in reported in the June 8, 2006, Adult Function Report, but her
capacity to walk had diminished to the point that she could only
walk seven feet with a cane to the restroom.
5.
Tr. 346-47.
April 17, 2007, Adult Function Report
In her April 17, 2007, Adult Function Report, Plaintiff
reported in a typical day she listens to music and a recording of
the Bible on a portable compact-disk player and watches
television.
Tr. 367.
Plaintiff reported she cannot shave her
legs and requires help dressing, bathing, caring for her hair due
to her right-arm limitations, feeding herself, and using the
toilet.
Tr. 368.
Plaintiff indicated her conditions affect her
abilities to lift, squat, bend, stand, walk, sit, kneel, climb
stairs, remember, complete tasks, concentrate, understand, follow
instructions, and use her hands.
Tr. 372.
Plaintiff reported
she can only walk from her bedroom to the living room or
bathroom.
B.
Tr. 372.
Analysis
The ALJ rejected Plaintiff’s testimony on the grounds that
Plaintiff’s allegations were unsupported and at times
contradicted by her medical-treatment history, Plaintiff
16- OPINION AND ORDER
demonstrated exaggerated pain behavior and poor effort during
medical examinations, Plaintiff’s course of treatment was
conservative despite allegations of severe limitations, the
record does not support the need for Plaintiff’s assistive
devices, Plaintiff continued to report an organic cause for her
seizures after medical providers explained the seizures were nonphysiological in nature, and Plaintiff failed to follow up on
mental-health counseling.
Tr. 25-30.
After a thorough review, the Court finds the medical record
contains sufficient evidence to support the ALJ’s finding of
inconsistencies between Plaintiff’s allegations and the medical
record.
For example, contrary to Plaintiff’s allegation of
substantial memory problems, on multiple occasions Plaintiff was
able to give a comprehensive medical history or was found to have
an intact memory.
Tr. 446, 572, 580, 631, 646, 717.
In
addition, contrary to Plaintiff’s allegations that she is unable
to use her right hand, the record reflects Kurt Brewster, M.D.,
observed Plaintiff carrying a cane in that hand and relying on it
for ambulation.
Tr. 581.
See also Tr. 452, 454, 471, 479, 545,
551, 584, 662.
The Court also notes there is significant evidence in the
record to support the ALJ’s finding that Plaintiff demonstrated
17- OPINION AND ORDER
exaggerated pain behaviors and exhibited poor effort on
examination.
For example, on August 21, 2006, Mark O. Herring,
M.D., noted “continuous pain behaviors with grunting and sighing,
especially with any position changes.”
Tr. 546.
On August 31,
2006, Peter S. Kosek, M.D., noted “extreme pain behaviors.”
573.
See also, e.g., Tr. 580, 610, 662, 666, 723, 727.
Tr.
The
Court, therefore, concludes on this record that the ALJ’s
reasons, taken together, constitute clear and convincing reasons
for rejecting Plaintiff’s testimony.
Accordingly, the Court concludes the ALJ did not err when he
rejected Plaintiff’s testimony because the ALJ provided legally
sufficient reasons supported by substantial evidence in the
record for doing so.
III. Medical Testimony
Plaintiff next maintains the ALJ improperly weighed the
medical opinions of Drs. LeBray, Truhn, and Butters.2
An ALJ may reject a treating physician’s opinion when it is
inconsistent with the opinions of other treating or examining
2
Due to the lack of clarity in Plaintiff’s Opening Brief,
the Court had difficulty identifying much of the medical
testimony that Plaintiff alleges the ALJ improperly weighed. To
the extent that Plaintiff attempts to assign error to the ALJ’s
assessment of additional medical testimony, the Court declines to
consider such arguments because Plaintiff failed to specifically
and distinctly raise them in her Opening Brief. See Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
2008). See also Boyer v. Comm’r Soc. Sec. Admin., No. 3:12-cv00392-SI, 2013 WL 3333060, at *10 (D. Or. July 1, 2013).
18- OPINION AND ORDER
physicians if the ALJ makes findings setting forth specific,
legitimate reasons for doing so that are supported by substantial
evidence in the record.
Taylor, 659 F.3d at 1232.
When the
medical opinion of a treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
rejecting it.
Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222
(9th Cir. 2010)(quoting Lester, 81 F.3d at 830–31).
The opinion
of a treating physician is “given greater weight than the
opinions of other physicians.”
Kelly v. Astrue, No. 10–36147,
2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen, 80 F.3d at
1285).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
See also Garrison
"The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
at 1233 (quoting Lester, 81 F.3d at 831).
Taylor, 659 F.3d
When a nonexamining
physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the nonexamining physician's
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.
See, e.g., Ryan, 528 F.3d at 1198.
A nonexamining
physician's opinion can constitute substantial evidence if it is
19- OPINION AND ORDER
supported by other evidence in the record.
Morgan v. Comm’r of
Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).
See also
Simpson v. Astrue, No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D.
Or. Apr. 18, 2012).
A.
Dr. Truhn’s Opinion
Dr. Truhn examined Plaintiff on March 21, 2007, and
submitted an opinion as to Plaintiff’s mental impairments.
Tr. 666-72.
After interviewing Plaintiff, Dr. Truhn diagnosed
Plaintiff with a pain disorder associated with both psychological
and medical conditions, a conversion disorder with mixed
presentation, a histrionic personality disorder with dependent
and borderline features, and pseudoseizures.
Tr. 671.
Dr. Truhn
opined Plaintiff was “experiencing numerous physical complaints
that have a psychological basis” and concluded “it is doubtful
that she would respond to insight oriented therapy given the
personality disorder and that pain disorders do not usually
respond to insight oriented therapy.”
Tr. 671.
Accordingly,
Dr. Truhn assigned Plaintiff a Global Assessment of Functioning
20- OPINION AND ORDER
(GAF)3 score of 42 and a prognosis of “guarded to poor.”
Tr. 671-72.
Dr. Truhn noted “[w]ith intensive psychotherapy and
pain clinic, [Plaintiff] may return to her previous level of
functioning.”
Tr. 672.
Dr. LeBray, who reviewed Dr. Truhn’s opinion and the rest of
Plaintiff’s medical record, rejected Dr. Truhn’s opinion on the
ground that it was based “mainly on claimant’s self-report” and
that Plaintiff demonstrated “reluctance to engage in some testing
instruments.”
Tr. 689.
The ALJ adopted Dr. LeBray’s conclusions
as to Dr. Truhn’s opinion.
The record reflects Dr. Truhn’s evaluation of Plaintiff
primarily consisted of a lengthy interview with Plaintiff and
minimal objective testing, and that Plaintiff gave poor effort
during Dr. Truhn’s minimal testing.
Thus, the record reflects
Dr. Truhn’s evaluation of Plaintiff was based primarily on his
lengthy interview with Plaintiff.
3
In light of the basis for Dr.
Although the fifth edition of the Diagnostic and
Statistical Manual of Mental Disorders issued May 27, 2013,
abandoned the GAF scale in favor of standardized assessments for
symptom severity, diagnostic severity, and disability (see
Diagnostic and Statistical Manual of Mental Disorders V (DSM-V)
16 (5th ed. 2013)), at the time of Plaintiff’s assessment and the
ALJ’s opinion the GAF scale was used to report a clinician’s
judgment of the patient’s overall level of functioning on a scale
of 1 to 100 (see Diagnostic and Statistical Manual of Mental
Disorders IV (DSM-IV) 31-34 (4th ed. 2000)). A GAF of 41-50
indicates serious symptoms (suicidal ideation, severe obsessional
rituals frequent shoplifting) or any serious impairment in
social, occupational, or school functioning (e.g., few friends,
unable to keep a job). Diagnostic and Statistical Manual of
Mental Disorders IV (DSM-IV) 31-34 (4th ed. 2000).
21- OPINION AND ORDER
Truhn’s opinion, Dr. LeBray’s credible rejection of Dr. Truhn’s
opinion, and the ALJ’s proper discrediting of Plaintiff’s
testimony as noted above, the ALJ reasonably gave little weight
to Dr. Truhn’s opinion.
Accordingly, the Court concludes the ALJ did not err when he
gave little weight to Dr. Truhn’s opinion because the ALJ
provided legally sufficient reasons for doing so.
B.
Dr. Butters’s Opinion
The record contains a treatment record from Dr. Butters in
which he noted Plaintiff’s pinch strength was seven pounds on the
right and ten pounds on the left.
Tr. 711.
Dr. Butters noted
Plaintiff had demonstrated improvement since surgery on her
elbow, and she now exhibited full finger range of motion.
Tr. 711.
Dr. Butters, however, opined Plaintiff “would be unable
to use her hand in any meaningful employment with repetitive
use.”
Emphasis added.
Tr. 711.
In response to questioning by Plaintiff’s attorney, the VE
testified although different doctors have different definitions
of “repetitive,” the most common interpretation of “repetitive”
as used by Dr. Butters would preclude “continuous” (but not
"frequent") use of Plaintiff's hand.
Tr. 91.
In his evaluation
of Plaintiff’s RFC the ALJ limited Plaintiff to jobs that do not
entail “continuous use of her right arm and hand.”
Tr. 23.
Because the ALJ's assessment of Plaintiff's RFC is
22- OPINION AND ORDER
consistent with the limitation discussed in Dr. Butters’s
opinion, the Court concludes on this record that the ALJ did not
reject Dr. Butters’s opinion.
C.
Dr. LeBray’s Opinion
Dr. LeBray reviewed Plaintiff’s medical records on August 8,
2007, and submitted an opinion concerning Plaintiff’s mental
limitations.
Tr. 687-89.
Dr. LeBray found Plaintiff can
remember simple instructions and locations; can perform simple
tasks and maintain attention for at least two-hour periods; and
should not be required to closely interact with the general
public.
Tr. 689.
In his Psychiatric Review Technique,
Dr. LeBray noted “[t]here is insufficient evidence with which to
rate this claimant from 08/01/03 through/near [date last insured]
of 12/31/04.”
Tr. 685.
The ALJ gave Dr. LeBray’s opinion “full weight” and included
in Plaintiff’s RFC the limitations that Dr. LeBray identified in
his Mental Residual Functional Capacity Assessment.
Tr. 23, 30.
Plaintiff, nonetheless, argues the ALJ improperly ignored Dr.
LeBray’s finding that the evidence was insufficient to make a
determination regarding her mental capacities between the alleged
onset date and the date last insured.
As noted, however, at the hearing on remand the ALJ
extensively reviewed the medical records with Plaintiff to ensure
the completeness of the medical record.
23- OPINION AND ORDER
Moreover, Plaintiff has
not demonstrated any additional evidence exists related to this
period nor identified any evidence that the ALJ should have
obtained.
On this record, therefore, the Court concludes the ALJ
properly incorporated Dr. LeBray’s opinion in Plaintiff’s RFC.
IV.
Lay-Witness Testimony
Plaintiff asserts the ALJ erroneously rejected the lay-
witness testimony of Janice Frazier, Carol Kilgore, and Mary J.
Willis.
When determining whether a claimant is disabled, the ALJ
must consider lay-witness testimony concerning a claimant’s
limitations and ability to work.
Molina, 674 F.3d at 1114.
If
the ALJ wishes to discount the testimony of lay-witnesses, he
“must give reasons that are germane to each witness.” Id.
(quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)).
See also Lester, 81 F.3d at 834 (improperly rejected lay-witness
testimony is credited as a matter of law).
Although the ALJ's reasons for rejecting lay-witness
testimony must be "specific," Stout, 454 F.3d at 1054, the ALJ
need not discuss every witness’s testimony on an individualized
basis.
Molina, 674 F.3d at 1114.
“[I]f the ALJ gives germane
reasons for rejecting testimony by one witness, the ALJ need only
point to those reasons when rejecting similar testimony by a
different witness.”
24- OPINION AND ORDER
Id.
See also Valentine, 674 F.3d at 690.
A.
General Arguments Regarding Lay-Witness Testimony
Defendant makes two general arguments concerning the laywitness testimony.
1.
Law-of-the-Case Doctrine
Defendant asserts Plaintiff may not assign error to the
ALJ’s treatment of the lay-witness testimony under the law-ofthe-case doctrine because the Appeals Council’s narrow remand of
the matter to the ALJ conclusively decided the lay-testimony
issue in the Commissioner’s favor.
This contention is meritless.
Defendant does not cite any authority for the proposition that a
remand from the Appeals Council (as opposed to a reviewing court)
for further consideration of particular issues renders all other
determinations made by the Commissioner unappealable.
To the
contrary, “‘[u]nder the ‘law of the case’ doctrine, a court is
ordinarily precluded from reexamining an issue previously decided
by the same court, or a higher court, in the same case.’”
United
States v. Smith, 389 F.3d 944, 948 (9th Cir. 2004)(quoting
Richardson v. United States, 841 F.2d 993, 996 (9th Cir.
1988))(emphasis added).
154 (9th Cir. 1993).
See also Thomas v. Bible, 983 F.2d 152,
Thus, the law-of-the-case doctrine does not
prevent this Court from reviewing the Commissioner’s rejection of
the lay-witness testimony.
2.
Sufficiency of Plaintiff’s Briefing
Defendant also argues the Court should not consider
25- OPINION AND ORDER
Plaintiff’s argument concerning the lay-witness testimony because
“Plaintiff offers no substantive argument in support of her
contentions.”
Def.’s Resp. (#20) at 17 (citing Carmickle, 533
F.3d at 1161 n.2).
In her Opening Brief Plaintiff summarized the
lay-witness testimony, identified the lay witnesses whose
testimony the ALJ allegedly rejected in error, and cited the
general standard by which a court reviews an ALJ’s rejection of
lay-witness testimony.
Although the Court agrees with Defendant that Plaintiff
does not fully explain her arguments concerning the lay-witness
testimony, the Court, in the exercise of its discretion, will
consider Plaintiff’s arguments concerning the lay-witness
testimony.
B.
Janice Frazier’s Testimony
Janice Frazier, Plaintiff’s mother, submitted two Adult
Function Reports and testified at both hearings.
In the two
Adult Function Reports dated June 8, 2006, and September 27,
2006, Frazier reported Plaintiff watches television and talks
with visitors as part of her daily activities, but Plaintiff
generally stays in bed on bad days.
Tr. 312, 325.
Although in
the June 2006 Report Frazier stated Plaintiff took care of her
personal needs “most days,” Frazier reported in September 2006
that Plaintiff “needs help” with such activities.
Tr. 313, 326.
Frazier also reported seizures substantially limit Plaintiff’s
26- OPINION AND ORDER
activities, and she needs reminders on days after seizures and
is unable to leave the house alone due to those seizures.
Tr. 314-15, 328.
At the August 13, 2009, hearing, Frazier testified she had
observed Plaintiff having many different types of seizures and
stated Plaintiff cannot sit for lengthy periods of time due to
back pain and has difficulty using her hands and arms.
121.
Tr. 119,
At the November 8, 2011, hearing, however, Frazier
testified she did not know whether Plaintiff had seizure activity
during the early period of Plaintiff’s alleged disability, but
Plaintiff had “fallen out of her bed” a “couple times.”
Tr. 82.
Although the ALJ summarized Frazier’s testimony, he did not
indicate the weight that he was affording to Frazier’s testimony
or provide any reasons for rejecting her testimony.
Tr. 24.
On this record, therefore, the Court concludes the ALJ erred
when he failed to identify the weight that he gave to Frazier’s
testimony and when he rejected Frazier’s testimony because the
ALJ did not provide legally sufficient reasons for doing so.
C.
Mary J. Willis’s Testimony
Mary J. Willis, Plaintiff’s aunt, submitted a Third Party
Function Report dated April 17, 2007.
Tr. 358-65.
Willis
reported she sees Plaintiff four times per week and described
Plaintiff’s daily activities as getting up to use the restroom,
listening to compact disks, watching television, and attending
27- OPINION AND ORDER
doctor appointments.
Tr. 358.
Willis stated Plaintiff needs
help with all personal-care activities and cannot leave the house
other than to attend medical appointments because she experiences
seizures.
Tr. 359-60.
Willis indicated Plaintiff’s conditions
have affected her abilities to lift, squat, bend, stand, reach,
walk, sit, kneel, climb stairs, see, remember, complete tasks,
concentrate, understand, follow instructions, and use her hands.
Tr. 362.
Willis reported Plaintiff cannot lift more than five
pounds and can only walk approximately 20 feet.
Tr. 362.
The ALJ noted Willis’s testimony was similar, though not
identical, to that of Plaintiff and Janice Frazier.
The ALJ,
however, did not indicate how much weight the ALJ assigned to
Willis’s testimony nor provide reasons for rejecting Willis’s
reports.
On this record, therefore, the Court concludes the ALJ erred
when he failed to identify the weight he gave to Willis’s
testimony and when he rejected Willis’s testimony because the ALJ
did not provide legally sufficient reasons for doing so.
D.
Carol Kilgore’s Testimony
On September 30, 2006, Carol Kilgore, Plaintiff’s sister,
submitted a Third Party Seizure Questionnaire.
Kilgore reported
she has witnessed Plaintiff having two types of seizures.
Tr. 334-35.
During the first type of seizure Plaintiff stutters
and has difficulty completing thoughts, has memory loss,
28- OPINION AND ORDER
experiences tremors, is unable to hold items in her hands, and is
sometimes unable to walk.
Tr. 334.
Kilgore noted, however,
Plaintiff feels “about the same as before the seizure” after such
an episode.
Tr. 334.
Kilgore reported Plaintiff gets a “strange look in her eyes”
in the second type of seizure, and Plaintiff’s dog will begin
barking before Plaintiff collapses or slumps over in her chair.
Tr. 334-35.
After this type of episode, Kilgore noted Plaintiff
is tired, weak, and sore; does not have any memory; and is in bed
for at least one day.
Tr. 335.
When Plaintiff was living in
Mississippi she lived with Kilgore, but since Plaintiff moved to
Oregon Kilgore has been in contact with Plaintiff by telephone
frequently and Kilgore states Plaintiff’s seizures have worsened.
Tr. 336.
The Court notes the ALJ did not mention Kilgore’s testimony
in his opinion, and, therefore, the record does not reflect the
ALJ even considered Kilgore’s testimony.
The Court concludes on
this record that the ALJ erred when he failed to address
Kilgore’s testimony.
V.
Consideration of Multiple Impairments
Plaintiff contends the ALJ committed his “most serious
error” by failing to “properly consider the combined effect of
Plaintiff’s multiple impairments . . . as to whether the combined
effect should be regarded of sufficient severity . . . to result
29- OPINION AND ORDER
in limitations of disabling severity.”
at 43.
Pl.’s Opening Br. (#14)
This contention is without merit.
The record reflects
the ALJ extensively considered the combined effects of
Plaintiff’s multiple medical impairments in his 14-page opinion
and assessed Plaintiff’s RFC to include functional limitations
based on Plaintiff’s medical condition.
Tr. 19-32.
Accordingly, on this record the Court concludes the ALJ did
not fail to consider the combined effects of Plaintiff’s multiple
medical impairments.
VI.
Failure to Consult a Medical Expert Regarding Plaintiff’s
Remote Alleged Onset Date of Disability
Plaintiff contends the ALJ erred by failing to consult a
medical expert to provide sufficient evidentiary support for
Plaintiff’s remote onset date.
The requirement in SSR 83-20 that the ALJ consult a medical
expert to help determine an onset date of disability when the
evidence is ambiguous, however, is inapplicable to this case
“[b]ecause the ALJ found that [Plaintiff] was not disabled ‘at
any time through the date of [the] decision,’” and, therefore,
“the question of when [she] became disabled did not arise.”
See
Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008)(emphasis in
original).
Accordingly, on this record the Court concludes the ALJ did
not err by not consulting a medical expert to determine
Plaintiff’s onset date of disability.
30- OPINION AND ORDER
VII. Sufficiency of the RFC and Hypothetical Posed to the VE
Plaintiff finally contends the ALJ posed an inadequate
hypothetical to the VE because the ALJ’s evaluation of
Plaintiff’s RFC and the ALJ's hypothetical posed to the VE failed
to adequately account for Dr. Butters’s opinion that Plaintiff
could not engage in employment that requires “repetitive” use of
her right hand.
As noted, however, the ALJ appropriately relied on the VE’s
testimony that a limitation to less-than-constant use of
Plaintiff’s right hand was consistent with the most common
meaning of Dr. Butters’s opinion that Plaintiff could not perform
a job that would require “repetitive” use of her hand.
Accordingly, on this record the Court concludes the ALJ's
assessment of Plaintiff's RFC and the hypothetical posed by the
ALJ to the VE were legally sufficient in this respect.
VIII.
Remand
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.
Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).
issue turns on the utility of further proceedings.
The
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.
31- OPINION AND ORDER
Strauss v. Comm’r, 635
F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)).
The court may not award
benefits punitively and must conduct a “credit-as-true” analysis
to determine whether 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 when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are not
any 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 if such evidence were
credited.
Id.
The reviewing court should decline to credit testimony when
“outstanding issues” remain.
Luna v. Astrue, 623 F.3d 1032, 1035
(9th Cir. 2010).
Although the “credit-as-true” doctrine is not a mandatory
rule in the Ninth Circuit, it leaves the court with the
flexibility to determine whether to enter an award of benefits
upon reversing the Commissioner’s decision.
Connett v. Barnhart,
340 F.3d 871, 876 (9th Cir. 2003)(citing Bunnell v. Sullivan, 947
F.2d 871 (9th Cir. 1991)(en banc)).
When the reviewing court
finds the elements of the “credit-as-true” rule have been
satisfied, however, the court may only remand for further
proceedings if “an evaluation of the record as a whole creates
serious doubt that the claimant is, in fact, disabled.”
32- OPINION AND ORDER
Garrison, 759 F.3d at 1021.
On this record the Court concludes there are outstanding
issues that must be resolved before a determination of disability
can be made.
The Court has concluded the ALJ erred when he
failed to consider properly the lay-witness testimony and when he
failed to resolve conflicts in portions of the lay-witness
testimony.
Moreover, the effect the lay-witness testimony may
have on the ALJ’s assessment of Plaintiff’s RFC or on the
ultimate disability determination is unclear.
Accordingly, remand is necessary for the ALJ to weigh each
lay witness’s testimony and to consider that testimony in the
ALJ’s assessment of Plaintiff’s RFC and his ultimate
determination as to whether Plaintiff is disabled.
CONCLUSION
For these reasons, the Court REVERSES the final decision of
the Commissioner and REMANDS this matter pursuant to sentence
33- OPINION AND ORDER
four of 42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 20th day of November, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
34- OPINION AND ORDER
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