Gartzke v. Commissioner Social Security Administration
Filing
21
Opinion and Order: The ALJ erred in rejecting the RFC of Dr. Ryan Scott, and the law witness testimony of Paula Rowe. Credited as true, Dr. Scotts RFC establishes Gartzke is disabled as of March 2, 2011. The Commissioners decision is REVERSED and this matter is remanded for calculation of benefits. Signed on 9/3/2015 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FRANCIA M. GARTZKE,
Plaintiff,
v.
Civ. No. 6:14-cv-00806-MC
OPINION AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Francia M. Gartzke brings this action for judicial review of the Commissioner’s
decision denying her application for supplemental security income and disability insurance
benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Gartzke, now 48 years old, alleges she became disabled on April 1, 20031 due to mental
impairments. After a hearing, the administrative law judge (ALJ) determined Gartzke is not
disabled. TR 28. 2 The ALJ erred in rejecting the opinion of Dr. Ryan Scott, the examining
psychologist; and in rejecting the law witness testimony of Paula Rowe. The Commissioner’s
decision is REVERSED and this matter is remanded for calculation of benefits.
1
Gartzke originally alleged she became disabled on October 1, 1999. At the hearing, Gartzke formally amended the
alleged onset date to April 1, 2003 as she had substantial gainful activity before that date.
2
“TR” refers to the Transcript of Social Security Administrative Record, ECF No. 9, provided by the Commissioner.
1 – OPINION AND ORDER
BACKGROUND
Gartzke was sexually abused as a child. She claims to have too much anxiety to work,
rendering her unable to stay on task more than 30 minutes without taking a break. After 30
minutes, she becomes very impatient with the task and feels like darting from the room and not
returning.
Gartzke had a previous period of disability from September 1990 through January 2001,
which she voluntarily ended in order to return to work. Gartzke then worked two years as a
grocery store cashier. Gartzke explains she has anger management issues which cause her to be
impatient and affect her mood. She fears people will fire her from a job or treat her badly. These
fears led Gartzke to quit her job as a cashier in 2003. Gartzke also has work experience as a
caregiver, and a list of odd jobs she performed for very short periods of time, such as raking
leaves, walking dogs, and baking pies.
She is a high school graduate and attended college for two years before dropping out in
2008 because she could not pass a required math course. About five times a month, her anxiety
caused her to leave school before the end of the day.
She uses public transportation but occasionally becomes disoriented upon exiting the bus.
Gartzke generally does not like to be around people. When she sees her boyfriend, they go to one
of their homes rather than to a public place. Gartzke suffers from flashbacks on a daily basis
which take her anywhere from a few minutes to half an hour to recover from. She has terrifying
nightmares and claims to be hypervigilant. Gartzke does not get along well with authority figures
such as landlords and supervisors.
2 – OPINION AND ORDER
Gartzke lives alone in an apartment with her cat. She admits to hygiene problems caused
by a failure to bathe or wash her clothes. She often has breakfast at a food kitchen run by a
church, and then takes a bus to the library where she spends about two hours a day. Gartzke does
her own shopping about three times a month, taking as long as two hours per trip. She watches
television and browses the internet nearly every day. Gartzke also has contact nearly every day
with Paula Rowe, her friend of twenty years.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
DISCUSSION
The Social Security Administration utilizes a five step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden
3 – OPINION AND ORDER
with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R.
§ 404.1520. At step five, the Commissioner’s burden is to demonstrate that the claimant is
capable of making an adjustment to other work after considering the claimant’s residual
functional capacity (RFC), age, education, and work experience. Id.
At step two, the ALJ found Gartzke had severe impairments of mild degenerative disc
disease, major depressive disorder, and post traumatic stress disorder (“PTSD”). TR 19. The ALJ
found Gartzke had the RFC to peform medium work with the following limitations: she can
understand, remember, and carry out simple, repetitive tasks on a constant basis; she can perform
more complex tasks occasionally on an intermittent basis; and she can engage in no more than
occasional, brief interactions with the public and coworkers. TR 21. A vocational expert testified
that a person with the RFC as stated by the ALJ could work as a cleaner/housekeeper, handpackager, and laundry sorter. Therefore, the ALJ determined plaintiff was not disabled under the
Social Security Act. TR 28.
Gartzke argues the ALJ erred in rejecting the opinion of Dr. Scott, her examining
psychologist, in finding Gartzke not credible, and in rejecting lay witness testimony. With
respect to Dr. Scott’s opinion and the lay witness testimony, I agree.
The record demonstrates Gartzke suffers from significant mental impairments. While
Gartzke’s physical impairments do not prevent her from working, the record points to the
conclusion that as of her March 2, 2011 appointment with Dr. Scott, Gartzke’s mental
impairments prevented her from sustaining full-time employment.
The ALJ erred in elevating the opinions of the reviewing pyschologists above the opinion
of the examining psychologist. Essentially, the reviewing psychologists attempted to interpret
Dr. Scott’s own notes and findings by formulating a mental RFC for Gartzke based on the
4 – OPINION AND ORDER
information available at that time. Several months later, Dr. Scott formulated a mental RFC for
Gartzke. Dr. Scott’s RFC, based on his own notes, findings, and recollections from his March
2011 examination of Gartzke, was more restrictive than the RFCs of the reviewing
psychologists. As discussed below, the ALJ failed to provide specific and legitimate reasons for
rejecting Dr. Scott’s RFC.
While the ALJ pointed to clear and convincing reasons, supported by the record, in
finding Gartzke not fully credible, he erred in rejecting the law witness testimony of Ms. Rowe.
This error, however, was harmless.
Crediting Dr. Scott’s opinion as true, the record demonstrates that as of March 2, 2011,
Gartzke was indeed disabled under the Act.
Dr. Scott’s Opinion
On March 2, 2011, Dr. Ryan Scott, a licensed psychologist, conducted a
psychodiagnostic evaluation of Gartzke. TR 389. Dr. Scott diagnosed Gartzke with major
depressive disorder, recurrent, moderate, and chronic PTSD. TR 393. Dr. Scott noted Gartzke
appeared “to have symptoms consistent with posttraumatic stress disorder related to sexual abuse
as a child.” TR 392. During the evaluation, Dr. Scott was able to evaluate Gartzke’s claims that
she experienced a depressed mood most of the day nearly every day for at least the past decade
TR 392, as well as her claims of substantial issues with trusting others. TR 389-90. Dr. Scott
listened to Gartzke’s reports of “terrifying nightmares of cannibalism and sexual contact,” TR
389, and her estimate of sleeping only one to three hours per night, TR 391.
The purpose of Dr. Scott’s evaluation was to determine whether Gartzke suffered from
PTSD and memory loss. TR 389. Despite clearly finding Gartzke credible on her claims of
5 – OPINION AND ORDER
PTSD, Dr. Scott noted Gartzke performed adequately on the memory tests and mental status
testing. TR 391-92. Dr. Scott did not include any specific limitations in his 2011 evaluation.
In January 2013, Gartzke’s attorney sent Dr. Scott his 2011 evaluation along with a
Mental Residual Functional Capacity Report form to fill out. TR 655-59. Dr. Scott concluded
Gartzke was “markedly limited” in several ways: maintaining attention and concentration for
extended two-hour periods; working with or around others without being distracted; accepting
and responding to instructions; and, perhaps most significant, “The ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods.” TR
657-58. The form defined “markedly limited” as “A limitation which precludes the ability to
perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a
week, or an equivalent work schedule.” TR 656. Dr. Scott directed the reader to his March 2,
2011 evaluation of Gartzke. TR 659.
The limitations in Dr. Scott’s January 2013 RFC are entirely consistent with Dr. Scott’s
earlier notes and findings that Gartzke:
appeared to perseverate over the questions that were asked of her. At times she
had to be redirected to focus on the current question without offering a lengthy
explanation that was only tangentially related to the question that was asked of
her. She appeared to be very nervous about her performance on the mental status
testing and seemed to process information somewhat slower than [the] average
claimant.
****
Ms. Gartzke does appear to have symptoms consistent with posttraumatic stress
disorder related to sexual abuse as a child. She reported that she regularly has
nightmares and flashbacks. She also reported significant hypervigilance. It
appears that this has caused problems in the past at work where she believes
others have negative intentions toward her, perhaps without tangible evidence.
She also indicated that in her relationship with her boyfriend she tends to be much
6 – OPINION AND ORDER
more standoffish and reported impaired ability to relate to him in a trusting
manner.
Ms. Gartzke also appears to meet the criteria major depressive disorder, recurrent,
moderate. She reported experiencing depressed mood most of the day nearly
every day for at least the last decade. She also reported sleeping difficulties, loss
of energy, fatigue, difficulty concentrating and lack of motivation. . . . This
writer’s impression of Ms. Gartzke is that she did seem to process information
more slowly and was more deliberative than the average claimant.
TR 391-92.
Dr. Scott’s RFC limitations were contradicted only by the opinions of the state reviewing
doctors. 3 The reviewing psychologists concluded Gartzke had only moderate limitations and
could consistently maintain concentration, persistence, and pace for simple tasks within normal
two hour work periods. TR 136-40. As noted, the reviewing psychologists had Dr. Scott’s notes
and findings, but did not have the benefit of reviewing the RFC Dr. Scott assigned Gartzke.
Thus, the ALJ had to resolve the conflicting medical opinions. Regarding Dr. Scott’s opinion, the
ALJ concluded:
With respect to Dr. Scott’s MRFC forms, the undersigned notes the initial form
was completed approximately 18 months after the one-time evaluation. The
undersigned questions how accurately Dr. Scott remembered the one hour he
spent with the claimant after so much time had passed, particularly when
comparing the State agency opinion that resulted from a review immediately
following the evaluation to the these MRFC forms. Dr. Scott did not provide any
specific rationale for his MRFC findings, rather he directed the reader back to his
evaluation; however, the findings on his evaluation did not seem supportive of the
degree of limitation in his MRFC form. Dr. Scott had very limited access to the
medical evidence of record. Moreover, a subsequent neuropsychological
evaluation resulted in a finding that there was no underlying cognitive disorder,
which clearly would have affected Dr. Scott’s opinion. The medical evidence of
record as a whole does not support that the claimant is incapable of sustaining
simple work.
TR 26. None of the ALJ’s reasons for rejecting Dr. Scott’s opinion are legitimate.
3
Dr. Scott and the reviewing psychologists were the only acceptable medical sources to formulate mental RFCs for
Gartzke.
7 – OPINION AND ORDER
Where there exists conflicting medical evidence, the ALJ is charged with determining
credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).
“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ
may only reject it by providing specific and legitimate reasons that are supported by substantial
evidence. . . .” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Generally,
a treating doctor’s opinion is entitled to more weight than an examining doctor’s opinion, which
in turn is entitled to more weight than a reviewing doctor’s opinion. Garrison v. Colvin, 759 F.3d
995, 1012 (9th Cir. 2014).
First, the ALJ questioned Dr. Scott’s memory of his evaluation of Gartzke, which
occurred more than 18 months before Dr. Scott formulated specific limitations. In other
circumstances, this could be a legitimate reason for discounting an examining doctor’s opinion.
But in this instance, Gartke’s attorney sent Dr. Scott his 2011 evaluation of Gartzke along with
the mental RFC forms. Despite expressly acknowledging that Dr. Scott utilized his own
evaluation in filling out the mental RFC forms, TR 24, the ALJ then “question[ed] how
accurately Dr. Scott remembered the one hour he spent with the claimant after so much time had
passed,” TR 26. For some reason, the ALJ concluded that because Dr. Scott based his RFC−at
least in the ALJ’s opinion−solely on a review of his earlier examination notes and findings, this
was a legitimate reason to assign greater weight to the opinions of the reviewing psychologists.
The reviewing psychologists, however, never examined Gartzke, certainly did not remember her,
and in fact based their opinions largely on their own interpretations of Dr. Scott’s own 2011
notes and findings. Additionally, rather than assume Dr. Scott refreshed his memory with the
supplied evaluation, the ALJ infers Dr. Scott merely grabbed his opinions out of thin air. While
this assumption may hold some water if Dr. Scott’s limitations differed greatly from his earlier
8 – OPINION AND ORDER
evaluation, Dr. Scott’s mental RFC limitations in fact mirrored his notes and findings from his
2011 examination of Gartzke.
As described above, Dr. Scott’s March 2011 notes and findings support his January 2013
RFC limitations. Further confirming that Dr. Scott in fact referred to his own evaluation of
Gartzke in filling out the mental RFC form, Dr. Scott concluded Gartzke was not significantly
limited in understanding and memory, even as to “detailed instructions.” TR 657. Had Dr. Scott
not actually refreshed his memory from his 2011 evaluation, one would not expect his memoryrelated RFC to align so precisely with his earlier findings that Gartzke performed adequately on
the memory tests. In other words, Dr. Scott’s opinion appears to be a neutral one. He certainly
was not a mere advocate supporting Gartzke’s claim or parroting her complaints.
While the reviewing psychologists had a bit more evidence (in the form of rather limited
notes with therapists) to digest than Dr. Scott, they did not have the opinion of Dr. Thomas
Boyd, another examining doctor. Dr. Thomas Boyd conducted a neuropychological consultation
of Gartzke on December 29, 2011, after the reviewing psychologists formed their mental RFCs.
TR 581. Dr. Boyd observed Gartzke had a “mildly disorganized quality of speech, with
occasional word finding hesitancy. Most notably, at times her thought process seemed slightly
disjointed, with a childlike quality and some self-contradiction, as in her description of her
relationship with her partner’s grandchildren.” 4 TR 583.
Gartzke scored largely within the mean, or slightly below it, in the testing administered
by Dr. Boyd. TR 584-86. Dr. Boyd noted that throughout much of the testing, and especially in
4
During her interview with Dr. Boyd, Gartzke first stated her partner’s grandchildren “are like my kids,” before
stating that the couple does not often see the grandchildren and that they were not that close. TR 583.
9 – OPINION AND ORDER
the problem solving portions, Gartzke exhibited “much indecision and vacillation.” TR 585. Dr.
Boyd commented on Gartzke’s performance and self-reporting:
Areas of particular concern include marked anxiety and tension, especially around
personal relationships, consistent with self-report in interview. Anxiety is at such
a level that the client may employ maladaptive patterns in attempting to ward off
anxiety, such as phobic behavior, obsession-compulsion, and an unusual degree of
concern around physical functioning and health matters. Depressive symptoms are
also endorsed, and a number of findings suggest that a past traumatic experience
continues to cause distress and anxiety. There are occasional odd responses and
concerns around unusual beliefs (e.g., special talents), possible difficulty in
interpreting social cues, a tendency toward volatile relationships, and a brittle self
esteem.
TR 585. 5
Dr. Boyd concluded “the single greatest likelihood is that Ms. Gartzke’s symptoms are an
expression of very significant psychological influences. These likely include the turmoil, tension,
and anxiety related not only to significant ongoing psychosocial stressors, but also to unresolved
childhood sexual trauma dating to abuse within her home over a period of several years.” TR
586. Dr. Boyd diagnosed PTSD and panic disorder. Dr. Boyd assigned Gartzke a Global
Assessment of Functioning (“GAF”) score of 57, indicating moderate symptoms and/or moderate
difficulty in social functioning. TR 586. 6
The ALJ concluded that had Dr. Scott known that subsequent neurological testing
showed Gartzke did not suffer from an underlying cognitive disorder, he would have formulated
a less restrictive RFC. TR 26. Dr. Boyd, however, clearly thought Gartzke suffered from “very
significant psychological influences.” TR 586. Dr. Boyd formed his opinion despite noting
5
Dr. Boyd and Dr. Scott were not the only ones to comment on Gartzke’s “odd” responses to questions. During a
December 23, 2011 assessment, a social worker noted that Gartzke “had slightly erratic skipping to different
subjects, but appeared normal and engaged in the interview process.” TR 507. In September 2012, another
therapist noted Gartzke’s blunted affect and tangential speech. TR 561.
6
Social Worker John Meyer, who treated Gartzke for several months, opined in December 2011 that Gartzke had a
GAF of 47, indicating serious symptoms and/or serious impairments in social or occupational functioning. TR 508.
In September 2012, another social worker assigned Gartzke a GAF of 53. TR 565.
10 – OPINION AND ORDER
Gartzke’s “roughly average background cognitive abilities[.]” TR 586. Therefore, this reason
relied on by the ALJ to reject Dr. Scott’s RFC, like the other reasons, fails.
Everyone agrees Gartzke suffers from PTSD and major depressive disorder. Other than
Dr. Scott and the reviewing psychologists, no other mental health expert offered an opinion as to
Gartzke’s specific mental limitations. There is a reason the regulations require that, all things
being equal, examining doctors are entitled to more weight than reviewing doctors. This is
especially true in cases turning solely on a claimant’s mental impairments. Here, the reviewing
psychologists based their RFCs largely on their interpretations of Dr. Scott’s own evaluation
notes and findings. But Dr. Scott formulated his own RFC, which happened to be more
restrictive. And of those who formulated a mental RFC for Gartzke, Dr. Scott was the only one
to sit down and look Gartzke in the eye during an in-person examination. Admittedly, this
process if not perfect. But Dr. Scott’s opinion as to Gartzke’s mental limitations is the best
evidence available. And here, the ALJ failed to provide specific and legitimate reasons for
rejecting it.
In the Ninth Circuit:
Remand for further administrative proceedings is appropriate if enhancement of
the record would be useful. Conversely, where the record has been developed
fully and further administrative proceedings would serve no useful purpose, the
district court should remand for an immediate award of benefits. More
specifically, the district court should credit evidence that was rejected during the
administrative process and remand for an immediate award of benefits if (1) the
ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2)
there are no outstanding issues that must be resolved before a determination of
disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited.
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014).
11 – OPINION AND ORDER
The vocational expert testified that someone with the limitations noted in Dr. Scott’s RFC
would be unable to maintain full-time employment. TR 78, 80-81. The record, somewhat sparse
as it is, has been fully developed. Other than Gartzke’s own allegations, there is little evidence
that her mental limitations advanced to the stage of preventing her from maintaining full-time
employment before her March 2011 examination by Dr. Scott. She worked two full years after
the date she originally claimed to be fully disabled. Just before her date last insured, Gartzke was
a student for two years, coming within one class of obtaining an associate degree. And the few
notes from therapy sessions do little to support Gartzke’s claim of disability. In fact, absent Dr.
Scott’s 2013 mental RFC limitations, the reviewing psychologists’ opinions are fully supported
by the limited evidence in the record. But Dr. Scott formulated his own opinion as to Gartzke’s
limitations. He opined that as of March 2, 2011, Gartzke’s mental limitations prevented her from
maintaining full-time employment and that her condition would likely last longer than 12
months. TR 659.
Especially when dealing with mental impairments, the disability system is far from
perfect. It can be difficult to establish a precise onset date. But Dr. Scott’s opinion, which is the
best opinion we have, indicates that Gartzke became disabled on March 2, 2011. Remand for
calculation of benefits is therefore appropriate in this instance. Further proceedings would simply
extend the time until Gartzke receives the supplemental security income she is entitled to.
Remanding for further proceedings here, when Gartzke cannot demonstrate a disability onset
date before September 30, 2008, her date last insured, would serve no useful purpose. This
matter is therefore remanded for calculation of benefits.
12 – OPINION AND ORDER
The ALJ’s Adverse Credibility Determination
In making an adverse credibility determination regarding Gartzke’s subjective reporting
on the severity of her symptoms, the ALJ was required to provide “specific, clear and convincing
reasons” for rejecting Gartzke’s testimony. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 2009)
(quoting Smolen v. Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)). The ALJ provided several
reasons for finding Gartzke not credible. Some were valid. Some were not.
For instance, the ALJ found Gartzke not credible because she asked her Laurel Hill
counselors for assistance in seeking a job with requirements exceeding Gartzke’s claimed
limitations. TR 25. This is not a valid reason in finding Gartzke not credible. That Gartzke
perhaps dreamed of reentering the workplace should be applauded, not used against her.
Additionally, the regulations recognize claimants may attempt to engage in trial work periods
without torpedoing their claims. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038-39 (9th Cir.
2002) (noting that the administration “permits recipients of disability benefits to work on a trial
basis without the trial work period adversely affecting their disability status.”)). Here, Gartzke
merely spoke with her counselors about finding work. She never even got to the trial work period
stage.
The ALJ also found Gartzke “informed Dr. Scott that she had never been fired for
reasons related to her mental health problems, but testified to the opposite.” TR 25. The ALJ
appears to base this finding on Gartzke’s statement at the hearing that “I’m always paranoid that
somebody’s going to fire me or treat me bad. I was slapped by one of my bosses in the past so –
and I was, I was let go for reasons that weren’t right[.]” TR 66. This statement is not inconsistent
with Gartzke’s statement that she had never been fired for mental health related issues.
13 – OPINION AND ORDER
Other reasons provided by the ALJ are in fact legitimate and constitute clear and
convincing evidence in finding Gartzke not fully credible as to the extent of her limitations.
Especially in cases involving mental impairments, ALJs and courts must look to a claimant’s
own statements as to both their limitations, and the evolution of those limitations. Here, Gartzke
clearly suffers from PTSD. The main issue is whether her symptoms prevent her from
maintaining full-time employment. Clearly, at least in 2001 and 2002, Gartzke’s symptoms did
not prevent her from performing substantial gainful activities. During those years, Gartzke
maintained employment as a grocery cashier. Despite being able to hold down this job, Gartzke
originally alleged she became unable to work due to her disability as of October 1, 1999. TR
218. When a claimant alleges an onset date of 1999, yet maintains substantial gainful activities
for over two years after that date, the ALJ may point to that discrepancy in finding a claimant not
fully credible as to the extent of her limitations. Here, the ALJ did just that, noting that Gartzke
continued to work after the alleged onset date. 7
The ALJ also noted Gartzke often made allegations about her medical history and
limitations that lacked support. TR 25. This is certainly true. On numerous occasions, Gartzke
claimed to have suffered two heart attacks in 2010. However, an EKG showed normal results.
TR 409. 8 Gartzke complained of blurry vision but had 20/20 vision. TR 405. Gartzke claimed to
have gone 47 days without sleep. TR 409. Gartzke also claimed to have suffered a months-long
concussion after hitting her head on a paper towel dispenser. Gartzke had trouble finding words
and “even had trouble remembering her name.” TR 419. Her primary care physician noted
7
That Gartzke’s attorney amended the onset date (to a date after she quit her cashier job) at the hearing does not
alter this conclusion. The ALJ, and this court, must rely on Gartzke’s own allegations in evaluating her claim. That
she claimed becoming disabled in 1999 despite working for two full years after that date is a clear and convincing
reason for finding Gartzke not credible as to her limitations.
8
The EKG did show poor R wave progression, TR 409, but an echocardiogram was normal, TR 421.
14 – OPINION AND ORDER
Gartzke’s “system presentation seems forced and overdone,” with symptoms more appropriate
with one suffering severe head trauma. TR 420. The ALJ’s conclusion that, at least as regards to
her self-reporting of her symptoms and limitations, Gartzke was not fully credible is supported
by substantial evidence in the record. 9
The ALJ also noted that despite claiming some difficulties in using public transportation,
the record demonstrates Gartzke generally took the bus to the library every day without any
problems. Although not a clear and convincing reason on its own, this reason is supported by the
record.
An ALJ may look to an unexplained failure to seek or follow a prescribed course of
treatment in determining a claimant’s credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989). Here, the ALJ noted that despite alleging debilitating symptoms from depression and
PTSD, Gartzke does not take any medications for her complaints. Gartzke also went several
years before seeking any counseling or treatment. Especially when dealing with claims of mental
illness, these reasons on their own are likely insufficient to support an adverse credibility
determination. But they are supported by the record, and they lend support to the ALJ’s adverse
credibility determination.
Lay Testimony
Gartzke contends the ALJ erred in failing to credit the lay testimony from her friend of
23 years, Paula Rowe. While I generally agree, any error is harmless.
9
Although the ALJ properly found Gartzke not fully credible, her reports of a “long term concussion” and “pain
when brushing her hair” surely factored into Dr. Scott’s evaluation. TR 389-393. In other words, although Gartzke’s
self-reports may in fact be symptoms of her mental impairments (and therefore support her claim of disability), it
does not demonstrate that she is credible regarding her self-reporting of limitations. In this case, the examining
phsychologists, trained in evaluating and diagnosing claims of mental illness during in-person evaluations, are in
fact the most reliable reporters on Gartzke’s symptoms and limitations. This is especially true in a case like this,
where Gartzke claimed to “like telling my cat to do his homework because I wanted a baby but don’t have one so I
turned my cat into a son I never had[.]” TR 390.
15 – OPINION AND ORDER
Rowe completed a Third-Party Function Report on December 26, 2010 in which she
explains she has contact with Gartzke nearly every day. This daily contact included going for
coffee together, cooking together at Rowe’s house, or talking on the phone. Rowe states Gartzke
has trouble taking direction, becomes overwhelmed and confused in the middle of tasks, suffers
from poor memory and flashbacks, has hygiene problems, and becomes disorganized when
trying to cook something other than a frozen meal. Rowe hired Gartzke to clean out her car for
$20 but Gartzke was unable to finish the job. Gartzke keeps her house very clean and does not
like clutter, so her house has minimal furnishings. She often panics and throws out things she
buys for her home. According to Rowe, Gartzke is fearful people will stalk her, believes people
pick on her and are out to get her, is consumed with conspiracy theories and tracking devices,
and has trust issues. On the positive side, Rowe reports Gartzke takes the bus to a café and then
to the library every day, where she stays for two hours. She spends a lot of time visiting her
boyfriend, but is extremely jealous of him, and talks a lot on the phone with Rowe.
Lay testimony about a claimant’s symptoms is competent evidence which the ALJ must
take into account unless he gives reasons for the rejection that are germane to each witness.
Molina, 674 at 1114. The germane reasons must be specific. Bruce v. Astrue, 557 F.3d 1113,
1115 (9th Cir. 2009). A legitimate reason to discount lay testimony is that it conflicts with
medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). But the ALJ
cannot discredit lay testimony because it is not supported by, or corroborated by, medical
evidence in the record. Bruce, 557 F.3d at 1116.
The ALJ expressly gave weight to Rowe’s concern about Gartzke becoming easily
overwhelmed; he addressed this concern by limiting Rowe to simple, repetitive tasks. But the
ALJ gave little weight to the rest of Rowe’s statement for several reasons. First, the ALJ noted
16 – OPINION AND ORDER
the record contained nothing about an obsession with conspiracy theories. Gartzke correctly
points out several references in the medical records to her reports of extreme suspiciousness,
stalkers, and people plotting to get her fired at work. The term “conspiracy theory” is not a
precise one and could be loosely interpreted to include Rowe’s statements to her medical
providers. Thus, this reason is not supported by the record.
Next, the ALJ reasoned that Rowe claimed Gartzke was disorganized but had a very
clean home at all times. He considered these statements inconsistent with each other. Gartzke
again correctly points out that Rowe limited the disorganization statement to the context of
cooking. Lack of organized cooking skills is not inconsistent with keeping an obsessively clean
house. The ALJ’s reason is not persuasive.
Finally, the ALJ was concerned Rowe likely parroted Gartzke’s allegations because she
only meets her for coffee in the mornings and may not have an adequate picture of Gartzke’s
day-to-day functioning. Much of Rowe’s statement discusses her observations of Gartzke’s
behavior, including her hygiene problems, her cooking disorganization, her housekeeping, and
her inability to complete simple jobs for Rowe. Moreover, many lay witnesses have far less
contact than the nearly daily contact Rowe had with Gartzke. This is not a germane reason to
discount Rowe’s testimony.
Although the ALJ erred in largely rejecting Rowe’s statements, any error is harmless.
Gartzke’s statements to Dr. Scott generally mirrored Rowe’s statements. Rowe wrote her
statement only one month before Dr. Scott’s examination of Gartzke. And as noted, Dr. Scott
incorporated Gartzke’s statements into the RFC he formulated, and that RFC is now credited as
true. Additionally, Rowe did not include specific limitations not included in Dr. Scott’s RFC.
17 – OPINION AND ORDER
Rather, Rowe’s statements generally paint a picture of a person suffering from mental
impairments. And on that point, all of the evidence in this record agrees.
CONCLUSION
The ALJ erred in rejecting the RFC of Dr. Ryan Scott, and the law witness testimony of
Paula Rowe. Credited as true, Dr. Scott’s RFC establishes Gartzke is disabled as of March 2,
2011. The Commissioner’s decision is REVERSED and this matter is remanded for calculation
of benefits.
IT IS SO ORDERED.
DATED this 3rd day of September, 2015.
Michael J. McShane
Michael McShane
United States District Judge
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