Hammons v. Commissioner Social Security Administration

Filing 24

Opinion and Order: The Commissioner's decision is not supported by substantial evidence. The decision of the Commissioner is Reversed and this matter is Remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and payment of benefits. Signed on 5/13/2016 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JILL HAMMONS,
Plaintiff,
6: l 5-cv-00518-MC
OPINION AND ORDER
V.

CAROLYNW. COLVIN,
Commissioner of Social Security,
Defendant.

MCSHANE, Judge:
Plaintiff Jill Hammons filed this action March 30, 2015, seeking judicial review of the
Commissioner of Social Security's final decision denying her application for disability benefits
under Title II and supplemental security income ("SSI") under Title XVI of the Social Security

Page 1 - OPINION AND ORDER

Act (the "Act"). This court has jurisdiction over plaintiffs action pursuant to 42 U.S.C. § 405(g)
and 1383(c)(3).
Plaintiff filed her applications for benefits in November 2011. The administrative law
judge (ALJ) determined plaintiff is not disabled. Tr. 10-21. 1 The ALJ erred in rejecting the
opinion of Katherine Greene, Psy.D., an examining physician, and in rejecting the opinion of
Heidi Tafjord, P.M.H.N.P., L.M.P., a treating counselor. For the reasons stated below, the
Commissioner's decision is REVERSED and this matter is remanded for payment of benefits.
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 ofSoc. 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 person might accept as adequate to support a conclusion."' Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012), (quoting Sandgathe v. Chafer, 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 Commissioner'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

1

"Tr." refers to the Transcript of Social Security Administrative Record(# 10) provided
by the Commissioner.
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Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014)(quoting Reddick v. Chafer, 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 a claimant satisfies his or her burden
with respect to the first four steps, the burden shifts to the Commissioner for step five. 20
C.F.R.§§ 404.1520, 416.920. 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 plaintiffs " asthma; history of migraine headaches; back pain;
obesity; depression; anxiety; attention deficit hyperactivity disorder; borderline intellectual
functioning" qualified as "severe" impairments under the regulations. Tr. 12.
The ALJ found plaintiff had the residual functional capacity to perform light work, except
she can occasionally climb ropes, ladders, and scaffolds. She needs to avoid concentrated
exposure to dust, fumes, gases, poor ventilation and other noxious odors. She must also avoid
concentrated exposure to heights, moving machinery and other similar hazards. She is limited to
simple, repetitive and routine tasks requiring no more than occasional interaction with the
general public. Tr. 15. A vocational expert testified that a person with the RFC as stated by the
ALJ could work as a price marker, sorter of soft goods, and hand bander of small products. Tr.
20-21. The ALJ determined plaintiff was not disabled under the Social Security Act.

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Plaintiff argues the ALJ erred in weighing certain medical opinions. I agree. Because the
medical evidence is dispositive, the court need not address plaintiffs additional assertions of
error.

Dr. Greene's Opinion
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).
Katherine Greene, Psy.D., a licensed psychologist, examined plaintiff on November 22,
2011. Tr. 535-39. Dr. Greene conducted a clinical interview and administered the Wechsler
Adult Intelligence Scale IV (WAIS-IV), the Repeatable Battery for Neuropsychological Status
(RBANS), and the Wide Range Achievement Test (WRAT-4).
Plaintiffs affect was flat, her mood depressed and she was tearful at times. Tr. 535. She
reported mood swings, dropping into depression two or three times a week, and lasting several
days. Plaintiff reported anxiety, particularly in public. She had a history of significant trauma
and abuse, which came out in nightmares and flashbacks. Tr. 535-36.
Plaintiff had been homeless since June 2011, and was living in her car. Tr. 536. She
reported spending three years in first grade without passing grades in school. She dropped out of
school in 11th grade and later completed her GED with accommodations in reading. Her FullScale IQ was 79, in the borderline range. Tr. 537. Plaintiffs Verbal Comprehension score of 72
was at the third percentile. Her Working Memory score of 71 was at the third percentile.
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Cognitive testing revealed "severe deficits in attention." Tr. 538. Dr. Greene diagnosed Bipolar
II-depressed, PTSD, Attention Deficit Hyperactivity Disorder NOS, and Borderline Intellectual
Functioning, with a GAF of 45. Tr. 538-39.
Dr. Greene completed a Rating of Impairment Severity form in which she indicated
Plaintiff has moderate restrictions of activities of daily living, and marked impairment in social
functioning and in concentration, persistence, and pace. Tr. 529. She wrote that plaintiff
isolates, withdraws, has no social activities outside of her family, and was anxious and fearful in
public. Id. Test results indicated poor attention, with a history of poor school functioning due to
poor attention and concentration. Id. Dr. Greene indicated plaintiff would have four or more
episodes of decompensation and miss four or more days of work per month due to psychological
symptoms. Tr. 529-30.
Dr. Greene completed a Mental Residual Function Capacity report in which she indicated
plaintiff was markedly limited in her ability to maintain attention and concentration for extended
periods, perform activities within a schedule, maintain regular attendance and be punctual within
customary tolerances, sustain an ordinary routine without special supervision, work in
coordination with or proximity to others without being distracted by them, make simple workrelated decisions, and 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 ofrest periods. Tr. 532. She opined plaintiff was markedly limited in her
ability to interact appropriately with the general public. Id.

Ill
I II
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The ALJ gave Dr. Greene's opinion "little weight ... because it was based on a one-time
examination and was done before the claimant began treatment and counseling." Tr. 19. The
ALJ found mental health treatment improved plaintiffs functioning, citing her ability to take care
of her two teen-aged children, perform household chores, drive, grocery shop, and attend
counseling. Id. The Commissioner cites July 2013 counseling notes indicating plaintiff managed
her household "without crisis at the moment," despite living near a chaotic situation. Tr. 854,
858. Additional counseling notes indicate plaintiff was having two to three panic attacks each
day in February 2013. Tr. 609. The housing facility provided a personal care aide to assist
plaintiff with activities of daily living. Tr. 743. In June 2013 plaintiff's counselor noted she was
"delivering information several ways to make sure [plaintift] is understanding the information ..
. . She appears to require some extra attention to ensure she is understanding information." Tr.
882. Plaintiff was "upset, anxious and agitated." Tr. 876. Her counselor wrote plaintiff"has a
habit of obfuscating content. She may need more explanations than most others, or a chance to
reflect back what she heard, or multiple methods of communication." Tr. 884. In July 2013 her
goal was to go outside without fear. Tr. 570.
Dr. Greene administered the only psychological testing in the record. Her opinion is
contradicted only by a non-examining agency physician. The mere fact that Dr. Greene
examined the plaintiff only one time is not grounds to reject the opinion. If such were the case,
there would be no need for examining psychologists to advise the trier of fact. There is
substantial evidence in the record to support Dr. Greene's assessment and it was entitled to more
weight than that of a non psychological expert.
Ill

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Dr. Greene's opinion is entirely consistent with the July 2013 opinion of Heidi Ta:fjord,
P.M.H.N.P. Tr. 658-64. Nurse Ta:fjord completed a form in which she stated she has been
treating plaintiff since May 2012, with nearly monthly visits, providing medication management
for psychiatric symptoms. Tr. 658. Plaintiffs symptoms included depression, hypomania,
anxiety, panic, flashbacks, problems with focus and concentration, and sleep issues. Tr. 659.
Her symptoms are "easily triggered," and would prevent plaintiff from working full-time without
special accommodations or missing more than two days of work per month. Id. Nurse Ta:fjord
completed a Mental Residual Functional Capacity form in which she stated plaintiff would be
markedly limited in the ability to: understand and remember detailed instructions; carry out
detailed instructions; maintain attention and concentration for extended periods; perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances; work in coordination with or proximity to others without being distracted; the ability
to complete a normal workday without interruption from psychologically based symptoms or to
perform at a consistent pace without an unreasonable number and length of rest periods; and the
ability to travel in unfamiliar places or to use public transportation. Tr. 662-64.
The ALJ failed to provide specific and legitimate reasons for giving Dr. Greene's opinion
little weight. In fact, as a specialist in the area critical to the determination of whether plaintiff is
disabled, Dr. Greene's opinion is entitled to greater weight. Beneke v. Barnhart, 379 F.3d 587,
594 n.4 (9th Cir. 2004).
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 (91h Cir.
2000), cert. denied, 53 l U.S. 1038 (2000). The issue turns on the utility of further proceedings.
Page 7 - OPINION AND ORDER

A remand for an award of benefits is appropriate when no useful purpose would be served by
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to support the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 113839 (9th Cir. 201 l)(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 if a
claimant is disabled under the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award
of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for
rejecting such evidence; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited. Id. The "credit-as-true"
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett v. Barnhart, 340 F.3d 871, 876 (citing Bunnell v. Sullivan, 947 F.2d 871 (9th Cir.

2003)(en bane)). The reviewing court should decline to credit testimony when "outstanding
issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
If Dr. Greene's opinion is credited, the ALJ would be required to find Plaintiff disabled.
The Vocational Expert testified that if a person was absent more than twice a month, that would
preclude gainful activity. Tr. 57-58.

Ill
Ill
Ill
Page 8 - OPINION AND ORDER

CONCUSION
The Commissioner's decision is not supported by substantial evidence. The decision of the
Commissioner is REVERSED and this matter is REMANDED to the Commissioner pursuant to
Sentence Four, 42 U.S.C. § 405(g) for the immediate calculation and payment of benefits.
IT IS SO ORDERED.
Dated this___!}__ day of May, 2016.

Michael McShane
United States District Judge

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