Anderson v. Commissioner Social Security Administration
Filing
17
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to Sentence Four, 42 U.S.C.§ 405(g), for the immediate calculation and payment of benefits to Plaintiff. Signed on 07/14/2016 by Judge Anna J. Brown. See attached 28 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEFFREY L. ANDERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
RICHARD F. MCGINTY
McGinty & Belcher, Attorneys
P.O. Box 12806
Salem, OR 97301
(503) 371-9636
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1011
1 - OPINION AND ORDER
6:15-CV-01319-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JUSTIN L. MARTIN
Special Assistant United States Attorney
Social Security Administration
791 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
(206) 615-3735
Attorneys for Defendant
BROWN, Judge.
Plaintiff Jeffrey L. Anderson 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) and Supplemental Security
Income (SSI) under Titles II and XVI of the Social Security Act.
This Court has jurisdiction to review the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court reverses the
decision of the Commissioner and remands this matter pursuant to
Sentence Four, 42 U.S.C. § 405(g), for the immediate calculation
and payment of benefits to Plaintiff.
ADMINISTRATIVE HISTORY
Plaintiff protectively filed his applications on August 8,
2011, and alleged a disability onset date of June 29, 2009.
2 - OPINION AND ORDER
Tr. 198-201, 229, 240.1
The applications were denied initially
and on reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on August 16, 2013.
represented himself.
Tr. 39-92.
At the hearing Plaintiff
Plaintiff and a vocational expert (VE)
testified.
The ALJ issued a decision on September 11, 2013, in which he
found Plaintiff is not disabled.
Tr. 14-38.
That decision
became the final decision of the Commissioner on May 14, 2015,
when the Appeals Council denied Plaintiff's request for review.
Tr. 1-4.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On July 16, 2015, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born in August 1961 and was 49 years old on
his alleged onset date.
He completed four or more years of
college and has a degree as a registered nurse.
Tr. 241, 968.
Plaintiff has a radiology limited license and certifications as a
nursing assistant, medical assistant, and paramedic.
968.
Tr. 241,
Plaintiff has past relevant work experience as a registered
nurse at an adult corrections facility from 1996 to 2009.
Tr. 232.
1
Citations to the official transcript of record filed by
the Commissioner on November 23, 2015, are referred to as "Tr."
3 - OPINION AND ORDER
Plaintiff alleges disability due to “bipolar, adjustment
disorder, PTSD, chronic knee pain, left meralgia prasthica, left
ulnar neuropathy, left pre-op trigger finger, chronic left
shoulder impingement, L4-5 disc compression, high bp.”
Tr. 240.
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 his
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
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.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
4 - OPINION AND ORDER
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).
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
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 v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
5 - OPINION AND ORDER
2011).
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.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R. §§
See also Keyser, 648 F.3d
at 724.
At Step Three 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.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
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.
6 - OPINION AND ORDER
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)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he 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 (SGA) since his June 29, 2009,
alleged onset date.
Tr. 19.
7 - OPINION AND ORDER
The ALJ found Plaintiff met the
insured status requirements through December 31, 2014.
At Step Two the ALJ found Plaintiff has severe impairments
including left ulnar neuropathy, status post bilateral meniscus
tear, status post shoulder arthroscopy, left pinky trigger
finger, diabetes mellitus, degenerative disc disease, obstructive
sleep apnea, bipolar disorder, post-traumatic stress disorder,
and personality disorder.
Tr. 19.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal any listed impairment.
Tr. 20.
The ALJ found
Plaintiff has the RFC for light work, except he can occasionally
climb, kneel, crouch, and crawl.
The claimant can perform only
occasional bilateral overhead lifting and simple, routine tasks
consistent with a specific vocational preparation level of one or
two.
The claimant does not require over-the-shoulder
supervision.
He can have occasional contact with co-workers but
not any contact with the public.
Tr. 22.
At Step Four the ALJ found Plaintiff is unable to perform
any past relevant work.
Tr. 31.
At Step Five the ALJ found Plaintiff is able to perform the
occupations of pricer, car-lot attendant, and office cleaner.
Tr. 32.
DISCUSSION
Plaintiff contends the ALJ erred by (1) failing to act
8 - OPINION AND ORDER
fairly at the administrative hearing, (2) improperly weighing the
medical evidence, and (3) failing to formulate an appropriate RFC
assessment.
I.
The ALJ did not act unfairly at the administrative hearing.
Plaintiff contends the ALJ erred by failing to develop the
record fully and by failing to ensure Plaintiff’s interests were
fairly protected.
He argues the ALJ should have provided him
with the opportunity to qualify a friend as his representative at
the hearing and should have advised him that the necessary form
could be obtained in the adjacent office.
Plaintiff also
contends the ALJ erred by failing to advise him that his friend
could testify on his behalf.
Plaintiff fired his lawyer, Todd Hammond, before the August
2013 hearing.
Tr. 41.
hearing before the ALJ.
He was not represented by counsel at the
Plaintiff brought a friend to the
hearing and sought to have the friend represent him “because he
is the only person I can trust.”
Tr. 41.
Plaintiff thought he
had completed the paperwork necessary to appoint his friend to be
his representative, but he had not.
Tr. 42.
The ALJ told
Plaintiff that “anybody can be a rep if they go through the
process, but they can’t just pop in here.”
Tr. 42.
The
discussion between Plaintiff and the ALJ continued as follows:
CLMT: I thought I was turning in his name . . . .
ALJ: I don’t have it.
9 - OPINION AND ORDER
CLMT: Well, that’s what getting represented does for
you when you actually have one. Okay, that’s why Mr.
Hammond and I no longer work with each other. I
haven’t had any contact with him in a year, over a
year, a year-and-a-half.
ALJ: Okay, I - - it’s, it’s entirely your decision to
fire him, hire him.
CLMT: Let’s just go ahead and get this over with, sir.
ALJ: Okay.
CLMT: Thank you, I mean, Your Honor.
kind of nervous.
I’m sorry.
I’m
ALJ: Okay. That’s okay. So, if you want to go hire
somebody else, I’m more than willing to let you do it,
but you can’t just pop up without going through the
process, so what would you rather do? If you want to
proceed, I’m willing . . . .
CLMT: I turned in his name on my application form for
my hearing that he was going to be here. At least I
thought I did. Maybe I omitted that, but I could swear
I sent in his name and his address - ALJ: Okay.
CLMT:
I’m not saying you didn’t -
-
- - on my application form.
ALJ: You may have, but after you got the new rep, I - you have - - you’ve had Mr. Hammond in the paperwork
since about February 2012.
CLMT: Yeah.
We haven’t had a relationship in - -
ALJ: Yeah, that, that’s - CLMT:
- - a long time.
ALJ: Yeah, that’s okay. People hire and fire reps all
the time. It doesn’t matter to me, okay.
CLMT: Yeah.
ALJ: That met - - but I just want you to know you have
a right to have a representative. They have to go
10 - OPINION AND ORDER
through the process. Most of the people who appear
before us regularly know how, like Mr. Hammond, know
how to fill out the paperwork. If you don’t, we have
like everything else, the VA, we all have our rules, so
we have to have some process.
CLMT: Yeah.
ALJ: You want to go forward then?
CLMT: Yeah, I believe my medical evidence should speak
for itself, and from all my readings - ALJ: Well, you’re well trained. You, you’ve got - - I
looked at your record, your - - you know the medical
profession well.
CLMT: Yes I do, sir.
ALJ: Okay. All right, so you want to go ahead. You
understand you can have a - - you did have Mr. Hammond.
You and he had a disagreement. You fired him. So,
you’re going ahead without one at this hearing.
Tr. 42-43.
Thereafter the ALJ described the hearing process and
questioned Plaintiff, a medical specialist, and the VE.
A.
The ALJ did not err by failing to provide Plaintiff
with an opportunity to qualify his representative.
Plaintiff argues the ALJ erred by failing to advise
Plaintiff that he could “qualify” his friend as his
Representative by completing a form or an equivalent written
statement.
HALLEX I-1-1-11.A.2
Plaintiff cites the ALJ’s
“special duty to fully and fairly develop the record and to
2
SSA Hearings, Appeals, and Litigation Law Manual, a
publication that provides guidelines as to how ALJs are to handle
various aspects of the disability appeals process.
https://www.ssa.gov/OP-Home/hallex/hallex.html
11 - OPINION AND ORDER
ensure that the claimant’ interests are protected.”
Heckler, 713 F.2d 441, 443 (9th Cir. 1983).
Brown v.
“An ALJ’s duty to
develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.”
Mayes, 276 F.3d at 459-60.
The record reflects Plaintiff knew he had the right to have a
representative at the hearing.
Plaintiff, however, failed to
ensure that his representative was properly credentialed.
The
ALJ properly found Plaintiff failed to complete the paperwork
necessary to qualify Plaintiff’s friend to be his representative.
On this record the Court concludes the fact that the ALJ did
not offer Plaintiff further information or an opportunity to
complete the necessary paperwork to qualify his friend to be his
representative did not violate the ALJ’s duty to develop the
record and to protect the claimant’s interests.
B.
The ALJ did not err by failing to advise Plaintiff that
his friend could testify.
Plaintiff cross-examined the VE and delivered a summary at
the end of the hearing.
Tr. 87-92.
In the course of his summary
Plaintiff stated he “felt I had a representative that could at
least testify to my medical abilities that I had when I had them,
and what I’ve been doing since then . . . .”
Tr. 91.
Plaintiff
contends the ALJ erred by failing to develop the record when he
did not tell Plaintiff that his friend could be called to
testify.
12 - OPINION AND ORDER
The ALJ’s duty to develop the record is “triggered only when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.”
Mayes v.
Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
In this case
the ALJ had more than 1200 pages of medical records, Plaintiff’s
testimony, and the testimony of the medical expert.
The record,
therefore, was not “inadequate to allow for proper evaluation of
the evidence.”
Moreover, Plaintiff does not point to any
ambiguity in the evidence.
On this record the Court concludes the ALJ did not err when
he did not advise Plaintiff that he could call his friend to
testify.
C.
The ALJ did not err by asking leading questions.
Plaintiff contends the ALJ asked the medical expert, Sally
Clayton, L.C.P., leading questions to obtain the “‘non-disabling’
functional limitations desired.”
Pl.’s Br. at 8.
To succeed in a claim “that the ALJ did not impartially
assess the evidence . . . [a claimant] must show that the ALJ’s
behavior, in the context of the whole case, was so extreme as to
display clear inability to render fair judgment.”
Bayliss v.
Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005)(internal
quotations omitted)(quoting Rollins v. Massanari, 261 F.3d 853,
858 (9th Cir. 2001)).
This Court “must begin with a presumption
that the ALJ was unbiased,” which can only be rebutted “by
13 - OPINION AND ORDER
showing a ‘conflict of interest or some other specific reason for
disqualification.’”
Id.
The Court notes Plaintiff has not identified a conflict of
interest or any other specific reason to disqualify the ALJ, and
the record does not reflect evidence of bias on the part of the
ALJ.
On this record the Court concludes the ALJ did not err by
asking leading questions of the medical expert.
In summary, the Court concludes for these reasons the ALJ
did not act unfairly at the administrative hearing.
II.
The ALJ erred by improperly assessing the medical evidence.
Plaintiff contends the ALJ erred by improperly weighing the
medical evidence.
Disability opinions are reserved for the Commissioner.
C.F.R. §§ 404.1527(e)(1); 416.927(e)(1).
20
If there is not a
conflict between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than
that of an examining physician.
Lester, 81 F.3d at 830.
More
weight is given to the opinion of a treating physician because
the person has a greater opportunity to know and to observe the
patient as an individual.
Cir. 2007).
Orn v. Astrue, 495 F.3d 625, 632 (9th
In such circumstances the ALJ should also give
greater weight to the opinion of an examining physician over that
of a reviewing physician.
Id.
If a treating or examining
physician’s opinion is not contradicted by another physician, the
14 - OPINION AND ORDER
ALJ may only reject it for clear and convincing reasons.
Id.
(treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067
(9th Cir. 2006)(examining physician).
Even if one physician is contradicted by another physician,
the ALJ may not reject the opinion without providing specific and
legitimate reasons supported by substantial evidence in the
record.
Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066.
The
opinion of a nonexamining physician by itself is insufficient to
constitute substantial evidence to reject the opinion of a
treating or examining physician.
Widmark, 454 F.3d at 1066 n.2.
The ALJ may reject physician opinions that are “brief,
conclusory, and inadequately supported by clinical findings.”
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
A. Opinion of Satyanarayana Chandagiri, M.D., Treating
Physician
Dr. Chandagiri, a psychiatrist at the Veterans Affairs
Medical Center, began treating Plaintiff in September 2012.
On
July 22, 2013, Dr. Chandagiri conducted a disability evaluation
“to record the extent of impairment and disability due to
[Plaintiff’s] various mental health conditions that resulted in
[Plaintiff’s] inability to hold a job since June 1, 2009.”
Tr. 1434.
Dr. Chandagiri noted Plaintiff was alert and oriented
with impaired memory.
Plaintiff also had a Saint Louis
University Mental Status Examination (SLUMS) score of 26, which
indicated mild cognitive disorder.
15 - OPINION AND ORDER
Tr. 1435.
Dr. Chandagiri
found Plaintiff has pressured speech, is easily distracted, and
exhibits a stable but anxious mood.
Dr. Chandagiri opined
Plaintiff “remains very severely disabled for complex medical and
psychiatric reasons and will not be able to hold any
gainful employment in any capacity permanently.”
Tr. 1435.
Dr. Chandagiri also opined Plaintiff’s disability is likely
to last for more than 12 months and has existed for the last
several years, and he noted Plaintiff had been treated in the
clinic since 2002.
Dr. Chandagiri stated Plaintiff has been diagnosed with
PTSD, Bipolar disorder type 1 recurrent recent episode manic or
mixed, Personality disorder NOS, Cognitive disorder NOS, past
head injuries, obstructive sleep apnea, chronic pain, and knee
injury.
He found Plaintiff’s conditions “interfere with his
ability to perform basic activities of daily living that are
essential to any work place.”
Tr. 1436.
Dr. Chandagiri
administered the PCL C test for PTSD on which Plaintiff scored
69, “thus indicating high levels of ongoing symptoms of PTSD.”
Tr. 1436.
Dr. Chandagiri also administered the World Health
Organization Disability Assessment Schedule 2.0 (WHODAS 2.0) on
which Plaintiff scored 134 indicating “full disability.”
Tr. 1436.
Dr. Chandagiri reported Plaintiff’s
severe anxiety, avoidance response, ideas of
reference, paranoia, tendency to misinterpret
16 - OPINION AND ORDER
others motive, anger and rage prevents him from
going out of his home on his own. He describes
quick anger and rage and describes instances of
severe road rage and avoidance is a way to
compensate for his poor ability to modulate his
anger, rage and risk for violence. He has a car
but seldom drives more than two to three blocks
and avoids going further away from home or going to
new places, crowded roads. He fears using public
transportation and hence he avoids using them.
He gets easily agitated and fears using public
transport or asking anyone else to give him a ride.
Tr. 1436.
Dr. Chandagiri stated Plaintiff cannot sit still for over 30
minutes without becoming agitated unless he is at home.
He
avoids new places and crowds and cannot stand for long periods in
a public place.
He cannot walk more than one-half mile and does
not even go out to meet his daughter.
Dr. Chandagiri noted Plaintiff’s symptoms cause social
isolation from friends, family, and former colleagues.
avoids conversations with strangers.
Plaintiff
Dr. Chandagiri stated
[m]ost conversations agitate him and he starts
to have severe emotional dysregulation,
agitation and anxiety. He avoids hospitals,
doctors offices, law enforcement officials as
they are all reminders of his traumatic experiences
when he worked as a Nurse in the prison system. The
traumatic memories trigger thoughts of violence and
his past experiences.
He cites multiple work related triggers, loud
noise, certain TV shows become too distressing
and he becomes agitated, loud, restless and he
describes as having a short fuse, ill tempered
and angry and later he has rage for over several
days. He finds it hard to meet the usual social
expectations of waiting for his turn, listening
and reciprocal conversation with the situation
17 - OPINION AND ORDER
emotionally dysregulating him and he ends up
with severe rage, emotional outburst.
He experiences paranoia, ideas of reference,
triggers self critical thoughts and this in turn
leads to avoidance response.
He continues to have significant problems with
memory. He cannot remember simple instructions
including names, telephone numbers, dates and
appointments, times to pay bills, complete his
tax papers. He has difficulty filling out simple
forms, applications as he becomes very agitated,
restless, this tends to trigger flashbacks, anger
outbursts. His concentration is poor. Gets distracted easily. He has avoided completing a
narrative that was asked of him to fill out the
description of his current functioning. He has
avoided tasks or postponed completing the tasks
and has difficulty in self regulation, time
management and identifying clear priorities. He
cannot plan and manage his own money.
* * *
His ongoing mood instability, impulsivity, poor
social functioning, poor self care, poor hygiene,
avoidance, hyper vigilance, poor emotional regulation, being triggered by loud sound, perceived
harm tendency to blame and overreact emotionally
with intense anger, anxiety or sex addict like
behaviors when manic has made it difficult for
him to interact with others, tolerate any friends
or family, go out and volunteer or apply for any
job. He is unable to withstand customary delays
in scheduling to the extent he reacts with severe
agitation and fears the worse scenario. This often
takes several days and weeks for him to reset
himself. In extreme cases he has become suspicious
of the motives of others. He is isolated. He is
unable to work as a team player. He will not be
able to work in any team setting, deal with coworkers, take instructions and remember the
instructions, tolerate any stress or challenges
in work like situations or learn any new skills or
be flexible.
Tr. 1437.
18 - OPINION AND ORDER
Dr. Chandagiri opined Plaintiff’s limitations satisfy the
criteria of a Social Security Listed Impairment with demonstrated
loss of cognitive functioning, affective lability, mood changes,
personality changes, thinking errors, and memory problems.
He
found Plaintiff has persistent difficulties in activities of
daily living and repeated that Plaintiff was permanently disabled
and unable to work in any full-time work or work-like setting.
Tr. 1438.
The ALJ noted Dr. Chandagiri’s opinion and stated it “is not
given great weight.”
Tr. 30.
The ALJ found Dr. Chandagiri's
conclusion unpersuasive “because it does not address the
claimant’s specific functional abilities, but is a conclusion
regarding the ultimate issue of disability, which is expressly
reserved to the Commissioner.”
Tr. 29-30.
The ALJ stated:
In addition, Dr. Chandagiri’s statement was
based in large part on the claimant’s responses
to subjective scales, and as noted above, mental
status examination findings have been largely
unremarkable. Finally, the activities documented
in the record establish greater functioning than
assessed by Dr. Chandagiri. Because the statement
is not well supported or consistent with the
record as a whole, which contains relatively
unremarkable findings, it is not given great weight.
Tr. 30.
1.
Mental-Status Examinations
To support his opinion that Plaintiff is not disabled,
the ALJ relies on multiple records documenting unremarkable
mental-status examinations.
19 - OPINION AND ORDER
Some of those records, however, are
not mental-health examinations, but rather reflect examinations
by providers and emergency-room personnel for Plaintiff’s knee
and back impairments.
See Tr. 308, 412, 420, 425, 431, 433-34,
444, 514, 517, 520, 578, 593-94, 596, 599, 690, 743, 758, 761,
763, 801, 809.
Several of the ALJ’s citations also refer to
duplicates of records previously cited.
See Tr. 1062, 1150,
1163, 1166, 1169, 1269.
The ALJ points to Plaintiff’s mental-health outpatient
counseling notes from November and December 2009 and November
2010 in which Plaintiff reported continued difficulty in
regulating his mood and presented with rapid speech and
tangential thoughts.
Tr. 483, 534.
In the 2010 note Plaintiff
describes experiencing anxiety and depression.
Tr. 528.
The ALJ
also cites December 2009 and March 2011 notes from Gregory V.
West, M.D., Plaintiff’s primary-care physician, in which the
doctor notes Plaintiff was appropriate, cooperative, and had
normal insight and judgment.
Tr. 458, 525-26, 822.
Dr. West
also found Plaintiff’s PTSD screen was positive and referred him
to undergo a mental-health evaluation.
Tr. 525-26.
The ALJ also
cites a January 2011 mental-health evaluation in which
Plaintiff’s judgment appeared grossly intact, but the examining
provider diagnosed an adjustment disorder.
Tr. 783-84.
In
addition, the ALJ cites a December 2011 treatment note from
Elizabeth Fernandez, M.D., in which she noted Plaintiff “seemed
20 - OPINION AND ORDER
euthymic and not much pressured speech today.”
Tr. 1100.
The ALJ, however, also references a psycho-diagnostic
examination from September 2011 in which B. Scot Cook, Psy.D.,
records “strong eye contact” with a rambling speaking manner and
“obviously some issues with short-term and working memory as well
as mathematical skills.”
Tr. 967.
Dr. Cook diagnosed Plaintiff
with Bipolar I Disorder, depressed; PTSD, and Adjustment Disorder
with Anxiety.
of 36.3
Tr. 970.
He assessed Plaintiff with a GAF score
The ALJ also refers to a March 2012 Mental Status
Examination by Dr. Cook.
Tr. 974.
Dr. Cook stated Plaintiff
would be “hard pressed to maintain a regular schedule, relate to
workers or superiors, carry out instructions, cope with workrelated stress and setbacks, solve minor problems with people or
duties, or modulate his emotions when required.”
Dr. Cook assessed Plaintiff with a GAF of 35.
3
Tr. 976.
Finally, the ALJ
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)). In the fourth
edition, a GAF of 31 to 40 indicated some impairment in reality
testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) or major impairment in several areas such
as work or school, family relations, judgment, thinking or mood
(e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children, is
defiant at home, and is failing at school).
21 - OPINION AND ORDER
cites a July 2013 mental-status examination by Dr. Cook, who
reported Plaintiff made strong eye contact and that his dress,
grooming, and hygiene were adequate.
Tr. 1552.
however, concluded there were not any
Dr. Cook,
"substantive changes in
his presentation or functional levels since my initial meeting
with this man in 2011.
Once again, it is difficult to conceive
of any work-setting or employer that could work within Mr.
Anderson’s limitations.”
Tr. 1554.
Thus, Dr. Cook concluded,
like Dr. Chandagiri, that Plaintiff was not able to maintain
employment.
On this record the Court concludes the ALJ’s
discounting of the opinion of Dr. Chandagiri, Plaintiff's
treating physician, on the basis of the opinions of Drs. West and
Fernandez and other unidentified medical sources is not a legally
sufficient reason supported by substantial evidence in the record
for doing so.
2.
Activities of Daily Living
The ALJ also finds Dr. Chandragiri’s conclusion that
Plaintiff has extreme limitations in social functioning is
inconsistent with Plaintiff’s level of activity and social
interaction.
Tr. 30.
The ALJ cited the January 2011 mental-health
examination by Mark Dillon, Ph.D.
Tr. 411-14.
Dr. Dillon noted
Plaintiff reported watching two or three television shows a day
22 - OPINION AND ORDER
and would only watch comedies.
Tr. 412.
Plaintiff told
Dr. Dillon that he spent his time working on his house and
looking for jobs on the internet.
He reported he and his fiancé
go out to dinner about once a month, and he does laundry,
cleaning, and work in the kitchen.
He cleaned and organized the
shop and the garage and added he was particularly active around
the house because he was preparing it for sale.
Plaintiff
reported he enjoyed camping, having friends over, barbeques, and
attending dinner parties.
He stated "he primarily has friends
from work, and has seen them less in the last year.”
Tr. 412.
Dr. Dillon concluded Plaintiff’s “social functioning has
decreased at this point.”
Tr. 414.
The ALJ also noted Plaintiff’s September 2011 report to
Dr. Cook.
Tr. 27.
At that time Plaintiff reported a shower and
breakfast routine, after which he searched for jobs online;
checked his email; and performed light cooking, cleaning,
laundry, dishes, and household chores.
Tr. 969.
Plaintiff said
he refrained from tasks involving lifting, pushing, pulling, or
other demanding physical chores.
hunting, fishing, or camping.
He no longer felt capable of
“Socializing is largely limited to
telephone conversations with friends.
He makes some social
contact via regular church attendance.”
Tr. 969.
Mr. Anderson pointed out during [the] interview
that he felt previous reports of his social
activities and functioning have overestimated
his capabilities, essentially depicting him
23 - OPINION AND ORDER
as socially engaged and actively participating
with others to a routine and normal degree.
According to him, it would be more accurate to
say that his social activities were normal and
routine until 3 years ago but since that time
he has felt himself to be largely socially
avoidant, not trusting of people, generally
staying home to keep his social anxiety to a
minimum. His daily routine is largely consumed
by tinkering on the computer or with small
household projects, and going to occasional
appointments.
Tr. 969.
The ALJ noted Plaintiff exercised on a daily basis
including “minor weight lifting” and walking two miles.
Tr. 27.
Plaintiff, however, reported in November 2012 that he walked
two miles a day “depend[ing] on how bad knees are feeling).”
Tr. 1515.
On this record the Court concludes the ALJ’s
determination that Plaintiff’s activities are inconsistent with
Dr. Chandragiri’s opinion is not supported by substantial
evidence and are not legally sufficient reasons for the ALJ to
reject the opinion of Dr. Chandragiri, Plaintiff’s treating
physician.
In summary, the Court concludes the ALJ erred when he only
gave some weight to the opinion of Plaintiff’s treating
physician, Dr. Chandragiri, because the ALJ did not provide
legally sufficient reasons supported by substantial evidence in
the record for doing so.
24 - OPINION AND ORDER
B. Opinions of Cartel Kennemer, Psy.D., and Robert Henry,
Ph.D., Reviewing Physicians
Dr. Kennemer reviewed Plaintiff’s medical records and opined
in December 2011 that Plaintiff had moderate limitations in his
ability to understand, to remember, and to carry out detailed
instructions; to maintain attention and concentration for
extended periods; and to interact appropriately with the general
public.
Tr. 104-06.
Dr. Henry reviewed Plaintiff’s medical
records in July 2012 and agreed with Dr. Kennemer.
Tr. 120-21.
Both psychological consultants stated Plaintiff was able to
“understand, remember, and carry out short instruction (1-2
steps).
[Claimant] is not able to understand, remember, and
carry out more detailed instructions, so tasks should be broken
down into simple task sequences.”
Tr. 104, 120.
The
consultants’ opinion regarding “one to two step instructions” is
uncontradicted.
consultants.
The ALJ gave some “weight” to the reviewing
Tr. 29.
The ALJ found Plaintiff “can perform simple, routine tasks
consistent with a specific vocational preparation (SVP) level of
1 or 2,” but he did not adopt the limitation articulated by the
reviewing consultants to “one to two step” instructions.
Tr. 22.
Moreover, the ALJ did not provide any specific reasons supported
by substantial evidence in the record for rejecting the reviewing
consultants' opinions as to Plaintiff's limitation to “one to two
step” instructions.
25 - OPINION AND ORDER
In addition, an RFC limitation that specifically requires
“one or two step instructions” is inconsistent with SVP level 2.
This phrasing is “a nearly verbatim recital” of the definition of
reasoning level 1.
See Dictionary of Occupational Titles (DOT)
App’x C (9th ed. 1991)(available at 1991 WL 688702) definition of
reasoning level 1.
See also Whitlock v. Astrue, Case No. 3:10-
cv-357-AC, 2011 WL 3793347, at *5 (D. Or. Aug. 24, 2011).
On this record the Court concludes the ALJ erred by failing
to incorporate into Plaintiff’s RFC the reviewing consultants'
assessment of Plaintiff as being limited to “one to two step”
instructions, and, as a result, the ALJ posed an inaccurate
hypothetical to the VE at Step Five.
REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
When "the record has been fully developed
and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
26 - OPINION AND ORDER
the discretion of the court.
Harman, 211 F.3d 1178.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
Harman, 211 F.3d at 1178.
The
court should grant an immediate award of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
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 second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
This Court has determined the ALJ erred when he rejected the
opinions of Drs. Kennemer, Henry, and Chandragiri.
those opinions establish Plaintiff is disabled.
If credited,
Thus, the Court
concludes Plaintiff is disabled based on this record and that no
useful purpose would be served by a remand of this matter for
further proceedings.
See Harman, 211 F.3d at 117.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner pursuant
to Sentence Four, 42 U.S.C. § 405(g), for the immediate
27 - OPINION AND ORDER
calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED.
DATED this 14th day of July, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
28 - OPINION AND ORDER
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