Anderson v. Commissioner, Social Security Administration
Filing
24
Opinion and Order - The Commissioner's decision is REVERSED and REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this opinion. Signed on 11/30/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MELODY F. ANDERSON,
Plaintiff,
Case No. 6:15-cv-01627-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.
Karen Stolzberg, 11830 S.W. Kerr Parkway, Suite 315, Lake Oswego, OR 97035.
Attorney for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, District of Oregon, 1000 S.W. Third Avenue,
Suite 600, Portland, OR 97204-2902; Michael Howard, Special Assistant United States Attorney,
OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue,
Suite 2900 M/S 221A, Seattle, WA 98104-7075.
Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff, Mrs. Melody F. Anderson, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) finding that Plaintiff had
medically improved as of January 1, 2012, resulting in the termination of Plaintiff’s Disability
Insurance Benefits (“DIB”). For the following reasons, the Commissioner’s decision is
REVERSED and the case is REMANDED for further proceedings consistent with the
instructions herein.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff protectively filed an application for DIB on September 14, 2006, alleging
disability beginning on May 31, 2006. AR 93, 99. She alleged disability due to fibromyalgia,
bipolar disorder, and anxiety disorder. AR 118. Initially, the Commissioner denied Mrs.
PAGE 2 – OPINION AND ORDER
Anderson’s application, and she requested a hearing for reconsideration before an Administrative
Law Judge (“ALJ”). AR 118, 122-125, 127. In a decision dated June 11, 2008, which is the
comparison point decision (“CPD”) under the Social Security regulations, the ALJ (“CPD-ALJ”)
determined that a hearing was unnecessary because the record evidence supported a finding of
disability beginning on May 31, 2006. AR 99-105. The ALJ also noted that Plaintiff’s disability
was likely to improve with appropriate treatment, and recommended a continuing disability
review in 24 months. AR 105.
Upon subsequent review, the Commissioner found that Plaintiff’s impairments improved
enough after the CPD for her to be able to return to work, and that she was no longer disabled as
of January 2012. AR 152-154. In response, Plaintiff requested reconsideration before a Disability
Hearing Officer (“DHO”). AR 156-57. The DHO held a hearing on July 16, 2012, and in a
decision dated July 25, 2012, upheld the determination of Plaintiff’s medical improvement
relating to her ability to work, finding her “not disabled.” AR 166-188. Plaintiff appealed the
DHO’s decision, and requested a hearing before an ALJ. AR 189.
An administrative hearing was held on November 20, 2013. AR 44-87. In a decision
dated December 23, 2013, the ALJ found Plaintiff’s medical impairments had improved after the
CPD such that she was no longer disabled as of January 1, 2012. AR 23-36. After considering
Plaintiff’s stated reasons for disagreeing with the ALJ’s decision, the Appeals Council denied her
request for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-4.
Plaintiff now seeks judicial review of that decision.
B. The Sequential Analysis
In order to determine whether a claimant’s disability is continuing or has ceased, and,
therefore, whether the claimant is still entitled to disability benefits, an eight-step process is
followed. See Griego v. Sullivan, 940 F.2d 942, 944 n.1 (5th Cir. 1991); Aikens v. Shalala, 956
PAGE 3 – OPINION AND ORDER
F.Supp. 14, 16 & n.2 (D.D.C. 1997). At step one, the issue is whether the claimant is engaged in
substantial gainful activity. 20 C.F.R. § 404.1594(f)(1). If so, claimant’s disability is deemed to
have ceased and benefits are terminated. Id.
At step two, the issue is whether claimant’s impairment meets or equals the impairments
set out in the Listing of Impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. If so,
benefits continue. 20 C.F.R. §§ 404.1594(f)(2), 416.994(b)(5)(i). If not, the analysis continues.
At step three, the issue is whether there has been any medical improvement since the original
determination of disability. If there has been medical improvement, as shown by a decrease in
medical severity, the ALJ proceeds to step four. Otherwise, and absent medical improvement, the
ALJ proceeds to step five. 20 C.F.R. §§ 404.1594(f)(3), 416.994(b)(5)(ii).
At step four, the ALJ must determine whether a medical improvement is related to the
claimant’s ability to work, i.e., whether there has been an increase in her residual functioning
capacity (“RFC”). If so, the ALJ proceeds to step six. Otherwise, and absent an ability to perform
work (as with an absence of medical improvement), the ALJ proceeds to step five. 20 C.F.R.
§§ 404.1594(f)(4), 416.994(b)(5)(iii).
Step five applies in either of the following situations: if there has been no medical
improvement or if the improvement is unrelated to the claimant’s ability to work. 20 C.F.R.
§§ 404.1594(f)(3) and (4), 416.994(b)(5)(ii) and (iii). At step five, the ALJ determines whether
any of the two groups of exceptions to the medical improvement standard of review apply. 20
C.F.R. §§ 404.1594(f)(5), 416.994(b)(5)(iv). If no exceptions apply, the claimant’s disability
continues. If the first group of exceptions apply, the ALJ proceeds to step six, and if the second
group of exceptions apply, the claimant’s disability is terminated. Id.
PAGE 4 – OPINION AND ORDER
If the claimant’s medical improvement is related to her ability to work or if one of the
relevant step five exceptions applies, the ALJ proceeds to step six. At step six, the ALJ
determines whether the claimant’s impairments are sufficiently severe so as to limit her physical
or mental abilities to do basic work activities. If they are not sufficiently severe, disability is
terminated. 20 C.F.R. §§ 404.1594(f)(6), 416.994(b)(5)(v). If the claimant’s impairments are
sufficiently severe then, at step seven, the ALJ assesses the claimant’s current RFC to determine
whether she can perform past relevant work. 20 C.F.R. §§ 404.1594(f)(7), 416.994(b)(5)(vi).
Once again, if she can perform past work, disability terminates. Otherwise, the ALJ proceeds to
step eight. Id.
Finally, at step eight, reached if the claimant cannot perform past work, the ALJ
considers whether, given the claimant’s age, education, past work experience, and RFC, the
claimant can perform other work in the national economy. 20 C.F.R. §§ 404.1594(f)(8),
416.994(b)(5)(vii). If so, disability terminates. Otherwise, benefits continue. Id.
C. The ALJ’s Decision
The ALJ began his opinion by noting that Plaintiff’s representative requested him to
subpoena Plaintiff’s counselor, Ms. Laila Ayyoub Cusick, LCSW, to give testimony at a hearing.
AR 23. The ALJ determined that Plaintiff did not demonstrate a substantial need for
Ms. Cusick’s testimony that warranted the issuance of a subpoena. AR 23. The ALJ then applied
the sequential analysis. AR 23-36.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity
through January 1, 2012, the date the ALJ determined Plaintiff’s disability ended. AR 25. At step
two, the ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of impairments listed in the regulations. Id. At step
three, the ALJ found Plaintiff experienced medical improvement since the CPD; and, at step four
PAGE 5 – OPINION AND ORDER
he noted that the improvement was related to her ability to work—rendering step five
inapplicable. AR 26-27.
At step six, the ALJ found that Plaintiff’s impairments of bipolar disorder, anxiety
disorder, history of obesity status post bariatric surgery, and fibromyalgia were severe
impairments that cause more than minimal functional limitations. AR 27-28. The ALJ also found
at step four that Plaintiff’s additional complaints of sleep apnea, urinary incontinence, hand
tremors, and Attention Deficit Disorder did not constitute severe medically determinable
impairments because they present only transient and mild limitations or are well controlled with
treatment. Id.
At step seven, the ALJ found that as of January 2012, Plaintiff had the RFC to perform
modified light work. AR 28. The additional limitations found by the ALJ were that Plaintiff:
(1) should avoid hazardous working conditions including working at heights or around
dangerous machinery with moving parts; (2) can remember simple and routine instructions and
procedures, but might have difficulty sustaining work with more complex instructions and
procedures; (3) can sustain attention for simple and routine tasks, but would be unlikely to
sustain attention for more complex tasks; (4) should not be required to work with the public on
more than a very infrequent basis; (5) can engage in brief and normal interactions with
coworkers and supervisors; and (6) would work best in a predictable work environment that does
not require her to perform executive or high-level decision-making. AR 28-35. In reaching this
conclusion, the ALJ considered Plaintiff’s testimony, but found it was not fully credible. AR 28.
Additionally, the ALJ considered the medical report of examining psychologist, Dr. Leslie
Carter, giving her opinion limited weight. AR 34. The ALJ also found Plaintiff’s counselor,
Ms. Cusick’s February 2013 statement regarding Plaintiff’s ability to work unpersuasive. Id. The
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ALJ gave great weight to the opinions of the state agency reviewing psychologists, and some
weight to the state agency medical consultants. AR 34-35.
In carrying out the remainder of step seven, the ALJ found Plaintiff was unable to
perform her past relevant work as a pharmacy technician because that position entails a narrow
margin for error and contact with the public. AR 35. At step eight, the ALJ found—with the
assistance of a vocational expert (“VE”) who testified at the hearing—that considering Plaintiff’s
age, education, work experience, and RFC, she was able to perform a significant number of jobs
existing in the national economy. AR 35-36. Based on this finding, the ALJ concluded that
Plaintiff’s disability ended on January 1, 2012. AR 36.
DISCUSSION
Plaintiff seeks review of the determination by the ALJ that her disability ended as of
January 1, 2012. Plaintiff argues that the ALJ erred in making that determination by: (1) failing
to develop the record by not issuing a subpoena for the testimony of mental health counselor,
Ms. Cusick; (2) improperly rejecting Ms. Cusick’s statement regarding Plaintiff’s ability to
function in the workplace; (3) improperly limiting the weight given to examining psychologist,
Dr. Carter’s report; (4) improperly finding that Plaintiff’s impairments, either individually or in
combination with one another, do not meet or equal the severity of an impairment listed in the
regulations; (5) improperly finding Plaintiff’s subjective symptom testimony less than fully
credible; (6) improperly finding that Plaintiff’s medical improvement was related to her ability to
work; (7) failing to take into account Plaintiff’s age and the time she has been out of the
workforce when determining her RFC; and (8) presenting an inadequate hypothetical to the VE
to determine if Plaintiff was able to perform a significant number of jobs existing in the national
economy. Plaintiff urges the Court to remand for an immediate award of benefits.
PAGE 7 – OPINION AND ORDER
A. Record Development
Plaintiff argues that the ALJ erred by not issuing a subpoena for the testimony of
Ms. Cusick. Plaintiff made the request on the day of her hearing, November 20, 2013.1 The
reason for the request was because Ms. Cusick refused to sign a letter drafted by Plaintiff’s
attorney that purported to summarize a conversation they had concerning Plaintiff’s treatment
history with Ms. Cusick. In making this request, Plaintiff’s attorney stated that issuance of the
subpoena would likely encourage Ms. Cusick to sign the letter. AR 50.
A claimant requesting a subpoena must “state the important facts that the witness or
document is expected to prove; and indicate why these facts could not be proven without issuing
a subpoena.” 20 C.F.R. §§ 404.950(d)(2), 416.1450(d)(2). A claimant is entitled to “such crossexamination as may be required for a full and true disclosure of the facts.” See Solis v.
Schweiker, 719 F.2d 301, 302 (9th Cir. 1983) (quoting 5 U.S.C. § 556(d)). The ALJ has
discretion to decide when cross-examination is warranted. Copeland v. Bowen, 861 F.2d 536,
539 (9th Cir. 1988). Here, Plaintiff was not denied the opportunity to cross-examine a witness
whose findings contradicted medical evidence that was favorable to her. See Solis, 719 F.2d
at 302 (finding that it was an abuse of discretion to deny the claimant’s request to cross-examine
a state agency physician who rendered an adverse medical opinion where the physician’s report
was crucial to the ALJ’s decision). Instead, Plaintiff argues that Ms. Cusick’s testimony would
support Plaintiff’s claim, “rendering [her] argument that cross-examination was necessary less
compelling.” Scott v. Astrue, 2010 WL 2292983, at *9 (D. Ariz. June 8, 2010).
The ALJ denied Plaintiff’s subpoena request because Ms. Cusick’s treatment records
1
The Court notes the regulations require that a request for the issuance of a subpoena be
filed with the Social Security Administration at least five days before the date of the hearing. 20
C.F.R. §§ 404.950(d)(2), 416.1450(d)(2). Here, Plaintiff made her request at the beginning of the
hearing. The ALJ, however, did not deny the request as untimely.
PAGE 8 – OPINION AND ORDER
were already part of the record, and Plaintiff failed to demonstrate a substantial need for
Ms. Cusick’s appearance. In other words, because Ms. Cusick’s extensive treatment history with
Plaintiff was in the record, Plaintiff failed to demonstrate that Ms. Cusick’s testimony was either
essential or unobtainable by other means. Moreover, the ALJ noted that Ms. Cusick informed
Plaintiff’s counsel by email that Ms. Cusick was not qualified to assess Plaintiff’s need for
disability benefits or judge her ability to function at work.2 For these reasons, the ALJ did not err
in denying Plaintiff’s request for a subpoena. See, e.g., Deguzman v. Astrue, 2013 WL 308819, at
*2 (W.D. Wash. Jan. 7, 2013), report and recommendation adopted, 2013 WL 308959 (W.D.
Wash. Jan. 25, 2013); Graham v. Astrue, 2011 WL 1671804, at *4 n.6 (C.D. Cal. Apr. 29, 2011);
Scott, 2010 WL 2292983, at *9.
B. The Medical Testimony
Plaintiff argues that the ALJ improperly evaluated the medical testimony of her treating
mental health therapist, Ms. Cusick, and her examining psychologist, Dr. Carter. Each is
discussed in turn.
1. Ms. Cusick
Plaintiff asserts the ALJ failed to give specific, clear, and convincing reasons for
rejecting the opinion of Plaintiff’s mental health therapist, Ms. Cusick. Specifically, Plaintiff
asserts that the ALJ committed legal error when he rejected Ms. Cusick’s opinion that “[i]t is
difficult to imagine [Plaintiff] being able to tolerate the demands of a workplace yet . . . .”
AR 935. The ALJ disregarded Ms. Cusick’s opinion because, although she may provide insight
into the Plaintiff’s impairments and how they affect her ability to work, she is not an acceptable
2
In a reply email to Plaintiff’s counsel, Ms. Cusick wrote, “The letter [drafted by
Plaintiff’s attorney] comes to some conclusions about whether I think Melody can function at
work. I was pretty careful to avoid giving an opinion about that when we spoke, because I’m not
trained or qualified to assess fitness for work.” AR 390.
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medical source that is able to provide medical opinions in the record. AR 34; see also 20 CFR
§§ 404.1513(d)(1), 404.1527(a)(2), 416.927(a)(2); SSR 06-03p, available at 2006 WL 2329939
(Aug. 9, 2006). Additionally, the ALJ noted Ms. Cusick’s admission that she is not qualified to
provide an assessment regarding Plaintiff’s fitness for work. AR 23, 34, 390.
a. Standard for evaluating Ms. Cusick’s testimony
As a preliminary matter, Plaintiff misstates the proper legal standard the ALJ was
required to apply in order to discount Ms. Cusick’s opinion. SSR 06-03p defines “acceptable
medical sources” as licensed physicians, licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified speech pathologists. Health care providers who
are not “acceptable medical sources,” such as “nurse practitioners, physician’s assistants,
chiropractors, audiologists, and therapists,” are still considered “medical sources” under the
regulations, and the ALJ can use these other medical source opinions in determining the
“severity of [the individual’s] impairment(s) and how it affects [the individual’s] ability to
work.” 20 C.F.R. § 404.1513(d). An “other” medical source may not, however, provide medical
opinions or be given “controlling” weight as a treating medical source. See SSR 06-03p. Because
Ms. Cusick is a licensed clinical social worker, she is considered an “other” medical source. See
SSR 06-03p (noting that medical sources who are not “acceptable medical sources” include
licensed clinical social workers); see also Fernandez v. Barnhart, 68 F. App’x 820, 821 (9th
Cir. 2003) (“As a therapist without a doctorate, [mental health therapist] does not meet the
regulations’ requirements for an ‘acceptable medical source.’”).
An ALJ may not reject the competent testimony of “other” medical sources without
comment. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the competent
testimony of “other” medical sources, the ALJ need only give “reasons germane to each witness
for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r
PAGE 10 – OPINION AND ORDER
of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). In rejecting such testimony, the ALJ need not
“discuss every witness’s testimony on an individualized, witness-by-witness basis. Rather, if 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.” Id. at 1114. The ALJ also
may “draw inferences logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982).
An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,
either individually or in the aggregate.” Molina, 674 F.3d at 1115 (quoting Nguyen, 100 F.3d
at 1467 (9th Cir. 1996)). This error may be harmless “where the testimony is similar to other
testimony that the ALJ validly discounted, or where the testimony is contradicted by more
reliable medical evidence that the ALJ credited.” See id. at 1118-19. Additionally, “an ALJ’s
failure to comment upon lay witness testimony is harmless where ‘the same evidence that the
ALJ referred to in discrediting [the claimant’s] claims also discredits [the lay witness’s] claims.’”
Id. at 1122 (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). Where an ALJ
ignores uncontradicted lay witness testimony that is highly probative of the claimant’s condition,
“a reviewing court cannot consider the error harmless unless it can confidently conclude that no
reasonable ALJ, when fully crediting the testimony, could have reached a different disability
determination.” Stout, 454 F.3d at 1056.
In considering how much weight to give “other” medical source opinion evidence, the
ALJ should consider: (1) “how long the source has known and how frequently the source has
seen the individual”; (2) “how consistent the opinion is with other evidence”; (3) “the degree to
which the source presents relevant evidence to support an opinion”; (4) “how well the source
explains the opinion”; (5) “whether the source has a specialty or are of expertise related to the
PAGE 11 – OPINION AND ORDER
individual’s impairment(s)”; and (6) “any other factors that tend to support or refute the
opinion.” SSR 06-03p. The fact that a source is an “acceptable medical source” sometimes
entitles that source’s opinions to more weight than the opinions from other medical sources. Id.
Nonetheless, in certain instances, after applying the factors for weighing opinion evidence, an
ALJ may properly find that an opinion from a medical source who is not an “acceptable medical
source” outweighs the opinion of the “acceptable medical source”:
For example, it may be appropriate to give more weight to the
opinion of a medical source who is not an acceptable medical
source if he or she has seen the individual more often than the
treating source and has provided better supporting evidence and a
better explanation for his or her opinion. 3
Id.
Plaintiff asserts that Ms. Cusick’s opinion should have been given the same weight as an
“acceptable medical source” because her treatment of Plaintiff was overseen by Dr. Eun Park.
Plaintiff cites to Benton ex rel. Benton v. Barnhart for the proposition that a mental health
therapist who is overseen by a psychiatrist as part of a team approach to treatment should be
accorded “acceptable medical source” status. 331 F.3d 1030 (9th Cir. 2003). Thus, Plaintiff
argues, Ms. Cusick’s opinion should have been entitled to substantial, if not controlling, weight.
Benton, however, dealt with whether the medical opinion of a psychiatrist that had only seen the
plaintiff once, but was overseeing her team of therapists, should have been considered a “treating
source,” rather than an “examining source.”4 Id. at 1035-1041. Furthermore, Dr. Park never
3
Giving more weight to the opinion of a non-acceptable medical source over a treating
medical source does not violate the treating source rules under 20 C.F.R. § 404.1527(d)(2).
4
A treating source is an “acceptable medical source” that provides a patient with medical
treatment in an ongoing relationship. 20 C.F.R. § 404.1502. An examining source, or nontreating
source, is an acceptable medical source that has examined a patient in person but does not have
an ongoing relationship with the patient. Id. Generally, the opinions of a treating source are given
more weight than those of an examining source. Holohan, 246 F.3d 1195, 1202 (9th Cir. 2001).
PAGE 12 – OPINION AND ORDER
adopted Ms. Cusick’s opinion on Plaintiff’s ability to return to work in Dr. Park’s own reports.
Thus, the Court considers Ms. Cusick as an “other” medical source.
b. The ALJ’s evaluation of Ms. Cusick’s testimony
The ALJ discounted Ms. Cusick’s statement that she did not believe Plaintiff could return
to work because Ms. Cusick was not an acceptable medical source. This is not a germane reason
to discount other medical source testimony. See, e.g., Haagenson v. Colvin, 2016 WL 3910628,
at *2 (9th Cir. July 19, 2016) (“The ALJ also failed to provide germane reasons for rejecting the
opinions of Haagenson’s nurse and counselor, who constitute ‘other sources’ that can provide
evidence about the severity of Haagenson’s impairments and how they affect her ability to work.
The only reason that the ALJ offered for rejecting their opinions is that they are not ‘acceptable
medical sources’ within the meaning of the federal regulation. However, the regulation already
presumes that nurses and counselors are non-acceptable medical sources, yet still requires the
ALJ to consider them as ‘other sources.’”).
The second reason provided by the ALJ for discounting Ms. Cusick’s statement regarding
Plaintiff’s ability to function in the workplace is that Ms. Cusick herself acknowledged that she
is not qualified to give opinions pertaining to Plaintiff’s ability to work. AR 390. This reason was
sufficiently germane to disregard Ms. Cusick’s statement. Moreover, the ALJ also took into
consideration the length, nature, and extent of Ms. Cusick’s treatment relationship with Plaintiff,
as evidenced by the ALJ’s consistent reference to Ms. Cusick’s treatment records throughout the
ALJ’s analysis. AR 23-36.
2. Dr. Carter
Plaintiff next argues the ALJ erred in giving Dr. Carter’s report limited weight. Dr. Carter
was an examining psychologist who also reviewed Plaintiff’s medical records. Plaintiff contends
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that Dr. Carter’s report should be credited as true, and an award of immediate benefits should be
granted.
Dr. Carter’s opinions were contradicted by the opinions of the state agency reviewing
psychologists and the ALJ rejected Dr. Carter’s opinion in favor of the opinion state agency
consultants. Thus, the ALJ needed to provide “specific, legitimate reasons” for discrediting
Dr. Carter’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see also Roberts v.
Shalala, 66 F.3d 179, 184 (9th Cir. 1995), as amended (Oct. 23, 1995) (noting that an ALJ may
reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating
physician when he gives specific, legitimate reasons for doing so, and those reasons are
supported by substantial record evidence”).
The ALJ gave Dr. Carter’s report limited weight because: (1) she “seems to find a large
part of the claimant’s ‘disability’ on physical conditions, which are outside her area of
expertise”; (2) her report “appears to be little more than a records review, not an evaluation”; and
(3) Dr. Carter’s report was generated in “an effort to generate evidence for the current appeal.”
AR 34. Each is discussed in turn.
First, Dr. Carter is a licensed psychologist with a Ph.D.; Dr. Carter is not a medical
doctor. AR 919. The ALJ was correct in noting that some of Dr. Carter’s clinical opinion related
to Plaintiff’s physical impairments, and is thus entitled to less weight. See 20 C.F.R. §
404.1527(c)(5) (“We generally give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.”). The ALJ, however, failed to take into account that much of Dr. Carter’s opinion
was also grounded in her area of expertise—Plaintiff’s psychological impairments. For example,
Dr. Carter stated, “[t]he panic episodes make her socially inappropriate and lead to episodes of
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decompensation for which the recovery period may be several hours,” and, “[s]he continues . . .
to get triggered, become tearful and panicky several times a week.” AR 923-924. As such, the
ALJ’s reason is only applicable for limiting the weight given to Dr. Carter’s statements on
Plaintiff’s physical impairments, but this same reasoning does not extend to Dr. Carter’s
conclusions regarding Plaintiff’s psychological condition. Yet the ALJ improperly discounted
precisely those types of opinions.
Second, the ALJ noted that he believed Dr. Carter conducted little more than a records
review. Dr. Carter, however, did not merely engage in a records review. Dr. Carter conducted a
diagnostic interview with both Plaintiff and her husband. AR 919. Dr. Carter also administered
to Plaintiff the Millon Clinical Multiaxial Inventory-III test to produce a mental health profile.
AR 922. Moreover, the ALJ’s reasoning is inconsistent with him later giving “great weight” to
the opinions of the State agency psychological consultants, who never examined Plaintiff and
who conducted nothing more than a records review. Lester, 81 F.3d at 832 (holding that an ALJ
discounting an examining psychologist’s opinion because it was based on “limited observation”
of the claimant “would be a reason to give less weight to [the psychologist’s] opinion than to the
opinion of a treating physician, [however,] it is not a reason to give preference to the opinion of a
doctor who has never examined the claimant” (emphasis in original)).
Third, the ALJ also took into consideration that Dr. Carter’s report was generated to
assist Plaintiff in producing evidence for her disability hearing. He noted that although
Dr. Carter’s report is “certainly legitimate and deserves due consideration, the context in which it
was produced cannot be entirely ignored.” AR 34. As conceded by the Commissioner, this was
not a sufficient reason, standing alone, to reject Dr. Carter’s opinion. Reddick v. Chater, 157 F.3d
715, 726 (9th Cir. 1998) (stating “in the absence of other evidence to undermine the credibility of
PAGE 15 – OPINION AND ORDER
a medical report, the purpose for which the report was obtained does not provide a legitimate
basis for rejecting it”). As already discussed, the ALJ’s reasons for limiting the weight given to
Dr. Carter’s psychological assessment of Plaintiff’s impairments were not specific and
legitimate. Therefore, the fact that Dr. Carter’s report was obtained in anticipation of the
disability hearing is insufficient, without more, to discredit Dr. Carter’s report.5 As such, the ALJ
erred by improperly discounting the relevant opinions of Dr. Carter contained in her report.
Plaintiff argues that because the ALJ committed legal error, this Court should credit Dr. Carter’s
report as true and issue an immediate award of benefits. The applicability of the “credit-as-true”
doctrine is discussed below.
C. The Listings
Plaintiff asserts that the ALJ erred in finding that Plaintiff did not meet or medically
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listing”). Additionally, Plaintiff contends that the ALJ should have obtained in updated expert
medical report to help determine if her impairments in combination were equal to a Listing.
1. Meeting or Equaling a Listing
According to Plaintiff, had the ALJ accepted Dr. Carter’s report, he would have found
that Plaintiff meets the requirements of Listings 12.04-Affective Disorders and 12.06-Anxiety
5
The Commissioner argues that Dr. Carter’s findings were inconsistent with the
treatment record as a whole. The ALJ, however, did not invoke this as a reason to discount
Dr. Carter’s opinions. By contrast, in discussing the opinions of the State agency psychological
consultants, the ALJ stated that their findings were supported by the fact that Plaintiff “was now
able to leave her home, travel and attend group sessions,” and that the state agency consultants’
opinions “are consistent with the record as a whole.” AR 34. The Court may not invoke grounds
to uphold the decision of an ALJ that were not originally invoked by the ALJ. See Bray, 554
F.3d at 1226; Orn, 495 F.3d at 630; Pinto v. Massarani, 249 F.3d 840, 847 (9th Cir. 2001).
PAGE 16 – OPINION AND ORDER
Related Disorders. In evaluating the “B” criteria of Listings 12.04 and 12.06,6 the ALJ found that
Plaintiff has mild restrictions in her activities of daily living. AR 26. He further noted moderate
difficulties in her social functioning, as well as moderate restrictions with regard to
concentration, persistence, and pace. Id. The ALJ also found that Plaintiff has experienced no
episodes of decompensation of extended duration. Id.
The ALJ’s findings essentially adopt the findings from the Psychiatric Review Technique
Form (“PRTF”) completed by Dr. Joshua J. Boyd, a non-treating, non-examining State agency
consultant. AR 736-49. The ALJ gave Dr. Boyd’s opinion “great weight.” AR 34. The ALJ’s
findings also find some support in the medical records completed by Plaintiff’s treating
physicians and therapists. AR 28-35; See, e.g., AR 677 (Plaintiff swimming with mother and
friend, but relies on husband to do the shopping due to mild agoraphobia), AR 854-855 (Plaintiff
attending group therapy, walking dogs, and appears alert and well groomed). As Plaintiff notes,
however, there is also evidence in the record that Plaintiff had continued anxiety and panic
attacks and generally only left the house with supportive family members. Because Dr. Carter’s
opinions were not properly assessed in light of the record as a whole and ambiguities exist in the
record (as discussed further below), it is not appropriate for the Court to accept Dr. Carter’s
conclusion that Plaintiff has marked limitations and thus that the ALJ’s Listing analysis was in
error. Accordingly, the Commissioner should resolve this uncertainty on remand.
Plaintiff also claims that the ALJ failed to make specific findings regarding
6
Listings 12.04 and 12.06 share identical paragraph “B” criteria. 20 C.F.R. Pt. 404,
Subpt. P, App’x 1. In order to meet the “B” criteria, the claimant must demonstrate two of the
following: (1) marked restriction of activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence,
or pace; or (4) repeated episodes of decompensation, each of extended duration. Id. A claimant
may meet Listings 12.04 and 12.06 by satisfying the paragraph “A” criteria and either the
paragraph “B” or “C” criteria. Id. That Plaintiff meets the “A” criteria for both Listing 12.04
and 12.06 is undisputed.
PAGE 17 – OPINION AND ORDER
Listing 12.04’s paragraph “C” criteria.7 The ALJ considered this “C” criteria. The ALJ found
that none of the requirements were satisfied by Plaintiff’s impairments. AR 26. Similar to the
“B” criteria, Dr. Carter’s report, when given due consideration, may impact the “C” criteria
analysis. Therefore, the ALJ should also revisit this determination on remand.
In the alternative, Plaintiff argues that even if her mental impairments fail to meet the
criteria for Listings 12.04 and 12.06 individually, they, in combination with her fibromyalgia,
obesity, urinary incontinence, and other physical impairments should have been found equal in
severity to a Listing. See 20 C.F.R. §§ 404.1526, 416.926. The ALJ not only considered
Plaintiff’s impairments individually, but also in combination with one another, finding that the
impact of these additional impairments did not cause limitations that equal the criteria for any
listed impairment set forth in the regulations. Given that the additional impairments raised in
Plaintiff’s argument are physical in nature, Dr. Carter’s report will likely have no bearing on the
ALJ’s determination concerning medical equivalence in the further proceedings. The ALJ’s
conclusion was a rational reading of the evidence found in the record; as such, this Court must
uphold that determination. Burch, 400 F.3d at 679.
2. Updated Expert Medical Opinion
Finally, Plaintiff asserts that SSR 96-6p directs an ALJ “to obtain an expert opinion as to
medical equivalence when the symptoms, signs and laboratory findings reported in the case
record suggest that a judgment of equivalence may be reasonable.” ECF 17 at 16 (emphasis in
7
Under Listing 12.04, if a claimant meets both paragraph “A” and “C” criteria, it is
dispositive of a finding of disability. The Paragraph “C” criteria are: (1) repeated episodes of
decompensation, each of extended duration; (2) a residual disease process that has resulted in
such marginal adjustment that even a minimal increase in mental demands or change in
environment would be predicted to cause the individual to decompensate; or (3) current history
of 1 or more years’ inability to function outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
PAGE 18 – OPINION AND ORDER
original). Plaintiff charges the ALJ with legal error for failing adequately to evaluate the medical
equivalence issue, and for failing to obtain an updated expert medical opinion.
According to the SSR, “[t]he signature of a State agency medical or psychological
consultant on an . . . SSA-832-U5 or SSA-833-U5 (Cessation or Continuance of Disability or
Blindness) [form] ensures that consideration . . . has been given to the question of medical
equivalence,” and, “the Psychiatric Review Technique Form and various other documents on
which medical and psychological consultants may record their findings, may also ensure that this
opinion has been obtained . . . .” SSR 96-6p, available at 1996 WL 374180 (July 2, 1996). The
pertinent part of the next paragraph reads, “[w]hen an administrative law judge . . . finds that an
individual’s impairment(s) is not equivalent in severity to any listing, the requirement to receive
expert opinion evidence into the record may be satisfied by any of the foregoing documents
signed by a State agency medical or psychological consultant.” Id.
Plaintiff’s record contains two signed SSA-833-U5 (Cessation of Disability Transmittal)
forms. AR 106, 107. Additionally, as previously discussed, Dr. Boyd’s completed PRTF was
reviewed by the ALJ in making his determination. AR 736-749. These forms illustrate that,
consistent with the SSR and regulations, the ALJ adequately considered the question of medical
equivalence. SSR 96-6p; see also 20 C.F.R. §§ 404.1526, 416.926. Furthermore, SSR 96-6p
directs an ALJ to obtain an updated expert medical opinion when in “the opinion of the
administrative law judge . . . the symptoms, signs, and laboratory findings reported in the case
record suggest that a judgment of equivalence may be reasonable.” (emphasis added). It is a
reasonable inference that after the ALJ considered Plaintiff’s impairments in combination with
one another, the ALJ was not of the opinion that equivalence was reasonable. Therefore, it was
within the ALJ’s discretion not to obtain an updated expert medical opinion. Harris v.
PAGE 19 – OPINION AND ORDER
Colvin, 584 F. App’x 526, 528 (9th Cir. 2014), cert. denied, 135 S. Ct. 1856, 191 L. Ed. 2d 735
(2015).
D. Plaintiff’s Credibility
Plaintiff challenges the ALJ’s adverse credibility finding regarding Plaintiff’s symptom
testimony. Specifically, Plaintiff argues that the CPD-ALJ found Plaintiff credible, whereas the
most recent ALJ found her less than credible to the extent that “[t]he medical evidence does not
support the severity of the claimant’s alleged symptoms.” AR 29. According to Plaintiff, nothing
has changed with respect to Plaintiff’s testimony that warrants the current ALJ’s departure from
the credibility determination made by the CPD-ALJ. Furthermore, Plaintiff asserts the ALJ failed
to provide “clear and convincing” reasons for rejecting her testimony. Lester, 81 F.3d at 834.
1. Standards for Evaluating a Claimant’s Testimony
There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
“First, the ALJ must determine whether the claimant has presented objective medical evidence of
an underlying impairment ‘which could reasonably be expected to produce the pain or other
symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant
need not show that her impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could reasonably have caused some degree
of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
PAGE 20 – OPINION AND ORDER
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
Effective March 16, 2016, the Commissioner superseded SSR 96-7p governing the
assessment of a claimant’s “credibility” and replaced it with a new rule, SSR 16-3p. See SSR 163p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility,” clarifies
that “subjective symptom evaluation is not an examination of an individual’s character,” and
requires the ALJ to consider of all of the evidence in an individual’s record when evaluating the
intensity and persistence of symptoms. Id. at *1-2. The Commissioner recommends that the ALJ
examine “the entire case record, including the objective medical evidence; an individual’s
statements about the intensity, persistence, and limiting effects of symptoms; statements and
other information provided by medical sources and other persons; and any other relevant
evidence in the individual’s case record.” Id. at *4. The Commissioner recommends assessing:
(1) the claimant’s statements made to the Commissioner, medical providers, and others regarding
the claimant’s location, frequency and duration of symptoms, the impact of the symptoms on
daily living activities, factors that precipitate and aggravate symptoms, medications and
treatments used, and other methods used to alleviate symptoms; (2) medical source opinions,
statements, and medical reports regarding the claimant’s history, treatment, responses to
treatment, prior work record, efforts to work, daily activities, and other information concerning
the intensity, persistence, and limiting effects of an individual’s symptoms; and (3) non-medical
PAGE 21 – OPINION AND ORDER
source statements, considering how consistent those statements are with the claimant’s
statements about his or her symptoms and other evidence in the file. See id. at *6-7.8
The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons
for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may
not, however, make a negative credibility finding “solely because” the claimant’s symptom
testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d
at 883.
2. The ALJ’s Analysis
The CPD was issued on June 11, 2008, and the hearing conducted before the decision
currently on appeal occurred on November 20, 2013. Plaintiff argues that the CPD-ALJ found
Plaintiff credible because she “complied with medical advice, and there was no evidence that she
was malingering, and because she was motivated for treatment and complied with explicit
treatment goals”; and, because these reasons “have not been disturbed by anything in this
record,” the ALJ had no basis for finding Plaintiff less than credible. ECF 17 at 17-18.
Plaintiff’s argument misunderstands the ALJ’s findings. While Plaintiff’s willingness to
comply with the directions of her medical providers has remained constant, the ALJ did not
discount Plaintiff’s testimony for failing to follow prescribed medical treatment. The heart of the
8
The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making
an overarching credibility determination and instead must assess whether the claimant’s
subjective symptom statements are consistent with the record as a whole. See SSR 16-3p,
available at 2016 WL 1119029 (superseding SSR 96-7p). The ALJ’s December 2013 decision
was issued before SSR 16-3p became effective and there is not yet any binding authority
interpreting this new ruling, including whether it applies retroactively. Compare Ashlock v.
Colvin, 2016 WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to
an ALJ decision issued prior to the effective date), with Lockn’ood v. Colvin, 2016 WL 2622325,
*3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision).
Because the ALJ’s findings in regard to this issue pass muster irrespective of which standard
governs, the Court need not resolve this issue.
PAGE 22 – OPINION AND ORDER
ALJ’s determination, after reviewing hundreds of pages of additional records by Plaintiff’s
medical providers, is that the medical record as a whole does not support the limitations alleged
by Plaintiff. This is the ALJ’s role. See SSR 16-3p. The fact that, five years before the hearing on
Plaintiff’s purported medical improvement, the CPD-ALJ considered without even holding a
hearing that the medical evidence as whole supported Plaintiff’s alleged limitations is not
dispositive as to whether the record now supports the same finding.
In undertaking the two-step credibility analysis, the ALJ found that Plaintiff presented
objective medical evidence that could reasonably be expected to produce her alleged
symptoms—satisfying step one. In moving to step two, the ALJ found no evidence of
malingering; however, he found Plaintiff’s symptom testimony inconsistent with the medical
evidence and her activities of daily living. In doing so, the ALJ provided sufficiently specific,
clear, and convincing reasons for finding the Plaintiff’s symptom testimony less than credible.
a. Inconsistencies with the Medical Evidence
During the hearing, Plaintiff’s attorney began questioning Plaintiff in the present tense,
and the ALJ asked Plaintiff to limit her symptom testimony to the time period between the 2008
CPD and December 31, 2011—the date Plaintiff was last insured for disability benefit purposes.
AR 51, 57-58. In considering that testimony, the ALJ noted that Plaintiff “has not reported to her
treatment providers, symptoms to the level of severity as she now alleges.” AR 29. Specifically,
Plaintiff testified at the hearing that her impairments leave her in a state of constant anxiety, and
she is almost always weepy or crying. AR 70-71. The ALJ noted, however, that her medical
providers reported that her mood was largely stabilized with her current medications. AR 29-30,
672-73, 677-78. Plaintiff also reported being in a positive mood to her mental health providers
on most occasions. See, e.g., AR 698, 717, 721. She was also noted to be thinking clearly,
PAGE 23 – OPINION AND ORDER
appropriately dressed, and well groomed at her medical appointments, unlike at her appointments
during the time period adjudicated in the CPD. AR 687, 717.
The ALJ found that Plaintiff does have periods of increased symptoms, however, these
incidences were situational in nature and corresponded with stressful life events—the death of
her mother, undertaking a new therapy program that required reprocessing of past traumatic
events, her parolee stepson moving in, reapplying for disability benefits, and being disappointed
with the results of surgery performed to solve her urinary incontinence. AR 29-30, 765, 771, 894,
977, 979. Additionally, Plaintiff’s periods of increased symptoms have not required emergency
room treatment or psychiatric hospitalization, as they had in the past. AR 30.
Plaintiff also testified to having nightmare-induced panic attacks between once a week
and once every two weeks. AR 57-58. The ALJ noted that although Plaintiff reported panic
attacks to her medical providers, she did not report them with the frequency alleged at the
hearing. AR 29, 672, 683. For example, Plaintiff’s treatment records from February 2010 to
January 2012—the only available medical evidence in the record between the CPD and
Plaintiff’s date last insured—show that Plaintiff reported a total of three panic attacks over the
course of nearly two years. AR 672. Two of these attacks were reported on February 2, 2010,
which, based on the record, was seemingly Plaintiff’s first medical appointment since April 11,
2007. Thus, the first two reported panic attacks could have been relating back to an earlier time
period. Except for the third panic attack reported in December 2010, Plaintiff did not mention
any other panic episodes during her frequent contact with medical providers until after Plaintiff’s
disability benefits were terminated in January 2012. The ALJ correctly noted that the frequency
of panic attacks alleged by Plaintiff at the hearing did not correspond with the contemporaneous
reports she gave to her mental health providers before her date last insured.
PAGE 24 – OPINION AND ORDER
Additionally, Plaintiff alleged that she suffers from PTSD-related nightmares nearly
every night of the week. AR 59. The record shows, however, that Plaintiff did not report
experiencing nightmares to her medical providers during the time period between the CPD and
the expiration of Plaintiff’s disability insurance. To the contrary, the ALJ noted that Plaintiff
specifically denied having nightmares during a sleep-study she underwent in May 2011, which
Plaintiff reported was a normal and typical night’s sleep for her. AR 30, 689. In the same sleepstudy, however, Plaintiff did report that her sleep is disturbed approximately three nights a week
by heartburn—evidencing that she was capable of informing her health care providers of
incidences that affect her sleep. AR 689. Similar to Plaintiff’s panic attacks, she did not begin
reporting nightmares to her mental health providers until February 2012, after her disability
benefits ceased due to the Commissioner’s finding of medical improvement, and after her date
last insured. AR 854-55.
For the reasons discussed, the inconsistencies between Plaintiff’s symptom testimony and
her medical reports were sufficiently specific, clear, and convincing reasons for finding her
alleged limitations not supported by the record. Lingenfelter, 504 F.3d at 1036; McCawley v.
Astrue, 423 F. App’x 687, 689 (9th Cir. 2011).
b. Inconsistencies with Activities of Daily Living
The ALJ also found that Plaintiff’s described daily activities were “not limited to the
extent one would expect, given her complaints of disabling symptoms and limitations.” AR 32.
Daily activities can support the discounting of a claimant’s alleged limitations when the
claimant’s activities either contradict his or her other testimony or meet the threshold for
transferable work skills. See Molina v. Astrue, 614 F.3d 1104, 1112-13 (9th Cir. 2012); Orn, 495
F.3d at 639. In evaluating a claimant’s purported limitations, the ALJ “need not consider whether
a claimant’s daily activities are equivalent to full-time work; it is sufficient that the claimant’s
PAGE 25 – OPINION AND ORDER
activities ‘contradict claims of a totally debilitating impairment.’” Whittenberg v. Astrue, 2012
WL 3922151 at * 4 (D. Or. Aug. 20, 2012) (quoting Molina, 614 F.3d at 1113); see also Denton
v. Astrue, 2012 WL 4210508 at * 6 (D. Or. Sept. 19, 2012) (“While [claimant’s] activities of
daily living do not necessarily rise to the level of transferable work skills, they do contradict his
testimony regarding the severity of his limitations.”). A claimant, however, need not be utterly
incapacitated to receive disability benefits, and sporadic completion of minimal activities is
insufficient to reject testimony regarding limitations. Vertigan v. Halter, 260 F.3d 1044, 1050
(9th Cir. 2001); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the
level of activity to be inconsistent with the claimant’s claimed limitations to be relevant to his or
her credibility). Furthermore, the ALJ must make “specific findings relating to the daily
activities and their transferability to conclude that a claimant’s daily activities warrant an adverse
credibility determination.” Orn, 494 F.3d at 639.
Plaintiff testified that due to her mental impairments she is largely homebound.
AR 68-69. The ALJ, however, found that her reports of swimming at the YMCA with her latemother and friend; attending and actively participating in group therapy and bariatric sessions;
walking for exercise six to seven times per week; and taking her dogs on daily walks did not
amount to the degree of self-isolation alleged at the hearing. AR 32-33. These findings by the
ALJ are supported by substantial evidence in the record. See AR 672, 677, 681-82, 684, 686,
921.
The ALJ further noted that Plaintiff was taking her daughter out job hunting; arriving to
several of her medical appointments on her scooter; taking scooter rides for up to two hours;
caring for her garden; researching bariatrics on her computer; and going on a weekend trip to
Crater Lake. AR 32-33. Again, these findings are supported by substantial evidence in the
PAGE 26 – OPINION AND ORDER
record. See AR 683, 698, 717, 764, 774, 921. The ALJ also noted that in April 2013, Plaintiff
reported to Ms. Cusick that since her bariatric surgery “she has more energy than she knows
what to do with,” and “stays busy doing things all day.” AR 961.
The ALJ’s analysis, however, was not flawless. Namely, the ALJ found that in
January 2010, Plaintiff reported going to the grocery store and a movie theatre, which the ALJ
cited as an activity of daily living that contradicted Plaintiff’s testimony of disabling limitations.
AR 32, 672. The medical record cited to by the ALJ indicates that while Plaintiff did state that
she went to a grocery store and a movie theatre, she further reported that she experienced a panic
attack while at those places. AR 672. Thus, the ALJ’s reliance on these outings as a basis for
discounting Plaintiff’s testimony regarding anxiety in crowded places was misplaced. This error,
however, was harmless for two reasons. First, as discussed, the ALJ relied on other substantial
evidence in the record in determining that Plaintiff’s symptom testimony was not fully supported
in light of her reported activities of daily living. See Batson, 359 F.3d at 1193, 1196-97 (finding
error is harmless so long as there remains “substantial evidence supporting the ALJ’s
conclusions on . . . credibility” and the error “does not negate the validity of the ALJ’s ultimate
[credibility] conclusion”). Second, the error was immaterial to the ALJ’s ultimate determination
because he incorporated Plaintiff’s increased anxiety around groups of people into the RFC—as
evidenced by the ALJ’s modification limiting Plaintiff’s contact with the public to no more than
a very infrequent basis. See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991).
Thus, the ALJ provided two clear and convincing reasons for finding Plaintiff’s symptom
testimony not supported by the record. Accordingly, the Court must uphold the ALJ’s
determination.
PAGE 27 – OPINION AND ORDER
E. Medical Improvement
Plaintiff next argues that the ALJ’s determination that she medically improved as of
January 2012 was not substantiated by the record as a whole. Plaintiff argues that the ALJ
“cherry pick[ed]” isolated incidences of improved functioning to support a denial of benefits.
ECF 23 at 3. Plaintiff concedes that she has experienced some medical improvement since the
CPD. Plaintiff argues, however, that her anxiety and panic have not improved enough for her to
successfully return to work. In response, the Commissioner argues this Court should uphold the
ALJ’s finding of medical improvement because it is a rational interpretation of the evidence
supported by inferences reasonably drawn from the record. See Molina, 674 F.3d at 1111.
In order to find medical improvement has occurred, an ALJ must compare the claimant’s
current medical condition with that of her most recent favorable disability decision. As the Ninth
Circuit explained in a recent decision:
A Social Security disability benefits claimant is no longer entitled to benefits
when substantial evidence demonstrates (1) “there has been any medical
improvement in the [claimant’s] impairment” and (2) the claimant “is now able to
engage in substantial gainful activity.” 42 U.S.C. § 423(f)(1). To determine
whether there has been medical improvement, an administrative law judge (ALJ)
must “compare the current medical severity” of the claimant’s impairment to the
medical severity of the impairment “at the time of the most recent favorable
medical decision that [the claimant] w[as] disabled or continued to be disabled.”
20 C.F.R. § 404.1594(b)(7).
Attmore v. Colvin, 827 F.3d 872, 873 (9th Cir. 2016).
The ALJ noted that at the time of the CPD, Plaintiff met the requirements for
Listings 12.04 and 12.06. AR 26, 103-04. She was unable to leave her home, neglected her
personal hygiene, had no energy, and was severely depressed. AR 26, 102. Based on a fair
reading of the record as a whole, the ALJ found that, although Plaintiff still faces some
limitations, her impairments have improved enough to permit her to return to work.
PAGE 28 – OPINION AND ORDER
In deciding that medical improvement occurred, the ALJ noted how Plaintiff’s anxiety
and depression have steadily improved following the CPD. Plaintiff’s treating physicians have
largely reported that her mood has stabilized over the years since the CPD, and her mental
impairments have responded well to medication and therapy. AR 687, 721, 822, 857-58. As
discussed earlier, Plaintiff has also been able to leave her home to attend her appointments,
including group therapy and bariatric support group sessions; take her daughter job hunting;
attend open swim at the YMCA; go on vacation; and take her scooter out for extended rides—
amongst other things. AR 683, 698, 717, 764, 774, 921. Furthermore, at the time of her CPD,
Plaintiff was having difficulties showering and keeping up with her personal hygiene. AR 102.
Since that time, Plaintiff’s treating sources have consistently noted that she has arrived to her
appointments appropriately dressed and well groomed. AR 673, 687, 854, 883.
The ALJ also detailed the everyday difficulties Plaintiff continues to face despite her
noticeable improvements. For example, the ALJ took into consideration that Plaintiff reported
difficulty leaving the house, but further noted that Plaintiff stated that after she does leave her
home she feels better. AR 33, 677. As noted, the ALJ recognized that Plaintiff has experienced
periods of increased symptoms when confronted with atypical, stressful life events, but she no
longer required psychiatric hospitalization or emergency room treatment, as she had in the past.
AR 30. Instead, she was able to remain stable with changes in medication and the support of her
medical providers and family. AR 771, 815. Additionally, Plaintiff also reported—and the record
confirms—that she has not experienced any manic episodes in quite some time. AR 919.
Although this demonstrates medical improvement, Plaintiff asserts that it does not
demonstrate improvement to the point that Plaintiff can return to work. Plaintiff argues that
contrary to the ALJ’s interpretation, the record as a whole indicates that, despite fashioning a
PAGE 29 – OPINION AND ORDER
safe, routine home environment surrounded by supportive family members, Plaintiff still lives in
a constant state of anxiety that results in debilitating symptoms whenever her “boat is rocked.”
ECF 17 at 18. Essentially, Plaintiff is arguing that the Court should adopt Plaintiff’s
interpretation of the medical record. At most, Plaintiff offers a rational interpretation of the
evidence; however, the ALJ’s determination is also a rational interpretation based on substantial
evidence found in the record. As such, this Court must uphold the ALJ’s finding of medical
improvement related to the ability to work. See Batson 359 F.3d at 1193 (stating “if evidence
exists to support more than one rational interpretation, we must defer to the Commissioner’s
decision”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (same);
Andrews, 53 F.3d at 1039-40 (same). The Court notes, however, that on remand, proper
evaluation of Dr. Carter’s report could alter the ALJ’s original determination of medical
improvement.
F. Age and Time Out of the Workforce
Plaintiff raises for the first time in her reply brief that contrary to the regulations, the ALJ
failed to take into account her age and time out of the workforce when determining her RFC.
This argument was not, however, properly presented because all issues must be raised in the
initial brief. Accordingly, it will not be considered. See United States v. Romm, 455 F.3d 990,
997 (9th Cir. 2006) (“[A]rguments not raised by a party in its opening brief are deemed
waived.”); Cedano–Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003) (“[W]e decline to
consider new issues raised for the first time in a reply brief.”).
G. The Vocational Hypothetical
Finally, Plaintiff argues the ALJ erred at step eight of the sequential analysis by
presenting the VE with an inadequate hypothetical that did not take into account all of her
limitations. An ALJ may rely on the testimony of a VE to determine whether a claimant retains
PAGE 30 – OPINION AND ORDER
the ability to perform work. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “[I]n
hypotheticals posed to a vocational expert, the ALJ must only include those limitations supported
by substantial evidence.” Robbins, 466 F.3d at 886. “If the record does not support the
assumptions in the hypothetical, the vocational expert’s opinion has no evidentiary value.” Lewis
v. Apfel, 236 F.3d 503, 518 (9th Cir. 2001).
In posing his vocational hypothetical to the VE, the ALJ described an individual who
is 49 years old; who has at least a high school education; who has past work experience as a
pharmacy technician; and who can perform light work, as defined in 20 C.F.R. § 404.1567(b),
including the additional limitations found by the ALJ. In answering the question, the VE gave
three examples of jobs existing in the national economy that could be performed by this
individual: (1) clerical addresser (DOT 209.587-010); (2) price coding affixer (DOT 920.587014); and (3) hand bander (DOT 902.687-026).
The ALJ’s hypothetical included all of the limitations he found supported by substantial
evidence found in the record. There was no error committed in this regard. Given the uncertainty
of how Dr. Carter’s report will be weighed in the proceedings on remand, however, the ALJ’s
original RFC finding may change. If reconsideration of Dr. Carter’s report results in a different
RFC determination—and the analysis continues to step eight—the taking of new testimony from
a VE on the matter will be necessary.
H. Remand
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
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utility of further proceedings. 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. Id. at 1100. A
court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence
that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act.
Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The United States Court of Appeals for
the Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
PAGE 32 – OPINION AND ORDER
appropriate remedy and a reviewing court is not required to credit
claimants’ allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
As discussed above, the ALJ failed to provide legally sufficient reasons for discounting
the psychological evaluations contained in Dr. Carter’s report. The Court, however, finds that
there are remaining conflicts and ambiguities that need be resolved. Specifically, how
Dr. Carter’s opinions should be weighed against the other medical evidence in the record and the
record as a whole needs to be considered. Thus, remanding for further proceedings consistent
with this opinion is more appropriate than an award of immediate benefits.
CONCLUSION
Accordingly, The Commissioner’s decision is REVERSED and REMANDED, pursuant
to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this 30th day of November, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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