Warner v. Commissioner Social Security Administration
OPINION AND ORDER. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and payment of benefits. Signed on 5/19/2017 by Judge Anna J. Brown. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALICIA R. WARNER,
OPINION AND ORDER
NANCY A. BERRYHILL,1
Acting Commissioner, Social
ROBERT A. BARON
Harder Wells Baron & Manning, PC
474 Willamette Street
Eugene, OR 97401
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
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy
A. Berryhill, who became Acting Commissioner of the Social
Security Administration on January 23, 2017, is automatically
substituted in place of Carolyn W. Colvin.
1 - OPINION AND ORDER
Regional Chief Counsel
ERIN F. HIGHLAND
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
Plaintiff Alicia R. Warner seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff’s application for
Supplemental Security Income (SSI) under Title XVI of the Social
This Court has jurisdiction to review the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter pursuant to sentence
four of 42 U.S.C. § 405(g) for the immediate calculation and
payment of benefits.
Plaintiff filed an application for SSI on January 27, 2012,
and alleged a disability onset date of January 1, 1995.
Her application was denied initially and on
Citations to the official transcript of record filed by
the Commissioner on August 11, 2016, are referred to as “Tr.”
2 - OPINION AND ORDER
An Administrative Law Judge (ALJ) held a
hearing on April 30, 2014.
At the hearing Plaintiff and
a vocational expert (VE) testified.
Plaintiff was represented by
On June 4, 2014, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
On December 23, 2015, that decision
became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review.
Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
Plaintiff was born on October 16, 1976.
was 37 years old at the time of the hearing.
Tr. 60, 312, 314.
Plaintiff has a high-school diploma with some college education.
Tr. 44, 179.
Plaintiff does not have any past relevant work
Plaintiff alleges disability due to fibromyalgia, bipolar
disorder, post-traumatic stress disorder, “[m]ild mental
retardation,” Asperger syndrome, anxiety and panic disorders,
“chronic pain,” “chronic fatigue,” and scoliosis.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
3 - OPINION AND ORDER
See Tr. 23-28.
The initial burden of proof rests on the claimant to
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden a claimant must demonstrate her
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”
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).
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
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]
4 - OPINION AND ORDER
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
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.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
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
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
20 C.F.R. § 416.920(a)(4)(I).
See also Keyser v.
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
5 - OPINION AND ORDER
impairments or combination of impairments.
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.
See also Keyser, 648 F.3d at 724.
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
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 her limitations.
See also Social Security Ruling (SSR) 96-8p.
‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”
SSR 96-8p, at *1.
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
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work she has done in the past.
20 C.F.R. § 416.920(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.
20 C.F.R. § 416.920(a)(4)(v).
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.
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,
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 416.920(g)(1).
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since January 27, 2012, Plaintiff’s
At Step Two the ALJ found Plaintiff has the severe
impairments of major depressive disorder, post-traumatic stress
disorder, panic disorder, generalized anxiety disorder,
attention-deficit hyperactivity disorder (ADHD), Asperger’s
disorder, bipolar disorder, lumbago, and bilateral knee
7 - OPINION AND ORDER
At Step Three the ALJ concluded Plaintiff’s medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
The ALJ found Plaintiff has the RFC to perform medium work.
The ALJ found Plaintiff is able to lift 50 pounds occasionally
and 25 pounds frequently; to stand or to walk for approximately
six hours in an eight-hour workday; to perform “isolated work”
that does not have any public contact, has only “incidental”
contact with coworkers, does not involve “group tasks,” and
involves only occasional supervisor contact; and to perform a
“low-stress job” that has only “occasional changes” in the work
setting and work duties, involves only simple work-related
decision-making, and does not include any production-line pace
The ALJ also stated Plaintiff should receive
“verbal, rather than written instructions” and should have her
supervisor “check in at the beginning of each shift to explain
work assignments and answer questions.”
At Step Four the ALJ concluded Plaintiff does not have any
past relevant work.
At Step Five, however, the ALJ found Plaintiff is capable of
performing other jobs that exist in the national economy such as
a “sweeper cleaner, industrial” and “mail clerk.”
8 - OPINION AND ORDER
Accordingly, the ALJ found Plaintiff is not disabled.
Plaintiff contends the ALJ erred when she (1) discredited
Plaintiff’s testimony and (2) improperly discredited the opinions
of Wayne Taubenfield, Ph.D., an examining psychologist, and
Maggie Hadley, QMHP, Plaintiff’s treating therapist.
As noted, Plaintiff contends the ALJ erred when she
discredited Plaintiff’s testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cotton, 799 F.2d 1403, 1407 (9th
See also Spelatz v. Astrue, 321 F. App’x 689, 692
(9th Cir. 2009).
The claimant, however, need not produce
objective medical evidence of the actual symptoms or their
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
9 - OPINION AND ORDER
claimant’s pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).
General assertions that the claimant’s
testimony is not credible are insufficient.
The ALJ must
identify “what testimony is not credible and what evidence
undermines the claimant’s complaints.”
Id. (quoting Lester,
81 F.3d at 834).
At the April 30, 2014, hearing Plaintiff testified she did
not believe she could work because she would “get distracted very
easily and would not be able to stay focused on [her] task.”
Aside from her attention and concentration problems,
Plaintiff stated she does not have any other problems that would
preclude simple work.
Plaintiff, however, also
testified she suffers from anxiety and depression, but those
conditions remain under control as long as she stays home and
takes her medication.
Plaintiff stated, however, she
suffers from panic attacks when she leaves her home.
Plaintiff also testified she gets headaches approximately once
per week that last one day and cause her to have to stay in a
Plaintiff testified she typically goes to sleep at
approximately 5:00 p.m. and sleeps for 10-12 hours.
Plaintiff stated her hobbies include knitting, “coloring,”
10 - OPINION AND ORDER
playing video games, and cooking.
In her Adult Function Report dated March 21, 2012, Plaintiff
reported pain from fibromyalgia limits her abilities to sit,
stand, walk, lift, or carry; her ADHD, bipolar disorder, and
Asperger disorder limit her ability to “concentrate and interact
with others”; and her fatigue limits her abilities to do physical
activity, interact socially, remember, and maintain
Plaintiff reported she occasionally
suffers from dizziness that prevents her from taking a shower,
and on some days her fibromyalgia pain prevents her from brushing
Plaintiff indicated she primarily travels by
walking, getting rides from friends or family members, or riding
a bicycle, but she does not drive for “fear of getting lost.”
Plaintiff stated she goes to the library, grocery
store, and medical appointments on a regular basis.
Plaintiff reported she does not have difficulty getting
along with others, but she, nonetheless, avoids social
Plaintiff indicated her conditions
affect her abilities to lift, squat, bend, stand, reach, walk,
sit, kneel, climb stairs, remember, complete tasks, concentrate,
understand, follow instructions, and use her hands.
Plaintiff reported she could only sit for five minutes at a time
and walk or stand for 10 minutes at a time.
stated she can only pay attention for one-to-five minutes at a
11 - OPINION AND ORDER
time and even though she does not follow spoken instructions well
due to “memory issues,” she follows written instructions well as
long as she does not “lose [her] place.”
stated these limitations began in her childhood.
Tr. 190, 193.
The ALJ discredited Plaintiff’s testimony on the grounds
that it was inconsistent with the medical record and her
activities of daily living and the record contains evidence that
Plaintiff sought medical treatment for the secondary-gain purpose
of obtaining disability benefits.
The ALJ incorrectly found “evidence from vocational
rehabilitation shows no significant barrier to working other than
having a loud tone of voice.”
rehabilitation record was closed in 2005 because Plaintiff’s
disabilities were assessed to be “too severe,” and vocational
rehabilitation records indicated Plaintiff showed deficits in
stamina and her abilities to stay on task and to maintain
motivation that are consistent with Plaintiff’s testimony.
Moreover, the medical record as a whole reveals
Plaintiff was repeatedly assessed to have limitations in
concentration and attention consistent with Plaintiff’s
See, e.g., Tr. 272 (although some testing indicates
Plaintiff had only “mild impairment in attention and
concentration,” other testing indicates “serious impairment”);
Tr. 295 (testing indicates Plaintiff has attention and
12 - OPINION AND ORDER
concentration difficulties that ranges from “the low end of the
average range” to “very strongly suggestive of a clinical
attention problem”); Tr. 475 (Plaintiff has “poor concentration”
and Plaintiff “learns more slowly, has problems organizing and
completing tasks and has troubles concentrating”); Tr. 648-49
Moreover, the ALJ incorrectly found Plaintiff’s repeated
reports to mental-health treatment providers that her anxiety and
depression medication was working were inconsistent with her
As noted, however, Plaintiff stated her anxiety and
depression were stable as long as she took her medication and
maintained her daily routine.
As noted, the ALJ also discredited Plaintiff’s testimony
because it was inconsistent with her reported activities of daily
living, including Plaintiff’s abilities to cook, to clean her
house, to care for her cat, to walk, and to ride her bicycle.
These activities, however, do not directly contradict any
significant portion of Plaintiff’s testimony and are not so
extensive that they suggest Plaintiff is, in fact, capable of
See Molina, 674 F.3d at 1112.
Finally, although there is modest evidence in the record
from which the ALJ could infer Plaintiff sought mental-health
treatment in part due to her desire to obtain disability benefits
(Tr. 408), such references in the record are sparse and do not
constitute a clear and convincing reason for rejecting
13 - OPINION AND ORDER
Accordingly, on this record the Court concludes the ALJ
erred when she discredited Plaintiff’s testimony because she did
not provide legally sufficient reasons for doing so.
ALJ’s Consideration of the Medical Testimony
Plaintiff contends the ALJ erred when she discredited the
opinions of Dr. Taubenfield, an examining psychologist, and
QMHP Hadley, Plaintiff’s treating therapist.
Dr. Taubenfield’s Opinion
An ALJ may reject an examining or treating physician’s
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.
Taylor v. Comm'r of
Soc. Sec., 659 F.3d 1228, 1232 (9th Cir. 2011).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
Turner v. Comm'r of Soc. Sec., 613 F.3d 821, 830-
31 (9th Cir. 2010)(quoting Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1995)).
The opinion of a treating physician is “given
greater weight than the opinions of other physicians.”
Astrue, 471 F. App’x 674, 676 (9th Cir. 2012)(quoting Smolen v.
Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
14 - OPINION AND ORDER
treats the claimant.
Lester, 81 F.3d at 830.
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
See also Garrison
“The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
at 1233 (quoting Lester, 81 F.3d at 831).
Taylor, 659 F.3d
When a nonexamining
physician’s opinion contradicts an examining physician’s opinion
and the ALJ gives greater weight to the nonexamining physician’s
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008).
Dr. Taubenfield conducted an extensive neuropsychological
examination of Plaintiff on September 27, 2013.
After that examination, Dr. Taubenfield assessed Plaintiff would
have “[l]imited task sequence recall ability,” “[s]ignificantly
reduced work speed,” a possible inability to process complex
information, insufficient “emotional stamina to perform essential
functions of job,” and a possible inability “to sustain attention
sufficient to perform essential functions of job.”
The ALJ gave Dr. Taubenfield’s opinion “little weight”
because the ALJ found Dr. Taubenfield’s conclusions were
inconsistent with his findings during testing, and his findings
related to Plaintiff’s social limitations were inconsistent with
15 - OPINION AND ORDER
the record as a whole, including Plaintiff’s testimony and the
The ALJ, however, was incorrect that Dr. Taubenfield’s
conclusions were inconsistent with his testing.
throughout the testing Dr. Taubenfield noted difficulties with
Plaintiff’s concentration, attention, and distractibility.
Tr. 472, 474-76.
Moreover, Dr. Taubenfield’s testing indicated
significant limitations in Plaintiff’s emotional and social
As to the ALJ’s second criticism of Dr. Taubenfield’s
opinion, the ALJ was also incorrect when she found the record did
not demonstrate Plaintiff has emotional or social limitations.
See, e.g., Tr. 193 (Plaintiff reports she does not have a problem
getting along with others, but she avoids social interaction);
Tr. 264 (Plaintiff found to be “very socially avoidant and
Moreover, the record is replete with Plaintiff
seeking counseling to address her social and emotional
Tr. 316-429, 491-589.
Accordingly, on this record the Court concludes the ALJ
erred when he discredited the opinion of Dr. Taubenfield because
she failed to provide legally sufficient reasons for doing so.
QMHP Hadley’s Opinion
Plaintiff next contends the ALJ erred when she discredited
the opinion of QMHP Hadley, Plaintiff’s treating therapist.
16 - OPINION AND ORDER
Under the regulations in place at the time that Plaintiff
filed her disability applications and at the time when the
Commissioner rendered her final decision, the Social Security
Administration regulations separated medial opinions into two
those from “acceptable medical sources” and those from
See Molina, 674 F.3d at 1111.
physicians and certain other qualified specialists” such as
licensed or certified psychologists, licensed podiatrists, and
qualified speech-language pathologists are considered “acceptable
In general “[i]n order to reject the
testimony of a medically acceptable treating source, the ALJ must
provide specific, legitimate reasons based on substantial
evidence in the record.”
On the other hand the ALJ may
“discount testimony from these ‘other sources’ if the ALJ ‘gives
reasons germane to each witness for doing so.’”
Turner v. Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 2010)).
The parties agree QMHP Hadley, a qualified mental-health
provider, is an “other source,” and, therefore, to discredit her
testimony the ALJ was required to provide reasons germane to her
QMHP Hadley’s opinion was brief and simply stated she
concurred with Dr. Taubenfield’s assessment and believed
Plaintiff would be unable to maintain a regular work schedule for
more than four days per month.
17 - OPINION AND ORDER
The ALJ gave “little weight” to QMHP Hadley’s opinion
because it was presented as a check-the-box form without any
explanation for the underlying opinion and QMHP Hadley’s
conclusions were inconsistent with her treatment records and Dr.
The ALJ was correct that QMHP Hadley’s opinion is of little
independent value because it is a very brief, check-the-box form
without any underlying explanation.
That is a germane reason to
discredit QMHP Hadley’s opinion.
Accordingly, on this record the Court concludes the ALJ did
not err when she discredited QMHP Hadley’s opinion because the
ALJ provided legally sufficient reasons for doing so.
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).
issue turns on the 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.
Strauss v. Comm’r, 635
F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)).
The court may not award
benefits punitively and must conduct a “credit-as-true” analysis
18 - OPINION AND ORDER
to determine whether a claimant is disabled under the Act.
Under the “credit-as-true” doctrine, evidence should be
credited and an immediate award of benefits directed when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are not
any outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to
find the claimant disabled if such evidence were
When the reviewing court finds the elements of the “credit-
as-true” rule have been satisfied, however, the court may only
remand for further proceedings if “an evaluation of the record as
a whole creates serious doubt that the claimant is, in fact,
Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir.
As noted, the ALJ provided legally insufficient reasons for
rejecting Plaintiff’s testimony as well as the opinion of
The Court concludes there are not any
outstanding issues that must resolved before a determination of
disability can be made and it is clear from the record that the
ALJ would be required to find Plaintiff disabled if Plaintiff’s
testimony and the opinion of Dr. Taubenfield were credited.
Strauss, 635 F.3d at 1138.
Moreover, after a review of the
record as a whole, the Court does not find any basis to have
“serious doubt that the claimant is, in fact, disabled.”
19 - OPINION AND ORDER
Garrison, 759 F.3d at 1021.
Accordingly, the Court credits the
testimony of Plaintiff and Dr. Taubenfield as true and,
therefore, remands this matter to the Commissioner for an
immediate calculation of benefits.
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for the immediate calculation and payment of
IT IS SO ORDERED.
DATED this 19th day of May, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
20 - OPINION AND ORDER
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