Walker v. Commissioner Social Security Administration

Filing 16

Order. The Commissioners decision REVERSED, and REMANDED for further proceedings consistent with this opinion. Signed on 9/30/2017 by Judge Ann L. Aiken. (rdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JO LYNN WALKER,

Case No. 6: l 6-cv-00995-AA
OPINION AND ORDER

Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

AIKEN, District Judge:
Plaintiff, Jo Lynn Walker, brings this action pursuant to the Social Security Act ("Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"). The Commissioner denied plaintiff's application for Supplemental
Security Income ("SSI") under Title XVI of the Act.

For the reasons set forth below, the

Commissioner's decision is affirmed in part, reversed in part, and remanded for further
proceedings.
PAGE 1 - OPINION AND ORDER

BACKGROUND

On June 27, 2011, plaintiff, Jo Lynn Walker, filed for an application for SSI, alleging
disability as of March 4, 1993 based on a number of conditions including fibromyalgia, carpal
tunnel syndrome, arthritis, speech problems, bone spurs, past seizures, tendonitis, bursitis,
Reynaud's of the right hand, anxiety and back problems. Tr. 234-40, 256, 264. Her application
was denied initially and again upon reconsideration. Tr. 116-23, 127-28, 133-35. Plaintiff then
requested a hearing before an Administrative Law Judge ("ALJ").

A hearing was held on

February 26, 2015. Tr. 31-67. The ALJ ordered a consultative physical examination and held a
supplemental hearing on August 28, 2015. Tr. 53, 68-92. On September 3, 2015, the ALJ issued
a decision denying Plaintiffs claim for benefits. Tr. 13-30. The Appeals Council denied review
on March 25, 2016. Tr. 1-7, 9-12. Accordingly, the ALJ's decision became the final decision of
the agency from which plaintiff now seeks review.

Plaintiff subsequently filed the present

complaint in this Court. (doc. 1)
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision so long as 1) it is based on
proper legal standards and 2) its findings are supported by substantial evidence. 42 U.S.C. §
405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). The district court reviews the
record as a whole, and must weigh both evidence that supports and evidence that detracts from
the Commissioner's conclusion.

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If

evidence presents the possibility for multiple interpretations and the Commissioner's decision is
rational, the decision must be affirmed because "the court may not substitute its judgment for
that of the Commissioner." Edlundv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

/II

PAGE 2 - OPINION AND ORDER

COMMISSIONER'S DECISION
The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, plaintiff must demonstrate an

"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4).
At step one, the ALJ found that plaintiff did not engage in substantial gainful activity since June
27, 2011, her application date. Tr. 18; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ
found that plaintiff had the following severe impairments: fibromyalgia; lumbar spine
degenerative disk disease; lumbosacral neuritis; facet anthropathy; asthma; adjustment disorder;
depressive disorder, NOS; anxiety disorder, NOS; PTSD; bipolar disorder; pain disorder; and
borderline personality disorder. Id.; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step three, the ALJ
found that plaintiffs impainnents, whether considered singly or combination, did not meet or
equal one of the listed impairments that the Commissioner acknowledges are so severe as to
preclude substantial gainful activity. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
The ALJ found plaintiff had the residual functional capacity ("RFC") to perform light
work as defined in 20 CFR § 404.1567(b), with the following limitations: no more than standing
and/or walking four hours out of an eight-hour work day, but no more than one hour at a time; no
more than occasionally climbing ramps or stairs, stooping, lmeeling, crouching, or crawling;
never climbing ladders, ropes or scaffolds; no more than frequent bilateral reaching, handling,
fingering, feeling, pushing, pulling, or bilateral foot control operation; must avoid concentrated

PAGE 3 - OPINION AND ORDER

exposure to fumes, odors, dusts, gases, and poorly ventilated areas; simple instructions; no more
than occasional interaction with coworkers and supervisors. Tr. 20; 20 C.F.R. §§ 404.1520(e) ..
Tr. 21. At step four, the ALJ found that plaintiff has no past relevant, opining that while the
record shows some earnings in the past 15 years, the claimant did not perform such work at
substantial gainful activity levels. Tr. 24; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f).
At step five, the ALJ found plaintiff could perform several jobs existing in significant
numbers in the national economy. Tr. 24-25; 20 C.F.R. §§ 404.1520(a)(4)(v), (g). The ALJ
based this decision on plaintiff's age, education, work experience, and RFC, and determined,
pursuant to the vocation expert testimony, that plaintiff could have performed the requirements
of occupations such as the following: addresser, polisher, and stuffer. Tr. 26. Accordingly, the
ALJ found plaintiff not disabled and denied her application for benefits.

DISCUSSION
Plaintiff alleges that the ALJ erred by (1) improperly rejecting medical opinion evidence,
namely the opinions of and (2) failing to provide clear and convincing reasons supported by
substantial evidence to discredit Plaintiff's symptom testimony. I address each argument in turn.
I.

Medical Opinion Evidence
Plaintiff argues that that the ALJ erred in discounting the treating and examining source

opinions from Julie Hargraves, LCSW; Hugh Henderson, MD; Anthony Glassman, MD.

A.

Dr. Glassman 's Limitation Assessment

In May 2015, plaintiff was referred by Disability Determination Services to Dr. Anthony
Glassman, for a comprehensive physical examination.

Following this examination, Dr.

Glassman assessed a RFC to lift/carry twenty pounds occasionally and ten pounds frequently;
stand/walk for four hours total in an eight-hour workday and one hour each without rest; reach,

PAGE 4-0PINION AND ORDER

handle, finder feel, push, and pull occasionally; operate foot control frequently; stoop, kneel,
crouch, crawl, and climb stairs and ramps occasionally; operate foot controls frequently; stoop
kneel, crouch, crawl, and climb stairs and ramps occasionally; never balance or climb ladders or
scaffolds; operate a motor vehicle frequently, with frequent exposure to humidity, wetness, dust,
odors, fumes, pulmonary irritant, and extreme heat, occasional exposure to unprotected heights
and moving mechanical parts, and no exposure to cold or vibrations. The ALJ rejected Dr.
Glassman's assessed manipulative and balance limitation because the former was based entirely
on the plaintiffs subjective complaints and reported history of single seizure. The ALJ found
that these limitations were not supported by Dr. Glassman's own examination and the medical
record as a whole. However, the ALJ gave great weight to the remainder of Dr. Glassman's
function assessment, adopting it into the RFC.
Even if contradicted by another doctor, a treating or examining physician's opinion may
only be rejected with specific and legitimate reasons supported by substantial evidence.
Garrision v. Colvin, 759 F. 3d 995, 1012 (9th Cir. 2014.) Plaintiff avers that the ALJ erred in

discounting Dr. Glassman's assessed manipulative and balance limitations because his
examination supported the limitations.
I find that the ALJ reasonably rejected Dr. Glassman's manipulative and balance
limitations as unsupported by the record evidence.

A physician's opinion of the level of

impairment may be rejected because it is umeasonable in light of other evidence in the record.
Morgan v. Commissioner, 169 F. 3d 595, 602 (9th Cir. 1999). Here, the ALJ provided sufficient

support for her conclusion by noting that the rejected limitations were based on plaintiffs
subjective complaints which were not supported by the medical record. Even Dr. Glassman
noted that his assigned limitations in the RFC were based upon plaintiffs "subjective complaints

PAGE 5 - OPINION AND ORDER

outweighing objective findings."

Tr. 624.

Plaintiff points to her apparent decreased gnp

strength noted during the examination as justifying the manipulative limitation. However, all
other findings relating to this limitation were normal, and defendant accurately points out that the
discussion of carpal tunnel syndrome by Dr. Glassman was based solely on plaintiffs subjective
complaints. Regarding the balance limitation, the ALJ properly noted that the only support it
was plaintiffs one self-reported stroke in 1996. Indeed no other findings indicate less than
normal functioning concerning balance.
Having reviewed the record, I find that the ALJ provided specific and legitimate reasons
sufficient to reject Dr. Glassman's opinion regard the balance and manipulative limitation.

B.

Ms. Hargraves and Dr. Henderson's MFRC Report

Plaintiffs first argues the ALJ failed to provide legally sufficient bases supported by
substantial evidence to discount the March 2015 Medical Source Opinion which contained a
Mental Residual Functional Capacity ("MRFC") Report. The MRFC is a check the box form
which indicated that marked limitations "preclude[] the ability to perform the designated activity
on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent work
schedule." Tr. 614. The report was signed by plaintiffs social worker, Julie Hargraves, LCSW,
and treating psychologist Hugh Henderson, MD of Cow Creek Health and Wellness Center. 1
Ms. Hargraves and Dr. Henderson assessed marked limitations in a number of areas,
including, in plaintiffs ability to maintain attention and concentration for extended periods;
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; sustain an ordinary routine without special supervision; work in
coordination with or proximity to others without being distracted by them; complete a normal
1

Plaintiff began treatment there in July 2012, and was assessed with diagnoses of PTSD,
bipolar disorder, alcohol abuse in full sustained remission, and borderline personality disorder.
PAGE 6- OPINION AND ORDER

workday and workweek without inte1ruptions from psychologically based symptoms and
perform at a consistent pace without an unreasonable number and length of rest periods; accept
instructions and respond appropriately to criticism from supervisors; get along with co-workers
or peers without distracting them or exhibiting behavioral extremes; maintain appropriate
behavior and adhere to basic standards of neatness and cleanliness. The report contained a
notation that "Ms. Walker will need more stabilization of medications & psychotherapy. She has
been decompensating between sessions." Tr. 617.
The ALJ rejected the claims contained in the medical source opinion, because they were
from Ms. Hargraves, and social workers are not considered an acceptable medical source.
Moreover, the ALJ held that the marked limitations noted in the MRFC are wholly inconsistent
with plaintiffs admitted normal activities of daily living, as well as her progress notes indicating
her mental symptoms are stable with medications.
Plaintiff argues that the ALJ ened because the form was authored by both Ms. Hargraves
and plaintiffs treating psychiatrist, Dr. Henderson, and, as such, was due great, if not
controlling, weight. Plaintiff also disputes the ALJ' s finding that the marked limitations in her
ability to maintain attention and concentration for extended periods of time are inconsistent with
plaintiffs reported normal activities of daily living, which include, house hold chores, driving a
car, and shopping. Dr. Henderson and Ms. Hargraves subsequently noted in a October 30, 2015,
post-decision letter,
[p]erforming activities on a self-paced basis, followed by periods of rest, and
intermittently depending on medical impairments may have been characterized as
normal. However, Ms. Walker's activities have not been consistent with a capacity to
sustain work activity on a set schedule. Her ability to sustain activity would be
compromised further by a full-time work schedule and production demands, regardless of
the job.
Tr. 748.
PAGE 7 - OPINION AND ORDER

Plaintiff also contests the ALJ statement that her mental symptoms are well controlled when she
takes her medications. Plaintiff argues that those symptoms wax and wane, as is evidence by
with GAF scores ranging from 31 to 52 throughout her alleged period of disability. 2 Further,
plaintiff offers the statement of Ms. Hargraves and Dr. Henderson where they opine that "[b ]eing
stable on medications pertains to maintaining, no worsening. It is not evidence of capacity to
sustain full time work activity, remain on task for extended periods of time, or consistently
accept supervision." Tr. 748.
Defendant argues that while a treating physician's opinion is generally given the most
weight, and may be controlling if it is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
claimants case record.
In response, defendant discusses the difference between medical sources and what weight
each should be afforded. Defendant is correct that a social work does not automatically express
opinions on behalf of a supervising treating physician, and that a social workers sole opinion is
no considered an acceptable medical source. However, that does not address the fact that the
determinations contained in MFRC and medical source opinion were coauthored by Dr.
2

A GAF score is rough estimate of an individual psychological, social, and occupational
functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d
1161, 1164 n.2 (9th Cir. 1998). A GAF score of 31 to 40 indicates "[sJome impairment in reality
testing or communication (e.g., speech is at time illogical, obscure, or irrelevant) OR major
impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and is failing at school)." American
Psychiatric Association, Diagnostic and Statistical Manual ofMental Disorders 34 (4th ed.
2000). A GAF score of 41 to 50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of51to60 indicates
"[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers.)" Id.
PAGE 8- OPINION AND ORDER

Henderson. Despite defendant's claim to the contrary, there is nothing vague about the post
decision letter where Dr. Henderson and Ms. Hargrave state that the medical source statement
were coauthored by both of them. While it is true the Dr. Henderson did not sign one part of the
medical source opinion at the time, he did sign the MRFC and restated that its opinions were his
own in the post-decision letter.
Defendant also argues that MRFC is still inconsistent with the record as noted by the
ALJ. Specifically, defendant points to observation that plaintiffs mental health symptoms were
stable with medications.

Further, defendant reiterates that marked limitation in the MRFC

remain inconsistent with Plaintiffs activities and inconsistent with treating notes, including those
of Dr. Henderson. Defendant further notes that the ALJ gave great weight to Gregory Cole,
Ph.D, who saw plaintiff in August 2013 and opined that she could perform simple routine and
multi-step routine tasks. The ALJ opined that Dr. Cole's opinion was consistent with the record.
These arguments are not persuasive. There is evidence, through the GAF scores, that
plaintiffs mental symptoms waxed and waned as she claimed. Further, defendant's arguments
regard Dr. Henderson's notes amount to a post-hoc justification of the ALJ's decision. Finally it
is unclear that ALJ understood that the opinions in the MFRC were from a competing examining
source rather than plaintiffs social worker. Dr. Henderson was a treating, acceptable medical
source, and he signed the MRFC.

Further, in a joint statement with Ms. Hargraves it is

specifically stated that they both authored the report, and there is ample evidence in the record to
show that both treated plaintiffs mental disorders.
At the very least, the ALJ was required to consider that concurrence from a treating
source, and she could only reject the opinion by providing sufficient reason for doing so based

PAGE 9 - OPINION AND ORDER

on substantial evidence in the record.

Garrison, at 1012. Therefore, the ALJ erred in not

considering the MRFC and opinions of Dr. Henderson.
II.

Plaintiff's Symptom Testimony

Plaintiff argues that the ALJ failed to provide adequate reasons under the "clear and
convincing" standard to discredit plaintiffs testimony. Garrison, at 1015. Defendant argues the
ALJ' s disregard for the testimony is supported by substantial evidence and should be affirmed.
The Ninth Circuit applies a two-step approach when reviewing the ALJ' s treatment of a
plaintiff's symptom testimony. First, the ALJ evaluates "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." Id. at 1014 (quoting Bunnell v. Sullivan, 94 7 F .2d
341, 344 (9th Cir. 1991) (en bane)) (internal quotation marks omitted).

Second, "[i]f the

claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ
can reject the claimant's testimony about the severity of [the] symptoms only by offering
specific, clear and convincing reasons for doing so." Id at 1014-15. This test is satisfied ifthe
decision clearly shows that the ALJ did not arbitrarily discount the claimant's about her
symptoms. Carmickle v. Comm'r. Soc. Sec. Admin., 533 F. 3d 1155, 1163 (9th Cir. 2009). The
clear and convincing standard does not permit second-guessing of a credibility finding supported
by substantial evidence. Thomas v. Barnhart, 278 F. 3d 947, 959 (9th Cir. 2009).
Here, the ALJ found that objective medical evidence supported plaintiff's claim that she
suffers from the impairments noted above, which could be expected to produce some of the
symptoms she alleged. The ALJ then found, however, that plaintiff's statements concerning the
intensity, persistence, and limiting effects of her symptoms were not fully credible. The ALJ did
not find, nor does defendant argue, that plaintiff malingered. Given these facts, the ALJ was

PAGE 10 - OPINION AND ORDER

required to support the rejection of plaintiffs symptom testimony with specific, clear and
convincing reasons. I now tum to plaintiffs arguments.
First, plaintiff complains that the ALJ cherry picks evidence to show that plaintiff
presented on numerous occasions with completely normal physical presentations.

The ALJ

rejected plaintiffs symptom testimony because although the medical record showed plaintiff had
severe impairments of lumbar degenerative disc disease, fibromyalgia, and asthma, she found
that plaintiffs statements concerning the intensity, persistence and limiting effects were not
consistent with objective findings in the record. The ALJ noted findings showing mild lumbar
spine pain, and that there are no MRI's in the record. Plaintiff correctly avers that MRI's were
recommended by some physicians but that here insurance denied coverage for them.

Her

neurosurgeon recommended an MRI, but opined that surgery was unlikely to relieve her low
back pain. He recommended that plaintiff exercises for mobility and strengthening and that she
stop smoking.
Plaintiff argues that the overall record documents significant, ongomg lumbar pam
consistent with her testimony. However, the record is adequate to support the ALJ's conclusion.
In 2014, lumbar x-rays showed only mild degenerative disk disease. The ALJ also noted that in
March 2012, Plaintiff exhibited no pain to direct palpation, some tenderness on the left, but good
extension, flexion, and lateral movement. Two months later, Plaintiff exhibited no significant muscle
pain, weakness, cramps, muscle wasting, tenderness, significant joint changes, and a normal gait.
Various other physical presentations showed normal musculoskeletal examinations and minimal
neurological findings. Plaintiff was also able to walk with a normal gait and ambulate with no
assistive device.
Plaintiff also argues that the ALJ erred in rejecting plaintiffs testimony when noting that
plaintiffs fibromyalgia was controlled with medication and that there are minimal tender points
PAGE 11 - OPINION AND ORDER

test in the medical record confirming that diagnosis. Plaintiff offers that her physicians did not
regularly conduct tender point examinations, but that there is evidence of uncontrolled
fibromyalgia found in the record, including in Dr. Glassman's examination.

However, Dr.

Glassman noted in his report that subjective complaints outweighed objective observations, and
he noted the presence of Waddell signs. Moreover, the ALJ noted that the condition appeared to
be controlled with Sertraline and Cyclobenzaprine. Plaintiff, primary care physician, Dr. Elaine
Callahan, noted plaintiffs myofascial pain was only mildly limiting.

Therefore, there was

sufficient evidence to support this statement for the ALJ
Plaintiff next argues that the ALJ erred in rejecting plaintiffs tested based on evidence of
mostly normal clinical presentation. The ALJ noted that Dr. Glassman indicated plaintiff was in
no apparent distress, had no cognitive defects, and had a positive Waddell testing, which
suggested symptom magnification. The examination by Dr. Glassman revealed no neurologic or
cognitive dysfunction and while she did have diagnosis of fibromyalgia, her subjective
complaints outweighed her objective findings. The ALJ opined that plaintiffs "allegations of
disabling pain are simply inconsistent with the mostly mild objective medial finding in the
record." Tr. 22. The ALJ also made note that plaintiffs pain allegations were not consistent
with her activities of daily living which include household chores, driving a car, and shopping.
Defendant also correctly notes that plaintiff attended community college, cared for her
grandmother, and exercised by walking, though not as much as she would have like. Plaintiff
notes that she experienced a period of homelessness, living in a tent for seven months. The ALJ
questioned her specifically about her activity during this period during the hearing. Plaintiffs
activities would seem to contradict her claims of disabling pain.

PAGE 12- OPINION AND ORDER

Reviewing the record, and plaintiff's own testimony, I conclude that there is substantial
evidence which reasonably supports the ALJ' s conclusion on this point.
Finally, plaintiff objects to the ALJ rejecting plaintiffs testimony on the ground that that
her bipolar disorder improved with treatment. Specifically, the ALJ noted that her symptoms
appeared to improve when plaintiff was taking her psychotropic medication as prescribed and
following through with psychotherapy.

The record shows that plaintiff provided variable

statements regarding her medication, and that she have missed doses. As noted above, plaintiff
avers that the record shows her symptoms waxed and waned. Further Dr. Gregory Cole, Ph.D,
reports were given great weight by the ALJ. Dr. Cole provided plaintiff with a GAF score of 58,
which suggested moderate mental limitations. Further, Dr. Cole opined that that plaintiff could
perform simple routine and simple multiple-step tasks, but would have difficulty interacting with
others. Plaintiff also points out that Dr. Callahan assessed a GAF score of 40, and opined that
there had been a distinct deterioration in Plaintiffs bipolar disorder, and recommended
psychiatric evaluation. Tr. 467-70. However, the ALJ chose to give Dr. Callahan's GAF score
little weight because she characterized it as only suggesting moderate mental limitations.
Though there are variable interpretations with regard to the ALJ finding that plaintiffs
mental symptoms improved with treatment, I must conclude that the ALJ offered clear and
convincing reasons for rejecting plaintiffs symptom testimony in total.

IV.

Type of Remand

Under Ninth Circuit law, neither plaintiff's symptom testimony nor medical opinion
contained in the MRFC should be credited as true on remand because further proceedings would
be helpful to deal with conflict contained in the record. Before crediting erroneously rejected
statements as true, a reviewing court must first determine that the ALJ committed a harmful legal

PAGE 13 - OPINION AND ORDER

error, such as a finding that did not meet the appropriate legal standard and one that affected the
ultimate disability decision. Dominguez v. Colvin, 808 F.3d 403, 407 (2015).
Yet in addition to finding harmful legal error, a reviewing court must also conclude that
the record has been fully developed and further administrative proceedings would serve no
useful purpose. Id I cannot draw that conclusion here.
Where there is conflicting evidence, and not all essential factual issues have been
resolved, a remand for an award of benefits is inappropriate. Reviewing courts may not move
from a finding of ALJ error "directly to an order requiring the payment of benefits without the
intermediate step of analyzing whether, in fact the claimant is disabled. Straus v. Comm 'r of
Soc. Sec. Admin., 635 F. 3d 1135, 1138. A claimant is not entitled to benefits under the statute

unless the claimant is, in fact, disabled, no matter how egregious the ALJ' s errors may be. Id.
Further administrative proceedings will serve a useful purpose because it will make
certain that the ALJ has accepted or rejected the opinion of Ms. Hargraves and Dr. Henderson
and properly weighed those against the conflict medical opinions.
CONCLUSION

The Commissioner's decision REVERSED, and REMANDED for further proceedings
consistent with this opinion.
IT IS SO ORDERED.
Dated this 30th day of September 2017.

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C2~.t~4".£~/
Ann Aiken
United States District Judge

PAGE 14 - OPINION AND ORDER