Williams v. Commissioner Social Security Administration
OPINION AND ORDER: She Commissioners decision is REVERSED and this case is REMANDED for further proceedings. Signed on 8/1/2017 by Magistrate Judge Jolie A. Russo. (plb) Corrected formatting error on 8/1/2017 (plb).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WILLIE J. WILLIAMS,
Case No. 6:16-cv-00966-JR
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner, Social
RUSSO, Magistrate Judge:
Plaintiff Willie Williams brings this action for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for Title XVI Social
Security Income (“SSI”). All parties have consented to allow a Magistrate Judge to enter final
orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c).
For the reasons set forth below, the Commissioner’s decision is reversed and this case is
remanded for further proceedings.
Page 1 – OPINION AND ORDER
In May 2012, plaintiff applied for SSI alleging disability as of January 5, 2006. Tr. 18994. His application was denied initially and upon reconsideration. Tr. 103-06, 110-11. On
November 5, 2014, a hearing was held before an Administrative Law Judge (“ALJ”); plaintiff
was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 37-65. On
January 15, 2015, the ALJ issued a decision finding plaintiff not disabled within the meaning of
the Act. Tr. 13-25. After the Appeals Council denied his request for review, plaintiff filed a
complaint in this Court. Tr. 1-7.
STATEMENT OF FACTS
Born on December 31, 1976, plaintiff was 29 years old on the alleged onset date and 37
years old at the time of the hearing. Tr. 189. Plaintiff graduated from high school and attended
classes at Western Oregon University. Tr. 207, 290. He worked previously as a recycling
laborer, pizzeria manager, and shipping supervisor. Tr. 207, 278. Plaintiff alleges disability due
to: bipolar disorder, depression, post-traumatic stress disorder (“PTSD”), and back pain. Tr. 206.
STANDARD OF REVIEW
The 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. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
The court must weigh “both the evidence that supports and detracts from the
Page 2 – OPINION AND ORDER
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).
To meet this burden, the claimant 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)(1)(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. § 416.920. At step
one, the Commissioner determines whether a claimant is engaged in substantial gainful activity.
Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a “medically severe
impairment or combination of impairments.”
Yuckert, 482 U.S. at 140-41; 20 C.F.R. §
416.920(c). If the claimant does not have a severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant’s impairments, either
singly or in combination, meet or equal “one of a number of listed impairments . . . the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity.”
Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform “past
relevant work.” 20 C.F.R. § 416.920(f). If the claimant can work, he is not disabled; if he
cannot perform past relevant work, the burden shifts to the Commissioner.
Page 3 – OPINION AND ORDER
At step five, the Commissioner must establish the claimant can perform other work
existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42;
20 C.F.R. § 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20
C.F.R. § 416.966.
THE ALJ’S FINDINGS
At step one of the five step sequential evaluation process outlined above, the ALJ found
plaintiff had not engaged in substantial gainful activity since the application date. Tr. 15. At
step two, the ALJ determined the following impairments were medically determinable and
severe: “degenerative disc disease, obesity, bipolar disorder NOS, depression, PTSD, [and]
At step three, the ALJ found plaintiff’s impairments, either singly or in
combination, did not meet or equal the requirements of the listed impairment. Id.
Because he did not establish presumptive disability at step three, the ALJ continued to
evaluate how plaintiff’s impairments affected his ability to work. The ALJ resolved that plaintiff
had the residual functional capacity (“RFC”) to perform light work except that he is limited to:
“no more than frequent climbing of ramps or stairs, balancing, and crawling”; “no more than
occasional climbing of ladders, ropes, or scaffolds, stooping, kneeling, and crouching”; “simple
instructions”; and “only occasional interaction with coworkers and supervisors and no interaction
with the public.” Tr. 17.
At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr.
23. At step five, the ALJ concluded, based on the VE’s testimony, there existed a significant
number of jobs in the national and local economy plaintiff could perform despite his
impairments, such as electronics worker, electrical accessories assembler, and inspector and hand
packager. Tr. 24.
Page 4 – OPINION AND ORDER
Plaintiff argues the ALJ erred by: (1) improperly weighing the medical opinions of
Damon Tempey, Ph.D., and physician assistant Christopher Wallis regarding his mental
impairments; (2) rejecting his subjective symptom testimony concerning his mental impairments;
and (3) making an improper step five finding.
Plaintiff asserts the ALJ wrongfully discredited mental health evidence from Dr. Tempey
and Mr. Wallis.
There are three types of acceptable medical opinions in Social Security cases: those from
treating, examining, and non-examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995). The opinions of treating physicians are generally accorded greater weight than the
opinions of non-treating physicians. Id. To reject the uncontroverted opinion of a treating or
examining doctor, the ALJ must present clear and convincing reasons supported by substantial
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). If a
treating or examining doctor’s opinion is contradicted by another doctor’s opinion, it may be
rejected by specific and legitimate reasons supported by substantial evidence. Id.
In 2011, plaintiff sought care from Dr. Tempey for his psychological symptoms; their
treating relationship initially consisted primarily of medication management. Tr. 310-28, 542.
Beginning in April 2013, plaintiff sought counseling, in addition to medication management,
from Dr. Tempey approximately every month. Tr. 455-535. Plaintiff was generally compliant
with Dr. Tempey’s recommendations except for two brief periods – one in 2012 and the other in
2014 – when plaintiff discontinued his prescribed medications. Tr. 338, 474.
Page 5 – OPINION AND ORDER
On October 16, 2013, Dr. Tempey completed a check-box Mental Residual Functioning
Capacity (“MRFC”) form. Tr. 376-79. Dr. Tempey indicated plaintiff was moderately-severely
or severely limited 1 in his ability to: remember locations and work-like procedures; understand
and remember detailed instructions; carry out very short and simple, or detailed, instructions;
maintain attention and concentration for extended periods; perform activities as scheduled,
maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary
routine without special supervision; make simple work-related decisions; complete a normal
workday and workweek without interruptions from psychologically based symptoms, and
perform at a consistent pace without an unreasonable number and length of rest periods; interact
with the general public; accept instructions and respond appropriately to criticism from
supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral
extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness; respond appropriately to changes in the work setting; be aware of normal hazards
and take appropriate precautions; travel in unfamiliar places or use public transportation; and set
realistic goals or make plans independently of others. Tr. 377-79. In the narrative portion of Dr.
Tempey’s MRFC, he opined that a “[c]ombination of severe depression + back problems makes
it unlikely [plaintiff] will be able to successfully participate in the work force.” Tr. 379.
The ALJ afforded “little weight” to Dr. Tempey’s opinion because it was inconsistent
with the medical record, which demonstrated plaintiff’s “back pain has been well-controlled
since July 2012 and his psychological symptoms have been well-controlled when he takes his
The MRFC form defines “moderately-severe” as “[a] limitation which seriously interferes with
the individual’s ability to function in the designated area, and precludes the individual’s ability to
perform the designated activity on a regular and sustained basis for 8 hours per day, 5 days per
week.” Tr. 376. “Severe” is defined as a limitation that “precludes the individual’s ability to
function in the designated area.” Id.
Page 6 – OPINION AND ORDER
medications as prescribed, which he did for most of 2013 and 2014, as evidenced from primary
care treatment records [from Mr.] Wallis.” Tr. 23.
“A conflict between treatment notes and a treating provider’s opinions may constitute an
adequate reason to discredit the opinions of a treating physician or another treating provider.”
Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citations omitted). Here, however,
substantial evidence does not support the ALJ’s conclusion that Dr. Tempey’s opinion was
inconsistent with the mental health treatment notes.
As plaintiff’s longstanding mental health specialist, Dr. Tempey had a “longitudinal
picture” of plaintiff’s impairments. SSR 06-03p, available at 2006 WL 2329939; Tr. 308-28,
376-79, 454-535, 542. His own chart notes, especially from 2013 and 2014, reflect ongoing and
continuous treatment for significant depression, anxiety, PTSD, and bipolar disorder. Tr. 455535.
Moreover, there is no evidence in the record from an examining or treating source,
including the chart notes of Mr. Wallis, to contradict Dr. Tempey’s opinion. See, e.g., Tr. 264,
287-94, 333-64, 374, 380-435, 537-40.
Indeed, the record is replete with evidence
demonstrating the seriousness of plaintiff’s mental impairments; although he engaged in regular
treatment for several years, he consistently experienced psychological symptoms at a level which
significantly interfered with his daily functioning. Tr. 47-56, 264, 204, 231-40, 374, 380-435,
455-535, 537-40, 542. Despite some waxing and waning of symptoms, these issues persisted
even during periods plaintiff was fully compliant with his medications. See, e.g., Tr. 47-52, 380435, 455-73, 476-535; see also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (”[c]ycles
of improvement and debilitating symptoms are a common occurrence [with mental health
impairments], and in such circumstances it is error for an ALJ to pick out a few isolated
Page 7 – OPINION AND ORDER
instances of improvement over a period of months or years and to treat them as a basis for
concluding a claimant is capable of working”).
As such, the ALJ impermissibly mischaracterized the record in affording less weight to
Dr. Tempey’s assessment. See Ghanim, 763 F.3d at 1161-62 (reversing the ALJ’s evaluation of
medical opinion evidence under analogous circumstances); see also Reddick v. Chater, 157 F.3d
715, 722-23 (9th Cir. 1998) (ALJ’s “paraphrasing of record material” was “not entirely accurate
regarding the content and tone of the record” and therefore did not constitute substantial
evidence). The ALJ erred in weighing Dr. Tempey’s opinion. 2
While only “acceptable medical sources” can diagnose and establish a medical
impairment exists, evidence from “other medical sources,” including physician’s assistants, can
be used to determine the severity of the impairment and how it affects the claimant’s ability to
work. SSR 06-03p, available at 2006 WL 2329939. To reject the opinion of an “other medical
source,” the ALJ must provide a germane reason supported by substantial evidence. Lewis v.
Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
Although plaintiff began treatment with Mr. Wallis in 2007 for his mental and physical
impairments, the record does not contain chart notes from Mr. Wallis prior to January 2012. Tr.
Beginning in January 2013, plaintiff sought treatment from Mr. Wallis
approximately once per month (in addition to his regular appointments with Dr. Tempey). Tr.
Dr. Tempey also provided a post-decisional letter responding to the ALJ’s unfavorable
decision. Tr. 542. Although there is no dispute this letter properly constitutes part of the record,
the ALJ did not have the opportunity to consider it as part of her decision. Regardless, it further
indicates the ALJ’s reasons for discrediting Dr. Tempey’s opinion was not supported by
substantial evidence. Notably, Dr. Tempey reiterated that, “[a]t the best of times, [plaintiff’s]
severe depression and PTSD symptoms are barely under control when he’s taking appropriate
medications.” Tr. 542. Dr. Tempey further opined that plaintiff’s “emotional disabilities would
[not] allow him to carry out” the representative occupations identified by the VE. Id.
Page 8 – OPINION AND ORDER
380-436, 537-40. In May 2013, Mr. Wallis submitted a letter stating that plaintiff’s back pain
and bipolar disorder precluded him from employment. Tr. 264. In July 2014, Mr. Wallis
authored a second letter in which he opined plaintiff “is unable to maintain gainful employment
due to mental and physical ability.” Tr. 374.
The ALJ gave “little weight” to Mr. Wallis’ opinion because “it is a summary statement
that does not offer any specific evidence as to why [plaintiff] would be unable to work.” Tr. 23.
The ALJ also found that “when [plaintiff] takes his medication as prescribed he has shown
significant medical improvement.” Id.
As to the ALJ’s first rationale, it is well-established that an ALJ cannot disregard the
opinion of a non-acceptable medical source as conclusory where, as here, that source’s opinion is
supported by longitudinal treatment notes. Garrison, 759 F.3d at 1013-14. At the time of the
ALJ’s decision, Mr. Wallis had been treating plaintiff for approximately eight years. Tr. 264.
Mr. Wallis’ more recent chart notes from 2013 and 2014 document plaintiff’s persistent mental
health problems and, as such, are consistent with his opinion letters. Tr. 380-436, 537-40.
Concerning the ALJ’s second rationale, as discussed in Section I(A), the record
overwhelmingly reflects that plaintiff continued to suffer significant psychological symptoms
despite full medication compliance. In fact, Mr. Wallis himself repeatedly noted that plaintiff
still suffered from depression, anxiety, and/or intrusive thoughts when he was taking his
medications as prescribed. See, e.g., Tr. 335-36, 355-56, 386-91, 394, 396-97, 404-07, 410-11,
416, 426, 428. In sum, the ALJ committed harmful legal error in evaluating the medical opinion
evidence regarding plaintiff’s mental impairments. See Stout v. Comm’r Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (only mistakes that are “non-prejudicial to the claimant or
irrelevant to the ALJ’s ultimate disability conclusion” are harmless).
Page 9 – OPINION AND ORDER
Plaintiff contends the ALJ neglected to provide a legally sufficient reason, supported by
substantial evidence, to reject his subjective symptom statements concerning the severity of his
When a claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms complained of, and the record
contains no affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony
about the severity of . . . symptoms only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A
general assertion that the claimant is not credible is insufficient; the ALJ must “state which . . .
testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 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) (internal citation omitted).
Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual’s
character” or propensity for truthfulness, and instead assesses whether the claimant’s subjective
symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL
If the ALJ’s finding regarding the claimant’s subjective symptom testimony is
“supported by substantial evidence in the record, [the court] may not engage in secondguessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).
At the hearing, plaintiff testified that the “main thing” preventing him from working was
his mental impairments – specifically, his tendency to self-isolate and social anxiety. Tr. 54.
Plaintiff stated that he self-isolates in his room for “a week and a half [or] two weeks,”
approximately three times per year, to mitigate intrusive, “racing thoughts.” Tr. 50-51, 56.
Page 10 – OPINION AND ORDER
During these periods, plaintiff remarked that he does not do “anything but just watch television
and sleep”; he even takes his meals in his room. Tr. 50-51. Plaintiff also explained that he has
panic attacks “[p]retty much every time [he] go[es] out in public.” Tr. 54-56.
After summarizing his hearing testimony, the ALJ determined plaintiff’s medically
determinable impairments could reasonably be expected to produce some degree of symptoms,
but his statements regarding the extent of his depression and social anxiety were not fully
credible because the evidence of record evinced he “secluded himself in his room [as] a personal
choice” to avoid family members that were staying in his house. Tr. 22. In addition, the ALJ
noted that “panic attacks make few appearances, if any, in the treatment records from [Mr.]
Wallis or Dr. Tempey.” 3 Id.
Although inconsistencies between a claimant’s hearing testimony and the record can be a
legally sufficient reason for an adverse credibility finding, that reason is not supported by
substantial evidence on this record. Namely, the medical evidence reflects that plaintiff selfisolated both before and after the period during which he had houseguests. Compare Tr. 410,
485 (plaintiff had family members living with him between November 2013 and March 2014),
with Tr. 469, 471, 473, 501-02, 511, 514, 516 (evidence of plaintiff self-isolating pre-November
2013 and post-March 2014). Furthermore, an independent review of the record reveals multiple
references in the chart notes of Mr. Wallis and Dr. Tempey to plaintiff’s panic attacks and/or
severe anxiety. See, e.g., Tr. 312, 338, 404, 416, 426, 428, 471.
Therefore, the ALJ failed to provide a clear and convincing reason, supported by
substantial evidence, to reject plaintiff’s subjective symptom testimony concerning the extent of
his mental health impairments. The ALJ’s credibility finding is reversed.
To the extent the ALJ also relied on plaintiff’s failure to seek mental health treatment, as
addressed above, the record is to the contrary. Tr. 22.
Page 11 – OPINION AND ORDER
Step Five Finding
Plaintiff argues the ALJ’s step five finding is erroneous because the hypothetical question
posed to the VE did not adequately account for all of his limitations. As discussed herein, the
ALJ wrongfully rejected portions of plaintiff’s subjective symptom testimony, as well as the
medical opinions of Dr. Tempey and Mr. Wallis. Because the ALJ failed to account for the
concrete work-related limitations of function outlined in this evidence, the ALJ erred in relying
upon the VE’s testimony. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (if a VE’s
“hypothetical does not reflect all the claimant’s limitations, then the . . . testimony has no
evidentiary value”) (citations and internal quotation marks omitted). Accordingly the ALJ’s
ultimate decision is not supported by substantial evidence and remand is necessary.
The decision whether to remand for further proceedings or for the immediate payment of
benefits lies within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th
Cir. 2000). The 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. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1099-1100 (9th Cir. 2014). The 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); see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015)
(summarizing the standard for determining the proper remedy).
Page 12 – OPINION AND ORDER
As discussed herein, the ALJ erred by failing to provide legally sufficient reasons,
supported by substantial evidence, for discrediting plaintiff, Dr. Tempey, and Mr. Wallis.
Nevertheless, the record is ambiguous concerning if/when plaintiff’s mental impairments became
disabling. On the one hand, plaintiff alleges a disability onset date of 2006, but the record before
the Court does not reflect any regular and continuous psychological treatment until 2013. Tr. 4445, 380-540. Moreover, the Court notes that, although both Dr. Tempey and Mr. Wallis opined
plaintiff’s physical impairments – particularly, his back pain – contributed to plaintiff’s inability
to work, the medical evidence does not demonstrate any significant back impairment for the
reasons the ALJ identified in formulating the RFC. Tr. 21-22; see also Pl.’s Reply Br. 5
(plaintiff acknowledging that his back pain “has been, more or less, controlled with
In light of these ambiguities, further proceedings are required to resolve this case. Upon
remand, the ALJ must review the entire record (including Dr. Tempey’s post-decision letter) and,
if necessary, reformulate plaintiff’s RFC and obtain additional VE testimony.
For the reasons stated above, the Commissioner’s decision is REVERSED and this case
is REMANDED for further proceedings.
IT IS SO ORDERED.
DATED this 1st day of August 2017.
s/Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge
Page 13 – OPINION AND ORDER
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