Youngs v. Commissioner Social Security Administration

Filing 17

OPINION and ORDER - For the reasons stated, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings. IT IS SO ORDERED. DATED this 11th day of January, 2018, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

GARY C. YOUNGS,

Case No.: 6:16-CV-01601-AC
Plaintiff,

OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Commissioner of Social Secmity,
Defendant.
ACOSTA, Magistrate Judge:
Gary C. Youngs ("plaintiff') seeks judicial review of the final decision of the
Commissioner of the Social Security Administration ("Conunissioner") denying his application
for Disability Insurance Benefits ("DIB"). Because the Conunissioner's decision is not
supported by substantial evidence, his decision should be REVERSED and REMANDED for
further proceedings.
\\\\\
IIIII

Page I - OPINION AND ORDER

Procedural Background

Plaintiff filed his application for DIB on June 19, 2012, alleging disability as of March 20,
2000. (Tr. 156-62.) The Connnissioner denied his application initially and upon reconsideration
and he requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 68-85, 86-103,
114-15.) An administrative hearing was held on November 5, 2014. (Tr. 35-67.) Afterthe hearing,
the ALJ issued an unfavorable decision on December 12, 2014, finding plaintiff not disabled. (Tr.
8-28.) The Appeals Council denied plaintiffs subsequent request for review, making the ALJ's
decision final. (Tr. 1-4.) This appeal followed. Plaintiff argues that the ALJ erred by improperly
evaluating the medical opinion evidence of record. (Pl. 's Opening Br. 2-20, Pl.'s Reply Br. 1-8.)
Factual Background

Born in September 1952, plaintiff was 62 years old at the time of the hearing. (Tr. 40, 156.)
He speaks English and his highest education level is the twelfth grade. (Tr. 54, 82, 102.) He stopped
working in March 2000 due to a shoulder injury, and has been unable to work after subsequently
developing an anxiety disorder. (Tr. 40-41, 156.) Plaintiff alleges disability due to a damaged
rotator cuff and disconnected biceps muscle in his right aim, an injured rotator cuff in his left aim,
severe anxiety disorder and panic attacks, gunshot shrapnel in his right leg, a frontal foot drop, gout
attacks in his knee and foot, neck pain and injury, foot pain, and permanent damage to his shoulder
joint. (Tr. 68, 88, 181.)
Standard ofReview

The co mi must affirm the Connnissioner' 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 amere scintilla. It means such relevant
Page 2 - OPINION AND ORDER

evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)).

The court must weigh "both the evidence that supp01is and detracts from the

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where
the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its]
judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted).
The initial burden ofproofrests upon the claimantto establish disability. Howardv. 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)(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). 1 First,
the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so,
the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
At step two, the Commissioner determines whether the claimant has a "medically severe
impairment or combination ofimpai1ments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520©.
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

At step three, the Commissioner determines whether the impairment meets or equals "one
1

Effective March 27, 2017, updates were made to the regulations and some sections of
the regulations were renumbered. The C.F.R. sections referenced throughout this opinion are the
versions of the C.F.R. that were in effect at the time plaintiff requested judicial review.
Page 3 - OPINION AND ORDER

of a number of listed impairments that the Secretary acknowledges are so severe as to preclude
substantial gainful activity." Id; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform "past
relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(e). If the claimant can work, he is
not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner.
Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the claimant can
perform other work. Id at 142; 20 C.F.R. § 404.1520(e) & (f). If the Commissioner meets this
burden and proves that the claimant is able to perform other work which exists in the national
economy, he is not disabled. 20 C.F.R. § 404.1566.
The ALJ's Findings
The ALJ perfonned the sequential analysis. At step one, he found that plaintiff had not
engaged in substantial gainful activity since his alleged onset date. (Tr. 13.) At step two, the ALJ
concluded that plaintiff had the following severe impairments: cervical degenerative disc disease,
mild carpal tunnel syndrome on the right, history of a gunshot wound to the right leg, hist01y of right
shoulder degenerative joint disease concerning the acromioclavicular joint, and anxiety with panic
attacks. (Tr. 13-15.) At step three, the ALJ determined that plaintiff did not have an impairment or
combination ofimpainnents that met or medically equaled a listed impaitment. (Tr. 15-16.)
The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that
plaintiff has the RFC to
perform light work as defined in20 CPR 404.1567(b) except he is limited to
no more than occasional climbing or bilateral overhead reaching. The
claimant is also limited to no more than occasional pushing or pulling with
Page 4 - OPINION AND ORDER

his right upper extremity and with his right lower extremity. The claimant is
limited to no more than frequent handling and fingering with his right hand.
The claimant is also limited to occupations that require no more than
occasional interaction with coworkers and the general public. Due to his
reduced tolerance to stress and due to a noticeable increase in the frequency
and severity of panic attacks when experiencing an increase in stress, the
claimant would function best in a work environment where he is limited to
simple, repetitive, routine tasks.
(Tr. 16-22.)
At step four, the ALJ found that plaintiff was unable to perform his past relevant work as a
warehouse worker and a laborer. (Tr. 22.) At step five, the ALJ found, considering plaintiff's age,
education, work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that plaintiff could have performed.

(Tr. 23.)

Therefore, the ALJ concluded plaintiff was not disabled. (Tr. 23-24.)
Discussion

Plaintiff argues that the ALJ erred by failing to reasonably evaluate the medical opinion
evidence ofrecord. (Pl. 's Opening Br. 2-20, Pl. 's Reply Br. 1-8.) Specifically, plaintiff argues that
the ALJ erred by failing to properly evaluate the medical opinions of Dr. Robert Kaye, Dr. Paul
Puziss, Dr. Rory Richardson, Dr. Roy D. Clark, Jr., Dr. Christian Kole, Dr. Charles Bellville, and
the medical opinions from the Washington Vocational Services State Fund medical evaluators. (Id.)
"Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity ofyour impairment(s), including
your symptoms, diagnosis and prognosis, what you can still do despite impairment( s), and your
physical and mental restrictions." 20 C.F.R. § 404.1527(a)(2). "The ALJ must explicitly reject
medical opinions, or set forth specific, legitimate reasons for crediting one medical opinion over

Page 5 - OPINION AND ORDER

another." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)(citing Nguyen v. Chafer, 100 F.3d
1462, 1464 (9th Cir. 1996)). An ALJ errs by rejecting or assigning minimal weight to a medical
opinion "while doing nothing more than ignoring it, asserting without explanation that another
medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a
substantive basis" for the ALJ's conclusion. Garrison, 759 F.3d at 1013.
"An ALJ can satisfy the 'substantial evidence' requirement by 'setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof,
and making findings."' Garrison, 759 F.3d at 1012 (quoting Reddickv. Chafer, 157 F.3d 715, 725
(9th Cir. 1998)). In other words, "[t]he ALJ must do more than offer his conclusions. He must set
forth his own interpretations and explain why they, rather than the doctors', are correct." Reddick,
157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). However, an ALJ
may not simply select evidence to support the conclusion that a plaintiff is not disabled; rather, the
ALJ must consider the evidence as a whole in arriving at a conclusion based on substantial evidence.

Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001).
Here, plaintiff argues the ALJ erred when evaluating the medical opinions of Drs. Kaye,
Richardson, Puziss, Kole, Clark, Bellville, and the medical opinion from the Washington Vocational
Services State Fund medical providers. (Pl.'s Opening Br. 2-20, Pl.'s Reply Br. 1-8.) The court
addresses plaintiffs arguments with respect to his physical and mental limitations.

1

Medical Opinion Evidence Concerning Plaintiffs Physical Impairments.
First, plaintiff argues that the ALJ erred by improperly rejected the medical opinions of Dr.

Robert Kaye and Dr. Paul Puziss, who evaluated plaintiff with respect to his shoulder injury. (Pl. 's
Opening Br. 8-11, Pl.' s Reply Br. 1-3.)

Page 6 - OPINION AND ORDER

An ALJ may reject the uncontradicted medical opinion of a treating or examining physician
only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81F.3d821, 830-31 (9th

Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by
providing "specific and legitimate reasons that are supported by substantial evidence." Id.
A.

Dr. Robert Kaye.

Dr. Kaye was plaintiffs primary treating physician who began treating plaintiff in May 2003
for his shoulder injury. (Tr. 249.) On July 28, 2003, Dr. Kaye submitted a typed letter to the
Washington Depmiment of Labor and Industries on plaintiffs behalf, where he wrote that it was his
medical opinion that plaintiff was "incapable of engaging in reasonably continuous gainful
employment from 5-3-03 through current." (Tr. 245.) At the bottom on the letter, Dr. Kaye included
a handwritten note where he wrote that"based on the patient's history and physical findings that he
has been unable to work from the time of the original surgery."2 (Id.)
The ALJ was required to give a specific and legitimate reason for discrediting Dr. Kaye's
opinion because it was inconsistent with the medical opinion of Dr. Jena Schliter who found that
plaintiff could do light work during that smne time. (See tr. 945, 953; see also Bayliss, 427 F.3d at
1216 (the contradicted opinion of a treating or examining physician can be rejected with specific and
legitimate reasons that are suppmied by substantial evidence).) Here, the ALJ gave Dr. Kaye's July
28, 2003 medical opinion "little weight," finding that Dr. Kaye failed to "cite objective medical
findings in support of [his] conclusion." (Tr. 20.) An "ALJ need not accept the opinion of any

2

Plaintiff underwent his first shoulder surgery on May 9, 2001. (See tr. 14, 93, 269, 277,
284, 287, 626.)
Page 7 - OPINION AND ORDER

physician, including a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings." Brayv. Comm 'r ofSoc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009).
The ALJ' s finding is supported by the record. An independent review of the record shows
that plaintiff recovered well from shoulder surgery, and despite sustaining a minor injury during
physical therapy in 2004, had no additional complications. (See tr. 277, 293, 347, 357, 463, 466-68,
549, 643, 1225.) Additionally, medical providers found on June 11, 2001, that plaintiff was able to
return to work with modified duties. (Tr. 293.) As the ALJ gave a specific and legitimate reason,
supported by substantial evidence, for discrediting Dr. Kaye's medical opinion concerning plaintiffs
shoulder impairment, there is no error.

B.

Dr. Paul Puziss.

Next, plaintiff argues that the ALJ improperly rejected the medical opinion of Dr. Puziss who
completed a Work Restriction Evaluation on August 30, 2004, finding that plaintiff could not work
eight hours a day, andhad a lifting restriction of one to ten pounds. (Pl.'s Opening Br. 9, Pl.'s Reply
Br. 1-3.)
Here, the ALJ gave Dr. Puziss's August 2004 opinion "little weight." (Tr. 20.) The ALJ
found that Dr. Puziss's opinion was only a "temporary finding," noting that Dr. Puziss wrote that
plaintiff "should be capable of returning to work in a month." (Id.) The ALJ additionally discounted
Dr. Puziss's opinion after finding the one-month restriction was only related to plaintiffs physical
therapy injury, and not "an impairment fulfilling the duration requirement of 12 continuous months."

(Id., citing tr. 373.) Indeed, the record shows Dr. Puziss wrote that plaintiffs projected release date
for return to work was October 1, 2004. (Tr. 367, 375.) Plaintiff argues that other doctors limited
Page 8 - OPINION AND ORDER

him to lifting no more than ten pounds, which further supports Dr. Puziss' s medical findings,
however the ALJ cited medical records where plaintiff was found to have full range of motion in his
shoulder and had the ability lift more than ten pounds.

(See tr. 19, citing tr. 639, 1361.)

Additionally, an independent review of the record shows Dr. Puziss asked to close plaintiffs claim
on March 7, 2005, after finding that plaintiff was "medically stationary" and had "done quite well
after his more recent shoulder surgery." (Tr. 457.)
Although plaintiff disagrees with the ALJ's interpretation of the medical record,"[w]hen the
evidence before the ALJ is subject to more than one rational interpretation, we must defer to the
ALJ's conclusion." Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The
ALJ reasonably evaluated Dr. Puziss' s medical opinion concerning plaintiffs physical impairments.
There is no error.
II.

Medical Opinion Evidence Concerning Plaintiffs Mental Impairments.
Next, plaintiff argues that the ALJ erred by improperly evaluating medical opinion evidence

concerning his mental impairments. (Pl.'s Opening Br. 11-20, Pl.'s Reply Br. 3-8.) Specifically,
plaintiff argues that the ALJ elTed by failing to properly evaluate the medical opinion evidence of
Drs. Kaye, Richardson, Kole, Clark, Bellville, and the Washington Services State Fund medical
evaluators, with respect to his mental health impairments. (Id.)
"In making a determination of disability, the ALJ must develop the record and interpret the
medical evidence." Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); see also
Crane v. Shala/a, 76 F.3d 251, 255. The ALJ must consider the evidence as a whole in arriving at

a conclusion based on substantial evidence. Holohan, 246 F Jd atl207. When developing the
record, the ALJ "need not discuss all evidence presented to [him]. Rather, [he] must explain why
Page 9 - OPINION AND ORDER

'significant probative evidence has been rejected.'" Vincent on Behalf of Vincent v. Heckler, 739
F.2d 1393, 1394-95 (9th Cir. 1984).

A.

Dr. Robert Kaye.

Plaintiff argues that the ALJ erred when evaluating Dr. Kaye's medical opinion concerning
his mental impairments. (Pl. 's Opening Br. 11-20, Pl.'s Reply Br. 3-8.) Plaintiff makes two distinct
arguments: first, that the ALJ failed to discuss Dr. Kaye's June 4, 2005 medical opinion; and
second, that the ALJ failed to provide a legally sufficient reason to discredit Dr. Kaye's October 13,
2008, and August 10, 2009 medical opinions. (Pl.'s Opening Br. 11-20, Pl.'s Reply Br. 3-8.) The
court addresses each argument below.
First, plaintiff argues that the ALJ erred by failing to address Dr. Kaye's June 4, 2005
medical opinion. (Pl.'s Opening Br. 12, Pl.'s Reply Br. 4.) In his June 4, 2005 letter, Dr. Kaye
wrote that plaintiffs panic attacks were "currently ... exceedingly disabling to [plaintiff] and
basically render him unable to return to the work place until they are resolved .... " (Tr. 621.) As
plaintiff correctly notes, the ALJ did not specifically discuss this letter. Although an ALJ is not
required to discuss all evidence presented to him, the ALJ must explain why "significant probative
evidence has been rejected." See Vincent, 739 F.2d at 1394-95.
Dr. Kaye treated plaintiff for a number of years, both before, and after plaintiffs date last
insured. (See tr. 692, 792, 801, 818, 822, 824, 832, 840, 1465, 1726, 1729, 1732, 1754, 1757, 1759,
1772, 1954.) Initially, Dr. Kaye noted some improvement in plaintiffs mental impairments, yet over
time found plaintiffs anxiety became more debilitating, eventually writing in June 11, 2011, thathe
considered plaintiff "permanently disabled by the industrial injuries which [plaintiff] has suffered
.... " (Tr. 1954.) Given that Dr. Kaye's June 4, 2005 letter was written during his continued
Page 10- OPINION AND ORDER

treatment of plaintiff, and it described his overall findings concerning the severity of plaintiffs
mental impairments, it was "significant, probative" evidence that the ALI was required to consider.
See Holohan, 246 F.3d at 1207 (9th Cir. 2001). The ALI erred by failing to discuss Dr. Kaye's June
4, 2005 medical opinion.
Next, plaintiff argues that the ALJ erred by failing to provide a legally sufficient reason for
discrediting Dr. Kaye's October 13, 2008, and August 10, 2009 medical opinions. (Pl. 's Opening
Br. 11-20, Pl.'s Reply Br. 3-8.) On October 13, 2008, Dr. Kaye wrote a letter stating that he had
treated plaintiff from December 31, 2003, through the present, and that it was his professional
opinion that plaintiffs right shoulder and mental health conditions "have kept [plaintiff! from
engaging in any form of reasonably continuous gainful employment." (Tr. 1726.) On August 10,
2009, Dr. Kaye wrote a letter stating that"[ s]econdmy to the combination of problems both physical
with the shoulder and mental with the severe panic episodes, [plaintiff! should be considered totally
and permanently disabled." (Tr. 1925.)
Here, the ALJ gave Dr. Kaye's medical opinions "no weight" finding that both letters were
submitted after the date last insured and failed to cite objective medical evidence in support of the
conclusions. (Tr. 20.) Additionally, the ALJ found that Dr. Kaye "failed to report what time period
he was referencing," and "did not list any specific limitations." (Id.)
The ALJ's reasons for rejecting Dr. Kaye's medical opinion m·e not supported by substantial
evidence. The ALJ was required to give a specific and legitimate reason for discrediting the medical
opinion of Dr. Kaye because it was contradicted by the medical opinion of Dr. Sharon Eder, who
found plaintiff could perform other work in the national economy and was therefore not disabled.
(Tr. 82, see also Bayliss v, 427 F.3d at 1216.) First, the ALJ discredited Dr. Kaye's opinion finding
Page 11 - OPJNION AND ORDER

it was submitted after the date last insured, however this fact alone is not a specific and legitimate
reason for discrediting a treating physician's medical opinion as an ALJ is required to consider the
medical record as a whole. See Holohan, 246 F.3d at 1207. Because Dr. Kaye had treated plaintiff
over the years, the ALJ should have considered his medical opinion when making a determination
of disability.
Next, the ALJ discredited Dr. Kaye's medical opinion, finding it failed to cite objective
medical evidence. (Tr. 20.) This court finds this was not a specific and legitimate reason supported
by substantial evidence to discredit Dr. Kaye's medical opinion. Although an ALJ may discredit a
doctor's opinion that is brief or conclusory, Dr. Kaye's opinion was neither. See Bray, 554 F.3d at
1228. Dr. Kaye had treated plaintiff for a number of years, suggesting that his letter and medical
opinion were been based on years of treatment. Although Dr. Kaye did not include objective medical
evidence in this particular letter, considering the medical record as a whole, Dr. Kaye's letter was
based on objective medical evidence from his treatment of plaintiff that showed plaintiff suffered
from a debilitating mental impairment. (See tr. 262, 449, 621, 692, 801, 818, 1726, 1729, 1732,
1754, 1757, 1759, 1772, 1854.) Because the ALJ failed to consider Dr. Kaye's medical opinion in
the context of the medical record as a whole, this court finds the ALJ erred by discrediting Dr.
Kaye's medical opinion.
Finally, the ALJ rejected Dr. Kaye's letters, finding he gave no "specific limitations." (Tr.
20.) A physician's reports should demonstrate how a claimant's symptoms translate into specific
functional deficits which preclude certain activities. See Morgan v. Comm 'r ofSoc. Sec. Admin.,
169 F.3d 595, 601 (9th Cir. 1999). Although failing to cite specific functional deficits is a legally
sufficient reason to discredit the medical opinion of a treating physician, the ALJ' s findings is not
Page 12 - OPINION AND ORDER

supported by substantial evidence in the record as the medical record contains numerous treatment
notes from Dr. Kaye describing plaintiffs mental impairment and limitations.

As the ALJ

improperly evaluated Dr. Kaye's medical opinion by discrediting his letters, and failing to consider
the evidence his opinion as a whole, this court finds en-or.

B.

Dr. Rory Richardson.

Next, plaintiff makes similar arguments regarding medical opinion evidence from Dr.
RichaTdson. First, plaintiff argues that the ALJ erred by failing to address Dr. Richardson's
September 5, 2005 medical opinion. (Pl.'s Opening Br. 12-17, Pl. 's Reply Br. 3-6.) Next, plaintiff
argues that the ALJ failed to provide a legally sufficient reason to reject Dr. Richardson's February
4, 2006, October 20, 2008, and September 22, 2009 medical opinions. (Pl.'s Opening Br. 13-17).
This comt addresses each argument in turn.
First, plaintiff argues that the ALJ failed to consider Dr. Richardson's September 5, 2005
letter. (Pl.'s Opening Br. 12-17, Pl.'s Reply Br. 3-6.) On September 5, 2005, Dr. Richardson wrote
a letter noting that he had been treating plaintiff for severe panic disorder and anxiety since February
18, 2005. (Tr. 575.) In his letter, Dr. Richardson wrote that he had been treating these medical
conditions "with only partial success," and at that time plaintiff was "still experiencing panic attacks
which are immobilized daily in the afternoon and evening hours with (sic) interferes with sleep and
ability to leave his home at times." (Id.) Overall, Dr. Richardson noted that "prognosis at this time
is guarded given the limited impact treatment has made in [plaintiffs] condition." (Id.)
As plaintiff correctly noted, the ALJ failed to consider this medical opinion. Similar to Dr.
Kaye, Dr. Richardson had treated plaintiff for a number of years both before and after plaintiffs date
last insured. (See tr. 594, 606, 697, 857-62, 864, 866-67, 883, 888, 1424, 1430, 1481, 1494, 1731,
Page 13 - OPINION AND ORDER

1926-37, 1953, 1956.) Although the ALJ is not required to evaluate all evidence, the ALJ must
provide an explanation for rejecting significant probative evidence. See Vincent, 739 F.2d at
1394-95. Considering Dr. Richardson's medical evidence as a whole, his letter is significant,
probative evidence that the ALJ should have considered, because it summarized Dr. Richardson's
overall findings and treatment regarding plaintiff's mental impairments. For this reason, the ALJ
erred by failing to consider this letter.
Next, plaintiff argues that the ALJ erred by failing to provide a legally sufficient reason to
discredit the medical opinion of Dr. Richardson from February 4, 2006, October 20, 2008, and
September 22, 2009. (Pl.'s Opening Br. 13-17.) On February 4, 2006, Dr. Richardson wrote that
it was his opinion that plaintiff "has been incapable of engaging in reasonably continuous
employment from 12/7/05 through present." (Tr. 693, 696, 1672, 1676.) On October 20, 2008, Dr.
Richardson wrote a second note stating the same finding. (Tr. 1927.) Finally, on September 22,
2009, Dr. Richardson wrote that plaintiff was "continuing treatment for the panic disorder" and that
"this is one of the worse cases of Panic Disorder I have ever encounter (sic)." (Tr. 1926.) Dr.
Richardson also noted that plaintiff was compliant with his treatment, but"[ d]espite use of various
treatment approaches, we have not been able to get this condition into remission." (Id.)
The ALJ gave Dr. Richardson's medical opinion "little weight" after finding Dr.
Richardson's opinions "fail[ed] to list any impairment or any objective medical findings," that he
did not provide an explanation for the term "reasonably continuous employment," and because the
opinions were given three years after the date last insured. (Tr. 21.) Similar to this court's analysis
regarding the ALJ's treatment of Dr. Kaye's medical opinion, this court finds the ALJ erred in
discrediting Dr. Richardson's medical opinion. Dr. Richardson's opinion was supported by objective
Page 14 - OPINION AND ORDER

medical findings, given that he had treated plaintiff for a number of years. Additionally, the failure
to list specific limitations in his letters was not a specific and legitimate reason to discredit his
medical opinion in this case, because the ALJ failed to consider Dr. Richardson's medical opinion
as a whole, which showed limitations relating to plaintiffs mental impairments. (See tr. 528, 575,
578, 870, 1494, 1731, 1927, 1931, 1935.) The ALJ improperly discredited Dr. Richardson's entire
medical opinion concerning plaintiffs mental impairments by discrediting a few of Dr. Richardson's
letters.
As the ALJ erred by failing to provide specific and legitimate reasons, supported by
substantial evidence, for discrediting Dr. Richardson's medical opinion, this court finds the ALJ
erred in evaluating Dr. Richardson's medical opinion.
C.
Medical Opinions of Dr. Christian Kole, Dr. Roy Clark, Jr., Dr. Charles Bellville,
and the Washington State Vocational Services Medical Evaluators.

Finally, plaintiff argues that the ALJ failed to discuss the medical opinions of Drs. Kole,
Clark, Bellville, and the Washington State Vocational Services Fund medical evaluators. (Pl.'s
Opening Br. 18-20, Pl.'s Reply Br. 4-8.) Specifically, plaintiff argues thatthe ALJ failed to consider
Dr. Kole's May 2, 2005 medical opinion, Dr. Clark's November 8, 2005 medical opinion, Dr.
Bellville's June 2010 medical opinion, and the July 2010 Washington Vocational Services State
Fund report. (Id.)
On May 2, 2005, Dr. Kole, a psychiatrist, conducted a Psychiatric Evaluation of plaintiff.
(Tr. 625-40.) Dr. Kole found plaintiffs mood was irritable and that intellectually plaintiff was in
the "average" range. (Tr. 63 7.) Overall, Dr. Kole diagnosed plaintiff with"[ a]typical panic attacks,"
personality disorder with passive aggressive traits, contemporary stress, and a GAF score of 60. (Id.)
Dr. Kole found plaintiffs panic disorder and panic episodes were "quite disabling in the sense that
Page 15 - OPINION AND ORDER

he is immobilized for a while, and they do not seem to respond to ordinary medication for panic
disorder." (Id.)
On November 8, 2005, Dr. Clark performed a psychiatric evaluation of plaintiff. (Tr.
712-43.) During his examination, plaintiff reported to Dr. Clark that he experienced panic attacks
which began after his shoulder injury. (Tr. 716.) Plaintiff also reported that he had tried "a number
of different medications," but he did not benefit. (Tr. 718.) Upon examination, Dr. Clark concluded
that plaintiffs impairment was "more congruent with an anxiety disorder with panic attacks due to
a general medical condition, specifically his developing arrhythmia subsequently requiring a
pacemaker than an anxiety condition developing as a proximate result of the covered injury." (Tr.
724.) Overall, Dr. Clark wrote that plaintiffs "mental status has reached a fixed and stable state"
and that plaintiff"may benefit from continued treatment for his anxiety disorder with panic attacks.
However, this treatment, ... would be directed towards a condition independent of the covered
injury and its sequelae." (Tr. 738.)
On June 11, 2010, Dr. Charles Bellville conducted a psychiatric interview of plaintiff. (Tr.
1811-19.) Dr. Bellville found plaintiffs judgment and insight were "considered fair to limited." (Tr.
1815 .) After reviewing medical records, Dr. Bellville reported that plaintiffs treatment for his panic
attacks "has not been very successful," but he gets "some benefit from contact with psychologist
Rory Richardson and continuing to take lorazepam ... at night." (Tr. 1816.) Overall, Dr. Bellville
diagnosed plaintiff with panic disorder without agoraphobia; generalized anxiety disorder, mild
alcohol abuse and marital discord, mixed personality traits including avoidant and passive-aggressive
traits, contributing physical problems related to his surgeries, industrial injury, arrhythmia, gout,
marked psychological and envirorunental. (Id.) With regards to his ability to work, Dr. Bellville
Page 16- OPINION AND ORDER

wrote that there were "several challenges for working from a psychiatric perspective" including
plaintiffs "marked fear of driving," and that his workplace would "need to allow him to be able to
leave ifhe had a panic attack, became angry or agitated." (Tr. 1817 .) Dr. Bellville further wrote that
"[flrom a psychiatric perspective, if he is able to leave a job when he is anxious, anger (sic), or
having a panic attack, then he might be able to perform a job. His overall irritability will make it
significantly difficult for him to get along with other people." (Id.) He recommended that plaintiff
continue counseling with Dr. Richardson and continue using anti-anxiety medications, but did note
these were "considered palliative at this point and is not curative or rehabilitative." (Tr. 1818.)
Finally, in July 2010, the Washington Vocational Services State Fund found "[Plaintiff!
unable to work or pmiicipate in vocational services due to the [March 2000] industrial injury" and
"[a]s based upon the psychiatric diagnosis, Generalized Anxiety Disorder, [plaintiff! has been
permanently precluded from gainful employment." (Tr. 1843-44.)
As plaintiff cotTectly notes, the ALJ failed to consider any of these medical opinions when
making the overall disability determination. The ALJ is required to consider the medical opinion
as a whole, so the ALJ committed harmful error by failing to consider these medical opinions, which
contained specific functional limitations based on plaintiffs mental health limitations, along with
the other medical opinions concerning plaintiffs mental impairments.

Remand
The decision whether to remand for fu1iher proceedings or for immediate payment ofbenefits
is within the discretion of the court. Harmen v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) cert.

denied, 531 U.S. 1038 (2000). The issue turns on the utility offi.uiher proceedings. A remand for
an award ofbenefits is appropriate when no useful purpose would be served by fmiher administrative
Page 17 - OPINION AND ORDER

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 to determine if a claimant is disabled under
the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of
benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence; (2) there are no outstanding issues that must be resolved before a dete1mination of
disability can be made; and (3) it is clear from the record that the ALJ would be required to find the
claimant disabled were such evidence credited. Id. The "credit-as-true" doctrine is not a mandatory
rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award
of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F.3d 871, 876
(9th Cir. 2003) (citing Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en bane)). The
reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v. Astrue,
623 F.3d 1032, 1035 (9th Cir. 2010).
Here, the ALJ failed to properly evaluate medical opinion evidence from Drs. Kaye,
Richardson, Kole, Clark, Bellville, and the Washington State Vocational Services medical
evaluators, who all found that plaintiff suffered from anxiety attacks.

Because Drs. Kaye,

Richardson, Kole, Clark, and the Washington State Vocational Services medical evaluators found
plaintiffs anxiety to be debilitating and Dr. Bellville found plaintiffs anxiety disorder to be "fixed
and stable," this court finds issues still remain that remand for further proceedings.

IIIII
Page 18 - OPINION AND ORDER

Conclusion

For the reasons above, the Commissioner's decision is REVERSED and this case is
REMANDED for fmiher proceedings.
IT IS SO ORDERED.
DATED this

/ ;;/., day of January, 2018.

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