Swanson v. Commissioner Social Security Administration

Filing 28

OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion. Signed on 2/28/2018 by Judge Ann L. Aiken. (ck)

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

Case No. 6:16-CV-01615
OPINION AND ORDER

PENTA LESLIE SWANSON,
Plaintiff,
v.

NANCY M. BERRYHILL, Acting
Commissioner of
Social Security,
Defendant.

AIKEN, District Judge:
Plaintiff Penta Leslie Swanson brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review ofa final decision of the
Commissioner of Social Security ("Commissioner").

The Commissioner denied plaintiffs

application for Supplemental Security Income ("SSI''). For the reasons set forth below, the
Commissioner's decision is REVERSED and REMANDED for further proceedings.
BACKGROUND

On May 13, 2013, plaintiff applied for SSL She alleged disability beginning December
1, 2009, due to Post-Traumatic Stress Disorder ("PTSD"), Major Depressive Disorder with
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suicidal ideation and a history of multiple suicide attempts, attention deficit hyperactivity
disorder, and borderline personality disorder. Plaintiffs SSI application was denied initially and
upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge
("ALJ"). A hearing was held on January 13, 2015. At the hearing, plaintiff was represented by
an attorney, and a Vocation Expert ("VE') testified. On February 20, 2015, the ALJ issued a
decision denying plaintiffs claim for benefits.

After the Appeals Council denied review,

plaintiff filed the present complaint in this Court.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than
a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Gutierrez v. Comm'r ofSoc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ's conclusion." 1\1ayes v.
1'1assanari, 276 F.3d 453, 459 (9th Cir. 2001 ). If the evidence is subject to more than one

interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the cou1t may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

COMMISSIONER'S DECISION

The initial burden ofproofrests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986).

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To meet this burden, plaintiff must demonstrate an

"inability to engage in any substantial gainfol 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);

id § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainfol
activity" since the application date, May 13, 2013. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§
416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff had the following severe impairments
as of the alleged onset date: PTSD, attention deficit hyperactivity disorder ("ADHD"), major
depressive disorder, and borderline personality disorder. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c);

id §§ 416.920(a)(4)(ii), (c).
At step three, the ALJ detem1ined that plaintiffs impairments, whether considered singly
or in combination, did not meet or equal "one of the listed impaitments" that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity.

20 C.F.R.

§§

404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).
Before moving on to step four, the ALJ assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R.

§ 404.1520(e); id

§ 416.920(e). The ALJ found that plaintiff could

"perfo1m a full range of work at all extertional levels but with the following nonexertional
limitations: [ ... ] simple instructions [ ... ] few, if any, workplace changes [ ... ] occasional and
indirect contact with coworkers and the general public." Tr. at 26.

At step four, the ALJ

concluded that plaintiff is unable to perform her past relevant work.
404.1520(a)(4)(iv), (f); id §§ 416.920(a)(4)(iv), (f).

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20 C.F.R.

§§

At step five, however, the ALJ found that

plaintiff could perfo1m work in the national economy; specifically, plaintiff could work as a
library helper, photo finisher, or office checker. 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(l).
Accordingly, the ALJ found plaintiff not disabled and denied her applications for
benefits.

DISCUSSION
Plaintiff contends the ALJ committed reversible elTor at three places in the five-step
analysis. First, plaintiff asserts the ALJ erred in foimulating the RFC with regard to limitations
in concentration, persistence, and pace. Plaintiff also avers that the ALJ erred in discounting
certain medical opinion evidence. Finally, plaintiff contends that the ALJ ened in discounting
her symptom testimony.

I

RFC ANALYSIS
The RFC is the most a person can do, despite his or her physical or mental impairments.

20 C.F.R. §§ 404.1545, 416.945. In formulating the RFC, the ALJ must consider all medically
determinable impahments, including those that are not "severe," and evaluate "all of the relevant
medical and other evidence," including the claimant's testimony. Id.; SSR 96-8p, 1996 WL
374184. In determining a claimant's RFC, the ALJ is responsible for resolving conflicts in the
medical testimony and translating the claimant's impairments into concrete functional limitations
in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9 1h Cir. 2008). Only limitations
supported by substantial evidence must be incorporated into the RFC and, by extension, the
dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65
(9th Cir. 2001).
Here, the ALJ accepted that plaintiff, "[w]ith regard to concentration, persistence[,] or
pace," [ ... ] "has moderate difficulties.'' Tr. at 26. In the RFC, however, the ALJ does not

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address her finding of moderate difficulties with concentration, persistence, or pace, instead
" ... find[ing] that the claimant has the residual functional capacity" [ ... ] "with the following
nonexertional limitations: the claimant can understand and carry out simple instructions in a
work environment with few, if any, workplace changes. The claimant is limited to occasional
and indirect contact with coworkers and the general public." Id. This RFC foimulation does not
incorporate the ALJ' s own findings that plaintiff has moderate difficulties with concentration,
persistence, and pace. "The hypothetical an ALJ poses to a vocational expert, which derives
from the RFC, 'must set out all the limitations and restrictions of the particular claimant.' Thus,
an RFC that fails to take into account a claimant's limitations is defective." Valentine v. Comm'r

Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir 2009) citing Embrey v. Bowen, 849 F.2d 418, 422
(9th Cir.1988). Accordingly, the RFC here is defective, and this is a harmful legal error ..

II

Jv!EDICAL OPINION EVIDENCE
a. Dr. Linda Fishman 's Testimony
Plaintiff avers that the ALJ erred in discounting the opinions of examining psychologist

Dr.

Linda Fishman.

Specifically, plaintiff contends that the ALJ failed to provide legally

sufficient bases supported by substantial evidence in the record to discount Dr. Fishman's
opinion.
The ALJ is responsible for resolving all conflicts and ambiguities in the record. Batson v.

Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). An ALJ can reject the
contradicted opinion of a treating doctor, such as Dr. Fishman, for specific and legitimate
reasons suppmied by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005).

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Here, the ALJ gave Dr. Fishman's opinion little weight because of the discrepancy
between the daily activities perfo1med by plaintiff and the Dr. Fishman's report. The ALJ found
that plaintiffs social and academic activities, including excellent academic performance, albeit
with accommodations, acting in a play for theater class, and regular attendance at Alcoholics
Anonymous ("AA") meetings, were inconsistent with the opinion evidence of Dr. Fishman. Dr.
Fislunan opined that plaintiff "would have difficulties coping with stress in a competitive work
environment and with remembering a schedule and attending or completing a normal work-day
or work-week[,]" and that plaintiff, "was generally unable to interact appropriately with coworkers or customers." Tr. at 29. Fmiher, this finding was contradicted by the medical opinion
of reviewing State agency psychologist Dr. Joshua Boyd, as well as the State agency
psychologist who reviewed the record on reconsideration, Dr. Bill Hennings. Both reported that
plaintiff would "succeed in a mostly static work environment with little or gradual change." Id.
The ALJ cited specific and legitimate reasons for giving the opinion of Dr. Fishman little
weight. Thus, the ALJ committed no error here.

b. Testimony of Treating Jyfental Health Clinicians, Noni Allerdice, A1S, CADL;
Teny LaCross, QA1HA; and Barbara Russell, PlvfHNP

Plaintiff also avers that the testimony of treating mental health clinicians Noni Allerdice,
MS, Terry LaCross, QMHA, and Barbara Russell, PMHNP was en·oneously discounted by the
ALJ. Under 20 C.F.R. § 416.913(d), a non-medical treatment provider, such as a counselor or
therapist, is not considered to be a valid medical source. Non-medical sources of observations to
help the ALJ determine if a claimant is disabled may be rejected by offering any germane
reasons to the opinion. Molina v. As/rue, 674 F.3d 1104, 1112 (9111 Cir. 2012).

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In this case, the ALJ discounted the opinions of Ms. Allerdice and Ms. Russell as they
seemed to be based largely on plaintiff's self-rep01ied symptoms, which the ALJ found not to be
entirely credible. An ALJ may reject a source opinion "if it is based to a large extent on a
claimant's self-repo1is that have been properly discounted as incredible." Tommasetti v. Astrue,
533 F.3d 1035, 1041 (91h cir. 2008). Ms. Allerdice opined that the plaintiff had anxiety when
feeling pressured with tests and had difficulty focusing. Ms. Russell opined that the plaintiff had
anxiety about her school work and her grades. The ALJ properly found that this was inconsistent
with the record, as the plaintiff has excellent grades at her university.
The ALJ rejected Ms. LaCross' opinion because it was not found to be consistent with
the activities of daily living of the plaintiff. Ms. Lacross opined that she did not believe that
plaintiff was capable of completing paperwork or leaving her house, and the ALJ found this
opinion to be inconsistent with the record, specifically with plaintiff's ability to thrive
academically at the University of Oregon ("UO") and regularly attend Alcoholics Anonymous
meetings.
The ALJ discounted the opinions of Mses. Allerdice, Russell, and LaCross on the basis
that their opinions were inconsistent with the record, and the ALJ properly gave these opinions
little weight. These reasons were germane to the determination made by the ALJ. Therefore, the
ALJ did not e!T in discounting these opinions.
Ill

SUBJECTIVE SYlvfPT01\1 TEST/J\10NY

Plaintiff argues that the ALJ failed to provide legally sufficient reasons to reject her
testimony about the extent of her cognitive limitations.

When a claimant's medically

documented impahments reasonably could be expected to produce some degree of the symptoms
complained of, and the record contains no affomative evidence of malingering, "the ALJ can

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reject the claimant's testimony about the severity of ... symptoms only by offering specific, clear
and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). 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.
Sha/ala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific
to permit the reviewing comt to conclude that the ALJ did not arbitrarily discredit the claimant's
testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995). If the "ALJ's credibility
finding is supported by substantial evidence in the record, [the comt] may not engage in secondguessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Plaintiff argues that the ALJ erred by failing to provide clear and convincing reasons
supported by substantial evidence in the record to discredit Plaintiffs symptom testimony.
Specifically, plaintiff takes issue with the way the ALJ used the opinion of Dr. Linda Fishman,
the ALJ' s characterization of the overall record as not supporting plaintiffs testimony, and the
ALJ's discrediting of plaintiffs testimony based on her rep01ted activities of daily living.
Plaintiff characterizes the way the ALJ used the opinion report of Dr. Linda Fishman as
taking one page out of the context of the whole record, and ignoring some of the other parts of
the doctor's opinion that may be useful to plaintiffs position. Plaintiff asserts that using part of
a doctor's opinion report while discounting other parts does not satisfy the clear, convincing, and
substantial evidence standard for evidence that contradicts plaintiffs alleged symptoms.
However, the ALJ is entitled to deference in their interpretation of the evidence under 42 U.S.C.

§ 405(g), as well as 20 C.F.R. § 416.927 and SSR 96-2p. "Substantial evidence is such relevant
evidence as a reasonable mind might, upon consideration of the entire record, accept as adequate
to support a conclusion." 1VfcCarthy v. Apfel, 221 F.3d 1119, 1125 (9 1h Cir. 2000).

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As is

discussed below, the evidence used by the ALJ in deciding to reject the plaintiffs subjective
symptom testimony satisfied the substantial evidence standard, and therefore her interpretation of
the evidence is entitled to deference by the Court.
Plaintiff claims that the ALJ improperly discredited plaintiffs subjective symptom
testimony based on her activities of daily living. Plaintiff testified that she had attended the UO
for over a year at the time of the hearing.

She testified that she received academic

accommodations and was on a three-quarters course load at the time of the hearing. Plaintiff was
able to attend university-level theater classes and to excel at the same, earning no grade lower
than an "A" over the course of two te1ms. The ALJ found this to be inconsistent with plaintiffs
symptom testimony, even when consideration is given to the accommodations granted to
plaintiff by UO. Completion of high school while allegedly disabled has previously been found
by the Ninth Circuit to be a valid reason to discount claimant's subjective symptom testimony,
and the reasoning extends to successful completion of multiple university-level courses with
excellent academic performance. Bayliss, 427 F.3d at 1216. Plaintiff was also able to regularly
attend AA meetings approximately twice per week.
The ALJ cited several specific examples of plaintiffs inconsistent statements. First, the
ALJ noted that despite plaintiffs reported significant mental health symptoms, she "presented
with adequate grooming and hygiene[,] [s]he was able to complete[ ... ] intake fonns and written
test materials independently[,] [she] was oriented to[ ... ] person, place, and day, and her thought
processes were logical, linear, and content was relevant and normal, with no evidence of any
thought disorder, delusions, or hallucinations." Tr. at 27. The ALJ fmiher noted that,
[t]he [plaintiff]'s repmted activities of daily living do not supp011 a finding of disability.
The claimant repmted that she was able to wash dishes, make the bed, fold laundry, and
vacuum. She repmted that she was able to shop for groceries and prepare dinner for her
roommate. The claimant attends Alcoholics Anonymous meetings about twice a week.
She does yoga 2 days a week. She enjoys reading, listening to music, and putting puzzles

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together. She is in school at the University of Oregon studying theatre and will graduate
in the spring. She repmts difficulty being around others, but also indicated that she had
made some acquaintances at school. Fmiher, the record indicates that the claimant had a
part in a play, and was having rehearsals every night. The claimant also reported that she
was 'heavily involved' with organizing a reunion gig of a band she played in 30 years
ago. The claimant has reported significant social limitations related to her mental health
symptoms; however, her reported activities are inconsistent with finding any more than
moderate social limitations.

Tr. at 28.
The ALJ found the inconsistency in plaintiffs subjective symptom statements
patticularly clear in view of plaintiffs perfotmance at school. The ALJ noted that plaintiff "had
been in school over the last year and was doing well. She reported that she would likely be on
the Dean's List at school. This success, while commendable, is wholly inconsistent with a
finding of disability." Tr. at 29. Plaintiff argues that her academic performance and ability to
succeed in social settings are actually evidence of her cognitive impairment, given the part-time
nature of the schooling and accommodations given her. Although that is one plausible way to
interpret the evidence, the record does not compel that conclusion. See Batson, 359 F.3d at 1196
(9th Cir. 2004) (requiring courts to uphold the Commissioner where evidence exists to support
more than one rational interpretation).
The ALJ also took note of plaintiffs ability to resolve many, if not most, of her
symptoms with proper medication and avoidance of alcohol. 1 An unexplained or inadequately
explained failure to follow a prescribed course of treatment that is not attributable via medical
evidence to the plaintiffs mental impairment is a proper ground for evaluating credibility.
lvfolina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012). The plaintiff had repeatedly stopped

1

Additionally, the ALJ took note of plaintiffs self-reporting of limitations from bipolar
disorder II and an obsessive compulsive disorder, despite there being no diagnoses of such in the
record. Tr. at 25. While the plaintiff was hospitalized for psychiatric inpatient treatment several
times, only one to two episodes led to a period of decompensation, none for an extended period
of time.
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her medications and her treatment plans without the order of her doctor, and not because of her
underlying mental issue. The ALJ properly found that the plaintiff could manage her symptoms
when taking her prescribed course of medications and abstaining from alcohol use.
The plaintiff claims that the ALJ's findings regarding plaintiffs testimony are chell'ypicked to reach an adverse conclusion, for example, that the plaintiff was able to excel in school
with accommodations, rather than viewing the acco1mnodations as a limiting factor. Despite the
inconsistencies between plaintiffs reported subjective symptom testimony and the overall
record, however, the ALJ still found some paiis of her testimony to be useful and credible,
including some of those parts that contained inconsistencies.

"Also incongruous with her

reported social limitations is her participation in a play, with nightly rehearsals and then
perfmmances, which involves working closely with cast members and performing in front of an
audience. Neve1iheless, I have limited her to occasional and indirect contact with coworkers and
the general public to account for[ ... ] some of her alleged social limits." Tr. at 28. Thus the ALJ
did not "delve into wide-ranging scrutiny of the claimant's character and apparent truthfulness."
Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). The ALJ
need not totally accept or totally reject the individual's statements. Based on
consideration of all of the evidence in the case record, the adjudicator may find all, only
some, or none of an individual's allegations to be credible. The adjudicator may also find
an individual's statements, such as statements about the extent of functional limitations or
restrictions due to pain or other symptoms, to be credible to a certain degree.
SR 96-7p, at 4.
The ALJ is obligated to provide "specific, clear, and convincing" reasons for discounting
a claimant's subjective symptom testimony, and I am satisfied that the ALJ did so in this case.
The ALJ " ... state[d] specifically which symptom testimony is not credible and what facts in the
record lead to that conclusion." Smolen at 1284. Thus, the ALJ did not err in discounting
plaintiffs subjective symptom testimony.
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IV.

SCOPE OF RE1\1AND

Having determined that the ALJ committed harmful etrnr, I now turn to whether this case
should be remanded for fmther proceedings or an immediate award of benefits.
The Ninth Circuit has developed a three-step process to determine whether a Social
Security appeal should be remanded for futther proceedings or for an immediate award of
benefits. Smolen, 80 F.3d at 1292. At step one, the reviewing court must determine whether the
ALJ made a harmful legal en-or, such as failing to provide legally sufficient reasons for rejecting
evidence. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). At step two, the court
reviews the record as a whole to determine whether the record is fully developed and free from
conflicts, with all essential factual issues resolved. Id

Step two is the most impottant step

because "the decision whether to remand for futther proceedings turns upon the likely utility of
such proceedings." Harman v. Apfel, 211F.3d1172, 1179 (9th Cir. 2000) (citation omitted). If
the record is fully developed, the court proceeds to step three and considers "whether the ALJ
would be required to find the plaintiff disabled on remand if the improperly discredited evidence
were credited as true." Dominguez, 808 F.3d at 407 (citations omitted).
I have determined that the ALJ made a harmful legal error in failing to fully incorporate
plaintiffs moderate limitations in concentration, pace, and persistence into the formulation of the
RFC. Consequently, this limitation was withheld from the hypothetical posed to the VE.
The failure to incorporate all of plaintiffs limitations into the RFC and subsequent VE
hypothetical requires further development of the record. See Samples v. Comm'r of Soc. Sec.
Admin., 466 Fed. Appx. 584, 586 (9th Cir 2012). Thus, there is no need to proceed to step three

of the analysis.

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On remand, the ALJ shall reformulate plaintiffs RFC and pose a new hypothetical to the
VE in order to consider anew whether plaintiff is able to perform past relevant work or other
work existing in the national economy.
CONCLUSION

The Commissioner's decision is REVERSED and REMANDED for fmiher proceedings
consistent with this opinion.
IT IS SO ORDERED.
Dated this '2Btl1day of February 2018.

Ann Aiken
4i;;;o;>
United States District Judge

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