Thomas v. Commissioner Social Security Administration

Filing 23

ORDER: Pursuant to Sentence 4 of 42 U.S.C 405(g), the decision of the Commissioner is reversed and remanded for further proceedings. Signed on 11/7/2017 by Magistrate Judge Jolie A. Russo. (plb) Corrected typographical error and resent NEF on 11/7/2017 (plb).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STACIE DENISE THOMAS,

6:16-cv-2055-JR
Plaintiff,
ORDER

v.
NANCY A. BERRYHILL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
RUSSO, Magistrate Judge:
Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision
denying plaintiff's application for disability insurance benefits.
Plaintiff asserts disability beginning January 22, 2013, due to: bipolar disorder versus
schizoaffective disorder, depressive type, in partial remission; major depressive disorder; panic
disorder with agoraphobia; a history of alcohol and methamphetamine abuse with mild cannabis use
disorder; asthma; and back pain. Tr. 194, 19, 211.

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After a hearing, an administrative law judge (ALJ) determined plaintiff was not disabled.
Plaintiff asserts the ALJ erred in rejecting both medical opinion and plaintiff's testimony in making
her determination.
A.

Plaintiff's Testimony
Plaintiff contends the ALJ erred in finding her symptom testimony inconsistent with the

record and, thus, failed to properly credit her testimony.
Plaintiff indicated on her function report she "can't leave [her] house for very long at a time
and [she gets] very anxious when talking to people." Tr. 227. Plaintiff also indicated she can't stay
out longer than two hours and can't have more than two people at her house at a time or for more
than an hour. Tr. 232. She pointed out it is "[h]ard to talk to people [and she] can't be around people
long or get in depth with them." Id.
Plaintiff testified she can't work because:
Just the thought of going, having to go to a place at a set time, every day, full of
people who are talking to me and asking me things and expecting things from me,
just [is too much to handle].
Tr. 47.
The ALJ rejected plaintiff's description of disabling symptoms and found plaintiff's
statements "concerning the intensity, persistence and limiting effects of these symptoms ... not
entirely consistent with the medical evidence and other evidence in the record." Tr. 23.
Specifically, the ALJ determined the longitudinal medical record reflects general
improvement in plaintiff's symptoms during the period at issue, particularly with medication. Tr.
23. The ALJ noted that plaintiff was functional on risperdone and lorazepam. Tr. 24, 26, 351, 356.
Moreover, the ALJ stated:
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Significantly, aside from the medication management with her primary care
physician, the claimant has had little mental health treatment. She has not
established care with a psychiatrist. She saw a counselor ... for only several sessions
in 2013 (with a number of no-shows ...) and has not seen one since then. Although
it appears a lack of insurance has had something to do with the lack of treatment, she
has been informed about resources and does not appear to have followed up....
Moreover, she last saw her primary care physician, Dr. Lyon, in June 2015 and has
not had treatment since then. She testified at the supplemental hearing that she was
going to try counseling now that she found out her insurance covered it. The
claimant's lack of mental health treatment is not consistent with the severity of her
alleged symptoms and limitations.
Tr. 26, 330, 334, 355, 356.
An unexplained, or inadequately explained, failure to seek treatment or follow a prescribed
course of treatment is sufficient to discredit symptom testimony. Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989). While plaintiff asserts insurance issues were behind such failures, the ALJ noted
several available resources for treatment. Plaintiff also suggests that she is "afraid" of psychiatrists
and therapists, but absent medical evidence that her symptoms themselves resulted in resistance to
treatment, the ALJ need not accept that explanation. See Molina v. Astrue, 674 F.3d 1104, 1114 (9th
Cir. 2012) (Although plaintiff provided reasons for resisting treatment, lack of medical evidence that
the resistance was attributable to the mental impairment indicated it was reasonable for the ALJ to
conclude the level or frequency of treatment was inconsistent with the level of complaints.). The
ALJ did not err in rejecting plaintiff's statements of disabling symptoms to the extent alleged.
B.

Medical Opinion
1.

Paula Belcher, Ph.D.

Dr. Belcher conducted a consultative psychological exam on January 18, 2016. Dr. Belcher
diagnosed schizoaffective disorder, agoraphobia, alcohol use disorder, cannabis use disorder, tobacco
use disorder, and features of OCD and avoidant personality disorder. Tr. 452. Dr. Belcher found
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that plaintiff's ability to interact appropriately with supervisers, co-workers, and the public was
moderately limited by her impairments. Tr. 455. Dr. Belcher further found plaintiff markedly
limited in her ability to respond appropriately to typical work situations and changes in a routine
work setting. Id.
The ALJ rejected Dr. Belcher's assessment regarding typical work situations and routine work
settings because she relied to a large extent on plaintiff's self-report. Tr. 28. The record supports
the ALJ's interpretation of Dr. Belcher's assessment and thus the ALJ did not err in partially rejecting
the opinion. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (A
doctor's opinion premised to a large extent upon the claimant's own account of symptoms and
limitations may be disregarded where those complaints have been properly discounted).
2.

Mark Lyon, M.D.

Dr. Lyon examined plaintiff on four occasions after her alleged on-set date. Tr. 441-47. Of
those examinations, only one examination involved plaintiff’s psychological complaints (anxiety).
Tr. 441. Dr. Lyon opined that plaintiff is unable to remember simple instructions or respond
appropriately on a sustained basis to supervision, co-workers, typical work settings, and changes in
a routine work setting. Tr. 462. Dr. Lyon also assessed marked limitations in social functioning,
maintaining concentration, persistence, or pace. Dr. Lyon further assessed weekly episodes of
decompensation causing plaintiff to withdraw from work or a work-like setting. Tr. 467.
The ALJ rejected this assessment because she determined it was based on limited treatment
notes and contained inconsistencies with other opinions issued within the same time period. Tr. 29.
In one such opinion, Dr. Lyon found plaintiff only moderately limited in the ability to understand
and remember simple instructions. Tr. 459. In another opinion, Dr. Lyon found plaintiff only mildly
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limited in her ability to interact with the public and moderately limited in interactions with
supervisors and co-workers. Tr. 460. The ALJ did not err with respect to Dr. Lyons's opinion.
See Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (internal
inconsistencies are clear and convincing reasons for rejecting a treating physician's opinion).
3.

Joshua Boyd, Psy.D. and Maxine Ruddock, Ph.D.

Drs. Boyd and Ruddock opined that plaintiff would benefit from a supportive supervisor, but
he did not require special supervision. Tr. 93, 107, 112. To the extent plaintiff asserts the ALJ erred
in failing to accept this recommendation, the ALJ appropriately declined to adopt it. See Valentine
v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (ALJ may decline
recommendations).
4.

Interaction With Supervisors

A common thread running through all of the medical opinions, which the ALJ did not reject,
is some degree of limitation in plaintiff's ability to interact with the public, supervisors, and
coworkers. The Commissioner asserts the ALJ accounted for such limitations by restricting plaintiff
to no more than occasional contact with the general public and co-workers in the residual functional
capacity finding (RFC). Tr. 22. The Commissioner argues that this restriction necessarily includes
supervisors. The RFC, as formulated, however, does not appear to account for problems interacting
with supervisors. See, e.g., SSR 85-15:
where a person's only impairment is mental, is not of listing severity, but does
prevent the person from meeting the mental demands of past relevant work and
prevents the transferability of acquired work skills, the final consideration is whether
the person can be expected to perform unskilled work. The basic mental demands of
competitive, remunerative, unskilled work include the abilities (on a sustained basis)
to understand, carry out, and remember simple instructions; to respond appropriately
to supervision, coworkers, and usual work situations; and to deal with changes in a
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routine work setting. A substantial loss of ability to meet any of these basic
work-related activities would severely limit the potential occupational base.
(emphasis added); Cf. DeMello v. Berryhill, 2017 WL 4247984 2 at *5 (E.D.Cal. September 25,
2017 ) (Argument that vocational expert (VE) finding is inconsistent with limitation to no more than
occasional contact with coworkers ignores that job instructions are likely to come from supervisors,
not coworkers, and that plaintiff's RFC does not include any limitations regarding his ability to
interact or accept instructions from supervisors).
The court cannot assume that the ALJ's hypothetical to the VE regarding occasional contact
with the public and coworkers was understood by the vocational expert to include supervisors.
Accordingly, a remand is necessary to address this deficiency.
CONCLUSION
Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision of the Commissioner is reversed
and remanded for further proceedings.

DATED this 7th day of November 2017.
s/Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge

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