Haines v. Commissioner Social Security Administration
Filing
28
Opinion and Order - The Commissioner's decision is not based on proper legal standards or supported by substantial evidence. Therefore, Mr. Haines' request for remand (Dkt. 1 ) is GRANTED. The Commissioner's decision is REVERSED, and this case is REMANDED for further proceedings. Signed on 3/27/2018 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GERALD K. HAINES,
Plaintiff,
Case No. 6:17-cv-30-SI
OPINION AND ORDER
v.
NANCY A. BERRYHILL,1
Commissioner of Social Security,
Defendant.
Katherine Tassinari, and Robert Baron, HARDER, WELLS, BARON & MANNING, P.C., 474
Willamette St., Suite 200, Eugene, OR 97401. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney;
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR
97204-2902; Heather L. Griffith, Special Assistant United States Attorney, OFFICE OF THE
GENERAL COUNSEL, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A,
Seattle, WA 98104-2240. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Gerald Haines seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his application for Supplemental
Security Income (“SSI”). Because the Commissioner’s decision was not based on the proper
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Commissioner
Carolyn W. Colvin as the Defendant in this suit.
OPINION & ORDER – 1
legal standards and the findings were not supported by substantial evidence, the decision is
REVERSED and REMANDED for further proceedings.
STANDARD OF REVIEW
The District Court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g);
Molina v. Astrue, 673 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion” and is more
than a “mere scintilla” of the evidence but less than a preponderance. Id. at 1110-11 (quotation
omitted). The Court must uphold the ALJ’s findings if they “are supported by inferences
reasonably drawn from the record[,]” even if the evidence is susceptible to multiple rational
interpretations. Id. at 1110. The Court may not substitute its judgment for that of the
Commissioner. Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“[A] reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2007) (quotation omitted).
BACKGROUND
A.
Plaintiff’s Application
Born in May 1964, Mr. Haines was 31 years old on the alleged disability onset date and
50 years old at the time of the administrative hearing. AR 87-88. He speaks English, and
indicated he obtained his GED in 1994. AR 189. He alleges disability due to PTSD, depression,
anxiety, and seizure disorder. AR 88.
Mr. Haines previously received SSI benefits following a fully favorable administrative
law judge (“ALJ”) decision on December 15, 2006, in which a prior ALJ found Mr. Haines
OPINION & ORDER – 2
disabled based on dysthymia, posttraumatic stress disorder (“PTSD”), and personality disorder,
beginning August 27, 1999. Tr. 265-69. Mr. Haines’ benefits were terminated when he was
incarcerated for 34 months following a domestic violence conviction. Tr. 47-48; see 20 C.F.R.
§§ 416.1325, 416.1335. Mr. Haines filed a new application for SSI in October 2012, alleging
disability onset on September 15, 1995. AR 87. The application was denied initially and on
reconsideration, and Mr. Haines timely requested a hearing before an ALJ which was held on
January 22, 2015. AR 42-85. After the hearing, ALJ John Michaelson found Mr. Haines not
disabled in a decision dated April 9, 2015. AR 19-35. That decision became the final decision of
the Commissioner when the Appeals Council denied his request for review. Tr. 1-3. Mr. Haines
now seeks review in this Court.
B.
The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. §
432(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v.
Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. § 416.920;
Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §
416.920(a)(4). The five-step sequential process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R. §
416.920(a)(4)(i). This activity is work involving significant mental or
physical duties done or intended to be done for pay or profit. 20 C.F.R. §
419.910. If the claimant is performing such work, she is not disabled
within the meaning of the Act. 20 C.F.R. § 416.920(a)(4)(i). If the
claimant is not performing substantial gainful activity, the analysis
proceeds to step two.
OPINION & ORDER – 3
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. § 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” if it significantly limits the claimant’s physical
or mental ability to do basic work activities. 20 C.F.R. § 416.921(a).
Unless expected to result in death, this impairment must have lasted or be
expected to last for a continuous period of at least 12 months. 20 C.F.R. §
416.909. If the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(iii). If the
impairment does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate medical and
other relevant evidence to assess and determine the claimant’s “residual
functional capacity” (“RFC”). This is an assessment of work-related
activities that the claimant may still perform on a regular and continuing
basis, despite any limitations imposed by his or her impairments. 20
C.F.R. §§ 416.920(e), 416.945(b)-(c). After the ALJ determines the
claimant’s RFC, the analysis proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R. §
416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant
work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c). If the claimant
cannot perform such work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
OPINION & ORDER – 4
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. § 416.966 (describing
“work which exists in the national economy”). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). If, however, the Commissioner proves that
the claimant is able to perform other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d
at 1099.
C.
The ALJ’s Decision
The ALJ performed the sequential analysis. At step one, the ALJ found Mr. Haines had
not engaged in substantial gainful activity since October 31, 2012, his application date. AR 21.
At step two, the ALJ concluded that Mr. Haines had the following severe impairments: history of
PTSD with anxiety and depression. Id. At step three, the ALJ determined that Mr. Haines did not
have an impairment or combination of impairments that met or equaled a listed impairment.
AR 22. The ALJ next assessed Mr. Haines’ RFC and found that he could perform a full range of
work at all exertional levels with the following non-exertional limitations: “[he] would need to
avoid concentrated exposure to unprotected heights, moving machinery, and similar hazards . . .
[and] is also limited to simple, repetitive, routine tasks requiring no more than occasional
interaction with supervisors, co-workers, and the general public.” AR 24. At step four, the ALJ
found that Mr. Haines did not have any past relevant work. AR 34. At step five, the ALJ
concluded that Mr. Haines could perform jobs that exist in significant numbers in the national
economy, including battery stacker, scrap sorter, and hand packager. Id. Accordingly, the ALJ
found Mr. Haines not disabled. AR 35.
OPINION & ORDER – 5
DISCUSSION
Mr. Haines contends the ALJ made the following legal errors in evaluating his case:
(a) failing to properly develop the record regarding his mental impairments; (b) failing to provide
legally sufficient reasons to discredit his symptom testimony; and (c) improperly discrediting
testimony from a lay witness.
A.
ALJ’s Duty to Develop the Record
An ALJ has “a special duty to fully and fairly develop the record and to assure that the
claimant’s interests are considered . . . even when the claimant is represented by counsel.”
Celeya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
Although Mr. Haines was represented by counsel at his administrative hearing, he nevertheless
argues that the ALJ erred by failing to develop the record because the ALJ did not order
neuropsychological assessment. Pl.’s Br. 8-9. Mr. Haines argues that several factors mitigate in
favor of the need for neuropsychological testing on this record: first, his previous benefits were
terminated due to the length of his incarceration, rather than an improvement in his condition;
second, a prior ALJ awarded benefits, in part, because “multiple medical providers . . . indicated
that Mr. Haines was unable to work competitively”; third, because the consultative psychologist
of record in Mr. Haines’ instant claim recommended additional “personality testing”; and finally,
because evidence of record demonstrates severe mental impairments, including low scores for
Global Assessment of Functioning (“GAF”) and a mental residual functional capacity
assessment accepted into the record by the Appeals Council that the ALJ did not consider. Id.
The Commissioner argues that, as a threshold matter, Mr. Haines’ argument is inapposite
because the issue of additional neuropsychological testing was not raised at the administrative
OPINION & ORDER – 6
hearing: “[b]y not arguing to the agency that the record needed further development . . . Plaintiff
implicitly took the position at the hearing that the record was sufficiently developed . . . .” Def.’s
Br. 4 (citing Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended)). In Meanel, the
claimant’s counsel did not provide vocational statistical evidence to the ALJ or Appeals Council,
and the Ninth Circuit determined that because Meanel was represented by counsel, he therefore
waived introduction of that evidence. Id.
Recent Ninth Circuit decisions, however, have taken a somewhat more lenient approach.
For example, a recently published decision found that although the claimant did not raise an
issue regarding an apparent conflict between VE testimony and jobs described in the Dictionary
of Occupational Titles (“DOT”), the claimant was allowed to raise the issue, in part, because he
raised it to the Appeals Council. See Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017).
The Lamear court implied that even if the plaintiff had not raised the issue at the Appeals
Council, it could be raised at the district court: “more importantly, our law is clear that a
counsel’s failure does not relieve the ALJ of his express duty to reconcile apparent [evidentiary]
conflicts . . . .” Id. (citing Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015)) (emphasis
added). On the other hand, the Ninth Circuit also recently held that although an ALJ is required
to inquire about an apparent conflict between a VE’s testimony and the DOT whether or not a
claimant raises the issue, the duty does not extend to apparent conflicts with other vocational
publications. Shaibi v. Berryhill, 883 F.3d 1102, 1109-10 (9th Cir. 2017). The Shaibi court
further noted that another case cited by Mr. Haines, Sims v. Apfel, 530 U.S. 103, 112 (2000), did
not apply because Sims dealt only with the issue of whether a claimant must present all relevant
issues to the Appeals Council, rather than the ALJ, in order to preserve them. Shaibi, 883 F.3d
at 1109.
OPINION & ORDER – 7
Based on the entirety of the record, including Mr. Haines’ prior ALJ decisions and in
particular the “fully favorable” decision of December 15, 2006, the Court finds the issues
presented in Meanel, Lamear, and Shaibi distinguishable from the case at bar. These cases dealt
with a commonly litigated issue in SSA litigation: whether the ALJ properly resolved a conflict
between VE testimony and the DOT. Here, the crux of the request to further develop the record
is quite different.
During the hearing, it became apparent that the ALJ had not reviewed the medical
records that provided the basis for the 2006 decision finding Mr. Haines disabled. See AR 82-84.
The ALJ indicated that the Social Security Administration (“SSA”) had attempted, but was
unable, to “access” the records. AR 82. The ALJ further indicated that he would “look into”
whether a formal attempt had been made to obtain the records, and agreed to hold the record
open for 15 days, although the medical records in question were never located. AR 83-84, 270.
In the December 15, 2006 decision awarding SSI benefits, the prior ALJ determined that
Mr. Haines’s had the severe impairments of dysthemia, PTSD, and personality disorder with
antisocial and dependent features, and that his symptoms met or equaled three separate listings:
§§ 12.04 (depressive disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.08
(personality and impulse-control disorders). AR 267-68; see 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.00. The prior ALJ found that Mr. Haines had been disabled since 1999; that “numerous
psychiatric/psychological evaluations were undertaken and the highest global functioning
achieved by Mr. Haines was 50, which indicated a serious impairment in social, occupational, or
school functioning;” and that “his symptoms were assessed to be chronic and severe enough to
account for his failure to do well in the workplace.” AR 268. Notably, the 2006 decision’s ALJ
OPINION & ORDER – 8
indicated that she had “adopted the essential narrative of the first [2005] [ALJ] decision issued in
this case, but . . . reached a different conclusion.” AR 268.
The ALJ in the instant matter acknowledged that the 2006 ALJ’s decision was favorable,
but explained at the hearing that although the prior ALJ incorporated the 2005 decision’s
narrative, he did not have access to the first decision, and as noted above, was unable to obtain
the relevant medical records. AR 83. The 2005 decision, however, was made part of the record
following the hearing, but prior to the instant ALJ’s decision. AR 270, 281-95. The 2005
decision summarized medical records reflecting significant mental health treatment for diagnoses
including PTSD, panic disorder, dysthymic disorder, personality disorder, and various substance
addictions. See AR 284-90. Despite those findings, the instant ALJ did not describe the nature of
the evidentiary record in the 2005 or 2006 decision, other than to note Mr. Haines’ condition
improved “when he went to jail and became sober from multiple substances,” and that he would
have liked to reopen the 2006 decision and deny benefits. AR 30. However, the ALJ overlooked
the fact that the 2006 ALJ found Mr. Haines was not using substances at the time of her decision,
as evinced by “numerous [urinalysis] studies which returned negative for all drugs.” AR 268.
Accordingly, the instant ALJ had notice, prior to his decision, that Mr. Haines was
previously adjudged to meet or equal three separate listings, including Listing 12.08 for
personality disorder. Despite such notice, the ALJ disregarded without comment the opinion of
consultative psychologist Jennifer Metheny, Ph.D., who recommended further personality testing
because she felt “there may also be personality factors involved,” in addition to her diagnoses of
PTSD and depression. AR 351-52. Dr. Metheny also opined that the basis of her PTSD diagnosis
was Mr. Haines’ symptoms of angry outbursts, difficulty concentrating, and hypervigilance,
which caused him “clinically significant distress.” AR 351. The ALJ purported to accord
OPINION & ORDER – 9
Dr. Metheny’s opinion “significant weight,” but it appears he did so only insofar as the doctor
assessed “mild to moderate issues with concentration and some difficulty with delayed recall,” in
a mental status exam. AR 32 (internal quotation marks omitted), 351.
Thus, the instant case presents a unique amalgam of circumstances—the 2006 ALJ
decision granting benefits, Mr. Haines’ subsequent incarceration, the SSA’s inability to locate
the prior medical evidence, the instant ALJ’s assertion that he did not read the 2005 ALJ
decision which provided the basis for the 2006 decision, and Dr. Metheny’s recommendation for
further testing—which, in combination, strongly suggests that the record was not sufficiently
developed. Whereas the Meanel court imposed the waiver rule because Meanel did not raise the
issue of sufficiency of the evidence at the ALJ hearing or to the Appeals Council, Mr. Haines’
counsel repeatedly requested the ALJ attempt to obtain the missing medical records of the prior
favorable decision. Supra. Mr. Haines’ counsel also provided the ALJ with the written decision
of the prior 2005 denial, as well as other documents related to the earlier claim. AR 270. Further,
Mr. Haines’ counsel submitted new evidence material to Mr. Haines’ mental impairments posthearing, which were incorporated into the record by the Appeals Council. See AR 2, 432-36; see
also Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1163 (9th Cir. 2012). Accordingly,
although Mr. Haines’ counsel did not explicitly request a neuropsychological examination before
the ALJ or the Appeals Council, he adequately preserved the issue that the record was inadequate
as to Mr. Haines’ mental impairments by repeatedly requesting that the ALJ attempt to locate the
missing medical records, and then by providing a supplemental mental assessment to the Appeals
Council. See Sims, 530 U.S. at 111; Lamear, 865 F.3d at 1206.
The Commissioner further contends that even if the issue was not waived, the ALJ had no
duty to obtain an additional examination, as the record was not ambiguous or inadequate to allow
OPINION & ORDER – 10
for a proper evaluation. Def.’s Br. 4. In support, the Commissioner maintains that the medical
opinions of record did not opine that Mr. Haines was more limited than the ALJ determined. The
Court disagrees. Although treating physician Mary Pugsley, M.D., provided an opinion which
stated Mr. Haines was on an “effective combination” of medications, the statement must be read
in context: the opinion was provided in support of Mr. Haines’ request for special
accommodations for his mental impairments. AR 368-69; see, e.g., Holohan v. Massanari, 246
F.3d 1195, 1205 (9th Cir. 2001) (medical source statements should be read in the context of the
overall diagnostic picture). Thus, even if his medications were “effective,” the doctor still
requested he be allowed to sit near a doorway. Although the ALJ found that such an
accommodation did not “offer additional restrictions” beyond the RFC, the allowance to leave
the classroom due to panic attacks or other PTSD symptoms is certainly similar to the
“unscheduled breaks” in a workplace environment, a limitation which the ALJ did not include in
Mr. Haines’ RFC.
Further, for the reasons stated above, although the ALJ purported to accord
Dr. Metheny’s medical assessment significant weight, he failed to adopt the doctor’s
recommendation to seek further evaluation of Mr. Haines’ potential personality disorder, despite
a prior ALJ’s finding that he was presumptively disabled based on meeting or equaling Listing
12.08. Finally, the Court notes that Russell Geoffrey, M.D. diagnosed Mr. Haines with
“cognitive disorder, NOS” in August 2014, which the ALJ appears to have overlooked, as he did
not comment on the diagnosis in his decision. AR 28, 389.
The post-hearing evidence also supports the need for further evaluation of Mr. Haines’
mental impairments. Following two months of counseling, licensed professional counselor
(“LPC”) Brad Sigafoose submitted a mental RFC worksheet which was accepted into the record
OPINION & ORDER – 11
by the Appeals Council. Mr. Sigafoose indicated that Mr. Haines had numerous marked
limitations in sub-categories of the following areas: sustained concentration and persistence,
social interaction, and adaptation. AR 432-36. Mr. Sigafoose noted that in addition to PTSD, Mr.
Haines has panic disorder with agoraphobia. Although Mr. Sigafoose is not an “acceptable
medical source” under the regulations, his opinion “may, under certain circumstances, properly
be determined to outweigh the opinions from a medical source,” including the reviewing agency
physicians. Social Security Ruling (“SSR”) 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006).
The opinion of Mr. Sigafoose supports Mr. Haines’ contention that the ALJ’s development of the
record was incomplete, as it stands in stark contrast to the minimal mental limitations set forth by
the agency reviewing physicians. Accordingly, although the Commissioner’s contention that no
medical source opined that Mr. Haines’ was more limited than the ALJ found is technically
accurate, Mr. Sigafoose’s opinion is nevertheless relevant.
The Court acknowledges that the SSA is not required to bear the expense of a
consultative examination for every claimant. “Some kinds of cases, however, do normally
require a consultative examination, including those in which additional evidence needed is not
contained in the records of the claimant’s medical sources.” Reed v. Massanari, 270 F.3d 838,
842 (9th Cir. 2001) (citation and internal brackets and quotation marks omitted). Based on the
totality of unique circumstances in this case, the record was incomplete at the time of the
decision. The Court agrees with Mr. Haines that the appropriate remedy is to remand this case
for further development of the record, including a new neuropsychological examination (or
examinations) to screen Mr. Haines for any personality and cognitive disorders.
OPINION & ORDER – 12
B.
Subjective Symptom Testimony
There is a two-step process for evaluating the credibility of a claimant’s testimony about
the severity and limiting effect of the claimant’s symptoms. Vazquez v. Astrue, 572 F.3d 586,
591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which could reasonably be expected to produce
the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th Cir.
2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so,
the claimant “need not show that her impairment could reasonably be expected to cause the
severity of the symptom she has alleged; she need only show that it could reasonably have
caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 503 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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) (citing
Bunnell, 947 F.2d at 345-46).
The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons
for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may
not, however, make a negative credibility finding “solely because” the claimant’s symptom
OPINION & ORDER – 13
testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d
at 883.
The ALJ provided a list of inconsistencies between Mr. Haines’ statements at hearing,
and his prior reports to treatment providers and those in his application materials. On review, the
Court finds that while some of the rationales provided pass muster under the rigorous clear-andconvincing legal standard, others were insufficient.
For example, the ALJ found that although Mr. Haines indicated he took a benzodiazepine
(clonazepam) for an alleged seizure disorder, his prescriber indicated he took alprazolam and
clonazepam for chronic anxiety. The ALJ did not acknowledge that in the 2006 decision, the
ALJ noted that, “evidence shows that in addition to Depakote, he was being prescribed
[alprazolam] for a seizure disorder.” AR 268. However, to the extent the ALJ noted the
inconsistency as grounds to reject Mr. Haines’ allegations of an ongoing seizure disorder, the
ALJ’s interpretation of the evidence was rational and based on substantial evidence, and is
therefore affirmed. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (ALJ’s decision
should be upheld even where it is susceptible to more than one rational interpretation).
The ALJ also found that Mr. Haines’ reports of panic attacks were inconsistent with his
ability to attend community college five days per week, which involves riding a public bus.
AR 29. Contrary to the ALJ’s assertion that the record contains no evidence to corroborate his
panic attack allegations, however, his case manager at the post-incarceration reentry services
noted that Mr. Haines had unusual behavior and fears, is easily overwhelmed, handles stress
poorly, and tends to withdraw from people. AR 235. Also, Mr. Haines told Dr. Metheny that he
has great difficulty taking the bus because he has panic attacks around others, and expressed to
OPINION & ORDER – 14
the ALJ that he copes with riding the bus each day by heavily medicating himself. AR 67. As
such, the ALJ’s finding was not clear and convincing.
The ALJ found that Mr. Haines’ credibility was diminished because he told a counselor
that he takes citalopram irregularly because it interfered with his sexual performance, while he
told his primary care provider that he took it regularly. AR 29-30. It indeed appears that Mr.
Haines has provided different providers different information about whether he takes citalopram
for depression regularly or intermittently, and there is evidence of record that he has not taken
citalopram consistently, which could account for some of his symptom allegations. See AR 30.
The ALJ’s finding was not erroneous.
The ALJ determined that Mr. Haines’ provided inconsistent reports about whether his
benzodiazepine use caused side effects. AR 29. At the hearing, Mr. Haines told the ALJ that his
side effects included confusion, exhaustion, and unclear thinking, which he experienced “all the
time.” AR 63. However, Mr. Haines did not report the side effects of confusion, exhaustion, or
unclear thinking to providers or in his application materials. See, e.g., AR 22 (listing only
citalopram as causing sexual side effects). While the Court acknowledges the discrepancy, it is
unclear that Mr. Haines ever alleged that confusion, exhaustion, or unclear thinking affected his
ability to perform work activity. Accordingly, the ALJ did not err in identifying the
inconsistency.
The ALJ also opined that there was evidence of secondary gain motivation based on the
purported discrepancy between Mr. Haines’ report to the SSA that his depression had worsened
in 2013, and his contemporaneous report to a provider that he had gone on a fishing trip with his
case manager, and reported no increase in depressive symptoms. AR 29, 358. Indeed, Mr. Haines
did not report any increase in depression symptoms at the May 2013 clinical visit despite telling
OPINION & ORDER – 15
the SSA that his depression had significantly worsened in February 2013. Although Mr. Haines
argues that his symptoms improved during the fishing trip, the ALJ did not err to find his
statements inconsistent. Burch, 400 F.3d at 680-81.
The ALJ also noted secondary gain motivation was evinced by Mr. Haines’ reports of
suicidal ideation to the SSA in May 2013. AR 29. The ALJ found the reports were not credible
because Mr. Haines told Dr. Metheny he only occasionally had suicidal thoughts. AR 245, 351.
On balance, the Court does not discern a material difference between Mr. Haines’ reports to the
SSA and Dr. Metheny about the frequency of his suicidal thoughts. The ALJ further found that
Mr. Haines’ allegation was further belied by his failure to seek psychiatric treatment from May
2013 until July 2014. AR 29. However, the record reflects that Mr. Haines had a counseling
session during that time period, wherein he indicated reluctance to sign a release of information
because he feared his prescriber would discontinue his benzodiazepines if he learned of Mr.
Haines’ suicidal ideation. AR 375. As such, the record reflects that Mr. Haines had suicidal
ideation during that time period, contrary to the ALJ’s finding. The finding was erroneous.
The ALJ additionally found that Mr. Haines’ credibility was undermined by his sporadic
work history coupled with his ability to work during his incarceration. The finding is not clearand-convincing: Mr. Haines was previously found disabled by an ALJ from 1999 through 2010.
Subsequently, he was incarcerated for nearly three years. AR 261. Although it appears Mr.
Haines was able to perform some work while he was in prison, the ALJ failed to evaluate how
often he worked, what the work entailed, and if he was able to perform his duties successfully.
Although the Court acknowledges the Commissioner’s contention that his ability to perform
some work suggests he is capable of more, the contention is mitigated by the fact that claimants
with mental impairments often function better in highly-controlled settings, and such
OPINION & ORDER – 16
improvement may not be transferable to a normal workplace. See, e.g., Garrison v. Colvin, 759
F.3d 995, 1017 (9th Cir. 2014). Accordingly, the ALJ’s finding was not clear-and-convincing.
Finally, the ALJ noted that Mr. Haines’ activities of daily living demonstrated that he was
not as limited as he alleged. AR 30. The ALJ noted that Mr. Haines’ endorsed the ability to
perform household chores, use public transit, watch television without problems in attention or
concentration, attend one class per day, pay his rent monthly, and shop for himself. Although
Mr. Haines has a different interpretation of the record, the ALJ’s findings were specific, rational,
and are supported by substantial evidence. The findings are, therefore, upheld. Burch, 400 F.3d
at 680-81.
Overall, although not all of the ALJ’s rationales for finding Mr. Haines’ symptom
allegations met the clear-and-convincing legal standard, the ALJ nonetheless provided sufficient
reasons to support his overall credibility determination. Carmickle v. Comm’r, Soc. Sec. Admin.,
533 F.3d 1155, 1163 (9th Cir. 2008) (holding that although the ALJ’s credibility determination
included invalid findings, the finding that Carmickle was less than fully credible overall
remained valid).
C.
Lay Witness Testimony
An ALJ may not reject the competent testimony of “other” medical sources without
comment. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the competent
testimony of “other” medical sources, the ALJ need only give “reasons germane to each witness
for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r
of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). In rejecting such testimony, the ALJ need not
“discuss every witness’s testimony on an individualized, witness-by-witness basis. Rather, if the
ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to
OPINION & ORDER – 17
those reasons when rejecting similar testimony by a different witness.” Id. at 1114. The ALJ also
may “draw inferences logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982).
An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,
either individually or in the aggregate.” Molina, 674 F.3d at 1115 (quoting Nguyen, 100 F.3d
at 1467 (9th Cir. 1996)). This error may be harmless “where the testimony is similar to other
testimony that the ALJ validly discounted, or where the testimony is contradicted by more
reliable medical evidence that the ALJ credited.” See id. at 1118-19. Additionally, “an ALJ’s
failure to comment upon lay witness testimony is harmless where ‘the same evidence that the
ALJ referred to in discrediting [the claimant’s] claims also discredits [the lay witness’s] claims.’”
Id. at 1122 (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). Where an ALJ
ignores uncontradicted lay witness testimony that is highly probative of the claimant’s condition,
“a reviewing court cannot consider the error harmless unless it can confidently conclude that no
reasonable ALJ, when fully crediting the testimony, could have reached a different disability
determination.” Stout, 454 F.3d at 1056.
Mr. Haines assigns error to the ALJ’s evaluation of Tony Meyer, his former case
manager at a post-incarceration reentry services provider in Eugene, Oregon. See AR 33, 229-36.
The ALJ implied that Mr. Meyer’s assessment was not probative because he only knew
Mr. Haines for four months. AR 33. However, as a case manager, Mr. Meyer had intensive
exposure to Mr. Haines for nearly two months – eight hours per day, four days per week.
AR 229. Such an intense period of contact likely provided Mr. Meyer an excellent opportunity to
observe Mr. Haines’ functional limitations during that time period. Accordingly, it was error for
the ALJ to summarily dismiss Mr. Meyer’s statements based on the duration of contact. The
OPINION & ORDER – 18
ALJ’s only other express finding was that Mr. Meyer’s statement that Mr. Haines was “frustrated
he cannot afford haircuts” was inconsistent with Mr. Haines’ report that “he requires reminders
for haircuts.” AR 33, 223, 230. To the extent the statements were even arguably inconsistent, the
inconsistency is too minor to sustain the ALJ’s wholesale rejection of Mr. Meyer’s lay
testimony. On remand, the ALJ must reevaluate Mr. Meyer’s statements based on the record as a
whole.
D.
Remand for Further Proceedings
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). 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. Id. at 1100. A
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 Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison, 759 F.3d at 999. The Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
OPINION & ORDER – 19
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimant’s allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
For the reasons described herein, the ALJ’s decision included reversible errors. However,
because the record is not adequately developed in this case as to the extent and severity of Mr.
Haines’ mental impairments, further proceedings are required. Specifically, the SSA shall
provide adequate consultative examination to thoroughly assess Mr. Haines’ mental
impairments, including any personality or cognitive disorders which may affect his ability to
satisfactorily perform in a regular work setting. Further, the ALJ must reevaluate the written
statements provided by lay witness Tony Meyer and provide legally sufficient reasons for
rejecting them, if applicable.
OPINION & ORDER – 20
CONCLUSION
The Commissioner’s decision is not based on proper legal standards or supported by
substantial evidence. Therefore, Mr. Haines’ request for remand (Dkt. 1) is GRANTED. The
Commissioner’s decision is REVERSED, and this case is REMANDED for further proceedings.
DATED this 27th day of March, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
OPINION & ORDER – 21
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