Georges v. Commissioner Social Security Administration
Filing
17
OPINION & ORDER: The Commissioners decision is reversed and remanded for an immediate award of benefits. Signed on 5/4/2018 by Judge Marco A. Hernandez. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KEVIN ROGER GEORGES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
Tim Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
1 – OPINION & ORDER
No. 6:17-cv-00475-HZ
OPINION & ORDER
Billy Williams
United States Attorney
Renata Gowie
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Michael Howard
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Kevin Roger Georges brings this action for judicial review of the
Commissioner’s final decision denying his application for Supplemental Security Income
(“SSI”) disability benefits under Title XVI of the Social Security Act. The Court has jurisdiction
under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). Because the Administrative
Law Judge’s (“ALJ”) decision contained legal errors and was not supported by substantial
evidence, the Court REVERSES and REMANDS this case for an immediate award of benefits.
BACKGROUND
Plaintiff was born on January 28, 1963, and was fifty years old on December 17, 2013,
the amended alleged disability onset date. Tr. 41, 247.1 Plaintiff has an eleventh grade education
and past relevant work experience as a cable line assembler. Tr. 30–31. Plaintiff’s SSI
application was initially denied on February 19, 2014, and upon reconsideration on May 29,
2014. Tr. 163–172. A hearing was held before ALJ Katherine Weatherly on December 10, 2015.
Tr. 37. ALJ Weatherly issued a written decision on January 20, 2016, finding Plaintiff not
1
Citations to “Tr.” refer to the administrative transcript record filed here as Docket No. 9.
2 – OPINION & ORDER
disabled. Tr. 20–32. The Appeals Council declined review, rendering ALJ Weatherly’s decision
the Commissioner’s final decision that Plaintiff now challenges in this Court. Tr. 1–6.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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.
§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
At the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines
whether the claimant has a “medically severe impairment or combination of impairments.”
Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not
disabled.
At step three, the Commissioner determines whether claimant’s impairments, singly or in
combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(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, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
3 – OPINION & ORDER
claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date. Tr. 22.
At step two, the ALJ determined that Plaintiff has the following severe impairments:
“bipolar I disorder and attention deficit/hyperactivity disorder” (“ADHD”). Tr. 22.
At step three, the ALJ determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments. Tr. 23.
Before proceeding to step four, the ALJ determined that Plaintiff has the RFC to perform
“a full range of work at all exertional levels with the following nonexertional limitations: he is
limited to understanding, remembering, and carrying out simple, routine, repetitive tasks. He can
have occasional contact with coworkers or the public, but not in close proximity.” Tr. 25.
At step four, the ALJ determined that Plaintiff is unable to perform any past relevant
work. Tr. 30–31.
At step five, the ALJ determined that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform, including: laundry worker; linen room
attendant; and cleaner. Tr. 31. Accordingly, the ALJ found that Plaintiff was not disabled within
the meaning of the Social Security Act. Tr. 32.
4 – OPINION & ORDER
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the Commissioner’s
findings are based on legal error or are not supported by substantial evidence in the record as a
whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial evidence means 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.” Id. (internal quotation marks omitted). Courts
consider the record as a whole, including both the evidence that supports and detracts from the
Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where
the evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be
affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks omitted); see also Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a
denial, [the court] may not substitute [its] judgment for the ALJ’s.”) (internal quotation marks
omitted).
DISCUSSION
Plaintiff raises multiple challenges to the ALJ’s decision. First, he argues that the ALJ
improperly rejected his symptom testimony. Second, Plaintiff contends the ALJ erred by
improperly disregarding the medical opinions of Dr. Marianne Straumfjord, Dr. William
Trueblood, and Marta Richards. As a result of these alleged errors, Plaintiff argues that the
hypotheticals that the ALJ posed to the VE at the administrative hearing were incomplete
because they did not include limitations from the improperly rejected testimony. Accordingly,
Plaintiff maintains that the ALJ erred at step five by determining that Plaintiff was disabled
based on an RFC that did not account for all of his limitations.
//
//
5 – OPINION & ORDER
I.
Plaintiff’s Testimony
The ALJ rejected Plaintiff’s testimony primarily based on two findings. First, that
Plaintiff’s symptoms improved and stabilized when he attended medical appointments and took
his medication. Second, the ALJ highlighted Plaintiff’s failure to adhere to prescribed treatment
to support her decision to disregard his testimony. The Court finds that the ALJ erred in relying
on both bases to reject Plaintiff’s testimony.
A.
Applicable Law
The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591.Once a
claimant shows an underlying impairment and a causal relationship between the impairment and
some level of symptoms, clear and convincing reasons are needed to reject a claimant’s
testimony if there is no evidence of malingering. Carmickle v. Comm’r, 533 F.3d 1155, 1160
(9th Cir. 2008) (quotation and citation omitted) (absent affirmative evidence that the plaintiff is
malingering, “where the record includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on clear and convincing reasons”); see
also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted)
(the ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether
there is “objective medical evidence of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms alleged”; and second, if the claimant has
presented such evidence, and there is no evidence of malingering, then the ALJ must give
“specific, clear and convincing reasons in order to reject the claimant’s testimony about the
severity of the symptoms”). An adverse credibility determination must include specific findings
supported by substantial evidence and a clear and convincing explanation.
6 – OPINION & ORDER
When determining the credibility of a plaintiff's complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff’s “daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of treatment for excessive pain. Id.
The ALJ may consider many factors in weighing a claimant’s
credibility, including (1) ordinary techniques of credibility
evaluation, such as the claimant’s reputation for lying, prior
inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid; (2)
unexplained or inadequately explained failure to seek treatment or
to follow a prescribed course of treatment; and (3) the claimant’s
daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks omitted).
As the Ninth Circuit explained in Molina;
In evaluating the claimant’s testimony, the ALJ may use ordinary
techniques of credibility evaluation. For instance, the ALJ may
consider inconsistencies either in the claimant’s testimony or
between the testimony and the claimant’s conduct, unexplained or
inadequately explained failure to seek treatment or to follow a
prescribed course of treatment, and whether the claimant engages
in daily activities inconsistent with the alleged symptoms[.] While
a claimant need not vegetate in a dark room in order to be eligible
for benefits, the ALJ may discredit a claimant’s testimony when
the claimant reports participation in everyday activities indicating
capacities that are transferable to a work setting[.] Even where
those activities suggest some difficulty functioning, they may be
grounds for discrediting the claimant's testimony to the extent that
they contradict claims of a totally debilitating impairment.
674 F.3d at 1112–13 (citations and internal quotation marks omitted).
//
//
7 – OPINION & ORDER
B.
Plaintiff’s Testimony
At the administrative hearing, Plaintiff testified that he suffered from extreme mood
swings. Tr. 46. He said, “[o]ne minute I would, you know, feel like Superman. I was going to get
a job, you know, and that. And the next minute, I would go down to my lowest where I couldn’t
get out of bed.” Id. He also stated that he was very forgetful from week to week depending on his
medication. Tr. 47. Plaintiff relies on his wife to manage his medication as well as to remind him
to take his medication and to attend medical appointments. Tr. 48, 50. Plaintiff also needs to be
reminded to eat, bathe, change his clothes, and complete other basic tasks. Tr. 50. Additionally,
Plaintiff stated that his bipolar condition causes him to either sleep or stay awake for multiple
days in a row. Tr. 51. Moreover, Plaintiff testified that he was paranoid, heard voices in his head,
had trouble learning new things, and suffered from deficits in his short-term memory and
concentration. Tr. 52. Plaintiff’s forgetfulness and inattention progressed such that his family
members no longer trust him to remain at home alone with his grandchildren and dogs out of fear
that he would forget to attend to their needs and leave doors and gates open. Tr. 53–55. As the
result of these conditions, Plaintiff stated that “the littles thing” will make him “angry and
frustrated.” Tr. 53.
Plaintiff also submitted a function report on January 31, 2014, in which he wrote about
the severity of his symptoms. Tr. 259–66. When prompted to list conditions that limit his ability
to work, Plaintiff wrote: confusion; physical pain from depression; manic, restless; missing work
due to depression and not able to get up; sleepless nights; and ADHD. Tr. 259. Depending on
Plaintiff’s mood, he would sometimes forego meals and stay in bed all day. Tr. 261. Other days,
he would attempt to do dishes, laundry, and mow the lawn. Tr. 262. Plaintiff stated that those
tasks would usually take him either all day or a couple of days to complete because he “can’t
8 – OPINION & ORDER
focus to finish a task.” Tr. 262. Furthermore, Plaintiff wrote that he gets manic with “just about
any stress,” cannot manage accounts or bills, keeps meal preparation as simple as possible, and
leaves the house as little as possible. Tr. 262–64. Likewise, he wrote that he cannot “retain
instructions” and his mania makes it “hard to reason with people.” Tr. 264.
C.
The ALJ’s Treatment of Plaintiff’s Testimony
The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms,” but Plaintiff’s “statements concerning intensity,
persistence and limiting effects of these symptoms are not entirely credible[.]” Tr. 27. The ALJ
rejected Plaintiff’s subjective symptom testimony primarily because Plaintiff’s symptoms
improved with treatment and medication. Particularly, the ALJ noted that when Plaintiff attended
treatment appointments and took his medication, his mood, anxiety, and mental functioning
improved and stabilized. Tr. 27–28. Further, ALJ discussed Plaintiff’s “intermittently poor
attendance” regarding appointments and Plaintiff’s repeated failure to consistently take his
medication. Tr. 27. The ALJ added that when Plaintiff restarted “the prescriptions and
adjustments over the next few months into late 2014, he appeared to stabilize and he presented as
cleaner and less irritable.” Tr. 27. The ALJ noted that on several occasions, Plaintiff reported that
medication was helpful for managing his conditions and that medical providers observed
significant improvements in Plaintiff’s appearance and condition when he adhered to prescribed
treatment. Tr. 27–28. Based on these findings, the ALJ wrote: “It is reasonable to expect that
with ongoing treatment, the overall stability demonstrated in these records when complaint [sic]
will continue.” Tr. 28.
//
//
9 – OPINION & ORDER
D.
Effectiveness of Treatment
The Court finds that the ALJ erred by using evidence of intermittent improvement in
Plaintiff’s condition and his failure to adhere to prescribed treatment to discredit his subjective
symptom testimony. In the mental health context, “[c]ycles of improvement and debilitating
symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out
a few isolated instances of improvement over a period of months or years and to treat them as a
basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017
(9th Cir. 2014) (citing Holohan v. Massanari, 246 F.3d 1194, 1205 (9th Cir. 2001)). As the
Ninth Circuit explained in Garrison:
Reports of “improvement” in the context of mental health issues
must be interpreted with an understanding of the patient’s overall
well-being and the nature of her symptoms. . . . [and] with an
awareness that improved functioning while being treated and while
limiting environmental stressors does not always mean that a
claimant can function effectively in the workplace. . . . Caution in
making such an inference is especially appropriate when no doctor
or other medical expert has opined, on the basis of a full review of
all relevant records, that a mental health patient is capable of
working or is prepared to return to work.
Id. (internal quotations and citations omitted). In addition, an ALJ errs by discrediting a claimant
based on “bouts of remission” appearing to result from the claimant going off of medication. Id.
at 1023 n.23.
In this case, the record shows that Plaintiff’s symptoms remained a constant source of
impairment. For example, Plaintiff’s anxiety, depression, poor concentration, and manic episodes
largely persisted from February 2014 through December 2015. Tr. 320, 336, 338, 340, 342–346,
350, 355, 357, 368, 384–87, 391–93, 395–96. Some of Plaintiff’s other symptoms were more
intermittent, such as his auditory and visual hallucinations, paranoia, and irritability. Tr. 331,
334, 338, 340, 344, 346, 368, 375, 393. The ALJ, however, was correct to note that Plaintiff
10 – OPINION & ORDER
enjoyed brief periods of mood stability and improved symptoms when he consistently attended
individual and group therapy appointments and took the prescribed doses of his medication.
Nonetheless, those instances of temporary improvement were insufficient to show a “broader
development to satisfy the applicable ‘clear and convincing’ standard.” Garrison, 759 F.3d at
1019. In Garrison, the Ninth Circuit found that the ALJ improperly rejected the plaintiff’s
testimony under substantially similar circumstances. The court explained:
Rather than describe Garrison’s symptoms, course of treatment,
and bouts of remission, and thereby chart a course of improvement,
the ALJ improperly singled out a few periods of temporary wellbeing from a sustained period of impairment and relied on those
instances to discredit Garrison. While ALJs obviously must rely on
examples to show why they do not believe that a claimant is
credible, the data points they choose must in fact constitute
examples of a broader development to satisfy the applicable “clear
and convincing” standard. Here, the record reveals a tortuous path:
some symptoms came and went (e.g., paranoia, hallucinations,
pseudo-seizures), some symptoms persisted nearly the whole
period (e.g., insomnia, bouts of depression and mania), and still
other symptoms appear to have remained a constant source of
impairment (e.g., intense anxiety). Garrison’s diagnoses of PTSD
and bipolar disorder remained constant across all treatment
records, and her GAF score consistently hovered around 50 to 55.
She remained in this condition even while going to great lengths to
minimize stressors in her life—to the point that she could not go to
the grocery store alone—and, when she did try to work for a brief
period, was fired because of her mental impairments. The ALJ
erred in concluding that a few short-lived periods of temporary
improvement in Garrison’s mental health symptoms undermined
Garrison’s testimony.
Id. at 1018. In further comparison, Plaintiff also suffered from anxiety triggered by stimuli
resembling trauma that nearly met the criteria for PTSD and his GAF score occasionally ranged
from 35 to 45 and was often assessed at 55. Tr. 28, 334.
Plaintiff’s statements “must be read in context of the overall diagnostic picture he draws.”
Holohan, 246 F.3d at 1205. As the Ninth Circuit explained in Holohan, “[t]hat a person who
11 – OPINION & ORDER
suffers from severe panic attacks, anxiety, and depression makes some improvement does not
mean that the person’s impairment no longer seriously affect her ability to function in a
workplace.” Id. Plaintiff’s short-lived bouts of remission do not indicate a broader amelioration
of his impairments. Rather, the medical record demonstrates that Plaintiff was continually
impaired by his underlying mental conditions and that his overall condition was not only on the
downswing toward the end of the relevant period, it was considerably deteriorating. “When a
claimant’s condition is progressively deteriorating, the most recent medical report is the most
probative.” Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1968); Osenbrock v. Apfel, 240 F.3d
1157, 1165 (9th Cir. 2001) (“A treating physician’s most recent medical reports are highly
probative.”).
From March through December 2015, Plaintiff’s Bipolar I condition worsened. He
frequently forgot to take his medication and attend treatment appointments. Tr. 376–77, 382–97,
399–402. Plaintiff testified that he was too depressed to leave his bed some days and needed
constant reminders to bathe, take his medication, and complete other basic tasks. Tr. 385, 391,
393, 395–96. In Dr. Straumfjord’s December 10, 2015 letter, she wrote that it was “extremely
difficult” for Plaintiff and his caregivers to manage his medicine and she did “not see much
change in [Plaintiff’s] condition in the foreseeable future.” Tr. 404. Likewise, Plaintiff’s wife
submitted a declaration on November 30, 2015, in which she wrote that Plaintiff “has worsened
considerably since his pervious hearing with a judge. This is especially true regarding his mental
health problems.” Tr. 303. The remainder of the medical record is in accordance with this
testimony and supports a downward trajectory of Plaintiff’s condition. In other words, it was an
error for the ALJ to cherry pick instances of improvement with treatment to conclude that
Plaintiff was capable of working. See Garrison, 759 F.3d at 1017; Elliot v. Berryhill, No. 3:16-
12 – OPINION & ORDER
CV-02351-AA, 2018 WL 1092486, at *3 (D. Or. Feb. 28, 2018) (citing Ghanim v. Colvin, 763
F.3d 1154, 1164 (9th Cir. 2014) (“ALJ may not cherry-pick isolated instances of improved
psychological symptoms when the record as a whole reflects longstanding psychological
disability.”)).
E.
Failure to Follow Prescribed Treatment
The ALJ also erred by discounting Plaintiff’s testimony based on his inability to follow
prescribed treatment. Plaintiff’s inability to consistently adhere to prescribed treatment and
periods of improvement are directly attributable to his Bipolar I and ADHD disorders. The Ninth
Circuit has cautioned against punishing plaintiffs under such circumstances:
As we have remarked, it is a questionable practice to chastise one
with a mental impairment for the exercise of poor judgment in
seeking rehabilitation. In other words, we do not punish the
mentally ill for occasionally going off their medication when the
record affords compelling reason to view such departures from
prescribed treatment as part of claimants’ underlying mental
afflictions.
Garrison, 759 F.3d at 1018 n.24 (internal quotation marks and citation omitted). “An
unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of
treatment” can be a basis to discount symptom testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th
Cir. 1989). However, no adverse credibility finding is warranted where a claimant has a good
reason for failing to obtain treatment. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).
Here, Plaintiff’s failure to follow prescribed treatment is directly attributable, in large
part, to his mental impairments. See Garrison, 759 F.3d at 1018 n.24 (“Here, the record shows
that Garrison’s occasional decisions to go ‘off her meds’ were at least in part a result of her
underlying bipolar disorder and her other psychiatric issues.”). Plaintiff’s testimony, medical
opinion evidence, and Mrs. Georges’s third-party statement from all demonstrate that Plaintiff’s
13 – OPINION & ORDER
memory and concentration are impaired such that he cannot remember to attend treatment
appointments, take his medication, or to complete basic tasks in his daily life. Plaintiff relies on
his wife for transportation, does not have a driver’s license, and is unable to take public
transportation. Accordingly, the Court finds that Plaintiff provided compelling reasons
explaining his inability to follow prescribed treatment. Id. Therefore, the ALJ erred by using
Plaintiff’s failure to follow prescribed treatment as a reason to discount his testimony.2
II.
Medical Opinion Evidence
Plaintiff challenges the ALJ’s decision to accord less than full weight to the opinions of
three medical providers: Dr. Straumfjord; Dr. Trueblood; and Marta Richards. Social security
law recognizes three types of physicians: (1) treating; (2) examining; and (3) nonexamining.
Garrison, 759 F.3d at 1012. Generally, more weight is given to the opinion of a treating
physician than to the opinion of those who do not actually treat the claimant. Id.; 20 C.F.R.
§§ 404.1527(c)(1)–(2), 416.927(c)(1)–(2). And, more weight is given to an examining physician
than to a nonexamining physician. Garrison, 759 F.3d at 1012.
If the treating physician’s medical opinion is supported by medically acceptable
diagnostic techniques and is not inconsistent with other substantial evidence in the record, the
treating physician’s opinion is given controlling weight. Ghanim, 763 F.3d at 1160; Orn, 495
F.3d at 631. If the treating physician’s opinion is not contradicted by another doctor, the ALJ
2
The ALJ also found that there “are reasons other than the alleged worsening of impairments that have caused the
claimant to remain unemployed.” Tr. 27, 370. This finding was based on Plaintiff’s decision to close his business
and inability to find subsequent employment were due, in part, to the economy. The record shows that Plaintiff also
testified that he shuttered his business in 2006 because he was “not able to make proper decisions” and “ran the
company into the ground.” Tr. 332. Plaintiff reported to Dr. Trueblood that he “could not focus and was very
indecisive” regarding his business. Id. At the administrative hearing, when asked why his employment ended,
Plaintiff replied: “The industry started to, I guess, go downhill. And I pretty much to [sic] my illness, too.” Tr. 44.
The Court finds that the ALJ rationally interpreted the record to conclude that Plaintiff may have had reasons other
than his impairments for being unemployed. However, the Court finds that this basis, alone, does not satisfy the
clear and convincing standard. The fact that Plaintiff’s decision to close his business partially motivated by
economic factors is not a clear and convincing reason for rejecting his testimony that his impairments prevented him
from working.
14 – OPINION & ORDER
may reject it only for “clear and convincing” reasons supported by substantial evidence in the
record. Ghanim, 763 F.3d at 1160–61.
Even if the treating physician’s opinion is contradicted by another doctor, the ALJ may
not reject that opinion without providing “specific and legitimate reasons” which are supported
by substantial evidence in the record. Id. at 1161; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005). And, when a treating physician’s opinion is not given “controlling weight” because it
is not “well-supported” or because it is inconsistent with other substantial evidence in the record,
the ALJ must still articulate the relevant weight to be given to the opinion under the factors
provided for in 20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–(6).
A.
Dr. Straumfjord
Dr. Straumfjord began treating Plaintiff at the Deschutes County Behavioral Health in
2012. Tr. 404.3 On December 10, 2015, Dr. Straumfjord issued a written opinion about the
effects of Plaintiff’s impairments on his ability to work. She wrote, in part:
This patient has severe Bipolar-I Disorder as well as sever[e]
ADHD, Combined Type. In my experience, he has never been well
enough psychiatrically to maintain in a work environment. It is
difficult for him to identify changes in mood, particularly manic
episodes. As a consequence, managing his medication is extremely
difficult, both by himself and by his caregivers. I do not see much
change in [Plaintiff’s] condition in the foreseeable future. Once
again, I believe he is totally disabled from any sort of productive
work.
Tr. 404.
In addition, Dr. Straumfjord submitted a medical source statement that she co-signed with
Ms. Richards. Tr. 399–402. The statement listed several categories of mental functioning and
provided boxes for indicating the degree of limitation ranging from Category I to Category IV.
3
The administrative record only includes records from Deschutes County Behavioral Health dating back to February
of 2014. Tr. 317. Dr. Straumfjord, however, states in her opinion that she began treating Plaintiff in 2012. Tr. 404.
15 – OPINION & ORDER
Category IV, the highest degree of limitation, precludes performance or productivity for “30% of
an 8-hour work day.” Tr. 399. In the medical source statement, Dr. Straumfjord indicated that
Plaintiff had Category IV limitations across several areas of mental functioning including:
understanding and memory; sustained concentration and persistence; social interaction; and
adaptation. Tr. 399–402. Additionally, Dr. Straumfjord wrote that Plaintiff’s impairments would
cause him to be absent from work five days or more in a month. Tr. 402. When prompted to
explain the reasons for such absenteeism, she wrote: “depression, frustration, irritability,
hopelessness, low self-esteem, stress, manic episode, emotionally dysregulated.” Id. Lastly, Dr.
Straumfjord wrote that Plaintiff would be “off task” more than 30% of an 8-hour work day
because of his: “lack of concentration and focus; forgetfulness; inability to tolerate noise; highly
distractible; inability to manage stress; episodes of mania or depression.” Id.
The ALJ disregarded Dr. Straumfjord’s opinion, writing:
Here, the treatment record shows this physician has been treating
the claimant since March 2014. Dr. Straumfjord did see the
claimant more regularly than Ms. Richards did, which developed a
better record, but again, the evidence shows good results with
appropriate treatment. Furthermore, Dr. Straumfjord’s statements
are conclusory, there is no indication that she has specialized
knowledge of the disability program and review process, and the
final responsibility for deciding the issue of disability is reserved to
the Commissioner.
Tr. 30. It is unclear from the ALJ’s decision how much weight she assigned to Dr. Straumfjord’s
opinion. First, the ALJ sets forth the test for determining whether a treating provider’s opinion is
entitled to controlling weight. Then, the ALJ determined that Dr. Straumfjord’s opinion should
be disregarded because Plaintiff’s symptoms improved with treatment and because Dr.
Straumfjord does not specialize in disability programs. The Court finds Dr. Straumfjord’s
16 – OPINION & ORDER
opinion was entitled to controlling weight and the ALJ did not provide clear and convincing
reasons for rejecting it.
An ALJ will give “controlling weight” to a treating source’s opinion that is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2). The
weight accorded a treating physician’s opinion depends on the length of the treatment
relationship, the frequency of visits, and the nature and extent of treatment received. 20 C.F.R.
§§ 404.1527(c)(2)(i)–(ii), 416.927(c)(2)(i)–(ii).
An ALJ may reject the opinion of a treating provider where the opinion is: based largely
on the claimants subjective complaints which have been discredited; inconsistent with medical
records; or is internally inconsistent with the provider’s own treatment notes. Batson v. Comm’r
of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 601–02 (9th Cir. 1999); Valentine, 574 F.3d at 692–93. Also, when
evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that
opinion is brief, conclusory, and inadequately supported by clinical findings. Bayliss, 427 F.3d at
1216. A physician’s opinion “with respect to the existence of an impairment or the ultimate
determination of disability” is not binding on the ALJ. McLeod v. Astrue, 640 F.3d 881, 884–85
(9th Cir. 2010); 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1) (statements by a medical source that
a claimant is disabled or unable to work does not mean the Commissioner will determine the
claimant is disabled); but see Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (distinguishing
opinion by physician that the “combination of mental and medical problems makes the
likelihood of sustained full-time employment unlikely” because this was an assessment based on
17 – OPINION & ORDER
objective medical evidence of the likelihood of being able to work and was not a conclusory
statement of disability).
Given the length and nature of Dr. Straumfjord’s treating relationship with Plaintiff and
her opinion’s support from the record, the Court concludes that Dr. Straumfjord’s opinion was
entitled to controlling weight. It is supported by extensive medical records from Deschutes
County Behavioral Health, including: Dr. Straumfjord’s treatment notes; Ms. Richards’s
behavioral health assessment; and the medical source statement. Dr. Straumfjord’s opinion is
also consistent with Dr. Trueblood’s opinion, Ms. Richards’s opinion, Plaintiff’s testimony, and
Mrs. Joni Georges’s third-party function report.4
The ALJ’s reasons for discounting Dr. Straumfjord’s opinion do not meet the clear and
convincing standard. Preliminarily, the Court clarifies that the proper standard applicable to Dr.
Straumfjord’s opinion is the clear and convincing standard as opposed to the specific and
legitimate standard. As discussed above, Dr. Straumfjord’s opinion is consistent with, rather than
contradictory to, the opinions of other medical providers. Further, immediately following the
ALJ’s discussion of Dr. Straumfjord’s opinion, the ALJ gives the opinions of state agency nonexamining psychological consultants significant weight. Tr. 30, 124–39, 141–57. While the ALJ
did not expressly state that state agency consultants’ opinions contradicted Dr. Straumfjord’s
opinion, that finding was implied by the ALJ’s decision to give the state agency opinions greater
4
Plaintiff does not challenge the ALJ’s rejection of Mrs. Georges’s testimony. The Court however, relies in part on
her testimony. The ALJ rejected it on the grounds that it was inconsistent with Plaintiff’s bouts of remission and
because Mrs. Georges is “understandably sympathetic to [her] family member and therefore . . . apt to overstate
functional limitations on their behalf.” Tr. 26–27. As discussed above, it was error for the ALJ to rely on Plaintiff’s
bouts of remission to disregard testimony in this case. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009)
(holding that ALJs may not discredit lay testimony that is not supported by medical evidence in the record).
Additionally, it is well-established in the Ninth Circuit that an ALJ cannot disregard lay witness testimony because
of the witness’s familial relationship to the claimant. Id. at 1116 (holding that the lay-witness testimony of the
claimant’s wife could not be discredited because of her close relationship with the claimant); see also Valentine, 574
F.3d at 694 (holding that ALJs err by rejecting spouses’ testimony by relying on characteristics common to all
spouses and without either identifying why the spouse was ignorant of the claimant’s functional capacities or by
pointing to specific exaggerated claims).
18 – OPINION & ORDER
weight. “The opinion of a nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an examining physician or a treating
physician.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996). Additionally, the ALJ did not
explain why the non-examining state agency consultants’ opinions, rather than Dr.
Straumfjord’s, were correct.
The Commissioner argues that the ALJ found that Dr. Straumfjord’s opinion was also
contradicted by medical evidence in the record. Upon reviewing the ALJ’s decision, however,
the Court finds that the ALJ did not rely on any inconsistency within the medical record as a
basis for discounting Dr. Straumfjord’s opinion. A district court cannot affirm a non-disability
decision based upon grounds that the ALJ did not invoke. Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014). At best, the ALJ found that Plaintiff’s periods of improvement with treatment
demonstrated that he was more capable than Dr. Straumfjord opined. As discussed above,
however, Plaintiff’s bouts of remission when he adhered to prescribed treatment are not
inconsistent with the finding that Plaintiff’s impairments prevented him from working. More
importantly, Dr. Straumfjord was Plaintiff’s treating provider during his periods of improvement
and her treatment notes encompass the waxing and waning of his symptoms. Dr. Straumfjord
was uniquely positioned to assess the severity of Plaintiff’s impairments and she concluded
that—notwithstanding Plaintiff’s periods of improvement—his severe Bipolar I and ADHD
conditions would preclude him from working. Tr. 399–404. The ALJ simply disagreed with Dr.
Straumfjord’s conclusion based on her own treatment notes without citing any medical evidence
to the contrary.
19 – OPINION & ORDER
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted) (“The 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.”).
Lastly, the ALJ rejected Dr. Straumfjord’s opinion on the grounds that it was conclusory
and she lacked specialization in disability programs. Based on the foregoing, the great weight of
the record supports Dr. Straumfjord’s opinion and it cannot, therefore, be conclusory. The Court
also agrees with Plaintiff that a lack of specialization in disability programs cannot be a clear and
convincing reason to reject the uncontradicted opinion of a treating medical provider. While
specialization in a medical field may be relevant for the purpose of assigning a medical opinion
weight, a lack of specialization in disability programs is not a clear and convincing reason for
rejecting medical opinions. See Garrison, 759 F.3d at 1013 n.14 (stating that opinions from
specialists related to that person’s specialty are afforded more weight); Benecke v. Barnhart, 379
F.3d 587, 594 n.4 (9th Cir. 2004) (quoting 20 C.F.R. § 404.1527(c)(5)) (giving greater weight to
an opinion because “it is ‘an opinion of a specialist about medical issues relating to his or her
area of specialty.’”). In other words, the fact that the medical provider opines about the ultimate
question of disability, a question reserved for the ALJ, is not in itself, a clear and convincing
reason to reject the medical opinion. 20 C.F.R. § 404.1527(d).
In conclusion, the Court finds that the Dr. Straumfjord’s opinion was entitled to
controlling weight and the ALJ erred by failing to provide clear and convincing reasons to reject
her opinion.
B.
Dr. Trueblood
Next, Plaintiff argues that the ALJ improperly rejected the opinion of examining
physician Dr. Trueblood. The ALJ gave Dr. Trueblood’s opinion limited weight because “his
20 – OPINION & ORDER
assessments of work related functioning” were “vague and equivocal” and because “he failed to
give proper consideration to the claimant’s own report that his focus improved and manic
symptoms reduced when taking medications.” Tr. 29.
Dr. Trueblood conducted a psychodiagnostic examination of Plaintiff on December 10,
2014. Tr. 329. He diagnosed Plaintiff with: Bipolar I Disorder with psychotic features; ADHD;
and Alcohol Use Disorder in full sustained remission. Tr. 335. In particular, Dr. Trueblood found
that Bipolar I rather than Bipolar II should be diagnosed because of Plaintiff’s psychotic
symptoms such as auditory hallucinations and paranoia. Tr. 332–33. He found that “the course of
these symptoms seems to be one of worsening in recent years, including worsening in his focus;
this seems best demonstrated in decline in his performance in operating his own business in the
early 2000’s.” Tr. 334.
As to Plaintiff’s attention problems, Dr. Trueblood’s cognitive screening results indicated
“impaired performance on a memory screening task and suggestive evidence for impairment in
working memory (impaired calculations, mildly low digit repetition, normal mental tracking).”
Tr. 334. Dr. Trueblood explained the tentative nature of his findings from his diagnostic
examination:
Note that only tentative impressions can be offered about this
gentleman’s cognitive functioning since only a cognitive screening
was conducted. Tentative impression include that it does seem
likely that there is acquired cognitive impairment that is significant
in degree, including in memory as well as attention (working
memory as well as maintaining attention). Plausible contributing
factors to acquired cognitive impairment for this gentleman include
his past alcohol abuse and his Bipolar II Disorder. If further
information is needed about [Plaintiff’s] cognitive functioning, a
neuropsychological screening examination could be performed.
Tr. 334. Regarding Plaintiff’s ability to understand instructions, Dr. Trueblood found that there
was only a single instance during the evaluation where he had difficulty understanding
21 – OPINION & ORDER
something said to him. Tr. 334. Dr. Trueblood’s “[t]entative expectation is that [Plaintiff’s]
ability to understand instructions is mildly impaired at most.” Tr. 334. Additionally, he found
Plaintiff’s ability to understand instructions was “at least mild[ly] to moderate[ly]” impaired. Tr.
334. Dr. Trueblood expected that Plaintiff’s ability to “sustain attention/concentration and
persist” was subject to a “significant and quite possibly substantial degree of impairment.” Tr.
334.
An ALJ is “not required to incorporate limitations phrased equivocally into the RFC.”
Collum v. Colvin, No. 6:13-cv-01173-AA, 2014 WL 3778312, at *4 (D. Or. July 30, 2014)
(citing Valentine, 574 F.3d at 691–92). For example, an ALJ may reject functional limitations
prefaced with language such as “might,” “may,” or “would also likely require.” Id. (citing
Glosenger v. Comm’r Soc. Sec. Admin, No. 3:12-cv-1773-ST, 2014 WL 1513995, at *6 (D. Or.
Apr. 16, 2014)). Statements including such language may be excluded by an ALJ because they
are not diagnoses or descriptions of a plaintiff’s functional capacity. See Valentine, 574 F.3d at
691–92 (upholding the ALJ’s rejection of an equivocal medical observation because it was
“neither a diagnosis nor a statement of [the plaintiff’s] functional capacity” and finding that it
was “rather a recommended way for [the plaintiff] to cope with his PTSD symptoms”).
Here, Dr. Trueblood opined about Plaintiff’s functional capacities; however, he explained
that his findings were “tentative” because they were based on a psychodiagnostic examination as
opposed to neuropsychological screening examination. Dr. Trueblood uses his own terms of
degree for describing the severity of Plaintiff’s impairments, ranging from: mild, moderate,
significant, to substantial. The Court agrees with the Commissioner that those terms are vague
and undefined. Therefore, it was rational for the ALJ to accord Dr. Trueblood’s functional
assessments limited weight for the purpose of formulating Plaintiff’s RFC. Dr. Trueblood’s
22 – OPINION & ORDER
functional assessments were ambiguous and “the ALJ is the final arbiter with respect to resolving
ambiguities in the medical evidence.” Tommasetti, 533 F.3d at 1041–42 (citing Andrews v.
Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995)).
On the other hand, while the ALJ’s interpretation of Dr. Trueblood’s opinion was
rational, the ALJ nevertheless erred by failing to fulfill her duty to develop the record. It is well
established that an ALJ has a “special duty to develop the record fully and fairly and to ensure
that the claimant’s interests are considered, even when the claimant is represented by counsel.”
Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citations omitted). Disability hearings
are not adversarial in nature. Windmark v. Barnhart, 454 F.3d 1063, 1068–69 (9th Cir. 2006);
SSR 16-03p, at *11. In this case, Dr. Trueblood opined about the severity of Plaintiff’s
functional limitations; albeit, the degree of those limitations was not entirely clear. The ALJ had
a duty to further inquire to see if Dr. Trueblood’s functional assessments should be more fully
integrated into Plaintiff’s RFC. It may have been appropriate for the ALJ to subpoena Dr.
Trueblood or submit further questioning to him. Smolen v. Chater¸ 80 F.3d 1273, 1288 (9th Cir.
1996) (citing 42 U.S.C. § 405(d) (1998); 20 C.F.R. § 404.950(d) (1991); 20 C.F.R.
§ 404.1527(c)(3)).
Moreover, for the same reasons discussed above, it was inappropriate for the ALJ to use
Plaintiff’s bouts of remission as a reason to discount Dr. Trueblood’s opinion. Therefore, the
Court finds that the ALJ’s treatment of Dr. Trueblood’s opinion contains harmful legal errors.
C.
Ms. Richards
Lastly, Plaintiff challenges the ALJ’s decision to accord less than full weight to Ms.
Richards’s opinion. Ms. Richards, Plaintiff’s therapist who worked at Deschutes County
Behavioral Health, submitted the functional assessment report along with Dr. Straumfjord
23 – OPINION & ORDER
discussed above. Tr. 399–401. Once more, Ms. Richards opined that Plaintiff would be
precluded from performing multiple functions thirty percent of an eight-hour workday and he
would miss more than five days of work per month. Id.
First, the parties dispute whether Ms. Richards is an acceptable medical source. “Medical
sources” refers to both “acceptable medical sources” and other health care providers who are
“not acceptable medical sources.” SSR 06-03p; 20 C.F.R. §§ 404.1502, 416.902. Ms. Richards,
MA, CADC II, LPC, is a certified alcohol and drug counselor as well as a licensed professional
counselor. Tr. 399–402. These credentials do not render Ms. Richards an acceptable medical
source within the meaning of the Social Security Act. See 20 C.F.R. § 404.1502(a). Rather, Ms.
Richards is a non-acceptable medical source. 20 C.F.R. § 404.1502(d). While opinions from
acceptable and non-acceptable medical sources are weighed in similar manners, 20 C.F.R.
§ 404.1527(f), an ALJ may reject an opinion of a non-acceptable medical source by providing
reasons germane to that source. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017).
Here, the ALJ discounted Ms. Richards’s opinion because she had seen Plaintiff nine
times in eighteen months and because she opined about Plaintiff’s restrictions beginning in
January 2012, two years before their treating relationship began. Tr. 29. The Court finds that
these were not germane reasons. First, the fact that Ms. Richards saw Plaintiff nine times in
eighteen months supports according her opinion greater weight. Indeed, other than Dr.
Straumfjord, Ms. Richards had the most contact with Plaintiff and her treatment notes were the
most detailed. Ms. Richards certainly had much more contact than the examining and nonexamining reviewing physicians in this case. Second, Ms. Richards’s opinion about Plaintiff’s
condition dating back to January 2012 was based on her review of Plaintiff’s prior medical
records. Tr. 401. Plaintiff’s treatment at Deschutes County Behavioral Health dated back to early
24 – OPINION & ORDER
2012 and Ms. Richards worked as a part of a team including Dr. Straumfjord to treat Plaintiff’s
conditions. Tr. 404. In any event, while it may have been rational for the ALJ to discount Ms.
Richards’s opinion to the extent that it pertained to the time before her treating relationship
began, that reasoning cannot extend to the period of time in which Ms. Richards treated Plaintiff.
In sum, the Court finds that the ALJ improperly rejected Ms. Richards’s opinion.
III.
Remand
Because the Court concludes that the ALJ’s decision contained harmful legal errors and
was not supported by substantial evidence in the record, the remaining question is whether this
case should be remanded for further administrative proceedings or an immediate award of
benefits. Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000). Under the “ordinary”
remand rule in Social Security cases, district courts remand to the agency for additional
investigation or explanation. Treichler, 775 F.3d at 1162. “Usually, ‘[i]f additional proceedings
can remedy defects in the original administrative proceeding, a social security case should be
remanded.’” Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th
Cir. 1981)). Additionally, district courts in the Ninth Circuit may also apply the “credit-as-true”
rule to remand for an immediate award of benefits. Id. at 1020. Each of the following must be
satisfied to justify an immediate award of benefits:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed
to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion; and (3) if the
improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
Id. (citations omitted). Even if those requirements have been met, the district court retains the
flexibility to remand the case for further proceedings, particularly where the record as a whole
creates serious doubts that the claimant is disabled. Burrell, 775 F.3d at 1141.
25 – OPINION & ORDER
As to the first factor, Court finds that the record has been fully developed and further
administrative proceedings would serve no useful purpose. Medical opinion evidence, Plaintiff’s
testimony, and Mrs. George’s testimony are in accordance that, notwithstanding Plaintiff’s bouts
of remission, his mental impairments—especially his Bipolar I disorder—preclude him from
employment. Regarding the second factor, as discussed above, the Court finds that the ALJ
provided legally insufficient reasons for rejecting medical testimony entitled to controlling
weight as well as other medical and lay testimony. Finally, when the improperly rejected
testimony is credited-as-true, it would require that the ALJ find Plaintiff disabled. Dr.
Straumfjord and Ms. Richards opined that Plaintiff would be unable to function thirty percent of
an eight hour day and that he would miss more than five days of work in a month due to his
mental impairments. Similarly, Plaintiff’s testimony and Ms. George’s third-party function
report both state that Plaintiff’s mental impairments would prevent him from working.
“Remanding a disability claim for further proceedings can delay much needed income
for claimants who are unable to work and are entitled to benefits, often subjecting them to
‘tremendous financial difficulties while awaiting the outcome of their appeals and proceedings
on remand.’” Id. (quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d. 1396, 1398 (9th
Cir. 1998)). “Indeed, in cases in which it is evident from the record that benefits should be
awarded, remanding for further proceedings would needlessly delay effectuating the primary
purpose of the Social Security Act, ‘to give financial assistance to disabled persons because they
are without the ability to sustain themselves.’” Holohan, 246 F.3d at 1210 (quoting Gamble v.
Chater, 68 F.3d 319, 322 (9th Cir. 1995)). Therefore, in light of the record in this case and the
relevant law, the Court finds that a remand for an immediate award of benefits is appropriate.
//
26 – OPINION & ORDER
CONCLUSION
The Commissioner’s decision is reversed and remanded for an immediate award of
benefits.
IT IS SO ORDERED.
Dated this
day of ________________, 2018.
MARCO A. HERNÁNDEZ
United States District Judge
27 – OPINION & ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?