Mann v. Commissioner Social Security Administration

Filing 15

ORDER: Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision of the Commissioner is Reversed and Remanded for further proceedings. Signed on 10/12/18 by Magistrate Judge Jolie A. Russo. (gm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHAWNEY M.,1

6:17-cv-1005-JR
Plaintiff,
ORDER
v.

NANCY A. BERRYHILL,
Deputy Commissioner of Social Security,
Defendant.
RUSSO, Magistrate Judge:
Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision
denying plaintiff's application for supplemental security income benefits (SSI).
Plaintiff asserts disability beginning September 10, 2005 due to bipolar disorder with
psychosis. Tr. 157, 171. Plaintiff was 14 years old on her alleged onset date. Tr. 157.

1

In the interest of privacy, this order uses only the first name and the initial of the last
name of the non-governmental party or parties in this case. Where applicable, this order uses the
same designation for a non-governmental party’s immediate family member.
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After a hearing held on October 19, 2015, an administrative law judge (ALJ) determined
plaintiff was not disabled. Plaintiff asserts the ALJ erred by: (1) improperly discrediting her
testimony; (2) improperly rejecting the opinion consulting psychological examiner Dr. Scott Alvord;
and (3) improperly discrediting her great-grandmother's third-party statement.
A.

Plaintiff's Credibility
In her application for SSI, plaintiff asserted her mental state is such that she is unable to work

because she "can't sit still," her "attention span is that of a child," and she "can't remember things."
Tr. 180. Plaintiff further asserted she never had a job and does not "even have the concept of being
employed." Id.
Plaintiff has a sparse medical history, but records indicate a suicide attempt in January 2010
following a breakup with her then boyfriend. Tr. 588.2 Plaintiff suffered a manic episode with
psychosis in March 2013. Tr. 339. She had not been taking her prescribed medications for several
years prior to the episode. Id. At the hearing plaintiff testified the medication, Depakote, "makes
me to where I don't go into psychosis and it stabilizes my moods." Tr. 53. Plaintiff further testified
that when she stops taking Depakote her symptoms quickly worsen. Tr. 54.
Nonetheless, plaintiff stated she is still unable to work when taking Depakote because she
gets discouraged and suffers from paranoia. Tr. 55. Plaintiff testified she could "not take on too
much work so that it wouldn't become stressful." Tr. 58. Plaintiff stated she unable to handle even
slow paced jobs full-time because there are days she doesn't "feel like doing anything at all." Tr. 61.

2

The chart note also indicates a suicide attempt in November 2005. Tr. 589. However,
the note indicates no further documented history of significant medical problems. Id.
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Plaintiff also relates that she has panic attacks once a month that are relieved by smoking marijuana.
Tr. 65-66.
The ALJ found plaintiff not credible concerning the limiting effects of her disorder. Tr. 23.
The ALJ first noted there is no basis for plaintiff's alleged onset date of September 2005 because
there are no medical records even remotely close to this date. Tr. 23. While the medical records are
indeed sparse with little in the way of documented history of significant medical problems, the
medical record does document two suicide attempts in November 20053 and January 2010. Tr. 58889.
The ALJ also noted plaintiff did not seek mental health treatment until March 2013.
However, plaintiff was a minor for much of the period of alleged disability and, as noted, it is
unclear what medical records may exist and to what extent plaintiff controlled her medical treatment.
In addition, plaintiff alluded to an inability to afford treatment until recently. Tr. 54 (times when
unable to afford medication); 55 ("On Oregon Health now ... so no reason not to take Depakote").
Because the record is unclear, it cannot be determined if the ALJ appropriately made an adverse
credibility determination based on failure to seek medical treatment. See Orn v. Astrue, 495 F.3d
625, 638 9th Cir. 2007) (A failure to seek treatment may be the basis for an adverse credibility
finding unless there is good reason for the failure such as lack of funds.).

3

The Commissioner asserts there are no contemporaneous medical records of the
November 2005 suicide attempt. The Commissioner also asserts the November 2005 attempt
does not explain disability going back to September 2005. The record does not indicate what
condition prompted plaintiff to attempt suicide in 2005 and whether she had been suffering from
such condition since September of that year. Moreover, plaintiff was about 15 years old at the
time and it is unclear from the record what control she had over her own medical treatment. It
should be noted that a February 11, 2014 chart note mentions "Records indicate an overdose of
Tylenol at age 15," and thus it is unclear if further pediatric medical records do exist. Tr. 426
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The ALJ next notes that despite plaintiff's alleged inability to work, plaintiff expressed an
interest in working, applied for full-time work, attended interviews, and performed some "under-thetable work." Tr. 23. Plaintiff did express interest in work. E.g., Tr. 309 (expressed interest in
starting to work). Plaintiff also applied for work and attended interviews. E.g., Tr. 358 (applications
and interviews at Dairy Queen and Subway). Plaintiff also engaged in sporadic under-the-table work
activity. Tr. 23, 52, 555. However, this does not discredit plaintiff's alleged inability to maintain
work due to stress. The ALJ also indicates that plaintiff may actually lack motivation to work or is
unable to obtain a job due to inexperience and a criminal history rather than disability. Tr. 23-24.
The ALJ does cite record support for plaintiff's criminal history. Tr. 300 (incarcerated off and on
between the ages of 15-17 for assault and drug related offenses); Tr 318 (charges of disorderly
conduct at age 22). However, the ALJ does not cite record support for employment rejection due to
inexperience or due to a criminal record. Moreover, the record indicates criminal mischief is a
concern relating to plaintiff's bipolar condition. Tr. 339.
The ALJ also noted plaintiff's lack of mental health counseling and the effectiveness of her
medication in stabilizing her symptoms. Tr. 24. While the record does indicate medication
effectively prevented severe psychotic episodes and stabilized her mood, plaintiff testified that she
still suffers from paranoia, is unable to handle the stress of "too much work," and suffers from panic
attacks. Tr. 55, 58, 65. The record is unclear as to plaintiff's lack of counseling as plaintiff stated,
"I've had counseling all my life so it's basically you start to hear the same things over and over
again." Tr. 65. The record is ambiguous as to whether plaintiff's medication controls her bipolar

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condition sufficiently to enable her to work.4 There is also ambiguity as to whether plaintiff is
unable to work due to her disorder, or her lack of motivation, or other factors not related to her
disorder. Therefore, it cannot be determined if the ALJ's findings are supported by substantial
evidence.
The ALJ next notes that despite allegations of disability, plaintiff obtained her GED, attended
community college, and had the stamina to play video games. Tr. 25. However, it is unclear how
obtaining a GED or playing video games translates to an ability to work or otherwise discredits
plaintiff's asserted inability to work full-time. In addition, while the record indicates plaintiff
"passed some of her first exams" of cosmetology school, she stopped going because she was "too
overwhelmed." Tr. 418, 67.5 Again, the ALJ's findings are not supported by substantial evidence
based on the current record. Accordingly, a remand is necessary to address the ambiguity concerning
plaintiff's credibility.
B.

Dr. Scott Alvord
Dr. Alvord examined plaintiff on September 15, 2015. Tr. 554. Dr. Alvord diagnosed

plaintiff with chronic bipolar disorder and post-traumatic stress disorder. Tr. 558. He opined

4

The ALJ also determined plaintiff inconsistently reported to Dr. Alvord her noncompliance with medications due to intolerable side-effects. Tr. 25, 555. However, plaintiff
testified at the hearing and to providers about the relative effectiveness of Depakote. She reported
to Dr. Alvord the intolerable side-effects from Lithium, Welbutrin, Zoloft, Prozac, and Paxil and
thus she discontinued those medications. Tr. 53, 379, 555. At the hearing, plaintiff testified she
stopped taking Latuda because it made her feel like she has to “jerk," consistent with her
statement to Dr. Alvord. Tr. 53, 555.
5

The record is unclear if plaintiff could complete a narrowed course of study in
cosmetology school and obtain employment in that narrowed discipline. See Tr. 58 (going for all
three disciplines (hair, esthetics, and facials) was too fast-paced); Tr. 67-68 (quit because
overwhelmed after deciding to do all three disciplines for licensing purposes).
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plaintiff would have difficulty: performing detailed and complex tasks; accepting instructions from
supervisors; interacting with co-workers and the public; performing work activities on a consistent
basis without special accommodations; maintaining regular attendance in the workplace; completing
a normal workday/workweek without interruption from her psychiatric condition; and dealing with
the usual stress encountered in the workplace. Tr. 558.
The ALJ gave little wight to Dr. Alvord's opinion finding it was based on a limited review
of the medical evidence and was inconsistent with the record as a whole. Tr. 26. To the extent the
the ALJ relies on his finding that the effectiveness of plaintiff's medications belie the assertion that
plaintiff cannot work full-time; the record, as noted above, is ambiguous on this point.
The ALJ ultimately concluded that Dr. Alvord's opinion was based on plaintiff's less than
credible reports. Tr. 26. However, as noted above, the record needs further development regarding
plaintiff's credibility. Moreover, as the Ninth Circuit has noted:
Psychiatric evaluations may appear subjective, especially compared to evaluation in
other medical fields. Diagnoses will always depend in part on the patient's self-report,
as well as on the clinician's observations of the patient. But such is the nature of
psychiatry. See Poulin, 817 F.2d at 873 (“[U]nlike a broken arm, a mind cannot be
x-rayed.”).Thus, the rule allowing an ALJ to reject opinions based on self-reports
does not apply in the same manner to opinions regarding mental illness.
Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017).
Accordingly, a remand is necessary to address Dr. Alvord's opinion along with plaintiff's
credibility.
C.

Third-Party Statement of Plaintiff's Great-Grandmother
Plaintiff lives with her great-grandmother Pearl M. who reported on the limitations imposed

by plaintiff's mental condition. Tr. 202-09. The ALJ stated Pearl M's report "generally mirrored

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the claimant's reports of pain, limitations, and activities of daily living." Tr. 23. The ALJ gave little
weight to the report stating: "Due to her relationship with and affection for the claimant, she is
understandably sympathetic to the claimant and has a natural tendency to agree with her reported
limitations." Tr. 23. The Commissioner concedes that it is improper for the ALJ to reject a family
member's report because of a sympathetic relationship to the claimant.

Nonetheless, the

Commissioner argues the court can infer that the ALJ rejected the report for the same reasons he
rejected plaintiff's similar subjective report. To the extent the court could infer such a finding on the
part of the ALJ, the record needs further development regarding plaintiff's credibility as noted above.
Accordingly, a remand is necessary to address Pearl M's report as well.
D.

Remand
Plaintiff argues the court should remand for payment of benefits. The court declines to do

so. Although the ALJ failed to provide legally sufficient reasons for rejecting plaintiff's testimony,
Dr. Alvord's opinion, and Pearl M's report, the record requires further development before a finding
of disability can be made. Because a remand for further proceedings is necessary, a remand for
payment of benefits is not warranted. See Treichler v. Comm'r of SSA, 775 F.3d 1090, 1105 (9th
Cir. 2014) (Where an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper
approach is to remand the case to the agency.).

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CONCLUSION
Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision of the Commissioner is reversed
and remanded for further proceedings.

DATED this 12th day of October 2018.
/s/ Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge

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