Cowdrey v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER: Based on this Opinion and Order, the Court exercises it's discretion and orders that the decision of the Commissioner is REVERSED and REMANDED for an immediate payment of benefits. Please access entire text by document number hyperlink. Order and Signed on 12/02/2019 by Magistrate Judge Mark D. Clarke. (rsm)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
SHANNAN c., l

Case No. 6:18-cv-00625-CL
Plaintiff,
OPINION AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

CLARKE, Magistrate Judge:

Plaintiff Shannan C. seeks judicial review of the final decision of the Commissioner of the
Social Security Administrations denying her applications for disability insurance benefits ("DIB")
under Title II and for supplemental security income ("SSI") under Title XVI of the Social Security
Act ("the Act"). Full consent to magistrate jurisdiction was entered on October 18, 2019 (#16).
For the reasons below, the Commissioner's decision is REVERSED and REMANDED for
immediate payment of benefits.
·BACKGROUND

Born November 15, 1979, Plaintiff was thirty-four years old on the alleged onset date. Tr.
24. She completed two years of college coursework. Tr. 344. She served active duty in the U.S.
Navy from August 1997 until discharged under honorable conditions in December 1998 for

1 In

the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the nongovernmental party or parties in this case.

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1 - OPINION AND ORDER

"personality disorder." Tr. 321,471. She has past relevant work experience as a pizza baker, pizza
deliverer, and automobile salesperson. Tr. 24.
,

In September 2014, Plaintiff protectively filed applications for Disability Insurance
Benefits and Supplemental Security Income, alleging disability beginning February 9, 2014. Tr.
258-72. The agency denied the claims both initially and upon reconsideration, and Plaintiff
requested a hearing. Tr. 159-63, 165-81. She appeared pro se for a hearing before ALJ John
Sullivan in March 2017, at which time she voluntarily continued the hearing to obtain a
representative. Tr. 87-94, 217. She appeared with a representative for a hearing before ALJ Ted
Neiswanger in October 2017. Tr. 38-86. On November 9, 2017, the ALJ issued a decision
denying Plaintiff's claims for benefits. Tr. 10-32. Plaintiff requested review of the hearing
decision, which the Appeals Council denied in February 2018. Tr. 253-54, 1-6. Accordingly, the
ALJ decision became the final decision of the agency from which Plaintiff seeks review.

DISABILITY 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. § ,
423(d)(l)(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. §§ 404.1520
(DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1.

PAGE

Is the claimant performing "substantial gainful activity?" 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving

2 - OPINION AND ORDER

significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.

Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 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. §§ 404.1521(a), 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. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 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. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues.
a. 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.
§§ 404.1520(e), 404.1545(b)-(c), 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. §§
404.1520(a)(4)(iv), 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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 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 ).

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3 - OPINION AND ORDER

The claimant bears the burden of proof at steps one through four. Id. at 953; see also

Tackett v. Apfel, 180 F.3d 1094, 1098 (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
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. §§ 404.1566, 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. §§ 404.1520(a)(4)(v), 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.
THE ALJ'S FINDINGS
Applying the five-step analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through June
30, 2015. Tr. 15.
2. Plaintiff has not engaged in substantial gainful activity since February 9, 2014, the
alleged onset date. Tr. 15.
3. Plaintiff has the following severe impairments: posttraumatic stress disorder (PTSD),
and bipolar disorder. Tr. 15.
4. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. Tr. 16.
5. Plaintiff has the RFC to perform a full range of work at all exertional levels but with
the following non-exertional limitations. She is limited to simple, routine work tasks
involving no interaction with the public and minimal superficial interaction with
coworkers. She must work mostly independently and cannot have work-related
interactions with coworkers. She is limited to low stress work, which is further defined
as no persuasive communication tasks, no teamwork tasks, no fast-paced production
pace work, and few changes in work routine or setting. Tr. 18.

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4 - OPINION AND ORDER

6. Plaintiff is unable to perform any past relevant work as a pizza baker, pizza deliverer,
or a salesperson (automobiles). Tr. 23-24.

10. Considering Plaintiff's age, education, work experience, and RFC, there are jobs that .
exist in significant numbers in the national economy that the claimant can perform,
including cleaner II (transportation vehicles), laundry sorter, and inspector hand
packager. Tr. 24-25.
Consequently, the ALJ concluded Plaintiff is not disabled as defined by the Act. Tr. 25.
STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); See also

Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "'Substantial evidence' means 'more than
a mere scintilla but less than a preponderance,' or more clearly stated, 'such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."' Bray v. Comm 'r Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 53 F.3d 1035, 1039
(9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court must weigh "both the
evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler,
807 F .2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at
1041 ). "However, a reviewing court must consider the entire record as a whole and may not affirm
simply by isolating a 'specific quantum of supporting evidence."' Robbins v. Soc. Sec. Admin.,

466 F.3d 880,882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing
court "cannot affirm the [Commissioner's] decision on a ground that the [Administration] did not

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5 - OPINION AND ORDER

invoke in making its decision." Stout v. Comm 'r Soc. Sec. Admin., 454 F .3d 1050, 1054 (9th Cir.
2006) (citations omitted). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the
power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or
reversing the decision of the Commissioner, with or without remanding the case for a rehearing.
DISCUSSION

Plaintiff presents the following issues:
1. Did the ALJ properly evaluate the medical source opinions of Lance Portoff, Ph.D.,
and Scott Alvord, Psy.D.?
2. Did the ALJ give proper weight to the VA disability determination?
3. Did the ALJ properly evaluate Plaintiffs subjective symptom testimony?
The Court finds that the ALJ erred in all three ways, and for the reasons below, the case is
reversed and remanded for immediate payment of benefits.
I.

The ALJ failed to properly reject Plaintiff's two examining medical opinions.

Plaintiff challenges the ALJ' s weighing of the medical opinion evidence of record. In social
security cases, there are three categories of medical opinions: those that come from treating,
examining, and non-examining doctors. Holohan, 246 F.3d at 1201. "Generally, a treating
physician's opinion carries more weight than an examining physician's, and an examining
physician's opinion carries more weight than a reviewing physician's." Id. at 1202. Opinions
supported by explanations are given more authority than those that are not, as are opinions of
specialists directly relating to their specialties. Id.

2

"If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an

ALJ may only reject it by providing specific and legitimate reasons that are supported by

2 The

Court notes that the Commissioner has promulgated new regulations for evaluating medical opinion
evidence for claims filed on or after March 27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c. However,
for claims filed before March 27, 2017, the regulations at 20 C.F.R. §§ 404.1527, 416.927 apply.

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6 - OPINION AND ORDER

substantial evidence." Id. (quoting Bayliss, 427 F.3d at 1216); see also Reddick, 157 F.3d at 725
("[The] reasons for rejecting a treating doctor's credible opinion on disability are comparable to
those required for rejecting a treating doctor's medical opinion."). "The ALJ can meet this burden
by setting out a detailed and thorough summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989) (citation omitted).
a. Examining psychologist Lance Portnoff, Ph.D., ABN
Lance Portnoff, Ph.D., ABN, performed a consultative psychological evaluation in
November 2014. Tr. 552. Dr. Portnoff based his opinion on a review of available records, clinical
interview, and mental status examination. Tr. 552-55.

He recorded that Plaintiff "arrived

significantly late" for the exam and was an adequate historian. Tr. 552. Plaintiff reported that her
mother was a heroin addict; she lived with her grandmother most of her childhood. Tr. 552-53.
She described a childhood history of sexual and mental abuse. Tr. 553. She witnessed and had
been victim to domestic violence. Tr. 553. She had been raped while serving in the U.S. Navy. Tr.
553. She experienced intrusive memories of abuse and rape, social anxiety, hypervigilance, and
panic attacks in public. Tr. 553. She described recurrent depression, vegetative symptoms of
apathy, anhedonia, and asociality. Tr. 553. She reported a history of methamphetamine use, with
her last use in February 2014. Tr. 554. She had last experienced suicidal ideation several months
prior. Tr. 553. She had participated in counseling for three years after her husband died. Tr. 553.
Although she denied discrete mania, Dr. Portnoff observed manic symptoms during the evaluation.
Tr. 553. Plaintiff endorsed auditory hallucinations. Tr. 553. She was independent in personal
hygiene but lacked motivation to perform those tasks. Tr. 554. She could manage money, travel
alone, and prepare meals. Tr. 554.

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7 - OPINION AND ORDER

During the exam, Plaintiff demonstrated adequate concentration, persistence, and pace, but
some psychomotor slowing. Tr. 554. Dr. Portnoff noted moderate rambling and mildly tangential
speech; moderate, agitated, tearful affect; and delayed recall. Tr. 554. He diagnosed unspecified
bipolar disorder, most recent episode mixed, moderate; PTSD; and meth abuse disorder in full
remission. Tr. 555. He noted that Plaintiff presented with mixed manic and depressive signs. Tr.
555. Examination indicated a thought disorder but provided insufficient evidence to diagnose
borderline personality disorder. Tr. 555. Dr. Portnoff opined that Plaintiffs prognosis was fair,
depending on access to medication and abstinence from drugs. Tr. 555. He assessed marked
limitation in the ability to interact with coworkers and the public. Tr. 556. He assessed moderate
limitation in the ability to perform detailed and complex t~sks, maintain regular attendance in the
workplace, and deal with stress encountered in a competitive work environment. Tr. 556. He
opined that Plaintiff could not manage her own funds independently. Tr. 556.
The ALJ afforded "some weight" to Dr. Portnoffs opinion. Tr. 21. This was an error. Dr.
Portnoff s opinion was consistent with the medical record, consistent with Plaintiffs testimony,
and consistent with his own clinical findings. The ALJ did not identify any conflicting clinical
evidence other than an opinion by a reviewing physician, which is not sufficient to discount the
opinion of an examining physician.
First, as noted above, a physician who examines the claimant is generally due greater
weight than that of a reviewing doctor. The opinion of a non-examining 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 821,831 (9th Cir. 1995), as amended
(Apr. 9, 1996) (citations omitted). In this case, the ALJ afforded greater weight to the conclusions
of Celene Payne-Gair, Ph.D., a state agency consultant who based her opinion on a review of the

PAGE - 8 - OPINION AND ORDER

medical record in March 2015. Tr. 23, 132-35. This was an error. Dr. Payne-Gair never examined
Plaintiff, and her opinion was based on a partial review of the record.
Additionally, there is medical evidence in the record that supports Dr. Portoff's opinion
and undermines Dr. Payne-Gair's opinion: Dr. Alvord examined Plaintiff in August 2017 with
similar findings to those of Dr. Portnoff, as discussed in the section below. The ALJ declined to
address the consistency between these two consultative examinations, which the agency ordered
specifically to determine the severity and limiting effects of Plaintiff's mental impairments.
Instead, the ALJ rejected those doctors' opinions, both of whom assessed disabling limitations,
largely with the general finding that the opinions were inconsistent with the "medical evidence of
record." Given that two consultative examiners reached similar diagnostic impressions from
evaluations performed nearly three years apart, and given the lack of contradictory medical
opinions, the ALJ's conclusory finding is problematic.
Second, the ALJ failed to explain how Plaintiffs reported activities conflicted with Dr.
Portnoffs opinion. Tr. 21. Elsewhere in the opinion, the ALJ took issue with Plaintiff's ability to
care for children "and spouse, a task that is quite demanding, both physically and emotionally."
Tr. 21. Notably, Plaintiff had four children, but only the youngest was in her custody. Tr. 51. The
record provides few details as to what her regular childcare activities involved, and there is no
evidence that her ability to care for children in her home conflicted with Dr. Portnoffs opinion
that she suffered marked limitation in the ability to interact with coworkers and the public and
moderate limitation in the ability to maintain regular attendance in the workplace and deal with
stress encountered in a competitive work environment. Tr. 556. In particular, the only testimony
elicited by the ALJ on the subject of childcare is the following exchange:

Q How's your baby doing?
A My baby's great.

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Q Good. Okay. Imagine that she keeps you busy, but you wouldn't trade,
right?
A True.
Q Okay. All right. All right. I want to go back before the point where your
grandmother died ...

Tr. 51. Absent specific details about Plaintiff's childcare responsibilities, caring for an infant3
cannot constitute 'substantial evidence' inconsistent with Dr. Portnoff's informed opinion, and
thus the ALJ improperly relied on Plaintiff's childcare activities to reject the physician's opinion.

See Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) ("The ALJ did not develop a record
regarding the extent to which and the frequency with which [the plaintiffJ picked up the children,
played with them, bathed them, ran after them, or did any other tasks that might undermine her
claimed limitations, nor did the ALJ inquire into whether [the plaintiffJ cared for the children alone
or with the assistance of her ... other family members.").
Finally, Dr. Portnoff's opinion was consistent with his own clinical findings. The ALJ
discounted these findings because "they appear to be based on the claimant's subjective reports,
and such excessive limitations are not consistent with the record as a whole." The Ninth Circuit
has held that a physician's "opinion of disability premised to a large extent upon the claimant's
own accounts of his symptoms and limitations may be disregarded where those complaints have
been properly discounted." Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (internal
citations omitted). However, the Ninth Circuit has also held that, in the case of mental illness:
"[t]he report of a psychiatrist should not be rejected simply because
of the relative imprecision of the psychiatric methodology.... "
3

The Commissioner also argues that a single treatment note indicating that Plaintiff "successfully bottle
and breastfed her child" supports the ALJ's finding that the care Plaintiff provided to her infant and her
husband was "a task that is quite demanding, both physically and emotionally." Tr. 21. First, the ALJ did
not cite to this note or discuss this activity. Second, while the Court agrees that bottle and breastfeeding
an infant can be physically and emotionally demanding, there is no evidence in the record that it was so
demanding in this case. Additionally, Court does not find such activity to be an appropriate reason to
discount the marked social limitations evaluated by the examining psychologist.

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Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989)(quoting
Poulin v. Bowen, 817 F.2d 865, 873-74 (D.C. Cir. 1987)).
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.").
Id. 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.
Additionally, Dr. Portoff made specific findings separate from Plaintiff's subjective
reports. Regarding her general appearance and behavior, Dr. Portoff noted that there is "mild
psycho-motor slowing." Tr. 554. Her "proceed of thought, as reflected in speech, is coherent, but
moderately rambling and mildly tangential." Id.
demeanor,

is

characterized by moderate,

Her affect, "as expressed in speech and

agitated, tearful

depression." Id.

In the

discussion/prognosis section of his report, Dr. Portoff stated that Plaintiff "denies any discrete
manic episodes, but presents with mixed manic and depressive signs in the current exam." Id.
Thus, Dr. Portoff made clinical findings that were based on his own observations and not Plaintiff's
reported symptoms.
In this case, Dr. Portnoff s opinion was consistent with his own clinical findings and with
the medical evidence in the record. The opinion of one reviewing physician is not sufficient
evidence to discount his opinion, especially considering the other examining physician's consistent
opinion. The ALJ erred by improperly discounting this< opinion.
b. Examining psychologist Scott Alvord Psy.D.
In August 2017, Plaintiff underwent another consultative psychological evaluation, this
time with Scott Alvord, Psy.D. Tr 22. Like Dr. Portnoff, Dr. Alvord based his opinion on a review
of available records, clinical interview, and mental status examination. Tr. 572. Plaintiff generally

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OPINION AND ORDER

reported a history consistent with that described to Dr. Portnoff and summarized above. Tr. 57273. She began "sobbing" when discussing her grandmother's death and having discovered the
body. Tr. 572. She reported that chronic anxiety and depression impacted her occupational
success. Tr. 573. Antidepressant medication had not improved her symptoms; she had never been
prescribed a mood stabilizer. Tr. 573. She described having excessive energy and motivation while
in high school and the U.S. Navy. Tr. 573. She required less sleep, maintained multiple jobs, and
was somewhat impulsive. Tr. 573. However, she had become "perpetually depressed" with brief
episodes of excitement. Tr. 573. Current symptoms included lethargy, apathy, inconsistent sleep,
inconsistent appetite, and hopelessness. Tr. 573. She also experienced chronic nightmares,
flashbacks, emotional numbing, psychological reactivity, and low-grade paranoia; Tr. 573. She did
not leave the house for days at a time. Tr. 573. She experienced physical manifestations of anxiety
as tachycardia, difficulty catching her breath, sweating, and nausea. Tr. 574. She struggled to keep
up with chores, slept excessively, and relied on her spouse to do many household tasks. Tr. 574.
She stated, "taking care of my baby is about all I can do." Tr. 574. She had one friend and was
otherwise socially isolated. Tr. 574.
Dr. Alvord observed tearfulness, depressed mood, and downtrodden affect. Tr. 574. He
noted her working memory was intact, adequate abstract thought and insight, and low average
intellectual functioning. Tr. 575. He diagnosed bipolar II disorder, moderate to severe PTSD, and
amphetamine abuse disorder in sustained remission. Tr. 575-76. He recommended intensive
psychiatric care to address bipolar disorder. Tr. 575. He assessed guarded prognosis and opined
that she could manage her own funds. Tr. 575-76. He assessed marked limitation in the ability to
interact appropriately with the public and supervisors and respond appropriately to usual work
situations and changes in a routine work setting. Tr. 578. He assessed moderate limitation in the

PAGE-12 - OPINION AND ORDER

ability to understand, remember, and carry out complex instructions, make judgments on complex
work-related decisions, and interact appropriately with coworkers. Tr. 577-78.
The ALJ afforded "limited weight" to Dr. Alvord's opinion. Tr. 22. First, he found Dr.
Alvord's "excessive limitations in interacting with others and adapting or managing oneself ...
inconsistent with the record as a whole, including the claimant's limited medical records, her
course of medical treatment, and her activities of daily living." Tr. 22. That reasoning fails on the
same grounds addressed above. While differing on a few minor details, Dr. Alvord's opinion is
similar to and consistent with that of Dr. Portnoff; both examining doctors found marked social
impairment-be it in public and supervisor interactions, as Dr. Alvord assessed, or public and
coworker interactions, per Dr. Portnoff. Tr. 578, 556. Those opinions do not conflict with
Plaintiff's reported activities, as addressed above.
Plaintiff's failure to engage in treatment and, therefore, the absence of treatment notes,
cannot constitute substantial evidence inconsistent with these two examining medical source
opinions, particularly in light of her uninsured status, Tr. 50, and her testimony regarding the
difficulty in travel to the VA hospital in Roseburg. Tr. 67-69
Dr. Alvord did examine Plaintiff. Like Dr. Portnoff, he based his opinion on a review of
available records, clinical interview, and mental status examination. Tr. 572. That examination
formed the basis for his opinion and cannot be discounted as unsupported by objective measures.
Buck, 869 F.3d at I 049. The ALJ therefore erred in giving little weight to Dr. Alvord's opinion.
II. The ALJ did not give proper weight to the VA disability determination.

Because of the "marked similarity" between the VA and SSA disability programs, "an
ALJ must ordinarily give great weight to a VA determination of disability." McCartey v.
Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002); see also Luther v. Berryhill, 891 F.3d 872, 876

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13 - OPINION AND ORDER

(9th Cir. 2018); McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011 ). However, the VA rating is
"not conclusive and 'does not necessarily compel the SSA to reach an identical result."' Luther,
891 F.3d at 876 (quoting McLeod, 640 F.3d at 886). Thus, the "ALJ may give less weight to a
VA rating 'if he gives persuasive, specific, valid reasons for doing so that are supported by the
record."' Id. (quoting Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir.
2009)). 4 The ALJ failed to do so in this case.
The VA found Plaintiff entitled to Individual Unemployability for 70% service-connected
PTSD, effective October 29, 2014.3 Tr. 298-99, 324, 326-27. It found that she was "unable to
secure or follow a substantially gainful occupation as a result of service-connected disabilities."
Tr. 299, 327. It found her "totally and permanently disabled due solely to [her] service-connected
disabilities." Tr. 324.
The ALJ assigned "little weight" to the VA disability rating. Tr. 23. First, the ALJ
reasoned that the "justification" for the 70% rating was "unclear." Tr. 23. However, the VA
provided a long list of evidence considered in reaching its decision. Tr. 307-08, 335-36. Second,
the ALJ rejected the VA disability determination because "[t]he VA did not make a function-byfunction assessment of the claimant's capabilities (i.e., determine the claimant's residual
functional capacity) or determine whether she could perform her past relevant work or other
work that exists in significant numbers in the national economy." Tr. 23. Both of those bases
essentially reject the VA determination merely based on the differences between the two

4

Recently, the applicable regulations were amended such that adjudicators are no longer required to provide
any written analysis of disability decisions by other agencies for Social Security disability claims filed on
or after March 2 7, 2017. See 20 C.F .R. § 404.1504 (explaining that for Social Security disability claims
filed "on or after March 27, 2017, we will not provide any analysis in our determination or decision about
a decision made by another governmental agency or nongovernmental entity about whether you are
disabled, blind, employable, or entitled to benefits"). This amendment does not apply here, however,
because Plaintiff filed her disability claim before March 27, 2017. Thus, the ALJ was required to consider
the VA rating and explain the weight, if any, to assign it under relevant Ninth Circuit precedent.

PAGE - 14 - OPINION AND ORDER

agencies' disability programs and the form of their findings. That is not a valid basis to reject a
VA disability determination. Valentine, 574 F.3d at 695 ("Insofar as the ALJ distinguished the
VA's disability rating on the general ground that the VA and SSA disability inquiries are
different, her analysis fell afoul of McCartey. "); Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir.
2010).
Third, the ALJ took issue with the VA's finding that Plaintiffs PTSD was "service
connected" despite her ability to work for fifteen years following her military discharge in 1998,
sometimes at substantial gainful activity levels. Tr. 23. This Court has previously acknowledged
the on-going and sometimes delayed effects of PTSD:
PTSD is a severe anxiety disorder that can develop after an extreme
traumatic event that causes psychological trauma. A diagnosis of
PTSD requires two factors: first, the person must experience,
witness, or be confronted with an event or events that involved
actual or threatened death or serious injury, or a threat to the physical
integrity of the individual or others, and second, the person's
response must involve intense fear, helplessness, or horror.
American Psychiatric Ass'n., Diagnostic and Statistical Manual of
Mental Disorders 463-468 (4th ed., text rev., 2000) ("DSM-IVTR"). To be clinically diagnosed with PTSD, a patient must exhibit
the following symptoms: "numbing of general responsiveness";
"persistent re-experiencing of the traumatic event"; "persistent
avoidance of stimuli associated with the trauma"; and "persistent
symptoms of increased arousal." Id. PTSD may only be issued as
the formal diagnosis if the symptoms cause "clinically significant
distress or impairmenf' of major domains of daily life, such as
occupational activities, social relations, or other "important areas of
functioning," and only if these effects last for over one month. Id.
Symptoms usually present within three months of the traumatizing
event, but onset may be delayed, sometimes for many years. Id.
Bradfordv. Astrue, Civ. No. 09-6062-CL, 2010 WL 5648875, at *10 (D. Or. Oct. 26, 2010)

(adopted by District Court on January 25, 2011). In this case, Plaintiff suffered sexual and
domestic trauma both during childhood and in adulthood, as well as during active military duty.
E.g., Tr. 555, 575. Her PTSD symptoms were exacerbated following the death her grandmother,

PAGE

15 - OPINION AND ORDER

who raised her in the absence of her mentally ill and drug addicted mother. E.g., Tr. 575, 552,
46-50. The record offers no evidence to support a finding that Plaintiff worked or otherwise
functioned at a level that exceeded the VA's 2014 finding that her PTSD became totally and
permanently disabling well after her 1998 military discharge.
Finally, the ALJ reasoned that "the medical evidence of record and the claimant's
activities of daily living show a functioning level that is consistent with the residual functional
capacity above. Given that the residual functional capacity directs a finding of not disabled ... I
give little weight to the VA rating." Tr. 23. As addressed above, that reasoning is not supported
by substantial evidence in the record. In addition, this reasoning "puts the cart before the horse."

Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017). "The ALJ assesses a claimant's RFC
'based on all the relevant evidence in [the] case record."' Id. (quoting 20 C.F.R. 416.945(a)(l)).
Such evidence includes a VA determination of disability, which is ordinarily due great weight.

McCartey, 298 F.3d at 1076. Rejecting such evidence because it indicates a higher level of
disability than that found in the RFC "inverts the responsibility of an ALJ." Id. (quoting Trevizo,
862 F.3d at 1000 n.6).
The ALJ therefore erred by failing to give persuasive, specific, valid reasons for
discounting the VA disability determination in this case.

II. The ALJ did not properly evaluate Plaintiff's subjective symptom testimony.
When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective
medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrue, 504 F .3d 1028, I 036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the

PAGE-16-OPINION AND ORDER

severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. Id.
In the second stage of the analysis, the ALJ must consider the intensity, persistence, and
limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7-8. The ALJ
will consider the "[l]ocation, duration, frequency, and intensity of pain or other symptoms"
reported by the claimant, any medical sources, and any non-medical sources. Id. The ALJ's
decision must contain "specific reasons for the weight given to the individual's symptoms, be
consistent with and support by the evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Id.
Additionally, the evidence upon which the ALJ relies must be substantial. See Reddick, 157 F.3d
at 724~ Holohan v. Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341, 34546 (9 th Cir. 1991). The ALJ must also "state specifically which symptom testimony" is being
rejected and what facts lead to that conclusion. Smolen v. Charter, 80 F.3d 1273, 1284 (9th Cir.
2009) (citing Dodrill, 12 F.3d at 918). In rejecting claimant's testimony about the severity of her
symptoms, the ALJ must give "specific, clear and convincing reasons for doing so." Brown-

Hunter v. Colvin, 806 F.3d 487,493 (9th Cir. 2015) (quoting Lingenfelter v. Astrue, 504 F.3d
1029, 1036 (9th Cir. 2007)).
At the hearing, Plaintiff's testimony was consistent with the history she provided to Dr.
Portoff and Dr. Alvord. She testified that her grandmother raised her. Tr. 48. She was living with
her grandmother at the time of her death. Tr. 48. She was prescribed Gabapentin at the time but
had not engaged in therapy for about a year. Tr. 49. She was not medically insured at the time. Tr.
50. She engaged in therapy for PTSD from 2005 to 2010, which helped her learn coping skills. Tr.
61. However, she continued to struggle with being around others despite therapy. Tr. 62. She had

PAGE - 17 - OPINION AND ORDER

difficulty working at a car dealership; her coworkers thought she "was a little bit crazy," and she
was "scared to death to work there because [she] was scared of people." Tr. 62. She was never
comfortable selling cars and tended to say the wrong thing or overshare with customers. Tr. 6364. She was terminated after taking time off work to transport her grandmother to the hospital. Tr.
46-47. However, she "wasn't selling any cars" and believed her employer was looking for a reason
to fire her. Tr. 47. She was homeless for two years following her grandmother's death. Tr. 66.
Plaintiff testified to frequent depression symptoms and lifelong impulsivity. Tr. 54.
Although a potential bipolar diagnosis had been suggested in the past, she did not "want to think
about that because [her] mom had it and she [was] nuts." Tr. 55. At the time of the hearing she
was interested in treatment. Tr. 56. However, she testified to difficulty traveling to Roseburg for
VA mental health services. Tr. 67-69. She had been sexually assaulted in the military. Tr. 72-73.
She was sent to the "psycho department" after the assault. Tr. 73. She began to experience anxiety
symptoms following the assault. Tr. 74. She was discharged; the military recorded the basis for
her discharge as "personality disorder" to "help [her] get out faster." Tr. 71-72. At the time of the
hearing, Plaintiff had four children, but only one was in her care. Tr. 51. She lived in a house with
her husband and child. Tr. 56. Her husband had renal failure, a history of substance abuse, and was
"a little schizo." Tr. 59.
The ALJ determined that Plaintiff established severe mental health impairments including
PTSD and bipolar disorder, which could reasonably have produced some degree of the symptoms
she alleged. Tr. 19. However, he also found that Plaintiff's "statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not entirely consistent with the medical
evidence and other evidence in the record." Tr. 19. The reasons given by the ALJ for discounting
Plaintiff's testimony are not convincing.

PAGE-18

OPINION AND ORDER

First, the ALJ notes that despite her level of depression and anxiety and related PTSD-type
symptoms, "she repeatedly declined to see a psychiatrist because her symptoms were medically
managed." Tr. 20. The ALJ cited to two exhibits, 3F and IOF/4, and "hearing testimony." A
review of those exhibits shows that while Plaintiff did indeed decline to seek psychiatric care at
times (ex. 3F, Tr. 511-512), she also engaged in psychiatric care at other times (ex. IOF, Tr 584682). There is no evidence in the record that the times she declined care she did so "because her
symptoms were medically managed." Instead, the evidence in the record shows that she, like many
people who suffer from mental illnesses, did not want to admit the full extent of her illness and
wanted to avoid the stigma of a diagnosis. Tr. 55 ("I didn't want to think about [having bipolar
disorder] because my mom had it and she's nuts."). She also testified that she lacked the resources
to seek care because she did not have insurance, tr. 50, and was not able to travel to the VA hospital
in Roseburg. Tr. 67-69.
The ALJ next points to the lack of medical records around the time of her alleged onset
date. Tr. 20.

However, the lack of treatment records is the reason the agency ordered the

consultative medical examinations by Dr. Portoff and Dr. Alvord, both of which confirmed the
Plaintiffs bipolar disorder diagnosis and disabling symptoms. Additionally, the VA determination
supports Plaintiffs claim of disabling PTSD symptoms dating back to the alleged onset date.
Finally, the ALJ took issue with the fact that Plaintiff "cared for her infant child and
spouse." Tr. 21. As discussed above, this is not an appropriate reason to discount Plaintiffs
testimony because there is no evidence in the record as to what that care entailed and whether or
not it is consistent with her subjective symptoms. Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir.
2017) ("the mere fact that [the claimant cared] for small children [did] not constitute an adequately
specific conflict with her reported limitations.").

PAGE - 19 - OPINION AND ORDER

REMAND
Within a 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 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 Social Security Act. Strauss v. Comm 'r of the Soc. Sec. Admin.,
635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the "credit-as-true" doctrine is "settled" and binding. Garrison, 759
F.3d at 999. The court first determines whether the ALJ made a legal error and then reviews the
record as a whole to determine whether the record is fully developed, the record is free from
conflicts and ambiguities, and there is any useful purpose in further proceedings. Dominguez v.

Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has been fully developed and there
are no outstanding issues left to be resolved does the district court consider whether the ALJ would
be required to find the claimant disabled on remand if the improperly discredited evidence were
credited as true. Id. If so, the district court can exercise its discretion to remand for an award of
benefits. Id. The district court retains flexibility, however, and is not required to credit statements
as true because the ALJ made a legal error. Id. at 408.
Here, the ALJ erred by improperly discounting the medical opinions of Dr. Portoff and Dr.
Alvord, by improperly discounting the VA's disability rating, and by improperly discounting
Plaintiffs subjective symptom testimony. All three of these categories of evidence are consistent

PAGE - 20 - OPINION AND ORDER

with each other, and provide substantial support for one another in the record, and all three are
consistent with the record as a whole. The Court cannot discern any other conflicts or ambiguities
in the record and does not see any useful purpose in further proceedings.
When presented with the hypothetical restrictions consistent with the evaluations of Dr.
Portoff and Dr. Alvord, the Vocational Expert testified that "there would be no competitive work"
for someone who had inappropriate interactions with a supervisor. Tr. 84. Additionally, the VE
testified that there would be no competitive work for "a person who had difficulty due to
psychological symptoms attending work some days, and so would be absent due to mental health
symptoms." Tr. 82. Thus, the record has been fully developed and there are no outstanding issues
left to be resolved. The Court finds that the ALJ would be required to find the claimant disabled
on remand if the improperly discredited evidence, as discussed above, were credited as true.

ORDER
Based on the foregoing, the Court exercises its discretion and orders that the decision of
the Commissioner is REVERSED and REMANDED for an immediate payment of benefits.
IT IS SO ORDERED and DATED this

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~ ; of December, 2019.