James v. Colvin, No. 1:2014cv03049 - Document 23 (E.D. Wash. 2015)

Court Description: ORDER granting 17 Plaintiff's Motion for Summary Judgment and denying 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)

Download PDF

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 10 11 PANSY VIRGINIA JAMES, No. 1:14-CV-03049-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 13 14 15 16 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 17 18 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 19 No. 17, 18. Attorney Thomas Bothwell represents Pansy Virginia James 20 (Plaintiff); Special Assistant United States Attorney Benjamin J. Groebner 21 represents the Commissioner of Social Security (Defendant). The parties have 22 consented to proceed before a magistrate judge. ECF No. 4, 22. After reviewing 23 the administrative record and the briefs filed by the parties, the Court GRANTS, in 24 part, Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for 25 Summary Judgment; and REMANDS the matter to the Commissioner for 26 additional proceedings pursuant to 42 U.S.C. § 405(g). 27 JURISDICTION 28 Plaintiff filed applications for Supplemental Security Income (SSI) and ORDER GRANTING PLAINTIFF‘S MOTION . . . - 1 1 Disability Insurance Benefits (DIB) on March 15, 2010, alleging disability since 2 July 15, 2005, due to attention deficit hyperactivity disorder (ADHD), borderline 3 personality disorder, post-concussion syndrome, migraine headaches, cervicogenic 4 headaches, and seizures. Tr. 124-135, 149. The applications were denied initially 5 and upon reconsideration. Tr. 75-81, 83-86. Administrative Law Judge (ALJ) 6 Mary Gallagher Dilley held a hearing on July 2, 2012, at which Plaintiff, 7 represented by counsel, and vocational expert (VE) Trever Duncan testified. Tr. 8 31-66. The ALJ issued an unfavorable decision on August 30, 2012. Tr. 11-25. 9 The Appeals Council denied review on February 19, 2014. Tr. 1-5. The ALJ’s 10 August 30, 2012, decision became the final decision of the Commissioner, which is 11 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 12 action for judicial review on April 18, 2014. ECF No. 1, 4. 13 14 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 15 ALJ’s decision, and the briefs of the parties. The records most applicable to the 16 issues being appealed are only briefly summarized here. 17 Plaintiff was 28 years old at the alleged date of onset. Tr. 124. Plaintiff 18 completed the twelfth grade in 1994, she received training as a Certified Nurse’s 19 Assistant (CNA) in 1999, and she completed Construction Tech Class in 2006. Tr. 20 150. She has past work as an Avon distributor, a CNA, a childcare provider, a 21 receptionist, and a housekeeper. Tr. 43, 62, 157-161. Plaintiff reported she 22 stopped working because of her conditions and because the temporary job she had 23 ended. Tr. 150. At the administrative hearing, Plaintiff described chronic pain, 24 poor social skills, and difficulty concentrating as limitations preventing her from 25 working. Tr. 42, 44, 49-51. 26 In 2007 and 2008, Plaintiff received counseling from Central Washington 27 Comprehensive Mental Health. Tr. 846-917. While receiving counseling, Plaintiff 28 was evaluated by Heather McClure, ARNP, on December 27, 2007. Tr. 910-912. ORDER GRANTING PLAINTIFF‘S MOTION . . . - 2 1 In the interview, Nurse McClure observed that Plaintiff had a “very gregarious 2 nature, which is somewhat off-putting,” and this nature was exacerbated by her 3 anxiety. Tr. 912. Additionally, she noted Plaintiff was disheveled, her behavior 4 was “impulsive and dramatic,” “she would keep talking over me when I asked her 5 questions, and occasionally would interrupt me,” her thought process was 6 obsessive, and her speech was pressured. Id. Nurse McClure concluded that 7 Plaintiff had “problems focusing and clearly [had] problems remaining on task 8 through even a simple conversation.” Id. In October 2008, Plaintiff began seeing 9 Esther Hunte, M.D. Tr. 557. Dr. Hunte supplied opinions regarding Plaintiff’s 10 functional abilities on May 7, 2009, March 19, 2010, March 8, 2011, and June 20, 11 2012. Tr. 404-405, 407-408, 918-919, 1025. In September of 2009, Plaintiff was 12 evaluated by Chris DeVilleneuve, MBA/HCM, M.Ed., DMHP, who concluded that 13 Plaintiff had one marked limitation and three moderate limitations in her cognitive 14 abilities and a marked limitation in all social abilities. Tr. 399. 15 16 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 17 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 18 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 19 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 20 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 21 not supported by substantial evidence or if it is based on legal error. Tackett v. 22 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 23 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 24 another way, substantial evidence is such relevant evidence as a reasonable mind 25 might accept as adequate to support a conclusion. Richardson v. Perales, 402 26 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 27 interpretation, the court may not substitute its judgment for that of the ALJ. 28 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial ORDER GRANTING PLAINTIFF‘S MOTION . . . - 3 1 evidence will still be set aside if the proper legal standards were not applied in 2 weighing the evidence and making the decision. Brawner v. Secretary of Health 3 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 4 supports the administrative findings, or if conflicting evidence supports a finding 5 of either disability or non-disability, the ALJ’s determination is conclusive. 6 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 7 8 9 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 10 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 11 through four, the burden of proof rests upon claimants to establish a prima facie 12 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 13 burden is met once claimants establish that physical or mental impairments prevent 14 them from engaging in their previous occupations. 20 C.F.R. §§ 404.1520(a)(4), 15 416.920(a)(4). If claimants cannot do their past relevant work, the ALJ proceeds 16 to step five, and the burden shifts to the Commissioner to show that (1) the 17 claimants can make an adjustment to other work, and (2) specific jobs exist in the 18 national economy which claimants can perform. Batson v. Comm’r of Soc. Sec. 19 Admin., 359 F.3d 1190, 1193-1194 (2004). If claimants cannot make an 20 adjustment to other work in the national economy, a finding of “disabled” is made. 21 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 22 ADMINISTRATIVE DECISION 23 On August 30, 2012, the ALJ issued a decision finding Plaintiff was not 24 25 26 27 28 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date, July 15, 2005. Tr. 13. At step two, the ALJ determined Plaintiff had the following severe impairments: mood disorder; post-traumatic stress disorder (PTSD); ADHD; ORDER GRANTING PLAINTIFF‘S MOTION . . . - 4 1 cognitive disorder, not otherwise specified; personality disorder; seizures; 2 headaches; and mild degenerative disc disease. Tr. 13-16. 3 At step three, the ALJ found Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled the severity of one of 5 the listed impairments. Tr. 16-17. 6 7 At step four, the ALJ assessed Plaintiff’s residual functional capacity (RFC) and determined Plaintiff could perform light work with the following limitations: 8 9 10 11 12 13 14 15 16 Specifically, she can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand and walk about 6 hours in an 8-hour workday with normal breaks, and sit about 6 hours in an 8-hour workday with normal breaks. She can frequently balance, stoop, and climb ramps and stairs and can occasionally kneel and crawl. She is restricted from climbing ladders, ropes, and scaffolds and should avoid concentrated exposure to extreme cold, extreme heat, noise, vibration, and hazards (such as working around machinery or heights). She retains the memory and concentration to understand, remember, and carry out tasks that do not involve more than basic math calculations. She is capable of occasional superficial contact with co-workers and the general public. She can perform work learned by demonstration. 17 18 Tr. 17. The ALJ concluded that Plaintiff was able to perform her past relevant 19 work as a housekeeper. Tr. 23. 20 In the alternative to a step four determination, the ALJ proceeded with a step 21 five determination, concluding that, considering Plaintiff’s age, education, work 22 experience and RFC, and based on the testimony of the vocational expert, there 23 were other jobs that exist in significant numbers in the national economy Plaintiff 24 could perform, including the occupations of small product assembler and hand 25 packager. Tr. 24. 26 Thus, the ALJ concluded Plaintiff was not under a disability within the 27 meaning of the Social Security Act at any time from July 15, 2005, through the 28 date of the ALJ’s decision, August 30, 2012. Tr. 24. ORDER GRANTING PLAINTIFF‘S MOTION . . . - 5 1 ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred by (1) failing to accord proper weight 5 to the medical opinions of Esther Hunte, M.D., Heather McClure, ARNP, and 6 Chris DeVilleneuve, MBA/HCM, M.Ed., DMHP; and (2) failing to present a 7 hypothetical to the vocational expert that accounted for all of Plaintiff’s 8 limitations. 9 10 DISCUSSION A. 11 Weight of Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 12 opinions expressed by treating physician Dr. Hunte, Nurse Practitioner Heather 13 McClure, and mental health professional Chris DeVilleneuve. ECF No. 17 at 10- 14 18. 15 1. Esther Hunte, M.D. 16 Dr. Hunte began treating Plaintiff in October 2008. Tr. 557. She gave 17 opinions regarding Plaintiff’s functional abilities on May 7, 2009, March 19, 2010, 18 March 8, 2011, and June 20, 2012. Tr. 404-405, 407-408, 918-919, 1025. The 19 ALJ addresses three of the opinions in her decision, omitting any reference to the 20 March 19, 2010, opinion. Tr. 22. Plaintiff asserts that the ALJ erred in the 21 treatment of each of these four opinions. ECF No. 17 at 11-15. 22 In weighing medical source opinions, the ALJ should distinguish between 23 three different types of physicians: (1) treating physicians, who actually treat the 24 claimant; (2) examining physicians, who examine but do not treat the claimant; and 25 (3) nonexamining physicians who neither treat nor examine the claimant. Lester v. 26 Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more weight to the 27 opinion of a treating physician than to the opinion of an examining physician. Orn 28 v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The ALJ should give more weight to ORDER GRANTING PLAINTIFF‘S MOTION . . . - 6 1 the opinion of an examining physician than to the opinion of a nonexamining 2 physician. Id. 3 When a treating physician’s opinion is not contradicted by another 4 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 5 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 6 physician’s opinion is contradicted by another physician, the ALJ is only required 7 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 8 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). This can be done by setting out a 9 detailed and thorough summary of the facts and conflicting clinical evidence, 10 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 11 F.2d 747, 751 (9th Cir. 1989). “The ALJ must do more than offer [her] 12 conclusions. [She] must set forth [her] own interpretations and explain why they, 13 rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421–22 14 (9th Cir. 1988). 15 Both Plaintiff and Defendant agree that Dr. Hunte qualifies as a treating 16 physician. ECF No. 17 at 11; ECF No. 18 at 4. Plaintiff asserts that the clear and 17 convincing standard applies. ECF No. 17 at 10. Defendant asserts that specific 18 and legitimate standard applies. ECF No. 18 at 6. In any event, the Court 19 determines that the ALJ’s reasons for rejecting Dr. Hunte’s opinions fails to meet 20 the lower standard of specific and legitimate. See infra. Therefore, the higher 21 standard of clear and convincing is also not met. 22 On May 7, 2009, Dr. Hunte diagnosed Plaintiff with neck sprain, 23 cervicogenic headaches, migraine headaches, and post-concussion syndrome. Tr. 24 404. Dr. Hunte opined that Plaintiff had the following RFC: sit for four hours and 25 perform occasional standing and walking; no additional walking or standing; no 26 repetitive pushing/pulling with the upper extremities bilaterally; six hours of 27 repetitive use of feet and legs bilaterally; no frequent stooping; no frequent 28 bending; lifting and carrying five pounds frequently with occasionally carrying up ORDER GRANTING PLAINTIFF‘S MOTION . . . - 7 1 to ten pounds; and no concentrating for more than five minutes. Tr. 404-405. 2 Additionally, Plaintiff was precluded from participating in a job search lasting 35 3 hours per week, and she was precluded from community service activities. Tr. 4 405. 5 The ALJ rejected this opinion, for three reasons: (1) it was “disproportionate 6 to other evidence in the record”; (2) it was disproportionate to Dr. Hunte’s own 7 contemporaneous treatment notes; and (3) it was inconsistent with claimant’s 8 admitted abilities and activities. Tr. 22. 9 In order to satisfy the “specific, legitimate reasons” requirement, it is not 10 sufficient to simply state that a treating physician’s opinion is not supported by 11 objective findings or is contrary to the conclusions mandated by the evidence. 12 Embrey, 849 F.2d at 421. “The ALJ must do more than offer [her] conclusions. 13 [She] must set forth [her] own interpretations and explain why they, rather than the 14 doctors’, are correct.” Id. at 421-22. 15 The ALJ was required to set forth her interpretations of the doctor’s notes 16 and explain why they were insufficient to support her medical conclusions 17 regarding Plaintiff’s inability to work. In all three of the reasons the ALJ gave for 18 rejecting the May 7, 2009, opinion, she made conclusory statements without 19 stating what evidence in the record supported her conclusion: she failed to state 20 what evidence in the record was disproportional to Dr. Hunte’s opinion; she failed 21 to state what evidence in Dr. Hunte’s treatment notes were disproportionate to Dr. 22 Hunte’s opinion; and she failed to state which of Plaintiff’s abilities and activities 23 were inconsistent with Dr. Hunte’s opinion. Therefore, none of the ALJ’s reasons 24 qualify as a specific and legitimate reason. 25 On March 19, 2010, Dr. Hunte diagnosed Plaintiff as pregnant, migraine 26 headaches, bipolar disorder, and seizer disorder. Tr. 407-408. Dr. Hunte opined 27 that Plaintiff had the following RFC: sit for six hours and perform occasional 28 standing and walking; walk for one hour; no additional standing; no repetitive ORDER GRANTING PLAINTIFF‘S MOTION . . . - 8 1 pushing/pulling with the upper extremities; one hour of repetitive use of feet and 2 legs bilaterally; no frequent stooping; no frequent bending; and lifting and carrying 3 five pounds frequently with occasionally carrying up to ten pounds. Id. Dr. Hunte 4 further precluded Plaintiff from participating in a job search lasting 35 hours per 5 week, but did state Plaintiff could perform six hours of community service a week. 6 Id. The ALJ’s decision is silent regarding this opinion. 7 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c) states that “we will always 8 consider the medical opinions in your case record together with the reset of the 9 relevant evidence we receive,” and requires the ALJ to evaluate every medical 10 11 12 opinion received, “[r]egardless of its source.” The ALJ was required to address all medical opinions in the record. Her failure to do so is error. 13 On March 8, 2011, Dr. Hunte limited Plaintiff to light work stating that 14 Plaintiff had “[d]ifficulty in sitting in one position for long periods of time bending 15 over, lifting anything greater than 20 lbs. She is having [sic] doing fine 16 manipulations with her hands as well. Her bipolar and attention deficient make 17 concentration and interacting with people difficult,” and “[s]he has difficulty with 18 concentration and memory retention. Also sitting for long periods of time would 19 be difficult.” Tr. 918-919. The ALJ concluded that this opinion was “consistent 20 with other medical evidence of record and the claimant’s activities of daily living, 21 and support[s] the synthesis reached by the DDS consultants,” but the ALJ did not 22 accept Dr. Hunte’s opinion regarding Plaintiff’s ability to concentrate “as it is out 23 of proportion to the objective evidence.” Tr. 22. 24 The ALJ’s statement regarding this opinion contains two errors: (1) the ALJ 25 failed to resolve the ambiguity of Dr. Hunte’s statement regarding Plaintiff’s 26 manipulative limitations; and (2) the ALJ failed to specifically state what objective 27 evidence was out of proportion with Dr. Hunte’s statement concerning Plaintiff’s 28 concentration and memory. ORDER GRANTING PLAINTIFF‘S MOTION . . . - 9 1 First, it is unclear whether Dr. Hunte was limiting Plaintiff’s manipulative 2 abilities as it appears a necessary word is missing. Tr. 918. The ALJ stated that 3 this opinion was consistent with the opinion of the DDS consultant, Dr. Wolfe, but 4 Dr. Wolfe found that Plaintiff had no manipulative limitations. Tr. 604. 5 The ALJ is responsible for resolving ambiguities. Andrews, 53 F.3d at 1039. 6 Ambiguous evidence triggers the ALJ’s duty to further develop the record. Mayes 7 v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001). 8 The ALJ’s failure to address the ambiguity in her decision and resolve it is 9 an error. If the ambiguity could not be resolved, the ALJ was required to further 10 develop the record to clarify what Dr. Hunte was attempting to communicate. 11 Second, as addressed above, “the ALJ must do more than offer [her] 12 conclusions. [She] must set forth [her] own interpretations and explain why they, 13 rather than the doctors’, are correct.” Embrey, 849 F.2d at 421-422. Therefore, the 14 ALJ’s statement that Plaintiff’s ability to concentrate “is out of proportion to the 15 objective evidence” without specific reference to objective evidence is insufficient 16 to meet the specific and legitimate standard. 17 On June 20, 2012, Dr. Hunte opined that Plaintiff was not capable of 18 performing any type of work on a reasonably continuous, sustained basis, stating 19 that it was “[m]ostly a concentration and comprehension issue. Physically she may 20 be able to do sedentary work but her ability to concentrate longer than 5 minutes is 21 impaired.” Tr. 1025. 22 The ALJ rejected this opinion, for four reasons: (1) it was “disproportionate 23 to other evidence in the record”; (2) it was disproportionate to Dr. Hunte’s own 24 contemporaneous treatment notes; (3) it was inconsistent with claimant’s admitted 25 abilities and activities, and (4) it “was created by Counsel in connection with an 26 effort to generate evidence for the current appeal,” noting that “[a]lthough such 27 evidence is certainly legitimate and deserves due consideration, the context in 28 which it was produced cannot be entirely ignored.” Tr. 22. ORDER GRANTING PLAINTIFF‘S MOTION . . . - 10 1 The first three reasons the ALJ gave for rejecting the June 20, 2012, opinion 2 failed to state what evidence in the record was disproportional to Dr. Hunte’s 3 opinion, what evidence in Dr. Hunte’s treatment notes were disproportionate to Dr. 4 Hunte’s opinion, and which of Plaintiff’s abilities and activities were inconsistent 5 with Dr. Hunte’s opinion. As discussed above, in order to satisfy the “specific, 6 legitimate reasons” requirement, “the ALJ must do more than offer [her] 7 conclusions. [She] must set forth [her] own interpretations and explain why they, 8 rather than the doctors’, are correct.” Embrey, 849 F.2d at 421-422. Therefore, 9 none of these reasons qualify as a specific and legitimate reason. 10 The fourth reason the ALJ provided for rejecting the June 20, 2012, opinion, 11 that it was procured by counsel to support Plaintiff’s appeal, is not a specific and 12 legitimate reason to reject the opinion. See Reddick v. Chater, 157 F.3d 715, 726 13 (9th Cir. 1998) (“in the absence of other evidence to undermine the credibility of a 14 medical report, the purpose for which the report was obtained does not provide a 15 legitimate basis for rejecting it”); Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th 16 Cir. 1988) (the source of referral was found to be relevant where there was no 17 objective medical basis for the opinion); Saelee v. Chater, 94 F.3d 520, 522 (9th 18 Cir. 1996) (the source of the referral was found to be relevant where the ALJ found 19 “actual improprieties” to question the credibility of the medical report). 20 Here, there is no other evidence to undermine the credibility of the medical 21 report alleged by the ALJ. The ALJ states that she finds the evidence is 22 disproportional to the opinion, but she does not find that there is no objective 23 medical basis for the opinion. Additionally, the ALJ does not find that Dr. Hunte 24 committed any actual improprieties in forming the opinion at the request of 25 counsel. Therefore, the purpose for which the report was obtained is not a 26 legitimate basis for rejecting it. 27 28 In conclusion, the ALJ failed to supply legally sufficient reasons for rejecting the opinions of Dr. Hunte. Therefore, the case shall be remanded for a de ORDER GRANTING PLAINTIFF‘S MOTION . . . - 11 1 novo hearing to properly address these opinions. 2 2. Heather McClure, ARNP 3 Nurse McClure evaluated Plaintiff on December 27, 2007, and opined that 4 Plaintiff “has problems focusing and clearly has problems remaining on task 5 through even a simple conversation.” Tr. 912. 6 The ALJ’s decision is void of any reference to Nurse McClure. Tr. 11-25. 7 The Code of Federal Regulations requires evidence from “accepted medical 8 sources” to establish the existence of a medically determinable impairment. 20 9 C.F.R. §§ 404.1513(a), 416.913(a) “Accepted medical sources” include licensed 10 physicians, licensed psychologists, licensed optometrists, licensed podiatrists, and 11 qualified speech-language pathologists. Id. “Other sources” include nurse 12 practitioners, physicians’ assistants, therapists, teachers, social workers, spouses 13 and other non-medical sources. 20 C.F.R. § 404.1513(d). The opinions of “other 14 sources” are relevant to provide insight into the severity of a claimant’s 15 impairments and how they affect a claimant’s ability to function. 20 C.F.R. §§ 16 404.1513, 416.913; S.S.R. 06-03p. The opinions of “other sources” as to a 17 claimant’s symptoms is competent evidence the ALJ must take into account, unless 18 he provides germane reasons to reject the source’s opinion. Nguyer v. Chater, 100 19 F.3d 1462, 1467 (9th Cir. 1996). 20 Defendant argues that the ALJ’s failure to address Nurse McClure’s opinion 21 is not in error because the opinion is not probative evidence. ECF No. 18 at 15-16. 22 In support of this assertion, Defendant cites Vincent v. Heckler, 739 F.2d 1393, 23 1394-1395 (9th Cir. 1984). ECF No. 18 at 15. In Vincent, “other sources” opined 24 that the claimant had a serious mental impairment a resulting from a stroke. Id. 25 This diagnostic determination is reserved for “acceptable medical sources.” 20 26 C.F.R. §§ 404.1513(a), 416.913(a). Here, Nurse McClure’s opinion was directed 27 at the severity of Plaintiff’s impairments and how they affect Plaintiff’s ability to 28 function. Therefore, the facts of Vincent are not parallel to the facts of this case, ORDER GRANTING PLAINTIFF‘S MOTION . . . - 12 1 2 and Vincent is not applicable. While the Court acknowledges that Nurse McClure is not an “acceptable 3 medical source” for determining the existence of a severe impairment, her opinion 4 may provide insight into the severity of Plaintiff’s impairments and how they 5 affect Plaintiff’s ability to function. 20 C.F.R. §§ 404.1513, 416.913; S.S.R. 06- 6 03p. The regulations required the ALJ to address Nurse McClure’s opinion 7 regarding the severity of Plaintiff’s impairments and how they affect Plaintiff’s 8 ability to function, and she failed to do so. The ALJ’s failure to discuss Nurse 9 McClure’s opinion regarding these matters is error. 10 On remand, the ALJ is directed to consider the opinion of Nurse McClure as 11 to Plaintiff’s impairments and how they affect her ability to function, and assign it 12 appropriate weight. 13 3. Chris DeVilleneuve, MBA/HCM, M.Ed., DMHP 14 Mr. DeVilleneuve evaluated Plaintiff on September 9, 2009, and concluded 15 Plaintiff had a marked limitation in the following abilities: to exercise judgment 16 and make decisions; to relate appropriately to co-workers and supervisors; to 17 interact appropriately in public contacts, to respond appropriately to and tolerate 18 the pressures and expectations of a normal work setting; to care for self, including 19 personal hygiene and appearance; and to maintain appropriate behavior in a work 20 setting. Tr. 399. Additionally, Mr. DeVilleneuve opined that Plaintiff had a 21 moderate limitation in the following abilities: to understand, remember and 22 following complex (more than two step) instructions; to learn new tasks; and to 23 perform routine tasks. Id. 24 The ALJ gave this opinion “no weight” for four reasons: (1) it does not 25 conform to the other proof in the record including the records from Mr. 26 DeVilleneuve’s office; (2) the limitations are out of proportion to the claimant’s 27 ability to sustain daily work-related activities and social functioning; (3) Mr. 28 DeVilleneuve is a non-acceptable medical source; and (4) Mr. DeVilleneuve relied ORDER GRANTING PLAINTIFF‘S MOTION . . . - 13 1 heavily on the subjective report of symptoms and limitations provided by the 2 claimant. Tr. 22. 3 The Code of Federal Regulations requires evidence “from accepted medical 4 sources to establish whether you have a medically determinable impairment.” 20 5 C.F.R. §§ 404.1513(a), 416.913(a) “Accepted medical sources” include licensed 6 physicians, licensed psychologists, licensed optometrists, licensed podiatrists, and 7 qualified speech-language pathologists. Id. “Other sources” include nurse 8 practitioners, physicians’ assistants, therapists, teachers, social workers, spouses 9 and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). While the 10 ALJ is required to consider observations by “other sources” as to how an 11 impairment affects a claimant’s ability to work, Id., the ALJ can disregard 12 evidence from an “other source,” by setting forth reasons “that are germane to each 13 witness.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Further, the 14 reasons “germane to each witness” must be specific. Stout v. Comm’r, 454 F.3d 15 1050, 1054 (9th Cir. 2006) (explaining that “the ALJ, not the district court, is 16 required to provide specific reasons for rejecting lay testimony”). 17 The Court finds that the reasons the ALJ gave for rejecting Mr. 18 DeVilleneuve’s opinion were sufficient. But, as discussed above, the ALJ failed to 19 consider the opinion of Nurse McClure, which could be considered to support Mr. 20 DeVilleneuve’s conclusions regarding Plaintiff’s marked limitations in social 21 functioning. Nurse McClure noted Plaintiff’s behavior was “impulsive and 22 dramatic,” her “gregarious nature” was “somewhat off-putting,” and she 23 interrupted and talked over the interviewer. Tr. 912. These observations arguably 24 support Mr. DeVilleneuve’s conclusion of marked limitations in the ability to 25 relate to co-workers and supervisors, ability to interact in public contacts, and 26 ability to maintain appropriate behavior in a work setting. Additionally, Nurse 27 McClure noted that Plaintiff was disheveled and her clothes were “not exactly 28 clean.” This may be seen as support for Mr. DeVilleneuve’s opinion that Plaintiff ORDER GRANTING PLAINTIFF‘S MOTION . . . - 14 1 had a marked limitation in the ability to care for self, including personal hygiene 2 and appearance. Therefore, on remand, the ALJ will reconsider Mr. 3 DeVilleneuve’s opinion in light of the weight given to other opinions in the record. 4 B. 5 6 7 RFC and Hypothetical Question Plaintiff argues that the VE’s testimony lacks evidentiary value because it was provided in response to an incomplete hypothetical. ECF No. 17 at 19. A claimant’s RFC is “the most [a claimant] can still do despite [her] 8 limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, 9 Appendix 2, § 200.00(c) (defining RFC as the “maximum degree to which the 10 individual retains the capacity for sustained performance of the physical-mental 11 requirements of jobs”). In formulating a RFC, the ALJ weighs medical and other 12 source opinions and also considers the claimant’s credibility and ability to perform 13 daily activities. See, e.g., Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1226 14 (9th Cir. 2009). 15 Considering the case is being remanded, the ALJ is instructed to form a new 16 RFC in light of a reweighing of the opinion evidence as directed above and present 17 that RFC to a VE, if necessary. 18 19 REMEDY Plaintiff argues that the ALJ’s decision should be reversed and remanded for 20 an immediate award of benefits. EFC No. 17 at 20. The decision whether to 21 remand for further proceedings or reverse and award benefits is within the 22 discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 23 1989). The Court may award benefits if the record is fully developed and further 24 administrative proceedings would serve no useful purpose. Smolen v. Chater, 80 25 F.3d 1273, 1292 (9th Cir. 1996). Remand for additional proceedings is appropriate 26 when additional proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 27 759, 763 (9th Cir. 1989). In this case, it is not clear from the record that the ALJ 28 would be required to find Plaintiff disabled if all the evidence were properly ORDER GRANTING PLAINTIFF‘S MOTION . . . - 15 1 evaluated. Further proceedings are necessary for a proper determination to be 2 made. 3 On remand, the ALJ is to reweigh the medical opinions of Dr. Hunte, Nurse 4 McClure, and Mr. DeVilleneuve and reassess Plaintiff’s RFC, taking into 5 consideration the opinions of the aforementioned medical providers and all other 6 medical evidence of record relevant to Plaintiff’s claim for disability benefits. The 7 ALJ, if warranted, is directed to elicit medical expert testimony to assist the ALJ in 8 formulating a new RFC determination. The ALJ is directed to obtain testimony 9 from a vocational expert and take into consideration any other evidence or 10 testimony relevant to Plaintiff’s disability claim. 11 CONCLUSION 12 Accordingly, IT IS ORDERED: 13 1. 14 15 Defendant‘s Motion for Summary Judgment, ECF No. 18, is DENIED. 2. Plaintiff‘s Motion for Summary Judgment, ECF No. 17, is 16 GRANTED, in part, and the matter is REMANDED to the Commissioner for 17 additional proceedings consistent with this Order. 18 3. Application for attorney fees may be filed by separate motion. 19 The District Court Executive is directed to file this Order and provide a copy 20 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 21 and the file shall be CLOSED. 22 DATED December 28, 2015. 23 24 25 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER GRANTING PLAINTIFF‘S MOTION . . . - 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.