Jones v. Colvin, No. 1:2014cv03091 - Document 24 (E.D. Wash. 2015)

Court Description: ORDER Granting In Part 18 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JESSICA JONES, 10 No. 1:14-CV-03091-JTR Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 v. 13 CAROLYN W. COLVIN, 14 Commissioner of Social Security, 15 Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 Nos. 18, 20. Attorney D. James Tree represents Jessica Jones (Plaintiff); Special 19 Assistant United States Attorney Benjamin J. Groebner represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed an application for Supplemental Security Income (SSI) on 28 June 22, 2011, alleging disability for a closed period between June 1, 2007, and ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 1 1 August 3, 2012, due to physical and mental impairments. Tr. 215-24. 2 The SSI application was denied initially and upon reconsideration. Tr. 75- 3 87, 88-101. Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing 4 on January 15, 2013, at which Plaintiff, represented by counsel, testified as did 5 vocational expert (VE) Trevor Duncan. Tr. 34-71. With Plaintiff’s consent, the 6 ALJ amended the disability onset date to July 16, 2008, the date Plaintiff last 7 worked. Tr. 69-70. The ALJ issued an unfavorable decision on March 22, 2013. 8 Tr. 14-28. The Appeals Council denied review. Tr. 1-4. The ALJ’s March 2013 9 decision became the final decision of the Commissioner, which is appealable to the 10 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 11 review on June 27, 2014. ECF No. 1, 4. 12 STATEMENT OF FACTS 13 The facts of the case are set forth in the administrative hearing transcript, the 14 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 15 here. 16 Plaintiff was 38 years old at the beginning of the relevant period. Tr. 39. 17 Plaintiff attended school through the eighth grade, and has not obtained a GED. 18 Tr. 284. Plaintiff has worked in a warehouse, as a deli and seafood clerk at 19 Walmart, and as a commercial truck driver from 2005 to 2008. Tr. 284, 301. In 20 August 2012, Plaintiff started working as a cook at Triumph Treatment Center. Tr. 21 38, 69-70. Plaintiff testified that she “love[s] the job, but it’s really hard on [her].” 22 Tr. 44. Plaintiff gets along well with the other people at her job, and reported that 23 she generally “get[s] along with people.” Tr. 44, 49. 24 Plaintiff’s life has been tragic in many ways. She was physically and 25 sexually abused as a child by her step mother and other family members, and 26 abused as an adult by her husbands and partners. Tr. 370-72. Plaintiff has been 27 homeless for periods of time. Tr. 40, 55-56. Plaintiff has a history of depression, 28 drug use, and self-mutilation. See Tr. 341, 370-72. Plaintiff had four children, but ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 2 1 2 the State removed all of them from her care. Tr. 391. At the administrative hearing, Plaintiff described being unable to work 3 because of depression and anxiety. Tr. 47. She also testified that physical pain in 4 her neck, knees, and back made working difficult. Tr. 58. She testified that, 5 between 2008 and 2012, she would typically sit and stare at the walls, watch 6 television, and sleep. Tr. 47. Plaintiff testified that she was afraid of people and 7 “wouldn’t leave the house,” except for medical appointments. Tr. 48. Plaintiff 8 reported attending group therapy and using medication to control her anxiety and 9 depression. Tr. 48. 10 11 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 12 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 13 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 14 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 15 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 16 not supported by substantial evidence or if it is based on legal error. Tackett v. 17 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 18 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 19 another way, substantial evidence is such relevant evidence as a reasonable mind 20 might accept as adequate to support a conclusion. Richardson v. Perales, 402 21 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 22 interpretation, the court may not substitute its judgment for that of the ALJ. 23 Tackett, 180 F.3d at 1097; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 24 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial evidence 25 will still be set aside if the proper legal standards were not applied in weighing the 26 evidence and making the decision. Brawner v. Secretary of Health and Human 27 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence supports the 28 administrative findings, or if conflicting evidence exists that will support a finding ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 3 1 of either disability or non-disability, the ALJ’s determination is conclusive. 2 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 3 SEQUENTIAL EVALUATION PROCESS 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 6 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 7 proof rests upon claimants to establish a prima facie case of entitlement to 8 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once 9 claimants establish that physical or mental impairments prevent them from 10 engaging in their previous occupations. 20 C.F.R. § 416.920(a)(4). If claimants 11 cannot do their past relevant work, the ALJ proceeds to step five, and the burden 12 shifts to the Commissioner to show that (1) the claimants can make an adjustment 13 to other work and (2) specific jobs exist in the national economy which claimants 14 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 15 (2004). If claimants cannot make an adjustment to other work in the national 16 economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(i-v). 17 ADMINISTRATIVE DECISION 18 On March 22, 2013, the ALJ issued a decision finding Plaintiff was not 19 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff 20 had not engaged in substantial gainful activity for a continuous twelve-month 21 period. Tr. 16. At step two, the ALJ determined Plaintiff had the following severe 22 impairments: degenerative disc disease, degenerative joint disease, affective 23 disorder, anxiety disorder, personality disorder, and eating disorder. Tr. 16-18. At 24 step three, the ALJ found Plaintiff did not have an impairment or combination of 25 impairments that met or medically equaled the severity of one of the listed 26 impairments. Tr. 18-20. 27 The ALJ assessed Plaintiff’s residual function capacity (RFC) and 28 determined she had the ability to perform light work subject to some exceptions. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 4 1 Despite her impairments, the ALJ found Plaintiff had the ability to: lift and/or 2 carry twenty pounds occasionally and ten pounds frequently; stand and/or walk, 3 and sit, for about six hours in an eight hour workday; frequently climb ramps and 4 stairs, and occasionally climb ladders, ropes or scaffolds; and, frequently stoop, 5 kneel, crouch, crawl. Tr. 20. The ALJ also found Plaintiff could complete simple 6 to moderately complex tasks, involving only simple, work-related decisions, and 7 could occasionally interact with the public, but must avoid concentrated exposure 8 to workplace hazards. Tr. 20. 9 The ALJ concluded at step four that Plaintiff was not able to perform her 10 past relevant work. Tr. 27. At step five, however, the ALJ determined that, 11 considering Plaintiff’s age, education, work experience and RFC, and based on the 12 testimony of the VE, there were other jobs that exist in significant numbers in the 13 national economy Plaintiff could perform, including the jobs of production 14 assembler, housekeeper, and hand packager. Tr. 27-28. The ALJ thus concluded 15 Plaintiff was not under a disability within the meaning of the Social Security Act at 16 any time between July 26, 2008, and August 3, 2012. Tr. 28. 17 ISSUES 18 The question presented is whether substantial evidence supports the ALJ’s 19 decision denying benefits and, if so, whether that decision is based on proper legal 20 standards. Plaintiff contends the ALJ erred by failing to (1) properly credit 21 Plaintiff’s testimony about the severity of her symptoms; (2) accord weight to 22 “each and every” opinion of Plaintiff’s treating and examining sources, including 23 their scoring of Plaintiff’s Global Assessment of Functioning (GAF), ECF No. 18 24 at 11; (3) credit the lay witness testimony of Norman Landry; and, (4) account for 25 all of Plaintiff’s limitations in the ALJ’s RFC determination. 26 27 28 DISCUSSION A. Plaintiff’s Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 5 1 ECF No. 18 at 20. 2 It is generally the province of the ALJ to make credibility determinations, 3 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 4 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 5 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 6 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 7 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 8 “General findings are insufficient: rather the ALJ must identify what testimony is 9 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 10 11 F.3d at 834. In this case, the ALJ found Plaintiff’s medically determinable impairments 12 could reasonably be expected to cause some of the alleged symptoms; however, 13 Plaintiff’s statements concerning the intensity, persistence, and limiting effects of 14 these symptoms were not credible to the extent they were inconsistent with the 15 ALJ’s RFC determination. Tr. 21. The ALJ reasoned that Plaintiff was less than 16 credible because (1) she worked immediately before and after her alleged period of 17 disability; (2) her ability to perform activities of daily living, including her ability 18 to engage socially, contradicted her reported limitations; (3) she received minimal 19 and conservative treatment for her physical impairments; (4) treatment notes 20 indicate “normal psychiatric observations”; and, (5) her testimony was 21 contradictory. Tr. 21-23. The ALJ did not find Plaintiff was malingering. 22 1. Evidence of Employment Before and After Closed Period 23 The ALJ’s first reason for discounting Plaintiff’s credibility, i.e., that she 24 worked immediately before and after her alleged period of disability, is based on 25 legal error. An ALJ should not use a claimant’s activities outside the closed period 26 to discount Plaintiff’s credibility. Angulo v. Colvin, 577 Fed. Appx. 686, 687 (9th 27 Cir. 2014); see also Moore v. Commissioner of the Social Security Administration, 28 278 F.3d 920, 924 (9th Cir. 2002) (noting “the Social Security Act and regulations ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 6 1 are designed to encourage individuals who have previously suffered from a 2 disability to return to substantial gainful employment.”) (internal quotation marks 3 omitted). Thus, the ALJ made a legal error in using Plaintiff’s employment outside 4 the closed period to discount her credibility. 5 2. Activities of Daily Living (ADL) 6 The ALJ’s second reason for discounting Plaintiff’s credibility, i.e., that her 7 symptom testimony was inconsistent with her ADL, is also not a specific, clear, 8 and convincing reason. 9 The ALJ pointed out that Plaintiff herself stated that she could perform 10 household chores. But Plaintiff does not contest that her physical impairments are 11 not disabling. Furthermore, her ability to perform household chores is within the 12 range of physical activity assessed by multiple physicians. The ALJ also cites to 13 the fact that Plaintiff is capable of working as a cook and actually enjoys her job. 14 As discussed supra, this does not necessarily mean that Plaintiff was capable of 15 working during the relevant period of this case. 16 The ALJ’s conclusion that Plaintiff’s attendance of a Cinco de Mayo parade 17 was indicative of Plaintiff being capable of engaging in social activity is not 18 supported by substantial evidence. Other than the one parade, there is practically 19 no mention of Plaintiff engaging in activities outside her home in the lengthy 20 administrative record other than medical appointments, therapy, and occasional 21 grocery shopping. See Tackett, 180 F.3d at 1098 (evidence must be more than a 22 “mere scintilla” to meet substantial evidence standard). 23 The ALJ also found that Plaintiff’s multiple romantic relationships 24 evidenced “social capability, flexibility, and adaptability.” Tr. 22. This statement 25 is also not supported by substantial evidence in the record. Treatment notes 26 indicate that Plaintiff’s relationships were often tumultuous and that she alternated 27 between seeking social connection and periods of self-isolation. See, e.g., Tr. 399. 28 Multiple treatment providers noted that Plaintiff was estranged from her family and ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 7 1 had no social support network. See, e.g., Tr. 401. Given Plaintiff’s history and 2 need to connect with people, having two relationships with two different men over 3 a period of several years does not evidence “social capability, flexibility, and 4 adaptability.” Tr. 22. 5 Finally, the ALJ noted that while Plaintiff was living in her sister’s home she 6 was able to care for her nephew for some time between May and August 2012. 7 Being able to care for a child inside one’s home does not necessarily evidence that 8 a claimant is capable of working. The ALJ’s conclusion that caring for a child 9 required Plaintiff to “handle at least routine stressors and responsibilities, and 10 make simple judgments and decisions,” Tr. 22, does not establish that Plaintiff 11 “spent[t] a substantial part of [her] day engaged in pursuits involving performance 12 of physical functions that are transferable to a work setting,” which is required for 13 ADL to be grounds for an adverse credibility finding, Orn v. Astrue, 495 F.3d 625, 14 639 (9th Cir. 2007) (internal quotation marks omitted). 15 In summary, the ALJ’s conclusion that Plaintiff’s ADL are inconsistent with 16 her symptom testimony is not supported by substantial evidence and is based, in 17 part, on legal error. As such, this is not a specific, clear, and convincing reason for 18 discounting Plaintiff’s credibility. 19 3. Minimal and Conservative Treatment for Pain 20 The ALJ’s third reason for discounting Plaintiff’s credibility, i.e., she 21 received minimal and conservative treatment for her neck and back pain, is not a 22 specific, clear, and convincing reason for rejecting her symptom testimony relating 23 to her mental impairments. As discussed supra, Plaintiff does not contest the 24 ALJ’s determination that she is physically capable of a range of tasks. Rather, 25 Plaintiff disagrees with the ALJ’s determination that her mental impairments do 26 not prevent her from working. Regarding her mental impairments, the record 27 reflects that Plaintiff largely complied with recommended courses of treatment 28 including participating in group and individual therapy and taking prescription ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 8 1 medication to help her anxiety and depression. The fact that Plaintiff did not seek 2 treatment for her physical pain is largely immaterial to her credibility regarding her 3 mental impairments. 4 4. Treatment Notes Indicating Normal Presentation 5 The ALJ’s fourth reason for discounting Plaintiff’s credibility, i.e., that 6 treatment notes often document “normal psychiatric observations,” is similarly 7 unpersuasive. The ALJ correctly observes that numerous treatment notes state that 8 Plaintiff appeared to have normal attention span, concentration, mood, and affect, 9 and was alert and cooperative. Tr. 23. The ALJ then finds these observations 10 inconsistent with Plaintiff’s testimony that she mostly stays home and avoids other 11 people. Tr. 23. The treatment note observations, however, have little, if anything, 12 to do with Plaintiff’s ability to function socially. The fact that she can present 13 herself to a treatment provider to receive medical care in a one-on-one clinical 14 setting is not inconsistent with her testimony that she generally stays home and 15 avoids other people. This is not a specific, clear, and convincing reason to 16 discount Plaintiff’s credibility. 17 The ALJ further cites to one instance where some of Plaintiff’s test results 18 were invalid because she did not put forth maximum effort. Tr. 23, 363. The ALJ 19 concludes that these invalid tests indicate Plaintiff “is capable of significantly more 20 social contact than she described at the hearing, and that she may have a tendency 21 to provide exaggerated responses during mental testing.” Tr. 23. The invalid test 22 results, however, appear to relate to tests for “General Memory” and “Auditory 23 Recog[nition].” Tr. 364. It is unclear how these invalid tests would measure 24 Plaintiff’s social ability. Furthermore, the ALJ’s inference from these invalid test 25 results, i.e., that Plaintiff generally has “a tendency to provide exaggerated 26 response,” is not a specific reason to find Plaintiff incredible. See Lester, 81 F.3d 27 at 834 (general findings are insufficient). 28 The ALJ erred in discounting Plaintiff’s credibility regarding her social ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 9 1 abilities based on treatment note observations and invalid test scores that had 2 nothing to do with social functioning. 3 5. Contradictory Testimony 4 The ALJ’s final reason for discounting Plaintiff’s testimony, i.e., Plaintiff’s 5 contrary reasons for why she stopped working in 2007, was not in error. In 6 determining a claimant’s credibility, the ALJ may consider “ordinary techniques of 7 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 8 statements . . . and other testimony by the claimant that appears less than candid.” 9 Smolen, 80 F.3d at 1284. As pointed out by the ALJ, Plaintiff was inconsistent 10 about why she stopped working. Compare Tr. 47 (Plaintiff stating she was unable 11 to work because of depression and anxiety) with Tr. 54 (Plaintiff stating she lost 12 her job because she had beer in her truck’s refrigerator) and Tr. 312 (Plaintiff 13 stating she stopped driving due to herniated disc in neck). Why Plaintiff stopped 14 working is significant to the disability determination and could be grounds to 15 question her credibility. But given that the ALJ’s credibility determination is 16 flawed on several other grounds, this single inconsistency is not enough to discount 17 Plaintiff’s symptom reporting in its entirety. In sum, the ALJ’s adverse credibility finding is based, in part, on legal errors 18 19 and is not entirely supported by substantial evidence. On remand, the ALJ should 20 reevaluate Plaintiff’s credibility consistent with the Court’s analysis supra. 21 B. 22 ALJ’s Evaluation of Medical and “Other” Sources Plaintiff argues the ALJ failed to properly weigh the medical opinions of 23 “each and every one” of Plaintiff’s treating and examining sources. ECF No. 18 at 24 12. More precisely, Plaintiff seems to challenge the ALJ’s evaluation of the 25 sources that treated her for her mental impairments. 26 “In making a determination of disability, the ALJ must develop the record 27 and interpret the medical evidence.” Howard ex. rel. Wolff v. Barhart, 341 F.3d 28 1006, 1012 (9th Cir. 2003). In weighing medical source opinions, the ALJ should ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 10 1 distinguish between three different types of physicians: (1) treating physicians, 2 who actually treat the claimant; (2) examining physicians, who examine but do not 3 treat the claimant; and, (3) nonexamining physicians who neither treat nor examine 4 the claimant. Lester, 81 F.3d at 830. The ALJ should give more weight to the 5 opinion of a treating physician than to the opinion of an examining physician. 6 Orn, 495 F.3d at 631. The ALJ should give more weight to the opinion of an 7 examining physician than to the opinion of a nonexamining physician. Id. 8 When a physician’s opinion is not contradicted by another physician, the 9 ALJ may reject the opinion only for “clear and convincing” reasons. Baxter v. 10 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a physician’s opinion is 11 contradicted by another physician, the ALJ is only required to provide “specific 12 and legitimate reasons” for rejecting the opinion of the first physician. Murray v. 13 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Historically, the courts have 14 recognized conflicting medical evidence, the absence of regular medical treatment 15 during the alleged period of disability, and the lack of medical support for doctors’ 16 reports based substantially on a claimant’s subjective complaints of pain as 17 specific, legitimate reasons for disregarding a treating or examining physician’s 18 opinion. See, e.g., Flaten v. Secretary of Health and Human Servs., 44 F.3d 1453, 19 1463-1464 (9th Cir. 1995); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 20 Plaintiff argues that the ALJ failed to properly credit the medical opinions of 21 Jan Kouzes, Ed.D.; Slyvia Thorpe, Ph.D.; and each of the three State agency 22 consultants: Leslie Postovoit, Ph.D.; Eugene Kester, M.D.; and, Matthew Comrie, 23 Psy.D. Plaintiff also argues that the ALJ did not properly credit the opinions of 24 “other” sources, including the opinions of Plaintiff’s therapists. 25 1. Jan Kouzes, Ed.D. 26 Plaintiff presented to Dr. Kouzes for a consultative psychological evaluation 27 on June 2, 2011. Tr. 457-62. Dr. Kouzes diagnosed Plaintiff with major 28 depressive disorder, recurrent, severe, without psychotic symptoms; posttraumatic ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 11 1 stress disorder (PTSD); and, borderline personality disorder. Tr. 459. Dr. Kouzes 2 assessed several moderate limitations on Plaintiff’s ability to perform basic work 3 related tasks. Tr. 459-60. Dr. Kouzes found Plaintiff markedly1 limited in her 4 ability to (1) be aware of normal hazards and take appropriate precautions; (2) 5 communicate and perform effectively in a work setting with public contact; and, 6 (3) maintain appropriate behavior in a work setting. Tr. 460. In her medical 7 source statement, Dr. Kouzes concluded, “[Plaintiff] was alert and oriented. She 8 evidenced problems with memory and concentration. Her response time was 9 slowed and she requested that questions be repeated, restated. She appeared 10 confused. She is likely to need significant services, food, housing DVR to make an 11 effective return to work.” Tr. 460. 12 The ALJ gave little weight to Dr. Kouzes’ opinion because (1) Dr. Kouzes 13 “did not review any treatment notes other than one emergency room visit”; (2) Dr. 14 Kouzes’ opinions were based on Plaintiff’s unreliable self-reporting; and, (3) Dr. 15 Kouzes did not complete a mental status examination, suggesting that Dr. Kouzes 16 did not carefully review and complete the State agency form. Tr. 25-26. 17 18 19 The ALJ did not give specific and legitimate reasons for rejecting Dr. Kouzes’ opinions. First, the ALJ’s conclusion that Dr. Kouzes reviewed only one record was 20 clearly erroneous as Dr. Kouzes lists four medical records that she reviewed, 21 including two State agency psychological evaluations, on the front page of her 22 evaluation. Tr. 457. Defendant appears to concede that “the ALJ may have been 23 mistaken in this respect.” ECF No. 20 at 12. 24 Second, as discussed supra, the ALJ did not give specific, clear, and 25 convincing reasons for discounting Plaintiff’s credibility, especially in regards to 26 27 28 1 A “marked” limitation would have a “very significant interference” in the individual’s ability to perform certain tasks. Tr. 459. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 12 1 her reporting of her social functioning. Thus, the ALJ’s second reason for 2 rejecting Dr. Kouzes’ opinions also fails. 3 Thirdly, the ALJ’s suggestion that Dr. Kouzes neither completed a mental 4 status examination nor carefully completed the form is unfounded. As documented 5 in her evaluation, Dr. Kouzes did administer a mental status exam, Tr. 461-62, as 6 well as reviewed Plaintiff’s psychiatric records and personally observed Plaintiff, 7 Tr. 457-62. In her medical source statement, Dr. Kouzes quoted Plaintiff, but also 8 reached her own conclusions based on her professional judgment. See Tr. 460. 9 Nothing would suggest that Dr. Kouzes was not careful and complete in 10 completing her evaluation or that she acted in anyway contrary to a “highly 11 qualified” medical specialist and an “expert[] in Social Security disability 12 evaluation.” 20 C.F.R. § 416.927(e)(2)(i). 13 14 The ALJ did not give specific and legitimate reasons for discounting Dr. Kouzes’ opinions. 15 2. Sylvia Thorpe, Ph.D. 16 Plaintiff presented to Dr. Thorpe for a psychological evaluation on March 17 10, 2009. Tr. 363-72. Dr. Thorpe diagnosed Plaintiff with major depressive 18 disorder; pain disorder associated with both psychological factors and a general 19 medical condition; alcohol abuse disorder; and, polysubstance dependence 20 disorder, in full sustained remission. Tr. 367. Dr. Thorpe opined that Plaintiff’s 21 mental impairments would have a moderate impact on her ability to work. Tr. 22 367-68. Dr. Thorpe recommended treatment with medication and regular 23 substance abuse therapy. Tr. 369. Dr. Thorpe estimated that Plaintiff’s limitations 24 would last three to six months. Tr. 369. 25 The ALJ gave “some weight” to Dr. Thorpe’s evaluation. Tr. 25. The ALJ 26 reasoned that Dr. Thorpe found Plaintiff had only moderate limitations and few of 27 these limitations would impact her work-related abilities. Tr. 25. The ALJ also 28 cited Dr. Thorpe’s conclusion that some of Plaintiff’s test results were invalid ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 13 1 because Plaintiff “gave up easily” on the tests. Tr. 25; 363. The ALJ further noted 2 that Dr. Thorpe opined that Plaintiff’s limitations were temporary. Tr. 25, 369. 3 The ALJ gave specific and legitimate reasons for giving limited weight to 4 Dr. Thorpe’s evaluation. The mere diagnosis of an impairment is insufficient to 5 sustain a finding of disability; the impairment must actually limit a claimant’s 6 ability to work. See Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). The 7 ALJ correctly noted that although Dr. Thorpe found Plaintiff to have numerous 8 impairments, Dr. Thorpe ultimately concluded the impairments would not preclude 9 Plaintiff from working. Tr. 25, 369. Furthermore, the ALJ did not err in 10 considering Dr. Thorpe’s opinion that Plaintiff failed to put forth maximum effort 11 in clinical testing (although as discussed supra, the invalid tests do not seem to 12 measure Plaintiff’s social functioning and the ALJ erred in using the invalid results 13 to question Plaintiff’s general credibility). See Thomas v. Barnhart, 278 F.3d 947, 14 959 (9th Cir. 2002) (ALJ may consider a claimant’s failure “to give maximum or 15 consistent effort during . . . evaluations). Finally, Dr. Thorpe’s opinion that 16 Plaintiff’s impairments would last for only three to six months, Tr. 369, is another 17 legitimate reason for giving the opinion little weight. See 42 U.S.C. § 18 1382c(a)(3)(A) (disability must be premised on medically determinable physical or 19 mental impairments that have “lasted or can be expected to last for a continuous 20 period of not less than twelve months”). The ALJ did not err in evaluating Dr. 21 Thorpe’s opinions. 22 3. 23 Three state agency psychiatric consultants—Drs. Postovoit, Kester, and 24 Comrie—reviewed Plaintiff’s medical records. See Tr. 83-85 (Dr. Postovoit’s 25 review dated July 26, 2011), 97-99 (Dr. Kester’s review dated September 24, 26 2011), 411-27 (Dr. Comrie’s review dated June 8, 2009). 27 28 State Agency Reviewing Psychologists and Psychiatrists Dr. Comrie found Plaintiff was mildly limited in activities of daily living, markedly limited in maintaining social functioning, and moderately limited in ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 14 1 maintaining concentration, persistence, or pace. Tr. 421. Dr. Comrie indicated 2 that Plaintiff could perform simple routine tasks and would be able to work with 3 coworkers and supervisors, but that she should have “limited” contact with the 4 public. Tr. 427. The ALJ gave great weight to Dr. Comrie’s opinion that Plaintiff 5 could perform simple routine tasks, but gave no weight to his opinion that Plaintiff 6 was markedly limited in maintaining social functioning as he did not describe the 7 extent of the limitation. Tr. 25. 8 Drs. Postovoit and Kester both opined that Plaintiff’s mental impairments 9 would moderately impact her ability to carry out work related activities and that 10 Plaintiff would have difficulties around crowds. Tr. 83-85, 98-99. Both doctors 11 concluded that Plaintiff was not disabled. Tr. 87, 101. The ALJ gave some weight 12 to these opinions, reasoning that they were largely consistent with the ALJ’s RFC 13 determination. Tr. 25. The ALJ gave little weight to Drs. Postovoit and Kester’s 14 opinions that Plaintiff would be distracted, have reduced mental energy, and have 15 difficulties around crowds. Tr. 25. The ALJ reasoned that these opinions were 16 internally inconsistent and did not set forth the extent of the limitations. Tr. 25. 17 The ALJ erred to the extent that she gave the opinions of Drs. Postovoit, 18 Kester, and Comrie greater weight than the opinions of Plaintiff’s treating and 19 examining physicians, particularly the opinions of Dr. Kouzes. See Lester, 81 F.3d 20 at 830 (“The opinion of a nonexamining physician cannot by itself constitute 21 substantial evidence that justifies the rejection of the opinion of either an 22 examining physician or a treating physician.”) (citations omitted). Notably, each 23 reviewing doctor stated that Plaintiff would have difficulties with social 24 functioning; significantly, Dr. Comrie opined that Plaintiff was markedly limited in 25 her ability to maintain social functioning. Tr. Tr. 83-85, 98-99, 421. These social 26 limitations are seemingly consistent with Plaintiff’s self-reporting and the opinion 27 of Dr. Kouzes. On remand, the ALJ may need to reevaluate the opinions of Drs. 28 Postovoit, Kester, and Comrie after reevaluating Plaintiff’s credibility and Dr. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 15 1 Kouzes’ opinions consistent with the Court’s analysis supra. “Other” medical sources 2 4. 3 Plaintiff argues that the ALJ erred in considering the opinions of “other” 4 medical sources, including Chris Clark, M.Ed.; Deborah Blaine, M.S.; Ginny 5 Baum, L.M.H.C.; Megan Crouse, L.I.C.S.W.; and, Jenny Walter P.A.C. 6 Generally, the ALJ should give more weight to the opinion of an acceptable 7 medial source than to the opinion of an “other source,” such as a therapist, 8 physician’s assistant, or social worker. 20 C.F.R. § 416.913(d). An ALJ is 9 required, however, to consider evidence from “other sources,” 20 C.F.R. § 10 416.913(d); S.S.R. 06-03p, “as to how an impairment affects a claimant’s ability to 11 work,” Sprague, 812 F.2d at 1232. An ALJ must give “germane” reasons to 12 discount evidence from “other sources.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th 13 Cir. 1993). Germane reasons to discount an opinion include contradictory opinions 14 and lack of support in the record. Thomas, 278 F.3d at 957. Even though medical 15 source evidence is the only way to establish an impairment, an ALJ cannot ignore 16 information from non-acceptable medical sources regarding a claimant’s physical 17 and mental capabilities. Sprague, 812 F.2d at 1232. 18 a. Mr. Clark and Ms. Blaine 19 Mr. Clark and Ms. Blaine completed an initial assessment upon Plaintiff’s 20 commencement of treatment at Central Washington Comprehensive Mental Health 21 (CWCMH) in April 2012. Tr. 726-30. The ALJ gave little weight to the opinions 22 contained in this assessment. Tr. 26. The ALJ reasoned that the opinions were 23 vague, unexplained, did not contain an assessment of Plaintiff’s functional 24 limitations, relied on Plaintiff’s unreliable self-reporting, and was inconsistent with 25 the record as a whole, particularly Plaintiff’s return to work four months later. Tr. 26 26. 27 28 The ALJ did not err in assigning little weight to Mr. Clark and Ms. Blaine’s assessment. Although the Court concluded supra that the ALJ’s characterization ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 16 1 of Plaintiff’s symptom reporting as “unreliable” is unfounded, the additional 2 reasons provided by the ALJ are germane. Given the fact that the assessment was 3 based on an intake or “screening” interview, Tr. 726, it is unsurprising that the 4 opinions are “vague” and “unexplained,” Tr. 26. And the ALJ correctly noted that 5 the assessment made no attempt to assess Plaintiff’s functional limitations. See 6 Key, 754 F.2d at 1549 (mere diagnosis of an impairment is insufficient to sustain a 7 finding of disability). The ALJ did not err in evaluating Mr. Clark and Ms. 8 Blaine’s April 2012 assessment. 9 b. Ms. Baum 10 Ms. Baum, a counselor at Interfaith Community Health Center in 11 Bellingham, Washington, completed a report after an initial psychiatric 12 consultation on April 22, 2009. Tr. 397-402. Ms. Baum reviewed Plaintiff’s 13 history and diagnosed her with borderline personality disorder, history of 14 amphetamine abuse, PTSD, and major depressive disorder. Tr. 401. Ms. Baum 15 noted that Plaintiff had “not been able to sustain many jobs for long due to 16 emotional instability and physical illness.” Tr. 399. Ms. Baum recommended 17 Plaintiff continue to participate in therapy. Tr. 401-02. The ALJ gave little weight 18 to Ms. Baum’s evaluation reasoning that it was vague and because the ALJ could 19 not “determine what specific limitations [Ms. Baum] believed [Plaintiff] had.” Tr. 20 26. 21 The ALJ did not err in assigning little weight to Ms. Baum’s opinions. 22 Similar to the intake assessment completed by Mr. Clark and Ms. Blaine, discussed 23 supra, Ms. Baum’s report after her initial consultation with Plaintiff does little 24 more than detail Plaintiff’s history and complaints. Ms. Baum does not make her 25 own clinical findings or attempt to assess Plaintiff’s functional limitations. 26 Therefore, the ALJ did not err in giving little weight to Ms. Baum’s opinions. 27 28 c. Ms. Walter Ms. Walter, a physician’s assistant who is often named as Plaintiff’s primary ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 17 1 care provider, completed a physical evaluation of Plaintiff for purposes of 2 Plaintiff’s application for State benefits on March 27, 2009. Tr. 343-52. Ms. 3 Walter opined that Plaintiff’s mental and physical impairments caused severe 4 limitations that would preclude Plaintiff from working. Tr. 345. The ALJ rejected 5 this opinion because it was based on Plaintiff’s unreliable self-reporting. Tr. 24. 6 As discussed supra, the ALJ’s characterization of Plaintiff’s symptom 7 reporting as “unreliable” is unfounded. While this would typically be sufficient 8 grounds to remand for further consideration, any error the ALJ made in evaluating 9 Ms. Walter’s opinion is harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 10 (9th Cir. 2008) (an error is harmless when "it is clear from the record that the . . . 11 error was inconsequential to the ultimate nondisability determination."). Ms. 12 Walter’s opinions are contained in a physical evaluation completed for purposes of 13 Plaintiff’s application for State benefits. It is unclear why Ms. Walter offered 14 opinions regarding Plaintiff’s mental impairments in a physical evaluation. 15 Furthermore, Plaintiff is not contesting that the ALJ erred in evaluating her 16 physical impairments so any error in weighing Ms. Walter’s physical evaluation is 17 inconsequential to the ultimate nondisability determination. 18 d. Ms. Crouse 19 Ms. Crouse, a social worker at Interfaith Community Health Center 20 performed an intake evaluation on May 2, 2009. Tr. 391-96. Ms. Crouse stated 21 that Plaintiff’s “functional status” was moderately impaired due to Plaintiff’s 22 “chronic and/or variably severe deficits in interpersonal relationships, ability to 23 engage in socially constructive activities, and ability to maintain responsibilities.” 24 Tr. 395. The ALJ did not discuss this opinion, but the ALJ did not err in failing to 25 do so. Numerous medical sources opined that Plaintiff was moderately limited in 26 social functioning. See, e.g., Tr. 367-68 (Dr. Thorpe); Tr. 83-85 (Dr. Postovoit); 27 Tr. 98-99 (Dr. Kester). The ALJ considered these opinions and generally gave 28 some weight to the assessment that Plaintiff was moderately limited in social ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 18 1 functioning, as reflected in the ALJ’s RFC determination. See Tr. 20 (noting 2 Plaintiff could “occasionally interact with the public”). Given these opinions, Ms. 3 Crouse’s assessment is largely cumulative. Thus, Ms. Crouse’s assessments are 4 “neither significant nor probative,” and the ALJ did not err in failing to address 5 them. See Howard, 341 F.3d at 386 (ALJ is not required to discuss evidence that 6 "is neither significant nor probative.") 7 C. 8 9 GAF Scores Plaintiff argues that the ALJ erred by rejecting the GAF scores assessed by Plaintiff’s medical providers. ECF No. 18 at 19. 10 The GAF scale “is the scale used in the multiaxial evaluation system 11 endorsed by the American Psychiatric Association.” 65 Fed. Reg. 50,746, 50,765 12 (Aug. 21, 2000). Generally, GAF Scores do not have a direct correlation to the 13 severity requirements in [the Social Security Administration’s] mental disorders 14 listings.” Id.; see also McFarland v. Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 15 2008). Standing alone, “a low GAF score does not necessarily evidence an 16 impairment seriously interfering with a claimant’s ability to work.” Lee v. 17 Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. 2004). But GAF scores can 18 sometimes be of “considerable help” when read in context with the medical 19 evidence as a whole. Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th 20 Cir.2002). 21 22 In this case, the ALJ noted that Plaintiff’s GAF scores, which ranged from 36 to 55, were “quite low.”2 Tr. 26. But the ALJ gave little weight to these scores 23 24 2 As pointed out by Defendant, “A GAF of 31-40 indicates ‘[s]ome 25 impairment in reality testing or communication (e.g., speech is at time illogical, 26 obscure, or irrelevant) or major impairment in several areas such as work or 27 school, family relations, judgment, thinking, or mood (e.g., a depressed man avoids 28 friends, neglects family, and is unable to work . . .).’” ECF No. 20 at 17 (quoting ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 19 1 because they were based on Plaintiff’s unreliable self-reporting. Tr. 26. The ALJ 2 also stated that she did not “place a high degree of reliance on these scores or any 3 opinions associated with the scores” because “GAF scores are highly subjective.” 4 Tr. 26. The ALJ erred in rejecting Plaintiff’s GAF scores. As discussed supra, the 5 6 ALJ’s characterization of Plaintiff’s symptom reporting as less than credible is 7 unfounded and not a reason to reject the GAF scores assessed by Plaintiff’s 8 treatment providers. Furthermore, the ALJ’s general skepticism of GAF scores is 9 not grounds for rejecting them. On remand, the ALJ should consider the GAF 10 scores in context with the medical observations and opinions that accompany them. 11 D. 12 13 14 Lay Witness Testimony Plaintiff argues that the ALJ failed to properly consider the statements of Norman Landry, Plaintiff’s ex-boyfriend. ECF No. 18 at 25-27. Lay witness testimony cannot establish the existence of medically 15 determinable impairments. Cf. 20 C.F.R. § 416.913(d)(a). But lay witness 16 testimony is “competent evidence” as to “how an impairment affects [a claimant’s] 17 ability to work.” Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 18 2006); 20 C.F.R. § 416.913(d)(4); see also Dodrill, 12 F.3d at 918-19 (“[F]riends 19 and family members in a position to observe a claimant’s symptoms and daily 20 activities are competent to testify as to her condition.”). Simply stating that the 21 lay witness testimony does not objectively establish a medically determinable 22 impairment is not a germane reason for rejecting lay witness testimony that 23 concerns a claimant’s ability to work. See Bruce v. Astrue, 557 F.3d 1113, 1115 24 (9th Cir. 2009) (stating that the ALJ “should not have discredited [a lay witness’s] 25 testimony on the basis of its relevance or irrelevance to medical conclusions.”). 26 27 American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 28 34 (4th ed. Text Revision 2000) (DSM-IV-TR)). ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 20 1 Mr. Landry and Plaintiff were in a relationship from July 2008 to May 2011. 2 Tr. 313. Mr. Landry stated that he and Plaintiff would go on walks and watch 3 television. Tr. 255. Mr. Landry stated that Plaintiff had anxiety and would spend 4 most of her time in her room. Tr. 255. Mr. Landry noted that Plaintiff “hardly 5 sleeps, constantly worries about everything, and [is] always on edge” and is 6 forgetful. Tr. 256-57, 315. Mr. Landry stated that Plaintiff can make sandwiches, 7 use public transportation, shop for food and personal items, perform household 8 chores, and take care of herself. Tr. 257-58, 314. Mr. Landry stated that Plaintiff 9 is unable to clean the house or handle money. Tr. 257-58; but see Tr. 315-16 (Mr. 10 Landry reported Plaintiff able to clean and do laundry and handle money). Mr. 11 Landry describes Plaintiff as a “loner” who has “a lot of difficulties getting along 12 with others.” Tr. 259-60, 317-18. 13 The ALJ gave little weight to Mr. Landry’s statements because of internal 14 inconsistencies and inconsistencies between Mr. Landry’s two statements, the 15 medical evidence, and Plaintiff’s reported activities. Tr. 23. The ALJ erred in giving little weight to Mr. Landry’s statements. Although 16 17 Mr. Landry’s statements were not perfectly consistent, in most instances, they 18 aligned with Plaintiff’s own reports. Plaintiff does not contest that she is 19 physically capable of performing certain ADL. Mr. Landry’s description of 20 Plaintiff’s isolating behavior and lack of social functioning skills is likewise 21 similar to Plaintiff’s own reporting and the assessments of Plaintiff’s examining 22 and reviewing medical sources. The fact that Mr. Landry’s statements are contrary 23 to some of the medical evidence is not a germane reason for rejecting his testimony 24 concerning Plaintiff’s ability to work. Bruce, 557 F.3d at 1115. On remand, the 25 ALJ should reconsider Mr. Landry’s statements consistent with the Court’s rulings 26 supra. 27 E. 28 RFC and Hypothetical Questions Plaintiff argues that the ALJ failed to include all of Plaintiff’s limitations in ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 21 1 the ALJ’s formulation of Plaintiff’s RFC. Plaintiff argues that the ALJ concluded 2 that Plaintiff could not work a full workday because the ALJ determined that 3 Plaintiff was only able to “stand and/or walk, and sit, for about six hours in an 4 eight-hour day,” Tr. 20. ECF No. 18 at 27. 5 Given that the Court is remanding the case for the ALJ to reconsider the 6 evidence in light of the errors discussed supra, the Court need not reach the issue 7 of whether the ALJ erred in her RFC determination and hypothetical questions to 8 the VE. If, on remand, the ALJ concludes that Plaintiff has different functional 9 limitations, then the ALJ should modify her RFC determination accordingly. 10 On a final note, the Court disagrees with Plaintiff’s argument that the ALJ’s 11 RFC determination means that Plaintiff is only capable of standing/walking/and 12 sitting for a combined total of six hours a day. The ALJ’s phrasing is perhaps 13 somewhat ambiguous. But as pointed out by Defendant, the ALJ apparently 14 intended to adopt the physical RFC assessment agreed upon by multiple reviewing 15 medical sources. ECF No. 20 at 20. Dr. Robert Bernardez-Fu opined that Plaintiff 16 could stand and/or walk (with normal breaks) for a total of about six hours in an 17 eight-hour workday, and sit (with normal breaks) for a total of about six hours in 18 an eight-hour workday. Tr. 95. Mary Knox, SDM and Juanita Casebolt-Baez 19 assessed identical stand/walk/sit limitations. Tr. 82, 404. Furthermore, in 20 discussing the opinion of David Martinez, DO, the ALJ opined that Plaintiff could 21 “stand and/or walk, and sit, for about four hours in an eight-hour day.” Tr. 24. 22 The ALJ then essentially parsed this limitation to mean “[Plaintiff] can sit for four 23 hours, and stand for four hours.” Tr. 24. Given the identical opinions of three 24 consulting medical experts, as well as the ALJ’s apparent understanding of her 25 phrasing evidenced elsewhere in her opinion, the Court concludes that the ALJ’s 26 RFC meant that Plaintiff could stand, walk, and sit for six hours each, or for at 27 least eight hours in some combination. Even though the Court finds no error in 28 this regard, the ALJ might consider rephrasing her walk/stand/sit limitations in any ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 22 1 subsequent decision to avoid ambiguity. 2 3 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for an 4 immediate award benefits. The Court has the discretion to remand the case for 5 additional evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. 6 The Court may award benefits if the record is fully developed and further 7 administrative proceedings would serve no useful purpose. Id. Remand is 8 appropriate when additional administrative proceedings could remedy defects. 9 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 10 11 finds that further development is necessary for a proper determination to be made. On remand, the ALJ shall reexamine Plaintiff’s statements and testimony 12 and reassess Plaintiff’s RFC, taking into consideration the opinions of Dr. Kouzes’ 13 and the State agency reviewing physicians, the statements of Mr. Landry, and all 14 other medical evidence of record relevant to Plaintiff’s claim for disability 15 benefits. 16 In Plaintiff’s reply brief, she requests that she “be allowed to amend her 17 closed period of disability to a continuing period of disability if her attempt to 18 work ended due to her impairments prior to the end of her trial work period, or her 19 work attempt ended up being an unsuccessful attempt.” ECF No. 22 at 20. The 20 Court makes no ruling on this request. But the Court sees no reason why Plaintiff 21 may not raise the issue before the ALJ on remand. 22 Accordingly, IT IS ORDERED: 23 1. 24 25 Defendant’s Motion for Summary Judgment, ECF No. 20, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is 26 GRANTED, in part, and the matter is REMANDED to the Commissioner for 27 additional proceedings consistent with this Order. 28 3. Application for attorney fees may be filed by separate motion. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 23 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 3 and the file shall be CLOSED. 4 DATED April 8, 2015. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 24

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