Wood v. Colvin, No. 1:2014cv03124 - Document 24 (E.D. Wash. 2015)
Court Description: ORDER GRANTING ECF No. 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT and denying ECF No. 18 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (TR, Intake Clerk)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 CHRISTINA WOOD, 10 No. 1:14-CV-03124-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 v. 12 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. 15, 18. Attorney D. James Tree represents Christina Wood (Plaintiff); 19 Special Assistant United States Attorney Franco L. Becia represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion 23 for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; 24 and REMANDS the matter to the Commissioner for calculation and immediate 25 award of benefits. 26 JURISDICTION 27 Plaintiff filed an application for Supplemental Security Income (SSI) on 28 March 11, 2011, alleging disability beginning on April 7, 2006, due to mental and ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 physical impairments. Tr. 166-73. The SSI application was denied initially and 2 upon reconsideration. Tr. 110-13, 116-21. Administrative Law Judge (ALJ) Tom 3 L. Morris held a hearing on September 12, 2012, at which Plaintiff, represented by 4 counsel, testified as did vocational expert (VE) Trevor Duncan. Tr. 41-80. The 5 ALJ issued an unfavorable decision on October 26, 2012. Tr. 25-36. The Appeals 6 Council denied review. Tr. 1-4. The ALJ’s October 2012 decision became the 7 final decision of the Commissioner, which is appealable to the district court 8 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 9 August 28, 2014. ECF No. 1, 4. 10 STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was 42 years old at the time she filed her SSI application. Tr. 43. 15 Plaintiff is married and has five children. Tr. 49. Plaintiff did not complete school 16 past the eighth grade and has not obtained a GED. Tr. 50. Plaintiff has never been 17 employed at a full time job. Tr. 49. 18 At the administrative hearing, Plaintiff described several traumatic events 19 that have happened to her, including an incident where police entered her house 20 and Tazed her. Tr. 51, 56. Plaintiff testified that she has nightmares, trouble 21 sleeping, and is usually agitated to the point that “[she] [can] hardly be around 22 people.” Tr. 51. Plaintiff stated that she spends most of her time in her room and 23 does not like to talk to others. Tr. 53. Plaintiff testified that stress caused her 24 ulcers to bleed and makes her vomit three or four times a week. Tr. 54. Plaintiff 25 stated that, due to injuries sustained in a car accident, she can only stand for about 26 five minutes before her back starts hurting. Tr. 57-58. Plaintiff testified that she 27 has severe headaches about once a week. Tr. 58. Plaintiff has trouble 28 concentrating and low energy. Tr. 59. Plaintiff also experiences serious pain in ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 2 her left foot. Tr. 77-78. Plaintiff testified that sometimes it’s hard for her to get out of bed in the 3 morning. Tr. 52. She can occasionally go to the grocery store, Tr. 52, and 4 typically tries to do a little laundry and some dishes each day, Tr. 55. Plaintiff 5 testified that she takes her grandchildren to the movies “once in a while.” Tr. 59. 6 Plaintiff did not have medical insurance since five or six years prior to the 7 hearing. Tr. 53. Plaintiff stated that she was interested in mental health 8 counseling, but could not afford it without insurance coverage. Tr. 60-61. 9 10 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 11 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 12 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 13 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 14 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 15 not supported by substantial evidence or if it is based on legal error. Tackett v. 16 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 17 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 18 another way, substantial evidence is such relevant evidence as a reasonable mind 19 might accept as adequate to support a conclusion. Richardson v. Perales, 402 20 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 21 interpretation, the court may not substitute its judgment for that of the ALJ. 22 Tackett, 180 F.3d at 1097; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 23 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial evidence 24 will still be set aside if the proper legal standards were not applied in weighing the 25 evidence and making the decision. Brawner v. Secretary of Health and Human 26 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence supports the 27 administrative findings, or if conflicting evidence supports a finding of either 28 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 2 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). SEQUENTIAL EVALUATION PROCESS 3 The Commissioner has established a five-step sequential evaluation process 4 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 5 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 6 proof rests upon claimants to establish a prima facie case of entitlement to 7 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once 8 claimants establish that physical or mental impairments prevent them from 9 engaging in their previous occupations. 20 C.F.R. § 416.920(a)(4). If claimants 10 cannot do their past relevant work, the ALJ proceeds to step five, and the burden 11 shifts to the Commissioner to show that (1) the claimants can make an adjustment 12 to other work, and (2) specific jobs exist in the national economy which claimants 13 can perform. Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1193-1194 (2004). 14 If claimants cannot make an adjustment to other work in the national economy, a 15 finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(i-v). 16 17 18 19 20 21 ADMINISTRATIVE DECISION On October 26, 2012, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 11, 2011, her application date. Tr. 27. At step two, the ALJ determined Plaintiff had the following severe 22 impairments: degenerative disc disease, osteoarthritis, obesity, gastritis and 23 duodenitis, other disorders of gastrointestinal system, thyroid disorders, anxiety 24 disorders, and affective disorders. Tr. 27. 25 At step three, the ALJ found Plaintiff did not have an impairment or 26 combination of impairments that met or medically equaled the severity of one of 27 the listed impairments. Tr. 27. The ALJ assessed Plaintiff’s residual function 28 capacity (RFC) and determined she had the ability to perform sedentary work ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 subject to the following limitations: limited to frequent climbing of ramps/stairs, 2 stooping, kneeling, crouching, and crawling; never climbing 3 ladders/ropes/scaffolds; must avoid concentrated exposure to extreme cold, 4 extreme heat, and hazards; limited to frequent contact with supervisors/coworkers; 5 limited to occasional contact with the general public; and limited to low stress, 6 defined as only occasional changes in a work setting. Tr. 29. 7 8 At step four, the ALJ concluded that Plaintiff had no past relevant work. Tr. 35. 9 At step five, the ALJ determined that, considering Plaintiff’s age, education, 10 work experience and RFC, and based on the testimony of the VE, there were other 11 jobs that exist in significant numbers in the national economy Plaintiff could 12 perform, including the jobs of assembler, semi-conductor bonder, and ticket taker. 13 Tr. 35-36. The ALJ thus concluded Plaintiff was not under a disability within the 14 meaning of the Social Security Act at any time from March 11, 2011, through the 15 date of the ALJ’s decision, October 26, 2012. Tr. 36. 16 ISSUES The question presented is whether substantial evidence supports the ALJ’s 17 18 decision denying benefits and, if so, whether that decision is based on proper legal 19 standards. Plaintiff contends the ALJ erred by failing to (1) properly credit 20 Plaintiff’s testimony about the severity of her symptoms; (2) accord weight to the 21 opinions of Plaintiff’s psychological consultative examiners; (3) credit the lay 22 witness testimony of Charles Wood; and (4) account for all of Plaintiff’s 23 limitations in the ALJ’s RFC determination. 24 25 26 27 28 DISCUSSION A. Plaintiff’s Credibility Plaintiff contests the ALJ’s adverse credibility determination. ECF No. 15 at 19-26. It is generally the province of the ALJ to make credibility determinations, ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 2 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 3 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 4 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 5 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 6 “General findings are insufficient: rather the ALJ must identify what testimony is 7 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 8 F.3d at 834. 9 In this case, the ALJ found Plaintiff’s medically determinable impairments 10 could reasonably be expected to cause some of the alleged symptoms, but the 11 medical evidence did not support the alleged ongoing severity of symptoms as 12 reported by Plaintiff. Tr. 31-32. In finding Plaintiff less than credible, the ALJ 13 reasoned that Plaintiff’s reporting was (1) contradicted by her own statements; (2) 14 inconsistent with her activities of daily living (ADL); and (3) not supported by 15 objective medical evidence. Tr. 31-32. The ALJ also reasoned that Plaintiff’s 16 impairments could be managed with “treatment compliance,” and suggested that 17 Plaintiff’s current unemployment may result from a lack of work history rather 18 than medical problems. Tr. 31-32. 19 1. Inconsistencies in Self-Reporting and ADL 20 The ALJ identified a number of inconsistencies between Plaintiff’s self- 21 reporting of her symptoms and between her self-reporting and her ADL. In 22 determining a claimant’s credibility, the ALJ may consider “ordinary techniques of 23 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 24 statements . . . and other testimony by the claimant that appears less than candid.” 25 Smolen, 80 F.3d at 1284. Furthermore, "daily activities may be grounds for an 26 adverse credibility finding if a claimant is able to spend a substantial part of his 27 day engaged in pursuits involving performance of physical functions that are 28 transferable to a work setting." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 2 (internal quotation marks omitted). The ALJ found Plaintiff’s symptom reporting inconsistent with the fact that 3 she also reported being able to go shopping, take her grandchildren to a movie, and 4 help prepare for her grandchild’s birthday party. The Court agrees with Plaintiff 5 that Plaintiff never testified that she cannot leave the house. Compare Tr. 31 (ALJ 6 stating “[t]he claimant says she cannot leave the house”) with Tr. 53 (Plaintiff 7 testifying that she spends most of her time in her room and has “a hard time being 8 around people”). The fact that Plaintiff occasionally went shopping, occasionally 9 took her grandchildren to the movies, and once made cupcakes and wrapped 10 presents is not inconsistent with her testimony that she spends most of her time in 11 her room. Thus, the ALJ erred in finding these inconsistencies. 12 The ALJ also cited Plaintiff’s testimony that she walked three blocks to a 13 convenience store three months prior to the hearing. The ALJ inferred from this 14 testimony that Plaintiff was capable of walking “six blocks round trip plus the 15 standing that comes from being in the store.” Tr. 31. Plaintiff does not dispute this 16 inference, and such testimony is contrary to Plaintiff’s statement that she “cannot 17 walk more than a block.” Tr. 198. The ALJ’s conclusion that Plaintiff can walk 18 more than she alleges is supported by substantial evidence, see, e.g., Tr. 391 19 (Plaintiff reported walking for exercise 3-4 times per week), and is a specific, 20 clear, and convincing reason for undermining Plaintiff’s credibility. 21 The ALJ cited instances where Plaintiff was able to go fishing (“when 22 driven right to the fishing spot”), went to a casino, watched television, and 23 exercised. Tr. 31. As discussed in the preceding paragraph, there is some 24 inconsistency in Plaintiff’s reported ability to walk and exercise. But being able to 25 watch television is consistent with Plaintiff’s testimony. See, e.g., Tr. 199 26 (Plaintiff reporting that she typically watches television from the time she wakes 27 up to about 2:00 p.m.). Furthermore, Plaintiff’s activities of going fishing 28 occasionally and going to a casino once (followed by an emergency room visit), ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 neither of which require significant physical exertion or extensive social contact, 2 do not contradict Plaintiff’s testimony that she generally isolates herself in her 3 room and has trouble being other people. Tr. 53. Other than the inconsistencies 4 regarding Plaintiff’s walking ability, Plaintiff’s ADL, as identified by the ALJ, do 5 not appear to contradict her self-reporting and the ALJ erred in using these 6 instances to discredit Plaintiff. See Reddick v. Chater 157 F.3d 715, 722 (9th Cir. 7 1998) (“[D]isability claimants should not be penalized for attempting to lead 8 normal lives in the face of their limitations.”). 9 10 11 12 2. Unsupported by Objective Medical Evidence The ALJ found “no objective medical evidence to support the alleged limiting effects of Plaintiff’s impairments.” Tr. 31. Although it cannot serve as the sole ground for rejecting a claimant's 13 credibility, objective medical evidence is a "relevant factor in determining the 14 severity of the claimant's pain and its disabling effects.” Rollins v. Massanari, 261 15 F.3d 853, 857 (9th Cir. 2001). 16 A number of Plaintiff’s reported physical impairments are documented by 17 X-rays, a CT scan, and other test results. ECF No. 15 at 24. In interpreting the 18 severity of these impairments, the ALJ properly relied on the opinion of examining 19 source, Steven Rode, DO, who opined that Plaintiff’s physical limitations resulted 20 in few workplace limitations. Tr. 31-32, 357. 21 Plaintiff’s mental impairments are supported by the mental status 22 examinations (MSEs) of Jesse McClelland, Ph.D. and Matthew Anderson, 23 L.I.C.S.W., discussed infra. Both Dr. McClelland and Mr. Anderson opined that 24 Plaintiff’s mental impairments would significantly affect her ability to function in 25 the workplace. These opinions, supported by MSEs, are consistent with Plaintiff’s 26 testimony. 27 28 While the ALJ did not err in concluding that the severity of Plaintiff’s physical impairments were unsupported by the medical evidence, the ALJ was ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 mistaken in likewise concluding that objective medical evidence did not support 2 Plaintiff’s alleged mental impairments. Therefore, the ALJ’s conclusion that “no 3 objective medical evidence . . . support[s] the alleged limiting effects of Plaintiff’s 4 impairments,” Tr. 31, is not a specific, clear, and convincing reason to undermine 5 Plaintiff’s credibility. 6 3. 7 The ALJ concluded that Plaintiff’s “impairments are all medically 8 manageable with treatment compliance.” Tr. 32. The ALJ noted that Plaintiff’s 9 “[a]ccess to insurance is an issue,” but further noted that “the records suggest she 10 11 Impairments Manageable with Treatment has been referred to low cost providers.” Tr. 32. Generally, the fact that a condition can be remedied by treatment or 12 medication is a legitimate reason for discrediting a claimant’s testimony. Warre v. 13 Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Failure to 14 follow a course of treatment may be excused, however, if the claimant cannot 15 afford the treatment. Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). 16 There is substantial evidence in the record that Plaintiff has not had health 17 insurance coverage for several years prior to the hearing. Plaintiff apparently has 18 also been unable to obtain discounted health services due to her assets. See Tr. 61 19 (“I can’t get help no help for nothing. They say I own too much.”). The ALJ’s 20 citation to “Exhibit 10F/3, 11” does not appear to support his conclusion that 21 Plaintiff was “referred to low cost providers.” Tr. 32. Furthermore, the ALJ 22 suggests that Plaintiff’s habit of smoking one pack of cigarettes a day casts doubt 23 on her reporting that she could not afford her medication. Tr. 32. The fact that 24 Plaintiff smokes, and has money to spend to spend on cigarettes, is not adequate 25 grounds to undermine her credibility or find that she can afford medical treatment. 26 See, e.g., McElhaney v. Astrue, 2011 WL 1045760, *5-6 (W.D. Wash. 2011) 27 (finding ALJ erred in citing claimant’s cigarette smoking as grounds to conclude 28 that claimant could afford medical treatment). ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 Given that substantial evidence in the record supports the fact that Plaintiff 2 did not have insurance coverage, and did not have enough money to pay for 3 medical treatment, the ALJ should not have used the fact that she failed to undergo 4 recommended courses of treatment as grounds for discrediting Plaintiff. 5 4. Lack of Work History 6 The ALJ noted that “[Plaintiff] has never worked, which raises some 7 questions as to whether the current unemployment is truly the result of medical 8 problems.” Tr. 31. Plaintiff testified that she had never worked full time because 9 she had five children and her husband supported the family. Tr. 49. The ALJ has 10 latitude to consider Plaintiff’s limited work history as grounds for questioning 11 whether her medical impairments were the sole reason for being unable to work. 12 See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (ALJ’s finding that 13 claimant had limited work history and “ha[d] shown little propensity to work in her 14 lifetime” was a specific, clear, and convincing reasons for discounting the 15 claimant’s testimony). The ALJ’s reasoning that Plaintiff’s lack of work history 16 suggested that she might not work for reasons other than disability was a specific, 17 clear, and convincing reason for discounting her credibility. 18 5. Conclusion 19 Three out of the four reasons underlying the ALJ’s adverse credibility 20 determination were based, in some part, on legal error or not supported by 21 substantial evidence. Given the extent of the ALJ’s errors, the Court cannot say 22 that the errors were harmless. Cf. Batson, 359 F.3d at 1197 (finding harmless error 23 when one of the ALJ’s reasons underlying an adverse credibility determination was 24 flawed but several other reasons supported it). Therefore, the Court will remand as 25 discussed infra. 26 B. 27 28 ALJ’s Evaluation of Medical and “Other” Sources Plaintiff argues the ALJ failed to properly consider and weigh the medical opinion expressed by examining psychologist Jesse McClelland, M.D., and Russell ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 2 Anderson, L.I.C.S.W. ECF No. 15 at 12-18. “In making a determination of disability, the ALJ must develop the record 3 and interpret the medical evidence.” Howard ex. rel. Wolff v. Barhart, 341 F.3d 4 1006, 1012 (9th Cir. 2003). In weighing medical source opinions, the ALJ should 5 distinguish between three different types of physicians: (1) treating physicians, 6 who actually treat the claimant; (2) examining physicians, who examine but do not 7 treat the claimant; and, (3) nonexamining physicians who neither treat nor examine 8 the claimant. Lester, 81 F.3d at 830. The ALJ should give more weight to the 9 opinion of a treating physician than to the opinion of an examining physician. 10 Orn, 495 F.3d at 631. The ALJ should give more weight to the opinion of an 11 examining physician than to the opinion of a nonexamining physician. Id. 12 When a physician’s opinion is not contradicted by another physician, the 13 ALJ may reject the opinion only for “clear and convincing” reasons. Baxter v. 14 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a physician’s opinion is 15 contradicted by another physician, the ALJ is only required to provide “specific 16 and legitimate reasons” for rejecting the opinion of the first physician. Murray v. 17 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Historically, the courts have 18 recognized conflicting medical evidence, the absence of regular medical treatment 19 during the alleged period of disability, and the lack of medical support for doctors’ 20 reports based substantially on a claimant’s subjective complaints of pain as 21 specific, legitimate reasons for disregarding a treating or examining physician’s 22 opinion. See, e.g., Flaten v. Secretary of Health and Human Servs., 44 F.3d 1453, 23 1463-1464 (9th Cir. 1995); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 24 Furthermore, an ALJ is required to consider evidence from “other sources,” 25 including social workers, 20 C.F.R. § 416.913(d); S.S.R. 06-03p, “as to how an 26 impairment affects a claimant’s ability to work,” Sprague, 812 F.2d at 1232. An 27 ALJ must give “germane” reasons to discount evidence from “other sources.” 28 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Germane reasons to discount ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 an opinion include contradictory opinions and lack of support in the record. 2 Thomas, 278 F.3d at 957. Even though medical source evidence is the only way to 3 establish an impairment, an ALJ cannot ignore information from non-acceptable 4 medical sources regarding a claimant’s physical and mental capabilities. Sprague, 5 812 F.2d at 1232. 6 In this case, the opinion of reviewing psychiatrist James Bailey, Ph.D., Tr. 7 105-09, contradicts the opinions of Dr. McClelland and Mr. Anderson. Therefore, 8 the ALJ was only required to provide specific and legitimate reasons for rejecting 9 Dr. McClelland’s opinion and germane reasons for rejecting Mr. Anderson’s 10 opinions. 11 1. Dr. McClelland 12 Plaintiff presented to Dr. McClelland for a psychiatric review on May 21, 13 2011. Tr. 358-63. Dr. McClelland did not review any medical records other than a 14 disability report completed by Plaintiff. Tr. 358. Dr. McClelland noted that 15 Plaintiff had “significant fears of interactions which inhibit her socially.” Tr. 360. 16 Dr. McClelland observed Plaintiff as “well-groomed” but in “obvious pain.” Tr. 17 360. Dr. McClelland diagnosed Plaintiff with major depressive disorder, severe, 18 recurrent, without psychotic features and post-traumatic stress disorder, delayed 19 onset, chronic. Tr. 361. 20 Dr. McClelland opined, “If [Plaintiff] is able to get the appropriate 21 combination of medications and therapy, there is good likelihood that her condition 22 could improve within the next 12 months.” Tr. 362. Due to her “medical 23 problems” and the “complicated nature of her psychological problems,” however, 24 Dr. McClelland noted Plaintiff’s “overall prognosis is poor on the long term.” Tr. 25 362. Dr. McClelland opined that Plaintiff should be able to perform “simple and 26 repetitive tasks,” but she would take longer to learn a particular job, would struggle 27 “significantly to interact with coworkers and the public,” and would have trouble 28 maintaining regular attendance and dealing with the “usual stress encountered in ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 the workplace.” Tr. 362. Dr. McClelland further noted that Plaintiff is “highly 2 dysfunctional due to her psychiatric problems,” and is “basically unable to do 3 anything.” Tr. 362. 4 The ALJ gave little weight to Dr. McClelland’s opinions, reasoning his 5 opinions were (1) not based on a review of any “longitudal medical records,” (2) 6 solely based on Plaintiff’s self-reporting, and (3) inconsistent with his notes from 7 his mental status examination. Tr. 33. 8 The ALJ did not provide specific and legitimate reasons for rejecting Dr. 9 McClelland’s opinions. Although Dr. McClelland did not review any of Plaintiff’s 10 medical records, this is unsurprising as Plaintiff has relatively few medical records. 11 Other than passing references to depression and anxiety in hospital and physician’s 12 reports, the record contains virtually no mental health treatment records prior to 13 Plaintiff’s SSI application. The fact that Dr. McClelland did not review records 14 that do not exist is not a proper ground for rejecting Dr. McClelland’s opinion. 15 Likewise, the fact that his report is based on Plaintiff’s self-reporting is not an 16 appropriate ground to reject Dr. McClelland’s opinion as the Court found supra 17 that the ALJ’s adverse credibility finding was flawed. Finally, Dr. McClelland’s 18 observations of Plaintiff during the mental status exam might contradict Dr. 19 McClelland’s opinions and diagnoses, but these inconsistencies alone are not 20 enough to complete discredit Dr. McClelland’s report. The fact that Plaintiff can 21 present herself to a treatment provider to receive medical care in a one-on-one 22 clinical setting is not inconsistent with her testimony that she generally stays home 23 and avoids other people. Furthermore, Dr. McClelland’s observations have little, if 24 any, bearing on Plaintiff’s ability to function socially. The ALJ failed to provide 25 specific and legitimate reasons for giving Dr. McClelland’s opinions little weight. 26 2. 27 Mr. Anderson completed a psychiatric evaluation of Plaintiff on August 17, 28 Mr. Anderson 2011. Tr. 374-80. Mr. Anderson diagnosed major depressive disorder, single ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 episode, severe, without psychotic features; posttraumatic stress disorder; pain 2 disorder associated with both psychological factors and a general medical 3 condition; and, various physical impairments. Tr. 376. Mr. Anderson noted 4 Plaintiff had “[r]ecurrent suicidal thoughts, no job, few friends, paired family 5 relationships, anxiety, major mood dysfunction, [and] serious impairment in social 6 and occupational functioning.” Tr. 376. Mr. Anderson assessed a number of 7 marked limitations Plaintiff would have relating to cognitive and social skills 8 required in the work place. Tr. 377. Mr. Anderson commented that Plaintiff 9 “[w]ould likely function[] better in a more solitary work environment, but would 10 still have problems with communication[] and ability to focus and stay on task.” 11 Tr. 377. Mr. Anderson concluded, “At the present time [Plaintiff] is struggling 12 just to complete activities of daily living, primarily as a result of chronic pain, and 13 depression, poor motivation, and negative expectations.” Tr. 377. Mr. Anderson 14 further opined, “After protracted treatment, [Plaintiff] may be able to engage in 15 more solitary type of work [that accommodates] her anxiety and relational 16 problems.” Tr. 377. 17 The ALJ gave little weight to Mr. Anderson’s opinions. The ALJ reasoned 18 that Mr. Anderson was not an acceptable medical source, had not reviewed 19 Plaintiff’s “longitudinal medical records,” and his opinions were based on 20 Plaintiff’s self-reporting, contrary to Plaintiff’s ADL, and internally inconsistent. 21 Tr. 33. 22 The ALJ failed to provide germane reasons for rejecting Mr. Anderson’s 23 opinions. Even though Mr. Anderson is not an acceptable medical source, the ALJ 24 must still generally give weight to his assessment of how Plaintiff’s impairments 25 affect her ability to work. Sprague, 812 F.2d at 1232. For the reasons mentioned 26 in the Court’s discussion of Dr. McClelland’s opinions supra, the facts that Mr. 27 Anderson did not review Plaintiff’s longitudinal medical records and that his 28 opinions were based on Plaintiff’s self-reporting are not legitimate reasons for ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 rejecting Mr. Anderson’s opinions. Also as discussed supra, Plaintiff’s reporting 2 of walking and exercise is inconsistent with some of her testimony. But the 3 inconsistencies in her reporting of her physical impairments do not necessarily 4 suggest that “she was not as isolated as alleged,” as found by the ALJ. Tr. 33. 5 Thus, the ALJ failed to provide germane reasons for giving little weight to Mr. 6 Anderson’s opinions concerning how Plaintiff’s impairment affect her ability to 7 work. 8 C. 9 10 11 Lay Witness Testimony Plaintiff argues that the ALJ failed to properly consider the statements of Charles Wood, Plaintiff’s husband. ECF No. 15 at 26-29. Lay witness testimony cannot establish the existence of medically 12 determinable impairments. Cf. 20 C.F.R. § 416.913(d)(a). But lay witness 13 testimony is “competent evidence” as to “how an impairment affects [a claimant’s] 14 ability to work.” Stout v. Comm'r of Soc. Sec., 454 F.3d 1050 (9th Cir. 2006); 20 15 C.F.R. § 416.913(d)(4); see also Dodrill, 12 F.3d at 918-19 (“[F]riends and family 16 members in a position to observe a claimant’s symptoms and daily activities are 17 competent to testify as to her condition.”). Simply stating that the lay witness 18 testimony does not objectively establish a medically determinable impairment is 19 not a germane reason for rejecting lay witness testimony that concerns a claimant’s 20 ability to work. See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (stating 21 that the ALJ “should not have discredited [a lay witness’s] testimony on the basis 22 of its relevance or irrelevance to medical conclusions.”). 23 Mr. Wood, Plaintiff’s husband, completed a third party function report on 24 May 3, 2011. Tr. 206-14. Mr. Wood stated that Plaintiff has a variety of physical 25 and mental ailments that make it difficult for her to complete household chores and 26 daily activities. Tr. 207-09. Mr. Wood stated that he has to shave Plaintiff’s legs, 27 help Plaintiff dress herself, and help Plaintiff wash herself and get in and out of the 28 bath. Tr. 208. Mr. Wood stated that Plaintiff can start vacuuming or laundry, but ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 cannot finish the job and that she tries to help with yard work. Tr. 209-10. Mr. 2 Wood stated that Plaintiff can go shopping once a week, but he usually 3 accompanies her. Tr. 210. Mr. Wood stated that Plaintiff spends most of her time 4 watching television, and will sometimes watch her grandchildren and go for short 5 drives. Tr. 211. Mr. Wood indicated that Plaintiff has no problem getting along 6 with friends, family, or others, but that Plaintiff is not interested in, and gets 7 anxious at the prospect of, being around other people. Tr. 212. Mr. Wood noted 8 Plaintiff had difficulty walking, standing, concentrating, remembering, and dealing 9 with authority figures. Tr. 212-13. The ALJ gave little weight to Mr. Wood’s statements. The ALJ reasoned 10 11 Mr. Wood’s statements were inconsistent with (1) Plaintiff’s medical records, and 12 (2) Plaintiff’s self-reporting. The ALJ partially erred in considering Mr. Wood’s statements. The ALJ 13 14 correctly noted that Mr. Wood’s statements regarding how he helps Plaintiff dress, 15 bathe, and shave are inconsistent with Plaintiff’s own reporting. See Tr. 354 16 (Plaintiff reporting she can take care of personal needs). Also, as discussed supra, 17 there are some inconsistencies regarding Plaintiff’s ability to walk and exercise. 18 But Mr. Wood’s statements regarding Plaintiff’s ability to perform household 19 chores, cognitive functioning, and social limitations are largely consistent with 20 Plaintiff’s testimony and the reports of Dr. McClelland and Mr. Anderson; 21 therefore, the ALJ partially erred in finding Mr. Wood’s statements inconsistent 22 with Plaintiff’s medical records and self-reporting. 23 D. RFC Assessment Plaintiff argues that the ALJ’s RFC assessment does not account for all of 24 25 Plaintiff’s functional limitations, particularly her mental limitations. ECF No. 15 26 at 29. 27 28 A claimant’s RFC is “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, ORDER GRANTING PLAINTIFF’S MOTION . . . - 16 1 Appendix 2, § 200.00(c) (defining RFC as the “maximum degree to which the 2 individual retains the capacity for sustained performance of the physical-mental 3 requirements of jobs.”). In formulating an RFC, the ALJ weighs medical and other 4 source opinion and also considers the claimant’s credibility and ability to perform 5 daily activities. See, e.g., Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1226 6 (9th Cir. 2009). 7 In this case, the ALJ determined Plaintiff had the ability to perform 8 sedentary work subject to the following: limited to frequent climbing of 9 ramps/stairs, stooping, kneeling, crouching, and crawling; never climbing 10 ladders/ropes/scaffolds; must avoid concentrated exposure to extreme cold, 11 extreme heat, and hazards; limited to frequent contact with supervisors/coworkers; 12 limited to occasional contact with the general public; and limited to low stress, 13 defined as only occasional changes in a work setting. Tr. 29. When the ALJ asked 14 the VE if a hypothetical individual with these limitations could work, the VE 15 opined that the individual could work as an assembler, semi-conductor bonder, or 16 ticket-taker. Tr. 69. 17 “Hypothetical questions posed to the [VE] must set out all the limitations 18 and restrictions of the particular claimant.” Embrey v. Bowen, 849 F.2d 418, 422 19 (9th Cir. 1988). The hypothetical should be “accurate, detailed, and supported by 20 the medical record.” Tackett, 180 F.3d at 1101. The testimony of a VE “is 21 valuable only to the extent that it is supported by medical evidence.” Sample v. 22 Schweiker, 694 F.2d 639, 644 (9th Cir. 1982). The VE’s opinion about a 23 claimant’s RFC has no evidentiary value if the assumptions in the hypothetical are 24 not supported by the record. Embrey, 849 F.2d at 422. Nonetheless, an ALJ is 25 only required to present the VE with those limitations the ALJ finds to be credible 26 and supported by the evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th 27 Cir. 2001). 28 Plaintiff’s counsel posed numerous hypothetical questions to the VE. In ORDER GRANTING PLAINTIFF’S MOTION . . . - 17 1 response to Plaintiff’s counsel’s questioning, the VE opined that a person would 2 not be able to sustain employment if he or she missed more than twelve workdays 3 a year due to psychological symptoms. Tr. 73. The VE also testified that a person 4 would likely not be able to work if he or she needed two or more extra breaks per 5 week due to psychological symptoms. Tr. 74. Similarly, a person would not be 6 able to work if he or she demonstrated “off-task behavior” more than ten percent of 7 the workday. Tr. 75. 8 9 When greater weight is given to Plaintiff’s testimony and the opinions of Dr. McClelland and Mr. Anderson, the Court finds that Plaintiff’s counsel’s 10 hypothetical questions to the VE more accurate reflect Plaintiff’s limitations. 11 Plaintiff testified that “[she] [can] hardly be around people,” Tr. 51, that she spends 12 most of her time in her room and does not like to talk to others, Tr. 53, that stress 13 caused her ulcers to bleed and makes her vomit three or four times a week, Tr. 54. 14 Dr. McClelland opined that Plaintiff would struggle “significantly to interact with 15 coworkers and the public,” and would have trouble maintaining regular attendance 16 and dealing with the “usual stress encountered in the workplace.” Tr. 362. Dr. 17 McClelland further noted that Plaintiff is “highly dysfunctional due to her 18 psychiatric problems,” and is “basically unable to do anything.” Tr. 362. Mr. 19 Anderson noted that Plaintiff would likely demonstrate social isolation, distrust of 20 others, and have panic attacks. Tr. 377. Mr. Anderson noted that Plaintiff had 21 “poor interpersonal communication skills, “difficulty focusing and staying on 22 tasks,” and was “likely to quit or walk off the job.” Tr. 377. When greater weight 23 is given to Plaintiff’s self-reporting and the medical evidence, the Court finds that 24 the ALJ’s RFC determination, and hypothetical questions posed to the VE, did not 25 set out all of Plaintiff’s limitations and restrictions. Embrey, 849 F.2d at 422. 26 REMEDY 27 The decision whether to remand for further proceedings or reverse and 28 award benefits is within the discretion of the district court. McAlliser v. Sullivan, ORDER GRANTING PLAINTIFF’S MOTION . . . - 18 1 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 2 where "no useful purpose would be served by further administrative proceedings, 3 or where the record has been thoroughly developed," Varney v. Secretary of Health 4 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 5 by remand would be "unduly burdensome," Terry v. Sullivan, 903 F.2d 1273, 1280 6 (9th Cir. 1990). This policy is based on the "need to expedite disability claims." 7 Varney, 859 F.2d at 1401. But where there are outstanding issues that must be 8 resolved before a determination can be made, and it is not clear from the record 9 that the ALJ would be required to find a claimant disabled if all the evidence were 10 properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 11 595-96 (9th Cir. 2004). 12 In this case, there are no outstanding issues that must be resolved before a 13 determination can be made. Given the general consensus between Plaintiff’s 14 examining medical sources, which is largely consistent with Plaintiff’s self- 15 reporting, it is clear from the record that the ALJ would be required to find 16 Plaintiff disabled if all the evidence were properly evaluated. Therefore, the Court 17 will remand for immediate calculation of benefits. 18 CONCLUSION 19 Having reviewed the record and the ALJ’s findings, the Court finds the 20 ALJ’s decision is not supported by substantial evidence and is based on legal error. 21 Accordingly, IT IS ORDERED: 22 23 24 1. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 25 GRANTED, and the matter is REMANDED to the Commissioner for calculation 26 and immediate award of benefits. 27 3. Application for attorney fees may be filed by separate motion. 28 The District Court Executive is directed to file this Order and provide a copy ORDER GRANTING PLAINTIFF’S MOTION . . . - 19 1 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 2 and the file shall be CLOSED. 3 DATED April 27, 2015. 4 5 6 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 20
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