Parkins v. Commissioner Social Security Administration
Filing
21
Findings & Recommendation: The Court finds that a remand is warranted 2 . Please access entire text by document number hyperlink. Objections to the Findings and Recommendation are due by 12/7/2009. If objections are filed, any responses to the objections are due 10 days after the objections are filed. Ordered and signed on 11/18/09 by Magistrate Judge Mark D. Clarke. (jw)
<![CDATA[
FIL£W09 NOV 1815:15usOC-ORM
IN T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T OF O R E G O N R O B E R T R. P A R K I N S II, Plaintiff, v. M I C H A E L J. A S T R U E , C o m m i s s i o n e r , Social Security A d m i n i s t r a t i o n , Defendant. Civil N o . 09-6015-CL REPORT AND RECOMMENDATION
C L A R K E , Magistrate Judge. P l a i n t i f f R o b e r t R. Parkins II brings this action p u r s u a n t to s e c t i o n 205(g) o f the Social Security Act, as a m e n d e d (Act), 42 U.S.C. §§ 405(g), to o b t a i n j u d i c i a l r e v i e w o f the C o m m i s s i o n e r ' s final d e c i s i o n d e n y i n g p l a i n t i f f s a p p l i c a t i o n s f o r s u p p l e m e n t a l s e c u r i t y i n c o m e b e n e f i t s . F o r t h e r e a s o n s e x p l a i n e d , t h e d e c i s i o n o f t h e C o m m i s s i o n e r s h o u l d be r e v e r s e d a n d remanded for further proceedings.
BACKGROUND
P l a i n t i f f applied for benefits alleging disability c o m m e n c i n g M a y 1, 2001. His a p p l i c a t i o n s w e r e denied. P l a i n t i f f r e q u e s t e d a hearing, w h i c h w a s h e l d b e f o r e a n A d m i n i s t r a t i v e Law Judge (ALJ) o n M a r c h 6 , 2 0 0 7 . Plaintiff, represented by c o u n s e l , a p p e a r e d and testified, as
did a medical expert and vocational expert. On March 30, 2007, the A L l rendered an adverse decision. The Appeals Council granted p l a i n t i f f s request for review and issued an unfavorable decision on November 1 7 , 2 0 0 8 , making the Appeals Council's decision the final decision o f the Commissioner. Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (and authorities cited). At the time o f p l a i n t i f f s hearing and the A L l ' s decision, p l a i n t i f f was thirty-six years old. Plaintiff took special education classes throughout his schooling and completed the ninth or tenth grade. Plaintiff has no past relevant work experience. Plaintiff alleges disability as o f May 1, 2001, b a s e d u p o n a c o m b i n a t i o n o f c o g n i t i v e d i s o r d e r , s e v e r e m a j o r d e p r e s s i v e d i s o r d e r , b o r d e r l i n e i n t e l l e c t u a l f u n c t i o n i n g , b i p o l a r d i s o r d e r , and p e r s o n a l i t y d i s o r d e r . The r e l e v a n t medical evidence is discussed below. STANDARDS This Court must affirm the Commissioner's decision i f it is based on the proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F .2d 498, 501 (9 th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 3 8 9 , 4 0 1 (1971) (quoting Consolidated Edison Co. o f N . Y . v. NLRB, 305 U.S. 1 9 7 , 2 2 9 (1938)). The Court considers the record as a whole, and weighs "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9 th Cir. 1986). Where the evidence is susceptible o f more than one rational interpretation, the Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9 th Cir. 1982). Questions o f credibility and resolution o f conflicts in the testimony are functions solely o f the Commissioner, Waters v. Gardner, 452 F.2d 855, 858 2 - REPORT AND R E C O M M E N D A T I O N
n.7 (9 th Cir. 1971), b u t a n y n e g a t i v e c r e d i b i l i t y findings m u s t b e s u p p o r t e d b y findings o n the record a n d s u p p o r t e d b y s u b s t a n t i a l e v i d e n c e , C e g u e r r a v. See'y o f H e a l t h & H u m a n Servs., 933 F . 2 d 7 3 5 , 7 3 8 ( 9 t h C i r . 1 9 9 1 ) . T h e f i n d i n g s o f t h e C o m m i s s i o n e r a s t o a n y fact, i f s u p p o r t e d b y s u b s t a n t i a l e v i d e n c e , s h a l l b e c o n c l u s i v e . 4 2 U . S . C . § 4 0 5 ( g ) . H o w e v e r , e v e n w h e r e f i n d i n g s are s u p p o r t e d b y s u b s t a n t i a l e v i d e n c e , "the d e c i s i o n s h o u l d b e s e t a s i d e i f t h e p r o p e r legal s t a n d a r d s w e r e n o t a p p l i e d i n w e i g h i n g t h e e v i d e n c e a n d m a k i n g t h e d e c i s i o n . " F l a k e v. G a r d n e r , 399 F.2d 532, 540 (9 th Cir. 1968); see also A l l e n v. Heckler, 749 F . 2 d 577, 5 7 9 (9 th Cir. 1984). U n d e r s e n t e n c e f o u r o f 4 2 U . S . C . § 4 0 5 ( g ) , t h e C o u r t h a s t h e p o w e r to e n t e r , u p o n t h e p l e a d i n g s a n d t r a n s c r i p t record, a j u d g m e n t a f f i r m i n g , modifying, o r r e v e r s i n g t h e d e c i s i o n o f t h e C o m m i s s i o n e r , w i t h o r w i t h o u t r e m a n d i n g t h e c a u s e for a r e h e a r i n g .
COMMISSIONER'S DECISION
T h e initial b u r d e n o f p r o o f rests u p o n the c l a i m a n t t o e s t a b l i s h disability. H o w a r d v. H e c k l e r , 7 8 2 F . 2 d 1 4 8 4 , 1 4 8 6 (9 t h Cir. 1986). T o m e e t t h i s b u r d e n , a c l a i m a n t m u s t d e m o n s t r a t e a n "inability t o e n g a g e in a n y s u b s t a n t i a l gainful activity b y r e a s o n o f a n y m e d i c a l l y determinable p h y s i c a l o r m e n t a l i m p a i r m e n t w h i c h c a n b e e x p e c t e d to r e s u l t i n d e a t h o r w h i c h h a s l a s t e d o r c a n be e x p e c t e d t o l a s t for a c o n t i n u o u s p e r i o d o f n o t less t h a n 12 m o n t h s . . . . " 4 2 U.S.C. § 4 2 3 ( d ) ( l )(A). A f i v e - s t e p s e q u e n t i a l p r o c e s s e x i s t s f o r d e t e r m i n i n g w h e t h e r a p e r s o n is d i s a b l e d . B o w e n v. Yuckert, 4 8 2 U.S. 137, 140 (1987); 2 0 C.F.R. §§ 4 0 4 . 1 5 2 0 , 4 1 6 . 9 2 0 . I n s t e p o n e , t h e C o m m i s s i o n e r d e t e r m i n e s w h e t h e r a c l a i m a n t is e n g a g e d i n " s u b s t a n t i a l gainful activity." Y u c k e r t , 4 8 2 U.S. a t 140; 20 C.F.R. §§ 4 0 4 . 1 5 2 0 ( b ) , 4 1 6 . 9 2 0 ( b ) . In the
3 - REPORT AND RECOMMENDAnON
present case, the A p p e a l s Co u n ci l agreed w i t h the A L l t h a t p l a i n t i f f h a d n o t e n g a g e d in substantial gainful activity since O c t o b e r 2 3 , 2 0 0 3 . (Tr. 12, 14, see Tr. 22.) In step two, t h e C o m m i s s i o n e r determines w h e t h e r the c l a i m a n t has "a medically severe i m p a i r m e n t o r c o m b i n a t i o n o f i m p a i r m e n t s . " I f the C o m m i s s i o n e r finds i n t h e n e g a t i v e , the claimant is d e e m e d not disabled. I f the C o m m i s s i o n e r finds a severe i m p a i r m e n t o r combination thereof, the inquiry m o v e s to step three. Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). In the i n s t a n t case, the Appeals Council agreed w i t h t h e A L l ' s finding t h a t p l a i n t i f f s b o r d e r l i n e i n t e l l e c t u a l f u n c t i o n i n g , b i p o l a r d i s o r d e r , a n d p e r s o n a l i t y d i s o r d e r c o n s t i t u t e severe impairments. (Tr. 12, 14, see Tr. 22.) Accordingly, the inquiry m o v e d to step three. In step three, the analysis focuses o n whether the i m p a i r m e n t o r c o m b i n a t i o n o f i m p a i r m e n t s m e e t s o r e q u a l s "one o f a n u m b e r o f l i s t e d i m p a i r m e n t s t h a t t h e [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; see 20 C.F.R. §§ 404.1520(d), 416.920(d). I f so, the c l a i m a n t is conclusively presumed disabled; i f not, the analysis p r o c e e d s to step four. Yuckert, 482 U.S. at 141. In this case, the Appeals Council agreed w i t h the A L l that p l a i n t i f f does n o t h a v e a n i m p a i r m e n t o r c o m b i n a t i o n o f i m p a i r m e n t s w h i c h m e e t o r are m e d i c a l l y e q u a l i n s e v e r i t y t o o n e o f t h e l i s t e d i m p a i r m e n t s . (Tr. 12, 14, see Tr. 22.) In step four, the C o m m i s s i o n e r determines w h e t h e r the c l a i m a n t c a n still perform his "past relevant work." I f the c l a i m a n t is so able, t h e n the C o m m i s s i o n e r finds the claimant "not disabled." Otherwise, t h e inquiry advances to step five. 20 C.F.R. §§ 404.1520(e), 416.920(e). T h e C o m m i s s i o n e r m u s t first i d e n t i f y t h e c l a i m a n t ' s residual f u n c t i o n a l c a p a c i t y ( R F C ) , w h i c h s h o u l d reflect t h e i n d i v i d u a l ' s m a x i m u m r e m a i n i n g ability to p e r f o r m s u s t a i n e d w o r k activities i n
4 - REPORT AND R E C O M M E N D A T I O N
an ordinary w o r k setting for e i g h t hours a day, five days a week. Social Security Ruling (SSR) 96-8p. The R F C is b a s e d o n all relevant evidence i n the case record, i n c l u d i n g the treating physician's medical o p i n i o n s a b o u t w h a t a n individual c a n still do de spite impairments. Id. In this case, t h e A p p e a l s C o u n c i l f o u n d t h a t the R F C f o u n d b y t h e A L l is s u p p o r t e d b y t h e record, that is, t h a t p l a i n t i f f has the R F C to perform simple, repetitive tasks; w i t h n o public contact; o c c a s i o n a l c o - w o r k e r c o n t a c t , b u t no t e a m w o r k ; a n d no m o r e t h a n o c c a s i o n a l c o n t a c t w i t h supervisors. (Tr. 13, 14, see Tr. 23.) The Appeals Council agreed w i t h the A L l t h a t p l a i n t i f f does not have any p a s t r e l e v a n t work. (Tr. 12, 13, 14, see Tr. 25.)
In step five, the b u r d e n is o n the C o m m i s s i o n e r to establish t h a t t h e c l a i m a n t is capable o f
p e r f o r m i n g o t h e r w o r k t h a t e x i s t s i n t h e n a t i o n a l e c o n o m y . Y u c k e r t , 4 8 2 U . S . a t 1 4 1 - 4 2 ; 20 C.F.R. §§ 404.1520(f), 416.920(f). I f the C o m m i s s i o n e r fails to m e e t this burden, then the claimant is d e e m e d disabled. Here, the Appeals Council agreed w i t h the A L l t h a t a person o f p l a i n t i f f s age, e d u c a t i o n , l a c k o f p a s t r e l e v a n t w o r k e x p e r i e n c e , a n d r e s i d u a l f u n c t i o n a l c a p a c i t y could still p e r f o r m w o r k t h a t exists in significant numbers i n the n a t i o n a l e c o n o m y as identified by the vocational expert. (Tr. 12, 13-14, see Tr. 25-26.) Therefore, t h e A p p e a l s Council adopted the A L l ' s c o n c l u s i o n t h a t p l a i n t i f f w a s n o t u n d e r a disability. (Tr. 11, 14, see Tr. 20, 26.)
DISCUSSION
P l a i n t i f f asserts t h a t t h e A L l ' s decision should b e reversed b e c a u s e it is not supported by s u b s t a n t i a l e v i d e n c e a n d c o n t a i n s e r r o r s o f l a w . P l a i n t i f f c o n t e n d s t h a t ( l ) t h e A L l a n d the Appeals Council erred b y failing to address the entire o p i n i o n o f e x a m i n i n g psychologist Dr. T r u h n r e g a r d i n g h i s m e n t a l l i m i t a t i o n s ; (2) t h e A L l f a i l e d t o g i v e c l e a r a n d c o n v i n c i n g r e a s o n s
5 - REPORT AND R E C O M M E N D A T I O N
for rejecting his testimony; and (3) the Commissioner failed to meet his burden o f proving that plaintiff retains the ability to perform other work in the national economy. Dr. Truhn's Opinion Plaintiff contends that the A L l and the Appeals Council erred by failing to address Dr. T r u h n ' s c o n c l u s i o n s t h a t p l a i n t i f f h a s a c o g n i t i v e d i s o r d e r a n d a s e v e r e m a j o r d e p r e s s i v e disorder, and Dr. Truhn's conclusion that plaintiff would be limited to working in a sheltered workshop setting. Defendant contends that the Appeals' Council's assessment o f Dr. Truhn's opinion is free o f legal error because Dr. Truhn's diagnoses did not create a material conflict in the medical e v i d e n c e and b e c a u s e h i s w o r k - r e l a t e d a s s e s s m e n t w a s p r o p e r l y a d d r e s s e d . Generally, the Commissioner gives more weight to the opinion o f a treating source or examining source than to a source who has not treated or examined a claimant. 20 C.F.R. §§ 404.1527( d ) ( l )(2), 416.927( d ) ( l )(2); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). I f the A L l chooses to disregard a treating physician's or an examining physician's opinion, and that opinion is not contradicted by another doctor, he must set forth clear and convincing reasons for doing so. Lester, 81 F.3d at 830; Magallanes, 881 F.2d at 751; Gallant v. Heckler, 753 F.2d 1 4 5 0 , 1 4 5 4 (9 th Cir. 1984). I f a treating or examining physician's opinion is contradicted by that o f another doctor, the A L l must set forth specific and legitimate reasons, based on substantial evidence in the record, for disregarding the opinion o f the treating or examining physician. Lester, 81 F .3d at 830-31; Nguyen v. Chater, 100 F.3d 1462, 1466, (9 th Cir. 1996). The A L l can meet this burden by setting out a detailed and thorough summary o f the facts and conflicting medical evidence, then stating his interpretation, and making findings. Cotton v. Bowen, 799 F.2d 1 4 0 3 , 1 4 0 8 (9th Cir. 1986); 6 - R E P O R T AND R E C O M M E N D A T I O N
Rodriguez v. Bowen, 876 F.2d 7 5 9 , 7 6 2 (9 th Cir. 1989). Further, the opinion o f an examining physician is entitled to greater weight than the opinion o f a nonexamining physician. Lester, 81 F.3d at 830. Plaintiff was referred to David R. Truhn, Psy.D., for a comprehensive psychological examination to determine the impact o f his psychological functioning on his ability to maintain employment. P l a i n t i f f saw Dr. Truhn on May 16, 2001. P l a i n t i f f reported that he was unable to work because he was experiencing emotional lability and his emotions swing from being tired to anger. He stated he becomes angry easily in the work place and has difficulty with authority figures. (Tr. 181-82.) P l a i n t i f f told Dr. Truhn that he's had episodes o f depression throughout his life. During the past year he had had seven episodes o f depression which generally last from a couple o f days to two weeks; he last experienced depression two months previously which lasted for two weeks. His symptoms o f depression include sleeping disturbances, decreased appetite, and a tendency to isolate. Plaintiff said that Lithium helped with episodes where one minute he feels '''real good'" and then a "'split second later'" he becomes angry. He reported that he has heard a muffled voice calling his name at times, but not on a regular basis. He stated he has been "'kind o f a paranoid person'" most o f his life, which leads him to not want to be around people. (Tr. 182.) P l a i n t i f f reported that he had had six j o b s in his life, all o f which lasted less than two weeks. He usually feels embarrassed and would walk o f f three to four jobs, and had been fired for not showing up for work. He stated he does not associate with co-workers and he gets along with supervisors "'as long as they talk to me like I'm a h u m a n being.'" His anger and range o f emotions in the work setting can be disruptive to relationships with co-workers and
7 - REPORT AND R E C O M M E N D A T I O N
supervisors. (Tr. 184.) P l a i n t i f f thinks he has memory problems and is very forgetful. He thinks he was diagnosed in 1988 with "'organic brain syndrome. '" (Tr. 185.)
In the mental status examination section o f his report, Dr. Truhn stated that plaintiff had
very slow response during a test o f knowledge and use o f vocabulary words and might have had processing problems. P l a i n t i f f reported he'd "'always'" had comprehension problems. Dr. Truhn stated that testing took approximately 35% longer than the usual administration by him. (Tr. 181.)
In the psychometric testing section o f his report, Dr. Truhn stated that plaintiff scored in
the borderline range on tests measuring knowledge o f common sense reasoning and ability to solve day to day problems, mathematical abilities and concentration, and knowledge and use o f v o c a b u l a r y words. O n a t e s t m e a s u r i n g a b s t r a c t r e a s o n i n g , p l a i n t i f f s c o r e d i n t h e m e n t a l l y deficient range. P l a i n t i f f scored in the low average range on tests measuring short-term memory, general fund o f knowledge, and long-term memory. Dr. Truhn found that testing indicated that plaintiff would have significant difficulty with written material and his low score might be indicative o f a learning disorder o f written expression. He found that testing indicated that plaintiffs abstract abilities are very weak, and information would be best presented to plaintiff in a repetitious and slow fashion. Testing also was indicative o f cognitive deficits. (Tr. 186.) As relevant here, Dr. Truhn's Axis I diagnoses were cognitive disorder NOS; major depressive disorder, recurrent, severe, without psychotic features; and bipolar II disorder, most recent episode depressed. His Axis II diagnoses were antisocial personality disorder with borderline and obsessive compulsive features; and borderline intellectual functioning. He found
8 - REPORT AND R E C O M M E N D A T I O N
a current GAF o f 36. 1 Dr. Truhn recommended continued monitoring and possible supervision o f p l a i n t i f f s medications; p a r t i c i p a t i o n in individual p s y c h o t h e r a p y a n d in a day t r e a t m e n t program to help structure his time and provide intervention to treat his mood swings and difficulty with authority figures, which might increase his appropriate social contacts; and participation in activities for individuals with organic brain syndrome. Dr. Truhn concluded his summary and recommendation section o f his report with:
It seems that his vocational activities at this time would be limited to a sheltered workshop setting. A sheltered workshop would offer him an ability to work on issues regarding co-workers and supervisors in a supportive therapeutic setting. His pace i f very slow and he may be able to work on improving his pace.
(Tr. 188.) Dr. Truhn opined that p l a i n t i f f s prognosis is guarded. He found that plaintiff seems to suffer from chronic problems related to personality disorder and possible head injury, and that his mood swings may possibly be one o f the symptoms o f the personality disorder, but may respond to long-term therapeutic intervention and use o f medications. (Tr. 187-88.) The Appeals Council did not address any physician's or psychologist's opinions in its decision other than to note the medical expert's testimony given at the hearing. It adopted the ALl's decision as to the medical evidence, and noted the medical expert's testimony. In his decision, the A L l did not refer to Dr. Truhn by name, but referred to his diagnosis o f borderline intellectual functioning and his diagnosis o f personality disorder only, referencing his report by
A GAF o f 3 6 means "Some i m p a i r m e n t i n r e a l i t y t e s t i n g o r c o m m u n i c a t i o n (e.g., speech is at times illogical, obscure or irrelevant) O R m a j o r i m p a i r m e n t i n s e v e r a l a r e a s , s u c h as w o r k o r school, family r e l a t i o n s , j u d g m e n t , t h i n k i n g , o r m o o d (e.g., depressed m a n avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at s c h o o l ) . A m e r i c a n P s y c h i a t r i c A s s o c i a t i o n , D i a g n o s t i c a n d S t a t i s t i c a l M a n u a l o f M e n t a l Disorders (4 th Ed. 1994) at 32.
1
9 - R E P O R T AND R E C O M M E N D A T I O N
exhibit number (exhibit 2F), and apparently accepting the cited diagnoses. However, as the a u t h o r i t i e s above p r o v i d e , t h e A L l m a y n o t d i s r e g a r d an e x a m i n i n g p s y c h o l o g i s t ' s o p i n i o n without providing reasons for doing so. Here, the A L l did not mention Dr. Truhn's diagnosis o f c o g n i t i v e d i s o r d e r o r his d i a g n o s i s o f m a j o r d e p r e s s i v e d i s o r d e r , r e c u r r e n t , s e v e r e , w i t h o u t psychotic features. N o r did he mention Dr. Truhn's opinion that p l a i n t i f f was limited at the time to a sheltered workshop setting where he could work on issues regarding co-workers and supervisors and work on improving his pace. The A L l may not avoid applicable requirements simply by not mentioning the examining psychologist's opinion and making findings contrary to the opinion. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9 th Cir. 2007) (treating physician's opinion). Id. Defendant agrees that he must provide clear and convincing reasons to reject the uncontradicted opinion o f an examining physician but contends that he is not required to discuss evidence that does not create a material conflict in the record. Defendant argues that Dr. Truhn's diagnoses o f cognitive disorder and major depressive disorder did not create a conflict in the medical evidence. Defendant also contends that Dr. Truhn's opinion that p l a i n t i f f was limited to limited to a sheltered workshop setting was a recommendation, not an imperative, which need not be adopted i f an appropriate alternative is available. He contends that, as such, the workrelated assessment was appropriately addressed by the Appeals Council. Defendant cites the opinion o f agency consultant Frank Lahman, Ph.D., who reviewed Dr. Truhn's report and included it in his summary attached to a Psychiatric Review Technique Form and RFC Assessment - Mental completed by him and dated April 2004. The A L l and Appeals Council
10 - REPORT AND RECOMMENDATION
both stated the RFC found by them was in accordance with the non-examining state agency doctor's opinion. The court is not persuaded by defendant's contentions. Defendant's somewhat convoluted arguments that Dr. Truhn's diagnoses o f cognitive disorder and major depression were i n c o r p o r a t e d into t h e d e t e r m i n e d i m p a i r m e n t s o f b o r d e r l i n e i n t e l l e c t u a l f u n c t i o n i n g a n d b i p o l a r disorder, respectively, and covered by the opinion o f Dr. Lahman, the agency's non-examining consultant, is irrelevant because neither the A L l nor the Appeals Council addressed Dr. Truhn's opinion in this regard so as to reject his opinion. The Commissioner may not rely on a rationale that was not set forth by the A L l o r Appeals Council. See Connett v. Barnhart, 340 F.3d 871, 874 (9 th Cir. 2003) (Ninth Circuit cannot rely on independent findings o f district court but is constrained to review reasons the A L l asserts; error for district court to affirm credibility decision based on evidence A L l did not discuss) (and cases cited). I t seems clear from Dr. Truhn's report that it is his opinion that plaintiff is limited to a sheltered work setting work environment. This issue was not discussed by the A L l o r Appeals Council in any way. The fact that the non-examining agency consulting psychologist included a reference to a sheltered workshop in his summary o f the medical history is not a substitute for the A L l ' s consideration o f the evidence including Dr. Truhn's opinion in this regard and a decision whether to adopt the opinion or reject it. Because neither the A L l nor the Appeals Council discussed these opinions o f Dr. Truhn and gave no reasons to reject these opinions, the Commissioner's decision should be r e v e r s e d o n t h i s issue.
II II
11 - REPORT AND RECOMMENDATION
Plaintiffs Testimony
Plaintiff contends that the A L l erred by rejecting his testimony without providing clear and convincing reasons. He argues that neither the Appeals Council nor the A L l rejected his testimony that he sees spirits and neither addressed his primary symptom o f anxiety. Defendant responds that the evaluation o f p l a i n t i f f s credibility was free o f legal error. In rejecting a claimant's testimony, the Commissioner must perform a two stage analysis. Smolen v. Chater, 80 F .3d 1273, 1281 (9 th Cir. 1996); SSR 96-7p. The first stage is the Cotton test, Cotton v. Bowen, 799 F.2d 1403 (9 th Cir. 1986). Under this test a claimant must produce objective medical evidence o f an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. All that is required o f the claimant is that he p r o d u c e o b j e c t i v e e v i d e n c e o f a n i m p a i r m e n t o r i m p a i r m e n t s a n d s h o w t h a t t h e i m p a i r m e n t or i m p a i r m e n t s c o u l d p r o d u c e s o m e degree o f t h e s y m p t o m s alleged. Under the second part o f the analysis, the Commissioner must analyze the credibility o f a c l a i m a n t ' s t e s t i m o n y r e g a r d i n g t h e s e v e r i t y o f c l a i m a n t ' s s y m p t o m s , e v a l u a t i n g t h e intensity, persistence, and limiting effects o f the claimant's symptoms. See S S R 96-7p. Unless affirmative evidence o f malingering is suggested in the record, the A L l can reject a claimant's symptom testimony regarding the severity o f symptoms "only i f he makes specific findings stating clear and convincing reasons for doing so." Smolen, 80 F.3d at 1283-84; Dodrill v. Shalala, 12 F.3d 9 1 5 , 9 1 8 (9 th Cir. 1993); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1 1 5 5 , 1 1 6 0 (9 th Cir. 2008) (and cases cited). General findings are insufficient; rather, the A L l must identify what testimony is not credible, and what evidence suggests that the testimony is not credible. Reddick
v. C h a t e r , 157 F . 3 d 7 1 5 , 7 2 2 ( 9 th Cir. 1 9 9 8 ) . T h e C o m m i s s i o n e r c a n n o t r e j e c t a c l a i m a n t ' s
12 - REPORT AND RECOMMENDATION
symptom testimony solely because it is not fully corroborated by objective medical findings. C o t t o n , 7 9 9 F . 2 d 1403. In determining a claimant's credibility the C o m m i s s i o n e r may consider, for example: (1) ordinary techniques o f credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other t e s t i m o n y by t h e c l a i m a n t t h a t a p p e a r s less t h a n c a n d i d ; ( 2 ) u n e x p l a i n e d o r inadequately explained failure to seek treatment or to follow a prescribed course o f treatment; and (3) the claimant's daily activities . . . . In evaluating the credibility o f t h e s y m p t o m t e s t i m o n y , t h e A L l m u s t a l s o c o n s i d e r t h e f a c t o r s s e t o u t in S S R 88-13 . . . . Those factors include the claimant's work record and observations o f treating and e x a m i n i n g p h y s i c i a n s a n d o t h e r t h i r d parties regarding, a m o n g o t h e r m a t t e r s , the n a t u r e , o n s e t , d u r a t i o n , a n d f r e q u e n c y o f t h e c l a i m a n t ' s s y m p t o m s ; p r e c i p i t a t i n g a n d a g g r a v a t i n g factors; f u n c t i o n a l r e s t r i c t i o n s c a u s e d by t h e s y m p t o m s ; a n d t h e c l a i m a n t ' s daily activities. Smolen, 80 F.3d at 1284; S S R 96-7p; 20 C.F.R. §§ 404.1529(c); 416.929(c). Here, p l a i n t i f f h a s p r o d u c e d o b j e c t i v e e v i d e n c e o f a n i m p a i r m e n t w h i c h c o u l d p r o d u c e some degree o f the symptoms alleged. There is no evidence o f malingering in the record. T h e A L l f o u n d t h a t , w h i l e p l a i n t i f f has m e d i c a l l y d e t e r m i n a b l e i m p a i r m e n t s w h i c h c o u l d r e a s o n a b l y be e x p e c t e d t o p r o d u c e t h e a l l e g e d s y m p t o m s , h i s s t a t e m e n t s c o n c e r n i n g t h e i n t e n s i t y , p e r s i s t e n c e , a n d l i m i t i n g e f f e c t s o f t h e s y m p t o m s a r e n o t e n t i r e l y c r e d i b l e . (Tr. 2 5 . ) T h e A p p e a l s Council agreed w i t h the A L l ' s findings and supplemented the credibility assessment in its decision. 2 At the hearing, p l a i n t i f f testified that he's had a hard time being a t j o b s in the past "due to, maybe dealing w i t h people around me where I'd e n d up j u s t kind o f walk, walking away." (Tr.
T h e A p p e a l s C o u n c i l e x p u n g e d c e r t a i n e x h i b i t s f r o m p l a i n t i f f s r e c o r d w h i c h the A L l r e l i e d on in his decision. These r e c o r d s belonged to another individual and referenced certain physical limitations. (Tr. 12, see Tr. 24-25.)
2
13 - R E P O R T A N D R E C O M M E N D A T I O N
584.) He testified that he has a problem with hearing voices and sometimes seeing spirits. Plaintiff testified that he feels this has caused him to lose some j o b s ; he'd end up "going like in a blackout type situation I guess," and would end up "somewhere else and kind o f confused or whatever." (Tr. 584.) He stated the spirits he sees are "bear minimal . . . Once or twice a week." (Tr. 586.) He described the spirits he sees as: "some type o f supernatural or something, I don't know how to really describe them. They're kind o f like this is real people but like they're kind o f transparent a little bit." (Tr. 586.) The last time he'd heard voices was a week to a week and oneh a l f before the hearing. Most o f the time he hears music and sometimes he'll hear a whisper calling his name. (Tr. 584-86.) His parole officer knows p l a i n t i f f s situation and is not requiring him to look for work. When plaintiff was in prison, he was put in "the hole," similar to solitary confinement where he was in a cell by himself, for fighting and misbehaving, because o f trouble with inmates and guards; the last time he was in prison, he didn't go to the hole. (Tr. 588.) With his medications, plaintiff still has problems but, for the most part, they work "real good." (Tr. 586.) Plaintiff goes o f f his medication, in part, because he forgets to take it or the spirits are trying to tell him to stop taking them so he can recognize the spirits more; when he's on his meds plaintiff doesn't see them as much and he thinks they get mad. At the time o f the hearing, he was taking his meds; with the help o f his girl friend, he has a pill container and marked calendar which helps him. P l a i n t i f f has lost a j o b in the past because I would j u s t end up, j u s t end up walking o f f for no apparent reason. I think, think it's because it's at the times that I, that I feel that the spirits are trying to communicate with me or they are communicating with me, is w h e n I go in my blackout states because I end up doing, going to do one thing and then all o f a sudden I end up, end up somewhere else, not, not realizing h o w I got there or where, where I was.
14 - REPORT AND RECOMMENDATION
(Tr. 591.) He had not yet had a blackout since he's been released from prison. Plaintiff spends his days at home being a homebody, not doing much. He tries to take care o f the house, such as laundry and dishes. He draws a couple o f hours; he draws for five to ten minutes and then has to leave it and go back because he is not able to focus. He doesn't meet friends outside o f his
house and does not have visitors that come to the house. He isolates himself; when he's around a lot o f people, it's hard to tell sometimes whether the spirits are out there or i f it's someone else, so he gets anxiety at times and feels miserable and panicky for five to ten minutes. When he leaves the house, it's usually with his girlfriend. They go grocery shopping. (Tr. 582-91.)
It appears that the A L l adopted the DOC mental health evaluator's statement that
plaintiffs symptoms o f shadowy visions and auditory hallucinations were accounted for by his environment in the jail rather than a psychotic process. However, the record shows that plaintiff continues to see spirits, even at the time o f the hearing. The Appeals Council acknowledges that plaintiff continues to see spirits. The A L l relied o n p l a i n t i f f s activities o f daily living to discount his testimony, citing plaintiffs ability to handle money, ride his bicycle, attend to basic household tasks, use public transportation, read, and watch television. The Appeals Council noted that plaintiff worked at odd jobs, and displayed '''excellent fathering skills'" at a doctor's appointment when he had his young daughter with him. However, none o f these activities suggest that p l a i n t i f f has the ability to perform competitive work for eight hours a day and they are not inconsistent with disability. See O m v. Astrue, 495 F.3d 625, 639 (9 th Cir. 2007) (and cases cited); Vertigan v. Halter, 260 F .3d 1044, 1050 (9 th Cir. 2001). The Court finds that this reason is not reasonable on this record and is not supported by substantial evidence. 15 - REPORT AND RECOMMENDATION
The A L l and the Appeals Council reference appointment records indicating that plaintiff was oriented, well groomed, attentive, alert, with good eye contact and normal mental status. To the extent that this reason was relied on to discount p l a i n t i f f s testimony, the Court finds it not supported by substantial evidence. As plaintiff points out, other progress n o t e s - s o m e during the same time period-indicate that, while plaintiff may have been attentive and alert, he also was at times fidgety, anxious, angry, tense, irritable, annoyed, and rocking. (Tr. 225, 241, 242, 244, 247,248,250,265,268.) B o t h t h e A L l and t h e A p p e a l s C o u n c i l d i s c o u n t e d p l a i n t i f f s t e s t i m o n y b e c a u s e p l a i n t i f f s symptoms are controlled with medication. A good response to treatment supports an adverse credibility finding. See Crane v. Shalala, 76 F.3d 251, 254 (9 th Cir. 1996); Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9 th Cir. 2008). This reason constitutes a clear and convincing reason which is supported by substantial evidence. The court has found that not all reasons given by the A L l for discrediting p l a i n t i f f s testimony were proper. However, even though not every reason relied on by the A L l to discount a claimant's credibility is upheld on review, the credibility determination will be sustained i f the determination is supported by substantial evidence. Batson v. Commissioner, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9 th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9 th Cir. 2001). On this record, the court finds that the Appeals Council's did not provide sufficient reasons to discount p l a i n t i f f s allegations and its credibility determination is not supported by substantial evidence.
II II
16 - REPORT AND RECOMMENDATION
Step five determination Plaintiff contends that the Commissioner fails to meet the step five burden because, despite accepting the medical expert's testimony that p l a i n t i f f s history shows a marked level o f difficulty m a i n t a i n i n g s o c i a l f u n c t i o n i n g , the A p p e a l s C o u n c i l d i d n o t a d d r e s s the v o c a t i o n a l expert's opinion that even moderate limitation in the ability to deal with a supervisor would preclude employment; and the Appeals Council failed to consider Dr. Truhn's opinion that plaintiff was limited to a sheltered workshop environment. Defendant responds that the ALl's step five determination is supported by substantial evidence. An ALJ may rely on the testimony o f a vocational expert that is elicited with a hypothetical question that sets forth all the limitations o f the claimant. Andrews v. Shalala, 53 F.3d 1035, 1043 (9 th Cir. 1995). The assumptions in the hypothetical question must be supported by substantial evidence. Id. The ALJ may not incorporate limitations or restrictions that are not supported by the record. S S R 96-8p. A hypothetical which fails to include all o f a claimant's limitations does not constitute substantial evidence to support a finding that the claimant can perform j o b s in the national economy. Magallanes, 881 F.2d at 756; Embrey v. Bowen, 849 F.2d 4 1 8 , 4 2 3 (9 th Cir. 1988); Osenbrock v. Apfel, 240 F.3d 1 1 5 7 , 1 1 6 3 (9th Cir. 2001). The medical expert, Dr. John Crossen, testified at the hearing that p l a i n t i f f s problems maintaining social functioning appear to be very prominent; he testified, by history, he would place them as "marked." (Tr. 598.) Dr. Crossen's testimony o f a marked level at the time had to do with isolation more than aggressiveness. The ALJ posed a hypothetical to the vocational expert (VE) in which an individual o f 36 years o f age with a ninth grade education and no past relevant work who is limited to simple,
17 - REPORT AND RECOMMENDATION
routine tasks and instructions, should have no public contact, could have occasional coworker contact by no teamwork, and occasional supervisory c o n t a c t - e n o u g h that the individual would be guided by a supervisor. The VE identified several j o b s the person could perform. Plaintiffs c o u n s e l p o s e d a s e c o n d h y p o t h e t i c a l i n w h i c h the i n d i v i d u a l w a s a r g u m e n t a t i v e w i t h supervisors and coworkers, a limitation seemingly established by Dr. Crossen's testimony that plaintiff would have marked limitations in social functioning, even i f the interaction with the supervisor was only on an occasional basis. The VE responded that her experience is that people have to be able to deal with the supervisor, and "even a moderate limitation in the, with the inability to deal with the supervisor is going to preclude employment." (Tr. 605.) T h e A L l f o u n d t h a t p l a i n t i f f had m a r k e d d i f f i c u l t i e s i n m a i n t a i n i n g s o c i a l f u n c t i o n i n g . (Tr. 22.) The Appeals Council adopted the A L l ' s decision and, remarking that it was not noted in the record, noted the medical expert's testimony and found Dr. Crossen's limitations consistent with the decisional residual functional capacity. (Tr. 13.) In light o f the VE's testimony that certain j o b s were available in response to the ALl's hypothetical, and her testimony that even a moderate limitation in the ability to deal with a supervisor would preclude employment, it is clear that the limitation o f marked difficulties in social functioning, accepted and found by the A L l and adopted by the Appeals Council, was not included in the hypothetical or the RFC ultimately found by the Commissioner. In addition, the court has found that the Commissioner's decision should be reversed because neither the A L l nor the Appeals Council addressed Dr. Truhn's opinion that plaintiff is limited to a sheltered work setting work environment. This limitation was not included in a hypothetical and the V E offered no testimony relating to such a limitation. 18 - REPORT AND RECOMMENDATION
Accordingly, the Commissioner's decision should be reversed based on the step five determination since it is not supported by substantial evidence.
Conclusion
The court has found that the ALJ and the Appeals Council failed to discuss Dr. Truhn's opinions; the ALJ and the Appeals Council did not provide clear and convincing reasons to discount p l a i n t i f f s testimony; and the ALJ and the Appeals Council did not include in the hypothetical all limitations o f plaintiff such that the step five determination is not supported by substantial evidence. O n the record before it, the court finds that a remand is warranted to a d d r e s s these d e f i c i e n c i e s . RECOMMENDATION Based on the foregoing, and pursuant to sentence four o f 42 U.S.C. § 405(g), it is recommended that the decision o f the Commissioner be reversed and remanded for further p r o c e e d i n g s c o n s i s t e n t w i t h this opinion.
This recommendation is n o t an order that is immediately appealable to the Ninth Circuit Court o fAppeals. Any notice o f appeal pursuant to Rule 4 ( a ) ( l ) , Federal Rules o f Appellate
Procedure, should not be filed until entry o f the district court's j u d g m e n t o r appealable order.
Objections to this Report a n d Recommendation, i f a n y , are due by December 7. 2009. I f objections are filed. a n y responses to the objections are due within 10 days, see Federal Rules o f Civil Procedure 72 a n d 6. Failure to timely file objections to any factual determinations o f the
Magistrate Judge will be considered a waiver o f a party's right to de novo consideration o f the
19 - REPORT AND RECOMMENDATION
factual issues and will constitute a waiver o f a party's right to appellate review o f the findings o f fact in an order or j u d g m e n t entered pursuant to the Magistrate Judge's recommendation . DATED thIS , ( )
. !G
d a y o f N o v e m b e r , 2009.
~ M A R K ~~ '
. .... / / ' ~;tS% / /
~~/
"
./ /"
/~
U n i t e d States M a g i s t r a t e J u d g e
20 - REPORT AND R E C O M M E N D A T I O N
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
