Sterner v. Commissioner Social Security Administration, No. 3:2011cv01481 - Document 16 (D. Or. 2012)

Court Description: OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED for an immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 12/10/2012 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SARAH ANNE STERNER, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. TIM WILBORN P.O. Box 370578 Las Vegas, NV 89137 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-290 L. JAMALA EDWARDS Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Case No. 3:11-cv-01481-MA OPINION AND ORDER MARSH, Judge Plaintiff Sarah Anne Sterner seeks judicial review of the final decision of the Commissioner of Social Security denying her applications for a period of disability and disability insurance benefits U.S.C. (DIB) §§ under Title II 401-433, and of the Social Security Act, Supplemental Security Income 42 (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ U. S.C. § 1381-1383f. 405 (g) and This Court has jurisdiction pursuant to 42 § 1383 (c). For the reasons that follow, I remand the decision of the Commissioner. PROCEDURAL AND FACTUAL BACKGROUND On July 11, 2007, plaintiff filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income with a protective applications, 2006. filing date of June 28, 2007. (SSI), In both plaintiff alleges disability beginning August 15, The claims were denied initially and on reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ) . which plaintiff An ALJ held a hearing on October 15, 2009, at appeared with her attorney and testified. A medical expert and a vocational expert also appeared and testified. On November 13, 2009, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review on October 11, 2011. The ALJ's decision therefore became the final decision of the Commissioner for purposes of review. 2 - OPINION AND ORDER Plaintiff alleges disability due to chronic thoracic pain, post-status carbon monoxide poisoning, and an affective disorder. Plaintiff was born on December 5, 1969, and was 36 years old on her alleged disability onset date, and 39 years old on the date of the decision. (GED), Plaintiff has received a general equivalency diploma and has past relevant work as a truck driver, dispatcher, and a facer in a grocery store. a trucking Plaintiff has a history of drug abuse but has been in sustained remission for many years. Plaintiff was hospitalized for seven days due to carbon monoxide poisoning in January of 2004. Since that time, plaintiff has reportedly experienced cognitive problems, especially with her memory and attention. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. is potentially dispositive. at steps one through 416.920. § Bowen v. Each step The claimant bears the burden of proof four, but the burden shifts to the Commissioner at step five to show that the claimant can do other work which exists in the national economy. Soc. Sec. Admin., 574 F.3d 685, 689 Valentine v. (9th Cir. Comm'r 2009); Tackett v. Apfel, 180 F. 3d 1094, 1098 (9th Cir. 1999). The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2011. 3 - OPINION AND ORDER A claimant seeking DIB benefits under Title II must establish 42 disability on or prior to the last date insured. u.s.c. § 416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. See 20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq. At step two, severe the ALJ found that plaintiff had the following impairments: status post carbon monoxide poisoning, affective disorder, and substance abuse disorder in full sustained remission. See 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. The ALJ assessed plaintiff with a residual functional capacity (RFC) to lift no more than 50 pounds occasionally and 25 pounds frequently; can sit stand, or walk for six hours out of an eight hour day with normal breaks; can occasionally stoop and crouch, but can never climb ladders, ropes or scaffolds and cannot work at unprotected heights or around dangerous machinery; is limited to simple one to three step procedures that are routine and repetitive and do not involve frequent changes in duties; and is limited to jobs that have no forced pace or assembly line pace to the work. 4 - OPINION AND ORDER See 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929. At step four, the ALJ found plaintiff unable to perform any past relevant work. See 20 C.F.R. §§ 404.1565, 416.965. Based on the testimony of the VE, determined that experience, and considering residual plaintiff's functional at step five, age, the ALJ education, capacity, jobs exist work in significant numbers in the national economy that plaintiff can perform, See 20 such as hand packager, C.F.R. §§ 404.1560(c), hospital cleaner, and cleaner. 404.1566, 416.960(c), 416.966. Accordingly, the ALJ concluded that plaintiff is not disabled under the meaning of the Act. ISSUES ON REVIEW On appeal to this court, plaintiff contends the ALJ erred by: ( 1) improperly discrediting her evaluating the medical opinions of improperly rejecting the lay testimony; Drs. testimony ( 2) improperly Greene and Johns; of her husband, ( 3) John Stanton. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. § 42 u.s.c. 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 5 - OPINION AND ORDER mind might accept as adequate to support a Valentine, 574 F.3d at 690. conclusion." Id.; The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 Commissioner's decision must be upheld, (9th Cir. 1986). The even if the evidence is susceptible to more than one rational interpretation. Batson v. Comm'r of Soc. (9th Cir. Security Admin., 359 2004); Andrews, 53 F.3d at 1039-40. F.3d 1190, 1193 If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not Commissioner." substitute its judgment for that of the Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). I. Plaintiff's Credibility To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two 20 C.F.R. stages of analysis. stage is a threshold test §§ 404.1529, in which the 416.929. The first claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Smolen v. Chater, 80 F. 3d 1273, 1282 (9th Cir. 1996). At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. 6 - OPINION AND ORDER Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1036. The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the F.3d at 1039; 2002). Thomas v. Barnhart, 278 F.3d 947, did not Tommasetti, arbitrarily discredit the claimant's testimony. ALJ 533 958 (9th Cir. Factors the ALJ may consider when making such credibility determinations claimant's include treatment the objective history, the medical claimant's evidence, the daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Tommasetti, 533 F.3d at 1039. At the hearing, plaintiff testified that she is unable to work due to memory problems and pain from her back and ribs. 92. Tr. Plaintiff testified that she last worked as a truck dispatcher in 2006, and that she left that job because she was forgetting to tell the drivers where to go. Tr. 115. Plaintiff testified that she recently drove four miles without difficulty and has a current driver's license. However, plaintiff stated that she does not like to drive because she has had several accidents from falling asleep while driving or gets lost or confused. Tr. 85. Plaintiff stated that she can walk a block before needing to rest, can sit for 25 minutes, can lift a gallon of milk, and is able to pick something small off the ground, but is unable to squat without falling over. 7 - OPINION AND ORDER Plaintiff testified that she has difficulty holding conversations because she forgets what she is talking about and occasionally slurs her speech. Plaintiff explained that she has difficulty sleeping, and that her sleep patterns are erratic. 107-08. Tr. Plaintiff testified that because of her poor balance, she falls in the shower, and needs help in and out of the tub. Tr. 108. the Plaintiff testified that her husband shopping, housework, laundry and yardwork. does all of Plaintiff stated that she gets distracted when she cooks, and consequently limits herself to warming food the microwave. Tr. 113. Plaintiff submitted a function report in which she provided that she has difficulty sleeping, needs help getting in and out of the bathtub, needs to rest after five minutes of performing chores, has difficulty driving, and that she suffers pain when taking deep breaths. The ALJ concluded that plaintiff's medically determinable impairments can reasonably be expected to produce some symptoms, but that the Plaintiff's statements concerning the intensity, persistence, and limiting effects were not entirely credible. The ALJ did not make a specific finding that Plaintiff was malingering. Therefore, the ALJ was required to justify determination with clear and convincing evidence. F.3d at 1039. the credibility Tommasetti, 533 While the ALJ supplied several reasons to discount plaintiff's testimony, I conclude that they do not amount to clear 8 - OPINION AND ORDER and convincing support to the uphold adverse credibility determination. First, the ALJ rejected plaintiff's excess pain testimony because her back and rib pain were not consistent with the medical evidence. 1 by The ALJ stated that plaintiff's pain was not supported laboratory findings, and that her persistence of pain is inconsistent with the record as a whole. An ALJ may not discredit excess pain testimony simply because it out of proportion to the medical evidence presented. See, e.g., Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990); Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). Where a claimant alleges limitations from severe pain, the ALJ must look beyond the objective medical evidence in order to properly evaluate a claimant's credibility, such as whether the claimant spends a substantial portion of her day engaged in daily physical activities 1 Here, Plaintiff's chronic thoracic pain results from an onthe-job injury in September of 2002, in which plaintiff was pinned between a pallet and a bumper. At that time, plaintiff reported marked tenderness of the chest wall, with significant pain with deep breaths. Tr. 393. A chest x-ray showed no fractures, and plaintiff was diagnosed with a chest contusion. Tr. 397. As of November 21, 2002, plaintiff reported minimal tenderness at T6-7, and but still had tenderness along the Plaintiff returned to light duty, and sternum. Tr. 408. In January of 2003, plaintiff eventually returned to driving. her back pain had increased with warehouse work, reported that and that she still suffered pain in her sternum. As the ALJ noted, imaging in 2007 showed a normal thoracic spine, but there is no imaging of plaintiff's ribs in the record before me. Tr. 28, 322, 409. 9 - OPINION AND ORDER which are of the type that claimant would use in a work setting. Gonzalez, 914 F.2d at 1201. In discounting plaintiff's pain testimony, the ALJ discussed the findings of Jeffery Solomon, D.O. On September 27, 2007, Dr. Solomon performed a physical examination. Dr. Solomon found that plaintiff had good range of motion in the upper extremities, had good motor strength, and that plaintiff could ambulate without assistance. Dr. Solomon reported marked limitations with Tr. 350. plaintiff's lumbar and thoracic range of motion, testing was "somewhat unreliable" behaviors and guarding. In referencing Dr. because of but noted his plaintiff's pain Id. at 350-51. Solomon's evaluation, the ALJ has cited only the lack of corroboration in the medical evidence to discredit plaintiff's excess pain testimony, which is an inadequate reason. See Gonzalez, 914 F.2d at 1201. And, despite stating that plaintiff's persistence of pain is inconsistent with the record as a whole, the ALJ failed to identify any physical activities that plaintiff's performs which are inconsistent with her allegations of pain. Id. To be sure, plaintiff described that she is unable to perform any activities, such as cooking, laundry or housework, due to her pain and memory issues. Thus, the ALJ' s reasons for discounting plaintiff's excess pain testimony are inadequate. Second, the ALJ rejected plaintiff's testimony concerning her depression on the basis that she has not received treatment by a 10 - OPINION AND ORDER A lack of treatment or conservative mental health specialist. treatment may be used to discount a claimant's credibility. e.g., Parra v. Astrue, denied, 552 U.S. 1141 481 F.3d 742, (2008). 751 However, (9th Cir. 2007), in this case, See, cert. plaintiff offered an explanation for her lack of mental health treatment. When asked by the ALJ why she had not sought treatment for her depression, plaintiff responded that she is uninsured. Tr. 103. A lack of funds is an inappropriate basis upon which to discredit a claimant. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Moreover, at the hearing, plaintiff indicated that the primary reasons she is seeking benefits are her memory issues and chronic back pain. Tr. 92. As the depressive symptoms appear mild. been prescribed anti-depressants, ALJ acknowledged, plaintiff's While plaintiff periodically has her treatment record does not reflect that counseling or therapy has been recommended. Thus, based on the record before me, I conclude that plaintiff's lack of mental health treatment is not an appropriate basis upon which to discredit plaintiff. Third, the ALJ discredited plaintiff on the basis that the alleged severity of her cognitive impairments were not supported by the objective medical record. Again, a lack of objective medical evidence, by itself, is not an appropriate measure of plaintiff's credibility. below, Gonzalez, the ALJ' s 914 F. 2d at 1201. As will be discussed evaluation of the medical evidence is without 11 - OPINION AND ORDER adequate support. And, although the ALJ cited reasons beyond the medical evidence, those reasons also are not adequately supported. In the decision, the ALJ cited plaintiff's ability to resume working after her carbon monoxide poisoning incident in 2004, including working as a trucking dispatcher from January to August of 2006, making substantial earnings. Tr. 114-115. While plaintiff's ability to resume work for a period of time seems at first blush demonstrates inconsistent, that the a ALJ's careful examination of the reasoning on this record point is not supported by substantial evidence. Plaintiff does not contend that she was immediately disabled following her carbon monoxide poisoning incident in 2004. Rather, plaintiff's alleged onset date is August 15, 2006, which is after she left the dispatching job due to memory problems and making mistakes. Moreover, Dr. Bodow, who treated plaintiff immediately following her carbon monoxide incident in January of 2004, stated that plaintiff did not appear to be suffering any acute effects of carbon monoxide poisoning at that Tr. time. 443. Dr. Bodow opined, however, that he was concerned about "prolonged effects of a significant exposure." Id. Furthermore, plaintiff contends her symptoms are worsening over time. Tr. 301. Lastly, the ALJ also found plaintiff not credible as to the etiology of her cognitive deficiencies. In making this finding, the ALJ relied upon the testimony of the medical expert Betty J. 12 - OPINION AND ORDER Feir, who questioned whether plaintiff's cognitive difficulties may have been caused by her past methamphetamine carbon poisoning. 2 monoxide This finding abuse also instead of lacks record support. Contrary to Dr. Feir's suggestion, plaintiff's carbon monoxide poisoning incident is well documented in the record. above, Dr. Bod ow noted his concern for a potential As noted long term impact, and he recommended she not resume driving due to potential for central nervous system sequelae. Tr. 443. Moreover, plaintiff was forthright about her past drug abuse with Dr. Shields and Dr. Greene who conducted her cognitive testing, and neither attributed her cognitive difficulties to her past drug use. To be sure, only Dr. Feir, who did not examine plaintiff or listen to her testimony, has questioned whether plaintiff's caused by her past drug use. cognitive deficiencies are There is no dispute that plaintiff has been in sustained remission for many years, and there is no 2 A review of the transcript indicates that Dr. Feir was skeptical about whether plaintiff experienced a carbon monoxide poisoning and whether it could cause cognitive deficits. Dr. Feir testified: Basically what we have here is someone who has allegedly had carbon monoxide poisoning. Since that time, she has been employed, so I don't know whether the carbon monoxide poisoning is having any effect on her now. But she also has had a . . 10-plus years history of meth use, your honor. And it'll be hard for me to know what might be due from carbon monoxide poisoning and what might be due to her long-term drug use that could have affected her possibly cognitively, too. Tr. 54-55. 13 - OPINION AND ORDER evidence in the record that plaintiff is actively using drugs or alcohol, or that she has inconsistently reported to her medical providers about her past drug usage. The ALJ's reasoning is not supported by substantial evidence and thus, the ALJ improperly discredited plaintiff on this basis. In short, "[s]heer disbelief is no substitute for substantial evidence." The ALJ Benecke v. Barnhart, 379 F. 3d 587, 594 (9th Cir. 2004). has supported failed by to provide substantial clear evidence to and convincing discount reasons plaintiff's testimony. II. Medical Evidence. To reject the examining physician, uncontroverted opinion of a treating or the ALJ must present clear and convincing Bayliss v. reasons for doing so. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, legitimate reasons. this Bayliss, burden by providing a conflicting medical evidence, it may be rejected by specific and 427 F.3d at 1216. detailed summary of the facts and stating his own interpretation of that evidence, and making findings. Carmickle, 533 F.3d at 1164. An ALJ can meet Tommasetti, 533 F. 3d at 1041; The weight afforded a non-examining physician's opinion depends upon the degree to which they provide supporting explanations 14 - OPINION AND ORDER for their opinions. 20 C.F.R. § 404.1527(d)(3); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008). A. Cognitive Impairments Two examining physicians evaluated plaintiff for her cognitive impairments, Psy, D, Thomas Brent Shields, Plaintiff argues that Ph.D. and Katherine Greene, the ALJ incorrectly rejected ·the opinion of Dr. Greene relying instead upon Dr. Feir's opinion. I agree. 1. Dr. Shields On October 8, psycho-diagnostic 2007, Dr. evaluation Shields, on conducted a comprehensive behalf of Dr. DDS. Shields conducted a Mini-Mental State Exam (MMSE), finding that plaintiff's immediate auditory memory appeared intact, recall is poor. Low Average credibility assess. ¢ to of but that her remote Dr. Shields estimated plaintiff's intellect in the Average range. plaintiff's Tr. 355. Dr. Shields self-reporting noted was that the to ~difficult Dr. Shields offered the following opinion: On the one hand, her memory complaints appear a bit egregious. On the other hand, if she really did endure such severe carbon monoxide poisoning, it would be difficult to confidently rule-out such cognitive problems during an interview-based assessment such as this. Id. Dr. Shields recommended a neuro-psychological memory and credibility testing. on the MMSE Recall plaintiff a have 15 - OPINION AND ORDER ~very with Dr. Shields also noted that if plaintiff's performance would evaluation, difficult task was time ¢ accurate, remembering instructions. Tr. 356. Dr. Shields diagnosed plaintiff with depressive disorder and a history of substance abuse in sustained full remission. 2. On Psy. D., Dr . Greene December 3, 2008 and May 29, 2009, Katherine Greene, conducted a Neuropsychological Evaluation of plaintiff. Dr. Greene conducted an interview with plaintiff and her husband, and a second interview with plaintiff and plaintiff's mother. Dr. Greene reviewed plaintiff's medical records and administered a battery of tests. with efforts, Dr. Greene noted that plaintiff applied her best no indication malingering, of and therefore that Wechsler Adult considered the test results valid. On testing, Dr. Greene found on the Intelligence Scale IV (WAIS- IV), plaintiff received a full scale IQ of 96, which is Average. On the Boston Naming Test, scored in the fourth percentile, plaintiff or Borderline range. On the Language Fluency (FAS) test, plaintiff performed in the Severely Impaired range, or less than one percent. plaintiff scored in the Average range. Attention and Executive Function On Visual Perception, On testing of plaintiff's (Digit Span, Trail Marking, Wisconsin Card Sorting Test, and Stroop), plaintiff scored between Average and Moderately Impaired depending on the task. On the attention scores and executive 16 - OPINION AND ORDER function testing, plaintiff's indicated a capacity to attend to simple tasks, but her ability to process complex information was poor. Tr. 447. On plaintiff's Memory and Learning, plaintiff scored in the Borderline range on the WRAML-2. Testing showed that plaintiff could repeat information, but was impaired when she was required to recall information. demonstrated that Plaintiff's she was Fine and Gross Severely Impaired Motor testing bilaterally. On Personality testing, plaintiff reported that she is moody and short tempered. Dr. Greene also indicated that plaintiff's self-reported symptoms registered in the severe range of depression. Based on the evaluation, Dr. Greene diagnosed Dementia Due to General Medical Condition, noting that plaintiff's "memory and other cognitive disturbances are due to brain injury from a medical eitology." Tr. 448. Dr. Greene also diagnosed an Adjustment Disorder with Depression and Anxiety, with a rule-out Mood Disorder Due to a Medical Condition, and assigned a Global Assessment of Functioning (GAF) score of 59. Dr. Greene also Id. completed Capacity Assessment (MRFC). a Mental Residual Functional In the MRFC, Dr. Greene indicated that plaintiff suffered marked limitations in 13 of 20 areas, including understanding and memory, sustained concentration and persistence, social interaction, and adaption. /Ill /Ill 17 - OPINION AND ORDER 3. Dr. Feir At the hearing, Dr. Feir testified that she did not understand why Dr. Greene diagnosed dementia, assigned a GAF of 59 which Dr. and noted that Dr. Greene Feir found inconsistent with the high number of marked limitations in the MRFC. Dr. Feir testified that she found Dr. Greene's MRFC inconsistent with the body of Dr. Greene's written report. Dr. Feir also testified that plaintiff's testing with Dr. Shields indicated average to low average memory, which is inconsistent with Dr. Dr. Greene's diagnosis of Dementia. Feir stated that she believed Dr. Greene used an incorrect scale, and that perhaps Dr. Greene's limitations should be moderate instead of marked. B. Analysis The ALJ gave Dr. Greene's opinion that plaintiff suffers marked limitations and diagnosis of dementia very little weight, finding it inconsistent with the objective medical record and the "longitudinal record as a whole." Tr. 33. "some weight" to the opinion of Dr. Feir. plaintiff has some cognitive impairments performing simple one to three step tasks, The ALJ instead gave The ALJ concluded that which limit her to but that plaintiff's cognitive impairments do not render her disabled. Because Dr. Greene's opinion is contradicted by Dr. Shields and Dr. Feir, the ALJ was required to provide specific and legitimate reasons to reject it. 18 - OPINION AND ORDER The Greene's ALJ upon relied Dr. Feir's Feir Dr. of dementia. diagnosis testimony to reject Dr. that the testified dementia diagnosis it was inconsistent with evaluation conducted by Dr. Shields. Dr. Shields did not diagnose dementia, and to the extent that Dr. Shields offered a different diagnosis, substantial evidence supports the ALJ's findings. And, as the ALJ noted, a GAF score of 59 typically indicates moderate symptoms, which the ALJ could find inconsistent with the marked limitations Dr. checked in the MRFC. Greene Even if I would not have found the GAF score inconsistent with the MRFC, it is a rational interpretation, and I Batson, 359 F.3d at 1195. will not second-guess it. However, contrary to the ALJ's conclusion, Dr. Shields and Dr. Greene's assessments were consistent in that both found plaintiff's intellectual functioning remains in the low average to average range, but that plaintiff's memory- particularly her ability to recall information - was poor. Additionally, Dr. Feir's testimony that she did not understand the dementia believing diagnosis that impairments as a reveals plaintiff that suffered Dr. any Feir had significant difficulty cognitive result of her carbon monoxide exposure. 3 3 Dr. As discussed above, Dr. Feir attributed plaintiff's cognitive difficulties to her past drug use. And, when plaintiff responded that she was evaluated by Dr. Greene at the request of To her attorney, Dr. Feir stated "I suspected that.n Tr. 59. the extent the ALJ relied upon this to discount Dr. Greene's evaluation, it was error. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) ("The purpose for which medical reports are 19 - OPINION AND ORDER Greene's report indicated that plaintiff meets the definition of dementia due to a brain injury as it is defined in the DSM-IV-TR. Diagnostic and Statistical Manual of Mental Disorders, 147-151 (4th The DSM-IV-TR provides that ed. Text Revision 2000) (DSM-IV-TR). dementia is characterized by the "development of multiple cognitive deficits that include memory impairment" and (1) a deterioration of language (2) function, (3) failure to recognize or activity despite intact motor ability, identify objects intact despite sensory disturbance in executive function. carefully reviewed Dr. motor impaired ability to execute a an Greene's function, or DSM-IV-TR at 150-51. report, and a (4) Having reviewing the characteristics of dementia as defined in the DSM-IV-TR, I find the ALJ's reliance on Dr. Feir's opinion on this point questionable. When rejecting Dr. Greene's opinion that plaintiff suffered a great number of marked limitations, the ALJ also relied on Dr. Feir's testimony that Dr. Greene's findings were not two or three standard deviations below the mean, that plaintiff would be hospitalized if the marked limitations were accurate, and that the marked limitations in the MRFC were inconsistent with the body of Dr. Greene's report. I find that none of these reasons constitute substantial evidence. An ALJ cannot rely solely upon the testimony of a non-examining physician alone to disregard the opinion of a obtained does not provide a legitimate basis for rejecting them.") . 20 - OPINION AND ORDER treating or examining physician. 831 (9th Cir. Lester v. Chater, 81 F.3d 821, The ALJ must have a corroborating basis, 1995). whether from medical records or otherwise, that sways the weight of Id. the evidence. In this regard, the ALJ failed to cite any reasons beyond Dr. Feir's own interpretation of Dr. Greene's report and unwarranted speculation of plaintiff's cognitive deficiencies to discount Dr. Greene's MRFC. plaintiff's To be sure, despite testifying being unsure whether memory issues from result could monoxide carbon poisoning, Dr. Feir's suggested that plaintiff's difficulties with confusion and distraction actually were "motivational." Dr. did Feir not plaintiff, examine Dr. Greene's and report offer 68. convincing a Dr. Feir's interpretation of Thus, explanation for her opinion. or Tr. it whether translates into marked limitations or moderate limitations in the MRFC simply does not constitute substantial Greene's opinion. evidence to warrant rejection of Dr. Lester, 81 F.3d at 832; Ryan, 528 F.3d at 1201- 02. The ALJ also Dr. rejected Greene's assessment of marked limitations on the basis that the MRFC was inconsistent with the However, record as a whole. specific portions of the the ALJ has failed to articulate record which are inconsistent plaintiff's allegations of severe cognitive deficiencies. with To be sure, plaintiff's activities of daily living and the testimony of 21 - OPINION AND ORDER Mr. Stanton are wholly consistent with plaintiff's allegations of Thus, disability. I conclude that the ALJ' s findings in this regard are inadequately supported. I In summary, conclude that the ALJ has failed to provide specific and legitimate reasons for rejecting Dr. Greene's opinion. While the ALJ appropriately found that Dr. Shields and Dr. Greene offered differing diagnoses of plaintiff, I cannot conclude, on the basis of that reason alone, that the ALJ has provided specific and legitimate reasons for rejecting the bulk of Dr. Greene's opinion. Physical Limitations C. Plaintiff opinion of Dr. submits Johns, the that ALJ erred in discounting the an examining physician who conducted an examination of plaintiff an completed a Medical Source Statement on July 31, 2009. Tr. 455-60. Dr. Johns opined that plaintiff could lift and carry less than 10 pounds occasionally, could stand for less than two hours in an eight hour day, and could sit for less than 30 minutes. plaintiff has Tr. postural 457. Dr. limitations Johns also such that determined she that should never climb, balance, kneel, crouch, crawl or stoop due to poor balance. Also, Dr. Johns determined that plaintiff has manipulative limitations such that she may only occasionally perform reaching, handling, and fingering due to her difficulty with fine motor skills. 22 - OPINION AND ORDER The ALJ noted that Dr. John's limitations indicate less than the full range of sedentary work, 50 John's opinion very Instead, the ALJ determined that plaintiff could little weight. lift and Dr. occasionally pounds and 25 pounds frequently. The Commissioner contends that the ALJ provided specific and legitimate reasons for discounting Dr. Johns' opinion. The ALJ rejected Dr. John's I disagree. opinion because (1) it "exclusively based" on plaintiff's self-reported symptoms, inconsistent with plaintiff's inconsistent with Dr. concerning plaintiff's medical record, credibility (2) was (3) was The ALJ' s doubt Solomon's examination. overall and was does not amount to substantial evidence to reject Dr. Johns' opinion where Dr. Johns did not discredit those reports in his own observations. Ryan, 528 F.3d at 1199-1200; Edlund, 253 F.3d at 1159. The purported inconsistencies between plaintiff's 2009 medical visits and Dr. Johns' substantial evidence. evaluation also are not supported by The medical record cited by the ALJ shows that in May of 2009, plaintiff sought treatment from her primary care provider, Nurse Practitioner Linda M. Picker, for an epidermal cyst. Nurse Picker's treatment notes reflect that plaintiff's muscloskeletal and neurological exam was within normal limits. 466. did Tr. However, a review of other notes indicate that Nurse Picker not feel recommended qualified that plaintiff 23 - OPINION AND ORDER to complete have a full disability physical forms, and and musculo- skeletal exam and neurological exam completed by another provider. Tr. 464. Thus, it appears that Nurse Picker recommended plaintiff receive a more comprehensive physical assessment. Thus, based on a more comprehensive review of plaintiff's 2009 medical records, I cannot conclude that Dr. Johns' evaluation is inconsistent with Nurse Picker's notes. Lastly, the alleged inconsistency between Dr. Solomon's evaluations is not Johns and Dr. supported by substantial evidence sufficient to discredit Dr. Johns' assessment. As discussed above with respect to plaintiff's credibility, Dr. Solomon found marked restrictions with plaintiff's thoracic spine, but noted that his results were unreliable due to plaintiff's complaints of pain. The ALJ failed to provide clear and convincing reasons to discredit plaintiff's excess pain testimony. Accordingly, the results of Dr. Johns and Dr. Solomon indicate that plaintiff does have significant physical limitations. III. Lay Testimony Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence, which the ALJ must take into account. 1113, 1115 (9th Cir. 2009); See Bruce v. Stout v. Astrue, Commissioner, 557 F.3d Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 24 - OPINION AND ORDER The ALJ is required to account for competent lay witness testimony, and if it is rejected, provide germane reasons for doing so. Valentine, 574 F.3d at 694. Plaintiff's husband, John Stanton, testified at the hearing. Mr. Stanton described that plaintiff has had multiple accidents driving, and drives very seldom now. He testified that plaintiff falls down when sitting, and fell down the stairs due to balance problems, Tr. 120-21. things, Mr. Stanton described how plaintiff forgets even after writing them down. Tr. 122. Mr. Stanton testified that plaintiff no longer cooks because she walks away from what she is doing, and that plaintiff gets confused about how much to feed their animals. In this testimony and case, the to provide Tr. 123-24. ALJ failed germane to discuss reasons for Mr. Stanton's rejecting it. Recognizing this error, the Commissioner contends that the error was harmless because Mr. Stanton described limitations similar to those described by plaintiff. The Commissioner submits that even if Mr. Stanton's testimony were fully credited, there is no impact on the ultimate disability determination appropriately rejected plaintiff's testimony. because the ALJ As discussed above, the ALJ failed to provide clear and convincing reasons to reject plaintiff's testimony, and thus the ALJ's reasons are no more valid when applied to Mr. Stanton. See Robbins v. Soc. Sec. Admin., 466 F. 3d 880, 885 (9th Cir. 2006) (failure to discuss lay testimony not 25 - OPINION AND ORDER harmless where ALJ did not make legally sufficient adverse credibility determination). Mr. Stanton corroborated the plaintiff's symptoms, including plaintiff's forgetfulness, difficulties. her loss Fully crediting Mr. of balance, and driving Stanton provides substantial support for plaintiff's description of her symptoms. See Stout, 454 F.3d at 1056; Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). Accordingly, the failure to provide germane reasons for discounting Mr. Stanton's testimony was not inconsequential to the disability determination, and thus was not harmless. Robbins, 466 F.3d at 885; Molina, 674 F.3d at 1116. IV. Remand. After finding the ALJ erred, this court has the discretion to remand for benefits. further proceedings or for immediate Vasquez v. Astrue, 572 F. 3d 586, 593 payment (9th Cir. 2009); Harman v. Apfel, 211 F. 3d 1172, 1178 (9th Cir. 2000). turns on the utility of further proceedings. of The issue A remand for an award of benefits is appropriate where there is no useful purpose to be served by further proceedings or where the record is fully developed. The Ninth Circuit has established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed." Harman, 211 F.3d at 1178. grant an immediate award of benefits when: 26 - OPINION AND ORDER The Court should ( 1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, ( 2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Id. Where it is not clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, the court has discretion whether to credit the evidence. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). As discussed above, the ALJ failed to provide legally sufficient reasons for rejecting plaintiff's testimony concerning the severity and intensity of her cognitive impairments and back and rib pain. The ALJ failed to provide legally sufficient reasons for discounting the medical opinions of Dr. Greene and Dr. Johns. Dr. Greene's evaluation and MRFC demonstrate that plaintiff suffers marked limitations in many areas, and sustained concentration. postural limitations. Dr. importantly, memory, attention Johns described physical and The ALJ also failed to credit the testimony of plaintiff's husband, who corroborated plaintiff's testimony that she suffers severe cognitive impairments. At the hearing, there was testimony from Vocational Expert Shawny McCormack, that if a claimant had the limitations as described by plaintiff, and those limitations were completely credible, there are no jobs in the national economy that the claimant could perform. 27 - OPINION AND ORDER Tr. 134-35. When plaintiff's testimony, Dr. Greene and Dr. Johns' opinions, and the lay testimony is fully credited, it is abundantly clear that plaintiff is disabled within the meaning of the Act. See Benecke, 379 F.3d at 595-96. Because there are no outstanding issues that must be resolved and it is clear from the record that plaintiff is entitled to disability benefits, I reverse the ALJ's decision and remand for an immediate payment of benefits. Id. Because I have remanded for an immediate award of benefits, I do not address plaintiff's remaining issues. CONCLUSION Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED for an immediate calculation and award of benefits. IT IS SO ORDERED. DATED this~ day of DECEMBER, 2012. ~¢.-· 2:~ Malcolm . Marsh United States District Judge 28 - OPINION AND ORDER

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