Courneya v. Colvin, No. 2:2012cv05044 - Document 25 (E.D. Wash. 2013)
Court Description: ORDER Granting (ECF No 16 ) Plaintiff's Motion for Summary Judgment and Denying (ECF No 21 ) Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)
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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 3 4 DAVID S. COURNEYA, No. CV-12-5044-JTR 5 6 Plaintiff, 7 v. 8 9 CAROLYN W. COLVIN, Commissioner of Social Security,1 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 Defendant. 11 12 13 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 14 Nos. 16, 21. Attorney Thomas A. Bothwell represents Plaintiff; Special Assistant 15 United States Attorney Carol A. Hoch represents the Commissioner of Social 16 Security (Defendant). The parties have consented to proceed before a magistrate 17 judge. ECF No. 6. After reviewing the administrative record and the briefs filed 18 by the parties, the court GRANTS Plaintiff’s Motion for Summary Judgment and 19 DENIES Defendant’s Motion for Summary Judgment. JURISDICTION 20 21 On December 24, 2008, Plaintiff filed a Title II application for a period of 22 disability and disability insurance benefits, along with a Title XVI application for 23 supplemental security income, both alleging disability beginning October 7, 2008. 24 Tr. 11. 25 1 26 27 28 Plaintiff reported that he could not work due to blackouts, major As of February 14, 2013, Carolyn W. Colvin succeeded Michael J. Astrue as Acting Commissioner of Social Security. Pursuant to FED. R. CIV. P. 25(d), Commissioner Carolyn W. Colvin is substituted as the Defendant, and this lawsuit proceeds without further action by the parties. 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 1 depression, suicidal ideations, and an affective disorder. Tr. 148. Plaintiff’s claim 2 was denied initially and on reconsideration, and he requested a hearing before an 3 administrative law judge (ALJ). Tr. 69-116. A hearing was held on December 7, 4 2010, at which vocational expert K. Diane Kramer, and Plaintiff, who was 5 represented by counsel, testified. Tr. 36-68; 118. ALJ James W. Sherry presided. 6 Tr. 36. The ALJ denied benefits on January 7, 2011. Tr. 11-23. The instant 7 matter is before this court pursuant to 42 U.S.C. § 405(g). 8 STATEMENT OF FACTS 9 The facts have been presented in the administrative hearing transcript, the 10 ALJ’s decision, and the briefs of the parties and thus, they are only briefly 11 summarized here. At the time of the hearing, Plaintiff was 49 years old, 6’2” tall 12 and weighed 260 pounds. Tr. 42-43. He was divorced and living in a studio 13 apartment with a dog. Tr. 43-44. He completed the twelfth grade, and spent much 14 of his adult life working as a farm hand. Tr. 44; 46. For a brief period, Plaintiff 15 worked in construction. Tr. 47. 16 In 2001, Plaintiff fell off a haystack and injured his ankle and his leg. Tr. 17 51. Plaintiff had surgery on his ankle, but did not have the recommended surgery 18 on his hamstring tendons. Tr. 51. Plaintiff said he “stretched” his hamstring so 19 severely that it detached from the muscles, settled on the back of his knee, and it is 20 “about the size of probably a small volleyball.” Tr. 52. Plaintiff said this causes 21 him significant pain and he can no longer walk properly. Tr. 52. Plaintiff said he 22 has lost his confidence, he cannot focus or concentrate and he has “a very difficult 23 time just getting through a basic day.” Tr. 56. 24 Plaintiff testified that he cannot work because he lacks the physical mobility 25 due to his injuries. Tr. 50. Additionally, Plaintiff said that he felt he could not 26 work because his mental problems caused him to struggle to concentrate and he is 27 concerned he could not be reliable. Tr. 50; 57. Plaintiff said he stopped working 28 in 2008 because his pain was worsening, and he “basically just had a nervous ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 1 breakdown.” Tr. 58. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 16 The ALJ is responsible for determining credibility, resolving conflicts in 17 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 18 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 19 although deference is owed to a reasonable construction of the applicable statutes. 20 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 21 It is the role of the trier of fact, not this court, to resolve conflicts in 22 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 23 rational interpretation, the court may not substitute its judgment for that of the 24 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 25 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 26 still be set aside if the proper legal standards were not applied in weighing the 27 evidence and making the decision. Brawner v. Secretary of Health and Human 28 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 support the administrative findings, or if conflicting evidence exists that will 2 support a finding of either disability or non-disability, the Commissioner’s 3 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 4 Cir. 1987). 5 6 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 8 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 9 through four, the burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 11 burden is met once a claimant establishes that a physical or mental impairment 12 prevents him from engaging in his previous occupation. 13 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 14 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 15 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 16 in the national economy which claimant can perform. Batson v. Commissioner of 17 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 18 adjustment to other work in the national economy, a finding of “disabled” is made. 19 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 20 C.F.R. §§ ALJ’S FINDINGS 20 21 At step one of the sequential evaluation process, the ALJ found Plaintiff has 22 not engaged in substantial gainful activity since October 7, 2008. Tr. 13. At step 23 two, the ALJ found Plaintiff suffered from the severe impairments of morbid 24 obesity; history of dizziness and syncope, intermittent; right ear hearing loss; left 25 hamstring disruption; right ankle/foot pain; major depressive disorder; dysthymia; 26 and alcohol dependence. 27 impairments, alone and in combination, did not meet or medically equal one of the 28 listed impairments. Tr. 15. The ALJ determined that Plaintiff had the residual Tr. 13. At step three, the ALJ found Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 1 functional capacity (“RFC”) in part: 2 To perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except he can lift no more than 20 pounds at a time and frequently lift or carry 10 pounds. He can stand and walk 2 hours out of an 8-hour workday and sit 6 hours out of an 8-hour workday. … He can understand/perform simple, routine and repetitive tasks and occasional decision-making and changes in work setting in a low stress job. He is only capable of superficial contact with the general public and coworkers. 3 4 5 6 7 8 9 Tr. 17. 10 At step four, the ALJ found that Plaintiff is unable to perform any past 11 relevant work. Tr. 21. At step five, the ALJ noted that Plaintiff’s ability to 12 perform work is compromised by “additional limitations.” Tr. 22. The ALJ 13 concluded, based upon the vocational expert’s testimony, that notwithstanding 14 Plaintiff’s additional limitations, an individual of a similar age, education, work 15 experience, and residual functional capacity, could perform the requirements of 16 representative occupations such as final assembler, escort vehicle driver, and 17 surveillance system monitor. 18 disabled as defined by the Social Security Act. Tr. 23. Tr. 22. 19 The ALJ concluded Plaintiff was not ISSUES 20 Plaintiff contends that the ALJ erred by failing to properly assess Plaintiff’s 21 credibility and by failing to properly weigh the medical evidence.2 ECF No. 17 at 22 9. DISCUSSION 23 24 25 26 27 28 A. Credibility Plaintiff contends that the ALJ erred in finding Plaintiff’s testimony was not credible. 2 ECF No. 17 at 15-18. The ALJ is responsible for determining Plaintiff also argued that the ALJ failed to meet his Step 5 burden, but the court need not reach this issue in light of the overall disposition of the case. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 1 credibility. Andrews, 53 F.3d at 1039. Unless affirmative evidence exists 2 indicating that the claimant is malingering, the ALJ's reasons for rejecting the 3 claimant's testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 4 821, 834 (9th Cir. 1996). 5 cogent reasons. 6 "General findings are insufficient; rather, the ALJ must identify what testimony is 7 not credible and what evidence undermines the claimant's complaints." Reddick v. 8 Chater, 157 F.3d 715, 722 (9th Cir. 1998), quoting Lester, 81 F.3d at 834. If 9 objective medical evidence exists of an underlying impairment, the ALJ may not 10 discredit a claimant's testimony as to the severity of symptoms merely because 11 they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 12 F.2d 341, 347-48 (9th Cir. 1991). The ALJ's findings must be supported by specific, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). 13 To determine whether the claimant's testimony regarding the severity of the 14 symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques 15 of credibility evaluation, such as the claimant's reputation for lying, prior 16 inconsistent statements concerning the symptoms, and other testimony by the 17 claimant that appears less than candid; (2) unexplained or inadequately explained 18 failure to seek treatment or to follow a prescribed course of treatment; and (3) the 19 claimant's daily activities. See, e.g., Fair v. Bowen, 885 F.2d 597, 602-04 (9th Cir. 20 1989); Bunnell, 947 F.2d at 346-47. 21 1. 22 First, the ALJ noted Plaintiff had “essentially routine and/or conservative” 23 treatment. Tr. 18. This is a proper factor to consider in determining credibility. 24 See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (ALJ may discount 25 claimant's testimony based on conservative treatment); Tommasetti v. Astrue, 533 26 F.3d 1035, 1040 (9th Cir. 2008) (favorable response to conservative treatment 27 undermines reports of disabling pain). 28 Conservative Treatment However, the record does not support the ALJ’s characterizations that ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 Plaintiff received only conservative treatment. For example, on October 27, 2008, 2 Plaintiff arrived by ambulance to Lourdes Medical Center Hospital because he was 3 planning to shoot himself, jump off a bridge, or crash his car with the intent of 4 killing himself. Tr. 221. He was hospitalized for eleven days. Tr. 287. This 5 hospitalization was Plaintiff’s third psychiatric hospitalization. Tr. 234. Inpatient 6 psychiatric hospitalization in order to prevent imminent suicide is not conservative 7 treatment and, thus, this reason provided by the ALJ is not supported by the record. 8 Cf., Para, 481 F.3d at 751 (“conservative treatment” consisted of over-the-counter 9 pain medication). 10 2. 11 The ALJ also found that Plaintiff had little credibility because the evidence 12 established that his medications “have been relatively effective in controlling [his] 13 symptoms.” Tr. 18. 14 record in which Plaintiff indicated he believed a particular medication was 15 working, he felt “fine” on a particular day, a headache had receded, he experienced 16 “only episodes of depression,” and Plaintiff’s report that he no longer actively 17 wanted to kill himself. See Tr. 18-20.3 Generally, when determining credibility, 18 19 20 21 22 23 24 25 26 27 28 3 Medications effectively controlled symptoms As support for this finding, the ALJ cited instances in the The ALJ noted the following facts: (1) On October 27, 2008, Plaintiff “had only endorsed symptoms of depression for the past month”; (2) “[b]y November 6, 2008, [Plaintiff] reported he felt the medication was helping. His headache was gone, he had less anxiety, he was sleeping better, and he was not having any suicidal thoughts”; (3) November 8, 2008, Plaintiff was described as having a “‘somewhat sad’ affect but that he was also “full range and appropriate”; (4) February 13, 2009, Plaintiff reported he “was beginning to get equalization in his right ear. Although he complained of dizziness, he also stated ‘he thinks he is getting a handle on this’”; ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 an ALJ properly considers whether medication effectively controls the plaintiff’s 2 symptoms. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 3 2006) (impairments that are effectively controlled by medication are not deemed 4 disabling). 5 individual chart notes “in context of the overall diagnostic picture ….” Holohan v. 6 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). "[The fact that] a person who 7 suffers from . . . anxiety[] and depression makes some improvement does not mean 8 that the person's impairments no longer seriously affect her ability to function in a 9 workplace." However, when analyzing mental impairments, the ALJ should read Id. Moreover, “[a] single current examination may not always 10 properly describe an individual's sustained ability to function. It should be viewed 11 as one point in time in the longitudinal picture of an individual impairment.” 12 DeLorme v. Sullivan, 924 F.2d 841, 851 (9th Cir. 1991), quoting SSR 83-15. And, 13 in evaluating whether the claimant satisfies the disability criteria, the ALJ must 14 evaluate the claimant's "ability to work on a sustained basis." 20 C.F.R. § 15 404.1512(a) . "Occasional symptom-free periods – and even the sporadic ability to 16 work – are not inconsistent with disability." Lester, 81 F.3d at 833. 17 Plaintiff’s episodic improvements in his symptoms of depression do not 18 diminish his credibility, but instead reflect the nature of his mental impairment. 19 “[I]t is inherent in psychotic illnesses that periods of remission will occur,” and 20 such remission does not mean that the disability has ceased. Miller v. Heckler, 756 21 F.2d 679, 681 n.2 (8th Cir. 1985) (quoting Dreste v. Heckler, 741 F.2d 224, 226 22 23 24 25 26 27 28 (5) August 2009, Plaintiff reported his antidepressant medication was working; (6) July 19, 2010, notation indicated Plaintiff said he was “doing fine”; (7) August 2010, Plaintiff reported “only episodes of depression and and denied suicide ideation.” See Tr. 18-19. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 n.2 (8th Cir. 1984). “[O]ne characteristic of mental illness is the presence of 2 occasional symptom-free periods." Andler v. Chater, 100 F.3d 1389, 1393 (8th 3 Cir. 1996); see Poulin v. Bowen, 260 U.S. App. D.C. 142, 817 F.2d 865, 875 (D.C. 4 Cir. 1987). 5 and remissions are of uncertain duration and marked by the impending possibility 6 of relapse. Andler, 100 F.3d at 1393. Individuals suffering from chronic mental 7 disorders “commonly have their lives structured to minimize stress and reduce 8 their signs and symptoms.” Andler, 100 F.3d at 1393, quoting 20 C.F.R. Pt. 404, 9 Subp’t P, App. 1 § 12.00(D). As a result, given the episodic nature of a mental 10 illness, the ALJ improperly relied upon Plaintiff’s experience of episodes of 11 depression as a factor that diminished his credibility. The course of mental illness can be “extremely difficult to predict,” 12 Moreover, the ALJ’s characterization that the medication was effective in 13 controlling Plaintiff’s symptoms is not supported by the majority of the record. A 14 careful review of the entire record reveals that over time, Plaintiff’s symptoms both 15 improved and worsened. See, e.g., Tr. 329;4 326;5 507;6 554;7 Tr. 504;8 546;9 16 17 18 19 20 21 22 23 24 25 26 27 28 4 11/25/08: “Patient states that he is still feeling depressed and unmotivated. He has decreased energy … [and] he feels overwhelmed by his situation.” 5 2/20/09: “Patient states that he does not believe that the medication is helping him … he has had intermittent suicidal ideation … his affect was constricted and he appeared depressed.” 6 6/11/09: “Patient states he definitely is better than he has been at times, but he does not feel the way he would like to. He says he does not feel as though has any spark … he feels as though he has nothing to offer anyone .… His affect continues to be restricted and he continues to be at least mildly depressed.” 7 8/13/09: “Client states feeling worse .…” 8 10/15/09: “Patient stated that he was not doing well and he felt that everything was spiraling downward.” ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 9 1 545,10 517. 11 An ALJ may not consider only those portions of the record that favor 2 his or her ultimate conclusion. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th 3 Cir. 1975) (an ALJ is not permitted to reach a conclusion "simply by isolating a 4 specific quantum of supporting evidence"); see also Fiorello v. Heckler, 725 F.2d 5 174, 176 (2d Cir. 1983) (while the ALJ is not obligated to "reconcile explicitly 6 every conflicting shred of medical testimony," he cannot simply selectively choose 7 evidence in the record that supports his conclusions); Whitney v. Schweiker, 695 8 F.2d 784, 788 (7th Cir. 1982) ("[A]n ALJ must weigh all the evidence and may not 9 ignore evidence that suggests an opposite conclusion.") (citation omitted) . 10 While Plaintiff experienced brief improvement in his symptoms, the ALJ As a result, the ALJ’s assertion that 11 failed to view the longitudinal record. 12 Plaintiff’s symptoms were effectively controlled with medication is not supported 13 by the record. 14 3. 15 Finally, the ALJ concluded that Plaintiff’s daily activities undermined his 16 credibility. The ALJ cited several facts related to Plaintiff's activities of daily 17 living and opined that the activities “are not limited to the extent one would expect, 18 given the complaints of disabling symptoms and limitations.” Tr. 20. The ALJ 19 specifically noted that Plaintiff said he worked on his truck, mowed neighbors’ 20 lawns, offered to drive neighbors into town, and he took initial steps to learn to 21 play the banjo. Tr. 19-20. Activities of daily living 22 The record does not support the ALJ's finding that such activities are 23 inconsistent with Plaintiff’s allegations about his symptoms. Notably, the ALJ 24 25 26 27 28 9 11/12/09: “Client feels frustrated, disappointed and depressed … client was crying .…” 10 11/13/09: “Client is still depressed, frustrated and angry.” 11 4/29/10: “His mood is dysthymic … he reports episodes of depression but denies any suicidal ideation.” ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10 1 failed to specify which impairment the cited activities contradict. 2 activities of daily living, the Ninth Circuit "has repeatedly asserted that the mere 3 fact that a plaintiff has carried on certain daily activities … does not in any way 4 detract from her credibility as to her overall disability." Orn v. Astrue, 495 F.3d 5 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 6 2001)). Daily activities may form the basis of an adverse credibility determination 7 if: (1) when the activities contradict the claimant's other testimony, and (2) if the 8 activities of daily living meet "the threshold for transferable work skills." Orn, 495 9 F.3d at 639. The ALJ must make specific findings relating to the transferability of 10 Plaintiff’s daily activities in order to conclude that a claimant's daily activities 11 warrant an adverse credibility determination. Orn, 495 F.3d at 639. 12 Regarding In this case, the ALJ failed to make specific findings that explain how 13 Plaintiff’s daily activities contradict his other testimony. Additionally, the 14 activities cited by the ALJ are minimal. Plaintiff lived in a trailer park, and the act 15 of watering and mowing a neighbor’s lawn,12 would likely require minimal effort. 16 Also, on June 11, 2009, when Plaintiff told Dr. Zimmerman that he watered the 17 lawns for all the trailers, he also reported he “has a lot of pain” while he is walking 18 “and for three or four hours afterwards.” Tr. 507. Significantly, the ALJ failed to 19 make specific findings that these activities meet the threshold for transferable work 20 skills. 21 credibility is not supported by the record. The ALJ’s conclusion that Plaintiff’s daily activities undermine his 22 Because the ALJ’s reasons related to Plaintiff’s credibility are not supported 23 by the evidence, this case must be remanded for a proper determination of 24 credibility. 25 26 27 28 12 It is not clear from the record whether Plaintiff actually mowed the neighbors’ lawn and gave them rides to town. He offered these services, but in response, he was visited by the sheriff who said the neighbors reported Plaintiff was harassing them. Tr. 504. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 11 1 B. Medical Evidence 2 Plaintiff contends that the ALJ erred by giving little weight to the opinions 3 of Laurie Zimmerman, M.D., and Samuel C. Geyer, LMHC. ECF No. 17 at 11-15. 4 Because treating physicians are employed to cure and thus have a greater 5 opportunity to know and observe the patient as an individual, their opinions are 6 given greater weight than the opinions of other physicians. Smolen v. Chater, 80 7 F.3d 1273, 1285 (9th Cir. 1996); Sprague, 812 F.2d at 1230. An ALJ may not 8 reject a treating physician's opinion without providing findings that set forth 9 “specific, legitimate reasons” based upon “substantial evidence in the record." 10 Smolen, 80 F.3df at 1285; Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 11 1989). If the treating physician opinion is uncontroverted, the ALJ’s reasons for 12 rejecting the opinion must be “clear and convincing.” Smolen, 80 F.3d at 1285. 13 Similarly, the opinions of a specialist about medical issues related to his or her area 14 of specialization are given more weight than the opinions of a non-specialist. Id.; 15 citing 20 C.F.R. § 404.1527(d)(5). 16 1. Laurie Zimmerman, M.D. 17 Plaintiff argued that the reasons provided by the ALJ for giving little weight 18 to the opinions from Dr. Zimmerman were not supported by the record. ECF No. 19 17 at 12. Laurie Zimmerman, M.D., Plaintiff’s treating psychiatrist, saw Plaintiff 20 regularly between November 2008, and July 2010. Tr. 326-31; 500-07. 21 On November 29, 2010, Dr. Zimmerman completed a Mental Medical 22 Source Statement form, and assessed Plaintiff with marked13 limitations in his 23 ability to: (1) interact appropriately with the general public; (2) accept instructions 24 and respond appropriately to criticism from supervisors; and (3) maintain socially 25 appropriate behavior and to adhere to basic standards of neatness and cleanliness. 26 Tr. 573. 27 13 28 “Marked” was defined as: “seriously affects ability to perform basic work functions on a regular basis.” Tr. 572. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 12 1 Dr. Zimmerman also assessed Plaintiff with moderate14 limitations in the 2 ability to (1) understand and remember detailed instructions; (2) carry out detailed 3 instructions; (3) maintain attention and concentration for extended periods; (4) 4 work in coordination with or proximity to others without being distracted by them; 5 (5) complete a normal workday and workweek and to perform at a consistent pace 6 without an unreasonable number and length of rest periods; (6) respond 7 appropriately to changes in the work setting; and (7) set realistic goals or make 8 plans independently of others. Tr. 572-74. Dr. Zimmerman added: “Patient has 9 difficulty with social interactions. He is easily angered. His emotions interfere 10 with his ability to problem solve, follow directions, respond to supervision and get 11 along with others.” 12 vocational expert opined that if a hypothetical person suffered from all the 13 limitations as assessed by Dr. Zimmerman, the person would be unable to maintain 14 employment. Tr. 65-66. Tr. 574. During Plaintiff’s administrative hearing, the 15 The ALJ gave two reasons for giving little weight to Dr. Zimmerman’s 16 opinion: (1) the assessments in the check the box form were “sharply” contrasted 17 by “the far less severe symptoms documented in her contemporaneous chart notes” 18 and supported by “several occasions” on which Dr. Zimmerman noted that 19 Plaintiff “made good eye contact, his affect is less constricted than he had been, his 20 mood is better, and his insight and judgment are fair”; and (2) Plaintiff believed his 21 medications were working, but indicated he was frustrated by health issues that 22 “were being taken care of by various providers.” Tr. 21. 23 Contrary to the ALJ’s assertion, Dr. Zimmerman’s chart notes do not 24 contradict the Mental Medical Source Statement. For example, chart notes reflect 25 Plaintiff’s problems with anger and irritability, his frustration, his problems 26 communicating with other people, his loneliness and poor hygiene, and his medical 27 28 14 “Moderate” was defined as: “functional work impairment between “mild” and “marked” limitation.” Tr. 572. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 13 1 problems. See Tr. 326-31; 500-06. As analyzed extensively supra, the ALJ’s 2 selective choice of chart entries that reflect temporary improvement in Plaintiff’s 3 symptoms does not constitute substantial evidence, nor reflect the record as a 4 whole. 5 Additionally, the ALJ gave “great weight” to the opinions about Plaintiff’s 6 mental impairments from non-examining physicians Eugene Kester, M.D., and 7 psychologist Jerry Gardner, Ph.D. Tr. 20. However, “the contrary opinion of a 8 non-examining medical expert does not alone constitute a specific, legitimate 9 reason for rejecting a treating or examining physician's opinion.” Tonapetyan v. 10 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001), citing Magallanes, 881 F.2d at 752; 11 see also Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) ("The 12 nonexamining physicians' conclusion, with nothing more, does not constitute 13 substantial evidence, particularly in view of the conflicting observations, opinions, 14 and conclusions of an examining physician.").15 15 16 Dr. Zimmerman’s opinion was not supported by substantial evidence in the record. 2. Samuel C. Geyer, LMHC 17 Plaintiff argues that the ALJ’s conclusion that Mr. Geyer’s opinion 18 conflicted with other evidence was not supported by the record. ECF No. 17 at 14. In sum, the ALJ’s rejection of 19 20 15 “That a person who suffers from severe panic attacks, anxiety, and 21 depression makes some improvement does not mean that the person's impairments 22 no longer seriously affect her ability to function in a workplace.” Holohan, 246 23 F.3d at 1205, citing Kellough v. Heckler, 785 F.2d 1147, 1153 (4th Cir. 1986): 24 25 26 27 28 “Feels well” and “normal activity” must be read in context; the claimant has established that she suffered a severe cardiac impairment in 1975. A note entered in November 1975, just one month before she was hospitalized for open heart surgery, also stated that she “feels well.” Kellough testified without contradiction that her “normal activity” following her surgery was very limited. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 14 1 Plaintiff also points out that ALJ rejected the opinion in part because it was a one- 2 time examination, yet the ALJ gave “great weight” to the opinions from two 3 physicians who never examined Plaintiff. ECF No. 17 at 14-15. 4 The ALJ indicated that he gave little weight to Mr. Geyer’s opinions set 5 forth in the Psychological/Psychiatric Evaluation completed on October 8, 2009. 6 Tr. 21. The ALJ noted that while Mr. Geyer was not an acceptable medical 7 source, nevertheless, his observations were considered. Tr. 21. However, the ALJ 8 found Mr. Geyer’s opinions were not entitled to any significant weight because the 9 opinions were: (1) “not supported by the record as a whole”; (2) based upon a one- 10 time examination; (3) based primarily upon Plaintiff’s discredited subjective 11 claims; and (4) “not well supported by clinical or laboratory findings”; and (5) “are 12 inconsistent with the narrative reports.” Tr. 21. 13 Mr. Geyer examined Plaintiff on October 8, 2009, and diagnosed Plaintiff 14 with major depressive disorder, recurrent; PTSD; and generalized anxiety. Tr. 463. 15 Mr. Geyer assessed Plaintiff with seven marked16 impairments in his ability to: (1) 16 understand, remember and follow complex (more than two step) instructions; (2) 17 perform routine tasks; (3) relate appropriately to co-workers and supervisors; (4) 18 interact appropriately in public contacts; (5) respond appropriately to and tolerate 19 the pressures and expectations of a normal work setting; (6) care for himself, 20 including personal hygiene and appearance; and (7) maintain appropriate behavior 21 in a work setting. Tr. 464. Mr. Geyer observed, “it appears that David has the 22 desire to return to work but at this time his symptoms of depression, anxiety and 23 trauma appear to be overwhelming him. Mental Health treatment is likely to 24 reduce his symptoms.” Tr. 465. 25 In evaluating the evidence, the ALJ should give more weight to the opinion 26 of an acceptable medical source than that of an "other source." 20 C.F.R. §§ 27 28 16 “Marked” was defined as “very significant interference.” Tr. 464. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 15 1 404.1527, 416.927. However, the ALJ is required to "consider observations by 2 non-medical sources as to how an impairment affects a claimant's ability to work." 3 Sprague, 812 F.2d at 1232. An ALJ must give reasons germane to "other source" 4 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). 5 In determining the weight to give an opinion from an “unacceptable” source, the 6 ALJ considers: the length of time the source has known the claimant and the 7 number of times and frequency that the source has seen the claimant; the 8 consistency of the source's opinion with other evidence in the record; the relevance 9 of the source's opinion; the quality of the source's explanation of his opinion; and 10 the source's training and expertise. SSR 06-03p. Moreover, a medical opinion 11 may be rejected by the ALJ if it is conclusory, contains inconsistencies, or is 12 inadequately supported. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir. 2009); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). It is 14 appropriate to discount lay testimony if it conflicts with medical evidence. Vincent 15 v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). 16 In this case, the ALJ’s reasons for discounting Mr. Geyer’s opinions can be 17 grouped into three broad categories: (1) the opinions were “not supported by the 18 record as a whole”; (2) the opinions were “not well supported by clinical or 19 laboratory findings”; and (3) the opinions were “inconsistent with the narrative 20 reports.” 21 examples explaining this conclusion. 22 opinion evidence, the ALJ should provide “a detailed and thorough summary of the 23 facts and conflicting clinical evidence, stating his interpretation thereof, and 24 making findings.” Reddick, 157 F.3d at 725. The ALJ must do more than merely 25 state his conclusions: "[h]e must set forth his own interpretations and explain why 26 they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 27 418, 421-22 (9th Cir. 1988)). The ALJ must explain the weight assigned to “other” 28 sources to the extent that a claimant or subsequent reviewer may follow the ALJ's Tr. 21. The ALJ provided no supporting citation, explanation, or When providing reasons for rejecting ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 16 1 reasoning. SSR 06-03p. 2 In this case, the ALJ failed to provide his interpretation of the record as 3 compared with the report from Mr. Geyer. The ALJ failed to provide specific 4 analysis and details supporting his rejection of the opinion. In the absence of such 5 reasons, the court is unable to follow the ALJ’s reasoning. 6 Additionally, the ALJ indicated that Mr. Geyer’s assessment deserved no 7 weight because it was based primarily upon Plaintiff’s discredited subjective 8 claims. Tr. 21. A physician's opinion may be rejected if it is based on a claimant's 9 subjective complaints which were properly discounted. Tonapetyan, 242 F.3d at 10 1149. However, in this case, the ALJ’s determination of Plaintiff’s credibility 11 requires remand. As a result, this reason is invalid. 12 Finally, the ALJ found Mr. Geyer’s opinions were not entitled to any 13 significant weight because his opinions were based upon a one-time examination. 14 While length of time of the treating relationship is an appropriate factor to consider 15 in weighing an opinion,17 reliance upon this factor is untenable in light of the 16 “great weight” the ALJ provided to the non-examining opinions from Drrs. Kester 17 and Gardner (Tr. 20). 18 more weight than a non-examining physician’s opinion. 19 In sum, the ALJ’s rejection of Mr. Geyer’s Psychological/Psychiatric evaluation 20 lacked proper support. The ALJ’s reasons were not specific, valid, nor germane 21 and, thus, the ALJ must reweigh Mr. Geyer’s analysis on remand. 22 23 An examining physician’s opinion is generally entitled to Pitze, 908 F.2d at 506. CONCLUSION The court concludes the ALJ's decision is not supported by substantial 24 evidence and is based on legal error. 25 Plaintiff’s credibility and provide valid reasons supported by the record in 26 analyzing Plaintiff’s credibility. Additionally, on remand the ALJ shall reconsider 27 the medical opinions of Dr. Zimmerman and Mr. Geyser and provide proper 28 17 On remand, the ALJ shall reconsider S.S.R. 06-03P. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 17 1 reasons for the weight assigned to the opinions. Accordingly, 2 IT IS ORDERED: 3 1. Plaintiff's Motion for Summary Judgment, ECF No. 16, is 4 GRANTED. The matter is remanded to the Commissioner for additional 5 proceedings pursuant to sentence four 42 U.S.C. 405(g). 6 7 2. Defendant's Motion for Summary Judgment, ECF No. 21, is DENIED. 8 3. 9 The District Court Executive is directed to file this Order and provide a copy 10 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 11 the file shall be CLOSED. 12 An application for attorney fees may be filed by separate motion. DATED November 12, 2013. 13 14 15 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 18
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