Huxel v. Colvin (previously Astrue), No. 2:2012cv05135 - Document 19 (E.D. Wash. 2014)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT granting ECF No. 15 and denying ECF No. 17 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 9 10 11 KENT HUXEL, 12 No. 4:12-CV-05135-JTR Plaintiff, 13 v. 14 CAROLYN W. COLVIN, 15 Commissioner of Social Security, 16 Defendant. 17 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 18 19 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 20 No. 15, 17. Attorney D. James Tree represents Kent Huxel (Plaintiff); Special 21 Assistant United States Attorney Jeffrey E. Staples represents the Commissioner of 22 Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 24 filed by the parties, the court GRANTS Plaintiff’s Motion for Summary Judgment 25 and DENIES Defendant’s Motion for Summary Judgment. 26 JURISDICTION 27 Plaintiff filed a prior application for Supplemental Security Income on 28 February 2, 2005, alleging disability beginning on May 10, 2002. Tr. 14. The ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 1 claim was denied initially and on reconsideration, and the case was eventually 2 heard by Administrative Law Judge Riley J. Atkins. Tr. 14. On June 18, 2008, 3 ALJ Atkins found Plaintiff was not disabled, the Appeals Council affirmed the 4 decision and Plaintiff did not appeal. Tr. 14; 78-87. 5 On February 19, 2009, Plaintiff filed a second application for Social Security 6 Supplemental Income, alleging disability beginning June 19, 2008. Tr. 14; 168. 7 Plaintiff’s claim was denied initially and on reconsideration, and he requested a 8 hearing before an administrative law judge (ALJ). Tr. 14; 91-163. A hearing was 9 held on April 8, 2011, in Portland, Oregon, and ALJ Riley J. Atkins again 10 presided. Tr. 31. At the hearing, Plaintiff, who was represented by counsel, 11 appeared and testified. Tr. 31-43. Vocational expert Gary Jasky was also present 12 at the hearing, but the ALJ did not allow him to testify. Tr. 42. The ALJ denied 13 benefits on April 21, 2011. Tr. 14-24. The Appeals Council denied review. Tr. 1- 14 3. The instant matter is before this court pursuant to 42 U.S.C. § 405(g). 15 STATEMENT OF THE CASE 16 The facts of the case are set forth in detail in the transcript of proceedings 17 and are briefly summarized here. At the time of the hearing, Plaintiff was 30 years 18 old and lived with his mother in Dallasport, Washington. Tr. 33-34; 168. Plaintiff 19 graduated from high school and completed a certification program at the Business 20 Computer Training Institute in Vancouver. Tr. 50. 21 Plaintiff’s past work includes data entry, sorting cherries, working as a proof 22 operator processing checks, and he started a small business that consisted of 23 maintaining several gumball machines at various locations. Tr. 50-52; 68. 24 Plaintiff testified that a normal day consists of getting dressed, eating, 25 playing computer games, watching television and running errands. Tr. 39-40. 26 Plaintiff also testified that he spends four to five hours per day on the computer. 27 Tr. 35. He commented that he gets angry at the computer if it does not work 28 properly, and he gets “combative … towards the peripherals of the computer. I’ve ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 1 damaged a couple of mice, beyond repair and I’ve also damaged a CD drive.” Tr. 2 35. 3 Plaintiff described himself as an “introvert” and “paranoid in regards to the 4 potential for a social pretrial.” Tr. 36. Plaintiff explained that this means: “I 5 expect people to betray me, to find something about me that they can take 6 advantage of, so they can cause harm to me for their selfish benefit.” Tr. 36. 7 Plaintiff said he bathes once a week, despite the fact his counselor has told him he 8 needs to bathe more frequently. Tr. 37. 9 In describing his social interactions, Plaintiff acknowledged that people 10 might perceive his comments as inappropriate, and in order to avoid that, he said 11 he will try to “pass as many comments as possible through various what I call 12 social filters in my brain just to make sure that it[’]s socially acceptable.” Tr. 38. 13 Plaintiff said he does not have any friends and he does not socialize outside his 14 family. Tr. 38. 15 Plaintiff testified that he attends counseling appointments every other week, 16 and he sees the doctor twice a year. Tr. 34. After Plaintiff’s testimony at the 17 hearing, counsel asked the ALJ if he could question the vocational expert. Tr. 42. 18 The ALJ responded, “No, there’s no reason to call him.” Tr. 42. 19 20 21 22 23 24 25 26 27 28 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. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 2 3 4 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). 5 The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 8 although deference is owed to a reasonable construction of the applicable statutes. 9 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 10 It is the role of the trier of fact, not this court, to resolve conflicts in 11 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 12 rational interpretation, the court may not substitute its judgment for that of the 13 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 14 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 15 still be set aside if the proper legal standards were not applied in weighing the 16 evidence and making the decision. Brawner v. Secretary of Health and Human 17 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 18 support the administrative findings, or if conflicting evidence exists that will 19 support a finding of either disability or non-disability, the Commissioner’s 20 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 21 Cir. 1987). 22 23 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 25 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 26 through four, the burden of proof rests upon the claimant to establish a prima facie 27 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 20 C.F.R. §§ 404.1520(a), 1 burden is met once a claimant establishes that a physical or mental impairment 2 prevents him from engaging in his previous occupation. 3 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 4 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 5 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 6 in the national economy which claimant can perform. Batson v. Commissioner of 7 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 8 adjustment to other work in the national economy, a finding of “disabled” is made. 9 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 10 20 C.F.R. §§ ADMINISTRATIVE DECISION 11 As a preliminary issue, the ALJ noted that the doctrine of res judicata 12 applies to years related to Plaintiff’s prior denial of benefits, and a continuing 13 presumption of non-disability exists in the current application for benefits. Tr. 14. 14 At step one, ALJ Atkins found that Plaintiff had not engaged in substantial 15 gainful activity since February 19, 2009. Tr. 16. At step two, he found Plaintiff 16 had the severe impairments of mild back pain, depression, and personality 17 disorder. Tr. 17. At step three, the ALJ determined that Plaintiff does not have 18 an impairment or combination of impairments that meets or medically equals one 19 of the listed impairments in 20 C.F.R., Subpart P, Appendix 1 (20 C.F.R. §§ 20 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Tr. 17. The 21 ALJ found the record does not establish Plaintiff’s impairments have changed 22 since the 2008 claim disposition. Tr. 17. 23 24 25 26 27 28 The ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to perform medium work with the following limitations: He is limited to working alone, rather than part of a team. He is able to engage in brief, social interactions with his coworkers and supervisors. He also is restricted from work requiring interaction with the general public and is precluded from performing work in proximity to minor children. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 1 Tr. 18. The ALJ concluded that Plaintiff’s additional limitations had little or no 2 effect on the occupational base of unskilled medium work. Tr. 24. At step four, 3 the ALJ found that Plaintiff could perform past relevant work as a data entry clerk 4 and proof operator. Tr. 23. At step five, the ALJ concluded that notwithstanding 5 Plaintiff’s ability to perform past work, considering his age, education, work 6 experience, and residual functional capacity, additional jobs exist in significant 7 numbers in the national economy that Plaintiff can perform, such as hand 8 packager, janitor, and small parts assembler. Tr. 23-24. The ALJ concluded that 9 Plaintiff was not disabled as defined by the Social Security Act. Tr. 24. 10 ISSUES 11 The question presented is whether substantial evidence exists to support the 12 ALJ's decision denying benefits and, if so, whether that decision is based on proper 13 legal standards. Plaintiff contends that the ALJ erred by (1) rejecting medical 14 evidence that established changes in Plaintiff’s condition since his last filing; (2) 15 finding Plaintiff had little credibility; (3) preventing counsel from examining the 16 vocational expert; and (4) finding Plaintiff could perform past relevant work when 17 Plaintiff’s previous work did not qualify as substantial gainful activity. ECF No. 18 15 at 7. 19 20 DISCUSSION “The principles of res judicata apply to administrative decisions." Chavez v. 21 Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Under Chavez, a final denial of 22 disability benefits gives rise to a continuing presumption of non-disability; this 23 presumption applies to a claimant's subsequent applications for benefits. Id.; see 24 also Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) ("An ALJ's finding that a 25 claimant is not disabled creates a presumption that the claimant continued to be 26 able to work after that date."); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 27 1985); 20 C.F.R. § 404.957(c)(1). A claimant can overcome this presumption by 28 proving "'changed circumstances' that indicate a greater disability." Chavez, 844 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 F.2d at 693; see also Social Security Acquiescence Ruling 97-4(9)(“SSAR 97-4”).1 2 Changes in age category, education, work, or medical or psychiatric condition can 3 all qualify as "changed circumstances" sufficient to rebut the presumption. SSAR 4 97-4(9); Lester, 81 F.3d at 827-28; Chavez, 844 F.2d at 693. 5 A. 6 Medical Opinions Plaintiff contends that the ALJ erred by finding he had not established a 7 change in circumstances since his 2008 RFC. ECF No. 15 at 8. Plaintiff argues 8 that the opinions from Joe Rinella, D.O., Kimberly Humann, M.D., Kari Heistand, 9 M.D., and Candy Didier, LMHP, all establish his condition deteriorated, and the 10 11 opinions were improperly rejected by the ALJ. ECF No. 15 at 10-11. As a general rule, more weight should be given to the opinion of a treating 12 source than to the opinion of doctors who do not treat the claimant. Lester, 81 F.3d 13 at 830. Where the treating doctor's opinion is not contradicted by another doctor, it 14 may be rejected only for "clear and convincing" reasons. Id. Where the treating 15 doctor's opinion is contradicted by another doctor, the ALJ may not reject this 16 opinion without providing "specific and legitimate reasons" supported by 17 substantial evidence in the record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 18 1983). 19 1. Family Practitioner Joe Rinella, D.O. 20 Plaintiff contends that Dr. Rinella’s evaluation established a change in 21 Plaintiff’s circumstances. Plaintiff argues that Dr. Rinella’s conclusion 22 “psychiatric issues were prominent and would probably keep him [from] holding 23 down gainful employment” was evidence that Plaintiff’s condition had deteriorated 24 and thus he was disabled. ECF No. 15 at 9. Defendant responds that Dr. Rinella’s 25 statements indicate his belief he was not qualified to offer an opinion about the 26 limiting effects of Plaintiff’s mental impairments, and thus his opinions were 27 properly rejected. ECF No. 17 at 6. 28 1 http://www.socialsecurity.gov/OP_Home/rulings/ar/09/AR97-04-ar-09.html ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 On August 3, 2009, Dr. Rinella completed a Physical Evaluation form. Tr. 2 414-17. Dr. Rinella opined that Plaintiff’s back pain would likely cause between 3 mild and moderate interference with work based activities. Tr. 416. Dr. Rinella 4 concluded Plaintiff could perform medium work. Tr. 416. He noted, “I expect 5 that psychiatric issues are more of a [hindrance ] than physical issues.” Tr. 417. 6 On June 28, 2010, Dr. Rinella completed a second Physical Evaluation form. 7 Tr. 406-09. In this visit, Dr. Rinella rated Plaintiff’s low back pain as posing mild 8 to moderate interference with Plaintiff’s ability to work, and his social 9 “phobia/depression” as posing moderate interference with Plaintiff’s ability to 10 work. Tr. 408. Dr. Rinella rated Plaintiff’s overall work level as light to medium. 11 Tr. 408. 12 Dr. Rinella offered several comments related to Plaintiff’s mental 13 impairments. For example, Dr. Rinella commented that the treatment he 14 recommended to improve Plaintiff’s employability is continued psychiatric 15 treatment, “probably [a] lifelong need (?).” Tr. 409 (punctuation in original). 16 Also, Dr. Rinella opined in both the form and treatment notes: 17 18 19 20 21 22 23 24 25 26 I suspect that psychiatric issues are much more of a hinderance [sic] than physical limitation. … [h]is physical disability is minimal but the mental illness is a limiting factor… … His psychiatric issues seem prominent and would probably keep him from holding down gainful employment. I am not qualified to adequately give prognostic information about these issues but I do recommend continued care by psychiatry and counseling. 27 28 Tr. 409-10; 413. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 While the ALJ failed to provide an explicit reason for rejecting Dr. Rinella’s 2 opinion, the context implies it was because Dr. Rinella did not specialize in mental 3 health. Dr. Rinella, Plaintiff’s treating physician, is an osteopathic physician, and 4 his opinion regarding the severity of Plaintiff’s mental health impairments was 5 outside his area of expertise. While an ALJ may consider a doctor's area of 6 expertise in determining the weight a doctor's opinion should be given, the ALJ 7 may not reject a doctor's opinion regarding medical limitations solely on the 8 grounds they are outside the doctor's area of expertise. See 20 C.F.R. § 9 404.1527(c)(2)(ii). The SSA regulations provide that a treating doctor’s opinion 10 will be considered, even if the subject of the opinion is outside the doctor’s area of 11 expertise, and it is entitled to greater weight than the opinion from an examining 12 source: 13 14 15 16 17 18 19 20 For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. § 404.1527(c)(2)(ii). The ALJ’s opinion indicates that Dr. Rinella “noted he was not qualified to 21 adequately give prognostic information about this issue.” Tr. 21. The ALJ did not 22 provide any analysis or explanation about Dr. Rinella’s observations of Plaintiff’s 23 mental impairments. The ALJ concluded that Dr. Rinella’s opinions regarding 24 Plaintiff’s “physical conditions are generally consistent with the record and are 25 given weight.” Tr. 21. The ALJ provided no conclusion related to the weight he 26 gave Dr. Rinella’s opinions about Plaintiff’s mental limitations. 27 28 In Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987), the Ninth Circuit recognized “it is well established that primary care physicians (those in family or ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 9 1 general practice) ‘identify and treat the majority of American’s psychiatric 2 disorders.’” Sprague, 812 at 1232, quoting C. Tracy Orleans, Ph.D., Linda K. 3 George, Ph.D., Jeffrey L. Houpt, M.D., and H. Keith H. Brodie, M.D., How 4 Primary Care Physicians Treat Psychiatric Disorders: A National Survey of 5 Family Practitioners, 142: 1 Am. J. Psychiatry 52 (Jan. 1985). As a result, Dr. Rinella’s opinion regarding the severity of Plaintiff’s mental 6 7 limitations is entitled to greater weight than the opinions of examining and non- 8 examining physicians. It appears that the ALJ gave little or no weight to Dr. 9 Rinella’s opinion about Plaintiff’s mental impairments, and improperly gave “great 10 weight” to one-time examiner Tom Dooley, PsyD. Tr. 22. Similarly, the ALJ 11 improperly gave more weight to the opinions of the State agency psychological 12 consultants who never examined Plaintiff than to Dr. Rinella’s opinion. Tr. 23. 13 While the ALJ opinion fails to clearly define the weight he gave Dr. 14 Rinella’s opinions related to Plaintiff’s mental limitations, it appears that the ALJ 15 rejected these opinions based on Dr. Rinella’s assertion he was not qualified to 16 provide “prognostic” information. Tr. 21. Considering the record and present 17 circumstances, the ALJ erred by failing to consider and give weight to Dr. 18 Rinella’s opinions that Plaintiff’s mental limitations would likely prevent him from 19 sustaining employment. As a result, remand is required for reconsideration of Dr. 20 Rinella’s opinion. 21 2. 22 Plaintiff argues that the respective diagnoses, GAF scores and treatment 23 notes from Drs. Humann and Heistand reveal Plaintiff’s condition deteriorated 24 after his 2008 decision, and the ALJ erred by rejecting these opinions. ECF No. 15 25 at 11. 26 Psychiatrists Kimberly Humann, M.D. and Kari Heistand, M.D. On November 17, 2008, Kimberly Humann, M.D., examined Plaintiff. Tr. 27 308-310. Dr. Humann noted that Plaintiff’s therapists reported he had exhibited 28 better grooming and was more positive and engaging in therapeutic work. Tr. 308. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10 1 Dr. Humann also noted Plaintiff’s speech was abnormally slow and minimally 2 spontaneous, and his affect was congruent and constricted. Tr. 308. Dr. Humann 3 observed that Plaintiff smiled more easily and appropriately than in the past, his 4 judgment was fair, but he did “not have good insight into his own role in his 5 problems.” Tr. 308. Dr. Humann assessed Plaintiff with a GAF score of 50. Tr. 6 310. 7 On February 12, 2009, as part of a medication management visit, Dr. 8 Humann charted that Plaintiff’s “speech rate was slow” and “minimally 9 spontaneous” and his “cognitive functions appeared to be at baseline.” Tr. 322-23. 10 Dr. Humann diagnosed Plaintiff with major depressive disorder, recurrent, 11 episodic-severe, and with an unspecified personality disorder. Tr. 323. Dr. 12 Humann assigned Plaintiff a GAF of 50, and noted “[p]atient continues to be 13 somewhat stagnant due to not much activity and victim mentality.” Tr. 323-24. 14 Three months later, on May 7, 2009, Dr. Humann again noted Plaintiff “continues 15 to be somewhat stagnant due to not much activity and victim mentality,” and on 16 this visit lowered Plaintiff’s GAF score to 48. Tr. 373. 17 Dr. Heistand examined Plaintiff on May 10, 2010, and June 21, 2010. Tr. 18 447-55. In May, Dr. Heistand noted Plaintiff’s speech was somewhat slow, but he 19 exhibited “good coherence” and his thought process was “still a bit vague at times 20 but improved,” he showed “no sign of formal thought disorder,” his affect was 21 “dysphoric but does smile at times, constricted.” Tr. 452. The following month, 22 Dr. Heistand noted that Plaintiff’s thought process “continued to be a bit vague at 23 times but [he shows] no sign of formal thought disorder” and his affect seemed 24 “constricted,” but was “a bit brighter than [at the] the last visit.” Tr. 448. The 25 chart notes from both visits reveal diagnoses of major depressive disorder, 26 recurrent with episodes that are severe, and unspecified personality disorder. Tr. 27 448-49; 452-54. Dr. Heistand assigned Plaintiff a GAF score of 47 in May, and 28 the following month lowered the GAF to 45, evidencing a decline in Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 11 1 functioning. Tr. 448-49; 452-54. 2 The ALJ gave these opinions limited weight with a summary conclusion: 3 There is little support in the record for Dr. Humann and Dr. Heistrand’s GAF ratings for the claimant. Although their reports do contain statements suggesting the claimant’s reported mood and affect were atypical, these GAF scores are unsupported and contradicted by the record as a whole, the claimant’s actual activities, and their own treatment records. 4 5 6 7 8 9 Tr. 22. When providing reasons for rejecting opinion evidence, an ALJ should 10 provide “a detailed and thorough summary of the facts and conflicting clinical 11 evidence, stating his interpretation thereof, and making findings.” Reddick, 157 12 F.3d at 725. The ALJ must do more than merely state conclusions, but instead 13 must: “set forth his own interpretations and explain why they, rather than the 14 doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 15 1988)). For example, it is insufficient for an ALJ to reject the opinion of a treating 16 physician by merely stating, without more, that it is inconsistent with other 17 evidence in the record. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). 18 Inconsistency between doctors' opinions does not allow the ALJ to simply select 19 one opinion based solely on the fact that an inconsistency exists, but instead the 20 ALJ must address, explain and resolve the conflicting evidence by assigning 21 weight to differing opinions based on cogent, specific, and legitimate reasons. 22 Morgan, 169 F.3d at 603; Reddick v. Chater, 157 F.3d 715, 722, 725 (9th Cir. 23 1998). 24 In this case, the ALJ dismissed two treating psychiatrist opinions without 25 providing a detailed, thorough summary of the facts, conflicting medical evidence, 26 and without identifying Plaintiff’s activities that the ALJ believed undermined the 27 doctors’ assessments. The ALJ’s rejection of these medical opinions was 28 insufficient. As a result, remand is required for proper analysis of these opinions. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 12 1 3. Candy Didier, LMHP 2 Plaintiff complains that the ALJ erred by failing to discuss the opinion from 3 Candy Didier, LMHP. ECF No. 15 at 11. Ms. Didier completed a Psychological/ 4 Psychiatric evaluation form regarding Plaintiff on August 7, 2009. Tr. 392-97. In 5 that form, Ms. Didier diagnosed Plaintiff with major depression, recurrent, severe 6 without psychotic symptoms and personality disorder, NOS, and she assigned a 7 GAF of 45. Tr. 394. She assessed Plaintiff with marked limitations in his abilities 8 to interact appropriately in public contacts, respond appropriately to and tolerate 9 the pressures and expectations of a normal work setting, and maintain appropriate 10 behavior in a work setting. Tr. 395. Ms. Didier indicated that, notwithstanding 11 Plaintiff’s impairments, he was “able to manage a small independent business of 12 20+ machines,” although she noted Plaintiff said he was losing money in the 13 business. Tr. 395. Ms. Didier also assessed Plaintiff with several moderate 14 limitations in cognitive and social factors. Tr. 395. She estimated Plaintiff would 15 be impaired between six and twelve months and she noted “[h]is legal status as a 16 sex offender further impairs his ability to function socially and occupationally.” 17 Tr. 396-97. 18 As Defendant points out, the ALJ’s opinion likely mistakenly addressed Ms. 19 Didier’s evaluation in the paragraph related to Ms. Jurs.2 Tr. 21-22; ECF No. 17 at 20 10-11. The ALJ noted Ms. Didier’s opinion that Plaintiff cannot work due to his 21 criminal history is irrelevant to the disability determination. Tr. 22. The ALJ also 22 noted that this provider was not an acceptable medical source, but she could 23 provide insight into the severity of Plaintiff’s impairments. Tr. 22. 24 The ALJ’s opinion failed to address the portions of Ms. Didier’s evaluation 25 26 27 28 In the opinion, the paragraph addressing Ms. Jurs cited Exhibit B14F/6, which is the Psychological/Psychiatric Evaluation completed by Ms. Didier. Tr. 21-22; 392-97. 2 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 13 1 that indicated marked and moderate limitations. On remand, the ALJ should 2 specifically address Ms. Jurs’ opinion and include a detailed analysis related to the 3 weight assigned to the opinions provided therein, including the assessed limitations 4 in the evaluation. 5 B. Credibility 6 Plaintiff argues that the ALJ erred in finding him not credible. ECF No. 15 7 at 13-14. Defendant responds that the ALJ’s credibility analysis properly focused 8 primarily upon whether Plaintiff’s testimony established changed circumstances, 9 instead of relying upon the “usual credibility factors.” ECF No. 17 at 4. 10 “In weighing a claimant's credibility, the ALJ may consider his reputation 11 for truthfulness, inconsistencies either in his testimony or between his testimony 12 and his conduct, his daily activities, his work record, and testimony from 13 physicians and third parties concerning the nature, severity, and effect of the 14 symptoms of which he complains.” Light v. Comm'r of Social Sec. Admin., 119 15 F.3d 789, 792 (9th Cir. 1997). As Plaintiff points out, the ALJ’s credibility analysis contains a 16 17 contradiction: the ALJ asserts no records exist to substantiate Plaintiff’s twice- 18 monthly counseling sessions, yet the ALJ also cites pages in the record that reflect 19 those counseling sessions. Tr. 20; ECF No. 15 at 14. On remand, the ALJ should 20 reexamine Plaintiff’s credibility and provide a detailed analysis, supported by 21 substantial evidence in the record. 22 C. 23 Vocational Expert Plaintiff contends that the ALJ improperly denied his request to question the 24 vocational expert. ECF No. 15 at 15. Plaintiff argues that vocational expert 25 testimony was necessary because of the presence of Plaintiff’s mental impairments. 26 ECF No. 15 at 15. Defendant responds that because Plaintiff’s RFC did not 27 change, consulting a vocational expert was unnecessary because a vocational 28 expert testified at Plaintiff’s previous hearing. ECF No. 17 at 12. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 14 1 An ALJ may rely on the Medical-Vocational Guidelines at 20 C.F.R. pt. 2 404, Subpt. P, App. 2 (“the Grids”) to meet his burden at step five. Burkhart v. 3 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). The Grids may be used only when 4 they “accurately and completely describe the claimant's abilities and limitations.” 5 Id. When non-exertional limitations are sufficiently severe as to significantly limit 6 the range of work permitted by the claimant's exertional limitations, the Grids are 7 inapplicable and consultation with a vocational expert is required. Id.; accord 8 Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) ("[A]n ALJ is required to 9 seek the assistance of a vocational expert when the non-exertional limitations are at 10 a sufficient level of severity such as to make the grids inapplicable to the particular 11 case."). 12 In this case, Plaintiff presented medical evidence that arguably indicates his 13 mental functioning deteriorated since 2008, and was sufficiently severe as to 14 significantly limit the range of work he could perform. The ALJ’s refusal to allow 15 counsel to question the vocational expert about how Plaintiff’s current mental 16 limitations affect his ability to sustain full time work was error. On remand, the 17 ALJ will allow counsel the opportunity to question a vocational expert and 18 establish a record. 19 D. 20 Past Relevant Work Plaintiff contends that the ALJ erred by finding Plaintiff had engaged in past 21 relevant work, because his income for that work did not meet the threshold for 22 “substantial gainful activity” (“SGA”) as defined in the regulations. ECF No. 15 at 23 15-16. The Defendant responded that Plaintiff mistakenly relied upon the 24 substantial gainful activity threshold for blind individuals, the proper threshold 25 monthly amount in 20003 was $700, and Plaintiff met this amount by earning 26 $885.60 per month. ECF No. 17 at 13. Defendant is correct, and as a result, the 27 ALJ did not err in finding that Plaintiff’s past relevant work met the substantial 28 http://www.ssa.gov/oact/cola/sga.html. 3 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 15 1 gainful activity threshold. 2 E. 3 Remand Remand for further proceedings is appropriate where additional proceedings 4 could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 5 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 6 1984). Because the ALJ improperly evaluated the medical evidence, Plaintiff’s 7 credibility, and failed to allow vocational expert testimony, the case must be 8 remanded to remedy the defects. 9 The selection of a new ALJ on remand is generally within the discretion of 10 the Commissioner of the Social Security Administration. Hartnett v. Apfel, 21 11 F.Supp.2d 217, 222 (E.D.N.Y.1998) (citing Travis v. Sullivan, 985 F.2d 919, 924 12 (7th Cir.1993). Without making such an order, this court encourages the 13 Commissioner to weigh whether the present case should be heard a third time by 14 an ALJ who has twice ruled that Plaintiff is not disabled, while improperly 15 weighing the testimony of some witnesses, and declining to call an expert who was 16 present and requested by the Plaintiff. 17 18 CONCLUSION The ALJ's decision is based on legal error. Remand is necessary for specific 19 and proper evaluation of the medical evidence, Plaintiff’s credibility, Plaintiff’s 20 residual functional capacity and to obtain vocational expert testimony related to the 21 impact of Plaintiff’s mental limitations. 22 and the case is REMANDED for further proceedings consistent with this opinion. 23 Accordingly, 24 IT IS ORDERED: 25 1. The decision is therefore REVERSED 26 27 28 Plaintiff’s Motion for Summary Judgment (ECF No. 15) is GRANTED. 2. Defendant’s Motion for Summary Judgment (ECF No. 17) is DENIED. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 16 1 3. An application for attorney fees may be filed by separate motion. 2 The District Court Executive is directed to file this Order and provide a copy to 3 counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff, and the 4 file shall be CLOSED. 5 DATED January 9, 2014. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 17
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