Layne v. Colvin, No. 2:2013cv00230 - Document 23 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER. Plaintiff's 19 Motion for Summary Judgment is granted. Defendant's 21 Motion for Summary Judgment is denied. Signed by Magistrate Judge Victor E. Bianchini. (KW, Case Administrator)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 10 11 Case No. 2:13-CV-00230-VEB NYNA JEAN MARIE LAYNE, Plaintiff, DECISION AND ORDER vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 15 16 17 18 I. INTRODUCTION In February of 2010, Plaintiff Nyna Jean Marie Layne applied for Supplemental Security Income ( SSI ) benefits under the Social Security Act. The Commissioner of Social Security denied the application. 19 20 1 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 Plaintiff, represented by the Law Offices of Dana Madsen, Joseph Linehan, 2 Esq., of counsel, commenced this action seeking judicial review of the 3 Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 7). 6 On March 5, 2014, the Honorable Rosanna Malouf Peterson, Chief United 7 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 8 636(b)(1)(A) and (B). (Docket No. 18). 9 II. BACKGROUND 10 11 The procedural history may be summarized as follows: 12 On February 10, 2010, Plaintiff applied for SSI benefits, alleging disability 13 beginning April 1, 2000. (T at 120-23).1 The application was denied initially and 14 Plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). On 15 September 13, 2011, a hearing was held before ALJ James W. Sherry. (T at 37). 16 Plaintiff appeared with her attorney and testified. (T at 43-56). The ALJ also 17 received testimony from Sharon Welter, a vocational expert (T at 57-63). 18 19 20 1 Citations to ( T ) refer to the administrative record at Docket No. 14. 2 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 On December 16, 2011, ALJ Sherry issued a written decision denying the 2 application for benefits and finding that Plaintiff was not disabled within the 3 meaning of the Social Security Act. (T at 17-36). The ALJ s decision became the 4 Commissioner s final decision on April 23, 2013, when the Social Security Appeals 5 Council denied Plaintiff s request for review. (T at 1-6). 6 On June 17, 2013, Plaintiff, acting by and through her counsel, timely 7 commenced this action by filing a Complaint in the United States District Court for 8 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 9 an Answer on November 25, 2013. (Docket No. 13). 10 Plaintiff filed a motion for summary judgment on April 28, 2014. (Docket No. 11 19). The Commissioner moved for summary judgment on June 9, 2014. (Docket 12 No. 21). Plaintiff filed a reply brief on June 30, 2014. (Docket No. 22). As noted 13 above, the parties consented to the jurisdiction of a Magistrate Judge. (Docket No. 14 7). 15 16 For the reasons set forth below, the Commissioner s motion is denied, Plaintiff s motion is granted, and this case is remanded for calculation of benefits. 17 18 19 20 3 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act ( the Act ) defines disability as the inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 The initial burden of proof rests upon plaintiff to establish a prima facie case 5 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 2 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 3 met once plaintiff establishes that a mental or physical impairment prevents the 4 performance of previous work. The burden then shifts, at step five, to the 5 Commissioner to show that (1) plaintiff can perform other substantial gainful 6 activity and (2) a significant number of jobs exist in the national economy that 7 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 B. Standard of Review 9 Congress has provided a limited scope of judicial review of a Commissioner s 10 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 11 made through an ALJ, when the determination is not based on legal error and is 12 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 13 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 14 determination that a plaintiff is not disabled will be upheld if the findings of fact are 15 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 16 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 17 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 18 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 19 Substantial evidence means such evidence as a reasonable mind might accept as 20 6 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 2 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 3 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 4 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 5 whole, not just the evidence supporting the decision of the Commissioner. Weetman 6 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 7 526 (9th Cir. 1980)). 8 It is the role of the Commissioner, not this Court, to resolve conflicts in 9 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 10 interpretation, the Court may not substitute its judgment for that of the 11 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 13 set aside if the proper legal standards were not applied in weighing the evidence and 14 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 15 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 16 administrative findings, or if there is conflicting evidence that will support a finding 17 of either disability or nondisability, the finding of the Commissioner is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 19 20 7 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 C. Commissioner s Decision 2 The ALJ found that Plaintiff had not engaged in substantial gainful activity 3 since February 10, 2010, the alleged onset date. (T at 22). The ALJ determined that 4 Plaintiff s obesity, osteoarthritis, lumbar degenerative disc disease, right knee 5 degenerative joint disease, mild left knee status post meniscus repair, migraines, 6 borderline intellectual functioning, dysthymia disorder, adjustment disorder with 7 depressed mood, and personality disorder with borderline features were impairments 8 considered severe under the Act. (Tr. 22-23). 9 However, the ALJ concluded that Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled one of the impairments 11 set forth in the Listings. (T at 23-25). The ALJ determined that Plaintiff retained the 12 residual functional capacity ( RFC ) to perform sedentary work, as defined in 20 13 CFR § 416.967 (a), except that she should avoid concentrated exposure to extremes 14 of cold, vibrations, and hazard. With regard to mental demands, the ALJ found that 15 Plaintiff could perform simple, routine, repetitive tasks, provided she was not in a 16 fast paced environment and provided the environment was low stress and required 17 only occasional decision-making and changes in the work setting, and involved only 18 superficial interaction with the general public. (T at 25-30). 19 20 8 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 The ALJ concluded that Plaintiff could not perform her past relevant work as 2 a nurse assistant. (T at 30). 3 application date), education (limited), work experience, and RFC (sedentary, with 4 non-exertional limitations outlined above), the ALJ concluded that there were jobs 5 that exist in significant numbers in the national economy that Plaintiff can perform. 6 (T at 30-31). However, considering Plaintiff s age (30 on the 7 As such, the ALJ concluded that Plaintiff was not disabled, as defined under 8 the Act, between February 10, 2010 (the application date) and December 16, 2011 9 (the date of the ALJ s decision) and was therefore not entitled to benefits. (Tr. 31). 10 As noted above, the ALJ s decision became the Commissioner s final decision when 11 the Appeals Council denied Plaintiff s request for review. (Tr. 1-6). 12 D. Plaintiff s Argument 13 Plaintiff contends that the Commissioner s decision should be reversed. In 14 particular, she argues that the ALJ did not properly assess the medical evidence with 15 her regard to her psychological impairments. 16 17 IV. ANALYSIS 18 In disability proceedings, a treating physician s opinion carries more weight 19 than an examining physician s opinion and an examining physician s opinion is 20 9 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 given more weight than that of a non-examining physician. Benecke v. Barnhart, 2 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1995). If the treating or examining physician s opinions are not contradicted, they 4 can be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. If 5 contradicted, the opinion can only be rejected for specific and legitimate reasons 6 supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 7 1043 (9th Cir. 1995). 8 A. Summary of Examining Providers Opinions 1. 9 10 Dr. Rosekrans In October of 2010, Dr. Frank Rosekrans, an examining psychologist, 11 completed a psychological/psychiatric evaluation. 12 depression and anxiety were likely to cause moderate limitations as to Plaintiff s 13 ability to perform basic work-related activities. (T at 411). Dr. Rosekrans diagnosed 14 major depressive disorder (single episode, mild), borderline intellectual functioning, 15 and psychosocial and environmental problems. (T at 412). He assigned a Global 16 Assessment of Functioning ( GAF ) score2 of 45 (T at 412), which is indicative of 17 serious impairment in social, occupational or school functioning. Onorato v. Astrue, 18 19 A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment. Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 10 He opined that Plaintiff s 2 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 No. CV-11-0197, 2012 U.S. Dist. LEXIS 174777, at *11 n.3 (E.D.Wa. Dec. 7, 2 2012). 3 appropriately to co-workers and supervisors; responding appropriately to and 4 tolerating the pressures and expectations of a normal work setting; and maintaining 5 appropriate behavior in a work setting. (T at 413). Dr. Rosekrans assessed marked limitations with regard to relating 6 Dr. Rosekrans performed a second assessment in October of 2011. He opined 7 that Plaintiff s depression would cause moderate limitations, while her anxiety 8 would result in mild limitations. (T at 479). 9 depressive disorder (single episode, mild), maladaptive health behaviors affecting 10 medical condition, somatization disorder, borderline intellectual functioning, and 11 occupational problems. (T at 479). He again assigned a GAF score of 45. (T at 479). 12 Dr. Rosekrans reported that he did not believe Plaintiff could engage in competitive 13 employment. (T at 481). 14 2. 15 Dr. Dr. Rosekrans diagnosed major Dr. Arnold John Arnold, an examining psychologist, completed a 16 psychological/psychiatric evaluation in April of 2008. 17 limitations arising from Plaintiff s depressed mood and physical complaints. (T at 18 237). Dr. Arnold opined that Plaintiff had marked limitations as to exercising 19 judgment and making decisions and moderate limitations with regard to 20 11 He assessed marked DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 understanding, remembering, and following complex instructions and learning new 2 tasks. (T at 238). Dr. Arnold also found moderate limitations with regard to 3 Plaintiff s ability to maintain appropriate behavior, relate appropriately with co- 4 workers and supervisors and respond appropriately to and tolerate the pressure and 5 expectations of a normal work setting. (T at 238). He did note some suggestion that 6 Plaintiff was over-reporting her psychological difficulties. (T at 241). 7 Dr. Arnold diagnosed major depressive disorder (recurrent moderate), rule out 8 somatoform disorder, rule out borderline intellectual functioning, and financial and 9 employment problems. (T at 242). He assigned a GAF score of 60, which is 10 indicative of moderate symptoms or difficulty in social, occupational or education 11 functioning. Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 12 (E.D.Wa Jan. 7, 2013). 13 3. Dr. Moua 14 In July of 2008, Dr. Ger Moua, an examining psychologist, completed a 15 psychological/psychiatric evaluation. Dr. Moua assessed moderate depressed mood, 16 motor retardation, and physical complaints. (T at 227). He diagnosed adjustment 17 disorder with depressed mood and borderline intellectual functioning. (T at 227). 18 Dr. Moua opined that Plaintiff would have mild limitation as to learning new tasks, 19 exercising judgment, and making decisions. (T at 228). Dr. Moua assessed marked 20 12 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 limitation as to Plaintiff s ability to respond appropriately to and tolerate the 2 pressures and expectations of a normal work setting, and moderate limitations with 3 regard to relating appropriately with the public, co-workers, and supervisors and 4 controlling physical or motor movements and maintaining appropriate behavior. (T 5 at 228). Dr. Moua reported that Plaintiff was not likely to work in the next 6 months 6 unless she received individual counseling focused on loss and pain management. (T 7 at 235). He assigned a GAF of 60 (T at 235), which is indicative of moderate 8 symptoms or difficulty in social, occupational or education functioning. Amy v. 9 Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 (E.D.Wa Jan. 7, 10 2013). 11 4. 12 Dr. Dr. Greene W. Greene, an examining psychologist, conducted a 13 psychological/psychiatric evaluation in November of 2009. Dr. Greene diagnosed 14 dysthymic disorder, borderline personality disorder, borderline and intellectual 15 functioning. (T at 201). He assigned a GAF of 55 (T at 201), which is indicative of 16 moderate symptoms or difficulty in social, occupational or education functioning. 17 Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 (E.D.Wa 18 Jan. 7, 2013). He assessed moderate limitations as to Plaintiff s ability to make 19 decisions and exercise judgment; perform routine tasks; respond appropriately to and 20 13 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 tolerate the pressures and expectations of a normal work setting; relate appropriately 2 with the public, co-workers, and supervisors and maintain appropriate behavior in a 3 work setting. (T at 202). 4 B. Adequacy of ALJ s Assessment of the Medical Opinions 5 The ALJ discounted the examining physicians opinions to varying degrees. 6 He gave little weight to Dr. Rosekrans s October 2010 opinion and some weight to 7 his October 2011 assessment. (T at 28-29). The ALJ gave little weight to Dr. 8 Arnold s opinion and, in particular, discounted the doctor s conclusion that Plaintiff 9 had a marked limitation with regard to her ability to make decisions. (T at 29). He 10 gave Dr. Moua s opinion some weight and afforded some weight to Dr. 11 Greene s findings. (T at 28). 12 This Court finds that the ALJ did not provide sufficient reasons for 13 discounting these medical opinions. Thus, the Court finds that the assessment of 14 Plaintiff s psychological limitations is not supported by substantial evidence. 15 1. Activities of Daily Living 16 The ALJ discounted the examining physicians opinions as inconsistent with 17 Plaintiff s activities of daily living, which were described as attending to personal 18 care needs, engaging in household chores (e.g. laundry, preparing meals, washing 19 dishes), grocery shopping), and performing basic leisure activities (e.g. using the 20 14 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 computer, watching television, visiting her significant other, reading books and 2 newspapers). (T at 26). However, Plaintiff s ability to perform these routine aspects 3 of daily living has limited probative value with respect to her capacity to handle the 4 stress demands of competitive, remunerative employment on a sustained basis. 5 Individuals with chronic mental health problems commonly have their lives 6 structured to minimize stress and reduce their signs and symptoms. Courneya v. 7 Colvin, No. CV-12-5044, 2013 U.S. Dist. LEXIS 161332, at *13-14 (E.D.W.A. 8 Nov. 12, 2013)(quoting 20 C.F.R. Pt. 404, Subp't P, App. 1 § 12.00(D)). 9 The Social Security Act does not require that claimants be utterly 10 incapacitated to be eligible for benefits, and many home activities are not easily 11 transferable to what may be the more grueling environment of the workplace, where 12 it might be impossible to periodically rest or take medication. Fair v. Bowen, 885 13 F.2d 597, 603 (9th Cir. 1989); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th 14 Cir. 2012)( The critical differences between activities of daily living and activities 15 in a full-time job are that a person has more flexibility in scheduling the former than 16 the latter, can get help from other persons . . ., and is not held to a minimum standard 17 of performance, as she would be by an employer. The failure to recognize these 18 differences is a recurrent, and deplorable, feature of opinions by administrative law 19 judges in social security disability cases. )(citations omitted). 20 15 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 Stress is highly individualized and a person with a mental health 2 impairment may have difficulty meeting the requirements of even so-called low- 3 stress' jobs. SSR 85-15. Here, the ALJ did not adequately link Plaintiff s ability to 4 perform basic personal care and leisure activities to her capacity for handling the 5 stress demands of competitive, remunerative work (even in a low stress 6 environment ). See SSR 85-15 ( The basic mental demands of competitive, 7 remunerative, unskilled work include the abilities (on a sustained basis) to 8 understand, carry out, and remember simple instructions; to respond appropriately to 9 supervision, coworkers, and usual work situations, and to deal with changes in a 10 routine work setting. ). 11 As discussed further below, every examining physician found that Plaintiff 12 would have a significant limitation in managing the stress and schedule of regular 13 work. Thus, Plaintiff s activities of daily living do not justify the ALJ s decision to 14 discount the medical opinions and do not support the ALJ s RFC determination. 15 2. 16 The ALJ afforded significant weight to the opinions of two non-examining 17 Non-Examining State Agency Review Consultants State Agency review consultants. (T at 27). 18 In April of 2010, Dr. Arthur Lewy reviewed Plaintiff s records and noted a 19 diagnosis of dysthymic disorder. (T at 267). He assessed moderate limitations as to 20 16 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 activities of daily living, maintaining social functioning, and maintaining 2 concentration, persistence, or pace. (T at 274). Dr. Lewy opined that Plaintiff would 3 be moderately limited with regard to her ability to perform activities within a 4 schedule, maintain regular attendance, and be punctual within customary tolerances. 5 (T at 278). However, he found no limitation as to Plaintiff s ability to sustain an 6 ordinary routine without special supervision, work in coordination or proximity to 7 others without being distracted by them, and make simple work-related decisions. (T 8 at 278). Dr. Lewy opined that Plaintiff could complete predictable routines in a 9 workday and cope with usual workplace hassles, stresses, and changes. (T at 280). 10 In September of 2010, Dr. Rita Flanagan, another non-examining State Agency 11 review consultant, reviewed and adopted Dr. Lewy s assessment. (T at 409). The 12 ALJ gave significant weight to these assessments, finding them consistent with 13 Plaintiff s activities of daily living. (T at 27-28). 14 The opinion of a non-examining, State Agency physician does not, without 15 more, justify the rejection of an examining physician s opinion. Lester v. Chater, 81 16 F.3d 821, 831 (9th Cir. 1995)(citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th 17 Cir. 1990)). 18 The rejection of an examining physician opinion based on the testimony of a 19 non-examining medical consultant may be proper, but only where there are 20 17 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 sufficient reasons to reject the examining physician opinion independent of the non- 2 examining physician's opinion. See e.g., Lester, 81 F.3d at 831; Roberts v. Shalala, 3 66 F.3d 179 (9th Cir. 1995); see also Henderson v. Astrue, 634 F. Supp. 2d 1182, 4 1190 (E.D.Wa. 2009)( The opinion of a non-examining physician may be accepted 5 as substantial evidence if it is supported by other evidence in the record and is 6 consistent with it. )(citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). 7 Here, for the reasons discussed above, the evidence of Plaintiff s activities of 8 daily living does not provide an independent basis sufficient to allow the ALJ to use 9 the non-examining consultant assessments to discount the examining physician 10 opinions. Moreover, neither of the consultants had the opportunity to review Dr. 11 Rosekrans s opinions, which were rendered after the consultants made their findings. 12 This is significant because Dr. Rosekrans assessed marked limitations with regard to 13 Plaintiff s ability to respond appropriately to and tolerate the pressures and 14 expectations of a normal work setting (T at 413) and opined that Plaintiff could not 15 engage in competitive employment. (T at 481). The ALJ does not appear to have 16 considered this fact. 17 As such, this Court finds that the ALJ afforded undue weight to the non- 18 examining consultants opinions and those opinions do not constitute substantial 19 evidence sufficient to sustain his decision. 20 18 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 3. Resolution of Conflicting Opinions 2 The ALJ also discounted the various examining physician opinions by noting 3 that some of the physicians assessed moderate limitations, while others found 4 marked limitations. However, the most significant fact is that all of the examining 5 physicians found some significant limitation with regard to Plaintiff s ability to 6 handle the stress demands of competitive, remunerative work on a sustained basis. 7 Dr. Rosekrans assessed marked limitations with regard to relating 8 appropriately to co-workers and supervisors; responding appropriately to and 9 tolerating the pressures and expectations of a normal work setting; and maintaining 10 appropriate behavior in a work setting. (T at 413). He did not believe Plaintiff could 11 engage in competitive employment. (T at 481). 12 Dr. Moua assessed marked limitation as to Plaintiff s ability to respond 13 appropriately to and tolerate the pressures and expectations of a normal work setting, 14 and moderate limitations with regard to relating appropriately with the public, co- 15 workers, and supervisors and controlling physical or motor movements and 16 maintaining appropriate behavior. (T at 228). 17 Dr. Arnold found moderate limitations with regard to Plaintiff s ability to 18 maintain appropriate behavior, relate appropriately with co-workers and supervisors 19 20 19 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 and respond appropriately to and tolerate the pressure and expectations of a normal 2 work setting. (T at 238). 3 Dr. Greene assessed moderate limitations as to Plaintiff s ability to make 4 decisions and exercise judgment; perform routine tasks; respond appropriately to and 5 tolerate the pressures and expectations of a normal work setting; relate appropriately 6 with the public, co-workers, and supervisors and maintain appropriate behavior in a 7 work setting. (T at 202). 8 In addition, in June of 2009, Jessica Garry, LMHC, a mental health counselor, 9 conducted an in-person interview and evaluation of Plaintiff. Ms. Gary diagnosed 10 adjustment disorder with mixed anxiety and depressed mood, maladaptive health 11 behaviors affecting medical condition, and borderline intellectual functioning. (T at 12 217). 13 appropriately to and tolerate the pressures and expectations of a normal work setting. 14 (T at 218). Ms. Garry opined that Plaintiff had moderate limitation as to her ability 15 to relate appropriately to co-workers and supervisors, interact appropriately in public 16 contacts, and maintain appropriate behavior. (T at 218). She assessed marked limitation as to Plaintiff s ability to respond 17 The ALJ gave relatively more weight to the findings of Dr. Greene and Dr. 18 Arnold, concluding that, while Plaintiff s ability to tolerate stress was limited, she 19 could nevertheless work in a low stress environment with only occasional decision 20 20 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 making and changes in the work setting. The ALJ s decision in this regard was 2 based, in material part, on his conclusion that Plaintiff s activities of daily living 3 were inconsistent with marked mental health limitations. (T at 25-30). 4 However, for the reasons outlined above, Plaintiff s activities of daily living 5 are a poor predictor of her ability to handle the stress demands of work. Further, to 6 the extent the ALJ relied on the non-examining consultant opinions to assess the 7 severity of Plaintiff s stress limitations, that reliance was also suspect for the reasons 8 outlined above (e.g., the consultants did not have access to Dr. Rosekrans s 9 findings). 10 Moreover, even the physicians who assessed moderate limitations either found 11 marked limitation in other areas or expressed general doubt about Plaintiff s ability 12 to perform competitive, remunerative work in a regular and predictable manner. 13 Although Dr. Greene assessed moderate limitations, he also described Plaintiff as 14 chronically mental[ly] ill and opined that mental health intervention was not likely 15 to restore or substantially improve her ability to work for pay in a regular and 16 predictable manner. (T at 203). 17 Plaintiff s ability to tolerate the pressures and expectations of a normal work setting, 18 but also assessed marked limitation as to Plaintiff s ability to exercise judgment and 19 make decisions. (T at 238). 20 Dr. Arnold found moderate limitation as to 21 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 The ALJ is, as matter of law, entitled to resolve conflicts in the evidence. See 2 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, the ALJ s 3 resolution of the conflict must be supported by substantial evidence. Here, the 4 ALJ s decision to choose the moderate findings over the marked findings was 5 not supported by substantial evidence. Further, it is not clear that the moderate 6 findings, considered in context, actually provide material support for the conclusion 7 that Plaintiff can tolerate the demands of even low stress work on a sustained, 8 consistent basis. Rather, the evidence, considered in context (including the opinions 9 of several examining medical providers), makes it clear that Plaintiff s mental health 10 impairments preclude her from meeting such demands. 11 C. Remand 12 The court has discretion to remand a case for additional evidence and findings 13 or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). An 14 award of benefits may be directed where the record has been fully developed and 15 where further administrative proceedings would serve no useful purpose. Id. Courts 16 have credited evidence and remanded for an award of benefits where (1) the ALJ has 17 failed to provide legally sufficient reasons for rejecting such evidence, (2) there are 18 no outstanding issues that must be resolved before a determination of disability can 19 be made, and (3) it is clear from the record that the ALJ would be required to find 20 22 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 the claimant disabled were such evidence credited. Id. In this case, the ALJ's reasons 2 for discounting the examining physicians opinions were legally insufficient. There 3 are no outstanding issues and the record is fully developed. Thus, a finding that 4 Plaintiff is disabled is required. Therefore, the ALJ's decision is reversed and this 5 matter remanded for determination of benefits. 6 7 8 9 V. ORDERS 10 11 IT IS THEREFORE ORDERED that: 12 Plaintiff s motion for summary judgment, Docket No. 19, is GRANTED. 13 The Commissioner s motion for summary judgment, Docket No. 21, is 14 15 16 DENIED. This case is REMANDED to the Commissioner for further proceedings consistent with this Decision and Order. 17 The District Court Executive is directed to file this Order, provide copies to 18 counsel, enter judgment in favor of the Plaintiff, and keep the case open for a period 19 20 23 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB 1 of sixty (60) days to allow Plaintiff s counsel an opportunity to submit an 2 application for attorneys fees. 3 DATED this 2nd day of September, 2014. 4 5 6 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 24 DECISION AND ORDER LAYNE v COLVIN 13-CV-00230-VEB

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