Toothe v. Colvin (previously Astrue), No. 2:2013cv03021 - Document 19 (E.D. Wash. 2014)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND - granting 13 Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (CC, Case Administrator)

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Toothe v. Colvin (previously Astrue) Doc. 19 1 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 6 JAMES TOOTHE, 7 8 9 No. CV-13-03021-RHW Plaintiff, v. 10 11 CAROLYN W. COLVIN, Commissioner of Social Security, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND 12 Defendant. 13 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 Nos. 13, 15. Attorney D. James Tree represents Plaintiff; Special Assistant 17 United States Attorney Christopher J. Brackett represents the Commissioner of 18 Social Security (Defendant). After reviewing the administrative record and the 19 briefs filed by the parties, the court GRANTS Plaintiff’s Motion for Summary 20 Judgment and DENIES Defendant’s Motion for Summary Judgment. 21 JURISDICTION 22 On November 9, 2010, Plaintiff filed an application for supplemental 23 security insurance income, alleging disability beginning January 30, 1997. 1 Tr. 20; 24 190. Plaintiff indicated that he was unable to work due to depression. Tr. 189. 25 The claim was denied initially, denied upon reconsideration, and Plaintiff 26 1 27 At the hearing, Plaintiff stipulated to amend the alleged onset date to November 9, 2010. Tr. 41. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 1 Dockets.Justia.com 1 subsequently requested a hearing. Tr. 85-108. On June 21, 2012, ALJ Marie 2 Palachuk presided over an administrative hearing at which Harvey Alpern, M.D., 3 Marian S. Martin, Ph.D., vocational expert Diane Kramer and Plaintiff, who was 4 represented by counsel, testified. Tr. 37-83. The ALJ denied Plaintiff’s claim on 5 July 27, 2012. Tr. 20-32. The Appeals Council declined review. Tr. 1-5. The 6 instant matter is before this court pursuant to 42 U.S.C. § 405(g). 7 STATEMENT OF FACTS 8 At the time of the hearing, Plaintiff was 46 years old and living with a 9 roommate in a trailer, in Selah, Washington. Tr. 66. Plaintiff graduated from high 10 school and enlisted in the army. Tr. 68; 74. Plaintiff was a regular user of 11 methamphetamine for about 15 years. Tr. 292. Plaintiff testified that he last used 12 in August, 2009. Tr. 64. 13 Plaintiff has little work history. He briefly worked as a truck driver. Tr. 69. 14 While driving the truck, he was involved in an accident, and he still has nightmares 15 about the incident. Tr. 69. Plaintiff currently does not drive. Tr. 70. 16 Plaintiff said he has no friends, and most days, he stays in his room all day. 17 Tr. 70. He testified that his roommate does the grocery shopping because when he 18 is in a store, he loses his breath, his chest tightens and he feels like he is getting 19 “closed in on.” Tr. 70. 20 21 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 24 deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 25 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 26 only if it is not supported by substantial evidence or if it is based on legal error. 27 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 2 1 defined as being more than a mere scintilla, but less than a preponderance. Id. at 2 1098. Put another way, substantial evidence is such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion. Richardson v. 4 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 5 rational interpretation, the court may not substitute its judgment for that of the 6 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 7 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 8 substantial evidence will still be set aside if the proper legal standards were not 9 applied in weighing the evidence and making the decision. Brawner v. Secretary 10 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 11 evidence supports the administrative findings, or if conflicting evidence supports a 12 finding of either disability or non-disability, the ALJ’s determination is conclusive. 13 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 14 15 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 17 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 18 through four, the burden of proof rests upon the claimant to establish a prima facie 19 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 20 burden is met once a claimant establishes that a physical or mental impairment 21 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 22 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 23 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 24 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 25 in the national economy which claimant can perform. Batson v. Commissioner of 26 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 3 1 adjustment to other work in the national economy, a finding of “disabled” is made. 2 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). ALJ’S FINDINGS 3 4 At step one of the sequential evaluation process, the ALJ found Plaintiff had 5 not engaged in substantial gainful activity since November 9, 2010, the amended 6 alleged onset date. Tr. 22. At step two, the ALJ found Plaintiff has the following 7 severe impairments: hepatitis C; hypertension; morbid obesity; depression 8 disorder; anxiety disorder NOS, and amphetamine dependence in reported 9 remission. Tr. 22. At step three, the ALJ concluded that Plaintiff did not have an 10 impairment or combination of impairments that meets or medically equals the 11 severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 12 Appendix 1 (20 C.F.R. 416.929(d), 416.925 and 416.926). Tr. 23. The ALJ found 13 that Plaintiff has the residual functional capacity to perform light work with a few 14 exertional and non-exertional restrictions. Tr. 26. The ALJ concluded that 15 Plaintiff had no past relevant work, and considering Plaintiff’s age, education, 16 work experience and residual functional capacity, jobs exist in significant numbers 17 in the national economy that Plaintiff can perform, such as Production Assembler, 18 Cleaner I, and Deliverer, outside. Tr. 31. As a result, the ALJ concluded Plaintiff 19 was not disabled as defined by the Social Security Act. Tr. 31. ISSUES 20 21 Plaintiff contends that the ALJ erred by: (1) failing to fully develop the 22 record; (2) determining Plaintiff had little credibility; (3) improperly weighing the 23 medical opinion evidence; and (4) relying upon an incomplete hypothetical. ECF 24 No. 13 at 7-8. 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 4 1 2 DISCUSSION 1. Developing the Record. 3 Plaintiff argues that the ALJ failed to fully develop the record by failing to 4 order an evaluation of Plaintiff by a licensed psychologist. ECF No. 13 at 17-18. 5 In Social Security cases, the ALJ has a special duty to develop the record 6 fully and fairly and to ensure that the claimant's interests are considered, even 7 when the claimant is represented by counsel. Tonapetyan v. Halter, 242 F.3d 8 1144, 1150 (9th Cir. 2001); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 9 An ALJ's duty to develop the record further is triggered when the evidence is 10 ambiguous or when the record is inadequate to allow for proper evaluation of the 11 evidence. Tonapetyan, 242 F.3d at 1150. 12 In this case, testifying expert Marian Martin, Ph.D., expressed uncertainty 13 about the severity of Plaintiff’s anxiety symptoms. Dr. Martin noted Plaintiff’s 14 medical history included mild anxiety symptoms, but Plaintiff also consistently 15 asserted that he did better if he did not have to interact with people. Tr. 50. Dr. 16 Martin also noted that in October, 2011, Christopher J. Clark, M.Ed., LMHC, and 17 Deborah Blaine, M.S., diagnosed Plaintiff with chronic PTSD and panic disorder 18 with agoraphobia. Tr. 50. At the hearing, Dr. Martin testified: “the anxiety 19 symptoms look a lot more severe in [the Clark/Blaine report] than they have 20 throughout the entire rest of the record.” Tr. 51. As a result, Dr. Martin was 21 uncertain about the severity of Plaintiff’s anxiety disorder. Tr. 51. 22 23 Dr. Martin opined that if the Clark/Blaine report (referred to as “14F” below) was credited, Plaintiff would meet Listing 12.06: 24 25 26 27 A. Well, here’s where I have my dilemma: if I look at most of the record, except for 14F, he would not meet or equal [a Listing]. If I look at – if I just take the 14F by itself, at face value, he would probably equal [Listing 12.06 – Anxiety Disorders]. The problem I 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 have here is I have one record that has that in it, and it’s October 2011. And I don’t have that level of difficulty in any of the other records. Q. (by ALJ) Do we have any physicians, psychologists, or psychiatrists who has corroborated a diagnosis of PTSD or panic disorder with agoraphobia? A. I don’t believe so. I think the only records we have in here are from, you know, an – there’s an LCFW in 1F; there’s a Masters level clinician in, I think, 3F and 5F; and then the last one, the 14F, was by Christopher Clark, who’s got a master’s of education. So – an M.Ed. So I – no, we don’t. I’m sorry that was – Q. Okay. A. -- a long way to answer that question. Q. Okay. So from the regulations, from a Social Security perspective, I do not accept the diagnosis of PTSD or panic disorder with agoraphobia because we don’t have any acceptable medical source making that diagnosis or affirming that diagnosis after it was made by a non-acceptable medical source. Keeping that in mind, would the claimant meet or medically equal any listing? A. No. Tr. 52-53. Dr. Martin explained that in order to determine if Plaintiff met the Listing, an examination and objective testing by a licensed psychologist was necessary: 18 19 20 21 22 23 24 25 26 Q. Okay. I mean you’re talking, here, about a lot of things that are hard to glean from this record. Do you think it would help clarify that situation to have an evaluation by a Ph.D. level evaluator to see if the diagnosis is more properly anxiety disorder or a panic disorder with agoraphobia? A. Well, I think it would be helpful to have an objective assessment that would include something like a personality assessment inventory or an MMPI-2…. Then an in-depth clinical interview with a licensed psychologist who also has access to some of these records. Tr. 62. 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 6 1 By opining that an examination by a licensed psychologist would be 2 “helpful” in accurately assessing Plaintiff’s mental impairments, Dr. Martin 3 essentially indicated that the current record is insufficient to accurately determine 4 Plaintiff’s psychological impairments. As a result, the ALJ failed to fully develop 5 the record. This case must be remanded so that a licensed psychologist may 6 examine Plaintiff, administer objective testing and provide an assessment and 7 diagnosis of Plaintiff’s psychological impairments. 8 2. 9 Credibility. Plaintiff contends that the ALJ erred by finding Plaintiff lacked credibility. 10 ECF No. 13 at 15-17. The ALJ’s credibility analysis is scattered throughout the 11 decision, and much of it is problematic. Tr. 28-29. The ALJ found Plaintiff had 12 little credibility because Plaintiff’s testimony was inconsistent, his symptoms 13 improved after receiving GAX funds and thus suggested “some degree of 14 secondary gain,” he failed to regularly seek treatment, and he failed to comply with 15 his medication regime. Tr. 28-29. 16 a. Inconsistent Testimony. 17 Plaintiff challenges the ALJ’s finding that his testimony about his social 18 isolation was inconsistent. Specifically, Plaintiff argues that his assertion that he 19 rarely, if ever, left his room was consistent because he stopped going to the health 20 club after January, 2010. ECF No. 13 at 16. Defendant relies upon a January, 21 2012, medical record that indicated Plaintiff was regularly working out at a health 22 club. ECF No. 15 at 14. 23 During the hearing, Plaintiff testified that he spent “a year and a half in my 24 room,” and he had not been “out amongst people,” or “around people” for about 25 one year prior to June 21, 2012 hearing. Tr. 70; 72. Plaintiff said his last outing 26 was to Safeway about one year prior to the hearing. Tr. 72. 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 7 1 First, the record does not support the ALJ’s finding that Plaintiff worked out 2 at a health club five days per week. The note the ALJ referenced was a Yakima 3 Neighborhood Health Services (“YNHS”) chart note, dated January 21, 2010. The 4 notation indicated Plaintiff had a “moderate activity level” that included exercise 5 on the treadmill and weights, three to four times per week. Tr. 480. Similarly, the 6 record Defendant referenced was a YNHS chart note dated January 21, 2012. Tr. 7 459. Significantly, the records from YNHS include three years – from January, 8 2010, through January, 2012. Tr. 265; 459; 480; 486. Each record contains a 9 section entitled “lifestyle” and each entry under this heading on every record is 10 identical. It appears each record after 2010 was simply a reprinting of information 11 Plaintiff provided at his initial visit. In short, the ALJ and Defendant relied upon 12 outdated information. As a result, the record does not support the ALJ’s 13 conclusion that Plaintiff worked out at a health club regularly throughout 2011 and 14 2012, and substantial evidence does not support this reason for finding Plaintiff 15 lacked credibility. 16 Second, the record does not support the ALJ’s conclusion that “[t]he record 17 as a whole does not support his statement that he stays in his room most of the time 18 as he attends doctor’s appointments and goes to NA/AA meetings.” Tr. 29. 19 Plaintiff has consistently acknowledged that he attends NA/AA meetings. In the 20 Function Report dated April 29, 2010, Plaintiff indicated that he left his house once 21 per day to attend NA/AA meetings. Tr. 227. He said he attended but participated 22 very little, and stated, “I don’t like groups of people and [I] tend to isolate.” Tr. 23 228; 230. Plaintiff also indicated that he shopped once per month for food and 24 hygiene items. Tr. 227. Plaintiff’s earliest statements reveal his admission that he 25 leaves the house to attend NA/AA meetings, and thus no inconsistency exists. 26 Moreover, on February 8, 2011, Plaintiff completed a Disability Report 27 Appeal form. Tr. 196-201. Plaintiff explained that since his December 2010, 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 8 1 report, his anxiety worsened and he began experiencing “anxiety in public. This 2 started when I started to attend AA meetings.” Tr. 196. Plaintiff explained that he 3 became nervous, sweaty and his heart beats rapidly. Tr. 196. He also stated that “I 4 used to be more social,” and in 2011, his daily activities were reduced to staying 5 home, reading and watching television. Tr. 200. 6 Plaintiff’s assertion that he spends “most” of his time in his room is 7 consistent with attending one meeting per day and occasional doctor appointments. 8 As a result, the ALJ’s conclusion that Plaintiff provided inconsistent testimony 9 about his tendency to isolate is not supported by the record, and does not establish 10 that Plaintiff lacked credibility. 11 b. Secondary Gain. 12 Next, Plaintiff challenges the ALJ’s finding that the improvements of 13 Plaintiff’s symptoms after he received GAX funds suggested “some degree of 14 secondary gain.” Tr. 28. The ALJ’s wording is cryptic, and the full meaning of 15 the ALJ’s suggestion is unclear, but it appears the ALJ suspected Plaintiff 16 exaggerated symptoms in order to obtain benefits. 17 Neither the ALJ nor Defendant point to evidence in the record that supports 18 Plaintiff was malingering or exaggerating his symptoms. And even if the ALJ's 19 characterization of the record were accurate, no support exists in the law of this 20 circuit for the proposition that an ALJ may deem a claimant not credible merely 21 because he has a genuine financial need for the benefits that he seeks. It is difficult 22 to imagine how any claimant would be found credible under that reasoning. Thus, 23 the ALJ's reliance upon Plaintiff’s motivation for "secondary gain" as a reason to 24 discount his credibility is not supported by substantial evidence. 25 c. 26 Finally, the ALJ found Plaintiff lacked credibility because he failed to 27 Treatment and Medication. comply with recommended medication and he failed to regularly seek treatment. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 9 1 Tr. 29. The Ninth Circuit has held, "it is a questionable practice to chastise one 2 with a mental impairment for the exercise of poor judgment in seeking 3 rehabilitation." Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996)(quoting 4 Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.1989)). The Ninth Circuit 5 also acknowledges that an unexplained or inadequately explained failure to seek 6 treatment can cast doubt on the sincerity of a claimant's pain testimony, but this 7 general principle does not apply when a claimant cannot afford the treatment. See 8 Regennitter v. Comm'r SSA, 166 F.3d 1294, 1296 (9th Cir. 1999). In support of the ALJ’s charge that Plaintiff failed to take his medication, the 9 10 ALJ cites a single report that indicates Plaintiff had not used medication for two 11 months prior to the examination. Tr. 29; 454. In that record, Plaintiff explained 12 that he had “no way to get to the pharmacy,” and when he sought help, he was told 13 to make an appointment at the Central Washington Comprehensive Mental Health 14 Center, which he did. Tr. 454. The ALJ’s conclusion that Plaintiff failed to 15 regularly comply with his medication regime was unreasonable because it was 16 based upon a single instance in which Plaintiff explained the reason: he was 17 unable to find a way to travel to the pharmacy. As a result, substantial evidence 18 does not support this reason for discrediting Plaintiff. In sum, the ALJ’s reasons for finding Plaintiff had little credibility are not 19 20 supported by the record. On remand, the ALJ is directed to provide a new 21 credibility analysis, using proper factors that are supported by specific, substantial 22 evidence in the record. 23 3. 24 25 26 Medical Opinion Evidence. Plaintiff contends that the ALJ erred by improperly weighing the medical evidence. ECF No. 13 at 10-15. a. Unacceptable Medical Sources. 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 10 1 Plaintiff advances several arguments contending that the ALJ erred by 2 discounting the opinions of Christopher Clark, M.Ed., LMHC, Russell Anderson, 3 LICSW, and Deborah Blaine, M.S. In evaluating the weight to be given to the 4 opinion of medical providers, Social Security regulations distinguish between 5 "acceptable medical sources" and "other sources." Acceptable medical sources 6 include, for example, licensed physicians and psychologists, while other non- 7 specified medical providers are considered "other sources." 20 C.F.R. §§ 8 404.1513(a) and (e), 416.913(a) and (e), and SSR 06-03p. An ALJ is required to 9 consider observations by non-acceptable medical sources as to how an impairment 10 affects a claimant's ability to work. Sprague, 812 F.2d at 1232. An ALJ must 11 give reasons germane to "other source" testimony before discounting it. Dodrill v. 12 Shalala, 12 F.3d 915 (9th Cir. 1993). To qualify as germane, a reason for 13 disregarding the testimony of a lay witness must be more than a wholesale 14 dismissal of all such witnesses as a group, but rather must be specific to the 15 individual witness. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996.) 16 In determining the weight to give an opinion from an “unacceptable” source, 17 the ALJ considers: the length of time the source has known the claimant and the 18 number of times and frequency that the source has seen the claimant; the 19 consistency of the source's opinion with other evidence in the record; the relevance 20 of the source's opinion; the quality of the source's explanation of his opinion; and 21 the source's training and expertise. SSR 06-03p. 22 1. Christopher Clark, M.Ed., LMHC 23 On June 28, 2010, Christopher J. Clark, M.Ed., LMHC, completed a check- 24 the-box Psychological/Psychiatric evaluation of Plaintiff. Tr. 255-62. Mr. Clark 25 noted Plaintiff’s report that his medication provided a “slight increase in 26 motivation and positive mood function.” Tr. 258. Mr. Clark assessed Plaintiff 27 with marked limitations in three categories: (i) the ability to exercise judgment and 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 11 1 make decisions; (ii) the ability to interact appropriately in public contacts; and (iii) 2 the ability to respond appropriately to and tolerate the pressures and expectations 3 of a normal work setting. Tr. 258. Mr. Clark also assessed multiple moderate 4 limitations. Tr. 258. Finally, Mr. Clark noted, at that time, Plaintiff was “still 5 early in his drug recovery, and not likely to tolerate the stressors of normal work 6 environment.” Tr. 258. Philip Rodenberger, M.D., signed Mr. Clark’s evaluation 7 as the “releasing authority.” Tr. 260. 8 9 The ALJ gave no weight to Mr. Clark’s assessment for several reasons. First, the ALJ found, Mr. Clark’s assessment of multiple marked impairments was 10 contradicted by Mr. Anderson’s opinion that Plaintiff’s impairments were only 11 moderate. Tr. 28; 246; 260. The ALJ is responsible for resolving conflicts in 12 medical testimony, and for resolving ambiguities. Andrews, 53 F.3d at 1039. 13 Second, as the ALJ found, Mr. Clark’s assessment failed to account for 14 Plaintiff’s symptom improvement. Tr. 28; 258. “Impairments that can be 15 controlled effectively with medication are not disabling for the purpose of 16 determining eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 17 439 F.3d 1001, 1006 (9th Cir. 2006). 18 Third, Mr. Clark relied upon the fact that Plaintiff was “early” in his drug 19 recovery, but Plaintiff had stopped using drugs nine months earlier. Tr. 28. No 20 evidence established what constitutes “early” in drug recovery. In the absence of 21 evidence to the contrary, the ALJ’s conclusion that nine months was not “early” in 22 a drug recovery was reasonable. Thus, Mr. Clark’s opinion that Plaintiff could not 23 sustain work was premised in part upon a fact that did not exist. 24 Finally, the ALJ noted that he gave the opinions from both Mr. Clark and 25 Russell Anderson, LICSW, little weight because they were both non-accepted 26 medical sources. Tr. 28. As Plaintiff noted, the ALJ must consider observations 27 by non-acceptable medical sources related to how the claimant’s impairments 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 12 1 affect the ability to work. Sprague, 812 F.2d at 1232. However, in this case, the 2 ALJ provided several reasons for giving little weight to these opinions. The ALJ’s 3 word choice was unfortunate, but the attendant explanation revealed that the other 4 source opinions were not dismissed simply because they were non-acceptable 5 sources. 6 Plaintiff also argues that the ALJ ignored that Dr. Rodenberger “endorsed” 7 the assessments from Mr. Clark and Mr. Anderson, establishing that they were part 8 of a “treatment team,” and thus entitled to be considered as an acceptable source. 9 ECF No. 13 at 13. The evidence does not support Plaintiff’s assertion. Instead, 10 11 Dr. Rodenberger merely signed as “releasing authority.” More significantly, Plaintiff relies on Gomez v. Chater, 74 F.3d 967, 971 12 (9th Cir. 1996), for the proposition that Mr. Clark’s opinion should have been 13 accorded the same weight as that of a physician because he worked as part of a 14 treatment team. Gomez is no longer good law. See 65 Fed. Reg. 34,950, 34,952 15 (June 1, 2000). Under the current regulations, a master’s of education and licensed 16 mental health practitioner qualifies only as an “other source,” irrespective of a 17 relationship to an acceptable medical source. 20 C.F.R. § 416.913(d); Casner v. 18 Colvin, 958 F. Supp. 2d 1087, 1097(C.D. Cal.2013). The ALJ was not required to 19 give Mr. Clark’s opinions the same weight as if he was an accepted medical 20 source. 21 As discussed above, on October 10, 2011, Mr. Clark and Deborah Blaine, 22 MSW, diagnosed Plaintiff with chronic Post Traumatic Stress Disorder (“PTSD”) 23 and Panic Disorder with agoraphobia. Tr. 446-50. The ALJ gave no weight to the 24 diagnoses on the basis that both examiners were non-accepted medical sources and 25 no other treating or examining providers assessed Plaintiff with these diagnoses. 26 Tr. 29; 448. An "other source" is not qualified to make a diagnosis. Nguyen, 100 27 F.3d at 1467 (medical diagnoses are beyond the competence of other source 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 13 1 witnesses and therefore do not constitute competent evidence). As a result, Mr. 2 Clark and Ms. Blaine’s opinions may not establish PTSD or panic disorder as a 3 medically determinable impairment. See S.S.R. 06-03p ("other sources" cannot 4 establish the existence of a medically determinable impairment); 20 C.F.R. §§ 5 404.1513(d), 416.913(d). The ALJ provided valid reasons for the weight given to 6 the opinions of these medical sources. 7 2. 8 Plaintiff contends that the ALJ gave invalid reasons for giving little weight 9 10 Russell Anderson, LICSW to the opinion of Russell Anderson, LICSW. ECF No. 13 at 13. Mr. Anderson completed a Psychological/Psychiatric Evaluation related to 11 Plaintiff on March 29, 2010. Tr. 243-48. Mr. Anderson assessed Plaintiff with 12 five marked limitations, and summarized, “[g]enerally, he functions pretty well in 13 a work setting as long as he does not have to interact with others and prefers more 14 solitary type of work.” Tr. 246. 15 The ALJ gave little weight to Mr. Anderson’s assessment, in part, because it 16 was based upon Plaintiff’s self-reported symptoms. Tr. 27. A medical provider’s 17 opinion may be rejected if it is based on a claimant's subjective complaints which 18 were properly discounted. Tonapetyan, 242 F.3d at 1149. 19 Plaintiff argues that Mr. Anderson’s assessment was entitled to more weight 20 because multiple medical records established Plaintiff sought treatment for 21 depression and anxiety. ECF No. 13 at 14. However, Mr. Anderson’s report 22 indicates that he did not review any of Plaintiff’s records. Tr. 243. Because Mr. 23 Anderson did not review Plaintiff’s medical records, the evaluation had to be based 24 only upon observations and Plaintiff’s self- report. In the accompanying Adult 25 Mental Status Summary, Mr. Anderson checked the box indicating Plaintiff was 26 “depressed,” and included what appears to be a quote from Plaintiff: “been 27 depressed since I was a kid.” Tr. 249. The notation supports the ALJ’s 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 14 1 interpretation that Mr. Anderson relied upon Plaintiff’s self-reports in determining 2 the assessed limitations. 3 The ALJ also found that the report contains few objective findings to 4 support Mr. Anderson’s opinion. Tr. 27. An ALJ may discredit medical provider 5 opinions that are conclusory, brief, and unsupported by the record as a whole, or by 6 objective medical findings. Batson, 359 F.3d at 1195. Mr. Anderson did not 7 administer objective tests or review Plaintiff’s medical records, and thus the ALJ’s 8 determination that his assessment lacks objective findings is supported by the 9 record. 10 b. 11 Plaintiff alleges that the ALJ erred by rejecting the opinion of Dr. McRae 12 because it was based upon the discredited opinions from Mr. Anderson and Mr. 13 Clark. ECF No. 13 at 10. Plaintiff also argues that the record as a whole supports 14 Dr. McRae’s opinions. 15 John McRae, Ph.D. On October 30, 2010, Dr. John McRae approved a certification for Medicaid 16 for Plaintiff. Tr. 627. The brief assessment from Dr. McRae states that Plaintiff’s 17 prescribing psychiatrist reported Plaintiff’s condition was deteriorating, he 18 continued to have moderate mood problems, he may have a persistent organic 19 mental disorder secondary to methamphetamine use, and he “may be likely” to 20 decompensate if he tried to sustain work. Tr. 627. 21 The ALJ gave no weight to Dr. McRae’s opinion because it was “based 22 solely” upon his review of Messrs. Anderson and Clark’s opinions. Tr. 28. Also, 23 the ALJ indicated that the evidence as a whole does not indicate Plaintiff would 24 decompensate if he attempted to persist in a work setting. Tr. 28. The ALJ cited 25 records that revealed Plaintiff’s condition improved after being approved for GAX. 26 Tr. 28. As decided above, the ALJ did not err in giving little weight to the 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 15 1 assessments from Messrs. Anderson and Clark, and thus Dr. McRae’s reliance 2 upon those reports was misplaced. Tr. 28. Plaintiff cites several records that he contends support Dr. McRae’s 3 4 assessment that Plaintiff may likely suffer an episode of decompensation if he tried 5 to sustain work. ECF No. 13 at 10-11. The records Plaintiff cites are all related to 6 treating Plaintiff’s depression. Tr. 268-345. It is not clear from these records that 7 Plaintiff’s depression would cause him to decompensate if he attempted to work 8 and Plaintiff points to no other evidence that supports his argument. In the absence 9 of supporting records, the ALJ reasonably concluded that the record did not 10 support Dr. McRae’s speculation that Plaintiff would decompensate if he tried to 11 work. As a result, the ALJ did not err in according little weight to Dr. McRae’s 12 opinion. 13 4. Incomplete hypothetical. 14 Plaintiff also alleged that the ALJ erred by relying upon the vocational 15 expert’s answer to a hypothetical that failed to include all of Plaintiff’s limitations. 16 ECF No. 13 at 18-20. In light of the disposition of this case, it is not necessary to 17 analyze this issue. 18 CONCLUSION 19 Having reviewed the record and the ALJ's findings, the court concludes the 20 ALJ's decision is based on legal error, and requires remand. On remand, the ALJ 21 must fully develop the record regarding Plaintiff’s mental impairments by ordering 22 an examination of Plaintiff that includes a personality assessment inventory or an 23 MMPI-2, along with an in-depth clinical interview by a licensed psychologist who 24 has access to Plaintiff’s medical records to determine if Plaintiff meets or equals a 25 Listing. If Plaintiff does not meet or equal a Listing, on remand the ALJ is 26 directed to revisit the entire disability analysis. The decision is therefore 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 16 1 REVERSED and the case is REMANDED for further proceedings consistent with 2 this opinion. Accordingly, 3 IT IS HEREBY ORDERED: 4 1. Plaintiff's Motion for Summary Judgment (ECF No. 13) is 5 GRANTED. The matter is remanded to the Commissioner for additional 6 proceedings pursuant to sentence four 42 U.S.C. 405(g). 7 8 9 2. Defendant's Motion for Summary Judgment (ECF No. 15) is DENIED. 3. An application for attorney fees may be filed by separate motion. 10 The District Court Executive is directed to file this Order and provide a copy 11 to counsel for plaintiff and defendant. Judgment shall be entered for plaintiff and 12 the file shall be CLOSED. 13 DATED this 17th day of November, 2014. 14 15 16 17 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND- 17

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