Fuselier v. Colvin, No. 4:2016cv05053 - Document 19 (E.D. Wash. 2017)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - granting 16 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)
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Fuselier v. Colvin Doc. 19 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 AMANDA FUSELIER, v. 9 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 8 10 No. 4:16-CV-5053-EFS CAROLYN COLVIN, Commissioner of Social Security Administration, Defendant. 12 13 Before 14 the Court are cross motions for summary judgment. ECF 15 Nos. 16 & 17. Plaintiff Amanda Fuselier appeals the denial of benefits 16 by the Administrative Law Judge (ALJ). ECF No. 16. Ms. Fuselier contends 17 the ALJ erred because she (1) improperly weighed the medical testimony; 18 (2) failed to consider lay testimony; and (3) improperly discredited Ms. 19 Fuselier. ECF No. 16. The Commissioner of the Social Security 20 Administration (“Commissioner”) asks the Court to affirm the ALJ’s 21 22 decision that Ms. Fuselier is not disabled under the Social Security 23 Act. ECF No. 17. After reviewing the record and relevant authority, the 24 Court is fully informed. For the reasons set forth below, the Court 25 remands for further proceedings. 26 /// 27 // 28 / ORDER - 1 Dockets.Justia.com 1 A. Statement of Facts1 2 Ms. Fuselier was born in 1980. Administrative Record (AR) at 250. 3 She dropped out of school after eighth grade, but subsequently obtained 4 her GED. AR at 69. She has three biological children and one stepchild. 5 AR at 56. Ms. Fuselier has been diagnosed with a number of physical and 6 mental conditions including diabetes mellitus with peripheral 7 neuropathy; lumbago; major depressive disorder; generalized anxiety 8 9 disorder; posttraumatic stress disorder; borderline personality disorder 10 traits; 11 dependence. AR at 21. Ms. Fuselier’s depression and anxiety seem to be 12 related, at least in part, to sexual abuse that she experienced as a 13 child. AR at 21. She has engaged in multiple suicide attempts, with the 14 most recent apparent attempt occurring in December 2013. AR at 62. Ms. 15 and cannabis dependence with history of polysubstance Fuselier manages her conditions using a variety of medications including 16 insulin, Gabapentin, Mirapex, Lamictal, Lexapro, and Risperidone. AR at 17 1160. 18 Ms. Fuselier has limited employment history. AR at 416–23. She has 19 20 worked primarily as a home caregiver, but it appears that these 21 positions primarily involved working for family members — Ms. Fuselier’s 22 mother (Linda Bates) and aunt (Brenda Armijo). See, e.g., AR at 265, 23 274. Ms. Fuselier reports that she has not worked since approximately 24 April 25 reported income for 2013 casts some doubt on when she stopped working 2013, AR at 50, although the ALJ found that Ms. Fuselier’s 26 1 The facts are only briefly summarized. Detailed facts are contained in 27 the 28 administrative hearing transcript, the parties’ briefs, and the underlying records. ORDER - 2 ALJ’s decision, the 1 and whether she was working at a substantial gainful activity level 2 during the reported period of disability.2 3 B. 4 Procedural History On March 19, 2012, Ms. Fuselier protectively filed for Disability 5 Insurance Benefits, AR at 250–57, and on March 21, 2012, she 6 protectively filed for Supplemental Insurance Benefits, AR at 258–64. 7 Her alleged onset date is April 1, 2010. AR at 250, 258. On July 12, 8 9 10 2012, Ms. Fuselier’s claims were denied. AR at 203–06. On November 9, 2012, her claims were again denied on reconsideration. AR at 210–14. 11 On June 26, 2014, a hearing was held before ALJ Lori L. Freund. AR 12 at 39. Ms. Fuselier and Diane Kramer, an independent vocational expert, 13 testified. AR at 39. The ALJ determined that Ms. Fuselier has the severe 14 impairments of diabetes mellitus with peripheral neuropathy; lumbago; 15 major depressive disorder; generalized anxiety disorder; posttraumatic 16 stress disorder; borderline personality disorder traits; and cannabis 17 dependence with history of polysubstance dependence. AR at 21. The ALJ 18 determined, however, that Ms. Fuselier’s impairments do not meet or 19 20 medically equal the severity of any listed impairments. AR at 25. 21 Despite her impairments, the ALJ also ultimately found that Ms. Fuselier 22 has the residual functional capacity to perform light work; lift and 23 carry up to 20 pounds occasionally and up to 10 pounds frequently; stand 24 2 25 26 27 28 Ms. Fuselier’s mother, Linda Bates, filed a declaration indicating that a large part of Ms. Fuselier’s income for 2013, $13,890, represented gifts of money from Ms. Bates. AR at 323. On Ms. Fuselier’s tax returns, this money was reported as business income. AR at 327, 330. As the issue of whether Ms. Fuselier participated in substantial gainful activity was not clearly decided by the ALJ, see AR at 21, and is therefore not properly before this Court, the Court declines to address the issue. Nevertheless, as the Court is remanding this case to the ALJ, the Court notes that the ALJ may need to resolve this issue should it be determined that an award of benefits is otherwise appropriate. ORDER - 3 1 and walk for a total of up to six hours in an eight-hour workday, and 2 sit up to six hours in an eight-hour workday; occasionally climb ramps 3 or 4 stairs, but should avoid climbing ladders, ropes, or scaffolds; can frequently balance but only occasionally stoop, kneel, crouch, or 5 crawl; should avoid concentrated exposure to extreme cold or heat, or 6 hazards such as unprotected heights or moving machinery; is limited to 7 simple, routine, and repetitive tasks; would need to work away from the 8 9 general public but is capable of superficial contact with a small number 10 of coworkers; can perform no tandem tasks; and is capable of occasional 11 changes in work duties, but should avoid production rate or pace work. 12 AR at 27. Based on this assessment, the testimony of the vocational 13 expert, and Ms. Fuselier’s age, education, and work experience, the ALJ 14 concluded Ms. Fuselier could perform work that exists in sufficient 15 quantity in the national economy, such as office cleaner or mail clerk. 16 AR 30–31. 17 On May 30, 2016, the Appeals Council denied review of the ALJ’s 18 decision. AR at 1–3. Ms. Fuselier then filed this lawsuit, appealing the 19 20 21 ALJ’s decision. ECF No. 5. Subsequently, the parties filed the instant summary judgment motions. ECF Nos. 16 & 17. C. Disability Determination 22 A 23 “disability” is defined as the “inability to engage in any 24 substantial gainful activity by reason of any medically determinable 25 physical or mental impairment which can be expected to result in death 26 or which has lasted or can be expected to last for a continuous period 27 of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 28 1382c(a)(3)(A). ORDER - 4 The decision maker uses a five-step sequential 1 evaluation 2 C.F.R. §§ 404.1520, 416.920. 3 4 process to determine whether a claimant is disabled. 20 Step one assesses whether the claimant is engaged in substantial gainful activities during the relevant period. If she is, benefits are 5 denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If she is not, the 6 decision maker proceeds to step two. 7 Step two assesses whether the claimant has a medically severe 8 9 impairment or combination of impairments. claimant does C.F.R. have severe 404.1520(c), 416.920(c). If the 11 combination of impairments, 12 impairment is severe, the evaluation proceeds to the third step. disability a §§ 10 the not 20 claim is impairment denied. If or the 13 Step three compares the claimant’s impairment with a number of 14 listed impairments acknowledged by the Commissioner to be so severe as 15 to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 16 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of 17 the listed impairments, the claimant is conclusively presumed to be 18 disabled. If the impairment does not meet or equal one of the listed 19 20 impairments, the evaluation proceeds to the fourth step. Step four assesses whether the impairment prevents the claimant 21 22 from 23 determining 24 §§ 404.1520(e), 25 previous work, she is not disabled. If the claimant cannot perform this 26 performing work the he has claimant’s 416.920(e). performed residual If the in the functional claimant is past. This capacity. able to includes 20 C.F.R. perform his work, the evaluation proceeds to the fifth step. 27 Step five, the final step, assesses whether the claimant can 28 perform ORDER - 5 other work in the national economy in view of her age, 1 education, and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); 2 see Bowen v. Yuckert, 482 U.S. 137 (1987). 3 4 The burden of proof shifts during this sequential disability analysis. The claimant has the initial burden of establishing a prima 5 facie case of entitlement to disability benefits. Rhinehart v. Finch, 6 438 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if she 7 establishes that a physical or mental impairment prevents her from 8 9 engaging in her previous occupation. The burden then shifts to the 10 Commissioner to show (1) the claimant can perform other substantial 11 gainful activity, and (2) a “significant number of jobs exist in the 12 national economy” that the claimant can perform. Kail v. Heckler, 722 13 F.2d 1496, 1498 (9th Cir. 1984). A claimant is disabled only if her 14 impairments are of such severity that she is not only unable to do her 15 previous work, but cannot — considering her age, education, and work 16 experience — engage in any other substantial gainful work that exists in 17 the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 18 Here, the ALJ denied Ms. Fuselier’s claims at step five after 19 20 finding that Ms. Fuselier could perform work that existed in sufficient 21 quantity in the national economy. AR at 30–31. 22 D. Standard of Review 23 On review, a court considers the record as a whole, not just the 24 evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d 25 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 26 (9th Cir. 1980)). A court must uphold the ALJ’s determination that the 27 claimant is not disabled if the ALJ applied the proper legal standards 28 and there is substantial evidence in the record as a whole to support ORDER - 6 1 the decision. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) 2 (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 3 839 F.2d 432, 433 (9th Cir. 1987) (recognizing that a decision supported 4 by substantial evidence will be set aside if the proper legal standards 5 were not applied in weighing the evidence and making the decision). 6 Substantial evidence is more than a mere scintilla, Sorenson v. 7 Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less than a 8 9 preponderance, McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 10 1989); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 11 (9th Cir. 1988). “It means such relevant evidence as a reasonable mind 12 might 13 Perales, 402 U.S. 389, 401 (1971) (citations omitted). Any inferences 14 and conclusions that the ALJ may reasonably draw from the evidence will 15 accept as adequate to support a conclusion.” Richardson v. also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). A 16 court must uphold the ALJ’s decision, even if other rational 17 interpretations exist. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 18 1984). 19 20 21 22 E. Analysis The Court addresses each of Ms. Fuselier’s challenges to the ALJ’s decision. 23 1. 24 Ms. 25 26 medical Medical Testimony Fuselier testimony first argues regarding that mental the ALJ illness. improperly weighed Specifically, the the ALJ discounted the opinions of examining mental health professionals Dr. 27 Kouzes, Dr. Genthe, and Dr. Orr, and gave the greatest weight to an 28 opinion ORDER - 7 by non-examining mental health professional Dr. Martin. In 1 disability benefits cases, there are three types of physicians: treating 2 physicians, examining physicians, and non-examining physicians. Lester 3 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ must provide “clear 4 and convincing” reasons for rejecting an examining physician’s opinions 5 and may not reject such opinions without providing “specific and 6 legitimate reasons” supported by “substantial evidence” in the record. 7 Id. “An ALJ can satisfy the substantial evidence requirement by setting 8 9 out a detailed and clinical 11 findings.” 12 a. 14 15 v. his of the Colvin, interpretation facts and 759 F.3d 995, thereof, conflicting (internal quotation marks omitted). Garrison stating summary 10 13 evidence, thorough 1012 (9th and Cir. making 2014) Dr. Genthe Ms. Fuselier argues that the ALJ erred in weighing Dr. Genthe’s opinion based on a misreading of his findings. The ALJ gave “great 16 weight” to Dr. Genthe’s opinion and cited the significant limitations 17 found by Dr. Genthe, but noted that “Dr. Genthe also reported these 18 limits were only expected to last three months.” AR at 29; see also AR 19 20 at 22 (“Dr. Genthe opined prognosis was guarded as he thought it 21 unlikely she would be able to function adequately until her symptoms 22 were managed more effectively, at least three months.”). The ALJ found 23 that this opinion as to a short duration for severe impairment aligned 24 with evidence in the record that Ms. Fuselier “has had short periods of 25 time when her symptomatology is more severe, followed by periods of 26 doing relative well.” AR at 29. 27 The three-month durational language, however, appears nowhere in 28 Dr. Genthe’s opinion. As noted by Ms. Fuselier, Dr. Genthe found that “a ORDER - 8 1 period 2 treatment needs at least moderately well.” AR at 525 (emphasis added). 3 The Commissioner did not address this issue in its motion for summary 4 of no less than months might be sufficient to address her judgment, and instead repeated the error by continuing to inject a 5 three-month durational limit into Dr. Genthe’s opinion. 6 Given the fact that impairment must last at least 12 months in 7 order for a claimant to qualify for security income and disability 8 9 benefits, 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A), the ALJ’s reading 10 of a three-month limitation into Dr. Genthe’s opinion plainly would have 11 affected the ALJ’s interpretation of Ms. Fuselier’s disability. This is 12 especially true given the fact that the ALJ attributed Dr. Genthe’s 13 opinion “great weight,” and Dr. Genthe opined that Ms. Fuselier would 14 not be able to work until her conditions were better managed. It is also 15 possible that the ALJ may have assigned a different weight to Dr. 16 Genthe’s opinion had the misreading not occurred. The Court therefore 17 remands for the ALJ to reassess Dr. Genthe’s opinion without the 18 erroneous insertion of the three-month durational limitation. 19 b. 20 Ms. 21 Dr. Kouzes Fuselier argues that the ALJ improperly gave only “some 22 weight” to Dr. Kouzes’s opinion based on the ALJ’s findings that the 23 opinion was not consistent with Ms. Fuselier’s mental status exam and 24 was 25 Fuselier argues that the ALJ failed to cite any inconsistencies between 26 Dr. primiarly Kouzes’s based on findings Ms. and Fuselier’s the mental subjective status complaints. exam, and that Ms. no 27 inconsistencies actually exist. In addition, Ms. Fuselier claims that 28 ORDER - 9 1 the ALJ provided no basis for her finding that Dr. Kouzes’s opinion was 2 primarily based on Ms. Fuselier’s subjective complaints. 3 4 The Court first notes that the ALJ’s explanation for discounting Dr. Kouzes’s opinion is abbreviated and consists of only one sentence 5 spanning four lines in her opinion, making it difficult to evaluate on 6 review. AR at 30. Ms. Fuselier correctly argues that the ALJ could only 7 disregard Dr. Kouzes’s opinion for clear and convincing reasons. ECF 8 9 No. 16 at 7–8. In this case, however, the ALJ did not disregard Dr. 10 Kouzes’s 11 referenced it in other sections of the opinion, AR 24–25. The ALJ’s 12 explanation 13 evidence in the report and that the opinion “appears to be based on the 14 subjective complaints of an individual who is not fully credible,” AR at 15 opinion, for but rather discounting gave the it “some opinion — weight,” and, inconsistency in fact, with other 30 — are both appropriate considerations. See Tommasetti v. Astrue, 533 16 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating 17 physician’s opinion if it based ‘to a large extent’ on a claimant’s 18 self-reports that have been properly discounted as incredible.”); id. 19 20 (“The incongruity between [the treating physician’s] Questionnaire 21 responses and her medical records provides an additional specific and 22 legitimate reason for rejecting [the treating physician’s] opinion of 23 [the claimant’s] limitations.”). 24 25 26 The Court holds that the ALJ’s finding that the report contained inconsistencies and was likely based on subjective complaints were reasonable. The Court notes, however, that the ALJ’s analysis of Ms. 27 Fuselier’s credibility contained errors, as addressed below. 28 Accordingly, on remand the ALJ should reassess whether Ms. Fuselier’s ORDER - 10 1 subjective complaints are credible and how that affects the weight of 2 Dr. Kouzes’s opinion. 3 4 c. As to Dr. Orr Dr. Orr, Ms. Fuselier argues that the ALJ improperly 5 rejected portions of Dr. Orr’s opinion. The ALJ indicated that she 6 rejected the findings because Dr. Orr labeled those findings as 7 tentative due to questionable results for the Wechsler Memory Scale8 9 Fourth Edition (WMS-IV) exam, which may have indicated malingering. Ms. 10 Fuselier 11 Fuselier would have difficulty with emotional stability and carrying out 12 tasks in a work-like setting — were not based on the results of the 13 WMS-IV test. The ALJ gave “great weight” to Dr. Orr’s opinion, apart 14 from the portions indicated. AR at 29. 15 In argues his that report, the Dr. findings Orr rejected did note by that the his ALJ — that diagnosis Ms. was 16 “tentative.” AR at 900. This qualification is included above a section 17 labeled “Diagnosis.” AR at 900. Subsequently, Dr. Orr includes three 18 additional sections: “Prognosis,” “Capability of Managing Funds,” and 19 20 “Medical Source Statement.” AR at 901. It is under the “Medical Source 21 Statement” section that Dr. Orr addresses Ms. Fuselier’s ability to 22 function at work. He explained: 23 24 25 26 27 Results from the Wechsler Memory testing indicates [sic] significantly impaired memory function. There are significant questions regarding the validity of responses on this test. She currently suffers from marked depression and anxiety. She continues to have psychotic symptoms. She experiences a number of PTSD symptoms related to the emotional and sexual abuse. Currently Amanda would have difficulty maintaining emotional stability or being consistent in carrying out tasks in a worklike setting. 28 ORDER - 11 1 AR at 901. Based on a plain reading of the report, Dr. Orr’s indication 2 that his diagnosis was tentative does not extend to his finding under 3 “Medical 4 Source Statement.” Dr. Orr again noted the questionable findings of the memory test under this subheading, but proceeded to make 5 separate findings as to Ms. Fuselier’s ability to function in a work 6 environment. There is no indication in the report that these later 7 findings were tentative. In addition, it is not clear that the results 8 9 of the WMS-IV, a memory exam, would influence a practitioner’s findings 10 as to emotional stability or being able to carry out tasks in a work- 11 like setting.3 Accordingly, without any additional explanation as to the 12 ALJ’s 13 rejection was unreasonable. rejection 14 d. 15 of Dr. Orr’s findings, the Court holds that the Dr. Martin Ms. Fuselier also contends that the ALJ improperly credited Dr. 16 Martin, a non-examining expert, over the examining mental health 17 practitioners, and that Dr. Martin failed to provide sufficient support 18 for her findings. In general, the opinions of examining sources are 19 20 21 22 23 24 25 26 27 28 entitled to greater weight than are the opinions of non-examining sources. Garrison, 759 F.3d at 1012 (citing Ryan v. Comm’r of Soc. Sec., 3 See the following explanation from Pearson, the publisher of the WMS-IV: The Wechsler Memory Scale—Fourth Edition is an individually administered battery designed to assess various memory and working memory abilities of individuals ages 16–90 years. The WMS-IV offers a brief evaluation of cognitive status and provides a detailed assessment of clinically-relevant aspects of memory functions commonly reported in individuals with suspected memory deficits or diagnosed with a wide range of neurological, psychiatric, and developmental disorders. Wechsler Memory Scale—Fourth Edition (WMS-IV), Pearson, Training–Overview of the Wechsler Memory Scales–Fourth Edition (WMS-IV)(Sept. 9, 2011), available at http://www.pearsonclinical.com/psychology/products/100000281/wechslermemory-scale--fourth-edition-wms-iv.html#tab-training. ORDER - 12 1 528 2 examining physician’s testimony depends ‘on the degree to which they 3 provide 4 F.3d 1194, 1198 supporting (9th Cir. 2008)). explanations for “The their weight afforded opinions.’” Id. a non- (quoting § 404.1527(d)(3)). 5 The ALJ gave “significant weight” to Dr. Martin’s opinion. AR at 6 29. She explained that Dr. Martin has “specialized expertise” in 7 psychology and had the opportunity to review all of the evidence in the 8 9 record. AR at 29. The ALJ concluded that “Dr. Martin’s overall opinion 10 is consistent with the longitudinal medical history, objective medical 11 findings, 12 psychological consultant . . . .” AR at 29. 13 14 15 and the opinion of the non-examining state agency For most questions, Dr. Martin did not include an explanation for her findings and only generally referenced other portions of her submission,4 and the written portion of question 1 of the Medical Source 16 Statement was left blank, despite the form’s clear directives that 17 specific sources and reasoning be included for each question. See AR at 18 1180–85. Even in the more complete responses provided by Dr. Martin to 19 20 interrogatories #7 and #8, she did not consistently provide citations to 21 the record to support her findings. See AR at 1175–77, 1179. The ALJ did 22 not mention Dr. Martin’s lack of support. 23 As noted above, the weight of a non-examining source’s opinion 24 hinges on the support provided. Accordingly, the Court holds that Dr. 25 Martin’s lack of support for many of her findings should have been 26 considered by the ALJ. On remand, the ALJ should both weigh this lack of 27 28 4 Dr. Martin included notes such as ”See Attached Responses to Interrogatory Items 7 and 8” and “See Responses to Interrogatory.” AR at 1180–85. ORDER - 13 1 support 2 opinions of the examining mental health professionals, given the Court’s 3 other holdings. 4 and 2. reevaluate Dr. Martin’s opinion as compared with the Lay Testimony 5 Ms. Fuselier next argues that the ALJ committed reversible error 6 by failing to consider the lay testimony submitted by Ms. Fuselier’s 7 aunt, Brenda Armijo, who was also her employer at times. The 8 9 Commissioner concedes that “the ALJ did not specifically mention the 10 statement 11 harmless because the ALJ considered similar evidence and the aunt’s 12 statement was inconsistent with evidence in the record. ECF No. 17 at 13 11–12. 14 15 from Plaintiff’s aunt,” but argues that the omission was “Lay testimony as to a claimant’s symptoms or how an impairment affects the claimant’s ability to work is competent evidence that the 16 ALJ must take into account.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th 17 Cir. 2012). The ALJ may not disregard competent lay witness testimony 18 without comment and therefore must give specific, germane reasons for 19 20 disregarding the testimony. Id.; Bruce v. Astrue, 557 F.3d 1113, 1115 21 (9th Cir. 2009). The Court therefore holds that it was error for the ALJ 22 to fail to address the declaration made by Ms. Armijo. The 23 Court also holds that this error was not harmless. The 24 Commissioner argues that that Ms. Armijo’s statement was duplicative of 25 statements made by Ms. Fuselier and was inconsistent with other evidence 26 in the record. ECF No. 17 at 11–12. This argument, however, only 27 amplifies the importance of considering the declaration and weighing it 28 appropriately, ORDER - 14 as the statement could have bolstered Ms. Fuselier’s 1 credibility. As both a family member of Ms. Fuselier and an employer who 2 made 3 eventually 4 modifications fired in her an attempt despite to those accommodate Ms. Fuselier, accommodations, Ms. but Armijo’s declaration is highly relevant to Ms. Fuselier’s disability claim. The 5 Court cannot say with certainty that the ALJ would have reached the same 6 conclusion had she evaluated Ms. Armijo’s declaration. In addition, the 7 post hoc reasoning provided by the Commissioner on appeal is 8 9 insufficient to justify the ALJ’s decision when no explanation was given 10 by the ALJ herself. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 11 2001) (“[W]e cannot affirm the decision of an agency on a ground that 12 the agency did not invoke in making its decision.” (citing Sec. Exch. 13 Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947))). The Court makes no 14 finding as to the weight that the ALJ should give to Ms. Armijo’s 15 declaration, but only directs that the statement be expressly considered 16 on remand. 17 3. Claimant Credibility 18 Finally, Ms. Fuselier argues that the ALJ erred in finding Ms. 19 20 Fuselier not credible because the ALJ did not provide “a specific, 21 clear, and convincing reason to do so.” ECF No. 16 at 17. Ms. Fuselier 22 claims 23 determination 24 regarding hallucinations; (2) Ms. Fuselier’s inconsistent reports as to 25 her suicide attempts; (3) Ms. Fuselier’s noncompliance with medications; 26 that the on ALJ (1) erred Ms. by basing Fuselier’s her negative inconsistent credibility symptom reports (4) Ms. Fuselier’s account of when she stopped working, as compared with 27 her reported income; (5) Ms. Fuselier’s failure to disclose substance 28 abuse and ORDER - 15 legal history to Dr. Orr; and (6) a finding that Ms. 1 Fuselier’s 2 disability. Ms. Fuselier seems to concede that Dr. Orr’s finding of 3 potential malingering was an appropriate consideration for the ALJ’s 4 daily activities were inconsistent with her claims of negative credibility finding, but argues that the other errors in the 5 credibility analysis justify remand. 6 A two-step analysis is used by the ALJ to assess whether a 7 claimant’s testimony regarding subjective pain or symptoms is credible. 8 9 Garrison, 759 F.3d at 1014. Step one requires the ALJ to determine 10 whether 11 impairment that could reasonably be expected to produce some degree of 12 the pain or other symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 13 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9th 14 Cir. 15 the 1996). claimant Objective presented medical objective evidence of medical pain or evidence fatigue, of or an the severity thereof, need not be provided by the claimant. Garrison, 759 16 F.3d at 1014. 17 If the claimant satisfies the first step of this analysis, and 18 there is no evidence of malingering, the ALJ must accept the claimant’s 19 20 testimony about the severity of his symptoms unless the ALJ provides 21 specific, clear, and convincing reasons for rejecting the claimant’s 22 testimony. Id. An ALJ is not “required to believe every allegation of 23 disabling pain” or other non-exertional impairment. Orn v. Astrue, 495 24 F.3d 625, 635 (9th Cir. 2007). To discredit a claimant’s testimony when 25 a medical impairment has been established, however, the ALJ must provide 26 specific, cogent reasons for the disbelief. See id. at 636 (“Factors 27 that an ALJ may consider in weighing a claimant’s credibility include 28 reputation for truthfulness, inconsistencies in testimony or between ORDER - 16 1 testimony 2 inadequately explained, failure to seek treatment or follow a prescribed 3 course of treatment.” (internal quotation marks omitted)). 4 and conduct, daily activities, and unexplained, or At step one of the credibility determination, the ALJ found that 5 Ms. Fuselier’s medically determinable impairments could reasonably be 6 expected to cause the alleged symptoms AR at 28. At step two, however, 7 the ALJ found that Ms. Fuselier’s “assertion of total disability under 8 9 the Social Security Act is not supported by the weight of the evidence” 10 and 11 exaggeration suggestive of motivation for secondary gain in the form of 12 establishing entitlement to Social Security disability payments.” AR at 13 28. 14 15 noted that the “record documents evidence of inconsistency and The Court holds that many of the explanations given by the ALJ for finding Ms. Fuselier not credible are reasonable and appropriate. The 16 ALJ appropriately considered Ms. Fuselier’s reports of occasionally 17 working full time during her period of disability and engaging in 18 household tasks apparently inconsistent with the reported level of 19 20 disability. See Orn, 495 F.3d at 636. The ALJ was also correct to 21 consider 22 medical and psychological impairments. See Fair v. Bowen, 885 F.2d 597, 23 603 (9th Cir. 1989) (A claimant’s failure to assert “good reasons” for 24 failure to seek treatment or follow a proposed course of treatment “can 25 cast doubt on the sincerity of the claimant’s pain testimony.”); see 26 Ms. Fuselier’s noncompliance with medication for both her also Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (“[T]here was 27 no medical evidence that [the claimant’s] resistance [to treatment] was 28 attributable ORDER - 17 to her mental impairment rather than her own personal 1 preference, and it was reasonable for the ALJ to conclude that the level 2 or 3 complaints.” (internal quotation marks omitted)). Consideration of Ms. 4 frequency of treatment [was] inconsistent with the level of Fuselier’s inconsistent statements was also appropriate. See Thomas v. 5 Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002). To the extent that the 6 ALJ considered Ms. Fuselier’s criminal history, continued use of 7 marijuana despite the recommendations of multiple medical professionals, 8 9 and concern expressed by medical professionals regarding Ms. Fuselier’s 10 numerous trips to the emergency room with reports of pain that could not 11 be objectively verified, those considerations are also permissible. See 12 id. 13 Nevertheless, the Court also notes that apparently “inconsistent” 14 reports as to mental health symptoms and the fact that treatment is 15 effective for mental health conditions must be evaluated within the 16 context of the disorder. Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 17 2016). Here, the ALJ noted that “[t]reatment records suggest that the 18 claimant has experienced some waxing and waning of symptoms, but that 19 20 she has had a generally positive response to treatment. . . . In view of 21 this evidence, caution must be exercised when evaluating allegations 22 pertaining to symptoms and limitations set forth by the claimant in any 23 setting involving the potential for secondary gain.” AR at 28–29. The 24 fact 25 treatment is not, however, a proper consideration for discrediting the 26 that a social security claimant has a positive response to claimant unless that positive response is consistent over time. Attmore, 27 827 F.3d at 878 (“Although the ALJ pointed to isolated signs of 28 improvement, the ALJ could not find medical improvement on that basis ORDER - 18 1 unless the ups and the downs of [the claimant’s] development showed 2 sustained improvement.”). 3 4 In this case, the ALJ noted that Ms. Fuselier showed improvement in July 2012, AR at 28–29, but the ALJ does not include the fact that 5 Ms. Fuselier intentionally overdosed on medication in December 2013, AR 6 at 1034–42. It is the nature of some mental disorders that “symptoms wax 7 and wane over time,” Attmore, 827 F.3d at 878, and the Ninth Circuit has 8 9 held that “it is error to reject a claimant’s testimony merely because 10 symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d at 11 1017. 12 attacks, anxiety, and depression makes some improvement does not mean 13 that the person’s impairments no longer seriously affect her ability to 14 function in a workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th 15 In addition, “[t]hat a person who suffers from severe panic Cir. 2001). In Garrison, the Ninth Circuit explained: 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the record reveals a tortuous path: some symptoms came and went (e.g., paranoia, hallucinations, pseudo-seizures), some symptoms persisted nearly the whole period (e.g., insomnia, bouts of depression and mania), and still other symptoms appear to have remained a constant source of impairment (e.g., intense anxiety). Garrison’s diagnoses of PTSD and bipolar disorder remained constant across all treatment records, and her GAF score consistently hovered around 50 to 55. She remained in this condition even while going to great lengths to minimize stressors in her life — to the point that she could not go to the grocery store alone — and, when she did try to work for a brief period, was fired because of her mental impairments. The ALJ erred in concluding that a few short-lived periods of temporary improvement in Garrison’s mental health symptoms undermined Garrison’s testimony. Garrison, 759 F.3d at 1018. Accordingly, although there are legitimate factors weighing against Ms. Fuselier’s credibility, to the extent that the ALJ relied on ORDER - 19 1 isolated 2 reporting mental health symptoms such as hallucinations to discredit Ms. 3 Fuselier, the Court holds that those findings were made in error. On 4 instances of improvement in symptoms and inconsistency in remand, the ALJ should consider whether Ms. Fuselier’s improvement has 5 been sustained over time and whether inconsistent statements regarding 6 hallucinations indicate untruthfulness or variation in symptomology over 7 time. The Court makes no finding as to whether Ms. Fuselier should 8 9 ultimately be found credible or not credible following an appropriate 10 evaluation of the evidence in the record. 11 C. 12 Conclusion For the above-given reasons, the Court remands the case for 13 further proceedings. Although the Court holds that the ALJ erred in some 14 respects, it is not clear from the record, as it currently stands, 15 whether Ms. Fuselier is disabled or whether she could perform work that 16 exists in sufficient quantity in the national economy. 17 Accordingly, IT IS HEREBY ORDERED: 18 1. Ms. Fuselier’s Motion for Summary Judgment, ECF No. 16, is 19 GRANTED. 20 21 2. is DENIED. 22 23 3. 24 25 The Commissioner’s Motion for Summary Judgment, ECF No. 17, This matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 4. 26 The Clerk’s Office is to enter Judgment in favor of Ms. Fuselier. 27 5. An application for attorney fees may be filed by separate 28 motion by Ms. Fuselier. ORDER - 20 1 6. 2 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 3 4 The case shall be CLOSED. Order and provide copies to counsel and ALJ Lori L. Freund. DATED this 13th day of January 2017. 5 6 ___ s/Edward F. Shea ________ EDWARD F. SHEA Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q:\EFS\Civil\2016\5053.Fuselier.ord.grant.ss.lc02.docx ORDER - 21
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