Castro v. Commissioner Social Security Administration, No. 3:2016cv00726 - Document 16 (D. Or. 2017)

Court Description: OPINION and ORDER - The Commissioner's decision is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. IT IS SO ORDERED. DATED this 10th day of July 2017, by United States Magistrate Judge John V. Acosta. (peg)

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Castro v. Commissioner Social Security Administration Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION RAIMUNDO AMBROS CASTRO, Plaintiff, Case No.: 3:16-CV-00726-A C OPINION AND ORDER v. NANCY BERRYHILL, Commissioner of Social Security, Defendant. A COSTA, Magistrate Judge: Raimundo Castro ("plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act"). 1 All parties 1 Plaintiff filed two opening briefs, ECF Nos. 12 and 13. After review, this court finds the substantive arguments appear identical. In this Opinion and Order the court will refer to ECF No. 13, Plaintiffs Memorandum in Support of the Petition for Review filed on November 10, 2016, as "Pl. 's Page 1 - OPINION AND ORDER have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. Civ.P. 73 and28U.S.C. § 636(c). Basedonacarefulreviewoftherecord, the Commissioner's decision is affirmed in part, reversed in part, and remanded for fmiher administrative proceedings. Procedural Background On October 18, 2012, plaintiff applied for DIB, and on November 16, 2012, plaintiff applied for SSL (Tr. 200-15.) In both applications plaintiff alleges disability as ofAugust 1, 2012. (Tr. 200, 207.) The Commissioner denied his applications initially and upon reconsideration. (Tr. 74-87, 92-127.) On October 4, 2013, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative hearing was held on June24, 2014. (Tr. 39-65, 154-55.) After the hearing, theALJ issued an unfavorable decision on September 15, 2014, finding plaintiffnot disabled. (Tr. 19-32.) The Appeals Council denied plaintiff's subsequent request for review, makingthe ALJ's decision final. (Tr. 1-4.) This appeal followed. Plaintiff argues that the ALJ erred at step two by: (1) failing to provide a clear and convincing reason to reject his subjective symptom testimony; and (2) improperly evaluating the medical opinions of Dr. Drake Duane, Dr. Shannon Tromp, Dr. Aaron Bowen, non-examining state agency psychologists, and Mr. Thomas Kruzel. Factual Background Born on January23, 1964, plaintiff was 48 years old on the alleged onset date of disability and 50 years old at the time of the hearing. (Tr. 44.) He completed his GED and has past work as a route delivery driver, a motor coach driver, an alarm installer and troubleshooter, and a mechanical Opening Br." Page 2 - OPINION AND ORDER repairer/worker. (Tr. 61-62, 254.) Plaintiff alleges disability due to depression, attention deficit disorder ("ADD"), and osteoarthritis. (Tr. 74, 81, 92, 110.) \\\\\ Page 3 - OPINION AND ORDER Standard of Review The comt must affitm the Commissioner's decision ifit is based on proper legal standards and the findings are suppo1ted by substantial evidence in the record. Hammockv. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than amere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to suppo1t a conclusion." Richardson v. Perales, 402 U.S. 3 89, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner'sJconclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its]judgmentforthe ALJ's." Massachiv. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted). The initial burden ofproofrests upon the claimant to establish disability. Howardv. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically dete1minable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissionerdetetmines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). Ifso, the claimant is not disabled. At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment orcombinationofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). Page 4 - OPINION AND ORDER If the claimant does not have a medically determinable, severe impairment, he is not disabled. At step three, the Commissioner detetmines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). Ifthe claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 4 l 6.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966. The ALJ's Findings At step one of the five-step process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 21.) At step two, theALJ determined that plaintiff had the following medical detenninable impairments: "hypertension, hypercholesterolemia, diabetes, right shoulder tendinitis, obesity, speech fluency disorder-stutter, mood disorder and attention deficit disorder." (Id.) At the same step the ALJ found that plaintiff"does not have an impairment or combination ofimpairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination ofimpairments." (Id.) Based on this finding, the ALJ detetmined that Page 5 - OPINION AND ORDER plaintiff was not disabled within the meaning ofthe Act. (Tr. 29.) The ALJ did not proceed to step three. Discussion Plaintiff argues thatthe ALJ eJTed at step two by: (I) failing to provide a clear and convincing reason to reject his subjective symptom testimony, and (2) failing to reasonably evaluate the medical opinions in the record. (Pl.'s Opening Br. 12-26.)2 1 Plaintiffs Symptom Testimony Plaintiff argues the ALJ failed to provide a clear and convincing reason to reject his symptom testimony. (Pl.'s Opening Br. 22-26, Pl.'s Reply Br. 2-3.) If"there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chafer, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion thatthe claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shala/a, 12 F Jd 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). Examples of clear and convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his 2 As the Commissioner notes, although plaintiff alleges disability due to physical and mental impairments, he challenges only the ALJ' s findings regarding his mental impairments on appeal. Def. Br. 5. Because plaintiff makes no argument concerning the severity of his physical impairments, the court limits its discussion to the mental impairments at issue. Page 6 - OPINION AND ORDER testimony and his conduct, daily activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007);Lightv. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ found Dr. Bowen's "diagnosis ofmalingering to be persuasive evidence ofthe claimant's lack of credibility regarding his allegations." (Tr. 30.) Evidence of malingering is sufficient to suppo1t a negative credibility finding. See Benton ex rel. Benton v. Barnhart, 331F.3d1030, 1040-41 (9th Cir. 2003) (an ALJ can reject plaintiffs testimony either through evidence ofmalingering or expressing clear and convincing reasons for doing so). Plaintiff argues the ALJ "did not accept this finding ofmalingering," and was still required to give a clear and convincing reason for discrediting his symptom testimony. (Pl. 's Reply Br. 2.) The court disagrees, finding the ALJ did accept Dr. Bowen's finding of malingering. However, even if the ALJ failed to accept Dr. Bowen's finding, this coutt finds no eirnr because the ALJ providednUlllerous clear and convincing reasons for discrediting plaintiffs subjective symptom testimony. Here, the ALJ found plaintiffs statements concerning the "intensity, persistence and limiting effects of' plaintiffs symptoms "not entirely credible" because: (1) plaintiffgave inconsistent statements concerning his alleged impairments; (2) plaintiffs impairments were stable on medication; (3) there was a lack of medical evidence to suppmt plaintiffs allegations; (4) plaintiffs activities of daily living were inconsistent with his alleged physical and inental symptoms; (5) plaintiff owed back taxes andhad a lien placed on his checking account; (6) plaintiff left his job for reasons unrelated to his disability, and (7) plaintiff had an "unpersuasive appearance and demeanor" at the ALJ hearing. (Tr. 23-32.) Page 7 - OPINION AND ORDER A. Inconsistent Statements Concerning Alleged Impairments First, the ALJ discredited plaintiff's symptom testimony because she found he gave "inconsistent statements regarding his stutter," noting that despite plaintiffs claims the stutter "does not limit him." (Tr. 23.) Plaintiffs inconsistent statements are a clear and convincing reason for rejecting his subjective symptom testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (inconsistencies between a plaintiff's symptom testimony and the medical record can serve as a clear and convincing reason to discredit a plaintiffs symptom testimony). The record supports the ALJ' s findings, because some medical providers noted plaintiff's stutter caused difficulties with work, while others noted no stutter at all. (See Tr. 408, 445, 479, 486, 493-94, 514, 581, 599-600, 610-11, 637, 639, 646, 665, 672, 678, 684.) This inconsistency is a clear and convincing reason for discrediting plaintiffs symptom testimony. B. Impairments Stable on Medication Next, the ALJ discredited plaintiff's subjective symptom testimony because she found plaintiff's mental impairments were "stable on medications." (Tr. 23.) The ALJ referenced progress notes from September 19, 2012 where Dr. Drake Duane wrote plaintiff's oral verbal fluency was improved. (Tr. 25.) "Impairments that can be controlled effectively with medication are not disabling." Warre v. Comm 'r of Soc. Sec. Adm in., 4 39 F.3d 1001, 1006 (9th Cir. 2006) (citations omitted). Indeed, the medical record reflects plaintiff showed improvement in his speech dsyfluency while taking medication. (Tr. 474.) Although Dr. Duane did note on September 19, 2012, that plaintiff's ADD was only "partially repaired," and medication was "not effective enough to improve fluency or his behavioral management," he later found, on April 7, 2014, that plaintiffs verbal fluency had improved again with medication. (Tr. 474, 665.) Additionally, plaintiff testified at the June 24, 2014 hearing that he would not be able to function without Page 8 - OPINION AND ORDER his medication. (Tr. 50.) The couit finds this evidence supports the ALJ' s finding that plaintiffs mental impairments were controlled by medication, and that this is a second clear and convincing reason for rejecting plaintiffs subjective symptom testimony. C. Lack ofMedical Evidence Next, the ALJ essentially found there was a lack ofmedical evidence to support plaintiff's alleged mental impainnents, specifically noting that plaintiff"received infrequent treatment since 2002" for his mental health symptom complaints and had "no history of psychiatric hospitalization" for his mental health impai:tments. (Tr. 23.) Additionally, she noted that although plaintiff described a "hist01y of seizure-like activities" he was never diagnosed or treated for a "f01mal seizure disorder." (Id.) "Although lack of medical evidence cannot form the sole basis for discrediting pain testimony, it is a factor that the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, an independent review of the record supports at least one of the ALJ' s findings. Although plaintiffreceived only infrequenttreatment for his mental health symptoms since 2002, a Januaiy 2015 letter from Dr. Duane explained the inconsistency oftreatment was "pait ofthe current regulations for managing patients receiving medications for attention disorder in the state of Arizona, and is commonplace throughout the United States." (Tr. 513-14, 567-68, 597-616, 661-73, 706.) "[A]lthoughaconservativecourse of treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimai1t' s credibility where the claimant has a good reason for not seeking more aggressive treatment." Carmickle v. Comm 'r, 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)). The comt rejects this reason for discrediting plaintiffs testimony. The record does show, however, that plaintiffhad no psychiatric hospitalization or diagnosis of a Page 9 - OPINION AND ORDER formal seizure disorder. Despite the previously discussed error in the ALJ' s findings, the error is harmless because the ALJ provided another clear and convincing reasons to discredit plaintiff's symptom testimony. See Batson v. Comm 'r, 359F.3d1190, 1197 (9th Cir. 2004) (theALJ's overall credibility decision may be upheld even if not all ofthe ALJ's reasons forrejectingthe claimant's testimony are upheld). Thus, there is no en-or. D. Activities of Daily Living Next, the ALJ discredited plaintiff because she found his activities ofdaily living were inconsistent with his allegations of disability. (Tr. 23 .) "In reaching a credibility dete1mination, anALJ may weigh consistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors." Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009). The ALJ found plaintiff was relatively active in his activities of daily living, noting his ability to volunteer up to ten hours a day with St. Vincent de Paul, living alone, driving independently, and "assist[ing] an elderly friend with medical appointment transportation and other needs." (Tr. 23 .) The ALJ also noted that plaintiffs reports to Dr. Austin included that he was independent in "managing his pape1work, and paying bills," was "spending tinie atthe libraiy researching information, and stated he was engaged in a legal complaint against Walt Disney World for wrongful termination." (Tr. 24.) Plaintiff also reported frequently using the hltemet, reading, talking with friends over the phone, and attending church services, which the ALJ found was "inconsistent with his alleged limitations in memory and concentration." (Id.) Finally, the ALJ found plaintiffreported to Dr. Tromp thathe was "reading and trying to learn as much as possible," which the ALJ found was "inconsistent with his reported difficulties concentrating." (Tr. 26.) The ALJ's findings regarding plaintiff's activities of daily living are fully supported by the record. Page 10- OPINION AND ORDER Plaintiff lived independently, assisted an elderly friend, attended church, read and researched at the librruy, volunteered at St. Vincent de Paul, and was filing a lawsuit against Walt Disney World. (See Tr. 264, 268, 308-10,324-28,333-356,370,374-75,378,385-88,394-95,444,447,464,475,479,482,651,662, 665, 676-77 .) The ALJ reasonably found plaintiffs activities of daily living were inconsistent with his alleged disability allegation, and thus was another clear and convincing reason for discrediting plaintiffs symptom testimony. E. Plaintiff's Back Taxes and Lien Placed on Checking Account Next, the ALJ found plaintiffs reports that he owed back taxes to the state and had a lien placed on his checking account were "matters which do not bolster his credibility." (Tr. 26.) The court rejects this reason for discrediting plaintiffs symptom testimony. SeeAlt01fer v. Colvin, No. 3: 14-cv-O 1933-HZ, 2015 WL 9255544, at *8 (D. Or. Dec. 18, 2015); Ratto v. Secy, 839 F. Supp. 1415, 1428-29 (D. Or. 1993) (plaintiffs motive of pecuniary gain is an improper basis on which to determine that subjective complaints are not credible.) F Leaving His Job for Reasons Unrelated to Disability Next, the ALJ found plaintiff stopped working forreasons unrelated to his disability, noting that plaintiff"told Dr. Tromp that he last worked in September 2012, and that job ended when that company went out ofbusiness." (Tr. 27.) The ALJ found this showed plaintiff"stopped working for non-medical reasons, and that he would have been able to continue working despite his alleged impaitments and associated restrictions." (Id.) See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (claimant's pain complaints were not credible because he reported at the administrative hearing, and also to his doctors, that he left his job because he was laid off, not because he was injured.) The court fmds the ALJ' s Page 11 - OPlNlON AND ORDER findings were supported by the record and this is another clear and convincing reason for discrediting plaintiff's subjective symptom testimony. G. Unpersuasive Appearance and Demeanor at ALJ Hearing Finally, the ALJ discredited plaintiffs symptom testimony based on the plaintiffs "generally unpersuasive appearance and demeanor while testifying at the hearing." (Tr. 32.) The ALJ wrote that plaintiffs "stutter was intermittent, minimal and mild, at best," but did note that "this observation is only one among many being relied on in reaching a conclusion regarding the credibility ofthe claimant's allegations." (Id.) The practice of"sit and squitmjurisprudence" is generally disfavored, and "may not form the sole basis for discrediting a claimant's testimony." See Perminter v. Heckler, 765 F .2d 870, 872 (9th Cir. 1985); Orn, 495 F.3d at 639. However, the "inclusion ofthe ALJ's personal observations does not render the decision improper." Verduzco v. Apfel, 188F.3d1087, 1090 (9th Cir. 1999). TheALJ's personal observations are valid when the claitnant manifests symptoms inconsistent with the medical evidence ofhis testimony. Id. The ALJ' s personal observations ofplaintiff are valid because they show symptoms inconsistent with more severe stuttering described by plaintiff. Therefore, the comi finds this to be a clear and convincing reason to discredit plaintiff. Although the court does not find all of the reasons offered by the ALJ to be clear and convincing reasons for rejecting plaintiffs symptom testimony, these eirnrs are harmless because the ALJ provided at least one clear and convincing reasons to discredit plaintiffs symptom testimony. See Batson, 359 F.3d at 1197 (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld.) In sum, the ALJ provided a clear and convincing reason for Page 12 - OPINION AND ORDER discrediting plaintiffs symptom testimony concerning the severity of his symptoms. There is no etTor. IL Medical Opinion Evidence Next, plaintiff argues the ALJ etTed when evaluating the medical opinion evidence of Dr. Dralce Duane, Dr. Shannon Tromp, Dr. Aaron Bowen, the non-examining state agency psychologists, and Mr. Thomas Kmzel. (Pl. 's Br. 12-22.) Specifically, plaintiff argues thatthe ALJ etTed by: (1) discrediting the medical opinions of Dr. Duane, Dr. Tromp, and Mr. Kruzel, and (2) giving "significant weight" to the medical opinions of Dr. Bowen and the non-examining state agency psychologists. (Id.) The court addresses each of plaintiffs arguments in turn. A. Acceptable Medical Opinions-Treating, Examining, and Non-Examining Physicians 1. Dr. Drake Duane, treating neuropsychiatrist First, plaintiff argues the ALJ etTed by only giving "little weight" to the medical opinions oftreating neuropsychiatrist, Dr. Drake Duane. (Pl.'s Opening Br. 14.) "The ALJ is responsible for resolving conflicts in the medical record." Carmickle, 533 F.3d at 1164. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do nottreattheclaimant[.]" Turnerv. Comm 'r, 613F.3d1217, 1222 (9th Cir. 2010). An ALJ may reject the uncontradicted medical opinion of a treating or examining physician only for "clear and convincing" reasons suppmted by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 821, 830-31 (9th Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by providing "specific and legitimate reasons that are supported by substantial evidence." Id. Dr. Duane began treating plaintiff in 2002 for attention deficit disorder ("ADD"), reactive Page 13 - OPINION AND ORDER depression, and developmental and language dysfluency. (Tr. 598, 600.) Plaintiff continued to receive treatment from Dr. Duane over the years, typically having appointments every six to twelve months. (Tr. 567-68, 597-616, 661-73, 705-07.) On September 19, 2012, Dr. Duane noted that plaintiff had an improved Letter Cancellation score with only "l error in the left hemi space," and a low GAF score of 60, which was based on plaintiffs "recu11'ent depression." (Tr. 4 74.) Overall, he opined that plaintiff"is now impaired sufficiently that he should be considered disabled to qualify for benefits under Social Security Disability." (Id.) On October 4, 2012, Dr. Duane wrote a letter on plaintiffs behalf, noting his low GAF score, high Hamilton Depression Rating Scale score, and opined thatplaintiff"is conshued as disabled for employment." (Tr. 568.) On May 13, 2013, Dr. Duane completed a Psychiatric/Psychological Impairment Questionnaire. (Tr. 609-16.) He diagnosed plaintiff with ADD, developmental and language disorder, and reactive depression. (Tr. 609.) He noted plaintiff had poor memory, sleep disturbance, mood disturbance, anhedonia or pervasive loss of interest, difficulty thinking or concentt·ating, decreased energy, and dysfluent speech. (Tr. 610.) He assessed marked limitations in plaintiffs ability to maintain attention and concentration for long periods oftime, mild limitations in his ability to understand and remember one or two step instructions, moderate limitations in his ability to carry out detailed instructions, and moderate limitations in his ability to interact appropriately with the public. (Tr. 612-13 .) Dr. Duane overall found plaintiff would be absent from work about two to three times per month. (Tr. 616.) On April 7, 2014, Dr. Duane's treatment notes stated plaintiffwas volunteering at St. Vincent de Paul. (Tr. 665.) He assessed a GAF score of50 and a Hamilton Depression Scale score of23. (Id.) He also found plaintiffhad a high error rate on the Letter Cancellation test and was advised to continue on Page 14- OPINION AND ORDER his medications, which included Ritalin LA and Piracetam. (Id.) On May I, 2014, Dr. Duane wrote another letter on plaintiffs behalf noting thathe had seen plaintiff every six-to-twelve months since July 2002, and found he "was not responding to treatment as well as originally predicted." (Tr. 672.) He opined plaintiff has "positive clinical findings of sleep and mood disturbance, poor memory, decreased energy, anhedonia, difficultythinldng or concentrating, oral language interruptions, and despondency," and "[h]is primary symptoms include poor concentration, impaired speech fluency, and depression." (Id.) Dr. Duane opined that plaintiff was "markedly limited in his ability to maintain attention and concentration for extended periods oftime, due to his attention deficit diagnosis," would have difficulties related to his verbal dysfluency, and his "pain, fatigue, and other symptoms" would "regularly interfere with his attention and concentration." (Tr. 672-73.) Here, the ALJ gave "little weight" to Dr. Duane's opinions finding "the greaterobjective record fails to support the finding that the claimant has moderate mental limitations, and his assertion that the claimant is disabled addresses an issue reserved to the Commissioner." (Tr. 28.) Next, the ALJ noted that Dr. Duane saw plaintiff every six to twelve months and the "infrequency of his direct observation, care and treatment" ofplaintiffmade his opinion "less reliable." (Id.) Finally, the ALJ wrote Dr. Duane "provided no specific work limitations and merely checked boxes on the form," and that "[h]is opinion otherwise provides no explanation for his assessed limitations." (Tr. 29.) The ALJ was required to give a specific and legitimate reason for discrediting Dr. Duane's opinion because it was inconsistent with theopinionofDr. Aaron Bowen, who found plaintiffwas malingering. (Tr. 640-53.) See Bayliss, 427 F.3d atl216 (the contradicted opinion of a treating or examining physician can be rejected with specific and legitimate reasons that are supported by substantial evidence). First, the ALJ Page 15 - OPINION AND ORDER reasonably rejected Dr. Duane's assertion that plaintiffwas "disabled" noting that this issue was "reserved to the Commissioner." (Tr. 28.) "The law reserves the disability dete1mination to the Commissioner." McLeodv. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). However, the ALJ must address theremaining parts of a doctor's opinion and provide a legally sufficient reason for discrediting the doctor's medical opinion. See Schlegal v. Colvin, 1:13-cv-00517-KI ,2014 WL 1386349, at *4 (D. Or. April 9, 2014). 1bis cornt finds ths ALJ erred in discrediting the remaining portion of Dr. Duane's medical opinion by failing to provide specific and legitimate reasons supported by substantial evidence. The ALJ noted "the greater objective record fails to support the finding that claimant has moderate mental limitations," but failed to discuss what specific medical evidence she was relying on when making this conclusion. (Tr. 30.) Because the cornt cannot infer what specific objective evidence the ALJ was referencing this court finds the ALJ erred. Next, this court finds Dr. Duane's infrequent treatment was not a specific and legitimate reason for discrediting his medical opinion. On January 19, 2015, Dr. Duane submitted a letter explaining the infrequency of his treatment was based upon "crnTent regulations for managing patients receiving medications for attention disorder." (Tr. 706.) Although length of treatment and the frequency of examination are evaluated when weighing the medical opinions of treating physicians, Dr. Duane's infrequent treatment ofplaintiff was clearly explained; therefore, the court finds the infrequency ofDr. Duane's treatment is not a specific and legitimate reason for discrediting his medical opinion. 20 C.F.R. §§ 404. 1527(c)(2)(i-ii), 416. 927( c)(2)(i-ii). Finally, the ALJ' s finding that Dr. Duane "merely checked boxes on the form" and "provides no explanation for his assessed limitations" is not supported by the evidence. (Tr. 29.) An ALJ may Page 16- OPINION AND ORDER permissibly reject "check-off reports" when they"do not contain any explanation of the bases of their conclusions." Crane v. Shalala, 76 F.3d 251 (9th Cir. 1996). However, if a check-off questionnaire is "based on significant experience ... and supported by numerous records[, it is] entitled to weight than an othe1wise unsupported and unexplained check-box form would not merit." Garrisonv. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). This court finds the ALJ' s conclusion that Dr. Duane provided no explanation for his assessed limitations ofplaintiffin the psychiatric and psychological impairment form he completed on May 13, 2013 is not persuasive. Dr. Duane treated plaintiff continuously since 2002 and medical evidence ofrecord shows he pe1formed consistent testing ofplaintiffto evaluate his mental abilities. (Tr. 567-68, 597-616, 661-73, 705-07.) Overall, the court finds the ALJ reasonably discredited Dr. Duane's opinion that plaintiff was "disabled," but failed to provide a specific and legitimate reason for rejecting the remainder for Dr. Duane's medical opinion. This is harmful en-or. B. Dr. Shannon Tromp, Examining Psychologist Next, plaintiff argues the ALJ failed to provide a legally sufficient reason to reject the medical opinion of examining psychologist, Dr. Shannon Tromp. (Pl. 's Opening Br. 21-22.) On May 22, 2014, Dr. Tromp performed a clinical interview ofplaintiff and completed a Mental Impaiiment Questionnaire. (Tr. 675-87 .) During the clinical interview Dr. Tromp noted that plaintiff had "a frequent stutter" but was "fully comprehensible," and had "adequate" attention and concentration. (Tr. 678.) Dr. Tromp also administered a Mini Mental Status Exam ("MMSE"), upon which plaintiff scored a 30/30. (Id.) Overall, she wrote that she "did not feel that [plaintiff] is malingering," but "[t]he fact that he is trying hard to prove [his disability] and is not subtle about it actually argues more for impaired social Page 17 - OPINION AND ORDER judgment than malingering in this case." (Tr. 680.) She did note that plaintiff exhibited depressive symptoms, could care for himselfindependently, "was caring for a friend regularly," and "volunteers regularly." (Tr. 681.) It was her medical opinion that plaintiff would "have trouble with social co111111unication and judgment, slow processing speed and poor stress tolerance." (Id.) She found he would be "able to manage simple and detailed tasks," but would "have trouble with complex tasks and problem solving." (Id.) On the Mental Impaiiment Questionnaire Dr. Tromp diagnosed plaintiff with ADD-inattentive, mood disorder, childhood onset speech fluency disorder, and alcohol and amphetamine abuse. (Tr. 683.) She described plaintiff's "poor stress tolerance" and "difficulty with social judgment and co111111unication," overall writing that "stress exacerbates poor co111111unication, social comprehension, interpersonal conflict, anxiety and paranoia result." (Tr. 685.) She found plaintiff would have moderate-to-marked limitations in maintaining attention and concentration for extended periods, and moderate liinitations in understanding and remembering detailed instrnctions and interacting appropriately with the public. (Tr. 686.) Finally, she found plaintiffwould likely miss more than three days per month if exposed to high stress situations, but would miss only one day per month if his stress was low. (Tr. 687 .) Here, theALJ considered Dr. Tromp'smedicalopinion, butgaveit"littleweight." (Tr. 29.) When discrediting Dr. Tromp' s opinion the ALJ found "she ha[d] no treating relationship with the [plaintiff! and her examination and report were paid for by counsel in order to generate evidence, not to provide treatment." (Id.) Additionally, the ALJ found Dr. Tromp's opinion was "highly reliant on the [plaintiffj's subjective complaints, which are not fully credible." (Id.) The ALJ was required to give a specific and legitimate reason for discrediting Dr. Tromp' s opinion Page 18 - OPINION AND ORDER because it was inconsistent with the opinion of Dr. Bowen. (Tr. 640-53 .) See Bayliss, 427 F Jd at 1216. First, the court finds the ALJ' s finding that plaintiffs counsel hired Dr. Tromp to evaluate him is not a specific and legitimate reason for rejecting her medical opinion. See Reddickv. Chater, 157 F Jd 715, 726 (9th Cir. 1998) ("[T]he mere fact that a medical report is provided at the request of a claimant's counsel, or more broadly, the purpose for which an opinion is provided, is not a legitimate basis for evaluating the reliability ofthe report.") However, the ALJ provided a specific and legitimate reason for discrediting Dr. Tromp's medical opinion when she found Dr. Tromp's medical opinion was "highly reliant on the [plaintiffj's subjective complaints." (Tr. 29.) See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (a specific and legitimate reason for rejecting a treating physician's opinion is that the opinion is premised on a claimant's subjective complaints, which the ALJ had properly discredited.) Because the ALJ provided at least one specific and legitimate reason for discrediting the medical opinion of Dr. Tromp, this court finds no enor. C. Dr. Aaron Bowen, Examining Psychologist Next, plaintiff argues the ALJ ened by giving "significant weight" to the medical opinion of examining psychologist, Dr. Aaron Bowen. (Pl. 's Opening Br. 17-18.) "[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence." Tommasetti, 533 F.3dat 1041-42 (citingAndrewsv. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). When "the record contains conflicting medical evidence, the ALJ is charged with detennining credibility and resolving the conflict .... " Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)(quotingBenton v. Barnhart, 331F.3d1030 , 1040 (9th Cir. 2003)). Dr. Bowen performed a psychological evaluation of plaintiff on July 20, 2013 and diagnosed Page 19 - OPINION AND ORDER plaintiffwith malingering. (Tr. 640-53.) Despite plaintiffs complaints ofADHD and a stutter, Dr. Bowen noted thathe did not observe any stutter upon examination. (Tr. 640, 646.) Overall, Dr. Bowen found plaintiff was "feigning his mental illness-he reported all kinds ofissues, but presented as completely asymptomatic." (Tr. 641.) The ALJ gave "significant weight" to the medical opinion ofDr. Bowen that plaintiff"had no mental limitations." (Tr. 30.) The ALJ "considered [plaintiff!' s complaints regarding Dr. Bowen[' s] examination and manner," but found "the mmative report appears to be ve1y detailed" and plaintiffs "mini mental status examination of30/30 tends to show that contrary to his allegations, he has no apparent cognitive deficits." (Id.) Finally, the ALJ found Dr. Bowen's opinion was "consistent with the [plaintiff]' s activities of daily living, which show greater activities than alleged." (Id.) Although plaintiff disagrees with the ALJ's interpretation of the medical record,"[w]hen the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198. The ALJ's findings are reasonable and supported by substantial evidence, so there is no error. D. Non-Examining State Agency Psychologists Next, plaintiff argues the ALJ e11'ed by giving significant weight to the medical opinion ofthe nonexaminingpsychologists. (Pl. 's Opening Br. 18-19.) Specifically, plaintiffargues the "opinions from nonexamining physicians are not, standing alone, substantial evidence that justifies the rejection of opinions of treating sources," and that the non-examining psychologist "reviewed [plaintiff]' s file on July 23, 2013 before any ofthe treatment records from the relevant period at issue from Dr. Duane were entered into the record. (Id.) "The opinion of anon-examining medical advisor cannot by itself constitute substantial evidence Page 20 - OPINION AND ORDER that justifies the rejection ofthe opinion of an examining or treating physician." Morgan, 169 F .3d at 602 (citations omitted). However, the opinions of non-treating or non-examining physicians may serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record. Id. at 600. Here, the ALJ gave "greater weight" to the opinions of the state agency reviewing physicians regarding plaintiffs residual functional capacity noting that "their opinions were not inconsistent with the greater objective record, particularly regarding their finding that the claimant does not have an impahment or combination ofimpairments that significantly limit his physical and mental ability to do basic work activities." (Tr. 30.) The court finds the ALJ' s reasons for accepting the opinions ofthe non-examining physicians was reasonable. Here, the ALJ did not accept the non-examining physicians' opinions as the only substantial evidence forrejectingthe other medical opinions oftreating and examining physicians, but considered their opinions and the opinions ofnumerous other treating and examining physicians. (See Tr. 23-30.) The ALJ's evaluation of this medical evidence was reasonable. There is no error. B. Non Acceptable Medical Sources I. Dr. Thomas Kruzel, treating naturopath Finally, plaintiff argues the ALJ erred by "failing to properly consider the opinions from treating naturopath Dr. Kruzel." (Pl.'s Opening Br. 20.) Evidence from "other sources," including "nmse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists ... cannot establish the existence ofamedically-determinable impairment" under the Act. SSR 06-03p, at *2. However, opinions from these "not acceptable" medical sources "are important and should be evaluated on key issues such as Page 21 - OPINION AND ORDER impairment severity and functional effects.... " SSR 06-03p, at *3. Before rejecting evidence from "other sources," the ALJ must give germane reasons for doing so. Molinav. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Plaintiff saw naturopath, Dr. Kruzel, on February 21, 2013, for complaints offatigue and attention deficit disorder. (Tr. 618.) On March 27, 2013, Dr. Kruzel completed a Multiple Impairment Questionnaire that contained his diagnosis that plaintiff suffered from fatigue, diabetes, hypertension, and attention deficit disorder, and also documented plaintiffs complaints oflow back pain. (Tr. 620-27 .) Mr. Kruzel opined that plaintiffs fatigue was an "8-9" or "moderately severe to severe," his symptoms would increase if placed in a competitive work environment, and his "pain, fatigue, or other symptoms" would frequently interfere with his attention and concentration. (Tr. 622, 624-25.) Finally, he wrote that plaintiffs impainnents were likely to produce "good days" and "bad days," and that plaintiffwould likely be absent from work more than three times a month because of his impairments or treatment. (Tr. 626.) On March 28, 2013, Dr. Kruzel wrote a letterin which he provided his overall assessment that plaintiff"is incapable of performing any full time repetitive work." (Tr. 618.) Here, the ALJ "considered Dr. Krnzel 's opinion that the claimant is 'incapable of perfmming any full time repetitive work,"' but overall detetmined that Dr. Kruzel' s statements that plaintiffwas "disabled," "unable to work," "can or cannot perform a past job,"or "meets a Listing" were "not medical opinions but ... administrative findings dispositive ofacase" and were "reserved to the Commissioner." (Tr. 30.) The ALJ further noted that"[o]pinions on issues reserved to the Commissioner can never be entitled to controlling weight, but must be carefully considered to determine the extent to which they are suppmied by the record as a whole or contradicted by persuasive evidence (Social Security Ruling 96-Sp )." (Id.) Page 22 - OPINION AND ORDER After evaluating the remainderofDr. Krnzel's statements, the ALJ dismissed Dr. Kruzel's opinion because she found his opinion was "not consistent with the evidence as a whole." (Id.) Additionally, the ALJ discredited Dr. Krnzel' s statements because "naturopathic doctors are not acceptable medical sources" and he was "not a long term treater" of plaintiff. (Id.) The ALI reasonably discredited Dr. Kruzel' s statements that plaintiffwas "disabled" and "unable to work," properly finding that such conclusions are "reserved to the Commissioner." (Id.) See 20 C.F .R. §§ 404.1527( d)(l ), 416.927(d)(l) (concluso1y statements that a claimant is "disabled" are not medical opinions under the Act). But the ALJ still must provide a ge1mane reason for rejecting the remaining portion ofDr. Kruzel' s opinion. Here, the ALJ found Dr. Kruzel' s opinion was "not consistent with the evidence as a whole" (tr. 30), but the court finds this is not a germane reason for rejecting Dr. Kruzel' s medical opinions because the ALJ failed to explain the specific evidence she relied upon in making this finding. The ALJ erred by rejecting Dr. Kruzel's opinion because he was not an acceptable medical source or a long-term treater. Although the opinion evidence from a non-acceptable medical source cannot establish the existence of a medically-determinable impairment under the Act, these opinions "are important and should be evaluated on key issues such as impairment severity and functional effect .... " SSR 0603p, at *3. Merely finding Dr. Kruzel to not be an acceptable medical source is not a ge1mane reason to discredit his opinion. Additionally, that Dr. Kruzel is not a long-term treater ofplaintiffwas not a germane reason for rejecting his opinion, but a factor that the ALJ must consider when "weighing medical opinions" from a non-treating source. See SSR 06-03p at *3. The ALJ was required to evaluate Dr. Kruzel's opinion and provide a germane reason for rejecting it, which the ALJ failed to do. Remand Page 23 - OPINION AND ORDER The decision "whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court." Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Generally, "[w]hen an ALJ' s denial of benefits is not supported by the record, 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."' Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012), quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, an award of benefits can be directed "where the record has been fully developed and where further administrative proceedings would serve no useful purpose." Smolen, 80 F .3d at 1292. Remand for calculation ofbenefits is only appropriate where the credit-as-true standard has been satisfied, which requires: (I) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison, 759 F.3d at 1020 (citations omitted). Here, the ALJ e1Ted when evaluating the medical opinion evidence of Dr. Duane and Dr. Kruzel. The ALJ' s decision therefore is not supported by substantial evidence. When considering the record as a whole, this court finds remand for further proceedings appropriate because outstanding issues remain for resolution before a determination of disability can be made. Specifically, even crediting the medical opinions ofDr. Duane and Dr. Kruzel, the proceeding below left unclear the severity ofplaintiff's mental impairments and whether he will be able to perform other work in the national economy with his mental impairments. On remand, the ALJ should consider the e1Toneously rejected medical evidence from Dr. Duane and Dr. Kruzel and continue the sequential evaluation. Page 24 - OPINION AND ORDER Conclusion Based on the foregoing discussion, the Commissioner's decision is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. IT IS SO ORDERED. DATED this of July 2017. Page 25 - OPINION AND ORDER
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