ROSANNA MALOUF PETERSON, United States District Judge.
BEFORE THE COURT are Plaintiff John Anthony Norris's Motion for Summary Judgment,
John Anthony Norris protectively filed an application for Disability Insurance Benefits (DIB) on December 13, 2006, and an application for Supplemental Security Income (SSI) on December 31, 2006. ECF No. 9-2 at 12, Tr. 11. In both applications, Mr. Norris alleged disability beginning June 1, 2004. Id. Mr. Norris' applications were denied initially on April 13, 2007, and upon reconsideration on June 19, 2007. Id. Mr. Norris requested a hearing, which was held via videoconference before Administrative Law Judge ("ALJ") Gene Duncan on September 18, 2009. Id. Mr. Norris was present and represented by counsel Randy Fair. Id. The ALJ heard testimony from medical expert Marian Martin, Ph.D., and vocational expert ("VE") Polly A. Peterson. Id.
Subsequent to the hearing, a problem was discovered with the hearing record. Id. As a result, the Appeals Council remanded the case on February 17, 2012. Id. The Appeals Council vacated the ALJ's prior decision and directed the ALJ to conduct a supplemental hearing. Id.
A supplemental hearing was held via videoconference before ALJ Duncan on December 4, 2012. Id. Mr. Norris was present and represented by counsel Randy Fair. Id. The ALJ heard testimony from medical expert Stephen Rubin, Ph.D., and VE Thomas A. Polsin. Id.
The ALJ found that Mr. Norris had not engaged in substantial gainful work, as defined in 20 C.F.R. §§ 404.1572(a) and 416.920(b), since June 1, 2004. ECF No. 9-2 at 15, Tr. 14. Further, the ALJ found that Mr. Norris had the following severe impairments as defined by 20 C.F.R. §§ 404.1520(c) and 416.920(c): degenerative disc disease, T-12 compression fracture (2004), depressive disorder, polysubstance abuse (in reported remission), personality disorder, attention deficit hyperactivity disorder/reading disorder, and somatoform disorder. Id.
However, the ALJ found that Mr. Norris did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526) and 20 C.F.R. Part 416, Subpart I, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). ECF No. 9-2 at 16, Tr. 15. The ALJ further found that Mr. Norris had the residual functional capacity ("RFC") to
ECF No. 9-2 at 17, Tr. 16.
Given Mr. Norris' age, education, work experience, and RFC, the VE testified that there were a number of jobs available in the national economy for an individual sharing his characteristics. ECF No. 9-2 at 24, Tr. 23. The ALJ then found that "the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." Id. The ALJ concluded that Mr. Norris was not under a disability as defined by the Social Security Act. Id. Mr. Norris's application was denied on January 17, 2013. ECF No. 9-2 at 9, Tr. 8.
Mr. Norris filed a request for review by the Appeals Council, which was denied on November 21, 2014. ECF No. 9-2 at 2, Tr. 1. Mr. Norris then filed a complaint in the District Court for the Eastern District of Washington on January 16, 2015, ECF No. 1, and the Commissioner answered the complaint on March 30, 2015. ECF No. 8. This matter is therefore properly before the Court pursuant to 42 U.S.C. § 405(g). Mr. Norris filed a motion for summary judgment on July 24, 2015. ECF No. 13. The Commissioner filed a cross motion for summary judgment on September 1, 2015. ECF No. 16. Mr. Norris filed a reply memorandum on October 29, 2015. ECF No. 21.
The facts of this case are set forth in the administrative hearing transcripts and record, ECF No. 9. Mr. Norris was 36 years old when he applied for DIB and SSI, 38 years old at the initial hearing, and 42 years old at the supplemental hearing. See ECF No. 9-2 at 12, Tr. 11. Mr. Norris worked a number of different jobs, including as a ski lift operator and construction worker, until 2004. See ECF No. 9-6 at 30-36, Tr. 405-411.
Congress has provided a limited scope of judicial review of a Commissioner's final decision. 42 U.S.C. § 405(g). A reviewing court must uphold the Commissioner's decision, determined by an ALJ, when the decision is supported by substantial evidence and not based on legal error. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401,
The reviewing court should uphold "such inferences and conclusions as the [Commissioner] may reasonably draw from the evidence." Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir.1965). On review, the court considers the record as a whole, not just the evidence supporting the Commissioner's decision. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.1989); see also Green v. Heckler, 803 F.2d 528, 530 (9th Cir.1986) ("This court must consider the record as a whole, weighing both the evidence that supports and detracts from the [Commissioner's] conclusion."). "[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir.1997).
It is the role of the trier of fact, not the reviewing court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400, 91 S.Ct. 1420. If evidence supports more than one rational interpretation, the reviewing court may not substitute its judgment for that of the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir.1987).
Under the Social Security Act (the "Act"),
42 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if his impairments are of such severity that the claimant is not only unable to do his previous work but cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). "Thus, the definition of disability consists of both medical and vocational components." Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir.2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). Step one determines if the claimant is engaged in substantial gainful activities. If the claimant is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activities, the ALJ, under step two, determines whether the claimant has a medically severe impairment or combination of impairments. If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 416.920(a)(4)(ii).
If the impairment is severe, the evaluation proceeds to step three, which compares the claimant's impairment to a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii); see also 20 C.F.R. §§ 404, Subpt. P, App. 1 and 416, Subpt. I, App. 1.
Before proceeding to step four, the claimant's RFC is assessed. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1). An individual's RFC is the ability to do physical and mental work activities on a sustained basis despite limitations from any impairments. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).
If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to step four, where the ALJ determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv) and 416.920(a)(4)(iv).
If the claimant cannot perform his previous work, the final step considers whether the claimant is able to perform other work in the national economy in light of his RFC, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v).
At step five, the initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.1971). The claimant satisfies this burden by establishing that a physical or mental impairment prevents him from engaging in his previous occupation. The burden then shifts to the Commissioner to show that (1) the claimant can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" which the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984).
Mr. Norris alleges that the ALJ committed reversible error by (1) improperly rejecting medical opinion evidence; (2) improperly determining that Mr. Norris was not credible; (3) improperly rejecting lay testimony; and (4) improperly determining under step five that Mr. Norris was not disabled. See generally ECF No. 13.
Mr. Norris argues that the ALJ both improperly rejected medical opinion evidence and failed to fully account for other, purportedly accepted, medical opinions when formulating the RFC. Id. at 5-27.
"[T]he Commissioner must provide `clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician." Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). If controverted, "the opinion of an examining doctor... can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. The same analysis applies to the medical opinions of treating physicians. Id. at 830. "[I]t is incumbent on the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding the physicians' findings." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988).
Concerning medical opinion evidence, "[t]he ALJ is responsible for resolving conflicts in medical testimony, and resolving ambiguity. Determining whether inconsistencies are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount the opinions... falls within this responsibility."
Dr. Marian Martin testified as an impartial medical expert at Mr. Norris' first hearing before the ALJ on September 18, 2009. ECF No. 9-2 at 107, Tr. 106. Dr. Martin reviewed the record in Mr. Norris' case prior to testifying during the hearing. ECF No. 9-2 at 108, Tr. 107. Dr. Martin opined that Mr. Norris suffered from major depressive disorder, antisocial personality disorder, and substance dependence (in remission). ECF No. 9-2 at 116, Tr. 115. Dr. Martin testified that, without factoring in drug and alcohol use, Mr. Norris would have mild functional limitations in activities of daily living and moderate difficulties maintaining social functioning, with concentration, persistence, and pace, carrying out activities within a schedule, maintaining regular attendance, working in coordination with others, and interacting with the public, supervisors, and coworkers. ECF No. 9-2 at 120, 122-23, Tr. 119, 121-22. Dr. Martin testified that Mr. Norris' limitations would increase from a "moderate" to a "marked" range with drug and alcohol use. ECF No. 9-2 at 121, Tr. 120. Dr. Martin testified that an individual with moderate limitations could do routine, simple work. ECF No. 9-2 at 126, Tr. 125.
Further, Dr. Martin testified that, due to Mr. Norris' social limitations, "he would probably do best in a work situation where he does ... you know, where he has minimal contact with other people and is as limited as possible with a supervisor." ECF No. 9-2 at 124, Tr. 123. Dr. Martin noted that Mr. Norris "would possibly get resentful if supervisors told him what to do. He would kind of want to do things his own way or on his own schedule and if he was ... if he were told to do it differently he'd get sort of resentful or irritated or angry." ECF No. 9-2 at 125, Tr. 124. Concerning interaction with supervisors, Dr. Martin concluded that Mr. Norris "would just kind of basically leave or just not come back to work." ECF No. 9-2 at 125, 128, Tr. 124, 127. Dr. Martin testified that, despite Mr. Norris' antisocial personality disorder, "[t]here are lots of people out in the world with personality disorders that do work." ECF No. 9-2 at 141, Tr. 140.
While the ALJ noted that Dr. Martin had testified at the first hearing, ECF No. 9-2 at 12, Tr. 11, the ALJ did not substantively address Dr. Martin's testimony in the January 17, 2013, decision. See generally ECF No. 9-2 at 12-25, Tr. 11-24. However, the ALJ did substantively address Dr. Martin's opinion and testimony in the prior decision, later vacated by the Appeals Council. ECF No. 9-3 at 18-19, Tr. 205-06. The ALJ accorded "significant weight to the competent hearing testimony of Dr. Martin due to her medical expertise, her familiarity with the Social Security regulations and the consistency of her testimony with the medical history, objective medical findings, and other medical opinions contained in the record." ECF No. 9-3 at 18, Tr. 205. While noting the "mild" and "moderate" limitations opined by Dr. Martin, the ALJ omitted any discussion of Mr. Norris' social limitations in interacting with the public, coworkers, and supervisors. See id. The ALJ ultimately included RFC limitations pertaining to interaction with coworkers and the public, but not as to supervisors. ECF No. 9-3 at 15, Tr. 202.
Mr. Norris alleges that (1) the ALJ erred by not addressing Dr. Martin's opinion in his second decision and (2) the error was not harmless as the ALJ did not address or incorporate all the limitations opined by Dr. Martin. ECF No. 13 at 8. The Commissioner, while conceding that the ALJ erred in failing to discuss the weight afforded Dr. Martin's testimony, argues that the ALJ committed harmless error as Dr. Martin's testimony is consistent
The ALJ is bound to "evaluate every medical opinion" submitted into evidence. 20 C.F.R. §§ 404.1527(c) and 416.927(c). As such, the ALJ erred by omitting any discussion of Dr. Martin's opinion from his supplemental decision.
The Commissioner insists that, although the ALJ erred, such error is harmless as the ALJ previously had relied on Dr. Martin's testimony to determine that Mr. Norris was not disabled. ECF No. 16 at 23. "A decision of the ALJ will not be reversed for errors that are harmless." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). An error is harmless when it is "inconsequential to the ultimate nondisability determination." Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.2006).
As discussed above, although the ALJ did discuss the majority of Dr. Martin's opinions as to Mr. Norris' functional limitations, see ECF No. 9-3 at 19, Tr. 206, the ALJ did not discuss Dr. Martin's findings as to Mr. Norris' capacity to interact appropriately with supervisors. See ECF No. 9-2 at 124-27, 141, Tr. 123-27, 140. Neither RFC finding, from both the initial and supplemental decision, placed any limitation on Mr. Norris' ability to interact and take direction from supervisors. See ECF No. 9-2 at 18, Tr. 17; ECF No. 9-3 at 14-15, Tr. 201-02. As an "RFC that fails to take into account a claimant's limitations is defective," Valentine v. Comm'r Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009), the ALJ erred as the RFC finding failed to incorporate any limitation as to Mr. Norris' ability to appropriately interact with supervisors.
Although Dr. Martin testified that this limitation would not necessarily restrict Mr. Norris from working in any capacity, ECF No. 9-2 at 141, Tr. 140, the Court cannot conclusively determine that the ALJ's error was "inconsequential to the ultimate nondisability determination." See Stout, 454 F.3d at 1055; see also ECF No. 92-93, Tr. 91-92 (testimony from VE that individual with marked limitation in their "ability to interact appropriately with supervisors," among other social limitations, would not be expected to "maintain employment for any substantive period of time in any job"). Although Dr. Martin did not testify that Mr. Norris had a "marked" impairment, the Court is unable to conclude that a "moderate" limitation in Mr. Norris' ability to interact with supervisors would not have some effect on the VE's testimony as well as the ultimate disability determination.
The ALJ also omitted any discussion of Dr. Martin's finding that Mr. Norris had moderate limitations in concentration, persistence, and pace from the RFC finding. Similar to the ALJ's omission of Dr. Martin's opinion concerning interaction with supervisors, the Court cannot conclude that the ALJ's omission was harmless. The Court cannot determine how a moderate limitation as to concentration, persistence, and pace might affect Mr. Norris' RFC or the VE's responses to the hypothetical questions posed by the ALJ.
As, in his initial decision, the ALJ purported to give Dr. Martin's testimony "significant weight," ECF No. 9-3 at 18, Tr. 205, the Court must conclude that the ALJ credited Dr. Martin's findings as to Mr. Norris' functional limitations. The ALJ, however, failed to incorporate all of Dr. Martin's opined limitations into the RFC. Therefore, the Court finds that the ALJ committed reversible error when omitting any discussion of Dr. Martin's opinion concerning Mr. Norris' ability to interact with supervisors and limitation as to concentration, persistence, and pace from the RFC finding.
Dr. Stephen Rubin testified as an impartial medical expert at Mr. Norris' supplemental hearing before the ALJ on December 4, 2012. ECF No. 9-2 at 12, Tr. 11. Dr. Rubin reviewed the record in Mr. Norris' case prior to testifying during the hearing. ECF No. 9-2 at 42, Tr. 41. Dr. Rubin diagnosed Mr. Norris with a variety of psychological disorders including ADHD, major depressive disorder, a pain disorder, and a substance addiction disorder (in remission). ECF No. 9-2 at 43, Tr. 42. While Dr. Rubin testified that "I don't think any [of Mr. Norris' psychological disorders] in particular or even all combined make it impossible for him to hold a job," Dr. Rubin opined that Mr. Norris "has had difficulties holding jobs, and a lot of it has to do with interacting with others." ECF No. 9-2 at 44, Tr. 43. Dr. Rubin, however, agreed with Dr. Catherine MacLellan's suggestion that Mr. Norris' "prognosis is poor." ECF No. 9-2 at 46, Tr. 45. Dr. Rubin testified that Mr. Norris had "moderate difficulties in maintaining concentration" and "[a] real problem getting along with the public and coworkers." ECF No. 9-2 at 47, 49, Tr. 46, 48. The ALJ gave "significant weight" to Dr. Rubin's opinion. ECF No. 9-2 at 21, Tr. 20.
Mr. Norris argues that the ALJ, while purporting to give Dr. Rubin's opinion "significant weight," failed to fully account for Dr. Rubin's findings concerning moderate difficulties in maintaining concentration, interacting with the public and coworkers, and in being motivated to work. ECF No. 13 at 9. The Commissioner argues that Dr. Rubin's testimony is consistent with the ALJ's decision. ECF No. 16 at 25.
The ALJ adequately incorporated Dr. Rubin's conclusion concerning interaction with the public and coworkers into the RFC finding. The ALJ noted that Mr. Norris could "have superficial contact with the public," "would be an occasional distraction to co-workers once a month," and "should work independently and not in coordination with other co-workers." ECF No. 9-2 at 18, Tr. 17. These limitations are sufficiently similar to the Dr. Rubin's opinion that Mr. Norris would have "[a] real problem getting along with the public and coworkers." ECF No. 9-2 at 49, Tr. 48; see also Turner v. Comm'r of Social Sec., 613 F.3d 1217, 1223 (9th Cir.2010) (the ALJ need only incorporate limitations consistent with relevant and accepted medical opinion for the RFC to be sufficiently inclusive).
The ALJ, however, provided no rationale for failing to incorporate Dr. Rubin's opinions concerning Mr. Norris' limitations with concentration or issues with motivation. As an "RFC that fails to take into account a claimant's limitations is defective," Valentine, 574 F.3d at 690, the Court concludes that the ALJ erred when failing to account for these limitations in the RFC findings. The Commissioner urges the Court to conclude that the ALJ merely utilized an alternative, yet nonetheless rational, interpretation of Dr. Rubin's opinion. ECF No. 16 at 26 (citing Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004)). However, there is a difference between providing a rational interpretation that differs from a claimant's desired interpretation and not providing an interpretation at all. As the ALJ failed to account for or provide a reason for rejecting Dr. Rubin's opinions concerning concentration and motivation, the Court finds that the ALJ erred in this regard.
The ALJ's error is not harmless. As the ALJ purported to give Dr. Rubin's testimony "significant weight," ECF No. 9-2 at 21, Tr. 20, the Court must conclude that the ALJ credited Dr. Rubin's findings as to Mr. Norris' functional limitations.
Dr. Leslie Postovoit completed a Mental Residual Functional Capacity Assessment based on a review of Mr. Norris' records on March 23, 2007. ECF No. 9-7 at 139-43, Tr. 614-618. Dr. Postovoit opined that Mr. Norris was able to understand and carry out simple tasks and some complex tasks, could manage intermittent, casual contact with the public and coworkers, and was able to adapt to occasional changes in the workplace. ECF No. 9-7 at 141, Tr. 616. In a check-the-box form, Dr. Postovoit further rated Mr. Norris as being moderately limited in his ability to carry out detailed instructions, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, accept instructions, and respond appropriately to criticism from supervisors. ECF No. 9-7 at 139-40, Tr. 614-15. On June 14, 2007, Dr. James Bailey affirmed Dr. Postovoit's findings. ECF No. 9-7 at 184, Tr. 659. The ALJ gave Drs. Postovoit's and Bailey's findings "great weight." ECF No. 9-2 at 21, Tr. 20.
Mr. Norris alleges that the ALJ, while purporting to give "great weight" to Drs. Postovoit's and Bailey's opinions, failed to adequately incorporate the medical opinions into the RFC finding. ECF No. 13 at 10. The Commissioner argues that the ALJ adequately incorporated Drs. Postovoit's and Bailey's narrative findings and was not required to consider the check-the-box assessment form. ECF No. 16 at 21-22.
Drs. Postovoit and Bailey opined, in narrative format, that Mr. Norris suffered limitations concerning his ability to carry out complex tasks, interact appropriately with coworkers and the public, and adapt to occasional changes in the workplace. ECF No. 9-7 at 141, Tr. 616. The ALJ specifically noted each of these conclusions, ECF No. 9-2 at 21, Tr. 20, and incorporated the opinions into the RFC finding. ECF No. 9-2 at 18, Tr. 17 (noting that "claimant is able to perform simple routine work," "is able to have superficial contact with the public," and "should work independently and not in coordination with other co-workers"). The Court finds that the limitations incorporated into the RFC are sufficiently similar to those opined by Drs. Postovoit and Bailey. See Turner, 613 F.3d at 1223 (the ALJ need only incorporate limitations consistent with relevant and accepted medical opinion for the RFC to be sufficiently inclusive).
The Court finds that the ALJ did not err in failing to consider the check-the-box assessment form included as part of Dr. Postovoit's report. See ECF No. 9-7 at 139-40, Tr. 614-15. An ALJ may permissibly reject check-the-box reports that do not contain any explanation of the bases for their conclusions. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.1996). Although the ALJ did not specifically discuss Dr. Postovoit's check-the-box findings, the ALJ noted that "[o]pinions rendered on form reports that do not contain significant explanation of the basis for their conclusions may appropriately be accorded little
Dr. Catherine MacLellan gave Mr. Norris two psychological evaluations, the first on March 9, 2007, and the second on May 8, 2012. In the first evaluation, Dr. MacLellan opined that Mr. Norris had problems with sustained concentration, pace, and persistence, is angry and intolerant of being given instructions, and has little respect for authority. ECF No. 9-7 at 130, Tr. 605. Dr. MacLellan concluded that Mr. Norris' "affective and personality disorders will continue to interfere with his ability to work even if he stays clean and sober." Id. In the second evaluation, Dr. MacLellan opined that Mr. Norris had difficulty with reasoning, poor judgment, limited insight into his own condition, difficulty with sustained concentration, pace, and persistence, difficulty getting along with others such as the public and supervisors, and did not cope well with stress. ECF No. 9-8 at 150, Tr. 827. Dr. MacLellan concluded that Mr. Norris' "prognosis for recovery is poor." Id. Dr. MacLellan also filled out a Medical Source Statement of Ability to do Work-Related Activities form in which Dr. MacLellan opined, in check-the-box format, that Mr. Norris had marked difficulties with making complex decisions as well as with interacting with the public, supervisors, and coworkers. ECF No. 9-8 at 158-59, Tr. 835-36.
The ALJ gave "little weight" to Dr. MacLellan's 2007 opinion as her opined global assessment of functioning ("GAF") score of 58 was inconsistent with her prognosis. ECF No. 9-2 at 22, Tr. 21. The ALJ gave little weight to Dr. MacLellan's 2012 opinion as both her opined GAF score of 54-58 was inconsistent with her prognosis and Dr. MacLellan referred to "episodes of decompensation" which were not present in the medical record. Id.
Mr. Norris argues that the ALJ impermissibly substituted his lay opinion for that of a trained psychologist as pertains to the GAF score. ECF No. 13 at 15. Alternatively, Mr. Norris argues that the ALJ has failed to show any inconsistency. Id. The Commissioner argues that the ALJ's finding must be upheld as a reasonable person could find inconsistencies within Dr. MacLellan's medical opinion. ECF No. 16 at 27.
The Court finds that the ALJ did not commit reversible error when giving "little weight" to Dr. MacLellan's opinion based on internal inconsistency. A GAF score ranging from 51-60 is indicative of moderate symptoms such as moderate difficulties with social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994). The ALJ found that Dr. MacLellan's GAF finding of 54-58, as indicative of only moderate symptoms, was inconsistent with her findings of "marked" and more serious limitations. ECF No. 9-2 at 22, Tr. 21. "When the evidence before the ALJ is subject to more than one rational interpretation, [the Court] must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198. Contrary to Mr. Norris' assertion that "[t]he ALJ has failed to show any inconsistency," ECF No. 13 at 15, Dr. MacLellan noted that Mr. Norris suffered from a number of "marked" limitations and that his "affective and personality disorders will continue to interfere with his ability to work," see ECF No. 9-7 at 130, Tr. 605; ECF No. 9-8 at 158-59, Tr. 835-36, only to opine that Mr. Norris' GAF score was 54-58, indicative of "moderate" limitations. ECF No. 9-8 at 149, Tr. 826.
Further, the ALJ did not improperly substitute his lay opinion for Dr. MacLellan's expert medical opinion. The ALJ did not purport to diagnose Mr. Norris with a specific GAF score. Instead, the ALJ merely used Dr. MacLellan's stated GAF scores as a means of demonstrating the internal inconsistencies contained in Dr. MacLellan's opinions. As it is the ALJ's role to resolve inconsistencies in the medical evidence, the Court finds that the ALJ did not impermissibly substitute his lay opinion for that of a medical expert.
The ALJ also rejected Dr. MacLellan's opinion because she referred to a "`history of episodes of decompensation associated with alcohol,' but the record is devoid of such evidence." ECF No. 9-2 at 22, Tr. 21. Dr. MacLellan noted that "[t]here has been a history of episodes of decompensation associated with alcohol, but [Mr. Norris] has stayed out of legal trouble since he has stayed away from alcohol." ECF No. 9-8 at 150, Tr. 827. Mr. Norris urges the Court to consider evidence in the record that "many of [Mr. Norris'] bad decisions resulting in legal consequences have occurred due to alcohol use." ECF No. 13 at 16 (citing ECF No. 9-7 at 4, Tr. 479; ECF No. 9-7 at 191, Tr. 666). The Commissioner notes that "bad decisions and legal consequences are not the same as `decompensation.'" ECF No. 16 at 27. As cited by the Commissioner, "[d]ecompensation is `the failure of defense mechanisms, which results in progressive personality disintegration.'" Id. (citing http://medical-dictionary.thefreedictionary.com/decompensation).
The Court finds that the ALJ did not reasonably interpret Dr. MacLellan's finding. When reciting Dr. MacLellan's statement, the ALJ omitted the second clause, which stated that "but he has stayed out of legal trouble since he has stayed away from alcohol." ECF No. 9-8 at 150, Tr. 827 (emphasis added). As argued by Mr. Norris, the Court concludes that, whatever medical definition "decompensation" may have, Dr. MacLellan intended to utilize the term in relation to Mr. Norris' legal difficulties stemming from his alcohol use. It is pertinent to this discussion that Mr. Norris' most recent legal troubles arose out of a motorcycle accident related to consuming alcohol. See ECF No. 9-7 at 4, Tr. 479. Further, Dr. Rubin, in whose opinion the ALJ placed "significant weight," ECF No. 9-2 at 21, Tr. 20, noted that "since 2004, [Mr. Norris] probably had four or more episodes of decompensation." ECF No. 9-2 at 47, Tr. 46. The Court finds that it was not reasonable for the ALJ to partially consider Dr. MacLellan's finding to ignore the obvious meaning intended by Dr. MacLellan.
"A decision of the ALJ will not be reversed for errors that are harmless." Burch, 400 F.3d at 679. An error is harmless when it is "inconsequential to the ultimate nondisability determination." Stout, 454 F.3d at 1055. As the ALJ did not commit reversible error when finding that Dr. MacLellan's opinion was internally inconsistent due to her opined GAF scores, the Court finds that the ALJ's error concerning his interpretation of the "decompensation" finding to be harmless. Therefore, the ALJ did not commit reversible error when giving Dr. Thompson's medical opinion "little weight."
Dr. Renee Thompson gave Mr. Norris an adult complex psychological assessment on November 4, 2009. ECF No. 9-8 at 45-52, Tr. 722-29. Dr. Thomson rated Mr. Norris' prognosis as "poor" due
The ALJ gave "little weight" to Dr. Thompson's medical opinion. ECF No. 9-2 at 23, Tr. 22. The ALJ noted that Dr. Thompson's findings were internally inconsistent as Mr. Norris performed within normal limits on the mental status examination yet was found to have difficulty with simple routine tasks and maintaining focus and concentration. Id. The ALJ also found that Dr. Thompson's conclusions were largely based on Mr. Norris' less than fully credible self-report. Id.
Mr. Norris argues that the ALJ improperly substituted his lay opinion for the expert medical opinion of a trained psychologist. ECF No. 13 at 18. Further, Mr. Norris argues that Dr. Thompson did not largely base her opinion on Mr. Norris' self-report and that, as the ALJ's credibility analysis is flawed, this is an improper reason to reject Dr. Thompson's opinion. Id. The Commissioner argues that, as Dr. Thompson's opinion is internally inconsistent, the ALJ did not commit reversible error. ECF No. 16 at 30.
The Court finds that the ALJ did not err in finding that Dr. Thompson's opinion was internally inconsistent. During the mental status examination, Mr. Norris was able to repeat the words provided to him by Dr. Thompson, recount events from his personal life over the past few days, give details concerning remote events, was aware of recent national news, and follow the directions provided by Dr. Thompson. ECF No. 9-8 at 48, Tr. 725. Based on Dr. Thompson's objective findings, the Court cannot conclude that it was unreasonable for the ALJ to find internal inconsistences in Dr. Thompson's medical opinion. For example, as noted by the ALJ, see ECF No. 9-2 at 22, Tr. 21, Dr. Thompson's finding that Mr. Norris "will have difficulty remembering and carrying out simple work related instructions" could rationally be interpreted as inconsistent with the objective evaluation. See ECF No. 9-8 at 52, Tr. 729; see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005) (affirming ALJ rejection of medical opinion where physician's other recorded observations and opinion contradict assessment). As such, the Court finds that the ALJ did not commit reversible error when finding Dr. Thompson's medical opinion internally inconsistent. Similar to Dr. MacLellan, the ALJ was not impermissibly substituting his lay opinion for that of a medical expert. The ALJ merely noted an inconsistency which allowed the ALJ to resolve competing and conflicting medical opinion testimony.
As elements of Dr. Thompson's opinion conflict with opinions of other medical experts, the ALJ was only required to give a "specific and legitimate" reason for rejecting her medical opinion. Compare ECF No. 9-8 at 52, Tr. 729 (Dr. Thompson's opinion that Mr. Norris "will have difficulty remembering and carrying out simple work related instructions") with ECF No. 9-7 at 141, Tr. 616 (Dr. Postovoit's opinion that Mr. Norris is "able to understand and carry out simple tasks and some complex tasks").
The ALJ's finding that Dr. Thompson's medical opinion contains internal inconsistencies stands as a sufficiently "specific and legitimate" reason to give Dr. Thompson's testimony "little weight." As such, even if the ALJ's finding that Dr. Thompson's opinion was largely based on the claimant's self-report was in error, such error was harmless as the Court can
Dr. Rachael McDougall gave Mr. Norris a psychological/psychiatric evaluation on April 16, 2012. ECF No. 9-8 at 178-84, Tr. 855-61. Dr. McDougall rated Mr. Norris as having severe mood dysregulation, moderate attention deficit, marked learning difficulties, and marked antisocial personality traits. ECF No. 9-8 at 180, Tr. 857. Dr. McDougall further opined that Mr. Norris suffered moderate limitations in his ability to understand, remember, and follow simple instructions and ability to perform routine tasks. ECF No. 9-8 at 181-82, Tr. 858-59. Dr. McDougall noted that Mr. Norris had marked limitations in his ability to understand, remember, and follow complex instructions, exercise judgment and make decisions, and care for himself, including personal hygiene and appearance. Id. Finally, Dr. McDougall opined that Mr. Norris suffered severe limitations in his abilities to relate appropriately to co-workers and supervisors, interact appropriately in public contacts, respond appropriately to and tolerate the pressures and expectations of a normal work setting, and maintain appropriate behavior in a work setting. ECF No. 9-8 at 182, Tr. 859.
The ALJ gave "little weight" to Dr. McDougall's medical opinion. ECF No. 9-2 at 23, Tr. 22. The ALJ found that Dr. McDougall's opinion was largely based on Mr. Norris' less than fully credible self-reports. Id. Further, the ALJ found that Dr. McDougall's opined GAF score of 45 was indicative of serious symptoms and inconsistent with medical evidence of record. Id.
Mr. Norris argues that Dr. McDougall did not largely base her opinion on Mr. Norris' self-report and that, as the ALJ's credibility analysis is flawed, this is an improper reason to reject Dr. McDougall's opinion. ECF No. 13 at 21. Further, Mr. Norris argues that Dr. McDougall's opined GAF score is not inconsistent with the opinions of other physicians. Id.
"[W]hen an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir.2014); see also Ryan v. Comm'r of Social Sec., 528 F.3d 1194, 1200 (9th Cir.2008) (finding that substantial evidence did not support the ALJ's conclusion that the medical expert relied on self-reports more heavily than on his own clinical observations). In Ghanim, "the ALJ offered no basis for his conclusion that these opinions were based more heavily on Ghanim's self-reports, and substantial evidence does not support such a conclusion." Ghanim, 763 F.3d at 1162. Similar to Ghanim and Ryan, there is no indication in the record that Dr. McDougall relied on Mr. Norris' description of his symptoms more heavily than his own clinical observations. In fact, Dr. McDougall specifically noted that she observed symptoms including severe mood dysregulation and marked antisocial personality traits. ECF No. 9-8 at 180, Tr. 857. The ALJ merely notes that Dr. McDougall's findings are "largely based upon [Mr. Norris'] self-report of symptoms." ECF No. 9-2 at 23, Tr. 22. Without a more thorough explanation, the ALJ's finding cannot be sustained as it is not supported by substantial evidence in the record.
Further, the ALJ found that Dr. McDougall's "assessment of the claimant's GAF score at 45 is inconsistent with the claimant's demonstrated functioning" and
"The opinion of a nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the rejection of the opinion of an examining or treating physician." Morgan, 169 F.3d at 602. Of the many physicians to offer a medical opinion concerning Mr. Norris, only Drs. Martin, Rubin, Postovoit, Bailey, MacLellan, Thompson, and McDougall gave medical opinions concerning psychological limitations. See ECF No. 9-2 at 21-23, Tr. 20-22. As the ALJ gave "little weight" to the opinions of Drs. MacLellan and Thompson, see ECF No. 9-2 at 22-23, Tr. 21-22, the ALJ must have concluded that Dr. McDougall's opinion was "inconsistent" with the opinions of Drs. Martin, Rubin, Postovoit and Bailey. However, all four physicians were nonexamining physicians. See ECF No. 9-2 at 42, Tr. 41 (noting that Dr. Rubin formed opinion having reviewed evidence in file), ECF No. 9-2 at 108, Tr. 107 (noting that Dr. Martin formed opinion having reviewed evidence in file), ECF No. 9-7 at 139, Tr. 614 (noting that Dr. Postovoit made findings based on "the evidence in file"), ECF No. 9-7 at 184, Tr. 659 (noting that Dr. Bailey affirmed Dr. Postovoit having "read all evidence of file"). Therefore, under Morgan, these opinions cannot constitute "substantial evidence" to reject the opinion of Dr. McDougall, an examining physician. As the ALJ has given no indication of other inconsistent medical evidence, the Court finds that the ALJ's finding is not supported by substantial evidence and cannot be sustained.
Based on the above, the ALJ committed reversible error when giving McDougall's medical opinion "little weight." Neither of the reasons proffered by the ALJ are supported by substantial evidence in the record.
PA-C Shellie Rabidou has been Mr. Norris' primary care provider for many years. ECF No. 13 at 22. In 2007, PA-C Rabidou conducted a physical exam which noted limitations with movement of the upper extremities and a limited range of motion of the spine. ECF No. 9-7 at 134, Tr. 609. PA-C Rabidou also opined that Mr. Norris' back pain would cause significant interference with his ability to make a number of physical maneuvers. ECF No. 9-7 at 135, Tr. 610. PA-C Rabidou concluded that Mr. Norris would be unable to perform sedentary employment. Id. In 2008, PA-C Rabidou opined that Mr. Norris' back problems would render him unable to sit, stand, walk, lift, or carry on a consistent basis. ECF No. 9-7 at 202, Tr. 677. In 2009, PA-C Rabidou concluded another psychical exam by finding similar physical limitations that would limit Mr. Norris' ability to perform sedentary work. ECF No. 9-8 at 41-43, Tr. 718-20. In 2012, PA-C Rabidou opined that Mr. Norris is disabled from full time work. ECF No. 9-8 at 143, Tr. 820. In summary, PA-C Rabidou noted that "the only humane and appropriate action is to allow [Mr. Norris] disability so that he can at least depend on some support." ECF No. 9-8 at 142, Tr. 819.
The ALJ gave PA-C Rabidou's opinion "little weight." ECF No. 9-2 at 22, Tr. 21. The ALJ noted that PA-C Rabidou had assessed nerve root compression, but that MRI results were inconsistent with that finding. Id. The ALJ also discounted many
Mr. Norris argues that the ALJ erred as it is factually incorrect that Mr. Norris did not have nerve root compression and PA-C Rabidou offered many of her opinions in narrative format. ECF No. 13 at 24-27. The Commissioner argued that PA-C Rabidou's opinions are poorly explained and inconsistent with the record. ECF No. 16 at 33-34.
The ALJ cited to the opinion of Dr. Richard A. Dickson in which Dr. Dickson found "no hard neurologic findings that would suggest ongoing nerve root impingement." ECF No. 9-8 at 54, Tr. 731. Although Mr. Norris references a number of other physicians who noted compression, ECF No. 13 at 25, and alleges that Dr. Dickson's finding was incorrect, ECF No. 21 at 5, it is not the Court's role to second-guess reasonable interpretations adopted by the ALJ when resolving inconsistencies in the medical evidence. See Morgan, 169 F.3d at 603. As such, although alternative reasonable explanations may exist, the Court must defer to the ALJ's decision to credit Dr. Dickson's medical opinion as compared to PA-C Rabidou's conflicting assessment.
Contrary to Mr. Norris' assertion, the majority of PA-C Rabidou's opinions are rendered in check-the-box or fill-in-the-blank format. See ECF No. 9-7 at 134-35, 202, Tr. 609-10, 677; ECF No. 9-8 at 41-43, 143, Tr. 718-20, 820. An ALJ may permissibly reject check-the-box reports that do not contain any explanation of the bases for their conclusions. Crane, 76 F.3d at 253.
As noted by Mr. Norris, several of PA-C Rabidou's opinions are given in narrative format. For example, in 2008, PA-C Rabidou noted that Mr. Norris reported his back pain as a seven out of ten without medication and opined that Mr. Norris' chronic low back pain appeared to be worsening. ECF No. 9-8 at 21, Tr. 698. In 2012, PA-C Rabidou opined that "there are not [sic] treatments that will allow [Mr. Norris] the mobility and physical capacity to return to any of his previous types of employment." ECF No. 9-8 at 142, Tr. 819. In conclusion, PA-C Rabidou noted that Mr. Norris' psychological limitations "would make it difficult to impossible to be cross-trained into any other kind of work" and that "[a]t this point the only humane and appropriate action is to allow [Mr. Norris] disability so that he can at least depend on some support." Id.
As discussed above, the ALJ permissibly gave "little weight" to PA-C Rabidou based on his rational interpretation of Dr. Dickson's finding that Mr. Norris did not suffer from nerve root compression. Although Mr. Norris may disagree, inconsistency between a medical opinion and other objective medical evidence is a sufficiently "specific and legitimate" reason to reject medical testimony. Morgan, 169 F.3d at 603. While, as noted by Mr. Norris, it is true that an ALJ must "consider all evidence," it is the ALJ's responsible to resolve conflicts and inconsistencies between medical opinions. As the ALJ's decision was a rational interpretation of Dr. Dickson's medical opinion, the Court must defer to the ALJ's finding. The Court finds that the ALJ did not commit reversible error when giving "little weight" to PA-C Rabidou's medical opinion.
Mr. Norris alleges that the ALJ found he lacked credibility without providing the requisite "clear and convincing reasons." ECF No. 13 at 27. Specifically, Mr. Norris argues that the ALJ improperly considered the lack of objective medical evidence, his activities of daily living, inconsistent statements regarding alcohol and drug use, inconsistent statements regarding
The Commissioner's credibility determination must be supported by findings sufficiently specific to permit the reviewing court to conclude the ALJ did not arbitrarily discredit a claimant's testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir.1991). If there is no affirmative evidence that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony regarding the severity of symptoms.
If the ALJ finds that a claimant's statements are not credible, he need not reject the entirety of a claimant's symptom testimony. See Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The ALJ may find the claimant's statements about pain to be credible to a certain degree, but discount statements based on his interpretation of evidence in the record as a whole. See id. "[T]he ALJ's interpretation of [a claimant's] testimony may not be the only reasonable one ... [b]ut [if] it is still a reasonable interpretation and ... supported by substantial evidence... it is not our role to second-guess it." See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.2001). However, an ALJ's failure to articulate specifically "clear and convincing" reasons for rejecting a claimant's subjective complaints is reversible error. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir.2007).
In addition to ordinary techniques of credibility evaluation, the ALJ may consider the following factors when weighing the claimant's credibility: the claimant's reputation for truthfulness; inconsistencies either in allegations of limitations or between statements and conduct; daily activities; work record; and testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's alleged symptoms. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
Mr. Norris alleges that the ALJ erroneously found that "the objective medical evidence is inconsistent with the severity alleged by the claimant." ECF No. 13 at 29; ECF No. 9-2 at 22, Tr. 21. Mr. Norris argues that, instead of relying on brief physical consultative evaluations by Drs. Richard Dickson and Steven Rode, the ALJ should have considered other medical evidence that is consistent with Mr. Norris' alleged limitations. ECF No. 13 at 29.
Although Mr. Norris may urge the Court to consider the opinions of other examining physicians, the Court must defer to the ALJ's credibility finding if it is a reasonable interpretation of the evidence. Here, Drs. Dickson and Rode opined that Mr. Norris' alleged pain was not supported by hard medical findings. ECF No. 9-2 at 19, Tr. 18. Although Mr. Norris may argue that the ALJ should have relied on the allegedly more thorough examinations performed
Mr. Norris alleges that the ALJ erroneously found that "the claimant is capable of functioning at a level greater than what he reports." ECF No. 13 at 29-30; ECF No. 9-2 at 19, Tr. 18. The ALJ found that several reported activities, including snowmobiling and having a pinecone fight, demonstrated a greater level of functioning. ECF No. 9-2 at 22, Tr. 21. Mr. Norris argues that, as Mr. Norris was injured during these activities, the activities do not present a sufficient basis to conclude that Mr. Norris has a greater level of functioning than reported.
Mr. Norris argues that "it is illogical to state that [Mr. Norris] functions at a greater level than what he reports since he in fact reported these very activities." ECF No. 13 at 29. However, the ALJ was merely comparing Mr. Norris' testimony concerning his pain symptoms with records of Mr. Norris' past activities to determine if Mr. Norris had made inconsistent statements. As such, the fact that Mr. Norris reported these activities to medical professionals during examinations does not resolve or negate any inconsistency uncovered by the ALJ. One factor relevant to the credibility analysis is inconsistencies either in allegations of limitations or between statements and conduct. Light, 119 F.3d at 792. Therefore, the Court rejects Mr. Norris' argument as the ALJ would otherwise be precluded from comparing a claimant's past and present statements.
While Mr. Norris provides alternative, reasonable explanations for the conduct noted by the ALJ, it is not the Court's role to second-guess the reasonable conclusions reached by the ALJ. See Rollins, 261 F.3d at 857. Mr. Norris does not dispute that he reported the above activities during medical examinations. ECF No. 9-8 at 82, 84, Tr. 759, 761. The Court finds that the ALJ did not commit reversible error when comparing Mr. Norris' reported pain symptoms with past reports that can reasonably be interpreted to indicate a greater level of functioning.
Mr. Norris alleges that the ALJ erroneously found that the "claimant has... provided inconsistent statements regarding his use of alcohol and marijuana." ECF No. 13 at 30; ECF No. 9-2 at 20, Tr. 19. The ALJ found that, while Mr. Norris reported being clean and sober since 2006 or 2007 with a relapse in 2009, medical records from 2011 and 2012 stated that Mr. Norris reported smoking marijuana and using alcohol daily. ECF No. 9-2 at 20, Tr. 19. Mr. Norris argues that the ALJ failed to demonstrate how these statements are inconsistent. ECF No. 13 at 30.
As noted by the ALJ, a 2011 treatment notes recounts that Mr. Norris "smokes marijuana daily and drinks alcohol daily." ECF No. 9-8 at 82, Tr. 759. Further, in 2012, Mr. Norris reported to Dr. McDougall "binge use of alcohol approximately 3 months ago." ECF No. 9-8 at 181, Tr. 858.
Most of the sections of the record directly cited by the ALJ are not inconsistent, as each statement concerns alcohol use prior to 2009. See ECF No. 9-2 at 20, Tr. 19. For example, a 2007 treatment note merely states that Mr. Norris "has been in recovery for a couple of years and is just starting services with OBHC CD program."
However, in 2011, Mr. Norris informed PA-C Rabidou that he had quit drinking in 2006. ECF No. 9-8 at 131, Tr. 808. This statement is inconsistent with Mr. Norris' 2009 statement to Dr. Thompson in which he admitted consuming alcohol earlier in 2009. Compare ECF No. 9-8 at 131, Tr. 808 with ECF No. 9-8 at 46, Tr. 723. The Commissioner urges the Court to consider Mr. Norris' statement during the second hearing, where Mr. Norris reported that he had last drunk alcohol in 2010. ECF No. 16 at 7. However, the Court is "constrained to review the reasons the ALJ asserts." Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.2003). As the ALJ did not cite Mr. Norris' hearing testimony concerning alcohol use as inconsistent with his prior statements, the Court cannot uphold the ALJ's finding on that basis. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.2014) (finding that a reviewing court cannot "comb the administrative record to find specific conflicts").
Although the ALJ's opinion does note one inconsistent statement concerning alcohol use, compare ECF No. 9-8 at 131, Tr. 808 with ECF No. 9-8 at 46, Tr. 723, the Court finds that the ALJ did not provide sufficiently "clear and convincing" evidence to support a negative credibility finding based on these purportedly inconsistent statements. The ALJ misconstrued the record, and purported to find inconsistent statements that could not reasonably be interpreted as inconsistent. The ALJ failed to note the sole inconsistency recognized by the Court, as the ALJ attempted to show that both documents were inconsistent with other, later records, as opposed to each other. See ECF No. 9-2 at 20, Tr. 19.
Mr. Norris alleges that the ALJ erroneously found that Mr. Norris "provided inconsistent information regarding his criminal history." ECF No. 13 at 30-31; ECF No. 9-2 at 20, Tr. 19. The ALJ noted that Mr. Norris told a healthcare worker that his criminal history was confined to his teen years, when Mr. Norris in fact had significant adult criminal history. ECF No. 9-2 at 20, Tr. 19. Further, the ALJ found that Mr. Norris told a psychological evaluator that he had not committed a crime since he was thirty, when he had in fact been involved in a criminal proceeding in 2004. Id. Mr. Norris argues that the ALJ failed to provide the requisite "clear and convincing" reasons supporting his conclusion. ECF No. 13 at 31.
The ALJ cited a 2007 treatment note which stated that "[h]e has a criminal history from his teens." ECF No. 9-7 at 182, Tr. 657. Mr. Norris argues that the ALJ improperly attributed this statement to Mr. Norris. ECF No. 13 at 31. However, the paragraph which contains the statement pertaining to criminal history is essentially a list of other statements Mr.
While the ALJ noted that "the claimant told one psychological evaluator that he had not committed a crime since he was 30," the ALJ failed to cite to the record for this statement. ECF No. 9-2 at 20, Tr. 19. Although Mr. Norris guesses that the ALJ was referring to a statement by Dr. MacLellan that Mr. Norris "has stayed out of jail since he was 30 other than for failure to pay fines and 20 days for the reckless driving," ECF No. 907 at 127, Tr. 602, it is impossible for the Court to analyze the ALJ's finding without a direct citation. Although the Commissioner argues that the Court is not faced with an impossible task as it must read the record as a whole, ECF No. 16 at 11 n.2 (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.1984)), the Court is not permitted to "comb the administrative record to find specific conflicts." See Burrell, 775 F.3d at 1138. The Court also takes note that the Commissioner fails to provide a citation for this specific notation in the record. See ECF No. 16 at 10-11. As the ALJ failed to cite to the record, the allegedly inconsistent statement concerning Mr. Norris' criminal history is not sufficiently "clear and convincing" to withstand review.
Mr. Norris alleges that the ALJ erroneously found that "the claimant has provided inconsistent statements regarding his education." ECF No. 13 at 31-32; ECF No. 9-2 at 20, Tr. 19. The ALJ noted that, at various times, Mr. Norris reported having completed through the eighth, tenth, and twelfth grades. ECF No. 9-2 at 20, Tr. 19. Mr. Norris argues that there is no inconsistency between Mr. Norris' various statements.
In 2007, Mr. Norris reported that he attended twelfth grade but did not graduate while taking some freshman classes to catch up. ECF No. 9-7 at 192, Tr. 667. Also in 2007, Mr. Norris reported that he had completed through the tenth grade. ECF No. 9-7 at 181, Tr. 656. Finally, in 2012, Mr. Norris reported that he "thinks he finished 8th grade, [and] said was passed into high school." ECF No. 9-8 at 147, Tr. 824. While Mr. Norris attempts to provide an alternative reasonable explanation for the perceived inconsistencies in his statements regarding his education, the Court must defer to the reasonable interpretation of the evidence by the ALJ. See Rollins, 261 F.3d at 857. As, based on the three statements cited by the ALJ, it was not unreasonable for the ALJ to conclude that Mr. Norris had provided inconsistent statements regarding his education, the Court cannot second-guess the ALJ's finding.
Mr. Norris alleges that the ALJ erroneously found that "[t]he claimant has alleged significant anger and temper problems, but he has generally been described as `delightful,' pleasant and cooperative by treating and examining health care providers." ECF No. 13 at 32; ECF No. 9-2 at
The Court finds that Mr. Norris misinterprets the ALJ's finding. The ALJ did not state that he would expect Mr. Norris to be angry at every medical appointment. The ALJ merely found that Mr. Norris demeanor, generally delightful, pleasant, and cooperative, partially undermined the functional limitations as alleged by Mr. Norris. See ECF No. 9-2 at 20, Tr. 19. As the ALJ made a reasonable finding supported by substantial evidence in the record, the Court cannot second-guess the ALJ's conclusion.
Mr. Norris alleges that the ALJ erroneously found that "the claimant has not engaged in treatment to the extent that one would expect given the alleged severity of his pain symptoms." ECF No. 13 at 32-33; ECF No. 9-2 at 20, Tr. 19. The ALJ listed a number of instances where Mr. Norris had discontinued physical therapy or failed to seek treatment for his psychological symptoms. ECF No. 9-2 at 20, Tr. 19. Mr. Norris argues that the ALJ failed to provide the requisite "clear and convincing" reasons to support this finding. ECF No. 13 at 33.
Mr. Norris alleges that, while the ALJ "did not think his physical therapy was adequate," "the ALJ did not specify what the extent of treatment he would expect might be." Id. Mr. Norris misconstrues the ALJ's finding. The ALJ did not render an opinion as to the amount of psychical therapy Mr. Norris should have sought. The ALJ was merely noting instances in the record where Mr. Norris, despite his alleged severe pain symptoms, failed to follow through with physical therapy. See ECF No. 9-8 at 86, Tr. 763 (noting that Mr. Norris was "discharged from physical therapy" as "he has either cancelled or not shown up for ensuing visits and has made no effort to reschedule"). Mr. Norris states that he failed to follow through on physical therapy because his structural issues were beyond the scope of what physical therapy could address. ECF No. 13 at 33. However, even if Mr. Norris has proffered an alternative reasonable explanation, it is not this Court's role to second-guess the reasonable conclusions reached by the ALJ. See Rollins, 261 F.3d at 857. The Court finds that it was not unreasonable for the ALJ to conclude that Mr. Norris' failure to continue physical therapy for his allegedly serious pain symptoms detracted from his credibility.
Mr. Norris alleges that the ALJ incorrectly considered that he was not taking pain medication in 2009. ECF No. 13 at 33. The ALJ cited a treatment note in which Mr. Norris reported that he was "not taking anything for his pain currently." ECF No. 9-2 at 20, Tr. 19 (citing ECF No. 9-8 at 88, Tr. 765). However, the ALJ omitted the following sentence which stated that Mr. Norris "had stopped taking the Norco for a while secondary to fears of building a tolerance and becoming addicted." ECF No. 9-8 at 88, Tr. 765. The Court finds that it was unreasonable for the ALJ to omit the second sentence which provided an explanation underlying why Mr. Norris was not taking pain medication at the time. As this explanation unambiguously demonstrates that Mr. Norris was not failing to take pain medication due to a lack of need for treatment, the Court finds that the ALJ erred as his proffered conclusion was not a reasonable interpretation of the evidence.
Mr. Norris alleges that the ALJ impermissibly considered his failure to seek treatment for his psychological symptoms. ECF No. 13 at 33. The ALJ cites to
Mr. Norris alleges that the ALJ erroneously found that "the claimant's performance on mental status examinations was generally within normal limits." ECF No. 13 at 33-34, ECF No. 9-2 at 20, Tr. 19. Mr. Norris argues that the ALJ reached this conclusion by failing to properly account for rejected medical opinion evidence. ECF No. 13 at 34. As the Court has found that the ALJ did not err in discounting the opinions of Drs. MacLellan and Thompson, the ALJ could not be expected to take account of their opinions in the credibility analysis. However, as the ALJ improperly rejected Dr. McDougall's medical opinion, the ALJ's finding is no longer supported by substantial evidence in the record. See ECF No. 9-8 at 178, Tr. 855 (Dr. McDougall's finding that Mr. Norris suffered from bipolar disorder, ADHD, and a personality disorder with antisocial features). As such, the Court finds that the ALJ erred in finding that Mr. Norris lacked credibility due to normal results on mental status examinations.
In summation, the Court finds that the ALJ erred by considering the following elements in the credibility analysis: Mr. Norris' (1) purportedly inconsistent statements regarding alcohol and drug use; (2) purportedly inconsistent statement regarding criminal history; (3) 2007 statement that he was not currently taking pain medication; (4) failure to seek treatment for his psychological conditions; and (5) good performance on mental status examinations.
"A decision of the ALJ will not be reversed for errors that are harmless." Burch, 400 F.3d at 679. An error is harmless when it is "inconsequential to the ultimate nondisability determination." Stout, 454 F.3d at 1055. "So long as there remains `substantial evidence supporting the ALJ's conclusions on ... credibility' and the error `does not negate the validity of the ALJ's ultimate [credibility] conclusion,' such is deemed harmless and does not warrant reversal." Carmickle v. Comm'r, Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008) (internal citations omitted). "[T]he relevant inquiry ... is not whether the ALJ would have made a different decision absent the error ... [but] is whether the ALJ's decision remains legally valid, despite such error." Id.
The ALJ permissibly considered the following factors in discrediting Mr. Norris' testimony: (1) the lack of objective medical corroboration for Mr. Norris' back pain symptoms; (2) instances that demonstrate a greater level of functionality than as testified to by Mr. Norris; (3) one inconsistent statement regarding Mr. Norris' criminal
The Court finds that the above provide sufficiently "clear and convincing" reasons for rejecting the claimant's testimony regarding the severity of symptoms. See Reddick, 157 F.3d at 722. As the overall credibility finding remains supported by other legitimate "clear and convincing reasons," the Court finds that the ALJ did not commit reversible error when noting the improperly considered factors discussed above.
Mr. Norris alleges that the ALJ impermissibly rejected the lay witness opinion of Toni Stewart. ECF No. 13 at 34-36. Ms. Stewart noted that Mr. Norris does not do "much of anything" due to his back pain. ECF No. 9-6 at 21, Tr. 396. She stated that Mr. Norris sometimes needs assistance getting dressed, ECF No. 9-6 at 22, Tr. 397, and that Mr. Norris cannot get around. ECF No. 9-6 at 25, Tr. 400. Ms. Stewart reported that Mr. Norris "doesn't take orders well ... [and] doesn't like people bossing him around." ECF No. 9-6 at 26, Tr. 401. Ms. Stewart concluded that "I think his disabilities cause him to keep losing jobs because physically or mentally it just doesn't work out for him." ECF No. 9-6 at 28, Tr. 403.
The ALJ "carefully considered" Ms. Stewart's statement. ECF No. 9-2 at 23, Tr. 22. After noting that "Ms. Stewart's observations regarding the claimant's functional abilities do not establish that the claimant is disabled," the ALJ found Ms. Stewart's statement "somewhat credible." Id. Specifically, the ALJ noted that Ms. Stewart's statement is "inconsistent with the medical evidence of record" and "inconsistent with the claimant's reported level of activity throughout the record." Id.
"Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's ability to work is competent evidence that the ALJ must take into account." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.2012). When rejecting the testimony of a lay witness, the ALJ "must give reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993). The Commissioner urges the Court to compare the ALJ's reasoning with that in Bayliss. ECF No. 16 at 37 (citing Bayliss, 427 F.3d at 1218). In Bayliss, the court noted that "[i]nconsistency with medical evidence" is a permissible germane reason for discrediting the testimony of a lay witness. Bayliss, 427 F.3d at 1218. The court concluded that "[t]he ALJ accepted the testimony of Bayliss's family and friends that was consistent with the record of Bayliss's activities and objective evidence in the record; he rejected portions of their testimony that did not meet this standard." Id.
Mr. Norris argues that the ALJ impermissibly rejected Ms. Stewart's statement as she is "not medically trained to make exacting clinical observations." ECF No. 13 at 35 (citing ECF No. 9-2 at 23, Tr. 22). However, the Court finds that, based upon reading the ALJ's conclusion as a whole, the ALJ did not reject Ms. Stewart's statement due to a lack of medical training. As quoted above, inconsistencies between Ms. Stewart's statement and the record were the primary reasons the ALJ found Ms. Stewart not entirely credible.
Mr. Norris argues that Ms. Stewart's statement is in fact consistent with much of the medical opinion rejected by the ALJ. ECF No. 13 at 36. As discussed above, the ALJ did not err in giving little weight to the opinions of Drs. MacLellan and Thompson. However, the ALJ improperly
The ALJ discounted Ms. Stewart's opinion as the statement was "inconsistent with the claimant's reported level of activity throughout the record." Id. The ALJ had previously discussed the aforementioned snowmobiling and pinecone fight as inconsistent activities. ECF No. 9-2 at 19, Tr. 18. Further, other "activities" noted by the ALJ include that Mr. Norris "is able to provide for his own personal needs and complete his basic activities of daily living in a timely manner," go shopping, and take his sister's dog for a walk. ECF No. 9-2 at 16, Tr. 15. As the ALJ need only provide "reasons that are germane to each witness," Dodrill, 12 F.3d at 919, the Court finds that the ALJ's conclusion that Ms. Stewart's statement was inconsistent with Mr. Norris' reported activities provided a sufficiently "germane" reason to discredit Mr. Stewart's testimony. Therefore, the Court finds that the ALJ did not commit reversible error by only giving Ms. Stewart's statement "some weight."
Mr. Norris argues that, when considering the errors identified above, the ALJ's analysis under step five of the sequential process was erroneous and must be reversed. ECF No. 13 at 36-37.
In step five of the sequential process, an ALJ may pose hypothetical questions to a VE in order to determine whether employment opportunities exist in significant numbers in the national economy, given the claimant's RFC, age, education, and work experience. ECF No. 9-2 at 24, Tr. 23. "[A] hypothetical question should `set out all of the claimant's impairments.'" Gallant, 753 F.2d at 1456 (internal citation omitted). "Unless the record indicates that the ALJ had specific and legitimate reasons for disbelieving a claimant's testimony as to subjective limitations such as pain, those limitations must be included in the hypothetical in order for the vocational expert's testimony to have any evidentiary value." Embrey, 849 F.2d at 423. "If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has residual working capacity has no evidentiary value." Gallant, 753 F.2d at 1456. Hypotheticals posed to a VE "must be upheld as long as they are supported by substantial evidence." Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir.1986).
The ALJ posed the following hypothetical to the VE:
ECF No. 9-2 at 83-84, Tr. 82-83. The VE responded that jobs existed in the national economy for an individual sharing those
ECF No. 9-2 at 86, Tr. 85. The VE opined that, while the additional limitations would eliminate all the previously mentioned jobs, id. an individual sharing those characteristics could perform the duties of a final assembler or microfilm document preparer.
As discussed above, the ALJ erred by not fully considering the medical opinions of Drs. Martin, Rubin and McDougall. Specifically, the ALJ failed to incorporate Dr. Martin's opinion concerning Mr. Norris' ability to interact with supervisors and limitations as to concentration, persistence, and pace into the RFC finding. The ALJ further failed to incorporate Dr. Rubin's opinion concerning Mr. Norris' concentration and motivation based limitations. As to Dr. McDougall, the ALJ improperly discredited her entire medical opinion, resulting in the omission of numerous opined psychological limitations. As the RFC, and subsequent VE hypothetical, failed to incorporate all of Mr. Norris' relevant limitations, both were flawed and are not supported by substantial evidence in the record. Therefore, the Court finds that the opinion of the vocational expert that claimant has residual working capacity has no evidentiary value, Gallant, 753 F.2d at 1456, and the ALJ committed reversible error.
Mr. Norris urges that, should this Court find any reversible error in the ALJ's decision, the Court should remand for the immediate award of benefits. ECF No. 13 at 37.
The ordinary remand rule applies to Social Security cases. Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir.2014). As the Ninth Circuit has noted:
Id. (internal citations omitted).
Additionally, district courts have statutory authority "to reverse or
Under the second step, the Court must "turn to the question [of] whether further administrative proceedings would be useful." Id. At this stage, the Court considers "whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether claimant's entitlement to benefits is clear under the applicable legal rules." Id. at 1103-04. Dr. McDougall opined that Mr. Norris suffered a "severe" limitation in his ability to relate appropriately to supervisors as Mr. Norris "is not able to tolerate and respond appropriately to the pressures and expectations of a normal work setting." ECF No. 9-8 at 182, Tr. 859. No other treating or examining physician opined that Mr. Norris had no difficulty interacting with supervisors. See ECF No. 9-8 at 150, Tr. 827 (Dr. MacLellan's opinion that Mr. Norris has difficulty getting along with supervisors); ECF No. 9-8 at 52, Tr. 729 (Dr. Thompson's opinion that Mr. Norris has difficulty getting along with supervisors). Although the medical providers differ on the severity of the limitation, only nonexamining physicians Drs. Postovoit, Bailey, and Martin opine that Mr. Norris' limitation concerning supervisors would allow him to potentially function in a work-setting.
The Court can find no basis to allow the Commissioner yet another opportunity to discount the opinions of examining physicians in favor of nonexamining physicians. See Garrison, 759 F.3d at 1021. As such, the Court finds that the record is clear that Mr. Norris has a functional limitation in his ability to interact appropriately with supervisors.
Under the third step, the Court must determine whether, "if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Id. at 1020. Mr. Norris' counsel asked the VE whether an individual with a "marked" limitation in their ability to interact appropriately with supervisors, in conjunction with a number of other "marked" social limitations, could find work in the national economy. ECF No. 9-2 at 92-93, Tr. 91-92. The VE responded that "I would not expect such an individual to be able to maintain employment for any substantive period of time in any job." ECF No. 9-2 at 93, Tr. 92. The VE had previously defined "marked" as a "frequent," but not "constant," level of limitation. ECF No. 9-2 at 92, Tr. 91.
The "credit-as-true" rule does not require a VE to "address the precise work limitations established by the improperly discredited testimony." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004). "Requiring remand for further proceedings any time the vocational expert did not answer a hypothetical question addressing the precise limitations established by improperly discredited testimony would contribute to waste and delay and would provide
Crediting Dr. McDougall's opined "severe" limitation as to Mr. Norris' ability to interact appropriately with supervisors as true, the Court finds that the ALJ would be required to find Mr. Norris disabled on remand. The VE testified that an individual with a "marked" or "frequent" inability to interact appropriately with supervisors, in conjunction with other traits shared by Mr. Norris, would not be able to find work in the national economy. ECF No. 9-2 at -92-93, Tr. 91-92. The VE previously had testified that Mr. Norris would be unable to return to any of his prior occupations. ECF No. 9-2 at 84, Tr. 83. As such, the Court finds that Dr. McDougall's opinion, when properly credited, established that Mr. Norris would be unable to maintain employment due to his social limitations.
The Court also considers the lengthy delay that Mr. Norris has faced in his pursuit of benefits. Mr. Norris first applied for benefits on December 13, 2006, over nine years ago. ECF No. 9-2 at 12, Tr. 11. Ninth Circuit precedent establishes that it is appropriate for the Court to consider the length of time a claimant has been delayed by administrative proceedings. See Vertigan v. Halter, 260 F.3d 1044, 1054 (9th Cir.2001) ("Based on the result of Appendix 2 and the fact that Ms. Vertigan initially applied for disability benefits back in 1985, more than sixteen years ago, we find it appropriate to remand for an award of benefits."); see also Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir.1988) ("Delaying the payment of benefits by requiring multiple administrative proceedings that are duplicative and unnecessary only served to cause the applicant further damage — financial, medical, and emotional."). To remand for further proceedings would give the Commissioner a third bite at the apple, when the "credit-as-true" rule stands to deter both second bites and an unfair "heads we win; tails, let's play again" system of disability benefits adjudication. Benecke, 379 F.3d at 595; see also Treichler, 775 F.3d at 1111 (Tashima, J., dissenting) (dissenting from decision to remand for further proceedings as "the majority gives the Commissioner precisely that second bite at the apple and makes a shambles of the credit-as-true rule").
As the Court finds that the evidence conclusively demonstrates that Mr. Norris is unable to sustain gainful employment for any amount of time in the national economy, the Court will not grant the Commissioner a third bite at the apple and prolong Mr. Norris' pursuit of disability benefits into the next decade. Under Ninth Circuit precedent, a remand for the calculation and award of benefits is both appropriate and required.
Accordingly,
The District Court Clerk is hereby directed to enter this Order, enter judgment accordingly, provide copies to counsel, and to
