CANDY W. DALE, Magistrate Judge.
Currently pending before the Court is Kaci Rae Jackson's Petition for Review of the Respondent's denial of social security benefits, filed on March 5, 2018. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR), and for the reasons that follow, will remand the decision of the Commissioner.
On December 27, 2013, Petitioner filed two separate applications for a period of disability and disability insurance benefits. One was filed under Title II and the second was filed under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, and §§ 1381-1383f.
The ALJ conducted a supplemental hearing on May 4, 2017, at which Petitioner appeared and testified by telephone, and the ALJ considered testimony from a second vocational expert. The ALJ issued a decision on May 22, 2017, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on January 5, 2018.
Petitioner timely appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
At the time of the alleged disability onset date of March 1, 2009, Petitioner was twenty-nine years of age. Her date last insured for purposes of her Title II claim was December 31, 2013. Petitioner completed high school, and her past relevant work experience includes work as a nurse assistant, fast food worker and sales clerk.
The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantial gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since her alleged onset date of March 1, 2009. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's lumbar degenerative disc disease; right hand wound, status post amputation of the right thumb distal phalanx; chronic obstructive pulmonary disease (COPD); bipolar II disorder; generalized anxiety disorder; posttraumatic stress disorder (PTSD); obsessive-compulsive disorder (OCD); attention deficit hyperactivity disorder (ADHD); borderline personality disorder; and methamphetamine dependence severe within the meaning of the Regulations.
Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ considered Listings 1.04 (Spine Disorders), 1.05 (Amputation), 3.02 (COPD), 12.04 (Affective Disorder), 12.06 (Anxiety and OCD), 12.08 (personality disorder), 12.11 (ADHD), and 12.15 (PTSD).
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity (RFC) and next determine, at step four, whether the claimant has demonstrated an inability to perform past relevant work.
The ALJ determined Petitioner retained the RFC to perform light work, with limitations. In determining Petitioner's RFC, the ALJ found that Petitioner's impairments could reasonably be expected to cause the symptoms she alleged, but that her statements about the intensity, persistence, and limiting effects of her conditions were not entirely consistent with the medical evidence and her daily activities. (AR 29.)
Based upon her evaluation of the record and the hypotheticals posed to the vocational experts, the ALJ found Petitioner was able to perform work as a photocopying machine operator, office helper, and postage machine operator, all of which constitute unskilled, light work jobs available in significant numbers in the national economy. Consequently, the ALJ determined Petitioner was not disabled.
Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he not only cannot do her previous work but is unable, considering her age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist that supports the petitioner's claims. 42 U.S.C. § 405(g); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
Petitioner argues the ALJ erred at step three of the sequential evaluation, because the ALJ did not evaluate the opinions of consultative examiners Rebecca Alexander, Ph.D., and Dr. Stephen Brennan, Psy.D., both of whom examined Petitioner and authored reports dated March 5, 2017, and March 11, 2014, respectively. (AR 760, 982.) Petitioner argues that, if the two opinions are credited at step three, they establish Petitioner met the "Paragraph B" criteria of the listings identified in section 12.00 of the listing of impairments, and Petitioner would have been found disabled at step three for the purpose of Petitioner's Title XVI claim.
Respondent argues the ALJ correctly evaluated the medical opinions, and that the ALJ's findings at step three constituted a reasonable interpretation of the evidence. Respondent argues also that Petitioner did not adequately raise the issue whether the ALJ properly evaluated the opinions of examining psychologists Alexander and Brennan, and therefore waived this issue for judicial review.
To qualify as disabled at step three of the sequential evaluation, a claimant must meet or exceed the criteria for one of the listed impairments in Appendix 1 to Part 404 of the regulations. 20 C.F.R. § 404.1520(d). To meet a listing in Appendix 1 for a mental disorder, a claimant must satisfy criteria in paragraph A of the listings, which medically substantiate the presence of a mental disorder, and the criteria in paragraphs B or C, which describe the functional limitations associated with the disorder which are incompatible with the ability to work. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00A.
The ALJ found Petitioner's bipolar II disorder; generalized anxiety disorder; PTSD; OCD; ADHD; and borderline personality disorder severe, consistent with the diagnoses by various medical practitioners treating or examining Petitioner. (AR 26.) Petitioner therefore meets the paragraph A criteria of Listings 12.04, 12.06, 12.08, 12.11, and 12.15, which listings the ALJ considered. (AR 26.)
To satisfy the paragraph B criteria, Petitioner's paragraph A impairments must result in "extreme" limitation of one, or "marked" limitation of two, of the four areas of mental functioning listed in paragraph B. These four areas are:
Listing 12.00(E). A marked limitation means that a claimant's ability to function independently, appropriately, effectively, and on a sustained basis in a particular area is seriously limited. 20 C.F.R. § pt. 404, subpt. P, app. 1, 12.00F.2. An extreme limitation means that a claimant is not able to function in a particular area independently, appropriately, effectively, and on a sustained basis. Id.
The record prior to the ALJ's first hearing on August 24, 2016, contained a psychological evaluation by Dr. Brennan. He completed an "Aid and Assist Evaluation" on March 11, 2014, in conjunction with criminal proceedings brought against Petitioner. (AR 760.) The purpose of his examination was to evaluate Petitioner and to offer a psychological opinion whether she was able to aid and assist in her own defense at that time. In addition to conducting a mental status examination and clinical interview of Petitioner, Dr. Brennan reviewed police reports and legal records dated November 8, 2013, through November 14, 2014, and medical records from December 26, 2013, through February 5, 2014. (AR 760.)
Although Dr. Brennan did not complete a mental source statement of ability to do work related activities, he did comment on Petitioner's competency and mental functioning. In his opinion, Petitioner's competency was impaired by depression and borderline personality disorder, but "not enough to render her unable to aid and assist" in her defense. (AR 767.) He stated that:
(AR 767.)
After the first hearing concluded on August 24, 2016, the ALJ ordered a consultative psychological examination. (AR 79.) She interviewed Petitioner on March 1, 2017, and reviewed Dr. Brennan's March 11, 2014, report; progress notes from Carolyn Moore, James James, D.O., and Christopher Simmons, LCSW, covering the period between September 29, 2014, and March 21, 2016; and chart notes from Vitus Nwaele, M.D., Tracey Morey Smythe, PA-C, Christopher Rodriguez, PA, and Richard Havard, M.D.
Dr. Alexander's diagnostic impression was borderline personality disorder; bipolar II disorder, depressed; posttraumatic stress disorder; obsessive compulsive disorder; stimulant use and alcohol use disorder, early sustained remission; and attention deficit hyperactivity disorder. She explained that Petitioner's borderline personality disorder "markedly" interfered with Petitioner's ability to interact appropriately in the workplace with employers, co-workers, and authority figures. (AR 988.)
Dr. Alexander also completed a Medical Source Statement of Ability to do Work-Related Activities (Mental). (AR 989-991.) She determined Petitioner had marked limitations in her ability to carry out complex instructions and moderate limitations in her ability to carry out simple instructions; marked limitations in her ability to make judgments on complex, work-related decisions and moderate limitations in her ability to make judgments on simple work-related decisions and carry out simple instructions; and marked limitations in her ability to interact appropriately with the public and co-workers, and to respond appropriately to usual work situations. Dr. Alexander explained that Petitioner's borderline personality disorder, periods of severe mood instability, anger, hostility, and other traits would interfere with Petitioner's ability to interact appropriately in the workplace, and interfere with Petitioner's ability to concentrate, persist, or maintain pace. (AR 990.) Last, Dr. Alexander did not believe Petitioner could manage benefits in her own best interest. (AR 991.)
Without commenting on either physicians' opinion at step three,
The ALJ made the following findings corresponding to the four areas of mental functioning listed in paragraph B. First, she concluded Petitioner had moderate limitation in understanding, remembering or applying information, citing education records from 2013 where she earned "C's" and "D's," and generally concluding that medical records showed impaired memory only when Petitioner was using illicit substances. (AR 27.) The ALJ also relied upon Petitioner's ability to maintain hygiene, shop, prepare meals, and attend doctor appointments as evidence of her ability to understand, remember, and apply information. (AR 27.)
Second, the ALJ determined that Petitioner had moderate limitation in interacting with others, because she could shop, live with others, maintain relationships with significant others, and attend church. (AR 27.)
Third, the ALJ found only moderate limitations with respect to Petitioner's ability to concentrate, persist or maintain pace. The ALJ's conclusion was based upon Petitioner's ability to manage her hygiene, prepare meals, perform chores, shop, care for pets, read, watch television, attend church, use a telephone, handle her own medical care, and lead AA groups. (AR 27.) The ALJ also cited Petitioner's work attempts after the alleged onset date. (AR 27.)
Fourth, the ALJ determined Petitioner exhibited mild limitations in adapting or managing herself, because she could manage her self-care and personal hygiene, care for her pets, and at times she cared for her children. The ALJ concluded also that the record established Petitioner's mental health symptoms were effectively managed with medication compliance and sobriety.
In contrast to the ALJ's findings for the second, third, and fourth areas of mental functioning comprising the paragraph B criteria, above, Dr. Alexander found Petitioner exhibited marked impairment in interacting with others, maintaining concentration, persistence and pace, and adapting or managing oneself . (AR 990.) Dr. Alexander explained that Petitioner's borderline personality traits included a "pervasive pattern of instability of interpersonal relationships, impulsivity including substance and alcohol abuse, recurrent suicidal ideation, affective instability due to a marked reactivity of mood, inappropriate, intense anger and difficulty controlling anger, and poor empathy. (AR 987.) She stated that Petitioner's ability to concentrate, persist or maintain pace was affected by ADHD, OCD, and mood lability. (AR 988.)
Dr. Brennan's earlier report also supports a finding of marked limitations in Petitioner's ability to adapt or manage oneself. He stated that Petitioner had a limited ability to soothe herself and modulate stress, and had a low threshold for discomfort. (AR 767.) For instance, the reason for the referral of Petitioner to Dr. Brennan was because Petitioner "broke down in court." (AR 761.) Petitioner was also "very tearful" through much of the interview, (AR 761), exhibited an angry affect, (AR 761), and described a past incident where she was arrested for public indecency (for having sex on the side of a road), (AR 761). One of the charges brought against Petitioner was resistance to arrest, such that she had to be pepper sprayed. (AR 760.)
The ALJ's decision provides no insight as to the relative weight she gave the opinions of Drs. Alexander and Brennan on the step-three issue. The Court agrees with Petitioner that, if credited, Dr. Alexander's and Dr. Brennan's consultative examination findings would establish marked limitation in three of the four paragraph B criteria enumerated in Listings 12.04, 12.06, 12.08, 12.11, and 12.15. Given this, the ALJ's failure to discuss the relevant medical opinions at step three constitutes error, as more fully explained below.
First, the Court finds the ALJ relied selectively upon evidence from a limited time period, and did not consider the record as a whole, when making the step three findings. Selective reliance on the evidence, reported out of the context of the record as a whole, is error. Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). For instance, the ALJ's assessment of moderate limitation in interacting with others includes a cite to two pages contained within forty-nine pages of mental health treatment records from the Salem Clinic between August 2, 2011, to July 30, 2012; one page from the Linn County Department of Health Services treatment records dated December 17, 2013, to February 27, 2014 (fourteen pages); and two pages from later records of the Linn County Department of Public Health dated July 8, 2014, to September 16, 2014 (eighteen pages). (AR 27.) In contrast, both Drs. Alexander and Brennan, in addition to interviewing Petitioner, reviewed police reports and medical records spanning longer periods of time throughout 2013, 2014, 2015, and 2016.
Next, the ALJ indicated Petitioner's ability to live with others and maintain relationships with significant others demonstrated she could interact appropriately. But, the ALJ selectively left out that these same records indicate Petitioner's children were removed from her home on the grounds of child endangerment; she suffered physical and verbal abuse from her husband of ten years; she was arrested for assault because she thought someone stole her CDs (AR 825); her social network was described as limited; and, since moving to Idaho to live with her father, she spent most of her time "in bed," according to her testimony (AR 57). Petitioner testified also that she often quit her various jobs after only a few months, because of anger issues. (AR 65-66.) The Court also notes that Petitioner's letter, written in defense of her claim on July 21, 2017, was peppered with profanity. (AR 365-367.)
The ALJ cited Petitioner's ability to shop and attend church as evidence she could interact appropriately with others, and maintain concentration and pace. However, the ALJ offered no quantitative data as to how much time Petitioner spent shopping or attending church. It is unclear how these two activities, which can be performed without talking to anyone, demonstrate Petitioner interacted well with others. At most, these two activities demonstrate Petitioner could venture out in public.
The ALJ concluded Petitioner's work history supported her ability to maintain concentration, persistence and pace. However, Petitioner's work history ended in March of 2010. (AR 291-292, 299.) Several positions lasted only a few months. (AR 314.) And diagnostic tests administered and reflected in the records identified by the ALJ in support of her conclusion indicated Petitioner's life during the time she did work orbited around drinking and that she neglected social and recreational activities. (AR 468.)
The ALJ stated Petitioner's ability to care for pets supported her conclusion that Petitioenr had the ability to concentrate and could adapt or manage herself. Petitioner stated she had cats that fed themselves, and their care required changing their litter box. (AR 366.)
The ALJ did not explain how maintaining hygiene, preparing simple meals, using a telephone, reading, watching television, and performing household chores equates to the ability to sustain the persistence, pace, and concentration required to maintain full time employment. "The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Petitioner reported the same or similar level of activities to Dr. Alexander, who did not find the activities significant. (AR 984.)
The most incongruous conclusion, however, by the ALJ is that Petitioner had only a mild limitation in her ability to adapt or manage herself. In contrast, the record as a whole reflects otherwise. Petitioner broke down during court proceedings, and a competency evaluation was ordered in 2014. Petitioner's children were removed from her home. The record contains evidence of two suicide attempts. Petitioner was evicted from her apartment in April of 2016. (AR 883.) She became hostile towards her therapist during one appointment, and hung up on another occasion during a follow up phone call. (AR 883, 890.) She was openly hostile toward Dr. Alexander. (AR 982.) The record reflects numerous missed counseling appointments. (AR 819, 875, 881, 904, 909.) Petitioner reportedly forgot she could set up "Ride Line" to attend scheduled counseling appointments. (AR 900.) Petitioner increased her medication on her own instead of consulting her physician. (AR 829, 864.) And, rather than see a doctor when her thumb became infected, Petitioner waited over one month, resulting in a severe infection and later amputation. (AR 918, 921, 923.)
There is no medical evidence of record contradicting the findings of Drs. Alexander and Brennan.
Given the ALJ's error in failing to adequately explain her step-three decision with reference to Dr. Alexander's and Dr. Brennan's opinions, this Court has discretion to remand for further proceedings. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). Where the Commissioner "is in a better position that this court to evaluate the evidence, remand is appropriate." Id. (citing McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir.1989)). In this case, the Commissioner is in a better position to reevaluate all of the medical evidence to more adequately address step three. For example, the Commissioner could determine that testimony from a medical examiner is necessary to decide whether Dr. Alexander's and Dr. Brennan's opinions are reflective of the record as a whole and support a finding that Petitioner met one of the listings of section 12.00. Because of the possible need for additional medical evidence and testimony, the ALJ is in a better position to evaluate the evidence, and this Court will remand for further proceedings.
