DOUGLAS F. McCORMICK, Magistrate Judge.
Kristine Baker ("Plaintiff") appeals from the final decision of the Administrative Law Judge ("ALJ") denying her applications for Social Security Child's Insurance Benefits ("CIB")
Plaintiff filed an application for SSI on June 10, 2012, and an application for CIB on June 27, 2012. Administrative Record ("AR") 105, 117, 196-208. After her applications were denied, she requested a hearing before an ALJ. AR 166-68. The ALJ held a hearing and heard testimony from Plaintiff, who was represented by counsel, as well as a vocational expert ("VE"). AR 65-104. In a written decision issued on July 19, 2013, the ALJ denied Plaintiff's claims for benefits. AR 30-38. In reaching her decision, the ALJ found that Plaintiff had the severe impairment of bipolar disorder, AR 32-33, and that despite her impairment, she retained the residual functional capacity ("RFC") to
AR 35. Based on the VE's testimony, the ALJ found that Plaintiff could perform two jobs that existed in significant numbers in the national economy. AR 37-38. She therefore concluded that Plaintiff was not disabled. AR 38.
Plaintiff requested review of the ALJ's decision. AR 24. After considering additional evidence, the Appeals Council denied Plaintiff's request on February 9, 2015.
Plaintiff argues that the ALJ (1) improperly rejected the opinions of Plaintiff's treating psychiatrist, Dr. Richard M. Deamer; (2) formulated an RFC assessment that was unsupported by substantial evidence and posed an "incomplete and inaccurate" hypothetical to the VE; (3) failed to resolve a potential conflict between the Dictionary of Occupational Titles ("DOT") and the VE's testimony; (4) improperly discredited Plaintiff's testimony; and (5) improperly assessed and rejected the third-party oral and written testimony. Joint Stipulation ("JS") at 2-3. The Court addresses these issues in an order different from that followed by the parties.
Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for rejecting the opinions of her treating psychiatrist, Dr. Deamer. JS at 3-12, 24-26. For the reasons discussed below, remand is not warranted on this ground.
Three types of physicians may offer opinions in Social Security cases: those who treated the plaintiff, those who examined but did not treat the plaintiff, and those who did neither.
In January 2012, Dr. Deamer noted that Plaintiff, who was then 17 years old, complained of "bipolar mood switches for at least 2-3 years," and had been on "a plethora of medications that have helped" that condition. AR 266. He noted that all of her medication was "relatively well-tolerated."
In April 2012, Dr. Deamer noted that Plaintiff had "read my initial notes/commentary" and "seemed in agreement with most of my findings." AR 267. He noted that Plaintiff's "[m]ood seems stable" and that she seemed to be "doing better with her affective status than" her sister, who also suffered from bipolar disorder.
In July 2012, Dr. Deamer noted that Plaintiff's "[m]ood seems stable" and she was applying for disability. AR 342. He noted that she had "yet to finish high school" and would probably "go[] for her GED instead."
In September 2012, Dr. Deamer noted that Plaintiff reported being "subject to more manic episodes of late" and she was "wondering if `[her] lithium is high enough.'" AR 309. He noted that because Plaintiff was taking "only 900 mg/day, divided dosages, and tends to take irregularly, this might be problematic."
In October 2012, Dr. Deamer noted that "[o]verall," Plaintiff's "affective status seems [within normal limits] for a young adult severely affected with bipolarity," and that she was "still subject to situational types of stress, for instance a family dog's illness" and she was "prone to panic dysphoria on shopping trips." AR 310. He noted that Plaintiff had been "turned down for disability but will be appealing in the future."
In January 2013, Dr. Deamer wrote a letter to the Social Security Administration, stating that he believed that Plaintiff was "unable to hold down any vocational status at this time due to the nature of her mood disorder." AR 344. He wrote that Plaintiff was "unable to work for one year, but will be assessed periodically during that time frame and, if able, will be released for work accordingly."
In February 2013, Dara Goosby, a psychologist, reviewed Plaintiff's medical records and completed a Psychiatric Review Technique ("PRT") assessment and mental-RFC assessment. AR 146-51. In the PRT assessment, Dr. Goosby found that Plaintiff had moderate restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, and pace; and no repeated episodes of decompensation, each of extended duration. AR 147. After summarizing the medical evidence, Dr. Goosby concluded that Plaintiff "appears capable of simple work with limited public contact in order to minimize the stress of work and potential triggering of [symptoms]."
In the mental RFC assessment, Dr. Goosby found that Plaintiff did not have any understanding or memory limitations. AR 150. Dr. Goosby believed that Plaintiff was moderately limited in her ability to carry out detailed instructions, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, and interact appropriately with the general public. AR 150-51. She was "not significantly limited" in her ability to carry out very short and simple instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, work in coordination with or in proximity to others, make simple work related decisions, accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers, among other things.
Dr. Goosby concluded that Plaintiff was "limited to carrying-out . . . simple 1-2 step tasks in order to limit the stress of work and potential triggering of [psychiatric symptoms] over an 8hr day and 40 hr week." AR 150. She also opined that Plaintiff was "to have limited contact with the public to minimize the stress of work and due to anxiety [symptoms]." AR 151.
In March 2013, Dr. Deamer wrote a letter stating that Plaintiff had suffered from bipolar disorder since age 13. AR 346. Plaintiff had "tried to find work compatible with the nature of her affective disorder, but most recently was able to work as a cashier in a local pharmacy for only 4 days `until [her] anxiety went through the roof.'"
In June 2013, Dr. Deamer noted that Plaintiff and her sister were worried about Plaintiff's symptoms, including "issues with `manic rage,' her tendency to lose control, punching holes in the wall, and perhaps 3x/month, `[u]nable to sleep more than 2-3 hours/night,' when slipping into this state of mind." AR 354. Dr. Deamer noted that "[o]n further inquiry, much of this seems related to the fact that [Plaintiff's sister and brother-in-law], after 13 years of a troubled marriage, still get into shouting/hollering matches over how [Plaintiff's sister] is spending money."
In June 2013, Dr. Deamer completed a check-off form titled "Medical Opinion re: Ability to Do Work-Related Activities (Mental)." AR 347. Dr. Deamer opined that Plaintiff was precluded from performing most of the listed work functions for 15% or more of an 8-hour workday; those functions included, among others, remembering work-like procedures; maintaining sufficient attention and concentration to complete tasks in a timely manner; performing at a consistent pace without an unreasonable amount of rest periods; completing a normal workday without interruption from psychologically based symptoms; working in proximity to others without becoming distracted; dealing with work stress; understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for extended periods; and interacting with the general public.
Also in June 2013, Dr. Deamer completed a check-off form titled "Mental Residual Functional Capacity Statement." AR 349-52. In it, he opined that Plaintiff had a "chronic mental illness that has been somewhat responsive to a plethora of medications oriented to her affective status, but has never recovered full enough for serious consideration of employment/individuation." AR 349. Dr. Deamer again opined that Plaintiff was unable to perform most workplace activities for 15 percent or more of an 8-hour workday. AR 349-51. He believed Plaintiff would be "off task" for 30 percent of an 8-hour workday, would be absent from work for 5 or more days a month, and would be unable to complete an 8-hour workday for 5 or more days a month. AR 351. She would perform her job with less than 50 percent efficiency.
In July 2013, the ALJ issued her decision denying Plaintiff's claims for benefits. AR 30-38. In doing so, the ALJ accorded "little weight" to Dr. Deamer's opinions and the "most weight" to Dr. Goosby's mental-RFC assessment. AR 36.
In July 2013, just a few days after the ALJ issued her decision, Dr. Deamer wrote a letter to Plaintiff's attorney regarding the "recent changes in [Plaintiff's] medication regimen." AR 386. Dr. Deamer had "increase[d] her serum lithium regimen to 1350 mg/day while decreasing her Valium regimen," and he found that Plaintiff "seems to be responding to these changes rather well."
Contrary to Plaintiff's contention, the ALJ permissibly rejected Dr. Deamer's opinions based on the conflict between his findings of "extreme limitations" in his opinions and his "relatively benign treatment notes." AR 36;
The ALJ also rejected Dr. Deamer's opinions because he appeared to "rely quite heavily on the subjective report of symptoms and limitations provided by" Plaintiff. AR 36. Once an ALJ properly discounts a claimant's credibility, she is generally free to disregard a physician's opinion that was premised on the claimant's subjective complaints.
Plaintiff argues, however, that "[p]atient complaints are a fully acceptable tool in assessing their condition, especially in assessing mental impairments." JS at 9-10. Indeed, the Ninth Circuit has noted, in an unpublished opinion, that "[t]o allow an ALJ to discredit a mental health professional's opinion solely because it is based to a significant degree on a patient's `subjective allegations' is to allow an end-run around our rules for evaluating medical opinions for the entire category of psychological disorders."
Remand is not warranted on this ground.
Plaintiff contends that the ALJ improperly discredited her testimony and the third-party testimony of her sister, Andrea Abercrombie. JS at 50-55, 61-62. For the reasons discussed below, remand is not warranted on this ground.
To determine whether a claimant's testimony about subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.
If the claimant meets the first step and there is no affirmative evidence of malingering, the ALJ must provide specific, clear and convincing reasons for discrediting a claimant's complaints.
Moreover, an ALJ must consider all of the available evidence in the individual's case record, including third-party statements from caregivers and siblings. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006);
In an undated disability report, Plaintiff wrote that she had been disabled since June 20, 2009, because of bipolar disorder, anxiety disorder, and depression. AR 212.
In an August 10, 2010 function report, Plaintiff wrote that she lived in an apartment with her family. AR 225. Her daily activities included cleaning her house, cooking, smoking cigarettes, feeding and watering her dogs, taking out the trash, and wiping down the counters. AR 225-27. She had no problems with personal care. AR 226. She prepared "normal food" daily, which took 15 minutes. AR 227. She traveled by walking or riding in a car; she didn't drive because of her "20/50 vision" and "anxiety." AR 228. Plaintiff could not go out alone because of her anxiety.
Plaintiff shopped in stores and online for food, which would take "an hour +."
Also on August 10, 2010, Plaintiff's sister, Abercrombie, completed a third-party function report. AR 233-40. Abercrombie wrote that she lived with Plaintiff in an apartment. AR 233. Plaintiff's daily activities included helping with chores, including "simple cleaning," laundry, and washing dishes, and playing on the computer. AR 233, 235. Plaintiff also fed and watered her pets. AR 234. Plaintiff had no problem with personal care and she made sandwiches and frozen meals daily, which took about 15 minutes. AR 234-35. Abercrombie wrote that Plaintiff could not go out alone because of her anxiety and she did not drive because of her bad vision and anxiety. AR 236. Plaintiff shopped in stores, while accompanied, for food and household items once or twice a week for about an hour.
Abercrombie wrote that Plaintiff's anxiety and bipolar disorder affected her memory, concentration, understanding, and ability to complete tasks, follow instructions, and get along with others.
At the July 8, 2013 ALJ hearing, Plaintiff testified that she had attended high school up to the ninth or tenth grade before stopping because of her "anxiety and anger issues." AR 70, 86. She saw a psychiatrist about "once every three months" for medication but she did not see a therapist. AR 71. At some point, Plaintiff "quit taking [her] pills all together" because she "totally forgot to take [her] meds." AR 72-73.
Plaintiff testified that she "could not do a job to save her life" and that "the thought of working scare[d] the heck out of" her. AR 71. She had panic attacks when shopping in "big stores with lots of people." AR 73. She would have manic episodes two or three times a month, during which she would stay up for 24 to 48 hours then "crash" and sleep for 12 to 16 hours. AR 79-80. For a week following such an episode, Plaintiff would get "really angry at the minutest little things," and then the cycle would repeat. AR 81-82. She could focus and concentrate for 5 minutes "at the most." AR 83. Plaintiff would lie down two to three times a day for a total of 4 to 6 hours. AR 76-77.
Plaintiff was "really good friends" with three of her neighbors. AR 74-75. She had worked as a cashier in a pharmacy for 4 days in June 2009, but she had to stop because she "could not learn how to work the register." AR 84. She testified that she had panic attacks at home at least once a day.
Abercrombie also testified at the hearing. Abercrombie said that she received Social Security disability benefits for bipolar disorder and was home with her sister during the day. AR 97-98. Abercrombie functioned "at a higher level" than Plaintiff and cared for her "to the best of [her] abilities." AR 98. Abercrombie testified that in the morning, she would "set [Plaintiff] to a task like doing the dishes" but Plaintiff wouldn't do them and Abercrombie would have to do them herself at the end of the day. AR 99. Plaintiff was "scared to death to go out in public" and had "severe panic attacks."
Abercrombie did not think that Plaintiff could perform a "task at work," but she thought "not being around people might be something [Plaintiff] could do." AR 101. Abercrombie believed that Plaintiff would be "the type of employee that is constantly calling in" sick, and she sometimes wouldn't be able to get up for work. AR 102.
The ALJ found that Plaintiff's medically determinable impairment could reasonably be expected to cause the alleged symptoms, but that Plaintiff and Abercrombie's statements concerning the intensity, persistence and limiting effects of those symptoms were "not entirely credible." AR 36. For the reasons discussed below, the ALJ did not err.
As an initial matter, the ALJ apparently credited much of Plaintiff's testimony. For example, Plaintiff claimed to be unable to be around a lot of people, AR 73, unable to perform somewhat complicated tasks, like operating a cash register, AR 84, unable to concentrate, and unable to follow spoken directions well, AR 230; the ALJ accommodated those complaints by limiting Plaintiff to simple, repetitive, and nonstressful work away from the public and with minimal contact with coworkers, AR 35.
To the extent the ALJ partially discredited Plaintiff's subjective complaints, she provided a clear and convincing reason for doing so. Specifically, the ALJ found "strong indicators" that Plaintiff's symptoms were "well-controlled with the medication and neither [Plaintiff], nor her physician, thought that further treatment was necessary." AR 36. In support, the ALJ noted that Plaintiff's only treatment consisted of visiting Dr. Deamer once every couple months for medication refills, and that Dr. Deamer repeatedly noted that Plaintiff's symptoms were in "partial remission" and her mood was "stable." AR 36;
Nor did the ALJ err in partially discounting Abercrombie's statements. The ALJ found that Abercrombie's testimony was "cumulative to [Plaintiff's] allegations" and like Plaintiff's, it was "not supported by the treatment records showing that [Plaintiff] was well maintained on her medication." AR 37. Because the ALJ properly discredited Plaintiff's complaints and Abercrombie's report and testimony echoed those complaints, the ALJ necessarily gave a germane reason for according limited weight to Abercrombie's statements.
Remand is not warranted on these grounds.
Plaintiff contends that the ALJ's RFC assessment is not supported by substantial evidence and fails to include all of her functional limitations. JS at 26-34, 43-45. For the reasons discussed below, the Court agrees.
A claimant's "residual functional capacity" is the most a claimant can still do despite her limitations.
Here, the ALJ accorded the "most weight" to Dr. Goosby's mental-RFC assessment because it was supported by unspecified "medical signs and laboratory findings" and consistent with the record and because Dr. Goosby specialized in psychology. AR 36. But the ALJ nevertheless excluded from the RFC some of Dr. Goosby's specific findings. Most significantly, Dr. Goosby found, as part of her credited RFC assessment, that Plaintiff was "limited to carrying-out . . . simple 1-2 step tasks," AR 150, but the ALJ included in the RFC only a limitation to "simple, repetitive tasks," AR 35, which did not fully encompass Dr. Goosby's finding.
Plaintiff also argues that the ALJ failed to include provisions accommodating Dr. Goosby's findings that Plaintiff had moderate limitations in concentration, persistence, and pace; performing activities of daily living; completing a normal workday or workweek without interruption from psychologically based symptoms; and performing at a consistent pace without an unreasonable number and length of rest periods. JS at 29-31 (citing AR 147, 150). In response, Respondent mainly contends that Plaintiff's argument "ignores Dr. Goosby's additional explanation that Plaintiff's limitations would be addressed by simple work and limited contact with the public."
Plaintiff also contends that the ALJ should have included physical limitations in her RFC based on her poor eyesight, hearing loss, fibromyalgia, and obesity. JS at 31-34. Indeed, Dr. F. Wilson, a state-agency medical consultant, found that Plaintiff's vision loss was severe and resulted in "some mild limitations in clarity of distance and near" visual acuity. AR 146, 149. The ALJ, however, failed to address those findings or include any vision limitations in Plaintiff's RFC. And although the ALJ found that Plaintiff's history of ear infections was nonsevere, AR 33-34, she failed to clearly address the impact of any resulting hearing loss.
As for Plaintiff's fibromyalgia, the record contains only a few brief references to that condition and none of the medical evidence indicates how it was diagnosed or what symptoms it caused.
Remand is therefore warranted on this ground.
Plaintiff contends that the ALJ posed an "incomplete and inaccurate" hypothetical to the VE and failed to resolve a conflict between the DOT and the VE's testimony. Because remand is warranted based on the ALJ's errors in formulating Plaintiff's RFC, the Court does not reach those remaining issues.
The decision whether to remand for further proceedings is within this Court's discretion.
A remand is appropriate, however, where there are outstanding issues that must be resolved before a determination of disability can be made and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated.
For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the action is REMANDED for further proceedings.