JAMES P. DONOHUE, Magistrate Judge.
Plaintiff Wesley Hayes Collins appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be reversed and remanded for further proceedings.
At the time of the administrative hearing, plaintiff was a 31 year-old man with a GED degree. Administrative Record ("AR") at 34-35. His past work experience includes employment as a kitchen helper, lubrication technician, janitor, cashier, sandwich maker, and fast food worker. AR at 18. Plaintiff was last gainfully employed in 2007. AR at 12.
On July 10, 2008, plaintiff filed a claim for SSI payments. On June 27, 2008, he filed an application for DIB, alleging an onset date of November 2, 2006. AR at 10. Plaintiff asserts that he is disabled due to shoulder bursitis, bipolar disorder, attention deficit hyperactivity, anxiety disorder, history of polysubstance dependence, with heroin dependence in remission on agonist therapy. AR at 12.
The Commissioner denied plaintiff's claim initially and on reconsideration. AR at 10. Plaintiff requested a hearing which took place on June 15, 2010. AR at 26-60. On July 28, 2010, the ALJ issued a decision finding plaintiff not disabled and denied benefits based on his finding that plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 10-20. Plaintiff's administrative appeal of the ALJ's decision was denied by the Appeals Council, AR at 1-4, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). Plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. No. 4.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and 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); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:
Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).
As the claimant, Mr. Collins bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On July 28, 2010, the ALJ issued a decision finding the following:
The principal issues on appeal are:
1. Did the ALJ properly evaluate the medical opinions?
2. Did the ALJ err in assessing plaintiff's RFC?
3. Did the ALJ err in finding the plaintiff less than credible? Dkt. No. 16 at 2.
As a matter of law, more weight is given to a treating physician's opinion than to that of a non-treating physician because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating physician's opinion, however, is not necessarily conclusive as to either a physical condition or the ultimate issue of disability, and can be rejected, whether or not that opinion is contradicted. Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of a treating or examining physician, the ALJ must give clear and convincing reasons for doing so if the opinion is not contradicted by other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1988). "This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely state his conclusions. "He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such conclusions must at all times be supported by substantial evidence. Reddick, 157 F.3d at 725.
The opinions of examining physicians are to be given more weight than non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Like treating physicians, the uncontradicted opinions of examining physicians may not be rejected without clear and convincing evidence. Id. An ALJ may reject the controverted opinions of an examining physician only by providing specific and legitimate reasons that are supported by the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Opinions from non-examining medical sources are to be given less weight than treating or examining doctors. Lester, 81 F.3d at 831. However, an ALJ must always evaluate the opinions from such sources and may not simply ignore them. In other words, an ALJ must evaluate the opinion of a non-examining source and explain the weight given to it. Social Security Ruling ("SSR") 96-6p, 1996 WL 374180, at *2. Although an ALJ generally gives more weight to an examining doctor's opinion than to a non-examining doctor's opinion, a non-examining doctor's opinion may nonetheless constitute substantial evidence if it is consistent with other independent evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Orn, 495 F.3d at 632-33.
Plaintiff's initial argument is that the ALJ erred in his evaluation of the medical opinions of Dr. Phyllis Sanchez, Dr. David Mashburn, Dawn Finney and Alma Zumiga. Plaintiff also argues that by giving significant weight to the opinions of Dr. Kraft, a non-treating, non-examining psychologist, the ALJ violated the hierarchy of medical opinions set forth above.
Phyllis Sanchez, Ph.D., saw and evaluated plaintiff on October 31, 2008. AR at 446-54. Dr. Sanchez spoke with plaintiff, administered a mini-mental exam, a Beck Depression evaluation, and prepared a summary of her test evaluations. On the Washington State Department of Social and Health Services ("DSHA") evaluation form, she opined plaintiff had severe mental limitations in the areas of verbal expressions of anxiety or fear, expression of anger, and paranoid behavior. She also found moderate limitations in the areas of depressed mood, suicidal trends, social withdrawal, motor agitation, and hallucinations. She diagnosed post-traumatic stress disorder and panic disorder. AR at 443. She also opined that plaintiff had "marked" severity limitations in his abilities to perform routine tasks, control physical or motor movements and maintain appropriate behavior, and his ability to care for himself, including personal hygiene and appearance, with "moderate" severity in his abilities to understand, remember and follow simple and complex instructions, perform routine tasks, interact appropriately to co-workers and supervisors and tolerate pressure of a normal workday setting. AR at 444.
As to her opinions, the ALJ noted:
AR at 17.
Plaintiff argues that the ALJ "improperly rejected" Dr. Sanchez's evaluation and that a close review of her report "reveals a very different assessment than that of the ALJ, who improperly ignores the vast majority of Dr. Sanchez's findings." Dkt. No. 16 at 14. A close review of her report, however, confirms the ALJ did not err in his assessment of Dr. Sanchez's evaluation. Dr. Sanchez's mini-mental state testing does not coincide with moderate to marked cognitive limitations. Dr. Sanchez reported plaintiff scored 28/30 on the mental examination. AR at 448. A score of 25 or higher on a mini-mental examination reflects normal cognitive functioning. Folstein MF, Solstein SE, McHugh PR. "Mini-mental state: A Practical Method for Grading the Cognitive State of Patients for the Clinician," 12 J Psychiatric Research 189-98 (1975).
As to the level of plaintiff's social functioning limitations, Dr. Sanchez commented patient "quite depressed. No work in a while w/problems w/mood, past criminal record both interfere with ability to find job." AR at 448. To be disabled, a plaintiff must establish that he is unable to work, due to "medically determinable impairments." 42 U.S.C. § 405(g). Dr. Sanchez's opinions were given less weight in the social functioning area because they were based, at least in part, on non-relevant considerations — namely that employers might not be willing to hire a specific person based on reasons other than his medically determinable impairments. 20 C.F.R. §§ 404.1566, 416.966.
The ALJ reviewed Dr. Sanchez's test results in this case, and found that they did not support the level of cognitive impairment opined by Dr. Sanchez. In addition, the opinion regarding social functioning limitations was based, at least in part, on observations not related to the disability review standards. This is not, as suggested by plaintiff, an attempt to play doctor and make independent medical findings. Dkt. No. 21 at 2. Rather, this is, in fact, the responsibility of the ALJ as part of his obligation to review the medical evidence in the first instance. An ALJ does not err when he rejects a medical opinion that is brief, conclusory, and inadequately supported by or, as naturally follows, contradicted by the tests results. Thomas, 278 F.3d at 957. The ALJ did not err in his evaluation of Dr. Sanchez's opinions.
Dawn Finney is a mental health counselor who filled out two DSHS psychological evaluations regarding plaintiff, one in August 2009, the second in February 2010. AR at 511-16, 505-10. In addition, she submitted a single page letter. AR at 517. In her reports, she opines that plaintiff suffers from depression, attention deficit disorder and anxiety disorder. AR at 506, 512. She found only mildly severe cognitive limitations and social functioning limitations, with the exception of plaintiff's ability to respond appropriately and to tolerate the pressures of a normal work setting, as to which she opined that the severity was moderate. AR at 508, 514. When asked what work the plaintiff was able to perform, despite his impairments, she first opined "Light labor that does not involve lifting overhead for any consistent time." AR at 514. The second opinion was a bit more specific, which stated: Possibly light labor that does not involve lifting overhead or lifting any weight over 30 pounds safely." AR at 508.
As to Ms. Finney's opinions, the ALJ noted:
AR at 17. Plaintiff argues that the ALJ erred, because the comment regarding his possible return to work only applied to his physical limitations, not his mental impairments, and that in so misconstruing her comments, the ALJ ignored the majority of the report dealing with plaintiff's mental impairments. Dkt. No. 16 at 13.
Unfortunately, it is plaintiff who is misreading the report of Ms. Finney. Not once, but twice, Ms. Finney opined that plaintiff was capable of engaging in light labor "despite his/her impairments." Not once, but twice, Ms. Finney identified the majority of his limitations as mild, with only the ability to respond to the pressure of a normal workday setting as "moderate." Not once, but twice, Ms. Finney indicated that the length of time that plaintiff would be impaired to the degree found (mostly mild but one moderate finding) would be a maximum of 9 months. The ALJ's assessment of Ms. Finney's opinions is fully consistent with her reports. The ALJ did not err in his assessment of Ms. Finney's opinions.
In May 2007, Dr. Mashburn conducted a DSHS evaluation of plaintiff. AR at 435-41. As to plaintiff's functional mental disorders, Dr. Mashburn opined plaintiff had a "marked" severity in his depression, "moderate" severity in his verbal expression of anxiety, social withdrawal, motor agitation and motor retardation, and hyperactivity. He rated the severity level as "mild" for suicidal trends, paranoid behavior, hallucinations and physical complaints. He opined that there was no indication of drug abuse. AR at 436. In terms of his functional limitations, Dr. Mashburn assigned a severity level of "marked" to plaintiff's ability to perform routine tasks, "moderate" level of severity to plaintiff's ability to understand complex instructions, interact appropriately in public contacts, respond to pressures of a normal work setting and maintain appropriate behavior. He opined that plaintiff had a "mild" level of severity involving his ability to understand, remember and follow simple instructions, learn new tasks, perform routine tasks, relate appropriately to co-workers and supervisors and hygiene and appearance. AR at 437. He described his thought process as logical, appropriate and responsive, diagnosed him with probable major depression with mild psychotic symptoms, ADHD, R/O bipolar, and alcohol abuse in remission. He also assigned a Global Assessment of Functioning ("GAF") score
The ALJ assigned "little weight" to Dr. Mashburn's opinion:
AR at 18. Plaintiff argues the ALJ erred, and that the ALJ simply gave short shrift to Dr. Mashburn's opinions, and failed to otherwise recognize that as an examining physician, the ALJ was required to provide specific and legitimate reasons, supported by the record, before rejecting them. The Commissioner responds that the alleged inconsistency and failure to be aware of plaintiff's heroin abuse justifies rejection.
The ALJ did err in his evaluation of Dr. Mashburn's opinions. The alleged questionnaire inconsistency used to reject all of the opinions and testing of Dr. Mashburn relates to the following:
AR at 438. The "marked" severity limitation in plaintiff's cognitive functions was identified as plaintiff's "ability to perform routine tasks." Dr. Mashburn indicated only "mild" limitations in plaintiff's ability to learn new tasks, and ability to understand and follow simple instructions, and "moderate" severity limitations on his ability to understand, remember and follow complex instructions. AR at 437. It is not apparent on its face, and certainly the ALJ's decision does not make clear what the alleged inconsistency or contradiction is. Accordingly, the Court cannot find that the ALJ offered specific and legitimate reasons supported by the record that would warrant the rejection of Dr. Mashburn's opinions. This will require remand for further proceedings so that the ALJ can reevaluate plaintiff's mental impairments including Dr. Mashburn's opinions, consistent with the standards for doing so set forth in Section VII (A)(1) above.
In April 2008, Alba Zumiga, LMHC, submitted a DSHS psychological evaluation form. With respect to plaintiff functional mental disorders, Ms. Zumiga opined plaintiff had a "marked" level of severity impairments in anxiety, expressions of anger, and paranoid behavior, "moderate" levels of severity in depressed mood, suicidal trends, social withdrawal, motor agitation and hallucinations, and a "mild" level of severity impairment in hyperactivity, and a severe level of impairment in his physical complaints and his global illness. AR at 443. She also opined his functional limitations were "markedly" impaired in the ability to perform routine tasks, personal hygiene, and to maintain personal behavior; "moderately" impaired regarding his ability to understand and follow simple and complex instructions, exercise judgment, relate to co-workers and supervisors and tolerate the pressures of a normal workday setting; and "mildly" impaired in his ability learn new tasks and interact appropriately in public contacts. AR at 444. She diagnosed him with PTSD and panic disorder. AR at 443.
The ALJ gave Ms. Zumiga's evaluation little weight:
AR at 18. The ALJ's analysis is simply too summary to accept. First, it is unclear what the relationship was between plaintiff and Ms. Zumiga. For example, if plaintiff were seen frequently by Ms. Zumiga, then the opinions would have more weight, even if "clinical findings" were not included. The ALJ did not ask about this during the plaintiff's hearing, nor did he develop the record to ascertain this information. There is, however, some reason to believe she had more than a short-term involvement with plaintiff's treatment. When the questionnaire asked "Describe the effects of prescribed medications on the individual's ability to perform normal day to day work activities," Ms. Zumiga noted "well reported," suggesting substantial familiarity with the records or with plaintiff. AR at 444. Second, it is unclear what daily activities the ALJ believes contradict Ms. Zumiga's opinions. The Commissioner suggests that the ALJ may have meant this to refer to plaintiff sitting on a riding lawn mower to mow sections of a 3 acre parcel. Dkt. No 17 at 9. There are two problems with this suggestion. First, the ALJ does not actually specify which daily activities, leaving it to the Commissioner to speculate as to what the ALJ intended. Second, assuming the Commissioner's speculation is what the ALJ had in mind, it is not self-evident that the ability to sit on a riding lawn mower is inconsistent with being unable to work. On remand, the ALJ should reevaluate the opinion of Ms. Zumiga.
Dr. Kraft is a State psychologist who reviewed plaintiff's records and concluded plaintiff was moderately limited in eight areas, but found he was capable of simple, routine tasks, and able to follow one and two step instructions. She also concluded he would have episodic lapses of attention that would not interfere with his ability to do productive work, and further found that he should have limited contact with the general public, but could have superficial contact with coworkers and supervisors. Finally, she opined that he could need additional time to learn new work procedures and benefit from assistance developing work related goals. AR at 409. The ALJ found this consistent with the medical record as a whole and assigned it significant weight. AR at 17.
As noted above, although an ALJ generally gives more weight to an examining doctor's opinion than to a non-examining doctor's opinion, a non-examining doctor's opinion may nonetheless constitute substantial evidence if it is consistent with other independent evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Orn, 495 F.3d at 632-33. Nevertheless, in light of the directed remand to reevaluate the opinions of Dr. Mashburn and Ms. Zumiga, the ALJ should also consider whether the opinion of non-examining physician Kraft should continue to receive significant weight.
The ALJ did not err in his assessment and treatment of the opinions of Dr. Sanchez and Ms. Finney. The ALJ did err in his evaluation of the opinions of Dr. Mashburn and Ms. Zumiga. On remand, the ALJ should reevaluate those opinions, consistent with this opinion. In addition, on remand, the ALJ should consider whether, in light of the reevaluation, Ms. Kraft's opinion should continue to receive significant weight. Because the ALJ erred in part in his evaluation of the medical evidence, the ALJ should revisit his RFC determination in light of this reevaluation,
The ALJ found plaintiff to be less than credible because, according to the ALJ (1) the allegations of symptoms and limitations were inconsistent with the objective medical evidence; (2) treatment notes indicated that plaintiff's symptoms improved with treatment; (3) plaintiff engaged in daily activities inconsistent with the degree of limitation reported; (4) inconsistent reporting regarding drug use; (5) plaintiff engaged in work at substantial gainful activity levels in the past, despite his ADHD; and (6) defendant has been convicted of a crime, which undermines his credibility. AR at 16-17.
As noted above, credibility determinations are within the province of the ALJ's responsibilities, and will not be disturbed, unless they are not supported by substantial evidence. A determination of whether to accept a claimant's subjective symptom testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281; SSR 96-7p. First, the ALJ must determine whether there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82; SSR 96-7p. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms solely because they are unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988). Absent affirmative evidence showing that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722.
When evaluating a claimant's credibility, the ALJ must specifically identify what testimony is not credible and what evidence undermines the claimant's complaints; general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722. The ALJ may consider "ordinary techniques of credibility evaluation" including a reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. Smolen, 80 F.3d at 1284; see also Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The record does not support several of the reasons provided for discounting plaintiff's credibility. First, although it seems that plaintiff's statements regarding his physical limitations are not consistent with limitations greater than the RFC assessment, the same cannot necessarily be said about plaintiff's mental impairments. Indeed, the remand directed to reevaluate portions of the medical evidence will require the ALJ to reconsider whether the plaintiff's testimony is inconsistent with the medical evidence. Second, although plaintiff made some progress dealing with his mental impairments as reported by Ms. Finney, the ALJ failed to indicate why demonstrating some progress on meeting established goals made plaintiff less credible. Third, the reliance on plaintiff's expressed desire to work is not something that would impugn plaintiff's credibility, but rather be something that would support it. Fourth, the fact that plaintiff had jobs in the past, despite his ADHD ignores the fact that as a general proposition, plaintiff was only able to hold many jobs for very short periods of time. Fifth, if activities of daily living are used to discredit plaintiff's credibility, then the ALJ should indicate how the actual abilities relate to the ability to work. For example, in the same report cited by the ALJ to demonstrate improvement, Ms. Finney also described mowing, which, as she described it as part of plaintiff's daily activities, hardly describes a person capable of full-time work: "Planned wake up time in early morning, gets out of bed within one hour, showers, intermittent yet inconsistent yard work (some days up to hours(with breaks)) other days 1 hour, time with children, physical therapy and medical appointments 3x per week." AR at 513.
On remand, the ALJ should revisit the issue of plaintiff's credibility.
For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court's instructions. A proposed order accompanies this Report and Recommendation.
