BRIAN A. TSUCHIDA, Magistrate Judge.
Stephanie J. Marshall seeks review of the denial of her Supplemental Security Income and Disability Insurance Benefits applications. She contends the ALJ improperly (1) rejected the opinions of examining doctor Robert Parker, Ph.D., (2) discounted the testimony of her husband; (3) assessed her credibility; (4) assessed her residual functional capacity; and (5) failed to adequately develop the record. Dkt. 12 at 1. As discussed below, the Court recommends the case be
Ms. Marshall is currently 48 years old, has completed the 12th grade, and has worked manual labor jobs at various companies for the last 15 years.
Utilizing the five-step disability evaluation process,
Tr. 13-19.
Ms. Marshall contends the ALJ failed to give sufficient reasons to reject the opinions of examining doctor Robert Parker, Ph.D., rendered in a Washington State Department of Social and Health Services (DSHS) psychological evaluation he performed on November 17, 2008. Dkt. 12 at 2. In this evaluation, Dr. Parker diagnosed Ms. Marshall with "Bipolar Type II depressed w/psychotic features, PTSD, Cognitive disorder NOS; alcohol dependence in sustained remission." Tr. 341. He opined the severity of Ms. Marshall's depressed mood and global illness was severe, and that her expression of anger, social withdrawal, verbal expression of fear or anxiety, and thought disorder were marked. Id. He further opined Ms. Marshall had marked limitations in her ability to learn new tasks, perform routine tasks, interact appropriately in the public contacts, and to control her physical movements and maintain appropriate behavior. Tr. 342. He opined she had severe limitations in her ability to relate appropriately with co-workers and supervisors and to respond to and tolerate the normal pressures of a work setting. Id.
The ALJ rejected Dr. Parker's opinions on the grounds the doctor used a "check-box form," the "mental status report[ ] indicated that she was functional," and because in reports generated before Dr. Parker's evaluation, Ms. Marshall reported improved functioning and a sense of well being when she was clean and sober. Tr. 17. The ALJ noted while the reports generated before Dr. Parker's evaluation pertained to Ms. Marshall's condition before the alleged onset date and thus were not particularly relevant, they nonetheless showed "the claimant was able to function pretty well when she remained abstinent from substance abuse." Id.
These are not sufficient reasons to reject Dr. Parker's opinions. The use of a "check-box form," alone, is not grounds to reject the doctor's opinions. Medical opinions contained in check-box forms are a common feature of social security disability cases. Sometimes the Commissioner relies on opinions in "check-box forms" to reject a claimant's application, and sometimes not. As such, simply noting a doctor used a "check-box form" provides no measure of what weight the opinion contained therein should be given. Certainly, in some cases an ALJ may properly discount a doctor's opinion where the doctor's opinions are brief, conclusory, and inadequately supported by medical records. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). But as the ALJ neither discussed nor relied upon these reasons in rejecting Dr. Parker's opinions, neither can the Court. Bray v. Comm'r of Soc. Sec Admin., 554 F.3d 1219, 1225 (9th Cir. 1995).
The importance of focusing on the grounds relied upon by the ALJ in affirming or reversing the ALJ cannot be overemphasized. It is not for the Court to interpose reasons not mentioned or relied upon by the ALJ. For this reason, the Court cannot accept the Commissioner's argument the ALJ properly rejected Dr. Parker's opinions on the grounds they were contradicted by the opinions of Dr. Wayne Dees, Psy.D., who also examined Ms. Marshall. Dkt. 14 at 10. The ALJ made no mention that this was a ground upon which he was relying to reject Dr. Parker's opinions. The Commissioner's argument is thus an improper post-hoc rationalization the Court cannot rely on.
The ALJ also erred in rejecting Dr. Parker's opinions on the grounds the "mental status report[ ] indicated that she was functional." An ALJ may reject an uncontradicted examining doctor's opinion for "clear and convincing reasons" or "specific or legitimate reasons" where contradicted. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). An ALJ does this by setting out a detailed and thorough summary of the facts and conflicting evidence, stating her interpretation of the facts and evidence, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must do more than offer her conclusions; she must also explain why her interpretation, rather than the doctor's interpretation, is correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
Here, the ALJ gave no explanation as to what "functional" meant or how he arrived at that finding. This failure is problematic as Dr. Parker's mental status examination showed Ms. Marshall had functional limitations. In the mental status examination, Dr. Parker opined Ms. Marshall's mood was depressed, angry, and irritable; that her sleep was erratic; that she had decreased appetite, lethargic motor skills, episodic anger and irritability that was moderate in severity; that she had passing thoughts of suicide, auditory hallucinations, poor fund of knowledge, poor ability to perform 3-step commands, and poor delayed recall. The doctor further opined Ms. Marshall had logical, appropriate and responsive thoughts, could identify two objects, normal language, judgment, orientation, attention and immediate recall. Tr. 345. Dr. Parker also administered a "Trails A and B" test which the doctor indicated suggested cognitive impairment, and the need for IQ testing. Tr. 347. The doctor's mental status examination thus indicates Ms. Marshall functioning was not normal. Given these opinions and test results, and the ALJ's failure to explain why the examination showed Ms. Marshall was "functional," or what "functional" meant, the Court concludes the ALJ erred.
And finally, the ALJ erred in rejecting Dr. Parker's opinions on the grounds that "the claimant was able to function pretty well when she remained abstinent from substance abuse." Tr. 17. First, as the ALJ noted, the reports that indicated Ms. Marshall functioned pretty well when not using drugs are "not particularly relevant to the issues present in this case" as they pertain to Ms. Marshall's condition before the alleged onset date. Tr. 17. And second, the ALJ's rejection of Dr. Parker's opinions on the grounds that substance abuse was a major consideration required the ALJ to utilize the Commissioner's regulations and the two-step analysis as set forth by the law of this Circuit, something the ALJ failed to do here.
Under the law of this Circuit, an ALJ must apply a specific two-step inquiry in analyzing substance abuse in a disability determination. Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001). In Bustamante, the ALJ found Bustamante's limitations were a result of alcohol abuse, that alcohol abuse was his primary impairment, and that it did "not reach a disabling level of severity." Id. at 952. The Court of Appeals reversed, holding "[t]he ALJ should have proceeded with the five-step inquiry without attempting to determine the impact of Bustamante's alcoholism on his other mental impairments. If, and only if, the ALJ found Bustamante was disabled under the five-step inquiry, should the ALJ have evaluated whether Bustamante would still be disabled if he stopped using alcohol." Id. at 955. The Court of Appeals remanded, "with instructions that the ALJ proceed with step three (and four and five, if necessary) of the disability determination without attempting to separate out the impact of Bustamante's alcohol abuse." Id. at 956. The Court instructed the ALJ to consider whether "alcohol is a contributing factor material to" disability only if the ALJ found Bustamante disabled. Id.
The law of the Circuit tracks the Commissioner's own regulations. Under the Commissioner's regulations, the ALJ must follow a specific analysis that incorporates the five-step sequential evaluation. 20 C.F.R. §§ 404.1535(a), 416.935(a). The ALJ first must conduct the five-step inquiry without attempting to determine the impact of a substance abuse disorder. If the ALJ finds that the claimant is not disabled under the five-step inquiry, the claimant is not entitled to benefits, and there is no need to proceed with further analysis. Id. If the ALJ finds the claimant disabled, and there is evidence of substance abuse, the ALJ should proceed under the sequential evaluation and §§ 404.1535 or 416.935 to determine if the claimant would still be disabled absent the substance abuse. If found disabled with the effects of substance abuse, the claimant has the burden in steps one through four of the second sequential evaluation process to prove drug or alcohol abuse is not a contributing factor material to his disability. Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007).
In this case, rather than conducting the five-step inquiry
In sum, the Court concludes that as none of the reasons the ALJ gave to reject Dr. Parker's opinions are supported by substantial evidence, the ALJ erred. The Court further concludes this error was not harmless. The ALJ noted Dr. Parker's opinions were among the opinions which "suggested that the claimant was disabled." Tr. 17. Consequently, the Court cannot confidently conclude that no reasonable ALJ, when not making the same error as the ALJ, could have reached a different disability determination and the matter should thus be remanded for further proceedings. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006).
Ms. Marshall argues the ALJ erred in finding her not fully credible. Dkt. 12 at 16. The ALJ did not find that Ms. Marshall was malingering. Thus, the ALJ was required to provide clear and convincing reasons to reject her testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). An ALJ does this by making specific findings supported by substantial evidence. "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996).
In this case, the ALJ noted:
Tr. 18. While an ALJ may not penalize a claimant for attempting to live a normal life in the face of his limitations, the ALJ may rely on contradictions between a claimant's reported activities and her asserted limitations in assessing a claimant's credibility. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Here, the ALJ properly relied on the conflict between Ms. Marshall's testimony she was essentially bedridden, and other evidence that showed she was not, to discount her testimony.
The ALJ also found Ms. Marshall not fully credible on the grounds she "shoplifted from stores when money was tight" and that in order to obtain a bed at a shelter, she lied that her husband had drugs problems. Tr. 18. An ALJ may consider "ordinary techniques of credibility evaluation" including the claimant's reputation for truthfulness. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). The ALJ thus properly discounted Ms. Marshall's credibility based on her admission she lied to gain a shelter bed and that she stole from stores. Ms. Marshall argues that lying once to get shelter-bed is not probative of her reputation for truthfulness. However, coupled with her admission that she also shoplifted, the Court cannot say the ALJ's finding was unreasonable or unsupported. To be sure, the ALJ's finding is debatable but when the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Accordingly, as the ALJ's evaluation of Ms. Marshall's testimony is supported by substantial evidence, the Court will not disturb the ALJ's finding that Ms. Marshall's testimony is not fully credible.
Ms. Marshall contends "the ALJ purported to accept Mr. Marshall's testimony" but then erred by failing "to account for the limitations identified by Mr. Marshall in his residual functional capacity [RFC] finding." Dkt. 12 at 10. Lay testimony as to a claimant's symptoms is competent evidence that the ALJ must take into account, unless the ALJ expressly determines to disregard such testimony and gives specific reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d at 1053. Here, the ALJ found Mr. Marshall:
Tr. 18. The Commissioner contends that "the ALJ's interpretation of Mr. Marshall's testimony was rational" and is thus entitled to deference. The Court cannot accept this contention because it is unclear how the ALJ parsed Mr. Marshall's testimony, and thus not possible to conclude the ALJ's interpretation was rational. The ALJ found Mr. Marshall's testimony "fairly credible" but failed to detail whether all of the testimony was "fairly credible" or just partially "fairly credible." In discussing Mr. Marshall's testimony, the ALJ noted Ms. Marshall's inactivity "is not due to any physical or mental impairment supported by the record." This suggests the ALJ was rejecting Mr. Marshall's testimony about Ms. Marshall's "inactivity." However, as to other symptoms Mr. Marshall testified to such as Ms. Marshall's irritability, mood swings and threatening behavior, the ALJ did not discuss whether he was accepting or rejecting them.
Mr. Marshall's testimony regarding his wife's symptoms was competent evidence which the ALJ was required to take into account. If it was the ALJ's intent to accept Mr. Marshall's testimony about irritability, mood swings and threatening behavior, the ALJ erred because his decision did not take into account all of the symptoms. On the other hand, if it was the ALJ's intent to reject all of Mr. Marshall's testimony about his wife's symptoms, the ALJ erred by failing to give specific germane reasons for so doing. These errors were not harmless. Combined with Dr. Parker's opinions, the Court cannot confidently say no reasonable ALJ, when not making the same error as the ALJ, could have reached a different disability determination. On remand, the ALJ should reevaluate the testimony of Mr. Marshall.
The ALJ gave great weight to the opinions of examining doctor Wayne Dees, Psy.D., and several reviewing DDS doctors. Tr. 17-18. Ms. Marshall argues the ALJ erred by failing to obtain all of Ms. Marshall's DSHS records for these doctors to consider in rendering their opinions. Dkt. 12 at 13. The Commissioner does not dispute Ms. Marshall's contention that the DSHS records were not provided. The Commissioner, however, argues the ALJ had no duty to supplement the record because the reports of Dr. Dees and the reviewing doctors were not ambiguous, and Dr. Dees performed his own evaluation that was valid notwithstanding the fact he lacked all of Ms. Marshall's records. Dkt. 14 at 16-18. These arguments fail to address an ALJ's duty to supplement the record when a medical source's report "does not contain all the necessary information" as is obviously the case here.
Accordingly, the Court concludes the ALJ erred in failing to provide Dr. Dees and the examining doctors all of Ms. Marshall's medical records. On remand, if the ALJ seeks to rely on the opinions of an examining or reviewing doctor, the ALJ should ensure that those opinions are based on all the necessary information, including all relevant medical records.
As discussed above, the ALJ's errors noted above require the matter be remanded for further proceedings. Accordingly, on remand, after properly evaluating the medical evidence, the ALJ should also reevaluate Ms. Marshall's RFC, and as appropriate incorporate all functional limitations in any hypothetical question posed to a vocational expert.
For the foregoing reasons, the Court recommends the Commissioner's decision be
Objections, if any to this Report and Recommendation must be filed and served no later than
