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noting that, as a matter of commonsense, a rule out diagnosis “simply means that a particular diagnosis is neither ruled in nor ruled out by the examining physician”
Summary of this case from Nathaniel M. v. KijakaziOpinion
Civil No. 99-1816-JO
February 8, 2001
Karen G. Stolzberg Merrill Schneider SCHNEIDER LAW OFFICES Portland, OR Attorneys for Plaintiff.
Lucille G. Meis Victoria L. Blais SOCIAL SECURITY ADMINISTRATION Seattle, WA William W. Youngman. UNITED STATES ATTORNEY'S OFFICE Portland, OR Attorneys for Defendant.
OPINION AND ORDER
Claimant Christina L. Simpson ("claimant") seeks judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). After a careful review of the record, I conclude that the Commissioner's decision that claimant is not disabled is not supported by substantial evidence, contains errors of law, and must be reversed and remanded for further proceedings consistent with this opinion.
ADMINISTRATIVE HISTORY
On April 11, 1995, claimant filed an application for SSI and DIB, alleging an inability to work since July 15, 1987. The application was denied initially and on reconsideration. On February 2, 1996, claimant requested a hearing. A hearing was held before an Administrative Law Judge ("ALJ") on June 6, 1997. At the hearing, the following parties testified: claimant, represented by counsel; Dr. Larry Hart, a medical expert; and Patricia Ayerza, a vocational expert. On October 24, 1997, the ALJ issued a decision denying claimant's application. The ALJ's decision became the final decision of the Commissioner on October 26, 1999, when the Appeals Council denied review.
STANDARD OF REVIEW
This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld if it is a rational interpretation of the evidence, even if there are other possible rational explanations. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
SUMMARY OF ALJ'S FINDINGS
The ALJ employed a five-step "sequential evaluation" process in evaluating claimant's disability, as required. See C.F.R. § 404.1520. The ALJ first determined that claimant met the disability insured status requirements on July 30, 1988 and has not engaged in substantial gainful activity since July 15, 1987, thereby satisfying step one.
Second, the ALJ found that claimant suffers from severe impairments, including pelvic inflammatory disease and fibrositis impairments, but that these impairments, alone or in combination, did not meet or equal the criteria for any of the listed impairments described in the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1, during the relevant time frame. The ALJ also thoroughly reviewed evidence regarding claimant's mental capacity, but apparently found that there was not sufficient evidence of a severe psychological impairment.
In the next step of the evaluation, the ALJ determined that claimant retains the residual functional capacity to perform work-related activities, and that she suffers from no significant non-exertional limitations that narrow the range of work she can perform. Accordingly, the ALJ found that claimant was not disabled as defined by the Social Security Act, and denied her application for benefits.
STATEMENT OF FACTS
Claimant was 32 years old on the date of the hearing. She had the equivalent of 12 years of education, having obtained a General Education Degree (GED). While she has worked as a psychiatric nurse's assistant, her past relevant work experience is limited to experience as a food preparer, bartender and assembly worker. Claimant had sufficient insurance coverage to be entitled to disability insurance benefits through June 30, 1988.
Medical Evidence
The record reflects that claimant has suffered from both physical and psychological problems for a number of years, and that her psychological condition has, to some degree, influenced her perception of her physical ailments. Between 1995 and 1998, several psychiatrists, psychologists and medical doctors examined claimant for these purported conditions. Much of this medical evidence was presented to the ALJ at the hearing, but some of it post-dated the ALJ's decision, and he therefore could not consider it. In general, claimant's examining doctors appear to agree that claimant suffers from no objectively verifiable physical impairment. Most of her examining doctors do agree, however, that claimant suffers from some form of a psychological impairment, they simply differ on the nature and severity of her psychological condition. The key medical evidence that forms the basis of the ALJ's opinion and the parties' arguments is reviewed here.
There are several additional doctors who examined claimant during the period in question whose findings are included in the record. However, because their findings were either not addressed by the ALJ or not discussed by the parties, I do not include them here.
On March 2, 1995, claimant was seen by Edmund Myers, a psychiatrist at Delaunay Family of Services. According to Dr. Myers' notes, claimant stated that she was "psychic" and that she could predict the future. As an example, claimant told Dr. Myers that just prior to her mother's death, she had a dream that her mother shot herself. In reality, her mother died in a hiking accident. Claimant also stated that she was able to travel on an "astral plane," and hear with her skin "like it's electric." She reported that she attempted suicide at age 22.
In her interview with Dr. Myers, claimant went into considerable detail about an event that she claims took place when she was 11 years old. At that time, she states that she witnessed a collision between a glider and a launch plane, each piloted by a fifteen-year old girl. According to her story, the crash killed both girls, and other children who witnessed the incident began yelling "jelly, jelly," and "squashing" body parts with their bikes.
Claimant also informed Dr. Myers that she is currently on probation for assault. In her interview with Dr. Myers, she describes the event that led to that conviction. She was apparently arguing with her ex-fiance, over how to bathe claimant's youngest daughter. She claims that he slammed her against the wall, and that she defended herself by throwing hydrogen peroxide in his face.
Dr. Myers' diagnosis and assessment of claimant's psychological health was characterized by uncertainty and speculation. Dr. Myers reported that claimant was "difficult to interview," and that her responses were "often inconsistent." (Tr. 257.) He explained that while there was evidence of "some sort of psychotic process of long duration," claimant was "somewhat of a diagnostic dilemma," and he would therefore "refrain from making a diagnosis at this time." He suggested that claimant would benefit from a trial with antipsychotic medication, but that more information should be gathered before such medication was prescribed.
Dr. Myers also concluded that claimant suffered from some physical ailments, including scoliosis, temporomandibular joint syndrome, arthritis, cystic ovaries and retinitis pigmentosa. However, because the ALJ concluded that claimant's physical ailments are not "severe" within the meaning of the regulations, and because claimant does not challenge this finding, her physical ailments are not discussed in detail here.
While Dr. Myers does list several psychological disorders in his DSM IV Diagnosis, most of these are listed as "Rule Out" diagnoses. Under Axis I, Dr. Myers diagnosed: Rule Out Psychotic Disorder, Not Otherwise Specified ("NOS"); Rule Out Post-Traumatic Stress Disorder; Rule Out Dissociative Disorder NOS; and Rule out Undifferentiated Somatoform Disorder. Under Axis II, he diagnosed Rule Out Personality Disorder NOS. Dr. Myers ultimately gave her a Global Assessment of Functioning (GAF) of 50. (Tr. 260.)
In increments of 1 to 100, GAF scores range from a high of 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, or persistent inability to maintain hygiene, or serious suicidal act with clear expectation of death). See Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") at 32 (code 11-20). A GAF score of 50 indicates "[s]erious symptoms . . . OR any serious impairment in social occupational or school functioning." Id.
Dr. Myers met with claimant two subsequent times in 1995, and in both cases, he modified his original diagnosis. On May 19, 1995, Myers stated that claimant "continues to represent a diagnostic dilemma," but noted a "significant anxiety component which is consistent with her nighttime ruminations." (Tr. 319.) He therefore added Anxiety Disorder, NOS to his original diagnosis of March 2, 1995, and prescribed BUSPAR.
Dr. Myers again observed claimant on June 15, 1995, and reported that she was "focused," "alert and oriented," and had responded well to the BUSPAR he had prescribed on May 19, 1995. (Tr. 321.) He stated that a "[d]efinitive diagnosis still remains somewhat illusive," but concluded that "the diagnosis of Anxiety Disorder NOS should be the primary diagnosis on Axis I," and also reiterated a diagnosis of Rule Out Post Traumatic Stress Disorder. At the same time, he eliminated Psychotic Disorder NOS and Dissociative Disorder from his diagnosis of March 2, 1995.
Meanwhile, on March 6, 1995, claimant was examined by Dr. Lisa Gabardi, Ph.D., and Peg Warren, M.S., a psychological intern. Once again, claimant stated that she was psychic, and claimed that she frequently predicted future events, including her mother's death, her grandmother's death, an accident her brother was involved in, and a fire in her building. (Tr. 262.) She claimed that her psychic energy could power electrical instruments and make objects fly around the room. Claimant also insisted that she had seen ghosts on several occasions, and in one instance, she had seen blood coming up from the floor.
Dr. Gabardi and Dr. Warren were also from Delauney Family of Services.
During the March 6, 1995 interview, Dr. Gabardi administered several tests, including an Intelligence Quotient ("IQ") test, a Visual-Motor and Neuropsychological Screening ("VMNS"), and a Personality Assessment. (Tr. 265-266.) Claimant received an overall IQ score of 93, which is in the Average range. On her VMNS, claimant was found to have no evidence of organic impairment. The personality assessment reported that she is "preoccupied with bizarre somatic complaints that may be delusional in nature," and concluded that she suffered from manic symptoms and a possible thought disorder. (Tr. 266.)
Dr. Gabardi developed the following "diagnostic impression": On Axis I, Rule Out Psychotic Disorder NOS, Rule Out Schizoaffective Disorder, and Rule Out Somatization Disorder; on Axis II, Rule Out Personality Disorder, NOS; and on Axis III, no clear medical evidence of a medical condition. She gave claimant a GAF of 35. (Tr. 268.) Despite these diagnoses, however, Dr. Gabardi observed that claimant did not "present interpersonally as an individual who is severely impaired." She recommended that claimant consider individual therapy, antipsychotic medication and a psychiatric evaluation.
A GAF score of 35 indicates "[s]ome impairment in reality testing or communication . . . OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood." DSM-IV at 32.
Dr. Gabardi examined claimant again on April 26, 1995, and her observations and diagnoses were essentially unchanged from those of March 2, 1995.
Claimant was also examined by Arthur Gaskell, a family physician, no fewer than six times between 1995 and 1997. Dr. Gaskell's examinations focused primarily on claimant's physical ailments, and his general conclusion was that claimant did not suffer from a severe physical impairment that would limit her ability to work. First, on May 9, 1995, Dr. Gaskell conducted an examination of many of claimant's concerns, and found that claimant suffered from herpes simplex conjunctivitis with associated headaches and musculoskeletal-type pain of a non-arthritic nature. However, he concluded that despite these concerns, she "ha[d] no functional limitations imposed by her impairments to do work-related physical activities." (Tr. 276.)
Dr. Gaskell admits that he did not address claimant's concerns over ovarian cysts and emotional instability.
Dr. Gaskell again examined claimant on April 2, 1996. At that time, she complained of neck pain, back pain and sensory loss in her thighs and buttocks, and Dr. Gaskell informed claimant that she "is quite adamant about the fact that since she is having so much pain she can't be involved in a work program and therefore may lose money." (Tr. 354.) Dr. Gaskell informed claimant that his conclusions would be based on objective findings, but that he would conduct a thorough examination to determine whether her subjective complaints had an objective basis. In his conclusion, Dr. Gaskell found: 1) Multiple and chronic pain without objective evidence by exam or testing; and 2) a possibility of fibromyalgia. (Tr. 355.)
Dr. Gaskell referred claimant to two other doctors following his April 2, 1996 exam: Dr. Robert Crumpacker and Dr. John Griffin. Dr. Crumpacker's April 9, 1996 examination revealed no objective abnormalities, but he did conclude that claimant likely suffered from fibromyalgia. Dr. Griffin examined claimant on June 6, 1996, and recorded claimant's numerous complaints of physical afflictions, including pain in her fingers, wrists, elbows, shoulders, hips, knees and feet. She also complained of stiffness, sleeplessness and frequent inability to dress or bathe herself. Dr. Griffin's diagnostic impression was fibrositis. (Tr. 331.)
Claimant was seen by Dr. Gaskell two subsequent times in late 1996. On November 5, 1996, he reported that claimant suffered from alcohol gastritis, withdrawal anxiety and mild dehydration. (Tr. 358.) At that time, he ordered her hospitalized overnight to hydrate her and reinitiate her anxiety medications. On December 10, 1996, Dr. Gaskell again examined claimant for several additional ailments, including defecation problems, headaches, anxiety and a possible prolapsed uterus or vagina. He diagnosed her with a mild prolapsed uterus, worsening anxiety and pain in the right chest wall. (Tr. 360.)
On May 16, 1997, Dr. Gaskell responded to a request for medical evidence from the Vocational Rehabilitation Division of Adventist Health Medical Clinic. He reiterated that there were no objective findings to evidence any physical disorder, but concurred with Dr. Crumpacker's diagnosis that claimant may have fibromyalgia. Dr. Gaskell stated that her physical movement seemed unhindered and unimpaired and her mental activities appeared normal. He stated that even if she does have fibromyalgia, she should be able to perform light work with only slight to moderate limitation of her functional capability. There is no evidence on the record that Dr. Gaskell ever thoroughly examined claimant for her numerous alleged psychological ailments.
In addition to the medical evidence reviewed above that was gathered before the administrative hearing, there is also substantial and compelling evidence on the record that was gathered after he issued his opinion. In 1998, claimant was evaluated by Dr. James B. Powell, a psychologist, Dr. Harlan Bridenbaugh, M.D., Dr. Glenn E. Ruminson, M.D., and Dr. Richard Toy, M.D., at Oregon Health Sciences University.
Because this medical evidence is central to my decision to remand, it is detailed more thoroughly in the discussion that follows, and reviewed only briefly here.
In May of 1998, Dr. Powell performed an IQ test, a personality assessment and a psychological evaluation over the course of three examinations. (Tr. 457-468.) Dr. Powell's diagnostic impressions were: Psychotic Disorder, NOS, Post-Traumatic Stress Disorder, chronic, and Undifferentiated Somatoform Disorder on Axis I; apparent history of both dependent and schizoid features on Axis II. He gave her a GAF score of 42.
A GAF score of 42 indicates "[s]erious symptoms . . . OR any serious impairment in social, occupational, or school functioning." DSM-IV at 32.
On September 5, 1998, claimant was admitted to Providence Crisis Triage Center, after being picked up by the police "in a state of agitation and anxiety." (Tr. 480.) She was examined by Dr. Glenn E. Ruminson, who described her as "delusional" and gave the following diagnostic impression: Delusional Disorder, Rule Out Organic Affective Disorder, Rule Out Bipolar Affective Disorder on Axis I. He gave her a GAF score of 20.
A GAF score of 20 indicates "[s]ome danger of hurting oneself or others . . . OR occasionally fails to maintain minimal personal hygiene . . . OR gross impairment in communication." DSM-IV at 32.
Finally, on September 13, 1998 and September 21, 1998, claimant was seen at Oregon Health Sciences University ("OHSU") for a urinary tract infection. On both visits, the treating doctors wrote that claimant displayed disorganized thought, paranoia regarding her primary care provider and extreme emotion. (Tr. 486, 492-493.)
Medical Consultant Testimony
The ALJ also requested that Dr. Larry Hart, a clinical psychologist, appear at the administrative hearing as a medical expert to give his professional opinion of claimant's mental health. Dr. Hart was selected by the ALJ and approved by both parties. Dr. Hart observed claimant and reviewed the medical evidence on the record, and testified that claimant did appear to have psychological problems, but that they could be malingering or fictitious. (Tr. 109.) He observed that many of the diagnoses on the record were either speculative or inconclusive, and stated that there was insufficient evidence on the record to conclude that she suffered from an identifiable severe impairment that would limit her ability to function or work. He stated in his conclusion that he could not give "a valid judgment nor reliable statement that she's functionally impaired." (Tr. 109.)
DISCUSSION
A. Consideration of New Evidence
Claimant challenges the ALJ's decision, alleging five errors. Before I reach claimant's arguments, however, there is an issue that was not directly raised by the parties that must be addressed here. In claimant's submissions to me, she heavily relies on evidence of her mental health that was gathered after October 24, 1997, the date of the ALJ's decision. While the ALJ obviously could not evaluate the evidence gathered after the ALJ's decision was issued, the Appeals Council did examine this additional evidence. The Council thoroughly detailed the content of that evidence, and concluded that because claimant's afflictions appeared to be "episodic" in nature, "the new evidence submitted with [her] request for review [was] not material to the issue of whether [she was] disabled beginning on or before October 24, 1997." (Tr. 8.) I must determine whether I may consider this additional evidence in reaching my decision.
In Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993), the Ninth Circuit concluded that new evidence that was not before the ALJ, but was submitted to the Appeals Council, becomes a part of the record as a whole. The court explained: "[A]lthough the Appeals Council `declined to review' the decision of the ALJ, it reached this ruling after considering the case on the merits; examining the entire record, including the additional material; and concluding that the ALJ's decision was proper and that the additional material failed to `provide a basis for changing the hearing decision.'" Ramirez, 8 F.3d at 1452. For these reasons, the court concluded that it must consider both the decision of the ALJ "and the additional material submitted to the Appeals Council." Id. Accordingly, in reviewing the ALJ `s decision, I, too, must consider the record as a whole, including new evidence addressed by the Appeals Council in its decision to decline review.
Since the ALJ issued his opinion, claimant has been thoroughly examined on several separate occasions, resulting in additional diagnoses of mental impairments, and GAF scores of 42 and 25. First, in May of 1998, Dr. James B. Powell did a psychological evaluation of claimant, performing both an intellectual assessment and a personality assessment and providing diagnostic impressions. According to Dr. Powell, claimant exhibited "a variety of symptoms that include[d] psychotic and delusional features, [and] an excessive amount of psychosomatic features," frequent flashbacks, and symptoms consistent with Post Traumatic Stress Disorder. (Tr. 461.) His diagnostic impressions were: Psychotic Disorder, NOS, Post Traumatic Stress Disorder, Chronic and Undifferentiated Somatoform Disorder on Axis I, Apparent History of both Dependent and Schizoid Features on Axis II, Potential Fibromyalgia on Axis III, and Psychosocial Stressors on Axis IV. He gave her a GAF score of 42.
While Dr. Powell does diagnose claimant with Post Traumatic Stress Disorder, he cites only "physical abuse" as the basis for his diagnosis and does not appear to follow the diagnostic criteria for diagnosing Post Traumatic Stress Disorder. See DSM-IV at 427-28.
In his conclusion, Dr. Powell expressed doubt that claimant could adequately adjust to a working situation without substantial improvement in her physical and psychological health. He reflected: "In looking at the combination of reported physical symptoms and psychological symptoms, it seems that it would be difficult for her to properly adjust to a regular work situation without making further gains in the area of both physical and psychological intervention." (Tr. 466.) Dr. Powell recommended treatment that included a psychological consultation to regulate medication and ongoing mental health therapy. (Tr. 467-468.)
Claimant was also examined a second time in 1998 for an arguably related, but more severe, incident. In September of that year, she was admitted to the Crisis Triage Center after being apprehended by police while she aimlessly walked through the streets. In the initial psychiatric evaluation, the Center reported:
At approximately 1300 hours, officers apprehended the patient, apparently in her neighborhood. She had been observed walking in the streets while delusional. She believes there is a large truck driving through the neighborhood each morning that is spreading flesh-eating bacteria. The purpose is apparently to cause panic so the city can be taken over. She told the officers she believes that she and her daughter are infected with this bacteria. (Tr. 470.)
Over the course of approximately the next two weeks, claimant was evaluated on at least four separate occasions. On September 5, 1998, Dr. Harlan Bridenbaugh reported that she was "unkempt" and "agitated," and stated that when he returned to the room after leaving for a moment, she was singing aloud. In her interview with Dr. Bridenbaugh, claimant repeated her claims that she could move things with her mind, and complained of a brain infection and impending blindness.
Dr. Bridenbagh described claimant as "floridly psychotic," manifesting "paranoid and grandiose delusions." (Tr. 471.) He diagnosed her with Bipolar disorder on Axis I and gave her a GAF score of 25. He deferred additional diagnoses on Axis II, III and IV. After completing his diagnosis, Dr. Bridenbaugh ordered claimant hospitalized "on a notice of mental illness." (Tr. 471.)
A GAF score of 25 indicates behavior that is "considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment . . . OR inability to function in almost all areas." DSM-IV at 32.
On the same day, claimant was examined by Dr. Glenn E. Ruminson. He diagnosed claimant with Delusional Disorder, Rule Out Organic Affective Disorder, and Rule Out Bipolar Affective Disorder on Axis I. (Tr. 482.) He gave her a GAF of 20. On September 9, 1998, Dr. Ruminson finalized a diagnosis of Delusional disorder on Axis I. (Tr. 478.)
After a careful review of the new evidence before me, I find that it is sufficiently compelling evidence of a severe psychological impairment to necessitate additional review at the administrative level. Prior to the ALJ issuing his opinion, many of the conclusions of the examining doctors were inconsistent and inconclusive. It appears that it was this lack of clarity, at least in part, that led the ALJ to his conclusion that claimant lacked a severe psychological impairment.
It also appears that the ALJ focused his analysis on claimant's alleged physical impairments. As I discuss in more detail here, on remand, the ALJ should direct his attention to the evidence of claimant's psychological impairments.
Since that time, new and significant evidence has been gathered regarding claimant's mental health. She has been diagnosed with delusional disorder, she has received GAF scores of 42, 20 and 25, and she was been apprehended by police after wandering the streets ranting about infectious insects. At least one doctor has concluded that she will have to make substantial improvements in her physical and/or psychological health in order to function in a work situation. This additional evidence is sufficiently related to her claims of psychological impairments prior to the administrative hearing, that it clearly bears on whether she suffered from a severe psychological impairment during the relevant period. Accordingly, this additional evidence must be submitted to the ALJ in combination with the pre-existing record for a determination of whether claimant suffers from a severe psychological impairment.
B. Claimant's Arguments
With respect to the argument's raised by Claimant, I make the following observations:
1. "Rule-Out" Diagnoses
In the ALJ's decision, he considered and discounted several diagnoses of psychiatric conditions, because they were characterized as "Rule-Out" diagnoses. For example, when addressing the diagnosis of personality disorder provided by Disability Determination Services ("DDS"), the ALJ explained that the record "contains primarily `rule-out' diagnoses on Axis I and no diagnosis of a personality disorder on Axis II by any examining source." (Tr. 24.) Claimant submits that the ALJ erred by discounting these "rule-out" diagnoses.
Claimant asserts, without support, that a "Rule-Out" diagnosis is equivalent to a "Provisional" diagnosis, as that term is defined in the Diagnostic and Statistical Manual of Mental Disorders — Fourth Edition (DSM-IV). As such, she asserts that use of the term "Rule-Out" creates a "strong presumption that the full criteria for a particular diagnosis will ultimately be met, but not enough information is available to make a firm diagnosis." Plaintiff's Opening Memo. at 8.
This assertion is not supported in any way by claimant. Nowhere in claimant's argument does she support either her assertion that a "Rule-Out" diagnosis is equivalent to a provisional diagnosis, or that a provisional diagnosis creates a "strong presumption" that the disorder is present. Claimant offers no reason to reject the common sense assumption that "Rule-Out" simply means that a particular diagnosis is neither ruled in nor ruled out by the examining physician. Additionally, there is no argument to support claimant's assertion that a "provisional" diagnosis creates a "strong presumption" that the disorder exists.
Even if claimant's assertions are correct, there is no error in failing to find a severe impairment on the basis of such diagnoses. The claimant bears the burden of proving that he or she is disabled. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). She cannot meet this burden on the basis of diagnoses that merely fail to rule out potential disorders. It is the role of the ALJ to weigh all the evidence on the record, which necessarily requires him to evaluate each piece of evidence for its reliability. He is certainly permitted to consider the "rule-out" status of a diagnosis in determining its relevance to the ultimate question of disability. Thus, I find no error in his consideration of the "Rule-Out" status of diagnoses in evaluating the evidence on the record in this case.
2. The ALJ's Rejection of the Testimony of Treating or Examining Physicians.
In the ALJ's opinion, he effectively rejected the opinion provided by Dr. Lisa Gabardi, Ph.D., and Peg Warren, M.S., a psychology intern, explaining simply: "The evaluator is a psychology intern and [the GAF score she provides] is apparently largely based on speculation as well as the claimant's unstable living situation and financial difficulties rather than her mental health condition." (Tr. 25.)
In the Ninth Circuit, an ALJ can reject the opinion of a treating or examining physician only by setting forth specific, legitimate reasons for doing so, and this rejection must be based on substantial evidence. Rodriguez v. Bowen, 876 F.2d 759 (9th Cir. 1989). Here, the ALJ rejected several psychological diagnoses, including Rule Out Psychotic Disorder NOS, Rule Out Schizoaffective Disorder, Rule Out Somatization Disorder, Rule Out Personality Disorder, and a GAF score of 35, without providing the requisite reasoning.
First, it is not legitimate to reject the opinions of Ms. Warren and Dr. Gabardi on the basis that the evaluation was performed solely by Ms. Warren, who was an intern. It is undisputed that Dr. Gabardi signed the evaluation, indicating that she concurred with its conclusions. Furthermore, even had her signature not been included, Ms. Warren is trained in psychology and her opinions, which are based on her own observations, are relevant to the ultimate determination of whether claimant is disabled.
Second, the ALJ's mere statement that these conclusions were "apparently largely based on speculation" is not a sufficiently "specific" reason to satisfy the demands of Rodriguez. The ALJ cites nothing in the record that would support this conclusion, and in fact a thorough review of the opinion provided by Dr. Gabardi and Ms. Warren demonstrates that their conclusions are carefully reasoned and based on thorough examinations. Therefore, while it may be legitimate to reject the conclusions Dr. Gabardi and Ms. Warren provide, on remand, the ALJ may not do so without providing specific, legitimate reasons for doing so.
3. Dr. Hart's Testimony.
Claimant next contends that the ALJ erred in relying on the testimony of Dr. Larry Hart, a non-examining medical advisor, "in place of" other treating and evaluating sources. Claimant cites Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984), for the proposition that a medical advisor's opinion cannot, without more, constitute substantial evidence. However, "opinions of a non-examining, testifying medical advisor may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). Thus, to the extent that Dr. Hart's testimony is supported by substantial evidence, it may, in part, form the basis of the ALJ's opinion. On remand, the ALJ must carefully review the record to ensure that the testimony of any testifying medical expert is so supported.
In fact, it appears that some of Dr. Hart's conclusions did not find such support in the record. For example, he states that a malingering disorder was suggested by an examining doctor, when in fact it was not. To the extent that the medical expert's testimony is made up of such misstatements or mischaracterizations of the record, they are not supported by substantial evidence and may not be relied upon by the ALJ.
4. The ALJ's Reliance on the Medical Opinion of Dr. Gaskell.
In concluding that claimant suffered no severe impairment, the ALJ relied in part on the findings of Dr. Arthur Gaskell, a medical doctor who treated claimant several times over the course of two years. Claimant insists that this reliance constituted error because Dr. Gaskell is not a psychiatric specialist and did not evaluate her psychological condition.
Claimant also asserts that she was uncomfortable with Dr. Gaskell, and that this renders his conclusions unreliable. This is neither borne out by the record nor relevant to the reliability of Dr. Gaskell's medical conclusions. As I have discussed, claimant saw Dr. Gaskell at least six times over the course of two years, never expressing any discomfort. Had she felt as uncomfortable as she claims, she could have gone to another treating physician. Furthermore, there is no indication that her alleged discomfort rendered Dr. Gaskell's conclusions unreliable. As he indicated in his examinations, his conclusions related primarily to her physical health and were based on objective findings.
First, while Dr. Gaskell is admittedly not a psychiatric specialist, he has extensive experience examining claimant, and he did evaluate claimant's psychological condition to a limited degree. In November of 1996, Dr. Gaskell observed that claimant appeared to suffer from withdrawal anxiety. He recommended at that time that she be hospitalized and given anxiety medication. On May 16, 1997, Dr. Gaskell conducted a thorough exam, and observed: "Mental activities of understanding and memory, sustained concentration and persistence, social interaction and adaptability appear to be normal. She does have anxious depression, for which she is taking medication, and seems to be doing well." (Tr. 369.) Dr. Gaskell made these observations after examining claimant no less than six times over the course of two years.
This case is thus unlike Montijo v. Sec'y of Health Human Serv., 729 F.2d 599 (9th Cir. 1984), on which claimant relies. In Montijo, the claimant sought benefits, in part, on the basis of an alleged psychological impairment. The ALJ found that the claimant did not have a severe psychological impairment, apparently ignoring the uncontroverted evidence of psychological impairment on the record. Instead, he relied on evidence relevant to claimant's physical impairments. The court noted: "Evidence from physicians ruling out possible neck and back injuries does not contradict evidence from psychiatrists that claimant suffered from a disabling neurotic disorder." Montijo, 729 F.2d at 602.
Here, Dr. Gaskell did not limit his evaluation to physical observations, but instead, as I have reviewed above, he discussed in some detail claimant's anxiety, depression and general mental health. Second, the evidence of psychological impairment is not uncontroverted; it is inconclusive and disputed. Several doctors have provided "rule-out" diagnoses; others have expressed doubt as to the severity of any alleged impairment. The ALJ in this case relied on Dr. Gaskell in combination with the other evidence on the record, and there is no indication that the ALJ relied on his conclusions regarding claimant' s physical impairments to conclude that no psychological impairment existed. Again, the ALJ is required to review the evidence on the record as a whole. His reliance on Dr. Gaskell's conclusions, to the extent they are relevant to claimant's alleged psychological impairments, is not error. However, on remand, the ALJ should consider the fact that Dr. Gaskell's conclusions regarding claimant's psychological impairments are limited and narrow, and evaluate their weight and reliability accordingly.
5. The ALJ's Rejection of Claimant's Testimony
In his opinion, the ALJ thoroughly reviewed claimant's testimony, and concluded that it was not credible. As support, he cited numerous inconsistencies in her testimony, relating to her purported physical symptoms, her intellectual capacity and alleged substance abuse. While it is legitimate for the ALJ to reject claimant's testimony as not credible, such a conclusion must be based on a thorough review of the record and must be carefully reasoned.
After reviewing the ALJ's opinion, it appears that he did not carefully consider claimant's inconsistent statements and physical complaints as evidence of a psychological disorder. "The adjudicator must develop evidence regarding the possibility of a medically determinable mental impairment when the record contains information to suggest that such an impairment exists, and the individual alleges pain or other symptoms, but the medical signs and laboratory findings do not substantiate any physical impairment(s) capable of producing the pain or other symptoms." Social Security Ruling 96-7p, n. 3. Following this mandate, the ALJ must, on remand, carefully review claimant's physical complaints in the context of the record as a whole, and fully develop evidence of a possible psychological disorder.
CONCLUSION
This case is REMANDED to the Commissioner for further proceedings consistent with this opinion.