Opinion
CV 00-6204-KI
May 17, 2001
RALPH WILBORN, Tucson, AR., Attorney for Plaintiff.
TIM WILBORN, Portland, OR., Attorney for Plaintiff.
MICHAEL W. MOSMAN, United States Attorney, WILLIAM W. YOUNGMAN, Assistant United States Attorney. Portland, OR., Attorney for Defendant.
RICHARD E. BUCKLEY, Special Assistant United States Attorney, Seattle, WA., Attorney for Defendant.
OPINION
Plaintiff Fredrick A. Clemens brings this action for judicial review of a final decision of defendant Commissioner denying his application for supplemental security income benefits ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1382 et seq. (the Act). This court has jurisdiction pursuant to 42 U.S.C. § 1383(c)(3) which incorporates 42 U.S.C. § 405(g). I remand the ALJ's decision to the Commissioner for further administrative proceedings in accordance with this opinion.
BACKGROUND
Clemens filed an application for SSI payments on March 27, 1997 (protective filing date). The application was denied initially and upon reconsideration. After a timely request, Clemens received a hearing before an Administrative Law Judge ("ALJ") on March 10, 1999.
On April 30, 1999, the ALJ issued a decision finding Clemens was not disabled within the meaning of the Act and denying his application for SSI payments. This decision became the final decision of the Commissioner when the Appeals Council declined to review it. 20 C.F.R. § 416.1481; Russell v. Bowen, 856 F.2d 81, 83-84 (9th Cir. 1988).
LEGAL STANDARDS
SSI payments may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a). When a claimant seeks SSI payments based on disability, he or she has the burden of proof to establish a disability. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). To meet this burden, the claimant must demonstrate an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 1382c (a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 1382c (a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for SSI due to disability. 20 C.F.R. § 416.920; Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the Commissioner proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied. If the impairment is severe, the Commissioner proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that are so severe the Commissioner presumes they preclude substantial gainful activity. 20 C.F.R. § 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the Commissioner proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work which he or she performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. § 416.920(e).
If the claimant is unable to perform work he or she has done in the past, the Commissioner proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his or her age, education, and work experience. The burden shifts to the Commissioner to show that gainful work activities are within the claimant's capabilities. Drouin, 966 F.2d at 1257. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. § 416.920(f).
Judicial review of the Commissioner's decision is guided by the same standards. 42 U.S.C. § 1383(c)(3). This court must review the case to see if the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Drouin, 966 F.2d at 1257. It is more than a scintilla, but less than a preponderance, of the evidence. Id.
Even if the Commissioner's decision is supported by substantial evidence, it must be set aside if the proper legal standards were not applied in weighing the evidence and in making the decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Id. The trier of fact, and not the reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the Commissioner. Id. at 720-21.
FACTS
I. Clemens' History
In his application, Clemens alleged that he became disabled beginning March 1, 1997 due to the combined effect of several mental impairments, including post traumatic stress disorder (PTSD), depression, anxiety and panic attacks. At the time of the hearing, he was 28 years old and had left school after completing the ninth grade. He had worked sporadically as a landscape laborer, a nursery helper, a chicken hanger and a green chain puller. The ALJ found none of these jobs amounted to substantial gainful activity or relevant work history within the meaning of 20 C.F.R. § 416.965. When he filed his application, Clemens lived with his wife and his stepmother. Clemens' wife was self employed and received child support payments. His stepmother had a job and contributed to the household income. Clemens had no regular income of his own but received food stamps. Clemens and his wife later moved to a farm where they lived with relatives.
II Medical Records
The record shows that Clemens' primary care provider has been Kimberly Cronin, M.D., of the Cottage Grove Medical Clinic. The first medical record of his present impairment is found in Dr. Cronin's treatment notes from February 5, 1997. Clemens complained of excessive sweating in his hands and armpits. According to Clemens, the sweating problem had begun two years earlier when he stopped taking Xanax for anxiety with panic disorder. Clemens told Dr. Cronin that he had not had any panic attacks during the time he took Xanax. Dr. Cronin diagnosed probable anxiety disorder and prescribed Buspar, an anxiety medication. She wrote that she intended to refer Clemens for counseling. Tr.208-18. On March 3, 1997, Clemens reported that his anxiety and sweating had improved while taking Buspar. He said he was ready to try counseling. Dr. Cronin referred Clemens to Olivia West, L.C.S.W. on March 12, 1997. Id.
"Tr." refers to the certified copy of the administrative transcript submitted by defendant pursuant to 42 U.S.C. § 405(g).
West made her initial assessment of Clemens on March 17, 1997. She wrote that Dr. Cronin had referred Clemens for "night sweats and anxiety". Tr. 190. Clemens told West he had received serious injuries to his legs and feet in November 1995 when he was beaten with a baseball bat. He said his sister's boyfriend had repeatedly struck him while threatening to kill him. He reported nightmares, flashbacks, hypervigilance, panic attacks and night sweats. West diagnosed PTSD and major depression. Tr. 183-90.
Symptoms of PTSD include (1) persistent reexperience of the traumatic event through dreams, recollections, flashbacks or hallucinations, (2) persistent avoidance of stimuli associated with the traumatic event including numbing of social and emotional responsiveness, and (3) persistent symptoms of increased arousal such as hypervigilance, irritability or disturbed sleep. Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) 428-29.
At counseling sessions on March 31 and April 7, Clemens was irritable and angry in presentation and reported he had been depressed for about a week. Clemens reported that he continued to feel unsafe and fearful that he would be attacked again. He said the frequency of panic attacks had increased. West wrote to Dr. Cronin that Clemens was exhibiting the symptoms of a single episode, major depression. Tr. 248. Clemens told West that his primary employment problem was his inability to work with others. He told West that he could not maintain a job because when he had to work with others he became agitated and fearful and had to quit. He said "I just can't be around people anymore" and said this problem began after the assault. Tr. 185.
Sometime before May 19, 1997, Clemens declined to continue counseling with West. West gave him referrals to three other mental health providers. In her termination summary, West wrote that Clemens had shown improvement initially, but during the course of treatment, reported two "severe" panic attacks. Tr. 183-90.
Meanwhile, on April 22, 1997, Clemens reported to Dr. Cronin that his medication had become ineffective. He said he was having panic attacks about once a week and that he was experiencing a baseline anxiety. Dr. Cronin terminated Buspar and started Clemens on Xanax. On May 12, 1997, Clemens told Dr. Cronin he was continuing weekly counseling sessions with West. Clemens said the Xanax was not working and claimed he was having frequent panic attacks lasting up to 15 minutes with confusion, immobility and excessive sweating but no palpitations or sense of impending doom. Dr. Cronin administered a diagnostic scale for depression and Clemens' scores indicated severe depression. Dr. Cronin continued Clemens' Xanax prescription and added a prescription of Paxil, an antidepressent. Tr. 214-15.
On June 5, 1997, Clemens reported to Dr. Cronin that the Paxil was helpful with sleep and anger and said he had not had any new panic attacks. He reported that he was still in counseling and was making good progress with West. Dr. Cronin increased Clemens' dosage of both medications. Tr. 212. On July 7, 1997, Clemens went to the clinic for a follow up and saw Linda Leech, M.D. He told Dr. Leech that he had experienced one panic attack during the previous month. Clemens said the increased dosages had helped. He reported that "four to five months of counseling with West" had also been helpful, but this appears to be an overstatement of his treatment by West. Dr. Leech gave Clemens refill prescriptions for Xanax and Paxil. Tr. 211.
On July 10, 1997, at the request of Disability Determination Services (DDS), Jon Sobotka, M.D. performed a consultative evaluation. Dr. Sobotka interviewed Clemens, administered a psychiatric evaluation questionnaire and reviewed Clemens' medical records. Clemens told Dr. Sobotka that his anxiety and panic attacks had the following symptoms: excessive sweating in his armpits and palms; feeling faint or dizzy, turning white; hyperventilating; shortness of breath; slight dizziness, and fear of dying. He said these episodes only happened in public and lasted for 10 to 20 minutes. He said he thought the panic attacks probably started before he was assaulted. Clemens said the panic attacks had been getting worse and that he had developed agrophobia to the point that he would not leave his house much. When Dr. Sobotka listed the symptoms of PTSD, Clemens endorsed having nightmares, flashbacks and social numbing. Dr. Sobotka diagnosed alcohol dependence in remission, cannabis dependence in remission, dysthymia, panic disorder with agrophobia, probable PTSD, and probable attention deficit hyperactivity disorder (ADHD). Dr. Sobotka gave Clemens a Global Assessment of Functioning (GAF) code of 50, indicating serious impairment in social and/or occupational functioning. Tr. 191- 95.
DDS is a federally-funded agency of the Oregon Vocational Rehabilitation Division (VRD), Department of Human Services (DHS). It is the state agency that makes eligibility determinations on behalf and under the supervision of the Social Security Administration pursuant to 42 U.S.C. § 421(a) and 20 C.F.R. § 416.903.
The criteria for Agrophobia are (1) anxiety about situations in which escape is difficult or help is not available in the event of a panic attack, and (2) avoidance or endurance of such situations with marked anxiety about having a panic attack. DSM-IV 396-97.
The GAF scale is used to report the clinician's judgment of the individual's overall level of functioning on a scale of 1 to 100. DSM-IV 30-32.
On August 21, 1997, Clemens told Dr. Cronin he was doing much better and reported only situational depression. He told her that he had not experienced a panic attack since their last visit, which was on June 5. Tr. 209-11.
On August 25, 1997, Karen Bates-Smith, Ph.D., prepared a Mental Residual Functional Capacity (MRFC) assessment and a Psychiatric Review Technique Form (PRTF) for DDS. On the MRFC assessment, Dr. Bates-Smith indicated moderate limitation in (1) the ability to understand, remember and carry out detailed instructions, (2) the ability to interact appropriately with the general public, and (3) the ability to recognize normal hazards and take appropriate precautions. Dr. Bates-Smith opined that Clemens could understand, remember and carry out simple routine instructions with normal supervision. She opined that Clemens should not work with the public because of anxiety, but he was otherwise cooperative and socially appropriate. She said that his medications should preclude work in hazardous settings. Dr. Bates-Smith indicated Clemens had no other known limitations. On the PRTF, Dr. Bates-Smith concluded Clemens had dysthymia and panic disorder with agrophobia that were severe but did not meet or equal any impairment in the regulatory list of presumptively disabling impairments. Tr. 196-207.
On October 24, 1997, Clemens reported to Dr. Cronin that he was having panicky feelings and sweating about three times per week. He told Dr. Cronin that he was no longer seeing West, but had a new psychologist. Dr. Cronin increased Clemens medication dosage. Tr. 209-11.
At about this time Senior Disabled Services, a division of DHS, ordered a comprehensive psychological evaluation. The evaluation was performed by David R. Truhn, Psy.D. under the supervision of James A. Ewell, Ph.D. Dr. Truhn administered several generally accepted psychological tests including an intelligence assessment (WAIS-R) and a personality inventory (MMPI-2). He conducted a clinical interview. Based on test results and Clemens' self reporting, Dr. Truhn and Dr. Ewell prepared a report dated November 17, 1997. Tr. 232-41.
"WAIS-R" is the Wechsler Adult Intelligence Scale — Revised. "MMPI-2" represents the Minnesota Multiphasic Personality Inventory — 2. Tr. 232.
They found indications that Clemens was minimizing his past alcohol use and said his claim of present abstinence was questionable. They said he responded in a contradictory manner during the interview. They found borderline intellectual functioning based on Clemens' WAIS-R score which indicated an IQ of 72 to 82. This IQ range is predictive of poor concentration and attention, poor memory, poor verbal communication skills and difficulty with abstract reasoning. Individuals with this level of intellectual functioning often experience anger as a coping mechanism and distance themselves from others. Clemens showed good persistence. On the MMPI-2, Clemens scored in a pattern that suggests exaggeration of symptoms. His scores also indicated depressive symptoms and antisocial traits that would predict social withdrawal and feelings of inadequacy. Id.
An IQ of 70 or below supports a diagnosis of mental retardation. DSM-IV 39-41, 684.
Clemens denied common PTSD symptoms including nightmares, intrusive thoughts, flashbacks, hallucinations, hypervigilance and exaggerated startle response. He endorsed sleep disturbances and anxiety. Id.
Dr. Truhn and Dr. Ewell diagnosed panic disorder with agrophobia and alcohol dependency in partial remission. They noted that persons with panic disorder often respond very well to medication and behavioral therapy. They opined that vocational endeavors with one or two repetitive steps performed independently would suit Clemens. They suggested training for assembly line work or other tasks done independently of direct supervision. They gave Clemens a GAF scale code of 35, indicating "major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood." DSM-IV 32. Id.
On November 30, 1997, John Crossen, M.D., prepared another MRFC assessment and PRTF for DDS. His MRFC was nearly identical to the assessment done by Dr. Bates-Smith in August with two differences. Where Dr. Bates-Smith had found moderate limitation in Clemens' ability to recognize and take precautions for hazardous situations, Dr. Crossen found no evidence to support that limitation. Where Dr. Bates-Smith had found no evidence regarding Clemens ability to set goals, Dr. Crossen found he was moderately limited. The August and November PRTFs were essentially identical. Tr. 219-22.
On January 26, 1998, Clemens told Dr. Cronin he had been feeling stable without panic attacks or undue anxiety on his then-current level of medications. He also said his depression was improved and he had better motivation, but he claimed agrophobia and said he avoided crowds. Dr. Cronin urged him to resume counseling. On March 11, 1998, Clemens told Dr. Cronin he was concerned about losing disability benefits that paid his wife to stay home as an essential person to take care of him. He reported an increase in symptoms. Dr. Cronin again urged Clemens to resume counseling. Tr. 243-51.
On May 8, 1998, Clemens reported anxiety at a minimum with no panic attacks. He still had not met with a counselor. Dr. Cronin told him she would not continue his prescriptions unless he started counseling. On August 3, 1998, Clemens reported weekly panic attacks to Dr. Leech. He had still not kept an appointment with a counselor. Clemens continued to get prescription refills from Dr. Cronin through 1998. In January 1999, Dr. Cronin began to taper Clemens off of Xanax and began treatment with Zoloft. Dr. Cronin continued to urge Clemens to resume counseling, but apparently, Clemens never did so after terminating his sessions with West. Id.
II Evidence From Non-medical Sources
The ALJ heard testimony from Clemens' wife. She said that Clemens often had attacks during which he turned white and started shaking and sweating excessively. She said that he was afraid to go to new or crowded places. Mrs. Clemens said she had to push him to go anywhere, even to his counseling sessions, and described an incident when Clemens suddenly fell flat on the floor at a shopping mall and declared that he had to get out of the place. However, Mrs. Clemens also testified that these attacks sometimes happened even when Clemens was alone performing chores at home or just getting out of bed.
The ALJ heard testimony from Kathleen O'Gieblyn, a vocational expert (VE). The ALJ posed these hypothetical limitations: "he would need to be limited to simple, unskilled tasks where he would work independently of others. There should be no work in crowded conditions or with interaction with the general public." The VE opined that such a person could work as a janitor, an industrial cleaner, a landscape laborer and/or a grounds keeper. When the ALJ asked the VE to eliminate jobs where there might be people present in considerable numbers, but with no interaction required, the VE said these jobs would still be available in considerable numbers. When questioned by Clemens' counsel, the VE said that any job would require some level of supervision, but that the ones she had specified were not "closely supervised" positions "where somebody is breathing down your neck." The VE said that a person would not be able to maintain one of these jobs if he had to take breaks of up to three hours during his shift, two or three times per week or to miss more than two days per month because of his medical condition. Finally, the VE testified that a person would not be able to maintain these jobs if he repeatedly left work without saying anything because he received negative feedback.
IV ALJ Decision
At step one of the sequential analysis, the ALJ found that Clemens had not engaged in substantial gainful activity since the protective filing date of his application. At steps two and three, the ALJ found that Clemens had the following impairments: drug and alcohol abuse, PTSD/panic attacks, depression and borderline intellectual functioning that were severe, but did not meet or medically equal the criteria for any impairment in the regulatory list at 20 C.F.R. pt. 404, subpt. P, app. 1. At step four, the ALJ found Clemens had no past relevant work that he could perform.
At the fifth and final step, the ALJ found that Clemens retained the residual capacity to perform unskilled, simple tasks where he works independently of others in uncrowded conditions and without interaction with the general public. The ALJ found that he had no exertional limitations, but his impairments would preclude complex tasks. The ALJ relied on the testimony of the VE and ruled that, based on Clemens' residual functional capacity, age and education, he could make a successful adjustment to perform work which exists in significant numbers in the national economy. She propounded examples of such jobs, including work as a night janitor and as a landscape laborer. Accordingly, the ALJ found Clemens not disabled within the meaning of the Act.
DISCUSSION
Clemens contends the ALJ did not accurately assess his impairments because she improperly (1) rejected his testimony regarding subjective symptoms, (2) rejected the medical opinions of several doctors, (3) rejected the lay testimony of his wife, and (4) failed to include her own findings in the hypothetical posed to the VE.
I. Clemens' Subjective Symptom Testimony
The ALJ found Clemens' statements concerning the extent to which his impairment limited his ability to work were not entirely credible. Clemens argues the ALJ failed to provide legally adequate reasons.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. In the first stage, the claimant must (1) produce objective medical evidence of one or more impairments; and (2) show that the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The claimant is not required to produce objective medical evidence of the symptom itself, the severity of the symptom, or the causal relationship between the medically determinable impairment and the symptom. The claimant is also not required to show that the impairment could reasonably be expected to cause the severity of the symptom, but only to show that it could reasonably have caused some degree of the symptom. Id. at 1282. In the second stage of the analysis, the ALJ must assess the credibility of the claimant's testimony regarding the severity of the symptoms. If there is no affirmative evidence of malingering, the ALJ may reject the claimants testimony only if the ALJ makes specific findings stating clear and convincing reasons for the rejection, including which testimony is not credible and what facts in the record lead to that conclusion. Id. at 1284.
Clemens has established the presence of an impairment that could cause some degree of the symptoms he alleged in his testimony. The ALJ found as much in steps two and three of the sequential evaluation. Thus, the ALJ was required to provide clear and convincing reasons if she rejected Clemens' testimony. Id. I find that she gave adequate reasons.
The ALJ noted a pattern of contradictory statements. Clemens denied any present use of alcohol, but was arrested for driving while intoxicated. There are other references drinking episodes and Clemens testified that he drinks "a couple of beers on the weekend" on a regular basis. Dr. Ewell and Dr. Truhn found that Clemens seemed to be minimizing his use of alcohol. They described his interview responses in general as contradictory. He reported his work history in a similarly inconsistent fashion. Clemens testified that he did not have driver's license or any means of transportation, but there are indications that he had a truck and had been cited for traffic infractions. He was untruthful when describing the extent of his treatment with West. In June 1997, he told Dr. Cronin that he was still in counseling, but West sent a copy of her termination summary to DDS on May 19. In July he told Dr. Leech he had been in counseling with West for up to five months. It was not until October 1997 that he told his doctors he had terminated counseling. He then falsely claimed he was seeing a new therapist.
More importantly, the ALJ relied on contradictions in Clemens' descriptions of his impairment. Clemens told West and Dr. Sobotka he was having flashbacks and nightmares, but denied having them during his evaluation by Dr. Truhn and Dr. Ewell. Dr. Cronin's treatment notes show that Clemens told her he had not had any panic attacks from before May 12, 1997 through his appointment with her on August 21, 1997. He told Dr. Leech in July that he had experienced a panic attack during the previous month and told Dr. Sobotka on July 10 that his panic attacks had been "getting worse".
He told West that the main impact on his ability to work was that his panic attacks made him unable to be around people. Yet he testified that his only problem in work situations was being told by supervisors that he had not done something right. The ALJ also noted that Clemens did not show any outward sign of a panic attack during the hearing although he was confined in a small room with five strangers for over an hour.
Clemens told West and Dr. Sobotka that his panic attacks happened only in public. Then he testified that he had panic attacks even when no one else was present. Clemens told West and Dr. Cronin that his anxiety and panic attacks began when he was attacked with a baseball bat. He told Dr. Sobotka that he thought the panic attacks had started before the assault. The ALJ pointed out that Clemens had not worked even before the attack.
The ALJ also pointed out that Clemens seemed cavalier about the recommended treatment plan because he cancelled and/or failed to appear for counseling appointments time and again, and ignored Dr. Cronin's persistent urging to resume counseling.
The ALJ also relied on indications that Clemens exaggerated his impairment for secondary gain to obtain benefits. She noted that his MMPI-2 scores fell into a pattern that suggests exaggeration of symptoms. She also noted evidence in the record that Clemens claimed a marked increase in the frequency of panic attacks immediately after he lost benefits that paid for his wife to stay home with him as an "essential person". This claimed increase in symptoms happened after a period in which he had been stable on medications without anxiety or depression.
Despite these indications that Clemens lacked credibility, the ALJ viewed the evidence in the light most favorable to him. To the extent the ALJ rejected Clemens' testimony, I find that she provided a sufficient basis for doing so. In any event, the limitations articulated by the ALJ (i.e. only simple tasks, working independently of others, not in crowded conditions, no interaction with the general public) fairly summarize the conclusions that can be drawn from his testimony.
II Medical Opinions
The weight given to the opinion of a physician depends on whether the physician is a treating physician, an examining physician, or a nonexamining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). More weight is given to the opinion of a treating physician because the person has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d at 1285. If a treating or examining physician's opinion is not contradicted by another physician, the ALJ may only reject it for clear and convincing reasons. Even if it is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830. The opinion of a nonexamining physician, by itself, is insufficient to constitute substantial evidence to reject the opinion of a treating or examining physician. Id. at 831. It may constitute substantial evidence when it is consistent with other evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989).
A physician's opinion of disability "premised to a large extent upon the claimant's own accounts of his symptoms and limitations may be disregarded where those complaints have been properly discounted." Flaten v. Secretary of Health Human Services, 44 F.3d 1453, 1463-64 (9th Cir. 1995). Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability. Magallanes, 881 F.2d at 751.
A. Dr. Ewell and Dr. Truhn
These psychologists performed a consultative examination and evaluation, but provided no treatment.
The ALJ considered their report and accepted their findings and diagnosis. The ALJ rejected only a state General Assistance Impairment Report form that was apparently submitted to a state agency in support of a claim for state benefits. Dr. Truhn or Dr. Ewell marked a box indicating "yes" where the form asked if Clemens' impairment made him unable to "do any work activity averaging 4 hours or more per day." Tr. 242. Because this conclusion is in conflict with the opinions of other doctors, clear and convincing reasons are not required; specific and legitimate reasons supported by substantial evidence are sufficient for rejecting the General Assistance form.
The ALJ gave several reasons for rejecting it. First, she pointed out that state benefits programs are not governed by the same criteria as the Commissioner. State programs may have different criteria for disability and eligibility for benefits as well as different definitions of terms such as "work activity". These differences reduce the evidentiary value of the rejected conclusion.
Second, the ALJ said that the summary conclusion was inconsistent with more detailed statements in the evaluation report. Specifically, she noted the evaluators' statement that Clemens' would be suited to train for simple repetitive jobs such as assembly line work. I agree with Clemens that being suited to train for a position is not the same as being presently able to perform it. However, I find the report indicates that Dr. Truhn and Dr. Ewell did not consider Clemens' medical condition to preclude all vocational endeavors. The ALJ also noted Clemens' own statements to the effect that he could work if he did not have to work with others or submit to close supervision.
Third, the ALJ said the summary conclusion did not take into account indications in the report that Clemens' was exaggerating symptoms for secondary gain. Clemens argues that the evaluators made their summary conclusion after taking exaggeration of symptoms into account, but it is very difficult to conclude that Clemens is correct based solely on a check mark response to a boilerplate question. This is why such check mark diagnoses are disfavored. See Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). The ALJ's interpretation of the check mark is equally as well supported by the record as that of Clemens.
Fourth and finally, the ALJ noted that the summary conclusion was based predominantly on Clemens' self reporting. These doctors acknowledged that Clemens' reports were contradictory and questionable and the ALJ properly discounted them for the reasons described above. I conclude that the ALJ gave specific and legitimate reasons for rejecting the check mark conclusion that Clemens is unable to do any work. The reasons are supported by substantial evidence.
B. Dr. Sobotka, Dr. Cronin and Dr. Bates-Smith
Contrary to Clemens' argument, the ALJ did not reject the opinions of Dr. Sobotka or Dr. Cronin. He argues that Dr. Sobotka's GAF scale rating of 50 is equivalent to a medical opinion that Clemens was disabled. He argues that Dr. Cronin's statement "Hopefully this will help patient with Disability claim" is equivalent to a statement that Clemens was disabled. Tr. 210. I am not able to read as much into these statements as Clemens does. Neither statement amounts to a medical opinion of disability and neither required a specific reference by the ALJ.
Clemens argues that the ALJ improperly ignored Dr. Bates-Smith's opinion that Clemens "is precluded from working around hazards." This refers to her finding of moderate impairment in this category of her MRFC assessment. She modified her finding with this hand written notation: "Meds preclude working in hazardous settings." Tr. 198. Dr. Bates-Smith clearly felt Clemens' medications rather than his condition would impose this limitation. The distinction is pertinent because Dr. Bates-Smith did not specify the medication that concerned her and because Clemens' medications and dosage levels changed after Dr. Bates-Smith prepared the form. I also note that the vocational expert did not suggest any positions that are performed in "hazardous settings". The VE suggested only janitorial work in office buildings and landscape labor. Additionally, I note that this finding is not supported by any other evidence in the record, as Dr. Crossen found, and is not suggested in any other medical opinion. It is suspect also because her expertise in pharmacology has not been established. Under these circumstances, the ALJ was not required to make specific reference to this minor portion of Dr. Bates-Smith's assessment.
II Lay Testimony
The ALJ did not make any reference to the testimony given by Clemens' wife. Clemens contends this violates the ALJ's duty to give specific reasons germane to each lay witness whose testimony is rejected. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). I disagree because the ALJ did not discredit her testimony. Rather the ALJ accounted for the limitations she described by posing hypothetical limitations precluding jobs that would require (1) working with others, (2) close supervision, (3) working in crowded conditions, (4) interacting with the general public, or (5) working in any place where people are present in considerable numbers, even where no interaction is required. These limitations fairly summarize the impairments described in Mrs. Clemens' testimony. To the extent this argument relies on her testimony that Clemens turns white, shakes and sweats on a daily basis, sometimes even while alone, it fails because Clemens has never claimed he is unable to work for that reason. In his legal assertions and his reports to physicians and counselors, Clemens' complaints have been based on problems interacting with others and/or the agrophobic component of his disorder. Additionally, Mrs. Clemens did not claim that the sweating and shaking she reportedly observed daily was disabling. There is no evidence that it rose to the severe disabling level of the panic attacks that Clemens reported having in public or in work situations. Under these circumstance, the ALJ did not err in her treatment of Mrs. Clemens' testimony.
IV Vocational Hypothetical
Clemens contends that the vocational hypothetical was legally inadequate because it did not incorporate the ALJ's own finding from her PRTF that Clemens had deficiencies of concentration, persistence, or pace often resulting in failure to complete tasks in a timely manner. Tr. 26.
Hypothetical questions posed to a vocational expert must specify all of the limitations and restrictions of the claimant. DeLorme v. . Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). If the hypothetical does not contain all of the claimant's limitations, the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy. Id.
This court has ruled that a hypothetical which limits a claimant to doing only simple routine repetitive work, which does not require close attention to detail and no work at more than a regular pace properly states the limitations for a finding of "often" in response to this PRTF question. See e.g. Swenson v. Commissioner of the Social Security Administration, No. Civ 99-6188-KI, 2000 WL 486753 (D.Or. 2000) (limitation that the person could not concentrate on complex tasks was sufficient); Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997) cited in Williams v. Apfel, No. Civ. 00-6150-KI, 2001 WL 204811 (D.Or. 2001) (limitation that the person could only do unskilled or semiskilled work due to difficulties with concentration and attention). The PRTF question is in the disjunctive so it is not a finding that the claimant had deficiencies in all three limitations (i.e. concentration, persistence and pace). Id.
In this case the ALJ posed a hypothetical limiting Clemens to "simple, unskilled tasks", but did not inform the VE that Clemens' had deficiencies of concentration, persistence or pace. The VE might have thought the "simple, unskilled" limitation was intended to accommodate the ALJ's finding that Clemens lacked education and experience. She might have responded differently had she known of the additional findings of borderline IQ and deficiencies of concentration, persistence or pace.
Unfortunately, the ALJ gave no indication of the specific functional limitations covered by her PRTF finding and no indication of which functional limitations she intended to address with the hypothetical limitation to simple unskilled tasks. Regrettably, this court cannot determine whether the VE's opinion was based on an accurate assessment of all of Clemen's functional limitations. Therefore, the opinion has no evidentiary value.
It is not necessary for the ALJ to repeat verbatim every one of her findings in the vocational hypothetical. However, the limitations described in the hypothetical must be directly analogous to those in the ALJ's findings. This equivalence must be reasonably evident or the court will remand with instructions to accurately and plainly incorporate all of the claimant's limitations in the hypothetical. Abrego v. Commissioner of Social Security Admin., 2000 WL 682671, No. Civ. 99-6173-JO (D.Or. 2000); Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988); accord Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996). In this case the ALJ failed to make it clear that the limitations described in the vocational hypothetical are directly analogous to the relevant finding regarding concentration, persistence or pace. Therefore, remand is appropriate so that the ALJ can accurately and plainly incorporate all of Clemens' limitations in the vocational hypothetical.
CONCLUSION
The court finds the ALJ's decision was not supported by substantial evidence. The decision is REMANDED to the Commissioner for further proceedings in accordance with this opinion.
IT IS SO ORDERED.
DATED this 17th day of May, 2001.
/s/ GARR M. KING United States District Court Judge