Opinion
CV-99-965-ST
November 8, 2000
For Plaintiff, Richard A. Sly, Attorney at Law, Portland, Or.
For Defendant, Lucille G. Meis, Social Security Administration, Office of the General Counsel, Seatle, WA
For Defendant, William W. Youngman, United States Attorney's Office, Portland, Or.
OPINION AND ORDER
INTRODUCTION
Claimant, Elizabeth J. Jondahl ("Jondahl"), brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her request for Supplemental Security Income ("SSI") benefits. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c).
For the reasons set forth below, the Commissioner's decision should be reversed and this case should be remanded for an award of benefits.
PROCEDURAL BACKGROUND
Jondahl filed her application for SSI payments on June 18, 1996, alleging disability since June 15, 1991, because of depression and hypoglycemia. Tr. 118-20, 123. Her application was denied initially and on reconsideration. Tr. 100-10. On March 3, 1997, Jondahl requested a hearing before an administrative law judge ("ALJ"). Tr. 111-12. The hearing was held on February 9, 1998, in Portland, before ALJ Riley M. Atkins. Tr. 51-99. Jondahl, Joan Arbor, Sandra Garner, David Prickett, and a vocational expert ("VE") testified. Id. The ALJ considered the testimony and the evidence in the record and issued his decision on April 22, 1998. Tr. 26-38. He determined that although Jondahl could not return to her former employment as a pizza cook or telemarketer, she was not disabled because she could still perform other work which exists in substantial numbers in the national economy. Tr. 37.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on May 16, 2000 (docket #12).
Despite Jondahl's request, the Appeals Council, on May 14, 1999, declined to review the ALJ's findings. Tr. 4-6. Thus, the ALJ's decision is the final agency decision, subject to review by this court. 20 C.F.R. § 416.1481.
STANDARDS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995), cert denied, 517 U.S. 1122 (1996). 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 last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b).
In step two the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. § 416.920(c). If not, the claimant is not disabled.
In step three the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; see 20 C.F.R. § 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(e). If the claimant can work, she is not disabled. If she cannot perform past relevant work, then the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; see 20 C.F.R. § 416.920(e) (f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, then she is not disabled. 20 C.F.R. § 416.966.
The Commissioner's decision denying benefits will be disturbed only if it is based on legal error or it is not supported by substantial evidence in the record. Flaten v. Secretary of Health Human Serv's., 44 F.3d 1453, 1457 (9th Cir 1995). Substantial evidence is "more than a scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir 1997). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable
person might accept as adequate to support a conclusion." Flaten, 44 F.3d at 1457. The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir 1986).
STATEMENT OF THE FACTS
I. Jondahl's Testimony
Jondahl was born on February 7, 1973, and was thus 25 years old at the time of the hearing on February 9, 1998. Tr. 57. She is approximately five feet, ten and one half inches tall and at the time of the hearing weighed approximately 260 pounds. Tr. 58. She reports that she has been overweight since age 19. Id. Her educational history is somewhat unclear, but it appears that Jondahl was suspended from Wilson High School in Portland, Oregon and went to another high school for some time; dropped out and subsequently obtained her GED. Tr. 57-58.
At the time of the hearing, Jondahl was in treatment for depression and stated that she had been taking antidepressant medications since the fall of 1994. Tr. 60. Her treatment involved various doctors at Oregon Health Sciences University ("OHSU") who prescribed Serzon, 150 milligrams, twice a day. Id. She has not seen a psychiatrist at OHSU, because her insurance will not pay for it. Tr. 61. Instead, she sees her therapist, Arbor, twice a week. Id.
Jondahl described attacks of insomnia, lack of appetite, and edginess that occur for a brief amount of time a few times a year. Tr. 62-63. Jondahl also described periodic episodes of "freaking out" when she gets upset and cries. Tr. 63. Her anti-depressant medicine, Serzone, only works "mildly" and does little for her depression. Tr. 67. She feels worse, however, when not taking the Serzone. Tr. 68. She described her depression as:
feeling lethargic, feeling really down, having very little energy, feeling hopeless. And hot have — not having the desire to do things that I normally like to do. Not being able to really enjoy things that I usually enjoy, like music or reading books, or movies. And there are periods where I'll, I'll get really, really sad, and just cry. And then I'll, I'll, I'll do things like, to numb myself out, so I don't feel these things. Like playing video games or watching TV.Id.
Sometimes Jondahl isolates herself and will not have contact with anyone other than her friend, David Prickett, for months. Tr. 68. She also described depression occurring perhaps once a month, lasting for a week sometimes, accompanied by a fear of being around people. Tr. 68-69. When she has this feeling, she stays inside or she goes out only at night. Tr. 69.
When depressed, Jondahl watches a lot of television, plays a lot of video games, and reads books. Tr. 72. Other times, she likes going to movies, spending time with people, and being "outdoors in natural settings." Tr. 72-73. She sees David Prickett "a few times a week" and they go out for coffee, go to his place and rent a movie, eat out, and "a lot of times we just drive around together." Tr. 73.
Jondahl claims an inability to maintain work due to lack of motivation, low self esteem, and stress caused by fear of failure. Tr. 64. She was fired from one of her last jobs, but states that usually she will quit because of stress and anxiety. Id. This particular anxiety, Jondahl described as "intense energy inside me that is hard to contain, and difficult to, I guess, be still and do the work and concentrate." Id. The longest she has been able to keep a job is 10 months, when she was in high school. Tr. 65. Between high school and the date of the hearing, Jondahl estimated that she had worked part-time at five or six different jobs including conducting telephone surveys (November 1995 to May 1996), courtesy clerk in a grocery store (three weeks in the Spring of 1995); cook at a pizza restaurant (April 1989). Tr. 71-72. She receives food stamps and she began receiving General Assistance in October 1996. Tr. 65.
At the time of the hearing, Jondahl had been living in her own apartment for 11 months. Tr. 66. Prior to moving into her own apartment, she lived at various times in shelters, with her parents, and with Prickett, and was completely homeless for a period of at least two weeks. Id. She does her own cleaning, shopping, and cooking, though she stated that she did not really cook that much. Tr. 73
Jondahl denied using or abusing any kind of substance in the previous six or seven months and last used methamphetamine in May 1996. Tr. 67. She admitted to using alcohol in the past but denied excessive use. Tr. 58-59. For approximately six months in 1997, she was involved with Project Stop, a support group for substance abuse which met once a week. Tr. 59. She successfully completed the program in August or September of 1997. Tr. 60.
II. Witnesses' Testimony
A. Joan Arbor
The next witness to testify at the hearing, Joan Arbor ("Arbor"), had been counseling Jondahl for a little over a year. Tr. 76. Arbor has a Master's degree in Social Work, has worked in the domestic violence field for about three and one half years, and works for West Women's and Children's Shelter ("West Women's") where Jondahl is an outreach client. Id. She stated that Jondahl
exhibits many of the criteria for major depressive disorder. She has a depressed mood almost all day, more days than not. She has fatigue, loss of energy, loss of interest, psychomotor retardation. She has feelings of worthlessness. She's often uncontrollably tearful. She also exhibits some of the symptoms of borderline personality disorder. She has a, a instability in interpersonal relationships and self image. Instability in the, instability in the affect, particularly anxiety and anger.
Tr. 76-77.
Arbor and Jondahl have scheduled meetings twice per week and frequently meet more often. Tr. 77. However, when Jondahl's "depressive symptomology is really intense," Arbor will not see her for a couple of weeks at a time and up to a month. Id. At such times, Jondahl will miss appointments because she reports to Arbor that she is unable to leave the house. Id. Roughly one out of four visits, Jondahl will arrive for therapy tearful. Tr. 78.
Arbor noted that Jondahl has a long history of "pretty severe" isolation and social withdrawal. Id. She stated that Jondahl's "social interaction is severely impaired" and that even with the two persons closest to her, she can have long periods of time without interaction. Tr. 78-79. In terms of Jondahl's potential interactions with a supervisor, Arbor explained:
She has described a history of like decompensation at work. She'll be working. And then all of a sudden, you know, there will be a mood disturbance or a change in affect. And she either becomes very tearful and can't, can't stop, or has like a sensation of unreality. Can no longer continue to function on the job. That's, that's just the history that she's provided to me. What's most concerning to me is that, that the, that instability in, in many areas of her life that impairs social functioning. You know, that, that inability to, to maintain regular contact with me. And that gives me the impression that — you know, there are often times where she's unable to even leave the house to go to the grocery store when she needs to get food because of her depressive symptomology. So you know, that leads me to believe that, that, you know, if that's happening in all these areas of her life, that that would happen in, in that area of her life as well.
Tr. 79.
Arbor, whose emphasis is in domestic violence issues, explained that Jondahl has a history of domestic violence in "[r]elationships with male partners, where there was emotional abuse, verbal abuse." Tr. 80. She disagreed with any suggestion that Jondahl may be manipulative. Tr. 83. She agreed, however, with the assessment that the antidepressant drugs appear largely ineffective and that Jondahl appears to have a borderline personality disorder. Id. She also stated though, that she would not "allow that to rule out the fact that she has a major depressive disorder." Tr. 84.
B. Sandra Garner
Sandra Garner ("Garner") is a case manager with West Women's who works with single women in the shelter's transitional housing. Tr. 85. She has worked at West Women's for nine years and before that, worked for the Department of Social Services in Colorado Springs, Colorado. Tr. 88.
Jondahl came to the shelter on October 10, 1996, and then moved into on-site transitional housing on November 12, 1996. Tr. 85. Garner, from that point on, met weekly and sometimes more often with Jondahl. Id. Jondahl missed several of her meetings because she was too depressed to get out of bed. Id. Garner sometimes found that she had "to go upstairs and knock on the door to get her to come down." Id. She knew when Jondahl was depressed because of her demeanor and her slow, "kind of sluggish speech, the, the fact that she was unkempt." Tr. 87.
Jondahl moved into subsidized Housing and Urban Development ("HUD") housing on March 2, 1997. Tr. 85-86. Garner encouraged her to contact someone at Vocational Rehabilitation, but she did not keep her appointments with her. Tr. 86. Since March 2, 1997, Jondahl's visits with Garner have been "very sporadic." Tr. 87. Jondahl often calls to cancel appointments, and according to Garner, does so because she's depressed and "just can't get up and get doing to come down." Id.
C. David Prickett
David Prickett ("Prickett") has known Jondahl for "a couple of years" and described himself as her friend. Tr. 90-91. Though it varies, at the time of the hearing he and Jondahl had been seeing each other about once per week, and talk on the telephone "now and then." Tr. 93. When together, they drive around and go out for coffee. Tr. 91. He explained that "usually it seems like she's — usually it seems like she's down. And if, if not, and it's not in the beginning, then it ends up that way it seems." Tr. 93. He reported that Jondahl's apartment is disordered and it does not appear to Prickett that she washes clothes or makes her bed. Tr. 93-94.
III. Medical Evidence
A. 1988-1996
Jondahl first benefitted from mental health treatment when she was 15 years old. She was hospitalized for 10 days in November 1988 for setting off fire alarms, hostile and aggressive behavior, and for lighting bits of paper and putting them in trash containers. Tr. 137. In December 1988, she was hospitalized for an overdose of Sominex. Tr 179.
From December 1988 until 1994, Jondahl's medical records are sparse and consist of treatment notes obtained from "Outside In." Tr. 231-64. These records indicate some instances of anxiety and depression in 1993, but provide little or no substantive information about symptoms, severity, or treatment.
On August 14, 1994, at age 21, Jondahl overdosed again on Sominex and was admitted to Providence Medical Center for three days. Tr. 212-230. Keith Griffin, M.D., completed a psychiatrist admission note describing Jondahl as a "[y]oung woman with a severe emotional disturbance/mental disorder." He diagnosed Cyclic Mood Disorder — Cyclothymic/Manic-Depressive; Personality Disorder — Borderline Histrionic; and "Overdose with Sominex Resolving" and noted that "[s]tressors are lack of any real life accomplishments and ties to others." Tr. 228. Alan S. Jo, M.D., noted a history of substance abuse and homelessness and diagnosed Jondahl with borderline personality, dependant personality, histrionic personality, and tobacco abuse. Tr. 212. M. Resnick, M.D., also examined Jondahl and stated that he considered her to be "severely character disordered with predominant dependent traits. She has a history of victimization and substance use." Tr. 215. He found no evidence of formal disturbance in thinking, delusions, or hallucinations, and considered her to be of average intellect, "alert and oriented." Id. He doubted that antidepressants would make a significant impact and stated that "primarily the responsibility for her affect and success remains with her becoming actively involved in her own care and treatment." Tr. 216.
On May 12, 1995, Jondahl presented to the Emanuel Hospital Emergency Room with complaints of depression. Tr. 265. She stated that she had "been pretty well managed" with Paxil, but that she had run out of it three days before. Id. Since that time, she had experienced difficulty in sleeping, poor appetite, depression, and had missed work. Id. Rodney W. Dodge, M.D., diagnosed depression and gave her a prescription for Paxil and instructions to contact Garlington Center to establish some long-term care. Tr. 266. There is no indication that she did so.
On October 18, 1995, Kimberly Smith-Cupani, M.D., saw Jondahl for depression. Tr. 283. She noted that Jondahl's Paxil prescription had been increased the prior week and that she seemed to be feeling better. Id. Jondahl told Dr. Smith-Cupani that she thought a lot of her depression might be due to hypoglycemia because she did not eat well and had no money for food but survived on food stamps and assistance from her parents. Id. Dr. Smith-Cupani diagnosed depression and symptomatic hypoglycemia and recommended treating the hypoglycemia with improved diet. Id.
On November 1, 1995, Dr. Smith-Cupani saw Jondahl in a follow-up appointment for depression. Tr. 282. She noted that Jondahl had recently moved in with a friend, was looking for work, and was going to take the GED examination and improve her diet. Id. Dr. Smith-Cupani continued Jondahl's prescription for Paxil and noted a need for follow-up in one month. Id.
The record is silent as to any treatment during the following nine months. Progress notes from September 1996 to March 1997, however, demonstrate Jondahl's continuing treatment for depression. Tr. 290-95.
On October 6, 1996, Jondahl was admitted to OHSU for two days. Tr. 298. She was referred to the emergency room on the recommendation of a Metro Crisis Line Worker. Id. She reported depressed mood, poor energy level, excessive sleep, poor concentration, anhedonia, excessive crying spells, helplessness, hopelessness, despair, and poor eating habits. Id. She stated that she had been homeless for three weeks, was fearful of staying in abandoned houses as she had been doing, and that all the shelters were full the night she was admitted. Id. She reported taking Paxil regularly for two years and seeing a counselor since November 1995. Id. Lawrence H. Sacks, M.D., Assistant Professor of Psychiatry assessed Jondahl as a young woman with chronic depression, "probably secondary to borderline personality disorder." Tr. 305. He changed Jondahl's prescription to Effexor and reported that although Jondahl asked him for a letter of disability, he did not give her one. Tr. 299.
B. Dr. Barron's Opinion
Some six months later, on April 2, 1997, Nancy Barron, Ph.D., evaluated Jondahl and explained that she had also previously evaluated her some six months earlier. Tr. 329. Jondahl reported to Dr. Barron that she had been hospitalized at OHSU in October 1996, that her mother took her home after she was discharged, and that she then remained with her parents until she was admitted to West Women's. Id. Jondahl reported that she moved on March 1, 1997, from West Women's into her own subsidized apartment, but continued treatment with West Women's on an outpatient basis. Id. She told Dr. Barron that over the winter she had been depressed and tired, and had feelings of low blood sugar. Id. She stated, though, that Effexor improved her level of energy. Id. She also stated that she was heavily depressed until early February 1997, "wanting to isolate, numb out, and bury herself in a book, the TV, or video games. She thought people hated her, but later accepted that that was inaccurate." Id. She reported being "clean and sober" since October 1996, she understood that drugs and alcohol interact poorly with depression, she was feeling better with the sunnier weather, and she was making an effort to eat better. Tr. 329. She had not tried to find work since the previous spring and she told Dr. Barron that she "freaks out" about working, especially at the kind of work she might find, like telephone soliciting. Id. She also told Dr. Barron that she wanted to become a social worker and therapist, and understood that it would take years of schooling to do so. Id. She expressed "strong ambivalent feelings about SSI, believing that she wants it but that it might mean she's disabled for life." Id.
Dr. Barron thought that Jondahl was functioning better than she had been in October 1996. Id. She stated that Jondahl's thought processes were more organized and easier to follow than in October and that her insight had improved. Tr. 331. Her depression was "still evident, but in better remission." Id. Dr. Barron diagnosed major depressive episodes, recurrent, in partial remission, with seasonal pattern and borderline personality disorder. Id. She found Jondahl's improvement over the prior six months heartening, and recommended continued support toward independence "to help incorporate the attitude that depression can be managed," continued financial support for the "immediate" future, a plan for financial independence, continued counseling at West Women's, and assessment, counseling, and placement for vocational education or training. Id at 331-332.
On the same date, Dr. Barron completed a Mental Impairment Questionnaire ("Questionnaire") and a Psychiatric Review Technique form ("Review"). Tr. 315-319 320-28. In the Questionnaire, she noted symptoms including sleep disturbance, mood disturbance, emotional lability, decreased energy, anhedonia (loss of interests), feelings of guilt/worthlessness, obsessions or compulsions, and pathological dependence. Tr. 315-16. She indicated that Jondahl was not a malingerer and that Jondahl's impairments were reasonably consistent with the symptoms and functional limitations identified in the evaluation. Tr. 316. She indicated that Jondahl would likely miss more than three days of work per month and she indicated that she would have difficulty working at a regular job on a sustained basis because of "depressive symptoms and emotional lability." Tr. 318.
In the Review, Dr. Barron checked boxes indicating the presence of affective disorders and personality disorders. Tr. 320. She also checked boxes indicating the presence of persistent mood disturbance, emotional lability, anhedonia, sleep disturbance, decreased energy, feelings of guilt and worthlessness, involvement in activities with a high probability of painful consequences, and intense and unstable interpersonal relationship and impulsive and damaging behavior. Tr. 322-26. She indicated that Jondahl had "moderate" restrictions of activities of daily living, "marked" difficulties in maintaining social functioning, and "often" had deficiencies of concentration. Tr. 327.
C. Joan Jenkins' Opinion
Six months after Dr. Barron's evaluation, on October 2, 1997, Joan Jenkins, M.S.W. ("Jenkins"), also completed a Mental Impairment Questionnaire indicating that she had sessions twice per week with Jondahl dating back to January 1997, but that Jondahl had missed sessions three times for several weeks at a time due to depressive symptomology. Tr. 333. She identified Jondahl's symptoms as sleep disturbance, mood disturbance, social withdrawal or isolation, decreased energy, anhedonia, feelings of guilt or worthlessness, difficulty thinking or concentrating, suicidal ideation, persistent irrational fears, somatization unexplained by organic disturbance, and hostility and irritability. Tr. 333-34. She stated that Jondahl was not a malingerer; had symptoms consistent with the functional limitations described in her evaluation; and had some change in her symptomology due to psychotherapy. Tr. 334-35. She also noted that Jondahl had increased difficulty interacting with people when her depressive symptomology worsened; became easily confused and fearful; had problems with hygiene when her symptoms worsened; would be absent from work more than three times a month; and would have difficulty working a regular job on a sustained basis. Tr. 336.
D. Post-Hearing
After the ALJ rendered his April 22, 1998 decision, Jondahl submitted to the Appeals Council medical records post-dating the ALJ's decision. Tr. 12-19. Progress notes from an OHSU physician, David Pollock, M.D., associate professor of psychiatry, dated June and July 1998. Dr. Pollock prescribed an additional medication (Depakote) as a mood stabilizer, but did not otherwise change her treatment plan. Tr. 17. His last progress note, dated July 29, 1998, assessed Jondahl with bipolar disorder with significant episodes of depression and also indicated a borderline personality disorder. Tr. 19.
IV. Vocational Evidence
The VE first identified Jondahl's past work as a pizza cook (medium, unskilled) and telemarketer (sedentary, semi-skilled). Tr. 95. The ALJ then posed a series of hypotheticals. First, he asked the VE to assume a claimant with no demonstrated exertional impairments but with certain psychological or emotional conditions, such as "[d]ealing with the public, seriously limited, but not precluded. Dealing with stressful work, seriously limited, but not precluded. Understanding, remembering and carrying out detailed instructions, seriously limited, but not precluded." Tr. 96. The VE stated that such a person could not return to Jondahl's former work. Id. Instead, the VE opined that given Jondahl's age, education, and prior work experience, she could work at certain light unskilled positions which exist in substantial numbers regionally and nationally. Id. She identified work assembling small products, cannery work, dining room attendant, and motel cleaner. Tr. 96-97.
The ALJ then modified the hypothetical. Tr. 97. He added, in addition to the previous limitations, a limited but satisfactory ability to maintain attention and concentration. Id. The VE indicated that the additional factor would not change her conclusion. Id.
The ALJ then modified the hypothetical for a third and final time. Id. He asked the VE to consider a hypothetical claimant whose combined psychological impairments would cause her to miss an average of two or more days a month. Id. The VE responded that such a limitation would eliminate the jobs she had identified. Id. In addition, such a limitation would eliminate all substantial gainful activity. Id.
ALJ'S DECISION
The ALJ first determined that Jondahl had not engaged in any substantial gainful activity since her alleged onset date of June 15, 1991. Tr. 27. At step two of the sequential evaluation process, he determined that Jondahl has an affective disorder with depression, a borderline personality disorder and a substance abuse disorder (in remission). Tr. 28. He concluded that these impairments have more than a minimal effect on Jondahl's ability to engage in work-like activities and are severe impairments. Id. Her obesity and hypoglycemia, however, did not qualify as severe impairments. Id. In addition, any other conditions appearing sporadically in the record also did not constitute severe impairments. Id. Proceeding to step three in the process, the ALJ determined that Jondahl's identifiable limitations, in combination, did not meet or equal any of the impairments in the Listing of Impairments ("Listings"). Tr. 28-29.
Next, at step four in the process, the ALJ analyzed Jondahl's residual functional capacity ("RFC"), which describes the range of work activities that a claimant can perform despite her impairments. Tr. 29-34. First, he considered subjective allegations, including Jondahl's own description of her limitations. Tr. 29-30. He determined that Jondahl's statements concerning her limitations are not entirely credible. Tr. 30. However, her depression and borderline personality disorder result in non-exertional impairments. Tr. 34. Her ability to deal with stressful work, the public, and to understand and carry out detailed instructions, are seriously limited but are not precluded. Id. Based on this RFC, the ALJ ultimately concluded, based on the VE's testimony, that Jondahl could not return to her former employment. Id.
Lastly, at step five in the process, the ALJ determined that Jondahl could work at other employment available regionally and nationally. Tr. 34-35. He identified, with the VE's assistance, light, unskilled jobs such as small parts assembler, cannery worker, dining room attendant, and motel cleaner. Tr. 35. Accordingly, the ALJ found that Jondahl is not disabled and not eligible to receive benefits. Tr. 36.
DISCUSSION
Jondahl seeks an order granting a period of disability and payment of benefits, or, alternatively, a remand for a supplemental administrative hearing incorporating the OHSU records submitted to the Appeals Council after the ALJ's decision. She raises a host of arguments, chiefly: (1) the ALJ improperly discredited the medical sources (Jenkins and Dr. Barron) and Jondahl's testimony about her limitations; (2) the ALJ failed to consider Jondahl's obesity and hypoglycemia in combination with her other impairments; and (3) the Appeals Council failed to consider the post-hearing medical evidence from OHSU.
I. Discrediting Medical Opinions and Jondahl's Testimony A. Jenkins
In the course of rejecting Jenkins' October 2, 1997 opinion, the ALJ acknowledged that had he credited her opinion, he necessarily would have found Jondahl disabled. He explained that Jenkins reported "marked, even extreme limitations in the claimant's daily and social activities, frequent deficiencies of concentration, and repeated episodes of decompensation . . . which would meet the listed impairments in Section 12.0 of Appendix 1." Tr. 28. He rejected Jenkins' opinion, however, because:
the assertions of Ms. Jenkins are contrary to the findings and evaluation by Leslie Barron, M.D., whose evaluation of the claimant is not nearly as limited . . . . Dr. Barron's report is based on a bit of psychological testing . . . while Ms. Jenkins' "clinical findings" appear to be the claimant's own subjective comments . . . Further, the claimant herself testified to daily activities, socializing and going out with her friend; she asserted that she has no problem concentrating, and demonstrated the ability to function independently.
Tr. 28-29
Because Jenkins is not a doctor, psychologist, or other "acceptable" medical source, the ALJ is not required to specifically accept or refute her testimony. Bunnell v. Sullivan, 912 F.2d 1149, 1152 (9th Cir 1990), rev'd on other grounds, 947 F.2d 341 (9th Cir 1991) (en banc); see also 20 C.F.R. § 404.1513(a) (e) (distinguishing between "acceptable medical sources" and "other sources" such as therapists and social welfare agency). Nevertheless, the ALJ should treat such testimony, at a minimum, as lay witness testimony which is "qualified evidence" that the ALJ must consider. See Sprague v. Bowen, 812 F.2d 1226, 1231-32 (9th Cir 1987).
An ALJ may reject lay witness testimony only for specific reasons germane to each witness. See Regennitter v. Commissioner of Social Security Admin., 166 F.3d 1294, 1298 (9th Cir 1999). Here, the ALJ rejected Jenkins' opinion because it contradicted Dr. Barron's evaluation, lacked objective findings, and contradicted Jondahl's testimony and proven ability to function independently. Tr. 28-29.
The last of these reasons is suspect. In contrast to Jenkins' opinion, the ALJ specifically referenced Jondahl's testimony about her "daily activities, socializing, and going out with her friend." However, Jondahl's daily activities, including her visits with Prickett (apparently her only friend), do not contradict Jenkins' opinion. Jondahl's testimony indicates episodes of extreme depression separated by episodes of being able to more or less function normally. When depressed, she often exhibits isolating behaviors as substantiated by Arbor and Garner. Jondahl testified that "[s]ometimes I don't have contact with well, except for my friend [Prickett], my best friend. I'll always talk to him. But other people, like family and other friends, sometimes I'll go through for months without talking to them, even calling them." Tr. 68. Although she testified that she likes to go to movies and spend time with people, she does so only when she is not depressed. Tr. 72-73.
The ALJ also stated that Jondahl "asserted that she had no problem concentrating." However, that mischaracterizes Jondahl's testimony. She testified that she "sometimes" had difficulty concentrating, which is consistent with the episodic nature of her depression:
Q Okay. Do you have difficulties concentrating?
A Sometimes, not all the time.
Q Okay. When you're faced with performing tasks that have to be completed, do you have any difficulty maintaining the pace and the concentration necessary to complete the job activity?
A I think that really depends
Q Okay. What does it seem to depend upon?
A I don't know. I can't say. It just — sometimes, sometimes not. I don't know why.
Tr. 64-65.
Furthermore, Jondahl's ability to function independently simply does not contradict Jenkins' opinion. Jenkins did not report that Jondahl was a vegetable, and Jondahl's not overly complicated life of shopping, cooking occasionally, and "sporadically" cleaning her apartment does not contradict any of the medical evidence of episodic depression.
Nevertheless, the remaining two reasons given by the ALJ to discount Jenkins' opinion are fully supported by the record. Though more of an explanation would have been helpful, the ALJ found that Jenkins' opinion was overly pessimistic when compared with Dr. Barron's opinion. Both witnesses completed the same Mental Impairment Questionnaire, but Jenkins indicated greater limitations than did Dr. Barron. Compare Tr. 316-17 (Dr. Barron's Questionnaire) and Tr. 334-35 (Jenkins' Questionnaire). Jenkins' completed Questionnaire also was far more pessimistic than Dr. Barron's Review and evaluation. In each of three categories of functional limitation (restriction of activities of daily living, difficulties in maintaining social function, and deficiencies of concentration), Jenkins indicated a greater degree of limitation than did Dr. Barron. Compare Tr. 327 and Tr. 336. In addition, the ALJ correctly noted that Jenkins' assessment lacked objective findings. While Dr. Barron conducted an I.Q. test and a "Bender Motor Gestalt" test (Tr. 330-31), Jenkins did not conduct any objective tests, but instead relied solely on Jondahl's subjective complaints.
In sum, Dr. Barron is an examining medical source whose opinion was supported by some objective testing criteria. In contrast, Jenkins is a lay witness whose opinion was formed without the benefit of objective testing. Therefore, the ALJ did not err in his decision to attach more weight to Dr. Barron's opinion and to discount Jenkins' somewhat contradictory opinion.
Because Jenkins is not a treating source, the ALJ's burden in discrediting her testimony is light. Given this low bar, the ALJ provided sufficient specific and germane reasons for rejecting Jenkins' testimony, even though one of his reasons lacks support in the record. Thus, the ALJ's decision in this regard was proper.
B. Dr. Barron
Jondahl next argues that the ALJ erred by: (1) not properly crediting Dr. Barron's opinion as is relates to Listing 12.04; and (2) failing to credit Dr. Barron's conclusion that Jondahl would miss more than three days of work per month due to her impairments.
Listing 12.04 relates to depression.
1. Listing 12.04
In order to determine whether a claimant with a mental impairment meets a listed impairment, the Commissioner must consider whether specified diagnostic criteria ("paragraph A" criteria) are met and whether specified functional restrictions are present ("paragraph B" criteria). 20 C.F.R. § 404.1520a; Lester, 81 F.3d at 828. The claimant's mental impairment must satisfy both paragraphs A and B in order to satisfy the Listing criteria. Id.
Here, Dr. Barron's opinion, even if credited, does not support a finding that Jondahl is disabled by virtue of Listing 12.04. Though Dr. Barron's Review indicates that Jondahl meets all the paragraph A criteria for Listing 12.04 (Tr. 323), she does not meet the criteria in paragraph B. In order to satisfy the criteria of paragraph B, Jondahl must demonstrate at least two of the following: (1) marked restriction in daily living activities; (2) marked restriction of daily living; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation. 20 C.F.R. Pt 404, Subpt. P, App. 1, § 12.04(B). "The purpose of the functional criteria contained in paragraph B is to measure the severity of the claimant's impairment." Lester, 81 F.3d at 829, citing 20 C.F.R. Pt 404, Subpt. P, App. 1, § 12.00(C). A claimant whose mental impairment results in the requisite functional restrictions meets the Listing and is presumed to be unable to work. Id.
Dr. Barron indicated that Jondahl suffered from "marked" difficulties in maintaining social functioning and "moderate" restrictions of activities of daily living, but had insufficient evidence as to any degree of limitation for episodes of decompensation. Tr. 327. As for the final factor, Dr. Barron indicated that Jondahl "often" suffered difficulties in maintaining concentration, persistence or pace. Id. "Often" is not severe enough to satisfy the Listings. Id. Therefore, according to Dr. Barron, Jondahl only meets one of the required two criteria in paragraph B and does not qualify as presumptively disabled under Listing 12.04. Thus, the ALJ did not err when he determined that Jondahl did not meet the criteria for Listing 12.04.
2. Absenteeism
Dr. Barron indicated by checkmark in the Questionnaire that Jondahl would miss more than three days of work per month due to her impairments or treatment. Tr. 318. When the ALJ later asked the VE whether a hypothetical claimant who had to miss two or more days a month would be employable, the VE responded that such a condition would eliminate all substantial gainful activity. Tr. 97. Therefore, Dr. Barron's opinion, if credited, would compel a finding that Jondahl is incapable of sustaining full-time employment and is entitled to benefits.
The ALJ references Dr. Barron's opinion only twice, first when using it to discredit Jenkins' opinion and again when finding Jondahl not fully credible. In the second reference, he discredits Dr. Barron's entire opinion, explaining:
At the hearing, the claimant asserted she had no problems concentrating, and described social and daily living functions which were inconsistent with Dr. Barron's report. The claimant testified further that while she had some insomnia, edginess, and the general symptoms demonstrated in her earlier hospital treatment . . . these symptoms occurred only a few times a year. Consequently, while the claimant may indeed have one or two episodes of decompensation, the assessment by Dr. Baron is not fully supported.
Tr. 32.
The Ninth Circuit distinguishes among the opinions of three types of physicians (and psychologists and psychiatrists): (1) those who treat the claimant; (2) those who examine but do not treat the claimant; and (3) those who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir 1996). If the treating doctor's opinion is not contradicted by another doctor, it may only be rejected only for "clear and convincing" reasons. Id. If the treating doctor's opinion is contradicted by another doctor, it may be rejected only for "specific and legitimate reasons" supported by substantial evidence in the record. Id. The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician. Id. As with a treating physician, an examining physician's opinion may only be rejected for "clear and convincing" reasons, but if the examining physician's opinion is contradicted by another doctor, it may be rejected for "specific and legitimate reasons" supported by substantial evidence in the record. Id.
The ALJ's decision to discredit Dr. Barron's opinion is obviously not based on a conflicting opinion given by another physician. Since Dr. Barron is an examining medical source, the ALJ must provide "clear and convincing" reasons for rejecting her opinion. Lester, 81 F.3d at 830. This he failed to do.
First, as noted above, contrary to the ALJ's statement, Jondahl asserted at the hearing that she did have some problems concentrating. Tr. 64-65.
Second, Jondahl's self-described social and daily living functions were not inconsistent with Dr. Barron's opinion. Jondahl testified that when depressed, she watches a lot of television, plays a lot of video games, and reads books. When she is not depressed, she likes going to movies, spending time with people, and being outdoors. Though she sees Prickett fairly often, she sometimes does not see other people for months. She does her own cleaning, shopping, and cooking. Dr. Barron's opinion does not differ markedly from this description of activities. Dr. Barron diagnosed major depressive episodes, recurrent, in partial remission, with seasonal pattern and borderline personality disorder. She thought that Jondahl's improvement over the preceding six months was "heartening" and opined that though Jondahl may continue to struggle with depression and low blood sugar, "there is evidence that with continued strong support, she may be able to manage both in a way which allows her to be productive and satisfied." Tr. 331. Also, however, she noted that Jondahl would have difficulty working at a regular job on sustained basis due to depressive symptoms and "emotional lability." Tr. 318.
Jondahl's testimony therefore reflects the episodic nature of her depression and illustrates that when depression strikes, she isolates herself and cannot function in a normal manner. Dr. Barron likewise described episodic depression more prevalent in the winter months. Jondahl's testimony concerning her impairments simply does not paint a far brighter picture of her abilities than does Dr. Barron. Instead, it is apparent from both Jondahl's testimony and Dr. Barron's opinion that when Jondahl is not acutely depressed, she is capable of various activities. However, when she is depressed, she isolates herself.
Both Arbor and Garner witnessed such behavior on numerous occasions. For example, when Jondahl lived at West Women's between November 1996 and March 1997 Garner observed that "when she would get terribly depressed, she also didn't take care of her own personal hygiene. Because she just couldn't do it. Couldn't come downstairs to eat." Tr. 86. Garner sometimes found that she had to go upstairs and knock on the door to get her to come down. Id. Arbor similarly noted that when Jondahl is depressed, she becomes isolated, withdraws socially, and misses her appointments because she is unable to leave the house. Tr. 77-78, 82. The ALJ dismissed Arbor's conclusion, stating that "other explanations are equally as plausible, such as [Jondahl's] demonstrated lack of motivation." Tr. 33. The ALJ apparently concluded, without any objective medical support, that a lack of motivation is somehow within Jondahl's conscious control and unrelated to her depression. To the contrary, the objective medical evidence and observations by lay witnesses all confirm that Jondahl suffers from episodic depression which renders her incapable of engaging in normal activities.
Lastly, the ALJ's determination that Jondahl's symptoms occurred only a few times a year. is simply not supported by the record. While Jondahl did testify to anxiety attacks occurring only "a few times a year" that were "usually kind of brief," (Tr. 62), she also described periodic episodes of "freaking out." Tr. 63. Finally, she described feelings of depression and isolation occurring much more often than a few times a year:
Q: You tend to isolate then?
A: Yeah. And also I have this fear of going outside, of people when I'm severely depressed. And I'll feel like I don't want to be seen, like I'm really ashamed of how I look.Q: How often does that feeling manifest itself?
A: Quite a lot. I'd say months, maybe once a month. But it'll last for a week sometimes.
Q: So there's — what do you do when you have this fear of going out? This —
A: I just stay inside. I don't go anywhere, or I'll go at night, because, because it's dark, and, and I won't be seen as well as in the daylight.
Tr. 68-69 (emphasis added).
The ALJ did not specifically address Dr. Barron's opinion that Jondahl would miss more than three days of work per month due to her impairments. Instead, he chose to summarily discredit her findings in general. He failed, however, to provide clear and convincing reasons for doing so. His stated reasons are not supported by substantial evidence in the record. Rather, Dr. Barron's opinion appears to be well-grounded in objective testing and corroborated by Jondahl's testimony, the witness testimony, and the other medical reports. Therefore, the ALJ erred in rejecting her opinion.
3. Consequences of ALJ's Error
Having determined that the ALJ erred in rejecting Dr. Barron's opinion, this court must decide whether to remand this case for further administrative proceedings or to reverse and remand for an award of benefits. Such a decision is within the discretion of the court. Reddick v. Chater 157 F.3d 715, 728 (9th Cir 1998). Crediting evidence and remanding for an award of benefits is appropriate where
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir 2000), quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir 1996).
Because the ALJ erred in rejecting Dr. Barron's opinion, this court should credit those opinions as true. Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir 1994). Most critically, Dr. Barron opined that Jondahl would miss three or more days of work per month. The VE testified that a hypothetical claimant with Jondahl's other restrictions who had to miss even two or more days a month would be unemployable. Therefore, Dr. Barron's opinion as to Jondahl's work absences precludes Jondahl from gainful full-time employment. Thus, the ALJ's decision should be reversed and the case remanded for an award of benefits. Because this decision concludes the matter, this court need not discuss Jondahl's remaining arguments.
ORDER
For the reasons set forth above, the Commissioner's decision is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for an award of benefits.