Opinion
NO: 1:14-CV-3191-RMP
10-09-2015
DARLA TERRY-KAMMENZIND, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR AWARD OF BENEFITS
BEFORE THE COURT are Plaintiff Darla Terry-Kammenzind's Motion for Summary Judgment, ECF No. 13, and Defendant Carolyn W. Colvin's Motion for Summary Judgment, ECF No. 15. The Court has reviewed the motions and administrative record, and is fully informed.
BACKGROUND
Darla Terry-Kammenzind (hereinafter referred to as "Ms. Terry") protectively filed an application for Supplemental Security Income (SSI) on January 1, 2011, alleging disability beginning December 1, 2010. Tr. 19. Ms. Terry requested a hearing, which was held via live-video before Administrative Law Judge ("ALJ") Tom Morris on September 12, 2012. Tr. 19. Ms. Terry was present and represented by counsel D. James Tree. Id. The ALJ heard testimony from vocational expert ("VE") Trevor Duncan. Id. A supplemental video hearing was held on April 26, 2013, again in front of ALJ Morris and with testimony from VE Duncan. Id.
The ALJ found that Ms. Terry had not engaged in substantial gainful work, as defined in 20 C.F.R. § 416.920(b), since December 10, 2010. Tr. 21. Further, the ALJ found that Ms. Terry had the following severe impairments as defined by 20 C.F.R. § 416.920(c): post-traumatic stress disorder, major depressive disorder, osteoarthritis of the cervical spine, right knee internal derangement, neurogenic bladder, and asthma. Id.
However, the ALJ found that Ms. Terry did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). Tr. 23. The ALJ further found that Ms. Terry had the residual functional capacity to lift and/or carry fifty pounds occasionally and twenty pounds frequently; could stand and/or walk for a total of two hours in an eight-hour workday with normal breaks; could sit for a total of six hours in an eight-hour workday with normal breaks; could occasionally kneel, crouch, crawl, and climb ramps and stairs; should not stoop for longer than two minutes; should never climb ladders or scaffolds; could tolerate occasional exposure to dust, odors, fumes, and pulmonary irritants; could perform simple, routine work with customary breaks and lunch; could have occasional contact with supervisors; could have occasional contact with coworkers; should have no contact with the public for work tasks; could tolerate low stress; should engage in work that requires no more than the occasional use of independent judgment; and should not engage in any work task that takes her more than three to five minutes from a restroom. Tr. 24-5.
Given Ms. Terry's age, education, work experience, and residual functional capacity, the VE testified that there were a number of jobs available in the national economy for an individual sharing her characteristics. Tr. 32. The ALJ then found that "the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." Tr. 33. The ALJ concluded that Ms. Terry was not under a disability as defined by the Social Security Act. Id. Ms. Terry's application was denied on May 20, 2013. Tr. 16.
Ms. Terry filed a request for review by the Appeals Council, which was denied on October 10, 2014. Tr. 1. Ms. Terry then filed a complaint in the District Court for the Eastern District of Washington on December 12, 2014, ECF No. 1, and the Defendant answered the complaint on February 27, 2015. ECF No. 8. This matter is therefore properly before the Court pursuant to 42 U.S.C. § 405(g). Ms. Terry filed a motion for summary judgment on June 15, 2015. ECF No. 13. The Commissioner filed a cross motion for summary judgment on July 27, 2015. ECF No 15. Ms. Terry filed a reply memorandum on August 10, 2015. ECF No. 17.
STATEMENT OF FACTS
The facts of this case are set forth in the administrative hearing transcripts and record, ECF No. 9. Ms. Terry was 41 years old when she applied for SSI, 43 years old at the initial hearing, and 44 years old at the supplemental hearing. See Tr. 19, 31. Ms. Terry has a high school education and has not worked since 1993 when she ceased working in order to be a stay-at-home parent. Tr. 21, 31.
STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of a Commissioner's final decision. 42 U.S.C. § 405(g). A reviewing court must uphold the Commissioner's decision, determined by an ALJ, when the decision is supported by substantial evidence and not based on legal error. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation omitted).
The reviewing court should uphold "such inferences and conclusions as the [Commissioner] may reasonably draw from the evidence." Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a whole, not just the evidence supporting the Commissioner's decision. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); see also Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986) ("This court must consider the record as a whole, weighing both the evidence that supports and detracts from the [Commissioner's] conclusion."). "[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997).
It is the role of the trier of fact, not the reviewing court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the reviewing court may not substitute its judgment for that of the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (internal citation omitted). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
SEQUENTIAL PROCESS
Under the Social Security Act (the "Act"),
an individual shall be considered to be disabled . . . if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if his impairments are of such severity that claimant is not only unable to do his previous work but cannot, considering claimant's age, education, and work experience, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). "Thus, the definition of disability consists of both medical and vocational components." Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one determines if the claimant is engaged in substantial gainful activities. If the claimant is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. § 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activities, the ALJ, under step two, determines whether the claimant has a medically severe impairment or combination of impairments. If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. 20 C.F.R. § 416.920(a)(4)(ii).
If the impairment is severe, the evaluation proceeds to step three, which compares the claimant's impairment to a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. 20 C.F.R. § 416.920(a)(4)(iii).
Before proceeding to step four, the claimant's residual functional capacity is assessed. 20 C.F.R. § 416.945(a). An individual's residual functional capacity is the ability to do physical and mental work activities on a sustained basis despite limitations from any impairments. Id.
If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to step four, where the ALJ determines whether the impairment prevents the claimant from performing work she has performed in the past. If the claimant is able to perform her previous work, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(iv).
If the claimant cannot perform her previous work, the final step considers whether the claimant is able to perform other work in the national economy in view of her residual functional capacity, age, education, and past work experience. 20 C.F.R. § 416.920(a)(4)(v).
At step five, the initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The claimant satisfies this burden by establishing that a physical or mental impairment prevents her from engaging in her previous occupation. The burden then shifts to the Commissioner to show that (1) the claimant can perform other substantial gainful activity, and (2) a "significant number of jobs exist in the national economy" which the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
ISSUES
Ms. Terry argues that the ALJ committed reversible error by (1) improperly determining that Ms. Terry was not credible; (2) improperly rejecting expert medical evidence from an examining physician; and (3) failing to support the finding that Ms. Terry's neurogenic bladder impairment would allow her to sustain gainful employment with substantial evidence.
DISCUSSION
I. Credibility Determination
Ms. Terry alleges that the ALJ found that she lacked credibility based on impermissible reasons including consideration of (1) inconsistent statements concerning her alcohol use; (2) inconsistent statements concerning her social life; (3) a lack of motivation to work as shown through past work history; (4) the receipt of public assistance and child support; and (5) the failure to seek mental health treatment. ECF No. 13 at 19-23; ECF No. 17 at 8-12. Additionally, Ms. Terry claims that the ALJ failed to apply the correct legal standard when assessing credibility. ECF No. 17 at 9-10.
A. Specific Credibility Findings
The Commissioner's credibility determination must be supported by findings sufficiently specific to permit the reviewing court to conclude the ALJ did not arbitrarily discredit a claimant's testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). If there is no affirmative evidence that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony regarding the severity of symptoms. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
If the ALJ finds that a claimant's statements are not credible, he need not reject the entirety of a claimant's symptom testimony. See Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The ALJ may find the claimant's statements about pain to be credible to a certain degree, but discount statements based on his interpretation of evidence in the record as a whole. See id. If the credibility findings are supported by substantial evidence in the record, the reviewing court may not second-guess the ALJ's determination. See Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). However, an ALJ's failure to articulate specifically "clear and convincing" reasons for rejecting a claimant's subjective complaints is reversible error. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007).
In addition to ordinary techniques of credibility evaluation, the ALJ may consider the following factors when weighing the claimant's credibility: the claimant's reputation for truthfulness; inconsistencies either in allegations of limitations or between statements and conduct; daily activities and work record; and testimony from physicians and third parties concerning the nature, severity, and effect of the alleged symptoms. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
As discussed below, of the various errors alleged by Ms. Terry regarding credibility, this Court finds that the ALJ only erred in misinterpreting a treatment record to incorrectly note an inconsistent statement. The ALJ gave clear and convincing reasons supported by substantial evidence in the record for his overall credibility finding. As such, this Court finds that the ALJ's consideration of the misattributed inconsistent statement was harmless error. Based on the ALJ's stated reasoning and the record as a whole, the Court concludes that the ALJ did not commit reversible error in finding that "the claimant's statements concerning the intensity, persistence, and limiting effects . . . are not entirely credible." Tr. 26.
1. Inconsistent Statements Concerning Alcohol Use
The ALJ noted a number of inconsistencies between Ms. Terry's testimony during the hearing and her prior medical records regarding her alcohol use. Tr. 29. Ms. Terry, while admitting her inconsistent reports, argues that "the ALJ found this impairment to be non-severe" so "this inconsistency has little relevancy." ECF No. 13 at 23.
"Determining whether inconsistencies are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount the opinions . . . falls within [the ALJ's] responsibility." Morgan, 169 F.3d at 603. There is substantial evidence in the record that Ms. Terry made inconsistent statements regarding her alcohol use. See Tr. 67, 458, 584. As the ALJ properly supported his finding, this Court concludes that the ALJ did not err when considering these inconsistencies in his overall credibility analysis.
2. Inconsistent Statements Concerning Social Life
Ms. Terry argues that the ALJ committed reversible error when he concluded that "the claimant has a more active social life than she has portrayed in connection with this claim." ECF No. 13 at 22; Tr. 29. Ms. Terry claims that this conclusion was based on the ALJ's misinterpretation of treatment notes to erroneously find inconsistent statements. ECF No. 13 at 22.
The Court finds that there is substantial evidence to support the ALJ's finding that Ms. Terry made inconsistent statements regarding friends. Ms. Terry testified that she had no friends. Tr. 67, 70. However, medical records from October 8, 2012 show that Ms. Terry reported having two friends in Yakima. Tr. 585. Other medical records reference friends giving Ms. Terry rides to medical appointments. Tr. 322, 337. Ms. Terry claims that these rides were from a volunteer organization called People for People. ECF No. 17 at 9. Even if Ms. Terry has proffered alternative reasonable explanations, it is not this Court's role to second-guess the reasonable conclusions reached by the ALJ. See Rollins v. Massanri, 261 F.3d 853, 857 (9th Cir. 2001) (noting that "the ALJ's interpretation of [the claimant's] testimony may not be the only reasonable one. But it is still a reasonable interpretation and is supported by substantial evidence; thus, it is not our role to second-guess it."). The Court finds that there is substantial evidence supporting the ALJ's conclusion.
The Court finds that the ALJ erred in finding that Ms. Terry lived with her fiance on June 7, 2011. The ALJ based this finding on a treatment note that included an outdated notation that Ms. Terry was living with her fiance. Tr. 29, 465. As the report correctly notes in another paragraph, Ms. Terry was at the time living in a women's shelter with her teenage daughter. Tr. 465.
While the Commissioner concedes that the ALJ erred in misinterpreting this treatment note, she argues that it should be treated as harmless error given the ALJ's other findings concerning Ms. Terry's inconsistent statements regarding her social history. ECF No. 15 at 5. Contrary to Ms. Terry's assertion that this Court must remand if it finds a single error in the ALJ's credibility analysis, ECF No. 17 at 8, "[s]o long as there remains 'substantial evidence supporting the ALJ's conclusions on . . . credibility' and the error 'does not negate the validity of the ALJ's ultimate [credibility] conclusion,' such is deemed harmless and does not warrant reversal." Carmickle v. Comm'r, Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (internal citations omitted). "[T]he relevant inquiry . . . is not whether the ALJ would have made a different decision absent the error . . . [but] is whether the ALJ's decision remains legally valid, despite such error." Id.
The ALJ based his conclusion that Ms. Terry had a more active social life than she portrayed in her testimony on the inconsistent statements he noted concerning her friends and living with her fiance. Tr. 28-9. The ALJ's finding concerning Ms. Terry's inconsistent statements regarding her social life was in turn merely one part of the overall credibility analysis. Tr. 26-29. As discussed above, there was substantial evidence to support the ALJ's conclusion that Ms. Terry made inconsistent statements about having friends. As these specific findings provide sufficient evidence for the ALJ's conclusion that Ms. Terry had a more active social life than she portrayed in her testimony, there is substantial evidence supporting this finding notwithstanding the error identified above. This Court finds the ALJ's error in misattributing an inconsistent statement to Ms. Terry to be harmless.
3. Lack of Motivation to Work
Ms. Terry argues that the ALJ's analysis of her limited work history was reversible error. ECF No. 13 at 20. The ALJ found that Ms. Terry "appears to have little interest in working outside the home and her allegation of disability must be viewed in this context." Tr. 29. The ALJ based this conclusion on the claimant's earnings report which indicated she had "only worked six years in her entire life." Id. Ms. Terry alleges that she did not work due to her physical and mental health impairments, not out of a lack of motivation. ECF No. 13 at 20.
An ALJ is permitted to consider a claimant's work history when making a credibility determination. Light, 119 F.3d at 792; see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (finding that the ALJ properly considered the claimant's "poor work history" and that she had "show little propensity to work in her lifetime" in analyzing the claimant's credibility). Even if Ms. Terry has proffered alternative reasonable explanations, it is not this Court's role to second-guess the reasonable conclusions reached by the ALJ. See Rollins, 261 F.3d at 857. As such, this Court finds that the ALJ did not err when considering Ms. Terry's limited work history as demonstrating a lack of motivation to work.
4. Receipt of Public Assistance and Child Support
Ms. Terry argues that the ALJ's consideration of her receipt of public assistance and child support was improper and reversible error. ECF No. 13 at 20. In his decision, the ALJ found that "[t]he assistance the claimant receives in the form of child support payments, food stamps, and free housing provides a disincentive for her to return to work." Tr. 29.
Some courts have questioned the consideration of government assistance and other benefits as part of a credibility analysis. See Goldthrite v. Astrue, 535 F. Supp. 2d 329, 338 (W.D.N.Y. 2008) ("The fact the Plaintiff was receiving other income from public assistance does not, by itself, mean that she is less credible when testifying about her pain."); Aguiar v. Apfel, 99 F. Supp. 2d 130, 138 (D. Mass. 2000) ("Claimant's motivation cannot automatically be questioned merely because she has availed herself of whatever public assistance that the state or federal government provides."); see also Caldwell v. Sullivan, 736 F. Supp. 1076, 1081 (D. Kan. 1990) ("An ALJ is required to be fair and impartial, not prejudiced against a claimant because of the claimant's financial status."). However, this view is not universal. See Duc Van Nguyen v. Shalala, No. C 93-2448-SC, 1994 WL 362263, at *5 (N.D. Cal. Feb. 1, 1994) ("Here, the ALJ simply considered plaintiff's 'obvious disincentive' to work in light of his AFDC benefits and income as one factor bearing plaintiff's credibility."). The ALJ discussed public assistance as one of several factors in his analysis that demonstrated a lack of motivation to work. In this instance, the Court finds that the ALJ did not commit reversible error when considering Ms. Terry's receipt of public assistance and child support.
5. Failure to Seek Mental Health Treatment
Ms. Terry argues that the ALJ's consideration of her failure to seek mental health treatment is reversible error. ECF No. 13 at 21. The ALJ noted that, although Ms. Terry testified that "her reluctance to leave her residence made it more difficult for her to access mental health treatment," "[t]he claimant has a large medical record [demonstrating that] she clearly had little difficulty seeking medical attention for her other complaints." Tr. 28.
Courts have found that the failure to seek mental health treatment should not be counted against a mentally ill claimant. See Regennitter v. Comm'r of Social Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) ("Indeed, we have particularly criticized the use of a lack of treatment to reject mental complaints both because mental illness is notoriously underreported and because 'it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.'") (internal citation omitted); see also Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (noting that "federal courts have recognized a mentally ill person's noncompliance with psychiatric medications can be, and usually is, the 'result of [the] mental impairment [itself] and, therefore, neither willful nor without a justifiable excuse'") (internal citation omitted).
The Court finds, in this instance, that there is substantial evidence to support the ALJ's conclusion that Ms. Terry's failure to seek mental health treatment negatively affects her credibility. The ALJ based this finding entirely on Ms. Terry's extensive medical record, which demonstrates that she was able to attend numerous medical appointments concerning her other ailments. Tr. 28. It is not unreasonable to conclude that a claimant who can attend one medical appointment has the capability to schedule and attend others that she believes necessary. As such, the ALJ did not err when considering Ms. Terry's failure to seek mental health treatment.
B. Legal Standard for Credibility Analysis
In her reply brief, Ms. Terry adds an allegation that the ALJ used the incorrect legal standard when analyzing her credibility. ECF No. 17 at 9-10. This claim is apparently based on a footnote in the Commissioner's brief which states that "[i]t is the Commissioner's position that 'clear and convincing reasons' is not the proper standard, here or elsewhere, because it is contrary to the 'substantial evidence' standard articulated in 42 U.S.C. § 405(g)." ECF No. 15 at 3 n.1. Ms. Terry argues that this statement equates to a policy of misapplying the law, which the ALJ can be assumed to have adhered to when assessing credibility. ECF No. 17 at 9-10.
This Court finds no evidence in the record that the ALJ did not follow the "clear and convincing reasons" standard when assessing credibility. Ms. Terry fails to point to any specific section of the ALJ's decision, instead arguing generally that "[w]here agency policy differs from the law as established by the courts . . . it must be assumed that an ALJ made his decision according to agency policy." Id. at 10. Given the lack of factual evidence and legal support provided for Ms. Terry's argument, this Court will not find error based on mere conjecture. As such, the Court finds that the ALJ used the correct legal standard when assessing Ms. Terry's credibility.
II. Rejecting Medical Opinion Evidence
Ms. Terry argues that the ALJ improperly rejected the opinion of her examining physician, Dr. Jenifer Schultz, Ph.D. ECF No. 13 at 8. Ms. Terry claims that the ALJ (1) used the incorrect legal standard in determining the extent to which Dr. Schultz's opinion was based on self-reports and (2) failed to support his conclusions regarding Dr. Schultz's opinion with clear and convincing reasons. Id. at 8-12.
The ALJ assigned little weight to Dr. Schultz's opinion regarding Ms. Terry's social limitations and ability to tolerate stress as her opinion was primarily based on the claimant's "less than fully credible self-report." Tr. 31. To further support this conclusion, the ALJ noted "numerous documented instances where the claimant presented with normal mood and affect." Id. The ALJ also concluded that, as Ms. Terry inaccurately informed Dr. Schultz that she had been clean and sober for the prior six years, Ms. Terry had not been entirely truthful during the evaluation. Id. Overall, the ALJ found that "the degree of symptomatology [Ms. Terry] described at the evaluation with Dr. Schultz is not supported by the treatment records." Id.
A. Legal Standard to Determine if Opinion was Based on Self-Reports
Ms. Terry argues that the ALJ committed reversible error by using the incorrect legal standard when determining that Dr. Schultz based her opinion on Ms. Terry's self-reports. ECF No. 13 at 10 n.5. "If a treating provider's opinions are based 'to a large extent' on an applicant's self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Ms. Terry argues that as the ALJ stated that Dr. Schultz's opinion was merely "based on self-reports," the ALJ improperly rejected her opinion. ECF No. 13 at 10 n.5.
Contrary to Ms. Terry's position, the ALJ found that Dr. Schultz's opinion was "primarily based on the claimant's less than fully credible self-report." Tr. 31 (emphasis added). In this context, "largely" and "primarily" are interchangeable. As such, the Court finds that the ALJ applied the correct legal standard when analyzing Dr. Schultz's opinion.
B. Clear and Convincing Reasons to Discount Dr. Schultz's Opinion
Ms. Terry argues that the ALJ improperly rejected Dr. Schultz's medical opinion. ECF No. 13 at 8-12. She alleges that the ALJ impermissibly found her self-reports to be not entirely credible and failed to consider evidence in the medical records that supported Dr. Schultz's conclusions. Id.
"[T]he Commissioner must provide 'clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "[T]he opinion of an examining doctor . . . can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. "[I]t is incumbent on the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding the physicians' findings." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).
Concerning medical opinion evidence, "[t]he ALJ is responsible for resolving conflicts in medical testimony, and resolving ambiguity. Determining whether inconsistencies are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount the opinions . . . falls within this responsibility." Morgan, 169 F.3d at 603.
The ALJ assigned less weight to Dr. Schultz's opinion concerning Ms. Terry's social limitations and ability to handle stress based on: (1) the fact that Dr. Schultz's opinion was primarily based on Ms. Terry's less than fully credible self-report and (2) inconsistencies with treatment records which report Ms. Terry presenting with normal mood and affect. Tr. 31.
There is substantial evidence in the record that Dr. Schultz largely based her opinion on self-reports. Even a cursory glance at Dr. Schultz's opinion provides support for the ALJ's conclusion that the doctor primarily relied on self-reports. Nearly every sentence begins with some variation of "Ms. Terry reported" or "[s]he stated." Tr. 583-586.
Ms. Terry presents her case as akin to one where the medical expert's opinion was based on both self-reports and clinical observations. ECF No. 13 at 10. "[W]hen an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Ghanim, 763 F.3d at 1162; see also Ryan v. Comm'r of Social Sec., 528 F.3d 1194, 1200 (9th Cir. 2008) (finding that substantial evidence did not support the ALJ's conclusion that the medical expert relied on self-reports more heavily than on his own clinical observations). The instant case is distinguishable, however, as the ALJ specifically noted which portions of the record supported his finding that Dr. Schultz primarily relied on Ms. Terry's self-reports. See Tr. 31.
Ms. Terry contends that psychiatric impairments often must be evaluated based solely on a patient's self-reports. ECF No. 13 at 10; ECF No. 17 at 3. As support, Ms. Terry notes that "[n]o laboratory tests or physical examinations exist, or are even known to be possible, to diagnose some psychological disorders. And the practice of psychologists often consists entirely of professional assessment of patient-reported symptoms and experiences." Vanieken-Ryals v. Office of Pers. Mgmt., 508 F.3d 1034, 1042 (Fed. Cir. 2007).
This Court recognizes that the diagnosis of many social and psychological limitations will depend on a physician's analysis of a patient's self-reported symptoms. A medical opinion is not however automatically discarded simply because it is based on a patient's self-reports. As discussed above, "[i]f a treating provider's opinions are based 'to a large extent' on an applicant's self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion." Ghanim, 763 F.3d at 1162 (emphasis added).
In making a determination to reject a medical opinion based on self-reports, the ALJ must take into account the claimant's credibility. See id. Here, the ALJ first found that Dr. Schultz's opinion was primarily based on self-reports. Tr. 31. The ALJ then rejected Dr. Schultz's opinion based on his finding that, as Ms. Terry was not entirely credible, her self-report to Dr. Schultz was likely not entirely credible either. Id. The ALJ provided further support for his conclusion by noting that Ms. Terry was not candid with Dr. Schultz concerning her alcohol use. Id. As such, the ALJ did not err when discounting Dr. Schultz's opinion on the basis of Ms. Terry's credibility.
Ms. Terry further argues that the ALJ, while citing portions of the treatment notes that describe her as having a normal mood and affect, ignored other entries which indicated she suffered from anxiety. ECF No. 13 at 11-12. To the contrary, the ALJ merely noted inconsistencies in the record where Ms. Terry presented "without signs of depression or anxiety." Tr. 28. The ALJ also included social limitations as part of Ms. Terry's residual functional capacity. Tr. 25. Further, Ms. Terry argues that the ALJ reviewed the same medical records as Dr. Schultz and impermissibly substituted his lay opinion for her expert one. ECF No. 13 at 11. However, it is the ALJ's responsibility to evaluate any inconsistencies in the record and weigh the evidence accordingly. See Morgan, 169 F.3d at 603.
Ms. Terry argues that the ALJ reached his conclusion by ignoring the opinions of the other medical experts, Drs. Mark Gonsky and Molly McNab. ECF No. 13 at 8. However, the ALJ previously had presented clear and convincing reasons for rejecting both Dr. Gonsky's and Dr. McNab's conclusions regarding Ms. Terry's mental health. The ALJ assigned little weight to Dr. Gonsky's opinion as he "did not cite any objective signs or findings in support of the functional limitations he opined." Tr. 29. Further, the ALJ noted that Dr. Gonsky's treatment note indicated that his opinion was, as with Dr. Schultz's, primarily based on Ms. Terry's self-reports. Id. The ALJ assigned little weight to Dr. McNab's opinion regarding Ms. Terry's psychiatric complaints as the doctor wrote that she would defer to a psychiatrist's opinion on the matter. Tr. 29-30.
As such, this Court finds that the ALJ did not commit reversible error when discounting Dr. Schultz's medical opinion regarding Ms. Terry's mental health. The ALJ provided the requisite clear and convincing reasons supported by substantial evidence in the record for rejecting the portions of the opinion concerning Ms. Terry's social limitations and ability to handle stress.
III. Analysis of Neurogenic Bladder Impairment
Ms. Terry argues that the ALJ failed to support his conclusion that her neurogenic bladder would not prevent her from working provided she was not more than three to five minutes walking distance from a restroom. ECF No. 13 at 13. Specifically, she contends that the neurogenic bladder-related hypothetical the ALJ posed to the VE failed to include relevant limitations specific to her condition. Id.
The ALJ found that "[t]he medical records do not support a finding that the neurogenic bladder and self-catheterization would prevent the claimant from working provided she was not more than three to five minutes walking distance from a restroom." Tr. 26. The ALJ supported this finding by discounting Ms. Terry's assertion that she must self-catheterize every time she goes to the bathroom based on prior treatment notes. Id. The ALJ also found that Ms. Terry had only seen an urologist a number of times during the relevant period, "render[ing] her allegations regarding her bladder issues less persuasive." Id. While acknowledging that the medical records show that Ms. Terry had multiple urinary tract infections, the ALJ found that "the treatment records do not show that her related symptoms are as bad as she has alleged." Id. Specifically, the ALJ noted that her December 22, 2011, report of pain related to her urinary tract infection did not match the effect noted by her physician. Id.
In step five of the sequential process, an ALJ may pose hypothetical questions to a VE in order to determine whether employment opportunities exist in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work experience. Tr. 21. "[A] hypothetical question should 'set out all of the claimant's impairments.'" Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (internal citation omitted). "Unless the record indicates that the ALJ had specific and legitimate reasons for disbelieving a claimant's testimony as to subjective limitations such as pain, those limitations must be included in the hypothetical in order for the vocational expert's testimony to have any evidentiary value." Embrey, 849 F.2d at 423. "If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has residual working capacity has no evidentiary value." Gallant, 753 F.2d at 1456. Hypotheticals posed to a VE "must be upheld as long as they are supported by substantial evidence." Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986). An ALJ is not required to accept limitations posed by a claimant's counsel more restrictive that those suggested by the ALJ. Id.
During the hearing, the ALJ posed one question to the VE that specifically referenced Ms. Terry's neurogenic bladder. Tr. 93. Following a series of questions about Ms. Terry's other physical impairments, the ALJ added the limitation that "[w]ork tasks should not take the individual away more than three to five minutes from a restroom." Tr. 91-3. The VE answered that all the employment opportunities he had previously identified would provide close or approximate access to a restroom. Tr. 95.
There is no substantial evidence in the record to support the limitation posed by the ALJ. No medical expert opined about the necessary of being in close proximity to a restroom. Dr. McNab, the only opining physician to comment specifically about Ms. Terry's neurogenic bladder, wrote that Ms. Terry's condition would deteriorate "only if she can't self-catheterize with regularity" while working. Tr. 366 (emphasis in original).
Ms. Terry, as opposed to discussing the need to be proximate to a restroom, testified at length about the frequency of urination and the time-consuming process of self-catheterizing in a public restroom. Ms. Terry claimed that she self-catheterized "[e]very time I go to the bathroom." Tr. 51. She continued by stating that she went to the bathroom "[s]ix to eight times a day," id., and "[t]en to 12" when she had a urinary tract infection. Tr. 52. Ms. Terry stated that she had a urinary tract infection around four of every six weeks. Id. Ms. Terry testified that it takes her from ten to twelve minutes to go through the self-catheterization process in a public restroom. Tr. 83. When Ms. Terry's counsel asked the VE how being away from the workstation for twelve to fifteen minutes several times per day would impact a person's ability to sustain a job, the VE responded that such a person "would have a difficult time sustaining ongoing gainful employment" if absent beyond the provided break periods. Tr. 96. The VE specifically noted that "[m]ost employers would not tolerate that." Id. When asked if his answer would be the same if those occasions could not scheduled ahead of time, the VE responded that the result would be the same. Id.
The ALJ based his analysis of Ms. Terry's residual functional capacity concerning her neurogenic bladder around the limitation he posed to the VE concerning proximity to a restroom: namely whether jobs were available that could accommodate Ms. Terry being three to five minutes walking distance from a restroom. See Tr. 26. There is no evidence in the record that discusses Ms. Terry's neurogenic bladder as a proximity or urgency problem; it is instead always discussed as a frequency and time-consuming one. In fact, the only mention of the three to five minute window comes from the ALJ's own hypothetical to the VE. As the ALJ's hypothetical was not supported by the record, it has no evidentiary value. See Gallant, 753 F.2d at 1456. The ALJ framed his discussion of Ms. Terry's neurogenic bladder around the idea that substantial gainful employment is available so long as Ms. Terry could be within three to five minutes of a restroom. As this analysis is based primarily on limitations without an evidentiary basis in the record, the ALJ's finding is not supported by substantial evidence.
Further, the ALJ failed to include various relevant limitations in his hypothetical to the VE. While expressing doubt over Ms. Terry's claim that she must self-catheterize every time she goes to the restroom, the ALJ did not mention Ms. Terry's claims about the frequency with which she needs to urinate or the amount of time it takes to self-catheterize in a public restroom. See Reddick, 157 F.3d at 722-23 ("In essence, the ALJ developed his evidentiary basis by not fully accounting for the context of materials or all parts of the testimony and reports."). This is especially relevant as the VE testified that, were Ms. Terry away from her work station beyond scheduled breaks for as long as she claimed it took to self-catheterize, she would not be able to find gainful employment. Tr. 96. While the ALJ included some general statements about how some aspects of her testimony make her claims regarding bladder issues less persuasive, Tr. 26-27, he failed to make any findings specifically concerning the frequency of urination and how much time it takes to self-catheterize. See Orn, 495 F.3d at 635 ("[T]o discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide 'specific, cogent reasons for the disbelief.'") (internal citation omitted).
When considering the record as a whole, this Court finds that the ALJ analyzed Ms. Terry's neurogenic bladder impairment on a foundation which lacked substantial evidentiary support in the record. His conclusion highlighting proximity to a restroom, referenced neither by any medical expert nor by Ms. Terry in her testimony, misses the pertinent issues concerning Ms. Terry's neurogenic bladder: the frequency with which she must urinate and the amount of time it takes to self-catheterize in a public restroom.
IV. Remand for Immediate Award of Benefits
Ms. Terry urges that, should this Court find any reversible error in the ALJ's decision, the Court should remand for the immediate award of benefits. ECF No. 13 at 23. Based on the credit-as-true rule, the Court agrees and will remand for the calculation and award of benefits.
The ordinary remand rule applies to Social Security Cases. Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). As the Ninth Circuit has noted
If the reviewing court determines 'that the agency erred in some respect in reaching a decision to deny benefits,' and the error was not harmless, sentence four of § 405(g) authorizes the court to 'revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing . . . [W]hen the record before the agency does not support the agency action, . . . the agency has not considered all relevant factors, or . . . the reviewing court simply cannot evaluate theId. (internal citations omitted).
challenged agency action on the basis of the record before it, the proper course, except in rare cases, is to remand to the agency for additional investigation or explanation.
District courts have statutory authority "to reverse or modify an administrative decision without remanding the case for further proceedings." Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). The exercise of such authority "was intended to be discretionary." Id. The Ninth Circuit applies a three-step framework to "deduce whether this is one of the rare circumstances where we may decide not to remand for further proceedings." Treichler, 775 F.3d at 1103. This is referred to as the credit-as-true rule. Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). Under the first step, the Court must determine whether "the ALJ has failed to provide legally sufficient reasons for rejecting . . . claimant testimony." Treichler, 775 F.3d at 1103 (internal citation omitted). The Court concludes, for the reasons stated above, that the ALJ did not provide legally sufficient reasons for rejecting Ms. Terry's disability claim concerning her neurogenic bladder impairment.
Under the second step, the Court must "turn to the question [of] whether further administrative proceedings would be useful." Id. At this stage, the Court considers "whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether claimant's entitlement to benefits is clear under the applicable legal rules." Id. at 1103-04. Here, the only medical provider to opine on Ms. Terry's neurogenic bladder, Dr. McNab, wrote that Ms. Terry's condition would deteriorate "only if she can't self-catheterize with regularity" while working. Tr. 366 (emphasis in original). There was no testimony or evidence that conflicted with Ms. Terry's statements concerning how often she must urinate daily, the frequency of her urinary tract infections, or the amount of time it takes to self-catheterize in a public restroom. Finally, the VE testified that a person with the same bladder-related limitations as Ms. Terry would be unable to find substantial gainful employment in the national economy. Tr. 96. As there is no conflicting testimony concerning Ms. Terry's neurogenic bladder impairment, the Court finds that further administrative proceedings are unnecessary.
Under the third step, the Court must determine whether, "if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Garrison, 759 F.3d at 1020. When asked about an individual with Ms. Terry's bladder limitations, the VE responded that the individual "would have a difficult time sustaining ongoing gainful employment." Tr. 96. Accordingly, the Court finds that, were the ALJ to credit Ms. Terry's statements as true on remand, the ALJ would be required to find the claimant disabled at step five in the sequential process.
The Court finds that Ms. Terry satisfies all three conditions of the credit-as-true rule and that a careful review of the record discloses no reason to doubt that she is, in fact, disabled. Under Ninth Circuit precedent, a remand for the calculation and award of benefits is both appropriate and required.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's motion for summary judgment, ECF No. 13, is GRANTED.
2. Defendant's motion for summary judgment, ECF No. 15, is DENIED.
3. This case is REMANDED to the Commissioner for the immediate calculation and award of benefits.
4. JUDGMENT shall be entered for the Plaintiff.
The District Court Clerk is hereby directed to enter this Order, enter judgment accordingly, provide copies to counsel, and to close this file.
DATED this 9th day of October 2015.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
Chief United States District Court Judge