Opinion
CV-00-6045-ST
December 20, 2000
FINDINGS AND RECOMMENDATION
INTRODUCTION
Claimant, Lynnae Vinje ("Vinje"), brings this action pursuant to the Social Security 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. The sole issue in this case is whether the Commissioner's decision should be reversed to award benefits or instead should be remanded for further proceedings. For the reasons set forth below, the Commissioner's decision should be reversed and this case remanded for an award of benefits.
PROCEDURAL BACKGROUND
Vinje protectively filed an application for SSI disability benefits on September 23, 1996, alleging a disability beginning June 13, 1995, due to mental impairments, headaches, and incontinence. Tr. 102-05. Her application was denied initially and on reconsideration. Tr. 90-93, 96-98. She requested a hearing before an administrative law judge ("ALJ") which was held on June 17, 1998, in Eugene, Oregon. Tr. 58. Vinje, represented by counsel, appeared and testified, as did a vocational expert ("VE"). Tr. 58-76. On August 27, 1998, the ALJ issued a decision denying Vinje's application and finding her not disabled because even though she had severe impairments, she remained able to perform work which exists in significant numbers in the national economy. Tr. 22-38. The Appeals Council declined to review the ALJ's findings on February 4, 2000. Tr. 5-7. This decision by the Appeals Council is a final decision of the Commissioner, subject to review by this court. 20 C.F.R. § 404.981.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on May 31, 2000 (docket #9).
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 (the "Listings"). 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. Witness Testimony
Vinje was 46 years old on the date of the hearing and has completed high school and some college. Tr. 103, 61. She has no past relevant work, having last been employed over 15 years ago. Tr. 62. She has two children, aged five and ten, who live with her and she is supported by welfare and food stamps. Tr. 65-67. At the time of the hearing, Vinje had recently been evicted from her apartment and was living temporarily with her two children at First Place Family Center. Tr. 64.
Vinje's primary impairments involve migraine headaches, insomnia, and depression. As she explained somewhat incomprehensibly at the hearing:
[T]he migraine headaches I have about every two weeks or so. Sometimes once a week. It depends. And I can't sleep. And sometimes I get very sensitive or scared around people. And sometimes I get really, I mean quite a bit I'm depressed. So I need to be treated for that because it's pretty bad. Another thing is concern, when I try to concentrate on something. Well if I have to go do something else I forgot what I was going to do. And if I'm waiting I totally can't understand when I'm stressed out or depressed. And usually that's one or the other. That I'm involved with and I don't know why. But they, they think it's a chemical thing and I tried some medication, but it had side affects. So I'm waiting. It's funny to say, but I'm afraid to take the Prozac they're going to give me now. But I have pills. Because I'm scared of it right now. So I'm just waiting until I get enough guts to take that.
Tr. 62-63.
When asked by the ALJ what symptoms keep her from working, Vinje responded: "It's the headache. Well the main problem is the depression. And when I go to sleep, if I don't go to sleep I can't function in the morning. My brain isn't working." Tr. 68. She also reported feeling nervous in new situations and having to use the bathroom frequently. Id. The headaches occur once per week or once every two weeks. Tr. 69. She described them as:
just like being sick. I am in bed. I feel like throwing up. And I have to just sleep it off. No medication will help. So I asked my doctor if she could give me something for that and she said she has to treat me for depression. And it's part of depression. So I almost want to go back to her and get separate, separate sleeping pills and separate, what do you call it, headaches pills.
Id.
She has tried over the counter medications such as Aleve, Ibuprofen, and Tylenol, none of which work. Id. She also has taken Paxil and Zoloft. Tr. 63. While Paxil provided some relief, both medications induced unpleasant side affects. Id. At the time of the hearing, she was supposed to be taking Prozac but was waiting "until I think I can handle it." Id. In a normal day, Vinje may not sleep at all during the night or may get to sleep around 4:00 am. Tr. 63-64. She must get up in the morning to care for her two children, and then "I just muddle through the day." Tr. 64. Her daily activities consisted of taking care of her younger child, making meals, and traveling to the grocery store on foot or by bike. Tr. 66.
II. Medical Evidence
Vinje's medical history reveals little treatment of any sort. Primarily, the record before the ALJ and this court consists of various mental health evaluations conducted from 1996 to 1998. First, on August 20, 1996, Sharon L. Beickel, Ph.D., conducted a clinical interview with Vinje and administered the Minnesota Multiphasic Personality Inventory 2 ("MMPI-2") test. Tr. 172-80. Dr. Beickel ruled out a sleep disorder but concluded that Vinje suffered from an undifferentiated somatization disorder, depression, a generalized anxiety disorder, nicotine dependence and a histrionic personality disorder. Tr. 177-78.
Soon afterwards, on September 23, 1996, Vinje filed her application for SSI disability benefits alleging disability due to mental and emotional disorders. Tr. 102-07. In November 1996, Vinje completed a questionnaire concerning her daily living activities. Tr. 124-29. Vinje's friend, Joan Ac ("Ac"), also submitted information relating to Vinje's claim. Tr. 115-23. On January 2, 1997, a state agency physician, Bill Hennings, M.D., reviewed Dr. Beickel's evaluation and completed a Psychiatric Review Technique Form ("Psychiatric Review Form") and a Mental Residual Functional Capacity Form ("RFC Form"). Tr. 130-42. He concluded that Vinje had an affective disorder, an anxiety related disorder, and a personality disorder. Tr. 130. Despite the limitations involved with such a diagnosis, Dr. Hennings' RFC Form indicates that Vinje can:
Dr. Hennings actually concluded that Vinje satisfies the "A" paragraph criteria, but not the "B" paragraph criteria, for Listings 12.04 ("Affective Disorders"); 12.06 ("Anxiety Related Disorders"); and 12.08 ("Personality Disorders"). Tr. 134-35, 137.
understand, remember and carry out simple/detailed instructions. Although her variability may limit complex detailed work activities she is able to persist in tasks for at least 2 hours and does not require special supervision. Motivation may contribute to occasional problems in sustaining work but would not limit her from simple routine tasks that could be performed independently without frequent interaction with coworkers/general public, she may be distractive to co-workers, but may be responsive to vocational goals. She will benefit from guidance in setting realistic redirection.
Tr. 139-42
Over two months later, on March 19, 1997, a second non-examining State Agency psychologist, Dick Wimmers, Ph.D., reviewed Dr. Beickel's evaluation and completed both a Psychiatric Review Form and a RFC Form. Tr. 150-65. Dr. Wimmers assessed Vinje as suffering from an affective disorder and a personality disorder. Tr. 160-62. He found Vinje to be only moderately limited in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, interact appropriately with the general public, and set realistic goals. Tr. 150-51.
Dr. Wimmers' Psychiatric Review Form indicates that Vinje meets the "A" paragraph criteria, but not the "B" paragraph criteria, for Listings 12.04 ("Affective Disorders") and 12.08 ("Personality Disorders"). Tr. 160-61, 164.
On December 16, 1997, Vinje saw Linda Church, M.D., "primarily for her headaches but her other complaints include two year history of depression, fatigue, insomnia, difficulty staying asleep and getting to sleep, with a past history of recurrent anxiety and panic attacks." Tr. 186. Vinje reported that her headaches had become more frequent and sometimes caused nausea. Id. Dr. Church noted that Tavist-D was recently found to help with Vinje's headaches and she thought Vinje's symptoms, including the headaches, might be due to an underlying state of depression. Id. She recommended a trial of Paxil and another appointment in several weeks. Id. Vinje's next saw Dr. Church on January 20, 1998, for PAP and pelvic exams and complaints of cramping. Tr. 184. Dr. Church noted that Vinje had not yet started taking the Paxil and again suspected depression. Id. On April 14, 1998, Dr. Church again saw Vinje and reported that she had stopped taking the Paxil after two weeks because it bothered her. Tr. 185. Dr. Church noted that though Vinje seemed anxious, she did not appear depressed and recommended Zoloft. Id.
On June 11, 1998, Dr. Beickel examined Vinje for a second time. Tr. 193-200. Vinje reported that she had been evicted from her home and was taking her children to live in a tent in the country. Tr. 194. She also reported headaches once every two weeks that lasted two to three days. Tr. 196. Dr. Beickel diagnosed Vinje with a somatization disorder, major recurrent depression, a bipolar disorder, an anxiety disorder with features of panic, obsessive-compulsive and social phobia, and a personality disorder with features of histrionic, dependent, avoidant, obsessive-compulsive and passive-aggressive features. Tr. 199. She summarized by commenting that Vinje has a dependant lifestyle and wanted to be a homemaker but did not have anyone to support her. Tr. 200. She found Vinje unskilled and "overall quite an ineffective person due to her personality style of relating to self and others." Id. She also thought that Vinje needed to take an antidepressant and/or sleep aid and would not benefit from counseling. Id.
Because she had poor work attitudes and was homeless, "it will be difficult for her to adequately groom herself to present herself for most work other than work in the fields, picking fruit, or the like." Id.
On November 7, 1998, over two months after the ALJ made his decision in this matter, Dr. Beickel completed a Psychiatric Review Form and a RFC Form. Tr. 209-20. In the first, she indicated that starting in June 1995, Vinje met both the "A" and "B" paragraph criteria for Listings 12.04 ("Affective Disorders") and 12.06 ("Anxiety Related Disorders"). Tr. 209. In the RFC Form, Dr. Beickel indicated that Vinje had "marked" limitations in her ability to carry out detailed instructions; maintain attention and concentration; perform activities within a schedule, maintain regular attendance and be punctual; work in coordination with or proximity to others without being distracted; complete a normal workday and workweek without interruptions; and to set realistic goals or make plans independently of others. Tr. 219-20.
III. Vocational Evidence
The VE first agreed with the ALJ that Vinje did not have any relevant past work. Tr. 80. Next, the VE considered a hypothetical 46-year old individual with a high school education plus some additional training with no relevant work experience who has moderate limitations with following detailed instructions and tolerating close supervision, and who needs to have only brief superficial contact with the public. Tr. 80-81. The VE reported that such an individual could perform work such as entry level parking lot cashier or office cleaner. Tr. 81.
Though he did not explicitly point to the state agency examining doctors, the ALJ's limitations are consistent with their findings, particularly those of Dr. Wimmers.
Upon questioning by Vinje's counsel, the VE opined that if a hypothetical employee in these professions missed two days of work per month, he or she might not be employed for long, depending on the circumstances of the absences and the expectations of the employer. Tr. 85-86.
The VE stated that "once a week wouldn't make her uncompetitive. Okay. Once every two weeks you're getting into certain a problematic situation that I still think that would fit within generally one to two times a month." Tr. 85. Though not entirely clear, the import of the VE's statement seems to be that missing one day of work per month would be acceptable while missing two days of work per month would be more "problematic."
ALJ'S DECISION
The ALJ first determined that Vinje has not been engaged in any substantial gainful activity since the alleged disability onset date and suffers from "severe" impairments established by objective medical evidence in the record. Tr. 27, 29. These include a somatization disorder, a history of depression, a history of anxiety, a histrionic personality disorder with features of dependence, avoidance, obsessive compulsion and passivity, as well as a history of headaches. Id. The ALJ found, however, that these impairments, individually and in combination, failed to meet or equal any of the Listings. Id.
Next, the ALJ analyzed Vinje's residual functional capacity ("RFC"), which describes the range of work activities that a claimant can perform despite her impairments. He concluded that Vinje's own representation of her disability was not fully credible. Tr. 30. Instead, the ALJ found that Vinje has moderate limitations following detailed instruction, tolerating supervision, interacting appropriately with the public, and does best with brief superficial contact with others, including co-workers. Id.
Based on Vinje's RFC, age, and education, the ALJ found that she should be able to adjust to other work that exists in significant numbers in the national economy, namely as a parking lot cashier and office cleaner. Tr. 31. Accordingly, the ALJ found Vinje not disabled and not eligible to receive benefits. Id.
DISCUSSION
Vinje argues that this court should reverse and remand for an award of benefits because: (1) the Appeals Council improperly rejected Dr. Beickel's November 7, 1998 evaluation; (2) the ALJ improperly rejected the opinions of Drs. Hennings and Wimmers; and (3) the ALJ's hypothetical to the VE was legally inadequate.
The Commissioner agrees that this case should be reversed but argues that the appropriate remedy is a remand for further proceedings to enable the ALJ to review Dr. Beickel's November 7, 1998, evaluation and the reports by Drs. Hennings and Wimmers. Thus, the sole point of contention between the parties is whether the remand should be for further administrative proceedings or the payment of benefits. In order to resolve that difference of opinion, this court begins its analysis with the Appeals Council decision.
I. Appeals Council Decision
Vinje submitted Dr. Beickel's November 7, 1998, evaluation to the Appeals Council for review. Where new and material evidence is submitted to the Appeals Council with the request for review, the Appeals Council will evaluate the entire record. 20 C.F.R. § 404.970. If the Appeals Council finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence then it will grant a full review of the ALJ's decision. Id. Here, the Appeals Council considered Dr. Beickel's November 7, 1998, evaluation but denied Vinje's request for review because: "Dr. Beickel's opinions . . . are inconsistent with her August 20, 1996 and June 11, 1998 examination findings . . . as well as the evidence as a whole. Further, whether your impairments are severe enough to meet a medical listing and determination of your residual functional capacity are issues reserved to the Commissioner." Tr. 5-6.
Relying on Ramirez v. Shalala, 8 F.3d 1449 (9th Cir 1993), Vinje argues that the Appeals Council decision is a decision by the Commissioner, just as the ALJ decision is a decision by the Commissioner, and that both the Appeals Council and the ALJ should be held to the same standard when rejecting an examining physician's opinions. If this court applies such a standard to the Appeals Council, then its decision is legally inadequate.
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). The opinion of an examining physician is 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.
Although the Commissioner agrees that the Appeals Council erred, he does not agree that the same standard should be applied to both the Appeals Council's decision and the ALJ's decision. However, this court need not resolve whether the Appeals Council erred by not applying the same standard as the ALJ since the only issue is the appropriate remedy.
A. Legal Standard
Ordinarily, the decision whether to remand for further proceedings or simply to award benefits is within the court's discretion. Ramirez, 8 F.3d at 1455; Reddick v. Chater 157 F.3d 715, 728 (9th Cir 1998). Remand for an award of benefits is required only where the record is complete and no outstanding issues must be resolved before a proper disability decision can be made. Id. Courts generally award benefits "when no useful purpose would be served by further administrative proceedings" or "when the record has been fully developed and there is not sufficient evidence to support the ALJ's conclusion. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir 1989) citing Kornock v. Harris, 648 F.2d 525, 527 (9th Cir 1985) Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir 1986). "Remand is appropriate `where additional administrative proceedings could remedy defects;' but where remand would only delay the receipt of benefits, judgment for the claimant is appropriate." Id, quoting Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir 1985).
B. Analysis
Given that the parties agree that the Appeals Council erred in its consideration of Dr. Beickel's November 7, 1998, evaluation, this court must decide what weight that evaluation merits. Ramirez is instructive in that regard. In Ramirez, after the ALJ denied the claimant's application for benefits, the claimant submitted to the Appeals Council an additional report from his treating psychologist. The Appeals Council considered that report but ultimately declined to review the ALJ decision. After concluding that both the ALJ and the Appeals Council erred in improperly disregarding the claimant's treating psychologist's opinion, the Ninth Circuit examined the full record, "including the supplemental material submitted to the Appeals Council." Ramirez, 8 F.3d at 1454. After discussing the evidence ignored by both the ALJ and the Appeals Council concerning Listing 12.04 and the supplemental material not before the ALJ, the Ninth Circuit found that "the Appeals Council erred in failing to find that Ramirez met the requirements for diagnosis 12.04." Id.
Given that the parties agree that the Appeals Council erred, this court thus must examine the full record, including the supplemental material. Contrary to the Commissioner's views, the record reveals that Vinje satisfies the criteria for Listings 12.04 and 12.06 and is presumptively disabled.
1. Listings 12.04 and 12.06
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.
a. Paragraph A Criteria
In this case, the record contains overwhelming support for a finding that Vinje satisfies the paragraph "A" criteria for both Listings 12.04 and 12.06. Dr. Hennings, the non-examining state agency psychologist, reviewed Dr. Beickel's first evaluation and completed a Psychiatric Review Form indicating that Vinje satisfied the paragraph "A" criteria of Listings 12.04 ("Affective Disorders"), 12.06 ("Anxiety Related Disorders"); and 12.08 ("Personality Disorders"). Tr. 133-35. Two months later, Dr. Wimmers, a second non-examining state agency psychologist, also reviewed Dr. Beickel's first evaluation and completed a Psychiatric Review Form indicating that Vinje met the paragraph "A" criteria for Listings 12.04 and 12.08. Tr. 160-62. Over a year later, the ALJ himself completed a Psychiatric Review Form to determine whether Vinje satisfied any of the Listings. Tr. 34-38. He found that that she met the paragraph "A" criteria for Listings 12.04, 12.06, 12.07 ("Somatoform Disorders"), and 12.08. Tr. 34-37. Lastly, several months after the ALJ decision, Dr. Beickel completed a Psychiatric Review Form indicating that Vinje satisfied the paragraph "A" criteria for Listings 12.04 and 12.06. Tr. 212-13.
The record reveals little or no evidence sufficient to counter a conclusion that Vinje satisfies the paragraph "A" criteria for Listings 12.04 and 12.06. The ALJ certainly did not point to any, and, in fact, also concluded that Vinje satisfied the paragraph "A" criteria. This court has scoured the record and is also unable to locate any significant contrary evidence. Thus, it is clear that Vinje satisfies the criteria for paragraph "A" for Listings 12.04 and 12.06.
b. Paragraph B Criteria
The record is not as clear with regard to the paragraph "B" criteria. The two non-examining state agency psychologists and the ALJ concluded that Vinje did not demonstrate sufficiently severe functional restrictions to satisfy the paragraph "B" criteria for Listings 12.04 and 12.06. The Psychiatric Review Forms completed by all three indicated that Vinje suffers from "moderate" difficulties in social functioning and "often" had deficiencies of concentration. See Tr. 137, 164, 38. These findings are one degree short of those necessary to meet Listings 12.04 and 12.06.
The claimant must satisfy two of the four "Degree of Limitation"categories found in the Psychiatric Review Form in order to meet Listings 12.04 and 12.06. See e.g., Tr. 137. Here, in order to meet the Listings, Vinje must have had "marked" difficulties in social functioning and "frequent" deficiencies of concentration.
Dr. Beickel's Psychiatric Review Form, however, conflicts with these conclusions. According to her, Vinje suffers from "marked" difficulties in maintaining social functioning and has "frequent" difficulties in maintaining concentration, persistence or pace. See Tr. 216. Thus, according to Dr. Beickel, Vinje satisfies the paragraph "B" criteria for Listings 12.04 and 12.06. Dr. Beickel's evaluation is entitled to more weight for a variety of reasons, and it is her opinion that should be credited.
First, while Dr. Beickel did not treat Vinje, she did evaluate her twice during the relevant period of time. In contrast, Drs. Hennings and Wimmers never met Vinje, and instead based their opinions solely on a review of Dr. Beickel's first evaluation. The ALJ, who does not claim to be a medical expert, did not clarify the basis for his Psychiatric Review Form. Presumably he relied on the forms completed by Drs. Hennings and Wimmers since his Psychiatric Review Form is nearly identical to their forms. Thus, Dr. Beickel is the only examining doctor in this case and the source of all of the relevant medical information.
Second, Dr. Beickel's Psychiatric Review Form is based on a great deal of testing, including the MMPI-2 test; the Quick Test; the Shipley Institute of Living Scale; the Wide Range Achievement Test-3v; the Trail Making Test; and the Beck Depression Inventory. Tr. 193. The state agency doctors, however, based their opinions on Dr. Beickel's August 20, 1996, clinical interview with Vinje in which she administered only the MMPI-2 test. Tr. 172-80.
Third, Dr. Beickel's Psychiatric Review Form found that Vinje suffers from "marked" difficulties in maintaining social functioning and "frequent" difficulties in maintaining concentration, persistence or pace. These findings are consistent with both her August 20, 1996 and June 11, 1998 evaluations. For example, in 1996, Dr. Beickel found that Vinje's "concentration for tasks was variable and she appeared somewhat scattered," that she "tends to be shy and introverted and will avoid interpersonal relationships," and that she "has a number of attitudes and feelings that could interfere with work adjustment." Tr. 175, 177. In 1998, Dr. Beickel found that Vinje "has a great deal of fearfulness around others," has "many clinical symptoms indicating clinical depression," and "has anxiety at times to the point she becomes breathless and panicky." Tr. 196.
The Commissioner points to specific "inconsistencies" in the evidence, such as Dr. Beickel's opinion in 1998 that Vinje could work as an agricultural laborer. However, this court generally reviews only the reasoning of the ALJ and the Appeals Council, not the later arguments presented by their attorneys. See e.g., Barbato v. Commissioner of Social Sec. Admin., 923 F. Supp. 1273, 1276 (CD Cal 1996) ("the Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council"). In any event, Dr. Beickel did not opine that Vinje could work as an agricultural laborer. Instead, she commented that because Vinje was homeless, "it will be difficult for her to adequately groom herself to present herself for most work other than work in the fields, picking fruit, or the like." Tr. 200. This was a comment on Vinje's appearance, not on her ability to work.
Lastly, the conflict between the Psychiatric Review Forms in this case is only a matter of degree. Given the relatively small difference of opinion, it simply makes sense to credit the opinion of the only examining doctor of record, rather than opinions of nonexamining doctors who based their opinions on the examining doctor's findings. Although the Commissioner points out that the Ninth Circuit disfavors opinions of disability without supporting rationale and that Dr. Beickel's Psychiatric Review Form contains very little commentary, it is in fact well-supported by Dr. Beickel's extensive and exhaustive series of earlier evaluations. While medical opinions solicited after the claimant was denied benefits are "all the less persuasive," Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir 1989), here the record reveals no significant contradictory evidence. Instead, Dr. Beickel's November 11, 1998 Psychiatric Review Form is consistent with both of her evaluations of Vinje and is based on extensive credible objective testing results. Therefore, the undeniable clear weight of evidence in the record demonstrates that Vinje satisfies the paragraph "B" criteria for Listings 12.04 and 12.06.
2. Remedy
Having determined that the record fully supports a finding that Vinje satisfies the paragraph "A" and "B" criteria Listings 12.04 and 12.06, and thus is presumptively disabled, this court must address the appropriate remedy.
Notably, while various courts have held that where the ALJ has failed to give adequate reasons for rejecting a physician's opinions, those opinions must be credited, see e.g., Lester, 81 F.3d at 834, the Ninth Circuit has explained that crucial evidence not before the ALJ, but presented only to the Appeals Council, is a reason to remand to the ALJ:
while we properly may consider the additional evidence presented to the Appeals Council . . . it is another matter to hold on the basis of evidence that the ALJ has had no opportunity to evaluate that Appellant is entitled to benefits as a matter of law. The appropriate remedy in this situation is to remand this case to the ALJ; the ALJ may then consider, the Commissioner then may seek to rebut, and the VE may then answer questions with respect to the additional evidence.
Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir 2000); see also Barbato, 923 F. Supp. at 1278 (the court reversed and remanded for further proceedings at least in part because "[t]he ALJ did not have an opportunity to evaluate the post-decisional report").
In this case, however, a remand to the ALJ would serve no purpose. Unlike the cases cited above, the ALJ need not create a new RFC or solicit additional VE testimony. Given the evidence in the record, the ALJ could not reasonably disregard or discount Dr. Beickel's November 7, 1998 Psychiatric Review Form. Based on the clear weight of the evidence, the ALJ would have no option but to find that Vinje satisfies the criteria for Listings 12.04 and 12.06.
As in Ramirez, this court is capable of making that disability determination based on a complete record. After determining that the Commissioner had erred and that the claimant satisfied the criteria for Listing 12.04, the Ninth Circuit determined that it would award benefits, explaining that:The Appeals Council could have remanded for a further hearing so
that the ALJ could consider Ramirez's eligibility for benefits under diagnosis 12.04, or so that he could take further evidence. It chose not to do so. Instead, it treated the record as complete. We agree. Ordinarily, we may either "remand [a] case for additional evidence or simply . . . award benefits." Varney v. Secretary of Health and Human Servs., 859 F.2d 1396, 1399 (9th Cir 1988) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir 1985)). Where the record is complete, however, we award benefits to the claimant. Id (citing Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir 1986)). Here, the record establishes that Ramirez exhibited the symptoms of a person suffering the required signs of diagnosis 12.04 in the required degree of duration and severity. There is no substantial evidence to the contrary. The Appeals Council therefore erred in failing to overturn the ALJ's decision and award benefits to Ramirez. Accordingly, we reverse the Secretary's decision.
Ramirez, 8 F.3d at 1455.
Here, the Appeals Council similarly could have remanded the case to the ALJ to examine Dr. Beickel's November 7, 1998 evaluation. As in Ramirez, it chose not to do so and instead treated the record as complete. Therefore, this court also will treat the record as complete, and, having considered the evidence as a whole, including Dr. Beickel's November 7, 1998 Psychiatric Review Form, finds that the evidence demonstrates that Vinje is disabled by virtue of Listings 12.04 and 12.06. "There is no substantial evidence to the contrary." Id. Thus, this case should be reversed and remanded for an award of benefits.
II. Remaining Issues
Based on this court's recommendation with respect to Dr. Beickel's November 7, 1998 evaluation, this court need not address Vinje's remaining arguments.
RECOMMENDATION
For the reasons set forth above, the Commissioner's decision should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for an award of benefits. Objections to the Findings and Recommendation, if any, are due January 8, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than January 23, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.