The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
H. A.,1 3:19-cv-00002-BR
Plaintiff, OPINION AND ORDER
v.
Commissioner, Social Security
Administration,
Defendant.
GEORGE J. WALL
CAITLIN S. LAUMAKER
Law Offices of George J. Wall
825 N.E. 20th Ave
Suite 330
Portland, OR 97232
(503) 236-0068
Attorneys for Plaintiff
1 Generally in the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
the uses only the first name and the initial of the last name of
the nongovernmental parties. In this case, however, due to the
unique nature of Plaintiff’s first name, the Court uses the first
initial of Plaintiff’s first and last names.
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BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1021
MICHAEL W. PILE
Acting Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-3710
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff H. A. seeks judicial review of a final decision of
the Commissioner of the Social Security Administration (SSA) in
which he denied Plaintiff's application for Supplemental Security
Income (SSI) under Title XVI of the Social Security Act. This
Court has jurisdiction to review the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter for the immediate
calculation and payment of benefits pursuant to sentence four of
42 U.S.C. § 405(g).
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on July 30, 2015, and
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alleged a disability onset date of March 1, 2015. Tr. 58.2 Her
application was denied initially and on reconsideration. An
Administrative Law Judge (ALJ) held a hearing on September 14,
2017. Tr. 41-57. Plaintiff and a vocational expert (VE)
testified at the hearing. Plaintiff was represented by an
attorney and had an interpreter for the proceeding.
On December 26, 2017, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 17-36. On November 13, 2018, that decision
became the final decision of the Commissioner when the Appeals
Council denied Plaintiff's request for review. Tr. 1-8. See
Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on April 6, 1979, and was 38 years old at
the time of the hearing. Tr. 58. Plaintiff has a college
degree. Tr. 45-46. Plaintiff does not have any past relevant
work. Tr. 35.
Plaintiff alleges disability due to post-traumatic stress
disorder (PTSD), depression, arthritis of the hands, and fatigue.
Tr. 58.
Except when noted, Plaintiff does not challenge the ALJ’s
2 Citations to the official transcript of record filed by
the Commissioner on May 10, 2019, are referred to as "Tr."
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summary of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence. See Tr. 23-29.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012). To meet this burden a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months." 42 U.S.C.
§ 423(d)(1)(A). The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11
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(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)). It is more than a mere scintilla [of evidence]
but less than a preponderance. Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009). The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision. Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I. The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
2007). See also 20 C.F.R. § 416.920. Each step is potentially
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dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm’r of
Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commis-
sioner determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R.
§ 416.920(c). See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity. 20
C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724.
The criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s Residual Functional Capacity (RFC). The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations. 20 C.F.R.
§ 416.945(a). See also Social Security Ruling (SSR) 96-8p. “A
'regular and continuing basis' means 8 hours a day, for 5 days a
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week, or an equivalent schedule." SSR 96-8p, at *1. In other
words, the Social Security Act does not require complete
incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also
Keyser, 648 F.3d at 724. Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform. Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2. If the Commissioner meets this burden, the claimant
is not disabled. 20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
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in substantial gainful activity since her July 30, 2015, alleged
onset date. Tr. 19.
At Step Two the ALJ found Plaintiff has the severe
impairments of inflammatory arthritis; “somatic dysfunction of
thoracic region, status post resection of benign deep soft tissue
mass in the left anterior hip region”; depression; and PTSD.
Tr. 19.
At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff
has the RFC to perform light work “except she is limited to
simple, routine, repetitive tasks and simple work-related
decisions [and] can have occasional public and coworker
interaction.” Tr. 22.
At Step Four the ALJ found Plaintiff does not have any past
relevant work. Tr. 29.
At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy. Tr. 29.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed “to
include manipulative limitations in [Plaintiff’s RFC] caused by
inflammatory arthritis in both hands”; (2) improperly rejected
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the opinion of Malika Burman, M.D., Plaintiff’s treating
psychiatrist; (3) improperly gave little weight to the opinion of
Dalia Baadarani, Ph.D., QMPH,3 Plaintiff’s treating mental-health
professional and (4) improperly found at Step Five that Plaintiff
could perform other jobs that exist in the national economy.
I. The ALJ did not err when he did not include manipulative
limitations in Plaintiff’s RFC.
Plaintiff alleges the ALJ erred when he failed “to include
manipulative limitations in [Plaintiff’s RFC] caused by
inflammatory arthritis in both hands.”
The ALJ found at Step Two that Plaintiff had the severe
impairment of inflammatory arthritis, but he found at Step Three
that Plaintiff did not require special accommodations for the use
of her hands. Lab tests conducted on April 21, 2015, “revealed
unremarkable CBC . . . and “[a]nti-CCP antibodies and rheumatoid
factor negative.” Tr. 408. In addition, Peter Bonafede, M.D.,
one of Plaintiff’s treating physicians, noted x-rays of
Plaintiff’s hands were “normal.” Tr. 408. Similarly, on March
31, 2016, Dr. Bonafede examined Plaintiff and found she had
“seronegative rheumatoid arthritis with ongoing symptoms and mild
3 The record reflects Lutheran Community Services Northwest
identified Dr. Baadarani as a Qualified Mental Health
Professional (QMHP) in counseling notes from 2015 and 2016. At
some point in 2017, however, the record reflects Dr. Baadarani
received her Doctor of Philosophy degree. The Court, therefore,
refers to Dr. Baadarani with her highest professional title in
this Opinion and Order.
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findings.” Tr. 419. On June 2, 2017, Dr. Bonafede noted
Plaintiff had “seronegative rheumatoid arthritis with mild
findings.” Tr. 431. Reviewing physician Lloyd Wiggins, M.D.,
found Plaintiff had a “mild [history] of arthritis,” but he
concluded Plaintiff could perform light work. Tr. 62.
The Court concludes on this record that the ALJ did not err
when he did not “include manipulative limitations in [Plaintiff’s
RFC] caused by inflammatory arthritis in both hands” because he
provided clear and convincing reasons supported by substantial
evidence in the record for doing so.
II. The ALJ erred when he rejected Dr. Burman’s opinion.
Plaintiff asserts the ALJ erred when he rejected the opinion
of Dr. Burman, Plaintiff’s treating psychiatrist.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002). When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give “clear
and convincing reasons” for rejecting it. Thomas, 278 F.3d at
957. See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.
1996).
On May 3, 2016, Dr. Burman submitted a letter in which she
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stated Plaintiff “has been severely ill due to PTSD for over 2
years.” Tr. 356. Dr. Burman noted Plaintiff “bore witness to
life threatening violence against her and against her family
members while living in Iraq,” and since she arrived in the
United States she “has been experiencing severe post traumatic
anxiety including flashbacks, panic attacks, insomnia,
hypervigilance, intense feelings of fear lasting all day, as well
as grief due to the loss of extended family members.” Tr. 356.
Dr. Burman stated Plaintiff
has great difficulty leaving her house, is easily
triggered by loud noises which then leads to panic
attacks. She has recurrent, involuntary, and
intrusive distressing memories of traumatic
events, including nightmares which prevent her
from sleep. She has great difficulty maintaining
her activities of daily functioning, namely caring
for herself and managing her symptoms. She also
has resultant memory loss, poor concentration,
hypervigilence as a result of her surviving war
and separation from her homeland. With her
current symptom profile and severity of
psychological damage endured, she is not safe to
work outside the home or pursue any employment in
society.
Tr. 356. Dr. Berman noted “on exam[ination] [Plaintiff] is
cooperative, appropriate and polite, however has difficulty
maintaining eye contact, does not smile, is tearful, and feels
hopeless about ever feeling better. She is severely anxious, at
times depressed, and has a very poor prognosis due to the
severity of atrocities witnessed as well as chronicity and
persistence of severe symptoms.” Tr. 356.
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The ALJ rejected Dr. Burman’s opinion on the ground that it
“is not fully consistent with the evidence of record, including
her own treatment notes.” Tr. 33. The ALJ pointed out that
Dr. Berman’s treatment note from May 3, 2016, indicated Plaintiff
made good eye contact, she was well groomed, her speech and
behavior were normal, and she was cooperative. Tr. 354-55. For
that same visit, however, Dr. Berman also noted Plaintiff had
“symptoms of PTSD that are largely unmitigated by one SSRI [and
her] insomnia is intractable to Seroquel.” Tr. 355. In
addition, Dr. Berman’s treatment notes reflect on other visits
that Plaintiff had “adequate hygiene” and “constricted affect.”
Tr. 351. Plaintiff continually reported insomnia, “intense daily
fear and flashback memories with hypervigilence and avoidance.”
Tr. 350-51.
In addition, the record is replete with reports that
Plaintiff continued to suffer from PTSD and anxiety. For
example, on April 21, 2015, Dr. Bonafede noted Plaintiff’s skin
was “warm and dry other than some perspiration with anxiety.”
Tr. 398. In May 2015 Plaintiff reported to Yana Little, M.D.,
examining physician, that she suffered from anxiety “from
situation and trauma witnesses in Iraq” and that she could not
sleep at night. Tr. 296. In June 2015 Plaintiff was seen by
Brenda Ann Olson, M.D., to “follow up [about her] depression and
poor sleep.” Tr. 291. Dr. Olson reported Plaintiff was “well
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groomed,” but she had “poor eye contact . . . [and] continued
flat affect.” Tr. 292. In July 2015 Dr. Olson noted Plaintiff
had “poor eye contact and flat affect, will engage in some
conversations, [but is] guarded, patient follows linear
conversation, [but] does not appear to be responding to external
stimuli.” Tr. 287. In August 2015 Dr. Baadarani noted Plaintiff
experienced traumatic events in Iraq including being in a taxi
when “young men . . . opened fire on [her] car,” witnessing “the
torture and killings of civilians on the streets,” the
“kidnapping of her brother . . . and bombings.” Tr. 260. As a
result, Plaintiff suffered PTSD symptoms including traumatic
nightmares, flashbacks, problems in concentration, and sleep
disturbances. Tr. 260. In November 2015 Plaintiff underwent a
pyschodiagnostic evaluation conducted by Kimberly Goodale,
Psy.D., who reported Plaintiff “engaged in no eye contact . . .
throughout the evaluation” and had a “notably flat” affect “with
no emotional expression.” Tr. 314. Plaintiff exhibited “some
psychomotor slowing, consistent with depressive symptoms” as well
as “difficulties with memories and forgetfulness.” Tr. 314.
Dr. Goodale concluded Plaintiff’s “presentation and performance
suggest problems with attention and concentration, reduced memory
capacity, lapses orientation to time and surroundings, difficulty
following clear and simple instructions, and writing
difficulties.” Tr. 315.
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Although Plaintiff experienced some improvement in her
conditions in December 2015 and January 2016, Plaintiff reported
to Dr. Baadarani in February 2016 “on the edge of tearfulness
[with] a depressed facial expression and disposition.” Tr. 330.
In March 2016 Plaintiff reported “traumatic memories from the
past keep resurfacing,” and she continued to suffer from poor
sleep. Tr. 327. In October 2016 Plaintiff continued to suffer
from nightmares and poor sleep. Tr. 348.
On this record the Court concludes the ALJ erred when he
rejected Dr. Burman’s opinion as to Plaintiff’s mental condition
because he did not provide legally sufficient reasons supported
by substantial evidence in the record for doing so.
III. The ALJ erred when he gave “little weight” to
Dr. Baadarani’s opinion.
Plaintiff asserts the ALJ erred when he gave little weight
to Dr. Baadarani’s July 2017 Mental Residual Functional Capacity
Assessment (MFRC) of Plaintiff.
Medical sources are divided into two categories:
"acceptable" and "not acceptable." 20 C.F.R. § 416.902.
Acceptable medical sources include licensed physicians and
psychologists. 20 C.F.R. § 416.902. Medical sources classified
as "not acceptable" include, but are not limited to, nurse
practitioners, therapists, licensed clinical social workers, and
chiropractors. SSR 06-03p, at *2. Factors the ALJ should
consider when determining the weight to give an opinion from “not
14 - OPINION AND ORDER
acceptable” medical sources include the length of time the source
has known the claimant and the number of times and frequency that
the source has seen the claimant, the consistency of the source's
opinion with other evidence in the record, the relevance of the
source's opinion, the quality of the source's explanation of his
opinion, and the source's training and expertise. SSR 06-03p, at
*4. On the basis of the particular facts and the above factors,
the ALJ may assign a not-acceptable medical source either greater
or lesser weight than that of an acceptable medical source. SSR
06-03p, at *5-6. The ALJ, however, must explain the weight
assigned to such sources to the extent that a claimant or
subsequent reviewer may follow the ALJ's reasoning. SSR 06-03p,
at *6.
Dr. Baadarani noted in her July 2017 MFRC of Plaintiff that
Plaintiff had moderate-to-extreme difficulties in every area
associated with her ability to understand, to remember, or to
apply information; to interact with others; to concentrate, to
persist, or to maintain pace; and to adapt. Tr. 696-98.
Dr. Baadarani noted Plaintiff suffers from “high levels of
anxiety [that] caus[e] forgetfulness, confusion, and difficulty
concentrating on daily activities”; has difficulty forming or
developing new relationships; “lacks control over her emotions
and behaviors”; and “experiences symptoms of depression and
anxiety that hinder her ability to function normally.” Tr. 697-
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98.
The ALJ gave little weight to Dr. Baadarani’s July 2017 MFRC
on the ground that it was “not fully supported by the medical
record.” Tr. 32. The ALJ noted Dr. Baadarani’s
counseling notes primarily document [Plaintiff’s]
struggles to overcome culture shock. They show
[Plaintiff’s] anxiety is driven in part by these
situational stressors rather than some internal,
unmalleable force impervious to improvement.
Tr. 32. The ALJ also stated Dr. Baadarani’s treatment notes “do
not suggest [Plaintiff’s] anxiety is particularly crippling,” and
Plaintiff also reported in December 2015 that she enjoyed her ESL
class and had made some friends in her ESL class. Tr. 32. The
record, however, reflects Plaintiff experienced several tramautic
events in Iraq and, as a result, suffered traumatic nightmares,
flashbacks, problems in concentration, and sleep disturbances
that were not improved with medication or therapy. Although
Dr. Baadarani made one or two references to culture shock in her
treatment notes, the vast majority of the notes for two years
refer to debilitating PTSD as a result of events in Iraq and
other events in Plaintiff’s life.
On this record the Court concludes the ALJ erred when he
rejected Dr. Baadarani’s opinion because he did not provide
legally sufficient reasons supported by substantial evidence in
the record for doing so.
16 - OPINION AND ORDER
IV. The ALJ erred at Step Five when he found Plaintiff could
perform other jobs that exist in the national economy.
Plaintiff asserts the ALJ erred at Step Five when he
identified other jobs in the national economy that Plaintiff
could perform because those jobs would require Plaintiff to speak
and to understand English.
Plaintiff testified at the hearing through a translator that
she does not understand English except for a “few words.”
Tr. 47. Although the ALJ found Plaintiff “is unable to
communicate in English,” the ALJ, nevertheless, concluded
Plaintiff could perform other jobs that exist in the national
economy as a small-products assembler, laundry folder, and/or
production assembler. Tr. 35-36. Each job identified by the ALJ
has a general educational development (GED) language level of at
least one. Tr. 36, 54-55. According to the Dictionary of
Occupational Titles (DOT), a reasoning level of one requires the
ability: to “read at a rate of 95 – 120 words per minute”; to
“[p]rint simple sentences containing subject, verb, and object,
and series of numbers, names, and addresses”; and to “speak
simple sentences, using normal word order, and present and past
tenses.” U.S. Dep’t of Labor, Dictionary of Occupational Titles,
§ App. C (U.S. Emp. Serv., 4th ed. rev. 1991). The record does
not support a finding that Plaintiff has any of those required
skills in English. Although Defendant asserts the ALJ relied on
the VE’s testimony in reaching his conclusion about Plaintiff’s
17 - OPINION AND ORDER
ability to do other jobs in the national economy, the VE stated
at the hearing that Plaintiff’s inability to communicate in
English did “not factor into [his] answers.” Tr. 55.
On this record the Court concludes the ALJ erred at Step
Five when he found Plaintiff could perform other jobs in the
national economy because he did not provide legally sufficient
reasons supported by substantial evidence in the record for doing
so.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings. Harman v. Apfel, 211 F.3d 1172,
1179 (9th Cir. 2000). The court may “direct an award of benefits
where the record has been fully developed and where further
administrative proceedings would serve no useful purpose.”
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test “for
determining when evidence should be credited and an immediate
award of benefits directed.” Harman, 211 F.3d at 1178. The
court should grant an immediate award of benefits when
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
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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.
Id. The second and third prongs of the test often merge into a
single question: Whether the ALJ would have to award benefits if
the case were remanded for further proceedings. Id. at 1178 n.2.
On this record the Court concludes there are not any
outstanding issues that must be resolved before a determination
of disability can be made. As noted, the Court has concluded the
Commissioner failed to provide legally sufficient reasons for
rejecting the opinions of Drs. Burman and Baadarani. When this
evidence is credited as true, it is clear from the record that
the Commissioner would be required to find Plaintiff is disabled.
For example, Dr. Burman noted Plaintiff was extremely anxious,
had “great difficulty maintaining . . . activities of daily
living” and due to Plaintiff’s “current symptom profile and
severity of psychological damage endured, she is not safe to work
outside the home or pursue employment in society.” Tr. 356.
Accordingly, the Court reverses the Commissioner’s decision
and remands this matter for the immediate calculation and payment
of benefits to Plaintiff.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
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Commissioner and REMANDS this matter for the immediate
calculation and payment of benefits pursuant to sentence four of
42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 12th day of November, 2019.
s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
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