Norman v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ERIK F. N.,1 No. 1:19-CV-00778-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, Social Security

Administration,

Defendant.

HERNÁNDEZ, District Judge:

Plaintiff brings this action for judicial review of the Commissioner’s final decision

denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social

Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.

§ 1382(c)(3)). For the reasons that follow, the Court REVERSES the Commissioner’s decision

and REMANDS this case for further administrative proceedings.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of

the non-governmental party or parties in this case. Where applicable, this opinion uses the same

designation for non-governmental party’s immediate family members.

BACKGROUND

Plaintiff was born on July 25, 1975 and was thirty-nine years old on April 1, 2015, the

alleged disability onset date. Tr. 17, 26.2 Plaintiff has at least a high school education and has no

past relevant work. Tr. 26. Plaintiff claims he is disabled based on conditions including bipolar

disorder, major depressive disorder, anxiety, and post-traumatic stress disorder. Tr. 19.

Plaintiff’s benefits application was denied initially on August 31, 2015, and upon

reconsideration on January 25, 2016. Tr. 17. A hearing was held before Administrative Law

Judge John D. Sullivan on April 27, 2018. Tr. 38–59. ALJ Sullivan issued a written decision on

May 23, 2018, finding that Plaintiff was not disabled. Tr. 17–27. The Appeals Council declined

review, rendering ALJ Sullivan’s decision the Commissioner’s final decision. Tr. 1–6.

SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if he is unable 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). Disability claims are evaluated according to a five-step procedure. Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate

burden of proving disability. Id.

At step one, the Commissioner determines whether a claimant is engaged in “substantial

gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987);

20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the

claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S.

at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

2 Citations to “Tr.” refer to the administrative trial record filed here as ECF No. 9.

At step three, the Commissioner determines whether claimant’s impairments, singly or in

combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 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.

At step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20

C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the

claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,

the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at

141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden

and proves that the claimant is able to perform other work which exists in the national economy,

the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since the alleged disability onset date. Tr. 19.

At step two, the ALJ determined that Plaintiff had the “following severe impairments:

bipolar disorder; major depressive disorder; anxiety; and mild posttraumatic stress disorder

(PTSD).” Tr. 19.

At step three, the ALJ determined that Plaintiff did not have any impairment or

combination of impairments that met or medically equaled the severity of one of the listed

impairments. Tr. 19–21.

Before proceeding to step four, the ALJ found that Plaintiff had the residual functional

capacity (RFC)

to perform a full range of work at all exertional levels but with the following non-

exertional limitations. He is limited to performing simple routine tasks and

making simple work-related decisions. He is limited to occasional contact with

the public, coworkers, and supervisors. Time off task will be accommodated by

normal breaks.

Tr. 21.

At step four, the ALJ determined that Plaintiff has no past relevant work. Tr. 26. At step

five, the ALJ relied on the testimony of a vocational expert (VE) to find that Plaintiff could

perform jobs existing in significant numbers in the national economy. Tr. 26–27. Accordingly,

the ALJ concluded that Plaintiff was not disabled. Tr. 27.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings are based on legal error or are not supported by substantial evidence in

the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial

evidence means more than a mere scintilla but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal

quotation marks omitted). Courts consider the record as a whole, including both the evidence that

supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d

1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational

interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal

quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)

(“Where the evidence as a whole can support either a grant or a denial, [the court] may not

substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).

DISCUSSION

Plaintiff raises three issues on appeal. He argues the ALJ erred in (1) excluding Plaintiff’s

moderate limitations related to concentration, pace, and persistence in the RFC; (2) rejecting

Plaintiff’s subjective symptom testimony; and (3) assigning little weight to the opinion of Dr.

Alvord, a clinical psychologist.

I. Residual Functional Capacity Assessment

Plaintiff first challenges the ALJ’s RFC assessment, arguing the ALJ erred in excluding

Plaintiff’s moderate limitations related to concentration, pace, and persistence.

When an ALJ makes a finding of moderate limitations in concentration, persistence, or

pace in step three, those limitations must be reflected in the RFC assessment. Saucedo v. Colvin,

No. 6:12-CV-02289-AC, 2014 WL 4631225, at *17–18 (D. Or. Sept. 15, 2014) (failure to

include limitations regarding concentration, persistence, or pace in the RFC is reversible error if

the ALJ found such limitations at step three); see also Lubin v. Comm’r Soc. Sec. Admin., 507 F.

App’x 709, 712 (9th Cir. 2013) (“The ALJ must include all restrictions in the [RFC]

determination . . . including moderate limitations in concentration, persistence, or pace.”). An

ALJ’s assessment that a plaintiff can perform “simple tasks” may “adequately capture[]

restrictions related to concentration, persistence, or pace where the assessment is consistent with

restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169,

1174 (9th Cir. 2008). In Stubbs–Danielson, for example, the ALJ relied on medical testimony

that the plaintiff retained the ability to perform simple tasks, notwithstanding some evidence that

the plaintiff had deficiencies in pace. Id. at 1173–74. Stubbs-Danielson does not apply, however,

to cases where the medical evidence establishes that the plaintiff has restrictions in

concentration, persistence, or pace that are not captured in the RFC. Brink v. Comm’r Soc. Sec.

Admin., 343 F. App’x 211, 212 (9th Cir. 2009) (“The medical testimony in Stubbs–Danielson,

however, did not establish any limitations in concentration, persistence, or pace. Here, in

contrast, the medical evidence establishes, as the ALJ accepted, that Brink does have difficulties

with concentration, persistence, or pace. Stubbs–Danielson, therefore, is inapposite.”).

Here, at step three, the ALJ relied on medical evidence to determine that Plaintiff has

moderate limitations in concentration, persistence, or pace. Tr. 20. However, while the RFC

limits Plaintiff to “simple routine tasks,” it does not include any limitations related to

concentration, persistence, or pace. Tr. 21 The issue, then, is whether the RFC assessment

sufficiently translates the ALJ’s findings into functional limitations. The Court finds that it does

not. See Gartner v. Berryhill, No. 6:16-cv-01505-SI, 2017 WL 3208351, *14 (D. Or. July 28,

2017) (“An RFC that limits Plaintiff to simple work does not incorporate Plaintiff’s moderate

difficulty with concentration, persistence, and pace.”); Becky B. v. Saul, No. 6:19-cv-330-SI,

2020 WL 1244865 (D. Or. Mar. 16, 2020) (same). The ALJ therefore failed to fully capture

Plaintiff’s limitations, because the jobs the VE identified (laborer, salvage; meat clerk; hand

packager), may still require focus and concentration despite being “simple routine tasks.” See

Brink, 343 F. App’x at 212 (“The hypothetical question to the vocational expert should have

included not only the limitation to ‘simple, repetitive work,’ but also Brink’s moderate

limitations in concentration, persistence, or pace.”).

II. Subjective Symptom Testimony

Plaintiff also argues the ALJ improperly discounted his subjective symptom testimony.

The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1

(Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal relationship

between the impairment and some level of symptoms, clear and convincing reasons are needed

to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v. Comm’r, 533

F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering,

“where the record includes objective medical evidence establishing that the claimant suffers from

an impairment that could reasonably produce the symptoms of which he complains, an adverse

credibility finding must be based on clear and convincing reasons” (quotation marks and citation

omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a

two-step analysis for subjective symptom evaluation: First, the ALJ determines whether there is

“objective medical evidence of an underlying impairment which could reasonably be expected to

produce the pain or other symptoms alleged”; and second, “if the claimant has presented such

evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and

convincing reasons in order to reject the claimant’s testimony about the severity of the

symptoms.” (quotation marks and citations omitted)).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant’s testimony.”).

Here, the ALJ found that Plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms” and did not identify evidence of

malingering. Tr. 22. However, the ALJ concluded that Plaintiff’s “statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely consistent with the

medical evidence and other evidence in the record.” Tr. 22. The ALJ found that “inconsistencies

between the claimant’s alleged onset date, work cessation, and longitudinal medical records,” as

well as “the evidence of record, including the claimant’s longitudinal medical records, objective

findings, and activities of daily living,” undermined Plaintiff’s “allegations regarding the

intensity, persistency, and limiting effects of his symptoms and conditions.” Tr. 22–23.

Plaintiff argues only that the ALJ erred in (1) relying on Plaintiff’s statement about a

2011 hospitalization and (2) failing to identify which medical records, objective findings, and

activities of daily living he relied on to discount Plaintiff’s testimony.

The Court agrees that the ALJ erred in finding Plaintiff’s statement about a 2011

hospitalization inconsistent with the medical record. Specifically, the ALJ found that while

Plaintiff “testified that he was psychiatrically hospitalized in 2011,” the “medical evidence of

record contains no medical records from that alleged hospitalization.” Tr. 22. As Plaintiff points

out, however, progress notes confirm that Plaintiff was “[h]ospitalized at Mission Oaks after

suicide attempt by overdose (Ativan).” Tr. 376. Thus, while the ALJ was technically correct that

there are no records from this hospitalization, the Court does not agree that this contradicts

Plaintiff statement that he was hospitalized in 2011.

However, Plaintiff ignores the other identified inconsistencies. For example, the ALJ

noted that while Plaintiff testified that he stopped working in December 2011 because of his

medical conditions, there are no medical records from this time period. Additionally, the ALJ

noted that records from around April 2015, the alleged disability onset date, “show [Plaintiff]

was tolerating his medications with no significant exacerbation in his mental conditions or

symptoms that would support his assertion that he became disabled at that time.” Tr. 23; see tr.

278 (May progress note stating “depression anxiety: has been doing well overall” and that

Plaintiff was tolerating his medication well at its current dosage), tr. 279 (“tolerating [meds] well

at the current doses”);tr. 280 (February progress note stating that Plaintiff felt anxiety about an

upcoming family court date in California, but was “managing depression ok and no problems

with medications”). Plaintiff does not challenge these findings, and the Court sees no error.

Additionally, the ALJ also found that Plaintiff’s mental health symptoms and conditions

continued to be generally well controlled by medication. See Orteza v. Shalala, 50 F.3d 748, 750

(9th Cir. 1995) (ALJ may consider the effectiveness of treatment in evaluating a claimant’s symptom

testimony). Plaintiff does not challenge this finding. After reviewing the ALJ’s citations, the Court

finds that the ALJ did not err in relying on records that suggest Plaintiff’s mental health symptoms

and conditions were well managed with medication.

In sum, while the ALJ may have erred in relying on Plaintiff’s statement about a 2011

hospitalization, he provided alternative clear and convincing reasons, supported by substantial

evidence, to reject Plaintiff’s subjective symptom testimony.

III. Medical Opinion Evidence

Social security law recognizes three types of physicians: (1) treating, (2) examining, and

(3) nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, more

weight is given to the opinion of a treating physician than to the opinion of those who do not

actually treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). More

weight is also given to an examining physician than to a nonexamining physician. Garrison, 759

F.3d at 1012.

If a treating physician’s medical opinion is supported by medically acceptable diagnostic

techniques and is not inconsistent with other substantial evidence in the record, the treating

physician’s opinion is given controlling weight. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.

2014); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). If the treating physician’s opinion is not

contradicted by another doctor, the ALJ may reject it only for “clear and convincing” reasons

supported by substantial evidence in the record. Ghanim, 763 F.3d at 1160–61. Even if the

treating physician’s opinion is contradicted by another doctor, the ALJ may not reject the

treating physician’s opinion without providing “specific and legitimate reasons” which are

supported by substantial evidence in the record. Id. at 1161; Bayliss v. Barnhart, 427 F.3d 1211,

1216 (9th Cir. 2005).

Here, the ALJ summarized Dr. Alvord’s opinion as follows:

Dr. Alvord diagnosed the claimant with bipolar affective disorder and mild PTSD.

Dr. Alvord expressed “significant concerns” regarding the claimant’s ability to

maintain any level of consistency in a job setting, and he indicated that the

claimant “will likely decompensate fairly rapidly” in a stressful work environment

or if he is expected to function consistently. In a supplemental medical source

statement, Dr. Alvord indicated that the claimant had moderate limitation in

understanding, remembering, and carrying out complex instructions and making

complex work-related decisions. He had no limitation in completing simple

instructions and mild limitation in making simple work-related decisions. He had

moderate limitation interacting with the public and marked limitation interacting

with coworkers and supervisors. He also had marked limitation responding

appropriately to usual work situations and changes in routine work setting. He

would he absent from work more than four days per month.

Tr. 24. The ALJ gave this assessment “limited weight,” finding it

inconsistent with the record as a whole, including the normal objective findings of

the in-person evaluation and the claimant’s longitudinal medical records.

Furthermore, Dr. Alvord provided no support or explanation for his opinions

regarding marked limitation in interacting with others and adapting to changes,

absenteeism, decompensation, or an inability to function consistently or sustain

work activity. In addition, the undersigned notes that Dr. Alvord’s statement

regarding decompensation is ambiguous, as it is preceded by an introductory

phrase lacking finite limitations (e.g., “will likely”).

Tr. 24–25.

First, the ALJ’s boilerplate assertion that Dr. Alvord’s opinion was inconsistent with the

record as a whole, including with Plaintiff’s longitudinal medical records, does not constitute a

specific and legitimate reason to discount his opinion. See Garrison, 759 F.3d at 1012–13 (“An

ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more

than . . . criticizing it with boilerplate language that fails to offer a substantive basis for his

conclusion.”). Similarly, to the extent the ALJ relies on inconsistencies with Dr. Alvord’s own

“normal objective findings,” the ALJ fails to identify which normal objective findings he relies

on. To the extent the ALJ intended to rely on the WMS IV and WASI II test results, or Dr.

Alvord’s finding that Plaintiff’s speech “was within normal limits,” the ALJ fails to explain how

these objective findings are inconsistent with Dr. Alvord’s opinion that, for example, Plaintiff

“had moderate limitation in understanding, remembering, and carrying out complex instructions and

making complex work-related decisions.” Tr. 24, 452. Without this additional information, the

Court cannot find the ALJ’s reasoning specific and legitimate.

The ALJ also discounted Dr. Alvord’s opinion, however, because he provided no support

or explanation for the limitations he assessed in the check-box portion of the report. “An ALJ is

not required to take medical opinions at face value, but may take into account the quality of the

explanation when determining how much weight to give a medical opinion.” Ford v. Saul, 950

F.3d 1141 (9th Cir. 2020). “While an opinion cannot be rejected merely for being expressed as

answers to a check-the-box questionnaire, the ALJ may permissibly reject check-off reports that

do not contain any explanation of the bases of their conclusions.” Id. (internal quotation and

citations omitted). Here, Dr. Alvord checked boxes indicating that Plaintiff would have some

marked limitations and would miss more than four days of work per month. He did not, however,

provide any explanation for his opinion or respond to the request from Plaintiff’s attorney to

“identify the factors . . . that support [his] assessment.” Tr. 451–54. The Court sees no

explanation in Dr. Alvord’s psychological evaluation and, because he did not treat Plaintiff, there

are no treatment records to review.3 The ALJ did not, therefore, err in giving limited weight to

Dr. Alvord’s opinion on this basis.

Lastly, Plaintiff argues that the ALJ erred in finding that “Dr. Alvord’s statement

regarding decompensation is ambiguous, as it is preceded by an introductory phrase lacking

finite limitations (e.g., ‘will likely’).” Tr. 25. Defendant does not respond to this argument.

Given the Court’s conclusion that the ALJ did not err in relying on the lack of support and

explanation for the assessed limitations, any error as to the decompensation limitation in

particular is harmless. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.

2004) (any error was harmless in light of the ALJ’s other reasons to support the credibility and

residual functional capacity findings).

IV. Remand for Benefits

The decision whether to remand for further proceedings or for immediate payment of

benefits is within the Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).

To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test.

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); see also Treichler v. Comm’r, 775 F.3d

1090, 1100 (9th Cir. 2014) (“credit-as-true” rule has three steps). First, the ALJ must fail to

provide legally sufficient reasons for rejecting evidence. Garrison, 759 F.3d at 1020. Second, the

3 The Court also does not agree that the ALJ’s duty to develop the record was triggered here. Dr.

Alvord’s opinion was not ambiguous or unclear; it was simply unsupported. The rejection of a

single medical opinion in an otherwise adequate record does not automatically trigger the duty to

develop the record. See McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“Rejection of the

treating physician’s opinion on ability to perform any remunerative work does not by itself

trigger a duty to contact the physician for more information.”). Here, the overall record,

including opinions by state agency psychological consultants, was not inadequate to evaluate

Plaintiff’s RFC.

record must be fully developed, and further administrative proceedings would serve no useful

purpose. Id. Third, if the case is remanded and the improperly discredited evidence is credited as

true, the ALJ would be required to find the claimant disabled. Id. To remand for an award of

benefits, each part must be satisfied. Id.; see also Treichler, 775 F.3d at 1101 (when all three

elements are met, “a case raises the ‘rare circumstances’ that allow us to exercise our discretion

to depart from the ordinary remand rule” of remanding to the agency).

Plaintiff argues that remand for an award of benefits is appropriate. This case, however,

is not one with “rare circumstances” justifying that type of remand. While the ALJ failed to

account for Plaintiff’s limitations in concentration, persistence, or pace in the RFC assessment,

the ALJ did not err in discounting Plaintiff’s subjective symptom testimony or Dr. Alvord’s

opinion. The record has not been fully developed and further proceedings would be useful.

CONCLUSION

The decision of the Commissioner is reversed and remanded for further administrative

proceedings.

IT IS SO ORDERED.

Dated: ________J_u_ly_ _2_2_,_ 2_0_2_0________________.

MARCO A. HERNÁNDEZ

United States District Judge