Turner v. Commissioner of Social Security

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES L. TURNER,  No. 09-35080

Plaintiff-Appellant,

v.  D.C. No.

6:07-cv-06158-HO

COMMISSIONER OF SOCIAL SECURITY,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Submitted February 1, 2010*

Seattle, Washington

Filed August 2, 2010

Before: Pamela Ann Rymer, Ronald M. Gould and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge Gould

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

11075

11078 TURNER v. COMMISSIONER OF SOCIAL SECURITY

COUNSEL

Alan Stuart Graf, Alan Stuart Graf, PC, Summertown, Ten-

nessee, for the appellant.

Willy M. Le, Social Security Administration Office of the

General Counsel, Assistant Regional Counsel, Seattle, Wash-

ington, for the appellee.

OPINION

BYBEE, Circuit Judge:

James Turner appeals the district court’s grant of summary

judgment in favor of the Commissioner of Social Security

upholding a denial of Disability Insurance Benefits under

Title II of the Social Security Act. Turner contends that the

Administrative Law Judge (“ALJ”) did not give sufficient

weight to the opinion of one of his doctors, improperly dis-

credited his own testimony, and failed to adequately address

his Veteran Affairs (“VA”) disability rating. Because substan-

tial evidence supports the ALJ’s decision and the ALJ com-

mitted no legal error, we affirm.

I

Turner suffers from post-traumatic stress disorder. In 2002,

he filed an application for Title II disability insurance bene-

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11079

fits, 42 U.S.C. §§ 416(i), 423(d), claiming that he was unable

to work on July 3, 1990, due to gunshot wounds, chronic back

pain, and post-traumatic stress disorder. Both parties agree

that Turner must show that he was disabled on or before

December 31, 1990, in order to qualify for benefits under

Title II of the Social Security Act.

A

In 1990, Turner was forty-four years old. During his ser-

vice in the Army, he sustained gunshot and shrapnel wounds

in Vietnam to his left arm, temple, foot, and leg. Between

1985 to 1992, Turner underwent several medical examina-

tions through the VA. In 1985, Dr. Heide, a psychiatrist,

examined Turner and diagnosed him with probable post-

traumatic stress disorder. According to Dr. Heide, Turner

avoided the subject of Vietnam, expressed that he felt para-

noia in crowds, and stated that he was easily startled by loud

noises, but denied feeling depressed, sad, or hopeless. Dr.

Heide reported that Turner was pleasant and cooperative and

opined that Turner’s functional ability was fair. In 1986, Dr.

Aflatooni, a psychiatrist, examined Turner and diagnosed him

with post-traumatic stress disorder and atypical depression.

Turner reported that he experienced nightmares and flash-

backs about Vietnam. He stated that he was depressed, angry,

forgetful, and uncertain about the future. Dr. Aflatooni

reported that Turner was cooperative and pleasant, showed no

anxiety or irritability, made eye contact, and was fairly well

oriented to time, place, and person.

In 1990, Dr. Koogler, also with the VA, administered a

psychiatric examination to Turner. During the examination,

Turner reported that he had daily thoughts about Vietnam and

some flashbacks triggered by helicopters, but reported no

nightmares. Turner explained that he had difficulty concen-

trating, did not read, avoided crowds, slept sporadically, and

disliked unexpected noises. He expressed paranoia about the

government and losing his compensation. Dr. Koogler

11080 TURNER v. COMMISSIONER OF SOCIAL SECURITY

observed that Turner was oriented, had a normal intellect, and

displayed good judgment. At the end of the report, Dr.

Koogler included a “summary,” in which he stated that Turner

was disabled from a back injury and suffered from post-

traumatic stress disorder and depression. Dr. Koogler noted

that Turner had maintained himself “without severe problems

with his [post-traumatic stress disorder] by isolating himself

from society and living out in the country.”

In 1992, two years after the time relevant for Turner’s dis-

ability determination, Dr. Koogler examined Turner again and

noted that there had been no change in Turner’s mental status

since their last meeting. Dr. Koogler observed that Turner

“continue[d] to have a severe back problem[ ] and hobbles in

and out of his chair . . . .” Dr. Koogler noted that Turner had

not received treatment, but that he was in “good spirits and

fe[lt] like his anger [wa]s controlled because he [wa]s left

alone.” Later that year, John McFarland, a social worker,

examined Turner. McFarland noted that Turner chose to live

an isolated life, trading his labor on a ranch for lodging.

McFarland noted:

The veteran was somewhat guarded during this inter-

view. He states he feels that one result of this inter-

view would be that his compensation would be cut

off. . . . Regarding employability, the veteran is

doing just about all that he can do presently. He

would not be able to tolerate any employment which

required any sort of structure, answering to bosses,

or dealing with people.

Turner received VA disability ratings in 1987, 1997, and

2002. In 1987, the VA assigned a post-traumatic stress disor-

der disability rating of thirty percent. This rating indicated

“occupational and social impairment with occasional decrease

in work efficiency and intermittent periods of inability to per-

form occupational tasks (although generally functioning satis-

factorily, with routine behavior, self-care, and conversation

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11081

normal).” In 1997, the VA maintained the thirty percent rat-

ing. In 2002, the VA raised Turner’s post-traumatic stress dis-

ability rating to 100 percent and made it retroactive to the

year 1997.

B

In 2002, Turner filed with the Social Security Administra-

tion for disability benefits due to his gunshot wounds, chronic

back pain, and post-traumatic stress disorder. At his hearings,1

Turner testified that he was disabled due to back pain and

post-traumatic stress disorder. He stated that he could only

walk a half mile at a time, sit fifteen to twenty minutes at a

time, and lift up to forty pounds. Turner testified that he “had

no mental problems” but that he did not trust anybody and

liked to be alone. He stated that he took Motrin for his back

pain, tried to avoid doctors, and obtained treatment only when

the VA called to see him. During a regular day, Turner per-

formed various household chores and work on the ranch,

including feeding cattle, fixing holes in fences, and assisting

in rounding and branding cattle.

At Turner’s second hearing, a medical expert, Dr. Crossen,

who had not personally examined Turner, but who had

reviewed his medical records and prior hearing transcripts,

confirmed that Turner had post-traumatic stress disorder and

depression. Dr. Crossen pointed to the fact that during the

time that Turner claimed to be unable to work, he successfully

1

The Commissioner denied his original application, and Turner

requested a hearing. After a hearing in 2004, an ALJ determined that Tur-

ner was not disabled within the meaning of the Social Security Act. The

Appeals Council denied Turner’s request for review, and Turner chal-

lenged the Commissioner’s determination in federal court. The parties

agreed to remand Turner’s case because the ALJ failed to consider Tur-

ner’s VA disability rating. The district court granted the parties’ stipulated

motion to remand Turner’s case for a new hearing. Turner’s testimony

from both hearings was consolidated for purposes of his second disability

determination, the determination currently on appeal.

11082 TURNER v. COMMISSIONER OF SOCIAL SECURITY

lived by himself, responsibly cared for a ranch, and formed a

relationship that led to marriage. Dr. Crossen observed that

the record contained “little evidence” that Turner was com-

pletely incapacitated besides Turner’s own subjective com-

plaints.

Using the required five-step sequential framework for

determining whether a claimant is disabled, see 20 C.F.R.

§ 404.1520, the ALJ determined that Turner had not engaged

in substantial gainful activity since his alleged onset date, that

Turner had a severe impairment (namely, post-traumatic

stress disorder), and that the impairment did not meet or equal

the requirements of any listed impairment that would demon-

strate presumptive disability under 20 C.F.R. pt. 404, subpt.

P, app.1. The ALJ then found that Turner had the residual

functional capacity to work at any exertion level, but that he

would be limited to simple, repetitive tasks, require an envi-

ronment without a lot of background activity, not be able to

perform work involving public contact, and work best alone.

Using this residual functional capacity, a vocational expert

testified that an individual with Turner’s experience and back-

ground could find jobs such as a cleaner, laundry sorter, or

folding machine operator in the national economy. Because

Turner could perform some jobs in the national economy, the

ALJ determined that Turner was not disabled under the Social

Security Act. The Commissioner affirmed the ALJ’s decision,

and the district court granted summary judgment in favor of

the Commissioner. Turner timely appealed.

II

On appeal, Turner alleges that he is disabled solely due to

his post-traumatic stress disorder; he does not challenge the

ALJ’s rejection of his physical disability complaints. Turner

argues that the ALJ erred in determining his functional capac-

ity in three ways: (1) by not giving sufficient weight to Dr.

Koogler’s 1990 examination; (2) by rejecting Turner’s subjec-

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11083

tive complaints; (3) by inadequately addressing the disability

findings of the VA. We examine each in turn.2

A

[1] Turner first argues that the ALJ improperly rejected the

medical findings of his treating doctor, Dr. Koogler. “As a

general rule, more weight should be given to the opinion of

a treating source than to the opinion of doctors who do not

treat the claimant. . . . [T]he Commissioner must provide clear

and convincing reasons for rejecting the uncontradicted opin-

ion of an examining physician. . . . [T]he opinion of an exam-

ining doctor, even if contradicted by another doctor, can only

be rejected for specific and legitimate reasons . . . .” Lester v.

Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (quotation marks

omitted). Turner argues that Dr. Crossen’s opinion contra-

dicted Dr. Koogler’s report. It is not clear, however, that Dr.

Koogler actually concluded that Turner was disabled from

post-traumatic stress disorder, nor is it clear that Dr. Crossen

or the ALJ actually rejected Dr. Koogler’s report. What Dr.

Koogler said, in the briefest of summaries, was that Turner

was “disabled from a back injury he sustained in 1980.” But

the back injury is not the basis for Turner’s claim; he alleges

that he is disabled because of his post-traumatic stress disor-

der. But with respect to post-traumatic stress disorder, Dr.

Koogler concluded only that “[t]he veteran has been able to

maintain himself without severe problems with his [post-

traumatic stress disorder] by isolating himself from society

and living out in the country.” At Turner’s hearing, Dr.

Crossen agreed that Turner had post-traumatic stress disorder,

was easily distracted, and had a startle response. Even with

2

We must affirm the Commissioner’s final decision to deny benefits if

the decision is supported by substantial evidence and applies correct legal

standards. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

“Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. (quotation marks

omitted).

11084 TURNER v. COMMISSIONER OF SOCIAL SECURITY

these limitations, Dr. Crossen could not find that the “little

evidence” in the record supported Turner’s claim that he was

disabled. Dr. Crossen testified that Dr. Koogler’s report did

not establish that Turner was disabled. Dr. Crossen stated, “I

think Dr. [Koogler’s] assessment and reasoning there is rea-

sonable, but as far as any evidence or anything that would

actually confirm that [Turner could not work], I don’t see

anything there. . . . There’s nothing there to say that he can’t

do . . . more than what he was doing.” The ALJ agreed that

Koogler’s report “d[id] not necessarily imply that the claimant

is incapacitated” by his post-traumatic stress disorder. As the

ALJ found, nothing in Dr. Koogler’s report “assign[ed] any

specific limitations on the claimant” or stated that Turner was

unable to work with “little interpersonal interaction.” Even if

Dr. Crossen’s testimony did not contradict Dr. Koogler’s

report, the ALJ did not need to provide “clear and convincing

reasons” for rejecting Dr. Koogler’s report because the ALJ

did not reject any of Dr. Koogler’s conclusions. The ALJ

incorporated Dr. Koogler’s observations into Turner’s resid-

ual functional capacity.

[2] To the extent that Dr. Koogler’s evaluation could be

read to suggest that Turner was disabled and could not work,

the ALJ gave “specific and legitimate reasons,” Lester, 81

F.3d at 830-31, for rejecting that implication in favor of Dr.

Crossen’s testimony that the record did not support Turner’s

claim. The ALJ noted that Dr. Koogler’s opinion was “based

almost entirely on the claimant’s self-reporting.” Most of Dr.

Koogler’s evaluation recorded Turner’s report of his sleeping

patterns, anger, or startled responses, without any independent

analysis or diagnosis. In fact, Dr. Koogler assumed from the

outset, without offering his own diagnosis, that Turner suf-

fered from post-traumatic stress disorder. Other than observ-

ing that Turner had a “startle response” when a telephone

rang, Dr. Koogler made no attempt to cite “objective findings

to substantiate” a claim that Turner would be unable to do

simple, repetitive tasks without a lot of background activity

and with no public contact. In addition, because Dr. Koogler

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11085

had “not had any previous interaction with the claimant,” the

ALJ found that Koogler “was in a poor position to assess the

claimant’s statements.” The ALJ concluded that Dr.

Koogler’s report did “little to assist the claimant in establish-

ing that he is disabled for Social Security purposes.” On this

record, the ALJ reasonably rejected Dr. Koogler’s evaluation

to the extent that it implied that Turner could not perform

simple, repetitive tasks in an environment without public con-

tact or background activity.

Although the ALJ rejected any implication in Dr. Koogler’s

evaluation that Turner was disabled, he did incorporate Dr.

Koogler’s observations into his residual functional capacity

determination. The ALJ took into account Turner’s “marked

limitations in social functioning” by “limiting [him] to work

in which there is no public contact, and where it is recognized

that he works best alone.” The ALJ observed that Turner

could “not . . . perform complex work,” but should be “lim-

ited to simple and routine work.” In particular, “[h]is hyper-

vigilance and startle reflex . . . limit[ ] him to work without

significant background activity.” These limitations were

entirely consistent with Dr. Koogler’s limitation.

[3] Turner also argues that John McFarland’s 1992 report

supports his claim that the ALJ improperly discredited Dr.

Koogler’s evaluation. McFarland concluded that Turner

“would not be able to tolerate any employment which

required any sort of structure, answering to bosses, or dealing

with people.” Although we explained why Dr. Koogler’s eval-

uation does not conclude that Turner was disabled, we also

think McFarland’s report does not establish that Turner was

incapacitated. First, as a social worker, McFarland is not con-

sidered an “acceptable medical source[ ]” under the regula-

tions. 20 C.F.R. § 404.1513(a), (d). The regulations treat

“[p]ublic and private social welfare agency personnel” as

“other sources,” 20 C.F.R. § 404.1513(d)(3), and the ALJ

may expressly disregard lay testimony if the ALJ “gives rea-

sons germane to each witness for doing so.” Lewis v. Apfel,

11086 TURNER v. COMMISSIONER OF SOCIAL SECURITY

236 F.3d 503, 511 (9th Cir. 2001). Here, the ALJ’s determina-

tion that Dr. Koogler’s examination was the only examination

during the “actual period at issue, between the alleged onset

date of July 3, 1990, and the date last insured of December

31, 1990” was a germane reason for not addressing McFar-

land’s 1992 opinion that Turner was unable to work with

structure or answer to bosses. Second, McFarland gave no

support for his broad claim that Turner could not work.

McFarland wrote that Turner had nightmares, that he did not

like crowds, and that he felt “on guard at night” because he

feared intruders. But none of these factors support McFar-

land’s opinion that Turner “would not be able to tolerate any

employment.” On the contrary, McFarland’s evaluation

revealed confidence in Turner’s ability to function on the

ranch and noted that Turner did “quite a lot of work around

the ranch” and obtained supplies from the town every two

weeks. Third, McFarland is the only person who opined that

Turner was completely unable to work and he did so outside

the relevant time period. Although the VA doctors who inter-

viewed Turner concluded that he suffered from post-traumatic

stress disorder, none of the doctors indicated that Turner was

unable to work because of this diagnosis. The ALJ did not err

in disregarding McFarland’s report.

[4] In sum, there is no evidence in the record from an

appropriate medical source during the relevant time period

that refutes the ALJ’s determination that Turner, even with

post-traumatic stress disorder, was capable of performing sim-

ple, repetitive tasks in an environment where he could work

alone and without public contact.

B

[5] Turner next argues that the ALJ improperly rejected his

alleged mental complaints, particularly his need to be isolated

from other people.3 But Turner never claimed that he was

3

In order for the ALJ to find Turner’s testimony unreliable, the ALJ

must make “a credibility determination with findings sufficiently specific

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11087

incapacitated by his need to be alone. He testified at his hear-

ing that he did not have friends, avoided everybody, and did

not “put up” with “most people.” Sensitive to Turner’s com-

plaints, the ALJ determined that Turner would work best

alone and could not work with the public. The vocational

expert took these limitations into account when she testified

about the kinds of jobs available to Turner in the national

economy.

[6] Moreover, the ALJ provided several cogent reasons for

rejecting Turner’s claim that he could not “put up” with “most

people” and his suggestion that this limitation left him unable

to work. The ALJ noted that Drs. Heide and Aflatooni both

found him to be cooperative and pleasant. Turner told Dr.

Koogler that he had been able to develop control over his

anger. In addition, the ALJ stated that Turner’s “residence on

the ranch . . . reflects the confidence that others have in him

to perform tasks” and that he adequately dealt with people

when he went into town to obtain supplies or to the VA for

examinations. The ALJ also noted that Turner was capable of

developing a personal relationship during this time that

resulted in marriage. Although Turner preferred to isolate

himself, the ALJ did not improperly discredit Turner’s subjec-

tive complaints.

[7] The ALJ also found that Turner was not entirely credi-

ble because he had made exaggerated statements about the

intensity and persistence of his physical impairments. During

his hearings and on his disability application, Turner stated

that his back pain limited his ability to stand, sit, and walk,

to permit the court to conclude that the ALJ did not arbitrarily discredit

claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.

2002). In weighing a claimant’s credibility, the ALJ may consider “ordi-

nary techniques of credibility evaluation, such as . . . prior inconsistent

statements concerning the symptoms, and other testimony by the claimant

that appears less than candid, . . . and . . . the claimant’s daily activities.”

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

11088 TURNER v. COMMISSIONER OF SOCIAL SECURITY

but then described that his work on the ranch involved build-

ing fences, running a tractor, feeding cattle, and laying irriga-

tion waterlines. Because of this discrepancy in his testimony,

the ALJ found that Turner could not be “found to be wholly

credible regarding any allegation of total disability.” The ALJ

properly rejected Turner’s implication that he was disabled

because he could not “put up” with most people.

C

[8] Finally, Turner argues that the ALJ did not give proper

weight to Turner’s VA disability rating. Because social secur-

ity disability and VA disability programs “serve the same

governmental purpose—providing benefits to those unable to

work because of a serious disability,” the ALJ must give

“great weight to a VA determination of disability.” McCartey

v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). An ALJ,

however, “may give less weight to a VA disability rating if he

gives persuasive, specific, valid reasons for doing so that are

supported by the record.” Id.

[9] Here, the ALJ did not fail to give Turner’s VA disabil-

ity rating proper weight. At the time relevant to Turner’s

claim, the VA had given Turner a thirty percent disability rat-

ing. According to the VA, a disability rating of thirty percent

is granted whenever there is occupational and social

impairment with occasional decrease in work effi-

ciency and intermittent periods of inability to per-

form occupational tasks (although generally

functioning satisfactorily, with routine behavior,

self-care, and conversation normal) . . . .

Turner’s residual functional capacity reflected a similar

degree of impairment, stating that he could only perform sim-

ple, repetitive tasks, without a lot of background activity, and

could have no contact with the public. The ALJ concluded,

“[t]he claimant’s primary issue, post-traumatic stress disorder,

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11089

is not shown to have been disabling in the period through

1990. This is reflected in the VA’s refusal to find it more than

30% disabling at the time.”4 In sum, the ALJ did not reject the

VA’s partial disability finding for the relevant period, but

incorporated that finding into Turner’s overall residual func-

tional capacity.

III

Because the ALJ did not err in determining Turner’s resid-

ual functional capacity, Dr. Koogler’s report did not establish

that Turner was unable to work, the ALJ offered specific,

cogent reasons for rejecting Turner’s subjective assessment of

his inability to work, and the ALJ gave proper weight to the

VA disability rating, we affirm the judgment of the district

court.

AFFIRMED.

GOULD, Circuit Judge, dissenting:

Nobody disputes the Department of Veterans Affairs’

(“VA”) assessment, nor is it directly at issue, that as of 1997

Turner has been completely disabled by PTSD. And nobody

disputes the ALJ’s correct conclusion that Turner was

severely impaired by PTSD on or before his date last insured

(“DLI”), December 31, 1990. The only issue in this appeal is

whether Turner’s severe PTSD-related impairments became

disabling, as that term is understood in the context of eligibil-

ity for social security disability insurance benefits, before

December 31, 1990. If so, Turner is entitled to disability

insurance benefits. The ALJ erred in deciding this issue by

not giving clear and convincing reasons for rejecting Dr.

4

The VA did not find Turner 100 percent disabled until 2002, retroac-

tive to 1997, which is still seven years after the relevant disability period.

11090 TURNER v. COMMISSIONER OF SOCIAL SECURITY

Koogler’s uncontradicted PTSD opinion and by not consider-

ing evidence probative of the severity of Turner’s debilitating

PTSD. I would reverse and remand the matter for an award

of benefits.

Turner’s PTSD stems from trauma he endured while serv-

ing our country in Vietnam. Commentators recently described

the features of the Vietnam War that increased the prevalence

of PTSD among its returning veterans as follows:

[T]he war presented the American military with a

relatively new kind of warfare—guerrilla warfare.

The very nature of guerrilla warfare expands the

number of combatants placed in danger, encompass-

ing both soldiers directly involved in the fighting and

those working in what had traditionally been a rela-

tively removed and safe logistical capacity. During

the Vietnam War, there were no front and rear lines;

the combat zone came to surround the soldiers virtu-

ally anywhere they were in that country at all times.

Furthermore, because combatants are not clearly

identified in this type of warfare, soldiers found it

difficult to know who was friend or foe. For exam-

ple, Vietnamese “civilians” could turn out to be Viet

Cong operatives. Hence, many soldiers assumed a

hypervigilant or “survivor mode” state of mind in

which they attempted to be constantly aware of their

surrounding environment in order to anticipate and

react to potential attacks and life-threats. Unfortu-

nately, many times this mode did not “turn off”

when the soldiers returned home. As a result, many

veterans manifested enduring psychological prob-

lems after returning to civilian life.

Thomas L. Hafemeister & Nicole A. Stockey, Last Stand?

The Criminal Responsibility of War Veterans Returning From

Iraq and Afghanistan with Posttraumatic Stress Disorder, 85

Ind. L.J. 87, 99-100 (2010) (footnotes omitted).

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11091

Turner’s combat experience in Vietnam exposed him to ter-

rible things that most civilians could never imagine. Turner’s

duties in Vietnam included, among other things, serving as a

so-called tunnel rat. A tunnel rat’s job was to descend into a

Viet Cong tunnel—typically equipped with only a pistol,

knife, and flashlight—and clear hostile forces from within the

tunnel. See 1 Encyclopedia of the Vietnam War: A Political,

Social, and Military History 141 (Spencer C. Tucker ed.,

1998). Because of the “physically and psychologically drain-

ing” nature of this work, “most tunnel rats served relatively

short periods.” Id. Turner recalls two events in particular that

still haunt him. First, Turner and his platoon discovered the

remains of seven American soldiers who had been skinned

alive a week earlier. Second, Turner watched a helicopter

crash, killing all aboard, while Turner’s own helicopter was

taking fire. Also, Turner was not personally spared from the

violence of the war. His military medical records show that he

was hospitalized and underwent skin-graft surgery for missile

and bullet wounds that he sustained during a firefight with

hostile forces. It is beyond dispute that these experiences

demonstrate Turner’s “direct personal experience of an event

that involves actual or threatened death or serious injury.” See

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 463 (4th ed., text rev. 2000)

(“DSM-IV-TR”) (stating that this “essential feature” of PTSD

may arise from military combat).1

1

Given the gruesome shocks that follow in the train of war, it is not sur-

prising that our young men and women returning from Vietnam have such

a high incidence of PTSD. One congressional study concluded that 30.6%

of male Vietnam veterans have PTSD at some point during their lives, and

15.2% of male veterans were still plagued by full-blown PTSD ten years

after the Vietnam War ended. See Richard A. Kulka et al., Trauma and the

Vietnam War Generation: Report of Findings from the National Vietnam

Veterans Readjustment Study xxiii, xxvii (1990). Male veterans with high

levels of war-zone exposure, as might be said about Turner, are still more

likely to continue to suffer from full-blown PTSD. United States Depart-

ment of Veterans Affairs, Findings from the National Vietnam Veterans’

Readjustment Study, http://www.ptsd.va.gov/professional/pages/vietnam-

vets-study.asp (last visited June 2, 2010) (“Those with high levels of war-

zone exposure had significantly higher rates, with 35.8% of men and

17.5% of women meeting criteria for current PTSD.”).

11092 TURNER v. COMMISSIONER OF SOCIAL SECURITY

Dr. Koogler was an examining doctor for Turner. Prior to

the DLI, Dr. Koogler described without equivocation that

Turner employed in civilian life the isolating hypervigilance

and distrustfulness that Turner and other soldiers relied on to

survive in Vietnam, even though these trained responses are

preventing Turner’s successful reintegration into civilian life.

Upon returning to his home after being gone for a period of

time, Turner surveys his property for tire tracks and foot-

prints, and checks his house thoroughly. Dr. Koogler also

noted that Turner is “suspicious of anyone carrying a gun”

because “he feels like they are a potential enemy, and this is

particularly true of the police department.” Turner thinks

about Vietnam daily and the sound of a helicopter triggers

flashbacks. This should be an obvious red flag for urban life

where the sound of helicopter traffic is not uncommon. Turner

became “involved as little as possible[ ] with people.” It is

within this context that Dr. Koogler diagnosed Turner with

PTSD and opined that Turner “has been able to maintain him-

self without severe problems with his PTSD by isolating him-

self from society and living out in the country.” The logical

and necessary inference from Dr. Koogler’s opinion is that

Turner would not be able to maintain himself in an ordinary

work environment where he must interact and coordinate with

other people.

Because Dr. Koogler’s opinion was uncontradicted, the

ALJ erred by not providing clear and convincing reasons for

rejecting Dr. Koogler’s opinion. See Lester v. Chater, 81 F.3d

821, 830 (9th Cir. 1995) (“[T]he Commissioner must provide

‘clear and convincing’ reasons for rejecting the uncontra-

dicted opinion of an examining physician.”). The ALJ relied

on Dr. Crossen’s hearing testimony, stating, “As Dr. Crossen

pointed out, Dr. Koogler’s report does not necessarily imply

that the claimant is incapacitated by PTSD.” The ALJ misap-

prehended Dr. Crossen’s view. Dr. Crossen concluded that

Turner’s impairments were “at least moderate and maybe

severe.” Dr. Crossen did not disagree with Dr. Koogler’s

opinion. Instead, Dr. Crossen stated, “I don’t see any reason

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11093

to say [Dr. Koogler’s] opinion is wrong, but on the other hand

there’s not a whole lot here to say that it’s right except that,

you know, it’s just an opinion.” Dr. Crossen’s view, which at

worst from Turner’s perspective is equivocal, is not a clear

and convincing reason to reject Dr. Koogler’s explicit opinion

that Turner’s problems with severe PTSD can only be avoided

by isolation. See id. at 831 (“The opinion of a nonexamining

physician cannot by itself constitute substantial evidence that

justifies the rejection of the opinion of either an examining

physician or a treating physician.”).

The ALJ’s incorrect conclusions that Dr. Koogler’s opinion

was based almost entirely on Turner’s self-reports and that

Dr. Koogler did not cite objective findings that support Tur-

ner’s disability from PTSD similarly are not clear and con-

vincing reasons for rejecting the opinion. Dr. Koogler noted

many aspects of his assessment, not generated by Turner’s

own complaints, that led to his view of Turner’s PTSD. For

example, Dr. Koogler noted Turner’s “severe startle

response,” that Turner “jumps clear out of his chair” when the

phone rings in Dr. Koogler’s office, that Turner “has severe

difficulty concentrating,” and that Turner “has an extreme

restricted affect throughout the whole interview and does not

display much in the way of emotion, except for a startle

response with the unexpected noise.” See DSM-IV-TR 464

(stating that PTSD’s symptoms include “hypervigilance,”

“exaggerated startle response,” “difficulty concentrating,”

“[d]iminished responsiveness,” “persistent symptoms of anxi-

ety,” and “markedly reduced ability to feel emotions”). The

ALJ ignored the value that these objective clinical findings

have in supporting Dr. Koogler’s conclusion that Turner

requires rural isolation from society to cope with his severe

PTSD. See id. (stating that those with PTSD “commonly

make[ ] deliberate efforts . . . to avoid activities, situations, or

people” that might trigger flashbacks or intrusive recollec-

tions of traumatic events). Instead, the ALJ, in determining

Turner’s residual functional capacity, cleared Turner “to per-

form work at any exertion level.” Although the ALJ professed

11094 TURNER v. COMMISSIONER OF SOCIAL SECURITY

to limit Turner to “simple and routine work” in an environ-

ment where there was not “a lot of background activity” and

“no contact with the public,” even these limitations do not

account for Dr. Koogler’s conclusion that Turner needs to be

isolated from society and live out in the country just to main-

tain himself.

Moreover, it is not as if Turner’s story of his PTSD is not

supported by witnesses. To the contrary, and in a real sense,

each day that Turner lives in an isolated area, bereft of the

normal incidents of companionship that attend urban life and

most jobs, stands as a silent confirming witness attesting to

Turner’s real difficulties. Why else would he live in the mid-

dle of nowhere? Why else would he be in large part a lone

wolf, hypervigilant against imagined dangers?

The ALJ’s erroneous conclusion that Turner’s PTSD “is

not shown to have been disabling in the period through [the

DLI]” ignored not only Dr. Koogler’s opinion but additional

relevant evidence post-dating Turner’s DLI that should have

been considered. In 1992, within two years of the DLI, social

worker John McFarland opined that Turner “would not be

able to tolerate any employment which required any sort of

structure, answering to bosses, or dealing with people” and,

“[r]egarding employability, the veteran is doing just about all

that he can do presently.” The VA also determined that Tur-

ner was 100% disabled as of 1997. The ALJ did not consider

this evidence. While the ALJ must consider only impairments

(and limitations and restrictions therefrom) that Turner had

prior to the DLI, evidence post-dating the DLI is probative of

Turner’s pre-DLI disability. See Smith v. Bowen, 849 F.2d

1222, 1225 (9th Cir. 1988) (“[M]edical evaluations made after

the expiration of a claimant’s insured status are relevant to an

evaluation of the pre-expiration condition.”). Because the ALJ

recognized that Turner’s “activities and reported symptoms

ha[d] not really changed over the years,” McFarland’s assess-

ment and the VA’s subsequent 100% disability-rating were

especially probative of the disabling nature of Turner’s PTSD

TURNER v. COMMISSIONER OF SOCIAL SECURITY 11095

before the DLI and therefore should have been considered by

the ALJ.

In sum, Turner is the real deal—a decorated Vietnam vet-

eran with two purple hearts who had a hard time of it over

there, fighting an often unseen enemy, and who, back here,

has a hard time of it getting his entitlement from the Social

Security Administration. He has continuing problems that pre-

vent him from engaging in substantial gainful employment.

Yet the Social Security Administration is deaf and blind to

this. Contrary to the ALJ’s conclusion that Turner could work

as a cleaner, laundry sorter, or folding-machine operator, Tur-

ner would be at risk of harming both himself and others if

thrust from his beneficial isolation. Living apart in a rural area

is a benignant circumstance for Turner. We cannot solve Tur-

ner’s problems nor can we cure his PTSD. But the social

security benefits to which Turner is entitled—and for which

he applied almost eight years ago—might spell the difference

between a life with some semblance of dignity and indepen-

dence, and an alternative with inadequate funds to meet basic

needs. I believe that these benefits are his entitlement, they

are not an act of welfare, not an act of grace. They are merely

and surely his due. I would therefore reverse and remand this

case for an award of benefits. See Smolen v. Chater, 80 F.3d

1273, 1292 (9th Cir. 1996) (reversing and remanding for an

award of benefits where “a finding of disability is clearly

required” and “[the claimant] has already waited over seven

years . . . and additional proceedings would only delay her

receipt of benefits”).