Burt v. Colvin

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SHARON K. BURT, )
)
Plaintiff, )
)
vs. )
)
CAROLYN COLVIN, Acting Commissioner, )
Social Security Administration, )
) No. 4:13-cv-0031-HRH
Defendant. )
__________________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff has timely
filed her opening brief,1 to which defendant has responded.2 Oral argument was not
requested and is not deemed necessary.
Procedural Background
Plaintiff is Sharon K Burt. Defendant is Carolyn W. Colvin, acting Commissioner
of Social Security.
1Docket No. 16.
2Docket No. 23.
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On October 21, 2008, plaintiff filed applications for disability benefits under Title II
and Title XVI of the Social Security Act, alleging that she became disabled on December 15,
2007. Plaintiff alleged that she was disabled because of depression, bipolar disorder,
diabetes, diverticulitis, asthma, blind right eye, glaucoma in the left eye, and allergies.
Plaintiff’s applications were denied initially and upon reconsideration. A hearing before
an administrative law judge (ALJ) was held on October 26, 2010, and on October 27, 2010,
the ALJ issued a Fully Favorable Decision. The Appeals Council remanded plaintiffs’
applications to the ALJ because it found that there was insufficient evidence to support a
favorable decision. After a second hearing on March 23, 2012, the ALJ denied plaintiff’s
claims. On August 14, 2013, the Appeals Council denied plaintiff’s request for review,
thereby making the ALJ’s April 30, 2012 decision the final decision of the Commissioner.
On September 27, 2013 plaintiff commenced this action in which she asks the court to find
that she is entitled to disability benefits.
General Factual Background
Plaintiff was born on March 26, 1959. Plaintiff was 52 years old at the time of the
second administrative hearing. Plaintiff has a GED. Plaintiff’s past relevant work includes
work as an activities coordinator, a social services aide, a bookkeeper, a craft demonstrator,
a cashier, a hotel housekeeper, a stock clerk, and a sales clerk.
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The Administrative Decisions
The October 27, 2010 ALJ Decision
The ALJ issued a written decision based on his oral findings of fact at plaintiff’s
October 26, 2010 hearing. The ALJ found plaintiff “disabled as of December 15, 2007
because your impairment or combination of impairments is so severe that you cannot
perform any work.”3 The ALJ “found the limitations imposed by your impairments of
depression, bipolar, diabetes, right eye blindness are so severe that you are unable to
perform any work existing in significant numbers in both the national and regional
economy.”4 The ALJ found that plaintiff was “incapable of maintaining the concentration,
persistence and pace ... necessary to perform any job in today’s competitive employment
market.”5 The ALJ also noted that plaintiff had no past relevant work.6
The Appeals Council Order
The Appeals Council remanded the matter for further proceedings because it was
unable to determine what medical evidence supported the ALJ’s finding that plaintiff was
incapable of maintaining the concentration, persistence and pace necessary to perform any
3Admin. Rec. at 96.
4Admin. Rec. at 96.
5Admin. Rec. at 100.
6Admin. Rec. at 100.
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work.7 The Appeals Council noted that because most of the evidence relating to plaintiff’s
mental impairments was from 2006 through 2008, there was “little evidence in the record
illustrating the claimant’s current functional limitations or abilities.”8 The Appeals Council
also noted that “the records regarding the claimant’s eyesight are unclear” because
“undated testing shows that ... she has 20/20 bilateral vision with correction....”9 The
Appeals Council also found that it was error for the ALJ to conclude that plaintiff had no
past relevant work as she in fact had “prior work history at all skill levels.”10
The April 30, 2012 ALJ Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through December 31, 2025.”11 The ALJ then applied the five-step
sequential analysis used to determine whether an individual is disabled.12
7Admin. Rec. at 103-104.
8Admin. Rec. at 104.
9Admin. Rec. at 104.
10Admin. Rec. at 104.
11Admin. Rec. at 16.
12The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
(continued...)
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since December 15, 2007, the alleged onset date....”13
At step two, the ALJ found that plaintiff had the “following severe impairments:
obesity, diabetes mellitus; substance abuse; asthma; cataracts; and diverticulitis....”14 The
ALJ found that plaintiff did not have any severe medically determinable mental
impairments. The ALJ noted that plaintiff had diagnoses of depression, post-traumatic
stress disorder, anxiety, and bipolar disorder but that “the evidence actually does not
12(...continued)
severe to limit ... her ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... her past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... her to
adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
13Admin. Rec. at 16.
14Admin. Rec. at 16.
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document the requisite signs and symptoms of said mental disorders[.]”15 The ALJ also
relied on the testimony of medical expert Dr. McKnight16 to conclude that plaintiff’s mental
health diagnoses were incorrect.17
At step three, the ALJ found that plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
15Admin. Rec. at 23.
16Thomas McKnight, Ph.D., testified as a psychological expert at the March 23, 2012
hearing. He testified that although plaintiff had mental illness diagnoses, these diagnoses
were all based on self-reports and that based upon his review of plaintiff’s mental health
records,
the primary issue here is 12.09 [the listing for Substance
Addiction Disorders]. Ongoing cannabis use can cause
anxiety. Her presentation today is that it actually reduces her
anxiety. It can. It can certainly dramatically increase presenta-
tion of anxiety, can certainly increase depressive episodes in an
individual, and it can also result quite – in frank hallucinations
and delusional thinking over a long period of time. So I really
can’t find anything that substantiates that she has an anxiety
related disorder such as would come under 12.06, although
she’s receiving medication for that. But the peoples prescribing
the medication have not documented any kind of signs that
they have observed the characteristics that she’s reporting, and
[Dr. Bottrell’s] evaluation ... didn’t go far enough into the
examination to look at personality dynamics and other such
functions. So we’re stuck at this point, I think, with 12.09[.]
Admin. Rec. at 48-49.
17Admin. Rec. at 19.
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impairments in 20 CFR Part 404, Subpart P, Appendix 1....”18 The ALJ paid particular
attention to Listing 3.00 (Respiratory System) and Listing 5.00 (Digestive System).19 The
ALJ also considered Listings 12.04 (Affective Disorder) and 12.09 (Substance Addiction
Disorders).20 The ALJ considered whether plaintiff met the “paragraph B” criteria and
found that plaintiff had no restrictions in activities of daily living; mild difficulties in social
functioning when abusing cannabis but would have no difficulties if she stopped abusing
cannabis; mild-to-moderate difficulties as to concentration, persistence, or pace when
abusing cannabis but would have no difficulties if she stopped abusing cannabis; and had
no episodes of decompensation when abusing cannabis and if she stopped abusing
cannabis, would continue to experience no episodes of decompensation.21
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).
The ALJ found that plaintiff “has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant is limited to
occasional climbing of ramps and stairs, stooping, kneeling, crouching and crawling; no
18Admin. Rec. at 19.
19Admin. Rec. at 20.
20Admin. Rec. at 20.
21Admin. Rec. at 20.
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climbing of ladders, ropes or scaffolds; [and] the avoidance of concentrated exposure to
extreme cold, unprotected heights, and airborne irritants such as fumes, odors, dust and
gases.”22
The ALJ found plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms” less than credible.23 As for plaintiff’s physical
impairments, the ALJ found plaintiff’s symptom statements less than credible because
plaintiff had sought very little treatment and when she “did receive treatment, it was
generally conservative and the objective findings were consistently minimal.”24 The ALJ
also noted that no treating or examining physician had “ever identified any significant
functional loss with respect to the claimant’s various physical impairments, which
significantly limit her ability to perform basic work activities.”25
The ALJ found plaintiff’s symptom statements as they related to her mental
impairments less than credible because she “is independent in her everyday activities and
personal matters, spends time with others, and attends hockey games on a regular basis.”26
The ALJ also noted that “no treating or examining physician has ever identified any
22Admin. Rec. at 21.
23Admin. Rec. at 22-23.
24Admin. Rec. at 23.
25Admin. Rec. at 23.
26Admin. Rec. at 24.
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significant functional loss with respect to the claimant’s mental impairments, which
significantly limit her ability to perform basic work activities.”27
The ALJ also found plaintiff’s symptom statements less than credible because they
were inconsistent with her own statements and reported activities of daily living.28
Specifically, the ALJ noted that plaintiff claimed she was limited in her “ability to lift, walk,
climb stairs, see, remember, concentrate and get along with others”, but that plaintiff stated
that “she is able to cook meals, go shopping, and do housework on a regular basis” which
indicates a “good ability to lift, walk, see, and concentrate.”29 The ALJ also noted that
plaintiff “stated that she is able to watch TV and use the computer on a regular basis,
indicating good visual acuity.”30
The ALJ also found that plaintiff had “been most inconsistent in her presentation of
facts.”31 The ALJ specifically mentioned that plaintiff’s statements about her suicide
attempts were inconsistent because in February 2011, she claimed she had attempted
27Admin. Rec. at 24.
28Admin. Rec. at 24.
29Admin. Rec. at 25.
30Admin. Rec. at 25.
31Admin. Rec. at 25.
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suicide four times, but in July 2011, she claimed she had attempted suicide fifteen times.32
The ALJ also noted that plaintiff claimed she had a fear of crowds but “the evidence clearly
shows the claimant attends hockey games on a regular basis, indicating a good ability to
be in crowded places.”33 The ALJ also noted that Dr. McKnight testified to a “possible
magnification of symptoms on the part of the claimant[.]”34
The ALJ gave Dr. Kohnen’s35 opinion significant weight because it was “consistent
32Admin. Rec. at 25.
33Admin. Rec. at 25.
34Admin. Rec. at 25.
35On July 19, 2011, Elizabeth Kohnen, MD, an examining source, opined that
plaintiff’s “ hypertension, hyperlipidemia, [and] diabetes ... appear[] to be fairly well-
controlled [and her] asthma ... seems to be controlled at least now[.]” Admin. Rec. at 614.
Dr. Kohnen noted that plaintiff had
low back pain with possible left-sided radiculopathy, recurrent
diverticulitis, right sided esophoria with an inconsistent
Snellen (even if she could only see with her left eye, her vision
with both eyes should not be worse than that of her left eye),
possible cataract, headaches and possible depression. She has
seen another evaluater [sic] for these psychiatric symptoms. I
don’t think she is at her maximum medical improvement but
I don’t think she is far off–maybe could have better vision with
cataracts removal or different glasses, may have recurrent
diverticulitis that could be helped with surgery, et cetera.
It’s my medical assessment she [is] able to do work
related activities including sitting, standing and moving about
for short periods, light lifting and carrying, handling objects,
speaking, and traveling. She appears to be able to maneuver
(continued...)
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with the overall record as a whole and the claimant’s demonstrated functional abilities.”36
The ALJ gave significant weight to the opinion of Dr. Lewy37 for the same reason. The ALJ
gave no weight to the opinions of Dr. Evans38 and Dr. Bottrell39 “concerning the claimant’s
35(...continued)
but not read with her vision currently. In our short time
together, her psychiatric problems do not seem limiting.
Admin. Rec. at 614.
36Admin. Rec. at 25.
37On March 24, 2009, Dr. Lewy opined that plaintiff had mild restrictions of daily
living; mild difficulties in maintaining social functioning; and mild difficulties in
maintaining concentration, persistence, or pace. Admin. Rec. at 560. He also opined that
plaintiff had had no repeated episodes of decompensation. Admin. Rec. at 560. Dr. Lewy
opined that plaintiff’s mental impairments “appear[] non-severe.” Admin. Rec. at 562.
38Melinda Evans, M.D. treated plaintiff from April 25, 2006 through November 29,
2009. Admin. Rec. at 369-372, 375-388, 393-394, 491-492 & 588-591. Dr. Evans diagnosed
plaintiff with depression and bipolar disorder.
39On July 14, 2011, Jil Diane Bottrell, Ph.D., did a psychological evaluation. Dr.
Bottrell’s diagnostic impression was that plaintiff
currently reports symptoms of depression, anxiety, and anger.
These symptoms are on occasion sufficiently prominent to
interfere with her ability to interact appropriately with the
public in a social or a work situation without problems
resulting. Her memory and understanding appears to be
minimally limited, if at all. Her ability to maintain sustained
concentration and persistence is moderately limited, particu-
larly in areas of ability to work in coordination with or proxim-
ity to others without being distracted by them and ability to
complete a normal workday and workweek without interrup-
tions from psychologically based symptoms and to perform at
(continued...)
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mental impairments, as their various diagnoses are based solely on the claimant’s
subjective complaints and unsupported by any objective medical signs or laboratory
findings.”40 The ALJ gave significant weight to the opinion of Dr. McKnight.41 The ALJ
39(...continued)
a consistent pace without an unreasonable number and length
of rest periods. Her limitations in the area of social interactions
appear by her report to be significant at present or in the recent
past. She stated that her current psychotropic medications are
reducing the frequency and severity of her emotional prob-
lems, and she is in hopes that the counseling will be of further
assistance. The type and extent of any disability resulting from
her vision problems can best be quantified by her medical
providers. Intelligence testing results suggests no major
deficits in her cognitive ability. Her Verbal IQ is in the Aver-
age range, her Performance IQ is in the Superior range, and her
overall IQ of 112 is in the High Average range.
Admin. Rec. at 604. Dr. Bottrell also completed a Medical Source Statement in which she
opined that plaintiff had no impairments in terms of her ability to understand, remember,
and carry out instructions; moderate limitations in her ability to interact appropriately with
the public, supervisors, and co-workers; and mild limitations in her ability to respond
appropriately to usual work situations and to changes in routine work environment.
Admin. Rec. at 606-607. Dr. Bottrell noted that plaintiff’s “current marijuana use may affect
motivation.” Admin. Rec. at 607.
40Admin. Rec. at 25.
41Admin. Rec. at 26. Dr. McKnight testified that the record indicated that plaintiff
had no cognitive limitations and no significant difficulties in terms of social interaction
depending on the amount of cannabis she’s using in conjunc-
tion with the prescription medication she’s taking. She might
have a mild problem in that area. Her ability to complete tasks
in a timely manner, again, is going to fluctuate, maybe from
(continued...)
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gave some weight to the lay opinions of Mr. Graham,42 Ms. Elvsaas,43 and Ms. Gifford44 but
not significant weight because their opinions are “not based on medical expertise and likely
reflect[] the claimant’s symptomatological exaggerations.”45
At step four, the ALJ found that plaintiff “is capable of performing past relevant
work as an activities coordinator, social services aide, bookkeeper, craft demonstrator, and
cashier.”46 This finding was based on the testimony of the vocational expert.47
Although the ALJ was not required to, he made alternative step five findings. The
ALJ found that “there are other jobs that exist in significant numbers in the national
41(...continued)
mild to moderate depending on the amount of cannabis she’s
using and the amount of medication she’s taking.
Admin. Rec. at 49.
42James Graham, Jr., plaintiff’s fiancé, completed third-party function reports on
December 27, 2008 and December 13, 2010. Admin. Rec. at 276-283 & 320-322.
43Marie Elvsaas, plaintiff’s sister, completed third-party function reports on January
19, 2009 and December 21, 2010. Admin. Rec. at 284-291 & 326.
44Melissa Gifford, plaintiff’s neighbor, completed a third party function report on
May 7, 2009. Admin. Rec. at 292.
45Admin. Rec. at 26.
46Admin. Rec. at 26.
47Admin. Rec. at 26. Daniel Labrosse testified as the vocational expert at both
administrative hearings.
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economy that the claimant can also perform...”48 These jobs included ticker taker,
children’s attendant, and agricultural produce sorter.49
The ALJ concluded that plaintiff “has not been under a disability, as defined in the
Social Security Act, from December 15, 2007, through the date of this decision....”50
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct
legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial
evidence is ‘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.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether
substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative
record as a whole, weighing both the evidence that supports and that which detracts from
the ALJ’s conclusion.’” Id. If the evidence is susceptible to more than one reasonable
48Admin. Rec. at 27.
49Admin. Rec. at 27.
50Admin. Rec. at 28.
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interpretation, the court must uphold the Commissioner’s decision. Id. But, the
Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the court should use the October 27, 2010 decision, which
was the fully favorable decision, as its “framework for decision.”51 Plaintiff contends that
the concerns that the Appeals Council had regarding the October 27, 2012 favorable
decision were either misplaced or have been corrected with the addition of more current
medical evidence.
Review of the October 27, 2010 decision is denied. Such review would be improper
as the October 27, 2010 decision is not defendant’s final decision. The Social Security Act
limits judicial review to “any final decision of the Commissioner ... made after a hearing.”
42 U.S.C. § 405(g). To the extent that plaintiff is requesting that the court adopt the October
27, 2010 decision or to rely solely on it in reviewing defendant’s final decision, that too is
an improper request. Although the October 27, 2010 decision is part of the record, the court
reviews the entire record to see if defendant’s benefits decision is supported by substantial
evidence and based on the application of correct legal standards.
51Reply Brief of Plaintiff Sharon Burt at 2, Docket No. 24.
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Turning then to the decision under review, which is the ALJ’s April 30, 2012
decision, plaintiff argues that the ALJ erred at step two by failing to include right eye
blindness as a severe impairment. “The step-two inquiry is a de minimis screening device
to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “An
impairment or combination of impairments can be found ‘not severe’ only if the evidence
establishes a slight abnormality that has ‘no more than a minimal effect on an individuals
ability to work.’” Id. (quoting SSR 85–28). Plaintiff argues that the medical record
establishes that she was blind in the right eye and she cites to Dr. Walker’s testing which
showed that plaintiff’s uncorrected vision in her right eye was 20/200 in 2003 and 20/400
in 2004.52
Assuming that the ALJ erred in not including plaintiff’s right eye blindness as a
severe impairment, that error was harmless. An error is harmless if it is “‘inconsequential
to the ultimate nondisability determination.’” Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012) (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008)). There is no medical evidence in the record that plaintiff’s blindness in her right eye
causes her any functional limitations. Rather, the evidence is to the contrary. Dr. Bottrell
observed that “[d]espite her vision problems, [plaintiff] excelled on two Performance tests
52Admin. Rec. at 330.
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which require attention to visual detail.”53 And, Dr. Kohnen found that plaintiff had 20/70
vision with both eyes at 20 feet and 20/50 vision with both eyes at near point.54 In addition,
at step four, the ALJ noted that even if plaintiff were limited to verbal instructions, she
would still be able to perform her past relevant work as a cashier and craft demonstrator.55
Plaintiff next argues that the ALJ erred at step two by not including any of her
mental impairments as severe impairments. “A severe mental or physical impairment
must result from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques, and
established by medical evidence consisting of signs, symptoms, and laboratory findings,
not only by the claimant’s statement of symptoms.” Enich v. Colvin, Case No. C13–0721-
RSM, 2014 WL 201875, at *2 (W.D. Wash. Jan. 17, 2014). “‘[W]hen mental illness is the basis
of a disability claim, clinical and laboratory data may consist of the diagnoses and
observations of professionals trained in the field of psychopathology.’” Sanchez v. Apfel,
85 F. Supp. 2d 986, 992 (C.D. Cal. 2000) (quoting Christensen v. Bowen, 633 F. Supp. 1214,
1220-21 (N.D. Cal. 1986)). “In determining whether a claimant’s impairments are severe
at step two, the ALJ evaluates the medical evidence and explains the weight given to the
53Admin. Rec. at 604.
54Admin. Rec. at 615.
55Admin. Rec. at 26.
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opinions of acceptable medical sources in the record.” Rodriguez v. Astrue, Case No.
CV–11–03083–CI, 2013 WL 500124, at *4 (E.D. Wash. Feb. 8, 2013).
The ALJ found that plaintiff’s mental impairments were not severe medically
determinable impairments because “the evidence actually does not document the requisite
signs and symptoms of [plaintiff’s] mental disorders[.]”56 The ALJ acknowledged that
plaintiff had been diagnosed with depression, anxiety, bipolar disorder, and post-traumatic
stress disorder.57 But, the ALJ found that these diagnoses “were based purely on the
claimant’s subjective complaints, as the medical evidence documents no mania and/or
hypermania, no problems concentrating, no agitation or irritation, no delusions, no startled
response, no withdrawal or refusal to discuss an issue, no acute deterioration of action, and
no slowed thinking or rapid speech.”58 More specifically, the ALJ expressly rejected the
diagnoses of Dr. Evans and Dr. Bottrell.59
56Admin. Rec. at 23.
57Admin. Rec. at 23.
58Admin. Rec. at 24.
59In his discussion of his step two findings, the ALJ discussed Dr. Evans’ treatment,
Dr. Bottrell’s evaluation and opinion, and Dr. McKnight’s testimony at the hearing.
Admin. Rec. at 17-19. In his discussion of his RFC findings, the ALJ discussed the
diagnoses made by Drs. Evans and Bottrell and assigned weight as to the opinions of these
three medical providers. Admin. Rec. at 25-26. In viewing the ALJ’s reasoning, the court
is “not deprived of [its] faculties for drawing specific and legitimate inferences from the
ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). It is reasonable to
(continued...)
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Dr. Evans diagnosed plaintiff with bipolar disorder and depression and Dr. Bottrell
diagnosed plaintiff with major depressive disorder, post-traumatic stress disorder, and
anxiety disorder NOS. The ALJ gave “no weight” to these diagnoses because they were
based on plaintiff’s subjective complaints, which the ALJ found less than credible, and
because they were inconsistent with Dr. McKnight’s opinion.60
“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.” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). “At least where the treating doctor’s opinion is not contradicted by
another doctor, it may be rejected only for ‘clear and convincing’ reasons.” Id. (quoting
Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor’s opinion
is contradicted by another doctor, the Commissioner may not reject this opinion without
providing ‘specific and legitimate reasons’ supported by substantial evidence in the record
for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Here, the
ALJ was required to give specific and legitimate reasons for rejecting Dr. Evans’ and Dr.
Bottrell’s diagnoses that plaintiff suffered from mental impairments that could be
considered severe.
Plaintiff argues that Dr. McKnight’s opinion could not constitute substantial
59(...continued)
infer that the ALJ’s reasoning in his RFC discussion applied to his step two findings as well.
60Admin. Rec. at 25-26.
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evidence for rejecting these diagnoses because a non-examining source’s opinion which is
based on the same clinical findings as treating or examining sources cannot by itself be
substantial evidence supporting the rejection of a treating source’s opinion. Orn v. Astrue,
495 F.3d 625, 631-32 (9th Cir. 2007). But, the ALJ did not rely solely on Dr. McKnight’s
opinion to reject Dr. Evans’ and Dr. Bottrell’s diagnoses. The ALJ also rejected their
diagnoses because they were based solely on plaintiff’s subjective complaints.
As to this reason, the ALJ did not err in rejecting Dr. Evans’ diagnoses of bipolar
disorder and depression because these diagnoses appear to have been based solely on
plaintiff’s subjective complaints. But, the ALJ did err as to Dr. Bottrell’s diagnoses. Dr.
Bottrell’s diagnoses were not based solely on plaintiff’s self-reports but rather were based
on Dr. Bottrell’s observations and testing.61 In addition, Dr. Crafton,62 based on his
observations and a mental status exam, diagnosed plaintiff with post-traumatic distress
disorder, chronic; bipolar II disorder, depressed, severe without psychotic features;
61Dr. Bottrell conducted a “clinical interview” with plaintiff and “administered the
Wechsler Adult Intelligence Scale-III” to plaintiff. Admin. Rec. at 601.
62Clifford Crafton, MD, PhD, evaluated plaintiff on July 17, 2012, which was after the
ALJ issued his decision. Admin. Rec. at 638-641. The Appeals Council considered Dr.
Crafton’s examination but found that it did not “provide a basis for changing the [ALJ’s]
decision. Admin. Rec. at 1-2. “[W]hen the Appeals Council considers new evidence in
deciding whether to review a decision of the ALJ, that evidence becomes part of the
administrative record, which the district court must consider when reviewing the
Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r of Social Sec.
Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
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cannabis abuse; hallucinogen abuse, in remission for over 25 years; and cocaine abuse, in
remission for over 25 years.63 In short, the ALJ erred in finding that plaintiff did not have
medically determinable severe mental impairments.
The ALJ’s error in finding plaintiff’s mental impairments non-severe was not
harmless. Both Dr. Bottrell and Dr. Crafton opined that plaintiff had functional limitations
flowing from her mental impairments. Dr. Bottrell opined that plaintiff had moderate
limitations in her ability to interact appropriately with the public, supervisors, and co-
workers; and mild limitations in her ability to respond appropriately to usual work
situations and to changes in routine work environment.64 Dr. Crafton opined that “it
would prove exceedingly difficult for [plaintiff] to work where she has any contact with
the public.”65 There is no evidence in the record as to whether plaintiff would be able to
do her past relevant work or any other work with the limitations assessed by Dr. Bottrell
and Dr. Crafton. Thus, consideration of Dr. Bottrell’s and Dr. Crafton’s opinions could
have affected the ALJ’s ultimate disability determination.
Plaintiff next argues that the ALJ failed to fully and fairly develop the record. “The
ALJ in a social security case has an independent ‘duty to fully and fairly develop the record
63Admin. Rec. at 640.
64Admin. Rec. at 607.
65Admin. Rec. at 640.
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and to assure that the claimant’s interests are considered.’” Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001) (quoting Smolen, 80 F.3d at 1288). “When”, as here, “the claimant
is unrepresented,” at the hearing, “the ALJ must be especially diligent in exploring for all
the relevant facts.” Id. “The ALJ’s duty to develop the record fully is also heightened
where the claimant may be mentally ill and thus unable to protect her own interests.” Id.
Plaintiff argues that the ALJ failed to quantify her marijuana use or clarify the mode of
intake at the hearing,66 yet then relied on Dr. McKnight’s opinion which was based, in large
part, on plaintiff’s cannabis use.
The duty to fully and fairly develop the record “is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of the
evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The evidence
regarding plaintiff’s cannabis use was not ambiguous. Plaintiff told two providers in 2011
that she smoked it every day if she could and she told another provider in 2012 that she
smoked it 2-3 times per week. The ALJ did not fail to fully and fairly develop the record
as to plaintiff’s cannabis use.
Plaintiff also claims that her due process rights were violated because the second
ALJ was biased against her. “To succeed in this claim, [plaintiff] must show that ‘the ALJ’s
behavior, in the context of the whole case, was so extreme as to display clear inability to
66Plaintiff was not represented by counsel at either hearing.
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render fair judgment.’” Bayliss v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005) (quoting
Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001)). The court “must begin with a
presumption that the ALJ was unbiased.” Id. Plaintiff “can rebut this presumption by
showing a “‘conflict of interest or some other specific reason for disqualification.’” Id. at
1215 (quoting Schweiker v. McClure, 456 U.S. 188, 195 (1982)). Plaintiff has not pointed to
anything specific that would indicate that the ALJ was biased against her.
Finally, plaintiff asks the court to affirm the ALJ’s finding that her last insured date
is December 31, 2025, which was probably an incorrect date. The court declines to make
a ruling one way or the other on this issue because the decision under review was made
prior to the expiration of plaintiff’s insured status.
Because the ALJ erred at step two, the court must consider whether to remand for
further proceedings or for an award of benefits. “Remand for further administrative
proceedings is appropriate if enhancement of the record would be useful.” Benecke v.
Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (emphasis omitted). “Conversely, where the
record has been developed fully and further administrative proceedings would serve no
useful purpose, the district court should remand for an immediate award of benefits.” Id.
Here, a remand for further proceedings is appropriate so the ALJ can consider what impact
plaintiff’s mental impairments and the limitations flowing from them have on her ability
“to engage in any substantial gainful activity....” 42 U.S.C. § 423(d). In the final decision
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of defendant, the ALJ stated that plaintiff had to prove disability by showing that she was
unable “to engage in any and all work activities.”67 The ALJ also made repeated reference
to an “ability to perform basic work activities” and an “ability to engage in basic work
activities.”68 These references created the impression that the ALJ was requiring plaintiff
to prove that she was totally incapacitated, which is not the standard for finding disability.
See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“The Social Security Act does not
require that claimants be utterly incapacitated to be eligible for benefits”). The ALJ shall
take care, on remand, to apply the correct legal standard to plaintiff’s claim for disability.
Conclusion
Based on the foregoing, the decision of the Commissioner is reversed and this matter
is remanded for further proceedings.
DATED at Anchorage, Alaska, this 28th day of May, 2014.
/s/ H. Russel Holland
United States District Judge
67Admin. Rec. at 23.
68Admin. Rec. at 23-25.
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