Johnson v. Saul

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
REGINA JOHNSON, )
)
Plaintiff, )
)
vs. )
)
ANDREW M. SAUL, Commissioner of )
Social Security, )
) No. 3:19-cv-0170-HRH
Defendant. )
_______________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Regina Johnson moves for
judgment on the pleadings.1 This motion is opposed by defendant, Andrew M. Saul.2 Oral
argument was not requested and is not deemed necessary.
Procedural Background
On January 3, 2013, plaintiff filed an application for disability benefits under Title II
of the Social Security Act, alleging that she became disabled on August 1, 2009. Plaintiff
alleged that she was disabled due to fibromyalgia, arthritis, hypertension, chronic fatigue,
1Docket No. 19.
2Docket No. 22.
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depression, and Type II diabetes. Plaintiff’s application was denied, and plaintiff requested
a hearing. After an administrative hearing on June 13, 2014, an administrative law judge
(ALJ) denied plaintiff’s application. Plaintiff sought review of the ALJ’s September 3, 2014,
unfavorable decision. On December 8, 2015, the Appeals Council denied plaintiff’s request
for review. Plaintiff sought judicial review and on February 8, 2017, the court remanded the
matter for further proceedings. Upon remand, an administrative hearing was held on March
8, 2018. After this hearing, the ALJ again denied plaintiff’s application. Plaintiff again
sought review of the ALJ’s unfavorable decision. On April 15, 2019, the Appeals Council
denied plaintiff’s request for review, thereby making the ALJ’s May 31, 2018 decision the
final decision of the Commissioner. On June 17, 2019, plaintiff commenced this action in
which she asks the court to review the Commissioner’s final decision.
General Background
Plaintiff was born on January 24, 1956. Plaintiff was 53 years old on her alleged
onset date. Plaintiff has a high school education and some college but no college degree.
Plaintiff’s past relevant work was as a Postal Service supervisor and a Postal Service clerk.
The ALJ’s Decision
The ALJ first found that plaintiff “last met the insured status requirements of the
Social Security Act on December 31, 2014.”3
3Admin. Rec. at 1440.
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The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.4
At step one, the ALJ found that plaintiff “did not engage in substantial gainful activity
during the period from her alleged onset date of August 1, 2009 through her date last insured
of December 31, 2014. . . .”5
4The 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
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).
5Admin. Rec. at 1440.
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At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the
following severe impairments: diabetes mellitus II, open angle glaucoma, SAO,[6]
degenerative joint disease of the left knee and left shoulder, degenerative disc disease of the
cervical spine, obesity, and fibromyalgia. . . .”7 The ALJ found plaintiff’s mood disorder and
PTSD to be non-severe impairments.8 The ALJ considered the “paragraph B” criteria and
found that plaintiff had no limitations as to understanding, remembering, or applying
information; mild limitation as to interacting with others; no limitations as to concentrating,
persisting or maintaining pace; and no limitations as to adapting or managing oneself.9 The
ALJ relied on Dr. Valette’s testimony as to the severity of plaintiff’s mental impairments.10
The ALJ rejected the opinions of Dr. Curtiss and Social Worker Kneeland11 as to the severity
of plaintiff’s mental impairments because these opinions were not consistent with the
medical record.12
6The ALJ apparently meant to use the acronym for obstructive sleep apnea, OSA,
rather than SAO.
7Admin. Rec. at 1440.
8Admin. Rec. at 1440.
9Admin. Rec. at 1441.
10Admin. Rec. at 1440-1441. Dr. Valette’s testimony is discussed below in some
detail.
11Dr. Curtiss’ opinions are discussed below in detail. Kneeland’s opinions were
essentially the same as those of Dr. Curtiss.
12Admin. Rec. at 1442-1443.
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At step three, the ALJ found that “[t]hrough the date last insured, the claimant did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. . . .”13
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r of Social Security Admin., 554 F.3d 1219, 1222–23 (9th
Cir. 2009). The ALJ found that
through the date last insured, the claimant had the residual
functional capacity to perform sedentary work as defined in 20
CFR 404.1567(a) except she could not climb ladders, ropes and
scaffolds. On an occasional basis, the claimant is able to climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl. In
addition, the claimant cannot perform overhead reaching with
non-dominant left upper extremity. The claimant’s residual
functional capacity includes the need to avoid concentrated
exposure to non-weather related extreme cold and extreme heat.
In addition, she needs to avoid concentrated exposure to fumes,
odors, dust, and gases. Furthermore, the claimant needs to avoid
all exposure to moving and hazardous machinery and unpro-
tected heights. In addition, the claimant is limited to work that
requires no more than frequent, not constant, depth
perception.[14]
The ALJ found plaintiff’s pain and symptom statements less than credible because
there was evidence of secondary gain, she was not always compliant with her recommended
treatment, and her statements were contrary to the medical evidence.15
13Admin. Rec. at 1443.
14Admin. Rec. at 1444.
15Admin. Rec. at 1447.
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The ALJ gave great weight16 to Dr. Kidder’s opinion.17 The ALJ gave weight18 to Dr.
Morgan’s opinion.19 The ALJ gave little weight20 to Dr. Winn’s opinion.21 The ALJ gave
little weight22 to Dr. Levy’s paragraph B opinion23 and partial weight to his functional
16Admin. Rec. at 1447.
17Dr. Kidder testified as a medical expert at the second administrative hearing. Dr.
Kidder opined that plaintiff had the residual functional capacity to occasionally lift 10
pounds; frequently lift less than 10 pounds; stand/walk for 6 hours; sit for 6 hours; had no
limitations as to pushing/pulling; could occasionally climb ramps/stairs; could never climb
ladders/ropes/scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; could
not reach overhead on the left side; vision should not be a critical part of any job; should
avoid concentrated exposure to extreme cold and heat; should avoid concentrated exposure
to fumes, odors, dust, and gases; and should avoid all exposure to hazards such as machinery
and heights. Admin. Rec. at 1478-1479.
18Admin. Rec. at 1450.
19On January 7, 2014, Dr. Morgan, who treated plaintiff’s glaucoma, opined that
plaintiff did not have significant limitations as to reading normal-sized print, working with
large objects, and avoiding normal work hazards; had significant limitations as to walking
on uneven terrain, processing visual information, and working with small objects; would
need to take a 10-minute break every 2-3 hours; and would miss less than one day per month
due to her glaucoma. Admin. Rec. at 1298-1299.
20Admin. Rec. at 1448.
21On May 16, 2013, Wandall Winn, M.D., a nonexamining source, opined that
plaintiff had mild restrictions of activities of daily living, mild difficulties maintaining social
functioning, moderate difficulties maintaining concentration, persistence, or pace, and no
repeated episodes of decompensation. Admin. Rec. at 68. Dr. Winn further opined that
plaintiff was moderately limited in her ability to maintain attention and concentration for
extended periods and in her ability to respond appropriately to changes in the work setting,
but was not otherwise significantly limited. Admin. Rec. at 71-72.
22Admin. Rec. at 1449.
23On November 25, 2009, Dr. Levy, a nonexamining source, opined that plaintiff had
(continued...)
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capacity opinion.24 The ALJ gave little weight25 to an assessment by Linda Glick,26 Dr.
Waldrup’s opinion,27 a 2002 FMLA opinion,28 and Dr. Mackie’s FMLA opinion.29 The ALJ
23(...continued)
mild restrictions of daily living, mild difficulties with maintaining social functioning,
moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of
decompensation. Admin. Rec. at 400.
24Dr. Levy opined that plaintiff as moderately limited in her ability to maintain
attention and concentration for extended periods and to respond appropriately to changes in
the work setting; and that plaintiff was “capable of complex and detailed instructions
performed at a moderate pace, of interacting with the public, co-workers, and supervisors,
and of routine and predictable tasks.” Docket No. 404-406.
25Admin. Rec. at 1448.
26On December 22, 1998, Glick, an occupational therapist, opined that a light duty
assignment was appropriate for plaintiff and that plaintiff would require a height-adjustable
standing stool, a kick stool, would need to be able to rotate jobs hourly, and could only do
computer keyboarding for up to 5 minutes at a time. Admin. Rec. at 271.
27On January 14, 2000, Dr. Waldrup completed a work restriction evaluation, in which
he opined that plaintiff could sit for 2 hours but would need a 15-minute break every two
hours, could walk for 8 hours, could not lift, bend, push, pull, or twist; could stand for 8
hours but would need a 15-minute break every 2 hours; could keyboard for 8 hours but would
need a 15-minute break every 2 hours; could perform simple grasping; could perform
repetitive wrist motion for 8 hours; could not operate or be around heavy moving equipment;
and could not work at or above shoulder level. Admin. Rec. at 278.
28On June 26, 2002, an unidentified doctor completed a FMLA statement, in which
the doctor stated that plaintiff’s fibromyalgia was “chronic”, that plaintiff was “not
incapacitated fully” but that she had “permanent impairment of [her] hand, neck, left
shoulder and low back range of motion as well as pain.” Admin. Rec. at 281.
29In December 2004, Dr. Mackie completed a FMLA statement in which he indicated
that plaintiff was unable to perform some of the essential functions of her job, but did not
indicate which ones those were. Admin. Rec. at 285.
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gave little weight30 to FNP Kutney’s opinions.31 The ALJ gave little32 weight to Dr. Ross’
opinion.33 The ALJ gave little weight to plaintiff’s GAF scores.34 The ALJ noted that an ALJ
must “ordinarily give great weight to a Veterans Administration determination of disability”
but gave plaintiff’s 70% disability determination due to major depressive disorder and PTSD
30Admin. Rec. at 1449.
31On August 25, 2013, Kutney opined that plaintiff could sit for 2 hours, walk for 2
hours, could frequently lift/carry 10 pounds; could occasionally lift/carry up to 50 pounds;
had marked limitations as to grasping, turning, or twisting objects, using fingers and hands
for fine manipulations, and using her arms for overhead reaching; that her pain, fatigue, and
other symptoms would frequently interfere with her attention and concentration; would need
to take breaks every 2 hours; was capable of dealing with low stress; would be absent from
work more than 3 times a month; and would need to avoid wetness, temperature extremes,
and humidity. Admin. Rec. at 957-961. On August 10, 2015, Kutney opined that plaintiff
could frequently lift/carry less than 10 pounds; occasionally lift/carry 10 pounds; could
stand/walk for less than one hour; could sit for less than one hour; could never/rarely grasp,
twist and turn objects; could never/rarely use hands/fingers for fine manipulation; and could
occasionally use arms for reaching overhead. Admin. Rec. at 1544-1545. Kutney further
opined that plaintiff’s pain, fatigue and other symptoms would frequently interfere with her
ability to concentrate and pay attention, that she would need unscheduled breaks throughout
the day, and that she would miss more than three days of work per month. Admin. Rec. at
1545-1546.
32Admin. Rec. at 1450.
33On February 15, 2018, Dr. Ross, a chiropractor, opined that plaintiff could sit for
less than one hour; could stand/walk for less than one hour; would need to elevate her legs
ten times a day; could frequently lift less than 5 pounds; could occasionally lift up to ten
pounds; could occasionally carry up to 10 pounds; could frequently grasp, turn, and twist
objects; could never/rarely use hands/fingers for fine manipulations; could never/rarely use
arms for reaching; would frequently have her attention and concentration interfered with
because of her pain and symptoms; would need to take a break for 20-40 minutes every hour;
and would miss more than three days of work per month. Admin. Rec. at 2592-2594.
34Admin. Rec. at 1450.
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“less weight” because “the evidence in the record does not support a finding of severe mental
impairments.”35
At step four, the ALJ found that “[t]hrough the date last insured, the claimant was
capable of performing past relevant work as a post office supervisor.”36
Thus, the ALJ concluded that plaintiff “was not under a disability, as defined in the
Social Security Act, at any time from August 1, 2009, the alleged onset date, through
December 31, 2014, the date last insured. . . .”37
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,
35Admin. Rec. at 1450-1451.
36Admin. Rec. at 1451.
37Admin. Rec. at 1452.
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weighing both the evidence that supports and that which detracts from the ALJ’s conclu-
sion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than
one reasonable 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 ALJ erred at step two in finding her mental impairments
non-severe. “An impairment or combination of impairments may be found ‘not severe only
if the evidence establishes a slight abnormality that has no more than a minimal effect on an
individual’s ability to work.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). “Step two . . . is ‘a de minimis
screening device [used] to dispose of groundless claims[.]’” Id. (quoting Smolen, 80 F.3d
at 1290). “[A]n ALJ may find that a claimant lacks a medically severe impairment or
combination of impairments only when his conclusion is ‘clearly established by medical
evidence.’” Id. (quoting SSR 85–28).
In reaching the conclusion that plaintiff’s mental impairments were non-severe, the
ALJ relied on Dr. Valette’s testimony and her opinion as to the “paragraph B” criteria.38 Dr.
Valette, a medical expert, testified that plaintiff’s mental medically determinable impairments
38Admin. Rec. at 1440-1441.
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were mood disorder due to another medical condition and PTSD,39 but that these impairments
were not severe.40 Dr. Valette opined that plaintiff had no limitations as to understanding,
remembering, or applying information; mild limitations as to interacting with others; no
limitations as to concentration, persistence, or maintaining pace; and no limitations as to
adapting or managing oneself.41 Dr. Valette testified that Dr. Curtiss’ opinions were not
consistent with the medical evidence of record because plaintiff’s “mental status is normal
throughout.”42 Dr. Valette testified that there should be recorded observations of the
symptoms that plaintiff was complaining about, but that she did not see any in the record.43
Dr. Valette testified that she does not “put a lot of weight . . . on what the claimant says.”44
In reaching the conclusion that plaintiff did not have any severe mental impairments,
the ALJ also considered the opinions of Dr. Curtiss. On December 5, 2013, Dr. Curtiss
opined that plaintiff was mildly limited in her ability to carry out simple one or two-step
instructions; was moderately limited in her ability to understand/remember simple one or
two-step instructions, sustain ordinary routine without supervision, work in coordination with
39Admin. Rec. at 1481.
40Admin. Rec. at 1483.
41Admin. Rec. at 1481-1482.
42Admin. Rec. at 1483, 1488.
43Admin. Rec. at 1488-1489.
44Admin. Rec. at 1487.
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or proximity to others without being distracted by them, interact appropriately with the
general public, ask simple questions or request assistance, get along with co-workers or peers
without distracting them or exhibiting behavioral extremes, maintain socially appropriate
behavior, adhere to basic standards of neatness and cleanliness, and set realistic goals or
make plans independently; and was markedly limited in her ability to remember locations and
work-like procedures, understand/remember/carry out detailed instructions, maintain
attention and concentration for extended periods, perform activities within a schedule,
maintain regular attendance, be punctual within customary tolerance, make simple work
related decisions, complete a normal workweek without interruptions from psychologically
based symptoms, perform at a consistent pace without an unreasonable number and length
of rest periods, respond appropriately to changes in the work setting, be aware of normal
hazards and take appropriate precautions, and travel to unfamiliar places or use public
transportation.45 Dr. Curtiss also opined that plaintiff would likely miss more than three days
of week per month.46 On April 24, 2015, Dr. Curtiss opined that plaintiff had no limitations
as to interacting appropriately with the public; moderate limitations as to understand-
ing/remembering/carrying out one-to-two step instructions, asking simple questions or
requesting assistance, and adhering to basic standards of neatness; moderate-to-marked
limitations as to carrying out detailed instructions, making simple work-related decisions,
45Admin. Rec. at 1001-1003.
46Admin. Rec. at 1005.
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accepting instructions and responding appropriately to criticism from supervisors, getting
along with coworkers or peers without distracting them, maintaining socially appropriate
behavior, setting realistic goals, and making plans independently; and marked limitations as
to remembering locations and work-like procedures, understanding/remembering detailed
instructions, maintaining attention and concentration for extended periods, performing
activities within a schedule and consistently being punctual, sustaining an ordinary routine
without supervision, working in coordination with or near others without being distracted by
them, completing a workday without interruptions from psychological symptoms, performing
at a consistent pace without rest periods of unreasonable length or frequency, responding
appropriately to workplace changes, being aware of hazards and taking appropriate
precautions, and traveling to unfamiliar places or using public transportation.47 Dr. Curtiss
also opined that plaintiff would miss more than 3 days of work per month and that her
symptoms and limitations applied as far back as July 1, 2009.48
The ALJ gave these opinions no weight because they were not supported by the
medical evidence of record.49 The ALJ cited to mental status exams in August 2009,
December 2010, and March 2013, and noted that at these exams, plaintiff was alert and
attentive, had normal and coherent thought process, no unusual thought content, and good
47Admin. Rec. at 1571. Dr. Curtiss reiterated these limitations in an April 27, 2015
letter. Admin. Rec. at 1828.
48Admin. Rec. at 1572.
49Admin. Rec. at 1442-1443.
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insight and judgment.50 The ALJ also cited to a December 2013 mental status exam that
showed that plaintiff had fair judgment, good to limited insight, impaired recent memory, no
unusual thought content, and normal and coherent thought process.51
Plaintiff first argues that the ALJ erred because he should have given controlling
weight to Dr. Curtiss’ opinions since Dr. Curtiss was a treating physician. “The medical
opinion of a claimant’s treating doctor is given ‘controlling weight’ so long as it ‘is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the claimant’s] case record.’” Revels
v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
Plaintiff argues that Dr. Curtiss’ opinions should have been given controlling weight because
they were well-supported by the medical evidence of record. Plaintiff argues that the ALJ’s
finding that Dr. Curtiss’ opinions were inconsistent with the medical evidence52 was
incorrect.
Plaintiff argues that the ALJ improperly focused on four mental status exams instead
of looking to the longitudinal record. Plaintiff points out that in the context of mental health
50Admin. Rec. at 1442.
51Admin. Rec. at 1442.
52Defendant contends that the ALJ also found that Dr. Curtiss’ opinions were
inconsistent with plaintiff’s daily activities. However, nowhere in the ALJ’s step two
discussion does the ALJ make such a finding. The only discussion by the ALJ at step two
of plaintiff’s daily activities was in connection with the “paragraph B” criteria. The ALJ
rejected Dr. Curtiss’ opinions because they were not consistent with the medical evidence
of record.
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impairments, “[c]ycles of improvement and debilitating symptoms are a common occurrence,
and in such circumstances it is error for an ALJ to pick out a few isolated instances of
improvement over a period of months or years and to treat them as a basis for concluding a
claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
Plaintiff argues that the ALJ identified some normal mental status findings in the record, but
ignored any abnormalities noted by Dr. Curtiss and other mental health providers.
Plaintiff also argues that, contrary to what the ALJ found, Dr. Curtiss’ opinions were
supported by the evidence of record. In her April 24, 2015, opinion, Dr. Curtiss noted that
her opinion was based on the following “signs and symptoms”: depressed mood, persistent
or generalized anxiety, abnormal affect (superficially socially appropriate cheerfulness),
difficulty in thinking or concentrating, poor recent memory, intrusive recollection of a
traumatic experience, recurrent panic attacks, vigilance and scanning, anhedonia, decreased
energy, motor tension, psychomotor abnormalities (retardation), social withdrawal or
isolation, and insomnia.53 Plaintiff contends that all of these signs and symptoms were
documented in treatment records.
However, only some of these signs and symptoms were recorded in the treatment
records as being observed by Dr. Curtiss or other mental health providers.54 Many of them
were self-reported by plaintiff. But, that does not mean that Dr. Curtiss’ opinions were not
53Admin. Rec. at 1831.
54See, e.g., Admin. Rec. at 653 (impaired recent memory), 849 (depressed mood and
affect), 2883 (anxiety).
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well-supported. “Psychiatric evaluations may appear subjective, especially compared to
evaluation in other medical fields. Diagnoses will always depend in part on the patient’s
self-report, as well as on the clinician’s observations of the patient. But such is the nature
of psychiatry.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). “To allow an ALJ
to discredit a mental health professional’s opinion solely because it is based to a significant
degree on a patient’s ‘subjective allegations’ is to allow an end-run around [the] rules for
evaluating medical opinions for the entire category of psychological disorders.” Ferrando
v. Comm’r of Social Sec. Admin., Case No. 10–15771, 2011 WL 3893801, at *2 n.2 (9th Cir.
Sept. 6, 2011). Yet, that is exactly what the ALJ did here.
Moreover, the ALJ basically relied on Dr. Valette’s opinion in order to reject Dr.
Curtiss’ opinions even though “the opinions of nonexamining doctors cannot by [themselves]
constitute substantial evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.’” Revels, 874 F.3d at 655 (quoting Lester v.
Chater, 81 F.3d 821, 831 (9th Cir. 1995)). The ALJ could not reject Dr. Curtiss’ opinions
based simply on Dr. Valette’s contrary opinion.
The foregoing establishes that Dr. Curtiss’ opinions should have been given
controlling weight. But even if the ALJ were not required to give those opinions controlling
weight, the ALJ still failed to give Dr. Curtiss’ opinions the appropriate weight. “When a
treating doctor’s opinion is not controlling, it is weighted according to factors such as the
length of the treatment relationship and the frequency of examination, the nature and extent
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of the treatment relationship, supportability, and consistency with the record.” Revels, 874
F.3d at 654. “Greater weight is also given to the ‘opinion of a specialist about medical
issues related to his or her area of specialty.’” Id. (quoting 20 C.F.R. § 404.1527(c)(5)). The
ALJ focused on supportability and did not mention any of the other factors when deciding
to give no weight to Dr. Curtiss’ opinions.55 The ALJ should have considered that Dr.
Curtiss had treated plaintiff since at least 2010, during which time she saw Dr. Curtiss on a
regular basis; that the nature of Dr. Curtiss’ treatment was appropriate psychotropic
medications and therapy; and that Dr. Curtiss was a psychiatrist. An ALJ errs “by failing to
apply the appropriate factors in determining the extent to which the opinion should be
credited.” Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017). Here, the ALJ did not
consider many of the factors that he is instructed to consider when deciding what weight to
give a treating physician’s opinion.
The ALJ erred in rejecting Dr. Curtiss’ opinions at step two. Dr. Curtiss’ opinions
should have been given controlling weight. In the alternative, they were at least entitled to
great weight. Dr. Curtiss’ opinions were sufficient to establish that plaintiff’s mental health
impairments would significantly limit her ability to do basic work activities. Thus, the ALJ
erred in finding that plaintiff’s mental health impairments were non-severe.
55Defendant points out that under the regulations that apply to claims filed after March
27, 2017, supportability and consistency are the “most important factors.” 20 C.F.R. §
404.1520c(a). But plaintiff’s claim was filed prior to March 27, 2017 and so the new
regulations do not apply to her claim.
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Defendant suggests that this error was harmless. “[A]n ALJ’s error is harmless where
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)). Here, the ALJ’s step two error was not harmless because the
ALJ undoubtedly would have had to include some additional functional limitations in
plaintiff’s RFC had the ALJ found plaintiff’s mental impairments severe.
Plaintiff next argues that the ALJ failed to properly consider her VA disability
determination. On February 8, 2013, plaintiff was given a 70% disability rating due to major
depressive disorder and PTSD.56 The ALJ noted that an ALJ must “ordinarily give great
weight to a Veterans Administration determination of disability” but gave plaintiff’s 70%
determination “less weight” in this case because “the evidence in the record does not support
a finding of severe mental impairments.”57 The ALJ relied on Dr. Valette’s testimony as the
basis for giving plaintiff’s VA disability rating “less weight.”58
An “ALJ [is] justified in rejecting the VA’s disability rating on the basis that []he had
evidence the VA did not, which undermined the evidence the VA did have.” Valentine v.
Comm’r Social Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). Defendant argues that the
ALJ reasonably relied on Dr. Valette’s opinion instead of the VA disability determination.
56Admin. Rec. at 1303.
57Admin. Rec. at 1450-1451.
58Admin. Rec. at 1451.
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While Dr. Valette’s opinion may have been evidence that the VA did not have, Dr.
Valette’s opinion is of little value. Dr. Valette basically relied on the fact that plaintiff had
generally normal mental status exams, but as Dr. Curtiss explained, plaintiff had the ability
to appear socially appropriate for brief periods of time.59 In addition, Dr. Valette’s
contention that she does not credit a claimant’s subjective statements60 is contrary to how the
Ninth Circuit views psychiatric evaluations. See Buck, 869 F.3d at 1049. The ALJ erred in
giving plaintiff’s VA disability rating less weight.
Plaintiff next argues that the ALJ erred as to credibility. “An ALJ engages in a
two-step analysis to determine whether a claimant’s testimony regarding subjective pain or
symptoms is credible.” Garrison, 759 F.3d at 1014. “‘First, the ALJ must determine whether
the claimant has presented objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other symptoms alleged.’“ Id. (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis, the
claimant is not required to show ‘that h[is] impairment could reasonably be expected to cause
the severity of the symptom []he has alleged; []he need only show that it could reasonably
have caused some degree of the symptom.’” Id. (quoting Smolen, 80 F.3d at 1282). “Nor
must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the
severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1282). “If the claimant satisfies the first
59Admin. Rec. at 1831; 2884.
60Admin. Rec. at 1487.
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step of this analysis, and there is no evidence of malingering, ‘the ALJ can reject the
claimant’s testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.’” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). “This
is not an easy requirement to meet: ‘The clear and convincing standard is the most
demanding required in Social Security cases.’” Id. at 1015 (quoting Moore v. Comm’r of
Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “In evaluating the claimant’s
testimony, the ALJ may use ‘ordinary techniques of credibility evaluation.’” Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Turner v. Comm’r of Social Sec., 613
F.3d 1217, 1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may consider inconsistencies
either in the claimant’s testimony or between the testimony and the claimant’s conduct,
unexplained or inadequately explained failure to seek treatment or to follow a prescribed
course of treatment, and whether the claimant engages in daily activities inconsistent with
the alleged symptoms[.]” Id. (internal citations omitted).
The ALJ found plaintiff’s pain and symptom statements less than credible for three
reasons. First, the ALJ found that there was evidence of secondary gain because plaintiff
“ended work for reasons other than disability[,]” that she retired from the post office
“voluntarily due to overwhelming frustrations. . . .”61 Second, the ALJ found that plaintiff
was not compliant with recommended treatment and mentioned her failure to comply with
her diabetic medications and care, her failure to take medication for fibromyalgia, her failure
61Admin. Rec. at 1447.
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to wear her knee brace, and her failure to take her glaucoma medication.62 Third, the ALJ
found that plaintiff’s pain and symptom statements were not consistent with the medical
evidence and cited to three treatment notes involving plaintiff’s physical impairments.63
Plaintiff argues that the ALJ erred as to credibility because he did not address her
subjective statements as to her mental impairments. Rather, plaintiff contends that the ALJ’s
credibility findings focused on issues related to plaintiff’s physical impairments.
The ALJ appears to have failed to consider plaintiff’s symptom statements as they
related to her mental impairments when assessing her credibility. That indicates that the ALJ
failed to properly assess plaintiff’s RFC. “The ALJ is required to consider all of the
limitations imposed by the claimant’s impairments, even those that are not severe.”
Carmickle, 533 F.3d at 1164. “Even though a non-severe ‘impairment[] standing alone may
not significantly limit an individual’s ability to do basic work activities, it may—when
considered with limitations or restrictions due to other impairments—be critical to the
outcome of a claim.’” Id. (quoting SSR 96–8p (1996)). Even if the ALJ had properly found
that plaintiff’s mental impairments were non-severe, the ALJ was required to consider
whether plaintiff’s medically determinable mental impairments resulted in any limitations.
This the ALJ did not do, which was error.
62Admin. Rec. at 1447.
63Admin. Rec. at 1447.
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Because the ALJ erred, the court must determine whether to remand this matter for
further proceedings or for an award of benefits. The court follows a three-step analysis to
determine whether a remand for an award of benefits would be appropriate. “First, [the
court] must conclude that ‘the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical opinion.’” Brown-Hunter v.
Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020). “Second,
[the court] must conclude that ‘the record has been fully developed and further administrative
proceedings would serve no useful purpose.’” Id. (quoting Garrison, 759 F.3d at 1020).
“Third, [the court] must conclude that ‘if the improperly discredited evidence were credited
as true, the ALJ would be required to find the claimant disabled on remand.’” Id. (quoting
Garrison, 759 F.3d at 1021). But, “even if all three requirements are met, [the court] retain[s]
‘flexibility’ in determining the appropriate remedy” and “may remand on an open record for
further proceedings ‘when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled within the meaning of the Social Security Act.’” Id. (quoting
Garrison, 759 F.3d at 1021).
A remand for benefits is appropriate here. The ALJ did not provide legally sufficient
reasons for rejecting Dr. Curtiss’ opinions. Further development of the record would not be
useful. In addition to other functional limitations, Dr. Curtiss opined that plaintiff would
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miss more than three days of work per month.64 If that opinion were given either controlling
weight or great weight, there would be no doubt that plaintiff was disabled as of her date last
insured. This is one of those “unusual case[s] in which it is clear from the record that the
claimant is unable to perform gainful employment in the national economy, even though the
vocational expert did not address the precise work limitations established by the improperly
discredited testimony[.]” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). In such
cases, a “remand for an immediate award of benefits is appropriate.”
Conclusion
The decision of the Commissioner is reversed and this matter is remanded for an
award of benefits.
DATED at Anchorage, Alaska, this 14th day of February, 2020.
/s/ H. Russel Holland
United States District Judge
64Admin. Rec. at 1005.
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