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Schwanz v. Colvin

United States District Court, D. Oregon

September 22, 2014

TODD CHRISTOPHER SCHWANZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Lisa R.J. Porter, KP LAW LLC, Portland, OR, of Attorneys for Plaintiff.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States Attorney, United States Attorney's Office, District of Oregon, Portland, OR; Lisa Goldoftas, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Seattle, WA, of Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Todd Christopher Schwanz ("Schwanz") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act. For the reasons discussed below, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.

STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id .; see also Bray, 554 F.3d at 1226.

BACKGROUND

A. Schwanz's Application

Schwanz was born March 25, 1967 and is 47 years old. AR 30. Schwanz holds a master's degree in computer engineering, never married, and lives alone in a HUD apartment for persons with disabilities. Schwanz received a traumatic brain injury in July 2004 and stopped working in July 2005 because of symptoms he primarily attributes to his traumatic brain injury. Schwanz had previously applied for, and was denied in 2008, SSI benefits. Schwanz protectively filed another application for SSI on February 23, 2010, alleging disability beginning February 19, 2009. AR 19. The Commissioner denied Schwanz's claims initially and upon reconsideration. Id. Schwanz subsequently requested a hearing before an Administrative Law Judge ("ALJ"). Id. On February 10, 2012, the ALJ issued an unfavorable decision, finding Schwanz not disabled since the alleged onset date. AR 32.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's "residual functional capacity" ("RFC"). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id .; see also 20 C.F.R. §§ 404.1566, 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

C. The ALJ's Decision

At step one, the ALJ found that Schwanz had not engaged in substantial gainful activity since the date of application, February 23, 2010. AR 21. At step two, the ALJ identified the following severe impairments: depression; anxiety disorder, seizure disorder, alcoholism, status post trauma, and surgeries to the left wrist. AR 21. At step three, the ALJ concluded that Schwanz's impairment or combination of impairments did not meet or medically equal one of the listed impairments in the regulations. AR 21-22. At step four, the ALJ relied on the testimony of a Vocational Expert ("VE") and found that Schwanz was unable to perform any past relevant work. The ALJ found Schwanz retained the following RFC:

the claimant has the residual functional capacity to perform less than the full range of medium work.... His maximum lifting and carrying capacity is 50 pounds occasionally and 25 pounds frequently. He can never climb ladders, ropes, scaffolds. He can occasionally climb stairs. He can never balance. He can frequently stoop, kneel, crouch, and crawl. He can frequently reach, handle, finger, and feel. He should not work at heights or around heavy machinery or chemicals. He is limited to simple routine tasks. He is limited to occasional contact with coworkers and incidental contact with the public.

AR 22-23.

The ALJ considered Schwanz's testimony; the medical testimony of physicians David Gostnell, Kipp Bajaj, Britton Frome, Sharon Eder, Martin Kehrli, Bill Hennings, Joshua Boyd, and Ryan Vancura; and the lay testimony of Elizabeth Cooper, Psychiatric Nurse and Mental Health Nurse Practitioner, David Eubanks, Qualified Mental Health Associate ("QMHA"), Athena Dickau, Qualified Mental Health Professional ("QMHP"), Arnold Schwanz (Schwanz's father), and Mark Lewis (Schwanz's friend); and the testimony of a VE. AR 21-30.

At step 5, relying on testimony of the VE, the ALJ concluded that Schwanz was able to perform the "the requirements of representative unskilled occupations at the light or medium exertional level" including "hand packer, DOT #920.587-014" and "assembler, DOT #780.684-062." AR 31. The ALJ therefore determined that Schwanz was not disabled and denied his application for SSI. AR 32.

Following the ALJ's unfavorable decision, Schwanz filed an appeal on March 7, 2010 with the Appeals Council, but was denied review. AR 1. Consequently, the ALJ's decision became the final decision of the Commissioner that is subject to judicial review. Schwanz now seeks judicial review of that decision.

DISCUSSION

Schwanz argues that the ALJ erred by failing properly to: (A) evaluate the medical and lay testimony; (B) develop the record regarding Schwanz's potential cognitive disorder; (C) assess Schwanz's credibility; and (D) conduct a RFC assessment and include all applicable functional limitations.

A. Opinion Testimony

Schwanz argues that the ALJ failed properly to evaluate the medical opinions of Drs. Gostnell and Bajaj and the lay opinion testimony of Ms. Cooper.[1] The Court finds that the ALJ failed properly to address these opinions.

1. Medical Opinion Testimony

a. Legal standards

The Ninth Circuit distinguishes between three types of physicians' opinions: treating physicians, examining physicians, and non-examining physicians. The opinions of treating physicians are generally given greater weight than those of non-treating physicians and the opinions of examining physicians are generally given greater weight than those of nonexamining physicians. Garrison v. Colvin, ___ F.3d ___, 2014 WL 3397218 (9th Cir. July 14, 2014) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). A treating or examining doctor's opinion that is not contradicted by the opinion of another physician can be rejected only for "clear and convincing'" reasons. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). If a treating or examining doctor's opinion is contradicted by the opinion of another physician, the "ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quotation marks and citation omitted). The ALJ is responsible for resolving conflicts in the medical record, including conflicts among physicians' opinions. Id.

b. Consultative Examining Psychologist Dr. Gostnell

The Commissioner argues that the ALJ did not improperly ignore the opinion of Dr. Gostnell because the ALJ considered it throughout his opinion. Although the ALJ did cite to Dr. Gostnell's opinion to support certain findings, the ALJ failed specifically to address Dr. Gostnell's opinion in any detail and ignored numerous assessments and conclusions by Dr. Gostnell, including: (1) Dr. Gostnell assessed Schwanz with limitations in self-care and that Schwanz had diminished self-care abilities, noting that Schwanz appeared at the visit with "very poor" grooming and hygiene, a strong body odor, long unwashed hair and observing Schwanz's teeth in poor condition due to neglect; (2) Dr. Gostnell assessed Schwanz with limitations in his ability to understand simple instructions; (3) Dr. Gostnell found that Schwanz misunderstood simple interview questions, which had to be repeated or rephrased for him; (4) Dr. Gostnell found that Schwanz occasionally lost track of topic; and (5) Dr. Gostnell diagnosed Schwanz with cognitive disorder, not otherwise specified ("NOS"). AR 432-34. The ALJ summarily noted that Dr. Gostnell diagnosed Schwanz with a mood disorder NOS, but the ALJ omitted mention of Dr. Gostnell's diagnosis of a cognitive disorder NOS and finding that the cognitive limitations to which Dr. Gostnell opined were potentially the result of a head injury or due to a cognitive disorder.

The ALJ needed to provide, at a minimum, specific and legitimate reasons to reject Dr. Gostnell's opinions relating to Schwanz's cognitive disorder and limitations.[2] The ALJ failed to provide any reason to reject any of the opinions of Dr. Gostnell. In fact, the ALJ did not state that he was discounting any of Dr. Gostnell's opinions-the ALJ simply failed to address them. This is error.

Alternatively, the Commissioner argues that the ALJ was not required to address Dr. Gostnell's opinion because it lacked probative value. The ALJ, however, did not rely on this reason to discredit Dr. Gostnell's opinion. Indeed, the ALJ did not discredit Dr. Gostnell's opinion. The ALJ cites to Dr. Gostnell's opinion without any indication that the ALJ was discrediting the portions of Dr. Gostnell's opinion upon which the ALJ did not specifically rely. Notably, the ALJ does not address Dr. Gostnell's opinion when evaluating each of the medical opinions and lay witness evidence. Thus, the Commissioner's argument is unavailing. See Pinto v. ...


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