United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
Rickie Lee Wier, brings this action for judicial review of
the Commissioner of Social Security's decision denying
his application for Disability Insurance Benefits. This Court
has jurisdiction under 42 U.S.C. §§ 405(g) and
22, 2012, Wier filed an application for Disability Insurance
Benefits, alleging disability as of June 17, 2005 through his
date of last insured, December 31, 2010. Wier was denied
initially upon application. After a hearing and supplemental
hearing, an Administrative Law Judge (“ALJ”)
determined that Wier was not disabled and denied his claim.
Wier now contends that the ALJ erred 1) in weighing the
medical opinion of three treating psychiatrists and two
examining psychiatrists, 2) in failing to give clear and
convincing reasons for rejecting Wier's testimony, and 3)
in failing to prove that Wier retains the ability to perform
other work in the national economy. Because the Commissioner
of Social Security's decision was based on improper
reasons for discounting medical opinions and Wier's
testimony, the case is REMANDED for a proper evaluation of
the medical evidence in accordance with this opinion and a
recalculation of Wier's residual functional capacity.
reviewing court shall affirm the decision of the Commissioner
of Social Security (“Commissioner”) if her
decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“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.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, the district court must
review the administrative record as a whole, weighing both
the evidence that supports and detracts from the decision of
the Administrative Law Judge. Davis v. Heckler, 868
F.2d 323, 326 (9th Cir. 1989).
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920. If the
claimant satisfies his burden with respect to the first four
steps, the burden then shifts to the Commissioner with regard
to step five. 20 C.F.R. § 404.1520. At step five, the
Commissioner's burden is to demonstrate that the claimant
is capable of making an adjustment to other work after
considering the claimant's Residual Functional Capacity
(“RFC”), age, education, and work experience.
concluded that Wier was not disabled. First, the ALJ found
that the claimant's date of last insured was December 31,
2010. Tr. 19. At step one, the ALJ found that the claimant
had not engaged in substantial gainful activity since the
alleged onset date of June 17, 2005. Tr. 19. At step two, the
ALJ found that the claimant had four severe impairments:
adjustment disorder, depression, post-traumatic stress
disorder, and personality disorder. Tr. 19. The ALJ found
that Wier's headaches were not a severe impairment
because they had been resolved with treatment. Tr. 20. At
step three, the ALJ found that Wier's impairments or
combination of impairments did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Tr. 20.
to step four, the ALJ found that Wier's RFC enabled him
to perform a full range of work at all exertional levels but
with the nonexertional limitations of no public contact, no
teamwork assignments, and no strict hourly production quota.
determining the RFC, the ALJ assigned weight to medical
opinions from more than eleven doctors that treated,
examined, or reviewed Wier during the course of his treatment
and application for benefits.
The ALJ's Decision
January 18, 2003, Wier experienced a traumatic event. While
working his normal route as a public transit bus driver, a
passenger boarded his bus and pointed a gun at Wier for a
period of time before jumping off the bus. After this
traumatic event, Wier suffered from insomnia, headaches, and
significant anxiety. Wier started seeing Dr. Boyd, who
provided him with therapy treatments. Early in his treatment,
Dr. Boyd advocated for Wier to undergo cognitive behavioral
therapy (CBT) and for Wier to transition back to work in
January 2004. Tr. 524. Over the course of treatment, Dr. Boyd
assessed multiple Global Assessment of Functioning (GAF)
scores, which ranged from a high of 64 in December 2003 to a
low of 49 in October 2005. Tr. 26 The ALJ afforded partial
weight to these GAF scores and found that 1) they were
generally consistent with the longitudinal medical record, 2)
Dr. Boyd had a long treating relationship with Wier, 3) GAF
scores are not very reliable regarding a person's overall
mental functioning and account for medical and socio-economic
factors not directly related to mental functioning, and 4)
the scores were remote in time and varied from date to date.
after his treatment with Dr. Boyd, Wier also received
treatment from Dr. Dillon. Dr. Dillon provided on opinion
regarding Wier in January 2004, finding that Wier had a GAF
of 55, could gradually return to work, and should continue
psychiatric medicine adjustments. Tr. 27. In June 2004,
during which time Wier had returned to work, Dr. Dillon found
that Wier had a GAF of 55-60 and that he continued to suffer
from considerable symptoms. Tr. 27. One year later, on June
6, 2005, Dr. Dillon found Wier to have a GAF of 45-50. Tr.
854. The ALJ gave partial weight to Dr. Dillon's opinions
finding that they generally tracked the longitudinal medical
evidence, but that they were for a relatively remote period
of time and were tailored to the Mental Health Impairments
under the State of Washington's Industrial Insurance Act.
Tr. 27. Regarding the last point, the ALJ found that the
Washington system “requires application of a general
rule versus [a] case by case assessment of functional
impact.” Tr. 27. More specifically, once making a
categorical determination under the Industrial Insurance Act,
a patient is presumed to have certain functional limitations,
even if the underlying symptoms only support the overall
categorical determination but not necessarily all of
the associated functional limitations.
next considered treating psychiatrist Dr. Weimer. Dr. Weimer
treated Wier for approximately 2 years. In December 2007, Dr.
Weimer found Wier to have a GAF score of 50 and diagnosed
Wier with PTSD and major depressive disorder. Tr. 27. The ALJ
gave great weight to the diagnosis but little weight to the
GAF score because the low score was not consistent with the
longitudinal record “as the client exhibited depression
and anxiety, but no hallucinations, delusions, or suicidal
ideation.” Tr. 27.
the ALJ considered treating psychiatrist Dr. Martin. During
the course of his treatment, Dr. Martin found that Wier had
moderate limitations that would impact working including
remembering locations, following work-like procedures,
carrying out simple instructions, maintaining attention, and
making simple work related decisions. Tr. 27. Dr. Martin
found that Wier had marked limitations in the ability to work
in coordination with others, to complete a normal work day,
and to perform at a consistent pace. Tr. 27. Regarding social
interaction, Dr. Martin found Wier to have moderate
limitations to ask simple questions and maintain socially
appropriate behavior, including personal hygiene. Tr. 27. Dr.
Martin also found Wier to have marked limitations in
interacting with the general public, in accepting
instructions and criticism from supervisors, and in getting
along with coworkers or peers. Tr. 27. Lastly, in regards to
adaptation, Dr. Martin found Wier to have moderate
limitations in responding to changes in the work setting,
taking precautions with work hazards, and setting goals or
planning. Tr. 28. Dr. Martin found Wier to have marked
limitations with respect to traveling in unfamiliar places or
using public transportation. Tr. 28.
gave partial weight to Dr. Martin's opinion. Tr. 28. The
ALJ found that the limitations identified by Dr. Martin only
precluded public work, not all kinds of work. Tr. 28. The ALJ
also discounted Dr. Martin's finding that Wier was not
capable of work because that decision is reserved to the
Commissioner. Tr. 28. The ALJ noted that Dr. Martin said
“his May 2013 opinion covered the entire treatment
period from 2009 forward, a period in which the objective
records noted that the claimant repeatedly fluctuated between
improvement and symptomatic relapse.” Tr. 28.
discounting the opinions of the treating physicians, the ALJ
gave great weight to the reviewing physician, Dr. Nance. Tr.
28. Dr. Nance reviewed Wier's full history and ultimately
assessed his work limitations as either mild or moderate,
with the exception of finding that Wier had a marked
limitation in interacting appropriately with the public. Tr.
28. Dr. Nance found that Wier had “mild restriction to
activities of daily living; moderate difficulties with social
functioning; moderate issues with maintaining concentration,
persistence or pace; and mild extended-duration episodes of
decompensation.” Tr. 28 (internal citation omitted).
The ALJ gave great weight to Dr. Nance's opinion because
1) it was consistent with the longitudinal record, 2) was
based on a review of the entire record, and 3) considered the
impact of Wier's conditions on his ability to perform
work in general, not just as a bus driver. 28.
analyzing the reports of the treating and reviewing
physicians, the ALJ considered five consultative examiners
that had examined Wier at various points in his treatment.
Dr. Reagan examined Wier in September of 2008 and assessed a
GAF of 50-60. The ALJ gave great weight to this opinion
because it was “well supported by objective diagnostic
testing, his trained observations, an impartial analysis of
the evidence of record, and a well-reasoned
conclusion.” Tr. 28-29.
discussed two consultative examiners together: Dr. Early and
Dr. Powell. Dr. Early examined Wier in August 2007, Tr. 839,
and assessed a GAF score of 45, Tr. 845. Dr. Early believe
that it was unlikely that Wier would be able to maintain
meaningful employment as a result of his psychological
disabilities. Tr. 845.
Powell examined Wier on September 29, 2009, Tr. 959, and
assessed a GAF score of 50, Tr. 966. Dr. Powell thought this
GAF score appropriate because Wier was “severely
depressed” and has “suicidal ideation and
irritability.” Tr. 966. Dr. Powell diagnosed Wier with
PTSD and chronic, severe depression. Tr. 966. Dr. Powell
determined that Wier was not currently capable of working,
and because the impairment had existed for over 6 years, Dr.
Powell opined “there is a very good likelihood that it
could be permanent.” Tr. 967.
gave partial weight to the opinions of Dr. Early and Dr.
Powell. The ALJ found that the opinions were generally
consistent with the longitudinal medical evidence but that
they were “remote in time, having occurred in
2003” and “were tailored to . . . the State of
Washington's Industrial Insurance Act.” Tr. 29.
next considered a consultative exam by Dr. Wahl, which
occurred on December 30, 2013. Tr. 1176. Dr. Wahl found Wier
to only have mild and moderate limitations regarding ability
to work, Tr. 1179-80, and found Wier to have a current GAF of
60, Tr. 1178.The ALJ gave great weight to Dr. Wahl's
opinion because it was consistent with the longitudinal
record, consistent with the reviewing doctor, Dr. Nance, and
was based on an examination of Wier. Tr. 30.
then considered consultative examiner Dr. Forsyth, a state
agency psychological consultant at the initial review level,
whose opinion was affirmed at the reconsideration level by
Dr. Kennemer. Tr. 30. Dr. Forsyth overall found mild to
moderate limitations in work capacity. Tr. 30. The ALJ gave
little weight to these opinions because Dr. Forsyth
“did not adequately accommodate the claimant's
impairments in combination” and because the opinions
were only based on file review and not the additional
evidence produced during the hearing. Tr. 30.
addition to the medical evidence, the ALJ also considered and
subsequently discounted Wier's testimony regarding his
impairments. Tr. 25. The ALJ found Wier's testimony to
not be credible for two reasons: 1) because Wier's
testimony was not consistent with the objective medical
evidence, which included periods of improvement, and because
Wier did not follow through in participating in CBT treatment
as recommended, and 2) because Wier's testimony regarding
intact daily activities was at least partially inconsistent
with what he reported to his doctors, including the number of
hallucinations he experienced, and daily living activities
that he participated in, such as preparing meals and driving
a car, and social activities that he participated in, such as
hunting and fishing. Tr. 25. After considering the above
medical opinions and Wier's testimony, the ALJ moved on
to step four.
four, the ALJ considered if Wier can perform past relevant
work, as it is either generally performed in the national
economy or as it was actually performed previously by Wier.
Tr. 30. The ALJ found that Wier's past relevant work was
his job as a bus driver. Tr. 30. Relying on the vocational
expert, the ALJ found that because of Wier's residual
functional capacity, Wier cannot perform any of his past
relevant work, either generally in the national economy or as
actually performed. Tr. 31.
five, the ALJ considered Wier's residual functional
capacity, age, education, and work experience to determine if
a work adjustment could be made. Tr. 31. In consultation with
a vocational expert (VE), the ALJ found that there were jobs
that exist in significant numbers in the national economy
that Wier could have performed, which include occupations
such as a cleaner, laundry worker, and packager. Tr. 32.
Because Wier had the capacity to perform these jobs even with
his nonexertional limitations, the ALJ found Wier to be
“not disabled” for purposes of the Social
Security Act. Tr. 32.
Weight Assigned to Treating Psychiatrists
challenges the weight assigned to his three treating
psychiatrists, Drs. Dillon, Weimer, and Martin. For the
reasons below, I agree with Wier that the ALJ erred in
discounting the three treating psychiatrists.