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Wier v. Berryhill

United States District Court, D. Oregon

April 9, 2018

RICKIE LEE WIER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          OPINION AND ORDER

          Michael J. McShane United States District Judge

         Plaintiff, 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 1383(c)(3).

         On May 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.

         STANDARD OF REVIEW

         A 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).

         DISCUSSION

         The 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. Id.

         The ALJ 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.

         Prior 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. Tr. 21.

         In 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.

         I. The ALJ's Decision

         On 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. Tr. 26.

         Shortly 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.

         The ALJ 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.

         Next, 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.

         The ALJ 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.

         After 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.

         After 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.

         The ALJ 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.

         Dr. 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         In 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.

         At step 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.

         At step 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.

         II. Weight Assigned to Treating Psychiatrists

         Wier 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.

         a. Dr. ...


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