United States District Court, D. Oregon
A. RUSSO UNITED STATES MAGISTRATE JUDGE
brings this proceeding to obtain judicial review of the
Commissioner's final decision denying plaintiff's
application for supplemental security income benefits (SSI).
asserts disability beginning September 10, 2005 due to
bipolar disorder with psychosis. Tr. 157, 171. Plaintiff was
14 years old on her alleged onset date. Tr. 157.
hearing held on October 19, 2015, an administrative law judge
(ALJ) determined plaintiff was not disabled. Plaintiff
asserts the ALJ erred by: (1) improperly discrediting her
testimony; (2) improperly rejecting the opinion consulting
psychological examiner Dr. Scott Alvord; and (3) improperly
discrediting her great-grandmother's third-party
application for SSI, plaintiff asserted her mental state is
such that she is unable to work because she "can't
sit still," her "attention span is that of a
child," and she "can't remember things."
Tr. 180. Plaintiff further asserted she never had a job and
does not "even have the concept of being employed."
has a sparse medical history, but records indicate a suicide
attempt in January 2010 following a breakup with her then
boyfriend. Tr. 588. Plaintiff suffered a manic episode with
psychosis in March 2013. Tr. 339. She had not been taking her
prescribed medications for several years prior to the
episode. Id. At the hearing plaintiff testified the
medication, Depakote, "makes me to where I don't go
into psychosis and it stabilizes my moods." Tr. 53.
Plaintiff further testified that when she stops taking
Depakote her symptoms quickly worsen. Tr. 54.
plaintiff stated she is still unable to work when taking
Depakote because she gets discouraged and suffers from
paranoia. Tr. 55. Plaintiff testified she could "not
take on too much work so that it wouldn't become
stressful." Tr. 58. Plaintiff stated she unable to
handle even slow paced jobs full-time because there are days
she doesn't "feel like doing anything at all."
Tr. 61. Plaintiff also relates that she has panic attacks
once a month that are relieved by smoking marijuana. Tr.
found plaintiff not credible concerning the limiting effects
of her disorder. Tr. 23. The ALJ first noted there is no
basis for plaintiff's alleged onset date of September
2005 because there are no medical records even remotely close
to this date. Tr. 23. While the medical records are indeed
sparse with little in the way of documented history of
significant medical problems, the medical record does
document two suicide attempts in November 2005 and January 2010.
also noted plaintiff did not seek mental health treatment
until March 2013. However, plaintiff was a minor for much of
the period of alleged disability and, as noted, it is unclear
what medical records may exist and to what extent plaintiff
controlled her medical treatment. In addition, plaintiff
alluded to an inability to afford treatment until recently.
Tr. 54 (times when unable to afford medication); 55 ("On
Oregon Health now ... so no reason not to take
Depakote"). Because the record is unclear, it cannot be
determined if the ALJ appropriately made an adverse
credibility determination based on failure to seek medical
treatment. See Orn v. Astrue, 495 F.3d 625, 6389th
Cir. 2007) (A failure to seek treatment may be the basis for
an adverse credibility finding unless there is good reason
for the failure such as lack of funds.).
next notes that despite plaintiff's alleged inability to
work, plaintiff expressed an interest in working, applied for
full-time work, attended interviews, and performed some
"under-the-table work." Tr. 23. Plaintiff did
express interest in work. E.g., Tr. 309 (expressed
interest in starting to work). Plaintiff also applied for
work and attended interviews. E.g., Tr. 358
(applications and interviews at Dairy Queen and Subway).
Plaintiff also engaged in sporadic under-the-table work
activity. Tr. 23, 52, 555. However, this does not discredit
plaintiff's alleged inability to maintain work due to
stress. The ALJ also indicates that plaintiff may actually
lack motivation to work or is unable to obtain a job due to
inexperience and a criminal history rather than disability.
Tr. 23-24. The ALJ does cite record support for
plaintiff's criminal history. Tr. 300 (incarcerated off
and on between the ages of 15-17 for assault and drug related
offenses); Tr 318 (charges of disorderly conduct at age 22).
However, the ALJ does not cite record support for employment
rejection due to inexperience or due to a criminal record.
Moreover, the record indicates criminal mischief is a concern
relating to plaintiff's bipolar condition. Tr. 339.
also noted plaintiff's lack of mental health counseling
and the effectiveness of her medication in stabilizing her
symptoms. Tr. 24. While the record does indicate medication
effectively prevented severe psychotic episodes and
stabilized her mood, plaintiff testified that she still
suffers from paranoia, is unable to handle the stress of
"too much work," and suffers from panic attacks.
Tr. 55, 58, 65. The record is unclear as to plaintiff's
lack of counseling as plaintiff stated, "I've had
counseling all my life so it's basically you start to
hear the same things over and over again." Tr. 65. The
record is ambiguous as to whether plaintiff's medication
controls her bipolar condition sufficiently to enable her to
work. There is also ambiguity as to whether
plaintiff is unable to work due to her disorder, or her lack
of motivation, or other factors not related to her disorder.
Therefore, it cannot be determined if the ALJ's findings
are supported by substantial evidence.
next notes that despite allegations of disability, plaintiff
obtained her GED, attended community college, and had the
stamina to play video games. Tr. 25. However, it is unclear
how obtaining a GED or playing video games translates to an
ability to work or otherwise discredits plaintiff's
asserted inability to work full-time. In addition, while the
record indicates plaintiff "passed some of her first
exams" of cosmetology school, she stopped going because
she was "too overwhelmed." Tr. 418,
Again, the ALJ's findings are not supported by
substantial evidence based on the current record.
Accordingly, a remand is necessary to address the ambiguity
concerning plaintiff's credibility.
B.Dr. Scott ...