United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
Michael S. brings this action for judicial review of the
Commissioner of Social Security's
(“Commissioner”) decision denying his application
for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles
II and XVI of the Social Security Act (“the
Act”). This court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c). For the reasons that follow,
the Commissioner's final decision is REVERSED and this
matter is REMANDED for further proceedings consistent with
was 37 years old on his alleged onset date and 43 years old
at the time of his administrative hearing. Tr. 368,
He has a tenth-grade education and, until 2009, had a
consistent work history as a carpenter. Tr. 388, 544. In
September 2009, Plaintiff was hospitalized for psychosis. Tr.
403, 646. On March 19, 2013, Plaintiff was civilly committed
to the Lane County Mental Health Division because he was
“suffering from a mental disorder, [and was] a danger
to others . . . for a period not to exceed 180 days.”
Tr. 508; see also Tr. 646.
thereafter, Plaintiff applied for DIB and SSI on March 29,
2013, alleging disability beginning August 6, 2009. Tr. 166.
Plaintiff alleged disability due to schizophrenia, psychosis,
paranoia, and other functional psychotic disorders.
See Tr. 398-99, 400, 410. Both claims were denied
initially and upon reconsideration. Tr. 166, 398-99, 420-21.
Plaintiff timely requested a hearing before an Administrative
Law Judge (“ALJ”) and appeared for a hearing on
August 28, 2015. Tr. 166, 360-96. The ALJ denied
Plaintiff's applications in a written decision in
September 2015. Tr. 166-77. Plaintiff sought review from the
Appeals Council, which was denied, rendering the ALJ's
decision the final decision of the Commissioner. Plaintiff
now seeks judicial review.
reviewing court shall affirm the Commissioner's decision
if the 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 of
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, a court reviews the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. See20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2012). The burden of proof rests upon the
claimant at steps one through four, and with the Commissioner
at step five. Id; Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step
five, the Commissioner must 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. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If
the Commissioner fails to meet this burden, then the claimant
is disabled. Id. 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. Id; see also
Bustamante, 262 F.3d at 953-54.
present case, the ALJ found that Plaintiff was not disabled.
At step one, although the ALJ found that Plaintiff had
engaged in substantial gainful activity in 2010 and 2012,
there was a continuous 12-month period after 2012 that the
ALJ's decision evaluated. Tr. 168-69. At step two, the
ALJ found Plaintiffs history of schizophrenia a severe
impairment. Tr. 169. At step three, the ALJ found Plaintiff
did not have an impairment or combination of impairments that
met or equaled the requirements of the listings. Tr. 170; 20
C.F.R. Part 404, Subpart P, Appendix 1.
to step four, the ALJ determined that Plaintiffs RFC allowed
a full range of work at all exertion levels with the
following limitations: [Plaintiff] is limited to simple,
repetitive, routine tasks that involve no more than
occasional interaction with co-workers or the general public.
Tr. 171. At step four, the ALJ found that Plaintiff was
unable to perform his past relevant work as a carpenter. Tr.
175. At step five, the ALJ found that, based on Plaintiffs
age, education, work experience and RFC, jobs existed in
significant numbers in the national economy such that
Plaintiff could sustain employment despite his impairments.
Tr. 176. Specifically, the ALJ found Plaintiff could perform
the representative occupations of: mail clerk, Dictionary
of Occupational Titles (“DOT”) #209.687-026;
information router, DOT #222.587-038; and
electronics worker, DOT #726.687-010. Tr. 176. As a
result, the ALJ concluded that Plaintiff was not disabled
within the meaning of the Act. Tr. 177.
contends the ALJ erred in four respects. First, he argues the
ALJ failed to supply germane reasons for rejecting the
opinion of Plaintiff s mental health treatment providers.
Pl.'s Op. Br. 6-14. Second, Plaintiff contends the ALJ
failed to provide clear and convincing reasons to reject his
subjective symptom testimony. Id. at 14-16. Third,
Plaintiff asserts the refusal to grant his request for a
psychological consult constituted a failure to develop the
record. Id. at 16-17. Finally, Plaintiff argues the
ALJ failed to meet his burden at step five. Id. at
17-18. I address each contention in turn.
Mental Health Treatment Providers
first contends that the ALJ improperly discounted the opinion
testimony of Bonny Barr, psychiatric-mental health nurse
practitioner (“PMHNP”), and Benjamin Yoder,
qualified mental health associate (“QMHA”), who
co-signed a functional assessment of Plaintiff in July 2015
(the “Barr-Yoder opinion”). See Tr.
1204-13. In the assessment, the mental health professionals
diagnosed Plaintiff with schizophrenia and assessed his
prognosis as “poor.” Tr. 1212. They further
assessed that Plaintiff was, inter alia, markedly
limited in his ability to: understand and remember detailed
instructions; carry out detailed instructions; maintain
concentration for extended periods; perform activities within
a schedule and maintain regular attendance; sustain an
ordinary routine without special supervision; and complete a
normal workday without interruptions from psychologically
based symptoms. Tr. 1210-11. Finally, they opined that
Plaintiff met the paragraph C criteria of Listing 12.03:
Schizophrenic, Paranoid and Other Psychotic Disorders. Tr.
1213; see also 20 C.F.R. § Pt. 404, Subpt. P,
App. 1 (effective Aug. 12, 2015 through May 23,
2016). At the hearing, the ALJ conceded that, if
accepted, the opinion would compel a finding of disability
under the Act. Tr. 393. Ultimately, the ALJ assigned
“little weight” to the Barr-Yoder opinion. Tr.
time of the ALJ's decision, the opinions of
Plaintiff's mental health providers were considered
“other medical sources.” Dale v. Colvin,
823 F.3d 941, 943 (9th Cir. 2016); see also 20
C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (effective
September 3, 2013 through March 26, 2017). “Other
Sources” cannot establish the existence of a medically
determinable impairment. SSR 06-03p, available
at2006 WL 2329939, at *2. However, “depending on
the facts of the case . . . an opinion from a medical source
who is not an ‘acceptable medical source' may
outweigh the opinion of an ‘acceptable medical
source,' including the opinion of a treating
source.” Id. at *5. An ALJ considers several
factors when evaluating the opinion of such sources,
including: (1) length of relationship and frequency of
contact; (2) consistency with other evidence; (3) quality of
the source's explanations; (4) any specialty or expertise
related to impairment; and (5) any other factors tending to
support or refute the opinion. See SSR 06-03p; 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ may
nevertheless reject an “other source” opinion if
the ALJ provides “germane reasons” for doing so.
Lambert v. Colvin, No. 3:16-cv-00512-MC, 2017 WL
3234385, at *3 (D. Or. July 31, 2017) (citing Nguyen v.
Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)).
found the Barr-Yoder opinion was “problematic for
multiple reasons.” Tr. 173. First, the ALJ took issue with
the fact that the opinion's onset date “pre-date[d]
the commencement of [Barr and Yoder's] treating
relationship by four years.” Id. The ALJ noted
that the lack “of firsthand clinical observation”
from 2009 to 2013 made “the factual basis for their
conclusions” unclear. Tr. 173. The Commissioner argues
this was proper because “‘[a]fter the fact'
opinions are not reliable.” Def.'s Br. 6 (citing
Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.
1984)). However, the Ninth Circuit later clarified that an
ALJ may not reject an opinion simply because it assesses
limitations prior to the provider's treating
relationship. See Lester v. Chater, 81 F.3d
821, 832 n.10 (9th Cir. 1995), as amended (Apr. 9,
1996) (“Vincent . . . does not stand for the
proposition that the Commissioner is entitled to reject [an]
opinion, merely because the onset date of disability was
before the first date on which the psychologist saw the
claimant.”). Indeed, Lester explained that the
“[d]iagnosis of a claimant's condition can
properly, of course, occur after the onset of the
impairment.” Id. (citations omitted). Further,
the ALJ's rejection of Plaintiff's mental health
treatment providers because they did not personally observe
Plaintiff from 2009 through 2013 is particularly puzzling
given the fact the ALJ assigned “significant
weight” to the State agency consultants who
never personally observed Plaintiff. See
Lester, 81 F.3d at 832 (“the ALJ noted that
Dr. Taylor's conclusions were based on ‘limited
observation' of the claimant. While this would be a
reason to give less weight to Dr. Taylor's opinion than
to the opinion of a treating physician, it is not a reason to
give preference to the opinion of a doctor who has
never examined the claimant.” (emphasis in
original)); see also Knight v. Berryhill,
2017 WL 3953950, at *5 (E.D. Cal. Sept. 8, 2017). As such,
the fact that a portion of the Barr-Yoder opinion
“predated” the mental health professionals'
treating relationship was not a germane reason to reject the
also rejected the Barr-Yoder opinion because past
“treatment records did ‘not corroborate the level
of psychological disturbance cited by Mr. Yoder and Ms.
Barr.'” Def.'s Br. 8 (citing Tr. 173). The ALJ
cited a chart note, stating that “[j]ust two months
after [Plaintiffs] involuntary commitment, he told a
counselor that he believed his medications were
‘helpful.'” Tr. 173 (citing Tr. 810).
Significantly, the ALJ's citation is to a chart note not
written by either PMHNP Barr or QMHA Yoder. See Tr.
811. Moreover, although Plaintiff did state at the
appointment he “believe[d] his medications [had been]
helpful, ” an ALJ may not selectively rely on isolated
treatment notes; rather, medical opinions “must be read
in context of the overall diagnostic picture” they
draw. Holohan v. Massanari,246 F.3d 1195, 1205 (9th
Cir. 2001) (“That a person . . . makes some improvement
does not mean that the person's impairments no longer
seriously affect her ability to function in a
workplace.”). At the same appointment, Plaintiff also
explained “this whole mental health illness thing has
been tough over the past couple of years” and that he
was “scared” to attempt to “work again
after landing in the hospital after going to back to
work.” Tr. 810. Indeed, just a week and a half later,
QMHA Yoder listed as a treatment goal to “[d]evelop and
use a medication regimen . . . [to] decrease the impact of
[Plaintiffs] paranoia from ‘severe' to
‘moderate[.]'” Tr. 811 (emphasis added).
A longitudinal goal of reducing Plaintiffs paranoia from
“severe” to “moderate” over the
course of a calendar year does not undermine the conclusions
of PMHNP Barr and QMHA Yoder; nor does the other unremarkable
treatments notes the ALJ cites. Hawver v. Colvin,
No. 3:15-cv-00896-SI, 2016 WL 3360956, at *5 (D. Or. June 10,