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McCarten v. Colvin

United States District Court, W.D. Washington, Seattle

August 11, 2014

JACQUELYN McCARTEN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Jacquelyn McCarten appeals the denial of her Disability Insurance Benefits application, seeking remand for an award of benefits. She contends the ALJ erred by misevaluating the medical evidence and erroneously rejecting the Global Assessment of Functioning ("GAF") scores in the record. Dkt. 15 at 1. As discussed below, the Court recommends the case be REVERSED and REMANDED for further administrative proceedings.

BACKGROUND

Following a hearing, the ALJ issued a final decision finding that since Ms. McCarten's alleged onset date of October 7, 2010, she was not disabled. Utilizing the five-step disability evaluation process, the ALJ found that bipolar disorder and alcohol abuse in remission were severe impairments that did not meet or equal the requirements of a listed impairment. See 20 C.F.R. § 404.1520; 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ also found that Ms. McCarten had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels but could only understand, remember, and carry out simple instructions; have occasional interaction with coworkers and the public; and needed a routine and predictable work environment. Tr. 30. Based on this RFC, the ALJ found Ms. McCarten could perform jobs existing in the national economy and therefore was not disabled. Tr. 35.

DISCUSSION

A. Medical Opinion Evidence

In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where contradicted, a treating or examining physician's opinion may not be rejected without "specific and legitimate reasons supported by substantial evidence in the record for so doing." Id. at 830-31 (quotation and citation omitted).

1. Dr. Tawnya Christiansen, treating psychiatrist

In March 2011, Dr. Christiansen opined Ms. McCarten had severe and marked limitations in her cognitive and social abilities. Tr. 480-81. The ALJ gave Dr. Christiansen's opinion "little weight" for several reasons. Tr. 33. Plaintiff argues these reasons are either legally insufficient or lack the support of substantial evidence.

First, the ALJ found that "Dr. Christiansen stated that medications had proved ineffective, " but that this assessment was inconsistent with Ms. McCarten's "reports of improvement with medication." Tr. 33. Substantial evidence does not support this finding. The ALJ misrepresents Dr. Christiansen's opinion, which stated: "[T]hough [Ms. McCarten] has derived some benefit from current treatments, her progress continues to be limited, with frequent resurgence of symptoms - thus, improvement is irregular, unpredictable." Tr. 481. This opinion is not inconsistent with Ms. McCarten's report-prior to her alleged onset date-that "her mood symptoms had been fairly well-controlled with lithium, " Tr. 312, or with Dr. Christiansen's treatment notes, which establish that Ms. McCarten continued to have difficulties despite some improvement with medication, see Tr. 368-87.

Second, the ALJ found that Dr. Christiansen's opinion was inconsistent with her own statement that Ms. McCarten had the ability to "attend to her personal needs, such as food, clothing and hygiene" and "read and manage her own money." Tr. 33 (citing Tr. 477-82 (Dr. Christiansen's opinion)). The ALJ fails to explain this finding, and the Court can discern no inconsistency between Dr. Christiansen's opinion that Ms. McCarten would have limitations in her ability to perform on a normal day-to-day work basis and her opinion that Ms. McCarten can attend to basic personal needs. As such, the ALJ's second reason for rejecting Dr. Christiansen's opinion is not supported by substantial evidence.

Third, the ALJ found that the medical evidence did not support Dr. Christiansen's findings. Tr. 33. Specifically, the ALJ found that Dr. Christiansen described Ms. McCarten as late for appointments, but the medical evidence showed only one missed appointment and several late arrivals. Id. As the ALJ noted, Dr. Christiansen found plaintiff had a "remarkable difficulty remembering appointments." Tr. 479. However, Dr. Christiansen did not cite this difficulty as the basis for any of the functional limitations she assessed. See Tr. 480-81. Accordingly, the Court does not find this inconsistency to be a specific and legitimate reason to reject Dr. Christiansen's opinion.

The ALJ also found that the medical evidence did not support Dr. Christiansen's opinion because "on February 16, 2011, Dr. Christiansen stated in her treatment notes that medication provided fair stability' and that the claimant's hospitalization seemed more of [an] effort to engage in a lower-stimulating environment' than truly fearing self-harm or suicide. She did not feel that the claimant met the admission criteria based on her reported symptoms." Tr. 33. In finding that medications provided Ms. McCarten "fair stability, " ALJ selectively quotes from Dr. Christiansen's treatment note, which stated that "lithium and lamotrigine seem to have provided fair stability though symptomatic relief was not optimal w/them. ... She continues to struggle with mood lability, irritability, feelings of despair at times...." Tr. 372 (emphasis added). Viewing Dr. Christiansen's chart note as a whole, the Court finds that is not inconsistent with her opinion. See Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (an ALJ may not selectively focus on aspects of the record that tend to suggest non-disability while disregarding the remainder of the medical evidence).

The ALJ's discussion of hospitalization also reflects a misinterpretation of the record. Dr. Christiansen's February 16, 2011 treatment notes indicates that Ms. McCarten was considering checking herself into a hospital, not that Ms. McCarten had been hospitalized. See Tr. 372. Furthermore, the fact that Dr. Christiansen did not believe Ms. McCarten met the criteria for hospitalization at that time does not undermine her opinion as to Ms. McCarten's functional limitations. As such, substantial evidence does not support the ALJ's finding that Dr. Christiansen's opinion is inconsistent with the medical evidence.

Fourth, the ALJ discounted Dr. Christiansen's opinion because she had only been treating Ms. McCarten for about six months. Tr. 33. In fact, Ms. McCarten saw Dr. Christiansen five times between September 2010 and March 2011 when the doctor rendered her opinion. Tr. 368, 370, 374, 379, 383, 387. Although an ALJ may consider the length of a treating relationship and frequency of visits when evaluating a medical opinion, see 20 C.F.R. § 404.1527(d), the Court finds that five visits over the course of approximately seven months establishes Dr. Christiansen's status as a treating physician and is not a specific and legitimate reason to reject her opinion.

Finally, the ALJ found that "the longitudinal record overall does not support the degree of restrictions listed in either cognitive or social factors." Tr. 33. In general, a broad statement that a medical opinion is inconsistent with the overall longitudinal record is impermissibly vague. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); Regennitter v. Soc. Sec. Comm'r, 166 F.3d 1294, 1299 (9th Cir. 1999) ("Conclusory reasons will not justify an ALJ's rejection of medical opinion."). Nevertheless, even if the ALJ explains her decision with "less than ideal clarity, " the Court must uphold it if the ALJ's "path may reasonably be discerned." Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (quotation and citation omitted). In this case, the record supports the ALJ's rejection of Dr. Christiansen's opinion of cognitive limitations. While Dr. Christiansen opined Ms. McCarten had severe limitations in her ability to understand, remember, and persist in tasks following simple instructions, Tr. 480, mental status examinations ("MSE") performed by other examining doctors routinely established that Ms. McCarten's memory and concentration were within normal limits, see Tr. 32-33 (ALJ's decision discussing the opinion evidence), 269-72 (2/24/10 MSE showing unimpaired attention, concentration, and memory; opinion of Dr. McDuffee that Ms. McCarten had no limitations in her ability to understand, remember, and follow simple instructions), 501-08 (11/21/11 MSE showing no cognitive impairments; opinion of Dr. Sakuma that plaintiff had no limitations in her ability to understand, remember, and carry out simple instructions), 571-72 (1/25/12 MSE finding some limitation in memory but generally normal concentration). Thus the Court can reasonably discern the ALJ's path to rejecting Dr. Christiansen's opinion of cognitive limitations. See Molina, 674 F.3d at 1121. The same is not true, however, for the ALJ's unexplained finding that the longitudinal record does not support Dr. Christiansen's opinion of severe and marked social limitations. After reviewing the ALJ's decision, the Court cannot determine the basis for the ALJ's finding that the longitudinal record was contradictory. As such, substantial evidence does not support this finding.

The ALJ's erroneous rejection of Dr. Christiansen's opinion of Ms. McCarten's social limitations was harmful because all of those limitations were not accounted for in the hypothetical presented to the vocational expert ("VE"). See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (a VE's testimony based on an incomplete hypothetical lacks evidentiary value to support a finding that a claimant can perform jobs in the national economy); Molina, 674 F.3d at 1115 (error is harmless where it is "inconsequential to the ultimate nondisability determination") (citation omitted). As discussed below, remand for further proceedings is the appropriate remedy for the ALJ's error. On remand, the ALJ shall reevaluate Dr. Christiansen's opinion of Ms. McCarten's limitations in her ability to communicate and perform effectively in a work setting with public contact and limited public contact, and maintain appropriate behavior in a work setting. See Tr. 481.

2. Dr. Victoria McDuffee, examining psychologist

Dr. McDuffee examined Ms. McCarten in February 2010, approximately eight months before the alleged onset date. Tr. 264-73. Dr. McDuffee opined Ms. McCarten had marked limitations in her ability to exercise judgment and make decisions, and moderate limitations in her social abilities. Tr. 269. She assessed a GAF score of 40. Tr. 268.

The ALJ gave Dr. McDuffee's opinion "some weight." Tr. 32. The ALJ rejected Dr. McDuffee's opinion of marked limitations in Ms. McCarten's ability to exercise judgment and make decisions because this opinion was based on Ms. McCarten's self-reports. Id. The ALJ accepted the moderate limitations because they were consistent with the examination and the record as a whole. Id. The ALJ also noted that Dr. McDuffee's evaluation occurred before the alleged onset date. Id.

In challenging the ALJ's treatment of Dr. McDuffee's opinion, Ms. McCarten presents somewhat contradictory arguments. On the one hand, she suggests the ALJ erred by assigning any weight to the opinion because it was rendered prior to her July 2010 psychiatric hospitalization, and the record establishes a worsening of her symptoms after the opinion. On the other hand, she argues the ALJ erred by rejecting the marked limitation in her ability to exercise judgment and make decisions. Ms. McCarten also argues the ALJ failed to address the GAF score of 40.

Ms. McCarten's first argument is not persuasive because she fails to establish the ALJ's reading of the record was unreasonable. Specifically, Dr. Sakuma's later opinion is generally consistent with Dr. McDuffee's opinion. See Tr. 501-08. The ALJ is responsible for resolving conflicts in the medical record, Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008), and when evidence reasonably supports either confirming or reversing the ALJ's decision, the Court may not substitute its judgment for that of the ALJ, Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

The Court agrees, however, that the ALJ failed to properly reject Dr. McDuffee's opinion of marked limitations in judgment and decision making. Substantial evidence does not support the ALJ's finding that Dr. McDuffee based this opinion on plaintiff's self-reports. Rather, she based her opinion on Ms. McCarten's MSE. See Tr. 269 ("She appears to have impaired practical judgment - see addendum. Thought processes are concrete which can impair her ability to think through her decisions from all sides."). Although Ms. McCarten scored well on most aspects of the MSE, Dr. McDuffee found that her insight and judgment were "poor, " her thinking processes were "moderately impaired, " and her practical judgment was "markedly impaired." Tr. 272. As such, the MSE provides objective support for Dr. McDuffee's opinion regarding Ms. McCarten's limitations in judgment and decision making.

Ms. McCarten is also correct that the ALJ erred by failing to address the GAF of 40. Although the ALJ discussed other GAF scores in the record, she failed to cite to Dr. McDuffee's assessment. See Tr. 31. A GAF score assigned by an acceptable medical source is a medical opinion as defined in 20 C.F.R. § 404.1527(a)(2), and an ALJ must assess a claimant's RFC based on all of the relevant evidence in the record, including medical source opinions. 20 C.F.R. § 404.1545(a). As such, the regulations indicate that GAF scores are relevant evidence that should be considered and can only be rejected for specific reasons.

On remand, the ALJ shall reevaluate Dr. McDuffee's opinion, including the GAF of 40.

3. Dr. James Czysz, examining psychologist

In January 2012, Dr. Czysz examined Ms. McCarten and opined that her mental health symptoms "would have a substantially negative impact on Ms. McCarten's ability to maintain sustained concentration and pace in the workplace through the course of a typical work day." Tr. 570. He also stated that she "tends to exercise very poor judgment and engage in much risk taking behavior during her manic phases which appear to be somewhat treatment refractory." Id. Although Ms. McCarten performed "reasonably well" on the MSE, Dr. Czysz found that "she chronicled a history of credible bipolar symptoms and when she is depressed, or, more likely when she is manic, she engages in remarkably poor decision making and she exercises poor judgment that has led to very negative consequences." Tr. 572. Dr. Czysz assessed a GAF score of 39 and opined, "Currently, she would not be employable in a competitive market and further job losses would be more demoralizing for her and likely further erode her self-esteem." Tr. 570.

The ALJ gave "little weight" to Dr. Czysz's opinion because he did not "provide sufficient explanations or details to support [the] broad statement" that she was unemployable, and he most likely relied on her self-reporting of her history and symptoms, given that the MSE was unremarkable.[1] Tr. 34. An ALJ may reject an opinion that is "brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). An ALJ may also reject an opinion "if it is based to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). The ALJ found Ms. McCarten less than fully credible, and she does not challenge that finding here. Nevertheless, she contends the ALJ erroneously rejected Dr. Czysz's opinion because the doctor referred to symptoms that would impair her ability to sustain concentration and pace in a competitive work environment. See Tr. 569. She also argues the ALJ improperly referred to the MSE findings because the MSE tests primarily cognitive abilities, while Dr. Czysz believed that the symptoms of Ms. McCarten's bipolar disorder would impact her functioning in a work setting. See id.

Ms. McCarten fails to establish the ALJ's reading of the record was unreasonable. See Tackett, 180 F.3d at 1098 (when the evidence reasonably supports either confirming or reversing the ALJ's decision, the court may not substitute its judgment for that of the ALJ). As Ms. McCarten acknowledges, the MSE does not support Dr. Czysz's opinion. See Tr. 571-72. And although she points to her symptoms as supporting the opinion, it is apparent that many of those symptoms were based on her self-reports. For example, Dr. Czysz noted that Ms. McCarten has "[r]emarkably poor judgment and decision making when manic, " "[m]any impulsive, destructive, and dangerous behaviors when manic, " and "[p]oor reality testing when manic; she will develop elaborate delusional systems." Tr. 569. But the MSE results do not indicate that Ms. McCarten was manic during the examination. See Tr. 571. Accordingly, substantial evidence supports the ALJ's rejection of Dr. Czysz's opinion as based on Ms. McCarten's self-reports.

4. Dr. Michael Sakuma, examining psychologist

Dr. Sakuma examined Ms. McCarten in November 2011 and opined she had moderate limitations in her ability to make judgments on simple and complex work-related decisions, interact appropriately with co-workers, and respond appropriately to usual work situations and changes in a routine work setting. Tr. 501-02. The ALJ gave this opinion significant weight because it was consistent with the testing, the medical evidence, and the non-examining doctors' opinions. Tr. 33.

Ms. McCarten argues the ALJ did not address the contrast between Dr. Sakuma's opinion and Dr. Christiansen's concurrent treatment notes showing increasing depression, anhedonia, isolation, anxiety, cutting behaviors, and transient suicidal ideation. See Tr. 513, 518, 523. She also argues the ALJ failed to consider the deterioration leading up to her subsequent hospitalization. She contends the ALJ's decision to afford this opinion the greatest weight was not based on a rational reading of the record. But as the ALJ found, Dr. Sakuma's opinion is supported by substantial evidence, namely his examination and MSE. See Tr. 33, 501-02, 506-07; Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007) ("[W]hen an examining physician provides independent clinical findings that differ from the findings of the treating physician, ' such findings are substantial evidence.'") (citation omitted). As noted above, the ALJ is responsible for resolving conflicts in the medical record, and Ms. McCarten does not establish that the ALJ's interpretation of the record was unreasonable. Accordingly, the ALJ did not commit harmful err in relying on Dr. Sakuma's opinion.

5. Non-examining source opinions

The ALJ gave significant weight to the opinions of the non-examining doctors and incorporated consistent limitations into the RFC. See Tr. 35, 76-77, 88-89. Ms. McCarten argues the ALJ erred in doing so. However, she cannot establish harmful error because the ALJ's RFC finding is also supported by Dr. Sakuma's opinion. Therefore, even if the ALJ did err, that error would not affect the ultimate nondisability determination. See Molina, 674 F.3d at 1115.

B. GAF Scores

The record includes numerous GAF scores assessed from before the amended alleged onset date in October 2010 up until shortly before the hearing in March 2012. Most of the GAF scores after October 2010 ranged from 42-50, with the exception of Dr. Czysz's GAF score of 39. See Tr. 383-87, 404-07 (9/2010-10/2010 - two GAF scores of 55 and two GAF scores of 42), 364-79 (12/2010-3/2011 - four GAF scores of 50), 513-62 (4/2011-12/2011 - nine GAF scores of 48), 570 (2/2012 - Dr. Czysz's GAF score of 39). GAF scores provide a measure for an individual's overall level of psychological, social, and occupational functioning. Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32-34 (4th ed. 2000) (DSM-IV-TR).[2] The scores "may be particularly useful in tracking the clinical progress of individuals in global terms, using a single measure." Id. at 30. A GAF range of 41-50 reflects "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. at 32.

The ALJ gave little weight to the GAF scores of 50 or less that various medical sources assessed. Tr. 31-32. The ALJ found that GAF scores are not necessarily indicative of functioning for a 12-month period; may incorporate a claimant's subjective complaints, meaning that a lack of credibility undermines the accuracy of the scores; and incorporate external factors not relevant to a disability determination, such as homelessness, unemployment, and financial hardships. Tr. 31. The ALJ also found that the GAF scores were inconsistent with Ms. McCarten's ability to complete her activities of daily living with few limitations. Tr. 32.

As a general matter, a GAF score is not dispositive of mental disability for social security purposes. See McFarland v. Astrue, 288 Fed.Appx. 357, 359 (9th Cir. 2008) (citing Revised Medical Criteria for Evaluating Mental Disorders & Traumatic Brain Injury, 65 Fed. Reg. 50746, 50764-50765 (Aug. 21, 2000) ("The GAF score does not have a direct correlation to the severity requirements in our mental disorders listings.")); see also Gutierrez v. Astrue, No. 12-cv-1390 MEJ, 2013 WL 2468344, at *19 (N.D. Cal. June 7, 2013) ("A GAF score of 50 does not necessarily establish an impairment seriously interfering with the claimant's ability to perform basic work activities."). Thus, as explained above, the regulations indicate that GAF scores are relevant evidence that should be considered and can only be rejected for specific reasons.

The ALJ's generic reasons why GAF scores should be given little weight were not valid reasons to reject the opinions out of hand. See, e.g., Vanbibber v. Colvin, No. C13-546-RAJ, 2014 WL 29665, at *2 (W.D. Wash. Jan. 3, 2014). The ALJ, however, provided one reason specific to Ms. McCarten: that the opinions were inconsistent with her ability to perform activities of daily living. See Tr. 32. Ms. McCarten's daily activities included teaching herself computer skills, working on art projects, reading, visiting the library and using their internet service, handling issues with other residents at the transitional housing unit where she lived, and seeing friends regularly. Tr. 31.

Ms. McCarten asserts this reason is legally insufficient because most of the scores were assessed by treating sources who were aware of her daily functioning and did not believe her functioning was inconsistent with the GAF scores they assessed. But an ALJ may reject a medical opinion that is inconsistent with a claimant's level of activity, Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001), and substantial evidence supports the ALJ's finding here. Specifically, GAF scores of 41-50 may reflect serious social impairment (e.g., no friends), as noted above, but the ALJ found that Ms. McCarten had friends. Although a GAF score may also reflect serious symptoms or serious impairment in occupational or school functioning, the doctors who assessed GAF scores did not explain what the scores reflected. Accordingly, the Court cannot say the ALJ was unreasonable in finding that the GAF scores were inconsistent with Ms. McCarten's activities of daily living. See Morgan, 169 F.3d at 599 ("Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.") (citation omitted). Ms. McCarten fails to establish harmful error in the ALJ's consideration of the GAF scores in the record.

C. Remand for Further Proceedings

Ms. McCarten argues the Court should credit the erroneously rejected opinion evidence as true and remand for an award of benefits. The Court has discretion to remand for further proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). Three elements must be satisfied for a court to remand for an award of benefits:

(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.

Garrison v. Colvin, ___ F.3d ___, 2014 WL 3397218, at *20 (9th Cir. July 14, 2014). The third requirement "incorporates what we have sometimes described as a distinct requirement of the credit-as-true rule, namely that there are no outstanding issues that must be resolved before a determination of disability can be made." Id. at *20 n.26. If all three requirements are satisfied, the Court must remand for an award of benefits unless "the record as a whole creates serious doubt that the claimant is, in fact, disabled...." Id. at *21.

Here, remand for further proceedings is the appropriate remedy because it is not at all clear that if the improperly rejected opinions were credited as true, Ms. McCarten would be disabled within the meaning of the Social Security Act. This is true because the VE did not testify regarding the impact of the improperly rejected functional limitations on Ms. McCarten's ability to work. See Tr. 66-67. Accordingly, the Court remands for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

CONCLUSION

For the foregoing reasons, the Court recommends that the Commissioner's decision be REVERSED and the case be REMANDED for further administrative proceedings. On remand, the ALJ should reevaluate Dr. Christiansen's opinion of social limitations and Dr. McDuffee's opinion. As necessary, the ALJ should further develop the record, revise Ms. McCarten's RFC, and proceed with steps four and five of the sequential evaluation process.

A proposed order accompanies this Report and Recommendation. Objections, if any, to this Report and Recommendation must be filed and served no later than August 25, 2014. If no objections are filed, the matter will be ready for the Court's consideration on August 29, 2014. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. Objections and responses shall not exceed twelve pages. The failure to timely object may affect the right to appeal.


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