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Ghanim v. Colvin

United States Court of Appeals, Ninth Circuit

August 18, 2014

JASIM ABO GHANIM, Plaintiff-Appellant,
CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant-Appellee

Argued and Submitted November 7, 2013, Seattle, Washington

Page 1155

Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:11-cv-01954-BAT. Brian Tsuchida, Magistrate Judge, Presiding.


Social Security

The panel reversed the district court's judgment affirming the Social Security Commissioner's denial of an application for Disability Insurance Benefits and Supplemental Security Income.

The panel held that the weight the administrative law judge (" ALJ" ) accorded to the claimant's treating providers and the ALJ's adverse credibility determination were not supported by substantial evidence. The panel further held that these ALJ errors infected the ALJ's residual functional capacity assessment and his determination that the claimant was able to perform past relevant work. The panel remanded with instructions to the district court to remand the case to the Commissioner for further proceedings.

Chief Judge Kozinski dissented because he would find that there was sufficient evidence in the record to uphold the Commissioner's decision.

Charles W. Talbot (argued), Talbot & Associates, PS, Tacoma, Washington, for Plaintiff-Appellant.

Jenny A. Durkan, United States Attorney, Kerry Jane Keefe, Assistant United States Attorney, Lars J. Nelson (argued), Assistant Regional Counsel, David Morado, Regional Chief Counsel, Region X, and Gerald J. Hill, Assistant Regional Counsel, Social Security Administration, Seattle, Washington, for Defendant-Appellee.

Before: Alex Kozinski, Chief Judge, and Richard A. Paez and Marsha S. Berzon, Circuit Judges.


Page 1156

PAEZ, Circuit Judge.

Jasim Abo Abi Shalash Abo Ghanim appeals from the district court's judgment affirming the Social Security Commissioner's denial of his application for Disability Insurance Benefits and Supplemental Security Income. In denying Ghanim's application for benefits, the Administrative Law Judge (" ALJ" ) rejected the opinions of Ghanim's treating physician and other treating providers as to the severity of his impairments. The ALJ also found Ghanim's testimony about the severity of his symptoms not credible. On reconsideration, the Social Security Administration (" SSA" ) concluded that Ghanim was disabled after all, but determined that the onset date for his disability was March 28, 2012, rather than April 5, 2009, as Ghanim originally alleged. At issue here is only whether Ghanim is entitled to benefits for the intervening period. We hold that the weight the ALJ accorded to Ghanim's treating providers and the ALJ's adverse credibility determination are not supported by substantial evidence. We therefore reverse and remand for further proceedings.


A. Ghanim's personal and medical history

Ghanim immigrated to the United States in 1994 as a refugee from Iraq, where he had been imprisoned and tortured for two years. He worked consistently from 1994 to 2009 in a variety of jobs. In 2009, Ghanim's brother, who lived in Iraq and worked with the United States military, was killed. Ghanim was deeply affected by his brother's death; he had nightmares and trouble sleeping, became very forgetful, and frequently felt unsafe and hopeless. After his brother's death, Ghanim stopped working.

Page 1157

1. Treating providers

In July 2009, Ghanim began receiving counseling and psychiatric care, first at Highpoint Medical Clinic and then at Harborview Medical Center. At Harborview Medical Center, Ghanim met with several different medical professionals, including Christine Elizabeth Youdelis-Flores, M.D., Nina Spellman Geiger, ARNP, Lawrence McCann, LICSW, and John Blatchford, LICSW. All of these individuals met with Ghanim several times over the course of his treatment. Their treatment notes reflect both ongoing psychological impairment--including depression, difficulty sleeping, nightmares, nervousness, memory loss, and anger--and some signs of improvement--such as higher energy, higher activity levels, and brighter mood. The treatment notes also show that Ghanim was diagnosed with major depressive disorder and post-traumatic stress disorder (" PTSD" ), for which he was prescribed numerous anti-depressant and anti-anxiety medications.

In March 2010, Geiger and McCann submitted a Psychological Evaluation to the Washington State Department of Social & Health Services. The evaluation contained diagnoses of major depressive disorder and PTSD. The evaluation also noted marked cognitive and social impairment related to Ghanim's inability to manage social situations.[1] In October 2010, Dr. Youdelis-Flores and Blatchford sent a letter to Ghanim's attorney, expressing their opinion that " [d]ue to his mental illness, we feel it is highly unlikely [Ghanim] would be able to engage in meaningful adult activities or employment in the near future." In support of this opinion, they referred to his symptoms, including nightmares, intermittent sleep, low energy, and depressed mood, and the diagnoses of PTSD and major depression, recurrent, with psychotic features.

2. Examining physicians

In June 2009, Ghanim was examined by Victoria McDuffee, Ph.D., a psychologist. Ghanim reported " increasing agitation, hypervigilance, nightmares, [and] daily intrusive thoughts." Dr. McDuffee observed that Ghanim presented as " emotional[ly] labile, angry, hostile, and resentful" and that he appeared " paranoid, suspicious of others," and " extremely 'edgy.'" Dr. McDuffee administered a mental status examination, with the following results: (1) mini-mental status score: 30 (no cognitive impairments), (2) Beck depression score: 49 (severe depression), (3) Beck anxiety score: 44 (severe anxiety).[2] She identified a number of severe functional limitations, including inability to: relate appropriately to coworkers and supervisors; interact appropriately in public; respond appropriately to, and tolerate, the pressures and expectations of a normal work setting; and maintain appropriate behavior. She diagnosed Ghanim with PTSD, personality disorder, major depressive disorder, and generalized anxiety disorder.

In December 2009, at the request of Washington's Department of Disability Services, Ghanim met with Wayne C. Dees, Psy.D. Dr. Dees also administered a mental status exam. He noted that Ghanim was " generally alert and friendly throughout the evaluation, but mildly irritable at times." He also noted, however, that Ghanim's " presentation was consistent with anxious mood, and his affect was

Page 1158

blunted." He concluded that Ghanim " endorses symptoms of PTSD, including exaggerated startle, hypervigilence, fear and avoidance, intrusive thoughts, emotional numbing, and nightmares." Ghanim fared poorly on the cognitive portion of the test, and Dr. Dees concluded that he has a " severely impaired ability to learn" and " [o]verall cognitive functioning appears to be impaired." He indicated that Ghanim was able to complete " simple but not complex instructions." However, Dr. Dees thought that Ghanim's " cognitive deficits may not be as severe as he claims," and stated that " malingering is suspected based on [Ghanim's] performance during the evaluation." He did not make a definitive diagnosis of malingering, however, explaining that further evaluation was recommended before a determination could be made. He diagnosed Ghanim with depressive disorder NOS, PTSD, anxiety disorder NOS, and cognitive disorder NOS.[3]

3. Reviewing physicians

In December 2009, the state agency's medical consultant, Gerald L. Peterson, Ph.D., performed a mental residual functional capacity assessment. He determined that Ghanim's only limitation was a moderate limitation in his ability to complete a normal workday without interruption from psychologically-based symptoms. Dr. Peterson explained that Ghanim could perform " simple and complex tasks," was described as friendly and cooperative, socialized with friends and attended religious services, and was able to move and find stable employment. In February 2010, another state medical consultant, Beth Fitterer, Ph.D., reviewed Dr. Peterson's mental residual functional capacity assessment. She noted that updated medical records did not alter the previous opinion and affirmed ...

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