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Dykes v. Berryhill

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

November 22, 2017

JEFFREY D. DYKES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Jeffrey Dykes proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda, this matter is REMANDED for further proceedings.


         Plaintiff was born on XXXX, 1966.[1] He reached the tenth grade of high school, attending special education classes, did not obtain his GED, and worked in a variety of different jobs. (AR 36-37, 71-72, 584-86.)

         Plaintiff protectively filed his SSI application on October 5, 2009, alleging disability as of October 1, 2001. (AR 154.) The application was denied initially and on reconsideration.

         On June 16, 2011, ALJ Catherine Lazuran held a hearing, taking testimony from plaintiff and a vocational expert (VE). (AR 31-81.) In a decision dated August 26, 2011, ALJ Lazuran denied plaintiff's claim. (AR 604-13.) Plaintiff timely appealed and the Appeals Council denied review (AR 619), making the ALJ's decision the final decision of the Commissioner.

         Plaintiff requested review in this Court and the parties stipulated to a remand. (AR 624-41.) The Appeals Council vacated the decision and remanded to an ALJ. (AR 643-45.) Among other issues identified, the Appeals Council indicated any evidence relied on from any prior claim(s) for disability benefits must be made part of the record and proffered to the claimant.[2]

         ALJ Jo Hoenninger held a hearing on January 22, 2015, taking testimony from plaintiff. (AR 892-949.) In another hearing on October 29, 2015, the ALJ took testimony from a VE. (AR 580-600.) ALJ Hoenninger, in a decision dated December 10, 2015, concluded plaintiff had not been under a disability since the October 5, 2009 application date. (AR 503-24.) See 20 C.F.R. § 416.335 (SSI is not payable prior to the month following the month of the application).)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on May 18, 2016 (AR 486-88), and plaintiff appealed to this Court.


         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).


         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the October 5, 2009 application date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe plaintiff's degenerative disc disease with lumbar strain, chronic obstructive pulmonary disease (COPD), and major depressive disorder with psychotic features. Step three asks whether a claimant's impairments meet or equal the criteria of a listed impairment. The ALJ found plaintiff's impairments did not meet or equal a listing.

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform medium work, with the following limitations: lift, carry, push, and/or pull up to thirty pounds occasionally and up to twenty pounds frequently; stand and/or walk one hour at a time, up to five hours total in an eight-hour workday; sit without limitation; frequently stoop, kneel, crouch, and crawl; understand and remember simple, but not detailed instructions; sufficient concentration, persistence, and pace to complete simple, routine tasks in two-hour increments for normal workday and workweek; would likely need additional supervision and encouragement during the first few weeks of a job, but not thereafter; and should not work around the general public, but can work around a small number of coworkers. The ALJ found insufficient information to make a finding about past relevant work at step four.

         If a claimant demonstrates an inability to perform past relevant work, or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs, such as work as a laboratory helper, hand packer, auto detailer, recycler/reclaimer, and price marker.

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in relying on evidence not in the record, in evaluating medical opinions and his testimony, in assessing the RFC, and at step five. He requests remand for further administrative proceedings. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Medical Opinions

         Plaintiff challenges the ALJ's assessment of numerous medical opinions. Social Security regulations distinguish between the different types of sources offering medical opinions. “Acceptable medical sources” include, for example, licensed physicians and psychologists, while other non-specified medical providers, such as nurse practitioners or therapists, are considered “other sources.” 20 C.F.R. §§ 416.902, 416.913, and Social Security Ruling (SSR) 06-03p (rescinded effective March 27, 2017).[3]

         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). The record in this case contained contradictory physician opinions. The ALJ could reject the contradicted opinion of a treating or examining physician only with “‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The record also contained opinion evidence from other sources. The ALJ could assign less weight to the opinions of other sources, Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996), and discount the evidence by providing reasons germane to each source, Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (cited sources omitted).

         A. Dr. Donna Johns

         Dr. Donna Johns conducted a psychological examination in June 2009. Dr. Johns assessed a Global Assessment of Functioning (GAF) score of 35, [4] marked impairment in social functions, and moderate impairment in day-to-day activities/concentration, persistence, and pace. (AR 268.)

         The ALJ gave little weight to this opinion. She stated Dr. Johns “explicitly based” the GAF on a factor - plaintiff's “economic situation” - having no bearing on the disability analysis. (AR 516.) Overall, the opinion appeared to be based on plaintiff's self-reports and presentation, and plaintiff was not a credible historian. Notably, when examined by Dr. Donald Ramsthel that same month, plaintiff presented with no memory, tracking, or understanding deficits.

         Plaintiff notes Dr. Johns identified “economic problems” under “Axis IV”, not the GAF score at “Axis V.” (AR 269.) The Commissioner observes that GAF scores nonetheless include consideration of factors not relevant to the disability analysis, such as the death of a family member or inadequate finances.[5]

         “Axis IV [of the Multiaxial Assessment system] is for reporting psychosocial and environmental problems that may affect diagnosis, treatment, and prognosis of mental disorders (Axes 1 and II).” Diagnostic and Statistical Manual of Mental Disorders 31 (4th ed. 2000) (DSM-IV-TR). “A psychosocial or environmental problem may be a negative life event, an environmental difficulty or deficiency, a familial or other interpersonal stress, an inadequacy of support or personal resources, or other problems relating to the context in which a person's difficulties have developed.” Id. Axis V, the GAF scale, “is for reporting the clinician's judgment of the individual's overall level of functioning.” Id. at 32. “A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). It is based on either an individual's symptoms or his functional impairments, whichever is lower. DSM-IV-TR at 32-33. Axis V calls for a rating “with respect to only psychological, social, and occupational functioning”, and evaluators are not to include “‘impairment in functioning due to physical (or environmental) limitations.'” Id. at 32.

         Dr. Johns could have considered plaintiff's economic or other problems at Axis V. However, because she provided no explanation for the GAF score (see AR 269 (“Axis V: GAF=35”)), she did not “explicitly” base it on a factor having no bearing on the disability analysis. In any event, and as discussed below, the ALJ elsewhere in the decision provided specific and legitimate reasons for declining to assign value to any GAF scores in the record.

         The most recent version of the DSM does not include a GAF rating for the assessment of mental disorders. DSM-V at 16-17 (5th ed. 2013). While the Social Security Administration (SSA) continues to receive and consider GAF scores from “acceptable medical sources” as opinion evidence, a GAF score cannot alone be used to “raise” or “lower” someone's level of function, and provides “only a snapshot opinion.” Administrative Message 13066 (“AM-13066”). Unless the reasons behind the rating and the applicable time period are clearly explained, a GAF score does not provide a reliable longitudinal picture of the claimant's mental functioning for a disability analysis. Id.

         Here, consistent with AM-13066, the ALJ described the GAF scores in the record as highly subjective ratings, varying from one practitioner to another, providing a snapshot on the day of the assessment, unable to alone predict whether a claimant has the ability to sustain employment, and of limited utility in the disability assessment. (AR 521.) The ALJ noted many of the scores ranged between 51 and 60, reflecting only moderate symptoms or difficulties, and that, in 2015, consultative psychological examiner Dr. Todd Bowerly assessed a GAF of 65, [6] reflecting only mild symptoms or difficulty. The ALJ reasonably found the variations in GAF scores over time “appears to be related to the presentation of the claimant at any given assessment and is highly dependent on the claimant's self-reports of functioning.” (Id.)

         The ALJ also properly considered inconsistency in plaintiff's presentation to Drs. Johns and Ramsthel. See Morgan v. Commissioner of the SSA, 169 F.3d 595, 603 (9th Cir. 1999) (ALJ appropriately considers inconsistencies between physicians' reports). Plaintiff rejects this reasoning given that Dr. Ramsthel assessed his physical impairments and is not a psychiatrist. However, whatever his area of expertise, it remains that Dr. Ramsthel observed normal behavior, memory, tracking, and conversational understanding only a week after plaintiff presented as impaired in these same areas in a psychological evaluation. (AR 267-68, 282.)

         The remaining question is whether the ALJ reasonably concluded Dr. Johns based her opinion on plaintiff's self-reports and presentation. An ALJ may reject a physician's opinion if 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, 169 F.3d at 602). “However, when an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162-63 (9th Cir. 2014) (ALJ “offered no basis” for conclusion medical opinions were based more heavily on self-reports where letter and evaluation discussed treating providers' “observations, diagnoses, and prescriptions, in addition to . . . self-reports.”)

         Dr. Johns' report provides some support for the ALJ's conclusion. She assessed marked impairment in social functioning “as evidenced by isolative behaviors that exclude family members and only has one friend which is his girlfriend with whom he lives.” (AR 268.) She pointed to reported constant auditory hallucinations as the primary cause of plaintiff's inability to engage in sustained work-related activities.

         Dr. Johns' report also reflects consideration of her own findings. She found moderate impairment in day-to-day activities indicated by plaintiff's inability to engage in any sustained activities or use any persistent concentration. (Id.) The mental status examination (MSE) conducted reflects a number of pertinent observations and findings, including mild psychomotor agitation; behavioral distraction with frequent inability to respond to questions regarding personal information and infrequent, hesitant eye contact; flat affect; confused content of thought with evidence of moderate levels of hallucinations; tangential speech, slow-paced, with noticeable latency; moderate impairment of immediate memory, evidenced by inability to complete three-numeral digits span; moderate impairment in concentration, evidenced by unsuccessful serial threes, inability to spell “world” backwards, and difficulty staying focused on conversation; moderate impairment in abstract thinking, evidenced by inability to interpret glass houses proverb; and impaired judgment and insight as a result of distractibility. (AR 267-68.)

         The Court, on balance, finds the ALJ's assessment of Dr. Johns' opinion to lack the support of substantial evidence. On remand, the ALJ should clarify any basis for rejecting the GAF ...

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