United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
Roxanne Fondell seeks review of the denial of her
applications for Supplemental Security Income and Disability
Insurance Benefits. She contends the ALJ erred by (1)
evaluating two mental conditions together as one severe
impairment; (2) failing to associate any physical limitations
to the severe impairment of fibromyalgia; (3) finding her
capable of working at the light exertional level rather than
the sedentary level or less; (4) improperly rejecting lay
witness evidence; and (5) relying on vocational expert
testimony that did not satisfy the Commissioner's burden
at step five, failing to require the VE to provide proof of
her testimony at the hearing, and preventing Fondell's
counsel from cross examining the VE. Dkt. 10. The Court
REVERSES the Commissioner's final
decision and REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
Fondell is currently 52 years old, has a high school
education, and has worked as a hand packager, book binder,
industrial truck operator, sausage maker, and construction
worker. Tr. 52, 78, 356. In December 2013, she applied for
benefits, alleging disability as of July 2, 2013. Tr. 356,
358. After her applications were denied, the ALJ conducted a
hearing and, on August 31, 2016, issued a decision finding
Ms. Fondell not disabled. Tr. 20-38. The Appeals Council
denied Ms. Fondell's request for review, making the
ALJ's decision the Commissioner's final decision. Tr.
the five-step disability evaluation process,  the ALJ found
that Ms. Fondell had not engaged in substantial gainful
activity since the alleged onset date; she had the following
severe impairments: anxiety disorder (including posttraumatic
stress disorder (PTSD)), depressive disorder, fibromyalgia
syndrome, degenerative disc disease of the cervical spine and
lumbar spine, and status-post left rotator cuff repair; and
that these impairments did not meet or equal the requirements
of a listed impairment. Tr. 25. The ALJ found that Ms. Fondell
had the residual functional capacity to perform light work
except that she could stand and/or walk for 4 hours out of 8
hours and sit for 6 hours out of 8 hours; she could
frequently climb ramps and stairs but never climb ladders,
ropes, or scaffolds; she could occasionally balance, stoop,
kneel, crouch, and crawl; she could not perform overhead
reaching with the non-dominant left upper extremity; she
would need to avoid concentrated exposure to moving machinery
and unprotected heights; she should avoid concentrated
exposure to extreme cold. Tr. 27. The ALJ found that Ms.
Fondell was unable to perform her past work, but there were
jobs in significant numbers in the national economy that she
could perform. Tr. 36-37. The ALJ therefore found Ms. Fondell
not disabled. Tr. 38.
Anxiety disorder and PTSD
Fondell argues that the ALJ erred at step two by combining
two separately diagnosed mental conditions-anxiety disorder
and PTSD, each with their own set of symptoms-into one severe
impairment, causing limitations to be left out of the
residual functional capacity finding. Dkt. 10 at 3. She
points to two examining doctors' diagnoses of PTSD and
associated symptoms and argues that the ALJ erred in giving
their opinions little weight. Id. at 4-5.
two, where the claimant bears the burden of establishing that
she has a medically determinable severe impairment or
combination of impairments, is a “de minimis
screening device to dispose of groundless claims.”
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996). Even if an ALJ erroneously finds an impairment to be
non-severe, the error is harmless if the ALJ properly
considers the limitations caused by the impairment at the
later steps. Lewis v. Astrue, 498 F.3d 909, 910 (9th
the ALJ did not find PTSD to be non-severe, but instead
considered it to be “included” within Ms.
Fondell's anxiety disorder. The mere fact that the ALJ
considered one disorder to be included within another does
not itself establish a step-two error. Both disorders fall
under the category of anxiety disorders in the Social
Security listings and the DSM-IV. The ALJ found that both Ms.
Fondell's anxiety disorder and PTSD were medically
determinable severe impairments, and considered whether Ms.
Fondell's impairments met or equaled listing 12.06, the
appropriate listing for all anxiety disorders, including
PTSD. Thus the issue turns on Ms. Fondell's assertion
that the ALJ improperly excluded limitations caused by her
PTSD in evaluating her residual functional capacity. This
argument is based on the ALJ's giving little weight to
the opinions of two examining doctors, Dr. Jorgenson and Dr.
general, the ALJ should give more weight to the opinion of a
treating doctor than to that of a non-treating doctor, and
more weight to the opinion of an examining doctor than to
that of a non-examining doctor. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1996). Where it is not contradicted
by another doctor, the ALJ may reject a treating or examining
doctor's opinion only for “clear and convincing
reasons.” Id. at 830-31. Where contradicted,
the ALJ may not reject a treating or examining doctor's
opinion without “specific and legitimate reasons”
that are supported by substantial evidence in the record.
Id. at 830-31 (quoting Murray v. Heckler,
722 F.2d 499, 502 (9th Cir. 1983)). An ALJ does this by
setting out a detailed and thorough summary of the facts and
conflicting evidence, stating her interpretation of the facts
and evidence, and making findings. Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must
do more than offer her conclusions; she must also explain why
her interpretation, rather than the treating doctor's
interpretation, is correct Orn v. Astrue, 495 F.3d
625, 632 (9th Cir. 2007) (citing Embrey v. Bowen,
849 F.2d 418, 421-22 (9th Cir. 1988)).
Jorgenson, M.D., examined Ms. Fondell in May 2014 and
diagnosed PTSD, chronic, with panic attacks, and major
depressive disorder, moderate, recurrent. Tr. 615. Dr.
Jorgenson opined that Ms. Fondell could perform simple and
repetitive tasks, but would have more difficulty with
detailed and complex tasks. Tr. 616. She found some evidence
of concentration and memory impairment, which Dr. Jorgensen
opined was related to Ms. Fondell's level of anxiety.
Id. She opined Ms. Fondell could accept instructions
from supervisors but would have significant difficulty
interacting with coworkers and the public. Id. Dr.
Jorgenson opined that Ms. Fondell would not be able to
maintain regular attendance in the workplace due to her lack
of sleep schedule, could not perform a normal workweek
without significant interruption from her psychiatric
condition, and would not deal well with the usual stress
encountered in a competitive work environment. Id.
She assigned a global assessment of functioning score (GAF)
of 43, indicating serious symptoms or a serious impairment in
social, occupational, or school functioning. Id.;
Am. Psychiatric Ass'n, Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV), 34 (4th ed. text rev. 1994).
gave little weight to Dr. Jorgenson's opinion, noting
that Dr. Jorgenson was a one-time examining source and did
not review treatment notes from Ms. Fondell's therapist,
Dr. Rechel, whose opinion the ALJ gave more weight. Tr. 35.
The ALJ also found that Dr. Jorgenson's opinion was
inconsistent with her examination findings, noting that while
Dr. Jorgenson stated Ms. Fondell had a restricted affect and
depressed/anxious mood, she was appropriately dressed, wore
makeup, was polite and cooperative, with good eye contact, no
psychomotor agitation or retardation, linear and logical
thought processes, and no signs of suicidal/homicidal
ideation or psychosis. Id. The ALJ found that while
Ms. Fondell showed some deficits on mental status testing,
Dr. Jorgenson interpreted the results as still consistent
with the ability to perform simple and repetitive tasks.
Id. The ALJ found that Dr. Jorgenson's
conclusion that Ms. Fondell could not work appeared to rely
on her anxiety and mood complaints, but the record showed
that her symptoms improved with medication, they were not as
severe as described, and her complaints were inconsistent
with treatment notes, which regularly showed normal mood and