Gurnett v. Colvin
Gurnett v. Colvin
Opinion of the Court
DECISION AND ORDER
Michael Scott Gurnett filed an application for Disability Insurance Benefits (“disability insurance”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the
Defendant filed an answer to the complaint and an answering brief in opposition.
I. STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned unless it either is not supported by substantial evidence or is based upon legal error.
II. DETERMINING DISABILITY
The Act provides for the payment of disability insurance to individuals who have contributed to the Social Security program and who suffer from a physical or mental disability.
[IJnability to engage in any substantial gainful activity by reason of any medically determinable physical or mental*1189 impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.14
The Act further provides:
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), Awork which exists in the national economy® means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.15
The Commissioner has established a five-step process for determining disability within the meaning of the Act.
Step 1. Determine whether the claimant is involved in “substantial gainful activity. ” The ALJ concluded Mr. Gurnett had not engaged in substantial gainful activity since October 11, 2007.
Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. A severe impairment significantly limits a claimant’s physical or mental ability to do basic work activities, and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month duration requirement. The ALJ determined Mr. Gurnett has the following severe impairments: Horner’s syndrome, degenerative disk disease of the cervical spine, left shoulder impingement, mild cognitive impairment, and anxiety disorder.
Step 3. Determine whether the impairment is the equivalent of a number of
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is assessed.
Step 4. Determine whether the impairment prevents the claimant from performing work performed in the past. At this point, the analysis considers the claimant’s RFC and past relevant work. If the claimant can still do his or her past relevant work, the claimant is deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Mr. Gurnett is capable of performing his past relevant work as a Night Manager/Desk Clerk, DOT No. 238.367-038,
Step 5. Determine whether the claimant is able to perform other work in the national economy in view of his or her age, education, and work experience, and in light of the RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. Although the ALJ could have ended his decision at step four given his conclusion there, he continued to step five. Based on the testimony of a vocational expert, the ALJ determined there are
III. BACKGROUND
Mr. Gurnett was born in Arizona in 1958 and is currently 58 years old.
Since October 2007, Mr. Gurnett has not engaged in significant employment.
Beginning in 2002, Mr. Gurnett’s worked as a night manager at a hotel. It was while working there, in December 2002, that Mr. Gurnett witnessed the killing of a customer.
Mr. Gurnett filed a worker’s compensation claim concerning his injuries related
In 2007, Mr. Gurnett worked as a restaurant server at several restaurants.
Shortly thereafter, at a routine eye exam, an optometrist immediately referred Mr. Gurnett to an ophthalmologist who queried whether Mr. Gurnett suffered from partial Horner’s syndrome.
Prior to the neurosurgeon’s referral, Mr. Gurnett filed a new worker’s compensation claim regarding the 2007 head trauma.
While rehabilitating from the artery dissection caused by the blunt trauma to his head, Mr. Gurnett received treatment from a physiatrist,
In 2009, another neurosurgical IME was conducted at the request of the insurance provider for the 2007 head trauma worker’s compensation claim.
Mr. Gurnett states he avoids crowds to run errands and limits his infrequent driving to off-peak times in order to feel less vulnerable and reduce panic attacks.
Mr. Gurnett claims that his disabilities include Horner’s Syndrome; stenosis of the carotid arteries; degenerative disc disease of the cervical spine with moderate to se
IV. DISCUSSION
The Court construes Mr. Gurnett’s appeal to raise the following six issues: (1) the ALJ committed legal error when discounting Mr. Gurnett’s treating source opinions and giving greater weight to non-treating source opinions; (2) the ALJ should not have relied on the opinions of Dr. William or Dr. Vincent—two doctors who conducted EIMEs—because each of them had been previously disciplined by state medical boards; (8) the ALJ incorrectly discounted the opinion of his former employer, Attorney Steven Constantino, regarding Mr. Gurnett’s inability to work as an office assistant; (4) the ALJ incorrectly assessed Mr. Gurnett’s credibility by finding that his statements about the intensity, persistence, and limiting effects of his impairments were unsupported by substantial evidence; (5) the ALJ made factual errors in his decision; and (6) the ALJ created a hostile and intimidating atmosphere at the evidentiary hearing and is generally biased against claimants seeking disability benefits.
(1) Weight of Medical Opinions
“Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s].”
Thus, generally, a treating source’s opinion should be given the most weight. Indeed, if the treating source’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence” in the record, that opinion will be given controlling weight.
Applying these factors means that “[i]n many cases, a treating source’s medir cal opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.”
Doctors do not always agree on all matters, and the ALJ is responsible for determining credibility and resolving conflicts and ambiguities in medical testimony.
The SSA also permits a claimant to provide evidence from non-physician sources to show the severity of an impairment and how it affects a claimant’s ability to work, including evidence from a nurse practitioner, physicians’ assistant, or therapist.
In this case, the ALJ detailed certain medical opinion evidence in the administrative record and included the weight he gave to various medical sources. The ALJ did not give “great weight” to nearly all of Mr. Gurnett’s medical providers, and in many instances gave their opinions no weight at all. On this topic, the Court interprets Mr. Gurnett’s complaint to mean that he disputes: (1) the ALJ’s reliance on the state agency medical and psychological non-examining consultants instead of his doctors, who currently treat him and some of whom he had previously requested the SSA use if consultative examinations were deemed necessary;
The Commissioner responds that the ALJ provided legally sufficient reasons for discounting each of Mr. Gurnett’s treating source’s opinions and favoring the opinions that the ALJ found were consistent with the record evidence as a whole.
For clarity, the Court lists the medical providers whose records are included in the administrative record:
After the 2002 homicide trauma, Mr. Gurnett was treated by the following medical providers: (1) Dr. Ha, psychiatrist, and (2) Stephanie Warnock, L.C.S.W., beginning in 2005. And he was examined, but not treated, by the following doctors for this incident: (1) Dr. Levine; (2) Dr. Glass, psychiatrist; and (3) Dr. Fuller, orthopedic surgeon, each of whom conducted an EIME.
Following the 2007 head trauma, Mr. Gurnett was treated by two main groups of doctors, some of whom overlap. The groups are based on time frame. Immediately following the head trauma Mr. Gur-nett was treated by: (1) Dr. Brinkerhoff, optometrist; (2) Dr. Rosen, ophthalmologist; (3) Dr. Tolbert, neurosurgeon; (4) Dr. Hadley, physiatrist; (5) Dr. Spaulding, primary care provider; (6) Anne Ver Hoef, certified speech-language pathologist; (7) Mary Margaret Hillstand, adult nurse practitioner (“A.N.P.”) specializing in neurology; (8) Dr. Baldauf, cardiologist; and (9) Dr. Ryan, orthopedic surgeon. There are also a few treatment notes from Ms. Warnock, L.C.S.W., that were last dated November 1, 2007.
Since 2011, Mr. Gurnett has been treated by the following practitioners, most of whom worked at one location under an integrated health model: (1) Dr. Shirley Fraser, neurologist; (2) Dr. Rachad Ray-
Lastly, Mr. Gurnett was examined, but not treated, by the following doctors for the 2007 head trauma: (1) Dr. Craig, clinical neuropsychologist; (2) Dr. Williams, neurosurgeon; (3) Dr. Vincent, neurosurgeon; and (4) Dr. Barrington, chiropractor. The first three doctors conducted EIMEs.
As the discussion above indicates, an ALJ should generally accord the greatest weight to opinions of a treating source, less weight to the opinions of an examining source, and the least weight to opinions of a non-examining source.
(A) Mr. Gumett’s Treating Source’s Opinions
Cleary Donovan, Psy.D., Michelle Ro-thoff, M.D., Rachad Rayess, M.D., and Kathy Chastain, A.N.P.
The administrative records shows Dr. Rothoff treated Mr. Gurnett beginning in November 2011,
Dr. Donovan’s professional opinions of Mr. Gurnett are throughout her treatment records; but the ALJ mentions her only once in his decision. He refers to her when citing to statements reported by Mr. Gur-nett to Dr. Donovan regarding his activities of daily life.
Dr. Rothoffs opinions mostly relate to 2011.
Dr. Rayess diagnosed Mr. Gumett with PSTD and psychotic disorder NOS.
The ALJ’s decision did not mention Ms. Chastain’s opinions that Mr. Gumett is bipolar
The Court finds the ALJ erred in not addressing at all either Dr. Donovan’s opinions regarding her treatment of Mr. Gurnett or any of Ms. Chastain’s opinions, and by ignoring most of the opinions expressed by Dr. Rayess. The ALJ is required to “evaluate every medical opinion it receives”; but the ALJ did not discuss and apparently did not consider any of the
One of Dr. Donovan’s opinions appears to have been presented through Dr. Ro-thoff, who completed a form at Dr. Donovan’s request.
Regarding Dr. Rayess’s opinions, the ALJ considered only one and ignored all the others. In the same document containing the opinion to which the ALJ gave “considerable weight,”
Ms. Chastain is a nurse practitioner, and thus is not qualified to “provide evidence to establish an impairment.”
An ALJ’s legal errors are subject to the harmless error test.
Shirley Fraser, M.D.
Dr. Fraser, a neurologist, treated Mr. Gurnett after he was referred to her by Dr. Rothoff.
The ALJ references one opinion by Dr. Fraser that she made on January 23, 2013; he rejected it because it was “based upon [Mr. Gurnett’s] unreliable subjective reports” of such “neurological events” and thus he gave her opinion “no weight.”
The Court finds the ALJ erred in failing to address all the opinions of Mr. Gurnett’s treating neurologist. The ALJ’s implication that Dr. Fraser, a licensed neurologist, is unable to accurately assess her patient’s conditions without being deceived by malingering is not well-taken. More importantly, contrary to the ALJ’s assertion that the opinion was based on Mr. Gurnett’s subjective reports, Dr. Fraser made personal observations about Mr. Gurnett that include objective evidence of his wasting, atrophy, stiffness, weakness, and poor movement.
The ALJ may reject the opinion of a treating source only for “clear and convincing reasons supported by substantial evidence.” The reason the' ALJ gave for rejecting Dr. Fraser’s opinion is neither convincing nor supported by substantial evidence. This error was not harmless. On remand, the ALJ is directed to specifically address each of Dr. Fraser’s opinions and determine what weight to give each. Because Dr. Fraser was a treating source, her opinion is entitled to deference. If the ALJ seeks to reject Dr. Fraser’s opinions, he must set out a “detailed and thorough summary of the facts and conflicting clinical evidence, stat[e] his interpretation thereof, and mak[e] findings.”
Marshall Tolbert, M.D.
Dr. Tolbert is a neurosurgeon who performed a cerebral angiography on Mr. Gurnett in November 2007 because of the left internal carotid artery dissection caused by the 2007 head trauma. Dr. Tol-bert initially planned to treat the dissection aggressively with angioplasty and stent placement due to the “near complete occlusion of his artery,”
Dr. Tolbert continued to treat Mr. Gur-nett following the surgery. In February 2008, Dr. Tolbert restricted Mr. Gurnett from “chiropractic manipulation” and “activities with high impact to cervical region, such as snowmachining, ATV riding.”
In August 2008, Dr. Tolbert determined that the left internal carotid artery dissection had completely healed, that he would continue to proscribe Plavix to Mr. Gur-nett for one year, and that there were no physical restrictions from his standpoint beyond “avoid[ing] activities [placing him] at high risk for significant trauma to the head or neck, such as downhill skiing” and “avoid[ing] chiropractic manipulation.”
The ALJ found that- Dr. Tolbert’s opinion related to the restrictions he placed on Mr. Gurnett from engaging activities with “high impact” to the cervical region such as snow-machining or ATV riding was not supported by a rationale and thus gave it “little weight.”
The Court finds the ALJ erred in giving Dr. Tolbert’s opinion little weight. Even if the opinion of Dr. Tolbert—a treating source—does not meet the standard for controlling weight, his opinion is still entitled to deference. The extent of that deference is to be determined relative to several factors—among them, the length, frequency, nature, and extent of the treatment relationship. Dr. Tolbert treated Mr. Gur-nett over the course of several years, and the ALJ must give consideration to that relationship. As a specialist in neurosurgery, and one who performed a cerebral angiograph on Mr. Gurnett with the intent to proceed with an angioplasty and stent placement, the restriction placed on Mr. Gurnett following the surgery does not need extensive explanations.
This error was likely harmless, however, because the ALJ did not consider such high-impact type jobs as viable for Mr. Gurnett’s work options. Indeed, the ALJ limited Mr. Gurnett’s RFC from concentrated exposure to excessive vibration.
Carl E. Rosen, M.D.
Dr. Rosen, an ophthalmologist, treated Mr. Gurnett immediately after the 2007 head trauma, when he was referred by Mr. Gurnett’s optometrist. Dr. Rosen continued to treat Mr. Gurnett annually until at least 2013.
The Court finds the ALJ erred in rejecting Dr. Rosen’s opinion regarding the light conditions in which Mr. Gurnett could work. Dr. Rosen was one of Mr. Gurnett’s treating sources. The ALJ must account for the nature, extent, length, and frequency of the treatment relationship. The basis for the opinion appears to be the information gleaned during the treatment relationship; if the ALJ is unsure of the basis for then he must “conduct an appropriate inquiry.”
This error may well be harmless, however, because the vocational expert who testified as to what jobs a hypothetical person, with Mr. Gurnett’s impairments, could perform did not include office-type settings. On remand, however, the ALJ is directed to incorporate the lighting conditions expressed by Dr. Rosen into Mr. Gurnett’s RFC, absent other substantial evidence to the contrary.
Shawn Hadley, M.D.
Dr. Hadley, a physiatrist, began treating Mr. Gurnett in June 2008, after he was referred to her by Dr. Tolbert.
The ALJ gave Dr. Hadley’s prediction “considerable weight” because it was consistent with her recorded examination findings in her initial physiatric consultation conducted in June 2008. The ALJ noted that Dr. Hadley had treated Mr. Gurnett for over a year when she made the prediction.
The Court finds the ALJ erred by considering only Dr. Hadley’s prediction of Mr. Gurnett’s future physical capacities related to work. First, the ALJ cannot select only one piece of information and ignore the rest of the related information or the context surrounding it.
Anne Ver Hoef, S.L.P.
Anne Ver Hoef, S.L.P., worked with Mr. Gurnett from September 2008 until September 2010.
The ALJ rejected Ms. Ver Hoefs opinion regarding Mr. Gurnett’s ability to return to work as a waiter as conclusory and gave it no weight.
The ALJ erred in rejecting wholesale Ms. Ver Hoefs opinion and the Commissioner is mistaken that Ms. Ver Hoef is not qualified to render a medical opinion. Although the ALJ correctly states that it is the Commissioner’s responsibility to determine whether someone is disabled—the ALJ cannot simply dismiss two years’ worth of treatment records and the opinions contained therein without explanation. Moreover, although statements made by
On remand, the ALJ is directed to evaluate all of Ms. Ver Hoefs opinions using the appropriate and required factors.
And although Mr. Gurnett has not claimed he suffers from a speech or language impairment, many treating doctors have observed how challenging it is to have a linear, concise, and direct dialogue with him.
(B) Examining and Non-Examining Sources’ Opinions
“Generally,” the ALJ will “give more weight to opinions from [a claimant’s] treating sources,” even if the treating source opinion is not given controlling weight.
Larry Levine, M.D., Paul Williams, M.D., Ronald Vincent, M.D.
Dr. Levine conducted an EIME of Mr. Gurnett in August 2007. At that time, Dr. Levine was unable to make any diagnosis and had little by way of opinions, beyond the need for conducting MRIs of Mr. Gur-nett’s spine.
Dr. Williams conducted two EIMEs of Mr. Gurnett, one in 2007 and one in 2008. The 2007 EIME was conducted to determine whether cerebral angioplasty was necessary. Dr. Williams concurred with the medical interpretation of Mr. Gurnett’s injury and the recommended course of treatment.
The ALJ gave Dr. Williams’s opinion that Mr. Gurnett has a permanent restriction against lifting greater than 50 pounds on an occasional basis only “limited weight.”
Dr. Vincent conducted an EIME in September 2009, again at the behest of the insurance company for Mr. Gurnett’s former employer.
Dr. Dennis, the state psychological consultant, conducted a review of Mr. Gur-nett’s medical records and opined that Mr. Gurnett had difficulty concentrating. Dr. Dennis also noted evidence in the medical records indicating Mr. Gurnett did not have difficulties with his activities of daily living.
The ALJ gave considerable weight to Dr. O’Brien’s opinion that Mr. Gurnett could “stand and/or walk for a total of about 6 hours in an 8-hour workday; sit for a total of about 6 hour[s] in an 8-hour workday; occasionally climb ladders, ropes or scaffolds; and must avoid ‘constant’ overhead reaching bilaterally.”
Having concluded above that the ALJ made non-harmless legal errors in his evaluation of some of Mr. Gurnett’s treating source’s opinion, the Court need not reach the issue of whether the ALJ erred in evaluating the examining and non-examining sources’ opinions at this time. Upon remand, the ALJ is directed to reconsider these opinions, according to each the requisite weight as indicated by the regulations and Ninth Circuit precedent.
(2) Examining Physician Opinions by Disciplined Doctors
Mr. Gurnett next argues that the ALJ erred in relying on EIME’s conducted by two different doctors who have both been disciplined by state medical boards. He has provided disciplinary records for both Dr. Paul C. Williams and Dr. Ronald L. Vincent, each of whom trained in neurosurgery. The Commissioner argues that neither doctor’s disciplinary action has bearing on this case.
The ALJ did not err in considering the opinions of either doctor. Thé EIMEs were conducted in states where the doctors were licensed by that state’s medical board, Dr. Williams in Oregon and Dr. Vincent in Washington. The doctors’ prior disciplinary records do not completely undermine their medical opinions, even if those records may be considered in deter
(3) Lay Opinion of Mr. Constantino
“ ‘[CJompetent lay witness testimony cannot be disregarded without comment’ and ‘in order to discount competent lay witness testimony, the ALJ must give reasons that are germane to each witness.’ ”
In a thoughtful letter, Mr. Gurnett’s former boss, Steven Constantino, Esq., articulates his impression of Mr. Gurnett’s performance as an office assistant. Mr. Constantino was Mr. Gurnett’s employer for approximately six months while Mr. Gurnett was studying to become a paralegal through the worker’s compensation rehabilitation program. Mr. Constantino hired Mr. Gurnett to work in his law office as an office receptionist/administrative assistant. When hiring him, Mr. Constan-tino was aware of Mr. Gurnett’s head trauma, prolonged absence from the workforce, and lack of previous experience in clerical work.
Mr. Constantino states in his letter, “from the outset it was evident that Mr. Gurnett had difficulty concentrating and focusing on his task at hand” and that Mr. Gurnett was unable to retain or apply instructions. They tried breaking down simple tasks into a series of “small carefully defined steps” that Mr. Gurnett strived to complete to perfection, but the perfection became a “near obsession” causing delays in his efficiency. Mr. Constantino stated that Mr. Gurnett became anxious and somewhat confused with slight day-to-day deviations from a learned routine. He struggled with multi-tasking and prioritizing between competing obligations. And despite six months at the job, Mr. Gurnett “never achieved the level of independence, efficiency, or performance” Mr. Constanti-no “expects from an entry level clerical staff after a few weeks.” Mr. Constantino opined that Mr. Gurnett should not attempt to compete in the labor market for clerical jobs in the private sector.
The ALJ gave “limited weight” to this letter because there was “no indication Mr. Constantino is a health care professional” and his opinions “must be based on observing the claimant and thus, based heavily on the claimant’s presentation and effort in the work place.” The ALJ emphasized what he found to be a lack of objective and clinical evidence in the administrative rec
The Commissioner mirrors the ALJ’s sentiments, contending Mr. Constantino’s observations were merely based on Mr. Gurnett’s presentation and effort. And since the ALJ found Mr. Gurnett to lack credibility, the Commissioner maintains that the ALJ could necessarily discount Mr. Constantino’s opinion.
The Court finds the ALJ erred in according only “limited weight” to Mr. Con-stantino’s opinion, as he did not give reasons that were germane to this witness when rejecting what appears to be competent evidence. Mr. Constantino’s letter describes how he worked very closely with Mr. Gurnett, trying different approaches in an effort to skill-build in the area of receptionist/administrative assistant for half a year to no avail.
As the ALJ erred in his assessment of the clinical data by improperly discounting the opinions of Mr. Gurnett’s treating sources, the purported inconsistency with objective data is not a valid basis for disregarding Mr. Constantino’s opinion—an opinion which, the Court notes, appears to be quite consistent with many medical opinions concerning Mr. Gurnett.
On remand, the ALJ is instructed to consider Mr. Constantino’s letter or give reasons germane to him as to why it should be disregarded.
(4) Credibility Assessment of Mr. Gur-nett
The ALJ is charged with determining credibility, resolving conflicts in
The Ninth Circuit explained that in giving “specific, clear and convincing” reasons, the ALJ is required to “specifically identify the testimony [from a claimant] she or he finds not to be credible and ... explain what evidence undermines [that] testimony”; “[g]eneral findings are insufficient.”
Here, the ALJ found that Mr. Gurnett’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; but that his “statements concerning the intensity, persistence and limiting effects of these symptoms” were not entirely credible.
Mr. Gurnett responds that being over-reactive is not the same thing as exaggerating.
The Court declines to address this issue at this time. Because the case is being remanded to the ALJ for further proceedings to address the opinions of Mr. Gur-nett’s treating sources, the ALJ may find that Mr. Gurnett’s statements regarding the intensity, persistence and limiting effects of his symptoms are credible. The Court notes that the ALJ has not found that Mr. Gurnett is malingering. Indeed, most treating sources express their belief in the genuineness in Mr. Gurnett’s efforts to improve and follow through with advice or instruction.
(5) Factual Errors and Mischaracteri-zations in the ALJ’s decision
Factual Errors
Mr. Gurnett claims that the following assertions in the ALJ’s decision were factually inaccurate: (1) that Mr. Gurnett had not undergone surgery on his neck for the internal carotid dissection; (2) that Mr. Gurnett had fusion performed on his vertebrae;
“An error is harmless only if it is ‘inconsequential to the ultimate non-disability determination.’ ”
As to the ALJ’s error that Mr. Gurnett had undergone a fusion procedure, it actually likely favored Mr. Gurnett. Having one’s vertebrae fused is a permanent procedure that likely has a negative consequence to one’s range of motion. It would be an additional impairment that the ALJ would have been required to consider. And because it appears the ALJ believed the fusion had occurred, the impairment was likely considered in Mr. Gurnett’s RFC determination.
The error that Mr. Gurnett’s had not undergone surgery for his internal carotid dissection is more troubling; but it does not rise to the level of reversible error. The ALJ must have assessed Mr. Garnett’s physical condition after the surgery as it is pervasive in the medical records. His physical condition was affected by the surgery and thus the surgery’s impact is necessarily incorporated into the medical records. Had the ALJ failed to review, assess, and evaluate Mr. Gurnett’s physical condition post-surgery to formulate his RFC because he did not understand Mr. Gurnett had undergone surgery, then the error might have risen to the level of affecting the ultimate non-disability determination. But that is not the case here.
Regarding the error that Mr. Gur-nett did not receive treatment at Providence and ANHC prior to 2013 for anxiety or anxiety-related impairments, the Court finds the ALJ did err and that the error is not harmless. Mr. Gurnett had been seeing Kathy Chastain, A.N.P., at ANHC from as early as June 2011,
Mischaracterizations
The following mischaracterizations are alleged by Mr. Gurnett: (1) that overreacting is not the same as exaggerating; (2) that insurance-induced referrals for medical opinions and referrals by treating doctors are not the equivalent of treatment-seeking behavior; (3) that Mr. Gurnett did not voluntarily terminate his physical ther
The Commissioner specifically responded to the third and fourth mischaraeterization complaints. She claims the record does not support Mr. Gurnett’s assertion that movers, helped him move apartments and cites to a provider who “noted that he was ‘Moving apartments’ in the context of him having ‘no new complaints of pain.’”
The Court invites the ALJ to consider these contentions on remand. Mr. Gurnett is correct that “overreacting” emotionally is not the same as exaggerating and is not necessarily an indicator of lack of credibility. Certainly visiting doctors at the request or insistence of an insurer or employer is not treatment-seeking behavior. If Mr. Gurnett did indeed cease physical therapy because of a lack of insurance, the ALJ should consider that fact. And the Commissioner is mistaken that there is no evidence to support Mr. Gurnett’s assertion with regard to hiring movers. Ms. Ver Hoef states in a progress summary that “[Mr. Gurnett] was able to make arrangements for others to help him move to a new apartment and did what he could to help.”
(6) Hostile Environment Created by ALJ at Evidentiary Hearing & Biased Opinion
Mr. Gurnett alleges the ALJ made his disability benefits appeals hearing hostile and intimidating. He also asserts that ALJ has “created a toxic and inequitable field for disability plaintiffs in the Anchorage area” in a deliberate and conspiratorial manner to undermine their rights to disability benefits.
Mr. Gurnett was represented by counsel at the administrative hearing. The Court is not persuaded that Mr. Gurnett was harmed by the ALJ’s direction at that hearing that Mr. Gurnett not talk and instead allow his attorney to address the ALJ as his representative. Even if the ALJ’s tone was harsh, that would not violate Mr. Gurnett’s due process rights. And any hostility that Mr. Gurnett may have felt should have been tempered by his attorney’s presence, which Mr. Gurnett does not allege to be inadequate or otherwise deficient.
As to the allegation of a generally toxic and inequitable field for all disability-bene
V. CONCLUSION
The Court, having carefully reviewed the administrative record, finds that the ALJ’s determinations are not supported by substantial evidence and are not free from legal error. Accordingly, IT IS ORDERED THAT Docket 1 is GRANTED IN PART, the Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision.
The Court also GRANTS the Commissioner’s Motion for Reconsideration at Docket 32. The Court did not consider the additional evidence on the CD. However, on remand Mr. Gurnett shall be permitted to present the evidence on the CD to the ALJ for appropriate consideration.
The Clerk of Court is directed to enter judgment accordingly.
DATED this 30th day of September, 2016, in Anchorage, Alaska.
. The Court uses the term "disability benefits" to include both disability insurance and SSI.
. Administrative Record (“A.R.”) 240, 242; see also Docket 26 at 3.
. Docket 1; Docket 6-1; Docket 16 at 1.
. See Docket 1..
. Docket 30.
. Docket 16 and Docket 26 respectively.
. Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).
. Perales, 402 U.S. at 401, 91 S.Ct. 1420; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per curiam).
. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
. 42 U.S.C. § 423(a) (2012).
. 42 U.S.C. § 1381a (2012).
. 42 U.S.C. §§ 423(d)(1)(A) (2012), 1382c(a)(3)(A) (2012).
. 42 U.S.C. §§ 423(d)(2)(A) (2012), 1382c(a)(3)(B) (2012).
. 20 C.F.R. §§ 404.1520(a)(4) (2013), 416.920(a)(4) (2013).
. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
. Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098.
. Tackett, 180 F.3d at 1099.
. A.R. 15.
. A.R. 15.
. A.R. 16.
. A.R. 17.
. 20 C.F.R. §§ 404.1520(a)(4)(iv) (2013), ■ 416.920(a)(4)(iv) (2013).
. 20 C.F.R. §§ 404.1520(a)(4)(iv-v) (2013), 416.920(a)(4)(iv-v) (2013).
. 20 C.F.R. §§ 404.1545(a) (2013), 416.945(a) (2013).
. A.R. 19-20.
. The Court notes DOT No. 238.367-038 is a hotel clerk, not a manager and it does not include managerial responsibilities in its description. Mr. Gurnett's testimony and disability benefits exhibits specifically described his work as a night manager that extend above and beyond that of the hotel clerk as described in-DOT No. 238.367-038. The responsibility and activities listed in DOT No. 238.367-038 describes the general role Mr. Gurnett filled at the hotel where he worked, absent the managerial responsibilities and the overlap into other roles that his specific job required of him, e.g., bouncer, bellhop. See also A.R. 78-94. The ALJ’s finding that Mr. Gurnett could perform the job described in DOT No. 238.367-038 does not establish that Mr. Gurnett could perform the work he previously did as a Night Manager. The Court invites the ALJ to reconsider this issue on remand.
.A.R. 27.
. A.R. 28-29.
. A.R. 28, 240, 242, 380.
. A.R. 380.
. See A.R. 253-54, 380.
. A.R. 380.
. A.R. 43-44.
. A.R. 69-70.
. A.R. 71-73.
. A.R. 379.
. A.R. 70 ("I recently passed the GED test ... I think it was in 2010 or ’ll”).
. A.R. 309, 255, 251.
.A.R. 309.
'. A.R. 878.
. A.R. 320, 309.
. A.R. 377, 495.
. A.R. 378.
. A.R. 381 (Nov. 2005 psychiatric evaluation by Eileen H. Ha, M.D.); see also 378 (discussing diagnosis of acute PTSD by former chiropractor, Dr. Frank Rothgeiy, in 2003); 591 (history of PTSD assessment in 2007); 1030 (2013 diagnosis of PTSD by psychiatrist Dr. Rachad Rayess).
. A.R. 385, 393.
. Eileen H. Ha, M.D.
. Stephanie Warnock, L.C.S.W.
. A.R. 383-425.
. A.R. 369 (psychiatric evaluation, Eileen Ha, M.D., Nov. 30, 2015); see also A.R. 378 (psychiatric evaluation, Eileen Ha, M.D., Dec. 2, 2005, reviewing IMEs by Stephen Fuller, M.D., orthopedic surgeon, and David Glass, M.D., psychiatrist).
. A.R. 378.
. A.R. 366 (Aug. 1, 2007, IME conducted by Dr. Larry Levine).
. A.R. 375 (Aug. 23, 2007 MRI impression).
. A.R. 309.
. A.R. 597.
. A.R. 598.
. A.R. 673.
. A.R. 590-591; 673-74.
. A.R. 785, 619. "Horner syndrome is a combination of signs and symptoms caused by the disruption of a nerve pathway from the brain to the face and eye on one side of the body,” http://www.mayoclinic.org/diseases-conditions/horner-syndrome/basics/definition/ con-20034650 (last visited Sept. 12, 2016).
. A.R. 554, 642, 549.
. A.R. 554, 550.
. See A.R. 438, 494.
. A.R. 552.
. A.R. 441-444 (Oct. 29, 2007, IME conducted by Paul Williams, M.D.).
. A.R. 426.
. A.R. 544, 426, 635, 532.
. A.R. 547, 635.
. American Academy of Physical Medicine ‘and Rehabilitation website, "Physical Medicine and Rehabilitation (PM&R) physicians, also known as physiatrists, treat a wide variety of medical conditions affecting the brain, spinal cord, nerves, bones, joints, ligaments, muscles, and tendons.” "[they] are medical doctors who have completed training in the specialty of [PM&R] http://www.aapmr.org/ about-physiatry/about-physical-medicine-rehabilitation/what-is-physiatry (last visited Sept. 14, 2016).”
. A.R. 673 (Shawn Hadley, M.D., physia-trist).
. Anne Ver Hoef, M.A., C.C.C.—S.L.P.
. A.R. 492-502 (Aug. 4-5, 2008, neuropsy-chological evaluation conducted by Paul L. Craig, Ph.D.).
. A.R. 490-91 (Oct. 1, 2008, Minnesota Mul-tiphasic Personality Inventory (MMPI-2) conducted by Paul L. Craig, Ph.D.). Oxford Journals website, MMPI-2 is widely used psychometric test for measuring adult psychopathology in mental health, medical and employment settings, http://occmed. oxfordiournals.Org/conten1/59/2/l 35 .full (last visited Sept. 14, 2016).
. A.R 259, 533, 656.
. A.R. 676.
. A.R. 459-84 (Sept. 25, 2009, IME conducted by Ronald L. Vincent, M.D.).
. A.R. 479-80.
. A.R. 112, 131.
. A.R. 111,130.
. A.R. 115, 134.
. A.R. 57, 47.
. A.R. 59.
. A.R. 60.
. A.R. 41-42.
. 20 C.F.R. §§ 404.1527(c) (2013), 416.927(c) (2013).
. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
. Id. (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)).
. Id. (citing Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008)).
. 20 C.F.R. §§ 404.1527(c)(2) (2013), 416.927(c)(2) (2013).
. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).
. 20 C.F.R. §§ 404.1527(c)(2) (2013), 416.927(c)(2) (2013).
. See Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527).
. Id. at 633 (9th Cir. 2007) (citing SSR 96-2p, 61 Fed. Reg. 34,490, 34,491).
. Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
. Lewis, 236 F.3d at 509 (citing Reddick, 157 F.3d at 722).
. Orn, 495 F.3d at 633 (citing SSR 96-2p, 61 Fed. Reg. at 34,491).
. Orn, 495 F.3d at 633 (quoting Reddick, 157 F.3d at 725).
. Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
. Orn, 495 F.3d at 632.
. Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
. Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)) (emphasis omitted).
. 20 C.F.R. §§ 404.1513(d) (2013), 416.913(d) (2013).
. 20 C.F.R. §§ 404.1513(a)(5) (2013), 416.913(a)(5) (2013).
. Docket 1 at 2; A.R. 321.
. Docket 1 at 3-4; see Docket 30 at 1.
. See Docket 1 at 3-5.
. Docket 26 at 18.
. A.R. 392.
. See 20 C.F.R. § 404.1527(c)(l-2).
. A.R. 818.
. A.R. 1005-07.
. A.R. 945-47, 961-63, 1029-30.
. A.R. 1031, 1032, 976.
. See A.R. 1030, 1032, 1026.
. A.R. 1034.
. A.R. 822.
. A.R. 25.
. A.R. 999.
. A.R. 999.
. E.g., A.R. 814-21.
. A.R. 996-98.
. A.R. 999.
. A.R. 26.
. A.R. 946-47, 1030.
. A.R. 961-62 (Medical Source Statement of Ability to Do Work-Related Activities (Mental), dated May 8, 2013).
. A.R. 961.
. A.R. 961.
. A.R. 26.
. A.R. 825.
. A.R. 823.
. A.R. 800.
. A.R. 822-23.
. 20 C.F.R. § 404.1527(c)(2).
. Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
. Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (quoting Reddick, 157 F.3d at 725).
. See A.R. 1008, 1005-07.
. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).
. A.R. 26; Docket 26 at 17.
. A.R. 988; see 816, 818, 828, 831.
. 20 C.F.R. § 404.1513(d).
. A.R. 26.
. A.R. 961-62.
. A.R. 1029-30.
. Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
. 20 C.F.R. § 404.1513(a).
. 20 C.F.R. § 404.1513(d).
. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
. A.R. 816.
. A.R. 809.
. A.R. 26; see also A.R. 949.
. A.R. 949.
. National Institute of Neurological Disorders and Stroke website, definition of spinal cord infarction "a stroke either within the spinal cord or the arteries that supply it,” http://www.ninds.nih.gov/disorders/spinaL infarction/spinal—infarction.htm (last visited Sept. 13, 2016).
. A.R. 1025.
. A.R. 26.
. A.R. 987, 811.
. See A.R. 809, 954, 986, 948-49, 1024-25.
. A.R. 986.
. A.R. 945-47.
. A.R. 986.
. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
. A.R. 554.
. A.R. 547.
. A.R. 533.
. A.R. 577.
. A.R. 545.
. A.R. 542.
. A.R. 545.
. A.R. 533, 536.
. A.R. 26; see 577.
. See Om v. Astrue, 495 F.3d 625, 634 (9th Cir. 2007) (finding error when the ALJ dismissed treating sources’ "opinions that were substantiated by the contemporaneous medical tests and Orn’s medical condition.”)
. A.R. 19.
. See A.R. 55, 964.
. A.R. 458.
. A.R. 25.
. A.R. 25.
. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).
.A.R. 673.
. A.R. 680.
. A.R. 719-723. The Court notes that Dr. Hadley's opinion in this regard directly contradicts the ALJ's determination that Mr. Gur-nett can perform his past duties as a night manager at a hotel with a restaurant. See supra note 28.
. A.R. 724.
. A.R. 26.
. Cf. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)).
. SeeA.R. 681.
. A.R. 677.
. A.R. 877, 897, 918.
. A.R. 881; see also A.R. 919-29.
. A.R. 888.
. A.R. 932-937.
. A.R. 26.
. A.R. 26.
. Docket 26 at 10.
. See 20 C.F.R. §§ 404.1527(d)(3), 404.1513(d).
. A.R. 876.
. 20 C.F.R. § 404.1513(a)(5).
. E.g., A.R. 946 ("his other limitation is his circumstantial thinking,” Dr. Rayess, March 13, 2013); A.R. 809 ("rambling, digressive, and at times difficult to follow,” Dr. Fraser, Dr. Fraser, March 7, 2012); A.R. 812-13 ("thought process circumstantial” assessment "depression with anxiety,” Kathy Chastain, A.N.P., March 3, 2012); A.R. 759 (“trouble retaining information and during visit has difficulty maintaining focus,” Dr. Spaulding, Nov. 30, 2009); A.R. 896 ("Mr. Gurnett has a tendency to run-on or get side-tracked [with] topics,” Ms. Ver Hoef, S.L.P., Oct. 29, 2008).
. 20 C.F.R. § 404.1527(c)(2); see also Om v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (citing SSR 96-2p, 61 Fed. Reg. 34,490, 34,-491).
. 20 C.F.R. § 404.1527(c)(1).
. A.R. 371-72.
. A.R. 374-75.
. A.R. 365; see also A.R. 375 (MRI Report).
. A.R. 365.
. A.R. 16.
. A.R. 15.
. A.R. 441-43.
. A.R. 436-37.
. A.R. 25.
.A.R. 25.
. A.R. 463.
. A.R. 476.
. A.R. 479.
. A.R. 462.
. A.R. 25.
. A.R.112, 124.
. A.R. 25.
. A.R. 111,115, 130, 134.
. A.R. 127-29.
. A.R. 25.
. A.R. 25.
. Docket 26 at 13-14.
. Docket 26 at 9.
. Docket 26 at 13-14.
. Docket 1 at 2.
. Docket 26 at 14.
.Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996) ("The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them. An examining doctor’s findings are entitled to no less weight when the examination is procured by the claimant than when it is obtained by the Commissioner.” (citing Ratio v. Secretary, 839 F.Supp. 1415, 1426 (D. Or. 1993))).
. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)) (alteration in original).
. See A.R. 277-78.
. A.R. 277-78.
. A.R. 27.
. Docket 26 at 18-19.
. Docket 26 at 19 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)).
. Docket 1 at 5.
. A.R. 277-78.
. Cf. Hanes v. Colvin, 651 Fed.Appx. 703, 707 (9th Cir. 2016).
. A.R. 278.
. Compare, e.g., A.R. 277 ("[I]t was evident that Mr. Gurnett had difficulty concentrating ... was easily distracted ... seemed unable to retain instructions ... showed a tendency to become anxious ... [and] had great difficulty multitasking ....”), with, e.g., A.R. 759 ("trouble retaining information and during visit has difficulty maintaining focus,” Dr. Spaulding, Nov. 30, 2009).
. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
. Id. at 1102.
. Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).
. Id. (quoting Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996)); see also Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014) (specifically rejecting government's argument that clear and convincing requirements does not apply).
. Id. (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001), and Lester v. Chafer, 81 F.3d 821, 834 (9th Cir. 1995)) (alterations and omission in original).
.Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).
. A.R. 21.
. A.R. 21.
. A.R. 22.
. A.R. 22-23.
. A.R. 23.
. A.R. 23-24.
. A.R. 24.
. A.R. 24-25.
. Docket 1 at 4.
. See Docket 1 at 3.
. Docket 26 at 14.
. Docket 26 at 11, 16.
. E.g., A.R. 497 ("[Mr. Gurnett’s] good performance ... speaks positively about his level of effort on tasks sensitive to memory and his general approach to testing", malingering screening by Dr. Craig, August 2008).
. Treichler v. Comm’r, Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996)).
. The Court interprets Mr. Gurnett's statement "there is no past fusion. No fusion has been done” to relate to his vertebrae and not his eyes, where fusion is an issue. See Docket 1 at 3; A.R. 47; see also Docket 26 at 12.
. Docket 1 at 3, 4.
. Docket 26 at 10, 12, 17.
. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)).
. A.R. 825.
. A.R. 809.
. A.R. 425.
. A.R. 392.
. Docket 1 at 4.
. Docket 1 at 4; see A.R. 887.
. Docket 26 at 15.
. Docket 26 at 14.
. A.R. 887.
. Docket 30.
. Docket 30-1 at 1.
. Docket 30-1 at 4-5.
. Docket 30-1 at 2-3.
. Docket 30-1 at 6-20.
Reference
- Full Case Name
- Michael S. GURNETT v. Carolyn W. COLVIN, Acting Commissioner of Social Security
- Cited By
- 1 case
- Status
- Published