United States District Court, D. Arizona
ORDER
H.
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
This is
an action for judicial review of the denial of disability
benefits under Title II and Title XVI of the Social Security
Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff
Alberta Dockstader has timely filed her opening brief,
[1] to
which defendant, the Commissioner of the Social Security
Administration, has timely responded.[2] Oral argument was not
requested and is not deemed necessary.
Procedural
Background
On
December 2, 2014, plaintiff filed applications for disability
benefits under Title II and Title XVI of the Social Security
Act, alleging that she became disabled on November 25, 2014.
Plaintiff alleged that she was disabled due to rapid cycling
bipolar disorder. Plaintiff's applications were denied
initially and upon reconsideration. Plaintiff requested a
hearing. After an administrative hearing on February 9, 2017,
an administrative law judge (ALJ) denied plaintiff's
applications. Plaintiff sought review of the ALJ's
unfavorable decision. On May 18, 2018, the Appeals Council
denied plaintiff's request for review, thereby making the
ALJ's May 31, 2017 decision the final decision of the
Commissioner. On July 17, 2018, plaintiff commenced this
action in which she asks the court to review the
Commissioner's final decision.
General
Background
Plaintiff
was born on July 8, 1987. She was 29 years old at the time of
the administrative hearing. Plaintiff has an Associate's
Degree. Plaintiff lives with her parents. Plaintiff's
past relevant work includes work as a teacher's aide and
a housekeeper.
The
ALJ's Decision
The ALJ
first determined that plaintiff met “the insured status
requirements of the Social Security Act through March 31,
2020.”[3]
The ALJ
then applied the five-step sequential analysis used to
determine whether an individual is disabled.[4]
At step
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since November 25, 2014, the
alleged onset date. . . .”[5] The ALJ noted that plaintiff
had worked at a preschool after her alleged onset date, but
found that “this work activity did not rise to the
level of substantial gainful activity.”[6]
At step
two, the ALJ found that plaintiff had “the following
severe impairments: congenital hip impairment, status post
hip replacement, major depressive disorder, and borderline
personality disorder. . . .”[7] The ALJ found
plaintiff's hydrocephalus and anorexia
non-severe.[8]
At step
three, the ALJ found that plaintiff did “not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. . .
.”[9] The ALJ considered Listings 12.03
(schizophrenia spectrum and other psychotic disorders), 12.04
(depressive, bipolar and related disorders), 12.06 (anxiety
and obsessive-compulsive disorders), and 12.08 (personality
and impulse-control disorders). The ALJ considered the
“paragraph B” criteria and found that plaintiff
had moderate limitations in understanding, remembering, or
applying information; moderate limitations in interacting
with others; moderate limitations with regard to
concentration, persistence, or pace; and moderate limitations
in adapting or managing oneself.[10] The ALJ thus found that
the “paragraph B” criteria were not
satisfied.[11] The ALJ also found that the
“paragraph C” criteria were not
satisfied.[12]
“Between
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
of Social Security Admin., 554 F.3d 1219, 1222-23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(b) and 416.967(c) except the
claimant can perform simple, routine and repetitive tasks
involving simple work related decisions and simple
instructions with few changes in the workplace. Resolving
conflicts with others could not be a primary work
responsibility. The claimant is able to interact occasionally
with the public, coworkers, and supervisors.[13]
The ALJ
found plaintiff's symptom statements less than credible
because she “has been treated with medication and
attended counseling which has addressed situational
stressors[, ]” because she “continued to
volunteer at a school and work as a substitute teacher[,
]” because she “received unemployment benefits
after the alleged onset date[, ]” and because of her
daily activities.[14]
The ALJ
gave minimal weight to Dr. Taylor's
opinion.[15] The ALJ gave great weight[16]to Dr.
DeFelice's opinion[17] that plaintiff was not precluded from
all work. The ALJ also gave great weight[18] to Dr.
Gallucci's opinion[19] that plaintiff was not precluded from
all work. The ALJ considered the lay testimony of
plaintiff's mother[20] but did not assign a specific weight
to this testimony.[21] The ALJ considered Ilene Timpson's
lay testimony[22] and gave great weight to her opinion
that plaintiff was not precluded from doing simple
work.[23]
At step
four, the ALJ found that plaintiff was “unable to
perform any past relevant work. . . .”[24]
At step
five, the ALJ found that “there are jobs that exist in
significant numbers in the national economy that the claimant
can perform. . . .”[25] The ALJ found that plaintiff
could work as a laundry worker, a retail marker, or a
sandwich maker.[26] This finding was based on the testimony
of the vocational expert.[27]
Thus,
the ALJ concluded that plaintiff had “not been under a
disability, as defined in the Social Security Act, from
November 25, 2014, through the date of this decision. . .
.”[28]
Standard
of Review
Pursuant
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly
affirms the Commissioner's decision denying benefits if
it is supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)).
Discussion
Plaintiff
first argues that the ALJ erred as to Dr. Taylor's
opinion. On September 30, 2015, Dr. Taylor noted that she had
seen plaintiff for weekly counseling since November 5,
2013.[29] Dr. Taylor opined that plaintiff had
moderate restrictions of daily living; moderate difficulties
in maintaining social functioning; moderate difficulties
maintaining concentration, persistence, or pace; and no
episodes of extended decompensation.[30] Dr. Taylor opined that
plaintiff would miss more than four days of work per month
due to her mental impairments.[31] Dr. Taylor opined that
plaintiff was not significantly limited in her ability to
understand/remember/carry out very short and simple
instructions; was moderately limited in her ability to
remember locations and work-like procedures,
understand/remember/carry out detailed instructions, sustain
an ordinary routine without special supervision, make simple
work-related decisions, interact appropriately with the
general public, maintain socially appropriate behavior, and
adhere to basic standards of neatness and cleanliness; and
had marked limitations in her ability to recognize and find
solutions to problems in day-to- day life, maintain attention
and concentration for extended periods, perform activities
within a schedule, maintain regular attendance, be punctual
within customary tolerances, work in coordination with or
proximity to others without being distracted by them,
complete a normal workday and workweek without interruptions
from psychologically based symptoms, perform at a consistent
pace without an unreasonable number and length of rest
periods, ask simple questions or request assistance, accept
instructions and respond appropriately to criticism from
supervisors, get along with coworkers or peers without
distracting them or exhibiting behavior extremes, respond
appropriately to changes in the work setting, be aware of
normal hazards and take appropriate precautions, travel in
unfamiliar places or use public transportation, and set
realistic goals or make plans independently of
others.[32] Finally, Dr. Taylor opined that
plaintiff was not capable of working 8 hours per day, 5 days
per week.[33]
Dr.
Taylor was a treating source, but the ALJ only gave minimal
weight to her opinion.[34] “As a general rule, more weight
should be given to the opinion of a treating source than to
the opinion of doctors who do not treat the claimant.”
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
“At least where the treating doctor's opinion is
not contradicted by another doctor, it may be rejected only
for ‘clear and convincing' reasons.”
Id. (quoting Baxter v. Sullivan, 923 F.2d
1391, 1396 (9th Cir. 1991)). “[I]f the treating
doctor's opinion is contradicted by another doctor, the
Commissioner may not reject this opinion without providing
‘specific and legitimate reasons' supported by
substantial evidence in the record for so doing.”
Id. (quoting Murray v. Heckler, 722 F.2d
499, 502 (9th Cir. 1983)). Dr. Taylor's opinion was
contradicted by Dr. DeFelice's and Dr. Gallucci's
opinions. Thus, the ALJ was required to provide specific and
legitimate reasons for giving Dr. Taylor's opinion only
minimal weight.
The ALJ
gave two reasons for rejecting Dr. Taylor's opinion.
First, the ALJ found that Dr. Taylor's opinion that
plaintiff had “a marked limitation in [her] ability to
recognize and find solutions to problems in day-to-day
life” was “inconsistent with the claimant's
own statements that she is volunteering and working at a
school.”[35] Second, the ALJ found Dr. Taylor's
opinion inconsistent with plaintiff's family structure,
which “requires the claimant to interact[] with
multiple family members.”[36] Although the ALJ did not
expressly tie this reason to a specific portion of Dr.
Taylor's opinion, it appears to be directed to Dr.
Taylor's opinion that plaintiff had marked limitations in
her “ability to work in coordination [with] others
without being distracted by them.”[37]
As to
the first reason, this was not a legitimate reason because
plaintiff was only able to volunteer and work at the school
because numerous accommodations were made for her. The record
shows that plaintiff was able to volunteer and work at the
school because she had a flexible schedule, was isolated from
others, and could take time off when she needed
it.[38]Moreover, the record shows that plaintiff
never volunteered or worked eight hours a day, five days a
week, but rather that she volunteered four days a week for
about six hours per day, and that if she “worked”
on any given day, it might be for as little as one
hour.[39] In other words, the record shows that
plaintiff primarily worked on her own schedule and that she
spent most of her time volunteering, rather than working for
pay. The record also shows that plaintiff volunteered in her
sisters' classrooms because they could make the necessary
accommodations.[40] Given the number of accommodations
plaintiff was receiving, her ability to volunteer and work
was not inconsistent with Dr. Taylor's opinion.
This
case is similar to McAllister v. Sullivan, 888 F.2d
599 (9th Cir. 1989). There, the ALJ had rejected Dr.
Nidever's opinion, in part, because it was contrary to
McAllister's “activities and interests[.]”
Id. at 602. The court found that Dr. Nidever's
opinion was not necessarily “contradicted by
McAllister's ‘activities and interests'”
because “McAllister testified that he was able to
perform volunteer work because he felt free to leave at any
time[, ]” which the court found to be “a
plausible explanation for his ability to hold such jobs but
not gainful employment.” Id. at 603. Similarly
here, the accommodations that were made for plaintiff allowed
her to volunteer and sometimes work at the school, but these
accommodations are a plausible explanation for why she could
volunteer and work at the school but not maintain gainful
employment.
Defendant
points out that plaintiff testified that she rode with a
friend to the school[41]and suggests that if plaintiff did not
have her own transportation, she would not be able to leave
whenever she wanted, as she contends. But the fact that
plaintiff did not drive herself to school does not mean that
she could not leave when she needed to. It would just mean
she would have to find someone to give her a ride home. In
addition, as a volunteer, plaintiff could simply leave the
classroom if her symptoms dictated, which it is unlikely she
would be able to do if she were working full time.
In sum,
the first reason given by the ALJ for giving Dr. Taylor's
opinion minimal weight was not legitimate. Plaintiff's
ability to volunteer and work at the school with multiple
accommodations was not inconsistent with Dr. Taylor's
opinion that plaintiff had “a marked limitation in
[her] ability to recognize and find solutions to problems in
day-to-day life.”[42] Plaintiff's ability to volunteer
and work at the school with multiple accommodations was also
not inconsistent with Dr. Taylor's opinion that plaintiff
was not capable of full-time work.
As for
the second reason, that plaintiff's family structure was
inconsistent with Dr. Taylor's opinion, the ALJ explained
that plaintiff was “married and is the sixth sister
wife” and that plaintiff testified that she lived with
her “parents who are in a polygamous
relationship.”[43] The ALJ found that this family structure
meant that plaintiff had to interact with multiple family
members, which the ALJ implied was inconsistent with Dr.
Taylor's opinion that plaintiff had marked limitations in
her ability to work in coordination with
others.[44]
Defendant
argues that this was a legitimate reason for rejecting Dr.
Taylor's opinion because plaintiff's interactions
with her family members demonstrated an ability to make plans
independently of others. But, the ALJ did not specifically
find plaintiff's ability to interact with her family
inconsistent with Dr. Taylor's opinion about
plaintiff's ability to make independent plans. Rather,
the ALJ appears to have found that plaintiff's ability to
interact with her family was inconsistent with Dr.
Taylor's opinion about plaintiff's ability to work in
coordination with others.
The
second reason given by the ALJ was not legitimate. That
plaintiff's family structure involved multiple members
has little to do with plaintiff's ability to work in
coordination with others. Plaintiff's interaction with
her family members is likely to be quite different from her
interaction with co-workers and supervisors. More
importantly, the record as whole indicates that plaintiff had
difficulty interacting with the family members in her
marriage home, as evidenced by the fact that she had moved
out of that home and had been living with her parents for
more than one year at the time of the administrative
hearing.[45]
Defendant
also suggests that the ALJ properly rejected Dr. Taylor's
opinion that plaintiff would have a marked limitation in her
ability to travel to unfamiliar places because
plaintiff's anxiety associated with a trip to Missouri
had more to do with returning to a stressful situation than
the actual traveling.[46] But the ALJ did not mention
plaintiff's ability to travel as a reason for rejecting
Dr. Taylor's opinion. The court may only review
“the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon
which [she] did not rely.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007).
The two
reasons given by the ALJ for giving Dr. Taylor's opinion
minimal weight were not legitimate. The ALJ ...