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1 Defendant substituted pursuant to F.R.C.P. 25(d)(1) and 42 U.S.C. § 405(g). Michael J. Astrue

became Commissioner of Social Security on February 12, 2007.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DOUGLAS F. MORRISON )

)

Plaintiff, ) CASE NO. C06-836- RSM-MJB

)

v. ) REPORT AND 

) RECOMMENDATION

MICHAEL J. ASTRUE,1 )

Commissioner of Social Security, )

)

Defendant. )

____________________________________)

Plaintiff Douglas Morrison appeals to the District Court from a final decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying his

application for Disability Insurance Benefits and Supplemental Security Income under Titles II

and XVI of the Social Security Act. For the reasons set forth below, it is recommended that the

Commissioner’s decision be REVERSED and this matter REMANDED for further

administrative proceedings.

//

//

//

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REPORT AND RECOMMENDATION

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I. PROCEDURAL HISTORY

Plaintiff applied for Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”) on April 15, 2004, alleging disability since February 26, 2003, and identifying his

impairments as depression and post traumatic stress disorder (“PTSD”). (Tr. 53-55, 79). The

Social Security Administration denied Plaintiff’s application initially (Tr. 23-25) and upon

reconsideration (Tr. 27-28). A hearing was held before Administrative Law Judge (“ALJ”) Mary

Gallagher Dilley on March 2, 2005. (Tr. 15). Plaintiff, who was represented by counsel,

testified at the hearing. (Tr. 315-40). A medical expert (“ME”), Arthur Lewy, Ph.D., and a

vocational expert (“VE”), Linda Tanouye, also testified at the hearing. (Tr. 340-59). The ALJ

issued an unfavorable decision on September 1, 2005, finding that Plaintiff is able to perform a

significant number of jobs in the state and national economies despite his limitations, and thus, he

was not under a disability at any time through the date of the decision. (Tr. 19-20). On April

12, 2006, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision

the final decision of the Commissioner. (Tr. 6-10). Plaintiff timely filed his appeal with this

Court.

II. THE PARTIES’ POSITIONS

Plaintiff requests that the Court reverse the Commissioner’s decision and either remand

for payment of benefits or, in the alternative, remand for further administrative proceedings. 

Plaintiff argues that the ALJ erred by: 1) failing to properly consider the Department of

Veteran’s Affairs finding of disability; 2) failing to properly consider the opinions of Plaintiff’s

treating and examining psychiatrists; 3) failing to properly consider Plaintiff’s testimony

regarding his limitations; 4) improperly determining Plaintiff’s residual functioning capacity; and

5) failing to find Plaintiff disabled at step five based on Plaintiff’s inability to successfully perform

in any competitive employment on a sustained basis. Defendant responds that the

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Commissioner’s decision should be affirmed because the ALJ applied correct legal standards and

supported his decision with substantial evidence.

III. STANDARD OF REVIEW

The court may set aside the Commissioner’s denial of social security disability benefits

when the ALJ’s findings are based on legal error or not supported by substantial evidence in the

record as a whole. Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence is

defined as 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. Magallanes v. Bowen,

881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving

conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995). Where the evidence is susceptible to more than one rational interpretation,

it is the Commissioner’s conclusion which must be upheld. Sample v. Schweiker, 694 F.2d 639,

642 (9th Cir. 1982).

IV. EVALUATING DISABILITY

The claimant bears the burden of proving that he is disabled. Meanel v. Apfel, 172 F.3d

1111, 1113 (9th Cir. 1999). Disability is defined as the inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental 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 twelve months. 42 U.S.C. § 423(d)(1)(A).

The Social Security regulations set out a five-step sequential evaluation process for

determining whether a claimant is disabled within the meaning of the Social Security Act. See 20

C.F.R. § 416.920. At step one, the claimant must establish that he or she is not engaging in any

substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the claimant

must establish that he or she has one or more medically severe impairments or combination of

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impairments. If the claimant does not have a “severe” impairment, he or she is not disabled. Id.

at § (c). At step three, the Commissioner will determine whether the claimant’s impairment

meets or equals any of the listed impairments described in the regulations. A claimant who meets

one of the listings is disabled. See id. at § (d).

At step four, if the claimant’s impairment neither meets nor equals one of the impairments

listed in the regulations, the Commissioner evaluates the claimant’s residual functional capacity

and the physical and mental demands of the claimant’s past relevant work. Id. at § (e). If the

claimant is not able to perform his or her past relevant work, the burden shifts to the

Commissioner at step five to show that the claimant can perform some other work that exists in

significant numbers in the national economy, taking into consideration the claimant’s residual

functional capacity, age, education, and work experience. Id. at § (f); Tackett v. Apfel, 180 F.3d

1094, 1100 (9th Cir. 1999). If the Commissioner finds the claimant is unable to perform other

work, then the claimant is found disabled.

V. SUMMARY OF THE RECORD EVIDENCE

Plaintiff, who was born in August 1948, was 57 years old at the time of his hearing before

the ALJ. (Tr. 18). He has a high school education and has completed two years of college. (Tr.

83). Plaintiff has previously worked as a stage hand. (Tr. 80, 85-86). In his disability report,

Plaintiff indicated that his condition limits his ability to work because he has homicidal tendencies

and feels unsafe in the work place. (Tr. 80). Other evidence relevant to Plaintiff’s claims is

incorporated into the discussion below.

VI. THE ALJ’S DECISION

The ALJ found that Plaintiff has not engaged in substantial gainful activity since the

alleged onset of his disability. (Tr. 19). She determined that Plaintiff has the following severe

impairments: PTSD and a mood disorder NOS. (Tr. 19). The ALJ found that these impairments

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do not meet or equal one of the listed impairments in Appendix 1, Subpart P of the Regulations. 

(Tr. 19). 

The ALJ determined that Plaintiff retains a residual functional capacity without physical

limitations. (Tr. 18, 19). Specifically, she found that Plaintiff can perform work that is regular

and routine with occasional superficial contact with co-workers and the public. (Tr. 18, 19). 

Thus, she concluded that Plaintiff is unable to perform his past relevant work. (Tr. 18, 19). In

reaching this conclusion, the ALJ found that Plaintiff’s allegations regarding his limitations are

not entirely credible. (Tr. 16, 19). 

At step five, the ALJ determined that Plaintiff has the exertional capacity to perform a full

range of work, and he retains the capacity to adjust to work that exists in significant numbers in

the national economy, including jobs in building maintenance, furniture repair, and as a caretaker. 

(Tr. 19). Therefore, the ALJ concluded that Plaintiff was not disabled at any time through the

date of the decision and is not eligible for DIB or SSI. (Tr. 19-20).

VII. DISCUSSION

A. ALJ’s Assessment of Medical Experts’ Opinions

Plaintiff argues that the ALJ failed to give appropriate weight to the opinions of

Plaintiff’s treating and examining psychiatrists, Dr. Tarver, Dr. Hohenegger, and Dr. Kanter, and

the ALJ failed to give reasons for rejecting the medical evaluations of these psychiatrists. The

Commissioner contends that the ALJ correctly considered the medical evidence, and the opinions

of Plaintiff’s treating and examining psychiatrists were consistent with the ALJ’s residual

functional capacity finding.

Greater weight is given to the treating physician’s opinion; however, that opinion is not

necessarily conclusive of a physical condition or on the ultimate issue of disability. Matney v.

Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). To reject an uncontradicted opinion of a treating

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or examining doctor, an ALJ must state clear and convincing reasons that are supported by

substantial evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). If a treating or

examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may reject it by

providing specific and legitimate reasons that are supported by substantial evidence. Id.; see also

Andrews, 53 F.3d at 1043; Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

The ALJ never mentioned Dr. Tarver, Plaintiff’s examining psychiatrist, in her opinion. 

(See Tr. 15-20). However, it appears that Dr. Tarver examined Plaintiff once on September 17,

2003. (See Tr. 235-37). Dr. Tarver’s treatment notes recommend that Plaintiff be assessed for

PTSD, describing the plaintiff as a Vietnam War veteran who is angry about the Iraq war, hyper

vigilant, and has intrusive memories of Vietnam War experiences. (Tr. 236-37). The record

shows that the ALJ appears not to have evaluated Dr. Tarver’s opinion or accorded any weight

to his opinion. 

Additionally, the ALJ did not indicate whether Plaintiff’s treating psychiatrist Dr.

Kanter’s treatment notes conflicted with another doctor’s opinion. (Tr. 17). Absent any

contradiction, the ALJ must provide clear and convincing reasons for rejecting Dr. Kanter’s

notes. See Lester, 81 F.3d at 830-31. While the ALJ mentioned the treatment notes of Dr.

Kanter, she did not state what, if any, weight she accorded to Dr. Kanter’s notes. Further, the

ALJ did not state whether she accepted or rejected Dr. Kanter’s opinion, nor did she provide any

reason to support her evaluation of Dr. Kanter’s opinion. (Tr. 17). Accordingly, this Court

concludes that the ALJ erred in not properly addressing the treatment notes of Dr. Tarver and

Dr. Kanter. See Lester, 81 F.3d at 830-32; 20 C.F.R. § 404.1527(d)(2).

Finally, the ALJ stated that she would give Dr. Hohenegger’s opinion “some weight,” but

she never stated that Dr. Hohenegger’s opinion was contradicted by another opinion, nor did she

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2 Dr. Hohenegger diagnosed Plaintiff with PTSD and depression: intrusive thoughts and

recollections that “give rise to periods of anxiety, agitation, sleep disturbance, depression, with history of

suicidal ideation and more recent homicidal ideation;” and hyperarousal with “moderate sleep disturbance,

moderate to severe irritability in certain social settings, particularly with figures of authority.” (Tr. 201-

04). He concluded that Plaintiff’s present psychological stress would “have a moderate to moderately

severe impact on his employability, secondary to primary difficulties in establishing and maintaining

motivation, as well as establishing and maintaining appropriate relations in a working environment

secondary to periods of anxiety, vulnerability, depression, and homicidal ideation.” (Tr. 203-04)

(emphasis added).

REPORT AND RECOMMENDATION

Page-7

provide clear and convincing reasons for rejecting it.2

 The ALJ concluded that Dr. Hohenegger’s

“assessment was not specific, and the claimant’s mental status at examination was intact.” (Tr.

17) (internal citations omitted). 

When evaluating medical opinions, an ALJ need not accept the opinion of a doctor if that

opinion is brief, conclusory, or inadequately supported by findings. See Tonapetyan v. Halter,

242 F.3d 1144, 1149 (9th Cir. 2001). However, after careful review of the record, this Court

finds that the ALJ’s reason for rejecting Dr. Hohenegger’s assessment as conclusory is not

supported by the record. Specifically, Dr. Hohenegger wrote two single-spaced pages describing

Plaintiff’s history prior to military service. (Tr. 201-03). He carefully described what he calls

clinically important facts regarding Plaintiff’s mental status and evidence of trauma and

psychological impact taken from Plaintiff’s medical file and from his personal observations. He

also explained what impact these symptoms would have on Plaintiff’s employability. (Tr. 203-

04). Given the specificity of Dr. Hohenegger’s assessment, the ALJ’s decision was not

supported by substantial evidence and was in error. See Lester, 81 F.3d at 830-32.

//

//

//

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3

 On March 19, 2004, the VA determined that Plaintiff was 70% disabled due to his depression

and PTSD. (Tr. 184). The VA stated that Plaintiff’s current psychiatric condition would impact his

employment because Plaintiff suffered from depression, anxiety, and homicidal ideation. (Tr. 185). Six

months later, on September 16, 2004, the VA determined that Plaintiff was entitled to individual

unemployability because the evidence showed that Plaintiff had a permanent service-connected disability. 

(Tr. 181-82).

4

 The Commissioner concedes that the ALJ misstates the VA doctor’s GAF assessments of 50 as

“moderate GAF ratings.” (Tr. 18). A GAF rating of 50, however, indicates serious symptoms or any

serious impairment in social, occupational, or school functioning. (Dkt. # 10 at 6). 

REPORT AND RECOMMENDATION

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B. ALJ’s Assessment of Veterans Affairs Finding of Disability

Plaintiff argues that the ALJ improperly rejected the Department of Veterans Affairs

(“VA”) determination that Plaintiff is disabled. The Commissioner contends that the ALJ

properly evaluated the opinion of the VA. An ALJ must give great weight to a VA

determination of disability; however, an ALJ may give less weight to a VA disability rating if she

gives persuasive, specific, valid reasons for doing so that are supported by the record. McCartey

v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). A VA rating of disability does not compel

an ALJ to reach an identical result, but an ALJ must consider the VA finding in reaching her

decision. Id. In her decision, the ALJ stated that she would give “very careful attention” to the

VA rating;3

 however, she next reasoned,

Here, the VA assessment is correct in that it finds the claimant’s

impairments to have some impact on his employability, which is consistent with

the vocational testimony below. However, the VA conclusions are not supported

by the medical expert testimony in this case, and with the moderate GAF ratings

assessed by the VA doctors. As noted below, the vocational expert testimony

supports a conclusion that the claimant is not fully unemployable.

(Tr. 18) (internal citations omitted). 

The ALJ rejected the VA’s finding of disability as not supported by the testimony of the

ME, Dr. Arthur Lewy, and that the finding was not supported by the record.4 (Tr. 17, 341-350).

The ME’s testimony was the only opinion that conflicted with the VA’s determination. 

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However, the opinion of a non-examining physician, such as the ME, cannot by itself constitute

substantial evidence that justifies the rejection of the opinion of either an examining physician or

a treating physician. Lester, 81 F.3d at 830-21 (citing Pitzer v. Sullivan, 908 F.2d 502, 506

(n.4) (9th Cir. 1990)). Moreover, the record which includes VA findings from both March and

September 2004, are based in part upon Dr. Hohenegger’s evaluation and the treatment notes of

Plaintiff’s treating psychiatrist of more than four years, Dr. Kanter. (Tr. 185). 

To understand the import of VA disability findings, McCartey illustrates:

Both programs [the VA and SSA] (1) serve the same governmental 

purpose-providing benefits to those unable to work because of serious disability;

(2) evaluate a claimant’s ability to perform full-time work in the national economy

on a sustained and continuing basis; (3) focus on analyzing a claimant’s functional

limitations; (4) require claimants to present extensive medical documentation; (5)

have a detailed regulatory scheme that promotes consistency in adjudication of

claims; and (6) have criteria for evaluating disability that are very specific and

translate easily into SSA’s disability framework. 

McCartey, 298 F.3d at 1076. Moreover, Plaintiff has argued that the ALJ never mentioned the

VA’s September 2004 decision which concluded Plaintiff was unemployable due to a permanent

service-connected disability. (Dkt. #9 at 15). 

While the Commissioner has provided a number of reasons why the ALJ could have

discredited the VA’s September 2004 disability rating, a careful review of the ALJ’s decision

reveals that none of these reasons were provided by the ALJ in her decision. This Court cannot

affirm an ALJ’s decision that is based upon a rationale that was not stated in the ALJ’s decision. 

Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)(citing SEC v. Chenery Corp., 332 U.S.

194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). Plaintiff is correct that the ALJ should have

provided reasons for rejecting the September 2004 rating. I conclude that ALJ erred in her

reasons for rejecting the VA finding of disability. 

//

//

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C. ALJ’s Assessment of Plaintiff’s Credibility

Plaintiff argues that the ALJ failed to properly consider his testimony regarding his

symptoms and functional limitations while the Commissioner contends that the ALJ correctly

evaluated Plaintiff’s credibility. If a claimant has established an underlying impairment which

reasonably could be expected to produce the alleged substantive complaints and there is no

evidence of maligning, the ALJ must provide clear and convincing reasons for rejecting the

claimant’s testimony. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). In assessing

credibility, the ALJ may consider, for example: 1) ordinary techniques of credibility evaluations,

such as the claimant’s reputation for lying and prior inconsistent statements concerning

symptoms; 2) unexplained or inadequately explained failure to seek treatment or to follow a

prescribed course of treatment; 3) the claimant’s daily activities; and 4) medical evidence tending

to discount the severity of subjective claims. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th

Cir. 2001). 

In this case, the ALJ found that Plaintiff’s allegations regarding his impairments and

limitations are not totally credible “in light of evidence contained in the medical reports and other

evidence of record.” (Tr. 16). However, after careful review of the record, this Court does not

find any inconsistencies between Plaintiff’s testimony and the medical reports in the record. The

medical reports of Dr. Kanter and Dr. Hohenegger both diagnose Plaintiff with PTSD and

depression. (Tr. 190, 201-04). Additionally, Plaintiff’s allegations regarding his limitations are

supported by Dr. Tarver’s treatment notes. (Tr. 235-37). Similarly, Plaintiff’s statements

regarding his impairments and limitations are supported by the notes of his treating psychiatrist,

Dr. Kanter. These treatment notes state that Plaintiff experiences anger dyscontrol, particularly

at work, in addition to experiencing sleep disturbances several times a night, bad nightmares,

flashbacks during the day, anger about the Iraq war, and an intense feeling that he needs a gun to

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protect himself. (Tr. 190, 285, 295, 297, 302). Based upon Dr. Hohenegger’s and Dr. Kanter’s

diagnoses, the ALJ’s statement that Plaintiff’s allegations are not supported by evidence is not

sustained by the record.

In addition, the ALJ did not indicate what aspect of Plaintiff’s testimony is not credible,

nor did the ALJ articulate what evidence on the record undermines Plaintiff’s complaints. 

General findings are insufficient, rather, the ALJ must identify what testimony is not credible and

what evidence undermines the claimant’s complaints. Dodrill v. Shalala, 12 F.3d 915, 918 (9th

Cir. 1993). 

The Commissioner has provided a number of reasons why the ALJ could have discredited

Plaintiff’s testimony. None of these reasons were provided by the ALJ in her decision. This

Court cannot affirm an ALJ’s decision that is based upon a rationale that was not stated in the

ALJ’s decision. Connett, 340 F.3d at 874 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67

S.Ct. 1575, 91 L.Ed. 1995 (1947)). This claim of error is sustained.

D. Plaintiff’s Remaining Claims and Remand for Further Administrative Proceedings

The Plaintiff argues that the ALJ improperly determined Plaintiff’s RFC. Having found

that the ALJ committed error as discussed above, the Court agrees that the RFC must be

reassessed at step four and if necessary, the ALJ should proceed to step five to determine

whether Plaintiff can perform substantial work in the national economy. 

 Finally, Plaintiff argues that when an ALJ fails to give legally adequate reasons for

rejecting the testimony of a plaintiff or the opinion of a treating or examining physician, the

opinion must be credited as a matter of law. See Lester, 81 F.3d at 834. Plaintiff urges the

Court to exercise its discretion and remand this case for payment of benefits rather than for

further administrative proceedings. 

The Ninth Circuit case law indicates that remand for further proceedings is appropriate

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where enhancement of the record is useful. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004); see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Benecke states that

evidence should be credited and an immediate award of benefits directed when:

1) the ALJ has failed to provide legally sufficient reasons for rejecting the

evidence; 2) there are no outstanding issues that must be resolved before a

determination of disability can be made; and 3) it is clear from the record that the

ALJ would be required to find the claimant disabled were such evidence credited. 

Benecke, 379 F.3d at 593(citing Harman, 211 F.3d at 1178); but cf. Connett v. Barnhart, 340

F.3d 871, 876 (9th Cir. 2003)(holding that the Ninth Circuit retains flexibility in applying the

“credited as true” theory). 

In this case, even if the testimony of Plaintiff and Plaintiff’s psychiatrists were credited as

true, it is unclear whether Plaintiff can be found disabled. Plaintiff’s own description of his

limitations, even if credited as true, do not require a finding that he is unable to perform any

work. While Dr. Kanter, Dr. Tarver, and Dr. Hohenegger are uncontradicted in finding

Plaintiff’s condition of PTSD as limiting, the VA’s final determination characterized Plaintiff as

having “moderately severe impact on employability. Tr. 269. This language is not sufficiently

precise in terms of the SSA. Additionally, with the benefit of a revised RFC, the testimony of a

vocational expert would properly assess under SSA requirements. The Court should remand for

further proceedings rather than payments of benefits. 

//

//

//

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VIII. CONCLUSION

The Commissioner’s determination to deny Plaintiff Disability Insurance Benefits and

Supplemental Security Income contains legal errors and is not supported by substantial evidence. 

Based on the record evidence, the undersigned recommends that the Commissioner’s decision be

REVERSED and REMANDED for further administrative proceedings. A proposed Order

accompanies this Report and Recommendation.

DATED this 26th day of March, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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