IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

 

 

SHYANNE GATTMAN,

Plaintiff,

3:15-cv-00466-MC

OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner of Social Security,

Defendant.

 

MCSHANE, Judge:

Plaintiff Shayanne Gattman filed this action March 23, 2015, seeking judicial review of

the Commissioner of Social Security's final decision denying her application for disability

benefits under Title II and supplemental security income (SSI) under Title XVI of the Social

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Security Act (the "Act"). This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C.

§ 405(g) and 1383(c)(3). 

Plaintiff filed applications for benefits on January 27, 2011. The administrative law

judge (ALJ) determined Plaintiff is not disabled. Tr. 19-33.1

 Because the Commissioner’s

decision is not based on proper legal standards and is not supported by substantial evidence, the

Commissioner’s decision is REVERSED and this matter is remanded for additional proceedings

consistent with this Opinion.

STANDARD OF REVIEW

A reviewing court shall affirm the Commissioner’s decision if the ALJ applied proper

legal standards and the legal findings are supported by substantial evidence in the record. See 42

U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004). "'Substantial evidence' is more than a mere scintilla, but less than a preponderance; it is

such relevant evidence as a reasonable person might accept as adequate to support a conclusion."

Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)(quoting Sandgathe v. Chater, 108 F.3d 978,

980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the

administrative record as a whole, weighing both the evidence that supports and that which

detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the

evidence can reasonably support either affirming or reversing, ‘the reviewing court may not

substitute its judgment’ for that of the Commissioner.” Guiterrez v. Comm’r of Soc. Sec. Admin.,

1

“TR” refers to the Transcript of the Social Security Administrative Record [#12]

provided by the Commissioner.

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740 F.3d 519, 523 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.

1996)).

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (2012). The initial burden of

proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden

with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R.

§§ 404.1520, 416.920. At step five, the Commissioner’s burden is to demonstrate that the

claimant is capable of making an adjustment to other work after considering the claimant’s

residual functional capacity (RFC), age, education, and work experience. Id.

At step two the ALJ found plaintiff’s “polysubstance dependence (in reported partial

remission), posttraumatic stress disorder (PTSD), a generalized anxiety disorder, depressive

disorder NOS, and status post T12 fracture in 2011 with no neurological involvement” qualified

as “severe” impairments under the regulations. Tr. 21.

The ALJ found plaintiff had the residual functional capacity (RFC) to perform less than

the full range of light work, she can occasionally engage in all postural activities, with incidental

public contact and occasional contact with coworkers. Tr. 23. A vocational expert testified that

a person with the RFC as stated by the ALJ could perform plaintiff’s past relevant work as a

book binder, data entry clerk, and secretary, all of which are semiskilled to skilled work. Tr. 57,

32. The ALJ determined plaintiff was not disabled under the Social Security Act. Tr. 33.

Plaintiff argues the ALJ erred in weighing certain medical and other opinions. I agree.

Scott Alvord, Psy.D.

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Where there exists conflicting medical evidence, the ALJ is charged with resolving any

conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). “If a treating or examining

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

providing specific and legitimate reasons that are supported by substantial evidence. . . .” Id.

(quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) If a treating or examining

physician’s opinion is not contradicted by another physician, the ALJ may only reject it for clear

and convincing reasons. Orn v. Astrue, 495 F.3d . 625, 632 (9th Cir. 2007). 

Dr. Alvord examined plaintiff on April 21, 2011. Tr. 379-88. He administered extensive

psychological testing as well as a mental status examination and recorded his behavioral

observations. Dr. Alvord noted plaintiff displayed “significant physically manifested anxiety

such as glancing around the room, jumping at noises in the hall, drumming her fingers on the

table; her voice quavered and she spoke very softly in a timid fashion.” Tr. 382. Dr. Alvord

found plaintiff retained the ability to follow simple instructions, but her ability to follow complex

instructions was mildly impaired. Tr. 382. Her ability to concentrate, persist, and pace was

mildly to moderately impaired. Id. Dr. Alvord concluded plaintiff has chronic generalized

anxiety disorder with acute PTSD superimposed, depressive disorder, and rule-out major

depressive disorder, with a GAF of 50. Tr. 387.

Dr. Alvord’s opinion regarding concentration, persistence, and pace is consistent with the 

October 2012 opinion of Donald E. Lange, Ph. D., who conducted an extensive interview and

comprehensive neuropsychological report. Tr. 703-16. Dr. Lange administered a number of

tests and concluded plaintiff’s concentration would “wax and wane, especially in the presence of

performance anxiety and rumination.” Tr. 713. Similarly, examining physician Lawerence H.

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Moore, Ph.D., opined in April 2011 that plaintiff had “poor concentration.” Tr. 374. In May

2011 reviewing physician Eugene Kester, M.D., found plaintiff moderately limited in the ability

to maintain concentration, persistence, and pace, and capable of simple, routine tasks with simple

one and two step instructions. Tr. 69. In November 2011 reviewing physician John F. Robinson,

Ph.D., agreed with Dr. Kester’s assessment. Tr. 93-94. In April 2013 treating counselor Lisa

Smith, L.C.S.W., completed a form indicating she had been treating plaintiff since December

2012, and that plaintiff was moderately limited in the ability to: understand , remember and carry

out detailed instructions; and to maintain concentration and attention. Tr. 853-56.

The ALJ gave “some weight” to Dr. Alvord’s opinion, but found plaintiff had only mild

limitations in concentration, persistence, and pace, and therefore retained the ability to perform

her past semi-skilled and skilled work. Tr. 29. The ALJ did not find plaintiff limited to

unskilled work, citing neuropsychological testing which showed plaintiff’s “cognitive

functioning is generally within normal limits. This is also consistent with the record that shows

her cognitive functioning improves significantly when she abstains from Ambien and abusing

over-the-counter sleep medication.” Tr. 28-29. 

The Commissioner contends that plaintiff’s cognitive test results conflict with Dr.

Alvord’s opinion that plaintiff is limited to simple work. However, Dr. Alvord stated that

differences in test scores indicate that verbal comprehension and perceptual organization are

“relative strengths compared to working memory and processing skills (frequently impacted by

anxiety/depression).” Tr. 384. Plaintiff’s limitations in concentration, persistence, and pace do

not arise out of cognitive limitations but from anxiety and depression.

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There is no conflicting evidence in the record as to limitations of concentration,

persistence and pace. The ALJ failed to identify clear and convincing reasons to reject Dr.

Alvord’s assessment. Orn, 495 F.3d. at 632. On remand, the Commissioner shall credit Dr.

Alvord’s assessment of plaintiff’s concentration, persistence, and pace, and determine at step five

whether there is work in the national economy which plaintiff can perform.

CONCLUSION

The Commissioner’s decision is not supported by substantial evidence. The decision of

the Commissioner is REVERSED and this matter is REMANDED to the Commissioner for

further proceedings consistent with this Opinion.

IT IS SO ORDERED.

Dated this 2nd day of May, 2016.

 

Michael McShane

United States District Judge

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