UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

MICHAEL PAUL BOUDREAU,

Plaintiff,

v. 

CAROLYN COLVIN, Acting

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-00978-KI

OPINION AND ORDER

Merrill Schneider

Schneider Kerr Law Offices

P.O. Box 14490

Portland, Oregon 97293

Attorney for Plaintiff

Billy J. Williams

United States Attorney

District of Oregon

Janice E. Hebert

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Assistant United States Attorney

1000 SW Third Ave., Ste. 600

Portland, OR 97204-2902

Catherine Escobar

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

701 Fifth Ave., Ste. 2900 M/S 221A

Seattle, WA 98104-7075

Attorneys for Defendant

KING, Judge:

Plaintiff Michael Paul Boudreau brings this action pursuant to section 205(g) of the

Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision

of the Commissioner denying plaintiff’s application for disability insurance benefits (“DIB”) and

supplemental security income benefits (“SSI”). I reverse the decision of the Commissioner and

remand for further proceedings.

BACKGROUND

Boudreau filed applications for DIB and SSI on January 25, 2012, alleging disability

beginning December 31, 2006. The applications were denied initially and upon reconsideration. 

After a timely request for a hearing, Boudreau, represented by counsel, appeared and testified

before an Administrative Law Judge (“ALJ”) on October 17, 2013.

On October 31, 2013, the ALJ issued a decision finding Boudreau not disabled within the

meaning of the Act and therefore not entitled to benefits. The Appeals Council declined to

review the decision of the ALJ on April 1, 2015, making the decision final.

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DISABILITY ANALYSIS

The Social Security Act (the “Act”) provides for payment of disability insurance benefits 

to people who have contributed to the Social Security program and who suffer from a physical or

mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security

income benefits may be available to individuals who are age 65 or over, blind, or disabled, but

who do not have insured status under the Act. 42 U.S.C. § 1382(a).

The claimant must demonstrate an inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected to

cause death or to last for a continuous period of at least twelve months. 42 U.S.C.

§§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his

physical or mental 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. 42 U.S.C. §§ 423(d)(2)(A) and

1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for

determining if a person is eligible for either DIB or SSI due to disability. The evaluation is

carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v.

Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ

determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§

404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are

denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a

medically severe impairment or combination of impairments. A severe impairment is one

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“which significantly limits [the claimant’s] physical or mental ability to do basic work

activities[.]” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe

impairment or combination of impairments, disability benefits are denied. 

If the impairment is severe, the ALJ proceeds to the third step to determine whether the

impairment is equivalent to one of a number of listed impairments that the Commissioner

acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d)

and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is

conclusively presumed to be disabled. If the impairment is not one that is presumed to be

disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the

claimant from performing work which the claimant performed in the past. If the claimant is able

to perform work she performed in the past, a finding of “not disabled” is made and disability

benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the

fifth and final step to determine if the claimant can perform other work in the national economy

in light of his age, education, and work experience. The burden shifts to the Commissioner to

show what gainful work activities are within the claimant’s capabilities. Parra, 481 F.3d at 746. 

The claimant is entitled to disability benefits only if he is not able to perform other work. 20

C.F.R. §§ 404.1520(g) and 416.920(g). 

STANDARD OF REVIEW

The court must affirm a denial of benefits if the denial is supported by substantial

evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less

than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ’s

findings if they “are supported by inferences reasonably drawn from the record[,]” even if the

evidence is susceptible to multiple rational interpretations. Id.

THE ALJ’S DECISION

The ALJ determined Boudreau met the insured status requirements through December 31,

2006, and that he had not undertaken substantial gainful activity since that date. Boudreau’s

severe impairments are affective disorder and personality disorder. However, these impairments,

either singly or in combination, did not meet or medically equal the requirements of any of the

impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ thought Boudreau could

perform light work, so long as the detailed tasks are not highly complex (i.e. not more than SVP

4) and so long as he has only occasional, brief, superficial contact with the public and coworkers. Given this residual functional capacity (“RFC”), the ALJ concluded Boudreau could

perform his past relevant work as a dump truck driver. Alternatively, he could perform other

work in the national economy, such as janitor or inventory clerk. Accordingly, the ALJ

concluded Boudreau was not disabled within the meaning of the Act.

FACTS

Boudreau, 41 years old on his alleged disability onset date, has work history in the

construction industry, and in management at Sears and Burger King. He also has an employment

history with a few companies at which he could not recall the type of work he performed. He

testified he worked for Chrysler, but there is no evidence to support that.

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Five years before his alleged onset date of disability, Boudreau was admitted to the

Catawba Hospital on June 4, 2001 reporting homicidal and suicidal thoughts upon transfer from

the Roanoke Memorial Hospital. The psychiatrist at Roanoke was concerned Boudreau had an

antisocial personality disorder and was malingering. Boudreau was released after showing no

signs of psychosis after four days. He returned the next day panicking about a lack of shelter,

and was discharged two days later upon securing shelter with the Salvation Army. Three months

later, Boudreau overdosed on Luvox (normally used to treat anxiety, depression and PTSD) and

returned to the hospital. At intake, he reported “stereotyped hallucinations of a little man” which

he did not repeat and the staff psychiatrist felt Boudreau had malingered his symptoms. Tr. 557. 

He also told the therapist that his ex-wife had died by suicide two weeks before. Two years later,

in June 2003, Boudreau was back. He reported being on probation after release in December

2002 from an 18- month jail sentence. He did not remember telling the therapist that his ex-wife

had hung herself, causing the therapist to comment, “There continue to be some variations in his

history that raise issues of reliability.” Tr. 553. He was diagnosed with major depressive

disorder, rule-out dysthymia, rule-out PTSD, alcohol abuse, borderline personality traits, antisocial traits. In November 2005, a little more than two years later, Boudreau returned to Catawba

Hospital, complaining of worsening hallucinations and depression, and concerned he would act

in a dangerous way to himself or others. He revealed he had been released from prison in June

2005 after serving a sentence for stealing a tanker trailer truck and threatening to blow it up. He

was evaluated for potential secondary gain or exaggeration of symptoms. He reported living with

his wife and working in New Jersey, but he left because he could not tolerate the stress. He

reported auditory and visual hallucinations and thoughts of hurting himself or others. He

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presented in a passive, cooperative and fairly pleasant manner. Upon discharge, he carried

diagnoses of depressive disorder, PTSD, alcohol abuse in partial remission, and cluster B

personality disorder.

Boudreau obtained medical and psychiatric treatment for a little over a year–between

January 2008 to late-February 2009–from the New Jersey Department of Corrections. While

incarcerated, Boudreau was prescribed Risperdal and Prozac. He stopped taking the Risperdal in

February 2008, began feeling angry and hostile, with migraine headache, ongoing auditory

hallucinations telling him to harm others, and visual hallucinations of dragons telling him to

harm others. He denied any connection between missing the Risperdal and his auditory and

visual hallucinations. He was placed on watch for psychiatric decompensation for a day and was

released when he had taken his medications and reported feeling better. 

Throughout February and March, Boudreau periodically declined medications. He was

diagnosed with PTSD, psychotic disorder NOS, malingering, antisocial personality disorder, and

a history of major depressive disorder (recurrent, severe, psychotic). Tr. 398. In March 2008,

Boudreau was charged with stealing from the kitchen and lost his job; he said he was responding

to a command hallucination. When asked about it, his psychologist opined that Boudreau

“complains of chronic auditory hallucinations since childhood. However, he has been stabilized

on medication and there is no compelling evidence that the inmate’s mental condition

contributed to the behavior associated with the alleged infraction.” Tr. 394. Boudreau admitted

he had been able to ignore the voices in similar circumstances.

On March 11, 2008, Boudreau reported the medication had not stopped the voices

directing him to steal and, as a result, he refused medications. His doctor replaced the Risperdal

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with Depakote, and the Prozac with Remeron. She noted he appeared stable. Two weeks later,

Boudreau appeared improved and noted his job had presented too many triggers and he was glad

to lose it. He continued to improve in April and his doctor assessed his PTSD as improved. The

Depakote was discontinued in May as it caused Boudreau to have tremors. The Remeron helped

him sleep and the dosage was increased, then decreased a few days later for making him overly

sleepy. Otherwise, he was stable in May and June. He asked to stop taking any medication in

July. He felt more focused and began planning for his release.

During a July 29, 2008 psychiatric evaluation, Boudreau reported that his main problems

were voices, visual hallucinations, and sleep problems. He reported trying to control his

murderous thoughts by engaging in martial arts and art work. Referring to “old records,” his

psychologist noted a long history of suicide attempts. Tr. 332. Old records also indicated six

years of college in business management and science, and different jobs as a truck-trailer driver,

nurse, architect, and construction worker. The plan was for Boudreau to continue without

medication and explore history and diagnosis of manipulative behavior. 

Boudreau remained off psych medications through August. In September, he showed

improvement in his impulsiveness, anger, and manipulating others. His psychologist concluded

Boudreau did not need a referral for psychiatric medication due to his overall stable mood and

affect. Boudreau reported the ability to manage his thoughts, behavior, and emotions, although

he continued to have images and visions of past trauma. He continued to appear stable in

October.

 In November, Boudreau reported increasing frustration with his cell mate, having visions

of murdering older men, and disclosed memories of shooting (but not killing his father) and of

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killing animals and drinking their blood. The psychologist noted, “It is unclear at this point to

what extent [inmate] was attempting to get a reaction from this therapist.” Tr. 303.

Boudreau told a therapist he faced a detainer in Virginia once he was released from New

Jersey; the detainer arose from a parole violation following 18 months in county jail for

“attempted bombing.” Tr. 301. Apparently, Boudreau had stolen a tractor trailer full of gasoline

and planned to blow up the local police station because he was angry with them. The

psychologist recorded Boudreau’s claim to be designing inventions, and to have financial backers

for his designs, and described Boudreau as displaying a bright affect and being grandiose. 

In December, at his request, Boudreau was placed on suicide watch because he expressed

homicidal thoughts toward his cell-mate. He was released the next day after underscoring he had

no plan or intention to act on his thoughts. A few days later, he reported doing much better and

appeared euthymic, calm and lucid. He was psychiatrically stable at the end of December,

looking forward to his release. He thought he could return to his work as an architect and

engineer after release. Tr. 281. He was fine in January 2009, learned that his Virginia detainer

for a parole violation would be dismissed, and was looking forward to his release at the end of

February.

He was back in the emergency room in May 2009 complaining of hearing voices telling

him to jump in front of a car or push someone in front of a car. Tr. 490. He reported suicidal

ideation and cocaine use in July 2009.

Boudreau met with Tom M. Dooley, Psy.D. in April 2012. Dr. Dooley described

Boudreau as a poor historian, with below average intelligence inconsistent with his report of

earning an engineering degree. Boudreau reported a history of sexual abuse at the hands of his

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father, as well as a head injury from his father hitting him with a baseball bat. Boudreau rated his

depression at 3 out of 10 (10 being the worst) and his anxiety at 6 out of 10. He reported

delusional thoughts telling him to hurt himself and others. Dr. Dooley thought Boudreau would

need a payee if he received benefits. Boudreau lived with his partner of 15 months, he did not

socialize with anyone else, and he spent his days working on models, drawing, and watching

television in the evening. Dr. Dooley diagnosed bipolar disorder, schizophrenia, rule out PTSD,

and antisocial personality disorder. He assigned a Global Assessment of Functioning score of

50.1

 

DISCUSSION

Boudreau points to medical record evidence, medical opinion evidence, and the lay

witness statement to support his argument that the ALJ failed to fairly assess the evidence

supporting the existence of his audio and visual hallucinations. The ALJ found not credible

Boudreau’s testimony that he could not work because of his hallucinations and anger and that he

had a history of killing and mutilating animals, that he beat his ex-wife and her boyfriend with a

bat, and set the house on fire, that he attended Boston University and Massachusetts institute of

Technology, and that he worked for Chrysler designing cars. At the same time, the ALJ accepted

Boudreau’s criminal history for assault, arson, grand theft, animal cruelty, and attempted

manslaughter.

1The GAF is a scale from 1-100, in ten point increments, that is used by clinicians to

determine the individual's overall functioning. A GAF of 41 to 50 means “Serious symptoms

(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious

impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a

job). The American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders 34 (4th

 ed. 2000) (“DSM-IV”). The most recent edition of the DSM eliminated the

GAF scale. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012). 

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The ALJ concluded from Dr. Dooley’s report that Boudreau had good concentration

without significant distractibility, there was no sign of delusions or hallucinations, and Boudreau

could cooperate and function, even though Boudreau said he was too angry to look for a job. 

I. Boudreau’s Credibility

The ALJ found Boudreau not credible because of his daily activities, inconsistent

statements about his work history, his convictions (namely for theft), inconsistent statements

about his drug and alcohol use, and minimal treatment for his impairments.

When deciding whether to accept the subjective symptom testimony of a claimant, the

ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective

medical evidence of one or more impairments which could reasonably be expected to produce

some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The

claimant is not required to show that the impairment could reasonably be expected to cause the

severity of the symptom, but only to show that it could reasonably have caused some degree of

the symptom. In the second stage of the analysis, the ALJ must assess the credibility of the

claimant’s testimony regarding the severity of the symptoms. Id. The ALJ “must specifically

identify the testimony she or he finds not to be credible and must explain what evidence

undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 

General findings are insufficient to support an adverse credibility determination and the ALJ

must rely on substantial evidence. Id. “[U]nless an ALJ makes a finding of malingering based

on affirmative evidence thereof, he or she may only find an applicant not credible by making

specific findings as to credibility and stating clear and convincing reasons for each.” Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 

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Boudreau does not challenge the ALJ’s findings with regard to his daily activities, his

convictions, or his inconsistent statements. I note that it is not clear to me–and should be the

subject of further exploration–whether Boudreau’s statements about his engineering degree and

work at Chrysler (and similar statements) are symptoms of his impairment or appropriate

credibility considerations. 

With regard to the ALJ’s interpretation of the medical record, and lack of treatment, the

ALJ’s interpretation of the record is not supported by substantial evidence. As Boudreau points

out, the ALJ did not mention the hallucinations Boudreau described in 2005 at Catawba Hospital,

did not report the hallucinations in prison (other than the theft incident), and ascribed an opinion

to Dr. Dooley about the lack of delusional signs when he did not make that observation. In

addition, the ALJ did not discuss the May 2009 report to the emergency room for hallucinations. 

While she viewed Boudreau’s mental health record in jail as demonstrating stability, the record

reflects improvement while on medication (mostly the anti-depressant Mirtazapine) and in

therapy, Tr. 305-394, but in November and December 2008 Boudreau reported homicidal

ideation and appeared grandiose in his plans upon release from prison. Tr. 303, 301. He was

released in February 2009, but was back in the emergency room three months later complaining

of hearing voices. It is “error to reject a claimant’s testimony merely because symptoms wax and

wane in the course of treatment.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). 

Further, any improvement while in jail should also be considered in the context of “being treated

and while limiting environmental stressors” which “does not always mean that a claimant can

function effectively in a workplace.” Id. 

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Additionally, the ALJ referenced Boudreau’s lack of treatment in 2006 and 2007, and the

records from 2009 consisting only of emergency room reports. To the extent the ALJ questions

the severity of Boudreau’s symptoms due to a lack of treatment, she failed to explore the reasons

for it. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

 Cir. 2008) (some internal citations

omitted) (“unexplained or inadequately explained failure to seek treatment or to follow a

prescribed course of treatment” is a valid reason to question testimony); see Orn v. Astrue, 495

F.3d 625, 638 (9th Cir. 2007) (failure to obtain medical care due to lack of funds or insurance not

a clear and convincing reason). In addition, “it is a questionable practice to chastise one with a

mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v.

Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (internal quotation omitted). 

The comments of prison providers about the possibility of Boudreau malingering or

exaggerating his symptoms would be a sufficient basis to question his testimony regarding his

hallucinations. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (tendency to

exaggerate symptoms is valid reason to support a negative credibility finding). However,

although the ALJ mentioned a “pattern of manipulative behavior and malingering” in the context

of evaluating Boudreau’s severe impairments, contrary to the Commissioner’s assertion, she did

not expressly rely on such a pattern in assessing Boudreau’s credibility. Compare Tr. 21 with Tr.

23-25 (mentioned prison doctor’s notation of manipulative behavior in prison). Notably, Dr.

Dooley found Boudreau to be “forthright and cooperative[.]” Tr. 436.

In short, the ALJ did not adequately evaluate the evidence supporting Boudreau’s

hallucinations or delusions. The weakness of the other credibility considerations causes me to

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reverse and remand for further findings. Additionally, since I am reversing and remanding, I do

not address the remainder of Boudreau’s arguments.

II. Further Development of the Record

A Social Security ALJ has an “independent duty to fully and fairly develop the record and

to assure that the claimant’s interests are considered.” Tonapetyan, 242 F.3d at 1150 (internal

quotation omitted). 

The record here is inadequate to adequately assess Boudreau’s mental impairments. 

While the ALJ gave “significant weight” to Dr. Dooley’s report and found it supported her

finding that Boudreau could perform his past work or other work in the national economy, a

review of Dr. Dooley’s conclusion does not appear to support that outcome. Dr. Dooley

summarized Boudreau’s condition as follows:

Michael Boudreau is a 46-year-old, once divorced male. He was born in a

very abusive and chaotic household where he was sexually molested from five to

seventeen years of age. He reportedly had a head injury at the hand of his father

and claims that he has heard voices from that time onward.

He had a significant work history, reportedly working at Chrysler

designing vehicles for eight years until he quit. His last job was when he was

thirty-six years old. He appears to have a significant criminal history, which is

listed above, which resulted in fifteen years total in prison. He appeared to live a

drug and alcohol centered life up until the age of forty-two, but minimizes his

issues now. Even though he states he is an alcoholic, he drinks occasionally once

a week. His veracity of some of his historical data was questionable. He does not

like being around people and has violent tendencies.

He claims that he has voices in his head telling him to hurt himself and

other people. He presented as below average IQ, even of borderline IQ, with poor

social judgment. He was psychologically and socially unsophisticated, despite the

fact that he claims he got a B.A. in Engineering and worked at Chrysler for eight

years designing vehicles.

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He appears to depend heavily on his partner who is on SSI benefits. He

isolates and makes science fiction models for eighteen hours a day. He does not

appear to be interested or looking for work at this time. He is noncompliant with

any kind of doctor’s advice and is not interested in any type of counseling or

looking for work. The client appears to have a Personality Disorder and has no

interest in counseling or following doctor’s orders.

Tr. 437-38. Indeed, the doctor’s assessment of Boudreau’s functioning at GAF 50, indicating

serious symptoms, does not square with the ALJ’s decision to give his opinion “significant

weight” in support of her finding that Boudreau is capable of performing work. While she gave a

satisfactory reason to give little weight to the score itself, her decision to reject the GAF as

unsupported by the record suggests she misconstrued the doctor’s conclusions about Boudreau’s

functioning.

III. Remedy

The court has the discretion to remand the case for additional evidence and findings or to

award benefits. McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). The court has

discretion to credit evidence and immediately award benefits if the ALJ failed to provide legally

sufficient reasons for rejecting the evidence, there are no issues to be resolved before a

determination of disability can be made, and it is clear from the record that the ALJ would be

required to find the claimant disabled if the evidence is credited. Garrison, 759 F.3d at 1020.

Since there are additional issues to be resolved by the ALJ, I remand for further

evaluation of Boudreau’s mental impairments, to include objective testing if necessary to fully

assess Boudreau’s functioning.

///

///

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CONCLUSION

The decision of the Commissioner is reversed. This action is remanded to the

Commissioner under sentence four of 42 U.S.C. § 405(g) for rehearing to further develop the

record as explained above. Judgment will be entered.

IT IS SO ORDERED.

DATED this 10th day of June, 2016. 

 /s/ Garr M. King 

Garr M. King

United States District Judge

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