United States District Court, D. Alaska
MICHAEL S. GURNETT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
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 Act”)
respectively, [1] alleging disability beginning October 11,
2007.[2] Mr. Gurnett has exhausted his
administrative remedies and seeks relief from this
Court.[3] He is self-represented in this appeal. The
Court interprets his appeal to argue that the determination
by the Commissioner of the Social Security Administration
(“Commissioner”) that he is not disabled, within
the meaning of the Act, is not supported by substantial
evidence and the Administrative Law Judge (“ALJ”)
committed legal errors.[4] Mr. Gurnett asks for a reversal of the
Commissioner's decision and a remand for calculation of
benefits.[5]
Defendant
filed an answer to the complaint and an answering brief in
opposition.[6]Oral argument was not requested and was not
necessary to the Court's determination. For the reasons
set forth below, Claimant's Motion for Remand at
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.
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.[7]“Substantial evidence” has been
defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”[8] Such evidence
must be “more than a mere scintilla, ” but may be
“less than a preponderance.”[9] In making its
determination, the Court considers the evidence in its
entirety, weighing both the evidence that supports and that
which detracts from the ALJ's conclusion.[10] If the
evidence is susceptible to more than one rational
interpretation, the ALJ's conclusion must be
upheld.[11]
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.[12] In addition, SSI may be available to
individuals who are age 65 or over, blind or disabled, but
who do not have insured status under the Act.[13] Disability is
defined in the Act as follows:
[I]nability 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 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), ''work 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.[16] A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing
of disability.[17] If a claimant establishes a prima facie
case, the burden of proof then shifts to the agency at step
five.[18] The Commissioner can meet this burden in
two ways: (a) “by the testimony of a vocational expert,
” or (b) “by reference to the Medical-Vocational
Guidelines at 20 C.F.R. pt. 404, subpt. P, app.
2.”[19] The steps, and the ALJ's findings in
this case, are as follows:
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.[20]
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.[21] The ALJ also specifically
found the following impairments were not severe: cerebral
trauma/head injury, disorder of the autonomic nervous system,
and degenerative disk disease of the lumbar
spine.[22]
Step
3. Determine whether the impairment is the
equivalent of a number of listed impairments found in 20
C.F.R. pt. 404, subpt. P, App. 1 that are so severe as to
preclude substantial gainful activity. If the impairment is
the equivalent of one of the listed impairments, and meets
the duration requirement, the claimant is conclusively
presumed to be disabled. If not, the evaluation goes on to
the fourth step. The ALJ determined that Mr. Gurnett
does not have an impairment or combination of impairments
that meets or medically equals the severity of a listed
impairment.[23]
Before
proceeding to step four, a claimant's residual functional
capacity (“RFC”) is assessed.[24] Once
determined, the RFC is used at both step four and step
five.[25] An RFC assessment is a determination of
what a claimant is able to do despite his physical, mental,
or other limitations.[26] The ALJ concluded that Mr. Gurnett
has the RFC “to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except he is limited to occasional
climbing of ladders, ropes or scaffolds; frequent, not
constant, overhead reaching with the bilateral upper
extremities; occasional handling with the left, non-dominant,
upper extremity; must avoid concentrated exposure to
excessive vibration; must avoid moderate exposure to
unprotected heights; work is limited to 1- to 4-step tasks
involving only few, if any, workplace changes; and work
limited to frequent, not constant, interaction with the
public.”[27]
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, [28] deemed light-duty and
semi-skilled (SVP 4).[29]
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 other jobs
that exist in significant numbers in the national economy
that Mr. Gurnett can perform, including basket filler, DOT
No. 529.687-010, and hotel/motel cleaner, DOT No.
323.687-014.[30]
III.
BACKGROUND
Mr.
Gurnett was born in Arizona in 1958 and is currently 58 years
old.[31] He was raised in Alaska[32] and resided
in California for an extended time.[33] Mr. Gurnett returned to
Alaska and has continually lived in the state since
2002.[34] He resides with his long-term partner,
who receives disability benefits.[35] Mr. Gurnett can perform
daily living activities on his own without assistance. He
provides some assistance to his partner and they share in
household duties[36] with help from automatic cleaning
machines for the shower and toilet as well as a dish washer
and trash pickup at their apartment complex.[37]Mr. Gurnett
has a family history of mental health issues; his mother has
schizoaffective disorder requiring frequent in-patient
treatment.[38] He recently received his
GED.[39]
Since
October 2007, Mr. Gurnett has not engaged in significant
employment.[40] His employment history consists mostly
of restaurant work and hotel service.[41] He operated
his own restaurant for a time in California.[42] As an adult
living in Alaska, he has worked at numerous locations,
including resorts, hotels, restaurants, and a legal
office.[43]
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.[44] Mr. Gurnett
stayed with the hotel for another three years after
witnessing the homicide, but was ultimately let go in October
2005.[45] He has suffered from chronic
post-traumatic stress disorder following the
homicide[46] as well as severe anxiety, personality
disorder NOS, and somatization.[47] He was treated by a
psychiatrist[48] and a licensed clinical social worker
(“L.C.S.W.”)[49] following the homicide to address
these issues.[50]
Mr.
Gurnett filed a worker's compensation claim concerning
his injuries related to the December 2002 homicide that was
ultimately denied after two employer-sponsored independent
medical examinations (“IME”)[51] were
conducted in 2003 and concluded no medical or psychiatric
issues resulted from the homicide.[52] Mr. Gurnett appealed the
denial of worker's compensation benefits and an
additional IME was conducted.[53] For that IME he also underwent
MRIs of his thoracic and lumbar spine, which revealed disc
degeneration from L2 to L5 and a small disc herniation to the
left of the midline at ¶ 5 that displaced the S1 nerve
root laterally to a mild degree.[54] The administrative record
in this case is unclear as to the outcome of the worker's
compensation benefits appeal.
In
2007, Mr. Gurnett worked as a restaurant server at several
restaurants.[55] In July 2007, Mr. Gurnett's employer
at the time called an ambulance to take Mr. Gurnett to the
emergency room.[56] There, he was assessed with
anxiety.[57] In September 2007, at a different
restaurant, during his second week of employment there, he
was struck in the head by a walk-in freezer door that had
been kicked open by a co-worker.[58] After going to the
emergency room two days after the incident, Mr. Gurnett was
released from the hospital after a head CT scan was deemed
normal.[59]
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.[60] Mr. Gurnett was referred to a
neurosurgeon who diagnosed him with Horner's syndrome
from an “apparent traumatic dissection of his right
distal cervical internal carotid artery.”[61] The
neurosurgeon recommended an angioplasty and stent placement
because Mr. Gurnett was near complete occlusion of his artery
and the carotid stenting would encourage
healing.[62]
Prior
to the neurosurgeon's referral, Mr. Gurnett filed a new
worker's compensation claim regarding the 2007 head
trauma.[63] The insurance company for that claim
sought a neurosurgical IME of Mr. Gurnett[64] and the
examining doctor agreed that surgery was
necessary.[65] Mr. Gurnett underwent a cerebral
angiography on November 15, 2007.[66] A stent was ultimately
not installed by the neurosurgeon because the dissection
appeared to be spontaneously healing on its
own.[67] Mr. Gurnett was prescribed Plavix after
the surgery and monitored.[68]
While
rehabilitating from the artery dissection caused by the blunt
trauma to his head, Mr. Gurnett received treatment from a
physiatrist, [69] who worked with him on cognitive
rehabilitation therapy, [70] received treatment by a certified
speech-language pathologist, [71] had a neuropsychological
evaluation, [72] completed a MMPI-2, [73] and
participated in physical therapy.[74] During this time he was
receiving worker's compensation benefits.[75]
In
2009, another neurosurgical IME was conducted at the request
of the insurance provider for the 2007 head trauma
worker's compensation claim.[76] The IME concluded that
Mr. Gurnett was medically stable and no restrictions were
placed on his ability to return to work.[77] In November
2012, a state mental residual functional capacity assessment
observed that Mr. Gurnett was limited with regard to coping
with complex task instructions, [78] while a state medical
consultant opined that Mr. Gurnett was not credible with
regard to his medical conditions, [79] and a vocational
assessment determined that he could return to his former
employment as a restaurant server.[80]
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.[81] He adds that he tends to
overreact to stimulus, that he reschedules appointments to
avoid crowds, [82] that he rarely socializes with family,
does not socialize with friends, and does not do social
things together with his partner.[83]
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 severe
narrowing of the C6 and C7, osteophytes, and edema;
impairment to the left shoulder including tendinosis and
possible impingement lesion, bursitis, and capsulitis;
radiculopathy of the cervical spine; anxiety; and
depression.[84]
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; (3) 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].”[85] Medical opinions come from three
types of sources: those who treat the claimant; those who
examine but do not treat the claimant; and those who neither
examine nor treat the claimant.[86] “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.”[87]And the opinion of an examining, but
non-treating, source should generally be given more weight
than that of a non-examining source.[88]
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.[89] “If a treating
physician's opinion is not given ‘controlling
weight' because it is not ‘well-supported' or
because it is inconsistent with other substantial evidence in
the record, the Administration considers specified factors in
determining the weight it will be given.”[90] These factors
include the length of the treatment relationship and
frequency of examination, as well as the nature and extent of
the relationship.[91] When weighing a medical opinion,
including that of a treating source that is not controlling,
the ALJ must also consider the extent to which the opinion is
supported by relevant evidence, such as medical signs and
laboratory results; the extent to which an opinion is
consistent with other opinions and evidence in the record;
whether the opinion is within the source's area of
specialization; and other factors such as the familiarity of
the SSA disability benefits process and other information in
the case record.[92]
Applying
these factors means that “[i]n many cases, a treating
source's medical opinion will be entitled to the greatest
weight and should be adopted, even if it does not meet the
test for controlling weight.”[93] However, in some cases,
the treating source's opinion may not be entitled to the
greatest weight. But “an ALJ may reject a treating
doctor's medical opinion, if no other doctor has
contradicted it, only for ‘clear and convincing'
reasons supported by substantial
evidence.”[94]
Doctors
do not always agree on all matters, and the ALJ is
responsible for determining credibility and resolving
conflicts and ambiguities in medical testimony.[95] But even when
a treating source's opinion is contradicted by the
opinion of an examining physician, the treating source's
opinion is generally “still entitled to
deference.”[96] If a treating source's opinion is
contradicted by another source, an ALJ still may not reject
that treating source's opinion without providing
“specific and legitimate reasons supported by
substantial evidence in the record.”[97] This can be
done by “setting out a detailed and thorough summary of
the facts and conflicting clinical evidence, stating his
interpretation thereof, and making
findings.”[98] When an examining source relies on the
same clinical findings as a treating source, but differs only
in his or her conclusions, the conclusions of the examining
source are not considered “substantial evidence”
sufficient to support rejecting the treating source's
opinion.[99] And when rejecting a treating
source's opinions, the ALJ must do more than just offer
his own conclusions; instead, “[h]e must set forth his
own interpretations and explain why they, rather than the
doctors', are correct.”[100] But an ALJ may
discredit a treating source's opinions that are
“conclusory, brief, and unsupported by the record as a
whole or by objective medical findings.”[101]
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.[102] A certified speech-language
pathologist can provide evidence of the severity of an
impairment, and may also provide evidence of the existence of
a speech or language impairment.[103]
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;[104] (2) the ALJ's reliance on
employer-sponsored IMEs (“EIME”) related to
previous worker's compensation claims that were performed
by doctors who had been severely disciplined;[105] (3) the
reliance on the vocational expert's opinion over a
treating physician's; (4) the ALJ's rejection of Dr.
Rothoff's opinion that Mr. Gurnett is unable to work
full-time in any capacity; (5) the ALJ's complete
dismissal of Dr. Fraser's opinions; (6) the ALJ's
decision to give no weight to Anne Ver Hoef's opinion;
(7) the decision to give no weight to Dr. Carl Rosen's
opinion; and (8) the ALJ's decision to give considerable
weight to one opinion of Dr. Hadley, while ignoring all the
other opinions of that doctor.[106]
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.[107]
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.
Gurnett 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.[108]
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 Rayess, psychiatrist; (3) Dr. Michelle
Rothoff, primary care provider; (4) Dr. Donovan, clinical
psychologist; and (5) Kathy Chastain, A.N.P. Mr. Gurnett also
continued to be treated by Dr. Brinkerhoff and Dr. Rosen.
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.[109] Here, the
ALJ did almost the opposite, assigning “great
weight” and “considerable weight” to two
non-examining sources, assigning “great weight”
to one of two examining sources, and assigning “no
weight” or “little weight” to five treating
sources, and wholly failing to consider one other treating
source. There are of course circumstances in which the ALJ
may depart from the generally applicable relative weights.
But to do so the ALJ must provide either “clear or
convincing reasons supported by substantial evidence, ”
if the treating source's opinion is not contradicted by
another source, or “specific and legitimate reasons
supported by substantial evidence” if the treating
source's opinion is contradicted. The ALJ failed to
satisfy these requirements.
(A)
Mr. Gurnett's Treating Source's Opinions
Cleary Donovan, Psy.D., Michelle Rothoff, 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, [110] as a primary care provider,
and was also involved in his treatment in 2013.[111] Dr.
Rayess treated Mr. Gurnett in the beginning half of 2013 as a
psychiatrist.[112] Dr. Donovan treated Mr. Gurnett as a
counselor using psychotherapy, including cognitive behavior
therapy.[113] The administrative record shows she
started to treat him after he was referred to her by Dr.
Rayess, in June 2013, around the time Dr. Rayess stopped
treating Mr. Gurnett.[114] The last medical record associated
with Dr. Donovan is dated October 29, 2013.[115] The
administrative record also contains treatment records from
Ms. Chastain, A.N.P., beginning in June 2011, for behavioral
health.[116]
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. Gurnett to Dr. Donovan regarding
his activities of daily life.[117] And the ALJ does not
acknowledge a rather important opinion made by Dr. Donovan:
on September 25, 2013 she opined on the parameters Mr.
Gurnett could tolerate in a workplace setting at that
time.[118] To her, Mr. Gurnett is substantially
limited in his ability to work. She opines he needs low noise
and distraction, no quick calculation or adjustments,
adequate orientation and training, as well as an
understanding and supportive supervisor, and to have limited
work hours, approximately a few hours twice per
week.[119]
Dr.
Rothoff's opinions mostly relate to 2011, [120] and she
also completed a “Health Status Report Form” as
well as “Certification of Medical Status” form
for chronic and acute medical assistance in September
2013.[121] Dr. Donavan gave these forms to Dr.
Rothoff to complete.[122] The ALJ gave the opinion in these
forms “no weight” because he determined there was
“no rationale” for it and he deemed it
“without support and [thus]
conclusory.”[123] The ALJ did not discuss any other
opinions expressed by Dr. Rothoff contained in the medical
records dating back to 2011.
Dr.
Rayess diagnosed Mr. Gurnett with PSTD and psychotic disorder
NOS.[124] He opined that, due to Mr.
Gurnett's anxiety and difficulty focusing, any mentally
demanding work would result in significant PTSD symptoms and
Mr. Gurnett could therefore not work in any stressful
environment.[125] He opined that Mr. Gurnett was
markedly affected by these impairments in his ability to
carry out complex instructions and make judgments on complex
work-related decisions.[126] He also opined that Mr.
Gurnett was moderately impaired in his ability to make
judgments on simple work-related decisions, or understand and
remember complex instructions, and that he was mildly
impaired in his ability to understand, remember, and carry
out simple instructions.[127] The ALJ gave
“considerable weight” to Dr. Rayess's opinion
that Mr. Gurnett “experiences ‘marked'
limitations in his ability to carry out complex instructions
and make judgments on complex work-related decisions, ”
but the ALJ did not address Dr. Rayess's other
opinions.[128]
The
ALJ's decision did not mention Ms. Chastain's
opinions that Mr. Gurnett is bipolar[129] and
suffers from anxiety disorder NOS[130] as well as depression
with anxiety.[131]Her records are replete with objective
observations and her subjective impressions of Mr. Gurnett.
She observed, for example, that Mr. Gurnett's
“thought process is grossly tangential and
circumstantial” and that his “impulse
control” is sometimes
“variable.”[132]
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 opinions rendered by Dr. Donavan. And yet Dr.
Donovan is a treating source- her opinions should be given
“controlling weight” if they are
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques and [are] not inconsistent
with the other substantial evidence in [the] case
record.”[133] Even if the ALJ found that they did
not meet that standard, he should have deferred to those
opinions unless there were “clear and convincing
reasons supported by substantial evidence” to disregard
them.[134]And if Dr. Donovan's opinions were
contradicted by another doctor-and the ALJ did not indicate
that this was so-then he still must consider them unless he
provides “specific and legitimate reasons supported by
substantial evidence in the record.”[135] The ALJ
committed legal error by failing to discuss these opinions at
all.
One of
Dr. Donovan's opinions appears to have been presented
through Dr. Rothoff, who completed a form at Dr.
Donovan's request.[136] The ALJ attributed this opinion to
Dr. Rothoff and dismissed it as conclusory. The form did not
leave room for a detailed explanation of the basis for the
opinion, but the opinion, whether it originated with Dr.
Rothoff or Dr. Donovan, does not appear to be either
conclusory or unsupported. The ALJ has a duty to
“conduct an appropriate inquiry” if the ALJ
determines it is necessary to know the basis of the treating
source's opinion.[137] Despite the quirk in the paperwork,
the administrative record indicates that Dr. Rothoff
coordinated her treatment of Mr. Gurnett with that of other
providers at the Anchorage Neighborhood Health Center
(“ANHC”)-Dr. Fraser, Dr. Donovan, and Ms.
Chastain, A.N.P. The opinion thus had the treatment records
from ANHC behind it. And while the ALJ may have
misapprehended Dr. Rothoff's role in Mr. Gurnett's
treatment, and the Commissioner was unable to discern Dr.
Rothoff's field of practice, [138] the Court finds that
Dr. Rothoff was Mr. Gurnett's primary care
provider.[139] Because Dr. Rothoff is a treating
source, the ALJ could not wholly dismiss her opinions unless
he offered specific reasons or if the doctor's opinions
were “conclusory, brief, and unsupported by the record
as a whole.”[140] The ALJ's finding that Dr.
Rothoff's opinion had “no rationale” is
contrary to the record, which is replete with detailed
accounts of the treatment Mr. Gurnett received at ANHC. The
ALJ therefore committed legal error by giving this medical
opinion “no weight, ” and also committed legal
error by disregarding entirely Dr. Rothoff's other
medical opinions from 2011.
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,
”[141] Dr. Rayess also states, in what
appears to be his own handwriting, that Mr. Gurnett has
“PTSD and a personality disorder” as well as
“anxiety and difficulty focusing, ” and that he
“cannot be in any stressful work environment”
because “any work that is demanding mentally will
result in significant PTSD symptoms.”[142] Moreover,
in other records Dr. Rayess states that Mr. Gurnett
experiences “auditory hallucinations” and that
“his thought process is very
circumstantial.”[143] The ALJ does not acknowledge or
address these opinions at all. The ALJ committed legal error
because he must consider all medical opinions, and must give
“clear and convincing reasons supported by substantial
evidence” for disregarding the opinions of treating
sources.[144]
Ms.
Chastain is a nurse practitioner, and thus is not qualified
to “provide evidence to establish an
impairment.”[145] But she is qualified to provide
evidence “to show the severity of [an]
impairment.”[146] The ALJ thus erred in not considering
her opinions to the extent that they show the severity of any
of Mr. Gurnett's opinions.
An
ALJ's legal errors are subject to the harmless error
test.[147] The ALJ's failure to consider Dr.
Donovan's treatment or opinions and his failure to
consider the bulk of Dr. Rayess's opinions were not
harmless. The Court need not decide whether the ALJ's
failure to explicitly state what weight he gave the opinions
of either Dr. Rothoff or Ms. Chastain, A.N.P., was harmless.
Neither opined as to work-related impairments or restrictions
and both diagnosed Mr. Gurnett with anxiety, which the ALJ
found to be a severe impairment. Nonetheless, on remand, the
ALJ is directed to address: all of Dr. Donovan's
opinions, including her opinion about the appropriate
parameters of his work environment; all opinions of Dr.
Rayess; Ms. Chastain's opinions as they relate to the
severity of Mr. Gurnett's impairments; and the opinions
of Dr. Rothoff in light of the two years' worth of
treatment records from ANHC.
Shirley
Fraser, M.D.
Dr.
Fraser, a neurologist, treated Mr. Gurnett after he was
referred to her by Dr. Rothoff.[148] The administrative
record shows that Dr. Fraser began treating Mr. Gurnett in
March 2012.[149] In Dr. Fraser's opinion, Mr.
Gurnett would be unable to work due to the distracting nature
of articulated neurological events affecting his left
side.[150] She described those events as
“seizure-like, or equal to seizure.” In a
physician examination, Dr. Fraser noted
“wasting/atrophy of the left side of his lower chest
and abdomen” and “mild atrophy of the left face,
or his cheek, ” which is where Mr. Gurnett complained
of tremors. She considered these findings to be
“consistent with the diffuse injury” Mr. Gurnett
received that “affect[ed] his autonomic system on the
left side of his body” as well as “the spinal
motor neurons.” She also stated that “she
strongly feel[s]” that when Mr. Gurnett suffered the
left carotid dissection it “involved the left vagus
nerve and some superficial nerves, as well.” And she
opined that his symptoms are “tantamount to a
seizure-like disorder” and “seriously impair his
ability to work, especially when combined with his easily
distract-able and mildly paranoid
personality.”[151] She further opined that the left
carotid dissection that caused Horner's Syndrome probably
also included “a small cord infarct[152] . . .
which is responsible for the left-sided atrophy, weakness,
and muscle spasms that he suffers [and] . . . also probably
accounts for the stiffness and poor movement of his left
foot.”[153]
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.”[154]
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.[155] She treated him for more than a
year[156] and she states that over time, she
became “impressed with the amount of dysfunction [Mr.
Gurnett] has” and that she felt “very strongly
that he is psychiatrically significantly
impaired.”[157] Indeed, she referred Mr. Gurnett to a
psychiatrist, Dr. Rayess.[158] She also observed that
because Mr. Gurnett is very intelligent, it is
“difficult to spot [his functional impairment] on a
casual examination.”[159]
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.”[160]
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. Tolbert initially planned to treat the
dissection aggressively with angioplasty and stent placement
due to the “near complete occlusion of his artery,
”[161]but did not perform either procedure
because the dissection flap was healing.[162] It was
instead monitored and managed with antiplatelet
medication.[163]
Dr.
Tolbert continued to treat Mr. Gurnett 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.”[164] In April 2008, Dr. Tolbert stated Mr.
Gurnett had limitations related to “any risk of
cervical carotid artery injury” including “any
acute rapid change in head position such as with chiropractic
manipulations or being struck in the head
forcefully.”[165]
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. Gurnett 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.”[166] Mr. Gurnett was advised to be very
careful when carrying heavy objects to prevent them from
falling on his head and to take care when descending
staircases where he could fall and strike his
head.[167] Dr. Tolbert evaluated Mr. Gurnett
again on July 22, 2009, and on January 20, 2010, where he
confirmed his specific advisement against chiropractic
manipulation and general advisement against being placed in
situations where one is “likely to be struck forcefully
in the head.”[168]
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.”[169]
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.
Gurnett 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.[170]
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.[171] Moreover, Dr. Tolbert did not repeat
the limitations on snow-machining and ATV riding in his more
recent evaluation of Mr. Gurnett in January 2010.
Nonetheless, on remand, the ALJ is directed to consider Dr.
Tolbert's restrictions on Mr. Gurnett in light of Dr.
Tolbert's specialty and the specific treatment
relationship between the two.
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.[172] In March
2009, Dr. Rosen opined that Mr. Gurnett would suffer from
permanent impairment to his left eye, by way of miosis,
ptosis, and convergence weakness, and that “an office
setting with good lighting” would be an appropriate
setting where Mr. Gurnett could resume work.[173] The ALJ
gave Dr. Rosen's opinion no weight.[174] Again,
the reason stated by the ALJ for the rejection of the opinion
was that Dr. Rosen gave “no rationale” for the
opinion and thus he found it conclusory.[175]
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.”[176] Dr. Rosen is a treating source, a
specialist, and has an extensive physician-patient
relationship with Mr. Gurnett. His opinion should not have
been wholly discarded by the ALJ as merely conclusory.
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.[177] Dr. Hadley first conducted a
physiatric consultation and then worked with Mr. Gurnett
during his rehabilitation from the 2007 head trauma using
cognitive rehabilitation therapy.[178] In April 2009, Dr.
Hadley specifically found that Mr. Gurnett could not work as
a formal waiter, busser, small business owner, kitchen and
hotel manager, porter, or as a restaurant or coffee shop
manager.[179] And she also predicted at that time
that Mr. Gurnett will realize a permanent partial impairment
from the 2007 head trauma, although she declined to perform
the rating herself; but Dr. Hadley predicted that Mr. Gurnett
would be capable of performing light work when he reached
medical stability.[180]
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.[181]
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.[182] Second,
Dr. Hadley treated Mr. Gurnett until at least August 11,
2010.[183] The only mention of Dr. Hadley's
opinions is the one reference to her 2009
“prediction”-notably not a current
assessment.[184] The ALJ must consider all medical
opinions, whatever their source. He failed to do so by
apparently ignoring Dr. Hadley's opinion that Mr. Gurnett
could not work as a formal waiter, busser, small business
owner, kitchen and hotel manager, porter, or as a restaurant
or coffee shop manager.
Anne
Ver Hoef, S.L.P.
Anne
Ver Hoef, S.L.P., worked with Mr. Gurnett from September 2008
until September 2010.[185] She provided cognitive-language
rehabilitation that was coordinated with Dr. Hadley, Dr.
Spaulding, and Dr. Tolbert.[186] In August 2009, Ms. Ver
Hoef opined that Mr. Gurnett would “not do well in the
fast paced, multi-taking world of restaurant
work”[187] and in June 2009 opined that he would
not do well as a manager in a store, restaurant, hotel,
coffee shop, or kitchen, or as a waiter, busser, or
porter.[188]
The ALJ
rejected Ms. Ver Hoef's opinion regarding Mr.
Gurnett's ability to return to work as a waiter as
conclusory and gave it no weight.[189] The ALJ also points
out in his decision that determinations that someone is
“disabled” or “unable to work” as
defined by the Act are dispositive administrative findings,
not medical opinions.[190] The Commissioner argues that Ms.
Ver Hoef was not an acceptable medical source qualified under
the regulations to render a medical opinion and reiterates
that the agency has responsibility for determining whether
someone is disabled or unable to work.[191]
The ALJ
erred in rejecting wholesale Ms. Ver Hoef's 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 medical
providers that fall within the realm of dispositive
administrative findings are not treated as medical opinions
afforded special deference, neither are they to be rejected
entirely.[192] First, Ms. Ver Hoef specifically
discusses her experiences while working with Mr. Gurnett in
simulated “waiter settings” that were included as
part of his rehabilitation.[193] This discussion alone shows
her opinion was not conclusory. Second, a speech-language
pathologist, such as Ms. Ver Hoef, is specifically permitted
to provide a medical opinion to establish speech or language
impairments.[194]
On
remand, the ALJ is directed to evaluate all of Ms. Ver
Hoef's 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.[195] Consequently, the evidence from Mr.
Gurnett's speech-language pathologist should be
considered, in addition to other objective medical records,
to determine whether he has a speech or language impairment,
and if so, how severe it is as well as how it impacts his
ability to work.
(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.[196] And, generally, the ALJ will
“give more weight to the opinion of a source who has
examined [the claimant] than to the opinion of a source who
has not examined [the claimant].”[197]Mr.
Gurnett claims that the ALJ erred in the relative weight he
assigned to the opinions of several non-treating sources.
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. Gurnett's spine.[198] MRIs were completed
shortly thereafter.[199] Dr. Levine then diagnosed Mr.
Gurnett with a normal thoracic spine, but noted on the lumbar
spine some multilevel degenerative changes with some disc
abnormality at most levels, and a small protrusion left of
midline considered a small herniation contacting the S1 nerve
root.[200] He opined that Mr. Gurnett had a three
percent whole person impairment from these spinal
issues.[201] The ALJ does not discuss Dr.
Levine's opinion at all in his decision; however, he does
discuss the underlying MRI and concluded that Mr.
Gurnett's degenerative disease of the lumbar spine was
not a severe impairment.[202] The ALJ did find that Mr.
Gurnett had a severe impairment of degenerative disc disease
of the cervical spine.[203]
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.[204] At that
time, he also found Mr. Gurnett was not medically stable. In
April 2008, post-angiograph, Dr. Williams conducted the
second EIME. In it, he opined that Mr. Gurnett had reached
medical stability and that he did not have a permanent
impairment, but that he should not lift greater than 50
pounds on an occasional basis.[205]
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.”[206] He stated he did so because the EIME
conclusions were made based on information only up until
April 2008 and subsequent records revealed worsening of Mr.
Gurnett's left shoulder impairment since
then.[207]
Dr.
Vincent conducted an EIME in September 2009, again at the
behest of the insurance company for Mr. Gurnett's former
employer.[208] Dr. Vincent confirmed that the 2007
head trauma injury Mr. Gurnett sustained was the substantial
cause on a “more-than-probable-than-not-basis” of
Mr. Gurnett's left carotid dissection and Horner's
syndrome.[209] Dr. Vincent also opined that Mr.
Gurnett had reached medical stability[210]and that
Mr. Gurnett “absolutely has a [zero] percent
impairment” from his left carotid artery dissection as
it would relate to his brain.[211] The ALJ gave Dr.
Vincent's opinion that the left carotid artery dissection
had a zero percent impairment great weight because he found
it reliable after considering the evidence.[212]
Dr.
Dennis, the state psychological consultant, conducted a
review of Mr. Gurnett'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.[213] Dr. Dennis, so far as the Court can
glean from the record, did not conduct any examination of Mr.
Gurnett. The ALJ gave “great weight” to Dr.
Dennis's opinion that Mr. Gurnett “had no
significant limitations in activities of daily living or
social functions, but is limited from complex task
instructions.”[214]
Dr.
O'Brien, the state medical consultant, also conducted a
review of Mr. Gurnett's medical records. He opined that
Mr. Gurnett was not credible and could return to work as a
server.[215] He also opined that Mr. Gurnett had
limitations when reaching overhead with either arm, could
only occasionally climb ladders/ropes/scaffolds; could only
occasionally lift or carry fifty pounds, but could frequently
lift or carry twenty-five pounds; could stand, walk or sit
for about six hours in an eight-hour workday, and should
avoid constant overhead reaching; but otherwise Dr.
O'Brien identified no restrictions on Mr. Gurnett's
physical abilities.[216] So far as the Court can discern,
Dr. O'Brien, like Dr. Dennis, did not conduct an actual
examination of Mr. Gurnett.
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.”[217] But the ALJ found that Dr.
O'Brien had not adequately considered Mr. Gurnett's
subjective reports and therefore found that Mr. Gurnett was
instead limited to lifting and carrying at the light
exertional level.[218]
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.[219] She claims that there
is no evidence Dr. Williams was not licensed in Oregon when
he conducted the 2007 and 2008 EIMEs and rendered his opinion
in that state.[220] And she claims that Dr. Vincent was
not “formally” disciplined, but rather entered
into a stipulation to informal disposition of a
violation.[221] In response to Mr. Gurnett's
suggestion that the ALJ could not rely on examinations done
at the behest of an insurer, [222] the Commissioner contends
that the initial impetus for the EIMEs is
irrelevant.[223]
The ALJ
did not err in considering the opinions of either doctor. The
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
determining the appropriate weight to give the opinions. The
doctors provided EIMEs in their field of expertise,
i.e., neurosurgery. Neither opined outside their
field of expertise. In fact, Dr. Vincent specifically
recommended other specialized EIMEs when prompted to answer
questions outside the field of neurosurgery. Consequently,
neither doctor was prohibited from conducting the EIMEs, and
the underlying purpose for the EIMEs does not preclude their
consideration in these proceedings.[224] Lastly, the ALJ did
not wholesale adopt their recommendations and instead
evaluated them in light of all the evaluations in the
administrative record before him. The Court does not find
error in this regard.
(3)
Lay Opinion of Mr. Constantino
“‘[C]ompetent
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.'”[225]
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.
Constantino was aware of Mr. Gurnett's head trauma,
prolonged absence from the workforce, and lack of previous
experience in clerical work.[226]
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.
Constantino “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.[227]
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
record supporting the gravity of limitations described by Mr.
Constantino.[228]
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.[229] Moreover, the Commissioner
argues, the ALJ could properly reject the lay opinion when it
was inconsistent with the clinical evidence.[230] Mr.
Gurnett counters that Mr. Constantino is qualified to opine
on his ability to perform at his job as an injured worker
because he has been a practicing attorney for thirty years,
has helped to write Alaska disability law, and has served as
a neutral hearing officer for the Alaska worker's
compensation board.[231]
The
Court finds the ALJ erred in according only “limited
weight” to Mr. Constantino'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.[232] Mr. Constantino did not “simply
parrot” Mr. Gurnett's subjective
complaints.[233] Rather, Mr. Constantino-who, like Mr.
Gurnett's treating sources and unlike either the state
examiners or the ALJ, worked closely with him over a lengthy
period-specifically expressed his belief in Mr. Gurnett's
“genuine desire to succeed” by stating he
“never questioned Mr. Gurnett's motivation or
desire to succeed at his job” and that “it was
obvious to the entire staff that [Mr. Gurnett] was serious
about his job [and] trying his best.”[234] But more
importantly, Mr. Constantino's opinion was based not on
Mr. Gurnett's representations to Mr. Constantino, but on
Mr. Constantino's personal observation of Mr.
Gurnett's performance on the job. Thus, even if Mr.
Gurnett's credibility was properly discounted, it would
not justify disregarding Mr. Constantino's objective
observations.
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.[235]
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. Gurnett
The ALJ
is charged with determining credibility, resolving conflicts
in testimony, and resolving ambiguities in the
record.[236] In order to find a claimant's pain
or symptom testimony not credible, the ALJ must make two
findings.[237] First, the ALJ “must determine
whether the claimant has presented objective medical evidence
of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms
alleged.”[238] Second, “if the claimant has
produced that evidence, and the ALJ has not determined that
the claimant is malingering, the ALJ must provide
‘specific, clear and convincing reasons for'
rejecting the claimant's testimony regarding the severity
of the claimant's symptoms.”[239]
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.”[240] An ALJ “does not
provide specific, clear, and convincing reasons for rejecting
a claimant's testimony by simply reciting the medical
evidence in support of his or her residual functional
capacity determination.”[241] In short, the ALJ must
specify which testimony he finds not credible, and then
provide clear and convincing reasons, supported by evidence
in the record, to explain that credibility determination.
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.[242]
Specifically, the ALJ found that Mr. Gurnett's statements
regarding: (1) the severity of Horner's syndrome were not
wholly credible;[243] (2) the severity of his cervical spine
impairment were not wholly credible due to a lack of
objective evidence and the lack of consistent and significant
clinical findings;[244] (3) the left shoulder impairment were
inconsistent with objective medical evidence, his
treatment-seeking behavior, and the nature of the treatment
he received for his shoulder;[245] (4) cognitive impairment
were not consistent with objective medical evidence or his
examination results and thus not wholly
credible;[246] (5) anxiety and PTSD symptom severity
were not supported by objective evidence, his
treatment-seeking behavior, or clinical findings and thus not
wholly credible;[247] and (6) debilitating side effects of
his medications were not wholly credible.[248] The ALJ
also pointed to other reasons to question Mr. Gurnett's
credibility, including his tendency “to exaggerate
symptoms, ” his ability to perform activities of daily
living not only for himself, but also for his mentally
impaired partner. The ALJ also identified certain comments
made by doctors regarding Mr. Gurnett's poor effort in
physical exertion tests and simultaneous capacity to be a
poor historian and yet recall specific details on other
matters.[249]
Mr.
Gurnett responds that being over-reactive is not the same
thing as exaggerating.[250] And he points to medical evidence
in the administrative record to support his claims and refers
to other providers that are not in the record, e.g.,
“Dr. Cherry.”[251] The Commissioner asserts
that Mr. Gurnett is merely unhappy with the ALJ's
interpretation of the evidence, and even though Mr. Gurnett
has an alternate interpretation, it is the ALJ's
responsibility to weigh the evidence, [252] and that
the ALJ provided legally sufficient reasons for finding Mr.
Gurnett's statements not entirely credible.[253]
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. Gurnett'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.[254] The ALJ is obligated to provide
“‘specific, clear and convincing reasons for'
rejecting his statements regarding the severity of his
symptoms”[255] on remand should he continue to find
that Mr. Gurnett's statements related to the intensity,
persistence, and limiting effects of his symptoms are not
credible.
(5)
Factual Errors and Mischaracterizations 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;[256] (3) that the neuropsychology
evaluation conducted of Mr. Gurnett was in 2009; and (4) that
Mr. Gurnett did not receive treatment at Providence and ANHC
prior to 2013.[257] The Commissioner admitted to the first
three errors and argues that they are harmless and thus this
Court cannot take action on them.[258] The Commissioner did
not respond to the fourth claim of factual error.
“An
error is harmless only if it is ‘inconsequential to the
ultimate non-disability
determination.'”[259] The first three errors Mr.
Gurnett points out to do not impact his disability
determination and thus are inconsequential and harmless.
Regarding the neuropsychological evaluation, the year it was
conducted is relevant to establish that it occurred after the
alleged onset date of disability, i.e., October
2007. But as between 2008 and 2009 it does not matter. If the
ALJ had chosen to ignore the evaluation or had pre-dated it
to substantially before the alleged onset date, then there
may be cause to address the error. As it is, any factual
misstatement as between 2008 and 2009 is harmless.
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. Gurnett 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, [260] and he saw Dr. Fraser beginning in
March 2012.[261] Moreover, he was seen by Ms. Warnock,
L.C.S.W. regularly from April 2006[262]to November
2007.[263] On remand, the ALJ is directed to take
into consideration Mr. Gurnett's seven-year-plus span of
on-going anxiety issues when making a credibility
determination about his statements related to the intensity,
persistence, and limiting effects of the impairment as well
as its impact on his other impairments.
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 therapy;[264] and (4)
that he did not move apartments by himself, but instead hired
movers.[265]
The
Commissioner specifically responded to the third and fourth
mischaracterization 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.'”[266] The Commissioner also asserts that
even if Mr. Gurnett stopped his physical therapy because of a
lack of ...