223 F. Supp. 3d 1108
D. Or.2016Background
- Melody Anderson received an earlier favorable DIB decision (CPD) dated June 11, 2008 finding disability beginning May 31, 2006; a continuing disability review was recommended.
- SSA determined medical improvement occurred and terminated benefits effective January 1, 2012; DHO and ALJ upheld cessation after hearings; Appeals Council denied review.
- Relevant impairments: bipolar disorder, anxiety disorder, fibromyalgia, history of obesity (post-bariatric), plus complaints of sleep apnea, incontinence, tremor, and ADHD.
- ALJ found medical improvement related to work ability, assigned an RFC for modified light work with mental/interaction limits, discounted certain provider opinions (a treating LCSW and an examining psychologist), and relied on state agency consultants and a vocational expert to find jobs available.
- Plaintiff appealed alleging errors: failure to subpoena/take testimony from her counselor, improper weighing of counselor and Dr. Carter (examining psychologist), flawed Listing and RFC analysis, improper credibility finding, inadequate VE hypothetical; she sought an award of benefits.
- District court reversed and remanded for further proceedings, concluding the ALJ erred in discrediting Dr. Carter’s psychological opinions without specific, legitimate reasons and that unresolved conflicts require further development rather than immediate payment of benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ALJ’s refusal to subpoena counselor (LCSW) | Anderson: ALJ should have subpoenaed Ms. Cusick to testify and clarify her statements | SSA: records and Cusick’s email show testimony not essential; ALJ has discretion and no substantial need shown | Denial of subpoena not erroneous—ALJ reasonably found records sufficient and Cusick disclaimed ability to opine on work capacity |
| Weight given to counselor (other medical source) | Anderson: ALJ improperly rejected Cusick’s functional opinion without germane reasons | SSA: Cusick is an “other” source and not qualified to opine on work capacity; ALJ considered treatment record | ALJ erred to the extent he discounted Cusick solely because she was not an “acceptable medical source,” but also relied on Cusick’s own admission she was not qualified—the admission was a germane reason to discount parts of her opinion |
| Weight given to examining psychologist (Dr. Carter) | Anderson: ALJ improperly gave limited weight to Dr. Carter’s psychological conclusions; they should be credited | SSA: State agency reviewers contradicted Carter; ALJ legitimately favored reviewers and questioned Carter’s scope/context | Court: ALJ failed to give specific, legitimate reasons for discounting Dr. Carter’s psychological opinions (not merely parts outside her specialty or because report was for litigation); error requires remand for further consideration |
| Credibility / symptom testimony | Anderson: CPD found her credible; current ALJ lacked clear and convincing reasons to discount symptoms | SSA: ALJ pointed to inconsistencies with contemporaneous medical records and activities of daily living | Court: ALJ provided sufficiently specific, clear, and convincing reasons (inconsistencies with medical records and daily activities); credibility finding upheld |
Key Cases Cited
- Attmore v. Colvin, 827 F.3d 872 (9th Cir. 2016) (standard for comparing current medical severity to most recent favorable decision in cessation cases)
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (requirements for rejecting lay or "other" source testimony; reasons must be germane)
- Stout v. Comm’r, 454 F.3d 1050 (9th Cir. 2006) (ALJ must give reasons when discounting competent testimony from non-acceptable medical sources)
- Lester v. Chater, 81 F.3d 821 (9th Cir. 1995) (ALJ must give specific, legitimate reasons to reject examining physician’s opinion)
- Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190 (9th Cir. 2004) (deference to rational ALJ interpretations when evidence permits multiple rational readings)
- Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014) (standards for remanding for benefits versus further proceedings)
- Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014) (articulation of the credit-as-true framework)
- Dominguez v. Colvin, 808 F.3d 403 (9th Cir. 2015) (clarifies multi-step test for crediting improperly rejected evidence)