Abed v. Commissioner Social Security Administration, No. 3:2009cv00160 - Document 31 (D. Or. 2010)
Court Description: OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED for award of benefits. Ordered by Magistrate Judge Dennis J. Hubel. (kb)
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Abed v. Commissioner Social Security Administration Doc. 31 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 PORTLAND DIVISION 10 11 ZAINAB HUSSEIN ABED, 12 Plaintiff, 13 14 Case No. CV 09-160-HU v. MICHAEL J. ASTRUE, Commissioner of Social Security, OPINION AND ORDER 15 Defendant. 16 17 18 Richard Sly 1001 S.W. Fifth Avenue, Suite 310 Portland, Oregon 97204 19 20 21 22 23 24 25 26 Linda Ziskin P.O. Box 2237 Lake Oswego, Oregon 97035 Attorneys for plaintiff Dwight Holton Acting United States Attorney District of Oregon Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 Kathryn A. Miller Special Assistant United States Attorney Social Security Administration 27 28 Opinion and Order Page 1 Dockets.Justia.com 1 2 701 Fifth Avenue, Suite 2900 M/S 901 Seattle, Washington 98104 Attorneys for defendant 3 HUBEL, Magistrate Judge: 4 Zainab Abed brings this action pursuant to Section 205(g) of 5 the Social Security Act (the Act), 42 U.S.C. § 405(g), to obtain 6 judicial review of a final decision of the Commissioner of the 7 Social 8 application for Supplemental Security Income (SSI) benefits under 9 Title XVI of the Social Security Act. 10 Security Administration (Commissioner) denying her Procedural Background 11 Ms. Abed filed an application for benefits on July 29, 2004, 12 with an alleged onset date of January 1, 1993. The application was 13 denied initially and on reconsideration. Ms. Abed requested a 14 hearing, which was held before Administrative Law Judge (ALJ) 15 Catherine Lazuran. On December 28, 2007, the ALJ issued a decision 16 finding Ms. Abed not disabled. 17 Ms. Abed sought review by the Appeals Council. On January 6, 18 2009, the Appeals Council denied review. This made the ALJ s 19 decision the final decision of the Commissioner. 20 Ms. Abed was born in 1960, and was 47 years old at the time of 21 the ALJ s decision. She immigrated to the United States from Iraq 22 in 1999. She has no work history in this country. According to the 23 hearing testimony of her husband, Ms. Abed has a college degree in 24 sports and Arabic and taught girls in middle and high school in 25 Iraq. She last worked in 1998. She has some understanding of 26 English, but does not speak it. She alleges disability on the basis 27 28 Opinion and Order Page 2 1 of possible schizophrenia, depression with psychotic features, Post 2 Traumatic Stress Disorder (PTSD), migraine headaches, fibromyalgia, 3 diabetes, and hypothyroidism. 4 Medical Evidence 5 Since March 29, 2002, Ms. Abed has been treated by several 6 doctors in the Providence Medical Group: Dorina Boboia, M.D., 7 Victorya Khary, M.D., Vien Luu, M.D., Terry Olson, M.D., and Linh 8 Dao, M.D., for complaints of pain in her arms and legs, swelling 9 and stiffness in her joints, and headaches. Tr. 179. Lab tests did 10 not indicate a condition that would account for the pain, swelling 11 and stiffness. Tr. 176. For her first few visits, Ms. Abed was 12 accompanied by her husband, who translated for her. Tr. 177. Ms. 13 Abed and her husband attributed the pain to events in 1996, when 14 they escaped from Iraq and lived in the mountains for several 15 months during a cold winter. Tr. 177. 16 Dr. Khary found no swelling, redness or tenderness of the 17 joints upon examination. Id. Dr. Khary noted that the etiology of 18 the leg pain was unclear, but that it [c]ertainly could have been 19 from damage due to her situation in Iraq. Tr. 178. Dr. Khary 20 suggested extra strength Tylenol and prescribed Vicodin as needed 21 for break-through pain. Id. 22 On December 3, 2002, Dr. Luu prescribed salsalate, a non- 23 steroidal anti-inflammatory drug, and gabapentin (Neurontin) for 24 pain. Tr. 176. On December 12, 2002, Dr. Olson found diffuse mild 25 non-localized pain on palpation of her back and both legs, but no 26 sciatic notch pain, effusion or swelling of knees or hips, and no 27 28 Opinion and Order Page 3 1 pain 2 Neurological examination was normal. Tr. 174. Because Ms. Abed 3 complained of pain in the arches of both feet, Dr. Olson diagnosed 4 myofascial pain with plantar fascitis. Tr. 175. He prescribed 5 Effexor, an antidepressant. Id. on passive range of movement or with active exertion. 6 On January 7, 2003, Ms. Abed began complaining of nausea and 7 an episode of vomiting. Tr. 173. On January 14, 2003, Dr. Olson 8 recorded complaints of diffuse pain, mostly in Ms. Abed s calves. 9 Tr. 171. She complained of swelling, but Dr. Olson saw no visible 10 edema. Id. Dr. Olson wrote that her symptoms had not responded to 11 NSAIDs, antidepressants, Tylenol or tincture of thyme. Dr. Olson 12 wrote, Exam has been and remains underwhelming. Labs normal and 13 reviewed 14 fibromyalgia type pain. Id. again. Id. Dr. Olson s diagnostic impression was 15 When Ms. Abed saw Dr. Olson on February 26, 2003, she came 16 with a translator, as her husband had been called up with the 17 military. Tr. 163. Ms. Abed said she had been taking an average of 18 15 ibuprofen a day for pain. Id. She was no longer taking Effexor, 19 as it did not seem to help. Id. She was tearful, and Dr. Olson 20 noted that she had many social stressors and language is a 21 barrier. Id. Dr. Olson diagnosed depression and anemia due to 22 chronic blood loss from menstruation. Id. 23 On March 27, 2003, Dr. Dao noted complaints of pain and 24 swelling in her arms and legs, fatigue, and Tr. 167. She had been 25 taking amitriptyline and trisalate, but they did not help her pain. 26 Id. Dr. Dao noted, [P]ain in extremities of unclear etiology. 27 28 Opinion and Order Page 4 1 Thought it was fibromyalgia but could have peripheral neuropathy, 2 polymyalgia 3 amitriptyline and trisalate and started her on antidepressants, 4 despite the previous ineffective trial of Effexor, and suggested 5 cyclobenzaprine for fibromyalgia. Tr. 168. rheumatica, depression. Id. He discontinued the 6 Ms. Abed saw Dr. Khary on April 29, 2003, and told her that 7 previously-prescribed Fluoxetine and Flexeril did not help her 8 pain. Tr. 165. She was started on trazodone for insomnia and 9 continued on the Fluoxetine. Id. 10 On June 2, 2003, Ms. Abed told Dr. Khary she was sleeping 11 better on the fluoxetine and trazodone, and that the swelling in 12 her legs was improved, though she continued to have pain in them. 13 Tr. 163. She said she was feeling nauseated and dizzy, with daily 14 headaches and difficulty concentrating. Id. 15 On January 29, 2004, Ms. Abed presented at the Providence St. 16 Vincent ER. Tr. 258. She complained of fever, muscle aches, mild 17 sore throat and pain on urination and over her bilateral flanks. 18 Tr. 19 discharged on Tylenol and fluids. On February 6, 2004, Ms. Abed 20 reported this incident to Dr. Khary. Tr. 157. Dr. Khary opined that 21 Ms. 22 sedentary lifestyle. Tr. 158. 258. Abed s She was muscle diagnosed pain was with acute complicated febrile by illness depression and [and] 23 On March 19, 2004, Ms. Abed reported that she had felt dizzy 24 and fallen down, possibly losing consciousness, at the Sunset 25 Transit Center. Tr. 153. She said she had a hard time concentrating 26 and sometimes became nauseated with the dizziness. Id. She also 27 28 Opinion and Order Page 5 1 complained of intermittent pain in her left arm, chest and throat 2 whenever she walked, as well as heart palpitations. Id. A treadmill 3 test on March 20, 2004 was unremarkable. Tr. 250. On April 12, 4 2004, Dr. Khary noted that a CT of the head and an adenosine 5 thallium test had been negative. Tr. 151. 6 On May 6, 2004, Dr. Khary wrote that Ms. Abed had seen war 7 violence in Iraq, including having witnessed the death of her 8 brother. Tr. 148. Her husband was in Iraq and she was living with 9 her 15 year old daughter and 13 year old son. She had been told 10 that to get welfare, she had to take English classes, but did not 11 feel that she could do it. Id. She said she had fallen down at 12 Thriftway, in an episode similar to that at the Sunset Transit 13 center a month earlier. Ms. Abed cried during the office visit. She 14 was on Prozac. Id. Dr. Khary thought her primary diagnosis was 15 depression, and wrote that she would look into counseling for Ms. 16 Abed. Tr. 150. 17 On July 22, 2004, Dr. Khary noted that Ms. Abed had seen a 18 neurologist, Dr. Syna, who had started her on Neurontin and Buspar. 19 Tr. 146. Ms. Abed reported that the medication made her headaches 20 less frequent, but they were still intense. Ms. Abed asked for an 21 increase in her Prozac dose. Id. 22 On August 19, 2004, Ms. Abed was diagnosed with diabetes 23 mellitis, type 2, controlled without medication. Tr. 144. For 24 insomnia, she was given Ativan. Tr. 145. On September 13, 2004, Ms. 25 Abed said the Ativan helped her sleep, and that the Neurontin 26 helped her headaches, but was not covered by her insurance. Tr. 27 28 Opinion and Order Page 6 1 142. 2 On November 29, 2004, Dr. Khary noted that Ms. Abed s blood 3 sugars had been high, and they discussed her going on glucophage. 4 Tr. 137. Ms. Abed continued to complain of dizziness and headaches. 5 Id. 6 On December 3, 2004, Ms. Abed was given a comprehensive 7 psychodiagnostic examination by John Givi, Ph.D. Tr. 122. Dr. Givi 8 wrote that Ms. Abed communicated through an interpreter; as the 9 sole source of information, she appeared to be a poor historian, 10 and gave conflicting responses to questions. Id. 11 She reported having diabetes and hypercholesterolemia, as well 12 as headaches, insomnia and pain. She said she had been diagnosed 13 with depression in Iraq, but denied past and present suicidal 14 ideation and denied having had counseling. Tr. 123. When asked to 15 describe a typical day, she was vague, stating only that she had 16 breakfast at 9 a.m., went to bed at 1 a.m., and stayed in her room 17 for the rest of the day. Id. 18 living (ADLs) as taking one shower a week, being able to dress 19 herself, use a phone, and cook every three days, as well as walk to 20 the grocery store twice a month, clean her apartment, and do her 21 laundry once a month. Tr. 123. She cannot drive. Id. She received 22 some financial assistance from welfare. Tr. 124. She reported her activities of daily 23 Her cognitive ability was estimated to have been in the 24 average range, based on her educational history. Tr. 124. Word 25 recognition skills, some mental status factors, and ability to 26 communicate were hindered by her inability to speak English. Id. 27 28 Opinion and Order Page 7 1 However, 2 communicating through the Arabic speaking interpreter, although she 3 seemed less than willing to be forthright. In Dr. Givi s opinion, 4 she seemed to exaggerate her difficulties, noting this could be a 5 cry for help but also a secondary gain should be legitimately 6 considered. Id. Attention span could not be evaluated because of 7 the language barrier. Tr. 125. She described her mood as depressed, 8 which was congruent with her thought process. Id. Ms. Abed s 9 thought Ms. Abed content did seemed not to appear center to on experience issues difficulty related to my 10 future. She acknowledged being afraid of losing her children and 11 reported that she was experiencing auditory hallucinations. Id. 12 There was no psychotic thought process evident. Id. Dr. Givi 13 concluded that Ms. Abed met the diagnostic criteria for Major 14 Depressive Disorder, Recurrent, Mild. Tr. 126. 15 On December 10, 2004, Robert Henry, Ph.D. did a records review 16 on behalf of the Commissioner. Tr. 130, 279-81. Dr. Henry opined 17 that Ms. Abed was moderately limited in her ability to maintain 18 activities of daily living and social functioning; complete a 19 normal workday; interact appropriately with the general public; 20 maintain concentration, persistence or pace; and set realistic 21 goals or make plans independently of others. Id. 22 On May 11, 2005, Ms. Abed was seen for mental health treatment 23 at Lifeworks Northwest, on referral from Dr. Khary. Tr. 304. She 24 was 25 interpreter. Ms. Abed was seen by Cynthia Martin, M.S., supervised 26 by Ken Ihli, Ph.D. Ms. Abed endorsed symptoms of depression, accompanied by her 27 28 Opinion and Order Page 8 daughter Shahed, who acted as an 1 including sadness, feelings of guilt and worthlessness, irritation, 2 anger, difficulty concentrating, and sleeping, memory problems, 3 constant worry, dizziness, increased appetite, and headaches. Id. 4 She said that when she became angry, her heart raced and she felt 5 as though she was suffocating. She denied suicidal or homicidal 6 ideation. She worried about finances and was angry at her husband 7 for leaving the family to return to Iraq. She had nightmares, and 8 during the day heard constant talking by voices that were trying to 9 distract or confuse her. She said these experiences began when her 10 brother was killed. She also described fleeing Iraq and living in 11 refugee camps. She said she experienced intrusive thoughts of these 12 images. Id. 13 Toward the end of the interview, Ms. Abed became noticeably 14 tired, irritable, and impatient to leave. She spoke only Arabic, so 15 communication 16 examiner to determine level of thought coherence, organization, or 17 intactness of memory. Id. was complicated, and it was difficult for the 18 On May 11, 2005, Ms. Abed reported to Ms. Martin that she 19 continued to experience dizziness, headaches and body pain, as well 20 as difficulty sleeping because of bad dreams. Tr. 303. Ms. Abed 21 said she was unable to leave home because something inside was 22 controlling her, and the voices confuse me. Id. At her next 23 appointment, on May 19, 2005, Ms. Abed refused to answer any 24 questions, saying it didn t help to talk. Tr. 302. Ms. Abed s 25 daughter said she had made her mother come to the appointment, but 26 the session ended early when Ms. Abed said she wanted to leave. Id. 27 28 Opinion and Order Page 9 1 On May 26, 2005, Ms. Abed initially refused to speak. Tr. 301. 2 After Ms. Martin asked Ms. Abed s permission to speak to her 3 daughter, Shahed said her mother did not speak to her either, and 4 that the voices made it so that she cannot attend to others. Id. 5 While the conversation with Shahed was going on, Ms. Abed said she 6 was concerned about the fire alarms, as they spied on her and she 7 was afraid of them. She said she heard voices all the time, and 8 that she wanted them to stop. During the session, Ms. Abed was 9 observed at several points to begin to talk to something only seen 10 by her, laughing a few times. Id. Dr. Ihli consulted with a 11 psychiatrist, Howard Rosenbaum, M.D., who recommended that Ms. Abed 12 be started on Paxil or Zoloft. Id. 13 14 On May 27, 2005, Dr. Luu saw Ms. Abed, noting, depressed ... poor eye contact, quiet. He started her on Lexapro. Id.1 15 On June 1, 2005, Ms. Martin wrote a chart note stating that 16 based on the symptoms Martin had observed, Ms. Abed appeared to 17 meet the criteria for Psychotic Disorder Not Otherwise Specified. 18 Tr. 300. On June 2, 2005, Ms. Abed accused Ms. Martin of trying to 19 spy on her and refused to speak. Tr. 299. Shahed stated that her 20 mother did not want to come and did not think talking about her 21 problems would help. Shahed reported that Ms. Abed s doctor had 22 prescribed Zoloft, and that they were going to the doctor the next 23 day for a recheck. Shahed stated that her mother would not want to 24 see a male doctor. During this time, Ms. Abed continued to speak to 25 1 27 Ms. Abed has been prescribed numerous drugs at different times. The record does not provide a clear picture of her medications over time. 28 Opinion and Order Page 10 26 1 the voices and at times interrupted Shahed to warn her not to speak 2 to the therapist. Id. 3 On June 3, 2005, Dr. Luu wrote, depression, hallucinations, 4 possible schizophrenia vs. psychoaffective disorder. Patient is not 5 able to take any test for her US citizenship... Tr. 326. 6 On June 14, 2005, Ms. Abed saw Dr. Luu. Tr. 324. Dr. Luu 7 assessed 8 Martin, and added Risperdal to her drug regimen. Id. depression with psychosis after speaking to Cynthia 9 On June 14, 2005, Ms. Martin s chart notes stated that Ms. 10 Abed s primary care doctor had called and requested that Ms. Abed 11 be seen by a psychiatrist at Lifeworks. Tr. 298. On June 29, 2005, 12 Shahed 13 appointment, and reporting that her mother was no better. Id. On 14 July 6, 2005, Ms. Abed was terminated from treatment. Tr. 296. Ms. 15 Martin 16 auditory hallucinations, anxiety, fear, paranoia, and depression, 17 she was not able to engage in treatment. Id. 18 left wrote a message that at although Lifeworks Ms. Abed cancelling continued Ms. to Abed s experience On September 8, 2005, Ms. Abed was seen by Dr. Rosenbaum. Tr. 19 295. 20 throughout the interview, with her husband answering all questions. 21 Id. When her husband mentioned the death of Ms. Abed s brother, she 22 stood up and wanted to leave. Otherwise, she sat quietly, although 23 she appeared to be listening closely to what was being said. Id. She was accompanied by her husband. Id. She was mute 24 Ms. Abed s husband explained that he had been in Iraq working 25 with the U.S. Army as an interpreter during the past two and a half 26 years, having returned to the United States two months earlier. Id. 27 28 Opinion and Order Page 11 1 He confirmed that Ms. Abed s brother had been killed in 1991, and 2 that their family had fled to the Kurdish region, pursued by 3 security police. Id. He said he was arrested and spent two years in 4 prison, but was released after the intervention of the United 5 Nations and International Red Cross. Id. They crossed the border to 6 Syria in 1998. From there the family was granted asylum in the 7 United States. Id. 8 Ms. Abed s husband reported that she talked to herself in a 9 nonsensical language and did not talk to anyone else. Id. She 10 usually sat alone in her bedroom. According to Ms. Abed s husband, 11 her current medications were Metformin, Imitrex, Zoloft, thyroid 12 medication, 13 Risperdal. Id. amitriptyline to sleep, Lovastin, Oxybutynin and 14 Dr. Rosenbaum did not have sufficient time to assess Ms. 15 Abed s psychiatric problems, but concluded that [t]he patient is 16 painting a picture of tremendous trauma. ... It may be difficult to 17 refer the patient for psychotherapy given language limitations. 18 Tr. 295. 19 On November 3, 2005, Dr. Rosenbaum saw Ms. Abed with her 20 husband, after trying her on Zyprexa and Zoloft. Tr. 292. Her 21 husband said he had not noted any significant change on the 22 medication. Id. 23 either on the couch or in bed, inactive and withdrawn. Id. She was 24 not reading or watching TV, but sometimes talked to herself. Id. 25 She did not initiate conversation, but would answer yes or no to 26 his questions. Id. Ms. Abed answered a few of Dr. Rosenbaum s He said she spent the day sitting around the house 27 28 Opinion and Order Page 12 1 questions. Id. She repeatedly stated that they are listening to 2 us. Id. She said people talk to her and she doesn t like it, 3 wanting them to leave her alone. Id. Her 16 year old son and 17 4 year old daughter helped with cooking and cleaning. Id. 5 Dr. Rosenbaum concluded that Ms. Abed continues to be 6 psychotic and withdrawn on Zyprexa and Zoloft. He recommended 7 continuing the medications at a higher dose; if she did not 8 respond, other drugs would be tried. Id. 9 On December 6, 2005, Ms. Abed saw Dr. Khary with her husband, 10 who interpreted for her. Tr. 316. He said his wife had been 11 depressed since her brother was killed, but recently her depression 12 was worse and that she had hallucinations. He felt the medication 13 was not helping her. Id. She was not speaking to him or to the 14 children. Id. Dr. Khary observed that Ms. Abed was withdrawn and 15 did 16 questions. Tr. 317. She said a few words to her husband, but 17 nothing else. Dr. Khary noted, Quite a marked change from last 18 time 19 laughing. Id. not I make saw eye her contact last year or speak when she to was Dr. Khary when conversing asked and even 20 On April 19, 2006, Dr. Khary observed that Ms. Abed was very 21 withdrawn, not very talkative. Tr. 314. Her daughter was cooking 22 for her and helping her eat. Id. Ms. Abed just sits all day and 23 stares into space, as well as hearing voices. Id. 24 On April 24, 2006, Dr. Rosenbaum saw Ms. Abed with her 25 daughter. 26 significant change for the past few months, and said she had Tr. 290. Ms. 27 28 Opinion and Order Page 13 Abed s daughter had not noticed any 1 observed her mother in this condition for three or four years, 2 since their father left for Iraq. Id. She believed her mother 3 continued 4 herself. Id. Dr. Rosenbaum noted that Ms. Abed continued to be 5 depressed, withdrawn, apparent psychotic features of auditory 6 hallucinations. Id. He recommended a trial of Cymbalta, but also 7 thought the family should consider a trial of electroconvulsive 8 therapy (ECT), given working diagnosis of psychotic depression and 9 lack of response to medications. Id. He referred them to Kevin 10 to hear voices, and often observed her talking to Smith, M.D., for an ECT consult. Tr. 291. 11 On July 12, 2006, Dr. Khary noted that Ms. Abed was withdrawn. 12 Tr. 13 psychiatrist but no consistent followup. 2 Id. The daughter felt 14 her mother would do better with a female psychiatrist. Ms. Abed s 15 daughter said they had moved to a new apartment, and that Ms. Abed 16 seemed happier there. Ms. Abed s husband was now back with the 17 family. Id. Dr. Khary recommended that the family follow up with a 18 new female psychiatrist to get a fresh opinion. Tr. 313. Dr. 19 Khary gave her several names and telephone numbers. Id. 3ll. Ms. Abed s daughter related that she was seeing a 20 On July 18, 2006, Dr. Khary filled out a Work & Activity 21 Release. Tr. 306. She checked a box titled, No Work or Activity 22 Release at this Time, on the basis of auditory hallucinations, 23 severe depression and anxiety, and fibromyalgia. She noted that 24 prognosis was poor, and that disability was expected to last longer 25 2 27 Dr. Rosenbaum s notes indicate that he advised Ms. Abed to make follow up appointments every two to four months. Tr. 284, 291. 28 Opinion and Order Page 14 26 1 than one year. Id. Under Comments, Dr. Khary wrote: 2 Ms. Abed has been evaluated by Dr. Howard Rosenbaum, psychiatrist, and received counseling by Cynthia Martin, MS at Lifeworks. ... Dr. Rosenbaum [said] that she has what appears to be psychotic symptoms and possible schizophrenia. 3 4 5 Id. 6 On July 18, 2006, Dr. Rosenbaum wrote that Ms. Abed s daughter 7 reported no significant change with the Cymbalta. Tr. 288. Ms. Abed 8 continued 9 activities, staring throughout most of the day. Id. Her daughter to sit around the house, without interest in any 10 believed 11 herself. Id. Dr. Rosenbaum told Ms. Abed and her daughter that ECT 12 was probably the treatment of choice. Dr. Rosenbaum set up a 13 consultation with Dr. Smith. Id. He increased the Cymbalta and 14 switched from Zyprexa to Geodon. Tr. 289. her mother was hallucinating because she talked to 15 On August 19, 2005, Dr. Luu saw Ms. Abed for dizziness. Tr. 16 320. Dr. Luu wrote that Ms. Abed refused to talk, and that her 17 daughter reported that the Risperdal had not made any difference. 18 Id. 19 On November 20, 2006, Dr. Rosenbaum wrote that Ms. Abed s 20 daughter reported that her mother was doing better. Tr. 286. She 21 had not been talking to herself, was more interactive with her 22 children, and was not secluding herself as much. However, Ms. 23 Abed s daughter said her mother never showed much interest in 24 anything. Id. 25 /// 26 /// 27 28 Opinion and Order Page 15 1 Dr. Rosenbaum thought Ms. Abed was showing gradual, slow 2 improvement on the combination of Zyprexa and Cymbalta. He decided 3 to gradually increase the Cymbalta dose, while continuing the 4 Zyprexa. Id. He again reviewed the benefits of ECT, but Ms. Abed s 5 daughter said she did not believe her mother would agree to the 6 treatment, and that her father was also against it. Tr. 287. 7 In a letter dated January 18, 2007, Dr. Rosenbaum stated that 8 he was treating Ms. Abed for major depressive disorder, severe, 9 with psychotic features, and for PTSD. Tr. 308. He said: 10 The severity of her depression with psychotic symptoms prevents her from learning English and/or US History and Civics. Symptoms of her disease include poor ability to focus, ... concentrate, and loss of reality testing. On a mental status examination she often will not respond to questions because of extreme withdrawal. Because of her poor reality testing she would not have an ability to understand the importance of learning English and American History in order to qualify for citizenship. In addition, even if she understood the importance, because of her inability to focus and concentrate and respond appropriately, I do not believe she would be able to learn. Another aspect of her depression is her lack of interest and ability to engage with another person appropriately in an interpersonal relationship. ... 11 12 13 14 15 16 17 Id. 18 On February 8, 2007, Dr. Rosenbaum wrote that when asked how 19 she was feeling, Ms. Abed responded, I am good. Tr. 284. Upon 20 more questions, she got slightly irritated, and said, Quit 21 asking questions, I am good. Id. Her daughter reported steady, but 22 slow improvement, with her mother being more engaged and less 23 irritable, and apparently not hallucinating. Dr. Rosenbaum 24 continued the current regimen of Cymbalta, 120 mg. and Zyprexa, 30 25 mg. 26 /// 27 28 Opinion and Order Page 16 1 Hearing Testimony 2 Ms. Abed testified at the hearing, on June 6, 2007, through an 3 interpreter. When the ALJ asked for Ms. Abed s full name, the 4 interpreter answered, I don t get a response. She is afraid to 5 answer. Tr. 385. When the ALJ cautioned Ms. Abed that if she did 6 not answer questions, she could not expect to obtain benefits, Ms. 7 Abed responded with her first name. Id. When the interpreter asked 8 her to say her whole name, she answered, Why are you bothering 9 me? and I want to go home. I don t want to sit here. Id. After 10 Ms. Abed s attorney asked her to answer the questions, she said she 11 was 40 years old and born in Iraq. Tr. 386. 12 Ms. Abed also testified that her husband did not work; that 13 she was unable to drive; that she did not speak English; and that 14 she used to teach students a long time ago. Tr. 389-90. However, 15 when asked when she last taught, she responded, As you wish, and 16 I m tired. I don t know, and I want to go. I want to leave. Tr. 17 389-90. She continued to repeat similar statements, tr. 391, as 18 well as asking the ALJ why she kept asking questions when I didn t 19 do anything to you. Tr. 389, 391, 392, 393. Her attorney put his 20 own observation on the record that during the period of time that 21 Ms. Abed has been in here, much of it has been spent using her 22 right hand in a circular motion across the top of the table. Tr. 23 391. Although some additional information was obtained, such as 24 testimony that sometimes she had pain in every part of her body, 25 Ms. Abed continued to repeat that she wanted to go home and stay 26 there, was tired and had a headache, had nothing to do with 27 28 Opinion and Order Page 17 1 anybody anymore, and did not want to answer questions. Tr. 392, 2 393. She insisted to the ALJ and her attorney, Why do you speak 3 with me? I haven t done anything to you, I have nothing to do 4 with you, and I am not going to talk to you. Tr. 392-97. At one 5 point she told the ALJ, I would like to stay at home and have 6 rest, and I don t want anything, tr. 394, and told her attorney, 7 You shut up, I go home. Tr. 392. 8 Ms. Abed s husband, Jawdat Mohammad, testified that their 9 children were 18 and 17, and that he and his wife had been married 10 21 years. Tr. 398-99. Ms. Abed had a college degree in sports and 11 Arabic language, both of which she taught in Iraq. Tr. 399. She 12 last taught in 1996 or 1997. Id. She has lived in the United States 13 since July 2004; her husband was with the United States military in 14 Iraq from 2003 to 2005. Tr. 400. During the time he was gone, she 15 was receiving welfare and food stamps, but was not receiving money 16 from him. Tr. 401. She was in charge of the household while he was 17 gone. Tr. 403. He is unable to work because of medical issues, 18 and has also applied for Social Security benefits. Tr. 402. The 19 family continues to get welfare and food stamps, as well as public 20 housing. Tr. 403. He testified that during an average day, his wife 21 does nothing : he or the children cook, wash dishes, and shop for 22 groceries. Tr. 405. Ms. Abed has no friends, has not traveled since 23 July 2004, does not read and does not have any hobbies. Tr. 406. 24 She sleeps too much. Id. Ms. Abed s husband thought her main 25 problem was three or four big shocks in her life, that she was 26 unable to deal with. These included her 17 year old brother s 27 28 Opinion and Order Page 18 1 abduction by the secret police, with his body being left a few days 2 later 3 witnessing the accidental death by fire of one of her students. Tr. 4 407-09. at their home; the imprisonment of her husband; and 5 The ALJ called a vocational expert (VE), Gail Young. Tr. 410. 6 The ALJ asked the VE to evaluate Ms. Abed s work history; the VE 7 characterized it as skilled light work. Tr. 411. The VE thought she 8 was hypothetically able to work as a teacher s aide. Tr. 411. 9 The ALJ asked the VE to consider a person of Ms. Abed s 10 vocational background, with no exertional limitations, and able to 11 do at least simple repetitive tasks involving occasional contact 12 with the public. Tr. 412. The VE opined that such a person could 13 not do Ms. Abed s previous work, but that she could do assembly 14 production and housekeeping/cleaning work. Tr. 412. The attorney 15 asked the VE if a person with the symptoms described by Dr. 16 Rosenbaum in his letter of January 18, 2007 would be able to 17 maintain competitive employment; the VE responded that she could 18 not. Tr. 413. 19 ALJ s Decision 20 The ALJ found that Ms. Abed had not engaged in substantial 21 gainful activity since July 29, 2004, and that her depressive 22 disorder and diabetes were severe impairments. Tr. 15. The ALJ 23 found that Ms. Abed did not have an impairment or combination of 24 impairments that met or medically equaled the impairments in 20 25 C.F.R. Part 404, Subpart P, Appendix 1 (the List of Impairments). 26 /// 27 28 Opinion and Order Page 19 1 The ALJ found the testimony of Jawdat Mohammed not fully 2 credible because he testified at the hearing that Ms. Abed needed 3 help with everything at home, while Ms. Abed had told Dr. Givi in 4 December 2004 that she was cooking, doing housework, walking to the 5 grocery store, and doing laundry, and because there was evidence in 6 the record that she had taken public transportation alone.3 The ALJ 7 also cited to the report of Dr. Givi, in which he noted forms in 8 the file and indications in her treating physician s notes that Ms. 9 Abed was able to care for her children, do household chores, shop 10 and take care of finances. Tr. 19. The ALJ also took note of Dr. 11 Givi s statement that Ms. Abed seemed to be exaggerating her 12 difficulties, perhaps for secondary gain, and of his concern about 13 whether she was putting forth her best efforts. Id. 14 The ALJ rejected Dr. Rosenbaum s opinion that Ms. Abed had a 15 depressive disorder with psychotic features and PTSD, and that she 16 would not be able to learn English or American history in order to 17 qualify for citizenship. The ALJ noted, The implication is that 18 she is disabled. Tr. 21. The ALJ rejected Dr. Rosenbaum s opinions 19 because he had said in February 2007 that Ms. Abed seemed to be 20 improving, and because Ms. Abed was going on errands with her 21 daughter. Tr. 21. 22 The ALJ found further that it did not appear Dr. Rosenbaum 23 even did mental status examinations of the claimant but has relied 24 mostly on subjective reports by the claimant and family members. 25 3 27 The ALJ cited tr. 135 as support for this finding, but the court has not found any reference on that page to Ms. Abed s taking public transportation alone. 28 Opinion and Order Page 20 26 1 Tr. 22. The ALJ found more objective and useful information from 2 Dr. 3 exaggeration by Ms. Abed and the possibility that secondary gain 4 was involved in her allegations. Id. Givi s evaluation and from Dr. Givi s comment about 5 The ALJ rejected Dr. Khary s opinion in July 2006 that Ms. 6 Abed was unable to work because Dr. Khary s treatment records were 7 vague and refer to normal mental status in January 2005, and 8 because Dr. Khary s disability opinion seems to be based on the 9 claimant s subjective claims or those of the claimant s family. 10 Tr. 21. The ALJ also found minimal objective findings by other 11 doctors who have seen the claimant, but the portions of the record 12 cited in support of these findings are documents of lab tests 13 ordered by Dr. Khary, tr. 309, 310, chart notes made by Dr. Khary 14 herself, and chart notes by Susan Payne, M.D., a surgeon who 15 performed 16 February 2005. Tr. 335. The ALJ also found Dr. Khary s notations of 17 healthy appearing, no distress inconsistent with Dr. Khary s 18 statement about disability. Tr. 21. 19 retrocele repair and perineoplasty on Ms. Abed in The ALJ found Ms. Abed not credible because a third party 20 report 21 describes the claimant s activities as being more extensive than 22 the claimant described at the same time. Tr. 21, citing tr. 77-83, 23 70-74. The ALJ did not give specific examples of discrepancies, but 24 concluded, This indicates that the claimant has not been honest 25 concerning her activities of daily living. Tr. 21. 26 /// made by her friend, 27 28 Opinion and Order Page 21 Michael Bishop, in August 2004 1 The ALJ found the testimony of Ms. Abed s husband not fully 2 credible because there was contrary evidence that, before and 3 since he has been back in the U.S., claimant has been more 4 functional than he has described. Tr. 19. The ALJ again cited Mr. 5 Bishop s report and reports reviewed by Dr. Givi in December 2004 6 that she was cooking, doing housework, walking to the grocery 7 store, and doing laundry. Tr. 19.4 8 The ALJ found that Ms. Abed was mildly restricted in 9 activities of daily living, based on Mr. Bishop s 2004 report that 10 she took care of her children, prepared meals, cleaned, took care 11 of one fish and one bird, did yard work and laundry, and paid 12 bills. Tr. 16. With respect to social functioning, the ALJ found 13 that Ms. Abed had moderate difficulties, in that she spent most of 14 her time at home and went out only for basic necessities, and then 15 not alone. Id. The ALJ found that Ms. Abed was mildly limited with 16 regard to concentration, persistence or pace, based on her ability 17 to work as a teacher in Iraq in 1997 or 1998, and on tests 18 administered 19 intelligence and remote memory functions. Id. The ALJ acknowledged 20 that her short term memory fell into the impaired range. Id. 21 /// by Dr. Givi revealing that she had average 22 23 4 27 Ms. Abed has not challenged the ALJ s finding that her husband s testimony in 2007 was not fully credible, nor the ALJ s failure to make any findings with respect to the many occasions on which Ms. Abed s daughter described her symptoms to doctors. The ALJ rejected the husband s testimony in its entirety, because it differed, in unspecified ways, from descriptions provided by Mr. Bishop and by Ms. Abed to Dr. Givi in 2004. 28 Opinion and Order Page 22 24 25 26 1 On the basis of these findings, the ALJ concluded that Ms. 2 Abed had the residual functional capacity (RFC) to perform a full 3 range of work at all exertional levels, with limitations of simple, 4 repetitive tasks involving occasional contact with the public. The 5 ALJ did not make a finding on whether Ms. Abed s inability to 6 speak, read or write English affected her RFC. 7 The ALJ concluded that Ms. Abed was not disabled, relying on 8 the VE s testimony in response to her hypothetical that Ms. Abed 9 was able to perform such jobs as assembly worker and housekeeper. 10 Tr. 23. 11 Standard 12 The court must affirm the Commissioner's decision if it is 13 based on proper legal standards and the findings are supported by 14 substantial evidence in the record. Meanel v. Apfel, 172 F.3d 1111, 15 1113 (9th Cir. 1999). Substantial evidence is such relevant evidence 16 as 17 conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 18 Andrews 19 determining whether the Commissioner's findings are supported by 20 substantial evidence, the court must review the administrative 21 record as a whole, weighing both the evidence that supports and the 22 evidence that detracts from the Commissioner's conclusion. Reddick 23 v. 24 Commissioner's decision must be upheld even if "the evidence is 25 susceptible to more than one rational interpretation." Andrews, 53 26 F.3d at 1039-40. a reasonable v. Chater, mind Shalala, 157 F.3d might 53 28 F.3d 715, 27 Opinion and Order Page 23 accept 1035, 720 (9th as adequate 1039 Cir. (9th to Cir. 1998). support 1995). However, a In the 1 The initial burden of proving disability rests on the 2 claimant. Meanel, 172 F.3d at 1113; Johnson v. Shalala, 60 F.3d 3 1428, 1432 (9th Cir. 1995). To meet this burden, the claimant must 4 demonstrate an "inability to engage in any substantial gainful 5 activity by reason of any medically determinable physical or mental 6 impairment which ... has lasted or can be expected to last for a 7 continuous period of not less than 12 months[.]" 42 U.S.C. § 8 423(d)(1)(A). 9 A physical or mental impairment is "an impairment that results 10 from anatomical, physiological, or psychological abnormalities 11 which 12 laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). This 13 means an impairment must be medically determinable before it is 14 considered disabling. 15 are The demonstrable Commissioner by has medically acceptable established a clinical five-step and sequential 16 process for determining whether a person is disabled. Bowen v. 17 Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. 18 In step one, the Commissioner determines whether the claimant 19 has engaged in any substantial gainful activity. 20 C.F.R. §§ 20 404.1520(b), 416.920(b). If not, the Commissioner goes to step two, 21 to 22 impairment or combination of impairments." Yuckert, 482 U.S. at 23 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). That determination is 24 governed by the severity regulation, which provides: 25 26 determine whether the has a "medically severe If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, 27 28 claimant Opinion and Order Page 24 1 therefore, not disabled. We will not consider your age, education, and work experience. 2 3 §§ 404.1520(c), 416.920(c). If the claimant does not have a severe 4 impairment or combination of impairments, the disability claim is 5 denied. If the impairment is severe, the evaluation proceeds to the 6 third step. Yuckert, 482 U.S. at 141. 7 In step three, the Commissioner determines whether the 8 impairment meets or equals "one of a number of listed impairments 9 that the [Commissioner] acknowledges are so severe as to preclude 10 substantial gainful activity." Yuckert, 482 U.S. at 140-41. If a 11 claimant's 12 impairments, he is considered disabled without consideration of her 13 age, 14 416.920(d). impairment education or meets work or equals experience. 20 one C.F.R. of s the listed 404.1520(d), 15 If the impairment is considered severe, but does not meet or 16 equal a listed impairment, the Commissioner considers, at step 17 four, whether the claimant can still perform "past relevant work." 18 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can do so, he 19 is not considered disabled. Yuckert, 482 U.S. at 141-42. If the 20 claimant shows an inability to perform his past work, the burden 21 shifts to the Commissioner to show, in step five, that the claimant 22 has the RFC to do other work in consideration of the claimant's 23 age, education and past work experience. Yuckert, 482 U.S. at 141- 24 42; 20 C.F.R. §§ 404.1520(f), 416.920(f). 25 /// 26 /// 27 28 Opinion and Order Page 25 1 Discussion 2 Ms. Abed asserts that the Commissioner erred in 1) improperly 3 rejecting the opinions of treating physicians Khary and Rosenbaum; 4 2) making legally inadequate severity findings at step two of the 5 sequential 6 impairments except depression and diabetes; 3) failing to evaluate 7 all 8 hypothetical to the VE, thereby rendering the VE s testimony 9 insufficient to support a finding of non-disability. of Ms. evaluation Abed s process impairments; by and failing 4) to posing consider an any incomplete 10 Rejection of the opinions of Doctors Khary and Rosenbaum 11 Title II s implementing regulations distinguish among the 12 opinions of three types of physicians: 1) those who treat the 13 claimant; 2) those who examine, but do not treat; and 3) those who 14 neither examine nor treat. Holohan v. Massanari, 246 F.3d 1195, 15 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 1995); 20 C.F.R. § 404.1527(d). Generally, a treating physician s 17 opinion carries more weight than an examining physician s and an 18 examining physician s opinion carries more weight than a reviewing 19 physician s. Holohan, 246 F.3d at 1202; Lester, 81 F.3d at 830; 20 20 C.F.R. § 404.1527(d). In addition, the regulations give more weight 21 to opinions that are explained than to those that are not, Holohan 22 246 F.3d at 1202, 20 C.F.R. § 404.1527(d), and to the opinions of 23 specialists concerning matters relating to their specialty over 24 those of nonspecialists. Id.; 20 C.F.R. § 404.1527(d)(5). 25 Under the regulations, if a treating physician s medical 26 opinion is supported by medically acceptable diagnostic techniques 27 28 Opinion and Order Page 26 1 and is not inconsistent with other substantial evidence in the 2 record, the treating physician s opinion is given controlling 3 weight. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(d)(2). An 4 ALJ may reject the uncontradicted medical opinion of a treating 5 physician only for clear and convincing reasons supported by 6 substantial evidence in the record. Id. at 1202, citing Reddick v. 7 Chater, 8 physician s medical opinion is inconsistent with other substantial 9 evidence in the record, treating source medical opinions are still 10 entitled to deference and must be weighted using all the factors 11 provided in 20 C.F.R. § 404.1527. Id. An ALJ may rely on the 12 medical opinion of a non-treating doctor instead of the contrary 13 opinion of a treating doctor only if she or he provides specific 14 and legitimate reasons supported by substantial evidence in the 15 record. Id. Similarly, an ALJ may reject a treating physician s 16 uncontradicted opinion on the ultimate issue of disability only 17 with 18 evidence in the record. Id. If the treating physician s opinion on 19 the issue of disability is controverted, the ALJ must still provide 20 specific and legitimate reasons in order to reject the treating 21 physician s opinion. Id. 157 clear F.3d and 715, 725 convincing (9th Cir. reasons 1998). If supported the by treating substantial 22 If a treating physician s opinion is not given controlling 23 weight because it is not well supported or because it is 24 inconsistent with other substantial evidence in the record, the ALJ 25 is to consider specified factors in determining the weight it will 26 be given. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). These 27 28 Opinion and Order Page 27 1 factors include the length of the treatment relationship and the 2 frequency of examination by the treating physician and the nature 3 and extent of the treatment relationship between the patient and 4 the treating physician. Id., citing 20 C.F.R. § 404.1527(d)(2)(i)- 5 (ii). 6 opinion, not limited to the opinion of the treating physician, 7 include the amount of relevant evidence that supports the opinion 8 and the quality of the explanation provided; the consistency of the 9 medical opinion with the record as a whole; and the specialty of 10 the physician providing the opinion. Orn at 631, citing 20 C.F.R. 11 § 404.1527(d)(3)-(6). Additional factors relevant to evaluating any medical 12 A finding that a treating medical source medical opinion is 13 not well-supported by medically acceptable clinical and laboratory 14 diagnostic techniques or is inconsistent with other substantial 15 evidence in the case record means only that the opinion is not 16 entitled to controlling weight, not that the opinion should be 17 rejected. Orn, 495 F.3d at 631-32. In many cases, a treating 18 source s medical opinion will be entitled to the greatest weight 19 and should be adopted, even if it does not meet the test for 20 controlling weight. Id. 21 1. 22 Dr. Rosenbaum is a treating psychiatrist. His diagnosis of 23 depressive disorder with psychotic features is consistent with that 24 of Ms. Martin and Dr. Ihli,5 and with Dr. Luu s diagnosis of Dr. Rosenbaum 25 5 27 In Benton ex rel. Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003) the court held that a supervising psychiatrist could be considered a treating source where the psychiatrist oversaw a 28 Opinion and Order Page 28 26 1 depression with psychosis; Ms. Martin, Dr. Ihli and Dr. Luu are 2 all, like Dr. Rosenbaum, treating sources. The only contradictory 3 opinion is that of Dr. Givi, who saw Ms. Abed before the others, 4 and who examined her on one occasion, December 3, 2004.6 Even Dr. 5 Givi found Ms. Abed to have Major Depressive Disorder, Recurrent, 6 Mild. The ALJ rejected all of the treating source opinions in favor 7 of the opinions of Dr. Givi. 8 The ALJ s stated reasons for rejecting the opinions of Dr. 9 Rosenbaum were that Dr. Rosenbaum referred to improvement in Ms. 10 Abed s condition on February 8, 2007, tr. 284, and because it did 11 not appear that Dr. Rosenbaum did mental status examinations, 12 relying instead on subjective reports by the claimant and family 13 members. These reasons are not sufficient to support rejection of 14 Dr. Rosenbaum s opinions. 15 The chart note referring to improvement in February 2007, in 16 its entirety, states: Daughter notes steady but slow improvement. 17 She describes her mother being more engaged, talking more. She has 18 not been hallucinating. She seems less irritable. ... She does note 19 that her mother has been more comfortable when they go out to run 20 errands. Is able to tolerate several hours in the community. Tr. 21 284. The sentence does not say that Dr. Rosenbaum found Ms. Abed 22 improved on that occasion, but that her daughter had observed some 23 24 25 team of therapists. 6 27 The records review done by Robert Henry, Ph.D., was done in December 2004, before Dr. Rosenbaum began treatment; therefore Dr. Henry s opinions cannot be considered to contradict those of Dr. Rosenbaum. 28 Opinion and Order Page 29 26 1 recent improvement. The same chart note states that Dr. Rosenbaum 2 has decided to continue this current combination given the gradual 3 improvement, and [p]urpose of medication is to treat ongoing 4 symptoms of depression and PTSD. Id. A slow, gradual improvement 5 from the situation Dr. Rosenbaum found Ms. Abed in from May 2005 to 6 February 2007 does not support the rejection of Dr. Rosenbaum s or 7 any other treatment provider s opinion. 8 A physician s statements must be read in context of the 9 overall diagnostic picture he draws. Holohan, 246 F.3d at 1205. Dr. 10 Rosenbaum s decision to continue Ms. Abed on the same medication 11 regimen in order to treat her ongoing symptoms of depression and 12 PTSD do not indicate that he found her improved, no longer in need 13 of treatment, nor able to work. The ALJ s citation to an isolated 14 reference to improvement, in the context of the entire record, does 15 not constitute a specific and legitimate reason for rejecting Dr. 16 Rosenbaum s opinions. 17 The ALJ s finding that Dr. Rosenbaum did not do mental status 18 examinations is erroneous. The chart notes show otherwise. See, 19 e.g., tr. 294 (paragraph captioned Mental Status Exam, with 20 notation that patient was alert, would not answer questions, sat 21 quietly in chair, did not respond to any questions, appeared to be 22 listening, mumbled a few unintelligible words); tr. 292 ( The 23 patient continues to be psychotic and withdrawn. ... Seems slightly 24 more verbal today in session. ); tr. 290 ( depressed, withdrawn, 25 apparent psychotic features of auditory hallucinations ); tr. 284 26 ( When asked how she is feeling, she replies, I am good. Denies 27 28 Opinion and Order Page 30 1 any 2 questions, 3 notations of Ms. Abed s mental status. problem with she sleep gets and appetite. slightly As I continued irritated... )7 These to ask are all 4 Where a disability claimant's condition is deteriorating, the 5 most recent medical report is most probative. Young v. Heckler, 803 6 F.2d 7 psychological report in the record. 8 9 10 963 I (9th conclude Cir. that 1986). the Dr. ALJ s Givi s report rejection of is Dr. the oldest Rosenbaum s opinions in favor of those of Dr. Givi was legally erroneous and unsupported by substantial evidence in the record as a whole. 11 2. 12 The ALJ rejected Dr. Khary s opinion in July 2006 that Ms. 13 Abed was unable to work. The ALJ s stated reasons were that Dr. 14 Khary s treatment records were vague, referred to normal mental 15 status in January 2005, were based on the claims of Ms. Abed or her 16 family, and because Dr. Khary s notations of healthy appearing, no Dr. Khary 17 18 7 27 The record contains numerous similar mental status assessments from Ms. Abed s other physicians and from psychologists. Dr. Luu wrote on May 27, 2005 that Ms. Abed was depressed, made poor eye contact, and was quiet. Dr. Khary observed on December 6, 2005 that Ms. Abed was withdrawn, did not make eye contact, or speak to Dr. Khary when asked questions, and showed quite a marked change from last time I saw her last year when she was conversing and even laughing, tr. 316; very withdrawn on April 19, 2006, tr. 314; withdrawn on July 12, 2006, tr. 311. Cynthia Martin s observations were that Ms. Abed refused to speak on July 6, 2005, tr. 297; thought the therapist was spying on her, continued to speak to the voices and at times interrupted Shahed to warn her not to speak to the therapist as she was spying, on June 2, 2005, tr. 299; talked to something only seen by her, continued to inspect the room for outlets that might enable them to listen to her, on May 26, 2005, tr. 301; and refused to speak on May 19, 2005, tr. 302. 28 Opinion and Order Page 31 19 20 21 22 23 24 25 26 1 distress were inconsistent with disability. 2 The ALJ did not specify which parts of Dr. Khary s treatment 3 records were vague; this finding therefore does not meet the 4 requirement that reasons given for rejecting the opinions of 5 treating physicians be specific. Dr. Khary s reference to normal 6 mental status does not, in context, suggest that Dr. Khary found 7 nothing wrong with Ms. Abed. See, e.g., tr. 311 ( [p]atient does 8 not 9 withdrawn, not very talkative ); 315 ( sits in a chair, says a few 10 words to daughter at times, not very responsive to questions ); tr. 11 317 ( patient withdrawn in office, does not make eye contact, does 12 not speak to me when I ask her questions ). talk a lot, just a few words, withdrawn ); 314 ( very 13 The ALJ s rejection of Dr. Khary s opinions because they were 14 based on the reports of family members is erroneous. Lay testimony 15 about a claimant's symptoms is competent evidence which the ALJ 16 must take into account, Dodrill v. Shalala, 12 F.3d 915, 919 (9th 17 Cir. 1993). In fact, an ALJ s failure to comment on competent lay 18 testimony requires reversal unless the court can confidently 19 conclude 20 testimony, could have reached a different disability determination. 21 Stout v. Commissioner, 454 F.3d 1050, 1056 (9th Cir. 2006) The ALJ 22 gave 23 subjective reports of Ms. Abed s daughter and husband about Ms. 24 Abed s history and her symptoms. It is difficult to imagine what 25 those reasons could be in view of Ms. Abed s inability to speak 26 English and her refusals to answer questions. The ALJ s reasons for no that no reasons reasonable why Dr. 27 28 Opinion and Order Page 32 ALJ, Khary when should fully have crediting disregarded the the 1 rejecting the opinions of Dr. Khary are legally erroneous and 2 unsupported by substantial evidence in the record. 3 Absence of severity findings 4 The medical evidence contains diagnoses of psychosis, PTSD, 5 hypothyroidism, anemia, and diabetes.8 The ALJ made no findings at 6 step two of the sequential analysis about the severity of these 7 medically determinable impairments. An impairment or combination of 8 impairments 9 establishes a slight abnormality that has no more than a minimal 10 effect on individual's ability to work, and the adjudicator must 11 consider the combined effect of all impairments. Smolen v. Chater, 12 80 F.3d 1273, 1290 (9th Cir. 1996). Step two is a de minimis 13 screening device used to dispose of groundless claims, id., and an 14 ALJ may find that a claimant lacks a medically severe impairment or 15 combination of impairments only when her conclusion is clearly 16 established by medical evidence. Webb v. Barnhart, 433 F.3d 683, 17 687 (9th Cir. 2005). The ALJ s failure to make any severity findings 18 at all about the effect of these impairments, either singly or in 19 combination with the impairments found to be severe, was legal 20 error. 21 /// 22 /// can be found not severe only if the evidence 23 24 8 27 Although Ms. Abed challenges the ALJ s failure to make severity findings on her fibromyalgia and schizophrenia as well, I find no evidence in the record that fibromyalgia and schizophrenia were actually diagnosed, as opposed to being considered. I therefore find no error in the ALJ s finding that fibromyalgia was not a medically determinable impairment. 28 Opinion and Order Page 33 25 26 1 Hypothetical to VE 2 The ALJ must propose a hypothetical to the VE that is based on 3 medical assumptions supported by substantial evidence in the record 4 that reflects each of the claimant's limitations. Osenbrock v. 5 Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001). An ALJ is free to accept 6 or reject restrictions in a hypothetical question that are not 7 supported by substantial evidence. Id. at 1165. If the claimant 8 fails 9 limitations, the ALJ need not include those alleged impairments in 10 11 to present evidence that she suffers from certain the hypothetical question to the VE. Id. at 1164. If the hypothetical posed to the VE by the ALJ does not 12 reflect 13 testimony has no evidentiary value to support a finding that the 14 claimant can perform jobs in national economy. Matthews v.Shalala, 15 10 F.3d 678 (9th Cir. 1993). Thus, the VE's testimony is competent 16 only when the hypothetical accurately portrays the claimant's 17 individual physical and mental impairments. Irwin v. Shalala, 840 18 F. Supp. 751 (D. Or. 1993). 19 all of disability claimant's limitations, the VE s The ALJ s hypothetical to the VE was limited to considering a 20 person 21 involving occasional contact with the public. Not included in the 22 hypothetical to the VE were the limitations described by Dr. 23 Rosenbaum: 24 hallucinations, poor ability to focus or concentrate, loss of 25 reality testing, extreme withdrawal, lack of interest and ability 26 to engage with another in an interpersonal situation, and inability with the RFC severe to at depression, 27 28 do Opinion and Order Page 34 least simple psychotic repetitive symptoms tasks such as 1 to learn. Nor did the ALJ consider the effect of pain on Ms. Abed s 2 RFC, although Dr. Khary recorded on several occasions that she 3 thought Ms. Abed s pain was a symptom of her depression. When Ms. 4 Abed s attorney questioned the VE about the limitations identified 5 by Dr. Rosenbaum, she responded that such a person would not be 6 capable of maintaining competitive employment. 7 The ALJ s rejection of Dr. Rosenbaum s opinions was legally 8 erroneous and unsupported by substantial evidence in the record. 9 Ms. Abed has medically determinable limitations for which the ALJ 10 failed 11 determinable limitations were not included in the hypothetical to 12 the VE, making the VE s testimony insufficient to support the ALJ s 13 finding of non-disability. Indeed, the VE testified that Ms. Abed 14 could not maintain employment with the symptoms Dr. Rosenbaum 15 described. to make any severity 16 finding. Some of her medically Remand 17 Sentence four of 42 U.S.C. § 405(g) gives the court discretion 18 to decide whether to remand for further proceedings or for an award 19 of benefits. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). 20 In Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996), the 21 court held that improperly rejected evidence should be credited and 22 an immediate award of benefits be made when: 1) the ALJ has failed 23 to provide legally sufficient reasons for rejecting such evidence, 24 2) there are no outstanding issues that must be resolved before a 25 determination of disability can be made, and 3) it is clear from 26 the record that the ALJ would be required to find the claimant 27 28 Opinion and Order Page 35 1 disabled were such evidence credited. 2 I conclude that the Smolen test is satisfied here, that Dr. 3 Rosenbaum s testimony should be credited, and benefits should be 4 awarded. 5 6 7 Conclusion The Commissioner s decision is REVERSED and REMANDED for award of benefits. 8 IT IS SO ORDERED. 9 Dated this 24th day of August, 2010. 10 11 /s/Dennis James Hubel 12 Dennis James Hubel United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPINION AND ORDER Page 36
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