Sarah Dale v. Carolyn Colvin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARAH E. DALE, No. 14-35583
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-01187-HZ
CAROLYN W. COLVIN,
Commissioner of Social Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted December 31, 2015*
San Francisco, California
Filed May 19, 2016
Before: Edward Leavy, Susan P. Graber,
and John B. Owens, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Leavy
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 DALE V. COLVIN
SUMMARY**
Social Security
The panel reversed the district court’s judgment affirming
the Commissioner of Social Security’s denial of a claimant’s
application for supplemental security income under Title XVI
of the Social Security Act; held that the administrative law
judge (“ALJ”) erred in according “limited weight” to the
opinion of a nurse practitioner; and remanded for further
proceedings.
Nurse practitioners are considered “other sources.”
20 C.F.R. § 404.1513(a) & (d)(1).
The panel held that an ALJ errs when he discounts an
other source’s entire testimony because of inconsistency with
evidence in the record, where the ALJ had divided the
testimony into distinct parts and determined that only one part
of the testimony was inconsistent. The panel held that the
ALJ’s determination in this case – that the nurse
practitioner’s opinion regarding claimant’s “exertional and
postural” limitations was inconsistent with other evidence
in the record – was an insufficient reason to reject her
testimony regarding claimant’s manipulative and mental
limitations. The panel held that the error was not harmless
because the vocational expert opined that a person with the
mental limitations identified by the nurse practitioner could
not work.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DALE V. COLVIN 3
The panel held that further administrative proceedings
were required to reconcile all the record evidence and to
consider additional issues, such as the onset date of
claimant’s disability, if any.
Judge Leavy dissented, and he would hold that the ALJ
gave specific, supported, and germane reasons for
discounting the nurse practitioner’s opinion, and the
Commissioner’s decision denying benefits should be
affirmed.
COUNSEL
Merrill Schneider, Schneider, Kerr & Gibney Law Offices,
Portland, Oregon, for Plaintiff-Appellant.
Lisa Goldoftas, Assistant Regional Counsel, David Morado,
Regional Chief Counsel, Social Security Administration,
Office of the General Counsel; Ronald K. Silver, Assistant
United States Attorney, and S. Amanda Marshall, United
States Attorney, Seattle, Washington, for Defendant-
Appellee.
4 DALE V. COLVIN
OPINION
GRABER, Circuit Judge:
Claimant Sarah E. Dale appeals the district court’s
judgment affirming the Commissioner of Social Security’s
denial of her application for supplemental security income
under Title XVI of the Social Security Act. An
administrative law judge (“ALJ”) found that, despite having
severe impairments, Claimant is not disabled. The sole issue
on appeal is whether the ALJ erred in according “limited
weight” to the opinion of a nurse practitioner. We hold that
the ALJ did err and, therefore, reverse and remand for further
proceedings.
FACTUAL AND PROCEDURAL HISTORY
Claimant was born in 1985. She had a difficult
childhood, experiencing both sexual and physical abuse;
frequent moves; exposure to violence and drugs; and the
death of her mother when she was 12 years old. At age 17,
she earned a GED, which is the equivalent of a high school
diploma. She also completed a residential drug treatment
program to deal with methamphetamine use. Claimant has
two young children and a minimal work history.
In late 2009, Claimant filed an application for
supplemental security income, alleging that she had been
disabled since January 1, 2007. Claimant alleged that her
disability resulted from post-traumatic stress disorder
(“PTSD”), anxiety, panic disorder, degenerative disc disease,
high blood pressure, and dyslexia. The claim was denied
initially and on reconsideration.
DALE V. COLVIN 5
At Claimant’s request, a hearing was held on her claim.
The ALJ received testimony from Claimant, a lay witness,
and a vocational expert. The ALJ also reviewed the medical
records. Applying the familiar five-step sequential
evaluation, 20 C.F.R. § 416.920, the ALJ denied benefits,
concluding:
• Step One: Claimant had not engaged in substantial
gainful activity since her application date.
• Step Two: Claimant had severe impairments,
specifically, mild degenerative disc disease of the lumbar
spine; minimal disc bulging in the cervical spine; anxiety; and
panic disorder.
• Step Three: Claimant’s impairments did not meet or
equal a listed impairment.
• Step Four: Claimant had no past relevant work.
• Step Five: Claimant’s residual functional capacity
(“RFC”) allowed her to perform light work, except that she
could occasionally climb ladders, ropes, and scaffolds and
could frequently climb ramps and stairs. Claimant could
frequently balance, stoop, kneel, crouch, and crawl. She
could reach overhead with her left arm, occasionally. But she
was limited to performing simple, routine tasks that involved
no more than occasional interaction with coworkers and the
public. The ALJ next found that there were jobs that existed
in significant numbers in the national economy that Claimant
could perform, including assembler, cleaner/polisher, and
night cleaner or housekeeper. Thus, Claimant was not
disabled.
6 DALE V. COLVIN
The Appeals Council denied Claimant’s request for
review, making the ALJ’s decision the Commissioner’s final
decision. The district court affirmed the Commissioner’s
decision and dismissed the case with prejudice. This timely
appeal followed.
STANDARD OF REVIEW
We review the district court’s decision de novo.
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009). We must affirm the Commissioner’s final
decision if it is supported by substantial evidence and is free
of legal error. 42 U.S.C. § 405(g).
DISCUSSION
The sole issue on appeal is whether, at Step Five, the ALJ
erred by improperly evaluating the opinion of Laurie Beeson,
a family nurse practitioner. Nurse practitioners are
considered “other sources.” 20 C.F.R. § 404.1513(a) &
(d)(1); Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015)
(per curiam). “The ALJ may discount testimony from these
‘other sources’ if the ALJ ‘gives reasons germane to each
witness for doing so.’” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012) (quoting Turner v. Comm’r of Soc. Sec.,
613 F.3d 1217, 1224 (9th Cir. 2010)).
Beeson completed a medical questionnaire in 2012.
Beeson provided opinions concerning both Claimant’s
physical limitations and her mental limitations. Beeson had
been treating Claimant for about three years. She opined that
Claimant’s medical conditions included chronic back pain,
generalized anxiety disorder, panic disorder (with
agoraphobia and panic attacks), PTSD, obesity, incontinence,
DALE V. COLVIN 7
hypertension, left shoulder pain, and chronic leg pain.
Claimant’s main problems consisted of panic disorder,
agoraphobia, and lower back pain with sciatica in the left leg.
With respect to Claimant’s physical functional capacity,
Beeson stated that Claimant could lift or carry less than ten
pounds frequently and occasionally, stand or walk fifteen
minutes at a time for a total of two hours per day, and sit two
hours at a time for a total of eight hours per day. Claimant
was limited in both upper and lower extremities; Claimant’s
ability to push and pull was limited, she could never climb,
balance, crouch, or crawl, and she could occasionally stoop,
bend, kneel, and engage in gross manipulation.
With respect to mental impairments, Beeson opined that
Claimant was moderately limited in concentration,
persistence, and pace. Because of her fear of leaving her
house, Claimant’s social functioning was markedly limited
due to agoraphobia. Claimant’s ability to handle the stress of
performing even simple, routine work was limited by what
Beeson considered a “severe anxiety disorder.” Claimant’s
attention and concentration would likely be impaired such
that she would be unable to perform even simple work tasks
for 20 percent of the workweek. Because of Claimant’s
mental impairments, Beeson expected her to miss 16 hours or
more per month from even a simple and routine sedentary
job. The vocational expert testified that a person with those
mental limitations would not be able to perform any jobs in
the economy.
The record also contained opinions from a non-examining
physician, a non-examining psychologist, and an examining
neurologist. The ALJ gave “great weight” to the
psychologist’s opinion but only “limited weight” to Beeson’s
8 DALE V. COLVIN
opinion. The ALJ’s reason for discounting Beeson’s opinion
reads, in full:
Overall, the longitudinal record, including Ms.
Beeson’s treatment notes[, does] not
objectively support the degree of exertional
and postural limitation that she proposes.
Nevertheless, the residual functional capacity
found in this decision includes manipulative
and mental limitations that are generally
consistent with Ms. Beeson’s assessment.
That is, the ALJ found a single inconsistency: Beeson’s
evaluation of Claimant’s exertional and postural limitations
was not supported by her own treatment notes. By contrast,
the ALJ gave no reason—germane or otherwise—to discount
Beeson’s assessment of Claimant’s manipulative and mental
limitations, which differed from the assessment given by the
psychologist to whose opinion the ALJ deferred. And, of
course, we are limited to considering the reasons the agency
gave for its decision. Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3d 1219, 1225–26 (9th Cir. 2009).
Typically, of course, the reason for discounting an “other”
source applies to the entire testimony of the witness. For
example, in Turner, the source did not give an opinion about
the claimant’s condition until two years after the date last
insured—making the opinion only marginally relevant—and
the source’s entire testimony differed from the opinion of all
the doctors. 613 F.3d at 1224. In Molina, the source’s
opinion on the sole issue in dispute conflicted with her own
earlier assessment of the claimant and with the opinion of the
relevant medical specialist. 674 F.3d at 1111–12. Other
examples readily come to mind. For example, an ALJ may
DALE V. COLVIN 9
discount a witness’ testimony because of bias. See Valentine,
574 F.3d at 694 (explaining that claims of bias “in the
abstract” are inadequate, but evidence that a witness
exaggerated a claimant’s symptoms for the witness’ benefit
could support a finding of bias). Reasons such as these apply
to a witness’ entire testimony. Often, too, as in Molina, the
other source gives an opinion about only one thing, so that a
germane reason necessarily applies to the source’s whole
opinion.
Here, however, the situation is different. The ALJ
himself divided Beeson’s testimony into two parts:
(1) “exertional and postural” limitations and
(2) “manipulative and mental” limitations.1 As to the former,
the ALJ permissibly discounted Beeson’s testimony on the
ground that her treatment notes did not objectively support
the degree of limitation proposed. As to the latter, the ALJ
stated his intention to devise an RFC finding that was
“generally consistent with Ms. Beeson’s assessment”—that
is, to credit, or at least not contradict, Beeson’s opinion of
Claimant’s “manipulative and mental” limitations.2 But in
fact the RFC differs markedly from Beeson’s view. For
1
The dissent contends that the ALJ’s division of Beeson’s testimony
“originated in the format supplied by Dale’s attorney.” Dissent at 15.
Whether the attorney or the ALJ was first to separate physical and mental
limitations is immaterial. What matters is that the ALJ independently
adopted the two-part structure and clearly stated that, although he rejected
Beeson’s assessment of the exertional and postural limitations, the
manipulative and mental limitations assessment was “generally
consistent” with the RFC. As explained above, however, the RFC was not
consistent with either part of Beeson’s testimony.
2
Beeson’s treatment notes with respect to Claimant’s manipulative and
mental impairments, unlike her treatment notes with respect to exertional
and postural limitations, appear to be consistent with her assessment.
10 DALE V. COLVIN
example, the ALJ found that Claimant could only
occasionally reach overhead, whereas Beeson found that she
could frequently reach overhead. Beeson limited Claimant to
only occasional handling with both upper extremities, but the
RFC did not include limitations as to her handling
capabilities. Lastly, the RFC failed to incorporate mental
limitations consistent with Beeson’s opinion, such as her
findings that Claimant would be unable to perform simple
work tasks for 20 percent of the workweek and would be
expected to miss at least two days of work per month due to
her anxiety and PTSD.
We have not addressed in our past cases the question
whether an ALJ may discount the entire medical opinion of
an other source when the ALJ has divided the opinion into
distinct parts and only one of those parts is inconsistent with
objective evidence in the record. But we have upheld an
ALJ’s decision to reject only the part of a lay witness’
testimony that was inconsistent with objective evidence in the
record. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1218
(9th Cir. 2005). We now hold that an ALJ errs when he
discounts an other source’s entire testimony because of
inconsistency with evidence in the record, when the ALJ has
divided the testimony into distinct parts and determined that
only one part of the testimony is inconsistent.3 Thus, the
3
We need not decide whether an ALJ who has not divided an other
source’s testimony into distinct parts may discount that witness’ entire
opinion when only some of the opinion is inconsistent with evidence in
the record. We note, however, that at least one district court within our
circuit has concluded that the ALJ may not dismiss an other source’s
entire opinion in such circumstances. See McCann v. Colvin, 111 F. Supp.
3d 1166, 1174 (W.D. Wash. 2015) (citing Bayliss and holding that, when
an ALJ discounts the opinion of an other source because it is “inconsistent
with the objective evidence in the record, he must discount only those
DALE V. COLVIN 11
ALJ’s determination in this case that Beeson’s opinion
regarding Claimant’s “exertional and postural” limitations
was inconsistent with other evidence in the record was an
insufficient reason to reject her testimony regarding
Claimant’s manipulative and mental limitations.4
That error was not harmless, Molina, 674 F.3d at 1115,
because the vocational expert opined that a person with the
mental limitations identified by Beeson could not work. But
further proceedings are required to reconcile all the record
evidence and to consider additional issues, such as the onset
date of Claimant’s disability, if any. Accordingly, we reverse
and remand for further administrative proceedings.
REVERSED and REMANDED.
portions of the opinion that are actually inconsistent, not those parts which
are uncontradicted”).
4
The dissent asserts that the ALJ permissibly rejected Beeson’s opinion
regarding the manipulative and mental limitations because the opinion was
manipulated by Dale’s lawyer or was “pure conjecture and relie[d] only
on Dale’s self-reported symptoms.” Dissent at 15. But the ALJ did not
state any such reasoning in his decision—much to the contrary, he
suggested that he was accepting Beeson’s recommendations regarding the
manipulative and mental limitations. Therefore, we may not consider on
appeal the reliability of Beeson’s opinion regarding the manipulative and
mental limitations. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)
(“We review only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he did
not rely.”).
12 DALE V. COLVIN
LEAVY, Circuit Judge, dissenting.
The ALJ, applying the standard legal framework,
determined that Dale was not “disabled” as defined in the
Social Security Act. The Act defines “disability” as the
“inability 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.” 42 U.S.C. § 423(d)(1)(A)
(emphasis added); see also 42 U.S.C. § 1382c(a)(3)(A). A
“physical or mental impairment” is one that “results from
anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3),
1382c(a)(3)(D) (emphasis added). See Ukolov v. Barnhart,
420 F.3d 1002, 1004–05 (9th Cir. 2005) (quoting same).
Nurse practitioner Laurie Beeson was one of several
employees of the Multnomah County Health Department who
treated Dale’s impairments. The ALJ stated in his findings of
fact:
Treatment notes from Multnomah County
Health Department show the claimant
carrying diagnoses for various mental
impairments, including panic disorder,
generalized anxiety, depressive disorder, and
posttraumatic stress disorder. (Exhibit 2F).
These assessments were made by non-
physician treatment providers and do not
DALE V. COLVIN 13
include any objective testing.”1 (emphasis
added).
In evaluating the severity of mental impairments, the ALJ
is required to “specify the symptoms, signs, and laboratory
findings that substantiate the presence of the impairment(s)
and document [the findings].” 20 C.F.R. §§ 404.1520a(b)(1),
416.920a(b)(1) (emphasis added). The ALJ noted that Dale
received mental health treatment from Western Psychological
& Counseling Services with a diagnosis summary by a
psychologist who listed the diagnoses of generalized anxiety
disorder and panic disorder with agoraphobia.
As a general matter, a nurse practitioner is an “other
source” for the purposes of medical testimony, see 20 C.F.R.
§ 404.1513(a) & (d), and, as such, the ALJ is entitled to give
less weight to an “other source” medical opinion by providing
“reasons germane to each witness for doing so.” Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)
(internal quotations omitted). The “reasons germane to the
witness” standard originated in Dodrill v. Shalala, 12 F.3d
915, 919 (9th Cir. 1993), and is applied to review “other
source” as well as lay evidence. See, e.g., Britton v. Colvin,
787 F.3d 1011, 1013 (9th Cir. 2015) (nurse practitioner);
Bayliss 427 F.3d at 1218 (lay witness). The ALJ stated that
Beeson “normally would not be an acceptable source to
proffer a medical opinion.” The ALJ nevertheless considered
Beeson’s opinion because the ALJ stated “[Beeson] has a
treating relationship with the claimant.”
1
Beeson’s treatment notes dated in April 2011 stated that Beeson had
last seen Dale two months earlier. Dale told Beeson that she made the
current appointment because “she is applying for disability and [was]
advised by her lawyer she is not coming in frequent [sic] enough.”
14 DALE V. COLVIN
Beeson’s opinion consisted of a check-the-box
questionnaire created and supplied by Dale’s attorney. The
5-page questionnaire assessed Dale’s residual functional
capacity and covered physical limitations followed by mental
limitations. Beeson checked the various boxes for most of
her answers and gave several brief explanations for other
answers. Beeson checked a box indicating that Dale’s
attention and concentration would be impaired to such a
degree that she could not be expected to perform even simple
work tasks for 20 percent of the work week. Beeson also
checked a box indicating that she expected Dale to miss 16
hours or more per month from even a simple and routine
sedentary job because of Dale’s anxiety and posttraumatic
stress disorder. Beeson cited no supporting medical evidence.
When asked to state “findings that support your opinion” as
to Dale’s anxiety disorders, Beeson left the answer blank,
which was consistent with the ALJ’s finding that the
Multnomah County Health Department did not perform
objective testing of Dale’s mental impairments.
Dale contends “The ALJ’s failure to expressly reject or
account for Nurse Beeson’s findings that Ms. Dale could only
perform occasional handling, would be off task for 20 percent
of the time, and would miss more than two days of work per
month (‘manipulative and mental limitations’) is the
dispositive issue and constitutes reversible error.” (emphasis
added).
The ALJ committed no legal error by discounting
Beeson’s opinion because the ALJ determined that Beeson’s
treatment notes did not support her proposed degree of
exertional and postural limitations, and the mental
assessments from non-physician treatment providers
(including Beeson’s opinion as to Dale’s mental impairments)
DALE V. COLVIN 15
were unsupported by clinical evidence. See Molina v. Astrue,
674 F.3d 1104, 1111–12 (9th Cir. 2012) (ALJ permissibly
discounted the nurse practitioner’s check-off report that failed
to provide supporting reasoning or clinical findings); Bayliss
v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ
properly rejected a doctor’s opinion as to the claimant’s
mental impairment because the opinion was not supported by
clinical evidence); Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001) (ALJ need not accept a medical opinion
if it is inadequately supported by clinical findings).
Accordingly, the ALJ properly accounted for and discounted
Beeson’s entire opinion.
The “majority holds that the ALJ erred in discounting
Beeson’s entire opinion when the ALJ “has divided the
opinion into distinct parts and only one of those parts is
inconsistent with other objective evidence in the record.” I
disagree. The division of Beeson’s opinion in this case
originated in the format supplied by Dale’s attorney, which
tracks the categories set forth in the regulations for residual
functional capacity. Beeson’s opinion as to Dale’s extertional
and postural limitations was inconsistent with her own
treatment notes. Beeson’s opinion as to Dale’s manipulative
and mental limitations, specifically regarding the
“dispositive” issue of Dale’s work absenteeism, is pure
conjecture and relies only on Dale’s self-reported symptoms.
See Bayliss 427 F.3d at 1217 (the ALJ properly rejected an
opinion rendered on the basis of subjective complaints);
Ukolov, 420 F.3d at 1005 (discussing the requirement of
objective medical evidence to a determination of an
impairment).
Because the ALJ gave specific, supported, and germane
reasons for discounting Beeson’s opinion, the
16 DALE V. COLVIN
Commissioner’s decision denying benefits should be
affirmed. Even assuming possible merit in the majority’s
requirement when an ALJ divides “other source” testimony
into “distinct parts,” that situation is not present in this case.
Here, the ALJ correctly determined that the mental
impairment assessments from a non-physician treatment
provider were unsupported by objective medical evidence.