DAWN v. MASSANARI

ROBERT E. JONES, U.S. District Judge

On December 12, 2001, I issued an order remanding this action to the Commissioner for further proceedings (# 26). Plaintiff appealed that order, and the parties then agreed to begin mediation. On July 2, 2001, the parties submitted a joint motion for additional merits proceedings before this court (# 33), which I granted (# 34). In that order, I agreed to effectively reconsider my remand order, by addressing two additional issues not addressed in that order: 1) Whether the administrative law judge ("ALJ") rejected medical testimony by correct legal standards; and 2) whether the ALJ properly rejected Plaintiff's testimony. Because I reviewed the background facts of this case in detail in my previous order, I turn directly to an analysis of the two issues before me here.

A. Did the ALJ reject the medical testimony by correct legal standards?

Plaintiff contends that the ALJ improperly rejected the testimony of four doctors: 1) Dr. Kurlychek; 2) Dr. Perry; 3) Dr. Dorsey; and 4) Dr. Lusky.

1. Dr. Kurlychek

Plaintiff argues that "[n]one of the ALJ's reasons for rejecting Dr. Kurlychek's report are legitimate." Plaintiff's Memorandum in Support of Petition for Judicial Review ("Plaintiff's Memo") at 12. Plaintiff challenges each of the bases offered by the ALJ in rejecting Dr. Kurlychek's opinion. After careful review, I agree that the ALJ's analysis regarding Dr. Kurlychek was improper.

At the administrative hearing, Dr. Kurlychek testified generally that while there was some conflicting evidence regarding claimant's disability status, she was indeed disabled. Specifically, he testified:

I am of the opinion that this individual is not now able to seek or maintain gainful employment. This is due to a combination of conditions, e.g., her mood disorder and personality disorder. While she is capable of performing a number of basic skills and tasks, her ability to sustain functioning without disruption from psychologically-based factors is impaired. Assuming that she can receive mental health treatment . . ., I would rate her as being at this level of severity for at least the next six months.

(Tr. 815.)

After evaluating this testimony, the ALJ found that Dr. Kurlychek's ultimate conclusion regarding plaintiff's ability to maintain gainful employment was unjustified in light of the evidence in the record as a whole. The ALJ stated:

The functional limitations which Dr. Kurlychek attributes to the claimant are not consistent with the record. The concurrent reports from Dr. Hill and Mr. Young indicate at least an adequate level of functioning, as suggested by GAF scores which range from 55 at a time when the claimant was showing her symptoms at their worst, to 75 at other points during the claimant's treatment history. Dr. Kurlychek's opinions are inconsistent with those of the medical expert, Dr. Moulton, regarding the extent of the claimant's impairments, as will be indicated in the following paragraphs. His conclusions are inconsistent with the largely unremarkable tenor of this own examination, which found the claimant to have not specific cognitive limitations, and which referred to no significant clinical signs of anxiety or depression. Dr. Kurlychek evidently based his conclusions on the claimant's own statements, in spite of evidence that she tends to exaggerate the level of her symptomatology. Consequently, his assessment of the claimant's functioning cannot be given significant weight. Dr. Kurlychek also steps beyond his role as a psychological specialist when he asserts that an individual of the claimant's abilities and limitations would be unable to work. This involves a vocational judgement [sic] on a matter reserved to the Commissioner, and I cannot accept it ( 20 C.F.R. § 416.927(e)).

(Tr. 18.)

There are significant problems with the ALJ's analysis. First, he improperly rejected Dr. Kurlychek's testimony on the basis of the supposed inconsistency between Dr. Kurlychek's disability finding and "[t]he concurrent reports from Dr. Hill and Mr. Young," which the ALJ concluded "indicate at least an adequate level of functioning." (Tr. 18.) These reports assigned plaintiff GAF scores between 55 and 75. Plaintiff is correct, however, that a GAF score of 55, and even higher, is not necessarily inconsistent with a disability finding. See Schneider v. Commissioner of Social Security, 223 F.3d 968, 973-74 (9th Cir. 2000). Furthermore, Mr. Young himself noted that plaintiff had a "markedly impaired response" to stress and anxiety and was socially ineffective. (Tr. 827-28.)

The ALJ also incorrectly concluded that Dr. Kurlychek's disability finding was "inconsistent with the largely unremarkable tenor of his own examination, which found the claimant to have no specific cognitive limitations, and which referred to no significant clinical signs of anxiety or depression." (Tr. 18.) The ALJ's conclusion that Dr. Kurlychek "referred to no significant clinical signs of anxiety or depression" ignores numerous statements made by Dr. Kurlychek to the contrary. For example, Dr. Kurlychek stated that "[t]he respondent's score on the Anxiety-Related Disorders (ARD) Scale is extremely elevated." (Tr. 812.) He explained that "[t]he ARD Scale taps three major areas of symptomatology: phobias, obsessive-compulsive thoughts and behaviors, and troublesome thoughts related to a traumatic event. The pattern of this patient's item scores reveals that she is likely to have significant symptoms in two of these areas." (Tr. 812.)

Dr. Kurlychek then listed plaintiff's specific conditions and identified the symptoms they were likely to cause: "This individual's primary difficulties relate to psychosocial and personality variables. Her mood disorder and chronic pain color her functioning on a day-to-day basis. Her personality disorder causes exacerbations of emotional distress and presents repeated difficulties in interpersonal relationships." (Tr. 815.) Based on these findings, Dr. Kurlychek reached his conclusion regarding plaintiff's disability status. It is clear from an analysis of Dr. Kurlychek's entire report and testimony that his ultimate conclusion regarding plaintiff's disability status was not inconsistent with his other findings.

For the foregoing reasons, I conclude that the ALJ rejected Dr. Kurlychek's opinions by improper legal standards.

2. Dr. Perry

Plaintiff appears to challenge the ALJ's treatment of Dr. Perry's testimony on three grounds: 1) The ALJ failed to recontact Dr. Perry to clarify his testimony; 2) The ALJ rejected Dr. Perry's testimony on incorrect legal standards when he based his rejection on the inconsistency of that testimony with that offered by Dr. Hill; and 3) He failed to request a medical source statement from Dr. Perry.

With respect to plaintiff's first argument, she correctly states that the ALJ should have contacted Dr. Perry to clarify whether Dr. Perry's assessments were based on plaintiff's statements, which were arguably not credible. Plaintiff relies on 20 C.F.R. § 416.912(e)(1), which provides that when the medical evidence "is inadequate for [the ALJ] to determine whether [the claimant is] disabled," additional information should be obtained. The additional information should include recontacting the physician if there is "a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." § 416.912(e)(1). In this case, the ALJ discredited Dr. Perry's testimony, in part, because it appeared to be based on the claimant's testimony. To the extent that the ALJ rejected Dr. Perry's testimony on that basis, he was required by § 416.912(e) to recontact Dr. Perry for clarification.

In addition, the ALJ improperly rejected Dr. Perry's testimony on the basis that it was inconsistent with Dr. Hill's reports, which were prepared two years earlier. There was substantial information gathered between 1995 and 1997 that might indicate a worsening condition, including the examination of Dr. Dorsey in February of 1996 and that of Dr. Paladini in January of 1997. In addition, Dr. Perry himself indicated that plaintiff suffered a worsening condition between 1995 and 1997: "[Plaintiff's] ability to perform activities of daily living has declined somewhat since she was interviewed by Dr. Kurlychek in June, 1995. . . . This may be due to her severe level of depressive symptomatology or it may be due to a decline in her physical abilities." (Tr. 1076.) While this evidence is not sufficient on its own to establish a worsening condition, it certainly casts doubt on the ALJ's conclusion that Dr. Perry's examination is "inconsistent" with that performed by Dr. Hill in 1995.

Finally, the ALJ failed to request a medical source statement from Dr. Perry, as required by 20 C.F.R. § 416.913(b)(6). That provision states that medical sources providing information to the ALJ regarding the claimant's disability should include medical reports that include "[a] statement about what [the claimant] can still do despite [her] impairment(s)." § 416.913(b)(6). While the provision does go on to state that "the lack of the medical source statement will not make the report incomplete," the ALJ is nevertheless obligated to request the statement, and should have done so in this case. For all of these reasons, I conclude that the ALJ's rejection of Dr. Perry's testimony was improper.

3. Dr. Dorsey

Plaintiff attacks the ALJ's treatment of Dr. Dorsey's testimony on two grounds: 1) The ALJ incorrectly rejected Dr. Dorsey's assessment because it was based on the claimant's statements of symptoms, without recontacting Dr. Dorsey for clarification; and 2) the ALJ failed to obtain a medical source statement from Dr. Dorsey.

Having reviewed the ALJ's treatment of Dr. Dorsey's assessment in detail, I conclude that the ALJ also should have recontacted Dr. Dorsey to determine the degree to which he relied on the claimant's statements in reaching his conclusions. It is clear that the ALJ based his rejection of the GAF score assigned by Dr. Dorsey, in part, on the assumption that Dr. Dorsey was relying on the claimant's exaggerated statements of symptoms: "Dr. Dorsey also assigned a GAF of 45, which appears to be overly pessimistic in view of the unremarkable narrative, and to again be based on the claimant's statements of symptoms." (Tr. 19.) The GAF score being a crucial conclusion reached by Dr. Dorsey, the ALJ could not reject it as based on medically unacceptable techniques without recontacting Dr. Dorsey for clarification.

Finally, plaintiff also asserts that the ALJ erred when he failed to request a medical source statement from Dr. Dorsey. See 20 C.F.R. § 416.913(b)(6). Again, while the absence of such a statement does not render a medical report incomplete, the ALJ is required to request such a report. This, too, rendered the ALJ's rejection of Dr. Dorsey's testimony improper.

4. Dr. Lusky

Plaintiff also argues that the ALJ erred in his treatment of Dr. Lusky's opinion. Because Dr. Lusky's opinion is largely illegible, in its response memorandum, the Commissioner concedes that remand is appropriate to determine whether Dr. Lusky's opinion supports the ALJ's findings. The Commissioner agrees that further evidence will be obtained from Dr. Lusky on remand. Defendant's Memo at 10.

B. Did the ALJ reject plaintiff's testimony by correct legal standards?

Finally, plaintiff contends that the ALJ rejected her testimony by improper legal standards. Plaintiff testified that she suffered from pain and other physical limitations, including hand and foot pain, back pain, leg swelling, headaches and periodic numbness. She also stated that she had trouble concentrating for long periods of time and considered her emotional condition too severe to maintain a job. (Tr. 74-95.)

In his opinion, the ALJ found plaintiff's testimony not entirely credible. He considered her complaints regarding physical limitations "unpersuasive," noting that her course of treatment was oriented toward treatment for mental, rather than physical, problems. (Tr. 27.) With respect to her mental impairments, the ALJ noted that she was repeatedly described in the record as exaggerating her symptoms and being motivated primarily out of a desire to obtain benefits. (Tr. 27-28.)

Plaintiff argues that the ALJ's conclusions regarding her credibility were illegitimate and plaintiff's testimony must therefore be taken as true. She correctly points out that a claimant who alleges disability based on subjective symptoms need only "produce objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citations omitted).

"The claimant need not produce objective medical evidence of the pain or fatigue itself, or the severity thereof." Id. Unless there is evidence of malingering, an ALJ cannot reject the claimant's testimony regarding the level of pain actually experienced unless he or she sets forth "clear and convincing" reasons. See Dodrill v. Shalala, 12 F.3d 915, 917-18 (9th Cir. 1993).

In this case, however, there is evidence of malingering that was specifically noted by the ALJ. First, on the basis of separate examinations, Drs. Mace, Perry and Kurlychek all noted plaintiff's tendency to exaggerate her symptoms. (Tr. 27.) Second, the ALJ specifically found that plaintiff's performance on several tests cast doubt on her complaints that she was unable to concentrate. Finally, there is substantial evidence that plaintiff was primarily concerned with obtaining benefits. Mr. Young, for example, noted that plaintiff refused to work "with any VRD or agency willing to get her employable. Her only desire is to have the government support her at this point." (Tr. 826.) In light of the ALJ's findings and the evidence of malingering on the record, the ALJ was not required to provide clear and convincing reasons for rejecting plaintiff's subjective pain testimony. See Pfeiffer v. Apfel, 2001 WL 204831 (D.Or. 2001). However, even if that standard applied, the ALJ still provided sufficient reasons to reject claimant's testimony.

With respect to plaintiff's physical ailments, she testified that she suffered from hand and wrist pain, back pain, foot pain, headaches, lethargy, periodic numbness and swelling of the left leg. (Tr. 74-95.) As a result of these ailments, plaintiff stated that she was effectively unable to function. The ALJ noted that claimant's various activities, however, which included driving, doing laundry, shopping, carrying bags, dusting, doing dishes, visiting her children, oil painting and attending weekly "Emotions Anonymous" meetings, were inconsistent with plaintiff's testimony.

The ALJ found that plaintiff's statements regarding her mental limitations were also not sufficient to support her claim of disability. (Tr. 28.) He noted that plaintiff had not undergone sustained mental health treatment at a hospital or other health facility, casting doubt on her claims of severe mental limitations. He also emphasized that the impairments she had experienced had been effectively treated with Paxil, and that her most acute episode occurred when she had ceased taking her medication.

Finally, in his summary, the ALJ observed that plaintiff's presentation was "inappropriately histrionic and goal directed," and reflected that he "did not consider her demeanor to be credible." (Tr. 28.) Given the substantial evidence of malingering in the record, combined with the ALJ's detailed findings regarding plaintiff's credibility, I conclude that the ALJ rejected plaintiff's allegations by correct legal standards.

The original remand order issued by this court (# 26) is affirmed with the additional findings contained herein.