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Bernovich v. Berryhill

United States District Court, D. Idaho

March 27, 2017

SCOTT ALLEN BERNOVICH, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, [1]Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge

         INTRODUCTION

         Pending before the Court is the Petition for Review of the Commissioner's denial of Disability Insurance Benefits and Supplemental Security Income filed by Petitioner Scott Allen Bernovich on October 9, 2015. (Dkt. 2.) Pursuant to 28 U.S.C. § 636(c), all parties consented to the exercise of jurisdiction over this matter by the undersigned United States Magistrate Judge. (Dkt. 11.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR), and for the reasons that follow, the Court will remand the decision of the Commissioner.

         PROCEDURAL AND FACTUAL HISTORY

         Bernovich filed an application for Disability Insurance Benefits and Supplemental Security Income on November 9, 2010, claiming disability beginning on September 30, 2009, due to depression, anxiety disorder, carpal tunnel, bi-polar disorder, and dyslexia. His application was denied initially and on reconsideration, and a hearing was held on January 10, 2012, in Seattle, Washington, before Administrative Law Judge (ALJ) Laura Valente. After taking testimony from Bernovich and a vocational expert, ALJ Valente issued a decision finding Bernovich not disabled on January 26, 2012. Bernovich timely requested review by the Appeals Council, which denied his request for review on June 20, 2012. Petitioner appealed that final decision to the United States District Court for the Western District of Washington under 42 U.S.C. § 405(g). Pursuant to a stipulation between the Commissioner and Bernovich, the court reversed and remanded the Commissioner's decision.[2] The Appeals Council remanded the case for a new hearing on March 5, 2013.

         The remand hearing occurred on August 19, 2014, in Boise, Idaho, before ALJ Marie Palachuk. After taking testimony from Bernovich and a new vocational expert, ALJ Palachuk issued a decision finding Bernovich not disabled on November 4, 2014. (AR 457.) The Appeals Council denied review on August 10, 2015, making the ALJ's determination the final decision of the Commissioner. (AR 445.) Bernovich appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         Bernovich was born in 1969 and was 44 years of age at the time of the remand. His past work experience includes restaurant cook, bartender, retail sales clerk, and computer repairman. (AR 475.) Bernovich last worked in 2009 as a computer repairman at an office supply superstore, but quit due to his mental impairments.

         From October 9, 2010, through June 10, 2010, Bernovich received counseling and medication treatment for bi-polar disorder and moderately severe depression from various doctors and social workers at the Health Point-Kent Clinic in Washington State. On his first visit to the clinic, on October 9, 2009, Bernovich presented experiencing a suicidal episode. He was seen by Mark A. Wentworth, M.D., and Lisa Martin, Ph.D. (AR 334.) Dr. Martin doubted that Bernovich was bi-polar, but opined that Bernovich was “deeply depressed.” (AR 333.) Both medical professionals thought in-patient treatment was necessary; however, all beds were full at the time. When Bernovich learned that he would not be receiving in-patient treatment, he became agitated, police and emergency medical were summoned, and Bernovich was taken to a nearby hospital emergency room.

         Bernovich saw Dr. Wentworth again on November 9, 2009, December 8, 2009, and January 6, 2010. During each visit, Dr. Wentworth opined that Bernovich exhibited signs of depression, although his symptoms had improved since his first visit in October of 2009. (AR 329, 327, 325.) Over this period of time, Dr. Wentworth treated Bernovich for depression by prescribing Ativan and Paxil. At the request of Bernovich, Dr. Wentworth completed a work capacities assessment in early January of 2010: Dr. Wentworth opined that Bernovich's mental impairments precluded him from all work. Bernovich next saw Melissa S. Negeretti, M.D., at the Health Point-Kent Clinic on March 4, 2010, May 7, 2010, and June 2, 2010. She continued managing Bernovich's medications and recorded that Bernovich continued to suffer from severe depression during each visit. (AR 320, 317.)

         Toward the end of 2010 and through 2012, Kitsap Mental Health Services provided ongoing counseling and treatment (including medication management) to Bernovich for bi-polar II disorder, generalized anxiety disorder, adjustment disorder with mixed anxiety and depressed mood, and major depressive disorder. This care and treatment was under the direction of Licensed Mental Health Counselor Pamela Whitely, and Advanced Registered Nurse Practitioner Patrick Graham. (AR 360, 367-8, 421, 758-9, 390.)

         In late 2012, Bernovich and his fiancé (now wife), Jacqueline Davis, moved to Mississippi to live with Ms. Davis's parents.[3] During this period, Bernovich did not take medication for his mental health conditions. At the remand hearing before ALJ Palachuk, Bernovich explained that he attempted to seek mental health services in Mississippi; however, to access state services, Bernovich had to be a Mississippi resident for at least one year. Bernovich and his wife moved to Lewiston, Idaho, in December of 2013. In February of 2014, Bernovich continued his treatment at the Snake River Clinic for bipolar disorder and depression. (AR 755, 765.)

         Since 2009, five examining physicians evaluated Bernovich in connection with his disability claims. First, on October 1, 2009, William R. Wilkinson, Ed.D, with the Washington State Department of Health and Welfare, evaluated Bernovich. (AR 292.) Dr. Wilkinson observed certain markedly severe depression symptoms: no concentration; no motivation; inability to multitask; and, catastrophic thinking. (AR 293.) He observed anxiety symptoms of a marked to severe inability to focus, extreme feelings, obsessive thoughts, and panic attacks. (Id.) Dr. Wilkinson diagnosed Bernovich with bi-polar mixed-manic depression, agitated depression, and panic disorder without agoraphobia, and assessed a Global Assessment of Functioning (GAF) of 45. (AR 294.) Dr. Wilkinson's evaluation found no indication of current or recent substance abuse. Id. He opined that Bernovich was not capable of working at that time. (AR 295.)

         On May 28, 2010, Shawn K. Kenderdine, Ph.D., with the Washington State Department of Health and Welfare, evaluated Bernovich. (AR 304.) Dr. Kenderdine observed the following severe depression symptoms: low energy levels, low motivation, social isolation, and increased irritability interfering with ability to interact with co-workers and supervisors. He noted that Bernovich's anxiety “interfered” with the following symptoms: inability to focus and sustain concentration, poor short term memory, and poor ability to learn new work-related material. He assessed a GAF of 55. Dr. Kenderdine reported also that Bernovich suffered from polysubstance abuse. He noted the abuse began at the age of 16, that Bernovich last used the month prior to the evaluation, his substance abuse “impacted all areas of his life, ” and his depression and anxiety likely predated the substance abuse. (AR 307.) Dr. Kenderdine did not include what substances Bernovich used or the extent of the abuse occurring at the time of his evaluation (i.e., whether the abuse occurred in the past, or was ongoing). Dr. Kenderdine opined that Bernovich was capable of performing activities of daily living and could interact on a superficial level with a few individuals. (AR 308.)

         On August 4, 2010, and again on July 11, 2011, Norma L. Brown, Ph.D., with the Washington State Department of Health and Welfare, evaluated Bernovich regarding his eligibility for public assistance. (AR 341, 432.) During her first clinical evaluation, Dr. Brown observed severe depressive symptoms of low energy, and marked problems with sustained concentration and persistence. During her later clinical evaluation with Bernovich, Dr. Brown observed marked problems with sustained concentration and persistence and severe low energy. (AR 433.) She noted errors on a trail making test, indicating inattention. (AR 434.) Dr. Brown diagnosed Bernovich with bi-polar disorder and panic disorder, and assessed a GAF of 45 during both evaluations. (AR 343, 433-4.)

         On March 7, 2011, Shannon L. Jones, Ph.D., with Harbor Behavior Health in Gig Harbor, Washington, conducted a psychological evaluation of Bernovich and opined that he suffered from bi-polar II disorder. (AR 378.) She found that he met the criteria for having experienced a major depressive episode, including mood cycling, anhedonia, anger, difficult with focus and concentration, poor appetite, broken sleep, fatigue, lack of motivation, hopelessness, and suicidal ideation without plan or intent. (AR 381.) Dr. Jones assessed Bernovich's GAF as 50. During her interview of Bernovich, she recorded history of past alcohol abuse with no current or recent substance use or abuse. (AR 379.) Dr. Jones noted that Bernovich's “alcohol dependence” was in “full sustained remission.” (AR 381.)

         Finally, in December of 2013 while in Mississippi, Bernovich had a psychological evaluation with J.D. Matherne, Ph.D. During this, Bernovich reported a detailed history of alcohol abuse, but denied having a current problem with alcohol use or abuse. (AR 474.) Dr. Matherne diagnosed Bernovich with adjustment disorder with mixed anxiety and depressed mood, and mixed personality disorder. (AR 749.) Dr. Matherne opined that Bernovich appeared to be “mildly impaired in his ability to perform routine, repetitive tasks, ” and that he was “mildly impaired in his ability to interact with co-workers and supervisors.” Id.

         Two non-examining state agency psychologists, John Robinson and Dan Donahue, reviewed Bernovich's medical record on March 3, 2011, and June 16, 2011, respectively. Both psychologists opined Bernovich would “function best in limited public setting [with] familiar coworkers as [claimant] has [history] if HI and social avoidance.” (AR 113, 128.)

         SEQUENTIAL PROCESS

         The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantial gainful activity. The ALJ found Bernovich had not engaged in substantial gainful activity since his alleged onset date of September 30, 2009.

         At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Bernovich's bi-polar disorder, depression, anxiety, and alcohol abuse severe within the meaning of the Regulations.

         Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found Bernovich's impairments did not meet or equal the criteria for the listed impairments, specifically considering the criteria of Listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), and 12.09 (substance addiction disorders). If a claimant's impairments do not meet or equal a listing, the Commissioner must determine the claimant's residual functional capacity (RFC) and next determine, at step four, whether the claimant has demonstrated an inability to perform past relevant work.

         The ALJ found Bernovich retained the capacity to ability a full range of work at all exertional levels, but with the following non-exertional limitations: he is able to understand, remember and carry out simple, routine and repetitive tasks and instructions, and well learned detailed tasks; he is able to maintain attention and concentration of two-hour intervals between regularly scheduled breaks; he is capable of a low stress job (defined as only occasional changes in work settings/routine and only occasional need to use judgment/decision-making); he is limited to no interaction with the public and only superficial interactions with co-workers and supervisors. (AR 465.)

         At step four, the ALJ found Bernovich was not able to perform his past relevant work as a restaurant cook, bartender, retail sales clerk, or computer repairman. If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate, at step five, that the claimant retains the ability to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's RFC, age, education and work experience. With the RFC described above, the ALJ found Bernovich could perform the requirements of representative occupations such as fish cleaner, dining room attendant, and housekeeper-cleaner.

         STANDARD OF REVIEW

         Petitioner bears the burden of showing that disability benefits are proper because of the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he not only cannot do his previous work but is unable, considering his age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

         On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

         The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist that supports the petitioner's claims. 42 U.S.C. § 405(g); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court “may not substitute [its] judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).

         When reviewing a case under the substantial evidence standard, the Court may question an ALJ's credibility assessment of a witness's testimony; however, an ALJ's credibility assessment is entitled to great weight, and the ALJ may disregard a claimant's self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled role as the judge of credibility will be upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).

         DISCUSSION

         Bernovich contends the ALJ erred at steps two and four. Bernovich first alleges the ALJ erred by not including or considering his personality disorder as a severe impairment. Second, Bernovich asserts the ALJ committed error by failing to provide specific and legitimate reasons supported by substantial evidence for rejecting or providing minimal weight to the opinions of his treating physician and several examining medical professionals. Third, Bernovich contends the ALJ erred in assessing his credibility. And, finally, Bernovich argues the ALJ improperly weighed the lay testimony of his wife, Ms. Davis. Each of Bernovich's assignments of error will be discussed in turn.

         I. Severe Impairments

         As noted, the ALJ found Bernovich has the severe impairments of bi-polar disorder, depression, anxiety disorder, and alcohol abuse. In Bernovich's Application for Social Security Benefits, under the “medical conditions” section, Bernovich was instructed to list “all physical or mental conditions… that limit [his] ability to work.” (AR 207.) Although Bernovich did not list “personality disorder” as a condition, he now asserts the ALJ erred at step two because she failed to consider his personality disorder as one of his severe impairments.

         The United States Court of Appeals for the Ninth Circuit has held that, when an ALJ resolves step two in a claimant's favor-i.e., finding that a severe impairment exists-the ALJ's failure to identify additional severe impairments is harmless, especially if the ALJ considered the impairment later in the sequential process. Pouppirt v. Comm'r of Soc. Sec., 609 F.App'x 440, 441 (9th Cir. 2015); see also Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Accordingly, because the ALJ resolved step two in Bernovich's favor and discussed his personality disorder later in the sequential process, [4] the Court finds any error by the ALJ in failing to identify Bernovich's personality disorder as an additional severe impairment was harmless.

         II. Physician/Psychologist Opinions

         Bernovich argues the ALJ erred by failing to provide specific and legitimate reasons[5] for rejecting, or providing only minimal weight to, the opinions of his treating physician, Dr. Wentworth, and five examining physicians-Drs. Matherne, Kenderdine, Jones, Brown, and Wilkinson. The Commissioner contends the ALJ properly weighed all medical opinion evidence. With the exception of the ALJ's findings as to Drs. Matherne and Kenderdine, the Court finds as more fully explained below, the ALJ erred when assigning weight to the opinions of Drs. Wentworth, Jones, Brown, and Wilkinson.

         A. Legal Standard

         The United States Court of Appeals for the Ninth Circuit distinguishes among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir.1995). Generally, more weight is accorded to the opinion of a treating source than to nontreating physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987).

         If the treating physician's opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject the treating physician's opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). Likewise, the ALJ must provide clear and convincing reasons for rejecting the un-contradicted opinions of an examining physician. Lester, 81 F.3d at 830-31. And, “like the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Id.

         “The ALJ is responsible for resolving conflicts in medical testimony, and resolving ambiguity.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (internal citation omitted). “Determining whether inconsistencies are material (or in fact inconsistencies at all) ... falls within this responsibility.” Id. “An ALJ can meet the requisite specific and legitimate standard for rejecting a treating physician's opinion deemed inconsistent with or unsupported by the medical evidence ‘by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'” Smith v. Astrue, 2011 WL 3962107, at *5 (C.D. Cal. Sept. 8, 2011) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).

         B. Dr. Wentworth

         Bernovich argues the ALJ erred by rejecting the opinion of treating physician, George Wentworth, provided in a work capacities assessment. In that assessment, Dr. Wentworth opined Bernovich's severe and marked mental impairments precluded him from sustaining full time employment. In her decision, the ALJ proffered two reasons for rejecting Dr. Wentworth's opinion: (1) the opinion was not based on “specific observations or examination findings;” and (2) the opinion was inconsistent with “the longitudinal medical evidence, the claimant's objective exam findings, progress notes, activities and demonstrated functioning.” (AR 474.) As explained below, neither is a specific and legitimate reason supported by substantial evidence to reject the testimony of a treating and examining physician.

         In her decision, the ALJ set forth a detailed summary of Bernovich's mental health and medical records, including the work capacities assessment completed by Dr. Wentworth at Bernovich's request, dated January 5, 2010. (AR 474.) In the assessment, Dr. Wentworth diagnosed Bernovich with major depression and opined that Bernovich's condition rendered him unable to maintain employment. (AR 338.) Dr. Wentworth opined that Bernovich's depression limited his ability to follow instructions, concentrate for extended periods of time, and interact with others. Id. He noted Bernovich had low level social skills, and that it required “great effort” for Bernovich to access healthcare ...


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