and Submitted July 10, 2017 Seattle, Washington
from the United States District Court for the Western
District of Washington DC No. 2:13-cv-02283-JCC, John C.
Coughenour, Senior District Judge, Presiding
Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit
Judges, and Donald E. Walter, [*] District Judge.
panel reversed the district court's judgment affirming
the Commissioner of Social Security's denial of
claimant's applications for Disability Insurance Benefits
and Supplemental Security Income under the Social Security
Act, and remanded for further administrative proceedings.
panel rejected claimant's contentions that the
administrative law judge ("ALJ") erred at step two
of the five-step sequential analysis by not adequately
incorporating all severe impairments into the determination
of claimant's residual functional capacity, and by
calling his antisocial personality disorder merely a
"personality disorder" without qualification. The
panel held that step two is merely a threshold determination
meant to screen out weak claims, and was not meant to
identify the impairments that should be taken into account
when determining the residual functional capacity. The panel
further held that step two was decided in claimant's
favor, and he could not possibly have been prejudiced, and
any alleged error was therefore harmless.
the rejection of Dr. Kenderdine's opinion, which involved
a psychiatric evaluation, the panel held that in the context
of this case, Dr. Kenderdine's partial reliance on
claimant's self-reported symptoms was not a valid reason
to reject his opinion. The panel also held that the ALJ's
use of the opinion of a non-examining medical expert (which
was rejected by the opinion of another non-examining
physician) to reject Dr. Kenderdine's opinion was not a
valid basis for rejecting Dr. Kenderdine's opinion.
panel held that the law of the case doctrine did not preclude
this court from considering claimant's arguments
regarding the ALJ's treatment of the opinions of Drs.
Schechter and Fisher - where the district court, in a prior
appeal, affirmed the ALJ's treatment of those opinions
and remanded for a second hearing before the ALJ - because
the law of the case doctrine applies only to decisions by the
same or a higher court. The panel held that the ALJ did not
err in rejecting the opinion of Dr. Schechter where there was
a discrepancy between the physician's opinion and the
physician's own notes. The panel also held that the ALJ
correctly interpreted Dr. Fisher's opinion, which was
submitted on a form, by relying solely on the third section
of the form where the physician wrote his narrative opinion.
panel held that the vast discrepancy between the vocational
expert's testimony concerning job numbers and those
tendered by the claimant was too striking, and concluded that
the inconsistency in the record must be addressed by the ALJ
Charles W. Talbot (argued), Tacoma, Washington, for
Jeffrey Raymond McClain (argued), Assistant Regional Counsel;
David Morado, Regional Chief Counsel, Seattle Region X; Kerry
Jane Keefe, Assistant United States
Attorney; Annette L. Hayes, United States Attorney; Office of
the General Counsel, Social Security Administration, Seattle,
Washington; for Defendant-Appellee.
TASHIMA, Circuit Judge:
Buck ("Buck") appeals the district court's
judgment affirming the denial of Social Security Disability
Insurance ("SSDI") and Supplemental Security Income
("SSI") benefits. Buck is diagnosed with several
mental illnesses, including bipolar disorder, antisocial
personality disorder, and attention deficit hyperactivity
disorder ("ADHD"). We have jurisdiction under 28
U.S.C. § 1291 and we reverse and remand for further
was born in 1977. He has worked in the past as, among other
things, a stores laborer, construction laborer, and tire
changer. The longest he was ever employed was 17 months,
working for Pioneer Human Services as a shipping and
receiving worker. Buck attributes his failure to keep a job
to his mental illnesses, which cause him to miss a lot of
work. He also has trouble concentrating and tends to get
nervous around people and lash out at them.
medical record in this case begins with an examination by Dr.
Shawn Kenderdine, Ph.D., on May 19, 2008. Dr. Kenderdine
performed his examination on behalf of the Washington
Department of Social and Health Services ("DSHS").
Dr. Kenderdine performed both a clinical interview and a
mental status evaluation. Buck's results indicated that
his learning would be impaired to some degree. Dr. Kenderdine
diagnosed Buck with ADHD, methamphetamine dependence in
remission, major depressive disorder, and antisocial
personality disorder. He assessed limitations in Buck's
ability to exercise judgment and make decisions, to relate
appropriately to co-workers and supervisors, to respond
appropriately to and tolerate the pressures of a work
setting, to control physical or motor movements, and to
maintain appropriate behavior. In addition to his clinical
observations, Dr. Kenderdine also noted that Buck
"reported attendance problems and poor attention as
interfering with his ability to sustain or maintain
in July 2008, Buck received treatment from Valley Cities
Counseling and Consultation ("Valley Cities"). A
mental status examination by Valley Cities found that Buck
had an anxious affect, impaired concentration, poor impulse
control, and poor insight into his problems.
filed applications for SSDI and SSI benefits on September 17,
2008, with an alleged onset date of March 1, 2008.
November 13, 2008, Buck was examined by Dr. Allison
Schechter, Psy.D., at the request of the Social Security
Administration ("SSA"). Dr. Schechter reviewed Dr.
Kenderdine's report, a psychiatric evaluation done at
Valley Cities, and Valley Cities' treatment notes. She
also conducted an interview and a mental status evaluation.
Dr. Schechter diagnosed Buck with ADHD (combined type,
childhood onset), bipolar disordar (not otherwise specified),
adult antisocial behavior, and methamphetamine and marijuana
dependence (in remission per history). She assigned a Global
Adult Functioning ("GAF") score of 60.
Functionally, Dr. Schechter opined that Buck might have
difficulty performing both simple and repetitive tasks, as
well as detailed and complex tasks. In addition, Buck would
easily become irritated and act out inappropriately when
irritable. Overall, Buck's disorders would interfere with
his ability to work consistently and on a regular schedule.
December 2008, Dr. Alex Fisher, Ph.D., performed a
psychiatric review of Buck's file for the SSA. He
diagnosed Buck with ADHD and bipolar disorder. He determined
that Buck was only moderately functionally limited. Dr.
Fisher's results were affirmed by Dr. Mary Gentile, Ph.D.
case has been heard by an Administrative Law Judge
("ALJ") twice. The first hearing was in September
2009. At that hearing, Dr. Arthur Lewy, Ph.D., testified as a
medical expert. Dr. Lewy opined that Buck has only mild
limitations in daily living and social function, and moderate
limitations in concentration, persistence, and pace, and
concluded that Buck could do simple, repetitive work. Dr.
Lewy further opined that the Schechter report was not
reliable because Dr. Schechter frequently qualified her
conclusions with the word "may." In addition, he
noted discrepancies between Dr. Schechter's notes and her
conclusions. For example, she assessed a GAF score of 60,
which implies only moderate symptoms, but her conclusions
indicated severe symptoms.
ALJ denied Buck's claims for benefits. This denial was
eventually appealed to the district court, which remanded the
case to the ALJ. One of the reasons for the remand was that
the ALJ improperly rejected Dr. Kenderdine's opinion.
April 30, 2009, Richard Hockett B.A. ("Hockett")
performed an assessment of Buck at the request of the DSHS.
He diagnosed Buck with bipolar I disorder and ADHD. He
assessed marked functional limitations in ability to remember
and follow simple or complex instructions, in the ability to
exercise judgment and make decisions and to perform routine
tasks. He also noted a moderate limitation on the ability to
learn new tasks. Hockett wrote that Buck was severely
impaired socially, unable to respond appropriately to and
tolerate the pressures and expectations of a normal work
setting, and markedly limited in the ability to relate
appropriately to co-workers, supervisors, and the public.
did not obtain treatment between 2009 and 2011. When he went
for treatment at Valley Cities in March 2011, he ...