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Buck v. Berryhill

United States Court of Appeals, Ninth Circuit

September 5, 2017

Gavin Lee Buck, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.

          Argued and Submitted July 10, 2017 Seattle, Washington

         Appeal 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.

         SUMMARY [**]

         Social Security

         The 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.

         The 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.

         Concerning 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.

         The 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.

         The 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 on remand.

          Charles W. Talbot (argued), Tacoma, Washington, for Plaintiff-Appellant.

          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:

         Gavin 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 administrative proceedings.


         Buck 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.[1] 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.

          The 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 work."

         Starting 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.

         Buck filed applications for SSDI and SSI benefits on September 17, 2008, with an alleged onset date of March 1, 2008.

         On 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.

         In 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.

         This 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.

          The 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.

         On 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.

         Buck did not obtain treatment between 2009 and 2011. When he went for treatment at Valley Cities in March 2011, he ...

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