Ghanim v. Colvin

• Decision Date: 18 August 2014
• Docket Number: No. 12–35804.,12–35804.
• Citation: 763 F.3d 1154
• Parties: Jasim Abo GHANIM, Plaintiff–Appellant, v. Carolyn W. COLVIN, Commissioner of the Social Security Administration, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1154

Jasim Abo GHANIM, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Commissioner of the Social Security Administration, Defendant–Appellee.

No. 12–35804.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 7, 2013.

Filed Aug. 18, 2014.

Charles W. Talbot (argued), Talbot & Associates, PS, Tacoma, WA, for Plaintiff–Appellant.

Jenny A. Durkan, United States Attorney, Kerry Jane Keefe, Assistant United States Attorney, Lars J. Nelson (argued), Assistant Regional Counsel, David Morado, Regional Chief Counsel, Region X, and Gerald J. Hill, Assistant Regional Counsel, Social Security Administration, Seattle, WA, for Defendant–Appellee.

Appeal from the United States District Court for the Western District of Washington, Brian Tsuchida, Magistrate Judge, Presiding. D.C. No. 2:11–cv–01954–BAT.

Before: ALEX KOZINSKI, Chief Judge, and RICHARD A. PAEZ and MARSHA S. BERZON, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

Jasim Abo Abi Shalash Abo Ghanim appeals from the district court's judgment affirming the Social Security Commissioner's denial of his application for Disability Insurance Benefits and Supplemental Security Income. In denying Ghanim's application for benefits, the Administrative Law Judge (“ALJ”) rejected the opinions of Ghanim's treating physician and other treating providers as to the severity of his impairments. The ALJ also found Ghanim's testimony about the severity of his symptoms not credible. On reconsideration, the Social Security Administration (“SSA”) concluded that Ghanim was disabled after all, but determined that the onset date for his disability was March 28, 2012, rather than April 5, 2009, as Ghanim originally alleged. At issue here is only whether Ghanim is entitled to benefits for the intervening period. We hold that the weight the ALJ accorded to Ghanim's treating providers and the ALJ's adverse credibility determination are not supported by substantial evidence. We therefore reverse and remand for further proceedings.

I. BACKGROUND

A. Ghanim's personal and medical history

Ghanim immigrated to the United States in 1994 as a refugee from Iraq, where he had been imprisoned and tortured for two years. He worked consistently from 1994 to 2009 in a variety of jobs. In 2009, Ghanim's brother, who lived in Iraq and worked with the United States military, was killed. Ghanim was deeply affected by his brother's death; he had nightmares and trouble sleeping, became very forgetful, and frequently felt unsafe and hopeless. After his brother's death, Ghanim stopped working.

1. Treating providers

In July 2009, Ghanim began receiving counseling and psychiatric care, first at Highpoint Medical Clinic and then at Harborview Medical Center. At Harborview Medical Center, Ghanim met with several different medical professionals, including Christine Elizabeth Youdelis–Flores, M.D., Nina Spellman Geiger, ARNP, Lawrence McCann, LICSW, and John Blatchford, LICSW. All of these individuals met with Ghanim several times over the course of his treatment. Their treatment notes reflect both ongoing psychological impairment—including depression, difficulty sleeping, nightmares, nervousness, memory loss, and anger—and some signs of improvement—such as higher energy, higher activity levels, and brighter mood. The treatment notes also show that Ghanim was diagnosed with major depressive disorder and post-traumatic stress disorder (“PTSD”), for which he was prescribed numerous anti-depressant and anti-anxiety medications.

In March 2010, Geiger and McCann submitted a Psychological Evaluation to the Washington State Department of Social & Health Services. The evaluation contained diagnoses of major depressive disorder and PTSD. The evaluation also noted marked cognitive and social impairment related to Ghanim's inability to manage social situations.¹ In October 2010, Dr. Youdelis–Flores and Blatchford sent a letter to Ghanim's attorney, expressing their opinion that “[d]ue to his mental illness, we feel it is highly unlikely [Ghanim] would be able to engage in meaningful adult activities or employment in the near future.” In support of this opinion, they referred to his symptoms, including nightmares, intermittent sleep, low energy, and depressed mood, and the diagnoses of PTSD and major depression, recurrent, with psychotic features.

2. Examining physicians

In June 2009, Ghanim was examined by Victoria McDuffee, Ph.D., a psychologist. Ghanim reported “increasing agitation, hypervigilance, nightmares, [and] daily intrusive thoughts.” Dr. McDuffee observed that Ghanim presented as “emotional[ly] labile, angry, hostile, and resentful” and that he appeared “paranoid, suspicious of others,” and “extremely ‘edgy.’ ” Dr. McDuffee administered a mental status examination, with the following results: (1) mini-mental status score: 30 (no cognitive impairments), (2) Beck depression score: 49 (severe depression), (3) Beck anxiety score: 44 (severe anxiety).² She identified a number of severe functional limitations, including inability to: relate appropriately to coworkers and supervisors; interact appropriately in public; respond appropriately to, and tolerate, the pressures and expectations of a normal work setting; and maintain appropriate behavior. She diagnosed Ghanim with PTSD, personality disorder, major depressive disorder, and generalized anxiety disorder.

In December 2009, at the request of Washington's Department of Disability Services, Ghanim met with Wayne C. Dees, Psy.D. Dr. Dees also administered a mental status exam. He noted that Ghanim was “generally alert and friendly throughout the evaluation, but mildly irritable at times.” He also noted, however, that Ghanim's “presentation was consistent with anxious mood, and his affect was blunted.” He concluded that Ghanim “endorses symptoms of PTSD, including exaggerated startle, hypervigilance, fear and avoidance, intrusive thoughts, emotional numbing, and nightmares.” Ghanim fared poorly on the cognitive portion of the test, and Dr. Dees concluded that he has a “severely impaired ability to learn” and “[o]verall cognitive functioning appears to be impaired.” He indicated that Ghanim was able to complete “simple but not complex instructions.” However, Dr. Dees thought that Ghanim's “cognitive deficits may not be as severe as he claims,” and stated that “malingering is suspected based on [Ghanim's] performance during the evaluation.” He did not make a definitive diagnosis of malingering, however, explaining that further evaluation was recommended before a determination could be made. He diagnosed Ghanim with depressive disorder NOS, PTSD, anxiety disorder NOS, and cognitive disorder NOS.³

3. Reviewing physicians

In December 2009, the state agency's medical consultant, Gerald L. Peterson, Ph.D., performed a mental residual functional capacity assessment. He determined that Ghanim's only limitation was a moderate limitation in his ability to complete a normal workday without interruption from psychologically-based symptoms. Dr. Peterson explained that Ghanim could perform “simple and complex tasks,” was described as friendly and cooperative, socialized with friends and attended religious services, and was able to move and find stable employment. In February 2010, another state medical consultant, Beth Fitterer, Ph.D., reviewed Dr. Peterson's mental residual functional capacity assessment. She noted that updated medical records did not alter the previous opinion and affirmed Dr. Peterson's assessment. Neither Dr. Peterson nor Dr. Fitterer ever met with Ghanim, and it is not clear what medical records they reviewed at the time of their respective assessments.

B. Procedural history

On October 15, 2009, Ghanim applied for Disability Insurance Benefits and Supplemental Security Income, claiming he had been disabled since April 5, 2009. His application was denied. He filed a request for reconsideration, which was also denied. He then requested a hearing before an ALJ, which was held in December 2010.

At the hearing, Ghanim testified about the extent of his impairments. He reported that even with medication, he suffered from “constant[ ]” nightmares. He also testified about his social anxiety, stating that “I ... confine myself to my home, just sitting there because I don't want to go outside and interact with people.” Finally, he explained how his depression caused him to “neglect” himself. He would allow dirty clothes to pile up. He was afraid to cook because his memory was poor and he would forget things in the oven. He testified that he depended heavily on his friend and caretaker, Majid Al–Haider, for assistance with his basic self-care and for much of his limited social interactions. Al–Haider would visit him daily, help him with chores, take him outside, and occasionally take him to spend time with his family.

The only other witness to testify at the hearing was Iris Brookshire, a vocational expert. The ALJ sought her opinion on whether a person with Ghanim's limitations could perform any gainful work in the national economy. To that end, the ALJ posed a hypothetical question describingan individual who had limited English proficiency but who could understand, remember, and carry out basic tasks, had an average ability to perform sustained work activities, could respond appropriately to supervision and coworkers, and could deal with changes within a stable work environment. The vocational expert opined that such a person would be able to perform work as a kitchen helper and a commercial cleaner. However, if the individual had difficulty completing a normal workday and would miss more than two days of work per month due to his mental health impairments, the vocational expert testified, the individual would not be able to find work as a kitchen helper or commercial cleaner.

Ghanim also submitted a letter from Al–Haider in support of his application. Al–Haider described Ghanim's personal history and his current difficulties. Most notably, he...