Buck v. Berryhill

• Decision Date: 05 September 2017
• Docket Number: No. 14-35976,14-35976
• Citation: 869 F.3d 1040
• Parties: Gavin Lee BUCK, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

869 F.3d 1040

Gavin Lee BUCK, Plaintiff-Appellant,

v.Nancy A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee.

No. 14-35976

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2017 Seattle, Washington

Filed September 5, 2017

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.

Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit Judges, and Donald E. Walter,^** District Judge.

OPINION

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.

I. FACTUAL BACKGROUND

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 disorder (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 reported increased anxiety and depression.

Buck went to prison at some point after April 24, 2012. He was shot in the legs by police while fleeing arrest. The ALJ considered Buck's eligibility for benefits both before and after he sustained these gunshot wounds.

On remand, Buck had a second hearing before the same ALJ. Dr. Jay Toews, Ph.D., testified as a medical expert at this hearing. Dr. Toews testified that Buck would be capable of remembering and understanding simple instructions, carrying out routine tasks, and could tolerate incidental contact with others. He also testified that Dr. Kenderdine's opinion was unreliable because the Beck depression index used by Dr. Kenderdine produces exaggerated scores at the high end of the scale. Specifically, Buck had a Beck depression score of 41, and Dr. Toews testified that scores over 30 are "exaggerations of true scores." After the ALJ had already issued his ruling, Buck submitted an additional sworn declaration by Dr. Brett T. Copeland, Psy.D., stating that there is no support for Dr. Toews' testimony that Beck scores are exaggerated.

Vocational expert ("VE") Jerie Longacre also testified at Buck's second hearing. She was asked to consider a hypothetical individual who was capable of work at all exertional levels; who could understand, remember, and carry out simple instructions; who could carry out routine tasks; who could tolerate incidental contact with others in a work place; and who would have problems with frequent changes in work requirements. These limitations correspond to the residual functional capacity ("RFC") that the ALJ assessed. The VE testified that someone with Buck's limitations would be able to perform Buck's past work as a stores laborer, tire changer, construction laborer, or shipping and receiving worker.

The VE also testified that after his gunshot wounds, Buck could work in computer assembly, as a bottling line attendant, a bottle packer, or as a conveyor-belt maker. The ALJ posed a third hypothetical, in which the individual would be limited to sedentary work. The VE responded that such an individual could work as a surveillance systems monitor, document preparer, or food and beverage order clerk.

The VE testified that the occupations of bottling line attendant, bottle packer, and conveyor belt maker had national job numbers of 600,000, 8,800, and 235,000, respectively, and Washington state job numbers of 16,000, 200, and 4,400, respectively. Buck's attorneys, allegedly using the same software program as the VE, determined that there are only 231 positions nationally as a bottling line attendant, with six in Washington; 2,039 positions nationally as a bottle packer, with 51 in Washington; and 26 positions nationally as a conveyor belt maker, with none in Washington. The ALJ curtailed Buck's cross-examination of the VE on the issue of job numbers, promising Buck that he would be able to make a post-hearing submission. In the end, however, the ALJ did not address Buck's submission.

The ALJ issued his decision denying Buck benefits on May 17, 2013. Applying the five-step sequential analysis used in disability claims, the ALJ first found that Buck had not engaged in substantial gainful activity since his alleged onset date of March 1, 2008. At step two, he found that Buck suffered from five severe impairments: ADHD, bipolar disorder, personality disorder, marijuana dependence (in remission), and methamphetamine dependence (in remission). As of April 24, 2012, Buck also had the severe impairment of status post gunshot wounds in both lower extremities with fractures in the left leg. At step three, the ALJ found that Buck's impairments do not meet or equal a listed impairment.

In assessing Buck's RFC, the ALJ found Buck's own testimony to be not credible. He noted that Buck had made inconsistent...