Randall K. Lubin v. Commissioner of Social Security Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Judge Bybee was drawn to replace Judge B. Fletcher. He has read the**
briefs and reviewed the record.
The Honorable Consuelo B. Marshall, Senior District Judge for the***
U.S. District Court for the Central District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL K. LUBIN,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
No. 11-35462
D.C. No. 6:09-cv-01043-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted July 13, 2012
Portland, Oregon
Before: PREGERSON and BYBEE, Circuit Judges, and MARSHALL, Senior**
District Judge.***
FILED
FEB 08 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Plaintiff-Appellant Randall K. Lubin (“Lubin”) appeals the district court’s
judgment upholding the Commissioner of Social Security’s denial of his
application for disability insurance benefits under Title II of the Social Security
Act. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and
remand for further proceedings.
“We review de novo a district court’s judgment upholding the denial of
social security benefits.” Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
We “set aside a denial of benefits only if it is not supported by substantial evidence
or is based on legal error.” Id. (quoting Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1222 (9th Cir. 2009)).
1. Lubin claims the ALJ failed to provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of Lubin’s treating physician, Dr. Mechling.
See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (“[W]here the treating
doctor’s opinion is not contradicted by another doctor, it may be rejected only for
‘clear and convincing’ reasons.”). We agree. The ALJ rejected Dr. Mechling’s
assessment of Lubin’s mental health and mental residual functional capacity
because it was not supported by Dr. Mechling’s treatment notes and because Lubin
did not require or seek aggressive treatment.
First, Dr. Mechling’s opinion that Lubin was unfit for work due to major

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depression and acute anxiety, and her assessment of Lubin’s mental residual
functional capacity, are well documented in her notes. Between January 2005 and
December 2006, Dr. Mechling diagnosed Lubin with major depression, atypical
depression, and acute anxiety. She prescribed numerous anti-anxiety and anti-
depression medications. After years of treating Lubin for anxiety, depression, and
stress, Dr. Mechling completed a mental residual functional capacity assessment
and found Lubin moderately-to-markedly limited in almost all areas. As the
physician who treated Lubin for depression and anxiety, Dr. Mechling was
especially qualified to determine Lubin’s mental functional capacity and
limitations. See Lester, 81 F.3d at 833 (“The treating physician’s continuing
relationship with the claimant makes him [or her] especially qualified . . . to form
an overall conclusion as to functional capacities and limitations, as well as to
prescribe or approve the overall course of treatment.”).
Second, Lubin sought treatment from Dr. Mechling, but he was unable to
afford additional therapy. Lubin’s failure to seek treatment because of an inability
to afford it is not a clear and convincing reason to reject Dr. Mechling’s
assessments. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
Finally, although Lubin did not seek emergency intervention for his ongoing
depression and anxiety, he frequently sought help from Dr. Mechling. Despite the

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number of medications he was taking and his frequent visits to Dr. Mechling,
Lubin continued to experience frequent, recurrent, and debilitating bouts of anxiety
and depression.
Thus, the ALJ’s reasons for rejecting Dr. Mechling’s opinion were not clear
and convincing.
2. The ALJ also erred in rejecting the uncontradicted opinion of Dr. Shields,
Lubin’s examining psychologist, without giving clear and convincing reasons. See
Lester, 81 F.3d at 830. The ALJ rejected Dr. Shields’s assessment because it: (1)
was based on Lubin’s subjective reports that the ALJ found unreliable; (2) lacked
objective support from a treating psychologist or psychiatrist; and (3) was
inconsistent with the observations documented by the disability investigators.
First, questioning the credibility of Lubin’s complaints is not a clear and
convincing reason to reject Dr. Shields’s opinion. See Ryan v. Comm’r of Soc.
Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) (“[A]n ALJ does not provide clear
and convincing reasons for rejecting an examining physician’s opinion by
questioning the credibility of the patient’s complaints where the doctor does not
discredit those complaints and supports his ultimate opinion with his own
observations.”). Dr. Shields, a licensed psychologist, found Lubin credible, and
nothing in the record suggests that Dr. Shields relied on Lubin’s subjective

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complaints more heavily than on his own clinical observations in reaching the
conclusion that Lubin exhibited “a severe level of depression and anxiety;” was
unable to maintain persistence and pace for 8 hours a day, 5 days a week; and had
problems with concentration.
Second, as a licensed psychologist, Dr. Shields is an “acceptable medical
source[]” within the meaning of 20 C.F.R. § 416.913(a); a treating psychologist is
not necessary to establish disability. Moreover, Dr. Shields’s opinion was
consistent with treating physician Dr. Mechling’s observations.
Finally, Dr. Shields’s medical opinion is given more weight than the brief
observations documented by the non-treating, non-examining, non-medical
disability investigators. See 20 C.F.R. §§ 404.1527, 416.927 (the opinion of an
acceptable medical source is given more weight than that of non-medical sources,
as defined in 20 C.F.R. §§ 404.1513(d), 416.913(d)).
Thus, the ALJ did not provide clear and convincing reasons for rejecting Dr.
Shields’s opinion.
3. Although the ALJ found that Lubin suffered moderate difficulties in
maintaining concentration, persistence, or pace, the ALJ erred by not including this
limitation in the residual functional capacity determination or in the hypothetical
question to the vocational expert. The ALJ must include all restrictions in the

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residual functional capacity determination and the hypothetical question posed to
the vocational expert, including moderate limitations in concentration, persistence,
or pace. 20 C.F.R. §§ 404.1545, 416.945; Magallanes v. Bowen, 881 F.2d 747,
756 (9th Cir. 1989).
Limiting Lubin “to one to three step tasks due to pain and prescription
drug/marijuana use” did not capture the limitation in concentration, persistence, or
pace found by the ALJ. The work described by the vocational expert may still
require the speed and concentration Lubin lacks. See Brink v. Comm’r Soc. Sec.
Admin., 343 Fed. Appx. 211, 212 (9th Cir. 2009) (unpublished). The hypothetical
question should have included Lubin’s moderate limitations in concentration,
persistence, or pace.
Because the ALJ’s hypothetical question to the vocational expert did not
reflect all of Lubin’s limitations, “the expert’s testimony has no evidentiary value
to support a finding that [Lubin] can perform jobs in the national economy.”
DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991).
4. Finally, the ALJ erred in rejecting Lubin’s wife’s lay witness testimony
without giving germane reasons for doing so. See Lewis v. Apfel, 236 F.3d 503,
511 (9th Cir. 2001) (“Lay testimony as to a claimant’s symptoms is competent
evidence that an ALJ must take into account, unless he or she expressly determines

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to disregard such testimony and gives reasons germane to each witness for doing
so.”). The ALJ did not reject Mrs. Lubin’s testimony; the ALJ referred to Mrs.
Lubin’s testimony only to discount Lubin’s testimony.
Nevertheless, the error was harmless because Mrs. Lubin’s testimony was
substantially, if not exactly, the same as Lubin’s. See Molina v. Astrue, 674 F.3d
1104, 1121-22 (9th Cir. 2012). On remand, however, we suggest the ALJ “tie the
reasoning of [the] credibility determinations to the particular witnesses whose
testimony [the ALJ] reject[s].” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 694 (9th Cir. 2009).
We reverse and remand to the district court with instructions to remand to
the ALJ for further proceedings consistent with this decision. We do not reach
Lubin’s other claims of error.
REVERSED and REMANDED for further proceedings.

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