Michelle Wake v. Commissioner of Social Security

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE WAKE,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
No. 10-35681
D.C. No. 2:09-cv-03036-JPH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding
Argued and Submitted June 10, 2011
Seattle, Washington
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.
Claimant-Appellant Michelle Wake appeals the district court’s decision
affirming the Commissioner of Social Security’s denial of her application for
supplemental security income benefits.
I. Claimant’s Credibility
FILED
DEC 14 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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If there is no evidence of malingering, an Administrative Law Judge (ALJ)
may only reject the claimant’s testimony about the severity of symptoms if he
gives “specific, clear and convincing reasons for the rejection.” Vasquez v. Astrue,
572 F.3d 586, 591 (9th Cir. 2009), as amended (citation and internal quotation
marks omitted). “The ALJ must specifically identify what testimony is credible
and what testimony undermines the claimant’s complaints. . . .” Valentine v.
Comm’r. of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (citation omitted).
The ALJ did not err by considering inconsistent statements about Wake’s
drinking history when assessing her credibility. See e.g. Verduzco v. Apfel, 188
F.3d 1087, 1090 (9th Cir. 1999); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
2002).
An ALJ may also normally rely upon a claimant’s noncompliance with
treatment to provide clear and convincing evidence for an adverse credibility
finding. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). The ALJ, however,
failed to “identify what testimony is not credible and what evidence undermines
the claimant’s complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998)
(citations omitted).
We also note that Ms. Wake has been diagnosed with bipolar disorder and
depression, and her failure to comply with treatment may represent a symptom of

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her illness. See Ngyuyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)
(“Appellant may have failed to seek psychiatric treatment for his mental condition,
but it is a questionable practice to chastise one with a mental impairment for the
exercise of poor judgment in seeking rehabilitation.”) (citation and alteration
omitted).
Thus, we remand this case to the ALJ to specifically delineate which
portions of Wake’s complaints and testimony are not credible. The ALJ should
explain how Wake’s credibility affected the disability and residual functional
capacity (RFC) findings. The ALJ should also consider what effect Wake’s mental
impairments have on her efforts to comply with her prescribed treatment regimen.
II. Consideration of Medical and Non-Medical Sources
Wake asserts that the ALJ erred by failing to consider the opinions of
Christopher Clark, MEd LMHC, a psychologist, and Martha Usatine, a social
worker, or in the alternative, not providing any reason for discrediting their
opinions.
The ALJ determined that if Wake ceased her substance abuse, she would
have the RFC to perform a full range of work at all exertional levels, albeit with
only superficial interaction with the public and coworkers. He relied on the
opinions of Dr. Joseph Vickers, who treated Wake on several occasions,

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psychologist Dr. Jay Toews, who evaluated Wake on one occasion, and Dr. Jerry
Gardner, who performed a consultative psychiatric review and a mental residual
functional capacity assessment. The ALJ was silent as to the weight he accorded
Clark’s and Usatine’s opinions.
“Where, as here, the record contains conflicting medical evidence, the ALJ
is charged with determining credibility and resolving the conflict. . . .” Benton ex
rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (citation omitted). “If
a treating or examining doctor’s opinion is contradicted by another doctor’s
opinion, an ALJ may only reject it by providing specific and legitimate reasons that
are supported by substantial evidence. . . .” Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005) (citation omitted).
Licensed physicians and psychologists are acceptable medical sources who
may establish a medically determinable impairment. See 20 C.F.R. §
404.1513(a)(1), (2). The medical opinions of “other sources” may be given less
weight than that of an acceptable medical source. Gomez v. Chater, 74 F.3d 967,
970-71 (9th Cir. 1996). Social workers are not “acceptable medical sources” under
the regulations. 20 C.F.R. § 404.1513(a), (d). An ALJ may disregard the opinion
of a social worker if he “gives reasons germane to each witness for doing so. . . .”

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Turner v. Comm’r. of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (citation
omitted).
The ALJ failed to provide specific, legitimate or germane reasons for
disregarding Clark and Usatine’s opinions addressing Wake’s long-term prognosis.
See Bayliss, 427 F.3d at 1216; Turner, 613 F.3d at 1224. Accordingly, we remand
this matter to the ALJ for an express determination of what weight, if any, should
be accorded these opinions.
III. Challenge to Drs. Toews’s and Gardner’s opinions
Wake contends that these opinions do not distinguish between her RFC with
and without her substance abuse limitations. However, Wake did not challenge
these opinions before the district court and, therefore, waived this argument on
appeal. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
VACATED AND REMANDED.

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