Emily Attmore v. Carolyn Colvin , 827 F.3d 872 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILY ATTMORE, No. 13-36048
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-00704-HU
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted November 3, 2015
Portland, Oregon
Filed June 30, 2016
Before: Raymond C. Fisher, Marsha S. Berzon
and Paul J. Watford, Circuit Judges.
Opinion by Judge Fisher
2 ATTMORE V. COLVIN
SUMMARY*
Social Security
The panel reversed the district court’s summary judgment
in a Social Security case in which an administrative law judge
found in a single decision that a disability benefits claimant
was disabled for a closed period but had since medically
improved.
The panel held that in a closed period case, the ALJ
should compare the medical evidence used to determine that
the claimant was disabled with the medical evidence existing
at the time of asserted medical improvement. The panel held
that the ALJ in this case made the appropriate comparison,
but substantial evidence did not support the ALJ’s finding of
medical improvement. The panel remanded the case to the
district court with instructions to remand it to the ALJ to
calculate an award of benefits.
COUNSEL
Max Rae (argued), Salem, Oregon, for Plaintiff-Appellant.
Jeffrey Staples (argued) and Nancy A. Mishalanie, Assistant
Regional Counsel; David Morado, Regional Chief Counsel;
Social Security Administration, Office of the General
Counsel, Seattle, Washington; for Defendant-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ATTMORE V. COLVIN 3
OPINION
FISHER, Circuit Judge:
A Social Security disability benefits claimant is no longer
entitled to benefits when substantial evidence demonstrates
(1) “there has been any medical improvement in the
[claimant’s] impairment” and (2) the claimant “is now able to
engage in substantial gainful activity.” 42 U.S.C. § 423(f)(1).
To determine whether there has been medical improvement,
an administrative law judge (ALJ) must “compare the current
medical severity” of the claimant’s impairment to the medical
severity of the impairment “at the time of the most recent
favorable medical decision that [the claimant] w[as] disabled
or continued to be disabled.” 20 C.F.R. § 404.1594(b)(7).
This appeal addresses the question of how an ALJ should
determine whether medical improvement has occurred in so-
called “closed period” cases – i.e., where the ALJ finds in a
single decision that the claimant was disabled for a closed
period of time but has since medically improved.
We conclude that in closed period cases an ALJ should
compare the medical evidence used to determine that the
claimant was disabled with the medical evidence existing at
the time of asserted medical improvement. Although the ALJ
in this case made the appropriate comparison, substantial
evidence does not support the ALJ’s finding of medical
improvement. We therefore reverse the judgment and
remand with instructions to remand this case to the ALJ to
calculate an award of benefits.
4 ATTMORE V. COLVIN
I
This appeal concerns an ALJ’s award of social security
disability benefits to Emily Attmore, who applied for
disability benefits in October 2008. After the agency denied
Attmore’s claim for benefits, an ALJ held a hearing in July
2010 and determined that, due to her bipolar disorder,
Attmore was disabled as of April 15, 2007, but had medically
improved to the point she was no longer disabled beginning
on March 24, 2009. In making these findings, the ALJ
considered the following medical evidence.
Attmore was last gainfully employed on April 13, 2007,
when she quit her job after a series of breakdowns that
prevented her from getting out of bed. In 2008, she was
hospitalized three times because of her bipolar disorder. In
May, she was hospitalized for two weeks after a suicide
attempt during which she reported hearing voices and
hallucinating. Although she “initially did well” after her
release, she began to hallucinate and became restless after she
reduced her medications or stopped taking them altogether.
In August, she was hospitalized again for one week after
experiencing hallucinations and “extreme paranoia.” In
October, she experienced “situational problems related to [a]
significant other,” again went off her medications and
stopped sleeping, and was hospitalized a third time after she
was found wandering around and responding to voices in her
head. Upon her release one month later, Attmore began
seeing psychiatrist Dr. Robert M. Wolf, as well as one of her
former therapists.
Dr. Wolf’s treatment notes report mixed progress over the
next year. On November 10, 2008, for example, Attmore was
“struggling” and “expressing some paranoid ideas,” but two
ATTMORE V. COLVIN 5
weeks later said she was “doing well,” and Dr. Wolf reported
her mental state was “fairly stable.” Similarly, on February
13, 2009, though Attmore seemed “quite stable,” she reported
she had been “pretty depressed” for several weeks, exhibiting
“social isolation, sleeping a lot.” By March 5, she said she
was still “somewhat socially isolative,” but otherwise
“feeling much better,” and Dr. Wolf noted she was “actually
doing well.” On March 23 – the final day the ALJ found
Attmore was disabled – she again said she was “feeling pretty
well” with “no specific complaints,” but one week later she
told another therapist she had been “staying in her apartment
for [d]ays at a time, not leaving and not getting dressed.” She
experienced a gradual worsening of her symptoms from
August through October as she increasingly struggled with
depression.
Attmore’s progress in 2010 likewise was mixed. In
February, she began working with a clinical social worker
who agreed to drive her to appointments because she
“d[id]n’t feel comfortable riding public transportation.” On
February 26, Attmore told her new doctor she was “doing
well” and spoke of starting school, but continued to complain
of heightened anxiety when there were “other stresses in her
life.” Although she “endorse[d] satisfaction with her life” in
early March, by late March she said she was getting
depressed, and had another episode during which she heard
voices and slept for 19 hours. In April, her symptoms flared
up two more times, causing increased depression and poor
sleep for one week.
Based on this medical evidence, the ALJ determined
Attmore was disabled between April 15, 2007 and March 23,
2009. At issue here is the ALJ’s medical improvement
finding, which rested on two conclusions. The ALJ first
6 ATTMORE V. COLVIN
detailed Dr. Wolf’s treatment notes from March 23, 2009 and
concluded Attmore had “benefited from mental health
treatment and medication management and ha[d] experienced
gradual improvement in her symptoms.” The ALJ then cited
additional treatment notes and concluded Attmore had
“shown improvement in the area of social functioning.”
Based in part on the medical improvement finding, the ALJ
awarded Attmore benefits only for the closed period from
April 15, 2007 through March 23, 2009. After the Appeals
Council denied review, Attmore filed a civil action seeking
review of the ALJ’s decision, and the district court granted
summary judgment to the Commissioner. We have
jurisdiction over Attmore’s appeal under 28 U.S.C. § 1291and now reverse.
II
We review the district court’s decision sustaining the
ALJ’s denial of social security benefits de novo and can
reverse only if the ALJ’s findings are based on legal error or
are not supported by substantial evidence in the record. See
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).
Substantial evidence is “‘more than a mere scintilla,’ but may
be less than a preponderance.” Id. at 1110–11 (quoting
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)). If the evidence is “susceptible to more than
one rational interpretation,” we are required to affirm. Id. at
1111. We cannot affirm, however, “simply by isolating a
specific quantum of supporting evidence,” but “must consider
the record as a whole, weighing both evidence that supports
and evidence that detracts from the [Commissioner’s]
conclusion.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (citation omitted).
ATTMORE V. COLVIN 7
III
Attmore raises two challenges to the ALJ’s determination
that she medically improved as of March 24, 2009. First, she
contends the ALJ erred in making only a general comparison
of the medical evidence without reference to a specific point
in time. In her view, the ALJ was required to specifically
identify the dates being compared, and the ALJ’s failure to do
so was legal error. Second, Attmore argues that even if the
ALJ’s comparison were proper, substantial evidence does not
support a finding of medical improvement. We agree only
with her second contention.
A
We begin with Attmore’s argument that the ALJ failed to
make the appropriate comparison in determining she had
medically improved. Medical improvement is defined as
“any decrease in the medical severity” of a recipient’s
impairment, 20 C.F.R. § 404.1594(b)(1), and requires a
“comparison of prior and current medical evidence which
must show that there have been changes (improvement) in the
symptoms, signs or laboratory findings associated with that
impairment(s),” id. § 404.1594(c)(1). The Commissioner’s
regulations prescribe a specific baseline for this comparison:
an ALJ must “compare the . . . medical severity” of the
impairment(s) “present at the time of the most recent
favorable medical decision” – that is, when the claimant was
last found disabled or continued to be disabled – “to the
medical severity of that impairment(s)” at the time of the
comparison. Id. § 404.1594(b)(7).
Making this comparison is straightforward in ordinary
termination cases where the ALJ finds a claimant is disabled
8 ATTMORE V. COLVIN
(or continues to be disabled) in one decision and, in a later
decision, finds the claimant has medically improved. In those
cases, the “most recent favorable medical decision” is an
earlier decision, and the severity of the claimant’s impairment
at the time of that decision provides the relevant baseline for
comparison. Attmore’s case, however, is a so-called closed
period case, meaning the ALJ found – in the same decision –
that she had been disabled for a closed period of time and had
since medically improved. Because the ALJ made its
findings of disability and medical improvement in a single
decision, there was no “most recent favorable medical
decision” for comparison. The Commissioner’s regulations
have no direct application in these circumstances and thus do
not neatly prescribe an appropriate baseline.
We nevertheless agree with the parties that the thrust of
the Commissioner’s regulations applies in closed period
cases. Congress enacted the medical improvement standard
as a safeguard against the arbitrary termination of benefits.
See Pickett v. Bowen, 833 F.2d 288, 292 (11th Cir. 1987). As
other circuits have explained, Congress intended this
safeguard to apply to all claimants, including those who
receive benefits in closed period cases. See Waters v.
Barnhart, 276 F.3d 716, 719 (5th Cir. 2002) (holding the
medical improvement standard applies to closed period
cases); Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir.
1999) (same); Pickett, 833 F.2d at 291–92 (same); Chrupcala
v. Heckler, 829 F.2d 1269, 1274 (3d Cir. 1987) (same); see
also Jones v. Shalala, 10 F.3d 522, 523–24 (7th Cir. 1993)
(applying the medical improvement standard to a closed
period case). Accordingly, an ALJ should “engage[] in the
same decision-making process” in closed period cases as in
ordinary termination cases. Waters, 276 F.3d at 719.
ATTMORE V. COLVIN 9
What, then, is the appropriate baseline for comparison in
a closed period case? The regulations require a comparison
of “prior and current medical evidence,” 20 C.F.R.
§ 404.1594(c)(1), and define the “most recent favorable
medical decision” as “the latest decision involving a
consideration of the medical evidence and the issue of
whether [the claimant] w[as] disabled,” id. § 404.1594(b)(7).
In other words, the relevant baseline normally is the medical
evidence underlying the ALJ’s most recent disability
determination. For closed period cases, the analogous
baseline is the medical evidence used to determine the
claimant was disabled. We therefore hold that, in closed
period cases, the ALJ should compare the medical evidence
used to determine the claimant was disabled with the medical
evidence existing at the time of possible medical
improvement.1
We are satisfied the ALJ made the appropriate
comparison here. The ALJ made extensive findings that
1
The point is that medical improvement determinations require a
comparison of two distinct bodies of medical evidence. In closed period
cases, the body of evidence used to determine the claimant was disabled
may pertain to only the disability onset date, see, e.g., Shepherd, 184 F.3d
at 1202, or to the entire disability period, see Newbold v. Colvin, 718 F.3d
1257, 1260 (10th Cir. 2013). In the former scenario, courts have looked
to medical evidence pertaining to the disability onset date as the
appropriate baseline for comparison. See, e.g., Shepherd, 184 F.3d at
1202 (comparing the claimant’s symptoms from the disability onset date
to those on the date of medical improvement). In the latter scenario, the
Tenth Circuit has looked to medical evidence pertaining to the entire
disability period as the appropriate baseline for comparison. See Newbold,
718 F.3d at 1264–65. Either way, we understand these cases as applying
the same rule we adopt here: an ALJ must compare the body of medical
evidence as of the date of possible medical improvement to that used to
determine the claimant was disabled.
10 ATTMORE V. COLVIN
Attmore was disabled from April 15, 2007 through March 23,
2009. The ALJ then found medical improvement as of March
24, 2009, noting Attmore had “benefited from mental health
treatment and medication management” and “experienced
gradual improvement in her symptoms.” As illustration, the
ALJ described in detail Attmore’s symptoms as of March 24
and pointed to evidence indicating she had “shown
improvement in the area of social functioning.” Attmore
faults the ALJ’s analysis for not specifically identifying the
baseline for comparison. But the ALJ’s references to
“improvement” implied a comparison to Attmore’s condition
during the disability period, which the ALJ had just
discussed. We can therefore draw the “specific and
legitimate inference[]” that the ALJ compared the medical
evidence from the date of possible improvement to the
medical evidence used to determine that Attmore was
disabled. Magallenes v. Bowen, 881 F.2d 747, 755 (9th Cir.
1989). There was no legal error.
B
Attmore next argues substantial evidence does not support
the ALJ’s finding of medical improvement. We agree.
Some evidence does support the ALJ’s conclusion that
Attmore had shown improvement in her symptoms and social
functioning. Dr. Wolf’s report from March 23, 2009 – which
the ALJ discussed in detail – assessed Attmore as “generally
doing well at this time” and noted she had “no specific
complaints.” Dr. Wolf also reported Attmore’s hygiene was
appropriate, her thought processes were organized and
spontaneous and there was no evidence of active psychosis.
Other treatment notes likewise demonstrate that – as the ALJ
observed – Attmore discussed the possibilities of vocational
ATTMORE V. COLVIN 11
rehabilitation and returning to school and was improving her
social relationships. Taken in isolation, the evidence on
which the ALJ relied suggests some medical improvement.
The ALJ was required, however, to examine this evidence
in the broader context of Attmore’s impairment. See Holohan
v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a
person who suffers from severe panic attacks, anxiety, and
depression makes some improvement does not mean that the
person’s impairments no longer seriously affect her . . . .”).
An ALJ cannot simply “pick out a few isolated instances of
improvement over a period of months or years” but must
interpret “reports of ‘improvement’ . . . with an understanding
of the patient’s overall well-being and the nature of her
symptoms.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir.
2014); see also Scott v. Astrue, 647 F.3d 734, 740 (7th Cir.
2011) (“[A]lthough Scott had improved with treatment, she
nevertheless continued to frequently experience bouts of
crying and feelings of paranoia. The ALJ was not permitted
to ‘cherry pick’ from those mixed results to support a denial
of benefits.”). In short, the examples an ALJ chooses “must
in fact constitute examples of a broader development.”
Garrison, 759 F.3d at 1018.
We conclude the examples on which the ALJ relied here
were not in fact indicative of a “broader development” in two
respects. First, the improvement the ALJ highlighted was
only temporary. It is the nature of bipolar disorder that
symptoms wax and wane over time. With respect to such
impairments, “[i]mprovement . . . that is only temporary will
not warrant a finding of medical improvement.” 20 C.F.R.
§ 404.1594(c)(3)(iv). Although the ALJ pointed to isolated
signs of improvement, the ALJ could not find medical
improvement on that basis unless the ups and the downs of
12 ATTMORE V. COLVIN
Attmore’s development showed sustained improvement. See
id. § 404.1594(b)(1) (Example 2).
Attmore’s improvement was not sustained. On March 30,
2009 – just one week after Dr. Wolf reported Attmore was
“generally doing well” – another therapist reported that
Attmore was “losing functioning ability” and said she “ha[d]
been staying in her apartment for [d]ays at a time, not leaving
and not getting dressed.” Although Attmore showed some
signs of progress in the following months, she said she was
“feeling increasingly depressed” in late April, and Dr. Wolf
noted she had “significant depressive and anxious themes” in
her speech. In July, she “could not sleep for about 3 days”
after a flare-up of her symptoms. Attmore then struggled
with depression for three months. As her depression
worsened in August to October, she betrayed “anxious and
depressive themes with some mild suicidal ideation” and
suffered “daily intrusive suicidal thoughts.”
Attmore continued to exhibit only temporary
improvement in 2010. For example, in March – at the time
when she was discussing vocational rehabilitation and school
– her symptoms again worsened. One week before the start
of school, Attmore was “getting depressed,” sleeping 12–13
hours per night and growing anxious. The day before school
began, Attmore reported experiencing “increased depression
and hearing voices on one occasion,” and sleeping for 19
straight hours. Attmore did feel “a bit better” after deciding
not to go to school, but over the next month she had two more
flare-ups, including one causing a week of poor sleep. Given
the frequency and persistent severity of these episodes, the
evidence compels the conclusion that there was no “broader
development” of sustained improvement underlying the
ALJ’s examples. Garrison, 759 F.3d at 1018.
ATTMORE V. COLVIN 13
Second, although the ALJ observed some “improvement
in the area of social functioning,” that improvement was quite
limited. Even during the disability period, Attmore had
discussed going back to school. That she did so during the
medical improvement period thus was not itself a sign of
improvement – especially because in neither period did she
follow through with her plans. Attmore also visited her father
during the asserted medical improvement period, but that visit
caused her depression to return along with a weeklong flare-
up of her symptoms. She later stopped communicating with
him entirely. Finally, despite improvement in other aspects
of social functioning, Attmore’s paranoia persisted, making
her unable to use public transportation.2 Throughout the
medical improvement period, Attmore continued to rely on
others in order to leave her house, including to run errands or
attend doctor’s appointments. If she had to take the bus
somewhere, she would ask a friend to go with her. Although
she did take the bus alone one time, that experience resulted
in yet another weeklong flare-up of symptoms after she felt
harassed at the bus stop. This aspect of Attmore’s social
functioning, in short, did not “in fact constitute examples of
a broader development.” Garrison, 759 F.3d at 1018
(concluding there was no sustained medical improvement
where “some symptoms came and went . . . , some symptoms
2
“[T]aking public transportation” is one of the “[a]ctivities of daily
living” the Commissioner considers in determining the severity of a
claimant’s impairment. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(1).
It also relates to a claimant’s social functioning. See id. § 12.00(C)(2)
(“Social functioning includes the ability to get along with others, such as
family members, friends, . . . or bus drivers.”). Attmore’s distrust of
strangers caused her to have panic attacks when she used public
transportation. The ALJ thus properly considered this factor as part of her
social functioning in determining the severity of her impairment during the
disability period.
14 ATTMORE V. COLVIN
persisted nearly the whole period . . . , and still other
symptoms appear to have remained a constant source of
impairment”).
We conclude the ALJ erroneously focused on only
temporary periods and isolated aspects of Attmore’s
improvement that were not representative of the continuing
severity of her symptoms. Because Attmore’s improvement
was not sustained and was considerably limited in scope, we
hold substantial evidence does not support the ALJ’s finding
of medical improvement.
CONCLUSION
The ALJ properly compared the medical evidence, but
erred in determining that Attmore had medically improved as
of March 24, 2009. We therefore reverse the judgment and
remand with instructions to the district court to remand to the
ALJ for the calculation and award of benefits.
REVERSED AND REMANDED.