Veteranclaims’s Blog

August 3, 2010

Turner v. SSA, No. 09-35080, August 2, 2010

Filed under: Uncategorized — Tags: — veteranclaims @ 3:23 pm

The Dissent by Gould, Circuit Judge, is worth the read.

As noted in the News article, Judge Gould, who wrote the dissent, uses a wheelchair because of multiple sclerosis.

JAMES L. TURNER, ü No. 09-35080 Plaintiff-Appellant,
v. ý D.C. No. 6:07-cv-06158-HO
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted February 1, 2010*
Seattle, Washington
Filed August 2, 2010
Before: Pamela Ann Rymer, Ronald M. Gould and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge Gould
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Alan Stuart Graf, Alan Stuart Graf, PC, Summertown, Tennessee,
for the appellant.
Willy M. Le, Social Security Administration Office of the
General Counsel, Assistant Regional Counsel, Seattle, Washington,
for the appellee.

BYBEE, Circuit Judge:
James Turner appeals the district court’s grant of summary
judgment in favor of the Commissioner of Social Security
upholding a denial of Disability Insurance Benefits under
Title II of the Social Security Act. Turner contends that the
Administrative Law Judge (“ALJ”) did not give sufficient
weight to the opinion of one of his doctors, improperly discredited
his own testimony, and failed to adequately address
his Veteran Affairs (“VA”) disability rating. Because substantial
evidence supports the ALJ’s decision and the ALJ committed
no legal error, we affirm.

Turner suffers from post-traumatic stress disorder. In 2002,
he filed an application for Title II disability insurance bene-
fits, 42 U.S.C. §§ 416(i), 423(d), claiming that he was unable
to work on July 3, 1990, due to gunshot wounds, chronic back
pain, and post-traumatic stress disorder. Both parties agree
that Turner must show that he was disabled on or before
December 31, 1990, in order to qualify for benefits under
Title II of the Social Security Act.
In 1990, Turner was forty-four years old. During his service
in the Army, he sustained gunshot and shrapnel wounds
in Vietnam to his left arm, temple, foot, and leg. Between
1985 to 1992, Turner underwent several medical examinations
through the VA. In 1985, Dr. Heide, a psychiatrist,
examined Turner and diagnosed him with probable posttraumatic
stress disorder. According to Dr. Heide, Turner
avoided the subject of Vietnam, expressed that he felt paranoia
in crowds, and stated that he was easily startled by loud
noises, but denied feeling depressed, sad, or hopeless. Dr.
Heide reported that Turner was pleasant and cooperative and
opined that Turner’s functional ability was fair. In 1986, Dr.
Aflatooni, a psychiatrist, examined Turner and diagnosed him
with post-traumatic stress disorder and atypical depression.
Turner reported that he experienced nightmares and flashbacks
about Vietnam. He stated that he was depressed, angry,
forgetful, and uncertain about the future. Dr. Aflatooni
reported that Turner was cooperative and pleasant, showed no
anxiety or irritability, made eye contact, and was fairly well
oriented to time, place, and person.
In 1990, Dr. Koogler, also with the VA, administered a
psychiatric examination to Turner. During the examination,
Turner reported that he had daily thoughts about Vietnam and
some flashbacks triggered by helicopters, but reported no
nightmares. Turner explained that he had difficulty concentrating,
did not read, avoided crowds, slept sporadically, and
disliked unexpected noises. He expressed paranoia about the
government and losing his compensation. Dr. Koogler


observed that Turner was oriented, had a normal intellect, and
displayed good judgment. At the end of the report, Dr.
Koogler included a “summary,” in which he stated that Turner
was disabled from a back injury and suffered from posttraumatic
stress disorder and depression. Dr. Koogler noted
that Turner had maintained himself “without severe problems
with his [post-traumatic stress disorder] by isolating himself
from society and living out in the country.”
In 1992, two years after the time relevant for Turner’s disability
determination, Dr. Koogler examined Turner again and
noted that there had been no change in Turner’s mental status
since their last meeting. Dr. Koogler observed that Turner
“continue[d] to have a severe back problem[ ] and hobbles in
and out of his chair . . . .” Dr. Koogler noted that Turner had
not received treatment, but that he was in “good spirits and
fe[lt] like his anger [wa]s controlled because he [wa]s left
alone.” Later that year, John McFarland, a social worker,
examined Turner. McFarland noted that Turner chose to live
an isolated life, trading his labor on a ranch for lodging.
McFarland noted:
The veteran was somewhat guarded during this interview.
He states he feels that one result of this interview
would be that his compensation would be cut
off. . . . Regarding employability, the veteran is
doing just about all that he can do presently. He
would not be able to tolerate any employment which
required any sort of structure, answering to bosses,
or dealing with people.
Turner received VA disability ratings in 1987, 1997, and
2002. In 1987, the VA assigned a post-traumatic stress disorder
disability rating of thirty percent. This rating indicated
“occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning satisfactorily,
with routine behavior, self-care, and conversation


normal).” In 1997, the VA maintained the thirty percent rating.
In 2002, the VA raised Turner’s post-traumatic stress disability
rating to 100 percent and made it retroactive to the
year 1997.
In 2002, Turner filed with the Social Security Administration
for disability benefits due to his gunshot wounds, chronic
back pain, and post-traumatic stress disorder. At his hearings,1
Turner testified that he was disabled due to back pain and
post-traumatic stress disorder. He stated that he could only
walk a half mile at a time, sit fifteen to twenty minutes at a
time, and lift up to forty pounds. Turner testified that he “had
no mental problems” but that he did not trust anybody and
liked to be alone. He stated that he took Motrin for his back
pain, tried to avoid doctors, and obtained treatment only when
the VA called to see him. During a regular day, Turner performed
various household chores and work on the ranch, including feeding cattle, fixing holes in fences, and assisting in rounding and branding cattle.
At Turner’s second hearing, a medical expert, Dr. Crossen,
who had not personally examined Turner, but who had
reviewed his medical records and prior hearing transcripts,
confirmed that Turner had post-traumatic stress disorder and
depression. Dr. Crossen pointed to the fact that during the
time that Turner claimed to be unable to work, he successfully

1The Commissioner denied his original application, and Turner
requested a hearing. After a hearing in 2004, an ALJ determined that Turner was not disabled within the meaning of the Social Security Act. The Appeals Council denied Turner’s request for review, and Turner challenged the Commissioner’s determination in federal court. The parties agreed to remand Turner’s case because the ALJ failed to consider Turner’s VA disability rating. The district court granted the parties’ stipulated motion to remand Turner’s case for a new hearing. Turner’s testimony from both hearings was consolidated for purposes of his second disability determination, the determination currently on appeal.


lived by himself, responsibly cared for a ranch, and formed a
relationship that led to marriage. Dr. Crossen observed that
the record contained “little evidence” that Turner was completely
incapacitated besides Turner’s own subjective complaints.
Using the required five-step sequential framework for
determining whether a claimant is disabled, see 20 C.F.R.
§ 404.1520, the ALJ determined that Turner had not engaged
in substantial gainful activity since his alleged onset date, that
Turner had a severe impairment (namely, post-traumatic
stress disorder), and that the impairment did not meet or equal
the requirements of any listed impairment that would demonstrate
presumptive disability under 20 C.F.R. pt. 404, subpt.
P, app.1.
The ALJ then found that Turner had the residual
functional capacity to work at any exertion level, but that he
would be limited to simple, repetitive tasks, require an environment
without a lot of background activity, not be able to
perform work involving public contact, and work best alone.
Using this residual functional capacity, a vocational expert
testified that an individual with Turner’s experience and background
could find jobs such as a cleaner, laundry sorter, or
folding machine operator in the national economy. Because
Turner could perform some jobs in the national economy, the
ALJ determined that Turner was not disabled under the Social
Security Act.
The Commissioner affirmed the ALJ’s decision,
and the district court granted summary judgment in favor of
the Commissioner. Turner timely appealed.
On appeal, Turner alleges that he is disabled solely due to
his post-traumatic stress disorder; he does not challenge the
ALJ’s rejection of his physical disability complaints. Turner
argues that the ALJ erred in determining his functional capacity
in three ways: (1) by not giving sufficient weight to Dr.
Koogler’s 1990 examination; (2) by rejecting Turner’s subjec-


tive complaints; (3) by inadequately addressing the disability
findings of the VA. We examine each in turn.2

[1] Turner first argues that the ALJ improperly rejected the
medical findings of his treating doctor, Dr. Koogler. “As a
general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not
treat the claimant. . . . [T]he Commissioner must provide clear
and convincing reasons for rejecting the uncontradicted opinion
of an examining physician. . . . [T]he opinion of an examining
doctor, even if contradicted by another doctor, can only
be rejected for specific and legitimate reasons . . . .” Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (quotation marks
Turner argues that Dr. Crossen’s opinion contradicted
Dr. Koogler’s report. It is not clear, however, that Dr.
Koogler actually concluded that Turner was disabled from
post-traumatic stress disorder, nor is it clear that Dr. Crossen
or the ALJ actually rejected Dr. Koogler’s report. What Dr.
Koogler said, in the briefest of summaries, was that Turner
was “disabled from a back injury he sustained in 1980.” But
the back injury is not the basis for Turner’s claim; he alleges
that he is disabled because of his post-traumatic stress disorder.
But with respect to post-traumatic stress disorder, Dr.
Koogler concluded only that “[t]he veteran has been able to
maintain himself without severe problems with his [posttraumatic
stress disorder] by isolating himself from society
and living out in the country.” At Turner’s hearing, Dr.
Crossen agreed that Turner had post-traumatic stress disorder,
was easily distracted, and had a startle response. Even with
2We must affirm the Commissioner’s final decision to deny benefits if
the decision is supported by substantial evidence and applies correct legal standards. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation marks omitted).


these limitations, Dr. Crossen could not find that the “little
evidence” in the record supported Turner’s claim that he was
disabled. Dr. Crossen testified that Dr. Koogler’s report did
not establish that Turner was disabled. Dr. Crossen stated, “I
think Dr. [Koogler’s] assessment and reasoning there is reasonable,
but as far as any evidence or anything that would
actually confirm that [Turner could not work], I don’t see
anything there. . . . There’s nothing there to say that he can’t
do . . . more than what he was doing.” The ALJ agreed that
Koogler’s report “d[id] not necessarily imply that the claimant
is incapacitated” by his post-traumatic stress disorder. As the
ALJ found, nothing in Dr. Koogler’s report “assign[ed] any
specific limitations on the claimant” or stated that Turner was
unable to work with “little interpersonal interaction.” Even if
Dr. Crossen’s testimony did not contradict Dr. Koogler’s
report, the ALJ did not need to provide “clear and convincing
reasons” for rejecting Dr. Koogler’s report because the ALJ
did not reject any of Dr. Koogler’s conclusions. The ALJ
incorporated Dr. Koogler’s observations into Turner’s residual
functional capacity.
[2] To the extent that Dr. Koogler’s evaluation could be
read to suggest that Turner was disabled and could not work,
the ALJ gave “specific and legitimate reasons,” Lester, 81
F.3d at 830-31, for rejecting that implication in favor of Dr.
Crossen’s testimony that the record did not support Turner’s
claim. The ALJ noted that Dr. Koogler’s opinion was “based
almost entirely on the claimant’s self-reporting.” Most of Dr.
Koogler’s evaluation recorded Turner’s report of his sleeping
patterns, anger, or startled responses, without any independent
analysis or diagnosis. In fact, Dr. Koogler assumed from the
outset, without offering his own diagnosis, that Turner suffered
from post-traumatic stress disorder. Other than observing
that Turner had a “startle response” when a telephone
rang, Dr. Koogler made no attempt to cite “objective findings
to substantiate” a claim that Turner would be unable to do
simple, repetitive tasks without a lot of background activity
and with no public contact. In addition, because Dr. Koogler


had “not had any previous interaction with the claimant,” the
ALJ found that Koogler “was in a poor position to assess the
claimant’s statements.” The ALJ concluded that Dr.
Koogler’s report did “little to assist the claimant in establishing
that he is disabled for Social Security purposes.” On this
record, the ALJ reasonably rejected Dr. Koogler’s evaluation
to the extent that it implied that Turner could not perform
simple, repetitive tasks in an environment without public contact
or background activity.
Although the ALJ rejected any implication in Dr. Koogler’s
evaluation that Turner was disabled, he did incorporate Dr.
Koogler’s observations into his residual functional capacity
determination. The ALJ took into account Turner’s “marked
limitations in social functioning” by “limiting [him] to work
in which there is no public contact, and where it is recognized
that he works best alone.” The ALJ observed that Turner
could “not . . . perform complex work,” but should be “limited
to simple and routine work.” In particular, “[h]is hypervigilance
and startle reflex . . . limit[ ] him to work without
significant background activity.” These limitations were
entirely consistent with Dr. Koogler’s limitation.
[3] Turner also argues that John McFarland’s 1992 report
supports his claim that the ALJ improperly discredited Dr.
Koogler’s evaluation. McFarland concluded that Turner
“would not be able to tolerate any employment which
required any sort of structure, answering to bosses, or dealing
with people.” Although we explained why Dr. Koogler’s evaluation
does not conclude that Turner was disabled, we also
think McFarland’s report does not establish that Turner was
incapacitated. First, as a social worker, McFarland is not considered
an “acceptable medical source[ ]” under the regulations.
20 C.F.R. § 404.1513(a), (d). The regulations treat
“[p]ublic and private social welfare agency personnel” as
“other sources,” 20 C.F.R. § 404.1513(d)(3), and the ALJ
may expressly disregard lay testimony if the ALJ “gives reasons
germane to each witness for doing so.” Lewis v. Apfel,


236 F.3d 503, 511 (9th Cir. 2001). Here, the ALJ’s determination
that Dr. Koogler’s examination was the only examination
during the “actual period at issue, between the alleged onset
date of July 3, 1990, and the date last insured of December
31, 1990” was a germane reason for not addressing McFarland’s
1992 opinion that Turner was unable to work with
structure or answer to bosses. Second, McFarland gave no
support for his broad claim that Turner could not work.
McFarland wrote that Turner had nightmares, that he did not
like crowds, and that he felt “on guard at night” because he
feared intruders. But none of these factors support McFarland’s
opinion that Turner “would not be able to tolerate any
employment.” On the contrary, McFarland’s evaluation
revealed confidence in Turner’s ability to function on the
ranch and noted that Turner did “quite a lot of work around
the ranch” and obtained supplies from the town every two
weeks. Third, McFarland is the only person who opined that
Turner was completely unable to work and he did so outside
the relevant time period. Although the VA doctors who interviewed
Turner concluded that he suffered from post-traumatic
stress disorder, none of the doctors indicated that Turner was
unable to work because of this diagnosis. The ALJ did not err
in disregarding McFarland’s report.
[4] In sum, there is no evidence in the record from an
appropriate medical source during the relevant time period
that refutes the ALJ’s determination that Turner, even with
post-traumatic stress disorder, was capable of performing simple,
repetitive tasks in an environment where he could work
alone and without public contact.
[5] Turner next argues that the ALJ improperly rejected his
alleged mental complaints, particularly his need to be isolated
from other people.3 But Turner never claimed that he was
3In order for the ALJ to find Turner’s testimony unreliable, the ALJ
must make “a credibility determination with findings sufficiently specific


incapacitated by his need to be alone. He testified at his hearing
that he did not have friends, avoided everybody, and did
not “put up” with “most people.” Sensitive to Turner’s complaints,
the ALJ determined that Turner would work best alone and could not work with the public. The vocational expert took these limitations into account when she testified about the kinds of jobs available to Turner in the national economy.
[6] Moreover, the ALJ provided several cogent reasons for
rejecting Turner’s claim that he could not “put up” with “most
people” and his suggestion that this limitation left him unable
to work. The ALJ noted that Drs. Heide and Aflatooni both
found him to be cooperative and pleasant. Turner told Dr.
Koogler that he had been able to develop control over his
anger. In addition, the ALJ stated that Turner’s “residence on
the ranch . . . reflects the confidence that others have in him
to perform tasks” and that he adequately dealt with people
when he went into town to obtain supplies or to the VA for
examinations. The ALJ also noted that Turner was capable of
developing a personal relationship during this time that
resulted in marriage. Although Turner preferred to isolate
himself, the ALJ did not improperly discredit Turner’s subjective
[7] The ALJ also found that Turner was not entirely credible
because he had made exaggerated statements about the
intensity and persistence of his physical impairments. During
his hearings and on his disability application, Turner stated
that his back pain limited his ability to stand, sit, and walk,

to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In weighing a claimant’s credibility, the ALJ may consider “ordinary techniques of credibility evaluation, such as . . . prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid, . . . and . . . the claimant’s daily activities.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).


but then described that his work on the ranch involved building
fences, running a tractor, feeding cattle, and laying irrigation
Because of this discrepancy in his testimony,
the ALJ found that Turner could not be “found to be wholly
credible regarding any allegation of total disability.” The ALJ
properly rejected Turner’s implication that he was disabled
because he could not “put up” with most people.

[8] Finally, Turner argues that the ALJ did not give proper
weight to Turner’s VA disability rating. Because social security
disability and VA disability programs “serve the same
governmental purpose—providing benefits to those unable to
work because of a serious disability,” the ALJ must give
“great weight to a VA determination of disability.” McCartey
v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). An ALJ,
however, “may give less weight to a VA disability rating if he
gives persuasive, specific, valid reasons for doing so that are
supported by the record.” Id.
[9] Here, the ALJ did not fail to give Turner’s VA disability
rating proper weight. At the time relevant to Turner’s
claim, the VA had given Turner a thirty percent disability rating.
According to the VA, a disability rating of thirty percent
is granted whenever there is occupational and social
impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform
occupational tasks (although generally
functioning satisfactorily, with routine behavior,
self-care, and conversation normal) . . . .
Turner’s residual functional capacity reflected a similar
degree of impairment, stating that he could only perform simple,
repetitive tasks, without a lot of background activity, and
could have no contact with the public. The ALJ concluded,
“[t]he claimant’s primary issue, post-traumatic stress disorder,


is not shown to have been disabling in the period through
1990. This is reflected in the VA’s refusal to find it more than
30% disabling at the time.”4 In sum, the ALJ did not reject the
VA’s partial disability finding for the relevant period, but
incorporated that finding into Turner’s overall residual functional

Because the ALJ did not err in determining Turner’s residual
functional capacity, Dr. Koogler’s report did not establish
that Turner was unable to work, the ALJ offered specific,
cogent reasons for rejecting Turner’s subjective assessment of
his inability to work, and the ALJ gave proper weight to the
VA disability rating, we affirm the judgment of the district

GOULD, Circuit Judge, dissenting:
Nobody disputes the Department of Veterans Affairs’ (“VA”) assessment, nor is it directly at issue, that as of 1997
Turner has been completely disabled by PTSD. And nobody
disputes the ALJ’s correct conclusion that Turner was
severely impaired by PTSD on or before his date last insured
(“DLI”), December 31, 1990. The only issue in this appeal is
whether Turner’s severe PTSD-related impairments became
disabling, as that term is understood in the context of eligibility
for social security disability insurance benefits, before
December 31, 1990.
If so, Turner is entitled to disability
insurance benefits. The ALJ erred in deciding this issue by
not giving clear and convincing reasons for rejecting Dr.
4The VA did not find Turner 100 percent disabled until 2002, retroactive to 1997, which is still seven years after the relevant disability period.


Koogler’s uncontradicted PTSD opinion and by not considering
evidence probative of the severity of Turner’s debilitating
PTSD. I would reverse and remand the matter for an award
of benefits.
Turner’s PTSD stems from trauma he endured while serving
our country in Vietnam. Commentators recently described
the features of the Vietnam War that increased the prevalence
of PTSD among its returning veterans as follows:
[T]he war presented the American military with a
relatively new kind of warfare—guerrilla warfare.
The very nature of guerrilla warfare expands the
number of combatants placed in danger, encompassing
both soldiers directly involved in the fighting and
those working in what had traditionally been a relatively
removed and safe logistical capacity. During
the Vietnam War, there were no front and rear lines;
the combat zone came to surround the soldiers virtually
anywhere they were in that country at all times.
Furthermore, because combatants are not clearly
identified in this type of warfare, soldiers found it
difficult to know who was friend or foe. For example,
Vietnamese “civilians” could turn out to be Viet
Cong operatives. Hence, many soldiers assumed a
hypervigilant or “survivor mode” state of mind in
which they attempted to be constantly aware of their
surrounding environment in order to anticipate and
react to potential attacks and life-threats. Unfortunately,
many times this mode did not “turn off”
when the soldiers returned home. As a result, many
veterans manifested enduring psychological problems
after returning to civilian life.
Thomas L. Hafemeister & Nicole A. Stockey, Last Stand?
The Criminal Responsibility of War Veterans Returning From
Iraq and Afghanistan with Posttraumatic Stress Disorder, 85
Ind. L.J. 87, 99-100 (2010) (footnotes omitted).


Turner’s combat experience in Vietnam exposed him to terrible
things that most civilians could never imagine. Turner’s
duties in Vietnam included, among other things, serving as a
so-called tunnel rat. A tunnel rat’s job was to descend into a
Viet Cong tunnel—typically equipped with only a pistol,
knife, and flashlight—and clear hostile forces from within the
tunnel. See 1 Encyclopedia of the Vietnam War: A Political,
Social, and Military History 141 (Spencer C. Tucker ed.,
1998). Because of the “physically and psychologically draining”
nature of this work, “most tunnel rats served relatively
short periods.” Id. Turner recalls two events in particular that
still haunt him. First, Turner and his platoon discovered the
remains of seven American soldiers who had been skinned
alive a week earlier. Second, Turner watched a helicopter
crash, killing all aboard, while Turner’s own helicopter was
taking fire. Also, Turner was not personally spared from the
violence of the war. His military medical records show that he
was hospitalized and underwent skin-graft surgery for missile
and bullet wounds that he sustained during a firefight with
hostile forces. It is beyond dispute that these experiences
demonstrate Turner’s “direct personal experience of an event
that involves actual or threatened death or serious injury.” See
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 463 (4th ed., text rev. 2000)
(“DSM-IV-TR”) (stating that this “essential feature” of PTSD
may arise from military combat).1
1Given the gruesome shocks that follow in the train of war, it is not surprising
that our young men and women returning from Vietnam have such
a high incidence of PTSD. One congressional study concluded that 30.6%
of male Vietnam veterans have PTSD at some point during their lives, and
15.2% of male veterans were still plagued by full-blown PTSD ten years
after the Vietnam War ended. See Richard A. Kulka et al., Trauma and the
Vietnam War Generation: Report of Findings from the National Vietnam
Veterans Readjustment Study xxiii, xxvii (1990). Male veterans with high
levels of war-zone exposure, as might be said about Turner, are still more
likely to continue to suffer from full-blown PTSD. United States Department of Veterans Affairs, Findings from the National Vietnam Veterans’ Readjustment Study, (last visited June 2, 2010) (“Those with high levels of warzone exposure had significantly higher rates, with 35.8% of men and 17.5% of women meeting criteria for current PTSD.”).


Dr. Koogler was an examining doctor for Turner. Prior to
the DLI, Dr. Koogler described without equivocation that
Turner employed in civilian life the isolating hypervigilance
and distrustfulness that Turner and other soldiers relied on to
survive in Vietnam, even though these trained responses are
preventing Turner’s successful reintegration into civilian life.
Upon returning to his home after being gone for a period of
time, Turner surveys his property for tire tracks and footprints,
and checks his house thoroughly. Dr. Koogler also
noted that Turner is “suspicious of anyone carrying a gun”
because “he feels like they are a potential enemy, and this is
particularly true of the police department.” Turner thinks
about Vietnam daily and the sound of a helicopter triggers
flashbacks. This should be an obvious red flag for urban life
where the sound of helicopter traffic is not uncommon. Turner
became “involved as little as possible[ ] with people.” It is
within this context that Dr. Koogler diagnosed Turner with
PTSD and opined that Turner “has been able to maintain himself
without severe problems with his PTSD by isolating himself
from society and living out in the country.” The logical
and necessary inference from Dr. Koogler’s opinion is that
Turner would not be able to maintain himself in an ordinary
work environment where he must interact and coordinate with
other people.
Because Dr. Koogler’s opinion was uncontradicted, the
ALJ erred by not providing clear and convincing reasons for
rejecting Dr. Koogler’s opinion. See Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995) (“[T]he Commissioner must provide
‘clear and convincing’ reasons for rejecting the uncontradicted
opinion of an examining physician.”).
The ALJ relied
on Dr. Crossen’s hearing testimony, stating, “As Dr. Crossen
pointed out, Dr. Koogler’s report does not necessarily imply
that the claimant is incapacitated by PTSD.” The ALJ misapprehended Dr. Crossen’s view. Dr. Crossen concluded that
Turner’s impairments were “at least moderate and maybe
severe.” Dr. Crossen did not disagree with Dr. Koogler’s
opinion. Instead, Dr. Crossen stated, “I don’t see any reason


to say [Dr. Koogler’s] opinion is wrong, but on the other hand
there’s not a whole lot here to say that it’s right except that,
you know, it’s just an opinion.”Dr. Crossen’s view, which at
worst from Turner’s perspective is equivocal, is not a clear
and convincing reason to reject Dr. Koogler’s explicit opinion
that Turner’s problems with severe PTSD can only be avoided
by isolation. See id. at 831 (“The opinion of a nonexamining
physician cannot by itself constitute substantial evidence that
justifies the rejection of the opinion of either an examining
physician or a treating physician.”).

The ALJ’s incorrect conclusions that Dr. Koogler’s opinion
was based almost entirely on Turner’s self-reports and that
Dr. Koogler did not cite objective findings that support Turner’s
disability from PTSD similarly are not clear and convincing
reasons for rejecting the opinion. Dr. Koogler noted
many aspects of his assessment, not generated by Turner’s
own complaints, that led to his view of Turner’s PTSD. For
example, Dr. Koogler noted Turner’s “severe startle
response,” that Turner “jumps clear out of his chair” when the
phone rings in Dr. Koogler’s office, that Turner “has severe
difficulty concentrating,” and that Turner “has an extreme
restricted affect throughout the whole interview and does not
display much in the way of emotion, except for a startle
response with the unexpected noise.”
See DSM-IV-TR 464
(stating that PTSD’s symptoms include “hypervigilance,”
“exaggerated startle response,” “difficulty concentrating,”
“[d]iminished responsiveness,” “persistent symptoms of anxiety,”
and “markedly reduced ability to feel emotions”). The
ALJ ignored the value that these objective clinical finding
have in supporting Dr. Koogler’s conclusion that Turner
requires rural isolation from society to cope with his severe
See id. (stating that those with PTSD “commonly
make[ ] deliberate efforts . . . to avoid activities, situations, or
people” that might trigger flashbacks or intrusive recollections
of traumatic events). Instead, the ALJ, in determining
Turner’s residual functional capacity, cleared Turner “to perform
work at any exertion level.” Although the ALJ professed


to limit Turner to “simple and routine work” in an environment
where there was not “a lot of background activity” and
“no contact with the public,” even these limitations do not
account for Dr. Koogler’s conclusion that Turner needs to be
isolated from society and live out in the country just to maintain

Moreover, it is not as if Turner’s story of his PTSD is not
supported by witnesses. To the contrary, and in a real sense,
each day that Turner lives in an isolated area, bereft of the
normal incidents of companionship that attend urban life and
most jobs, stands as a silent confirming witness attesting to
Turner’s real difficulties. Why else would he live in the middle
of nowhere? Why else would he be in large part a lone
wolf, hypervigilant against imagined dangers?

The ALJ’s erroneous conclusion that Turner’s PTSD “is
not shown to have been disabling in the period through [the
DLI]” ignored not only Dr. Koogler’s opinion but additional
relevant evidence post-dating Turner’s DLI that should have
been considered. In 1992, within two years of the DLI, social
worker John McFarland opined that Turner “would not be
able to tolerate any employment which required any sort of
structure, answering to bosses, or dealing with people” and,
“[r]egarding employability, the veteran is doing just about all
that he can do presently.” The VA also determined that Turner
was 100% disabled as of 1997. The ALJ did not consider
this evidence. While the ALJ must consider only impairments
(and limitations and restrictions therefrom) that Turner had
prior to the DLI, evidence post-dating the DLI is probative of
Turner’s pre-DLI disability. See Smith v. Bowen, 849 F.2d
1222, 1225 (9th Cir. 1988) (“[M]edical evaluations made after
the expiration of a claimant’s insured status are relevant to an
evaluation of the pre-expiration condition.”).
Because the ALJ
recognized that Turner’s “activities and reported symptoms
ha[d] not really changed over the years,” McFarland’s assessment
and the VA’s subsequent 100% disability-rating were
especially probative of the disabling nature of Turner’s PTSD


before the DLI and therefore should have been considered by
the ALJ.
In sum, Turner is the real deal—a decorated Vietnam veteran
with two purple hearts who had a hard time of it over
there, fighting an often unseen enemy, and who, back here,
has a hard time of it getting his entitlement from the Social
Security Administration. He has continuing problems that prevent
him from engaging in substantial gainful employment.
Yet the Social Security Administration is deaf and blind to
this. Contrary to the ALJ’s conclusion that Turner could work
as a cleaner, laundry sorter, or folding-machine operator, Turner
would be at risk of harming both himself and others if
thrust from his beneficial isolation. Living apart in a rural area
is a benignant circumstance for Turner. We cannot solve Turner’s
problems nor can we cure his PTSD. But the social
security benefits to which Turner is entitled—and for which
he applied almost eight years ago—might spell the difference
between a life with some semblance of dignity and independence,
and an alternative with inadequate funds to meet basic
I believe that these benefits are his entitlement, they
are not an act of welfare, not an act of grace. They are merely
and surely his due. I would therefore reverse and remand this
case for an award of benefits. See Smolen v. Chater, 80 F.3d
1273, 1292 (9th Cir. 1996) (reversing and remanding for an
award of benefits where “a finding of disability is clearly
required” and “[the claimant] has already waited over seven
years . . . and additional proceedings would only delay her
receipt of benefits”).


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