Andersen v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 18, 2022
• Docket: 3:21-cv-05393
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SCOTT A., CASE NO. 3:21-cv-05393-JRC 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 17 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local 18 Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate 19 Judge, Dkt. 2. This matter has been fully briefed. See Dkts. 16, 23, 24. 20 Plaintiff, who alleges that he is disabled due to physical and mental impairments, 21 including depression, anxiety, and personality disorder, challenges the Administrative Law 22 Judge’s (“ALJ”) evaluation of two opinions from examining psychologist, Dr. Wheeler. Plaintiff 23 requests that the Court remand this case for an award of benefits. 24 1 The Court concludes that the ALJ erred in evaluating Dr. Wheeler’s opinions that 2 plaintiff would have a number of work-related limitations, including that he would be markedly 3 limited in his abilities to maintain work attendance and to complete a normal workday and 4 workweek without interruption from his symptoms. In rejecting these opinions, the ALJ

5 overlooked Dr. Wheeler’s objective clinical findings supporting her opinions and erroneously 6 concluded that Dr. Wheeler relied on plaintiff’s subjective complaints in finding that plaintiff has 7 significant work-related limitations. The ALJ further erred by finding—without explanation— 8 that plaintiff’s daily activities are inconsistent with Dr. Wheeler’s opined limitations, despite that 9 Dr. Wheeler was aware of and considered the same activities in rendering her opinions. 10 The ALJ’s errors were not harmless, and crediting Dr. Wheeler’s opinions as true, the 11 ALJ would be required to find plaintiff disabled on remand. Therefore, remanding this case for 12 the ALJ to reevaluate the evidence would serve no useful purpose. Accordingly, remand for 13 award of benefits is the appropriate remedy. 14 PROCEDURAL HISTORY

15 Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant to 42 16 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following 17 reconsideration. See AR 64. Plaintiff’s requested hearing was held before ALJ Lawrence Lee 18 on August 4, 2020. See AR 64. On September 23, 2020, the ALJ issued a written decision in 19 which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See 20 AR 64–82. 21 On April 8, 2021, the Appeals Council denied plaintiff’s request for review, making the 22 written decision by the ALJ the final agency decision subject to judicial review. AR 1; see 20 23 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ’s

24 1 written decision in May 2021. See Dkts. 1, 5. Defendant filed the sealed administrative record 2 (“AR”) regarding this matter on October 5, 2021. See Dkt. 14. 3 BACKGROUND 4 Plaintiff, Scott A., was born in 1980 and was 38 years old on the alleged date of disability

5 onset of July 12, 2018. See AR 64, 80. Plaintiff obtained his GED, and his prior work history 6 includes work as a restaurant waiter and busser. See AR 94, 99. Plaintiff states that he stopped 7 working due to his conditions. See AR 309. 8 According to the ALJ, plaintiff has at least the severe impairments of congestive heart 9 failure, depression, anxiety, personality disorder, cannabis abuse, and history of alcohol and 10 methamphetamine abuse in sustained full remission. AR 66. 11 STANDARD OF REVIEW 12 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 13 social security benefits if the ALJ’s findings are based on legal error or not supported by 14 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th

15 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 16 DISCUSSION 17 Plaintiff argues that the ALJ erred in evaluating the medical opinions of an examining 18 psychologist, Dr. Wheeler. See Dkt. 16, at 5–12. Finding this issue dispositive, the Court 19 declines to address plaintiff’s remaining arguments. 20 I. Evaluation of Medical Opinion Evidence 21 A. Medical Opinion Standard of Review 22 For cases filed on or after March 27, 2017, the Administration has directed ALJs that 23 they are no longer to defer to medical opinions from treating or examining sources (see 20

24 1 C.F.R. §§ 404.1527(c)), instead evaluating the persuasiveness of medical opinions by analyzing 2 their “supportability” and “consistency,” as well as other appropriate factors. 20 C.F.R. § 3 404.1520c(a). 4 As this Court has previously concluded, the post-March 2017 regulations supplant

5 judicial precedent regarding the weight given to controverted examining and treating medical 6 opinions, to the extent that there is any conflict. See Dkt. 20, Mooney v. Comm’r of Soc. Sec., 7 3:19-cv-05103-RBL-JRC (W.D. Wash. Feb 14, 2020) (report and recommendation adopted 8 March 9, 2020); Dkt. 15, Martinson v. Comm’r of Soc. Sec., 3:20-cv-05149-JRC (W.D. Wash. 9 August 25, 2020). 10 The parties do not challenge that the revised regulations apply. See Dkts. 16, at 8; 23, at 11 4. Based on the analysis above, the Court reviews solely whether the ALJ’s decision is 12 supported by substantial evidence and is free from legal error. See Lambert v. Saul, 980 F.3d 13 1266, 1277 (9th Cir. 2020). That is, the ALJ “must provide sufficient reasoning that allows us to 14 perform our own review, because the grounds upon which an administrative order must be

15 judged are those upon which the record discloses that its action was based.” Id. (internal 16 citations and quotations omitted). 17 B. Dr. Wheeler’s 2019 and 2020 Opinions 18 Kimberly Wheeler, Ph.D. examined and evaluated plaintiff on two occasions: in March 19 2019 and May 2020. See AR 1251–55, 1616–20. Dr. Wheeler’s March 2019 examination 20 consisted of a clinical interview, mental status examination (“MSE”), and review of plaintiff’s 21 health records, including treatment records and a prior psychological evaluation from 2015. AR 22 1251–55. Based on her examination, Dr. Wheeler diagnosed plaintiff with major depressive 23 disorder, social anxiety with some generalized anxiety disorder elements, methamphetamine use

24 1 disorder in sustained full remission, and alcohol use disorder in sustained full remission. AR 2 1252. Dr. Wheeler opined that plaintiff would have a number of mild to marked limitations on 3 his abilities to perform work activities, including that plaintiff would be markedly limited in his 4 abilities to maintain regular attendance and be punctual within customary tolerances and to

5 complete a normal workday and workweek without interruptions from his symptoms. See AR 6 1253. 7 In May 2020, Dr. Wheeler examined plaintiff a second time. See AR 1616–20. Dr. 8 Wheeler’s second examination consisted of a clinical interview, MSE, review of Washington 9 State Department of Social and Health Services (“DSHS”) case notes, and review of Dr. 10 Wheeler’s March 2019 evaluation. See id. Based on her second evaluation, Dr. Wheeler 11 diagnosed plaintiff other specified personality disorder (mixed avoidant, dependent traits), social 12 anxiety with generalized anxiety disorder elements, unspecified depressive disorder, alcohol use 13 disorder in sustained remission, and methamphetamine use disorder in sustained remission. AR 14 1618. Dr. Wheeler again opined that plaintiff would have a number of mild to marked functional

15 limitations, with an overall severity rating of “marked” based on the combined impact of all 16 diagnosed mental impairments. See id. 17 Addressing both opinions together, the ALJ found that Dr. Wheeler’s opinions were “not 18 persuasive” because (1) they are inconsistent with the overall medical evidence of record; (2) Dr. 19 Wheeler relied on plaintiff’s subjective complaints in assessing his functioning; (3) the opinions 20 are inconsistent with plaintiff’s daily activities; (4) the opinions are inconsistent with plaintiff’s 21 minimal treatment history and his conditions are “stable” on a medication regimen; (5) the 22 opinions are not consistent with plaintiff’s performance during MSEs; and (6) Dr .Wheeler failed 23 to consider the effects of plaintiff’s marijuana use on his motivation and functioning. AR 78–79.

24 1 With respect to the first reason, the ALJ concluded—without explanation—that Dr. 2 Wheeler’s opinions are inconsistent with the overall medical evidence of record. AR 79. 3 “Consistency” with the record as a whole is an important factor that an ALJ must consider when 4 evaluating a medical opinion. 20 C.F.R. § 416.920c(b)(2), (c)(2). However, the ALJ must

5 “explain” how he considered “consistency” in evaluating a medical opinion. Id. at § 6 416.920c(b)(2). The ALJ’s failure to explain how Dr. Wheeler’s opinions are inconsistent with 7 the overall medical evidence of record runs afoul of 20 C.F.R. § 416.920c and is error. See id.; 8 see also Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require the ALJ to build an 9 accurate and logical bridge from the evidence to her conclusions so that we may afford the 10 claimant meaningful review of the SSA’s ultimate findings.”). 11 Next, the ALJ found that Dr. Wheeler “primarily relied” on plaintiff’s subjective 12 complaints in assessing the opined limitations, implying that Dr. Wheeler’s opinions are not 13 supported by objective medical evidence. AR 79. As with consistency, “supportability” is an 14 important factor in evaluating a medical opinion, and an ALJ must “articulate” how he

15 considered this factor in his written decision. 20 C.F.R. § 416.920c(a), (b)(2). 16 However, in this case, the ALJ appears to have overlooked objective evidence supporting 17 Dr. Wheeler’s opinions. For example, during plaintiff’s 2019 MSE, Dr. Wheeler observed that 18 plaintiff’s mood was anxious, his affect blunted, and that his concentration was not within 19 normal limits. See AR 1254–55 (also noting diffuse, vague and deflective speech; low energy 20 and misunderstanding of questions asked). Likewise, during the 2020 MSE, Dr. Wheeler 21 observed that plaintiff’s mood was “blah, bland,” his affect blunted, and that his memory, 22 concentration, and judgment and insight were not within normal limits. AR 1619–20 (also 23 noting plaintiff’s low energy, marginally cooperative attitude, and distraction during the

24 1 examination). These objective findings tend to support Dr. Wheeler’s opinions that plaintiff has 2 mood and functional symptoms that would limit his abilities to perform work activities. See 3 Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination 4 (Oxford 4 University Press 1993) (“Like the physical examination, the Mental Status Examination is

5 termed the objective portion of the patient evaluation.”). Thus, the ALJ’s conclusion that Dr. 6 Wheeler primarily relied on plaintiff’s subjective complaints in rendering her opinions, and that 7 the opinions are not supported by objective evidence, is not supported by substantial evidence. 8 See Lambert, 980 F.3d at 1277; Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) 9 (“[W]hen an opinion is not more heavily based on a patient’s self-reports than on clinical 10 observations, there is no evidentiary basis for rejecting the opinion.”). 11 Regarding the ALJ’s third reason, the ALJ also found Dr. Wheeler’s opinions 12 unpersuasive because they are inconsistent with plaintiff’s reported activities. AR 79. Here, the 13 ALJ identified plaintiff’s ability to prepare meals, perform household chores, use public 14 transportation, shop independently, and watch YouTube videos as evidence suggesting that

15 plaintiff’s functioning is not as limited as alleged. See id. However, Dr. Wheeler was aware that 16 plaintiff was capable of such activities, and she nonetheless opined that plaintiff would be 17 limited in his abilities to carry out work activities. See AR 1252, 1617 (noting daily activities of 18 watching TV/YouTube, ability to shop for himself, do some house chores and spend time 19 socializing with family and friends). Without additional explanation, it is not clear to the Court 20 how the cited daily activities are inconsistent with plaintiff’s reported activities or with Dr. 21 Wheeler’s opined limitations. See 20 C.F.R. § 916.920c(b)(2) (An ALJ is required to explain 22 how he considered consistency of a medical opinion with other evidence of record); see also 23

24 1 Blakes, 331 F.3d at 569. Therefore, the ALJ’s conclusion that plaintiff’s reported daily activities 2 are inconsistent with Dr. Wheeler’s opinions is not supported by substantial evidence. 3 Next, the ALJ found—without explanation—that Dr. Wheeler’s opinions are inconsistent 4 with plaintiff’s minimal treatment history, as well as evidence showing that plaintiff’s conditions

5 are “stable on only his medication regimen.” AR 79. As noted above, the ALJ may find that a 6 medical opinion’s inconsistency with the medical evidence of record renders that opinion less 7 persuasive. See C.F.R. § 920c(c)(2). However, the ALJ must explain any such inconsistencies. 8 See id. at § 920c(a), (b)(2). Again, the ALJ failed to explain how plaintiff’s lack of medical 9 treatment and stability on medication are inconsistent with Dr. Wheeler’s opinion. See 20 C.F.R. 10 920c(a), (b)(2) (requiring explanation of inconsistencies); see also Lambert, 980 F.3d at 1277 11 (the ALJ must provide sufficient reasoning for his findings). 12 Further, Dr. Wheeler noted that plaintiff’s treatment history was minimal and that he was 13 taking medication for his anxiety. See AR 1251 (also noting that plaintiff was previously placed 14 on a psychiatric hold when he became irrational and wanted to leave a hospital during cardiac

15 treatment), AR 1616 (also noting that plaintiff was evaluated another time when his mother 16 became worried and called the authorities). Dr. Wheeler further addressed plaintiff’s lack of 17 treatment, noting that he would need a “seasoned therapist” to address plaintiff’s “avoidant” and 18 “dependent” behavior and symptoms. AR 1253, 1616. Taking these factors into consideration, 19 Dr. Wheeler opined that plaintiff would still have significant work-related limitations. See AR 20 1618; see also Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[T]he fact that claimant 21 may be one of millions of people who did not seek treatment for a mental disorder until late in 22 the day is not a substantial basis on which to conclude that [a physician’s] assessment of 23 claimant’s condition is inaccurate.”).

24 1 Additionally, the record does not support the ALJ’s characterization of plaintiff as being 2 “stable on only his medication regimen.” AR 79. Rather, it appears that although plaintiff 3 remained on the same medication, he nonetheless continued to complain of increased depression, 4 fatigue, and medication side effects and to display mood, affect and other symptoms. See AR

5 1040–1041, 1064–65, 1130–31, 1150, 1511–1514, 1516–1520; see also Ghanim v. Colvin, 763 6 F.3d 1154, 1164 (9th Cir. 2014) (finding error where the ALJ improperly “cherry-picked” 7 aspects of the record that support the ALJ’s decision, while failing to develop the record on 8 aspects of the record that support a finding of disabling limitations). Thus, without further 9 explanation, it is unclear to the Court how plaintiff’s lack of treatment and continued medication 10 regimen are inconsistent with Dr. Wheeler’s opinions. See 20 C.F.R. § 404.927c(a), (b)(2); 11 Blakes, 31 F.3d at 569. Accordingly, the ALJ’s conclusions are not supported by substantial 12 evidence. 13 As for the ALJ’s fifth reason, the ALJ concluded that Dr. Wheeler’s opinions are 14 inconsistent with plaintiff performance during Dr. Wheeler’s MSEs, which “only show some

15 deficits in mental functioning.” AR 79. As discussed above, Dr. Wheeler observed a number of 16 abnormalities displayed by plaintiff during MSEs, including that plaintiff’s mood was anxious, 17 his affect was blunted, and his concentration and memory were not within normal limits. See AR 18 1254–55, 1619–20. Again, these findings tend to support to support Dr. Wheeler’s opinions that 19 plaintiff has mood and functional symptoms that would limit his abilities to perform work 20 activities. Thus, by characterizing plaintiff’s MSE performance as showing “only some deficits 21 in mental functioning” (AR 79), the ALJ appears to have overlooked portions of MSEs and 22 improperly substituted his own judgment for that of Dr. Wheeler’s observations. See Reddick v. 23 Chater, 157 F.3d 715, 725 (9th Cir. 1998) (When an ALJ seeks to discredit a medical opinion, he

24 1 must explain why his own interpretations, rather than those of the doctor, are correct.); see also 2 Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“[J]udges, including administrative law 3 judges of the Social Security Administration, must be careful not to succumb to the temptation to 4 play doctor. [. . .] Common sense can mislead; lay intuitions about medical phenomena are often

5 wrong.”) (internal citations omitted). 6 Finally, the ALJ found that Dr. Wheeler “failed to examine the effects of plaintiff’s 7 chronic marijuana use on his motivation and functioning.” AR 79. The ALJ did not explain how 8 such a finding would undermine Dr. Wheeler’s opinions, as he was required to do. See 20 9 C.F.R. § 920c(a), (b)(2). Even so, substantial evidence does not support the ALJ’s finding. 10 During the 2019 examination, Dr. Wheeler was aware of plaintiff’s daily marijuana use, and she 11 found that even if plaintiff were sober, the effects of his mental impairments would still impact 12 basic work activities. See AR 1251, 1253. Similarly, during the 2020 examination, Dr. Wheeler 13 noted that plaintiff had stopped using marijuana and that plaintiff would still be limited in 14 performing basic work activities. See AR 1617–18. Thus, it appears that Dr. Wheeler did

15 consider plaintiff’s marijuana use and its impact on plaintiff’s functioning. To the extent that the 16 ALJ concluded that Dr. Wheeler’s opinions are inconsistent with or not supported due to 17 plaintiff’s marijuana use, he failed to specify or explain any such conflict. See AR 79; 20 C.F.R. 18 § 404.920c(a), (b)(2); Lambert, 980 F.3d at 1277. 19 In sum, the ALJ’s evaluation of Dr. Wheeler’s opinions was not supported by substantial 20 evidence. The Court further finds that the ALJ’s error was not harmless. Had the ALJ fully 21 credited Dr. Wheeler’s opinions regarding plaintiff’s mental limitations, the residual functional 22 capacity (“RFC”) would have included greater limitations. See Marsh v. Colvin, 792 F.3d 1170, 23 1173 (9th Cir. 2015) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055–56 (9th Cir. 2006)) (“‘a

24 1 reviewing court cannot consider [an] error harmless unless it can confidently conclude that no 2 reasonable ALJ, when fully crediting the testimony, could have reached a different disability 3 determination.’”). 4 II. Remaining Issues

5 Plaintiff also argues that the ALJ improperly considered plaintiff’s drug and alcohol use 6 in discrediting plaintiff’s subjective complaints. Dkt. 16, at 12. Additionally, plaintiff argues 7 that the ALJ’s decision was constitutionally defective because of the unconstitutional 8 appointment and removal of the Commissioner of Social Security. See id. at 13–20. Because the 9 case may be resolved without considering plaintiff’s remaining arguments, the Court declines to 10 address these issues. 11 III. Remand for Award of Benefits 12 Plaintiff asks the Court to remand this case for an award of benefits. See Dkt. 16, at 21. 13 A remand for an award of benefits is appropriate “where ‘(1) the record has been fully developed 14 and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to

15 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical 16 opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be 17 required to find the claimant disabled on remand.’” Trevizo v. Berryhill, 871 F.3d 664, 682–83 18 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)). But “[w]here 19 there is conflicting evidence, and not all essential factual issues have been resolved, a remand for 20 an award of benefits is inappropriate.” See Treichler v. Cmm’r, 775 F.3d 1090, 1101 (9th Cir. 21 2014). 22 Here, the record is well-developed regarding plaintiff’s mental limitations, the focus of 23 Dr. Wheeler’s opinions. Considering Dr. Wheeler’s examining relationship with plaintiff and

24 1 the overall evidence of record supporting Dr. Wheeler’s opinions, any further administrative 2 proceedings would not be helpful in reevaluating any inconsistencies in the state agency 3 reviewing doctors’ opinions, where only a limited number of plaintiff’s medical records were 4 reviewed. See AR 149–50, 171–73; see also 20 C.F.R. § 920c(c)(3)(v) (“A medical source may

5 have a better understanding of your impairment(s) if he or she examines you than if the medical 6 source only reviews evidence in your folder.”). Further, every other examining or reviewing 7 doctor of record opined that plaintiff would be at least markedly limited in his abilities to 8 perform activities within a schedule and maintain regular attendance within customary 9 tolerances; to maintain appropriate behavior in a work setting; and to complete a normal 10 workday and workweek without interruptions from symptoms. See AR 1129–32, 1208–12, 11 1217–26, 1232–39, 1243–48, 1256–57; but see AR 1145–51 (examining opinion regarding 12 diagnoses but giving no functional assessment). 13 If Dr. Wheeler’s opinions were credited as true, particularly her opinion that plaintiff is 14 markedly limited in his abilities to maintain regular attendance and to complete a normal

15 workday and workweek without interruptions from symptoms, the ALJ would be required to find 16 plaintiff disabled on remand. See AR 1253, 1618; Revels v. Berryhill, 874 F.3d 648, 665 (9th 17 Cir. 2017) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1041 n. 12 (9th Cir. 2007)) (“Because 18 the [vocational expert] testified that a [plaintiff] with the physical limitations outlined in [a 19 treating doctor]’s medical opinion would be unable to do any full-time work, the [treating 20 doctor]’s medical opinion alone establishes that [the plaintiff] is entitled to benefits.”). 21 The ALJ and plaintiff’s attorney questioned the vocational expert (“VE”) at the hearing 22 regarding whether plaintiff would be competitively employable if he was absent from work more 23 than one day per month or was off task more than 10% in a workday. See AR 109–12. In each

24 1 instance, the VE testified that a person with these limitations would not be able to maintain 2 competitive employment. See id. Therefore, crediting Dr. Wheeler’s opinions as true, there is 3 no serious question regarding plaintiff’s lack of employability, and remand for an award of 4 benefits is the appropriate remedy.

5 CONCLUSION 6 Based on these reasons and the relevant record, the Court ORDERS that this matter be 7 REVERSED and REMANDED for an award of benefits. 8 JUDGMENT should be for PLAINTIFF and the case should be closed. 9 Dated this 18th day of January, 2022. A 10

11 J. Richard Creatura Chief United States Magistrate Judge 12

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