Arredondo v. O'Malley

• Court: District Court, E.D. Washington
• Decided: October 18, 2023
• Docket: 2:22-cv-00265
• Status: Unknown

Opinion

1 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 2 Oct 18, 2023

SEAN F. MCAVOY, CLERK 4

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF WASHINGTON

7 JESSICA A., No. 2:22-CV-0265-WFN 8 Plaintiff, -vs- ORDER 9 KILOLO KIJAKAZI, Acting 10 Commissioner of Social Security

11 Defendant.

12 13 Jessica A. [Plaintiff] brings this action seeking judicial review of the Commissioner 14 of Social Security's final decision denying her application for disability benefits. ECF No. 1. 15 Attorney Jeffrey Schwab represents Plaintiff. Special Assistant United States Attorney 16 David Burdett represents the Commissioner [Defendant]. After reviewing the administrative 17 record and the briefs filed by the parties, the Court REVERSES the Commissioner's final 18 decision. 19 JURISDICTION 20 Plaintiff applied for Supplemental Security Income on February 12, 2020, alleging 21 disability beginning on December 1, 2019. Tr. 259–76. She later amended her alleged onset 22 date to February 12, 2020. Tr. 103. The application was denied initially, Tr. 135–47, and on 23 reconsideration, Tr. 149–68. Administrative Law Judge [ALJ] Lori Freund held a hearing 24 on September 20, 2021, Tr. 99–134, and issued an unfavorable decision on October 28, 25 2021, Tr. 26–47. The Appeals Council denied review on September 19, 2022. Tr. 1–7. The 26 ALJ's October 2021 decision became the Commissioner's final decision, which is appealable 27 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 28 review on November 4, 2022. ECF No. 1. 1 FACTS 2 Plaintiff was born in 1992 and was 27 years of age as of her alleged onset date. Tr. 23, 3 259. She has a GED and past work as a fast-food worker, waitress, and hostess. Tr. 35, 4 128-29, 313. Plaintiff alleges disability based on seizures, migraines, anxiety, bipolar 5 disorder, personality disorder, and post-traumatic stress disorder [PTSD]. Tr. 370. 6 STANDARD OF REVIEW 7 The ALJ is responsible for determining credibility, resolving conflicts in medical 8 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 9 Cir.1995). The Court reviews the ALJ's legal conclusions de novo but gives deference 10 to a reasonable interpretation of a statute the agency is charged with administering. See 11 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The ALJ's decision will be 12 reversed only if it is not supported by substantial evidence or if it is based on legal error. 13 Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). Substantial evidence is more 14 than a scintilla, but less than a preponderance. Id. at 1098. Put another way, "'[i]t means such 15 relevant evidence as a reasonable mind might assess as adequate to support a 16 conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. 17 v. NLRB, 305 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 18 interpretation, the Court may not substitute its judgment for the ALJ's. Tackett, 180 F.3d at 19 1097–98; Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The 20 ALJ's decision is conclusive if it is supported by substantial evidence, even if conflicting 21 evidence supports a finding of either disability or non-disability. Sprague v. Bowen, 812 22 F.2d 1226, 1229–30 (9th Cir. 1987). But a decision supported by substantial evidence will 23 still be set aside if it is based on legal error. Brawner v. Sec'y of Health & Hum. Servs., 839 24 F.2d 432, 433 (9th Cir. 1988). 25 SEQUENTIAL EVALUATION PROCESS 26 The Commissioner has established a five-step sequential evaluation process for 27 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); Bowen v. 28 Yuckert, 482 U.S. 137, 140–42 (1987). In steps one through four the claimant bears the 1 burden of establishing disability. Tackett, 180 F.3d at 1098–99. This burden is met once a 2 claimant establishes that a physical or mental impairment prevents her from engaging in past 3 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot perform 4 past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner 5 to show (1) the claimant can make an adjustment to other work; and (2) the claimant 6 can perform specific jobs that exist in the national economy. Batson v. Comm'r of Soc. 7 Sec. Admin., 359 F.3d 1190, 1193–94 (9th Cir. 2004). If a claimant cannot make an 8 adjustment to other work in the national economy, she will be found disabled. 20 C.F.R. 9 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 10 ADMINISTRATIVE DECISION 11 On October 28, 2021, the ALJ issued a decision finding Plaintiff was not disabled as 12 defined in the Social Security Act. Tr. 26–47. 13 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 14 since the alleged onset date. Tr. 31. 15 At step two, the ALJ determined Plaintiff had the following severe impairments: 16 "seizures/nonepileptic spells; bipolar disorder; anxiety disorder with compulsive features; 17 [and] borderline personality disorder." Tr. 32. 18 At step three, the ALJ found Plaintiff did not have an impairment or combination of 19 impairments that met or medically equaled the severity of one of the listed impairments. 20 Tr. 33–34. 21 The ALJ assessed Plaintiff's Residual Functional Capacity [RFC] and found 22 she can 23 perform a full range of work at all exertional levels but with the following 24 non[-]exertional limitations: She can never climb ladders, ropes, or scaffolds[;] 25 She can occasionally climb ramps/stairs[;] She must avoid unprotected heights, 26 hazards, hazardous machinery, the operational control of moving machinery, 27 working around large bodies of water, and the use of any hazardous hand 28 tools[;] She is limited to simple and repetitive tasks (there can be some 1 detail, but nothing complex, i.e., work can be up to a reasoning level of 3)[;] 2 She could have superficial, brief interaction with the general public[;] She 3 could have occasional interaction with coworkers, but no tandem tasks 4 could be performed[;] She would need to avoid fast-paced assembly work[;] 5 She should avoid working in areas with noise louder than loud traffic without 6 hearing protection[;] She could tolerate occasional changes in a work 7 setting. 8 Tr. 34. 9 At step four, the ALJ found Plaintiff was unable to perform her past relevant work as 10 a fast-food worker, waitress, or hostess. Tr. 42. 11 At step five, the ALJ found, based on the vocational expert's testimony, and 12 considering Plaintiff's age, education, work experience, and RFC, there were jobs that 13 existed in significant numbers in the national economy that Plaintiff could perform. Tr. 42– 14 43. The ALJ specifically identified the representative occupations of office helper, marker, 15 and photocopy machine operator. Tr. 43. 16 The ALJ thus concluded Plaintiff was not under a disability within the meaning of the 17 Social Security Act at any time from the application date. Id. 18 ISSUES 19 The question presented is whether substantial evidence supports the ALJ's decision 20 denying benefits and, if so, whether the decision is based on proper legal standards. 21 Plaintiff contends the ALJ erred by (1) improperly evaluating the medical opinion 22 evidence, (2) failing to conduct an adequate step three inquiry, (3) rejecting lay witness 23 testimony, (4) rejecting Plaintiff's subjective complaints, and (5) failing to conduct an 24 adequate step five inquiry. ECF No. 11 at 1–2. 25 DISCUSSION 26 (1) Medical Opinion of Thomas Genthe, Ph.D. 27 Plaintiff alleges the ALJ erred by improperly evaluating the opinion of Thomas 28 Genthe, Ph.D. ECF No. 11 at 11–14. 1 The ALJ considers the persuasiveness of each medical opinion and prior 2 administrative medical finding, regardless of whether the medical source is an Acceptable 3 Medical Source. 20 C.F.R. § 404.1520c(c). The ALJ is required to consider multiple 4 factors, including supportability, consistency, the source's relationship with the 5 claimant, any specialization of the source, and other factors, such as the source's familiarity 6 with other evidence in the file or an understanding of Social Security's disability 7 program. Id. The regulations make clear that the supportability and consistency of 8 the opinion are the most important factors, and the ALJ must articulate how she 9 considered those factors in determining the persuasiveness of each medical opinion or prior 10 administrative medical finding. 20 C.F.R. § 404.1520c(b). The ALJ may explain how 11 she considered the other factors, but is not required to do so, except in cases where 12 two or more opinions are equally well-supported and consistent with the record. 13 Id. 14 Supportability and consistency are further explained in the regulations: 15 (1) Supportability. The more relevant the objective medical evidence and 16 supporting explanations presented by a medical source are to support his or her 17 medical opinion[s] or prior administrative medical finding[s], the more 18 persuasive the medical opinions or prior administrative medical finding[s] will 19 be. 20 (2) Consistency. The more consistent a medical opinion[s] or prior 21 administrative medical finding[s] is with the evidence from other medical 22 sources and nonmedical sources in the claim, the more persuasive the medical 23 opinion[s] or prior administrative medical finding[s] will be. 24 20 C.F.R. § 404.1520c(c). 25 The Ninth Circuit has additionally held that the new regulatory framework displaces 26 the longstanding case law requiring an ALJ to provide "specific and legitimate" or "clear 27 and convincing" reasons for rejecting a treating or examining doctor's opinion. Woods v. 28 Kijakazi, 32 F.4th 785, 787, 792 (9th Cir. 2022). "Now, an ALJ's decision, including the 1 decision to discredit any medical opinion, must simply be supported by substantial 2 evidence." Id. at 787. 3 Dr. Genthe evaluated Plaintiff on January 6, 2020. Tr. 378–88. Based on an interview, 4 mental status examination, and psychometric assessment, Dr. Genthe opined that Plaintiff 5 had marked limitations in communicating and performing effectively in a work setting, 6 maintaining appropriate behavior in a work setting, completing a normal workday and 7 workweek without interruptions from psychologically based symptoms, and setting realistic 8 goals and planning independently. Tr. 381. 9 The ALJ found Dr. Genthe's opinion unpersuasive because it "was based completely 10 on the claimant's subjective complaints and Dr. Genthe's one-time observations, as he 11 reported no medical records were provided for review." Tr. 41. The ALJ also found Dr. 12 Genthe's assessment of marked limitations inconsistent with Plaintiff's own reports, which 13 did not include allegations of mental impairments; inconsistent and unsupported by Dr. 14 Genthe's own mental status examination, which was largely normal. Finally, the ALJ noted 15 Dr. Genthe's opinion was inconsistent with the overall record. Id. 16 Plaintiff argues the ALJ erred by dismissing Dr. Genthe's opinion for being based 17 on Plaintiff's subjective reports. ECF No. 11 at 12–13. Dr. Genthe interviewed Plaintiff 18 and performed a mental status examination and a psychometric assessment. Tr. 383–88. 19 Clinical interviews and mental status evaluations "'are objective measures and cannot be 20 discounted as a self-report.'" Id. (quoting Buck v. Berryhill, 869 F.3d 1040, 1049 (9th 21 Cir. 2017)). In response, Defendant argues Plaintiff's claimed symptoms "could not 22 provide support for Dr. Genthe's opinion" because they "were not 'objective medical 23 evidence.'" ECF No. 15 at 4–5. However, Defendant does not offer any citation support 24 for this assertion1 or meaningfully respond to Plaintiff's argument that the ALJ erred 25 26 1 Defendant provides a citation for the principle that opinions supported by objective medical 27 evidence are more persuasive, see ECF No. 15 at 5, but this is apart from the question of 28 whether mental status examinations and clinical interviews are objective medical evidence. 1 under Buck by dismissing Dr. Genthe's clinical interview and mental status examination as 2 mere self-report. See ECF No. 15 at 4-5. The ALJ was not required to accept Dr. Genthe's 3 opinion, but it was error to dismiss his evaluation as mere observation of self-report. See 4 Buck, 869 F.3d at 1049. 5 Plaintiff asks the Court to remand for an award of benefits. ECF No. 11 at 14. 6 However, that remedy is only appropriate if the record leaves no doubt that the claimant is 7 disabled. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1100–01 (9th Cir. 8 2014). That is not the case here. The Court will remand this matter for additional proceedings 9 and explanation. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 10 (2) Plaintiff's Other Assignments of Error 11 Plaintiff also argues the ALJ erred by improperly assessing the medical opinion of 12 Jay Toews, Ed.D., failing to conduct an adequate step three inquiry, rejecting lay witness 13 testimony, rejecting Plaintiff's subjective complaints, and failing to conduct an adequate step 14 five inquiry. ECF No. 11 at 14–22. The analysis of these issues could be impacted by the 15 ALJ's assessment of Dr. Genthe's opinion. Therefore, the ALJ shall reevaluate those issues 16 on remand as well. 17 CONCLUSION 18 Having reviewed the record and the ALJ's findings, the Court finds the ALJ erred by 19 dismissing Dr. Genthe's evaluation as mere observation of self-report. The Court has 20 reviewed the briefs and the file and is fully informed. Accordingly, 21 IT IS ORDERED that: 22 1. Plaintiff's Brief, filed April 12, 2023, ECF No. 11, is GRANTED IN PART. 23 2. The matter is REMANDED to the Commissioner for additional proceedings 24 consistent with this Order. 25 3. Defendant's Brief, filed June 26, 2023, ECF No. 15, is DENIED. 26 4. An application for attorney fees may be filed by separate motion. 27 The District Court Executive is directed to file this Order and provide copies to 28 counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 1 DATED this 18th day of October, 2023. 2 3 L. Dla 4 FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28