3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Jul 08, 2020
5 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 6
7 JUSTIN B., NO: 1:19-CV-03150-FVS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR SECURITY, SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 14 and 16. This matter was submitted for consideration 15 without oral argument. The Plaintiff is represented by Attorney D. James Tree. 16 The Defendant is represented by Special Assistant United States Attorney 17 Benjamin J. Groebner. The Court has reviewed the administrative record and the 18 parties’ completed briefing and is fully informed. For the reasons discussed below, 19 the court GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 14, and 20 DENIES Defendant’s Motion for Summary Judgment, ECF No. 16. 21 1 JURISDICTION 2 Plaintiff Justin B. protectively filed for supplemental security income on 3 May 26, 2009, alleging an onset date of May 1, 2008. Tr. 185-87. Benefits were 4 denied initially, Tr. 93-96, and upon reconsideration, Tr. 97-98. Plaintiff requested
5 a hearing before an administrative law judge (“ALJ”), which was held before ALJ 6 Marie Palachuk on May 10, 2011. Tr. 55-90. Plaintiff was represented by counsel 7 and testified at the hearing. Id. The ALJ denied benefits, Tr. 19-35, and the
8 Appeals Council denied review. Tr. 1. On August 25, 2013, the United States 9 District Court for the Eastern District of Washington granted Plaintiff’s Motion for 10 Summary Judgment, and remanded the case for further proceedings. Tr. 416-39. 11 On April 30, 2014, the Appeals Council vacated the ALJ’s finding, and remanded
12 for further administrative proceedings. Tr. 448-51. On February 9, 2016, Plaintiff 13 appeared for an additional hearing before the ALJ. Tr. 369-92. The ALJ denied 14 benefits. Tr. 348-63. On July 14, 2017, the United States District Court for the
15 Eastern District of Washington granted the parties’ stipulated motion to remand, 16 and again remanded the case for further proceedings. Tr. 921-35. On September 17 19, 2017, the Appeals Council vacated the ALJ’s finding, and remanded for further 18 administrative proceedings. Tr. 936-41. Plaintiff did not appear for an additional
19 hearing on November 14, 2018, and the ALJ approved the request to treat Plaintiff 20 as a non-essential witness who has constructively waived his right to appear for 21 another hearing. Tr. 842-43, 865-81. On November 27, 2019, the ALJ denied 1 benefits. Tr. 839-864. The matter is now before this court pursuant to 42 U.S.C. § 2 1383(c)(3). 3 BACKGROUND 4 The facts of the case are set forth in the administrative hearing and
5 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 6 Only the most pertinent facts are summarized here. 7 Plaintiff was 34 years old at the time of the first hearing. See Tr. 84. He
8 testified that he “didn’t pass” the ninth grade, and “can barely read.” Tr. 70. At 9 the time of the first hearing, Plaintiff lived with his girlfriend. Tr. 78. He has work 10 history as a construction worker, sandwich maker, and industrial cleaner. Tr. 84. 11 Plaintiff testified that he could “try” working but “it hasn’t worked in the past”
12 because there are many days when he cannot get out of bed and cannot be around 13 people. Tr. 80-81. 14 Plaintiff reported that he argues with someone “pretty much every single
15 time [he goes] into public,” spends most of the summer in the mountains by 16 himself, and has trouble dealing with authority figures. Tr. 73-76, 80-81. He has 17 difficulties with concentration and staying focused, and he cannot remember dates 18 and numbers. Tr. 78-79. At the time of the second hearing, Plaintiff was in jail for
19 second degree assault, and he reported multiple other instances where he 20 physically assaulted people due to “anxiety.” Tr. 379-82. 21 1 STANDARD OF REVIEW 2 A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported
5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159
8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether the standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching
12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is
15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 18 court “may not reverse an ALJ’s decision on account of an error that is harmless.”
19 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 20 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 21 1 party appealing the ALJ’s decision generally bears the burden of establishing that 2 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 3 FIVE–STEP SEQUENTIAL EVALUATION PROCESS 4 A claimant must satisfy two conditions to be considered “disabled” within
5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which
8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 10 “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of
12 substantial gainful work which exists in the national economy.” 42 U.S.C. § 13 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to
15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 16 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 17 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 18 gainful activity,” the Commissioner must find that the claimant is not disabled. 20
19 C.F.R. § 416.920(b). 20 If the claimant is not engaged in substantial gainful activity, the analysis 21 proceeds to step two. At this step, the Commissioner considers the severity of the 1 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 2 “any impairment or combination of impairments which significantly limits [his or 3 her] physical or mental ability to do basic work activities,” the analysis proceeds to 4 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy
5 this severity threshold, however, the Commissioner must find that the claimant is 6 not disabled. 20 C.F.R. § 416.920(c). 7 At step three, the Commissioner compares the claimant’s impairment to
8 severe impairments recognized by the Commissioner to be so severe as to preclude 9 a person from engaging in substantial gainful activity. 20 C.F.R. § 10 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 11 enumerated impairments, the Commissioner must find the claimant disabled and
12 award benefits. 20 C.F.R. § 416.920(d). 13 If the severity of the claimant’s impairment does not meet or exceed the 14 severity of the enumerated impairments, the Commissioner must pause to assess
15 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 16 defined generally as the claimant’s ability to perform physical and mental work 17 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 18 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis.
19 At step four, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing work that he or she has performed in 21 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 1 capable of performing past relevant work, the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 3 performing such work, the analysis proceeds to step five. 4 At step five, the Commissioner considers whether, in view of the claimant’s
5 RFC, the claimant is capable of performing other work in the national economy. 6 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 7 must also consider vocational factors such as the claimant’s age, education and
8 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 9 adjusting to other work, the Commissioner must find that the claimant is not 10 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 11 other work, analysis concludes with a finding that the claimant is disabled and is
12 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 13 The claimant bears the burden of proof at steps one through four above. 14 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to
15 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 16 capable of performing other work; and (2) such work “exists in significant 17 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 18 700 F.3d 386, 389 (9th Cir. 2012).
19 ALJ’S FINDINGS 20 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 21 activity since May 26, 2009, the application date. Tr. 845. At step two, the ALJ 1 found Plaintiff has the following severe impairments: depressive disorder(s), 2 anxiety disorder(s) (including post-traumatic stress disorder), personality 3 disorder(s), borderline intellectual functioning, and substance use disorder(s). Tr. 4 845. At step three, the ALJ found that Plaintiff does not have an impairment or
5 combination of impairments that meets or medically equals the severity of a listed 6 impairment. Tr. 845. The ALJ then found that Plaintiff has the RFC 7 to perform a full range of work at all exertional levels. He is limited to jobs with a specific vocational preparation (SVP) of two or less, with simple 8 work-related decisions and few workplace changes. He should not have public contact. He should only have incidental contact with coworkers. He 9 can work in proximity to coworkers but without any requirement for tandem tasks. He should only have occasional supervision as needed. He will be 10 off-task up to ten [percent] of his workday.
11 Tr. 847. At step four, the ALJ found that Plaintiff cannot perform past relevant 12 work. Tr. 854. At step five, the ALJ found that considering Plaintiff’s age, 13 education, work experience, and RFC, there are jobs that exist in significant 14 numbers in the national economy that Plaintiff can perform, including: automobile 15 detailer, industrial cleaner, and kitchen helper. Tr. 855. On that basis, the ALJ 16 concluded that Plaintiff has not been under a disability, as defined in the Social 17 Security Act, since May 26, 2009, the date the application was filed. Tr. 855. 18 ISSUES 19 Plaintiff seeks judicial review of the Commissioner’s final decision denying 20 him supplemental security income benefits under Title XVI of the Social Security 21 Act. ECF No. 14. Plaintiff raises the following issues for this Court’s review: 1 1. Whether the ALJ properly weighed the medical opinion evidence; and 2 2. Whether the ALJ improperly discredited Plaintiff’s symptom claims. 3 DISCUSSION 4 A. Medical Opinions
5 There are three types of physicians: “(1) those who treat the claimant 6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant
8 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 10 Generally, a treating physician's opinion carries more weight than an examining 11 physician's, and an examining physician's opinion carries more weight than a
12 reviewing physician's. Id. If a treating or examining physician's opinion is 13 uncontradicted, the ALJ may reject it only by offering “clear and convincing 14 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d
15 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's 16 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 17 providing specific and legitimate reasons that are supported by substantial 18 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).
19 “However, the ALJ need not accept the opinion of any physician, including a 20 treating physician, if that opinion is brief, conclusory and inadequately supported 21 1 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (9th Cir. 2009) (quotation and citation omitted). 3 The opinion of an acceptable medical source such as a physician or 4 psychologist is given more weight than that of an “other source.” See SSR 06-03p
5 (Aug. 9, 2006), available at 2006 WL 2329939 at *2; 20 C.F.R. § 416.927(a). 6 “Other sources” include nurse practitioners, physician assistants, therapists, 7 teachers, social workers, and other non-medical sources. 20 C.F.R. § 416.913(d).
8 The ALJ need only provide “germane reasons” for disregarding an “other source” 9 opinion. Molina, 674 F.3d at 1111. However, the ALJ is required to “consider 10 observations by nonmedical sources as to how an impairment affects a claimant's 11 ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).
12 Plaintiff argues that the ALJ erroneously considered the opinions of 13 testifying medical expert Dr. W. Scott Mabee, Ph.D., examining psychologist 14 Philip G. Barnard, Ph.D., examining psychologist Emma J. Billings, Ph.D., treating
15 social worker Russell Anderson, MSW, and reviewing psychologist Steven 16 Johansen, Ph.D. ECF No. 14 at 6-16. 17 1. Dr. W. Scott Mabee 18 In May 2011, Dr. Mabee testified that Plaintiff had moderate limitations in
19 the ability to understand and remember detailed instructions; maintain 20 concentration, persistence, and pace; and deal with supervisors. Tr. 65. He further 21 opined that “[g]enerally [Plaintiff’s] capacities remain within more simple, routine 1 tasks away from others in which work could be carried out,” and “a more isolated 2 environment would be a better fit for [Plaintiff].” Tr. 65. The ALJ gave “some 3 weight” to Dr. Mabee’s opinion, and “incorporate[d] this testimony with the 4 [Plaintiff’s] overall evidence by finding he is capable of unskilled employment
5 with simple work-related decisions, few workplace changes, no public contact, and 6 no teamwork with coworkers. He should only have occasional supervision as 7 needed. He will be off-task up to ten percent of his workday.” Tr. 853.
8 Plaintiff argues that the ALJ assigned “some weight” to Dr. Mabee’s 9 opinion, “which was the greatest weight given to any source in this record,” but 10 failed to “account for” testimony from Dr. Mabee as follows: 11 Plaintiff Attorney: In Dr. Billings’ note she said that as far as social interaction [Plaintiff is] a high defensive and argumentative, likely to 12 respond aggressively if perceived himself criticized. Would you agree with that statement? 13 Dr. Mabee: Yes – that social interactions are his primary area of limitation. 14 Plaintiff Attorney: Yeah. And then her opinion that he’s likely to continue 15 to have short-term labor positions. She’d noted that he’s had those type of jobs in the past and lost them due to conflicts. That was her in - - 16 conclusion. Do you agree with that opinion?
17 Dr. Mabee: That sustaining is likely to be a problem because of the social [] skills – yes. 18 Plaintiff Attorney: Okay. All right. Now in your opinion you’d said that 19 he’s going to have also marked difficulties with regularity of work behavior, attendance – things like that. Were you – I guess I didn’t get it. What 20 exactly were you saying there – he’d have a moderate limitation in number – like number 7 – ability to perform activities within a schedule, maintain 21 regular attendance, and be punctual [] within customary tolerances? 1 Dr. Mabee: 7 probably as well as 11, in terms of being able to sustain work 2 on a regular basis – and that goes to the comment that you just made previously in terms of short-term types of jobs – has the capacity to handle 3 those but sustaining work would be more difficult.
4 Tr. 67-68. 5 Here, the ALJ generally purported to incorporate Dr. Mabee’s “testimony” 6 into the RFC by finding Plaintiff was capable of simple work-related decisions, 7 few workplace changes, no public contact, no teamwork with coworkers, 8 occasional supervision as needed, and he would be offtask up to ten percent of his 9 workday. Tr. 853. Defendant argues the ALJ properly relied on Dr. Mabee’s 10 testimony earlier in the hearing that (1) Plaintiff had “at least moderate” limitations 11 in “regularity of work behavior,” and moderate limitations in social functioning, 12 and (2) “the ability to not manifest behavioral experience such as anger would 13 likely be seen.” Tr. 65. In support of this argument, Defendant cited an 14 unpublished 2016 case to support the contention that the “ALJ was entitled to rely
15 on Dr. Mabee’s specific testimony about how [Plaintiff’s] moderate limitations 16 would affect his social functioning over his more general testimony about the 17 ability to sustain work.” ECF No. 16 at 4 (citing Cobb v. Colvin, No. 16-05112, 18 2016 WL 3856144, at *4 (W.D. Wash. July 15, 2016) (ALJ properly relied on the
19 “functional assessment over a less specific finding” that it was “unlikely that 20 [Plaintiff] would be able to sustain her employment”). Thus, according to 21 1 Defendant, the “ALJ rationally incorporated Dr. Mabee’s opinion into the RFC 2 finding.” ECF No. 16 at 4. 3 “[T]he ALJ is responsible for translating and incorporating clinical findings 4 into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006
5 (9th Cir. 2015); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1271, 1223 (9th 6 Cir. 2010) (an ALJ’s findings need only be consistent with a physician’s credited 7 limitations, not identical to them). However, while it is true that the ALJ is not
8 bound to adopt, verbatim, the opinions of a medical source, the ALJ is nevertheless 9 required to explain why any conflicting opinions have not been adopted, and here, 10 despite Dr. Mabee’s testimony that Plaintiff’s “social interactions are his primary 11 area of limitations,” the ALJ failed to discuss Dr. Mabee’s apparent agreement
12 with Dr. Billings’ examining opinion that Plaintiff would “likely” continue to have 13 short term labor positions, was “likely” to respond aggressively if perceived 14 himself criticized, and had moderate to marked difficulties in his ability to
15 maintain regular attendance and perform activities within a schedule. Tr. 67-68. 16 Moreover, as noted by Plaintiff, the case law cited by Defendant is distinguishable 17 from the instant case because the testimony by Dr. Mabee that was not considered 18 by the ALJ included specific opinions regarding Plaintiff’s ability to sustain work
19 over time and respond to criticism, as opposed to a general finding about Plaintiff’s 20 ability to work. ECF No. 17 at 1-2. Thus, “[f]or the ALJ to state Dr. Mabee’s 21 1 testimony was incorporated into forming the RFC but then to ignore such relevant 2 [] limitations,” without explanation provided to justify the omission, was error. 3 ECF No. 17 at 2; see SSR 96-8p, 1996 WL 374184 at *7 (Jul. 2, 1996). 4 The Court finds the ALJ erred by failing by either providing the requisite
5 reasons to reject Dr. Mabee’s testimony as to Plaintiff’s social limitations and 6 ability to sustain work, or to specifically consider those limitation in formulating 7 the assessed RFC. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015)
8 (failure to address medical opinion was reversible error). Moreover, the Court 9 notes that the ALJ accorded “some” weight to Dr. Mabee’s opinion, but 10 simultaneously noted that “Dr. Mabee’s testimony in May 2011 was not 11 particularly useful for determining a residual functional capacity.” Tr. 853. The
12 ALJ does not elaborate as to what portion of Dr. Mabee’s opinion is “not 13 particularly useful”; thus, the Court is left to speculate as to whether some portion 14 of Dr. Mabee’s testimony was rejected as “not useful” without sufficient
15 explanation. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (a 16 court “cannot substitute [the court's] conclusions for the ALJ's, or speculate as to 17 the grounds for the ALJ's conclusions. Although the ALJ's analysis need not be 18 extensive, the ALJ must provide some reasoning in order for [the court] to
19 meaningfully determine whether the ALJ's conclusions were supported by 20 substantial evidence.”). 21 1 Finally, the record, as it stands, does not permit the Court to conclude that 2 the error is harmless. See Molina, 674 F.3d at 1115 (error is harmless “where it is 3 inconsequential to the [ALJ’s] ultimate nondisability determination.”). Because 4 the hypothetical RFC posed to the vocational expert may not accurately reflect all
5 of Plaintiff’s limitations, the expert’s testimony has no evidentiary value to support 6 the ALJ’s step five finding that plaintiff can perform jobs in the national economy. 7 Robbins, 466 F.3d at 886. Accordingly, the ALJ’s step five determination is
8 unsupported by substantial evidence. Because the ALJ erred by failing to properly 9 consider the entirety of Dr. Mabee’s testimony as to Plaintiff’s social limitations 10 and ability to sustain work, the opinion must be reconsidered on remand, along 11 with the subsequent steps of the sequential analysis.
12 2. Dr. Philip G. Barnard and Dr. Steven Johansen 13 In June 2014, Dr. Barnard examined Plaintiff and opined that he had marked 14 limitations in his ability to understand, remember, and persist in tasks by following
15 detailed instructions; perform activities within a schedule, maintain regular 16 attendance, and be punctual within customary tolerances without special 17 supervision; communicate and perform effectively in a work setting; maintain 18 appropriate behavior in a work setting; and complete a normal work day and work
19 week without interruptions from psychologically based symptoms. Tr. 751. Dr. 20 Johansen reviewed Dr. Barnard’s opinion and concurred that the severity and 21 functional limitations opined by Dr. Barnard were supported by available medical 1 evidence. Tr. 755. The ALJ gave “minimal” weight to the opinions of Dr. Barnard 2 and Dr. Johansen for several reasons. Tr. 853-54. The ALJ and the parties 3 considered these opinions jointly when appropriate; thus, the Court will do the 4 same.
5 First, the ALJ found that Dr. Barnard “did not give adequate explanation for 6 his multifaceted opinions of psychological disability.” Tr. 853. Relevant factors to 7 evaluating any medical opinion include the amount of relevant evidence that
8 supports the opinion, the quality of the explanation provided in the opinion, and the 9 consistency of the medical opinion with the record as a whole. Lingenfelter v. 10 Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th 11 Cir. 2007). In support of this finding the ALJ noted that in the section of his
12 opinion entitled “clinical findings,” Dr. Barnard wrote that Plaintiff’s “anxiety 13 would affect his ability to work on a daily basis to a mild extent.” Tr. 750. 14 Plaintiff argues this reason was improper because the “clinical findings” section
15 was only “one portion of his 5-page report, which also included a full clinical 16 interview, diagnostic section, medical source statement, and mental status exam. . . 17 . Dr. Barnard therefore had numerous positive objective findings to make a 18 professional judgment of [Plaintiff’s] functional limitations.” ECF No. 14 at 9
19 (citing Tr. 749-53). The Court agrees. While Defendant is correct that the ALJ is 20 “entitled to consider Dr. Barnard’s own explanation for his opinion” when 21 weighing an opinion, the ALJ must do more than state a conclusion. Rather, the 1 ALJ must “set forth his own interpretations and explain why they, rather than the 2 doctors’, are correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “This 3 can be done by setting out a detailed and thorough summary of the facts and 4 conflicting clinical evidence, stating his interpretation thereof, and making
5 findings.” Id. Here, the ALJ fails to summarize and interpret the entirety of Dr. 6 Barnard’s evaluation; thus, the ALJ’s conclusion that Dr. Barnard failed to give 7 adequate explanation for his opinion is not supported by substantial evidence. This
8 was not a specific and legitimate reason for the ALJ to reject Dr. Barnard’s 9 opinion. 10 Second, the ALJ noted that Dr. Barnard “referred [Plaintiff] to vocational 11 rehabilitation services. This indicates Dr. Barnard did not actually believe
12 [Plaintiff] was precluded from work activity and that he gave undue credence to an 13 alleged spinal impairment in regards to [Plaintiff’s] occupational functioning.” Tr. 14 853. However, as noted by Plaintiff, Dr. Barnard referred Plaintiff for further
15 evaluation of his claimed physical impairment only; thus, the Court is unable to 16 perceive any inconsistency between the ALJ’s referral to consider “the extent of 17 [Plaintiff’s] back injury” and the marked mental limitations assessed by Dr. 18 Barnard. ECF No. 14 at 10. Further, while it is well-settled in the Ninth Circuit
19 that the ALJ may “draw inferences logically flowing from evidence,” the Court 20 finds it was not reasonable for the ALJ to infer that Dr. Barnard’s referral to an 21 orthopedic physician and to DVR services “indicate[d] [he] did not actually believe 1 [Plaintiff] was precluded from work activity.” Tommasetti, 533 F.3d at 1040 (ALJ 2 may draw inferences logically flowing from evidence); Magallanes v. Bowen, 881 3 F.2d 747, 755 (9th Cir. 1989). The ALJ did not point to, nor does the Court 4 discern, any evidence that would support a finding that Dr. Barnard “did not
5 actually believe” that Plaintiff was unable to work. Thus, this was not a specific 6 and legitimate reason, supported by substantial evidence, for the ALJ to reject Dr. 7 Barnard’s opined mental health limitations.
8 Third, the ALJ found the “longitud[inal] objective evidence otherwise 9 undermines the opinions of Dr. Barnard.” Tr. 853. In support of this finding, the 10 ALJ first noted that during his evaluation with Dr. Barnard, Plaintiff said his mood 11 was “decent” and he displayed appropriate affect, cooperative behavior, and
12 normal speech. Tr. 853. The ALJ also acknowledged that Plaintiff exhibited 13 impaired thought process, impaired memory, impaired judgement, and impaired 14 concentration, but found that “[a]lthough these findings support some of Dr.
15 Barnard’s opinions, they are contrary to any significant deficits in [Plaintiff’s] 16 behavior or emotional responses.” Tr. 853-54. Finally, the ALJ found the 17 limitations assessed by Dr. Barnard are “inconsistent with [Plaintiff’s] longitudinal 18 presentation in treatment settings, which have found unimpaired thought process,
19 unimpaired memory, unimpaired judgment, and unimpaired concentration.” Tr. 20 854. An ALJ may properly reject a medical opinion if it is inconsistent with the 21 provider's own treatment notes. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 1 (9th Cir. 2008). In addition, the consistency of a medical opinion with the record 2 as a whole is a relevant factor in evaluating that medical opinion. See Orn, 495 3 F.3d at 631; Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 4 2004) (ALJ may discount an opinion that is conclusory, brief, and unsupported by
5 the record as a whole, or by objective medical findings). 6 However, as noted above, when explaining his reasons for rejecting medical 7 opinion evidence, the ALJ must do more than state a conclusion; rather, the ALJ
8 must “set forth his own interpretations and explain why they, rather than the 9 doctors’, are correct.” Reddick, 157 F.3d at 725. “This can be done by setting out 10 a detailed and thorough summary of the facts and conflicting clinical evidence, 11 stating his interpretation thereof, and making findings.” Id. Here, the ALJ fails to
12 explain how or why the largely abnormal mental status examination findings by 13 Dr. Barnard are “contrary to significant deficits in [Plaintiff’s] behavior or 14 emotional response.” Tr. 853-54. As noted by Plaintiff, Dr. Barnard found
15 Plaintiff was unkempt and disheveled, his personal hygiene was “not particularly 16 adequate,” he indicated his mood was “decent” but also indicated he was 17 depressed, he exhibited concrete thinking, he did not know the day of the month or 18 the month, he was not able to do serial 7’s, he recalled one word out of three after
19 five minute time delay, he could not spell “world” backwards, he had abnormal 20 abstract thought, and abnormal insight and judgment. Tr. 752-53. Furthermore, 21 while the ALJ string-cited records in support of his finding that the marked 1 limitations were inconsistent with Plaintiff’s “longitudinal presentation in 2 treatment settings, “most of the examples the ALJ used were only the brief 3 screening devices used during inmate intake and not full psychological exams of 4 the sort Dr. Barnard was conducting. Moreover, many of the places the ALJ cited
5 to included numerous positive findings the ALJ ignored.” ECF No. 14 at 12; Tr. 6 251-52 (Plaintiff is “agitated and angry but cooperative and trying to control 7 himself,” has agitated mood and body movement, reports visual disturbance and
8 ideas of hopelessness, and impaired memory and cognition), 655-56, 665 (“openly 9 admits he is antisocial and states that he really just doesn’t like being around 10 people”), 2153 (Plaintiff is agitated and has poor insight), 2195-96, 2233 (inmate 11 intake screening), 2264 (inmate intake screening included recommended referral to
12 mental health), 2295-96 (inmate intake screening), 2310 (inmate intake screening), 13 2325 (inmate intake screening), 2348 (reports restless sleep, appears irritated, and 14 his case was closed due to his failure to show up for treatment). Finally, as noted
15 by Plaintiff, records throughout the longitudinal record include findings that 16 Plaintiff was angry, anxious, agitated, uncooperative, argumentative, irritable, and 17 had poor insight and judgment. ECF No. 14 at 12. 18 Based on the foregoing, the Court finds the ALJ failed to explain with
19 requisite specificity why or how Dr. Barnard’s largely abnormal mental status 20 examination findings, and the overall longitudinal record indicating that Plaintiff 21 often presented as agitated and angry, was inconsistent with Dr. Barnard’s opinion. 1 Thus, these were not specific and legitimate reasons, supported by substantial 2 evidence, for the ALJ to reject Dr. Barnard’s opinion. See Brown-Hunter, 806 3 F.3d at 492 (“the agency [must] set forth the reasoning behind its decisions in a 4 way that allows for meaningful review”).
5 Fourth, the ALJ found Dr. Barnard’s opinion is “inconsistent with 6 [Plaintiff’s] activities since his application date, such as working for a building 7 siding company and repairing bicycles for pay.” Tr. 854 (citing Tr. 323, 671). An
8 ALJ may discount an opinion that is inconsistent with a claimant’s reported 9 functioning. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 10 1999). In addition, employment “during any period” of claimed disability may be 11 probative of a claimant’s ability to work at the substantial gainful activity level.
12 See 20 C.F.R. § 404.1571. However, “occasional symptom-free periods – and 13 even the sporadic ability to work – are not inconsistent with disability.” Lester, 81 14 F.3d at 833); see also Lingenfelter, 504 F.3d at 1038 (“It does not follow from the
15 fact that a claimant tried to work for a short period of time and, because of his 16 impairments, failed, that he did not then experience pain and limitations severe 17 enough to preclude him from maintaining substantial gainful employment.”). 18 Here, the only evidence cited by the ALJ in support of this finding was a single
19 report by Plaintiff that he was “last employed in the summer of 2010 for one 20 month,” and another report by Plaintiff that he got paid by a couple of people for 21 “fixing their bicycles” but was immediately stopped by his landlord. Tr. 323, 671. 1 The Court finds two reports of “activities,” lasting one month and one day, 2 respectively, is not a specific and legitimate reason, supported by substantial 3 evidence, for the ALJ to reject Dr. Barnard’s opinion. 4 Finally, the ALJ found Dr. Barnard and Dr. Johansen were “not given
5 accurate information on [Plaintiff’s] actual psychological state” because Plaintiff 6 claimed he was sober during Dr. Barnard’s evaluation, and “[b]ased on this 7 reporting, Dr. Barnard and Dr. Johansen both erroneously concluded that [Plaintiff]
8 did not have a substance use disorder.” Tr. 854. In support of this finding, the 9 ALJ cited evidence throughout the record, mostly comprised of Plaintiff’s self- 10 report, of long-term marijuana and methamphetamine use. Tr. 250, 487-88, 741 11 (positive test for methamphetamine), 838, 2207 (reported using meth for last 33
12 years), 2291, 2301. However, Plaintiff reported to Dr. Barnard that he began using 13 alcohol at age 8, was a regular user of marijuana and methamphetamine until the 14 age of 35, and underwent both inpatient and outpatient treatment programs. Tr.
15 749. Plaintiff also reported he was not using any substances at the time of the 16 evaluation with Dr. Barnard. Tr. 749. Presumably based on these reports and the 17 overall evaluation of Plaintiff, Dr. Barnard found Plaintiff’s impairments were not 18 the result of drug or alcohol use within the past 60 days, and Dr. Johansen noted
19 that “based on current evidence there is insufficient documentation to support a 20 primary substance abuse impairment.” Tr. 755. 21 1 The consistency of a medical opinion with the record as a whole is a relevant 2 factor in evaluating that medical opinion. See Orn, 495 F.3d at 631. However, the 3 ALJ fails to explain how Dr. Barnard and Dr. Johansen were “erroneous” in their 4 conclusion that Plaintiff did not have a substance use disorder within 60 days of
5 their evaluations; nor does the ALJ cite to any specific inconsistency between the 6 overall record and Plaintiff’s report to Dr. Barnard that he was a regular user of 7 methamphetamine and marijuana, but was not using substances at the time of the
8 evaluation. See Reddick, 157 F.3d at 725 (the ALJ must “set forth his own 9 interpretations and explain why they, rather than the doctors’, are correct.”). Thus, 10 because the ALJ failed to explain why or how Dr. Barnard and Dr. Johansen’s 11 awareness of Plaintiff’s history of substance use specifically undermines their
12 opinions, this was not a not specific, legitimate reason, supported by substantial 13 evidence, to reject Dr. Barnard and Dr. Johansen’s opinions. 14 3. Dr. Emma J. Billings, Ph.D. and Russell Anderson, MSW
15 The ALJ briefly found that “[b]ased on [his] review of the updated 16 evidentiary record, [he] continued to give little weight to the opinions of Dr. 17 Billings [and] Mr. Anderson.” Tr. 852. As an initial matter, the Court notes that in 18 the ALJ entirely fails to summarize of the the specific limitations opined by Dr.
19 Billings and Mr. Anderson. For instance, in December 2010 Dr. Billings opined 20 that Plaintiff would be unable to read any written instructions or provide any type 21 of written report, his social interaction is “highly defensive and argumentative,” he 1 “is likely to respond aggressively if he perceives himself to be criticized,” and he is 2 likely to continue to have short term labor positions due to his skill level and 3 personality difficulties. Tr. 322-30. The ALJ generally rejected Dr. Billings’ 4 opinion because (1) Plaintiff’s self-reporting of substance use to Dr. Billings was
5 “vague and inconsistent with other evidence” 1; (2) Plaintiff’s performance with 6 cognitive testing with Dr. Billings was “highly questionable, particularly in light of 7 his unimpaired cognition in treatment settings”; and (3) Plaintiff’s “recent work
8 activity as reported to Dr. Billings, along with his TOMM results, further indicate a 9 lack of reliability in [Plaintiff’s] performance with Dr. Billings’ other psychometric 10 testing.” Tr. 852. 11
1 The ALJ specifically notes that this issue was “already discussed” in ALJ Gordon 13 W. Griggs’ decision from June 2015. Tr. 852, 891. Plaintiff argues “the ALJ 14 violated the law of the case in giving the opinion less weight because [Plaintiff] 15 was not deemed sufficiently forthcoming about his substance use. The federal 16 court ruled ‘substantial evidence does not support the ALJ’s finding. There is 17 simply no evidence in this record to deduce that Plaintiff intended to deceive Dr. 18 Billings.’” ECF No. 14 at 14 (citing Tr. 429). In light of the need to remand for 19 reconsideration of all the relevant medical opinion evidence, it is unnecessary for 20 the Court to address this issue. 21 1 The consistency of a medical opinion with the record as a whole is a relevant 2 factor in evaluating that medical opinion. See Orn, 495 F.3d at 631; see also 3 Morgan, 69 F.3d at 601-02 (ALJ may discount an opinion that is inconsistent with 4 a claimant’s reported functioning). However, as above, the ALJ must do more
5 than state a conclusion; rather, the ALJ must “set forth his own interpretations and 6 explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d at 725 7 (“This can be done by setting out a detailed and thorough summary of the facts and
8 conflicting clinical evidence, stating his interpretation thereof, and making 9 findings.”). 10 As an initial matter, the ALJ entirely fails to summarize and interpret Dr. 11 Billings’ clinical findings and objective testing conducted as part of her analysis,
12 nor does he state any interpretation of those findings; thus, the ALJ’s cursory 13 rejection of Dr. Billings’ opinion is not supported by substantial evidence.2 As 14
2 Defendant offers extensive evidence from the record in support of the reasons 15 given by the ALJ for discounting Dr. Billings’ opinion. ECF No. 16 at 6-13. 16 However, the Court is not permitted to consider reasoning that was not offered by 17 the ALJ in the decision. See Bray, 554 F.3d at 1226 (the Court “review[s] the 18 ALJ's decision based on the reasoning and factual findings offered by the ALJ— 19 not post hoc rationalizations that attempt to intuit what the adjudicator may have 20 been thinking.”). 21 1 noted by Plaintiff, Dr. Billings conducted extensive objective testing and a mental 2 status examination as part of her assessment, which included findings that Plaintiff 3 was generally cooperative but highly argumentative; he had anxious affect, low 4 average range of fund of information, responses were not reflective of meanings of
5 proverbs, average memory; and he scored in the “borderline” category for 6 intellectual functioning. ECF No. 14 at 14-15, 325-30. Because the ALJ failed to 7 explain why or how an alleged “unreliability” in Plaintiff’s performance during his
8 evaluation with Dr. Billings undermines her opinion as to his cognitive and social 9 limitations, this was not a not specific, legitimate reason, supported by substantial 10 evidence, to reject Dr. Billings’ opinion. On remand, Dr. Billings’ opinion must be 11 reconsidered, and because, as noted by Plaintiff, his “primary disabling limitation
12 was related to his social interactions, which has no bearing on his cognition,” the 13 ALJ should particularly reconsider the social limitations assessed by Dr. Billings. 14 See ECF No. 14 at 14.
15 Finally, in March 2009, Mr. Anderson assessed marked limitations in 16 Plaintiff’s ability to understand, remember and follow complex instructions; learn 17 new tasks; exercise judgment and make decisions; relate appropriately to co- 18 workers and supervisors; respond appropriately to and tolerate the pressure and
19 expectations of a normal work setting; and control physical or motor movements 20 ad maintain appropriate behavior. Tr. 242-47. The ALJ rejected his opinion 21 because “[a]lthough [Plaintiff] displayed impairment in his judgment, thought 1 process, cognition, and concentration during [Mr.] Anderson’s state agency 2 evaluation shortly before his application date, examinations in subsequent 3 treatment settings have found unimpaired judgment, cognition, and concentration.” 4 Tr. 852. In support of this finding, the ALJ relied on four treatment records from
5 the adjudicatory period indicating “fair” to good judgment, no impairment of 6 intellectual functioning, normal concentration, and intact thought process. Tr. 852 7 (citing Tr. 251-52, 655, 666, 2153-54).
8 However, the Court’s review of the same treatment records cited by the ALJ 9 in support of this finding also include Plaintiff’s consistent reports that he is 10 antisocial and has thoughts of harming others; and treatment notes indicating that 11 he is nervous, guarded, agitated in mood and body movement, has poor insight,
12 and reported visual hallucinations. Tr. 251-52, 653-55, 665, 2153. Moreover, as 13 above, the ALJ appears to rely entirely on evidence of “unimpaired” cognitive 14 functioning, and fails to consider the marked social limitations opined by Mr.
15 Anderson. Reddick, 157 F.3d at 725. For all of these reasons, the ALJ’s cursory 16 rejection of Mr. Anderson’s opinion because it was inconsistent with “subsequent” 17 examinations of Plaintiff was not a specific and legitimate reason, supported by 18 substantial evidence, and his opinion must be reconsidered on remand, with
19 20 21 1 particular consideration of the marked social limitations assessed by Mr. 2 Anderson.3 3 B. Plaintiff’s Symptom Claims 4
3 The ALJ also generally noted that Mr. Anderson “did not account for” Plaintiff’s 6 substance use disorder. Tr. 853. Mr. Anderson noted no indication of alcohol or 7 drug use at the time of his evaluation, and no diagnosed conditions caused by past 8 or present alcohol or drug use; but he did consider a history of substance abuse and 9 Plaintiff’s report that he had been clean for two years at the time of the 2009 10 assessment. Tr. 243. Defendant argues the “record is replete with instances where 11 [Plaintiff’s] denial of drug use to a provider was inconsistent with his admission of 12 use to another provider.” ECF No. 16 at 17. However, the ALJ did not offer 13 specific evidence that Plaintiff misrepresented his substance use to Mr. Anderson; 14 nor does the ALJ indicate how Mr. Anderson “did not account for” the effect of a 15 “substance use disorder.” See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 16 2015) (“the agency [must] set forth the reasoning behind its decisions in a way that 17 allows for meaningful review”). Thus, to the extent that an alleged failure to 18 consider Plaintiff’s substance use was offered as a reason to reject Mr. Anderson’s 19 opinion, the Court finds it was not specific, legitimate, and supported by 20 substantial evidence. 21 1 Plaintiff also challenges the ALJ's consideration of Plaintiff’s symptom 2 claims. ECF No. 14 at 16-23. Specifically, Plaintiff alleges that the ALJ erred by 3 rejecting Plaintiff’s symptom claims because (1) “inconsistencies in [Plaintiff’s] 4 testing and [sic] finding indicates a lack of reliability”; (2) “[h]is minimal pursuit
5 of health care is otherwise inconsistent with his reported degree of psychological 6 impairment, to a degree that severely undermines his allegations of disability”; (3) 7 Plaintiff has continued to exhibit “generally normal” psychological functioning in
8 treatment settings; (4) the record includes inconsistent reports of substance use; 9 and (5) work history and activities are “inconsistent with the severe behavioral and 10 cognitive issues he has alleged during his hearings.” Tr. 848-52. Thus, because 11 the analysis of Plaintiff’s symptom claims is in large part dependent on the ALJ's
12 reconsideration of the medical evidence on remand, including Mr. Anderson’s 13 opinion that Plaintiff’s fear of treatment might impair Plaintiff’s ability to 14 cooperate with treatment, and Dr. Barnard’s note that Plaintiff refused to go to
15 Comprehensive Mental Health after experiencing an alleged bad reaction to 16 medication, the Court declines to address Plaintiff’s challenges in detail here. Tr. 17 245, 749; See Nguyen, 100 F.3d at 1465 (where the evidence suggests lack of 18 mental health treatment is part of a claimant's mental health condition, it may be
19 inappropriate to consider a claimant's lack of mental health treatment in rejecting 20 Plaintiff’s symptom claims). On remand, the ALJ is instructed to reevaluate 21 Plaintiff’s symptom claims and conduct a new sequential analysis. 1 REMEDY 2 The decision whether to remand for further proceedings or reverse and 3 award benefits is within the discretion of the district court. McAllister v. Sullivan, 4 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate
5 where “no useful purpose would be served by further administrative proceedings, 6 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 7 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by
8 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 9 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 10 district court may abuse its discretion not to remand for benefits when all of these 11 conditions are met). This policy is based on the “need to expedite disability
12 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 13 must be resolved before a determination can be made, and it is not clear from the 14 record that the ALJ would be required to find a claimant disabled if all the
15 evidence were properly evaluated, remand is appropriate. See Benecke v. 16 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 17 1179-80 (9th Cir. 2000). 18 The Court finds that further administrative proceedings are appropriate. See
19 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 20 (remand for benefits is not appropriate when further administrative proceedings 21 1 would serve a useful purpose). Here, the ALJ improperly considered the medical 2 opinion evidence, particularly as to Plaintiff’s claimed social limitations, which 3 calls into question whether the assessed RFC, and resulting hypothetical 4 propounded to the vocational expert, are supported by substantial evidence.
5 “Where,” as here, “there is conflicting evidence, and not all essential factual issues 6 have been resolved, a remand for an award of benefits is inappropriate.” Treichler, 7 775 F.3d at 1101. Instead, the Court remands this case for further proceedings. On
8 remand, the ALJ must reconsider the medical opinion evidence, with specific 9 consideration of opined social limitations, and provide legally sufficient reasons 10 for evaluating these opinions, supported by substantial evidence. If necessary, the 11 ALJ should order additional consultative examinations and, if appropriate, take
12 additional testimony from medical experts. The ALJ should also reconsider 13 Plaintiff’s symptom claims. Finally, the ALJ should reassess Plaintiff's RFC and, 14 if necessary, take additional testimony from a vocational expert which includes all
15 of the limitations credited by the ALJ. 16 ACCORDINGLY, IT IS HEREBY ORDERED: 17 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED, 18 and the matter is REMANDED to the Commissioner for additional
19 proceedings consistent with this Order. 20 /// 21 /// 1 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2 The District Court Executive is hereby directed to enter this Order and provide 3 || copies to counsel, enter judgment in favor of the Plaintiff, and CLOSE the file. 4 DATED July 8, 2020. 5 6 @. byt than ° Stanley A. Bastian 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 ORDER ~ 32