Barigian v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: June 24, 2021
• Docket: 2:20-cv-01377
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 AMANDA B., 9 Plaintiff, Case No. C20-1377-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for Supplemental Security Income. 15 Plaintiff contends the administrative law judge (“ALJ”) erred by improperly evaluating medical 16 evidence, by discounting her testimony, and by posing an incomplete hypothetical to the VE. 17 (Dkt. # 19.) As discussed below, the Court REVERSES the Commissioner’s final decision and 18 REMANDS the case for further administrative proceedings under sentence four of 42 U.S.C. § 19 405(g). 20 II. BACKGROUND 21 Plaintiff was born in 1970, has at least a high school education, and has no past relevant 22 work. AR at 28. Plaintiff applied for benefits in February 2016, alleging disability as of 23 September 1, 2012. Id. at 16. Plaintiff’s application was denied initially and on reconsideration. 24 1 The ALJ held a hearing in January 2018, taking testimony from Plaintiff and a vocational expert. 2 See id. at 37-62. In July 2018, the ALJ issued a decision finding Plaintiff not disabled. Id. at 133- 3 51. The Appeals Council remanded the decision, finding the ALJ considered medical evidence 4 “not belong[ing] to the claimant.” Id. at 154. A different ALJ held a hearing in March 2020, 5 taking testimony from Plaintiff and a vocational expert. See id. at 63-100. In April 2020, the ALJ

6 issued a decision finding Plaintiff not disabled. Id. at 13-36. In relevant part, the ALJ found 7 Plaintiff’s severe impairments of spinal impairments, hypertension, hyperthyroidism, sleep 8 apnea, obesity, depressive disorders, anxiety disorders (including post-traumatic stress disorder), 9 and substance use disorder limited her to light work subject to a series of further limitations. Id. 10 at 19-20. Based on vocational expert testimony the ALJ found Plaintiff could perform light jobs 11 found in significant numbers in the national economy. Id. at 28-29. The Appeals Council denied 12 review, making the ALJ’s decision the Commissioner’s final decision. Id. at 1-6. Plaintiff 13 appealed this final decision of the Commissioner to this Court. (Dkt. # 4.) 14 III. LEGAL STANDARDS

15 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 16 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 17 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 18 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 19 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 20 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 21 alters the outcome of the case.” Id. 22 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 23 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 24 1 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 2 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 3 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 4 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 5 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v.

6 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 7 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 8 IV. DISCUSSION 9 A. The ALJ Erred in Evaluating the Medical Evidence 10 A treating doctor’s opinion is generally entitled to greater weight than an examining 11 doctor’s opinion, and an examining doctor’s opinion is entitled to greater weight than a non- 12 examining doctor’s opinion. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). An ALJ 13 may only reject the contradicted opinion of a treating doctor by giving “specific and legitimate” 14 reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

15 1. Examining Psychologist David Widlan, Ph.D. 16 Dr. Widlan examined Plaintiff in February 2020 and opined she “suffers from chronic 17 emotional difficulties secondary to a long history of childhood sexual trauma. She is prone to 18 hyperstartle response, vigilance, and intrusive thoughts. She is prone to panic attacks as well as 19 chronic depression. She experiences alterations in mood and judgment, particularly during 20 periods of moderate stress. Her prognosis is poor. Despite extensive counseling her symptoms 21 have remained entrenched.” AR at 2605. He further opined, based in part on the mental status 22 examination he administered, she has “deficits in concentration and social reasoning,” “cannot 23 persist with adequate pace,” “would become easily overwhelmed by task demands,” cannot 24 “consistently negotiate simple social stressors on a routine basis,” “would be prone to agitation 1 and potentially paranoia,” “likely has significant deficits in ADLs outside of a basic routine,” “is 2 not able to accept appropriate supervisor criticism,” and “would be prone to an intensification of 3 her symptoms” even “if she was limited to simple, repetitive tasks.” Id. at 2606. 4 The ALJ first discounted Dr. Widlan’s opinion as inconsistent with “longitudinal 5 findings” and “treatment records documenting adequately stable psychological impairments.”

6 AR at 27. Contending this was error, Plaintiff points to numerous pages in the record 7 documenting Plaintiff’s psychological symptoms between 2016 and 2020. (See Dkt. # 19 at 5-7.) 8 The Commissioner counters Plaintiff “simply disagrees with how the ALJ assessed this 9 conflicting evidence.” (Dkt. # 20 at 4.) The Commissioner’s argument – and the ALJ’s 10 evaluation of the record – is contrary to well-settled precedent that, in the mental health context, 11 “[c]ycles of improvement and debilitating symptoms are a common occurrence, and in such 12 circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a 13 period of months or years and to treat them as a basis for concluding a claimant is capable of 14 working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014); (“Reports of ‘improvement’

15 in the context of mental health issues must be interpreted with an understanding of the patient’s 16 overall well-being and the nature of her symptoms. They must also be interpreted with an 17 awareness that improved functioning while being treated and while limiting environmental 18 stressors does not always mean that a claimant can function effectively in a workplace.”) 19 (internal citation omitted); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a 20 person who suffers from severe panic attacks, anxiety, and depression makes some improvement 21 does not mean that the person’s impairments no longer seriously affect her ability to function in a 22 workplace.”). Substantial evidence does not support the finding that Plaintiff’s psychological 23 impairments were “adequately stable.” Rather, the record reflects Plaintiff presented over the 24 1 years with psychological symptoms of varying intensity. See, e.g., AR at 509 (August 27, 2015 2 HAM-D score indicating “moderate depression”); id. at 511 (January 13, 2016 assessment 3 indicating “depression symptoms include a marked decrease in motivation”); id. at 2276 4 (November 28, 2018 treatment note indicating Plaintiff “presented as tearful and dysregulated to 5 multiple stressors with children”); id. at 2221 (June 3, 2019 treatment note indicating Plaintiff

6 feels “overwhelm[ed] and helpless[]”); id. at 2203 (July 22, 2019 treatment note indicating 7 Plaintiff stated, “I want to die and go to heaven where it’s peaceful”); id. at 2589 (February 24, 8 2020 treatment note indicating Plaintiff is “feeling overwhelmed and anxious”). The ALJ 9 accordingly erred by discounting Dr. Widlan’s opinion on this ground. 10 The ALJ also discounted Dr. Widlan’s opinion as inconsistent with Plaintiff’s “consistent 11 reports of maintaining a schedule of childcare activities that include driving them to school and 12 appointments thorough [sic] the week, performing household chores and shopping on a reliable 13 basis, and reading when she has time for herself.” AR at 27. However, the ALJ’s finding that 14 Plaintiff engaged in childcare activities is not, in this context, a valid reason to discount Dr.

15 Widlan’s opinion. See Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) (“[T]he record 16 provides no details as to what Trevizo’s regular childcare activities involved. The ALJ did not 17 develop a record regarding the extent to which and the frequency with which Trevizo picked up 18 the children, played with them, bathed them, ran after them, or did any other tasks that might 19 undermine her claimed limitations[.]”). Indeed, the record indicates Plaintiff’s childcare 20 activities overwhelmed her and one of her therapy goals was to “[f]ight less with children” and 21 “have a calm, loving home.” AR at 2222; see also id. at 2215 (June 17, 2019 treatment note 22 indicating Plaintiff “reports severely interrupted sleep and heightened levels of stress due to 23 chronic crisis with adult children.”); id. at 2595 (February 3, 2020 treatment note indicating 24 1 Plaintiff “got overwhelmed taking care of her kids”). Similarly, Plaintiff’s minimal activity of 2 reading is neither inconsistent with nor a valid reason to discount Dr. Widlan’s opinion. See 3 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Several courts, including this one, have 4 recognized that disability claimants should not be penalized for attempting to lead normal lives 5 in the face of their limitations.”). The ALJ accordingly erred by discounting Dr. Widlan’s

6 opinion. 7 2. Mental Health Providers Heather Kranz, MA and Deborah Gaebler, ARNP 8 Ms. Kranz and ARNP Gaebler completed DSHS disability condition forms for Plaintiff 9 in January 2018 and August 2018, respectively, and opined Plaintiff’s “depression symptoms 10 include a marked decrease in motivation and ability to carry out basic tasks.” AR at 511, 1474. 11 They further opined Plaintiff “has difficulty keeping appointments and completing jobs due to 12 anxiety and feelings of worthlessness,” has “problems concentrating and retaining information,” 13 and “is overwhelmed easily, at which point she will shut down and be unable to complete tasks 14 that she was working on.” Id. 15 The ALJ first discounted Ms. Kranz and ARNP Gaebler’s opinions because they “made 16 no references to objective evidence.” AR at 26. This is not a valid ground to discount an opinion 17 concerning mental impairments: 18 Courts have recognized that a psychiatric impairment is not as readily 19 amenable to substantiation by objective laboratory testing as is a medical impairment and that consequently, the diagnostic techniques employed in the 20 field of psychiatry may be somewhat less tangible than those in the field of medicine. In general, mental disorders cannot be ascertained and verified as 21 are most physical illnesses, for the mind cannot be probed by mechanical devises in order to obtain objective clinical manifestations of mental illness. 22 Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981). The record indicates both opinions were 23 based on clinical observations and does not indicate either provider found Plaintiff to be 24 1 untruthful. Therefore, this is no evidentiary basis for rejecting the opinions. Cf. Ryan v. Comm’r 2 of Soc. Sec., 528 F.3d 1194, 1199–200 (9th Cir. 2008) (“an ALJ does not provide clear and 3 convincing reasons for rejecting an examining physician’s opinion by questioning the credibility 4 of the patient’s complaints where the doctor does not discredit those complaints and supports his 5 ultimate opinion with his own observations”). The ALJ accordingly erred by discounting the

6 opinions on this ground. 7 The ALJ also discounted the opinions as inconsistent with the longitudinal record and 8 Plaintiff’s activities. AR at 26. Because the ALJ erred in rejecting Dr. Widlan’s opinion on these 9 grounds, as discussed above, he necessarily erred in relying on these grounds to discount the 10 opinions of Ms. Kranz and ARNP Gaebler. 11 3. Examining Psychologist David Mashburn, Ph.D. 12 Dr. Mashburn examined Plaintiff in August 2015 and August 2019. In 2015, Dr. 13 Mashburn opined Plaintiff had “marked” depression, moderate limits maintaining attendance, 14 performing routine tasks, adapting to changes, making simple work-related decisions, and asking

15 simple questions, and marked limits communicating and performing effectively in a work 16 setting, maintaining appropriate behavior in a work setting, and completing a normal 17 workday/workweek. AR at 505-506. In 2019, Dr. Mashburn opined Plaintiff had “marked 18 depression” and moderate limits making simple work-related decisions, communicating and 19 performing effectively in a work setting, and completing a normal workday/workweek. Id. at 20 2546-47. 21 The ALJ discounted Dr. Mashburn’s opinions as inconsistent with the longitudinal record 22 and Plaintiff’s activities. AR at 26. Because the ALJ erred in rejecting the opinions of Dr. 23 Widlan, Ms. Kranz, and ARNP Gaebler on these grounds, as described above, he necessarily 24 erred in relying on these grounds to reject Dr. Mashburn’s opinions. 1 4. State Agency Consultants Renee Eisenhauer, Ph.D. and Steven Haney, M.D. 2 In their assessment of Plaintiff’s medical records, Drs. Eisenhauer and Haney reviewed 3 the evaluations of Jason Davis, PA-C and Christina Diamonti, Psy.D. See AR at 104, 121. The 4 Appeals Council previously indicated, however, Mr. Davis and Dr. Diamonti’s records “did not 5 belong to the claimant and have been removed from this claimant’s medical evidence of record.” 6 Id. at 154. The Appeals Council instructed the ALJ to “rely[] only on evidence belonging to the 7 claimant.” Id. Nevertheless, the ALJ erroneously gave “significant weight” to the opinions of 8 Drs. Eisenhauer and Haney, who opined Plaintiff “could understand and concentrate on routine 9 repetitive instructions, with the ability to sustain a normal workweek even with the effects of 10 substance abuse” and “work with predictable work routine changes.” Id. at 27. The 11 Commissioner argues “the ALJ credited Dr. Eisenhauer and Haney’s opinions because they were 12 consistent with the evidence the ALJ discussed—not because they considered Dr. Diamonti and 13 PA-C Davis’s opinion.” (Dkt. # 20 at 3.) However, the ALJ did not explicitly disclaim that he 14 walled off Mr. Davis and Dr. Diamonti’s records, and the Court is not in a position to factually 15 determine whether or to what extent these records informed any part of the ALJ’s decision. 16 Because, at bottom, the ALJ relied upon medical records of another claimant, the ALJ harmfully 17 erred. 18 5. Evidence Relating to Sleep Apnea 19 The ALJ found the medical record “document[s] adequately controlled sleep apnea[.]” 20 AR at 22. Plaintiff argues the ALJ erred by failing to mention an October 2019 chart note. (Dkt. 21 # 19 at 7-8.) The October 2019 chart note, which assessed “[c]omplex sleep apnea” and “[s]evere 22 obstructive sleep apnea,” indicates abnormal results during the periods of April 2019 – May 23 2019 and August 2019 – October 2019, AR at 2569-70. However, this singular piece of the 24 1 record does not undermine the ALJ’s longitudinal assessment that Plaintiff failed to comply with 2 her CPAP treatment, notwithstanding its benefit. Id. at 22 (“Her complaints of severe fatigue are 3 incompatible with her non-compliance with beneficial treatment for sleep apnea.… In September 4 2018, although she reported no significant benefit from ongoing CPAP therapy, data from her 5 machine found a normal AHI of less than five events per hour.”); see Wellington v. Berryhill,

6 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical treatment successfully relieving 7 symptoms can undermine a claim of disability.”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 8 2007) (“Our case law is clear that if a claimant complains about disabling pain but fails to seek 9 treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a 10 basis for finding the complaint unjustified or exaggerated.”). Plaintiff invites a different reading 11 of the record, but fails to demonstrate the ALJ unreasonably interpreted it. The ALJ accordingly 12 did not err in assessing Plaintiff’s sleep apnea. 13 B. The ALJ Erred by Discounting Plaintiff’s Testimony 14 The ALJ found Plaintiff presented objective medical evidence establishing underlying

15 impairments that could cause the symptoms alleged and made no finding she was malingering. 16 AR at 21. The ALJ was thus required to provide “specific, clear, and convincing” reasons 17 supported by substantial evidence to discount Plaintiff’s testimony. Trevizo v. Berryhill, 871 F.3d 18 664, 678 (9th Cir. 2017). Plaintiff contends the ALJ erroneously discounted Plaintiff’s testimony 19 concerning her mental impairments. (Dkt. #19 at 2, 8-10.) 20 The ALJ first discounted Plaintiff’s testimony as inconsistent with the medical record. Id. 21 at 21-23. However, because the ALJ erred in assessing critical medical evidence, as discussed 22 above, this is not a valid ground to discount Plaintiff’s testimony. The ALJ also discounted 23 Plaintiff’s testimony as inconsistent with her childcare activities. Id. at 23-24. As discussed 24 1 above, the ALJ did not sufficiently develop the record with respect to Plaintiff’s caretaking of 2 her children. Further, the other minimal activities the ALJ cites, such as reading, do not undercut 3 Plaintiff’s claims. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has 4 repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such 5 as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract

6 from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in 7 order to be disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); Cooper v. 8 Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting that a disability claimant need not “vegetate in 9 a dark room” in order to be deemed eligible for benefits). The ALJ accordingly erred by 10 discounting Plaintiff’s testimony. 11 C. Scope of Remand 12 This case must be remanded because the ALJ harmfully misevaluated the medical 13 evidence and Plaintiff’s testimony.1 Plaintiff contends the Court should remand for an immediate 14 award of benefits. Such a remand should be granted only in a rare case and this is not such a

15 case. The medical opinions and Plaintiff’s testimony must be reweighed and this is a function the 16 Court cannot perform in the first instance on appeal. Further proceedings are thus not only 17 helpful but necessary. 18 V. CONCLUSION 19 For the foregoing reasons, the Commissioner’s final decision is REVERSED, and this 20 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. 21

22 1 Because the ALJ misevaluated the medical evidence and Plaintiff’s testimony, the ALJ will necessarily need to determine whether the RFC needs to be adjusted. For this reason, the Court need not reach 23 Plaintiff’s assignment of error regarding vocational expert testimony. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“[I]f it is not necessary to decide more, it is necessary not to decide 24 more.”) (Roberts, J., concurring in part and concurring in the judgment). 1 § 405(g). On remand, the ALJ shall reevaluate the opinions of Dr. Widlan, Ms. Kranz, ARNP 2 Gaebler, and Dr. Mashburn, reassess Plaintiff’s testimony, develop the record and redetermine 3 the RFC as needed, and proceed to the remaining steps as appropriate. 4 Dated this 24th day of June, 2021. 5 A 6 MICHELLE L. PETERSON United States Magistrate Judge 7

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