Bradford v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: November 16, 2020
• Docket: 2:19-cv-01298
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JAMES B., Case No. C19-1298 TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of defendant’s denial of his 13 June 8, 2016 application for supplemental security income benefits.1 The parties have 14 consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 15 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. 16 Plaintiff alleged a disability onset date of July 1, 1995. AR 28. The ALJ found that 17 plaintiff had severe impairments of posttraumatic stress disorder, depressive disorder, 18 opiate use disorder in early remission, alcohol use disorder in early remission, and right 19 hand arthritis. AR 16. But the ALJ found (at step five of the sequential evaluation) that 20 plaintiff was not disabled. AR 27-28. 21 22

23 1 Plaintiff also filed an application for disability insurance benefits, but that application is not before the Court, since plaintiff amended his alleged disability onset date to June 8, 2016 -- after his date last 24 insured. See AR 13; Pl. Op. Br. (Dkt. # 10) at 1 n.1. 1 I. ISSUES FOR REVIEW 2 1. Whether the ALJ harmfully erred in rejecting plaintiff’s testimony. 3 2. Whether the ALJ harmfully erred in rejecting the opinions of examining 4 psychologists William Wilkinson, Ed.D., Richard Washburn, Ph.D., and David Widlan,

5 Ph.D. 6 II. DISCUSSION 7 The Court will uphold an ALJ’s decision unless: (1) the decision is based on legal 8 error, or (2) the decision is not supported by substantial evidence. Ford v. Saul, 950 9 F.3d 1141, 1153–54 (9th Cir. 2020) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 10 (9th Cir. 2008)). Substantial evidence is “‘such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 12 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 13 This requires “more than a mere scintilla,” of evidence. Id. The Court must consider the 14 administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

15 2014). It must weigh both the evidence that supports, and evidence that does not 16 support, the ALJ’s conclusion. Id. 17 The Court considers in its review only the reasons the ALJ identified and may not 18 affirm for a different reason. Id. at 1010. Furthermore, “[l]ong-standing principles of 19 administrative law require us to review the ALJ’s decision based on the reasoning and 20 actual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 21 what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 22 F.3d 1219, 1225–26 (9th Cir. 2009) (citations omitted). 23

24 1 A. The ALJ Harmfully Erred in Discounting Plaintiff’s Testimony 2 In weighing a plaintiff’s testimony, an ALJ must use a two-step process. Trevizo 3 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether 4 there is objective medical evidence of an underlying impairment that could reasonably

5 be expected to produce some degree of the alleged symptoms. Ghanim v. Colvin, 763 6 F.3d 1154, 1163 (9th Cir. 2014). If the first step is satisfied and there is no evidence of 7 malingering, the second step allows the ALJ to reject the claimant’s testimony of the 8 severity of symptoms if the ALJ provides specific findings and clear and convincing 9 reasons for rejecting the claimant’s testimony. Id. 10 Plaintiff testified he has pain in his ankle and wrist that prevents him from 11 working. See AR 49–50, 54, 271, 276. He testified he “probably could” stand and walk 12 for eight hours in an eight-hour day. AR 50. He testified he could not use his right wrist 13 at all during an eight-hour day. See AR 50–51, 276. Plaintiff testified he worked at a 14 warehouse for two days stacking six packs of pop on pallets, but was only able to do it

15 because he was taking oxycodone. AR 51–52. Plaintiff testified he has trouble 16 remembering things and focusing due to anxiety. See AR 53–56, 271, 277. 17 The ALJ found plaintiff’s medically determinable impairments could cause some 18 of the symptoms he alleged. AR 19. The ALJ determined, however, that plaintiff’s 19 testimony regarding the severity of his symptoms was “not entirely consistent with the 20 medical evidence and other evidence in the record.” Id. The ALJ determined plaintiff’s 21 testimony was inconsistent with the medical record and undermined by inconsistencies 22 in his statements. AR 20–21. 23

24 1 The ALJ, addressing plaintiff’s claims of mental impairment, rejected plaintiff’s 2 testimony because he received little treatment and endorsed only mild symptoms. AR 3 20. The ALJ erred in reaching these conclusions. First, the Ninth Circuit has “particularly 4 criticized the use of a lack of treatment to reject mental complaints because mental

5 illness is notoriously underreported and because ‘it is a questionable practice to 6 chastise one with a mental impairment for the exercise of poor judgment in seeking 7 rehabilitation.’” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–1300 8 (9th Cir. 1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). 9 Second, the ALJ failed to identify what further mental health treatment plaintiff 10 would be expected to receive if his symptoms were as severe as alleged. As the ALJ 11 acknowledged, plaintiff took medication for his mental symptoms throughout the alleged 12 disability period. See AR 20. And the ALJ has not identified anything in the record 13 showing plaintiff was advised to seek more frequent counseling. Because an ALJ is not 14 qualified as a medical expert, they are not allowed to consider medical knowledge that

15 exists outside the record and make an independent medical exploration and 16 assessment as to the condition of a claimant. Day v. Weinberger, 522 F.2d 1154, 1156 17 (9th Cir. 1975). The ALJ lacked substantial evidence from which to conclude plaintiff 18 should have had further treatment if his conditions were as severe as alleged. 19 Third, the ALJ did not accurately represent the record when stating plaintiff 20 reported only mild symptoms. See AR 20. An ALJ “cannot simply pick out a few isolated 21 instances” of medical health that support his conclusion, but must consider those 22 instances in the broader context “with an understanding of the patient’s overall well- 23 being and the nature of [his] symptoms.” Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir.

24 1 2016). Plaintiff endorsed mild mental health symptoms on the one occasion the ALJ 2 cited. See AR 20, 645–47. But plaintiff endorsed moderate and more substantial 3 symptoms on multiple other occasions. See, e.g., AR 450, 456, 596, 608, 613, 616, 4 629, 635–37, 696, 699, 702, 704. The ALJ thus erred in rejecting plaintiff’s allegations of

5 mental impairment based on his receipt of minimal treatment and endorsement of only 6 mild symptoms. 7 Addressing plaintiff’s claims of physical impairment, the ALJ rejected plaintiff’s 8 testimony because he had “not availed himself of [non-narcotic] treatment options 9 despite being referred to orthopedics on multiple occasions,” and he had been able to 10 perform some work activity, such as dishwashing and janitor work. AR 20. 11 The ALJ erred in rejecting plaintiff’s claims of physical impairment based on 12 failure to follow through with non-narcotic treatment. An ALJ may reject a claimant’s 13 testimony based on failure to seek or comply with treatment -- but must consider any 14 proffered reasons for not doing so. See Molina v. Astrue, 674 F.3d 1104, 1113–14 (9th

15 Cir. 2012). The ALJ’s primary focus here was on plaintiff’s failure to have surgery on his 16 wrist. See AR 20. The record shows the plaintiff’s wrist fracture dates back to at least 17 August 2013. AR 437. Plaintiff went back and forth on whether to have surgery on his 18 wrist because he was told it would permanently limit mobility in his wrist. See AR 777, 19 786. The ALJ did not address this, and thus erred in rejecting plaintiff’s claims of wrist 20 impairment based on failure to follow through with non-narcotic treatment. 21 The ALJ further erred in rejecting plaintiff’s physical symptom testimony based on 22 his work as a dishwasher and janitor. Although such work could potentially contradict 23 plaintiff’s testimony, the ALJ did not address the length and type of work plaintiff

24 1 performed, and the record does not contain that information. See AR 45. The ALJ’s 2 determination that plaintiff’s testimony was contradicted by his work as a dishwasher 3 and janitor is thus not supported by substantial evidence in the record, and the ALJ 4 erred. See Trevizo, 871 F.3d at 676 (holding the ALJ erred when rejecting claimant’s

5 testimony based on childcare activities when there was “almost no information in the 6 record about Trevizo’s childcare activities”). 7 The ALJ also rejected plaintiff’s overall symptom testimony based on 8 inconsistencies in plaintiff’s statements throughout the record. AR 20–21. The 9 inconsistences identified are not clear and convincing, however, particularly in light of 10 plaintiff’s mental illness, and the ALJ’s other errors in evaluating plaintiff’s testimony. 11 See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (holding that “one weak 12 reason,” even if supported by substantial evidence, “is insufficient to meet the ‘specific, 13 clear and convincing’ standard” for rejecting a claimant’s testimony) (quoting Molina, 14 674 F.3d at 1112). The ALJ identified one inconsistent statement regarding whether

15 plaintiff attended special education, a fact with marginal relevance to plaintiff’s 16 allegations of impairment. See AR 264. The ALJ noted some discrepancies in plaintiff’s 17 reporting of alcohol and drug use, but none so obvious as to show clear contradiction, 18 or to cast doubt on the cause of plaintiff’s impairments. See AR 561, 580, 639, 699, 19 714–15, 783, 816, 819–20. The ALJ lastly misstated plaintiff’s testimony regarding his 20 relationship with his fiancée. Plaintiff testified his fiancée had cancer, but he did not 21 know what kind or what limitations it caused. See AR 39–42. Plaintiff did not testify he 22 took care of his fiancée, so whether she had cancer, and whether plaintiff knew what 23 type of cancer it was, is of marginal relevance. See id.

24 1 In sum, the ALJ failed to give clear and convincing reasons for rejecting plaintiff’s 2 testimony regarding the severity of his mental and physical symptoms. The ALJ 3 therefore harmfully erred. 4 B. The ALJ Partially Erred in Evaluating the Medical Evidence

5 An ALJ must provide “clear and convincing” reasons for rejecting an examining 6 doctor’s uncontradicted opinions. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). 7 When the doctor’s opinions are contradicted, the ALJ must provide “specific and 8 legitimate reasons” for rejecting them. Id. at 830–31. The opinions of Dr. Wilkinson, Dr. 9 Washburn, and Dr. Widlan are partly contradicted by the opinions of John Gilbert, 10 Ph.D., and Carla Van Dam, Ph.D., so the specific and legitimate standard applies. See 11 AR 87–88, 107. 12 1. The ALJ Partially Erred in Rejecting Dr. Wilkinson’s Opinions 13 a. The ALJ Reasonably Rejected Dr. Wilkinson’s February 2010 Opinions 14 Dr. Wilkinson first examined plaintiff in February 2010. See AR 595–606. Dr. 15 Wilkinson did not review any medical records as part of his evaluation. AR 595. Dr. 16 Wilkinson opined plaintiff had mild to moderate limitations in most areas of cognitive and 17 social functioning. See AR 598. But he opined plaintiff’s limitations would only last three 18 months. AR 599. 19 The ALJ gave Dr. Wilkinson’s February 2010 opinions little weight. AR 23. The 20 ALJ noted Dr. Wilkinson’s opinions would only be in effect for three months maximum, 21 and vocational training may minimize or eliminate plaintiff’s employment barriers. Id. 22 The ALJ further reasoned these opinions were inconsistent with longitudinal record, 23 they were based on only one brief examination, Dr. Wilkinson did not review any 24 1 records prior to offering his opinions, and he was not an expert in Social Security 2 disability evaluations. See id. 3 The ALJ did not err in rejecting Dr. Wilkinson’s February 2010 opinions based on 4 their very limited duration. An ALJ may reject an examining doctor’s opinions when it

5 does not address the claimant’s long-term functioning. See Carmickle v. Comm’r, Soc. 6 Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). 7 The ALJ’s other reasons are erroneous, but are harmless. “[A]n error is harmless 8 so long as there remains substantial evidence supporting the ALJ’s decision and the 9 error ‘does not negate the validity of the ALJ’s ultimate conclusion.’” See Molina v. 10 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (quoting Batson v. Comm’r of Soc. Sec. 11 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). Whether or not Dr. Wilkinson’s opinions 12 are inconsistent with the medical evidence does not change the fact that his opinions 13 rendered in February 2010 were limited to a three-month period. The ALJ therefore did 14 not harmfully err in rejecting these opinions.

15 b. The ALJ Erred by Rejecting Dr. Wilkinson’s November 2010 Opinions, Citing Reasons Unsupported by Substantial Evidence 16 Dr. Wilkinson examined plaintiff again in November 2010. See AR 615–25. Dr. 17 Wilkinson again reported he did not review any medical records. AR 615. He opined 18 plaintiff had moderate limitations in all areas of cognitive and social functioning. See AR 19 618–19. Dr. Wilkinson opined plaintiff’s limitations would last for six months. AR 618. 20 The ALJ rejected Dr. Wilkinson’s November 2010 opinions because “even 21 considering Dr. Wilkinson’s [February 2010] opinion, Dr. Wilkinson only opined a total of 22 nine months total for limitations, which is not fully consistent with the longitudinal record 23 showing problems last for at least twelve months in duration during the period at issue.” 24 1 See AR 24. The ALJ further rejected Dr. Wilkinson’s opinions because he “did not 2 review any collateral objective medical evidence prior to offering his November 2010 3 opinions.” Id. 4 The ALJ’s first reason for rejecting Dr. Wilkinson’s opinions fails because it does

5 not establish what is inaccurate about the functional limitations stated. The ALJ 6 essentially stated the overall record showed the limitations to which Dr. Wilkinson 7 opined would last longer than the time Dr. Wilkinson opined. Rejecting the time 8 limitation was not a specific and legitimate reason to discount the doctor’s functional 9 limitation opinions, because the ALJ did not have substantial evidence upon which to 10 base this reason. Because the ALJ’s explanation did not provide a supported reason for 11 rejecting Dr. Wilkinson’s November 2010 opinions regarding plaintiff’s functioning, the 12 ALJ erred. 13 The ALJ further erred in rejecting Dr. Wilkinson’s November 2010 opinions on the 14 basis that he failed to review any collateral objective medical evidence prior to offering

15 his opinions. The ALJ has not identified what other evidence Dr. Wilkinson should have 16 reviewed that may have undermined or contradicted his conclusions. See AR 24. The 17 reviewing court is not required to “comb the administrative record” to find evidentiary 18 conflicts. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). The ALJ therefore failed 19 to give specific and legitimate reasons for rejecting Dr. Wilkinson’s November 2010 20 opinions. The ALJ thus harmfully erred in rejecting those opinions. 21 2. The ALJ Did Not Harmfully Err in Rejecting Dr. Washburn’s Opinions 22 Dr. Washburn examined plaintiff in May 2010. See AR 607–14. Dr. Washburn 23 reviewed Dr. Wilkinson’s February 2010 exam, but did not review any other records. AR

24 1 607. Dr. Washburn opined plaintiff was markedly limited in his abilities to: Appropriately 2 relate to coworkers and supervisors; appropriately respond to and tolerate the 3 pressures of a normal work setting; and maintain appropriate behavior in such a setting. 4 AR 610. Dr. Washburn opined these limitations would persist for six years. AR 611.

5 The ALJ rejected Dr. Washburn’s opinions because they were not fully supported 6 by or inconsistent with the overall medical evidence and Dr. Washburn’s own findings. 7 AR 23. The ALJ further reasoned Dr. Washburn performed only one brief exam, did not 8 review any records other than Dr. Wilkinson’s February 2010 opinions, and was not an 9 expert in social security disability evaluations. Id. 10 The ALJ did not err in rejecting Dr. Washburn’s opinions as not fully supported by 11 his exam findings. An ALJ may discount a doctor’s opinions when they are inconsistent 12 with or unsupported by the doctor’s own clinical findings. See Tommasetti v. Astrue, 533 13 F.3d 1035, 1041 (9th Cir. 2008). As the ALJ noted, plaintiff demonstrated adequate 14 abstract reasoning and fair practical judgment—as well as adequate auditory

15 concentration, adequate ability to follow directions, and average intelligence—but Dr. 16 Washburn opined plaintiff did not have adequate coping skills for employment. See AR 17 23, 614. Absent an explanation from Dr. Washburn, the ALJ reasonably concluded 18 plaintiff’s relatively normal performance on exam did not support Dr. Washburn’s 19 opinions of marked limitations. 20 Much like the ALJ’s analysis of Dr. Wilkinson’s opinions, the ALJ’s analysis of Dr. 21 Washburn’s opinions was not free from error, but those errors were harmless. See 22 Molina, 674 F.3d at 1115. Dr. Washburn’s opinions were not supported by his own 23 exam findings regardless of the fact that, for example, the ALJ erroneously rejected Dr.

24 1 Washburn’s opinions as based on a single exam. The ALJ therefore did not harmfully 2 err in rejecting Dr. Washburn’s opinions. 3 3. The ALJ Did Not Harmfully Err in Rejecting Dr. Widlan’s Opinions 4 Dr. Widlan examined plaintiff in September 2014. See AR 626–37. Dr. Widlan

5 noted he did not review any medical records as part of his examination. AR 626. Dr. 6 Widlan opined plaintiff had marked limitations in his ability to adapt to changes in a 7 routine work setting, communicate and perform effectively in a work setting, and 8 complete a normal workday and week without interruptions from his psychologically 9 based symptoms. AR 628. Dr. Widlan opined these limitations would last six to 12 10 months. Id. 11 Dr. Widlan examined plaintiff again in June 2016. See AR 638–47. Dr. Widlan 12 again reported he did not review any records, other than his own September 2014 13 evaluation. AR 628. He opined plaintiff had the same marked limitations as he had in 14 September 2014. See AR 640.

15 The ALJ rejected Dr. Widlan’s opinions from both of his exams. See AR 24–25. 16 The ALJ reasoned these opinions were inconsistent with the longitudinal evidence and 17 Dr. Widlan’s own exam findings. Id. The ALJ further reasoned Dr. Widlan’s opinions 18 were based on a one-time exam, and relied too heavily on plaintiff’s self-reports. Id. The 19 ALJ last rejected Dr. Widlan’s opinions because he was not an expert in social security 20 disability evaluations. Id. 21 The ALJ did not err in rejecting Dr. Widlan’s opinions as not fully supported by his 22 own exam findings. See Tommasetti, 533 F.3d at 1041. As with Dr. Washburn, the ALJ 23 noted Dr. Widlan’s findings on exam in 2014 and 2016 showed relatively normal

24 1 functioning, including normal memory, concentration, abstract reasoning. See AR 24, 2 629–30, 641–42. Without some explanation from Dr. Widlan as to what else in his 3 exams supported marked limitations, the ALJ reasonably concluded Dr. Widlan’s 4 opinions were inadequately supported by his own exam findings.

5 The ALJ’s analysis was not free from error, but these errors were harmless. See 6 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). Dr. Widlan’s opinions were not 7 supported by his exam findings even though the ALJ erroneously rejected Dr. Widlan’s 8 opinions based on his alleged lack of expertise with social security disability 9 evaluations. The ALJ therefore did not harmfully err in rejecting Dr. Widlan’s opinions. 10 C. Remand with Instructions for Further Proceedings 11 Plaintiff asks the Court to remand this matter for further administrative 12 proceedings. Dkt. # 10 at 15. “‘The decision whether to remand a case for additional 13 evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo v. 14 Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226,

15 1232 (9th Cir. 1987)). The Court agrees remand for further proceedings is the 16 appropriate remedy. 17 On remand, the ALJ shall reevaluate plaintiff’s testimony regarding the severity of 18 his physical and mental symptoms, and reevaluate Dr. Wilkinson’s November 2010 19 opinions. The ALJ shall conduct all further proceedings necessary to reevaluate the 20 disability determination in light of this opinion. 21 22 23

24 1 II. CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ erred when he 3 determined plaintiff to be not disabled. Defendant’s decision to deny benefits therefore 4 is REVERSED and this matter is REMANDED for further administrative proceedings.

5 Dated this 16th day of November, 2020. 6 7 A 8 Theresa L. Fricke 9 United States Magistrate Judge

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