Bunch v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 7, 2022
• Docket: 2:21-cv-00462
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 STEPHANIE B, CASE NO. 2:21-CV-462-DWC 11 Plaintiff, 12 v. ORDER REVERSING AND 13 COMMISSIONER OF SOCIAL REMANDING DEFENDANT’S SECURITY, DECISION TO DENY BENEFITS 14 Defendant.

16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 17 Defendant’s denial of his application for supplemental security income (SSI). The parties have 18 consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c); Fed. R. 19 Civ. P. 73; and Local Magistrate Judge Rule MJR 13. 20 BACKGROUND 21 Plaintiff filed her claim for benefits in January 2018, alleging she became disabled 22 August 1, 2017. Administrative Record (AR) 223. Plaintiff’s claim was denied initially (AR 14) 23 and upon reconsideration (AR 130). A hearing was held before an Administrative Law Judge 24 1 (ALJ) in March 2020 (AR 43-73) and on March 25, 2020 the ALJ denied Plaintiff’s claim (AR 2 37). The Appeals Council denied Plaintiff’s request for review on February 2, 2021, making the 3 ALJ’s decision final. AR 93; 20 C.F.R. §§ 404.981, 416.1481. 4 On appeal to this Court, Plaintiff maintains the ALJ erred by erroneously discrediting

5 some of Plaintiff’s subjective symptom allegations and improperly rejecting some medical 6 evidence. Dkt. 13 at 1. In addition, Plaintiff argues that her administrative proceedings were 7 “tainted” by the unconstitutional appointment of the then-Commissioner of Social Security. Id. at 8 14. 9 THE ALJ’s FINDINGS 10 The ALJ found Plaintiff had the severe impairments of depressive disorder, anxiety 11 disorder, attention deficit hyperactivity disorder, fibromyalgia, and obesity. AR 20. Although the 12 record contained evidence that Plaintiff worked since her alleged onset date of disability, the 13 ALJ determined this work did not constitute substantial gainful activity. Id. The ALJ also 14 determined that Plaintiff had the residual functional capacity (RFC) to perform light work as

15 defined in 20 CFR 416.967(b), limited by no climbing of ladders, ropes, or scaffolds; no 16 crawling; only occasional balancing, stooping, kneeling, or crouching; no concentrated exposure 17 to excessive vibration, pulmonary irritants, or hazards; and only simple, routine tasks with no 18 more than superficial interaction with co-workers, no activities requiring teamwork, and no 19 contact with the general public. AR 22. A vocational expert testified that a person with this RFC, 20 age, education, and work experience would be capable of performing work as a small products 21 assembler, agricultural produce sorter, and marker—all jobs existing in substantial numbers in 22 the national economy. AR 36. Consequently, the ALJ determined that Plaintiff was not disabled 23 during the period under review. AR 37.

24 1 STANDARD OF REVIEW 2 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 3 social security benefits if the ALJ’s findings are based on legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th

5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). However, the 6 Commissioner’s decision must be affirmed if it is supported by substantial evidence and free of 7 harmful legal error. 42 U.S.C. § 405(g); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 8 2008). 9 Substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r of 10 Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). The U.S. Supreme Court describes it as 11 “more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “It means—and 12 means only—such relevant evidence as a reasonable mind might accept as adequate to support a 13 conclusion.” Id. (internal quotations omitted). 14 DISCUSSION

15 Plaintiff claims the ALJ improperly discredited the opinions of Anselm Parlatore, M.D., 16 and Jenna Yun, Ph.D., (Dkt. 13 at 12), as well as Nurse Practitioner Patricia Leckenby (Id. at 17 13). This Court concurs. 18 I. Standard 19 The regulations regarding evaluation of medical evidence have been amended for claims 20 protectively filed on or after March 27, 2017, such as this one. See 20 C.F.R. §§ 404.1520c(c), 21 416.920c(c). In the new regulations, the Commissioner rescinded Social Security Regulation 22 (SSR) 06-03p and broadened the definition of acceptable medical sources to include Advanced 23 Practice Registered Nurses (such as nurse practitioners), audiologists, and physician assistants.

24 1 See 20 C.F.R. §§ 404.1502, 416.902; 82 F. Reg. 8544; 82 F. Reg. 15263. The Commissioner also 2 clarified that all medical sources, not just acceptable medical sources, can provide evidence that 3 will be considered medical opinions. See 20 C.F.R. §§ 404.1502, 416.902; 82 F. Reg. 8544; 82 F. 4 Reg. 15263.

5 Additionally, the new regulations state the Commissioner “will no longer give any 6 specific evidentiary weight to medical opinions; this includes giving controlling weight to any 7 medical opinion.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 8 168819, 82 Fed. Reg. 5844, at 5867-68 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c (a), 9 416.920c(a). Instead, the Commissioner must consider all medical opinions and “evaluate their 10 persuasiveness” based on supportability, consistency, relationship with the claimant, 11 specialization, and other factors. 20 C.F.R. §§ 404.152c(c); 416.920c(c). The most important 12 factors are supportability and consistency. 20 C.F.R. §§ 404.152c(a), (b)(2); 416.920c(a), (b)(2). 13 Although the regulations eliminate the “physician hierarchy,” deference to specific 14 medical opinions, and assigning “weight” to a medical opinion, the ALJ must still “articulate

15 how [he] considered the medical opinions” and “how persuasive [he] find[s] all of the medical 16 opinions.” 20 C.F.R. §§ 404.1520c(a), (b)(1); 416.920c(a), (b)(1). The ALJ is specifically 17 required to “explain how [he] considered the supportability and consistency factors” for a 18 medical opinion. 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2). 19 The Ninth Circuit has not yet had the opportunity to address the impact of the new 20 regulations on the requirement that the ALJ provide “clear and convincing” reasons for rejecting 21 an uncontradicted physician’s opinion and “specific and legitimate reasons” for rejecting a 22 contracted physician’s opinion. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). However, 23 Chief Judge Ricardo S. Martinez has opined that he believes the Ninth Circuit will not likely

24 1 alter the “clear and convincing” standard because it is “based on evidentiary principles in 2 administrative law, and not on a hierarchy of opinions.” Kathleen G. v. Comm. Soc. Sec., No. 3 2:20-cv-461-RSM (W.D. Wash. Nov. 10, 2020) (citing Day v. Weinberger, 522 F.2d 1154, 1156 4 (9th Cir. 1975) and White Glove Building Maintenance, Inc. v. Brennan, 518 F.2d 1271 (9th Cir.

5 1975)). 6 Thus, while the new regulations ask the ALJ to explain, at a minimum, how the ALJ 7 considered the supportability and consistency factors of a medical opinion, if the medical opinion 8 is uncontradicted the ALJ must still cite “clear and convincing” reasons for rejecting it, and if it 9 is contradicted, the ALJ must still give “specific and legitimate” reasons for rejecting it. 10 II. Analysis 11 The ALJ discussed the findings of Anselm Parlatore, M.D. and Jenna Yun, Ph.D. in 12 tandem, so the Court will do the same. 13 In October 2018, Anselm Parlatore, M.D. (Parlatore), conducted a psychiatric functional 14 evaluation of Plaintiff and reviewed unspecified nursing records. AR 33-34; AR 611-615. He

15 opined that Plaintiff’s “social interaction and adaptation” were markedly impaired and that her 16 “interpersonal interactions are markedly affected by her emotional symptoms [and that she] 17 would have moderate to severe difficulty dealing with the usual stress encountered in a work 18 environment.” AR 614. 19 Just over a year later, in November 2019, Jenna Yun, Ph.D. (Yun) conducted another 20 psychiatric evaluation of Plaintiff, and opined that she had markedly severe impairments in the 21 ability to: adapt to changes in a routine work setting; make simple work-related decisions; 22 communicate and perform effectively in a work setting; maintain appropriate behavior in a work 23

24 1 setting; and complete a normal work day and work week without interruptions from 2 psychologically based symptoms. AR 1037-1050. 3 The ALJ found Parlatore and Yun’s opinions to be “persuasive” but determined “the 4 [above described] portion of their opinions regarding the marked extent of the claimant’s social

5 and adaptive functioning [was] not supported by their own examination of the claimant [or] 6 consistent with the claimant’s longitudinal medical record ...”. AR 34. The ALJ further found 7 Parlatore’s diagnosis of panic attacks, “which appears to have informed his extreme limitations,” 8 was belied by Plaintiff’s frequent denial of experiencing panic attack symptoms. AR 35. Further, 9 the ALJ interpreted Yun’s findings to be unsupported by her own examination, and noted that 10 Yun did not review any other medical records. Id. Ultimately, the ALJ concluded that Parlatore 11 and Yun based their findings on Plaintiff’s self-reporting about her symptoms and functional 12 limitations, which was “consistently out of proportion with her presentation during medical 13 appointments.” Id. 14 This Court finds the ALJ’s reasons for rejecting Parlatore and Yun’s opinions to be

15 conclusory and unsupported by substantial evidence. See Embrey v. Bowen, 849 F.2d 418, 421- 16 422 (9th Cir. 1988) (“it is incumbent on the ALJ to provide detailed, reasoned, and legitimate 17 rationales for disregarding the physicians’ findings[;]” conclusory reasons do “not achieve the 18 level of specificity” required to justify an ALJ’s rejection of an opinion); see also, McAllister v. 19 Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an ALJ’s rejection of a physician’s opinion on the 20 ground that it was contrary to clinical findings in the record was “broad and vague, failing to 21 specify why the ALJ felt the treating physician’s opinion was flawed”). 22 Among the errors the ALJ committed was engaging in evidentiary “cherry-picking,” 23 wherein he honed-in on portions of the record unrelated to one of the above assessed “marked”

24 1 limitations, and overlooked evidence directly supporting these limitations. See e.g., AR 551 2 (Plaintiff was anxious and fidgety); AR 552 (Plaintiff continues to present anxious); AR 556 3 (Plaintiff had trouble focusing; anxious); AR 565 (Plaintiff highly anxious; overwhelmed with 4 hard time staying on track); AR 568 (Plaintiff triggered by things people say); AR 569 (Plaintiff

5 needed additional help to complete homework); AR 578 (Plaintiff had a hard time following 6 instructions). Such “cherry-picking” of the evidence is highly disfavored in this circuit. See 7 Reddick v. Chater, 157 F.3d 715 at 722-23 (9th Cir. 1998) (an ALJ must not “cherry-pick” certain 8 observations without considering their context); see also Attmore v. Colvin, 827 F.3d 872, 875 9 (9th Cir. 2016) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (the Court “cannot 10 affirm … ‘simply by isolating a specific quantum of supporting evidence,’ but ‘must consider the 11 record as a whole, weighing both evidence that supports and evidence that detracts from the 12 [Commissioner’s] conclusion’”). 13 Another of the ALJ’s flaws was his tendency to “play doctor” by supplanting Parlatore 14 and Yuns’ interpretation of their own mental status exams (MSEs) 1 with his own interpretation.

15 See Hanford v. Colvin, 2:16-cv-921-JRC, 2016 WL 7404449, at *5 (W.D. Wash. 2016)(citing 16 Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“judges, including administrative law 17 judges of the Social Security Administration, must be careful not to succumb to the temptation to 18 play doctor. The medical expertise of the Social Security Administration is reflected in 19 regulations; it is not the birthright of the lawyers who apply them. Common sense can mislead; 20

21 1 The Court notes that “experienced clinicians attend to detail and subtlety in behavior, such as the affect 22 accompanying thought or ideas, the significance of gesture or mannerism, and the unspoken message of conversation[:] The Mental Status Examination allows the organization, completion and communication of these observations.” Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination 3 (Oxford 23 University Press 1993). “Like the physical examination, the Mental Status Examination is termed the objective portion of the patient evaluation.” Id. at 4 (emphasis in original). 24 1 lay intuitions about medical phenomena are often wrong”) (internal citations omitted)); see also 2 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an ALJ’s rejection of a physician’s 3 opinion on the ground that it was contrary to clinical findings in the record was “broad and 4 vague, failing to specify why the ALJ felt the treating physician’s opinion was flawed”).

5 Both Parlatore and Yun are experienced clinicians who performed MSEs on Plaintiff, and 6 were the most qualified people to interpret their own findings and render an opinion about 7 Plaintiff’s functional capacity. Yet, the ALJ speculated that Parlatore’s diagnosis of panic attacks 8 was the predominate basis for his “marked” findings, and that Yun’s statements regarding 9 Plaintiff’s social functioning were inconsistent with her examination and must have been based 10 upon Plaintiff’s self-reporting. The ALJ did not explain the rationale for these conclusions, 11 which were speculative at best, and insufficient to supplant the medical opinions of trained 12 clinicians. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“Psychiatric evaluations 13 may appear subjective, especially compared to evaluations in other medical fields. Diagnoses 14 will always depend in part on the patient’s self-report as well as on the clinician’s observations

15 of the patient. But such is the nature of psychiatry.”). 16 In addition to erroneously evaluating Parlatore and Yun’s opinions, the Court concurs 17 with Plaintiff that the ALJ’s reasons for rejecting the opinion of Patricia Leckenby, ARNP 18 (Leckenby), was not based upon substantial record evidence. Dkt. 13 at 12-13. 19 In February 2018, Leckenby co-authored (together with a mental health counselor), a 20 “mental residual functional capacity assessment, opining that Plaintiff’s “major depressive 21 disorder, posttraumatic stress disorder, and attention deficit hyperactivity disorder generally 22 caused between a marked limitation (defined as a limitation that seriously limited the ability to 23 function) and extreme limitation (defined as an inability to function) across all mental

24 1 functioning domains and that she would be off-task 20% of a normal workday and be absent 2 25% to 50% of a normal workday or workweek.” AR 35; AR 345-348. The ALJ found these 3 assessments unpersuasive, concluding that they were inconsistent with Plaintiff’s longitudinal 4 medical record and Leckenby’s own treatment notes. Id.

5 Leckenby treated Plaintiff 26 times between May 2017 and February 2018, during which 6 period Plaintiff was actively engaged in counseling and prescription medication trials. See AR 7 351. The “longitudinal record” from this period reflects periods of improvement (AR 371) and 8 periods of decline (AR 370). Here again, the ALJ’s myopic focus on treatment notes arguably 9 inconsistent with Leckenby’s assessment amounts to disfavored evidentiary “cherry-picking” 10 (Reddick, 157 F.3d at 722-23), and the ALJ’s substitution of his own “medical” judgment in 11 place of the treating source’s opinion of her own findings is manifestly erroneous (Hanford, 12 2016 WL 7404449, at *5). 13 Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 14 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the

15 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 16 Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). The determination 17 as to whether an error is harmless requires a “case-specific application of judgment” by the 18 reviewing court, based on an examination of the record made “‘without regard to errors’ that do 19 not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. 20 Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)). 21 Here, the “marked” limitations improperly rejected by the ALJ were not included in 22 Plaintiff’s RFC. If these limitations should have been included, their omission resulted in error 23

24 1 that cannot be considered harmless. Consequently, this matter must be reversed and remanded 2 for reevaluation of the above medical evidence. 3 Plaintiff also maintains that the ALJ erred by erroneously discrediting some of her 4 subjective symptom allegations. Since this Court concludes that the ALJ committed harmful

5 error in his assessment of the medical opinion evidence, and the ALJ’s reconsideration of the 6 medical evidence may impact his assessment of Plaintiff’s subjective symptom testimony, the 7 ALJ must reconsider this evidence on remand. 8 Finally, Plaintiff asserts that her administrative proceedings were “tainted” by the 9 unconstitutional appointment of the then-Commissioner of Social Security. This District has 10 found this claim to be meritless. See Tyler B. v. Commissioner of Social Security, Case No. 2:20- 11 CV-1572-DWC (W.D. Wash. Oct. 8, 2021); Lisa Y. v. Commissioner of Social Security, -- 12 F.Supp.3d --, 2021 WL 5177363, at *5-8 (W.D. Wash. Nov. 8, 2021). In light of previous Court 13 decisions and the remand in this case, the Court declines to further consider this claim. 14 CONCLUSION For the foregoing reasons, the Court hereby finds the ALJ improperly concluded that 15 Plaintiff was not disabled. Accordingly, this matter be REVERSED and REMANDED to the 16 Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings 17 consistent with this order. 18 Dated this 7th day of January, 2022. 19 20 A 21 David W. Christel United States Magistrate Judge 22 23 24