Copeland v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 31, 2024
• Docket: 2:24-cv-00992
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KEVIN C., CASE NO. 2:24-CV-992-DWC 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.

15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 16 of his applications for Supplemental Security Income (SSI) benefits and Disability Insurance 17 Benefits (DIB). Pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13, the 18 parties have consented to proceed before the undersigned. After considering the record, the Court 19 finds no reversable error and affirms the Commissioner’s decision to deny benefits. 20 I. BACKGROUND 21 Plaintiff filed applications for SSI and DIB on September 18, 2020. Administrative 22 Record (AR) 17. His alleged date of disability onset is January 1, 2020. Id. His requested hearing 23 was held before an Administrative Law Judge (ALJ) on October 13, 2023. AR 40–98. On 24 1 November 21, 2023, the ALJ issued a written decision finding Plaintiff not disabled. AR 14–39. 2 The Appeals Council declined Plaintiff’s timely request for review, making the ALJ’s decision 3 the final agency action subject to judicial review. AR 1–6. On July 11, 2024, Plaintiff filed a 4 Complaint in this Court seeking judicial review of the ALJ’s decision. Dkt. 5.

5 II. STANDARD 6 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 7 benefits if, and only if, the ALJ’s findings are based on legal error or not supported by 8 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 9 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 10 III. DISCUSSION 11 In his opening brief, Plaintiff argues the ALJ erred by failing to order additional testing 12 related to Plaintiff’s alleged intelligence disorder and failing to properly assess the medical 13 opinion of Elwyn Hulse Jr., PsyD. See generally Dkt. 10. 14 A. Plaintiff’s Intelligence Disorder

15 At step two of the sequential evaluation process, the ALJ determines whether a claimant 16 has produced evidence of one or more medically determinable impairments (MDIs) and whether 17 those impairments are severe. See 20 C.F.R. § 404.1520(a)(4)(ii). At step two, the ALJ found 18 Plaintiff did not have a medically determinable impairment of an intellectual disorder. See id. 19 Plaintiff does not challenge the ALJ’s determination that Plaintiff’s intelligence disorder 20 was not an MDI. See Dkt. 10. As the ALJ noted, the only mention of such a disorder is in Dr. 21 Hulse’s opinion, which listed “intellectual disability disorder” as a diagnosis. See AR 20, 732. 22 Without anything further, the ALJ properly found there was no MDI. See 20 C.F.R. § 404.1521 23 (“[A] physical or mental impairment must be established by objective medical evidence from an

24 1 acceptable medical source. We will not use your statement of symptoms, a diagnosis, or a 2 medical opinion to establish the existence of an impairment(s).”). 3 Rather, Plaintiff argues the ALJ fell short of his duty to develop the record by not 4 ordering a consultative examination administering an IQ test to Plaintiff. Dkt. 10 at 3–5.

5 Defendant argues (1) this duty was not triggered; (2) the ALJ was not required to order an IQ 6 test; and (3) Plaintiff waived the argument by failing to raise it at the agency level. Dkt. 14 at 2– 7 4. The Court agrees as to the first argument and need not consider the second or third arguments. 8 The ALJ “has an independent duty to fully and fairly develop the record,” Tonapetyan v. 9 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (cleaned up), which “is triggered only when there is 10 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 11 evidence,” Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (quoting Mayes v. Massanari, 276 12 F.3d 453, 459–60 (9th Cir. 2001)). This duty is heightened when a claimant is unrepresented or 13 mentally ill. Tonapetyan, 242 F.3d at 1150. 14 The Ninth Circuit has found the duty triggered where the ALJ was informed by an

15 unrepresented claimant additional probative evidence existed, see McLeod v. Astrue, 640 F.3d 16 881, 885–86 (9th Cir. 2011), where an unrepresented claimant’s statements and the record 17 suggested an additional impairment, see Celaya v. Halter, 332 F.3d 1177, 1182–83 (9th Cir. 18 2003), where an expert relied upon by the ALJ indicated the evidence was inadequate to form an 19 opinion, see Tonapetyan, 242 F.3d at 1150–51, and where an ALJ relied upon the omission of 20 testimony not elicited, see Widmark v. Barnhart, 454 F.3d 1063, 1068–69 (9th Cir. 2006). 21 However, the duty cannot shift the burden of proving disability onto the ALJ. See Mayes, 22 276 F.3d at 460. For this reason, the lack of adequate evidence of an MDI generally does not 23 trigger the duty. Rather, it is the claimant’s duty to produce such evidence. See 42 U.S.C. §

24 1 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes 2 such medical and other evidence of the existence thereof as the Commissioner of Social Security 3 may require.”); 20 C.F.R. §§ 404.1512(a)(1) (“In general, you have to prove to us that you are 4 blind or disabled.”), 404.1512(a)(2)(i) (“The evidence in your case record . . . must allow us to

5 determine . . . the nature and severity of your impairment(s).”). 6 The Ninth Circuit’s decision in Mayes confirms inadequate evidence of an MDI does not 7 compel further record development. There, a claimant alleged disability because of back pain. 8 See Mayes, 276 F.3d at 458. She argued the ALJ was required to order an exam testing whether 9 she had herniated discs. See id. at 459. The Ninth Circuit rejected the argument. Id. “The record 10 before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the 11 evidence”—rather, it was adequate for the ALJ to conclude there was insufficient evidence of an 12 MDI. Id. at 460. To find otherwise, the Court said, “would improperly shift [the claimant's] 13 burden to the ALJ.” Id. at 459.1 14 The principle is also confirmed by Commissioner’s regulations. When medical evidence

15 is not “based on” the “medically acceptable clinical or laboratory diagnostic techniques” that are 16 required to establish an MDI (see 20 C.F.R. § 404.1521), the evidence is considered 17 “inconsistent,” rather than “insufficient.” 20 C.F.R. § 404.1520b(b). When the evidence is 18 inconsistent, the ALJ need only take further action if he “cannot reach a conclusion about 19 20 1 See also Jamtaas v. Colvin, 606 F. App’x 363 (9th Cir. 2015) (unpublished) (“Jamtaas did not testify at his administrative hearing to symptoms of PTSD, and no other doctor diagnosed him with PTSD. Thus, the ALJ’s duty 21 to develop the record was not triggered.”). The Ninth Circuit did require an ALJ to develop the record with respect to the existence of an MDI in Celaya, 332 F.3d at 1182–83, but that case involved the MDI of obesity, which is 22 established with “trivial arithmetic calculations” from height and weight statistics already in the record. Id. at 1182– 83, 1183 n.3. It was the claimant’s appearance and those statistics of record which invoked the duty, not the absence 23 of valid objective medical evidence. See id. And that case involved an unrepresented claimant, heightening the ALJ’s duty; the same outcome may not result if the claimant is represented. See Burch v. Barnhart, 400 F.3d 676, 24 681–82 (9th Cir. 2005) (distinguishing Celaya because “Burch was represented by counsel”). 1 whether [the claimant] is disabled.” See id. § 404.1520b(b)(1)–(2). If the lack of objective 2 medical evidence establishing an MDI always required further action, this distinction would be 3 superfluous. To require further action not required by Commissioner’s regulations would exceed 4 the Court’s authority. See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435

5 U.S. 519, 524 (1978) (“[R]eviewing courts are generally not free to impose [additional 6 procedural requirements] if the agencies have not chosen to grant them.”); see also id. at 541–48. 7 Relying on Garcia v. Commissioner of Social Security, 768 F.3d 925 (9th Cir. 2014), 8 Plaintiff suggests an ALJ must order IQ testing whenever it might be “relevant.” See Dkt. 10 at 9 4–5. In Garcia, a consultative examiner administered a partial IQ test due to time constraints, 10 revealing borderline results. See 768 F.3d at 927–28, 930. The ALJ found an MDI of borderline 11 intellectual functioning, but—relying upon the partial results—found the claimant not disabled. 12 Id. at 930–31. The Ninth Circuit found this was erroneous: 13 [i]n a case, such as this one, that turns on whether a claimant has an intellectual disability and in which IQ scores are relied upon for the purpose of assessing that disability, there is 14 no question that a ‘fully and fairly develop[ed]’ record […] will include a complete set of IQ scores […]. 15 768 F.3d at 930–31 (cleaned up). Garcia thus requires an ALJ develop the record before relying 16 upon partial IQ scores. Id. 17 Here, unlike in Garcia, the ALJ relied upon the absence of IQ scores in the record to find 18 no MDI was established. Garcia cannot reach this situation—if it did, it would shift the burden 19 of producing evidence of an MDI to the ALJ and would thus be inconsistent with Mayes. See 20 Kelava v. Gonzales, 434 F.3d 1120, 1126 (9th Cir. 2006) (“A three-judge panel cannot disregard 21 prior circuit precedent unless it has been effectively overruled by an intervening Supreme Court 22 decision.”) (citation omitted). 23 24 1 Indeed, much of the Garcia Court’s reasoning is inapplicable to the situation where no IQ 2 scores were ordered or obtained. The Garcia Court reached its decision, in part, because “the 3 regulations promulgated by the SSA demonstrate that . . . it is essential for complete—rather than 4 partial—sets of IQ scores to be used.” 768 F.3d at 931. The partial IQ tests rendered the

5 consultative examination incomplete, and therefore contrary to Commissioner’s regulations. Id. 6 (“[R]eports of test results ‘must conform to accepted professional standards and practices in the 7 medical field for a complete and competent examination,’ 20 C.F.R. § 416.919n(b), and an 8 examination is not complete unless it includes “all the elements of a standard examination in the 9 applicable medical specialty,” id. § 416.919n(c).”); see also 20 C.F.R. § 404.1519p(b) 10 (Commissioner will recontact examiner “if the report is inadequate or incomplete”). 11 Here, on the other hand, Dr. Hulse was retained to complete a mental status evaluation, 12 not an assessment of Plaintiff’s intellectual functioning. See AR 723. It is not the case, as it was 13 in Garcia, that the examination was incomplete—rather, Dr. Hulse completed a full mental status 14 examination and described her findings in a report. See AR 724–28. This is no small distinction.

15 While certain requirements and obligations attach once an examination has been ordered (see 20 16 C.F.R. § 404.1519p), the decision to order a consultative examination in the first instance is itself 17 discretionary.2 The Court can enforce the obligations that attach once an exam is ordered, but to 18

19 2 See 20 C.F.R. § 404.1519a(b) (enumerating “situations that may require a consultative examination”) (emphasis added); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001) (“This does not mean that a claimant has an 20 affirmative right to have a consultative examination performed by a chosen specialist.”). In Reed, the Ninth Circuit found an ALJ was required to order a consultative examination because he found the evidence inadequate for evaluation and, under Commissioner’s then-application regulations, that meant a consultative examination must be 21 ordered. See id. at 841–43 (citing 20 C.F.R. § 404.1519a(b) (1991)). Commissioner has since modified its regulations to make such a decision discretionary. Compare 20 C.F.R. § 404.1519a(b) (1991) (amended 2012) 22 (enumerating “situations requiring a consultative examination”) (emphasis added) with id. § 404.1519a(b) (2012) (“may require”); see also How We Collect and Consider Evidence of Disability, 76 Fed. Reg. 20282-01 (2012 23 amendments to § 404.1519a “give [Commissioner’s] adjudicators the discretion to determine the best way to address [inconsistencies and insufficiencies in evidence]”); Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022) (“agency’s 24 updated regulations” may overturn prior Ninth Circuit precedent). 1 require a consultative examination in the first instance may exceed the scope of its authority. See 2 Vt. Yankee, 435 U.S. at 524. For this reason, the Court declines to read Garcia to encompass the 3 situation where no IQ testing was ordered in the first instance. 4 Plaintiff argues complete IQ scores were important for assessing whether he met Listing

5 12.05 (Intellectual Disorder) at step three.3 Dkt. 15 at 3–4. But IQ scores would not have altered 6 the ALJ’s step three finding. One of the two sets of criteria under which a claimant might show 7 disability under Listing 12.05 requires IQ tests (see § 12.05(B)(1)), but that set also requires the 8 claimant to have extreme or marked limitations in one or more “Paragraph B” areas of 9 functioning (§ 12.05(B)(2)), which is also required to meet Listings 12.04 and 12.06. In 10 considering whether Plaintiff met those listings, the ALJ found Plaintiff did not have extreme or 11 marked limitations in the Paragraph B areas (see AR 21–22) and Plaintiff does not challenge this 12 finding (see Dkt. 10). 13 In sum, the ALJ’s duty to develop the record was not triggered by the absence of IQ 14 scores.

15 B. Dr. Hulse’s Medical Opinion 16 Dr. Hulse completed an opinion in July 2022. See AR 724–33. She conducted a mental 17 examination of Plaintiff, finding abnormal stream of mental activity, abnormal orientation, poor 18 memory, and impaired concentration, abstract thinking, insight, and judgment. See AR 728–30. 19 She opined Plaintiff would “struggle” in his abilities to learn new tasks, perform routine tasks, 20 make simple decisions, communicate effectively, work effectively, perform work activities 21 within a schedule, maintain appropriate behavior, and understand, remember, and persist in 22 tasks. AR 731. She opined Plaintiff could not complete a normal workday or work week without 23

24 3 Citations to the Listings refer to 20 C.F.R. § Subp. P, app’x 1. 1 interruptions from psychologically based symptoms and could not adapt to changes in routine. 2 AR 731–32. 3 For applications, like Plaintiff's, filed after March 27, 2017, ALJs need not “defer or give 4 any specific evidentiary weight, including controlling weight, to” particular medical opinions,

5 including those of treating or examining sources. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 6 Rather, ALJs must consider every medical opinion in the record and evaluate each opinion's 7 persuasiveness, considering each opinion's “supportability” and “consistency,” and, under some 8 circumstances, other factors. Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022); 20 C.F.R. §§ 9 404.1520c(b)–(c), 416.920c(b)–(c). 10 The ALJ found Dr. Hulse’s opinion unpersuasive. See AR 29–30. With respect to 11 consistency, he found 12 Dr. Hulse’s opinion is inconsistent with the other medical evidence. While the claimant’s presentation during Dr. Hulse’s exam showed significant mental status abnormalities in 13 nearly every area, the mental status exams provided by the claimant’s treatment providers consistently showed no abnormalities and none of the claimant’s treatment providers 14 noted the claimant had cognitive, memory or thought content abnormalities after his alleged onset date on exam [AR 521, 551, 570, 587, 596, 609, 617, 689, 701, 709, 715, 15 723–33, 799, 870, 974, 1028].

16 AR 29. 17 As the ALJ noted, Plaintiff’s providers noted normal mental status findings throughout 18 the record, including finding he was oriented (AR 521, 587), alert (AR 570, 596, 609, 617, 689, 19 799, 870, 1028), had a normal affect (AR 521, 570, 596, 609, 617, 689, 709, 715, 870, 974, 20 1028), and had normal speech and content (AR 587, 617, 709). The only abnormal mental status 21 findings in the record are those contained in Dr. Hulse’s examination. The ALJ’s finding that Dr. 22 Hulse’s opinion was contradicted by the medical record was therefore supported by substantial 23 evidence. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (“[The Court] must 24 1 consider the entire record as a whole, weighing both the evidence that supports and the evidence 2 that detracts from the Commissioner’s conclusion[.]”) (citations and quotation omitted). 3 Plaintiff contends this was not substantial evidence because the mental status 4 examinations cited were “less extensive” than and not of the same “type and level of testing” as

5 Dr. Hulse’s mental status examination. See Dkt. 10 at 7. This potential deficit notwithstanding, 6 the evidence pointed to by the ALJ is “such relevant evidence as a reasonable mind might accept 7 as adequate to support” the conclusion that he was not significantly limited in the areas Dr. Hulse 8 opined he was limited in. Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). Those areas related 9 to his judgment, concentration, communication, and behavior, which could reasonably be 10 measured by observations of his speech, content, orientation, and affect. See Farlow v. Kijakazi, 11 53 F.4th 485, 488 (9th Cir. 2022) (There is “a presumption that ALJs are, at some level, capable 12 of independently reviewing and forming conclusions about medical evidence to discharge their 13 statutory duty to determine whether a claimant is disabled and cannot work.”); Morgan v. 14 Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is

15 susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be 16 upheld.”). 17 The ALJ also properly discounted the opinion because Dr. Hulse’s opinion that Plaintiff 18 would “struggle” in certain areas was vague as to the extent to which he would be unable to 19 perform in those areas. See AR 29; Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (ALJ 20 properly discounted opinion that described claimant’s ability in areas as poor or fair because the 21 ALJ “reasonably conclude[d] these characterizations were inadequate for determining RFC”). 22 Arguing this finding was erroneous, Plaintiff points out that some forms used by 23 Commissioner “have the same identified functional limitation[s]” as those opined on by Dr.

24 1 Hulse. Dkt. 15 at 4. However, the ALJ did not find the areas Dr. Hulse opined upon vague but, 2 rather, found her opinion as to the extent Plaintiff was limited in those areas (that he “struggles” 3 with them) vague (see AR 29). Commissioner’s form asks sources to opine precise limitations 4 (e.g., none, mild, moderate) in those functional areas (see AR 149), so there is no contradiction

5 between the ALJ’s finding and Commissioner’s policies. 6 Finally, the ALJ properly found Dr. Hulse’s opinion that Plaintiff could not adapt to 7 changes inconsistent with evidence he took public transit, an activity the ALJ reasonably 8 assumed would involve at least some adaptation to changes in routine. See AR 30; Ford, 950 9 F.3d at 1155 (“A conflict between [an opinion] and a claimant's activity level is a specific and 10 legitimate reason for rejecting the opinion.”). 11 The ALJ provided adequate reasons supported by substantial evidence for discounting 12 Dr. Hulse’s opinion. 13 IV. CONCLUSION 14 For the foregoing reasons, the Court hereby AFFIRMS Defendant’s decision denying

15 benefits. 16 Dated this 31st day of December, 2024. 17 A 18 David W. Christel United States Magistrate Judge 19 20 21 22 23 24