Cox v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: March 17, 2023
• Docket: 1:21-cv-03028
• Status: Unknown

Opinion

Mar 17, 2023 1 2 SEAN F. MCAVOY, CLERK 3

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

7 WHISPER C., No. 1:21-CV-03028-ACE 8 Plaintiff, ORDER GRANTING 9 PLAINTIFF’S MOTION 10 v. FOR SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, 12 ACTING COMMISSIONER OF ECF Nos. 18, 22 13 SOCIAL SECURITY,

14 Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. 17 ECF Nos. 18, 22. Attorney Chad Hatfield represents Whisper C. (Plaintiff); 18 Special Assistant United States Attorney Ryan Lu represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 4. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 22 Judgment and DENIES Defendant’s Motion for Summary Judgment, and 23 REMANDS the matter for further proceedings. 24 JURISDICTION 25 On April 15, 2013, Plaintiff was found to be disabled as of March 7, 2013. 26 Tr. 65-72. On July 7, 2016, the Commissioner conducted a continuing disability 27 review and determined that Plaintiff, then thirteen years old, was no longer 28 disabled and therefore no longer eligible for Supplemental Security Income. Tr. 1 73, 75-78. Plaintiff’s request for reconsideration of that determination was denied. 2 Tr. 97-106. ALJ Prinsloo held a hearing on June 4, 2020, and issued an 3 unfavorable decision on June 24, 2020. Tr. 20-33. The Appeals Council denied 4 review on December 29, 2020. Tr. 1-6. Plaintiff appealed this final decision of the 5 Commissioner on February 24, 2021. ECF No. 1. 6 STANDARD OF REVIEW 7 The ALJ is responsible for determining credibility, resolving conflicts in 8 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 9 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 10 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 11 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 12 only if it is not supported by substantial evidence or if it is based on legal error. 13 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 14 defined as being more than a mere scintilla, but less than a preponderance. Id. at 15 1098. Put another way, substantial evidence is such relevant evidence as a 16 reasonable mind might accept as adequate to support a conclusion. Richardson v. 17 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 18 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 19 interpretation, the Court may not substitute its judgment for that of the ALJ. 20 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 21 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 22 if conflicting evidence supports a finding of either disability or non-disability, the 23 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 24 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 25 set aside if the proper legal standards were not applied in weighing the evidence 26 and making the decision. Brawner v. Sec’y of Health and Human Services, 839 27 F.2d 432, 433 (9th Cir. 1988). 28 // 1 SEQUENTIAL EVALUATION PROCESS 2 A child is “disabled” for the purposes of receiving Supplemental Security 3 Income benefits if she has a medically determinable physical or mental 4 impairment, which results in marked and severe functional limitations, and which 5 can be expected to result in death or which has lasted or can be expected to last for 6 a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). 7 The Act requires the Commissioner to review a disabled child’s continued 8 eligibility for benefits at least once every three years. See 42 U.S.C. § 9 1382c(a)(3)(H)(ii)(I). The Commissioner has established a three-step medical 10 improvement sequential evaluation process for determining whether a child 11 continues to be disabled within the meaning of the Act. 20 C.F.R. § 416.994a(b). 12 At step one, the inquiry is whether there has been medical improvement in 13 the impairments that were present at the time of the most recent favorable 14 determination or decision finding the child disabled (the most recent favorable 15 determination is called the “comparison point decision” or “CPD,” and the 16 impairments that were present at the CPD are called the “CPD impairments”). 20 17 C.F.R. § 416.994a(b)(1); SSR 05-03p. Medical improvement is any decrease in 18 medical severity, except for minor changes. 20 C.F.R. § 416.994a(c). It must be 19 based on changes in the symptoms, signs, or laboratory findings associated with 20 the impairments. 20 C.F.R. § 416.994a(c). If there has been no medical 21 improvement, the child is still disabled, unless one of the exceptions to medical 22 improvement applies. 20 C.F.R. § 416.994a(b)(1). If there has been medical 23 improvement, the inquiry proceeds to step two. 24 At step two, the inquiry is whether the CPD impairments still meet or 25 medically or functionally equal the severity of the listed impairments that they met 26 or equaled at the time of the CPD. See 20 C.F.R. § 416.994a(b)(2); SSR 05-03p. 27 The question at step two is whether a claimant’s CPD impairments still 28 functionally equal the listings. See 20 C.F.R. § 416.994a(b)(2); SSR 05-03p. If 1 the impairments still functionally equal the listings, the child is still disabled, 2 unless one of the exceptions to medical improvement applies. 20 C.F.R. § 3 416.994a(b)(2). If they do not, the inquiry proceeds to step three. 20 C.F.R. § 4 416.994a(b)(2). 5 At step three, the inquiry is whether the child is currently disabled 6 considering all current impairments, including those the child did not have at the 7 time of the CPD and those that the Commissioner did not consider at that time. 20 8 C.F.R. § 416.994a(b)(3). This first involves determining whether the child’s new 9 or unconsidered impairments are “severe” – meaning more than slight 10 abnormalities that cause no more than minimal functional limitations. 20 C.F.R. § 11 416.994a(b)(3)(i); 20 C.F.R. § 416.924(c). If the impairments are not severe, the 12 child’s disability has ended. 20 C.F.R. § 416.994a(b)(3)(i). If they are severe, the 13 question is whether they meet or medically equal the listings in 20 C.F.R. Part 404, 14 Subpart P, App’x 1. See 20 C.F.R. § 416.994a(b)(3)(ii). If they do, the child’s 15 disability continues. 20 C.F.R. § 416.994a(b)(3)(ii). If not, the question is whether 16 they functionally equal the listings. 20 C.F.R. § 416.994a(b)(3)(iii). If they do, the 17 child’s disability continues. 20 C.F.R. § 416.994a(b)(3)(iii). If not, the child’s 18 disability has ended. 20 C.F.R. § 416.994a(b)(3)(iii). 19 Determining whether a child’s impairments functionally equal the listings 20 requires an assessment of the child’s limitations in six broad areas of functioning, 21 called “domains.” 20 C.F.R. § 416.926a(b)(1). The six domains are: (1) 22 “Acquiring and Using Information,” (2) “Attending and Completing Tasks,” (3) 23 “Interacting and Relating with Others,” (4) “Moving About and Manipulating 24 Objects,” (5) “Caring for Yourself,” and (6) “Health and Physical Well-being.” 20 25 C.F.R. § 416.926a(b)(1)(i-vi). In making this assessment, the factfinder must 26 compare how appropriately, effectively, and independently the impaired child 27 performs activities compared to the performance of other children of the same age 28 who do not have impairments. 20 C.F.R. § 416.926a(b). 1 The child’s impairment or combination of impairments will be found to 2 functionally equal the listings if the child has “marked” limitations in at least two 3 of the domains or if the child has “extreme” limitations in any one of the six 4 domains. 20 C.F.R. § 416.926a(d). 5 ADMINISTRATIVE FINDINGS 6 The ALJ determined that Plaintiff had medically improved and was no 7 longer under a disability as of July 7, 2016. Tr. 33. 8 With respect to Plaintiff’s condition at the time of the CPD, the ALJ made 9 the following findings: 10 The CPD was April 15, 2013. At that time, Plaintiff had the following 11 medically determinable impairments: attention deficit hyperactive disorder 12 (ADHD) and mood disorder. These impairments resulted in the following 13 limitations: marked limitations attending/completing tasks, interacting with others, 14 and caring for self. Because Plaintiff’s impairments resulted in these limitations, 15 her impairments were found to functionally equal the listings. Tr. 24. 16 With respect to the three-step medical improvement review standard, the 17 ALJ made the following findings. 18 At step one, the ALJ found that there had been medical improvement in the 19 impairments that were present at the time of the CPD (citing 20 C.F.R. § 20 416.994a(c)). Tr. 24. 21 At step two, the ALJ found that Plaintiff’s CPD impairments no longer 22 functionally equaled the severity of the listed impairments (citing 20 C.F.R. § 23 416.994a(b)(2); 20 C.F.R. § 416.926a; SSR 05-03p). Tr. 25. 24 At step three, the ALJ found that Plaintiff has the following severe 25 impairments: posttraumatic stress disorder (PTSD) and depression. The ALJ found 26 that Plaintiff’s impairments neither meet/medically equals one of the listed 27 impairments nor functionally equal the listings. Tr. 25 (citing 20 C.F.R. § 416.925; 28 20 C.F.R. § 416.926; 20 C.F.R. § 416.924(d); 20 C.F.R. § 416.926a). Specifically, 1 the ALJ found Plaintiff has “less than marked” limitations in the domains of 2 acquiring and using information, attending and completing tasks, interacting with 3 others, caring for yourself, and no limitations in moving about and manipulating 4 objects and health and physical well-being. Tr. 29-33. 5 Because Plaintiff has not had an impairment or combination of impairments 6 resulting in either “marked” limitations in two domains of functioning or 7 “extreme” limitation in one domain of functioning, the ALJ found Plaintiff’s 8 disability ended as of July 7, 2016. Tr. 33. 9 ISSUES 10 The question presented is whether substantial evidence supports the ALJ’s 11 decision and, if so, whether that decision is based on proper legal standards. 12 Plaintiff raises the following issues for review: (A) whether the ALJ 13 properly evaluated the medical opinion evidence; and (B) whether the ALJ 14 properly evaluated the symptom allegation testimony. ECF No. 15 at 2. 15 DISCUSSION 16 A. Medical Opinions 17 Because Plaintiff filed her application before March 27, 2017, the ALJ was 18 required to generally give a treating doctor’s opinion greater weight than an 19 examining doctor’s opinion, and an examining doctor’s opinion greater weight 20 than a non-examining doctor’s opinion. Garrison v. Colvin, 759 F.3d 995, 1012 21 (9th Cir. 2014). An ALJ may only reject the contradicted opinion of a treating or 22 examining doctor by giving “specific and legitimate” reasons. Revels v. Berryhill, 23 874 F.3d 648, 654 (9th Cir. 2017). An ALJ may reject the opinion of a 24 nonexamining physician by reference to specific evidence in the medical record. 25 Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citations omitted). 26 Plaintiff argues the ALJ misevaluated three medical opinions. ECF No. 15 at 11- 27 21. 28 // 1 1. Nancy Winfrey, Ph.D 2 Dr. Winfrey testified at the hearing as a medical expert. The ALJ indicated 3 Dr. Winfrey “opined [Plaintiff] met listings of 112.04 and 112.15” for Plaintiff’s 4 PTSD and depression diagnoses and “had marked [limitations in] interaction and 5 adaptation.” The ALJ gave Dr. Winfrey’s opinion “little weight.” Tr. 27. 6 The ALJ first discounted Dr. Winfrey’s opinion on the ground the doctor 7 “seemed to base her opinion largely on the evidence that supported the original 8 award of benefits for the CPD.” Tr. 27. Substantial evidence does not support this 9 finding. Dr. Winfrey plainly testified that she reviewed the longitudinal record, 10 including “very helpful” treatment notes that “go right up pretty much to the 11 present.” Tr. 53. Further, Dr. Winfrey’s Listings analysis fundamentally differed 12 from that of the CPD, as it involved different impairments. Tr. 53-54; compare Tr. 13 52 (Dr. Winfrey opining that Plaintiff has “active PTSD symptoms” and 14 “significant depression”) with Tr. 66 (CPD stating ADHD is the sole impairment). 15 Indeed, Dr. Winfrey testified “[Plaintiff’s] issues aren’t even primarily ADHD, and 16 that’s not even a diagnosis in her treatment notes for the last two years.” Tr. 56-57. 17 The ALJ accordingly erred by discounting the opinion on this ground. See Reddick 18 v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (reversing ALJ’s decision where 19 his “paraphrasing of record material is not entirely accurate regarding the content 20 or tone of the record”). 21 The ALJ next discounted Dr. Winfrey’s opinion as “at odds with the better- 22 supported DDS reconsideration opinion.” Tr. 27. This reasoning is legally 23 erroneous. An ALJ may not reject a medical opinion “with boilerplate language 24 that fails to offer a substantive basis for” the ALJ’s conclusion. Garrison, 759 25 F.3d at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 26 Further, it is not the job of the reviewing court to comb the administrative record to 27 find specific conflicts. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 28 Resisting this conclusion, the Commissioner avers the Court may nevertheless 1 “draw reasonable inferences.” ECF No. 22 at 10. However, having reviewed the 2 record, no reasonable inferences may be drawn from the ALJ’s assessment of the 3 DDS reconsideration opinion that would firmly explain the basis for the ALJ’s 4 rejection of Dr. Winfrey’s opinion. The Court may only affirm an ALJ’s decision 5 based on the reasons actually given, “not post hoc rationalizations that attempt to 6 intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. 7 Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 8 U.S. 194, 196 (1947)). The ALJ accordingly erred by discounting the opinion on 9 this ground. 10 Finally, the ALJ discounted Dr. Winfrey’s opinion on the ground the doctor 11 “failed to adequately assess the impact of noncompliance with and sporadic 12 treatment, inconsistent medication use, and drug and alcohol issues.” Tr. 27. This 13 finding is both conclusory and unsupported. The ALJ did not explain how Dr. 14 Winfrey failed to conduct an “adequate[]” assessment or how this assessment 15 undermines her opinion. See Garrison, 759 F.3d at 1012-13; Burrell, 775 F.3d at 16 1138. Moreover, Dr. Winfrey squarely addressed Plaintiff’s drug and alcohol 17 usage, treatment compliance, and medication usage. Dr. Winfrey testified that the 18 “ongoing concern of substance use” “muddies the waters to some degree,” pointing 19 to Plaintiff’s “alcohol and cannabis” usage. Tr. 53. Dr. Winfrey also spoke to 20 Plaintiff’s compliance with treatment, assessing her as “compliant” and pointing to 21 “very few no-shows, if any actually.”1 Tr. 55. Finally, Dr. Winfrey noted Plaintiff 22 had “issues” taking her ADHD medication, but assessed that issue “was resolved in 23 the past two years.” Tr. 56. The ALJ accordingly erred by discounting the opinion 24 on this ground. 25 1 In any event, “‘it is a questionable practice to chastise one with a mental impairment for 26 the exercise of poor judgment in seeking rehabilitation.’” Nguyen v. Chater, 100 F.3d 27 1462, 1465 (9th Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)). 28 1 The ALJ accordingly erred by discounting Dr. Winfrey’s opinion. 2 2. CeCilia Cooper, Ph.D 3 Dr. Cooper examined Plaintiff on May 3, 2017, and opined, as relevant here: 4 “[Plaintiff] has problems with depression and anxiety that result in strained 5 relationships at home and a felt need, on her part, for more one on one assistance in 6 school to facilitate learning. She appears to respond more favorably to that kind of 7 help than to counseling or medication monitoring. She is seeking a transfer to an 8 alternative school. She would probably be more comfortable in that type of setting 9 because of the accommodations provided.” Tr. 443. 10 The ALJ rejected Dr. Cooper’s opinion regarding an alternative school, 11 finding it “appears based on preference/subjective statements of the claimant rather 12 than any necessity as the claimant has no IEP, has improvement in school, and the 13 teacher questionnaire from that same year does not show such need.” Tr. 28. The 14 ALJ’s finding lacks evidentiary support. As an initial matter, the teacher 15 questionnaire indicates Plaintiff’s involvement in at least three violent incidents, 93 16 total absences across her classes during the 2016-2017 school year,2 and largely 17 worsening academic performance. Tr. 265, 268. Moreover, the record indicates 18 Dr. Cooper’s opinion was based on clinical observations and does not indicate Dr. 19 Cooper found Plaintiff to be untruthful. Therefore, this is no evidentiary basis for 20 rejecting the opinion. Cf. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-200 21 (9th Cir. 2008) (“an ALJ does not provide clear and convincing reasons for 22 rejecting an examining physician’s opinion by questioning the credibility of the 23 patient’s complaints where the doctor does not discredit those complaints and 24 supports his ultimate opinion with his own observations”); Edlund v. Massanari, 25 26 2 Plaintiff’s disciplinary history and attendance record stand in stark contrast to the ALJ’s 27 finding that her “school record shows no serious attendance problems and minimal social problems at school.” Tr. 31. Indeed, the ALJ refers to these violent incidents as “minor 28 disciplinary infractions[.]”. Tr. 31. 1 253 F.3d 1152, 1159 (9th Cir. 2001). The ALJ accordingly erred by discounting 2 Dr. Cooper’s opinion. 3 3. Kristylynne Goveia, LICSW 4 Ms. Goveia was Plaintiff’s treating counselor during much of the relevant 5 time period. In addition to a bevy of treatment notes, the record contains an initial 6 mental health assessment conducted by Ms. Goveia prior to the commencement of 7 Plaintiff’s counseling sessions. As part of the initial assessment, performed on 8 May 8, 2018, Ms. Goveia opined on the following “medical necessity”: “[Plaintiff] 9 qualifies for SED due to an impairment in functioning in the family, at school and 10 with social interactions. [Plaintiff] is experiencing impairment in school work and 11 has failing grades for more than the last 6 months. … Treatment is deemed to be 12 reasonably necessary to improve and stabilize the functional difficulties.” Tr. 437. 13 Plaintiff argues the ALJ erred by failing to assess Ms. Goveia’s opinion. 14 The Commissioner counters that Ms. Goveia did not offer an opinion that speaks to 15 functional limitations. Neither party is exactly right. As discussed below, the 16 Court concludes the ALJ erred by failing to develop the record with respect to Ms. 17 Goveia. 18 The Commissioner explains “SED” stands for “Severe Emotional 19 Disturbance.” ECF No. 15 at 17. While the Commissioner correctly observes that 20 Plaintiff “has not offered any explanation of the term in her brief,” ECF No. 15 at 21 17, the Court notes the term appears in the Individuals with Disabilities Education 22 (IDEA) Act’s implementing regulations. See 34 C.F.R. § 300.8(c)(4). There it is 23 defined as “a condition exhibiting one or more of the following characteristics over 24 a long period of time and to a marked degree that adversely affects a child’s 25 educational performance: (A) An inability to learn that cannot be explained by 26 intellectual, sensory, or health factors[;] (B) An inability to build or maintain 27 satisfactory interpersonal relationships with peers and teachers[;] (C) Inappropriate 28 types of behavior or feelings under normal circumstance[;] (D) A general pervasive 1 mood of unhappiness or depression[;] (E) A tendency to develop physical 2 symptoms or fears associated with personal or school problems.” 34 C.F.R. § 3 300.8(c)(4)(i). Although the term “SED” arises out of a different statutory scheme, 4 it is evident the bases for an “SED” relate and are relevant to the “domains” of 5 functioning. Compare id. with 20 C.F.R. § 416.926a(b)(1)(i-vi). 6 In light of Ms. Goveia’s specific use of term that speaks to functional 7 limitations and her ensuing treating relationship with Plaintiff, the ALJ should 8 have contacted Ms. Goveia to obtain a more fulsome medical source statement, lest 9 potentially significant and probative evidence from the only treating provider be 10 excluded from the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 11 Cir. 2001) (“The ALJ in a social security case has an independent duty to fully and 12 fairly develop the record and to assure that the claimant’s interests are 13 considered.”) (internal quotation marks and citations omitted). Contrary to the 14 Commissioner’s implicit assertion, see ECF No. 22 at 15, the Court cannot 15 conclude that any error with respect to Ms. Goveia was harmless. 16 B. Symptom Allegation Testimony 17 Plaintiff contends the ALJ erred by not properly assessing the symptom 18 allegation testimony, as offered by Plaintiff’s mother at the hearing. ECF No. 15 at 19 4-13. Where, as here, the ALJ determines a claimant has presented objective 20 medical evidence establishing underlying impairments that could cause the 21 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ 22 can only discount testimony as to symptom severity by providing “specific, clear, 23 and convincing” reasons supported by substantial evidence. Trevizo v. Berryhill, 24 871 F.3d 664, 678 (9th Cir. 2017). The Court concludes the ALJ failed to offer 25 clear and convincing reasons to discount the symptom allegation testimony. 26 The ALJ discounted the symptom allegation testimony as inconsistent with 27 the medical evidence. Tr. 724-25. However, because the ALJ erred by 28 discounting two medical opinions and failing to develop the record with respect to 1 Plaintiff’s treating counselor, and necessarily failed to properly evaluate the 2 medical evidence, as discussed above, this is not a valid ground to discount 3 Plaintiff’s testimony. The ALJ accordingly erred by discounting the symptom 4 allegation testimony. 5 SCOPE OF REMAND 6 This case must be remanded because the ALJ harmfully misevaluated the 7 medical evidence and the symptom allegation testimony. Plaintiff contends the 8 Court should remand for an immediate reinstatement of benefits. Such a remand 9 should be granted only in a rare case and this is not such a case. Apart from 10 developing the record with respect to Plaintiff’s treating counselor, the medical 11 opinions and the symptom allegation testimony must be reweighed and this is a 12 function the Court cannot perform in the first instance on appeal. Further 13 proceedings are thus not only helpful but necessary. See Brown-Hunter v. Colvin, 14 806 F.3d 487, 495 (9th Cir. 2015) (noting a remand for an immediate award of 15 benefits is an “extreme remedy,” appropriate “only in ‘rare circumstances’”) 16 (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 17 2014)). 18 On remand, the ALJ shall obtain an updated medical source statement from 19 Ms. Goveia, reevaluate the medical opinion evidence and symptom allegation 20 testimony, and reconsider the three-step sequential analysis. 21 CONCLUSION 22 Having reviewed the record and the ALJ’s findings, the Commissioner’s 23 final decision is REVERSED and this case is REMANDED for further 24 proceedings. Therefore, IT IS HEREBY ORDERED: 25 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is 26 GRANTED. 27 2. Defendant’s Motion for Summary Judgment, ECF No. 22, is 28 DENIED. 1 The District Court Executive is directed to file this Order and provide a copy 2 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 3 || the file shall be CLOSED. 4 IT IS SO ORDERED. 5 DATED March 17, 2023. ies. □□ oe ll de AL ER C. EKSTROM UNITED STATES MAGISTRATE JUDGE

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