Dagnese v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: May 25, 2021
• Docket: 2:20-cv-01258
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CASSANDRA D., 8 Plaintiff, Case No. C20-1258 RSM 9 v. ORDER REVERSING DENIAL OF 10 BENEFITS AND REMANDING COMMISSIONER OF SOCIAL SECURITY, FOR FURTHER 11 ADMINISTRATIVE Defendant. PROCEEDINGS 12

13 Plaintiff appeals denial of his1 application for Supplemental Security Income. Plaintiff 14 contends the ALJ erred by rejecting his testimony and three medical sources’ opinions. Dkt. 22. 15 As discussed below, the Court REVERSES the Commissioner’s final decision and REMANDS 16 the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 17 BACKGROUND 18 Plaintiff is 28 years old, has a high school education, and has no past relevant work. Dkt. 19 20, Admin. Transcript (Tr.) 26. Plaintiff applied for benefits on January 11, 2018, and alleges 20 disability as of the application date. Tr. 16. After conducting a hearing in October 2019, the 21 ALJ issued a decision finding Plaintiff not disabled. Tr. 34-76, 16-28. The ALJ found Plaintiff 22

23 1 Plaintiff testified to preferring male pronouns. Tr. 39-40. ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 had the severe impairments of obesity, migraines, depression, anxiety, and post-traumatic stress 2 disorder (PTSD). Tr. 19. The ALJ found Plaintiff had the residual functional capacity (RFC) to 3 perform light work, without teamwork or close coordination, and with only casual public 4 interaction. Tr. 21. 5 DISCUSSION 6 This Court may set aside the Commissioner’s denial of Social Security benefits only if 7 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 8 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 9 A. Plaintiff’s Testimony 10 Where, as here, an ALJ determines a claimant has presented objective medical evidence

11 establishing underlying impairments that could cause the symptoms alleged, and there is no 12 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to 13 symptom severity by providing “specific, clear, and convincing” reasons supported by 14 substantial evidence. Trevizo, 871 F.3d at 678. 15 Plaintiff testified to difficulty interacting with people, inability to sit, stand, or walk more 16 than an hour at a time, and the need to spend most of the day lying down “[a]lmost every day” 17 due to migraines and other impairments. Tr. 50; Tr. 280, 48-49, 47. The ALJ discounted 18 Plaintiff’s testimony of disabling physical and mental impairments based on conflict with 19 objective medical evidence, improvement with treatment, a situational component to mental 20 limitations, and inconsistency with the record. Tr. 22-24.

21 1. Objective Medical Evidence 22 An ALJ may reject claimant testimony based on contradiction by medical evidence, but 23 not for mere lack of support in the medical evidence. See Carmickle v. Comm’r, Soc. Sec. ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a 2 sufficient basis for rejecting a claimant’s subjective testimony.”); Burch v. Barnhart, 400 F.3d 3 676, 681 (9th Cir. 2005) (“lack of medical evidence cannot form the sole basis for discounting 4 pain testimony”). 5 Based on an “unremarkable” neurologic examination and “negative” MRI, the ALJ found 6 Plaintiff’s migraine testimony was “out of proportion with the objective findings.” Tr. 22-23 7 (citing Tr. 557, 759). Plaintiff contends these tests are only used to rule out potential causes of 8 headache, and thus normal results do not contradict his testimony. The Commissioner repeats 9 the ALJ’s statements, but fails to address Plaintiff’s arguments. The Court agrees with Plaintiff. 10 The ALJ found migraines a severe impairment. Tr. 19. At most, the clinical findings fail to

11 support Plaintiff’s testimony, but they do not contradict it. 12 The ALJ discounted Plaintiff’s mental symptom testimony based on “minimal psychiatric 13 observations.” Tr. 23. The ALJ cited findings such as normal orientation, speech, behavior, or 14 eye contact, but failed to explain how these contradict Plaintiff’s testimony of extreme social 15 difficulty. Id. The ALJ acknowledged several occasions when providers documented 16 abnormalities in mood and affect, and sometimes thought process. Id (citing Tr. 441, 727, 739, 17 742, 792, 796); see also Tr. 399, 463, 744. The ALJ cited two instances of “Normal” affect and 18 “Euthymic” mood. Tr. 798, 800 (however, mood was also “Elevated”). The prevalence of 19 abnormal mood and affect in the record as a whole indicates the ALJ’s finding of minimal 20 abnormalities was not supported by substantial evidence.

21 However, the ALJ also found clinical findings of “intact” concentration and recent and 22 remote memory contradicted Plaintiff’s testimony of memory impairments and inability to pay 23 attention for more than five minutes. Tr. 441, 355; see also Tr. 285 (“I have memory/ ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 understanding issues”), 557 (“intact” concentration and recent and remote memory). This 2 finding was supported by substantial evidence, and was sufficient to discount testimony of 3 extreme concentration and memory impairments. 4 Conflict with medical evidence was not a clear and convincing reason to discount 5 Plaintiff’s testimony, except with regard to memory and concentration. 6 2. Improvement 7 The ALJ discounted Plaintiff’s migraine testimony based on improvement with 8 treatment. Tr. 23. “[E]vidence of medical treatment successfully relieving symptoms can 9 undermine a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). 10 However, making “some improvement does not mean that the person’s impairments no longer

11 seriously affect her ability to function in a workplace.” Holohan v. Massanari, 246 F.3d 1195, 12 1205 (9th Cir. 2001). 13 An ALJ may not reject evidence based on an inaccurate portrayal of the record. See 14 Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (ALJ’s decision unsupported by 15 substantial evidence where his “paraphrasing of record material is not entirely accurate regarding 16 the content or tone of the record”). Here, the ALJ misapprehended several of the treatment 17 records he cited. The ALJ cited a January 2018 treatment note stating Plaintiff’s symptoms were 18 “better overall,” but that referred to vertigo, not migraines. Tr. 23, 436. The ALJ cited an 19 August 2018 record reporting only “1-2 major and a handful of minor” episodes, but this was 20 referring to “dizzy spells.” Tr. 754. The note stated “headaches are better,” but Plaintiff still had

21 “8-10 per month” even with medication. Id. Finally, the ALJ cited a July 2018 treatment note 22 stating “[m]igraines x2 in past month, improved with sumatriptan.” Tr. 722. The note was from 23 a psychiatric appointment, not one focused on migraines. Even if accurate, the fact that Plaintiff ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 had one relatively good month with only two migraines does not contradict his testimony of 2 about eight to ten migraine days per month, consistent with the rest of the record. Tr. 47; see 3 also Tr. 759 (November 2018 treatment note reporting 10-15 severe headaches per month). 4 Improvement with treatment was not a clear and convincing reason to discount Plaintiff’s 5 testimony. 6 3. Situational Component 7 The ALJ found there was a “situational component” to Plaintiff’s mental impairments, 8 because he told mental health providers of “ongoing intermittent interpersonal conflict, 9 alienation, or other [stressful] difficulties.” Tr. 23 (citing Tr. 420-21, 439, 803, 805). The ALJ’s 10 finding is not supported by substantial evidence. One citation merely shows a “[m]ildly

11 [s]tressful [e]nviroment,” insufficient to cause disabling limitations. Tr. 420-21. A January 12 2018 treatment note documents “generalized worry” over medical issues, financial concerns, and 13 “a great deal of worry about past treatment as well as current treatment considerations.” Tr. 439. 14 Accordingly, the provider assessed “[g]eneralized anxiety disorder.” Tr. 441. In other words, 15 the worrying is part of Plaintiff’s impairment. In January and March 2019, Plaintiff complained 16 about roommates. Tr. 803, 805. However, at the October 2019 hearing, Plaintiff explained he 17 left that housing situation in August 2019 because it was “too stressful,” but his impairments 18 remained. Tr. 61. 19 A situational component was not a clear and convincing reason to discount Plaintiff’s 20 testimony.

21 4. Inconsistencies 22 The ALJ found there were a number of “discrepancies that detract from the reliability of 23 the claimant’s allegations.” Tr. 24. None, however, actually contradict Plaintiff’s testimony. ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 a) Work 2 The ALJ cited “evidence [Plaintiff] has continued to work” after the alleged onset date 3 but failed to explain the significance of Plaintiff’s extremely minimal work activity. Tr. 24. At 4 the hearing, the ALJ asked Plaintiff about a January 2018 treatment note stating he did “pin-up 5 work and character designs.” Tr. 429. Plaintiff confirmed he had, “earning less than $100 a 6 month,” but more recently “ha[d]n’t been able to do that.” Tr. 63-64. There is no indication that 7 this work, done at home for about “four to eight hours a month,” contradicted Plaintiff’s 8 testimony. Tr. 66. Other records the ALJ cited, such as Plaintiff reporting “starting a 9 webcom[i]c and character design” or that he “backed off of working,” do not indicate work 10 activity inconsistent with Plaintiff’s testimony. Tr. 415, 616. In August 2018, Plaintiff reported

11 that, after taking a break, he had “a full queue of commissions” and was “feeling more hopeful 12 about being able to support [him]self.” Tr. 745. But there is no indication Plaintiff actually 13 achieved the ability to support himself. Plaintiff’s minimal work, done at home and on his own 14 schedule, does not contradict his testimony. 15 b) Agoraphobia 16 The ALJ found Plaintiff’s claims of agoraphobia inconsistent with having friends, 17 engaging in a polyamorous relationship, and going to the state fair and farmers market. Tr. 24. 18 The ALJ cited only two mentions of friends, and none of polyamorous activity, in the entire 19 record. Tr. 795, 807. This does not contradict Plaintiff’s testimony he only sees friends “[f]ace 20 to face, maybe once or twice a month tops.” Tr. 57.

21 In May 2019, Plaintiff reported he “[w]ill go to the state fair” and uses food stamps “at 22 farmers market.” Tr. 838. However, Plaintiff never testified he cannot be in public at all, but 23 that he needs to be accompanied by his partner. See Tr. 283 (shops in stores; can’t go out alone ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 because “I feel extremely uncomfortable without my partner”). Inconsistency was not a clear 2 and convincing reason to discount Plaintiff’s testimony of agoraphobia. 3 c) Panic 4 The ALJ cited treatment notes from about a year before the alleged onset date stating 5 Plaintiff experienced panic at a crowded public event, and did not pick up medication despite 6 messages it was ready. Tr. 24 (citing Tr. 467, 485). The ALJ failed to explain how this 7 undermined Plaintiff’s testimony regarding the relevant period. Plaintiff consistently reported 8 panic attacks during the relevant period. See, e.g., Tr. 784 (September 2018: “Panic attacks have 9 been occurring more fre[]quently in past 2 weeks”), 838 (April 2019: “Panic continues and 10 perhaps increased in frequency, last time was yesterday.”). The ALJ failed to identify any

11 inconsistency undermining Plaintiff’s testimony. 12 d) Medication Side Effects 13 The ALJ indicated Plaintiff’s symptoms “may be at least partly attributable to 14 medication” side effects. Tr. 24. But an ALJ must account for limitations arising both directly 15 from impairments and indirectly from medication needed to treat them. SSR 96-8p (“The RFC 16 assessment must be based on all of the relevant evidence in the case record, [including] side 17 effects of medication”). The ALJ identified no discrepancy undermining Plaintiff’s testimony. 18 Discrepancy with the record was not a clear and convincing reason to discount Plaintiff’s 19 testimony. 20 The Court concludes the ALJ erred by discounting Plaintiff’s testimony, except regarding

21 memory and concentration impairment. 22 B. Medical Opinions The parties disagree on the standard of review, but neither contends the difference 23 ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 between the two standards would change the outcome here. Because Plaintiff filed his claim 2 after March 27, 2017, new regulations apply to the ALJ’s evaluation of medical opinion 3 evidence. The ALJ must articulate and explain the persuasiveness of an opinion or prior finding 4 based on “supportability” and “consistency,” the two most important factors in the evaluation. 5 20 C.F.R. § 416.920c(a), (b). The “more relevant the objective medical evidence and supporting 6 explanations presented” and the “more consistent” with evidence from other sources, the more 7 persuasive a medical opinion or prior finding. Id. at (c)(1)-(2). At the least, this appears to 8 necessitate that an ALJ specifically account for the legitimate factors of supportability and 9 consistency in addressing the persuasiveness of a medical opinion. The Court must, moreover, 10 continue to consider whether the ALJ’s analysis has the support of substantial evidence. See 42

11 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by 12 substantial evidence, shall be conclusive”). 13 1. Treating Physician Lindsay Gunnell, M.D. 14 In May 2018, Dr. Gunnell opined Plaintiff needed to lie down during the day due to 15 migraine/vertigo. Tr. 574. He could sit six hours per day, rarely handle, rarely reach above 16 shoulders or towards floor, and lift and carry five to ten pounds. Tr. 574-75. In October 2019, 17 Dr. Gunnell opined Plaintiff could stand/walk less than two hours, sit two to four hours, and 18 would need to recline four to six hours per day. Tr. 781. 19 The ALJ found these opinions “not … persuasive” because Dr. Gunnell provided “no 20 narrative” and her opinions were inconsistent with the medical evidence. Tr. 25. However,

21 opinions “based on significant experience with [the claimant] and supported by numerous 22 records [are] entitled to weight that an otherwise unsupported and unexplained check-box form 23 would not merit….” Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). It was error to ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 reject Dr. Gunnell’s opinions based on a lack of narrative explanation in the opinion itself, when 2 the record contained numerous treatment records from her practice. See, e.g., Tr. 424-536. 3 The ALJ found Dr. Gunnell’s opinions inconsistent with “negative imaging, minimal 4 difficulties in physical examinations, and improvement in symptoms.” Tr. 25. As discussed 5 above, negative imaging did not contradict migraine impairments. Neither the ALJ nor the 6 Commissioner identified any physical examination findings that contradicted Dr. Gunnell’s 7 opinions. And the record did not reveal sufficient improvement to contradict Dr. Gunnell’s 8 opinions. See, e.g., Tr. 754 (Plaintiff still had 8-10 migraines per month with medication). 9 The Commissioner argues Dr. Gunnell’s opinion was based to a large extent on 10 Plaintiff’s unreliable self-reports and not clinical evidence. Dkt. 23 at 13. The ALJ’s decision

11 does not contain such an analysis and the Commissioner’s contention is thus an improper post 12 hoc argument upon which the Court cannot rely. See Bray v. Comm’r of Soc. Sec. Admin., 554 13 F.3d 1219, 1225 (9th Cir. 1995). Moreover, because the ALJ erred in discounting Plaintiff’s 14 testimony, overreliance on it would not have been a valid basis to reject Dr. Gunnell’s opinions. 15 The Court concludes the ALJ erred by discounting Dr. Gunnell’s opinions. 16 2. Treating Providers Megan Touhey, M.S.W., and Dierdre McHugh, DNP, ARNP 17 Ms. Touhey and Ms. McHugh provided several letters opining marked impairments in 18 mental work activities. Tr. 394, 549, 550-51, 750, 751-52, 776-79, 783. The ALJ discounted 19 these opinions as unsupported by a narrative explanation and inconsistent with mental health 20 records. Tr. 25. It was error to reject the opinions based on a lack of narrative explanation, 21 when the record contained their extensive treatment records. See Tr. 698-748, 784-854; 22 Garrison, 759 F.3d at 1013. 23 ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 The ALJ found the opinions inconsistent with “minimal” psychological abnormalities, 2 “the claimant’s inconsistent statements, and a situational component to the claimant’s 3 allegations.” Tr. 25. As discussed above, the ALJ’s finding of minimal abnormalities was not 4 supported by substantial evidence, except regarding memory and concentration, and substantial 5 evidence did not support the ALJ’s findings of inconsistent statements or a situational 6 component to mental impairments. 7 The Court concludes the ALJ erred by discounting Ms. Touhey’s and Ms. McHugh’s 8 opinions. 9 3. State Agency Doctors 10 Plaintiff asserts “neither the DDS nor the ALJ considered upper extremity limitations or

11 limitations imposed by the claimant’s migraines.” Dkt. 22 at 9. This assertion is incorrect, as 12 both the State agency doctors and the ALJ considered upper extremity impairments and 13 migraines. See Tr. 85, 94, 19, 23. Moreover, Plaintiff fails to explain the relevance of this 14 assertion. It is not enough to present an argument in the skimpiest way, and leave the Court to 15 do counsel’s work by framing the argument and putting flesh on its bones through a discussion 16 of the applicable law and facts. Without more, Plaintiff’s assertion is insufficient to establish 17 harmful error. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929-30 (9th Cir. 2003) (court 18 “will not consider any claims that were not actually argued in appellant’s opening brief”). The 19 Court need not address this asserted error further. Carmickle, 533 F.3d at 1161 n.2 (declining to 20 address issues not argued with specificity in briefing).

21 C. Scope of Remand 22 Plaintiff asserts “[i]f benefits are not paid outright this case should be remanded for a de 23 novo hearing.” Dkt. 22 at 9. Remand for an award of benefits “is a rare and prophylactic ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 2 (9th Cir. 2017). It requires establishing the ALJ failed to provide legally sufficient reasons for 3 rejecting evidence, there are no outstanding issues for the ALJ to resolve, and the improperly 4 rejected evidence would require the ALJ to find the claimant disabled on remand. Treichler v. 5 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). Even when these rare 6 circumstances are present, the Court retains discretion to remand for further proceedings, 7 especially “when the record as a whole creates serious doubt as to whether the claimant is, in 8 fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at 1021. 9 Plaintiff has made no effort to establish the three requirements are met to remand for 10 benefits. Outstanding issues remain that the ALJ must resolve. For example, Dr. Gunnell

11 opined handling limits due to carpal tunnel syndrome, which the ALJ found “was ruled out with 12 testing.” Tr. 19; Tr. 575. The Court concludes the rare circumstances necessary to remand for 13 benefits are not present. Even if they were, the Court would exercise its discretion to remand for 14 further proceedings because the record as a whole creates doubt as to disability. For example, 15 Plaintiff described himself in March and April 2018 as a “full time artist and illustrator” who 16 “draws all day.” Tr. 703, 590. A mental health provider assessed him with only “Mild 17 Functional Impairment” in January 2018. Tr. 416. These uncertainties make remand for an 18 award of benefits inappropriate. 19 The Court concludes the case should be remanded for further administrative proceedings. 20 CONCLUSION

21 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 22 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. 23 § 405(g). On remand, the ALJ should reevaluate Plaintiff’s testimony and the opinions of Dr. ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR 1 Gunnell, Ms. Touhey, and Ms. McHugh; reassess the RFC as appropriate; and continue to step 2 five as necessary. 3 DATED this 25th day of May, 2021.

4 A 5 6 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 7

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER REVERSING DENIAL OF BENEFITS AND REMANDING FOR