Davis v. Commissioner of Social Security

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KYLEE D., CASE NO. 3:23-CV-5900-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 her application for Supplemental Security Income benefits (SSI). Pursuant to 28 U.S.C. § 17 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before 18 the undersigned. After considering the record, the Court concludes that this matter must be 19 reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings 20 consistent with this Order. 21 I. BACKGROUND 22 Plaintiff applied for SSI on October 28, 2016. Administrative Record (AR) 446–51. She 23 alleged disability beginning November 6, 2010. AR 17. After her application was denied initially 24 1 and upon reconsideration, she filed a written request for a hearing. AR 254–57. In July 2018, 2 Administrative Law Judge (ALJ) Laura Valente held a hearing in which Plaintiff was 3 represented. AR 44–85. ALJ Valente issued a decision finding Plaintiff not disabled in 4 November 2018 (AR 183–203) which was subsequently vacated by the Appeals Council (AR

5 204–07). On remand from the Appeals Council, ALJ Allen Erickson (the ALJ) held another 6 hearing in October 2020 (AR 86–124) and issued another unfavorable decision in December 7 2020 (AR 208–29) which was also subsequently vacated by the Appeals Council (AR 230–35). 8 The ALJ held a third hearing on June 9, 2022. AR 125–53. He issued a written decision 9 finding Plaintiff not disabled on July 25, 2022. AR 14–43. The Appeals Council denied 10 Plaintiff’s request for review, making the ALJ’s June 2022 decision the final agency action 11 subject to judicial review. AR 1–6. Plaintiff filed a Complaint in this Court on October 16, 2023. 12 Dkt. 5. 13 II. STANDARD 14 Pursuant to 42 U.S.C. § 405(g) this Court may set aside the Commissioner's denial of

15 social security benefits if the ALJ's findings are based on legal error or not supported by 16 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 17 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 18 III. DISCUSSION 19 In her opening brief, Plaintiff argues the ALJ erred in his consideration of several 20 medical opinions as well as his assessment of her subjective testimony. See generally Dkt. 11. 21 Plaintiff requests that the Court remand the case for a new hearing. Id. at 1. 22 23

24 1 A. Medical Opinions 2 Plaintiff challenges the ALJ’s assessment of the medical opinions of examining providers 3 David Zacharias, MD; Dan Neims, Psy.D; and Faulder Colby, PhD. Id. at 3–11. 4 Dr. Zacharias completed an opinion in February 2017. AR 972–76. He opined Plaintiff

5 had “very poor” abilities in the following areas: interacting with others, adapting to the usual 6 stresses in the workplace, and maintaining regular attendance in the workplace; and completing a 7 normal workday without interruption. AR 976. 8 Dr. Neims completed evaluations in August 2016 and October 2018. AR 799–802, 2338– 9 44. In both evaluations, he opined Plaintiff had marked limitations in the following areas: 10 communicating and performing effectively in a work setting; maintaining appropriate behavior 11 in a work setting; and completing a normal workday and workweek without interruptions from 12 psychologically based symptoms. AR 802, 2339. In September 2016, Dr. Faulder reviewed Dr. 13 Neims’ August 2016 opinion and concurred with his assessment of Plaintiff’s limitations. AR 14 804–05.

15 Plaintiff filed her application prior to March 27, 2017, and therefore, under the applicable 16 regulations, the ALJ must provide “specific and legitimate” reasons to reject the contradicted 17 opinions of examining medical sources like Drs. Zacharias, Neims, and Colby. See Lester v. 18 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The ALJ considered the opinions of Drs. Zacharias, 19 Neims, and Colby together, giving them little weight. AR 28. After summarizing the opinions, 20 the ALJ explained that they 21 are not consistent with the overall evidence showing that over time the claimant’s symptoms have responded to counseling and treatment records indicating improvement in 22 symptoms, the claimant was recently able to obtain housing with her fiancée and roommates, and she has reported that she no longer has panic attacks[.] 23 Id. (citing AR 978–1093, 1621–67, 2933–3468, 3682–3760, 3957–4030). 24 1 These were not legally sufficient reasons for rejecting the opinions of Drs. Zacharias, 2 Neims, and Colby. First, Plaintiff’s symptoms “respond[ing] to counseling” and improving over 3 time does not necessarily mean that the symptoms improved such that they no longer limited 4 Plaintiff. Symptoms that can be controlled “are not disabling.” See Warre v. Comm’r, 439 F.3d

5 1001, 1006 (9th Cir. 2006); see also Wellington v. Berryhill, 878 F.3d, 867, 876 (9th Cir. 2017). 6 But “some improvement” in a person’s symptoms “does not mean that the person’s impairments 7 no longer seriously affect her ability to function in a workplace.” See Holohan v. Massanari, 246 8 F.3d 1195, 1205 (9th Cir. 2001). 9 Here, the ALJ made no findings suggesting Plaintiff’s mental health symptoms had 10 improved such that they no longer affected her ability to function. See AR 23–28. The ALJ did 11 briefly discuss Plaintiff’s counseling and other mental health symptoms, but this discussion did 12 not make such a finding. See AR 26. The ALJ described Plaintiff’s counseling sessions, noting 13 that she “was processing grief related to her father withdrawing from her” during those sessions 14 and that Plaintiff was “noted to have an appropriate affect, oriented times three, engaged and

15 cooperative in sessions”. AR 26. But the ALJ failed to explain why this evidence suggested 16 Plaintiff’s mental symptoms were adequately controlled with counseling. Also, while the ALJ 17 stated Plaintiff was “noted to be stable on medication” in a single treatment note, AR 26 (citing 18 AR 3684), the ALJ did not explain why that note necessarily meant Plaintiff’s symptoms 19 improved such that they were no longer disabling. See Martinez v. Comm’r of Soc. Sec., 2021 20 WL 2915018 at *6 (E.D. Cal. July 12, 2021) (“‘[F]airly stable’ and ‘doing well’ are relative 21 terms.”) (citation omitted). And although the ALJ said Plaintiff’s “major depression was noted to 22 be in full remission,” AR 26 (citing AR 3696), the opinions in question were based not only on 23 her depression but also on her anxiety disorder, post-traumatic stress disorder, and borderline

24 1 personality disorder, see AR 973, 2339, 2343. Thus, without further explanation by the ALJ, the 2 Court cannot discern why the treatment notes suggesting Plaintiff’s mental symptoms improved 3 negated the medical opinions of Drs. Zacharias, Neims, and Colby. 4 Second, the ALJ’s statement that Plaintiff “was recently able to obtain housing with her

5 fiancée and roommates” does not meaningfully address any of the limitations set forward in the 6 medical opinions. AR 28. The ALJ’s duty to set forth his reasoning “in a way that allows for 7 meaningful review,” Brown-Hunter v. Colvin, 806 F.3d 486, 492 (9th Cir. 2015), requires 8 building an “accurate and logical bridge from the evidence to [the ALJ’s] conclusions.” Blakes v. 9 Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). In this case, that would require an explanation of 10 why Plaintiff’s housing situation was relevant to the medical opinions of Drs. Zacharias, Neims, 11 and Colby. 12 Defendant argues Plaintiff’s housing situation was relevant because some evidence in the 13 record suggested some of her mental health symptoms may have been exacerbated by living with 14 her mother. See Dkt. 15 at 7. But the ALJ made no finding suggesting Plaintiff’s housing

15 situation was relevant for this reason. See AR 23–28. Although the Court is “not deprived of [its] 16 faculties for drawing specific and legitimate inferences from the ALJ’s opinion,” Magallanes v. 17 Bowen, 881 F.2d 747, 755 (9th Cir. 1989), the Court “review[s] only the reasons provided by the 18 ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did 19 not rely,” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 20 Third, with respect to the ALJ’s statement that Plaintiff “has reported that she no longer 21 has panic attacks” (AR 28), Defendant acknowledges that this finding was not supported by 22 substantial evidence. See Dkt. 15 at 6 (“[I]t does not appear that Plaintiff reported she no longer 23 had any panic attacks at all . . . .”). Defendant points to evidence suggesting Plaintiff had fewer

24 1 panic attacks and argues that this nonetheless supports the ALJ’s decision. See Dkt. 15 at 6 2 (citing AR 3579, 3987, 3991, 4011). But the ALJ did not make a finding that Plaintiff’s panic 3 attacks had reduced in frequency such that they were no longer limiting, and the Court cannot 4 make such an inference. See Garrison, 759 F.3d at 1009; Holohan, 246 F.3d at 1205. Moreover,

5 the medical opinions in question were not based entirely on Plaintiff’s panic attacks. See AR 976 6 (Dr. Zacharias explaining opined limitations based in part on “interpersonal presentation,” 7 “history of social functioning,” “employment history,” “activities of daily living”); 2343 (Dr. 8 Neims indicating limitations based in part on Plaintiff’s history of being “deeply untrusting of 9 others,” “patterns of paranoid ideation,” “identity disturbance,” and “distal history of 10 parasuicidal behavior”). Without further explanation from the ALJ, it is unclear why the reduced 11 frequency of Plaintiff’s panic attacks negated the opinions of Drs. Zacharias, Neims, and Colby. 12 In sum, the ALJ failed to provide specific and legitimate reasons for giving little weight 13 to the opinions of Drs. Zacharias, Neims, and Colby. Because these opinions, if credited, could 14 result in work-related limitations not included in the RFC—such as limitations maintaining

15 attendance and communicating in the workplace—this error was not harmless. See Stout v. 16 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052, 1054 (9th Cir. 2006). 17 B. Remaining Issues 18 Plaintiff argues the ALJ erred in evaluating Plaintiff’s subjective testimony and the 19 medical opinion of Jennifer Auger, ARNP. See generally Dkt. 11. As the Court has found 20 reversible error in the ALJ’s evaluation of the medical opinions of Drs. Zacharias, Neims, and 21 Colby, the Court declines to consider Plaintiff’s remaining arguments. Rather, the Court directs 22 the ALJ to reevaluate Plaintiff’s testimony and all of the medical opinion evidence on remand 23 and reassess the RFC and as warranted by further consideration of the evidence.

24 1 IV. CONCLUSION 2 For the foregoing reasons, the Court REVERSES and REMANDS Commissioner’s 3 decision pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings 4 consistent with this Order.

5 Dated this 8th day of May, 2024. 6 A 7 David W. Christel United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24