FILED IN THE 5 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Oct 10, 2023 6 SEAN F. MCAVOY, CLERK 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9
10 TONI MICHELE E., 1 NO: 1:22-CV-03026-LRS 11 Plaintiff,
12 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 13 KILOLO KIJAKAZI, JUDGMENT AND DENYING COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR 14 SECURITY, SUMMARY JUDGMENT
15 Defendant.
16 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 17 ECF Nos. 10, 11. This matter was submitted for consideration without oral 18 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 19
20 1 The court identifies a plaintiff in a social security case only by the first name and 21 last initial in order to protect privacy. See LCivR 5.2(c). 1 represented by Special Assistant United States Attorney Lars J. Nelson. The Court, 2 having reviewed the administrative record and the parties’ briefing, is fully 3 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 10, is 4 granted and Defendant’s Motion, ECF No. 11, is denied.
5 JURISDICTION 6 Plaintiff Toni Michele E. (Plaintiff), filed for supplemental security income 7 (SSI) on January 6, 2016, and alleged an onset date of March 3, 2015. Tr. 185-90.
8 Benefits were denied initially, Tr. 105-08, and upon reconsideration, Tr. 114-24. 9 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on 10 September 14, 2017. Tr. 37-81. On June 4, 2018, the ALJ issued an unfavorable 11 decision, Tr. 12-31, and on January 7, 2020, the Appeals Council denied review. Tr.
12 1-6. Plaintiff appealed to the United States District Court for the Eastern District of 13 Washington, and on June 25, 2020, the Honorable Fred Van Sickle issued an order 14 remanding the matter for further proceedings. Tr. 1202-18.
15 On December 15, 2021, Plaintiff appeared at a second hearing, Tr. 1123-64, 16 and on December 27, 2021, the ALJ issued another unfavorable decision. Tr. 1087- 17 1108. The matter is now before this Court pursuant to 42 U.S.C. § 1383(c)(3). 18 BACKGROUND
19 The facts of the case are set forth in the administrative hearing and transcripts, 20 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 21 therefore only summarized here. 1 Plaintiff was 44 years old at the time of the first hearing. Tr. 64. She went to 2 school through the eleventh grade. Tr. 65. She has work experience in marketing 3 and vending and as a dietary aide. Tr. 65-67. At the first hearing, Plaintiff testified 4 she works two days a week and does light housework the rest of the week. Tr. 47.
5 She testified that she is unable to work full-time because she has severe pain if she is 6 on her feet too long. Tr. 53. Her hands go numb if she uses them too much. Tr. 53. 7 She has debilitating headaches and cannot get out of bed some days due to headache
8 pain. Tr. 53. She had neck surgery in 2015 and 2016 which stabilized her neck but 9 she still has a lot of pain. Tr. 56. At the second hearing, Plaintiff testified that in 10 addition to her physical problems, she testified that she has depression, anger issues, 11 and PTSD. Tr. 1144.
12 STANDARD OF REVIEW 13 A district court’s review of a final decision of the Commissioner of Social 14 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is
15 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 16 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 17 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 18 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and
19 citation omitted). Stated differently, substantial evidence equates to “more than a 20 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 21 In determining whether the standard has been satisfied, a reviewing court must 1 consider the entire record as a whole rather than searching for supporting evidence in 2 isolation. Id. 3 In reviewing a denial of benefits, a district court may not substitute its 4 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156
5 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 6 rational interpretation, [the court] must uphold the ALJ’s findings if they are 7 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674
8 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 9 decision on account of an error that is harmless.” Id. An error is harmless “where it 10 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 11 (quotation and citation omitted). The party appealing the ALJ’s decision generally
12 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 13 396, 409-10 (2009). 14 FIVE-STEP EVALUATION PROCESS
15 A claimant must satisfy two conditions to be considered “disabled” within the 16 meaning of the Social Security Act. First, the claimant must be “unable to engage in 17 any substantial gainful activity by reason of any medically determinable physical or 18 mental impairment which can be expected to result in death or which has lasted or
19 can be expected to last for a continuous period of not less than twelve months.” 42 20 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such 21 severity that he is not only unable to do his previous work[,] but cannot, considering 1 his age, education, and work experience, engage in any other kind of substantial 2 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to determine 4 whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v).
5 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 6 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 7 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b).
8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 11 “any impairment or combination of impairments which significantly limits [his or
12 her] physical or mental ability to do basic work activities,” the analysis proceeds to 13 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 14 this severity threshold, however, the Commissioner must find that the claimant is not
15 disabled. 20 C.F.R. § 416.920(c). 16 At step three, the Commissioner compares the claimant’s impairment to 17 severe impairments recognized by the Commissioner to be so severe as to preclude a 18 person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii).
19 If the impairment is as severe or more severe than one of the enumerated 20 impairments, the Commissioner must find the claimant disabled and award benefits. 21 20 C.F.R. § 416.920(d). 1 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess the 3 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work
5 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 6 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 7 At step four, the Commissioner considers whether, in view of the claimant’s
8 RFC, the claimant is capable of performing work that he or she has performed in the 9 past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable 10 of performing past relevant work, the Commissioner must find that the claimant is 11 not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing
12 such work, the analysis proceeds to step five. 13 At step five, the Commissioner should conclude whether, in view of the 14 claimant’s RFC, the claimant is capable of performing other work in the national
15 economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the 16 Commissioner must also consider vocational factors such as the claimant’s age, 17 education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant 18 is capable of adjusting to other work, the Commissioner must find that the claimant
19 is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 20 adjusting to other work, analysis concludes with a finding that the claimant is 21 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 1 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work; and (2) such work “exists in significant numbers
5 in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 6 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS
8 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 9 activity since January 6, 2016, the application date. Tr. 1092. At step two, the ALJ 10 found that Plaintiff has the following severe impairments: degenerative disc disease, 11 migraine headaches, and obesity. Tr. 1092. At step three, the ALJ found that
12 Plaintiff does not have an impairment or combination of impairments that meets or 13 medically equals the severity of a listed impairment. Tr. 1094. 14 The ALJ then found that Plaintiff has the residual functional capacity to
15 perform light work with the following additional limitations: 16 The claimant can occasionally lift and carry 20 pounds and frequently carry ten pounds. She can stand or walk for six hours in an eight-hour 17 workday and sit for six hours in an eight-hour workday, with the usual breaks. The claimant can occasionally climb ramps and stairs and 18 never climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, crouch, and crawl. The claimant must avoid concentrated 19 exposure to fumes, odors, dusts, gases, and poor ventilation and [must be] primarily in non-smoking environments and must avoid even 20 moderate exposure to vibrations and hazards.
21 Tr. 1095. 1 At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 1099. 2 At step five, after considering the testimony of a vocational expert and Plaintiff’s 3 age, education, work experience, and residual functional capacity, the ALJ found 4 that there are jobs that exist in significant numbers in the national economy that
5 Plaintiff can perform such as mail clerk, ticket taker, or office helper. Tr. 1100. 6 Thus, the ALJ found that Plaintiff has not been under a disability as defined in 7 the Social Security Act since January 6, 2016, the date the application was filed. Tr.
8 1100. 9 ISSUES 10 Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 supplemental security income under Title XVI of the Social Security Act. ECF No.
12 10. Plaintiff raises the following issues for review: 13 1. Whether the ALJ properly declined to reopen her prior application; 14 2. Whether the ALJ properly considered the medical opinion evidence;
15 3. Whether the ALJ properly considered Plaintiff’s mental impairments at 16 step two; and 17 4. Whether the ALJ properly evaluated Plaintiff’s symptom testimony. 18 ECF No. 10 at 2.
19 20 21 1 DISCUSSION 2 A. Prior Claim 3 Plaintiff contends the ALJ erred by failing to reopen her prior claim. ECF 4 No. 10 at 20. Plaintiff filed a previous Title XVI application for SSI on April 2,
5 2015, which was denied on August 20, 2015. Tr. 15. The ALJ noted that counsel 6 requested that the prior application be reopened, but the ALJ “does not find a basis 7 for reopening the claimant’s prior Title XVI application (20 CFR 416.1488).” Tr.
8 1090. The regulations provide that a decision “may be reopened” within 12 months 9 of the date of the initial determination “for any reason.” 20 C.F.R. § 416.1488. 10 Plaintiff observes that her current application date of January 6, 2016, was within 12 11 months of the prior determination. ECF No. 10 at 21. Plaintiff argues that certain
12 relevant evidence is excluded from the current claim if the prior claim is not 13 reopened. ECF No. 10 at 21. 14 The ALJ’s discretionary denial of Plaintiff’s request to re-open her prior claim
15 is beyond this Court’s review. See Taylor v. Heckler, 756 F.2d 872, 877 (9th Cir. 16 1985); Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985); see also 20 17 C.F.R. § 416.1403(a)(5) (denial of request to re-open not subject to judicial review). 18 The general rule is that the Secretary’s decision not to reopen a claim for benefits is
19 not a “final decision” within the meaning of § 405(g), and therefore courts lack 20 jurisdiction to review a decision not to reopen. Califano v. Sanders, 430 U.S. 99, 21 109 (1977). There is a limited exception to the general rule when the claimant has 1 challenged the decision not to reopen on constitutional grounds, id., which is not at 2 issue here. The Court does not have jurisdiction to review the ALJ’s decision not to 3 reopen Plaintiff’s prior claim. 4 B. Medical Opinions
5 Plaintiff contends the ALJ failed to properly consider the opinions of David 6 W. Shoemaker, M.D., David Morgan, Ph.D., and Dyke Dickie, PT. ECF No. 10 at 7 7-13. There are three types of physicians: “(1) those who treat the claimant
8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant but 10 who review the claimant’s file (nonexamining or reviewing physicians).” Holohan 11 v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted).
12 “Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s, and an examining physician’s opinion carries more weight than a 14 reviewing physician’s.” Id. “In addition, the regulations give more weight to
15 opinions that are explained than to those that are not, and to the opinions of 16 specialists concerning matters relating to their specialty over that of nonspecialists.” 17 Id. (citations omitted).2 18
19 2 For claims filed on or after March 27, 2017, the regulations changed the framework 20 for evaluation of medical opinion evidence. Revisions to Rules Regarding the 21 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 1 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 2 reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a
5 treating physician, if that opinion is brief, conclusory and inadequately supported by 6 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 7 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s
8 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 9 providing specific and legitimate reasons that are supported by substantial 10 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 11 (9th Cir 1995)).
12 1. David W. Shoemaker, M.D. 13 In August 2018, Plaintiff presented to Dr. Shoemaker, a treating physician, for 14 low back pain which exacerbated after she tripped and fell. Tr. 1456. On exam,
15 Plaintiff’s straight leg raise was limited by pain, she had decreased pinprick, and she 16 complained of numbness and tingling. Tr. 1457. Dr. Shoemaker repeated an 17 epidural steroid injection and prescribed medication and physical therapy. Tr. 1457. 18 He also assessed the following restriction: “[w]eight lifting, pushing and overhead
20 2017); 20 C.F.R. § 416.920c. Plaintiff’s claim was filed in January 2016, so the 21 previous method of evaluating medical opinions applies. 1 restrictions nothing more than 10 pounds.” Tr. 1457. Dr. Shoemaker assessed the 2 same or similar restrictions in November 2018, September 2019, and August 2020, 3 and in November 2019 indicated that Plaintiff’s lifting restriction was “nothing more 4 than a gallon of milk.” Tr. 1429.
5 The ALJ did not address the lifting, pushing, and overhead restrictions 6 assessed by Dr. Shoemaker. Tr. 1096-99. The ALJ need not discuss all evidence 7 presented but the ALJ must explain why significant probative evidence has been
8 rejected. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). For claims 9 filed before March 27, 2017, like this one, medical opinions are statements from 10 acceptable medical sources that reflect judgments about the nature and severity of 11 the claimant’s impairments, including the claimant’s symptoms, diagnosis and
12 prognosis, what the claimant can do despite any impairment, and the claimant’s 13 physical or mental restrictions. 20 C.F.R. § 416.927(a)(1). Dr. Shoemaker’s 14 statements regarding lifting, pushing, and overhead limitations are opinions about
15 Plaintiff’s physical limitations and are thus relevant evidence which should be 16 discussed by the ALJ. The ALJ’s oversight of these opinion statements constitutes 17 error. 18 Defendant argues that the ALJ’s rejection of “disability ratings” based on the
19 results of the Oswestry Disability index amounts to a rejection of Dr. Shoemaker’s 20 opinions. ECF No. 11 at 13. The Court is not persuaded. First, the ALJ did not cite 21 to or reference any of the pages with Dr. Shoemaker’s assessment of limitations in 1 his discussion of the rejected disability ratings. Tr. 1099. The ALJ cited Dr. 2 Shoemaker’s December 2015 and September 2020 office visit notes which indicated 3 that Plaintiff had scores of 26 and 40, respectively, on Oswestry questionnaires. 4 ECF No. 1099 (citing Ex. 3F p. 45/Tr. 384, 18F p. 8/Tr. 1412). However, Dr.
5 Shoemaker did not assess any lifting, pushing, or overhead restriction on those dates. 6 Tr. 386, 1413. The ALJ also cited the functional assessment of Dyke Dickie, PT, 7 which was signed by Dr. Shoemaker to certify that physical therapy services were
8 authorized, but also indicated findings of limitations in gait, mobility, and flexibility, 9 and that Plaintiff was limited in any lifting, kneeling, squatting, bending, and 10 twisting. Tr. 1099 (citing Ex. 22F p. 70/Tr. 1579). None of this evidence supports 11 the conclusion that the ALJ explicitly or implicitly rejected Dr. Shoemaker’s
12 statements regarding Plaintiff’s limitations. 13 Second, while it is true that Dr. Shoemaker on occasion considered Plaintiff’s 14 self-report in the form of the results of the Oswestry questionnaire, it is not clear that
15 Dr. Shoemaker relied only on the results of Oswestry questionnaire in making his 16 assessments. See Tr. 1432-33, 1453-54, 1456-57 (each referencing Oswestry 17 results); see also Tr. 1416-18, 1429 (neither mentioning Oswestry results). For 18 example, as noted supra, in August 2018 Dr. Shoemaker’s opinion also weighed
19 exam findings and other information contained in the office visit notes. Tr. 1432-33. 20 Similarly, Mr. Dickie’s assessment, which was signed by Dr. Shoemaker, includes 21 objective findings and a functional assessment. Tr. 1578-79. The ALJ’s failure to 1 address Dr. Shoemaker’s various assessments was an error. The matter must be 2 remanded for the ALJ to consider Dr. Shoemaker’s opinions regarding Plaintiff’s 3 lifting, pushing, and overhead limitations. 4 2. Dyke Dickie, PT
5 For claims before March 27, 2017, the opinion of an acceptable medical 6 source, such as a physician or psychologist, is given more weight than an opinion 7 from a source who is not an acceptable medical source or who is a non-medical
8 source. 20 C.F.R. § 416.927; Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996); 9 see 20 C.F.R. § 416.902 (acceptable medical sources include licensed physicians, 10 licensed or certified psychologists, licensed optometrists, licensed podiatrists, 11 qualified speech-language pathologists, licensed audiologists, licensed advanced
12 practice registered nurses, and licensed physician assistants). However, an ALJ is 13 required to consider evidence from non-acceptable medical sources, such as physical 14 therapists. 20 C.F.R. § 416.927(f). The ALJ must consider evidence from non-
15 acceptable medical sources but may discount testimony from these sources if the 16 ALJ “gives reasons germane to each witness for doing so.” Molina, 674 F.3d at 17 1104. 18 Mr. Dickie’s physical therapy treatment notes from 2016-17 and January 2021
19 contain various assessments of functional limitations such as limited in daily 20 activities, overhead motions, behind the back motions, washing, and sometimes 21 dressing; limited in upper extremity activities and needs to maintain light weight and 1 low stress activity; limited gait due to pain; limited in stairs due to recent falls; 2 limited in overhead type motions, any heavy lifting or overuse activities; and limited 3 gait, mobility, flexion, kneeling, squatting, bending, or twisting. Tr. 1530, 1541, 4 1560, 1570, 1578.
5 The only record from Mr. Dickie addressed by the ALJ is a September 2017 6 initial evaluation and plan of care indicating the Plaintiff is “limited in overhead type 7 motions, any heavy lifting or overuse activities.” Tr. 1098 (citing Tr. 15413). The
8 ALJ rejected the September 2019 assessment as vague, lacking permanence, and “in 9 the context of physical therapy that was intended to improve the claimant’s 10 functioning.” Tr. 1098. The ALJ’s oversight of the other limitations assessed by 11 Mr. Dickie at different points in the record was erroneous and reflects a lack of
12 consideration of the overall context regarding the physical therapy treatment record. 13 As a result, Mr. Dickie’s assessments of limitations should also be reconsidered on 14 remand.
15 3. David Morgan, Ph.D. 16 In November 2020, Dr. Morgan completed a DSHS Psychological/Psychiatric 17 Evaluation form and diagnosed depression and PTSD. Tr. 1459-63. He opined that 18
19 3 Mr. Dickie’s physical therapy note was co-signed by Beth McManis, ARNP, who 20 certified that the rehabilitative services were required and authorized. It does not 21 appear that her signature represents the independent opinion of Ms. McManis. 1 Plaintiff has marked limitations in five functional areas: the ability to perform 2 activities within a schedule, maintain attendance, and be punctual; the ability to 3 adapt to changes in the work setting; the ability to communicate and perform 4 effectively in a work setting; the ability to maintain appropriate behavior in a work
5 setting; and the ability to complete a normal workday and work week without 6 interruptions from psychological symptoms. Tr. 1461. 7 The ALJ gave little weight to Dr. Morgan’s opinion. Tr. 1098. If a treating or
8 examining physician’s opinion is uncontradicted, an ALJ may reject it only by 9 offering “clear and convincing reasons that are supported by substantial evidence.” 10 Bayliss, 427 F.3d at 1216. Dr. Morgan’s opinion is the only psychological opinion 11 in the record and is thus uncontradicted. The ALJ’s reasons for rejecting the opinion
12 must therefore be clear and convincing. 13 First, the ALJ found that Dr. Morgan’s opinion is not supported by Dr. 14 Morgan’s findings and Dr. Morgan did not explain the basis for the limitations
15 assessed. Tr. 1098. A medical opinion may be rejected by the ALJ if it is 16 conclusory, contains inconsistencies, or is inadequately supported. Bray, 554 F.3d at 17 1228; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr. Morgan 18 completed the “Clinical Findings” section of the form and indicated that Plaintiff’s
19 depression was of moderate severity and her PTSD was of moderate to marked 20 severity on a daily basis based on various symptoms. Tr. 1461. The ALJ did not 21 comment on this portion of the opinion which explains at least minimally the basis 1 for Dr. Morgan’s findings. The ALJ dismissed some abnormal mental status exam 2 findings as unsupportive of Dr. Morgan’s opinion, but it is not clear what basis there 3 is for doing so. It is improper for an ALJ to act as his own medical expert, 4 substituting his opinion for the opinion of a medical doctor. Day v. Weinberger, 522
5 F.2d 1154, 1156 (9th Cir. 1975); see also Nguyen v. Chater, 172 F.3d 31, 35 (1st 6 Cir. 1999) (As a lay person, an ALJ is “not at liberty to ignore medical evidence or 7 substitute his own views for uncontroverted medical opinion”; he is “simply not
8 qualified to interpret raw medical data in functional terms.”); Balsamo v. Chater, 9 142 F.3d 75, 81 (2d Cir.1998) (“‘[T]he ALJ cannot arbitrarily substitute his own 10 judgment for competent medical opinion.’” (citations omitted)). This is not a clear 11 and convincing reason supported by substantial evidence.
12 Second, the ALJ found the limitations assessed by Dr. Morgan are 13 inconsistent with the record as a whole. Tr. 1098. An ALJ may discredit medical 14 opinions that are unsupported by the record as a whole or by objective medical
15 findings. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 16 2004). The ALJ concluded that Plaintiff’s “scant treatment history for mental 17 health” contradicts these findings. However, “the fact that claimant may be one of 18 millions of people who did not seek treatment for a mental disorder until late in the
19 day is not a substantial basis on which to conclude that [a psychologist’s] 20 assessment of claimant’s condition is inaccurate.” Nguyen v. Chater, 100 F.3d 21 1462, 1465 (9th Cir. 1996). Further, the ALJ found Plaintiff “consistently presents 1 with normal mood and affect, intact memory, and cooperative and pleasant 2 behavior,” but it is unclear how five records from four office visits reflecting 3 normal presentation over the course of six years of medical records demonstrates a 4 consistent presentation. Tr. 1098 (citing Tr. 415, 1449, 1508, 1710, 1713-14).
5 Plaintiff cites two pages of abnormal mental status findings and treatment for 6 psychological symptoms which were not addressed by the ALJ. ECF No. 10 at 5- 7 6. The ALJ’s findings do not constitute a clear and convincing reason supported
8 by substantial evidence. 9 The ALJ had a heightened duty to provide clear and convincing reasons 10 supported by substantial evidence to justify giving no weight to Dr. Morgan’s 11 uncontradicted medical opinion. The ALJ’s discussion of the evidence and the
12 reasons given for rejecting Dr. Morgan’s opinion do not constitute clear and 13 convincing reasons supported by substantial evidence. On remand, the ALJ should 14 reconsider Dr. Morgan’s opinion and the psychological record and ensure that
15 substantial evidence supports the weight assigned to the opinion. It may be helpful 16 to obtain a consultative or expert opinion regarding Plaintiff’s mental health 17 conditions. 18 C. Step Two – Mental Impairments
19 Plaintiff argues the ALJ erred by not finding her mental disorders to be severe 20 impairments at step two. ECF No. 10 at 4. The step two finding is based on the 21 same evaluation of the evidence the ALJ used to improperly reject Dr. Morgan’s 1 opinion. Tr. 1093, 1098. Because Dr. Morgan’s opinion and the psychological 2 evidence must be considered, and because the ALJ may further develop the record 3 by obtaining a consultative or expert psychological opinion, the step two finding 4 must also be reconsidered on remand.
5 D. Symptom Testimony 6 Plaintiff challenges the ALJ's consideration of Plaintiff's symptom claims. 7 ECF No. 10 at 13-21. The ALJ found Plaintiff’s “statements concerning the
8 intensity, persistence, and limiting effects of these symptoms are not entirely 9 consistent with the medical evidence and other evidence in the record for the reasons 10 explained in this decision.” Tr. 1096. The evaluation of a claimant’s symptom 11 statements relies, in part, on the assessment of the medical evidence. See 20 C.F.R.
12 § 416.929(c); S.S.R. 16-3p. Because the case is remanded for the ALJ to readdress 13 the medical opinions discussed supra, a new assessment of Plaintiff’s subjective 14 symptom statements will be necessary.
15 CONCLUSION 16 Having reviewed the record and the ALJ’s findings, this Court concludes the 17 ALJ’s decision is not supported by substantial evidence and free of harmful legal error. 18 Plaintiff requests remand for reconsideration of the evidence. On remand, the ALJ is
19 instructed to conduct a new sequential analysis after reconsidering the medical and 20 21 1 || psychological opinion evidence. The ALJ may develop the psychological record 2 || by obtaining a consultative or expert psychological opinion. 3 Accordingly, 4 1. Plaintiff's Motion for Summary Judgment, ECF No. 10, is GRANTED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is DENIED. 6 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order 7|| and provide copies to counsel. Judgment shall be entered for Plaintiff and the file 8 || shall be CLOSED. 9 DATED October 10, 2023.
ll LONNYR.SUKO Senior United States District Judge 12 13 14 15 16 17 18 19 20 21