Fueston v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: July 16, 2020
• Docket: 3:20-cv-05049
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CHRISTOPHER F., CASE NO. 3:20-CV-5049-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 I. INTRODUCTION 16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the 17 Commissioner of Social Security’s (“Commissioner”) denial of Plaintiff’s application for 18 supplemental security income (“SSI”) benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of 19 Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter 20 heard by the undersigned Magistrate Judge. See Dkt. 2. 21 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 22 erred in evaluating the opinions of examining psychologists Terilee Wingate, Ph.D. and Phillip 23 Gibson, Ph.D., and evaluating Plaintiff’s testimony. Because the ALJ erred in evaluating the 24 1 opinions of two psychologists, the ALJ must reevaluate at step two whether Plaintiff has any 2 severe mental impairments. Accordingly, this matter is reversed and remanded pursuant to 3 sentence four of 42 U.S.C. § 405(g) to the Commissioner for further proceedings consistent with 4 this Order.

5 II. FACTUAL AND PROCEDURAL HISTORY 6 Plaintiff filed an application for SSI in September 2016, alleging disability as of February 7 28, 2014. See Dkt. 10, Admin. Record (“AR”), 154–55, 274–80. The application was denied on 8 initial administrative review, and on reconsideration. See AR 154–65, 167–79. A hearing was 9 held before ALJ Allen Erickson on September 18, 2018. See AR 40–102. In a decision dated 10 December 3, 2018, ALJ Erickson determined Plaintiff to be not disabled. See AR 21–33. The 11 Appeals Council denied review. See AR 1–4. 12 III. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 14 social security benefits if the ALJ’s findings are based on legal error or not supported by

15 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 16 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 17 IV. DISCUSSION 18 A. Whether the ALJ Reasonably Rejected Dr. Wingate’s Opinions 19 Plaintiff contends the ALJ failed to give specific and legitimate reasons for rejecting Dr. 20 Wingate’s opinions. See Dkt. 13, pp. 4–7. Dr. Wingate examined Plaintiff on April 30, 2018. See 21 AR 511–19. She opined Plaintiff was markedly limited in his ability to perform within a 22 schedule, maintain regular attendance, maintain appropriate behavior in a work setting, and 23

24 1 complete a normal work day or week without interruption from his psychologically based 2 symptoms. AR 513. 3 The ALJ gave Dr. Wingate’s opinions little weight. AR 32. The ALJ reasoned Dr. 4 Wingate’s opinions were “grossly inconsistent with the overall medical evidence of record.” Id.

5 An ALJ may only reject the opinions of an examining doctor when contradicted if the 6 ALJ provides “specific and legitimate reasons that are supported by substantial evidence in the 7 record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 8 F.3d at 1035, 1043 (9th Cir. 1995)). The ALJ can satisfy this requirement “by setting out a 9 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 10 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 11 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 12 The ALJ erred in rejecting Dr. Wingate’s opinions. The ALJ reasonably found Plaintiff 13 was asymptomatic prior to 2018, but unreasonably concluded Plaintiff’s symptoms were due to 14 transitory grief. See AR 24–25, 32, 448, 455. The ALJ reasonably noted Plaintiff had an acute

15 exacerbation of his symptoms following his partner’s sudden death. See AR 24–25, 32, 503, 521, 16 565. But the ALJ also stated there was “no evidence in the record to indicate that [Plaintiff’s] 17 symptoms will persist with appropriate treatment,” which was not accurate. AR 25. Plaintiff was 18 receiving treatment as of the latest medical records, and Dr. Wingate—who evaluated Plaintiff 19 several months after his partner’s death—found Plaintiff’s symptoms would persist for at least 20 12 months with treatment. See AR 513, 650. The ALJ’s determination was not supported by 21 substantial evidence, and thus he harmfully erred in rejecting Dr. Wingate’s opinions. 22 23

24 1 B. Whether the ALJ Reasonably Rejected Dr. Gibson’s Opinions 2 Plaintiff contends the ALJ failed to give specific and legitimate reasons for rejecting Dr. 3 Gibson’s opinions. See Dkt. 13, pp. 8–9. Dr. Gibson examined Plaintiff on November 14, 2016. 4 See AR 438–41. Dr. Gibson opined Plaintiff’s recent memory was “mildly impaired,” and

5 “limited in adaptive skills.” AR 440. 6 The ALJ gave Dr. Gibson’s opinions “partial weight.” AR 32. The ALJ reasoned Dr. 7 Gibson’s opinions were generally consistent with the overall medical record, but his opinion that 8 Plaintiff had limited adaptive skills was “not consistent with the claimant’s ability to complete 9 his activities of daily living and attend medical appointments.” Id. 10 The ALJ erred in rejecting Dr. Gibson’s opinion on Plaintiff’s adaptive skills. The 11 activities the ALJ referenced as inconsistent with this opinion related to Plaintiff’s social skills, 12 not his adaptive skills. The ALJ did not link the two, and therefore did not explain his reasoning. 13 See Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“[A]n ALJ errs when he rejects a 14 medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting

15 without explanation that another medical opinion is more persuasive, or criticizing it with 16 boilerplate language that fails to offer a substantive basis for his conclusion.”). The ALJ 17 harmfully erred in rejecting Dr. Gibson’s opinion on Plaintiff’s adaptive skills. 18 C. Whether the ALJ Reasonably Found No Severe Mental Impairments at Step Two 19 Plaintiff contends the ALJ erred in finding Plaintiff had no severe mental impairments. 20 See Dkt. 13, p. 10. The ALJ found Plaintiff had a medically determinable impairment of 21 posttraumatic stress disorder (“PTSD”), but found this impairment was non-severe. AR 24–25. 22 The Court withholds judgment on this issue because the ALJ erred in evaluating the opinions 23 from the two examining psychologists, Dr. Wingate and Dr. Gibson. See supra Part IV.A–B.

24 1 How the ALJ evaluates this evidence will impact the step two finding, so the Court does not need 2 to address this issue. The ALJ shall reevaluate the step two findings on remand. 3 D. Whether the ALJ Reasonably Discounted Plaintiff’s Symptom Testimony 4 Plaintiff contends the ALJ failed to give clear and convincing reasons for discounting

5 Plaintiff’s subjective symptom testimony. See Dkt. 13, pp. 10–12. Plaintiff testified he has pain 6 in his neck, back, right shoulder, left hip, and left knee. See AR 310. He testified he received a 7 cortisone injection in his right shoulder, but it was not effective. AR 60. Plaintiff testified he had 8 surgery on his left knee, which eliminated the sharp pain he was having, but the knee was “still 9 popping, and hurting, and stuff,” after the surgery. AR 62. Plaintiff testified he has significant 10 pain in his lower back and neck. See AR 63. Plaintiff testified he has PTSD. AR 64. 11 The Ninth Circuit has “established a two-step analysis for determining the extent to 12 which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 13 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has presented objective 14 medical evidence of an impairment that “‘could reasonably be expected to produce the pain or

15 other symptoms alleged.’” Id. (quoting Garrison, 759 F.3d at 1014–15). At this stage, the 16 claimant need only show that the impairment could reasonably have caused some degree of the 17 symptoms; he does not have to show that the impairment could reasonably be expected to cause 18 the severity of the symptoms alleged. Id. The ALJ found Plaintiff met this first step. See AR 27. 19 If the claimant satisfies the first step, and there is no evidence of malingering, the ALJ 20 may only reject the claimant’s testimony “‘by offering specific, clear and convincing reasons for 21 doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 (quoting Garrison, 22 759 F.3d at 1014-15). In evaluating the ALJ’s determination at this step, the Court may not 23 substitute its judgment for that of the ALJ. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). As

24 1 long as the ALJ’s decision is supported by substantial evidence, it should stand, even if some of 2 the ALJ’s reasons for discrediting a claimant’s testimony fail. See Tonapetyan v. Halter, 242 3 F.3d 1144, 1148 (9th Cir. 2001). 4 The ALJ rejected Plaintiff’s testimony regarding the severity of his impairments. See AR

5 27–31. The ALJ reasoned Plaintiff’s testimony was inconsistent with the treatment record and 6 Plaintiff’s actual functioning. See AR 27–30. The ALJ further reasoned Plaintiff’s testimony was 7 undermined by inconsistent statements he made, and because his partner supported him 8 financially, suggesting he was not working for reasons other than disability. AR 31. 9 The ALJ erred in rejecting Plaintiff’s symptom testimony as inconsistent with the 10 treatment record. See AR 30. First, an ALJ may not cherry-pick the record, pointing to a few 11 normal findings to support his opinion while ignoring the overall diagnostic picture. See Attmore 12 v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016). That is what the ALJ did here. The ALJ noted, for 13 example, a record stating Plaintiff’s “[c]hronic pain is stable,” but failed to note Plaintiff was 14 referred to physiatry for steroid injections at the same appointment. See AR 30, 425. The ALJ

15 noted in another record Plaintiff had satisfactory strength and muscle tone in his knee, but failed 16 to note Plaintiff was diagnosed with a complex tear of the medial meniscus and partial tear of the 17 gastrocnemius, both of which required surgery. See AR 30, 446, 449, 451–53. 18 Second, the ALJ mischaracterized Plaintiff’s treatment as conservative. Plaintiff had 19 surgery on his left knee. See AR 451–52. He took opioid medications including OxyContin and 20 Percocet to manage his pain. See AR 447, 454, 467, 472, 477. He received steroid injections in 21 his right shoulder and lower back. See AR 59–60, 466, 718. None of this is conservative 22 treatment. See Garrison, 759 F.3d at 1015 n.20 (“[W]e doubt that epidural steroid shots to the 23 neck and lower back qualify as ‘conservative’ medical treatment.”); Kager v. Astrue, 256 F.

24 1 App’x 919, 923 (9th Cir. 2007) (finding error where the ALJ discounted the plaintiff’s testimony 2 based on a lack of significant pain therapy, when the plaintiff had been prescribed opioid 3 medications). 4 The ALJ further erred in rejecting Plaintiff’s testimony as inconsistent with his actual

5 functioning. See AR 30. An ALJ may reject a plaintiff’s symptom testimony based on his daily 6 activities if they contradict his testimony or “meet the threshold for transferable work skills.” 7 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). However, “the 8 mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving 9 a car, or limited walking for exercise, does not in any way detract from [his] credibility as to 10 [his] overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” 11 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 F.2d at 603). That 12 Plaintiff shopped for groceries, cooked (mostly frozen food), and did some household chores 13 does not convincingly undermine his testimony. See AR 69–70, 79, 312–13. 14 The ALJ erred in rejecting Plaintiff’s testimony based on inconsistent statements, as well.

15 See AR 31. The ALJ pointed to two statements to justify his position: Plaintiff’s explanation as 16 to why he was tapering off opioid medications, and his statement that he sometimes needed to 17 use a cane. See id. But neither statement is so inconsistent with the record as to justify wholesale 18 rejection of Plaintiff’s testimony. As to opioid treatment, in a stilted exchange with the ALJ, 19 Plaintiff said he “probably shouldn’t” taper off his opioid medications, “but because of what 20 happened to me [his partner’s sudden death] I’d like to get my brain in order.” AR 59. As the 21 ALJ noted, Plaintiff’s doctor was taking him off opioid medications because he had an abnormal 22 urine screen, in violation of his pain contract. AR 505–06. The record otherwise showed 23 consistent compliance with Plaintiff’s pain contract. See, e.g., AR 458–65, 477–503. Plaintiff

24 1 was not as forthcoming about why he was discontinuing opioid medication as he should have 2 been, but he ALJ did not adequately explain how this undermined Plaintiff’s testimony regarding 3 the severity of his symptoms. 4 Similarly, Plaintiff’ statement about his use of a cane was not so inconsistent as to justify

5 rejecting all of his pain testimony. Plaintiff stated in an adult function report that he uses a cane 6 when his back, hip, and knee are all acting up. See AR 310. The ALJ found this an inconsistent 7 statement because “there is no evidence in the record to corroborate [Plaintiff’s] claim.” AR 31. 8 But an inconsistent statement is different than an unsupported statement, and the latter does not 9 justify rejecting the entirety of Plaintiff’s symptom testimony. 10 Finally, the ALJ erred in rejecting Plaintiff’s testimony based on the suggestion Plaintiff 11 was not working because his partner supported him financially. See AR 31. The record could 12 reasonably support a finding that Plaintiff’s partner supported him financially. See AR 415, 447, 13 521. But nothing in the record establishes Plaintiff was not working due to this financial support, 14 as opposed to not working because of the severity of his symptoms. The ALJ therefore erred in

15 rejecting Plaintiff’s testimony on this basis. 16 In sum, the ALJ failed to provide clear and convincing reasons for rejecting Plaintiff’s 17 testimony regarding the severity of his symptoms. The ALJ therefore harmfully erred. 18 E. Scope of Remand 19 Plaintiff cursorily asks the Court to remand this matter for an award of benefits. See Dkt. 20 13, p. 13. Remand for an award of benefits “is a rare and prophylactic exception to the well- 21 established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). 22 Because Plaintiff presents no substantive argument in support of his request, the Court finds it 23 has not been adequately argued. See Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir.

24 1 2009) (“Arguments made in passing and inadequately briefed are waived.”). The Court therefore 2 remands this matter for further administrative proceedings. 3 On remand, the ALJ shall reevaluate Dr. Wingate’s and Dr. Gibson’s opinions, reassess 4 Plaintiff’s severe impairments at step two, and reevaluate Plaintiff’s symptom testimony. The

5 ALJ shall reassess all other relevant steps of the disability evaluation, and conduct further 6 proceedings as necessary to reevaluate the disability determination in light of this opinion. 7 V. CONCLUSION 8 Based on the foregoing reasons, the Court finds that the ALJ improperly concluded 9 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 10 this matter is remanded for further administrative proceedings in accordance with the findings 11 contained herein. 12 Dated this 16th day of July, 2020. 13 A 14 David W. Christel United States Magistrate Judge 15 16

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