1 Sep 26, 2019 2 SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 DEBRA H., NO: 1:18-CV-03172-FVS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 ANDREW M. SAUL, DEFENDANT’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 11 SECURITY,1
12 Defendant.
13 14 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 15 ECF Nos. 12, 13. This matter was submitted for consideration without oral 16 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 17 1 Andrew M. Saul is now the Commissioner of the Social Security 18 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 19 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 20 25(d). 21 1 represented by Special Assistant United States Attorney Justin L. Martin. The 2 Court, having reviewed the administrative record and the parties’ briefing, is fully 3 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 4 granted and Defendant’s Motion, ECF No. 13, is denied.
5 JURISDICTION 6 Plaintiff Debra H.2 (Plaintiff) filed for disability insurance benefits (DIB) and 7 supplemental security income (SSI) on September 8, 2014, alleging an onset date of
8 March 31, 2011. Tr. 246-58. Benefits were denied initially, Tr. 137-45, and upon 9 reconsideration, Tr. 148-59. Plaintiff appeared at a hearing before an administrative 10 law judge (ALJ) on June 5, 2017. Tr. 38-80. On July 26, 2017, the ALJ issued an 11 unfavorable decision, Tr. 15-35, and on July 2, 2018, the Appeals Council denied
12 review. Tr. 1-6. The matter is now before this Court pursuant to 42 U.S.C. §§ 13 405(g); 1383(c)(3). 14 BACKGROUND
15 The facts of the case are set forth in the administrative hearing and transcripts, 16 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 17 therefore only summarized here. 18
2In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 1 Plaintiff was 41 years old at the time of the hearing. Tr. 69. She has a high 2 school diploma. Tr. 69. She has work experience as cherry packer, an office worker 3 for a prosthetics company, field supervisor, and child monitor. Tr. 65, 70-72. 4 Plaintiff hit her head on a vice at work in September 2010 and started having
5 headaches and vision problems. Tr. 58-59. She testified she cannot work because 6 she always has a headache. Tr. 56. Sometimes her vision wavers. Tr. 56. She 7 cannot work on computers and she cannot watch much television due to her vision.
8 If she tries to focus on computers or paperwork, her eyes go in and out of focus and 9 her headache is aggravated. Tr. 57-58. Plaintiff estimated she has seven bad 10 headaches a month, which means she loses vision in her right eye, vomits, and 11 cannot leave the house. Tr. 58, 62.
12 In April 2014, her husband at the time pointed a gun at her and threatened to 13 kill her. Tr. 354, 717. He went to prison for this crime. Tr. 354. As a result of this 14 incident, she has night terrors and panic attacks. Tr. 63. Sometimes she cannot
15 leave the house. Tr. 64. She has anxiety episodes every day. Tr. 64. If she was 16 working and had an anxiety attack or flashback, she would freeze, panic, and bolt. 17 Tr. 65-66. She has passed out due to an anxiety attack in the past. Tr. 65. She has 18 anxiety flareups at least a couple of times per week. Tr. 66.
19 STANDARD OF REVIEW 20 A district court’s review of a final decision of the Commissioner of Social 21 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 1 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 2 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 3 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 4 citation omitted). Stated differently, substantial evidence equates to “more than a
5 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 6 In determining whether the standard has been satisfied, a reviewing court must 7 consider the entire record as a whole rather than searching for supporting evidence in
8 isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its 10 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 11 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one
12 rational interpretation, [the court] must uphold the ALJ’s findings if they are 13 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 14 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s
15 decision on account of an error that is harmless.” Id. An error is harmless “where it 16 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 17 (quotation and citation omitted). The party appealing the ALJ’s decision generally 18 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S.
19 396, 409-10 (2009). 20 FIVE-STEP EVALUATION PROCESS 21 A claimant must satisfy two conditions to be considered “disabled” within the 1 any substantial gainful activity by reason of any medically determinable physical or 2 mental impairment which can be expected to result in death or which has lasted or 3 can be expected to last for a continuous period of not less than twelve months.” 42 4 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must
5 be “of such severity that he is not only unable to do his previous work[,] but cannot, 6 considering his age, education, and work experience, engage in any other kind of 7 substantial gainful work which exists in the national economy.” 42 U.S.C. §§
8 423(d)(2)(A), 1382c(a)(3)(B). 9 The Commissioner has established a five-step sequential analysis to determine 10 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 11 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s
12 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 13 engaged in “substantial gainful activity,” the Commissioner must find that the 14 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b).
15 If the claimant is not engaged in substantial gainful activity, the analysis 16 proceeds to step two. At this step, the Commissioner considers the severity of the 17 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 18 claimant suffers from “any impairment or combination of impairments which
19 significantly limits [his or her] physical or mental ability to do basic work 20 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 21 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 1 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 2 §§ 404.1520(c), 416.920(c). 3 At step three, the Commissioner compares the claimant’s impairment to 4 severe impairments recognized by the Commissioner to be so severe as to preclude a
5 person from engaging in substantial gainful activity. 20 C.F.R. §§ 6 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 7 than one of the enumerated impairments, the Commissioner must find the claimant
8 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 9 If the severity of the claimant’s impairment does not meet or exceed the 10 severity of the enumerated impairments, the Commissioner must pause to assess the 11 claimant’s “residual functional capacity.” Residual functional capacity (RFC),
12 defined generally as the claimant’s ability to perform physical and mental work 13 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 14 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the
15 analysis. 16 At step four, the Commissioner considers whether, in view of the claimant’s 17 RFC, the claimant is capable of performing work that he or she has performed in the 18 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the
19 claimant is capable of performing past relevant work, the Commissioner must find 20 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 21 claimant is incapable of performing such work, the analysis proceeds to step five. 1 At step five, the Commissioner should conclude whether, in view of the 2 claimant’s RFC, the claimant is capable of performing other work in the national 3 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 4 determination, the Commissioner must also consider vocational factors such as the
5 claimant’s age, education and past work experience. 20 C.F.R. §§ 6 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 7 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§
8 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 9 work, analysis concludes with a finding that the claimant is disabled and is therefore 10 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 11 The claimant bears the burden of proof at steps one through four above.
12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 13 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 14 capable of performing other work; and (2) such work “exists in significant numbers
15 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 16 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 17 ALJ’S FINDINGS 18 At step one, the ALJ found Plaintiff did not engage in substantial gainful
19 activity since March 31, 2011, the alleged onset date. Tr. 17. At step two, the ALJ 20 found that Plaintiff has the following severe impairments: lumbar spine disorder 21 (spondylosis, mild levo-convex scoliosis, and degenerative disc disease with left foot 1 tachycardia; post herpetic neuralgia; history of multiple rib fractures; mild 2 neurocognitive disorder due to a traumatic brain injury; affective disorder (major 3 depression); anxiety related disorders (anxiety disorder and posttraumatic stress 4 disorder (PTSD)); and somatic disorder (pain disorder). Tr. 17. At step three, the
5 ALJ found that Plaintiff does not have an impairment or combination of impairments 6 that meets or medically equals the severity of a listed impairment. Tr. 18. 7 The ALJ then found that Plaintiff has the residual functional capacity to
8 perform light work with the following additional limitations: 9 She is able to stand and/or walk for 4 hours in an 8-hour workday; she is unable to operate foot controls; she is able to occasionally balance, 10 stoop, kneel, and crouch; she cannot climb or crawl; she must avoid concentrated exposure to extreme cold, wetness, and pulmonary 11 irritants; she must avoid vibration and hazards (including unprotected heights); she is able to perform simple, routine tasks and follow short, 12 simple instructions; she is able to do work that needs little or no judgment; she is able to perform simple duties that can be learned on 13 the job in a short period[]; she requires a work environment that is predictable and with few work setting changes; and she is unable to 14 deal with the general public (as in a sales position or another position where the general public is frequently encountered as an essential 15 element of the work process), although incidental contact of a superficial nature with the general public is not precluded. 16 Tr. 19-20. 17 At step four, the ALJ found that Plaintiff is unable to perform past relevant 18 work. Tr. 27. At step five, after considering the testimony of a vocational expert 19 and Plaintiff’s age, education, work experience, and residual functional capacity, the 20 ALJ found there are other jobs that exist in significant numbers in the national 21 1 hand packager, or electronic accessory assembler. Tr. 28. Thus, the ALJ concluded 2 that Plaintiff has not been under a disability, as defined in the Social Security Act, 3 from March 31, 2011, through the date of the decision. Tr. 29. 4 ISSUES
5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 disability income benefits under Title II and supplemental security income under 7 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following
8 issues for review: 9 1. Whether the ALJ properly considered the medical opinion evidence; 10 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 11 3. Whether the ALJ had a duty to develop the record; and
12 4. Whether the ALJ erred at step five. 13 ECF No. 12 at 2. 14 DISCUSSION
15 A. Medical Opinion Evidence 16 Plaintiff contends the ALJ failed to properly consider the opinions of treating 17 neurologist, Peter C. Gilmore, M.D.; examining psychologist Roland Dougherty, 18 Ph.D.; medical expert Peter Schosheim, M.D.; reviewing psychologist Diane
19 Fligstein, Ph.D.; and treating provider Shannon Neer, PA-C. ECF No. 12 at 6-15. 20 There are three types of physicians: “(1) those who treat the claimant (treating 21 physicians); (2) those who examine but do not treat the claimant (examining 1 review the claimant’s file (nonexamining or reviewing physicians).” Holohan v. 2 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, 3 a treating physician’s opinion carries more weight than an examining physician’s, 4 and an examining physician’s opinion carries more weight than a reviewing
5 physician’s.” Id. “In addition, the regulations give more weight to opinions that are 6 explained than to those that are not, and to the opinions of specialists concerning 7 matters relating to their specialty over that of nonspecialists.” Id. (citations omitted).
8 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 9 reject it only by offering “clear and convincing reasons that are supported by 10 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 11 “However, the ALJ need not accept the opinion of any physician, including a
12 treating physician, if that opinion is brief, conclusory and inadequately supported by 13 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 14 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s
15 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 16 providing specific and legitimate reasons that are supported by substantial 17 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 18 (9th Cir. 1995)).
19 The opinion of an acceptable medical source, such as a physician or 20 psychologist, is given more weight than that of an “other source.” 20 C.F.R. §§ 21 404.1527, 416.927; Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). “Other 1 workers, spouses and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 2 416.913(d) (2013).3 The ALJ is required to consider evidence from “other sources,” 3 but may discount testimony from these sources if the ALJ “gives reasons germane to 4 each witness for doing so.” Molina, 674 F.3d at 1104.
5 In July 2014, Dr. Gilmore, a treating neurologist, wrote a letter indicating 6 Plaintiff has a diagnosis of post-concussion syndrome with continuing headaches, 7 difficulties with vision, and poor cognition. Tr. 642. He opined that “due to these
8 problems, she is unable to work and because of poor cognition she would be 9 unreliable.” Tr. 642. He indicated that her vision caused difficulty reading and 10 headaches are a factor in her inability to concentrate. Tr. 642. He also wrote that he 11 had previously dictated his opinion in April 2014. Tr. 642. The ALJ gave no weight
12 to Dr. Gilmore’s opinion. Tr. 25. 13 First, the ALJ noted a conclusion regarding the capacity to work is a legal 14 determination reserved for the Commissioner. Tr. 25. The ALJ is responsible for
15 16 3 Effective March 27, 2017, the definition of an “acceptable medical source” 17 changed to include some sources previously considered to be “other” sources. See 18 20 C.F.R. §§ 404.1520, 416.920 (2017). However, for licensed audiologists, 19 licensed advanced practice registered nurses, and licensed physician assistants, the 20 change applies “only with respect to claims filed . . . on or after March 27, 2017.” 21 20 C.F.R. §§ 404.1502(a)(6)-(8), 416.902(a)(6)-(8) (2017). 1 determining whether a claimant meets the statutory definition of disability, not a 2 physician. Social Security Ruling (S.S.R.) 96-5p, at *5 (July 2, 1996), available at 3 1996 WL 374183. A medical source that a claimant is “disabled” or “unable to 4 work” does not require the ALJ to determine the claimant meets the definition of
5 disability. 20 CFR §§ 404.1527(d)(1); 416.927(d)(1). It was reasonable for the ALJ 6 to reject this portion of Dr. Gilmore’s opinion on this basis. 7 Second, the ALJ found the record does not contain any exam records from Dr.
8 Gilmore during the relevant period. Tr. 25. A medical opinion may be rejected if it 9 is unsupported by medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r of 10 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 11 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
12 2001); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). The ALJ noted that 13 Dr. Gilmore’s office indicated that it had no records after 2010. Tr. 25 (citing Tr. 14 700). Thus, the ALJ concluded Dr. Gilmore had no basis upon which to determine
15 that Plaintiff was unable to work during the relevant period.4 Tr. 25. 16 However, the ALJ erroneously referenced a note from Neurological 17 Associates of Yakima, which is not affiliated with Dr. Gilmore. Tr. 642, 700. A 18 records request from the Social Security Administration to Dr. Gilmore’s clinic,
4 Dr. Gilmore previously evaluated Plaintiff in January 2007 for her work-related 20 back injury and L&I claim. Tr. 25, 420-22. The evaluation did not address the 21 1 Northwest Neurosciences, asked for records dated July 17, 2014, the day after Dr. 2 Gilmore’s opinion. Tr. 1047. Northwest Neurosciences responded that there were 3 no records after July 17, 2014 and indicated, “[p]atient last seen 3/25/14.” This 4 reasonably suggests that, contrary to the ALJ’s finding, Dr. Gilmore did see Plaintiff
5 shortly before rendering his opinion. This is confirmed by other references to Dr. 6 Gilmore in the record during the relevant period. See Tr. 646 (noting Plaintiff was 7 followed by Dr. Gilmore for headaches, last seen April 2014), 750 (records review
8 indicated Dr. Gilmore made a referral in April 2013 for migraine treatment). The 9 ALJ’s finding that Dr. Gilmore did not examine Plaintiff during the relevant period 10 is therefore based on error. 11 The error impacts the ALJ’s other reasons for rejecting Dr. Gilmore’s opinion.
12 Second, the ALJ found Dr. Gilmore’s opinion that Plaintiff cannot concentrate is 13 inconsistent with the record because although Roland Dougherty, Ph.D., an 14 examining psychologist, found some memory and concentration issues in February
15 2015, he did not conclude Plaintiff cannot concentrate. Tr. 25. This is inconsistent 16 with the ALJ’s determination that Dr. Dougherty’s findings should be rejected 17 because they touch on medical issues rather than psychological issues. Tr. 26. 18 Furthermore, the ALJ’s finding is suspect because the record does not contain any
19 findings regarding Plaintiff’s concentration and neurocognitive disorder from a 20 medical perspective (rather than a psychological perspective) which were credited 21 by the ALJ. However, as discussed supra, Dr. Gilmore’s office visit notes for the 1 to determine whether Dr. Gilmore’s opinion regarding Plaintiff’s concentration is 2 supported by his findings. 3 Third, the ALJ found records pertaining to Plaintiff’s vision do not establish 4 that Plaintiff cannot read. Tr. 25. Dr. Gilmore did not indicate that Plaintiff cannot
5 read; he opined that she had difficulty reading due to her vision. Tr. 642. This is 6 consistent with Dr. Dougherty’s observation that Plaintiff had “significant visual 7 perceptual difficulties,” was not able to adequately distinguish the numbers and
8 letters during testing, and was no longer able to read due to her visual problems. Tr. 9 720. Again, it would be reasonable to expect that Dr. Gilmore’s treatment notes 10 may contain findings (or an absence of findings) supporting his conclusions 11 regarding Plaintiff’s vision which must be considered in evaluating his opinion.
12 Fourth, the ALJ concluded that the opinion that Plaintiff is unreliable is based 13 on unsupported speculation. Tr. 25. This finding is also impacted by the ALJ’s 14 error since it is unclear whether Dr. Gilmore’s conclusion is supported without
15 reviewing his treatment notes for the relevant period. 16 Dr. Gilmore’s opinion and the ALJ’s error are especially significant because 17 there are no other neurological opinions in the record and the ALJ rejected other 18 opinion evidence related to Plaintiff’s neurocognitive disorder and headaches. The
19 medical expert, Peter Schosheim, M.D., an orthopedic surgeon, described himself as 20 having expertise in musculoskeletal disease involving the back and joints. Tr. 43- 21 44. He testified only about Plaintiff’s back and neck issues and gave no opinion 1 about areas outside of his expertise such as Plaintiff’s traumatic brain injury or 2 headaches.5 Tr. 48. 3 The reviewing physician, Olegario Ignacio, Jr., M.D., noted, “HA [headache] 4 and possible migraine variant (to explain the vision issues) were discussed with
5 appropriate drug therapy noted.” Tr. 114. The ALJ gave partial weight to Dr. 6 Ignacio’s opinion and indicated that, “[t]o the extent that Dr. Schosheim’s and Dr. 7 Ignacio’s opinions differ, I defer to Dr. Schosheim’s assessment because he
8 reviewed the entire record.” Tr. 25. Despite the fact that Dr. Schosheim reviewed 9 the entire record, he only testified regarding impairments related to his specialty. 10 Thus, the ALJ essentially gave no weight to Dr. Ignacio’s comment about Plaintiff’s 11 headaches, and neither Dr. Schosheim’s nor Dr. Ignacio’s opinion speaks to
12 Plaintiff’s neurocognitive disorder. 13 Dr. Ignacio cited Dr. Dougherty’s February 2015 report which noted Plaintiff 14 had “significant visual perceptual difficulties” and was not able to adequately
15 distinguish the numbers and letters on the Trail Making test. Tr. 720. He noted, 16 “[h]er responses to the mental status examination suggested some memory and 17 concentration problems, probably due to the traumatic brain injury. . . . she is no 18
19 5 In fact, the ALJ did not allow Dr. Schosheim to be questioned about Plaintiff’s 20 traumatic brain injury or any other condition outside of Dr. Schosheim’s expertise. 21 Tr. 48. 1 longer able to read because of her visual problems.” Tr. 722. Dr. Dougherty found 2 that Plaintiff has the ability to do at least some detailed and complex tasks, but 3 “[c]ognitive difficulties as noted above may interfere with her ability to perform 4 certain [tasks] and she has significant visual problems.” Tr. 722. The ALJ gave
5 little weight to Dr. Dougherty’s findings and assessment of limitations in part 6 because Dr. Dougherty is not a medical doctor and is not qualified to assess the 7 medical aspects of Plaintiff’s condition. Tr. 26 (citing Brosnahan v. Barnhart, 336
8 F.3d 671, 676 (8th Cir. 2003). Thus, Dr. Dougherty’s comments do not sufficiently 9 address Plaintiff’s neurocognitive disorder and headaches. 10 Lastly, the ALJ gave slight weight to the opinions of Shannon Neer, PA-C, 11 who treated Plaintiff regularly and gave several opinions that Plaintiff is unable to
12 work due to her traumatic brain injury. Tr. 25-26, 729-31, 763-64, 817-19, 831-32, 13 844-46. Once the ALJ rejected all of the findings and opinions related to Plaintiff’s 14 neurocognitive disorder, there is no credited evidence constituting substantial
15 evidence supporting any of the ALJ’s findings related to Plaintiff’s headaches, 16 vision problems, and neurocognitive disorder. Thus, the matter must be remanded to 17 obtain Dr. Gilmore’s records from the alleged onset date through the date of his 18 opinion and, if necessary, further develop the medical record.
19 Additionally, Dr. Fligstein reviewed the record and completed a mental 20 residual functional capacity assessment in February 2015. Tr. 115-16, 129-30. She 21 assessed moderate limitations in the ability to maintain attention and concentration 1 maintain regular attendance, and be punctual within customary tolerances. Tr. 115. 2 Dr. Fligstein opined Plaintiff is able to understand and remember simple and some 3 detailed work tasks and is able to maintain concentration for the performance of full- 4 time gainful employment, but “may encounter difficulty in maintaining her work
5 schedule due to depressive symptoms.” Tr. 115-16. 6 The ALJ gave partial weight to Dr. Fligstein’s opinion. Tr. 26. The ALJ 7 found Plaintiff’s residual functional capacity is more restrictive than Dr. Fligstein’s
8 opinion and added limitations regarding interaction with the public due to Plaintiff’s 9 PTSD. Tr. 26. However, the ALJ did not include a limitation regarding Plaintiff’s 10 ability to maintain a work schedule and did not otherwise address Dr. Fligstein’s 11 finding that Plaintiff may have difficulty maintaining a work schedule due to
12 depressive symptoms. The ALJ need not discuss all evidence presented but must 13 explain why significant probative evidence has been rejected. Vincent v. Heckler, 14 739 F.2d 1393, 1394-95 (9th Cir. 1984). On remand, the ALJ should readdress Dr.
15 Fligstein’s opinion and ensure all limitations supported by substantial evidence are 16 included in the RFC finding. 17 B. Symptom Claims 18 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF
19 No. 11 at 14-17. An ALJ engages in a two-step analysis to determine whether a 20 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 21 ALJ must determine whether there is objective medical evidence of an underlying 1 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 2 “The claimant is not required to show that her impairment could reasonably be 3 expected to cause the severity of the symptom she has alleged; she need only show 4 that it could reasonably have caused some degree of the symptom.” Vasquez v.
5 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 6 Second, “[i]f the claimant meets the first test and there is no evidence of 7 malingering, the ALJ can only reject the claimant’s testimony about the severity of
8 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 9 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 10 citations and quotations omitted). “General findings are insufficient; rather, the 11 ALJ must identify what testimony is not credible and what evidence undermines
12 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see also Thomas, 13 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with findings 14 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily
15 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard 16 is the most demanding required in Social Security cases.” Garrison v. Colvin, 759 17 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 18 F.3d 920, 924 (9th Cir. 2002)).
19 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 20 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 21 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 1 physicians or third parties concerning the nature, severity, and effect of the 2 claimant’s condition. Thomas, 278 F.3d at 958-59. 3 With respect to Plaintiff’s mental impairments, the ALJ first found 4 Plaintiff’s mental health symptoms are related to a specific event and lessened over
5 time. Tr. 21. If a claimant suffers from limitations that result from situational 6 stressors rather than a medical impairment, an ALJ may properly consider this fact 7 in discounting Plaintiff’s symptom claims. See Tidwell v. Apfel, 161 F.3d 599, 602
8 (9th Cir. 1998) (finding ALJ properly rejected claimant’s testimony in part based 9 on claimant’s motivation due to her stressful living situation); Chesler v. Colvin, 10 649 F. App’x 631, 632 (9th Cir. 2016) (concluding symptom testimony was 11 properly rejected in part because “the record support[ed] the ALJ’s conclusion that
12 [plaintiff’s] mental health symptoms were situational”). 13 The ALJ found Plaintiff’s anxiety-related symptoms of fear, panic attacks, 14 nightmares, and isolation were related to her history of physical and mental abuse
15 and ongoing concerns related to her ex-husband.6 Tr. 21. While Plaintiff has 16 legitimate concerns about her ex-husband, the ALJ observed that she does not 17 appear to view herself as someone who has problems interacting with others or 18 with authority. Tr. 21, 303-04. The ALJ also noted that despite her anxiety, she
19 20 6 Plaintiff’s ex-husband was sentenced to 15 months in prison for threatening to kill 21 Plaintiff and her children. Tr. 21, 354. 1 had a new boyfriend; she traveled to Oregon; she planned to attend nursing school; 2 she goes to the gym several times per week; and she attends appointments on her 3 own. Tr. 21-22, 54, 877, 991, 974, 1030, 1033. Accordingly, the ALJ found that 4 she is able to engage with others, adapt to different environments, and venture out
5 in public despite her anxiety related to her ex-husband. Tr. 22. This is a 6 reasonable interpretation of the evidence and this is a clear and convincing reason 7 for giving less weight to Plaintiff’s mental health complaints.
8 Second, the ALJ found Plaintiff’s mental health issues improved with 9 medication. An impairment effectively controlled with medication is not 10 disabling. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 11 2006). The ALJ noted that in July and September 2016, Plaintiff reported her
12 medication regimen had been “working really well.” Tr. 22, 987, 996. In January 13 2016 and May 2017, Plaintiff reported her mental health was stable and she had no 14 concerns about depressive symptoms, PTSD, or medications. Tr. 22, 974, 1021.
15 She stopped attending therapy and was discharged for lack of follow up. Tr. 22, 16 976, 980. Her treating pharmacist indicated “her biggest issue is her uncontrolled 17 pain” rather than any mental health symptoms. Tr. 22, 1021. This finding is 18 supported by substantial evidence and constitutes a clear and convincing reason for
19 giving less weight to Plaintiff’s mental health claims. 20 With respect to Plaintiff’s allegations of physical impairments, first the ALJ 21 found the objective longitudinal record and the objective evidence does not support 1 not be rejected solely because it is not corroborated by objective medical findings, 2 the medical evidence is a relevant factor in determining the severity of a claimant’s 3 pain and its disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 4 2001). The ALJ observed the imaging and exams do not support the existence of a
5 right foot disorder or any problems with her hands. Tr 22-23, 905, 965. Imaging 6 shows some arthritic changes in her lumbar spine facet joints and mild scoliosis, 7 but in September 2016 there were no findings on exam, and the medical expert, Dr.
8 Schosheim, found Plaintiff has limitations due to her back impairment which are 9 included in the RFC. Tr. 23-25, 46, 907, 930. The ALJ noted that Plaintiff does 10 not appear to allege any significant limitations due to her back impairment, 11 obesity, rib fractures, past heart condition, and neuralgia since her testimony
12 focused on her headaches and related concerns. Tr. 22. The ALJ’s finding is 13 supported by substantial evidence with regard to the specified impairments. 14 The ALJ also found the record lacks objective evidence regarding Plaintiff’s
15 allegations of severe headaches. Tr. 23. The ALJ observed the record contains no 16 diagnostic tests or studies such as a brain MRI or a head CT, and that a vision 17 exam resulted only in a prescription for corrective lenses. Tr. 23, 765-66. 18 However, the ALJ also found, “[s]he never saw a neurologist or other specialist for
19 her severe headaches during the relevant period at issue in this case.” Tr. 23. As 20 discussed supra, this finding is based on error. Dr. Gilmore indicated that 21 Plaintiff’s poor cognition, difficulties with vision, and headaches cause an inability 1 during the relevant period, this is not a legally sufficient reason for rejecting her 2 symptoms claims regarding Plaintiff’s headaches, vision issues, or neurocognitive 3 disorder. 4 Second, the ALJ found Plaintiff’s activities are inconsistent with the level of
5 physical impairment alleged. Tr. 23. As noted supra, this can be a clear and 6 convincing reason for giving less weight to a claimant’s symptom allegations. See 7 Molina, 674 F.3d at 1113. The ALJ noted that Plaintiff reported her pain
8 medication worked well and allowed her to do activities like laundry. Tr. 23, 9 1030. She was able to work out at the gym several times per week and ride an 10 ATV. 792, 947. None of these activities necessarily conflicts with Plaintiff’s 11 allegations regarding her cognitive disorder, and to the extent they do, they do not
12 by themselves constitute a clear and convincing reason supported by substantial 13 evidence. One weak reason is insufficient to meet the “specific, clear and 14 convincing” standard. Burrell v. Colvin, 775 F.3d 1133, 1139-40 (9th Cir. 2014)
15 Molina, 674 F.3d at 1112; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 16 (9th Cir.2007). Thus, the ALJ’s assessment of Plaintiff’s symptom complaints 17 regarding her cognitive disorder, headaches, and vision issues is flawed and must 18 be reconsidered on remand.
19 C. Duty to Develop the Record 20 Plaintiff contends the ALJ erred by failing to develop the record regarding Dr. 21 Gilmore’s treatment record. ECF No. 12 at 4-6. In Social Security cases, the ALJ 1 claimant’s interests are considered, even when the claimant is represented by 2 counsel. Tonapetyan, 242 F.3d at 1150; Brown v. Heckler, 713 F.2d 441, 443 (9th 3 Cir.1983). The regulations provide that the ALJ may attempt to obtain additional 4 evidence to resolve any inconsistency in the evidence, when the evidence is
5 insufficient to make a disability determination, or if after weighing the evidence the 6 ALJ cannot make a disability determination. 20 C.F.R. §§ 404.1517, 404.1519a, 7 404.1520b(2), 416.917, 416.919a, 416.920b(2). Ambiguous evidence, or the ALJ’s
8 own finding that the record is inadequate to allow for proper evaluation of the 9 evidence, triggers the ALJ’s duty to “conduct an appropriate inquiry.” Smolen v. 10 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). For the reasons discussed supra, this 11 matter is remanded so the ALJ can obtain and review Dr. Gilmore’s treatment
12 records. 13 D. Step Five 14 Plaintiff contends the ALJ erred at step five by failing to include vision
15 limitations in the hypothetical to the vocational expert. ECF No. 12 at 16-17. The 16 ALJ’s hypothetical must be based on medical assumptions supported by substantial 17 evidence in the record which reflect all of a claimant’s limitations. Osenbrook v. 18 Apfel, 240 F.3D 1157, 1165 (9th Cir. 2001). The hypothetical should be “accurate,
19 detailed, and supported by the medical record.” Tackett, 180 F.3d at 1101. The 20 ALJ is not bound to accept as trued the restrictions presented in a hypothetical 21 question propounded by a claimant’s counsel. Osenbrook, 240 F.3d at 1164; 1 807 F.2d 771, 773 (9th Cir. 1986). The ALJ is free to accept or reject these 2 restrictions as long as they are supported by substantial evidence, even when there 3 is conflicting medical evidence. Magallanes, 881 F.2d at id. 4 Plaintiff’s argument assumes the ALJ erred by finding no vision limitations.
5 ECF No. 12 at 16-17. While the ALJ’s findings regarding Plaintiff’s neurocognitive 6 disorder, headaches, and vision issues are not supported by substantial evidence, the 7 Court does not conclude that any particular limitations regarding Plaintiff’s vision,
8 headaches, or cognitive disorder should have been included in the RFC. The ALJ 9 erred in determining that Dr. Gilmore’s opinion is not supported by treatment notes, 10 which undermines all other relevant findings. Since the matter is remanded for 11 development of the record and reconsideration of the opinion evidence, the ALJ
12 must also revisit the sequential evaluation and ensure all limitations supported by 13 substantial evidence are included in the RFC and hypothetical to the vocational 14 expert.
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 Accordingly, on remand, the ALJ shall obtain and review Dr. Gilmore’s treatment
19 record for the relevant period and reconsider his opinion. The ALJ shall ensure 20 substantial evidence supports any findings regarding Plaintiff’s cognitive disorder, 21 headaches, and vision issues, which may involve further development of the record 1 determines is appropriate. The ALJ also shall reconsider all other medical opinion 2 evidence and Plaintiff’s symptom complaints and conduct a new sequential evaluation 3 in light of the findings contained in the newly developed record. 4 Accordingly,
5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is DENIED. 7 3. This case is REVERSED and REMANDED for further administrative
8 proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 9 405(g). 10 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order 11 and provide copies to counsel. Judgment shall be entered for Plaintiff and the file
12 shall be CLOSED. 13 DATED September 26, 2019.
14 s/ Rosanna Malouf Peterson 15 ROSANNA MALOUF PETERSON United States District Judge 16 17 18 19 20 21