1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 Apr 15, 2025
3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5
6 SARAH H.,1 No. 1:24-cv-3138-EFS 7 Plaintiff, 8 ORDER REVERSING THE v. ALJ’S DENIAL OF BENEFITS, 9 AND REMANDING FOR 10 LELAND DUDEK, Acting MORE PROCEEDINGS Commissioner of Social Security,2 11 Defendant. 12
13 14 15
16 1 For privacy reasons, Plaintiff is referred to by first name and last 17 initial or as “Plaintiff.” See LCivR 5.2(c). 18 2 Leland Dudek recently became Acting Commissioner of Social 19 20 Security. Pursuant to Federal Rule of Civil Procedure 25(d) and section 21 205(g) of the Social Security Act, 42 U.S.C. § 405(g), he is hereby 22 substituted as Defendant. 23 1 Plaintiff Sarah H. asks the Court to reverse the Administrative 2 Law Judge’s (ALJ) denial of Title 2 and Title 16 benefits. Plaintiff 3 claims she is unable to work due to degenerative disc disease, 4 depressive disorder, anxiety disorder, post-traumatic stress disorder 5 (PTSD), attention-deficit hyperactivity disorder (ADHD), and 6 diverticulitis. Because the ALJ’s evaluation of the medical opinions 7 8 pertaining to Plaintiff’s degenerative disease is not supported by 9 substantial evidence, the ALJ erred. This matter is remanded for 10 further proceedings. 11 I. Background 12 Claiming an inability to work due in part to lumbar 13 radiculopathy, panic attacks, depression, PTSD, and diverticulitis, 14 15 Plaintiff applied for benefits under Titles 2 and 16, with an alleged 16 onset date of January 14, 2021.3 17 After the agency denied benefits at the initial and reconsideration 18 stages,4 ALJ Laura Valente held a telephone hearing in July 2023, at 19 20 21 3 AR 298-299, 300-306. 22 4 AR 147-151, 152-156, 159-163, 164-166. 23 1 which Plaintiff and a vocational expert testified.5 Plaintiff testified that 2 she last worked at FedEx in Florida as a package handler but could not 3 make it through a four-hour shift, even with the use of an ankle brace, 4 knee brace, and back brace.6 She had previously worked at a call center 5 and could not do that because she could not interact with others.7 She 6 said she started the job on January 14, 2021, and had resigned by the 7 8 end of January because if she worked for 1 day she would not be able to 9 work for the next 2 or 3 days due to pain.8 She said she had to call out 10 frequently and her supervisors were upset with her.9 Prior to that job, 11 she had worked for 3 months as a call center representative in a mail 12 order pharmacy.10 Prior to the call center, she worked for a school 13 district for about 5 years as a reading teacher and left that job because 14 15
16 5 AR 56-90. 17 6 AR 61-62. 18 7 AR 62. 19 20 8 Id. 21 9 AR 63. 22 10 Id. 23 1 she had panic attacks after a trauma in 2017 and had frequent 2 absences.11 She also had worked in a bookstore as a seasonal helper, in 3 a video game store, and as a sales associate at Costco.12 4 Plaintiff testified that she left FedEx because of both physical and 5 mental impairments and was taking medication when working there.13 6 She said the fact that she was so physically limited gave her panic 7 8 attacks.14 Plaintiff said she was on Meloxicam for her arthritis and 9 sertraline for her depression and anxiety as well as an antiviral.15 She 10 said that she moved and her new primary care provider changed her 11 medications and her anxiety and depression have improved but she 12 still cannot handle being in crowds.16 She said that in her FedEx job 13 she could not take breaks and that her spine specialist had advised her 14 15
16 11 AR 63-64. 17 12 AR 64-65. 18 13 AR 65. 19 20 14 Id. 21 15 AR 65-66. 22 16 AR 66. 23 1 to shift position every 15 to 20 minutes to relax her back and avoid 2 pain.17 She said the pain was in her lower back and neck because there 3 were herniated discs in those areas. 4 Plaintiff said her spine specialist wanted to do an MRI because 5 she suspected fibromyalgia in addition to the spinal injuries.18 She said 6 that she had to go to physical therapy before an MRI could be 7 8 authorized by insurance and that with her hernia she did not know if 9 she could complete physical therapy.19 Plaintiff said that her doctor 10 told her he would fix the hernia when he reversed her ostomy.20 11 Plaintiff said that in February 2023 she had extreme pain and went to 12 the ER, where it was determined that she had an acute diverticulitis 13 flare that caused infection and had caused an abscessed hole in her 14 15 colon.21 She said they did a full ostomy surgery and removed her 16
17 17 AR 67. 18 18 Id. 19 20 19 AR 68. 21 20 Id. 22 21 Id. 23 1 appendix.22 Plaintiff said that doctors told her there was a chance the 2 ostomy might by permanent but she had an appointment the next 3 month to find out if it could be.23 4 Plaintiff testified that her PTSD, major depressive disorder, and 5 anxiety will aggravate each other and causes flares.24 She said she has 6 a flare-up of her PTSD at least once a month.25 She said that 7 8 sometimes the flare-ups last only 2 to 3 days but other times they can 9 last for weeks.26 She said that in the 2 weeks she was working at 10 FedEx she called out on 3 days due to either the PTSD or her pain.27 11 Plaintiff said she lived with her mother and her 2 children and that her 12 family helps her with her children.28 Plaintiff said that her mother is 13 14
15 22 AR 68-69. 16 23 AR 68-69. 17 24 AR 69. 18 25 Id. 19 20 26 AR 70. 21 27 Id. 22 28 AR 70-71. 23 1 retired and that she herself is only able to do minimal housework 2 because bending is very painful.29 She said she had not enrolled in any 3 vocational training.30 4 Plaintiff testified that in March 2017 her then-husband tried to 5 kill her and that since then she will frequently get into fights if she 6 feels threatened.31 She said that when she worked for the online 7 8 pharmacy she would call out 3 times in a month.32 She said that when 9 she worked at FedEx she would go to the bathroom frequently to collect 10 herself and calm down.33 She said that when she is anxious she gets 11 forgetful.34 She said she has to shop online because she will forget 12 13 14 15
16 29 AR 71. 17 30 Id. 18 31 AR 72-73. 19 20 32 AR 74. 21 33 AR 75. 22 34 Id. 23 1 things if she goes to the store.35 Plaintiff said she can sit, stand, or 2 walk for about 20 minutes without pain due to arthritis.36 3 Plaintiff said she takes Meloxicam, Klonopin, Lamictal, 4 Trintellix, Mobic, and Zoloft.37 She said the mental health medications 5 make her feel better but not functional.38 Plaintiff said that she has to 6 change her ostomy bag and that how long it lasts before leaking 7 8 varies.39 She said she has to use a cream because the area gets 9 infected.40 She said that she is paranoid because the bag smells at 10 times even when it is not leaking.41 11 12 13 14
15 35 AR 75-76. 16 36 AR 77. 17 37 AR 78-79. 18 38 AR 79. 19 20 39 AR 80. 21 40 Id. 22 41 Id. 23 1 The ALJ issued a decision denying benefits.42 The ALJ found 2 Plaintiff’s alleged symptoms unsupported by the medical evidence and 3 her activities.43 As to the medical opinions, the ALJ found: 4 • The reviewing opinion of Lewis Weaver, MD, and Howard 5 Platter, MD, persuasive. 6 • The reviewing opinions of Leslie Postovoit, PhD, and Steven 7 8 Haney, PhD, to be somewhat persuasive. 9 • The examining opinions of Joel Mitchell, PhD, and 10 Marquetta Washington, ARNP, to be not persuasive.44 11 As to the sequential disability analysis, the ALJ found: 12 • Step one: Plaintiff meets the insured status requirements of 13 14 the Social Security Act through December 31, 2025. 15 • Step one: Plaintiff has not engaged in substantial gainful 16 activity since January 14, 2021, the alleged onset date. 17
18 42 AR 33-55. Per 20 C.F.R. §§ 404.1520(a)–(g), 416.920(a)–(g), a five- 19 20 step evaluation determines whether a claimant is disabled. 21 43 AR 41-45. 22 44 AR 45–47. 23 1 • Step two: Plaintiff had the following medically determinable 2 severe impairments: degenerative disc disease, depressive 3 disorder, and anxiety disorder. 4 • Step three: Plaintiff does not have an impairment or 5 combination of impairments that met or medically equaled 6 the severity of one of the listed impairments. 7 8 • RFC: Plaintiff has the RFC to perform less than the full 9 range of light work in that she can sit, stand, and walk for 10 six hours each; she can never climb ladders, ropes, or 11 scaffolds; she can frequently crawl, crouch, kneel, stoop, 12 balance, and climb ramps and stairs; she must avoid even 13 moderate exposure to hazards such as unprotected heights; 14 15 and she will need one additional break of ten minutes per 16 workday. 17 • Step four: Plaintiff was capable of performing past relevant 18 work as a customer service representative, tutor, and 19 schoolteacher. 20 21 22 23 1 • Step five: in the alternative, Plaintiff is capable of 2 performing work as an office helper and housekeeper.45 3 Plaintiff timely requested review of the ALJ’s decision by the 4 Appeals Council.46 Plaintiff timely requested that this Court review the 5 denial of disability. 6 II. Standard of Review 7 8 The ALJ’s decision is reversed “only if it is not supported by 9 substantial evidence or is based on legal error” and such error 10 impacted the nondisability determination.47 Substantial evidence is 11 “more than a mere scintilla but less than a preponderance; it is such 12 13 14 45 AR 38–48. 15 46 AR 295, 1–6. 16 47 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. § 17 405(g); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ), 18 superseded on other grounds by 20 C.F.R. § 416.920(a) (recognizing that 19 20 the court may not reverse an ALJ decision due to a harmless error— 21 one that “is inconsequential to the ultimate nondisability 22 determination”). 23 1 relevant evidence as a reasonable mind might accept as adequate to 2 support a conclusion.”48 3 III. Analysis 4 Plaintiff argues the ALJ erred when evaluating the opinions of 5 consultative examiners ARNP Washington and Dr. Mitchell; erred in 6 dismissing Plaintiff’s diverticulitis as nonsevere and in not considering 7 8 Plaintiff’s PTSD and ADHD at ground two; erred in rejecting Plaintiff’s 9 subjective complaints; and erred at step four and step five.49 The 10 Commissioner argues the ALJ’s findings regarding the medical opinion 11 12 13 48 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 14 980 (9th Cir. 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 15 1035 (9th Cir. 2007) (The court “must consider the entire record as a 16 whole, weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner's conclusion,” not simply the evidence 18 cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 19 20 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does 21 not indicate that such evidence was not considered[.]”). 22 49 ECF No. 11. 23 1 evidence and Plaintiff’s subjective claims are supported by substantial 2 evidence, that any error at step two was harmless, and that Plaintiff’s 3 claims of error at steps four and five are dependent on prevailing in her 4 prior claims.50 As is explained below, the ALJ erred when evaluating 5 the medical opinions; on remand, the ALJ is to reevaluate the medical 6 opinions and testimony, develop the record as needed, and properly 7 8 consider Plaintiff’s combined impairments. 9 A. Medical Opinions: Plaintiff establishes consequential 10 error. 11 Plaintiff argues the ALJ erred by failing to properly consider the 12 supportability and consistency of ARNP Washington’s opinions and 13 failed to give Dr. Mitchell’s opinions due consideration because she 14 15 referred to him as Mr. Mitchell rather than Dr. Mitchell. The 16 Commissioner argues the ALJ reasonably articulated her reasoning as 17 to the supportability and consistency of ARNP Washington’s opinions 18 and that although the ALJ referred to Dr. Mitchell as Mr. Mitchell 19 several times she also stated that he held a PhD. After considering 20 21
22 50 ECF No. 16. 23 1 each of the medical opinions and the reasons for their issuance, the 2 Court determines the ALJ’s overall evaluation of the medical opinions 3 is not supported by substantial evidence. 4 1. Standard 5 The ALJ must consider and articulate how persuasive she found 6 7 each medical opinion and prior administrative medical finding, 8 including whether the medical opinion or finding was consistent with 9 and supported by the record.51 The factors for evaluating the 10 persuasiveness of medical opinions include, but are not limited to, 11 supportability, consistency, relationship with the claimant, and 12 specialization.52 Supportability and consistency are the most important 13 14 factors.53 When considering the ALJ’s findings, the Court is 15 16 17
18 51 20 C.F.R. §§ 404.1520c, 416.920c(a)–(c); Woods v. Kijakazi, 32 F.4th 19 20 785, 792 (9th Cir. 2022). 21 52 20 C.F.R. §§ 404.1520c, 416.920c(c)(1)–(5). 22 53 Id. §§ 404.1520c, 416.920c(b)(2). 23 1 constrained to the reasons and supporting explanation offered by the 2 ALJ.54 3 The regulations define these two required factors as follows: 4 (1) Supportability. The more relevant the objective medical 5 evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) 6 or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative 7 medical finding(s) will be. 8 (2) Consistency. The more consistent a medical opinion(s) or 9 prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the 10 claim, the more persuasive the medical opinion(s) or prior 11 administrative medical finding(s) will be.55 12 2. ARNP Washington’s Opinion 13 On November 12, 2021, Plaintiff was examined by Marquetta 14 Washington, ARNP, at the request of the Commissioner.56 Plaintiff’s 15 chief complaints were degenerative disc disorder, herniated disc, 16 depression, and anxiety.57 ARNP Washington said that she reviewed 17
18 54 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 19 20 55 20 C.F.R. §§ 404.1520c(1)-(2), 416.920c(c)(1)–(2). 21 56 AR 659-667. 22 57 AR 659. 23 1 an August 4, 2021 treatment note from Dr. Wenger, Jr. and an August 2 27, 2021, treatment note of Dr. O’Conner, both of Prosser Clinic, as 3 well as a March 6, 2018 X-Ray of the cervical and lumbar spine.58 4 ARNP Washington noted that Plaintiff had history of a degenerative 5 disc disorder and herniated disc, and that standing for prolonged 6 periods and lifting triggered symptoms and noted that Plaintiff was 7 8 presently taking Meloxicam, acyclovir, sertraline, and Trintellix.59 She 9 listed Plaintiff’s past medical and surgical history as arthritis in both 10 ankles, endometriosis, cholecystectomy, and ganglion cyst, right 11 hand.60 Plaintiff reported that she could perform self-care, that she 12 could climb stairs using a handrail, that she could cook and wash 13 dishes 2-3 days a week but family helps the other days, that she can 14 15 drive and pick up pre-ordered grocery items, that she can manage her 16 finances, that she plays board games with family weekly, and that her 17 18 19 20 58 Id. 21 59 AR 659-660. 22 60 AR 660. 23 1 cousin does her yard work.61 Plaintiff reported occasional headaches, 2 intermittent tinnitus, and depression and anxiety.62 3 On examination, Plaintiff was oriented, walked without difficulty, 4 could rise and sit from a chair without assistance, could make a fist 5 and touch her thumb to each finger, was able to pick up a coin, button 6 and unbutton and zip and unzip without difficulty.63 Plaintiff’s skin, 7 8 HEENT, neck, hest/lungs, cardiovascular, abdomen, and vascular 9 systems were normal.64 Plaintiff had a negative Tinel’s and Phalen’s 10 test but had flat feet bilaterally.65 Plaintiff’s gait and station were 11 stable, she had negative Romberg, she had difficulty tandem walking 12 and hopping, she was not able to walk on her toes due to ankle pain, 13 she could walk on heels, she could stand on either foot, she could squat 14 15 16
17 61 AR 660-661. 18 62 AR 661. 19 20 63 AR 661-662. 21 64 AR 662. 22 65 AR 662. 23 1 and she could remove and put on her shoes.66 Plaintiff had normal grip 2 in her hands and normal muscle tone in all extremities.67 Plaintiff’s 3 Waddell test was negative and she had sharp pain bilaterally with 4 straight leg raise in supine position at 70 degrees.68 Plaintiff had 5 grossly intact sensation in the upper and lower extremities and pain on 6 palpation in the lower back.69 7 8 ARNP Washington diagnosed Plaintiff with bilateral flat foot, 9 decreased lumbar flexion, radiculopathy, degenerative disc disease, low 10 back pain, poor balance, and morbid obesity, and opined that all would 11 last 12 months or more.70 She also diagnosed Plaintiff with low vision 12 improved with prescription glasses.71 ARNP Washington opined that 13 Plaintiff could lift and carry 20 pounds occasionally and 10 pounds 14 15
16 66 Id. 17 67 Id. 18 68 Id. 19 20 69 Id. 21 70 AR 664. 22 71 Id. 23 1 frequently due to decreased lumbar ROM and back pain; had no 2 limitations in sitting; and could stand and/or walk for 6 hours in an 3 eight-hour day but would need to alternate between sitting and 4 standing every 30 minutes due to radiculopathy and low back pain.72 5 She opined that Plaintiff had no limitation in stooping, fine motor 6 skills, overhead or forward reaching, no limitation in hearing and 7 8 speech, and would need to wear glasses at all times due to low vision.73 9 ARNP Washington opined that due to decreased lumbar ROM, 10 radiculopathy, and low back pain, Plaintiff would be limited to 11 occasionally performing the following: bending, crawling, kneeling, and 12 crouching.74 She opined that Plaintiff can never balance due to 13 decreased lumbar ROM, radiculopathy, and low back pain.75 ARNP 14 15 Washington opined that Plaintiff could not work at heights due to 16 decreased lumbar ROM, radiculopathy, and low back pain, and had no 17
18 72 Id. 19 20 73 AR 664-665. 21 74 Id. 22 75 AR 665. 23 1 limitation in the following: traveling in a car or public transport, or 2 working around heavy machinery, extremes of temperature, 3 dust/gas/fumes, noise, or vibration.76 4 The ALJ found the opinion of ARNP Washington to be not 5 persuasive. She articulated her reasoning as follows: 6 The undersigned does not find the opinion of Ms. 7 Washington persuasive. While Ms. Washington had an 8 opportunity to examine the claimant, she did not have an opportunity to review the updated record. Moreover, her 9 opinion that the claimant must alternate between standing, sitting, and walking every thirty minutes is out of 10 proportion to the longitudinal record to include, for 11 example, the largely normal findings on physical examination showing normal neurological functioning with 12 a normal gait, normal extremities with full movement and full strength, and normal cardiovascular and respiratory 13 functioning; imaging showing no more than moderate degenerative changes; and the claimant’s benign 14 presentation. The undersigned also notes that Ms. 15 Washington’s opinion is not corroborated by her own findings on examination that while the claimant had a 16 reduced range of motion in her back with positive straight leg raises and pain to palpation that she was also able to 17 walk, sit, and rise without assistance; that she had no 18 manipulative deficits with negative Phalen and Tinel findings; that she had full grip and muscle strength in her 19 upper and lower extremities with normal bulk and tone and a normal range of motion; and that she had normal 20 21
22 76 AR 666. 23 1 neurological functioning (see e.g. 1F; 5F4, 8; 6F12; 8F; 9F9, 19-20; 11F20; 17F3; finding #5).77 2 Plaintiff argues that the ALJ erred in both her assessment 3 4 of the supportability factor and the consistency factor. The Court 5 agrees. The ALJ articulated that ARNP Washington’s opinion 6 was not supported by her examination findings, but initially the 7 Court notes that a review of the supportability factor is not 8 limited to the examination findings. The supportability factor is 9 an evaluation of how well the medical provider explained the 10 11 basis for their opinion, including their review of prior and current 12 imaging studies.78 13 ARNP Washington explained that the basis for the opined 14 limitations in walking, sitting, and standing was a result of 15 radiculopathy and low back pain.79 She also explained that in 16 addition to her examination of Plaintiff she based her opinions on 17 18 19 20 77 AR 47. 21 78 20 C.F.R. §§ 404.1520c(1)-(2), 416.920c(c)(1)–(2). 22 79 AR 664. 23 1 a review of an August 4, 2021 treatment note from Dr. Wenger, 2 Jr. and an August 27, 2021 treatment note of Dr. O’Conner,as 3 well as a March 6, 2018 X-Ray of the cervical and lumbar spine.80 4 It is of note that ARNP Washington cited to the August 4, 5 2021 treatment notes of Plaintiff’s appointment with Dr. Wenger. 6 On August 4, 2021, Plaintiff presented to Robert Wenger, Jr, DO, 7 8 with abdominal pain, malaise, and nausea.81 On examination, 9 there was mild left lower quadrant and left upper quadrant 10 tenderness.82 A CBC blood test and urinalysis were abnormal and 11 a CT of the abdomen and pelvis indicated a fatty liver, 12 cholecystectomy, enlarged spleen, mild colonic wall thickening 13 suspicious for colitis.83 The CT scan also stated that there were 14 15 “prominent degenerative changes in the spine,” bilateral 16 degenerative joint disease of the hip, and that there was 17
18 80 Id. 19 20 81 AR 627. 21 82 AR 628. 22 83 AR 629. 23 1 suspicion of bilateral femoral acetabular impingement.84 A 2 finding that Plaintiff had “prominent degenerative changes in the 3 spine” is contrary to the ALJ’s finding that the imaging showed 4 only moderate changes. 5 In their briefs, the parties have also argued regarding the 6 relevancy of a positive straight leg raising test, with Plaintiff 7 8 arguing that a straight leg raising test is a test designed to test 9 for radiculopathy. The Commissioner is correct that in her brief 10 Plaintiff cited no treatise in support of her claim regarding the 11 significance of a straight leg raising test. Plaintiff’s statement is 12 correct, nonetheless. A straight leg raise test (also known as a 13 Laseque sign) is defined as “a clinical test to assess nerve root 14 15 irritation in the lumbosacral area.”85 Plaintiff is correct that the 16
17 84 Id. 18 85 Straight Leg Raise Test (Lasegue sign) - StatPearls – National 19 20 Institute of Health, National Library of Medicine (last viewed April 11, 21 2025). 22
23 1 positive test is an objective clinical test supporting ARNP 2 Washington’s diagnosis of radiculopathy. 3 The Commissioner also argued that no MRI or other 4 imaging existed supporting ARNP Washington’s diagnosis. This 5 is incorrect as the 2021 CT scan discussed above indicated 6 “prominent degenerative changes” and as far back as 2018, an 7 8 MRI was performed which indicated disc space desiccation at L3 9 to S1; disc bulging at L3-4; posterior osteophyte at L4-5; disc 10 bulging at L4-5 with bilateral moderate neuroforaminal 11 narrowing, and disc bulging at L5-S1.86 There is a significance 12 that there was neuroforaminal narrowing because this is a 13 condition, which can cause compression of the nerve roots, the 14 15 basis for radiculopathy.87 16 The ALJ’s explanation fails to consider ARNP Washington’s 17 explanation of the basis for her opined limitation and fails to 18 19 20 86 Id. 21 87 Foraminal Stenosis, Cleveland Clinic. www.clevelandclinic.org. (last 22 viewed April 11, 2025.) 23 1 consider the importance of relevant information. Additionally, 2 the ALJ fails to explain why Plaintiff’s lack of manipulative 3 deficits, negative Phalen’s and Tinel’s signs and full grip strength 4 had any bearing on her lumbar radiculopathy and symptoms 5 related to her lower extremities.88 The ALJ failed to consider 6 ARNP Washington’s more relevant findings, such as positive 7 8 straight leg raising test, an inability to walk on her toes, and 9 difficulty with tandem walking or hopping and instead focused on 10 a lack of weakness and pain in her hands.89 11 12 13 88 See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) 14 (emphasizing that treatment records must be viewed considering the 15 overall diagnostic record); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 16 Cir. 1984) (disallowing the ALJ from cherry picking evidence to support 17 a conclusion that contradicts the overall diagnostic record); Reddick v. 18 Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“The ALJ must do more than 19 20 state conclusions. He must set forth his own interpretations and 21 explain why they, rather than the doctors’ [opinions] are correct.”). 22 89 AR 47, 662. 23 1 The ALJ’s errors when evaluating ARNP Washington’s 2 opinion impacted the ALJ’s “consistency” analysis as to the 3 medical evidence. As noted above, the ALJ failed to consider the 4 consistency of ARNP Washington’s examination findings and 5 opinions with the findings of Dr. Wenger, the 2021 CT scan 6 showing “prominent” degenerative changes in the spine, and the 7 8 2018 MRI indicating bilateral neuroforaminal narrowing. 9 The Court concludes that a remand is warranted for the 10 ALJ to properly evaluate ARNP Washington’s opinions with due 11 consideration of both the supportability and consistency factors. 12 3. Dr. Michell’s Opinion 13 14 Because the Court has found that remand is warranted, it will 15 address this issue briefly. 16 On October 12, 2021, Joel Michell, PhD, examined Plaintiff at the 17 request of the Commissioner.90 Based on his examination, Dr. Mitchell 18 diagnosed Plaintiff with depressive disorder, recurrent, moderate; and 19 20 21
22 90 AR 651-658. 23 1 generalized anxiety disorder.91 He opined that Plaintiff: is able to 2 manage funds, would not have substantial difficulty performing simple 3 and repetitive tasks, would not have substantial difficulty performing 4 detailed and complex tasks, would not have substantial difficulty 5 accepting instructions from supervisors, would not have substantial 6 difficulty interacting with coworkers and the public, would not have 7 8 substantial difficulty performing work activities on a consistent basis 9 without special or additional instructions, would have substantial 10 difficulty maintaining regular attendance and completing a typical 11 workday or work week without interruptions from a psychiatric 12 condition, and would not have substantial difficulty dealing with 13 typical stressors typical in the workplace.92 14 15 The ALJ found Dr. Michell’s opinion not persuasive and 16 articulated the following reasoning: 17 The undersigned does not find the opinion of Mr. Mitchell 18 persuasive. While Mr. Mitchell had an opportunity to examine the claimant, he did not have an opportunity to 19 review the updated record. Moreover, his opinion that the 20 21 91 AR 656. 22 92 AR 657-658. 23 1 claimant would have substantial difficulties due to mental symptoms not corroborated by the longitudinal record to 2 include, for example, the ability of the claimant to interact appropriately with providers, who have described her as 3 cooperative with normal behavior; her appropriate or 4 otherwise unremarkable hygiene and grooming; her frequently normal mood and affect; her intact cognition on 5 mental status examinations with intact memory and concentration; and the findings and observations of Mr. 6 Mitchell, himself, during an October 2021 consultative examination during which while the claimant was sad with 7 intermittent tearfulness, she was also noted to have “largely 8 normal concentration, pace, and persistence with little redirection required” with formal mental status testing 9 showing wholly intact cognition as evidenced by her intact memory; appropriate fund of knowledge; intact 10 concentration with the capacity to complete Serial 7s; intact 11 abstract thinking; and appropriate insight and judgment (see e.g. 4F4, 8; 6F7, 12; 7F; 8F; 10F16; 11F20; 12F3; 16F3; 12 findings #4 and #5).93
13 Plaintiff argues that it is unclear whether the ALJ properly gave 14 15 credit to Dr. Michell’s experience and degree because she called him 16 Mr. Mitchell rather than Dr. Michell. The Commissioner argues that 17 the ALJ identified Dr. Mitchell as Joel Mitchell, PhD, and therefore 18 clearly understood his qualifications. 19 20 21
22 93 AR 46. 23 1 The Court notes that the ALJ referred to Dr. Mitchell by the term 2 Mr. not once but three times. Moreover, when addressing the opinions 3 of Leslie Postovoit, PhD, and Steven Haney, PhD, who hold the same 4 degree as Dr. Mitchell, the ALJ repeatedly referred to then as Drs. 5 Postovoit and Haney.94 6 It is unclear to the Court whether the ALJ correctly considered 7 8 Dr. Michell’s proper qualifications when evaluating his opinion. To the 9 extent that the Court has already found remand to be warranted, this 10 issue will be addressed on remand. 11 B. Step Two: Plaintiff established consequential error. 12 Plaintiff alleges that the ALJ erred in failing to properly consider 13 her diverticulitis.95 Because the Court has determined that remand is 14 15 warranted, it will only briefly address this issue. 16 At the July 2023 hearing, Plaintiff testified that it was not yet 17 known whether the February 2023 ostomy surgery performed to 18 address her diverticulitis would be able to be reversed or whether she 19 20 21 94 AR 45-46. 22 95 ECF No. 11. 23 1 would be permanently required to wear an ostomy bag.96 At the time of 2 the hearing and issuance of the decision, a period of 12 months had not 3 yet passed. To the extent that the passage of time will now allow the 4 ALJ on remand to determine if the condition lasted the requisite 12 5 months under the statute to be considered as disabling, the ALJ is 6 directed on remand to reevaluate all of Plaintiff’s impairments. 7 8 C. Symptom Reports: This issue is moot. 9 Plaintiff argues that the ALJ failed to provide valid reasons for 10 discounting her subjective complaints. Because the Court has 11 remanded the case with direction that the ALJ re-evaluate the medical 12 opinions and Plaintiff’s impairments, the ALJ will be required to re- 13 evaluate Plaintiff’s symptom reports. This issue is therefore moot. 14 15 D. Steps Four and Five: Plaintiff established consequential 16 error. 17 Plaintiff argues the ALJ failed to properly include all his 18 limitations into the RFC and the hypothetical presented to the 19 vocational expert. This argument depends on her contentions that the 20 21
22 96 AR 68-69. 23 1 ALJ erred in evaluating the medical opinions as described above. As 2 explained above, Plaintiff met her burden in showing that the ALJ 3 erred in analyzing the medical opinions. 4 E. Remand for Further Proceedings 5 Plaintiff submits a remand for payment of benefits is warranted. 6 The decision whether to remand a case for additional evidence, or 7 8 simply to award benefits, is within the discretion of the court.”97 When 9 the court reverses an ALJ’s decision for error, the court “ordinarily 10 must remand to the agency for further proceedings.”98 11 The Court finds that further development is necessary for a 12 proper disability determination. Here, it is not clear what, if any, 13 14
15 97 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone 16 v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 17 98 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke 379 18 F.3d at 595 (“[T]he proper course, except in rare circumstances, is to 19 20 remand to the agency for additional investigation or explanation”); 21 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 22 2014). 23 1 additional limitations are to be added to the RFC. As noted above, on 2 remand the ALJ is to properly consider the medical opinions, Plaintiff’s 3 alleged impairments, and Plaintiff’s symptom reports. 4 IV. Conclusion 5 Plaintiff establishes the ALJ erred. The ALJ is to develop the 6 record and reevaluate—with meaningful articulation and evidentiary 7 8 support—her evaluation of the medical opinions, Plaintiff’s 9 impairments, and Plaintiff’s subjective complaints. 10 Accordingly, IT IS HEREBY ORDERED: 11 1. The ALJ’s nondisability decision is REVERSED, and this 12 matter is REMANDED to the Commissioner of Social 13 Security for further proceedings pursuant to 14 15 sentence four of 42 U.S.C. § 405(g). 16 2. The Clerk’s Office shall TERM the parties’ briefs, ECF 17 Nos. 11 and 16, enter JUDGMENT in favor of Plaintiff, 18 and CLOSE the case. 19
21 22 23 1 IT IS SO ORDERED. The Clerk’s Office is directed to file this 2 order and provide copies to all counsel. ° DATED this day of April 2025. 4 . Med I Yoew EDWARD F. SHEA 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
DISPOSITIVE ORDER - 33