Johnson v. Commissioner of Social Security

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ADAM H.J., Case No. 3:21-cv-05088-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of defendant’s denial of his 13 application for child disability insurance benefits. 14 The parties have consented to have this matter heard by the undersigned 15 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 16 MJR 13. 17 I. ISSUES FOR REVIEW 18 A. Did the ALJ Properly Evaluate the Medical Opinion Evidence? 19 B. Does New Evidence Submitted to the Appeals Council Affect the ALJ’s 20 Determination? 21 II. BACKGROUND 22 On April 12, 2018, Plaintiff filed an application for child disability insurance 23 benefits, alleging in that application a disability onset date of January 1, 2016. 24 Administrative Record (“AR”) 24. Plaintiff’s application was denied upon official review 1 and upon reconsideration. AR 86, 101. A hearing was held before Administrative Law 2 Judge (“ALJ”) Cynthia Rosa on April 6, 2020, followed by a supplemental hearing before 3 the same ALJ on June 11, 2020. AR 42–67, 68–85. On June 25, 2020, the ALJ issued a 4 decision finding that Plaintiff was not disabled. AR 21–41. On December 8, 2020, the

5 Social Security Appeals Council denied Plaintiff’s request for review. AR 1–7. 6 Plaintiff seeks judicial review of the ALJ’s decision. Dkt. 5. 7 III. STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s 9 denial of Social Security benefits if the ALJ’s findings are based on legal error or not 10 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 11 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Biestek v. 13 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 14 IV. DISCUSSION

15 In this case, the ALJ found that Plaintiff had the severe, medically determinable 16 impairments of myotonic muscular dystrophy, neurodevelopmental disorder, learning 17 disorder in reading and written expression, attention deficit hyperactivity disorder 18 (“ADHD”), and other specified anxiety and depressive disorders. AR 27. Based on the 19 limitations stemming from these impairments, the ALJ found that Plaintiff could perform 20 a reduced range of light work. AR 29. Relying on vocational expert (“VE”) testimony, the 21 ALJ found at step four that Plaintiff had no past relevant work, but also found Plaintiff 22 could perform other light, unskilled jobs at step five of the sequential evaluation; leading 23 the ALJ to conclude at step five that Plaintiff was not disabled. AR 34–35.

24 1 A. Whether the ALJ Properly Evaluated the Medical Opinion Evidence 2 Plaintiff challenges the ALJ’s evaluation of a medical opinion from Plaintiff’s 3 treating pediatrician, Richard Barsotti, M.D. Dkt. 20, p. 12. In addition, Plaintiff alleges 4 that new evidence presented to the Appeals Council—a letter from treating physician

5 Matthew Van Auken, M.D.—undermines the ALJ’s decision. Dkt. 20, p. 10. 6 1. Medical Opinion Standard of Review 7 Under current Ninth Circuit precedent, an ALJ must provide “clear and 8 convincing” reasons to reject the uncontradicted opinions of an examining doctor, and 9 “specific and legitimate” reasons to reject the contradicted opinions of an examining 10 doctor. See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). 11 The Social Security Administration, for applications filed on or after March 12 27, 2017, changed the regulations applicable to evaluation of medical opinions. 13 Hierarchy among medical opinions has been eliminated, but ALJs are required to 14 explain their reasoning and specifically address how they considered the supportability

15 and consistency of each opinion. Under these regulations, for claims filed on or after 16 March 27, 2017, the Commissioner “will not defer or give any specific evidentiary weight 17 . . . to any medical opinion(s) . . . including those from [the claimant’s] medical sources.” 18 20 C.F.R. §§ 404.1520c(a), 416.920c(a); see also, Revisions to Rules Regarding the 19 Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017). In addition, the 20 2017 regulations provide that physician’s assistants are acceptable medical sources for 21 providing opinions. 20 C.F.R. 404.1502(a)(8). 22 The Ninth Circuit has not yet considered the 2017 regulations, or whether the 23 change in regulations will cause the Court of Appeals to reevaluate its holdings

24 1 regarding the legal standards of “clear and convincing” or “specific and legitimate” 2 reasons for an ALJ to reject medical opinions. The Ninth Circuit mentioned the pre- 3 March 27, 2017 regulations and found that its precedent in Murray v. Heckler, 722 F.2d 4 499, 501–02 (9th Cir. 1983), setting forth legal standards for treating and examining

5 doctors would be consistent with the C.F.R. provisions. See Lester v. Chater, 81 F.3d 6 821, 830-833 (9th Cir. 1996); 20 C.F.R. §§ 404.1527, 416.927. The Ninth Circuit has 7 repeatedly held that an ALJ must have specific, legitimate reasons supported by 8 substantial evidence in order to reject or discount the opinion of an examining doctor if 9 the opinion is contradicted by another doctor’s opinion. See Lester, 81 F.3d at 830–33; 10 Ryan v. Commissioner of Social Sec., 528 F.3d 1194, 1198-99 (9th Cir. 2008). 11 The genesis of the “specific and legitimate” substantive legal standard is Murray 12 v. Heckler, at 501–02. In that case, the Ninth Circuit did not mention any regulations 13 promulgated by the Social Security Administration (the regulations that set forth different 14 ways of considering various types of doctor opinions were promulgated in 1991, 56 FR

15 36932-01, 1991 WL 142361). The Court reviewed precedent from other circuits and 16 determined that an ALJ’s decision rejecting or discounting a treating physician’s opinion 17 that conflicts with a physician who saw the patient only once, would need to meet the 18 following substantive legal standard: The ALJ’s findings would be upheld if they are 19 based on reasons that are specific and legitimate. Murray, at 502. This “specific and 20 legitimate” standard is in addition to the requirement of substantial evidence. Id. 21 Therefore, the ALJ’s explanation must be legitimate, as the Court will not affirm a 22 decision that is based on legal error or not supported by substantial evidence. See 23 Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017).

24 1 Regardless of whether a claim pre- or post-dates this change to the regulations, 2 an ALJ’s reasoning must be supported by substantial evidence and free from legal 3 error. Ford v. Saul, 950 F.3d 1141, 1153-56 (9th Cir. 2020) (citing Tommasetti v. Astrue, 4 533 F.3d 1035, 1038 (9th Cir. 2008)); see also Murray v. Heckler, 722 F.2d 499, 501–02

5 (9th Cir. 1983). Thus, the regulations require the ALJ to provide specific and legitimate 6 reasons to reject a doctor’s opinions. See also Kathleen G. v. Comm’r of Soc. Sec., No. 7 C20-461 RSM, 2020 WL 6581012 at *3 (W.D. Wash. Nov. 10, 2020) (unpublished 8 opinion) (finding that the new regulations do not clearly supersede the “specific and 9 legitimate” standard because the “specific and legitimate” standard refers not to how an 10 ALJ should weigh or evaluate opinions, but rather the standard by which the Court 11 evaluates whether the ALJ has reasonably articulated his or her consideration of the 12 evidence). 13 Under 20 C.F.R. § 416.920c(a), (b)(1)-(2), the ALJ is required to explain whether 14 the medical opinion or finding is persuasive, based on whether it is supported and

15 whether it is consistent. Brent S. v. Commissioner, Social Security Administration, No. 16 6:20-CV-00206-BR, 2021 WL 147256 at *5 - *6 (D. Oregon January 16, 2021). 17 2. Opinion of Dr. Barsotti 18 Richard Barsotti, M.D., Plaintiff’s pediatrician until he reached adulthood, offered 19 a letter describing the effects of Plaintiff’s impairments on March 12, 2020. AR 696–97. 20 Therein, he stated that Plaintiff’s myotonic muscular dystrophy interfered with the 21 function of multiple body systems: gastrointestinal irregularities caused Plaintiff to 22 experience severe abdominal pain and cramping on a daily basis, hypersomnolence 23 caused him to have difficulty concentrating on tasks, and intellectual and emotional

24 1 difficulties limited his ability to cope with other symptoms. AR 695. Dr. Barsotti stated 2 that, if Plaintiff worked at a full-time job, he could be expected to miss more than two 3 days of work per month due to his gastrointestinal symptoms alone. AR 696. 4 The ALJ did not find this opinion persuasive, reasoning that (1) his opinion did

5 not address the period in issue, because Plaintiff transitioned to a different primary care 6 provider at age 18; (2) the opinion was inconsistent with the medical record as a whole; 7 (3) the opinion’s credibility was undermined by Plaintiff’s non-compliance with his 8 medication regimen, and (4) it was also inconsistent with his part-time work experience. 9 The ALJ’s reasoning in finding this opinion unpersuasive was unsupported by 10 substantial evidence, and the ALJ’s reliance thereon was erroneous. 11 With respect to the ALJ’s first reason, the ALJ found that the period at issue for 12 the purpose of her disability determination began on Plaintiff’s 18th birthday in January 13 2018. Plaintiff applied for child disability insurance benefits in April 2018, alleging 14 disability beginning January 1, 2016. AR 24. As the ALJ found, pursuant to 20 C.F.R. §

15 404.350, the earliest month a child disability insurance benefits applicant can receive 16 those benefits is the applicant’s 18th birthday. But while the regulations set the earliest 17 date an applicant can receive benefits, they “say nothing about when a claimant’s 18 disability actually begins.” Owen v. Colvin, No.15-5933-KLS, 2016 WL 6080910 at *3 19 (W.D. Wash. Oct. 18, 2016). 20 Here, Plaintiff claimed he became disabled in 2016. Dr. Barsotti continued 21 treating Plaintiff from 2016 into February 2018, before Plaintiff transitioned to a different 22 primary care provider, but after the beginning of the relevant period, and rendered his 23 opinion in March 2020. Thus, the opinion clearly describes Plaintiff’s functioning within

24 1 the relevant period, and the ALJ did not make any finding that Plaintiff’s condition 2 changed within this period. The ALJ erred in rejecting Dr. Barsotti’s opinion on the basis 3 it did not describe Plaintiff’s functioning within the relevant period. 4 With respect to the ALJ’s second reason, an ALJ may reject a treating or

5 examining physician’s opinion on the ground that it is not supported by objective 6 medical findings. Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989). Here, the 7 ALJ found Dr. Barsotti’s opinion inconsistent with three physical exams and one 8 computerized tomography (“CT”) scan that each showed mostly normal results, aside 9 from one of the physical exams showing mild left upper quadrant tenderness to 10 palpation. AR 35 (citing AR 612–17, 635–46, 673, 690). While the ALJ’s factual 11 statements about the medical examination and CT scan findings were supported by the 12 record, those medical findings are not contrary to Dr. Barsotti’s opinion regarding 13 Plaintiff’s hypersomnolence, gastrointestinal tract issues, and intellectual and mental 14 limitations. Nor does the ALJ explain how a normal CT scan had any relationship to Dr.

15 Barsotti’s opinion that Plaintiff would miss more than two days per month, experience 16 irregular yet severe abdominal pain, or have difficulty with concentration and 17 persistence. See AR 35, 696. Therefore, the ALJ’s reasoning is not supported by the 18 record, and not legitimate because it relied on irrelevant data. 19 With respect to the ALJ’s third reason, the ALJ also pointed to evidence of 20 Plaintiff’s non-compliance with medication recommendations. AR 35 (citing AR 575, 21 673). An ALJ appropriately considers an unexplained or inadequately explained failure 22 to seek treatment or follow a prescribed course of treatment. Tommasetti, 533 F.3d at 23 1039. Yet the ALJ’s citations to the administrative record in support of this finding do not

24 1 document an unexplained failure to comply with treatment recommendations—both 2 citations indicate that Plaintiff had a physical abnormality that prevented him from being 3 able to properly swallow – he did not take medications in pill form due to difficulty 4 swallowing. AR 575, 673. Thus, this reasoning was not supported by substantial

5 evidence. 6 With respect to the ALJ’s fourth reason, “[a]n ALJ may consider any work activity, 7 including part-time work, in determining whether a claimant is disabled.” Ford, 950 F.3d 8 at 1156. Yet “the sporadic ability to work [is] not inconsistent with disability.” Lester, 81 9 F.3d at 833. Here, Plaintiff stated that he worked part time at a security job, but left in 10 November 2019 after about three months. AR 49-51, 54-58. In the ALJ’s decision, 11 Plaintiff’s work was characterized as follows: 12 [Plaintiff] was able to complete work shifts, concentrate and attend adequately during his shifts, and complete his duties both physically and 13 mentally. . . . [T]he record indicates this work ended for reasons unrelated to [Plaintiff’s] impairments, and although he testified as to days missed at 14 this job due to his gastrointestinal issues, this does not appear to be a reason for discontinuing this work. 15 AR 35. 16 The ALJ’s discussion of this work activity does not show any inconsistency with 17 Dr. Barsotti’s statement, in which Dr. Barsotti acknowledged Plaintiff had worked over a 18 four-month period and missed an excessive number of shifts during this period. See AR 19 696. 20 The Commissioner’s brief appears to indicate that Dr. Barsotti’s opinion was 21 based on Plaintiff’s subjective complaints, but this was not a reason given by the ALJ for 22 rejecting the opinion. “Long-standing principles of administrative law require us to 23 review the ALJ's decision based on the reasoning and factual findings offered by the 24 1 ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have 2 been thinking.” Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 3 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. 4 Ed. 1995 (1947)).

5 B. Whether New Evidence Submitted to the Appeals Council Undermines 6 the ALJ’s Decision 7 Next, Plaintiff asserts that new evidence submitted to the Appeals Council after 8 the ALJ’s decision, a letter from his current primary care provider, Matthew Van Auken, 9 M.D., was improperly excluded from consideration. Dkt. 20, pp. 10–12. 10 The Court may review new evidence presented first to the Appeals Council when 11 determining whether or not “in light of the record as a whole, the ALJ’s decision was 12 supported by substantial evidence and was free of legal error.” Taylor v. Comm’r of 13 SSA, 659 F.3d 1228, 1232 (9th Cir. 2011) (citing Ramirez v. Shalala, 8 F.3d 1449, 14 1451–54 (9th Cir. 1993)). The Ninth Circuit did not require a finding that plaintiff had

15 good cause for failing to produce the new evidence earlier. See Ramirez, 8 F.3d at 16 1451–54; see also Taylor, 659 F.3d at 1232. 17 The Ninth Circuit has held that “when a claimant submits evidence for the first 18 time to the Appeals Council, which considers that evidence in denying review of the 19 ALJ’s decision, the new evidence is part of the administrative record, which the district 20 court must consider in determining whether [or not] the Commissioner’s decision is 21 supported by substantial evidence.” Brewes v. Comm’r of SSA, 682 F.3d 1157, 1159– 22 60 (9th Cir. 2012) (emphasis added); see also Shalala v. Schaefer, 509 U.S. 292, 297 23 n.2 (1993) (“[s]entence-six remands may be ordered in only two situations: where the

24 1 Secretary requests a remand before answering the complaint, or where new, material 2 evidence is adduced that was for good cause not presented before the agency”) 3 (emphasis added) (citing 42 U.S.C. § 405(g) (sentence six); Melkonyan v. Sullivan, 501 4 U.S. 89, 99-100 (1991).

5 Here, the new evidence was an opinion from Plaintiff’s primary care provider, Dr. 6 Van Auken, dated September 23, 2020. In that opinion, Dr. Van Auken indicated: 7 normal CT scans and physical examinations would not accurately measure the severity 8 of Plaintiff’s myotonic muscular dystrophy symptoms; Plaintiff’s apparent noncompliance 9 with his medication regime was actually a result of those symptoms (“[d]ifficulty 10 swallowing is one of the most prominent and common features of MMD. . .”[i]t is 11 challenging for him now. . . . I understand that his prescribing doctor, Dr. Degen, agreed 12 that it is fine for him not to take those medications in light of his swallowing issues”); and 13 Plaintiff could be expected to miss work, on average, at least two days per month in a 14 full-time job. AR 8. The Appeals Council found that this new evidence did not provide a

15 basis for changing the ALJ’s decision, reasoning that it did not relate to the period at 16 issue because it was rendered after the ALJ’s June 25, 2020 decision. AR 1–2. 17 Dr. Van Auken’s letter does not, however, describe Plaintiff’s functioning only at a 18 snapshot in time after the relevant period. Rather, Dr. Van Auken based his letter on his 19 treatment and observations of Plaintiff from March 2018 on, when Plaintiff transitioned 20 into Dr. Van Auken’s care from Dr. Barsotti’s. See AR 8, 491. Thus, the Commissioner’s 21 finding that this opinion does not relate to the relevant period is inaccurate. 22 In addition, contrary to the Commissioner’s brief on appeal, this evidence 23 undermines the ALJ’s decision, as Dr. Van Auken indicated that CT and physical

24 1 examinations were largely irrelevant to the assessment of a functional condition caused 2 by a genetic anomaly. See Dkt. 21, p. 9; AR 8. Dr. Van Auken also indicated that 3 Plaintiff’s apparent non-compliance with recommended treatment was caused by 4 Plaintiff’s inability to swallow, a point ignored in the ALJ’s decision but corroborated in

5 the medical evidence. See AR 8, 575, 673. Finally, the Commissioner offers no support 6 for the assertion that Dr. Van Auken’s opinion was based entirely on information 7 provided by Plaintiff’s counsel, rather than his own recorded observations. AR 8. 8 1. Harmless Error 9 An error is harmless only if it is not prejudicial to the claimant or “inconsequential” 10 to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r Soc. Sec. Admin., 11 454 F.3d 1050, 1055 (9th Cir. 2006). 12 Here, the ALJ improperly discounted Dr. Barsotti’s opinion in making an RFC 13 assessment. This RFC informed the ALJ’s conclusion that Plaintiff was not disabled. 14 Further, the Appeals Council improperly disregarded evidence from Dr. Van Auken that,

15 if credited, would have further undermined the evidentiary support for the ALJ’s 16 decision. Because these errors were of consequence to the ultimate determination of 17 disability, the errors were harmful. 18 2. Remedy 19 Plaintiff asks that, if this Court finds harmful error in the ALJ’s decision, the case 20 be remanded for additional proceedings. Dkt. 20, p. 17. “‘The decision whether to 21 remand a case for additional evidence, or simply to award benefits[,] is within the 22 discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting 23 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If an ALJ makes an error and

24 the record is uncertain and ambiguous, the court should remand to the agency for 1 further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Likewise, if 2 the court concludes that additional proceedings can remedy the ALJ’s errors, it should 3 remand the case for further consideration. See, Revels v. Berryhill, 874 F.3d 648, 668 4 (9th Cir. 2017).

5 It is unnecessary for the ALJ to “discuss all evidence presented”. Vincent on 6 Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) 7 (emphasis in original). The ALJ commits error if they reject significant probative 8 evidence, without explaining reasons for the rejection. Flores v. Shalala, 29 F.3d 562, 9 570-571 (9th Cir. 1995). Therefore, at step five, hypothetical questions posed by the ALJ 10 to the vocational expert must include each of the claimant’s physical and mental 11 limitations as established by facts in the administrative record; the ALJ may not reject 12 significant probative evidence – unless the ALJ’s written decision gives reasons (based 13 on substantial evidence) for disregarding particular evidence. Id. 14 Remand for additional proceedings is the appropriate remedy here. The ALJ

15 erred in evaluating Dr. Barsotti’s opinion, and new evidence submitted to the Appeals 16 Council further undermines the ALJ’s reasoning. The RFC is less restrictive than the 17 limitations described by Dr. Barsotti and Dr. Van Auken. AR 29. The ALJ did not include 18 the limitations found by Dr. Barsotti or Dr. Van Auken in the hypothetical questions to 19 the vocational expert. AR 59-62. This case is remanded to the Social Security 20 Administration for further administrative proceedings – the ALJ is directed to hold a new 21 hearing, re-evaluate Dr. Barsotti’s opinion, evaluate Dr. Van Auken’s opinion, and take 22 additional evidence and testimony as necessary. 23

24 1 CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ erred when she 3 determined plaintiff to be not disabled. Defendant’s decision to deny benefits therefore 4 is REVERSED and this matter is REMANDED for further administrative proceedings.

5 Dated this 12th day of January, 2022. 6 7 A 8 Theresa L. Fricke 9 United States Magistrate Judge

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24