Johnson v. Kijakazi

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Sep 08, 2022

3 SEAN F. MCAVOY, CLERK

4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON

TRE J.,1 No. 4:21-cv-5014-EFS 7

Plaintiff, 8 ORDER GRANTING PLAINTIFF’S v. SUMMARY-JUDGMENT MOTION, 9 DENYING DEFENDANT’S KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION, 10 Commissioner of Social Security, AND REMANDING FOR ADDITIONAL PROCEEDINGS 11 Defendant. 12 13 14 Plaintiff Tre J. appeals the denial of benefits by the Administrative Law 15 Judge (ALJ). Because the ALJ did not explain why Plaintiff was not limited to 1- 16 to-2-step instructions, and because the ALJ did not reconcile the apparent conflict 17 between such a limitation and the requirements of the jobs that he found Plaintiff 18 could perform, the ALJ erred. The Court therefore reverses the decision of the ALJ 19 and remands this matter for further proceedings. 20

21 1 For privacy reasons, the Court refers to Plaintiff by first name and last initial or 22 as “Plaintiff.” See LCivR 5.2(c). 23 1 I. Five-Step Disability Determination 2 A five-step sequential evaluation process is used to determine whether an

3 adult claimant is disabled.2 Step one assesses whether the claimant is engaged in 4 substantial gainful activity.3 If the claimant is engaged in substantial gainful 5 activity, benefits are denied.4 If not, the disability evaluation proceeds to step 6 two.5 7 Step two assesses whether the claimant has a medically severe impairment 8 or combination of impairments that significantly limit the claimant’s physical or 9 mental ability to do basic work activities.6 If the claimant does not, benefits are

10 denied.7 If the claimant does, the disability evaluation proceeds to step three.8 11 Step three compares the claimant’s impairment or combination of 12 impairments to several recognized by the Commissioner as so severe as to preclude 13 substantial gainful activity.9 If an impairment or combination of impairments 14

15 2 20 C.F.R. §§ 404.1520(a), 416.920(a). 16 3 Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 17 4 Id. §§ 404.1520(b), 416.920(b). 18 5 Id. §§ 404.1520(b), 416.920(b). 19 6 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 20 7 Id. §§ 404.1520(c), 416.920(c). 21 8 Id. §§ 404.1520(c), 416.920(c). 22 9 Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 23 1 meets or equals one of the listed impairments, the claimant is conclusively 2 presumed to be disabled.10 If not, the disability evaluation proceeds to step four.

3 Step four assesses whether an impairment prevents the claimant from 4 performing work he performed in the past by determining the claimant’s residual 5 functional capacity (RFC).11 If the claimant can perform past work, benefits are 6 denied.12 If not, the disability evaluation proceeds to step five. 7 Step five, the final step, assesses whether the claimant can perform other 8 substantial gainful work—work that exists in significant numbers in the national 9 economy—considering the claimant’s RFC, age, education, and work experience.13

10 If so, benefits are denied. If not, benefits are granted.14 11 The claimant has the initial burden of establishing he is entitled to disability 12 benefits under steps one through four.15 At step five, the burden shifts to the 13 Commissioner to show the claimant is not entitled to benefits.16 14

15 10 20 C.F.R. §§ 404.1520(d), 416.920(d). 16 11 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 17 12 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 18 13 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 19 1497–98 (9th Cir. 1984). 20 14 20 C.F.R. §§ 404.1520(g), 416.920(g). 21 15 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 22 16 Id. 23 1 II. Factual and Procedural Summary 2 Plaintiff filed a Title 16 application, initially alleging disability beginning

3 April 23, 2015, and later amending the alleged onset date to September 3, 2018.17 4 His claim was denied initially and on reconsideration. Upon request, ALJ Stewart 5 Stallings held an administrative hearing via telephone and took testimony from 6 Plaintiff about his conditions and symptoms.18 An impartial vocational expert also 7 testified at the hearing.19 After the hearing, the ALJ issued a decision denying 8 Plaintiff’s disability application and finding as follows: 9 • Step one: Plaintiff had not engaged in substantial gainful activity since

10 September 3, 2018, the application date and alleged onset date. 11 • Step two: Plaintiff had the following medically determinable severe 12 impairments: 13 o seizure disorder; o right knee meniscal tear, status post-surgery; 14 o right shoulder instability, status post-surgery; o depressive disorder; 15 o anxiety disorder; o attention-deficit disorder; and 16 o impulse-control disorder.

17 18 19

20 17 AR 40–41, 167–82. 21 18 AR 15, 36–70. 22 19 AR 15, 36–70. 23 1 • Step three: Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the

3 listed impairments. 4 • RFC: Plaintiff had the RFC to perform light work, subject to the following 5 additional limitations: 6 the claimant can lift and carry up to twenty pounds occasionally and ten pounds frequently. He can stand and walk 7 for six hours and sit for six hours out of an eight-hour workday with normal breaks. He cannot climb ladders, ropes, or 8 scaffolds; occasionally climb ramps and stairs; occasionally stoop, crouch, kneel, and crawl. He should avoid all exposure to 9 moving, dangerous machinery, unprotected heights, or driving a motor vehicle at work. He is limited to simple, routine, 10 repetitive tasks; low-stress work, meaning no production pace or conveyor belt type work; predictable work environment; can 11 tolerate occasional simple, workplace changes; and work that requires no more than brief, superficial interaction with the 12 public, co-workers and supervisors, although during any training periods there may be more frequent interactions.20 13 • Medical opinions: 14 o The opinions of Norman Staley, M.D., and Howard Platter, M.D., 15 reviewing state-agency consultants, were “generally persuasive, as 16 they are supported by explanations and somewhat consistent with the 17 overall evidence.”21 18 19 20

21 20 AR 20. 22 21 AR 23. 23 1 o The opinions of Christmas Covell, Ph.D., and Kent Reade, Ph.D., 2 reviewing state-agency consultants, were “generally persuasive, as

3 they are supported by explanations and generally consistent with the 4 overall evidence”—except that “the evidence does not support the 5 finding of a severe neurocognitive impairment.”22 6 o The opinion of examining psychologist Philip G. Barnard, Ph.D., was 7 not persuasive, as another expert had questioned the validity of 8 testing used and “the opined limitations are inconsistent with the 9 overall evidence.”23

10 o The opinion of Brian VanFossen, Ph.D., was “more persuasive than 11 the opinion [of Dr. Barnard],” as Dr. VanFossen provided a detailed 12 explanation and the opinion is “generally consistent with the overall 13 evidence,” but “it is not fully persuasive as it does not take into 14 account any social limitations.”24 15 o The opinions of treating physicians Doyle J. Miller, and Thomas

16 Westhusing, D.O., were partially persuasive, as “the opined 17 limitations are partially consistent with the overall evidence.”25 18

19 22 AR 24. 20 23 AR 24. 21 24 AR 24–25. 22 25 AR 25. 23 1 • Step four: Plaintiff has no past relevant work. 2 • Step five: considering Plaintiff’s RFC, age, education, and work history,

3 Plaintiff could perform work that existed in significant numbers in the 4 national economy, such as router, collator operator, and routing clerk.26 5 The ALJ issued a written decision finding Plaintiff had not been under a 6 disability, as defined by the Social Security Act (the “Act”), from September 3, 7 2018, through the date of the ALJ’s decision, October 16, 2020.27 The Appeals 8 denied review. Plaintiff then appealed to this Court, primarily asserting that the 9 ALJ erred by improperly evaluating certain medical evidence and opinions,

10 rejecting severe impairments as groundless at step two, failing to find Plaintiff 11 disabled at step three, and rejecting Plaintiff’s symptom reports.28 12 III. Standard of Review 13 A district court’s review of the Commissioner’s final decision is limited.29 14 The Commissioner’s decision is set aside “only if it is not supported by substantial 15 evidence or is based on legal error.”30 Substantial evidence is “more than a mere

16 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 17

18 26 AR 27. 19 27 AR 27. 20 28 See generally, ECF Nos. 17, 21. 21 29 42 U.S.C. § 405(g). 22 30 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 23 1 mind might accept as adequate to support a conclusion.”31 Because it is the role of 2 the ALJ and not the Court to weigh conflicting evidence, the Court upholds the

3 ALJ’s findings “if they are supported by inferences reasonably drawn from the 4 record.”32 The Court considers the entire record as a whole.33 5 Further, the Court may not reverse an ALJ decision due to a harmless 6 error.34 An error is harmless “where it is inconsequential to the ultimate 7 nondisability determination.”35 The party appealing the ALJ’s decision generally 8 bears the burden of establishing harm.36 9 IV. Analysis

10 Plaintiff asserts that the ALJ erred by (1) “failing to translate the limitation 11 to 1–2 step tasks opined by Dr. Reade to the RFC,” (2) “rejecting the well-supported 12

13 31 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 14 1997)). 15 32 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 33 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 17 consider the entire record as a whole, weighing both the evidence that supports and 18 the evidence that detracts from the Commissioner’s conclusion,” not simply the 19 evidence cited by the ALJ or the parties.) (cleaned up). 20 34 Molina, 674 F.3d at 1111. 21 35 Id. at 1115 (cleaned up). 22 36 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 23 1 disabling opinions of Dr. Barnard and Dr. Westhusing,” and (3) “failing to provide 2 clear and convincing reasons for making a negative credibility finding.”37

3 A. Medical Opinions: Plaintiff establishes consequential error. 4 Although an ALJ need not assign any specific evidentiary weight to the 5 medical opinions of record, the ALJ must nonetheless consider and evaluate the 6 persuasiveness of all medical opinions and prior administrative medical findings.38 7 The factors for evaluating the persuasiveness of medical opinions include, but are 8 not limited to, supportability, consistency, relationship with the claimant, and 9 specialization.39 Typically, the ALJ is not required to expressly address each

10 medical source’s specialization or relationship with the claimant.40 As 11 12

13 37 ECF No. 17 at 9, 19. 14 38 Because Plaintiff’s claims were filed on or after March 27, 2017, the newer 15 regulations governing the ALJ’s evaluation of medical opinions apply to this case. 16 See Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 17 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. See 18 also 20 C.F.R. §§ 404.1513(a), 416.913(a) (defining “medical opinion”). 19 39 20 C.F.R. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 20 40 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). When two or more medical opinions or 21 prior administrative findings “about the same issue are both equally well- 22 supported . . . and consistent with the record . . . but are not exactly the same,” the 23 1 supportability and consistency are the most important factors, however, the ALJ is 2 required to explain how both such factors were considered.41

3 1. Dr. Reade’s Medical Opinions: Plaintiff shows consequential error. 4 Plaintiff first challenges the ALJ’s treatment of the medical opinions 5 expressed by reviewing state-agency consultant Kent Reade, Ph.D.42 According to 6 Plaintiff, “[d]espite claiming to adopt [Dr. Reade’s] findings,” the ALJ’s RFC 7 assessment failed to properly account for an opinion limiting Plaintiff to 1-to-2-step 8 tasks.43 For the reasons that follow, the Court agrees. 9 a. Dr. Reade’s Opinions

10 In June 2019, Dr. Reade assessed Plaintiff’s mental RFC. As relevant here, 11 when called upon to “[e]xplain in narrative form the presence and degree of specific 12 understanding and memory capacities and/or limitations,” Dr. Reade opined that 13 Plaintiff retains the capacity to “understand and remember simple 1–3 step 14 instructions” but “would not be able to consistently understand and remember 15 instructions that are more detailed than this.”44 Yet, in explaining Plaintiff’s

17 ALJ is required to explain how “the other most persuasive factors in paragraphs 18 (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). 19 41 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). 20 42 ECF No. 17 at 9–10. 21 43 ECF No. 17 at 10. 22 44 AR 97. 23 1 “sustained concentration and persistence capacities and/or limitations,” Dr. Reade 2 wrote that Plaintiff retains the capacity to “carry out simple 1–2 step instructions”

3 but “would not be able to carry out tasks that are more detailed than this on a 4 consistent and regular basis.”45 Dr. Reade did not explain why Plaintiff would be 5 unable to “carry out” the last step of a 3-step task despite being able to “understand 6 and remember” all three steps. 7 b. The ALJ’s Persuasiveness Findings and RFC Assessment 8 As relevant here, the ALJ found “generally persuasive” Dr. Reade’s opinions 9 that Plaintiff “retained the capacity to understand and remember simple one-to-

10 three step instructions; carryout and maintain concentration, persistence, and pace 11 for up to two hours; complete a normal workweek; could interact with others on a 12 superficial and occasional basis; and would be able to adapt to normal, routine 13 changes.”46 The ALJ did not address Dr. Reade’s opinion limiting Plaintiff to 14 “simple 1–2 step instructions.” Rather, without articulating whether such tasks 15 could include instructions with one, two, or some other number of steps, the ALJ

16 went on to find Plaintiff limited to “simple, routine, repetitive tasks.”47 17

18 45 AR 97. 19 46 AR 24 (citing AR 96–97). 20 47 AR 20; see also AR 23 (“Given the claimant’s concentration and memory 21 difficulties, the evidence supports that the claimant is limited to simple, routine, 22 repetitive tasks.”). 23 1 2 c. The Vocational Expert’s Testimony

3 Presented with the limitation to simple and repetitive tasks, the vocational 4 expert testified that work existed in the national economy which Plaintiff could 5 perform, including the jobs of router, collator operator, and routing clerk.48 The 6 vocational expert explained that, due to the simple-task limitation, he had 7 excluded positions for which the Dictionary of Occupational Titles (DOT) indicates 8 a reasoning ability of Level 3 or higher is required.49 When asked by the ALJ, the 9 vocational expert further explained that simple, repetitive work included only

10 11 12 13

14 48 AR 61–62. 15 49 The DOT is a “primary source of reliable job information” for the Commissioner. 16 Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); see also 20 C.F.R. 17 § 404.1566(d)(1) (2017). “The DOT describes the requirements for each listed 18 occupation, including the necessary General Educational Development (‘GED’) 19 levels. . . .”; the GED levels, in turn, specify the associated level of reasoning 20 development, “ranging from Level 1 (which requires the least reasoning ability) to 21 Level 6 (which requires the most).” Zavalin, 778 F.3d at 846 (citing DOT, App’x C, 22 1991 WL 688702 (4th ed. 1991)). 23 1 those jobs with reasoning at Level 1 or 2.50 And, according to the DOT, each of the 2 three jobs identified by the vocational expert require reasoning Level 2.51

3 Plaintiff argues that—at Level 2—all the identified jobs require too high of a 4 reasoning level. Per Plaintiff, if Dr. Reade’s opined 1-to-2-step-task limitation is 5 incorporated into the RFC, he is limited to work that involves reasoning no higher 6 than Level 1.52 7 d. RFC Analysis and Reasoning Levels 8 “[T]he ALJ is responsible for translating and incorporating clinical findings 9 into a succinct RFC.”53 When incorporating a credited medical opinion, the ALJ’s

10 findings need only be consistent with the opined limitations, not identical to 11 them.54 However, while the ALJ is not bound to adopt such a medical opinion 12 verbatim, the ALJ is nevertheless required to explain why any conflicting opinions 13 were not adopted; it is error for an ALJ to simultaneously claim to incorporate a 14 15

17 50 AR 63–64. 18 51 See DOT 222.587-038, 1991 WL 672123 (router); DOT 208.685-010, 1991 WL 19 671753 (collator operator); DOT 222.687-022, 1991 WL 672133 (routing clerk). 20 52 ECF No. 17 at 10. 21 53 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). 22 54 See Turner v. Comm’r of Soc. Sec., 613 F.3d 1271, 1223 (9th Cir. 2010). 23 1 medical opinion and yet, without explanation, omit relevant limitations set forth in 2 that medical opinion.55

3 On the one hand, a limitation to work involving only “simple, routine, 4 repetitive tasks” is consistent with the ability to perform jobs requiring Level 2 5 reasoning.56 On the other hand, Dr. Reade did not just limit Plaintiff to “simple, 6 routine, repetitive tasks”; he limited Plaintiff to tasks involving no more than one 7 or two steps. This is a meaningful difference. In the Ninth Circuit, a limitation to 8 1-to-2-step tasks is more restrictive than a limitation to “simple” or “repetitive” 9 tasks.57

10 e. Consequential Error 11 Because the ALJ found Dr. Reade’s opinions to be “generally persuasive,” the 12 ALJ was required to either include the 1-to-2-step limitation or to explain why it 13

14 55 See SSR 96-8p, 1996 WL 374184 at *7 (Jul. 2, 1996); Robbins v. Soc. Sec. Admin., 15 466 F.3d 880, 883 (9th Cir. 2006) (requiring the ALJ to account for all relevant 16 evidence in assessing the RFC). 17 56 See, e.g., Abrew v. Astrue, 303 Fed. App’x. 567, 569–70 (9th Cir. 2008) 18 (unpublished) (finding a limitation to simple tasks consistent with jobs requiring 19 Level 2 reasoning); Lara v. Astrue, 305 Fed. App’x. 324, 326 (9th Cir. 2008) 20 (unpublished) (same). 21 57 See Rounds, 807 F.3d at 1002–03 (concluding that jobs requiring Level 2 22 reasoning are inconsistent with a limitation to 1- or 2-step instructions). 23 1 was omitted from the RFC.58 The ALJ erred by not doing so. Even assuming that 2 other evidence of record could be reasonably interpreted to support exclusion of

3 that limitation, the Court is constrained to review only the reasoning provided by 4 the ALJ.59 Here, the Court simply cannot discern whether the ALJ, in crafting 5 Plaintiff’s RFC, intended to incorporate or reject Dr. Reade’s assigned 1-to-2-step- 6 task limitation. 7 Further, the Court cannot find it harmless.60 As mentioned, every 8 occupation identified by the vocational expert and accepted by the ALJ requires 9 Level 2 reasoning. And the ALJ did not inquire with the vocational expert about

10 whether any of the three identified occupations could still be performed if further 11 limited to only 1-to-2-step tasks.61 12 2. Dr. Barnard’s Medical Opinions: Plaintiff does not establish 13 consequential error. 14 Plaintiff takes issue with the ALJ’s persuasiveness analysis regarding the 15 medical opinions of examining psychologist Philip G. Barnard, Ph.D. “Dr. Barnard

16 administered comprehensive testing establishing borderline to extremely low 17

18 58 See SSR 96-8p; Robbins, 466 F.3d at 883. 19 59 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). 20 60 Molina, 674 F.3d at 1115. 21 61 See Rounds, 807 F.3d at 1002–03; see also SSR 00-4p, 2000 WL 1898704; 22 Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). 23 1 memory scores, with additional deficits in orientation, concentration, abstract 2 thought, insight, and judgment[.]”62 Thus, Plaintiff says, the ALJ erred by

3 rejecting Dr. Barnard’s disabling assessment.63 4 a. Dr. Barnard’s Report 5 In mid-September 2018, Philip G. Barnard, Ph.D., a board-certified 6 psychologist, examined Plaintiff and authored a psychological/psychiatric- 7 evaluation report based on his findings.64 Dr. Barnard was not provided with any 8 prior records to review, but he administered several tests. On the Wechsler 9 Memory Scale-IV (WMS), Plaintiff tested mostly in the “Extremely Low” range,

10 with him scoring at or below the bottom 1% in four of the five indices.65 However, 11 on the Wechsler Adult Intelligence Scale (WAIS-IV), Plaintiff tested in the “Low 12 Average” and “Average” ranges, with those indices ranging in percentile rank from 13 10% to 30%.66 14 Dr. Barnard also administered a Personality Assessment Inventory (PAI). 15 In the notes on Plaintiff’s mood, Dr. Barnard wrote, “On PAI, there are subtle

16 indications that [Plaintiff] attempted to portray himself in a somewhat negative 17

18 62 ECF No. 17 at 16. 19 63 ECF No. 17 at 10–14. 20 64 AR 407–11. 21 65 See AR 410. 22 66 See AR 411. 23 1 manner. However, this is not to a degree that would invalidate the protocol.”67 As 2 to the Test of Memory Malingering (TOMM), Dr. Barnard stated that Plaintiff

3 “obtained a Raw Score of 46 on Trial 1 and a Raw Score of 50 on Trial 2, within 4 normal limits.”68 5 In addition to Attention Deficit Hyperactivity Disorder (ADHD), Persistent 6 Depressive Disorder, and Bipolar Disorder, Dr. Barnard diagnosed Plaintiff with 7 “Mild Neurocognitive Impairment (Due to Seizures).”69 Dr. Barnard opined that 8 Plaintiff’s memory and concentration were not within normal limits, saying that 9 his “problems with attention and concentration would affect his ability to work on a

10 daily basis to a moderate extent.”70 On the checklist for “Basic Work Activity,” 11 Dr. Barnard opined that Plaintiff’s psychological symptoms cause marked 12 limitations in his ability to perform within a schedule, maintain regular 13 14

15 67 AR 410. See also McCredie et al., Personality Assessment Inventory (PAI) for 16 assessing disordered thought and perception, American Psychological Association 17 (2021) https://doi.org/10.1037/0000245-006 (“The Personality Assessment Inventory 18 (PAI) is a multiscale, self-administered questionnaire designed to provide a 19 comprehensive assessment of client personality and psychopathology.”). 20 68 AR 411. 21 69 AR 409. 22 70 AR 411. 23 1 attendance, complete a normal workday and workweek, act appropriately in a work 2 setting, and communicate and perform effectively in a work setting.71

3 b. Dr. VanFossen’s Review of Dr. Barnard’s Report 4 In late September 2018, a state agency referred Dr. Barnard’s report to 5 consulting psychologist Brian VanFossen, Ph.D., to assess Dr. Barnard’s findings.72 6 Upon review, Dr. VanFossen rejected the medical opinions expressed in 7 Dr. Barnard’s report. In finding that Dr. Barnard’s diagnoses and opinions 8 regarding severity and functional limitations were not supported by the medical 9 evidence, Dr. VanFossen provided—in its entirety—the following rationale:

10 Ongoing neurological concerns were reported, in the context of a past resolved diagnosis of ADHD and depression. The applicant reported 11 knee problems as the primary barrier to employment. PAI testing was completed, but the scores not reported; over-reporting was noted. 12 WAIS testing was within the low average range. WMS testing does not appear valid, with scores that are very atypical for even dementia 13 patients (<0.lst percentile), despite the wealth of information obtained from the claimant and working memory in the average range on the 14 WAIS. The diagnoses were not supported by the DSM criteria and there was 15 no mention of functional impairment.73 There is no mention of functional impairment due to a mental health 16 diagnosis that would prohibit work tasks. The claimant appears capable of simple labor tasks from a strictly mental health standpoint. 17 The ratings are best reflected in the mild range across the table.74

19 71 AR 409. 20 72 AR 697–98. 21 73 AR 697. 22 74 AR 697 (internal checkmark prompt omitted). 23 1 c. Arguments and Analysis 2 Here, the ALJ did not err in finding Dr. Barnard’s opinions not persuasive.

3 Substantial evidence supports the ALJ’s finding that Plaintiff’s extremely low 4 memory scores on the WMS appeared inconsistent with the results from several 5 other tests also administered by Dr. Barnard.75 Further, “[w]hile supported by an 6 exam, the validity of that testing was questioned.”76 As the ALJ pointed out, 7 Dr. VanFossen opined that the “WMS testing does not appear valid,” explaining 8 that Plaintiff’s scores are “very atypical for even dementia patients,” and they are 9 inconsistent with both Plaintiff’s average working-memory test results and “the

10 wealth of information” Dr. Barnard obtained from him.77 11 Importantly, Dr. Barnard offered no explanation as to how Plaintiff can 12 generally function at what is seemingly a level far greater than would be indicated 13 by his WMS scores, or why Plaintiff scored so much higher on other memory tests 14 administered that same day. Contrary to Plaintiff’s arguments otherwise, 15 Dr. VanFossen and the ALJ did not engage in “unsupported speculation” by

17 75 AR 24 (“Testing revealed a full-scale IQ score of 86, which was in the low-average 18 range. He was able to recall three of three objects after a delay. . . . He was also 19 able to repeat digits forwards and backwards.” (internal citations omitted.)). 20 76 AR 24. 21 77 See AR 697 (Dr. VanFossen’s reviewing report); AR 24 (ALJ citing 22 Dr. VanFossen’s report). 23 1 citing—with specificity—what appear to be significant unresolved inconsistencies 2 in the evidence underlying Dr. Barnard’s opinions.78 Rather, by doing so, they

3 provided legitimate reasons to doubt the reliability of Plaintiff’s WMS test results. 4 Thus, it was reasonable for the ALJ to find Dr. Barnard’s opinions were not well 5 supported. 6 Because they necessarily hinge on the validity of the ALJ’s persuasiveness 7 findings, the Court need not separately address Plaintiff’s arguments that the ALJ 8 erred at other steps of the sequential analysis by “failing to account for [Plaintiff]’s 9 neurocognitive impairment and objective testing scores.”79 Aside from the asserted

10 11 12

13 78 See ECF No. 17 at 17. Notably, Dr. VanFossen’s observation that Dr. Barnard 14 had noted “over-reporting” appears largely—if not wholly—unrelated to the 15 reasons provided for rejecting Plaintiff’s WMS results. It is in a separate 16 paragraph dedicated to discussing the memory-test scores in which Dr. VanFossen 17 questions the validity of the WMS testing and provides his related reasoning. See 18 AR 697. Moreover, the ALJ’s decision in no way suggests he questioned the WMS 19 results based on suspicions of overreporting or malingering. As such, to the extent 20 Plaintiff suggests that his PAI and TOMM scores undercut the ALJ’s 21 persuasiveness analysis, such arguments are misplaced. See ECF No. 17 at 12. 22 79 See ECF No. 17 at 9. 23 1 1-to-2-step-task additional limitation already discussed, Plaintiff does not identify 2 any other memory-related limitations not included in the RFC.80

3 3. Dr. Westhusing’s Medical Opinions: Plaintiff does not establish 4 consequential error. 5 In June 2020, treating physician Thomas Westhusing, D.O., filled out a 6 medical-opinion form provided to him by Plaintiff’s counsel.81 In it, Dr. 7 Westhusing opined that Plaintiff would miss, on average, one workday per month 8 due to his impairments. Dr. Westhusing explained this was because Plaintiff’s 9 seizures occur at that same frequency and because Plaintiff “has difficulty with

10 focus and social interactions.”82 Dr. Westhusing also indicated that the cumulative 11 effect of Plaintiff’s limitations would likely cause him to be off-task and 12 unproductive for more than 30% of a 40-hour workweek.83 13 a. The ALJ’s Persuasiveness Analysis 14 In rejecting these opinions, the ALJ provided the following analysis: 15 While supported by an explanation, Dr. Westhusing noted that the opinion was not based on objective evidence, but was based on 16 subjective comments from the claimant and his grandma (8F). Further, the opined limitations are partially consistent with the 17 overall evidence. Here, treatment notes detail the initial seizure in April 2016 and one breakthrough seizure [in] November 2018. Of 18

19 80 See Molina, 674 F.3d at 1115. 20 81 AR 776–78. 21 82 AR 77. 22 83 AR 777. 23 1 note, the provider noted that there was medication noncompliance at that time. At additional exams, no seizures were reported with 2 consistent medication compliance. . . . [T]he time[-off-]task limitations are no[t] supported by the objective exam findings and overall 3 evidence.84

4 b. Arguments and Analysis 5 In challenging the ALJ’s analysis, Plaintiff asserts that the ALJ’s first 6 statement is “unequivocally false” because “Dr. Westhusing neither mentioned the 7 claimant’s grandmother nor his own subjective complaints anywhere in 8 Exhibit 8F.”85 However, while Exhibit 8F does not contain such a statement,86 9 Dr. Westhusing did include this reservation—and others—in his corresponding 10 treatment note, explaining, 11 No physical exam was performed and responses were predominantly subjective based on patient and grandmother's reports[.] [I]f further 12 details concerning his mental health issues are desired I would question directly both Dr. Pe and[,] concerning his seizure disorder, 13 Dr. Raghunath. . . . . 14 The form will be completed in a subjective way as I do not have any objective assessment available to determine objective responses to the 15 questions provided. Patient is seeing Dr. Pe . . . for history of ADHD as well as bipolar. . . . Patient also sees neurology, Dr. Raghunath, for 16 complex partial seizures that then can evolve into generalized seizure. . . . Grandmother reports he typically will have a seizure 17 about once a month.87

19 84 AR 25 (cleaned up, with one internal citation intentionally included). 20 85 ECF No. 17 at 15. 21 86 See ECF No. 776–78. 22 87 AR 852–53. 23 1 Especially given the above, the ALJ did not err in finding unpersuasive 2 Dr. Westhusing’s opinions regarding Plaintiff’s likely rate of absenteeism and time

3 off task. An ALJ may properly discount a treating provider’s opinion that is based 4 on subjective self-reports which the ALJ reasonably found not credible.88 And 5 Dr. Westhusing not only cautioned that his opinions were based on subjective self- 6 reports, he also suggested that other doctors were better suited to addressing the 7 impairments and symptoms at issue. It was therefore reasonable for the ALJ to 8 find Dr. Westhusing’s opinions were not supported by reliable evidence. 9 B. Symptom Reports: the ALJ is instructed on remand to reexamine

10 Plaintiff’s reports relating to seizure and mental-health symptoms. 11 Plaintiff does not articulate what specific testimony he believes the ALJ 12 improperly rejected or how such testimony would alter the ultimate outcome if 13 adopted.89 However, in challenging the ALJ’s overall decision, Plaintiff asserts 14 that the RFC should have included additional limitations related to absenteeism, 15

16 88 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 17 89 The Court ordinarily will not consider matters that are not “specifically and 18 distinctly argued” in a party’s opening brief. See Carmickle v. Comm'r of Soc. Sec. 19 Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); see also Molina, 674 F.3d at 1115; 20 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 930 (9th Cir. 2003) (a party’s 21 argument must be supported by “the reasons for them, with citations to the 22 authorities and parts of the record”). 23 1 off-task time, and his need to frequently lie down.90 And Plaintiff’s testimony 2 regarding his seizure and mental-health symptoms arguably support such

3 additional limitations.91 Further, as explained above, this matter is already 4 subject to remand. Thus, to provide further guidance on remand, the Court 5 addresses the ALJ’s evaluation of Plaintiff’s seizure-related symptom reports.92 6 1. Plaintiff’s Seizure-Related Symptom Reports 7 Plaintiff reported substantial limitations related to seizures. At the late- 8 July 2020 hearing, Plaintiff testified to suffering from seven grand mal seizures in 9 that year alone, with his last grand mal seizure occurring in mid-June 2020.93 He

10 estimated he averages one grand mal seizure per month. However, these seizures 11

12 90 ECF No. 17 at 21. 13 91 In contrast, nothing in Plaintiff’s testimony can be reasonably interpreted as 14 supporting the final additional limitation he asserts. Plaintiff testified very briefly 15 to sometimes getting angry and yelling at his family, but he did not describe 16 anything approximating “ongoing disrespectful/defiant behavior” or otherwise give 17 any suggestion that such behavior would extend to the workplace. See AR 55–56. 18 Cf. also, e.g., AR 42–46, 91. 19 92 See ECF No. 17 at 21. The bulk of Plaintiff’s relevant hearing testimony, and his 20 arguments on appeal, relate to his seizures. The Court therefore focuses its 21 analysis on Plaintiff’s seizure-related symptom reports. 22 93 AR 72. 23 1 usually occur at night when he is asleep, with him awakening with no memory of 2 the seizure but often with a “really horrible headache” and temporary light

3 sensitivity.94 When this occurs, Plaintiff testified, he will rest in bed for a day or 4 two until his head is starting to feel better.95 5 In addition to grand mal seizures, Plaintiff reported experiencing “mini 6 seizures” at a frequency of “at least two to three times a week.”96 Plaintiff 7 described these mini seizures as starting with a “déjà vu feeling” and causing him 8 to feel dizzy, light-headed, nauseated, and “like [he is] going to have a grand mal 9 seizure.”97 He further explained that the mini seizures typically make his mind “go

10 blank,” cause him to be confused about where he is, and substantially reduce his 11 ability to focus.98 Plaintiff testified that he must immediately lie down for a few 12 minutes to ensure that a mini seizure does not turn into a grand mal seizure; he 13 also said he needs to “lay down and just relax” until he gets his memory and mind 14 straight.99 He described these rest periods as lasting usually two or three hours 15

17 94 AR 49–50. 18 95 AR 50. 19 96 AR 42, 46–48, 57. 20 97 AR 47–48, 57. 21 98 AR 46. 22 99 AR 46, 54, 57. 23 1 but said the symptoms could sometimes repeatedly return for up to two or three 2 days.”100

3 2. The ALJ’s Symptom-Report Analysis 4 The ALJ found Plaintiff’s medically determinable impairments “could 5 reasonably be expected to cause the alleged symptoms” but that Plaintiff’s 6 statements “concerning the intensity, persistence and limiting effects of these 7 symptoms are not entirely consistent with the medical evidence and other evidence 8 in the record.”101 As to the seizure-related symptom reports, the ALJ explained as 9 follows:

10 [O]nce the claimant began treatment, he reported that he was doing well. In 2019, treatment notes detail the initial seizure in April 2016 11 and one breakthrough seizure [in] November 2018. Of note, the provider noted that there was medication non-compliance at that 12 time. The claimant’s grandmother reported that the claimant had brief seizures, which seem like déjà vu, and last for a minute and a 13 half. She reported that the claimant has one to two episodes a month. Still, at a [April 2020] follow-up exam, the claimant denied having any 14 convulsive seizures and only a couple of déjà vu events. At additional exams, no seizures were reported with consistent medication 15 compliance. . . . [T]he alleged frequency of seven seizures in 2020 and two-to-three mini seizures a week is not consistent with the reports in 16 the treatment records. Further, [in June 2020,] the claimant’s grandmother reported that he has only one seizure a month; however, 17 she noted that the claimant did not have any convulsive seizures in a [June 2019] log of activity. He also had intact cranial nerve testing.102 18 19

20 100 AR 42, 46–48 21 101 AR 21. 22 102 AR 21–22 (cleaned up, with dates inserted for context). 23 1 3. The Applicable Standard and Lack of Evidence of Malingering 2 Absent affirmative evidence of malingering, to reject a claimant’s symptom

3 reports, the ALJ must provide “specific, clear and convincing” reasons supported by 4 substantial evidence.103 Here, as mentioned, Dr. Barnard noted in his 5 psychological examination of Plaintiff that there were “subtle indications” that 6 Plaintiff had “attempted to portray himself in a somewhat negative manner.”104 7 But Dr. Barnard also said that this was “not to a degree that would invalidate the 8 protocol,” and he noted that Plaintiff’s Test of Memory Malingering (TOMM) scores 9 were normal.105 Perhaps more importantly, nothing in the ALJ’s decision suggests

10 that he discounted Plaintiff’s symptom reports based on suspicions of over- 11 reporting or malingering.106 Accordingly, the “specific, clear and convincing” 12 standard applies.107 13 14

15 103 See 20 C.F.R. § 416.929(c); SSR 16-3p, 2016 WL 1119029, at *7; Ghanim, 763 16 F.3d at 1163. 17 104 AR 410. 18 105 AR 410–11. 19 106 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (review is constrained 20 to the reasons asserted by the ALJ). 21 107 See 20 C.F.R. § 416.929(c); SSR 16-3p, 2016 WL 1119029, at *7; Ghanim, 763 22 F.3d at 1163. 23 1 4. Lack of Meaningful Explanations 2 Portions of the ALJ’s analysis regarding Plaintiff’s symptom reports lack

3 meaningful explanation. For example, the ALJ did not explain how “intact cranial 4 nerve testing” might undermine any of Plaintiff’s symptom testimony.108 And, as 5 to Plaintiff’s mental-health symptoms, the ALJ cited to only one treatment note— 6 and offered no explanation as to whether it accurately represented the longitudinal 7 record—when stating, “A provider characterized the claimant’s mental health 8 symptoms as mild to moderate in severity.”109 The same is true for the ALJ’s 9 statement that Plaintiff “reported feeling happy with better communication with

10 his relatives.”110 11 On remand, if the ALJ intends to rely on these reasons for discounting 12 Plaintiff’s symptom reports, the ALJ must more meaningfully explain how these 13 medical findings and notations provide a basis to discount Plaintiff’s symptom 14 reports. 15

17 108 AR 22. “Cranial nerves have motor, sensory and autonomic functions.” Mahsa 18 Shahrokhi et al., Neurologic Exam (last updated Jan. 2022) 19 https://www.ncbi.nlm.nih.gov/books/NBK557589/. 20 109 AR 23. See Ghanim, 763 F.3d at 1164 (“[T]he treatment records must be viewed 21 in light of the overall diagnostic record.”). 22 110 AR 23. 23 1 5. Lack of Findings Regarding Seizure Symptoms and Frequency 2 The ALJ relied upon prior treatment notes to reject Plaintiff’s asserted

3 seizure frequency of one grand mal seizure per month and mini seizures “at least 4 two to three times a week.” Even if such testimony is set aside, however, the 5 treatment records consistently indicate that Plaintiff experiences, on average, at 6 least one mini seizure per month.111 Yet, the ALJ provided no findings regarding 7 8 9

10 11

12 111 See, e.g., AR 396 (March 2017: mini seizures “happening once a month or once a 13 week per patient, though family states it is happening more frequently, several 14 times weekly”); AR 408 (Sept. 2018: “reported that he last had a seizure in 2016); 15 AR 787 (June 27, 2019: “Per log brought by grandmother, he has not had any 16 convulsive seizures. However, he has had brief seizures which seems like a déjà vu 17 feeling lasting about a minute to 1.5-minutes. Roughly 1–2 episodes a month.” 18 “Last breakthrough seizure on 11/24/18.”); AR 845 (April 2020: “No convulsive 19 seizures since last visit in June 2019. Reports déjà vu spells and possibly absence 20 seizures 1–2 episodes a month.”); AR 853–54 (June 2020: noting, “Grandmother 21 reports he typically will have a seizure about once a month,” but also noting, “last 22 grand mal 1/2019 / déjà vu seizure July or Aug. 2019” (capitalizations altered)). 23 1 the true frequency of Plaintiff’s seizures. Nor did the ALJ address Plaintiff’s mini- 2 seizure symptoms or their impact—or lack thereof—on Plaintiff’s RFC.112

3 ALJs are instructed to “consider all of the evidence in an individual’s record” 4 to “determine how symptoms limit ability to perform work-related activities.”113 5 The Court therefore instructs the ALJ on remand to make findings and provide 6 explanations regarding the true frequencies of Plaintiff’s grand mal seizures and 7 mini seizures, as well as the symptoms associated with one of Plaintiff’s typical 8 seizure events. If the ALJ again discounts Plaintiff’s associated symptom reports, 9 the ALJ shall provide clear and convincing reasoning supported by citations to

10 substantial evidence.114 To the extent it would assist in the ALJ’s analysis, the 11 ALJ is encouraged to receive additional evidence on the topic of Plaintiff’s seizures, 12 including from one or more experts on the subject. 13 V. Conclusion 14 As set forth above, Plaintiff establishes that the ALJ consequentially erred. 15 Although Plaintiff requests an immediate award of benefits, the evidence of record

16 does not clearly establish that he is entitled to benefits; instead, “there are 17

18 112 An ALJ must identify what symptoms are being discounted and what evidence 19 undermines these symptoms. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 20 2014); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 21 113 SSR 16-3p, 2016 WL 1119029, at *2. 22 114 See Ghanim, 763 F.3d at 1163; Lingenfelter, 504 F.3d at 1036. 23 1 outstanding issues that must be resolved before a determination can be made[.]”115 2 Remand for further administrative proceedings is therefore necessary.

3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is 5 GRANTED. 6 2. The Commissioner’s Motion for Summary Judgment, ECF No. 20, is 7 DENIED. 8 3. The Court REVERSES the decision of the ALJ and REMANDS this 9 matter to the Commissioner of Social Security for further proceedings

10 pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the 11 Commissioner is to instruct the ALJ as follows: 12 A. Reexamine Dr. Reade’s medical opinions. If the ALJ again 13 finds Dr. Reade’s medical opinions persuasive, the ALJ shall 14 specifically address the opinion limiting Plaintiff to tasks 15 involving only 1-to-2-step directions, explaining either how the

16 limitation was incorporated into the RFC or why it was 17 rejected. 18 // 19 / 20

21 115 See Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017); Garrison, 759 F.3d at 22 1020; Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 23 1 B. Reexamine Plaintiff’s reports regarding seizure symptoms and 2 mental-health symptoms. If the ALJ again discounts such

3 symptom reports, the ALJ shall identify which statements are 4 being rejected and provide clear and convincing reasoning— 5 supported by citations to substantial evidence—for doing so. 6 C. Provide express, specific analysis and findings regarding 7 Plaintiff’s grand mal seizures and mini seizures, specifically 8 including for each type of seizure the average frequency, the 9 associated symptoms, and how those symptoms were considered

10 in assessing Plaintiff’s RFC. 11 D. Reassess Plaintiff’s RFC and conduct steps four and five anew. 12 The ALJ shall describe in detail how any new evidence and/or 13 findings were considered in assessing Plaintiff’s RFC. 14 E. If helpful, conduct another hearing. The Court finds it likely 15 that additional evidence will be required to resolve the

16 outstanding issues in this case. Thus, the ALJ is encouraged to 17 conduct such additional hearings and receive such additional 18 evidence—including receiving additional testimony from a 19 vocational expert and/or other experts—as are necessary to 20 meaningfully address the issues identified above. 21 // 22 /

23 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 5. The case shall be CLOSED. IT IS SO ORDERED. The Clerk’s Office is directed to file this order and provide copies to all counsel. DATED this 8** day of September 2022. Baad I lew EDWARD F. SHEA Senior United States District Judge

ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 33