1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DONNA J., Case No. 3:18-cv-05296-TLF 7 Plaintiff, v. ORDER ON PLAINTIFF’S MOTION 8 TO ALTER OR AMEND THE COMMISSIONER OF SOCIAL JUDGMENT PURSUANT TO 9 SECURITY, FEDERAL RULE OF CIVIL PROCEDURE 59(E) 10 Defendant. 11 On September 5, 2019, this Court entered judgment for the Defendant, finding 12 that Defendant’s decision to deny Plaintiff’s application for disability insurance benefits 13 was supported by substantial evidence. See Dkt. 20, 21. Presently before the Court is 14 Plaintiff’s Motion to Alter or Amend Judgment pursuant to Federal Rule of Civil 15 Procedure 59(e) (“Motion”). Dkt. 22. 16 The Court may alter or amend a judgment under Rule 59(e) where the Court has 17 committed clear error. See Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Rule 18 59(e) provides an “extraordinary remedy, to be used sparingly in the interests of finality 19 and conservation of judicial resources.” Id. (citation and internal quotation marks 20 omitted). Plaintiff argues the Court should alter the judgment and reverse Defendant’s 21 decision to deny benefits because the Court’s decision is based on a clear error of law. 22 Dkt. 22, pp. 1-2. 23
24 1 After hearing oral argument, on October 15, 2019 this Court issued an order 2 withdrawing its initial order and judgment and directing the parties to submit additional 3 briefing on the question of whether evidence of statements, opinions, and assessments 4 from Stephen Langer, Ph.D. and Farren Ray Akins, Ph.D., J.D. was properly considered
5 by the ALJ in the decision finding that Plaintiff was not disabled. Dkt. 27, p. 1. The 6 parties have consented to have this matter heard by the undersigned Magistrate Judge. 7 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. This matter 8 has been fully briefed. Dkt. 30, 32, 33. 9 For the reasons set forth below, Plaintiff’s Motion to Alter or Amend Judgment is 10 GRANTED and this case is remanded for an award of benefits as to the period between 11 February 10, 2006 and August 31, 2011. 12 I. Whether the ALJ erred in evaluating evidence from Dr. Langer and Dr. Akins 13 In assessing an acceptable medical source – such as a medical doctor – the ALJ 14 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of
15 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 17 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 18 contradicted, the opinion can be rejected “for specific and legitimate reasons that are 19 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing 20 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 21 499, 502 (9th Cir. 1983)). 22
24 1 A. Dr. Langer 2 Dr. Langer evaluated Plaintiff on March 19, 2007. AR 1073. And Dr. Langer 3 continued to have a treating relationship with Plaintiff including 14 appointments; his last 4 session with her was on October 15, 2008. AR 914-16, 937-39, 976-82, 984, 1070-82,
5 2195. 6 On January 2, 2008, Dr. Langer opined that Plaintiff would have a range of 7 moderate and marked work-related limitations stemming from her mental impairments. 8 AR 917-26. 9 On September 3, 2008, Dr. Langer assessed Plaintiff as having marked 10 limitations in the ability to remember locations and work-like procedures; sustaining 11 ordinary routine without supervision; working in coordination with or proximity to others 12 without being distracted by them; completing a normal workweek without interruptions; 13 and traveling to unfamiliar places or using public transportation. AR 954. Dr. Langer 14 stated that Plaintiff would have moderate limitations in interacting appropriately with the
15 general public; accepting instructions and responding appropriately to criticism from 16 supervisors; understanding, remembering, and carrying out detailed instructions; and 17 maintaining attention and concentration for extended periods. Id. 18 Dr. Langer stated that Plaintiff’s psychiatric condition exacerbated her perception 19 of pain, and that she was not capable of performing even low stress work. Id. Dr. Langer 20 opined that Plaintiff would likely miss more than 3 days of work per month due to her 21 impairments, that her symptoms were ongoing and dated back to July 11, 2005, and 22 were expected to last at least 12 months. Id. In October 2008, Dr. Langer issued a 23
24 1 similar opinion, this time stating that Plaintiff was incapable of maintaining any type of 2 competitive employment. AR 984. 3 In discounting Dr. Langer’s opinion, the ALJ acknowledged that Dr. Langer is a 4 treating source who is normally entitled to deference. AR 1388. See 20 C.F.R. §
5 404.1527(b)(2) (“Generally, we give more weight to medical opinions from your treating 6 sources, since these sources are likely to be the medical professionals most able to 7 provide a detailed, longitudinal picture of your medical impairment(s) and may bring a 8 unique perspective to the medical evidence that cannot be obtained from the objective 9 medical findings alone or from reports of individual examinations, such as consultative 10 examinations or brief hospitalizations.”); see also Turner v. Comm’r of Soc. Sec. Admin., 11 613 F.3d 1217, 1222 (9th Cir. 2010) (noting that SSA generally gives more weight to the 12 opinion of a treating source). 13 However, the ALJ assigned “limited weight” to Dr. Langer’s opinions, reasoning 14 that: (1) Dr. Langer relied on Plaintiff’s self-reports, without providing clinical findings or
15 independent observations to support his opinion, except in conclusory letters and forms; 16 (2) Dr. Langer’s opinions were internally inconsistent; (3) Dr. Langer did not sufficiently 17 explain his opinion; (4) Dr. Langer did not define what he meant by “low stress” work; 18 and (5) Dr. Langer’s opinions were inconsistent with Plaintiff’s own statements to other 19 physicians. AR 1388-90. 20 With respect to the ALJ’s first reason, an ALJ may reject a physician’s opinion “if 21 it is based ‘to a large extent’ on a claimant’s self-reports that have been properly 22 discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 23 (quoting Morgan v. Comm’r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). This
24 1 situation is distinguishable from one in which the doctor provides her own observations 2 in support of her assessments and opinions. See Ryan v. Comm’r of Soc. Sec. Admin., 3 528 F.3d 1194, 1199-1200 (9th Cir. 2008). “[W]hen an opinion is not more heavily 4 based on a patient’s self-reports than on clinical observations, there is no evidentiary
5 basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) 6 (citing Ryan, 528 F.3d at 1199-1200). 7 Here, Dr. Langer utilized objective measures such as clinical interviews and 8 relied on his own observations in forming his opinion, and there is no evidence that he 9 relied largely upon Plaintiff’s self-reports. AR 914-16, 937-39, 976-82, 984, 1070-82, 10 2195. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (a psychiatrist’s clinical 11 interview and mental status examinations are “objective measures” which “cannot be 12 discounted as a self-report” and noting that psychological diagnoses will always depend 13 partly on the patient's self-report, as well as on the clinician's observations of the 14 patient) (internal citations omitted).
15 As for the ALJ’s second reason, an internal inconsistency can serve as a specific 16 and legitimate reason for discounting a physician’s opinion. See Morgan v. Comm'r of 17 Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999); see also Rollins v. Massanari, 261 18 F.3d 853, 856 (9th Cir. 2001) (upholding ALJ’s rejection of an internally inconsistent 19 medical opinion). 20 In finding Dr. Langer’s opinions internally inconsistent, the ALJ noted that in his 21 January 2008 opinion, Dr. Langer assessed Plaintiff as having marked limitations in 22 remembering locations and work-like procedures, but no limitations in the ability to 23 understand, remember, and carry our 1 or 2 step instructions, and only moderate
24 1 limitation in the ability to understand, remember, and carry out detailed instructions. AR 2 1388-89. 3 The ALJ reasoned that if an individual were unable to remember locations and 4 work-like procedures, she would have more than moderate limitation in understanding,
5 remembering, and carrying out detailed instructions and would have some degree of 6 limitation in performing 1 and 2 step instructions. AR 1388-89. 7 The ALJ’s decision is not supported by substantial evidence, because as a 8 factual matter there is not an inconsistency, as discussed above, in Dr. Langer’s 9 opinion. The form completed by Dr. Langer contains the heading “Understanding and 10 Memory”, which contains the three limitation categories discussed above. AR 920. The 11 first category deals with memory, while the latter two deal with understanding and 12 cognition, and ask for an opinion on different aspects of Plaintiff’s functional ability. 13 Further, Dr. Langer opinion is consistent with his treatment notes, in which he noted that 14 Plaintiff had a poor memory, and that she missed several appointments with him after
15 she forgot about them. AR 984, 1071. Dr. Langer’s opinion is also consistent with the 16 record, which indicates that Plaintiff required some assistance from co-workers to 17 complete basic work-related mental tasks. AR 1793. 18 With respect to the ALJ’s third reason, a finding that a physician has not 19 sufficiently explained his or her opinion can serve as a specific and legitimate reason for 20 discounting that opinion. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source 21 presents relevant evidence to support a medical opinion, particularly medical signs and 22 laboratory findings, the more weight we will give that medical opinion. The better an 23 explanation a source provides for a medical opinion, the more weight we will give that
24 1 medical opinion.”); see also Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1196 2 (9th Cir. 2004) (“[A]n ALJ may discredit treating physicians’ opinions that are 3 conclusory, brief, and unsupported by the record as a whole or by objective medical 4 findings.”)
5 First, Dr. Langer completed a check box form in assessing Plaintiff’s limitations, 6 yet the record also shows that he based this opinion on his extensive treating 7 relationship with Plaintiff. See Garrison v. Colvin, 795 F.3d 995, 1008 (9th Cir. 2014) 8 (Check box forms completed by physicians that have significant experience with a 9 patient and are based on numerous records are entitled to weight that unsupported and 10 unexplained check box forms do not merit). Second, Dr. Langer provided more than one 11 explanation for his opinion, once in September 2008 and again in October 2008, and 12 specifically stated that his opinion was based on his consistent treatment of Plaintiff 13 from March 2007 to October 2008. AR 954, 984. In both cases, Dr. Langer explained in 14 detail the Plaintiff’s diagnoses, the clinical findings to support his diagnoses, his
15 assessment of Plaintiff’s work-related mental limitations based on these impairments, 16 and his opinion that Plaintiff’s impairments had been disabling since July 2005. Id. 17 Third, the ALJ reasoned that Dr. Langer did not explain his opinion that Plaintiff 18 had marked limitations in sustaining an ordinary routine without supervision; completing 19 a normal work week without interruptions from psychologically based symptoms; and 20 performing work at a consistent pace. AR 1389. The ALJ reasoned that Dr. Langer’s 21 opinion concerning sustaining an ordinary routine without supervision was inconsistent 22 with the record, which indicated that Plaintiff was able to perform several routine 23 activities of daily living without supervision. Id; see also See Morgan v. Comm'r Soc.
24 1 Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999) (an ALJ may discredit a claimant's 2 testimony when the claimant reports participation in everyday activities indicating 3 capacities that are transferable to a work setting). As discussed above, Dr. Langer 4 explained in detail the reasons why he assessed Plaintiff as having marked mental
5 limitations. 6 Further, none of the basic activities of daily living the ALJ cites as being 7 inconsistent with Dr. Langer’s opinion – caring for her son, preparing meals, and 8 performing basic household chores – are transferrable to a work setting in a way that 9 would detract from Plaintiff’s credibility or cast doubt on Dr. Langer’s opinion. AR 1389; 10 see Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001) (“This court has repeatedly 11 asserted that the mere fact that a plaintiff has carried on certain daily activities, such as 12 grocery shopping, driving a car, or limited walking for exercise, does not in any way 13 detract from her credibility as to her overall disability. One does not need to be ‘utterly 14 incapacitated’ in order to be disabled.”), citing Fair v. Bowen, 885 F.2d 597, 603 (9th
15 Cir.1989); Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (“House chores, 16 cooking simple meals, self-grooming, paying bills, writing checks, and caring for a cat in 17 one’s own home, as well as occasional shopping outside the home, are not similar to 18 typical work responsibilities.”). 19 As for the ALJ’s fourth reason, an ALJ may reject a medical opinion that is “brief, 20 conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 21 F.3d 1211, 1216 (9th Cir. 2005), citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 22 Cir.2001); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (holding that 23
24 1 statement that the plaintiff would have “decreased concentration skills” was too vague to 2 be useful in the disability determination); 20 C.F.R. § 404.1527(c)(3). 3 In his September 2008 narrative statement, Dr. Langer opined that Plaintiff was 4 incapable of performing even low stress work. AR 954. In October 2008, Dr. Langer
5 clarified his opinion by stating that Plaintiff was incapable of maintaining any type of 6 gainful employment. AR 984. See Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (a 7 physician’s opinion that it was unlikely that the claimant could sustain full-time 8 competitive employment is not a conclusion reserved to the Commissioner, but is “an 9 assessment based on objective medical evidence of [the claimant’s] likelihood of being 10 able to sustain full-time employment given the many medical and mental impairments 11 [claimant] faces and her inability to afford treatment for those conditions.”) (citing 20 12 C.F.R. § 404.1527(d)(1)). Dr. Langer assessed specific limitations consistent with his 13 finding that Plaintiff was incapable of performing even low stress work. AR 917-22. As 14 such, the ALJ erred in finding that Dr. Langer’s opinion was insufficiently specific.
15 With respect to the ALJ’s fifth reason, the ALJ reasoned that Dr. Langer’s opinion 16 that Plaintiff had marked limitations in working in proximity to others without being 17 distracted by them was inconsistent with Plaintiff’s statements to E. Andrea Shadrach, 18 Psy.D and C. Michael Regets, Ph.D., that she had always gotten along well with co- 19 workers and preferred a job that involved interaction with co-workers. AR 1388; see 20 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the 21 record as a whole, the more weight we will give to that medical opinion.”). 22 First, these isolated comments cannot, by themselves, be sufficient to discount 23 the detailed and well-supported opinion of Plaintiff’s treating physician Dr. Langer. See
24 1 Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014); see also Attmore v. Colvin, 827 2 F.3d 872, 875 (9th Cir. 2016) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 3 1999) (the Court “cannot affirm . . . ‘simply by isolating a specific quantum of supporting 4 evidence,’ but ‘must consider the record as a whole, weighing both evidence that
5 supports and evidence that detracts from the [Commissioner’s] conclusion.’”). 6 Further, the decision is not based on substantial evidence because the ALJ did 7 not have factual support in characterizing Plaintiff’s presentation to Dr. Shadrach and 8 Dr. Regets as being inconsistent with the findings of Dr. Langer. Although the record 9 shows Plaintiff told Dr. Shadrach that she got along with her co-workers and supervisors 10 at her most recent job, during her evaluation with Dr. Shadrach, Plaintiff also stated that 11 she left her job because she had difficulty making decisions and being around crowds. 12 AR 1098. Plaintiff was extremely agitated with Dr. Shadrach’s staff and those who 13 denied her disability claim, with Dr. Shadrach stating that Plaintiff was “guarded and 14 petulant” during her clinical interview. AR 1097. The Plaintiff also explained that her
15 mental health symptoms made it difficult for her to go places, interact with others, and 16 maintain friendships. Id. Despite the preference she expressed to Dr. Regets 17 concerning working with others, Plaintiff described similar symptoms during his 18 examination. AR 961-62; see Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) 19 (“In essence, the ALJ developed [her] evidentiary basis by not fully accounting for the 20 context of materials or all parts of the . . . reports. [Her] paraphrasing of record material 21 is not entirely accurate regarding the content or tone of the record.”). 22 As such, the Court cannot say that the ALJ provided specific, legitimate reasons 23 for discounting Dr. Langer’s opinions.
24 1 B. Dr. Akins 2 On November 13, 2017, Dr. Akins testified as a medical expert during the 3 hearing preceding the ALJ’s unfavorable decision. AR 1414-42. Dr. Akins testified that 4 he reviewed the entire medical record and felt he had sufficient information to offer an
5 opinion regarding Plaintiff’s impairments. AR 1415. Dr. Akins testified that based on his 6 review of the record, Plaintiff had the severe impairments of pain disorder, major 7 depressive disorder, anxiety disorder, and a history of learning disorder. Id. 8 Dr. Akins testified that there was a “certainty” that Plaintiff had marked mental 9 limitations, and that there were “some data points that do indicate some severe 10 limitations, some marked limitations.” AR 1416. Dr. Akins stated that the primary source 11 of information regarding Plaintiff’s mental impairments was Plaintiff’s treating 12 psychologist Dr. Langer, who saw Plaintiff “a handful” of times between March 2007 and 13 January 2008. AR 1416, 1423, 1434-35. 14 Dr. Akins disagreed with Dr. Langer’s opinion that Plaintiff would be unable to
15 perform full-time work, reasoning that it was inconsistent with the treatment record and 16 a September 1, 2011 psychological evaluation from Dr. Shadrach, who opined that 17 Plaintiff would have marked limitations in understanding, remembering, and carrying out 18 instructions, but no more than moderate work-related mental limitations in other 19 domains. AR 1416-17, citing AR 1097-1102, 1125-27. 20 Dr. Akins stated that Dr. Langer had provided a “fairly small snapshot” of 21 Plaintiff’s functioning between March 2007 and January 2008, but his opinions about 22 Plaintiff’s limitations were consistent, and he had “some evidence” to support his 23 opinion. AR 1424. Dr. Akins stated that Dr. Shadrach’s 2011 opinion may not have been
24 1 inaccurate despite its apparent conflict with Dr. Langer’s 2008 opinion, since Plaintiff’s 2 mental health treatment may have improved her condition during the interim, especially 3 given the apparent lack of mental health treatment in 2009 and 2010. AR 1424-25. 4 Plaintiff’s attorney later explained that she did not receive treatment during this
5 period because she did not have access to medical care, to which Dr. Akins responded 6 that he believed an individual with sufficient persistence and motivation would be able to 7 obtain medical care despite an inability to pay. AR 1435-36. 8 Dr. Akins began by assessing the paragraph B criteria. The ALJ must evaluate 9 the paragraph B criteria to determine if the severity of the claimant's mental impairment 10 meets or is medically equal to the criteria of a listed impairment. 20 C.F.R. Part 404, 11 Subpart P, Appendix 1. To meet the paragraph B criteria, a claimant must have an 12 extreme limitation of one, or marked limitation of two, of the following areas of mental 13 functioning: understanding, remembering, or applying information; interacting with 14 others; concentrating, persisting, or maintaining pace; and adapting or managing
15 oneself. 20 C.F.R. pt. 404, subpt. P app. 1, § 12.00(E). 16 Dr. Akins opined that Plaintiff had moderate to marked limitations in 17 understanding, remembering, and applying information, with Plaintiff’s limitations being 18 closer to the “marked end of the equation” due to a finding that Plaintiff had a verbal IQ 19 of 67, but also expressed some uncertainty about this finding, citing test results from Dr. 20 Shadrach’s examination which suggested that Plaintiff may have been exaggerating or 21 malingering. AR 1417-18, 1426-27 citing AR 1100-01. Dr. Akins also expressed 22 uncertainty that a person with an IQ of 67 could perform Plaintiff’s past work as a mental 23 health technician. AR 1427.
24 1 Dr. Akins assessed Plaintiff as having moderate to marked limitations in 2 interacting with others, moderate limitations in maintaining concentration, persistence, 3 and pace, and moderate to marked limitations in adapting and managing herself, again 4 citing the opinions of Dr. Langer and Dr. Shadrach. AR 1418-20.
5 Dr. Akins concluded that he could not say with a medical certainly that Plaintiff 6 had marked limitations in two of the paragraph B domains. AR 1420. Dr. Akins opined 7 that the record “potentially” would support a finding of a closed period of disability 8 consistent with Dr. Langer’s opinion, but that there was insufficient information to 9 support a finding of disability in 2011, when Dr. Shadrach examined Plaintiff. AR 1425- 10 26. Dr. Akins stated that because Dr. Langer’s treatment notes did not cover a period of 11 at least 12 months, he was unable to offer an opinion that Plaintiff was disabled. AR 12 1440-41; see 20 C.F.R. § 404.1509 (a claimant’s impairment must have lasted or must 13 be expected to last for a continuous period of at least 12 months to be disabling). Based 14 on his review of the record, Dr. Akins opined that Plaintiff:
15 would do better in a situation where there’s only occasional interaction with peers, and co-workers, and the general public. I think educational 16 somehow gets translated into up to one-third of a time, but in any event, some substantial reduction in the amount of time the person needs to be 17 around other people, or interacting with the public, co-workers, or supervisors. That simple repetitive task would be more likely to be 18 successfully completed with complex tasks, perhaps maybe beyond the scope of the person's ability. And, I would say that because the person 19 has had past difficulties, and a diagnosis of anxiety, that a time pressure environment would not be a good situation. So, claimant would probably 20 do better with some kind of piecemeal job, sorting bins, picking out clothes, something along those lines, but not something where there’s a 21 timed urgency, or timed element to the job.
22 AR 1428-29. Dr. Akins opined that it would be a good idea for the agency to appoint a 23 payee to manage Plaintiff’s benefits. AR 1429-30. 24 1 When questioned by Plaintiff’s attorney, Dr. Akins acknowledged that the verbal 2 IQ score of 67 did not come from Dr. Shadrach’s 2011 examination, in which she 3 expressed concerns that Plaintiff was malingering, but from an earlier 2007 examination 4 conducted by Dr. Regets who expressed no such concerns. AR 1430-31, citing AR 964-
5 65. 6 Plaintiff’s attorney cited Dr. Regets statement that Plaintiff appeared to be 7 dealing with her physical difficulties “at a magnified level” and that it was not unusual for 8 individuals with limited intellectual capacity to have a reduced ability to distract 9 themselves from pain and fatigue. AR 1431-32, citing AR 969. When asked if this could 10 explain Dr. Shadrach’s observation that Plaintiff might be malingering, Dr. Akins stated 11 that it was possible, but that he was uncertain if it was true in Plaintiff’s case. AR 1432. 12 Dr. Akins stated that Plaintiff’s mental impairments would not meet listing 12.05. AR 13 1433. 14 When asked if the combination of Plaintiff’s physical and mental impairments
15 would make it difficult for Plaintiff to perform full-time work, Dr. Akins stated that 16 Plaintiff’s attorney was “preaching to the choir on that one” and that “it was clear that 17 pain exacerbates psychiatric problems, and psychiatric problems typically exacerbate a 18 person’s perception of their pain.” AR 1436-37. However, Dr. Akins stated that the 19 Social Security Administration had not solicited his opinion on this question, and that 20 that he thought it best to stay in his lane. AR 1437. 21 The ALJ assigned “significant weight” to Dr. Akins’ opinion, specifically Dr. Akins’ 22 opinion that Plaintiff should be limited to simple repetitive tasks, in a workplace with no 23 more than occasional interaction with peers/co-workers and the general public, and that
24 1 given her anxiety, she should not have strict time requirements. AR 1380. The ALJ 2 reasoned that Dr. Akins’ opinion was consistent with the medical record. Id. 3 The ALJ also found that it was appropriate for Dr. Akins’ to limit his scope of 4 review to Plaintiff’s mental health, and stated that the inconsistencies discussed in the
5 hearing decision provided sufficient data points to contradict Dr. Langer’s opinion and 6 Dr. Akins’ conclusion that a closed period of disability was appropriate. AR 1380-81. 7 For the reasons discussed above, the ALJ has not provided specific and 8 legitimate reasons for discounting Dr. Langer’s opinions. See supra Section I.A. Further, 9 Dr. Akins stated that because Dr. Langer’s treatment notes did not cover a period of at 10 least 12 months, he was unable to offer an opinion that Plaintiff was disabled. AR 1440- 11 41. To the extent that Dr. Akins based his opinion on this conclusion, he erred, given 12 that Dr. Langer clearly treated Plaintiff for more than 12 months, and specifically opined 13 that Plaintiff’s period of disability would extend back to July 2005. AR 954, 984, 1072- 14 73. Dr. Akins statement that Dr. Langer only treated Plaintiff a “handful” of times and
15 provided only a “small snapshot” of Plaintiff’s functioning is inconsistent with Dr. 16 Langer’s treatment notes, which indicate that he saw Plaintiff 14 times and knew 17 Plaintiff “quite well at that time.” AR 1071, 1416, 1424. 18 The ALJ erred in relying upon Dr. Akins’ opinion, which itself relied upon Dr. 19 Akins’ speculation that Plaintiff’s mental health treatment may have improved her 20 condition given an apparent lack of mental health treatment in 2009 and 2010, and Dr. 21 Akins’ statement that a sufficiently motivated individual would be able to obtain medical 22 care despite an inability to pay. AR 1424-25, 1435-36; see Social Security Ruling 23 (“SSR”) 16-3p (If an individual fails to follow prescribed treatment that might improve
24 1 symptoms, an ALJ may find that the alleged intensity of an individual’s symptoms are 2 inconsistent with the record. However, an ALJ “will not find an individual's symptoms 3 inconsistent with the evidence in the record on this basis without considering possible 4 reasons he or she may not comply with treatment or seek treatment consistent with the
5 degree of his or her complaints.”). 6 The ALJ has not provided specific, legitimate reasons for discounting Dr. 7 Langer’s opinions, and has given significant weight to Dr. Akins’ opinion. Both agree 8 that Plaintiff was disabled, at a minimum, for a closed period, with Dr. Akins stating that 9 he was unable to find Plaintiff disabled primarily because of his mistaken belief that Dr. 10 Langer had treated Plaintiff’s mental impairments for less than 12 months. AR 1440-41. 11 For the reasons discussed above, Dr. Akins’ conclusion that Plaintiff’s lack of treatment 12 in 2009 and 2010 indicates that she was not disabled during this period is not supported 13 by substantial evidence. Further, both Dr. Langer and Dr. Akins have indicated that 14 Plaintiff’s physical impairments could significantly impact her psychiatric impairments.
15 AR 914, 1436-47. Further, Dr. Langer stated in January 2011 that given her 16 presentation during their visits, “not much” was likely to have changed since their last 17 appointment in October 2008. AR 1071-72. 18 The opinions of Dr. Langer and Dr. Akins are consistent with a finding that 19 Plaintiff was disabled between her alleged onset date of February 10, 2006 and Dr. 20 Shadrach’s September 1, 2011 exam, after which Dr. Shadrach assessed less severe 21 mental limitations. AR 1097-1102, 1125-27, 1360. 22 23
24 1 Accordingly, Plaintiff’s Motion to Alter or Amend Judgment is GRANTED, and this 2 case is remanded for an award of benefits as to the period between February 10, 2006 3 and August 31, 2011. 4 C. Remand for an Award of Benefits
5 “‘The decision whether to remand a case for additional evidence, or simply to 6 award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 7 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If 8 an ALJ makes an error and the record is uncertain and ambiguous, the court should 9 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 10 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy 11 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d 12 at 668. 13 The Ninth Circuit has developed a three-step analysis for determining when to 14 remand for a direct award of benefits. Such remand is generally proper only where
15 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 16 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited 17 evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 18 Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 19 2014)). 20 The Ninth Circuit emphasized in Leon v. Berryhill that even when each element is 21 satisfied, the district court still has discretion to remand for further proceedings or for 22 award of benefits. 80 F.3d 1041, 1045 (9th Cir. 2017). 23 24 1 In this case, the record has been fully developed and further administrative 2 proceedings would serve no useful purpose. The ALJ has failed to provide legally 3 sufficient reasons for rejecting Dr. Langer’s opinions or those portions of Dr. Akins’ 4 opinion consistent with a finding of disability. If this evidence were credited as true, the
5 ALJ would be required to find Plaintiff disabled, at a minimum, between her alleged 6 onset date, February 10, 2006, and the day before Dr. Shadrach’s examination, August 7 31, 2011. The Court also considered the length of time Plaintiff has been waiting for a 8 final disposition. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Plaintiff filed 9 her application for disability insurance benefits in 2006, and has been waiting 14 years 10 for a final decision on her claim. AR 430-34, 1357. 11 CONCLUSION 12 Based on the foregoing discussion, Plaintiff’s Motion to Alter or Amend Judgment 13 is GRANTED and this case is remanded for an award of benefits as to the period 14 between February 10, 2006 and August 31, 2011.
15 Dated this 27th day of February, 2020.
16 A
17 Theresa L. Fricke United States Magistrate Judge 18
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