Kang v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 26, 2021
• Docket: 3:20-cv-05743
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 MAL IM K., 6 Plaintiff, CASE NO. 3:20-cv-05743-BAT 7 v. ORDER REVERSING AND 8 REMANDING COMMISSIONER OF SOCIAL SECURITY, 9 Defendant. 10

11 Plaintiff appeals the ALJ’s decision finding her not disabled. Plaintiff alleges disability 12 beginning in April 2015, due to back and neck pain and depression. Plaintiff contends that the 13 ALJ erred in his Step Two determination that her depression is not severe because he found 14 unpersuasive two medical opinions indicating this impairment was severe. Plaintiff further 15 contends the ALJ unreasonably discounted her subjective symptom testimony and failed to 16 consider several lay witness statements. Dkt. 12. 17 The Court concludes that this case should be reversed and remanded pursuant to sentence 18 four of 42 U.S.C. § 405(g) to the Commissioner for further consideration. 19 BACKGROUND 20 On May 9, 2017, Plaintiff protectively filed a Title II application for a period of disability 21 and disability insurance benefits; a Title II application for disabled widow’s benefits on May 9, 22 2017; and a Title XVI application for supplemental security income on May 8, 2017. In all 23 applications, Plaintiff alleged disability beginning July 31, 2012. These claims were denied 1 initially on September 28, 2017 and upon reconsideration on February 8, 2018. Plaintiff attended 2 a hearing before Administrative Law Judge Allen G. Erickson on April 18, 2019, where she was 3 represented by her attorney Charles W. Talbot. Vocational expert Steve Duchesne and Korean 4 interpreter Casey Yim also appeared at the hearing.1 Plaintiff was 56 when she filed her

5 disability claims and 58 at the time of the hearing. 6 Utilizing the five-step disability evaluation process, 2 the ALJ found Plaintiff’s cervical 7 spine degenerative disc disease, status post-surgery; and lumbar spine degenerative disc disease, 8 status post-surgery are severe impairments; Plaintiff has the residual functional capacity to 9 perform light work with additional limitations, and Plaintiff is still capable of performing past 10 relevant work as a Hostess and Bank Teller. Tr. 18, 19, 22, 15, 26. 11 DISCUSSION 12 The Court will reverse the ALJ’s decision only if it was not supported by substantial 13 evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. 14 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ’s decision may not be reversed on account

15 of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one 16 rational interpretation, the Court must uphold the Commissioner’s interpretation. Thomas v. 17 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 18 A. Step Two – Determination of Impairment Severity 19 In challenging the ALJ’s step two finding that Plaintiff does not have a severe medically 20 determinable mental impairment, Plaintiff contends the ALJ erred when he rejected the January 21 2018 and February 2018 opinions of consultative examining psychiatrist Pamela J. Moslin- 22 1 In her opening brief, Plaintiff takes issue with the scope of what was interpreted and the 23 omission of the interpreter’s CV. Plaintiff does not however, assign error to this issue. 2 20 C.F.R. §§ 404.1520, 416.920. 1 Lykins and DDS psychological consultant Jan L. Lewis, Ph.D. 2 Step-two of the administration’s evaluation process requires the ALJ to determine 3 whether an impairment is severe or not severe. 20 C.F.R. §§ 404.1520(c), 416.920(c). In 4 determining whether a claimant has a severe mental impairment, an ALJ must rate the degree of

5 functional limitation for four functional areas: (1) understanding, remembering, or applying 6 information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and 7 (4) adapting or managing oneself. 20 C.F.R. §§ 404.1520a(b)(c), 416.920a(b)(c); 20 C.F.R. Pt. 8 404, Subpt. P, App. 1. Ordinarily, if the ALJ rates a claimant’s degrees of limitation as “none” or 9 “mild”, the ALJ will find the claimant’s mental impairment is not severe. 20 C.F.R. §§ 10 404.1520a(d)(1), 416.920a(d)(1). 11 The ALJ acknowledged that Plaintiff has a history of depression (Tr. 20 citing Ex.5F/14), 12 but found that her depression “caused no difficulty in the ability to understand, remember, or 13 apply information; mild difficulty in the ability to interact with others; mild difficulty in the 14 ability to concentrate, persist, or maintain pace; and mild difficulty in the ability to adapt or

15 manage oneself.” Tr. 20 (emphasis in original). The ALJ also conclude that Plaintiff’s functional 16 limitations and restricted daily activities resulted primarily from Plaintiff’s physical, not her 17 mental impairments. Tr. 20. The ALJ noted that Plaintiff did not have significant issues with 18 negative depression screens until her spouse passed away in mid-2017. Tr. 21. 19 When Plaintiff was examined by Dr. Moslin-Lykins on January 10, 2018, she was taking 20 antipsychotic and antidepressant medications, and presented as agitated, depressed, and 21 occasionally tangential. Tr. 1313-1314. The mental status examination administered by Dr. 22 Moslin-Lykins revealed that, while Plaintiff’s thought process was generally linear and focused, 23 she was occasionally tangential and derailed but could eventually be interrupted and refocused; 1 Plaintiff had very poor self-esteem, feelings of self loathing, and has suicidal thoughts (but 2 would never kill herself for fear of going to hell), and her long and short term memory were 3 generally impaired. Tr. 1315. 4 Dr. Moslin-Lykins diagnosed major depression, severe, partially treated and chronic hip

5 and back pain. The doctor concluded that Plaintiff was too distressed to work; would have 6 difficulty learning tasks and performing tasks consistently without having to be continuously 7 reminded; would have difficulty getting along with coworkers, supervisors, and the public 8 because of her psychiatric symptoms; and, would have difficulty functioning in the workplace 9 and would probably find it terribly stressful, causing her to further decompensate. Dr. Moslin- 10 Lykins recommended that Plaintiff not work at the present time, although she opined that 11 Plaintiff might be able to work in the future with adequate medications. Tr. 1315-1316. 12 Dr. Jan L. Lewis, Ph.D., state agency reviewing doctor, reviewed the claim file (including 13 Dr. Moslin-Lykins’ report) on February 8, 2018. Tr. 150-163, 164-177, 178-192. Dr. Lewis 14 concluded that Plaintiff was moderately limited in her ability to understand and remember

15 detailed instructions, to maintain attention and concentration for extended periods, to complete a 16 normal workday and work week without interruptions from psychologically based symptoms and 17 to perform at a consistent pace without an unreasonable number and length of rest periods, and to 18 interact appropriately with others and the general public. Tr. 155-156. Dr. Lewis opined that 19 Plaintiff had severe depression that was only partially treated (Tr. 156), and severe mental 20 disorders as depression, bipolar, and related disorders. Tr. 155. 21 When considering medical opinions (filed on or after March 27, 2017), the ALJ considers 22 the persuasiveness of the medical opinion using five factors (supportability, consistency, 23 relationship with claimant, specialization, and other), but supportability and consistency are the 1 two most important factors. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2), (c) (2017). The ALJ 2 must explain in his decision how persuasive he finds a medical opinion(s) and/or a prior 3 administrative medical finding(s) based on these two factors. 20 C.F.R. §§ 404.1520c(b), 4 416.920c(b) (2017). The ALJ may, but is not required to, explain how he considered the other

5 remaining factors, unless the ALJ finds that two or more medical opinions or prior administrative 6 medical findings about the same issue are both equally well-supported and consistent with the 7 record, but not identical. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3) (2017). And the new 8 regulations eliminate the agency’s “treating source rule,” which gave special deference to 9 treating doctors’ opinions. 82 Fed. Reg. at 5853. 10 The ALJ rejected Dr. Lewis’s assessment because she did not have the opportunity to 11 consider “the medical evidence available at the hearing level, which shows [Plaintiff’s] 12 symptoms and mental status improved with therapy and medication where she consistently 13 exhibited cooperative, interactive, and pleasant behavior, intact thought process; grossly intact 14 memory; adequate concentration/attention; and full affect. Tr. 21 (citing Ex. 9F/79, 84, 91,

15 127…313, 468, 472, 476…548, 562-569). Similarly, the ALJ rejected Dr. Moslin-Lykins’ 16 assessment because her “opinion clearly only relates to time of the evaluation,” Plaintiff started 17 attending therapy regularly thereafter, “the doctor acknowledged she would improve with 18 treatment, and the opinion is not consistent with the longitudinal record.” Tr. 22. 19 The ALJ considered Plaintiff’s hearing testimony that she has difficulty with mental 20 problems, being alone, and not being involved in her community, along with her son’s testimony 21 that Plaintiff is antisocial and her friend’s testimony that Plaintiff has had difficulty with the 22 death of her spouse. Tr. 20. The ALJ also considered that Plaintiff engages “in an array of daily 23 activites except as limited by physical symptoms, including chores, shopping, driving, and 1 attending church” and that she testified at the hearing that she helped care for her ailing husband 2 for two years, “including taking him to appointments, driving him places, and preparing him 3 meals.” Id. (citing Ex. 18E, 20E, and 4E). The ALJ did not explain however, how these relatively 4 mundane daily activities make it so that Plaintiff’s major depressive disorder with psychotic

5 features no longer seriously affects her ability to function in a workplace. 6 The ALJ correctly noted that Plaintiff has had behavioral/psychotherapy sessions on a 7 weekly/bi-weekly basis since the Spring of 2018 and examination reports through the Spring of 8 2019 document “cooperative, interative, and pleasant behavior, intact thought process, intact 9 memory, adequate concentration/attention; groomed appearance, normal speech and good insight 10 and judgment.” Tr. 21. However, the fact that Plaintiff’s psychotherapy has been ongoing for 11 years is also evidence of the severity of her mental problems. The records from October 2018 12 show that Plaintiff was still experiencing significant mental symptoms including thoughts of 13 suicide, trouble sleeping, concerns by family that she was staying home to much, significant 14 anxiety symptoms, possible PTSD, and fair insight and judgment. Tr. 1500-1504.

15 The ALJ indicated that the psychological assessments were discounted because they were 16 not consistent with the longitudinal record. This is a conclusory statement that is insufficient to 17 justify an ALJ’s rejection of a medical opinion. See Embrey v. Bowen, 849 F.2d 18, 421-22 (418 18 (9th Cir. 1988) ("To say that medical opinions are not supported by sufficient objective findings 19 or are contrary to the preponderant conclusions mandated by the objective findings does not 20 achieve the level of specificity our prior cases have required.") see also Garrison v. Colvin, 759 21 F.3d 995, 1012–13 (9th Cir. 2014) (“[A]n ALJ errs when he rejects a medical opinion or assigns 22 it little weight while doing nothing more than ignoring it, asserting without explanation that 23 another medical opinion is more persuasive, or criticizing it with boilerplate language that fails 1 to offer a substantive basis for his conclusion.”). In addition, while the therapy notes cited by the 2 ALJ indicate that Plaintiff was cooperative, well groomed, with intact thought process and 3 memory, the ALJ provided no explanation of why these observations contradict the opinions of 4 Dr. Lewis and Dr. Moslin-Lynkins, who rated Plaintiff’s mental health issues as severe. These

5 observations are not facially inconsistent their opinions and focus primarily on Plaintiff’s 6 cognition—her concentration, memory, ability to think abstractly—not her behavioral limitations 7 such as attendance, or ability to maintain appropriate behavior and come to work on time. 8 The ALJ erred in rejecting the psychological opinions and in his Step Two determination 9 that Plaintiff’s depression is not severe. This was error as when mental limitations such as short 10 simple instructions and occasional interaction with the general public were presented to the 11 vocational expert, past work was excluded. Tr. 78. 12 B. Subjective Symptom Testimony 13 Plaintiff also argues tat the ALJ erred in finding her allegations of pain were not “entirely 14 consistent with the medical evidence” and daily activities.

15 The ALJ must make specific credibility findings, supported by the record. Social Security 16 Ruling (“SSR”) 96-7p. To determine whether testimony concerning symptoms is credible, the 17 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 18 2007). First, the ALJ must determine whether a claimant produced objective medical evidence of 19 an underlying impairment “ ‘which could reasonably be expected to produce the pain or other 20 symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) 21 (en banc)). Second, if there is no evidence of malingering, an “ALJ can reject the claimant's 22 testimony about the severity of her symptoms only by offering specific, clear and convincing 23 reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); accord Benton v. 1 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in 2 weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation 3 such as a claimant's reputation for lying; (2) the failure to seek treatment or follow a prescribed 4 course of treatment; and (3) a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035,

5 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346. 6 At the first step, the ALJ found Plaintiff's medically determinable impairments could 7 reasonably be expected to cause the symptoms alleged. Tr. 23. At the second step, because there 8 was no evidence of malingering, the ALJ was required to provide clear and convincing reasons 9 for discounting Plaintiff's testimony. Here, the ALJ discounted Plaintiff's subjective complaints 10 because the objective medical evidence did not support Plaintiff's allegations as to the intensity, 11 persistence, and limiting effects of her symptoms; and (2) Plaintiff's activities of daily living are 12 not consistent with her complaints of pain. Tr. 23-24. 13 The ALJ summarized Plaintiff’s complaints due to disc impairment post-surgery in 2010 14 and 2014 as follows: back and neck pain, leg weakness, falling, need to change position

15 frequently; limited ability to lift, stand, walk, and sit for extended periods, perform all listed 16 postural activities and reach; inability to lift more than 5 pounds or to sit or stand for more than 2 17 hours; need to lay down to feel better; use of a heating pad at night to sleep, a cane prescribed in 18 2014 when her hip hurts, and a walker when her back hurts; experiences side effects from 19 medication for these impairments of sleepiness, faigue, and dizziness; engages in activities of 20 daily living (such as personal care, preparing food, doing chores, shopping in stores and driving) 21 with difficulty due to her limitations. Tr. 23 (internal citations omitted). 22 Plaintiff also testified at the hearing that she has limited use of her left arm following her 23 neck surgery (Tr. 61); she lives alone and only outside contacts are her children and treatment 1 providers (Tr. 75); she does not participate in the large Korean community (id.); she sits upstairs 2 at church so that she can walk around when needed (id.); she takes walks in her garage but is 3 limited to about 15 minutes, walks slowly due to left hip and left leg pain, and needs to lie down 4 often. Tr. 74. During the hearing, she got up from her chair and squatted on the floor because her

5 hip was hurting. Tr. 72. She also testified that she had limited use of her left arm following her 6 neck surgery. Tr. 61. 7 The ALJ acknowledged Plaintiff’s multiple surgeries (neck surgery in 2010, back fusion 8 in 2014, and right hip surgery in 2014), but concluded that Plaintiff had good results from her 9 surgeries, received medication and physical therapy, and had only minimal degenerative disc 10 disease and no acute osseous abnormality. Tr. 23 (internal citations omitted). But the ALJ did not 11 explain how the medical records were inconsistent with any specific aspect of Plaintiff’s 12 testimony. Even if the ALJ’s discounting of Plaintiff's testimony was supported by a lack of 13 objective medical evidence, this cannot be the sole reason for discounting her testimony. See 14 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence

15 cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider 16 in his credibility analysis.”); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 17 (lack of corroborative objective medicine may be one factor in evaluating credibility); Bunnell, 18 947 F.2d at 345 (an ALJ “may not reject a claimant's subjective complaints based solely on a 19 lack of objective medical evidence to fully corroborate the alleged severity of pain”). 20 Additionally, the fact that Plaintiff performs certain daily activities is not grounds to 21 discount her credibility. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001). An adverse 22 credibility finding is only warranted “if a claimant is able to spend a substantial part of [her] day 23 engaged in pursuits involving the performance of physical functions that are transferable to a 1 work setting.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). Here, the daily activities relied 2 upon by the ALJ do not involve physical functions that are transferable to a work setting and do 3 not contradict Plaintiff’s testimony. She testified that while she can do things such as cook and 4 drive to church, she finds it difficult to do so given the pain she suffers when sitting or walking

5 more than 15 minutes and that she frequently needs to lay down to find relief. The ALJ noted 6 that Plaintiff’s son, friends, and previous co-workers all attested to Plaintiff’s pain, her inability 7 to sit through church, her limp, and her difficulty performing exertional activities. Tr. 23. 8 However, as discussed below, the ALJ provided no reasons for rejecting the lay witness 9 testimony. The record also reflects that as late as the hearing on April 18, 2019, Plaintiff was 10 taking Tramadol for pain. Tr. 418. While the ALJ acknowledged Plaintiff’s limitations make it 11 difficult for her to engage in daily activities, the ALJ failed to evaluate the impact of her pain on 12 her ability to function in a work setting. 13 Because Plaintiff's daily activities do not clearly undercut the credibility of her symptom 14 testimony, and lack of objective medical evidence cannot be the sole basis for discounting her

15 testimony, the ALJ failed to articulate clear and convincing reasons to discount Plaintiff's 16 testimony. 17 C. Lay Testimony 18 “Lay witness testimony as to a claimant’s symptoms is competent evidence that an ALJ 19 must take into account, unless he or she expressly determines to disregard such testimony and 20 gives reasons germane to each witness for doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640 21 (9th Cir. 2017) (internal citations and quotation marks omitted). Lay witness testimony is 22 uniquely valuable because these witnesses, unlike doctors, are able to observe the claimant’s 23 symptoms and activities on a daily basis. See Diedrich, 874 F.3d at 640 (“The fact that lay 1 testimony ... may offer a different perspective than medical records alone is precisely why such 2 evidence is valuable....”). 3 Plaintiff submitted four lay witness statements from her son, friends, and previous co- 4 workers. Tr. 405-415. The statements refer to significant limitations that may be inconsistent

5 with Plaintiff’s ability to perform work on a consistent basis, i.e., 8 hours a day, 5 days a week, 6 on a regular basis. SSR 96-8p – 8. For example, Plaintiff’s son says she cannot lift more than 10 7 pounds, has a hard time moving, cannot stand and be still for more than 30 minutes to an hour, 8 does not sleep because of her back pain, and does not get out of the house except for church. Tr. 9 406. Her friend and former coworker, Suk Johnson, says Plaintiff is in a lot of pain, walks 10 slowly, cannot sit for more than an hour, has a lot of emotional pain, cannot focus on her ESL 11 classes, and has to take multiple breaks to lay down when doing household chores when the pain 12 is too much for her to continue. Tr. 409. Ms. Johnson notes that Plaintiff has worsened 13 throughout the years. Id. 14 Yong Stottlemire, Plaintiff’s friend and fellow church goer, states that Plaintiff has a hard

15 time standing, cannot sit for too long, cannot sit through the church service, cannot lift heavy 16 items, and when she worked at the bank, could not lift the coin bags. She also states that Plaintiff 17 is very skinny, frail, cries a lot, has problems sleeping, does not want to associate with anyone, 18 and does not leave the house except for church and doctor appointments. Tr. 412. 19 Plaintiff’s friend Hyunok Ywilchish writes that Plaintiff always looks like she is in pain, 20 makes grunting/grimacing sounds of pain, cannot sit through the church service but has to stand, 21 and that she limps when she walks. Tr. 415. 22 The ALJ makes only a passing reference to two of the statements with regard to 23 Plaintiff’s depression (“son also alleges that she is antisocial and her friend alleges she has 1 difficulty with her spouse’s passing.”). Tr. 20. With regard to Plaintiff’s physical impairment, the 2 ALJ states only that he considered the four statements that “mention how the clamant looks like 3 she is in pain, cannot sit through church services, has to stand, limps when she walks, and has 4 difficulty generally performing exertional activities.” Tr. 23. Defendant concedes that the ALJ

5 erred when he failed to evaluate lay witness statements “that partially conflict with the residual 6 functional capacity finding,” but argues that the error was harmless because the lay witness 7 statements reported “near identical limitations” reported by Plaintiff and which the ALJ already 8 found unreliable. Dkt. 13, p. 12. However, the ALJ, not the district court, is required to provide 9 specific reasons for rejecting lay testimony.” Stout v. Commissioner of Soc. Sec., 454 F.3d 10 1050,1054 (9th Cir. 2006) (“we cannot affirm the decision of an agency on a ground that the 11 agency did not invoke in making its decision”). 12 “In determining whether a claimant is disabled, an ALJ must consider lay witness 13 testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th 14 Cir. 2006); Spraque v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987); 20 C.F.R. § 404.1513 (e).

15 Lay testimony regarding a claimant’s symptoms or how an impairment affects ability to work “is 16 competent evidence that an ALJ must take into account,” unless the ALJ “expressly determines 17 to disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. 18 Apfel, 236 F.3d 503, 511 - 512 (9th Cir. 2001); Dodrill v. Shalala,12 F.3d 915, 918-19 (9th Cir. 19 1993). If an ALJ wishes to discount the testimony of a lay witness, he must provide reasons 20 germane to each witness and may not simply categorically discredit the testimony. Id. at 919. 21 The ALJ also may “draw inferences logically flowing from the evidence.” Sample v. Schweiker, 22 694 F.2d 639, 642 (9th Cir. 1982). 23 1 Here, the lay witnesses described significant limitations that could be considered 2 inconsistent with an ability to perform work on a consistent basis as set forth in SSR 96-8p, i.e., 3 8 hours a day, 5 days a week, on a regular basis. Thus, the ALJ was required to expressly 4 determine to disregard the statements and give reasons germane to each witness for doing so.

5 CONCLUSION 6 For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is 7 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 8 On remand, the ALJ shall reassess the opinions of Dr. Moslin-Lynkins and Dr. Lewis and the 9 ALJ’s prior Step Two finding that Plaintiff’s mental conditions are not severe, consider lay 10 witness statements, develop the record, redetermine the RFC as needed, and proceed to the 11 remaining steps as appropriate. 12 DATED this 26th day of January, 2021. 13 A 14 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 15 16 17 18 19 20 21 22 23