Kettleband v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: November 13, 2019
• Docket: 3:19-cv-05172
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ROBERT K., 8 Plaintiff, Case No. C19-5172 RAJ 9 v. ORDER REVERSING AND 10 REMANDING FOR FURTHER COMMISSIONER OF SOCIAL SECURITY, ADMINISTRATIVE 11 PROCEEDINGS Defendant. 12

13 Plaintiff Robert K. seeks review of the denial of his applications for Supplemental 14 Security Income and Disability Insurance Benefits. Plaintiff contends the administrative law 15 judge (“ALJ”) erred in evaluating the opinions of testifying medical expert Paul Wiese, Ph.D., 16 consulting examiner David Morgan, Ph.D., and consulting examiner Peter Weiss, Ph.D. Pl. Op. 17 Br. (Dkt. 7) at 1. As discussed below, the Court REVERSES the Commissioner’s final decision 18 and REMANDS the matter for further administrative proceedings under sentence four of 42 19 U.S.C. § 405(g). 20 I. BACKGROUND 21 Plaintiff is 49 years old, has a sixth-grade education, and has worked as a cook. Admin. 22 Record (“AR”) (Dkt. 5) 87, 103, 110. On July 29, 2013, Plaintiff applied for benefits, alleging 23 disability as of June 1, 2011. AR 103. Plaintiff’s applications were denied initially and on 1 reconsideration. AR 101-46. On June 22, 2015, ALJ Rudolph Murgo held a hearing on 2 Plaintiff’s claims. AR 39-66. ALJ Murgo issued a decision on October 6, 2015, in which he 3 found Plaintiff not disabled. AR 150-62. 4 On April 20, 2017, the Appeals Council vacated ALJ Murgo’s decision and remanded the 5 case back to the ALJ. AR 167-71. 6 On remand, ALJ Murgo held a second hearing, at which he took testimony from Plaintiff, 7 medical expert Paul Wiese, Ph.D., and vocational expert Paul Morrison. AR 67-100. On 8 February 5, 2018, ALJ Murgo issued a decision once again finding Plaintiff not disabled. AR 9 15-32. 10 II. THE ALJ’S DECISION

11 Using the five-step disability evaluation process, 20 C.F.R. §§ 404.1520, 416.920, the 12 ALJ found: 13 Step one: Plaintiff has not engaged in substantial gainful activity since June 1, 2011, the alleged onset date. 14 Step two: Plaintiff has the following severe impairments: Schizoaffective disorder 15 (bipolar type), and bipolar II disorder.

16 Step three: These impairments do not meet or equal the requirements of a listed impairment.1 17 Residual Functional Capacity (“RFC”): Plaintiff can perform medium work as 18 defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with exceptions. He can perform simple, routine tasks (at a specific vocational preparation level one or two, with a general 19 educational development level of two or less). He can have superficial coworker contact and no public contact. 20 Step four: Plaintiff has no past relevant work. 21 Step five: There are jobs that exist in significant numbers in the national economy that 22 Plaintiff can perform, so Plaintiff is not disabled.

23 1 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 AR 15-32. The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 2 decision the Commissioner’s final decision. AR 1-3. 3 III. DISCUSSION 4 This Court may set aside the Commissioner’s denial of Social Security benefits only if 5 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 6 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Each of an ALJ’s findings 7 must be supported by substantial evidence. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 8 1998). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 9 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 10 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th

11 Cir. 1989). The ALJ is responsible for evaluating evidence, resolving conflicts in medical 12 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 13 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 14 neither reweigh the evidence nor substitute its judgment for that of the ALJ. Thomas v. 15 Barnhart, 278 F.3d 947, 954, 957 (9th Cir. 2002). When the evidence is susceptible to more 16 than one interpretation, the ALJ’s interpretation must be upheld if rational. Burch v. Barnhart, 17 400 F.3d 676, 680-81 (9th Cir. 2005). This Court “may not reverse an ALJ’s decision on 18 account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 19 A. Dr. Wiese

20 Plaintiff argues that the ALJ erred in evaluating the opinions of Dr. Wiese, a testifying 21 medical expert. Pl. Op. Br. at 3-7. Dr. Wiese did not examine Plaintiff, but did review 22 Plaintiff’s medical records. AR 71-72. Dr. Wiese opined that Plaintiff suffered from 23 schizoaffective disorder, bipolar type, as well as polysubstance abuse or dependence. AR 77. 1 Dr. Wiese noted that Plaintiff suffered from auditory and visual hallucinations, but concluded 2 that Plaintiff’s marijuana use was not responsible for these symptoms. Id. Dr. Wiese initially 3 opined that Plaintiff would meet listings 12.03 and 12.042 based on schizoaffective disorder, 4 bipolar type. AR 72-78. Dr. Wiese addressed the Paragraph B criteria for each listing, testifying 5 that Plaintiff was moderately limited in his ability to understand, remember, and apply 6 information. AR 78. He testified that Plaintiff was markedly limited in his ability to interact 7 with others; concentrate, persist, and maintain pace; and adapt or manage himself. Id. 8 The ALJ then examined Dr. Wiese, questioning him on how Plaintiff’s alcohol and 9 marijuana use affected Plaintiff’s limitations. AR 78-81. Dr. Wiese initially testified that 10 alcohol use did not change the limitations. AR 78. However, the ALJ pointed to several specific

11 records and challenged Dr. Wiese’s conclusion. See AR 79-80. Dr. Wiese then admitted he had 12 failed to notice these specific records, and revised his opinion, testifying that if Plaintiff’s alcohol 13 and marijuana use stopped, he would only be moderately limited in his ability to interact with 14 others; concentrate, persist, and maintain pace; and adapt or manage himself. AR 81. As a 15 result, Plaintiff would not meet a listing. See id. 16 The ALJ gave Dr. Wiese’s opinions “partial weight.” AR 27-29. The ALJ rejected Dr. 17 Wiese’s opinion that Plaintiff’s drug and alcohol use caused him more than minimal limitations. 18 AR 28-29. Because the ALJ rejected Dr. Wiese’s opinion that Plaintiff had limitations due to 19 drug and alcohol use, the ALJ also rejected Dr. Wiese’s opinion that Plaintiff would meet a

20 2 A claimant may be found disabled if he meets the criteria of a medical listing. See 20 C.F.R. 21 Part 404, Subpart P, App’x 1. To be found disabled under listing 12.03 or 12.04, a claimant must meet the criteria under paragraphs A and B, or paragraphs A and C. To satisfy the paragraph B 22 criteria, Plaintiff must have at least one extreme or two marked limitations in the following areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting 23 with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. Part 404, Subpart P, App’x 1, § 12.01. 1 listing when his drug and alcohol use were taken into consideration. See AR 28-29. 2 Plaintiff argues that the ALJ erred because he rejected Dr. Wiese’s opinion that Plaintiff’s 3 drug and alcohol use were material to whether Plaintiff met a listing, and also rejected Dr. 4 Wiese’s initial opinion that Plaintiff met the Paragraph B criteria. Pl. Op. Br. at 5-7. First, 5 Plaintiff has not shown that the ALJ erred in rejecting Dr. Wiese’s opinion that drug and alcohol 6 use were material to whether Plaintiff met a listing. An ALJ “may reject the opinion of a non- 7 examining physician by reference to specific evidence in the medical record.” Sousa v. 8 Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citations omitted). The ALJ pointed to specific 9 evidence in the record showing that Plaintiff’s drug and alcohol use caused no more than 10 minimal limitations. AR 28-29. The ALJ noted that the only substances Plaintiff used were

11 marijuana and alcohol. AR 28. The medical record showed that marijuana did not cause 12 Plaintiff’s symptoms, as Dr. Wiese himself noted. AR 28, 77. The medical record did not 13 support a finding that alcohol use impaired Plaintiff, either. Id. For example, Plaintiff had been 14 drinking just before a visit with Steve Bellinger, PA-C, yet his mental examination was normal. 15 AR 28, 593. 16 Second, in arguing that the ALJ erroneously rejected Dr. Wiese’s opinion that Plaintiff 17 met the Paragraph B criteria, Plaintiff fails to note that Dr. Wiese changed his opinion while he 18 was testifying. Dr. Wiese initially indicated that Plaintiff would meet a listing regardless of drug 19 or alcohol use. AR 78. But Dr. Wiese then revised his opinion, stating that Plaintiff would only

20 meet a listing if his drug and alcohol use were taken into consideration. AR 80-81. As explained 21 above, the ALJ reasonably rejected Dr. Wiese’s revised opinion because he found that the 22 medical evidence did not support a finding that Plaintiff’s drug and alcohol use were so limiting 23 that Plaintiff would meet a listing. AR 28-29. Dr. Wiese’s initial opinion—that Plaintiff met the 1 Paragraph B criteria regardless of drug or alcohol use—was no longer a valid opinion because 2 Dr. Wiese himself abandoned it. See AR 81. The ALJ thus had no obligation to address that 3 opinion. See Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (holding 4 that an ALJ need not address evidence that is “neither significant nor probative”). Plaintiff has 5 therefore failed to show that the ALJ harmfully erred in evaluating Dr. Wiese’s opinions. 6 B. Dr. Morgan 7 Plaintiff argues that the ALJ erred in evaluating the opinions of examining psychologist 8 Dr. Morgan. Pl. Op. Br. at 7-10. On July 11, 2013, Dr. Morgan opined that Plaintiff was 9 markedly limited in his ability to maintain a regular schedule, adapt to changes in a workplace 10 setting, communicate effectively in a work setting, set realistic goals, and plan independently.

11 AR 444. Dr. Morgan found that Plaintiff was severely limited in his ability to complete a normal 12 work day or week without interruptions from his psychologically-based symptoms, and maintain 13 appropriate behavior in a work setting. Id. Dr. Morgan opined that Plaintiff was mildly to 14 moderately limited in his ability to perform other basic work activities. Id. Dr. Morgan opined 15 that Plaintiff’s impairments would last nine months with available treatment. AR 445. 16 Dr. Morgan completed a second evaluation of Plaintiff on April 2, 2014. AR 471-75. 17 Dr. Morgan’s opinions remained the same, except that he found that Plaintiff was markedly, 18 rather than severely, limited in his ability to complete a normal work day or week without 19 interruptions from his psychologically-based symptoms. AR 473. Dr. Morgan found that

20 Plaintiff’s limitations would last seven months with available treatment. AR 474. 21 The ALJ gave Dr. Morgan’s opinions “partial weight.” AR 26. The ALJ accepted Dr. 22 Morgan’s opinions that Plaintiff was only mildly to moderately limited in several areas of basic 23 work activity. Id. The ALJ rejected the remainder of Dr. Morgan’s opinions because he 1 determined that they were inconsistent with the objective medical evidence, and they were 2 limited to nine-month3 periods. AR 26-27. The ALJ noted that “Dr. Morgan did not have the 3 opportunity to review the entire record when forming his opinion.” AR 27. The ALJ further 4 reasoned that “Dr. Morgan’s opinions are not in functionally relevant terms and were written for 5 a state agency with apparently a different assessment tool.” Id. The ALJ last reasoned that Dr. 6 Morgan’s opinions were contradicted by the fact that Plaintiff “began attending church ‘a lot,’ 7 and he enjoyed the social support from that activity.” Id. 8 The ALJ erred in rejecting Dr. Morgan’s opinions. An ALJ may only reject the opinions 9 of an examining doctor, when contradicted, by giving specific and legitimate reasons supported 10 by substantial evidence in the record for doing so. Lester v. Chater, 81 F.3d 821, 830-31 (9th

11 Cir. 1996) (citing Andrews, 53 F.3d at 1042). The ALJ can satisfy this requirement “by setting 12 out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 13 interpretation thereof, and making findings.” Reddick, 157 F.3d at 725 (citing Magallanes, 881 14 F.2d at 751). 15 The ALJ first erred in rejecting Dr. Morgan’s opinions as inconsistent with the medical 16 evidence. See AR 27. An ALJ “cannot simply pick out a few isolated instances” of normal 17 functioning that support his conclusion, but must consider those instances in the broader context 18 “with an understanding of the patient’s overall well-being and the nature of [his] symptoms.” 19 Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016). The ALJ pointed to records in which

20 providers noted that Plaintiff was “cooperative.” AR 27. But at most, if not all, of the 21

22 3 The ALJ mistakenly wrote that Dr. Morgan stated in his second opinion that Plaintiff’s limitations would last nine months, when in fact that report appears to state that Plaintiff’s 23 limitations could be expected to last seven months. See AR 474. This error has no impact on the result here. 1 appointments those records referred to, Plaintiff’s providers noted symptoms including self-harm 2 behaviors (such as cutting the inside of his hand in response to emotional pain), impulsivity, 3 inability to concentrate, memory loss, anger outbursts, anxiety, delusions, and irritability. AR 4 454, 459, 462, 509, 512, 514, 518, 522, 526, 554. The ALJ did not accurately represent the 5 record, and erred in rejecting Dr. Morgan’s opinions as inconsistent with the medical evidence. 6 See Reddick, 157 F.3d at 722-23 (finding error when the ALJ’s “paraphrasing of record material 7 [was] not entirely accurate regarding the content or tone of the record”). 8 The ALJ next erred in rejecting Dr. Morgan’s opinions because they were limited to nine- 9 month periods. See AR 27. To be eligible for disability benefits, an individual must show that 10 he suffers from one or more impairments that has lasted or can be expected to last for a

11 continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(a). Although Dr. Morgan did 12 opine in each of his reports that Plaintiff’s limitations could be expected to last less than 12 13 months, those reports covered overlapping time periods. See AR 41-45, 471-75. Dr. Morgan 14 opined in July 2013 that Plaintiff’s limitations could be expected to last for nine months. AR 15 445. In March 2014, a little less than nine months later, Dr. Morgan signed his second report, in 16 which he largely maintained the same opinions. See AR 471-75. He opined at that time that 17 Plaintiff’s impairments could be expected to last seven months with available treatment. AR 18 475. Taking the two reports together, Dr. Morgan therefore opined that Plaintiff’s limitations 19 could be expected to last for a continuous period of at least 16 months. The ALJ thus erred in

20 rejecting Dr. Morgan’s opinions because they were limited to periods of less than 12 months. 21 The ALJ also erred in rejecting Dr. Morgan’s opinions based on the finding that he “did 22 not have the opportunity to review the entire record when forming his opinion.” AR 27. This 23 reason is too vague because it does not explain or identify what in the record could have led Dr. 1 Morgan to change his opinion. Cf. Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) 2 (“[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing 3 more than ignoring it, asserting without explanation that another medical opinion is more 4 persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his 5 conclusion.”). 6 The ALJ’s fourth reason for rejecting Dr. Morgan’s opinions—that they were not given 7 in “functionally relevant terms”—is entirely without merit. The form on which Dr. Morgan gave 8 his opinions is one that regularly appears in Social Security cases. Moreover, the opinions are 9 clearly in functionally relevant terms. The phrases used in Dr. Morgan’s opinions are very 10 similar to those used in the Commissioner’s own rulings. For example, Dr. Morgan opined that

11 Plaintiff was markedly limited in his ability to “[c]ommunicate and perform effectively in a work 12 setting,” and in his ability to “[a]dapt to changes in a routine work setting.” AR 444, 473. Social 13 Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *3 (1985), gives examples of “basic work 14 activities” including “responding appropriately to supervision, coworkers, and usual situations,” 15 and “dealing with changes in a routine work setting.” The ALJ’s job is to interpret the medical 16 record and translate it into an RFC. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 17 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). The 18 ALJ could not reasonably reject Dr. Morgan’s opinions, which used language similar to language 19 the Commissioner uses in analyzing disability, on the basis that they were not given in

20 functionally relevant terms. 21 The ALJ last erred in rejecting Dr. Morgan’s opinions for being inconsistent with 22 Plaintiff’s daily activities. The ALJ noted that Plaintiff attends church “a lot,” but there is only a 23 single reference in the record to this effect. AR 638. The records during this time continually 1 note that Plaintiff worries that people are trying to “get” him. AR 638, 640, 643-44, 648-49. 2 The ALJ did not accurately summarize the record, nor was it reasonable for him to conclude that 3 Plaintiff’s purported attendance at church contradicted Dr. Morgan’s opinions, particularly when 4 those opinions covered much more than just social interaction. See AR 444, 473. Substantial 5 evidence does not support the ALJ’s finding that Plaintiff’s church attendance contradicted Dr. 6 Morgan’s opinions. The ALJ thus erred in rejecting Dr. Morgan’s opinions. 7 C. Dr. Weiss 8 Plaintiff argues that the ALJ erred in evaluating the opinions of examining psychologist 9 Dr. Weiss. Pl. Op. Br. at 10-12. Dr. Weiss examined Plaintiff in March 2016. AR 556-60. He 10 opined that Plaintiff was severely limited in his ability to maintain a regular schedule,

11 communicate and perform effectively in a work setting, maintain appropriate behavior in a work 12 setting, complete a normal work day or week without interruptions from his psychologically 13 based symptoms, and set realistic goals and plan independently. AR 558. 14 The ALJ gave Dr. Weiss’s opinions “partial weight.” AR 26. The ALJ reasoned that 15 “Dr. Weiss’s severe limits on planning and goals are inconsistent with [Plaintiff’s] woodworking 16 and his work on the trailer.” Id. The ALJ reasoned that the remainder of Dr. Weiss’s severe 17 limitations were inconsistent with the medical evidence and Plaintiff’s attendance at church. Id. 18 The ALJ erred in rejecting Dr. Weiss’s opinion that Plaintiff was severely limited in his 19 ability to plan independently and set goals. Plaintiff testified that he refurbished antique

20 furniture, sanding, staining, and polishing items such as desks and tables. AR 91, 93-95. He 21 explained that he does this when he gets angry, so he may go back to a project three to five times 22 a day. AR 95. Contrary to the ALJ’s finding, this does not show that Plaintiff can plan 23 independently or set goals, particularly in a structured work environment. Plaintiff works on 1 impulse, not according to a plan or goal. See id. Moreover, there is no evidence as to how long 2 it takes Plaintiff to refurbish a piece, how complex the pieces are, and how well Plaintiff 3 refurbishes the furniture. The ALJ’s determination is not supported by substantial evidence, and 4 the ALJ erred in rejecting Dr. Weiss’s opinion that Plaintiff was severely limited in his ability to 5 plan independently and set goals. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 6 The ALJ also erred in rejecting Dr. Weiss’s opinions as inconsistent with the medical 7 evidence and Plaintiff’s attendance at church. As explained above with respect to Dr. Morgan’s 8 opinions, the ALJ did not reasonably interpret the medical evidence or Plaintiff’s daily activities. 9 See supra Part III.B. The ALJ therefore erred in rejecting Dr. Weiss’s opinions. 10 D. Scope of Remedy

11 Plaintiff asks the Court to remand this matter for an immediate award of benefits. Pl. Op. 12 Br. at 12-13. Remand for an award of benefits “is a rare and prophylactic exception to the well- 13 established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). The 14 Ninth Circuit has established a three-step framework for deciding whether a case may be 15 remanded for an award of benefits. Id. at 1045. First, the Court must determine whether the ALJ 16 has failed to provide legally sufficient reasons for rejecting evidence. Id. (citing Garrison, 759 17 F.3d at 1020). Second, the Court must determine “whether the record has been fully developed, 18 whether there are outstanding issues that must be resolved before a determination of disability 19 can be made, and whether further administrative proceedings would be useful.” Treichler v.

20 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and 21 quotation marks omitted). If the first two steps are satisfied, the Court must determine whether, 22 “if the improperly discredited evidence were credited as true, the ALJ would be required to find 23 the claimant disabled on remand.” Garrison, 759 F.3d at 1020. “Even if [the Court] reach[es] 1 the third step and credits [the improperly rejected evidence] as true, it is within the court’s 2 discretion either to make a direct award of benefits or to remand for further proceedings.” Leon, 3 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101). 4 The appropriate remedy here is to remand for further proceedings. The doctors do not 5 agree as to the extent of Plaintiff’s limitations. Compare AR 108-09, and 131-32, with AR 444- 6 45, 473-74, 558. Plaintiff alleged an onset date of June 1, 2011, but the earliest medical records 7 are from July 2013. See AR 316, 321, 442-650. The Court cannot resolve conflicts in the 8 medical evidence, nor can it determine Plaintiff’s onset date. Remand is thus necessary. 9 On remand, the ALJ shall reevaluate the opinions of Dr. Morgan and Dr. Weiss, and 10 reevaluate the steps of the disability evaluation process, as necessary. The ALJ shall conduct all

11 further proceedings as necessary to reevaluate the disability determination in light of this 12 opinion. 13 IV. CONCLUSION 14 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 15 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 16 405(g). 17 DATED this 13th day of November, 2019.

18 A

19 The Honorable Richard A. Jones 20 United States District Judge 21

22 23