Luangsrinhotha v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 1, 2021
• Docket: 3:20-cv-05284
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 SOURYDETH L., 8 Plaintiff, CASE NO. C20-5284-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL DECISION COMMISSIONER OF SOCIAL SECURITY, AND REMANDING FOR FURTHER 11 PROCEEDINGS Defendant. 12

13 Plaintiff appeals the ALJ’s decision finding him not disabled. The ALJ found insomnia, 14 post-traumatic stress disorder (PTSD), and major depressive disorder with anxious distress are 15 severe impairments; Plaintiff has the residual functional capacity (RFC) to perform a full range 16 of work at all exertional levels with additional non-exertional limitations; and Plaintiff cannot 17 perform past relevant work but is not disabled because he can perform other jobs in the national 18 economy. Tr. 21-35. 19 Plaintiff contends the ALJ misevaluated four medical opinions and failed to give valid 20 reasons to discount Plaintiff’s testimony. Dkt. 33. For the reasons below, the Court REVERSES 21 the Commissioner’s final decision and REMANDS the matter for further administrative 22 proceedings under sentence four of 42 U.S.C. § 405(g). 23 1 DISCUSSION 2 The Court may set aside the Commissioner’s denial of Social Security benefits only if the 3 ALJ’s decision is based on legal error or not supported by substantial evidence in the record as a 4 whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017).

5 A. Medical Opinions 6 Plaintiff argues the ALJ misevaluated four medical opinions regarding his mental 7 impairments. Plaintiff applied for benefits on March 13, 2017. Thus, the ALJ was required to 8 give a treating doctor’s opinion greater weight than an examining doctor’s opinion, and an 9 examining doctor’s opinion is entitled to greater weight than a non-examining doctor’s opinion. 10 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). An ALJ may only reject the contradicted 11 opinion of a treating doctor or examining doctor by giving “specific and legitimate” reasons. 12 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 13 1. Kimberly Wheeler, Ph.D. 14 Dr. Wheeler first examined Plaintiff in April 2017, and opined Plaintiff “has marked

15 limitations with performing activities within a schedule, maintaining regular attendance, being 16 punctual within customary tolerances without special supervision, communicating and 17 performing effectively in a work setting, and completing a normal workday/workweek without 18 interruptions from psychologically based symptoms,” and “moderate limitations with 19 understanding, remembering, and persisting in tasks following detailed instructions, as well as 20 making simple work-related decisions and setting realistic goals.” Tr. 31. Dr. Wheeler reviewed 21 DSHS case notes from March 2017, interviewed Plaintiff, and administered a mental status 22 examination. Tr. 473 – 477. Dr. Wheeler examined Plaintiff again in March 2018, “essentially 23 1 affirm[ing] her previous assessment,” Tr. 31, and noting Plaintiff was “[s]unk in the same spot as 2 last year.” Tr. 493. 3 The ALJ discounted Dr. Wheeler’s opinion as inconsistent with Plaintiff’s activities. Tr. 4 31. The ALJ found Plaintiff “failed to mention to the doctor he had been helping at the family

5 convenience store” as well as his “online poker and dating activities.” Id. Substantial evidence 6 does not support discounting Dr. Wheeler’s opinion on this ground. Plaintiff testified he visits his 7 mother at her convenience store “because she’s getting very ill” and “nobody’s helping her.” Tr. 8 137. Plaintiff testified he helps “organize her shelf” and “ring up the customer,” although he 9 needs to “push [himself] to help her.” Id. at 136 – 37. Plaintiff’s minimal activities at his 10 mother’s store, as well as his Internet activity, do not contradict Dr. Wheeler’s assessment that 11 Plaintiff has marked and moderate limitations stemming from his mental impairments. See 12 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that 13 the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, 14 driving a car, or limited walking for exercise, does not in any way detract from her credibility as

15 to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.”) 16 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); Cooper v. Bowen, 815 F.2d 557, 561 17 (9th Cir. 1987) (noting that a disability claimant need not “vegetate in a dark room” in order to 18 be deemed eligible for benefits). 19 The ALJ also discounted Dr. Wheeler’s opinion because “the medical evidence shows 20 that the claimant experienced symptoms primarily due to situational stressors and that his 21 symptoms responded very well to mental health treatment.” Tr. 31. However, the Ninth Circuit 22 has held “[c]ycles of improvement and debilitating symptoms are a common occurrence” in the 23 mental health context. Garrison, 759 F.3d at 1017; see id. (“Reports of ‘improvement’ in the 1 context of mental health issues must be interpreted with an understanding of the patient’s overall 2 well-being and the nature of her symptoms.”). As Plaintiff correctly argues, the record indicates 3 Plaintiff’s symptoms were not static. Compare Tr. 408 (May 2, 2017 treatment note indicating 4 “[t]here is improvement of initial symptoms.”) and Tr. 444 (July 10, 2017 treatment note

5 indicating “some improvement in mood and sleep patterns” and “he is eating 2 healthy meals a 6 day.”) with Tr. 493 (March 22, 2018 examination indicating “tight spiral between anxiety and 7 insomnia” and “Appetite diminished. ‘I’m losing a lot of weight. I eat only once a day, and get 8 full really fast.”) and Tr. 599 (August 1, 2017 treatment note indicating “Client expressed 9 symptomology consistent with a Depressive Disorder including: tearfulness, low mood, low 10 energy, lack of motivation, decrease in daily functioning (not bathing regularly, eating one meal 11 per day), passive suicidal ideation, excessive guilt, and difficulties sleeping.”). The ALJ 12 accordingly erred in discounting Dr. Wheeler’s opinion on this ground. 13 2. Tasmyn Bowes, Psy.D. 14 The ALJ found Dr. Bowes reviewed and “affirmed” Dr. Wheeler’s opinion, and gave

15 “Dr. Bowes’ little weight for the reasons discussed for Dr. Wheeler’s assessments.” Tr. 32. 16 Because the ALJ erred in discounting Dr. Wheeler’s opinion, the ALJ also erred in discounting 17 Dr. Bowes’ opinion as consistent with Dr. Wheeler’s. 18 3. Jeremy Senske, Psy.D. 19 Dr. Senske examined Plaintiff in July 2017 and opined Plaintiff’s “ability to reason, 20 understand, use memory to solve problems, sustain concentration and persistence, interact 21 socially, and adapt is impaired due to his mental health and insomnia conditions” and Plaintiff is 22 “unable to perform most activities of daily living.” Tr. 31. The ALJ discounted Dr. Senske’s 23 1 opinion for the same reasons she discounted Dr. Wheeler’s, as discussed above. The ALJ thus 2 erred in relying on these grounds. 3 The ALJ also found Dr. Senske’s opinion is “vague and fails to provide actual functional 4 limitations.” Tr. 31. Substantial evidence does not support this finding. Dr. Senske

5 unambiguously opined Plaintiff “has limited social functioning due to decreased energy, fatigue, 6 and loss of interest” and “poor concentration,” “has had sub-optimal response to medication and 7 minimal response to psychotherapy,” and “is severely decompensated due to depression, fatigue, 8 major barriers, as well as insomnia, struggles to complete any activities, especially work type 9 activities because he tends to miss many days of work or not able to perform his job duties.” Tr. 10 421 – 22. The ALJ accordingly erred in discounting Dr. Senske’s opinion on this ground. 11 4. ARNP Florence Fadele 12 The ALJ noted ARNP Fadele “had a treating relationship with the claimant,” and found 13 ARNP Fadele opined Plaintiff’s impairments “preclude performance/productivity in 14 understanding and memory 20% of an eight-hour workday, in sustained concentration and

15 persistence 20% of an eight-hour workday, in social interaction 10-30% of an eight-hour 16 workday, and adaptation 20-30% of an eight-hour workday.” Tr. 32. The ALJ also found ARNP 17 Fadele opined Plaintiff would “be off task more than 30% of the time and be absent from work 18 five or more days per month.” Id. The ALJ discounted ARNP Fadele’s opinion for the same 19 reasons she discounted Dr. Wheeler’s, as discussed above. The ALJ necessarily erred in relying 20 on these grounds. 21 The ALJ also discounted ARNP Fadele’s opinion because “the medical evidence also 22 shows that [Plaintiff’s] insomnia improved with medication compliance.” Tr. 33. This finding 23 inaccurately depicts the nature of Plaintiff's mental health symptoms, see Garrison, 759 F.3d at 1 1017, and Plaintiff’s short-lived improvement with medication, as discussed above. The ALJ 2 accordingly erred in discounting ARNP Fadele’s opinion. 3 B. Plaintiff’s Testimony 4 The ALJ found Plaintiff presented objective medical evidence establishing underlying

5 impairments that could cause the symptoms alleged and made no finding he was malingering. 6 The ALJ was thus required to provide “specific, clear, and convincing” reasons supported by 7 substantial evidence to discount Plaintiff's testimony. Trevizo, 871 F.3d at 678. 8 Plaintiff testified about his mental impairments. The ALJ indicated Plaintiff testified “he 9 is unable to sustain competitive employment primarily due to debilitating insomnia,” he 10 “averages only three to four hours of sleep per night,” he “sometimes stays up three to four 11 nights in a row,” and “his condition causes him to experience extreme fatigue, drowsiness, 12 moodiness, and diminished memory and concentration.” Tr. 24. The ALJ also indicated Plaintiff 13 testified “his medication and counseling regimen has not been helpful” and he “experiences 14 anxiety and depression, which includes symptoms such as nightmares, moodiness, racing

15 thoughts, and constant worrying.” Id. 16 The ALJ discounted Plaintiff’s testimony as based on inconsistencies in the record. First, 17 the ALJ found Plaintiff’s testimony inconsistent with the medical evidence. Tr. 24. However, 18 because the medical evidence must be reassessed, as described above, so too must Plaintiff’s 19 testimony. The ALJ also discounted Plaintiff’s testimony as inconsistent with his activities and 20 statements. Id. at 29. Substantial evidence does not support this finding. The activities and the 21 statements upon which the ALJ relies either are not supported by the record or do not contradict 22 the severity of Plaintiff’s symptoms. For example, the ALJ found Plaintiff “occasionally helps 23 run the family store.” Id. The record indicates, however, Plaintiff does not "run" the store but 1 instead assists his mother on occasion, stocking the shelves or ringing up a customer at the cash 2 register, as discussed above. The ALJ also erred in finding Plaintiff’s statement about 3 “spend[ing] his average day sitting on the couch” is inconsistent with his Internet activity. Id. 4 These activities are neither mutually exclusive nor inconsistent. See, e.g., Nguyen v. Chater, 100

5 F.3d 1462, 1466 (9th Cir. 1996) (“Most people who watch television do so sitting in a chair.”). 6 Finally, the ALJ discounted Plaintiff’s testimony on the ground he was “noncompliant with 7 treatment recommendations.” This is not a valid basis to reject Plaintiff's testimony. See 8 Garrison, 759 F.3d at 1018 n.24 (“[W]e do not punish the mentally ill for occasionally going off 9 their medication when the record affords compelling reason to view such departures from 10 prescribed treatment as part of claimants’ underlying mental afflictions.”); Nguyen, 100 F.3d at 11 1465 (“‘[I]t is a questionable practice to chastise one with a mental impairment for the exercise 12 of poor judgment in seeking rehabilitation.’”) (quoting Blankenship v. Bowen, 874 F.2d 1116, 13 1124 (6th Cir. 1989)). The ALJ accordingly erred in discounting Plaintiff’s testimony. 14 CONCLUSION

15 For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is 16 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 17 Plaintiff has assigned error regarding the evidence that was submitted to the Appeals 18 Council. However, because the Court concludes the ALJ erred in finding Plaintiff is not disabled 19 and remand for further proceedings is necessary, the Court need not address Plaintiff’s 20 contentions concerning evidence submitted to the Appeals Council. On remand, the ALJ shall 21 reevaluate the medical opinions of Drs. Wheeler, Bowes, and Senske and ARNP Fadele; 22 reevaluate Plaintiff’s testimony; develop the record and redetermine the RFC as needed; assess 23 the evidence presented to the Appeals council; and proceed to the remaining steps as appropriate. 1 DATED this 1st day of April, 2021. 2 A 3 BRIAN A. TSUCHIDA United States Magistrate Judge 4

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