Mills v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: October 20, 2020
• Docket: 3:20-cv-05304
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 KARA M., 8 Plaintiff, CASE NO. C20-5304-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL DECISION COMMISSIONER OF SOCIAL SECURITY, AND REMANDING FOR FURTHER 11 ADMINISTRATIVE PROCEEDINGS Defendant. 12

13 Plaintiff appeals the denial of her applications for Supplemental Security Income and 14 Disability Insurance Benefits. She contends the ALJ erred by discounting her testimony, her 15 sister’s lay witness statement, and several medical opinions. Dkt. 16. For the reasons below, the 16 Court REVERSES the Commissioner’s final decision and REMANDS the matter for further 17 administrative proceedings under sentence four of 42 U.S.C. § 405(g). 18 BACKGROUND 19 Plaintiff is 55 years old, has a high school education, and has worked as a truck driver 20 and a production helper. Tr. 26-27. She alleges disability as of January 1, 2016. Tr. 17. The 21 ALJ conducted a hearing in April 2019, finding Plaintiff not disabled. Tr. 34-67, 17-28. In 22 pertinent part, the ALJ found Plaintiff’s physical and mental impairments limited her to light 23 work and simple, routine tasks. Tr. 19, 22. 1 DISCUSSION 2 This Court may set aside the Commissioner’s denial of Social Security benefits only if 3 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 4 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 5 A. Medical Opinions 6 1. Treating Physician Michael K. Turner, M.D. 7 In November 2018, based on diagnoses of lumbar radiculopathy and spondylosis, 8 vascular insufficiency, and chronic fatigue syndrome, Dr. Turner opined Plaintiff could sit five 9 hours a day and stand/walk one hour, getting up to move around for 10 minutes every hour. Tr. 10 518, 521. She could frequently lift 10 pounds. Tr. 521. Her symptoms would frequently 11 interfere with attention and concentration. Tr. 522. Every two hours, she would need to rest for 12 10 minutes. Tr. 523. 13 The ALJ gave Dr. Turner’s opinions little weight on the grounds they lacked explanation 14 and his own treatment notes failed to support the extreme limitations, and thus Dr. Turner must 15 have relied on Plaintiff’s self-reports. Tr. 26. Specifically, the ALJ found X-ray and MRI tests 16 showed “no evidence of lumbar radiculopathy.” Tr. 26. The ALJ cited a December 2016 lumbar 17 MRI examination showing “[n]o spinal canal stenosis or neural foraminal stenosis of the lumbar 18 spine.” Tr. 495; Tr. 23. Stenosis is the “contraction or stricture of a passage, duct or canal.” 19 OED Online, Oxford University Press (Sept. 2020), https://www.oed.com/view/Entry/189805, 20 stenosis. The Commissioner interprets the ALJ’s finding as “no evidence of contact with any 21 nerve root.” Dkt. 17 at 5. However, nothing in the record establishes such narrowing or nerve 22 contact is necessary for radiculopathy. Radiculopathy is defined as “[d]ysfunction of one or 23 more spinal nerve roots, characterized by pain and sensory and motor disturbances and often 1 caused by compression….” OED Online, Oxford University Press (Sept. 2020), 2 www.oed.com/view/Entry/268516, radiculopathy. In other words, compression is not always the 3 cause. Accordingly, the record does not establish the lack of stenosis conflicts with Dr. Turner’s 4 opinions. The ALJ provided no other evidence supporting his conclusion Dr. Turner’s treatment

5 records did not support his opinions. Tr. 26. Plaintiff cites treatment notes showing “antalgic 6 gait, radiating pain and numbness to the lower extremities, weakness, tenderness, and atrophy of 7 the EDB muscle” as supporting lumbar radiculopathy, and extensive additional findings, such as 8 edema and back spasms, as supporting Dr. Turner’s opinions more generally. Dkt. 18 at 3-4, 9 Dkt. 16 at 6-7. The ALJ did not explain how these findings do not support Dr. Turner’s 10 opinions. Accordingly, the ALJ’s finding that a lack of explanation and conflict with the 11 treatment notes are not specific and legitimate reasons supported by substantial evidence to 12 discount Dr. Turner’s opinions. 13 The ALJ also discounted Dr. Turner’s opinions as inconsistent with Plaintiff’s activities 14 of helping watch her sister’s young children, doing self-care, driving, cooking, cleaning,

15 shopping, using public transportation, sewing, crafting, and doing yard work. Tr. 26. The ALJ 16 failed to explain how any of these activities conflict with Dr. Turner’s opinions. There is no 17 indication any of these activities require, for example, lifting more than 20 pounds or 18 standing/walking more than one hour per day. The ALJ cited pushing a lawn mower, but there is 19 no indication it required more effort than lifting 10 pounds frequently or 20 pounds occasionally, 20 as Dr. Turner opined Plaintiff could. Tr. 521. Moreover, it caused increased pain. Tr. 442. 21 Substantial evidence does not support the ALJ’s findings that Dr. Turner’s opinions are 22 contradicted by plaintiff’s activities. 23 1 In sum, the Court concludes the ALJ erred by discounting Dr. Turner’s opinions by 2 failing to provide specific and legitimate reason supported by substantial evidence. 3 2. Treating Providers Paul R. Monie, M.D., and Carter Lake, D.P.T. 4 The ALJ gave little weight to Dr. Lake’s and Dr. Monie’s June 2016 opinions Plaintiff

5 cannot even perform sedentary work based on unremarkable clinical findings and because they 6 opined the limitations would last three months with available medical treatment. Tr. 25, 388. 7 Social Security disability can only be based on inability to work due to impairments that have 8 “lasted or can be expected to last for a continuous period of not less than 12 months” or result in 9 death. 20 C.F.R. §§ 404.1505(a), 416.905(a). The opined limitations did not meet the durational 10 requirement for Social Security disability. This was a specific and legitimate reason to reject 11 those limitations. The Court concludes the ALJ did not err by discounting Dr. Lake’s and Dr. 12 Monie’s opinions. 13 3. Examining Psychologist N.K. Marks, Ph.D. 14 Dr. Marks examined Plaintiff in July 2016 and September 2018, opining marked

15 limitations in several work-related activities. Tr. 400, 510. The ALJ gave little weight to Dr. 16 Marks’ opinions as inconsistent with Plaintiff’s lack of mental health treatment and largely 17 benign mental status findings in the record, and to the 2016 opinion because normal cognitive 18 testing results a few months later contradicted Dr. Marks’ assessment of cognitive impairment. 19 Tr. 25. 20 The ALJ did not explain how the lack of mental health treatment is “inconsistent” with 21 Dr. Marks’ opinions. Tr. 25. Failure to seek treatment or follow treatment recommendations can 22 be a valid reason to discount a claimant’s symptom testimony. Where treatment is likely to be 23 successful, a claimant’s failure to avail herself of it implies her complaints are “unjustified or 1 exaggerated,” because “a person’s normal reaction is to seek relief from pain.” Orn v. Astrue, 2 495 F.3d 625, 638 (9th Cir. 2007). However, there is no similar implication for a doctor’s 3 assessment of a claimant’s condition. Plaintiff’s failure to seek treatment does not imply Dr. 4 Marks’ assessment was erroneous or exaggerated. Plaintiff’s lack of treatment was not a specific

5 and legitimate reason to discount Dr. Marks’ opinions. 6 The ALJ’s finding of largely normal mental status examination results was not supported 7 by substantial evidence. The ALJ cited Dr. Marks’ 2018 examination, which revealed 8 abnormalities in speech, attitude and behavior, mood, affect, fund of knowledge, and 9 concentration. Tr. 511-12. The ALJ also cited treatment notes for appointments related to 10 anxiety and depression, which also typically show abnormalities. See, e.g., Tr. 479 (anxious, 11 depressed, tearful), 484 (“hyperactive”). The remaining treatment notes the ALJ cited were from 12 appointments related to back and neck pain, with cursory observations of mood and affect, and 13 even some of these included abnormal results. See, e.g., Tr. 537 (“Tearful and talkative”), 588 14 (“Agitated, anxious”). In the context of extensive abnormal results in thorough mental status

15 examinations, findings of appropriate mood and affect in appointments primarily focused on 16 physical symptoms are not representative of the record as a whole. See Thomas v. Barnhart, 278 17 F.3d 947, 954 (9th Cir. 2002) (court must consider the record as a whole). Unsupported by 18 substantial evidence, inconsistency with largely normal mental status results could not be a 19 specific and legitimate reason to discount Dr. Marks’ opinions. 20 In July 2016 Dr. Marks administered the Trail Making Test parts A and B and assessed 21 Plaintiff as “significantly impaired” on both. Tr. 399. Yet in November 2016, another 22 examining psychologist assessed Plaintiff as “not impaired” on Trails A and B. Tr. 416. This 23 was a specific and legitimate reason to discount Dr. Marks’ opinions. Plaintiff contends she had 1 “waxing and waning pain and fatigue disorders” affecting concentration. Dkt. 16 at 11. In 2 support she cites Dr. Turner’s November 2018 opinion her symptoms frequently interfere with 3 concentration and a January 2017 treatment note reporting worsening anxiety and difficulty with 4 concentration. Tr. 522, 477-78. Neither explain why Plaintiff’s test scores would improve from

5 significantly impaired in July 2016 to not impaired in November 2016. Conflict with the record 6 was a specific and legitimate reason to discount Dr. Marks’ 2016 opinions. See Ford v. Saul, 7 950 F.3d 1141, 1156 (9th Cir. 2020) (inconsistency with objective medical evidence is a specific 8 and legitimate reason for rejecting the opinion of an examining doctor). 9 The Court concludes the ALJ permissibly discounted Dr. Marks’ 2016 opinions but erred 10 in discounting Dr. Marks’ 2018 opinions. 11 4. Melanie Edwards Mitchell, Psy.D., and Brian VanFossen, Ph.D. 12 The ALJ gave little weight to these opinions because they were based on review of Dr. 13 Marks’ 2016 and 2018 opinions. As the ALJ erred in discounting Dr. VanFossen’s 2018 14 opinions, on remand, the ALJ should reevaluate Dr. VanFossen’s 2018 opinions.

15 5. Examining Psychologist CeCilia R. Cooper, Ph.D. 16 The ALJ gave Dr. Cooper’s November 2016 opinions “partial weight,” rejecting social 17 interaction limitations as inconsistent with her own findings and the record. Tr. 25-26. Dr. 18 Cooper’s findings included “intense and boisterous” attitude and behavior, “tearful” mood and 19 affect, and “staccato” speech. Tr. 413. The ALJ did not explain how these findings were 20 inconsistent with Dr. Cooper’s opinion of “strained relationships with some supervisors” and 21 being “more comfortable … without much interaction.” Tr. 418. The ALJ also did not explain 22 how the record as a whole was inconsistent with Dr. Cooper’s opinions. Inconsistency with her 23 1 own findings or the record as a whole were not specific and legitimate reasons to discount Dr. 2 Cooper’s opinions. 3 The ALJ stated Plaintiff claimed “auditory and visual hallucinations” during this 4 examination, which were unsupported by any other evidence in the record. Tr. 26. Dr. Cooper

5 did not use the term hallucinations, but she reported Plaintiff’s description she “had images” of a 6 deceased grandmother and boyfriend and “hears voices,” and assessed Plaintiff as “quite sincere 7 in describing these incidents.” Tr. 413. The ALJ concluded this “suggests possible symptom 8 exaggeration.” Tr. 26. Even if the incidents did not occur as Plaintiff reported, it is unclear how 9 they affected Dr. Cooper’s opinions on social interaction. The Commissioner does not defend 10 the ALJ’s reason, apparently conceding it is erroneous. Given the ALJ’s other erroneous 11 reasons, and the need to reevaluate other mental health opinions on remand, the ALJ should 12 reevaluate Dr. Cooper’s opinions. 13 B. Plaintiff’s Testimony 14 The ALJ permissibly discounted Plaintiff’s testimony based on inconsistent statements,

15 conflict with her activities, and conflict with medical evidence. Tr. 24. 16 Plaintiff testified she can only sit for five minutes at a time, but can drive for 30 minutes. 17 Tr. 47, 52. She testified she can only stand for five minutes at a time, but reported mowing her 18 lawn with a push mower. Tr. 47, 442. Plaintiff testified she can only use her hands, such as for 19 sewing, for five minutes at a time. Tr. 57-58. Yet in July 2016 Plaintiff reported she “does a lot 20 of hand crafts at home.” Tr. 399. In November 2016 Plaintiff reported sitting 45 to 60 minutes 21 sewing. Tr. 442. Plaintiff argues her condition worsened, but in July 2018 she again reported 22 doing “a lot of hand crafts.” Tr. 509. Inconsistent statements and conflict with her activities 23 were clear and convincing reasons to discount Plaintiff’s physical symptom testimony. 1 The ALJ permissibly discounted Plaintiff’s testimony of poor concentration based on 2 testing showing she was “not impaired.” Tr. 24, 55-56, 416. The ALJ permissibly discounted 3 testimony of difficulty interacting with people because Plaintiff shops in stores and uses public 4 transportation. Tr. 24, 51, 399, 415. The Court accordingly concludes the ALJ did not err by

5 discounting Plaintiff’s testimony. 6 C. Lay Witness Statement 7 The ALJ permissibly discounted Plaintiff’s sister’s similar lay witness statement for the 8 same reasons as Plaintiff’s testimony. See Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 694 9 (9th Cir. 2009) (if an ALJ gave clear and convincing reasons for rejecting the claimant’s 10 testimony, those reasons are germane to similar testimony by a lay witness). The Court 11 accordingly affirms the ALJ’s assessment of the lay witness testimony. 12 D. Scope of Remand 13 Plaintiff incorrectly asserts improperly rejected evidence should be credited as true and 14 benefits should be awarded. Dkt. 16 at 19. The Court can only remand for benefits when the

15 record is complete and further administrative proceedings would serve no useful purpose. 16 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Here, however, there remain conflicts 17 the ALJ must resolve between the challenged medical opinions and the opinions of the State 18 agency non-examining doctors. See Tr. 110, 112, 125, 127. Enhancement of the record would 19 be useful and, accordingly, remand for further proceedings is appropriate. 20 CONCLUSION 21 For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is 22 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 23 1 On remand, the ALJ should reevaluate the Dr. Turner’s opinions, Dr. Marks’ 2018 2 opinions, Dr. VanFossen’s 2018 opinions, and Dr. Cooper’s opinions; develop the record and 3 reassess the RFC as appropriate; and proceed to step five as necessary. 4 DATED this 20th day of October, 2020.

5 A 6 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 7

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