Normal v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: June 27, 2025
• Docket: 3:25-cv-05011
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ABIGAIL S. N., Case No. 3:25-cv-05011-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S LELAND DUDEK, DECISION TO DENY BENEFITS 9 ACTING COMMISSIONER OF SOCIAL SECURITY, 10 Defendant. 11

12 Plaintiff filed this action under 42 U.S.C. § 405(g) for judicial review of 13 defendant’s denial of plaintiff’s application for supplemental security income (“SSI”). 14 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule 15 MJR 13, the parties have consented to the jurisdiction of a Magistrate Judge. Dkt. 2. 16 Plaintiff challenges the ALJ’s decision finding that plaintiff did not meet the criteria for 17 disability benefits. Dkt. 5, Complaint. 18 On May 15, 2014, plaintiff filed an application for Social Security Disability 19 Insurance Benefits (“SSDI”) as well as an application for Supplemental Social Security 20 Income Benefits (“SSI”). AR 243. For both applications, plaintiff alleged disability 21 beginning January 1, 2011. Id. Both applications were denied initially and upon 22 reconsideration. Id. Plaintiff was granted a hearing and on April 5, 2017, ALJ Kelly 23 Wilson determined plaintiff was not disabled. Id. Plaintiff appealed the denial of benefits 24 1 to the appeals council (“AC”) and the request for review was denied on May 16, 2018. 2 AR 263. Plaintiff did not appeal to the United States District Court and therefore the 3 ALJ's decision of April 5, 2017 was the final decision of the Commissioner regarding 4 plaintiff's May 15, 2014 application.

5 On January 14, 2020, the plaintiff applied again for SSDI and SSI benefits, 6 asserting more allegations and impairments. AR 531-553. Plaintiff’s name has changed 7 to Abigail S. N., but the applications were filed under the name Thomas Guest. Id. Both 8 applications alleged a disability onset date of July 11, 2013. Id. 9 These claims were denied initially and upon reconsideration, and a telephone 10 hearing was held before ALJ Lawrence Lee on October 21, 2021. AR 173-207. On 11 January 26, 2022, ALJ Lee found plaintiff not disabled. AR 335-53. Plaintiff appealed to 12 the AC and, on November 10, 2022, the AC vacated the prior decision and remanded 13 the case for further administrative proceedings. AR 354-360. 14 Plaintiff amended the alleged onset date to November 21, 2019, thus

15 disqualifying her from SSDI benefits (AR 32, 574), therefore the decision on plaintiff’s 16 application that has been appealed to this Court is solely for SSI benefits. AR 531-36. 17 On September 28, 2023, ALJ Lee conducted another hearing. AR 208-39. On 18 December 21, 2023, ALJ Lee issued an unfavorable decision and determined plaintiff 19 was not under a disability within the meaning of the Social Security Act in the period 20 between November 21, 2019 to December 21, 2023. AR 31-51. Plaintiff appealed to the 21 AC and, on November 20, 2024, the AC denied review. AR 1-7. Plaintiff now seeks 22 judicial review of the ALJ’s December 21, 2023 decision. Dkt. 5. 23

24 1 ALJ Lee determined that Plaintiff had the following severe impairments: post- 2 traumatic stress disorder (“PTSD”); major depressive disorder, generalized anxiety 3 disorder; gender dysphoria; enteritis gastroparesis; somatic symptom disorder; and 4 gastroesophageal reflux disease (“GERD”). AR 35. The ALJ found plaintiff had the

5 residual functional capacity (RFC) to perform light work as defined in 20 CFR 6 416.967(b) with the following additional restrictions: 7 Climb ramps and stairs occasionally; never climb ladders, ropes, or scaffolds; stoop occasionally, kneel occasionally, crouch occasionally, and crawl 8 occasionally … can work at unprotected heights occasionally, and moving mechanical parts occasionally . . . is able to tolerate few changes in a routine 9 work setting defined as predictable and infrequent changes.

10 AR 38. The ALJ also found that plaintiff is limited to jobs with no production pace and 11 could perform the requirements of representative occupations such as: marker (light, 12 unskilled, SVP 2) DOT 209.587-034, advertising material distributer (light, unskilled, 13 SVP 2) DOT 230.687-010, and collateral operator (light, unskilled, SVP 2) 208.685-010. 14 Id., AR 50-51. 15 STANDARD 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 17 denial of Social Security disability benefits if the ALJ's findings are based on legal error 18 or not supported by substantial evidence in the record as a whole. Revels v. Berryhill, 19 874 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). The Court must consider 20 the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 21 2014). The Court also must weigh both the evidence that supports and evidence that 22 does not support the ALJ’s conclusion. Id. The Court may not affirm the decision of the 23 ALJ for a reason upon which the ALJ did not rely. Id. Rather, only the reasons identified 24 1 by the ALJ are considered in the scope of the Court’s review. Id. 2 3 DISCUSSION 4 1. Whether the ALJ harmfully erred by discounting the opinions of two

5 clinical psychologists, Dr. Wheeler and Dr. Morgan. 6 An ALJ must consider every medical opinion in the record and evaluate each 7 opinion’s persuasiveness, with the two most important factors being “supportability” and 8 “consistency.” Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022); 20 C.F.R. § 9 404.1520c(a). Supportability concerns how a medical source supports a medical opinion 10 with relevant evidence, while consistency concerns how a medical opinion is consistent 11 with other evidence from medical and nonmedical sources. See id.; 20 C.F.R. § 12 404.1520c(c)(1), (c)(2). Under the 2017 regulations, “an ALJ cannot reject an examining 13 or treating doctor’s opinion as unsupported or inconsistent without providing an 14 explanation supported by substantial evidence.” Woods, 32 F.4th at 792. The ALJ is

15 responsible for resolving conflicts in the medical opinion evidence. Ford v. Saul, 950 16 F.3d 1141, 1149 (9th Cir. 2020). The ALJ is not required to take every opinion of medical 17 professionals at “face value”. Ford v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). 18 If the evidence can be interpreted in more than one rational way, the Court is 19 required to uphold the ALJ’s rational interpretation. Stiffler v. O’Malley, 102 F.4th 1102, 20 1106 (9th Cir. 2024); Ford v. Saul, at 1154. 21 Plaintiff contends the ALJ applied an inaccurate standard in evaluating the 22 opinions of consulting examiners Dr. Kimberley Wheeler, Ph.D. and Dr. David Morgan, 23 Ph.D. when he stated “DSHS also has a differently defined severity rating than this

24 1 agency” ... Dkt. 10, at 6; AR 47. Plaintiff points to the ALJ’s statement, “The overall 2 evidence is not consistent with impairments that limit all work activity,” and argues this 3 statement would be at odds with the step five definition of disability, “the inability to 4 engage in work existing in significant numbers in the national economy”. Id. at 5; AR 44.

5 Contrary to the reasoning of the ALJ, the Washington DSHS definition aligns with 6 the SSA: 7 “Disabled means the inability to engage in any substantial gainful activity (SGA) by reason of any medical determinable physical or mental impairment(s) which 8 has lasted or can be expected to last for a continuous period of not less than 12 months with available treatment or result in death.” 9 Washington Administrative Code (WAC) 388-001(c). 10 Here, the ALJ’s reference to a definition -- which the ALJ considered as a DSHS 11 departure from the federal definition of disability -- in analyzing the medical opinions of 12 Dr. Wheeler and Dr. Morgan was error. 13 The ALJ also mentions the severity ratings used by Washington DSHS. AR 47- 14 48. Because the ALJ does not specifically discuss how a severity rating under 15 Washington DSHS regulations as used by Dr. Wheeler or Dr. Morgan would affect the 16 reliability of these psychologists’ assessments of plaintiff, the Court is not in a position to 17 meaningfully review this aspect of the ALJ’s decision. Brown-Hunter v. Colvin, 806 F.3d 18 487, 492-493 (9th Cir. 2015); see WAC 388-449-0020, “How does the department 19 evaluate functional capacity for mental health impairments?”, WAC 388-449-0035, “How 20 does the department assign severity ratings to my impairment?”, WAC 388-449-0040, 21 “How does the department determine the severity of mental impairments?”, and WAC 22 388-449-0050, “How does the department determine the severity of multiple 23 impairments?”. The ALJ refers to a difference, but there is no reasoning about the 24 1 precise nature of any differences between rating systems for psychological impairments 2 and how this would cause the ALJ to determine the experts’ opinions were unreliable. 3 An error that is inconsequential to the non-disability determination is harmless. 4 Stout v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). If the errors

5 of the ALJ result in a residual functional capacity (RFC) that does not include relevant 6 work-related limitations, the RFC is deficient and the error is not harmless. Id.; see also, 7 Carmickle v. Comm’r. Spc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Embrey v. 8 Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988); Stramol-Spirz v. Saul, 848 Fed. Appx. 9 715, 718 (9th Cir. 2021) (unpublished). 10 The ALJ discounted the opinions as having been problematic for the erroneous 11 reason that the medical opinions were given in the context of an incorrect definition of 12 “disability” and based on an ambiguous reference to severity ratings; this error 13 potentially could impact the ALJ’s analysis of the plaintiff’s RFC and impact the 14 hypothetical posed to the vocational expert (“V.E.”). The ALJ posed his hypothetical to

15 the V.E. and made his decision about what limitations should be included in the RFC 16 after he found Dr. Wheeler’s and Dr. Morgan’s assessments to be unreliable based on 17 this mysterious reasoning. The Agency is required to “set forth the reasoning behind its 18 decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 19 at 492. 20 The ALJ also relied on plaintiff’s spotty record of pursuing mental health 21 treatment and noted that the treatment she did receive for anxiety and depression was 22 conservative. AR 47, 1361. The ALJ noted that plaintiff pursued mental health treatment 23 relating to gender reassignment surgeries. Id. But the ALJ determined that, for other

24 1 allegedly disabling mental health conditions such as anxiety, depression, and somatic 2 symptom disorder, plaintiff received only conservative treatment, and medications were 3 effective at managing symptoms. AR 44, 47. The ALJ also relied on mental health 4 progress notes showing that plaintiff’s symptoms were relatively mild. See AR 44-49. As

5 the defendant argues in their responding brief, the longitudinal evidence shows that 6 plaintiff’s symptoms improved with medication and therapy. Dkt. 12, at 9-11; see AR 7 1032-1035, 1092, 1100, 1408-1414, 1454, 1739, 1744. This is a legally and factually 8 supported reason for the ALJ’s decision discounting Dr. Wheeler’s and Dr. Morgan’s 9 opinions – these clinical psychologists’ opinions were inconsistent with other medical 10 evidence showing improvement with therapy and medication and did not take into 11 account that plaintiff’s mental health therapy was off-and-on, and fairly conservative. If 12 the evidence can be interpreted in more than one rational way, the Court is required to 13 uphold the ALJ’s rational interpretation. Stiffler v. O’Malley, 102 F.4th 1102, 1106 (9th 14 Cir. 2024); Ford v. Saul, at 1154.

15 As for activities of daily living, the ALJ’s decision is not supported by substantial 16 evidence. Unlike the recent case decided by the Ninth Circuit Court of Appeals, Stiffler 17 v. O’Malley, 102 F.4th 1102, 1107-08 (9th Cir. 2024), where the ALJ properly rejected a 18 physician’s opinion by citing specific activities documented in the medical treatment 19 records – such as crafts, writing poetry, attending youth groups – in this case, the ALJ 20 provided no such analysis. With respect to Dr. Wheeler’s opinions, and Dr. Morgan’s 21 opinion, the ALJ simply mentions, in a general way, that the mental health opinions 22 were inconsistent with plaintiff’s ability to do simple chores, use dating apps, socialize 23 with friends and family, and help care for her significant other. AR 47-49. The ALJ does

24 1 not give reasoning as to why these activities would be inconsistent with the symptoms 2 and limitations assessed by Dr. Wheeler or Dr. Morgan. Therefore, it was error for the 3 ALJ to discount the opinions of Dr. Wheeler and Dr. Morgan on this basis. See Ghanim 4 v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (record did not show an inconsistency

5 between medical opinion and plaintiff’s daily activities, therefore the ALJ’s determination 6 that the medical opinion should be discounted was unsupported by the record). 7 When analyzing whether an error is harmless, the Court must consider whether 8 the error was consequential to the resulting decision that plaintiff did not meet the 9 criteria for disability benefits. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 10 (9th Cir. 2006) (an error would be considered harmless only if the Court concludes the 11 error was irrelevant to the nondisability finding). Here, the ALJ made several errors in 12 reviewing the medical opinions of these clinical psychologists. Among those errors is a 13 failure to explain how Washington DSHS severity ratings and the definition of disability 14 used by DSHS would mean the clinical psychologists’ opinions are unreliable. The

15 Court cannot conclude these are harmless errors; erroneously discounting three 16 medical opinions from two consulting physicians would potentially affect the RFC, and 17 the agency’s reasoning cannot be discerned, even though arguably one reason is 18 supported. Brown-Hunter v. Colvin, 806 F.3d at 492-495. 19 20 21 22 23

24 1 2. Whether the ALJ erred at step five 2 Plaintiff contends the ALJ failed to resolve an apparent conflict between the 3 V.E.’s testimony and the DOT because each of the occupations identified by the ALJ 4 “seem to have a production pace.” Dkt. 5, at 10.

5 Before relying on evidence presented by the V.E., the ALJ is required to ask the 6 V.E. if there is any possible conflict between the testimony of the V.E. and the 7 Dictionary of Occupational Titles (“DOT”). Massachi v. Astrue, 486 F.3d 1149, 1152 (9th 8 Cir. 1999). First, the ALJ must determine whether a conflict exists and if it does, then 9 the ALJ must determine: (1) is the V.E.’s explanation for the conflict reasonable, and (2) 10 is there a basis for relying on the V.E. instead of the DOT. Id. at 1153. 11 For the evidence presented by the V.E. to be characterized as being in conflict 12 with the DOT, any difference must be “obvious or apparent [and] at odds with the 13 [DOT]’s listing of job requirements that are essential, integral, or expected.” Gutierrez v. 14 Colvin, 844 F.3d 804, 808 (9th Cir. 2016).

15 In this case, the ALJ asked the V.E. about production pace and found that 16 plaintiff would not be able to perform past work because of the production pace of that 17 previous work. AR 231. The ALJ included a limitation in the RFC that plaintiff would not 18 be able to perform the requirements of an occupation that required a production pace 19 rate of work. AR 38. 20 The parties have not pointed to any definition of “production pace” in the DOT or 21 in the SSA regulations. Plaintiff has not established that the three occupations identified 22 by the V.E. have essential, integral, expected, or obvious, work requirements that would 23 demand production pace. Where the frequency or necessity of a task is unlikely and

24 1 unforeseeable – as with cashiers possibly having to reach overhead in the Gutierrez 2 case – there is no obligation to inquire. Therefore, in this case, because production 3 pace is not an obvious or apparent conflict to resolve, the ALJ did not err by not 4 inquiring about that aspect of the occupations identified at step five.

5 CONCLUSION 6 Based on the foregoing discussion, the Court concludes the ALJ’s committed 7 harmful error in the decision to discount the medical evidence provided by Dr. Wheeler 8 and Dr. Morgan. The Ninth Circuit has developed a three-step analysis for determining 9 when to remand for a direct award of benefits. Such remand is generally proper only 10 where 11 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed 12 to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 13 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 14 Trevizo v. Berryhill, 871 F.3d 664, 682-83 (quoting Garrison v. Colvin, 759 F.3d 15 995, 1020 (9th Cir. 2014)). 16 Here, the ALJ must re-evaluate the opinions of Dr. Wheeler and Dr. Morgan and 17 potentially take additional evidence. If the ALJ relies on a difference between 18 Washington DSHS regulations, severity ratings, or criteria for disability as a reason for 19 discounting Dr. Wheeler’s or Dr. Morgan’s opinions, the ALJ must explain their 20 reasoning. If the ALJ relies on plaintiff’s activities of daily living as a reason for 21 discounting the opinions of these clinical psychologists, the ALJ is required to explain 22 how those activities are inconsistent with the limitations opined by these experts. 23 24 1 Therefore, there are outstanding issues which must be resolved and remand for further 2 administrative proceedings is the appropriate remedy. 3 Therefore, the Commissioner’s decision is reversed and remanded for additional 4 proceedings.

5 6 Dated this 27th day of June, 2025. A 7

Theresa L. Fricke 8 United States Magistrate Judge

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