O'Neill v. Commissioner of Social Security

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 DONALD O.,

9 Plaintiff, CASE NO. C20-0503-MAT

10 v. ORDER RE: SOCIAL SECURITY 11 ANDREW M. SAUL, DISABILITY APPEAL Commissioner of Social Security, 12 Defendant. 13

14 Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of 15 the Social Security Administration (Commissioner). The Commissioner found Plaintiff not 16 eligible for Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) between 17 November 14, 2012, and November 12, 2017, after a hearing before an Administrative Law Judge 18 (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all memoranda 19 of record, this matter is REVERSED and REMANDED for a finding of disability. 20 FACTS AND PROCEDURAL HISTORY 21 Plaintiff was born on XXXX, 1988.1 He has a GED and training as a dental assistant, and 22

23 1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

ORDER RE: SOCIAL SECURITY 1 at the time of the most recent administrative hearing he had been working as a cable television 2 installer for approximately two years. (AR 283, 690.) 3 Plaintiff applied for DIB and SSI in January 2014, alleging disability as of November 14,

4 2012. (AR 236-49.) Those applications were denied and Plaintiff timely requested a hearing. (AR 5 130-33, 136-41.) 6 In November 2016, ALJ Kimberly Boyce held a hearing, taking testimony from Plaintiff 7 and a vocational expert (VE). (AR 28-73.) In June 2017, the ALJ issued a decision finding 8 Plaintiff not disabled. (AR 10-21.) Plaintiff timely appealed. The Appeals Council denied 9 Plaintiff’s request for review in September 2017 (AR 1-6), making the ALJ’s decision the final 10 decision of the Commissioner. 11 Plaintiff appealed this final decision of the Commissioner to this Court, which reversed the 12 ALJ’s decision and remanded for further administrative proceedings. (AR 761-86.) The ALJ held 13 another hearing in October 2019, where Plaintiff amended his applications to request a closed

14 period of disability from November 14, 2012, to November 12, 2017, in light of his employment 15 after that period. (AR 686-723.) In December 2019, the ALJ issued a decision finding Plaintiff 16 not disabled during that closed period (AR 668-79), and Plaintiff now seeks judicial review of that 17 decision. 18 JURISDICTION 19 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 20 DISCUSSION 21 The Commissioner follows a five-step sequential evaluation process for determining 22 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must 23 be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not

ORDER RE: SOCIAL SECURITY 1 engaged in substantial gainful activity during the adjudicated period. (AR 671.) At step two, it 2 must be determined whether a claimant suffers from a severe impairment. The ALJ found severe 3 Plaintiff’s affective disorder, anxiety disorder, cluster B traits, attention deficit hyperactivity

4 disorder, Asperger’s syndrome, and cannabis use. (AR 671.) Step three asks whether a claimant’s 5 impairments meet or equal a listed impairment. The ALJ found that Plaintiff’s impairments did 6 not meet or equal the criteria of a listed impairment. (AR 671-72.) 7 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 8 residual functional capacity (RFC) and determine at step four whether the claimant has 9 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of 10 performing a full range of work at all exertional levels, with the following nonexertional 11 limitations: he could understand, remember, and carry out simple, routine tasks and follow short, 12 simple instructions. He could perform work that requires little or no judgment, and could perform 13 simple duties that can be learned on the job in a short period. He could cope with occasional work

14 setting change and occasional, routine interaction with supervisors. He could work in proximity 15 to coworkers, but not in a team or cooperative effort. He could perform work that does not require 16 interaction with the general public as an essential element of the job, but occasional incidental 17 contact with the general public is not precluded. (AR 672-73.) With that assessment, the ALJ 18 found that during the adjudicated period, Plaintiff was unable to perform past relevant work or the 19 work he was currently performing. (AR 677.) 20 If a claimant demonstrates an inability to perform past relevant work, the burden shifts to 21 the Commissioner to demonstrate at step five that the claimant retains the capacity to make an 22 adjustment to work that exists in significant levels in the national economy. With the assistance 23 of the VE, the ALJ found Plaintiff capable of transitioning to other representative occupations,

ORDER RE: SOCIAL SECURITY 1 such as commercial cleaner, stores laborer, and industrial cleaner. (AR 678.) 2 This Court’s review of the ALJ’s decision is limited to whether the decision is in 3 accordance with the law and the findings supported by substantial evidence in the record as a

4 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more 5 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 6 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 7 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 8 decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 9 2002). 10 Plaintiff argues the ALJ erred in (1) discounting his subjective symptom testimony, (2) 11 assessing the medical opinions, and (3) failing to account for VE testimony showing that Plaintiff’s 12 limited ability to interact with supervisors is disabling.2 The Commissioner argues that the ALJ’s 13 decision is supported by substantial evidence and should be affirmed.

14 Medical evidence 15 Plaintiff challenges the ALJ’s assessment of the DSHS examining psychologist opinions, 16 as well as the State agency non-examining consultant opinions. 17 Legal standards 18 Where not contradicted by another doctor, a treating or examining doctor’s opinion may 19 be rejected only for “‘clear and convincing’” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20

21 2 In light of the Court’s finding reversible error in the ALJ’s assessment of the medical opinions and the ALJ’s failure to account for all of the VE’s testimony at step five, the Court need not address the 22 assignment of error related to Plaintiff’s subjective testimony. Even if that portion of the decision were affirmed, it would not impact the other errors, and it would not raise serious doubt as to whether Plaintiff 23 was disabled during the adjudicated period.

ORDER RE: SOCIAL SECURITY 1 1996) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a 2 treating or examining doctor’s opinion may not be rejected without “‘specific and legitimate 3 reasons’ supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830-31

4 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 5 The weight afforded the opinions of non-examining sources “depend[s] on the degree to 6 which they provide supporting explanations for their medical opinions.” 20 C.F.R. § 7 404.1527(c)(3). “The Commissioner may reject the opinion of a non-examining physician by 8 reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 9 (9th Cir. 1998). 10 Examining psychologists 11 The record contains DSHS form opinions completed by three examining psychologists in 12 2012, 2013, and 2015. (AR 491-522.) The ALJ summarized the examination reports and 13 discounted them because (1) the examining psychologists reviewed few, if any, medical records,

14 and thus had limited objective foundation for their opinions as to Plaintiff’s functioning and instead 15 relied on Plaintiff’s non-credible self-report; (2) the psychologists did not provide any rationale 16 for rating Plaintiff’s functional limitations as marked or severe (and such ratings essentially equate 17 to an opinion that Plaintiff is disabled, which is an issue reserved to the Commissioner); (3) the 18 psychologists’ checkbox ratings were inconsistent with the many normal findings referenced in 19 their mental status examinations; and (4) the opinions were inconsistent with the overall record, 20 which contained many normal medical findings and documented Plaintiff’s social and work 21 capabilities. (AR 676-77.) 22 The ALJ offered many of these reasons in the prior decision, along with other reasons not 23 repeated, and the prior court remand order found these reasons to be legally erroneous. (AR 17-

ORDER RE: SOCIAL SECURITY 1 19, 777-83.) Thus, applying the law of the case doctrine, the Court cannot affirm reasoning 2 previously found to be erroneous. See Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (“The 3 law of the case doctrine generally prohibits a court from considering an issue that has already been

4 decided by that same court or a higher court in the same case.”). 5 The new lines of reasoning are also insufficient. First, that the examiners did not provide 6 a specific rationale for their checkbox limitations does not undermine their opinions because the 7 forms they completed did not ask them to provide a specific rationale. (AR 491-522.) The form 8 does contain a “clinical findings” section, which each examiner completed. (AR 492, 503-04, 514- 9 15.) When the DSHS opinions are read as a whole, the Court finds that the ALJ unreasonably 10 characterized the opinions as unexplained. (AR 676.) 11 Next, the examining psychologists properly opined as to how Plaintiff’s symptoms impact 12 his ability to complete various workplace functions (AR 493, 505, 515-16); the checkbox ratings 13 do not, as suggested by the ALJ, simply indicate whether Plaintiff can work or is disabled. Thus,

14 the ALJ’s finding that the DSHS opinions addressed “legal conclusions reserved to the 15 Commissioner” (AR 676) is not based on a reasonable reading of the DSHS opinions. 16 Lastly, the ALJ found the DSHS opinions to be inconsistent with Plaintiff’s ability to live 17 with roommates (including children), care for a dog, and work beginning in November 2017, 18 during a time when he was not seeking treatment. (AR 677.) It is not clear how Plaintiff’s ability 19 to care for a dog is inconsistent with the DSHS opinions, and the DSHS opinions were written 20 years before Plaintiff worked or moved in with roommates. For these reasons, the Court finds that 21 the activities cited by the ALJ are not meaningfully inconsistent with the DSHS opinions, and thus 22 do not constitute a legitimate reason to discount the opinions. 23 Accordingly, the Court finds that the ALJ failed to provide legally valid reasons to discount

ORDER RE: SOCIAL SECURITY 1 the DSHS opinions. 2 State agency opinions 3 The ALJ noted that her RFC assessment was more restrictive than the non-examining State

4 agency consultants’ opinions, but the ALJ nonetheless gave weight to much of the State agency 5 opinions. (AR 675-76.) Although Plaintiff notes that generally non-examining provider opinions 6 are entitled to less weight (Dkt. 12 at 12), Plaintiff has not established that the ALJ erred in 7 crediting the State agency opinions to some degree here: he has failed to show that the State agency 8 opinions were contradicted by all of the remaining evidence in the record. See Andrews v. Shalala, 9 53 F.3d 1035, 1041 (9th Cir. 1995). 10 Plaintiff goes on to argue that the ALJ also failed to fully account for the State agency 11 opinions that Plaintiff’s concentration, persistence, and pace “may be slowed at times due to 12 attentional issues, however [he] is capable of completing a normal workday/workweek.” (AR 81, 13 91, 105, 117.) Plaintiff points to VE testimony that an employee’s being off-task 10% of the

14 workday is work-preclusive (Dkt. 12 at 12 (citing AR 719)), but the State agency consultants did 15 not opine that Plaintiff would be off-task 10% of the workday, and instead indicated that Plaintiff 16 was capable of completing a normal workday/workweek. The ALJ did not err in failing to account 17 for the State agency consultants’ speculation that Plaintiff “may” have attention deficits. See Khal 18 v. Colvin, 2015 WL 5092586, at *7 (D. Or. Aug. 27, 2015), aff’d sub nom, Khal v. Berryhill, 690 19 Fed. Appx. 499 (9th Cir. Apr. 28, 2017); Shelly A. O. v. Comm’r of Social Sec. Admin., 2020 WL 20 3868504, at *10 (D. Or. Jul. 8, 2020) (“An ALJ is not required to incorporate limitations phrased 21 equivocally into the [RFC].”). 22 VE testimony 23 At step five, the Commissioner bears the burden to show that a claimant is not disabled

ORDER RE: SOCIAL SECURITY 1 because he or she can perform other work that exists in significant numbers in the national 2 economy. 20 C.F.R. § 416.960(c)(2). In this case, the ALJ relied on the VE’s testimony that a 3 hypothetical claimant with Plaintiff’s age, education, work experience, and RFC could perform

4 three unskilled jobs, in finding him not disabled at step five. (AR 678-79.) 5 At the prior administrative hearing in 2016, however, a different VE testified that unskilled 6 jobs require an initial training period, and that during that training period, if Plaintiff was limited 7 to occasional interaction with the employee training them (based on the ALJ’s RFC restriction to 8 “occasional interaction with supervisors” (AR 14)), then Plaintiff would not be able to maintain 9 those jobs. (AR 71-72.) 10 The ALJ’s RFC assessment in the current decision includes a restriction to “occasional, 11 routine interaction with supervisors” (AR 672-73), but the VE was not asked how this limitation 12 would impact Plaintiff’s ability to complete an initial training period at the 2019 administrative 13 hearing. (AR 686-723.)

14 Plaintiff now argues that in light of the 2016 VE testimony regarding his inability to 15 complete an initial training period due to an inability to interact with supervisors for the requisite 16 amount of time, the ALJ’s RFC assessment compels a finding of disability. Dkt. 12 at 2-3 (citing 17 Gatliff v. Comm’r of Social Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999) (holding that 18 “substantial gainful activity means more than merely the ability to find a job and physically 19 perform it; it also requires the ability to hold the job for a significant period of time”)). The 20 Commissioner offers two arguments in response, and neither is persuasive. 21 First, the Commissioner argues that the 2016 VE testimony was offered in response to an 22 alternate hypothetical posed by counsel, and does not reflect the ALJ’s hypothetical/RFC 23 assessment. Dkt. 13 at 17. But counsel did not pose an alternate hypothetical; he asked whether

ORDER RE: SOCIAL SECURITY 1 unskilled jobs the VE had identified required an initial training period. (AR 71.) The VE’s 2 testimony that unskilled jobs do indeed require an initial training period clarifies the requirements 3 of the jobs identified by the VE in response to the ALJ’s hypothetical. (AR 71.) The VE’s

4 testimony further clarifies that during the initial training period, the hypothetical claimant would 5 need to interact with the employee training him (whether that was the hypothetical claimant’s 6 official supervisor or merely a co-worker) on a more than occasional basis. (AR 71-72.) Because 7 the only reasonable reading of the VE’s testimony suggests that all unskilled jobs would require 8 this initial training period, which would require more than occasional interaction with the training 9 supervisor/employee, the 2016 VE testimony establishes that a restriction to occasional supervisor 10 interaction would preclude Plaintiff’s ability to perform the unskilled jobs identified at step five in 11 the current decision. 12 Second, the Commissioner argues that the VE’s testimony was equivocal, because he 13 testified that he “doesn’t think” Plaintiff could remain on the job if he could not tolerate the

14 interaction required during an initial training period. (AR 72.) This is not a reasonable reading of 15 the VE’s testimony. The phrasing of the VE’s answer signals that his testimony reflects his 16 opinion, but does not indicate any equivocality in his opinion. 17 Because the 2016 VE testimony establishes that a hypothetical claimant with the social 18 limitations described in both the 2017 and 2019 ALJ decisions would not be able to maintain the 19 unskilled jobs identified at step five, the Commissioner has not met his burden to show that 20 Plaintiff was not disabled at step five. 21 Remedy 22 In this case, the Court has found harmful error in the ALJ’s assessment of the examining 23 psychologist opinions and the step-five findings. The Court has discretion to remand for further

ORDER RE: SOCIAL SECURITY 1 proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). 2 However, a remand for an immediate award of benefits is an “extreme remedy,” appropriate “only 3 in ‘rare circumstances.’” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting

4 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). Accord Leon v. 5 Berryhill, 880 F.3d 1044, 45 (9th Cir. 2017). 6 To remand for an award of benefits, the Court must find: (1) the ALJ failed to provide 7 legally sufficient reasons for rejecting evidence; (2) that the record has been fully developed and 8 further administrative proceedings would serve no useful purpose, a determination that includes 9 consideration of whether any outstanding issues must be resolved before determining disability; 10 and (3) that, if improperly discredited evidence were credited as true, the ALJ would be required 11 to find the claimant disabled on remand. Brown-Hunter, 806 F.3d at 495; Treichler, 775 F.3d at 12 1105; Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).3 13 Also, even with satisfaction of the three requirements, the Court retains flexibility in

14 determining the proper remedy and may remand for further proceedings where, considering the 15 record as a whole, serious doubt remains as to whether a claimant is, in fact, disabled. Brown- 16 Hunter, 806 F.3d at 495. See also Strauss v. Comm’r of Social Sec. Admin., 635 F.3d 1135, 1138 17 (9th Cir. 2011) (“A claimant is not entitled to benefits under the statute unless the claimant is, in 18 fact, disabled, no matter how egregious the ALJ’s errors may be.”) If the record is “uncertain and 19 ambiguous,” the matter is properly remanded for further proceedings. Treichler, 775 F.3d at 1105. 20 In this case, as explained supra, the ALJ erred in rejecting the examining psychologists’ 21 opinions, and also erred in failing to account for the VE’s testimony regarding the impact of the 22

3 As clarified by the Ninth Circuit, the Court considers the existence of outstanding issues before 23 considering whether to credit evidence as true. Leon, 880 F.3d at 1046; Treichler, 775 F.3d at 1101.

ORDER RE: SOCIAL SECURITY 1 supervisor contact limitation in the RFC assessment, and thus the first prong of the credit-as-true 2 rule is satisfied. The second prong is also satisfied because this case involves a remote closed 3 period of disability, and therefore the record has been fully developed and there are no outstanding

4 issues to be resolved during additional proceedings. The third and final prong is also met, because 5 the DSHS opinions describe disabling limitations and the VE’s testimony also indicates that the 6 supervisor contact limitation in the RFC assessment would be disabling. Thus, this is the rare case 7 where a remand for a finding of disability is the appropriate remedy. 8 Although the Commissioner argues in a mostly boilerplate section that the medical record 9 and Plaintiff’s lack of credibility “raises serious doubts” about whether Plaintiff was disabled 10 during the adjudicated period (Dkt. 13 at 19), the Commissioner has not pointed to any particular 11 aspect of this case that raises serious doubt. The Court does not find serious doubts on this record, 12 where the ALJ has already been afforded two opportunities to assess the same medical opinions to 13 no avail, and where Plaintiff originally applied for benefits more than six years ago. See Stone v.

14 Heckler, 761 F.2d 530, 533 (9th Cir. 1985) (noting administrative proceedings would only prolong 15 already lengthy process and delay benefits). The VE testimony indicates that the supervisor 16 contact limitation — which was included in the ALJ’s first RFC assessment as well as the second 17 RFC assessment — would be work-preclusive, and the Court declines to provide the ALJ another 18 opportunity to examine the same record to reach a different result. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / /

ORDER RE: SOCIAL SECURITY 1 CONCLUSION 2 For the reasons set forth above, this matter is REVERSED and REMANDED for a finding 3 of disability.

4 DATED this 9th day of November, 2020. 5 A 6 Mary Alice Theiler 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

ORDER RE: SOCIAL SECURITY