Palmer v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: February 9, 2024
• Docket: 3:23-cv-05335
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LOREN P., CASE NO. 3:23-CV-5335-DWC 11 Plaintiff, ORDER RE: SOCIAL SECURITY 12 v. DISABILITY APPEAL 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 17 of her application for supplemental security income (SSI). Pursuant to 28 U.S.C. § 636(c), Fed. 18 R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before the 19 undersigned. After considering the record, the Court concludes that the ALJ erred in assessing 20 the medical evidence and accordingly reverses and remands the case pursuant to sentence four of 21 42 U.S.C. § 405(g). 22 23 24 1 BACKGROUND 2 Plaintiff filed her application for SSI on July 11, 2016. Administrative Record (AR) 16, 3 577–83. She alleged disability beginning March 20, 2013. AR 16. After her application was 4 denied initially (AR 321–35) and upon reconsideration (AR 337–50), she filed a written request

5 for a hearing (AR 393–95). The ALJ held a hearing in September 2018 at which Plaintiff was 6 represented (AR 65–95) and issued a written decision finding Plaintiff not disabled in January 7 2019 (AR 351–70). Plaintiff requested the Appeals Council review the decision (AR 446–48), 8 and the Appeals Council subsequently vacated the ALJ’s decision and remanded for a new 9 hearing (AR 371–76). The ALJ held a new hearing on August 25, 2021, in which Plaintiff was 10 represented and testified telephonically. AR 38–64. On November 15, 2021, the ALJ issued a 11 new written decision finding Plaintiff not disabled. AR 13–37. The Appeals Council declined 12 Plaintiff’s timely request for review, making the ALJ’s decision final. AR 1–7. On April 17, 13 2023, Plaintiff filed a complaint appealing the ALJ’s decision. Dkt. 5. 14 STANDARD

15 Pursuant to 42 U.S.C. § 405(g) this Court may set aside the Commissioner's denial of 16 social security benefits if and only if the ALJ's findings are based on legal error or not supported 17 by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 18 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 19 DISCUSSION 20 Plaintiff raises two issues on appeal: (1) whether the ALJ erred in assessing statements 21 from Staci Jenkins, L.M.H.C., and Heather Asaadi, L.P.C. and (2) whether the ALJ erred in 22 assessing Plaintiff’s subjective testimony. See generally Dkt. 15. 23 24 1 Medical Statements 2 Plaintiff argues the ALJ erred in assessing statements from Staci Jenkins, L.M.H.C., and 3 Heather Asaadi, L.P.C. See Dkt. 15. Because Plaintiff filed her application before March 27, 4 2017, the rules in 20 C.F.R. § 416.927 apply to the assessment of medical source statements.

5 Under those regulations, Ms. Jenkins and Ms. Asaadi are classified as “other source[s]” and not 6 “acceptable medical sources” who can provide medical opinions. See 20 C.F.R. § 416.902(a), 7 416.927(a). “The ALJ may discount testimony from these ‘other sources’ if the ALJ ‘gives 8 reasons germane to each witness for doing so.’” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 9 2012). 10 Ms. Jenkins submitted a letter in May 2019 (AR 2574) and completed a form assessing 11 Plaintiff’s limitations in September 2019 (AR 2696–2700). She opined Plaintiff was incapable of 12 working full or part time (AR 2574) and, on the form she completed, opined Plaintiff had mostly 13 marked or extreme limitations in her ability to perform the demands of work (see AR 2696– 14 2700). Ms. Jenkins opined Plaintiff had limitations in her ability to understand, remember, and

15 apply information because of “anxiety and panic outside the home” (AR 2697), that her periodic 16 triggers caused limitations in interacting with others and concentrating, persisting, and 17 maintaining pace (AR 2697–98), and that her depression made it difficult to engage in self care 18 (AR 2699). She opined Plaintiff would “freeze or run” in a stressful situation and that she was 19 likely to engage in self-harm if she were faced with criticism. AR 2700. She checked a box on 20 the form indicating Plaintiff would miss at least two full workdays a month, but wrote below that 21 “it is unlikely she would be able to interview for work [and] if she were to obtain work it is 22 unlikely she would be able to show up.” AR 2700. 23 Similarly, Ms. Asaadi submitted a statement in August 2018 describing limitations

24 Plaintiff had. AR 1406. She opined Plaintiff had “many trauma triggers” which caused 1 interpersonal difficulties. Id. She opined Plaintiff would be “at risk for further mental health 2 decompensation if exposed to the perceived or routine stress of work” and that Plaintiff would be 3 unable to hold a full-time position due to her mental health. Id. 4 The ALJ gave “little weight” to Ms. Jenkins’ opinion and “some weight” to Ms. Asaadi’s

5 opinion. AR 24, 25. The ALJ gave several reasons for these determinations. 6 Both Ms. Jenkins and Ms. Asaadi opined Plaintiff would not be able to sustain full or part 7 time work. See AR 1406, 2574. The ALJ found both statements were on issues reserved to the 8 Commissioner under 20 C.F.R. § 404.1527(d)(1). AR 24–25. However, “assessment[s], based on 9 objective medical evidence, of [a claimant’s] likelihood of being able to sustain full time 10 employment given the many medical and mental impairments [that a claimant] faces” are not 11 “conclusory statement[s] like those described in 20 C.F.R. § 404.1527(d)(1).” Hill v. Astrue, 698 12 F.3d 1153, 1160 (9th Cir. 2012). Here, the statements of Ms. Jenkins and Ms. Asaadi were 13 assessments based on their experiences treating Plaintiff. AR 1406, 1696. Both formed their 14 opinions based on the medical evidence available to them from treating Plaintiff and described

15 the basis for those opinions with reference to Plaintiff’s impairments and their experiences 16 treating Plaintiff. See id. Thus, the ALJ’s determination that these statements were on issues 17 reserved to the Commissioner was in error. 18 With respect to Ms. Jenkins’ opinion, the ALJ noted that “it is not clear how long Ms. 19 Jenkins has treated [Plaintiff],” as Ms. Jenkins reported in her May 2021 letter she had been 20 Plaintiff’s provider since August 2020 (AR 2571) but indicated on the form she completed in 21 September 2021 that she had been Plaintiff’s provider for two years (AR 2694). Internal 22 inconsistencies in a statement can be considered by an ALJ in determining how much weight a 23 medical statement deserves. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir.

24 1 1999). However, the ALJ must “set forth the reasoning behind [her] decision[] in a way that 2 allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 3 Here, the ALJ did not explain how Ms. Jenkins’ inconsistent description of her treating 4 relationship with Plaintiff cast aspersions upon Ms. Jenkins’ opinion. Indeed, the Court cannot

5 discern why Ms. Jenkins’ observations of Plaintiff’s behavior during group therapy sessions and 6 Ms. Jenkins’ recantation of Plaintiff’s history of trauma would be undermined if Ms. Jenkins had 7 only treated Plaintiff for one year, rather than two years. 8 The ALJ, with respect to Ms. Jenkins’ opinion, also said that Ms. Jenkins’ observation 9 that Plaintiff had to log out of her group therapy meetings early was inconsistent with evidence 10 from those sessions noting Plaintiff being actively involved. AR 25. The Court need not decide 11 whether this is a reasonable interpretation of the record.1 Assuming that this was a reasonable 12 inference to draw, the ALJ does not explain why it supports rejecting the entirety of Ms. Jenkins’ 13 statement. Ms. Jenkins’ view of the limitations resulting from Plaintiff’s anxiety and 14 susceptibility to triggers was based, in part, on her statement that Plaintiff logged out of group

15 therapy meetings. AR 2574. However, Ms. Jenkins’ opinion was not solely based on this 16 observation as she also referenced Plaintiff’s history of traumatic experiences, her reports of 17 being unable to leave her home, and other observations of Plaintiff in group therapy sessions. See 18 AR 2574. Thus, the inconsistency of therapy meeting participation was not a germane reason for 19 rejecting Ms. Jenkins’ opinion. 20 21

22 1 Plaintiff argues the ALJ should have found that Plaintiff’s active involvement in her group therapy sessions bolstered her credibility, as well as the credibility of both Ms. Jenkins and Ms. Asaadi. Dkt. 15 at 6, 10. 23 Although an ALJ may discount a claimant’s testimony for failing to follow through with treatment, see Molina, 674 F.3d at 1113–14, this does not mean that an ALJ errs by rejecting a claimant’s testimony where they do participate 24 in their treatment. 1 The ALJ also discounted Ms. Jenkins’ statement because objective medical evidence 2 reflected “generally normal mental status exams.” AR 25 (citing AR 1654–55, 1943–44, 2194). 3 The ALJ cited evidence from treatment examinations with mental status finding that were 4 relatively normal—for example, the evidence showed that, at three specific appointments,

5 Plaintiff had a normal mood, normal affect, and a logical thought process. See AR 1654–55, 6 1943–44, 2194. A statement’s inconsistency with the medical evidence can be a germane reason 7 to discount it. See Bayliss, 427 F.3d at 1218. Here, however, the ALJ failed to explain how the 8 normal mental status exams were inconsistent with Ms. Jenkins’ statement. The Court cannot 9 discern, for instance, why any of the results from these mental status examinations are 10 inconsistent with Ms. Jenkins’ opinion that Plaintiff’s stress and interpersonal difficulties would 11 be prohibitive of full-time work, as the mental status exams had no apparent bearing on 12 Plaintiff’s abilities to interact with co-workers or to deal with stressful situations. 13 With respect to Ms. Asaadi’s statement, the ALJ said she gave more weight to the 14 opinions of state agency reviewers who opined Plaintiff could work in environments with no

15 public contact and only superficial contact with others. AR 24. An ALJ may reject the opinion of 16 an “other source” by preferring a contrary opinion. See Britton v. Colvin, 787 F.3d 1011, 1013 17 (9th Cir. 2017). However, the ALJ’s reason for preferring the state agency examiners’ opinions 18 was that their opined limitations were “consistent with the generally normal examinations.” AR 19 24. The ALJ failed to explain why the normal mental status examinations he discussed were 20 inconsistent with the statement of Ms. Asaadi—as discussed, normal mental status examinations 21 are not necessarily inconsistent with Ms. Asaadi’s opined limitations in Plaintiff’s abilities to 22 handle stressful situations and manage interpersonal conflict. 23

24 1 Furthermore, the ALJ’s explanation for preferring the state agency reviewers’ opinions 2 addressed only the parts of Ms. Asaadi’s statement that relate to Plaintiff’s social difficulties. It 3 was not a germane reason for rejecting the remainder of Ms. Asaadi’s opinion. For instance, the 4 ALJ did not explain why the state agency reviewers’ opinions had any bearing on Ms. Asaadi’s

5 statements about Plaintiff’s sleep disturbances, inabilities to focus, and propensity for self-harm 6 when faced with criticism. 7 The ALJ also said that Ms. Asaadi’s “opinion that the claimant is at risk for further 8 decompensation if exposed to the stress of work is inconsistent with the claimant’s ability to 9 participate in . . . group settings, assist her daughter with online school, engage in research about 10 her medical complaints and advocate effectively for herself in medical settings.” AR 24. The 11 activities the ALJ described are not necessarily inconsistent with Ms. Asaadi’s statement, and the 12 ALJ did not explain his determination that they were. For instance, the Court cannot discern 13 from the decision why Plaintiff’s ability to assist her daughter and engage in online research is 14 comparable to the stresses typical of a work setting, particularly given that these activities

15 require Plaintiff to interact with no one but her daughter. Similarly, Plaintiff’s participation in 16 group therapy occurred for brief, limited periods of times—such sessions are not comparable to 17 the time period of a normal workday. And group therapy sessions are unlikely to include all the 18 situations Ms. Asaadi opined would result in Plaintiff’s limitations, such as receiving criticism 19 from others. This was not a germane reason to reject Ms. Asaadi’s opinion. 20 In sum, the ALJ did not give germane reasons for discounting the statements of Ms. 21 Jenkins and Ms. Asaadi. This error was not harmless. An error is harmless only if it is not 22 prejudicial to the claimant or is “inconsequential” to the ALJ's “ultimate nondisability 23 determination.” Stout v. Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir.

24 1 2006). Here, the ALJ’s erroneous rejection of Ms. Jenkins and Ms. Asaadi’s statements was not 2 harmless because if the ALJ had credited some or all of this evidence she could have made a 3 different RFC assessment, resulting in a different outcome. For instance, the VE testified 4 Plaintiff would be unable to perform any work if she had two unexcused absences per month, as

5 Ms. Jenkins opined she would, and the VE could not say whether emotional reactivity—a 6 symptom which both Ms. Jenkins and Ms. Asaadi opined Plaintiff would exhibit in a 7 workplace—would be prohibitive of employment. AR 59, 61. 8 Subjective Testimony 9 Plaintiff argues the ALJ erred in evaluating Plaintiff's subjective testimony. Dkt. 15 at 10 11–12. As the Court has found reversible error in the ALJ's evaluation of the medical opinion 11 evidence, the Court declines to consider whether the ALJ erred in considering Plaintiff's 12 testimony. Rather, the Court directs the ALJ to reevaluate Plaintiff's testimony and the medical 13 evidence on remand, and reassess the RFC as warranted by further consideration of the evidence. 14 Remedy

15 Plaintiff argues this case should be remanded for an immediate award of benefits. Dkt. 15 16 at 13. The Court may remand for an award of benefits where “the record has been fully 17 developed and further administrative proceedings would serve no useful purpose.” McCartey v. 18 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Such a circumstance arises when (1) the ALJ 19 has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are 20 no outstanding issues that must be resolved before a determination of disability can be made; and 21 (3) it is clear from the record that the ALJ would be required to find the claimant disabled if they 22 considered the claimant's evidence. Id. Here, the Court finds that further proceedings would 23 serve a useful purpose in allowing the ALJ to reassess the medical evidence, including the

24 statements of Ms. Asaadi and Ms. Jenkins, as well as Plaintiff’s subjective testimony. 1 CONCLUSION 2 For the foregoing reasons, the Court REVERSES and REMANDS the decision pursuant 3 to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this 4 Order.

5 Dated this 9th day of February, 2024. 6 A 7 David W. Christel 8 Chief United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24