2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
3 Jun 10, 2020 4 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 5
6 REBECCA P.,1 No. 4:19-CV-5206-EFS
7 Plaintiff, ORDER GRANTING PLAINTIFF’S 8 v. SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S 9 ANDREW M. SAUL, the Commissioner SUMMARY-JUDGMENT MOTION of Social Security, 10 Defendant. 11 12 Plaintiff Rebecca R. slipped and fell on ice at work in January 2009. She 13 suffered physically and mentally, necessitating spine and shoulder surgery and 14 mental-health medication and treatment. In 2015, Plaintiff applied for disability 15 insurance benefits. Plaintiff appeals the denial of benefits by the Administrative 16 Law Judge (ALJ). Before the Court are the parties’ cross summary-judgment 17 motions.2 Plaintiff alleges the ALJ erred by 1) improperly determining that pain 18 disorder was not a severe impairment; 2) discounting her symptom reports; 3) 19
20 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 21 first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 22 2 ECF Nos. 10 & 11. 23 1 improperly weighing the medical opinions; and 4) improperly assessing her 2 residual functional capacity and therefore relying on incomplete hypotheticals at 3 steps four and five. In contrast, Defendant Commissioner of Social Security asks 4 the Court to affirm the ALJ’s decision finding Plaintiff not disabled. After 5 reviewing the record and relevant authority, the Court grants Plaintiff’s Motion for 6 Summary Judgment, ECF No. 10, and denies the Commissioner’s Motion for 7 Summary Judgment, ECF No. 11. 8 I. Five-Step Disability Determination 9 A five-step sequential evaluation process is used to determine whether an 10 adult claimant is disabled.3 Step one assesses whether the claimant is currently 11 engaged in substantial gainful activity.4 If the claimant is engaged in substantial 12 gainful activity, benefits are denied.5 13 Step two assesses whether the claimant has a medically severe impairment, 14 or combination of impairments, which significantly limits the claimant’s physical 15 or mental ability to do basic work activities.6 If the claimant does not, benefits are 16 denied. 7 17
18 3 20 C.F.R. § 404.1520(a). 19 4 Id. § 404.1520(a)(4)(i). 20 5 Id. § 404.1520(b). 21 6 Id. § 404.1520(a)(4)(ii). 22 7 Id. § 404.1520(c). 23 1 Step three compares the claimant’s impairments to several recognized to be 2 so severe as to preclude substantial gainful activity.8 If an impairment meets or 3 equals one of the listed impairments, the claimant is presumed to be disabled.9 If 4 an impairment does not, the disability-evaluation proceeds to step four. 5 Step four assesses whether an impairment prevents the claimant from 6 performing work she performed in the past by determining the claimant’s residual 7 functional capacity (RFC).10 If the claimant is able to perform prior work, benefits 8 are denied.11 If the claimant cannot perform prior work, the disability-evaluation 9 proceeds to step five. 10 Step five, the final step, assesses whether the claimant can perform other 11 substantial gainful work—work that exists in significant numbers in the national 12 economy—considering the claimant’s RFC, age, education, and work experience.12 13 If so, benefits are denied. If not, benefits are granted.13 14 15
16 8 20 C.F.R. § 404.1520(a)(4)(iii). 17 9 Id. § 404.1520(d). 18 10 Id. § 404.1520(a)(4)(iv). 19 11 Id. 20 12 20 C.F.R. § 404.1520(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 21 1984). 22 13 20 C.F.R. § 404.1520(g). 23 1 The claimant has the initial burden of establishing entitlement to disability 2 benefits under steps one through four.14 At step five, the burden shifts to the 3 Commissioner to show that the claimant is not entitled to benefits.15 4 II. Factual and Procedural Summary 5 Plaintiff filed a Title II application, alleging an amended disability onset 6 date of September 10, 2011.16 Her claim was denied initially and upon 7 reconsideration.17 A video administrative hearing was held before Administrative 8 Law Judge Jesse Shumway.18 9 In denying Plaintiff’s disability claim, the ALJ made the following findings: 10 Step one: Plaintiff had not engaged in substantial gainful activity 11 since September 10, 2011, the alleged onset date, through her date 12 last insured of June 30, 2014; 13 Step two: Plaintiff had the following medically determinable severe 14 impairments: major depressive disorder, PTSD, unspecified anxiety 15 disorder, cervical degenerative disc disease status post-surgery in 16 17
18 14 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 15 Id. 20 16 AR 187-88. 21 17 AR 113-16 & 118-21. 22 18 AR 41-78. 23 1 September 2010, right rotator cuff impingement status post-surgery 2 in December 2011, and obesity; 3 Step three: Plaintiff did not have an impairment or combination of 4 impairments that met or medically equaled the severity of one of the 5 listed impairments; 6 RFC: Plaintiff had the RFC to perform light work except: 7 she could only occasionally climb ladders, ropes, and scaffolds, and crawl; she could frequently perform all other 8 postural activities; she could only occasionally reach overhead with the right upper extremity; she could not have 9 concentrated exposure to hazards such as unprotected heights and moving mechanical parts; she needed a low 10 stress job, defined as no assembly-line pace or other fast- paced work, no management responsibility, and no 11 responsibility for ensuring the safety of others.
12 Step four: Plaintiff could perform past relevant work as an internal 13 auditor; and alternatively; 14 Step five: considering Plaintiff’s RFC, age, education, and work 15 history, Plaintiff could perform other work that existed in significant 16 numbers in the national economy, such as office helper, mail clerk, 17 and storage facility rental clerk.19 18 When assessing the medical-opinion evidence, the ALJ gave: 19 20 21
22 19 AR 12-39. 23 1 great weight to the reviewing opinions of John Morse, M.D. and Louis 2 Martin, M.D. that Plaintiff could perform light work with postural, 3 manipulative, and environmental restrictions; 4 some weight to a 2013 examining opinion,20 the post-June 2013 5 treating opinions of T.H. Palmatier, M.D. and Christopher Benner, 6 ARNP that Plaintiff could perform “light duty”; and Kirk Holle, P.T.’s 7 treating opinion; 8 little weight to the state workers compensation disability decisions, 9 the treating opinions of David Gibbons, M.D.,21 Dr. Palmatier in 2011 10 and 2012, Nurse Benner in 2013, Tim Nicholaus, PA-C in 2012, and 11 Glenda Abercrombie, ARNP; and to the examining opinion of Lewis 12 Almarez, M.D. and St. Elmo Newton, M.D.; and 13 no weight to the opinions that predated Plaintiff’s filing date or 14 followed the date last insured.22 15 When assessing the opinions issued by mental-health professionals, the ALJ gave: 16 great weight to the reviewing opinions of Nancy Winfrey, Ph.D., 17 Sharon Underwood, Ph.D., and John Gilbert, Ph.D.; 18
19 20 The ALJ indicated this opinion was from November 2011. However, the opinion 20 is dated November 19, 2013, and was faxed on November 25, 2013. AR 630. 21 21 The ALJ mistakenly referred to Dr. Gibbons as Dr. Gibbus. AR 27. 22 22 AR 25-28. 23 1 little weight to the treating opinions of Donald Williams, M.D. and the 2 examining opinion of Richard Schneider, M.D.; and 3 no weight to the opinions that predated Plaintiff’s filing date or 4 followed the date last insured.23 5 The ALJ also found that Plaintiff’s medically determinable impairments 6 could reasonably be expected to cause some of the alleged symptoms, but that her 7 statements concerning the intensity, persistence, and limiting effects of those 8 symptoms were not entirely consistent with the medical evidence and other 9 evidence in the record.24 Likewise, the ALJ discounted the lay statements from 10 Plaintiff’s sister.25 11 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 12 which denied review.26 Plaintiff timely appealed to this Court. 13 III. Standard of Review 14 A district court’s review of the Commissioner’s final decision is limited.27 The 15 Commissioner’s decision is set aside “only if it is not supported by substantial 16 17
18 23Id. 19 24 AR 21. 20 25 AR 26. 21 26 AR 1-6. 22 27 42 U.S.C. § 405(g). 23 1 evidence or is based on legal error.”28 Substantial evidence is “more than a mere 2 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion.”29 Moreover, because it is 4 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 5 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 6 from the record.”30 The Court considers the entire record as a whole.31 7 Further, the Court may not reverse an ALJ decision due to a harmless 8 error.32 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 9 10 11 12
13 28 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 14 29 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 15 30 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 31 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 17 consider the entire record as whole, weighing both the evidence that supports and 18 the evidence that detracts from the Commissioner's conclusion,” not simply the 19 evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th 20 Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that such 21 evidence was not considered[.]”). 22 32 Molina, 674 F.3d at 1111. 23 1 nondisability determination.”33 The party appealing the ALJ’s decision generally 2 bears the burden of establishing harm.34 3 IV. Analysis 4 A. Step Two (Severe Impairment): Plaintiff establishes consequential 5 error. 6 Plaintiff contends the ALJ erred at step two by failing to identify her pain 7 disorder, also known as somatoform disorder or somatic symptom disorder during 8 Plaintiff’s treatment history, as a severe impairment on the grounds that it was not 9 diagnosed before June 30, 2014—the date last insured. 10 At step two of the sequential process, the ALJ must determine whether the 11 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 12 physical or mental ability to do basic work activities.35 To show a severe mental 13 impairment, the claimant must first prove the existence of a mental impairment by 14 providing medical evidence consisting of signs, symptoms, and laboratory 15 findings.36 If a mental impairment is proven, the ALJ then considers whether the 16 medically determinable impairment is severe or not severe. A medically 17
18 33 Id. at 1115 (quotation and citation omitted). 19 34 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 20 35 20 C.F.R. § 404.1520(c). 21 36 Id. § 404.1521 (recognizing the claimant’s statement of symptoms alone will not 22 suffice). 23 1 determinable impairment is not severe if the “medical evidence establishes only a 2 slight abnormality or a combination of slight abnormalities which would have no 3 more than a minimal effect on an individual’s ability to work.”37 Basic mental work 4 abilities include understanding, carrying out, and remembering simple 5 instructions, dealing with changes in a routine work setting, and responding 6 appropriately to supervision, coworkers, and usual work situations.38 7 Step two is “a de minimus screening device [used] to dispose of groundless 8 claims.”39 And “[g]reat care should be exercised in applying the not severe 9 impairment concept.”40 10 The ALJ found major depressive disorder, PTSD, and unspecified anxiety 11 disorder were severe mental impairments.41 But the ALJ determined that “somatic 12 symptom disorder” was not a “medically determinable impairment[] as [it was] not 13 diagnosed before the date last insured.”42 The ALJ apparently reached this finding 14 based on the testimony of the psychological expert, Nancy Winfrey, Ph.D., who 15 16
17 37 SSR 85-28 at *3. 18 38 20 C.F.R. § 404.1521. 19 39 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 20 40 SSR 85-28. 21 41 AR 17. 22 42 AR 18. 23 1 testified that somatic symptom disorder was not diagnosed by June 30, 2014 (the 2 date last insured), but rather was diagnosed thereafter.43 3 The Commissioner concedes the ALJ’s step-two finding that Plaintiff’s 4 somatic symptom disorder was not a severe impairment was erroneous.44 And the 5 Court so finds error. “Somatic symptom disorder with predominant pain persistent 6 severe” was diagnosed by Plaintiff’s treating psychologist Donald Williams, M.D. 7 by February 13, 2014.45 And before that somatic symptom disorder was previously 8 referred to—and diagnosed—as either pain disorder or somatoform disorder by the 9 treating, examining, and reviewing physicians and psychologists. For instance, Dr. 10 Williams began diagnosing Plaintiff with pain disorder associated with 11 psychological factors and a general medical condition in September 200946; 12 Kenneth Muscatel, Ph.D. first noted the need to rule out pain disorder associated 13 with both psychological factors and a general medical condition in October 2009 14 and then diagnosed such a pain disorder in March 201147; David Bachman, Psy.D. 15 diagnosed a similar pain disorder in September 201148; Lewis Almaraz, M.D. and 16
17 43 AR 50. 18 44 ECF No. 11 at 9-10. 19 45 AR 1564. 20 46 AR 1091. 21 47 AR 755 & 768. 22 48 AR 591. 23 1 St. Elmo Newton III, M.D. listed pain disorder as an accepted condition and 2 diagnosis in November 201349; Richard Schneider, M.D. included pain disorder as 3 an accepted condition and diagnosis in November 201350; Sharon Underwood, 4 Ph.D. listed somatoform disorder as a severe impairment during the relevant 5 period51; and John Gilbert, Ph.D. listed somatoform disorder as a severe 6 impairment during the relevant period.52 Given that these medical providers and 7 reviewers found that Plaintiff suffered from pain disorder/somatoform 8 disorder/somatic symptom disorder (hereinafter, referred to as “somatic symptom 9 disorder”) before June 30, 2014, the ALJ’s finding that Plaintiff did not have such a 10 disorder before that date is not supported by substantial evidence. 11 The Commissioner argues that this error was harmless because the ALJ 12 proceeded through the subsequent disability-evaluation steps and considered the 13 evidence relating to Plaintiff’s allegations of pain and all associated functional 14 limitations, such as difficulties walking, standing, lifting, and concentrating.53 15 However, at step three (listings), the ALJ only considered the symptoms of 16 Plaintiff’s “found” medically determinable impairments of major depressive 17
18 49 AR 852. 19 50 AR 655. 20 51 AR 86. 21 52 AR 101-02. 22 53 ECF No. 11 at 9-10. 23 1 disorder, PTSD, and unspecified anxiety disorder.54 Likewise, when crafting the 2 RFC, the ALJ only considered the symptoms resulting from the “underlying 3 medically determinable physical or mental impairment(s).”55 And when considering 4 whether Plaintiff’s symptoms were consistent with the record, the ALJ found 5 Plaintiff’s “medically determinable impairments could reasonably be expected to 6 cause some of the alleged symptoms; however, [Plaintiff’s] statements concerning 7 the intensity, persistence, and limiting effects of these symptoms” were not entirely 8 consistent with the record.”56 Accordingly, the ALJ did not consider the symptoms 9 related to Plaintiff’s somatic symptom disorder, which was not deemed to be a 10 medically determinable impairment—during the subsequent evaluation steps. This 11 is consequential as many of the treating and examining providers considered the 12 interplay between Plaintiff’s psychological and physical conditions and how 13 Plaintiff was functionally limited due to her somatic symptom disorder when 14 issuing their opinion.57 The Court cannot determine on this record that the ALJ’s 15
16 54 AR 19. 17 55 AR 20. 18 56 AR 21. 19 57 See, e.g., AR 1324 (“This woman has a fighting chance of being able to [return to 20 work] at some point, but all the gears must mesh, including continuity of medical 21 and psychiatric treatment including all pharmacologic agents.”); AR 1303 (“I 22 wanted to convey to you my concern that her apparently worsening medical 23 1 failure to consider somatic symptom disorder as a severe impairment before the 2 date last insured did not impact the ALJ’s disability denial. 3 B. Plaintiff’s Symptom Reports: Plaintiff establishes consequential 4 error. 5 Plaintiff argues the ALJ failed to provide valid reasons for rejecting her 6 symptom reports. When examining a claimant’s symptom reports, the ALJ must 7 make a two-step inquiry. “First, the ALJ must determine whether there is objective 8 medical evidence of an underlying impairment which could reasonably be expected 9 to produce the pain or other symptoms alleged.”58 Second, “[i]f the claimant meets 10 the first test and there is no evidence of malingering, the ALJ can only reject the 11 12
13 condition is overshadowing and beginning to reverse the improvement I have been 14 seeing in her psychiatric and neuropsychological condition.”); AR 1412 (Plaintiff’s 15 “very limited energy is a significant limiting factor in terms of [return to work] 16 prognosis.”); AR 963 (recognizing that Plaintiff’s inability to work was 17 predominately due to psychiatric issues but that she was being treated for limiting 18 physical conditions as well); AR 591 (recognizing that Plaintiff’s higher somatic 19 complaints were likely due to psychiatric reasons); AR 559-62 (finding that 20 Plaintiff was likely to develop physical symptoms in response to stress, such as 21 somatic symptoms of headaches, neck pain, and shoulder pain). 22 58 Molina, 674 F.3d at 1112. 23 1 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, 2 clear and convincing reasons’ for the rejection.”59 3 As discussed above, the ALJ found there was objective medical evidence only 4 to support major depressive disorder, PTSD, unspecified anxiety disorder, and the 5 physical impairments of cervical degenerative disc disease status post-surgery, 6 right rotator cuff impingement status post-surgery, and obesity—not Plaintiff’s 7 somatic symptom disorder.60 8 Yet, the Commissioner argues that the ALJ considered all of Plaintiff’s 9 symptoms, including pain, and therefore the ALJ’s erroneous step-two finding did 10 not impact the ALJ’s weighing of Plaintiff’s symptom reports.61 However, the ALJ 11 only considered the extent to which Plaintiff’s reported symptoms were consistent 12 with the “found” medically determinable impairments, e.g., “any limitations arising 13 from Plaintiff’s impairments [found diagnosed as of the date last insured] are 14 accounted for sufficiently in the residual function capacity.”62 With that lens, which 15 did not include considering whether Plaintiff’s reported symptoms were consistent 16 with pain disorder, the ALJ found Plaintiff’s statements concerning the intensity, 17
18 59 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 19 F.3d at 1036). 20 60 AR 17. 21 61 ECF No. 11 at 8-11. 22 62 AR 29. 23 1 persistence, and limiting effects of her symptoms were inconsistent with the “quite 2 unremarkable” objective medical evidence and clinical observations, Plaintiff’s 3 statements during appointments, and her “robust activities of daily living.”63 4 Accordingly, the ALJ only incorporated those limitations, which the ALJ deemed to 5 be consistent with Plaintiff’s found medically determinable impairments, into the 6 RFC. 7 Yet, Plaintiff’s treating providers and examining evaluators determined that 8 Plaintiff experienced additional physical symptoms as a result of her somatic 9 symptom disorder. Moreover, two of the ALJ’s reasons for discounting Plaintiff’s 10 symptoms are either not supported by substantial evidence and/or must be more 11 meaningfully explained on remand. First, the ALJ discounted Plaintiff’s symptom 12 reports because they were inconsistent with her reports during her appointments.64 13 As to Plaintiff’s physical complaints, the ALJ found them inconsistent with 14 Plaintiff’s report that she could walk one mile on even ground. However, the ALJ 15 did not identify how Plaintiff’s ability to walk one mile was inconsistent with her 16 reported difficulties doing activities that involved her right shoulder and neck 17 movement, such as washing dishes, cooking, vacuuming, and doing laundry.65 And 18
19 63 AR 21 & 25. 20 64 AR 25. 21 65 See Ghanim, 763 F.3d at 1164 (recognizing that the ALJ may not discount 22 symptoms because of nonrelevant normal findings). 23 1 while treatment records note that Plaintiff was walking several miles, these 2 records were largely from after the date last insured and before the administrative 3 hearing date.66 4 As to Plaintiff’s mental-symptom complaints, the ALJ found them 5 inconsistent with her report to Dr. Williams that she responded well to stressful 6 situations, like a fight at one of her daughter’s soccer games, thereby 7 demonstrating an intact ability to manage her symptoms and interact with 8 others.67 The ALJ though did not discuss that Plaintiff’s mental impairments 9 waxed and waned. Several months before Plaintiff exercised restraint at the soccer 10 game in February 2014,68 Plaintiff was observed being tearful through therapy 11 sessions, with more evident depression, and with impaired memory.69 Then 12
13 66 See, e.g., AR 1684 (June 2014) (reporting to treating providers that she walked 14 but that she would experience dizziness when she bent over); AR 1750 (June 2015: 15 walking 6 miles a day); AR 1709 (July 2015: walking 6 miles a day); AR 1723 (Aug. 16 2015: walking 5 miles a day); AR 1873 (July 2016: walking about 6 miles a day); 17 AR 1783 (July 2017: can no longer walk 6 miles a day due to pain and dysfunction). 18 67 AR 25. 19 68 AR 1566. 20 69 See, e.g., AR 1506-07 (July 2013: mild to moderate irritability, fair to low energy, 21 depressed tone, tearful through most of session, and feeling guilt for multiple 22 matters, which are not reality based); AR 1508-09 (Aug. 2013: mild to moderate 23 1 beginning in October 2013, Plaintiff’s symptoms began waning—although Dr. 2 Williams still opined that Plaintiff was at her limit for activity with her one college 3 course and that she still had difficulty with multitasking as she had problems 4 remembering when to pay her bills.70 Then after February 2014, Plaintiff’s 5 psychiatric state was impacted because her medication was not filled due to an 6 insurance-dilemma. From late March through the date last insured in June 2014, 7 Plaintiff’s mental symptoms (and medical side effects) waxed.71 The ALJ did not 8
9 irritability, fair to low energy, depressed tone, more evident depression); AR 1510- 10 11 (Aug. 2013: mild to moderate irritability, fair to low energy, depressed tone, 11 impaired memory, fair concentration, and continued depression); AR 1512-13 (Aug 12 2013: depressed tone, impaired memory, and fair concentration); & AR 1518-19 13 (fair energy, tearful during session; memory is impaired; concentration is fair, and 14 more distress). 15 70 See, e.g., AR 1529-31; AR 1533 (Oct. 24, 2013: memory and concentration were 16 clinically improved, as well as her social, educational, and functioning approved); 17 AR 1536-39 (Nov. 2017: same). 18 71 See, e.g., AR 1684-85 (June 17, 2014: reporting difficulty pronouncing words and 19 generalized muscle cramping and stiffness, resulting from medication); AR 1575-78 20 (July 17, 2014: “She has become far more irritable since the Abilify was reduced . . . 21 . She punched a wall, she cannot manage her anger and irritability, and she is 22 more depressed.” And “[s]he was essentially without medication for a period of one 23 1 include any limitations for when Plaintiff’s mental impairments waxed. Instead, 2 the only non-exertional, non-positional, and non-environmental limitation in the 3 RFC limited Plaintiff to a low-stress job, which meant no assembly-line pace or 4 other fast-paced work, no management responsibility, and no responsibility for 5 ensuring the safety of others. As a result, the RFC did not include any limitations 6 to account for her reported poor memory, concentration, or temper-control when 7 her symptoms waxed. Moreover, the RFC did not account for Plaintiff’s claim that 8 her somatic symptom disorder (and other symptoms resulting from her depression, 9 PTSD, and anxiety) impact her ability to sustain her attention, concentration, and 10 memory for a full workday when her symptoms worsen. On remand, the ALJ is to 11 more meaningfully explain how the RFC sufficiently accounts for Plaintiff’s 12 symptoms during the relevant period when they worsened. 13 Second, the ALJ discounted Plaintiff’s symptom claims because they were 14 inconsistent with her “robust activities of daily living.”72 If a claimant can spend a 15 substantial part of the day engaged in pursuits involving the performance of 16 exertional or non-exertional functions, the ALJ may find these activities 17 18
19 month until she got her private insurance straightened out. She regressed 20 dramatically during this one month period and was forced to drop her college 21 classes. Her parenting became quite ineffective as well.”). 22 72 AR 25. 23 1 inconsistent with the reported disabling symptoms.73 Here, the activities cited by 2 the ALJ were that Plaintiff cared for children and pets, prepared meals, helped 3 with household chores like vacuuming and cleaning the toilet, drove, shopped in 4 stores, and scrapbooked. Plaintiff though testified that she interspersed these 5 activities throughout the day, week, or month due to her depression, pain, and 6 other symptoms.74 For instance, Plaintiff reported that she vacuumed and cleaned 7 the toilet and sink once a month.75 She reported that she shops every couple of 8 weeks for about an hour with assistance from her two teenage daughters.76 As to 9 scrapbooking, Plaintiff reported that she only scrapbooks about twice a year due to 10 pain.77 These monthly and bi-yearly activities are not “robust activities of daily 11 living,” even when considered with Plaintiff’s ability to care for her personal 12 hygiene. 13 Plaintiff did take college courses during part of the relevant time period, 14 with an accommodation that Plaintiff have a “distraction free environment for her 15 to take tests, as well as some additional time for test completion.”78 In the spring of 16
17 73 Molina, 674 F.3d at 1113. 18 74 AR 19 & 25. 19 75 AR 259. 20 76 AR 260. 21 77 AR 262. 22 78 AR 1478-79. 23 1 2013, Plaintiff enrolled in one community college class; she did well in this math 2 course.79 Then she took another class (Spanish) during the fall quarter of 2013, for 3 which she studied two hours a day and did well.80 Then during the next quarter, 4 she attempted two classes, Spanish 2 and an Excel spreadsheet class.81 Dr. 5 Williams noted that Plaintiff’s choice to take two college courses would be “the 6 limit of her potential for activity at this point when measured in hours per week” 7 and that “she is definitely not capable of full time gainful employment at this point 8 in time.”82 Then because of confusion between what insurer (state or private) was 9 to pay for Plaintiff’s medications, there was a month gap in her psychiatric 10 medications being filled.83 As a result, Plaintiff’s psychiatric condition worsened, 11 and she had to withdraw from her classes.84 It took until late August 2014 until 12 Plaintiff was back to the “mental baseline” that she was at in January 2014.85 13 Given that Plaintiff did not successfully complete more than one college course at a 14 time during the relevant time period, and she received testing accommodation, the 15
16 79 AR 1036 & 1484. 17 80 AR 1524-48. 18 81 AR 1049 & 1540. 19 82 AR 1553. 20 83 AR 1055. 21 84 AR 1055 & 1599. 22 85 AR 1599. 23 1 ALJ’s finding that Plaintiff’s college-course undertaking was “more mentally 2 demanding than the residual functional capacity [the ALJ] assigned” is not 3 supported by substantial evidence. 4 Lastly, the ALJ discounted Plaintiff’s symptom reports because they were 5 inconsistent with the objective medical evidence and clinical observations that the 6 ALJ deemed to be quite unremarkable, as she ambulated normally, her IQ scores 7 were above average, and her mental status exams were generally normal or 8 minimally abnormal. On remand, the ALJ is to explain why Plaintiff’s observed 9 normal ambulation served as a basis to discount her symptoms related to the pain 10 she experiences when reaching or bending her neck and back. In addition, as 11 discussed below in connection with the medical records, Plaintiff’s treating 12 psychologist and the examining mental-health physicians all agreed that Plaintiff 13 suffered from severe depression, notwithstanding her average or above-average IQ 14 scores. The assigned non-exertional limitations were not related to any IQ 15 deficiencies but rather memory, attention span, and behavioral limitations 16 resulting from her depression, PTSD, anxiety, somatic symptom disorder, and 17 medication side effects. On remand, the ALJ may not discount Plaintiff’s reported 18 symptoms based on irrelevant normal medical findings.86 19 Finally, assuming that the ALJ’s description of Plaintiff’s “mental status 20 exams [as] generally normal or minimally abnormal” is a reasonable finding 21
22 86 See Ghanim, 763 F.3d at 1164. 23 1 supported by substantial evidence, this sole reason, which is based on the ALJ’s 2 interpretation of the objective medical evidence (which did not include considering 3 somatic symptom disorder as an impairment), cannot serve as the sole basis on 4 which to discount Plaintiff’s symptom reports.87 5 In summary, Plaintiff establishes the ALJ erred by discounting Plaintiff’s 6 symptom reports. 7 C. Medical Opinions: Plaintiff establishes consequential error. 8 Plaintiff challenges the ALJ’s assignment of little weight to the treating 9 providers and assignment of great weight to the reviewing physicians. The ALJ’s 10 weighing of the medical opinions was based on an erroneous finding that Plaintiff’s 11 somatic symptom disorder was not a severe impairment during the relevant period. 12 As discussed below, this consequentially impacted the ALJ’s weighing of the 13 medical evidence given the significant interplay between Plaintiff’s medical and 14 psychological conditions. 15 16
17 87 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (recognizing that pain 18 complaints may not be fully corroborated by medical evidence); Rollins v. 19 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (recognizing that symptom reports 20 cannot be solely discounted on the grounds that they were not fully corroborated by 21 the objective medical evidence); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 22 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). 23 1 1. Standard 2 The weighing of medical-source opinions is dependent upon the nature of the 3 medical relationship, i.e., 1) a treating physician; 2) an examining physician who 4 examines but did not treat the claimant; and 3) a reviewing physician who neither 5 treated nor examined the claimant.88 Generally, more weight is given to the 6 opinion of a treating physician than to an examining physician’s opinion and both 7 treating and examining opinions are to be given more weight than the opinion of a 8 reviewing physician.89 9 When a treating physician’s or evaluating physician’s opinion is not 10 contradicted by another physician, it may be rejected only for “clear and 11 convincing” reasons, and when it is contradicted, it may be rejected for “specific 12 and legitimate reasons” supported by substantial evidence.90 A reviewing 13 physician’s opinion may be rejected for specific and legitimate reasons supported by 14 substantial evidence, and the opinion of an “other” medical source91 may be 15
16 88 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 17 89 Id.; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 18 90 Lester, 81 F.3d at 830. 19 91 See 20 C.F.R. § 404.1502 (For claims filed before March 27, 2017, acceptable 20 medical sources are licensed physicians, licensed or certified psychologists, licensed 21 optometrists, licensed podiatrists, qualified speech-language pathologists, licensed 22 audiologists, licensed advanced practice registered nurses, and licensed physician 23 1 rejected for specific and germane reasons supported by substantial evidence.92 The 2 opinion of a reviewing physician serves as substantial evidence if it is supported by 3 other independent evidence in the record.93 4 2. Non-Exertional-Limitations Opinions 5 Shortly after her workplace injury in January 2009, Plaintiff began 6 psychotherapy with Dr. Williams. Her therapy with Dr. Williams continued for at 7 least eight years. Her therapy sessions with Dr. Williams were approximately 8 weekly until October 2015, when they changed to monthly or less.94 As he treated 9 Plaintiff and adjusted her medications, Dr. Williams’ diagnoses changed slightly, 10 but near June 2014 (date last insured), he diagnosed Plaintiff with major 11 depressive disorder recurrent mild, posttraumatic stress disorder, somatic 12 symptom disorder with predominant pain persistent moderate, unspecified anxiety 13 disorder, and personality trait disturbances.95 Although Dr. Williams opined on 14 occasion that Plaintiff could perform part-time work (or take college course(s)), Dr. 15 Williams consistently opined through the relevant period that Plaintiff was unable 16
17 assistants within their scope of practice—all other medical providers are “other” 18 medical sources.). 19 92 Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 20 93 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 21 94 See AR 1752 (indicating the change to monthly sessions). 22 95 AR 1684 (June 17, 2014). 23 1 to return to fulltime work.96 In October 2015, Dr. Williams completed a Mental 2 Residual Functional Capacity Assessment and opined that Plaintiff’s abilities to: 3 interact appropriately with the general public, ask simple questions or 4 request assistance, accept instructions and respond appropriately to 5 criticism from supervisors, maintain socially appropriate behavior and 6 adhere to basic standards of neatness and cleanliness, and travel in 7 unfamiliar places or use public transportation were not impaired; 8 carry out very short and simple instructions, work in coordination 9 with or proximity to others without being districted by them, and be 10 aware of normal hazards and take appropriate precautions were 11 mildly impaired; 12 remember locations and work-like procedures, get along with 13 coworkers or peers without distracting them or exhibiting behavioral 14 extremes, and set realistic goals or makes plans independently of 15 others were moderately impaired; and 16 understand and remember detailed instructions; carry out detailed 17 instructions; maintain attention and concentration for extended 18 periods; perform activities within a schedule, maintain regular 19 attendance, and be punctual within customary tolerances; sustain an 20
21 96 See, e.g., AR 1251, 1258, 1323, 1366, 1368, 1373, 1378, 1382, 1395, 1454, 1543, 22 1553, & 1587. 23 1 ordinary routine without special supervision; make simple work- 2 related decisions; complete a normal workday and workweek without 3 interruptions from psychologically based symptoms and perform at a 4 consistent pace without an unreasonable number and length of rest 5 periods; and respond appropriately to changes in the work setting 6 were markedly limited.97 7 The ALJ gave little weight to Dr. Williams’ opinions for the “reasons Dr. Winfrey 8 outlined” and because Dr. Williams’ opinions were inconsistent with the GAF 9 scores of 65 that Dr. Williams assigned in June 2014 and much of the preceding 10 year.98 11 First, as to Dr. Winfrey, the ALJ did not identify “the reasons Dr. Winfrey 12 outlined.” But during the administrative hearing, Dr. Winfrey testified that 13 treating providers, from September 2011 to June 2014, diagnosed Plaintiff with 14 major depressive disorder, unspecified anxiety disorder, and some cognitive 15 disorder due to head injury.99 As mentioned above, Dr. Winfrey determined that 16 somatic symptom disorder was not diagnosed before June 30, 2014.100 Dr. Winfrey 17 also determined that the record reflected that Plaintiff did not have any cognitive 18
19 97 AR 668-69. 20 98 AR 26. 21 99 AR 49. 22 100 AR 50. 23 1 disorder given her cognitive test results on July 24, 2012, and the fact that she was 2 getting As in her accounting classes.101 Based on Plaintiff’s travel to her daughter’s 3 soccer game, attending college classes, and being described as articulate and 4 analytical during a May 19, 2015102 counseling session, Dr. Winfrey opined that 5 Plaintiff’s ability to understand, remember, and apply information was at the most 6 mildly impaired; her ability to interact with others was moderately impaired; her 7 ability to concentrate, persist, and maintain pace was mildly impaired, and her 8 ability to adapt or manage herself was mildly impaired.103 Dr. Winfrey opined that 9 Plaintiff had no limitations about “instructions or things of that nature but I think 10 she should have a low stress job to keep that anxiety down,” and so she should not 11 manage a team or have a quick production quota.104 Dr. Winfrey advised that she 12 disagreed with Dr. Williams’ no-work opinion as it was inconsistent with Plaintiff’s 13 cognitive test-score results and her ability to do well at her college classes.105 The 14 ALJ gave great weight to Dr. Winfrey’s opinion because 1) she had the opportunity 15
16 101 AR 51. 17 102 Dr. Winfrey stated the noted observation was from May 19, 2014. AR 52. 18 However, these observations were made by Dr. Williams in May 2015, which is 19 after the date last insured of June 2014. 20 103 AR 51-52. 21 104 AR 52-53. 22 105 AR 55-56. 23 1 to review the entire longitudinal medical record, 2) gave reasonable explanations 2 for her opinion, and 3) had Social Security disability-program knowledge.106 3 Nevertheless, the ALJ did find that Plaintiff was moderately limited in her ability 4 to adapt and manage herself, rather than mildly limited in this ability as Dr. 5 Winfrey opined.107 6 The extent to which a medical source is “familiar with the other information 7 in [the claimant’s] case record” is relevant in assessing that source’s medical 8 opinion.108 While Dr. Winfrey had the opportunity to review the entire file, Dr. 9 Williams issued the bulk of the treating psychological records, which spanned more 10 than eight years, and he reviewed the examining psychological evaluations 11 conducted by Kenneth Muscatel, Ph.D., Frederick Montgomery, M.D., David 12 Bachman, Psy.D., and Richard Schneider, M.D.109 In addition, Dr. Williams 13
14 106 AR 26. 15 107 Id. 16 108 20 C.F.R. § 404.1527(c)(6). 17 109 See AR 557-64, 585-99, 645-58, 741-68, 819-31, 1125, 1165, 1227, 1231-34, 1265, 18 1308, 1311, 1316-17, 1460-61, & 1692-98. Plaintiff also argues the ALJ erred by not 19 assigning weight to Dr. Bachman’s or Dr. Montgomery’s evaluations. However, 20 these evaluations did not include functional limitations and so the ALJ did not err 21 by not assigning weight to these evaluations. See Turner v. Comm’r of Soc. Sec., 22 613 F.3d 1217, 1223 (9th Cir. 2010); Valentine v. Comm’r, Soc. Sec. Admin., 574 23 1 conferred with Dr. Muscatel about his findings and Plaintiff’s treatment.110 Dr. 2 Williams also conferred with Plaintiff’s treating provider about her physical 3 conditions and was aware of Plaintiff’s diagnosed medical conditions and treatment 4 for such, including surgeries and physical therapy. Given that Dr. Williams created 5 and/or reviewed most, if not all, of the relevant psychological records, the ALJ must 6 more meaningfully explain why Dr. Winfrey was more familiar with the relevant 7 information in Plaintiff’s case record than Dr. Williams, if the ALJ on remand is to 8 give more weight to Dr. Winfrey’s opinion for this reason.111 9 10 11 12
13 F.3d 685, 691 (9th Cir. 2009). Yet, on remand, the ALJ is to consider these 14 evaluations when assessing whether Dr. Williams’ opinions were consistent with 15 and supported by the longitudinal medical record. 16 110 AR 1125, 1229, 1231, 1234, 1236, 1239, 1258, & 1263. 17 111 See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (requiring the ALJ to 18 identify the evidence supporting the found conflict to permit the Court to 19 meaningfully review the ALJ’s finding); Blakes v. Barnhart, 331 F.3d 565, 569 (7th 20 Cir. 2003) (“We require the ALJ to build an accurate and logical bridge from the 21 evidence to her conclusions so that we may afford the claimant meaningful review 22 of the SSA’s ultimate findings.”) 23 1 Next, the Social Security regulations “give more weight to opinions that are 2 explained than to those that are not.”112 “[T]he ALJ need not accept the opinion of 3 any physician, including a treating physician, if that opinion is brief, conclusory 4 and inadequately supported by clinical findings.”113 However, if treatment notes 5 are consistent with the opinion, a conclusory opinion, such as a check-the-box form, 6 may not automatically be rejected.114 Here, the ALJ found that Dr. Winfrey’s 7 testamentary opinion was more supported than Dr. Williams’ opinions, which were 8 accompanied by years of treatment records. However, as explained above, Dr. 9 Winfrey failed to recognize that Plaintiff had been diagnosed with somatic 10 symptom disorder. On remand, the ALJ is to reassess the extent to which the 11 medical opinions were supported by and consistent with the medical evidence. 12 As to Dr. Winfrey’s knowledge as to Social Security disability requirements, 13 the amount of an acceptable medical source's knowledge of Social Security 14 disability programs and their evidentiary requirements may be considered in 15 16
17 112 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 20 C.F.R. 18 404.1527). 19 113 Bray v. Commissioner, 554 F.3d 1219, 1228 (9th Cir. 2009). 20 114 See Garrison, 759 F.3d at 1014 n.17; see also Trevizo v. Berryhill, 871 F.3d 664, 21 677 n.4 (9th Cir. 2017) (“[T]here is no authority that a ‘check-the-box’ form is any 22 less reliable than any other type of form”). 23 1 evaluating an opinion.115 However, this factor by itself is an insufficient basis to 2 give more weight to Dr. Winfrey’s opinion than Dr. Williams’ treating opinion if the 3 basis for Dr. Williams’ no-work opinion is consistent with the Social Security’s 4 evidentiary requirements. 5 As to the ALJ’s decision to discount Dr. Williams’ opinion because it was 6 inconsistent with Plaintiff’s GAF scores,116 the ALJ later in the opinion recognized 7 that the Commissioner has declined to endorse GAF scales in reviewing Social 8 Security claims as they do not have a direct correlation to the severity of a mental 9 disorder.117 Therefore, the ALJ gave little weight to the GAF scores “because they 10 11
12 115 20 C.F.R. § 404.1527. 13 116 Global Assessment of Functioning (GAF) scores represent a “clinician’s 14 judgment of the individual’s overall level of functioning.” American Psychiatric 15 Association, Diagnostic & Statistical Manual of Mental Disorders (“DSM-IV-TR”) 16 32 (4th ed. 2000). The scale is divided into ten ranges reflecting different levels of 17 functioning, with 1–10 being the lowest and 91–100 the highest. Id. DSM-V 18 dropped the GAF “for several reasons, including its lack of conceptual clarity (i.e., 19 including symptoms, suicide risk, and disabilities in its descriptors) and 20 questionable psychometrics in routine practice.” American Psychiatric Association, 21 Diagnostic & Statistical Manual of Mental Disorders 16 (5th ed. 2013). 22 117 AR 28. 23 1 are not standardized and the scores were largely given without any explanation.”118 2 Nonetheless, the ALJ gave “some weight to the general upward trend [of the GAF 3 scores] reflected in the psychiatric treatment notes (from 42 to 55 to 60-65)” and 4 therefore discounted Dr. Williams’ no-work opinions on this basis.119 5 The ALJ’s finding that Plaintiff’s GAF scores generally trended upward is 6 supported by substantial evidence. However, even when Plaintiff’s scores trended 7 upward they continued to border between two GAF ranges—51-60 and 61-70— 8 only staying fully above 61 once in 2010 and then in June 2013.120 A GAF score of 9
10 118 Id. 11 119 Id. 12 120 GAF scores during and near the relevant time frame (when not otherwise 13 indicated, the GAF score was authored by Dr. Williams): AR 592 (Sept. 2, 2011: 14 Bachman, GAF 45); AR 1304-18 (Sept. 8 to Oct. 26, 2011: GAF 60); AR 1322-40 15 (Nov. 17 & Dec. 1, 2011: GAF 55-60); AR 1344 (Jan. 5, 2012: GAF 45); AR 1349 16 (Jan. 12, 2012: GAF 50); AR 1351 (Feb. 2, 2012: GAF 55); AR 1353 (Feb. 9, 2012: 17 GAF 45-50); AR 583 & 1362-66 (Feb. 16 to March 8, 2012: GAF 55-60); AR 1368-75 18 (March 15-29, 2012: GAF: 60); AR 1377-79 (Apr. 19 & 26, 2012: GAF 50-60); AR 19 1384-1428 (May 3 to Oct. 11, 2012: GAF 55-65); AR 819 (July 24, 2012: Bachman, 20 GAF 55-65); AR 1429-38 (Oct. 18 to Nov.15, 2012: GAF 60-65); AR 1439-56 (Nov. 21 29, 2012, to Jan. 24, 2013: GAF 60); AR 1457-92 (Jan. 31 to May 30, 2013: GAF 60- 22 65); AR 839 (Feb. 12, 2013: Bachman, GAF 60-65); AR 1494-1502 (June 6-20, 2013: 23 1 51-60 represents moderate symptoms (e.g., flat and circumstantial speech, 2 occasional panic attacks) or moderate difficulty in social, occupational, or school 3 functioning (e.g., few friends, conflicts with co-workers).121 A GAF score of 61-70 4 represents some symptoms (e.g., depressed mood and mild insomnia) or some 5 difficulty in social, occupation, or school functioning (e.g., occasional truancy, or 6 theft with the household), but generally functioning pretty well, has some 7 meaningful interpersonal relationships.122 8 To the extent the ALJ gave the GAF score-trend weight, the ALJ rationally 9 found that Plaintiff’s GAF scores of 61 or more were inconsistent with Dr. 10 Williams’ opinion that Plaintiff could not sustain any full-time work. However, 11 during the relevant time frame Plaintiff’s GAF scores waxed and waned and often 12 included a GAF score in the moderate-limitation range. On remand, the ALJ is to 13 14
15 GAF 65); AR 1502-06 (July 18 & 25, 2013: GAF 55-60); AR 1510-1512 (Aug. 7 & 15, 16 2013: GAF 55); AR 1514 (Aug. 29, 2013: GAF 55-65); AR 1518 (Sept. 5, 2013: GAF 17 55-60); AR 1520-30 (Sept. 12 to Oct. 17, 2013 (GAF 60); AR 1532-34 (Oct. 24 & 31, 18 2013: GAF 60-65); AR 654 (Schneider, Nov. 19, 2013: GAF 66); AR 1536-45 (Nov. 7, 19 2013, to Jan. 30, 2014: GAF 65); AR 1566-70 (Feb. 18-27, 2014: GAF 60-65); AR 20 1575 (July 17, 2014: GAF 50-55). 21 121 DSM-IV-TR. 22 122 Id. 23 1 consider whether additional restrictions to the RFC are required to reflect the 2 waxing of Plaintiff’s mental conditions.123 3 Finally, on remand, if the ALJ continues to give great weight to Dr. John 4 Gilbert’s reviewing opinion, the ALJ is to incorporate his opinion that Plaintiff had 5 moderate limitations in interacting appropriately with the general public and 6 getting along with coworkers or peers without distracting them or exhibiting 7 behavioral extremes into the RFC, or explain how the RFC accounts for these 8 moderate limitations if accepted.124 9 3. Exertional-Limitations Opinions 10 On remand, the ALJ is to reweigh the medical opinions regarding Plaintiff’s 11 exertional limitations. When doing so, the ALJ is to consider that several of the 12 opinions released Plaintiff to “light duty,” a term of art for Washington State 13 Department of Labor and Industries’ purposes. “Light duty” for Labor and 14 Industries’ purposes has a different meaning than “light work” for Social Security 15 disability purposes. 16 “Light duty” for Labor and Industries’ purposes pertains to transitional work 17 to assist the worker to return to work, such as working shorter hours, performing 18 different duties with lighter physical demands than the prior job, or adjusting job 19 or worksite to meet physical limitations by providing tools, equipment, or 20
21 123 See, e.g., Goff v. Barnhart, 421 F.3d 785, 789, 791, 793 (8th Cir. 2005). 22 124 AR 106-07. 23 1 appliances.125 Whereas, “light work” for Social Security purposes “involves lifting 2 no more than 20 pounds at a time with frequent lifting or carrying of objects 3 weighing up to 10 pounds . . . [and] requires a good deal of walking or standing, or . 4 . . sitting most of the time with some pushing and pulling of arm or leg controls.”126 5 The distinction between these terms is important as the medical providers 6 treating Plaintiff’s injuries resulting from her 2009 workplace injury were issuing 7 opinions for Labor and Industries’ purposes and therefore the terminology used is 8 to be interpreted in the context the medical records and opinions were issued.127 9 The Court is uncertain whether the ALJ appreciated this distinction and how it 10 impacted the ALJ’s weighing of the medical opinions.128 11
12 125 Available at https://lni.wa.gov/claims/for-workers/getting-back-to-work/light- 13 duty-job (last viewed April 17, 2020). 14 126 20 C.F.R. 404.1567(b). 15 127 See Orn v. Astrue, 495 F.3d 625, 634 (9th Cir. 2007) (“The primary function of 16 medical records is to promote communication and recordkeeping for health care 17 personnel—not to provide evidence for disability determinations.”). 18 128 See, e.g., T.H. Palmatier, M.D.: AR 1002-03 (March 2011: “Light duty work 19 return considering her physical issues would be expedited by the orthopedic 20 evaluation that is still pending regarding the right shoulder issues as well as 21 follow-up with Dr. Atteberry planned next month.”); AR 1021 (May 2012: “I am 22 hoping that she will continue to improve as she has been doing and that we will be 23 1 For instance, the ALJ discounted physical therapist Kirk Holle’s July 2014 2 evaluation,129 instead agreeing with “the medical expert [Dr. Morse] that the 3 longitudinal record demonstrated greater capabilities.”130 Dr. Morse, however, 4 testified that he could not comment on Mr. Holle’s physical-therapist opinion 5 because physical therapists use different discipline language and criteria than Dr. 6
7 able to give her a light duty release from a physical perspective at least.”); AR 1040 8 (June 2013: “EMPLOYABILITY: light duty work”). Christopher Benner, ARNP: 9 AR 1039 (May 2013: “employable to light duty”); AR 1041-46 (Aug. to Dec. 2013: 10 same). Glenda Abercrombie, ARNP: AR 936 (Feb. 2014: work modified duty for four 11 hours); AR 1051 (March 2014: “released to a light duty work status”); AR 937 12 (March 2014: may perform modified work with seldom reaching and working above 13 shoulders and only occasionally lifting of ten pounds); AR 1053-56 (Apr. and June 14 2014: “released to a light duty work status”); AR 938 (may perform modified work 15 with seldom work above right shoulder and only occasional lifting and carrying of 16 ten pounds). Kirk Holle, P.T.: AR 889 (July 2014: recommended “light duty 17 position”). See also AR 729 (Dr. Montgomery’s psychological evaluation: “I would 18 only add to encourage her to return to some type of cognitive work activity as a 19 volunteer or return to work in light duty to facilitate intellectual activity prior to 20 any further neuropsychological examinations.”). 21 129 AR 866-91. 22 130 AR 27. 23 1 Morse’s medical community.131 There is no meaningful explanation on this record 2 as to why a physical therapist’s language and criteria, if different, would impact 3 Mr. Holle’s observed findings as to Plaintiff’s lifting and carrying abilities, which 4 result in more restrictive functional limitations than those contained in the RFC 5 and hypotheticals two and three.132 Moreover, Mr. Holle’s lifting restrictions were 6 generally consistent with the 2013 medical examiner’s opinion that Plaintiff could 7 occasionally lift up to ten pounds, which is less than light work’s frequent 8 lifting/carrying of ten pounds.133 9 Also, for purposes of remand, the Court notes that the ALJ summarily 10 concluded that, because Dr. Gibbons’, PA-C Nicholaus’, and Nurse Abercrombie’s 11 checkbox forms indicated that Plaintiff was not released to work for periods less 12 than a year, these providers found Plaintiff’s limitations temporary in nature.134 13 Temporary limitations are not enough to meet the durational requirement for a 14 15
16 131 AR 48. 17 132 See AR 866-91 (July 2014: Mr. Holle recommended sedentary work with the 18 ability to change position every hour, lifting ten pounds occasionally from waist to 19 shoulder, all other lifting and carrying limited to seldom, and seldom reaching 20 overhead with right upper extremity.). 21 133 AR 630. 22 134 AR 27. 23 1 finding of disability.135 Here, however, the ALJ must be mindful that these 2 opinions were being issued for Labor and Industries’ purposes and must consider 3 the cumulative impact of each of these short-duration opinions pertaining to 4 Plaintiff’s shoulder and neck injuries. And the ALJ may not summarily dismiss 5 these as check-box opinions to the extent they are supported by treating notes. 6 D. Consequential Errors: The ALJ must reevaluate all steps. 7 The Commissioner argues that the ALJ’s errors were harmless because the 8 vocational expert testified that there were available jobs (waxer, masker, and lens 9 insert) for an alternative RFC that included simple, routine, repetitive tasks; 10 routine predictable work environment with no more than occasional changes; and 11 no more than superficial contact with the public, coworkers, and supervisors. The 12 vocational expert also testified, however, that if Plaintiff is off task more than 10 13 percent, misses more than one day of work per month, or if she is restricted to 14 occasional fingering with her dominant hand, these jobs would not be available.136 15 16
17 135 20 C.F.R. § 404.1520 (requiring a claimant’s impairment to be expected to last 18 for a continuous period of not less than twelve months); 42 U.S.C. § 423(d)(1)(A) 19 (same); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 20 2008) (affirming the ALJ’s finding that treating physicians’ short-term excuse from 21 work was not indicative of “claimant’s long-term functioning”). 22 136 AR 72-77. 23 1 Accordingly, it is not clear that the ALJ’s errors as to Plaintiff’s somatic 2 symptom disorder and weighing of Plaintiff’s testimony and the medical opinions 3 are harmless. The ALJ on remand is to proceed with a new sequential analysis, 4 including reassessing Plaintiff’s RFC. 5 E. Remand for Further Proceedings 6 Plaintiff submits a remand for payment of benefits is warranted. 7 The decision whether to remand a case for additional evidence, or simply to 8 award benefits is within the discretion of the court.”137 When the court reverses an 9 ALJ’s decision for error, the court “ordinarily must remand to the agency for 10 further proceedings.”138 However, the Ninth Circuit has “stated or implied that it 11 would be an abuse of discretion for a district court not to remand for an award of 12 benefits” when three credit-as-true conditions are met and the record reflects no 13 serious doubt that the claimant is disabled.139 14
16 137 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 17 761 F.2d 530 (9th Cir. 1985)). 18 138 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 19 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is 20 to remand to the agency for additional investigation or explanation”); Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 22 139 Garrison, 759 F.3d at 1020 (9th Cir. 2014) (citations omitted). 23 1 Here, even if Plaintiff’s somatic symptom disorder is considered severe, it is 2 not clear what additional exertional and non-exertional limitations are to be added 3 to the RFC. Therefore, additional proceedings are necessary to determine whether 4 Plaintiff is disabled. Remand for further proceedings, rather than for an award of 5 benefits, is necessary.140 On remand, the ALJ is to consider Plaintiff’s somatic 6 symptom disorder as a severe impairment, reweigh Plaintiff’s symptom reports and 7 the medical-opinion evidence, and reevaluate the sequential process. 8 V. Conclusion 9 Accordingly, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is GRANTED. 11 2. The Commissioner’s Motion for Summary Judgment, ECF No. 11, is 12 DENIED. 13 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 14 REVERSING and REMANDING the matter to the Commissioner of 15 Social Security for further proceedings pursuant to sentence four of 42 16 U.S.C. § 405(g). 17 /// 18 /// 19 /// 20 /// 21
22 140 See id. at 1021; Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). 23 1 4. The case shall be CLOSED. 2 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order, 3 provide copies to all counsel, and close the file. 4 DATED this 10th day of June 2020. 5
s/Edward F. Shea _____________ 6 EDWARD F. SHEA Senior United States District Judge 7 8 9 10 11
12 13 14 15 16 17 18 19 20 21 22 23