Pena v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 21, 2020
• Docket: 3:20-cv-05230
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 PATRICIA P., 9 Plaintiff, Case No. C20-5230-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for Supplemental Security Income. 15 Plaintiff contends the administrative law judge (“ALJ”) erred by failing to incorporate limitations 16 from two medical opinions he accepted, and by rejecting two medical opinions and Plaintiff’s 17 testimony. (Dkt. # 32.) As discussed below, the Court REVERSES the Commissioner’s final 18 decision and REMANDS the matter for further administrative proceedings under sentence four 19 of 42 U.S.C. § 405(g). 20 II. BACKGROUND 21 Plaintiff was born in 1977, has a limited education, and has no past relevant work. AR at 22 408. She was last gainfully employed in 2007. Id. at 430-31. Plaintiff was awarded benefits in 23 24 1 2012 because her depressive disorder met the criteria of a listed impairment. Id. at 483. Benefits 2 ceased when Plaintiff went to prison. Id. at 398. 3 Plaintiff applied again for benefits in December 2016, alleging disability as of August 24, 4 2010. AR at 398. Plaintiff’s applications were denied initially and on reconsideration, and 5 Plaintiff requested a hearing. Id. at 487, 498, 525-26. After the ALJ conducted a hearing in

6 September 2018, the ALJ issued a decision finding Plaintiff not disabled since her December 7 2016 application date. Id. at 415-76, 398-409. In pertinent part, at step two of the five-step 8 disability determination1 the ALJ found Plaintiff had the severe impairments of major depressive 9 disorder with psychotic features, posttraumatic stress disorder, generalized anxiety disorder, and 10 personality disorder. Id. at 400. She was limited to simple, routine work with few changes, no 11 fast-paced environment, no public interaction and occasional coworker interaction. Id. at 403. 12 With this Residual Functional Capacity (“RFC”), at step five the ALJ found Plaintiff could 13 perform jobs such as hand packager, marker, and garment sorter. Id. at 408. 14 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the

15 Commissioner’s final decision. AR at 1-4. Plaintiff appealed the final decision of the 16 Commissioner to this Court. (Dkt. # 1.) 17 III. LEGAL STANDARDS 18 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 19 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 20 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 21 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 22 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 23

24 1 See 20 C.F.R. § 416.920. 1 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 2 alters the outcome of the case.” Id. 3 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 4 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 5 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th

6 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 7 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 8 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 9 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 10 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 11 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 12 IV. DISCUSSION 13 A. The ALJ Erred by Failing to Include Limitations Opined by State Agency Reviewing Doctors Rita Flanagan, Ph.D., and Eugene Kester, M.D. 14 In evaluating a medical opinion, an ALJ must either accept the opinion and incorporate 15 its limitations into the RFC or explain why the opinion was rejected. SSR 96-8p, 1996 WL 16 374184, at *7 (Jul. 2, 1996) (“If the RFC assessment conflicts with an opinion from a medical 17 source, the adjudicator must explain why the opinion was not adopted.”). Dr. Flanagan and Dr. 18 Kester opined Plaintiff was only capable of “superficial interaction with supervisors and a 19 limited number of coworkers….” AR at 495, 511. The ALJ gave their opinions “significant 20 weight” because they were consistent with the medical evidence and Plaintiff’s demonstrated 21 functioning. Id. at 405. The ALJ restricted Plaintiff to “occasionally interact[ing] with co- 22 workers.” Id. at 403. However, the ALJ failed to include in the RFC any limitation on the 23 number of coworkers or on interactions with supervisors. The Commissioner argues the “ALJ 24 1 reasonably construed a vague term, … ‘limited,’ as meaning only occasional contact.” (Dkt. # 33 2 at 9.) But in the doctors’ opinions “limited” refers to the number of coworkers, not the level of 3 contact with them, which is restricted to “superficial.” In the RFC, in contrast, the number of 4 coworkers is unlimited. The ALJ erred by failing to include all of Dr. Flanagan’s and Dr. 5 Kester’s opined limitations in the RFC.

6 The Commissioner argues the error is harmless because, in the jobs the ALJ relied on at 7 step five, the level of interpersonal interaction required is “[n]ot [s]ignificant” and a requirement 8 for talking is “[n]ot [p]resent.” (Dkt. # 33 at 10.) “Not significant” is sufficiently similar to 9 “superficial” to show the ALJ’s error in failing to restrict supervisor and coworker contact to a 10 superficial level was harmless. However, the level of interaction is distinct from the number of 11 people with whom Plaintiff would be required to interact. Dr. Flanagan’s and Dr. Kester’s 12 opinions prohibit interaction, however minimal, with dozens or hundreds of coworkers. The 13 record does not reveal how many coworkers Plaintiff would have in the jobs the ALJ relied on at 14 step five. At step five, it is the Commissioner who bears the burden to show that a claimant is not

15 disabled because she can perform work that exists in significant numbers in the national 16 economy. 20 C.F.R. § 416.960(c)(2). It is thus the Commissioner’s burden to show the jobs 17 identified are consistent with Plaintiff’s RFC. The Commissioner has not met that burden. 18 The Court concludes the ALJ harmfully erred by excluding Dr. Flanagan’s and Dr. 19 Kester’s limitation on the number of coworkers with whom Plaintiff can interact. 20 \\ 21 \\ 22 23 24 1 B. The ALJ Did Not Err by Discounting Other Medical Opinions 2 1. The ALJ Did Not Err by Discounting the Opinions of Examining Doctor Kimberly Wheeler, Ph.D. 3 Dr. Wheeler opined Plaintiff was unable to maintain punctual attendance, communicate 4 and perform effectively, and complete a normal work day and work week, and was markedly 5 limited in her ability to adapt to changes, request assistance, and plan realistically. AR at 1200. 6 The ALJ could only reject these opinions for “specific and legitimate” reasons. Revels v. 7 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). The ALJ gave Dr. Wheeler’s opinions little weight 8 as inconsistent with objective treatment notes and Plaintiff’s activities of daily living. AR at 9 407.2 10 The ALJ found notes “made pursuant to actual treatment” were more persuasive than Dr. 11 Wheeler’s observations from a “one time exam,” in part because Plaintiff’s “limited effort in a 12 consultative exam supports a finding that more weight should be given to mental status findings 13 in the claimant’s treatment notes.” AR at 407. The parties dispute whether Dr. Wheeler’s 14 observations actually indicated limited effort, or rather Plaintiff’s extreme anxiety at the 15 examination. Regardless, the ALJ permissibly gave more weight to repeated consistent 16 observations throughout the record than to one-time observations. Cf. Ford v. Saul, 950 F.3d 17 1141, 1156 (9th Cir. 2020) (specific and legitimate reasons for rejecting examining doctor’s 18 opinion include inconsistency with objective evidence in the medical record as a whole). 19 Plaintiff contends some of the cited treatment notes, containing only brief observations 20 that Plaintiff was “[c]ooperative” with “normal,” “calm,” or “[a]ppropriate” mood and affect in 21 the context of physical examinations, provided insufficient reason to discount Dr. Wheeler’s 22 23 2 The ALJ also noted Dr. Wheeler performed a “one time exam,” but the Commissioner acknowledges 24 this is insufficient, alone, to discount a medical opinion. AR at 407; (Dkt. # 33 at 14). 1 more in-depth examination. See, e.g., AR at 1066, 770, 828, 831. However, even notes from 2 appointments specifically for mental health treatment contain largely normal findings. During 3 therapy appointments, mental status examination results were entirely normal except for mood or 4 affect. Even mood and affect were normal in a substantial proportion of the appointments. 5 Compare id. at 746, 799, 801, 806 (all note “calm” mood); 810 (“good” mood); 903 (“doing

6 better”); 906 (“fine”) with id. at 797 (anxious, irritable, sad), 803 (anxious), 808 (anxious, flat, 7 guarded), 810 (anxious, flat affect), 814 (blunted, flat affect), 818 (affect blunted, anxious), 910 8 (“up and down”), 914 (“moody”). Dr. Wheeler observed “[i]ntensely anxious, dysphoric” mood, 9 which was directly inconsistent with the repeated observations of Plaintiff’s treating providers of 10 normal or mildly abnormal mood. Id. at 1201. 11 Plaintiff contends “the Ninth Circuit has expressed a general preference for interpretive 12 opinions over raw data to establish facts.” (Dkt. # 34 at 5.) While doctors’ opinions are valued 13 for their expertise at interpreting raw data, here the ALJ discounted Dr. Wheeler’s opinions as 14 based on raw data that was likely inaccurate, as evidenced by conflict with the longitudinal

15 treatment record. This was a specific and legitimate reason to discount Dr. Wheeler’s opinions. 16 The Court need not address the ALJ’s additional reason of conflict with Plaintiff’s 17 activities because, even if erroneous, its inclusion was harmless. See Molina, 674 F.3d at 1117 18 (error harmless if “inconsequential to the ultimate disability determination”); Carmickle v. 19 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) (inclusion of erroneous reasons 20 harmless because “remaining valid reasons supporting the ALJ’s determination are not 21 ‘relatively minor’”). The Court concludes the ALJ did not err by discounting Dr. Wheeler’s 22 opinions. 23 24 1 2. The ALJ Did Not Err by Discounting the Opinions of Non-examining Doctor Phyllis N. Sanchez, Ph.D. 2 In December 2016, Dr. Sanchez reviewed a summary of Plaintiff’s records and opined 3 she had marked limitations in adapting to changes, communicating and performing effectively, 4 maintaining appropriate behavior, completing a normal work day and work week, and planning 5 realistically. AR at 715. An ALJ “may reject the opinion of a non-examining physician by 6 reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 7 (9th Cir. 1998). The ALJ gave little weight to Dr. Sanchez’s opinions as inconsistent with the 8 same medical evidence as for Dr. Wheeler’s opinions. AR at 406. The almost entirely normal 9 mental status examination findings throughout the medical record provided a sufficient reason to 10 discount Dr. Sanchez’s opinions. 11 The Court need not address the ALJ’s additional reasons, improvement with treatment 12 and conflict with Plaintiff’s activities, because any error is harmless. The Court concludes the 13 ALJ did not err by discounting Dr. Sanchez’s opinions. 14 C. The ALJ Erred by Discounting Plaintiff’s Testimony 15 Where, as here, an ALJ determines a claimant has presented objective medical evidence 16 establishing underlying impairments that could cause the symptoms alleged, and there is no 17 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to 18 symptom severity by providing “specific, clear, and convincing” reasons supported by 19 substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 20 The ALJ discounted Plaintiff’s testimony that anxiety prevents her from working as 21 inconsistent with the medical evidence, her activities, and improvement with treatment. AR at 22 405. 23 24 1 1. Conflict with Medical Evidence 2 The ALJ discounted Plaintiff’s testimony because generally normal psychiatric findings 3 were “inconsistent with the severity of symptoms alleged.” AR at 405. However, once Plaintiff 4 established her impairments could cause the symptoms alleged, “lack of medical evidence cannot 5 form the sole basis” for rejecting testimony as to symptom severity. Burch v. Barnhart, 400 F.3d

6 676, 681 (9th Cir. 2005). 7 The Commissioner contends the medical evidence not only failed to support, but 8 contradicted, Plaintiff’s testimony. (Dkt. # 33 at 6-7.) “Contradiction with the medical record is a 9 sufficient basis for rejecting a claimant’s subjective testimony.” Carmickle, 533 F.3d at 1161. 10 However, the Commissioner fails to identify a genuine contradiction. The Commissioner points 11 to normal memory findings and mild or occasionally normal concentration findings, but fails to 12 consider Plaintiff’s reports of forgetfulness and distractibility may be caused indirectly by 13 anxiety rather than directly by cognitive deficits. The Commissioner points to a calm, pleasant, 14 cooperative demeanor with doctors, but this does not contradict Plaintiff’s testimony of internal

15 anxiety. 16 Conflict with the medical evidence was not a clear and convincing reason to discount 17 Plaintiff’s testimony. 18 2. Activities 19 An ALJ may discount a claimant’s testimony based on daily activities that contradict her 20 testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). “Only if the level of activity were 21 inconsistent with Claimant’s claimed limitations would these activities have any bearing on 22 Claimant’s credibility.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ cited 23 activities of preparing her own meals, handling personal care, taking public transportation, 24 1 spending time with her family and one friend, handling her finances, and doing some household 2 cleaning. AR at 405. The ALJ failed to explain how these activities contradict any of her 3 testimony, such as panic attacks, racing thoughts, distraction, lack of energy, or difficulty being 4 around people. See id. at 452-53, 457-58, 464-66, 623, 628, 655. Plaintiff reported she only 5 makes frozen dinners, peanut butter sandwiches, and cereal, none of which require substantial

6 concentration. Id. at 625, 652. She only reported “clean[ing] after [her]self” and only for 30 7 minutes to an hour. Id. Being around family members and one friend was not a clear and 8 convincing reason to discount testimony of difficulty being around other people. The 9 Commissioner contends that, at step three, the ALJ found using public transportation, attending 10 church, and interacting during her hearing before the ALJ contradicted Plaintiff’s testimony of 11 difficulty leaving the house. (Dkt. # 33 at 5.) Neither attending a one-time hearing, nor Plaintiff’s 12 extremely minimal activities of going once or twice a week to medical appointments, church, or 13 the store for basic hygiene and food necessities, contradicts Plaintiff’s testimony. See AR at 626- 14 27, 653-54. She did not testify that she is wholly unable to leave the house.

15 The Commissioner contends Plaintiff’s activities were analogous to those in Stubbs- 16 Danielson v. Astrue. In that case, the Ninth Circuit upheld the ALJ’s finding that “normal 17 activities of daily living, including cooking, house cleaning, doing laundry, and helping her 18 husband in managing finances … tend to suggest that the claimant may still be capable of 19 performing the basic demands of competitive, remunerative, unskilled work on a sustained 20 basis.” 539 F.3d 1169, 1175 (9th Cir. 2008). Here, however, Plaintiff’s activities were far below 21 normal. She did not cook but merely assembled or reheated the simplest possible meals; she did 22 not clean house but merely picked up after herself; she did not do laundry; and she did not help 23 24 1 with household finances but merely her own finances while her housing and food were provided 2 by other people. See AR at 442-43 (living in halfway house then with daughter). 3 Conflict with Plaintiff’s activities was not a clear and convincing reason to discount her 4 testimony. 5 3. Improvement with Treatment

6 The Commissioner notes Plaintiff reported some improvement with treatment. (Dkt. # 33 7 at 8.) “[E]vidence of medical treatment successfully relieving symptoms can undermine a claim 8 of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). However, making 9 “some improvement does not mean that the person’s impairments no longer seriously affect her 10 ability to function in a workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). 11 Treatment notes showing treatment “helped,” a “decrease in anxiety,” or “mood improved” do 12 not establish sufficient improvement that Plaintiff’s symptoms were eliminated or contradict 13 Plaintiff’s testimony in any other way. AR at 750, 799, 902. Improvement with treatment was 14 not a clear and convincing reason to discount Plaintiff’s testimony.

15 The Court concludes the ALJ erred by discounting Plaintiff’s testimony without 16 providing a clear and convincing reason. 17 D. Scope of Remand 18 Plaintiff requests remand for an award of benefits because “[t]he record is complete, there 19 are no outstanding issues, and if the improperly rejected opinion and testimonial evidence were 20 credited, benefits would be merited.” (Dkt. # 32 at 14.) Plaintiff is mistaken that there are no 21 outstanding issues. The Court cannot remand for benefits if “there is a need to resolve conflicts 22 and ambiguities….” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 23 2014). Dr. Flanagan’s and Dr. Kester’s opinions that Plaintiff can perform full-time work 24 1 conflict with Plaintiff’s testimony that she cannot. “Where there is conflicting evidence, and not 2 all essential factual issues have been resolved, a remand for an award of benefits is 3 inappropriate.” Id. The Court concludes enhancement of the record would be useful and, 4 accordingly, remand for further proceedings is appropriate. 5 V. CONCLUSION

6 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 7 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 8 405(g). On remand, the ALJ should reevaluate Plaintiff’s testimony and Dr. Flanagan’s and Dr. 9 Kester’s opinions, reassess the RFC as appropriate, and proceed to step five as necessary. 10 Dated this 21st day of December, 2020. 11 12 A 13 MICHELLE L. PETERSON United States Magistrate Judge 14

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