Pickett v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 25, 2020
• Docket: 3:19-cv-06063
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JACOB P., CASE NO. 3:19-cv-06063-JRC 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 17 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local 18 Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate 19 Judge, Dkt. 2. This matter has been fully briefed. See Dkts. 11, 16, 17. 20 Plaintiff, who alleges disability due to mental impairments, including depression, anxiety, 21 headaches, and insomnia, challenges the Administrative Law Judge’s (“ALJ”) evaluation of his 22 symptom testimony. 23 24 1 After considering and reviewing the record, the Court concludes that the ALJ erred in 2 discounting plaintiff’s testimony about the severity of his mental impairment-related symptoms, 3 including severe fatigue, agoraphobia, self-isolation, and headaches, that would render him 4 unable to seek and sustain full-time employment. The ALJ’s error in rejecting plaintiff’s

5 testimony was not harmless; however, even crediting plaintiff’s testimony as true, there are 6 inconsistencies between plaintiff’s testimony and the medical evidence of record that must be 7 resolved. Thus, a remand for further proceedings is appropriate. 8 PROCEDURAL HISTORY 9 Plaintiff filed an application for Supplemental Security Income (“SSI”) benefits pursuant 10 to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act on July 17, 2015, alleging a 11 disability onset date of August 1, 2013. See AR 44. Plaintiff’s application was denied initially 12 and following reconsideration. See AR 44. Plaintiff’s requested hearing was held before ALJ 13 Joanne E. Dantonio on April 26, 2017. See AR 60–69. The ALJ held a supplemental hearing 14 with plaintiff on November 29, 2017. See AR 44, 70–101. On February 9, 2018, the ALJ issued

15 a written decision in which she concluded that plaintiff was not disabled pursuant to the Social 16 Security Act. See AR 44–54. 17 On January 24, 2019, the Appeals Council denied plaintiff’s request for review, making 18 the written decision by the ALJ the final agency decision subject to judicial review. See AR 4–6; 19 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the 20 ALJ’s written decision in November 2019. See Dkts. 1, 5. Defendant filed the sealed 21 administrative record regarding this matter (“AR”) on April 13, 2020. See Dkt. 9. 22 23

24 1 BACKGROUND 2 Plaintiff, Jacob P., was born in 1991 and was 22 years old on the alleged date of disability 3 onset of August 1, 2013. See AR 44, 52, 78. Plaintiff graduated from high school, and his work 4 history includes prior employment as a temporary worker performing general labor and janitorial

5 work. AR 52, 80, 85. Plaintiff states that he stopped working in July 2015 due to his 6 impairments. See AR 81, 85. However, plaintiff testified that he most recently worked at Petco 7 for several days in 2017 through a vocational assistance program. AR 81. 8 According to the ALJ, plaintiff has at least the severe impairments of major depressive 9 disorder, anxiety disorder, headaches, insomnia, and dependent/avoidant personality disorder. 10 See AR 46. The ALJ found that plaintiff was not disabled under the Social Security Act during 11 the relevant period. AR 54. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of 14 social security benefits if the ALJ's findings are based on legal error or not supported by

15 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 16 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 17 DISCUSSION 18 Plaintiff argues that the ALJ failed to properly evaluate plaintiff’s symptom testimony. 19 See Dkt. 11, at 11–16. Finding this issue dispositive, the Court does not address plaintiff’s 20 remaining arguments. 21 I. Plaintiff’s Symptom Testimony 22 When a claimant has medically documented impairments that could reasonably be 23 expected to produce some degree of the symptoms he alleges, and the record contains no

24 1 affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the 2 severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.” 3 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 4 1273, 1281 (9th Cir. 1995)).

5 Here, at step four in the sequential evaluation process, the ALJ found that although 6 plaintiff’s medically determinable impairments could be expected to cause some of the alleged 7 symptoms, plaintiff’s statements about the intensity, persistence, and limiting effects of those 8 symptoms were not entirely consistent with medical evidence and other evidence in the record. 9 AR 50. Specifically, the ALJ discounted plaintiff’s symptom testimony because: (1) medical 10 records reflect that plaintiff’s treatment has been conservative and that plaintiff failed to follow 11 treatment recommendations; (2) medical records do not contain objective findings that support a 12 disabling degree of limitation; and (3) plaintiff’s reported activities of daily living are consistent 13 with the ALJ’s residual functional capacity (“RFC”) assessment. See AR 49–51. 14 With respect to the ALJ’s first reason, evidence of “conservative treatment” is a

15 sufficiently clear and convincing reason to discount a plaintiff’s testimony regarding severity of 16 an impairment. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). Further, an ALJ may 17 discredit a plaintiff’s testimony based on “unexplained, or inadequately explained, failure to seek 18 treatment or follow a prescribed course of treatment.” Fair v. Bowen, 885 F.2d 597, 603 (9th 19 Cir. 1989). However, an ALJ may not find a plaintiff’s symptoms are inconsistent with evidence 20 in the record on the basis that the frequency or extent of the treatment sought by the individual is 21 not comparable with the degree of alleged limitations “without considering possible reasons he [] 22 may not comply with treatment or seek consistent treatment with the degree of his [] 23 complaints.” Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *9 (2017). These

24 1 reasons may include, but are not limited to, an individual’s restructuring of activities to minimize 2 symptoms by avoiding mental stressors that aggravate his symptoms, or due to an individual’s 3 mental impairments or limitations. See id. at *9–10. 4 Here, the ALJ cited to medical records that reflect that plaintiff’s treatment has been

5 conservative and consists of medication and counseling. See AR 51 (citing AR 435, 443, 467, 6 483). However, these records reflect that plaintiff tried multiple medications to treat his 7 depression, anxiety, and insomnia, which did not relieve his symptoms, had side effects, or 8 worked only temporarily. See AR 369 (Celexa for depression), AR 370 (Wellbutrin for 9 depression), AR 432 (venlafaxine for depression), AR 435 (fluoxetine for depression), AR 441 10 (increase in venlafaxine dosage for depression), AR 455 (buspirone for anxiety), AR 456, 483 11 (doxepin and trazodone for sleep), AR 484 (Vyvanse for possible ADHD). The record further 12 reflects that he regularly attended counseling (AR 491–31, 438–39), was referred to a 13 pulmonologist for his insomnia and fatigue (AR 455), and sought treatment through his primary 14 care physician and a psychiatrist. See, e.g., AR 367–81, 432–35. “Persistent attempts to obtain

15 relief of symptoms, such as increasing dosages and changing medications, trying a variety of 16 treatments, referrals to specialists, or changing treatment sources may be an indication that an 17 individual’s symptoms are a source of distress and may show that they are intense and 18 persistent.” SSR 16-3p, at *9. 19 Additionally, in discrediting plaintiff’s symptom testimony, the ALJ cited to plaintiff’s 20 failure to engage in physical exercise as recommended by treatment providers, failure to undergo 21 a sleep study for his insomnia, and failure to seek additional treatment regarding his chronic 22 headaches. See AR 50–51 (citing AR 387, 483–84). During the November 2017 hearing, 23 plaintiff admitted that he had not been exercising as recommended because he cannot leave his

24 1 room, or even his bed, due to his depression, fatigue, and agoraphobia symptoms. See AR 80, 2 84–85. Plaintiff further testified that he knows he needs to see a neurologist for his headaches, 3 but he has not done so due to his agoraphobia and fatigue. See AR 84. Plaintiff stated, “I try [to 4 get out of the house], but I’m unable to. . . . I’ll get pretty much to the doorstep and it’s like

5 there’s a barrier.” AR 87. Plaintiff’s complaints regarding his inability to leave his home, 6 except for therapy, are consistently noted throughout the medical record. See, e.g., AR 371, 388, 7 396, 417, 423, 434, 438, 441, 483, 498. These reasons may legitimately explain plaintiff’s 8 failure to seek additional treatment or his failure to comply with recommended treatment, and at 9 least some evidence of record appears to support plaintiff’s reasons. See SSR 16-3p, at *9–10. 10 Although the ALJ briefly referenced plaintiff’s agoraphobia, the ALJ did not explain how 11 she considered plaintiff’s reasons for failing to seek or to comply with treatment—so that it is 12 unclear to the Court whether the ALJ considered plaintiff’s reasons at all. See 49. In failing to 13 explain how she considered plaintiff’s reasons for noncompliance, the ALJ erred and failed to 14 follow agency guidance regarding the evaluation of plaintiff’s symptom testimony. See SSR 16-

15 3p, at *10 (The ALJ “will review the case record and determine whether there are explanations 16 for inconsistencies in an individual’s statements about symptoms and their effects, and whether 17 the evidence of record supports any of the individuals statements at the time he [] made them. 18 [The ALJ] will explain how [she] considered the individual’s reasons in our evaluation of the 19 individual’s symptoms.”); see also Trevizo v. Berryhill, 871 F.3d 644, 679–80 (9th Cir. 2017) 20 (finding that the ALJ’s weighing of treatment noncompliance without addressing the plaintiff’s 21 reason for failing to do so was erroneous). Therefore, the ALJ’s first reason for discounting 22 plaintiff’s symptom testimony—that plaintiff failed to follow treatment recommendations—is 23 not supported by substantial evidence in the record.

24 1 Regarding the ALJ’s second reason for discounting plaintiff’s symptom testimony, 2 inconsistency with the objective evidence may serve as a clear and convincing reason for 3 discounting plaintiff’s testimony. See SSR 16-3p, at *8–9; Regennitter v. Commissioner of 4 Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1998). However, an ALJ may not reject a

5 plaintiff’s subjective symptom testimony “solely because the degree of pain alleged is not 6 supported by objective medical evidence.” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 7 1995) (internal quotation marks omitted); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) 8 (applying rule to subjective complaints other than pain). 9 Here, the ALJ cited to purported inconsistencies between plaintiff’s alleged symptoms 10 and treating and examining medical providers’ clinical records and observations. See AR 50–51. 11 Notably, the ALJ cited to two mental status examinations (“MSE”) purporting to show that 12 plaintiff’s symptoms are not related to his mental impairments and that his attention and 13 concentration are intact, he presented appropriate judgment and insight, and his thought 14 processes and cognitive function are logical and goal oriented. AR 51 (citing AR 399, 441).

15 However, the ALJ failed to address—and appears to have overlooked—that one of the cited 16 MSEs actually reflects that plaintiff’s insight and judgment are not within normal limits (AR 17 399), while the other reflects that plaintiff’s mood and affect are anxious. AR 441. Further, 18 additional MSEs throughout the medical record show that plaintiff frequently presented with a 19 depressed, sad, anxious, and/or flat affect. See, e.g., AR 409–10, 432, 435, 456, 484, 487–89, 20 494, 493–94. Further still, the MSEs note impairments to plaintiff’s intellectual functioning, 21 concentration, orientation, insight, judgment, and thought content. See AR 410–11, 501. 22 Additionally, the ALJ cited to medical records that reflected that plaintiff tried several 23 antidepressants without effect and that plaintiff was noted to be “stable” during a period when he

24 1 was unmedicated. AR 50 (citing AR 369–70, 375). A plaintiff may be “stable” and disabled at 2 the same time. The fact that plaintiff’s condition was “stable” at certain points during the 3 relevant period is not a clear and convincing reason for discounting plaintiff’s testimony, given 4 that the record indicates that plaintiff exhibited, complained, and continued to seek treatment

5 regarding his symptoms. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see also AR 6 365–76 (observing “no outward signs of depression” but noting “flat affect” and prescribing 7 depression medications), AR 410, 435, 441, 456 (observing anxious, depressed, and sad mood 8 and affect), AR 473, 476–77 (noting fatigue). To the extent that the ALJ cites to additional 9 medical records, these records do not appear inconsistent with plaintiff’s testimony and reports to 10 treatment providers regarding the severity of his symptoms. See, e.g., AR 367, 369, 371, 375, 11 387–88, 395–96, 432, 434, 441, 455, 483, 490, 492; see also Brown-Hunter v. Colvin, 806 F.3d 12 487, 494 (9th Cir. 2015) (“Our decisions make clear that we may not take a general finding—an 13 unspecified conflict between [a plaintiff’s] testimony . . . and [his] reports to doctors—and comb 14 the administrative record to find specific conflicts.” (quoting Burrell v. Colvin, 775 F.3d 1133,

15 1138 (9th Cir. 2014)). Therefore, the ALJ’s second reason for discounting plaintiff’s 16 testimony—that the medical records do not contain objective findings that support a disabling 17 degree of limitation—is not supported by substantial evidence in the record. 18 As for the ALJ’s third reason, the ALJ stated that plaintiff’s knowledge of computers and 19 his ability to play video games for long periods of time is consistent with the RFC, which 20 included the ability to perform sedentary work. AR 51. An ALJ may discredit a plaintiff’s 21 testimony when the plaintiff reports participation in everyday activities indicating capacities that 22 are transferable to a work setting. See Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 23 (9th Cir. 1999). However, “the mere fact that [an individual] has carried on certain daily

24 1 activities . . . does not in any way detract from [his] credibility as to [his] overall disability.” 2 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 3 1050 (9th Cir. 2001)). “Only if the level of activity is inconsistent with [the individual]’s 4 claimed limitations would these activities have any bearing on [the individual]’s credibility.”

5 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (also noting that “disability claimants 6 should not be penalized for attempting to lead normal lives in the face of their limitations.”). In 7 support of this conclusion, the ALJ cited to one medical examiner’s observation that plaintiff has 8 a “strong disability conviction” and that “if [plaintiff] obtained some support to be independent 9 from his aunt and uncle, and some vocational assistance, he would be able to work.” AR 51 10 (citing AR 500). 11 Here, the ALJ appears to have overlooked that plaintiff did receive vocational assistance 12 in 2017, and yet he still failed to maintain even temporary employment due to his alleged 13 symptoms. See AR 81–82; Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007) (“It does 14 not follow from the fact that a claimant tried to work for a short period of time and, because of

15 his impairments, failed, that he did not then experience [symptoms] and limitations severe 16 enough to preclude him from maintaining substantial gainful employment”). Further, the ALJ 17 provided no reasoning to show how plaintiff’s ability to work on a computer—while isolating at 18 home—is inconsistent with his testimony regarding severity of symptoms or how plaintiff would 19 be able to perform work at the level described in the RFC. See AR 51, 84–85 (testimony 20 regarding plaintiff’s limited ability to leave his home due to symptoms). Without further 21 analysis, the Court cannot determine whether plaintiff’s activities, including his computer 22 activities, are inconsistent with his testimony regarding the severity of his symptoms and 23 functional limitations. See Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require

24 1 the ALJ to build an accurate and logical bridge from the evidence to her conclusions so that we 2 may afford the claimant meaningful review of the SSA’s ultimate findings.”). 3 The Court would like to believe that claimants can help themselves if they simply stop 4 playing video games, get out of the house, and apply those same skills to obtain employment, but

5 unfortunately the ALJ, and this Court, must avoid the temptation to play doctor, and rely on the 6 testimony of claimants’ treatment providers to determine whether these activities are readily 7 transferable to maintaining substantial gainful employment. See Schmidt v. Sullivan, 914 F.2d 8 117, 118 (7th Cir. 1990) (“[J]udges, including administrative law judges of the Social Security 9 Administration, must be careful not to succumb to the temptation to play doctor . . . . Common 10 sense can mislead; lay intuitions about medical phenomena are often wrong.”) (internal citations 11 omitted). Here, the ALJ’s conclusion that plaintiff’s reported activities of daily living are 12 consistent with full time employment is not supported by substantial evidence in the record. 13 In sum, the ALJ erred because she failed to provide a specific, clear and convincing 14 reason to discredit plaintiff’s testimony regarding the severity of his symptoms and functional

15 limitations. Garrison, 759 F.3d at 1014–15. The Court also concludes that the error is not 16 harmless because had the ALJ fully credited plaintiff’s testimony, the RFC would have included 17 greater limitations. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout v. 18 Cmm’r, 454 F.3d 1050, 1055–56 (9th Cir. 2006)) (“‘a reviewing court cannot consider [an] error 19 harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the 20 testimony, could have reached a different disability determination.’”). 21 II. Remand for Further Proceedings 22 In this case, a remand for further proceedings, rather than an award of benefits, is 23 appropriate. Generally, “where ‘(1) the record has been fully developed and further

24 1 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 2 legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; 3 and (3) if the improperly discredited evidence were credited as true, the ALJ would be required 4 to find the claimant disabled on remand,’” a remand for an award of benefits is appropriate.

5 Trevizo, 871 F.3d at 682–83 (quoting Garrison, 759 F.3d at 1021). But “[w]here there is 6 conflicting evidence, and not all essential factual issues have been resolved, a remand for an 7 award of benefits is inappropriate.” See Treichler v. Cmm’r, 775 F.3d 1090, 1101 (9th Cir. 8 2014). 9 Here, the ALJ failed to give a valid reason for rejecting plaintiff’s testimony regarding 10 the severity of his symptoms and functional limitations. If plaintiff’s testimony was credited as 11 true, the ALJ could be required to find plaintiff disabled. See Trevizo, 871 F.3d at 682–83. 12 However, there is conflicting medical opinion evidence that must be resolved with plaintiff’s 13 testimony. For example, although plaintiff testified that he is unable to work because of severe 14 symptoms from mental impairments, an examining psychologist and State agency reviewing

15 psychologists opined that plaintiff has no more than moderate limitations in his abilities to 16 perform work-related activities. See AR 150–51, 162–63, 397, 389, 499. Because there are 17 inconsistencies between plaintiff’s testimony and the medical evidence of record regarding 18 whether plaintiff has functional limitations that would render him disabled under the Social 19 Security Act, a remand for further proceedings is appropriate. See Treichler, 775 F.3d at 1101. 20 III. Remaining Issues 21 Plaintiff also argues that the ALJ erred in evaluating medical evidence and lay witness 22 evidence. See Dkt. 11, at 2–6, 8–9. Additionally, plaintiff contends that additional medical 23

24 1 evidence submitted to the Appeals Council shows that the ALJ’s decision is not supported by 2 substantial evidence. See id. at 9–11. 3 Because this Court remands for further proceedings, the ALJ must reassess all of the 4 medical opinion evidence, including new evidence submitted to the Appeals Council, as well

5 reassess the lay witness evidence. See Program Operations Manual System (POMS) GN 6 03106.036 Court Remand Orders, https://secure.ssa.gov/poms.nsf/lnx/0203106036 (last visited 7 August 4, 2020) (a court order vacating a prior decision and remanding the case voids the prior 8 decision and thus returns the case to the status of a pending claim). Thus, this Court does not 9 address plaintiff’s remaining issues. 10 CONCLUSION 11 Based on these reasons and the relevant record, the Court ORDERS that this matter be 12 REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting 13 Commissioner for further consideration consistent with this order. 14 JUDGMENT should be for PLAINTIFF and the case should be closed.

15 Dated this 25th day of September, 2020. 16

17 A 18 J. Richard Creatura 19 United States Magistrate Judge

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