1 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 2 Dec 01, 2021
3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5
6 IRENE R.,1 No. 4:20-cv-5180-EFS
7 Plaintiff, ORDER GRANTING PLAINTIFF’S 8 v. SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S 9 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION, Commissioner of Social Security, AND REMANDING FOR FURTHER 10 PROCEEDINGS Defendant. 11
12 Plaintiff Irene R. appeals the denial of benefits by the Administrative Law 13 Judge (ALJ). She alleges the ALJ erred by determining that her seizure condition 14 medically improved and she was therefore no longer disabled as of February 2, 15 2017. Because the ALJ failed to adequately consider Plaintiff’s headaches or offer 16 legitimate reasons supported by substantial evidence for discounting two medical 17 opinions, the Court grants Plaintiff’s Motion for Summary Judgment, ECF No. 18, 18 denies the Commissioner’s Motion for Summary Judgment, ECF No. 21, and 19 remands this matter for further proceedings. 20
21 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 22 first name and last initial or as “Plaintiff.” See LCivR 5.2(c). 23 1 I. Multi-Step Determination 2 Determining whether a claimant’s eligibility for disability benefits continues 3 involves a multi-step process.2 The first step determines whether the claimant has
4 an impairment or combination of impairments that meets or equals the severity of 5 a listed impairment.3 If the impairment does not meet or equal a listed 6 impairment, the second step addresses whether there has been medical 7 improvement of the claimant’s condition.4 8 If there has been medical improvement, it is determined at step three 9 whether such improvement is related to the claimant’s ability to do work—that is,
10 whether there has been an increase in the claimant’s residual functional capacity 11 (RFC).5 If the answer to step three is yes, the analysis skips to step five.6 If there 12 has been no medical improvement or medical improvement is not related to the 13 claimant’s ability to work, the evaluation proceeds to step four.7 14 15 16
17 2 20 C.F.R. § 416.994. 18 3 Id. §§ 416.994(b)(5)(i), pt. 404, Subpt. P, App. 1. 19 4 Id. § 416.994(b)(5)(ii). 20 5 Id. § 416.994(b)(5)(iii). 21 6 Id. 22 7 Id. 23 1 At step four, it is determined whether any of the special exceptions apply.8 2 At step five, if medical improvement is shown to be related to the claimant’s ability 3 to work, it is determined whether the claimant’s current impairments in
4 combination are severe—that is, whether they impose more than a minimal 5 limitation on the claimant’s physical or mental ability to perform basic work 6 activities.9 If the step-five finding is that the claimant’s current impairments are 7 not severe, the claimant is no longer considered to be disabled.10 If the step-five 8 finding is that the claimant’s current impairments are severe, at step six, it is 9 determined whether the claimant can perform past relevant work.11 Finally, at
10 step seven, if the claimant cannot perform past relevant work, the Commissioner 11 must prove there is alternative work in the national economy that the claimant can 12 perform given her age, education, work experience, and RFC.12 13 II. Factual and Procedural Summary 14 In 2014, Plaintiff was found disabled as of September 8, 2011, based on her 15 seizure disorder.13 Then during a review of her disability status, Plaintiff was 16
17 8 20 C.F.R. § 416.994(b)(5)(iv). 18 9 Id. §§ 416.994(b)(5)(v), 416.922. 19 10 Id. § 416.994(b)(5)(v). 20 11 Id. § 416.994(b)(5)(vi). 21 12 Id. § 416.994(b)(5)(vii). 22 13 AR 109–17. 23 1 determined to no longer be disabled as of February 2, 2017.14 Following a hearing, 2 this non-disability determination was upheld by the ALJ.15 3 In determining that Plaintiff’s disability ended, the ALJ found:
4 That on May 12, 2014, the date of the initial disability decision, 5 Plaintiff had the following medically determinable impairments: 6 uncontrolled seizure disorder with epilepsy and degenerative disc 7 disease and spondylosis of the lumbar spine, with the uncontrolled 8 seizure disorder meeting Listings 11.02 and 11.03. 9 As of February 2, 2017, Plaintiff had the following medically
10 determinable impairments: seizure disorder, degenerative disc disease 11 of the lumbar spine, major depressive disorder, and unspecified 12 anxiety disorder. 13 Step one: Since February 2, 2017, Plaintiff did not have an 14 impairment or combination of impairments that met or medically 15 equaled the severity of one of the listed impairments. 16 Steps two and three: Medical improvement occurred as of February 2,
17 2017, and the medical improvement was related to the ability to work 18 because Plaintiff’s impairments no longer met or medically equaled 19 Listings 11.02 and 11.03. 20
21 14 AR 160–62. 22 15 AR 58–108. 23 1 Step five and RFC: Plaintiff could perform sedentary work along with 2 the following limitations: 3 lift up to 10 pounds occasionally and less than 10 pounds frequently. 4 occasionally climb ramps or stairs, balance, stoop, kneel, and crouch. 5 no crawling, working near unprotected heights and hazardous machinery, operating moving machinery 6 including an automobile, and climbing of ladders, ropes, or scaffolds. 7 simple and repetitive, non-tandem tasks not involving fast-paced production work, or extensive independent 8 decision-making or decision-making for others, and only occasional changes in the work setting. 9 occasional superficial interaction with coworkers and supervisors and work away from the general public. 10 Step six: Plaintiff had no past relevant work. 11 Step seven: beginning February 2, 2017, considering Plaintiff’s RFC, 12 age, education, and work history, Plaintiff could perform work as an 13 addresser, polisher of eyeglass frames, and table worker.16 14 When assessing the medical opinions, the ALJ found: 15 the reviewing testimony of Robert Smiley, M.D., and John Nance, 16 Ph.D., very persuasive. 17 the examining opinion of William Drenguis, M.D., and the reviewing 18 opinions of Howard Platter, M.D., Gordon Hale, M.D., John Gilbert, 19 Ph.D., and Bruce Eather, Ph.D., persuasive. 20 21
22 16 AR 17–40. 23 1 the examining opinion of Kirsten Nestler, M.D., generally persuasive. 2 the treating opinion of Scott Michael, MSW, not persuasive.17 3 The ALJ also found Plaintiff’s medically determinable impairments could
4 reasonably be expected to cause some of the alleged symptoms, but her statements 5 concerning the intensity, persistence, and limiting effects of those symptoms were 6 not entirely consistent with the objective medical evidence and other evidence.18 7 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 8 which denied review.19 Plaintiff timely appealed to this Court. 9 III. Standard of Review
10 A district court’s review of the Commissioner’s final decision is limited.20 The 11 Commissioner’s decision is set aside “only if it is not supported by substantial 12 evidence or is based on legal error.”21 Substantial evidence is “more than a mere 13 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 14 mind might accept as adequate to support a conclusion.”22 Moreover, because it is 15 the role of the ALJ—and not the Court—to weigh conflicting evidence, the Court 16
17 17 AR 29–31. 18 18 AR 26–29. 19 19 AR 1–6. 20 20 42 U.S.C. § 405(g). 21 21 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 22 22 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 23 1 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 2 from the record.”23 The Court considers the entire record.24 3 Further, the Court may not reverse an ALJ decision due to a harmless
4 error.25 An error is harmless “where it is inconsequential to the ultimate 5 nondisability determination.”26 The party appealing the ALJ’s decision generally 6 bears the burden of establishing harm.27 7 IV. Analysis 8 A. Step One: Plaintiff establishes consequential error as to Listing 11.02. 9 Plaintiff argues the ALJ failed to conduct an adequate step-one evaluation
10 by failing to give res judicata effect to the prior disability determination, failing to 11 explain why Plaintiff’s impairments—her seizures and headaches—did not meet 12
13 23 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 14 24 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 15 consider the entire record as a whole, weighing both the evidence that supports and 16 the evidence that detracts from the Commissioner's conclusion,” not simply the 17 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 18 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does not indicate that 19 such evidence was not considered[.]”). 20 25 Molina, 674 F.3d at 1111. 21 26 Id. at 1115 (cleaned up). 22 27 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 23 1 Listing 11.02, failing to properly evaluate Plaintiff’s degenerative disc disease 2 under Listing 1.04A, and failing to properly evaluate Plaintiff’s mental health 3 conditions under Listings 12.04 and 12.06.
4 1. Res Judicata 5 Plaintiff argues the ALJ failed to give res judicata effect to the prior 6 disability determination. However, the ALJ had the responsibility to assess 7 whether Plaintiff’s disability had medically improved, which includes a multi-step 8 evaluation.28 When performing this multi-step evaluation, the ALJ was not bound 9 by the prior disability assessment, or findings contained therein, for the new time
10 period.29 Instead, the ALJ was to compare the current medical and other evidence 11 with the prior medical and other evidence.30 12 13 14
15 28 20 C.F.R. § 416.994(b)(1)(vi) (“Our decisions under this section will be made on a 16 neutral basis without any initial inference as to the presence or absence of 17 disability being drawn from the fact that you have previously been determined to 18 be disabled. We will consider all evidence you submit and that we obtain from your 19 medical sources and nonmedical sources. . . . Our determination regarding whether 20 your disability continues will be made on the basis of the weight of the evidence.”). 21 29 Id. § 416.994(b)(1)(vi); Lambert v. Saul, 980 F.3d 1266, 1276 (9th Cir. 2020). 22 30 20 C.F.R. 416.994(b)(1)(vii). 23 1 Because there is no requirement that the ALJ apply res judicata principles 2 when assessing whether Plaintiff’s disability continued, the ALJ did not error in 3 this regard.
4 2. Listing 11.02 5 Listing 11.02 requires: 6 A. Generalized tonic-clonic seizures, occurring at least once a month for at least 3 consecutive months despite adherence to prescribed 7 treatment. OR 8 B. Dyscognitive seizures, occurring at least once a week for at least 3 consecutive months despite adherence to prescribed treatment. 9 OR C. Generalized tonic-clonic seizures, occurring at least once every 2 10 months for at least 4 consecutive months despite adherence to prescribed treatment; and a marked limitation in one of the following: 11 1. Physical functioning; or 2. Understanding, remembering, or applying information; or 12 3. Interacting with others; or 4. Concentrating, persisting, or maintaining pace; or 13 5. Adapting or managing oneself. OR 14 D. Dyscognitive seizures, occurring at least once every 2 weeks for at least 3 consecutive months despite adherence to prescribed treatment; 15 and a marked limitation in one of the following: 1. Physical functioning; or 16 2. Understanding, remembering, or applying information; or 3. Interacting with others; or 17 4. Concentrating, persisting, or maintaining pace; or 5. Adapting or managing oneself.31 18 The ALJ found that as of February 2, 2017, Plaintiff had the following 19 medically determinable impairments: seizure disorder, degenerative disc disease of 20 21
22 31 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 11.02 (citations omitted). 23 1 the lumbar spine, major depressive disorder, and unspecified anxiety disorder.32 2 The ALJ found that the impairments did not individually or in combination meet 3 or medically equal a listed impairment.33 Specifically as to Plaintiff’s seizure
4 disorder, the ALJ found that the seizure disorder was well controlled on 5 medications and that, although Plaintiff periodically had breakthrough seizures, 6 the seizures occurred during periods of medication noncompliance and therefore 7 she did not satisfy Listing 11.02.34 The ALJ also determined that Plaintiff’s 8 migraine headaches and cannabis use were not severe impairments.35 9 Plaintiff argues the ALJ misapplied the term “breakthrough seizure” by
10 failing to recognize that breakthrough seizures occur when medication is being 11 taken. Regardless of whether Plaintiff’s seizures occurred when she was not 12 complying with medication or were “true” breakthrough seizures, the ALJ 13 reasonably found that Plaintiff’s seizures were better controlled with medication. 14 The record clearly reflects that the seizures Plaintiff experienced after February 2, 15 2017, decreased in frequency and severity when compared to the prior disability 16
17 18
19 32 AR 22. 20 33 AR 22–24. 21 34 AR 22. 22 35 AR 24. 23 1 period and that her seizures by themselves did not rise to the level of meeting or 2 equaling Listing 11.02.36 3 However, Plaintiff also argues the ALJ failed to consider Plaintiff’s
4 headaches under Listing 11.02, specifically Listing 11.02B, which requires 5 dyscognitive seizures occurring at least once a week for at least 3 consecutive 6 months despite adherence to prescribed treatment. In response, the Commissioner 7 argues that the ALJ rationally found, based on the medical evidence, Plaintiff’s 8 statements, and Dr. Smiley’s testimony, that Plaintiff’s headaches were well 9 controlled and therefore did not meet or medically equal Listing 11.02B.
10 The ALJ did not discuss Plaintiff’s headaches under the listings portion of 11 the decision but rather in a later portion of the decision wherein the ALJ 12 13 14
15 36 See, e.g., AR 461 (March 2017: one small seizure although taking medication); 16 AR 501 (August 2017: one small seizure although taking medication); AR 496, 492 17 (Nov. 2017: one small seizure after not taking medication when traveling and 18 another seizure after not taking medication when in jail overnight); AR 709 (May 19 2018: grand mal tonic-clonic seizure although taking medication); AR 586 (Jan. 20 2019: reporting recent seizures); AR 658–61 (Feb. 2019: seizure although taking 21 medication); AR 825, 843–44, 935 (June 2019: seizure after vomiting medication 22 due to nausea). 23 1 discounted Plaintiff’s headache symptom reports and found that her headaches 2 were not a severe impairment.37 In making this finding, the ALJ highlighted: 3 Six neurology records: four reporting that Plaintiff “has some headaches
4 in the right occipital area” for which she takes over-the-counter 5 medication once weekly; another in February 2018 wherein she reported 6 that her last migraine headache occurred 1–2 weeks ago; and another in 7 May 2018 wherein she reported that her migraines were controlled 8 except for one right-sided parietal headache that week. 9 That Plaintiff routinely denied headaches during symptom reviews at
10 pain management visits. 11 And that there was no evidence of frequent emergency room visits for 12 headaches. 13 First, as to the four neurology records wherein Plaintiff reported right 14 occipital area headaches, two of these records were before the medical 15 improvement date of February 2, 2017, including one from January 13, 2017, 16 indicating that Plaintiff reported 3 small seizures a few weeks ago.38 Another,
17 stated, in addition to the report that “she has some headaches in the right occipital 18 area for which she takes over-the-counter-medication once weekly” and that she 19 20
21 37 AR 22–24. 22 38 AR 465 23 1 had one seizure that month which started out as a headache.39 As to the February 2 2018 record, Plaintiff not only reported a headache that occurred 1–2 weeks prior 3 and lasted 48 hours but also that she had a current headache, left occipital pain,
4 and photophobia.40 The May 2018 treatment record states more fully: Plaintiff’s 5 “migraines are controlled except for one this week on Wednesday in which she had 6 a right-sided parietal headache (not stress related) with diarrhea and vomiting and 7 then followed by a grand mal tonic-clonic seizure.”41 When viewed together, these 8 records reflect that Plaintiff’s headaches can contribute to, or follow, the seizures 9 and that the seizure medications generally control the seizures but do not fully
10 control Plaintiff’s headaches. These records also reflect that Plaintiff’s headaches 11 cause her pain and can last over 24 hours. These records do not serve as 12 substantial evidence to support the ALJ’s finding that Plaintiff’s headaches only 13 impose a mild limitation on her ability to perform basic work activities. 14 Second, the ALJ highlighted that Plaintiff denied headaches during pain 15 management visits. However, these pain management visits were for Plaintiff’s low 16 back pain, not for her headaches. Although it is noted under the “ROS” (review of
17 symptoms) section of the back-pain-management records that she is “negative for 18 dizziness, headaches, paresthesia, and weakness,” the accuracy of this notation and 19
20 39 AR 461. 21 40 AR 483–85. 22 41 AR 709. 23 1 other default notations, which appears fairly consistency throughout the back-pain- 2 management records is questionable because: 1) Plaintiff was only being treated 3 for low back pain by this provider; 2) under the ROS, it was typically noted that
4 Plaintiff did not have any sleep difficulty or depression even though the “past 5 medical history” on these same treatment records notes that Plaintiff is positive for 6 a seizure disorder and sleep apnea and that she was observed, along with lumbar 7 pain, to be lethargic with depressed mood and flat affect with either fair or poor 8 insight and judgment;42 3) notwithstanding the often negative notation for 9 depression under the ROS section, the provider at the April 2018 patient
10 consultation recommended that Plaintiff see a counselor given her PHQ score of 22, 11 which qualifies as severe depression; and 4) the note that Plaintiff’s “last seizure 12 was 2/10/18 – mild” was a holdover from the initial treatment record, as Plaintiff 13 had additional seizures during the time she was treated for back pain at Pinnacle 14 Pain Center.43 Because the accuracy of the ROS language (and other default 15 language) is in question, the ALJ did not legitimately rely on the negative 16
17 42 See AR 1000–04, 1007–22. 18 43 Compare AR 1021 (March 2018), AR 1016 (April 2018), AR 1010 (September 19 2018), AR 1000 (April 2019), AR 993 (May 2019), AR 989 (Sept. 2019), with, e.g., 20 AR 709–12 (May 2018: grand mal tonic-clonic seizure), AR 586 (Jan. 2019: 21 reporting recent seizures), AR 658–59 (reporting seizure in February), AR 778, 22 825–30, 935 (seizure). 23 1 headache reference in the ROS section of these back-pain-management records to 2 discount Plaintiff’s headache symptom reports. 3 Finally, although the ALJ rationally found that Plaintiff did not have
4 frequent emergency room visits for headaches, Plaintiff did visit the emergency 5 room in September 2018 due to nausea and at time of discharge she complained of 6 a headache. Also, in June 2019, Plaintiff was admitted to the emergency room after 7 having a seizure in front of emergency medical services.44 8 The evidence cited by the ALJ does not serve as substantial evidence to 9 support her finding that Plaintiff’s headaches impose no more than a mild
10 limitation on her ability to perform basic work activities. Moreover, the overall 11 medical records concerning Plaintiff’s seizures and headaches after February 2, 12 2017, reveal: 13 March 2017: reporting headaches, including one that lead to a seizure.45
14 May 2017: reporting headaches but no seizures.46
15 August 2017: reporting a small seizure even with medication.47
16 17 18
19 44 AR 684, 825. 20 45 AR 461. 21 46 AR 505. 22 47 AR 501. 23 1 November 2017: reporting a small seizure in the last week due to missing medication when traveling and right temporal and occipital headaches when 2 she has inadequate sleep.48
3 November 2017: experiencing a headache due to not taking medication the day before when in jail overnight, was observed to “have horizontal visual 4 complaints,” and was assessed with acute confusional migraine, refractory.49
5 January 2018: reporting some small simple partial type seizures and headaches and observed with mildly tender right temporalis muscle and 6 right occipital area with trigger points.50
7 February 2018: left occipital pain and reporting a migraine within the last week or two that lasted 48 hours.51 8 May 2018: reporting migraines are controlled except for a right-sided 9 parietal headache followed by a grand mal tonic-clonic seizure.52
10 June and July 2018: reporting more migraines of the right occipital and temporal areas, lasting up to 72–96 hours.53 11 September 2018: headache at time of ER discharge and “some bioccipital 12 tenderness which is not unusual for her.”54
13 January 2019: reporting recent seizures.55
15 48 AR 496. 16 49 AR 492–95. 17 50 AR 487–89. 18 51 AR 483. 19 52 AR 709–12. 20 53 AR 713–20. 21 54 AR 685, 721. 22 55 AR 586. 23 1 March 2019: reporting that she is doing well for her transformed migraines and confusional migraines although she had a seizure in February.56 2 June 2019: reporting a seizure 2 weeks ago.57 3 June 2019: ER visit for seizure after vomiting medication due to nausea, but 4 also reporting no seizures in several months.58
5 July 2019: reporting headaches with some mild dizziness and left eye implications.59 6 A comprehensive review of the medical records reveals that the ALJ failed to 7 consider the statement that Plaintiff’s headaches were “well controlled” in their 8 medical context.60 Plaintiff’s medical history reflects that she previously 9 experienced up to four seizures a week. Clearly, the seizure medication reduced the 10 severity and frequency of Plaintiff’s seizures. However, the medical records reveal 11 that she continued to have some severe and some minor seizures, along with 12 headaches, some which were more severe than others and had physiological 13 abnormalities (temporal, parietal, and occipital lobe tenderness) associated with 14 15
16 56 AR 658–59. 17 57 AR 844–45. 18 58 AR 778, 825–30, 935. 19 59 AR 843. 20 60 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (recognizing that context 21 is crucial because “treatment records must be viewed in light of the overall 22 diagnostic record”). 23 1 them. As noted by a treating neurologist, it was not unusual for Plaintiff to have 2 occipital tenderness.61 3 In addition, the medical record reflects that stress, which appears to
4 interplay with Plaintiff’s depression and anxiety, may contribute to Plaintiff’s 5 headaches and seizures. Yet, in analyzing Plaintiff’s headaches, the ALJ did not 6 meaningfully discuss the interplay between Plaintiff’s depression and anxiety or 7 any medication side-effects. 8 Plaintiff testified that she gets headaches—including some every month that 9 last a couple of days—and that, although she tells her neurologist about them, he
10 ignores her headache reports.62 Plaintiff also testified that during her headaches 11 she feels pain on the right side of her head, that her headaches sometimes cause 12 her to throw up, and that they cause her to prefer to stay in bed.63 In addition, she 13 testified that, although in the past her headaches more frequently led to seizures, 14 she now does not always get seizures following her headaches.64 15 This record reveals at least a reasonable possibility that Plaintiff’s 16 migraines, combined with her seizures, might medically equal Listing 11.02. But
18 61 AR 721 (Sept. 2018: “She does have some bioccipital tenderness which is not 19 unusual for her.”). 20 62 AR 90. 21 63 AR 91. 22 64 AR 90–91. 23 1 Dr. Smiley did not offer any testimony about Plaintiff’s headaches other than 2 agreeing that Plaintiff’s headaches could cause nausea or vomiting.65 Therefore, it 3 is unclear whether Dr. Smiley considered Plaintiff’s headaches when offering his
4 opinion that Plaintiff’s impairments, either singly or in combination, did not meet 5 or equal Listing 11.02. Moreover, the ALJ did not discuss whether there was a 6 detailed description of a typical headache event for Plaintiff by an acceptable 7 medical source.66 8 On this record, the ALJ and the testifying medical expert needed to have 9 considered Plaintiff’s headaches, along with her seizures, any contributing
10 depression and anxiety, and medication side-effects, when assessing whether 11 Plaintiff met or equaled Listing 11.02.67 Alternatively, if Plaintiff’s headaches are 12 considered secondary to her seizure disorder, then the ALJ must meaningfully 13 discuss, and support her findings with relevant substantial evidence, whether the 14 treatment of the seizures sufficiently alleviated the secondary headaches.68 15
16 65 AR 68–69. 17 66 SSR 19-4p ¶ 7. 18 67 See Social Security Ruling (SSR) 19-4p, available at 2019 WL 4169635, at *7 19 (Aug. 26, 2019); Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990 (requiring the 20 ALJ to consider equivalency when a claimant establishes multiple impairments 21 that, together, might have the findings necessary to meet a particular listing). 22 68 SSR 19-4p. 23 1 3. Summary 2 Because the ALJ erred by failing to consider Plaintiff’s headaches (and the 3 impact that her anxiety and depression may have on her headaches and any
4 medication side-effects) when assessing Listing 11.02, this matter must be 5 remanded. The Court therefore does not address Plaintiff’s Listing 1.04A argument 6 as to her lumbar impairment or Listing 12.04 and 12.06 arguments as to her 7 mental health impairments. On remand, the ALJ is to reassess the relevant 8 listings. 9 B. Step Two: The ALJ reasonably found that Plaintiff’s seizures decreased in severity and frequency but erred by failing to also 10 consider Plaintiff’s headaches and medication side-effects.
11 Plaintiff argues the ALJ erred by failing to establish that Plaintiff’s seizure 12 impairment improved because the ALJ failed to appreciate the definition of 13 “breakthrough seizure” and ignored the fact that in March 2017—one month after 14 the ALJ’s determination of medical improvement—Plaintiff reported a seizure 15 despite medication compliance. 16 In a disability cessation case, the Commissioner considers at step two 17 whether there has been any medical improvement: “any decrease in the medical 18 severity” of the impairments present at the time the claimant was disabled.69 In 19 assessing whether there has been an improvement in the claimant’s signs, 20 21
22 69 20 C.F.R. § 416.994(b)(1)(i). 23 1 symptoms, or laboratory findings, prior and current medical evidence are 2 compared.70 3 In the prior decision awarding disability, the ALJ found that through 2013,
4 Plaintiff was experiencing seizures—grand mal and petit mal seizures—at least 5 four times a week and therefore found that Plaintiff met Listings 11.02 and 11.03 6 due to her uncontrolled seizure disorder with epilepsy indicated, along with also 7 having the severe impairments of degenerative disc disease and spondylosis of the 8 lumbar spine.71 Upon review, the ALJ found medical improvement as of February 9 2, 2017, because 1) neurological records described a history of grand mal seizures
10 that were well controlled on multiple medications, 2) breakthrough seizures 11 occurred during times of non-compliance with medications, 3) Plaintiff reported 12 that she was seizure-free for many months at a time when she remembered to take 13 her medication, and 4) during a December 2016 consultative examination, she 14 reported that her last grand mal seizure occurred over a year ago. 15 As discussed above, the ALJ rationally found that the extent and frequency 16 of Plaintiff’s seizures decreased with the multiple medications. The medical record
17 reflects that Plaintiff no longer experienced seizures four times a week, but rather 18 at a rate that was generally less than monthly. Therefore, regardless of whether 19 the seizures occurred because of medication non-compliance or were “true” 20
21 70 Id. 22 71 AR 113–17. 23 1 breakthrough seizures or were precipitated by Plaintiff vomiting her seizure 2 medications due to nausea, the medical record reflects that Plaintiff’s seizures 3 decreased in severity and frequency. The ALJ’s finding that Plaintiff’s seizure
4 impairment by itself medically improved is supported by substantial evidence. 5 However, as discussed above, the ALJ erred by failing to consider Plaintiff’s 6 headaches, in conjunction with her seizures and any medication side-effects or 7 contributory depression and anxiety, under Listing 11.02. 8 C. Medical Opinions: Plaintiff establishes consequential error. 9 Plaintiff challenges the ALJ’s evaluation of Dr. Nestler’s examining opinion
10 and Mr. Michael’s treating opinion. As discussed below, because the ALJ failed to 11 provide legitimate reasons supported by substantial evidence to find these opinions 12 less persuasive, the ALJ erred. 13 1. Standard72 14 An ALJ must consider and evaluate the persuasiveness of all medical 15 opinions.73 The factors for evaluating the persuasiveness of medical opinions 16 include, but are not limited to, supportability, consistency, relationship with the
17 claimant, and specialization.74 Supportability and consistency are the most 18
19 72 20 C.F.R. § 416.920c. 20 73 Id. § 416.920c(a), (b). 21 74 Id. § 416.920c(c)(1)–(5). When assessing the medical source’s relationship with 22 the claimant, the ALJ is to consider the treatment length, frequency, purpose, and 23 1 important factors, and the ALJ is required to explain how both of these factors 2 were considered.75 3 2. Mr. Michael, MSW
4 Beginning in December 2018, Mr. Michael was Plaintiff’s treating mental 5 healthcare provider, and he diagnosed her with major depressive disorder 6 (recurrent severe without psychotic features), anxiety disorder (unspecified), and 7 cannabis dependence. In October 2019, Mr. Michael completed a mental RFC 8 assessment form, wherein he checked that Plaintiff was: 9 markedly limited in her abilities to understand and remember detailed
10 instructions, carry out detailed instructions, maintain attention and 11 concentration for extended periods, complete a normal workday and 12 workweek without interruptions from psychologically based symptoms 13 and perform at a consistent pace without an unreasonable number and 14 length of rest periods, interact appropriately with the general public, and 15 set realistic goals or make plans independently of others. 16
18 extent, and whether an examination was conducted. The ALJ may also consider 19 whether the medical source has familiarity with the other record evidence or an 20 understanding of the disability program’s policies and evidentiary requirements. 21 Id. § 416.1520(c)(5). 22 75 Id. § 416.920c(b)(2), (c)(1)–(2). 23 1 moderately limited in her abilities to understand and remember very 2 short and simple instructions, sustain an ordinary routine without 3 special supervision, ask simple questions or request assistance, accept
4 instructions and respond appropriately to criticism from supervisors, get 5 along with coworkers or peers without distracting them or exhibiting 6 behavioral extremes, and travel in unfamiliar places or use public 7 transportation. 8 otherwise, either mildly limited or not significantly limited in the other 9 mental activities.76
10 Mr. Michael also assessed marked limitations in the following B criteria: 11 understand, remember, or apply information; concentrate persist, or maintain 12 pace; and adapt or manage oneself, and assessed a moderate limitation for 13 interacting with others.77 Finally, Mr. Michael opined that Plaintiff would likely be 14 off-task and unproductive more than 30 percent of the workweek and miss four or 15 more days per month.78 He noted that he could not confirm that the opined 16 limitations did not include limitations from current alcohol or drug use.79
19 76 AR 1030–31. 20 77 AR 1032. 21 78 AR 1033. 22 79 AR 1033. 23 1 The ALJ discounted Mr. Michael’s opinion because 1) it was not supported 2 by adequate explanation, 2) it was not supported by his generally unremarkable 3 mental status examination findings, and 3) it was not supported by the record as a
4 whole. 5 First, while an ALJ may discount an opinion that is inadequately supported 6 by an explanation, Mr. Michael’s checkbox opinion, which contained the additional 7 note that Plaintiff’s “severe depression and anxiety make it appear very difficult for 8 this client to work,” cannot simply be discounted on the basis of inadequate 9 explanation because the record also contains his underlying treatment notes.80
10 Therefore, even assuming the ALJ rationally found that the checkbox form 11 contained an inadequate explanation, this first reason is not a legitimate reason, 12 by itself, to discount Mr. Michael’s opinion. 13 Turning to the second reason (that Mr. Michael’s opinion is not supported by 14 his examination findings and treatment records),81 the ALJ highlighted that 15 although the record reflects waxing and waning of Plaintiff’s psychological 16 symptoms, Plaintiff “frequently presented with a normal mood and affect,
18 80 AR 1033; Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017); Garrison v. 19 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 20 81 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) 21 (recognizing that a medical opinion may be rejected if it is conclusory or 22 inadequately supported); Lingenfelter, 504 F.3d at 1042. 23 1 cooperative attitude, clear speech, and average eye contact,” during her mental 2 health treatment sessions with Mr. Michael and therefore his treatment records 3 did not support the frequency and severity of the cumulative limitations.82
4 However, the ALJ’s finding that Plaintiff frequently presented to Mr. Michael with 5 a normal mood is not supported by substantial evidence. During the 14 treatment 6 sessions with Mr. Michael, Plaintiff presented on 10 occasions with either 7 depressed or anxious mood, suicidal ideation, or paranoid thinking.83 And while the 8
9 82 AR 31. 10 83 Compare AR 594–96 (Dec. 6, 2018: depressed mood, full affect, and otherwise 11 normal mental status findings); AR 590–92 (Dec. 20, 2018: depressed mood, full 12 affect, and otherwise normal findings); AR 584–86 (Jan. 18, 2019: normal findings 13 other than concerned about recent seizures and paranoid thinking); AR 581–83 14 (Jan. 31, 2019: anxious mood, full affect, and otherwise normal findings); AR 577– 15 79 (Apr. 17, 2019: depressed mood, constricted affect, and feeling suicidal but 16 otherwise normal findings except Crisis Services was called because she had a 17 suicidal plan); AR 953–55 (June 13, 2019: depressed but otherwise normal 18 findings); AR 950–52 (July 2, 2019: depressed, anxious, tired, constricted affect, 19 depressive thought content but otherwise normal findings); AR 947–49 (July 26, 20 2019: paranoid, lonely, but otherwise normal findings); AR 944–46 (Aug. 23, 2019: 21 depressed but otherwise normal findings); AR 941–43 (Sept. 20, 2019: depressed, 22 lonely, but otherwise normal); with AR 587–89 (Jan. 4, 2019: euthymic mood, full 23 1 ALJ rationally found that Plaintiff frequently presented with cooperative attitude, 2 clear speech, and average eye contact during her sessions, Mr. Michael did not base 3 his opined limitations on any deficiencies with Plaintiff’s attitude, speech, or eye
4 contact, but rather on her severe depression and anxiety. Therefore, that Plaintiff 5 frequently presented with cooperative attitude, clear speech, and average eye 6 contact is not a legitimate basis on which to find Mr. Michael’s opined limitations 7 resulting from Plaintiff’s depression and anxiety unsupported by his treatment 8 records.84 9 Similarly, although the ALJ appropriately considered whether Mr. Michael’s
10 opinion was consistent with the record as a whole, the ALJ failed to focus on the 11 mental-health records and findings contained therein. For instance, Plaintiff also 12 received counseling from two other mental health care providers: Lorena Herrera, 13 MA LMHCA, and Chad Longaker, LMHC. The stated psychotherapy goal was to 14 15
16 affect, and otherwise normal findings); AR 574–76 (Apr. 22, 2019: euthymic mood 17 and normal findings after being at Transitions Health Crisis Center for two days); 18 AR 571–73 (May 8, 2019: euthymic mood and normal findings); AR 568–69 (May 19 23, 2019: euthymic mood and normal findings). 20 84 See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (recognizing that it is not 21 legitimate to discount an opinion for a reason that is not responsive to the medical 22 opinion). 23 1 teach Plaintiff “coping skills to manage current problems with mood.”85 During her 2 three sessions with Plaintiff, Ms. Lorena mentioned that, although Plaintiff 3 engaged well and had otherwise normal mental status findings, she was depressed,
4 sad, and tearful.86 Mr. Longaker regularly commented that Plaintiff was not 5 making progress or was making minimal progress and had paranoid thinking.87 6 Mr. Michael’s observations were consistent with these counselor’s observations. 7 Therefore, on this record, without more meaningful analysis, the ALJ’s 8 finding that Mr. Michael’s opinion is unsupported by the record is not a rational 9 finding supported by substantial evidence. This error is consequential because if
10 the RFC incorporated Mr. Michael’s opined pace and absenteeism limitations, 11 Plaintiff would be unable to sustain work. 12
13 85 AR 567. 14 86 AR 613–15 (Jan. 2018: depressed mood, congruent affect, tearful, and initially 15 angry but engaged well with organized thought process); AR 610–11 (Feb. 2019: 16 sad mood, tearful, full affect, and otherwise normal findings and engaged well); AR 17 607–08 (March 2018: minimal progress). 18 87 AR 605–06 (July 2018: no progress, not engaged, and not descriptive); AR 603–04 19 (Aug. 2018: no progress, client did not engage well during session, minimal speech, 20 anxious, and depressed); AR 601–02 (Oct. 2018: paranoia, no progress); AR 599– 21 600 (Nov. 2018: paranoia, minimal progress); AR 597–98 (Nov. 2018: minimal 22 progress). 23 1 3. Dr. Nestler 2 On January 21, 2017, Dr. Nestler completed an evaluation of Plaintiff and 3 diagnosed her with major depressive disorder and rule out learning disorder.88
4 Dr. Nestler observed Plaintiff to be quite sedated or possibly medicated (or had an 5 underlying disability or language barrier), that she had difficulty engaging in the 6 examination, and that she appeared significantly depressed.89 Dr. Nestler opined 7 that, although Plaintiff would not have difficulty performing simple and repetitive 8 tasks, detailed and complex tasks, or work activities on a consistent basis without 9 specific or additional instructions, she would have difficulty accepting instructions
10 from supervisors, interacting with coworkers and the public, maintaining regular 11 attendance in the workplace, completing a normal workday/workweek without 12 interruptions, and dealing with the usual stress encountered in the workplace.90 13 The ALJ found Dr. Nestler’s testimony generally persuasive, but then 14 stated: 15 Although the limitations are supported by the claimant’s appearance and lack of engagement at that one-time psychological interview, she 16 appears far more capable in other medical records. The claimant typically presented with a logical thought process, normal cognition, 17 and average intelligence at psychotherapy visits. Additionally, the possibility that she may have been “impaired” lessens the persuasive 18 value of the one-time psychological evaluation because it is unclear 19
20 88 AR 455–59. 21 89 AR 458–59. 22 90 AR 459. 23 1 whether her functional limitations are due to her being sedated and medicated during the examination or her underlying depression.91 2 As Plaintiff highlights, the ALJ findings are contradictory. First, the ALJ 3 finds Dr. Nestler’s opinion generally persuasive, but—while the RFC contained 4 social restrictions and limited Plaintiff to simple and repetitive tasks with only 5 occasional changes in the work setting and no decision-making or extensive 6 independent decision-making—the RFC necessarily requires, based on the 7 vocational expert’s testimony, that Plaintiff be on task and productive at least 93 8 percent of the workday and not absent more than 1 day per month.92 Yet, 9 Dr. Nestler opined that Plaintiff would have difficulty completing a normal 10 workday or workweek without interruptions and maintaining regular attendance 11 in the workplace.93 The ALJ’s analysis therefore fails to meaningfully explain how 12 the RFC is consistent with Dr. Nestler’s generally persuasive opinion. 13 The ALJ does discuss that Dr. Nestler’s opined limitations are inconsistent 14 with Plaintiff’s presentation “with logical thought process, normal cognition, and 15 average intelligence” at psychotherapy visits.”94 However, Dr. Nestler did not base 16 17
18 91 AR 30. 19 92 AR 105–07. 20 93 AR 105–06. 21 94 AR 30 (citing AR 577–617, 935–56 (progress notes ranging from January 2018 to 22 September 2019 from Tri-Cities Community Behavioral Health Services)). 23 1 her opined limitations on any cognitive limitations, as she found that even with 2 somewhat slow processing speed and poor calculations, Plaintiff was able to 3 perform short and simple tasks, as well as detailed and complex tasks. Therefore,
4 these cited psychotherapy notes were not inconsistent with the basis for Dr. 5 Nestler’s opined limitations. Instead, consistent with Dr. Nestler’s findings that 6 Plaintiff was significantly depressed, Plaintiff’s treating mental health providers 7 frequently found Plaintiff to be depressed, anxious, or paranoid.95 Moreover, 8 Plaintiff was admitted for crisis services due to her depression.96 9 Finally, it was not reasonable for the ALJ to discount Dr. Nestler’s opinion
10 based on the comment that Plaintiff may have been impaired due to being “quite 11 sedated and medicated during the examination” or it was “secondary to underlying 12 depression.”97 First, if Plaintiff’s observed impairment was due to her medication, 13 the ALJ needed to consider the side-effects of Plaintiff’s medications.98 Second, if 14 Plaintiff’s observed impairment was due to her underlying depression, this would 15 support Dr. Nestler’s opined limitations. 16
17 95 AR 77–617, 935–56 18 96 AR 574–79. 19 97 AR 458. 20 98 See SSR 16-3p (allowing the medical source to consider medication side-effects 21 and requiring the ALJ to consider medication side-effects when assessing the 22 claimant’s symptom reports). 23 1 The ALJ erred by failing to offer legitimate reasons supported by substantial 2 evidence for discounting portions of Dr. Nestler’s opinion. 3 4. Summary
4 The ALJ erred when considering the medical opinions of Mr. Michael and 5 Dr. Nestler. These errors were consequential as both Mr. Michael and Dr. Nestler 6 opined that Plaintiff was unable to sustain workplace pace and attendance. 7 Because remand is required due to these errors and step-one errors, the Court need 8 not separately address Plaintiff’s RFC argument. 9 D. Remand: Further proceedings are needed.
10 Plaintiff submits a remand for payment of benefits is warranted. 11 A district court “ordinarily must remand to the agency for further 12 proceedings before directing an award of benefits.”99 The “credit-as-true” rule, on 13 which Plaintiff relies, is a “rare and prophylactic exception to the ordinary remand 14 rule.”100 For the Court to remand for award of benefits, three conditions must be 15 satisfied: 16 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 17 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 18 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.101 19
20 99 Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017). 21 100 Id. 22 101 Garrison, 759 F.3d at 1020. 23 1 Here, the second and third conditions are met. The ALJ failed to provide 2 legally sufficient reasons for rejecting Mr. Michael’s and Dr. Nestler’s opinions and, 3 if these opinions are credited as true, Plaintiff would be considered disabled 4 because she is unable to sustain work due to pace and attendance limitations. 5 However, further administrative proceedings are needed. Although the record 6 reflects that Plaintiff’s pace and attendance will be impacted by her seizures, 7 headaches, depression, anxiety, and low-back pain,102 it is not clear that these 8 impairments impact her to such extent that she will be absent more than one day 9 per month and off task more than 6–7 percent of the day. The record is in conflict 10 in this regard, as Dr. Nance testified that “even [Mr. Michael’s] own Mental Status 11 Evaluations would not have supported th[e] degree of limitation” opined by 12 Mr. Michael, and the nonexamining physicians and Dr. Drenguis opined that 13 Plaintiff could sustain work with appropriate exertional, social, and other 14 limitations.103 15 Remand is therefore required. On remand, the ALJ is to consider whether 16 the record contains a detailed description of Plaintiff’s typical headache event, 17 18
19 102 See, e.g., AR 1020–22, 1013–18, 1007–11, 1000–04 (generally showing decreased 20 lumbar range of motion, tender lumbar, lethargy, depressed mood, flat affect, and 21 impacted insight and judgment). 22 103 AR 76–77. 23 1 including all associated phenomena, by an acceptable medical source, or whether 2 the record must be supplemented with such evidence. In addition, the ALJ must 3 obtain testimony from a medical source qualified to opine as to Plaintiff’s
4 headaches and seizures, including any medication side-effects and the contributory 5 impact, if any, of Plaintiff’s depression, anxiety, and lumbar pain. The ALJ is to 6 then reevaluate whether Plaintiff’s disability status continued. 7 V. Conclusion 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is
10 GRANTED. 11 2. The Commissioner’s Motion for Summary Judgment, ECF No. 21, 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). On remand, the ALJ is to ensure the record contains a
17 detailed description of a typical headache event and obtain testimony 18 from a medical source qualified to opine as to Plaintiff’s headaches 19 and seizures, including any medication side-effects and the 20 contributory impact, if any, of Plaintiff’s depression, anxiety, and 21 lumbar pain. The ALJ is to then reevaluate whether Plaintiff’s 22 disability status continued.
23 1 4. The case shall be CLOSED. 2 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and 3 provide copies to all counsel.
4 DATED this 1st day of December 2021. 5 s/Edward F. Shea _____________ 6 EDWARD F. SHEA Senior United States District Judge 7 8 9 10 11
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