Rosell v. Commissioner of Social Security

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DENNIS R., 8 Plaintiff, Case No. C20-5836 RAJ 9 v. ORDER REVERSING DENIAL OF 10 BENEFITS AND REMANDING COMMISSIONER OF SOCIAL SECURITY, FOR FURTHER 11 ADMINISTRATIVE Defendant. PROCEEDINGS 12 13 Plaintiff appeals denial of his applications for Supplemental Security Income and 14 Disability Insurance Benefits. Plaintiff contends the ALJ erred by discounting his testimony and 15 three medical opinions. Dkt. 21. As discussed below, the Court REVERSES the 16 Commissioner’s final decision and REMANDS the matter for further administrative proceedings 17 under sentence four of 42 U.S.C. § 405(g). 18 BACKGROUND 19 Plaintiff is 50 years old, has a high school education, and has worked as a display maker, 20 customer complaint clerk and supervisor, and ticket agent. Dkt. 19, Admin. Transcript (Tr.) 33- 21 34. Plaintiff applied for benefits in January 2018, alleging disability as of May 22, 2017. Tr. 15. 22 After conducting a hearing in July 2019, the ALJ issued a decision finding Plaintiff not 23 ORDER REVERSING DENIAL OF 1 disabled. Tr. 15-35. In pertinent part, the ALJ found Plaintiff had the severe impairments of 2 lumbar spine degenerative disc disease and degenerative joint disease; right knee 3 chondromalacia and cysts, status post-surgery; left shoulder pain; major depressive disorder; 4 anxiety disorder; and post-traumatic stress disorder (PTSD). Tr. 17. The ALJ found Plaintiff 5 could perform simple, routine, light-exertion work, with occasional overhead reaching and 6 frequent handling/fingering with the left non-dominant upper extremity, and with occasional 7 interaction with coworkers and the public. Tr. 21. 8 DISCUSSION 9 This Court may set aside the Commissioner’s denial of Social Security benefits only if 10 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record

11 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 12 A. Plaintiff’s Testimony 13 Where, as here, an ALJ determines a claimant has presented objective medical evidence 14 establishing underlying impairments that could cause the symptoms alleged, and there is no 15 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to 16 symptom severity by providing “specific, clear, and convincing” reasons supported by 17 substantial evidence. Trevizo, 871 F.3d at 678. The ALJ discounted Plaintiff’s testimony of 18 debilitating mental impairments and back, knee, and shoulder pain based on inconsistency with 19 the medical evidence, improvement with treatment, and his activities. Tr. 22-27.

20 1. Medical Evidence 21 “Contradiction with the medical record is a sufficient basis for rejecting a claimant’s 22 subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 23 2008). However, a mere “lack of medical evidence cannot form the sole basis for discounting ORDER REVERSING DENIAL OF 1 [symptom] testimony.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, evidence 2 the ALJ cited did not contradict Plaintiff’s testimony. 3 The ALJ cited a lack of “long-term hospitalizations or severe complications,” but failed 4 to explain how this contradicts Plaintiff’s testimony. Tr. 25. The ALJ gave no reason long-term 5 hospitalization would be expected based on Plaintiff’s testimony of, for example, isolation and 6 difficulty leaving his house. See Tr. 118. The ALJ cited “normal or stable gait” and found no 7 need for an assistive device, but this does not contradict Plaintiff’s testimony. Tr. 25. Plaintiff 8 testified he can walk for up to 20 minutes, not that he cannot walk without an assistive device. 9 Tr. 125. A normal gait walking across a doctor’s office does not contradict testimony of pain 10 and numbness after walking for 20 minutes. Id. The ALJ cited observations Plaintiff was in “no

11 acute distress,” but Plaintiff’s symptoms are chronic, not acute. Tr. 25. The ALJ cited Plaintiff’s 12 ability to “participate in physical therapy,” but failed to explain how participating in therapy 13 designed for people with physical impairments contradicts Plaintiff’s testimony. Id. Similarly, 14 the ALJ found Plaintiff was “an active participant in mental health counseling,” including 15 completing homework, but failed to explain how participating in therapy designed for people 16 with mental impairments contradicts Plaintiff’s testimony. Id. 17 Conflict with the medical evidence was not a clear and convincing reason to discount 18 Plaintiff’s testimony. 19 2. Improvement with Treatment

20 Impairments that can be “controlled effectively” by medication or treatment are not 21 considered disabling for purposes of determining eligibility for Social Security benefits. See 22 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ cited a 23 treatment note showing Plaintiff’s shoulder and knee pain were “30% improved by PT and ORDER REVERSING DENIAL OF 1 cortisone injection.” Tr. 639. This does not show Plaintiff’s impairments were controlled 2 effectively. Other records note some improvement, but none indicate Plaintiff’s symptoms were 3 fully relieved or otherwise contradict Plaintiff’s testimony. See Tr. 805 (pain “improved”). 4 “That a person who suffers from severe [symptoms] makes some improvement does not mean 5 that the person’s impairments no longer seriously affect her ability to function in a workplace.” 6 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). 7 Improvement with treatment was not a clear and convincing reason to discount Plaintiff’s 8 testimony. 9 3. Activities 10 An ALJ may discount a claimant’s testimony based on daily activities that either

11 contradict her testimony or that meet the threshold for transferable work skills. Orn v. Astrue, 12 495 F.3d 625, 639 (9th Cir. 2007). “Only if the level of activity were inconsistent with 13 Claimant’s claimed limitations would these activities have any bearing on Claimant’s 14 credibility.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 15 The ALJ found Plaintiff’s testimony inconsistent with a treatment note reporting Plaintiff 16 “was going to start walking long distances.” Tr. 23. However, this goal, set during mental 17 health treatment, had a target date of over a year later. Tr. 1189 (“Start: 11/25/2017 … Target: 18 12/31/2018”). This treatment note does not indicate Plaintiff actually engaged in any activity 19 inconsistent with his testimony.

20 The ALJ listed several activities, including the ability to “move from one location to 21 another” and “provide information about his health,” but failed to explain how they contradicted 22 Plaintiff’s testimony. Tr. 26-27. The ALJ also provided a long description of driving a car, 23 including operating pedals and levers and focusing, but again failed to explain how it contradicts ORDER REVERSING DENIAL OF 1 Plaintiff’s testimony. Tr. 27. Plaintiff participated in a “wellness walk” with his mental health 2 care group, but there is no indication he walked longer than he testified he could without breaks. 3 Tr. 899. 4 Conflict with activities was not a clear and convincing reason to discount Plaintiff’s 5 testimony. 6 The Court concludes the ALJ erred by discounting Plaintiff’s testimony without a clear 7 and convincing reason. 8 B. Medical Opinions 9 Because Plaintiff filed his claim after March 27, 2017, new regulations apply to the 10 ALJ’s evaluation of medical opinion evidence. The ALJ must articulate and explain the

11 persuasiveness of an opinion based on “supportability” and “consistency,” the two most 12 important factors in the evaluation. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The “more 13 relevant the objective medical evidence and supporting explanations presented” and the “more 14 consistent” with evidence from other sources, the more persuasive a medical opinion. Id. at 15 (c)(1)-(2). At the least, this appears to necessitate that an ALJ specifically account for the 16 legitimate factors of supportability and consistency in addressing the persuasiveness of a medical 17 opinion. The Court must, moreover, continue to consider whether the ALJ’s analysis has the 18 support of substantial evidence. See 42 U.S.C. § 405(g) (“findings of the Commissioner of 19 Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).

20 1. Treating Physician James G. Lenhart, M.D. 21 In April 2019, based on knee and shoulder impairments, Dr. Lenhart opined Plaintiff 22 needed to elevate his leg for 10 minutes about every two hours, could stand/walk two hours and 23 sit two hours per day, would miss more than three days of work per month, and had upper ORDER REVERSING DENIAL OF 1 extremity limitations. Tr. 1171-73. The ALJ found Dr. Lenhart’s opinions “unpersuasive” based 2 on inconsistency with medical evidence and Plaintiff’s activities, unexplained limitations, and 3 internal inconsistency. Tr. 29. 4 a) Medical Evidence 5 Inconsistency with objective evidence in the medical record can be a valid reason for 6 rejecting the opinion of an examining doctor. See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 7 2020). Here, however, the only medical evidence the ALJ cited was “generally normal gait and 8 ability to walk, sit, and stand without the use of an assistive device.” Tr. 29. A normal gait 9 across a doctor’s office without an assistive device does not contradict an inability to stand/walk 10 more than two hours per day, as Dr. Lenhart opined. Tr. 1172. Conflict with medical evidence

11 was not a valid reason to discount Dr. Lenhart’s opinions. 12 b) Activities 13 Conflict with a claimant’s activities “may justify rejecting a treating provider’s opinion.” 14 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, however, the ALJ provided the 15 same list of activities he cited to discount Plaintiff’s testimony, and failed to explain how any of 16 them contradicted Dr. Lenhart’s opinions. Tr. 29. Conflict with Plaintiff’s activities was not a 17 valid reason to discount Dr. Lenhart’s opinions. 18 c) Lack of Explanation The ALJ found Dr. Lenhart failed to explain his opinion Plaintiff would miss at least 19 three days of work per month. Tr. 29. Although Dr. Lenhart did not explain his absenteeism 20 opinion in the form, the ALJ must also consider his treating records. Opinions “based on 21 significant experience with [the claimant] and supported by numerous records [are] entitled to 22 weight that an otherwise unsupported and unexplained check-box form would not merit….” 23 ORDER REVERSING DENIAL OF 1 Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). Dr. Lenhart’s opinions were supported 2 by extensive clinical records. See Tr. 638-82, 817-75, 1127-70. These treatment records reveal 3 numerous abnormal clinical findings. See, e.g., Tr. 644 (“Left shoulder … tenderness[,] 4 Hawkin’s positive[,] Neer’s positive”), 657 (“Large multiloculated cystic lesion” on right knee 5 MRI), 863 (positive straight leg raise and Faber tests). The ALJ provided no reason these were 6 insufficient to support Dr. Lenhart’s opinions. Lack of explanation was not a valid reason to 7 discount Dr. Lenhart’s opinions. 8 d) Internal Inconsistency 9 The ALJ found Dr. Lenhart’s opined upper extremity (UE) limitations internally 10 inconsistent. Dr. Lenhart made a checkmark indicating Plaintiff “would not be able to use his

11 hands and arms at all for reaching, holding, handling or manipulating,” and a checkmark to 12 indicate this opinion applied to Plaintiff’s “[l]eft UE.” Tr. 1172. On the next page, Dr. Lenhart 13 made a checkmark indicating Plaintiff “would be able to use his hands and arms occasionally (up 14 to 1/3 of an 8 hour workday) for reaching, holding, handling or manipulating,” but failed to make 15 a checkmark indicating whether this limitation applied to Plaintiff’s “[r]ight,” “[l]eft,” or 16 “[b]oth” upper extremities. Tr. 1173. The ALJ apparently concluded Dr. Lenhart intended the 17 occasional limitation to apply to both upper extremities, which would contradict the opined 18 inability to use the left arm. Tr. 29. However, Dr. Lenhart did not make a checkmark indicating 19 “[b]oth UE’s.” Tr. 1173. Substantial evidence thus does not support the ALJ’s conclusion that

20 Dr. Lenhart intended to endorse two contradictory statements. Internal inconsistency was not a 21 valid reason to discount Dr. Lenhart’s opinions. 22 The Court recognizes the ambiguity created by Dr. Lenhart’s failure to checkmark one of 23 the three options provided. However, because this case must be remanded for reconsideration of ORDER REVERSING DENIAL OF 1 Plaintiff’s testimony in any case, the Court need not further address the ambiguity at present. On 2 remand, the ALJ may be evaluating a different record, as new evidence may be submitted that 3 impacts Dr. Lenhart’s opinion. If not, the ALJ will have the opportunity to reconsider or clarify 4 his conclusion that Dr. Lenhart intended to opine two contradictory limitations. 5 The Court concludes the ALJ erred by discounting Dr. Lenhart’s opinions. 6 2. Examining Doctor W. Kefron McCaw, Psy.D. 7 Dr. McCaw examined Plaintiff in October 2018 and, based on diagnoses of social anxiety 8 disorder and major depressive disorder, opined he would have marked limitations in maintaining 9 punctual attendance, learning new tasks, communicating and performing effectively, maintaining 10 appropriate behavior, completing a normal work day and work week, and goal-setting. Tr. 1123-

11 24. 12 The ALJ found Dr. McCaw’s opinions “unpersuasive” based on inconsistency with 13 objective medical findings and Plaintiff’s activities. Tr. 32. As the Commissioner notes, the 14 “ALJ also found more persuasive the opinions of the State Agency consultants.” Dkt. 22 at 13. 15 The existence of conflicting opinions, however, is not by itself a reason to prefer one over the 16 other. The ALJ could only discount Dr. McCaw’s opinions for valid reasons supported by 17 substantial evidence. 18 The ALJ did not identify any conflicting medical evidence, but simply referred to 19 “objective medical findings discussed previously in this decision.” Tr. 32. Nothing in the ALJ’s

20 decision obviously conflicts with Dr. McCaw’s opinions, and the Commissioner fails to identify 21 any conflict. Conflict with the medical evidence was not a valid reason to discount Dr. McCaw’s 22 opinions. 23 The ALJ provided the same list of activities he cited to discount Plaintiff’s testimony and ORDER REVERSING DENIAL OF 1 Dr. Lenhart’s opinions, and failed to explain how any of them contradicted Dr. McCaw’s 2 opinions. Tr. 32. Conflict with Plaintiff’s activities was not a sufficient reason to discount Dr. 3 McCaw’s opinions. 4 The Court concludes the ALJ erred by discounting Dr. McCaw’s opinions. 5 3. Examining Doctor Morgan L. McCormick, Psy.D. 6 Dr. McCormick examined Plaintiff in May 2019 and, based on PTSD, opined Plaintiff 7 had marked limitations in remembering, concentrating for two hours, completing a normal work 8 day and work week, accepting supervision, and handling changes. Tr. 1396-1400. The ALJ 9 found Dr. McCormick’s opinions “unpersuasive” based on the same activities discussed above, 10 but failed to explain how any of them contradicted Dr. McCormick’s opinions. Tr. 33. This was

11 not a valid reason. The Court concludes the ALJ erred by discounting Dr. McCormick’s 12 opinions. 13 CONCLUSION 14 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 15 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 16 405(g). On remand, the ALJ should reevaluate Plaintiff’s testimony and the opinions of Dr. 17 Lenhart, Dr. McCaw, and Dr. McCormick; reassess the RFC as appropriate; and proceed to step 18 five as necessary. 19 DATED this 8th day of June, 2021.

20 A

21 The Honorable Richard A. Jones 22 United States District Judge

23 ORDER REVERSING DENIAL OF