Schleiger v. O'Malley

• Court: District Court, E.D. Washington
• Decided: January 18, 2024
• Docket: 4:23-cv-05056
• Status: Unknown

Opinion

1 FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jan 18, 2024

4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

7 BURT S., No. 4:23-CV-5056-ACE 8 Plaintiff, ORDER GRANTING 9 PLAINTIFF’S MOTION TO REVERSE 10 v. THE DECISION OF THE COMMISSIONER 11 MARTIN O’MALLEY, 12 COMMISSIONER OF SOCIAL ECF Nos. 10, 12 13 SECURITY,

14 Defendant. 15 16 BEFORE THE COURT is Plaintiff’s Opening Brief and the 17 Commissioner’s Brief in response. ECF Nos. 10, 12. Attorney Chad Hatfield 18 represents Burt S. (Plaintiff); Special Assistant United States Attorney Frederick 19 Fipps represents the Commissioner of Social Security (Defendant). The parties 20 have consented to proceed before the undersigned by operation of Local Magistrate 21 Judge Rule (LMJR) 2(b)(2), as no party returned a Declination of Consent Form to 22 the Clerk’s Office by the established deadline. ECF No. 4. After reviewing the 23 administrative record and the briefs filed by the parties, the Court GRANTS 24 Plaintiff’s motion to reverse the decision of the Commissioner, DENIES 25 Defendant’s motion to affirm, and REMANDS the matter for further proceedings 26 under sentence four of 42 U.S.C. § 405(g). 27 // 28 // 1 JURISDICTION 2 Plaintiff filed an application for benefits on July 15, 2020, later alleging 3 disability since June 4, 2020. The application was denied initially and upon 4 reconsideration. Administrative Law Judge (ALJ) Marie Palachuk held a hearing 5 on March 2, 2022, and issued an unfavorable decision on March 23, 2022. Tr. 21- 6 39. The Appeals Council denied review on February 22, 2023. Tr. 1-6. Plaintiff 7 appealed this final decision of the Commissioner on April 25, 2023. ECF No. 1. 8 STANDARD OF REVIEW 9 The ALJ is responsible for determining credibility, resolving conflicts in 10 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 11 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 12 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 13 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 14 only if it is not supported by substantial evidence or if it is based on legal error. 15 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 16 defined as being more than a mere scintilla, but less than a preponderance. Id. at 17 1098. Put another way, substantial evidence is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion. Richardson v. 19 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 20 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 21 interpretation, the Court may not substitute its judgment for that of the ALJ. 22 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 23 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 24 if conflicting evidence supports a finding of either disability or non-disability, the 25 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 26 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 27 set aside if the proper legal standards were not applied in weighing the evidence 28 1 and making the decision. Brawner v. Sec’y of Health and Human Services, 839 2 F.2d 432, 433 (9th Cir. 1988). 3 SEQUENTIAL EVALUATION PROCESS 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 6 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through 7 four, the claimant bears the burden of establishing a prima facie case of disability. 8 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 9 that a physical or mental impairment prevents the claimant from engaging in past 10 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 11 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 12 the Commissioner to show (1) the claimant can make an adjustment to other work 13 and (2) the claimant can perform other work that exists in significant numbers in 14 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 15 claimant cannot make an adjustment to other work in the national economy, the 16 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 17 ADMINISTRATIVE FINDINGS 18 On March 23, 2022, the ALJ issued a decision finding Plaintiff was not 19 disabled as defined in the Social Security Act. Tr. 21-39. 20 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 21 activity since July 15, 2020, the application date. Tr. 25. 22 At step two, the ALJ determined Plaintiff had the following severe 23 impairments: major depressive disorder; generalized anxiety disorder; post- 24 traumatic stress disorder (PTSD); and schizoaffective disorder. Tr. 25. 25 At step three, the ALJ found these impairments did not meet or equal the 26 requirements of a listed impairment. Tr. 26. 27 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 28 determined Plaintiff could perform a full range of work at all exertional levels but 1 with the following nonexertional limitations: he is able to understand, remember, 2 and carry out simple routine tasks; he is able to maintain concentration, persistence 3 and pace for 2-hour intervals between regularly scheduled breaks; he can adapt to 4 occasional simple changes; and he is limited to no interaction with the public, and 5 only occasional, superficial interaction with coworkers. Tr. 28. 6 At step four, the ALJ found Plaintiff is capable of performing past relevant 7 work as a housekeeping-cleaner. Tr. 38. 8 The ALJ thus concluded Plaintiff has not been disabled since the application 9 date. Tr. 39. 10 ISSUES 11 The question presented is whether substantial evidence supports the ALJ’s 12 decision denying benefits and, if so, whether that decision is based on proper legal 13 standards. 14 Plaintiff raises the following issues for review: (A) whether the ALJ 15 properly evaluated the medical opinion evidence; (B) whether the ALJ properly 16 evaluated Plaintiff’s subjective complaints; (C) whether the ALJ erred by applying 17 Chavez; (D) whether the ALJ erred at step three; and (E) whether the ALJ erred at 18 steps four and five. ECF No. 10 at 4. 19 DISCUSSION 20 A. Medical Opinions 21 Under regulations applicable to this case, the ALJ is required to articulate 22 the persuasiveness of each medical opinion, specifically with respect to whether 23 the opinions are supported and consistent with the record. 20 C.F.R. § 24 416.920c(a)-(c). An ALJ’s consistency and supportability findings must be 25 supported by substantial evidence. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th 26 Cir. 2022). Plaintiff argues the ALJ misevaluated four sets of medical opinions. 27 ECF No. 10 at 7-17. 28 1 1. Thomas Genthe, Ph.D and David Morgan, Ph.D 2 Dr. Genthe examined Plaintiff in January 2019, conducting a clinical 3 interview and performing a mental status examination. Tr. 488-94. Dr. Genthe 4 assessed a “recent” onset of schizophrenia, noting Plaintiff was hospitalized “8-9 5 months ago” for believing he was “under surveillance.” Tr. 488, 491. Dr. Genthe 6 assessed the severity of Plaintiff’s mental impairments as “severe” and opined, 7 among other things, Plaintiff was severely limited in understanding, remembering, 8 and persisting in tasks by following detailed instructions, performing activities 9 within a schedule, maintaining regular attendance, being punctual within 10 customary tolerances without special supervision, adapting to changes in a routine 11 work setting, communicating and performing effectively in a work setting, 12 maintaining appropriate behavior in a work setting, and completing a normal work 13 day and work week without interruptions from psychologically-based symptoms. 14 Tr. 490-91. 15 Dr. Morgan examined Plaintiff in June 2020, conducting a clinical interview 16 and performing a mental status examination. Tr. 607-611. Dr. Morgan assessed 17 the severity of Plaintiff’s mental impairments as “marked” and opined, among 18 other things, Plaintiff was markedly limited in performing activities within a 19 schedule, maintaining regular attendance, being punctual within customary 20 tolerances without special supervision, adapting to changes in a routine work 21 setting, communicating and performing effectively in a work setting, maintaining 22 appropriate behavior in a work setting, and completing a normal work day and 23 work week without interruptions from psychologically-based symptoms. Tr. 609. 24 The ALJ found both opinions “not persuasive.” Tr. 35, 36. Because the 25 ALJ discounted these opinions on the same grounds, the Court collectively 26 discusses the ALJ’s treatment of them. 27 The ALJ first discounted the opinions on the ground the doctors, who 28 examined Plaintiff only once, reviewed “no records” and relied on Plaintiff’s self- 1 report. Tr. 35, 36. This ground is legally erroneous, as there is no requirement 2 examining doctors who perform one evaluation – and necessarily assess 3 functioning at the time of the evaluation – review treatment notes. See, e.g., 4 Walshe v. Barnhart, 70 F. App’x 929, 931 (9th Cir. 2003) (stating “Social Security 5 regulations do not require that a consulting physician review all of the claimant’s 6 background records”); Xiomara F. v. Comm’r of Soc. Sec., 2020 WL 2731023, at 7 *2 (W.D. Wash. May 26, 2020) (“There is no requirement an examining doctor 8 review records prior to rendering an opinion.”); Chlarson v. Berryhill, No., 2017 9 WL 4355908, at *3 (W.D. Wash. July 28, 2017) (“[N]ot reviewing plaintiff’s prior 10 medical records is not a legitimate basis for the failure to credit fully Dr. Czysz’s 11 opinion, as Dr. Czysz examined plaintiff and performed a MSE[.]”), report and 12 recommendation adopted, 2017 WL 3641907 (W.D. Wash. Aug. 24, 2017); Al- 13 Mirzah v. Colvin, 2015 WL 457800, at *8 (W.D. Wash. Feb. 3, 2015) (“This 14 rationale, taken to its logical extreme, would allow for the rejection of any and all 15 medical opinions rendered prior to the admission of the claimant’s most recent 16 treatment notes into the administrative record.”). Further, the record indicates the 17 opinions were based on clinical observations and does not indicate either doctor 18 found Plaintiff to be untruthful. Therefore, this is no evidentiary basis for rejecting 19 the opinions. Cf. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“The 20 report of a psychiatrist should not be rejected simply because of the relative 21 imprecision of the psychiatric methodology. Psychiatric evaluations may appear 22 subjective, especially compared to evaluation in other medical fields. Diagnoses 23 will always depend in part on the patient’s self-report, as well as on the clinician’s 24 observations of the patient. But such is the nature of psychiatry. Thus, the rule 25 allowing an ALJ to reject opinions based on self-reports does not apply in the same 26 manner to opinions regarding mental illness.”) (cleaned up); Ryan v. Comm’r of 27 Soc. Sec., 528 F.3d 1194, 1199-200 (9th Cir. 2008) (noting an ALJ does not 28 provide valid “reasons for rejecting an examining physician’s opinion by 1 questioning the credibility of the patient’s complaints where the doctor does not 2 discredit those complaints and supports his ultimate opinion with his own 3 observations”). The ALJ accordingly erred by discounting the opinions on this 4 ground. 5 The ALJ next discounted the opinions as inconsistent with the longitudinal 6 record, citing specifically to Plaintiff’s self-report of psychologically-based 7 symptoms and Plaintiff’s performance on mental status examinations (i.e., “calm, 8 appropriate affect, normal speech, good eye contact”). Tr. 35, 36. This was error. 9 As to Plaintiff’s self-report, courts have long understood that psychiatric 10 impairments are “not as readily amenable to substantiation by objective laboratory 11 testing as is a medical impairment and that consequently, the diagnostic techniques 12 employed in the field of psychiatry may be somewhat less tangible than those in 13 the field of medicine. In general, mental disorders cannot be ascertained and 14 verified as are most physical illnesses, for the mind cannot be probed by 15 mechanical devises in order to obtain objective clinical manifestations of mental 16 illness.” Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981); accord Buck, 869 17 F.3d at 1049; Ryan, 528 F.3d at 1199-2000. As to Plaintiff’s performance on 18 mental status examinations (conducted in a close and sterile setting with 19 psychiatric professionals), the ALJ’s stated inconsistencies are not legitimate 20 inconsistencies: Plaintiff’s affect, speech, and eye contact are neither inconsistent 21 with allegations of Plaintiff’s psychiatric impairments nor undermine the doctors’ 22 opined limitations concerning, among other things, Plaintiff’s ability to complete a 23 normal workday/workweek. When evaluating medical evidence, an ALJ must 24 present a rational and accurate interpretation of that evidence. See Reddick v. 25 Chater, 157 F.3d 715, 722–23 (9th Cir. 1998) (reversing ALJ’s decision where his 26 “paraphrasing of record material is not entirely accurate regarding the content or 27 tone of the record”). The ALJ did not do so here. The ALJ accordingly erred by 28 discounting the opinions on this ground. 1 Finally, the ALJ discounted the opinions as inconsistent with Plaintiff’s 2 activities of daily living. Tr. 35, 36. In support, the ALJ noted the following: 3 Plaintiff “lives alone, manages personal care/hygiene/medications independently; 4 meals, household chores, public transportation, shopping, finances; attends 5 counseling; enjoys playing video games and collecting/watching movies.” Tr. 36. 6 These minimal activities are neither inconsistent with nor a valid reason to 7 discount the doctor’s opinion. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 8 Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has 9 carried on certain daily activities, such as grocery shopping, driving a car, or 10 limited walking for exercise, does not in any way detract from her credibility as to 11 her overall disability. One does not need to be ‘utterly incapacitated’ in order to be 12 disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); Reddick, 13 157 F.3d at 722 (“Several courts, including this one, have recognized that disability 14 claimants should not be penalized for attempting to lead normal lives in the face of 15 their limitations.”); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting 16 that a disability claimant need not “vegetate in a dark room” in order to be deemed 17 eligible for benefits). Similarly, Plaintiff’s minimal activities do not “meet the 18 threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 19 2007) (citing Fair, 885 F.2d at 603). The ALJ accordingly erred by discounting 20 the doctors’ opinions on this ground. 21 The ALJ accordingly erred by discounting the doctors’ opinions. 22 2. Josue Reyes, ARNP 23 ARNP Reyes, who treated Plaintiff between 2015 and 2022, prepared a 24 medical source statement on January 11, 2022, opining, among other things, 25 Plaintiff was “[s]everely limited: Unable to perform the demands of even sedentary 26 work.” Tr. 1155. The ALJ found this opinion “not persuasive.” Tr. 37. 27 The ALJ first discounted the opinion as unsupported, noting “this opinion 28 form is lacking in any clinical data, evidence of objective findings or testing, or 1 sufficient explanation to support the disabling level of limitation opined.” Tr. 37. 2 However, the record makes clear that ARNP Reyes (and his practice) treated 3 Plaintiff for a period of years before ARNP Reyes rendered his opinion. See, e.g., 4 889-946, 955-63, 1067-72. The substantial medical evidence produced by ARNP 5 Reyes’s practice contains numerous treatment notes documenting Plaintiff’s 6 encounters with ARNP Reyes and his colleagues and indicates these clinicians 7 assessed, among other things, Plaintiff as suffering from varying degrees of 8 auditory hallucinations and suicidal ideation, see, e.g., Tr. 894, and depression, see, 9 e.g., Tr. 967. The ALJ accordingly erred by discounting the opinion on this 10 ground. 11 The ALJ also discounted the opinion as inconsistent with the longitudinal 12 evidence. Tr. 37. For the reasons discussed above, in the context of the opinions 13 of Drs. Genthe and Morgan, the ALJ erred by discounting the opinion on this 14 ground. 15 The ALJ accordingly erred by discounting the opinion. 16 3. Merridy Smith, MSW 17 Ms. Smith began treating Plaintiff no later than January 2019. Tr. 618. On 18 January 6, 2022, Ms. Smith completed a medical source statement, wherein she 19 opined, among other things, Plaintiff had numerous severe and marked functional 20 impairments and, based on these impairments, would be off-task at least 30% of 21 the time during a 40-hour workweek and would miss at least 4 days per month. Tr. 22 1157-60. The ALJ found this opinion “not persuasive.” Tr. 34. 23 The ALJ first discounted the opinion as unsupported, noting it is a “rating 24 check-box form providing no supporting diagnoses or information about 25 symptoms, nor evidence of any objective medical or clinical findings to support the 26 degree of limitation opined.” Tr. 37. However, the record makes clear that Ms. 27 Smith (and her practice, of which ARNP Reyes is also a part) treated Plaintiff for a 28 period of years before rendering her opinion. See, e.g., Tr. 612-888. Thus, the 1 checkbox opinion “did not stand alone[.]” Garrison v. Colvin, 759 F.3d 995, 1014 2 n.17 (9th Cir. 2014)). Further, for the reasons discussed above, in the context of 3 the opinion of ARNP Reyes, substantial evidence does not support the balance of 4 this finding. The ALJ accordingly erred by discounting the opinion on this ground. 5 The ALJ also discounted the opinion as inconsistent the longitudinal record 6 – specifically noting “a lack of objective findings in the ongoing clinical records 7 and treatment notes” – and inconsistent with Plaintiff’s daily activities. Tr. 37-38. 8 For the reasons discussed above, in the context of the opinions of Drs. Genthe and 9 Morgan, the ALJ erred by discounting the opinion on this ground. 10 The ALJ accordingly erred by discounting the opinion. 11 4. Lillie McCain, Ph.D 12 Dr. McCain testified as a medical expert at the hearing. See Tr. 125-37. The 13 ALJ found Dr. McCain opined Plaintiff’s “mental conditions/symptoms as 14 identified in the record would not preclude him from working as they do not limit 15 his ‘ability to function socially, occupationally or behaviorally.’” Tr. 33. 16 ALJ credited Dr. McCain’s opinion on the same grounds used to discount 17 the opinions of the examining and treating providers discussed above. Tr. 33 18 (finding Dr. McCain’s opinion consistent with the ALJ’s view of the longitudinal 19 record, Plaintiff’s self-reported symptoms, Plaintiff’s mental status examinations, 20 and Plaintiff’s activities). Because the Court concludes the ALJ’s stated grounds 21 for discounting these providers’ opinions were legally deficient and/or lacked 22 substantial evidentiary support, it necessarily cannot affirm the ALJ’s crediting of 23 Dr. McCain’s opinion. 24 B. Subjective Complaints 25 Plaintiff contends the ALJ erred by not properly assessing Plaintiff’s 26 symptom complaints. ECF No. 10 at 18-20. Where, as here, the ALJ determines a 27 claimant has presented objective medical evidence establishing underlying 28 impairments that could cause the symptoms alleged, and there is no affirmative 1 evidence of malingering, the ALJ can only discount the claimant’s testimony as to 2 symptom severity by providing “specific, clear, and convincing” reasons supported 3 by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 4 The Court concludes the ALJ failed to offer clear and convincing reasons to 5 discount Plaintiff’s testimony. 6 The ALJ first discounted Plaintiff’s testimony as inconsistent with the 7 medical evidence. Tr. 30-33. However, because the ALJ erred by discounting 8 three sets of medical opinions, and necessarily failed to properly evaluate the 9 medical evidence, as discussed above, this is not a valid ground to discount 10 Plaintiff’s testimony. 11 The ALJ also discounted Plaintiff’s testimony as inconsistent with his 12 activities. Tr. 31. However, as discussed above, the minimal activities the ALJ 13 cites do not sufficiently undermine Plaintiff’s claims. The ALJ accordingly erred 14 by discounting Plaintiff’s testimony on this ground. 15 The ALJ accordingly erred by discounting Plaintiff’s testimony. 16 SCOPE OF REMAND 17 This case must be remanded because the ALJ harmfully misevaluated the 18 medical evidence and Plaintiff’s testimony. Plaintiff contends the Court should 19 remand for an immediate award of benefits. Such a remand should be granted only 20 in a rare case and this is not such a case. The medical opinions and Plaintiff’s 21 testimony must be reweighed and this is a function the Court cannot perform in the 22 first instance on appeal. Further proceedings are thus not only helpful but 23 necessary. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (noting 24 a remand for an immediate award of benefits is an “extreme remedy,” appropriate 25 “only in ‘rare circumstances’”) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 26 775 F.3d 1090, 1099 (9th Cir. 2014)). 27 Because the ALJ misevaluated the medical evidence and Plaintiff’s 28 testimony, the ALJ will necessarily need to reevaluate her Chavez, step three, RFC, 1 || step four, and step five findings. For this reason, the Court need not reach 2|| Plaintiff's remaining assignment of error. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“[I]f it is not necessary to decide more, it is necessary 4|| not to decide more.”) (Roberts, J., concurring in part and concurring in the 5|| judgment). 6 On remand, the ALJ shall reevaluate the opinions of Drs. Genthe and 7|| Morgan, ARNP Reyes, Ms. Smith, and Dr. McCain, reassess Plaintiffs testimony, 8 || develop the record, and reevaluate the steps of the sequential evaluation process, as 9|| appropriate — including a redetermination of the RFC, as needed. 10 CONCLUSION 11 Having reviewed the record and the ALJ’s findings, the Commissioner’s final decision is REVERSED and this case is REMANDED for further 13 || proceedings under sentence four of 42 U.S.C. § 405(g). Therefore, IT IS 14|| HEREBY ORDERED: 15 1. Plaintiff's motion to reverse, ECF No. 10, is 16|| GRANTED. 17 2. Defendant’s motion to affirm, ECF No. 12, is DENIED. 18 The District Court Executive is directed to file this Order and provide a copy 19|| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 20 || the file shall be CLOSED. 21 IT IS SO ORDERED. 22 DATED January 18, 2024. 23 lagwte C Shedim 24 ae gp ALEXANDER C. EKSTROM 25 □ UNITED STATES MAGISTRATE JUDGE 26 27 28