Sharp v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 8, 2021
• Docket: 3:19-cv-06064
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DAVID S., Case No. 3:19-cv-06064 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of Defendant’s denial of her 13 applications for disability insurance (“DIB”) and supplemental security income (“SSI”) 14 benefits. 15 The parties have consented to have this matter heard by the undersigned 16 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 17 MJR 13. For the reasons set forth below, the undersigned agrees that the ALJ erred, 18 and the ALJ’s decision is reversed and remanded for further proceedings. 19 I. ISSUES FOR REVIEW 20 1. Did the ALJ err in evaluating the medical opinion evidence? 2. Did the ALJ properly assess Plaintiff’s symptom testimony? 21 3. Did the ALJ err by not evaluating lay witness statements?

22 II. BACKGROUND 23 Plaintiff filed applications for DIB and SSI on October 31, 2016, alleging in both 24 applications a disability onset date of August 31, 2014. AR 28, 253-56, 257-65. 1 Plaintiff’s applications were denied initially and upon reconsideration. AR 28, 179-85, 2 186-92. ALJ Jo Hoenninger held a hearing on August 22, 2018. AR 48-101. On October 3 31, 2018, the ALJ issued a decision finding that Plaintiff was not disabled. AR 25-41. On 4 September 6, 2019, the Social Security Appeals Council denied Plaintiff’s request for

5 review. AR 1-7. 6 Plaintiff seeks judicial review of the ALJ’s October 31, 2018. Dkt. 4. 7 III. STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 9 denial of Social Security benefits if the ALJ's findings are based on legal error or not 10 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 11 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.’” Biestek v. 13 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 14 IV. DISCUSSION

15 In this case, the ALJ found that Plaintiff had the severe, medically determinable 16 impairments of degenerative disc disease, cervicalgia, elbow pain secondary to bilateral 17 and medial epicondylitis and ulnar neuropathy, schizoaffective disorder, attention deficit 18 hyperactivity disorder, post-traumatic stress disorder, obsessive compulsive disorder, 19 and alcohol use disorder. AR 31. 20 Based on the limitations stemming from Plaintiff’s impairments, the ALJ found 21 that Plaintiff could perform a reduced range of light work. AR 33. Relying on vocational 22 expert (“VE”) testimony, the ALJ found that Plaintiff could perform his past work; 23 therefore the ALJ determined at step four of the sequential evaluation that Plaintiff was

24 not disabled. AR 39-40, 96-98. 1 A. Whether the ALJ properly evaluated the medical opinion evidence 2 Plaintiff contends that the ALJ erred in evaluating the opinions of examining 3 psychologist Jack Litman, Ph.D., treating sources Amar Bhuta, M.D. and Bryan Rhoads, 4 PA-C, and the non-examining state agency consultants. Dkt. 21, pp. 3-10.

5 In assessing an acceptable medical source – such as a medical doctor – the ALJ 6 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of 7 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 8 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 9 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 10 contradicted, the opinion can be rejected “for specific and legitimate reasons that are 11 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing 12 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 13 499, 502 (9th Cir. 1983)) 14 1. Dr. Litman

15 Psychologist Dr. Litman examined Plaintiff on February 3, 2017. AR 495-502. Dr. 16 Litman’s evaluation consisted of a clinical interview, a mental status examination, and a 17 review of the medical record. Based on this evaluation, Dr. Litman opined that given his 18 presentation during the exam, Plaintiff “may be a danger to himself or others” if he 19 “doesn't experience interpreted avenues of escape with such compromised perceptions 20 of what is actually occurring.” AR 502. Dr. Litman stated that given Plaintiff’s “current 21 presentation of instability” he had no ability to work, and recommended that any funding 22 he received by directed to Plaintiff’s partner or a third party. Id. 23

24 1 The ALJ assigned “little weight” to Dr. Litman’s opinion, reasoning that: (1) Dr. 2 Litman’s opinion that Plaintiff could not work offered an opinion on an issue of disability 3 reserved for the Commissioner; (2) Dr. Litman did not address Plaintiff’s precise work- 4 related limitations; (3) Dr. Litman relied heavily on Plaintiff’s subjective allegations; and

5 (4) during the period at issue, Plaintiff experienced “some” improvement in his 6 symptoms and was “mostly” able to resolve his anger issues without resorting to 7 violence. AR 38. 8 Regarding the ALJ’s first reason, a doctor’s opinion that it was unlikely that the 9 claimant could sustain full-time competitive employment is not a conclusion reserved to 10 the Commissioner, but is “an assessment based on objective medical evidence of [the 11 claimant’s] likelihood of being able to sustain full-time employment given the many 12 medical and mental impairments [claimant] faces and her inability to afford treatment for 13 those conditions.”). Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012). 14 As for the ALJ’s second reason, the fact that Dr. Litman did not assess work-

15 related limitations is not dispositive in this case. Dr. Litman’s opinion that Plaintiff “may 16 be a danger to himself or others” in the workplace is sufficiently clear concerning the 17 degree of Plaintiff’s mental limitations for a vocational expert to assess whether Plaintiff 18 could perform his past work at step four or other work at step five. 19 With respect to the ALJ’s third reason, Dr. Litman utilized objective measures 20 such as clinical interviews and mental status examinations in forming his opinion, and 21 there is no evidence that he relied largely on Plaintiff’s self-reports. See Buck v. 22 Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (a psychiatrist’s clinical interview and 23 MSE are “objective measures” which “cannot be discounted as a self-report.”)

24 1 As for the ALJ’s fourth reason, the fact that Plaintiff experienced “some” 2 improvement in his symptoms and was “mostly” able to control his anger during the 3 period at issue cannot serve as a specific and legitimate reason for discounting Dr. 4 Litman’s opinion given the significant consequences of even a single violent outburst in

5 the workplace. 6 Accordingly, the ALJ has not provided specific and legitimate reasons for 7 discounting Dr. Litman’s opinion. 8 2. Dr. Bhuta and Mr. Rhoads 9 On November 29, 2016, Dr. Bhuta and Mr. Rhoads opined that Plaintiff would be 10 unable to work due to chronic neck pain stemming from his degenerative disc disease. 11 AR 578. 12 The ALJ gave “little weight” to Dr. Bhuta and Mr. Rhoads’ opinion, reasoning that 13 it: (1) was inconsistent with the relatively mild objective evidence; (2) did not offer an 14 opinion concerning Plaintiff’s work-related limitations; (3) was inconsistent with

15 Plaintiff’s ability to engage in activities of daily living; and (4) offered an opinion on an 16 issue of disability reserved for the Commissioner. AR 39. 17 In citing the inconsistency of the medical evidence with the opinion of Dr. Bhuta 18 and Mr. Rhoads, the ALJ has provided a specific and legitimate reason for discounting 19 their opinion. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); Ghanim v. Colvin, 763 20 F.3d 1154, 1161 (9th Cir. 2014) (An ALJ may give less weight to medical opinions that 21 conflict with treatment notes). 22 Here, the ALJ’s finding that Dr. Bhuta and Mr. Rhoads’ opinion that Plaintiff could 23 not work due to his cervical impairment is supported by the medical record, which

24 1 reveals only mild foraminal narrowing, normal strength in Plaintiff’s extremities, and the 2 limited observations of pain behavior. AR 39, 371, 381, 417-18, 577, 579, 584, 588-90, 3 713-14, 724, 729, 747, 749-50, 753, 759-62. 4 Accordingly, the ALJ has provided a specific and legitimate reason for

5 discounting Dr. Bhuta and Mr. Rhoads’ opinion. 6 3. State agency consultants 7 Plaintiff contends that the ALJ erred in assigning “great weight” to the opinions of 8 non-examining state agency consultants Erik Kohler, M.D., Gordon Hale, M.D., Renee 9 Eisenhauer, Ph.D. and Michael Regets, Ph.D. Dkt. 21, p. 10. 10 Plaintiff contends that the ALJ erred by: (1) not considering the fact that none of 11 the non-examiners reviewed any evidence beyond April 2017; and (2) non-examining 12 physicians are generally entitled to less weight than the opinions of treating and 13 examining physicians. Id. 14 For reasons discussed in more detail below, additional evidence submitted after

15 the ALJ issued her decision on October 31, 2018 indicates that the opinions of Dr. 16 Eisenhauer and Dr. Regets concerning Plaintiff’s mental limitations are not only 17 inconsistent with the opinion of examining psychologist Dr. Litman, but also not 18 supported by substantial evidence. See infra Section IV.D; AR 1-7, 11-24. 19 However, the opinions of Dr. Kohler and Dr. Hale concerning Plaintiff’s physical 20 limitations are supported by substantial evidence for the reasons discussed above in 21 connection with the opinions of Dr. Bhuta and Mr. Rhoads. See Thomas v. Barnhart, 22 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or non- examining 23

24 1 physicians may also serve as substantial evidence when the opinions are consistent 2 with independent clinical findings or other evidence in the record.”). 3 B. Whether the ALJ erred in assessing Plaintiff’s testimony 4 Plaintiff contends that the ALJ erred by not providing clear and convincing

5 reasons for discounting his testimony. Dkt. 21, pp. 11-17. 6 In weighing a Plaintiff’s testimony, an ALJ must use a two-step process. Trevizo 7 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether 8 there is objective medical evidence of an underlying impairment that could reasonably 9 be expected to produce some degree of the alleged symptoms. Ghanim v. Colvin, 763 10 F.3d 1154, 1163 (9th Cir. 2014). If the first step is satisfied, and provided there is no 11 evidence of malingering, the second step allows the ALJ to reject the claimant’s 12 testimony of the severity of symptoms if the ALJ can provide specific findings and clear 13 and convincing reasons for rejecting the claimant’s testimony. Id. See Verduzco v. 14 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).

15 In discounting Plaintiff’s allegations, the ALJ reasoned that: (1) Plaintiff’s 16 allegations concerning his physical and mental impairments were inconsistent with the 17 medical record; (2) Plaintiff may have stopped working for reasons unrelated to 18 disability; (3) there are inconsistencies in Plaintiff’s statements concerning his 19 hallucinations; (4) Plaintiff experienced situational stressors during the period at issue; 20 (5) Plaintiff’s allegations are inconsistent with his activities of daily living; and (6) Plaintiff 21 received minimal treatment for his mental health impairments and improved with 22 treatment. AR 34-37. 23

24 1 With respect to the ALJ’s first reason, inconsistency with the objective evidence 2 may serve as a clear and convincing reason for discounting a claimant’s testimony. 3 Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 4 1998). But an ALJ may not reject a claimant’s subjective symptom testimony “solely

5 because the degree of pain alleged is not supported by objective medical evidence.” 6 Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (internal quotation marks 7 omitted, and emphasis added); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) 8 (applying rule to subjective complaints other than pain). 9 The ALJ’s second reason, that Plaintiff left work for reasons other than 10 disability—is not, standing alone, a sufficient reason for discounting Plaintiff’s testimony; 11 the evidence the ALJ cites in support of this proposition is, at best, ambiguous 12 concerning precisely why Plaintiff stopped working. AR 34; see Burrell v. Colvin, 775 13 F.3d 1133, 1140 (9th Cir. 2014) (holding that “one weak reason,” even if supported by 14 substantial evidence, “is insufficient to meet the ‘specific, clear and convincing’

15 standard” for rejecting a claimant’s testimony) (quoting Molina v. Astrue, 674 F.3d 1104, 16 1112 (9th Cir. 2012)). 17 As for the ALJ’s third reason, the apparent inconsistency of two of Plaintiff’s 18 statements concerning his hallucinations, and observations from therapists and nurses 19 that Plaintiff was not experiencing hallucinations on examination cannot serve as clear 20 and convincing reasons for discounting Plaintiff’s testimony concerning his mental 21 health symptoms. Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016) (quoting Tackett v. 22 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (the Court “cannot affirm . . . ‘simply by 23 isolating a specific quantum of supporting evidence,’ but ‘must consider the record as a

24 1 whole, weighing both evidence that supports and evidence that detracts from the 2 [Commissioner’s] conclusion.’”); Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 3 (claimants who suffer from mental conditions may have symptoms that wax and wane, 4 with downward cycles, cycles of improvement, and mixed results from treatment).

5 Regarding the ALJ’s fourth reason, it is the impairment that must prevent 6 performance of substantial gainful activity, not situational factors, such as job losses, 7 economic issues, or homelessness; and any impairment that does not last continuously 8 for twelve months does not satisfy the requirement. See 42 U.S.C. §§ 423(d)(1)(A): 9 ‘[D]isability’ means inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment 10 which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or . 11 . . .

12 42 U.S.C. §§ 423(d)(1)(A) (emphases added). 13 While the record indicates Plaintiff endured a series of significant exacerbating 14 personal stressors during the period at issue, the record also indicates Plaintiff has long 15 been struggling with mental health problems, often with legal consequences. AR 11-24, 16 424, 428-29, 442, 498-99, 504, 554, 562, 625, 647, 665-66, 673. 17 As for the ALJ’s fifth reason, a claimant’s participation in everyday activities 18 indicating capacities that are transferable to a work setting may constitute a clear and 19 convincing reason for discounting that claimant’s testimony. See Morgan v. Comm'r 20 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999). 21 Yet, disability claimants should not be penalized for attempting to lead normal 22 lives in the face of their limitations. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 23 24 1 1998), citing Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir.1987) (a disability claimant 2 need not “vegetate in a dark room” in order to be deemed eligible for benefits). 3 Here, the ALJ found that despite his allegations, Plaintiff was able to do yard work, 4 work as a diesel mechanic without compensation, take classes part-time, go out in public,

5 travel out of state, and spend time with his son. AR 37. 6 Plaintiff’s ability to engage in these routine, undemanding activities does not 7 constitute a clear and convincing reason for discounting Plaintiff’s testimony. Diedrich v. 8 Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (“House chores, cooking simple meals, self- 9 grooming, paying bills, writing checks, and caring for a cat in one’s own home, as well 10 as occasional shopping outside the home, are not similar to typical work 11 responsibilities.”). 12 Regarding the ALJ’s sixth reason, for the reasons discussed above in connection 13 with Dr. Litman’s opinion, the ALJ’s conclusion that Plaintiff’s mental health impairments 14 improved with treatment is not supported by substantial evidence. See supra Section

15 IV.A. 16 Accordingly, the ALJ has not provided clear and convincing reasons for 17 discounting Plaintiff’s testimony concerning her mental health symptoms. 18 C. Whether the ALJ erred in evaluating lay witness statements 19 Plaintiff contends that the ALJ erred in not evaluating the observations of SSA 20 interviewer K. Wreggit. Dkt. 21, p. 17. 21 Agency employee Wreggit had a face-to-face meeting with Plaintiff on November 22 28, 2016, during which she observed that Plaintiff appeared nervous, could not sit well, 23 and was distracted by sounds. AR 299-300.

24 1 The ALJ did not cite the observations of employee Wreggit in evaluating the 2 opinion evidence. 3 In evaluating the record, an ALJ may consider observations by agency 4 personnel. See Social Security Ruling (“SSR”) 16-3p (“Other evidence that we will

5 consider includes statements from . . . any other sources that might have information 6 about the individual’s symptoms, including agency personnel.”); see also 20 C.F.R. § § 7 404.1529(c)(3), 416.927(c)(3) (“We will consider all of the evidence presented, including 8 . . . observations by our employees and other persons.”). 9 Yet the ALJ is not required to “discuss all evidence presented”. Vincent on Behalf 10 of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) 11 (emphasis in original). The ALJ must only explain why “significant probative evidence 12 has been rejected.” Id. 13 Here, the observations of employee Wreggit were based upon a brief encounter 14 with Plaintiff, and were intended to gather basic information about Plaintiff’s condition,

15 not to provide testimony about his functional limitations. Crane v. Shalala, 76 F.3d 251, 16 254 (9th Cir. 1996) (finding that an individual must have “sufficient contact” with the 17 claimant during the period at issue “to qualify as a competent lay witness.”). 18 Accordingly, the ALJ did not err in declining to assess this evidence. 19 D. Additional evidence 20 The record contains evidence submitted by Plaintiff after the ALJ issued his 21 decision. AR 11-24, 102-08. The Appeals Council denied review of Plaintiff’s claim and 22 opted not to exhibit this evidence, reasoning that it did not relate to the period at issue 23 or that it did not show a reasonable probability of changing the outcome. AR 2.

24 1 This Court must consider this additional material in determining whether the 2 ALJ’s decision is supported by substantial evidence. See Brewes v. Commissioner of 3 Social Security, 682 F.3d 1157, 1160 (9th Cir. 2012) (when a claimant submits evidence 4 for the first time to the Appeals Council, which considers that evidence in denying

5 review of the ALJ's decision, the new evidence is part of the administrative which the 6 district court must consider in determining whether the Commissioner's decision is 7 supported by substantial evidence). 8 Here, the evidence in question consists of treatment notes from 2018 and 2019 9 detailing Plaintiff’s ongoing mental health symptoms, a February 28, 2018 from Dr. 10 Bhuta and Mr. Rhoads, and early treatment notes concerning Plaintiff’s physical 11 condition. AR 11-24, 102-08. The ALJ shall evaluate this evidence on remand. 12 E. Remand for Further Proceedings 13 Plaintiff asks this Court to remand this case for an award of benefits. Dkt. 21, pp 14 18-19. “‘The decision whether to remand a case for additional evidence, or simply to

15 award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 16 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If 17 an ALJ makes an error and the record is uncertain and ambiguous, the court should 18 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 19 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy 20 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d 21 at 668. 22 The Ninth Circuit has developed a three-step analysis for determining when to 23 remand for a direct award of benefits. Such remand is generally proper only where

24 1 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 2 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited 3 evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 4 Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 5 2014)). The Ninth Circuit emphasized in Leon v. Berryhill that even when each element 6 is satisfied, the district court still has discretion to remand for further proceedings or for 7 award of benefits. 80 F.3d 1041, 1045 (9th Cir. 2017). 8 Here, the ALJ erred in evaluating the opinion of Dr. Litman and Plaintiff’s 9 testimony concerning his mental health impairments, and must evaluate additional 10 evidence received after the ALJ issued his decision. Accordingly, remand for further 11 proceedings is the appropriate remedy. 12 CONCLUSION 13 Based on the foregoing discussion, the Court finds the ALJ erred when she found 14 Plaintiff to be not disabled. Defendant’s decision to deny benefits is therefore 15 REVERSED and this matter is REMANDED for further administrative proceedings. 16 The ALJ is directed to re-assess the opinions of Dr. Litman, Plaintiff’s testimony 17 concerning her mental impairments, and the additional post-hearing evidence on 18 remand. 19 Dated this 8th day of April, 2021. 20 A

21 Theresa L. Fricke United States Magistrate Judge 22

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