Sheppard v. Commissioner of Social Security

Opinion

1 2 3 WESTERN DISTRICT OF WASHINGTON 6 || NATHANIEL S., Case No. 2:21-cv-0286-DWC 7 Plaintiff, V. ORDER REVERSING AND 8 REMANDING DEFENDANT’S ACTING COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 10 Defendant. 11 12 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of defendant’s 13 || denial of plaintiff's applications for supplemental security income (“SSI”) and disability 14 || insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, 15 |} and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned 16 || Magistrate Judge. See Dkt. 2. This matter is fully briefed. See Dkts. 13, 19, 20. 17 Plaintiff's disability claims largely are based on mental impairments such as generalized 18 || anxiety disorder, depressive disorder and bipolar disorder. See AR 18. The ALJ reviewing 19 || plaintiffs disability claim appears to have misread the medical records being reviewed, not 20 || understanding some medical records were provided by a treating doctor, and other consulting 21 || opinions of marked limitations were based on those records. See AR 30. Because the ALJ’s 22 || rationalc for failing to credit fully the medical opinions is not supported by substantial evidence, 23 || and because the ALJ’s errors when reviewing the medical evidence are not harmless, plaintiffs 24 25

1 || claim for disability must be reviewed again by the Administration following remand of this 2 || matter. 4 On May 23, 2018, plaintiff filed applications for DIB and SSI, alleging disability as of 5 || February 26, 1989, later revised to February 13, 2018. See Dkt. 11, Administrative Record 6 (“AR”), p. 15. The applications were denied on initial administrative review and on 7 || reconsideration. See AR 15. A hearing was held before Administrative Law Judge M.J. Adams 8 || (‘the ALJ”) on July 14, 2020. See AR 15. In a decision dated August 03, 2020, the ALJ 9 || determined plaintiff to be not disabled. See AR 12-. Plaintiff's request for review of the ALJ’s 10 || decision was denied by the Appeals Council, making the ALJ’s decision the final decision of the 11 |} Commissioner of Social Security (“Commissioner”). See AR 1-6; 20 C.F.R. § 404.981, § 12 416.1481. Although there was a prior unfavorable decision on earlier applications dated February 13 || 12, 2018 by ALJ Malcom Ross, the presumption of continuing non-disability was found to be 14 || rebutted by the ALJ “because [plaintiff] has a new mental impairment diagnosis since the prior 15 || decision.” AR 15; see also AR (“[plaintiff’s] diagnosis shifted to bipolar disorder’). 16 In plaintiffs Opening Brief, plaintiff maintains the ALJ erred by: (1) rejecting the 17 || medical opinions from Drs. Epp, Burdge, and VanFossen without proper evaluation; (2) failing 18 || to weigh the medical opinions from Drs. Valmet, Sylvester, and Greenfield, conclusively 19 || rejecting them without consideration; and (3) failing to consider properly the nature and intensity 20 || of plaintiff's limitations and failing to offer clear and convincing reasons for rejecting plaintiff's 21 || subjective complaints. “Open,” Dkt. 13, p. 1. Defendant contends the ALJ reasonably evaluated 22 || the medical opinions, as well as plaintiff's subjective allegations. “Response,” Dkt. 19, p. 1. 23 24 25

2 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of 3 || Social Security benefits if the ALJ's findings are based on legal error or not supported by 4 || substantial evidence in the record as a whole. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 5 || 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as 6 || adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal 7 || citations omitted). 9 I. The ALJ erred when evaluating the medical evidence. 10 Plaintiff contends the ALJ erred when evaluating the medical evidence, such as the 11 |} medical opinion evidence provided by Drs. Epp, Burdge, VanFossen, Valmet, Sylvester, and 12 || Greenfield. Open, Dkt. 13, p. 1. Defendant contends the ALJ reasonably evaluated the medical 13 |] opinions. Response, Dkt. 19, p. 1. According to the ALJ, plaintiff suffered from the severe 14 || impairments of: “autism spectrum disorder; generalized anxiety disorder; depressive disorder; 15 || bipolar disorder; attention-deficit hyperactivity disorder (ADHD); and fibromyalgia (20 CFR 16 || 404.15 20(c) and 416. 920(c)).” AR 18. 17 In 2017, the Commissioner issued new regulations governing how ALJs are to evaluate 18 || medical opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 19 || Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, for claims filed 20 || on or after March 27, 2017, the Commissioner “will not defer or give any specific evidentiary 21 || weight... to any medical opinion(s) . . . including those from [the claimant’s| medical sources.” 22 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ must nonetheless explain with specificity how 23 || he or she considered the factors of supportability and consistency in evaluating the medical 24 25

1 || opinions. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). That explanation must be legitimate, 2 || as the Court will not affirm a decision that is based on legal error or not supported by substantial 3 || evidence. See Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Thus, the regulations 4 || require the ALJ to provide specific and legitimate reasons to reject a doctor’s opinions. See also 5 || Kathleen G. v. Comm’r of Soc. Sec., No. C20-461 RSM, 2020 WL 6581012 at *3 (W.D. Wash. 6 || Nov. 10, 2020) (unpublished opinion) (finding that the new regulations do not clearly supersede 7 || the “specific and legitimate” standard because the “specific and legitimate” standard refers not to 8 || how an ALJ should weigh or evaluate opinions, but rather the standard by which the Court 9 || evaluates whether the ALJ has reasonably articulated his or her consideration of the evidence). 10 As plaintiff filed the claim on May 23, 2018, the ALJ applied new regulations. Response 11 || 11-13. Therefore, based on the above considerations, the Court will determine whether the ALJ’s 12 || decision is free of legal error and supported by substantial evidence. 13 A. Dr. Aaron Burdge, PhD, non-examining medical consultant 14 On February 14, 2018, Dr. Burdge reviewed medical records from Dr. Anthony 15 || Terndrup, Ph.D. dated December 20, 2017 in order to assess the severity of plaintiff's mental 16 || impairments in functioning. See AR 722. Dr. Burdge opined plaintiff experienced marked 17 || limitation in various work-related abilities, such as: the ability to understand, remember, and 18 || persist in tasks by following very short and simple, or detailed, instructions; the ability to 19 || perform activities within a schedule, maintaining regular attendance, and be punctual within 20 || customary tolerances; the ability to perform routine tasks without special supervision; the ability 21 || to adapt to changes in a routine work setting; the ability to make simple work-related decisions; 22 || the ability to communicate and perform effectively in a work setting; the ability to complete a 23 normal workday and workweek without interruptions from psychologically based symptoms; 24 25

1 || and, the ability to set realistic goals and plan independently. See AR 723. Dr. Burdge assessed 2 || these limitations resulted from plaintiff's functional symptoms of disorientation, disorganized 3 || speech, grossly disorganized behavior, and paranoia. See AR 724. Dr. Burdge indicated the 4 || diagnoses which impaired plaintiff's work function listed in the medical records of plaintiff 5 || included schizophrenia spectrum or other psychotic disorder, as well as autism spectrum 6 || disorder. See id. 7 As noted, the medical reports Dr. Burdge indicated he relied on were the medical records 8 || of Dr. Terndrup, such as Dr. Terndrup’s December 20, 2017 medical evaluation. See AR 722. 9 || Despite defendant’s argument “there is no assessment from that date or provider in the record,” 10 |} the record reflects on December 20, 2017, Dr. Terndrup noted plaintiff “described and 11 || acknowledged h[er] disorganized speech as ‘rambling’ and ‘tangential.’” See AR 665; see also 12 || Response 15. Defendant’s argument is unavailing based on the record. See id. 13 Dr. Terndrup also examined and assessed plaintiff on December 13, 2017; January 17, 14 January 24, 2018; January 31, 2018; February 7, 2018; February 21, 2018; February 28, 15 March 7, 2018; March 14, 2018; March 21, 2018; and, April 27, 2018. These records can 16 || be found in the administrative record at pages 639-50, and 661-67. See AR 69-50, 661-67. 17 || Although defendant contends “the source of the limitations Dr. Burdge reviewed is unclear,” 18 || these medical records from Dr. Terndrup demonstrate otherwise. See id. Not only is the specific 19 || record from Dr. Terndrup on December 20, 2017 clearly available in the record when plaintiff 20 || “described and acknowledged h[er] disorganized speech as ‘rambling’ and ‘tangential,’” see AR 21 || 665, but also, the additional records noted above from Dr. Terndrup also are in the record and 22 || were available to the ALJ. However, as discussed further below, the ALJ does not appear to have 23 |} evaluated these records from the treating doctor, and therefore as a necessity, did not have the 24 25

1 || ability to assess accurately their consistency with the rest of the record or with the opinion of 2 || marked limitations from Dr. Burdge. See AR 30. Furthermore, plaintiff argues these cited 3 || records “directly reflect and support the difficulties identified in Dr. Burdge’s opinion.” Open 11 4 || (citing AR 723); see also open 9-11. 5 In the written decision denying plaintiffs claims, the ALJ included the following 6 || discussion: 7 The record also contains DSHS Review of Medical Evidence assessment forms assigned to Dr. Burdge and Dr. VanFossen, both non-examining psychological 8 consultants, for review of prior opinions and records. Respectively, these forms contain the functional ratings from a December 2017 evaluation by DSHS 9 examiner Dr. Terndrup (internal citation to B14 F/1-3) and from Dr. Epp’s May 2019 evaluation, addressed above. However, Dr. Terndrup’s objective 10 findings and notes are not included with the form assigned to Dr. Burdge, and completed reviews by Dr. Burdge and Dr. VanFossen are not included. As to 11 Dr. Burdge’s form, this leaves a bare record of Dr. Terndrup’s marked ratings, prior to the period at issue and with no context from his examination. Dr. 12 Terndrup’s opinion is unsupported and Dr. Burdge’s is not included. Thus, Dr. Terndrup’s opinion is not persuasive. 13 AR 30. 14 First, the Court notes the ALJ begins the discussion by incorrectly indicating the 15 assessment form from Dr. Burdge contains “the functional ratings from a December 2017 16 evaluation by DSHS examiner Dr. Terndrup.” /d. (internal citation to B14 F/1-3, i.e., AR 722- 17 24). However, as noted by plaintiff, Dr. Terndrup is not a DSHS examiner, but instead is a 18 treating doctor of plaintiff, “and it was in fact medical treatment records that Dr. Burdge 19 reviewed.” See Open 8 (citing AR 69-50, 661-67). Plaintiffs argument is persuasive: the ALJ 20 initiates the discussion with a clear misunderstanding of the record. See id.: see also AR 30. 21 Next, the ALJ indicates Dr. Terndrup’s objective findings and notes are not included with 22 the form assigned to Dr. Burdge, and a complete review by Dr. Burdge is not included; however, 23 Dr Terndrup’s objective findings and notes are included in the record that was before the ALJ, as 24 25

1 || the Court has briefly reviewed them above, see supra, and also, there is a functional assessment 2 || by Dr. Burdge -- the fact that Dr. Burdge did not answer other questions on the form is not a 3 || rationale based on substantial evidence to discount the very relevant opinions regarding work- 4 || related functional limitations that are included on the form. See AR 30; see also AR 723-24. 5 The ALJ finds that Dr. Burdge’s opinion is only suppoted by “a bare record of Dr. 6 || Terndrup’s marked ratings, prior to the period at issue and with no context from his 7 || examination.” See AR 30. However, not only is this finding not based on substantial evidence, it 8 || is simply inaccurate. The Court already has noted the context from Dr. Terndrup’s treating 9 || examinations and the multitude of examination medical records included in this administrative 10 |} record before the Court that was before the ALJ. See supra; see also AR 69-50, 661-67 (noting 11 |} when Dr. Terndrup examined and assessed plaintiff on December 13, 2017; January 17, 2018; 12 || January 24, 2018; January 31, 2018; February 7, 2018; February 21, 2018; February 28, 2018; 13 || March 7, 2018; March 14, 2018; March 21, 2018; and, April 27, 2018). This is a highly relevant 14 || period of time, as plaintiffs (revised) alleged onset date of disability is February 13, 2018. See 15 |} AR 15. The ALJ’s finding otherwise is not based on substantial evidence in the record. 16 The Court concludes based on the record the ALJ’s findings that “Dr. Terndrup’s opinion 17 unsupported and Dr. Burdge’s is not included” is inaccurate, reflects a misunderstanding of the 18 || record, and is not supported by substantial evidence in the record. See AR 30. 19 The ALJ’s finding Dr. Terndrup’s opinion is not persuasive is not explained or 20 || substantiated and it is unclear which opinion the ALJ is referring to here. This finding does not 21 || support the rejection of the marked limitations opined by Dr. Burdge. As nothing else in the 22 || ALJ’s discussion provide substantial evidence in support of the rejection of the marked 23 |} limitations opined by Dr. Burdge, the ALJ’s failure to include them in plaintiffs residual 24 25

1 || functional capacity (“RFC”) assessment is error. Because the Court also concludes that the error 2 not harmless, this matter must be reversed and remanded. 3 B. Medical opinions slightly predating revised alleged onset date of February 13, 2018 4 In addition, the ALJ appears to have rejected some medical opinions on the basis that 5 || they were provided shortly before the relevant period of time; however, plaintiff's argument that 6 || all medical opinions are relevant and that it is insufficient for the ALJ to rely only on this 7 || rationale is persuasive. See Open 13 (citing 20 C.F.R. Section 416. 920c (“we will articulate in 8 || our determination or decision how persuasive we find all of the medical opinions and all of the 9 || prior administrative medical findings in your case record’); Shafer v. Astrue, 518 F.3d 1067, 10 || 1069 (9" Cir. 2008); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984); see also Open 11 || 13-15 (citing Williams v. Astrue, 493 F.App’x 866, 868 (9"" Cir 2012). These opinions too should 12 || be assessed anew following remand of this matter. 13 II. The error is not harmless. 14 The Ninth Circuit has “long recognized that harmless error principles apply in the Social 15 || Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. v. 16 || Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). An error is harmless if it is 17 || ‘‘inconsequential to the ultimate non[-]disability determination.’” Molina, supra, 674 F.3d at 18 |} 1117 (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). 19 Here, the Court has concluded the ALJ erred when evaluating Dr. Burdge’s medical 20 || opinion of plaintiff's marked limitations, see supra, Section I. Plaintiff argues the ALJ’s 21 || “improper evaluation resulted in an incomplete RFC assessment and corollary hypothetical 22 || questions to the vocational expert.” Open 19. Plaintiff further argues when an ALJ relies on 23 || vocational expert (“VE”) testimony that was provided “in response to an incomplete 24 25

1 || hypothetical, reversal of the ALJ’ decision is mandated.” /d. (citing Young v. Colvin, 2014 U.S. 2 || Dist. LEXIS 82530 at *13 (W.D. Wash June 17, 2014)). Plaintiff's argument is persuasive. 3 At plaintiff's administrative hearing, the VE testified regarding “tolerance in the 4 || workplace for interpersonal conflict .... If there [are] difficulties for whatever reason,” if it 5 || occurs more than 15% of the time throughout the day, according to the VE “it would not be 6 || tolerated.” AR 79. As noted previously, Dr. Burdge opined plaintiff suffered from many marked 7 || limitations, including in her ability to communicate and perform effectively in a work setting; in 8 || her ability to understand, remember, and persist in tasks by following very short and simple 9 || instructions; and in her ability to perform routine tasks without special supervision, as well as in 10 || her ability to complete a normal workday and workweek without interruptions from 11 || psychologically based symptoms. See AR 723. The VE’s testimony suggests these marked 12 |} limitations would preclude work activity for plaintiff, and that her limitations would “not be 13 || tolerated.” See AR 79. Therefore, the Court concludes the ALJ’s failure to provide substantial 14 || evidence in the record for failing to credit Dr. Burdge’s opinion of marked limitations into the 15 || RFC is not harmless error and this matter must be reversed and remanded for further 16 || proceedings. See Molina, supra, 674 F.3d at 1117 (quoting Carmickle, supra, 533 F.3d at 1162). 17 IW. The ALJ erred when assessing plaintiff’s subjective claims. 18 Plaintiff contends the ALJ erred by failing to provide sufficient reasons for not 19 || incorporating fully plaintiff's subjective claims; however, the Court already has concluded the 20 || ALJ committed harmful error and the medical evidence should be reviewed anew, see supra, 21 || Sections I and II. In addition, a determination of a claimant’s credibility relies in part on the 22 || assessment of the medical evidence. See 20 C.F.R. § 404.1529(c). Therefore, plaintiffs 23 |} credibility should be assessed anew following remand of this matter. 24 25

1 However, the Court notes briefly defendant justifies the ALJ’s reliance on some irregular 2 || part-time work as demonstrating an inconsistency with plaintiffs allegations that when under 3 || stress she cannot perform even simple tasks. See Response 8. However, neither the ALJ in the 4 || written decision, nor defendant in support of it, has cited to any portion of the record 5 || demonstrating plaintiff was doing this part-time irregular housecleaning when she was in periods 6 || of high stress or decreased functioning: the ALJ has found severe plaintiffs bipolar disorder, 7 || hence variability is consistent with the allegations and is expected. See AR 18. There does not 8 || appear to be any inconsistency. 9 Similarly, failure to engage in therapeutic treatment for mental health can indicate the 10 || mental health problems are not severe, but it also can indicate the mental health problems are so 11 |} severe the person does not have appropriate insight into the need for therapy. A person suffering 12 || from a mental illness may not realize her “condition reflects a potentially serious mental illness.” 13 || Van Neuyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). “‘[I]t is a questionable practice to 14 || chastise one with a mental impairment for the exercise of poor judgment in seeking 15 || rehabilitation.’” Jd. (quoting with approval, Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 16 || 1989)). 17 Based on the record before the Court, the ALJ’s finding the inconsistent treatment 18 || supports that treatment was not necessary at a minimum requires more substantial evidence than 19 || exists in the decision currently. Similarly, that plaintiff sometimes demonstrated appropriate 20 || affect when she claims to sometimes feel otherwise appears to be based on specialist opinions 21 || entirely consistent with the diagnosis of bipolar disorder and does not demonstrate that she does 22 |} not have mood disorder limitations. Finally, improvement does not necessarily mean 23 24 25

1 || improvement to a point of ability to work full-time: a closed period of disability is a possibility 2 || based on this record. All of this should be reviewed again following remand of this matter. 4 Based on the foregoing discussion, the Court concludes the ALJ improperly determined 5 || plaintiff to be not disabled. The medical opinion of Dr. Burdge was rejected without substantial 6 || evidence in support of the rejection and this error is not harmless. Therefore, the ALJ’s decision 7 ||is reversed and remanded for further administrative proceedings in accordance with the findings 8 || contained herein. 9 Dated this 20th day of December, 2021. 10 Dyfolhwiike David W. Christel 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25