Shyliuk v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 5, 2020
• Docket: 2:19-cv-01620
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 PETRO S., CASE NO. 2:19-CV-1620-DWC 11 Plaintiff, ORDER 12 v.

13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 I. INTRODUCTION 16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 17 Defendant’s denial of Plaintiff’s application for supplemental security income (“SSI”). Pursuant 18 to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties 19 have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. 20 After considering the record, the Court concludes the administrative law judge (“ALJ”) 21 erred by failing to give specific and legitimate reasons for rejecting the opinions of examining 22 psychologist Holly Petaja, Ph.D. Had the ALJ properly considered Dr. Petaja’s opinions, the ALJ 23 may have found Plaintiff disabled or may have included additional limitations in the residual 24 1 functional capacity assessment. This matter is therefore reversed and remanded pursuant to 2 sentence four of 42 U.S.C. § 405(g) to the Commissioner of Social Security (“Commissioner”) 3 for further proceedings consistent with this Order. 4 II. FACTUAL AND PROCEDURAL HISTORY

5 Plaintiff filed an application for SSI in May 2016, alleging disability as of June 5, 2002. 6 See Dkt. 8, Admin. Record (“AR”) 67, 164–74. The application was denied on initial 7 administrative review, and on reconsideration. See AR 67–78, 80–92. A hearing was held before 8 ALJ Larry Kennedy on May 17, 2018. See AR 41–65. In a decision dated September 17, 2018, 9 the ALJ determined Plaintiff to be not disabled. See AR 24–35. The Appeals Council denied 10 review, making the ALJ’s decision the final decision of the Commissioner. See AR 1–3; 20 11 C.F.R. § 416.1481. 12 In Plaintiff’s opening brief, he maintains the ALJ erred by (1) rejecting the opinions of 13 Dr. Petaja; and (2) failing to address statements from Melissa Hernandez, MHP, CDPT, and Ivko 14 Pejovic, LMHC, MHP. Dkt. 10, p. 1.

15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 17 social security benefits if the ALJ’s findings are based on legal error or not supported by 18 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 19 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 20 IV. DISCUSSION 21 A. Whether the ALJ Erred in Rejecting Dr. Petaja’s Opinions 22 Plaintiff contends the ALJ erred in rejecting examining psychologist Dr. Petaja’s 23 opinions. Dkt. 10, pp. 3–13. Dr. Petaja issued two opinion statements, one after examining

24 1 Plaintiff in August 2016, and another after examining Plaintiff in January 2018. See AR 279–85, 2 544–48. The ALJ treated each statement separately, and the Court will do the same. 3 1. The ALJ Erred in Rejecting Dr. Petaja’s August 2016 Opinions 4 Dr. Petaja examined Plaintiff on August 2, 2016. See AR 279–85. Dr. Petaja opined that

5 Plaintiff had marked limitations in his ability to perform a number of basic work activities, 6 including the ability to understand, remember, and persist in tasks by following detailed 7 instructions; perform activities within a schedule; adapt to changes in a routine work setting; and 8 maintain appropriate behavior in a work setting. See AR 281. 9 The ALJ gave Dr. Petaja’s August 2016 opinions little weight. AR 32. The ALJ reasoned 10 that Dr. Petaja’s opinions were inconsistent with the medical evidence and Dr. Petaja’s own 11 examination findings. Id. The ALJ further reasoned that Dr. Petaja relied heavily on Plaintiff’s 12 self-reports, and “did not review the longitudinal treatment records prior to offering her 13 opinions.” Id. 14 The ALJ erred in rejecting Dr. Petaja’s opinions as inconsistent with the medical

15 evidence. An ALJ may only reject the opinions of an examining doctor when contradicted if the 16 ALJ provides “specific and legitimate reasons that are supported by substantial evidence in the 17 record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 18 F.3d at 1035, 1043 (9th Cir. 1995)). The ALJ can satisfy this requirement “by setting out a 19 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 20 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 21 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ may not reject 22 a medical opinion “with boilerplate language that fails to offer a substantive basis for” the ALJ’s 23 conclusion. Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (citing Nguyen v. Chater,

24 1 100 F.3d 1462, 1464 (9th Cir. 1996)). Here, the ALJ merely stated that Dr. Petaja’s August 2016 2 opinions were “not consistent with or supported by the longitudinal evidence of record.” AR 32. 3 This was not a specific enough reason to reject Dr. Petaja’s August 2016 opinions. 4 The ALJ also erred in rejecting Dr. Petaja’s August 2016 opinions as inconsistent with

5 her own exam findings. The ALJ gave two examples to show his reasoning, but neither survives 6 scrutiny. First, the ALJ found inconsistent Dr. Petaja’s opinion that Plaintiff was markedly 7 limited in his ability to persist in a normal work day or week and her exam finding that Plaintiff 8 arrived on time for his appointment. See AR 32. But the ability to arrive on time for one medical 9 appointment that almost certainly lasted less than a full work day does not refute Dr. Petaja’s 10 opinion that Plaintiff was markedly limited in his ability to work a full week of normal work 11 days. 12 Second, the ALJ found inconsistent Dr. Petaja’s opinion that Plaintiff had marked social 13 functioning limitations, but had adequate hygiene and attire, spoke at a normal rate, rhythm, and 14 volume, and was polite and cooperative during the exam. See id. But again, the ability to present

15 oneself in a reasonable manner to a medical provider specifically trained to interact with 16 individuals with mental limitations does not refute a finding that Plaintiff was, for example, 17 markedly limited in his ability to communicate and perform effectively in a normal work setting. 18 Cf. 20 C.F.R. § 404, Subpart P, App’x 1, § 12.00(C)(6)(b) (2016) (“Your ability to complete 19 tasks in settings that are highly structured, or that are less demanding or more supportive than 20 typical work settings does not necessarily demonstrate your ability to complete tasks in the 21 context of regular employment during a normal workday or work week.”). The ALJ thus erred in 22 rejecting Dr. Petaja’s August 2016 opinions as inconsistent with her exam findings. 23

24 1 The ALJ next erred in rejecting Dr. Petaja’s August 2016 opinions for being too heavily 2 based on Plaintiff’s self-reports. Psychological evaluations may appear to rely heavily on the 3 patient’s self-reports, especially compared to evaluation in other medical fields, “[b]ut such is the 4 nature of psychiatry.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). “‘[U]nlike a

5 broken arm, a mind cannot be x-rayed.’” Id. (quoting Poulin v. Bowen, 817 F.2d 865, 873 (D.C. 6 Cir. 1987)). “Thus, the rule allowing an ALJ to reject opinions based on self-reports does not 7 apply in the same manner to opinions regarding mental illness.” Buck, 869 F.3d at 1049. Dr. 8 Petaja did not just rely on Plaintiff’s self-reports, but performed a clinical interview and mental 9 status examination, both of which “are objective measures and cannot be discounted as a ‘self- 10 report.’” Id. The ALJ thus erred in rejecting Dr. Petaja’s opinions as too heavily based on 11 Plaintiff’s self-reports. 12 Finally, the ALJ erred in rejecting Dr. Petaja’s opinions on the basis that she did not 13 review any medical records before forming her opinions. Although a doctor’s knowledge of the 14 overall record is important, the ALJ did not point to any records Dr. Petaja failed to review or

15 explain how they might have changed her opinions. And, as a practical matter, Plaintiff came to 16 the United States from Ukraine roughly five months before Dr. Petaja saw him, so there are very 17 few medical records available that Dr. Petaja even could have reviewed before issuing her 18 opinions. The ALJ’s reasoning here was not specific, and thus the ALJ erred in rejecting Dr. 19 Petaja’s August 2016 opinions. 20 2. The ALJ Erred in Rejecting Dr. Petaja’s January 2018 Opinions 21 Dr. Petaja examined Plaintiff again on January 31, 2018. See AR 544–48. Dr. Petaja’s 22 opinions remained largely the same as her 2016 opinions, except she found Plaintiff moved from 23 markedly limited to severely limited in his ability to “[p]erform activities within a schedule,

24 1 maintain regular attendance, and be punctual within customary tolerances without special 2 supervision,” and “[c]omplete a normal work day and work week without interruptions from 3 psychologically based symptoms.” AR 546. 4 The ALJ gave Dr. Petaja’s January 2018 opinions little weight. AR 32–33. The ALJ gave

5 the same reasons for rejecting Dr. Petaja’s January 2018 opinions as he gave for rejecting Dr. 6 Petaja’s August 2016 opinions. See AR 32–33. Those reasons fail based on the same analysis 7 given above. See supra Part IV.A.1. 8 The ALJ gave one additional reason for rejecting Dr. Petaja’s January 2018 opinions: she 9 is not an expert on social security-specific disability evaluations. See AR 33. Once again, the 10 ALJ’s reasoning is too conclusory. An ALJ may certainly consider a medical expert’s knowledge 11 of the standards for disability in the social security context, but the ALJ still must provide some 12 explanation for how an alleged lack of knowledge detracts from the expert’s medical opinion. 13 See Garrison, 759 F.3d at 1012–13. The ALJ failed to provide any explanation, and therefore 14 failed to give any specific and legitimate reasons for rejecting Dr. Petaja’s January 2018

15 opinions. The ALJ consequently erred. 16 B. Whether the ALJ Erred by Failing to Address Statements from Ms. Hernandez and Mr. Pejovic 17 Plaintiff contends the ALJ failed to address statements from treating mental health 18 counselors Ms. Hernandez and Mr. Pejovic. Dkt. 10, pp. 2–3. Ms. Hernandez performed an 19 intake assessment of Plaintiff for mental health services on May 17, 2016. See AR 351–60. In a 20 section titled “[f]unctional status,” Ms. Hernandez reported that, among other things, Plaintiff “is 21 unable to work and struggles with interpersonal relationships due to mental health symptoms.” 22 AR 351–52. Mr. Pejovic was Plaintiff’s mental health counselor, seeing him weekly from 23 December 2016 through March 2018. See AR 430–68, 481–530, 549–699. He completed intake 24 1 assessment forms on April 28, 2017, October 4, 2017, and November 8, 2017, which contained 2 the same language as Ms. Hernandez’s assessment, that Plaintiff “is unable to work and struggles 3 with interpersonal relationships due to mental health symptoms.” See AR 523–24, 629–30, 647– 4 48.

5 It is unclear from the record whether the statements from Ms. Hernandez and Mr. Pejovic 6 were intended as medical opinions. Nonetheless, the ALJ did not address them. Because this 7 matter is being remanded for reevaluation of Dr. Petaja’s opinions, the ALJ should consider the 8 statements from Ms. Hernandez and Mr. Pejovic on remand. 9 C. Scope of Remand 10 Plaintiff asks the Court to remand this matter for further administrative proceedings. Dkt. 11 10, p. 13. The Court agrees that this is the appropriate remedy. See McCartey v. Massanari, 298 12 F.3d 1072, 1076 (9th Cir. 2002). On remand, the ALJ shall reevaluate Dr. Petaja’s opinions, and 13 consider the statements from Ms. Hernandez and Mr. Pejovic. The ALJ shall conduct all further 14 proceedings necessary to reevaluate the disability determination in light of this opinion.

15 V. CONCLUSION 16 Based on the foregoing reasons, the Court finds that the ALJ improperly concluded 17 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 18 this matter is remanded for further administrative proceedings in accordance with the findings 19 contained herein. 20 Dated this 5th day of March, 2020. 21 A 22 David W. Christel United States Magistrate Judge 23 24