1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Apr 19, 2021 2 3 SEAN F. MCAVOY, CLERK 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON
11 TERESA S., No. 1:20-CV-03053-JTR
12 Plaintiff, ORDER GRANTING IN PART 13 PLAINTIFF’S MOTION FOR v. SUMMARY JUDGMENT AND 14 REMANDING FOR ADDITIONAL 15 ANDREW M. SAUL, PROCEEDINGS 16 COMMISSIONER OF SOCIAL SECURITY 17
18 Defendant.
19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 No. 20, 31. Attorney D. James Tree represents Teresa S. (Plaintiff); Special 21 Assistant United States Attorney Martha Boden represents the Commissioner of 22 Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 6. After reviewing the administrative record and the 24 briefs filed by the parties, the Court GRANTS IN PART Plaintiff’s Motion for 25 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 26 REMANDS the matter to the Commissioner for additional proceedings pursuant to 27 42 U.S.C. § 405(g). 28 1 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on August 20, 2014, alleging disability since 4 January 12, 2011, due to back pain, headaches, left arm pain and numbness, neck 5 pain, memory loss, depression, anxiety, hypertension, thyroid problem, and 6 diabetes. Tr. 84-85. The applications were denied initially and upon 7 reconsideration. Tr. 144-52, 155-67. Administrative Law Judge (ALJ) Virginia 8 Robinson held a hearing on February 9, 2017, Tr. 40-83, and issued an unfavorable 9 decision on November 29, 2017, Tr. 16-30. Plaintiff requested review by the 10 Appeals Council and the Appeals Council denied Plaintiff’s request for review on 11 August 31, 2018. Tr. 1-5. Plaintiff filed a civil action in this court and on April 17, 12 2019, the court issued the parties’ stipulated motion to remand for further 13 proceedings. Tr. 1401-02. 14 On December 31, 2019, ALJ Robinson held a remand hearing, Tr. 1302-24, 15 and on February 5, 2020, she issued a second unfavorable decision. Tr. 1264-90. 16 Plaintiff did not file written exceptions with the Appeals Council and the Appeals 17 Council did not review the decision on its own motion; therefore the ALJ’s 18 February 2020 decision became the final decision of the Commissioner, which is 19 appealable to the district court pursuant to 42 U.S.C. § 405(g). Tr. 1262. Plaintiff 20 filed this action for judicial review on April 23, 2020. ECF No. 1. 21 STATEMENT OF FACTS 22 Plaintiff was born in 1966 and was 44 years old as of her alleged onset date. 23 Tr. 84. She has a high school education and worked primarily as a home aid 24 caregiver and nurse assistant. Tr. 73, 393. She has experienced a number of 25 physical incidents, including being assaulted by a patient in 2004 and being in a 26 motor vehicle accident in 2009. Tr. 524, 2064. In 2011 she had surgery on her left 27 shoulder. Tr. 905-07. She subsequently developed back pain and in 2016 she 28 underwent a lumbar fusion. Tr. 1190-91, 1238-40. Over the years she periodically 1 had injections in both elbows for epicondylitis. Tr. 1232, 1673, 1677, 1818, 2105. 2 Over the course of the relevant period, she was also treated for depression, anxiety, 3 diabetes, and various other acute issues. 4 STANDARD OF REVIEW 5 The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 8 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 9 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 10 only if it is not supported by substantial evidence or if it is based on legal error. 11 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 12 defined as being more than a mere scintilla, but less than a preponderance. Id. at 13 1098. Put another way, substantial evidence is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion. Richardson v. 15 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 16 rational interpretation, the Court may not substitute its judgment for that of the 17 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 18 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 19 administrative findings, or if conflicting evidence supports a finding of either 20 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 21 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 22 supported by substantial evidence will be set aside if the proper legal standards 23 were not applied in weighing the evidence and making the decision. Brawner v. 24 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 25 SEQUENTIAL EVALUATION PROCESS 26 The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 28 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 1 four, the claimant has the burden of establishing a prima facie case of entitlement 2 to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 3 claimant establishes that a physical or mental impairment prevents the claimant 4 from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 5 If a claimant cannot perform past relevant work, the ALJ proceeds to step five, and 6 the burden shifts to the Commissioner to show (1) the claimant can make an 7 adjustment to other work; and (2) the claimant can perform specific jobs that exist 8 in the national economy. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 9 1190, 1193-1194 (2004). If a claimant cannot make an adjustment to other work in 10 the national economy, the claimant will be found disabled. 20 C.F.R. §§ 11 404.1520(a)(4)(v), 416.920(a)(4)(v). 12 ADMINISTRATIVE FINDINGS 13 On February 5, 2020, the ALJ issued a decision finding Plaintiff was not 14 disabled as defined in the Social Security Act. 15 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 16 activity since the alleged onset date. Tr. 1268. 17 At step two, the ALJ determined Plaintiff had the following severe 18 impairments: spinal impairment, left shoulder impairments, bilateral elbow 19 impairment/epicondylitis, affective disorder(s), and anxiety disorder(s). Id. 20 At step three, the ALJ found Plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled the severity of one of 22 the listed impairments. Tr. 1270-71. 23 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 24 she could perform light exertion level work with the following limitations:
25 She can lift or carry up to 20 pounds occasionally and up to 10 pounds 26 frequently, stand or walk for approximately 6 hours and sit for 27 approximately 6 hours per 8 hour work day with normal breaks. She can occasionally climb ramps or stairs; never climb ladders, ropes, or 28 scaffolds. She can frequently balance, stoop, kneel, crouch, and only 1 occasionally crawl. She can engage in frequent handling and fingering 2 bilaterally. She can frequently reach overhead with left upper 3 extremity. She should avoid concentrated exposure to excessive vibration and workplace hazards such as working with dangerous 4 machinery and working at unprotected heights. She can perform 5 simple routine tasks, in a routine work environment. She can make simple work related decisions with normal breaks. She can have 6 superficial interaction with coworkers, with no teamwork or 7 supervising other employees required as part of the job. She can have superficial contact with the public. 8
9 Tr. 1271. 10 At step four, the ALJ found Plaintiff was unable to perform her past relevant 11 work as a home attendant and resident care aide. Tr. 1288-89. 12 At step five the ALJ found, considering Plaintiff’s age, education, work 13 experience, and residual functional capacity, there were jobs that existed in 14 significant numbers in the national economy that Plaintiff could perform, 15 specifically identifying the representative occupations of cleaner housekeeping, 16 production line assembler, and inspector/hand packager. Tr. 1289-90. 17 The ALJ thus concluded Plaintiff was not under a disability within the 18 meaning of the Social Security Act at any time from the alleged onset date through 19 the date of the decision. Tr. 1290. 20 ISSUES 21 The question presented is whether substantial evidence supports the ALJ’s 22 decision denying benefits and, if so, whether that decision is based on proper legal 23 standards. 24 Plaintiff contends the ALJ erred by (1) improperly assessing the severe 25 impairments at step two; (2) not properly assessing Plaintiff’s subjective 26 testimony; and (3) not properly assessing the medical opinion evidence. 27 /// 28 1 DISCUSSION 2 1. Plaintiff’s subjective statements 3 Plaintiff contends the ALJ erred by improperly rejecting her subjective 4 statements. ECF No. 20 at 5-15. 5 It is the province of the ALJ to make determinations regarding a claimant’s 6 subjective reports. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 7 However, the ALJ’s findings must be supported by specific, cogent reasons. 8 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 9 produces medical evidence of an underlying medical impairment, the ALJ may not 10 discredit testimony as to the severity of an impairment merely because it is 11 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 12 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 13 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 14 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 15 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 16 what testimony is not credible and what evidence undermines the claimant’s 17 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 18 1993). 19 The ALJ concluded Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause some of the alleged symptoms; however, 21 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 22 those symptoms were not entirely consistent with the medical evidence and other 23 evidence in the record. Tr. 1273. The ALJ found the medical evidence of record 24 did not substantiate Plaintiff’s allegations regarding her physical or mental 25 limitations. Tr. 1273-80. The ALJ further found Plaintiff’s work history (including 26 vocational training and job search), receipt of unemployment benefits, and 27 activities contradicted her allegations. Tr. 1280-82. 28 /// 1 Plaintiff asserts the ALJ erred in discounting her reports, arguing the ALJ 2 omitted supportive objective findings from her summary, failed to explicitly 3 identify alleged inconsistencies, and ignored the context of comments regarding 4 improvement and various activities. ECF No. 20 at 5-15. Defendant argues the ALJ 5 reasonably considered the support from the medical record and evidence of 6 improvement with treatment, arguing Plaintiff is simply offering an alternative 7 interpretation of the evidence. ECF No. 31 at 8-11. 8 The Court finds the ALJ did not offer clear and convincing reasons for 9 discounting Plaintiff’s subjective reports. 10 a. Activities 11 The ALJ found Plaintiff’s exercise and social activities, including walking, 12 visiting friends, and attending sporting events and church, did not support and 13 plainly contradicted Plaintiff’s allegations that her physical and mental functioning 14 was extremely limited. Tr. 1281. 15 A claimant’s daily activities may support an adverse credibility finding if the 16 claimant’s activities contradict her other testimony. Orn v. Astrue, 495 F.3d 625, 17 639 (9th Cir. 2007). However, the ALJ failed to identify any actual inconsistency 18 between these minimal and sporadic activities and Plaintiff’s allegations. The 19 record reflects Plaintiff would occasionally take short walks for exercise, but that 20 she sometimes was unable to do so because of pain or lack of motivation due to her 21 mental health. Tr. 1681, 1733, 1749, 1750, 1758, 1760, 1771, 1782, 1810, 1853, 22 2084, 2085, 2113. There is nothing inconsistent about this activity. Similarly, 23 Plaintiff never claimed to be completely unable to engage in social activities or 24 leave her home. Tr. 1272-73. Therefore, her ability to occasionally visit with 25 friends and family and attend church does not demonstrate any inconsistency with 26 her allegations or testimony at the hearing. The ALJ failed to indicate what 27 testimony she found to be contradicted by these activities. 28 /// 1 Therefore, this was not a clear and convincing reason to discount Plaintiff’s 2 allegations. 3 b. Work activity and unemployment benefits 4 The ALJ found Plaintiff’s allegations to be contradicted by her employment 5 activities, including working jobs that did not end due to her impairments and her 6 job searching activities during the relevant period. Tr. 1280-81. The ALJ further 7 found her vocational retraining and receipt of unemployment benefits indicated she 8 was capable of some work. Id. 9 The Court finds this discussion does not constitute clear and convincing 10 reasons for discounting Plaintiff’s allegations, at least not for the entire relevant 11 period. An ALJ may consider past work, the reasons for leaving employment, or 12 evidence that a claimant’s condition has not prevented them from working in the 13 past and has remained constant for a number of years. See e.g., Bruton v. 14 Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ properly relied on the fact that 15 claimant left his job because he was laid off, rather than because he was injured, in 16 finding the claimant’s statement unreliable); Trevizo v. Berryhill, 871 F.3d 664, 17 681 (9th Cir. 2017); Gregory v. Bowen, 844 F.2d 664, 666-67 (9th Cir. 1988). 18 However, all of the activities cited by the ALJ occurred in 2014 or 2015, while the 19 record indicates Plaintiff’s back pain and elbow conditions developed after or 20 simultaneously with the activities the ALJ identified. Tr. 584 (2/2013, developing 21 shoulder and back pain with increased keyboarding from vocational retraining, 22 needs ergonomic accommodations); 1044 (5/2014, begins reporting back pain that 23 radiates into left leg); 1097 (11/2014, begins pain management for back pain); 24 1087 (3/2015, increased back pain with new job); 1239-40 (11/2015, consult with 25 orthopedic surgeon for back pain); 1121 (1/2016, begins reporting elbow pain); 26 1231-32 (6/2016, injections for elbow pain); 1190-91 (9/2016, lumbar fusion 27 surgery). While the ALJ’s discussion of Plaintiff’s vocational activities may be a 28 reason to discount her allegations of disability back to 2011, the ALJ failed to 1 explain how these factors detracted from Plaintiff’s testimony regarding the 2 worsening of her physical condition over the following years. 3 With respect to Plaintiff’s ongoing job search activities, the ALJ’s 4 implication that Plaintiff’s job search stagnated due to lack of transportation omits 5 the remainder of the treatment note where Plaintiff indicated she did not think she 6 could work due to pain and mental health conditions, even if she had gotten calls 7 back from her applications. Tr. 1734. The fact that Plaintiff was attempting to find 8 some work does not indicate she was actually capable of performing the jobs she 9 was applying for and does not undermine her allegations of significant limitations. 10 c. Objective evidence 11 An ALJ may cite inconsistencies between a claimant’s testimony and the 12 objective medical evidence in discounting the claimant’s symptom statements. 13 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). But this 14 cannot be the only reason provided by the ALJ. See Lester, 81 F.3d at 834 (the ALJ 15 may not discredit the claimant’s testimony as to subjective symptoms merely 16 because they are unsupported by objective evidence). “[A]n ALJ does not provide 17 specific, clear, and convincing reasons for rejecting a claimant’s testimony by 18 simply reciting the medical evidence in support of his or her residual functional 19 capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 20 2015). 21 The ALJ engaged in an extensive discussion of the objective medical 22 evidence regarding Plaintiff’s physical and mental conditions, finding the evidence 23 did not support that her conditions were as seriously restricting as alleged. Tr. 24 1273-80. However, because none of the ALJ’s other reasons reach the clear and 25 convincing level, the ALJ’s summary of Plaintiff’s treatment over the years does 26 not on its own constitute a clear and convincing basis to discount her allegations of 27 disabling pain and other symptoms. 28 /// 1 The Court further notes that the ALJ’s discussion fails to acknowledge the 2 changing circumstances of Plaintiff’s medical conditions. For example, the ALJ 3 discounts Plaintiff’s allegations regarding back pain because she improved 4 following her lumbar surgery in 2016. Tr. 1274. However, this fails to take into 5 consideration the greater than two years of back pain Plaintiff reported prior to 6 receiving the surgery, the months of recovery following the surgery, and the 7 residual pain and limitations she had, despite improving. Tr. 1037-44 (early reports 8 of back pain in 2014); 1239-40 (orthopedic consultations in 2015); 1190-91 9 (surgery in 2016); 1879-1903 (physical therapy for back, slow progress, using a 10 walker); 1668-70 (one year post-surgery still has pain, but overall satisfied with 11 results). By issuing one RFC covering the entire relevant period, the ALJ failed to 12 account for the changing circumstances of Plaintiff’s physical condition. Similarly, 13 as discussed further below, Plaintiff’s mental health issues evolved over the years, 14 with treatment beginning in earnest in 2016 (Tr. 1225), yet the ALJ discounted 15 Plaintiff’s mental health reports due to lack of evidence in the earlier years. On 16 remand, the treatment records must be viewed in light of the overall context and 17 diagnostic record. See Holohan v. Massanari, 246 F.3d 1195, 1205, 1208 (9th Cir. 18 2001).; Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008). 19 2. Medical Opinion Evidence 20 Plaintiff asserts the ALJ improperly evaluated the medical opinion evidence, 21 including opinions regarding Plaintiff’s physical functioning from Dr. Liu, Ms. 22 Hahn, Ms. Franck, Dr. Drenguis, and Dr. Saue, and opinions on Plaintiff’s mental 23 functioning from Drs. Beachy, Sawyer, Bowes, Petaja, Sanchez, and Ford. 24 When a treating or examining physician’s opinion is contradicted by another 25 physician, the ALJ may reject the treating physician’s opinion for “specific and 26 legitimate reasons” based on substantial evidence. Andrews v. Shalala, 53 F.3d 27 1035, 1041 (9th Cir. 1995); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 28 The specific and legitimate standard can be met by the ALJ setting out a detailed 1 and thorough summary of the facts and conflicting clinical evidence, stating their 2 interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 3 751 (9th Cir. 1989). The ALJ is required to do more than offer their conclusions, 4 they “must set forth [their] interpretations and explain why they, rather than the 5 doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 6 The Commissioner may reject the opinion of a non-examining physician by 7 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 8 1240, 1244 (9th Cir. 1998). 9 a. Dr. Liu, Ms. Hahn, Ms. Franck 10 In 2011 and 2012, following left shoulder surgery, Plaintiff was seen by 11 multiple treating providers in connection with her claim through the Department of 12 Labor and Industries, with the providers completing Activity Prescription Forms 13 limiting her ability to work, or otherwise commenting on her work restrictions 14 while recovering from surgery. Tr. 545, 562, 574, 577, 586-92, 653, 659, 899, 988, 15 990, 1005-09, 1161. 16 The ALJ adopted the findings and analysis from her prior decision regarding 17 these opinions, and assigned them little weight, noting they were temporary and 18 that a November 2015 exam showed generally normal range of motion and 19 functionality. Tr. 27, 1283. She further generally found the limitations were not 20 supported by the objective evidence and conflicted with Plaintiff’s activities, 21 noting that when extreme limitations are not supported, “it indicates that the author 22 has either inaccurate information regarding symptoms, limitations, activities and 23 abilities, does not fully understand the functional activities being rated, or is 24 serving as an advocate.” Tr. 27. 25 Plaintiff argues the ALJ violated the rule of mandate by failing to reevaluate 26 the opinion evidence, and argues that the ALJ’s analysis is too general, 27 unsupported by any citations, and inconsistent with the record showing objective 28 limitations on Plaintiff’s use of her shoulder. ECF No. 20 at 16-19. Defendant 1 argues the ALJ did not err in adopting her prior analysis, as the remand order only 2 specifically directed reconsideration of Dr. Sawyer’s opinion, and asserts that the 3 ALJ offered sufficient reasons for discounting the temporary opinions and 4 reasonably interpreted the record in finding the opinions unsupported by the record 5 and Plaintiff’s activities. ECF No. 31 at 12-14. 6 The Court finds the ALJ did not violate the rule of mandate, as the remand 7 order only directed specific reconsideration of Dr. Sawyer’s opinion. Tr. 1401-02, 8 1413-14. The ALJ adopted her prior findings in light of her further review of the 9 medical record. Tr. 1283. 10 However, the Court finds the ALJ failed to offer sufficient reasons for 11 disregarding the opined limitations. Though each individual form assessed 12 temporary restrictions in light of Plaintiff’s ongoing recovery from surgery, when 13 read together the opinions cover a period from Plaintiff’s surgery in January 2011 14 through April 2012. Tr. 899, 1009. Dr. Liu asserted Plaintiff’s limitations as of 15 early 2012 were permanent. Tr. 659, 1009. The Commissioner’s assertion that 16 these opinions were temporary and thus not indicative of whether Plaintiff was 17 disabled is not supported. 18 Furthermore, the Court finds the ALJ’s discussion of the lack of support 19 from the objective evidence to be unavailing. The only citation the ALJ provided 20 was from a physical exam of Plaintiff’s lumbar spine in November 2015. Tr. 1238. 21 This has no bearing on whether limitations relating to Plaintiff’s shoulder in 2011 22 and 2012 were accurate and supported. The record reflects tenderness, somewhat 23 decreased strength, and some limits on range of motion in the shoulder and upper 24 back throughout the period covered by Liu, Hanh, and Franck’s opinions. Tr. 542- 25 43, 548, 565-68, 963, 975, 980, 984. If a treating provider’s opinions are based “to 26 a large extent” on an applicant’s self-reports and not on clinical evidence, and the 27 ALJ finds the applicant not credible, the ALJ may discount the treating provider’s 28 opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008); see also 1 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). However, when an 2 opinion is not more heavily based on a patient’s self-reports than on clinical 3 observations, there is no evidentiary basis for rejecting the opinion. See Ryan v. 4 Comm’r of Soc. Sec, 528 F.3d 1194, 1199-1200 (9th Cir. 2008). The ALJ did not 5 identify any evidence in support of her conclusion that the providers unduly relied 6 on Plaintiff’s assertions or were acting as advocates. Additionally, as discussed 7 above, the ALJ failed to offer legally sufficient reasons for discounting Plaintiff’s 8 subjective complaints. 9 Finally, the ALJ failed to specify what activities during this period she found 10 to be inconsistent with the opinions. On remand, the ALJ shall reconsider the 11 opinions from these sources regarding Plaintiff’s shoulder limitations. 12 b. Dr. Drenguis 13 Plaintiff attended a consultative physical exam with Dr. William Drenguis in 14 December 2018. Tr. 1809-15. Dr. Drenguis opined Plaintiff was limited to lifting 15 and carrying 20 pounds occasionally and 10 pounds frequently, could sit for about 16 six hours, and could stand and walk at least two hours. He assessed additional 17 postural, manipulative, and environmental limitations. Tr. 1814-15. The ALJ found 18 this opinion generally persuasive, other than the limitation on standing and walking 19 and the environmental restrictions, which she found to be inconsistent with the 20 exam and unsupported by the longitudinal record showing normal gait and lower 21 extremity functioning. Tr. 1284-85. 22 Plaintiff argues the ALJ erred in finding the opinion unsupported by the 23 doctor’s own exam and the record as a whole, as there is consistent objective 24 evidence relating to Plaintiff’s spine limitations. ECF No. 20 at 21. Defendant 25 argues the ALJ’s interpretation of the record was reasonable and the court should 26 defer to the ALJ rather than Plaintiff’s alternative interpretation of the file. ECF 27 No. 31 at 15-16. 28 /// 1 The Court finds the ALJ erred. Dr. Drenguis stated that Plaintiff was limited 2 in standing and walking due to the degenerative changes in her lumbar spine and 3 her chronic cervical sprains. Tr. 1814. His exam noted objective findings for these 4 conditions, including only being able to perform half of a squat, tenderness to the 5 cervical and lumbar spine, and less than normal range of motion in her neck, back, 6 and shoulders. Tr. 1812-13. The ALJ did not mention these abnormal findings and 7 summarized only the normal findings from the exam. Therefore, her conclusion 8 that the opinion was inconsistent with the exam is not supported. 9 In terms of the record as a whole, the Court finds the ALJ’s string-cite of 10 “normal gait and lower extremity functioning” is insufficient to serve as a basis for 11 disregarding Dr. Drenguis’ opinion. Most notably, the vast majority of the ALJ’s 12 citations are to visits that did not revolve around her back problems. See, e.g., Tr. 13 1697-1720, 1861-65, 2119 (urology records); 1677, 1820, 1908, 1932, 1935, 1941, 14 2180 (treatment for epicondylitis); 1752, 1762, 1774, 1781, 2111, 2140-58 15 (treatment for diabetes, constipation, depression). Even when the citations do 16 include indications of normal gait and lower extremity functioning, it is not clear to 17 the court that this undermines Dr. Drenguis’ findings, as the limitations on 18 Plaintiff’s abilities stem from her spinal impairment, which is well-documented 19 through imaging and her spinal fusion in 2016. 20 Therefore, the Court finds the ALJ did not offer specific and legitimate 21 reasons for discounting Dr. Drenguis’ opinion regarding Plaintiff’s ability to stand 22 and walk. 23 c. Drs. Bowes, Petaja, and Sanchez 24 Plaintiff attended a consultative psychological exam with Dr. Tasmyn 25 Bowes in April 2018. Tr. 1680-91. Dr. Bowes assessed persistent depressive 26 disorder, chronic major depression, and rule out generalized anxiety disorder. Tr. 27 1682. She opined Plaintiff had no more than moderate limitations in most work- 28 related functional areas, but was markedly impaired in her ability to understand, 1 remember, and persist in tasks by following detailed instructions. Tr. 1683. This 2 opinion was reviewed by Dr. Phyllis Sanchez, who agreed with the diagnoses and 3 limitations. Tr. 1692. 4 Plaintiff attended a second exam with Dr. Bowes in October 2018. Tr. 1784- 5 91. She updated the diagnoses and opined Plaintiff was now severely limited in her 6 ability to perform activities within a schedule, maintain regular attendance, and be 7 punctual within customary tolerances, and was markedly impaired in 8 communicating and performing effectively in a work setting and completing a 9 normal work week without interruptions from psychologically based symptoms. 10 Tr. 1787. This report was reviewed by Dr. Holly Petaja, who concurred with the 11 severity and functional limits assessed. Tr. 1824. 12 The ALJ addressed these four opinions concurrently, finding the mild and 13 moderate limitations were generally consistent with the record, but finding the 14 remainder to be unpersuasive, as Dr. Bowes offered no basis for the marked 15 deterioration in Plaintiff’s condition between the two exams, and finding the 16 opinions were inconsistent with the generally unremarkable mental status exams 17 conducted by Dr. Bowes and the longitudinal record demonstrating intact mental 18 functioning. Tr. 1285-86. The ALJ further noted Dr. Bowes did not review any of 19 Plaintiff’s medical records, all of which suggested the opinions were primarily 20 based on Plaintiff’s self-reports. Id. 21 Plaintiff argues the ALJ erred, as Dr. Bowes’ exams did include supportive 22 findings in the mental status exams, and asserts that the ALJ did not properly 23 assess the longitudinal mental health objective evidence. ECF No. 20 at 24-25. 24 Defendant argues the ALJ reasonably discounted all of the psychological opinions 25 as inconsistent with the overall record, noting Plaintiff simply offers a different 26 interpretation. ECF No. 31 at 16-17. 27 The Court finds the ALJ erred. As an initial matter, Dr. Bowes’ mental 28 status exams were not “generally unremarkable.” At the first exam, Plaintiff’s 1 performance on concentration testing supported marked deficits in her cognitive 2 functioning, and she displayed dysphoric mood, blunted affect, and low energy. Tr. 3 1681-84. Her mental status exam was not within normal limits with respect to fund 4 of knowledge, abstract thought, insight, and judgment. Tr. 1685. On the second 5 exam Dr. Bowes noted Plaintiff to be irritable and resentful and exhibiting 6 paranoia and reporting auditory hallucinations, and that her concentration was not 7 within normal limits based on the results of the Trail Making test. Tr. 1788-89. 8 These are not generally unremarkable findings. Furthermore, the ALJ failed to 9 recognize that Dr. Petaja and Dr. Sanchez both opined that Dr. Bowes’ reports 10 were supported by the available objective medical evidence. Tr. 1692, 1824. An 11 ALJ may not substitute her own interpretation of the raw data of a medical exam. 12 Regarding the ALJ’s finding that the record as a whole did not support the 13 opinions because it indicated Plaintiff maintained intact mental functioning, the 14 Court finds the ALJ’s analysis to be insufficient. As with the discussion above 15 regarding Dr. Drenguis, the ALJ’s string-cite of records supposedly demonstrating 16 intact mental functioning largely includes records that do not pertain to Plaintiff’s 17 mental health treatment, and contain few if any mental findings, frequently noting 18 only that she was alert and oriented. See, e.g., Tr. 1697-1722, 1861-65, (urology 19 records); 1069, 1122, 1126, 1130, 1740, 1745, 1765, 1837, 1845, 2124, 2174, 20 2186, 2200, 2216, 2285, 2291-93 (treatment for diabetes, elbow pain, and various 21 other acute physical problems). A number of the records cited pre-date Dr. Bowes’ 22 exams by many years. Tr. 594, 603, 1018, 1042, 1069, 2016, 2068. None of the 23 cited records include formal mental status exams such as those administered by Dr. 24 Bowes, other than the ones done by Dr. Ford and Dr. Sawyer, both of whom the 25 ALJ also found to be unpersuasive. Tr. 1282-83, 1286-87. Therefore, substantial 26 evidence does not support the ALJ’s assessment that these records show intact 27 mental functioning. Moreover, the record as a whole does include objective 28 findings of Plaintiff’s mental impairments, such as depressed and anxious mood 1 and affect, rumination, irritation, anger, fleeting suicidal ideation, poor 2 concentration, lethargy, and tearfulness. Tr. 1208, 1211, 1219, 1222, 1225, 1733, 3 1744, 1747-49, 1753-55, 1759, 1767, 1770-73, 1778, 1782, 1832-34, 1840, 1843, 4 1848, 1853-54, 2084-86, 2091-95, 2102-04, 2110-15, 2151, 2170, 2289-90. 5 Thus, the Court finds that the ALJ’s rationale is not supported by substantial 6 evidence. 7 d. Remaining medical source opinions 8 Plaintiff assigns error to several other treating and examining source 9 opinions. The Court notes the ALJ used the same string-cite of records in rejecting 10 Dr. Beachy, Dr. Sawyer, and Dr. Ford’s opinions regarding Plaintiff’s mental 11 functioning. Given the ALJ’s errors in evaluating the medical evidence discussed 12 above, reassessment of the other medical opinions is also warranted. 13 3. Step two findings 14 Plaintiff argues the ALJ erred at step two by failing to find obesity and sleep 15 apnea1 to be severe impairments. ECF No. 20 at 3-5. 16 At step two of the sequential evaluation process, the ALJ must determine 17 whether the claimant has any medically determinable severe impairments. 20 18 C.F.R. §§ 404.1520(a)(ii), 416.920(a)(ii). An impairment is “not severe” if it does 19 not “significantly limit” the ability to conduct “basic work activities.” 20 C.F.R. §§ 20 404.1522(a), 416.922(a). Basic work activities are “abilities and aptitudes 21 necessary to do most jobs.” 20 C.F.R. §§ 404.1522(b), 416.922(b). “An 22
23 1 Plaintiff briefly asserts that the ALJ erred in failing to consider listing 24 3.02(c)(3) regarding Plaintiff’s SpO pulse oximetry levels. ECF No. 20 at 5. 2 25 However, the listing requires numerous other findings that Plaintiff does not 26 address in her briefing. See 20 C.F.R Part 404, Subpart P, Appendix 1, Sec. 27 3.02(c)(3). Plaintiff has not made any argument that her condition satisfies the full 28 criteria of this listing. 1 impairment or combination of impairments can be found not severe only if the 2 evidence establishes a slight abnormality that has no more than a minimal effect on 3 an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 4 1996) (internal quotation marks omitted). The step-two analysis is “a de minimis 5 screening device used to dispose of groundless claims.” Webb v. Barnhart, 433 6 F.3d 683, 687 (9th Cir. 2005). 7 The ALJ found Plaintiff was treated for a number of conditions that did not 8 cause any significant functional limitations or did not last for a continuous period 9 of 12 months, including obesity and sleep apnea. Tr. 1268-69. Because this claim 10 is being remanded for reconsideration of Plaintiff’s subjective statements and the 11 medical opinion evidence, the ALJ will reconsider which of Plaintiff’s 12 impairments are severe, including considering any additional evidence that may be 13 submitted on remand. 14 CONCLUSION 15 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 16 payment of benefits. The Court has the discretion to remand the case for additional 17 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 18 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 19 further administrative proceedings would serve no useful purpose. Id. Remand is 20 appropriate when additional administrative proceedings could remedy defects. 21 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 22 finds that further development is necessary for a proper determination to be made. 23 The ALJ’s RFC determination is not supported by substantial evidence in 24 this case and must be reevaluated. On remand, the ALJ shall reevaluate the medical 25 evidence and Plaintiff’s subjective complaints, and take into consideration any 26 other evidence or testimony relevant to Plaintiff’s disability claim in completing 27 the five-step analysis. 28 /// 1 Accordingly, IT IS ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 20, is 3|| GRANTED IN PART. 4 2. Defendant’s Motion for Summary Judgment, ECF No. 31, is 5|| DENIED. 6 3. The matter is REMANDED to the Commissioner for additional 7|| proceedings consistent with this Order. 8 4. An application for attorney fees may be filed by separate motion. 9 The District Court Executive is directed to file this Order and provide a copy 10]| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 11 || the file shall be CLOSED. 12 IT IS SO ORDERED. 13 DATED April 19, 2021. 14 Em, JW JOHN T. RODGERS 16 — UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28