Taylor v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 24, 2023
• Docket: 2:22-cv-01360
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 HENRY T., 8 Plaintiff, CASE NO. C22-1360-BAT 9 v. ORDER REVERSING AND REMANDING FOR FURTHER 10 COMMISSIONER OF SOCIAL SECURITY, ADMINISTRATIVE PROCEDURES 11 Defendant. 12 13 Plaintiff Henry T. seeks review of the denial of his applications for Supplemental 14 Security Income and Disability Insurance Benefits. He contends the ALJ erred by failing to fully 15 account for a medical opinion the ALJ found to be persuasive and by failing to properly consider 16 other medical opinions; he seeks remand for an immediate award of benefits or, in the 17 alternative, for further administrative proceedings. Dkt. 10. The Court REVERSES the 18 Commissioner’s final decision and REMANDS the matter for further administrative proceedings 19 under sentence four of 42 U.S.C. § 405(g). 20 BACKGROUND 21 Plaintiff is currently 45 years old, has at least a high school education, and has no past 22 relevant work. Tr. 79. In September 2019, he applied for benefits, alleging disability as of July 1, 23 2019. Tr. 238, 240. After his applications were denied initially and on reconsideration, the ALJ 1 conducted a hearing and, on December 10, 2020, issued a decision finding plaintiff not disabled. 2 Tr. 69-80. The Appeals Council denied plaintiff’s request for review, making the ALJ’s decision 3 the Commissioner’s final decision. Tr. 1. 4 THE ALJ’S DECISION

5 Utilizing the five-step disability evaluation process,1 the ALJ found that plaintiff had not 6 engaged in substantial gainful activity since the alleged onset date; he had the medically 7 determinable severe impairments of major depressive disorder and generalized anxiety disorder; 8 and these impairments did not meet or equal the requirements of a listed impairment. Tr. 72-73. 9 The ALJ found that plaintiff had the residual functional capacity to perform a full range of work 10 at all exertional levels with the following nonexertional limitations: he can understand, 11 remember, and carry out simple, routine instructions with only occasional changes in the work 12 setting. Tr. 74. The ALJ found plaintiff had no past relevant work but as there are jobs that exist 13 in significant numbers in the national economy that he can perform, he is not disabled. Tr. 79. 14 DISCUSSION

15 The Court will reverse the ALJ’s decision only if it was not supported by substantial 16 evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. 17 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ’s decision may not be reversed on account 18 of an error that is harmless. Id. at 1111. The Court may neither reweigh the evidence nor 19 substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 20 (9th Cir. 2002). Where the evidence is susceptible to more than one rational interpretation, the 21 Court must uphold the Commissioner’s interpretation. Id. 22 23

1 20 C.F.R. §§ 404.1520, 416.920. 1 A. Medical Opinions 2 When considering medical opinions (for applications filed on or after March 27, 2017), 3 the ALJ considers the persuasiveness of the medical opinion using five factors (supportability, 4 consistency, relationship with claimant, specialization, and other), but supportability and

5 consistency are the two most important factors. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2), 6 (c) (2017). The ALJ must explain in her decision how she considered the factors of 7 supportability and consistency. 20 C.F.R. §§ 404.1520c(b), 416.920c(b) (2017). The ALJ is not 8 required to explain how she considered the other factors, unless the ALJ finds that two or more 9 medical opinions or prior administrative medical findings about the same issue are both equally 10 well-supported and consistent with the record, but not identical. 20 C.F.R. §§ 404.1520c(b)(3), 11 416.920c(b)(3) (2017). The new regulations supplant the hierarchy governing the weight an ALJ 12 must give medical opinions and the requirement the ALJ provide specific and legitimate reasons 13 to reject a treating doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). An 14 ALJ cannot reject a doctor’s opinion as unsupported or inconsistent without providing an

15 explanation supported by substantial evidence. Id. 16 1. Dr. Postovoit 17 State agency consulting psychologist Leslie Postovoit, Ph.D., reviewed the record in 18 October 2019 and opined plaintiff was capable of performing simple, routine tasks and that 19 plaintiff “will not be able to set goals for himself and must have work tasks that are clear.” Tr. 20 115-16. In January 2020, consulting psychologist Bruce Eather, Ph.D., again reviewed the record 21 and generally concurred with Dr. Postovoit but opined that plaintiff could perform two-step 22 commands. Tr. 133-34. 23 1 The ALJ found both these opinions persuasive because they were well-supported and 2 mostly consistent with each other. Tr. 77. The ALJ noted, however, that the Ninth Circuit has 3 held that there is a discrepancy between two-step tasks and simple, routine tasks. Id. The ALJ 4 found a limitation to simple, routine tasks was more aligned with the medical evidence given

5 plaintiff’s relatively benign presentation to treating providers, performance in mental status 6 examination, situational component, and statements of the intensity and persistence of plaintiff’s 7 symptoms. Id. 8 Plaintiff argues the ALJ failed to fully account for Dr. Postovoit’s opinion despite finding 9 it persuasive because the ALJ did not explain how he accounted for her opinion that plaintiff 10 could not set goals for himself and must have clear work tasks. Dkt. 10 at 2-3. The 11 Commissioner responds the ALJ translated Dr. Posotvoit’s findings into an RFC that adequately 12 captured any deficiencies in plaintiff’s ability to set goals for himself and his corresponding need 13 for clear work tasks. Dkt. 12 at 2. 14 The Commissioner relies on two cases in support of her argument. First, she points to

15 Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). In that case, Dr. McCollum, an 16 examining doctor, opined the plaintiff had a “slow pace, both with thinking and her actions” and 17 she was moderately limited in her ability to perform at consistent pace without an unreasonable 18 number and length of rest periods, but he did not opine as to the plaintiff’s ability to perform 19 unskilled work. Id. at 1173. Dr. Eather reviewed the record and identified “a slow pace, both in 20 thinking and actions,” and other moderate limitations, and concluded that the plaintiff retained 21 the ability to carry out simple tasks. Id. The ALJ found the plaintiff had the RFC to perform 22 “simple, routine, repetitive” work. Id. The Ninth Circuit held the ALJ did not reject Dr. 23 1 McCollum’s opinion but rather translated plaintiff’s pace and mental limitations into the only 2 concrete restrictions available to him, Dr. Eather’s limitation to simple tasks. Id. at 1174. 3 In that case, the ALJ relied on Dr. Eather’s opinion to formulate concrete restrictions that 4 incorporated the restrictions opined by both Dr. Eather and Dr. McCollum. Here, by contrast, the

5 ALJ did not rely on another source to address Dr. Postovoit’s opinion about plaintiff’s inability 6 to set goals and need for clear work tasks. There is nothing in the decision to indicate the ALJ 7 translated Dr. Postovoit’s opinion on plaintiff’s inability to set goals and need for clear work 8 tasks into a limitation to simple work. This reasoning was not in the ALJ’s decision, and the 9 Court may not rely on it as a post-hoc rationalization to affirm the ALJ. Pinto v. Massanari, 249 10 F.3d 840, 847-48 (9th Cir. 2001). 11 Second, the Commissioner points to Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 12 (9th Cir. 2015). In that case, Dr. McKenna’s opinion included a section titled “Treatment 13 Recommendations,” as well as a separate section titled “Clinical Formulation/Prognosis” that 14 contained her formal conclusions. Id. at 1005-06. The court held the ALJ did not err by failing to

15 incorporate some of the limitations included in the “Treatment Recommendations” section, as an 16 ALJ may rely on “specific imperatives regarding a claimant’s limitations, rather than 17 recommendations.” Id. at 1006 (citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 18 1165 (9th Cir. 2008)). 19 Here, there is no indication in Dr. Postovoit’s opinion that she merely recommended the 20 need for clear work tasks. Indeed, her language was clear: plaintiff “will not” be able to set goals 21 for himself and “must” have work tasks that are clear. Tr. 116. The ALJ failed to incorporate 22 these limitations into the RFC and failed to give an explanation for doing so. This was error. 23 1 The Commissioner argues that any error in the ALJ’s assessment of Dr. Postovoit’s 2 opinion was harmless. Dkt. 4 at 3. An error is harmless where it is inconsequential to the ALJ’s 3 ultimate nondisability determination, Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012), or 4 if, despite the error, the agency’s path may reasonably be discerned, Treichler v. Comm’r of Soc.

5 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). But a reviewing court may not make 6 independent findings based on the evidence before the ALJ to conclude that the ALJ’s error was 7 harmless. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 8 The Commissioner argues the DOT descriptions of the jobs identified by the vocational 9 expert do not indicate that plaintiff would need to set goals or have less than clear work tasks. 10 Dkt. 12 at 3. She asserts these jobs are repetitive and have little variability and/or require 11 working under specific instructions. Id. at 4. 12 The Commissioner asks the Court to weigh in on vocational factors that the ALJ did not 13 present in a hypothetical to the vocational expert and that the vocational expert did not otherwise 14 address. To make a finding that these jobs do not require the ability to set goals and have work

15 tasks that are clear would require the Court to make independent vocational findings. This the 16 Court may not do. Brown-Hunter, 806 F.3d at 492. Because the error was not harmless, remand 17 is required for a reevaluation of Dr. Postovoit’s opinion and its effect on plaintiff’s RFC. 18 2. Dr. Widlan 19 David Widlan, Ph.D., examined plaintiff in July 2019 and opined plaintiff had marked 20 limitations in the ability to adapt to changes in a routine work setting, be aware of normal 21 hazards and take appropriate precautions, communicate and perform effectively in a work 22 setting, and maintain appropriate behavior in a work setting. Tr. 348-49. He opined that plaintiff 23 was severely limited in the ability to complete a normal workday and work week without 1 interruptions from psychologically based symptoms and that his overall level of impairment was 2 severe. Tr. 349. 3 The ALJ found this opinion was not persuasive. Tr. 78. The ALJ found it was not 4 supported because Dr. Widlan reviewed no records and had minimal narrative explanation for his

5 specific limitations. Id. The ALJ also found that while Dr. Widlan stated plaintiff cannot perform 6 serial 3 subtractions, he acknowledges that plaintiff performed 3 of 4 correctly. Id. And the ALJ 7 further found that the opinion was inconsistent with the relatively benign presentation to treating 8 providers, the situational component, and statements of the intensity and persistence of plaintiff’s 9 symptoms. Id. 10 Plaintiff argues the ALJ’s findings were not supported by substantial evidence and were 11 not a correct application of the law. Dkt. 10 at 4. With respect to supportability, plaintiff argues 12 that the ALJ’s reliance on the minimal narrative explanation conflicts with his assessment of the 13 non-examining psychologists’ opinions, which the ALJ found persuasive despite having little or 14 no explanation for the specific limitations they expressed; that the ALJ failed to acknowledge

15 most of the objective evidence Dr. Widlan cited, including the clinical interview, mental status 16 examination, and two tests to detect malingering, both of which indicated that plaintiff was not 17 feigning his symptoms; and that the ALJ improperly imposed his own interpretation of Dr. 18 Widlan’s testing results by focusing on the fact that plaintiff could perform three serial 3 19 subtractions before making an error, but not acknowledging that plaintiff erred on the fourth 20 subtraction and could not perform a single serial 7 subtraction. Dkt. 10 at 4-7. 21 As noted above, an ALJ must provide an explanation supported by substantial evidence 22 for finding a medical opinion unsupported or inconsistent. Woods, 32 F.4th at 792. In addition, 23 an ALJ may not substitute his own interpretation of the medical evidence for the opinion of a 1 medical professional. See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999). Here, Dr. 2 Widlan supported his opinion with his findings from his clinical examination, including the 3 objective assessments he administered. However, the ALJ substituted his own interpretation of 4 those findings—ignoring the objective assessments Dr. Widlan administered and making his own

5 findings about the import of plaintiff’s performance on serial subtractions—to find Dr. Widlan’s 6 opinion unsupported. The ALJ’s reliance on his own interpretation of the medical evidence to 7 reject the opinion as unsupported constituted error. 8 With respect to consistency, plaintiff notes the ALJ did not provide citations to the record 9 in assessing this factor, leaving plaintiff to assume the ALJ was referring to the findings he made 10 when assessing plaintiff’s subjective complaints. Dkt 10 at 6. Referring to those findings, 11 plaintiff argues the treatment notes the ALJ cited to as demonstrating a relatively benign 12 presentation were not in fact inconsistent with Dr. Widlan’s opinion and, in many cases, appear 13 to be auto-generated text that were contradicted by the narrative portions of those notes. Dkt. 10 14 7-8.

15 To the extent the ALJ relied on his findings made in assessing plaintiff’s testimony when 16 evaluating Dr. Widlan’s opinion, merely referring to a previous string citation of treatment notes 17 without explanation is insufficient. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) 18 (“To say that medical opinions are not supported by sufficient objective findings . . . does not 19 achieve the level of specificity our prior cases have required, even when the objective factors are 20 listed seriatim.”). And not all treatment notes the ALJ cited in assessing plaintiff’s testimony 21 were inconsistent with Dr. Widlan’s opinion. For example, the ALJ noted that treatment 22 providers documented plaintiff as being alert and oriented. Tr. 76. But Dr. Widlan found 23 plaintiff’s orientation to be within normal limits and, while he did not note whether plaintiff was 1 alert, he found plaintiff’s appearance, speech, and psychomotor behavior to be within normal 2 limits and did not note any difficulties completing the examination due to lack of alertness on 3 plaintiff’s part. Tr. 350. To merely note that providers described plaintiff as alert and oriented 4 does not establish any inconsistency with Dr. Widlan’s opinion.

5 Plaintiff also argues the ALJ’s reference to a situational component reflects an improper 6 understanding of impairments like depression and anxiety; that plaintiff’s statements that 7 medications worked well reflected only temporary improvement that quickly subsided; and that 8 the ALJ’s statement that Dr. Widlan’s opinion is inconsistent with “statements of the intensity 9 and persistence of the claimant’s symptoms” is unclear. Dkt. 10 at 8-10. The ALJ listed these 10 factors but failed to make any connections between them and the evidence. The lack of 11 explanation leaves the Court guessing as to the reasons behind the ALJ’s finding. This failure to 12 provide an explanation supported by substantial evidence for rejecting Dr. Widlan’s opinion was 13 error. Woods, 32 F.4th at 792. 14 The ALJ failed to give a valid reason supported by substantial evidence for finding Dr.

15 Widlan’ opinion unpersuasive and must reevaluate it on remand. 16 3. Dr. Ross 17 Amy Ross, Psy.D., a treating psychologist, opined in September 2020 that plaintiff 18 exhibited significant limitations in his ability to engage in fundamental activities of daily living 19 as well as social and emotional cognitive functioning. Tr. 663. She opined that plaintiff was not 20 capable of sustaining work-like activities on a consistent basis; that his mental health and 21 medical disabilities diminish his concentration and focus and often impede his ability to perform 22 basis tasks; and that he would frequently be absent from the workplace due to his depression, 23 anxiety, and emotional dysregulation. Id. 1 The ALJ found this opinion to be not persuasive because it was not adequately supported 2 by the narrative or treatment notes, finding that treatment notes were consistent with relatively 3 benign presentation to treating providers, performance in mental status examination, situational 4 component, and statements of the intensity and persistence of plaintiff’s symptoms. Tr. 77.

5 Plaintiff argues this analysis, which was identical to the ALJ’s analysis of Dr. Widlan’s 6 opinion, fails for the same reasons. Dkt. 13 at 12. The Court agrees. The ALJ failed to provide an 7 explanation supported by substantial evidence for rejecting this opinion and must reevaluate it on 8 remand. 9 B. Remand for further administrative proceedings 10 Plaintiff asks the Court to remand this case with instructions for an immediate award of 11 benefits. Dkt. 12 at 12. The Court may remand for an award of benefits where (1) the record has 12 been fully developed and further administrative proceedings would serve no useful purpose, (2) 13 the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant 14 testimony or medical opinion, and (3) if the improperly discredited evidence were credited as

15 true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 16 F.3d 995, 1020 (9th Cir. 2014). Courts have flexibility in applying this rule and may instead 17 remand for further proceedings where the record as a whole “creates serious doubt that a 18 claimant is, in fact, disabled.” Id. at 1021. 19 The court finds that not all the conditions for an award of benefits are met. Although the 20 record has been fully developed and the ALJ failed to provide legally sufficient reasons to reject 21 evidence, it is not clear that even if the improperly rejected evidence were credited as true, the 22 ALJ would be required to find plaintiff disabled. Rather, the court finds that further 23 administrative proceedings would be useful in order to allow the ALJ to reevaluate the 1 improperly rejected evidence along with the rest of the evidence. Accordingly, the court finds 2 that remand for further administrative proceedings is the proper remedy. 3 CONCLUSION 4 For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is

5 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 6 On remand, the ALJ shall reevaluate the opinions of Dr. Postovoit, Dr. Widlan, and Dr. Ross. 7 The ALJ shall further develop the record and redo the five-step disability evaluation process as 8 needed to make a new decision. 9 DATED this 24th day of March, 2023. 10 A 11 BRIAN A. TSUCHIDA United States Magistrate Judge 12

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