1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Mar 03, 2023 2 SEAN F. MCAVOY, CLERK 3
4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5
6 GIDEON T.,1 No. 4:21-cv-5135-EFS
7 Plaintiff, ORDER GRANTING PLAINTIFF’S 8 v. SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S 9 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION, Commissioner of Social Security, REVERSING THE ALJ DECISION, 10 AND REMANDING FOR AN Defendant. AWARD OF BENEFITS 11
13 Plaintiff Gideon T. appeals the denial of benefits by the Administrative Law 14 Judge (ALJ). Because the ALJ failed to provide legally sufficient reasons for 15 rejecting disabling medical opinions, the Court reverses the ALJ’s decision. 16 Additionally, the Court finds this is a rare case warranting remand for an 17 immediate award of benefits. 18 /// 19 // 20 / 21 22 1 For privacy reasons, Plaintiff is referred to by first name and last initial or as 23 “Plaintiff.” See LCivR 5.2(c). 1 I. Five-Step Disability Determination 2 A five-step evaluation determines whether a claimant is disabled.2 Step one
3 assesses whether the claimant is engaged in substantial gainful activity.3 Step two 4 assesses whether the claimant has a medically severe impairment or combination 5 of impairments that significantly limit the claimant’s physical or mental ability to 6 do basic work activities.4 Step three compares the claimant’s impairment or 7 combination of impairments to several recognized by the Commissioner to be so 8 severe as to preclude substantial gainful activity.5 Step four assesses whether an 9 impairment prevents the claimant from performing work he performed in the past
10 by determining the claimant’s residual functional capacity (RFC).6 Step five 11 assesses whether the claimant can perform other substantial gainful work—work 12 that exists in significant numbers in the national economy—considering the 13 claimant’s RFC, age, education, and work experience.7 14 /// 15 //
16 / 17 18 2 20 C.F.R. §§ 404.1520(a), 416.920(a). 19 3 Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b). 20 4 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). 21 5 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). 22 6 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
23 7 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). 1 II. Background 2 In March 2018, Plaintiff filed applications for disability benefits under
3 Title 2 and Title 16, alleging disability beginning December 2017 due to vision 4 problems, anxiety, depression, vocal-tic disorder, autism spectrum (Asperger’s 5 syndrome), obesity, and sleep apnea.8 After his applications were denied initially 6 and again upon reconsideration, Plaintiff requested a hearing. 7 A. 2020 ALJ Hearing, Decision, & Remand 8 In January 2020, ALJ Mark Kim held a hearing at which Plaintiff and a 9 vocational expert presented testimony.9 In the resulting decision, the ALJ found
10 Plaintiff had the severe impairments of autism-spectrum disorder, vocal-tic 11 disorder, depressive disorder, anxiety disorder, math/reading learning disorder, 12 and obesity.10 The ALJ concluded that despite these severe impairments, Plaintiff 13 could perform the representative-job requirements of a janitor, hand packager, and 14 electronics worker.11 However, in August 2020, the Appeals Counsel reversed the 15 ALJ’s decision and remanded the case for the same ALJ to, among other things,
16 reassess the medical-opinion evidence and further evaluate Plaintiff’s mental 17 impairments. 18 19 20 8 AR 103, 320–42. 21 9 AR 48–76, 158. 22 10 AR 161.
23 11 AR 166–67. 1 B. 2021 ALJ Hearing & Decision 2 In February 2021, the ALJ held another hearing. At this second hearing,
3 the ALJ received further testimony from Plaintiff and the vocational expert.12 4 After the hearing, the ALJ denied Plaintiff’s disability applications.13 As to the 5 sequential disability analysis, the ALJ found: 6 • Plaintiff met the insured status requirements through March 31, 2019. 7 • Step one: Plaintiff had not engaged in substantial gainful activity since 8 December 23, 2017, the alleged onset date. 9 • Step two: Plaintiff had the following medically determinable severe
10 impairments: autism-spectrum disorder, vocal-tic disorder, depressive 11 disorder, anxiety disorder, and obesity. 12 • Step three: Plaintiff did not have an impairment or combination of 13 impairments that met or medically equaled the severity of one of the 14 listed impairments. 15 • RFC: Plaintiff had the RFC to perform a full range of work at all
16 exertional levels but with the following nonexertional limitations: 17 o never climb ladders, ropes, or scaffolds, and only occasionally crawl; 18 o no exposure to unprotected heights; 19 o only simple, routine and unskilled tasks that involve only occasional 20 job-related decision making; 21 22 12 AR 77–78.
23 13 AR 15–34. 1 o only occasional and simple changes in the work setting; 2 o no fast-paced type tasks; and
3 o no work involving any interaction with the public. 4 • Step four: Plaintiff had no past relevant work. 5 • Step five: considering Plaintiff’s RFC, age, education, and work history, 6 he could perform work that existed in significant numbers in the national 7 economy, such as janitor, hand packager, and automobile detailer.14 8 In reaching his decision, as to medical opinions regarding Plaintiff’s mental 9 limitations, the ALJ found,
10 • “generally persuasive” the June and November 2018 opinions of state- 11 agency reviewing psychological consultants Bruce Eather, PhD, and Jan 12 Lewis, PhD; 13 • “generally persuasive” (subject to certain exceptions) the September 2016 14 opinion of examining psychologist Jameson Lontz, PhD; 15 • “partially persuasive” the October 2018 opinion of examining psychologist
16 Patrick Metoyer, PhD; 17 • “unpersuasive” the February 2018 opinion of examining psychologist 18 N.K. Marks, PhD; 19 • “unpersuasive” the February 2018 opinion of state-agency reviewing 20 psychological consultant Melanie Mitchell, PsyD; and 21 22
23 14 AR 33–34. 1 • “unpersuasive” the November 2012 opinion of vocational rehabilitation 2 counselor Monica Orellana, VRC.15
3 The ALJ also found Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms, but his statements 5 concerning the intensity, persistence, and limiting effects of those symptoms are 6 “not entirely consistent with the medical evidence and other evidence in the 7 record.”16 8 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 9 which denied review.17 Plaintiff timely appealed to the Court.
10 III. Standard of Review 11 A district court’s review of the Commissioner’s final decision is limited.18 12 The Commissioner’s decision is set aside “only if it is not supported by substantial 13 evidence or is based on legal error.”19 Substantial evidence is “more than a mere 14 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion.”20
16 17 18 15 AR 28–32. 19 16 AR 23. 20 17 AR 1–6. 21 18 42 U.S.C. § 405(g). 22 19 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).
23 20 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 1 Moreover, the Court considers the entire record.21 Because it is the role of 2 the ALJ—and not the Court—to weigh conflicting evidence, the Court upholds the
3 ALJ’s findings “if they are supported by inferences reasonably drawn from the 4 record.”22 And the Court may not reverse an ALJ decision due to an error that is 5 inconsequential to the ultimate nondisability determination.”23 6 IV. Analysis 7 Plaintiff argues that the ALJ erred by (1) improperly assessing the medical 8 opinions of examining psychologists, (2) discounting Plaintiff’s symptom reports for 9 being inconsistent with the record, (3) failing to find Plaintiff met or equaled
10 Listing 12.10, and (4) crafting an RFC that failed to include all of Plaintiff’s 11 functional limitations.24 As explained below, the Court finds the ALJ reversibly 12 erred in assessing the medical-opinion evidence, and the record supports 13 remanding for an immediate award of benefits. 14 15 21 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must
16 consider the entire record as a whole, weighing both the evidence that supports and 17 the evidence that detracts from the Commissioner’s conclusion,” not simply the 18 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 19 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does not indicate that 20 such evidence was not considered[.]”). 21 22 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 22 23 Id. (cleaned up).
23 24 See generally ECF No. 14. 1 A. Medical Opinions: Plaintiff shows consequential error. 2 An ALJ must consider and evaluate the persuasiveness of all medical
3 opinions and prior administrative medical findings.25 The factors for evaluating 4 persuasiveness include, but are not limited to, supportability, consistency, 5 relationship with the claimant, and specialization.26 Supportability and 6 consistency are the most important factors, and the ALJ is required to explain how 7 both were considered.27 Typically, the ALJ may, but is not required to, explain how 8 the other factors were considered.28 9 1. Dr. Lontz: Plaintiff shows consequential error.
10 In September 2016, Jameson Lontz, PhD, performed a comprehensive 11 psychological evaluation of Plaintiff, during which Dr. Lontz conducted a clinical 12 interview and administered several tests/assessments.29 Dr. Lontz also spoke with 13 Plaintiff’s mother and reviewed medical records from July 2016 in addition to an 14 Individualized Education Plan that was in place while Plaintiff attended 15 elementary and/or middle school.30
16 17 25 Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867–68; see 20 18 C.F.R. §§ 404.1520c(a), 416.920c(a). 19 26 20 C.F.R. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 20 27 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). 21 28 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). 22 29 AR 964–75 (duplicated in part at AR 607–16).
23 30 See, e.g., AR 560. 1 Dr. Lontz diagnosed Plaintiff with autism-spectrum disorder, without 2 accompanying intellectual impairment, as well as persistent vocal-tic disorder.31
3 Dr. Lontz opined that Plaintiff “demonstrated marked deficits in verbal and 4 nonverbal communication which are ongoing,” and that Plaintiff’s “[s]ocial 5 impairments have continued despite support throughout schooling as well as at 6 home by his parents.”32 Dr. Lontz further said, “Difficulties coping with change 7 across settings are obvious to the casual observer and [Plaintiff] will require 8 ongoing supports to address these concerns.”33 9 Dr. Lontz believed that “with a high school diploma, and higher than
10 average verbal skills, [Plaintiff] could certainly be employed in some capacity.”34 11 But Dr. Lontz noted that Plaintiff “will require accommodations to some degree 12 indefinitely.”35 Dr. Lontz suggested that Plaintiff “contact rehabilitation services 13 to assist him in maximizing occupational success.”36 Dr. Lontz also said, “During 14 the workday, [Plaintiff] is encouraged to take frequent breaks of short duration 15 (e.g., 15 minute breaks every 60–90 minutes during the workday.)”37
16 17 31 AR 971. 18 32 AR 970. 19 33 AR 970. 20 34 AR 970. 21 35 AR 971. 22 36 AR 971.
23 37 AR 971. 1 The ALJ found Dr. Lontz’s opinion generally persuasive, noting it was the 2 most comprehensive evaluation on record and that Dr. Lontz administered “a
3 battery of formal testing.”38 However, the ALJ found the assessed marked deficits 4 in verbal and nonverbal communication “are not supported by the claimant’s 5 presentation on exam nor his reported activities/functioning.”39 6 a. Supportability Factor 7 In explaining why he found the opined marked deficits in communication to 8 be unsupported, the ALJ said, “while Dr. Lontz noted claimant had frequent 9 stutter in speaking, he indicated claimant’s speech was generally within normal
10 limits, and claimant was otherwise ‘pleasant, appropriately engaged,’ ‘personable 11 and polite,’ euthymic and appropriate mood/affect, and ‘gave a good response to 12 humor,’ also ‘offered jokes on occasion.’”40 The ALJ, however, did not explain how 13 these observations undermined Dr. Lontz’s assessment or why someone who is 14 seriously limited in his ability to communicate cannot also be polite and have a 15 sense of humor.41
16 17 38 AR 29. 18 39 AR 29. 19 40 AR 29 (quoting in part AR 966). 20 41 Cf. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.00(F)(2)(d) (defining a 21 “marked limitation” for purposes of mental disorders to mean that “functioning in 22 this area independently, appropriately, effectively, and on a sustained basis is
23 seriously limited”). 1 Further, Dr. Lontz offered substantial support for his determination that 2 Plaintiff demonstrated “several deficits in social communication and interaction
3 across settings (currently and by history).”42 For example, not only did Plaintiff 4 stutter “frequently” while speaking, but also his persistent vocal-tic disorder took 5 the form of “stressing certain syllables and repeating other syllables.”43 Dr. Lontz 6 noted that Plaintiff’s “unusual tone and rhythm of speech which makes it difficult 7 to carry a conversation so as to form and maintain peer relationships” was of 8 particular concern to Plaintiff’s mother.44 And Dr. Lontz explained that Plaintiff’s 9 behavior “may strike others as unusual, annoying, or irritating, and therefore lead
10 to increased anxiety and depression as a result of social disconnect[.]”45 11 The ALJ failed to provide a valid reason supported by substantial evidence 12 for discounting portions of Dr. Lontz’s opinion as being unsupported. 13 b. Consistency Factor 14 The ALJ stated, “The assessed marked deficits are also not consistent with 15 claimant’s ability to shop in stores independently, help his parents (including with
16 transportation and shopping), socialize regularly with church members/friends, 17 and his work as an order delivery driver for Door Dash.”46 In assessing 18 19 42 AR 969. 20 43 AR 966, 970. 21 44 AR 969. 22 45 AR 969.
23 46 AR 29–30. 1 consistency, an ALJ may properly consider a claimant’s reported daily activities, 2 and any incongruity between a doctor’s opinion and those activities and/or other
3 evidence.47 But the ALJ did not explain how the identified activities are 4 inconsistent with a marked limitation in communication.48 5 Neither checking out at a store nor working as a delivery driver for 6 DoorDash inherently involves more than superficial in-person interaction and 7 communication.49 Without more, nothing in the record suggests that such activity 8 is beyond the capabilities of someone with marked communication deficits.50 9
10 47 See 20 C.F.R. § 404.1529; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 11 2008). 12 48 Additionally, as discussed below, the record indicates that Plaintiff’s reported 13 daily activities may reflect an exaggerated view of his abilities. 14 49 Based on common experience, as well as the company’s website, DoorDash food- 15 delivery orders are handled through its mobile app and website, with the entire
16 process requiring little-to-no human interaction. See www.doordash.com; see also 17 AR 92 (Plaintiff indicating that, particularly amid the Covid-19 epidemic, it was 18 rare to physically hand an order to a customer.). 19 50 See Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (recognizing that a 20 claimant’s ability to engage in some activities “does not contradict the evidence of 21 otherwise severe problems”); cf. also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 22 Cir. 2001) (noting that the Ninth Circuit has “repeatedly asserted that the mere
23 fact that a plaintiff has carried on certain daily activities, such as grocery 1 Similarly, the ALJ gave no reason why someone with the assessed marked 2 limitations would be incapable of sometimes helping parents with household chores
3 and/or maintaining a small group of church friends.51 Indeed, parents, as well as 4 church friends, are particularly likely to be more familiar with Plaintiff, better 5 understand him, and continue engaging with him despite his communication 6 deficits. Moreover, Dr. Lontz’s observations and opinions are largely consistent 7 with those of the other psychologists who conducted in-person evaluations of 8 Plaintiff.52 9 The ALJ failed to provide a valid reason supported by substantial evidence
10 for discounting portions of Dr. Lontz’s opinion as being inconsistent with other 11 evidence of record. 12 13 14 shopping, . . . does not in any way detract from h[is] credibility as to h[is] overall 15 disability”).
16 51 Cf. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home activities are 17 not easily transferable to what may be the more grueling environment of the 18 workplace . . . .”); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[D]isability 19 claimants should not be penalized for attempting to lead normal lives in the face of 20 their limitations.”). 21 52 See AR 601–06, 659–63. But see AR 667 (Nov. 2018: examining physician, in 22 providing a functional assessment of Plaintiff’s physical abilities, opining that
23 Plaintiff’s autism “seems to have improved remarkably.”). 1 c. Rest Breaks & Attendance 2 Despite finding Dr. Lontz’s opinion “generally persuasive,” the ALJ did not
3 address or incorporate into Plaintiff’s RFC Dr. Lontz’s recommendation 4 encouraging Plaintiff to take “frequent breaks of short duration (e.g., 15 minute 5 breaks every 60–90 minutes during the workday.)”53 Notably, examining 6 psychologists Dr. Marks and Dr. Metoyer both indicated that Plaintiff’s 7 psychological symptoms would cause moderate (defined as “significant”) limitations 8 in his ability to complete a normal workday and workweek.54 Even the state- 9 agency reviewing physicians—whom the ALJ found persuasive—opined that
10 Plaintiff would be moderately limited in this area, with Dr. Eather explaining that 11 Plaintiff would have “occasional interruptions” from his psychological symptoms.55 12 The ALJ erred by failing to address medical opinions and other evidence 13 suggesting that, if employed full time, Plaintiff would likely need extra rest breaks 14 and/or experience significant interruptions based on his mental impairments. 15 According to the vocational expert’s testimony, frequent breaks and/or
16 17 18 19 53 AR 971. The ALJ did mention, however, that a consultative medical 20 examination indicated Plaintiff’s physical limitations would not cause him to 21 require extra breaks. AR 24. 22 54 AR 604, 662
23 55 AR 110, 121; see also AR 136, 149. 1 interruptions would likely exceed the maximum amount of off-task time allowed in 2 competitive employment.56 The ALJ’s error is therefore consequential.
3 2. Dr. Marks: Plaintiff shows consequential error. 4 In February 2018, N.K. Marks, PhD, performed a psychological evaluation of 5 Plaintiff.57 As relevant here, Dr. Marks opined that Plaintiff would have a severe 6 limitation in his ability to communicate and perform effectively in a work setting. 7 Dr. Marks also assessed marked limitations in Plaintiff’s abilities to ask simple 8 questions or request assistance, to complete a normal workday and workweek 9 without interruptions from psychologically based symptoms, and to set realistic
10 goals and plan independently.58 11 The ALJ found Dr. Marks’ opinion unpersuasive for five reasons: (1) the 12 opinion was based on a one-time examination, (2), it was “mostly in checkbox form 13 with no meaningful explanation for ratings assessed,” (3) Dr. Marks provided “only 14 cursory evaluation with no significant testing or records review aside from 15 referencing Dr. Lontz’s consultative evaluation from 2016,” (4) the opined
16 limitations are inconsistent with the medical evidence and Plaintiff’s testimony, 17 18 19 20 56 See AR 74, 101 (opining that employers would not tolerate a worker being off 21 task more than 10% of the time). 22 57 AR 601–06.
23 58 AR 603–04. 1 and (5) the limitations are inconsistent with Plaintiff’s activities of daily living.59 2 Plaintiff argues the ALJ’s reasons are insufficient.60
3 a. Familiarity, Form, & Supportability Factors 4 The ALJ’s first three reasons fail. It is true that Dr. Marks examined 5 Plaintiff once and presented her opinion on a mostly checkbox form. But the state- 6 agency reviewing physicians did not examine Plaintiff at all, they also used 7 checkbox forms, and they provided far less explanation than did Dr. Marks.61 8 Because the ALJ did not similarly discount the reviewing state-agency opinions, 9 instead finding them more persuasive, these are not legitimate bases for
10 discounting Dr. Marks’ examining opinion.62 11 More—and contrary to the ALJ’s assertions—Dr. Marks’ evaluation was well 12 supported and explained.63 In examining Plaintiff, Dr. Marks not only reviewed 13 14 59 AR 31. 15 60 ECF No. 14 at 13.
16 61 See AR 103–24, 127–52. 17 62 See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (recognizing that it is not 18 legitimate to discount an opinion for a reason that is not responsive to the medical 19 opinion). 20 63 In assessing persuasiveness, that an opinion is expressed via checkbox form is 21 relevant only to the extent that it informs other factors, such as supportability and 22 consistency. See 20 C.F.R. § 404.1520c; see also Trevizo v. Berryhill, 871 F.3d 664,
23 677 n.4 (9th Cir. 2017) (“[T]here is no authority that a ‘check-the-box’ form is any 1 Dr. Lontz’s September 2016 evaluation, but she also conducted her own clinical 2 interview of Plaintiff and administered additional tests/assessments.64 Dr. Marks’
3 explanations included personal observations in support of her findings. For 4 instance, Dr. Marks described Plaintiff as a “[v]ery pleasant, cooperative young 5 man who shows difficulty with reciprocity, giving too much information at times 6 (tangential explanations to get all the details in), little self-awareness, [and] poor 7 math skills. His communication was overly formal and pedantic.”65 Dr. Marks 8 continued, “He presents with a vocal tic in which he repeats sounds multiple times 9 in beginning, middle and end of words. He is difficult to follow for the untrained
10 11 12 13 14 15
16 less reliable than any other type of form; indeed, agency physicians routinely use 17 these types of forms to assess the intensity, persistence, or limiting effects of 18 impairments.”). 19 64 See AR 603–605 (including the Beck Depression Inventory, the Beck Anxiety 20 Inventory, a Mental Status Exam, and memory tests for immediate simple recall, 21 immediate complex recall, multistep recall, sentence structure, digits forward, 22 digits backward, mental math, and delayed recall).
23 65 AR 978. 1 listener.”66 Dr. Marks observed that Plaintiff “wants to work, but his conditions 2 will present challenges. He is difficult to understand.”67
3 b. Consistency Factor 4 The ALJ found Dr. Marks’ opinion inconsistent with Plaintiff’s presentation 5 upon examination. The ALJ explained, “Although Dr. Marks noted claimant had 6 an anxious mood/affect and exhibited some communication deficits due to his vocal 7 tic, the examiner indicated claimant was otherwise within normal limits on all 8 mental status categories (e.g., attitude/behavior (open, cooperative, verbal), 9 thought process/content, orientation, perception, memory, fund of knowledge,
10 concentration, abstract thought, and insight/judgment).”68 The ALJ found the 11 opined marked limitations inconsistent with Plaintiff’s reported activities of daily 12 living.69 The ALJ also focused on Plaintiff’s memory, saying, “Notably, in contrast 13 to Dr. Lontz’s findings, Dr. Marks indicated claimant was within normal limits for 14 15
16 66 AR 978; see also AR 977 (Again saying, “His communication was difficult to 17 understand. He sometimes gave too much information. Language was overly 18 formal.”). 19 67 AR 979. 20 68 See AR 31 (“Although Dr. Marks noted claimant had an anxious mood/affect and 21 exhibited some communication deficits due to his vocal tic, the examiner indicated 22 claimant was otherwise within normal limits on all mental status categories. . . .”).
23 69 See AR 31. 1 immediate memory, working memory (‘good’), long-term memory, and memory for 2 both simple and complex directives.”70
3 The ALJ failed to articulate any meaningful inconsistency. Nothing in the 4 record suggests that someone who presents as cooperative and within normal 5 limits as to concentration and memory cannot also be markedly limited in his 6 ability to request assistance and/or complete a normal work schedule without 7 interruptions from psychologically based symptoms.71 Neither Dr. Lontz nor 8 Dr. Marks indicated Plaintiff’s communication limitations were memory based, and 9 Plaintiff’s longitudinal history shows he has consistently presented as polite and
10 engaged while still demonstrating significant communication deficits since 11 childhood.72 Further, as already discussed regarding Dr. Lontz’s opinion, the ALJ 12 13 70 AR 31. 14 71 See AR 603–04. Cf. Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) 15 (holding claimant’s “good eye contact, organized and logical thought content, and
16 focused attention” did not contradict his reported symptoms of depression and 17 social anxiety). 18 72 Though Plaintiff’s school-age records predate the relevant period (and Plaintiff 19 does not base any arguments on them), many such records contain medical 20 opinions, observations, and findings that are remarkably similar to those found in 21 later psychological evaluations. For example, in May 2007, psychologist Laura 22 Horan evaluated Plaintiff for purposes of special-education needs. Plaintiff
23 presented as “extremely polite and considerate,” with good eye-contact. AR 551. 1 did not explain how Dr. Marks’ opined limitations are inconsistent with any of 2 Plaintiff’s reported activities.
3 Moreover, the evidence underlying the opinions of Dr. Marks and 4 Dr. Lontz—even regarding Plaintiff’s memory—is largely consistent. While 5 Dr. Lontz concluded that Plaintiff’s memory was “generally within the reduced 6 range,” he also found that Plaintiff’s test results for memory were “somewhat 7 inconsistent” and “quite variable.”73 Indeed, Dr. Lontz had observed Plaintiff 8 “presented a very good memory to details.”74 It is therefore unsurprising that 9 Dr. Marks decided not to include significant memory-related limitations in her
10 assessment. 11 The consistency inquiry is not simply a comparison of medical opinions; 12 rather, the ALJ must compare the opinion at issue against “the evidence from other 13 14 15 But Dr. Horan noted that Plaintiff had “an extended history of difficulties with
16 verbal and nonverbal communication and social interaction,” and she found he 17 continued to exhibit “difficulties with social thinking/social communication.” 18 AR 539, 551. Dr. Horan observed “a number of language strengths as well as areas 19 of weakness in communication.” AR 551. She explained that Plaintiff’s responses 20 were “overly formal” and, “though they seemed to answer the question in 21 substance, they felt awkward to the examiner.” AR 548. 22 73 AR 964, 968.
23 74 AR 965. 1 medical sources and nonmedical sources.”75 The ALJ’s decision neither articulates 2 a discrepancy in the underlying evidence, nor offers any explanation for why
3 Dr. Marks’ opinion is rendered less persuasive by the two doctors arriving at 4 slightly different conclusions when presented with mixed and borderline test 5 results.76 Because the ALJ’s consistency findings lack meaningful explanation 6 supported by substantial evidence, the ALJ consequentially erred.77 7 B. Plaintiff’s Reports: Plaintiff seemingly overestimated his abilities. 8 Because the ALJ’s assessment of the medical evidence impacted the rest of 9 his sequential analysis, the Court need not address Plaintiff’s remaining claims.
10 That said, in assessing Plaintiff’s reported symptoms and activities of daily living, 11 the ALJ neglected to address a potentially critical factor: Plaintiff’s apparent 12 proclivity to overestimate his own abilities. 13 1. Dr. Lontz’s and Dr. Marks’ Reports 14 In his report, Dr. Lontz highlighted several indications that Plaintiff is a 15 poor judge of his own abilities. Plaintiff told Dr. Lontz that geometry was his best
16 academic subject, explaining this was because “you have to follow certain rules in 17 order to yield a certain result.”78 A sentiment which Plaintiff repeated during the 18 19 75 See 20 C.F.R. § 404.1520c(c)(1) (emphasis added). 20 76 Cf. Orn, 495 F.3d at 632 (noting the distinction between clinical findings and a 21 physician’s conclusions based on those findings). 22 77 See Nguyen v. Chater, 100 F.3d 1362, 164 (9th Cir. 1996).
23 78 AR 608; see also AR 611. 1 January 2020 hearing, when he denied having any problems mathematics and 2 again said it was his best school subject.79 Based on Plaintiff’s statement to him,
3 Dr. Lontz found it noteworthy that math was the subject in which Plaintiff tested 4 the lowest; Plaintiff had “clearly demonstrated difficulties . . . (e.g., counted simple 5 arithmetic on his fingers)” when presented with questions “much simpler than 6 geometry.”80 7 Dr. Lontz observed that Plaintiff “exhibited variable awareness of his 8 performance while testing (e.g., believed he ‘flunked’ some tests on which he 9 performed quite well yet encountered time failures on other tests that were more
10 challenging to him.”81 Similarly, Dr. Marks later found that Plaintiff exhibited 11 “little self-awareness.”82 And, in interpreting Plaintiff’s personality-inventory 12 results, Dr. Lontz concluded that Plaintiff’s profile “indicated a tendency to engage 13 in deliberate, unsophisticated, or self-conscious attempts at appearing virtuous 14 (i.e., denial of those minor imperfections to which most would admit).”83 Thus, 15 Dr. Lontz’s 2016 report, Dr. Marks’ 2018 report, as well as other evidence of
16 17 18 19 79 AR 54. 20 80 AR 611. 21 81 AR 609. 22 82 AR 603. Dr. Marks also noted Plaintiff’s “poor math skills.” Id.
23 83 AR 612. 1 record,84 suggest that Plaintiff did not always accurately assess his own limitations 2 and likely exaggerated and/or overestimated some of his abilities—particularly
3 when reporting them to others.85 4 2. Functional Reports by Plaintiff’s Parents 5 In 2018, Plaintiff’s mother and father—who were well positioned to observe 6 Plaintiff’s daily activities—each filled out a function report on his behalf.86 Both 7 indicate that Plaintiff sometimes overestimates his abilities. Plaintiff’s mother 8 stated that he “likes to please” and he sometimes “assumes he has [something] all 9 figured out,” only to become overly frustrated when someone has to assist him.87
10 11 84 See, e.g., AR 395 (March 2018: state-agency interviewer observing, “He seemed to 12 lack comprehension of the meaning of when his employment ended as he would say 13 statements such as ‘well I really don’t know, I don’t think I stopped working.’ This 14 would seemingly contradict the facts about his employment history.”). 15 85 Dr. Lontz further indicated that Plaintiff’s autism-spectrum disorder was likely
16 the reason why he was able to test relatively high in areas of general knowledge 17 and yet struggle to apply such knowledge. AR 612. Given this discrepancy, it is 18 foreseeable that Plaintiff’s level of general knowledge would sometimes cause 19 someone—possibly even Plaintiff—to have an exaggerated impression of his overall 20 abilities. 21 86 Plaintiff lives on his parents’ property, in a small apartment attached to their 22 garage. AR 56, 83.
23 87 See AR 385. 1 She further explained, “If he does not understand something, he is not able to 2 convey that because he assumes people are speaking literally and therefore
3 mistakenly thinks he has the grasp of the situation.”88 4 Both parents also went into detail about how Plaintiff frequently needs 5 reminders, supervision, and/or direct assistance to complete simple tasks such as 6 washing dishes and yardwork.89 More, the family hired a caretaker who comes 7 twice weekly to check on Plaintiff and assist him with any neglected household 8 chores.90 Such evidence suggests that Plaintiff’s reports regarding managing his 9 own activities of daily living, “including his personal care/hygiene, cooking his own
10 meals, doing his own cleaning, [and] paying his own bills,” likely reflect Plaintiff 11 holding an exaggerated view of his own abilities and contributions.91 12 13 14 88 AR 388; see also AR 390 (“[I]f there are things he doesn’t understand when 15 conversations get complex[,] he doesn’t know the questions to ask to attain
16 comprehension.”). 17 89 See AR 372–381, 419; see also AR 418–19 (reporting that Plaintiff needs 18 reminders to shave). AR 418–19. 19 90 AR 93. 20 91 See AR 26 (citing AR 602), c.f. also, e.g., AR 665 (Plaintiff reporting doing his 21 own cleaning, laundry, and shopping as needed.). Compare also, e.g., AR 665 22 (Plaintiff reporting that he “takes care of his animals, like chickens and rabbits.”),
23 with, e.g., AR 378 (Plaintiff’s father clarifying that while Plaintiff may help with 1 3. The ALJ’s Lack of Discussion 2 Throughout his analysis, the ALJ repeatedly cited apparent inconsistencies
3 with Plaintiff’s reports as cause for discounting certain evidence. But, as 4 demonstrated above, and as Plaintiff argues on appeal, the overall record strongly 5 suggests that his autism-spectrum disorder “makes it so he is not always aware of 6 his own limitations and need for assistance.”92 When assessing a claimant’s 7 statements, the ALJ must be mindful as to the context and potential explanations 8 for apparent inconsistencies.93 The ALJ, however, did not address whether, or to 9 what extent, Plaintiff’s lack of self-awareness impacted his reports or contributed
10 to the apparent inconsistencies relied upon by the ALJ throughout his analysis.94 11 C. Reversal: Plaintiff shows an immediate award is appropriate. 12 Remand for further administrative proceedings is the usual course when a 13 harmful error occurs in the administrative proceeding, except in rare 14 15 feeding and providing water, it is Plaintiff’s mother who truly “provides all care”
16 for their animals.). 17 92 ECF No. 14 at 11. 18 93 See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017); Garcia v. Comm’r of 19 Social Sec., 768 F.3d 925, 930 (9th Cir. 2014) (“[I]t is incumbent upon the ALJ to 20 scrupulously and conscientiously probe into, inquire of, and explore for all the 21 relevant facts.” (cleaned up)). 22 94 See Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (requiring the ALJ to
23 identify and explain a perceived conflict to permit meaningful review). 1 circumstances.95 This is a case of rare circumstances. First, the ALJ failed to 2 provide legally sufficient reasons for rejecting the medical opinions of Dr. Lontz,
3 Dr. Marks, and Dr. Metoyer.96 4 Second, the Court finds further administrative proceedings would be of no 5 benefit.97 The Commissioner has had two opportunities to develop the record and 6 conduct administrative hearings. Notably, when the Appeals Council previously 7 remanded this case to the ALJ in August 2020, the Council expressly faulted the 8 ALJ’s assessment of the medical-opinion evidence—calling special attention to 9 those of Dr. Lontz and Dr. Marks.98 Squarely before the ALJ on remand was to
10 what extent Plaintiff’s psychological symptoms limit his abilities to communicate 11 effectively in the workplace and to complete a normal workday and workweek 12 without interruption. “Allowing the Commissioner to decide the issue again would 13 14 95 Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) 15 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
16 96 See Treichler, 775 F.3d at 1100–01. 17 97 See id. at 1101. 18 98 AR 176–77 (“The decision does not explain how Dr. Marks’ opinion regarding 19 ‘moderate,’ ‘marked,’ and ‘severe’ limitations (in areas that include communication, 20 performing tasks without special supervision, and completing a normal workday 21 and work week) is not supported by her own objective findings and explanation, or 22 consistent with evidence from other medical and nonmedical sources, including the
23 evaluation of Dr. Lontz . . . .”). 1 create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits 2 adjudication.”99 The Court therefore finds it appropriate to credit-as-true the
3 opinions of Dr. Lontz and Dr. Marks. 4 Third, when the improperly rejected medical opinions are fully credited, the 5 vocational expert’s testimony requires a finding that Plaintiff is disabled.100 6 Dr. Marks’ opinion, supported by Dr. Lontz’s opinion, establishes that Plaintiff 7 would have “very significant” difficulties with asking simple questions and/or 8 requesting assistance, and that he would be unable to communicate and perform 9 effectively in a work setting.101 Plaintiff would also have “very significant” issues
10 with completing a normal workday and workweek without interruptions from his 11 psychologically based symptoms.102 These limitations—as reflected in the record 12 overall—make clear that effectively communicating with Plaintiff and keeping him 13 on task and productive in the work environment would require more instruction 14 and supervision than is tolerated in completive employment.103 15
16 99 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 17 100 See Treichler, 775 F.3d at 1101. 18 101 See AR 603–04, 966–71. 19 102 See AR 604, 971. 20 103 See AR 99–100 (testifying that, after the employee’s initial 30 days of training, 21 employers are unlikely to tolerate anything more than “15 percent involvement 22 from the supervisor”); see also AR 74, 101 (testifying that employers will not
23 tolerate an employee being nonproductive more than 10% of the time). 1 V. Conclusion 2 Plaintiff establishes the ALJ reversibly erred. And the Court finds this is 3 of the rare cases in which remand for an immediate award of benefits is 4 || warranted. 5 Accordingly, IT IS HEREBY ORDERED: 6 1. Plaintiffs Motion for Summary Judgment, ECF No. 14, is 7 GRANTED. 8 2. The Commissioner’s Motion for Summary Judgment, ECF No. 16, is 9 DENIED. 10 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 11 4. The decision of the ALJ is REVERSED, and this matter is 12 REMANDED to the Commissioner of Social Security for immediate 13 calculation and award of benefits. 14 5. The case shall be CLOSED. 15 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 16 || provide copies to all counsel. 17 DATED this 3"¢ day of February 2023. i But F fee 19 EDWARD F.SHEA Senior United States District Judge 20 21 22 23