Weismandel v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 20, 2022
• Docket: 3:21-cv-05336
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 THERESA R. W., CASE NO. 3:21-CV-5336-DWC 11 Plaintiff, ORDER 12 v. 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 16 Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) and 17 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 18 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 19 the undersigned Magistrate Judge. See Dkt. 2. 20 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 21 erred when he evaluated the medical opinion evidence. As this impacted the final disability 22 determination, the ALJ’s error is therefore harmful, and this matter is reversed and remanded 23 24 1 pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security 2 (“Commissioner”) for further proceedings consistent with this Order. 3 FACTUAL AND PROCEDURAL HISTORY 4 On February 9, 2016, Plaintiff filed applications for DIB and SSI, alleging disability as of

5 December 31, 2001. See Dkt. 10, Administrative Record (“AR”) 197–212. The applications were 6 denied upon initial administrative review and on reconsideration. See AR 73–74, 87–88. A 7 hearing was held before Administrative Law Judge (“ALJ”) Cynthia Rosa on April 16, 2018. See 8 AR 30–57. In a decision dated June 26, 2018, ALJ Rosa determined Plaintiff to be not disabled. 9 See AR 7–26. Plaintiff’s request for review of ALJ Rosa’s decision was denied by the Appeals 10 Council, making ALJ Rosa’s decision the final decision of the Commissioner. See AR 1–6; 20 11 C.F.R. § 404.981, § 416.1481. 12 Plaintiff sought review of the ALJ’s decision in this Court, and on April 21, 2020, this 13 Court remanded Plaintiff’s case by stipulation of the parties. See AR 1338–41. On July 18, 2020, 14 the Appeals Council remanded the case for a new hearing. AR 1342–49. This new hearing was

15 held before ALJ Derek Johnson on December 4, 2020. See AR 1284–1311. On January 6, 2021, 16 ALJ Johnson issued a new decision in which he found Plaintiff to be not disabled. See AR 1227– 17 55. 18 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by improperly evaluating 19 the opinion of a medical source. Dkt. 15, p. 1. 20 STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 22 social security benefits if the ALJ’s findings are based on legal error or not supported by 23

24 1 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 2 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 3 I. Whether the ALJ Properly Evaluated the Medical Opinion Evidence 4 Plaintiff assigns error to the ALJ’s evaluation of a medical opinion from John Adler,

5 Psy.D. Dkt. 15, p. 2. 6 A. Medical Opinion Standard of Review 7 Pursuant to applicable case law, in assessing an acceptable medical source, the ALJ must 8 provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a 9 treating or examining doctor. Lester v. Chater, 81 F.3d 821, 830 (1995) (citing Pitzer v. Sullivan, 10 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).1 11 When a treating or examining doctor’s opinion is contradicted, the opinion can be rejected “for 12 specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 13 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). 14 B. Opinion of Dr. Adler

15 John Adler, Psy.D., an examining psychologist, reviewed Plaintiff’s medical records and 16 performed a clinical interview and mental status examination on June 3, 2016. AR 1019–24. Dr. 17 Adler diagnosed Plaintiff with post-traumatic stress disorder and unspecified depressive disorder, 18 and wrote that 19 [Plaintiff] reported frequent panic attacks, but also nightmares and sleep problems where she relives past abusive situations. Her office behavior showed 20 signs of distrust, fear and cautiousness, and this suggests impairment coping with stress (she was also hospitalized only one week ago for suicidal ideation, and for 21 22 1 The Administration has amended regulations for evaluating medical evidence, but the amended regulations apply only to claims filed on or after March 27, 2017 and therefore are not relevant to this case. See 20 C.F.R. §§ 23 404.1527, 416.927 (applicable to claims filed before March 27, 2017); 20 C.F.R. §§ 404.1520c, 416.920c (applicable to claims filed after March 27, 2017). 24 1 the past two weeks has been instructed not to perform much of any daily chores). The client is appropriate and pleasant socially, but cautious as noted above. Her 2 cognitive skills were not a major problem, and she is able to understand and remember simple instructions. She actually performed well (during history and 3 mental tasks) with more complex instructions/tasks, as they pertain to understanding, memory, concentration and attention. However, she did seem 4 credible when describing how she has frequent episodes of much higher anxiety, and at those times, it seems more possible that her focusing and task completion is 5 not so good. She also provided many details in the history that are consistent with those claims, including multiple work settings at her most recent jobs. The other 6 records provided are also consistent with mood and coping problems.

7 AR 1022–23. 8 The ALJ gave this opinion “some weight,” finding Dr. Adler’s opinion that Plaintiff 9 would have difficulty coping with stress and more difficult tasks, and dealing with others, due to 10 anxiety was consistent with treatment notes and records. AR 1244. The ALJ went on to find that 11 Plaintiff’s ability to travel, maintain relationships, attend school, raise children, work part-time, 12 and pursue litigation “demonstrates the ability to perform activities consistent with the residual 13 functional capacity.” Id. 14 While the ALJ gave Dr. Adler’s opinion “some weight,” the ALJ did not actually identify 15 what portion of the opinion he intended to reject—instead, only stating that Plaintiff’s activities 16 showed a residual functional capacity (“RFC”) that was greater than the abilities assessed by Dr. 17 Adler, but not rejecting any specific limitations. Plaintiff avers that the ALJ erred by discounting 18 Dr. Adler’s opinion to the extent it is inconsistent with the ALJ’s RFC assessment. Dkt. 15, p. 5. 19 The Commissioner responds by arguing that the ALJ’s decision accounts for all of Dr. Adler’s 20 opined limitations, and “there is no requirement for the ALJ to use the same language used by 21 any particular doctor.” Dkt. 16, p. 2. 22 In Laborin v. Berryhill, 867 F.3d 1151 (9th Cir. 2017), the Ninth Circuit addressed a 23 situation similar to that which is presented here. Therein, the ALJ discounted a claimant’s 24 1 testimony to the extent it was inconsistent with the RFC assessment. Id. at 1152. The Ninth 2 Circuit observed that an ALJ assesses a claimant’s RFC “based on all the relevant evidence in 3 the case record,” including the “medical evidence,” the claimant’s testimony, and descriptions 4 and observations provided by “family, friends, and other people.” Id. at 1153 (citation, quotation

5 marks, and brackets omitted). The Ninth Circuit thus held that the ALJ erred by discounting the 6 claimant’s testimony to the extent it was inconsistent with the RFC assessment, because such a 7 finding “‘inverts the responsibility of an ALJ, which is first to determine the medical 8 impairments of a claimant based on the [relevant evidence in the case] record . . . and only then 9 to determine the claimant’s RFC.’” Id. at 1154 (quoting Trevizo v. Berryhill, 862 F.3d 987, 1000 10 n.6 (9th Cir. 2017)). The Ninth Circuit also held that the error was not harmless because the ALJ 11 failed to provide other, legally sufficient reasons for discounting the claimant’s testimony. Id. at 12 1155–56. 13 As in Laborin, the ALJ in this case erred by discounting Dr. Adler’s opinion to the extent 14 it was inconsistent with the ALJ’s RFC assessment. See Mickei L.B. v. Commissioner of Social

15 Security, No. C18-6048-TLF, 2020 WL 1502931, at *4 (W.D. Wash. Mar. 30, 2020) (citing 16 Laborin for proposition that “the ALJ must consider medical evidence in assessing the RFC, and 17 cannot then discredit such evidence because it is inconsistent with that RFC,” and thus holding 18 that the ALJ’s evaluation was not supported by substantial evidence on this basis); see also 19 Laborin, 867 F.3d at 1154 (noting that the RFC “must be based on the evidence, . . . rather than 20 forcing the [relevant evidence] into a foregone [RFC] conclusion”) (citation omitted). 21 The remaining question is whether the ALJ provided other specific and legitimate reasons 22 for discounting this portion of Dr. Adler’s opinion, and if the ALJ did, the above error is 23 harmless. See id. (explaining that rejecting evidence on the ground that it is inconsistent with the

24 1 ALJ’s RFC assessment “is not, by itself, reversible error and can be harmless”) (citation 2 omitted). 3 The ALJ also discounted Dr. Adler’s opinion on the basis that it was inconsistent with 4 evidence that Plaintiff “has traveled, maintained relationships, attended school, raised children,

5 worked part-time, and pursued litigation.” AR 1244 (citing AR 614–17, 1020, 1111, 1115–16, 6 1319–22, 1591–94). But the ALJ does not explain how these activities require the sort of 7 sustained focus and task completion that is typical of the competitive full-time work 8 environment. See Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (“[M]any home 9 activities are not easily transferable to what may be the more grueling environment of the 10 workplace, where it might be impossible to periodically rest or take medication.”). The ALJ’s 11 citations to the record indicate that Plaintiff’s part-time work experience was informal—her most 12 recent job consisted of helping her spouse in the office—and unsuccessful, as she did not last for 13 a long time in any of her jobs. See AR 1020. Plaintiff’s ability to pursue litigation, without more, 14 is also not inconsistent with Dr. Adler’s opinion; if the ability to pursue litigation were indicative

15 of the ability to work, the disability appeals process would be rendered largely superfluous. 16 Finally, as for traveling, attending classes, and raising children, it was error for the ALJ to assert 17 any contradiction between activity and the purported limitations without identifying the activities 18 that were involved. See Trevizo, 871 F.3d at 676 (ALJ’s repeated reference to childcare activities 19 did not constitute a “specific and legitimate” reason for rejecting doctor’s opinion, where the 20 ALJ did not provide any details as to what said childcare activities involved). 21 The ALJ erred in relying on Plaintiff’s activities to discount Dr. Adler’s opinion. Because 22 the ALJ did not provide any other specific and legitimate reasons for rejecting this portion of the 23 opinion, the ALJ’s evaluation was not supported by substantial evidence.

24 1 C. Harmless Error 2 The ALJ erred in evaluating the opinion of Dr. Adler. While the ALJ erred, the Court 3 must determine whether this error was harmless. Harmless error principles apply in the Social 4 Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless,

5 however, only if it is not prejudicial to the claimant or is “inconsequential” to the ALJ’s 6 “ultimate nondisability determination.” Stout v. Commissioner, Social Security Admin., 454 F.3d 7 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. The determination as to whether an 8 error is harmless requires a “case-specific application of judgment” by the reviewing court, based 9 on an examination of the record made “‘without regard to errors’ that do not affect the parties’ 10 ‘substantial rights.’” Molina, 674 F.3d at 1118–1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 11 407 (2009) (quoting 28 U.S.C. §2111)). 12 In this case, the ALJ’s error was not harmless. Had the ALJ properly considered the 13 opinion of Dr. Adler, the ALJ may have incorporated limitations opined therein into Plaintiff’s 14 RFC. Had the ALJ incorporated such limitations, in turn, the ultimate disability determination

15 may have changed. Accordingly, the ALJ’s error was not harmless and requires reversal. 16 II. Remand for Additional Proceedings 17 The parties agree that, if this Court finds harmful error in the ALJ’s decision, the Court 18 should remand the case for an award of benefits. Dkt. 15, p. 7; Dkt. 16, p. 3. “‘The decision 19 whether to remand a case for additional evidence, or simply to award benefits[,] is within the 20 discretion of the court.’” Trevizo, 871 F.3d at 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 21 1232 (9th Cir. 1987)). If an ALJ makes an error and the record is uncertain and ambiguous, the 22 court should remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 23 1045 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy the

24 1 ALJ’s errors, it should remand the case for further consideration. Revels v. Berryhill, 874 F.3d 2 648, 668 (9th Cir. 2017). 3 In this case, the Court has directed the ALJ to re-evaluate medical opinion evidence. See 4 Section I., supra. Because outstanding issues remain regarding the medical opinion evidence and

5 the RFC, remand for further consideration of this matter is appropriate. 6 CONCLUSION 7 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 8 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 9 this matter is remanded for further administrative proceedings in accordance with the findings 10 contained herein. 11 Dated this 20th day of January, 2022. 12 A 13 David W. Christel United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24