5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 MARIE W.,
8 Plaintiff, CASE NO. C19-5232-MAT
9 v. ORDER RE: SOCIAL SECURITY 10 ANDREW M. SAUL, DISABILITY APPEAL Commissioner of Social Security,1 11 Defendant. 12
13 Plaintiff proceeds through counsel in her appeal of a final decision of the Commissioner of 14 the Social Security Administration (Commissioner). The Commissioner denied plaintiff’s 15 application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law 16 Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all 17 memoranda, this matter is REMANDED for further administrative proceedings. 18 FACTS AND PROCEDURAL HISTORY 19 Plaintiff was born on XXXX, 1960.2 She completed high school and training as a licensed 20 practical nurse (LPN) and a certified nursing assistant (CNA). (AR 40-41, 227.) She previously 21 worked as an administrative clerk, LPN, CNA, patient transporter, and transcribing-machine 22 1 Andrew M. Saul is now Commissioner of the Social Security Administration (SSA). Pursuant to 23 Federal Rule of Civil Procedure 25(d), Andrew M. Saul is substituted for Nancy A. Berryhill as defendant. 2 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 operator. (AR 25.) 2 Plaintiff protectively filed for DIB in September 2015, alleging disability beginning 3 September 2, 2015. (AR 206.) The application was denied initially and on reconsideration. ALJ
4 C. Howard Prinsloo held a hearing on March 6, 2018, taking testimony from plaintiff and a 5 vocational expert (VE). (AR 33-74.) On July 2, 2018, the ALJ found plaintiff not disabled. (AR 6 15-27.) 7 Plaintiff timely appealed. The Appeals Council denied the request for review on February 8 21, 2019 (AR 1-5), making the ALJ’s decision the final decision of the Commissioner. Plaintiff 9 appealed this final decision of the Commissioner to this Court. 10 JURISDICTION 11 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 12 DISCUSSION 13 The Commissioner follows a five-step sequential evaluation process for determining
14 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must 15 be determined whether the claimant is gainfully employed. The ALJ noted plaintiff had worked 16 after the alleged onset date and was currently working part-time, but the activity did not raise to 17 the level of substantial gainful activity (SGA). Plaintiff therefore had not engaged in SGA since 18 the application date. At step two, it must be determined whether a claimant suffers from a severe 19 impairment. The ALJ found plaintiff’s anxiety disorder with a history of benzodiazepine abuse, 20 affective disorder, and personality disorder severe. He found body dysmorphic disorder, cervical 21 herniated discs, and a very recent fractured pelvis did not constitute severe impairments. Step three 22 asks whether a claimant’s impairments meet or equal a listed impairment. The ALJ found 23 plaintiff’s impairments did not meet or equal a listing. 1 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 2 residual functional capacity (RFC) and determine at step four whether the claimant demonstrated 3 an inability to perform past relevant work. The ALJ found plaintiff able to perform a full range of
4 work at all exertional levels, but able to have only brief and superficial interaction with the public 5 or co-workers and limited to simple, routine, and repetitive tasks. With that RFC, plaintiff could 6 not perform any past relevant work. 7 If a claimant demonstrates an inability to perform past relevant work, or has no past 8 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant 9 retains the capacity to make an adjustment to work that exists in significant levels in the national 10 economy. With the VE’s assistance, the ALJ found plaintiff able to perform other jobs, such as 11 work as a housecleaner, conveyor feeder-offbearer, and laboratory equipment cleaner. 12 This Court’s review of the ALJ’s decision is limited to whether the decision is in 13 accordance with the law and the findings supported by substantial evidence in the record as a
14 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 15 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported 16 by substantial evidence in the administrative record or is based on legal error.”) Substantial 17 evidence means more than a scintilla, but less than a preponderance; it means such relevant 18 evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. 19 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of 20 which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 21 F.3d 947, 954 (9th Cir. 2002). 22 Plaintiff avers error at step two and in relation to medical opinions, symptom and lay 23 testimony, and other evidence. She requests remand for further proceedings. The Commissioner 1 argues the ALJ’s decision has the support of substantial evidence and should be affirmed. 2 Step Two 3 At step two, a claimant must make a threshold showing that her medically determinable
4 impairments significantly limit her ability to perform basic work activities. See Bowen v. Yuckert, 5 482 U.S. 137, 145 (1987); 20 C.F.R. § 404.1520(c). “Basic work activities” refers to “the abilities 6 and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). “An impairment or 7 combination of impairments can be found ‘not severe’ only if the evidence establishes a slight 8 abnormality that has ‘no more than a minimal effect on an individual’s ability to work.’” Smolen 9 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28). 10 “[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.” Id. 11 (citing Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the “combined effect” of 12 an individual’s impairments in considering severity. Id. A diagnosis alone is not sufficient to 13 establish a severe impairment. Instead, a claimant must show her medically determinable
14 impairments are severe. 20 C.F.R. § 404.1521. 15 Plaintiff argues the ALJ erred in concluding her body dysmorphic disorder (BDD) was not 16 a severe impairment. The ALJ stated: “[S]he testified as to her extensive work history despite 17 this impairment.” (AR 18.) The ALJ further stated the record did not reflect any limitations as a 18 result of this and other conditions deemed not severe. 19 Plaintiff testified her BDD symptoms worsened over time, resulting in disruption of her 20 work, increased absences and medical leaves, changes in jobs in attempts to reduce symptoms, and 21 ultimately the loss of her job. (See AR 42-46, 48-56.) The record contains evidence consistent 22 with this testimony, including plaintiff’s reporting, reports from a lay witness and various medical 23 providers, and documentation of leave from her prior employer. (See, e.g., AR 258, 383-84, 675- 1 76, 687-702, 704-05, 826, 828.)3 Given this evidence, the mere fact plaintiff previously worked 2 with this condition does not suffice as a basis to find it non-severe. The ALJ also erred in 3 considering medical opinion and other evidence associated with BDD, as discussed below. The
4 ALJ’s failure to sufficiently address the evidence associated with BDD at step two and beyond 5 necessitates remand for further proceedings. 6 Symptom Testimony 7 The rejection of a claimant’s subjective symptom testimony4 requires the provision of 8 specific, clear, and convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014) 9 (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). See also Lingenfelter v. Astrue, 10 504 F.3d 1028, 1036 (9th Cir. 2007). “General findings are insufficient; rather, the ALJ must 11 identify what testimony is not credible and what evidence undermines the claimant’s complaints.” 12 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). 13 The ALJ found plaintiff’s statements concerning the intensity, persistence, and limiting
14 effects of her symptoms not entirely consistent with the medical and other evidence in the record. 15 He found inconsistency with plaintiff’s activities. (AR 22 (pointing to, inter alia, caring for two 16 dogs, no need for self-care special reminders, meal preparation and housework, driving a car, 17 grocery shopping, visiting with sons and friends, and spending time on iPad and Facebook).) He 18
19 3 Some of this evidence predates the September 2015 alleged onset date. (AR 704-05 (March 14, 2014: “BDD is linked to diminished quality of life; usually includes major depressive disorder & social 20 phobia. [Claimant] has had extensive therapy by psychologists, psychiatrists & social worker. After a battery of tests back in 2006 she was diagnosed with non-delusional [BDD]. [Treatment] included psychotherapy, medication management, cognitive behavioral therapy and exposure therapy. This disorder, 21 per the DSM manual ‘has a fairly continuous course, with few symptom-free intervals, although the intensity of the symptoms may wax and wane over time.”)) However, the evidence is relevant given that 22 the ALJ relied on work history evidence predating the alleged onset date to find this condition non-severe. 4 Effective March 28, 2016, the SSA eliminated the term “credibility” from its policy and clarified 23 the evaluation of subjective symptoms is not an examination of character. SSR 16-3p. The Court continues to cite to relevant case law utilizing the term credibility. 1 also stated that, while plaintiff treated longitudinally for her mental health impairments, she had 2 “mostly normal mental status exams [(MSEs)] throughout the relevant period.” (AR 22 (citing 3 AR 680, 722, 760, 790-91, 798, 802-05, 826).) The ALJ also earlier pointed to evidence plaintiff
4 worked part-time, but below SGA levels during the relevant time period and as of the hearing date 5 (AR 18), and described the medical record, including performance on testing and in MSEs and 6 reports of applying for part-time work, taking steps toward taking classes, volunteering doing yard 7 work, and advertising yard services (AR 21-22). 8 An ALJ properly considers whether the medical evidence supports or is consistent with a 9 claimant’s allegations, 20 C.F.R. § 404.929(c)(4), and may reject symptom testimony upon 10 finding it inconsistent with or contradicted by evidence in the medical record. Carmickle v. 11 Comm’r of SSA, 533 F.3d 1155, 1161 (9th Cir. 2008); Tonapetyan v. Halter, 242 F.3d 1144, 1148 12 (9th Cir. 2001). An ALJ also properly considers inconsistency with activities, Bray v. Comm’r of 13 SSA, 554 F.3d 1219, 1227 (9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007), as
14 well as evidence associated with a claimant’s work, see, e.g., Bray, 554 F.3d at 1221; Smolen, 80 15 F.3d at 1284; and Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). The ALJ in this case 16 did, as such, provide appropriate reasons for not accepting plaintiff’s testimony as to the degree of 17 her impairment. However, the error at step two and the errors described below necessitate 18 reconsideration of plaintiff’s testimony on remand. 19 Medical Opinions and Other Evidence 20 The ALJ is responsible for assessing the medical evidence and resolving any conflicts or 21 ambiguities in the record. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th 22 Cir. 2014); Carmickle, 533 F.3d at 1164. When evidence reasonably supports either confirming 23 or reversing the ALJ’s decision, the court may not substitute its judgment for that of the ALJ. 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 2 In general, more weight should be given to the opinion of a treating doctor than to a non- 3 treating doctor, and more weight to the opinion of an examining doctor than to a non-examining
4 doctor. Lester, 81 F.3d at 830. Where not contradicted by another doctor, a treating or examining 5 doctor’s opinion may be rejected only for “‘clear and convincing’” reasons. Id. (quoted source 6 omitted). Where contradicted, the opinion may not be rejected without “‘specific and legitimate 7 reasons’ supported by substantial evidence in the record for so doing.” Id. at 830-31 (quoted source 8 omitted). Opinions offered by other sources, such as counselors, may be assigned less weight, 9 Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996), and discounted with the provision of germane 10 reasons, Molina, 674 F.3d at 1111 (cited sources omitted). Likewise, the statements of lay 11 witnesses may be discounted with reasons germane to the witness. Smolen, 80 F.3d at 1288-89. 12 Plaintiff argues the ALJ erred in considering and selectively citing to medical evidence and 13 in discounting the opinions of treating doctor Dr. Cassandra Giedt, treating therapist Suzanne
14 Oelke, and consultative examiner Dr. Kathleen Anderson. She avers error in the assignment of 15 great weight to the contradictory opinions of Drs. Jan Lewis and Kent Reade, non-examining State 16 agency psychologists. Plaintiff also maintains error in the consideration of evidence associated 17 with her physical impairments and in the rejection of evidence from a lay witness. 18 A. Dr. Kathleen Anderson 19 The ALJ gave only partial weight to Dr. Anderson’s October 2015 opinion plaintiff would 20 not have difficulty with at least simple, straightforward instructions, may not have problems 21 actually carrying out job responsibilities to the satisfaction of her supervisors, and would have a 22 great deal of discomfort if she had to interact with others for more than short periods. (AR 23, 23 681.) The ALJ found the opinion partially consistent with plaintiff’s medical records. As with the 1 symptom testimony, the ALJ observed that, while plaintiff treated longitudinally for her mental 2 health impairments, she had “mostly normal [MSEs] throughout the relevant period.” (AR 23 3 (citing AR 680, 722, 760, 790-91, 798, 802-05, 826).) He cited to the same records as showing
4 plaintiff had intact memory, was calm, cooperative, pleasant, and friendly, with normal attention 5 and concentration, had good appearance, and was well groomed. (Id.) The ALJ also pointed to 6 Dr. Anderson’s findings on MSE, including the ability to repeat a four-digit number backward; to 7 relate in a cooperative fashion and make good eye contact; her report she likes people, has friends, 8 and goes out five-to-six times a month; her ability to perform “serial 3” subtractions rapidly with 9 one mistake and to spell “world” forward and backward; her report of performing all activities of 10 daily living; and her adequate grooming. (AR 23, 680.) 11 As plaintiff observes, the ALJ did not fully describe or adequately consider the evidence 12 from Dr. Anderson. Dr. Anderson discussed plaintiff’s BDD in detail, including her history with 13 this condition, her symptoms, and its effect on her work. (AR 681.) Dr. Anderson noted, for
14 example, plaintiff’s report she “stopped working as an LPN because she felt her preoccupation 15 with her appearance interfered with her ability to tend to patients[,]” and that, despite a great deal 16 of therapy, insight into her mental health problems, and extensive medication trials, plaintiff 17 reported “leaving her last job in September of this year because of the stress of having to contend 18 with her appearance preoccupations in her work environment.” (Id.) Dr. Anderson opined 19 plaintiff’s reported prior difficulty in working a twelve-hour shift “which was far too long for her 20 to feel comfortable out where she could be looked at by others[,]” would, “[i]f she were to return 21 to work, . . . undoubtedly be an issue over the course of a more normal eight-hour work shift.” 22 (Id.) Dr. Anderson stated, while plaintiff may not have problems actually carrying out job 23 responsibilities satisfactorily, “she would again be in a great deal of turmoil as she has described 1 being at her last job.” (Id.) Dr. Anderson further opined, if plaintiff “were able to adapt to any 2 sort of job at all, it would likely be something like medical transcription from home, as she has 3 done in the past[,]” and, because “she remains significantly symptomatic despite extensive
4 treatment, her prognosis for marked improvement is very guarded.” (AR 681.) 5 The ALJ should consider the entirety of Dr. Anderson’s opinion on remand. The ALJ 6 should also, here and throughout the decision, reassess the evidence of plaintiff’s performance on 7 MSEs, not all of which provides support for the ALJ’s conclusion. (See, e.g., AR 722 (minimizing, 8 perseverative speech, anhedonic mood/affect, limited insight, intrusive thoughts, and intermittent 9 incongruencies in reporting); AR 798 (depressed, anxious mood and anxious affect; “[claimant] 10 has high levels of stress, anxiety, and social phobia, heightened when she is feeling particularly 11 negative about her appearance”); AR 802 (anhedonic mood); and AR 826 (blunted affect, 12 dysphoric, anxious mood).) 13 B. Dr. Cassandra Giedt
14 Dr. Giedt wrote letters dated on April and May 26, 2016, stating plaintiff suffered from 15 disabling BDD and depression and, in the second letter, that she would be unable to work for at 16 least twelve months due to her limitations. (AR 711-12.) In a December 8, 2017 medical source 17 statement, Dr. Giedt opined plaintiff had some limitations in sustained concentration and 18 persistence and moderate to significant limitations in adaptation. (AR 829-31.) She assessed the 19 limitations as lasting at least twelve continuous months and stated: “[Patient] has BDD. Has 20 severe anxiety because of this. Cannot work in an unfamiliar and constantly changing setting.” 21 (AR 830-31.) 22 The ALJ gave little weight to the opinions in the letters, as they were not a function-by- 23 function analysis, failed to consider evidence of Benzodiazepine abuse, and were inconsistent with 1 plaintiff’s work history: “She testified that she overdosed on Benzodiazepines and she had a 2 significant work history despite her [BDD].” (AR 24.) The ALJ also pointed to the examination 3 findings from Dr. Anderson and to the same evidence from other MSEs in the record as cited in
4 the rejection of Dr. Anderson’s opinion. The ALJ similarly gave little weight to Dr. Giedt’s 5 functional assessment, finding it inconsistent with the medical record and again citing to the same 6 evidence from Dr. Anderson and the other MSEs in the record. (AR 24-25.) 7 Plaintiff denies the evidence of a one-time overdose resulting in a hospitalization negates 8 her diagnoses or resulting limitations and states no provider has even inferred the existence of 9 Benzodiazepine abuse. The record does, however, contain other evidence associated with the 10 abuse or misuse of prescription medication. (See, e.g., AR 398, 400 (March 31, 2016: “She took 11 some Percocet of her sister’s last September ‘to feel better.’ She reports stole a whole bottle and 12 it bothers her.”; “She reports that she will occasionally take far more Klonopin that recommended 13 (e.g. 9 at a time instead of 2) or a opiate pain pill to ‘feel better.’ . . . She does not meet criteria for
14 an active substance abuse disorder diagnosis at this time, but continued evaluation is 15 warranted[.]”); AR 761 (November 23, 2016: hospitalization after ingesting Clonopin, Vicodin, 16 and alcohol; “Patient states that she does have a history of overdose 3 to 4 years ago which did not 17 require medical attention.”); and AR 804 (February 2, 2017: “[patient] has been overusing her 18 benzos from [primary care provider] recently.”)) Nor did the ALJ err in observing the letters from 19 Dr. Giedt did not contain functional limitations. See McLeod v. Astrue, 640 F.3d 881, 885 (9th 20 Cir. 2010) (“A treating physician’s evaluation of a patient’s ability to work may be useful or 21 suggestive of useful information, but a treating physician ordinarily does not consult a [VE] or 22 have the expertise of one. An impairment is a purely medical condition. . . . The law reserves the 23 disability determination to the Commissioner. Rejection of the treating physician’s opinion on 1 ability to perform any remunerative work does not by itself trigger a duty to contact the physician 2 for more explanation.”) (quoted and cited sources omitted); 20 C.F.R. § 404.1527(d)(1) (“A 3 statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we
4 will determine that you are disabled.”). 5 The Court does, however, otherwise agree with plaintiff that the opinion evidence from Dr. 6 Giedt should be reconsidered on remand. That is, the ALJ’s errors in relation to BDD and Dr. 7 Anderson implicate the reasoning relied upon for rejecting the opinion of Dr. Giedt. See also supra 8 n. 3 (discussing other relevant evidence from Dr. Giedt (AR 704-05)). The ALJ should also here, 9 as elsewhere, reassess the MSE evidence. 10 C. Suzanne Oelke, LMHCA 11 In a letter dated June 15, 2016, Oelke stated plaintiff was unable to work for at least twelve 12 months due to major depressive disorder, recurrent, and BDD. (AR 827.) In a letter dated October 13 25, 2016, Oelke described plaintiff’s BDD and post-traumatic stress disorder (PTSD) and opined,
14 while she could work part time, “the stress of full time work would produce further 15 symptomology.” (AR 828.) Oelke described plaintiff’s symptoms and stated her PTSD functional 16 limitations “would greatly improve with further psychotherapy.” (Id.) The ALJ provided 17 identical reasons for assigning little weight to this opinion as he did for Dr. Giedt. (AR 24.) The 18 Court finds further consideration of this evidence necessary for the reasons described above. 19 D. Other Opinions and Evidence 20 The ALJ assigned great weight to the opinions of Drs. Lewis and Reade (AR 84-85, 98- 21 99), finding them consistent with the medical record and pointing to the evidence from Dr. 22 Anderson and other MSEs in the record. (AR 23.) Also pointing to the same evidence, as well 23 as a lack of medical training, the ALJ assigned little weight to a third-party function report 1 completed by plaintiff’s friend, finding it inconsistent with the objective medical evidence and 2 medical opinions. (AR 22, 251-58.) The errors described above also necessitate further 3 consideration of these medical opinions and the lay testimony. The ALJ should, in addition,
4 consider a March 9, 2017 letter from Nathan Rhoads, LMHCA. (AR 383.) Finally, while it is not 5 clear the ALJ erred in considering evidence associated with physical impairments (see AR 18), he 6 should take the opportunity on remand to consider all evidence associated with cervical 7 degenerative disc disease and a fractured pelvis (see, e.g., AR 834-35), at step two and beyond. 8 CONCLUSION 9 For the reasons set forth above, this matter is REMANDED for further proceedings. 10 DATED this 30th day of October, 2019.
11 A 12 Mary Alice Theiler 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23