FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON
Nov 10, 2020
SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON
6 ANN W.,1 No. 4:20-CV-5015-EFS 7 Plaintiff, 8 ORDER GRANTING PLAINTIFF’S v. SUMMARY-JUDGMENT MOTION 9 AND DENYING DEFENDANT’S ANDREW M. SAUL, the Commissioner SUMMARY-JUDGMENT MOTION 10 of Social Security,
11 Defendant. 12
13 Before the Court are the parties’ cross summary-judgment motions.2 14 Plaintiff Ann W. appeals the denial of benefits by the Administrative Law Judge 15 (ALJ). She alleges the ALJ erred by 1) improperly weighing the medical opinions, 16 2) discounting Plaintiff’s symptom reports, and 3) improperly determining that 17 Plaintiff did not meet or equal Listing 5.08 or the C Criteria of mental listings. In 18 19
20 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 21 first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 22 2 ECF Nos. 10 & 11. 23 1 contrast, Defendant Commissioner of Social Security asks the Court to affirm the 2 ALJ’s decision finding Plaintiff not disabled. After reviewing the record and 3 relevant authority, the Court grants Plaintiff’s Motion for Summary Judgment, 4 ECF No. 10, and denies the Commissioner’s Motion for Summary Judgment, ECF 5 No. 11. 6 I. Five-Step Disability Determination 7 A five-step sequential evaluation process is used to determine whether an 8 adult claimant is disabled.3 Step one assesses whether the claimant is currently 9 engaged in substantial gainful activity.4 If the claimant is engaged in substantial 10 gainful activity, benefits are denied.5 If not, the disability-evaluation proceeds to 11 step two.6 12 Step two assesses whether the claimant has a medically severe impairment, 13 or combination of impairments, which significantly limits the claimant’s physical 14 15 16 17 18
19 3 20 C.F.R. § 416.920(a). 20 4 Id. § 416.920(a)(4)(i). 21 5 Id. § 404.1520(b). 22 6 Id. 23 1 or mental ability to do basic work activities.7 If the claimant does not, benefits are 2 denied. 8 If the claimant does, the disability-evaluation proceeds to step three.9 3 Step three compares the claimant’s impairments to several recognized by the 4 Commissioner to be so severe as to preclude substantial gainful activity.10 If an 5 impairment meets or equals one of the listed impairments, the claimant is 6 conclusively presumed to be disabled.11 If an impairment does not, the disability- 7 evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work she performed in the past by determining the claimant’s residual 10 functional capacity (RFC).12 If the claimant is able to perform prior work, benefits 11 are denied.13 If the claimant cannot perform prior work, the disability-evaluation 12 proceeds to step five. 13 Step five, the final step, assesses whether the claimant can perform other 14 substantial gainful work—work that exists in significant numbers in the national 15
16 7 20 C.F.R. § 416.920(a)(4)(ii). 17 8 Id. § 416.920(c). 18 9 Id. 19 10 Id. § 416.920(a)(4)(iii). 20 11 Id. § 416.920(d). 21 12 Id. § 416.920(a)(4)(iv). 22 13 Id. 23 1 economy—considering the claimant’s RFC, age, education, and work experience.14 2 If so, benefits are denied. If not, benefits are granted.15 3 The claimant has the initial burden of establishing entitlement to disability 4 benefits under steps one through four.16 At step five, the burden shifts to the 5 Commissioner to show that the claimant is not entitled to benefits.17 6 II. Factual and Procedural Summary 7 Plaintiff filed a Title XVI application, alleging an amended disability onset 8 date of March 17, 2014.18 Her claim was denied initially and upon 9 reconsideration.19 A video administrative hearing was held before Administrative 10 Law Judge Marie Palachuk.20 11 In denying Plaintiff’s disability claim, the ALJ made the following findings: 12 Step one: Plaintiff had not engaged in substantial gainful activity 13 since March 17, 2014, the amended alleged onset date; 14
15 14 20 C.F.R. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 16 1984). 17 15 20 C.F.R. § 416.920(g). 18 16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 17 Id. 20 18 AR 210-15. 21 19 AR 122-27 & 131-37. See also AR 118-21. 22 20 AR 33-70. 23 1 Step two: Plaintiff had the following medically determinable severe 2 impairments: history of seizure disorder, bipolar disorder vs. major 3 depressive disorder, anxiety disorder, and post-traumatic stress 4 disorder (PTSD); 5 Step three: Plaintiff did not have an impairment or combination of 6 impairments that met or medically equaled the severity of one of the 7 listed impairments; 8 RFC: Plaintiff had the RFC to perform light work except that she: 9 is limited to frequent postural movements, and no climb[ing of] ladders, ropes, or scaffolds. She needs to avoid all 10 exposure to hazards. She is able to understand, remember, and carry out simple tasks, as well as complex, detailed 11 tasks. She is able to maintain attention and concentration for 2-hour intervals between regularly scheduled breaks, but 12 she should be in a predictable environment with seldom change. Any interaction with the public or coworkers should 13 be limited to no more than occasional, brief and superficial (i.e. non-collaborative and no teamwork). 14
Step four: Plaintiff had no past relevant work; and 15 Step five: considering Plaintiff’s RFC, age, education, and work 16 history, Plaintiff could perform work that existed in significant 17 numbers in the national economy, such as cleaner/housekeeping, 18 marker/pricer, and cafeteria attendant.21 19 When assessing the medical-opinion evidence, the ALJ gave: 20 21
22 21 AR 12-32. 23 1 significant weight to the reviewing opinions of Patricia Kraft, M.D. 2 and Elizabeth St. Louis, M.D; 3 partial weight to the reviewing opinion of James Haynes, M.D.; and 4 little weight to the treating opinions of Caleb Ledford, ARNP and 5 Billie Kortge, M.A., the evaluating opinions of Rowena Mercado, M.D. 6 and N.K. Marks, Ph.D., and the reviewing opinions of Colette Valette, 7 Ph.D., Eugene Kester, M.D., and Kent Reade, Ph.D.22 8 The ALJ also found that Plaintiff’s medically determinable impairments 9 could reasonably be expected to cause some of the alleged symptoms, but that her 10 statements concerning the intensity, persistence, and limiting effects of those 11 symptoms were not entirely consistent with the medical evidence and other 12 evidence in the record.23 13 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 14 which denied review.24 Plaintiff timely appealed to this Court. 15 III. Standard of Review 16 A district court’s review of the Commissioner’s final decision is limited.25 The 17 Commissioner’s decision is set aside “only if it is not supported by substantial 18
19 22 AR 21-24. 20 23 AR 21. 21 24 AR 1-6. 22 25 42 U.S.C. § 405(g). 23 1 evidence or is based on legal error.”26 Substantial evidence is “more than a mere 2 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion.”27 Moreover, because it is 4 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 5 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 6 from the record.”28 The Court considers the entire record as a whole.29 7 Further, the Court may not reverse an ALJ decision due to a harmless 8 error.30 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 9 10 11 12
13 26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 14 27 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 15 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 29 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 17 consider the entire record as whole, weighing both the evidence that supports and 18 the evidence that detracts from the Commissioner's conclusion,” not simply the 19 evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th 20 Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that such 21 evidence was not considered[.]”). 22 30 Molina, 674 F.3d at 1111. 23 1 nondisability determination.”31 The party appealing the ALJ’s decision generally 2 bears the burden of establishing harm.32 3 IV. Analysis 4 A. Medical Opinions: Plaintiff establishes consequential error. 5 Plaintiff challenges the ALJ’s assignment of little weight to Dr. Marks’ 6 evaluating opinion, Ms. Kortge’s treating opinion, and Mr. Ledford’s treating 7 opinion. The Court agrees the ALJ’s reasons for discounting these medical opinions 8 are either not meaningfully explained with legitimate/germane reasons and/or not 9 supported by substantial evidence. 10 1. Standard 11 The weighing of medical opinions is dependent upon the nature of the 12 medical relationship, i.e., 1) a treating physician, 2) an examining physician who 13 examines but did not treat the claimant, and 3) a reviewing physician who neither 14 treated nor examined the claimant.33 Generally, more weight is given to the 15 opinion of a treating physician than to an examining physician’s opinion and both 16 treating and examining opinions are to be given more weight than the opinion of a 17 reviewing physician.34 18
19 31 Id. at 1115 (quotation and citation omitted). 20 32 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 21 33 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 22 34 Id.; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 23 1 When a treating physician’s or evaluating physician’s opinion is not 2 contradicted by another physician, it may be rejected only for “clear and 3 convincing” reasons, and when it is contradicted, it may be rejected for “specific 4 and legitimate reasons” supported by substantial evidence.35 A reviewing 5 physician’s opinion may be rejected for specific and legitimate reasons supported by 6 substantial evidence, and the opinion of an “other” medical source36 may be 7 rejected for specific and germane reasons supported by substantial evidence.37 The 8 opinion of a reviewing physician serves as substantial evidence if it is supported by 9 other independent evidence in the record.38 10 11 12 13
14 35 Lester, 81 F.3d at 830. 15 36 See 20 C.F.R. § 416.902(a), (i) (For claims filed before March 27, 2017, acceptable 16 medical sources are licensed physicians, licensed or certified psychologists, licensed 17 optometrists, licensed podiatrists, qualified speech-language pathologists, licensed 18 audiologists, licensed advanced practice registered nurses, and licensed physician 19 assistants within their scope of practice—all other medical providers are “other” 20 medical sources.). 21 37 Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 22 38 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 23 1 2. Dr. Marks 2 On December 8, 2017, Dr. N.K. Marks conducted a psychological evaluation 3 of Plaintiff, including reviewing psychological reports from 2013 and 2014.39 Dr. 4 Marks diagnosed Plaintiff with unspecified depressive disorder, unspecified 5 anxiety disorder, unspecified bipolar disorder (rule-out), unspecified trauma- and 6 stressor-related disorder, unspecified personality disorder, and unspecified 7 cannabis-related disorder. Dr. Marks opined that Plaintiff was moderately limited 8 in her abilities to ask simple questions or request assistance, communicate and 9 perform effectively in a work setting, complete a normal work day and work week 10 without interruptions from psychologically based symptoms, set realistic goals and 11 plan independently, and perform activities within a schedule, maintain regular 12 attendance, and be punctual within customary tolerances without special 13 supervision. Dr. Marks opined that Plaintiff would improve with eight months of 14 very directive counseling. 15 The ALJ gave little weight to Dr. Marks’ opinion because 1) it was 16 inconsistent with the objective clinical findings during the examination, 2) it was 17 inconsistent with Plaintiff’s presentation to treating sources, and 3) it reported an 18 inability to work for less than twelve continuous months.40 19 20
21 39 AR 1019-25. 22 40 AR 23-24. 23 1 First, the ALJ’s finding that Dr. Marks’ opinion was inconsistent with the 2 objective findings, i.e., Plaintiff’s mental status examination and presentation as 3 cooperative and well-groomed with good eye contact and intact cognitive 4 functioning, is not, on this record, a meaningfully explained legitimate reason 5 supported by substantial evidence. The ALJ fails to explain how Dr. Marks’ 6 assessed moderate limitations (with the remaining limitations being “none or 7 mild”) were inconsistent with Dr. Marks’ mental status examination, Plaintiff’s 8 presentation, and the reviewed records. Dr. Marks reviewed two psychological 9 reports, which were not part of this administrative record but were very briefly 10 summarized by Dr. Marks. Per Dr. Marks, these reports indicated that Plaintiff 11 suffered from depression and anxiety. Dr. Marks herself observed that Plaintiff 12 was depressed and anxious with constricted affect. The ALJ fails to explain why 13 Dr. Marks’ moderate limitations was inconsistent with Dr. Marks’ observations, 14 review, and examination. For instance, if Dr. Marks had rated Plaintiff’s 15 limitations solely as none/mild, then Dr. Marks would have been essentially 16 finding that Plaintiff’s impairment was not severe.41 Yet, even the ALJ, deemed 17 Plaintiff to suffer from severe psychological impairments (bipolar disorder vs. 18 major depressive disorder; anxiety disorder, and PTSD). And Dr. Kraft, whom 19 issued a reviewing opinion in November 2016 to which the ALJ gave significant 20 weight, opined that Plaintiff was moderately limited in her abilities to maintain 21
22 41 See 20 C.F.R. § 416.920a(d)(1). 23 1 attention and concentration for extended periods, sustain an ordinary routine 2 without special supervision, work in coordination with or in proximity to others 3 without being distracted by them, complete a normal workday and workweek 4 without interruptions from psychologically based symptoms and to perform at a 5 consistent pace without an unreasonable number and length of rest periods, 6 interact appropriately with the general public, accept instructions and respond 7 appropriately to criticism from supervisors, get along with coworkers or peers 8 without distracting them or exhibiting behavioral extremes, respond appropriately 9 to changes in the work setting, and set realistic goals or makes plans 10 independently of others.42 Accordingly, Dr. Kraft’s (accepted) and Dr. Marks’ 11 (discounted) opined moderate limitations were largely similar. Without a more 12 meaningful explanation, that Plaintiff presented as cooperative, well-groomed with 13 good eye contact, and intact cognitive functioning, is not a specific and legitimate 14 reason on this record to discount Dr. Marks’ moderate limitations given the 15 observed depression, anxiety, and limited fund of knowledge, which was consistent 16 with the prior psychological reports.43 17
18 42 AR 113-15. 19 43 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (requiring the ALJ to 20 identify the evidence supporting the found conflict to permit the Court to 21 meaningfully review the ALJ’s finding); Blakes v. Barnhart, 331 F.3d 565, 569 (7th 22 Cir. 2003) (“We require the ALJ to build an accurate and logical bridge from the 23 1 Second, the ALJ discounted Dr. Marks’ opinion because it was not 2 consistent with Plaintiff’s candid presentation to treating sources in which Plaintiff 3 was pleasant and cooperative with normal mood, affect, and behavior.44 Whether a 4 medical opinion is consistent with the longitudinal record is a factor for the ALJ to 5 consider.45 Here, the ALJ cited several medical records: some pertaining to medical 6 visits for physical conditions, a psychological evaluation by Rowena Mercado, M.D, 7 and five therapy treatment notes with Ms. Kortge.46 While relying on physical- 8 treatment records to discount a mental-health opinion may be appropriate on a 9 different record, on this record, in which Plaintiff’s mental instability necessitated 10 a five-day stay at a crisis center and routine counseling for more than four years, 11 the physical-health records are insufficient to constitute substantial evidence to 12 support the ALJ’s finding that Dr. Marks’ moderate limitations were inconsistent 13 14 15 16
17 evidence to her conclusions so that we may afford the claimant meaningful review 18 of the SSA’s ultimate findings.”). 19 44 AR 23-24. 20 45 See Lingenfelter, 504 F.3d at 1042 (recognizing that the ALJ is to consider the 21 consistency of the medical opinion with the record as a whole). 22 46 The ALJ also cited to 9F42; however, 9F only had 23 pages. 23 1 with Plaintiff’s normal mood, affect, and behavior during these physical-health 2 appointments.47 3 As to Dr. Mercado’s cited psychological evaluation,48 interestingly, the ALJ 4 gave little weight to Dr. Mercado’s opinion on the grounds that it was based largely 5 on Plaintiff’s self-reports and Dr. Mercado’s unsubstantiated findings that Plaintiff 6 had “conflicts with others,” “poor sleep with nightmares,” and “poor appetite with 7 weight loss.”49 Dr. Mercado indicated that Plaintiff was depressed with high 8 anxiety, fair insight and judgment, and some memory loss for past events; unable 9 to complete serial 7s, spell world backwards, or follow a three-step command; and 10 was neatly groomed, pleasant, and cooperative with good eye contact, fluent 11 speech, linear thought process, and intact immediate memory.50 The ALJ fails to 12
13 47 The cited physical-health records include an oncology record recognizing that 14 Plaintiff had “some unexplained symptoms such as unexplained weight loss, 15 alternating diarrhea and constipation, and abdominal pain” and observing Plaintiff 16 to have normal mood, affect, behavior, judgment, and thought. AR 887. Two other 17 physical-health appointments related to treatment for an abscess; during these 18 appointments, Plaintiff was observed to be pleasant, well kempt, not in distress, 19 and cooperative with normal mood, affect, and behavior. AR 908 & 940. 20 48 AR 374-76. 21 49 AR 22-23. 22 50 AR 376. 23 1 meaningfully explain how Dr. Mercado’s observations—some normal, some 2 abnormal—are inconsistent with Dr. Marks’ moderate limitations. 3 Finally, the five therapy notes cited by the ALJ are not an accurate 4 reflection of Plaintiff’s waxing of her mental health symptoms as Plaintiff’s 5 symptoms were generally waning at the cited appointments. See, e.g., AR 1172-73 6 (Aug. 2, 2017: “mood and affect were both a bit anxious”); AR 1170-71 (Sept. 17, 7 2017: “encouraged to speak with her medication provider about her often throwing 8 up her medications” and “somewhat dysthymic which in part was due to the recent 9 passing of two friends. Affect was at times tearful.”); AR 1175-76 (Dec. 6, 2017: 10 (“mood was slightly dysthymic and affect anxious as [Plaintiff] is continuing to live 11 on under $200.00 a month); AR 1188-89 (July 11, 2018: “mood and affect were both 12 euthymic”); & AR 1200-01 (May 30, 2018: “mood and affect were both euthymic and 13 calm”). In comparison, there were many therapy notes, along with medication 14 management notes and progress notes, documenting waxing symptoms. See, e.g., 15 AR 622, 628, 624, 550, & 562 (depressed and tearful affect and congruent mood); 16 AR 560 (agitated and irritable); AR 612 (intense mood and affect); AR 590 & 606 17 (mood slightly dysphoric and affect intense); AR 722 (tearful throughout session, 18 dysphoric mood and congruent affect); AR 694 (mood dysphoric with congruent 19 affect); AR 684 (mood dysphoric and affect tearful, and encouraged to think about 20 applying for social security disability); AR 596 & 711 (mood somewhat dysphoric 21 and affect anxious); AR 706 (dysphoric and affect discouraged and anxious); AR 592 22 & 678 (dysphoric mood and tearful affect); AR 569 (mood dysphoric and affect 23 1 anxious and somewhat irritable); AR 583 (affect and mood anxious/depressed with 2 restricted range); & AR 577 (cried through most of appointment). When the 3 therapy notes, along with progress and medical management notes, are 4 cumulatively viewed, they do not provide substantial evidence to support the ALJ’s 5 finding that Dr. Marks’ opinion was inconsistent with Plaintiff’s normal mood, 6 affect, and behavior on several occasions. 7 But Dr. Marks also opined that Plaintiff’s mental health impairments would 8 sufficiently improve after eight months of very directive counseling.51 Temporary 9 severe limitations—those less than twelve months—are not enough to meet the 10 durational requirement for a finding of disability.52 Consistent with Dr. Marks’ 11 speculation that Plaintiff’s mental health may improve by August 2018 (eight 12 months after the examination), the record reflects that Plaintiff’s symptoms, 13 including her mood and affect, began to steadily wane, possibly due to continued 14 therapy and significant medication changes. Nonetheless, as discussed above the 15 medical record reflects that before Dr. Marks’ December 2017 opinion Plaintiff’s 16
17 51 AR 1023. 18 52 20 C.F.R. § 416.909 (requiring a claimant’s impairment to be expected to last for 19 a continuous period of not less than twelve months); 42 U.S.C. § 423(d)(1)(A) 20 (same); see Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 21 2008) (affirming the ALJ’s finding that treating physicians’ short-term excuse from 22 work was not indicative of “claimant’s long-term functioning”). 23 1 mental health waxed and waned since the alleged onset date of March 17, 2014, 2 including a multi-day stay at a crisis center. Therefore, on this record, that Dr. 3 Marks’ opined that Plaintiff’s mental health symptoms would improve with eight 4 months of therapy is not a legitimate reason supported by substantial evidence to 5 discount Dr. Marks’ moderate limitations without a more meaningful explanation. 6 3. Ms. Kortge 7 Ms. Kortge held therapy sessions generally once or twice a month from 8 March 2014 to November 2018.53 In March 2017, Ms. Kortge completed a Mental 9 Source Statement for social-security purposes.54 She opined that Plaintiff was: 10 mildly limited in her abilities to carry out very short simple 11 instructions, ask simple questions or request assistance, maintain 12 socially appropriate behavior and adhere to basic standards of 13 neatness and cleanliness; 14 moderately limited in her abilities to understand and remember very 15 short and simple instructions, sustain an ordinary routine without 16 special supervision, make simple work-related decisions, interact 17 appropriately with the general public, be aware of normal hazards 18
19 53 See, e.g., AR 638-39, 548-49, 556-57, 575-76, 590-603, 610-19, 647-48, 658-59, 20 667-68, 678-79, 684-85, 688-89, 690-91, 694-95, 700-12, 720-24, 1156-95, 1208-11, & 21 1214-34. 22 54 AR 1254-57. 23 1 and take appropriate precautions, travel in unfamiliar places or use 2 public transportation; and 3 markedly limited in her abilities to remember locations and work-like 4 procedures, understand and remember detailed instructions, carry 5 out detailed instructions, maintain attention and concentration for 6 extended periods, perform activities within a schedule, maintain 7 regular attendance, and be punctual within customary tolerances, 8 work in coordination with or proximity to others without being 9 distracted by them, complete a normal workday and workweek 10 without interruptions from psychologically based symptoms and 11 perform at a consistent pace without an unreasonable number and 12 length of rest periods, accept instructions and respond appropriately 13 to criticism from supervisors, get along with coworkers or peers 14 without distracting them or exhibiting behavioral extremes, respond 15 appropriately to changes in the work setting, and set realistic goals or 16 make plans independently of others. 17 As to the B Criteria of mental listings, Ms. Kortge opined that Plaintiff was 18 markedly limited in her ability to understand, remember, or apply information and 19 moderately limited in her abilities to interact with others, concentrate, persist, or 20 maintain pace, and adapt or manage herself. Ms. Kortge opined that Plaintiff met 21 the C Criteria of mental listings as she had a medically documented history of a 22 mental disorder for at least two years and ongoing medical treatment, mental 23 1 health therapy, or psychological support had diminished the symptoms and signs 2 but with only marginal adjustment in Plaintiff’s capacity to adapt to changes in her 3 environment or to demands that were not part of her daily life. Ms. Kortge opined 4 that Plaintiff would be off-task more than thirty percent of the workweek and she 5 would miss four or more days per month. 6 The ALJ gave little weight to Ms. Kortge’s non-acceptable medical-source 7 opinion on the grounds that her check-box opinion was not consistent with either 8 the treatment notes or Dr. Kraft’s opinion. Ms. Kortge, as a therapist, was an 9 “other” (or non-acceptable) medical source.55 The ALJ was to consider Ms. Kortge’s 10 opinion when assessing the severity of Plaintiff’s impairments and how they 11 affected her ability to work, and then offer specific and germane reasons for 12 discounting the opinion.56 13 First, as to the ALJ’s finding that Ms. Kortge’s check-box opinion was 14 inconsistent with the treatment notes, the ALJ did not offer meaningful analysis to 15 support this bare-bones decision, but rather cited to the same medical records for 16 which she discounted Dr. Marks’ opinion, i.e., some medical visits for physical 17 conditions, Dr. Mercado’s psychological evaluation, and five of Ms. Kortge’s therapy 18 notes. As discussed above, these records do not serve as substantial evidence to 19
20 55 See 20 C.F.R. § 416.902(a), (i). 21 56 Molina, 674 F.3d at 1111 (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 22 1224 (9th Cir. 2010)); 20 C.F.R. § 416.913(a)(3) & (4). 23 1 support the ALJ’s finding that Ms. Kortge’s opinion was inconsistent with her 2 treatment notes or other medical records, as the longitudinal mental-health record 3 includes several years of therapy records and a five-day stay at a crisis unit in 4 December 2016, reflecting that Plaintiff’s mental health waxed and waned.57 5 Finally, the ALJ discounted Ms. Kortge’s opinion because it was inconsistent 6 with Dr. Kraft’s opinion, to which the ALJ gave significant weight on the grounds 7 that it was consistent with Plaintiff’s presentation with treating sources, the 8 objective findings in the record, and Dr. Kraft’s specialized expertise in Social 9 Security disability regulations and programs. Dr. Kraft opined that Plaintiff’s 10 activities of daily living were mildly restricted and her ability to maintain social 11 functioning, concentration, persistence, or pace were moderately limited. Dr. Kraft 12 opined that, although Plaintiff’s concentration, persistence, and pace would vary, 13 she would still be able to complete a normal workweek so long as she had 14 superficial contact with the public and coworkers and had only simple variations in 15 routine. While an ALJ may consider “the amount of understanding [that a medical 16 source has] of our disability programs and their evidentiary requirements,”58 Dr. 17 Kraft reviewed the medical record in November 2016, before Plaintiff was admitted 18
19 57 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) 20 (recognizing that a check-box opinion may not be rejected if it is consistent with 21 treatment notes); Garrison, 759 F.3d at 1014. 22 58 20 C.F.R. § 416.927(c)(6). 23 1 to Transitions at Lourdes in December 2016 due to a mental health crisis and 2 before subsequent therapy, progress notes, and medication management notes, 3 which continued to reflect waxing and waning of Plaintiff’s mental health 4 symptoms until the summer of 2018 when Plaintiff’s mental and physical 5 symptoms appear to stabilize due to medication changes and continued therapy.59 6 On this record, that Dr. Kraft’s opinion was inconsistent with Ms. Kortge’s opinion 7 is not a germane reason supported either by substantial evidence or meaningful 8 explanation to discount Ms. Kortge’s opinion. 9 The ALJ failed to provide specific and germane reasons supported by 10 substantial evidence as to why she discounted Ms. Kortge’s opinion and/or failed to 11 meaningfully explain how the RFC adequately addressed Plaintiff’s record- 12 supported limitations. 13 4. ARNP Ledford 14 Beginning in September 2016, Nurse Caleb Ledford treated Plaintiff. In 15 March 2017, Mr. Ledford completed a social-security medical report, indicating 16 that he diagnosed Plaintiff with non-intractable cyclical vomiting with nausea, 17 protein calorie malnutrition, and bipolar disorder.60 He opined that Plaintiff’s 18 prognosis was poor and that work on a regular and continuous basis would cause 19 her condition to deteriorate because increased stress led to more vomiting and 20
21 59 AR 109-15. 22 60 AR 1017-18. 23 1 weight loss, and that she would miss four or more days per month because she was 2 generally symptomatic several days a month. 3 The ALJ gave little weight to Mr. Ledford’s opinion because 1) it was a non- 4 acceptable medical source opinion, 2) it was inconsistent with the findings and 5 opinion of Dr. Haynes (the medical expert), and 3) it was supported by few objective 6 findings and was speculative.61 7 Mr. Ledford, as a nurse, was a non-acceptable or “other” medical source.62 8 The ALJ was to consider this “other” medical opinion when assessing the severity 9 of Plaintiff’s impairments and how they affect her ability to work, and then, if 10 discounting the opinion, offer specific, germane reasons supported by substantial 11 evidence for discounting the opinion.63 The Court finds the reasons offered are 12 either not specific, germane, or supported by substantial evidence. 13 First, the ALJ discounted Mr. Ledford’s opinion because it was not 14 consistent with Dr. Haynes’ findings and opinion issued after reviewing all of the 15 evidence in the record. An ALJ may give more weight to an opinion that is based on 16
17 61 AR 23. 18 62 See 20 C.F.R. § 416.902(a)(8) (including licensed physician's assistant as 19 acceptable medical source for impairments within his licensed scope of practice 20 “only with respect to claims filed . . . on or after March 27, 2017”). 21 63 Molina, 674 F.3d at 1111 (quoting Turner, 613 F.3d at 1224); 20 C.F.R. § 22 416.913(a)(3) & (4). 23 1 more relevant record review and supporting evidence.64 Here, interestingly, the 2 ALJ only gave partial weight to Dr. Haynes’ opinion that Plaintiff did not have any 3 resulting physical limitations or restrictions, because the ALJ determined that 4 some exertional and non-exertional limitations were necessary to reasonably 5 accommodate Plaintiff’s history of seizure episodes.65 Moreover, Dr. Haynes 6 testified that he did not consider Plaintiff’s weight loss and any gastrointestinal 7 issues and he did not testify in regard to Plaintiff’s vomiting and mental health 8 conditions.66 In comparison, the basis for Mr. Ledford’s opinion that Plaintiff was 9 limited by fatigue, malaise, mood swings, vomiting, and weight loss was that 10 Plaintiff suffered side effects from her medications and her mental-health 11 symptoms deteriorated with increased stress. Accordingly, the ALJ erred by not 12 offering a more meaningful explanation as to why Dr. Haynes’ testimony and 13 opinion, which were not based on the conditions and symptoms considered by Mr. 14 Ledford, are a germane reason for discounting Mr. Ledford’s opinion. 15 Finally, the ALJ discounted Mr. Ledford’s opinion because it was speculative 16 and unsupported by objective findings. An ALJ may discount a medical opinion if it 17 18 19
20 64 See Lingenfelter, 504 F.3d at 1042. 21 65 AR 21-22. 22 66 AR 41. 23 1 is conclusory or inadequately supported.67 But if treatment notes are consistent 2 with the opinion, a conclusory opinion may not automatically be rejected.68Here, 3 the ALJ found that Mr. Ledford provided “few objective findings to support the 4 degree of limitation opined (i.e. a blanket statement that a regular work schedule 5 would increase vomiting and weight loss does not explain why that would be the 6 case),” and that Mr. Ledford’s assessment that Plaintiff’s limitations began in 2012 7 was not supported because he did not begin treating Plaintiff until September 8 2016.69 At the initial office visit in September 2016, Plaintiff informed Mr. Ledford 9 that she had struggled with weight loss, diarrhea, and nausea with vomiting for 3- 10 4 years—a statement which is consistent with her reported symptoms in prior 11 medical records.70 In the September 2016 treatment note, Mr. Ledford noted that 12 Plaintiff was underweight.71 Mr. Ledford made similar findings in the treatment 13 note two weeks later.72 Mr. Ledford ordered a variety of objective tests and imaging 14
15 67 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Crane 16 v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). 17 68 Batson, 359 F.3d at 1195; Garrison, 759 F.3d at 1014. 18 69 AR 23. 19 70 AR 799-806; see also AR 1038 (recognizing that Plaintiff gained weight when on 20 Seroquel and then lost weight when off Seroquel). 21 71 AR 803. 22 72 AR 807-13. 23 1 to assess the cause of Plaintiff’s nausea, weight loss and vomiting; the tests results 2 were largely normal.73 Then in December 2016, Plaintiff was admitted to Lourdes’ 3 Transitions Unit for five days due to mental instability.74 Following her release, 4 Defendant continued to be below her target weight of 110-15 pounds.75 Based on 5 this record, the ALJ’s finding, that Mr. Ledford’s opinion (that Plaintiff’s symptoms 6 were exacerbated by her mental health conditions) is not supported by sufficient 7 objective findings, is not based on substantial evidence or meaningful analysis. 8 5. Harmful Error 9 The ALJ’s cumulative errors when weighing Dr. Marks’, Ms. Kortge’s, and 10 Mr. Ledford’s opinions are consequential. The vocational expert testified that an 11 individual who does not perform her job ten percent or more of the day will not be 12 retained.76 Each of these medical providers opined that Plaintiff was unable to 13 sustain fulltime employment. While the ALJ may determine that an RFC 14
15 73 AR 814, 821, & 866-77. 16 74 AR 1027, 1121, & 1225. 17 75 See, e.g., AR 1065 (July 2017: 98 pounds) & AR 1053 (March 2018: 97 pounds). 18 The medical records from TriCities Community Health include a Vital Signs chart, 19 which lists that on at least six occasions Plaintiff’s body mass index (BMI) was 20 17.37 or below. See, e.g., AR 1057. However, it is unclear on what days these BMI 21 readings were taken. 22 76 AR 67. 23 1 sufficiently incorporates the aspects of these opinions which were supported by and 2 consistent with the medical evidence, the ALJ did not so find and did not offer any 3 analysis in this regard for the Court to meaningfully review. 4 B. Plaintiff’s Symptom Reports: The ALJ is to reconsider on remand. 5 Plaintiff argues the ALJ failed to provide valid reasons for rejecting her 6 symptom reports. Here, the ALJ found Plaintiff’s statements concerning the 7 intensity, persistence, and limiting effects of her symptoms inconsistent with the 8 objective medical evidence, her activities, and her work history.77 9 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 10 limitations relies heavily on the ALJ’s assessment of the medical evidence. Having 11 determined a remand is necessary to readdress the medical source opinions, any 12 reevaluation must necessarily reassess Plaintiff’s subjective symptom claims. As to 13 Plaintiff’s social interactions with family, friends, and boyfriend, the ALJ must 14 more meaningfully explain how such interactions are inconsistent with Plaintiff’s 15 reported anxiety and PTSD experienced when she is in large group settings. On 16 remand, the ALJ must carefully reevaluate Plaintiff’s symptom claims in the 17 context of the entire record.78 18
19 77 AR 21. 20 78 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the 21 case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative 22 ground for remand.”). 23 1 C. Step Three (Listings): The ALJ is to reconsider on remand. 2 Plaintiff argues the ALJ erred by 1) finding that Plaintiff’s low body mass 3 index (BMI) did not meet or equal Listing 5.08 and 2) failing to properly evaluate 4 whether Plaintiff met the C Criteria of the mental listings. Because this matter is 5 being remanded for the ALJ’s failure to adequately weigh the medical evidence, on 6 remand the ALJ is to reconsider Plaintiff’s step-three listing arguments. 7 D. Remand for Further Proceedings 8 Plaintiff submits a remand for payment of benefits is warranted. The 9 decision whether to remand a case for additional evidence, or simply to award 10 benefits is within the discretion of the court.79 If the court reverses an ALJ’s 11 decision for error, the court “ordinarily must remand to the agency for further 12 proceedings” unless the record reflects that no further proceedings are necessary 13 because there is no serious doubt that the claimant is disabled.80 14 The Court finds further proceedings are necessary to resolve the conflicting 15 medical and psychological opinions. There is serious doubt as to the cause and 16
17 79 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 18 761 F.2d 530 (9th Cir. 1985)). 19 80 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Treichler v. Comm’r of 20 Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014); Benecke v. Barnhart, 379 21 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is 22 to remand to the agency for additional investigation or explanation.”). 23 1 extent of Plaintiff’s symptoms. For instance, was Plaintiff’s nausea and vomiting 2 caused by medications and/or her psychological conditions, and were/are her 3 symptoms so limiting that she was/is unable to sustain fulltime work even if 4 exertional and nonexertional limitations are crafted in the RFC? Resolution of the 5 conflicts between the medical and psychological opinions requires further record 6 development through either a consultative examination and/or additional expert 7 testimony about whether Plaintiff’s nausea, vomiting, and weight loss were caused 8 by her medications or psychological conditions. If a consultative examination is 9 ordered, the consultative examiner is to be given sufficient medical records to allow 10 for a longitudinal perspective and the examiner is to either append the reviewed 11 records to the report or clearly identify the reviewed records. In addition, the ALJ 12 may consider seeking clarity as to the extent and scope of Plaintiff’s nausea and 13 vomiting, i.e., was it limited to a certain time period after taking her medication 14 and/or was it alleviated if she took food/beverage with her medication. The ALJ is 15 to then reweigh the medical opinions and Plaintiff’s symptom claims and begin the 16 disability evaluation anew. 17 E. Conclusion 18 Accordingly, IT IS HEREBY ORDERED: 19 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is 20 GRANTED. 21 2. The Commissioner’s Motion for Summary Judgment, ECF No. 11, is 22 DENIED. 23 1 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 2 REVERSING and REMANDING the matter to the Commissioner of 3 Social Security for further proceedings consistent with this 4 recommendation pursuant to sentence four of 42 U.S.C. § 405(g). 5 4. The case shall be CLOSED. 6 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and 7 provide copies to all counsel. 8 DATED this 10th day of November 2020. 9
s/Edward F. Shea _____________ 10 EDWARD F. SHEA Senior United States District Judge 11 12 13 14 15
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