Rosser-Melin v. Colvin, No. 1:2015cv03108 - Document 20 (E.D. Wash. 2016)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT granting in part ECF No. 14 Motion for Summary Judgment and denying ECF No. 18 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF WASHINGTON 12 13 14 PAMELA ROSSER-MELIN, Plaintiff, 15 16 17 18 19 v. No. 1:15-CV-03108-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 20 21 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 22 No. 14, 18. Attorney D. James Tree represents Pamela Rosser-Melin (Plaintiff); 23 Special Assistant United States Attorney Richard M. Rodriguez represents the 24 Commissioner of Social Security (Defendant). The parties have consented to 25 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 26 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 27 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 28 Judgment; and REMANDS the matter to the Commissioner for additional ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 proceedings pursuant to 42 U.S.C. § 405(g). 2 JURISDICTION 3 Plaintiff filed applications for Supplemental Security Income (SSI) and 4 Disability Insurance Benefits (DIB) on October 31, 2011, alleging disability since 5 September 15, 2011, due to diabetes, asthma, emotional problems, diverticulitis, 6 and a left knee injury. Tr. 186-196, 213. The applications were denied initially 7 and upon reconsideration. Tr. 108-114, 120-124. Administrative Law Judge 8 (ALJ) Dan R. Hyatt held a hearing on July 25, 2013, at which Plaintiff, represented 9 by counsel, and vocational expert, Richard Hincks, testified. Tr. 36-67. The ALJ 10 issued an unfavorable decision on October 25, 2013. Tr. 17-31. The Appeals 11 Council denied review on April 27, 2015. Tr. 1-4. The ALJ’s October 25, 2013, 12 decision became the final decision of the Commissioner, which is appealable to the 13 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 14 review on June 29, 2015. ECF No. 1, 3. 15 STATEMENT OF FACTS 16 The facts of the case are set forth in the administrative hearing transcript, the 17 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 18 here. 19 Plaintiff was 47 years old at the alleged date of onset. Tr. 186. Plaintiff did 20 not complete her high school education, with the last grade complete being the 21 eighth or ninth grade. Tr. 214, 388. She last worked in 2009 as a home healthcare 22 provider. Tr. 213-214. Plaintiff reported that she stopped working in 2009 23 because her employer moved away, but that her conditions became severe enough 24 to keep her from working as of September 15, 2011. Tr. 213. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 2 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 3 not supported by substantial evidence or if it is based on legal error. Tackett v. 4 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 5 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 6 another way, substantial evidence is such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion. Richardson v. Perales, 402 8 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 9 interpretation, the court may not substitute its judgment for that of the ALJ. 10 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 11 evidence will be set aside if the proper legal standards were not applied in 12 weighing the evidence and making the decision. Brawner v. Secretary of Health 13 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 14 supports the administrative findings, or if conflicting evidence supports a finding 15 of either disability or non-disability, the ALJ’s determination is conclusive. 16 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 21 through four, the burden of proof rests upon the claimant to establish a prima facie 22 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 23 burden is met once a claimant establishes that physical or mental impairments 24 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 25 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do her past relevant work, the 26 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 27 (1) the claimant can make an adjustment to other work, and (2) specific jobs exist 28 in the national economy which the claimant can perform. Batson v. Comm’r of ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot make 2 an adjustment to other work in the national economy, a finding of “disabled” is 3 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 5 6 7 8 ADMINISTRATIVE DECISION On October 25, 2013, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since September 15, 2011, the alleged date of onset. Tr. 19. 9 At step two, the ALJ determined Plaintiff had the following severe 10 impairments: obesity, gastroesophageal reflux disease (GERD), anxiety, bipolar 11 disorder, ulcers, and a hernia. Tr. 19. 12 At step three, the ALJ found Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled the severity of one of 14 the listed impairments. Tr. 21. 15 At step four, the ALJ assessed Plaintiff’s residual function capacity and 16 determined she could perform sedentary work, “except she is limited to performing 17 work that involves no public contact and no more than occasional interaction with 18 coworkers.” Tr. 22. The ALJ identified her past relevant work as home health 19 aide and nurse’s assistant. Tr. 29. The ALJ determined that Plaintiff was not able 20 to perform this past relevant work. Id. 21 At step five, the ALJ determined that, considering Plaintiff’s age, education, 22 work experience and residual functional capacity, and based on the testimony of 23 the vocational expert, there were other jobs that exist in significant numbers in the 24 national economy Plaintiff could perform, including the jobs of electronics worker, 25 electronics assembler, and production assembler. Tr. 29-30. The ALJ concluded 26 Plaintiff was not under a disability within the meaning of the Social Security Act at 27 any time from the alleged date of onset, September 15, 2011, through the date of 28 the ALJ’s decision, October 25, 2013. Tr. 30. ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 ISSUES The question presented is whether substantial evidence supports the ALJ’s 2 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred by (1) failing to make a proper step 5 two determination; (2) failing to properly weigh and consider Plaintiff’s testimony; 6 and (3) failing to properly weigh medical source statements. 7 8 DISCUSSION A. Step Two 9 Plaintiff asserts that the ALJ erred by not finding Plaintiff’s asthma/chronic 10 obstructive pulmonary disease (COPD) and knee impairment as severe. ECF No. 11 14 at 4-8. 12 The step-two analysis is “a de minimis screening device used to dispose of 13 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 14 impairment is “not severe” if it does not “significantly limit” the ability to conduct 15 “basic work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work 16 activities are “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 17 404.1521(b), 416.921(b). “An impairment or combination of impairments can be 18 found not severe only if the evidence establishes a slight abnormality that has no 19 more than a minimal effect on an individual’s ability to work.” Smolen v. Chater, 20 80 F.3d 1273, 1279 (9th Cir. 1996) (internal quotation marks omitted). A 21 claimant’s own statement of symptoms alone will not suffice. See 20 C.F.R. §§ 22 404.1508, 416.908. 23 1. Asthma/COPD 24 The ALJ found that Plaintiff’s breathing impairment was non-severe, stating 25 “[a]lthough the claimant has been diagnosed with asthma, it is controlled with 26 inhalers and she continues to smoke marijuana.” Tr. 20. 27 Plaintiff had been diagnosed with asthma and COPD. Tr. 459. On 28 September 15, 2011, a Spirometry showed FEV1 of 1.1 L pre-bronchodilator, or ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 41% of predicted, and a FEV1 of 1.8 L post-bronchodilator, or 67% of predicted.1 2 Tr. 527. On February 16, 2012, a Spirometry showed FEV1 of 1.4 L pre- 3 bronchodilator, of 54% of predicted, and a FEV1 of 1.9 post-bronchodilator, or 4 73% of predicted. Tr. 528. A listing 3.02 level impairment for a person of 5 Plaintiff’s height is a FEV1 of 1.15 L. 6 Plaintiff argues that her impairment meets listing 3.02 or 3.03. ECF No. 14 7 at 5-6. Plaintiff’s asthma/COPD does not meet listing 3.02 with the Spirometry 8 reports,2 and the record does not show that Plaintiff had asthma attacks that 9 required physician intervention at the rate of every two months or at least six times 10 a year under listing 3.03. However, just because Plaintiff’s impairment does not 11 meet a listing, does not mean that it is not severe. 12 Therefore, the ALJ’s determination that Plaintiff’s asthma/COPD is non- 13 severe is not supported by the record. Defendant argues that any error from the 14 step two determination is harmless error because the ALJ considered all Plaintiff’s 15 impairments, both severe and non-severe, in forming the residual functional 16 capacity determination. ECF No. 18 at 9. However, since the case is being 17 remanded for a new credibility determination, see below, that ALJ is instructed to 18 readdress Plaintiff’s asthma/COPD at steps two through five. 19 1 20 21 22 23 24 25 26 ventilation. The FEV1 score represents the volume of air that can be exhaled by a patient with maximum effort during the first second. 1 DAVID A. MORTON, III, M.D., SOCIAL SECURITY DISABILITY MEDICAL TESTS 203-204 (1st ed. 2015). The FEV1 is one of the Spirometry scores relied upon when determining if a claimant meets or equals Listing 3.02, Chronic pulmonary insufficiency and Listing 3.03, Asthma. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. 2 27 28 A Spirometry is an objective breathing test used to evaluate pulmonary The FEV1 score of 1.15 L must be on the post-bronchodilator portion of the test. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 3.00(E). ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 2. Left Knee 2 The ALJ determined that Plaintiff’s left knee impairment was non-severe 3 based on a longitudinal record, including a normal MRI in October 2011, a normal 4 range of motion and referral to physical therapy in December 2011, a discharge 5 from physical therapy for a failure to attend, and a diagnostic arthroscopy in March 6 2013. Tr. 20. Here, unlike with the asthma/COPD, the ALJ discussed the medical 7 evidence and provided some rationale for finding the left knee impairment non- 8 severe. However, since the case is being remanded for a new credibility 9 determination, the ALJ is further instructed to reconsider Plaintiff’s left knee 10 impairment at step two. 11 B. 12 13 Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 14 at 8-14. 14 It is generally the province of the ALJ to make credibility determinations, 15 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 16 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 17 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 18 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 19 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are 20 insufficient: rather the ALJ must identify what testimony is not credible and what 21 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 22 The ALJ found Plaintiff less than fully credible concerning the intensity, 23 persistence, and limiting effects of her symptoms. Tr. 23. The ALJ reasoned that 24 Plaintiff was less than fully credible because (1) Plaintiff’s medical treatment did 25 not support her allegations of disability, and (2) the gap in Plaintiff’s treatment 26 combined with “her apparent disinterest in obtaining refill or alternative 27 medications is strong persuasive evidence that her impairments are not particularly 28 limiting.” Tr. 23-25. ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 1. 2 The ALJ’s first reason for finding Plaintiff less than fully credible, that 3 Plaintiff’s symptoms are not supported by medical evidence, is not a specific, 4 clear, and convincing reason to undermine Plaintiff’s credibility. 5 Contrary to the medical evidence Although it cannot serve as the sole ground for rejecting a claimant’s 6 credibility, objective medical evidence is a “relevant factor in determining the 7 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 8 F.3d 853, 857 (9th Cir. 2001). 9 In his decision, the ALJ gave a very general summary of Plaintiff’s 10 testimony, stated that the treatment records did not support Plaintiff’s allegations 11 of disability, and then proceeded to summarize the treatment notes. Tr. 23, 25. 12 The ALJ failed to discuss specify what testimony was not credible and what 13 evidence undermined the claimant’s complaints as required by Lester. Therefore, 14 this reason did not fulfill the specific, clear and convincing standard and is in error. 15 2. Lack of treatment 16 The ALJ’s second reason for finding Plaintiff less than fully credible, that 17 the gap in Plaintiff’s treatment combined with “her apparent disinterest in 18 obtaining refill or alternative medications is strong persuasive evidence that her 19 impairments are not particularly limiting,” is not a specific, clear and convincing 20 reason. 21 In assessing a claimant’s credibility, an ALJ can rely upon “‘unexplained or 22 inadequately explained failure to seek treatment or to follow a prescribed course of 23 treatment.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting 24 Smolen, 80 F.3d at 1284); see Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (an 25 “unexplained, or inadequately explained, failure to seek treatment may be the basis 26 for an adverse credibility finding unless one of a ‘number of good reasons for not 27 doing so’ applies”). A claimant’s statements may be deemed less credible “if the 28 level or frequency of treatment is inconsistent with the level of complaints, or if the ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 medical reports or records show that the individual is not following the treatment 2 as prescribed and there are no good reasons for this failure.” S.S.R. 96-7p. 3 However, a claimant’s failure to follow a course of treatment may be 4 excused if the claimant cannot afford the treatment. Gamble v. Chater, 68 F.3d 5 319, 321-322 (9th Cir. 1995) ("Disability benefits may not be denied because of 6 the claimant’s failure to obtain treatment he cannot obtain for lack of funds." The 7 Ninth Circuit held that, "[i]t flies in the face of the patent purposes of the Social 8 Security Act to deny benefits to someone because he is too poor to obtain medical 9 treatment that may help him." (citation omitted)). 10 To support his finding, the ALJ referenced the January 16, 2013, clinic note 11 by Rebecca Nelson, ARNP. Tr. 24. In the clinic note, Nurse Nelson commented 12 that Plaintiff was last seen on October 30, 2012, and further stated the following: 13 14 15 16 17 She has been out of albuterol for nebulizer use for over a month and has not felt like coming outside to go to the clinic to address these issues. She has also been out of omeprazole for a while because her insurance has been refusing to fill it without prior authorization. When she stopped taking it, she noticed an increase in gastric symptoms but has not taken anything over the counter for that. 18 Tr. 460. The treatment gap the ALJ highlights is less than three months, October 19 30, 2012, to January 16, 2013. The ALJ states that Plaintiff had gone without her 20 medications for “multiple months.” Tr. 24. This is inaccurate. Plaintiff had been 21 without her nebulizer for over a month, not multiple months, and she had been 22 without her omeprazole for “a while” due to problems with her insurance. Tr. 460. 23 At the hearing, Plaintiff testified to difficulties affording aspirin. Tr. 49. If 24 Plaintiff was unable to afford the over the counter aspirin, she could not afford 25 over the counter GERD medication. As for the lack of motivation to refill her 26 albuterol medication, the ALJ recognized Plaintiff’s anxiety and bipolar disorder as 27 severe impairments, and Plaintiff testified to not leaving her house when faced 28 with stressful situations. Tr. 19, 56-57. ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 Here, the ALJ failed to consider if Plaintiff’s reason for lack of treatment or 2 failure to refill medications were for good reasons. Therefore, the ALJ errored in 3 his conclusion that Plaintiff’s treatment gap and failure to fulfill prescriptions 4 supported the conclusion that Plaintiff was less than fully credible. 5 Defendant asserts that the ALJ also found Plaintiff less than fully credible 6 due to evidence of secondary gain. ECF No. 18 at 15-16. In the decision, the ALJ 7 did note that Plaintiff admitted to stalling her divorce so that she could receive her 8 spouse’s Social Security after they were married for ten years. Tr. 25. However, 9 the ALJ did not cite this as a reason for rejecting Plaintiff’s testimony. Even if the 10 ALJ had, it would not have qualified as a specific, clear and convincing reason. 11 First, the only way to qualify for divorced spousal benefits is to be married to the 12 ex-spouse for at least ten years. 20 C.F.R. § 404.331(a)(2). Therefore, waiting out 13 the ten years is common advice given to spouses contemplating divorce in a 14 marriage that has lasted less than ten years.3 Second, the mere suggestion of 15 secondary gain is a weak reason to reject a Plaintiff’s credibility. Burrell v. Colvin, 16 775 F.3d 1133, 1139-1140 (9th Cir. 2014). Here, the ALJ did not determine that 17 Plaintiff’s comment exhibited secondary gain, nor did he determine it 18 compromised her credibility. Tr. 25. Therefore, this reason argued by Defendant 19 falls short of the specific, clear and convincing standard. 20 21 The ALJ failed to provide legally sufficient reasons to reject Plaintiff’s credibility. Therefore, the case is to be remanded for the ALJ to readdress 22 23 3 See, e.g., Trish Hodny, Divorce and “Spousal” Social Security Benefits, 20 24 J. Contemp. Legal Issues 87 (2012) (asserting that “the family lawyer’s 25 responsibility to his or her client extends beyond the matters immediately at hand-- 26 the distribution of property, child custody and support, spousal support--to matters 27 like social security that typically will not take effect until many years after the 28 divorce”). ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 Plaintiff’s credibility. 2 C. 3 Evaluation of Medical Evidence Plaintiff argues the ALJ failed to properly consider and weigh the medical 4 opinions expressed by Jan Kouzes, Ed.D., Kari Heistand, M.D., Mona Morgan, 5 LMHC, and Jessica Web, ARNP. ECF No. 14 at 14-20. 6 In weighing medical source opinions, the ALJ should distinguish between 7 three different types of physicians: (1) treating physicians, who actually treat the 8 claimant; (2) examining physicians, who examine but do not treat the claimant; 9 and, (3) nonexamining physicians who neither treat nor examine the claimant. 10 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 11 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at 12 631. The ALJ should give more weight to the opinion of an examining physician 13 than to the opinion of a nonexamining physician. Id. 14 When a treating physician’s opinion is not contradicted by another 15 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 16 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 17 physician’s opinion is contradicted by another physician, the ALJ is only required 18 to provide “specific and legitimate reasons” for rejecting the opinion of the first 19 physician. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when 20 an examining physician’s opinion is not contradicted by another physician, the 21 ALJ may reject the opinion only for “clear and convincing” reasons. Lester, 81 22 F.2d at 830. When an examining physician’s opinion is contradicted by another 23 physician, the ALJ is only required to provide “specific and legitimate reasons” for 24 rejecting the opinion of the examining physician. Id. at 830-831. 25 The specific and legitimate standard can be met by the ALJ setting out a 26 detailed and thorough summary of the facts and conflicting clinical evidence, 27 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 28 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer his ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 conclusions, he “must set forth his interpretations and explain why they, rather 2 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 3 1988). 4 1. Jan Kouzes, Ed.D. 5 Dr. Kouzes evaluated Plaintiff on July 18, 2012, and diagnosed her with 6 bipolar disorder, alcohol dependence, and cannabis abuse. Tr. 388-392. She 7 opined that Plaintiff had a severe4 limitation in the abilities to perform activities 8 within a schedule, maintain regular attendance and be punctual within customary 9 tolerances without special supervision, to communicate and perform effectively in 10 a work setting, to complete a normal work day and work week without 11 interruptions from psychologically based symptoms, and to maintain appropriate 12 behavior in a work setting. Tr. 390. She opined Plaintiff had a marked5 limitation 13 in the abilities to understand, remember, and persist in tasks by following detailed 14 instructions, to perform routine tasks without special supervision, to adapt to 15 changes in a routine work setting, to be aware of normal hazards and take 16 appropriate precautions, and to set realistic goals and plan independently. Id. 17 Additionally, Dr. Kouzes opined that Plaintiff had a moderate6 limitation in the 18 abilities to understand, remember, and persist in tasks by following very short and 19 simple instructions, to learn new tasks, to make simple work-related decisions, and 20 to ask simple questions or request assistance. Id. 21 The ALJ gave “partial weight” to Dr. Kouzes’ opinion because Plaintiff’s 22 23 24 25 26 27 28 4 “‘Severe’ means the inability to perform the particular activity in regular competitive employment or outside of a sheltered workshop.” Tr. 390. 5 “‘Marked’ means a very significant limitation on the ability to perform one or more basic work activity.” Tr. 390. 6 “‘Moderate’ means there are significant limits on the ability to perform one or more basic work activity.” Tr. 390. ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 treatment records did not support the finding that she had marked or severe 2 functional limitations caused by a mental impairment. Tr. 27. The ALJ stated that 3 the treatment records “show she reported obtaining benefit from her medications 4 and that she objectively showed improvement after completing her inpatient 5 substance treatment program.” Tr. 27. However, the only support the ALJ 6 provided for his finding that Plaintiff had expressed improvement with medication 7 use was the medication management note from Dr. Heistand dated October 10, 8 2012, stating she had decreased depression, decreased anxiety, and a stable mood. 9 Tr. 644. But the records from Dr. Heistand’s facility, Central Washington 10 Comprehensive Mental Health, when read in totality shows that this stability and 11 decreased symptoms was not a maintained status for Plaintiff even when taking 12 medication: On October 18, 2012, Plaintiff was “over emotionally, tearful, 13 comical, laughing and serious,” Tr. 630; on October 23, 2012, Plaintiff’s counselor 14 stated “Pam is really delusional about life at times,” Tr. 625; and the same day, her 15 group therapist stated “Pam gets really excited about some things and then is in 16 denial about other things,” Tr. 623. Plaintiff’s providers from this same facility 17 have also provided opinions, which included severe and marked limitations. Tr. 18 360-362, 690-693. Additionally, nowhere in the record did the ALJ cite to this 19 “objective improvement.” He did note that in August of 2012, a counseling note 20 described Plaintiff as “smiling and enthusiastic when sharing about her treatment 21 program,” and “excited” after her aftercare. Tr. 25. However, the ALJ failed to 22 state how excitement surrounding sobriety was inconsistent with Dr. Kouzes’ 23 opinion that Plaintiff had severe limitations that were not caused by alcohol or drug 24 use and that these severe limitations would persist following sixty days of sobriety. 25 Tr. 391. 26 The ALJ’s assertion that Plaintiff improved with medication and that there 27 was “objective improvement” following her inpatient treatment is not supported by 28 substantial evidence, therefore this reason falls shorts of the lessor standard of ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 specific and legitimate and is a not a legally sufficient reason to reject Dr. Kouzes’ 2 opinion. 3 2. 4 On September 26, 2012, Dr. Heistand and Ms. Morgan completed a Mental Kari Heistand, M.D., and Mona Morgan, LMHC 5 Residual Functional Capacity Assessment form together. Tr. 360-362. On the 6 form, the two providers opined that Plaintiff was severely limited7 in the abilities to 7 maintain attention and concentration for extended periods, to complete a normal 8 workday and workweek without interruptions from psychologically based 9 symptoms, and to perform at a consistent pace without an unreasonable number 10 and length of rest periods; marked limited8 in the abilities to understand and 11 remember detailed instructions, to carry out detailed instructions, to work in 12 coordination with or proximity to others without being distracted by them, to 13 accept instructions and respond approximately to criticism from supervisors, and to 14 get along with coworkers or peers without distracting them or exhibiting 15 behavioral extremes; and moderately9 limited in the abilities to interact 16 appropriately with the general public, to ask simple questions or request assistance, 17 to maintain socially appropriate behavior and to adhere to basic standards of 18 neatness and cleanliness, to respond appropriately to changes in the work setting, 19 and to set realistic goals or make plans independently of others. Id. The ALJ gave 20 21 22 23 7 “Severely Limited – Inability to perform one or more basic work-related activities.” Tr. 360. 8 “Markedly Limited – Very significant interference with basic work-related 24 activities, i.e., unable to perform the described mental activity for more than 33% 25 of the work day.” Tr. 360. 26 9 “Moderately Limited – Significant interference with basic work-related 27 activities, i.e., unable to perform the described mental activity for at least 20% of 28 the work day up to 33% of the work day.” Tr. 360. ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 this opinion “limited persuasive value” because it contained no discussion of 2 objective evidence or observations as a basis for the opined limitations. Tr. 29. 3 This reason is improper. It is true that “an ALJ may discredit treating 4 physicians’ opinions that are conclusory, brief, and unsupported by the record as a 5 whole or by objective medical findings.” Batson, 359 F.3d at 1195. However, an 6 ALJ may not discredit a treating physician’s opinion, even a conclusory one, if it is 7 supported by the record and the opining physician’s treatment notes. See Burrell, 8 775 F.3d at 1140. Dr. Heistand saw Plaintiff the same day as her opinion and 9 noted mild psychomotor agitation, daily auditory and visual hallucinations, 10 depressed mood, and a somewhat labile affect. Tr. 539. Additionally, the 11 treatment notes from Central Washington Comprehensive Mental Health support 12 the opined limitations: “She seems to even sometimes revert back to what is 13 almost baby talk,” Tr. 426; stating she would hurt her significant other before he 14 hurt her, Tr. 312, she “was overly emotional, tearful, comical, laughing and 15 serious,” Tr. 630; “Her anxiety seems bad and she is struggling with it,” Tr. 677; 16 she “was up and down emotionally, tears, raised angry voice,” Tr. 678; and “At 17 times she almost refers back to baby talk.” Tr. 681. 18 19 Considering the case is already being remanded, the ALJ is instructed to also reconsider the opinion of Dr. Heistand and Ms. Morgan on remand. 20 3. Mona Morgan, LMHC, and Jessica Web, ARNP 21 In August 2013, Plaintiff’s providers, Ms. Morgan and Ms. Webb completed 22 a Mental Residual Functional Capacity Assessment, like the one completed by Dr. 23 Heistand and Ms. Morgan the prior September. Tr. 690-692. In their opinion, they 24 gave Plaintiff three severe limitations, five marked limitations, and seven moderate 25 limitations. Id. Additionally, they opined that Plaintiff would be off-task over 26 30% of the time during a 40-hour work schedule and Plaintiff would likely miss 27 four or more days per month if attempting to work a 40-hour work schedule. Tr. 28 962. The ALJ gave “limited weight” to this opinion because (1) the record did not ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 support the opined level of limitation, (2) it did not include a discussion of any 2 objective medical evidence, and (3) it did not discuss Plaintiff’s continued 3 substance use and how it may exacerbate her symptoms. Tr. 28. 4 Unlike Dr. Kouzes and Dr. Heistand, Ms. Morgan and Ms. Web are not 5 acceptable medical sources; instead, they are considered “other sources.” See 20 6 C.F.R. §§ 404.1513(d), 416.913(d). Generally, the ALJ should give more weight 7 to the opinion of an acceptable medial source than to the opinion of an “other 8 source,” such as a therapist. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is 9 required, however, to consider evidence from “other sources,” 20 C.F.R. §§ 10 404.1513(d), 416.913(d); S.S.R. 06-03p, “as to how an impairment affects a 11 claimant’s ability to work,” Sprague, 812 F.2d at 1232. An ALJ must give reasons 12 that are germane to each “other source” to discount their opinions. Dodrill v. 13 Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 14 While the Court agrees with Plaintiff that the third reason provided by the 15 ALJ is an inaccurate representation of the record, the form completed by the two 16 providers specifically requested that they disregard the effects of any current 17 substance use, because of the lesser standard of a germane reasons, the ALJ did not 18 error in his treatment of this opinion. However, because the case is being 19 remanded to readdress the opinions of Dr. Kouzes and Dr. Heistand, the ALJ is 20 further instructed to address all of the medical source opinions in the file, including 21 that of Ms. Morgan and Ms. Web. 22 REMEDY 23 The decision whether to remand for further proceedings or reverse and 24 award benefits is within the discretion of the district court. McAllister v. Sullivan, 25 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 26 where “no useful purpose would be served by further administrative proceedings, 27 or where the record has been thoroughly developed,” Varney v. Secretary of Health 28 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused ORDER GRANTING PLAINTIFF’S MOTION . . . - 16 1 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 2 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 3 (noting that a district court may abuse its discretion not to remand for benefits 4 when all of these conditions are met). This policy is based on the “need to 5 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 6 outstanding issues that must be resolved before a determination can be made, and it 7 is not clear from the record that the ALJ would be required to find a claimant 8 disabled if all the evidence were properly evaluated, remand is appropriate. See 9 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 10 11 F.3d 1172, 1179-80 (9th Cir. 2000). In this case, it is not clear from the record that the ALJ would be required to 12 find Plaintiff disabled if all the evidence were properly evaluated. Further 13 proceedings are necessary for the ALJ to determine Plaintiff’s credibility regarding 14 her symptom reporting, and reconsider the weight provided to the medical source 15 opinions throughout the record. Additionally, the ALJ is instructed to reconsider 16 Plaintiff’s impairments of asthma/COPD and left knee injury at step two. The ALJ 17 will also need to supplement the record, reconsider the medical evidence, and, 18 elicit testimony from an pulmonology expect regarding the severity of Plaintiff’s 19 breathing impairment and resulting functional limitations, a psychology expert 20 regarding Plaintiff’s psychological impairments and resulting functional 21 limitations, and a vocational expert for any step four or five determinations. 22 CONCLUSION 23 Accordingly, IT IS ORDERED: 24 1. 25 26 Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 27 GRANTED, in part, and the matter is REMANDED to the Commissioner for 28 additional proceedings consistent with this Order. ORDER GRANTING PLAINTIFF’S MOTION . . . - 17 1 3. Application for attorney fees may be filed by separate motion. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 4 and the file shall be CLOSED. 5 DATED July 5, 2016. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 18
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