McAndrews v. Commissioner of Social Security, No. 1:2017cv03075 - Document 17 (E.D. Wash. 2018)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 14 and denying 15 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)

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McAndrews v. Commissioner of Social Security Doc. 17 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Apr 05, 2018 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 BARRY MCANDREWS, No.1:17-CV-03075-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 Nos. 14, 15. Attorney D. James Tree represents Barry McAndrews (Plaintiff); 18 Special Assistant United States Attorney Jeffrey R. McClain represents the 19 Commissioner of Social Security (Defendant). The parties have consented to 20 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 21 record and briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 22 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 23 Judgment; and REMANDS the matter to the Commissioner for additional 24 proceedings pursuant to 42 U.S.C. § 405(g). 25 JURISDICTION 26 Plaintiff filed applications for Supplemental Security Income (SSI) and 27 Disability Insurance Benefits (DIB) on August 14, 2006, Tr. 264, alleging 28 disability since October 15, 2001, Tr. 242, 245, due to asthma, attention deficit ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 hyperactivity disorder (ADHD), and sinus problems, Tr. 269. The applications 2 were denied initially and upon reconsideration. Tr. 159-62, 164-67. 3 Administrative Law Judge (ALJ) R.S. Chester held a hearing on March 27, 2009 4 and heard testimony from Plaintiff and vocational expert, Daniel McKinney. Tr. 5 50-71. The ALJ issued an unfavorable decision on April 14, 2009. Tr. 134-47. 6 The Appeals Council granted review and remanded the case back to the ALJ on 7 February 16, 2011. Tr. 153-56. On July 21, 2011, ALJ Caroline Siderius held a new hearing and heard 8 9 testimony from Plaintiff, psychological expert, Margaret Moore, Ph.D., and 10 vocational expert, Daniel McKinney. Tr. 72-126. The ALJ issued an unfavorable 11 decision on August 25, 2011. Tr. 21-39. The Appeals Council denied review on 12 July 24, 2013. Tr. 1-3. On September 24, 2013, Plaintiff requested judicial review 13 of the ALJ’s August 25, 2011 decision in the Eastern District of Washington. Tr. 14 1538-40. On October 9, 2014, this Court issued an order remanding the case to the 15 Commissioner for additional proceedings. Tr. 1545-61. On December 17, 2015 and May 18, 2016, ALJ Virginia M. Robinson held 16 17 two additional hearings. Tr. 1427-99. The ALJ heard testimony from Plaintiff and 18 vocational expert, Kimberly Molinex. Id. She issued an unfavorable decision on 19 December 21, 2016. Tr. 1390-1415. The Appeals Council did not assume 20 jurisdiction of the case within the prescribed period set forth in 20 C.F.R. § 21 404.984, and the ALJ’s December 21, 2016 decision became the final decision of 22 the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 23 405(g). Plaintiff filed this action for judicial review on April 20, 2017. ECF No. 24 1. STATEMENT OF FACTS 25 The facts of the case are set forth in the administrative hearing transcripts, 26 27 the ALJ’s decision, and the briefs of the parties. They are only briefly summarized 28 here. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 Plaintiff was 37 years old at the alleged date of onset. Tr. 242. His highest 2 level of education was the tenth grade, completed in 1982. Tr. 275. His work 3 history includes the jobs of baker, cook, and laborer. Tr. 270, 285. He alleged that 4 asthma, ADHD, depression, and sinus problems limited his ability to work. Tr. 5 269. Plaintiff reported that he stopped working on January 10, 2005 due to his 6 conditions. Id. 7 8 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 9 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 10 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 11 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 12 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 13 not supported by substantial evidence or if it is based on legal error. Tackett v. 14 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 15 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 16 another way, substantial evidence is such relevant evidence as a reasonable mind 17 might accept as adequate to support a conclusion. Richardson v. Perales, 402 18 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 19 interpretation, the court may not substitute its judgment for that of the ALJ. 20 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 21 findings, or if conflicting evidence supports a finding of either disability or non- 22 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 23 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 24 evidence will be set aside if the proper legal standards were not applied in 25 weighing the evidence and making the decision. Brawner v. Secretary of Health 26 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 27 28 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 2 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 3 through four, the burden of proof rests upon the claimant to establish a prima facie 4 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 5 burden is met once the claimant establishes that physical or mental impairments 6 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 7 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 8 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 9 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 10 which the claimant can perform exist in the national economy. Batson v. Comm’r 11 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 12 cannot make an adjustment to other work in the national economy, a finding of 13 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ADMINISTRATIVE DECISION 14 15 16 17 18 19 On December 21, 2016, 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 October 15, 2001, the alleged date of onset. Tr. 1393. At step two, the ALJ determined Plaintiff had the following severe 20 impairments: asthma; ADHD; an affective disorder; an anxiety disorder; a 21 learning disorder; and a personality disorder. Tr. 1393. 22 At step three, the ALJ found Plaintiff did not have an impairment or 23 combination of impairments that met or medically equaled the severity of one of 24 the listed impairments. Tr. 1394. 25 At step four, the ALJ assessed Plaintiff’s residual function capacity and 26 determined he could perform work at a light exertional level with the following 27 limitations: 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 10 [T]he claimant can lift and/or carry 20 pounds occasionally and up to 10 pounds frequently. The claimant can stand or walk for approximately 6 hours and sit for approximately 6 hours per 8-hour workday with normal breaks. The claimant can no more than occasionally climb ramps or stairs. He can never climb ladders, ropes or scaffolds. The claimant can no more than frequently stoop, kneel, crouch and crawl. The claimant must avoid concentrated exposure to excessive vibration and to workplace hazards such as working with dangerous machinery and working at unprotected heights. The claimant must avoid exposure to pulmonary irritants such as fumes, odors, dusts and gases. The claimant is further limited to simple routine tasks with routine, simple, work-related decisions. The claimant can have no more than occasional, superficial interaction with coworkers and incidental interaction with the public. 11 Tr. 1396. The ALJ determined Plaintiff had no past relevant work. Tr. 1413. 1 2 3 4 5 6 7 8 9 At step five, the ALJ determined that, considering Plaintiff’s age, education, 12 13 work experience and residual functional capacity, and based on the testimony of 14 the vocational expert, there were other jobs that exist in significant numbers in the 15 national economy Plaintiff could perform, including the jobs of assembler 16 production, cleaner housekeeping, and packing line worker. Tr. 1414. The ALJ 17 concluded Plaintiff was not under a disability within the meaning of the Social 18 Security Act at any time from October 15, 2001, through the date of the ALJ’s 19 decision. Tr. 1415. 20 ISSUES The question presented is whether substantial evidence supports the ALJ’s 21 22 decision denying benefits and, if so, whether that decision is based on proper legal 23 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 24 medical opinions, (2) failing to make a proper step two determination, and (3) 25 failing to properly address Plaintiff’s symptom statements. 26 27 28 DISCUSSION 1. Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 opinions expressed by Fady F. Sabry, M.D., Gerardo Melgar, M.D., Philip 2 Johnson, Ph.D., Tae-Im Moon, Ph.D., Luci Carstens, Ph.D., Phillip Barnard, Ph.D., 3 Amelia Rutter, ARNP, and Kathyn Jolin, PMHNP. ECF No. 14 at 5-17. 4 In weighing medical source opinions, the ALJ should distinguish between 5 three different types of physicians: (1) treating physicians, who actually treat the 6 claimant; (2) examining physicians, who examine but do not treat the claimant; 7 and, (3) nonexamining physicians who neither treat nor examine the claimant. 8 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 9 weight to the opinion of a treating physician than to the opinion of an examining 10 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 11 should give more weight to the opinion of an examining physician than to the 12 opinion of a nonexamining physician. Id. 13 When a treating physician’s opinion is not contradicted by another 14 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 15 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 16 physician’s opinion is contradicted by another physician, the ALJ is only required 17 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 18 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 19 physician’s opinion is not contradicted by another physician, the ALJ may reject 20 the opinion only for “clear and convincing” reasons, and when an examining 21 physician’s opinion is contradicted by another physician, the ALJ is only required 22 to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.3d 23 at 830-31. 24 The specific and legitimate standard can be met by the ALJ setting out a 25 detailed and thorough summary of the facts and conflicting clinical evidence, 26 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 27 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 28 conclusions, she “must set forth [her] interpretations and explain why they, rather ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 2 1988). 3 A. Fady F. Sabry, M.D. 4 On August 11, 2009, Dr. Sabry completed a Physical Evaluation form for 5 the Washington State Department of Social and Health Services (DSHS). Tr. 6 1313-16. He found Plaintiff’s asthma resulted in mild to moderate limitation in 7 Plaintiff’s ability to sit, stand, walk, lift, handle, and carry and Plaintiff’s anxiety 8 resulted in mild limitations in the same six functions. Tr. 1315. He then limited 9 Plaintiff to sedentary work. Id. He found that Plaintiff was able to participate in 10 pre-employment activities such as job searches or employment classes, stating that 11 Plaintiff needed medicine for asthma control and if he got the asthma under control 12 the limitations would be none to mild instead of mild to moderate. Tr. 1316. Dr. 13 Sabry completed a second Physical Evaluation form for DSHS on June 18, 2010. 14 Tr. 1328-31. Dr. Sabry diagnosed Plaintiff with asthma and hypertension and 15 opined that they resulted in mild limitations in Plaintiff’s ability to sit, stand, walk, 16 lift, handle, and carry. Tr. 1330. He again limited Plaintiff to sedentary work. Id. 17 He opined that without treatment Plaintiff’s conditions would continue for at least 18 twelve months. Tr. 1331. Again, he stated that Plaintiff needed medications. Id. 19 The ALJ gave these opinions some weight, accepting the mild to moderate 20 limitations due to asthma and anxiety by finding that they were supported by the 21 overall record, but rejecting Dr. Sabry’s ultimate conclusion that Plaintiff was 22 limited to sedentary work. Tr. 1407. The ALJ stated that she “does not find 23 sufficient objective medical evidence to support [Dr. Sabry’s] finding the claimant 24 is limited to sedentary work.” Id. 25 This assertion by the ALJ for rejecting the limitation to sedentary work 26 opinion of Dr. Sabry is insufficient. “[A]n ALJ errs when [she] rejects a medical 27 opinion or assigns it little weight while doing nothing more than ignoring it, 28 asserting without explanation that another medical opinion is more persuasive, or ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 criticizing it with boilerplate language that fails to offer a substantive basis for 2 [her] conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) 3 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). Here, the Court 4 agrees with Plaintiff that the ALJ failed to properly evaluate this treating doctor’s 5 opinions by failing to provide sufficient explanation to support her findings Plaintiff asserts that the Court should apply the credit-as-true rule to Dr. 6 7 Sabry’s opinions and remand this case for an immediate award of benefits at least 8 as of Plaintiff’s fiftieth birthday, proposing that the Court apply grid rule 201.09. 9 ECF No. 14 at 8. The Ninth Circuit has developed a framework for applying the 10 credit-as-true rule: 11 15 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 16 Garrison, 759 at 1020. All three parts of the framework must be satisfied in order 17 for the Court to remand a case with instructions to calculate and award benefits. 18 Id. 12 13 14 19 Here, as addressed above, the second part of the Ninth Circuit’s framework 20 has been met: the ALJ as failed to provide legally sufficient reasons for rejecting 21 the Dr. Sabry’s opinions. However, considering the first and third components 22 brings to light two issues: (1) Plaintiff’s residual functional capacity as of his 23 fiftieth birthdate and (2) the materiality of Plaintiff’s substance abuse. 24 First, Dr. Sabry’s most recent opinion is from June 18, 2010. Tr. 1331. 25 Plaintiff attained the age of fifty in July of 2014. Tr. 242. Therefore, four years 26 elapsed between the opinion and Plaintiff reaching the approaching advanced age 27 category applicable in grid rule 201.09. During this time, Plaintiff sought 28 treatment and received medication for his asthma. See Tr. 2729, 2731, 2735, 2740- ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 41, 2745, 2749-50, 2754, 2759, 2763, 2768, 2776, 2823, 2828, 2833-34, 2838, 2 2843, 2848-49. In the month that Plaintiff turned fifty, his medications included 3 Flonase, Advair, Atrovent, Claritin, and Albuterol. Tr. 2823. According to Dr. 4 Sabry’s opinions, Plaintiff’s limitation to sedentary work was expected to last at 5 least twelve months without treatment, and Dr. Sabry indicated Plaintiff would 6 experience improvement with medication. Tr. 1316, 1331. Therefore, even 7 crediting Dr. Sabry’s June 18, 2010 opinion as true, does not necessarily mean 8 Plaintiff was limited to sedentary work around July of 2014. As such, it is 9 necessary to remand the case so that Dr. Sabry’s opinions can be properly 10 addressed, and if it is determined that Plaintiff was limited to sedentary work in 11 2010, the ALJ will need to determine if that limitation continue through Plaintiff’s 12 fiftieth birthday. 13 Second, even if the record was fully developed and substantial evidence 14 supported a finding that Plaintiff was disabled as of his fiftieth birthday, it must be 15 determined whether his substance abuse was a contributing factor material to the 16 determination of disability. See 20 C.F.R. §§ 404.1535, 416.935; S.S.R. 13-2p. 17 Arguably, Dr. Sabry addressed this issue in his opinions, both of which found that 18 of the impairments addressed on the forms none were caused or aggravated by 19 alcohol or drug use. Tr. 1316, 1331. Additionally, the ALJ found that Plaintiff 20 appeared to have attained and maintained sobriety from November of 2013 through 21 the date of the most recent ALJ decision, Tr. 1404, despite evidence Plaintiff tested 22 positive for cannabis in October of 2014, Tr. 2024. However, since the case is to 23 be remanded to address Dr. Sabry’s opinions, this is to be addressed in full upon 24 remand, if necessary. 25 B. Gerardo Melgar, M.D. 26 On June 14, 2005, Dr. Melgar completed a physical evaluation form for 27 DSHS. Tr. 581- 83. He diagnosed Plaintiff with asthma and opined that it resulted 28 in a moderate to marked limitation on his ability to walk, lift, and carry. Tr. 582. ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 He limited Plaintiff to sedentary work with no exposure to extreme temperatures 2 and dust, no heavy lifting, and no prolonged walking. Id. Dr. Melgar opined that 3 Plaintiff’s limitations would continue without medical treatment for at least twelve 4 months, but with treatment his ability to work should be re-evaluated in twelve 5 months. Tr. 583. The ALJ gave the opinion little weight for two reasons: (1) there 6 is little evidence in the medical records indicating Plaintiff’s asthma has resulted in 7 any exertional limitations, and (2) Plaintiff has maintained a full complement of 8 daily activities despite the asthma. Tr. 1406. The parties agree the ALJ was 9 required to provide specific and legitimate reasons for rejecting Dr. Melgar’s 10 11 opinion. ECF Nos. 15 at 3; 16 at 2. The ALJ’s first reason, that that there is little evidence of Plaintiff’s asthma 12 resulting in functional limitations, meets the specific and legitimate standard. 13 Inconsistency with the majority of objective evidence is a specific and legitimate 14 reason for rejecting a physician’s opinions. Batson, 359 F.3d at 1195. While the 15 ALJ failed to cite any medical evidence following this statement, Tr. 1406, earlier 16 in her opinion, she summarized the medical evidence surrounding Plaintiff’s 17 asthma including the FEV1 scores throughout the file, Tr. 1399-1400. As asserted 18 by the ALJ, this evidence demonstrates that Plaintiff’s asthma symptoms improved 19 with treatment, such as a bronchodilator and the use of his inhalers. Id. 20 Plaintiff argues that there is evidence that his asthma prevented him from 21 attending group therapy sixteen times. ECF No. 14 at 8-9. However, the records 22 Plaintiff cites demonstrates that he was excused from group because he reported 23 feeling ill or was attending doctor appointments; these were not clear statements of 24 observed asthma attacks preventing attendance. Tr. 2300, 2302-03, 2305-07, 25 2309-10, 2390, 2392, 2406, 2419, 2422, 2430, 2432. There is evidence that on 26 January 23, 2014, Plaintiff missed group therapy because he was in the hospital for 27 dyspnea and ear pain. Tr. 2397, 3110. Plaintiff reported to ambulance staff that he 28 was in treatment and unable to get his medications, Tr. 3109, and at the hospital his ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 breathing improved with a breathing treatment. Tr. 3112. This supports the ALJ’s 2 assertion that Plaintiff’s breathing impairments improve with treatment and are 3 remedied with medication. In fact, the only asthma related exertional limitations 4 demonstrated in these records, is Plaintiff’s complaint that the asthma medication 5 causes drowsiness. Tr. 2384. Since the ALJ’s conclusions are supported by 6 substantial evidence, her reason meets the specific and legitimate standard. 7 Plaintiff is accurate that the ALJ was inconsistent in finding asthma severe at 8 step two, i.e. that it more than minimally limits plaintiff’s ability to work, Tr. 1393, 9 then later in the residual functional capacity discussion, the ALJ found that “there 10 is no evidence in the medical record indicating the claimant’s asthma has resulted 11 in any exertional limitations,” Tr. 1399, and then when discussing Dr. Melgar’s 12 opinion she found that “there is little evidence in the medical records indicating the 13 claimant’s asthma has resulted in any exertional limitations.” Tr. 1406. However, 14 any error resulting from these inconsistent findings are essentially harmless 15 because S.S.R. 96-8p requires the ALJ’s residual functional capacity determination 16 to consider all of Plaintiff’s impairments, both severe and non-severe. Therefore, 17 no matter where asthma falls on the severity spectrum, it is to be considered. Here, 18 the ALJ has clearly addressed asthma throughout the residual functional capacity 19 discussion and included limitations representing her findings in the final residual 20 functional capacity determination. See Tr. 1396 (limiting Plaintiff’s ability to 21 climb ramps or stairs and limiting Plaintiff’s exposure to pulmonary irritants); See 22 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (An error is harmless 23 when “it is clear from the record that the . . . error was inconsequential to the 24 ultimate nondisability determination.”). However, the case is being remanded for 25 the ALJ to further address Dr. Sabry’s opinion, and the ALJ can correct these 26 inconsistent findings upon remand. 27 28 The ALJ’s second reason for rejecting the opinion, that it is inconsistent with Plaintiff’s reported activities, is sufficient to meet the specific and legitimate ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 standard. A claimant’s daily activities may be seen as inconsistent with the 2 presence of a disabling condition. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th 3 Cir. 1990). When applying for benefits, Plaintiff reported that one of his primary 4 sources of transportation was walking. Tr. 280. In May and June of 2010, Plaintiff 5 was treated for two separate falls from his bicycle. Tr. 1181, 3020. Again in 6 August of 2012, Plaintiff was treated for a fall from his bicycle. Tr. 2995. In April 7 of 2014, Plaintiff again reported walking as one of his modes of transportation. Tr. 8 1900. This is substantial evidence that supports the ALJ’s assertion that Plaintiff’s 9 activities were inconsistent with the limitations set forth in Dr. Melgar’s opinion. 10 Plaintiff asserts that these periods of activity represent the waxing and 11 waning of his asthma flares. ECF No. 14 at 7. Plaintiff cites to a treatment record 12 dated June 27, 2006 in which he was diagnosed with exacerbation of his asthma. 13 Id. citing Tr. 593. However, the treatment record shows that Plaintiff told the 14 provider that he had failed to follow up with his appointment with Dr. Hill and had 15 run out of all his asthma medications, including Singular, Flonase, Claritin, Advair, 16 Atrovent, and albuterol. Tr. 593. Therefore, this is consistent with the ALJ’s 17 findings that Plaintiff’s symptoms are controlled with medication. Waxing and 18 waning of symptoms are not uncommon when discussing chronic conditions. See 19 Garrison, 759 F.3d at 1017. However, the Court refuses to equate a failure to 20 follow prescribed treatment as a waxing of symptoms. Therefore, the ALJ’s 21 rationale was supported by substantial evidence and his rejection of the opinion 22 was legally sufficient. However, this case is being remanded for the ALJ to 23 properly address Dr. Sabry’s opinions regarding Plaintiff’s asthma. Therefore, 24 upon remand the ALJ may choose to readdress Dr. Melgar’s opinion if warrented 25 by his reconsidering of Dr. Sabry’s opinions. 26 C. Philip Johnson, Ph.D. 27 On October 16, 2006, Dr. Johnson completed a psychological evaluation. 28 Tr. 723-28. He diagnosed Plaintiff with alcohol dependence in early remission, ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 cannabis dependence in early remission, amphetamine dependence in sustained full 2 remission, major depressive disorder, recurrent, in partial remission, ADHD, and 3 borderline intellectual functioning. Tr. 727. In Dr. Johnson’s medical source 4 statement, he opined that Plaintiffs abilities to understand, reason, and remember 5 falls in the borderline range of intellectual functioning, his ability to sustain 6 concentration, persistence, and paces is adequate when sober with some limitations 7 from ADHD, his ability to interact socially was adequate, and his ability to cope 8 with stress had some limitations. Tr. 728. The ALJ gave this opinion significant 9 weight finding it was supported by Dr. Johnson’s narrative report. Tr. 1408. 10 The Court is remanding this case for a reconsideration of Dr. Sabry’s 11 opinion, which addressed Plaintiff’s anxiety, see supra, and the psychological 12 opinions of Dr. Moon and Dr. Barnard, see infra. Therefore, the ALJ is instructed 13 to readdress Dr. Johnson’s opinion upon remand. 14 D. Tae-Im Moon, Ph.D. 15 On July 12, 2012, Dr. Moon completed a Psychological/Psychiatric 16 Evaluation form for DSHS. Tr. 2069-73. He diagnosed Plaintiff with major 17 depressive disorder, anxiety disorder, ADHD, alcohol dependence in sustained 18 remission, cannabis dependence, and personality disorder. Tr. 2070. He opined 19 that Plaintiff had a marked limitation in eight and a moderate limitation in an 20 additional two of the thirteen areas of functioning provided on the form. Tr. 2071. 21 He opined that none of the impairments were primarily the result of alcohol or 22 drug use. Tr. 2072. He opined that the above limitations would persist for twelve 23 to twenty-four months with available treatment. Id. 24 The ALJ gave this opinion “limited weight” for four reasons: (1) it was 25 based on Plaintiff’s self-reports; (2) Plaintiff was required to cooperate with the 26 recommendations of DSHS to keep his cash assistance; (3) it was inconsistent with 27 the mental status examination performed by Dr. Moon; and (4) it was inconsistent 28 with the medical evidence of record. Tr. 1409. Both parties appear to agree the ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 ALJ was required to provide specific and legitimate reasons for rejecting Dr. 2 Moon’s opinion. ECF Nos. 15 at 10; 16 at 7-8. 3 The ALJ’s reason for rejecting Dr. Moon’s opinion fails to meet the specific 4 and legitimate standard. First, a doctor’s opinion may be discounted if it relies on 5 a claimant’s unreliable self-report. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 6 Cir. 2005); Tommasetti, 533 F.3d at 1041. However, the ALJ must provide a basis 7 for her conclusion that the opinion was based more heavily on a claimant’s self- 8 reports and not on clinical evidence. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th 9 Cir. 2014). Here, the ALJ failed to provide such a basis, stating only that “Dr. 10 Moon’s assessment is based on unreliable self-reports and conflicts as noted 11 above.” Tr. 1409. The reference to conflicts noted previously in the decision is 12 unclear as this was the first mention of Dr. Moon’s evaluation. Id. Therefore, this 13 first reason is not legally sufficient to support the ALJ’s treatment of Dr. Moon’s 14 opinion. 15 Second, the ALJ’s mention of Plaintiff’s requirement to attend treatment to 16 retain his eligibility for benefits under DSHS is neither specific nor legitimate. It is 17 unclear how Plaintiff following prescribed treatment would make Dr. Moon’s 18 evaluation less persuasive. The reason hints at an accusation of motivation for 19 secondary gain, but this would attack Plaintiff’s credibility, not Dr. Moon’s 20 reliability. Furthermore, the purpose for which medical reports are prepared does 21 not provide a legitimate basis for rejecting them. Lester, 81 F.3d at 832. 22 Therefore, this second reason is also legally insufficient. 23 Third, the ALJ found that Dr. Moon’s opinion was inconsistent with the 24 mental status examination he completed as part of his evaluation. Tr. 1409. The 25 ALJ’s conclusion that the mental status examination was normal except for 26 difficulties with abstract thought is not supported by substantial evidence. On the 27 mental status exam form, Dr. Moon found Plaintiff’s appearance to be unkempt, 28 his mood to be anxious/fearful, his affect to be anxious, and his abstract thought ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 process to be abnormal. Tr. 2072-73. Therefore, this reason is not sufficient to 2 support the ALJ’s ultimate determination to limit the weight provided to Dr. 3 Moon’s opinion. 4 The ALJ’s fourth reason, that Dr. Moon’s opinion was inconsistent with the 5 medical evidence, does not meet the necessary legal standard. Inconsistency with 6 the majority of objective evidence is a specific and legitimate reason for rejecting 7 physician’s opinions. Batson, 359 F.3d at 1195. The ALJ specifically found that 8 Plaintiff’s medical records showed he engaged in “robust activities of daily living,” 9 including attending AA meetings, bible study, and a local church, he responded 10 well to mental health medications, he failed to comply with follow-up treatment 11 and medication, he experienced symptom relief with medication usage, and there 12 were no reports of inattention or difficulty concentrating after he became sober. 13 Tr. 1409. The ALJ concluded that these findings were inconsistent with the 14 limitations opined by Dr. Moon. Id. However, the ALJ failed to state what portion 15 of Dr. Moon’s opinion was discounted by these records. This fails short of the 16 specificity required under Embrey, 849 F.2dat 421-22. Upon remand, the ALJ will 17 readdress Dr. Moon’s opinion. 18 E. Phillip Barnard, Ph.D. 19 On July 25, 2013, Dr. Barnard completed a Psychological/Psychiatric 20 Evaluation form for DSHS after examining Plaintiff. Tr. 2874-77. He diagnosed 21 Plaintiff with ADHD/Combined type, learning disorder not otherwise specified, 22 alcohol dependence in sustained full remission, and bipolar disorder not otherwise 23 specified. Tr. 2875. He opined that Plaintiff had a severe limitation in four areas 24 of mental functioning, a marked limitation in four areas of mental functioning, and 25 a moderate limitation in the remaining five areas of mental functioning addressed 26 on the form. Tr. 2876. He found that that current impairments were not the 27 primary result of drug or alcohol use in the past sixty days. Id. He further opined 28 that Plaintiff’s impairments would continue for twenty-four to forty-eight months ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 with available treatment. Id. 2 The ALJ gave the opinion “little weight” for three reasons: (1) the mental 3 status examination was inconsistent with the mental status examination from Dr. 4 Moon; (2) the opinion was prepared for the purposes of a state disability 5 determination and not a federal disability determination; and (3) it was inconsistent 6 with the rest of the medical evidence. All three of these reasons fail to meet the 7 lessor standard of specific and legitimate. 8 9 The ALJ’s first reason fails to meet the specific and legitimate standard. The ALJ stated that “[u]nlike with Dr. Moon, the claimant’s mental status 10 examination appears largely outside of normal limits in thought process, memory, 11 concentration and insight and judgment, which raises questions, as to the 12 claimant’s consistence of performance.” Tr. 1411. This statement is based on the 13 ALJ’s previous determination that Dr. Moon’s mental status examination 14 contained normal results. However, as addressed above, the conclusion that Dr. 15 Moon’s mental status examination showed normal results was not supported by 16 substantial evidence. However, if the two mental status exams are compared, it is 17 noted that Plaintiff performed differently on the tests, but also that the areas 18 Plaintiff struggled in on Dr. Barnard’s exam were not actually tested on Dr. 19 Moon’s exam: On Dr. Moon’s exam, serials seven were not performed and 20 Plaintiff’s serial three contained an error, he could recall three out of three objects 21 immediately, but there is no indication he was asked again after the three minute 22 delay; he could spell world forward but not backwards, and he could recall six 23 digits forward, but there is no indication he was tested on digits backwards. Tr. 24 2073. On Dr. Barnard’s exam, Plaintiff could not accomplish either serial sevens 25 or threes, he was able to recall one out of five objects after a five minuet delay, he 26 could spell world forward but not backwards, and he was able to reproduce only 27 four digits forward and three backwards. Tr. 2877. Additionally, Dr. Barnard 28 tested Plaintiff’s insight and judgement and Dr. Moon did not. Tr. 2073, 2877. ORDER GRANTING PLAINTIFF’S MOTION . . . - 16 1 Considering the previous determination that the ALJ’s findings regarding Dr. 2 Moon’s mental status examination were not supported by substantial evidence and 3 the fact that Dr. Moon’s examination did not contain the same testing as Dr. 4 Barnard’s examination, the Court refuses to find these two exams as comparable to 5 support the ALJ’s assertion that Plaintiff’s performance was inconsistent. 6 Therefore, this reason fails to meet the specific and legitimate standard. 7 The ALJ’s second reason, that the opinion was prepared for a state disability 8 determination and not a federal disability determination, does not meet the specific 9 and legitimate standard. The regulations require every medical opinion to be 10 evaluated, regardless of its source. 20 C.F.R. §§ 404.1527(c), 416.927(c). 11 Furthermore, the purpose for which medical reports are prepared does not provide 12 a legitimate basis for rejecting them. Lester, 81 F.3d at 832. Although this opinion 13 was prepared for the purpose of evaluating eligibility for DSHS benefits, the 14 medical opinion contained in the report must be considered by the ALJ. Thus, this 15 reason for rejecting Dr. Barnard’s opinion is improper. 16 The ALJ’s third reason for rejecting Dr. Barnard’s opinion was identical to 17 her final reason for rejecting Dr. Moon’s opinion. Tr. 1411. As discussed above, 18 without stating how this evidence was inconsistent with the opinion, the reason 19 falls short of the specific and legitimate standard in Embrey. Therefore, upon 20 remand, the ALJ will also readdress Dr. Barnard’s opinion. 21 F. Luci Carstens, Ph.D. 22 On August 12, 2013, Dr. Carstens competed a Review of Medical Evidence 23 form for DSHS indicating that she had reviewed Dr. Barnard’s July 25, 2013 24 report. Tr. 2850. Her opinion regarding Plaintiff’s functional abilities mirrored 25 that of Dr. Barnard. Tr. 2851. 26 The ALJ gave the opinion little weight for the same reasons he rejected Dr. 27 Barnard’s opinion. See supra. Based on the legal analysis presented above, the 28 ALJ will also readdress Dr. Carsten’s opinion on remand. ORDER GRANTING PLAINTIFF’S MOTION . . . - 17 1 F. Amelia Rutter, ARNP 2 Ms. Rutter completed a medical source statement form in July of 2015 in 3 which she opined that Plaintiff would miss an average of four or more work days a 4 month if employed at a forty hour work week. Tr. 1932-34. The ALJ gave the 5 opinion little weight for four reasons: (1) Ms. Rutter is not an acceptable medical 6 source, (2) the period of her assessment includes when Plaintiff was using 7 substances and when he was sober, (3) the opinion does not explain why Plaintiff 8 would miss work, and (4) it was inconsistent with the evidence in the record. Tr. 9 1412. 10 Ms. Rutter is a nurse practitioner, which for cases filed before March 27, 11 2017, is not considered an acceptable medical source. See 20 C.F.R. §§ 12 404.1502(a)(7), 416.902(a)(7). An ALJ is required, however, to consider evidence 13 from “other sources,” 20 C.F.R. §§ 404.1527(f), 416.927(f), “as to how an 14 impairment affects a claimant’s ability to work,” Sprague, 812 F.2d at 1232. An 15 ALJ must give “germane” reasons to discount evidence from “other sources.” 16 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 17 The ALJ’s first reason, that Ms. Rutter is not an acceptable medical source, 18 speaks to what standard applies to her opinion, and does not meet the germane 19 standard on its own. The three remaining reasons were specific to the opinion and 20 supported by substantial evidence. Ms. Rutter opined the limitations were present 21 in June of 2013, which was prior to Plaintiff’s reported sobriety in November of 22 2013, and was valid at the time the opinion was rendered in July of 2015. Tr. 23 1439, 1934. Therefore, the opinion covered both periods of Plaintiff’s use and 24 sobriety. The opinion did not provide an explanation as to why Plaintiff would 25 miss work at the rate opined despite the form providing a space for such an 26 explanation. Tr. 1933. The final reason, that the opinion was inconsistent with the 27 medical evidence that Plaintiff’s inattention and concentration difficulties did not 28 continue past sobriety, also meets the germane standard as records show that ORDER GRANTING PLAINTIFF’S MOTION . . . - 18 1 Plaintiff did not complain of these limitations following sobriety. See Tr. 3207, 2 3212. Therefore, the ALJ has provided some reasons that meet the necessary 3 standard. 4 This case is being remanded for the ALJ to readdress Dr. Sabry’s opinion 5 regarding Plaintiff’s physical limitations. Therefore, upon remand the ALJ will 6 also readdress her treatment of this opinion if warranted by the reweighing of the 7 other evidence in the file. 8 G. Kathyn Jolin, PMHNP 9 In July of 2015, Ms. Jolin completed a mental source statement in which she 10 opined that Plaintiff had a marked limitation in the ability to maintain attention and 11 concentration for extended periods and a moderate limitation in twelve additional 12 areas of mental functioning. Tr. 1935-37. Additionally, she opined that Plaintiff 13 would be off task over 30% of the time and would miss four or more days a month 14 if employed forty hours a week. Tr. 1937. The ALJ gave the opinion “little 15 weight” for two reasons: (1) Ms. Jolin was not an acceptable medical source and 16 (2) the opinion was inconsistent with the medical records showing activities of 17 daily living, a good response to mental health medications, a failure to comply with 18 treatment, and symptom relief with medication. Tr. 1412. As addressed above, the ALJ’s first reason speaks to the standard to apply to 19 20 the ALJ’s rationale for dismissing the opinion, and is not a standalone reason to 21 reject the opinion. However, the ALJ’s second reason, that the opinion is 22 inconsistent with the medical records is sufficient to meet the germane standard. This case is being remanded for the ALJ to readdress multiple opinions from 23 24 acceptable medical sources regarding Plaintiff’s mental residual functional 25 limitations. Therefore, the ALJ will readdress this opinion on remand. 26 2. 27 28 Step Two Plaintiff asserts that the ALJ erred at step two by failing to consider his hypertension and spinal impairments. ECF No. 14 at 17-18. ORDER GRANTING PLAINTIFF’S MOTION . . . - 19 The step-two analysis is “a de minimis screening device used to dispose of 1 2 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 3 impairment is “not severe” if it does not “significantly limit” the ability to conduct 4 “basic work activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). Basic work 5 activities are “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 6 404.1522(b), 416.922(b). “An impairment or combination of impairments can be 7 found not severe only if the evidence establishes a slight abnormality that has no 8 more than a minimal effect on an individual’s ability to work.” Smolen v. Chater, 9 80 F.3d 1273, 1290 (9th Cir. 1996) (internal quotation marks omitted). 10 The ALJ’s decision is silent as to Plaintiff’s hypertension and spinal 11 impairment. However, Plaintiff failed to allege what limitations stem from these 12 impairments. ECF No. 14 at 17-18. In Burch v. Barnhart, Ninth Circuit explained 13 that a failure to consider an impairment severe at step two can only harm a 14 claimant at steps three and steps five when step two is resolved in his favor. 400 15 F.3d 676, 682 (9th Cir. 2005). In that case, the Circuit refused to find any 16 reversible error at steps three and five because the claimant failed to offer any 17 theory, plausible or otherwise, as to how these impairments resulted in the claimant 18 equaling a listing or resulting in any limitations. Id. at 682-83. Here, Plaintiff also 19 failed to allege any functional limitations resulting from these impairments. 20 21 22 23 3. Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that his symptom statements were not consistent with the record. ECF No. 14 at 18-22. It is generally the province of the ALJ to make determinations regarding the 24 credibility of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 25 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 26 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 27 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 28 and convincing.” Smolen, 80 F.3d at 1281; Lester, 81 F.3d at 834. “General ORDER GRANTING PLAINTIFF’S MOTION . . . - 20 1 findings are insufficient: rather the ALJ must identify what testimony is not 2 credible and what evidence undermines the claimant’s complaints.” Lester, 81 3 F.3d at 834. 4 The ALJ found that Plaintiff’s testimony regarding the intensity, persistence, 5 and limiting effects of his symptoms as “not entirely consistent with the medical 6 evidence and other evidence in the record.” Tr. 1398. The ALJ found that the 7 medical record did not support Plaintiff’s statements concerning the frequency of 8 his acute asthma attack, the frequency he needed his rescue inhaler, his last use of 9 amphetamines, his ability to participate in activities, the frequency he left his 10 home, and the frequency he attended treatment. Tr. 1398-1400. Additionally, the 11 ALJ found that Plaintiff failed to follow prescribed treatment. Tr. 1399. 12 The evaluation of a claimant’s symptom statements and their resulting 13 limitations relies, in part, on the assessment of the medical evidence. See 20 14 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. Therefore, in light of the case 15 being remanded for the ALJ to address the medical source opinions in the file, a 16 new assessment of Plaintiff’s subjective symptom statements is necessary. 17 REMEDY 18 The decision whether to remand for further proceedings or reverse and 19 award benefits is within the discretion of the district court. McAllister v. Sullivan, 20 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 21 where “no useful purpose would be served by further administrative proceedings, 22 or where the record has been thoroughly developed,” Varney v. Secretary of Health 23 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 24 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 25 (9th Cir. 1990). See also Garrison, 759 F.3d at 1021 (noting that a district court 26 may abuse its discretion not to remand for benefits when all of these conditions are 27 met). This policy is based on the “need to expedite disability claims.” Varney, 28 859 F.2d at 1401. But where there are outstanding issues that must be resolved ORDER GRANTING PLAINTIFF’S MOTION . . . - 21 1 before a determination can be made, and it is not clear from the record that the ALJ 2 would be required to find a claimant disabled if all the evidence were properly 3 evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 4 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 5 In this case, it is not clear from the record that the ALJ would be required to 6 find Plaintiff disabled if all the evidence were properly evaluated. Further 7 proceedings are necessary for the ALJ properly address the medical opinions in the 8 file, make a new step two determination, and a new symptom statement 9 determination. Furthermore, the ALJ will supplement the record with any 10 outstanding evidence and hold a supplemental hearing if necessary. CONCLUSION 11 12 Accordingly, IT IS ORDERED: 13 1. 14 15 Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 16 GRANTED, in part, and the matter is REMANDED to the Commissioner for 17 additional proceedings consistent with this Order. 18 3. Application for attorney fees may be filed by separate motion. 19 The District Court Executive is directed to file this Order and provide a copy 20 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 21 and the file shall be CLOSED. 22 DATED April 5, 2018. 23 24 25 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 22

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