Collis v. Kijakazi, No. 1:2022cv03022 - Document 15 (E.D. Wash. 2023)
Court Description: ORDER GRANTING 12 PLAINTIFF'S SUMMARY-JUDGMENT MOTION, DENYING 13 DEFENDANT'S SUMMARY-JUDGMENT MOTION, AND REMANDING FOR ADDITIONAL PROCEEDINGS. The decision of the ALJ is REVERSED and this matter is REMANDED to the Commissioner of Social Security for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Judgment shall be entered in favor of Plaintiff. Case is CLOSED. Signed by Senior Judge Edward F. Shea. (BM, Case Administrator)
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Collis v. Kijakazi Doc. 15 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Feb 16, 2023 1 SEAN F. MCAVOY, CLERK 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 RHONDA C., 1 7 1:22-cv-3022-EFS Plaintiff, 8 9 No. v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, 10 ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S SUMMARY-JUDGMENT MOTION, AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 11 12 13 14 Plaintiff Rhonda C. appeals the denial of benefits by the Administrative Law 15 Judge (ALJ). Because the ALJ did not provide adequate reasons supported by 16 substantial evidence for discounting Plaintiff’s symptom testimony and certain 17 medical opinions, the ALJ reversibly erred. The Court reverses the decision of the 18 ALJ and remands the matter for further proceedings. 19 20 21 22 23 1 For privacy reasons, Plaintiff is referred to by first name and last initial or as “Plaintiff.” See LCivR 5.2(c). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com 1 I. Five-Step Disability Determination 2 A five-step evaluation determines whether a claimant is disabled. 2 Step one 3 assesses whether the claimant is engaged in substantial gainful activity. 3 Step two 4 assesses whether the claimant has a medically severe impairment or combination 5 of impairments that significantly limit the claimant’s physical or mental ability to 6 do basic work activities. 4 Step three compares the claimant’s impairment or 7 combination of impairments to several recognized by the Commissioner to be so 8 severe as to preclude substantial gainful activity. 5 Step four assesses whether an 9 impairment prevents the claimant from performing work she performed in the past 10 by determining the claimant’s residual functional capacity (RFC). 6 Step five 11 assesses whether the claimant can perform other substantial gainful work—work 12 that exists in significant numbers in the national economy—considering the 13 claimant’s RFC, age, education, and work experience. 7 14 15 16 17 18 19 20 21 22 23 2 20 C.F.R. §§ 404.1520(a), 416.920(a). 3 Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b). 4 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). 5 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). 6 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 7 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 2 1 II. Background 2 In July 2018, Plaintiff filed applications for benefits under Title 2 and 3 Title 16, claiming disability based on post-traumatic stress disorder (PTSD), 4 depression, and bipolar disorder. 8 Plaintiff alleged an onset date of February 1, 5 2016. 9 After the agency denied her applications initially and on reconsideration, 6 Plaintiff requested a hearing before an ALJ. 7 In January 2021, ALJ Gregory Moldafsky held a hearing at which Plaintiff 8 and a vocational expert testified. 10 In April 2021, the ALJ issued a written 9 decision denying Plaintiff’s disability application. 11 10 A. Five-Step Findings 11 As to the sequential disability evaluation, the ALJ found as follows. 12 • 13 Step one: Plaintiff had not engaged in substantial gainful activity since February 1, 2016, the alleged onset date. • 14 Step two: Plaintiff had the following medically determinable severe 15 impairments: PTSD, anxiety disorder, depressive disorder, and 16 personality disorder. 17 18 19 20 21 22 23 8 AR 289, 340. 9 AR 296. 10 AR 43–73. 11 AR 13–24. ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 • 1 Step three: Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the 3 listed impairments. • 4 RFC: Plaintiff had the RFC to perform a full range of work at all 5 exertional levels, subject to the following nonexertional limitations: 6 simple (as defined in the D.O.T. as SVP ratings 1 and 2), routine, and repetitive tasks in a work environment that is not fast paced or has strict production quotas (e.g., work that is goal based or measured by end result). Additionally, she is limited to no more than incidental interaction with the general public, no more than occasional interaction with coworkers and supervisors. 12 7 8 9 • 10 11 Step four: Plaintiff could perform past relevant work as a folding machine operator. • 12 Step five: considering Plaintiff’s RFC, age, education, and work history, 13 Plaintiff could perform work that existed in significant numbers in the 14 national economy, such as photo-copy machine operator, office helper, 15 and marker. 16 B. Persuasiveness/Credibility Findings 17 In his analysis, the ALJ found the following medical opinions persuasive: 18 • 19 the August 2019 and February 2020 opinions of the reviewing stateagency psychological consultants, 20 21 22 23 12 AR 17. ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 • 1 2 and • 3 4 5 the August 2018 opinion of examining psychologist Steven Olmer, PhD, the November 2014 opinion of examining psychologist Thomas Genthe, PhD. The ALJ found the following medical opinions unpersuasive: 6 • the June 2019 opinion of examining psychologist Tamsyn Bowes, PsyD, 7 • the opinions dated August 2018 through December 2020 of treating 8 counselor Amy Zook, MS, and • 9 10 the June 2012 opinion of consultative examiner Jay Toews, EdD. The ALJ also found Plaintiff’s subjective complaints and alleged limitations 11 not persuasive. 13 The ALJ found that Plaintiff’s medically determinable 12 impairments could reasonably be expected to cause some of the alleged symptoms, 13 but that her statements concerning the intensity, persistence, and limiting effects 14 of those symptoms were not entirely consistent with the medical evidence and 15 other evidence in the record. 16 III. 17 18 Standard of Review A district court’s review of the Commissioner’s final decision is limited. 14 The Commissioner’s decision is set aside “only if it is not supported by substantial 19 20 21 22 23 13 AR 22. 14 42 U.S.C. § 405(g). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 1 evidence or is based on legal error.” 15 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.” 16 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.” 17 The Court considers the entire record, and the Court may not 7 reverse an ALJ decision due an error that “is inconsequential to the ultimate 8 nondisability determination.” 18 9 IV. Analysis 10 Plaintiff argues the ALJ erred by improperly evaluating the medical 11 opinions of Dr. Bowes and Ms. Zook, as well as by improperly rejecting Plaintiff’s 12 symptom reports. 19 13 A. 14 15 Medical Opinions: Plaintiff shows consequential error. While an ALJ need not “give any specific evidentiary weight . . . to any medical opinion(s),” the ALJ must consider and evaluate the persuasiveness of all 16 17 18 19 20 21 22 23 15 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 16 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 17 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 18 Molina, 674 F.3d at 1115. See also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 See generally ECF No. 12. ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 1 medical opinions. 20 The factors for evaluating the persuasiveness of medical 2 opinions include, but are not limited to, supportability, consistency, relationship 3 with the claimant, and specialization. 21 Supportability and consistency are the 4 most important factors, and the ALJ is required to explain how both of these 5 factors were considered as to each medical source. 22 6 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 7 8 9 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 23 10 11 12 Typically, the ALJ may, but is not required to, also explain how the other factors 13 were considered. 24 14 1. 15 In June 2019, Tasmyn Bowes, PsyD, performed a psychological evaluation of 16 Plaintiff, which included the administration of a Trails A and B test, a Rey-15 test, Tasmyn Bowes, PsyD 17 18 19 20 21 22 23 20 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b). 21 Id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 22 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). 23 Id. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2). 24 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 1 a Beck Depression Inventory, and a Becks Anxiety Inventory. 25 Dr. Bowes 2 diagnosed Plaintiff with PTSD, bipolar disorder, and persistent depressive 3 disorder, “chronic major depression, severe.” 26 Dr. Bowes opined that Plaintiff had 4 a severe limitation in her ability to perform activities within a schedule, maintain 5 regular attendance, and be punctual within customary tolerances without special 6 supervision. Dr. Bowes also opined Plaintiff had a marked limitation in her ability 7 to (a) understand, remember, and persist in tasks by following detailed 8 instructions, (b) communicate and perform effectively in a work setting, 9 (c) maintain appropriate behavior in a work setting, and (d) complete a normal 10 workday and workweek without interruptions from psychologically based 11 symptoms. 27 12 In June 2019, the state agency hired a consulting psychologist to review 13 Dr. Bowes’ report. 28 The reviewing psychologist agreed that medical evidence 14 supported Dr. Bowes’ diagnoses as well as the severity and functional limitations 15 she assessed. 29 16 // 17 18 19 20 21 22 23 25 AR 889–900. 26 AR 892. 27 AR 892. 28 AR 905–06. 29 AR 905–06. ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 1 a. 2 3 ALJ’s Finding & Analysis The entirety of the ALJ’s analysis regarding Dr. Bowes’ medical opinion was as follows: 4 I find the opinion of Tamsyn Bowes, Psy.D., unpersuasive insofar as the claimant has as much as marked limitations due to her mental health symptoms, as this is out of proportion to the type and degree of treatment needed and mental status examination findings showing no significant deficits in fund of knowledge, abstract thought, concentration, and memory skills. 30 5 6 7 b. Supportability Factor 8 Despite being required to expressly consider supportability as a factor, the 9 ALJ failed to do so here. 31 This constitutes reversible legal error. 32 In determining 10 whether to affirm an ALJ’s decision, the Court is constrained to the reasons and 11 12 13 14 15 16 17 18 19 20 21 22 23 30 AR 21 (cleaned up). 31 An ALJ must consider and articulate how persuasive she found each medical opinion, including whether the medical opinion was consistent with and supported by the record. 20 C.F.R. §§ 404,1520c(a), (b), (c), 416.920c(a), (b), (c); Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 32 See 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1) (“[W]e will explain how we considered the supportability and consistency factors . . . .”); see also Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) (holding that the ALJ’s failure to consider the applicable factors under the prior regulations, including the supportability of the opinion, constituted reversible legal error). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 1 supporting explanation offered by the ALJ. 33 And the ALJ did not articulate his 2 persuasiveness findings or cite to supporting evidence in a way that would permit 3 the Court to determine whether such findings are supported by substantial 4 evidence. 34 Moreover, as discussed below, even if this error were deemed harmless, 5 additional errors require reversal. 6 c. 7 Consistency Factor The ALJ failed to explain how normal showings in “fund of knowledge, 8 abstract thought, concentration, and memory skills” could undermine Dr. Bowes’ 9 opinions regarding Plaintiff’s abilities in other areas of functioning, such as 10 maintaining regular attendance, communicating and performing effectively in a 11 work setting, maintaining appropriate workplace behavior, and completing a 12 normal work schedule without interruptions from mental-health symptoms. 35 13 14 15 16 17 18 19 20 21 22 23 33 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (recognizing court review is constrained to the reasons the ALJ gave). 34 See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988); Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require the ALJ to build an accurate and logical bridge from the evidence to her conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”). 35 See Embrey, 849 F.2d at 421–22 (requiring the ALJ to identify the evidence supporting the found conflict to permit the Court to meaningfully review the ALJ’s ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 1 Likewise, the ALJ neither explained why Plaintiff’s ongoing mental-health 2 counseling and prescribed medications were inconsistent with Dr. Bowes’ opinion, 3 nor indicated what “type and degree” of treatment would be necessary to be 4 considered “proportionate” to the limitations assessed. 36 5 d. 6 Type & Degree of Treatment Throughout his persuasiveness analysis (not just when assessing Dr. Bowes’ 7 medical opinion), the ALJ relied on “the type and degree of treatment needed, 8 including ongoing therapy and the claimant’s prescribed medication.” 37 A 9 claimant’s course of treatment, including an inadequately explained failure to seek 10 treatment, is a relevant factor for the ALJ to consider when assessing the 11 claimant’s symptom reports. 38 But the ALJ did not articulate any evidence 12 suggesting someone with the asserted impairments would receive a different type 13 14 15 16 17 18 19 20 21 22 23 finding); see also Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (finding the ALJ erred by rejecting the claimant’s symptoms resulting from anxiety, depressive disorder, and PTSD on the basis that claimant performed cognitively well during examination and had a generally pleasant demeanor). 36 Embrey, 849 F.2d at 421–22 (“The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.”). 37 AR 21. 38 20 C.F.R. §§ 404.1529(c)(3)–(4) 416.929(c)(3)–(4). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 1 or degree of treatment, nor does the Court’s own review of the record reveal any 2 such evidence, which would likely need to be introduced through a medical expert 3 qualified to assess the medications and other treatment methods at issue. 39 4 Additionally, “it is a questionable practice to chastise one with a mental 5 impairment for the exercise of poor judgment in seeking rehabilitation.” 40 When 6 an ALJ relies on a lack of treatment to discount medical evidence and/or the 7 claimant’s symptom reports, the ALJ cannot ignore probative evidence in the 8 record indicating an alternative explanation for why the claimant did not pursue 9 additional treatment. 41 Here, the record contained evidence suggesting that 10 Plaintiff’s “anxiety and mistrust makes it difficult to find appropriate treatment, as 11 she has significant anxiety about taking medications and a variety of anxieties in 12 13 14 15 16 17 18 19 20 21 22 23 39 See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (recognizing that an ALJ is “not qualified as a medical expert” and should not go outside the record for purposes of “making his own exploration and assessment as to the claimant’s [mental] condition”). 40 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1209–1300 (9th Cir. 1999). 41 See Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989); SSR 18-3p: Titles II and XVI: Evaluation of Symptoms in Disability Claims. ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 1 trusting health providers.” 42 Absent additional evidence, or at least a more 2 detailed and meaningful explanation for why the current evidence of record shows 3 Plaintiff’s mental-health treatment was inconsistent with the evidence being 4 rejected, “the type and degree of treatment needed” was not a valid basis for 5 assessing the persuasiveness of medical opinions. 6 2. 7 From August 2018 through December 2020, Plaintiff’s treating counselor, Amy Zook, MS 8 Amy Zook, MS, supplied several forms and letters regarding Plaintiff’s mental 9 impairments, the associated symptoms, and their impact on Plaintiff’s functional 10 abilities. 43 Ms. Zook indicated Plaintiff’s symptoms could vary but that Plaintiff’s 11 mental impairments—primarily bouts of increased depression—would present 12 several significant limitations for purposes of fulltime employment. For instance, 13 as Plaintiff points out on appeal, Ms. Zook opined that Plaintiff had marked to 14 severe limitations in her ability to 15 (a) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, (b) interact appropriately with the general public, 16 17 18 19 20 21 22 23 42 See AR 1302 (Sept. 2019); see also, e.g., AR 1306 (June 2019: noting “anxiety about prescriptions”). 43 See AR 1314–16 (Aug. 2018 Mental-RFC Assessment); AR 1304–11 (June 2019 Function Report – Adult – Third Party); AR 1301–03 (Sept. 2019 letter); AR 1273– 76 (Aug. 2020 Mental Source Statement); AR 1262–65 (Dec. 2020 Mental Source Statement). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 1 (c) understand and remember detailed instructions, (d) work in coordination with or proximity to others without being distracted by them, (e) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, and (f) get along with co-workers or peers without distracting them or exhibiting behavioral extremes. 44 2 3 4 5 6 Ms. Zook also opined that Plaintiff would likely be off task 21–30% of the time 7 during a normal workweek and was likely to miss an average of four or more days 8 of work per month. 45 Ms. Zook repeatedly explained that despite periods of 9 improvement and higher levels of functioning, Plaintiff was still unable to 10 consistently perform and was likely to miss “substantial amounts of time at work” 11 due to episodes of increased depression and/or anxiety. 46 12 In finding Ms. Zook’s opinions unpersuasive, the ALJ found the opined 13 limitations were “out of proportion to the type and degree of treatment needed and 14 mental status examination findings showing no significant deficits in fund of 15 knowledge, abstract thought, concentration, and memory skills.” 47 The ALJ 16 17 18 19 20 21 22 23 44 ECF No. 12 at 16–17 (formatting altered) (citing AR 1262–63, 1273–74). 45 AR 1264, 1275. 46 See, e.g., AR 1265. 47 See AR 21 (explaining Ms. Zook’s opinions were discounted for the same reasons as Dr. Bowes’ opinion). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 1 noted—without going into detail—that Plaintiff’s treatment included ongoing 2 therapy and prescribed medication. 3 The ALJ’s reasons for discounting Ms. Zook’s opinions suffer from the same 4 flaws as those discussed above regarding Dr. Bowes’ opinion. 48 Despite being 5 required to do so, the ALJ failed to expressly consider the supportability factor 6 while assessing Ms. Zook’s opinions. 49 The ALJ also failed to explain why either 7 Plaintiff’s level of care or the cited mental-status findings (showing normal results 8 for “fund of knowledge, abstract thought, concentration, and memory skills”) are 9 inconsistent with the limitations assessed by Ms. Zook, particularly those 10 limitations that Ms. Zook clearly tied to Plaintiff experiencing episodes of increased 11 depression and/or other mood problems. 12 13 14 15 16 17 18 19 20 21 22 23 48 As the ALJ’s decision and the parties’ arguments all appear to treat Ms. Zook as a medical source, the Court presumes that Ms. Zook, who is both Plaintiff’s counselor and the program director for a wellness house, is a licensed healthcare worker who qualifies as a medical source. See 20 C.F.R. §§ 416.902(i), 404.1502(i) (each defining “medical source”). Regardless, the Court’s decision would be the same even if Ms. Zook were to qualify only as a “nonmedical source.” See id. §§ 416.902(j), 404.1502(j). 49 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 1 3. 2 Although neither party addressed the issue, the Court notes that the ALJ Rebekah Cline, PsyD 3 failed to make the requisite persuasiveness findings for the psychological 4 evaluation that was conducted by Rebekah Cline, PsyD, on January 21, 2015. 50 5 This medical opinion predates the alleged onset date of February 1, 2016, but the 6 ALJ found persuasive Dr. Genthe’s opinion, which was rendered several months 7 earlier. As such, on remand, the ALJ should expressly address Dr. Cline’s medical 8 opinion. 9 4. Consequential Error 10 The ALJ erred by failing to meaningfully explain his consideration of the 11 medical-opinion evidence and why he discounted the medical opinions at issue. 12 This leaves the Court unable to assess whether the ALJ’s decision is supported by 13 substantial evidence. Further, the vocational-expert testimony establishes that 14 Plaintiff would have been found disabled if the assessed RFC included the 15 additional limitations opined by Dr. Bowes and/or Ms. Zook. 51 The ALJ’s errors are 16 17 18 19 20 21 22 23 50 See AR 941–45. The ALJ did, however, cite this psychological evaluation while reciting Plaintiff’s treatment history. See AR 19 (citing AR 943). 51 See, e.g., AR 69 (vocational expert testifying that employers typically “accept no more than one absence per month”). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 1 therefore consequential and warrant reversal with further proceedings on 2 remand. 52 3 On remand, the ALJ must meaningfully articulate and explain his 4 consideration of the supportability and consistency factors as to each medical 5 source, including Dr. Cline. 53 If the ALJ again finds a medical opinion less 6 persuasive (or otherwise discounts it) based on a perceived inconsistency, the ALJ 7 must identify the inconsistency and explain why it tends to undermine the medical 8 opinion at issue. 54 The ALJ should take special care to explain his reasoning when 9 relying upon normal findings in mental-status examinations to discount asserted 10 mental-health limitations. 55 11 12 13 14 15 16 17 18 19 20 21 22 23 52 See Molina, 674 F.3d at 1115. See also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 53 See 20 C.F.R. §§ 404,1520c, 416.920c; Woods, 32 F.4th at 792. 54 See Ghanim, 763 F.3d at 1164; Embrey, 849 F.2d at 421–22 (requiring the ALJ to identify the evidence supporting the found conflict to permit the court to meaningfully review the ALJ’s finding). 55 See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (comparing psychologist’s mental-health findings against findings from other mental-health professionals); Diedrich v. Berryhill, 874 F.3d 634, 641 (9th Cir. 2017) (noting that courts do “not necessarily expect” someone who is not a mental-health professional to document observations about the claimant’s mental-health symptoms); Orn v. Astrue, 495 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 1 If the ALJ again discounts a medical opinion based on the type and degree of 2 Plaintiff’s treatment, the ALJ must explain how substantial evidence in the record 3 indicates a different type and/or greater level of treatment would be expected if the 4 medical opinion were fully credited. In such event, the ALJ must also expressly 5 address whether, and to what extent, Plaintiff’s mental impairments are 6 themselves responsible for a lack of increased treatment. To this end, if the ALJ 7 finds it would be helpful, the Court recommends the ALJ call a mental-health 8 medical expert who is qualified to assess what courses of treatment, including the 9 type and dosage of medications prescribed, could be reasonably expected when 10 presented with similar circumstances. 11 B. Symptom Reports: Plaintiff shows error. 12 The ALJ’s weighing of the medical evidence necessarily impacted his 13 sequential analysis, and the Court need not analyze Plaintiff’s remaining claims. 14 Even so, to provide additional guidance on remand, the Court briefly addresses the 15 Commissioner’s assertion that, because of evidence of malingering, the ALJ was 16 not required to provide specific, clear, and convincing reasons for rejecting 17 Plaintiff’s symptom reports. 56 The Court disagrees. 18 19 20 21 22 23 F.3d 615, 634 (9th Cir. 2007) (requiring examination notes to be read in their proper context). 56 See ECF No. 13 at 5. See also Ghanim, 763 F.3d at 1163 (holding the clear-and- convincing standard applies absent affirmative evidence of malingering). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 1 The Commissioner is correct that under Ninth Circuit precedent, if the 2 record contains “affirmative evidence” of malingering, the clear-and-convincing 3 standard of review will not apply to the ALJ’s assessment of a claimant’s symptom 4 reports. 57 The Commissioner also accurately points out that, here, the ALJ noted 5 Plaintiff “was assessed with probable symptom exaggeration, ADD/ADHD by 6 history, anxiety disorder . . .” 58 Yet, this assessment was written in 2012 by 7 Dr. Toews, whom the ALJ found unpersuasive. Even more, Dr. Toews’ assessment 8 of “probable symptom exaggeration” does not appear to be based on any objective 9 evidence in the record. In support, Dr. Toews merely explained, “She was a bit 10 impatient. She does appear to be an opportunist. Disability seeking is 11 suspected.” 59 But Dr. Toews was not able to review any of Plaintiff’s records, and it 12 does not appear that Dr. Toews administered any kind of test designed to measure 13 objective signs of malingering, exaggeration, or the like. 14 Moreover, Dr. Toews’ suspicion regarding symptom exaggeration is 15 seemingly contradicted by other medical findings. In November 2104, Dr. Genthe 16 wrote that Plaintiff “appeared relatively genuine in her responses,” explaining that 17 the results of the administered Personality Assessment Inventory “did not indicate 18 19 20 21 22 23 57 See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 n.1 (9th Cir. 2008). 58 AR 18; see also AR 448. 59 AR 447. ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 1 an attempt to portray herself in a more negative light than warranted.” 60 In 2 January 2015, Dr. Cline noted that Plaintiff’s results on an administered Rey-15 3 test “minimizes the likelihood that she is malingering at this time.” 61 Similarly, in 4 June 2019, Dr. Bowes found a subsequent Rey-15 test “suggests no evidence of 5 malingering,” and Plaintiff “seemed open and honest in presentation.” 62 6 Given the context of the entire record—and the ALJ’s rejection of Dr. Toews’ 7 opinion—the Court finds Dr. Toews’ conjecture regarding Plaintiff’s “probable 8 symptom exaggeration” amounts to neither “affirmative evidence” of malingering 9 nor substantial evidence that could rationally support a malingering finding. 63 10 11 12 13 14 15 16 17 18 19 20 21 22 23 60 AR 931. AR 933. 61 AR 942. 62 AR 891, 893. 63 Cf. Austin v. Saul, 818 F. App'x 725, 728 (9th Cir. 2020) (unpublished) (“We thus do not consider [an] unexplained notation to constitute affirmative evidence of malingering. Nor do we equate a claimant's possible exaggerations regarding the severity of his symptoms with affirmative evidence of malingering.”); cf. also id. at 729 (Vandyke, C.J. concurring in part and dissenting in part) (“I diverge from the majority in this case because I believe the review of the ALJ's consideration of [the claimant]'s testimony should be for ‘substantial evidence’ because of the affirmative evidence of malingering in the record.”); Makoviney v. Saul, 830 F. App'x 192, 195 (9th Cir. 2020) (unpublished) (applying the substantial-evidence standard to an ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 1 On remand, if the ALJ discount’s Plaintiff’s symptom testimony because of 2 symptom exaggeration and/or any other form of malingering, the ALJ shall clearly 3 state as much and explain how the record supports such a finding. If the ALJ does 4 not make an express finding of malingering and again discounts Plaintiff’s 5 symptoms on remand, the ALJ must articulate clear and convincing reasons for 6 doing so. 64 General findings are insufficient; the ALJ must identify what 7 symptoms are being discounted and what evidence undermines these symptoms. 65 8 Additionally, when assessing Plaintiff’s mental health symptoms, the ALJ is 9 encouraged to expressly address the issue of waxing and waning symptoms. 10 V. 11 12 Conclusion Plaintiff establishes the ALJ reversibly erred. However, questions of fact remain; the record does not clearly establish that Plaintiff is disabled. As such, the 13 14 15 16 17 18 19 20 21 22 23 ALJ’s finding of malingering); Schow v. Astrue, 272 F. App'x 647, 651–52 (9th Cir. 2008) (unpublished) (concluding that examination findings which were “mixed at best” did not constitute affirmative evidence of malingering). 64 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 65 Id. (quoting Lester, 81 F.3d at 834, and Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why he discounted claimant’s symptom claims)). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21 1 Court remands this matter for further proceedings. 66 On remand, the ALJ is to 2 conduct the sequential evaluation anew, beginning at step two, consistent with this 3 order. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. 6 Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 7 2. 8 The Commissioner’s Motion for Summary Judgment, ECF No. 13, is DENIED. 9 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 10 4. The decision of the ALJ is REVERSED and this matter is 11 REMANDED to the Commissioner of Social Security for further 12 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 13 5. 14 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 15 The case shall be CLOSED. provide copies to all counsel. DATED this 16th day of February 2023. 16 17 _____________ EDWARD F. SHEA Senior United States District Judge 18 19 20 21 22 23 66 See Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017); Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22
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