Adeoye v. Commissioner of Social Security, No. 2:2017cv00322 - Document 17 (E.D. Wash. 2018)

Court Description: ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; denying Defendant's 15 Motion for Summary Judgment. Signed by Judge Stanley A Bastian. (AY, Case Administrator)

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Adeoye v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Dec 27, 2018 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 KARI A. Plaintiff, 10 11 No. 2:17-CV-00322-SAB v. ORDER GRANTING PLAINTIFF’S 12 13 COMMISSIONER OF SOCIAL 14 SECURITY ADMINISTRATION, MOTION FOR SUMMARY JUDGMENT Defendant. 15 16 17 Before the Court are the parties’ motions for summary judgment, ECF Nos. 14 and 18 15. The motions were heard without oral argument. For the reasons set forth below, the 19 Court GRANTS plaintiff’s motion, DENIES defendants’ motion, and remands for an award 20 of benefits. 21 This case presents two main questions. First is whether or not the ALJ improperly 22 discredited Plaintiff’s symptom testimony. The second issue is whether the ALJ erred by 23 discrediting the expert testimony of Plaintiff’s treating physicians. This case originally went 24 before a magistrate judge in 2013, and the Parties submitted a stipulated motion for remand. 25 On remand, the ALJ once again discredited Plaintiff’s testimony and the medical opinions 26 of her treating physicians, without altering those sections of the order. The reasons provided 27 for discrediting the testimony were error, and this court remands for an award of benefits 28 under the credit-as-true doctrine. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 Dockets.Justia.com 1 ADMINISTRATIVE PROCEEDINGS 2 On June 24, 2011, Plaintiff filed an application for social security insurance benefits. 3 She alleged an onset date of May 1, 2007. Her application was denied initially and on 4 reconsideration. On April 15, 2013, she testified at a hearing appealing that denial before an 5 ALJ. 6 The ALJ discredited the testimony of Plaintiff’s treating physicians, primarily 7 because they did not treat Plaintiff during the benefits period, but also because they were 8 inconsistent with other evidence in the record. Further, The ALJ discredited Plaintiff’s self- 9 reported symptom testimony, in part because it was inconsistent with that same evidence. 10 The ALJ denied benefits, finding Plaintiff not disabled, on May 3, 2013. 11 Plaintiff appealed her denial to the Social Security Commission, which upheld the 12 denial on November 7, 2014. Plaintiff appealed that denial for judicial review and moved 13 for summary judgment. Rather than file a cross-motion, the Acting Commissioner at that 14 time submitted a stipulated motion for remand for a new hearing and reconsideration. See 15 King v. Colvin, 2:15-cv-0001-VEB, ECF No. 19 (Sept. 23, 2015.) 16 The ALJ again denied benefits after a new hearing, with almost identical rationales 17 for discrediting Plaintiff’s symptom testimony and the medical opinions of her treating 18 physicians in the new order dated August 25, 2016. The vast majority of the 2016 order is 19 identical to the 2013 order, including a number of typographical errors, suggesting that most 20 of the 2016 order was pasted from the 2013 denial.1 Plaintiff appealed this new denial to the 21 Commission, was denied, and timely appealed to this Court under 42 U.S.C. § 405(g). 22 SEQUENTIAL EVALUATION PROCESS 23 The Social Security Act defines disability as the “inability to engage in any substantial 24 gainful activity by reason of any medically determinable physical or mental impairment 25 which can be expected to result in death or which has lasted or can be expected to last for a 26 continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). A claimant 27 Most notably, the assertion that “Dr. Cox was her medical treatment provider, not her medical treatment provider,” is contained in identical paragraphs in both orders. 28 1 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 2 1 shall be determined to be under a disability only if the claimant’s impairments are of such 2 severity that the claimant is not only unable to do his previous work, but cannot, considering 3 claimant’s age, education, and work experience, engage in any other substantial gainful 4 work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). 5 The Commissioner has established a five-step sequential evaluation process for 6 determining whether a claimant meets the definition of disabled under the Social Security 7 Act. 20 C.F.R. § 404.1520(a)(4); Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 8 2006). 9 At step one, the ALJ must determine whether the claimant is presently engaged in 10 “substantial gainful activity.” 20 C.F.R. § 404.1520(b). Substantial gainful activity is 11 defined as significant physical or mental activities done or usually done for profit. 20 C.F.R. 12 § 404.1572. If the individual is engaged in substantial gainful activity, he or she is not 13 disabled. 20 C.F.R. § 404.1571. If not, the ALJ proceeds to step two. 14 At step two, the ALJ must determine whether the claimant has a severe medically 15 determinable impairment, or combination of impairments, that significantly limits the 16 claimant’s physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If 17 the claimant does not have a severe medically determinable impairment or combination of 18 impairments, he or she is not disabled. If the ALJ finds the claimant does have a severe 19 impairment or combination of impairments, the ALJ proceeds to step three. 20 At step three, the ALJ must determine whether any of the claimant’s severe 21 impairments “meets or equals” one of the listed impairments acknowledged by the 22 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 20 C.F.R. 23 §§ 404.1520(d), 404.1525, 404.1526; 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If 24 the impairment meets or equals one of the listed impairments, the claimant is per se disabled 25 and qualifies for benefits. If not, the ALJ proceeds to the fourth step. 26 Before considering step four, the ALJ must determine the claimant’s “residual 27 functional capacity.” 20 C.F.R. § 404.1520(e). An individual’s residual functional capacity 28 is his or her ability to do physical and mental work activities on a sustained basis despite ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 3 1 limitations from his impairments. 20 C.F.R. § 1545(a)(1). In making this finding, the ALJ 2 must consider all of the relevant medical and other evidence. 20 C.F.R. § 404.1545(a)(3). 3 At step four, the ALJ must determine whether the claimant’s residual functioning 4 capacity enables the claimant to perform past relevant work. 20 C.F.R. § 404.1520(e)-(f). If 5 the claimant can still perform past relevant work, he or she is not disabled. If the ALJ finds 6 the claimant cannot perform past relevant work, the analysis proceeds to the fifth step. 7 At step five, the burden shifts to the Commissioner to prove the claimant is able to 8 perform other work in the national economy, taking into account claimant’s age, education, 9 work experience, and residual functioning capacity. 20 C.F.R. § 404.1520(g). To meet this 10 burden, the Commissioner must establish (1) the claimant is capable of performing other 11 work; and (2) such work exists in significant numbers in the national economy.” 20 C.F.R. 12 § 404.1560(c)(2); Beltran v. Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012). 13 STANDARD OF REVIEW 14 A district court’s review of a final decision of the Commissioner is governed by 42 15 U.S.C. § 405(g). The scope of review under Section 405(g) is limited, and the 16 Commissioner’s decision will be disturbed “only if the ALJ’s decision was not supported 17 by substantial evidence in the record as a whole or if the ALJ applied the wrong legal 18 standard.” Shaibi v. Berryhill, 870 F.3d 874, 878 (9th Cir. 2017). “The findings of the 19 Commissioner of Social Security as to any fact, if supported by substantial evidence, shall 20 be conclusive.” 42 U.S.C § 405(g). “Substantial evidence” is defined as “such relevant 21 evidence as a reasonable mind might accept as adequate to support a conclusion.” Molina v. 22 Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). However, when determining whether 23 substantial evidence exists, a reviewing court “must consider the entire record as a whole, 24 weighing both the evidence that supports and the evidence that detracts from the 25 Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of 26 supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 27 A district court “may not reverse and ALJ’s decision on account of an error that is 28 harmless.” Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 4 1 nondisability determination.” Id. at 1115. The burden of showing an error is harmful 2 generally falls upon the party appealing the ALJ’s decision. Shinseki v. Sanders, 556 U.S. 3 396, 409-10 (2009). 4 STATEMENT OF FACTS 5 At the time of the hearing in 2013, Plaintiff was 27 years old. When she was 17, in 6 2003, she was involved in a serious traffic accident. A mattress fell off a truck traveling in 7 front of her on a two-lane highway. A car drove over the mattress and careened into a ditch 8 to the left of the passing lane. Another driver parked his car in what he thought was the 9 shoulder to assist the driver in the ditch. A truck traveling in the passing lane swerved in 10 front of Plaintiff to avoid the good Samaritan’s parked car, and Plaintiff’s car was subducted 11 under the truck. The front of her car and her skull were crushed, and she fell into a week- 12 long-coma. When she awoke, she was blind in one eye and suffered from aphasia, spinal 13 pain, anxiety and depression, and cognitive impairments. 14 She was discharged from inpatient care in late 2003. At that time, her functional 15 capacity was evaluated as severely limited, so much so that Plaintiff was directed not to take 16 short trips on public transportation without assistance. In early 2004, after a few weeks of 17 outpatient care, she received a mental health exam from St. Luke’s Rehabilitation Institute, 18 which did not indicate any substantial cognitive impairments. ECF No. 9, Ex. 12F, at 1030- 19 36. She returned to school, but not to her part-time job at McDonald’s, due to anxiety attacks 20 stemming from the accident and the affect that it had on her reasoning 21 Plaintiff began working a series of jobs from 2005 to 2007. Her termination from her 22 job in 2007 due to absences stemming from an illness marks the start of her alleged onset 23 date. Plaintiff alleges that the termination, and the difficulties she had holding a job from 24 2005 to 2007, were due to residual physical and cognitive limitations stemming from the 25 2003 accident. 26 Later in 2007 she moved to Germany with her partner, where she remained until after 27 her date last insured in 2009. Plaintiff was treated at Landstuhl Army Medical Center during 28 that period of time. Most of the Landstuhl treatment notes are found in ECF No. 8. They ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 5 1 are difficult to read due to the poor scan quality, but include, most relevantly, two cognitive 2 functioning tests. 3 In May of 2010, Plaintiff underwent a “formal assessment of complex communication 4 and reasoning.” ECF No. 8-8, Ex. 5F at 156. She completed a Functional Assessment of 5 Verbal Reasoning and Executive Struggles (FAVRES) and a Test of Everyday Attention 6 (TEA.) She demonstrated “grossly intact functional reasoning and judgment,” however, she 7 “did demonstrate delays in processing, difficulty with thought formulation, and a lack of 8 higher level divergent thinking/reasoning.” Id. at 157. The treating speech pathologist, 9 Amanda Dyrek, concluded that the FAVRES results were “consistent with [Plaintiff’s] 10 diagnosed injury and . . . complaints.” Id. 11 The TEA results likewise indicated that Plaintiff “may have difficulty with sustained 12 attention during tasks of lengthy duration and possibly some effort required with auditory 13 selective attention,” and the results were “consistent with [Plaintiff’s] medical history of 14 head injury.” Id., at 158. Plaintiff demonstrated sustained improvement over the next few 15 months. She took a contextual memory test on September 21, 2010. ECF No. 8-8, Ex. 5F at 16 15. That test appears to indicate normal immediate and delayed recall. Id. However, the 17 test performed is not diagnostic, and there is no clear summary of the results. 18 When Plaintiff returned to the United States she began treatment with new doctors, 19 Dr. Peter Endyke and Dr. Lylanya Cox. Those treatment notes indicate a recommendation 20 that Plaintiff apply for social security benefits, and are consistent with Plaintiff’s self-report 21 of cognitive limitations, as well as chronic pain and depression and anxiety. THE ALJ’S FINDINGS 22 23 At step one, the ALJ found Plaintiff was not engaged in substantial gainful activity 24 during the benefits period of May 1, 2007 through her date last insured of June 30, 2009. 25 Administrative Record (AR) 32. 26 27 At step two, the ALJ found Plaintiff had the following severe impairments: left eye blindness. AR 32. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 6 1 At step three, the ALJ found Plaintiff does not have an impairment or combination 2 of impairments that meets or medically equals the severity of one of the listed impairments 3 in 20 C.F.R. § 404 Subpt. P. App. 1 (citing 20 C.F.R. §§ 416.920(d), 416.925 and 416.926). 4 AR 32. 5 Before reaching step four, the ALJ found Plaintiff has the residual functional capacity 6 to perform a full range of work at all exertional levels as defined in 20 C.F.R. § 416.967(b), 7 subject to the following limitations: an inability to do work requiring bilateral visual acuity, 8 and an inability to do fine detailed works. AR. 27. 9 At step four the ALJ found Plaintiff able to perform past relevant work as an assistant 10 manager during the benefits period (citing 20 C.F.R. § 404.1565). AR 39. As a result, the 11 ALJ did not reach step five, and found that Plaintiff was not disabled during the benefits 12 period. 13 ISSUES FOR REVIEW 14 1. Whether the ALJ improperly rejected Plaintiff’s symptom claims; 15 2. Whether the ALJ improperly discredited medical opinion evidence? 16 DISCUSSION 17 I. Whether the ALJ Erred by Discrediting Plaintiff’s Testimony? 18 Plaintiff claims The ALJ improperly discounted her testimony concerning the severity 19 of her impairments. At the hearing, Plaintiff made the following statements concerning the 20 severity of her alleged physical and mental symptoms: • She suffers and suffered from short- and long-term memory loss, difficulty 21 22 concentrating, and mental fatigue. AR 56-62. • She has frequent, chronic migraines, roughly three times a week, which abate after 23 24 30 seconds with medication. AR 64. • She suffers from depression and anxiety. AR 64-65. 25 • She suffers from back pain. AR 67. 26 • She experiences difficulty walking. AR 70. 27 28 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 7 1 a. The ALJ’s Credibility Determination 2 An ALJ engages in a two-step analysis to determine whether a claimant’s testimony 3 regarding subjective pain or symptoms is credible. Garrison v. Colvin, 759 F.3d 995, 1014 4 (9th Cir. 2014). “First, the ALJ must determine whether the claimant has presented objective 5 medical evidence of an underlying impairment ‘which could reasonably be expected to 6 produce the pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 7 1028, 1036 (9th Cir. 2007)). 8 In this analysis, the claimant is not required to show “that her impairment could 9 reasonably be expected to cause the severity of the symptom she has alleged; she need only 10 show that it could reasonably have caused some degree of that symptom.” Smolen v. Chater, 11 80 F.3d 1273, 1282 (9th Cir. 1996). Nor must a claimant produce “objective medical 12 evidence of the pain or fatigue itself, or the severity thereof.” Id. 13 If the claimant satisfies the first step of this analysis, and there is no evidence of 14 malingering, “the ALJ can reject the claimant’s testimony about the severity of her 15 symptoms only by offering specific, clear and convincing reasons to do so.” Smolen, 80 F.3d 16 at 1281. The ALJ determined Plaintiff satisfied the first step in this inquiry. AR 34. 17 However, the ALJ found Plaintiff’s statements concerning the intensity, persistence, and 18 limiting effects of these symptoms not entirely credible for the following reasons. 19 First, the ALJ found that a “gap” in medical treatment records from 2004 to 2010 20 suggested that the impairments complained of did not exist from 2004 to 2010. ECF No. 21 9.2, at 17. The ALJ narrowed the inquiry into medical treatment records from the benefits 22 period. Id. (“There are very few treatment records for 2007 to 2009.”) 23 Second, the ALJ noted inconsistencies between what medical treatment records there 24 were and the alleged impairments. Notably, shortly after the 2003 automobile accident, 25 Plaintiff underwent cognitive rehabilitation, and the testing associated with the culmination 26 of that treatment indicated no significant cognitive or other mental health impairment. 27 Finally, the ALJ noted inconsistencies between the Plaintiff’s stated impairments and 28 her daily activities, as testified to by Plaintiff and described in a third-party function report ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 8 1 2 completed by Plaintiff’s mother. i. The Use of a Treatment “Gap” to Discredit Plaintiff’s Testimony 3 The first reason the ALJ gave for rejecting Plaintiff’s symptom testimony is not 4 supported by the record as a whole. It is true that an ALJ may justify the rejection of a 5 claimant’s testimony regarding physical ailments due to a limited course of treatment for 6 those conditions. See, e.g., Burch v. Barnhart, 400 F.3d 676, 681, (9th Cir. 2005); Meanal 7 v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). This is because the ALJ can reasonably infer 8 that someone suffering from disabling pain or physical ailments would very likely seek 9 medical treatment, and thus the failure to pursue treatment gives rise to questions about the 10 existence or severity of the ailments. Id. 11 Here, the record demonstrates that Plaintiff underwent extensive treatment to address 12 precisely the complained-of conditions. She was hospitalized for two weeks, then underwent 13 treatment at an in-patient rehabilitation center for three weeks, before being discharged with 14 further outpatient treatment. AR 1297. Her self-reported symptoms of back pain, depression, 15 anxiety, reduced cognitive functioning, difficulty walking, and decreased stamina are all 16 confirmed by the treatment records from that period. Reaching her maximum medical 17 recovery should not preclude a claimant’s subsequent recovery, provided that she was 18 disabled for the benefits period notwithstanding the improvement. 19 ii. Inconsistencies Between Symptom Testimony and Medical Evidence. 20 The second reason, inconsistencies between Plaintiff’s symptom claims and the 21 objective medical evidence, constitutes a “specific, clear and convincing reason” for 22 discounting the symptom claims. See Smolen, 80 F.3d at 1281. An ALJ must consider 23 objective medical evidence when determining the intensity and persistence of a claimant’s 24 alleged symptoms. See 20 C.F.R. § 416.929(c)(2). However, an ALJ will not reject a 25 claimant’s statements “solely because the available medical evidence does not substantiate 26 [a claimant’s] statements.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although 27 lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a 28 factor the ALJ can consider in his credibility analysis”). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 9 1 Ninth Circuit case law, on the other hand, makes clear that “an ALJ may reject a 2 claimant’s statement about the severity of his symptoms and how they affect him if those 3 statements are inconsistent with or contradicted by the objective medical evidence.” 4 Robbins v. Social Sec. Admin., 466 F.3d 880, 887 (9th Cir. 2006) (emphasis added); Johnson 5 v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). 6 One of The ALJ’s alleged “inconsistencies” is simply not true. The ALJ asserts that 7 “mental fatigue” is not established in the record. To the contrary, the very medical evidence 8 that The ALJ cites establishes mental fatigue. ECF No. 9, Ex. 12F at 5. 9 The second alleged inconsistency is between Plaintiff’s testimony regarding her post- 10 accident mnemonic symptoms and the record. Plaintiff stated that during the benefits period, 11 in 2007, she suffered from short-and long-term memory loss, severe enough that she could 12 not remember what she ate for dinner the day before or whether or not she had changed her 13 child’s diaper. AR at 57-58. However, her neuropsychological evaluation completed in 14 early 2004 indicates that her only significant impairments at that time were cognitive fatigue 15 and anxiety related decompensation. ECF No. 9, Ex. 12F at 5. In the summary of that testing, 16 the treating doctor reported that Plaintiff “reported no significant changes in memory 17 functioning.” ECF No. 9, Ex. 12F at 11. The ALJ found these tests were inconsistent with 18 Plaintiff’s testimony and discredited it. ECF No. 9.2. 19 The Ninth Circuit has repeatedly emphasized that “while discussing mental health 20 issues, it is error to reject a claimant's testimony merely because symptoms wax and wane 21 in the course of treatment.” Garrison, 759 F.3d at 1017, citing Holohan v. Massanari, 246 22 F.3d 1195, 1205 (9th Cir. 2001). “Cycles of improvement and debilitating symptoms are a 23 common occurrence, and in such circumstances it is error for an ALJ to pick out a few 24 isolated instances of improvement over a period of months or years and to treat them as a 25 basis for concluding a claimant is capable of working.” Garrison, at 1017. Reports of 26 improvement in the context of mental health issues must be interpreted with an 27 understanding of the patient’s overall well-being and the nature of her symptoms. Id. 28 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 1 The Ninth Circuit identified two chief sources of error when interpreting mental 2 health testing, and set forth two corresponding interpretative aids. First, the Ninth Circuit 3 recognized that symptoms wax and wane, and thus mental health testing must be interpreted 4 in light of the entire record. Garrison, 759 F.3d at 1017. Second, the Ninth Circuit 5 recognized that “doing well” in a clinical setting does not necessarily reflect an ability to 6 enjoy success in a workplace, and thus significant weight is given to the absence of a medical 7 expert’s testimony regarding the patient’s capacity to work. Id, at 1018-19. 8 In this case, the lion’s share of testing indicates that Plaintiff’s cognitive functioning 9 was prone to waxing and waning, and there are multiple doctor’s notes indicating that she 10 was unable to work. In the weeks prior to the St. Luke’s 2004 WAIS exam, she was in in- 11 patient treatment. When discharged, she was found unable to work or return to school, ECF 12 No. 8-9, Ex. 8F at 23, and was required to have “24 hour supervision by an adult,” id., at 31. 13 In May of 2010, Plaintiff completed the FAVRES, with testing consistent with her self- 14 reported cognitive and mnemonic limitations. ECF No. 8-8, Ex. 5F at 156-59. Upon 15 Plaintiff’s return to the United States, her treating doctors Dr. Endyke and Dr. Cox both 16 found marked to severe cognitive limitations. See Infra, § II(a),(c). 17 Even the two pieces of evidence cited by the ALJ demonstrate inconsistency in 18 Plaintiff’s cognitive capacity. The WAIS testing was performed over three sessions because 19 of Plaintiff’s limitations. ECF No. 9, Ex. 12F at 11. During her first session, on December 20 10, 2003, “her behavior was remarkable for poor self-monitoring, rapid rate of speech, and 21 irrelevant, tangential and circumstantial content of speech.” Id. On the second testing date, 22 January 6, 2004, her speech issues were largely resolved, but she complained of fatigue after 23 only 2 hours of testing and was rescheduled to complete the evaluation on January 13, 2004. 24 Id. This is entirely consistent with the oeuvre of her medical records, which is a significant 25 decompensation of cognitive and linguistic functioning after fatigue. See infra, § II(a) (Dr. 26 Endyke’s evaluation). 27 Likewise, the Contextual Memory Testing performed in 2010 demonstrated normal 28 immediate and delayed recall of items. However, that test is intended to assess “awareness ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 1 of memory capacity strategy use;” essentially, to determine whether Plaintiff was 2 appropriately using the cueing techniques that she had been practicing to assist her with her 3 memory problems. Much of the therapy performed at Landstuhl included aiding Plaintiff in 4 identifying “moments of becoming tangential.” See e.g. ECF No. 8-8, Ex. 5F at 51. She 5 complained of being “easily distracted,” of her “brain go[ing] elsewhere if not kept busy . . . 6 and not realiz[ing] when new important tasks present themselves,” and needing visual or 7 verbal cues to trigger the performance of activities of daily living, like laundry. ECF No. 8 8.8, Ex. No. 5F, at 15. While the CMT score in 2010 indicates an increased capacity to utilize 9 meta-level tools to identify verbal decompensation, it also indicates that the underlying 10 cognitive issues she was learning to self-identify had persisted from 2004 up to that date. 11 In sum, even the testing cited by the ALJ indicates that Plaintiff’s cognitive and 12 mnemonic capacities were subject to dramatic departures due to mental fatigue, and that her 13 performance “while being treated and while limiting environmental stressors” did not 14 necessarily demonstrate that Plaintiff “can function effectively in a workplace.” Garrison, 15 759 F.3d at 1017. Thus, isolated instances of testing showing mnemonic success are not 16 “inconsistent” with the record as a whole. 17 Plaintiff’s doctors consistently demonstrated skepticism about her ability to return to 18 work. Dr. Tindall’s opinion itself included a recommendation that Plaintiff not return to her 19 part-time job at McDonalds until she could increase her stamina. ECF No. 9, Ex. 12F. On 20 July 30, 2004, after Dr. Tindall’s testing, Plaintiff’s treating doctor, Nathan Stime M.D., 21 indicated that Plaintiff was “unable to work at McDonalds due to the motor vehicle 22 accident.” ECF No. 9, Ex. 15F at 3. Dr. Stime’s letter specifies that the accident “has altered 23 her reasoning” and led to anxiety. Id. The Landstuhl therapy, although performed by 24 occupational therapists, indicated goals exclusively related to Plaintiff’s non-vocational and 25 scholastic pursuits. Her more recent doctors expressly found that she is unable to work. See 26 infra, § 2(a),(c). 27 Thus, under the interpretive guidance from the Ninth Circuit in Garrison, the St. 28 Luke’s testing in early 2004 and the Landstuhl testing in 2010 neither reflect Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 1 baseline during the benefits period nor her actual capacity outside of the clinical setting. 2 Accordingly, it does not constitute substantial evidence sufficient to discredit Plaintiff’s 3 symptom testimony. 4 iii. Discrediting Plaintiff’s Testimony Due to Daily Activities. 5 The third reason the ALJ gave to discredit Plaintiff’s testimony was inconsistencies 6 between her stated impairments and her daily activities. The Ninth Circuit has “warned that 7 ALJs must be especially cautious in concluding that daily activities are inconsistent with 8 testimony about pain, because impairments that would unquestionably preclude work and 9 all the pressures of a workplace environment will often be consistent with doing more than 10 merely resting in bed all day.” Garrison, 759 F.3d at 1016. Recognizing that claimants 11 should not be penalized for attempting to lead their normal lives, “only if Plaintiff’s level of 12 activity is inconsistent with h[er] claimed limitations would these activities have any bearing 13 on h[er] credibility.” Id. 14 The record does not provide any inconsistencies between Plaintiff’s stated 15 impairments and her daily activities of assisting her partner in caring for their young child 16 during the benefits period. Plaintiff testified that her partner did the majority of the 17 household chores, that she had to take frequent breaks during the day, and that she struggled 18 to remember things as basic as changing her child’s diaper without relying upon cuing 19 techniques. See ECF No. 8.2, at 58. Her testimony about her daily activities is entirely 20 consistent with her alleged limitations, and reflects someone earnestly attempting to 21 overcome her limitations and lead her normal life. 22 Accordingly, the supposed inconsistencies between Plaintiff’s daily activities and her 23 testimony do not satisfy the requirement of a clear, convincing, and specific reason to 24 discredit her testimony. Because neither of the ALJ’s other proffered rationales satisfy that 25 requirement, the ALJ erred in discrediting Plaintiff’s symptom testimony. 26 II. Whether the ALJ Improperly Rejected Medical Opinion Evidence? 27 Plaintiff contends the ALJ improperly rejected the medical opinion evidence of Dr. 28 Peter Endyke and Dr. Lylanya Cox. The Ninth Circuit distinguishes between three ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 1 categories of medical providers when assigning the weight to be given to their opinions: “(1) 2 those who treat the claimant (treating physicians); (2) those who examine but do not treat 3 the claimant (examining physicians); and (3) those who neither examine nor treat the 4 claimant but who review the claimant’s file (non-examining or reviewing physicians). Lester 5 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). “Generally, a 6 treating physician’s opinion carries more weight than an examining physician’s, and an 7 examining physician’s opinion carries more weight than a reviewing physician’s.” Holohan 8 246 F.3d at 1202. 9 A treating provider’s opinion is controlling, unless contradicted by substantial 10 evidence in the record. 20 C.F.R. § 404.1527(c)(2). Even if there is substantial contrary 11 evidence in the record, it is still ‘“entitled to the greatest weight . . . even if it does not meet 12 the test for controlling weight.”’ Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007), quoting 13 Social Security Ruling 96–2p at 4, available at 61 Fed.Reg. 34, 490, 34,491 (July 2, 1996). 14 It is undisputed that Dr. Cox and Dr. Endyke were treating physicians. The issue 15 before the Court is whether the ALJ erred in giving their opinions little weight. For the 16 reasons explained below, the ALJ did so err. a. 17 Dr. Peter Endyke, Psy.D.’s Opinion 18 Treating physician Dr. Peter Endyke began treating Plaintiff on May 17, 2011. ECF 19 No. 9, Ex. 19F at 1390. Dr. Endyke’s initial evaluation indicated cognitive impairments, 20 based on the Minnesota Multiphasic Personality Inventory (MMPI). His impression of 21 Plaintiff includes the following assessment: 22 “[t]here is a longstanding, underlying moderate to severe level of depression and anxiety she can no longer hide or ‘pretend’ does not exist. She feels hopeless and helpless about her situation. She feels guilty about her disabilities, and wishes not to be a burden, but she desperately needs financial and emotional support. She struggles to sleep, she has fatigue and often has little or no motivation. She is a severely injured person who does not want to ask for anyone’s help, but for now she will, for the sake of her children.” ECF No. 9, Ex. 19F, at 1393. 23 24 25 26 27 // 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 14 1 Dr. Endyke provided an initial diagnosis of a GAF of 45 (indicating serious symptoms 2 or serious impairments in social, occupational, or school functioning.). He recommended 3 4 5 6 7 8 9 10 11 12 that Plaintiff “apply for disability, as it seems evident she would qualify.” ECF No. 9, at 1394. In January of 2012, Dr. Endyke performed a mental capacity assessment. ECF No. 89, Ex. 6F. He found marked and extreme limitations in Plaintiff’s mental capacity across understanding and memory, sustain concentration and persistence, and adaptation. Id. Most relevantly, he found extreme limitations in Plaintiff’s ability to complete a normal workday, complete a normal workweek, and perform at a consistent pace with standard rest periods. Id. He attributed these limitations to the severe head injury suffered in 2003. He performed a residual functional capacity questionnaire, indicating significant limitations in Plaintiff’s ability to work without taking frequent, prolonged breaks. Id. At the end of August, 2012, Dr. Endyke performed another mental capacity 13 14 15 16 17 18 19 assessment. ECF No. 9, Ex. 20F, 1397. This time, he found moderate and marked limitations in mental capacity across understanding and memory, sustained concentration and persistence, and adaptation. Id. Likewise, he found marked, rather than extreme, limitations in Plaintiff’s ability to complete a normal workday, complete a normal workweek, and perform at a consistent pace with standard rest periods. Id. He continued to attribute these limitations to the 2003 motor vehicle accident. Id. b. 20 21 22 23 24 25 26 27 28 The ALJ’s Rationales for Discounting Dr. Endyke’s Opinion The ALJ discounted Dr. Endyke’s opinions for three reasons: first, because Dr. Endyke’s treatment and diagnosis of Plaintiff’s reduced mental capacity occurred after the benefits period; second, because the ALJ determined that Dr. Endyke’s opinions regarding Plaintiff’s cognitive limitations were inconsistent with other medical records; and third, because Dr. Endyke purportedly lacked the expertise to opine on Plaintiff’s physical and social functioning limitations. // // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 15 1 i. The Gap from the Date Last Insured to Dr. Endyke’s Treatment 2 The first reason given to discredit Dr. Endyke’s testimony, the fact that Dr. Endyke’s 3 treatment and diagnosis occurred after the date last insured, fails as a matter of law. The 4 Ninth Circuit has repeatedly held that “medical evaluations made after the expiration of a 5 claimant’s insured status are relevant to an evaluation of the pre-expiration condition.” 6 Lester, 81 F.3d at 832 (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)). 7 ii. Inconsistent Evidence from an Accepted Medical Source 8 The second reason, perceived inconsistencies between Dr. Endyke’s opinion and 9 other medical evidence in the record, can serve as a basis for affording a treating doctor’s 10 opinions little weight. See, e.g., Lester, 81 F.3d at 833. The ALJ does not make clear what 11 “other medical evidence” is used to discredit Dr. Endyke’s opinion, saying only that “the 12 evidence summarized above indicates the claimant had no more than mild deficits in 13 cognitive functioning soon after the 2003 motor vehicle accident and approximately a year 14 after the date last insured.” AR 38. The medical evidence that this most likely refers to are 15 the treatment notes from St. Luke’s Rehabilitation Institute, ECF No. 9, at 1030-36, and 16 Landstuhl Army Medical Center, ECF No. 8-8, 5F at 15. 17 When determining what medical evidence in the record can be used to justify a 18 diminution in weight for a treating physician’s opinion testimony, courts treat differently 19 medical opinions stemming from “acceptable medical sources” and those made by other 20 sources. See Social Security Ruling, SSR 06-03p.; Titles II and XVI: Considering Opinions 21 and Other Evidence From Sources Who Are Not “Acceptable Medical Sources” in 22 Disability Claims; Considering Decisions on Disability by Other Governmental and 23 Nongovernmental Agencies, 71 FR 45593-03. The St. Luke’s medical records do come from 24 an acceptable medical source, Dr. Angelique G. Tindall, Ph.D., Clinical Psychologist. See 25 20 C.F.R. § 404.1502(a)(2). However, the Landstuhl treatment notes do not, as that testing 26 was performed by Hattie P. Walker, an occupational therapist. Id. 27 The relevant regulations require an ALJ to articulate the weight given to opinions 28 from medical sources who are not acceptable medical sources. 20 C.F.R. § 404.1527(f)(2). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 16 1 Specifically, “when an adjudicate determines that an opinion from such a source is entitled 2 to greater weight than a medical opinion from a treating source, the adjudicator must explain 3 the reasons.” Id. Here, the ALJ did not do so, and only summarizes the Landstuhl treatment 4 notes briefly, accepting their findings as true, without addressing the source. See AR 35-36. 5 The ALJ failed to provide an adequate articulation regarding the Landstuhl notes. See 20 6 C.F.R. § 404.1527(f)(1),(2). 7 Dr. Tindall’s test, indicating normal, if not above-average, cognitive and mnemonic 8 capacity in early 2004, does not constitute “substantial” evidence sufficient to support the 9 ALJ’s decision to give Dr. Endyke’s opinion low weight. First, Dr. Tindall was an 10 examining, and not a treating, physician, and thus her opinion is given lower weight than 11 Dr. Ednyke’s. Lester, 81 F.3d at 830. In Winans v. Bowen, the Ninth Circuit held that an 12 ALJ must set forth “specific, legitimate reasons” that are “based on substantial evidence in 13 the record” for resolving a perceived conflict in favor of an examining physician over a 14 treating physician. 853 F.2d 643, 647 (9th Cir. 1987). The existence of the conflict itself 15 cannot serve as the “specific legitimate” reasons to resolve that perceived conflict in Dr. 16 Tindall’s favor. 17 Instead, the applicable regulations detail what factors are to be used when evaluating 18 competing medical opinions from treating physicians. Adjudicates are to look at, inter alia, 19 (a) the duration of the treatment relationship and whether the treating source has obtained a 20 “longitudinal picture” of the patient; (b) the nature and extent of the treatment relationship; 21 (c) whether the opinion is supported by medical signs and laboratory findings; (d) whether 22 the opinion is consistent with the record as a whole; (e) and whether the opinion is within 23 the treating source’s specialization. 20 C.F.R. § 404.1527(c). 24 Both opinions were supported by objective testing (the WAIS and MMPI), and both 25 providers were clinical psychologists acting within the scope of their specializations, but the 26 expansive nature and prolonged extent of Dr. Endyke’s treatment relationship with Plaintiff 27 should have granted it more weight than Dr. Tindall’s examining relationship. Dr. Endyke’s 28 January 4, 2012 Medical Source Statement occurred after treating Plaintiff for eight months. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 17 1 His August 31, 2012 Statement occurred after 16 months of treatment. Dr. Tindall’s three 2 sessions of testing formed the entirety of her examining relationship with Plaintiff. She 3 would have only seen Plaintiff once, were it not for Plaintiff’s inability to perform the testing 4 in one session due to her cognitive limitations. Dr. Endyke was able to gain a “longitudinal 5 picture of [her] medical impairment(s),” while Dr. Tindall was not. See 20 C.F.R. § 6 404.1527(c)(2). 7 Further, Dr. Endyke’s findings were more consistent with the record when taken as a 8 whole than Dr. Tindall’s. See supra, § 1(b)(ii). In particular this is true when one properly 9 considers both Dr. Endyke and Dr. Cox’s opinions as part of the record. See e.g. Lingenfelter 10 v. Astrue, 504 F.3d 1028, 1037 (9th Cir. 2007)(finding error to discredit opinion testimony 11 of two treating physicians due to contrary “consensus” of medical opinion, when such 12 “consensus” was created, circularly, by discrediting opinion testimony of treating 13 physicians.) 14 Thus, it was error for The ALJ to rely upon Dr. Tindall’s examining opinion to 15 discredit Dr. Endyke’s treating opinion, because none of the enumerated regulatory factors 16 cut in favor of Dr. Tindall’s opinion, and because Dr. Endyke’s treating relationship 17 presumptively gives his opinion more weight. 18 iii. Dr. Endyke’s Lack of a Specialization 19 The third reason the ALJ gave for giving Dr. Endyke’s opinion low weight, his lack 20 of specialization in some of the areas he opined on, directly conflicts with Ninth Circuit 21 precedent. See Lester, 81 F.3d at 833 (citing Sprague v. Bowen, 812 F.2d 1226, 1232 (9th 22 Cir. 1987)). As the Ninth Circuit held in Lester, an opinion from a treating physician 23 presumptively has controlling weight because of the “unique perspective” that a treating 24 physician brings to the medical evidence as a whole. Lester, 81 F.3d at 833. The Ninth 25 Circuit’s rationale is directly on point and applicable here. 26 27 28 “An integral part of the treating physician's role is to take into account all the available information regarding all of his patient's impairments—including the findings and opinions of other experts. The treating physician's continuing ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 18 relationship with the claimant makes him especially qualified to evaluate reports from examining doctors, to integrate the medical information they provide, and to form an overall conclusion as to functional capacities and limitations, as well as to prescribe or approve the overall course of treatment. This is particularly true in cases like Lester’s, where the parts of the functional restrictions arising from the claimant's physical impairments cannot be separated from the parts arising from his mental impairments.” 1 2 3 4 5 6 Id. Thus, while Dr. Endyke’s opinion is not given more weight in those areas where 7 he is not a specialist, under Lester and Sprague, the absence of specialization cannot 8 be used as a legitimate reason to discount it. What is more, as a clinical psychologist, 9 he is a specialist with regard to the cognitive complaints that form the heart of this 10 dispute. The ALJ thus erred in not giving Dr. Endyke’s opinion substantial, if not 11 12 controlling, weight. c. 13 Dr. Lylanya Cox 14 In February of 2013, Dr. Lylanya Cox, M.D., performed a Residual Functional 15 Capacity Questionnaire and a Mental Capacity Assessment. ECF No. 9, Ex. 28F, AR 1603- 16 08. Dr. Cox indicated that Plaintiff would be limited to sedentary work, would miss work 17 frequently, and suffers from moderate to extreme cognitive, social, and adaptive limitations. 18 Id. 19 The ALJ assigned little weight to Dr. Cox’s opinion for six reasons, which will be 20 briefly addressed separately. AR 38. First, The ALJ notes that the treatment occurred two- 21 22 23 and-a-half years after the date last insured. Id. Second, The ALJ suggests that there is a paucity of corroborating objective findings regarding Plaintiff’s chronic pain symptoms. Id. Third, regarding Plaintiff’s mental health impairments, The ALJ noted both a failure to seek counseling until after the date last insured and the absence of counseling notes in the record. 24 Id. Fourth, it appears The ALJ disputes Dr. Cox’s qualifications to diagnose mental 25 functioning. Id. Fifth, The ALJ notes inconsistencies between other medical evidence in the 26 record and Dr. Cox’s findings of decreased mental functioning, and due to the absence of 27 objective testing and symptomology corroborating Dr. Cox’s findings. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 19 1 The first reason for assigning little weight to Dr. Cox’s opinion, that the treatment 2 occurred years after the DLI, is not legitimate. See Supra, § (II)(b); Smith, 849 F.2d at 1225. Nor is the second reason, an alleged absence of corroborating findings regarding 3 4 5 chronic pain, supported by substantial evidence in the record. Almost all of the medical records indicate that Plaintiff suffers from chronic pain, and records need not provide the same exact diagnosis and medical recommendation to corroborate a medical opinion. In fact, 6 the same records used by the ALJ to give Dr. Endyke and Dr. Cox’s opinions low weight, 7 Dr. Tindall’s evaluation in 2004, include a description of “constant back and head pain.” 8 ECF No. 9, Ex. 12F at 9. She was prescribed prednisone for her chronic headaches at that 9 time. ECF No. 9, Ex. 12F at 32. Despite the ALJ’s concerns about the absence of 10 “radiological evidence” or “objective findings on examination” regarding her chronic pain, 11 the records show she was consistently treated for it from 2003 until the present. 12 The third reason, Plaintiff’s failure to seek counseling for mental health problems, is 13 also not supported by the record. Plaintiff had an active diagnosis of depression with anxiety 14 15 16 17 in all of her relevant treatment notes. She was prescribed Ativan and Lexapro to address these conditions. See, e.g., ECF No. 9, Ex. 14F. Her treatment history for those conditions corroborates their existence. The fourth reason given by The ALJ is somewhat difficult to parse. “Dr. Cox was her medical treatment provider, not her medical treatment provider, and it is not clear from the 18 record that Dr. Cox is specifically trained to give an opinion as to the claimant’s mental 19 functioning.” ECF No. 9-2, at 21. The Court construes this as a challenge to Dr. Cox’s 20 expertise, akin to the third rationale provided for discounting Dr. Endyke’s opinions. See 21 supra, § 2(b)(iii). For the same reasons as outlined above, this rationale is inappropriate. Id. 22 The fifth reason to not give Dr. Cox’s opinion controlling weight is akin to the second 23 reason given to discount Dr. Endyke’s opinion. See supra, § 2(b)(ii). As a treating physician, 24 Dr. Cox’s opinion presumptively outweighs that of Dr. Tindall’s, and for the same reasons 25 26 27 as outlined above, the ALJ erred by cherry-picking one piece of medical evidence, a test performed by an examining physician, and disregarding the corroborating evidence of Dr. Endyke’s treating opinion. Thus, the ALJ erred by giving Dr. Cox’s opinion low weight. // 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 20 CONCLUSION 1 2 3 4 5 6 7 The ALJ erroneously rejected medical opinion evidence and Plaintiff’s symptom testimony. The record has been fully developed and further administrative proceedings will not be useful: the ALJ has failed to provide legally sufficient reasons for rejecting both the claimant testimony and medical opinions of Dr. Cox and Dr. Endyke; and if that improperly rejected evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. See Garrison, 759 F.3d at 1020. Consequently, the proper remedy is to remand for a calculation and award of appropriate benefits. Id. at 1019-20. 8 Accordingly, IT IS ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 10 2. Defendant’s Motion for Summary Judgment, ECF No. 15 is DENIED 11 3. The decision of the Commissioner is reversed and this matter is REMANDED 12 13 14 15 16 17 for a calculation and award of appropriate benefits. 4. The District Court Executive is directed to enter judgment in favor of Plaintiff and against Defendant. IT IS SO ORDERED. The District Court Executive is hereby directed to enter this Order and furnish copies to counsel. DATED this 27th day of December 2018. 18 19 20 21 22 23 24 25 Stanley A. Bastian United States District Judge 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 21

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