Dodge v. Commissioner of Social Security, No. 4:2017cv05075 - Document 16 (E.D. Wash. 2018)
Court Description: ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF. GRANTING 13 Plaintiff's Motion for Summary Judgment; DENYING 15 Defendant's Motion for Summary Judgment. Case CLOSED. Signed by Senior Judge Edward F. Shea. (SK, Case Administrator)
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Dodge v. Commissioner of Social Security Doc. 16 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jul 12, 2018 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 SEAN F. MCAVOY, CLERK 5 6 ANNE D.,1 No. 7 4:17-CV-05075-EFS Plaintiff, ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF v. 8 9 COMMISSIONER OF SOCIAL SECURITY, 10 Defendant. 11 12 Before the Court, without oral argument, are cross summary 13 judgment motions. ECF Nos. 13 & 15. Plaintiff, Anne D., appeals the 14 Administrative denial 15 Nos. 1 & 13. 16 (Commissioner), asks the Court to affirm the ALJ’s determination that 17 Anne is not disabled and is capable of performing substantial gainful 18 activity in a field for which a significant number of jobs exist in 19 the national economy. See ECF Nos. 8 & 15. 20 and relevant authority, the Court is fully informed. 21 set forth below, the Court grants Anne’s Motion for Summary Judgment 22 and denies the Commissioner’s Motion for Summary Judgment. Law Judge’s Defendant, (ALJ) the of Commissioner benefits. of Social See ECF Security After reviewing the record For the reasons 23 24 25 26 1 To protect privacy, the Court refers to all social-security plaintiffs by first name and last initial. See proposed draft of LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Anne” for any other identifier that was used, and — for the sake of readability — the Court will refrain from using brackets to indicate such substitutions. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 1 Dockets.Justia.com Facts and Procedural History2 I. 1 Plaintiff Anne D. was born in 1962. See Administrative Record, 2 3 ECF No. 9, (AR) 157. She has long suffered from depression, but 4 medication seemingly provided sufficient relief until early 2012. See 5 AR 319. At the end of April 2012, Anne lost her job working as an IT 6 7 manager. AR 85, 322. In February 2013, during an appointment for 8 medication and 9 reported, “most days I see myself spiraling down and I can’t help it. management a “brief therapeutic interval,” Anne 10 I can’t cope with the daily stuff.” AR 323. 11 provider, Deborah D. Dell, ARNP (Nurse Dell), reported that Anne had 12 regressed. AR 323. 13 her therapist, Cynthia Benson, MS LMFT (Therapist Benson) “to process 14 the 15 experienced the past 10 months.” AR 323. emotions Anne’s longtime treatment Nurse Dell strongly encouraged Anne to meet with triggered by the multiple disappointments she has At the end of April 2013 — exactly one year after she lost her 16 17 job — Anne was hospitalized for suicidal ideations. AR 258. 18 treated 19 medication regimen. AR 258, 357. 20 treatment notes varied from showing “significant improvement” to “no 21 improvement.” AR 327–32. 22 drug Abilify, which showed great promise in treating her depression for one week at an inpatient unit, which She was changed her Following her release, Nurse Dell’s But in August 2013, Anne started taking the 23 24 25 26 2 Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. The Court summarizes only those facts that are relevant to its decision; as the ALJ largely relies on Anne’s longitudinal treatment history, see, e.g., AR 26, the Court sets forth the related facts in more detail. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 2 1 symptoms. See AR 347–78 (noting that Anne “has improved since addition 2 of Abilify”). 3 In October 2013, Anne filed her first application for 4 disability, alleging disability beginning April 30, 2012 (the date she 5 lost 6 psychiatric review 7 limitations (down 8 (1) restriction of activities of daily living, (2) difficulties in 9 maintaining social functioning, and (3) difficulties in maintaining her job). AR 10. In November indicating from extreme that 2013, Anne before Nurse had Dell marked Abilify) in provided a functional three areas: 10 concentration, persistence, or pace. AR 347. Also in November 2013, 11 Therapist Benson similarly opined that Anne had marked functional 12 limitations in those same areas. AR 371. 13 A few months later, in December 2013, James Bailey, Ph.D. — a 14 non-examining, State-agency psychologist — opined that the “evidence 15 shows that Anne has some limitations in the performance of certain 16 work activities; however, these limitations would not prevent the 17 individual from performing past relevant work as a/an Business System 18 Analyst.” AR 85. 19 asked for a review of that decision. AR 19. Anne’s claim was denied in January 2014, and she 20 In early January 2014, Nurse Dell’s notes indicated “significant 21 progress” and that Anne “feels better and that others have noticed a 22 positive improvement in her mood and demeanor since she started taking 23 the Ritalin regularly.” AR 378. 24 mood 25 therapist today.” AR 378. 26 Benson’s psychological assessment of Anne indicated she suffered from has significantly Nurse Dell stated, “Overall, Anne’s improved[,] which was also noted by her Even at that point, however, Therapist ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 3 1 extreme depression and anxiety. AR 354. Then, at the end of January 2 2014, despite the noted improvement, Anne reported that she “continues 3 to need lorazepam when she leaves the house except for her therapy 4 sessions.” AR 380. 5 another medication and discontinued Abilify because of excess weight 6 gain. AR 380. 7 In Further, Anne’s treatment providers started her on February 2014, another non-examining, State-agency 8 psychologist, Beth Fitterer, Ph.D., reconsidered Anne’s claim. AR 89. 9 In finding Anne only partially credible, Dr. Fitterer stated, “The 10 objective 11 limitations. 12 significant improvement noted with meds at least by 9/2013.” AR 95. 13 Dr. Fitterer also assigned only limited weight to Nurse Dell’s and 14 Therapist Benson’s opinions, “as both sources acknowledge significant 15 improvement with medications started 9/2013.” AR 96. 16 determined that Anne was not disabled because she could perform past 17 relevant work as a business system analyst. AR 99. 18 Also evidence in does not support the level of clmnt reported Situational onset with stressors/loss of pets/job and February and that 2014, her after mood was noting that “dysphoric And Dr. Fitterer Anne “no 19 improvement” irritable with 20 congruent affect,” Nurse Dell restarted Anne on Abilify. AR 403. For 21 the next several months, Anne generally improved; Nurse Dell’s notes 22 reflected progress ranging from “modest” to “significant.” AR 401–58. 23 With the encouragement of her treatment providers, Anne was able to 24 perform a small amount of volunteer work at the local hospital, hold a 25 part-time job doing technical writing, and take an in-person math 26 class at the community college. See, e.g., AR 49. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 4 and showed 1 Near April 2015, however, both Nurse Dell and Therapist Benson 2 indicated that Anne’s depression had become worse again. AR 413, 436. 3 In August 2015, one of Anne’s treating physicians, Dr. Jumee Barooah, 4 M.D., noted that “psychiatry seems to help [Anne,] but lately she has 5 been feeling as if she has no mission in life — has had thoughts about 6 self-harm.” AR 470. 7 opined that Anne would likely be off-task 21-30% of the time and would 8 likely miss four or more days of work per month. AR 515. 9 Benson stated that although Anne “has improved to the point she is 10 able to take one or two classes at a time,” doing so causes a great 11 deal of stress, and Anne “would not do well in a work setting just 12 yet.” AR 516. And, at the end of August, Therapist Benson Therapist Also in August 2015, N.K. Marks, Ph.D., an examining physician 13 14 and licensed psychologist, conducted a psychological/psychiatric 15 evaluation. 16 three work-related areas of functioning. AR 511. Dr. Marks indicated that Anne had marked limitations in 17 On December 8, 2015, Administrative Law Judge (ALJ) Ilene Sloan 18 issued a decision finding Anne not disabled for purposes of the Social 19 Security Act. AR 29. The ALJ found that Anne has the following severe 20 impairments: depressive 21 attention deficit hyperactivity disorder (ADHD). AR 21. Despite those 22 impairments, the 23 functional capacity (RFC) to perform “a full range of work at all 24 exertional 25 nonexertional limitations: “she can work in a low stress environment 26 defined as only routine changes in the workplace setting. major however, levels,” so the ALJ long as disorder, found such that work anxiety Anne has includes ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 5 disorder, the and residual following Contact 1 with the general public cannot be an essential element of any task, 2 but occasional superficial public contact is not precluded.” 3 AR 23. 4 Given those nonexertional limitations, the ALJ found that Anne 5 is unable to perform her past relevant work as a business systems 6 analyst, a project manager, or a technical writer. AR 27–28. 7 ALJ 8 requirements of the following representative occupations: small parts 9 assembler, maid, mailroom clerk, laundry worker, and warehouse worker. 10 went on to find that Anne is capable of But the performing the AR 28–29. 11 The Appeals Council denied Annes’s request for review, AR 1, 12 making the ALJ’s decision the final agency action for purposes of 13 judicial review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 14 422.210. 15 decision. ECF No. 1. 16 judgment motions. ECF Nos. 13 & 15. Anne filed this lawsuit on June 1, 2017, appealing the ALJ’s The parties then filed the present summary- II. 17 Standard of Review 18 The Court will uphold an ALJ’s determination that a claimant is 19 not disabled if the ALJ applied the proper legal standards and there 20 is substantial evidence 21 decision.3 22 less than a preponderance. 23 reasonable mind might accept as adequate to support a conclusion.” in the record as a whole to support the Substantial evidence is “more than a mere scintilla, but It means such relevant evidence as a 24 25 26 3 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 6 1 Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th 2 Cir. 1988) (citations and internal quotation marks omitted). III. Applicable Law & Analysis4 3 Anne 4 makes several arguments in favor of reversing the 5 Commissioner’s decision. ECF No. 13 at 8–9. However, because the 6 Court finds that the ALJ erred in improperly rejecting the opinions of 7 Anne’s medical providers, it need not address her remaining arguments. 8 A. 9 The ALJ erred in rejecting Dr. Marks’ opinion without providing specific and legitimate reasons supported by substantial evidence. 10 “In disability benefits cases, physicians may render medical, 11 clinical opinions, or they may render opinions on the ultimate issue 12 of disability — the claimant’s ability to perform work.”5 13 examining physician’s opinion is contradicted, the opinion can be 14 rejected “for specific and legitimate reasons that are supported by 15 substantial evidence in the record.”6 16 “setting 17 conflicting clinical evidence, stating [her] interpretation thereof, 18 and making findings.”7 19 Here, 20 source8 — conducted a psychological/psychiatric evaluation. 21 Drs. Bailey and Fitterer obviously could not have given the June 2014 Dr. out a Marks detailed — an and The ALJ can accomplish this by thorough examining When an summary physician and of the facts acceptable and medical Although 22 4 23 24 5 25 6 26 7 8 The applicable five-step disability determination process is set forth in the ALJ’s decision, AR 20–21, and the Court presumes the parties are well acquainted with that standard process. As such, the Court does not restate the five-step process in this order. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation marks omitted). Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). See 20 C.F.R. § 404.1502. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 7 1 assessment any consideration, their previous disability determinations 2 are in contradiction with Dr. Marks’ more recent assessment. See AR 3 77–86, 89–100, 508–512. After all, Dr. Marks determined that Anne had 4 marked the 5 functioning: making simple work-related decisions, communicating and 6 performing effectively in a work setting, and completing a normal work 7 day and work week without interruptions from psychologically based 8 symptoms. AR 511. in following three work-related areas of Dr. Marks stated as follows: At this point, Anne’s depression would interfere with her ability to maintain employment due to poor concentration, avoidance, likely poor task completion and confusion as well as a very negative self-appraisal[,] which could affect how she approaches tasks and interacts with others on the job. She would likely give up easily at the first sign of failure. She already experiences suicidal ideations and forcing her to work at this point might increase those ideations. 9 10 11 12 13 14 limitations AR 509, 511. 15 The ALJ gave little weight to Dr. Marks’s assessment — as well 16 as the assessments by Therapist Benson and Nurse Dell — and provided 17 five reasons for doing so: (1) they “are inconsistent with the Anne’s 18 longitudinal treatment history”; (2) they are inconsistent with Anne’s 19 “performance on mental status examinations”; (3) they are inconsistent 20 with Anne’s “documented daily activities”; (4) Anne’s “symptoms have 21 been 22 management” 23 assessments “were based at least in part on Anne’s self-report, but, 24 as noted, her allegations are not entirely credible.” AR 26–27. 25 26 adequately since controlled her through hospitalization counseling in April and 2013; medication and (5) the None of the ALJ’s five reasons for rejecting Dr. Marks’ opinion are supported by substantial evidence. First, contrary to the ALJ’s ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 8 1 finding, and as set forth above, Dr. Marks’ assessment was perfectly 2 consistent with the Anne’s longitudinal treatment history. 3 the ALJ provides no explanation for how Dr. Marks’ assessment was 4 inconsistent with Anne’s performance on mental status examinations; 5 Dr. 6 faculties were within normal limits and that she demonstrated “good 7 memory skills” and “excellent abstract thought” AR 511–12. 8 may have, as Dr. Marks puts it, “above average innate intelligence” 9 does not make her any less likely to miss work or have difficulties 10 Marks own mental status exam acknowledged that Second, Anne’s mental That Anne because of her depression, anxiety, and/or ADHD. The ALJ likewise failed to articulate how Dr. Marks’ assessment 11 12 was inconsistent with Anne’s daily activities. 13 cited by the ALJ were inconsistent with Dr. Marks’ assessment of the 14 workplace limitations that Anne’s symptoms would cause. See AR 22–23. 15 Indeed, 16 difficulty with daily activities and social interactions that are far 17 less demanding than a full-time job. 18 repeatedly cautioned ALJs against confusing basic activities of daily 19 living, such as driving or having a limited number of friends, with 20 activities of full-time employment.9 Anne’s treatment records show None of the activities that she And the frequently Ninth Circuit had has 21 The record lacks any substantial evidence to support the ALJ’s 22 finding that Anne’s “symptoms have been adequately controlled through 23 9 24 25 26 See Garrison, 759 F.3d at 1014, 1016; see also Reddick, 157 F.3d at 722 (“[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.”); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1987) (noting that claimants need not “be utterly incapacitated to be eligible for benefits . . . many home activities are not easily transferable to what may be the more grueling environment of the workplace . . . .”). ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 9 1 counseling and medication management” since her hospitalization in 2 April 3 longitudinal 4 someday return to employment, and she had periods of progress, but she 5 was still prone to regressions. 6 ALJ’s decision, Anne’s medical care providers were still trying to 7 find 8 stabilize Anne’s conditions. See, e.g, AR 413 (noting “mild dysphoria” 9 under 2013. the See AR 27. treatment correct progress antidepressants). 11 Lastly, record although ALJ demonstrated that she was above, taking Anne’s steps to Even during the months preceding the of increasing an as shows combination and 10 Instead, may medications the dosage reject and of an counseling one examining of to Anne’s physician’s 12 opinion “if it is based to a large extent on a claimant’s self-reports 13 that 14 conducted a clinical interview and a mental status evaluation. 15 are objective measures and cannot be discounted as a ‘self-report.’”11 16 Moreover, “the rule allowing an ALJ to reject opinions based on self- 17 reports does not apply in the same manner to opinions regarding mental 18 illness.”12 19 especially compared to evaluation in other medical fields. 20 will always depend in part on the patient’s self-report, as well as on 21 the clinician’s observations of the patient. 22 of psychiatry.”13 have been properly “Psychiatric discounted as evaluations incredible,”10 may appear Dr. Marks “These subjective, Diagnoses But such is the nature 23 24 10 25 11 26 12 13 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citation and internal quotation marks omitted). See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Buck, 869 F.3d at 1049 (9th Cir. 2017). Id. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 10 2 The ALJ erred in rejecting Nurse Dell’s and Therapist Benson’s opinions without providing germane reasons supported by substantial evidence. 3 For purposes of Anne’s claim, advanced nurses and/or therapists 4 are not considered “acceptable medical sources” but are instead “other 5 sources” whose opinions are entitled to less weight than that of a 6 physician.14 7 substantial evidence, to discredit other-source opinions.15 1 B. An ALJ need only give “germane reasons,” supported by 8 Even so, when considering how much weight to give to other- 9 source opinions, the Social Security Administration directed ALJs to 10 consider the following factors: (1) how long the source has known and 11 how frequently the source has seen the claimant; (2) how consistent 12 the opinion is with other evidence; (3) the degree to which the source 13 presents relevant evidence to support an opinion; (4) how well the 14 source explains the opinion; (5) whether the source has a specialty or 15 area of expertise related to the claimant’s impairments; and (6) any 16 other factors that tend to support or refute the opinion. SSR 06- 17 03p.16 18 treatment 19 nonetheless give an opinion that should outweigh the opinion of an 20 acceptable As such, depending provider medical who is source, on the particular not an “acceptable such as the facts of medical opinion of a case, a source” may a reviewing 21 22 23 14 24 25 15 16 26 See Huff v. Astrue, 275 F. App’x 713, 716 (9th Cir. 2008). But see 20 C.F.R. § 404.1502 (adding licensed advanced practice nurse to the list of “acceptable medical sources” for claims filed on or after March 27, 2017). Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). SSR 06-03p was rescinded effective March 27, 2017. 82 Fed. Reg. 58444 (March 27, 2017). However, it was in effect when the ALJ rendered her decision. See 20 C.F.R. § 404.1527(f). ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 11 1 doctor.17 2 one medical opinion more heavily than another must be supported by 3 substantial evidence.18 And, as with all findings by the ALJ, the decision to weigh Here, the ALJ assigned “significant weight” to the two non- 4 5 examining, State-agency psychologists’ opinions. AR 26. In doing so, 6 however, there is no indication the ALJ considered the applicable 7 factors listed above. 8 Therapist Benson were long-time treatment providers who saw Anne on a 9 regular basis; their opinions were consistent with each other and 10 every other medical provider that had actually treated or examined 11 Anne. 12 considerable 13 assessments, 14 problems such as depression and anxiety. 15 above in regards to the ALJ improperly discounting Dr. Marks’ opinion 16 — the record does not 17 discounting Nurse Dell’s and Therapist Benson’s opinions. 18 C. Unlike Drs. Bailey and Fitterer, Nurse Dell and Nurse Dell and Therapist Benson supported their opinions with a amount and of they treatment both are support notes experts and in several treating tests mental and health Moreover — as discussed the ALJ’s five stated reasons for The ALJ’s errors warrant reversal and further proceedings. 19 In summary, the ALJ failed to provide specific and legitimate 20 reasons, supported by substantial evidence, for rejecting Dr. Marks’ 21 opinion. 22 supported by substantial evidence, for rejecting Nurse Dell’s and 23 Therapist Benson’s opinions.19 Similarly, the ALJ did not provide germane reasons, Finally, the ALJ did not adequately 24 25 17 18 26 19 See 20 C.F.R. § 404.1527(f). See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). See Molina, 674 F.3d at 1111. C.f. Haagenson v. Colvin, 656 Fed. Appx. 800, 802 (9th Cir. 2016) (holding that ALJ’s dismissal of ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 12 1 set out a detailed and thorough summary of the conflicting clinical 2 evidence 3 findings.20 and provide her interpretation thereof while making her 4 At a minimum, had the ALJ properly considered the opinions of 5 Dr. Marks, Nurse Dell, and Therapist Benson, the ALJ’s RFC findings 6 and the hypothetical questions posed to the vocational expert would 7 likely have included additional limitations. 8 disability decision may have changed if the ALJ properly considered 9 those 10 opinions, the ALJ’s error is not Because the ultimate harmless and requires reversal.21 11 In her motion for summary judgment, Anne requests that the Court 12 remand to the Commissioner for an immediate award of benefits. ECF 13 No. 13 at 20. 14 the evidence, nor can it conclude that the ALJ would be required to 15 find Anne disabled after properly evaluating the medical opinions and 16 Anne’s testimony.22 17 to conduct further proceedings. 18 the opinions of Dr. Marks, Nurse Dell, and Therapist Benson; reassess 19 Anne’s subjective complaints and make new RFC findings in light of This Court, however, is not in a position to reweigh The appropriate remedy is to remand for the ALJ On remand, the ALJ shall reevaluate 20 21 22 23 20 24 21 25 26 22 opinions of nurse and counselor solely because they were “other sources” was reversible error). See Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). See Molina, 674 F.3d at 1115. See Leon v. Berryhill, 880 F.3d 1041, 1046–48 (9th Cir. 2017) (affirming the district court’s decision to remand for further proceedings, rather than remand for payment of benefits, where the record reveals conflicts, ambiguities, or gaps). ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 13 1 those opinions; exercise her discretion in receiving new, additional 2 evidence; and make a new disability determination. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. GRANTED. 5 6 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 7 8 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 3. For the foregoing reasons, the Commissioner’s final 9 decision is REVERSED and this case is REMANDED for further 10 administrative proceedings under sentence four of 42 U.S.C. 11 § 405(g). 12 4. The Clerk’s Office is directed to enter JUDGMENT in favor of the Plaintiff. 13 14 5. 15 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 16 17 The case shall be CLOSED. Order, enter Judgment for Plaintiff, and provide copies to counsel. DATED this 12th _ day of July 2018. 18 19 s/Edward F. Shea _ EDWARD F. SHEA Senior United States District Judge 20 21 22 23 24 25 26 Q:\EFS\Civil\2017\17-CV-5075;Anne D.SS.SJ for Plaintiff.LC1.docx ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 14
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