Wolfe v. Commissioner of Social Security, No. 4:2017cv05155 - Document 19 (E.D. Wash. 2018)

Court Description: ORDER GRANTING PLAINTIFFS 17 MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS 18 MOTION FOR SUMMARY JUDGMENT. The matter is REVERSED and REMANDED to the Commissioner of Social Security. FILE IS CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)

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Wolfe v. Commissioner of Social Security Doc. 19 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Dec 28, 2018 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GARY W. , No. 4:17-cv-05155-MKD Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 17, 18 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 17, 18. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 grants Plaintiff’s Motion, ECF No. 17, and denies Defendant’s Motion, ECF No. 18 18. 19 20 2 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 2 ORDER - 3 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C. Plaintiff 13 contends the opinion is supported by Mr. Thoma’s clinical findings. ECF No. 17 14 at 18. Here, the ALJ concluded there were “few clinical notes at this time” 15 because Plaintiff “did not begin regular mental health treatment until 16 approximately November 2014.” Tr. 34. This conclusion lacks substantial 17 support, however, as in July 2014, supervising psychiatrist Cheta Nand, M.D. 18 prescribed a treatment plan consisting of Lithium, Klonopin, and Depakote, in 19 addition to therapy. Tr. 542. By November 2014, Plaintiff had attended nine 20 therapy sessions with Mr. Thoma; and at the time of Mr. Thoma’s August 2014 2 ORDER - 14 1 opinion, Plaintiff had attended three 1-hour therapy sessions. Tr. 567-87. The ALJ 2 concluded “clinical notes dated after this form was completed do not discuss such 3 limitations,” Tr. 34, yet the record contains over 70 pages of clinical evidence from 4 Catholic Family and Child Services, which the ALJ did not refer to. Tr. 515-87, 5 668-79. These records, for example, discuss Plaintiff’s symptoms of depression, 6 anger, panic, irrational beliefs, failure to accomplish goals, life stressors, anger 7 outburst in the therapist’s waiting room, hypomania, hallucinations, poor memory 8 and fund of knowledge, and impaired insight and judgment. Id. 9 Finally, the ALJ commented that Mr. Thoma “did not mention the fact that 10 [Plaintiff] admitted at the appointment prior to the date of this form that he was 11 only taking half of his dose of lithium and not taking his prescribed Depakote at 12 all.” Tr. 34 (citing Tr. 583). Mr. Thoma’s clinic note reflects Plaintiff had reduced 13 his recently prescribed Lithium dose due to side effects, including dizziness. Tr. 14 583. It is evident from the record that Mr. Thoma was aware of Plaintiff’s 15 prescription medication use, yet Mr. Thoma did not indicate that his opinion 16 depended on Plaintiff’s use of medication, nor is it evident that when Plaintiff took 17 the medication his symptoms were removed. See Tr. 33 (recognizing that 18 compliance with the prescribed medication “may not have been curative”); Tr. 535 19 (Sept. 2014: increasing Lithium and stopping Depakote). It appears the ALJ used 20 her concern about Plaintiff’s credibility to reject Mr. Thoma’s opinion, which is 2 ORDER - 15 1 not a germane reason to discount the opinion and amounts to speculation on the 2 part of the ALJ that Plaintiff’s mental impairments observed by Mr. Thoma were 3 attributable to his non-compliance. See, e.g. Edlin v. Massanari, 253 F.3d 1152, 4 1159 (9th Cir. 2001) (finding that the ALJ appeared to have relied on personal 5 doubts about the claimant’s overall credibility to reject a treating physician’s 6 report). 7 The ALJ failed to offer germane reasons to discount Mr. Thoma’s opinion, 8 which was the sole psychological opinion in the record since the time Plaintiff 9 began mental health treatment, as no medical expert or consultative examination 10 were utilized.4 The ALJ’s error was not harmless because had she credited Mr. 11 Thoma’s opinion it would have led to a more restrictive residual functional 12 capacity and a finding of disability. ECF No. 17 at 19. A remand is necessary to 13 reevaluate Plaintiff’s limitations related to his mental health impairments. 14 2. Tae-Im Moon, Ph.D. 15 On October 3, 2012 and August 26, 2013, Dr. Moon evaluated Plaintiff. Tr. 16 411-22. Dr. Moon diagnosed Plaintiff with bipolar disorder (not otherwise 17 specified), anxiety disorder (not otherwise specified), and mood disorder (not 18 19 4 The Court notes that instead of Eric Thoma, the ALJ’s decision refers to “Erica 20 Thoma” and “Ms. Thoma,” Tr. 34. 2 ORDER - 16 1 otherwise specified). Tr. 412, 418. In both opinions, Dr. Moon opined that 2 Plaintiff was markedly limited in his ability to communicate and perform 3 effectively in a work setting and to maintain appropriate behavior in a work 4 setting. Tr. 413, 419. In his 2012 opinion, he also opined Plaintiff was markedly 5 limited in his ability to complete a normal work day and work week without 6 interruptions from psychologically based symptoms. Tr. 413. 7 The ALJ assigned minimal weight to Dr. Moon’s opinion regarding 8 Plaintiff’s ability to perform effectively and maintain appropriate behavior in a 9 work setting. Tr. 34-35. Because Dr. Moon’s opinion was contradicted by the 10 opinions of state agency consulting psychologists Matthew Comrie, Psy.D. and 11 John Gilbert, Ph.D., Tr. 127-28, 143-44, the ALJ was required to provide specific 12 and legitimate reasons for rejecting Dr. Moon’s opinion. See Bayliss, 427 F.3d at 13 1216. 14 Defendant contends the ALJ “relied on multiple, proper reasons to partially 15 discount Dr. Moon’s opinions.”5 ECF No. 18 at 4. First, the ALJ discounted Dr. 16 17 5 Defendant’s entire analysis of this issue consists of a one-paragraph list of the 18 reasons the ALJ gave to partially discount Dr. Moon’s opinions. ECF No. 18 at 4. 19 Defendant failed to provide any legal analysis to support the sufficiency of the 20 ALJ’s explanations. Defendant is expected to address the errors alleged by 2 ORDER - 17 1 Moon’s opinion because “no records were reviewed in this one time exam for the 2 purpose of establishing eligibility for State benefits.” Tr. 34. “The purpose for 3 which medical reports are obtained does not provide a legitimate basis for rejecting 4 them.” Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (citing Ratto v. Sec’y, 5 Dept. of Health and Human Servs., 839 F. Supp. 1415, 1426 (D. Or. 1993)). The 6 number of visits a claimant has made to a particular provider is a relevant factor in 7 assigning weight to an opinion. 20 C.F.R. § 416.927(c). However, the fact that 8 Dr. Moon examined Plaintiff just twice is not a legally sufficient basis for rejecting 9 the opinion, given that the ALJ rejected the opinion in favor of opinions by 10 reviewing physicians who did not examine Plaintiff. 11 12 13 Plaintiff with argument supported by explanation. It is not enough to address the 14 issue in a perfunctory manner, “leaving the court to . . . put flesh on its bones” 15 through a discussion of the applicable law and facts in the record. McPherson v. 16 Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997); see also Vandenboom v. Barnhart, 17 421 F.3d 745, 750 (8th Cir. 2005) (rejecting out of hand conclusory assertion that 18 ALJ failed to consider whether claimant met Listings because claimant provided 19 no analysis of relevant law or facts regarding Listings); Perez v. Barnhart, 415 20 F.3d 457, 462 n. 4 (5th Cir. 2005) (argument waived by inadequate briefing). 2 ORDER - 18 1 On this record, the fact that no records were reviewed is not a legitimate 2 basis to discount Dr. Moon’s opinion. Dr. Moon’s opinions were rendered prior to 3 the alleged date of onset and the time Plaintiff sought mental health treatment in 4 2014. Although there are some mental health notes in the record from 2012, the 5 ALJ acknowledged there were limited treatment records until 2014. Tr. 34; see Tr. 6 394-99 (Nov. 2012 clinical assessment noting poor insight, significant suicidal 7 ideation); Tr. 400-02 (Dec. 2012 psychiatrist note identifying depression, panic, 8 social avoidance and suicidality). Neither Dr. Moon, nor the state agency 9 psychological consultants, whose opinions were completed in 2013 and early 2014 10 and accorded significant weight, had the benefit of the nearly two-year period of 11 mental health treatment records. However, Dr. Moon had the additional benefit of 12 personally examining Plaintiff. That Dr. Moon did not conduct a record review is 13 not, in this instance, a specific and legitimate basis to discount Dr. Moon’s opinion 14 and accord significant weight to the non-examining state agency psychological 15 consultants. 16 The ALJ also found that Dr. Moon’s limitations were inconsistent with 17 Plaintiff’s ability to “live with a roommate” and his significant other. Tr. 34-35. 18 An ALJ may discount an opinion that is inconsistent with a claimant’s reported 19 functioning. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 20 (9th Cir. 1999). However, the ALJ failed to explain how living with another 2 ORDER - 19 1 contradicts the assessed limitation related to the ability to maintain appropriate 2 behavior in a work setting. Moreover, the record related to Plaintiff’s living 3 arrangements evidenced challenging interactions with others which the ALJ did 4 not discuss. Tr. 85 (“She’s been a real trooper, though. . . . it’s very difficult to 5 have a relationship with me because of the way I am.”); Tr. 529 (“overwhelmed” 6 with his new girlfriend); Tr. 535 (roommate moved out); Tr. 82 (relating anger 7 with girlfriend’s daughter living with them). This was not a specific, legitimate 8 reason to give limited weight to Dr. Moon’s opinion. 9 Finally, the ALJ discounted Dr. Moon’s opinion because his marked 10 limitations were inconsistent with his psychiatric observations on examination and 11 inconsistent with the longitudinal record. Tr. 35. A factor to evaluating any 12 medical opinion includes the amount of relevant evidence that supports the 13 opinion. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. 14 Astrue, 495 F.3d 625, 631 (9th Cir. 2007). However, an ALJ may not selectively 15 consider medical reports. Plaintiff describes the evidence related to Plaintiff’s 16 interactions with Dr. Moon and other providers, contrary to the ALJ’s 17 interpretation of the record. ECF No. 17 at 12-13 (citing Tr. 412-18 (Plaintiff was 18 anxious, depressed and tearful on examination with Dr. Moon); Tr. 501-02 19 (Plaintiff was discharged from his primary care provider’s practice because of 20 abusive language; and Plaintiff “because of his disrespect/abusive language to the 2 ORDER - 20 1 doctor and on the basis not in agreement with treatment plan”); Tr. 575 (Plaintiff 2 became upset in therapist’s waiting room and started to cuss when therapist 3 stepped in and met with Plaintiff)). As a remand is necessary to reconsider the 4 record pertaining to Plaintiff’s mental limitations, the ALJ should reconsider the 5 weight assigned to the opinions of Dr. Moon in light of the overall record on 6 remand. 7 8 B. Step Five Finally, Plaintiff alleges that the ALJ’s step five determination is not 9 supported by substantial evidence. ECF No. 17 at 19. Plaintiff’s contention is 10 based upon the ALJ’s failure to incorporate the opinions of Dr. Moon and Mr. 11 Thoma into the residual functional capacity and hypothetical posed to the 12 vocational expert. ECF No. 17 at 19. Because the Court has already concluded the 13 ALJ erred in reviewing the medical evidence and that this matter should be 14 reversed and remanded for further consideration, the remainder of the sequential 15 disability evaluation, including step five, will need to be reassessed anew on 16 remand. 17 18 19 20 2 ORDER - 21 1 2 C. Remedy Plaintiff urges the Court to “remand for further proceedings at the very 3 least” or remand for an immediate award of benefits under the credit-as-true 4 doctrine. ECF No. 17 at 20. 5 When the Court reverses an ALJ’s decision for error, the Court “ordinarily 6 must remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 7 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 8 2004) (“the proper course, except in rare circumstances, is to remand to the agency 9 for additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. 10 Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). The Court may not award benefits 11 under the credit-as-true rule unless the record has been fully developed, further 12 administrative proceedings would serve no useful purpose, and there is no “serious 13 doubt” that the Plaintiff is, in fact disabled. Revels v. Berryhill, 874 F.3d 648, 668 14 (9th Cir. 2017); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). These 15 requirements are not satisfied. 16 Accordingly, the Court remands this case for further proceedings consistent 17 with this Order. On remand, the ALJ is instructed to reconsider the medical 18 evidence and if necessary, order consultative examinations and/or take testimony 19 from a psychological expert. The ALJ shall perform the five-step inquiry anew. 20 2 ORDER - 22 1 2 CONCLUSION Having reviewed the record and the ALJ’s findings, this court concludes the 3 ALJ’s decision is not supported by substantial evidence and free of harmful legal 4 error. Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is GRANTED. 6 2. Defendant’s Motion for Summary Judgment, ECF No.18, is DENIED. 7 3. The Court enter JUDGMENT in favor of Plaintiff REVERSING and 8 REMANDING the matter to the Commissioner of Social Security for further 9 proceedings consistent with this recommendation pursuant to sentence four of 42 10 U.S.C. § 405(g). 11 The District Court Executive is directed to file this Order, provide copies to 12 counsel, and CLOSE THE FILE. 13 DATED December 28, 2018. 14 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 2 ORDER - 23

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