Kern v. Saul, No. 4:2019cv05261 - Document 13 (E.D. Wash. 2020)
Court Description: ORDER GRANTING 10 PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND DENYING 11 DEFENDANT'S SUMMARY-JUDGMENT MOTION. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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g the counseling sessions and recommended breathing and coping 3 skills, along with medical management, that Plaintiff continued to have difficulties 4 regulating his emotions.46 For instance, Ms. Mitchell noted that Plaintiff had an 5 altercation with a medical provider that caused him to be discharged from the 6 provider’s services—this incident is reflected in other medical records as well.47 7 Considering Ms. Mitchell’s treatment notes, the ALJ’s bare-bones proffered reasons 8 of “no explanation for her ratings” and “not supported by her treatment notes” were 9 not specific and germane reasons supported by substantial evidence to discount 10 Ms. Mitchell’s opinion. Moreover, Ms. Mitchell’s opined limitations are consistent 11 with the statements from Plaintiff’s friends and Dr. Nestler’s opinion.48 12 3. 13 14 15 16 Kirsten Nestler, M.D. In April 2016, Dr. Nestler conducted a mental-health consultative examination of Plaintiff.49 Dr. Nestler diagnosed Plaintiff with unspecified personality disorder. She opined that Plaintiff would not have difficulty performing simple and repetitive tasks or performing detailed or complex tasks, but that he 17 18 19 20 21 22 45 AR 591-95, 615, 618 & 624. 46 AR 591, 605, 613, & 615. 47 AR 615 & 423. 48 AR 321-25. 49 AR 373-77. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1072 Page 13 of 20 1 would have difficulty due to his personality disorder accepting instructions from 2 supervisors and interacting with coworkers and the public, and that he may have 3 difficulty due to his personality disorder performing work activities on a consistent 4 basis without special or additional instructions, maintaining regular attendance in 5 the workplace, completing a normal workday/workweek without interruptions, and 6 dealing with the usual stress encountered in the workplace. 7 The ALJ gave partial weight to Dr. Nestler’s opinion because Dr. Nestler 8 indicated that Plaintiff could be exaggerating his symptoms and she was concerned 9 that she could not properly evaluate Plaintiff’s limitations due to his hostility.50 10 Evidence that a claimant exaggerated his symptoms to a provider is a reason 11 to reject the doctor’s conclusions if the doctor relied on the exaggerated 12 symptoms.51 Here, Dr. Nestler stated: “[Plaintiff] is a poor historian and without 13 more outside records, it is very difficult to evaluate his prognosis further. It is 14 possible that he could be exaggerating his symptoms today. Without more outside 15 records to corroborate, it is very difficult for me to tell.”52 The only outside record 16 that Dr. Nestler reviewed was a single-page January 30, 2015 office visit note 17 signed by Dr. Kirk Strosahl regarding Plaintiff’s referral for an evaluation and 18 19 20 21 22 50 AR 21. 51 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 52 AR 376. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1073 Page 14 of 20 1 management of depression and stress associated with IBS.53 While this note is 2 signed by Dr. Strosahl, the 30-minute interview was conducted by Dr. Silberleitner, 3 who found that Plaintiff did not seem to be struggling with depression or anxiety 4 but rather that stress was affecting his IBS.54 This one record fails to accurately 5 reflect the waxing and waning of Plaintiff’s psychological symptoms, which were 6 later diagnosed to be related to PTSD. As the ALJ otherwise recognized, the record 7 reflects that Plaintiff’s mood and affect varied from labile to depressed and flat to 8 appropriate.55 As to the cited “appropriate” mood and affect findings, these were 9 contained in medical notes related to Plaintiff’s physical conditions.56 In 10 comparison, in the notes related to an appointment to establish care, Plaintiff was 11 noted to be anxious with a depressed mood and poor insight and judgment.57 12 Likewise, during a psychiatric diagnostic evaluation, Plaintiff was noted to have an 13 anxious mood, constricted affect, paranoid thought content, and partial insight.58 14 15 16 17 18 19 20 21 22 53 AR 344 & 373. 54 AR 344. 55 AR 20. 56 AR 20 (citing AR 415 (IBS and emesis)); AR 509 (abdominal pain and heart concerns); AR 515 (emesis and IBS); AR 520 (syncope follow-up); AR 525 (vitamin D and IBS), & AR 530 (DSHS evaluation for IBS). 57 AR 538-41. 58 AR 555-59. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1074 Page 15 of 20 1 During a medication management appointment and emergency room visits, 2 Plaintiff was observed to have thought blocking, an anxious mood, and to be 3 nervous, anxious, and depressed.59 These records, along with Ms. Mitchell’s 4 treatment notes and the supporting letters from Plaintiff’s friends, indicate that 5 Plaintiff’s psychological symptoms waxed and waned and that he had difficulty 6 with hostility and anger.60 Plaintiff’s noted hostility and anger are consistent with 7 Plaintiff’s hostile presentation during Dr. Nestler’s examination. For instance, Dr. 8 Nestler noted that Plaintiff got derailed, he was difficult to redirect, his speech was 9 very loud and pressured, he yelled on two occasions, and he was hostile and angry 10 with ongoing psychomotor agitation throughout the interview.61 11 On this record, the ALJ’s proffered reason that Dr. Nestler “could not 12 properly evaluate [Plaintiff’s] limitations due to his hostility”62 is not a specific and 13 legitimate reason supported by substantial evidence to discount Dr. Nestler’s 14 15 16 17 18 19 20 21 22 59 AR 570-73, 692, & 848. 60 See AR 321 (noting that Plaintiff yells a lot); AR 323 (noting that Plaintiff is “very loud” and is “always on high alert”); AR 324-25 (noting that Plaintiff will “lash out to someone he believes is an idiot or stands on uncertain grounds on a subject he is compassionate about” and that he “rub[s] many the wrong way with his blunt language and sudden tone shifts, usually into the negative”). 61 AR 375. 62 AR 21. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1075 Page 16 of 20 1 opined limitations, particularly since Dr. Nestler noted that a review of more 2 outside records would aid in her evaluation of Plaintiff’s prognosis. 3 4. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Consequential Error While the RFC limits Plaintiff to work with superficial contact with the public and only occasional interactions with coworkers and supervisors, it is unclear on this record whether these limitations sufficiently incorporate Dr. Nestler’s and Ms. Mitchell’s opined limitations. For instance, Dr. Nestler opined that Plaintiff may have difficulty performing work activities on a consistent basis without special or additional instruction and maintaining attendance and pace due to his personality disorder. And Ms. Mitchell opined marked and extreme socialinteraction, adaptation, and sustained concentration and persistence limitations. Without a more meaningful explanation by the ALJ as to why these opinions should be discounted, the Court is unable to assess whether the ALJ’s RFC is supported by substantial evidence. B. Other Steps: The ALJ must reevaluate. Because the ALJ’s weighing of the medical evidence impacted his weighing of Plaintiff’s symptom reports (both mental-health symptoms and IBS symptoms, which are triggered by stress), the Court will not analyze Plaintiff’s remaining claims. Instead, on remand, when weighing Plaintiff’s symptom reports, the ALJ must more meaningfully explain how Plaintiff’s reported IBS symptoms, including waxing and waning of abdominal pain and diarrhea, are inconsistent with the medical record and his activities of daily living. Neither the ALJ nor a physician 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1076 Page 17 of 20 1 explained how the existence of only mild gastritis and a limited number of colon 2 polyps are inconsistent with Plaintiff’s reported IBS symptoms, which result in a 3 purported need to use the restroom or lie down due to pain several times a day 4 when his IBS flares. Moreover, the medical record reveals that Plaintiff was 5 observed with tenderness in his abdomen during several medical appointments and 6 emergency room visits.63 And per documentation provided by Ms. Mitchell, 7 Plaintiff’s reported symptoms are also consistent with his diagnosed PTSD, which 8 affects his IBS symptoms, including the documented weight loss.64 Further, 9 Plaintiff’s supporting letters from his friends are consistent with his reported 10 symptoms.65 Finally, the ALJ must be mindful that a claimant can arrange daily 11 living activities to accommodate limitations resulting from symptoms, but that full- 12 time work may not similarly accommodate such limitations.66 13 C. 14 15 Remand for Further Proceedings Plaintiff submits a remand for payment of benefits is warranted. The Court declines to award benefits. 16 17 18 19 20 21 22 63 See AR 380, 430, 530, 692, 697, 700, 714, 726, 789, 800, 813; 848, 859, 895, & 904; see also AR 805 & 811 (noting that stool was watery with no solid pieces). 64 AR 348, 339, 365, & 379, 980-82. 65 AR 320-26. 66 See Molina, 674 F.3d at 1112-13. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1077 Page 18 of 20 1 The decision whether to remand a case for additional evidence, or simply to 2 award benefits is within the discretion of the court.”67 When the court reverses an 3 ALJ’s decision for error, the court “ordinarily must remand to the agency for 4 further proceedings.”68 However, the Ninth Circuit has “stated or implied that it 5 would be an abuse of discretion for a district court not to remand for an award of 6 benefits” when three credit-as-true conditions are met and the record reflects no 7 serious doubt that the claimant is disabled.69 8 Because Plaintiff did not begin to participate in consistent psychotherapy 9 until the fall of 2017, the extent of the limitations resulting from Plaintiff’s PTSD 10 and related IBS are uncertain. Thus, what additional exertional and non-exertional 11 limitations are to be added to the RFC, such as ready access to a bathroom or 12 additional bathroom breaks, is uncertain, as is whether there are available jobs 13 considering the additional limitations. Therefore, the ALJ is to conduct additional 14 proceedings, including considering whether a new consultative psychological 15 16 17 18 19 20 21 22 67 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 68 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 69 Garrison, 759 F.3d at 1020 (citations omitted). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 Case 4:19-cv-05261-EFS ECF No. 13 filed 07/15/20 PageID.1078 Page 19 of 20 1 examination is required given that Plaintiff has since been diagnosed with PTSD 2 and participated in psychotherapy. The Court recommends that the consultative 3 examiner be given enough medical records to allow for a longitudinal perspective 4 as to Plaintiff’s psychological health. 70 The ALJ should also consider whether 5 testimony should be received from a medical expert pertaining to IBS. The ALJ is 6 to then reweigh the medical opinions (both physical and psychological) and 7 Plaintiff’s symptom reports and reevaluate the sequential process. 8 9 Accordingly, remand for further proceedings, rather than for an award of benefits, is necessary.71 10 V. Conclusion 11 Accordingly, IT IS HEREBY ORDERED: 12 1. 13 Plaintiff’s Motion for Summary Judgment, ECF No. 11, is GRANTED. 14 2. 15 The Commissioner’s Motion for Summary Judgment, ECF No. 12, is DENIED. 16 17 18 19 20 21 22 70 If a consultative examination is ordered, the consultative examiner is to append the records that the examiner reviewed to the report, or at a minimum clearly identify the records reviewed. 71 See Garrison, 759 F.3d at 1021; Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 Case 4:19-cv-05261-EFS 1 3. ECF No. 13 filed 07/15/20 PageID.1079 Page 20 of 20 The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 2 REVERSING and REMANDING the matter to the Commissioner of 3 Social Security for further proceedings consistent with this 4 recommendation pursuant to sentence four of 42 U.S.C. § 405(g). 5 4. 6 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order, 7 8 The case shall be CLOSED. provide copies to all counsel, and close the file. DATED this 15th day of July 2020. 9 10 11 s/Edward F. Shea _____________ EDWARD F. SHEA Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20
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