Young v. Kijakazi, No. 4:2020cv05190 - Document 26 (E.D. Wash. 2022)
Court Description: ORDER GRANTING 21 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 24 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. REVERSING and REMANDING the matter to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). File is CLOSED. Signed by Judge Mary K. Dimke. (SG, Case Administrator)
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Young v. Kijakazi Doc. 26 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 31, 2022 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 TERRANCE Y.,1 8 No. 4:20-cv-05190-MKD Plaintiff, 9 vs. 10 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 11 SECURITY, 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 21, 24 Defendant. 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 21, 24. The Court, having reviewed the administrative record and the parties’ 15 briefing, is fully informed. For the reasons discussed below, the Court grants 16 Plaintiff’s motion, ECF No. 21, and denies Defendant’s motion, ECF No. 24. 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 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), superseded on other grounds by 20 C.F.R. §§ 2 ORDER - 2 1 404.1502(a), 416.920(a). Further, a district court “may not reverse an ALJ’s 2 decision on account of an error that is harmless.” Id. An error is harmless “where 3 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 4 1115 (quotation and citation omitted). The party appealing the ALJ’s decision 5 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 6 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 14 “of such severity that he is not only unable to do his previous work[,] but cannot, 15 considering his age, education, and work experience, engage in any other kind of 16 substantial gainful work which exists in the national economy.” 42 U.S.C. § 17 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 20 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 2 ORDER - 3 1 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 2 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 3 C.F.R. § 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 7 “any impairment or combination of impairments which significantly limits [his or 8 her] physical or mental ability to do basic work activities,” the analysis proceeds to 9 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 10 this severity threshold, however, the Commissioner must find that the claimant is 11 not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude 14 a person from engaging in substantial gainful activity. 20 C.F.R. § 15 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 416.920(d). 18 If the severity of the claimant’s impairment does not meet or exceed the 19 severity of the enumerated impairments, the Commissioner must pause to assess 20 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 ORDER - 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 3 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 7 capable of performing past relevant work, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 9 performing such work, the analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 13 must also consider vocational factors such as the claimant’s age, education and 14 past work experience. Id. If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 16 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 17 concludes with a finding that the claimant is disabled and is therefore entitled to 18 benefits. Id. 19 The claimant bears the burden of proof at steps one through four above. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 2 ORDER - 5 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 4 700 F.3d 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 On June 29, 2017, Plaintiff applied for Title XVI supplemental security 7 income benefits alleging a disability onset date of January 1, 2017. Tr. 20, 83, 8 176-85. The application was denied initially, and on reconsideration. Tr. 102-10, 9 114-20. Plaintiff appeared before an administrative law judge (ALJ) on October 10 11, 2019. Tr. 38-68. On October 30, 2019, the ALJ denied Plaintiff’s claim. Tr. 11 17-37. 12 At step one of the sequential evaluation process, the ALJ found Plaintiff has 13 not engaged in substantial gainful activity since June 29, 2017, the application 14 date. Tr. 21. At step two, the ALJ found that Plaintiff has the following severe 15 impairment: lumbar degenerative disc disease. Id. 16 At step three, the ALJ found Plaintiff does not have an impairment or 17 combination of impairments that meets or medically equals the severity of a listed 18 impairment. Tr. 26. The ALJ then concluded that Plaintiff has the RFC to perform 19 medium work with the following limitations: 20 2 He can frequently stoop and climb ramps, stairs, ladders, or scaffolds. He must avoid occasional exposure to extreme cold temperatures and ORDER - 6 1 2 hazards (dangerous moving machinery and unprotected heights). He is limited to the performance of simple, routine tasks with a reasoning level of 3 or less due to physical impairments affecting concentration, persistence and keeping pace capabilities. 3 Tr. 26-27. 4 At step four, the ALJ found Plaintiff is unable to perform any past relevant 5 work. Tr. 31. At step five, the ALJ found that, considering Plaintiff’s age, 6 education, work experience, RFC, and testimony from the vocational expert, there 7 were jobs that existed in significant numbers in the national economy that Plaintiff 8 could perform, such as laundry worker, industrial cleaner, and stores laborer. Tr. 9 32. Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in 10 the Social Security Act, from the date of the application through the date of the 11 decision. Tr. 32-33. 12 On August 12, 2020, the Appeals Council denied review of the ALJ’s 13 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 14 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 15 ISSUES 16 Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 him supplemental security income benefits under Title XVI of the Social Security 18 Act. Plaintiff raises the following issues for review: 19 1. Whether the ALJ properly evaluated the medical opinion evidence; 20 2. Whether the ALJ conducted a proper step-two analysis; 2 ORDER - 7 1 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 2 4. Whether the ALJ conducted a proper step-five analysis. 3 ECF No. 21 at 6-7. 4 DISCUSSION 5 A. Medical Opinion Evidence 6 Plaintiff contends the ALJ erred in his consideration of the opinions of N.K. 7 Marks, Ph.D., Meneleo Lilagan, M.D., and Steven Rode, D.O. ECF No. 21 at 98 14. 9 As an initial matter, for claims filed on or after March 27, 2017, new 10 regulations apply that change the framework for how an ALJ must evaluate 11 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 12 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 13 C.F.R. § 416.920c. The new regulations provide that the ALJ will no longer “give 14 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 15 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 16 416.920c(a). Instead, an ALJ must consider and evaluate the persuasiveness of all 17 medical opinions or prior administrative medical findings from medical sources. 18 20 C.F.R. § 416.920c(a) and (b). The factors for evaluating the persuasiveness of 19 medical opinions and prior administrative medical findings include supportability, 20 consistency, relationship with the claimant (including length of the treatment, 2 ORDER - 8 1 frequency of examinations, purpose of the treatment, extent of the treatment, and 2 the existence of an examination), specialization, and “other factors that tend to 3 support or contradict a medical opinion or prior administrative medical finding” 4 (including, but not limited to, “evidence showing a medical source has familiarity 5 with the other evidence in the claim or an understanding of our disability 6 program’s policies and evidentiary requirements”). 20 C.F.R. § 416.920c(c)(1)7 (5). 8 Supportability and consistency are the most important factors, and therefore 9 the ALJ is required to explain how both factors were considered. 20 C.F.R. § 10 416.920c(b)(2). Supportability and consistency are explained in the regulations: 11 12 13 14 15 16 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 17 20 C.F.R. § 416.920c(c)(1)-(2). The ALJ may, but is not required to, explain how 18 the other factors were considered. 20 C.F.R. § 416.920c(b)(2). However, when 19 two or more medical opinions or prior administrative findings “about the same 20 issue are both equally well-supported ... and consistent with the record ... but are 2 ORDER - 9 1 not exactly the same,” the ALJ is required to explain how “the other most 2 persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 3 § 416.920c(b)(3). 4 The parties disagree over whether Ninth Circuit case law continues to be 5 controlling in light of the amended regulations, specifically whether the “clear and 6 convincing” and “specific and legitimate” standards still apply. ECF No. 24 at 97 11; ECF No. 25 at 1-2. “It remains to be seen whether the new regulations will 8 meaningfully change how the Ninth Circuit determines the adequacy of [an] ALJ’s 9 reasoning and whether the Ninth Circuit will continue to require that an ALJ 10 provide ‘clear and convincing’ or ‘specific and legitimate reasons’ in the analysis 11 of medical opinions, or some variation of those standards.” Gary T. v. Saul, No. 12 EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 13 2020) (citing Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *3 14 (W.D. Wash. Apr. 9, 2020)). “Nevertheless, the Court is mindful that it must defer 15 to the new regulations, even where they conflict with prior judicial precedent, 16 unless the prior judicial construction ‘follows from the unambiguous terms of the 17 statute and thus leaves no room for agency discretion.’” Gary T., 2020 WL 18 3510871, at *3 (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 19 Services, 545 U.S. 967, 981-82 (2005); Schisler v. Sullivan, 3 F.3d 563, 567-58 (2d 20 Cir. 1993) (“New regulations at variance with prior judicial precedents are upheld 2 ORDER - 10 1 unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 2 capricious.’”). 3 There is not a consensus among the district courts as to whether the “clear 4 and convincing” and “specific and legitimate” standards continue to apply. See, 5 e.g., Kathleen G. v. Comm’r of Soc. Sec., 2020 WL 6581012, at *3 (W.D. Wash. 6 Nov. 10, 2020) (applying the specific and legitimate standard under the new 7 regulations); Timothy Mitchell B., v. Kijakazi, 2021 WL 3568209, at *5 (C.D. Cal. 8 Aug. 11, 2021) (stating the court defers to the new regulations); Agans v. Saul, 9 2021 WL 1388610, at *7 (E.D. Cal. Apr. 13, 2021) (concluding that the new 10 regulations displace the treating physician rule and the new regulations control); 11 Madison L. v. Kijakazi, No. 20-CV-06417-TSH, 2021 WL 3885949, at *4-6 (N.D. 12 Cal. Aug. 31, 2021) (applying only the new regulations and not the specific and 13 legitimate nor clear and convincing standard). This Court has held that an ALJ did 14 not err in applying the new regulations over Ninth Circuit precedent, because the 15 result did not contravene the Administrative Procedure Act’s requirement that 16 decisions include a statement of “findings and conclusions, and the reasons or basis 17 therefor, on all the material issues of fact, law, or discretion presented on the 18 record.” See, e.g., Jeremiah F. v. Kijakazi, No. 2:20-CV-00367-SAB, 2021 WL 19 4071863, at *5 (E.D. Wash. Sept. 7, 2021). Nevertheless, it is not clear that the 20 Court’s analysis in this matter would differ in any significant respect under the 2 ORDER - 11 1 specific and legitimate standard set forth in Lester v. Chater, 81 F.3d 821, 830-31 2 (9th Cir. 1995). 3 1. Dr. Marks 4 On January 17, 2018 Dr. Marks conducted a psychological examination and 5 rendered an opinion on Plaintiff’s functioning for Washington DSHS. Tr. 337-42 6 (duplicate at 355-60). Dr. Marks diagnosed Plaintiff with major depressive 7 disorder, recurrent episode, moderate; generalized anxiety disorder; persistent 8 depressive disorder (dysthymia); and she noted diagnoses to be ruled out, including 9 unspecified neurocognitive disorder, unspecified or unknown substance-related 10 disorder, along with possible ADHD. Tr. 339. Dr. Marks opined Plaintiff has 11 severe limits in his ability to set realistic goals and plan independently; marked 12 limits in his ability to understand, remember, and persist in tasks by following 13 detailed instructions, in his ability to learn new tasks, in his ability to perform 14 routine tasks without special supervision, in his ability to communicate and 15 perform effectively in a work setting, and in his ability to complete a normal 16 workday and workweek without interruptions from psychologically based 17 symptoms; he has moderate limitation in his ability to understand, remember, and 18 persist in tasks by following very short and simple instructions, adapt to changes in 19 a routine work setting, make simple work related decisions, be aware of normal 20 hazards and take appropriate precautions, ask simple questions or request 2 ORDER - 12 1 assistance, and to maintain appropriate behavior in a work setting. Tr. 340. Dr. 2 Marks opined Plaintiff’s impairments have an overall moderate severity rating, 3 were not primarily the result of alcohol or drug use within the past 60 days, and 4 would persist following 60 days of sobriety, but also that chemical dependency 5 assessment was recommended; she opined his impairments were expected to last 6 12 months with treatment. Id. She also recommended counseling, assistance with 7 housing, case management and further assessment for chemical dependency and 8 cognitive issues. Id. The ALJ found Dr. Marks’ opinion unpersuasive. 9 The ALJ found “despite finding numerous moderate and marked limitations 10 in basic work activity, and a severe limitation … yet overall severity was 11 considered only moderate, which appears internally inconsistent and may reflect 12 Dr. Marks’ own ambivalence about her assessment.” Tr. 25. Supportability is one 13 of the most important factors an ALJ must consider when determining how 14 persuasive a medical opinion is. 20 C.F.R. § 416.920c(b)(2). The more relevant 15 objective evidence and supporting explanations that support a medical opinion, the 16 more persuasive the medical opinion is. 20 C.F.R. § 416.920c(c)(1). The ALJ 17 explained that Dr. Marks noted “his description of symptoms was vague, and that 18 chemical dependence factors could not be ruled out as contributing to his report of 19 memory and cognitive problems”; and that she made a disclaimer that her findings 20 2 ORDER - 13 1 were based on Plaintiff’s self-report along with clinical presentation at the time of 2 the evaluation and that, as such, other sources should also be considered. Tr. 25. 3 First, the ALJ found Dr. Marks’ opinion internally inconsistent because she 4 determined overall severity was moderate. Id. Plaintiff contends that Dr. Marks’ 5 determination of overall moderate severity is consistent with her individual 6 findings because Dr. Marks found numerous moderate limitations; Plaintiff points 7 out “Dr. Marks assessed moderate limitations in six out of 12 basic work activities 8 (50[percent]) ….” ECF No. 21 at 11. The ALJ acknowledges Dr. Marks found 9 several moderate limitations and does not explain how Dr. Mark’s finding of 10 overall moderate severity is internally inconsistent with her assessment or how this 11 reflects her ambivalence with her assessment. See Tr. 25. The ALJ’s conclusory 12 statements fail to meet the burden of “setting out a detailed and thorough summary 13 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 14 making findings.” Trevizo v. Berryhill, 871 F.3d 644, 675 (9th Cir. 2017) (internal 15 citations omitted). The ALJ’s conclusion that Dr. Marks’ determination was 16 internally inconsistent because she found overall moderate severity is not 17 supported by substantial evidence. 18 The ALJ also concluded that her determination of overall moderate severity 19 may reflect Dr. Marks’ ambivalence about her assessment because “she noted his 20 description of symptoms was vague and that chemical dependence factors could 2 ORDER - 14 1 not be ruled out as contributing to this memory and cognitive problems.” Tr. 25. 2 However, Dr. Marks uses the term vague only once in her evaluation, to note 3 Plaintiff’s “description was vague” concerning past ADD symptoms or diagnosis 4 under “Medical/Mental Health Treatment History,” and this does not support a 5 conclusion Dr. Mark was overall ambivalent with her assessment. Tr. 337. As for 6 chemical dependency, Dr. Marks indicated that he presented with “memory 7 problems, cognitive problems,” and that “[chemical dependency] factors could not 8 be ruled out as a contributing factor” although she indicated he “was not under the 9 influence today.” Tr. 337-38. She also explained that the cognitive or memory 10 problems he presented with “may be the result of head injuries from bike accident 11 or [chemical dependency] factors. Further assessment recommended.” Tr. 339. 12 Upon mental status testing, Dr. Marks observed several abnormalities including 13 poorly organized speech, minimal eye contact, hopeless attitude, depressed and 14 anxious mood and affect, along with poor long term memory, fund of knowledge, 15 and concentration; her assessed limitations appear within the range of her findings 16 upon clinical interview and abnormal findings upon mental status exam, and the 17 ALJ does not explain how her opinion concerning possible cognitive impairment 18 or chemical dependency is internally inconsistent or ambivalent. See Tr. 341-42. 19 Additionally, the ALJ did not assess the consistency of Dr. Marks’ 2018 20 opinion with her findings from a 2016 evaluation. In 2016, Dr. Marks diagnosed 2 ORDER - 15 1 him with major depression, severe, while in 2018 her diagnosis was major 2 depressive disorder, moderate. Compare Tr. 339, Tr. 251. Dr. Marks assessed 3 overall marked limitations in 2016, with recommendations including immediate 4 intervention for depression, and she noted he should be monitored for increasing 5 suicidality. Tr. 352. Dr. Marks diagnoses in 2016 also included an alcohol related 6 disorder in patrial remission. Tr. 351. The ALJ did not discuss her 2016 opinion, 7 however, concluding that it was irrelevant because it was outside the period at 8 issue and “listed alcohol problems …while not separating out the [Plaintiff’s] 9 functional abilities from the substance use disorder.” Tr. 26. As Plaintiff points 10 out, if chemical dependency in the past or during the period at issue contributes to 11 his mental health impairments, the ALJ must consider whether the limitations 12 remain in the absence of such use. ECF No. 21 at 12. Without discussion of the 13 consistency of Dr. Mark’ opinion with the longitudinal record, the Court is unable 14 to meaningfully review whether the ALJ’s interpretation of the evidence, rather 15 than Dr. Mark’s opinion, is rational. See Brown-Hunter v. Colvin, 806 F.3d 487, 16 492 (9th Cir. 2015). The ALJ does not explain why Dr. Marks’ opinion of overall 17 moderate limitation in 2018 reflects ambivalence about her assessment, and this 18 finding is not supported by substantial evidence. 19 The ALJ also found that Dr. Marks’ opinion was internally inconsistent 20 because she made a disclaimer that her evaluation was based on plaintiff’s self2 ORDER - 16 1 reports and clinical presentation at the time of the interview, and that as such other 2 sources in addition to this report should be considered. Tr. 25 (citing Tr. 337). 3 Plaintiff contends this language was not authored by Dr. Marks but is “preprinted 4 standard form language” on the DSHS forms. ECF No. 21 at 12. The Court notes 5 that Dr. Marks’ 2016 evaluation also contains this language, but a 2014 evaluation 6 by Dr. Moon does not. See 349-54, 299-303. A clinical interview and mental 7 status evaluation are objective measures and cannot be disregarded as mere self8 report. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Here, Dr. 9 Marks performed a clinical interview and administered psychological testing 10 including Beck depression and anxiety testing and performed a mental status exam. 11 See Tr. 337-42. There is no evidence of malingering and Dr. Marks noted Plaintiff 12 was cooperative. Tr. 341. The ALJ did not explain how Dr. Marks’ inclusion of a 13 general statement that her evaluation was based on client’s self-report along with 14 clinical presentation at the evaluation shows her opinion is internally inconsistent 15 or reflects ambivalence about her 2018 assessment, and the ALJ’s conclusions are 16 not supported by substantial evidence. 17 Additionally, the ALJ did not assess the consistency of Dr. Marks’ 2018 18 opinion with evidence from other sources in the longitudinal record, including the 19 opinion of Dr. Lewis, which the ALJ did not consider in his decision. Tr. 343-45. 20 Consistency is one of the most important factors an ALJ must consider when 2 ORDER - 17 1 determining how persuasive a medical opinion is. 20 C.F.R. § 416.920c(b)(2). 2 The more consistent an opinion is with the evidence from other sources, the more 3 persuasive the opinion is. 20 C.F.R. § 416.920c(c)(2). A few weeks after Dr. 4 Marks’ January 2018 evaluation, Janis Lewis, Ph.D. completed a Review of 5 Medical Evidence. Id. Dr. Lewis reviewed Dr. Marks’ evaluation, noting she 6 “didn’t mark limitation c. [Perform activities within a schedule, maintain regular 7 attendance and be punctual within customary tolerances]. I opined a marked 8 severity[,]”; Dr. Lewis also increased Plaintiff’s overall severity rating, noting 9 “changed overall severity to marked from moderate, based on the severity of 10 [Plaintiff’s] symptoms as written on the evaluation, his 5 marked [mental health] 11 limitations plus one severe limitations, [sic] his ‘chronic serious anxiety’ and the 12 likelihood of cognitive deficits.” Tr. 343-45. Dr. Lewis’ 2018 opinion is labeled a 13 “new decision,” see Tr. 344, and appears to amend or replace Dr. Mark’ opinion. 14 The ALJ did not discuss the opinion of Dr. Lewis and failed to assess the 15 consistency of Dr. Marks’ opinion with the longitudinal record, as required by the 16 regulations, and his conclusions are not supported by substantial evidence. 17 On remand, the ALJ is instructed to reconsider Dr. Marks’ opinions, along 18 with considering the opinion of Dr. Lewis and any other mental health opinions in 19 the record, using the factors of consistency and supportability as required by the 20 2 ORDER - 18 1 regulations. The ALJ is to incorporate the limitations into the RFC or give reasons 2 supported by substantial evidence to reject the opinions. 3 2. Dr. Lilagan 4 In January 2018, Dr. Lilagan conducted a physical functional evaluation and 5 rendered an opinion on Plaintiff’s functioning for Washington DSHS. 362-65. Dr. 6 Lilagan’s impression was low back pain with left sciatica and left clavicular pain, 7 with history of left clavicle fracture. Tr. 363. He opined Plaintiff had moderate 8 limitation in his ability to stand, walk, lift, carry, handle, push, pull, reach, stoop, 9 and crouch due to low back pain/sciatica; and moderate limitation in his ability to 10 lift, carry, handle, push, pull, and reach due to left clavicular pain. Id. Dr. Lilagan 11 opined that Plaintiff was capable of performing sedentary work and estimated that 12 the current limitation on work activities would persist with available treatment for 13 six months. Tr. 364. He further opined Plaintiff needed an orthopedic consult due 14 to his reports of tingling and numbness in his left lower extremity and his left 15 clavicle issues. Id. The ALJ did not address Dr. Lilagan’s opinion. 16 Plaintiff contends the ALJ erred by failing to discuss Dr. Lilagan’s opinion, 17 pointing out had the ALJ fully credited Dr. Lilagan’s opinion, he would have 18 reached a different disability determination. See ECF No 21 at 12-13. Defendant 19 concedes that the ALJ did not discuss the opinion, but argues any error was 20 harmless because Dr. Lilagan’s limitations were only temporary. ECF No. 24 at 2 ORDER - 19 1 14. Under the regulations, the ALJ must evaluate medical opinions using the 2 factors listed in 20 C.F.R. § 416.920c. Additionally, the ALJ is required to 3 consider “all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 4 1041 (9th Cir. 2008). While “[T]he ALJ is the final arbiter with respect to 5 resolving ambiguities in the medical evidence,” Tommasetti v. Astrue, 533 F.3d 6 1035, 1041 (9th Cir. 2008), the ALJ must also meet his burden of “setting out a 7 detailed and thorough summary of the facts and conflicting clinical evidence, 8 stating his interpretation thereof, and making findings.” Trevizo v. Berryhill, 871 9 F.3d 644, 675 (9th Cir. 2017) (internal citations omitted). 10 Given the matter is being remanded for the ALJ to reevaluate the opinion of 11 Dr. Marks and to consider the opinion of Dr. Lewis, upon remand the ALJ is also 12 directed to consider Dr. Lilagan’s opinion. The ALJ is to incorporate the 13 limitations into the RFC or give reasons supported by substantial evidence to reject 14 the opinion. 15 3. Dr. Rode 16 In November 2017, Dr. Rode conducted a physical consultative evaluation 17 and rendered an opinion on Plaintiff’s functioning. Tr. 331-35. Dr. Rode 18 diagnosed him with “sacral pain with low back pain with a history of motor vehicle 19 accident,” and “joint pains with a history of collar bone fracture with subtle 20 deformity but normal range of motion.” Tr. 334. He opined Plaintiff had no limit 2 ORDER - 20 1 in his ability to stand and walk and could sit for six hours in an eight hour 2 workday. Tr. 335. The ALJ found Dr. Rode’s opinion mostly persuasive. 3 Plaintiff contends the ALJ erred by relying on Dr. Rode’s opinion because 4 Dr. Rode did not review imaging after 2014, and imaging taken the day of his 2017 5 evaluation demonstrated “advanced progression of [Plaintiff’s] lumbar conditions.” 6 ECF No. 21 at 14. Defendant contends the ALJ reasonably assessed Dr. Rode’s 7 opinion and the ALJ took the x-rays into consideration when he included greater 8 limitations than those assessed by Dr. Rode. ECF No. 24 at 14-16. 9 Given the matter is being remanded for the ALJ to reevaluate other medical 10 opinions, the ALJ is also directed to reconsider Dr. Rode’s opinion. 11 Upon remand, the ALJ is instructed to reconsider all medical opinion 12 evidence using the factors of supportability and consistency as required by the 13 regulations, and to incorporate the limitations into the RFC or give reasons 14 supported by substantial evidence to reject the opinions. 15 16 B. Step Two Plaintiff contends the ALJ erred by failing find Plaintiff’s mental health 17 impairments severe. ECF No. 21 at 14-16. At step two of the sequential process, 18 the ALJ must determine whether the claimant suffers from a “severe” impairment, 19 20 2 ORDER - 21 1 i.e., one that significantly limits her physical or mental ability to do basic work 2 activities. 20 C.F.R. § 416.920(c). 3 To establish a severe impairment, the claimant must first demonstrate that 4 the impairment results from anatomical, physiological, or psychological 5 abnormalities that can be shown by medically acceptable clinical or laboratory 6 diagnostic techniques. 20 C.F.R. § 416.921. In other words, the claimant must 7 establish the existence of the physical or mental impairment through objective 8 medical evidence (i.e., signs, laboratory findings, or both) from an acceptable 9 medical source; the medical impairment cannot be established by the claimant’s 10 statement of symptoms, a diagnosis, or a medical opinion. 20 C.F.R. § 416.921. 11 An impairment may be found to be not severe when “medical evidence 12 establishes only a slight abnormality or a combination of slight abnormalities 13 which would have no more than a minimal effect on an individual’s ability to 14 work….” Social Security Ruling (SSR) 85-28 at *3. Similarly, an impairment is 15 not severe if it does not significantly limit a claimant’s physical or mental ability to 16 do basic work activities; which include walking, standing, sitting, lifting, pushing, 17 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 18 understanding, carrying out and remembering simple instructions; responding 19 appropriately to supervision, coworkers, and usual work situations; and dealing 20 2 ORDER - 22 1 with changes in a routine work setting. 20 C.F.R. § 416.922(a); SSR 85-28.2 2 Step two is “a de minimus screening device [used] to dispose of groundless 3 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 4 our normal standard of review to the requirements of step two, [the Court] must 5 determine whether the ALJ had substantial evidence to find that the medical 6 evidence clearly established that [Plaintiff] did not have a medically severe 7 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 8 (9th Cir. 2005). 9 As the case is being remanded for the ALJ to reconsider the medical opinion 10 evidence, the ALJ is also instructed to reconsider the step-two analysis. 11 C. Plaintiff’s Symptom Claims 12 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 13 convincing in discrediting his symptom claims. ECF No. 21 at 16-20. An ALJ 14 engages in a two-step analysis to determine whether to discount a claimant’s 15 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 16 “First, the ALJ must determine whether there is objective medical evidence of an 17 18 2 19 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 20 2 (1987). ORDER - 23 1 underlying impairment which could reasonably be expected to produce the pain or 2 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 3 “The claimant is not required to show that [the claimant’s] impairment could 4 reasonably be expected to cause the severity of the symptom [the claimant] has 5 alleged; [the claimant] need only show that it could reasonably have caused some 6 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 7 Second, “[i]f the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of 9 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 10 rejection.” Ghanim, 763 F.3d at 1163 (citations omitted). General findings are 11 insufficient; rather, the ALJ must identify what symptom claims are being 12 discounted and what evidence undermines these claims. Id. (quoting Lester, 81 13 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the 14 ALJ to sufficiently explain why it discounted claimant’s symptom claims)). “The 15 clear and convincing [evidence] standard is the most demanding required in Social 16 Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting 17 Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 18 Factors to be considered in evaluating the intensity, persistence, and limiting 19 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 20 duration, frequency, and intensity of pain or other symptoms; 3) factors that 2 ORDER - 24 1 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 2 side effects of any medication an individual takes or has taken to alleviate pain or 3 other symptoms; 5) treatment, other than medication, an individual receives or has 4 received for relief of pain or other symptoms; 6) any measures other than treatment 5 an individual uses or has used to relieve pain or other symptoms; and 7) any other 6 factors concerning an individual’s functional limitations and restrictions due to 7 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. 8 §416.929I. The ALJ is instructed to “consider all of the evidence in an 9 individual’s record,” to “determine how symptoms limit ability to perform work10 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 11 The ALJ found that Plaintiff’s medically determinable impairments could 12 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s assertion 13 of total disability under the Social Security Act is not supported by the weight of 14 the evidence. Tr. 28. 15 As the case is being remanded for the ALJ to reconsider the medical 16 opinion evidence, the ALJ is also instructed to reconsider Plaintiff’s symptom 17 claims in the context of the entire record. 18 19 E. Step Five Plaintiff contends the ALJ erred at step five. ECF No. 21 at 20. At step five 20 of the sequential evaluation analysis, the burden shifts to the Commissioner to 2 ORDER - 25 1 establish that 1) the claimant can perform other work, and 2) such work “exists in 2 significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran, 3 700 F.3d at 389. In assessing whether there is work available, the ALJ must rely 4 on complete hypotheticals posed to a vocational expert. Nguyen v. Chater, 100 5 F.3d 1462, 1467 (9th Cir. 1996). The ALJ’s hypothetical must be based on 6 medical assumptions supported by substantial evidence in the record that reflects 7 all of the claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 8 2001). The hypothetical should be “accurate, detailed, and supported by the 9 medical record.” Tackett, 180 F.3d at 1101. 10 Plaintiff contends the ALJ erred by failing to conduct an adequate analysis at 11 step five, based on the failure to address Dr. Lilagan’s opinion limiting Plaintiff to 12 sedentary work. ECF No. 21 at 20. As the case is being remanded for the ALJ to 13 reconsider the medical opinion evidence, the ALJ is also instructed to perform the 14 five-step analysis anew, including reconsidering the step-five analysis. 15 16 F. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. Id. 17 “The decision whether to remand a case for additional evidence, or simply to 18 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 19 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 20 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 2 ORDER - 26 1 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 2 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 3 proper course, except in rare circumstances, is to remand to the agency for 4 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 5 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 6 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 7 discretion for a district court not to remand for an award of benefits” when three 8 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 9 credit-as-true rule, where (1) the record has been fully developed and further 10 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 11 to provide legally sufficient reasons for rejecting evidence, whether claimant 12 testimony or medical opinion; and (3) if the improperly discredited evidence were 13 credited as true, the ALJ would be required to find the claimant disabled on 14 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 15 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 16 the Court will not remand for immediate payment of benefits if “the record as a 17 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 18 F.3d at 1021. 19 20 2 ORDER - 27 1 Here, the Court finds further proceedings are necessary to resolve conflicts 2 in the record, including conflicting medical opinions. As such, the case is 3 remanded for further proceedings consistent with this Order. 4 5 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is not supported by substantial evidence and not free of harmful 7 legal error. Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 21, is GRANTED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 24, is DENIED. 10 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 11 REVERSING and REMANDING the matter to the Commissioner of Social 12 Security for further proceedings consistent with this recommendation pursuant to 13 sentence four of 42 U.S.C. § 405(g). 14 The District Court Executive is directed to file this Order, provide copies to 15 counsel, and CLOSE THE FILE. 16 DATED March 31, 2022. 17 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 18 19 20 2 ORDER - 28
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