Hayden v. Colvin, No. 3:2013cv05790 - Document 15 (W.D. Wash. 2014)

Court Description: ORDER REVERSING AND REMANDING DEFENDANTS DECISION TO DENY BENEFITS signed by Judge Karen L Strombom. (MET)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 ELIZA HAYDEN, Case No. 3:13-cv-05790-KLS 7 8 9 Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER REVERSING AND REMANDING DEFENDANT S DECISION TO DENY BENEFITS 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of defendant s denial of her 13 applications for disability insurance and supplemental security income ( SSI ) benefits. 14 15 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the 16 parties have consented to have this matter heard by the undersigned Magistrate Judge. After 17 reviewing the parties briefs and the remaining record, the Court hereby finds that for the reasons 18 set forth below, defendant s decision to deny benefits should be reversed and that this matter 19 should be remanded for further administrative proceedings. 20 21 FACTUAL AND PROCEDURAL HISTORY 22 23 On September 20, 2010, plaintiff filed concurrent applications for disability insurance 24 benefits and SSI alleging disability as of December 8, 2008, due to depression and panic attacks. 25 See Administrative Record ( AR ) 206-16, 250. Plaintiff s applications were denied upon initial 26 administrative review and on reconsideration. See AR 139-42, 147-50. A hearing was held ORDER - 1 1 before an administrative law judge ( ALJ ) on March 21, 2012, at which plaintiff, represented 2 by counsel, appeared and testified, as did a vocational expert ( VE ) and plaintiff s mental health 3 counsel. See AR 41-92. 4 On April 2, 2012, the ALJ issued a decision in which plaintiff was determined to be not 5 disabled. See AR 16-36. Plaintiff s request for review of the ALJ s decision was denied by the 6 7 Appeals Council on July 13, 2013, making the ALJ s decision defendant s final decision. See 8 AR 1-6; see also 20 C.F.R. §§ 404.981, 416.1481. On September 10, 2013, plaintiff filed a 9 complaint in this Court seeking judicial review of the ALJ s decision. See Dkt. No. 1. The 10 administrative record was filed with the Court on December 13, 2013. See Dkt. No. 10. The 11 parties have completed their briefing, and thus this matter is now ripe for judicial review and a 12 decision by the Court. 13 Plaintiff argues the ALJ s decision should be reversed and remanded to defendant for 14 15 payment of benefits, or, alternately, further administrative proceedings, because the ALJ erred: 16 (1) in evaluating the medical evidence in the record; (2) in discounting plaintiff s credibility; (3) 17 in assessing plaintiff s residual functional capacity; and (4) in finding plaintiff to be capable of 18 returning to her past relevant work. The Court agrees the ALJ erred in determining plaintiff to 19 be not disabled, but, for the reasons set forth below, finds that while defendant s decision should 20 be reversed, this matter should be remanded for further administrative proceedings. 21 22 DISCUSSION 23 24 The determination of the Commissioner of Social Security (the Commissioner ) that a 25 claimant is not disabled must be upheld by the Court, if the proper legal standards have been 26 applied by the Commissioner, and substantial evidence in the record as a whole supports that ORDER - 2 1 determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. 2 Comm r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 3 522, 525 (E.D. Wash. 1991) ( A decision supported by substantial evidence will, nevertheless, 4 be set aside if the proper legal standards were not applied in weighing the evidence and making 5 the decision. ) (citing Brawner v. Sec y of Health and Human Serv., 839 F.2d 432, 433 (9th Cir. 6 7 1987)). 8 Substantial evidence is such relevant evidence as a reasonable mind might accept as 9 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation 10 omitted); see also Batson, 359 F.3d at 1193 ( [T]he Commissioner s findings are upheld if 11 supported by inferences reasonably drawn from the record. ). The substantial evidence test 12 requires that the reviewing court determine whether the Commissioner s decision is supported 13 by more than a scintilla of evidence, although less than a preponderance of the evidence is 14 15 required. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). If the evidence 16 admits of more than one rational interpretation, the Commissioner s decision must be upheld. 17 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) ( Where there is conflicting evidence 18 sufficient to support either outcome, we must affirm the decision actually made. ) (quoting 19 Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)). 1 20 21 22 1 23 24 25 26 As the Ninth Circuit has further explained: . . . It is immaterial that the evidence in a case would permit a different conclusion than that which the [Commissioner] reached. If the [Commissioner] s findings are supported by substantial evidence, the courts are required to accept them. It is the function of the [Commissioner], and not the court s to resolve conflicts in the evidence. While the court may not try the case de novo, neither may it abdicate its traditional function of review. It must scrutinize the record as a whole to determine whether the [Commissioner] s conclusions are rational. If they are . . . they must be upheld. Sorenson, 514 F.2dat 1119 n.10. ORDER - 3 1 2 3 4 I. The ALJ s Evaluation of the Medical Evidence in the Record Plaintiff argues the ALJ erred by failing to provide specific and legitimate reasons to reject the medical opinion of consultative examining psychologist Mary Lemberg, PhD. Dkt. No. 12, pp. 3-6. Dr. Lemberg opined plaintiff would not be able to perform work activities on a 5 consistent basis or maintain regular attendance in the workplace, due to her psychiatric 6 7 symptoms. AR 490. This opinion is significant because the VE testified that if an individual 8 was unable to complete her assigned work tasks at least one day per week or was off task 15 to 9 20 percent of the time, that individual would not be able to perform any work that exists in the 10 national economy. AR 88-90. The ALJ rejected Dr. Lemberg s opinion because: (1) it appeared 11 to be based primarily on plaintiff s subjective reports, which were not credible; (2) it was not 12 consistent with plaintiff s activity level; and (3) it was based on incomplete information 13 regarding plaintiff s work history as a caregiver. AR 29. These are not specific and legitimate 14 15 16 17 reasons supported by substantial evidence sufficient to reject the opinion of an examining psychologist. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). The ALJ is responsible for determining credibility and resolving ambiguities and 18 conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 19 Where the medical evidence in the record is not conclusive, questions of credibility and 20 resolution of conflicts are solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 21 22 642 (9th Cir. 1982). In such cases, the ALJ s conclusion must be upheld. Morgan v. Comm r 23 of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Determining whether 24 inconsistencies in the medical evidence are material (or are in fact inconsistencies at all) and 25 whether certain factors are relevant to discount the opinions of medical experts falls within this 26 responsibility. Id. at 603. ORDER - 4 1 The ALJ must provide clear and convincing reasons for rejecting the uncontradicted 2 opinion of an examining psychologist. Lester, 81 F.3d at 830. Even when an examining 3 psychologist s opinion is contradicted, that opinion can only be rejected for specific and 4 legitimate reasons that are supported by substantial evidence in the record. Id. at 830-31. 5 Based on the results of the consultative psychological examination, which included a 6 7 clinical interview, records review and mental status examination ( MSE ), Dr. Lemberg opined 8 plaintiff was limited in her ability to perform various work related functions and could not 9 perform work activities on a consistent basis nor maintain regular attendance in the workplace, 10 due to her psychiatric symptoms. AR 485-90. As discussed previously, Dr. Lemberg s opinion 11 is significant because the VE testified that an individual with these limitations would not be able 12 to perform any work that exists in the national economy. See AR 88-90. 13 The first reason relied on by the ALJ, that it appeared Dr. Lemberg s opinion was based 14 15 primarily on plaintiff s subjective reports, was not a specific and legitimate reason supported by 16 substantial evidence. See Lester, 81 F.3d at 830-31. In conjunction with the consultative 17 examination, Dr. Lemberg conducted an MSE and made clinical observations of plaintiff s 18 behaviors. See AR 488-89. Dr. Lemberg noted that plaintiff demonstrated significant 19 impairments on the [MSE] that is mostly likely the result of a combination of anxiety, cognitive 20 disorder from her probable brain injury, and depression. AR 490. In addition to plaintiff s 21 22 abnormal performance on MSE, Dr. Lemberg also made several objective clinical observations 23 regarding plaintiff s presentation at the examination. For example, Dr. Lemberg observed 24 plaintiff s behavior to be anxious, shaking at the end, tearing up at points, covering per mouth 25 with her hands at a few points. AR 488. Dr. Lemberg also noted plaintiff s affect was 26 anxious, somewhat dysphoric. AR 488. Contrary to the ALJ s assertion, there is nothing in ORDER - 5 1 Dr. Lemberg s report to suggest that Dr. Lemberg relied more heavily on plaintiff s description 2 of her symptoms than Dr. Lemberg s own objective clinical observations and findings. See Ryan 3 v. Comm r Soc. Sec. Admin., 528 F.3d 1194, 1200 (9th Cir. 2008). 4 Like the physical examination, the [MSE] is termed the objective portion of the patient 5 evaluation. Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status 6 7 Examination 4 (Oxford University Press 1993) (emphasis in original). The MSE generally is 8 conducted by medical professionals skilled and experienced in psychology and mental health. 9 Although anyone can have a conversation with a patient, [] appropriate knowledge, vocabulary 10 11 and skills can elevate the clinician s conversation to a [MSE]. Id. at 3. A mental health professional is trained to observe patients for signs of their mental health not rendered obvious 12 13 14 by the patient s subjective reports, in part because the patient s self-reported history is biased by their understanding, experiences, intellect and personality (id. at 4), and, in part, because it is 15 not uncommon for a person suffering from a mental illness to be unaware that her condition 16 reflects a potentially serious mental illness. Van Nguyen v. Chater, 100 F.3d 1462, 1465 (9th 17 Cir. 1996) (citation omitted). 18 Moreover, it is clear from Dr. Lemberg s report that Dr. Lemberg s opinion regarding 19 plaintiff s functional limitations was based, at least in part, on these objective findings. For 20 21 example, Dr. Lemberg specifically noted in her report that her opinion regarding plaintiff s 22 limitation in completing detailed and complex tasks was based on plaintiff s performance on the 23 MSE. See AR 490. Dr. Lemberg also noted that her opinion regarding plaintiff s difficulty 24 adapting to new environments was based on a combination of the clinical interview and MSE. 25 See AR 490. For these reasons, the ALJ s conclusion that Dr. Lemberg s examination was based 26 primarily on plaintiff s subjective complaints is not supported by substantial evidence in the ORDER - 6 1 record. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (finding ALJ s rejection 2 of doctor s opinion supported by substantial evidence when opinion was not supported by 3 rationale, treatment notes, objective findings, nor clinical observations). 4 The second reason relied on by the ALJ, that Dr. Lemberg s opinion was not consistent 5 with plaintiff s activities, was similarly not a specific and legitimate reason supported by 6 7 substantial evidence in the record. Lester, 81 F.3d at 830-31. An ALJ may properly reject the 8 opinion of an examining psychologist by setting out a detailed and thorough summary of the 9 facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. 10 Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 11 Here, however, the ALJ failed to explain how plaintiff activities were inconsistent with Dr. 12 Lemberg s findings. See AR 29. Although the ALJ discussed plaintiff s various reported 13 activities including the ability to drive her children to and from school, prepare meals, do 14 15 household chores, and grocery shop the ALJ offered no explanation of how these activities 16 were inconsistent with Dr. Lemberg s clinical findings or conclusions regarding plaintiff s 17 functional limitations in a work setting. See e.g. AR 23. Moreover, Dr. Lemberg s report 18 indicated that Dr. Lemberg considered many of the same daily activities including plaintiff s 19 ability to drive her children to school, cook meals, complete household chores and grocery 20 shop in forming her opinion regarding plaintiff s functional limitations. See AR 489. Because, 21 22 the ALJ provided no explanation for why his interpretation of this evidence, rather than Dr. 23 Lemberg s, was correct, the ALJ s rejection of Dr. Lemberg s opinion was not legally sufficient. 24 See Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)) 25 ( [t]he ALJ must do more than offer his conclusions. He must set forth his own interpretations 26 and explain why they, rather than the doctors , are correct ). ORDER - 7 1 The final reason relied on by the ALJ, that Dr. Lemberg s opinion was based on 2 incomplete information regarding plaintiff s past work as a care taker, also is not supported by 3 substantial evidence sufficient to reject the opinion of an examining psychologist. See Lester, 81 4 F.3d at 830-31. Here, the ALJ concluded that Dr. Lemberg based her opinion that plaintiff could 5 not maintain employment on an inaccurate or incomplete account of plaintiff s work history, 6 7 which, according to the ALJ, Dr. Lemberg understood to be working for a few days before 8 interference from symptoms. AR 29. In contrast, the ALJ concluded that plaintiff s caretaker 9 job for Ms. Pascal ended because the claimant was in a car accident not because of her mental 10 health symptoms. AR 29. It is important to note that there is conflicting evidence in the record 11 regarding plaintiff s work as a caregiver for Ms. Pascal. Plaintiff testified at the hearing that the 12 caregiver job for Ms. Pascal never started. See AR 58; but see AR 281(regarding work for Ms. 13 Pascal, plaintiff reported: Started this job could take job got into car accident hurt back and 14 15 neck [sic] ). 16 Although the ALJ s conclusion that plaintiff s work as a caretaker for Ms. Pascal ended 17 due to a car accident was a reasonable interpretation of conflicting evidence, as plaintiff points 18 out, the ALJ s use of this evidence to discredit Dr. Lemberg s opinion was inconsistent with the 19 ALJ s other findings regarding plaintiff s most recent work attempts. Based on these 20 inconsistencies, this Court cannot find that the ALJ s final reason for rejecting Dr. Lemberg s 21 22 23 24 25 opinion was supported by substantial evidence in the record as a whole. See Hoffman, 785 F.2d at 1425. After her alleged disability onset date, plaintiff worked at Fashion Bug, South Sound Dispatch, and Domino s Pizza. See AR 22. The ALJ considered this work and determined it 26 ORDER - 8 1 was an unsuccessful work attempt. AR 22. 2 In reaching this determination, the ALJ relied on 2 plaintiff s testimony that she was forced to leave these positions after short periods of time 3 because she was having panic attacks. See AR 22. The ALJ also considered plaintiff s post 4 onset date work as a caregiver for Ms. Pascal; however, the ALJ determined plaintiff did not 5 perform this work at substantial gainful levels. See AR 22. 6 The ALJ s rejection of Dr. Lemberg s opinion because Dr. Lemberg considered 7 8 plaintiff s report that she had only been able to work for a very short time (usually days) before 9 her symptoms lead her to quit was inconsistent with the ALJ s own reliance on plaintiff s 10 reports that she was recently forced to stop work after short periods of time due to her panic 11 attacks. Moreover, as discussed previously, there is nothing in Dr. Lemberg s report to indicate 12 Dr. Lemberg s opinion relied more heavily on plaintiff s own accounts of her symptoms than on 13 objective examination findings or clinical observations. For these reasons, the ALJ s rejection of 14 15 16 Dr. Lemberg s opinion was not supported by substantial evidence in the record as a whole. See Hoffman, 785 F.2d at 1425. 17 18 II. 19 20 This Matter Should Be Remanded for Further Administrative Proceedings The Court may remand this case either for additional evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court 21 22 23 reverses an ALJ s decision, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Benecke v. Barnhart, 379 F.3d 587, 595 (9th 24 25 26 2 Ordinarily, an unsuccessful work attempt will not show a claimant is able to do substantial gainful activity, if after work for a period of six months or less, the claimant s impairment forces her or him to stop working or reduce the amount of work he or she is doing. 20 C.F.R. §§ 404.1574(c)(1), 416.974(c)(1). Additionally, there must be a significant break (at least 30 days) in the continuity of a claimant s prior work before the Commissioner will consider a claimant s work activity an unsuccessful work attempt. ORDER - 9 1 Cir. 2004) (citations omitted). Thus, it is the unusual case in which it is clear from the record 2 that the claimant is unable to perform gainful employment in the national economy, that 3 remand for an immediate award of benefits is appropriate. Id. 4 Benefits may be awarded where the record has been fully developed and further 5 administrative proceedings would serve no useful purpose. Smolen, 80 F.3d at 1292; Holohan 6 7 8 9 10 11 12 v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 13 Here, further administrative proceedings are necessary for the Commissioner to reassess the 14 15 medical opinion of Dr. Lemberg. 16 CONCLUSION 17 18 19 20 Based on the foregoing discussion, the Court hereby finds the ALJ improperly concluded plaintiff was not disabled. Accordingly, defendant s decision is REVERSED and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative 21 22 23 proceedings in accordance with the findings contained herein. DATED this 9th day of July, 2014. 24 A 25 26 Karen L. Strombom United States Magistrate Judge ORDER - 10

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