Gilmore v. Commissioner of Social Security, No. 1:2018cv03087 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, ECF No. 14, is GRANTED, in part, and the case REMANDED for additional proceedings consistent with this order; denying ECF No. 15 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Gilmore v. Commissioner of Social Security Doc. 17 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Apr 18, 2019 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 JIM G., No. 1:18-CV-03087-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 14, 15. Attorney D. James Tree represents Jim G. (Plaintiff); Special 19 Assistant United States Attorney Erin Frances Highland represents the 20 Commissioner of Social Security (Defendant). The parties consented to proceed 21 before a magistrate judge. ECF No. 8. After reviewing the administrative record 22 and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion 23 for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; 24 and REMANDS the matter to the Commissioner for additional proceedings 25 pursuant to 42 U.S.C. §§ 405(g), 1383(c). 26 JURISDICTION 27 Plaintiff filed an application for Supplemental Security Income (SSI) on 28 March 31, 2014, Tr. 102, alleging disability since September 5, 2009, Tr. 202, due ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 to an irregular heartbeat, depression, severe lower back pain, chronic migraines, 2 knee pain, and hepatitis A. Tr. 275. The applications were denied initially and 3 upon reconsideration. Tr. 135-42, 146-51. Administrative Law Judge (ALJ) 4 Keith Allred held a hearing on January 10, 2017 and heard testimony from Plaintiff 5 and vocational expert Steven Cardinal. Tr. 45-75. The ALJ issued an unfavorable 6 decision on March 24, 2017. Tr. 17-37. The Appeals Council denied review on 7 March 29, 2018. Tr. 1-5. The ALJ’s March 14, 2017 decision became the final 8 decision of the Commissioner, which is appealable to the district court pursuant to 9 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial review on May 10 24, 2018. ECF Nos. 1, 4. STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 49 years old at the date of application. Tr. 202. He completed 16 the twelfth grade in 1984. Tr. 276. His reported work history includes gutter 17 hanger, general laborer, press brake operator, and roofer. Id. When applying for 18 benefits Plaintiff reported that he stopped working on September 5, 2009 because 19 of his conditions. Tr. 275. At his hearing, he stated that he stopped working to 20 return to Missouri to care for his ill father, but that “I was having problems mainly 21 at work. I started, I was spitting blood up and some other stuff and I think I was 22 stretched.” Tr. 54. 23 24 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 27 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 28 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is ORDER GRANTING PLAINTIFF’S MOTION - 2 1 not supported by substantial evidence or if it is based on legal error. Tackett v. 2 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 3 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 4 another way, substantial evidence is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion. Richardson v. Perales, 402 6 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 7 interpretation, the court may not substitute its judgment for that of the ALJ. 8 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 9 findings, or if conflicting evidence supports a finding of either disability or non- 10 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 11 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 12 evidence will be set aside if the proper legal standards were not applied in 13 weighing the evidence and making the decision. Brawner v. Secretary of Health 14 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 18 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to 20 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 21 claimant establishes that physical or mental impairments prevent him from 22 engaging in his previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 23 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 25 other work, and (2) the claimant can perform specific jobs which exist in the 26 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 27 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 28 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). ORDER GRANTING PLAINTIFF’S MOTION - 3 1 ADMINISTRATIVE DECISION 2 On March 24, 2017, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act from March 31, 2014 through the 4 date of the decision.1 5 6 7 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 31, 2014, the date of application. Tr. 20. At step two, the ALJ determined that Plaintiff had the following severe 8 impairments: “recurrent arrhythmias, sprains and strains, disorder of urinary tract, 9 cervical and lumbar radiculopathy, affective disorder, migraine headaches, and 10 11 substance abuse disorders.” Tr. 21. At step three, the ALJ found that Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 24. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: The claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday and stand and/or walk for 6 hours in an 8-hour workday with normal rest breaks; occasionally climb ramps and stairs, balance, stoop, bend, squat, kneel, and crouch; never crawl or climb ladders, ropes, or scaffolds; can never use the left upper extremity for overhead reaching, but frequently for reaching at waist level in other directions; and can have no exposure to vibrations, fumes, or hazards. He is able to perform the basic mental demands of competitive, unskilled work, including the ability to understand, carry out, and remember simple instructions; respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. He requires work that involves only occasional interaction with the general public, and not more than frequent interaction with a supervisor and coworkers. 1 The ALJ addressed Plaintiff’s prior 2013 application and declined to reopen the October 28, 2013 denial. Tr. 17. ORDER GRANTING PLAINTIFF’S MOTION - 4 1 Tr. 27-28. The ALJ found that Plaintiff had no past relevant work. Tr. 35. At step five, the ALJ determined that, considering Plaintiff’s age, education, 2 3 work experience and residual functional capacity, and based on the testimony of 4 the vocational expert, there were other jobs that exist in significant numbers in the 5 national economy Plaintiff could perform, including the jobs of electrical 6 accessories assembler, small parts assembler, and mail clerk. Tr. 36. The ALJ 7 concluded Plaintiff was not under a disability within the meaning of the Social 8 Security Act from March 31, 2014, through the date of the ALJ’s decision. Tr. 36- 9 37. ISSUES 10 The question presented is whether substantial evidence supports the ALJ’s 11 12 decision denying benefits and, if so, whether that decision is based on proper legal 13 standards. Plaintiff contends the ALJ erred by (1) failing to address Plaintiff’s 14 personality disorder and bilateral knee impairment at step two, (2) failing to 15 properly weigh the medical opinions, and (3) failing to properly weigh Plaintiff’s 16 symptom statements. DISCUSSION2 17 18 19 20 1. Step Two Plaintiff challenges the ALJ’s step two determination arguing that she failed to find Plaintiff’s bilateral knee impairments and personality disorder were 21 22 2 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION - 5 1 2 medically determinable. ECF No. 14 at 4-6. At step two of the sequential process, the ALJ must determine whether a 3 claimant suffers from a “severe” impairment. 20 C.F.R. § 416.920(c). To show a 4 severe impairment, the claimant must first establish the existence of a medically 5 determinable impairment by providing medical evidence consisting of signs, 6 symptoms, and laboratory findings; the claimant’s own statement of symptoms, a 7 diagnosis, or a medical opinion is not sufficient to establish the existence of an 8 impairment. 20 C.F.R. § 416.921. “[O]nce a claimant has shown that he suffers 9 from a medically determinable impairment, he next has the burden of proving that 10 these impairments and their symptoms affect his ability to perform basic work 11 activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). If the 12 claimant fulfills this burden, the ALJ must find the impairment “severe.” Id. 13 The step-two analysis is “a de minimis screening device used to dispose of 14 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 15 impairment is “not severe” if it does not “significantly limit” the ability to conduct 16 “basic work activities.” 20 C.F.R. § 416.922(a). Basic work activities are 17 “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.922(b). “An 18 impairment or combination of impairments can be found not severe only if the 19 evidence establishes a slight abnormality that has no more than a minimal effect on 20 an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 21 1996) (internal quotation marks omitted). 22 Plaintiff asserts that the ALJ erred by failing to find his impairments 23 medically determinable. ECF No. 16 at 2-4. Defendant argues that the ALJ found 24 the impairments to be medically determinable, but not severe. ECF No. 15 at 2-3. 25 Turning to the ALJ’s decision, it is difficult to ascertain whether he found 26 the bilateral knee impairment medically determinable. First, the ALJ set forth his 27 finding of the severe impairments: “recurrent arrhythmias, sprains and strains, 28 disorder of urinary tract, cervical and lumbar radiculopathy, affective disorder, ORDER GRANTING PLAINTIFF’S MOTION - 6 1 migraine headaches, and substance abuse disorder.” Tr. 20. He then stated: “I 2 have considered every medically determinable impairment of which I am aware in 3 reaching my assessment of the claimant’s residual functional capacity, whether I 4 find it to be severe or non-severe.” Id. He then addressed the period prior to the 5 filing date, stating “There are essentially no musculoskeletal or neurological 6 abnormalities noted during this period.” Tr. 22. He specifically addressed 7 Plaintiff’s knees six times: (1) “Knee x-rays taken during this earlier period were 8 also negative for any significant abnormalities. (Ex 5F/11);” (2) “Bilateral knee 9 and right elbow x-rays were negative, . . . (Ex 26F/5-8);” (3) “In June, the claimant 10 also presented with knee complaints, but he was still assessed to have intact 11 strength and sensation. Ex 27F/35);” (4) “the claimant underwent an examination 12 in April 2016, which did demonstrate some range of motion issues, but nothing of 13 an extreme extent. (Ex 23F/103-104). . . . tenderness to palpation was noted along 14 with a misalignment of the ACL joint. (23F/114);” (5) “in August, the claimant 15 was ambulatory. (Ex 24F/10);” and (6) “the claimant was again assessed to have 16 normal strength and sensation with a pain level only at 1 out of 10. (Ex 27F/16).” 17 Tr. 22. As a conclusion, the ALJ addressed all the musculoskeletal impairments by 18 stating “As with the cardiovascular condition, such a record is supportive of 19 severity, but it is not indicative of extreme limitations alleged.” Tr. 22. Earlier, 20 the ALJ determined that Plaintiff’s alleged cardiovascular condition as “generally 21 indicative of an impairment that would have a limited effect upon the claimant; 22 however, . . . it is not as limiting as alleged.” Tr. 21. 23 The ALJ’s discussion of Plaintiff’s various musculoskeletal impairments is 24 difficult to review. He addressed all the musculoskeletal impairments at once, Tr. 25 22, found “sprains and strains” and “cervical and lumbar radiculopathy” as severe, 26 Tr. 20, and made a general statement that he “considered every medically 27 determinable impairment,” Tr. 20. First, the ALJ’s general finding of “sprains and 28 strains” is unreviewable. This impairment is not specific enough for the Court to ORDER GRANTING PLAINTIFF’S MOTION - 7 1 ascertain what part of the body suffered “sprains and strains” to correlate to any 2 specific limitation in the residual functional capacity determination. A “sprain and 3 strain” in a lower extremity joint would result in different limitations than a “sprain 4 and strain” in an upper extremity joint. Second, every time Plaintiff’s alleged 5 bilateral knee impairment was addressed it was accompanied with generally 6 negative findings. Tr. 22. Therefore, the ALJ’s assertion that he considered all 7 medically determinable impairments, Tr. 20, is not sufficient for the Court to 8 ascertain if the bilateral knee impairment was found as medically determinable. 9 Third, the ALJ seems to address Plaintiff’s credibility and whether or not the 10 impairment was work preclusive: “such a record is supportive of severity, but it is 11 not indicative of the extreme limitations alleged.” Tr. 22. This is the incorrect 12 standard at step two, which requires the ALJ to determine whether the alleged 13 impairments are medically determinable and severe. Webb, 433 F.3d at 687 (The 14 step-two analysis is “a de minimis screening device.”). Likewise, the ALJ generally addressed Plaintiff’s “mental conditions” as a 15 16 single impairment and stated: “taken as a whole such a record is supportive of 17 severity, but it is inconsistent with allegations of mental conditions that would 18 essentially preclude the claimant from work.” Tr. 24. Again, the ALJ is applying 19 the incorrect standard at step two. Webb, 433 F.3d at 687 (The step-two analysis is 20 “a de minimis screening device.”). The ALJ erred by failing to clearly identify the medically determinable 21 22 impairments at step two. Brown-Hunter v. Colvin, 806 F2.3d 487, 492 (9th Cir. 23 2015) (“we still demand that the agency set forth the reasoning behind its decisions 24 in a way that allows for meaningful review”). The case is remanded for the ALJ to 25 clearly identify (1) those impairments he finds medically determinable and (2) of 26 the medically determinable impairments, those that he finds severe. 27 2. 28 Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical ORDER GRANTING PLAINTIFF’S MOTION - 8 1 opinions expressed by Jeremiah Crank, M.D., Ronald Dougherty, Ph.D., Thomas 2 Genthe, Ph.D., Janis Lewis, Ph.D., Philip Barnard, Ph.D., Aaron Burdge, Ph.D., 3 Luci Carstens, Ph.D., Christmas Covell, Ph.D., and John Robinson, Ph.D. ECF 4 No. 14 at 6-18. 5 In weighing medical source opinions, the ALJ should distinguish between 6 three different types of physicians: (1) treating physicians, who actually treat the 7 claimant; (2) examining physicians, who examine but do not treat the claimant; 8 and, (3) nonexamining physicians who neither treat nor examine the claimant. 9 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 10 weight to the opinion of a treating physician than to the opinion of an examining 11 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 12 should give more weight to the opinion of an examining physician than to the 13 opinion of a nonexamining physician. Id. 14 When a treating physician’s opinion is not contradicted by another 15 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 16 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 17 physician’s opinion is contradicted by another physician, the ALJ is only required 18 to provide “specific and legitimate reasons.” Murray v. Heckler, 722 F.2d 499, 19 502 (9th Cir. 1983). Likewise, when an examining physician’s opinion is not 20 contradicted by another physician, the ALJ may reject the opinion only for “clear 21 and convincing” reasons, and when an examining physician’s opinion is 22 contradicted by another physician, the ALJ is only required to provide “specific 23 and legitimate reasons” to reject the opinion. Lester, 81 F.3d at 830-31. 24 The specific and legitimate standard can be met by the ALJ setting out a 25 detailed and thorough summary of the facts and conflicting clinical evidence, 26 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 27 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer his 28 conclusions, he “must set forth his interpretations and explain why they, rather ORDER GRANTING PLAINTIFF’S MOTION - 9 1 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 2 1988). 3 A. Jeremiah Crank, M.D. 4 In June of 2013, Dr. Crank completed a Physical Functional Evaluation form 5 for the Department of Social and Health Services (DSHS). Tr. 391-95. He 6 diagnosed Plaintiff with lower back pain from back and bilateral knee impairments 7 and headaches. Tr. 392. He opined that plaintiff was “Severely limited” defined 8 as “Unable to meet the demands of sedentary work.” Tr. 393. He estimated that 9 Plaintiff’s current limitation would persist for twelve months with available 10 treatment. Id. He additionally found that the current impairments were primarily 11 the result of alcohol or drug use within the past sixty days and when asked if the 12 current level of impairment would be expected to persist following 60 days of 13 sobriety, he checked both “Yes,” and “No.” Id. 14 On March 30, 2016, Dr. Crank completed a second Physical Functional 15 Evaluation form for DSHS. Tr. 754-58. He listed Plaintiff’s diagnosis as 16 cervical/lumbar radiculopathy/degenerative disc disease and possible herniated 17 disc. Tr. 755. He opined that Plaintiff was “Severely limited,” which is defined as 18 “Unable to meet the demands of sedentary work.” Tr. 756. Dr. Crank stated that 19 Plaintiff’s impairments were not the result of alcohol or drug use in the past sixty 20 days. Id. 21 The ALJ gave the opinions little weight because (1) they were inconsistent 22 with the record as a whole, (2) they were inconsistent with the doctor’s own 23 findings, (3) Dr. Crank did not review the opinion of W. Jack Lovern, (4) Dr. 24 Crank provided no explanation for the inconsistencies between his opinions and his 25 treatment notes, and (5) Dr. Crank failed to provide an explanation as to why his 26 opinions were inconsistent with that of Dr. Anna Espiritu. Tr. 34. The parties 27 agree that Dr. Crank was a treating physician. ECF Nos. 14 at 7; 15 at 5. 28 However, they disagree as to whether the ALJ’s reasons meet the lesser standard of ORDER GRANTING PLAINTIFF’S MOTION - 10 1 2 specific and legitimate. The ALJ’s first reason for rejecting the opinions, that they were inconsistent 3 with the record as whole, fails to meet the specific and legitimate standard. 4 Inconsistency with the majority of objective evidence is a specific and legitimate 5 reason for rejecting a physician’s opinion. Batson, 359 F.3d at 1195. Defendant 6 accurately points out that the ALJ provided citations to the record. ECF No. 15 at 7 5-6. However, he provided a citation to over three hundred pages of the record 8 without any discussion. Tr. 34. The conclusion that the opinion was inconsistent 9 with the record followed by a citation to the majority of the medical evidence in 10 the record and no additional discussion is not specific and legitimate. 11 The ALJ’s second reason for rejecting the opinions, that they were 12 inconsistent with doctor’s own findings, is not specific and legitimate. An ALJ 13 may cite internal inconsistencies in evaluating a physician’s report when rejecting 14 an opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, the 15 ALJ found the opinions to be inconsistent with treatment notes showing Plaintiff 16 was receiving no pain from his atrial fibrillation. Tr. 34. On June 20, 2013 and 17 March 30, 2013, Dr. Crank wrote in his treatment notes that the atrial fibrillation 18 was asymptomatic. Tr. 397, 759-60. However, Dr. Crank’s opinion was based on 19 the impairments of lower back pain, bilateral knee pain, and severe headaches. Tr. 20 392, 755. Therefore, the symptoms of Plaintiff’s atrial fibrillation are immaterial 21 to the opinions. 22 The ALJ’s third reason for rejecting the opinions, that Dr. Crank did not 23 review the opinion of W. Jack Lovern, M.D., is not specific and legitimate. On 24 September 9, 2013, Dr. Lovern from Yakima Urology Associates, PLLC 25 completed a physical evaluation that showed no abnormalities. Tr. 426-27. First, 26 Dr. Lovern’s opinion postdates Dr. Crank’s June 2013 opinion. Therefore, Dr. 27 Crank could not have reviewed the opinion prior to writing the June 2013 opinion. 28 Second, Dr. Lovern was performing a urological consultation. Tr. 426. While the ORDER GRANTING PLAINTIFF’S MOTION - 11 1 musculoskeletal evaluation was normal in Dr. Lovern’s September 9, 2013 2 evaluation, Dr. Crank completed his own range of motion testing as part of the 3 March 30, 2016 opinion, which showed a limited range of motion in Plaintiff’s 4 back, neck, hips, and knees. Tr. 757. Dr. Crank’s failure to discuss Dr. Lovern’s 5 evaluation three years later when addressing the current relevant period is 6 immaterial. 7 The ALJ’s fourth reason for rejecting the opinions, that Dr. Crank provided 8 no explanation for the inconsistencies between his opinion and his treatment notes, 9 is not specific and legitimate. An ALJ may cite internal inconsistencies in 10 evaluating a physician’s report when rejecting an opinion. Bayliss, 427 F.3d at 11 1216. However, the ALJ failed to state how Dr. Crank’s opinions were 12 inconsistent with his treatment notes. Tr. 34. Therefore, Dr. Crank’s lack of 13 explanation is not a specific and legitimate reason to reject his opinions. 14 The ALJ’s fifth reason for rejecting the opinions, that Dr. Crank failed to 15 provide an explanation as to why his opinions were inconsistent with that of Dr. 16 Anna Espiritu, is not specific and legitimate. Dr. Espiritu completed a Physical 17 Functional Evaluation form for DSHS on October 24, 2012. Tr. 329-31. She 18 opined that Plaintiff’s physical impairments were mild to moderate and limited 19 Plaintiff to medium work. Tr. 330-31. However, Dr. Crank’s failure to discuss the 20 2012 opinion has little bearing on the reliability of his 2016 opinion. The ALJ 21 determined that the prior application was denied as of October 28, 2013 and 22 refused to reopen the application. Tr. 17. Therefore, the medical evidence prior to 23 the current application pertains to an already adjudicated period and does not 24 pertain to the current period at issue. This is not a specific and legitimate reason. 25 Upon remand, the ALJ will readdress Dr. Crank’s opinion. 26 B. 27 On March 5, 2015, Dr. Dougherty completed a Psychological Evaluation for 28 Ronald Dougherty, Ph.D. Social Security. Tr. 641-48. He diagnosed Plaintiff with alcohol dependence, ORDER GRANTING PLAINTIFF’S MOTION - 12 1 methamphetamine dependence, cannabis abuse, polysubstance dependence, major 2 depressive disorder, adjustment disorder with anxiety, and antisocial personality 3 traits. Tr. 647. Dr. Dougherty found that Plaintiff’s social skills appeared to be 4 good, he was able to do detailed and complex tasks, accept instructions from 5 supervisors, interact with coworkers, and interact with the public. Tr. 648. He also 6 opined that Plaintiff “may have some difficulty maintaining regular attendance in 7 the workplace or in completing a normal workday/workweek without interruptions 8 from his depressive disorder, though his continued use of substances and medical 9 problems are likely to be the principal impediment to this.” Id. He also stated that 10 Plaintiff “may have some difficulty dealing with the stress encountered in the 11 workplace due to his depressive symptoms and distrust of others.” Id. 12 The ALJ gave the opinion great weight except for the attendance portion of 13 the opinion. Tr. 32. The ALJ found that Dr. Dougherty’s opinion regarding 14 attendance was not supported by the record, stating “[t]here is no consistent 15 indication within the record that the claimant had significant mental problems 16 making it to treatment,” and that Plaintiff was now sober, “which would suggest 17 that attendance would not be an issue.” Id. First, the ALJ’s finding that the ability 18 to attend treatment is analogous to the ability to attend to full-time work has been 19 deemed unsupported by the Ninth Circuit. See Garrison v. Colvin, 759 F.3d 995, 20 1016 (9th Cir. 2014) (recognizing that a claimant has more flexibility in scheduling 21 activities and can receive help with activities where this flexibility and help would 22 not necessarily be available in a full-time job). 23 Second, the ALJ’s conclusion that the limitation has been cured by 24 Plaintiff’s reported sobriety, this is an incorrect application of S.S.R. 13-2p. The 25 S.S.R. requires the ALJ to first complete the five-step sequential evaluation 26 process with all limitations, including those that result from substance abuse, and if 27 the claimant is disabled, then complete a new five-step sequential evaluation 28 removing limitations that stem from substance abuse. S.S.R. 13-2p. Here, the ALJ ORDER GRANTING PLAINTIFF’S MOTION - 13 1 disregarded the attendance because he determined it was caused by substance 2 abuse. Tr. 32. This is not a valid reason to reject Dr. Dougherty’s opinion, but 3 addresses the materiality of Plaintiff’s substance abuse and should be addressed in 4 accord with S.S.R. 13-2p. 5 C. Thomas Genthe, Ph.D. 6 On April 8, 2014, Dr. Genthe completed a Psychological/Psychiatric 7 Evaluation form for DSHS. Tr. 585. He diagnosed Plaintiff with major depressive 8 disorder, methamphetamine use disorder, and alcohol use disorder. Tr. 587. He 9 opined that Plaintiff had marked limitations in the ability to perform activities 10 within a schedule, maintain regular attendance, and be punctual within customary 11 tolerances without special supervision and to communicate and perform effectively 12 in a work setting. Id. Additionally, he opined that Plaintiff had a moderate 13 limitation in four basic work abilities. Id. The ALJ assigned little weight to the 14 opinion because the marked limitations were inconsistent with the record as a 15 whole and inconsistent with intact mental examination findings and the GAF score 16 in Dr. Genthe’s evaluation. Tr. 33. 17 The ALJ’s first reason for rejecting the opinion, that it was inconsistent with 18 the record as a whole, is not specific and legitimate. The ALJ made a general 19 statement that the opinion was inconsistent with the evidence and then cited to 20 fourteen exhibits. Tr. 33. Citing to such a large amount of evidence with no 21 discussion as to what specific evidence undermines the opinion is not legally 22 sufficient. 23 The ALJ’s second reason for rejecting the opinion, that it was inconsistent 24 with the mental examination findings and the GAF score in Dr. Genthe’s 25 evaluation, is not specific and legitimate. When discussing the mental examination 26 findings in Dr. Genthe’s evaluation, the ALJ failed to state how the evaluation was 27 inconsistent with the opinion. Tr. 33. Dr. Genthe assigned Plaintiff a GAF score 28 of 50. Tr. 587. A GAF score between 41 and 50 demonstrates “serious symptoms ORDER GRANTING PLAINTIFF’S MOTION - 14 1 (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any 2 serious impairment in social, occupational, or school functioning (e.g., no friends, 3 unable to keep a job).” DSM-IV-TR at 34. The ALJ failed to discuss how Dr. 4 Genthe’s opinion was inconsistent with a GAF score of 50. Therefore, this reason 5 fails to meet the specific and legitimate standard. The ALJ will address Dr. 6 Genthe’s opinion on remand. 7 D. Remaining Opinions 8 Plaintiff also challenged the ALJ’s treatment of the opinions provided by 9 Janis Lewis, Ph.D., Philip Barnard, Ph.D., Aaron Burdge, Ph.D., Luci Carstens, 10 Ph.D., Christmas Covell, Ph.D., and John Robinson, Ph.D. ECF No. 14 at 12-18. 11 Considering the case is remanded for the ALJ to make a new step two 12 determination and address the opinions of Dr. Crank, Dr. Dougherty, and Dr. 13 Genthe, the ALJ will also readdress the remaining opinions upon remand. 14 4. 15 16 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were unreliable. ECF No. 14 at 18-21. 17 The evaluation of a claimant’s symptom statements and their resulting 18 limitations relies, in part, on the assessment of the medical evidence. See 20 19 C.F.R. § 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being remanded 20 for the ALJ to readdress the medical source opinions in the file, a new assessment 21 of Plaintiff’s subjective symptom statements will be necessary. 22 23 24 REMEDY Plaintiff urges the Court to apply the credit-as-true rule and remand this case for an immediate award of benefits. ECF No. 14 at 18. 25 The decision whether to remand for further proceedings or reverse and 26 award benefits is within the discretion of the district court. McAllister v. Sullivan, 27 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 28 record has been fully developed and further administrative proceedings would ORDER GRANTING PLAINTIFF’S MOTION - 15 1 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 2 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 3 the improperly discredited evidence was credited as true, the ALJ would be 4 required to find the claimant disabled on remand, we remand for an award of 5 benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even when the 6 three prongs have been satisfied, the Court will not remand for immediate payment 7 of benefits if “the record as a whole creates serious doubt that a claimant is, in fact, 8 disabled.” Garrison, 759 F.3d at 1021. Here, the first and third prong of the credit-as-true rule are not satisfied 9 10 because the opinions of Dr. Crank and Dr. Genthe address Plaintiff’s substance 11 abuse as the potential cause of Plaintiff’s symptoms. Therefore, even if the 12 opinions were credited as true, the ALJ would not be required to award benefits. 13 The ALJ would instead be required to proceed through the five-step sequential 14 evaluation process a second time to properly address the limitations resulting from 15 Plaintiff’s substance abuse in accord with S.S.R. 13-2p. Therefore, the case is 16 remanded for additional proceedings consistent with this order. CONCLUSION 17 18 Accordingly, IT IS ORDERED: 19 1. 20 Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 2. 21 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 22 GRANTED, in part, and the case REMANDED for additional proceedings 23 consistent with this order. 3. 24 25 // 26 // 27 // 28 // Application for attorney fees may be filed by separate motion. ORDER GRANTING PLAINTIFF’S MOTION - 16 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 3 and the file shall be CLOSED. 4 DATED April 18, 2019. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 17

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