Beck v. Commissioner of Social Security, No. 1:2018cv03156 - Document 20 (E.D. Wash. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S 13 MOTION FOR SUMMARY JUDGMENT INTER ALIA; denying Defendant's 17 Motion for Summary Judgment. The Commissioner's decision is REVERSED and the matter is REMANDED for payment of Title XVI SSI benefits to the Plaintiff. FILE CLOSED. Signed by Senior Judge Lonny R. Suko. (AN, Courtroom Deputy)
Download PDF
<![CDATA[
Beck v. Commissioner of Social Security Doc. 20 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Jun 26, 2019 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 Plaintiff, 8 9 10 11 12 13 14 15 vs. COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________ ) 18 19 20 21 22 23 24 25 26 No. 1:18-CV-03156-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 13) and the Defendant's Motion For Summary Judgment (ECF No. 17). 16 17 ) ) ) ) ) ) ) ) ) ) ) ) JORDAN N. B., JURISDICTION Jordan N. B., Plaintiff, applied for Title XVI Supplemental Security Income benefits (SSI) on April 1, 2014. reconsideration. The application was denied initially and on Plaintiff timely requested a hearing which was held on April 25, 2017, before Administrative Law Judge (ALJ) Robert F. Campbell. Plaintiff testified at the hearing, as did Vocational Expert (VE) Erin Hunt. On June 1, 2017, the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council denied a request for review of the ALJ’s decision, making that decision the Commissioner’s final decision subject to judicial review. The Commissioner’s final decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com STATEMENT OF FACTS 1 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of her application for SSI benefits, Plaintiff was 22 years old, and at the time 5 of the administrative hearing, she was 25 years old. She has a high school education, 6 but no past relevant work experience. 7 STANDARD OF REVIEW 8 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 12 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 13 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 14 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 15 1988). 16 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 17 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 18 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 19 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 20 On review, the court considers the record as a whole, not just the evidence supporting 21 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 22 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 23 "It means such relevant evidence as a reasonable mind might accept as It is the role of the trier of fact, not this court to resolve conflicts in evidence. 24 Richardson, 402 U.S. at 400. If evidence supports more than one rational 25 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 26 F.2d 577, 579 (9th Cir. 1984). 27 A decision supported by substantial evidence will still be set aside if the proper 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 legal standards were not applied in weighing the evidence and making the decision. 2 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 3 1987). 4 ISSUES 5 6 Plaintiff argues the ALJ erred in: 1) not providing specific, clear and 7 convincing reasons for discrediting Plaintiff’s testimony regarding her symptoms and 8 limitations; 2) failing to provide adequate reasons for rejecting the opinions of 9 examining medical sources; 3) failing to find the Plaintiff’s severe mental health 10 impairments meet or equal a listed impairment; and 4) failing to provide adequate 11 reasons for rejecting the lay witness statement of Plaintiff’s mother. 12 DISCUSSION 13 14 SEQUENTIAL EVALUATION PROCESS 15 The Social Security Act defines "disability" as the "inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or can 18 be expected to last for a continuous period of not less than twelve months." 42 19 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 20 to be under a disability only if her impairments are of such severity that the claimant 21 is not only unable to do her previous work but cannot, considering her age, education 22 and work experiences, engage in any other substantial gainful work which exists in 23 the national economy. Id. 24 The Commissioner has established a five-step sequential evaluation process for 25 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 26 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if she is engaged 27 in substantial gainful activities. If she is, benefits are denied. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 20 C.F.R. § 1 416.920(a)(4)(I). If she is not, the decision-maker proceeds to step two, which 2 determines whether the claimant has a medically severe impairment or combination 3 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe 4 impairment or combination of impairments, the disability claim is denied. If the 5 impairment is severe, the evaluation proceeds to the third step, which compares the 6 claimant's impairment with a number of listed impairments acknowledged by the 7 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 8 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 9 equals one of the listed impairments, the claimant is conclusively presumed to be 10 disabled. If the impairment is not one conclusively presumed to be disabling, the 11 evaluation proceeds to the fourth step which determines whether the impairment 12 prevents the claimant from performing work she has performed in the past. If the 13 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. § 14 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 15 in the process determines whether she is able to perform other work in the national 16 economy in view of her age, education and work experience. 17 416.920(a)(4)(v). 20 C.F.R. § 18 The initial burden of proof rests upon the claimant to establish a prima facie 19 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 20 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 21 mental impairment prevents her from engaging in her previous occupation. The 22 burden then shifts to the Commissioner to show (1) that the claimant can perform 23 other substantial gainful activity and (2) that a "significant number of jobs exist in the 24 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 25 1498 (9th Cir. 1984). 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 ALJ'S FINDINGS 2 The ALJ found the following: 1) Plaintiff has “severe” medical impairments, 3 those being: depression, social phobia and migraines; 2) Plaintiff’s impairments do 4 not meet or equal any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 5 1; 3) Plaintiff has the residual functional capacity (RFC) to perform a full range of 6 work at all exertional levels, but with the following non-exertional limitations: she 7 can do simple routine work with occasional contact with supervisors and coworkers, 8 but no teamwork or collaboration, and no public contact; and 4) Plaintiff’s RFC 9 allows her to perform jobs existing in significant numbers in the national economy, 10 including machine packer, assembler, and inspector/hand packer. Accordingly, the 11 ALJ concluded the Plaintiff is not disabled. 12 13 MEDICAL OPINIONS 14 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 15 of a licensed treating or examining physician or psychologist is given special weight 16 because of his/her familiarity with the claimant and his/her condition. If the treating 17 or examining physician's or psychologist’s opinion is not contradicted, it can be 18 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 19 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 20 ALJ may reject the opinion if specific, legitimate reasons that are supported by 21 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 22 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 23 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 24 1216 (9th Cir. 2005). . The opinion of a non-examining medical advisor/expert need 25 not be discounted and may serve as substantial evidence when it is supported by other 26 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 27 53 F.3d 1035, 1041 (9th Cir. 1995). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 Nurse practitioners, physicians’ assistants, and therapists (physical and mental 2 health) are not “acceptable medical sources” for the purpose of establishing if a 3 claimant has a medically determinable impairment. 20 C.F.R. § 416.913(a). Their 4 opinions are, however, relevant to show the severity of an impairment and how it 5 affects a claimant’s ability to work. 20 C.F.R. § 416.913(d). In order to discount the 6 opinion of a non-acceptable medical source, the ALJ must offer germane reasons for 7 doing so. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). 8 The ALJ gave “great weight” to the opinions of the non-examining State 9 agency consultants. (AR at p. 22). Although they opined that Plaintiff is limited to 10 occasional public/coworker interaction, the ALJ determined that in light of Plaintiff’s 11 anxiety and depression, she should have no public contact, be limited to occasional 12 contact with supervisors, and should avoid work involving teamwork or 13 collaboration. (Id.). 14 Kordell N. Kennemer, Psy. D., reviewed the record in conjunction with the 15 initial denial of Plaintiff’s claim. He offered his opinion regarding Plaintiff’s mental 16 RFC on October 23, 2014, after reviewing records from May 2014 through October 17 2014. It is not apparent whether any of that evidence included a formal psychological 18 or psychiatric examination. (AR at pp. 97-98; 101-103). 19 Jan L. Lewis, Ph.D., reviewed the record in conjunction with the 20 reconsideration denial of Plaintiff’s claim. 21 Plaintiff’s mental RFC on April 8, 2015, after reviewing additional evidence from 22 December 2014 through March 2015. (AR at pp. 107-109; 113-15). This additional 23 evidence included records from Central Washington Comprehensive Mental Health 24 (CWCMH) dated March 3-4, 2015, and an opinion from Carol Jurs, M.A., of 25 CWCMH dated January 27, 2015. Dr. Lewis determined this opinion, from a non- 26 acceptable medical source, was not supported by other medical evidence in the file. 27 (AR at p. 113). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 She offered her opinion regarding 1 While Dr. Lewis appears to have reviewed the December 3, 2014 diagnoses by 2 Daniel McCabe, M.D., and some of the results of the mental status exam he 3 conducted as part of his psychiatric evaluation of the Plaintiff (AR at p. 110), she did 4 not refer specifically to Dr. McCabe nor address the limitations opined by him at that 5 time. Dr. Lewis did not weigh Dr. McCabe’s opinion like she weighed the opinion 6 of Carol Jurs. 7 Based on his clinical interview and mental status examination of the Plaintiff, 8 Dr. McCabe found the following mental health symptoms affected Plaintiff’s ability 9 to work: social anxiety, daily, severe; symptoms of depression including anhedonia, 10 poor concentration, self-persecutory thoughts, daily, moderate; chronic suicidal 11 thoughts, daily, moderate; and self-injurious behaviors, daily, moderate. (AR at p. 12 357). 13 that she had “a large unhealing wound on her face which is apparently also from 14 chronic picking.” (Id.). Dr. McCabe diagnosed the Plaintiff with social phobia and 15 major depressive disorder, recurrent and moderate. (AR at p. 358). He opined that 16 Plaintiff had a “[s]evere to moderate impairment in social and occupational 17 functioning” with a “marked” limitation in her ability to perform activities within a 18 schedule, maintain regular attendance, and be punctual within customary tolerances 19 without special supervision; a “marked” limitation in her ability to adapt to changes 20 in a routine work setting; a “severe” limitation in her abilities to ask simple questions 21 or request assistance and communicate and perform effectively in a work setting; a 22 “marked” limitation in her ability to maintain appropriate behavior in a work setting; 23 and a “marked” limitation her ability to complete a normal work day and work week 24 without interruptions from psychologically based symptoms. (Id.). He noted that Plaintiff engages in chronic picking at her breasts or legs and 25 Dr. McCabe’s prognosis was that Plaintiff would be impaired for 18 months 26 with available treatment and that vocational training or services would minimize or 27 eliminate barriers to employment. (AR at p. 358). He opined that Plaintiff would 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 1 benefit from psychiatric evaluation and treatment and although she had some trial 2 runs with antidepressants, he thought she had likely not engaged in full psychiatric 3 treatment because of her social anxiety. (Id.). He further opined that Plaintiff would 4 benefit from individual counseling with cognitive behavioral therapy to work on 5 techniques to deal with her social anxiety. (Id.). 6 In January 2015, Plaintiff began a course of treatment and counseling with 7 CWCMH that would last for the better part of two years. Her initial assessment on 8 January 26-27, 2015 at CWCMH was by Carol Jurs, M.A., a licensed mental health 9 counselor (LMHC). Jurs opined that a vocational assessment was not appropriate at 10 this time as the Plaintiff was “not prepared to be in the workforce,” noting Plaintiff 11 could not “handle stress at this point” as evidenced by her having a job at a fast food 12 restaurant which lasted a mere two days. (AR at p. 374). Jurs diagnosed the Plaintiff 13 with Dysthymic Disorder and Major Depressive Disorder. (AR at p. 373). 14 While Plaintiff missed a couple of appointments at CWCMH after her initial 15 assessment, she started therapy on March 19, 2015 and was seen on a regular basis 16 there until October 2016. 17 Dr. McCabe conducted a second psychiatric evaluation of the Plaintiff on 18 October 18, 2016. Plaintiff told him that things remained largely unchanged for her 19 and that she had multiple unhealed wounds on her chest. Dr. McCabe observed that 20 there were “noticeable wounds” on the Plaintiff’s face. (AR at p. 382). Plaintiff 21 indicated her sessions at CWCMH were “helpful” and that they were “working on 22 exposing her to more social situations.” According to Dr. McCabe’s evaluation: 23 24 25 26 27 28 [Plaintiff’s] proud to report that she can now sit outside on her porch for up to 10 to 20 minutes a day, and even converses with the neighbors. She’d like to keep working on improving her social interaction; perhaps getting a volunteer position at a shelter and walking dogs, and hopes to eventually have a job. She feels that the biggest impediment to this is the lack of motivation, feeling tired all the time, and being anxious about being out in public. (AR at p. 383). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 Dr. McCabe’s diagnosis was major depressive disorder, recurrent and 2 moderate; social anxiety disorder; and Cluster A and Cluster C personality traits.1 3 (AR at p. 383). He indicated that mental health symptoms affecting Plaintiff’s ability 4 to work included: social anxiety, daily and severe; symptoms of depression including 5 anhedonia, poor concentration, self persecutory thoughts, daily and moderate; self 6 injurious behaviors, daily and moderate. (AR at p. 383). 7 This time around, Dr. McCabe opined that Plaintiff had a “severe” limitation 8 in her ability to perform activities within a schedule, maintain regular attendance, and 9 be punctual within customary tolerances without special supervision; a “severe” 10 limitation in her ability to adapt to changes in a routine work setting; a “marked” 11 limitation in her abilities to ask simple questions or request assistance and 12 communicate and perform effectively in a work setting; a “severe” limitation in her 13 ability to maintain appropriate behavior in a work setting; and a “severe” limitation 14 her ability to complete a normal work day and work week without interruptions from 15 psychologically based symptoms. 16 Plaintiff had received at CWCMH in the interim, Dr. McCabe believed Plaintiff’s 17 limitations had increased in four areas and diminished in two of these areas, although 18 only slightly from “severe” to “marked.” Dr. McCabe estimated Plaintiff would be 19 would be impaired for 18 months with available treatment, but this time opined that 20 vocational training or services would not minimize or eliminate barriers to 21 employment. (Id.). According to the doctor: (AR at p. 384). Notwithstanding the counseling 22 23 1 Cluster A personality disorders are characterized by odd, eccentric 24 25 26 27 28 thinking or behavior. Cluster C personality disorders are characterized by anxious, fearful thinking or behavior. https://www.mayoclinic.org/ diseases-conditions/personality-disorders/symptoms-causes/syc-20354463. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 This woman is receiving psychological counseling that sounds behaviorally oriented to help expose her to situations in which she has to cope with her social anxiety. I believe this is an appropriate treatment. She is also receiving medication treatment for her symptoms, which I believe is appropriate as well. This woman with her social anxiety is going to move at her own pace. She feels that she’s making progress in terms of being able to sit outside on her front porch for 10 minutes a day, does have the goal of wanting to continue to increase social exposure, and she’s going to need to move at her own speed with that. She is not at the point where vocational training would be helpful as she would not be able to tolerate that level of social interaction. So I believe ongoing behavioral treatment is necessary. 1 2 3 4 5 6 7 8 9 (Id.). 10 Unfortunately, Plaintiff did not continue with behavioral therapy at CWCMH 11 after November 2016, as noted by the ALJ in his decision. (AR at p. 20). At the 12 April 2017 hearing, Plaintiff testified she had not been attending counseling recently 13 “because of the snow and because of my depression.” (AR at p. 76). She noted the 14 closest counseling available was 10 to 20 miles away from where she lived and 15 indicated she was trying to get in to counseling again. (AR at pp. 76-77). 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ gave little weight to Dr. McCabe’s opinions for the following reasons: They are based primarily on the claimant’s self-report of symptoms and limitations, which are not consistent with the treatment record. For example, she told Dr. McCabe in October 2016 that she had been down for the last few months with depression, with only an occasional good day. [Citation omitted]. However, in November 2016, she reported most of her days were okay, with a few bad days. [Citation omitted]. The claimant indicated to Dr. McCabe she had progressed only to the point she could sit outside for 10 to 20 minutes. However, records reflect that she was able to attend a sewing class, spend time swimming at a park, improve her depression by singing and listening to music, volunteer at a cat rescue operation, and enroll in vocational rehabilitation services. [Citation omitted]. As noted above, mental health records reflect good response to treatment when compliant. [Citation omitted]. (AR at p. 21). Clinical interviews and mental status examinations are objective measures that cannot be discounted as a “self-report.” Buck v. Berrryhill, 869 F.3d 1040, 1049 (9th ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 2 3 4 5 Cir. 2017). According to the Ninth Circuit in Buck: Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient’s self-report, as well as the clinician’s observations of the patient. But such is the nature of psychiatry. . . . Thus, the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness. 6 Dr. McCabe’s partial reliance on Plaintiff’s self-reported symptoms is not a 7 reason to reject the doctor’s opinions, especially in light of the fact that the non- 8 examining psychologist to whose opinion the ALJ gave great weight (Dr. Lewis), did 9 not weigh Dr. McCabe’s opinion and provide any reasons for discounting it. 10 Dr. McCabe was obviously aware of Plaintiff’s treatment with medication and 11 notwithstanding that, offered the opinion that she “was not at the point where 12 vocational training would be helpful as she would not be able to tolerate that level of 13 social interaction.” Around the same time as Plaintiff was evaluated by Dr. McCabe 14 in October 2016, she was seen by psychiatrist Gregory Sawyer, M.D., at CWCMH for 15 “medication management.” 16 depression” and requested an increase in her antidepressant medication. (AR at p. 17 428). Dr. Sawyer stated his “impression of this somewhat child-like patient is that 18 she is not psychologically minded and will probably not benefit from other than 19 medication,” but “[o]n the other hand, chasing her with medication is likely to be at 20 least partly futile.” (AR at p. 431). Dr. Sawyer thought it was possible to alleviate 21 some of her depression, but not all of it “since some of it appears to be almost 22 characterological in nature.” (AR at p. 432). She reported “significantly more difficulty with her 23 The ALJ noted certain some instances from March 2015, January 2016, May 24 2016, and July 2016, when Plaintiff had a good response to medication. (AR at p. 25 20). Indeed, Plaintiff even testified that things are better with medication and while 26 there are still bad days, “it’s a little better.” (AR at p. 75). Nevertheless, this is not 27 a legitimate reason to discount the October 2016 opinions of Drs. McCabe and 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 1 Sawyer who no doubt were well-acquainted with Plaintiff’s medication treatment 2 history. 3 The record shows that while Plaintiff started/attempted certain activities 4 pointed out by the ALJ, she did not sustain or follow through on them. Records from 5 CWCMH indicate “[t]he sewing and crocheting has not been realized since 6 [Plaintiff’s] first involvement.” (AR at p. 481). While Plaintiff in May 2016 told her 7 therapist at CWCMH that she had volunteered a “few times” at a cat shelter, she also 8 stated there was no “set schedule yet” and there is no subsequent reference in the 9 record showing Plaintiff’s continued involvement at the shelter. (AR at p. 453). 10 While there are references in the record to Plaintiff applying for vocational services 11 in the spring/summer of 2016, there is nothing in the record showing that she 12 followed through with this and actually participated in such services. Indeed, Dr. 13 McCabe’s October 2016 assessment that Plaintiff was “not at the point where 14 vocational training would be helpful as she would not be able to tolerate that level of 15 social interaction” clearly suggests she did not participate in vocational services. The 16 record indicates Plaintiff went swimming at a park only one time with her mother and 17 brother. (AR at p. 477). 18 undermine the opinion of Dr. McCabe regarding Plaintiff’s difficulty with social 19 interaction. It is not a legitimate reason to discount that opinion. The limited extent of these activities is not enough to 20 Jessica Webb, a registered nurse practitioner with CWCMH, was responsible 21 for Plaintiff’s medication management during 2015 and part of 2016. (AR at pp. 447- 22 51; 464-68; 485-89; 495-99). In December 2015, she completed a “Mental Source 23 Statement” in which she indicated Plaintiff was “severely limited” in all areas of 24 cognitive and social functioning, and extremely limited in maintaining social 25 functioning, concentration, persistence and pace, such that she would be off-task over 26 30% of the time during a 40 hour work-week and would likely miss four or more days 27 of work per month. (AR at pp. 379-81). The ALJ gave little weight to Webb’s 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 1 opinion, finding it was not supported by the objective medical evidence of the record 2 and that no findings or observations were provided to support the stated limitations. 3 (AR at p. 22). Webb’s opinion is, however, supported by the objective medical 4 evidence of record including Dr. McCabe’s clinical findings and Webb’s own 5 findings and observations as set forth in her CWCMH medication management 6 records. (AR at pp. 447-51; 464-68; 485-89; 495-99). The ALJ did not provide a 7 “germane” reason for discounting Webb’s opinion.2 8 9 TESTIMONY RE SYMPTOMS AND LIMITATIONS 10 Where, as here, the Plaintiff has produced objective medical evidence of an 11 underlying impairment that could reasonably give rise to some degree of the 12 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 13 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Burrell 14 v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 95, 1014 15 (9th Cir. 2014). If an ALJ finds a claimant’s subjective assessment unreliable, “the 16 ALJ must make a credibility determination with findings sufficiently specific to 17 18 2 19 20 Plaintiff acknowledges that Brittany Fallon, a nurse practitioner, opined primarily regarding Plaintiff’s physical limitations, but indicated in August 2015 21 22 23 that Plaintiff would miss work due to mental health reasons. (AR at pp. 378). The ALJ gave Fallon’s opinion little weight because no findings were provided to 24 25 26 27 28 support it. (AR at p. 22). Nonetheless, Fallon’s assessment is consistent with that of Dr. McCabe and ARNP Webb, and her own observations of the Plaintiff (AR at pp. 364-67; 508-16). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 1 permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit [the] 2 claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 3 Among other things, the ALJ may consider: 4 truthfulness; 2) inconsistencies in the claimant's testimony or between her testimony 5 and her conduct; 3) the claimant’s daily living activities; 4) the claimant's work 6 record; and 5) testimony from physicians or third parties concerning the nature, 7 severity, and effect of claimant's condition. Id. 1) the claimant's reputation for 8 Plaintiff’s testimony about her symptoms and limitations is consistent with the 9 opinions of Dr. McCabe and ARNP Webb regarding her symptoms and limitations. 10 Because Plaintiff’s limited activities are not a legitimate reason to discount the 11 opinions of Dr. McCabe and ARNP Webb, they are also not a clear and convincing 12 reason to discount Plaintiff’s testimony. That Plaintiff told Dr. McCabe 13 in October 2016 she had been down for the last few months with depression, with 14 only an occasional good day, while in November 2016, she reported most of her days 15 were okay, with a few bad days, is not manifestly inconsistent such as to constitute 16 a clear and convincing reason for discounting Plaintiff’s testimony. 17 The ALJ found Plaintiff’s treatment had been “sporadic,” noting she underwent 18 a mental health assessment in March 2014, but was discharged for failure to attend 19 further sessions. (AR at pp. 19-20). In December 2014, Plaintiff acknowledged to 20 Dr. McCabe that she had tried counseling, but felt she was not ready for it. (AR at 21 p. 356). Dr. McCabe opined that Plaintiff likely had not engaged in psychiatric 22 treatment fully because of her social anxiety. (AR at p. 358). As noted above, in 23 January 2015, Plaintiff commenced a regular course of treatment with CWCMH that 24 lasted until November 2016. The ALJ pointed out that Plaintiff was discharged from 25 CWCMH in January 2017 after failing to respond to a closing letter (AR at p. 20), but 26 at her hearing, Plaintiff explained that inclement weather, her depression, and her 27 distance from the CWCMH counseling center had created impediments for her, 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14 1 although she was trying to resume counseling there. (AR at pp. 76-77). Overall, it 2 is not clear that Plaintiff’s treatment has been “sporadic,” but to the extent it has, 3 there are valid reasons for it and therefore, it is not a clear and convincing reason for 4 discounting Plaintiff’s testimony. 5 6 REMAND 7 Social security cases are subject to the ordinary remand rule which is that when 8 “the record before the agency does not support the agency action, . . . the agency has 9 not considered all the relevant factors, or . . . the reviewing court simply cannot 10 evaluate the challenged agency action on the basis of the record before it, the proper 11 course, except in rare circumstances, is to remand to the agency for additional 12 investigation or explanation.” Treichler v. Commissioner of Social Security 13 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 14 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 15 In “rare circumstances,” the court may reverse and remand for an immediate 16 award of benefits instead of for additional proceedings. Id., citing 42 U.S.C. §405(g). 17 Three elements must be satisfied in order to justify such a remand. The first element 18 is whether the “ALJ has failed to provide legally sufficient reasons for rejecting 19 evidence, whether claimant testimony or medical opinion.” Id. at 1100, quoting 20 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If the ALJ has so erred, the 21 second element is whether there are “outstanding issues that must be resolved before 22 a determination of disability can be made,” and whether further administrative 23 proceedings would be useful. Id. at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 24 887 (9th Cir. 2004). “Where there is conflicting evidence, and not all essential factual 25 issues have been resolved, a remand for an award of benefits is inappropriate.” Id. 26 Finally, if it is concluded that no outstanding issues remain and further proceedings 27 would not be useful, the court may find the relevant testimony credible as a matter of 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 15 1 law and then determine whether the record, taken as a whole, leaves “not the slightest 2 uncertainty as to the outcome of [the] proceedings.” Id., quoting NLRB v. Wyman- 3 Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Where all three elements are satisfied- 4 ALJ has failed to provide legally sufficient reasons for rejecting evidence, there are 5 no outstanding issues that must be resolved, and there is no question the claimant is 6 disabled- the court has discretion to depart from the ordinary remand rule and remand 7 for an immediate award of benefits. Id. But even when those “rare circumstances” 8 exist, “[t]he decision whether to remand a case for additional evidence or simply to 9 award benefits is in [the court’s] discretion.” 10 Id. at 1102, quoting Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). 11 Here, the ALJ failed to offer legally sufficient reasons for rejecting the 12 opinions of Dr. McCabe and ARNP Webb. The ALJ also provided insufficient 13 reasons for rejecting Plaintiff’s allegations concerning her symptoms and resulting 14 limitations. There are no outstanding issues to resolve and further administrative 15 proceedings would not be useful.3 The VE testified that an individual would be 16 incapable of sustaining competitive work if she was off task 20 percent of the 17 workday and/or missed two or more days of work per week. (AR at pp. 91-92). 18 These limitations are consistent with the limitations opined by Dr. McCabe and 19 20 3 It is not necessary to address Plaintiff’s contention that she suffers from an 21 22 23 impairment which meets or equal a listed impairment. Nor is it necessary to address Plaintiff’s contention that the ALJ did not provide adequate reasons to 24 25 26 27 28 discount statements from Plaintiff’s mother (AR at p. 22), other than to note those statements are consistent with the limitations opined by Dr. McCabe and ARNP Webb, and with the Plaintiff’s testimony regarding her limitations. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 16 1 ARNP Webb. The record taken as a whole leaves no doubt that as of April 1, 2014, 2 the Plaintiff was disabled for continuous period of at least 12 months. 3 The court would normally be reluctant to award SSI benefits to such a young 4 person (age 25 at the time of the 2017 hearing) who has no past relevant work history 5 and has barely attempted any type of work. The record, however, bears out that, at 6 least through June 1, 2017, this Plaintiff was suffering from seriously debilitating 7 social anxiety and depression that precluded her from performing any substantial 8 gainful activity. 9 thereafter with the goal of managing her mental health conditions well enough to 10 The court hopes that Plaintiff resumed treatment in 2017 or allow her to engage in some type of substantial gainful activity. 11 CONCLUSION 12 13 Plaintiff’s Motion For Summary Judgment (ECF No. 13) is GRANTED and 14 Defendant’s Motion For Summary Judgment (ECF No. 17) is DENIED. 15 Commissioner's decision is REVERSED. 16 17 18 The Pursuant to sentence four of 42 U.S.C. §405(g), this matter is REMANDED for payment of Title XVI SSI benefits to the Plaintiff. IT IS SO ORDERED. The District Executive shall enter judgment 19 accordingly, forward copies of the judgment and this order to counsel of record, and 20 close this file. 21 DATED this 26th day of June, 2019. 22 23 24 25 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 17
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
