Olvera v. Kijakazi, No. 1:2020cv03234 - Document 18 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; The decision of the Commissioner is REVERSED and REMANDED; Judgment entered for Plaintiff. File Closed. Signed by Chief Judge Stanley A Bastian. (MRJ, Case Administrator)
Download PDF
<![CDATA[
Olvera v. Kijakazi Doc. 18 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3371 Page 1 of 16 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Dec 15, 2021 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 AUGUSTINE O., 1 8 Plaintiff, 9 v. No. 1:20-CV-03234-SAB ORDER GRANTING PLAINTIFF’S 10 COMMISSIONER OF SOCIAL MOTION FOR SUMMARY JUDGMENT; 11 SECURITY, 2 DENYING DEFENDANT’S MOTION 12 FOR SUMMARY JUDGMENT Defendant. 13 14 Before the Court are the parties’ cross-motions for summary judgment. ECF 15 Nos. 14, 16. The motions were heard without oral argument. Plaintiff is 16 represented by D. James Tree; Defendant is represented by Jeffrey E. Staples and 17 Timothy M. Durkin. 18 Plaintiff brings this action seeking judicial review of the Commissioner of 19 Social Security’s final decision denying his application for Disability Insurance 20 Benefits (DIB) and Supplemental Security Income (SSI) under Title XVI of the 21 Social Security Act, 42 U.S.C. §§ 1382. After reviewing the administrative record 22 and briefs filed by the parties, the Court is now fully informed. For the reasons set 23 24 1 Pursuant to the recommendation of the Committee on Court Administration and 25 Case Management of the Judicial Conference of the United States, Plaintiff’s name 26 is partially redacted. 27 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 28 2021. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~1 Dockets.Justia.com Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3372 Page 2 of 16 1 forth below, the Court grants Plaintiff’s Motion for Summary Judgment, ECF No. 2 14, and denies Defendant’s Motion for Summary Judgment, ECF No. 16 3 I. 4 Jurisdiction On January 4, 2018, Plaintiff filed an application for concurrent disability 5 insurance and supplemental security income. He alleged disability beginning April 6 22, 2017. 7 Plaintiff’s application was denied initially and on reconsideration. On March 8 8, 2019, Plaintiff requested a hearing before an Administrative Law Judge 9 (“ALJ”). On May 20, 2020, Plaintiff appeared with counsel, Robert Tree, and 10 testified at a telephone hearing before ALJ Richard Hlaudy. Stacey Lambert, 11 vocational expert also participated. The ALJ issued a decision on June 22, 2020, 12 finding that Plaintiff was not disabled. 13 Plaintiff requested review by the Appeals Council; the Appeals Council 14 denied the request on October 15, 2020. The Appeals Council’s denial of review 15 makes the ALJ’s decision the “final decision” of the Commissioner of Social 16 Security, which this Court is permitted to review. 42 U.S.C. § 405(g), 17 1383(c)(1)(3). 18 Plaintiff filed a timely appeal with the United States District Court for the 19 Eastern District of Washington on December 14, 2020. ECF No. 1. The matter is 20 before this Court pursuant to 42 U.S.C. § 405(g). 21 22 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 23 substantial gainful activity by reason of any medically determinable physical or 24 mental impairment which can be expected to result in death or which has lasted or 25 can be expected to last for a continuous period of not less than twelve months.” 42 26 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 27 under a disability only if their impairments are of such severity that the claimant is 28 not only unable to do their previous work, but cannot, considering claimant’s age, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~2 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3373 Page 3 of 16 1 education, and work experiences, engage in any other substantial gainful work that 2 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 3 Commissioner has established a five-step sequential evaluation process to 4 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 5 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 6 Step One: Is the claimant engaged in substantial gainful activities? 20 7 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 8 done for pay and requires compensation above the statutory minimum. Keyes v. 9 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 10 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 11 the claimant is not, the ALJ proceeds to step two. 12 Step Two: Does the claimant have a medically-severe impairment or 13 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 14 severe impairment is one that lasted or must be expected to last for at least 12 15 months and must be proven through objective medical evidence. Id. §§ 404.1509, 16 416.909. If the claimant does not have a severe impairment or combination of 17 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 18 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 19 step. 20 Step Three: Does the claimant’s impairment meet or equal one of the listed 21 impairments acknowledged by the Commissioner to be so severe as to preclude 22 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 23 the impairment meets or equals one of the listed impairments, the claimant is 24 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 25 impairment is not one conclusively presumed to be disabling, the evaluation 26 proceeds to the fourth step. 27 Before considering to the fourth step, the ALJ must first determine the 28 claimant’s residual functional capacity. An individual’s residual functional ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~3 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3374 Page 4 of 16 1 capacity is their ability to do physical and mental work activities on a sustained 2 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 3 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 4 fifth steps of the analysis. 5 Step Four: Does the impairment prevent the claimant from performing work 6 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 7 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 8 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 9 this work, the evaluation proceeds to the fifth and final step. 10 Step Five: Is the claimant able to perform other work in the national 11 economy in view of their age, education, and work experience? 20 C.F.R. §§ 12 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 13 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 14 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 15 establishes that a physical or mental impairment prevents him from engaging in her 16 previous occupation. Id. At step five, the burden shifts to the Commissioner to 17 show that the claimant can perform other substantial gainful activity. Id. 18 19 III. Standard of Review The Commissioner’s determination will be set aside only when the ALJ’s 20 findings are based on legal error or are not supported by substantial evidence in the 21 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 22 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 23 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 24 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 25 evidence is “such relevant evidence as a reasonable mind might accept as adequate 26 to support a conclusion.” Richardson, 402 U.S. at 401. 27 A decision supported by substantial evidence will be set aside if the proper 28 legal standards were not applied in weighing the evidence and making the decision. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~4 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3375 Page 5 of 16 1 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 2 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 3 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 4 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 5 the evidence is susceptible to more than one rational interpretation, one of which 6 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 7 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 8 weighing both the evidence that supports and the evidence that detracts from the 9 Commissioner’s conclusion, and may not affirm simply by isolating a specific 10 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 11 2017) (quotation omitted). “If the evidence can support either outcome, the court 12 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 13 For claims filed on or after March 27, 2017, 3 like the present claim, new 14 regulations apply regarding the evaluation of medical evidence. Revisions to Rules 15 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). 16 The new regulations eliminate any semblance of a hierarchy of medical opinions 17 and state that the agency does not defer to any medical opinions. 20 C.F.R. 18 §§ 404.1520c(a), 416.920c. Specifically, the rules eliminate the agency’s “treating 19 source rule,” which gave special deference to certain opinions from treating 20 sources. 82 Fed. Reg. at 5853. In articulating the ALJ’s consideration of medical 21 opinions for persuasiveness, the ALJ considers the following factors: (1) 22 Supportability and (2) Consistency; (3) Relationship with the claimant, including 23 (i) length of treatment relationship; (ii) frequency of examinations; (iii) purpose of 24 the treatment relationship; (iv) extend of the treatment relationship; (v) 25 26 3 For claims filed prior to March 27, 2017, an ALJ was to give more weight to “those 27 physicians with the most significant clinical relationship with the plaintiff.” 28 Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~5 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3376 Page 6 of 16 1 examination relationship; (4) Specialization; and (5) Other factors, including 2 whether the medical source has familiarity with the other evidence or an 3 understanding of SSA’s disability program’s policies and evidentiary requirements. 4 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The most important factors in evaluating 5 the persuasiveness of medical opinions are supportability and consistency. 20 6 C.F.R. §§ 404.1520c(a), 416.920c(a). 7 Supportability and consistency are further explained in the regulations: 8 (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. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (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. 20 C.F.R. §§ 404.1520c(c); 416.920c(c). When a medical source provides multiple medical opinions, the ALJ must articulate how it considered these opinions in a single analysis applying the abovelisted factors. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). If equally persuasive medical opinions about the same issue are both equally well-supported and consistent with the record, but are not exactly the same, the ALJ must articulate how it considered the other most persuasive factors in making its decision. 20 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3). IV. Statement of Facts The facts have been presented in the administrative record, the ALJ’s decision, and the briefs to this Court. Only the most relevant facts are summarized herein. Plaintiff worked as a car salesman for 20 years. Starting in 2014, his health 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~6 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3377 Page 7 of 16 1 declined. He suffered a stroke and developed pancreatitis, diabetes, GERD, 2 hypertension, obstructive sleep apnea, and headaches. He also was diagnosed with 3 posttraumatic stress disorder (PTSD), depression, anxiety and schizophrenia. In 4 2017, he was in the hospital for three weeks and he was unable to return to work. 5 Since that time, Plaintiff has had difficulty managing his health problems and 6 frequently ends up in the hospital. Within a year’s time, he had fifteen 7 hospitalizations or visits to the emergency room, many times because he was 8 experiencing abdominal pain, nausea, and vomiting. He has been admitted a 9 number of times for multiple-day stays due to his pancreatitis. As a result, 10 Washington state has provided Plaintiff with a caregiver to assist him up to 34 11 hours a week. 12 Plaintiff has severe anxiety around people. He reported that he experienced 13 abandonment, physical abuse, and sexual abuse as a child and as a result, he is 14 fearful and paranoid. He reports that he experiences auditory and visual 15 hallucinations. He testified that he is not reliable because he feels good one day 16 and is bedridden, exhausted, and socially isolated the next day. 17 18 V. The ALJ’s Findings The ALJ issued an opinion affirming denial of benefits. AR 15-29. The ALJ 19 found that Plaintiff met the insured status requirements through December 31, 20 2022. At step one, the ALJ found that Plaintiff has not engaged in substantial 21 gainful activity since April 22, 2017, the alleged onset date. AR 17. 22 At step two, the ALJ identified the following severe impairments: 23 pancreatitis, status-post pancreatic tumor; diabetes; gastroesophageal reflux disease 24 (GERD); hypertension; obstructive sleep apnea; headaches, anxiety disorder; 25 posttraumatic stress disorder (PTSD); depression; schizophrenia; and alcohol use 26 disorder. AR 18. 27 At step three, the ALJ found that Plaintiff did not have an impairment or 28 combination of impairments that meets or medically equals the severity of one of ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~7 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3378 Page 8 of 16 1 the listed impairments. AR 18. Ultimately, the ALJ concluded that Plaintiff has a 2 residual function capacity (“RFC”) to perform: 3 light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can occasionally climb ramps and stairs, but never climb 4 ladders, ropes, or scaffolds. The claimant can frequently stoop, kneel, 5 crouch, and crawl. 6 AR at 20. At step four, the ALJ found Plaintiff had past relevant work as a car 7 8 dealership administrative clerk, but this job exceeded Plaintiff’s current residual 9 functional capacity and therefore, Plaintiff was unable to perform past relevant 10 work. AR 24. At step five, the ALJ found that Plaintiff was not disabled and capable of 11 12 performing work that exists in significant numbers in the national economy, 13 including router, marker, and assembler, small products. AR 28. 14 VI. Issues for Review 15 (1) Whether the ALJ properly rejecting Plaintiff’s symptom testimony? 16 (2) Whether the ALJ properly evaluated the medical evidence? 17 18 VII. Discussion Initially, the Court notes that although the ALJ concluded that while 19 Plaintiff’s state-provided caregiver was helpful, it was not medically necessary 20 based on the ALJ’s review of the medical evidence, this finding is not supported by 21 the record and is, at best, speculative. On the contrary, Plaintiff’s reliance on a 22 caregiver for basic self-care is consistent with the opinions of the evaluating 23 psychologists that Plaintiff would have difficulty successfully performing work 24 activities over the course of a workday. Additionally, the ALJ’s findings regarding 25 Plaintiff’s credibility and its consideration of certain psychological evaluations was 26 in error and not supported by the record. 27 (1) ALJ’s Credibility Finding 28 The ALJ concluded that while Plaintiff’s medically determinable ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~8 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3379 Page 9 of 16 1 impairments could reasonably be expected to cause the alleged symptoms, his 2 statement’s concerning the intensity, persistence and limiting effects of the 3 symptoms were not entirely consistent with the medical evidence and other 4 evidence in the record. AR21. 5 In determining whether a claimant’s testimony regarding subjective pain or 6 symptoms is credible, the ALJ engages in a two-step analysis. Garrison v. Colvin 7 759 F.3d 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the 8 claimant has presented objective medical evidence of an underlying impairment 9 which could reasonably be expected to produce the pain or other symptoms 10 alleged.” Id. (citation and quotation omitted). If the claimant satisfies the first step 11 of the analysis, and there is no evidence of malingering, the ALJ can reject the 12 claimant’s testimony about the severity of their symptoms “only by offering 13 specific, clear and convincing reasons for doing so.” Id. (citation and quotation 14 omitted). “This is not an easy requirement to meet: The clear and convincing 15 standard is the most demanding required in Social Security cases.” Id. (citation and 16 quotation omitted). 17 The ALJ found that Plaintiff’s allegations of incapacitating dysfunction due 18 to pancreatitis and other gastrointestinal symptoms are not fully consistent with the 19 overall evidence, noting benign workup findings and physical examinations that 20 have been unremarkable. AR21. It found that his complaints of neuropathy were 21 not supported by his normal gait and intact motor function. 22 The ALJ also found that his allegations of disabling mental symptoms were 23 inconsistent with his ability to previously work with his conditions. He noted that 24 despite longstanding issues with anxiety, depression, PTSD, and psychosis, his 25 conditions did not prevent him from working 17 years as a car salesman until April 26 2017, when physical reasons caused him to stop working. The ALJ also noted that 27 his mental issues have been responsive to medication and the record indicates that 28 he denied feeling down, depressed, or hopeless to his treatment providers. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~9 Case 1:20-cv-03234-SAB 1 ECF No. 18 filed 12/15/21 PageID.3380 Page 10 of 16 The ALJ found that Plaintiff “exaggerated and made inconsistent statements 2 about his symptoms” based on his profile on a Personality Assessment Inventory 3 (PAI) administered by Dr. Genthe in March 2020. 4 The ALJ also relied on a few minor inconsistencies in statements Plaintiff 5 made to his treatment providers to discredit all of his statements regarding his 6 symptoms, including inconsistent statements about his participation in special 7 education services; when his auditory hallucinations began; whether he 8 experienced hallucinations; and inconsistent statements in March 2020 about his 9 alcohol use. The ALJ concluded that these inconsistencies undermined the 10 reliability of his self-reported symptoms and limitations. 11 The ALJ’s reasons for rejecting Plaintiff’s credibility are not supported by 12 the record and therefore fail to meet the clear and convincing standard. As the 13 Ninth Circuit has explained, when discussing mental health issues, it is error to 14 reject a claimant’s testimony merely because symptoms wax and wane in the 15 course of treatment. Garrison, 759 F.3d at 1017. “Cycles of improvement and 16 debilitating symptoms are a common occurrence, and in such circumstances, it is 17 error for an ALJ to pick out a few isolated instances of improvement over a period 18 of months or years and to treat them as a basis for concluding a claimant is capable 19 of working.” Id. “Reports of ‘improvement’ in the context of mental health issues 20 must be interpreted with an understanding of a patient’s overall well-being and the 21 nature of [his] symptoms.” Id. “They must also be interpreted with an awareness 22 that improved functioning while being treated and while limiting environmental 23 stressors does not always mean that a claimant can function effectively in a 24 workplace.” Id. “Caution in making such an inference is especially appropriate 25 when no doctor or other medical expert has opined, on the basis of a full review of 26 all relevant records, that a mental health patient is capable of working or is 27 prepared to return to work.” 28 Here, while some of his treatment providers noted that Plaintiff sometimes ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~10 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3381 Page 11 of 16 1 presented without depressive symptoms, most of these treatment providers were 2 from the pain clinic, not Plaintiff’s mental health treatment providers. See Diedrich 3 v. Berryhill, 874 F.3d 634, 641 (9th Cir. 2017) (noting that it was unsurprising that 4 the orthopedic doctor did not mention the claimant’s specific mental health 5 symptoms and the fact that she did not “say little about the extent to which [the 6 claimant] may in fact have been suffering from such symptoms.”). Moreover, the 7 record is replete with instances where Defendant is depressed, despondent and at 8 one point having suicidal thoughts. Notably, in April 2018, Plaintiff had a crisis 9 assessment with Central Washington Comprehensive Mental Health. At the 10 minimum, the fact that Plaintiff sometimes presented without depression 11 symptoms is consistent with his testimony that he had days where his depression is 12 less severe and days where it is debilitating. 13 The ALJ erred in discrediting Plaintiff’s symptom testimony to the extent 14 that he did so by relying on Dr. Genthe’s report. At best, the tests administered by 15 Dr. Genthe were equivocal, and therefore cannot provide a basis for discrediting 16 Plaintiff’s symptom testimony. Notably, Dr. Bowes noted there was no evidence of 17 malingering in her assessment of Plaintiff. Dr Genthe’s equivocal conclusions are 18 not clear and convincing reasons to reject Plaintiff’s testimony. 19 Finally, the minor inconsistencies relied on by the ALJ are not clear and 20 convincing reasons to reject Plaintiff’s testimony. There are over 2500 pages of 21 medical records. Within those records, the ALJ found four inconsistencies, while 22 apparently ignoring other times where his testimony was corroborated, especially 23 with respect to his alcohol use. For instance, when he was examined for his broken 24 finger, he stated he did not drink any alcohol and none was detected in his urine. 25 (2) Evaluating Medical Evaluation 26 The ALJ found Dr. Kester’s, a state agency psychological consultant, 27 opinion persuasive because it was generally consistent with the longitudinal 28 evidence, which included his ability to work with his longstanding conditions in ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~11 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3382 Page 12 of 16 1 the past, his response to treatment, and his benign mental status findings during his 2 appointments. 3 On the other hand, the ALJ found the opinions of Dr. Bowes, Dr. Metoyer, 4 and Dr. Genthe not persuasive because their opinions were inconsistent with his 5 work history as his longstanding mental conditions did not prevent him from 6 working as a car salesman for 17 years, were inconsistent with treatment notes 7 from other providers that indicate his symptoms have been responsive to 8 medication and he has regularly denied any depressive symptoms during 9 appointments, were inconsistent with the observations of treating providers who 10 have typically observed Plaintiff being in no acute distress and no observations of 11 hallucinations or delusions, and because they relied, in part, on Plaintiff’s self12 reported symptoms/limitations. 13 The ALJ’s conclusions regarding Dr. Bowes, Dr. Metoyer, and Dr. Genthe 14 are not supported by the record. Rather, the record establishes that the opinions of 15 these evaluators are well-supported by the mental status findings, clinical 16 interview, personal observations, and psychometric testing and are consistent with 17 the record; therefore, the ALJ erred in finding them not persuasive. 18 Notably, the ALJ failed to take into consideration evidence in the 19 record that Plaintiff’s mental health status declined considerable after his 20 physical conditions prevented him from working. Moreover, the ALJ failed 21 to take into consideration that Plaintiff’s symptoms, like typical mental 22 health symptoms, wax and wane in the course of treatment. Also, the ALJ 23 cannot reject mental health evaluations simply because the evaluators were 24 relying, in part, in Plaintiff’s self-report. The Ninth Circuit has recognized 25 that consideration of a person’s self-report is necessary when evaluating 26 mental issues. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). 27 a. Dr. Genthe 28 Dr. Genthe noted in the Personality Assessment Inventory (PAI) that there ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~12 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3383 Page 13 of 16 1 may have been some idiosyncratic responses to particular items that could affect 2 test results. He noted: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [w]ith respect to negative impression management, there are indications suggesting that the client tended to portray himself in an especially negative or pathological manner. This pattern is often associated with a deliberate distortion of the clinical picture, and the critical items should be reviewed to evaluate the possibility of malingering. Alternative explanations include the possibility that the test results reflect a cry for help, or an extreme or exaggerated negative evaluation of oneself and one’s life. AR3239. Dr. Genthe did not, however, find that Plaintiff was malingering. Dr. Genthe also noted that Plaintiff had moderate difficulties following the conversation, and his abstract thought was not within normal limits. AR3238. His memory was not within normal limits, given that he was able to recall only 1 of 4 objects after a five-minute delay. AR3237. He also noted that Plaintiff’s reality testing was somewhat impaired as evidence by his delusional/paranoid thinking, history of depression and anxiety, and his history of hallucinations. AR3237. Dr. Genthe noted that Plaintiff’s affect appeared anxious and depressed. AR3237. Dr. Genthe rated the overall severity of Plaintiff’s mental impairments as marked, as well as marked severity in his ability to communicate and perform effectively in a work setting, maintain appropriate behavior in a work setting, and to complete a normal work day and work week without interruptions from psychologically based symptoms. AR3236. Dr. Genthe’s conclusions are supported by his administration of the PAI and his observations and interactions with Plaintiff and his conclusions are consistent with the record that demonstrated bouts when Plaintiff experienced hallucination. b. Dr. Bowes Dr. Bowes conducted a psychological assessment in April 2018. AR1083. Dr. Bowes performed a Trails A and B and noted the Trails A result supported a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~13 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3384 Page 14 of 16 1 marked deficit in cognitive functioning. AR1086. Dr. Bowes did not find any 2 evidence of malingering. AR1085. Dr. Bowes found marked effect on Plaintiff’s 3 ability to perform the following basic work activities: (1) understand, remember, 4 and persist in tasks by following detailed instruction; (2) learn new tasks; (3) 5 perform routine tasks without special supervision; (4) adapt to changes in a routine 6 work setting; (5) ask simple questions or request assistance; (6) communicate and 7 perform effectively in a work setting; (7) maintain appropriate behavior in a work 8 setting; and (8) set realistic goals and plan independently. AR1086. Dr. Bowes 9 found severe effect on Plaintiff’s ability to perform the following basic work 10 activities: (1) perform activities within a schedule, maintain regular attendance, 11 and be punctual within customary tolerances without special supervision; and (2) 12 complete a normal work day and work week without interruptions from 13 psychologically based symptoms. AR1086-87. 14 Dr. Bowes’ conclusions are supported by the administration of the Trails A 15 and B, and observations and interactions with Plaintiff. 16 c. Dr. Metoyer 17 In performing a psychological examination, Dr. Metoyer noted that 18 Plaintiff’s affect was congruent with his stated mood, which was sad, lonely, 19 depressed, irritable and frustrated. AR1496. Dr. Metoyer noted that Plaintiff was 20 only able to recall one object out of three. AR1496. Dr. Metoyer concluded that 21 due to his anxiety, PTSD, social isolation and mood symptoms, Plaintiff’s ability 22 to maintain regular attendance in the workplace is moderately impaired, as well as 23 his ability to complete a normal work day or work week without interruption from 24 his anxiety, PTSD, and mood symptoms. AR1498. Similarly, his ability to deal 25 with the usual stress encountered in the workplace is markedly impaired if it 26 involves persistent activity, complex task, task pressure or interacting with other 27 individuals. AR1498. Dr. Metoyer noted that he reviewed records including the 28 Department of Social and Health Services psychological/psychiatric evaluation ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~14 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 PageID.3385 Page 15 of 16 1 record dated April 8, 2018. AR1495. 2 Dr. Metoyer’s conclusions are supported by his review of the record, as well 3 as his interaction and observations of Plaintiff, and his conclusions are consistent 4 with the record. 5 (3) Award for Immediate Benefits 6 Once the opinions of Dr. Genthe, Dr. Bowes, and Dr. Metoyer are properly 7 considered, it becomes clear that Plaintiff is unable to work on a regular and 8 continuing basis. Additionally, Plaintiff’s frequent hospitalizations and his need for 9 a caregiver to help him manage day-to-day tasks establish that he is unable to work 10 full-time. As such, the ALJ erred in finding that he was not disabled. Because a 11 remand of this case would only delay an award, the Court reverses the ALJ’s 12 decision and remands for an immediate calculation and award of benefits. 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~15 Case 1:20-cv-03234-SAB ECF No. 18 filed 12/15/21 1 Accordingly, IT IS HEREBY ORDERED: 2 1. PageID.3386 Page 16 of 16 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 3 GRANTED. 4 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 5 DENIED. 6 3. The decision of the Commissioner is REVERSED and REMANDED 7 for an immediate calculation and award of benefits. 8 4. Judgment shall be entered in favor of Plaintiff and against Defendant. 9 5. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the 10 District Court Executive is directed to substitute Kilolo Kijakazi for Andrew Saul. 11 IT IS SO ORDERED. The District Court Executive is hereby directed to 12 file this Order, provide copies to counsel, and close the file. 13 DATED this 15th day of December 2021. 14 15 16 17 18 19 20 Stanley A. Bastian Chief United States District Judge 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~16
]]>
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.
