Brown v. Commissioner of Social Security, No. 4:2018cv05046 - Document 19 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 16 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 17 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)
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Brown v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 25, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 RACHEAL B., No. 4:18-cv-05046-MKD Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 16, 17 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 16, 17. The parties consented to proceed before a magistrate 15 judge. ECF No. 4. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 grants Plaintiff’s Motion, ECF No. 16, and denies Defendant’s Motion, ECF No. 18 17. 19 20 2 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 2 ORDER - 3 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 not disabled. 20 C.F.R. § 416.920(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 2 ORDER - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 ORDER - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 4 5 On January 7, 2014, Plaintiff protectively filed an application for Title XVI 6 supplemental security income benefits, alleging an onset date of January 1, 1993. 7 Tr. 185-94. The application was denied initially, Tr. 95-98, and on 8 reconsideration, Tr. 102-04. Plaintiff appeared at a hearing before an 9 administrative law judge (ALJ) on November 10, 2016. Tr. 32-68. On January 30, 10 2017, the ALJ denied Plaintiff’s claim. Tr. 12-31. 11 At step one, the ALJ found that Plaintiff had engaged in substantial gainful 12 activity from June 1, 2016 through the date of the hearing, but that there had been a 13 continuous 12-month period during which Plaintiff did not engage in substantial 14 gainful activity. Tr. 18. At step two, the ALJ found Plaintiff has the following 15 severe impairments: major depressive disorder, anxiety disorder, autism spectrum 16 disorder, and learning disorder. Id. At step three, the ALJ found Plaintiff did not 17 have an impairment or combination of impairments that meets or medically equals 18 the severity of a listed impairment. Tr. 19. The ALJ then concluded that Plaintiff 19 had the RFC to perform work at all exertional levels with the following limitations: 20 2 [Plaintiff] can perform simple, routine tasks and follow short, simple instructions, can do work that needs little or no judgment, and can perform ORDER - 6 1 simple duties that can be learned on the job in a short period. She requires a work environment with minimal supervisor contact. (Minimal contact does not preclude all contact, rather it means contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges and it does not preclude being in proximity to the supervisor.) [Plaintiff] can work in proximity to co-workers but not in a cooperative or team effort, requires a work environment that is predictable and with few work setting changes, i.e. a few routine and uninvolved tasks according to set procedures, sequence, or pace with little opportunity for diversion or interruption. She can perform goal-oriented work (i.e. given task expectations) but not production rate pace work and requires a work environment without public contact. 2 3 4 5 6 7 Tr. 21. 8 At step four, the ALJ found Plaintiff was unable to perform any past relevant 9 work. Tr. 26. At step five, the ALJ found that, considering Plaintiff’s age, 10 education, work experience, RFC, and testimony from a vocational expert, there 11 were other jobs that existed in significant numbers in the national economy that 12 Plaintiff could perform, such as prep cook, laundry worker, and marking clerk. Tr. 13 26-27. The ALJ concluded Plaintiff was not under a disability, as defined in the 14 Social Security Act, since January 7, 2014, the date the application was filed. Tr. 15 27. 16 On February 2, 2018, the Appeals Council denied review, Tr. 1-6, making 17 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 18 review. See 42 U.S.C. § 1383(c)(3). 19 20 2 ORDER - 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her supplemental security income benefits under Title XVI of the Social Security 4 Act. ECF No. 16. Plaintiff raises the following issues for this Court’s review: 5 1. Whether the ALJ properly weighed Plaintiff’s symptom claims; 6 2. Whether the ALJ properly weighed the medical opinion evidence; 7 3. Whether the ALJ properly determined Plaintiff’s RFC; and 8 4. Whether the ALJ properly identified other work in the national economy 9 consistent with Plaintiff’s RFC at step five. 10 ECF No. 16 at 4. 11 12 13 ANALYSIS A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 14 convincing in discrediting her subjective symptom claims. ECF No. 16 at 12-13. 15 An ALJ engages in a two-step analysis to determine whether to discount a 16 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 17 1119029, at *2. “First, the ALJ must determine whether there is objective medical 18 evidence of an underlying impairment which could reasonably be expected to 19 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation 20 marks omitted). “The claimant is not required to show that her impairment could 2 ORDER - 8 1 reasonably be expected to cause the severity of the symptom she has alleged; she 2 need only show that it could reasonably have caused some degree of the 3 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 4 Second, “[i]f the claimant meets the first test and there is no evidence of 5 malingering, the ALJ can only reject the claimant’s testimony about the severity of 6 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 7 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 8 omitted). General findings are insufficient; rather, the ALJ must identify what 9 symptom claims are being discounted and what evidence undermines these claims. 10 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 11 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 12 explain why it discounted claimant’s symptom claims). “The clear and convincing 13 [evidence] standard is the most demanding required in Social Security cases.” 14 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 15 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 16 Factors to be considered in evaluating the intensity, persistence, and limiting 17 effects of an individual’s symptoms include: 1) daily activities; 2) the location, 18 duration, frequency, and intensity of pain or other symptoms; 3) factors that 19 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 20 side effects of any medication an individual takes or has taken to alleviate pain or 2 ORDER - 9 1 other symptoms; 5) treatment, other than medication, an individual receives or has 2 received for relief of pain or other symptoms; 6) any measures other than treatment 3 an individual uses or has used to relieve pain or other symptoms; and 7) any other 4 factors concerning an individual’s functional limitations and restrictions due to 5 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 6 416.929(c)(1)-(3) (2011). The ALJ is instructed to “consider all of the evidence in 7 an individual’s record,” “to determine how symptoms limit ability to perform 8 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 9 The ALJ found that Plaintiff’s medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 11 statements concerning the intensity, persistence, and limiting effects of her 12 symptoms were not entirely consistent with the evidence. Tr. 22. 13 1. Daily Activities 14 The ALJ found Plaintiff’s daily activities were inconsistent with the level of 15 impairment she alleged. Tr. 22. A claimant’s reported daily activities can form the 16 basis for an adverse credibility determination if they consist of activities that 17 contradict the claimant’s “other testimony” or if those activities are transferable to 18 a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Fair v. 19 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be grounds for an 20 adverse credibility finding “if a claimant is able to spend a substantial part of his 2 ORDER - 10 1 day engaged in pursuits involving the performance of physical functions that are 2 transferable to a work setting.”). “While a claimant need not vegetate in a dark 3 room in order to be eligible for benefits, the ALJ may discredit a claimant’s 4 testimony when the claimant reports participation in everyday activities indicating 5 capacities that are transferable to a work setting” or when activities “contradict 6 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 7 quotation marks and citations omitted). The ALJ found Plaintiff’s ability to work full-time as a cashier was 8 9 inconsistent with her alleged limitations. Tr. 22. Working with an impairment 10 supports a conclusion that the impairment is not disabling. See Drouin v. Sullivan, 11 966 F.2d 1255, 1258 (9th Cir. 1992). The ALJ observed that Plaintiff worked at 12 substantial gainful activity (SGA) levels as a cashier for several months prior to the 13 hearing date. Tr. 22. On this record, the ALJ reasonably concluded that this 14 activity was inconsistent with Plaintiff’s allegation of complete disability.1 Id. 15 16 1 However, the Court notes that Plaintiff’s counsel indicated at the hearing that 17 Plaintiff may not have been able to sustain employment after the hearing date. Tr. 18 66. Because this case is remanded for further proceedings on other grounds, the 19 ALJ is instructed to develop the record on this issue to assess whether Plaintiff’s 20 employment as a cashier was an unsuccessful work attempt. 2 ORDER - 11 The ALJ also found Plaintiff’s academic performance was inconsistent with 1 2 her reported symptoms. Tr. 22. An ALJ may consider good academic 3 performance as an activity that is inconsistent with a claimant’s reported 4 functioning. See Anderson v. Astrue, No. 09-CV-220-JPH, 2010 WL 2854241, at 5 *6 (E.D. Wash. July 19, 2010); Payton v. Comm’r of Soc. Sec., No. CIV S-096 0879-CMK, 2010 WL 3835732, at *10 (E.D. Cal. Sept. 29, 2010); see also Spittle 7 v. Astrue, No. 3:11-CV-00711-AA, 2012 WL 4508003, at *3 (D. Or. Sept. 25, 8 2012). Here, the ALJ observed Plaintiff attended community college during the 9 relevant period and maintained a cumulative 3.3 GPA. Tr. 22; see Tr. 259-60. 10 However, the ALJ disregarded without discussion Plaintiff’s report that she 11 received academic accommodations in college. Tr. 22. Plaintiff testified that she 12 first attempted community college in 2002 without accommodations and did 13 poorly. Tr. 41-42. Plaintiff then testified that she later returned to community 14 college, with accommodations in the form of note taking assistance and video 15 instruction, and that her academic performance improved.2 Id. These 16 accommodations are consistent with Plaintiff’s symptom allegations, including 17 becoming overwhelmed easily, difficulty paying attention, and difficulty keeping 18 19 2 In fact, Plaintiff’s transcript reflects a dramatic improvement in her grades 20 between her enrollment in 2002-04 and her enrollment in 2009-12. Tr. 259-60. 2 ORDER - 12 1 pace. Tr. 47-48. The ALJ must consider all of the relevant evidence in the record 2 and may not point to only those portions of the records that bolster his findings. 3 See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding 4 that an ALJ cannot selectively rely on some entries in plaintiff’s records while 5 ignoring others). In relying on Plaintiff’s record of academic successes without 6 acknowledging or discussing the nature of the accommodations Plaintiff received, 7 the ALJ’s discussion of Plaintiff’s academic record was impermissibly selective. 8 This finding is not supported by substantial evidence. 9 The Commissioner asserts any error the ALJ made is harmless. ECF No. 10 17 at 11-12. The Court “may not reverse an ALJ’s decision on account of an error 11 that is harmless.” Molina, 674 F.3d at 111. An error is harmless “where it is 12 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 13 (quotation and citation omitted). Here, although the ALJ made a finding about 14 Plaintiff’s academic performance as a daily activity that was not supported by 15 substantial evidence, the ALJ also made a separate finding about Plaintiff’s work 16 as a daily activity that is supported by substantial evidence. However, as discussed 17 infra, the ALJ also failed to identify substantial evidence to support the ALJ’s 18 other findings regarding Plaintiff’s symptom testimony. Overall, the ALJ’s 19 evaluation of Plaintiff’s symptom complaints is not supported by substantial 20 2 ORDER - 13 1 evidence. On remand, the ALJ is instructed to reconsider Plaintiff’s symptom 2 testimony. 3 2. Lack of Supporting Medical Evidence 4 The ALJ found Plaintiff’s symptom complaints were not supported by the 5 medical evidence. Tr. 23. An ALJ may not discredit a claimant’s symptom 6 testimony and deny benefits solely because the degree of the symptoms alleged is 7 not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 8 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 9 Fair, 885 F.2d at 601; Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 10 However, the medical evidence is a relevant factor in determining the severity of a 11 claimant’s symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 12 C.F.R. § 416.929(c)(2) (2011). 13 Plaintiff failed to challenge the ALJ’s finding of a lack of supporting 14 medical evidence in her opening brief. ECF No. 16 at 12-13; see Carmickle v. 15 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (determining 16 Court may decline to address on the merits issues not argued with specificity); Kim 17 v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider on appeal 18 issues not “specifically and distinctly argued” in the party’s opening brief). 19 However, the Court conducted an independent review of the ALJ’s decision to 20 determine whether the ALJ’s error in assessing Plaintiff’s daily activities was 2 ORDER - 14 1 harmless to the overall symptom testimony evaluation and concludes this 2 additional reason is not supported by substantial evidence. Here, the ALJ found 3 that Plaintiff’s treatment notes documented appropriate mood and affect and no 4 abnormal psychiatric symptoms. Tr. 23 (citing Tr. 746, 879, 885, 890, 894). 5 However, the ALJ’s opinion fails to make any effort to discuss the longitudinal 6 medical evidence. Tr. 18-26. The ALJ must consider all of the relevant evidence 7 in the record and may not point to only those portions of the records that bolster his 8 findings. See, e.g., Holohan, 246 F.3d at 1207-08 (holding that an ALJ cannot 9 selectively rely on some entries in plaintiff’s records while ignoring others). 10 Identifying a handful of treatment notes in a record of nearly 950 pages fails to rise 11 to the level of substantial evidence to support the ALJ’s finding. Even if Plaintiff 12 failed to specifically challenge this finding, this error compounds the error Plaintiff 13 identified supra and should be reconsidered on remand. 14 3. Symptom Improvement 15 The ALJ found Plaintiff’s symptom allegations were inconsistent with 16 evidence that her psychiatric symptoms improved. Tr. 22-23. The effectiveness of 17 treatment is a relevant factor in determining the severity of a claimant’s symptoms. 18 20 C.F.R. § 416.929(c)(3) (2011); see Warre v. Comm’r of Soc. Sec. Admin., 439 19 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th 20 2 ORDER - 15 1 Cir. 2008) (a favorable response to treatment can undermine a claimant’s 2 complaints of debilitating pain or other severe limitations). 3 Plaintiff failed to challenge the ALJ’s finding of symptom improvement in 4 her opening brief. ECF No. 16 at 12-13; see Carmickle, 533 F.3d at 1161 n.2; 5 Kim, 154 F.3d at 1000. However, the Court conducted an independent review to 6 determine whether the ALJ’s error in assessing daily activities was harmless to the 7 overall symptom testimony evaluation and concludes this additional reason is not 8 supported by substantial evidence. Here, the ALJ observed that Plaintiff’s 9 depression score, as measured by the QIDS-SR16, dropped from a 15 in February 10 2016 to an 11 in October 2016, meeting Plaintiff’s goal. Tr. 22; see Tr. 924. One 11 instance of improvement in Plaintiff’s depression score does not rise to the level of 12 substantial improvement to support the ALJ’s finding. Even if Plaintiff failed to 13 specifically challenge this finding, this error compounds the error Plaintiff 14 identified supra and should be reconsidered on remand. 15 16 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Nora 17 Marks, Ph.D., and Christmas Covell, Ph.D. ECF No. 16 at 8-12. 18 There are three types of physicians: “(1) those who treat the claimant 19 (treating physicians); (2) those who examine but do not treat the claimant 20 (examining physicians); and (3) those who neither examine nor treat the claimant 2 ORDER - 16 1 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 2 Holohan, 246 F.3d at 1201-02 (citations omitted). Generally, a treating 3 physician’s opinion carries more weight than an examining physician’s, and an 4 examining physician’s opinion carries more weight than a reviewing physician’s. 5 Id. at 1202. “In addition, the regulations give more weight to opinions that are 6 explained than to those that are not, and to the opinions of specialists concerning 7 matters relating to their specialty over that of nonspecialists.” Id. (citations 8 omitted). If a treating or examining physician’s opinion is uncontradicted, the ALJ 9 10 may reject it only by offering “clear and convincing reasons that are supported by 11 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 12 “However, the ALJ need not accept the opinion of any physician, including a 13 treating physician, if that opinion is brief, conclusory and inadequately supported 14 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 15 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 17 may only reject it by providing specific and legitimate reasons that are supported 18 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83019 831). 20 2 ORDER - 17 1 1. Dr. Marks 2 Dr. Marks examined3 Plaintiff on December 11, 2013; diagnosed Plaintiff 3 with depression, Asperger’s disorder, and learning disorder; and opined Plaintiff 4 had moderate limitation in her ability to understand, remember, and persist in tasks 5 by following detailed instructions; moderate limitation in her ability to perform 6 activities within a schedule, maintain regular attendance, and be punctual within 7 customary tolerances without special supervision; moderate impairment in her 8 ability to make simple work-related decisions; moderate impairment in her ability 9 to ask simple questions or request assistance; moderate limitation in her ability to 10 maintain appropriate behavior in a work setting; marked limitation in her ability to 11 learn new tasks; marked limitation in her ability to communicate and perform 12 effectively in a work setting; marked limitation in her ability to complete a normal 13 work day and work week without interruptions from psychologically based 14 symptoms; severe limitations in her ability to adapt to changes in a routine work 15 16 3 Plaintiff’s brief characterizes Dr. Marks as a treating source. ECF No. 16 at 9-11. 17 However, the Court finds no evidence in the record to indicate Dr. Marks had any 18 ongoing treatment relationship with Plaintiff. Additionally, Dr. Marks signed both 19 of her reports as the “examining professional.” Tr. 375, 758. Accordingly, the 20 Court finds Dr. Marks is an examining provider. 2 ORDER - 18 1 setting; and severe limitations in her ability to set realistic goals and plan 2 independently. Tr. 372-75. 3 Dr. Marks performed a second examination on October 29, 2015; diagnosed 4 Plaintiff with major depressive disorder, learning disorder NOS, anxiety disorder 5 NOS, and autism spectrum disorder; and opined Plaintiff had moderate limitation 6 in her ability to maintain appropriate behavior in a work setting; marked limitation 7 in her ability to understand, remember, and persist in tasks by following detailed 8 instructions; marked limitation in her ability to learn new tasks; marked limitation 9 in her ability to adapt to changes in a routine work setting; marked limitation in her 10 ability to make simple work-related decisions; severe limitation in her ability to 11 perform activities within a schedule, maintain regular attendance, and be punctual 12 within customary tolerances without special supervision; severe limitation in her 13 ability to adapt to changes in a routine work setting; severe limitation in her ability 14 to be aware of normal hazards and take appropriate precautions; severe limitation 15 in her ability to ask simple questions or request assistance; severe limitation in her 16 ability to communicate and perform effectively in a work setting; severe limitation 17 in her ability to complete a normal work day and work week without interruptions 18 from psychologically based symptoms; and severe limitation in her ability to set 19 realistic goals and plan independently. Tr. 755-58. The ALJ gave these opinions 20 little to no weight. Tr. 24. Because Dr. Marks’ opinions were contradicted by Dr. 2 ORDER - 19 1 Eather, Tr. 80-81, and Dr. Fligstein, Tr. 90-92, the ALJ was required to provide 2 specific and legitimate reasons for rejecting Dr. Marks’ opinions. Bayliss, 427 3 F.3d at 1216. 4 First, the ALJ found Dr. Marks’ opinions were not sufficiently explained. 5 Tr. 24. A medical opinion may be rejected by the ALJ if it is conclusory or 6 inadequately supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. Also, 7 individual medical opinions are preferred over check-box reports. See Crane v. 8 Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Murray v. Heckler, 722 F.2d 499, 501 9 (9th Cir. 1983). An ALJ may permissibly reject check-box reports that do not 10 contain any explanation of the bases for their conclusions. Crane, 76 F.3d at 253. 11 However, if treatment notes are consistent with the opinion, a conclusory opinion, 12 such as a check-the-box form, may not automatically be rejected. See Garrison, 13 759 F.3d at 1014 n.17; see also Trevizo v. Berryhill, 871 F.3d 664, 667 n.4 (9th 14 Cir. 2017) (“[T]here is no authority that a ‘check-the-box’ form is any less reliable 15 than any other type of form”). 16 Here, the ALJ concluded that Dr. Marks “simply checked boxes” identifying 17 limitations and “provides no discussion [of] the basis or support for these 18 suggested limitations.” Tr. 24. However, the ALJ’s conclusion completely 19 disregards the narrative explanation contained throughout Dr. Marks’ two reports. 20 Dr. Marks administered objective testing during both examinations, and each 2 ORDER - 20 1 report contains a description of her test results and their implications for Plaintiff’s 2 functioning. Tr. 373, 756-57. Each report also contains an itemized list of 3 diagnoses and an explanation of the specific impact each diagnosis has on 4 Plaintiff’s functioning. Tr. 373-74, 757. Absent discussion of her narrative report, 5 the ALJ’s conclusion that Dr. Marks’ reports were not sufficiently explained is not 6 supported by substantial evidence. 7 Second, the ALJ found that Dr. Marks’ opinions were inconsistent with the 8 longitudinal medical evidence. Tr. 24. An ALJ may discredit physicians’ opinions 9 that are unsupported by the record as a whole. Batson v. Comm’r of Soc. Sec. 10 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). However, the ALJ must consider all 11 of the relevant evidence in the record and may not point to only those portions of 12 the records that bolster his findings. See, e.g., Holohan, 246 F.3d at 1207-08 13 (holding that an ALJ cannot selectively rely on some entries in plaintiff’s records 14 while ignoring others); see also Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 15 1988) (conclusory reasons do not “achieve the level of specificity” required to 16 justify an ALJ’s rejection of an opinion); Blakes v. Barnhart, 331 F.3d 565, 569 17 (7th Cir. 2003) (“We require the ALJ to build an accurate and logical bridge from 18 the evidence to her conclusions so that we may afford the claimant meaningful 19 review of the SSA’s ultimate findings.”). 20 2 ORDER - 21 1 Here, the ALJ found that Dr. Marks’ opinions were inconsistent with 2 Plaintiff’s normal psychiatric presentations during appointments and evidence that 3 her mental health symptoms improved over time. Tr. 24. The ALJ identified a 4 series of treatment notes in which Plaintiff was observed to have appropriate mood 5 and affect and no abnormal psychiatric symptoms. Tr. 23 (citing Tr. 746, 879, 6 885, 890, 894). To support the conclusion that Plaintiff’s symptoms improved, the 7 ALJ cited evidence that Plaintiff’s depression score, as measured by the QIDS8 SR16, dropped from a 15 in February 2016 to an 11 in October 2016, and one 9 report from Plaintiff’s father that Plaintiff was “extremely happy.” Tr. 22; see Tr. 10 295, 924. This cursory discussion of the medical evidence, identifying one change 11 in depression score, one report from Plaintiff’s father about her mood, and a 12 handful of physical examinations where no psychiatric abnormalities were 13 observed, in a record of nearly 950 pages, does not rise to the level of substantial 14 evidence to support the ALJ’s finding. In light of the significant limitations Dr. 15 Marks opined stemming from Plaintiff’s Asperger’s disorder/autism spectrum 16 disorder and learning disorder, which the ALJ did not address, the ALJ’s 17 conclusion that Dr. Marks’ opinion was not consistent with the medical evidence is 18 not supported by substantial evidence. 19 Third, the ALJ found that Dr. Marks’ opinions were inconsistent with 20 Plaintiff’s activities. However, as discussed supra, the ALJ made findings 2 ORDER - 22 1 regarding Plaintiff’s daily activities that are not supported by substantial evidence. 2 Because the ALJ’s other findings regarding Dr. Marks’ opinions are similarly 3 unsupported by substantial evidence, the Court declines to specifically analyze this 4 reason here. Overall, the ALJ failed to provide specific and legitimate reason, 5 supported by substantial evidence, to discredit Dr. Marks’ opinion. The ALJ 6 applied similarly flawed analysis to reject the opinions of other medical providers 7 in the record. Tr. 24-25. Accordingly, the ALJ is instructed to reconsider the all of 8 the medical opinion evidence on remand.4 9 C. RFC Formulation Plaintiff challenges the ALJ’s RFC formulation for failing to capture the full 10 11 extent of Plaintiff’s limitations. ECF No. 16 at 13-15. Plaintiff also challenges the 12 ALJ’s RFC formulation for not being based in credited medical evidence. Id. at 8. 13 At step four of the sequential evaluation, the ALJ must determine the 14 claimant’s RFC. 20 C.F.R. § 416.920(a)(4)(iv). “[T]he ALJ is responsible for 15 translating and incorporating clinical findings into a succinct RFC.” Rounds v. 16 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In assessing 17 whether a claimant is capable of performing work available in the national 18 19 4 The Court therefore declines to address Plaintiff’s specific assignments of error 20 regarding Dr. Covell’s opinion. 2 ORDER - 23 1 economy, the ALJ must rely on complete hypotheticals posed to a vocational 2 expert. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ’s 3 hypothetical must be based on medical assumptions supported by substantial 4 evidence in the record that reflects all of the claimant’s limitations. Osenbrook v. 5 Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). The hypothetical should be “accurate, 6 detailed, and supported by the medical record.” Tackett, 180 F.3d at 1101. Here, 7 because the ALJ committed harmful error in weighing the evidence, the ALJ’s 8 hypothetical to the vocational expert was improper. On remand, the ALJ is 9 instructed to conduct a new sequential evaluation and formulate a new RFC based 10 on a proper evaluation of the evidence. 11 12 D. Step Five Plaintiff raises additional challenges to the ALJ’s findings at step five 13 regarding other work in the national economy. ECF No. 16 at 15-16. In light of 14 the Court’s findings supra and instruction to conduct a new sequential analysis on 15 remand, the Court declines to address Plaintiff’s step five arguments. 16 17 E. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 18 ECF No. 16 at 16. 19 “The decision whether to remand a case for additional evidence, or simply to 20 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 2 ORDER - 24 1 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 2 1985)). When the Court reverses an ALJ’s decision for error, the Court “ordinarily 3 must remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 4 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 5 2004) (“the proper course, except in rare circumstances, is to remand to the agency 6 for additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. 7 Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social 8 Security cases, the Ninth Circuit has “stated or implied that it would be an abuse of 9 discretion for a district court not to remand for an award of benefits” when three 10 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 11 credit-as-true rule, where (1) the record has been fully developed and further 12 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 13 to provide legally sufficient reasons for rejecting evidence, whether claimant 14 testimony or medical opinion; and (3) if the improperly discredited evidence were 15 credited as true, the ALJ would be required to find the claimant disabled on 16 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 17 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 18 the Court will not remand for immediate payment of benefits if “the record as a 19 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 20 F.3d at 1021. 2 ORDER - 25 1 Here, further proceedings are necessary to properly evaluate the medical 2 opinion evidence, including consultation with a medical expert. Furthermore, even 3 if all three credit-as-true prongs were met, remand for further proceedings would 4 still be appropriate because Plaintiff’s ability to work at SGA levels for five 5 months prior to the hearing raises serious doubt that Plaintiff is, in fact, disabled. 6 Therefore, this case is remanded for further proceedings. The ALJ is instructed to 7 take testimony from a medical expert, reweigh the medical evidence, reweigh 8 Plaintiff’s symptom allegations, and conduct a new sequential analysis. 9 10 CONCLUSION Having reviewed the record and the ALJ’s findings, this court concludes the 11 ALJ’s decision is not supported by substantial evidence and free of harmful legal 12 error. Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is GRANTED. 14 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 15 3. The Court enter JUDGMENT in favor of Plaintiff REVERSING and 16 REMANDING the matter to the Commissioner of Social Security for further 17 proceedings consistent with this recommendation pursuant to sentence four of 42 18 U.S.C. § 405(g). 19 20 2 ORDER - 26 1 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED March 25, 2019. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 27
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