Davis v. Berryhill, No. 2:2017cv01552 - Document 15 (W.D. Wash. 2018)
Court Description: ORDER REVERSING AND REMANDING DEFENDANTS DECISION TO DENY BENEFITS by Judge David W. Christel. (SH)
Download PDF
<![CDATA[
Davis v. Berryhill Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 LADRINA Y. DAVIS, Plaintiff, 11 12 13 14 15 16 17 18 19 20 21 22 23 v. NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, CASE NO. 2:17-CV-01552-DWC ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS Defendant. Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant’s denial of her applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when she failed to provide specific, legitimate reasons supported by substantial evidence for giving little weight to the medical opinions of Drs. Chinyere Obimba, Arthur Davis, and 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -1 Dockets.Justia.com 1 Kathleen Andersen. Had the ALJ properly considered the opinions of these three doctors, the 2 residual functional capacity (“RFC”) may have included additional limitations. The ALJ’s errors 3 are therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 4 42 U.S.C. § 405(g) to the Deputy Commissioner of Social Security (“Commissioner”) for further 5 proceedings consistent with this Order. 6 7 FACTUAL AND PROCEDURAL HISTORY On July 29, 2011, Plaintiff filed applications for DIB and SSI, alleging disability as of 8 May 27, 2010. See Dkt. 9, Administrative Record (“AR”) 60, 312, 881 (Plaintiff amended her 9 disability onset date from May 28, 2011 to May 27, 2010 at the first ALJ hearing). The 10 applications were denied upon initial administrative review and on reconsideration. See AR 881. 11 On May 1, 2013, ALJ Ilene Sloan found Plaintiff not disabled. AR 32-49, 881. The Appeals 12 Council denied Plaintiff’s administrative appeal, making the ALJ’s opinion the final decision of 13 the Commissioner. See AR 1-4; 20 C.F.R. § 404.981, § 416.1481. Plaintiff appealed to the 14 United States District Court for the Western District of Washington, which remanded the case 15 for further proceedings. See AR 989-1002; Davis v. Colvin, 2:14-CV-1484-RSM-JPD (W.D. 16 Wash.). 17 On remand, Plaintiff received a second hearing before ALJ Sloan, who again found 18 Plaintiff not disabled. AR 881-97, 908-45. Plaintiff did not request review of the ALJ’s decision 19 by the Appeals Council, making the ALJ’s June 21, 2017 decision the final decision of the 20 Commissioner. See AR 879. Plaintiff now appeals the ALJ’s June 21, 2017 decision finding 21 Plaintiff not disabled. 1 22 23 1 When stating “the ALJ” or “the ALJ’s decision” throughout this Order, the Court is referring to the ALJ’s 24 June 21, 2017 decision. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -2 1 In the Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) properly 2 consider the medical opinion evidence; and (2) provide clear and convincing reasons for 3 discounting Plaintiff’s subjective symptom testimony. Dkt. 13, p. 1. Plaintiff requests the Court 4 remand this case for an award of benefits. Id. at p. 18. 5 6 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 7 social security benefits if the ALJ’s findings are based on legal error or not supported by 8 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 9 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 10 DISCUSSION 11 I. 12 Plaintiff contends the ALJ erred in her evaluation of the medical opinions of Drs. Whether the ALJ properly considered the medical opinion evidence. 13 Chinyere Obimba, M.D., Arthur Davis, Ph.D., and Kathleen Andersen, M.D., and Physician’s 14 Assistant Jeannie Chang. Dkt. 13, pp. 9-18. 15 A. Acceptable Medical Sources 16 Plaintiff first asserts the ALJ failed to provide specific and legitimate reasons supported 17 by substantial evidence for discounting the medical opinions of Drs. Obimba, Davis, and 18 Andersen. Dkt. 13, pp. 9-13, 14-19. 19 The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 20 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 21 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 22 502, 506 (9th Cir. 1990)). When a treating or examining physician’s opinion is contradicted, the 23 opinion can be rejected “for specific and legitimate reasons that are supported by substantial 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -3 1 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 2 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can 3 accomplish this by “setting out a detailed and thorough summary of the facts and conflicting 4 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 5 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 6 7 1. Dr. Obimba On February 1, 2016, Plaintiff’s treating physician, Dr. Obimba, wrote a letter stating 8 Plaintiff was unable to work at that time due to an inability to control her pain. AR 1778-79. She 9 opined it would take Plaintiff one to two years to control her impairments to the point she could 10 return to work. AR 1778. 11 Dr. Obimba also wrote a letter and completed a Medical Assessment of Ability to do 12 Work-Related Activities (Physical) and a Mental Impairment Questionnaire on December 15, 13 2016. AR 1911-17. Dr. Obimba opined that Plaintiff’s fibromyalgia, asthma, anxiety, and 14 depression caused functional limitations. AR 1911-17. She found Plaintiff had the following 15 limitations: 16 17 18 19 20 21 22 • • • • • • • • Plaintiff can lift less than ten pounds occasionally; Plaintiff can stand two to four hours in an eight hour day; Plaintiff can sit, so long as she can periodically alternate between sitting and standing; Plaintiff is unable to walk more than two to four hours at a time for any employment; Plaintiff would not be able to work with chemicals, dust, or fumes; Plaintiff’s impairments restrict her ability to push, pull, reach, feel, hear, and speak; Plaintiff can occasionally climb and handle, but can never balance, stoop, crouch, kneel, or crawl; Plaintiff’s mental impairments worsen her physical pain and make it difficult for her to concentrate and communicate effectively. 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -4 1 AR 1911-15. Overall, Dr. Obimba opined that Plaintiff would be unable to keep pace in 2 employment above a maximum of two hours and would not be able to work for two consecutive 3 days in a row. AR 1912. 4 The ALJ assigned little weight to Dr. Obimba’s opinions because the opinions: (1) “are 5 inconsistent with the objective clinical findings, the claimant’s longitudinal treatment history, 6 and her performance on physical and mental examinations;” (2) did not provide specific 7 functional limitations; (3) are conclusory; (4) infringe on an issue reserved to the Commissioner; 8 and (5) are based, in part, on Plaintiff’s self-reports. AR 892-95. 9 First, the ALJ stated Dr. Obimba’s opinions “are inconsistent with the objective clinical 10 findings, the claimant’s longitudinal treatment history, and her performance on physical and 11 mental examinations.” AR 894. An ALJ need not accept an opinion which is inadequately 12 supported “by the record as a whole.” Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 13 1190, 1195 (9th Cir. 2004). However, “an ALJ errs when he rejects a medical opinion or assigns 14 it little weight while doing nothing more than ignoring it, asserting without explanation that 15 another medical opinion is more persuasive, or criticizing it with boilerplate language that fails 16 to offer a substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th 17 Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.1996)). As the Ninth Circuit 18 has stated: 19 20 21 To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. 22 Embrey, 849 F.2d at 421-22 (internal footnote omitted). 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -5 1 Here, the ALJ provided a list of medical records detailing Plaintiff’s medical treatment 2 and testing. See AR 894. The ALJ, however, failed to provide her interpretation of the evidence 3 and did not provide any explanation as to how Dr. Obimba’s opinions were contradicted by the 4 cited evidence. See AR 894. Without more, the ALJ has failed to meet the level of specificity 5 required, and the ALJ’s conclusory finding that Dr. Obimba’s opinions “are inconsistent with the 6 objective clinical findings, the claimant’s longitudinal treatment history, and her performance on 7 physical and mental examinations” not sufficient to discount the opinions. See Embrey, 849 F.2d 8 at 421 (an ALJ cannot merely state facts the ALJ claims “point toward an adverse conclusion and 9 make[] no effort to relate any of these objective factors to any of the specific medical opinions 10 and findings he rejects”). 2 11 Second, the ALJ discounted Dr. Obimba’s opinions because the opinions did not contain 12 specific functional limitations. AR 895. The ALJ failed to provide any explanation for this 13 finding. See AR 895; Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require the 14 ALJ to build an accurate and logical bridge from the evidence to her conclusions so that we may 15 afford the claimant meaningful review of the SSA’s ultimate findings.”). Further, as discussed 16 above, Dr. Obimba opined that Plaintiff had very specific functional limitations, including, but 17 not limited to, sitting, standing, walking, lifting, carrying, climbing, stooping, bending, kneeling, 18 crouching, crawling, and balancing. AR 1911-17. Dr. Obimba also found Plaintiff’s mental 19 health impairments limited her ability to concentrate and communicate effectively. AR 1911-17. 20 The ALJ fails to explain how Dr. Obimba’s opinions lack functional limitations and the ALJ’s 21 22 23 24 2 The Court also notes records cited to by the ALJ are not inconsistent with Dr. Obimba’s opinions. For example, in discounting Dr. Obimba’s opinions the ALJ noted Plaintiff was continuing to improve with acupuncture and was reducing her pain medication. AR 894. These findings are consistent with Dr. Obimba’s opinions, wherein Dr. Obimba acknowledged Plaintiff was exercising, receiving relief and increased functioning with acupuncture, and tapering off her pain medication, but found Plaintiff was still unable to work. AR 1778. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -6 1 finding is contradicted by the record. Therefore, the ALJ’s second reason for assigning little 2 weight to Dr. Obimba’s opinions is not legitimate, nor supported by substantial evidence. 3 Third, the ALJ discounted Dr. Obimba’s opinions because “the assessments were 4 conclusory.” An ALJ need not accept an opinion “if that opinion is brief, conclusory, and 5 inadequately supported by clinical findings.” Batson, 359 F.3d at 1195; Bayliss, 427 F.3d at 6 1216; see Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Here, however, Dr. 7 Obimba provided detailed opinions. She provided written letters explaining her opinion and she 8 attached medical assessment forms detailing Plaintiff’s limitations. See AR 1778-79, 1911-17. 9 Furthermore, a treating physician’s check-box form cannot be rejected if the opinion is supported 10 by treatment notes. Esparze v. Colvin, 631 Fed. App’x 460, 462 (9th Cir. 2015). Dr. Obimba is 11 Plaintiff’s treating physician and the record contains treatment notes and objective testing from 12 the clinic where Dr. Obimba practices. See AR 378-458, 476-93, 497-557, 1413-1535, 1538-41, 13 1749-77. As Dr. Obimba provided detailed reasons supporting her opinions and as the treatment 14 notes from the clinic where she practices were included in the record, the ALJ’s third reason for 15 discounting Dr. Obimba’s opinions is not valid. 16 Fourth, the ALJ assigned little weight to Dr. Obimba’s opinions because the opinions 17 infringed on an issue reserved for the Commissioner. AR 895. According to the Ninth Circuit, 18 “‘physicians may render medical, clinical opinions, or they may render opinions on the ultimate 19 issue of disability - the claimant’s ability to perform work.’” Garrison v. Colvin, 759 F.3d 995, 20 1012 (9th Cir. 2014) (quoting Reddick, 157 F.3d at 725). A doctor’s statement that a claimant 21 “would be ‘unlikely’ to work full time” was not a finding on an issue reserved to the 22 Commissioner, and is “instead an assessment, based on objective medical evidence, of [the 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -7 1 claimant’s] likelihood of being able to sustain fulltime employment[.]” Hill v. Astrue, 698 F.3d 2 1153, 1160 (9th Cir. 2012) (emphasis in original). 3 In this case, Dr. Obimba found that, in light of Plaintiff’s impairments and functional 4 limitations, Plaintiff was unable to sustain full-time employment. See AR 1911-12. Dr. Obimba 5 further explained Plaintiff would not be able to work for two consecutive days because of her 6 impairments. AR 1912. After reviewing Dr. Obimba’s opinions, the Court concludes Dr. 7 Obimba’s opinions were an assessment, based on her relationship with Plaintiff, of Plaintiff’s 8 likelihood of being able to maintain employment. Therefore, the ALJ’s fourth reason for giving 9 little weight to Dr. Obimba’s opinions is not specific and legitimate. See Reddick, 157 F.3d at 10 725 (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (other citations omitted)) 11 (Although “‘the administrative law judge is not bound by [ ] opinions of the claimant’s 12 physicians on the ultimate issue of disability,” she cannot reject an opinion on disability without 13 presenting specific and legitimate reasons supported by substantial evidence). 14 Fifth, the ALJ assigned little weight to Dr. Obimba’s opinions because the opinions were 15 based, in part, on Plaintiff’s self-reports. AR 895. An ALJ may reject a physician’s opinion “if it 16 is based ‘to a large extent’ on a claimant’s self-reports that have been properly discounted as 17 incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. 18 Comm’r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). This situation is distinguishable 19 from one in which the doctor provides his own observations in support of his assessments and 20 opinions. See Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) 21 (“an ALJ does not provide clear and convincing reasons for rejecting an examining physician’s 22 opinion by questioning the credibility of the patient’s complaints where the doctor does not 23 discredit those complaints and supports his ultimate opinion with his own observations”); see 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -8 1 also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). “[W]hen an opinion is not more 2 heavily based on a patient’s self-reports than on clinical observations, there is no evidentiary 3 basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (citing 4 Ryan, 528 F.3d at 1199-1200). 5 The ALJ provides no explanation for why she finds Dr. Obimba’s opinions are based, in 6 part, on Plaintiff’s self-reports. See AR 895. She also does not find the opinions are based “to a 7 large extent” on Plaintiff’s self-reports. See AR 895; Tommasetti, 533 F.3d at 1041 (opinion 8 must be based “to a large extent” on self-reports to be rejected). In reaching her opinions, Dr. 9 Obimba noted she had been Plaintiff’s primary care provider for three years, recognized 10 Plaintiff’s treatment and medications, and the record contains treatment notes and objective 11 testing from the medical clinic where Dr. Obimba practices. There is no indication from the 12 record that Dr. Obimba based her opinion “to a large extent” on Plaintiff’s self-reports. As the 13 ALJ has not properly explained how Dr. Obimba’s opinions are based “to a large extent” on 14 Plaintiff’s self-reports, the Court finds this is not a specific and legitimate reason supported by 15 substantial evidence for giving little weight to Dr. Obimba’s opinions. See Ghanim, 763 F.3d 16 1162 (finding the ALJ did not provide a specific and legitimate reason for discounting a doctors’ 17 opinions when the ALJ offered no basis for his conclusion that the opinions were based more 18 heavily on claimant’s self-reports and substantial evidence does not support such a conclusion). 19 For the above stated reasons, the Court concludes the ALJ failed to provide specific, 20 legitimate reasons supported by substantial evidence for assigning little weight to Dr. Obimba’s 21 opinions. Accordingly, the ALJ erred. 22 “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 23 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -9 1 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 2 Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 3 F.3d at 1115. The Ninth Circuit has stated “‘a reviewing court cannot consider an error harmless 4 unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, 5 could have reached a different disability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 6 (9th Cir. 2015) (quoting Stout, 454 F.3d at 1055-56). The determination as to whether an error is 7 harmless requires a “case-specific application of judgment” by the reviewing court, based on an 8 examination of the record made “‘without regard to errors’ that do not affect the parties’ 9 ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 10 407 (2009)). 11 Had the ALJ given great weight to Dr. Obimba’s opinions, the ALJ may have found 12 Plaintiff disabled or included additional limitations in the RFC. For example, Dr. Obimba found 13 Plaintiff was unable to sustain full-time employment and would not be able to work two 14 consecutive days in a row. AR 1912. The ALJ found there were jobs in the national economy 15 Plaintiff can perform. See AR 895-97. The ALJ also did not find Plaintiff was limited in her 16 ability to attend work. See AR 887. Therefore, if Dr. Obimba’s opinions were given great weight, 17 the ultimate disability determination may have changed. Accordingly, the ALJ’s errors are not 18 harmless and require reversal. 19 20 2. Dr. Davis Dr. Davis, a psychologist who examined Plaintiff on a few occasions, wrote Plaintiff a 21 letter with attached medical records on January 21, 2011. AR 866-74. Dr. Davis diagnosed 22 Plaintiff with major depression, recurrent, and pain disorder with probable borderline 23 personality disorder. AR 867. He noted the disabling nature of Plaintiff’s difficulties was made 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 more obvious by Plaintiff’s behavior of visiting Dr. Davis’s office during another patient’s 2 appointment. AR 867. Dr. Davis also found some of Plaintiff’s inability to remain compliant 3 with appointments was due to her psychological difficulties. AR 867. He opined Plaintiff’s 4 global assessment of functioning (“GAF”) score was 50. AR 867. 5 The ALJ assigned little weight to Dr. Davis’s opinion because the opinion is: (1) 6 “inconsistent with the objective clinical findings, the claimant’s longitudinal treatment history, 7 and her performance on physical and mental examinations;” and (2) based, in part, on Plaintiff’s 8 self-reports. AR 892-95. 9 First, as with Dr. Obimba, the ALJ stated Dr. Davis’s opinion is “inconsistent with the 10 objective clinical findings, the claimant’s longitudinal treatment history, and her performance on 11 physical and mental examinations.” AR 894. 3 As the Court explained above, an ALJ need not 12 accept an opinion which is inadequately supported by the record or inconsistent with the record. 13 See Batson, 359 F.3d at 1195. However, a conclusory finding by the ALJ is insufficient to reject 14 the opinion. See Embrey, 849 F.2d at 421-22. In this case, the ALJ simply offered her conclusion 15 that the records were inconsistent with Dr. Davis’s opinion and then provided a list of medical 16 evidence. See AR 894. The ALJ failed to provide her interpretation of the evidence and did not 17 provide any explanation as to how Dr. Davis’s opinion was contradicted by the cited evidence. 18 See AR 894. Without more, the ALJ has failed to meet the level of specificity required, and the 19 ALJ’s conclusory finding that Dr. Davis’s opinion is “inconsistent with the objective clinical 20 findings, the claimant’s longitudinal treatment history, and her performance on physical and 21 mental examinations” not sufficient to discount the opinion. See Garrison, 759 F.3d at 1012-13. 22 23 24 3 The ALJ provided this same reason for discounting the opinions of Drs. Obimba, Davis, and Andersen, and Ms. Chang. See AR 894. The ALJ stated she was discounting the opinions of several medical professionals for this reason and then provided the listed medical records to support her conclusory statement. See AR 894. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11 1 Second, the ALJ discounted Dr. Davis’s opinion because it was based, in part, on 2 Plaintiff’s self-reports. AR 894. As with the first reason, the ALJ provided this second reason in 3 a single sentence to discount the opinions of Drs. Obimba, Davis, Andersen, and Ms. Chang. AR 4 895. As stated above, an ALJ may reject a physician’s opinion “if it is based ‘to a large extent’ 5 on a claimant’s self-reports that have been properly discounted as incredible.” Tommasetti, 533 6 F.3d at 1041. The ALJ again provides no explanation for why she finds Dr. Davis’s opinion is 7 based, in part, on Plaintiff’s self-reports. See AR 895. She also does not find the opinion as based 8 “to a large extent” on self-reports. See AR 895. Further, in reaching his opinion, Dr. Davis 9 reviewed Plaintiff’s medical history, observed Plaintiff, and conducted a psychological interview 10 and MMPI-2 4 examination. See AR 886-74. Dr. Davis did not discredit Plaintiff’s subjective 11 reports, and supported his ultimate opinion with personal observations, a psychological 12 interview, and objective testing. The Court finds Dr. Davis’s opinion was not more heavily based 13 on Plaintiff’s self-reports. As the ALJ’s finding was conclusory and as Dr. Davis’s opinion was 14 not more heavily based on Plaintiff’s self-reports, the ALJ’s second reason for discounting Dr. 15 Davis’s opinion is not specific and legitimate and supported by substantial evidence. See Buck v. 16 Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (finding a clinical interview and mental status 17 evaluation are objective measures and cannot be discounted as a “self-report”). 18 The Court concludes the two reasons provided by the ALJ for assigning little weight to 19 Dr. Davis’s opinion are not specific and legitimate and supported by substantial evidence. 20 Accordingly, the ALJ erred in her consideration of Dr. Davis’s opinion. Had the ALJ properly 21 considered Dr. Davis’s opinion, the RFC and hypothetical question posed to the vocational 22 23 4 The Minnesota Multiphasic Personality Inventory -2 (“MMPI-2”) is a psychological test that assesses 24 personality traits and psychopathology. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 12 1 expert may have included additional limitations, such as absenteeism. As the ultimate disability 2 decision may have changed, the ALJ’s error is not harmless. See Molina, 674 F.3d at 1115. 3 4 3. Dr. Andersen Dr. Andersen, a consultative examining psychiatrist, completed two psychiatric reports 5 regarding Plaintiff. AR 1404-12, 1742-48. In the first report, completed on January 13, 2015, Dr. 6 Andersen diagnosed Plaintiff with depressive disorder, not otherwise specified (“NOS”), anxiety 7 disorder, NOS, pain disorder associated with psychological factors and medical conditions, and 8 marijuana abuse. AR 1747. Dr. Andersen opined that, if Plaintiff found employment, there would 9 be a great deal of absenteeism due to pain complaints. AR 1748. She also found Plaintiff would 10 report marked difficulty focusing on tasks and completing tasks related to the intrusion of her 11 pain, she would be inconsistent in her ability to appropriately participate in relations with others 12 in the workplace, and her stress tolerance would be markedly reduced. AR 1748. 13 On January 21, 2016, Dr. Andersen completed the second psychiatric report. AR 1404- 14 12. She again diagnosed Plaintiff with unspecified depressive disorder, unspecified anxiety 15 disorder, somatic symptom disorder with predominant pain, and marijuana abuse. AR 1408. Dr. 16 Andersen found Plaintiff was in optimal mental health treatment and had no other 17 recommendations for treatment. AR 1409. She stated her recommendations were essentially the 18 same as the previous evaluation. AR 1409. 19 Dr. Andersen opined Plaintiff would have absenteeism related to pain, difficulty focusing 20 on tasks and completing tasks in a timely fashion, and her preoccupation with her pain 21 experience would likely predominate in interactions with others in the workplace. AR 1409. Dr. 22 Andersen found Plaintiff moderately limited in her ability to understand and remember complex 23 instructions, carry out complex instructions, interact appropriately with the public, and respond 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 13 1 appropriately to usual work situations and changes in a routine work setting. AR 1410-11. She 2 also found Plaintiff has mild limitations in her ability to carry out simple instructions, make 3 judgments on complex work-related decisions, and interact appropriately with supervisors and 4 co-workers. AR 1410-11. 5 The ALJ assigned little weight to Dr. Andersen’s opinions because the opinions: (1) “are 6 inconsistent with the objective clinical findings, the claimant’s longitudinal treatment history, 7 and her performance on physical and mental examinations;” (2) are equivocal; and (3) relied on 8 Plaintiff’s self-reports. AR 892-95. 9 First, the ALJ discounted Dr. Andersen’s opinions because the opinions “are inconsistent 10 with the objective clinical findings, the claimant’s longitudinal treatment history, and her 11 performance on physical and mental examinations.” AR 894. As the Court has explained, in this 12 case, the ALJ has not adequately explained how the cited evidence is inconsistent with the 13 medical opinions the evidence is being used to discount. See Section I.A.1 & 2, supra. While the 14 ALJ referenced Dr. Andersen’s findings in the evidence, she provided no explanation linking her 15 conclusion that the evidence is inconsistent with Dr. Andersen’s opinions to Dr. Andersen’s 16 opinions. As with Drs. Obimba and Davis, the ALJ’s first reason for discounting Dr. Andersen’s 17 opinions is conclusory and insufficient. 18 Second, the ALJ stated Dr. Andersen’s “opinion is equivocal and does not define the 19 most the claimant can do.” AR 895. Dr. Andersen completed a Medical Source Statement, 20 wherein she found Plaintiff would have mild to moderate functional limitations as a result of her 21 depressive disorder, anxiety disorder, and pain experiences. AR 1410-11. Dr. Andersen also 22 found Plaintiff would have absenteeism, if she were employed, and noted difficulties in 23 concentration and pace. AR 1409, 1748. The ALJ fails to explain how these limitations are 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 14 1 equivocal. AR 895. Further, the Court finds these limitations can be included in an RFC 2 assessment. Therefore, the ALJ’s second reason for giving little weight to Dr. Andersen’s 3 opinions is not specific and legitimate and supported by substantial evidence. 4 Third, the ALJ discounted Dr. Andersen’s opinions because the opinions were based on 5 Plaintiff’s self-reports. AR 895. The ALJ found that, “[w]hile Dr. Andersen noted that the 6 claimant was focused on her pain issues, other records indicate that she was focused on getting 7 Social Security benefits, which would necessitate her being focused on pain issues so that it was 8 documented.” AR 895. The ALJ also stated that “Dr. Andersen relied on the claimant’s 9 subjective complaints, which are inconsistent with the majority of her longitudinal treatment 10 records and her daily activities.” AR 895. 11 Initially, the Court finds the ALJ’s third reason for discounting Dr. Andersen’s opinions 12 is conclusory. The ALJ fails to cite to any records supporting her assertion that Plaintiff was 13 deceptive regarding her pain or that her complaints were inconsistent with the longitudinal 14 treatment records and her daily activities. See AR 895. As the ALJ did not adequately explain or 15 support her findings, this is not a sufficient reason to discount Dr. Andersen’s opinions. See 16 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“the agency [must] set forth the 17 reasoning behind its decisions in a way that allows for meaningful review”); Blakes, 331 F.3d at 18 569. 19 Furthermore, in reaching her opinions, Dr. Andersen conducted clinical interviews, 20 observed Plaintiff, and conducted mental status examinations. See AR 1404-12, 1742-48. Dr. 21 Andersen did not discredit Plaintiff’s subjective reports, including her pain reports, and 22 supported her ultimate opinions with objective testing, personal observations, and clinical 23 interviews. The Court finds Dr. Andersen’s opinions were not more heavily based on Plaintiff’s 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 15 1 self-reports. Therefore, the ALJ’s third reason for giving little weight to Dr. Andersen’s opinions 2 is not specific and legitimate and supported by substantial evidence. See Buck, 869 F.3d at 1049. 3 The Court concludes the three reasons provided by the ALJ for assigning little weight to 4 Dr. Andersen’s opinions are not specific and legitimate and supported by substantial evidence. 5 Accordingly, the ALJ erred in her consideration of Dr. Andersen’s opinions. Had the ALJ 6 properly considered Dr. Andersen’s opinions, the RFC and hypothetical question posed to the 7 vocational expert may have included additional mental limitations. As the ultimate disability 8 decision may have changed, the ALJ’s error is not harmless. See Molina, 674 F.3d at 1115. 9 10 B. Other Medical Sources Plaintiff also argues the ALJ failed to properly consider the opinions of Ms. Chang, 11 Plaintiff’s treating physician’s assistant. Dkt. 13, pp. 13-14. The Court concludes the ALJ 12 committed harmful error in assessing the opinions of Drs. Obimba, Davis, and Andersen and this 13 case must be remanded for further consideration of the medical evidence. See Section I.A., 14 supra. As this case must be remanded, the Court declines to consider whether the ALJ erred in 15 consideration of Ms. Chang’s opinions. Rather, the Court finds the ALJ should re-evaluate all the 16 medical opinion evidence, including Ms. Chang’s opinions, on remand. 17 II. Whether the ALJ provided proper reasons for discounting Plaintiff’s subjective symptom testimony. 18 Plaintiff contends the ALJ failed to give clear and convincing reasons for rejecting 19 Plaintiff’s testimony about her symptoms and limitations. Dkt. 13, pp. 3-9. The Court concludes 20 the ALJ committed harmful error in assessing the medical opinion evidence and must re-evaluate 21 all the medical opinion evidence on remand. See Section I, supra. Because the ALJ’s 22 reconsideration of the medical evidence may impact her assessment of Plaintiff’s subjective 23 testimony, on remand, the ALJ must reconsider Plaintiff’s subjective testimony. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 16 1 III. 2 Plaintiff argues this matter should be remanded with a direction to award benefits. See Whether the case should be remanded for an award of benefits. 3 Dkt. 13, p. 18. The Court may remand a case “either for additional evidence and findings or to 4 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the 5 Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand 6 to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 7 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for 8 determining when evidence should be credited and an immediate award of benefits directed[.]” 9 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded 10 where: 11 12 13 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 14 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 15 The Court has determined, on remand, the ALJ must re-evaluate the medical opinion 16 evidence and Plaintiff’s subjective symptom testimony to determine if Plaintiff is capable of 17 performing jobs existing in significant numbers in the national economy. Therefore, there are 18 outstanding issues which must be resolved and remand for further administrative proceedings is 19 appropriate. 20 21 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 22 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 17 1 this matter is remanded for further administrative proceedings in accordance with the findings 2 contained herein. 3 Dated this 23rd day of July, 2018. A 4 5 David W. Christel United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 18
]]>
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.
