Jackson v. Berryhill, No. 3:2017cv05312 - Document 24 (W.D. Wash. 2018)

Court Description: ORDER REVERSING AND REMANDING DEFENDANTS DECISION TO DENY BENEFITS by Judge David W. Christel. (SH)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 BRIAN A. JACKSON, 11 12 Plaintiff, ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS v. 13 14 15 16 17 CASE NO. 3:17-CV-05312-DWC NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant. Plaintiff Brian A. Jackson filed this action, pursuant to 42 U.S.C. § 405(g), for judicial 18 review of Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) 19 and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 20 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 21 the undersigned Magistrate Judge. See Dkt. 6. 22 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 23 erred by failing to follow instructions from this Court and the Appeals Council directing her to 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -1 1 conduct further proceedings consistent with a previous Order from the Court. Had the ALJ 2 followed the Court’s instructions by properly considering medical opinion evidence from Dr. 3 Brian Allender, M.D., the residual functional capacity (“RFC”) may have included additional 4 limitations. The ALJ’s error is therefore not harmless, and this matter is reversed and remanded 5 pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security 6 (“Commissioner”) for further proceedings consistent with this Order. 7 8 FACTUAL AND PROCEDURAL HISTORY This case has an extensive procedural background, with three ALJ hearings and three 9 ALJ decisions. On October 22, 2008, Plaintiff filed applications for SSI and DIB, alleging 10 disability as of December 1, 2006. See Dkt. 9, Administrative Record (“AR”) 17. The 11 applications were denied upon initial administrative review and on reconsideration. See AR 17. 12 ALJ Wayne Araki held the first hearing in this matter on August 11, 2010. AR 92-125. On 13 September 23, 2010, ALJ Araki issued the first ALJ decision, finding Plaintiff to be not disabled. 14 AR 137-44. Thereafter, Plaintiff appealed to the Appeals Council, which granted Plaintiff’s 15 request for review of the ALJ’s decision and remanded the case back to the ALJ. AR 153-55. 16 On December 6, 2012, ALJ Cynthia D. Rosa held the second hearing in this matter. AR 17 57-89. ALJ Rosa issued the second unfavorable decision on April 26, 2013, again finding 18 Plaintiff to be not disabled. AR 17-43. The Appeals Council denied Plaintiff’s request for review 19 on October 3, 2014. AR 1-3. On December 8, 2014, Plaintiff filed the first suit in this Court, 20 seeking review of ALJ Rosa’s decision. See AR 1273-74. The Court issued an Order on 21 December 28, 2015, finding the ALJ erred in her consideration of medical opinion evidence from 22 Dr. Allender, her assessment of Plaintiff’s RFC, and the subsequent Step Five findings. See AR 23 1258-72. As such, the Court reversed and remanded the matter for further proceedings. AR 1258, 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -2 1 1272. Thereafter, pursuant to the Court’s Order, the Appeals Council vacated the ALJ’s decision 2 and remanded the case to an ALJ “for further proceedings consistent with the order of the court.” 3 AR 1279. 4 ALJ Rosa held the third hearing in this matter on June 2, 2016. AR 1162-90. On 5 December 30, 2016, ALJ Rosa issued the third unfavorable decision in this matter, finding 6 Plaintiff to be not disabled. AR 1114-42. ALJ Rosa’s December 30, 2016 decision is the 7 Commissioner’s final decision. See 20 C.F.R. § 404.981, § 416.1481. Plaintiff now appeals ALJ 8 Rosa’s December 30, 2016 decision. 1 9 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) comply 10 with the Court’s Order regarding her treatment of Dr. Allender’s March 2010 medical opinion; 11 (2) provide specific and legitimate reasons to discount other medical opinions, including a 12 December 2012 opinion from Dr. Allender and medical opinion evidence from Dr. Alysa A. 13 Ruddell, Ph.D.; Dr. Shawn Kenderline, Ph.D.; Dr. David Widlan, Ph.D.; Dr. Joy Ruiz-Molleston, 14 M.D.; Dr. Rufino Ramos, M.D.; Dr. Victoria McDuffee, Ph.D.; and Dr. Tasmin Bowes, Psy.D.; 15 (3) provide germane reasons to discount opinion evidence from licensed mental health counselor 16 Patricia Falsetto and lay witness Pam Lake; and (4) provide an RFC supported by substantial 17 evidence in the record. Dkt. 13, pp. 1-18. As a result of these errors, Plaintiff argues an award of 18 benefits is appropriate. Id. at 18. 19 20 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 21 social security benefits if the ALJ’s findings are based on legal error or not supported by 22 23 1 When stating “the ALJ” or “the ALJ’s decision” throughout this Order, the Court is referring to ALJ Rosa 24 and her December 30, 2016 decision. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -3 1 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 2 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 3 4 DISCUSSION I. Whether the ALJ failed to comply with the previous Order from this Court regarding Dr. Allender’s March 2010 opinion. 5 Plaintiff first argues the ALJ erred by violating the Court’s previous Order, which 6 remanded the case for proper consideration of Dr. Allender’s March 2010 medical opinion. Dkt. 7 13, pp. 4-6. In particular, Plaintiff argues the ALJ erred by discounting Dr. Allender’s opinion 8 with reasons the Court previously found legally insufficient. Id. 9 Under the rule of mandate, “the mandate of a higher court is controlling as to matters 10 within its compass.” Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939). A lower court is 11 generally “bound to carry the mandate of the upper court into execution and [may] not consider 12 the questions which the mandate laid at rest.” Id. Similarly, under the law of the case doctrine, 13 “[t]he decision of an appellate court on a legal issue must be followed in all subsequent 14 proceedings in the same case.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995) (quoting 15 Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.1993) (internal quotations omitted)). 16 Additionally, “as a general principle, the United States Supreme Court has recognized 17 that an administrative agency is bound on remand to apply the legal principles laid down by the 18 reviewing court.” Ischay v. Barnhart, 383 F.Supp.2d 1199, 1213–1214 (C.D. Cal. 2005); see 19 Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (citations omitted) (deviation from the court’s 20 remand order in the subsequent administrative proceedings is itself legal error, subject to reversal 21 on further judicial review). Likewise, Social Security regulations provide: 22 23 When a Federal court remands a case to the Commissioner for further consideration, the Appeals Council, acting on behalf of the Commissioner, may make a decision, or it may remand the case to an administrative law judge with 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -4 1 2 instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. If the case is remanded by the Appeals Council, the procedures explained in [20 C.F.R.] § 404.977 will be followed. 3 20 C.F.R. § 404.983 (emphasis added). Under 20 C.F.R. § 404.977, when the Appeals Council 4 remands a case to the ALJ, the ALJ “shall take any action that is ordered by the Appeals Council 5 and may take any action that is not inconsistent with the Appeals Council’s remand order.” On 6 remand, the ALJ must follow the specific instructions of the reviewing court. See, e.g., Samples 7 v. Colvin, 103 F.Supp.3d 1227, 1231-32 (D. Or. 2015). 8 A. Dr. Allender’s March 2010 Opinion 9 Dr. Allender is Plaintiff’s treating psychiatrist. See AR 1079. On March 31, 2010, Dr. 10 Allender completed a Psychological/Psychiatric Evaluation form regarding Plaintiff’s mental 11 health. AR 914-20. Dr. Allender diagnosed Plaintiff with major depressive disorder and post12 traumatic stress disorder (“PTSD”). AR 915. He noted these disorders severely impact Plaintiff’s 13 ability to conduct work activities. AR 915. Moreover, Dr. Allender found Plaintiff had a 14 diagnosis of substance abuse or dependence on methamphetamine that had been in remission for 15 over ten years. AR 916. 16 With respect to cognitive functional limitations, Dr. Allender opined Plaintiff had a mild 17 limitation in his ability to learn new tasks and moderate limitation in his ability to perform 18 routine tasks due to anxiety and stress. AR 917. Further, Dr. Allender determined Plaintiff had a 19 severe limitation in his ability to exercise judgment and make decisions based on his 20 observations of Plaintiff’s struggles with concentration and problem solving. AR 917. 21 Regarding social functional limitations, Dr. Allender opined Plaintiff had a severe 22 limitation in his ability to relate appropriately to co-workers and supervisors because Plaintiff 23 “reported difficulty working with or around others.” AR 917. In addition, Dr. Allender found 24 Plaintiff had a marked limitation in his ability to interact appropriately in public contacts. AR ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -5 1 917. Dr. Allender opined Plaintiff had a severe limitation in his ability to maintain appropriate 2 behavior in a work setting, as well as a severe limitation in his ability to respond appropriately to 3 and tolerate the pressures and expectations of a normal work setting. AR 917. Dr. Allender 4 opined to these latter two limitations based on his own observations, his understanding of how 5 Plaintiff’s mental illness impacts his daily activities, and Plaintiff’s reports. AR 917. 6 B. The Court’s December 2015 Order 7 On December 28, 2015, this Court reversed and remanded the second ALJ decision in 8 this matter, finding the ALJ’s treatment of Dr. Allender’s March 2010 opinion unsupported by 9 substantial evidence. See AR 1258-71. In its decision, the Court considered ALJ Rosa’s 10 treatment of Dr. Allender’s opinion in three distinct sections and found the ALJ erred regarding 11 the limitations discussed in the first and third sections. See AR 1265-67. 12 First, the Court found the ALJ erred in her treatment of Dr. Allender’s opinion that 13 Plaintiff would have a severe cognitive limitation in his ability to exercise judgment and make 14 decisions. AR 1265-66. The Court explained the ALJ erred because she “did not give any 15 reason” to reject this finding, and it was unclear whether the ALJ’s decision to limit Plaintiff to 16 “simple, routine, repetitive tasks” encompassed this limitation.2 See AR 1265-66. 17 Second, the Court found the ALJ did not err in rejecting Dr. Allender’s opinion that 18 Plaintiff had a severe limitation in his ability to relate appropriately to co-workers and 19 supervisors, and a marked limitation in his ability to interact appropriately with the public. AR 20 1266. The Court concluded the ALJ properly rejected these social limitations because Dr. 21 Allender’s report indicated he premised these limitations solely on Plaintiff’s self-report. See AR 22 23 24 2 In this section of its decision, the Court also discussed Dr. Allender’s opinion that Plaintiff was moderately limited in his ability to perform routine tasks, but did not expressly find the ALJ erred regarding this limitation. See AR 1265-66. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -6 1 1266 (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal 2 citations omitted) (medical opinion premised on Plaintiff’s subjective complaints may be 3 disregarded where those complaints have been properly discounted). Moreover, the Court noted 4 “the ALJ restricted [P]laintiff to work that does not involve any public contact, and so this 5 limitation is fully accounted for in the ALJ’s RFC assessment in any event.” AR 1266. 6 Third, the Court found the ALJ erred in discounting Dr. Allender’s opinion that Plaintiff 7 had severe limitations in maintaining appropriate behavior in a work setting, and responding 8 appropriately to and tolerating the pressures and expectations of a normal work setting. AR 9 1266-67. The Court reasoned that although the ALJ discounted these limitations for being based 10 on Plaintiff’s self-reports, the ALJ erred because Dr. Allender also expressly based these 11 limitations on his own observations and understanding of how Plaintiff’s mental illness affects 12 his daily activities. AR 1267 (citing Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); 13 Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008)). The Court 14 went on to explain the activities of daily living the ALJ cited “are not necessarily inconsistent” 15 with these opined limitations, as it is unclear “the nature or extent to which [P]laintiff interacts 16 with others while engaging” in these activities. AR 1267. 17 In light of the ALJ’s errors regarding Dr. Allender’s medical opinion, the Court found the 18 ALJ’s RFC assessment and Step Five determination were unsupported by substantial evidence. 19 AR 1267-70. Therefore, the Court reversed and remanded the matter to the Commissioner for 20 further administrative proceedings in accordance with its Order. See AR 1258, 1271. On remand, 21 the Appeals Council vacated the ALJ’s decision and remanded the case to an ALJ “for further 22 proceedings consistent” with the Court’s Order. AR 1279. Given that the Court and Appeals 23 Council ordered the ALJ to conduct further proceedings consistent with the Court’s Order, the 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -7 1 threshold inquiry is whether the ALJ reconciled her errors regarding Dr. Allender’s opinion on 2 remand. 3 C. The ALJ’s Current Decision 4 On remand, the ALJ again discounted Dr. Allender’s findings. See AR 1136-37. First, the 5 ALJ partly discounted Dr. Allender’s opinion that Plaintiff had a moderate limitation in his 6 ability to perform routine tasks and a severe limitation in his ability to exercise judgment and 7 make decisions. AR 1136. Specifically, the ALJ wrote that although she “generally agrees” with 8 this assessment, she went on to explain: 9 10 11 As noted, the broad terms used to rate functioning on the DSHS form, particularly “moderate” is too vague to be of use in the instant analysis. The undersigned concludes that the claimant’s activities show that, despite the assessed moderate limitation in performing routine tasks, the claimant’s reported activities of daily living show that he is able to perform simple, routine, repetitive tasks routinely. 12 AR 1136. 13 As Plaintiff accurately notes, this language is identical to the language this Court rejected 14 with respect to these limitations in its previous Order. Dkt. 13, p. 5; compare AR 36 (previous 15 ALJ decision) with AR 1136 (current ALJ decision) and AR 1265-66 (Court’s decision rejecting 16 this language). However, unlike her previous decision, the ALJ elaborated on how the RFC 17 accounts for these cognitive limitations. See AR 1137. In relevant part, the ALJ explained: 18 19 20 21 22 23 Overall, the [RFC] found above is consistent with the cognitive limitations proposed by Dr. Allender. When asked about decision-making and judgment necessary for occupations with a Reasoning Level of 1, the impartial vocational expert testified that . . . the occupations described below, require an individual to apply “common sense understanding” to carry out “simple” one to two-step instructions, deal with standardized situations with occasional or no variables with situations encountered on the job, they are short-cycled with very little changes. In testifying consistent with the DOT, the vocational expert did not identify decision-making or judgment necessary in performing occupations at Reasoning Level 1 . . . The undersigned finds the vocational expert’s testimony of be credible and persuasive. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -8 1 AR 1137 (emphasis added). 2 The Court previously rejected the ALJ’s treatment of these cognitive limitations because 3 the ALJ failed to explain how she accounted for these findings. See AR 1265-66. This time, 4 however, the ALJ explained how she accounted for these cognitive limitations in the RFC and 5 hypothetical questions posed to the vocational expert (“VE”). See AR 1137. Because the ALJ’s 6 new decision explains her consideration of these limitations, the Court finds Plaintiff failed to 7 show the ALJ violated the Court’s Order on these limitations. See Dkt. 13, 23; Ludwig v. Astrue, 8 681 F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party claiming error to demonstrate 9 not only the error, but also that it affected his ‘substantial rights.’”); Allen v. Heckler, 749 F.2d 10 577, 579 (9th Cir. 1984) (citation omitted) (“If the evidence admits of more than one rational 11 interpretation,” the Commissioner’s decision must be upheld). 12 Second, regarding Plaintiff’s limitations relating appropriately to co-workers and 13 supervisors and interacting appropriately with the public, the ALJ again discounted these 14 limitations for being based on Plaintiff’s self-reports. See AR 1136-37. The ALJ used language 15 identical to the language from her previous decision to discount these limitations. Compare AR 16 36 (previous ALJ decision) with AR 1136-37 (current ALJ decision). Thus, given that the Court 17 upheld this language in its previous decision, the ALJ did not violate the Court’s Order with 18 respect to these limitations. See AR 1266. 19 Third, the ALJ discounted Dr. Allender’s opinion that Plaintiff had severe limitations in 20 his ability to maintain appropriate behavior in a work setting and respond appropriately to and 21 tolerate the pressures and expectations of a normal work setting. See AR 1136-37. The ALJ 22 wrote: 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -9 1 2 3 Dr. Allender . . . based each rating on the claimant’s reports of difficulty working with or around others, his avoidance of social contact, and the doctor’s “understanding of the impact his mental illness has on his daily activities.” These reports, even the quoted portion, are based on the claimant’s reports and are not consistent with his actual reported activities, which include taking public transportation, living with or visiting family regularly, shopping in stores. 4 AR 1136-37. 5 Once again, the ALJ used language identical to her previous decision to discount these 6 limitations. Compare AR 36 (previous ALJ decision) with AR 1136-37 (current ALJ decision). 7 In its previous decision, the Court found this language insufficient to discount these limitations. 8 AR 1267. In the decision currently at issue, the ALJ failed to elaborate on or change this 9 erroneous language. 3 See AR 1136-37. Hence, the ALJ erred, as she violated instructions from 10 the Court and Appeals Council which ordered her to properly conduct further proceedings 11 consistent with the Court’s Order. See Trujillo v. Astrue, 2011 WL 5870080, at *6-7 (C.D. Cal. 12 Nov. 22, 2011) (remand required when the ALJ committed legal error by failing to follow the 13 remand order of the district court and Appeals Council); Scott v. Barnhart, 592 F.Supp.2d 360, 14 371-72 (W.D. N.Y. 2009) (ALJ’s failure to comply with the Appeals Council’s order after 15 remand from the district court constituted legal error and necessitated remand); Ischay, 383 16 F.Supp.2d at 1217 (ALJ erred when he failed to follow the Appeals Council’s remand, which 17 directed the ALJ to conduct further proceedings consistent with the order of the court). 18 D. Harmless Error 19 Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 20 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or 21 22 23 24 3 Defendant asserts the ALJ corrected this mistake because “on remand, the ALJ considered subsequent treatment notes from Dr. Allender, describing Plaintiff as interacting appropriately and maintaining concentration and focus, despite his numerous subjective complaints.” Dkt. 22, p. 5 (citing AR 1137, 1427-76). The context of the ALJ’s statements, however, indicate the ALJ used these subsequent treatment notes to discredit Dr. Allender’s December 2012 statement, not the March 2010 opinion at issue. Therefore, Defendant’s argument is unpersuasive. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r of Soc. 2 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The 3 determination as to whether an error is harmless requires a “case-specific application of 4 judgment” by the reviewing court, based on an examination of the record made “‘without regard 5 to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 6 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)). 7 Here, the ALJ used language the Court found erroneous in its previous Order to discount 8 some of Dr. Allender’s opined limitations. Therefore, the ALJ erred. Had the ALJ followed the 9 directions from the Court and Appeals Council by properly considering Dr. Allender’s opinion 10 on remand, the RFC and hypothetical questions posed to the VE may have included additional 11 limitations. For example, the RFC and hypothetical questions may have contained restrictions 12 reflecting Plaintiff’s severe limitation in his ability to maintain appropriate behavior in a work 13 setting. The RFC and hypothetical questions may have also contained restrictions reflecting 14 Plaintiff’s severe limitation in his ability to respond appropriately to and tolerate the pressures 15 and expectations of a normal work setting. Neither the RFC nor the hypothetical questions posed 16 to the VE reflected these limitations. See AR 1119, 1182-90. Thus, because the ALJ’s treatment 17 of these limitations from Dr. Allender may have changed if she followed the instructions of the 18 Court and Appeals Council on remand, the ALJ’s error is not harmless and requires reversal. 19 Although the Court finds the ALJ erred regarding only some of Dr. Allender’s opined 20 limitations, the Court instructs the ALJ to re-evaluate this entire opinion on remand, as 21 reconsideration of these limitations may impact her treatment of Dr. Allender’s other opined 22 limitations. 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11 1 Plaintiff additionally argues the ALJ erred in her treatment of a December 2012 opinion 2 from Dr. Allender. Dkt. 13, pp. 6-7. Because proper treatment of Dr. Allender’s March 2010 3 opinion may impact the ALJ’s treatment of this later opinion, the ALJ shall reconsider Dr. 4 Allender’s December 2012 opinion on remand, as well. Similarly, as reconsideration of Dr. 5 Allender’s opinions may impact multiple aspects of the sequential evaluation process, the Court 6 instructs the ALJ to re-evaluate the entire sequential evaluation process on remand. 7 II. Whether the ALJ properly considered other medical opinion evidence in the record. 8 Plaintiff next argues the ALJ erred in her consideration of medical opinion evidence from 9 Drs. Ruddell, Kenderline, Widlan, Ruiz-Molleston, Ramos, McDuffee, and Bowes. Dkt. 13, pp. 10 7-19. The Court has determined the ALJ committed harmful error regarding Dr. Allender’s 11 March 2010 medical opinion. See Section I, supra. Because this error alone necessitates remand, 12 the Court will not decide whether the ALJ committed harmful error regarding these other 13 medical opinions. Nevertheless, the Court notes the ALJ committed the following errors in the 14 treatment of these medical opinions, which the ALJ must reconcile on remand. 4 15 A. Substantial Evidence 16 As a general matter, this Court may reverse an ALJ’s decision if the ALJ’s findings are 17 not supported by substantial evidence in the record as a whole. Bayliss, 427 F.3d at 1214 n.1 18 (citation omitted). Likewise, the ALJ may only reject a treating or examining physician’s 19 contradicted opinion with “specific and legitimate reasons that are supported by substantial 20 evidence.” Id. at 1216 (citation omitted) (emphasis added). 21 22 23 24 4 The errors discussed in this section are not an exhaustive list of the ALJ’s errors regarding the medical opinion evidence. Rather, the Court provides this discussion to assist the ALJ on remand in reconsideration of these medical opinions. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 12 1 The ALJ violated these general principles in her decision. For instance, the ALJ rejected 2 Dr. Ramos’s medical opinion because “Dr. Ramos did not assess the claimant’s functioning on 3 consultative examination . . . but simply repeated the claimant’s claims.” AR 1135. This 4 statement was unsupported by substantial evidence, as Dr. Ramos indeed assessed Plaintiff’s 5 functional limitations. For instance, Dr. Ramos opined Plaintiff “has difficulty being impatient 6 and cannot sustain activity for a long period of time.” AR 712. In addition, Dr. Ramos opined 7 Plaintiff’s “panic disorder needs to be treated in order for him to be able to expose himself to the 8 public.” AR 712. Hence, contrary to the ALJ’s assertion, Dr. Ramos assessed Plaintiff’s 9 functioning. See Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not 10 reject significant probative evidence without explanation”). 11 Furthermore, Dr. Ramos’s report reveals he did not simply repeat Plaintiff’s reports as 12 the ALJ claimed; rather, Dr. Ramos backed his opinion with his own mental status examination, 13 which cannot be discounted as self-report. See AR 711-12; Buck v. Berryhill, 869 F.3d 1040, 14 1049 (9th Cir. 2017). The Ninth Circuit has also held that given the “nature of psychiatry,” 15 psychiatric evaluations and diagnoses “will always depend in part on the patient’s self-report, as 16 well as on the clinician’s observations of the patient.” Buck, 869 F.3d at 1049. 17 In sum, the ALJ’s assertion that Dr. Ramos’s report contained no functional limitations 18 and simply relied on Plaintiff’s claims is unsupported by substantial evidence in the record. 19 B. Conclusory Reasoning 20 An ALJ cannot discount a physician’s opinion in a conclusory manner. Instead, the ALJ 21 must state her interpretations and explain why they, rather than the physician’s interpretations, 22 are correct. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 13 1 In this case, the ALJ used conclusory reasoning multiple times in discounting medical 2 opinions. For example, Dr. McDuffee opined Plaintiff had a moderate, marked, or severe 3 limitation in nearly every area of basic work activity. See AR 1494. The ALJ gave “limited 4 weight” to Dr. McDuffee’s opinion, finding “the longitudinal record” showed Plaintiff did not 5 possess any marked limitations. AR 1138-39. Likewise, although Dr. Bowes opined Plaintiff had 6 moderate and marked limitations in nearly every basic work activity, the ALJ assigned this 7 opinion “limited weight” in light of the longitudinal record See AR 1140, 1483-84. Yet for both 8 Dr. McDuffee and Dr. Bowes, the ALJ failed to explain which aspects of the longitudinal record 9 contradicted their particular findings. See AR 1139. Therefore, these were not specific, legitimate 10 reasons, supported by substantial evidence, to discount these physicians’ findings. See McAllister 11 v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (ALJ’s rejection of a physician’s opinion on the 12 ground that it was contrary to the record was “broad and vague,” as the ALJ failed to explain 13 why the physician’s opinion was flawed). 14 C. Self-Reports 15 Moreover, an ALJ may reject a physician’s opinion if it is largely based “a claimant’s 16 self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 17 1035, 1041 (9th Cir. 2008) (citation omitted). However, an ALJ cannot reject “an examining 18 physician’s opinion by questioning the credibility of the patient’s complaints where the doctor 19 does not discredit those complaints and supports his ultimate opinion with his own 20 observations.” Ryan, 528 F.3d at 1199-1200 (citing Edlun v. Massanari, 253 F.3d 1152, 1159 21 (9th Cir. 2001)). 22 Here, Dr. Kenderline opined Plaintiff had moderate and marked limitations in several 23 areas of social functioning. See AR 907. The ALJ gave these limitations “little weight,” finding 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 14 1 Dr. Kenderline “based each domain on [Plaintiff’s] subjective reports of having difficulty in 2 large groups, as well as his long-term chemical dependency and limited vocational skills.” AR 3 1136. Despite the ALJ’s assertion that Dr. Kenderline based these findings on Plaintiff’s self4 reports, Dr. Kenderline herself did not discredit Plaintiff’s complaints, and she supported her 5 opinions with her own mental status examination. See Ryan, 528 F.3d at 1199-1200; see also 6 Buck, 869 F.3d at 1049 (mental status examinations are “objective measures” which “cannot be 7 discounted as a self-report”). 8 Furthermore, contrary to the ALJ’s statement, Dr. Kenderline’s report reveals she did not 9 solely base these findings on Plaintiff’s reports. For example, regarding Dr. Kenderline’s opinion 10 that Plaintiff was moderately limited in his ability to interact appropriately in public contacts, Dr. 11 Kenderline wrote she based this finding on Plaintiff’s reports as well as her personal observation 12 that Plaintiff “was uncomfortable while in the lobby before his interview.” AR 907. With respect 13 to Dr. Kenderline’s opinion that Plaintiff was markedly limited in responding appropriately to 14 and tolerating the pressures and expectations of a normal work setting, Dr. Kenderline wrote she 15 based this opinion on Plaintiff’s “limited vocational skills in conjunction with his psychiatric 16 symptoms.” AR 907. Thus, the ALJ’s decision to discount Dr. Kenderline’s opinion regarding 17 Plaintiff’s social functioning because it was based Plaintiff’s self-reports was not a specific, 18 legitimate reason, supported by substantial evidence. 19 D. Examining Physicians 20 Additionally, an ALJ must provide “clear and convincing” reasons for rejecting the 21 uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 22 821, 830 (9th Cir. 1996) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Embrey, 23 849 F.2d at 422). When a treating or examining physician’s opinion is contradicted, the opinion 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 15 1 can be rejected “for specific and legitimate reasons that are supported by substantial evidence in 2 the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 3 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 4 In this case, the ALJ discounted Dr. McDuffee’s medical opinion because 5 contemporaneous treatment notes showed he was “much more functional” than Dr. McDuffee 6 opined him to be “based on their one time encounter.” AR 1139. The ALJ provided an identical 7 reason to reject Dr. Bowes’ medical opinion. See AR 1140. The fact that these examining 8 physicians’ opinions appeared inconsistent with the treating physicians’ notes shifted the 9 standard of review to reject the opinions to “specific and legitimate,” but did not eliminate the 10 need for the ALJ to provide a proper reason to reject this opinion. See Lester, 81 F.3d at 830-31 11 (citations omitted). In addition, the ALJ failed to explain what aspects of the contemporaneous 12 treatment notes contradicted particular findings by Drs. McDuffee or Bowes. See AR 1139, 13 1140. As such, the ALJ erred by providing these reasons to reject the medical opinions of Drs. 14 McDuffee and Bowes, as they were conclusory and not specific, legitimate reasons for doing so. 15 See Embrey, 849 F.2d at 422 (an ALJ cannot merely state facts he claims “point toward an 16 adverse conclusion and make[] no effort to relate any of these objective factors to any of the 17 specific medical opinions and findings he rejects”). 18 III. Whether the ALJ properly considered evidence from Plaintiff’s licensed mental health counselor and a lay witness. 19 Plaintiff contends the ALJ erred in his treatment of evidence from Plaintiff’s licensed 20 mental health counselor, Patricia Falsetto, and lay witness Pam Lake. Dkt. 13, pp. 10-11, 17. 21 The Court concluded the ALJ committed harmful error in her treatment of medical 22 opinion evidence from Dr. Allender. See Section I, supra. Because the ALJ’s reconsideration of 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 16 1 the medical evidence may impact her assessment of the statements from Ms. Falsetto and Ms. 2 Lake, the ALJ must reconsider this evidence on remand. 3 IV. 4 Plaintiff also argues the ALJ erred because the RFC is not supported by substantial Whether the RFC is supported by substantial evidence in the record. 5 evidence in the record. Dkt. 13, pp. 15-18. 6 The ALJ committed harmful error regarding her consideration of Dr. Allender’s medical 7 opinion evidence. See Section I, supra. Because proper consideration of Dr. Allender’s opinion 8 may impact the limitations contained in the RFC, the ALJ is directed to reassess the RFC on 9 remand. See SSR 96-8p, 1996 WL 374184 (1996) (an RFC “must always consider and address 10 medical source opinions”); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 11 2009) (“an RFC that fails to take into account a claimant’s limitations is defective”). 12 V. 13 Lastly, Plaintiff requests the Court remand his claim for a benefits award. Dkt. 13, p. 18. 14 The Court may remand a case “either for additional evidence and findings or to award Whether the case should be remanded for an award of benefits. 15 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court 16 reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the 17 agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 18 Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when 19 evidence should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211 20 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where: 21 22 23 (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. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 17 1 Smolen, 80 F.3d at 1292. 2 In this case, the Court has determined the ALJ committed harmful error regarding Dr. 3 Allender’s medical opinion and also erred with regard to other medical evidence. Because 4 outstanding issues remain regarding the medical evidence, Plaintiff’s RFC, and his ability to 5 perform other jobs existing in significant numbers in the national economy, remand for further 6 consideration of this matter is appropriate. 7 Moreover, the Court recognizes this case has twice been decided by ALJ Rosa and both 8 decisions have been reversed and remanded by this Court. Further, ALJ Rosa has erred twice in 9 her consideration of Dr. Allender’s opinion and failed to follow the Order of this Court. See AR 10 790-94. As such, the Court recommends the Commissioner assign this case to a different ALJ for 11 all further proceedings. See Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996) (recommending 12 the Commissioner assign the case to a different ALJ for all further proceedings); see also 13 Wentworth v. Barnhart, 71 Fed. App’x. 727, 728 (9th Cir. 2003) (finding the ALJ was biased and 14 remanding to “the district court with directions to remand to the Social Security Administration 15 with instructions that the matter be assigned to a different ALJ”). 16 17 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 18 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 19 this matter is remanded for further administrative proceedings in accordance with the findings 20 contained herein. 21 Dated this 26th day of March, 2018. A 22 23 David W. Christel United States Magistrate Judge 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 18

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