Schamber v. Commissioner of Social Security, No. 1:2017cv03135 - Document 20 (E.D. Wash. 2018)
Court Description: ORDER GRANTING ECF No. 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING ECF No. 18 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Judge Rosanna Malouf Peterson. (TR, Case Administrator)
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s [or her] reasons for rejecting medical 17 opinion evidence, the ALJ must do more than state a conclusion, rather, the ALJ 18 must “set forth his own interpretations and explain why they, rather than the 19 doctors’, are correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “This 20 can be done by setting out a detailed and thorough summary of the facts and 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-10 1 conflicting clinical evidence, stating his interpretation thereof, and making 2 findings.” Id. 3 Defendant argues the ALJ “reasonably inferred that Dr. Duris relied mostly 4 on [Plaintiff’s] unsupported claims in rendering his opinion.” ECF No. 18 at 5. In 5 support of this argument, Defendant cites the results of the mental status 6 examination performed by Dr. Duris, which included findings of: normal speech; 7 open and cooperative responses; euthymic mood; and normal thought process and 8 content, orientation, perception, concentration, insight, and judgment. ECF No. 18 9 at 5 (citing Tr. 346-47). However, in spite of these normal examination findings, it 10 is important to note that Plaintiff is claiming disability based solely on cognitive 11 impairment; and Dr. Duris’s mental status evaluation indicated that Plaintiff’s 12 cognitive functioning was not within normal limits. . Tr. 347. In addition, Dr. 13 Duris conducted WAIS and WMS-III tests to assess Plaintiff’s “cognitive 14 concerns” and “memory concerns,” and offered extensive narrative, in the form of 15 clinical findings, to support his opinion. Tr. 343-44. The scores of the tests 16 administered by Dr. Duris included “extremely low range of intellectual 17 functioning”; borderline range in working memory; extremely low range in 18 immediate memory and general memory; extremely low range in auditory 19 learning; and extremely low range in overall delayed memory capabilities. Tr. 20 343-44. As noted by Plaintiff, presumably based on these test results, Dr. Duris 21 diagnosed Plaintiff with mild mental retardation. Tr. 345. Finally, the Court notes ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-11 1 that Dr. Duris’s interview with Plaintiff contains minimal subjective complaints, 2 aside from his report that he had “a history of learning difficulties”; and that when 3 attempting to work in a warehouse sorting apples he “found it hard to learn what to 4 do and he made a lot of mistakes and was slow they told him.” Tr. 342. Neither 5 the ALJ, nor the Defendant, offers any evidence that Dr. Duris relied “to a large 6 extent” on Plaintiff’s minimal subjective complaints as opposed to the clinical 7 findings cited in his opinion, as discussed in detail above. For all of these reasons, 8 the ALJ failed to provide a specific and legitimate reason, supported by substantial 9 evidence, to reject Dr. Duris’s opinion. 10 Second, the ALJ found “Dr. Duris did not appear to have reviewed historical 11 records, such as the vocational rehabilitation notes documenting [Plaintiff’s] ability 12 to learn, follow routines, get along with others, and complete normal workdays in 13 actual jobs.” Tr. 30. As an initial matter, as noted by Plaintiff, it is unclear as to 14 how Dr. Duris’s lack of access to Plaintiff’s vocational rehabilitation records from 15 outside the relevant adjudicatory period impacts his ability to render a medical 16 opinion as to his ability to sustain basic work activities. ECF No. 14 at 8. That 17 said, an ALJ may discount an opinion that is inconsistent with a claimant’s 18 reported functioning. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 19 601-02 (9th Cir. 1999); see also Orn, 495 F.3d at 631 (the consistency of a medical 20 opinion with the record as a whole is a relevant factor in evaluating that medical 21 opinion). In support of this reasoning, in an earlier part of the decision, the ALJ ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-12 1 cited a September 2010 report from Plaintiff’s manager that he is a “good worker 2 and learned the routine”; a February 2010 report from a different employer that he 3 was “doing very well”; and Plaintiff’s report in September 2011 that yet another 4 employer was “pleased with his work attitude and initiative” and the employer 5 would consider re-hiring him for seasonal work the next year. Tr. 29 (citing Tr. 6 480, 493, 495, 505). Based solely on this evidence, Defendant contends that the 7 ALJ properly rejected Dr. Duris’s opinion as inconsistent with Plaintiff’s ability to 8 perform “simple work.” ECF No. 18 at 5-6. 9 However, the Court’s review of the record confirms that Plaintiff was not re- 10 hired at the seasonal job after 2011. Moreover, despite initial positive feedback in 11 February and September 2010, Plaintiff was ultimately “let go” from one job a 12 month after he started for being too slow and misplacing items, and Plaintiff 13 himself refused to return to the other job, also a month after he started, after his 14 manager was “rude” and his hours were cut. Tr. 494, 501; see Lingenfelter v. 15 Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007) (“It does not follow from the fact that 16 a claimant tried to work for a short period of time and, because of his impairments, 17 failed, that he did not then experience . . . limitations severe enough to preclude 18 him from maintaining substantial gainful employment.”). As noted by Plaintiff, 19 after he quit a job in October 2010, vocational rehabilitation records note “if this is 20 the type of work performance and behavior [Plaintiff] is going to continue to 21 display it is going to be extremely difficult for [Plaintiff] to maintain a job.” ECF ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-13 1 No. 14 at 9 (citing Tr. 494). In addition, one prospective employer expressed 2 concerns about hiring Plaintiff because he was “not ready for the hard fast pace” of 3 dishwashing at a restaurant. Tr. 448. And another prospective employer indicated 4 that Plaintiff would not be a good fit for a job because he was “too slow and the 5 duties that would be assigned require a person to be fast and [employer] does not 6 feel that [Plaintiff] is up for that.” Tr. 437. Thus, the ALJ’s finding that Dr. 7 Duris’s opinion was “unreliable” due to his lack of access to these vocational 8 rehabilitation records, and any inference of alleged inconsistency between 9 Plaintiff’s work activities and Dr. Duris’s opinion, is not a specific and legitimate 10 reason to reject Dr. Duris’s opinion. 11 Third, and finally, the ALJ generally notes that “Dr. Duris did not explain or 12 otherwise provide supporting discussion for the basis of the ratings provided.” Tr. 13 30. An ALJ may permissibly reject check box reports that do not contain any 14 explanation of the bases for their conclusions. Crane v. Shalala, 76 F.3d 251, 253 15 (9th Cir. 1996); see also See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 16 1228 (9th Cir. 2009)(“the ALJ need not accept the opinion of any physician, 17 including a treating physician, if that opinion is brief, conclusory and inadequately 18 supported by clinical findings.”). However, as discussed in detail above, Dr. Duris 19 performed extensive cognitive testing, and “explained how low [Plaintiff’s] scores 20 were and what level of difficulty these scores represented.” ECF No. 14 at 9. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-14 1 Thus, this was not a specific and legitimate reason, supported by substantial 2 evidence, to grant Dr. Duris’s opinion little weight. 3 For all of these reasons, the ALJ did not properly consider Dr. Duris’s 4 opinion, and it must be reconsidered on remand. 2. Additional Opinions 1 5 6 In May 2014, Dana Harmon, Ph.D. reviewed Dr. Duris’s opinion, and found 7 his diagnoses, and assessed functional limitations, were supported by the medical 8 evidence, including records that “describe [Plaintiff’s] intellectual disability 9 (mental retardation), as evidenced by confusion, poor comprehension, difficulties 10 with social functioning, and ‘extremely low’ scores on the WAIS and WMS.” Tr. 11 348. The ALJ found Dr. Harmon’s opinion was “unhelpful” and granted it little 12 13 1 Plaintiff argues the ALJ erred by failing to weigh the opinion of Arch Bradley, 14 M.Ed., who completed a psychological evaluation of Plaintiff in 2009. ECF No.14 15 at 10 (citing Tr. 404-08). However, the ALJ specifically noted that opinions 16 significantly predating the relevant period would not be considered, because they 17 are not material to the case. Tr. 29 n.1. As noted by Defendant, “[m]edical 18 opinions that predate the alleged onset date of disability are of limited relevance.” 19 Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). 20 Thus, while the medical evidence as a whole should be considered upon remand, 21 the Court finds the ALJ did not err in failing to consider Mr. Bradley’s opinion. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-15 1 weight because it “relied heavily on Dr. Duris’ opinion, meaning that the same 2 reasons underscoring [the ALJ’s] assessment of Dr. Duris’s evaluation apply 3 equally to Dr. Harmon.” Tr. 29-30. However, as discussed above, the ALJ erred 4 in considering Dr. Duris’s opinion; thus, relying on the same improper reasoning 5 was not a specific and legitimate reason to reject Dr. Harmon’s opinion. The Court 6 notes that the ALJ additionally found “there was no opinion given [by Dr. 7 Harmon] about [Plaintiff’s] specific function capacity.” Tr. 30. Plaintiff argues 8 Dr. Harmon “did not have to give an opinion about specific functional capacities 9 [because he] was a reviewing physician who was supposed to review the evidence 10 for a finding of disability.” Tr. 348. However, where a physician's report did not 11 assign any specific limitations or opinions in relation to an ability to work, “the 12 ALJ did not need to provide 'clear and convincing reasons' for rejecting [the] report 13 because the ALJ did not reject any of [the report's] conclusions.” See Turner v. 14 Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010). 15 Similarly, in June 2015, Darin Principe, ARNP, submitted a two-sentence 16 letter that did not assign any specific limitations, but rather noted that Plaintiff “has 17 a history of developmental and social delays that have prevented him from 18 maintaining regular employment.” Tr. 514. The ALJ found this opinion was 19 entitled to no weight because legal conclusions about disability are reserved for the 20 Commissioner. Tr. 29-30. However, the Court is unclear as to whether Mr. 21 Principe’s letter addressed Plaintiff’s ability to work going forward, or was limited ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-16 1 to Plaintiff’s ability to maintain employment historically. Regardless, in light of 2 the need to reconsider Dr. Duris’s opinion, the ALJ should reexamine all of the 3 medical evidence upon remand, including opinion evidence deemed relevant. 4 5 B. Additional Assignments of Error Plaintiff also challenges the ALJ's consideration of Plaintiff's symptom 6 claims and lay witness statements; and the ALJ's conclusions at step three and step 7 five. ECF No. 14 at 11-16. Because the analysis of these questions is dependent 8 on the ALJ's evaluation of the medical evidence, which the ALJ is instructed to 9 reconsider on remand, the Court declines to address these challenges here. On 10 remand, the ALJ is instructed to conduct a new sequential analysis after 11 reconsidering the medical opinion evidence. 12 REMEDY 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 16 where “no useful purpose would be served by further administrative proceedings, 17 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 18 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 19 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 20 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 21 district court may abuse its discretion not to remand for benefits when all of these ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-17 1 conditions are met). This policy is based on the “need to expedite disability 2 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 3 must be resolved before a determination can be made, and it is not clear from the 4 record that the ALJ would be required to find a claimant disabled if all the 5 evidence were properly evaluated, remand is appropriate. See Benecke v. 6 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 7 1179-80 (9th Cir. 2000). 8 Although Plaintiff requests a remand with a direction to award benefits, ECF 9 No. 14 at 16, the Court finds that further administrative proceedings are 10 appropriate. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 11 (9th Cir. 2014) (remand for benefits is not appropriate when further administrative 12 proceedings would serve a useful purpose). Here, the overall medical record is 13 minimal; and the ALJ rejected all of the medical opinion evidence, which calls into 14 question whether the ALJ’s step three finding, and the assessed RFC, is supported 15 by substantial evidence. “Where,” as here, “there is conflicting evidence, and not 16 all essential factual issues have been resolved, a remand for an award of benefits is 17 inappropriate.” Treichler, 775 F.3d at 1101. Instead, the Court remands this case 18 for further proceedings. On remand, the ALJ must reconsider the medical opinion 19 evidence, and provide legally sufficient reasons for evaluating these opinions, 20 supported by substantial evidence. If necessary, the ALJ should order additional 21 consultative examinations and, if appropriate, take additional testimony from ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-18 1 medical experts. The ALJ should reconsider the credibility analysis, the step three 2 findings, and lay witness testimony. Finally, the ALJ should reassess Plaintiff's 3 RFC and, if necessary, take additional testimony from a vocational expert which 4 includes all of the limitations credited by the ALJ. 5 ACCORDINGLY, IT IS HEREBY ORDERED: 6 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 7 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 8 The District Court Executive is hereby directed to enter this Order and 9 provide copies to counsel, enter judgment in favor of the Plaintiff, and CLOSE the 10 file. 11 12 13 DATED October 15, 2018. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 14 15 16 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT-19
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