Layman v. O'Malley, No. 1:2023cv03078 - Document 13 (E.D. Wash. 2024)

Court Description: ORDER GRANTING 9 PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER; denying 11 Defendant's motion to affirm. The Commissioner's final decision is REVERSED and this case is REMANDED for further proceedings under sentence four of 42 U.S.C. § 405(g). This file is CLOSED. Signed by Senior Judge Wm. Fremming Nielsen. (TNC, Case Administrator)

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Layman v. O&#039;Malley Doc. 13 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 26, 2024 2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 BRANDY L., 6 No. Plaintiff, 7 ORDER GRANTING PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER -vs- 8 1:23-CV-3078-WFN MARTIN O'MALLEY, Commissioner of Social Security, 1 9 10 Defendant. 11 12 Pending before the Court are Plaintiff's Opening Brief and the Commissioner's Brief 13 in response. ECF Nos. 9, 11. Attorney D. James Tree represents Brandy L. (Plaintiff); 14 Special Assistant United States Attorney Frederick Fripps represents the Commissioner of 15 Social Security (Defendant). After reviewing the administrative record and the briefs filed 16 by the parties, the Court GRANTS Plaintiff's motion to reverse the decision of the 17 Commissioner, DENIES Defendant's motion to affirm, and REMANDS the matter for 18 further proceedings under sentence four of 42 U.S.C. § 405(g). JURISDICTION 19 20 Plaintiff filed applications for benefits on March 14, 2019, alleging disability since 21 September 1, 2018. The applications were denied initially and upon reconsideration. 22 Administrative Law Judge (ALJ) Roxanne Fuller held a hearing on October 5, 2020, and 23 issued an unfavorable decision on November 20, 2020. 24 the matter on August 12, 2021. ALJ Lynn Ginsberg held a second hearing on February 17, The Appeals Council remanded 25 26 1 27 Commissioner of Social Security. Martin O'Malley is substituted as the defendant because 28 he is now the Commissioner of Social Security. See Fed. R. Civ. P. 25(d). This action was originally filed against Kilolo Kijakazi in her capacity as the acting ORDER GRANTING PLAINTIFF'S MOTION - 1 Dockets.Justia.com 1 2022, and issued an unfavorable decision on April 4, 2022. Tr. 15-31. The Appeals Council 2 denied review on April 14, 2023. Tr. 1-6. Plaintiff appealed this final decision of the 3 Commissioner on June 8, 2023. ECF No. 1. 4 STANDARD OF REVIEW 5 The ALJ is responsible for determining credibility, resolving conflicts in medical 6 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 7 1995). The ALJ's determinations of law are reviewed de novo, with deference to a 8 reasonable interpretation of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 9 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by 10 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 11 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less 12 than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 13 evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson 14 v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 15 197, 229 (1938)). If the evidence is susceptible to more than one rational interpretation, the 16 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098; Morgan 17 v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence 18 supports the administrative findings, or if conflicting evidence supports a finding of either 19 disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 20 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial 21 evidence will be set aside if the proper legal standards were not applied in weighing the 22 evidence and making the decision. Brawner v. Sec'y of Health and Human Services, 839 23 F.2d 432, 433 (9th Cir. 1988). 24 SEQUENTIAL EVALUATION PROCESS 25 The Commissioner has established a five-step sequential evaluation process for 26 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); Bowen v. 27 Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the claimant bears the 28 burden of establishing a prima facie case of disability. Tackett, 180 F.3d at 1098-1099. This ORDER GRANTING PLAINTIFF'S MOTION - 2 1 burden is met once a claimant establishes that a physical or mental impairment prevents the 2 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 3 If a claimant cannot perform past relevant work, the ALJ proceeds to step five, and the 4 burden shifts to the Commissioner to show (1) the claimant can make an adjustment to other 5 work and (2) the claimant can perform other work that exists in significant numbers in the 6 national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot 7 make an adjustment to other work in the national economy, the claimant will be found 8 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 9 10 11 12 13 ADMINISTRATIVE FINDINGS On April 4, 2022, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. Tr. 15-31. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 12, 2019, the application date. Tr. 18. 14 At step two, the ALJ determined Plaintiff had the following severe impairments: 15 major depression; anxiety; post- traumatic stress disorder (PTSD); rule out borderline 16 intellectual functioning; attention- deficit/hyperactivity disorder (ADHD); intermittent 17 explosive disorder; headaches; chronic pelvic pain with endometriosis and bowel adhesions; 18 and bilateral hand pain. Tr. 18. 19 20 21 22 At step three, the ALJ found these impairments did not meet or equal the requirements of a listed impairment. Tr. 19. The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and determined Plaintiff could perform light work subject to the following limitations: 23 She can lift and/or carry up to twenty pounds occasionally and ten pound 24 frequently; can stand and/or walk about six hours and sit about six hours in an 25 eight-hour workday with normal breaks; never climb ladders, ropes, or scaffolds; 26 frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; no use 27 of moving hazardous machinery; no exposure to unprotected heights; can 28 understand, remember, and carry out instructions that can be learned in up to and ORDER GRANTING PLAINTIFF'S MOTION - 3 1 including 30 days of on the job training; can keep pace sufficient to complete tasks 2 and meet quotas typically found in unskilled work, but cannot perform highly time 3 pressured tasks and is limited to generally goal-oriented work and not work with 4 strict production quotas; can have occasional interaction with supervisors; can 5 work in proximity with co-workers but not in a cooperative or team effort; 6 requires a work environment that has no more than superficial interaction with 7 coworkers; requires a work environment that is predictable with only occasional 8 changes in the work setting; and should have no public interaction. 9 Tr. 21. 10 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 30. 11 At step five, the ALJ found there are jobs that exist in significant numbers in the 12 national economy that Plaintiff can perform. Tr. 30-31. The ALJ thus concluded Plaintiff has not been disabled since the application date. 13 14 Tr. 31. 15 ISSUES The question presented is whether substantial evidence supports the ALJ's decision 16 17 denying benefits and, if so, whether that decision is based on proper legal standards. 18 Plaintiff raises the following issues for review: (A) whether the ALJ properly 19 evaluated the medical opinion evidence; and (B) whether the ALJ properly evaluated 20 Plaintiff's subjective complaints. ECF No. 9 at 2. 21 22 DISCUSSION A. Medical Opinions 23 Under regulations applicable to this case, the ALJ is required to articulate the 24 persuasiveness of each medical opinion, specifically with respect to whether the opinions 25 are supported and consistent with the record. 20 C.F.R. § 416.920c(a)-(c). An ALJ's 26 consistency and supportability findings must be supported by substantial evidence. See 27 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Plaintiff argues the ALJ misevaluated 28 four sets of medical opinions. ECF No. 9 at 14-21. The Court addresses each in turn. ORDER GRANTING PLAINTIFF'S MOTION - 4 1 1. Donna Lopaze, LMHC. 2 LMHC Layman, Plaintiff's treating therapist, prepared three medical source 3 statements. In the first, dated August 14, 2018, she opined Plaintiff would be limited to 4 working, looking for work, or preparing for work 1-10 hours per week. Tr. 672. In the 5 second, dated August 6, 2019, she endorsed the same limitation. Tr. 737. In the third, dated 6 December 21, 2021, she opined, among other things, Plaintiff had a series of severe and 7 marked functional limitations and, if attempting to sustain work, Plaintiff would be off task 8 21-30% of the time and would miss 3 days per month. Tr. 876-78. The ALJ found these 9 opinions not persuasive. Tr. 28. 10 The ALJ first discounted the opinion as inconsistent with Plaintiff's "largely 11 conservative and routine mental health treatment and lack of need for medication." Tr. 28. 12 These are not reasonable inconsistencies. Indeed, no mental health professional endorsed 13 additional psychiatric medication as a treatment option or suggested a more aggressive 14 treatment plan was warranted. See, e.g., Tr. 736 (LMHC Layman recommending continuing 15 "cognitive-behavioral therapy with a trauma focus"). The ALJ thus erred by discounting the 16 opinion on this ground. 17 The ALJ next discounted the opinions on the grounds Plaintiff "increase[d] her 18 socialization at times, including going to a friend's house and attending her children's 19 activities," and could "prepar[e] meals, driv[e] a car, go[] shopping, and successfully car[e] 20 for her two children." Tr. 28, 29. Plaintiff's activities, however, are neither inconsistent 21 with nor a valid reason to discount the opinions. See Diedrich v. Berryhill, 874 F.3d 22 634, 643 (9th Cir. 2017) ("House chores, cooking simple meals, self-grooming, paying 23 bills, writing checks, and caring for a cat in one's own home, as well as occasional 24 shopping outside the home, are not similar to typical work responsibilities."); Vertigan v. 25 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ("This court has repeatedly asserted that 26 the mere fact that a plaintiff has carried on certain daily activities, such as grocery 27 shopping, driving a car, or limited walking for exercise, does not in any way detract 28 from her credibility as to her overall disability. ORDER GRANTING PLAINTIFF'S MOTION - 5 One does not need to be ‘utterly 1 incapacitated' in order to be disabled.") (quoting Fair v. Bowen, 885 F.2d 597, 603 2 (9th Cir. 1989), superseded on other grounds by 20 C.F.R. § 404.1502(a)); Reddick v. 3 Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("Several courts, including this one, have 4 recognized that disability claimants should not be penalized for attempting to lead 5 normal lives in the face of their limitations."); Cooper v. Bowen, 815 F.2d 557, 561 (9th 6 Cir. 1987) (noting that a disability claimant need not "vegetate in a dark room" in order to 7 be deemed eligible for benefits). The ALJ thus erred by discounting the opinions on this 8 ground. 9 Third, the ALJ discounted the opinions as overly reliant on Plaintiff's self-report 10 of symptoms. Tr. 28. On this record, the ALJ erred by discounting the opinions on 11 this ground. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) ("The report of a 12 psychiatrist should not be rejected simply because of the relative imprecision of the 13 psychiatric methodology. 14 compared to evaluation in other medical fields. Diagnoses will always depend in part on 15 the patient's self-report, as well as on the clinician's observations of the patient. But 16 such is the nature of psychiatry. Thus, the rule allowing an ALJ to reject opinions based on 17 self-reports does not apply in the same manner to opinions regarding mental illness.") 18 (cleaned up); Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981) ("Courts have 19 recognized that a psychiatric impairment is not as readily amenable to substantiation by 20 objective laboratory testing as is a medical impairment and that consequently, the 21 diagnostic techniques employed in the field of psychiatry may be somewhat less tangible 22 than those in the field of medicine. In general, mental disorders cannot be ascertained and 23 verified as are most physical illnesses, for the mind cannot be probed by mechanical devises 24 in order to obtain objective clinical manifestations of mental illness."). The record indicates 25 the opinions were based on clinical observations and does not indicate LMHC Lopaze 26 found Plaintiff to be untruthful. Therefore, this is no evidentiary basis for rejecting her 27 opinions. Cf. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1199–200 (9th Cir. 2008) 28 (noting an ALJ does not validly reject a clinician's opinion "by questioning the credibility ORDER GRANTING PLAINTIFF'S MOTION - 6 Psychiatric evaluations may appear subjective, especially 1 of the patient's complaints where the doctor does not discredit those complaints and supports 2 his ultimate opinion with his own observations"). The ALJ thus erred by discounting the 3 opinions on this ground. 4 Fourth, the ALJ discounted the opinions as lacking "sufficient work-related functional 5 limitations, supporting objective medical evidence and examination findings, and analysis 6 and explanation." Tr. 28-29. This finding is both belied by the record and contrary to well- 7 settled law, for three reasons. First, LMHC Lopaze's December 2021 medical source 8 statement addresses the very functional limitations considered by Defendant's consultative 9 and reviewing doctors. Compare, e.g., Tr. 878, with Tr. 716-17, and Tr. 214. Second, as 10 discussed above, the lack of objective medical evidence concerning mental health 11 impairments is not a reasonable ground on which to discount mental health-related opinions. 12 See, e.g., Buck, 869 F.3d at 1049; Lebus, 526 F. Supp. at 60. And third, the opinions "did 13 not stand alone[.]" Garrison v. Colvin, 759 F.3d 995, 1014 n17 (9th Cir. 2014). Rather, the 14 opinions were supported by years of treatment notes. See, e.g., Tr. 759, 764, 893, 900. The 15 ALJ thus erred by discounting the opinions on this ground. 16 Fifth, the ALJ discounted the opinions as inconsistent with unelaborated medical 17 evidence in the record "showing largely unremarkable examination findings, including, 18 being alert and oriented, having an appropriate mood and affect, being cooperative, and 19 being attentive." Tr. 29. In support, the ALJ cites medical records relating to Plaintiff's 20 physical impairments and a consultative clinical examination. These are not reasonable 21 inconsistencies. The medical records relating to Plaintiff's physical impairments neither 22 undermine nor are reasonably related to LMHC Lopaze's assessment of Plaintiff's mental 23 health impairments. 24 conducted in a close and sterile setting with a psychiatric professional – is not reasonably 25 inconsistent with LMHC Lopaze's opined limitations concerning Plaintiff's ability to, among 26 other things, remain on task and maintain attendance. Cf. Reddick, 157 F.3d at 725 (rather 27 than merely stating their conclusions, ALJs "must set forth [their] own interpretations 28 and explain why they, rather than the doctors', are correct") (citing Embrey v. Bowen, Further, Plaintiff's performance during the clinical interview – ORDER GRANTING PLAINTIFF'S MOTION - 7 1 849 F.2d 418, 421-22 (9th Cir. 1988)). The ALJ thus erred by discounting the opinions on 2 this ground. 3 Finally, the ALJ discounted the opinion as internally inconsistent, reasoning as 4 follows: "Ms. Lopaze notes that the claimant would need training and support for a 5 successful job placement, but also assesses her with extreme limitations in adapting or 6 managing herself, that she would be off task 21% - 30%, and would miss three days of work 7 per month." Tr. 29. Contrary to the ALJ's finding, however, these assessments are neither 8 incongruous nor mutually exclusive: LMHC Lopaze opined training and support could help 9 Plaintiff, facing these limitations, reach her goal of a "successful job placement." Because 10 the ALJ relied on an unreasonable inconsistency, the ALJ erred by discounting the opinions 11 on this ground. Cf. Reddick, 157 F.3d at 722-23. (reversing ALJ's decision where its 12 "paraphrasing of record material is not entirely accurate regarding the content or tone of the 13 record"). 14 The ALJ accordingly erred by discounting these opinions. 15 2. Thomas Genthe, Ph.D. 16 Dr. Genthe examined Plaintiff twice, conducting clinical interviews and performing 17 mental status examinations. Tr. 737-44, 828-835. On September 9, 2019, Dr. Genthe 18 opined, among other things, Plaintiff was severely limited in communicating and performing 19 effectively in a work setting, maintaining appropriate behavior in a work setting, and 20 completing a normal workday and workweek without interruptions from psychologically 21 based symptoms. Tr. 741. On December 29, 2020, Dr. Genthe endorsed these same 22 limitations and assessed as "severe" the overall severity level of Plaintiff's mental 23 impairments. Tr. 832. The ALJ found these opinions "generally not persuasive." Tr. 29. 24 The ALJ first discounted the opinions on the ground Dr. Genthe performed "one-time 25 examinations." Tr. 29. This ground is legally erroneous, as the Commissioner's regulations 26 expressly allow for the evaluation of examining sources' opinions. See 20 C.F.R. § 27 404.1520c(3)(v) ("Examining relationship. 28 understanding of your impairment(s) if he or she examines you than if the medical source ORDER GRANTING PLAINTIFF'S MOTION - 8 A medical source may have a better 1 only reviews evidence in your folder."). The ALJ thus erred by discounting the opinions on 2 this ground. 3 The ALJ next discounted the opinions as inconsistent with Plaintiff's ability to, on 4 examination, be "oriented, cooperative, attentive, [and] ha[ve] normal speech and thought 5 processes and content, mild concentration issues, and some memory limitations." Tr. 29. 6 These are not reasonable inconsistencies. 7 interview – conducted in a close and sterile setting with a psychiatric professional – is not 8 reasonably inconsistent with the doctor's opined limitations concerning Plaintiff's ability to, 9 among other things, complete a normal workday and workweek without interruptions from 10 Plaintiff's performance during the clinical psychologically based symptoms. 11 The ALJ also discounted the opinions on identical grounds used to discount the 12 opinions of LMHC Lopaze: "His findings are also not consistent with the evidence in the 13 record, including the claimant's largely conservative and routine treatment, improvement 14 with treatment, lack of need for psychiatric medication, normal to mild examination findings 15 as discussed above, and her activities of daily living, including, caring for her children, 16 performance of personal care, household chores, preparing meals, driving a car, and 17 shopping." Tr. 29-30. For the reasons discussed above, the ALJ erred by discounting these 18 opinions on those grounds. 19 3. Karen Mansfield-Blair, Ph.D. 20 Dr. Mansfield-Blair examined Plaintiff on June 22, 2019, conducting a clinical 21 interview and performing a mental status examination. Tr. 711-17. Dr. Mansfield-Blair 22 opined, among other things, Plaintiff "would not have difficulty maintaining regular 23 attendance and completing a normal workday/work week without interruptions from a 24 psychiatric condition[.]" Tr. 717. The ALJ found this opinion "generally persuasive." Tr. 25 28. The ALJ credited Dr. Mansfield-Blair's opinion as consistent with the same evidence 26 she found inconsistent with the opinions of LMHC Lopaze and Dr. Genthe. Because the 27 ALJ erred by discounting the opinions on LMHC Lopaze and Dr. Genthe, the ALJ must 28 reassess Dr. Mansfield-Blair's opinion on remand. ORDER GRANTING PLAINTIFF'S MOTION - 9 1 4. DDS Consultants. 2 Plaintiff contends the ALJ erroneously found these opinions the most persuasive. 3 ECF No. 9 at 21. Although the ALJ was not required to provide reasons in support of 4 incorporating a medical opinion into the residual functional capacity determination, see 5 Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010), because the 6 ALJ erred by discounting the opinions of LMHC Lopaze and Dr. Genthe, as discussed 7 above, the ALJ must also reassess these opinions anew on remand. 8 B. Subjective Complaints 9 Plaintiff contends the ALJ erred by not properly assessing Plaintiff's symptom 10 complaints. ECF No. 9 at 3-14. Where, as here, the ALJ determines a claimant has 11 presented objective medical evidence establishing underlying impairments that could cause 12 the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only 13 discount the claimant's testimony as to symptom severity by providing "specific, clear, and 14 convincing" reasons supported by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 15 678 (9th Cir. 2017). The Court concludes the ALJ failed to offer clear and convincing 16 reasons to discount Plaintiff's testimony. 17 The ALJ first discounted Plaintiff's testimony as inconsistent with the medical 18 evidence, including Plaintiff's course of treatment. Tr. 23-26. However, because the ALJ 19 erred by discounting the opinions of LMHC Lopaze and Dr. Genthe, and necessarily failed 20 to properly evaluate the medical evidence, as discussed above, this is not a valid ground to 21 discount Plaintiff's testimony. 22 The ALJ also discounted Plaintiff's testimony as inconsistent with her activities, 23 noting, among other minimal activities, Plaintiff was "able to prepare her own meals and 24 feed herself" and "care for her hygiene needs." Tr. 23. As discussed in the context of LMHC 25 Lopaze's opinion, Plaintiff's minimal activities neither "meet the threshold for transferable 26 work skills," Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603), 27 nor sufficiently undermine Plaintiff's allegations, see Diedrich, 874 F.3d at 643; Reddick, 28 157 F.3d at 722. The ALJ thus erred by discounting Plaintiff's testimony on this ground. ORDER GRANTING PLAINTIFF'S MOTION - 10 1 The ALJ accordingly erred by discounting Plaintiff's testimony. 2 CONCLUSION 3 Having reviewed the record and the ALJ's findings, the Commissioner's final decision 4 is REVERSED and this case is REMANDED for further proceedings under sentence four 5 of 42 U.S.C. § 405(g). On remand, the ALJ shall reevaluate the medical opinions addressed 6 herein, reassess Plaintiff's testimony, redetermine the RFC as needed, and proceed to the 7 remaining steps as appropriate. Accordingly, 8 IT IS ORDERED that: 9 1. Plaintiff's motion to reverse, filed September 6, 2023, ECF No. 9, is GRANTED. 10 2. Defendant's motion to affirm, filed October 13, 2023, ECF No. 11, is DENIED. 11 The District Court Executive is directed to file this Order and provide a copy to 12 counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall 13 be CLOSED. DATED this 26th day of March, 2024. 14 15 16 17 03-07-24 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF'S MOTION - 11 WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE

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