Smith v. Kijakazi, No. 4:2021cv05104 - Document 18 (E.D. Wash. 2022)
Court Description: ORDER GRANTING 12 PLAINTIFF'S SUMMARY-JUDGMENT MOTION, DENYING 13 DEFENDANT'S SUMMARY-JUDGMENT MOTION, AND REMANDING FOR FURTHER PROCEEDINGS. This file is CLOSED. Signed by Senior Judge Edward F. Shea. (LTR, Case Administrator)
Download PDF
<![CDATA[
Smith v. Kijakazi Doc. 18 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 1 PageID.1447 Page 1 of 26 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Sep 28, 2022 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 LAWRENCE S.,1 8 4:21-cv-5104-EFS Plaintiff, 9 10 No. v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, 11 ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S SUMMARY-JUDGMENT MOTION, AND REMANDING FOR FURTHER PROCEEDINGS Defendant. 12 13 14 Plaintiff Lawrence S. appeals the denial of benefits by the Administrative 15 Law Judge (ALJ). Because the ALJ’s persuasiveness findings as to certain medical 16 opinions are not supported by substantial evidence, the Court holds that the ALJ 17 reversibly erred. This matter is remanded for further proceedings. 18 // 19 / 20 21 1 For privacy reasons, the Court refers to Plaintiff by first name and last initial or 22 as “Plaintiff.” See LCivR 5.2(c). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com Case 4:21-cv-05104-EFS I. 1 ECF No. 18 filed 09/28/22 PageID.1448 Page 2 of 26 Five-Step Disability Determination A five-step evaluation determines whether an adult claimant is disabled.2 2 3 Step one assesses whether the claimant is engaged in substantial gainful activity.3 4 If the claimant is engaged in substantial gainful activity, benefits are denied.4 If 5 not, the disability evaluation proceeds to step two.5 Step two assesses whether the claimant has a medically severe impairment 6 7 or combination of impairments that significantly limit the claimant’s physical or 8 mental ability to do basic work activities.6 If the claimant does not, benefits are 9 denied.7 If the claimant does, the disability evaluation proceeds to step three.8 10 Step three compares the claimant’s impairment or combination of 11 impairments to several recognized by the Commissioner as so severe as to preclude 12 substantial gainful activity.9 If an impairment or combination of impairments 13 14 15 2 20 C.F.R. §416.920(a). 3 Id. § 416.920(a)(4)(i). 4 Id. § 416.920(b). 5 Id. § 416.920(b). 6 Id. § 416.920(a)(4)(ii). 7 Id. § 416.920(c). 8 Id. § 416.920(c). 9 Id. § 416.920(a)(4)(iii). 16 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 2 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1449 Page 3 of 26 1 meets or equals one of the listed impairments, the claimant is conclusively 2 presumed to be disabled.10 If not, the disability evaluation proceeds to step four. Step four assesses whether an impairment prevents the claimant from 3 4 performing work he performed in the past by determining the claimant’s residual 5 functional capacity (RFC).11 If the claimant can perform past work, benefits are 6 denied.12 If not, the disability evaluation proceeds to step five. Step five, the final step, assesses whether the claimant can perform other 7 8 substantial gainful work—work that exists in significant numbers in the national 9 economy—considering the claimant’s RFC, age, education, and work experience.13 10 If so, benefits are denied. If not, benefits are granted.14 The claimant has the initial burden of establishing he is entitled to disability 11 12 benefits under steps one through four.15 At step five, the burden shifts to the 13 Commissioner to show the claimant is not entitled to benefits.16 14 15 10 20 C.F.R. § 416.920(d). 11 Id. § 416.920(a)(4)(iv). 12 Id. § 416.920(a)(4)(iv). 13 20 C.F.R. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497–98 (9th Cir. 16 17 18 19 1984). 20 14 20 C.F.R. § 416.920(g). 15 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 16 Id. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 Case 4:21-cv-05104-EFS II. 1 ECF No. 18 filed 09/28/22 PageID.1450 Page 4 of 26 Factual and Procedural Summary In February 2019, Plaintiff filed a Title 16 application alleging disability 2 3 beginning January 1, 2019.17 His claim was denied initially and on 4 reconsideration. In November 2020, ALJ Jesse K. Shumway held an 5 administrative hearing at which he received testimony from Plaintiff and a 6 vocational expert. After the hearing, the ALJ issued a decision denying Plaintiff’s 7 disability application and finding: 8 Step one: Plaintiff had not engaged in substantial gainful activity since February 25, 2019, the application date. 9 10 Step two: Plaintiff had the following medically determinable severe 11 impairments: degenerative disc disease of the cervical and lumbar spine; 12 right ankle sprain, status post repair; headaches; specific learning 13 disorder with impairment in reading; mood disorder; intermittent 14 explosive disorder; attention deficit hyperactivity disorder (ADHD); and 15 panic disorder. 16 Step three: Plaintiff did not have an impairment or combination of 17 impairments that met or medically equaled the severity of one of the 18 listed impairments. 19 RFC: Plaintiff had the RFC perform a full range of sedentary work, subject to the following additional limitations: 20 21 22 17 AR 234. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1451 Page 5 of 26 o he can only occasionally operate foot controls with the right lower 1 extremity; 2 3 o he can never climb ladders, ropes, or scaffolds; 4 o he can never crouch or crawl; 5 o he can occasionally perform all other postural activities; 6 o he can occasionally reach overhead; 7 o he can have no exposure to hazards (e.g., unprotected heights and moving mechanical parts); 8 o he can have no more than occasional exposure to extreme cold and 9 vibration; 10 11 o he is limited to simple, routine tasks; 12 o he can have only occasional, superficial contact with the public, supervisors, and coworkers; and 13 o he requires a routine, predictable work environment with no more 14 than occasional changes. 15 16 Step four: Plaintiff was not capable of performing past relevant work. 17 Step five: Considering Plaintiff’s RFC, age, education, and work history, 18 Plaintiff could perform work that existed in significant numbers in the 19 national economy, such as “Document Preparer,” “Polisher, Eyeglass 20 Frames,” and “Table Worker.” As an alternative finding, the ALJ further 21 found that Plaintiff could still perform these jobs even if further limited 22 “working in a moderate noise environment; needed the option to wear eye 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1452 Page 6 of 26 1 protection if exposed to bright lights; and was likely to miss one day of 2 work per month).”18 3 In reaching his decision, the ALJ found: 4 Largely persuasive the October 2019 reviewing opinions of State agency medical consultant Guillermo Rubio, MD, and Norman Staley, MD.19 5 6 Generally persuasive the October 2019 reviewing opinions of State 7 agency psychological consultants Vincent Gollogly, PhD, and Kent Reade, 8 PhD.20 9 Somewhat persuasive the October 2018 opinions of treating physician Brent Thielges, DPM.21 10 11 Somewhat persuasive the September 2019 opinions provided in a consultative psychological evaluation by Ioly Lewis, ARNP.22 12 13 Not persuasive the August 2020 opinions provided on a medical report form by treating physician Ralph Laraiso, DO.23 14 15 16 17 18 AR 29. 19 AR 25. 20 AR 25–26. 21 AR 26. 22 AR 26–27. 23 AR 27. 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 Case 4:21-cv-05104-EFS 1 ECF No. 18 filed 09/28/22 PageID.1453 Page 7 of 26 Not persuasive the August 2020 opinions provided on a medical report form by Angela Hamela, ARNP, PMHNP.24 2 The ALJ also found Plaintiff’s medically determinable impairments could 3 4 reasonably be expected to cause some of the alleged symptoms, but his statements 5 concerning the intensity, persistence, and limiting effects of those symptoms were 6 “not entirely consistent with the medical evidence and other evidence in the record 7 for the reasons explained in this decision.”25 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 8 9 which denied review.26 Plaintiff then appealed to this Court. III. 10 Standard of Review A district court’s review of the Commissioner’s final decision is limited.27 11 12 The Commissioner’s decision is set aside “only if it is not supported by substantial 13 evidence or is based on legal error.”28 Substantial evidence is “more than a mere 14 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 15 16 17 18 24 AR 27. 25 AR 21. 26 AR 1. 27 42 U.S.C. § 405(g). 28 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1454 Page 8 of 26 1 mind might accept as adequate to support a conclusion.”29 Moreover, because it is 2 the role of the ALJ—and not the Court—to weigh conflicting evidence, the Court 3 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 4 from the record.”30 The Court considers the entire record.31 Further, the Court may not reverse an ALJ decision due to a harmless 5 6 error.32 An error is harmless “where it is inconsequential to the ultimate 7 nondisability determination.”33 8 /// 9 // 10 / 11 12 29 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 13 1997)). 14 30 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 31 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 15 16 consider the entire record as a whole, weighing both the evidence that supports and 17 the evidence that detracts from the Commissioner's conclusion,” not simply the 18 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 19 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does not indicate that 20 such evidence was not considered[.]”). 21 32 Molina, 674 F.3d at 1111. 33 Id. at 1115 (cleaned up). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 Case 4:21-cv-05104-EFS ECF No. 18 IV. 1 filed 09/28/22 PageID.1455 Page 9 of 26 Analysis Plaintiff argues that the ALJ erred by (1) not properly assessing certain 2 3 medical opinions, (2) improperly discounting Plaintiff’s symptom testimony, and 4 (3) failing to properly assess Plaintiff’s hand disorders.34 For the reasons that 5 follow, the Court holds that the ALJ reversibly erred by failing to properly 6 articulate its consideration of the medical-opinion evidence, and this matter is 7 therefore remanded for further proceedings. 8 A. Plaintiff challenges the ALJ’s assessment of the medical opinions provided 9 10 Medical Opinions: Plaintiff establishes consequential error. by Dr. Laraiso, ARNP Hamel, and ARNP Lewis.35 11 1. 12 An ALJ must consider and evaluate the persuasiveness of all medical 13 opinions or prior administrative medical findings.37 The factors for evaluating the Standard for Medical-Opinion Analysis36 14 15 34 See generally, ECF No. 12. 35 ECF No. 12 at 18–21. 36 For claims filed on or after March 27, 2017, such as Plaintiff’s claims, new 16 17 18 regulations apply that change the framework for how an ALJ must evaluate 19 medical opinion evidence. Revisions to Rules Regarding the Evaluation of Medical 20 Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. 21 § 416.920c. 22 37 20 C.F.R. § 416.920c(a), (b). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1456 Page 10 of 26 1 persuasiveness of medical opinions and prior administrative medical findings 2 include, but are not limited to, supportability, consistency, relationship with the 3 claimant, and specialization.38 Supportability and consistency are the most 4 important factors, and the ALJ is required to explain how both of these factors 5 were considered.39 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 6 7 8 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.40 9 10 11 12 Typically, the ALJ may, but is not required to, explain how the other factors were 13 considered.41 14 15 38 20 C.F.R. § 416.920c(c)(1)–(5). 39 Id. § 416.920c(b)(2). 40 Id. § 416.920c(c)(1)–(2). 41 Id. § 416.920c(b)(2). When two or more medical opinions or prior administrative 16 17 18 19 findings “about the same issue are both equally well-supported . . . and consistent 20 with the record . . . but are not exactly the same,” the ALJ is required to explain 21 how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were 22 considered. Id. § 416.920c(b)(3). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1457 Page 11 of 26 1 2. 2 In finding Dr. Laraiso’s August 2020 medical report not persuasive, the ALJ 3 Dr. Laraiso: The ALJ failed to address the consistency factor. gave the following summary and analysis: In this form, Dr. Laraiso opined that the claimant would have to lie down during the day; that the claimant was most likely at risk for further injury with work on a regular and continuing basis; and that the claimant would miss three days of work on average per month because of his medical impairments. Dr. Laraiso’s opinion was given in a check-box form and was not well supported with any meaningful explanation. For example, he provided no explanation for why the claimant would have to lie down during the day and did not specify how long he would need to lie down (therefore it is not even clear whether he felt the claimant’s need to lie down would exceed normal breaks). He provided no explanation for why the claimant would miss three days of work per month. Overall, his opinion is conclusory and vague and not probative as opinion evidence. Moreover, his opinion that the claimant would miss three days of work per month, particularly with no explanation in support, is appropriately understood as an opinion that the claimant cannot work at times, which opines on an issue that is reserved to the Commissioner. Therefore, this aspect of his opinion is inherently neither valuable nor persuasive.42 4 5 6 7 8 9 10 11 12 13 a. 14 The ALJ’s Errors as to Dr. Laraiso’s Opinions Some of the ALJ’s analysis includes valid considerations that, if supported 15 16 by substantial evidence in the record, could reasonably support his finding that 17 Dr. Laraiso’s medical opinions were unpersuasive. For instance, although 18 Dr. Laraiso’s entries in the medical-report form make clear that the limitations 19 opined therein stem from Plaintiff’s chronic low-back pain (potentially in 20 conjunction with noted medication side effects)—all of which appear consistent 21 22 42 AR 27 (cleaned up) (citing AR 1079–80). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1458 Page 12 of 26 1 with Dr. Laraiso’s treatment notes43—the ALJ is nonetheless correct that 2 Dr. Laraiso failed to articulate how long or how frequently Plaintiff would need to 3 lie down.44 However, as Plaintiff points out, “the ALJ did not give any articulation 4 as to the consistency of [Dr. Laraiso’s] medical opinion[s] with other opinions and 5 evidence in the record.”45 “Even under the new regulations, an ALJ cannot reject an examining or 6 7 treating doctor’s opinion as unsupported or inconsistent without providing an 8 explanation supported by substantial evidence.”46 The new regulations still 9 10 43 See AR 1080–81; see also, e.g., AR 1082–91 (08/04/2020: “Diagnoses of Chronic 11 low back pain without sciatica, unspecified back pain laterall[y], Spinal stenosis of 12 lumbar region, unspecified whether neurogenic claudication present, Encounter for 13 long-term use of opiate analgesic, Cervical radicular pain, Neck pain, Occipital 14 neuralgia, unspecified laterality, Paresthesias, Lumbar facet arthropathy, Facet 15 arthritis of cervical region, and DOD (degenerative disc disease), cervical were 16 pertinent to this visit.”). 17 44 “While an opinion cannot be rejected merely for being expressed as answers to a 18 check-the-box questionnaire, the ALJ may permissibly reject check-off reports that 19 do not contain any explanation of the bases of their conclusions.” Ford v. Saul, 950 20 F.3d 1141, 1155 (9th Cir. 2020) (cleaned up). 21 45 ECF No. 12 at 19. 46 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1459 Page 13 of 26 1 require the ALJ to consider the consistency of a medical opinion with evidence from 2 other medical sources.47 For this reason, the Court finds the ALJ’s analysis of 3 consistency regarding Dr. Laraiso’s opinions fails to comply with the new 4 regulations. Additionally, the Court notes that an ALJ may discount an opinion due to 5 6 vagueness if the opinion is not supported, but if the opinion is supported by 7 examination findings, then the ALJ has a duty to develop the record to clarify any 8 consequential ambiguities either contained in or caused by the opinion before 9 discounting it for vagueness.48 Moreover, Plaintiff’s likely rate of absenteeism and 10 need to lie down are not issues reserved for the Commissioner “but instead an 11 assessment, based on objective medical evidence, of [Plaintiff]’s likelihood of being 12 able to sustain full time employment given the many medical and mental 13 impairments [Plaintiff] faces.”49 14 15 47 See 20 C.F.R. § 416.920c(b)(2), (c)(2). 48 See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he 16 17 needed to know the basis of [the physician]’s opinions in order to evaluate them, he 18 had a duty to conduct an appropriate inquiry, for example, by subpoenaing the 19 physicians or submitting further questions to them.”). 20 49 See Hill, 698 F.3d at 1160; see also 20 C.F.R. § 416.913(a)(2) (A “medical opinion” 21 includes any statement regarding whether the claimant has one or more 22 impairment-related limitations in the ability to perform the demands of work 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 Case 4:21-cv-05104-EFS b. 1 ECF No. 18 filed 09/28/22 PageID.1460 Page 14 of 26 Conclusion as to Dr. Laraiso Because the ALJ failed to conduct the mandated analysis as to the 2 3 persuasiveness of Dr. Laraiso’s opinions, the ALJ’s finding is not supported by 4 substantial evidence. Had Dr. Laraiso’s opinions been fully incorporated into the 5 assessed RFC, the vocational expert’s testimony establishes Plaintiff would have 6 necessarily been found disabled.50 Further proceedings are required for the ALJ to 7 reevaluate Dr. Laraiso’s opinions and to expressly conduct the consistency analysis 8 as required by the applicable regulations. 9 3. 10 supporting evidence. 11 12 ARNP Hamel: The ALJ’s consistency finding lacks substantial In finding ARNP Hamel’s August 2020 opinions not persuasive, the ALJ gave the following summary and analysis: 13 This provider’s assessments (of mostly “markedly” or “severely” limited mental abilities and substantial time off task and days of work missed per month) are not well supported or consistent with the record as a whole. Ms. Hamel’s opinion was provided in checkbox form with no explanation in support. Moreover, her opinion is notably inconsistent with the record as a whole, which, as noted above, 14 15 16 17 18 19 activities.); id. § 416.913(a)(3) (“[O]ther medical evidence” includes prognoses and 20 “judgments about the nature and severity of [the claimant’s] impairments.”). 21 50 See AR 103 (testifying that an absence rate higher than one day per month 22 would preclude competitive employment). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1461 Page 15 of 26 reflects little mental health treatment and typically only mild reports of anxiety and depression in PHQ-9 and GAD-7 instruments.51 1 2 a. The ALJ’s Errors as to ARNP Hamel’s Opinions 3 Again, an ALJ may validly reject a medical opinion based on a lack of 4 support and inconsistency with other evidence.52 However, the sparse consistency 5 analysis provided in the ALJ’s decision is unsupported by substantial evidence. 6 The only inconsistency noted by the ALJ between ARNP Hamel’s opinions and 7 other evidence was that the record supposedly “reflects little mental health 8 treatment and typically only mild reports of anxiety and depression in PHQ-9 and 9 GAD-7 instruments.”53 In support of this assertion, the ALJ primarily cited to 10 several relatively recent instances in which Plaintiff’s PHQ-9 and GAD-7 results 11 were recorded as being mild to moderate. 12 When viewed as a whole, however, the record shows that from about March 13 2018 through October 2019, Plaintiff’s scores on the PHQ-9 depression scale 14 generally hovered around 16 (moderately severe) with a few spikes ranging from 20 15 16 17 18 19 51 AR 27 (citing AR 1237–38 (02/04/2020), 1248–49 (03/04/2020), 1265 (05/05/2020), 20 1282 (06/08/2020), 1294 (07/02/2020)). 21 52 See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). 53 AR 27. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1462 Page 16 of 26 1 to 23 (severe).54 During that same period, Plaintiff’s scores on the GAD-7 anxiety 2 scale had more variability, but were generally around a 13 (moderate) with several 3 spikes from 16 to 19 (severe).55 At the end of November 2019, Plaintiff scored 13 4 (moderate) on both scales.56 Then, from January 2020 through about August 2020, 5 Plaintiff had a series of low scores on both scales: 8 or below on the PHQ-9, and 9 6 or below on the CAD-7.57 When an ALJ relies upon example medical records to discount other 7 8 evidence, the records selected “must in fact constitute examples of a broader 9 development.”58 Here, after more than a year and a half of moderate and severe 10 PHQ-9 and GAD-7 results, the record shows mild results during only the last 7–8 11 months. For much of that time, Plaintiff was receiving treatment for depression, 12 anxiety, anger, and sleep issues.59 And, aside from potential improvement 13 14 54 See AR 619–622, 625, 643–647, 667, 705–09, 875–77, 965–69, 1006–07, 1098– 15 1103. 16 55 See id. 56 AR 1005–09. 57 See AR 1082–91, 1227, 1235–43, 1245–52, 1261–68, 1279–86, 1290–98. 58 Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014) 59 See, e.g., AR 619–622, 643–47, 667, 705–09, 875–77, 965–969, 986–990, 1005– 17 18 19 20 21 1009, 1098–1103 (collectively, treatment notes ranging from March 2018 through 22 January 2020). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1463 Page 17 of 26 1 resulting from treatment, it is commonly understood that the symptoms of 2 depressive and anxiety disorders may often wax and wane.60 Yet, the ALJ discussed neither the possibility of improvement or 3 4 waxing/waning symptoms and instead inaccurately pointed to Plaintiff’s latest and 5 lowest PHQ-9 and GAD-7 results as being “typical.” Without at least an 6 explanation as to why these latest exam results should carry more weight than all 7 the others—and why they do not reflect the waxing and waning common to such 8 mental impairments—the Court cannot find that substantial evidence supports the 9 ALJ’s findings and inferences drawn from Plaintiff’s PHQ-9 and GAD-7 scores.61 b. 10 Conclusion as to ARNP Hamel’s Opinions Given Plaintiff’s longitudinal treatment history, and the lack of a 11 12 meaningful explanation by the ALJ as to why the cited medical records warranted 13 greater weight than those omitted, the ALJ’s consistency analysis as to ARNP 14 Hamel’s opinions is not supported by substantial evidence. Further proceedings 15 are required for the ALJ to reevaluate ARNP Hamel’s opinions. 16 17 18 60 See Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating 19 symptoms are a common occurrence. . . .”). 20 61 Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (requiring the ALJ to 21 identify the evidence supporting the found conflict to permit the Court to 22 meaningfully review the ALJ’s finding). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1464 Page 18 of 26 1 4. ARNP Lewis: The ALJ erred in his analysis of the consistency factor. 2 The ALJ found “somewhat persuasive” the opinions contained in ARNP 3 Lewis’s September 2019 psychological evaluation of Plaintiff.62 The ALJ, in 4 relevant part, gave the following summary and analysis: She assessed his ability to interact with coworkers, superiors, and the public and his ability to adapt to the usual stresses encountered in the workplace as “poor” based on his interpersonal presentation. . . . However, the record as a whole indicates the claimant has been no more than moderately limited in any functional domain (to the extent Ms. Lewis’s assessment of “fair” abilities might indicate greater than moderate limitations), given his typically unremarkable mental presentation and his repeated PHQ-9 and GAD-7 scores indicating only mild levels of depression and anxiety. With respect to her assessment of “poor” abilities in interaction and adapting to stress, this is not consistent with the record as a whole. This was based on the claimant’s interpersonal presentation at that time. It is noted that the claimant presented as very irritable with fidgety psychomotor behavior. However, throughout the record the claimant has typically presented as pleasant and/or cooperative, indicating that Ms. Lewis’s one-time findings do not support her assessment of poor abilities.63 5 6 7 8 9 10 11 12 13 a. The ALJ’s Errors as to ARNP Lewis Opinions 14 As a preliminary matter, as discussed above, the ALJ’s assessment of 15 Plaintiff’s PHQ-9 and GAD-7 scores is unsupported by substantial evidence. 16 Further, at the point when ARNP Lewis conducted her psychological evaluation in 17 September 2019, Plaintiff’s scores in both categories had been consistently in the 18 moderate-to-severe range. Moreover, the ALJ did not explain why—even if those 19 20 21 62 AR 26–27; see 785–90. 63 AR 26–27 (cleaned up). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1465 Page 19 of 26 1 scores had indicated “only mild levels of depression and anxiety”—they would 2 undermine ARNP Lewis’s opinions as to Plaintiff’s irritability, his ability to adapt 3 to the usual stresses encountered in the workplace, or how he would be able to 4 interact with coworkers, supervisors, and/or the public.64 Because the Court is already remanding this case for further proceedings, it 5 6 need not determine whether substantial evidence supports the ALJ’s assertion that 7 “throughout the record the claimant has typically presented as pleasant and/or 8 cooperative,” nor whether this amounts to a rational reason to discount 9 ARNP Lewis’s opinions.65 The Court notes, however, that Plaintiff consistently 10 reported to his treatment providers problems with anger and irritability.66 Also, 11 the record contains numerous references to Plaintiff presenting as irritated, 12 anxious, depressed, distracted, and/or poorly groomed. Indeed, several such 13 references are found in the very records the ALJ cites to suggest that Plaintiff 14 tends to be pleasant or cooperative.67 And many of the other records cited by the 15 16 64 See AR 785–90. 65 AR 27. 66 See, e.g., AR 705–709, 785–90, 875–877, 965–69, 986–990. 67 See, e.g., AR 619–22 (05/14/2019: appearing “cooperative, disheveled, good eye 17 18 19 20 contact, tense, guarded”; mood was “anxious, irritable, dysphoric” with congruent 21 affect); AR 974–77 (08/15/2019: “Pleasant”; “Psychiatric/Behavioral: Positive for 22 agitation, confusion and decreased concentration. . . . The patient is 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1466 Page 20 of 26 1 ALJ were written by treatment providers seeing Plaintiff for issues unrelated to 2 mental health.68 b. 3 Conclusion as to ARNP Lewis’s Opinions The ALJ erred in his analysis of ARNP Lewis’s opinions. On remand, the 4 5 ALJ shall reassess ARNP Lewis’s opinions, specifically explaining how the 6 supportability and consistency factors affect persuasiveness. 7 B. Step Two: Reevaluation is warranted. Plaintiff further argues that the ALJ did not properly assess his carpal 8 9 tunnel syndrome and ulnar neuropathy. Because the Court is already remanding 10 for reevaluation of the medical opinions which, in turn, will require reevaluation of 11 the rest of the medical evidence, the Court finds a reevaluation of Plaintiff’s severe 12 medically determinable impairments is also warranted. As such, the Court need 13 not specifically address this argument by Plaintiff. 14 15 nervous/anxious.”); AR 1005–09 (11/26/2019: appearing “distracted with his phone 16 during most of the conversation . . . slightly irritated but is cooperative, grooming 17 is poor”; mood observed as “[l]ess angry but still irritable” with congruent affect). 18 68 See Orn, 495 F.3d at 634 (explaining that medical records must be read in their 19 treatment context); see also Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) 20 (finding the ALJ erred by rejecting the claimant’s symptoms resulting from 21 anxiety, depressive disorder, and PTSD on the basis that claimant performed 22 cognitively well during examination and had a generally pleasant demeanor). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1467 Page 21 of 26 “At the second step of sequential evaluation … medical evidence alone is 1 2 evaluated in order to assess the effects of the impairment(s) on ability to do basic 3 work activities.”69 On remand, therefore, the Court encourages the ALJ to 4 specifically address the medical evidence of record pertaining to Plaintiff’s carpal 5 tunnel syndrome in his left hand, with symptoms appearing to date back to April 6 2019.70 7 C. Plaintiff’s Symptom Reports: Reevaluation is warranted. 8 Plaintiff argues the ALJ failed to provide valid reasons for discounting his 9 symptom reports. Because the ALJ’s weighing of the medical evidence impacted 10 his weighing of Plaintiff’s symptom reports, the Court need not analyze this claim 11 of error. Still, as discussed above, without additional explanation, Plaintiff’s PHQ- 12 9 and CAD-7 scores do not amount to substantial evidence supporting the rejection 13 of Plaintiff’s mental-impairment symptom reports. On remand, if the ALJ discounts Plaintiff’s symptom testimony, the ALJ 14 15 must be specific about which testimony is being rejected and cite to specific 16 17 69 SSR 85-28 at *4; see 20 C.F.R. § 416.921. 70 See, e.g., AR 1271 (“Conduction studies demonstrate median nerve conduction 18 19 block at the wrist which is moderate to severe on the right and moderate on the 20 left.”); AR 628–31 (04/19/2019: “He reports numbness and tingling in all 10 digits of 21 both hands . . . .”). Cf. also AR 1312–13 (08/11/2020: showing carpal-tunnel release 22 surgery on Plaintiff’s right wrist only). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1468 Page 22 of 26 1 evidence to explain why each symptom is being rejected. The ALJ’s reasons for 2 rejecting the symptom testimony must be clear and convincing. Also, to provide 3 further guidance on remand, the Court briefly notes that: (1) chronic pain 4 frequently affects mental disorders,71 and providers have indicated this may be 5 true for Plaintiff;72 (2) although the tendency to exaggerate may be a valid reason 6 to discount symptom testimony,73 pain reports on a 1–10 scale are inherently 7 subjective and of limited value when assessing a claimant’s credibility;74 (3) ALJs 8 9 10 71 See Lester v. Chater, 81 F.3d 821, 829–30 (9th Cir. 1996) (noting that, for 11 claimant with chronic pain syndrome and affective disorder, the consequences of 12 the physical and mental impairments were inextricably linked and the 13 Commissioner “erred as a matter of law in isolating the effects of [the claimant’s] 14 physical impairment from the effects of his mental impairment”). 15 72 AR 700 (05/02/2018: noting, “Chronic pain likely contributing” to depression with 16 anxiety). 17 73 See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 74 See Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989) (warning against relying too 18 19 heavily on pain-scale reports, noting that a claimant’s ranking “is of only marginal 20 assistance to a decisionmaker whose own subjective one-to-ten scale may differ 21 significantly”); see also Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998) 22 (“Claimant periodically advised [his] doctors when [he] was feeling somewhat 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1469 Page 23 of 26 1 are required to address evidence of medication side effects,75 and the record 2 includes several indications of significant side effects and even suggests that 3 Plaintiff’s headaches may be caused, at least in part, by his prescribed 4 medications;76 and (4) as to his headaches, Plaintiff described two distinct kinds of 5 headaches/migraines, and he explained that his doctors would not continue with 6 the migraine treatments because they were ineffective.77 7 D. The ALJ’s errors discussed above require reversal. Remand for further 8 9 Conclusion: Remand is required. proceedings is necessary because Plaintiff’s disability is not clearly established by 10 11 12 better. This is unlikely behavior for a person intent on overstating the severity of 13 [his] ailments.”). 14 75 See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p, 2016 WL 1119029, at 15 *7. 16 76 See, e.g., AR 987, 979. 77 See AR 91–92. Absent more, it is unclear why Plaintiff should be faulted for the 17 18 fact that his doctors did not discuss with him the three specific medications that 19 the ALJ thought might help his migraines. See id.; AR 23 (stating that “claimant 20 admitted at the hearing that he has sought no treatment for migraines in 21 approximately one year, and that he has not discussed advanced treatments with 22 his doctor (e.g., AJOVY, Aimovig, Emgality)”). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 23 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1470 Page 24 of 26 1 the current record.78 On remand, the ALJ shall conduct anew the disability 2 evaluation, beginning at step two. With respect to the medical-opinion evidence, as to each medical source, the 3 4 ALJ must meaningfully articulate the supportability and consistency of the 5 source’s medical opinions. The ALJ shall further develop the record if he deems it 6 necessary. To this end, the Court encourages the ALJ to receive testimony from 7 one or more medical expert qualified to address those of Plaintiff’s claimed 8 impairments which are supported by at least some objective medical evidence, 9 specifically including but not limited to Plaintiff’s chronic pain, mental disorders 10 (and the likely impact of chronic pain on the same), hand disorders/carpal tunnel 11 syndrome, and migraines/headaches.79 12 If the ALJ again discounts Plaintiff’s symptom reports on remand, the ALJ 13 must articulate clear and convincing reasons for doing so.80 General findings are 14 insufficient because the Court cannot affirm discounting Plaintiff’s symptoms for a 15 reason not articulated by the ALJ.81 The ALJ must identify what symptoms are 16 17 78 See Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017); Garrison, 759 F.3d at 18 1020. 19 79 ALJs are not empowered to render medical opinions by independently assessing 20 clinical findings. See Tackett v. Apfel, 180 F.3d 1094, 1102–03 (9th Cir. 1999). 21 80 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 81 See Garrison, 759 F.3d at 1010. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 24 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1471 Page 25 of 26 1 being discounted and what evidence undermines these symptoms.82 When 2 assessing Plaintiff’s mental health symptoms, the ALJ is encouraged to give more 3 weight to the mental health findings made during mental health examinations or 4 treatment sessions, rather than during appointments for solely physical 5 conditions.83 V. 6 Conclusion 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 9 2. 10 The Commissioner’s Motion for Summary Judgment, ECF No. 13, is DENIED. 11 3. 12 The Court REVERSES the decision of the ALJ and REMANDS this 13 matter to the Commissioner of Social Security for further proceedings 14 pursuant to sentence four of 42 U.S.C. § 405(g). 15 // 16 / 17 18 82 See Garrison, 759 F.3d at 1010 (quoting Lester, 81 F.3d at 834, and Thomas v. 19 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 20 explain why he discounted claimant’s symptom claims)). 21 83 See AR 364–65. See Ford 950 F.3d at 1156 (comparing psychologist’s mental 22 health findings against findings from other mental health professionals). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 25 Case 4:21-cv-05104-EFS ECF No. 18 filed 09/28/22 PageID.1472 Page 26 of 26 1 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 2 5. The case shall be CLOSED. 3 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 4 5 provide copies to all counsel. DATED this 28th day of September 2022. 6 7 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 26
]]>
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.
