Smith v. Kijakazi, No. 4:2021cv05121 - Document 21 (E.D. Wash. 2022)
Court Description: ORDER GRANTING 14 PLAINTIFF'S SUMMARY-JUDGMENT MOTION, DENYING 19 DEFENDANT'S SUMMARY-JUDGMENT MOTION, AND REMANDING FOR PAYMENT OF BENEFITS. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Smith v. Kijakazi Doc. 21 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1701 Page 1 of 29 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jun 27, 2022 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 JULIANNA S., 1 4:21-cv-5121-EFS Plaintiff, 8 v. 9 10 No. KILOLO KIJAKAZI, Acting Commissioner of Social Security, 11 ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S SUMMARY-JUDGMENT MOTION, AND REMANDING FOR PAYMENT OF BENEFITS Defendant. 12 13 Plaintiff Julianna S. appeals the denial of benefits by the Administrative 14 15 Law Judge (ALJ). For the reasons stated below, the ALJ erred when weighing the 16 medical opinions and evidence. Because the evidence clearly supports a finding of 17 disability, the Court remands for payment of benefits. 18 19 20 21 1 To protect the privacy of the each social-security plaintiff, the Court refers to 22 them by first name and last initial or as “Plaintiff.” See LCivR 5.2(c). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com Case 4:21-cv-05121-EFS 1 I. 2 ECF No. 21 filed 06/27/22 PageID.1702 Page 2 of 29 Five-Step Disability Determination A five-step sequential evaluation process is used to determine whether an 3 adult claimant is disabled. 2 Step one assesses whether the claimant is engaged in 4 substantial gainful activity. 3 If the claimant is engaged in substantial gainful 5 activity, benefits are denied. 4 If not, the disability evaluation proceeds to step two. 5 6 Step two assesses whether the claimant has a medically severe impairment 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. 6 Id. § 416.920(a)(4)(ii). 7 Id. § 416.920(c). 8 Id. 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-05121-EFS ECF No. 21 filed 06/27/22 PageID.1703 Page 3 of 29 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. 3 Step four assesses whether an impairment prevents the claimant from 4 performing work she 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. 7 Step five assesses whether the claimant can perform other substantial 8 gainful work—work that exists in significant numbers in the national economy— 9 considering the claimant’s RFC, age, education, and work experience. 13 If so, 10 benefits are denied. If not, benefits are granted. 14 11 The claimant has the initial burden of establishing she is entitled to 12 disability benefits under steps one through four. 15 At step five, the burden shifts to 13 the Commissioner to show the claimant is not entitled to benefits. 16 14 15 16 10 20 C.F.R. § 416.920(d). 11 Id. § 416.920(a)(4)(iv). 12 Id. 13 Id. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497–98 (9th Cir. 1984). 14 20 C.F.R. § 416.920(g). 15 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 16 Id. 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 Case 4:21-cv-05121-EFS 1 ECF No. 21 filed 06/27/22 PageID.1704 Page 4 of 29 If there is medical evidence of drug or alcohol addiction, the ALJ must then 2 determine whether drug or alcohol use is a material factor contributing to the 3 disability. 17 If the remaining limitations without drug or alcohol use would not be 4 disabling, disability benefits are not awarded. 18 5 II. 6 Factual and Procedural Summary On February 1, 2017, Plaintiff filed a Title 16 application. 19 Her disability 7 claim was denied initially and on reconsideration. 20 An administrative hearing was 8 held before ALJ Marie Palachuk, who took testimony from Marian Martin, Ph.D., 9 who was the testifying medical expert, and from Plaintiff about her conditions and 10 symptoms. 21 After the hearing, the ALJ issued a decision denying Plaintiff’s 11 disability application. 22 Plaintiff sought review by the Appeals Council, which 12 remanded the matter back to the ALJ to consider the report prepared by Philip 13 14 15 16 17 20 C.F.R. § 416.935(a). 18 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 416.935; Sousa v. Callahan, 143 F.3d 1240, 17 18 1245 (9th Cir. 1998). 19 19 AR 278–83. 20 AR 150–53, 159–65. 21 AR 49–83. 22 AR 124–43. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1705 Page 5 of 29 1 Barnard, Ph.D., to reconsider the nonmedical opinion of John Robinson, Ph.D., and 2 to obtain additional evidence. 23 3 On remand, the ALJ conducted a telephonic hearing and took additional 4 testimony from Plaintiff about her conditions and symptoms. 24 The ALJ again 5 denied Plaintiff’s disability application, finding: 6 • 7 Step one: Plaintiff had not engaged in substantial gainful activity since January 23, 2017, the application date. 8 • 9 Step two: Plaintiff had the following medically determinable severe impairments: depression, anxiety, marijuana dependence, chronic 10 back pain/degenerative disc disease, and right hip labral tear (status 11 post arthroscopic repair surgery). 12 • 13 Step three: Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the 14 listed impairments. 15 • 16 RFC: Plaintiff had the RFC to perform light work with the following psychological limitations: 17 She is able to understand, remember, and carry out simple, routine, repetitive tasks and instructions. She is able to maintain concentration, persistence, and pace on simple, routine tasks for two-hour intervals between regularly scheduled breaks. She needs to be in a predictable environment with seldom changes, no exercise of judgment, 18 19 20 21 23 AR 144–49. 24 AR 84–95. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 Case 4:21-cv-05121-EFS 1 3 4 5 PageID.1706 Page 6 of 29 • Step four: Plaintiff had no past relevant work. • Step five: considering Plaintiff’s RFC, age, education, and work history, Plaintiff could perform work that existed in significant 6 numbers in the national economy, such as garment sorter and 7 cannery worker. 25 8 In reaching her decision, the ALJ gave: 9 • 10 significant weight to the reviewing opinions of Marian Martin, Ph.D., and Andrew Forsyth, Ph.D. 11 • 12 little or limited weight to the reviewing opinions of John Robinson, Ph.D., JD Fitterer, M.D., and Aaron Burdge, Ph.D.; the examining 13 opinions of N.K. Marks, Ph.D., Philip Barnard, Ph.D., and David 14 Morgan, Ph.D.; and the treating opinions of Julie Raekes, M.D., and 15 Heather Ramirez, MSW. 26 16 The ALJ also found Plaintiff’s medically determinable impairments could 17 19 filed 06/27/22 no fast-paced production rate of pace, no public interactions, and no more than superficial interactions with coworkers (defined as non-collaborative/no teamwork). She needs to be dealing with things rather than people. 2 18 ECF No. 21 reasonably be expected to cause some of the alleged symptoms, but her statements concerning the intensity, persistence, and limiting effects of those symptoms were 20 21 25 AR 13–38. 26 AR 26–29. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1707 Page 7 of 29 1 inconsistent with the medical evidence and other evidence. 27 And the ALJ gave 2 some weight to Plaintiff’s mother’s lay statements. 28 3 4 Plaintiff requested review of the ALJ’s second decision by the Appeals Council, which denied review. 29 Plaintiff timely appealed to the Court. 5 III. 6 Standard of Review A district court’s review of the Commissioner’s final decision is limited. 30 The 7 Commissioner’s decision is set aside “only if it is not supported by substantial 8 evidence or is based on legal error.” 31 Substantial evidence is “more than a mere 9 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 10 mind might accept as adequate to support a conclusion.” 32 Moreover, because it is 11 the role of the ALJ—and not the Court—to weigh conflicting evidence, the Court 12 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 13 from the [entire] record.” 33 14 15 27 AR 24–26. 28 AR 29. 29 AR 1–6. 30 42 U.S.C. § 405(g). 31 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 32 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 33 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Lingenfelter v. Astrue, 504 16 17 18 19 20 21 22 F.3d 1028, 1035 (9th Cir. 2007) (requiring the court to weigh “both the evidence 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 Case 4:21-cv-05121-EFS 1 ECF No. 21 filed 06/27/22 PageID.1708 Page 8 of 29 Further, the Court may not reverse an ALJ decision due to a harmless 2 error. 34 An error is harmless “where it is inconsequential to the ultimate 3 nondisability determination.” 35 4 5 IV. A. 6 Analysis Medical Opinions: Plaintiff establishes consequential error. Plaintiff argues the ALJ erred by rejecting the opinions of the treating 7 medical professionals Dr. Raekes and Ms. Ramirez. As discussed below, the Court 8 agrees. 36 9 1. 10 11 12 13 14 Standard When Plaintiff filed her disability application, medical opinions were assessed depending on the nature of the medical relationship the claimant had with the medical provider. For instance, a treating physician’s or evaluating physician’s opinion may be rejected only for “clear and convincing” reasons if it is not contradicted by another physician’s opinion, or if it is contradicted by another 15 16 that supports and the evidence that detracts” from the ALJ’s decision) (cleaned up); 17 Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998). 18 34 Molina, 674 F.3d at 1111. 35 Id. at 1115 (cleaned up). 36 Because the ALJ’s decision to afford little weight to Dr. Reakes’ and 19 20 21 Ms. Ramirez’s opinions is not supported by substantial evidence and this error is 22 consequential, the Court need not address Plaintiff’s remaining arguments. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1709 Page 9 of 29 1 physician’s opinion, it may be rejected for “specific and legitimate reasons” 2 supported by substantial evidence. 37 A reviewing physician’s opinion may be 3 rejected for specific and legitimate reasons supported by substantial evidence, and 4 the opinion of an “other” medical source may be rejected for specific and germane 5 reasons supported by substantial evidence. 38 6 2. 7 8 9 10 11 Since at least 2016, Plaintiff has been treated by Dr. Raekes on about a monthly basis. Dr. Raekes completed three medical opinions, two in June 2019 (a Medical Report and a Physical Functional Evaluation) and the other in January 2021 (a Medical Report), which included very limiting work restrictions. 39 The ALJ gave little weight to these opinions. 40 12 13 Dr. Raekes Because Dr. Raekes’ limiting work restrictions were contradicted by Dr. Fitterer’s opinion that Plaintiff had no severe physical limitations and 14 15 16 17 37 Id.; Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). 38 Molina, 674 F.3d at 1111. The opinion of a reviewing physician serves as 18 19 substantial evidence if it is supported by other independent evidence in the record. 20 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 21 39 AR 1368–73, 1564–66. 40 AR 28. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1710 Page 10 of 29 1 Dr. Martin’s more mild non-exertional work restrictions, the ALJ was required to 2 provide specific and legitimate reasons for discounting Dr. Raekes’ opinions. 41 3 4 The ALJ stated that she discounted Dr. Raekes’ 2019 opinions because they were contradictory and were not supported by the objective medical evidence. 5 a. 6 The 2019 opinions were consistent First, the ALJ discounted Dr. Raekes’ 2019 opinions because they were 7 contradictory—and extreme—opinions. An ALJ may discount a medical opinion if 8 it is internally inconsistent or inconsistent with the physician’s own medical 9 notes. 42 Here, Dr. Raekes’ 2019 Physical Functional Evaluation opinion said that 10 Plaintiff could sustain sedentary work and that she would be off task for 30% of the 11 workday, while the 2019 Medical Report opinion limited Plaintiff to not lifting 12 objects that weighed two pounds and no standing or walking, i.e., she was 13 “Severely limited.” 43 The ALJ accurately summarized Dr. Raekes’ opined 14 limitations but these opined limitations are not inconsistent with each other when 15 read in the context of each form’s specific questions. 16 17 For instance, as to the first purported inconsistency between being able to perform sedentary work and being off task for more than 30% of the workday, 18 19 41 See Molina, 674 F.3d at 1111. 42 20 C.F.R. 416.927(c)(3), (4). See Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 20 21 2017). 22 43 AR 1368–73. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1711 Page 11 of 29 1 these questions pertain to two different abilities: Plaintiff’s exertional and non- 2 exertional abilities. Dr. Raekes’ sedentary-work opinion was based solely on 3 Plaintiff’s exertional abilities while the off-task question required Dr. Raekes to 4 consider Plaintiff’s ability to remain on task during a 40-hour workweek “[b]ased 5 on the cumulative effect of all limitations.” 44 The off-task question required 6 Dr. Raekes to consider all of Plaintiff’s limitations—both exertional and non- 7 exertional. It was therefore not inconsistent for Dr. Raekes to opine that Plaintiff 8 could physically perform sedentary work but be off task for more than 30% of her 9 workday when considering her anxiety, pain symptoms, and other mental health 10 symptoms. 45 11 As to the second purported inconsistency, the Physical Functional 12 Evaluation and the Medical Report forms defined light work, sedentary work, and 13 severely limited differently. The Medical Report 46 stated: 14 15 16 44 AR 1370. 45 See Lester, 81 F.3d at 829–30 (noting that, for claimant with chronic pain 17 18 syndrome and affective disorder, the consequences of the physical and mental 19 impairments were inextricably linked and the Commissioner “erred as a matter of 20 law in isolating the effects of [the claimant’s] physical impairment from the effects 21 of his mental impairment”). 22 46 AR 1369. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1712 Page 12 of 29 1 2 3 4 5 6 7 In comparison, the Physical Functional Evaluation47 stated: 8 9 10 11 12 13 14 15 16 17 18 19 Although both forms identify the same lifting and carrying restrictions for sedentary work, the restrictions for walking and standing are different. The Physical Functional Evaluation required that in order to perform sedentary work Plaintiff be able to “walk or stand only for brief periods,” while the Medical Report required that the person be able to do “a certain amount of walking and standing” in order to perform sedentary work. 48 Dr. Raekes apparently deemed this distinction important as she completed these forms on the same day, selecting severely limited on the Medical Report and sedentary work on the Physical 20 21 47 AR 1373. 48 AR 1369, 1373. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1713 Page 13 of 29 1 Functional Evaluation. Given the differing sedentary-work language and that the 2 forms were completed on the same day, the ALJ had a duty, before discounting 3 these opinions for being contradictory, to ask Dr. Raekes to clarify her opinion. 49 4 Moreover, even if there is an inconsistency between being able to walk or 5 stand for “brief periods” and not being able to do a “certain amount” of walking and 6 standing, Dr. Raekes clearly opined that Plaintiff did not have the ability to walk 7 or stand as required for a light work on either of these forms, which was either 8 “frequent walking or standing” (Medical Report) or “walk or stand six out of eight 9 hours per day” (Physical Functional Evaluation). 50 The ALJ crafted an RFC 10 requiring Plaintiff to perform light work as defined by 20 C.F.R. 416.967(b), which 11 requires Plaintiff to do “a good deal of walking or standing.” ability to walk and 12 stand was markedly limited, which is inconsistent with the ALJ’s light-work RFC. 13 b. 14 15 Opinions are supported by the medical evidence Second, the ALJ discounted Dr. Raekes’ 2019 opinions that Plaintiff was severely limited (as defined on the Medical Report), was limited to sedentary 16 17 49 20 C.F.R. § 404.1512.(e); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 18 2001) (“Ambiguous evidence, or the ALJ’s own finding that the record is inadequate 19 to allow for proper evaluation of the evidence, triggers the ALJ's duty to ‘conduct 20 an appropriate inquiry.’”) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 21 1996)). 22 50 AR 1369, 1373. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1714 Page 14 of 29 1 exertion (as defined on the Physical Functional Evaluation), would be off-task 30% 2 of the workday, and should be restricted to occasional reaching or handling 3 bilaterally—on the grounds that these limitations were not supported by the 4 medical evidence. 51 An ALJ is to consider whether an opinion is supported by the 5 medical evidence. 52 Here, the ALJ did not explain in the paragraph pertaining to 6 Dr. Raekes’ 2019 opinions why those opinions were not supported by the medical 7 evidence, but in the next paragraph pertaining to Dr. Raekes’ 2021 opinion, the 8 ALJ highlighted certain medical evidence. 53 And similar to Dr. Raekes’ 2019 9 opinions, the ALJ gave little weight to Dr. Raekes’ 2021 54 opinion, including that 10 Plaintiff was severely limited, would miss at least 4 days of work per month, and 11 would be off-task and unproductive more than 30% of the workweek, because it 12 was “not consistent with the evidence.” 55 13 In the paragraph analyzing Dr. Rakes’ 2021 opinion, the ALJ mentioned 14 that the “objective evidence as to the claimant’s spine was fairly unremarkable 15 (imaging studies of the lumbar spine showed only mild degenerative findings and 16 17 51 AR 28. 52 20 C.F.R. § 416.927(c)(3–4); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 18 19 1190, 1195 (9th Cir. 2004). 20 53 AR 28. 54 AR 1564–66. 55 AR 28. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1715 Page 15 of 29 1 imaging studies of the thoracic spine were normal,” the “physical exams typically 2 showed a normal gait,” “although imaging of the right hip showed a small labral 3 tear, this was surgically repaired in August 2019,” and Plaintiff was discharged 4 from physical therapy for non-compliance after her surgery. 56 The ALJ erred by 5 largely citing only to the normal findings without discussing the abnormal findings 6 in the record. 57 For instance, Plaintiff’s lumbar imaging revealed, in addition to the 7 mild degenerative disc disease, that Plaintiff had L3 and L4 limbus vertebra and 8 thoracolumbar levoscoliosis. 58 And while Plaintiff often had a normal gait, the 9 three comprehensive physical examinations performed by Dr. Baldwin, which 10 Dr. Raekes had requested, elicited lumbar and hip pain and resulting limitations. 59 11 12 56 AR 28. 57 The ALJ discounted Dr. Raekes’ 2019 recommendation that Plaintiff perform no 13 14 more than occasional reaching or handling bilaterally, as Plaintiff had not been 15 diagnosed with or treated for any impairment likely to impact the upper 16 extremities. However, the ALJ did not consider the impact of Plaintiff’s low back 17 condition on Plaintiff’s ability to reach. Nonetheless, even if substantial evidence 18 supports the ALJ’s decision to discount Dr. Raekes’ reaching or handling 19 limitations, substantial evidence fails to support the ALJ’s discounting of 20 Dr. Raekes’ other exertional and non-exertional limitations. 21 58 AR 1366. 59 AR 1319–23, 1337–40, 1342–45. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1716 Page 16 of 29 1 Also, during Dr. Baldwin’s January 2019 examination, Plaintiff had a positive 2 straight leg raise on her right side both lying and sitting, her lumbar range of 3 motion was limited, and she had sciatic notch pressure and sacroiliac tenderness 4 on her right side. 60 Dr. Baldwin found that Plaintiff had “quite significant 5 symptoms of right lower extremity radiculopathy and that she “clearly has 6 radicular pain in her back and lower extremity.” 61 In addition, the ALJ failed to 7 mention that Plaintiff continued to report pain following the surgery to repair the 8 right hip labral tear. And although Plaintiff ceased post-surgery physical therapy, 9 she was upfront with this with Dr. Raekes, who noted in the treatment note, “She 10 quit physical therapy 1 month ago; ‘the guy was pushing too hard and it was 11 hurting’; water therapy at Columbia Physical therapy. She does like PT there 12 named Clark and Discussed Mon-Thur; watching dogs from 10-5 p.m.” 62 13 Another error in the ALJ’s analysis of Dr. Raekes’ opinions was failing to 14 discuss Plaintiff’s physical impairments in conjunction with her pain, medication 15 side effects, and mental-health impairments. For instance, Dr. Raekes based her 16 opinion that Plaintiff would be unable to work on a regular and continuous basis on 17 Plaintiff’s “chronic medications, severe anxiety, and untreated bipolar disorder” 18 and noted that Plaintiff’s medications limit her activities due to their side effects 19 20 60 AR 1338. 61 AR 1339. 62 AR 1485. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1717 Page 17 of 29 1 causing her to be sedentary. 63 Yet, the ALJ did not discuss the impact of Plaintiff’s 2 medication side-effects. 64 Likewise, Dr. Raekes explained that Plaintiff would miss 3 4 or more days per month because “she is limited by her anxiety and bipolar 4 disorder, also by her chronic pain.” Similarly, Dr. Raekes supported her 2021 5 opinion with the following comment: 6 [Plaintiff] has been under psychiatric care since kindergarten when diagnosed with ADHD. She did not finish high school or obtain her GED due to anxiety, ADHD, currently with pain disorder, persistent anxiety/depression and suspect bipolar disorder. Adult psychiatric care limited, she continued to participate in counseling. 65 7 8 9 10 11 12 13 The ALJ’s analysis of the medical evidence fails to adequately explain why Dr. Raekes’ medical opinion is unsupported by the medical evidence pertaining to Plaintiff’s physical and mental impairments and resulting pain and medication side-effects. Moreover, similar to Dr. Raekes’ findings, each of the treating and 14 15 16 examining mental-health professionals opined that Plaintiff was at least markedly limited with learning new tasks, adapting to changes in a routine work setting, 17 18 63 AR 1564. 64 See SSR 16-3p (allowing the medical source to consider medication side-effects 19 20 and requiring the ALJ to consider medication side-effects when assessing the 21 claimant’s symptom reports). 22 65 AR 1566. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1718 Page 18 of 29 1 communicating and performing effectively in a work setting, maintaining 2 appropriate behavior in a work setting, and/or completing a normal workday and 3 workweek without interruptions from psychologically based symptoms. 66 The ALJ’s 4 analysis of the medical opinions and medical evidence fails to afford meaningful 5 explanation for why the ALJ determined that the reviewing medical opinions, 6 rather than the treating or consultative opinions, were more consistent with the 7 overall medical evidence. 8 c. 9 Conclusion The ALJ failed to provide specific and legitimate reasons supported by 10 substantial evidence for discounting Dr. Raekes’ 2019 and 2021 opinions. This 11 error was consequential as the vocational expert testified that if Plaintiff is off task 12 and unproductive more than 10% of the workday or workweek, is argumentative or 13 too disruptive in the workplace, or requires frequent reminders to do basic routine 14 tasks, she will be unable to sustain competitive employment. 67 15 16 17 18 19 66 AR 1374–78 (Dr. Barnard); AR 1380–83 (Dr. Burdge); AR 1282–85, 1567–70 20 (Ms. Ramirez); AR 1384–88 (Dr. Morgan). See also AR 58–60 (Dr. Martin finding 21 that Plaintiff’s ability to interact with others was moderately to markedly limited). 22 67 AR 80–82. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1719 Page 19 of 29 1 3. 2 Since about 2016, Plaintiff received counseling services from Ms. Ramirez. Counselor Ramirez 68 3 Ms. Ramirez completed a Mental Residual Functional Capacity Assessment in May 4 2019 and January 2021 and provided counseling notes from their 2018–19 5 sessions. 69 Ms. Ramirez opined that Plaintiff was moderately, markedly, or 6 severely limited in her capacity to sustain the majority of the listed non-exertional 7 activities over a normal workday and workweek on an ongoing basis. 8 The ALJ gave little weight to Ms. Ramirez’ two opinions. The ALJ gave little 9 weight to the 2019 opinion on the grounds that it was unsupported by 10 Ms. Ramirez’s treatment records, which the ALJ deemed to reflect treatment for 11 mild abnormalities, such as improving sleep and communication skills and 12 addressing Plaintiff’s concern about the disability hearing, and that Plaintiff 13 routinely presented as engaged with appropriate mood. 70 As to Ms. Ramirez’s 2021 14 opinion, the ALJ discounted the opinion because it was 1) inconsistent with the 15 overall medical record, which the ALJ deemed to reflect routine mental-health 16 treatment that helped alleviate Plaintiff’s symptoms, no inpatient psychiatric 17 18 19 20 68 Heather Ramirez’s last name was previously Heather Shoop. 69 AR 1282–85, 1567–70, 1270–80. 70 AR 27. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1720 Page 20 of 29 1 hospitalizations, and often unremarkable mental status examinations, and 2) 2 contradicted by Dr. Martin, who reviewed the longitudinal medical record. 71 3 a. 4 The 2019 opinion is supported by Ms. Ramirez’s treatment notes, opinion comments, and letter. 5 The ALJ discounted Ms. Ramirez’s 2019 opinion on the grounds that it was 6 unsupported by Ms. Ramirez’s treatment records, as they reflected treatment for 7 relatively mild abnormalities and indicated that Plaintiff “routinely presented as 8 engaged with appropriate mood.” 72 An ALJ may discount an opinion that is 9 inadequately supported by medical findings and observations. 73 Here, the record 10 contains Ms. Ramirez’s 2019 opinion (and 2021 opinion) and treatment summaries 11 from January 2018 to May 2019. 74 During that time frame, Ms. Ramirez generally 12 13 71 AR 28. 72 AR 27. 73 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) 14 15 16 (recognizing that a medical opinion may be rejected if it is conclusory or 17 inadequately supported); Lingenfelter, 504 F.3d at 1042 (recognizing that a medical 18 opinion is evaluated as to the amount of relevant evidence that supports the 19 opinion, the quality of the explanation provided in the opinion, and the consistency 20 of the medical opinion with the record as a whole); Crane v. Shalala, 76 F.3d 251, 21 253 (9th Cir. 1996). 22 74 AR 1270–80. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1721 Page 21 of 29 1 met with Plaintiff weekly; however, Plaintiff cancelled some appointments due to 2 pain, difficulties driving, and emergencies or conflicts, or simply did not show for 3 appointments. Although the summaries indicate that Plaintiff was often engaged 4 with appropriate mood, she was also noted as being depressed, being anxious, 5 having a flat mood/affect, being angry and frustrated, and having suicidal 6 ideation. 75 Ms. Ramirez also notes that during counseling sessions they discussed 7 Plaintiff’s frustrations with her family and others, her chronic pain, her continued 8 difficulties participating in work or activities she enjoyed, and her impacted sleep. 9 10 In her 2019 opinion, Ms. Ramirez added the following comment to explain her opined limitations: 11 Julianna struggles with maintaining interpersonal relationships. Due to her mental health struggles, she is unable to perform work/family/social functioning long term. Julianna makes a lot of progress however when triggered Julianna has a hard time controlling her emotional level. Julianna can be extremely successful with positive interactions and when she is able to build a strong relationship with a person. This can be difficult and time consuming which is unrealistic for most employers. Julianna is extremely passionate and does really well with animals, however physically she has been unable to perform which causes a lot of mental health struggles. 12 13 14 15 16 17 18 19 20 This detailed comment and the treatment summaries adequately support Ms. Ramirez’s 2019 opined limitations, particularly when this treatment information is considered alongside Ms. Ramirez’s comments in 2021 after 2 21 22 75 Id. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1722 Page 22 of 29 1 additional years of counseling sessions. In a detailed 2-page letter in 2021, 2 Ms. Ramirez again discusses Plaintiff’s difficulties and explains that although 3 Plaintiff “has been able to make progress regarding her social interactions with 4 strangers and short interactions,” “she will struggle with daily interactions with 5 people [in the work environment] causing extreme conflict especially if challenged 6 in any way.” 76 7 8 The ALJ’s finding that Ms. Ramirez’s 2019 opinion was not supported by Ms. Ramirez’s treatment notes is not supported by substantial evidence. 9 b. 10 The 2021 opinion is supported by the overall medical record. The ALJ discounted Ms. Ramirez’s 2021 opinion because it was inconsistent 11 with the overall medical record. Whether a medical opinion is consistent with the 12 overall medical record is a factor for the ALJ to consider. 77 The ALJ highlighted 13 that the record reflects relatively routine mental-health treatment that helped 14 alleviate Plaintiff’s symptoms, that there were no inpatient psychiatric 15 hospitalizations, and often unremarkable mental-status examinations. 78 However, 16 the ALJ cherrypicked the normal mental-health findings in the record without 17 18 19 20 76 AR 1571–72. 77 20 C.F.R. § 416.920c(b)(2). 78 AR 28. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1723 Page 23 of 29 1 discussing the abnormal mental-health records. 79 For instance, the ALJ failed to 2 address the information contained in Ms. Ramirez’s 2021 letter detailing that 3 Plaintiff continues to struggle with regulating her anger and requires flexibility in 4 her treatment plan as she forgets her appointments. Ms. Ramirez acknowledges 5 that Plaintiff’s need for crisis intervention has reduced but she struggles with 6 understanding and memory, making it “difficult to build routines and structure in 7 her life.” 80 And as noted above, Ms. Ramirez opined, based on her generally weekly 8 interactions with Plaintiff, that Plaintiff would struggle with daily interactions 9 with people at the workplace, particularly if she was challenged. Instead of 10 considering Plaintiff’s continued interpersonal and understanding difficulties— 11 difficulties that have persisted since Plaintiff’s youth—the ALJ merely focused on 12 the normal findings and improvement. 13 The record reflects that Plaintiff’s behavioral difficulties began as a youth 14 and continued into her young adulthood even though she has had the support of 15 16 17 79 See Ghanim v. Colvin, 763 F.3d 1154,1164 (9th Cir. 2014) (emphasizing that 18 treatment records must be viewed considering the overall diagnostic record); 19 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (disallowing the ALJ from 20 cherry picking evidence to support a conclusion that contradicts the overall 21 diagnostic record). 22 80 AR 1571. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 23 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1724 Page 24 of 29 1 her mother, a care manager, and Ms. Ramirez. 81 As one example of Plaintiff’s 2 behavioral difficulties, during a psychodiagnostics evaluation with Dr. Marks in 3 2017, at which Plaintiff was accompanied by her mother and a care manager, 4 Plaintiff was not cooperative, did not put forth effort, and was depressed, agitated, 5 angry, and inappropriate to such extent that Dr. Marks was unable to complete the 6 assessment. 82 In addition, the record contains reports from welfare checks that 7 reveal Plaintiff’s mental instability, including suicidal thoughts. 83 The ALJ 8 mentioned “some welfare checks from the local police department and some 9 intermittent outpatient counseling history” but then found that the counseling 10 history did “not reflect any acute abnormality that would warrant greater 11 accommodation than that found in the residual functional capacity.” 84 This 12 13 81 See, e.g., AR 319 (“Julianna’s behaviors have and do impact her ability to [be] 14 successful in the general education classroom environment.”); AR 433 (“Julianna 15 struggles with expressing her thoughts and feelings appropriately when she feels 16 upset. She will either use profanity to express her thoughts and/or report that she 17 is feeling ill.”); AR 487 (“She has an angry affect and is verbally hostile with even 18 her mother talking to her.”); AR 492 (detailing that she will break and hit things 19 when she is upset and that she becomes frustrated easily). 20 82 AR 839–42. 83 AR 293–306. 84 AR 26. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 24 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1725 Page 25 of 29 1 unexplained finding is not supported by substantial evidence. The ALJ failed to 2 meaningfully explain why evidence such as Plaintiff’s continued contacts with the 3 crisis center and inappropriate behavior when being examined by Dr. Marks, 4 especially when considered along with Ms. Ramirez’s counseling notes and letter, 5 fail to support Ms. Ramirez’s opined non-exertional limitations. 6 c. 7 Dr. Martin’s review of the record does not serve as substantial evidence to discount Ms. Ramirez’s opinions. 8 Finally, the ALJ discounted Ms. Rameriz’s opinion because it is contradicted 9 by the opinion of Dr. Martin, who the ALJ deemed to have reviewed the 10 longitudinal medical record. An ALJ may give more weight to an opinion that is 11 based on more record review and supporting evidence. 85 Here, Dr. Martin reviewed 12 the medical records that were available to her in June 2019; however, she did not 13 review the psychological examination report prepared by Dr. Barnard in August 14 2018. After conducting a clinical interview and a mental status examination, which 15 included memory, fund of knowledge, and concentration tests, Dr. Barnard opined 16 several marked limitations as to Plaintiff’s non-exertional abilities, including that 17 Plaintiff had marked limitations with learning new tasks, adapting to changes in a 18 19 85 See 20 C.F.R. § 416.920c(b)(2), (c)(2); Lingenfelter, 504 F.3d at 1042 (recognizing 20 that the ALJ is to consider the consistency of the medical opinion with the record 21 as a whole and assess the amount of relevant evidence that supports the opinion); 22 Andrews, 53 F.3d at 1041 (same). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 25 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1726 Page 26 of 29 1 routine work setting, asking simple questions or requesting assistance, 2 maintaining appropriate behavior in the work setting, and completing a normal 3 workday and workweek without interruptions from psychologically based 4 symptoms. 86 Because Dr. Martin did not review Dr. Barnard’s opinion, the Appeals 5 Council previously remanded this matter back to the ALJ. 87 Likewise, it was not 6 appropriate for the ALJ to discount Ms. Ramirez’s opinion on the basis that 7 Dr. Martin had a more longitudinal medical record review than Ms. Ramirez. 8 Dr. Martin had not reviewed Dr. Barnard’s opinion and she did not review any of 9 the records issued after her June 2019 opinion. In comparison, Ms. Ramirez’s 10 opinions were based on her personal observations and interactions with Plaintiff 11 beginning since at least 2016 and continuing well after Dr. Martin testified. 12 B. 13 14 Remand for an Award of Benefits. Plaintiff submits a remand for payment of benefits is warranted. The Court agrees. 15 A district court “ordinarily must remand to the agency for further 16 proceedings before directing an award of benefits.” 88 The “credit-as-true” rule, on 17 which Plaintiff relies, is a “rare and prophylactic exception to the ordinary remand 18 19 20 86 AR 1374–78. 87 AR 144–48. 88 Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017). 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 26 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1727 Page 27 of 29 1 rule.” 89 For the Court to remand for award of benefits, three conditions must be 2 satisfied: 3 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 90 4 5 6 Each of these elements are met. First, the record is fully developed. The 7 8 record contains treating and examining opinions, as well as underlying medical 9 records, that indicate when Plaintiff’s physical and mental impairments, along 10 with medication side-effects, are considered she has non-exertional limitations that 11 prevent her from sustaining full-time work. In particular, both Dr. Raekes and 12 Ms. Ramirez, who have had longstanding treatment relationships with Plaintiff, 13 opine that Plaintiff is unable to sustain fulltime work. And these treating opinions 14 are consistent with the examining mental-health opinions and the significant 15 behavioral issues observed by Dr. Marks, who determined that Plaintiff “was 16 unable to remain emotionally and behaviorally stable enough to complete the 17 assessment. It is unlikely she could hold down a job.” 91 While the record contains 18 evidence of drug and alcohol use, no treating or examining medical professional 19 20 89 Id. 90 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 91 AR 843. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 27 Case 4:21-cv-05121-EFS ECF No. 21 filed 06/27/22 PageID.1728 Page 28 of 29 1 found that Plaintiff’s impairments were primarily the result of a substance use 2 disorder. 92 Likewise, the testifying medical expert did not indicate that Plaintiff’s 3 impairments were primarily the result of a substance use disorder. 93 Further 4 administrative proceedings will not serve a useful purpose. 5 6 Second, the ALJ failed to provide legally sufficient reasons for rejecting the medical opinions of Dr. Raekes and Ms. Ramirez. 7 Third, per the vocational expert’s testimony, if Dr. Raekes’ and 8 Ms. Ramirez’s opinions are credited as true, Plaintiff is unable to maintain 9 competitive employment, as Dr. Raekes and Ms. Ramirez opined that Plaintiff will 10 be off task and unproductive more than 10% of the workday or workweek, be 11 absent more than 1 day a month, and/or will be argumentative and disruptive in 12 the workplace. 94 13 14 Accordingly, remand for a payment of benefits from January 13, 2017, the date the Title 16 disability application was filed, is appropriate. 15 V. Conclusion 16 Accordingly, IT IS HEREBY ORDERED: 17 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 18 GRANTED. 19 20 92 AR 1373, 1377, 1383. 93 AR 53–66. 94 AR 80–82, 1282–85, 1370, 1566–72. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 28 Case 4:21-cv-05121-EFS 1 2. 2 3 ECF No. 21 filed 06/27/22 PageID.1729 Page 29 of 29 The Commissioner’s Motion for Summary Judgment, ECF No. 19, is DENIED. 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 4 REVERSING AND REMANDING the matter to the Commissioner 5 of Social Security for immediate calculation and award of benefits. 6 4. 7 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and 8 9 The case shall be CLOSED. provide copies to all counsel. DATED this 27th day of June 2022. 10 11 12 _____________ EDWARD F. SHEA Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 29
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