Tanaskovic v. Colvin

Filing 35

ORDER - IT IS THEREFORE ORDERED that Tanaskovic's claim for disability is remanded to the Commissioner of the Social Security Administration for an award of benefits. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. (See document for further details). Signed by Magistrate Judge David K Duncan on 3/31/17. (SLQ)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Olivera Tanaskovic,

No. CV-15-2535-PHX-DKD

Plaintiff,

10
11

v.

12

Commissioner of Social Security
Administration,

13

ORDER

Defendant.

14
15
16

Olivera Tanaskovic appeals from the denial of her application for benefits by the

17

Social Security Administration. This Court has jurisdiction pursuant to 42 U.S.C. §

18

405(g) and, with the parties’ consent to Magistrate Judge jurisdiction, pursuant to 28

19

U.S.C. § 636(c). Tanaskovic argues that she is entitled to benefits because, among other

20

reasons, the ALJ failed to properly weigh the medical source opinions. (Doc. 25) The

21

Court agrees.

22

BACKGROUND

23

Tanaskovic did not complete high school1 and was 34 years old in January 2011,

24

the amended onset date of her alleged disability. (Tr. 13, 35, 39) Her past relevant work

25

was as a cashier, cashier/checker, and receptionist. (Tr. 65)

26
27
1

28

The record is clear that she did not finish high school but it unclear how long she
stayed in school: 9th grade (Tr. 39), sophomore year (Tr. 770), 11th grade (Tr. 434), or as
a “freshman or a junior” (Tr. 615).

1

Medical Evidence: Treating Providers2

2

In early December 2010, Tanaskovic established care with a psychiatric nurse

3

practitioner, James Milacek. (Tr. 434-39) NP Milacek described her mood as anxious,

4

angry, and depressed and he prescribed her various medications based on his diagnosis of

5

mood disorder NOS, adjustment reaction with mixed emotional features, and depressive

6

disorder. (Tr. 436, 437, 439)

7

Subsequently, Tanaskovic received treatment from NP Milacek in late December

8

2010, March 2011, April 2011, July 2011, September 2011, October 2011, November

9

2011, and April 2012. At these medication management appointments, NP Milacek

10

noted anxiety (March 2011 at Tr. 562, April 2011 at Tr. 543, September 2011 at Tr. 508,

11

October 2011 at 492); depression and anxiety (December 2010 at Tr. 600, July 2011 at

12

Tr. 529, November 2011 at 484, April 2012 at Tr. 467); and constricted affect (July 2011

13

at Tr. 528, September 2011 at Tr. 508, October 2011 at Tr. 492, April 2012 at Tr. 466).

14

In May 2012, Tanaskovic presented to the emergency department for suicidal

15

ideation and self-inflicted lacerations. (Tr. 339-43) She was evaluated for inpatient

16

psychiatric care but was released home with directions to follow-up with a psychiatric

17

care clinic the following day. (Tr. 339) The record does not indicate whether she did, in

18

fact, follow-up the following day. However, less than three weeks later, she had an

19

appointment with NP Milacek where he concluded her status was “worsened” because of

20

her increasing mood instability and self-harming behaviors. (Tr. 450)

21

Ten days after this appointment with NP Milacek, Tanaskovic again presented to

22

the emergency department reporting suicidal thoughts and panic attacks.3 (Tr. 364) The

23

psychiatric evaluation described her as feeling overwhelmed, “currently not showering on

24

a regular basis and has generally decompensated.” (Tr. 358) She was discharged with

25

instructions to seek follow-up treatment. (Tr. 359, 379)

26
2

27
28

Tanaskovic does not appeal the ALJ’s finding that her physical impairments
were not severe. (Doc. 24 at 2, n.1) Accordingly, the Court will only address her mental
health.
3

The record reflects that her sister had recently died. (Tr. 358, 364)
-2-

1

Tanaskovic continued to have regular medication management appointments with

2

NP Milacek in July 2012, August 2012, September 2012, November 2012, January 2013,

3

February 2013, and March 2013. In September 2012, Tanaskovic reported that her mood

4

was “a little bit better.” (Tr. 687) In January 2013, Tanaskovic first reported auditory

5

hallucinations. (Tr. 676) In February 2013, she reported that she was in “less distress.”

6

Otherwise, her symptoms were either “unchanged” or “worsened.” (Tr. 629, 645, 676,

7

682)

8

At these appointments, NP Milacek noted that her mood was anxious (November

9

2012 at Tr. 682, February 2013 at Tr. 664); depressed and anxious (September 2012 at

10

Tr. 688, March 2013 at Tr. 644, April 2013 at Tr. 628) or depressed, anxious, and

11

agitated (January 2013 at Tr. 676). He described her thought content as fearful (February

12

2013 at Tr. 664); depressive and fearful (September 2012 at Tr. 688, March 2013 at Tr.

13

645, April 2013 at Tr. 628); or depressive, fearful, help/hopelessness, and anhedonic

14

(January 2013 at Tr. 676). He also noted her affect as blunted (January 2013 at Tr. 676)

15

or constricted (February 2013 at Tr. 664, March 2013 at Tr. 644, April 2013 at Tr. 628).

16

In April 2013, Tanaskovic transferred care to psychiatrist Hany Ashamalla, M.D.

17

At her initial evaluation, Dr. Ashamalla noted that Tanaskovic had fair insight and

18

judgment, auditory and visual hallucinations, flat affect, dysphoric mood, occasionally

19

loose associations, and thought content that was “paranoid” and “fearful.” He diagnosed

20

her with schizoaffective disorder and prescribed various medications. (Tr. 713-16)

21

Tanaskovic had medication management appointments with Dr. Ashamalla in May

22

2013, June 2013, July 2013, August 2013, and September 2013. The medical records

23

consistently document that Tanaskovic reported auditory and visual hallucinations. (May

24

2013 at Tr. 709, June 2013 at Tr. 749, July 2013 at Tr. 773, August 2013 at Tr. 769,

25

September 2013 at Tr. 765)

26

In conjunction with her August 2013 appointment, Dr. Ashamalla completed a

27

form entitled “Medical Assessment of Claimant’s Ability to Perform Work Related

28

Activities” (the “RFC Form”).

(Tr. 769)

-3-

He designated Tanaskovic as having a

1

“moderate” ability to perform simple tasks and to respond appropriately to supervisors

2

but rated her limitations as “moderately severe” or “severe” in all other areas. (Tr. 760-

3

61) He also indicated that her psychiatric symptoms had a moderately severe impact on

4

the sustainability of her work pace. (Tr. 761)

5

In September 2013, Dr. Ashamalla noted that Tanaskovic stated that her

6

symptoms – hearing voices, overwhelming anxiety, and nightmares – were the same

7

despite further changes in medication. (Tr. 765) In response, he again modified her

8

medication regime. (Tr. 767) There are no further medical records from Dr. Ashamalla

9

in the record before the Court.4

10

Medical Evidence: Non-Treating Physicians5

11

In October 2012, Elliot Salk, Ph.D., reviewed Tanaskovic’s file and found that she

12

had mild restrictions in her activities of daily living and moderate difficulties in

13

maintaining social functioning and in maintaining concentration, persistence, or pace.

14

(Tr. 82, 95) Dr. Salk found that she had some moderate RFC limitations and concluded

15

that she was capable of performing “simple tasks on a sustained basis.” (Tr. 83-86; 97-

16

99) He concluded that she was not disabled.

17
18
19
20
21
22
23

On reconsideration in July 2013, Stephen Bailey, Ed.D., found that Tanaskovic
had some moderate limitations and described her RFC as follows:
[Tanaskovic] maintains the ability to understand, remember and carry out
simple 1-2 step work related instructions. She can make commensurate
work related decisions and adjust to changes in the routine work setting.
She can work with and around others in low stress or low social demand
setting[s].
(Tr. 114; 128) He concluded that she continued to be not disabled. (Tr. 116; 130)

24
4

25
26
27
28

There are no records of Tanaskovic receiving treatment from Dr. Ashamalla in
November 2013. The ALJ opinion refers to such a visit but the record cited by the ALJ
was printed in November 2013 and signed by Dr. Ashamalla on September 30, 2013, the
date of the visit. (Compare Tr. 20 with Tr. 765-68)
5

In September 2012, Tanaskovic was evaluated by Sharon Steingard, D.O. (Tr.
613-19) Dr. Steingard did not complete the Medical Source Statement portion of her
evaluation and so the ALJ gave this opinion little weight. (Tr. 21) On appeal,
Tanaskovic does not challenge this determination.
-4-

1
2
3

Administrative Hearing
On January 22, 2014, ALJ Ted Ambruster conducted a hearing where Tanaskovic
and vocational expert Mark Kelman testified. (Tr. 33-73)

4

Tanaskovic testified that she left her last job at a hotel’s front desk because she

5

was not reliable and that she “was always scared to go to work because the voices and the

6

hallucinations” made her think that “people at the hotel were coming after me.” (Tr. 40,

7

59) She could not remember whether her other positions were full- or part-time and she

8

could not remember several of the jobs that were listed in her earnings records. (Tr. 42-

9

45) She stated that she’s too scared to drive, take the bus, or go outside. (Tr. 48, 50)

10

Instead, she only leaves the house to go to her doctor’s appointments. (Tr. 51, 60) She

11

testified that she does not have any friends. (Tr. 50, 51) She described her auditory

12

hallucinations as increasing in intensity and volume over the last few years and that the

13

voices never say anything positive. (Tr. 52-53, 63) She said that the medication does not

14

help with the voices and described a recurring visual hallucination. (Tr. 53, 55, 61-63)

15

She stated that medication sometimes helps end her anxiety attacks but that medication

16

has not helped with her depression.

17

prescribed Tramadol for her hip and leg pain, had taken a dose before the hearing, and

18

that it made her feel “a little spacey and a little tired.” (Tr. 58)

(Tr. 56-57)

She testified that she had been

19

Vocational expert Mark Kelman testified that Tanaskovic’s previous employment

20

could be categorized as ranging from unskilled to the low end of semi-skilled and that all

21

of her previous positions would be categorized as light work with SVPs of 2 or 3. (Tr.

22

64-65) The ALJ posed several hypotheticals to Kelman. The only hypothetical that

23

resulted in possible employment involved a residual functional capacity (“RFC”) of light

24

work with the additional non-exertional limitations of occasional interpersonal contact

25

with coworkers that was incidental to the work performed; where the complexity of tasks

26

is learned and performed by rote with very few variables and low judgement; occasional,

27

simple, direct, and concrete supervision; and no direct public contact.6 (Tr. 65-66)

28
6

The ALJ did not explain where these limitations came from. See Embrey v.
-5-

1

Under this scenario, Kelman testified that housekeeping and certain kinds of dishwashing

2

would be possible. (Tr. 66-67)

3

Tanaskovic’s attorney presented Kelman with a hypothetical that mirrored the

4

limitations in Dr. Ashamalla’s RFC Form.

5

Tanaskovic could not perform any past work or any other work. (Tr. 68)

6

ALJ Decision.

(Tr. 67-68)

Kelman responded that

7

The ALJ’s decision tracked the requisite five step process. (Tr. 13- 25) The ALJ

8

found that Tanaskovic had not engaged in any substantial gainful activity since her

9

alleged onset date and had the following severe impairments: obesity, bipolar disorder,

10

mood disorder NOS, anxiety disorder NOS, and borderline personality disorder. (Tr. 15,

11

16) The ALJ found that Tanaskovic did not have an impairment, or combination of

12

impairments, that met or medically equaled the severity of a listed impairment. (Tr. 17)

13

The ALJ found that Tanaskovic had the RFC to perform light work “limited to occasional

14

interpersonal contact with co-workers and incidental to the work performed; work with

15

complexity of tasks learned and performed by rote with very few variables and little

16

judgment; and supervision that is occasional, simple, direct, and concrete, and with no

17

direct public contact.” (Tr. 18)

18

The ALJ gave little weight to Tanaskovic’s treating physician, Dr. Ashamalla, and

19

gave great weight to the State agency’s reviewing physicians. (Tr. 21) Finally, the ALJ

20

found that although Tanaskovic could not perform any past relevant work, her RFC

21

meant that there were jobs that existed in significant numbers in the national economy

22

that she could perform. (Tr. 23) Accordingly, Tanaskovic did not meet the Social

23

Security Act’s definition of disability. (Tr. 24)

24

STANDARD OF REVIEW

25

This court must affirm the ALJ’s findings if they are supported by substantial

26

evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9th

27
28

Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (“Because the hypothetical posed by the ALJ to
the vocational expert did not reflect all of Embrey’s limitations, the expert's opinion has
no evidentiary value and cannot support the ALJ’s decision.”).
-6-

1

Cir. 1990).

2

preponderance; it is “such relevant evidence as a reasonable mind might accept as

3

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In

4

determining whether substantial evidence supports the ALJ’s decision, the court

5

considers the record as a whole, weighing both the evidence that supports and that which

6

detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

7

1988).

8

credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v.

9

Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Thus, the Court must affirm the ALJ’s

10

decision where the evidence considered in its entirety substantially supports it and the

11

decision is free from reversible error. 42 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d

12

498, 501 (9th Cir. 1989).

Substantial evidence is more than a mere scintilla, but less than a

The ALJ is responsible for resolving conflicts, ambiguity, and determining

13

ANALYSIS

14

On appeal, Tanaskovic argues, among other things, that she is entitled to benefits

15

because the ALJ failed to properly weigh Dr. Ashamalla’s medical source opinion. (Doc.

16

25)

17

dispositive to a finding of disability, the Court will not address Tanaskovic’s arguments

18

about the ALJ’s treatment of her credibility and her sister’s testimony. (Doc. 25 at 13-

19

24)

20

Treating Physician’s Opinion

As described below, the Court agrees.

Because Dr. Ashamalla’s opinion is

21

The views of treating physicians are accorded great deference – deserving

22

controlling weight, and if not in conflict with the record, can only be rejected with

23

findings that are supported by clear and convincing reasons based on substantial evidence

24

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Because treating doctors are employed

25

to cure and have a greater opportunity to know and observe the patient as an individual,

26

their opinions are given greater weight than the opinions of other physicians. Rodriguez

27

v. Bowen, 876 F.2d 759 (9th Cir. 1989). If the treating physician’s medical opinion is

28

inconsistent with other substantial evidence in the record, “[t]reating source medical

-7-

1

opinions are still entitled to deference and must be weighed using all of the factors7

2

provided in 20 C.F.R. § 404.1527.” SSR 96-2p. A treating physician’s opinion that is

3

consistent with the medical evidence will be given controlling weight, and even if it is

4

inconsistent with the medical evidence, it is still entitled to deferential treatment. (Id.) In

5

many cases, a treating source’s medical opinion will be entitled to the greatest weight and

6

should be adopted, even if it does not meet the test for controlling weight. 20 C.F.R. §§

7

404.1527, 416.927.

8

“The subjective judgments of treating physicians are important, and properly play

9

a part in their medical evaluations. Accordingly, the ultimate conclusions of those

10

physicians must be given substantial weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th

11

Cir. 1988). The ALJ must give a treating physician’s opinion more weight than a non-

12

treating physician’s opinion. Reddick, 157 F.3d at 725.

13

In general, opinions of physicians who do not have a treatment relationship with a

14

claimant are weighed by stricter standards, based “to a greater degree on medical

15

evidence, qualifications, and explanations for the opinions,” than are required of treating

16

physicians. SSR 96-6p (1996); see generally 20 C.F.R. § 404.1527, § 416.927 (2005).

17

Further, more weight is given to the opinions of a specialist regarding medical issues

18

related to their specialty than to the opinions of a source who is not a specialist. 20

19

C.F.R. § 404.1527 (2005).

20

examination of Tanaskovic is “given less weight than the physicians who treated her.”

21

Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004).

The opinion of a physician who conducted only one

22

RFC Form. It is undisputed that Dr. Ashamalla’s RFC Form described limitations

23

that render Tanaskovic disabled. (Tr. 68) The ALJ opinion gave “little weight” to Dr.

24

Ashamalla’s opinion because “the doctor’s treatment notes fail[ed] to support his

25

opinion.” (Tr. 21) The ALJ provided four reasons to justify this conclusion. (Tr. 20-21)

26
27
7

28

Factors include length of treatment relationship and frequency of examination,
nature and extent of the treatment relationship, supportability, consistency, specialization
and other factors.
-8-

1

According to Tanaskovic, these reasons do not provide a sufficient explanation for

2

discounting the opinion of a treating provider. (Doc. 25 at 6-8) The Court agrees.

3

First, the ALJ discounted the RFC Form because Dr. Ashamalla’s “treatment notes

4

consistently document the severity of her condition [as] does not significantly interfere

5

with function.” (Tr. 20) However, a review of his treatment notes shows that this

6

notation only appears when describing the “severity scale” of “side effects.” (Tr. 765,

7

769) The Commissioner agrees that this finding was in error but argues that the Court

8

should find it was harmless because Tanaskovic has not shown prejudice and because the

9

ALJ gave additional reasons for discounting Dr. Ashamalla’s opinion. (Doc. 26 at 18)

10

Even assuming that this error was harmless, the Court cannot adopt this argument

11

because the ALJ’s additional explanations are not sufficient to justify the decision to

12

award little weight to Dr. Ashamalla’s opinion.

13

Next, the ALJ noted that Dr. Ashamalla “classified her global status as much

14

improved on nearly every visit.” (Tr. 20-21) The ALJ opinion cites only to the August

15

2013 and September 2013 visits which does not constitute “nearly every visit.”

16

Moreover, these “much improved” notations must be read along with the rest of Dr.

17

Ashamalla’s medical notes. The August 2013 treatment records’ “history of present

18

illness” section8 states:

19
20
21
22
23

Pt is feeling a bit better. She requested to fill paperwork for disability as she
lives with family in a very vulnerable financial status and she tried to work
in the past, but couldn’t as “I can’t be around people.” She currently gets
food stamps. She c/o of still getting nightmares, inability to sleep, she “still
see[s] the man without head and hear[s] his voice but less often than
before.” Pt was on 4 mg of risperidone but Decreased dose due to marked
sedation and being groggy at AM. She denied DTO/DTS. Mostly coherent
during the interview with restricted affect.

24
25
26
27
28

8

The format of the printed medical records makes it impossible to ascertain
whether Dr. Ashamalla reaffirmed the check-box portion of his notes during each visit or
whether he made these notations at her first visit and the electronic medical records
software defaulted to repeating the notes at each visit. However, it is clear that the
“History of Present Illness” section was a narrative that Dr. Ashamalla completed at each
visit with Tanaskovic.
-9-

1

[sic] (Tr. 769)

2

section states:

3

Pt is c/o of voices still the same. she states risperidone 2 mg helped her the
most. She is c/o of anxiety that Neurontin didn’t help with. She still have
nightmares. She was tearful as symptoms still the same. she stated that her
anxiety is overwhelming and she can’t got out of home in the street.
Denied DTO/STS/AVH/drug or ETOH abuse. [as in original]

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

The September 2013 treatment records’ “history of present illness”

[sic] (Tr. 765)

Ignoring these notations and instead relying on a generic “much

improved” check box is impermissible cherry picking. Garrison v. Colvin, 759 F.3d 995,
1017 (9th Cir. 2014) (“Reports of ‘improvement’ in the context of mental health issues
must be interpreted with an understanding of the patient’s overall well-being and the
nature of her symptoms.”)
Next, the opinion simply states, “GAF 50.” (Tr. 21) Without more, this does not
add support to the ALJ’s evaluation of the RFC Form, although the Court notes that this
is a low GAF score that could have supported a finding of impairment. See, e.g.,
McFarland v. Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 2008) (discussing GAF score of
50).9
Finally, the ALJ opinion cites to Tanaskovic’s August 2013 treatment notes for
support that her symptoms were improving and that she was stable with medical
management. (Tr. 21) As noted above, this neither accurately captures the entirety of the
August 2013 record nor does it acknowledge the rest of Dr. Ashamalla’s treatment
records.
Collectively, these explanations do not constitute “findings that are supported by
clear and convincing reasons based on substantial evidence.” Lester, 81 F.3d at 830.
Accordingly, the ALJ did not provide a legally sufficient explanation to discount Dr.
Ashamalla’s opinion.

26
9

27
28

Several paragraphs later, the ALJ reviewed and rejected the GAF scores found in
the record. (Tr. 21) The scores ranged from 50 to 65 and were rejected because they
were “subjectively assessed scores [that] reveal[ed] only snapshots of impaired and
improved behavior.” However, this explanation is not tied to Dr. Ashamalla’s treatment
notes.
- 10 -

1

Reviewing Physicians. The ALJ gave great weight to the assessments of the

2

reviewing physicians because they were “generally consistent with the greater objective

3

medical evidence of record.” (Tr. 21) Tanaskovic argues that the ALJ elevated the

4

opinion of the non-treating physicians without a sufficient justification, these opinions are

5

entitled to less weight because the reviewing physicians did not testify at the hearing, and

6

their stated limitations were not addressed by the ALJ and were not incorporated into the

7

final RFC. (Doc. 25 at 11-13; Doc. 34 at 7-9) The Commissioner argues that the ALJ

8

provided a sufficient explanation that was supported by the record. (Doc. 26 at 17)

9

As Tanaskovic points out, the ALJ gave great weigh to the reviewing physician’s

10

opinions but, without explanation, did not adopt their RFCs. (Tr. 21) This was a

11

violation of Social Security Ruling 96-8p which requires that, “[i]f the RFC assessment

12

conflicts with an opinion from a medical source, the adjudicator must explain why the

13

opinion was not adopted.” See 1996 WL 374184, at *7. This leaves the ALJ’s reliance

14

on the non-examining physician’s opinions devoid of legal support. Accordingly, it

15

cannot stand.

16

REMAND

17

The decision to remand a case for additional evidence or for an award of benefits

18

is within the discretion of this court. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.

19

1989). The court can remand a case with instructions to award benefits when

20
21
22
23
24
25
26
27
28

(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.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Here, all three parts of this test
have been met.

First, the record was fully developed and further administrative

proceedings would impermissibly allow the “ALJ to have a mulligan.” Id. at 1021.
Second, as described above, the ALJ’s decision did not provide sufficient reasons for
rejecting the opinion of Tanaskovic’s treating physician, Dr. Ashamalla. Moreover, the
ALJ did not provide a sufficient explanation for rejecting the RFC limitations proposed
- 11 -

1

by the non-examining physicians. Finally, if the ALJ had credited as true the evidence

2

from Dr. Ashamalla, the ALJ would be required to find that Tanaskovic was disabled.

3

(Tr. 68)

4

IT IS THEREFORE ORDERED that Tanaskovic’s claim for disability is

5

remanded to the Commissioner of the Social Security Administration for an award of

6

benefits.

7
8
9

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly. The judgment will serve as the mandate of this Court.
Dated this 31st day of March, 2017.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 12 -