Pedersen v. Commissioner Social Security Administration
Filing
15
OPINION AND ORDER: Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED and REMANDED for further proceedings. On remand, the ALJ should: Consider the opinion of Plaintiff's treating therapist Lark Lovejoy and either credit that opinion as true or provide legally sufficient reasons for discounting it. Signed on 6/17/2019 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KRISTYN P., 1
Civ. No. 1:18-cv-00819-AA
Plaintiff,
OPINION & ORDER
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
AIKEN, District Judge:
Plaintiff Kristyn P. seeks judicial review of the final decision of the Commissioner of
Social Security ("Commissioner").
The decision of the Commissioner is REVERSED and
REMANDED for further proceedings.
BACKGROUND
On February 25, 2014, Plaintiff filed an application for supplemental security income
alleging disability beginning May 25, 2008. 2 Tr. 16. The claims were denied initially and upon
reconsideration. Id. At Plaintiff's request, a hearing was held before an administrative law judge
("ALJ'') on January 30, 2017. Id On February 24, 2017, the ALJ issued a decision finding
Plaintiff not disabled. Tr. 30. The Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the Commissioner. Tr. 1. This appeal followed.
'In the interest of privacy, this opinion uses only first name and the initial of the last name of the non-governmental
party or parties in this case. Where applicable, this opinion uses the same designation for a non-governmental
party's immediate family member.
'The alleged onset date is prior to the date of an unfavorable determination on an earlier disability application filed
by Plaintiff. Tr. 16. The ALJ assumed and denied an implied request to reopen the prior unfavorable determination.
Id.
Page I - OPINION & ORDER
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which ... has lasted or
can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.
§ 423(d)(l )(A). "Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm 'r,
648 F.3d 721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or
equal one of a list of specific impairments described in the regulations? (4) Is the
claimant able to perform any work that he or she has done in the past? and (5) Are
there significant numbers of jobs in the national economy that the claimant can
perform?
Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d at
953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the claimant
is not disabled. Bustamante, 262 F.3d at 953-54.
THE ALJ'S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not
engaged in substantial gainful activity since the application date, February 25, 2014. Tr. 18. The
Page 2 - OPINION & ORDER
ALJ determined Plaintiff had the following severe impairments: asthma, pain syndrome variously
diagnosed to include fibromyalgia and polyarthralgia, mental impairment (variously diagnosed as
including somatic symptom disorder, alcohol use disorder, in sustained remission, amphetamine
use disorder, in sustained remission, dependent personality disorder, post-traumatic stress disorder,
and major depressive disorder). Id. The ALJ determined Plaintiffs impairments did not meet or
equal a listed impairment. Tr. 19.
The ALJ determined Plaintiff had the RFC to perform a range of light work with the
following additional restrictions: climbing of ladders, ropes, or scaffolds must be precluded
entirely from work duties as assigned; within the assigned work area there must be no exposure to
hazards such as machinery or heights; assigned work must be limited to simple 1 or 2 step tasks,
which must be learned in 30 days or less by brief demonstrations and the tasks must have minimal
change in the tasks as assigned; contact with supervisors, coworkers, and the general public must
be limited to no more than occasional. Tr. 20-21.
The ALJ noted Plaintiff was 28 years old on the application date, has limited education,
and is able to communicate in English. Tr. 28. The ALJ found Plaintiff has no past relevant work.
Id. Based on her RFC, the ALJ determined Plaintiff was able to perform work as a garment sorter,
laundry folder, or bottle line attendant at the light exertional level. Tr. 29. In the alternative, the
ALJ determined that Plaintiff was able to perform work as an addresser/sorter, optical final
assembler, and cutter paster at the sedentary exertional level. Id. As a consequence, the ALJ
determined Plaintiff was not disabled. Tr. 30.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
Page 3 - OPINION & ORDER
42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence "means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389,401 (1971) (citation and internal
quotation marks omitted). In reviewing the Commissioner's alleged errors, this Court must
weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion."
A1artinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
When the evidence before the ALJ is subject to more than one rational interpretation,
courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala,
53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did not invoke in making its decision.
Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's
decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency's determination." Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiff alleges the ALJ erred by (1) failing to properly consider Plaintiffs pseudoseizures;
(2) failed to properly weigh medical opinion evidence concerning Plaintiffs rheumatological
condition; (3) failed to properly consider "other medical source" opinion evidence concerning
Plaintiffs mental limitations; and (4) failed to consider relevant VE testimony at step five of the
sequential analysis.
I.
Pseucloseizurcs
Plaintiff contends that the ALJ erred by discounting Plaintiffs pseudoseizure disorder. As
a preliminary matter, Plaintiff asserts that the ALJ entirely failed to account for Plaintiffs
Page 4 -OPINION & ORDER
pseudoseizures at steps two or three of the sequential analysis.
However, at step two of the
analysis the ALJ included "somatic symptom disorder" as one of Plaintiffs severe impairments.
Tr. 18. Under the regulations, pseudoseizures are included under somatic symptom disorders. 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(B)(6)(a). As for step 3, the ALJ expressly considered
the "severity of the mental impairments, considered singly and in combination, do not meet or
medically equal the criteria list of listings 12.04, 12.06, 12.07, and 12.08." Tr. 19. Listing 12.07
is the appropriate listing for pseudoseizures. 20 C.F.R. Pt. 404, Subpt. 2, App. 1, § 12.00(B)(6).
Plaintiff does not assert that her pseudoseizure condition satisfies the requirements of 12.07 and
so the Court does not consider that issue. On this record, the ALJ appropriately addressed
Plaintiffs pseudoseizures at steps two and three.
More substantively, Plaintiff argues that the ALJ erred by rejecting the medical opinion
evidence of treating neurologist Michael Steven Narus, D.O., concerning Plaintiffs
pseudoseizures, as well as Plaintiffs own subjective symptom testimony. For the sake of clarity,
the Court will address Plaintiffs subjective symptom testimony below before turning to Dr.
Narus' s opinion in the next section.
To determine whether a claimant's testimony is credible, an ALJ must perform a two-stage
analysis. 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must
produce objective medical evidence of an underlying impairment that could reasonably be
expected to produce the symptoms alleged. Molina v. As/rue, 674 F.3d 1104, 1112 (9th Cir. 2012),
At the second stage of the credibility analysis, absent evidence of malingering, the ALJ must
provide clear and convincing reasons for discrediting the claimant's testimony regarding the
severity of symptoms. Carmickle v. Comm 'r, 533 F.3d 1155, 1160 (9th Cir. 2008).
Page 5 - OPINION & ORDER
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014).
An ALJ may use "ordinary techniques of credibility
evaluation" in assessing a claimant's credibility, such as prior inconsistent statements concerning
the symptoms, testimony that appears less than candid, or a claimant's daily activities. Id
"General findings are insufficient; rather, the ALJ must identify what testimony is not credible and
what evidence undermines the claimant's complaints." Id. (internal quotation marks and citations
omitted).
In this case, Plaintiff testified that her seizures, along with her other impairments, prevent
her from working. Tr. 44. Plaintiff testified that she had two or three seizures per week, lasting
up to ten minutes at a time. Tr. 47. The seizures leave Plaintiff feeling exhausted and lifeless,
with a "horrible headache." Tr. 48. Plaintiff testified that if she had a seizure while working she
would have to go home and that if she experienced a seizure before work, she would have to call
in sick. Id. It takes up to three days for Plaintiff to recover fully from a seizure. Tr. 52. Plaintiff
testified that she is taking medication for the seizures, but that she still experiences seizures at least
twice per week. Tr. 48. Plaintiff estimated that her seizures would result in her missing work
"around 50% of the time." Tr. 51.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but that her statements concerning the intensity,
persistency, and limiting effects of the symptoms was not entirely consistent with the objective
medical evidence and other evidence in the record. Tr. 25. Although Plaintiff testified at the
hearing that she experienced multiple seizures per week, Plaintiff's medical records indicate that
her seizures are much less frequent. Plaintiff reported that she had seizures as a child but that her
Page 6 - OPINION & ORDER
seizure disorder was cured by a prayer group when she was 12 years old and she was tapered off
medication. Tr. 976. Plaintiff reported that she began experiencing seizures again in 2008, with
a second seizure in 2014. Id.; see also Tr. 926 (Plaintiff reported a single seizure in 2008, with a
second in 2014, and three more in 2015). Plaintiff had three seizures in August 2015, with a fourth
in October 2015. Tr. 976. On December 8, 2015, Plaintiffs primary treating physician repo1ied
that Plaintiff was on medication and was "currently not having seizures," Tr. 1029, although a note
from February 2016 indicates that Plaintiff had "some type of seizure" on December 19, 2015. Tr.
980. On May 3, 2016, Plaintiff reported to Dr. Narus that she had had two seizures in a row, one
month prior. Tr. 983. On May 23, 2016, Plaintiff told her primary treating physician that she had
had six seizures since her last visit. Tr. 1036. In June 2016, however, Plaintiff denied having
seizures, headaches, or fainting. Tr. 1083. Plaintiff was evaluated from August 8 to 11, 2016, and
was tapered off her medication and experienced seizures. Tr. 985. During that unmedicated
period, Plaintiff"had at least 6 events." Id. On August 12, 2016, however, Plaintiff reported that
she had gone up to two weeks without a seizure and estimated that she had experienced between
five and ten seizures in the last four months. Tr. 926.
The record clearly indicates a seizure disorder and, as noted, the ALJ accepted
pseudoseizures as a severe impairment as "somatic symptom disorder." However, Plaintiffs
reports to her treatment providers indicate that she experiences the seizures much less frequently
than she claimed in her hearing testimony. Tr. 23-24. Such prior inconsistent statements are a
valid consideration in assessing the credibility of Plaintiffs subjective symptom testimony
concerning her seizure disorder. On this record, the Court concludes that the ALJ provided clear
and convincing reasons for discounting Plaintiffs testimony with respect to her pseudoseizures.
Page 7 - OPINION & ORDER
Finally, Plaintiff asserts that the ALJ erred by ignoring the vocational expert ("VE")'s
testimony concerning the willingness of employers to hire someone with a seizure disorder.
During the hearing, Plaintiffs attorney and the VE had the following exchange:
Q: And if someone had a medical condition such as seizures and/or epilepsy, but
we'll call it seizures for this where special precautions would need to be taken place
in the workplace to protect them, you know from their head or the ground or even
breathing or things like that, is that something that a competitive employer might
frown about or be worried about having to accommodate?
A: You know they're going to be-you know if the seizures are-if there's
unpredictability with the seizures and they're uncontrollable with medication it's a
huge liability for an employer. It's a workers' comp claim just screaming, so it'sit's a-it'd be difficult to even secure a job if that seizure activity were disclosedQ: Okay.
A:------due to the liability issue.
Tr. 58-59.
Under the regulations, an individual is not disabled if her residual functional capacity and
vocational abilities make it possible for her to do with which exists in the national economy, but
she remains unemployed due to "the hiring practices of employers" or the fact that the individual
"would not actually be hired" to do work she could otherwise do. 20 C.F.R. § 416.966(c)(3), (7).
The VE's testimony concerning the reluctance of employers to hire an individual with a seizure
disorder is not probative of whether work consistent with Plaintiffs RFC existed in significant
numbers in the national economy. The ALJ did not, therefore, err in failing to discuss or account
for that testimony.
II.
Medical Opinion Evidence
Plaintiff asserts that the ALJ erred by rejecting the opinion of treating neurologist Dr. Narus
with respect to Plaintiffs pseudoseizure disorder; treating physician Richard Daniel Heyerman,
Page 8 - OPINION & ORDER
M.D., concerning Plaintiffs physical limitations; and Lark L. Lovejoy, M.S., Q.M.H.P., L.P.C.,
concerning Plaintiffs mental limitations.
The ALJ is responsible for resolving conflicts in the medical record. Carmickle, 533 F.3d
at 1164. "As a general rule, more weight should be given to the opinion ofa treating source than
to the opinion of doctors who do not treat the claimant[.]" Turner v. Comm 'r, 613 F.3d 1217, 1222
(9th Cir. 20 I 0) (internal quotation marks and citation omitted).
An ALJ may reject the
uncontradicted medical opinion of a treating or examining physician only for "clear and
convincing" reasons supported by substantial evidence in the record. Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject the contradicted opinion of a treating or
examining doctor by providing "specific and legitimate reasons that are supported by substantial
evidence." Id
A. Dr. Narus
Dr. Narus treated Plaintiff for her peudoseizures. Tr. 935. In his Seizure Medical Source
Statement, Dr. Narus indicated that Plaintiff suffered from pseudo-seizures during which she
would lose consciousness. Id. Dr. Narus reported that Plaintiff experienced seizures twice per
week on average, particularly in the evenings, and that stress or exertion could precipitate a seizure.
Tr. 935-36.
In the aftermath of a seizure, Plaintiff experiences confusion, paranoia, severe
headaches, muscle strain, irritability, exhaustion, and difficulty communicating, lasting several
hours. Tr. 936. Dr. Narus reported that Plaintiff is "wiped out" for two days after experiencing a
seizure. Id. Dr. Narus opined that Plaintiff was incapable of even "low stress" work and that if
placed in a competitive job "she would have [a] seizure." Id. Dr. Narus believed that Plaintiff
could sit and stand or walk for less than two hours in and eight-hour workday and that she could
only rarely lift less than ten pounds. Tr. 937. Dr. Narus believed that Plaintiff would frequently
Page 9 - OPINION & ORDER
require time aware from work or unscheduled breaks as a result of her seizure disorder and opined
that Plaintiff"is unable to work permanently." Tr. 938. In his Physical Medical Source Statement,
Dr. Narus opined repeatedly that Plaintiff is "totally and permanently disabled," "can not work at
all," and "is unable to work ever in the future."
3
Tr. 1116-18.
The ALJ assigned "little weight" to Dr. Narus's opinion, finding that it was "wholly
inconsistent with office visit notes documenting infrequent pseudo-seizure activity and normal
neurological examination throughout the claimed period of disability." Tr. 26. As discussed in
the previous section, the medical records indicate that the frequency of Plaintiffs seizure episodes
was substantially less than reported by both Plaintiff and Dr. Narus. Some of the contradictory
medical records are Dr. Narus's own treatment notes. Tr. 976 (November 25, 2015, reporting a
single seizure in 2008, a second in 2014, and three seizures in August 2015, with a fomih in
October 2015); 980 (Plaintiff had "some type of 'seizure' in the MRI scanner on 12/19/15."); 983
(May 3, 2016, reporting two seizures in a row approximately one month prior).
Such inconsistencies constitute a clear and convincing reason for not relying on a
physician's medical opinion. Bayliss, 427 F.3d at 1216. Although some records indicate more
frequent seizures than others, the ALJ reviewed the longitudinal record and reasonably concluded
that it indicated seizures much less frequent than Dr. Narus opined.
Even if the record is
susceptible to more than one interpretation, the Court must defer to the ALJ's reading, if it is
reasonable. Batson, 359 F.3d at 1198. On this record, the Court concludes that the ALJ did not
err by assigning reduced weight to Dr. Narus's opinion concerning Plaintiff's pseudoseizures.
3 Dr.
Narus's opinion concerning the ultimate issue of disability is offered repeatedly, and somewhat unhelpfully, in
lieu of an opinion concerning various categories of functional limitation. Tr. 1116-18. As the ALJ notes, Tr. 27, the
determination of disability is reserved to the Commissioner and so Dr. Narus's opinion on that point is not entitled
to any special significant weight. 20 C.F.R. § 416.927(d).
Page 10 - OPINION & ORDER
B. Dr. Heyerman
Dr. Heyerman was Plaintiffs treating physician. On August 31, 2016, Dr. Heyerman
submitted a Physical Medical Source Statement concerning Plaintiffs rheumatoid arthritis. Tr.
972-75. Dr. Heyerman indicated that Plaintiff suffers from constant multi-joint pain that waxes
and wanes and worsens with activity. Tr. 972. In terms of clinical findings and objective signs,
Dr. Heyerman reported that Plaintiff suffers from tender, swollen joints. Id. Dr. Heyerman opined
that Plaintiff could sit or stand for thirty minutes at a time and that, with prolonged sitting,
Plaintiffs legs should be elevated thirty degrees due to swelling in her joints. Tr. 973-74. Dr.
Heyerman indicated that Plaintiff could occasionally lift and carry less than ten pounds, but never
ten or more pounds and that Plaintiff could never twist, stoop, crouch/squat, climb stairs, or climb
ladders. Tr. 974. Dr. Heyerman checked a box indicating that Plaintiff had significant limitations
with reaching, handling, or fingering, but wrote "N.A." in the section where he would indicate the
percentage of time during a workday that Plaintiff could use her hands, fingers, and arms. Id. Dr.
Heyerman believed Plaintiff would be "off task" for 25% or more of a typical workday and that
she would be absent four or more days per month as a result of her impairments. Tr. 975. Dr.
Heyerman opined that, although Plaintiffs impairments were likely to produce good days and bad
days, she would be incapable of even "low stress" work. Id.
The ALJ found the "extreme functional limitations outlined in [Dr. Heyerman's] checkbox
assessment" were unsupported by his own treatment notes, as well as those of other providers. Tr.
27. "There is little to no objective evidence supporting limitations assessed which suggests Dr.
Heyerman based this assessment on the claimant's self-reported physical capabilities, reviewed
and completed at an office visit on August 31, 2016." Id. Consequently, the ALJ gave "more
Page 11 -OPINION & ORDER
weight" to Dr. Heyerman's treatment notes and "little to no weight to Dr. Heyerman's opinion as
stated in his medical source statement." Id.
In particular, the ALJ noted the lack of evidence for edema or swelling in Dr. Heyerman's
treatment notes. Tr. 27. Although Dr. Heyennan's notes indicate that Plaintiff was positive for
arthralgias, see, e.g., Tr. 1039, 1041, there is no mention of edema or the joint swelling referenced
in his function report. Similarly, other medical sources indicate no edema or swelling. See, e.g.,
Tr. 750 ("She exhibits no edema."); 860 ("No clubbing, cyanosis or edema."); 864 (same); 868
(same); 1053-54 (no clubbing, cyanosis, or edema found during rheumatology consultation); 105657 (same); 1083 ("No abnormal edema" in extremities during examination); 1105 ("No lower
extremity edema appreciated," and "exhibits no edema."); 1113 ("Negative for joint swelling"
during examination).
"Incongruity" between a physician's questionnaire responses and the medical records
constitutes a specific and legitimate reason for rejecting the physician's opinion concerning the
individual's limitations. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). On this
record, the Court concludes that the ALJ provided an adequate reason for assigning reduced weight
to Dr. Heyerman's function report.
Finally, Plaintiff argues that the ALJ erred by failing to explicitly consider the factors
provided in 20 C.F.R. § 416.927 to determine the weight to be given to a treating physician's
opinion, citing Trevizo v. Benyhi/1, 871 F.3d 664 (9th Cir. 2017). These factors include the length
of the treatment relationship and the frequency of examination, the opinion's suppotiability, the
opinion's consistency, and the physician's specialization, if any. 40 C.F.R. § 416.927(c)(2)-(6).
Although these factors must be considered, the ALJ is not required to specifically address each
one. See, e.g., Kelly v. Ber,yhill, 732 F. App'x 558, 562 n.4 (9th Cir. 2018) (in the context of20
Page 12 - OPINION & ORDER
C.F.R. § 404.1527(c), the ALJ "is not required to make an express statement that she considered
all the factors outlined," so long as there is some indication that the factors were considered)
(internal quotation marks omitted); Hai'ris v. Colvin, 584 F. App'x 526, 527 n.1 (9th Cir. 2014)
("Not every factor for weighing opinion evidence will apply in every case.") (internal quotation
marks and citation omitted, alterations normalized).
In this case, the ALJ did not explicitly mention each of the factors, but instead
acknowledged Dr. Heyerman's treating physician relationship with Plaintiff and expressly cited
and discussed multiple treatment notes covering nearly a year. Tr. 27. The ALJ also credited Dr.
Heyerman's treatment notes over his function report. Id. On this record, the Court concludes there
is a sufficiently clear indication that the ALJ considered the relevant factors when weighing Dr.
Heyerman's opinion.
C. LPC Lovejoy
Unlike Dr. Narus and Dr. Heyerman, Ms. Lovejoy is considered an "other medical source,"
and so different standards are applied for consideration of Ms. Lovejoy's opinion. While opinions
from non-acceptable medical sources may not be given controlling weight, their opinions may be
used in determining the severity of the claimant's impairments and how it affects the claimant's
ability to work. SSR 06-03p, available at 2006 WL 2329939, at *3. The ALJ may reject the
competent testimony of"other medical sources" for reasons "germane to each witness." Molina,
674 F.3d at I 11 I. Germane reasons may include a finding that the testimony contradicts the
witness's own earlier testimony or that of other medical specialists, or that the witness was biased.
Dale v. Colvin, 823 F.3d 941, 944-45 (9th Cir. 2016).
On October 5, 2016, Ms. Lovejoy submitted a letter describing Plaintiffs mental health
limitations. Tr. 1019-21. Ms. Lovejoy diagnosed post-traumatic stress disorder and bipolar II
Page 13 - OPINION & ORDER
disorder, current episode depressed, severe. Tr. 1019. Ms. Lovejoy described a number of
symptoms and limitations Plaintiff experiences as a result of her mental health conditions. Tr.
1019-21. Ms. Lovejoy also submitted a Mental Medical Source Statement in which she opined
that Plaintiff was "unable to meet competitive standards" in most of the relevant areas. Tr. 104752. Ms. Lovejoy believed that Plaintiffs symptoms would result in four or more absences per
month. Tr. 1051.
The ALJ did not discuss Ms. Lovejoy's opinion in formulating Plaintiffs RFC. The
Commissioner contends that the failure to address Ms. Lovejoy's opinion is harmless because the
ALJ otherwise evaluated Plaintiffs mental impairments and concluded that they would not prevent
her from performing simple work. In similar circumstances, the Ninth Circuit has held that the
failure to discuss or give reasons for discounting the opinion of a treating therapist was not
harmless error "because we cannot conclude that 'no reasonable ALJ, when fully crediting the
testimony, could have reached a different disability determination."' Talley v. Astrue, 400 F.
App'x 167, 169 (9th Cir. 2010) (quoting Stout, 454 F.3d at 1056).
For the same reason, this Court cannot conclude that the failure to discuss or provide
reasons for discounting Ms. Lovejoy's opinion was harmless.
III.
Step Five
The ALJ determined that Plaintiff has moderate limitations in concentration, persistence,
and pace. Tr. 19. In the VE hypothetical, the ALJ translated that limitation into a restriction that
"the assigned work must be limited to simple tasks of one or two steps which can be learned within
30 days on the job or through a brief demonstration." Tr. 55-56. Plaintiff argues that this RFC
and VE hypothetical fails to capture a moderate limitation in concentration, persistence, and pace.
Page 14 -OPINION & ORDER
In formulating Plaintiffs RFC, the ALJ found that "[m]ental health limitations due to
identified severe mental medically determinable impairments, preclude the performance of
complex skilled tasks." Tr. 24. "Appropriate limitations, which reflect the moderate degree of
limitation as established in the record must limit the claimant to simple tasks with additional
limitations as described above in the residual functional capacity assessment." Id In support of
that conclusion, the ALJ relied on the opinions of reviewing psychologists Bill Hennings, Ph.D.,
and Irmgard Friedburg, Ph.D. Tr. 26.
In Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), the Ninth Circuit held that
"an ALJ's assessment of a claimant adequately captures restrictions related to concentration,
persistence, or pace where the evidence is consistent with restrictions identified in the medical
testimony." Id at 1173-74; see also Vanblaricum v. Colvin, No. 6:13-CV-00106-BR, 2014 WL
991834, at *10 (D. Or. Mar. 13, 2014) (a restriction to "unskilled work of routine, repetitive tasks
with simple instructions" and familiar detailed tasks was sufficient to capture a moderate limitation
in concentration, persistence, and pace when that limitation was supported by the opinion of a nonexamining psychologist).
In this case, both Dr. Hennings and D. Friedburg assessed moderate limitations in
Plaintiffs ability to carry out detailed instructions and her ability to maintain attention and
concentration for extended periods. Tr. 72, 86. In functional terms, both reviewing psychologists
opined that Plaintiff"is able to maintain attention and concentration for tasks of 1-2 steps and can
maintain this level of work for a normal 8 hour work day or 40 hour work week." Tr. 72, 86.
The ALJ explicitly relied on the opinions of the non-examining psychologists in translating
Plaintiffs mental limitations into concrete functional terms. Consistent with Stubb-Danielson, the
Page 15 -OPINION & ORDER
ALJ's translations of Plaintiffs limitations was adequate to capture her deficiencies in
concentration, persistence, and pace in both the RFC and the VE hypothetical.
IV.
Remand
In this case, the Court has determined that the ALJ's opinion contains non-harmless errors
and so must determine whether remand should be for further proceedings or for award of benefits.
The decision whether to remand for further proceedings or for the immediate payment of benefits
lies within the discretion of the court. Triechler v. Comm'r, 775 F.3d 1090, 1101-02 (9th Cir.
2014). A remand for award of benefits is generally appropriate when: (1) the ALJ failed to provide
legally sufficient reasons for rejecting evidence; (2) the record has been fully developed, there are
no outstanding issues that must be resolved, and further administrative proceedings would not be
useful; and (3) after crediting the relevant evidence, "the record, taken as a whole, leaves not the
slightest uncertainty" concerning disability. Id at 1100-01 (internal quotation marks and citations
omitted); see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the
standard for determining the proper remedy). The second and third prongs of the test often merge
into a single question: Whether the ALJ would have to award benefits if the case were remanded
for further proceedings. Harman v. Apfel, 211 F.3d 1172, 1178 n.7 (9th Cir. 2000).
In the present case, the ALJ erred by failing to address the opinion of Plaintiffs treating
therapist Lark Lovejoy concerning Plaintiffs mental limitations. Although Ms. Lovejoy assessed
major limitations with respect to numerous areas of mental functioning, Tr. 1049-51, the
Commissioner has identified evidence in the record suggesting a greater degree of function than
indicated by Ms. Lovejoy. See, e.g., Tr. 928 (Plaintiff "reports anxiety and depression are well
controlled,"); 1046 ("Depression with anxiety----{;ontrolled with Effexor and Xanax,"); Tr. 1083
(Plaintiff reports no psychiatric complaints, denies anxiety, depression, and bi-polar disorder). The
Page 16 -OPINION & ORDER
Comt concludes that the reconciliation of Ms. Lovejoy's opinion and the other evidence in the
record is a matter that should be addressed, in the first instance, by the ALJ and so this matter is
remanded for further proceedings.
CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is
REVERSED and REMANDED for further proceedings. On remand, the ALJ should:
Consider the opinion of Plaintiffs treating therapist Lark Lovejoy and either credit that
opinion as true or provide legally sufficient reasons for discounting it.
DATED this
\7f\.-v
day of June, 2019.
)
ANN AIKEN
United States District Judge
Page 17 -OPlNION & ORDER
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