Parker v. Commissioner of Social Security
Filing
27
ORDER GRANTING PLAINTIFF'S SUMMARY JUDGMENT MOTION 15 , DENYING DEFENDANT'S SUMMARY JUDGMENT MOTION 20 , AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS; granting 21 Motion to Strike. Signed by Judge Salvador Mendoza, Jr. (VR, Courtroom Deputy)
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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Sep 19, 2017
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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SEAN F. MCAVOY, CLERK
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ELIZABETH PARKER,
No. 2:16-CV-0087-SMJ
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Plaintiff,
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v.
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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER GRANTING PLAINTIFF’S
SUMMARY JUDGMENT
MOTION, DENYING
DEFENDANT’S SUMMARY
JUDGMENT MOTION, AND
REMANDING FOR FURTHER
ADMINISTRATIVE
PROCEEDINGS
10
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I.
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INTRODUCTION
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Before the Court, without oral argument, are the parties’ cross-motions for
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summary judgment. ECF Nos. 15 & 20. Plaintiff Elizabeth Parker appeals the
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Administrative Law Judge’s (ALJ) denial of Social Security disability insurance
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and supplemental security income benefits. ECF No. 1. Plaintiff contends the ALJ
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erred by disregarding medical opinions, discrediting her testimony, and failing to
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subpoena witnesses. Plaintiff also argues the ALJ displayed an impermissible bias
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against her based on her mental health and indigent status. The Commissioner of
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Social Security (“Commissioner”) asks the Court to affirm the ALJ’s decision.
SUMMARY JUDGMENT
ORDER - 1
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After reviewing the record and relevant authority, the Court is fully informed.
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For the reasons set forth below, the Court finds that the ALJ failed to provide
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specific, clear and convincing reasons supported by substantial evidence to reject
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the medical opinion of Dr. Sanchez and the Veterans Affairs (VA) disability rating.
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Further, the Court cannot find that these were harmless errors. Accordingly, the
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Court denies both motions and remands the case for reconsideration consistent with
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this Order.
II.
8
BACKGROUND1
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At the time of her hearing before the ALJ, Plaintiff was fifty-five years old
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and lived in Seattle. ECF No. 8-2 at 45, 49. Plaintiff suffers from a number of
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conditions including major depressive disorder, anxiety related disorders, and post
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traumatic stress disorder (PTSD). Id. at 19. Plaintiff is a veteran of the United States
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Army and has a degree in journalism from Western Washington University and a
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paralegal certificate from Edmonds Community College. Id. at 45–46. She has not
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worked since 2011. Id. at 46.
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Plaintiff filed applications for disability benefits and supplemental security
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income on October 10, 2012, alleging that her psychological symptoms became
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disabling beginning August 28, 2012. Id. at 15. The claims were denied on March
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The facts are only briefly summarized. Detailed facts are contained in the administrative hearing
transcript, the ALJ’s decision, and the parties’ briefs.
SUMMARY JUDGMENT
ORDER - 2
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5, 2013, and on reconsideration on May 14, 2013. Id. Plaintiff filed a request for
2
hearing on June 17, 2013, and a hearing before ALJ Larry Kennedy was held
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February 3, 2014. Id.
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The ALJ issued his decision on April 2, 2014, concluding that Plaintiff was
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not disabled within the meaning of the Social Security Act during the relevant time
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period. Id. at 12. Plaintiff requested review by the Social Security Appeals Counsel.
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Id. at 10. The Appeals Counsel denied Plaintiff’s request for review of the ALJ’s
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decision on January 28, 2016. Id. at 2.
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Plaintiff filed this action on March 24, 2016. ECF No. 1.
III.
DISABILITY DETERMINATION
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A “disability” is defined as the “inability to engage in any substantial gainful
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activity by reason of any medically determinable physical or mental impairment
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which can be expected to result in death or which has lasted or can be expected to
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last for a continuous period of not less than twelve months.” 42 U.S.C.
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§§ 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step sequential
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evaluation process to determine whether a claimant is disabled. 20 C.F.R.
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§§ 404.1520, 416.920.
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Step one assesses whether the claimant is engaged in substantial gainful
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activities. If so, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not,
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the decision-maker proceeds to step two.
SUMMARY JUDGMENT
ORDER - 3
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Step two assesses whether the claimant has a medically severe impairment
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or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the
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claimant does not, the disability claim is denied. If the claimant does, the evaluation
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proceeds to the third step.
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Step three compares the claimant’s impairment with a number of listed
6
impairments acknowledged by the Commissioner to be so severe as to preclude
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substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1,
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416.920(d). If the impairment meets or equals one of the listed impairments, the
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claimant is conclusively presumed to be disabled. If the impairment does not, the
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evaluation proceeds to the fourth step.
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Step four assesses whether the impairment prevents the claimant from
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performing work he has performed in the past by examining the claimant’s residual
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functional capacity. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able
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to perform his or her previous work, the claimant is not disabled. If the claimant
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cannot perform this work, the evaluation proceeds to the fifth step.
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Step five, the final step, assesses whether the claimant can perform other
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work in the national economy in view of his or her age, education, and work
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experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 482 U.S.
19
137 (1987). If the claimant can, the disability claim is denied. If the claimant
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cannot, the disability claim is granted.
SUMMARY JUDGMENT
ORDER - 4
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The burden of proof shifts during this sequential disability analysis. The
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claimant has the initial burden of establishing a prima facie case of entitlement to
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disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The
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burden then shifts to the Commissioner to show (1) the claimant can perform other
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substantial gainful activity, and (2) that a “significant number of jobs exist in the
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national economy,” which the claimant can perform. Kail v. Heckler, 722 F.2d
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1496, 1498 (9th Cir. 1984). A claimant is disabled only if his impairments are of
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such severity that he is not only unable to do his previous work but cannot,
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considering his age, education, and work experiences, engage in any other
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substantial gainful work which exists in the national economy. 42 U.S.C.
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§§ 423(d)(2)(A), 1382c(a)(3)(B).
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IV.
STANDARD OF REVIEW
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The Court must uphold an ALJ’s determination that a claimant is not disabled
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if the ALJ applied the proper legal standards and there is substantial evidence in the
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record as a whole to support the decision. Molina v. Astrue, 674 F.3d 1104, 1110
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(9th Cir. 2012) (citing Stone v. Heckler, 761 F.2d 530, 531 (9th Cir.1985)).
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“Substantial evidence ‘means such relevant evidence as a reasonable mind might
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accept as adequate to support a conclusion.’” Id. at 1110 (quoting Valentine v.
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Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). This must be more
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than a mere scintilla, but may be less than a preponderance. Id. at 1110–11 (citation
SUMMARY JUDGMENT
ORDER - 5
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omitted). Even where the evidence supports more than one rational interpretation,
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the Court must uphold an ALJ’s decision if it is supported by inferences reasonably
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drawn from the record. Id.; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
V.
4
DISCUSSION
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The ALJ found that (1) Plaintiff has not engaged in substantial gainful
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activity since August 28, 2012; (2) Plaintiff has the following severe impairments:
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major depressive disorder and anxiety related disorders/PTSD; (3) Plaintiff’s
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impairments did not meet or medically equal the severity of any impairment listed
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by the Commissioner as so severe as to preclude substantial gainful activity; (4)
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Plaintiff has the residual functional capacity to perform work at all exertional
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capacity with certain nonexertional limitations; and (5) Plaintiff is capable of
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performing many jobs available in the national economy. ECF No. 8-2 at 19–32.
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Plaintiff challenges only the ALJ’s decision at step four that Plaintiff has the
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residual functional capacity (RFC) to work at all exertional levels with certain
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nonexertional limitations. Specifically, Plaintiff poses the following questions for
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review:
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1.
Did the ALJ commit reversible error by disregarding the opinions of
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Plaintiff’s treating and examining physicians?
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2.
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disability rating?
Did the ALJ commit reversible error by disregarding Plaintiff’s VA
SUMMARY JUDGMENT
ORDER - 6
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3.
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complaints as not credible?
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4.
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discretion?
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5.
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Did the ALJ commit reversible error by dismissing Plaintiff’s
Was the ALJ’s refusal to subpoena Plaintiff’s experts an abuse of
Did the ALJ display impermissible bias against Plaintiff?
A. The ALJ failed to provide specific and legitimate reasons to reject the
medical opinions of Drs. Sanchez and Levitt.
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Plaintiff contends that the ALJ improperly rejected the opinions of Doctors
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Sanchez and Levitt as well as the Global Assessment Functioning (GAF) scores
9
assigned by various treating and examining physicians. These medical opinions are
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conflicted by the State evaluations conducted by Drs. Comrie and Reade. When a
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treating or examining doctor’s opinion is contradicted by the opinion of another
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doctor, the ALJ may reject the treating doctor’s opinion if the ALJ cites “specific
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and legitimate reasons” that are supported by substantial evidence in the record.
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Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.2014). “When evaluating
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conflicting medical opinions, an ALJ need not accept the opinion of a doctor if it is
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brief, conclusory, or inadequately supported by clinical findings.” Thomas v.
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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
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1. The ALJ failed to provide specific legitimate reasons supported by
substantial evidence to reject Dr. Sanchez’s medical opinion.
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Plaintiff argues that the ALJ erred by giving little to no weight to the opinion
SUMMARY JUDGMENT
ORDER - 7
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of Doctor Sanchez, a psychologist employed by the Department of Health and
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Social Services (DSHS). Dr. Sanchez conducted a psychological evaluation of
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Plaintiff in October of 2012. ECF No. 8-7 at 2–6. Dr. Sanchez opined that Plaintiff
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suffered from marked PTSD and found a range of limitations from none to marked
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in her cognitive abilities. Id. Dr. Sanchez concluded that Plaintiff would have
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limitations performing work activities within a schedule, maintaining regular
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attendance at work, and completing a normal workday/week without interruptions
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from psychologically based symptoms. Id. at 4.
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The ALJ gave three reasons for assigning little to no weight to Dr. Sanchez’s
10
opinion. ECF No. 8-2 at 27. First, the ALJ noted that the medical history was based
11
on the claimant’s self-reporting and not an independent review of the medical
12
evidence in the record. Second, the mini-mental status examination revealed that
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Plaintiff was within normal limits except for her concentration with a score of
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28/30. Third, the ALJ found Dr. Sanchez’s description of “marked” PTSD was
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“beyond the diagnoses descriptions in DSM IV and inconsistent with [Plaintiff’s]
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activities of daily living.” ECF no. 8-2 at 28.
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Substantial evidence does not support the ALJ’s finding that Dr. Sanchez’s
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opinion should be discounted because she relied upon Plaintiff’s subjective
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complaints. “[W]hen an opinion is not more heavily based on a patient’s self-reports
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than on clinical observations, there is no evidentiary basis for rejecting the opinion.”
SUMMARY JUDGMENT
ORDER - 8
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Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). The record shows that Dr.
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Sanchez conducted a mental status examination and clinical interview. ECF No. 8-
3
7 at 2–6. Dr. Sanchez provided a medical opinion based on her observations during
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the clinical interview, the objective results of Plaintiff’s mental status examinations
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and Plaintiff’s self-reported symptoms. The ALJ’s decision discounting Dr.
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Sanchez’s assessment to the extent it was based on Plaintiff’s subjective complaints
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is therefore not supported by substantial evidence.
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The ALJ also rejected Dr. Sanchez’s opinion because he found that Dr.
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Sanchez’s assessment of Plaintiff’s symptoms was inconsistent with the mental-
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status examination. Specifically, the ALJ noted that the mental status examination
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was “within limits” on all categories except for concentration. ECF No. 8-2 at 28.
12
A discrepancy in the clinical record is a specific and legitimate reason to discount
13
Dr. Sanchez’s opinion regarding Plaintiff’s mental status limitations. See Bayliss v.
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Barnhart, 427 F.3d 1211 (9th Cir. 2005) (ALJ properly rejected doctor’s statement
15
that claimant could stand or walk for only fifteen minutes when clinical notes taken
16
that same day contradicted that statement). Here, the mini-mental status test
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revealed few problems and Plaintiff scored a 28/30. However, the mental status
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examination is only one factor in Dr. Sanchez’s assessment. Dr. Sanchez also
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reviewed Plaintiff’s social worker notes and conducted a clinical interview with
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Plaintiff. During this interview, Plaintiff revealed that she suffered sexual trauma
SUMMARY JUDGMENT
ORDER - 9
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and abuse, she has been hospitalized twice for suicidal ideation, and that she has
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struggled to maintain steady employment despite her higher education. ECF No. 8-
3
7 at 4. These reports are corroborated in the record. Accordingly, to the extent the
4
ALJ rejected Dr. Sanchez’s opinion because it conflicted with the clinical evidence,
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the ALJ’s determination is not supported by substantial evidence.
6
The ALJ also rejected Dr. Sanchez’s opinion because the “description of
7
‘marked’ posttraumatic stress disorder and depression [is] beyond the diagnoses
8
descriptions in DSM IV and inconsistent with her activities of daily living.” ECF
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No. 8-2 at 28. These reasons also are not supported by substantial evidence. It is
10
true that the DSM-IV does not provide for a specification of “marked” PTSD.
11
However, the DSM-IV does not preclude a provider from noting the severity of a
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condition, and the evaluation form Dr. Sanchez completed does not require strict
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adherence to DSM-IV terms. See ECF No. 8-7 at 3 (section E of the form directs
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providers to list the DSM-IV code as well as how it is supported by clinical
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evidence). Accordingly, the ALJ erred to the extent that he dismissed Dr. Sanchez’s
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opinion based on the supposed discrepancy with the DSM-IV.
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The ALJ’s finding that a diagnosis of PTSD is inconsistent with Plaintiff’s
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activities of daily living is also not supported by substantial evidence. Persistent
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symptoms of PTSD include difficulty concentrating and irritability and outbursts of
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anger. The Diagnostic and Statistical Manual of Mental Disorders, § 309.81 (Am.
SUMMARY JUDGMENT
ORDER - 10
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Psychiatric Ass’n 4th ed.) (1994). These are consistent with Plaintiff’s behavior and
2
reported feelings described in the record. Symptoms associated with the avoidance
3
of stimuli associated with the trauma include a restricted range of affect, feelings of
4
detachment, and diminished participation in significant activities. Id. These, too, are
5
supported in the record. The ALJ has failed to specify how making and selling
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jewelry specifically contradicts Plaintiff’s individual symptoms. The ALJ’s
7
determination that Plaintiff’s activities of daily living are inconsistent with her
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PTSD diagnosis is therefore unsupported by evidence in the record.
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Finally, the ALJ appears to discount Dr. Sanchez’s opinion because Plaintiff
10
did not disclose her marijuana use. An ALJ may consider inconsistent statements
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about a claimant’s drug use to discount credibility. See, e.g., Thomas v. Barnhart,
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278 F.3d 947, 959 (9th Cir. 2002); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir.
13
1999). However, the ALJ does not explain why Plaintiff’s marijuana use
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undermines Dr. Sanchez’s opinion regarding Plaintiff’s mental impairments, and
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Defendant does not attempt to illuminate this comment in its brief. Accordingly, the
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Court finds this is not a specific and legitimate reason to discredit Dr. Sanchez’s
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opinion.
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The Court also concludes that the error in evaluating Dr. Sanchez’s opinion
19
is not harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2011)
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(“[H]armless error principles apply in the Social Security Act context.”). ALJ errors
SUMMARY JUDGMENT
ORDER - 11
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are harmless only if they are “inconsequential to the ultimate nondisability
2
determination” such that the reviewing court “can confidently conclude that no
3
reasonable ALJ, when fully crediting the testimony, could have reached a different
4
disability determination.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015)
5
(citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)).
6
Here, because the ALJ improperly disregarded the opinion of Dr. Sanchez in
7
forming the RFC and Plaintiff was found capable of performing work at all
8
exertional levels with certain nonexertional limitations based on that RFC, the error
9
affected the ultimate disability determination and is not harmless.
11
2. The ALJ’s finding that Dr. Levitt’s opinion is contradicted by the
record is a specific legitimate reason to reduce the weight given to the
opinion, but it is not sufficient to reject the evidence entirely.
12
Plaintiff argues that the ALJ improperly rejected Dr. Levitt’s assessment and
13
opinion that Plaintiff was unable to work due to her disabilities. Dr. Levitt submitted
14
a letter stating that he had treated Plaintiff for over two years and follows up with
15
her regarding various mood disorders and symptoms. ECF No. 8-9 at 135. Based
16
on his experience with Plaintiff, Dr. Levitt believed Plaintiff would experience
17
marked to severe limitation in future employment efforts. The ALJ provided three
18
reasons for rejecting Dr. Levitt’s opinion. ECF No. 8-2 at 28. First, the ALJ
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reasoned that Dr. Levitt’s opinion is not credible “because Dr. Levitt is a resident,
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as a ‘women’s health provider.’” Id. Second, the ALJ stated record does not indicate
10
SUMMARY JUDGMENT
ORDER - 12
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that Dr. Levitt has directly treated Plaintiff for mental health symptoms. Finally, the
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ALJ noted that Dr. Levitt did not refer to Plaintiff’s marijuana use, jewelry selling
3
or the fact that he referred Plaintiff to a compensated work therapy program.
4
20 C.F.R. § 404.1527(c) sets out the basis for assigning weight to medical
5
opinions. ALJs are to examine the relationship between the claimant and the source
6
of the medical opinion, assigning greater weight to treating physicians than
7
examining physicians. ALJ’s also consider the treating relationship, including the
8
nature and length of the relationship. Support for the opinion based on evidence in
9
the medical records, consistency of the opinion with the record as a whole, and the
10
specialty of the provider are also considerations ALJs should account for when
11
assigning weight to a medical opinion. Finally, 20 C.F.R. § 404.1527(c)(6) provides
12
that ALJs can consider any other information which tends to support or contradict
13
the medical opinion.
14
The ALJ’s first reason for rejecting Dr. Levitt’s opinion is unsupported by
15
substantial evidence in the record. The record shows that Dr. Levitt was one of
16
Plaintiff’s treating physicians. He examined and treated her on numerous occasions
17
for over two years. See, e.g., ECF Nos. 8-8 at 2, 169; 8-9 at 27, 36. The Court notes
18
that the fact that Dr. Levitt is a resident in the women’s health clinic does not
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necessarily mean that his practice is limited to the female anatomy. The transcripts
20
from the hearing appear to indicate the ALJ believed Dr. Levitt was the equivalent
SUMMARY JUDGMENT
ORDER - 13
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of an OB/GYN,2 but this is not the case. The record shows that the medical staff in
2
the VA Women’s Clinic operated a general practice. Specifically, several instances
3
in the record indicate Plaintiff’s discussion of her mood and prescriptions for
4
antidepressants with providers housed in the Women’s Clinic. See, e.g., ECF No.
5
8-9 at 65–67 (discusses taking citalopram with Dr. Levitt); id. at 100–01 (discussing
6
possible medication change with Women’s Clinic physician Maryann Overland);
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ECF No. 8-8 at 82–83 (discussing increasing citalopram dosage with Women’s
8
Clinic resident Michael Lenaeus).
9
The fact that Dr. Levitt has not performed a mental status examination on
10
Plaintiff is a specific, legitimate reason to reduce the weight given to Dr. Levitt’s
11
opinion. However, it does not support discrediting his opinion entirely. When
12
evaluating the weight to give a medical opinion, an ALJ may “look at the treatment
13
the source has provided and at the kinds and extent of examinations and testing the
14
source has performed or ordered from specialists and independent laboratories.” 20
15
C.F.R. § 404.1527(c). Here, the record indicates that Dr. Levitt has a reasonable
16
knowledge of Plaintiff’s psychological symptoms. The physician team at the VA
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2
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19
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ALJ: “And then Dr. Levitt, what does he—is he in the Women’s Health Side?”
Plaintiff: “Yes.” ALJ: “Ok. Is he—for physical health?” Plaintiff: “They work as a
team there.” ALJ: “Like OBY—OB-GYN?” Plaintiff: “So they work as a team. So
they, they talk to each other through emails.” ALJ: “Well, what is his specialty?”
Plaintiff: “He is, he’s a resident so I’m not sure what his specialty is, but he does
work in the Women’s Clinic there, and I guess it would be general practice.” ECF
No. 8-2 at 54.
SUMMARY JUDGMENT
ORDER - 14
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communicated regularly across departments regarding Plaintiff’s treatment and
2
care. As the ALJ also acknowledged, the team at the VA worked collaboratively,
3
and Dr. Levitt had access to Plaintiff’s entire record. ECF No. 8-2 at 28.
4
Accordingly, the record does not support rejecting Dr. Levitt’s opinion based on the
5
treatment relationship alone.
6
Dr. Levitt’s referral of Plaintiff to a compensated work therapy (CWT)
7
program at the VA is likewise insufficient to discredit his opinion. The ALJ
8
concluded that Dr. Levitt’s referral of Plaintiff to the CWT was not consistent with
9
a finding that she is totally disabled, however this is not supported by substantial
10
evidence in the record. Dr. Levitt wrote to SSA on January 30, 2014, considerably
11
after he first referred Plaintiff to the CWT program. The record shows that multiple
12
VA counselors and providers noted Plaintiff struggled with the CWT program. See
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ECF No. 8-8 at 98; ECF No. 8-9 at 72 (noting Plaintiff quit the CWT program due
14
to overwhelming anxiety).
15
Finally, the ALJ noted that Dr. Levitt “did not discuss [Plaintiff’s] jewelry
16
business” and “did not mention [Plaintiff’s] marijuana use.” ECF No. 8-2 at 28. The
17
Court interprets this as a finding that Dr. Levitt’s opinion was inconsistent with the
18
record. Unlike the other reasons proffered by the ALJ, this is a specific legitimate
19
reason to reject a medical opinion. Dr. Levitt’s letter contained a description of her
20
diagnoses and how those diagnoses and symptoms impacted Plaintiff’s ability to
SUMMARY JUDGMENT
ORDER - 15
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maintain employment. Dr. Levitt concluded the letter by stating that he did not
2
believe Plaintiff could work at this time. The potentially conflicting instances in the
3
record cited by the ALJ support rejecting the final statement in Dr. Levitt’s letter.
4
However, the ALJ has failed to explain why these support rejecting Dr. Levitt’s
5
medical opinion in its entirety. As one of Plaintiff’s treating physicians, Dr. Levitt’s
6
opinion should normally be accorded great weight. Accordingly, the ALJ’s
7
proffered reasons for finding Dr. Levitt’s opinion conflicts with the record is
8
insufficient to reject his medical opinion in its entirety.
9
10
11
The Court cannot conclude that the ALJ’s error was harmless and therefore
instructs the ALJ to reconsider this evidence on remand.
3. The ALJ gave specific legitimate reasons for rejecting the GAF
scores.
12
Finally, Plaintiff argues that the ALJ erred by rejecting the Global
13
Assessment Functioning (GAF) scores in the record. ECF No. 15 at 13–14. The
14
GAF is a numeric scale used by mental health clinicians to subjectively assess an
15
individual’s overall functioning level. Like other medical opinions, GAF scores are
16
relevant evidence that should be considered and can only be rejected for specific
17
reasons.
18
Here, the ALJ stated two reasons for rejecting the GAF scores. The first
19
amounted to a boilerplate recitation of what GAF scores are and why, as a matter
20
of course, they are not particularly probative of disability. ECF no. 8-2 at 27. This
SUMMARY JUDGMENT
ORDER - 16
1
opinion is at odds with SSA regulations. A GAF score that is assigned by an
2
acceptable medical source is a medical opinion as defined in 20 C.F.R.
3
§§ 404.1527(a)(2) and 516.927(a)(2).
4
However, the ALJ also noted that the GAF scores were inconsistent with the
5
record as a whole. ECF no. 8-2 at 27. The record contains GAF scores of 45, ECF
6
No. 8-8 at 115, 49, ECF No. 8-7 at 2, and 50, ECF No. 8-8 at 155. Scores in this
7
range indicate serious symptoms or serious impairment in social, occupational or
8
school functioning. The ALJ found that these scores did not comport with his
9
findings that Plaintiff was able to complete her activities of daily living with few
10
limitations. ECF no. 8-2 at 27. Although the record in this case is voluminous, the
11
ALJ evaluated and weighed the evidence. The ALJ’s conclusion is supported by
12
substantial evidence.
13
B. The ALJ failed to give specific, persuasive grounds for rejecting
Plaintiff’s VA disability score.
14
Plaintiff next argues that the ALJ erred by rejecting her 70% VA disability
15
rating. Although a VA disability rating does not necessarily compel an ALJ to reach
16
an identical result, “an ALJ must ordinarily give great weight to a VA determination
17
of disability.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). An
18
ALJ may give less weight to a VA disability rating only if he or she gives
19
persuasive, specific, valid reasons for doing so that are supported by the record. Id.
20
An ALJ may not merely rely on the “general ground that the VA and SSA disability
SUMMARY JUDGMENT
ORDER - 17
1
inquiries are different.” Valentine, 574 F.3d at 695. Instead, the distinction must be
2
specific to the individual case such as when the SSA has information that the VA
3
did not. Id.
4
The ALJ here failed to give any valid persuasive reasons for refusing to afford
5
“great weight” to the determination of the VA that Plaintiff was 70% disabled. In
6
support of his decision, the ALJ stated only:
7
8
9
[T]he Veterans Administration has not opined that the claimant was
unemployable in these rating decisions. Although they provided a
basis for their determination and recited GAF scores, they also did not
provide provides [sic.] an individualized assessment that focuses on a
claimant’s ability to perform work in the national economy. Thus, I
give these numeric ratings little to no weight.
10
ECF No. 8-2 at 30.
11
The ALJ’s stated reasons are little more than generalized critiques
12
applied to a specific situation. The fact that the VA and SSA disability ratings
13
differ in the disability calculation—basing the calculation on a “hypothetical
14
person” versus the specific claimant, respectively—is merely a general
15
differentiating feature between the two inquiries. This is also true of the fact
16
that the VA does not account for a claimant’s ability to perform work in the
17
national economy. Neither of these grounds are specific or persuasive under
18
McCartey and Valentine.
19
Again, the Court cannot conclude that this error was harmless. Like
20
the medical opinions, the VA score could have been an important factor in
SUMMARY JUDGMENT
ORDER - 18
1
determining Plaintiff’s RFC. Because the Court cannot say with certainty that
2
no reasonable ALJ could reach a different conclusion if this evidence were
3
considered, the Court instructs the ALJ to reconsider the VA disability rating
4
on remand.
5
C. The ALJ provided specific, clear and convincing reasons for rejecting
Plaintiff’s symptom testimony.
6
Where a claimant presents objective medical evidence of impairments that
7
could reasonably produce the symptoms complained of, an ALJ may reject the
8
claimant’s testimony about the severity of her symptoms only for “specific, clear
9
and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014).
10
An ALJ must make sufficiently specific findings “to permit the court to conclude
11
that the ALJ did not arbitrarily discredit [the] claimant’s testimony.” Tommasetti v.
12
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations omitted). General findings
13
are insufficient. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). ALJs may
14
consider many factors in weighing a claimant’s credibility, including prior
15
inconsistent statements, unexplained failures to seek treatment, and claimant’s daily
16
activities, among others. Tommasetti, 533 F.3d at 1039. Courts may not second17
guess an ALJ’s findings that are supported by substantial evidence. Id.
18
The ALJ provided specific instances to support his determination that
19
Plaintiff’s testimony was not credible. For example, Plaintiff failed to disclose that
20
she was selling jewelry at markets and online. At the hearing, Plaintiff told the ALJ
SUMMARY JUDGMENT
ORDER - 19
1
that she had no other sources of income other than her VA benefits. ECF No. 8-2 at
2
46. However, Plaintiff told a VA vocational rehab counselor that she makes up to
3
$600 per week selling her jewelry. ECF No. 8-8 at 79. Plaintiff was also somewhat
4
evasive when questioned by the ALJ about her use of marijuana. ECF No. 8-2 at
5
52. The ALJ pointed to these instances when making his findings that Plaintiff’s
6
testimony was not credible.
7
The ALJ also noted that Plaintiff’s testimony was inconsistent with the facts
8
in the record. Specifically, he noted that Plaintiff had worked and looked for work
9
during the time Plaintiff alleged she was disabled. See Bray v. Comm’r of Soc. Sec.
10
Admin., 544 F.3d 1219 (9th Cir. 2009) (upholding ALJ’s findings claimant was not
11
credible in part because she continued to work and seek employment after the
12
alleged onset of her disability). After the alleged onset of her disability, Plaintiff
13
continued to make and sell jewelry and to participate in the CWT program until she
14
voluntarily withdrew.
15
Based on the specified inconsistencies in Plaintiff’s testimony and the
16
conflicting evidence in the record, the ALJ’s decision to discredit Plaintiff’s
17
testimony regarding her symptoms is supported by substantial evidence in the
18
record.
19
20
SUMMARY JUDGMENT
ORDER - 20
1
D. The ALJ did not abuse his discretion in denying Plaintiff’s request to
subpoena non-examining physicians.
2
Plaintiff next assigns error to the ALJ’s refusal to subpoena Drs. Comrie and
3
Reade, both non-examining State agency doctors. An ALJ may issue subpoenas for
4
the appearance and testimony of witnesses when “necessary for the full presentation
5
of a case.” 20 C.F.R. § 404.950(d)(1), 416.1450(d)(1). It is an abuse of discretion
6
to deny the claimant’s request for a subpoena and, consequently, her right to cross7
examine where the witness is a “crucial witness” whose findings “substantially
8
contradict the other medical testimony.” Solis v. Schwieker, 719 F.2d 301, 302 (9th
9
Cir. 1983). If a party wishes to subpoena a witness, rather than conduct cross
10
examination through interrogatories, the party must submit a statement of important
11
facts the witness is expected to prove as well as an indication as to why these facts
12
could not be proven without issuing a subpoena. 20 C.F.R. § 404.950(d)(2),
13
416.1450(d)(2).
14
Prior to the hearing, Plaintiff’s attorney, Mr. Rutzick, submitted a written
15
request to subpoena Drs. Comrie and Reade. Mr. Rutzick stated that he planned to
16
question the doctors about discrepancies between their opinions and medical/other
17
evidence of other examining medical professionals as well as their credentials. Mr.
18
Rutzick also indicated that he “expect[ed] to ask questions inter alia touching on
19
their bias.” ECF No. 8-6 at 83. The ALJ denied this subpoena request, stating that
20
SUMMARY JUDGMENT
ORDER - 21
1
it did not meet the regulatory requirements to issue a subpoena under 20 C.F.R.
2
404.950(d)(2).
3
The ALJ did not abuse his discretion in denying Mr. Rutzick’s petition to
4
subpoena Drs. Comrie and Reade. The witnesses were undoubtedly crucial
5
witnesses within the contemplation of Solis. However, the holding in Solis does not
6
require an ALJ to issue subpoenas for every crucial witness. It requires only that
7
claimants have the opportunity to meaningfully cross examine those witnesses. Mr.
8
Rutzick failed to demonstrate why interrogatories would be insufficient to cross
9
examine the doctors on their experience and factual determinations.
10
The Court notes that Mr. Rutzick indicated he planned to ask questions
11
“touching on [the doctors’] bias.” The Solis court recognized that bias is most
12
properly elicited through cross examination. However bias is not a talismanic word
13
triggering the ALJ’s duty to subpoena a witness. Under 20 C.F.R. 404.950(d)(2),
14
parties requesting a subpoena must specify facts they expect to establish through
15
cross examination and explain why interrogatories are insufficient. Mr. Rutzick
16
made no attempt to do so here. Accordingly, the ALJ’s denial of the subpoena
17
request was not an abuse of discretion.
18
E. Plaintiff has failed to establish that ALJ Kennedy is biased against
claimants like Plaintiff.
19
Finally, Plaintiff submits to the Court for review numerous records in support
20
of her allegation that ALJ Kennedy is biased against Plaintiff and claimants like
SUMMARY JUDGMENT
ORDER - 22
1
Plaintiff. Defendant disputes the submission of these materials as outside the scope
2
of permissible evidence in 42 U.S.C. § 405(g) and moves to strike Plaintiff’s
3
declaration. ECF No. 21. Because these materials are outside the scope of the
4
administrative record, the Court finds these materials are not proper for
5
consideration and grants Plaintiff’s motion to strike.
6
42 U.S.C. § 405 governs the judicial review of SSA benefits decisions. The
7
statute limits a federal court’s review to “the pleadings and a transcript of the
8
record.” Id. Sentence Six of 42 U.S.C. § 405(g) provides that the court “may at any
9
time order additional evidence to be taken before the Commissioner of Social
10
Security, but only upon a showing that there is new evidence which is material and
11
that there is good cause for the failure to incorporate such evidence into the record
12
in a prior proceeding.”
13
Here, Plaintiff’s proffered evidence is not part of the administrative record.
14
Plaintiff asserts that she submitted this evidence to the Appeals Council, but that
15
the council did not accept the evidence. ECF No. 15 at 18. If materials that were not
16
before the ALJ are presented to the Appeals Council, the Council must consider
17
them only if they are “new and material.” 20 C.F.R. § 404.970(b), 416.1470(b).
18
Unlike the medical evidence at issue in Taylor v. Comm'r of Soc. Sec. Admin., 659
19
F.3d 1228, 1233 (9th Cir. 2011) the evidence submitted here does not appear to be
20
“new and material” as defined by § 404.970. Moreover, “in rejecting [new]
SUMMARY JUDGMENT
ORDER - 23
1
evidence, the Appeals Council is not required to make any particular evidentiary
2
finding.” Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996) superseded by
3
regulation on other grounds as stated in Boyd v. Colvin, 524 F. App’x 334 (9th Cir.
4
2013). Plaintiff does not argue that the evidence should be considered on remand
5
under Sentence Six of 42 U.S.C. § 405. Accordingly, the Court will not consider
6
the materials and will grant Defendant’s motion to strike.
7
Accordingly, IT IS HEREBY ORDERED:
8
1.
Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED.
9
2.
Defendant’s Motion for Summary Judgment, ECF No. 20, is DENIED.
10
3.
Defendant’s Motion to Strike the Declaration of Becky Lieferman, ECF No.
21, is GRANTED.
11
12
4.
The case is REMANDED to the Commissioner of Social Security pursuant
to 42 U.S.C. § 405(g) for further proceedings consistent with this order.
13
14
5.
JUDGMENT is to be entered in Plaintiff’s favor.
15
6.
The case shall be CLOSED.
16
17
18
19
20
IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
provide copies to all counsel.
DATED this 19th day of September, 2017.
__________________________
SALVADOR MENDOZA, JR.
United States District Judge
SUMMARY JUDGMENT
ORDER - 24
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