Affronte v. Colvin
ORDER ON PLAINTIFF'S COMPLAINT by Judge David W. Christel. (KEB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
ORDER ON PLAINTIFF’S
CASE NO. 2:16-CV-01287-DWC
Plaintiff filed this action, pursuant to 42 U.S.C § 405(g), seeking judicial review of the
denial of Plaintiff’s applications for Supplemental Security Income (“SSI”) benefits. The parties
have consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c), Fed.
R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13. See also Consent to Proceed before a
United States Magistrate Judge, Dkt. 5.
Nancy Berryhill is substituted for her predecessor, Carolyn W. Colvin, as Acting
24 Commissioner of Social Security. Fed. R. Civ. P. 25(d).
ORDER ON PLAINTIFF’S COMPLAINT - 1
After reviewing the record, the Court concludes the Administrative Law Judge (“ALJ”)
2 erred by failing to properly evaluate the opinion of Plaintiff’s treating psychiatrist. Therefore,
3 this matter is reversed and remanded, pursuant to sentence four of 42 U.S.C. § 405(g), for further
PROCEDURAL & FACTUAL HISTORY
On April 30, 2014, Plaintiff filed an application for SSI. See Dkt. 9, Administrative
7 Record (“AR”) 158-66. Plaintiff alleges she became disabled on August 15, 1994, due to bipolar
8 disorder, asperger’s syndrome, cerebral palsy, general anxiety disorder, learning disability,
9 attention deficit-hyperactivity disorder (“ADHD”), obsessive compulsive disorder (“OCD”), and
10 an eating disorder. See AR 158, 209. Plaintiff’s application was denied upon initial
11 administrative review and on reconsideration. See AR 70, 83. A hearing was held before an ALJ
12 on September 16, 2014, at which Plaintiff, represented by counsel, appeared and testified. See
13 AR 29.
On January 16, 2015, the ALJ found Plaintiff was not disabled within the meaning of
15 Section 1614(a)(3)(A) of the Social Security Act. AR 24. Plaintiff’s request for review of the
16 ALJ’s decision was denied by the Appeals Council on June 23, 2016, making that decision the
17 final decision of the Commissioner of Social Security (the “Commissioner”). See AR 1, 20
18 C.F.R. § 404.981, § 416.1481. On July 14, 2015, Plaintiff filed a complaint in this Court seeking
19 judicial review of the Commissioner’s final decision.
Plaintiff argues the denial of benefits should be reversed and remanded for further
21 proceedings, because: 1) the ALJ erred in evaluating the opinion of Plaintiff’s treating
22 psychologist, one examining psychologist, and two non-examining psychological consultants;
23 and 2) the ALJ improperly discounted the lay witness testimony. Dkt. 12, pp. 1-2.
ORDER ON PLAINTIFF’S COMPLAINT - 2
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social
3 security benefits only if the ALJ's findings are based on legal error or not supported by
4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). “Substantial evidence” is
6 more than a scintilla, less than a preponderance, and is such “‘relevant evidence as a reasonable
7 mind might accept as adequate to support a conclusion.’” Magallanes v. Bowen, 881 F.2d 747,
8 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).
Whether the ALJ Properly Evaluated the Medical Opinion Evidence.
The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted
13 opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d
14 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v.
15 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). However, “[i]n order to discount the opinion of an
16 examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must
17 set forth specific, legitimate reasons that are supported by substantial evidence in the record.”
18 Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81 F.3d at 831). The ALJ
19 can accomplish this by “setting out a detailed and thorough summary of the facts and conflicting
20 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157
21 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751). In addition, the ALJ must
22 explain why the ALJ’s own interpretations, rather than those of the doctors, are correct. Reddick,
23 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). The ALJ “may not reject ‘significant
ORDER ON PLAINTIFF’S COMPLAINT - 3
1 probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)
2 (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642
3 F.2d 700, 706-07 (3d Cir. 1981))). The “ALJ’s written decision must state reasons for
4 disregarding [such] evidence.” Flores, 49 F.3d at 571.
B. Application of Standard
1. Katerina Riabova, M.D.
Dr. Riabova was Plaintiff’s treating psychiatrist from 2007 through the date of the ALJ’s
8 decision. See AR 372, 401. Dr. Riabova diagnosed Plaintiff with bipolar disorder, Asperger’s
9 syndrome, general anxiety disorder, ADHD, OCD, and borderline personality disorder. AR 372.
10 In March of 2013, Dr. Riabova opined Plaintiff’s impairments would cause limitations in her
11 ability to: interact socially; understand communications from others; concentrate; learn, follow,
12 and retain instructions; and maintain relationships. AR 372-73. Dr. Riabova opined Plaintiff was
13 incapable of employment. AR 372. Dr. Riabova rendered a supplemental opinion on September
14 26, 2014, where she indicated Plaintiff’s limitations are the product of her mental illnesses. AR
15 401. Dr. Riabova further indicated Plaintiff’s conditions were nonresponsive to a range of
16 psychotropic medications. AR 401. As a result of Plaintiff’s impairments, Dr. Riabova opined
17 Plaintiff would be unable to engage in even unskilled employment, as Plaintiff had marked to
18 severe limitations in her ability to: accept instruction from a supervisor; interact appropriately
19 with coworkers; maintain concentration and work at a productive pace; and maintain a regular
20 schedule without frequent tardiness or absenteeism. AR 401. Though Dr. Riabova opined
21 Plaintiff’s prognosis was quite poor, she could not rule out the possibility that at some point in
22 the future she might experience a reduction in her symptoms. AR 401.
The ALJ gave little weight to Dr. Riabova’s opinions for the following three reasons:
ORDER ON PLAINTIFF’S COMPLAINT - 4
 Even though Dr. Riabova has a treating relationship with the claimant, I give
only little weight to her opinions because they are inconsistent with other
substantial evidence of record, including Dr. Riabova’s own treating notes, which
documented that the claimant made good eye contact and showed preserved
concentration, and that the claimant frequently reported feeling “good” or “fine”
[AR 329-33, 359-68]. There is no indication in Dr. Riabova’s treatment notes of
any social problems.  As discussed in detail above, while the claimant has
impairments, she managed to live alone, do housework, finish high school, go to
the library, use public transportation, hang out with friends, use the internet and
watch lots of television shows and movies [AR 258-59, 280-83, 330, 332, 354,
359, 362-63, 365-68].[ 2]  Moreover, Dr. Riabova’s opinions are not supported
by the claimant’s relatively normal performance during the July 2013 mental
status examination [AR 355], as discussed in detail above. The treatment notes
and independent testing results show that the claimant is less limited than opined
by Dr. Riabova in her 2013 and 2014 statements.
9 AR 21-22. Plaintiff argues these were not specific and legitimate reasons for discounting Dr.
10 Riabova’s opinions.
First, to the extent the ALJ found Dr. Riabova’s opinions to be inconsistent with her
12 treatment notes, this finding was unsupported by substantial evidence. While Plaintiff
13 demonstrated good eye contact during Dr. Riabova’s examinations, Dr. Riabova also consistently
14 documented constricted affect, immature thought process, poor judgment and insight, and poor
15 memory. AR 330-34, 359-68. While the ALJ found Dr. Riabova’s treatment notes did not reflect
16 Plaintiff had any social problems, Dr. Riabova’s notes actually document significant social
17 difficulties, including diminished insight and a history of physical assault. AR 334-36. These
18 were significant aspects of Dr. Riabova’s treatment notes which lend support to her opinions as
19 to Plaintiff’s work-related limitations. The ALJ could not silently disregard them in concluding
20 Dr. Riabova’s treatment notes were inconsistent with her opinions. See Reddick v. Chater, 157
The ALJ also cites to pages four and five of a January, 2009 letter by Dr. Riabova. AR
23 21 (referencing Exhibit 8F4-5). However, Exhibit 8F in the record is only one page long. See AR
370. It appears the ALJ meant to refer to Exhibit 8E, which contains Plaintiff’s Adult Function
24 Report. AR 256-263.
ORDER ON PLAINTIFF’S COMPLAINT - 5
1 F.3d 715, 720 (9th Cir. 1998) (noting the ALJ erred in developing “his evidentiary basis by not
2 fully accounting for the context of materials or all parts of the testimony and reports. His
3 paraphrasing of record material is not entirely accurate regarding the content or tone of the
Second, as to Plaintiff’s activities of daily living, the ALJ failed to explain how these
6 activities actually contradicted Dr. Riabova’s opinions. See Esparza v. Colvin, 631 Fed.Appx.
7 460, 462-63 (9th Cir. 2015). An ALJ must do more than state his or her conclusions; he or she
8 must explain why his or her interpretations, rather than those of the doctors, are correct. Reddick,
9 157 F.3d at 725. Further, the Ninth Circuit has stated ALJ’s should be especially cautious in
10 finding a claimant’s activities of daily living contradict claims of disabling limitations, “because
11 impairments that would unquestionably preclude work and all the pressures of a workplace
12 environment will often be consistent with doing more than merely resting in bed all day.”
13 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014).
Notably, none of the activities identified by the ALJ are actually inconsistent with Dr.
15 Riabova’s opinions. For example, Defendant argues Dr. Riabova’s opinions Plaintiff would have
16 difficulty accepting instructions from a supervisor or interacting appropriately with coworkers
17 was inconsistent with the fact Plaintiff “hung out” with her friends. Dkt. 12, p. 3. However, it
18 does not follow from the fact Plaintiff had unspecified interactions with friends, that she would
19 be able to appropriately interact with coworkers, or respond appropriately to supervisor
20 instruction, in a work setting. See, e.g., Lester v. Colvin, 2014 WL 2009092, at *2-3 (W.D.
21 Wash. May 16, 2014) (noting a claimant’s interaction with his girlfriend and parents were not
22 inconsistent with limitations in interacting with coworkers, supervisors, or authority figures).
23 Also, the ALJ relies on Plaintiff’s completion of a high school education, but fails to account for
ORDER ON PLAINTIFF’S COMPLAINT - 6
1 the fact Plaintiff was only able to do so under certain conditions. Plaintiff was unable to
2 complete the standard high school curriculum, and was referred to special education services due
3 to deficits in a wide range of areas. AR 308, 311-13. Plaintiff was highly distracted and had
4 inconsistent attendance, even within the context of a special education setting. AR 307. Finally,
5 the ALJ failed to explain how the balance of activities she identified—living alone, doing
6 housework, using public transportation, and watching TV—are actually inconsistent with Dr.
7 Riabova’s opined limitations in Plaintiff’s ability to interact with coworkers and supervisors,
8 concentrate and work at a production pace, or maintain a regular schedule without absenteeism.
9 In short, Plaintiff’s activities of daily living are not inconsistent with Dr. Riabova’s assessed
Finally, the ALJ notes Dr. Riabova’s opinions are apparently inconsistent with Plaintiff’s
12 “relatively normal” performance on a July, 2013 mental status examination conducted by
13 Brendon Scholtz, Ph.D. AR 20, 355. However, the ALJ again fails to explain how Dr. Riabova’s
14 opinion is inconsistent with this mental status examination. See Reddick, 157 F.3d at 725 (citing
15 Embrey, 849 F.2d at 421-22). Notably, Dr. Scholtz’s mental status examination contained many
16 of the same findings Dr. Riabova made in her mental status examinations, including memory
17 impairments and poor insight into Plaintiff’s condition. Compare AR 333 with AR 355. Thus,
18 the ALJ failed to provide a specific and legitimate reason, supported by substantial evidence, for
19 discounting Dr. Riabova’s opinions. 3
Defendant also cites to several purported inconsistencies with the medical evidence
22 which she contends supports the ALJ’s decision. Dkt. 12, pp. 2-3 (noting the records reflect
Plaintiff improved on medication and had obtained jobs). However, the ALJ failed to offer these
23 reasons as a basis for discounting Dr. Riabova’s opinions, and this Court is constrained to review
the actual reasoning and findings of the ALJ. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
24 1219, 1222 (9th Cir. 2009). In any event, Defendant’s proposed inconsistencies are unsupported
ORDER ON PLAINTIFF’S COMPLAINT - 7
Further, this error is not harmless. The ALJ’s RFC finding fails to account for all of Dr.
2 Riabova’s opined limitations, such as Plaintiff’s limitations in working with supervisors and
3 Plaintiff’s limitations in maintaining a schedule. Because the RFC finding fails to account for
4 these limitations, the ALJ’s error is not “inconsequential to the ultimate nondisability
5 determination,” and is harmful error requiring remand. See Molina v. Astrue, 674 F.3d 1104,
6 1117 (9th Cir. 2012).
2. Other Medical Opinion Evidence.
Plaintiff argues the ALJ erred by discounting one aspect of Dr. Scholtz’s opinion.
9 Specifically, Plaintiff argues the ALJ failed to offer a specific and legitimate reason to discount
10 Dr. Scholtz’s opinion Plaintiff would require job coaching and sheltering. AR 20, 356. However,
11 the ALJ correctly noted Dr. Scholtz failed to support this aspect of his opinion with any
12 explanation or reference to his examination findings. AR 356. An ALJ may properly discount an
13 opinion which is brief, conclusory, and unsupported by evidence in the record. See Batson v.
14 Commr’, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Further, the ALJ correctly notes
15 Dr. Scholtz opined Plaintiff’s impairments would likely improve significantly or remit within 90
16 days. AR 356. As disability is defined as the inability to work due to limitations “which can be
17 expected to result in death or which has lasted or can be expected to last for a continuous period
18 of not less than twelve months,” the ALJ could properly discount Dr. Scholtz’ opinion for this
19 reason. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
22 by substantial evidence. For example, Defendant argues Dr. Riabova’s opinion Plaintiff was not
capable of employment were contradicted by two treatment notes reflecting she was working at
23 the time of two treatment sessions. AR 330, 332. However, the record as a whole—including the
Social Security Administration’s own wage history reports—reflect this period of time
24 constituted no more than de minimis work, which lasted, at most, two weeks. See AR 170-73.
ORDER ON PLAINTIFF’S COMPLAINT - 8
Plaintiff also argues the ALJ erred by giving too much weight to the opinions of State
2 Agency Medical Consultants Richard Borton, Ph.D., and Carla van Dam, Ph.D., as well as
3 giving too much weight to the balance of Dr. Scholtz’s opinion. However, an ALJ is only
4 required to offer specific and legitimate reasons for discounting a medical opinion. See Lester, 81
5 F.3d at 831. Moreover, the ALJ has sole responsibility to resolve ambiguities and determine the
6 credibility of medical evidence. See Reddick, 157 F.3d at 722. See also Orteza v. Shalala, 50
7 F.3d 748, 750 (9th Cir. 1995) (drawing a distinction between an ALJ discounting a medical
8 opinion, and an ALJ interpreting a medical opinion). Provided an ALJ’s reasoning is supported
9 by substantial evidence, the Court is not permitted to reweigh the evidence.
An examining physician’s opinion constitutes substantial evidence “because it rests on
11 his [or her] own independent examination . . . .” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th
12 Cir. 2001). Further, a non-examining medical consultant’s opinion constitutes substantial
13 evidence where it is consistent with other evidence in the record. Id. at 1149. Here, the ALJ
14 noted the balance of Dr. Scholtz’s opinions were supported by his examination findings, and the
15 ALJ concluded Dr. van Dam and Dr. Borton’s opinions were consistent with Plaintiff’s
16 presentation on multiple treatment visits and examinations. AR 20. This was sufficient to support
17 the ALJ’s interpretation of Dr. Borton, Dr. van Dam, and Dr. Scholtz’s opinions, and, assuming
18 the ALJ properly discounted the opinions of Plaintiff’s treating psychiatrist, would be proper
19 reasons for the ALJ to give these opinions significant weight.
However, as discussed above, the ALJ did not properly discount Dr. Riabova’s opinion.
21 Thus, on remand, the ALJ should reevaluate the medical opinion testimony.
ORDER ON PLAINTIFF’S COMPLAINT - 9
Whether the ALJ Provided Germane Reasons for Rejecting the Lay Witness Evidence
in the Record.
In the Ninth Circuit, lay witness testimony is competent evidence and “cannot be
disregarded without comment.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). See also 20 C.F.R. § 404.1413(d), SSR
06-03p, 2006 WL 2329939 at *2. However, an ALJ may discredit a lay witness’ testimony with
specific reasons “germane to each witness.” Bruce, 557 F.3d at 1115; Turner v. Comm’r of Soc.
Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). The ALJ need not cite the specific record, nor “clearly
link his determination to those reasons,” as long as “arguably germane reasons” for dismissing
the testimony are noted and substantial evidence supports the ALJ's decision. Lewis v. Apfel, 236
F.3d 503, 512 (9th Cir. 2001).
Here, the ALJ offered arguably germane reasons for discounting the lay witness
testimony of Plaintiff’s two former teachers, Marcy Stading and Shawn Kepp, and Plaintiff’s
mother, Michelle Chase. For example, the ALJ properly noted that, while Ms. Stading and Mr.
Kepp testified Plaintiff had very serious problems interacting and relating with others (AR 226,
234, 250), Plaintiff’s activities of daily living included hanging out with friends. See AR 259-60.
Further, the ALJ could properly rely on inconsistencies between Plaintiff’s treating notes and
Ms. Chase’s statements. See Lewis, 236 F.3d at 511 (“One reason for which an ALJ may
discount lay testimony is that it conflicts with medical evidence.”) (citing Vincent v. Heckler,
739 F.2d 1393, 1395 (9th Cir. 1984)). However, as the ALJ’s error in evaluating Dr. Riabova’s
testimony requires remand for further proceedings, the ALJ should reevalute the lay witness
testimony on remand.
ORDER ON PLAINTIFF’S COMPLAINT - 10
Based on the above stated reasons and the relevant record, the Court finds the ALJ
3 committed harmful error by failing to properly evaluate the medical opinion evidence. Therefore,
4 the Court orders this matter be reversed and remanded, pursuant to sentence four of 42 U.S.C. §
5 405(g), for a de novo hearing. On remand, the ALJ should re-evaluate medical opinion evidence,
6 re-evaluate the lay witness testimony, reassess Plaintiff’s residual functional capacity, and
7 proceed on to Step Four and/or Step Five of the sequential evaluation, as appropriate. The ALJ
8 should also develop the record as needed. Judgment should be for Plaintiff and the case should
9 be closed.
Dated this 7th day of March, 2017.
David W. Christel
United States Magistrate Judge
ORDER ON PLAINTIFF’S COMPLAINT - 11
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