Mucke v. Berryhill

Filing 14

ORDER re 3 Complaint - by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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AEVIN MUCKE,

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Plaintiff,

CASE NO. 2:17-cv-00256 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed. See Dkt. 11, 12, 13.
After considering and reviewing the record, the Court concludes that the ALJ
erred when she discounted the medical opinions of Dr. Anselm Parlatore. The ALJ failed

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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to provide specific and legitimate reasons supported by substantial evidence when she

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discounted Dr. Parlatore’s opinions as (1) unsupported by clinical findings; (2) based on

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plaintiff’s subjective complaints and incompatible with plaintiff’s activities of daily

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living; and (3) unsupported by the longitudinal record. Contrary to the ALJ’s
determination, the record demonstrates that Dr. Parlatore’s opinions were supported by

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clinical findings, interviews, testing, and mental status examinations. Moreover, the
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ALJ’s determination is unsupported by the record as a whole. Had the ALJ properly
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considered Dr. Parlatore’s opinions, the residual functional capacity may have included
additional limitations.
Because this error is not harmless, this matter is reversed pursuant to sentence four

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of 42 U.S.C. § 405(g) and remanded to the Acting Commissioner for further

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consideration consistent with this order.

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BACKGROUND

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Plaintiff, AEVIN MUCKE, was born in 1986 and was 16 years old on the alleged

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date of disability onset of August 1, 2002. See AR. 212-17. Plaintiff completed the 11th

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grade in high school and obtained his GED his senior year. AR. 50. Plaintiff has some
work history at a fast food restaurant and a relative’s pet shop. AR. 53. Plaintiff’s last

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employment was as a produce clerk, but he quit after a few weeks because of anxiety.
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AR. 52-53.
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According to the ALJ, plaintiff has at least the severe impairments of “learning
disorder, attention deficit disorder and/or other organic mental disorder, anxiety disorder,
affective disorder, and autism spectrum disorder (20 CFR 416.920(c)).” AR. 25.

ORDER ON PLAINTIFF’S COMPLAINT - 2

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At the time of the hearing, plaintiff was living with his parents on their farm. AR.
48.

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PROCEDURAL HISTORY
Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant
to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and

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following reconsideration. See AR. 95, 107. Plaintiff’s requested hearing was held
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before Administrative Law Judge Cheri L. Filion (“the ALJ”) on September 21, 2015.
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See AR. 43-94. On December 17, 2015, the ALJ issued a written decision in which the
ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See
AR. 20-42.
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether the

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ALJ provided legally sufficient reasons for rejecting the opinions of an examining

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psychiatrist; and (2) Whether the ALJ provided germane reasons for rejecting the lay

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testimony. See Dkt. 11, p. 1.

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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s
denial of social security benefits if the ALJ’s findings are based on legal error or not

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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
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1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
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1999)).

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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DISCUSSION
(1)

Whether or not the ALJ provided legally sufficient reasons for rejecting the
opinions of an examining psychiatrist.

Plaintiff argues that the ALJ erred in her treatment of the opinions of examining
psychiatrist Anselm A. Parlatore, M.D. See Dkt. 11, pp. 3-14. The ALJ must provide

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“clear and convincing” reasons for rejecting the uncontradicted opinion of either a

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treating or examining physician or psychologist. Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan,

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908 F.2d 502, 506 (9th Cir. 1990)). But when a treating or examining physician’s

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opinion is contradicted, that opinion can be rejected “for specific and legitimate reasons

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that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31

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(citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722
F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by “setting out a detailed

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and thorough summary of the facts and conflicting clinical evidence, stating his
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interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th
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Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
Dr. Parlatore performed two Psychological/Psychiatric Evaluations on plaintiff.

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AR. 435-39, 512-16. On October 26, 2012, as part of his evaluation, Dr. Parlatore

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examined “numerous records,” conducted a clinical interview, charted his findings, and

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conducted a Mental Status Examination (“MSE”). AR. 435-39. On mental status, Dr.

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Parlatore noted that plaintiff’s speech was awkward and vague and that plaintiff was

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timid, jittery, perplexed, forlorn, anxious, nervous, distant, flat, and preoccupied. AR.

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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438. On a Folstein mini mental evaluation, Dr. Parlatore observed that plaintiff’s remote

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memory was poor -- he only scored 3 out of 7 on Serial 7s -- and he could not spell

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“world” correctly backwards. AR. 439.

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Based upon his examination, Dr. Parlatore opined that plaintiff had marked to
severe limitations with respect to his ability to perform basic work activity. AR. 437.

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For example, Dr. Parlatore opined that plaintiff had marked limitations understanding,
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remembering, and persisting in tasks by following very short and simple instructions. Id.
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Dr. Parlatore also opined that plaintiff had severe limitations in completing a normal
work day or work week without interruptions from his psychologically based symptoms.
Id.
On August 26, 2014, Dr. Parlatore performed a second Psychological/Psychiatric

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Evaluation on plaintiff. AR. 512-16. Dr. Parlatore again charted plaintiff’s medical

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history and conducted a MSE. Id. On mental status, plaintiff’s speech was bland, his

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attitude was tense and serious, and he was sad, anxious, nervous, and flat. AR. 515. Dr.

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Parlatore observed that plaintiff had an abnormal Folstein and that his memory,

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concentration, and abstract thought were outside normal limits. AR. 515. Dr. Parlatore
again indicated that plaintiff had marked limitations in his ability to perform basic work

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activities in all categories except one. AR. 514.
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The ALJ gave Dr. Parlatore’s opinions little weight. With respect to both
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opinions, the ALJ determined that Dr. Parlatore “did not give any expressed basis for his
multifaceted assessment of psychological disability and appears to have heavily relied on
the claimant’s subjective reporting.” AR. 34; see also AR. 35. The ALJ noted that Dr.

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Parlatore’s evaluations were inconsistent with the longitudinal record and plaintiff’s

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presentation throughout the longitudinal record. Id. The ALJ also discounted Dr.

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Parlatore’s August 2014 opinion because the ALJ determined that the plaintiff “has

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limited credibility as to the debilitating severity of his psychological symptoms,
impairments, and limitations.” AR. 35. The Court finds that the ALJ’s rejection of Dr.

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Parlatore’s opinions is not supported by specific and legitimate reasons supported by
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substantial evidence.
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First, the ALJ rejected Dr. Parlatore’s opinions because the ALJ determined that
Dr. Parlatore did not provide a basis for his assessments. However, Dr. Parlatore’s

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opinions were supported by a clinical interview with testing and MSE, and the October

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2012 opinion was supported by and review of “numerous records” (see AR. 435-39;

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512-16), which undermines the ALJ’s determination that Dr. Parlatore did not support his

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opinion or provide a basis for his assessments. Thus, the ALJ erred in rejecting Dr.

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Parlatore’s opinions as failing to give any “expressed basis” for his opinions when Dr.

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Parlatore’s assessments, including the opinions contained on a check box form, were

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supported by examination notes and clinical findings. See, e.g., Garrison v. Colvin, 759
F.3d 995, 1014 n.17 (9th Cir. 2014).

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Second, the ALJ rejected Dr. Parlatore’s opinions because she determined that Dr.
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Parlatore “appears to have heavily relied on the claimant’s subjective reporting.” AR. 34;
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see also AR. 35. According to the Ninth Circuit, “[an] ALJ may reject a treating
physician’s opinion if it is based ‘to a large extent’ on a claimant self-reports that have
been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

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Cir. 2008) (quoting Morgan v. Comm’r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.

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1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989))). This situation is

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distinguishable from one in which the doctor provides his own observations in support of

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his assessments and opinions. See Ryan v.Comm’r of Soc. Sec. Admin., 528 F.3d 1194,
1199-1200 (9th Cir. 2008) (“an ALJ does not provide clear and convincing reasons for

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rejecting an examining physician’s opinion by questioning the credibility of the patient’s
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complaints where the doctor does not discredit those complaints and supports his ultimate
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opinion with his own observations”); see also Edlund v. Massanari, 253 F.3d 1152, 1159
(9th Cir. 2001). According to the Ninth Circuit, “when an opinion is not more heavily

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based on a patient’s self-reports than on clinical observations, there is no evidentiary

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basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)

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(citing Ryan, 528 F.3d at 1199-1200).

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As noted above, Dr. Parlatore’s opinions were based on clinical interviews and

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observations, testing, and a review of records for the October 2012 opinion. Indeed, Dr.

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Parlatore’s opinions were based, in part, on the MSE, which is not subjective. The Court

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notes that “experienced clinicians attend to detail and subtlety in behavior, such as the
affect accompanying thought or ideas, the significance of gesture or mannerism, and the

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unspoken message of conversation. The MSE allows the organization, completion and
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communication of these observations.” Paula T. Trzepacz and Robert W. Baker, The
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Psychiatric Mental Status Examination 3 (Oxford University Press 1993). “Like the
physical examination, the Mental Status Examination is termed the objective portion of
the patient evaluation.” Id. at 4 (emphasis in original).

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The MSE generally is conducted by medical professionals skilled and experienced

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in psychology and mental health. Although “anyone can have a conversation with a

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patient, [ ] appropriate knowledge, vocabulary and skills can elevate the clinician’s

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‘conversation’ to a ‘mental status examination.’” Trzepacz and Baker, The Psychiatric
Mental Status Examination 3. A mental health professional is trained to observe patients

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for signs of their mental health not rendered obvious by the patient’s subjective reports,
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in part because the patient’s self-reported history is “biased by their understanding,
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experiences, intellect and personality” (id. at 4), and, in part, because it is not uncommon
for a person suffering from a mental illness to be unaware that her “condition reflects a

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potentially serious mental illness.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.

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1996) (citation omitted).

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Here, Dr. Parlatore charted a number of results based on plaintiff’s MSE results.

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For example, in August 2014, Dr. Parlatore observed that plaintiff’s speech was bland;

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his attitude and behavior were tense and serious; his mood was sad; and his affect was

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anxious, nervous, bland, and flat. AR. 515. On testing, Dr. Parlatore charted that

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plaintiff’s concentration, pace, persistence, attention, and focus were poor. AR. 516. In
October 2012, Dr. Parlatore made similar findings based on plaintiff’s MSE, including

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that plaintiff’s memory was poor and that his concentration and fund of knowledge were
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outside normal limits. See AR. 438-39. The record demonstrates that Dr. Parlatore
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provided sufficient explanation of the evidence relied upon in forming his opinions and
that Dr. Parlatore did not base his opinions of plaintiff’s limitations largely on selfreported symptoms. Rather, Dr. Parlatore provided a medical source statement that was

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based on the doctor’s observations, the objective results of the MSE, and plaintiff’s self-

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reported symptoms. Thus, the ALJ’s finding that the doctor’s assessments relied heavily

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on the claimant’s subjective complaints is not supported by substantial evidence in the

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record.
Third, the ALJ determined that Dr. Parlatore’s opinion is incompatible with

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plaintiff’s work and activities during the relevant period of disability. AR. 34, 35. The
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ALJ did not give an example of what work or activities undermine Dr. Parlatore’s
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opinion and failed to provide specifics of how Dr. Parlatore’s extensive testing and
assessment of plaintiff’s performance was contradicted. The ALJ must “build an

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accurate and logical bridge from the evidence to her conclusions so that we may afford

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the claimant meaningful review of the SSA’s ultimate findings.” Blakes v. Barnhart, 331

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F.3d 565, 569 (7th Cir. 2003). Conclusory statements, without more, are insufficient to

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constitute specific and legitimate reasons, supported by substantial evidence in the record

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to reject Dr. Parlatore’s opinion. See Embry v. Bowen, 849 F.2d 418, 421–22 (9th Cir.

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1988) (conclusory reasons do “not achieve the level of specificity” required to justify an

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ALJ’s rejection of an opinion); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989)
(an ALJ’s rejection of a physician’s opinion on the ground that it was contrary to clinical

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findings in the record was “broad and vague, failing to specify why the ALJ felt the
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treating physician’s opinion was flawed”).
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Regardless of the lack of specificity by the ALJ, the record does not support the
ALJ’s finding. Though not explicitly stated when analyzing Dr. Parlatore’s opinions, the
ALJ elsewhere in her opinion found that plaintiff’s ability to play video games, be part of

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an online gaming community, do farm chores, and occasional work undermine the

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severity of plaintiff’s functional limitations. AR. 29-31. Substantial evidence does not

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support the ALJ’s determination that plaintiff’s work and activities are inconsistent with

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Dr. Parlatore’s opined limitations. As an initial matter, it is unclear to the Court how
playing video games and doing chores at plaintiff’s home undermine Dr. Parlatore’s

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opinion that plaintiff will have functional limitations related to his ability to follow
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detailed instructions, learn new tasks, perform activities within a schedule, communicate
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and perform work effectively in a work setting, maintain appropriate behavior at work,
make simple work-related decisions, or be aware of normal work hazards and take

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appropriate precautions. AR. 437, 514. Indeed, plaintiff’s work history of approximately

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one month at McDonald’s (AR. 52-53, 60-61), a few weeks as a produce clerk at Winco

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(AR. 53, 365), a few months at a pet shop (AR. 49-63), and as a job shadow at Napa Auto

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Parts (AR. 55, 341) support Dr. Parlatore’s opinion that plaintiff has functional

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limitations regarding his ability to perform basic work activities. Moreover, having based

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his opinion in part of a clinical interview—where plaintiff disclosed his daily activities—

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and on “numerous prior medical records”—the evidence in the record demonstrates that
Dr. Parlatore was fully aware of plaintiff’s activities when assessing plaintiff’s functional

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limitations. Accordingly, the ALJ erred in dismissing Dr. Parlatore’s opinion for this
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additional reason.
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Fourth, the ALJ discounted Dr. Parlatore’s opinion because she determined that
plaintiff’s presentation during the examinations was inconsistent with his presentation
during other examinations throughout the relevant period and that plaintiff lacks

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credibility as to the severity of his limitations. AR. 34, 35. However, as noted above,

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“[i]f a treating provider’s opinions are based ‘to a large extent’ on an applicant’s self-

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reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ

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may discount the treating provider’s opinion.” Ghanim, 763 F.3d at 1162 (citations
omitted). But when an opinion is not more heavily based on a plaintiff’s self-reports,

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then there is no evidentiary basis for rejecting the doctor’s opinion. Id. The Court has
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already determined that Dr. Parlatore did not base his opinion more heavily on plaintiff’s
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self-reports than on his own clinical assessment. Accordingly, rejecting Dr. Parlatore’s
opinion on this basis is legal error and not supported by substantial evidence.
Finally, and relatedly, the ALJ gave no weight to Dr. Parlatore’s August 2014

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opinion after determining that the opinion was not consistent with the longitudinal

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treatment record. AR. 34, 35. Again, the record does not support the ALJ’s findings.

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According to the Ninth Circuit, “where the purported existence of an inconsistency is

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squarely contradicted by the record, it may not serve as the basis for the rejection of an

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examining physician’s conclusion.” Nguyen, 100 F.3d at 1465. The ALJ cited to a

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number of a treatment records—without analysis—as evidence that “the claimant has
routinely exhibited a lack of abnormalities in his affect, mood, speech, thought process,

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memory, concentration, or cognition.” AR. 34. However, these citations undermine the
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ALJ’s determination rather than support it. The record demonstrates that plaintiff
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presented with varying symptoms throughout his treatment, ranging from normal or
improved (see, e.g., AR. 454, 458, 471-72, 481, 592) to symptoms that mimic exactly
how he appeared before Dr. Parlatore, including a fair to poor mood and affect (AR. 425,

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457, 472, 482, 548, 552, 598, 604), anxiety or anxious behavior (AR. 543, 550, 592),

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poor memory (AR. 449), poor concentration (AR. 449), average to low average cognition

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(AR. 452), limited or blocked speech (AR. 472, 552, 604), fair judgment and insight (AR.

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548, 608), and fair to poor thought process (AR. 481, 548, 598).
The ALJ also cited to several records that purportedly undermine Dr. Parlatore’s

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opinions and noted that the records demonstrate a lack of abnormalities with respect to
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plaintiff’s motor activity. AR. 35. However, the ALJ offered no analysis or specificity
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regarding how motor activity undermines Dr. Parlatore’s psychological evaluation.
Indeed, it is unclear to the Court how records regarding plaintiff’s motor activity relate to
Dr. Parlatore’s opined limitations.
The ALJ also takes issue with plaintiff’s history with tics related to his Tourette’s

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syndrome. AR. 35. The ALJ asserts that plaintiff is not credible, and therefore Dr.

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Parlatore’s opinions should be discounted, because plaintiff told Dr. Parlatore that facial

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tics prevented his ability to work and that in a prior assessment the claimant declared that

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the tics had ceased. AR. 35. The record cited by the ALJ does not demonstrate that

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plaintiff stated his tics were a reason for his inability to work. See AR. 513. Rather, the
August 2014 assessment reflects that plaintiff cited his depression as a reason for his

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impairments and that plaintiff reported his Tourette’s Syndrome and associated tics
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during the clinical interview as part of his psychosocial history. AR. 512-13. Dr.
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Parlatore included in his own clinical findings that plaintiff’s tics affect his ability to
work. AR. 513. Moreover, although plaintiff has reported that the tics have subsided or
ceased at times, providers have observed tics during treatment and assessments. See, e.g.,

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AR. 552, 598. Thus, it is unclear how the absence of tics undermines Dr. Parlatore’s

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opinions. Accordingly, the ALJ’s finding of inconsistency with the medical record is not

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a specific and legitimate reason supported by substantial evidence for rejecting Dr.

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Parlatore’s assessments. Based on the forgoing and on the record as a whole, the ALJ
erred in her assessment of Dr. Parlatore’s opinions.

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The Court also concludes that the error in the evaluation of Dr. Parlatore’s
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opinion is not harmless. The Ninth Circuit has “recognized that harmless error principles
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apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012) (citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050,

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1054 (9th Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the

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explanation in Stout that “ALJ errors in social security are harmless if they are

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‘inconsequential to the ultimate nondisability determination’ and that ‘a reviewing court

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cannot consider [an] error harmless unless it can confidently conclude that no reasonable

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ALJ, when fully crediting the testimony, could have reached a different disability

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determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout, 454

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F.3d at 1055-56). In Marsh, even though “the district court gave persuasive reasons to
determine harmlessness,” the Ninth Circuit reversed and remanded for further

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administrative proceedings, noting that “the decision on disability rests with the ALJ and
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the Commissioner of the Social Security Administration in the first instance, not with a
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district court.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-(3)). Here, because the ALJ
improperly disregarded the opinions of Dr. Parlatore in forming the RFC and plaintiff

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was found to be capable of performing work existing in the national economy, the error

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affected the ultimate disability determination and is not harmless.

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(2)

Whether or not the ALJ provided germane reasons for rejecting the lay
testimony.

Plaintiff also avers that the ALJ erred in rejecting the lay opinion testimony of

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plaintiff’s mother, Michele Mucke. Dkt. 11, pp. 14-15. The ALJ rejected Ms. Mucke’s

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lay opinion, in part, because she determined that Ms. Mucke’s statement was inconsistent

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with examination findings. AR. 32. Because the Court already has concluded that the

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ALJ erred in reviewing the medical evidence and that this matter should be reversed and

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remanded for further consideration, Ms. Mucke’s lay opinion should be assessed anew
following remand of this matter.

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CONCLUSION

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Based on these reasons and the relevant record, the Court ORDERS that this
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matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
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405(g) to the Acting Commissioner for further consideration consistent with this order.
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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 18th day of October, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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