Thompson v. Berryhill

Filing 18

ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS by Hon. Brian A Tsuchida. (AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VINCENT THOMPSON,
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CASE NO. 17-305-BAT

Plaintiff,
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ORDER REVERSING AND
REMANDING FOR FURTHER
PROCEEDINGS

v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Vincent Thompson appeals the ALJ’s decision finding him not disabled. He contends the

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ALJ erred in (1) failing to find headaches are a severe impairment; (2) rejecting four doctors’

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opinions about his mental limitations, and two doctors’ opinions about his physical limitations;

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and (3) failing to develop the record. Dkt. 15. The Court agrees the ALJ harmfully erred and

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accordingly REVERSES the Commissioner’s final decision and REMANDS the case for

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further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

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DISCUSSION
A.

Head Aches and Step Two Findings
At step two the ALJ found Mr. Thompson has several physical and mental conditions but

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made no mention of headaches at the step or at any subsequent step. Mr. Thompson argues the

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ALJ erred in failing to find his severe and chronic headaches are a severe impairment and

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harmfully erred in failing to consider the impact of the headaches on his ability to perform

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gainful work. Dkt. 15 at 15-16. The Commissioner argues the ALJ did not err because there are

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“no anatomical or physiological abnormalities shown by medically acceptable clinical and

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laboratory techniques” that prove he has headaches. Dkt. 16 at 2. However, the ALJ did not find

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Mr. Thompson’s headaches are not medically determinable. In fact, the ALJ did not mention

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headaches at all. The Commissioner’s argument is consequently an improper post-hoc

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rationalization the Court cannot rely on to affirm the ALJ. See Pinto v. Massanari, 249 F.3d 840,

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847-48 (9th Cir. 2001). The Court reviews the ALJ’s decision “based on the reasoning and

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findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the

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adjudicator may have been thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 (9th Cir.

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1995).

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The Commissioner’s argument also assumes there are tests or procedures that could have

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been utilized to substantiate an abnormality causing Mr. Thompson’s headaches. But no such test

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exists. See e.g. Spiteri v. Colvin, No. 16-1937, 2016 WL 7425924 at *11 (N.D. Cal. Dec. 23,

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2016) (There is no test for migraine headaches.”); Hansen v. Colvin, 15-190, 2016 WL 4582041

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at * 4 (D. Idaho Sept. 1, 2016) (ALJ’s step two ruling required proof of “’objective’ evidence for

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her migraines when no such evidence would have been attainable.”); McPherson v. Colvin, No.

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15-5363, 2015 WL 6692243, at * 5 (W.D. Wash. Nov. 2, 2015) (“there is no objective clinical

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test which can corroborate” existence of migraine headaches.).

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The record shows the ALJ failed to discuss or address Mr. Thompson’s headaches. This

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failure is not harmless. This isn’t a case in which there is no evidence Mr. Thompson suffers

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from chronic headaches. On the contrary, as the parties’ note, Mr. Thompson’s medical

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providers repeatedly state one of his “chronic problems” is chronic post-trauma headache,” and

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repeatedly noted the problem in Mr. Thompson’s medical records. Dkt. 15 at 15; Dkt. 16 at 2.

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Furthermore the record shows the headaches have more than a minimal impact on Mr.

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Thompson. He testified his headaches affected his ability to work, Tr. 46, 155, and treating

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doctor Raji Venkateswaran, M.D. wrote Mr. Thompson “reports ha in forehead, worse with light,

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and reading. Has x 2 years + not eval well at HMC, diff to do tasks, Has occur 3-4 times.” Tr.

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490.

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In sum, the ALJ harmfully erred in failing to address the impact of headaches on Mr.

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Thompson’s ability to perform work. There is ample medical evidence that Mr. Thompson

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suffers from headaches and that it has some impact on his ability to perform to perform gainful

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work. In order to properly determine Mr. Thompson’s RFC, the ALJ was required to consider all

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of the relevant medical opinions as well as the combined effects of all of plaintiff's impairments,

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even those not found to be severe. See 20 C.F.R. §§ 404.1545(a), 416.945(a), see also Celaya v.

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Halter, 332 F.3d 1177, 1182 (9th Cir.2003) (the ALJ “must consider limitations and restrictions

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imposed by all of an individual's impairments, even those that are not severe” when assessing the

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RFC) (quoting SSR 96-8p) (internal quotations omitted). This did not occur because the ALJ

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completely disregarded headaches; the case accordingly must therefore be remanded for further

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proceedings.

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B.

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The ALJ’s Evaluation of Medical Evidence Regarding Mental Health
Mr. Thompson argues the ALJ misevaluated the opinions of Dr. Carmela Washington

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Harvey, Robert Parker, Ph.D., George Ankuta, Ph.D., David Widlan, Ph.D., Raji Venateswaran,

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M.D., Dkt. 15 at 3-10. Because the ALJ failed to address, in any fashion, the impact of Mr.

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Thompson’s chronic headaches on his ability to work, the ALJ’s assessment of the medical

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evidence regarding Mr. Thompson’s mental functioning can no longer be deemed supported by

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substantial evidence and must be revisited. What is obviously missing from the ALJ’s

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assessment of Mr. Thompson’s RFC, and which must be developed further, is the effect his

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chronic headaches have, singly or in combination, with his other mental impairments and

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limitations. Although the case must be remanded for reassessment of the medical opinions

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above, the ALJ’s treatment of the opinions of Drs. Harvey, Parker and Widlan merit additional

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discussion.

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The ALJ did not mention Drs. Harvey, Parker or Venkateswaran. The Commissioner

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Drs. Harvey, Parker, Venkateswaran

argues the ALJ did not have to consider these doctors’ opinions because they were given before

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December 2013 and are thus irrelevant. Dkt. 16 at 3-4. Of course this is but an impermissible

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post-hoc justification because the ALJ did not address Drs. Harvey or Parker at all.

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The Court also rejects the notion the opinions are irrelevant because they predate the

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“period under the ALJ’s consideration.” Id. Mr. Thompson applied for Supplemental Security

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Income (SSI) in December 2013, alleging disability beginning April 2003. Tr. 12. Under 20

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C.F.R. §§ 416.330(a); 416.355, the earliest month an SSI applicant is eligible to receive benefits

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is the month following the month the SSI application is filed. But while the regulations set the

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earliest date an applicant can receive benefits, they “say nothing about when a claimant’s

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disability actually begins.” Owen v. Colvin, No.15-5933-KLS, 2016 WL 6080910 at *3

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(W.Wash. Oct. 18, 2016). Here Mr. Thompson claimed he became disabled in 2003. Dr. Harvey

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rendered her opinion in April 2010, Tr. 292. Dr. Parker rendered his opinion in March 2011 and

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2012. Tr. 313-26. Dr. Venkateswaran rendered his opinion in March 2010. The opinions are

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relevant evidence about Mr. Thompson’s functional limitations because the ALJ made no

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findings that he improved between the time the opinions were given, and the time he became

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eligible to receive benefits. In other words, Mr. Thompson could have become disabled in 2010

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and because his condition did not improve, continued to be disabled at the time he applied for

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SSI benefits.

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The Court also rejects the Commissioner’s argument that Vasquez ex rel. S.R.A. v. Astrue,

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No EDCV0800449AJW, 2009 WL 1444728, at * 1. n. 1 (C.D. Cal. May 19, 2009), authorizes

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the ALJ to completely ignore without comment the opinions or to find them irrelevant. Dkt. 16 at

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3, n. 2. The case is not binding precedent and conflates “disability onset” with the earliest date an

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SSI claimant can be paid. Virtually all disability claims substantially rely on evidence predating

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the date the disability application is filed. This is because a claimant needs evidence of disability

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to apply for benefits, and that evidence necessarily involves records, statements, and opinions

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that predate the application. The ALJ must assess what weight evidence of record is given and

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may discount it in the appropriate case. For instance, the ALJ may reject medical opinions due to

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improvements to the claimant’s physical or mental condition between the time the opinion was

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rendered and the relevant time at issue. But the mere fact a claimant became disabled before he

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or she is eligible to begin receiving SSI benefits does not render evidence from the onset of

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disability irrelevant. For example, a claimant permanently loses all ability to see, and the only

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medical evidence of this loss are records from the claimant’s hospitalization in 2010. The

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claimant applies for SSI in 2013. The Commissioner would have the Court find no error where

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the ALJ ignores or omits the 2010 medical evidence, and instead concludes that based upon a

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lack of evidence from the “relevant” period in an SSI case, the claimant retains the RFC to

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perform a job in the national economy.

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This extreme example simply illustrates the difference between relevant evidence of
disability and the earliest date an SSI claimant is entitled to begin receiving payment. Here, two

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doctors opined Mr. Thompson has significant mental limitations that would affect his ability to

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work. Dr. Venkateswaran also indicated Mr. Thompson had difficulty doing tasks due to

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headaches. Without comment, the ALJ completely ignored these opinions rather than fulfilling

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the ALJ’s duty to weigh and assess all relevant evidence of record. The ALJ accordingly

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harmfully erred.

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2.

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The ALJ rejected Dr. Widlan’s opinions on the grounds they were rendered “in the

Dr. Widlan

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context of a Washington Department of Health Services assistance exam, which relies upon a

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different set of standards and circumstances than the analysis in Social Security Disability

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appeal.” Tr. 21. The ALJ committed legal error because “the purpose for which medical reports

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are obtained does not provide a legitimate basis for rejecting them.” Lester v. Chater, 81 F.3d

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821, 832 (9th Cir. 1996). Additionally the ALJ’s claim the doctor used different standards is

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unsupported. The ALJ did not explain how or why the doctor’s opinions rely on standards so

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different that they are useless or irrelevant for purposes of a disability determination. Moreover,

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most doctors, especially treating doctors, do not create medical records based specifically on the

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“standards and circumstances” used in “the analysis in Social Security Disability appeal.” The

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ALJ’s rationale would thus preclude reliance on virtually all treating source records and

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opinions.

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The ALJ also rejected Dr. Widlan’s opinions because it was a one-time evaluation. Tr.

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21. This is a legally erroneous reason. Examining doctors generally provide opinions based upon

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a single examination. The ALJ’s rationale would render all examining opinions superfluous, and

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is contrary to the requirement that the ALJ consider all relevant evidence, including medical

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opinions of examining doctors. See 20 C.F.R. § 416.945(a) (ALJ must assess medical reports in

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determining a claimant’s capacity to work). In short, the ALJ failed to provide valid reasons to

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reject Dr. Widlan’s opinions and must reassess his opinions on remand.

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C.

The ALJ’s Evaluation of Medical Evidence Regarding Fracture Finger
Mr. Thompson argues the ALJ failed to account for limitations found by Michael Blatner,

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M.D., regarding Mr. Thompson’s fractured left index finger. The ALJ recognized status post

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fracture as a severe impairment but found the fracture was “well-healed,” and that Mr.

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Thompson’s testimony about limitations caused by the fracture are not credible. Tr. 20. The

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Commissioner argues the ALJ committed no error because there is no “conflict between Dr.

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Blatner’s assessment and the ALJ’s decision.” Dkt. 16 at 6. The record shows otherwise. While

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the fracture healed well, Dr. Blatner found Mr. Thompson suffered “significant stiffness” and

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reduced range of motion, subsequent to the surgery. Tr. 500. These findings were not based upon

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Mr. Thompson’s self-reports. Rather Dr. Blatner described the “flexed position” of the fractured

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finger; calculated limitations to range of motion; and noted that x-ray examination reveals an

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“irregularity along the metacarpal surface.” Id. The doctor noted Mr. Thompson’s problems

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might be addressed if the “scar tissue in question” could be released through additional surgery,

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noting it would not be a simple procedure. In short, the ALJ misevaluated limitations found by

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Dr. Blatner. The doctor opined Mr. Thompson had stiffness and range of motion problems.

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These opinions were based upon objective medical evidence, not on Mr. Thompson’s self-reports

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as the ALJ found. The ALJ should have accounted for these limitations in determining whether

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Mr. Thompson could perform all levels of medium work and had “unlimited . . . fine and gross

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and fingering,” but did not. Tr. 17. The ALJ accordingly harmfully erred.

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//

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D.

Development of the Record
The ALJ rendered a disability determination based upon an incomplete record. The

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record contains only two of a three page 2011 psychiatric evaluation performed at neighborcare

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health. Tr. 307-08. The Commissioner argues the missing evidence is irrelevant because it does

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not relate to the relevant period. Dkt. 16 at 6. The ALJ did not mention the evaluation and the

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Court rejects the argument as an impermissible post hoc justification. Further, as discussed

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above, this evidence is relevant, and cannot be ignored without comment. This is especially so

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because the last line of page 2 of the evaluation states: “42-year-old man with significant

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depression and symptoms of posttaumatic stress disorder. Most worrisome is his . . .” (emphasis

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added). This language indicates Mr. Thompson could have a significant limitation which the ALJ

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did not account for in determining his RFC.

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The Commissioner also argues the incomplete record is Mr. Thompson’s fault. However,

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“The ALJ always has a ‘special duty to fully and fairly develop the record and to assure that the

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claimant’s interests are considered.’” Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir.

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2014) (citation omitted). This includes the duty to fully and fairly develop the record.

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Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir. 1982). This duty exists even when the

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claimant is represented by counsel. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Here

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the ALJ erred as a matter of law in rendering a decision based upon an incomplete record. The

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error was not harmless given the language in the last sentence of page two. On remand, the ALJ

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must complete the record and consider the full evaluation.

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CONCLUSION
For the reasons above, the Court REVERSES the Commissioner’s final decision and
REMANDS the case for further administrative proceedings under sentence four of 42 U.S.C. §

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405(g). On remand, the ALJ shall consider the impact of headaches on Mr. Thompson’s ability

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to perform work; assess the opinions of Drs. Harvey, Parker, Venkateswaran; reassess the

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opinions of Drs. Ankuta, Widlan; complete the record by obtaining and reviewing the complete

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2011 neighborcare health psychiatric evaluation; develop the record as needed; and as

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appropriate redetermine Mr. Thompson’s RFC ,and proceed to steps four and five.

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DATED this 28th day of September, 2017.

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A
BRIAN A. TSUCHIDA
United States Magistrate Judge

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