Leskela Jr v. Berryhill

Filing 24

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL by Hon. Mary Alice Theiler. (KMP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICHAEL JOHN LESKELA, JR.,
Plaintiff,

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v.

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CASE NO. C17-0328-MAT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

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Defendant.
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Plaintiff Michael John Leskela, Jr., proceeds through counsel in his appeal of a final

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decision of the Commissioner of the Social Security Administration (Commissioner).

The

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Commissioner denied Plaintiff’s application for Supplemental Security Income (SSI) after a

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hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the

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administrative record (AR), and all memoranda of record, this matter is REVERSED and

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REMANDED for further administrative proceedings.
FACTS AND PROCEDURAL HISTORY

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Plaintiff was born on XXXX, 1972.1 He has a high school diploma, and has worked as a

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painter, Salvation Army bell ringer, temporary laborer, and retail and grocery stocker. (AR 41,

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Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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343.)

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Plaintiff applied for SSI in August 2013. (AR 297-305.) That application was denied

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initially and upon reconsideration, and Plaintiff timely requested a hearing. (AR 142, 155, 195-

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97.)

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On July 1, 2015, ALJ M.J. Adams held a hearing, taking testimony from Plaintiff and a

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vocational expert. (AR 37-65.) On July 30, 2015, the ALJ issued a decision finding Plaintiff not

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disabled. (AR 8-18.) Plaintiff timely appealed. The Appeals Council denied Plaintiff’s request

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for review on January 25, 2017 (AR 806-11), making the ALJ’s decision the final decision of the

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Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
JURISDICTION

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The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION

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The Commissioner follows a five-step sequential evaluation process for determining

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whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

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be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not

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engaged in substantial gainful activity since the application date. (AR 11.) At step two, it must

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be determined whether a claimant suffers from a severe impairment. The ALJ found severe

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Plaintiff’s depression, anxiety, and history of alcohol abuse. (Id.) Step three asks whether a

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claimant’s impairments meet or equal a listed impairment. The ALJ found that Plaintiff’s

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impairments did not meet or equal the criteria of a listed impairment. (AR 11-12.)

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If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

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residual functional capacity (RFC) and determine at step four whether the claimant has

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demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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performing a full range of work at all exertional levels, with the following limitations: he can

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perform simple, routine tasks and follow short, simple instructions. He can do work that requires

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little or no judgment and perform simple duties that can be learned on the job in less than 30 days.

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He can respond appropriately to supervision, but cannot work in close coordination with co-

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workers where teamwork is required. He can tolerate occasional changes in the work environment

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and work that requires no interaction with the public. (AR 12.) With that assessment, the ALJ

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found Plaintiff unable to perform past relevant work. (AR 16.)

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If a claimant demonstrates an inability to perform past relevant work, the burden shifts to

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the Commissioner to demonstrate at step five that the claimant retains the capacity to make an

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adjustment to work that exists in significant levels in the national economy. The ALJ found

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Plaintiff capable of transitioning to representative occupations, such as mail clerk, hand packager,

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and landscape laborer. (AR 16-17.)

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This Court’s review of the ALJ’s decision is limited to whether the decision is in

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accordance with the law and the findings supported by substantial evidence in the record as a

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whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more

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than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

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decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002).

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Plaintiff argues the ALJ erred in (1) discounting an opinion written by examining

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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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psychologist Melanie Mitchell, Psy.D; and (2) discounting his subjective testimony.2 The

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Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be

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affirmed, but that if it is remanded, it should be remanded for further proceedings rather than a

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finding of disability.
Dr. Mitchell’s opinion

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Dr. Mitchell examined Plaintiff in July 2013, and completed a form DSHS opinion. (AR

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529-42.) She indicated that Plaintiff had many marked limitations in a variety of functional areas.

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(AR 531.)

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The ALJ gave Dr. Mitchell’s opinion “some weight,” finding it “generally consistent with

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the objective medical record and the other opinion evidence.” (AR 15.) The ALJ discounted Dr.

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Mitchell’s opinion, however, because she only reviewed one evaluation and because Plaintiff was

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not attending counseling at the time of the examination, and this lack of treatment may have

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exacerbated his symptoms. (Id.)

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These reasons are not specific and legitimate, as required when an ALJ discounts a

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examining physician’s controverted opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.

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1996). The ALJ found Dr. Mitchell’s opinion to be generally consistent with the other opinion

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evidence, and therefore it is unclear why her failure to review multiple other opinions would

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undermine her opinion. Furthermore, the ALJ cited no evidence suggesting that Plaintiff’s

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symptoms worsened when he failed to attend counseling. The ALJ cited an incident when

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Plaintiff’s symptoms worsened when he failed to take his medication (AR 14), but it appears that

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Plaintiff also challenged the sufficiency of the ALJ’s step-five findings, but in doing so, only
reiterated arguments made in the first two assignments of error. Dkt. 18 at 14-15. Thus, this issue need not
be addressed separately.

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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he was taking medication even during his gap in therapy. (See AR 566.) Thus, the ALJ’s reasons

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to discount Dr. Mitchell’s opinion are not specific and legitimate reasons supported by substantial

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evidence, and the ALJ erred in discounting Dr. Mitchell’s opinion.
Subjective testimony

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The ALJ discounted Plaintiff’s subjective testimony because the medical record showed

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that he was not as impaired as alleged, and because his symptoms are exacerbated during periods

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of medication noncompliance. (AR 13-14.)

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Plaintiff argues that these reasons are not clear and convincing, as required in the Ninth

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Circuit. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). The Court agrees. Although

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the ALJ first found that Plaintiff’s testimony was contradicted by the medical record, the ALJ

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simply summarized the medical record and did not explain why it contradicted Plaintiff’s

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allegations. (AR 13-14.) This reasoning is insufficient. See Brown-Hunter v. Colvin, 806 F.3d

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487, 493-94 (9th Cir. 2015).

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Furthermore, although the ALJ stated that Plaintiff’s allegations of trouble socializing were

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not consistent with his complaints during therapy (AR 14), as noted in Plaintiff’s brief, Plaintiff

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consistently reported problems in social functioning during therapy. See Dkt. 18 at 14 (citing AR

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697, 707, 719, 727, 747, 752, 781, 790, 796).

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The ALJ also found that Plaintiff’s symptoms flared during periods of noncompliance with

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medication, but the ALJ only identified one incident of actual noncompliance: Plaintiff reported

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an increase in symptoms during a period that he was out of medication. (AR 682, 731.) Plaintiff

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had apparently attempted to contact his provider to request medication, but his call had gone to

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voicemail and he had not been able to get through.

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noncompliance is not a clear and convincing reason to discount his testimony, particularly because
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DISABILITY APPEAL
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(AR 731.)

This one incidence of

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even when Plaintiff complied, his symptoms persisted, as even the ALJ’s summary of the evidence

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mentions. (AR 13 (stating that Plaintiff reported no improvement with Wellbutrin and Zoloft), 14

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(Plaintiff continued to report paranoia symptoms even after his Wellbutrin and Mirtazapine were

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restarted).) Plaintiff’s one documented episode of noncompliance does not indicate that his

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symptoms are significantly alleviated with medication, and thus this evidence does not undermine

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Plaintiff’s allegation of disability.

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Although Plaintiff requests that the ALJ’s errors in assessing Dr. Mitchell’s opinion and

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his own subjective testimony be remedied by a remand for a finding of disability (Dkt. 18 at 15),

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the Court finds that this remedy would be inappropriate in light of the conflicts in the opinion

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evidence as to the extent of Plaintiff’s limitations. Further proceedings to resolve these conflicts

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would not be useless, and therefore the Court will not credit as true the improperly rejected

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evidence. See Leon v. Berryhill, __ F.3d __, 2017 WL 5150294, at *4 (9th Cir. Nov. 7, 2017).
CONCLUSION

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For the reasons set forth above, the ALJ’s decision is REVERSED and the matter is
REMANDED for further administrative proceedings.
DATED this 17th day of November, 2017.

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Mary Alice Theiler
United States Magistrate Judge

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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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