Holtz v. Berryhill

Filing 12

ORDER Reversing the Commissioner and Remanding for Further Proceedings by Judge Benjamin H. Settle. (TG)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

GREGORY MURRAY HOLTZ,
Plaintiff,

9

v.

10

11 NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

12

Case No. C17-788 BHS
ORDER REVERSING THE
COMMISSIONER AND
REMANDING FOR FUTHER
PROCEEDINGS

Defendant.

13

Gregory M. Holtz appeals the ALJ’s decision finding him not disabled. Dkt. 3. He
14

contends the ALJ erroneously rejected the opinions of Leslie Carter, Ph.D., and Sylvia
15
16
17

Thorpe, Ph.D., and that the Court should remand the case for an award of benefits, or
alternatively for further proceedings. Dkt. 9 at 2, 4, 11. For the reasons below, the Court

18 finds the ALJ harmfully erred and REVERSES the Commissioner’s final decision and
19 REMANDS the case for further administrative proceedings under sentence four of 42
20 U.S.C. § 405(g).
21

I. HISTORY AND ALJ’S DECISION

22

Mr. Holtz applied for benefits in 2013 alleging disability beginning August 2007.

23

Tr. 20. The ALJ found the relevant period in this case begins on December 28, 2012, id.,

ORDER - 1

1 a finding the parties do not contest. After conducting a hearing, the ALJ issued a decision
2 in which he made the following sequential disability determination findings:
3

Step one: Mr. Holtz has not engaged in substantial gainful activity since August
1, 2007.

4

Step two: Anxiety disorder, depressive disorder, history of attention
deficit/hyperactivity disorder (ADHD), and artistic spectrum disorder are severe
impairments.

5
6

Step three: These impairments do not meet or equal the requirements of a listed
impairment. 1

7
8

12

Residual Functional Capacity: Mr. Holtz can perform the full range of work at
all exertional levels with the following nonexertional limitations: he can attend to
and concentrate on simple routine tasks in two hour increments; he can have
incidental contact with the public, is capable of working in proximity to, but not in
coordination with, co-workers, and can have occasional contact with supervisor;
he will be off task at work 9% of the time but can still meet minimum production
requirements..

13

Step four: Mr. Holtz cannot perform past relevant work.

14

Step five: Mr. Holtz can perform other jobs in the national economy and is not
disabled.

9
10
11

15
16
17

AR 22-31. The Appeals Council denied review making the ALJ’s decision the final
decision of the Commissioner. AR 1.
II. DISCUSSION

18
19 A.

The ALJ’s Evaluation of the Opinions of Leslie Carter, Ph.D.

20

Mr. Young contends the ALJ erroneously rejected Dr. Carter’s opinions about the

21 severity of his limitations. Dkt. 9 at 4. Dr. Carter evaluated Mr. Holtz in July 2013. Tr.
22
23
1

ORDER - 2

20 C.F.R. Part 404, Subpart P. Appendix 1.

1 445-55. The doctor performed a clinical examination, reviewed medical documentation
2 that Mr. Holtz’s parents provided, interviewed Mr. Holtz’s parents, and administered the
3 following tests: the RAADS-R, the Millon Clinical Mutiaxial Inventory-III (MCMI-III),
4
5

and the Adaptive Behavior Assessment (ABAS-II). Id. Dr. Carter diagnosed Mr. Holtz
with Autistic Spectrum Disorder, Attention Deficit Disorder, Tourette’s Syndrome,

6

Anxiety Disorder, NOS, generalized and social components. Tr. 453.
7

Dr. Carter opined Mr. Holtz met the requirements of Listing 12.10 for autistic
8
9
10

disorder and other pervasive developmental disorders noting he has been symptomatic
since age 8; he has qualitative deficits in reciprocal social interactions and had difficulty

11 relating to people; he is confused by multiple social interactions and has difficulty
12 making the right choice; he has difficulty reading non-verbal communication in other
13 people; he has developed high levels of social anxiety resulting in repetitive behaviors
14 when anxious; he has marked restriction in his activities due to focused interests and
15 difficulty tearing himself away from those interests when it is time to do other things; he
16 is disorganized and has difficulty planning and concentrating; and he is markedly
17
18

restricted in activities of daily living compared to others his age. Tr. 453.
The ALJ gave “little weight” to Dr. Carter’s opinions. Tr. 28. The ALJ found the

19

doctor’s “suggestion the claimant meets the listing requirements . . . are inconsistent with
20

the claimant’s work history, his activities, the normal psychiatric observations, and his
21
22
23

performance on mental status examinations.” Tr. 28-29. The ALJ found the opinions do
“not address the claimant’s abilities to hold jobs for years at a time,” and rely too heavily

ORDER - 3

1 upon the “claimant’s subjective statements.” Tr. 29. The ALJ discounted the tests Dr.
2 Carter administered as “based upon Mr. Holtz’s statements.” Id. And finally, the ALJ
3 found Dr. Carter lacked a complete understanding of “the claimant’s improvement with
4
5

medications,” and therefore lacked a complete understanding of Mr. Holtz’s mental
health situation. Id.

6

The Commissioner defends the ALJ’s determination, first arguing Dr. Carter’s
7

opinions were contradicted by the opinions of non-examining doctors Bill Hennings,
8
9
10

Ph.D., and James Buskirk, Ph.D. Dkt. 10 at 4-5. However, the opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the

11 rejection of the opinion of an examining physician such as Dr. Carter. Pitzer v. Sullivan,
12 908 F.2d 502, 506, n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.
13 1984). Moreover, the ALJ did not state he was rejecting Dr. Carter’s opinions as
14 inconsistent with Drs. Hennings and Buskirk’s opinions. The Commissioner’s argument
15 is thus an improper post-hoc rationalization that this Court cannot rely on to affirm the
16 ALJ. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001). The Court reviews
17
18

the ALJ’s decision “based on the reasoning and findings offered by the ALJ—not post
hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”

19

Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 (9th Cir. 1995).
20

The Commissioner suggests other source opinions support the ALJ’s decision to
21
22
23

discount Dr. Carter’s opinions. But the ALJ did not identify a medical source opinion that
he found contradicted Dr. Carter’s opinion, and hence the Court rejects the

ORDER - 4

1 Commissioner’s suggestion. The Court notes the ALJ indicated Mr. Carter’s performance
2 on other mental status examinations contradict Dr. Carter’s opinions. But this fails to
3 address most of the limitations assessed by Dr. Carter involving social functioning rather
4
5

than cognitive functioning. The mini mental status exam tests mental control, a fund of
other information, and the ability to think abstractly, but does not address social

6

functioning. Bonanno v. Astrue, No. 11-227, 2012 WL 5986557 at * 5 (E.D. Wash. Nov.
7

28, 2012).
8
9
10

Second, the Commissioner, citing to Gregory v. Bowen, 844 F.2d 664, 666-667
(9th Cir. 1998), argues the ALJ properly rejected Dr. Carter’s opinions on the grounds

11 that Mr. Hotlz has suffered from his mental disorders since childhood but held jobs for
12 years at a time. Dkt. 10 at 5. In Gregory, the claimant had a back problem that did not
13 prevent her from working and was stable. Id. In other words, the ALJ in that case
14 properly found since the back problem had not worsened, it was not a disabling
15 condition. In contrast, as Mr. Holtz points out, treatment notes from 2014-2015 indicate
16 Mr. Holtz has problems with time management, losing track of time, focusing on
17
18

accomplishing his tasks, and talking excessively about random subjects. Dkt. 9 at 10. The
ALJ did not discuss this evidence which indicates Mr. Holtz’s mental limitations have

19

worsened since the last time he was able to perform gainful work in 2007. Accordingly
20

the ALJ erred.
21
22
23

Third, the Commissioner argues the ALJ properly rejected Dr. Carter’s
“suggestion” (Tr. 29) that Mr. Holtz had significant difficulty in his past jobs due to

ORDER - 5

1 mental problems because the doctor did not know Mr. Holtz gave different accounts of
2 why he was discharged from the Navy. Dkt. 10 at 6. The crux of the Commissioner’s
3 argument is Mr. Holtz stated in his disability application he was discharged because he
4
5

could not meet “watch qualifications,” i.e. meet promotion requirements, Tr. 344, but told
Dr. Colby and Dr. Swanson he was discharged from the Navy because he was drinking,

6

pulled fire alarms and went AWOL, Tr. 438, 471.
7

The ALJ’s finding Mr. Holtz’s statements are contradictory is not supported by the
8
9
10

record. In each of the above statements Mr. Holtz reported he received a “general
discharge,” in contrast to an honorable discharge. In other words, Mr. Holtz consistently

11 stated he was discharged for some type of unacceptable or improper behavior. True, he
12 did not provide all the facts in his application statement, Tr. 344, but he clearly admitted
13 to a general discharge, and admitted the same to Drs. Colby and Swanson. The ALJ
14 accordingly erred in finding Mr. Holtz made non-credible statements about his military
15 discharge which Dr. Carter erroneously relied upon.
16
17
18

The Court notes the Commissioner suggests the ALJ rejected all of Dr. Carter’s
findings on the grounds the ALJ found Mr. Carter was not credible. Dkt. 10 at 6. The
suggestion overstates the ALJ’s findings. The ALJ specifically stated he rejected the

19

doctor’s opinion about how Mr. Holtz struggled at work on the grounds Mr. Holtz made
20

inconsistent statements about his Navy discharge. Tr. 29. The ALJ did not make the
21
22

sweeping finding the Commissioner suggests, and the Court thus rejects it.

23

ORDER - 6

1

Moreover, when an opinion is not more heavily based on a patient’s self-reports

2 than on clinical observations, there is no evidentiary basis for rejecting the opinion. See
3 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–1200 (9th Cir. 2008). An ALJ does
4
5

not provide clear and convincing reasons for rejecting an examining doctor’s opinion by
questioning the credibility of the patient’s complaints where the doctor does not discredit

6

those complaints and supports her ultimate opinion with her own observations. Edlund v.
7

Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). Here Dr. Carter did not question Mr.
8
9
10

Holtz’s credibility and administered a number of standardized tests in assessing him.
Accordingly, even if the ALJ had found all of Dr. Carter’s opinions on the grounds that

11 he relied upon Mr. Holtz’s statements, the finding would not be supported by substantial
12 evidence.
13

Fourth, the Commissioner argues the ALJ properly rejected Dr. Carter’s test

14 results as based on the subjective statements of Mr. Holtz and his family members. Dkt.
15 10 at 6. The ALJ erred. A psychologist’s clinical interview and tests that are performed
16 are “objective measures” which “cannot be discounted as a self-report.” See Buck v.
17
18

Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). In Buck, the Court of Appeals stated
“[p]sychiatric evaluations may appear subjective, especially compared to evaluation in

19

other medical fields.” Id. “Diagnoses will always depend in part on the patient’s self20

report, as well as on the clinician’s observations of the patient. But such is the nature of
21
22

psychiatry. Thus, the rule allowing an ALJ to reject opinions based on self-reports does

23

ORDER - 7

1 not apply in the same manner to opinions regarding mental illness.” Id. (internal citations
2 omitted).
3
4
5

Fifth, the Commissioner argues the ALJ properly rejected Dr. Carter’s opinions
because they do not account for Mr. Holtz’s “improvement on medications.” Dkt. 10 at
7. The ALJ found Dr. Carter lacked a complete understanding of “the claimant’s

6

improvement with medications,” and therefore “did not have a complete or accurate
7

understanding of the claimant’s mental health situation.” Tr. 29. The medical treatment
8
9
10

record indicates Mr. Holtz suffers from ADHD. The treatment record shows Adderall has
been prescribed for this condition and that the medication improves Mr. Holtz’s attention

11 and ability to focus. Tr. 458, 460, 486. But while there is improvement, the treatment
12 record does not indicate Mr. Holtz’s attention is so improved he faces no barriers to
13 gainful work activity. Hence, that Mr. Holtz’s attention improved on medications does
14 not, alone, undermine Dr. Carter’s opinions.
15

Even assuming that it did undermine the doctor’s opinion about improvement on

16 attention, Mr. Holtz’s use of Adderall addresses only some but not all limitations Dr.
17
18

Carter assessed. The record shows Adderall improves Mr. Holtz’s focus and attention.
But there is no indication it improves the other limitations Dr. Carter assessed such as

19

Mr. Holtz’s deficits in reciprocal social interactions, difficulty relating to people,
20

confusion in multiple social interactions, difficulty making the right choice and reading
21
22
23

non-verbal communication in other people, high levels of social anxiety, and marked
restriction in activities due to focused interests and difficulty tearing himself away from

ORDER - 8

1 those interests when it is time to do other things. Accordingly, the ALJ erred in rejecting
2 all of Dr. Carter’s opinions on the grounds the doctor was not aware of “improvements on
3 medications.”
4
5

And sixth, the Commissioner argues Dr. Carter’s opinions are contradicted by Dr.
Colby’s opinions. Dkt. 10 at 7. The ALJ did not reject Dr. Carter’s opinion on this basis

6

and the Court rejects it as an improper post hoc argument. Similarly the Court rejects the
7

Commissioner’s argument that the ALJ noted how Mr. Holtz’s treating providers did not
8
9
10

notice the same deficits Mr. Holtz testified about. Id. The ALJ noted this in rejecting Mr.
Holtz’s testimony, not in rejecting Dr. Carter’s opinions. Tr. 24, 27. The argument is an

11 impermissible post hoc argument.
12 B.

The ALJ’s Evaluations of the Opinions of Sylvia Thorpe, Ph.D.

13

The ALJ rejected Dr. Thorpe’s opinions as inconsistent with Mr. Holtz’s “work

14 history, his activities, the normal psychiatric observations, and his performances on
15 mental status examinations.” Tr. 29. The ALJ erred in rejecting Dr. Carter’s opinions on
16 these bases and thus similarly erred in rejecting Dr. Thorpe’s opinions. Moreover, “an
17
18

ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing
more than ignoring it, asserting without explanation that another medical opinion is more

19

persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis
20

for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (citing
21
22

Nguyen v. Chater, 100 F.3d 1462, 1464 (9th. Cir. 1996)). Here, the ALJ’s reference to

23

ORDER - 9

1 three categories (work, activities, and medical) are impermissibly conclusory and
2 therefore erroneous.
3
4
5

The ALJ also indicated Dr. Thorpe did not review Mr. Holtz’s records. There is no
rule that an examining doctor’s opinion should be automatically rejected where she has
not reviewed all of the medical record. Of course, an ALJ could give more weight to the

6

opinion of an examining doctor who reviewed the record than to a doctor who had not.
7

But the ALJ offered no explanation and instead impermissibly rejected Dr. Thorpes’s
8
9
10

opinions simply because she had not looked at other medical records.
And finally, the ALJ rejected Dr. Thorpe’s opinion on the grounds it was based

11 upon a “one time examination.” Id. This is a legally erroneous reason. Examining doctors
12 generally provide opinions based upon a single examination. The ALJ’s rationale would
13 render all examining opinions superfluous, and is also contrary to the requirement that the
14 ALJ consider all relevant evidence, including medical opinions of examining doctors. See
15 20 C.F.R. § 416.945(a) (ALJ must assess medical reports in determining a claimant’s
16 capacity to work).
17
18

III. CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is REVERSED and

19

the case is REMANDED for further administrative proceedings under sentence four of
20

42 U.S.C. § 405(g). As to the scope of remand, the Court may remand for an award of
21
22
23

benefits where “the record has been fully developed and further administrative
proceedings would serve no useful purpose.” McCartey v. Massanari, 298 F.3d 1072,

ORDER - 10

1 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). This
2 occurs when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting the
3 claimant’s evidence; (2) there are no outstanding issues that must be resolved before a
4
5

determination of disability can be made; and (3) it is clear from the record that the ALJ
would be required to find the claimant disabled if he considered the claimant’s evidence.

6

Id. at 1076-77.
7

Even when all three requirements are met, the Court retains flexibility in
8
9
10

determining the appropriate remedy. Here additional proceedings would be useful. The
ALJ must reassess the opinions of Drs. Carter and Thorpe and determine whether Mr.

11 Holtz indeed meets the requirements of a listed impairment and if not, exactly what his
12 RFC is. This is the ALJ’s prerogative to assess, not the Court’s, and further proceedings
13 are therefore appropriate. On remand the ALJ shall reassess the opinions of Drs. Carter
14 and Thorpe, develop the record and reassess Mr. Holtz’s RFC as needed, and proceed to
15 step five as appropriate.
16

DATED this 21st day of February, 2018.

A

17
18

BENJAMIN H. SETTLE
United States District Judge

19
20
21
22
23

ORDER - 11