Wilson v. Commissioner of Social Security

Filing 17

ORDER REVERSING THE COMMISSIONER'S DECISION AND REMANDING FOR FURTHER PROCEEDINGS by Hon. Brian A Tsuchida. (AQ)

Case 2:21-cv-00085-BAT Document 17 Filed 10/06/21 Page 1 of 7

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT W.,
CASE NO. C21-85 BAT

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER REVERSING THE
COMMISSIONER’S DECISION AND
REMANDING FOR FURTHER
PROCEEDINGS

Plaintiff appeals the partial denial of his application for Supplemental Security Income.

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He contends the ALJ erroneously rejected three examining medical opinions and the case should

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be remanded. Dkt. 10 at 1-2. For the reasons below, the Court REVERSES the

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Commissioner’s final decision and REMANDS the case with for further administrative

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

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BACKGROUND
Plaintiff is currently 58 years old, has a 10th-grade education, and has worked as a bell

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ringer, restaurant dishwasher, temporary laborer, and baggage handler. Tr. 80, 238, 251-52.

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This case involves Plaintiff's February 2016 benefits applications and an amended alleged onset

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date of February 17, 2016. Tr. 66, 215-23. The application was denied initially and on

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reconsideration. Tr. 154-57, 162-64. The ALJ conducted a hearing in May 2018 (Tr. 59-93),

ORDER REVERSING THE COMMISSIONER’S DECISION AND
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and subsequently found Plaintiff not disabled before August 31, 2018, but disabled thereafter.

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Tr. 19-36. The Appeals Council denied review making the ALJ’s decision the Commissioner’s

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final decision. Tr. 4-9.
THE ALJ’S DECISION

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Utilizing the five-step disability evaluation process, 1 the ALJ found:

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Step one: Plaintiff has not engaged in substantial gainful activity since the application
date.

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Step two: Plaintiff has the following severe impairments: left ankle impairment
(osteoarthritis, history of fracture); left shoulder impairment (osteoarthritis); obesity; and
depressive disorder.

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Step three: These impairments did not meet or equal the requirements of a listed
impairment. 2

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Residual Functional Capacity: Plaintiff can perform light work with additional
limitations: he is limited to occasional overhead reaching (above shoulder level) with the
left upper non-dominant extremity; can frequently balance, stoop, and kneel; can
occasionally climb ramps and stairs; can occasionally crouch; can never climb ladders,
ropes, or scaffolds; can never crawl; and should avoid concentrated exposure to
vibrations, hazards, and heights. From a mental standpoint, the claimant can perform
simple, routine tasks and follow short, simple instructions. He can do work that needs
little or no judgment and can perform simple duties that could be learned on the job in a
short period. He can work in proximity to co-workers, but not in a cooperative or team
effort. He requires a work environment that has no more than superficial interactions
with co-workers. He requires a work environment that is predictable and with few work
setting changes. He would not deal with the general public as in a sales position or where
the general public is frequently encountered an essential element of the work process.
Incidental contact of a superficial nature with the general public is not precluded.

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Step four: Plaintiff cannot perform his past relevant work.

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Step five: As there are jobs that exist in significant numbers in the national economy that
Plaintiff could have performed prior to August 31, 2018, he was not disabled before that
date. Plaintiff became disabled on August 31, 2018, and has continued to be disabled
through the date of the decision.

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Tr. 19-36.

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20 C.F.R. §§ 404.1520, 416.920.

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

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DISCUSSION

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Plaintiff contends the ALJ erroneously rejected the psychological opinions of Melanie
Mitchell, Psy.D., Tasmyn Bowes, Psy.D., Phyllis Sanchez, Ph.D., and erred in giving weight to
the state agency doctors.
A.

Dr. Mitchell
Dr. Mitchell examined Plaintiff in January 2015 and completed a DSHS form opinion

finding Plaintiff has marked or severe functional limitations. Tr. 416-28. The ALJ gave “slight[]
weight” to Dr. Mitchell’s opinion. Tr. 30-31. The ALJ first discounted Dr. Mitchell's opinions
on the grounds she provided no explanation for her opinion. Substantial evidence does not
support the finding. Dr. Mitchell performed a clinical examination, noted Plaintiff's affect was
consistent with his mood ("pretty down"), appeared sullen and detached, had limited recent
memory, had impaired concentration; scored below average on standardized tests for
concentration, and had limited insight into his condition. Tr. 420.
Next, the ALJ rejected Dr. Mitchell because she reviewed "two year old DSHS
evaluations." Tr. 31. The ALJ did not explain why this was grounds to discount Dr. Mitchell's
opinions. The ALJ thus failed to provide a specific and legitimate reason to reject the doctor's
opinion and instead rejected the opinion based upon an impermissible conclusory reason.
The ALJ also erred in discounting in Dr. Mitchell’s opinion based upon the purpose for
which she conducted her examination. See Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996)
(“The purpose for which medical reports are obtained does not provide a legitimate basis for
rejecting them.”).

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The ALJ further rejected Dr. Mitchell's opinion as inconsistent with treating sources who

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found Plaintiff "largely able to function independently and satisfactorily (see Exhibit C-6-F)." Tr.

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31. The Exhibit at C-6-F contains 16 pages of records from the Downtown Emergency Services

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Mental Health Program. Tr. 394-409. The ALJ does not specify exactly why the records show

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Plaintiff is functioning independently or satisfactorily. These records indicate Plaintiff suffers

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from Major Depressive Disorder, recurrent, severe with psychotic behavior, other and

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unspecified alcohol dependence, and opioid dependence in remission. Tr. 394. The reveal

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Plaintiff may have a history of violence, endorsed past and present suicidal ideation, and has a

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past history of substance use and presently used marijuana. Tr. 395. The noted "client will

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express feelings of hopelessness, feeling nobody cares about him, will discuss plans for self harm

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and urges to use heroin. Client reports that he will stop eating and stay in bed all day." Tr. 396.

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One progress note indicates Plaintiff failed to appear for an appointment because he "forgot." Tr.

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397. In a record dated, April 21, 2016, Plaintiff reported he "is feeling pretty good." Tr. 398. On

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May 19, 2016, Plaintiff reported he was struggling with anxiety; is dependent upon women who

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pretend to care for him; doesn’t know what he would do without medication; has occasional

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thoughts of suicide; and makes himself go outside his house. Tr. 399. On June 19, 2016, Plaintiff

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appear as calm and cooperative but with depressed mood and guarded affect. Tr. 401. On June

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23, 2016, Plaintiff indicated he has been "okay" has occasional suicidal thoughts and struggles

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with some anxiety. Tr. 402. In August, 2016 Plaintiff reported worsening suicidal thoughts,

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increased isolation, and lack of motivation to do daily tasks, lack of pleasure doing hobbies and

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increased anxiety.

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Thus, the records relied upon by the ALJ do not establish Plaintiff is functioning

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satisfactorily or normally. Rather they show Plaintiff has some good moments but appears to be

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persistently depressed, anxious, and sometimes suicidal. Substantial evidence does not support

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the ALJ's finding and the ALJ accordingly erred.

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Lastly, the ALJ rejected Dr. Mitchell's opinion because she "does not mention the

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claimant's marijuana use." Tr. 31. The ALJ stated that this showed Dr. Mitchell does not have

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"complete information regarding the claimant's mental health issues." Id. The statement Dr.

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Mitchell might not have "complete information," does explain why Plaintiff's marijuana use is a

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reasonable basis to discount her opinions. Additionally, there are no records contemporaneous

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with Dr. Mitchell’s examination establishing Plaintiff was using marijuana when the doctor

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performed the examination in January 2015.

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There are records from the Downtown Emergency Services Mental Health Program,

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dated February 27, 2015, that noted Plaintiff admitted using "cannabis." Tr. 349. But these

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records do not indicate Plaintiff was using marijuana in January 2015 when Dr. Mitchell

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examined Plaintiff. Even assuming he was using marijuana, the ALJ provided no explanation for

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the relevance of Plaintiff's use. Plaintiff's records from the Downtown Emergency Services

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Mental Health Program indicate his treating doctors were aware of his past substance history and

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current marijuana use. These records, however, do not indicate that Plaintiff does not suffer

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serious mental illness or that marijuana use was the cause of Plaintiff's depression, anxiety, or

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suicidal symptoms. In short, the ALJ provided no explanation as to how or why Plaintiff's

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marijuana use affects the validity of Dr. Mitchell's opinion. The ALJ accordingly erred in

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rejecting Dr. Mitchell's opinions.

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B.

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Dr. Bowes
The ALJ rejected Dr. Bowes' opinions for essentially the same reasons he rejected Dr.

Mitchell's opinions and accordingly erred in rejecting Dr. Bowes' opinions.

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C.

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Dr. Sanchez
The ALJ rejected Dr. Sanchez’s opinion as reliant Dr. Mitchell’s previous evaluation, and

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for the same reasons he discounted Dr. Mitchell's opinions. As discussed above, the ALJ erred.

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The Court notes the ALJ also discounted Dr. Sanchez’s opinion regarding Plaintiff’s physical

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limitations. Plaintiff does not contest this finding as Dr. Sanchez did include any physical

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limitations in rendering her opinion about his mental health limitations.

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D.

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State Agency Opinions
Plaintiff argues the ALJ erred in crediting the State agency opinions over other opinions.

The argument matters only if the ALJ rejected the opinions of Drs. Mitchel, Bowes, and Sanchez

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on the grounds the state agency doctors offered contrary opinions. The ALJ did not and even if

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he did, the opinion of a non-examining physician cannot by itself constitute substantial evidence

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that justifies the rejection of the opinion of either an examining physician or a treating physician.

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Pitzer v. Sullivan, 908 F.2d 502, 506, n. 4; Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.

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1984). As the ALJ erred in rejecting the opinions of three examining doctors, the Court need not

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belabor further the ALJ's past assessment of the State agency doctors. On remand, the ALJ shall

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reassess the examining doctors' opinions and thus must necessarily reassess the agency doctor

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opinions.

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CONCLUSION
For the reasons above, the Court REVERSES the Commissioner’s final decision and

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REMANDS the case for further administrative proceedings under sentence four of 42 U.S.C. §

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405(g). The Commissioner has already found Plaintiff is disabled as of August 31, 2018. On

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remand, the ALJ shall therefore not disturb the final decision that Plaintiff is disabled as of

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August 31, 2018. On remand, the ALJ shall address Plaintiff's claim he was disabled before

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August 31, 2018 and shall reassess the opinions of Drs. Mitchell, Bowes, and Sanchez, develop

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the record and redetermine Plaintiff's RFC as needed and proceed to the remaining steps as

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appropriate.

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DATED this 6th day of October, 2021.

A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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