Enger v. Colvin

Filing 14

ORDER re 1 Complaint filed by Stephanie L Enger - ORDERED that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further proceedings consistent with this Order -- by Judge J Richard Creatura. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STEPHANIE L. ENGER,

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Plaintiff,

CASE NO. 14-cv-05317 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, 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

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, ECF No. 3; Consent to Proceed Before a United
States Magistrate Judge, ECF No. 4). This matter has been fully briefed (see ECF Nos.

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11, 12, 13).
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After considering and reviewing the record, the Court finds that the ALJ failed to
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provide a specific and legitimate reason for her failure to credit fully the opinions of an
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 examining doctor and a treating doctor. The ALJ indicated that she was not crediting
2 fully the opinion of the examining doctor because of a finding that the doctor relied on a
3 “snapshot” of plaintiff’s functioning, as the examining doctor only examined plaintiff on
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one occasion. However, as the ALJ discounted this doctor’s opinion in favor of the
opinions of doctors who never examined plaintiff at all, this reason is not legitimate.

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Similarly, the ALJ discounted the treating doctor’s opinion in favor of non-examining
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state agency medical consultants with a finding that “it was based on a brief treatment
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relationship, which was insufficient to assess the claimant’s functional limitations” (Tr.
23). As the opinions relied on by the ALJ were provided by doctors with no treatment

11 relationship with plaintiff, and as plaintiff’s impairments are mental impairments most
12 effectively evaluated with an in-person evaluation, this reason is not legitimate. The ALJ
13 also erred by finding that both of these doctors relied heavily on plaintiff’s self-report
14 without citing any substantial evidence in the record to support such findings.
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Therefore, this matter is reversed and remanded pursuant to sentence four of 42

16 U.S.C. § 405(g) to the Acting Commissioner for further administrative proceedings.
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BACKGROUND
Plaintiff, STEPHANIE L. ENGER, was born in 1973 and was 36 years old on the

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amended alleged date of disability onset of February 12, 2010 (see Tr. 34, 200, 206).
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Plaintiff graduated from high school (Tr. 37). She has work experience as a floral
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manager in a grocery store, shift supervisor in a fast food restaurant, cashier in a gas
station, housekeeper/laundry in a nursing home, waitress, bartender and cook at a bar and

24 grill, and sorter/stocker in a clothing store. Her last employment ended when it became

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 too hard to be around people and she was having a hard time keeping track of what she
2 had done (Tr. 38-42).
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According to the ALJ, plaintiff has at least the severe impairments of “bipolar
disorder and anxiety disorder with panic and with agoraphobia (20 CFR 404.1520(c) and
416.920(c))” (Tr. 16).

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At the time of the hearing, plaintiff was living with her husband, 14 year-old son
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and 5 year-old daughter (Tr. 53-54).
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PROCEDURAL HISTORY

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Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42

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11 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
12 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
13 following reconsideration (see Tr. 136-38, 139-42, 144-48, 149-55). Plaintiff’s requested
14 hearing was held before Administrative Law Judge Mattie Harvin Woode (“the ALJ”) on
15 November 8, 2012 (see Tr. 31-81). On November 27, 2012, the ALJ issued a written
16 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social
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Security Act (see Tr.11-30).

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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

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not the ALJ erred in rejecting the medical opinions of Mary Lemberg, M.D. and Michael
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W. Johnson, M.D.; and (2) Whether or not the ALJ’s errors were harmless (see ECF No.
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11, p. 1).
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ORDER ON PLAINTIFF’S COMPLAINT - 3

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

3 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
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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DISCUSSION

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(1)

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Whether or not the ALJ erred in rejecting the medical opinions of
Mary Lemberg, M.D. and Michael W. Johnson, M.D.

Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for
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her failure to credit fully the opinions of examining psychiatrist, Dr. Mary Lemberg,
M.D., as well as the opinions of treating physician, Dr. Michael W. Johnson, M.D. (see

14 Opening Brief, ECF No. 11; see also Reply, ECF No. 13). Defendant contends that the
15 ALJ’s reasons are specific and legitimate and supported by substantial evidence in the
16 record as a whole (see Response, ECF No. 12).
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According to the Ninth Circuit, when a treating or examining physician’s opinion

18 is contradicted, that opinion can be rejected “for specific and legitimate reasons that are
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supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v.
Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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A. Examining Psychiatrist, Dr. Mary Lemberg, M.D.
Dr. Lemberg examined plaintiff at the request of the Administration (see Tr. 376-

3 83). She indicated that she reviewed a psychiatric evaluation from May, 2010 (see Tr.
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376). Dr. Lemberg took a detailed history (see Tr. 376-79). She also conducted a mental
status examination (see Tr. 379-80). For example, she observed that plaintiff was

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nervous, more so at the beginning of the examination, and also observed that plaintiff’s
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hands were shaking (see Tr. 379). Dr. Lemberg observed that plaintiff correctly followed
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a 3-step command, but demonstrated “some worry that she was performing it incorrectly”
(Tr. 380). Regarding her ability to spell world backwards, she had a “score of 3/5 on her

11 first attempt; [but] she ma[de] two other attempts after self-correcting herself and does
12 finally do this correctly” (see id.). Regarding plaintiff’s activities of daily living, among
13 other things, Dr. Lemberg noted that plaintiff “only shops at one store where she knows
14 all the employees” (see id.). She also noted that plaintiff reported that “she does not
15 watch TV because it overwhelms her and does not make sense” (see Tr. 381).
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Among other diagnoses, Dr. Lemberg diagnosed plaintiff with “Bipolar I disorder,
most recent episode depressed, severe, rule out schizoaffective disorder;” panic disorder
with agoraphobia; and, social phobia (see id.). Dr. Lemberg opined that plaintiff was

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suffering from “fairly significant symptoms that limit her ability to function at times”
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(see id.). Dr. Lemberg also opined that plaintiff’s “condition will not likely improve
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further within the next 12 months” (id.). Dr. Lemberg opined that plaintiff “would find it
difficult to adapt to new environments” and Dr. Lemberg specified that this opinion was

24 “based on our interview today and mental status exam” (see Tr. 382). Dr. Lemberg

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 further opined that plaintiff “cannot perform work activities on a consistent basis or
2 complete a normal workweek without problematic interruption from her psychiatric
3 conditions after working for a period of time” (see id.). Dr. Lemberg indicated that she
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anticipated that plaintiff “would have significant difficulty dealing with the usual stress
encountered in a competitive work environment” (see id.).

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The ALJ gave “little weight to Dr. Lemberg’s statements that the claimant would
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not be able to work on a consistent basis and would have significant difficulty dealing
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with the stress of a competitive work environment” (see Tr. 23). The ALJ provided two
reasons for giving little weight to these opinions by Dr. Lemberg (see id.). First, the ALJ

11 indicated that these opinions from Dr. Lemberg appear to be an “overstatement of the
12 claimant’s limitations based on a snapshot of the claimant’s individual functioning” (see
13 id.).
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If the ALJ was discrediting the opinions from Dr. Lemberg on the basis of a

15 “snapshot” of plaintiff’s functioning at one examination in favor of a doctor who
16 examined plaintiff more than once, or in favor of a treating doctor, this reason would
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have some legitimacy. However, for her RFC determination, the ALJ relied on two state
agency psychological consultants who never examined plaintiff, but only reviewed her

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records (see Tr. 22-23; see also Tr. 19). In addition, plaintiff’s impairments are mental
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impairments, which are more amenable to evaluation by an in-person examination. See
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Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination 3
(Oxford University Press 1993) (“experienced clinicians attend to detail and subtlety in

24 behavior, such as the affect accompanying thought or ideas, the significance of gesture or

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 mannerism, and the unspoken message of conversation”). Therefore, the fact that Dr.
2 Lemberg examined plaintiff only once and had only a “snapshot” of her functioning is
3 not a legitimate reason for the ALJ’s failure to credit fully the opinion of examining
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psychiatrist Dr. Lemberg in favor of opinions from nonexamining doctors. According to
the Ninth Circuit, an examining physician’s opinion is “entitled to greater weight than the

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opinion of a nonexamining physician.” Lester, supra, 81 F.3d at 830 (citations omitted);
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see also 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more weight to the opinion of a
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source who has examined you than to the opinion of a source who has not examined
you”).
The second reason provided by the ALJ for her failure to credit fully some of the

12 opinions of Dr. Lemberg was the ALJ’s finding that Dr. Lemberg’s opinion “relies
13 heavily on the claimant’s subjective report of her symptoms” (see Tr. 23). The ALJ
14 provides no evidence for this finding. Based on a review of the relevant record, there
15 does not appear to be substantial evidence in support of this finding by the ALJ of a
16 heavy reliance by Dr. Lemberg on plaintiff’s subjective report. Furthermore, the Court
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notes that when opining that plaintiff “would find it difficult to adapt to new
environments,” Dr. Lemberg specified that this opinion was “based on our interview

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today and mental status exam” (see Tr. 382). Although Dr. Lemberg did not indicate
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specifically the basis for her opinions regarding plaintiff’s inability to work on a
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consistent basis and her significant difficulty dealing with stress and competitive work
environment, the finding by the ALJ that these opinions were “heavily” based on

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ORDER ON PLAINTIFF’S COMPLAINT - 7

1 plaintiff’s subjective report is not a logical inference based on the record, but appears to
2 be mere speculation.
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An ALJ may “draw inferences logically flowing from the evidence.” Sample v.
Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Beane v. Richardson, 457 F.2d 758
(9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ

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may not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at *22.
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Furthermore, the MSE is not generally considered “subjective.” “Like the physical
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examination, the Mental Status Examination is termed the objective portion of the patient
evaluation.” Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status

11 Examination 4 (Oxford University Press 1993) (emphasis in original). Therefore,
12 characterizing Dr. Lemberg’s conclusions as largely based on plaintiff’s subjective
13 statements fails to account for the objective finding in the MSE.
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B. Treating physician, Dr. Michael W. Johnson. M.D.
Dr. Johnson provided an opinion regarding plaintiff’s ability to function on June 3,

16 2011 (see Tr. 394-95; see generally Tr. 392-95). He indicated his opinion that she
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suffered from anxiety; panic attacks; agoraphobia; and bipolar disorder (see Tr. 394). He
indicated that she had specific limitations with respect to following instructions and he

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specified that her limitation with respect to interacting with people was “severe” (see id.).
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When asked to indicate on the form how many hours per week that plaintiff was capable
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of working, he checked the box for 0 hours, indicating that she was “unable to
participate” (see id.). He also indicated that plaintiff suffered from limitations in activities

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ORDER ON PLAINTIFF’S COMPLAINT - 8

1 memory issues (see id.). Again, he indicated that the amount of time that she could
2 engage in these activities was zero hours, indicating that she was “unable to participate”
3 (see id.). Dr. Johnson opined that plaintiff’s condition likely would limit her ability to
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work and look for work on a permanent basis (see Tr. 395).
The ALJ gave “less weight” to the opinions of Dr. Johnson for two stated reasons

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(see Tr. 23). First, the ALJ found that Dr. Johnson’s opinion “was based on a brief
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treatment relationship, which was insufficient to assess the claimant’s functional
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limitations,” noting that Dr. Johnson rendered his opinion at his first office visit (see id.).
Again, as the ALJ relied for her RFC determination on the opinions of state

11 agency medical consultants who had no opportunity to assess firsthand plaintiff’s
12 limitations, and because plaintiff’s impairments are mental impairments, this reason is
13 not a legitimate reason to discount the opinions of plaintiff’s treating physician in favor
14 of the opinions of nonexamining doctors. See Lester, supra, 81 F.3d at 830 (citations
15 omitted) (an examining physician’s opinion is “entitled to greater weight than the opinion
16 of a nonexamining physician”); see also 20 C.F.R. § 404.1527(c)(1)(“Generally, we give
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more weight to the opinion of a source who has examined you than to the opinion of a
source who has not examined you”).

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The only other reason offered by the ALJ for her failure to credit fully the
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opinions of Dr. Johnson was her finding that “[b]ecause the treatment relationship was so
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brief, Dr. Johnson must have relied heavily on the claimant’s subjective report of her
symptoms” (see Tr. 23). Again, the ALJ provides no evidence for her finding that

24 plaintiff’s treating physician relied heavily on plaintiff’s subjective reports other than the

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 fact that he provided his opinion on his first examination of plaintiff. This is not
2 substantial evidence in support of this finding. Again, the ALJ appears not to have made
3 a logical inference, but instead appears to be speculating. See SSR 86-8, 1986 SSR
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LEXIS 15 at *22 (an ALJ may not speculate).
(2)

Whether or not the ALJ’s errors were harmless.

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A. Dr. Lemberg
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Dr. Lemberg opined that plaintiff “cannot perform work activities on a consistent
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basis or complete a normal workweek without problematic interruption from her
psychiatric conditions after working for a period of time” (see Tr. 382). Dr. Lemberg

11 indicated that she anticipated that plaintiff “would have significant difficulty dealing with
12 the usual stress encountered in a competitive work environment” (see id.).
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The ALJ failed to incorporate these limitations into plaintiff’s RFC (see Tr. 19).

14 Had the ALJ done so, plaintiff’s RFC would have been determined to be very different
15 and likely would have led to a finding of disability. Therefore, the ALJ’s error in her
16 review of the opinions of Dr. Lemberg is not harmless error.
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B. Dr. Johnson
Dr. Johnson opined that plaintiff was not capable of working any hours per week

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due to her inability to follow instructions and her severe limitation interacting with
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people (see Tr. 394). Obviously, had these opinions been credited fully, plaintiff’s RFC
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would have been determined to be very different, and she likely would have been found
to be disabled. Therefore the ALJ’s error in the evaluation of the opinions of Dr. Johnson

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CONCLUSION
Based on the stated reasons and the relevant record, the Court ORDERS that this

3 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 proceedings consistent with this Order.
JUDGMENT should be for plaintiff and the case should be closed.
Dated this 23rd day of September, 2014.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 11