Pratt v. Colvin

Filing 25

ORDER re 3 Complaint filed by Joline Pratt - by Judge J Richard Creatura. the Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOLINE PRATT,

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Plaintiff,

CASE NO. 14-cv-05651 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, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 16, 23, 24).

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After considering and reviewing the record, the Court concludes that the ALJ
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failed to evaluate properly the medical evidence from an examining doctor. The ALJ’s
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finding that plaintiff was capable of maintaining a moderate pace, as opposed to working
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 as a slow pace, is not supported by substantial evidence in the record as a whole and
2 contradicts multiple objective findings from Dr. Boltwood.
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For this reason, this matter is reversed pursuant to sentence four of 42 U.S.C. §
405(g) and remanded to the Acting Commissioner for further consideration consistent
with this order.

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BACKGROUND
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Plaintiff, JOLINE PRATT, was born in 1983 and was 9 years old on the alleged
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date of disability onset of January 1, 1993 (see AR. 176-81). Plaintiff did not complete
high school and has not tried to get a GED (AR. 46-47). She worked briefly at

11 McDonald’s, but quit because she was too slow (AR. 47-48).
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According to the ALJ, plaintiff has at least the severe impairments of “borderline

13 intellectual functioning (20 CFR 416.920(c))” (AR. 26).
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At the time of the hearing, plaintiff was living with her mother (AR. 46).

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PROCEDURAL HISTORY
Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant
to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and
following reconsideration (see AR. 58-70, 72-85). Plaintiff’s requested hearing was held

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before Administrative Law Judge Stephanie Martz (“the ALJ”) on September 11, 2012
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(see AR. 38-57). On December 13, 2012, the ALJ issued a written decision in which the
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ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see
AR. 21-37).

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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

2 not the ALJ erred in rejecting Dr. Boltwood’s opinion that plaintiff would not be capable
3 of maintaining employment; (2) Whether or not the ALJ erred in affording significant
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weight to Dr. Lewy and Dr. Clifford, the non-examining sources; (3) Whether or not the
ALJ assured the plaintiff’s interests were considered at the hearing when plaintiff was

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represented by her mother; and (4) Whether or not these errors were harmful and resulted
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in a substantial likelihood of prejudice (see Dkt. 16, pp. 1-2).
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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

11 denial of social security benefits if the ALJ's findings are based on legal error or not
12 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
13 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
14 1999)).
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DISCUSSION
(1)

Whether or not the ALJ erred in rejecting Dr. Michael Boltwood’s
opinion that plaintiff would not be capable of maintaining employment.

Plaintiff contends that the ALJ erred in the evaluation of the opinion of examining

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doctor, Dr. Michael Boltwood, Ph.D., noting in part, that Dr. Boltwood “opined that
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plaintiff would not be able to maintain gainful employment at a job that required even
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‘limited vocational skills such as a fast food restaurant’” (see Dkt. 16, p. 7). Defendant
contends that the ALJ’s reasoning was valid and the findings with respect to the opinion

24 of Dr. Boltwood are supported by substantial evidence in the record.

ORDER ON PLAINTIFF’S COMPLAINT - 3

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When an opinion from an examining is contradicted by other medical opinions,

2 the examining doctor’s opinion can be rejected “for specific and legitimate reasons that
3 are supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 8304
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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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Dr. Boltwood examined plaintiff on June 23, 2011 and reviewed records (see AR.
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279-85). When reviewing plaintiff’s history, he noted that she was in special education
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classes throughout school, although she left school in the eighth grade because of teasing
and harassment from other students (see AR. 280). Although she was home schooled

11 after that point, Dr. Boltwood opined that because of “her mother’s apparent intellectual
12 difficulties I suspect that the extent and quality of [plaintiff’s] home schooling was quite
13 limited” (see id.). He previously had noted in his report that when testing plaintiff’s
14 intelligence and encountering a question that plaintiff could not answer, he would ask
15 plaintiff’s mother the same question and “she often would be unable to answer quite
16 simple questions,” noting for example, that “she was unable to tell me how many months
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there are in a year” (see AR. 79-80). Plaintiff has not received a high school diploma (see
AR. 280). Plaintiff reported working briefly at McDonald’s restaurant for approximately

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two months, but recalled that “she had a very difficult time learning tasks at work,” and
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found it difficult to cook hamburgers (see id.).
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Dr. Boltwood performed Wechsler Adult Intelligence Scale – III (WAIS-III)
testing on plaintiff and noted that plaintiff “appeared to give her full effort throughout the

24 testing,” and he opined that her testing data were a “valid representation of her current

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 cognitive abilities” (AR. 282). He noted that her “Full Scale IQ of 78 is typically
2 described as being in borderline range and places her at the 7th percentile for her age
3 group” (see id.). Dr. Boltwood concluded that the results of her WAIS-III subtests results
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suggest that her greatest difficulties are “with verbal comprehension, processing speed
and working memory” (see id.). Consistent with this conclusion, plaintiff’s performance
on the Trails A test demonstrated that she was below the 10th percentile and although she

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was able to complete the task, she worked slowly (see id.). Similarly, on the Trails B test
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plaintiff’s performance again was below the 10th percentile, and again Dr. Boltwood
noted that she “worked quite slowly” (see id.). Dr. Boltwood noted that both of plaintiff’s

11 Trails A and B scores “are below typical cutoffs for indicating cognitive impairment”
12 (see id.).
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Dr. Boltwood opined during plaintiff’s mental status examination (“MSE”) that

14 plaintiff “presented with a somewhat childlike manner consistent with her intellectual
15 limitations” (see AR. 281). He noted that plaintiff was cooperative and open throughout
16 the interview, and that there was “no evidence of malingering or purposefully
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exaggerating her situation or symptoms” (see id.). Dr. Boltwood opined that plaintiff’s
fund of knowledge appeared limited and childlike, observing that she could not name the

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U.S. vice president or the governor of Washington, and was unable to describe what was
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east of Washington (see id.). He observed that when plaintiff was “asked what lay to the
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west she initially responded, ‘Idaho,’ but when told that this was incorrect was unable to
provide any other answer” (see id.). Although plaintiff was able to complete serial seven

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ORDER ON PLAINTIFF’S COMPLAINT - 5

1 calculations, she counted on her fingers and calculated “the answers very slowly” (see
2 id.).
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Plaintiff demonstrated difficulty with abstract thought, explaining the meaning of
the saying “the early bird gets the worm,” as “It’s probably saying that you should get up
early;” and explaining “people in glass houses shouldn’t throw stones” as “because it

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would break” (see id.). Dr. Boltwood noted that when “asked if she could provide any
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further interpretation, she repeatedly responded that she did not know what else the
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saying might mean” (see id.). Plaintiff also demonstrated difficulty with questions testing
her insight and judgment, indicating that if she noticed smoke in a crowded theater, she

11 would “ask somebody else if they saw the smoke too” (see id.). When plaintiff was
12 “asked if there was any other way that she might respond or if there is anything else she
13 could think to do she replied, ‘Probably not’” (see id.).
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Plaintiff reported having a driver’s license, but noted that she needed to take the

15 test six times (AR. 283). Although she indicated that she likes to shop for clothes, Dr.
16 Boltwood noted that it appeared “that when she goes shopping she almost always has her
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mother with her” (see AR. 284). Although the WAIS-III Arithmetic Subtest indicates that
plaintiff could calculate change involving whole dollars, she “could not calculate

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expected change when it involved both dollars and cents” (see id.).
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Dr. Boltwood diagnosed plaintiff with Borderline Intellectual Functioning, and
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noted that plaintiff suffered from lack of vocational training and support (see id.). In his
summary assessment, Dr. Boltwood indicated as follows:

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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Given [plaintiff’s] “borderline” intellectual functioning and the difficulty
in having a clear understanding of her functional abilities based on her
current activities, valid assessment of her ability to maintain gainful
employment at this time is difficult and inevitably subjective. With these
caveats in mind, it is my assessment, based on my interview and testing,
that [plaintiff] is currently incapable of maintaining gainful employment.
This tentative conclusion is based on her limited intellectual abilities in
combination with her current naïve immaturity. In combination, I expect
that she would not currently be able to maintain gainful employment,
even in a job that requires limited vocational skills such as a fast food
restaurant.

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(AR. 284-85).
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The ALJ gave significant weight to the aspects of Dr. Boltwood’s assessment that

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supported a higher level of functioning but discounted all the aspects of his opinion that

11 supported a lesser level of functioning (see AR. 284). For example, the ALJ indicated
12 that Dr. Boltwood emphasized “that with some life skills, vocational training and support,
13 [plaintiff] could work” (see AR. 284-85). However, what Dr. Boltwood actually opined
14 was:
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As noted above, it is very unfortunate that [plaintiff] did not receive the
type of life skills and vocational training that would have been available
to her if she had stayed in school. With this type of appropriate training,
supervision, and support, I believe that she has the potential to maintain
gainful employment. I also believe that, with appropriate life skills
training and ongoing support, she has the potential to live independently.
I would strongly recommend that she be referred to the appropriate state
and community programs that would hopefully provide her with the
vocational training, life skills training, job placement services, and job
support that are appropriate and needed by an individual with her
intellectual limitations.

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(AR. 285).
A review of Dr. Boltwood’s opinion reveals that he indicated that it was

24 unfortunate that plaintiff did not receive skills and training that would have allowed her

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 to be able to work (see id.). It also is clear that he indicated that if she obtained training,
2 supervision, and support that she would have the potential to work in the future (see id.).
3 This is buttressed by his recommendation that she receive such training, services, and
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support, as well as by his opinion that she needed receipt of such training, services and
support if she was to gain the ability to work in the future (see id.). Therefore, the

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reliance by the ALJ on this aspect of Dr. Boltwood’s opinion to support a finding that
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plaintiff was able to work at the time he made his assessment is not supported by
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substantial evidence in the record.
In addition, the ALJ gave “little weight” to Dr. Boltwood’s opinion that plaintiff

11 was not able to maintain employment (see AR. 32). The ALJ supported this conclusion
12 by finding that “there is no objective evidence that she is unable to work entirely” (see
13 id.). However, this finding by the ALJ ignores much of the objective evidence from Dr.
14 Boltwood’s testing, MSE and his interview results, discussed by the Court above.
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The ALJ concluded that plaintiff’s “performance on [MSE], her range of activities

16 and the doctor’s high GAF rating,” demonstrate that plaintiff is capable of performing
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simple tasks at a moderate pace (see id.). As the Court has discussed, however, plaintiff’s
performance on the MSE demonstrates through multiple objective tests that plaintiff

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“worked quite slowly” (see, e.g., AR. 282).
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Dr. Boltwood concluded that the results of her WAIS-III subtests suggest that her
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greatest difficulties include problems with “processing speed” (AR. 282). Similarly,
plaintiff’s performance on Trails A demonstrated that she was below the 10th percentile

24 and she worked slowly (see id.). Similarly, on the Trails B test plaintiff’s performance

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 again was below the 10th percentile, and again Dr. Boltwood noted that she “worked quite
2 slowly” (see id.). In addition, during the MSE, plaintiff was able to complete serial seven
3 calculations, but only by counting on her fingers and by calculating “the answers very
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slowly” (see AR. 281). During the MSE, plaintiff also demonstrated difficulty with
questions testing her fund of knowledge, her ability for abstract thought, and her insight

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and judgment (see id.). Therefore, the Court concludes that the ALJ’s finding that
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plaintiff’s MSE demonstrates that plaintiff was capable of working at a moderate pace is
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not supported by substantial evidence in the record as a whole (see AR. 32). To the
contrary, plaintiff’s MSE demonstrates that plaintiff only was capable of completing

11 simple tasks “very slowly” (see AR. 281).
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Similarly, plaintiff’s GAF score is an overall assessment encompassing many

13 aspects of functioning, and the “Social Security Administration has not endorsed the
14 GAF scale for use in the Social Security and SSI disability programs, and has indicated
15 that GAF scores have no ‘direct correlation to the severity requirements in the mental
16 disorders listings.’” See De Los Reyes v. Comm’r of Soc. Sec. Admin., No. 12-CV-0204817
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AC, 2014 WL 61320 at *13, 2013 U.S. Dist. LEXIS 182768 at *37 (D. Oregon
December 5, 2103) (citing Revised Medical Criteria for Evaluating Mental Disorders and

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Traumatic Brain Injury, 65 Fed. Reg. § 50746-01 (Aug. 21, 2000); Thomas v. Astrue, CV
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07-8040-PLA, 2009 U.S. Dist. LEXIS 5104, 2009 WL 151488 at *6 (C.D. Cal. Jan. 21,
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2009)). Plaintiff’s GAF score does not demonstrate that plaintiff is capable of working at
a moderate pace.

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ORDER ON PLAINTIFF’S COMPLAINT - 9

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Finally, although the ALJ concludes that plaintiff’s “range of activities”

2 demonstrates that plaintiff is capable of working at a moderate pace, the ALJ does not
3 specify a single activity that demonstrates that plaintiff is capable of working at a
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moderate pace as opposed to the very slow pace demonstrated by her MSE and WAIS-III
tests. Plaintiff’s activities included “attending to self-care, preparing meals, household

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chores, using the computer, grocery shopping and running errands with her mother,” as
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well as “ice-skating, swimming, watching movies, and taking walks on the beach” (see
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AR. 31). The ALJ does not cite any evidence in the record demonstrating that any of
these activities was performed at a moderate pace as opposed to at a slow pace.
For the reasons stated, and based on the record as a whole, the Court concludes

12 that the ALJ’s finding that plaintiff’s performance on MSE, her range of activities, and
13 plaintiff’s GAF rating demonstrate that plaintiff is capable of working at a moderate pace
14 is not supported by substantial evidence in the record as a whole (see AR. 32). The ALJ
15 did not explain why her assessment more correct that the psychologist who performed
16 extensive testing of plaintiff. However, when an ALJ seeks to discredit a medical
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opinion, she must explain why her own interpretations, rather than those of the doctors,
are correct. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Embrey v.

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Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)); see also Blankenship v. Bowen, 874 F.2d
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1116, 1121 (6th Cir. 1989) (“When mental illness is the basis of a disability claim,
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clinical and laboratory data may consist of the diagnosis and observations of professional
trained in the field of psychopathology. The report of a psychiatrist should not be rejected

24 simply because of the relative imprecision of the psychiatric methodology or the absence

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 of substantial documentation”) (quoting Poulin v. Bowen, 817 F.2d 865, 873-74 (D.C.
2 Cir. 1987) (quoting Lebus v. Harris, 526 F.Supp. 56, 60 (N.D. Cal. 1981))); Schmidt v.
3 Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“judges, including administrative law judges
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of the Social Security Administration, must be careful not to succumb to the temptation
to play doctor. The medical expertise of the Social Security Administration is reflected in

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regulations; it is not the birthright of the lawyers who apply them. Common sense can
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mislead; lay intuitions about medical phenomena are often wrong”) (internal citations
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omitted)).
Dr. Boltwood conducted extensive testing of plaintiff, and many of plaintiff’s test

11 results reveal that plaintiff is capable of performing simple tasks only at a very slow pace.
12 The ALJ’s rejection of Dr. Boltwood’s opinion that plaintiff is incapable of maintaining
13 gainful employment, and that “she would not currently be able to maintain gainful
14 employment, even in a job that requires limited vocational skills such as a fast food
15 restaurant,” is not supported by substantial evidence in the record as a whole (see AR.
16 284-85). The ALJ’s contrary finding that plaintiff is capable of performing work at a
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moderate pace contradicts the objective testing results of Dr. Boltwood.
The Court also concludes that this error is not harmless.

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The Ninth Circuit has “recognized that harmless error principles apply in the
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Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
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(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
Cir. 2006) (collecting cases)). The Ninth Circuit noted that “in each case we look at the

24 record as a whole to determine [if] the error alters the outcome of the case.” Id. The court

ORDER ON PLAINTIFF’S COMPLAINT - 11

1 also noted that the Ninth Circuit has “adhered to the general principle that an ALJ’s error
2 is harmless where it is ‘inconsequential to the ultimate nondisability determination.’” Id.
3 (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))
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(other citations omitted). Courts must review cases “‘without regard to errors’ that do not
affect the parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinsheki v. Sanders, 556

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U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111) (codification of the harmless error
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rule)).
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Here, in contrast with the objective testing results of Dr. Boltwood, the ALJ found
that plaintiff had the residual functional capacity (“RFC”) to perform “work at a

11 moderate pace” (see AR. 29, 32). The ALJ utilized this RFC when presenting a
12 hypothetical to the vocational expert (“VE”) and when making her step five finding in
13 reliance on the VE’s testimony that plaintiff could perform work in the national economy
14 (see AR. 33-34, 56). The ALJ’s ultimate conclusion that plaintiff was not disabled was
15 based on the VE’s testimony, which was based on this RFC (see id.). Furthermore,
16 tellingly, the VE testified that if a hypothetical individual with plaintiff’s RFC “was
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slower in speed and ended up being approximately twenty percent slower than the
average worker,” such individual would be “an hour and a half less competitive than their

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co-workers and I don’t believe that employers would tolerate that, at least for very long at
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any job” (AR. 56-57). Therefore, had the ALJ included in plaintiff’s RFC that she only
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was capable of performing work at a slow pace, it is likely that she would have been
required to find plaintiff disabled (see id.).

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ORDER ON PLAINTIFF’S COMPLAINT - 12

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However, although likely, it is not evident that the objective results of plaintiff’s

2 testing with Dr. Boltwood require a finding that plaintiff would be off-pace by twenty
3 percent. Therefore, this matter should be reversed and remanded for further
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administrative proceedings to determine the exact amount by which plaintiff’s pace is
reduced if the objective results obtained by Dr. Boltwood are fully accommodated into

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plaintiff’s RFC. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citations
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omitted) (the matter should not be remanded with a direction to award benefits if it is not
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clear from the record that the ALJ would be required to find plaintiff disabled were the
inappropriately discredited evidence credited in full).
(2)

Whether or not the ALJ erred in affording significant weight to Dr.
Lewy and Dr. Clifford, the non-examining sources and whether or not
the ALJ assured that plaintiff’s interests were considered at the
hearing when plaintiff was represented by her mother.

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Because the Court has concluded that this matter must be reversed and remanded

15 for further consideration of the medical evidence, see supra, section 1, plaintiff’s
16 remaining contentions will not be discussed herein.
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CONCLUSION

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The ALJ’s finding that plaintiff was capable of maintaining competitive work at a
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moderate pace is not supported by substantial evidence in the record as a whole and is
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contrary to the medical evidence obtained through objective testing by examining doctor,
Dr. Boltwood.

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1

Based on this reason and the relevant record, the Court ORDERS that this matter

2 be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to
3 the Acting Commissioner for further consideration consistent with this order.
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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 17th day of March, 2015.

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A
J. Richard Creatura
United States Magistrate Judge

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