O'Neal v. Colvin

Filing 14

ORDER re 3 Complaint - 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. Nancy A. Berryhill (Acting Commissioner of the Social Security Administration) added. Carolyn W. Colvin (Acting Commissioner of Social Security) terminated.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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AMANDA O'NEAL,

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Plaintiff,

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CASE NO. 3:16-cv-05700 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration, 1

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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. 11, 12, 13.

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
23 Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit, pursuant to the last sentence of
24 section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

ORDER ON PLAINTIFF’S COMPLAINT - 1

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After considering and reviewing the record, the Court concludes the ALJ

2 committed harmful legal error when she failed to credit fully the medical opinion of an
3 examining doctor regarding plaintiff’s workplace limitations. The ALJ’s conclusory
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opinion that the record is completely devoid of support for the doctor’s opinion is
contrary to the record as a whole, which includes six years of supportive objective

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findings from three other treating providers. Additionally, the ALJ’s conclusion that the
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doctor’s opinions are inconsistent with plaintiff’s activities is not based on substantial
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evidence, but rather upon an undeveloped record regarding plaintiff’s parenting skills and
custody dispute, and an isolated incident in which plaintiff successfully managed anger.
Therefore, this matter is reversed pursuant to sentence four of 42 U.S.C. § 405(g)

12 and remanded to the Acting Commissioner for further administrative proceedings.

BACKGROUND

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Plaintiff, AMANDA O’NEAL, was born in 1982 and was 24 years old on the

15 alleged date of disability onset of February 15, 2007. See AR. 409-10, 411-19. Plaintiff
16 did not complete high school, but has her GED. AR. 48. She has some work experience
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as a backroom stocker and has worked temporarily as a clam digger, planter in a
greenhouse, and hostess in a restaurant. AR. 50-51. Plaintiff last worked part-time for

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Target as a backroom stocker in 2005 and 2006. AR. 48.
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According to the ALJ, plaintiff has at least the severe impairments of “cervical and
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lumbar back strain; congenital fusion of C4-5, with mild changes; possible Chiari I
malformation; right wrist extensor and tendonitis; affective disorder; posttraumatic stress

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ORDER ON PLAINTIFF’S COMPLAINT - 2

1 disorder (PTSD); borderline personality disorder; and polysubstance dependence, in
2 sustained remission since 2010 (20 CFR 404.1520(c) and 416.920(c)).” AR. 17.
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At the time of the hearing, plaintiff was living in a transitional women and
children’s house with her 3 ½ year old daughter. AR. 47-48.

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PROCEDURAL HISTORY

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Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42
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U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
following reconsideration. See AR. 134-45, 148-58, 161-77, 178-94. Plaintiff’s first

11 hearing resulted in an unfavorable decision by the Administrative Law Judge. See AR.
12 199-218. The Appeals Council remanded (AR. 219-22) and plaintiff’s second hearing
13 was held before Administrative Law Judge Stephanie Matz (“the ALJ”) on June 17,
14 2014. See AR. 38-82. On September 8, 2014, the ALJ issued a written decision in which
15 the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See
16 AR. 11-35.
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ erred in her evaluation of the medical opinion evidence; (2) Whether or not

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the ALJ erred in her evaluation of plaintiff’s credibility; (3) Whether or not the ALJ erred
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in her evaluation of the lay witness statement pertaining to plaintiff’s mental
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impairments; and (4) Whether or not the proper remedy for the errors is a remand for
payment of benefits. See Dkt. 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)

Whether or not the ALJ erred in her evaluation of the medical opinion
evidence.

Plaintiff argues that the ALJ failed to provide legitimate reasons, supported by
substantial evidence in the record for rejecting the opinions of three examining sources in
favor of the opinion of state agency sources. Dkt. 11, pp. 2-10. Defendant contends there

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is no harmful legal error. Dkt. 12.
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When an opinion from an examining or treating doctor is contradicted by other
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medical opinions, the treating or examining doctor’s opinion can be rejected only “for
specific and legitimate reasons that are supported by substantial evidence in the record.”

18 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d
19 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); see
20 also 20 C.F.R. §§ 404.1527(a)(2)
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Dr. John Lowry, D.O. performed a psychological evaluation of plaintiff on August

22 4, 2007. AR. 715-19. During his evaluation, Dr. Lowry examined plaintiff, reviewed
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plaintiff’s records and medical history, administered tests, and made diagnosis based on

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ORDER ON PLAINTIFF’S COMPLAINT - 4

1 his observations and clinical interview of plaintiff. Id. Dr. Lowry then opined that “it was
2 unclear whether the claimant could perform activities on a consistent basis without
3 special or additional supervision, maintain regular attendance in the workplace, complete
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a normal workday/workweek without interruptions from her psychiatric condition, or
deal with the usual stress encountered in competitive work.” AR. 718.

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The ALJ gave little weight to the opinion of Dr. Lowry, in part with a finding that
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Dr. Lowry’s opinion is inconsistent with the record, which fails to indicate that plaintiff
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requires additional supervision or is unable to deal with routine stress. AR. 26. The ALJ
specified that plaintiff has demonstrated that she was able to care for her infant daughter

11 with minimal support from family and community organizations, and that plaintiff was
12 able to control her anger in the face of stress and frustration. Id. The Court finds these
13 reasons were not supported by substantial evidence for several reasons.
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First, the ALJ’s statement that there is “no evidence in the record indicating

15 claimant would need additional supervision” in the workplace is conclusory and is
16 inconsistent with the record as a whole. Dr. Lowry specifically stated that his opinion
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regarding plaintiff’s workplace limitations was based on his independent diagnosis of
plaintiff as having bipolar disorder, posttraumatic stress disorder, panic disorder, and

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major depressive disorder. AR. 718. He indicated that a workplace environment would
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exacerbate symptoms associated with these conditions, resulting in limitations. Id. Dr.
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Lowry’s rationale is further consistent with various other medical providers’ diagnoses
and observations of plaintiff’s limitations especially regarding plaintiff’s inability to

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ORDER ON PLAINTIFF’S COMPLAINT - 5

1 independently complete tasks, stay focused, and exercise appropriate judgment without
2 guidance. AR. 547, 555, 562, 658, 710, 807-09.
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Between 2007 and 2014, four different treating mental health providers have
examined and psychologically evaluated plaintiff. AR. 547, 555. 562, 710, 715-718, 80609. On each occasion, the examiner has offered an opinion that plaintiff’s symptoms

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would result in workplace limitations. Id. Plaintiff’s medical records repeatedly show that
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plaintiff “never finishes or stays on task,” becomes sidetracked easily, is easily confused,
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and has moderate to marketed cognitive difficulties exercising judgment, making
decisions, remembering instructions, and carrying out assignments. Id. Plaintiff also has a

11 history of “impulsivity, affective instability due to market reactivity of mood and
12 inappropriate, intense anger, which she has had difficulty controlling.” AR. 658.
13 Plaintiff’s limitations have resulted in difficulties in interpersonal relationships and
14 regular job turnover. AR. 655, 658, 716. Therefore the record is not, as stated by the ALJ,
15 devoid of support for Dr. Lowry’s conclusion that plaintiff would require additional
16 supervision in the workplace. Rather, the record contains considerable support for Dr.
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Lowry’s conclusions.
Second, the ALJ failed to fully credit Dr. Lowry’s opinion that plaintiff cannot

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handle routine stress with a finding that Dr. Lowry’s opinions were inconsistent with
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plaintiff’s activities including her ability to gain custody of and care for her daughter and
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maintain appropriate behavior during therapy sessions. See AR. 26. The ALJ specifically
found that plaintiff “successfully navigat[ed] the court system to maintain full custody of

24 her daughter” and that “if [plaintiff] were unable to care for her child, it is doubtful that

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 the court would have awarded her with full custody.” AR. 22, 26-27. The ALJ further
2 found that plaintiff interacted without incident with counselors and individuals also
3 residing in transitional housing. Id. The ALJ correlated these skills and activities as
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showing plaintiff’s ability to “handle routine stressors and responsibilities.” Id.
Regarding activities of daily living, the Ninth Circuit provides that the ALJ “must

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make ‘specific findings relating to the daily activities’ and their transferability to
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conclude that a claimant’s daily activities warrant an adverse determination regarding if a
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claimant’s statements should be credited. Orn v. Astrue, 495 F.3d 625, 639 (quoting
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). Here, the ALJ’s conclusions are

11 without support from the record and devoid of findings regarding their transferability.
12 The record lacks any evidence indicating that plaintiff was awarded parental custody on
13 the merits of her parenting skills after she “successfully navigated the court system.” In
14 fact, the only mention of plaintiff’s custody proceedings in the record demonstrates that
15 her counselor referred her to NW Justice Project for assistance with custody paperwork
16 and that plaintiff self reportedly hired a court facilitator to further assist her with the
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process. AR. 778, 790-91. The ALJ makes no mention of her investigation into plaintiff’s
role in these court proceedings, the procedural history of the custody dispute, or the

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factual and legal bases upon which the court awarded plaintiff custody. The ALJ further
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failed to investigate the quality of plaintiff’s parenting skills or the time she commits to
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parenting, explore whether plaintiff receives help with this task, or demonstrate how
these skills are transferable to a work setting.

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ORDER ON PLAINTIFF’S COMPLAINT - 7

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Additionally, the ALJ failed to support her conclusion that plaintiff has

2 successfully managed her anger and maintained appropriate behavior with substantial
3 evidence in the record. While it is true that plaintiff’s counselors have not noted plaintiff
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to be combative during counseling or group therapy sessions, they have also not noted
she has made improvements in these areas. Rather, the records cited by the ALJ simply

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show plaintiff’s attendance to these sessions. AR. 751-768. Moreover, the isolated
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incident the ALJ cited demonstrating plaintiff’s ability to handle a stressful traveling
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situation is not substantially supportive of the ALJ’s conclusion. In fact, the record as a
whole indicates that plaintiff has consistently struggled with controlling her emotions and

11 handling routine stress. See AR. 506, 532 (indicating plaintiff is irritable); see also AR.
12 556 (recommending anger management); see also AR. 557 (indicating plaintiff was very
13 emotional); see also AR. 65, 104 (plaintiff required time to compose herself); see also
14 AR. 562, 655, 658, 711 (noting anger issues).
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For the reasons stated and based on the record as a whole, the Court concludes that

16 the ALJ failed to provide specific and legitimate reasons based on substantial evidence in
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the record in support of her decision to discount the opinions of Dr. Lowry. The Court
also concludes that the 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)). Recently the Ninth Circuit reaffirmed the explanation in

24 Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]
2 error harmless unless it can confidently conclude that no reasonable ALJ, when fully
3 crediting the testimony, could have reached a different disability determination.’” Marsh
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v. Colvin, 792 F.3d 1170, 1173 (9th Cir. July 10, 2015) (citing Stout, 454 F.3d at 105556). In Marsh, even though “the district court gave persuasive reasons to determine

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harmlessness,” the Ninth Circuit reversed and remanded for further administrative
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proceedings, noting that “the decision on disability rests with the ALJ and the
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Commissioner of the Social Security Administration in the first instance, not with a
district court.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-(3)).
Here, it is not clear from the record that the ALJ would be required to find plaintiff

12 disabled were the inappropriately discredited evidence credited in full. See Harman,
13 supra, 211 F.3d at 1178 (quoting Smolen, supra, 80 F.3d at 1292). Additionally,
14 outstanding issues must be resolved. See Treichler v. Comm’r of Soc. Sec. Admin., 775
15 F.3d 1090, 1100 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.
16 2012) (“we generally remand for an award of benefits only in the ‘rare circumstances,’
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Moisa, 367, F.3d at 886, ‘where no useful purpose would be served by further
administrative proceedings and the record has been thoroughly developed”). While the

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ALJ repeatedly cites and comments on plaintiff’s parenting skills and ability to navigate
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the court system in discrediting plaintiff and her providers’ opinions, factual support for
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these conclusions is absent from the record. On remand the ALJ should develop the
record with regard to plaintiff’s parenting skills and the circumstances of her custody

24 dispute.

ORDER ON PLAINTIFF’S COMPLAINT - 9

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It is possible that a remand for further administrative purposes would serve a

2 useful purpose. Therefore, this matter is reversed and remanded for further administrative
3 proceedings, as opposed to reversed with a direction to award benefits, as requested by
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plaintiff. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir.
2014)(citations omitted)(remand for benefits is not appropriate when further

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administrative proceedings would serve a useful purpose).
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(2)
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Whether or not the ALJ erred in her evaluation of plaintiff’s
credibility.

Plaintiff contends that the ALJ erred by failing to credit fully plaintiff’s allegations
and testimony regarding her limitations and complaints.
The Court already has concluded that the ALJ erred in reviewing the medical
evidence and that this matter should be reversed and remanded for further consideration,

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see supra, section 1. In addition, the evaluation of a claimant’s statements regarding
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limitations relies in part on the assessment of the medical evidence. See 20 C.F.R. §
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404.1529(c); SSR 16-3p, 2016 SSR LEXIS 4. Therefore, plaintiff’s testimony and
statements should be assessed anew following remand of this matter.
However, the Court also notes that the ALJ failed to credit fully plaintiff’s

19 allegations and testimony regarding her episodes of rage, difficulties interacting with
20 others, and inability to tolerate the pressures and expectations of a work environment for
21 40-hours a week on a sustained basis. See AR. 21-22. The ALJ dismissed plaintiff’s
22 statements regarding her limitations reasoning that plaintiff was able to represent herself
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through a custody dispute, care for her child, and act appropriately during counseling

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ORDER ON PLAINTIFF’S COMPLAINT - 10

1 sessions with providers and while residing in transitional housing. Id. For the reasons
2 discussed above regarding plaintiff’s ability to care for her daughter and lack of recorded
3 instances of plaintiff’s rage, these reasons are not sufficiently supported by the record as
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a whole. See supra, section 1.

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The ALJ also failed to credit fully plaintiff’s allegations and testimony on the

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basis of plaintiff’s failure to take psychiatric medications. When a person suffers from a
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mental illness, and the mentally ill person does not have the requisite insight into his or
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her condition to seek or comply with treatment, or does not have the memory and focus
to have the ability to take a medication three times a day, this fact actually can indicate a

11 greater severity of mental incapacity. See Van Nguyen, supra, 100 F.3d at 1465; see also
12 Blankenship, supra, 874 F.2d at 1124. Therefore, plaintiff’s complaints regarding mental
13 health symptoms throughout the record and why she did not comply with her prescribed
14 medication regime should be addressed more fully following remand of the matter.
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(3)

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The Court already has concluded that the ALJ erred in reviewing the medical

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Whether or not the ALJ erred in her evaluation of the lay witness
statement pertaining to plaintiff’s mental impairments.

evidence and plaintiff’s allegations and that this matter should be reversed and remanded

19 for further consideration, see supra, sections 1 and 2. For this reason, the Court concludes
20 that the ALJ should evaluate anew any additional lay evidence, including that provided
21 by lay witness, Franchesca Leal and treating mental health provider, David Burrows,
22 MHP.
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ORDER ON PLAINTIFF’S COMPLAINT - 11

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The Court also notes however that while an ALJ may discredit lay testimony if it

2 conflicts with medical evidence (see Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)),
3 to the extent lay testimony from “other medical” sources is consistent with medical
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evidence, these opinions are important, and should be evaluated on key issues such as
impairment severity and functional effects.” Bruce, supra, 557 F.3d at 1116), adopted by

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Wobbe v. Colvin, 2013 U.S. Dist. LEXIS 110195 at *8 (D. Or. 2013) (unpublished
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opinion). David Burrows, MHP provided mental health counseling to plaintiff from
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December 2011 to April 2014. AR. 694-706, 770-804. To the extent Mr. Burrows’
observations, assessment, and medical source statements are consistent with other

11 pertinent medical evidence (see supra, section 1), the ALJ should consider his opinion
12 following remand of this matter.
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(4)

Whether or not the proper remedy for the errors in the ALJ’s decision
is remand for benefits.

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This issue has already been discussed, see supra, section 1.
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CONCLUSION

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

18 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
19 405(g) to 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.

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Dated this 23rd day of March, 2017.

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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 - 12