Langdon v. Colvin

Filing 20

ORDER Reversing and Remanding Defendant's Decision to Deny Benefits by Judge Theresa L Fricke. (TW)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 RICHELLE C. LANGDON, Case No. 3:16-cv-05871-TLF 7 8 9 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 10 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS Defendants. 11 Richelle C. Langdon has brought this matter for judicial review of the Commissioner’s 12 denial of her applications for disability insurance and supplemental security income (SSI) 13 benefits. The parties have consented to have this matter heard by the undersigned Magistrate 14 Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the 15 reasons set forth below, the Court finds that the Commissioner’s decision to deny benefits should 16 be reversed and remanded for further administrative proceedings. 17 FACTUAL AND PROCEDURAL HISTORY 18 On May 7, 2012, Ms. Langdon filed an application for disability insurance benefits. Dkt. 19 8, Administrative Record (AR) 22. She also filed an application for SSI benefits on July 5, 2012. 20 Id. She alleged in both applications that she became disabled beginning January 6, 2011. Id. Both 21 applications were denied on initial administrative review and on reconsideration. Id. A hearing 22 was held on April 1, 2014, before an administrative law judge (ALJ). Id. Ms. Langdon appeared 23 and testified, as did a vocational expert. AR 44-101. 24 25 ORDER - 1 1 In a written decision on April 20, 2015, the ALJ found that Ms. Langdon could perform 2 her past relevant work and therefore was not disabled. AR 22-36. The Appeals Council denied 3 Ms. Langdon’s request for review on September 7, 2016, making the ALJ’s decision the final 4 decision of the Commissioner, which Ms. Langdon then appealed in a complaint filed with this 5 Court on October 11, 2016. AR 1-4; Dkt. 3; 20 C.F.R. §§ 404.981, 416.1481. 6 7 Ms. Langdon seeks reversal of the ALJ’s decision and remand for further administrative proceedings, arguing the ALJ erred: 8 (1) in determining Ms. Langdon’s severe impairments; 9 (2) in evaluating the medical evidence; 10 (3) in assessing Ms. Langdon’s residual functional capacity (RFC); and 11 (4) in finding Ms. Langdon could perform other jobs existing in significant numbers in the national economy. 12 For the reasons set forth below, the Court agrees that the ALJ erred in evaluating the medical 13 opinion evidence regarding Ms. Langdon’s mental health, and consequently in assessing Ms. 14 Langdon’s RFC and finding that she could perform other jobs in the national economy. The 15 Court therefore reverses the decision to deny benefits and remands for further administrative 16 proceedings. 17 DISCUSSION 18 The Commissioner employs a five-step “sequential evaluation process” to determine 19 whether a claimant is disabled. 20 C.F.R. § 416.920. If the ALJ finds the claimant disabled or not 20 disabled at any particular step, the ALJ makes the disability determination at that step and the 21 sequential evaluation process ends. See id. At issue here is the ALJ’s determination at step two 22 that certain conditions are not severe impairments, his weighing of different pieces of medical 23 24 25 ORDER - 2 1 evidence, and his resulting assessment of Ms. Langford’s RFC and conclusion that she could 2 perform jobs in the national economy. 3 This Court affirms an ALJ’s determination that a claimant is not disabled if the ALJ 4 applied “proper legal standards” in weighing the evidence and making the determination and if 5 “substantial evidence in the record as a whole supports” that determination. Hoffman v. Heckler, 6 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence is “‘such relevant evidence as a 7 reasonable mind might accept as adequate to support a conclusion.’” Trevizo v. Berryhill, No. 8 15-16277, —— F.3d ——, 2017 WL 2925434, at *7 (9th Cir. July 10, 2017) (quoting 9 Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires 10 “‘more than a mere scintilla,’” though “‘less than a preponderance’” of the evidence. Id. (quoting 11 Desrosiers, 846 F.2d at 576). 12 This Court will thus uphold the ALJ’s findings if “inferences reasonably drawn from the 13 record” support them. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 14 2004). If more than one rational interpretation can be drawn from the evidence, then this Court 15 must uphold the ALJ’s interpretation. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 16 I. The ALJ’s Step Two Determination 17 At step two of the evaluation process, the ALJ must determine if an impairment is 18 “severe.” 20 C.F.R. § 416.920. An impairment is “not severe” if it does not “significantly limit” 19 a claimant’s mental or physical abilities to do basic work activities. 20 C.F.R. § 20 416.920(a)(4)(iii); Social Security Ruling (SSR) 96-3p, 1996 WL 374181, at *1. Basic work 21 activities are those “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b); 22 SSR 85- 28, 1985 WL 56856, at *3. 23 24 An impairment is not severe if the evidence establishes only a slight abnormality that has “no more than a minimal effect on an individual[’]s ability to work.” SSR 85-28, 1985 WL 25 ORDER - 3 1 56856, at *3; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen, 841 F.2d 2 303, 306 (9th Cir. 1988). A claimant must prove that her “impairments or their symptoms affect 3 her ability to perform basic work activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th 4 Cir. 2001); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). The step two inquiry, however, is 5 a de minimis screening device used to dispose of groundless claims. Smolen, 80 F.3d at 1290. 6 Ms. Langford asserts that the ALJ failed to properly evaluate the evidence that four types 7 of condition—chronic abdominal pain, organic brain syndrome, personality disorders, and 8 learning disabilities—are severe impairments. The Court disagrees. 9 First, Ms. Langdon presents no evidence that she suffered from personality and learning 10 disorders other than the list of medically determinable impairments noted by the state agency 11 reviewing psychologist, Dr. Cynthia Collingwood. AR 219. The only opinion evidence regarding 12 Ms. Langdon’s mental health that Dr. Collingwood reviewed was Dr. David Dixon’s. AR 212- 13 17. Dr. Collingwood wrote “personality & learning d/o” in her summary of Dr. Dixon’s findings. 14 AR 218. But Dr. Dixon wrote “none” in the space for “Personality and Learning Disorders” in 15 his evaluation. AR 834. Dr. Collingwood did not elaborate on her note. Thus, the Commissioner 16 is correct that Dr. Collingwood’s listed diagnoses of personality and learning disorders appears 17 to be a transcription error. Dkt. 16, p. 2. In any case, the ALJ was not obligated to find that every 18 diagnosis on that list was a severe impairment at step two. See Morgan v. Comm’r of the Soc. 19 Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (ALJ evaluates inconsistencies in evidence in 20 first instance). Ms. Langdon had the burden of showing she suffered from personality and 21 learning disorders that impacted her ability to work, and the ALJ did not err in determining that 22 she failed to do so. See Edlund, 253 F.3d at 1159-60. 23 24 25 ORDER - 4 1 Second, Ms. Langdon presents no evidence that she suffered from organic brain 2 syndrome, either. As with personality and learning disorders, Ms. Langdon appears to base this 3 contention solely on the list of diagnoses in Dr. Collingwood’s review. Again, Dr. Dixon’s 4 opinions were the only ones Dr. Collingwood consulted. See AR 212-17. Dr. Dixon did not 5 diagnose a condition called “organic brain syndrome.” He did, however, diagnose “Cognitive 6 Disorder, Not Otherwise Specified,” citing listing 294.9 in the DSM-IV. AR 834. Dr. 7 Collingwood noted that condition in summarizing Dr. Dixon’s conclusions. See AR 218. But in 8 listing diagnoses, Dr. Collingwood instead wrote “Organic Brain Syndrome,” citing listing 2940 9 in the DSM-IV. The ALJ found “Cognitive Disorder, Not Otherwise Specified” to be a severe 10 impairment, but not “Organic Brain Syndrome.” AR 25, 27. Thus, if the two terms describe the 11 same impairment, then any error was harmless because the ALJ found cognitive disorder NOS to 12 be severe and considered its effects at a later stage. See Lewis v. Astrue, 498 F.3d 909, 910-11 13 (9th Cir. 2007) (holding that failure to list impairment as severe at step two may be harmless 14 where ALJ considered associated limitations at step four). And although Ms. Langdon asserts 15 that the two conditions are different, she provides no evidence for that proposition other than a 16 citation to an internet dictionary. Dkt. 19, pp. 1-2 & n.1. Nor does she introduce any evidence 17 from an examining or treating physician that she suffers from organic brain syndrome. In either 18 case, then, the ALJ did not err in omitting organic brain syndrome at step two. 19 Finally, any error the ALJ committed in omitting chronic pain as a severe impairment 20 was also harmless. The ALJ thoroughly discussed Ms. Langdon’s history of abdominal pain and 21 physicians’ attempts to determine its cause. AR 25-26. He noted that the physician who treated 22 Ms. Langdon for abdominal pain in July 2013 diagnosed alcoholic pancreatitis. AR 26; see AR 23 933-34. The ALJ also noted Ms. Langdon’s history of back pain, which a radiologist attributed to 24 25 ORDER - 5 1 degenerative disc disease. AR 26, 819; see AR 690-91, 739-40. The ALJ found both pancreatitis 2 and degenerative disc disease of the lumbar spine to be severe impairments. AR 25-26. 3 Although the Commissioner contends that the ALJ could not err in omitting chronic pain 4 syndrome at step two because pain is a symptom and not an impairment, this Court has 5 previously recognized that a diagnosis of chronic pain syndrome can constitute a medically 6 determinable impairment. See Myers v. Colvin, 954 F. Supp. 2d 1163, 1172 (W.D. Wash. 2013). 7 Ms. Langdon’s medical record includes notes of chronic abdominal pain diagnoses. See AR 218. 8 Nonetheless, the ALJ found the only diagnosed causes of Ms. Langdon’s pain to be severe at 9 step two and addressed their impacts at steps four and five. See Lewis, 498 F.3d at 910-11. 10 Therefore, any error in failing to include chronic pain as a severe impairment was 11 “‘inconsequential to the ultimate nondisability determination’ in this particular case, and 12 therefore, harmless.” Myers, 954 F. Supp. 2d at 1173 (quoting Molina v. Astrue, 674 F.3d 1104, 13 1115 (9th Cir. 2012)). 1 14 Ms. Langdon also asserts that the ALJ failed to follow the “psychiatric review technique” 15 that Social Security Administration (SSA) regulations require. Dkt. 12, pp. 13-14; see 20 C.F.R. 16 § 404.1520a. In particular, Ms. Langdon contends that the ALJ failed to incorporate written 17 findings and conclusions applying the technique to her alleged personality disorders and 18 substance addiction disorders (listings 12.08 and 12.09). See 20 C.F.R. § 404.1520a(e)(4); AR 19 25-26. Ms. Langdon contends that because Dr. Collingwood listed both types of disorder, the 20 regulations required the ALJ to apply the technique to those disorders and document that 21 application. See AR 219. 22 1 23 24 Although Ms. Langdon’s reply brief appears to challenge the ALJ’s discounting of her credibility, she did not raise such a challenge in her opening brief, so the Court declines to consider it. Dkt. 19, p.12; see Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n. 8 (9th Cir. 2009) (“[A]rguments not raised by a party in an opening brief are waived.”). 25 ORDER - 6 1 Ms. Langdon’s argument with respect to personality disorders fails here for the same 2 reason it does above: Ms. Langdon did not present evidence that she actually suffered from that 3 impairment other than Dr. Collingwood’s inclusion of it on a list. As noted above, Dr. Dixon 4 found that Ms. Langdon had no personality disorders. AR 834. Similarly, with respect to substance addiction disorders, Dr. Collingwood’s list is again 5 6 the only evidence Ms. Langdon points to that would indicate she has such a disorder. This 7 distinguishes Ms. Langdon’s case from one in which a claimant presented a “colorable claim” of 8 a particular impairment. See Dkt. 12, p. 14; Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 9 2000) (“‘Since the record contained evidence of a mental impairment that allegedly prevented 10 claimant from working, the Secretary was required to follow the procedure for evaluating the 11 potential mental impairment set forth in his regulations and to document the procedure 12 accordingly.’” [quoting Hill v. Sullivan, 924 F.2d 972, 975 (10th Cir. 1991)]). 13 II. The ALJ’s Evaluation of the Medical Opinion Evidence 14 The ALJ is responsible for determining credibility and resolving ambiguities and 15 conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where 16 the evidence is inconclusive, “‘questions of credibility and resolution of conflicts are functions 17 solely of the [ALJ]’” and this Court will uphold those conclusions. Sample v. Schweiker, 694 18 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 858 n. 7 (9th Cir. 19 1971)); Morgan, 169 F.3d at 601. As part of this discretion, the ALJ determines whether 20 inconsistencies in the evidence “are material (or are in fact inconsistencies at all) and whether 21 certain factors are relevant” in deciding how to weigh medical opinions. Morgan, 169 F.3d at 22 603. 23 24 The ALJ must support his or her findings with “specific, cogent reasons.” Reddick, 157 F.3d at 725. To do so, the ALJ sets out “a detailed and thorough summary of the facts and 25 ORDER - 7 1 conflicting clinical evidence,” interprets that evidence, and makes findings. Id. The ALJ does not 2 need to discuss all the evidence the parties present but must explain the rejection of “significant 3 probative evidence.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 4 1984) (citation omitted). The ALJ may draw inferences “logically flowing from the evidence.” 5 Sample, 694 F.2d at 642. And the Court itself may draw “specific and legitimate inferences from 6 the ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 7 In general, the ALJ gives more weight to a treating physician’s opinion than to the 8 opinions of physicians who do not treat the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th 9 Cir. 1996). Nonetheless, an ALJ need not accept a treating physician’s opinion that “is brief, 10 conclusory, and inadequately supported by clinical findings” or “by the record as a whole.” 11 Batson, 359 F.3d at 1195; see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); 12 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 13 To reject the uncontradicted opinion of either a treating or examining physician, an ALJ 14 must provide “clear and convincing” reasons. Trevizo, 2017 WL 2925434, at *7. When other 15 evidence contradicts the treating or examining physician’s opinion, the ALJ must still provide 16 “specific and legitimate reasons,” supported by substantial evidence, to reject that opinion. Id. 17 An ALJ should weigh the physician’s opinion according to factors such as the nature, extent, and 18 length of the physician-patient working relationship, the frequency of examinations, whether the 19 physician’s opinion is supported by and consistent with the record, and the specialization of the 20 physician. Id.; see 20 C.F.R. § 404.1527(c)(2)-(6). Finally, a non-examining physician’s opinion 21 may constitute substantial evidence for an ALJ’s findings if that opinion “is consistent with other 22 independent evidence in the record.” Tonapetyan, 242 F.3d at 1149. 23 24 25 ORDER - 8 1 2 A. Examining Physician: Dr. Gaffield In a March 2013 evaluation, Dr. Gary Gaffield noted that Ms. Langdon appeared anxious 3 and had difficulty sitting. AR 823. He noted mild right-sided weakness and mild left-side 4 hemiparesis (weakness) in her extremities, a positive Romberg test (indicating poor balance), 5 limited range of motion in her cervical spine, and a resting tremor. AR 824. He observed that 6 because of her balance problem, Ms. Langdon had trouble removing her footwear, could not hop, 7 bend, or squat, could not walk on her heels, and struggled to walk in tandem. Id. And he 8 observed that she was unable to lie prone due to abdominal pain. Id. Dr. Gaffield found that Ms. 9 Langdon had limited range of motion in her cervical spine. Id. 10 Dr. Gaffield diagnosed Ms. Langdon with seizure disorder, left-sided weakness, and 11 impaired balance post cerebral aneurysm, and with low back pain and “abdominal pain with a 12 history of cholecystitis.” AR 825. He concluded that Ms. Langdon could stand or walk for 6 13 hours of an 8-hour workday (with adequate breaks); had no limitations in sitting; could lift 20 14 pounds occasionally and 10 frequently; and could perform frequent manipulative activities. He 15 further opined that she was limited to occasional postural activities and that, because of her 16 balance and left-side weakness, she needed to avoid heights, unprotected surfaces, heavy 17 equipment, steep ladders, multiple inclined planes or flights of stairs, and major obstacles in her 18 path. AR 826. 19 The ALJ gave Dr. Gaffield’s opinions “significant weight.” AR 33. He noted that Dr. 20 Gaffield examined Ms. Langdon and that his opinions were “consistent with exam findings.” Id. 21 Noting Dr. Gaffield’s finding that Ms. Langdon had issues with her balance, however, the ALJ 22 found that “the record does not indicate chronic problems with balance,” that “[p]hysical exams 23 show [Ms. Langdon] is ambulatory with a normal gait and no use of an assistive device,” and 24 that “[o]bjective images are mild or within normal limits.” Id. 25 ORDER - 9 1 Ms. Langdon does not challenge Dr. Gaffield’s specific bases for those opinions but 2 implies that because Dr. Gaffield “was provided no treatment records” whereas Dr. Sui Twe had 3 treated Ms. Langdon for sixteen years when Dr. Twe offered her opinions, the ALJ should have 4 accorded greater weight to Dr. Twe’s opinions. The ALJ did not err in evaluating Dr. Gaffield’s opinions. Dr. Gaffield reviewed a 5 6 number of hospital records from the previous year, including a hepatobiliary iminodiacetic acid 7 (HIDA) scan, a computerized tomography (CT) scan of the pelvis, an abdominal ultrasound, a 8 hospital discharge summary, and an emergency room visit for cervical pain. AR 821. Although 9 Ms. Langdon contends that Dr. Gaffield reviewed an incomplete record, she does not specify 10 what records Dr. Gaffield was missing or why they may have changed his opinions. Dkt. 12, pp. 11 7-8. Moreover, despite expressing skepticism toward Dr. Gaffield’s findings on Ms. Langdon’s 12 balance, the ALJ included limitations in the RFC to account for poor balance. See AR 28 13 (limiting Ms. Langdon to occasionally climbing ramps and stairs, balancing, stooping, kneeling, 14 crouching, and crawling, and to never climbing ladders, ropes, or scaffolds). 15 B. 16 Treating Physician: Dr. Twe Dr. Twe began treating Ms. Langdon in 1997. AR 893. She observed in a March 2013 17 questionnaire that Ms. Langdon suffered from chronic abdominal, pelvic, and lower back pain, 18 and that she had a weak grasp. AR 894, 896. Dr. Twe opined that Ms. Langdon’s impairments 19 limit her to three hours sitting and four hours standing and walking in an eight-hour day; that she 20 could not sit continuously and would need to get up and move around every 15 minutes for 20 21 minutes at a time. Dr. Twe would limit Ms. Langdon to lifting five pounds frequently, ten 22 pounds occasionally, and never more, and to similar weights carrying. AR 896. Dr. Twe assessed 23 a marked limitation in Ms. Langdon’s ability to perform fine and gross manipulations with her 24 left hand. AR 897. Dr. Twe further assessed Ms. Langdon as moderately limited in the right hand 25 ORDER - 10 1 and markedly limited in the left hand in grasping, turning, and twisting objects. AR 895-96. Dr. 2 Twe opined that Ms. Langdon’s symptoms would worsen in a competitive work environment. 3 AR 897. She also opined that Ms. Langdon’s neck condition would prevent her from keeping it 4 in a constant position, like looking at a computer screen or down at a desk. Id. Dr. Twe opined 5 that Ms. Langdon could not do full time work because her pain, fatigue, or other symptoms 6 would constantly interfere with her attention and concentration, and that she would need many 7 unscheduled rest breaks and would miss “about 20 days/month” of work. AR 898-99. Dr. Twe 8 wrote a one-page letter reiterating these opinions in February 2014. AR 959. 9 The ALJ found that Dr. Twe’s opinions were inconsistent with the record. AR 33-34. He 10 noted that Dr. Twe “provide[d] no objective basis for [her] opinion;” that “[o]bjective images 11 typically indicate only mild or normal findings;” and that the record contained no support for Dr. 12 Twe’s opinion that Ms. Langdon would miss 20 days of work per month. AR 33. The ALJ also 13 noted that “Dr. Twe makes no mention of the claimant’s prescription abuse and alcohol use, 14 which undercuts the reliability of [her] opinion.” AR 34. 15 The ALJ’s finding that Dr. Twe provided no objective basis for her opinions was a 16 specific and legitimate to reject those opinions. See Molina, 674 F.3d at 1111. The record 17 supports that finding. Dr. Twe initially offered her opinion either in a check-box format or in 18 brief, conclusory answers to questions on a form. AR 894-99. (The letter Dr. Twe wrote repeated 19 the conclusions from the check-off form nearly verbatim. AR 959.) An “ALJ may ‘permissibly 20 reject[ ] . . . check-off reports that [do] not contain any explanation of the bases of their 21 conclusions.’” Molina, 674 F.3d at 1111 (quoting Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 22 1996)). Moreover, Dr. Gaffield’s opinion, offered around the same time, reached markedly 23 different conclusions and, as discussed above, did have support from objective findings. See AR 24 25 ORDER - 11 1 821. The ALJ thus gave specific, legitimate, and supported reasons to reject Dr. Twe’s 2 contradicted opinion. 3 C. 4 Examining Physician: Dr. Dixon Dr. Dixon examined Ms. Langdon on April 6, 2013. The record contains the results of the 5 psychological evaluation Dr. Dixon performed. AR 827-35. He observed based on Ms. 6 Langdon’s performance on the Trail-Making Test parts A and B 2 that she “demonstrated 7 moderate to severe cerebral dysfunction, as well as impaired planning and cognitive 8 inflexibility.” AR 832. He also opined that, among other limitations, Ms. Langdon had a poor to 9 fair ability to sustain concentration. AR 834. The ALJ singled out this conclusion as inconsistent 10 with the record. AR 34. Ms. Langdon contends that the ALJ erred in discounting Dr. Dixon’s 11 opinion. Dkt. 12, p. 16; see AR 34. The Court agrees. 12 Neither of the reasons the ALJ offered for rejecting Dr. Dixon’s opinion that Ms. 13 Langdon had poor to fair ability to sustain concentration were “specific and legitimate,” nor are 14 they supported by the record. First, the ALJ stated that “[m]ental status exams throughout the 15 period at issue show no significant cognitive deficits.” AR 34. While no “mental status exams” 16 are apparent in the record, and the ALJ cited none, the ALJ may have been referencing notes 17 from office visits in September, October, November, and December 2011 and May 2012. See AR 18 32. Ms. Langdon made those visits to follow up on her pain medication. AR 713, 717, 721, 725. 19 Dr. Kyong Ho Kim wrote at the first four visits that cognitive assessments were “unremarkable” 20 or “within normal limits,” or that “[n]o abnormalities were detected.” AR 714, 718, 722, 726. 21 Stasia Turner, ARNP made a similar note at the fifth visit. AR 691. But these providers gave no 22 23 24 2 “The comprehensive Trail-Making Test is a standardized set of visual search and sequencing tasks that measure attention and concentration, resistance to distraction and cognitive flexibility.” AR 832. 25 ORDER - 12 1 indication what exams, if any, they performed on Ms. Langdon, and the cognitive assessment 2 was evidently not a focus of any of the visits. It is unclear whether those assessments were 3 equivalent to “mental status exams,” as the only record of them consists of brief, conclusory 4 single sentences without explanation or observations. In contrast, Dr. Dixon supported his 5 opinion with several pages recounting the results of psychological tests. AR 827-35. To rely on 6 asserted inconsistencies with other items in the medical record, the ALJ needed to “consider 7 factors such as the length of the treating relationship, the frequency of examination, the nature 8 and extent of the treatment relationship, or the supportability of the opinion.” Trevizo, 2017 WL 9 2925434, at *7 (citing 20 C.F.R. § 404.1527(c)(2)–(6)). The ALJ failed to do so in rejecting Dr. 10 11 Dixon’s opinion. Second, the ALJ stated that at Ms. Langdon’s October 2010 hearing she testified to 12 “building birdhouses for a couple of hour[s] at a time, working in her garden, playing memory 13 games on the computer and using Facebook.” The ALJ reasoned that this testimony 14 “demonstrates the ability to sustain concentration.” AR 34. He likewise reasoned that Ms. 15 Langdon’s testimony about her activities of daily life at the current hearing—cooking, cleaning, 16 and housework, “also indicates the ability to sustain concentration.” Id. 17 An ALJ may reject a medical opinion regarding a claimant’s mental health because the 18 claimant’s activities of daily life contradict it, but only if substantial evidence supports that 19 conclusion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (finding that 20 inconsistency between doctor's opinion and claimant’s “maintaining a household and raising two 21 young children, with no significant assistance from her ex husband” supported discounting the 22 doctor’s opinion). The record must provide details about the nature, extent, and frequency of the 23 24 25 ORDER - 13 1 activities for them to “constitute ‘substantial evidence’ inconsistent with [an examining 2 physician’s] informed opinion.” Trevizo, 2017 WL 2925434, at *8. 3 The record does not support the ALJ’s conclusion that Ms. Langdon’s activities 4 contradict Dr. Dixon’s opinion about her ability to concentrate. The record contains no 5 information as to whether Ms. Langdon’s gardening, cooking, or housework occurred frequently, 6 how vigorous these activities were, or how long Ms. Langdon maintained any given activity. See 7 Trevizo, 2017 WL 2925434, at *8. And although the ALJ noted that Ms. Langdon “reported 8 building birdhouses for a couple of hour[s] at a time,” this mischaracterizes Ms. Langdon’s 9 testimony at the prior hearing. AR 34; see AR 134 (prior ALJ findings): Ms. Langdon did not 10 testify to “building birdhouses,” but rather to decorating pre-built birdhouses by plastering them 11 and gluing on pieces of tumbled glass. AR 34, 240-42. And she did not testify to doing so for 12 two hours at a time, but rather “a couple of days a week.” AR 241. She did not testify that she 13 performed for sustained periods this or any of the other activities the ALJ listed, and in fact 14 indicated that she struggled with Facebook. AR 240 (“I just did Facebook because I didn’t quite 15 understand it.”). It is unclear, in any case, how Facebook or computer games would relate to any 16 paid work activity, other than involving computers. These instead appear to be nothing more than 17 leisurely pastimes. See id. Because the reasons the ALJ offered to reject Dr. Dixon’s opinion 18 were neither legitimate nor supported, the ALJ erred in evaluating that opinion. See Trevizo, 19 2017 WL 2925434, at *8; Delaplain v. Comm'r of Soc. Sec. Admin., No. 2:15-CV-02439-HZ, 20 2017 WL 1234133, at *5 (D.Or. Mar. 17, 2017) (finding that activities ALJ cited did not 21 contradict doctor’s opinion regarding limitations). 22 That error was not harmless, because it was not “‘inconsequential to the ultimate 23 nondisability determination.’” Molina, 674 F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162). 24 25 ORDER - 14 1 The ALJ’s RFC stated that Ms. Langdon “has average ability to perform sustained work 2 activities (i.e., maintain attention, concentration, persistence, and pace) in an ordinary work 3 setting for 8 hours, 5 days a week or an equivalent work schedule.” AR 28 (emphasis added). 4 Using the RFC, the vocational expert testified that Ms. Langdon could perform as a housekeeper, 5 cashier, or electronics worker/assembler. AR 36, 93. A reasonable ALJ fully crediting Dr. 6 Dixon’s opinion could have concluded that Ms. Langdon could not perform any of these 7 occupations. See Stout, 454 F.3d at 1056 (holding that ALJ’s error in failing to consider lay 8 testimony about limitations was not harmless where reasonable ALJ could conclude those 9 limitations precluded employment). This error thus requires reversal for the ALJ to properly 10 consider the medical evidence regarding Ms. Langdon’s mental health impairments and their 11 limitations on her ability to work. 12 III. The ALJ’s RFC Assessment 13 The ALJ uses a claimant’s residual functional capacity (RFC) assessment at step four of 14 the sequential evaluation process to determine whether the claimant can do his or her past 15 relevant work, and at step five to determine whether he or she can do other work. Social Security 16 Ruling (SSR) 96-8p, 1996 WL 374184 *2. The RFC is what the claimant “can still do despite his 17 or her limitations.” Id. 18 A claimant’s RFC is the maximum amount of work the claimant is able to perform based 19 on all of the relevant evidence in the record. Id. However, an inability to work must result from 20 the claimant’s “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those 21 limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing 22 a claimant’s RFC, the ALJ must also discuss why the claimant’s “symptom-related functional 23 limitations and restrictions can or cannot reasonably be accepted as consistent with the medical 24 or other evidence.” Id. at *7. 25 ORDER - 15 1 The ALJ found Ms. Langdon had the RFC: 2 To perform light work as defined in 20 CRF 404.1567(b) and 416.967(b) except she can occasionally climb ramps and stairs, balance, stoop, kneel, crouch; and crawl; she can never climb ladders, ropes, or scaffolds; she is limited to frequent left handling; she must avoid moderate exposure to hazards (dangerous machinery, unprotected heights, etc.); she is capable of completing simple routine tasks and established goals; she has average ability to perform sustained work activities (i.e., maintain attention, concentration, persistence, and pace) in an ordinary work setting for 8 hours, 5 days a week or an equivalent work schedule within customary tolerances regarding employers rules for sick leave and absences. 3 4 5 6 7 AR 28 (emphasis in the original). 8 Because, as discussed above, the ALJ erred in rejecting Dr. Dixon’s opinion that Ms. 9 Langdon had a poor-to-fair ability to concentrate, the ALJ's RFC assessment does not completely 10 and accurately describe all of Ms. Langdon’s cognitive functional capabilities. Accordingly, on 11 remand the ALJ should reevaluate the medical evidence regarding Ms. Langdon’s mental health 12 impairments. The ALJ should then reassess Ms. Lamont’s RFC and her ability to perform other 13 work. 14 CONCLUSION 15 Based on the foregoing discussion, the Court finds the ALJ erred in determining Ms. 16 Langdon to be not disabled. The Commissioner’s decision to deny benefits therefore is 17 REVERSED and this matter remanded for further administrative proceedings. 18 Dated this 26th day of July, 2017. 19 20 A 21 Theresa L. Fricke United States Magistrate Judge 22 23 24 25 ORDER - 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORDER - 17

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