Warren v. Berryhill

Filing 12

ORDER re 3 Complaint, REVERSING and REMANDING this matter for further administrative proceedings; signed by Judge Ronald B. Leighton. (DN)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 TAMMY WARREN, Case No. 3:17-cv-05035-RBL 7 8 9 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 10 Defendant. 11 12 Dkt. #3 THIS MATTER is before the Court on Plaintiff Warren’s Complaint [Dkt. 3] for review 13 of the Social Security Commissioner’s denial of her applications for disability insurance and 14 15 16 supplemental security income benefits. Warren suffers from chronic obstructive pulmonary disease, anxiety, affective disorder, 17 and substance addiction. See Dkt. 7, Administrative Record 15. She applied for disability 18 insurance and SSI benefits in November 2013, alleging she became disabled in June 2010. See 19 20 AR 13. Those applications were denied upon initial administrative review and on reconsideration. See id. A hearing was held before Administrative Law Judge Kelly Wilson in 21 22 23 24 25 June 2015. See id. Warren, represented by a non-attorney representative, appeared and testified, as did a vocational expert. See AR 39-87. The ALJ determined Warren not to be disabled. See AR 10-38. The Appeals Council denied Warren’s request for review, making the ALJ’s decision the final decision of the 26 ORDER - 1 1 Commissioner of Social Security. See AR 1-7; 20 C.F.R. §§ 404.981, 416.1481. In January 2017, 2 Warren filed a complaint seeking judicial review of the Commissioner’s decision. See Dkt. 3. 3 4 Warren argues the Commissioner’s decision to deny benefits should be reversed and remanded for an immediate award of benefits or for further administrative proceedings because 5 the ALJ erred in evaluating the medical evidence in the record, Warren’s testimony, and the lay 6 7 8 9 witness testimony, and therefore in finding at step five of the sequential evaluation process that Warren could perform work available in the national economy. The Commissioner argues the ALJ did not err in evaluating the medical evidence, 10 Warren’s testimony, or the lay witness testimony, so the ALJ’s finding that Warren was not 11 disabled was supported by substantial evidence and should be affirmed. 12 I. DISCUSSION 13 The Commissioner’s determination that a claimant is not disabled must be upheld by the 14 15 Court if the Commissioner applied the “proper legal standards” and if “substantial evidence in 16 the record as a whole supports” that determination. See Hoffman v. Heckler, 785 F.2d 1423, 1425 17 (9th Cir. 1986); see also Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 18 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991) (“A decision supported by 19 20 substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.”) (citing Brawner v. Sec’y of Health and 21 22 23 Human Services, 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as 24 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation 25 omitted); see also Batson, 359 F.3d at 1193 (“[T]he Commissioner’s findings are upheld if 26 supported by inferences reasonably drawn from the record.”). “The substantial evidence test ORDER - 2 1 requires that the reviewing court determine” whether the Commissioner’s decision is “supported 2 by more than a scintilla of evidence, although less than a preponderance of the evidence is 3 required.” Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence 4 admits of more than one rational interpretation,” the Commissioner’s decision must be upheld. 5 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (“Where there is conflicting evidence 6 7 sufficient to support either outcome, we must affirm the decision actually made.”) (quoting 8 Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).1 9 A. 10 11 12 The Medical Evidence in the Record. The ALJ determines credibility and resolves ambiguities and conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence in the record is not conclusive, “questions of credibility and resolution of conflicts” are solely the 13 functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, “the 14 15 ALJ’s conclusion must be upheld.” Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601 (9th 16 Cir. 1999). Determining whether inconsistencies in the medical evidence “are material (or are in 17 fact inconsistencies at all) and whether certain factors are relevant to discount” the opinions of 18 medical experts “falls within this responsibility.” Id. at 603. 19 20 In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this 21 22 1 23 24 25 26 As the Ninth Circuit has further explained: . . . It is immaterial that the evidence in a case would permit a different conclusion than that which the [Commissioner] reached. If the [Commissioner]’s findings are supported by substantial evidence, the courts are required to accept them. It is the function of the [Commissioner], and not the courts to resolve conflicts in the evidence. While the court may not try the case de novo, neither may it abdicate its traditional function of review. It must scrutinize the record as a whole to determine whether the [Commissioner]’s conclusions are rational. If they are . . . they must be upheld. Sorenson, 514 F.2d at 1119 n.10. ORDER - 3 1 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 2 stating his interpretation thereof, and making findings.” Id. The ALJ also may draw inferences 3 “logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the Court may draw 4 “specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 5 747, 755 (9th Cir. 1989). 6 7 The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 8 opinion of a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). 9 Even when a treating or examining physician’s opinion is contradicted, that opinion “can only be 10 rejected for specific and legitimate reasons that are supported by substantial evidence in the 11 record.” Id. at 830-31. In general, more weight is given to a treating or examining physician’s 12 opinion than to the opinions of those who do not examine the claimant. See id. at 830. 13 Warren argues the ALJ erred by failing to give a specific and legitimate reason supported 14 15 16 17 18 19 20 by substantial evidence to discount the opinion of evaluating psychologist Terilee Wingate, Ph.D. See Dkt. 9 at 2-7. The Court agrees. Wingate examined Warren in October 2013 and opined that, because of Warren’s mental impairments, she would be markedly limited in her ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances without special supervision, communicate and perform effectively, maintain appropriate behavior, and complete 21 22 23 24 a normal workday without interruptions from psychologically-based symptoms. See AR 343-44. Wingate also concluded Warren would be moderately limited in her ability to perform several other basic work functions. See id. 25 The ALJ gave Wingate’s opinion little weight because it was “not consistent with the 26 longitudinal treatment record” and because mental status examinations throughout the record ORDER - 4 1 demonstrated greater ability. See AR 29-30. First, insofar as the ALJ was attempting to provide 2 two separate reasons for discounting Wingate’s opinion, the ALJ’s statement that the opinion 3 contradicted the longitudinal treatment record cannot stand alone as a sufficient reason because it 4 is not specific. See Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (finding that an 5 ALJ errs by assigning a medical opinion little weight while doing nothing more than “criticizing 6 7 it with boilerplate language that fails to offer a substantive basis” for that conclusion). 8 Still, as the ALJ also claimed here, a physician’s opinion may be discounted if that 9 opinion contradicts clinical findings in the record. See Batson, 359 F.3d at 1195; see also AR 29- 10 30. However, the MSEs cited by the ALJ are not directly inconsistent with Wingate’s opinion 11 regarding Warren’s limitations in social functioning. See AR 29-30.2 The MSEs contained 12 largely normal, mild, or moderate findings regarding Warren’s limitations in cognitive 13 functioning, rather than social functioning. See AR 344-45, 354, 357, 419, 422, 431-32, 439-40. 14 15 These MSEs also included social findings of dysphoric mood, blunted affect, or depressed and 16 anxious presentation. See AR 344-45, 357, 422, 431. Another note cited by the ALJ as 17 inconsistent with Wingate’s opinion, though not containing a full MSE, contained clinical 18 findings of depressed behavior, constricted affect, and monotonous speech. See AR 497. 19 20 Therefore, substantial evidence does not support the ALJ’s finding that Wingate’s opinion that Warren would have several social limitations in a full-time workplace contradicted the clinical 21 22 findings in the record. The Commissioner argues the ALJ reasonably gave little weight to Wingate’s opinion 23 24 because the opinion was improperly reliant on Warren’s self-reports. See Dkt. 10 at 13-14. 25 26 2 The Court notes that some of the pages cited by the ALJ as MSE results contained only basic neuropsychiatric findings recorded by nurses and general practitioners as part of physical examinations. See AR 395, 402-03. ORDER - 5 1 However, the ALJ only used this reasoning in discounting Wingate’s February 2010 opinion. See 2 AR 28-29. Accordingly, the ALJ only cited examples of Wingate’s alleged reliance on self- 3 reports from that 2010 evaluation, from which Wingate formed a different opinion about 4 Warren’s abilities than she formed in later evaluations. See id. The ALJ did not use this 5 reasoning while discussing Wingate’s 2013 opinion. See AR 29-30; see also Pinto v. Massanari, 6 7 249 F.3d 840, 847 (9th Cir. 2001) (Court “cannot affirm the decision of an agency on a ground 8 that the agency did not invoke in making its decision”); Connett v. Barnhart, 340 F.3d 871, 874 9 (9th Cir. 2003) (error to affirm ALJ’s decision based on evidence ALJ did not discuss). 10 Regardless, substantial evidence would not support this reasoning, as Wingate made clinical 11 observations, reviewed Warren’s medical history, and performed objective testing in addition to 12 gathering Warren’s self-reports in the 2013 evaluation. See AR 341-49. 13 The Commissioner also argues Wingate assessed Warren with limitations that would only 14 15 last nine months, not meeting the one-year duration requirement. See Dkt. 10 at 14. Again, this 16 argument only applies to Wingate’s 2010 evaluation. See AR 355. In 2013, Wingate assessed 17 Warren with more severe limitations and opined that they would last more than 12 months. See 18 AR 344. Therefore, the ALJ erred by failing to provide a specific and legitimate reason 19 20 supported by substantial evidence to discount Wingate’s 2013 opinion. “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 21 22 23 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 24 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. 25 The determination on whether an error is harmless requires a “case-specific application of 26 judgment” by the reviewing court, based on an examination of the record made “‘without regard ORDER - 6 1 to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-19 2 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). Had the ALJ fully credited Wingate’s 3 opinion, the RFC would have included additional limitations, as would the hypothetical 4 questions posed to the vocational expert. For example, Wingate stated Warren was markedly 5 limited in her ability to maintain regular attendance, but the vocational expert testified employers 6 7 would only tolerate one day of absenteeism a month. See AR 85-86, 343-44. Therefore, the 8 ALJ’s error affected the ultimate disability determination and is not harmless. 9 B. Scope of Remand. 10 The Court may remand a case “either for additional evidence and findings or to award 11 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). When the Court reverses an 12 ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for 13 additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 14 15 (citations omitted). It is “the unusual case in which it is clear from the record that the claimant is 16 unable to perform gainful employment in the national economy,” that “remand for an immediate 17 award of benefits is appropriate.” Id. 18 19 20 Benefits may be awarded where “the record has been fully developed” and “further administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where: 21 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 22 23 24 25 26 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). Here, while the ALJ erred in evaluating Wingate’s opinion, issues remain regarding conflicts in ORDER - 7 1 the medical opinions over Warren’s functional capabilities. Remand for further consideration is 2 warranted. 3 4 CONCLUSION The Court concludes the ALJ improperly decided Warren was not disabled. The 5 Commissioner’s decision to deny benefits is REVERSED, and this matter is REMANDED for 6 7 8 further administrative proceedings as detailed in this order. DATED this 8th day of August, 2017. 9 10 11 A 12 Ronald B. Leighton United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 8

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