Contreras-Mendez v. Berryhill

Filing 20

ORDER re 3 Complaint filed by Cecilia Contreras-Mendez -- 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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CECILIA CONTRERAS-MENDEZ,
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Plaintiff,
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CASE NO. 3:17-CV-05666-JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for
Operations,
Defendant.

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

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Local Magistrate Judge Rule MJR 13 (see also Consent to Proceed Before a United

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States Magistrate Judge, Dkt. 5). This matter has been fully briefed. See Dkt. 12, 18, 19.

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After considering and reviewing the record, the Court concludes that the
Administrative Law Judge (“ALJ”) erred in in failing to credit fully the medical opinion
from examining psychologist, Tobias A. Ryan, Psy.D. Although the ALJ found that Dr.

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Ryan’s opinion was based on plaintiff’s self-reports and not supported by any clinical
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findings, the ALJ’s finding is not supported by substantial evidence as the record reflects
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ORDER ON PLAINTIFF’S COMPLAINT - 1

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that Dr. Ryan conducted a mental status examination, clinical interview, and disability

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assessment, which all lend support to Dr. Ryan’s opined limitations.

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Since the ALJ’s error is not harmless, this matter is reversed and remanded
pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social
Security (“Commissioner”) for further proceedings consistent with this Order. Because

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the ALJ's error relating to Dr. Ryan’s opinion affects the entire proceedings and plaintiff
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will be able to present new evidence and new testimony on remand, the ALJ must re8
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evaluate all of the medical evidence, reassess plaintiff’s testimony, the RFC, and the
findings at steps four and five, as necessary.
BACKGROUND

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Plaintiff, CECILIA CONTRERAS-MENDEZ, was born in 1986 and was 22 years

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old on the alleged date of disability onset of September 20, 2008. See AR. 167. Plaintiff

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completed one year of college in 2012. AR. 267. Plaintiff has worked as a customer

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service worker, sales representative/assistant, student coordinator, and a teacher’s aide.

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AR. 195. Plaintiff stopped working at her most recent job with Clark County College

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because the school year ended. AR. 194-95, 267.
According to the ALJ, plaintiff has at least the severe impairments of ulcerative

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colitis; Crohn’s disease; esophagitis; depression; post-traumatic stress disorder (“PTSD”);
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asthma; fibromyalgia; and chronic back pain. AR. 28 (citing 20 C.F.R. § 416.920(c)).
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At the time of the hearing, plaintiff was living in an apartment with her ten-yearold son. AR. 56.

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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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. 84-123. Plaintiff’s requested hearing was held before
ALJ Vadim Mozyrsky (“the ALJ”) on January 13, 2016. See AR. 53-83. On March 9,

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2016, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not
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disabled pursuant to the Social Security Act. See AR. 23-52.
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) whether the
ALJ properly evaluated the medical evidence; (2) whether the ALJ properly evaluated

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plaintiff’s testimony; (3) whether the ALJ properly assessed plaintiff’s residual functional

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capacity (RFC) and erred by basing his step five finding on his erroneous RFC

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assessment; and (4) whether this Court should exercise its discretion and remand

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plaintiff’s claim for the award of benefits. See Dkt. 12 at 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

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denial of social security benefits if the ALJ's findings are based on legal error or not
supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

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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 the ALJ properly evaluated the medical evidence.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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Plaintiff argues that the ALJ erred in evaluating the medical opinions of Tobias A.

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Ryan, Psy.D., David T. Morgan, Ph.D., Norman Staley, M.D., Robert Hoskins, M.D.,

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Vincent Gollogly, Ph.D., Eugene Kester, M.D., Heather Nash, FNP-C, Krista

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Cooperstein PA-C, and that other medical evidence is consistent with these opinions and
plaintiff’s testimony. Dkt. 12.

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A. Dr. Ryan
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On November 13, 2012, examining psychologist, Tobias A. Ryan, Psy.D.,
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diagnosed plaintiff with major depressive disorder, current episode unspecified, and rated
her GAF at 50. AR. 1085. Dr. Ryan found that plaintiff’s ability to reason, interact, and

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adapt were limited. AR. 1086. Dr. Ryan opined that plaintiff was moderately to severely

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impaired in her ability to maintain a daily/weekly work schedule. AR. 1085. Dr. Ryan

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opined that plaintiff was moderately impaired in her ability to perform detailed or

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complex tasks without special or repeated instructions and mildly impaired in her ability

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to perform simple or repetitive work type tasks. AR. 1085. Dr. Ryan opined that plaintiff

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was mildly impaired in her ability to accept instructions from supervisors and interacting

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with co-workers and/or the public. AR. 1085.
The ALJ gave significant weight to Dr. Ryan’s opinion that plaintiff is moderately

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impaired in her ability to perform detailed task and mildly impaired in her ability to
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perform simple tasks. AR. 43. The ALJ gave limited weight to Dr. Ryan’s opinion that
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plaintiff has moderate to severe limitations in her ability to maintain a regular work
schedule reasoning that Dr. Ryan’s assessment was based largely on plaintiff’s selfreports and lacked corroborating evidence. AR. 43.

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The Court notes that plaintiff only challenges the ALJ’s assignment of limited

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weight to Dr. Ryan’s opinion that plaintiff is moderately to severely impaired in her

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ability to maintain a daily/weekly work schedule, and does not challenge the ALJ’s

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evaluation of Dr. Ryan’s opinion related to plaintiff’s GAF score or her mild to moderate
limitations. See Dkt. 12.

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The ALJ found that Dr. Ryan did not support the opined limitations with objective
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evidence and relied largely on plaintiff’s self-reports. AR. 43. An ALJ need not accept
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the opinion of a treating physician, “if that opinion is brief, conclusory, and inadequately
supported by clinical findings” or “by the record as a whole.” Batson v. Comm’r of Soc.

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Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). And, “[an] ALJ may reject a treating

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physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-reports that have

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been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

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Cir. 2008) (quoting Morgan v. Comm’r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.

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1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)).

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This situation is distinguishable from one in which the doctor describes his or her
own observations in support of the assessments and opinions. See Ryan v. Comm’r Soc.
Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) (“an ALJ does not provide clear

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and convincing reasons for rejecting an examining physician’s opinion by questioning the
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credibility of the patient’s complaints where the doctor does not discredit those
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complaints and supports his ultimate opinion with his own observations”); see also
Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). According to the Ninth
Circuit, “when an opinion is not more heavily based on a patient’s self-reports than on

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clinical observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v.

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Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (citing Ryan, 528 F.3d at 1199-1200).

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The Ninth Circuit clarified that professional assessment of mental illness is

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different from professional assessment of physical illness, and observed that psychiatric
evaluations necessarily analyze a patient’s self-reports:

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[A]s two other circuits have acknowledged, “[t]he report of a psychiatrist
should not be rejected simply because of the relative imprecision of the
psychiatric methodology.” . . . Psychiatric evaluations may appear
subjective, especially compared to evaluation in other medical fields.
Diagnoses will always depend in part on the patient's self-report, as well as
on the clinician's observations of the patient. But such is the nature of
psychiatry. . . . Thus, the rule allowing an ALJ to reject opinions based on
self-reports does not apply in the same manner to opinions regarding mental
illness.

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Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting Blankenship v. Bowen,

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874 F.2d 1116, 1121 (6th Cir. 1989) (internal citations omitted)). Thus, “when mental

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illness is the basis of a disability claim, clinical [findings] may consist of the diagnoses

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and observations of professionals trained in the field of psychopathology.” Sanchez v.

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Apfel, 85 F.Supp.2d 986, 992 (C.D. Cal. 2000); see also Sprague v. Bowen, 812 F.2d

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1226, 1232 (9th Cir. 1987) (an opinion based on clinical observations supporting a
diagnosis of depression is competent [psychiatric] evidence). Both a clinical interview

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and a mental status examination are “objective measures” that “cannot be discounted as a
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‘self-report.’ ” Buck, 869 F.3d at 1049 (9th Cir. 2017) (finding a clinical interview and
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mental status evaluation to be “objective measures” that “cannot be discounted as a ‘selfreport’”).

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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Here, Dr. Ryan performed a mental status examination (“MSE”) listing a number

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of results. For example, Dr. Ryan found that plaintiff’s mood was depressed, and her

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affect was labile, but congruent. AR. 1081. Dr. Ryan reported that plaintiff’s answers to

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interview questions indicated limited adaptability, insight, and judgment. AR 1082. Dr.
Ryan found that plaintiff’s abstract thinking was limited, and that she struggled to find

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the common link between two familiar objects and interpret familiar and unfamiliar
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objects, which may indicate problems generalizing creatively to new situations. AR.
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1082. The Court notes that “experienced clinicians attend to detail and subtlety in
behavior, such as the affect accompanying thought or ideas, the significance of gesture or

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mannerism, and the unspoken message of conversation. The Mental Status Examination

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allows the organization, completion and communication of these observations.” Paula T.

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Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination 3 (Oxford

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University Press 1993). “Like the physical examination, the Mental Status Examination is

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termed the objective portion of the patient evaluation.” Id. at 4 (emphasis in original).

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The MSE is conducted by medical professionals skilled and experienced in
psychology and mental health. Although “anyone can have a conversation with a patient,
[] appropriate knowledge, vocabulary and skills can elevate the clinician’s ‘conversation’

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to a ‘mental status examination.’” Trzepacz and Baker, supra, The Psychiatric Mental
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Status Examination 3. A mental health professional is trained to observe patients for signs
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of their mental health not rendered obvious by the patient’s subjective reports, in part
because the patient’s self-reported history is “biased by their understanding, experiences,
intellect and personality” (id. at 4), and, in part, because it is not uncommon for a person

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suffering from a mental illness to be unaware that her “condition reflects a potentially

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serious mental illness.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation

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omitted).

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Dr. Ryan also administered the World Health Organization Disability Assessment
Schedule 2.0 (“WHODAS”). AR. 1082. Dr. Ryan found that plaintiff’s scores indicate a

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severe level of difficulty in fulfilling household responsibilities and completing
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household tasks, and overall severe level of difficulty with participation in society,
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including participating in community activities or doing things by herself for pleasure or
relaxation. AR. 1082-83. Dr. Ryan found that plaintiff’s scores also indicated an extreme
level of difficulty with work-related activities. AR. 1083.
In addition, Dr. Ryan reported his own observations in support of his assessment

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and opinion. See Ryan, 528 F.3d at 1199-1200. He observed that plaintiff showed signs of

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negative thoughts, low self-worth, labile affect, and low mood. AR. 1081, 1084. No part

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of Dr. Ryan’s evaluation questioned or discredited plaintiff’s reports. See AR. 1081-

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1086.

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Defendant points to inconsistencies between plaintiff’s reports to Dr. Ryan and
other evidence in the record. Dkt. 18 at 11-12. However, the ALJ did not state that he was

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rejecting Dr. Ryan’s opinion on this basis. AR. 43. The Court may draw reasonable
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inferences from the ALJ’s opinion, but cannot consider defendant’s post hoc
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rationalizations about what the ALJ considered. See Magallanes v. Bowen, 881 F.2d 747,
775 (9th Cir. 1989). According to the Ninth Circuit, “[l]ong-standing principles of
administrative law require us to review the ALJ’s decision based on the reasoning and

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actual findings offered by the ALJ - - not post hoc rationalizations that attempt to intuit

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what the adjudicator may Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“we

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may not uphold an agency’s decision on a ground not actually relied on by the agency”)

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(citing Chenery Corp, 332 U.S. at 196).
In conclusion, Dr. Ryan based his opinion on objective measures which are

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consistent with his findings. See Buck, 869 F.3d at 1049 (internal citations omitted); See
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Garrison, 759 F.3d at 1014 n.17. The ALJ committed legal error by discounting Dr.
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Ryan’s opinion related to plaintiff’s ability to maintain a daily/weekly schedule due to a
supposed lack of clinical findings as well as a purportedly problematic reliance on

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plaintiff’s self-reports. The ALJ’s reasoning was not based on substantial evidence. See

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Lester, 81 F.3d at 830-31 (when an examining physician’s opinion is contradicted, that

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opinion can be rejected “for specific and legitimate reasons that are supported by

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substantial evidence in the record”).

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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, 454 F.3d at 1054 (collecting cases)). The Ninth Circuit has reaffirmed the
explanation in Stout that “ALJ errors in social security are harmless if they are

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‘inconsequential to the ultimate nondisability determination’ and that ‘a reviewing court
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cannot consider [an] error harmless unless it can confidently conclude that no reasonable
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ALJ, when fully crediting the testimony, could have reached a different disability
determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout, 454
F.3d at 1055-56).

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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)).

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As noted, Dr. Ryan opined that plaintiff had marked to severe limitations in her
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ability to maintain a daily/weekly work schedule. AR 1085. As fully crediting this
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opinion likely would alter the ultimate disability determination, the Court cannot
conclude with confidence “ ‘that no reasonable ALJ, when fully crediting the testimony,

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could have reached a different disability determination.’ ” See Marsh, 792 F.3d at 1173

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(citing Stout, 454 F.3d at 1055-56). Therefore, the ALJ’s error is not harmless and this

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matter is reversed and remanded for further administrative proceedings.

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B. Drs. Gollogly, Staley, Kester, Hoskins, and Morgan, Ms. Cooperstein, Ms.
Nash, and other medical evidence

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In Section I.A., the Court concludes that the ALJ committed harmful error in
assessing the opinion of Dr. Ryan, and that this case be remanded for further

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administrative proceedings. In light of this finding, and because plaintiff will be able to

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present new evidence and new testimony on remand, the ALJ’s assessment of all of the

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medical evidence should be evaluated anew following remand of this matter. See

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Program Operations Manual System (POMS), GN 03106.036 Court Remand Orders,

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https://secure.ssa.gov/poms.nsf/lnx/0203106036 (last visited September 12, 2018) (“[A]

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court order vacating the [ALJ's] prior decision and remanding the case to the

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Commissioner voids the prior decision ... and thus returns the case to the status of a claim

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“pending” before SSA….The ALJ processes the case in the same way as a regular

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hearing and issues a decision.”); see also Bartlett v. Berryhill, 2017 WL 2464117, at *4

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(W.D. Wash. June 7, 2017).
(2) Did the ALJ fail to properly evaluate plaintiff’s testimony?

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Similarly, the evaluation of a claimant’s statements regarding limitations relies in
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part on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c); SSR 16-3p,
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2016 SSR LEXIS 4. Therefore, plaintiff’s testimony and statements should be assessed
anew following remand of this matter.
(3) Did the ALJ err in his assessment of plaintiff’s RFC and the findings at steps
four and five?
Again, on remand, the ALJ must also reassess plaintiff’s RFC. See Social Security

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Ruling 96-8p (“The RFC assessment must always consider and address medical source
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opinions.”); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)
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(“an RFC that fails to take into account a claimant’s limitations is defective”). Because
the ALJ must reassess plaintiff’s RFC on remand, he must also re-evaluate the findings at

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steps four and five to determine if plaintiff can perform her past relevant work or if there

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are jobs existing in significant numbers in the national economy that plaintiff can perform

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in light of the new RFC. See Watson v. Astrue, 2010 WL 4269545, *5 (C.D. Cal. Oct. 22,

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2010) (finding the ALJ’s RFC determination and hypothetical questions posed to the

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vocational expert defective when the ALJ did not properly consider a doctor’s findings).

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ORDER ON PLAINTIFF’S COMPLAINT - 11

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(4)

Should this case be remanded for an award of benefits or remanded for
further administrative proceedings?

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Plaintiff contends that this case should be remanded for an award of benefits, or in
the alternative, remanded for further administrative proceedings. Dkt. 12 at 18-20.

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Generally, when the Social Security Administration does not determine a

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claimant’s application properly, “‘the proper course, except in rare circumstances, is to

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remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart,

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379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put

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forth a “test for determining when [improperly rejected] evidence should be credited and

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an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th
Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)).
At the first step, the court should determine if “the ALJ has failed to provide

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legally sufficient reasons for rejecting [the particular] evidence.” Smolen, 80 F.3d at 1292
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(citations omitted). The Court has done so here.
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Next, as stated recently by the Ninth Circuit:

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Second, we turn to the question whether [or not] further administrative
proceedings would be useful. In evaluating this issue, we consider [if] the
record as a whole is free from conflicts, ambiguities, or gaps, [if] all
factual issues have been resolved, and [if] the claimant’s entitlement to
benefits is clear under the applicable legal rules.

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Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014)

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(citations omitted).

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Here, the record as a whole is not free from conflicts and ambiguities, including
conflicts in the medical evidence and allegations potentially inconsistent with aspects of

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ORDER ON PLAINTIFF’S COMPLAINT - 12

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the record. See e.g. AR. 93, 110, 1085 (Dr. Ryan opined that plaintiff has moderate to

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severe limitations in her ability to maintain a daily/weekly work schedule, while state

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agency reviewing psychological consultants, Drs. Gollogly and Kester, opined that

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plaintiff was only moderately limited in her ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances.).

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Therefore, remand for further administrative proceedings is appropriate. See Treichler v.
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Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (citations omitted)
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(reversal with a direction to award benefits is inappropriate if further administrative
proceedings would serve a useful purpose).
On remand, the ALJ is instructed to (1) reconsider all of the medical and non-

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medical evidence; (2) reassess plaintiff's subjective symptom testimony concerning

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plaintiff's limitations in light of any new and reconsidered evidence; and (3) re-evaluate

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plaintiff’s RFC and findings at steps four and five, if necessary.

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CONCLUSION

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

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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.

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JUDGMENT should be for plaintiff and the case should be closed.
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Dated this 26th day of September, 2018.
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A

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J. Richard Creatura
United States Magistrate Judge

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