Fondell v. Berryhill

Filing 14

ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Hon. Brian A Tsuchida. (KMP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RHONDA ROXANNE FONDELL,
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Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for Operations,

CASE NO. C17-5938-BAT
ORDER REVERSING AND
REMANDING FOR FURTHER
ADMINISTRATIVE PROCEEDINGS

Defendant.

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Rhonda Roxanne Fondell seeks review of the denial of her applications for Supplemental

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Security Income and Disability Insurance Benefits. She contends the ALJ erred by (1) evaluating

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two mental conditions together as one severe impairment; (2) failing to associate any physical

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limitations to the severe impairment of fibromyalgia; (3) finding her capable of working at the

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light exertional level rather than the sedentary level or less; (4) improperly rejecting lay witness

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evidence; and (5) relying on vocational expert testimony that did not satisfy the Commissioner’s

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burden at step five, failing to require the VE to provide proof of her testimony at the hearing, and

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preventing Fondell’s counsel from cross examining the VE. Dkt. 10. The Court REVERSES the

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Commissioner’s final decision and REMANDS the matter for further administrative proceedings

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under sentence four of 42 U.S.C. § 405(g).

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ORDER REVERSING AND REMANDING FOR FURTHER
ADMINISTRATIVE PROCEEDINGS - 1

BACKGROUND

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Ms. Fondell is currently 52 years old, has a high school education, and has worked as a

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hand packager, book binder, industrial truck operator, sausage maker, and construction worker.

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Tr. 52, 78, 356. In December 2013, she applied for benefits, alleging disability as of July 2,

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2013. Tr. 356, 358. After her applications were denied, the ALJ conducted a hearing and, on

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August 31, 2016, issued a decision finding Ms. Fondell not disabled. Tr. 20-38. The Appeals

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Council denied Ms. Fondell’s request for review, making the ALJ’s decision the Commissioner’s

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final decision. Tr. 1.
THE ALJ’S DECISION

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Using the five-step disability evaluation process,1 the ALJ found that Ms. Fondell had not

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engaged in substantial gainful activity since the alleged onset date; she had the following severe

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impairments: anxiety disorder (including posttraumatic stress disorder (PTSD)), depressive

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disorder, fibromyalgia syndrome, degenerative disc disease of the cervical spine and lumbar

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spine, and status-post left rotator cuff repair; and that these impairments did not meet or equal

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the requirements of a listed impairment.2 Tr. 25. The ALJ found that Ms. Fondell had the

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residual functional capacity to perform light work except that she could stand and/or walk for 4

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hours out of 8 hours and sit for 6 hours out of 8 hours; she could frequently climb ramps and

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stairs but never climb ladders, ropes, or scaffolds; she could occasionally balance, stoop, kneel,

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crouch, and crawl; she could not perform overhead reaching with the non-dominant left upper

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extremity; she would need to avoid concentrated exposure to moving machinery and unprotected

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heights; she should avoid concentrated exposure to extreme cold. Tr. 27. The ALJ found that Ms.

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20 C.F.R. §§ 404.1520, 416.920.

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20 C.F.R. Part 404, Subpart P. Appendix 1.

ORDER REVERSING AND REMANDING FOR FURTHER
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Fondell was unable to perform her past work, but there were jobs in significant numbers in the

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national economy that she could perform. Tr. 36-37. The ALJ therefore found Ms. Fondell not

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disabled. Tr. 38.
DISCUSSION

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A.

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Ms. Fondell argues that the ALJ erred at step two by combining two separately diagnosed

Anxiety disorder and PTSD

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mental conditions—anxiety disorder and PTSD, each with their own set of symptoms—into one

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severe impairment, causing limitations to be left out of the residual functional capacity finding.

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Dkt. 10 at 3. She points to two examining doctors’ diagnoses of PTSD and associated symptoms

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and argues that the ALJ erred in giving their opinions little weight. Id. at 4-5.

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Step two, where the claimant bears the burden of establishing that she has a medically

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determinable severe impairment or combination of impairments, is a “de minimis screening

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device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

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Even if an ALJ erroneously finds an impairment to be non-severe, the error is harmless if the

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ALJ properly considers the limitations caused by the impairment at the later steps. Lewis v.

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Astrue, 498 F.3d 909, 910 (9th Cir. 2007).

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Here, the ALJ did not find PTSD to be non-severe, but instead considered it to be

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“included” within Ms. Fondell’s anxiety disorder. The mere fact that the ALJ considered one

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disorder to be included within another does not itself establish a step-two error. Both disorders

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fall under the category of anxiety disorders in the Social Security listings and the DSM-IV.3 The

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ALJ found that both Ms. Fondell’s anxiety disorder and PTSD were medically determinable

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Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 34
(4th ed. text rev. 1994).
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ORDER REVERSING AND REMANDING FOR FURTHER
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severe impairments, and considered whether Ms. Fondell’s impairments met or equaled listing

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12.06, the appropriate listing for all anxiety disorders, including PTSD. Thus the issue turns on

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Ms. Fondell’s assertion that the ALJ improperly excluded limitations caused by her PTSD in

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evaluating her residual functional capacity. This argument is based on the ALJ’s giving little

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weight to the opinions of two examining doctors, Dr. Jorgenson and Dr. Neims.

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In general, the ALJ should give more weight to the opinion of a treating doctor than to

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that of a non-treating doctor, and more weight to the opinion of an examining doctor than to that

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of a non-examining doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where it is not

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contradicted by another doctor, the ALJ may reject a treating or examining doctor’s opinion only

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for “clear and convincing reasons.” Id. at 830-31. Where contradicted, the ALJ may not reject a

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treating or examining doctor’s opinion without “specific and legitimate reasons” that are

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supported by substantial evidence in the record. Id. at 830-31 (quoting Murray v. Heckler, 722

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F.2d 499, 502 (9th Cir. 1983)). An ALJ does this by setting out a detailed and thorough summary

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of the facts and conflicting evidence, stating her interpretation of the facts and evidence, and

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making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must do

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more than offer her conclusions; she must also explain why her interpretation, rather than the

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treating doctor’s interpretation, is correct Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing

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Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

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Alicia Jorgenson, M.D., examined Ms. Fondell in May 2014 and diagnosed PTSD,

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chronic, with panic attacks, and major depressive disorder, moderate, recurrent. Tr. 615. Dr.

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Jorgenson opined that Ms. Fondell could perform simple and repetitive tasks, but would have

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more difficulty with detailed and complex tasks. Tr. 616. She found some evidence of

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concentration and memory impairment, which Dr. Jorgensen opined was related to Ms. Fondell’s

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ORDER REVERSING AND REMANDING FOR FURTHER
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level of anxiety. Id. She opined Ms. Fondell could accept instructions from supervisors but

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would have significant difficulty interacting with coworkers and the public. Id. Dr. Jorgenson

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opined that Ms. Fondell would not be able to maintain regular attendance in the workplace due to

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her lack of sleep schedule, could not perform a normal workweek without significant interruption

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from her psychiatric condition, and would not deal well with the usual stress encountered in a

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competitive work environment. Id. She assigned a global assessment of functioning score (GAF)

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of 43, indicating serious symptoms or a serious impairment in social, occupational, or school

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functioning. Id.; Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders

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(DSM-IV), 34 (4th ed. text rev. 1994).

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The ALJ gave little weight to Dr. Jorgenson’s opinion, noting that Dr. Jorgenson was a

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one-time examining source and did not review treatment notes from Ms. Fondell’s therapist, Dr.

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Rechel, whose opinion the ALJ gave more weight. Tr. 35. The ALJ also found that Dr.

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Jorgenson’s opinion was inconsistent with her examination findings, noting that while Dr.

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Jorgenson stated Ms. Fondell had a restricted affect and depressed/anxious mood, she was

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appropriately dressed, wore makeup, was polite and cooperative, with good eye contact, no

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psychomotor agitation or retardation, linear and logical thought processes, and no signs of

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suicidal/homicidal ideation or psychosis. Id. The ALJ found that while Ms. Fondell showed some

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deficits on mental status testing, Dr. Jorgenson interpreted the results as still consistent with the

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ability to perform simple and repetitive tasks. Id. The ALJ found that Dr. Jorgenson’s conclusion

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that Ms. Fondell could not work appeared to rely on her anxiety and mood complaints, but the

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record showed that her symptoms improved with medication, they were not as severe as

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described, and her complaints were inconsistent with treatment notes, which regularly showed

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normal mood and affect. Tr. 35. And the ALJ found that Ms. Fondell exaggerated her claim that

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ORDER REVERSING AND REMANDING FOR FURTHER
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she cannot read, which detracted from her subjective allegations, and that while Dr. Jorgenson

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stated that she lacked a sleep schedule, her treating therapist suspected that this problem was

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related to her sleep hygiene practices. Tr. 35.

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Here, the ALJ relied primarily on her own interpretation of the medical evidence to

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discount Dr. Jorgenson’s opinion. The ALJ recounted many of Dr. Jorgenson’s examination

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findings and concluded that these findings did not support Dr. Jorgenson’s opinion or reached

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the opposite conclusion as Dr. Jorgenson. But the ALJ may not substitute her own interpretation

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of the medical evidence for the opinion of a medical professional. See Tackett v. Apfel, 180 F.3d

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1094, 1102-03 (9th Cir. 1999). The ALJ impermissibly relied on her own conclusions from the

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examination findings in evaluating Dr. Jorgenson’s opinion.

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Dan Neims, Psy.D., examined Ms. Fondell in October 2015 and diagnosed PTSD,

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chronic; depressive disorder NOS, moderate; psychological factors affecting physical condition;

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rule out pain disorder; learning disorder NOS; and rule out cognitive disorder secondary to

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closed head injury. Tr. 850. He opined that she would have marked difficulty in the ability to

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adapt to changes in a routine work setting, make simple work-related decisions, ask simple

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questions or request assistance, communicate and perform effectively in a work setting, complete

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a normal work day and work week without interruptions from psychologically based symptoms,

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and maintain appropriate behavior in a work setting, with generally moderate limitations in other

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domains. Tr. 851. He assigned a GAF score of 44. Id.

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The ALJ gave Dr. Neims’s opinion little weight, noting that Dr. Neims was also a one-

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time examining doctor and did not review any treatment notes. Tr. 35. The ALJ also found that

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Dr. Neims checked boxes indicating significant mental limitations but provided no explanation.

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Id. The ALJ found that Dr. Neims’s observation that Ms. Fondell was sad, worried, and

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ORDER REVERSING AND REMANDING FOR FURTHER
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withdrawn appeared inconsistent with treatment notes, which regularly indicated that she had

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clear speech and normal mood and affect. Id. The ALJ found that Dr. Neims’s interpreted his

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mental status examination results as consistent with the ability to understand, remember, and

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persist on very short and simple instructions, which the ALJ found to be inconsistent with the

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marked limitations Dr. Neims opined. Id. And the ALJ found that Dr. Neims relied in part on

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Ms. Fondell’s responses to self-reported questionnaires, which the ALJ found to contain

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discrepancies to her reports elsewhere in the record. Id.
The ALJ found that Dr. Neims’s opinion that Ms. Fondell had no or mild limitations in

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her ability to follow very short and simple instructions4 did not support his opinion of marked

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limitations in other areas. Tr. 35. The ALJ does not explain how the ability to follow simple

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instructions is inconsistent with—or even connected in any way to—functional limitations in

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other areas, such as adapting to changes or maintaining appropriate behavior in a routine work

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setting, both among the areas where Dr. Neims opined marked limitations. And Dr. Neims made

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no such connection. It was the ALJ who determined that Ms. Fondell’s ability to follow simple

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instructions undermined limitations in other functional areas. Indeed, if such a connection

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existed, there would be no reason to inquire about limitations in any other areas. With this

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finding, the ALJ is again impermissibly substituting her own interpretation of the medical

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evidence for the doctor’s own interpretation. Tackett, 180 F.3d at 1102-03.
The ALJ gave other reasons for rejecting Dr. Jorgenson’s and Dr. Neims’s opinions.

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Assuming these other reasons are valid, the error in relying on this impermissible reason would

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be harmless if it were inconsequential to the ALJ’s ultimate nondisability determination. See

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This was the only area where Dr. Neims opined Ms. Fondell had no or mild limitations. Tr.
851.
ORDER REVERSING AND REMANDING FOR FURTHER
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Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012). But the Court cannot say that this is the

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case. The ALJ impermissibly imposed her own analysis of the medical evidence in place of the

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medical opinions and used this analysis to reject these opinions out of hand. This error was not

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inconsequential to the ultimate decision. Although the Court finds no error in the ALJ’s

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classification of Ms. Fondell’s PTSD as being “included” within her anxiety disorder, the ALJ’s

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errors in evaluating the opinions about her PTSD are harmful and require remand.

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B.

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Ms. Fondell argues that the ALJ erred by failing to associate any physical limitations to

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Fibromyalgia

the impairment of fibromyalgia. Dkt. 10 at 7. She lists the symptoms fibromyalgia can cause and

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common treatments. Id. She then points to the opinions of treating doctor Hector Reyes, M.D.,

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who opined in November 2016 and March 2016 that due to her physical and mental conditions

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and the medication she was taking, she was unable to be gainfully employed. Tr. 910, 1084. Ms.

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Fondell argues that the ALJ improperly rejected these opinions. Dkt. 10 at 7.

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Despite the fact that the error Ms. Fondell identifies is a failure to connect any physical

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limitations to fibromyalgia, she does not specify what physical limitations the ALJ should have

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included or associated with fibromyalgia but did not, and fails to identify any medical evidence

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demonstrating such limitations. The Court cannot find error based on such a vague and

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nonspecific argument.

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C.

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Ms. Fondell argues that the medical evidence shows that she is able to work at the

Sedentary vs. light work

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sedentary or less-than-sedentary level, rather than at the light level as the ALJ found. Dkt. 10 at

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8. She points to the medical evidence from Robert Billings, M.D., and Dr. Reyes. Id. at 8-9.

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Dr. Billings examined Ms. Fondell in October 2013 and opined that she was severely

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limited, defined as unable to meet the demands of sedentary work, because of lumbar pain. Tr.

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533-34. The ALJ gave this opinion little weight, finding that it was issued within a few months

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of Ms. Fondell’s July 2013 motor vehicle accident, and Dr. Billings estimated that that level of

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limitation would last six months. Tr. 33, 534. To be disabling, an impairment must last for at

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least 12 months. 42 U.S.C. § 423(d)(1)(A). The ALJ validly considered the proximity of Dr.

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Billings’ opinion to Ms. Fondell’s motor vehicle accident and the fact that he limited his opinion

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to six months’ duration. The ALJ did not err by giving less weight to an opinion about a recent

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injury limited to a short time period.

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Dr. Reyes completed a physical functional evaluation in September 2015 in which he

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opined that Ms. Fondell was severely limited due to fibromyalgia. Tr. 803. The ALJ gave this

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opinion little weight, finding that while Ms. Fondell has physical limitations due to fibromyalgia

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and her spinal and left shoulder conditions, Dr. Reyes’s opinion was inconsistent with the benign

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imagining studies and examination findings. Tr. 33. Ms. Fondell argues that the examination

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findings satisfying the diagnostic criteria for fibromyalgia and the MRI scans of her neck,

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shoulder, and low back contradict this finding. Dkt. 10 at 8-9.

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An ALJ may give little weight to an opinion that is inconsistent with other evidence in

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the record. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). But the

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ALJ may not impose her own interpretation of the evidence without explaining why her

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interpretation, rather than the doctor’s, is correct. Orn, 495 F.3d at 632. Here, the ALJ provided

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no such explanation, but merely concluded that Dr. Reyes’s opinion was inconsistent with

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various unspecified findings. This conclusory finding was not a valid reason to reject Dr. Reyes’s

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ADMINISTRATIVE PROCEEDINGS - 9

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opinion. As with the ALJ’s analysis of Dr. Jorgenson’s and Dr. Neims’s opinions, the Court

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finds this error was not harmless and the ALJ should reevaluate the opinion on remand.

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Although Ms. Fondell framed this issue as an error in finding she could perform light

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work instead of sedentary or less-than-sedentary work, the Court declines to direct the ALJ to

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find Ms. Fondell capable of any particular level of work, but rather to reevaluate the evidence

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and formulate a new residual functional capacity based on that reevaluation.

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D.

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Ms. Fondell argues that the ALJ erred in rejecting the lay witness evidence from Denise

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Lay witness evidence

Franzel and Greg Cornell. Dkt. 10 at 13. Lay testimony as to a claimant’s symptoms is

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competent evidence that the ALJ must take into account, unless the ALJ expressly determines to

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disregard such testimony and gives specific reasons germane to each witness for doing so. See

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Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006).

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Mr. Cornell wrote a letter in November 2015 in which he described his observations of

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her daily activities and how those have changed since her motor vehicle accident. Tr. 471-72.

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The ALJ gave the statement little weight, finding that Mr. Cornell identified himself as a friend

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and roommate of Ms. Fondell, but the record is replete with references to him as her boyfriend.

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Tr. 36. The ALJ also found that Mr. Cornell’s description of Ms. Fondell’s physical and mental

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limitations was inconsistent with the imaging studies, physical examination findings, counseling

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records, and the opinion of Ms. Fondell’s treating therapist. Id.

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The ALJ does not explain why the different descriptions of Mr. Cornell’s relationship

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with Ms. Fondell are a reason to reject the opinion. And the ALJ uses the same conclusory

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statement to reject Mr. Cornell’s opinion she previously used for Dr. Reyes’s opinion. These

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ORDER REVERSING AND REMANDING FOR FURTHER
ADMINISTRATIVE PROCEEDINGS - 10

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were not specific or germane reasons for rejecting his statement. The ALJ should reevaluate the

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statement on remand.

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Ms. Franzel stated in April 2016 that she helped Ms. Fondell with daily activities,

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including household chores, yard work, and grocery shopping because Ms. Fondell is in constant

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pain. Tr. 476. The ALJ gave some weight to Ms. Franzel’s report, but found that Ms. Fondell’s

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pain and fatigue were accommodated in the residual functional capacity finding. Tr. 36. Because

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the Court is directing the ALJ to reevaluate the medical evidence connected to Ms. Fondell’s

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pain and fatigue, the ALJ should also reevaluate this lay witness evidence relating to these same

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issues.

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E.

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Ms. Fondell argues that the VE’s testimony did not satisfy the Commissioner’s burden to

Vocational expert testimony

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establish the existence of significant numbers of jobs in the national economy that Ms. Fondell

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can perform, that the ALJ erred by refusing to require the VE to provide proof of her testimony

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at the hearing, and prevented Ms. Fondell’s counsel from properly cross-examining the VE at the

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hearing. Dkt. 10 at 14. Because of the errors in the ALJ’s evaluation of Ms. Fondell’s residual

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functional capacity, the VE’s testimony based on that RFC cannot provide substantial evidence

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to support a finding of non-disability. However, because the Court is remanding this case for

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further administrative proceedings, including a reevaluation of Ms. Fondell’s residual functional

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capacity and steps four and five, the remaining issues Ms. Fondell raises regarding the VE

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testimony are rendered moot.

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CONCLUSION
For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is
REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

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ORDER REVERSING AND REMANDING FOR FURTHER
ADMINISTRATIVE PROCEEDINGS - 11

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On remand, the ALJ shall reevaluate the opinions of Dr. Jorgenson, Dr. Neims, and Dr. Reyes,

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and the lay witness statements. The ALJ shall further develop the record and reevaluate the

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evidence as needed to reevaluate Ms. Fondell’s residual functional capacity and redo steps four

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and five of the disability evaluation process.

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DATED this 11th day of May, 2018.

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A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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